*1 (Slip Opinion) OCTOBER TERM, 2022
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
Syllabus
ALLEN, ALABAMA SECRETARY OF STATE, ET AL . v .
MILLIGAN ET AL .
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
No. 21–1086. Argued October 4, 2022—Decided June 8, 2023* The issue presented is whether the districting plan adopted by the State
of Alabama for its 2022 congressional elections likely violated §2 of the Voting Rights Act, 52 U. S. C. §10301. As originally enacted in 1965, §2 of the Act tracked the language of the Fifteenth Amendment, providing that “[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous con- dition of servitude.” In City of Mobile v. Bolden , 446 U. S. 55, this Court held that the Fifteenth Amendment—and thus §2—prohibits States from acting with a “racially discriminatory motivation” or an “invidious purpose” to discriminate, but it does not prohibit laws that are discriminatory only in effect. at 61–65 (plurality opinion). Criticism followed, with many viewing Mobile ’s intent test as not suf- ficiently protective of voting rights. But others believed that adoption of an effects test would inevitably require a focus on proportionality, calling voting laws into question whenever a minority group won fewer seats in the legislature than its share of the population. Congress ul- timately resolved this debate in 1982, reaching a bipartisan compro- mise that amended §2 to incorporate both an effects test and a robust disclaimer that “nothing” in §2 “establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” §10301(b).
——————
*Together with No. 21–1087, Allen, Alabama Secretary of State, et al . v. Caster et al. , on certiorari before judgment to the United States Court of Appeals for the Eleventh Circuit.
Syllabus
In 1992, §2 litigation challenging the State of Alabama’s then-exist- ing districting map resulted in the State’s first majority-black district and, subsequently, the State’s first black Representative since 1877. Alabama’s congressional map has remained remarkably similar since that litigation. Following the 2020 decennial census, a group of plain- tiffs led by Alabama legislator Bobby Singleton sued the State, arguing that the State’s population growth rendered the existing congressional map malapportioned and racially gerrymandered in violation of the Equal Protection Clause. While litigation was proceeding, the Ala- bama Legislature’s Committee on Reapportionment drew a new dis- tricting map that would reflect the distribution of the prior decade’s population growth across the State. The resulting map largely resem- bled the 2011 map on which it was based and similarly produced only one district in which black voters constituted a majority. That new map was signed into law as HB1.
Three groups of Alabama citizens brought suit seeking to stop Ala- bama’s Secretary of State from conducting congressional elections un- der HB1. One group ( Caster plaintiffs) challenged HB1 as invalid un- der §2. Another group ( Milligan plaintiffs) brought claims under §2 and the Equal Protection Clause of the Fourteenth Amendment. And a third group (the Singleton plaintiffs) amended the complaint in their ongoing litigation to challenge HB1 as a racial gerrymander under the Equal Protection Clause. A three-judge District Court was convened, and the Singleton and Milligan actions were consolidated before that District Court for purposes of preliminary injunction proceedings, while Caster proceeded before one of the judges on a parallel track. After an extensive hearing, the District Court concluded in a 227-page opinion that the question whether HB1 likely violated §2 was not “close.” The Court preliminarily enjoined Alabama from using HB1 in forthcoming elections. The same relief was ordered in Caster. Held : The Court affirms the District Court’s determination that plain-
tiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2. Pp. 9–22, 25–34.
(a) The District Court faithfully applied this Court’s precedents in concluding that HB1 likely violates §2. Pp. 9–15.
(1) This Court first addressed the 1982 amendments to §2 in
Thornburg
v.
Gingles
,
Syllabus
voters consistently prefer different candidates” and where minority voters are submerged in a majority voting population that “regularly defeat[s]” their choices. Ibid.
To prove a §2 violation under
Gingles
, plaintiffs must satisfy three
“preconditions.”
Id.
, at 50. First, the “minority group must be suffi-
ciently large and [geographically] compact to constitute a majority in
a reasonably configured district.”
Wisconsin Legislature
v.
Wisconsin
Elections Comm’n
,
(2) The extensive record in these cases supports the District Court’s conclusion that plaintiffs’ §2 claim was likely to succeed under Gingles . As to the first Gingles precondition, the District Court cor- rectly found that black voters could constitute a majority in a second district that was “reasonably configured.” The plaintiffs adduced eleven illustrative districting maps that Alabama could enact, at least one of which contained two majority-black districts that comported with traditional districting criteria. With respect to the compactness criteria, for example, the District Court explained that the maps sub- mitted by one expert “perform[ed] generally better on average than” did HB1, and contained no “bizarre shapes, or any other obvious irreg- ularities.” Plaintiffs’ maps contained equal populations, were contig- uous, and respected existing political subdivisions. Indeed, some of plaintiffs’ proposed maps split the same (or even fewer) county lines than the State’s.
The Court finds unpersuasive the State’s argument that plaintiffs’ maps were not reasonably configured because they failed to keep to- gether the Gulf Coast region. Even if that region is a traditional com- munity of interest, the District Court found the evidence insufficient to sustain Alabama’s argument that no legitimate reason could exist to split it. Moreover, the District Court found that plaintiffs’ maps were reasonably configured because they joined together a different community of interest called the Black Belt—a community with a high
Syllabus
proportion of similarly situated black voters who share a lineal con- nection to “the many enslaved people brought there to work in the an- tebellum period.”
As to the second and third Gingles preconditions, the District Court determined that there was “no serious dispute that Black voters are politically cohesive, nor that the challenged districts’ white majority votes sufficiently as a bloc to usually defeat Black voters’ preferred candidate.” The court noted that, “on average, Black voters supported their candidates of choice with 92.3% of the vote” while “white voters supported Black-preferred candidates with 15.4% of the vote.” Even Alabama’s expert conceded “that the candidates preferred by white voters in the areas that he looked at regularly defeat the candidates preferred by Black voters.” Finally, the District Court concluded that plaintiffs had carried their burden at the totality of circumstances stage given the racial polarization of elections in Alabama, where “Black Alabamians enjoy virtually zero success in statewide elections” and where “Alabama’s extensive history of repugnant racial and vot- ing-related discrimination is undeniable and well documented.” The Court sees no reason to disturb the District Court’s careful factual findings, which are subject to clear error review and have gone unchal- lenged by Alabama in any event. Pp. 11–15.
(b) The Court declines to remake its §2 jurisprudence in line with Alabama’s “race-neutral benchmark” theory.
(1) The Court rejects the State’s contention that adopting the race- neutral benchmark as the point of comparison in §2 cases would best match the text of the VRA. Section 2 requires political processes in a State to be “equally open” such that minority voters do not “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” §10301(b). Under the Court’s precedents, a district is not equally open when minority voters face—unlike their majority peers—bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter. Alabama would ignore this precedent in favor of a rationale that a State’s map cannot “abridge[ ]” a person’s right to vote “on account of race” if the map resembles a sufficient num- ber of race-neutral alternatives. But this Court’s cases have consist- ently focused, for purposes of litigation, on the specific illustrative maps that a plaintiff adduces. Deviation from that map shows it is possible that the State’s map has a disparate effect on account of race. The remainder of the Gingles test helps determine whether that pos- sibility is reality by looking to polarized voting preferences and the frequency of racially discriminatory actions taken by the State. The Court declines to adopt Alabama’s interpretation of §2, which
Syllabus
would “revise and reformulate the
Gingles
threshold inquiry that has
been the baseline of [the Court’s] §2 jurisprudence” for decades.
Bart-
lett
v.
Strickland
,
(2) Alabama argues that absent a benchmark, the
Gingles
frame-
work ends up requiring the racial proportionality in districting that
§2(b) forbids. The Court’s decisions implementing §2 demonstrate,
however, that when properly applied, the
Gingles
framework itself im-
poses meaningful constraints on proportionality. See
Shaw
v.
Reno
The Court recognizes that reapportionment remains primarily the duty and responsibility of the States, not the federal courts. Section 2 thus never requires adoption of districts that violate traditional redis- tricting principles and instead limits judicial intervention to “those in- stances of intensive racial politics” where the “excessive role [of race] in the electoral process . . . den[ies] minority voters equal opportunity to participate.” S. Rep. No. 97–417, pp. 33–34. Pp. 18–22. (c) To apply its race-neutral benchmark in practice, Alabama would require plaintiffs to make at least three showings. First, Alabama would require §2 plaintiffs to show that the illustrative maps adduced for the first Gingles precondition are not based on race. Alabama would next graft onto §2 a requirement that plaintiffs demonstrate, at the totality of circumstances stage, that the State’s enacted plan con- tains fewer majority-minority districts than what an “average” race- neutral plan would contain. And finally, Alabama would have plain- tiffs prove that any deviation between the State’s plan and a race-neu- tral plan is explainable “only” by race. The Court declines to adopt any of these novel requirements.
Here, Alabama contends that because HB1 sufficiently “resembles” the “race-neutral” maps created by the State’s experts—all of which lack two majority-black districts—HB1 does not violate §2. Alabama’s reliance on the maps created by its experts Dr. Duchin and Dr. Imai is
Syllabus
misplaced because those maps do not accurately represent the district- ing process in Alabama. Regardless, the map-comparison test that Al- abama proposes is flawed in its fundamentals. Neither the text of §2 nor the fraught debate that produced it suggests that “equal access” to the fundamental right of voting turns on technically complicated com- puter simulations. Further, while Alabama has repeatedly empha- sized that HB1 cannot have violated §2 because none of plaintiffs’ two million odd maps contained more than one majority-minority district, that (albeit very big) number is close to irrelevant in practice, where experts estimate the possible number of Alabama districting maps numbers is at least in the trillion trillions.
Alabama would also require plaintiffs to demonstrate that any devi- ations between the State’s enacted plan and race-neutral alternatives “can be explained only by racial discrimination.” Brief for Alabama 44 (emphasis added). But the Court’s precedents and the legislative com- promise struck in the 1982 amendments clearly rejected treating dis- criminatory intent as a requirement for liability under §2. Pp. 22, 25– 30.
(d) The Court disagrees with Alabama’s assertions that the Court should stop applying §2 in cases like these because the text of §2 does not apply to single-member redistricting and because §2 is unconstitu- tional as the District Court applied it here. Alabama’s understanding of §2 would require abandoning four decades of the Court’s §2 prece- dents. The Court has unanimously held that §2 and the Gingles frame- work apply to claims challenging single-member districts. Growe v. Emison , 507 U. S. 25, 40. As Congress is undoubtedly aware of the Court’s construction of §2 to apply to districting challenges, statutory stare decisis counsels staying the course until and unless Congress acts. In any event, the statutory text supports the conclusion that §2 applies to single-member districts. Indeed, the contentious debates in Congress about proportionality would have made little sense if §2’s coverage was as limited as Alabama contends.
The Court similarly rejects Alabama’s argument that §2 as applied
to redistricting is unconstitutional under the Fifteenth Amendment.
The Court held over 40 years ago “that, even if §1 of the [Fifteenth]
Amendment prohibits only purposeful discrimination,”
City of Rome
v.
United States
,
The Court’s opinion does not diminish or disregard the concern that
Syllabus
§2 may impermissibly elevate race in the allocation of political power within the States. Instead, the Court simply holds that a faithful ap- plication of precedent and a fair reading of the record do not bear those concerns out here. Pp. 30–34.
Nos. 21–1086,
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES
_________________ Nos. 21–1086 and 21–1087 _________________ WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., APPELLANTS
21–1086 v.
EVAN MILLIGAN, ET AL .
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., PETITIONERS
21–1087
MARCUS CASTER, ET AL .
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 8, 2023]
C HIEF J USTICE R OBERTS delivered the opinion of the
Court, except as to Part III–B–1.*
In January 2022, a three-judge District Court sitting in
Alabama preliminarily enjoined the State from using the
districting plan it had recently adopted for the 2022 con-
gressional elections, finding that the plan likely violated
Section 2 of the Voting Rights Act, 52 U. S. C. §10301. This
Court stayed the District Court’s order pending further re-
view.
——————
*J USTICE K AVANAUGH joins all but Part III–B–1 of this opinion.
Opinion of the Court
I
A
Shortly after the Civil War, Congress passed and the
States ratified the Fifteenth Amendment, providing that
“[t]he right of citizens of the United States to vote shall not
be denied or abridged . . . on account of race, color, or previ-
ous condition of servitude.” U. S. Const., Amdt. 15, §1. In
the century that followed, however, the Amendment proved
little more than a parchment promise. Jim Crow laws like
literacy tests, poll taxes, and “good-morals” requirements
abounded,
South Carolina
v.
Katzenbach
, 383 U. S. 301,
312–313 (1966), “render[ing] the right to vote illusory for
blacks,”
Northwest Austin Municipal Util. Dist. No. One
v.
Holder
,
These cases concern Section 2 of that Act. In its original
form, Ҥ2 closely tracked the language of the [Fifteenth]
Amendment” and, as a result, had little independent force.
Brnovich
v.
Democratic National Committee
,
[1] As originally enacted, §2 provided that “[n]o voting qualification or
Opinion of the Court
time was
City of Mobile
v.
Bolden
, which involved a claim
by black voters that the City’s at-large election system ef-
fectively excluded them from participating in the election of
city commissioners.
The Court ruled against the plaintiffs. The Fifteenth Amendment—and thus §2—prohibits States from acting with a “racially discriminatory motivation” or an “invidious purpose” to discriminate. Id. , at 61–65 (plurality opinion). But it does not prohibit laws that are discriminatory only in effect. Ibid. The Mobile plaintiffs could “register and vote without hindrance”—“their freedom to vote ha[d] not been denied or abridged by anyone.” Id. , at 65. The fact that they happened to lose frequently was beside the point. Nothing the City had done “purposeful[ly] exclu[ded]” them “from participati[ng] in the election process.” at 64. Almost immediately after it was decided, Mobile “pro- duced an avalanche of criticism, both in the media and within the civil rights community.” T. Boyd & S. Markman, The 1982 Amendments to the Voting Rights Act: A Legisla- tive History, 40 Wash. & Lee L. Rev. 1347, 1355 (1983) (Boyd & Markman). The New York Times wrote that the decision represented “the biggest step backwards in civil rights to come from the Nixon Court.” N. Y. Times, Apr. 23, 1980, p. A22. And the Washington Post described Mobile as a “major defeat for blacks and other minorities fighting electoral schemes that exclude them from office.” Washing- ton Post, Apr. 23, 1980, p. A5. By focusing on discrimina- tory intent and ignoring disparate effect, critics argued, the Court had abrogated “the standard used by the courts to ——————
prerequisite to voting, or standard, practice, or procedure shall be im- posed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973 (1970 ed.).
Opinion of the Court
determine whether [racial] discrimination existed . . . : Whether such discrimination existed.” It’s Results That Count, Philadelphia Inquirer, Mar. 3, 1982, p. 8–A. But Mobile had its defenders, too. In their view, aban- doning the intent test in favor of an effects test would inev- itably require a focus on proportionality —wherever a mi- nority group won fewer seats in the legislature than its share of the population, the charge could be made that the State law had a discriminatory effect. That, after all, was the type of claim brought in Mobile . But mandating racial proportionality in elections was regarded by many as intol- erable. Doing so, wrote Senator Orrin Hatch in the Wash- ington Star, would be “strongly resented by the American public.” Washington Star, Sept. 30, 1980, p. A–9. The Wall Street Journal offered similar criticism. An effects test would generate “more, not less, racial and ethnic polariza- tion.” Wall Street Journal, Jan. 19, 1982, p. 28.
This sharp debate arrived at Congress’s doorstep in 1981. The question whether to broaden §2 or keep it as is, said Hatch—by then Chairman of the Senate Subcommittee be- fore which §2 would be debated—“involve[d] one of the most substantial constitutional issues ever to come before this body.” 2 Hearings before the Subcommittee on the Consti- tution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., pt. 1, p. 1 (1982).
Proceedings in Congress mirrored the disagreement that had developed around the country. In April 1981, Con- gressman Peter W. Rodino, Jr.—longtime chairman of the House Judiciary Committee—introduced a bill to amend the VRA, proposing that the words “to deny or abridge” in §2 be replaced with the phrase “ in a manner which results in a denial or abridgement.” H. R. 3112, 97th Cong., 1st Sess., 2 (as introduced) (emphasis added). This was the ef- fects test that Mobile ’s detractors sought.
But those wary of proportionality were not far behind. Senator Hatch argued that the effects test “was intelligible
Opinion of the Court
only to the extent that it approximated a standard of pro- portional representation by race.” Boyd & Markman 1392. The Attorney General had the same concern. The effects test “would be triggered whenever election results did not mirror the population mix of a particular community,” he wrote, producing “essentially a quota system for electoral politics.” N. Y. Times, Mar. 27, 1982, p. 23.
The impasse was not resolved until late April 1982, when
Senator Bob Dole proposed a compromise. Boyd & Mark-
man 1414. Section 2 would include the effects test that
many desired but also a robust disclaimer against propor-
tionality. Seeking to navigate any tension between the two,
the Dole Amendment borrowed language from a Fourteenth
Amendment case of ours,
White
v.
Regester
,
“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a man- ner which results in a denial or abridgement of the right of any citizen of the United States to vote on ac- count of race or color . . . as provided in subsection (b). “(b) A violation of subsection (a) is established if,
Opinion of the Court
based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be consid- ered: Provided , That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 52 U. S. C. §10301.
B
For the first 115 years following Reconstruction, the
State of Alabama elected no black Representatives to Con-
gress. See
Singleton
v.
Merrill
, 582 F. Supp. 3d 924, 947
(ND Ala. 2022) (
per curiam
). In 1992, several plaintiffs
sued the State, alleging that it had been impermissibly di-
luting the votes of black Alabamians in violation of §2. See
Wesch
v.
Hunt
,
Opinion of the Court
latter layered atop the former; District 6 is right in the State’s middle; and District 7 spans the central west. Id. , at 951.
In 2020, the decennial census revealed that Alabama’s
population had grown by 5.1%. See
To solve the problem, the State turned to experienced
mapmaker Randy Hinaman, who had created several dis-
tricting maps that Alabama used over the past 30 years.
Id.
, at 947–948. The starting point for Hinaman was the
then-existing 2011 congressional map, itself a product of
the 2001 map that Hinaman had also created. Civ. No. 21–
1530 (ND Ala.), ECF Doc. 70–2, pp. 40, 93–94; see also 582
F. Supp. 3d, at 950. Hinaman worked to adjust the 2011
map in accordance with the redistricting guidelines set by
the legislature’s Reapportionment Committee.
Id.
, at 948–
950; 1 App. 275. Those guidelines prioritized population
equality, contiguity, compactness, and avoiding dilution of
minority voting strength.
Opinion of the Court
Supp. App. 205–211. The Alabama Legislature enacted Hinaman’s map under the name HB1. 582 F. Supp. 3d, at 935, 950–951. Governor Ivey signed HB1 into law on No- vember 4, 2021. Id. , at 950.
C
Three groups of plaintiffs brought suit seeking to stop Al- abama’s Secretary of State from conducting congressional elections under HB1. The first group was led by Dr. Marcus Caster, a resident of Washington County, who challenged HB1 as invalid under §2. Id. , at 934–935, 980. The second group, led by Montgomery County resident Evan Milligan, brought claims under §2 and the Equal Protection Clause of the Fourteenth Amendment. Id. , at 939–940, 966. Fi- nally, the Singleton plaintiffs, who had previously sued to enjoin Alabama’s 2011 congressional map, amended their complaint to challenge HB1 as an impermissible racial ger- rymander under the Equal Protection Clause. Id. , at 938– 939.
A three-judge District Court was convened, comprised of
Circuit Judge Marcus and District Judges Manasco and
Moorer. The
Singleton
and
Milligan
actions were consoli-
dated before the three-judge Court for purposes of prelimi-
nary injunction proceedings, while
Caster
proceeded before
Judge Manasco on a parallel track.
Opinion of the Court
Id. , at 936. [2]
Four days later, on January 28, Alabama moved in this
Court for a stay of the District Court’s injunction. This
Court granted a stay and scheduled the cases for argument,
noting probable jurisdiction in
Milligan
and granting certi-
orari before judgment in
Caster
.
II
The District Court found that plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 vi- olates §2. We affirm that determination.
A
For the past forty years, we have evaluated claims brought under §2 using the three-part framework devel- oped in our decision Thornburg v. Gingles , 478 U. S. 30 (1986). Gingles concerned a challenge to North Carolina’s multimember districting scheme, which allegedly diluted the vote of its black citizens. Id. , at 34–36. The case pre- sented the first opportunity since the 1982 amendments to address how the new §2 would operate.
Gingles began by describing what §2 guards against. “The essence of a §2 claim,” the Court explained, “is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters.” Id. at 47. That occurs where an “electoral structure operates to mini- mize or cancel out” minority voters’ “ability to elect their preferred candidates.” , at 48. Such a risk is greatest ——————
[2] Judge Manasco, presiding in
Caster
, also preliminarily enjoined Ala-
bama from using HB1. Her opinion was based on the same evidentiary
record as was before the three-judge Court, and it adopted in full that
Court’s “recitation of the evidence, legal analysis, findings of fact and
conclusions of law.” 1 App. to Emergency Application for Stay in No.
2:21–cv–1536, p. 4; see also
Opinion of the Court
“where minority and majority voters consistently prefer dif- ferent candidates” and where minority voters are sub- merged in a majority voting population that “regularly de- feat[s]” their choices. Ibid.
To succeed in proving a §2 violation under
Gingles
, plain-
tiffs must satisfy three “preconditions.”
Id.
, at 50. First,
the “minority group must be sufficiently large and [geo-
graphically] compact to constitute a majority in a reasona-
bly configured district.”
Wisconsin Legislature
v.
Wisconsin
Elections Comm’n
, 595 U. S. ___, ___ (2022) (
per curiam
)
(slip op., at 3) (citing
Gingles
,
Each
Gingles
precondition serves a different purpose.
The first, focused on geographical compactness and numer-
osity, is “needed to establish that the minority has the po-
tential to elect a representative of its own choice in some
single-member district.”
Growe
v.
Emison
,
Opinion of the Court
would in fact be elected. See
ibid.
The third precondition,
focused on racially polarized voting, “establish[es] that the
challenged districting thwarts a distinctive minority vote”
at least plausibly on account of race.
Ibid.
And finally, the
totality of circumstances inquiry recognizes that applica-
tion of the
Gingles
factors is “peculiarly dependent upon the
facts of each case.”
Gingles
has governed our Voting Rights Act jurispru-
dence since it was decided 37 years ago. Congress has never
disturbed our understanding of §2 as
Gingles
construed it.
And we have applied
Gingles
in one §2 case after another,
to different kinds of electoral systems and to different juris-
dictions in States all over the country. See
Voinovich
v.
Quilter
,
B
As noted, the District Court concluded that plaintiffs’ §2 claim was likely to succeed under Gingles . 582 F. Supp. 3d, at 1026. Based on our review of the record, we agree. With respect to the first Gingles precondition, the District Court correctly found that black voters could constitute a majority in a second district that was “reasonably config- ured.” 1 App. to Emergency Application for Stay in No. 21–
Opinion of the Court
1086 etc., p. 253 (MSA). The plaintiffs adduced eleven il-
lustrative maps—that is, example districting maps that Al-
abama could enact—each of which contained two majority-
black districts that comported with traditional districting
criteria. With respect to compactness, for example, the Dis-
trict Court explained that the maps submitted by one of
plaintiffs’ experts, Dr. Moon Duchin, “perform[ed] generally
better on average than” did HB1.
The State nevertheless argues that plaintiffs’ maps were not reasonably configured because they failed to keep to- gether a traditional community of interest within Alabama. See, e.g. , id. , at 1012. A “community of interest,” according to Alabama’s districting guidelines, is an “area with recog- nized similarities of interests, including but not limited to ethnic, racial, economic, tribal, social, geographic, or histor- ical identities.” Ibid. Alabama argues that the Gulf Coast region in the southwest of the State is such a community of interest, and that plaintiffs’ maps erred by separating it into two different districts. Ibid.
We do not find the State’s argument persuasive. Only
Opinion of the Court
two witnesses testified that the Gulf Coast was a commu- nity of interest. Id. , at 1015. The testimony provided by one of those witnesses was “partial, selectively informed, and poorly supported.” Ibid. The other witness, mean- while, justified keeping the Gulf Coast together “simply” to preserve “political advantage[ ]”: “You start splitting coun- ties,” he testified, “and that county loses its influence. That’s why I don’t want Mobile County to be split.” Id. , at 990, 1015. The District Court understandably found this testimony insufficient to sustain Alabama’s “overdrawn ar- gument that there can be no legitimate reason to split” the Gulf Coast region. Id. , at 1015.
Even if the Gulf Coast did constitute a community of in-
terest, moreover, the District Court found that plaintiffs’
maps would still be reasonably configured because they
joined together a different community of interest called the
Black Belt.
Id.
, at 1012–1014. Named for its fertile soil,
the Black Belt contains a high proportion of black voters,
who “share a rural geography, concentrated poverty, une-
qual access to government services, . . . lack of adequate
healthcare,” and a lineal connection to “the many enslaved
people brought there to work in the antebellum period.” ,
at 1012–1013; see also
Opinion of the Court
e.g. , Supp. App. 164–173. But this Court has never held that a State’s adherence to a previously used districting plan can defeat a §2 claim. If that were the rule, a State could immunize from challenge a new racially discrimina- tory redistricting plan simply by claiming that it resembled an old racially discriminatory plan. That is not the law: §2 does not permit a State to provide some voters “less oppor- tunity . . . to participate in the political process” just be- cause the State has done it before. 52 U. S. C. §10301(b). As to the second and third Gingles preconditions, the Dis- trict Court determined that there was “no serious dispute that Black voters are politically cohesive, nor that the chal- lenged districts’ white majority votes sufficiently as a bloc to usually defeat Black voters’ preferred candidate.” 582 F. Supp. 3d, at 1016 (internal quotation marks omitted). The Court noted that, “on average, Black voters supported their candidates of choice with 92.3% of the vote” while “white voters supported Black-preferred candidates with 15.4% of the vote.” Id. , at 1017 (internal quotation marks omitted). Plaintiffs’ experts described the evidence of ra- cially polarized voting in Alabama as “intens[e],” “very strong,” and “very clear.” Ibid. Even Alabama’s expert con- ceded “that the candidates preferred by white voters in the areas that he looked at regularly defeat the candidates pre- ferred by Black voters.” Id. , at 1018.
Finally, the District Court concluded that plaintiffs had carried their burden at the totality of circumstances stage. The Court observed that elections in Alabama were racially polarized; that “Black Alabamians enjoy virtually zero suc- cess in statewide elections”; that political campaigns in Al- abama had been “characterized by overt or subtle racial ap- peals”; and that “Alabama’s extensive history of repugnant racial and voting-related discrimination is undeniable and well documented.” , at 1018–1024.
We see no reason to disturb the District Court’s careful factual findings, which are subject to clear error review and
Opinion of the Court
have gone unchallenged by Alabama in any event. See
Cooper
,
III
The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our §2 jurispru- dence anew.
The centerpiece of the State’s effort is what it calls the “race-neutral benchmark.” The theory behind it is this: Us- ing modern computer technology, mapmakers can now gen- erate millions of possible districting maps for a given State. The maps can be designed to comply with traditional dis- tricting criteria but to not consider race. The mapmaker can determine how many majority-minority districts exist in each map, and can then calculate the median or average number of majority-minority districts in the entire multi- million-map set. That number is called the race-neutral benchmark.
The State contends that this benchmark should serve as the point of comparison in §2 cases. The benchmark, the State says, was derived from maps that were “race-blind”— maps that cannot have “deni[ed] or abridge[d]” anyone’s right to vote “on account of race” because they never took race into “account” in the first place. 52 U. S. C. §10301(a). Courts in §2 cases should therefore compare the number of majority-minority districts in the State’s plan to the bench- mark. If those numbers are similar—if the State’s map “re- sembles” the benchmark in this way—then, Alabama ar- gues, the State’s map also cannot have “deni[ed] or abridge[d]” anyone’s right to vote “on account of race.” Ibid. Alabama contends that its approach should be adopted for two reasons. First, the State argues that a race-neutral benchmark best matches the text of the Voting Rights Act. *23 16
Opinion of the Court
Section 2 requires that the political processes be “equally open.” §10301(b). What that means, the State asserts, is that the State’s map cannot impose “obstacles or burdens that block or seriously hinder voting on account of race.” Brief for Alabama 43. These obstacles do not exist, in the State’s view, where its map resembles a map that never took race into “account.” Ibid. Second, Alabama argues that the Gingles framework ends up requiring racial pro- portionality in districting. According to the State, Gingles demands that where “another majority-black district could be drawn, it must be drawn.” Brief for Alabama 71 (empha- sis deleted). And that sort of proportionality, Alabama con- tinues, is inconsistent with the compromise that Congress struck, with the text of §2, and with the Constitution’s pro- hibition on racial discrimination in voting.
To apply the race-neutral benchmark in practice, Ala- bama would require §2 plaintiffs to make at least three showings. First, the illustrative plan that plaintiffs adduce for the first Gingles precondition cannot have been “based” on race. Brief for Alabama 56. Second, plaintiffs must show at the totality of circumstances stage that the State’s en- acted plan diverges from the average plan that would be drawn without taking race into account. And finally, plain- tiffs must ultimately prove that any deviation between the State’s plan and a race-neutral plan is explainable “only” by race—not, for example, by “the State’s naturally occurring geography and demography.” , at 46.
As we explain below, we find Alabama’s new approach to §2 compelling neither in theory nor in practice. We accord- ingly decline to recast our §2 case law as Alabama requests.
A
Section 2 prohibits States from imposing any “standard, practice, or procedure . . . in a manner which results in a denial or abridgement of the right of any citizen . . . to vote
Opinion of the Court
on account of race or color.” 52 U. S. C. §10301(a). What
that means, §2 goes on to explain, is that the political pro-
cesses in the State must be “equally open,” such that minor-
ity voters do not “have less opportunity than other members
of the electorate to participate in the political process and
to elect representatives of their choice.” §10301(b).
We have understood the language of §2 against the back-
ground of the hard-fought compromise that Congress
struck. To that end, we have reiterated that §2 turns on the
presence of discriminatory effects, not discriminatory in-
tent. See,
e.g.
,
Chisom
v.
Roemer
,
The State’s reading of §2, by contrast, runs headlong into our precedent. Alabama asserts that a State’s map does not “abridge[ ]” a person’s right to vote “on account of race” if the map resembles a sufficient number of race-neutral al- ternatives. See Brief for Alabama 54–56. But our cases have consistently focused, for purposes of litigation, on the *25 18
Opinion of the Court
specific illustrative maps that a plaintiff adduces. Devia- tion from that map shows it is possible that the State’s map has a disparate effect on account of race. The remainder of the Gingles test helps determine whether that possibility is reality by looking to polarized voting preferences and the frequency of racially discriminatory actions taken by the State, past and present.
A State’s liability under §2, moreover, must be deter-
mined “based on the totality of circumstances.” 52 U. S. C.
§10301(b). Yet Alabama suggests there is only one “circum-
stance[ ]” that matters—how the State’s map stacks up rel-
ative to the benchmark. That single-minded view of §2 can-
not be squared with the VRA’s demand that courts employ
a more refined approach. And we decline to adopt an inter-
pretation of §2 that would “revise and reformulate the
Gin-
gles
threshold inquiry that has been the baseline of our §2
jurisprudence” for nearly forty years.
Bartlett
, 556 U. S., at
16 (plurality opinion); see also
Wisconsin Legislature
, 595
U. S., at ___ (slip op., at 7) (faulting lower court for “improp-
erly reduc[ing]
Gingles
’ totality-of-circumstances analysis
to a single factor”);
De Grandy
,
[3] The principal dissent complains that “what the District Court did here is essentially no different from what many courts have done for dec- ades under this Court’s superintendence.” Post , at 47 (opinion of , J.). That is not such a bad definition of stare decisis .
Opinion of the Court
portionality, as our decisions have frequently demon- strated.
In
Shaw
v.
Reno
, for example, we considered the permis-
sibility of a second majority-minority district in North Car-
olina, which at the time had 12 seats in the U. S. House of
Representatives and a 20% black voting age population.
The same theme emerged in our 1995 decision
Miller
v.
Johnson
where we upheld a district court’s finding that one
of Georgia’s ten congressional districts was the product of
an impermissible racial gerrymander.
Opinion of the Court
was 27%, but there was only one majority-minority district.
Id.
, at 906. To comply with the VRA, Georgia thought it
necessary to create two more majority-minority districts—
achieving proportionality.
Id.
, at 920–921. But like North
Carolina in
Shaw
, Georgia could not create the districts
without flouting traditional criteria. One district “centered
around four discrete, widely spaced urban centers that
ha[d] absolutely nothing to do with each other, and
stretch[ed] the district hundreds of miles across rural coun-
ties and narrow swamp corridors.”
In
Bush
v.
Vera
, a plurality of the Court again explained
how traditional districting criteria limited any tendency of
the VRA to compel proportionality. The case concerned
Texas’s creation of three additional majority-minority dis-
tricts.
Opinion of the Court
State in the country, meanwhile, “has attained a propor- tional share” of districts in which Hispanic-preferred candi- dates are likely to prevail. Id. , at 3–4. That is because as residential segregation decreases—as it has “sharply” done since the 1970s—satisfying traditional districting criteria such as the compactness requirement “becomes more diffi- cult.” T. Crum, Reconstructing Racially Polarized Voting, 70 Duke L. J. 261, 279, and n. 105 (2020).
Indeed, as
amici
supporting the appellees emphasize, §2
litigation in recent years has rarely been successful for just
that reason. See Chen Brief 3–4. Since 2010, plaintiffs na-
tionwide have apparently succeeded in fewer than ten §2
suits.
Id.
, at 7. And “the
only
state legislative or congres-
sional districts that were redrawn because of successful
Section 2 challenges were a handful of state house districts
near Milwaukee and Houston.”
Id.
, at 7–8. By contrast,
“[n]umerous lower courts” have upheld districting maps
“where, due to minority populations’ geographic diffusion,
plaintiffs couldn’t design an additional majority-minority
district” or satisfy the compactness requirement. at 15–
16 (collecting cases). The same has been true of recent liti-
gation in this Court. See
Abbott
,
[4] Despite this all, the dissent argues that courts have apparently been “methodically carving the country into racially designated electoral dis- tricts” for decades. Post , at 48 (opinion of T HOMAS , J.). And that, the dissent inveighs, “should inspire us to repentance.” Ibid. But propor- tional representation of minority voters is absent from nearly every cor- ner of this country despite §2 being in effect for over 40 years. And in case after case, we have rejected districting plans that would bring States closer to proportionality when those plans violate traditional districting criteria. See supra , at 19–21. It seems it is the dissent that is “quixoti- cally joust[ing] with an imaginary adversary.” Post , at 47 (opinion of , J.). *29 22
Opinion of the Court Opinion of R OBERTS C. J.
Reapportionment, we have repeatedly observed, “is pri- marily the duty and responsibility of the State[s],” not the federal courts. , at ___ (slip op., at 21). Properly applied, the Gingles factors help ensure that remains the case. As respondents themselves emphasize, §2 “never require[s] adoption of districts that violate traditional redistricting principles.” Brief for Respondents in No. 21–1087, p. 3. Its exacting requirements, instead, limit judicial intervention to “those instances of intensive racial politics” where the “excessive role [of race] in the electoral process . . . den[ies] minority voters equal opportunity to participate.” Senate Report 33–34.
B
Although we are content to reject Alabama’s invitation to change existing law on the ground that the State misunder- stands §2 and our decisions implementing it, we also ad- dress how the race-neutral benchmark would operate in practice. Alabama’s approach fares poorly on that score, which further counsels against our adopting it.
The first change to existing law that Alabama would re- quire is prohibiting the illustrative maps that plaintiffs submit to satisfy the first Gingles precondition from being “based” on race. Brief for Alabama 56. Although Alabama is not entirely clear whether, under its view, plaintiffs’ il- lustrative plans must not take race into account at all or whether they must just not “prioritize” race, ibid. , we see no reason to impose such a new rule.
When it comes to considering race in the context of dis- tricting, we have made clear that there is a difference “be- tween being aware of racial considerations and being moti- vated by them.” Miller , 515 U. S., at 916; see also North Carolina v. Covington , 585 U. S. ___, ___ (2018) ( per cu- riam ) (slip op., at 8). The former is permissible; the latter *30 Opinion of the Court Opinion of R OBERTS C. J.
is usually not. That is because “[r]edistricting legislatures
will . . . almost always be aware of racial demographics,”
Miller
,
While the line between racial predominance and racial
consciousness can be difficult to discern, see
Miller
, 515
U. S., at 916, it was not breached here. The
Caster
plain-
tiffs relied on illustrative maps produced by expert Bill
Cooper. See
979. The court also explained that Alabama’s evidence of
racial predominance in Cooper’s maps was exceedingly
thin. Alabama’s expert, Thomas Bryan, “testified that he
never reviewed the exhibits to Mr. Cooper’s report” and
“that he never reviewed” one of the illustrative plans that
Cooper submitted.
Id.
, at 1006. Bryan further testified
that he could offer no “conclusions or opinions as to the ap-
parent basis of any individual line drawing decisions in
Cooper’s illustrative plans.”
[5] The dissent claims that Cooper “treated ‘the minority population in
and of itself ’ as the paramount community of interest in his plans.”
Post
,
at 14 (opinion of T HOMAS , J.) (quoting
Opinion of the Court
remanded for the lower court to conduct the predominance analysis itself, explaining that “the use of an express racial target” was just one factor among others that the court would have to consider as part of “[a] holistic analysis.” Id. , at 192. J USTICE T HOMAS dissented in relevant part, con- tending that because “the legislature sought to achieve a [black voting-age population] of at least 55%,” race neces- sarily predominated in its decisionmaking. Id. , at 198 (opinion concurring in part and dissenting in part). But the Court did not join in that view, and J USTICE T again dissents along the same lines today.
The second flaw in the dissent’s proposed approach is its inescapable consequence: Gingles must be overruled. Ac- cording to the dissent, racial predominance plagues every single illustrative map ever adduced at the first step of Gin- gles . For all those maps were created with an express tar- get in mind—they were created to show, as our cases re- quire, that an additional majority-minority district could be drawn. That is the whole point of the enterprise. The up- shot of the approach the dissent urges is not to change how Gingles is applied, but to reject its framework outright. The contention that mapmakers must be entirely “blind” to race has no footing in our §2 case law. The line that we have long drawn is between consciousness and predomi- nance. Plaintiffs adduced at least one illustrative map that comported with our precedents. They were required to do no more to satisfy the first step of Gingles .
The next condition Alabama would graft onto §2 is a re- quirement that plaintiffs demonstrate, at the totality of cir- cumstances stage, that the State’s enacted plan contains fewer majority-minority districts than the race-neutral benchmark. Brief for Alabama 43. If it does not, then §2 should drop out of the picture. at 44.
Alabama argues that is what should have happened here.
Opinion of the Court
It notes that one of plaintiffs’ experts, Dr. Duchin, used an
algorithm to create “2 million districting plans for Alabama
. . . without taking race into account in any way in the gen-
eration process.”
Alabama’s reliance on the maps created by Dr. Duchin and Dr. Imai is misplaced. For one, neither Duchin’s nor Imai’s maps accurately represented the districting process in Alabama. Dr. Duchin’s maps were based on old census data—from 2010 instead of 2020—and ignored certain tra- ditional districting criteria, such as keeping together com- munities of interest, political subdivisions, or municipali- ties. [6] And Dr. Imai’s 30,000 maps failed to incorporate Alabama’s own districting guidelines, including keeping to- gether communities of interest and preserving municipal boundaries. See Supp. App. 58–59. [7] ——————
[6] Dr. Duchin created her two million map sample as part of an aca-
demic article that she helped author, not for her work on this case, and
the article was neither entered into evidence below nor made part of the
record here. See
[7] The principal dissent decrees that Dr. Duchin’s and Dr. Imai’s maps are “surely probative,” forgiving the former’s use of stale census data as well as both mapmakers’ collective failure to incorporate many tradi- tional districting guidelines. Post , at 23–24, and n. 14 (opinion of
Opinion of the Court
But even if the maps created by Dr. Duchin and Dr. Imai
were adequate comparators, we could not adopt the map-
comparison test that Alabama proposes. The test is flawed
in its fundamentals. Districting involves myriad consider-
ations—compactness, contiguity, political subdivisions,
natural geographic boundaries, county lines, pairing of in-
cumbents, communities of interest, and population equal-
ity. See
Miller
,
Dr. Duchin’s testimony that—when using the correct census data—the
“randomized algorithms” she employed “found plans with two majority-
black districts in literally thousands of different ways.” MSA 316–317.
The principal dissent and the dissent by J USTICE A LITO also ignore
Duchin’s testimony that “it is certainly possible” to draw the illustrative
maps she produced in a race-blind manner.
Opinion of the Court
the maps they produce yield different benchmark results? How are courts to decide?
Alabama does not say; it offers no rule or standard for determining which of these choices are better than others. Nothing in §2 provides an answer either. In 1982, the com- puterized mapmaking software that Alabama contends plaintiffs must use to demonstrate an (unspecified) level of deviation did not even exist. See, e.g. , J. Chen & N. Steph- anopoulos, The Race-Blind Future of Voting Rights, 130 Yale L. J. 862, 881–882 (2021) (Chen & Stephanopoulos). And neither the text of §2 nor the fraught debate that pro- duced it suggests that “equal access” to the fundamental right of voting turns on computer simulations that are tech- nically complicated, expensive to produce, and available to “[o]nly a small cadre of university researchers [that] have the resources and expertise to run” them. Brief for United States as Amicus Curiae 28 (citing Chen & Stephanopoulos 882–884). [8]
One final point bears mentioning. Throughout these cases, Alabama has repeatedly emphasized that HB1 can- not have violated §2 because none of plaintiffs’ two million odd maps contained more than one majority-minority dis- trict. See, e.g. , Brief for Alabama 1, 23, 30, 31, 54–56, 70, 79. The point is that two million is a very big number and that sheer volume matters. But as elsewhere, Alabama misconceives the math project that it expects courts to over- see. A brief submitted by three computational redistricting experts explains that the number of possible districting maps in Alabama is at least in the “trillion trillions.” Re- districting Brief 6, n. 7. Another publication reports that ——————
[8] None of this is to suggest that algorithmic mapmaking is categorically irrelevant in voting rights cases. Instead, we note only that, in light of the difficulties discussed above, courts should exercise caution before treating results produced by algorithms as all but dispositive of a §2 claim. And in evaluating algorithmic evidence more generally in this context, courts should be attentive to the concerns we have discussed. *36 29
Opinion of the Court
the number of potential maps may be orders of magnitude higher: “the universe of all possible connected, population- balanced districting plans that satisfy the state’s require- ments,” it explains, “is likely in the range of googols.” Duchin & Spencer 768. Two million maps, in other words, is not many maps at all. And Alabama’s insistent reliance on that number, however powerful it may sound in the ab- stract, is thus close to irrelevant in practice. What would the next million maps show? The next billion? The first trillion of the trillion trillions? Answerless questions all. See, e.g. Redistricting Brief 2 (“[I]t is computationally in- tractable, and thus effectively impossible, to generate a complete enumeration of all potential districting plans. [Even] algorithms that attempt to create a manageable sample of that astronomically large universe do not consist- ently identify an average or median map.”); Duchin & Spen- cer 768 (“[A] comprehensive survey of [all districting plans within a State] is impossible.”).
Section 2 cannot require courts to judge a contest of com- puters when there is no reliable way to determine who wins, or even where the finish line is.
Alabama’s final contention with respect to the race-neu-
tral benchmark is that it requires plaintiffs to demonstrate
that any deviations between the State’s enacted plan and
race-neutral alternatives “can be explained
only
by racial
discrimination.” Brief for Alabama 44 (emphasis added).
We again find little merit in Alabama’s proposal. As we
have already explained, our precedents and the legislative
compromise struck in the 1982 amendments clearly re-
jected treating discriminatory intent as a requirement for
liability under §2. See,
e.g.
,
Chisom
,
Opinion of the Court
even
more
demanding than the intent test Congress jetti-
soned. Demonstrating discriminatory intent, we have long
held, “does not require a plaintiff to prove that the chal-
lenged action rested
solely
on racially discriminatory pur-
pose[ ].”
Arlington Heights
v.
Metropolitan Housing Devel-
opment Corp.
,
C
Alabama finally asserts that the Court should outright stop applying §2 in cases like these because the text of §2 does not apply to single-member redistricting and because §2 is unconstitutional as the District Court applied it here. We disagree on both counts.
Alabama first argues that §2 does not apply to single- member redistricting. Echoing J USTICE ’s concur- rence in Holder v. Hall , Alabama reads §2’s reference to “standard, practice, or procedure” to mean only the “meth- ods for conducting a part of the voting process that might . . . be used to interfere with a citizen’s ability to cast his vote.” 512 U. S., at 917–918 (opinion concurring in judg- ment). Examples of covered activities would include “regis- tration requirements, . . . the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process.” Id. , at 922. But not “a single-member districting system or the selection of one set of districting lines over another.” , at 923.
This understanding of §2 cannot be reconciled with our
precedent. As recounted above, we have applied §2 to
States’ districting maps in an unbroken line of decisions
stretching four decades. See
supra
, at 11; see also
Brnovich
,
Opinion of the Court
In doing so, we have unanimously held that §2 and
Gingles
“[c]ertainly . . . apply” to claims challenging single-member
districts.
Growe
,
The statutory text in any event supports the conclusion that §2 applies to single-member districts. Alabama’s own proffered definition of a “procedure is the manner or method ——————
[9] The dissent suggests that
Growe
does not support the proposition that
§2 applies to single-member redistricting.
Post
, at 4–5 (opinion of
, J.). The Court has understood
Growe
much differently. See,
e.g.
,
Abrams
v.
Johnson
,
[10] J USTICE A LITO argues that “[t]he
Gingles
framework should be [re]in-
terpreted” in light of changing methods in statutory interpretation.
Post
,
at 10 (dissenting opinion). But as we have explained,
Gingles
effectuates
the delicate legislative bargain that §2 embodies. And statutory
stare
decisis
counsels strongly in favor of not “undo[ing] . . . the compromise
that was reached between the House and Senate when §2 was amended
in 1982.”
Brnovich
,
Opinion of the Court
of proceeding in a process or course of action.” Brief for Al- abama 51 (internal quotation marks omitted). But the manner of proceeding in the act of voting entails determin- ing in which districts voters will vote. The fact that the term “procedure” is preceded by the phrase “qualification or prerequisite to voting,” 52 U. S. C. §10301(a), does not change its meaning. It is hard to imagine many more fun- damental “prerequisites” to voting than determining where to cast your ballot or who you are eligible to vote for. Per- haps for that reason, even Alabama does not bear the cour- age of its conviction on this point. It refuses to argue that §2 is inapplicable to multimember districting, though its textual arguments apply with equal force in that context. The dissent, by contrast, goes where even Alabama does not dare, arguing that §2 is wholly inapplicable to district- ing because it “focuses on ballot access and counting” only. Post , at 2 (opinion of T HOMAS , J.). But the statutory text upon which the dissent relies supports the exact opposite conclusion. The relevant section provides that “[t]he terms ‘vote’ or ‘voting’ shall include all action necessary to make a vote effective .” Ibid. (quoting 52 U. S. C. §10310(c)(1); em- phasis added). Those actions “includ[e], but [are] not lim- ited to, . . . action[s] required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast.” §10310(c)(1). It would be anomalous to read the broad lan- guage of the statute—“all action necessary,” “including but not limited to”—to have the crabbed reach that J USTICE T HOMAS posits. And we have already discussed why deter- mining where to cast a ballot constitutes a “prerequisite” to voting, as the statute requires.
The dissent also contends that “applying §2 to districting rests on systematic neglect of . . . the ballot-access focus of the 1960s’ voting-rights struggles.” Post , at 3 (opinion of , J.). But history did not stop in 1960. As we have explained, Congress adopted the amended §2 in response to
Opinion of the Court
the 1980 decision City of Mobile , a case about districting . And—as the dissent itself acknowledges—“Congress drew §2(b)’s current operative language” from the 1973 decision White v. Regester , post , at 4, n. 3 (opinion of T , J.), a case that was also about districting (in fact, a case that in- validated two multimember districts in Texas and ordered them redrawn into single-member districts, 412 U. S., at 765). This was not lost on anyone when §2 was amended. Indeed, it was the precise reason that the contentious de- bates over proportionality raged—debates that would have made little sense if §2 covered only poll taxes and the like, as the dissent contends.
We also reject Alabama’s argument that §2 as applied to redistricting is unconstitutional under the Fifteenth Amendment. According to Alabama, that Amendment per- mits Congress to legislate against only purposeful discrim- ination by States. See Brief for Alabama 73. But we held over 40 years ago “that, even if §1 of the [Fifteenth] Amend- ment prohibits only purposeful discrimination, the prior de- cisions of this Court foreclose any argument that Congress may not, pursuant to §2 [of the Fifteenth Amendment] out- law voting practices that are discriminatory in effect.” City of Rome v. United States , 446 U. S. 156, 173 (1980). The VRA’s “ban on electoral changes that are discriminatory in effect,” we emphasized, “is an appropriate method of pro- moting the purposes of the Fifteenth Amendment.” , at 177. As City of Rome recognized, we had reached the very same conclusion in South Carolina v. Katzenbach , a deci- sion issued right after the VRA was first enacted. 383 U. S., at 308–309, 329–337; see also Brnovich , 594 U. S., at ___ (slip op., at 3).
Alabama further argues that, even if the Fifteenth Amendment authorizes the effects test of §2, that Amend- ment does not authorize race-based redistricting as a rem- edy for §2 violations. But for the last four decades, this Court and the lower federal courts have repeatedly applied
Opinion of the Court
the effects test of §2 as interpreted in
Gingles
and, under
certain circumstances, have authorized race-based redis-
tricting as a remedy for state districting maps that violate
§2. See,
e.g.
,
supra,
at 11; cf.
Mississippi Republican Exec-
utive Committee
v.
Brooks
,
* * *
The judgments of the District Court for the Northern Dis- trict of Alabama in the Caster case, and of the three-judge District Court in the Milligan case, are affirmed.
It is so ordered. *42 K AVANAUGH , J., concurring K AVANAUGH J., concurring in part SUPREME COURT OF THE UNITED STATES
_________________ Nos. 21–1086 and 21–1087 _________________ WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., APPELLANTS
21–1086 v.
EVAN MILLIGAN, ET AL .
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., PETITIONERS
21–1087
MARCUS CASTER, ET AL .
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 8, 2023]
J USTICE K AVANAUGH , concurring in all but Part III–B–1. I agree with the Court that Alabama’s redistricting plan violates §2 of the Voting Rights Act as interpreted in Thornburg v. Gingles , 478 U. S. 30 (1986). I write separately to emphasize four points.
First
, the upshot of Alabama’s argument is that the Court
should overrule
Gingles
. But the
stare decisis
standard for
this Court to overrule a statutory precedent, as distinct
from a constitutional precedent, is comparatively strict.
Unlike with constitutional precedents, Congress and the
President may enact new legislation to alter statutory
precedents such as
Gingles
. In the past 37 years, however,
Congress and the President have not disturbed
Gingles
,
even as they have made other changes to the Voting Rights
Act. Although statutory
stare decisis
is not absolute, “the
*43
K AVANAUGH , J., concurring
K AVANAUGH , J., concurring in part
Court has ordinarily left the updating or correction of
erroneous statutory precedents to the legislative process.”
Ramos
v.
Louisiana
,
Second
, Alabama contends that
Gingles
inevitably
requires a proportional number of majority-minority
districts, which in turn contravenes the proportionality
disclaimer in §2(b) of the Voting Rights Act. 52 U. S. C.
§10301(b). But Alabama’s premise is wrong. As the Court’s
precedents make clear,
Gingles
does not mandate a
proportional number of majority-minority districts.
Gingles
requires the creation of a majority-minority district
only when, among other things, (i) a State’s redistricting
map cracks or packs a large and “geographically compact”
minority population and (ii) a plaintiff ’s proposed
alternative map and proposed majority-minority district
are “reasonably configured”—namely, by respecting
compactness principles and other traditional districting
criteria such as county, city, and town lines. See,
e.g.
,
Cooper
v.
Harris
,
——————
[1] Unlike ordinary statutory precedents, the “Court’s precedents
applying common-law statutes and pronouncing the Court’s own
interpretive methods and principles typically do not fall within that
category of stringent statutory
stare decisis
.”
Ramos
*44
K AVANAUGH , J., concurring
K AVANAUGH , J., concurring in part
If
Gingles
demanded a proportional number of majority-
minority districts, States would be forced to group together
geographically dispersed minority voters into unusually
shaped districts, without concern for traditional districting
criteria such as county, city, and town lines. But
Gingles
and this Court’s later decisions have flatly rejected that
approach. See,
e.g.
,
Abbott
v.
Perez
,
But as this Court has long recognized—and as all Members of this Court today agree—the text of §2 establishes an effects test, not an intent test. See ante , at 17; post , at 7 (T J., dissenting); post , at 16 (A LITO , J., dissenting). And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing—whether intentional or not—of large ——————
[2] To ensure that Gingles does not improperly morph into a proportionality mandate, courts must rigorously apply the “geographically compact” and “reasonably configured” requirements. See ante , at 22 (§2 requirements under Gingles are “exacting”). In this case, for example, it is important that at least some of the plaintiffs’ proposed alternative maps respect county lines at least as well as Alabama’s redistricting plan. See ante , at 12. *45 v.
K AVANAUGH , J., concurring
K AVANAUGH J., concurring in part
and geographically compact minority populations. See
Abbott
, 585 U. S., at ___ (slip op., at 4);
Johnson
v.
De
Grandy
,
Fourth , Alabama asserts that §2, as construed by Gingles to require race-based redistricting in certain circumstances, exceeds Congress’s remedial or preventive authority under the Fourteenth and Fifteenth Amendments. As the Court explains, the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents. See ante , at 33–34; see also City of Rome v. United States , 446 U. S. 156, 177–178 (1980). J USTICE notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post , at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.
For those reasons, I vote to affirm, and I concur in all but Part III–B–1 of the Court’s opinion.
T HOMAS SUPREME COURT OF THE UNITED STATES
_________________ Nos. 21–1086 and 21–1087 _________________ WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., APPELLANTS
21–1086 v.
EVAN MILLIGAN, ET AL .
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., PETITIONERS
21–1087
MARCUS CASTER, ET AL .
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 8, 2023]
J USTICE HOMAS , with whom J USTICE G ORSUCH joins, with whom J USTICE B ARRETT joins as to Parts II and III, and with whom J USTICE A LITO joins as to Parts II–A and II–B, dissenting.
These cases “are yet another installment in the ‘disas-
trous misadventure’ of this Court’s voting rights jurispru-
dence.”
Alabama Legislative Black Caucus
v.
Alabama
, 575
U. S. 254, 294 (2015) (T HOMAS , J., dissenting) (quoting
Holder
v.
Hall
,
I
At the outset, I would resolve these cases in a way that would not require the Federal Judiciary to decide the cor- rect racial apportionment of Alabama’s congressional seats. Under the statutory text, a §2 challenge must target a “vot- ing qualification or prerequisite to voting or standard, prac- tice, or procedure.” 52 U. S. C. §10301(a). I have long been convinced that those words reach only “enactments that regulate citizens’ access to the ballot or the processes for counting a ballot”; they “do not include a State’s . . . choice of one districting scheme over another.” Holder 512 U. S., at 945 (opinion of T HOMAS , J.). “Thus, §2 cannot provide a basis for invalidating any district.” Abbott v. Perez , 585 U. S. ___, ___ (2018) (T , J., concurring) (slip op., at 1).
While I will not repeat all the arguments that led me to this conclusion nearly three decades ago, see Holder , 512 U. S., at 914–930 (opinion concurring in judgment), the Court’s belated appeal to the statutory text is not persua- sive. See ante , at 31–32. Whatever words like “practice” and “procedure” are capable of meaning in a vacuum, the prohibitions of §2 apply to practices and procedures that af- fect “voting” and “the right . . . to vote.” §10301(a). “Vote” and “voting” are defined terms under the Act, and the Act’s definition plainly focuses on ballot access and counting:
“The terms ‘vote’ or ‘voting’ shall include all action necessary to make a vote effective in any primary, spe- cial, or general election, including, but not limited to, *48 registration, listing pursuant to this chapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and in- cluded in the appropriate totals of votes cast with re- spect to candidates for public or party office and propo- sitions for which votes are received in an election.” §10310(c)(1).
In enacting the original Voting Rights Act in 1965, Con-
gress copied this definition almost verbatim from Title VI
of the Civil Rights Act of 1960—a law designed to protect
access to the ballot in jurisdictions with patterns or prac-
tices of denying such access based on race, and which can-
not be construed to authorize so-called vote-dilution claims.
See 74 Stat. 91–92 (codified in relevant part at 52 U. S. C.
§10101(e)). Title I of the Civil Rights Act of 1964, which
cross-referenced the 1960 Act’s definition of “vote,” likewise
protects ballot access alone and cannot be read to address
vote dilution. See 78 Stat. 241 (codified in relevant part at
52 U. S. C. §10101(a)). Tellingly, the 1964 Act also used the
words “standard, practice, or procedure” to refer specifically
to voting qualifications for individuals and the actions of
state and local officials in administering such require-
ments.
[1]
Our entire enterprise of applying §2 to districting
rests on systematic neglect of these statutory antecedents
and, more broadly, of the ballot-access focus of the 1960s’
voting-rights struggles. See,
e.g.
,
Brnovich
v.
Democratic
National Committee
,
[1] “No person acting under color of law shall . . . in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individ- uals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.” 52 U. S. C. §10101(a)(2)(A).
Voting Rights Act, States and localities deprived black
Americans of the ballot: “poll taxes, literacy tests, property
qualifications, white primaries, and grandfather clauses”
(alterations and internal quotation marks omitted)).
[2]
Moreover, the majority drastically overstates the
stare
decisis
support for applying §2 to single-member districting
plans like the one at issue here.
[3]
As the majority implicitly
acknowledges, this Court has only applied §2 to invalidate
one single-member district in one case. See
League of
United Latin American Citizens
v.
Perry
,
[2] The majority suggests that districting lines are a “ ‘prerequisite to voting’ ” because they “determin[e] where” voters “cast [their] ballot[s].” Ante , at 32. But, of course, a voter’s polling place is a separate matter from the district to which he is assigned, and communities are often moved between districts without changing where their residents go to vote. The majority’s other example (“who [voters] are eligible to vote for,” ibid. ) is so far a stretch from the Act’s focus on voting qualifications and voter action that it speaks for itself.
[3] The majority chides Alabama for declining to specifically argue that
§2 is inapplicable to multimember and at-large districting plans. But
these cases are about a single-member districting plan, and it is hardly
uncommon for parties to limit their arguments to the question presented.
Further, while I do not myself believe that the text of §2 applies to mul-
timember or at-large plans, the idea that such plans might be especially
problematic from a vote-dilution standpoint is hardly foreign to the
Court’s precedents, see
Johnson
v.
De Grandy
, 512 U. S. 997, 1012
(1994);
Growe
v.
Emison
,
T HOMAS multimember and at-large plans must limit challenges to single-member districts with at least the same force, as “[i]t would be peculiar [if] a vote-dilution challenge to the (more dangerous) multimember district require[d] a higher threshold showing than a vote-fragmentation challenge to a single-member district.” , at 40. Growe did not con- sider (or, thus, reject) an argument that §2 does not apply to single-member districts.
In any event, stare decisis should be no barrier to recon- sidering a line of cases that “was based on a flawed method of statutory construction from its inception,” has proved in- capable of principled application after nearly four decades of experience, and puts federal courts in the business of “methodically carving the country into racially designated electoral districts.” Holder , 512 U. S., at 945 (opinion of HOMAS , J.). This Court has “never applied stare decisis mechanically to prohibit overruling our earlier decisions de- termining the meaning of statutes,” and it should not do so here. Monell v. New York City Dept. of Social Servs. , 436 U. S. 658, 695 (1978). Stare decisis did not save “separate but equal,” despite its repeated reaffirmation in this Court and the pervasive reliance States had placed upon it for dec- ades. See, e.g. , Brief for Appellees in Brown v. Board of Ed- ucation , O. T. 1953, No. 1, pp. 18–30. It should not rescue modern-day forms of de jure racial balkanization—which, as these cases show, is exactly where our §2 vote-dilution jurisprudence has led. [4]
——————
[4] J USTICE K AVANAUGH ’s partial concurrence emphasizes the supposedly
enhanced
stare decisis
force of statutory-interpretation precedents. See
ante
, at 1–2. This emphasis is puzzling in several respects. As an initial
matter, I can perceive no conceptual “basis for applying a heightened
version of
stare decisis
to statutory-interpretation decisions”; rather, “our
judicial duty is to apply the law to the facts of the case, regardless of how
easy it is for the law to change.”
Gamble
v.
United States
,
II
Even if §2 applies here, however, Alabama should pre-
vail. The District Court found that Alabama’s congres-
sional districting map “dilutes” black residents’ votes be-
cause, while it is
possible
to draw two majority-black
districts, Alabama’s map only has one.
[5]
But the critical
question in all vote-dilution cases is: “Diluted relative to
what benchmark?”
Gonzalez
v.
Aurora
,
the founding or for more than a century thereafter. See T. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 708–732 (1999). But, even put- ting those problems aside, any appeal to heightened statutory stare de- cisis is particularly misplaced in this context. As the remainder of this dissent explains in depth, the Court’s §2 precedents differ from “ordinary statutory precedents” in two vital ways. Ante , at 2, n. 1 (opinion of K AVANAUGH , J.). The first is their profound tension with the Constitu- tion’s hostility to racial classifications, a tension that J USTICE K AVANAUGH acknowledges and that makes every §2 question the reverse side of a corresponding constitutional question. See ante , at 4. The sec- ond is that, to whatever extent §2 applies to districting, it can only “be understood as a delegation of authority to the courts to develop a common law of racially fair elections.” C. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 383 (2012). It would be absurd to maintain that this Court’s “notoriously unclear and confusing” §2 case law follows, in any straightforward way, from the statutory text’s high-flown language about the equal openness of political processes. Merrill v. Milligan , 595 U. S. ___, ___ (2022) (K AVANAUGH , J., concurring in grant of applications for stays) (slip op., at 6).
[5] Like the majority, I refer to both courts below as “the District Court” without distinction.
the decidedly nonneutral benchmark of proportional alloca- tion of political power based on race.
A
As we have long recognized, “the very concept of vote di- lution implies—and, indeed, necessitates—the existence of an ‘undiluted’ practice against which the fact of dilution may be measured.” Reno v. Bossier Parish School Bd. , 520 U. S. 471, 480 (1997). In a challenge to a districting plan, a court must be able to compare a State’s enacted plan with “a hypothetical, undiluted plan,” ibid. , ascertained by an “objective and workable standard.” Holder , 512 U. S., at 881 (plurality opinion); see also id. , at 887 (opinion of O’Connor, J.) (noting the “general agreement” on this point).
To be sure, it is no easy task to identify an objective, “un-
diluted” benchmark against which to judge a districting
plan. As we recently held in the analogous context of par-
tisan gerrymandering, “federal courts are not equipped to
apportion political power as a matter of fairness.”
Rucho
v.
Common Cause
,
“if, based on the totality of circumstances, . . . the polit- ical processes leading to nomination or election in the State . . . are not equally open to participation by mem- bers of [a protected class] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect repre- sentatives of their choice. The extent to which mem- bers of a protected class have been elected to office in the State . . . is one circumstance which may be consid- ered: Provided , That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” §10301(b).
As we held two Terms ago in Brnovich the “equal open- ness” requirement is “the core” and “touchstone” of §2(b), *54 with “equal opportunity” serving an ancillary function. [6] 594 U. S., at ___ (slip op., at 15). Relying significantly on §2(b)’s disclaimer of a right to proportional representa- tion, we also held that §2 does not enact a “freewheeling disparate-impact regime.” Id. , at ___, and n. 14 (slip op., at 22, and n. 14). Brnovich further stressed the value of “benchmarks with which . . . challenged [electoral] rule[s] can be compared,” id. , at ___ (slip op., at 17), and that “a meaningful comparison is essential” in judging the signifi- cance of any challenged scheme’s racially disparate impact. , at ___ (slip op., at 18). To the extent §2 applies to dis- tricting plans, then, it requires that they be “equally open to participation” by voters of all races, but it is not a pure disparate-impact statute and does not guarantee propor- tional representation.
In its main argument here, Alabama simply carries these principles to their logical conclusion: Any vote-dilution benchmark must be race neutral. See Brief for Appellants 32–46. Whatever “equal openness” means in the context of single-member districting, no “meaningful comparison” is possible using a benchmark that builds in a presumption in favor of minority-controlled districts. Indeed, any bench- mark other than a race-neutral one would render the vote- dilution inquiry fundamentally circular, allowing courts to conclude that a districting plan “dilutes” a minority’s voting strength “on account of race” merely because it does not measure up to an ideal already defined in racial terms. Such a question-begging standard would not answer our precedents’ demand for an “ objective ,” “reasonable bench- mark.” Holder , 512 U. S., at 881 (plurality opinion) (em- phasis added). Nor could any nonneutral benchmark be reconciled with Brnovich ’s rejection of a disparate-impact ——————
[6] While
Brnovich
involved a time-place-and-manner voting rule, not a
vote-dilution challenge to a districting plan, its analysis logically must
apply to vote-dilution cases if the text of §2 covers such claims at all.
*55
HOMAS regime or the text’s disclaimer of a right to proportional rep-
resentation.
There is yet another compelling reason to insist on a race-
neutral benchmark. “The Constitution abhors classifica-
tions based on race.”
Grutter
v.
Bollinger
, 539 U. S. 306,
353 (2003) (T , J., concurring in part and dissenting
in part). Redistricting is no exception. “Just as the State
may not, absent extraordinary justification, segregate citi-
zens on the basis of race in its public parks, buses, golf
courses, beaches, and schools,” the State also “may not sep-
arate its citizens into different voting districts on the basis
of race.”
Miller
v.
Johnson
,
Because “[r]acial gerrymandering, even for remedial pur-
poses, may balkanize us into competing racial factions” and
undermine “the goal of a political system in which race no
longer matters,”
Shaw I
,
B
The plaintiffs in these cases seek a “proportional alloca- tion of political power according to race.” Holder , 512 U. S., at 936 (opinion of T HOMAS , J.). According to the 2020 cen- sus, black Alabamians account for 27.16% of the State’s to- tal population and 25.9% of its voting-age population, both figures slightly less than two-sevenths. Of Alabama’s seven existing congressional districts, one, District 7, is majority- black. [7] These cases were brought to compel “the creation of ——————
[7] District 7 owes its majority-black status to a 1992 court order. See
Wesch
v.
Hunt
, 785 F. Supp. 1491, 1493–1494, 1496–1497, 1501–1502
(SD Ala.), aff ’d
sub nom. Camp
v.
Wesch
,
Remarkably, the majority fails to acknowledge that two minority-controlled districts would mean proportionality, or even that black Alabamians are about two-sevenths of the State. Yet that context is critical to the issues before us, not least because it explains the extent of the racial sort- ing the plaintiffs’ goal would require. “[A]s a matter of mathematics,” single-member districting “tends to deal out representation far short of proportionality to virtually all minorities, from environmentalists in Alaska to Republi- cans in Massachusetts.” M. Duchin & D. Spencer, Models, Race, and the Law, 130 Yale L. J. Forum 744, 752 (2021) (Duchin & Spencer). As such, creating two majority-black districts would require Alabama to aggressively “sort voters on the basis of race.” Wisconsin Legislature , 595 U. S., at ___ (slip op., at 2).
The plaintiffs’ 11 illustrative maps make that clear. All 11 maps refashion existing District 2 into a majority-black district while preserving the current black majority in Dis- trict 7. They all follow the same approach: Starting with majority-black areas of populous Montgomery County, they ——————
heart of urban Birmingham. See Supp. App. 207–208. Of the Jefferson
County residents captured by the “finger,” 75.48% were black.
Wesch
,
expand District 2 east and west to encompass predomi- nantly majority-black areas throughout the rural “Black Belt.” In the process, the plans are careful to leave enough of the Black Belt for District 7 to maintain its black major- ity. Then—and critically—the plans have District 2 extend a southwestern tendril into Mobile County to capture a dense, high-population majority-black cluster in urban Mo- bile. [8] See Supp. App. 184, 186, 188, 190, 193, 195, 197, 199, 201, 203; see also id. , at 149.
Those black Mobilians currently reside in the urban heart of District 1. For 50 years, District 1 has occupied the southwestern pocket of Alabama, consisting of the State’s two populous Gulf Coast counties (Mobile and Baldwin) as well as some less populous areas to the immediate north and east. See id. , at 205–211. It is indisputable that the Gulf Coast region is the sort of community of interest that the Alabama Legislature might reasonably think a congres- sional district should be built around. It contains Ala- bama’s only coastline, its fourth largest city, and the Port of Mobile. Its physical geography runs north along the Alabama and Mobile Rivers, whose paths District 1 follows. Its economy is tied to the Gulf—to shipping, shipbuilding, tourism, and commercial fishing. See Brief for Coastal Alabama Partnership as Amicus Curiae 13–15.
But, for the plaintiffs to secure their majority-black Dis- trict 2, this longstanding, compact, and eminently sensible district must be radically transformed. In the Gulf Coast region, the newly drawn District 1 would retain only the majority-white areas that District 2 did not absorb on its path to Mobile’s large majority-black population. To make ——————
[8] I have included an Appendix, infra , illustrating the plaintiffs’ 11 pro- posed maps. The first 10 images display the “black-only” voting-age pop- ulation of census-designated voting districts in relation to the maps’ hy- pothetical district lines. The record does not contain a similar illustration for the 11th map, but a simple visual comparison with the other maps suffices.
up the lost population, District 1 would have to extend east- ward through largely majority-white rural counties along the length of Alabama’s border with the Florida panhandle. The plaintiffs do not assert that white residents on the Gulf Coast have anything special in common with white resi- dents in those communities, and the District Court made no such finding. The plaintiffs’ maps would thus reduce Dis- trict 1 to the leftover white communities of the southern fringe of the State, its shape and constituents defined al- most entirely by the need to make District 2 majority-black while also retaining a majority-black District 7.
The plaintiffs’ mapmaking experts left little doubt that
their plans prioritized race over neutral districting criteria.
Dr. Moon Duchin, who devised four of the plans, testified
that achieving “two majority-black districts” was a “nonne-
gotiable principl[e]” in her eyes, a status shared only by our
precedents’ “population balance” requirement.
Statistical evidence also underscored the illustrative
maps’ extreme racial sorting. Another of the plaintiffs’ ex-
perts, Dr. Kosuke Imai, computer generated 10,000 district-
ing plans using a race-blind algorithm programmed to
observe several objective districting criteria. Supp. App.
58–59. None of those plans contained even one majority-
black district. , at 61. Dr. Imai generated another 20,000
plans using the same algorithm, but with the additional con-
straint that they must contain at least one majority-
black district; none of those plans contained a second
majority-black district, or even a second district with a
*60
black voting-age population above 40%.
Id.
, at 54, 67, 71–
72. In a similar vein, Dr. Duchin testified about an aca-
demic study in which she had randomly “generated 2 mil-
lion districting plans for Alabama” using a race-neutral
algorithm that gave priority to compactness and contiguity.
2 App. 710; see Duchin & Spencer 765. She “found some
[plans] with one majority-black district, but never found a
second . . . majority-black district in 2 million attempts.” 2
App. 710. “[T]hat it is hard to draw two majority-black dis-
tricts by accident,” Dr. Duchin explained, “show[ed] the im-
portance of doing so on purpose.” , at 714.
[9]
The plurality of Justices who join Part III–B–I of T HE
C HIEF J USTICE ’s opinion appear to agree that the plain-
tiffs could not prove the first precondition of their
statewide vote-dilution claim—that black Alabamians
could constitute a majority in two “reasonably configured”
districts,
Wisconsin Legislature
,
[9] The majority notes that this study used demographic data from the 2010 census, not the 2020 one. That is irrelevant, since the black popu- lation share in Alabama changed little (from 26.8% to 27.16%) between the two censuses. To think that this minor increase might have changed Dr. Duchin’s results would be to entirely miss her point: that propor- tional representation for any minority, unless achieved “by design,” is a statistical anomaly in almost all single-member-districting systems. Duchin & Spencer 764. *61 ,
residents in one metropolitan area (Montgomery) with
parts of the rural Black Belt and black residents in another
metropolitan area (Mobile); (2) leaving enough of the Black
Belt’s majority-black rural areas for District 7 to maintain
its majority-black status; and (3) reducing District 1 to the
white remainder of the southern third of the State.
If the State did this, we would call it a racial gerryman-
der, and rightly so. We would have no difficulty recognizing
race as “the predominant factor motivating [the placement
of] significant number[s] of voters within or without” Dis-
tricts 1, 2, and 7.
Miller
,
The State could not justify such a plan simply by arguing
that it was less bizarre to the naked eye than other, more
elaborate racial gerrymanders we have encountered. See
ante
, at 19–20 (discussing cases). As we held in
Miller
vis-
ual “bizarreness” is not “a necessary element of the consti-
tutional wrong,” only “persuasive circumstantial evidence.”
——————
[10] Of course, bizarreness is in the eye of the beholder, and, while labels like “ ‘tentacles’ ” or “ ‘appendages’ ” have no ultimate legal significance, it is far from clear that they do not apply here. See ante , at 12. The tendrils with which the various versions of illustrative District 2 would *62 , Nor could such a plan be explained by supposed respect for the Black Belt. For present purposes, I accept the Dis- trict Court’s finding that the Black Belt is a significant com- munity of interest. But the entire black population of the Black Belt—some 300,000 black residents, see Supp. App. 33—is too small to provide a majority in a single congres- sional district, let alone two. [11] The black residents needed to populate majority-black versions of Districts 2 and 7 are overwhelmingly concentrated in the urban counties of Jef- ferson ( i.e. the Birmingham metropolitan area, with about 290,000 black residents), Mobile (about 152,000 black resi- dents), and Montgomery (about 134,000 black residents). , at 83. Of the three, only Montgomery County is in the ——————
capture black Mobilians are visually striking and are easily recognized
as a racial grab against the backdrop of the State’s demography. The
District 7 “finger,” which encircles the black population of the Birming-
ham metropolitan area in order to separate them from their white neigh-
bors and link them with black rural areas in the west of the State, also
stands out to the naked eye. The District Court disregarded the “finger”
because it has been present in every districting plan since 1992, includ-
ing the State’s latest enacted plan.
Singleton
v.
Merrill
, 582 F. Supp. 3d
924, 1011 (ND Ala. 2022) (
per curiam
). But that reasoning would allow
plaintiffs to bootstrap one racial gerrymander as a reason for permitting
a second. Because the question is not before us, I express no opinion on
whether existing District 7 is constitutional as enacted by the State. It
is indisputable, however, that race predominated in the original creation
of the district, see n. 7,
supra
, and it is plain that the primary race-neu-
tral justification for the district today must be the State’s legitimate in-
terest in “preserving the cores of prior districts” and the fact that the
areas constituting District 7’s core have been grouped together for dec-
ades.
Karcher
v.
Daggett
,
[11] The equal-population baseline for Alabama’s seven districts is 717,154 persons per district.
Black Belt. The plaintiffs’ maps, therefore, cannot and do not achieve their goal of two majority-black districts by “join[ing] together” the Black Belt, as the majority seems wrongly to believe. Ante , at 13. Rather, their majority- black districts are anchored by three separate high-density clusters of black residents in three separate metropolitan areas, two of them outside the Black Belt. The Black Belt’s largely rural remainder is then divided between the two districts to the extent needed to fill out their population numbers with black majorities in both. Respect for the Black Belt as a community of interest cannot explain this approach. The only explanation is the plaintiffs’ express racial target: two majority-black districts and statewide proportionality.
The District Court nonetheless found that race did not
predominate in the plaintiffs’ illustrative maps because Dr.
Duchin and Mr. Cooper “prioritized race only as necessary
. . . to draw two reasonably compact majority-Black con-
gressional districts,” as opposed to “maximiz[ing] the num-
ber of majority-Black districts, or the BVAP [black voting-
age population] in any particular majority-Black district.”
Singleton
v.
Merrill
,
[12] The plurality’s somewhat elliptical discussion of “the line between
racial predominance and racial consciousness,”
ante
, at 23, suggests that
it may have fallen into a similar error. To the extent the plurality sup-
poses that, under our precedents, a State may purposefully sort voters
based on race to some indefinite extent without crossing the line into
predominance, it is wrong, and its predominance analysis would water
down decades of racial-gerrymandering jurisprudence. Our constitu-
tional precedents’ line between racial awareness and racial predomi-
nance simply tracks the distinction between awareness of consequences,
on the one hand, and discriminatory
purpose
, on the other. See
Miller
,
considerations”). The plurality thus affirms the District Court’s finding only in part and with regard to Mr. Cooper’s plans alone.
In doing so, the plurality acts as if the only relevant evi-
dence were Mr. Cooper’s testimony about his own mental
state and the State’s expert’s analysis of Mr. Cooper’s maps.
See
ante
, at 23–24. Such a blinkered view of the issue is
unjustifiable. All 11 illustrative maps follow the same ap-
proach to creating two majority-black districts. The essen-
tial design features of Mr. Cooper’s maps are indistinguish-
able from Dr. Duchin’s, and it is those very design features
that would require race to predominate. None of the plain-
tiffs’ maps could possibly be drawn by a mapmaker who was
merely “aware of,” rather than motivated by, “racial de-
mographics.”
Miller
,
[13] The plurality’s reasoning does not withstand scrutiny even on its
own terms. Like Dr. Duchin, Mr. Cooper found it “necessary to consider
race” to construct two majority-black districts,
that “an express racial target” is not highly probative evi- dence of racial predominance. 580 U. S., at 192 (placing “express racial target[s]” alongside “stark splits in the ra- cial composition of [redistricted] populations” as “relevant districtwide evidence”). That the Bethune-Hill majority “decline[d]” to act as a “ ‘court of . . . first view,’ ” instead leaving the ultimate issue of predominance for remand, cannot be transmuted into such an implausible holding or, in truth, any holding at all. , at 193.
The plurality is also mistaken that my predominance analysis would doom every illustrative map a §2 plaintiff “ever adduced.” Ante , at 25 (emphasis deleted). Rather, it would mean only that—because §2 requires a race-neutral benchmark—plaintiffs cannot satisfy their threshold bur- den of showing a reasonably configured alternative plan with a proposal that could only be viewed as a racial gerry- mander if enacted by the State. This rule would not bar a showing, in an appropriate case, that a State could create an additional majority-minority district through a reasona- ble redistricting process in which race did not predominate. It would, on the other hand, screen out efforts to use §2 to push racially proportional districting to the limits of what a State’s geography and demography make possible—the approach taken by the illustrative maps here.
C
The foregoing analysis should be enough to resolve these
cases: If the plaintiffs have not shown that Alabama could
create two majority-black districts without resorting to a
racial gerrymander, they cannot have shown that Ala-
bama’s one-majority-black-district map “dilutes” black Ala-
bamians’ voting strength relative to any meaningfully race-
neutral benchmark. The inverse, however, is not true: Even
if it were possible to regard the illustrative maps as not re-
quiring racial predominance, it would not necessarily follow
that a two-majority-black-district map was an appropriate
*67
benchmark. All that might follow is that the illustrative
maps were reasonably configured—in other words, that
they were consistent with some reasonable application of
traditional districting criteria in which race did not pre-
dominate. See
LULAC
,
Finally, it is surely probative that over 2 million race-
neutral simulations did not yield a single plan with two
majority-black districts, and even 20,000 simulations with
a one-majority-black-district floor did not yield a second dis-
trict with a black voting-age population over 40%. If any
plan with two majority-black districts would be an “out-out-
out-outlier” within the likely universe of race-neutral dis-
tricting plans,
Rucho
,
[14] The majority points to limitations of Dr. Duchin’s and Dr. Imai’s al- gorithms that do not undermine the strong inference from their results to the conclusion that no two-majority-black-district plan could be an ap- propriate proxy for the undiluted benchmark. Ante at 26, 28–29. I have already explained why the fact that Dr. Duchin’s study used 2010 census data is irrelevant. See n. 9, supra . As for the algorithms’ inability to incorporate all possible districting considerations, the absence of addi- tional constraints cannot explain their failure to produce any maps hit- ting the plaintiffs’ preferred racial target. Next, while it is true that the number of possible districting plans is extremely large, that does not mean it is impossible to generate a statistically significant sample. Here, for instance, Dr. Imai explained that “10,000 simulated plans” was suffi- cient to “yield statistically precise conclusions” and that any higher num- ber would “not materially affect” the results. Supp. App. 60. Finally, the majority notes Dr. Duchin’s testimony that her “exploratory algorithms” found “thousands” of possible two-majority-black-district maps. 2 App. 622; see ante , at 27, n. 7. Setting aside that Dr. Duchin never provided the denominator of which those “thousands” were the numerator, it is no wonder that the algorithms in question generated such maps; as Dr. *69 ,
D
Given all this, by what benchmark did the District Court find that Alabama’s enacted plan was dilutive? The answer is as simple as it is unlawful: The District Court applied a benchmark of proportional control based on race. To be sure, that benchmark was camouflaged by the elaborate vote-dilution framework we have inherited from Gingles . But nothing else in that framework or in the District Court’s reasoning supplies an alternative benchmark capa- ble of explaining the District Court’s bottom line: that Ala- bama’s one-majority-black-district map dilutes black vot- ers’ fair share of political power.
Under Gingles , the majority explains, there are three “preconditions” to a vote-dilution claim: (1) the relevant “minority group must be sufficiently large and geograph- ically compact to constitute a majority in a reasonably con- figured district”; (2) the minority group must be “politically cohesive”; and (3) the majority group must “vot[e] suffi- ciently as a bloc to enable it to defeat the minority’s pre- ferred candidate[s].” Ante at 10 (alterations and internal quotation marks omitted). If these preconditions are satis- fied, Gingles instructs courts to “consider the totality of the circumstances and to determine, based upon a searching practical evaluation of the past and present reality, whether the political process is equally open to minority voters.” 478 U. S., at 79 (citation and internal quotation marks omitted).
The majority gives the impression that, in applying this framework, the District Court merely followed a set of well- ——————
Duchin explained, she programmed them with “an algorithmic prefer-
ence” for “plans in which there would be a second majority-minority dis-
trict.”
The first
Gingles
precondition is only marginally more
useful. True, the benchmark in a redistricting challenge
*71
HOMAS must be “a hypothetical, undiluted plan,”
Bossier Parish
School Bd.
,
That leaves only the Gingles framework’s final stage: the totality-of-circumstances determination whether a State’s “political process is equally open to minority voters.” 478 U. S., at 79. But this formulation is mere verbiage unless one knows what an “equally open” system should look like—in other words, what the benchmark is. And, our cases offer no substantive guidance on how to identify the undiluted benchmark at the totality stage. The best they have to offer is a grab bag of amorphous “factors”—widely known as the Senate factors, after the Senate Judiciary Committee Report accompanying the 1982 amendments to §2—that Gingles said “typically may be relevant to a §2 claim.” See id. , at 44–45. Those factors, however, amount to no more than “a list of possible considerations that might be consulted by a court attempting to develop a gestalt view of the political and racial climate in a jurisdiction.” Holder , 512 U. S., at 938 (opinion of T , J.). Such a gestalt view is far removed from the necessary benchmark of a hypothetical, undiluted districting plan.
To see this, one need only consider the District Court’s use of the Senate factors here. See 582 F. Supp. 3d, at 1018–1024. The court began its totality-stage analysis by reiterating what nobody disputes: that voting in Alabama is racially polarized, with black voters overwhelmingly pre- ferring Democrats and white voters largely preferring Re- publicans. To rebut the State’s argument that this pattern is attributable to politics, not race per se , the court noted that Donald Trump (who is white) prevailed over Ben Car- *72 son (who is black) in the 2016 Republican Presidential pri- mary. Next, the court observed that black candidates rarely win statewide elections in Alabama and that black state legislators overwhelmingly come from majority-mi- nority districts. The court then reviewed Alabama’s history of racial discrimination, noted other voting-rights cases in which the State was found liable, and cataloged socioeco- nomic disparities between black and white Alabamians in everything from car ownership to health insurance cover- age. The court attributed these disparities “at least in part” to the State’s history of discrimination and found that they hinder black residents from participating in politics today, notwithstanding the fact that black and white Alabamians register and turn out to vote at similar rates. Id. , at 1021– 1022. Last, the court interpreted a handful of comments by three white politicians as “racial campaign appeals.” , at 1023–1024.
In reviewing this march through the Senate factors, it is impossible to discern any overarching standard or central question, only what might be called an impressionistic moral audit of Alabama’s racial past and present. Nor is it possible to determine any logical nexus between this audit and the remedy ordered: a congressional districting plan in which black Alabamians can control more than one seat. Given the District Court’s finding that two reasonably con- figured majority-black districts could be drawn, would Ala- bama’s one-district map have been acceptable if Ben Carson had won the 2016 primary, or if a greater number of black Alabamians owned cars?
The idea that such factors could explain the District Court’s judgment line is absurd. The plaintiffs’ claims pose one simple question: What is the “right” number of Ala- bama’s congressional seats that black voters who support Democrats “should” control? Neither the Senate factors nor the Gingles framework as a whole offers any principled an- swer.
T HOMAS In reality, the limits of the
Gingles
preconditions and the
aimlessness of the totality-of-circumstances inquiry left the
District Court only one obvious and readily administrable
option: a benchmark of “allocation of seats in direct propor-
tion to the minority group’s percentage in the population.”
Holder
,
Thus, in the absence of an alternative benchmark, the vote-dilution inquiry has a strong and demonstrated ten- dency to collapse into a rough two-part test: (1) Does the challenged districting plan give the relevant minority group control of a proportional share of seats? (2) If not, has the plaintiff shown that some reasonably configured districting *74 plan could better approximate proportional control? In this approach, proportionality is the ultimate benchmark, and the first Gingles precondition becomes a proxy for whether that benchmark is reasonably attainable in practice. Beneath all the trappings of the Gingles framework, that two-part test describes how the District Court applied §2 here. The gravitational force of proportionality is obvious throughout its opinion. At the front end, the District Court even built proportionality into its understanding of Gingles ’ first precondition, finding the plaintiffs’ illustrative maps to be reasonably configured in part because they “provide[d] a number of majority-Black districts . . . roughly propor- tional to the Black percentage of the population.” 582 F. Supp. 3d, at 1016. At the back end, the District Court concluded its “totality” analysis by revisiting proportional- ity and finding that it “weigh[ed] decidedly in favor of the plaintiffs.” Id. , at 1025. While the District Court dis- claimed giving overriding significance to proportionality, the fact remains that nothing else in its reasoning provides a logical nexus to its finding of a districting wrong and a need for a districting remedy. Finally, as if to leave no doubt about its implicit benchmark, the court admonished the State that “any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close.” , at 1033. In sum, the District Court’s thinly disguised benchmark was pro- portionality: Black Alabamians are about two-sevenths of the State’s population, so they should control two of the State’s seven congressional seats.
That was error—perhaps an understandable error given the limitations of the Gingles framework, but error none- theless. As explained earlier, any principled application of §2 to cases such as these requires a meaningfully race- neutral benchmark. The benchmark cannot be an a priori thumb on the scale for racially proportional control.
E
The majority opinion does not acknowledge the District Court’s express proportionality-based reasoning. That omission is of a piece with its earlier noted failures to acknowledge the well-known indeterminacy of the Gingles framework, that black Alabamians are about two-sevenths of the State’s population, and that the plaintiffs here are thus seeking statewide proportionality. Through this pat- tern of omissions, the majority obscures the burning ques- tion in these cases. The District Court’s vote-dilution find- ing can be justified only by a racially loaded benchmark— specifically, a benchmark of proportional control based on race. Is that the benchmark the statute demands? The ma- jority fails to confront this question head on, and it studi- ously avoids mentioning anything that would require it to do so.
The same nonresponsiveness infects the majority’s anal- ysis, which is largely devoted to rebutting an argument no- body makes. Contrary to the majority’s telling, Alabama does not equate the “race-neutral benchmark” with “the me- dian or average number of majority-minority districts” in a large computer-generated set of race-blind districting plans. Ante , at 15. The State’s argument for a race-neutral benchmark is rooted in the text of §2, the logic of vote- dilution claims, and the constitutional problems with any nonneutral benchmark. See Brief for Appellants 32–46. It then relies on the computer evidence in these cases, among other facts, to argue that the plaintiffs have not shown di- lution relative to any race-neutral benchmark. See id. , at 54–56. But the idea that “race-neutral benchmark” means the composite average of many computer-generated plans is the majority’s alone.
After thus straw-manning Alabama’s arguments at the outset, the majority muddles its own response. In a per- functory footnote, it disclaims any holding that “algorithmic map making” evidence “is categorically irrelevant” in §2 *76 , cases. Ante , at 28, n. 8. That conclusion, however, is the obvious implication of the majority’s reasoning and rheto- ric. See ante , at 27 (decrying a “map-comparison test” as “flawed in its fundamentals” even if it involves concededly “adequate comparators”); see also ante , at 17–18 (stating that the “focu[s]” of §2 analysis is “on the specific illustra- tive maps that a plaintiff adduces,” leaving unstated the implication that other algorithmically generated maps are irrelevant). The majority in effect, if not in word, thus fore- closes any meaningful use of computer evidence to help lo- cate the undiluted benchmark.
There are two critical problems with this fiat. The first, which the majority seems to recognize yet fails to resolve, is that excluding such computer evidence from view cannot be reconciled with §2’s command to consider “the totality of circumstances.” [15] Second—and more fundamentally—the reasons that the majority gives for downplaying the rele- vance of computer evidence would more logically support a holding that there is no judicially manageable way of apply- ing §2’s results test to single-member districts. The major- ity waxes about the “myriad considerations” that go into districting, the “difficult, contestable choices” those consid- erations require, and how “[n]othing in §2 provides an an- ——————
[15] The majority lodges a similar accusation against the State’s argu-
ments (or what it takes to be the State’s arguments). See
ante
, at 18
(“Alabama suggests there is only one ‘circumstance’ that matters—how
the State’s map stacks up relative to the benchmark” (alteration omit-
ted)). But its rebuke is misplaced. The “totality of circumstances” means
that courts must consider all circumstances relevant to an
issue. It does not mean that they are forbidden to attempt to define the
substantive standard that governs that issue. In arguing that a vote-
dilution claim requires judging a State’s plan relative to an undiluted
benchmark to be drawn from the totality of circumstances—including,
where probative, the results of districting simulations—the State argues
little more than what we have long acknowledged. See
Reno Bossier
Parish School Bd.
swer” to the question of how well any given algorithm ap- proximates the correct benchmark. Ante , at 27–28 (internal quotation marks omitted). In the end, it concludes, “Section 2 cannot require courts to judge a contest of computers” in which “there is no reliable way to determine who wins, or even where the finish line is.” Ante , at 29.
The majority fails to recognize that
whether
vote-dilution
claims require an undiluted benchmark is not up for debate.
If §2 applies to single-member districting plans, courts can-
not dispense with an undiluted benchmark for comparison,
ascertained by an objective and workable method.
Bossier
Parish School Bd.
,
Ultimately, the majority has very little to say about the appropriate benchmark. What little it does say suggests that the majority sees no real alternative to the District Court’s proportional-control benchmark, though it appears unwilling to say so outright. For example, in a nod to the
T HOMAS , statutory text and its “equal openness” requirement, the majority asserts that “[a] district is not equally open . . . when minority voters face—unlike their majority peers— bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.” Ante , at 17. But again, we have held that dilution cannot be shown without an objective, undiluted bench- mark, and this verbiage offers no guidance for how to deter- mine it. [16] Later, the majority asserts that “the Gingles framework itself imposes meaningful constraints on pro- portionality.” Ante , at 18–19. But the only constraint on proportionality the majority articulates is that it is often difficult to achieve —which, quite obviously, is no principled limitation at all. Ante , at 20–22.
Thus, the end result of the majority’s reasoning is no dif- ferent from the District Court’s: The ultimate benchmark is a racially proportional allocation of seats, and the main question on which liability turns is whether a closer approx- imation to proportionality is possible under any reasonable application of traditional districting criteria. [17] This ap- ——————
[16] To the extent it is any sort of answer to the benchmark question, it
tends inevitably toward proportionality. By equating a voting minority’s
inability to win elections with a vote that has been “render[ed] . . . une-
qual,”
ante
at 17, the majority assumes “that members of [a] minority
are denied a fully effective use of the franchise unless they are able to
control seats in an elected body.”
Holder
,
[17] Indeed, the majority’s attempt to deflect this analysis only confirms its accuracy. The majority stresses that its understanding of Gingles permits the rejection of “plans that would bring States closer to propor- tionality when those plans violate traditional districting criteria .” Ante , at 21, n. 4 (emphasis added). J USTICE K AVANAUGH , similarly, defends Gingles against the charge of “mandat[ing] a proportional number of *79 HOMAS proach, moreover, is consistent with how the majority de- scribes the role of plaintiffs’ illustrative maps, as well as an unjustified practical asymmetry to which its rejection of computer evidence gives rise. Courts are to “focu[s] . . . on the specific illustrative maps that a plaintiff adduces,” ante , at 17–18, by which the majority means that courts should not “focu[s]” on statistical evidence showing those maps to be outliers. Thus, plaintiffs may use an algorithm to gen- erate any number of maps that meet specified districting criteria and a preferred racial target; then, they need only produce one of those maps to “sho[w] it is possible that the State’s map” is dilutive . Ante , at 18 (emphasis in original). But the State may not use algorithmic evidence to suggest that the plaintiffs’ map is an unsuitable benchmark for comparison—not even, apparently, if it can prove that the illustrative map is an outlier among “billion[s]” or “tril- lion[s]” of concededly “adequate comparators.” Ante , at 27, 29; see also ante , at 29 (rejecting sampling algorithms). This arbitrary restriction amounts to a thumb on the scale for §2 plaintiffs—an unearned presumption that any “rea- sonable” map they put forward constitutes a benchmark against which the State’s map can be deemed dilutive. And, once the comparison is framed in that way, the only worka- ble rule of decision is proportionality. See Holder , 512 U. S., at 941–943 (opinion of T , J.).
By affirming the District Court, the majority thus ap- proves its benchmark of proportional control limited only by feasibility, and it entrenches the most perverse tendencies ——————
majority-minority districts” by emphasizing that it requires only the cre- ation of majority-minority districts that are compact and reasonably con- figured. Ante , at 2 (opinion concurring in part). All of this precisely tracks my point: As construed by the District Court and the majority, §2 mandates an ever closer approach to proportional control that stops only when a court decides that a further step in that direction would no longer be consistent with any reasonable application of traditional districting criteria. *80 ,
of our vote-dilution jurisprudence. It guarantees that courts will continue to approach vote-dilution claims just as the District Court here did: with no principled way of deter- mining how many seats a minority “should” control and with a strong temptation to bless every incremental step toward a racially proportional allocation that plaintiffs can pass off as consistent with any reasonable map.
III
As noted earlier, the Court has long recognized the need
to avoid interpretations of §2 that “ ‘would unnecessarily in-
fuse race into virtually every redistricting, raising serious
constitutional questions.’ ”
Bartlett
Because the Constitution “restricts consideration of race
and the [Voting Rights Act] demands consideration of race,”
Abbott
, 585 U. S., at ___ (slip op., at 4), strict scrutiny is
implicated wherever, as here, §2 is applied to require a
State to adopt or reject any districting plan on the basis of
race. See
Bartlett
,
If Congress has any power at all to require States to sort
voters into congressional districts based on race, that power
must flow from its authority to “enforce” the Fourteenth
and Fifteenth Amendments “by appropriate legislation.”
Amdt. 14, §5; Amdt. 15, §2. Since Congress in 1982 re-
placed intent with effects as the criterion of liability, how-
ever, “a violation of §2 is no longer
a fortiori
a violation of ”
either Amendment.
Bossier Parish School Bd.
, 520 U. S.,
at 482. Thus, §2 can be justified only under Congress’
power to “enact reasonably prophylactic legislation to deter
constitutional harm.”
Allen
v.
Cooper
, 589 U. S. ___, ___
(2020) (slip op., at 11) (alteration and internal quotation
marks omitted); see
City of Boerne
v.
Flores
,
[18] In Bethune-Hill v. Virginia State Bd. of Elections , 580 U. S. 178 (2017), the Court upheld a race-predominant district based on the as- sumed compelling interest of complying with §5 of the Voting Rights Act. Id. , at 193–196. There, the Court was explicit that it was still merely “assum[ing], without deciding,” that the asserted interest was compel- ling, as the plaintiffs “d[id] not dispute that compliance with §5 was a compelling interest at the relevant time.” , at 193.
enforcement authority is “remedial, rather than substan-
tive,” “[t]here must be a congruence and proportionality be-
tween the injury to be prevented or remedied and the
means adopted to that end.”
[19]
, at 520. Congress’ chosen
means, moreover, must “ ‘consist with the letter and spirit
of the constitution.’ ”
Shelby County
v.
Holder
, 570 U. S.
529, 555 (2013) (quoting
McCulloch
v.
Maryland
, 4 Wheat.
316, 421 (1819)); accord,
Miller
,
[19] While our congruence-and-proportionality cases have focused pri-
marily on the Fourteenth Amendment, they make clear that the same
principles govern “Congress’ parallel power to enforce the provisions of
the Fifteenth Amendment.”
City of Boerne
,
To determine the congruence and proportionality of a
measure, we must begin by “identify[ing] with some preci-
sion the scope of the constitutional right at issue.”
Board of
Trustees of Univ. of Ala.
v.
Garrett
, 531 U. S. 356, 365
(2001). The Reconstruction Amendments “forbi[d], so far as
civil and political rights are concerned, discrimination . . .
against any citizen because of his race,” ensuring that “[a]ll
citizens are equal before the law.”
Gibson
v.
Mississippi
,
These same principles foreclose a construction of the
Amendments that would entitle members of racial minori-
ties,
qua
racial minorities, to have their preferred candi-
dates win elections. Nor do the Amendments limit the
rights of members of a racial majority to support
their
pre-
ferred candidates—regardless of whether minorities prefer
different candidates and of whether “the majority, by virtue
of its numerical superiority,” regularly prevails.
Gingles
,
[20] This formulation does not specifically account for the District Court’s findings under the Senate factors, which, as I have explained, lack any traceable logical connection to the finding of a districting wrong or the need for a districting remedy. *84 HOMAS
are not merely foreign to the Amendments. Rather, they are radically inconsistent with the Amendments’ command that government treat citizens as individuals and their “goal of a political system in which race no longer matters.” Ibid.
Those notions are, however, the values at the heart of §2 as construed by the District Court and the majority. As ap- plied here, the statute effectively considers it a legal wrong by the State if white Alabamians vote for candidates from one political party at high enough rates, provided that black Alabamians vote for candidates from the other party at a still higher rate. And the statute remedies that wrong by requiring the State to engage in race-based redistricting in the direction of proportional control.
I am not certain that Congress’ enforcement power could
ever
justify a statute so at odds “ ‘with the letter and spirit
of the constitution.’ ”
Shelby County
,
As applied here, the amended §2 thus falls on the wrong side of “the line between measures that remedy or prevent unconstitutional actions and measures that make a sub- stantive change in the governing law.” City of Boerne , 521 U. S., at 519. It replaces the constitutional right against intentionally discriminatory districting with an amorphous race-based right to a “fair” distribution of political power, a “right” that cannot be implemented without requiring the very evils the Constitution forbids.
If that alone were not fatal, §2’s “reach and scope” fur-
ther belie any congruence and proportionality between its
districting-related commands, on the one hand, and action-
able constitutional wrongs, on the other.
Id.
, at 532. Its
“[s]weeping coverage ensures its intrusion at every level of
government” and in every electoral system.
Ibid.
It “has
no termination date or termination mechanism.”
Ibid.
Thus, the amended §2 is not spatially or temporally “limited
to those cases in which constitutional violations [are] most
likely.” , at 533. Nor does the statute limit its reach to
“attac[k] a particular type” of electoral mechanism “with a
long history as a ‘notorious means to deny and abridge vot-
ing rights on racial grounds.’ ”
Ibid.
(quoting
South Caro-
lina
v.
Katzenbach
,
Of course, under the logically unbounded totality-of-
*86
circumstances inquiry, a court applying §2 can always em-
broider its vote-dilution determination with findings about
past or present unconstitutional discrimination. But this
possibility does nothing to heal either the fundamental con-
tradictions between §2 and the Constitution or its extreme
overbreadth relative to actual constitutional wrongs. “A
generalized assertion of past discrimination” cannot justify
race-based redistricting, “because it provides no guidance
for a legislative body to determine the precise scope of the
injury it seeks to remedy.”
Shaw II
,
For an example of these baleful results, we need look no
further than the congressional districts at issue here. In
1992, Alabama and a group of §2 plaintiffs, whom a federal
court chose to regard as the representatives “of all African-
American citizens of the State of Alabama,” stipulated that
the State’s black population was “ ‘sufficiently compact and
contiguous to comprise a single member significant major-
ity (65% or more) African American Congressional dis-
trict,’ ” and that, “ ‘[c]onsequently,’ ” such a “ ‘district should
be created.’ ”
Wesch
v.
Hunt
,
Now, 30 years later, the plaintiffs here demand that Ala-
bama carve up not two but three of its main urban centers
on the basis of race, and that it configure those urban cen-
ters’ black neighborhoods with the outlying majority-black
rural areas so that black voters can control not one but two
of the State’s seven districts. The Federal Judiciary now
upholds their demand—overriding the State’s undoubted
interest in preserving the core of its existing districts, its
plainly reasonable desire to maintain the Gulf Coast region
as a cohesive political unit, and its persuasive arguments
that a race-neutral districting process would not produce
anything like the districts the plaintiffs seek. Our reasons
for doing so boil down to these: that the plaintiffs’ proposed
districts are more or less within the vast universe of rea-
sonable districting outcomes; that Alabama’s white voters
do not support the black minority’s preferred candidates;
that Alabama’s racial climate, taken as a rarefied whole,
crosses some indefinable line justifying our interference;
and, last but certainly not least, that black Alabamians are
about two-sevenths of the State’s overall population.
By applying §2 in this way to claims of this kind, we en-
courage a conception of politics as a struggle for power be-
tween “competing racial factions.”
Shaw I
, 509 U. S., at
*88
HOMAS 657. We indulge the pernicious tendency of assigning
Americans to “creditor” and “debtor race[s],” even to the
point of redistributing political power on that basis.
Adarand Constructors, Inc.
v.
Peña
, 515 U. S. 200, 239
(1995) (Scalia, J., concurring in part and concurring in judg-
ment). We ensure that the race-based redistricting we im-
pose on Alabama now will bear divisive consequences long
into the future, just as the initial creation of District 7 seg-
regated Jefferson County for decades and minted the tem-
plate for crafting black “political homelands” in Alabama.
Holder
,
The majority deflects this conclusion by appealing to two
of our older Voting Rights Act cases,
City of Rome
v.
United
States
,
In fact, the majority’s cases confirm the very limits on
Congress’ enforcement powers that are fatal to the District
Court’s construction of §2.
City of Rome
, for example, im-
mediately after one of the sentences quoted by the majority,
explained the remedial rationale for its approval of the 1975
preclearance extension: “Congress could rationally have
concluded that, because electoral changes
by jurisdictions
with a demonstrable history of intentional racial discrimi-
nation in voting create the risk of purposeful discrimination
,
it was proper to prohibit changes that have a discrimina-
tory impact.”
[21] J USTICE K AVANAUGH , at least, recognizes that §2’s constitutional
footing is problematic, for he agrees that “race-based redistricting cannot
extend indefinitely into the future.”
Ante
, at 4 (opinion concurring in
part). Nonetheless, J USTICE K AVANAUGH votes to sustain a system of in-
stitutionalized racial discrimination in districting—under the aegis of a
statute that applies nationwide and has no expiration date—and thus to
prolong the “lasting harm to our society” caused by the use of racial clas-
sifications in the allocation of political power.
Shaw I
,
IV
These cases are not close. The plaintiffs did not prove that Alabama’s districting plan “impose[s] or applie[s]” any “voting qualification or prerequisite to voting or standard, practice, or procedure” that effects “a denial or abridgement of the[ir] right . . . to vote on account of race or color.” §10301(a). Nor did they prove that Alabama’s congres- sional districts “are not equally open to participation” by black Alabamians. §10301(b). The plaintiffs did not even prove that it is possible to achieve two majority-black dis- tricts without resorting to a racial gerrymander. The most that they can be said to have shown is that sophisticated mapmakers can proportionally allocate Alabama’s congres- sional districts based on race in a way that exceeds the Fed- eral Judiciary’s ability to recognize as a racial gerrymander with the naked eye. The District Court held that this show- ing, plus racially polarized voting and its gestalt view of Al- abama’s racial climate, was enough to require the State to redraw its districting plan on the basis of race. If that is the benchmark for vote dilution under §2, then §2 is noth- ing more than a racial entitlement to roughly proportional control of elective offices—limited only by feasibility— wherever different racial groups consistently prefer differ- ent candidates.
If that is what §2 means, the Court should hold that it is
unconstitutional. If that is not what it means, but §2 ap-
plies to districting, then the Court should hold that vote-
dilution challenges require a race-neutral benchmark that
bears no resemblance to unconstitutional racial registers.
On the other hand, if the Court believes that finding a race-
neutral benchmark is as impossible as much of its rhetoric
suggests, it should hold that §2 cannot be applied to single-
member districting plans for want of an “objective and
workable standard for choosing a reasonable benchmark.”
Holder
,
The majority goes to great lengths to decline all of these
options and, in doing so, to fossilize all of the worst aspects
of our long-deplorable vote-dilution jurisprudence. The ma-
jority recites
Gingles
’ shopworn phrases as if their meaning
were self-evident, and as if it were not common knowledge
that they have spawned intractable difficulties of definition
and application. It goes out of its way to reaffirm §2’s ap-
plicability to single-member districting plans both as a pur-
ported original matter and on highly exaggerated
stare de-
cisis
grounds. It virtually ignores Alabama’s primary
argument—that, whatever the benchmark is, it must be
race neutral—choosing, instead, to quixotically joust with
an imaginary adversary. In the process, it uses special
pleading to close the door on the hope cherished by some
thoughtful observers, see
Gonzalez
,
I find it difficult to understand these maneuvers except as proceeding from a perception that what the District Court did here is essentially no different from what many courts have done for decades under this Court’s superin- tendence, joined with a sentiment that it would be unthink- able to disturb that approach to the Voting Rights Act in any way. I share the perception, but I cannot understand the sentiment. It is true that, “under our direction, federal ——————
[22] The Court does not address whether §2 contains a private right of action, an issue that was argued below but was not raised in this Court. See Brnovich v. Democratic National Committee , 594 U. S. ___, ___ (2021) (G ORSUCH , J., concurring) (slip op., at 1). *93 HOMAS
courts [have been] engaged in methodically carving the
country into racially designated electoral districts” for dec-
ades now.
Holder
,
“In my view, our current practice should not con- tinue. Not for another Term, not until the next case, not for another day. The disastrous implications of the policies we have adopted under the Act are too grave; the dissembling in our approach to the Act too damag- ing to the credibility of the Federal Judiciary. The ‘in- herent tension’—indeed, I would call it an irreconcila- ble conflict—between the standards we have adopted for evaluating vote dilution claims and the text of the Voting Rights Act would itself be sufficient in my view to warrant overruling the interpretation of §2 set out in Gingles . When that obvious conflict is combined with the destructive effects our expansive reading of the Act has had in involving the Federal Judiciary in the project of dividing the Nation into racially segre- gated electoral districts, I can see no reasonable alter- native to abandoning our current unfortunate under- standing of the Act.” , at 944.
I respectfully dissent.
Appendix to opinion of T J. *95 Appendix to opinion of T J.
Appendix to opinion of T J.
A LITO SUPREME COURT OF THE UNITED STATES
_________________ Nos. 21–1086 and 21–1087 _________________ WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., APPELLANTS
21–1086 v.
EVAN MILLIGAN, ET AL .
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
WES ALLEN, ALABAMA SECRETARY OF STATE,
ET AL ., PETITIONERS
21–1087 v.
MARCUS CASTER, ET AL .
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 8, 2023]
J USTICE A LITO , with whom J USTICE G ORSUCH joins, dis- senting.
Based on a flawed understanding of the framework adopted in Thornburg Gingles , 478 U. S. 30 (1986), the Court now holds that the congressional districting map adopted by the Alabama Legislature violates §2 of the Vot- ing Rights Act. Like the Court, I am happy to apply Gingles in these cases. But I would interpret that precedent in a way that heeds what §2 actually says, and I would take con- stitutional requirements into account. When the Gingles framework is viewed in this way, it is apparent that the de- cisions below must be vacated. *98 v.
A LITO I A Gingles marked the Court’s first encounter with the amended version of §2 that Congress enacted in 1982, and the Court’s opinion set out an elaborate framework that has since been used to analyze a variety of §2 claims. Under that framework, a plaintiff must satisfy three “precondi- tions.” Id. , at 50. As summarized in more recent opinions, they are as follows:
“First, [the] ‘minority group’ [whose interest the plain- tiff represents] must be ‘sufficiently large and geo- graphically compact to constitute a majority’ in some reasonably configured legislative district. Second, the minority group must be ‘politically cohesive.’ And third, a district’s white majority must ‘vote[ ] suffi- ciently as a bloc’ to usually ‘defeat the minority’s pre- ferred candidate.’ ” Cooper v. Harris , 581 U. S. 285, 301–302 (2017) (citations omitted).
See also
Wisconsin Legislature
v.
Wisconsin Elections
Comm’n
,
If a §2 plaintiff can satisfy all these preconditions, the
court must then decide whether, based on the totality of the
circumstances, the plaintiff ’s right to vote was diluted. See
Gingles
,
B
My fundamental disagreement with the Court concerns the first Gingles precondition. In cases like these, where
A LITO the claim is that §2 requires the creation of an additional
majority-minority district, the first precondition means
that the plaintiff must produce an additional illustrative
majority-minority district that is “reasonably configured.”
Cooper
,
To its credit, the Court recognizes that compactness is not enough and that a district is not reasonably configured if it flouts other “traditional districting criteria.” Ante , at 10. At various points in its opinion it names quite a few: mini- mizing the splitting of counties and other political subdivi- sions, keeping “communities of interest” together where possible, and avoiding the creation of new districts that re- quire two incumbents to run against each other. Ante , at 12, 26–27. In addition, the Court acknowledges that a dis- trict is not “reasonably configured” if it does not comport with the Equal Protection Clause’s one-person, one-vote re- quirement. Ante , at 27. But the Court fails to explain why compliance with “traditional districting criteria” matters under §2 or why the only relevant equal protection principle is the one-person, one-vote requirement. If the Court had attempted to answer these questions, the defect in its un- derstanding of the first Gingles precondition would be un- mistakable.
To explain this, I begin with what is probably the most frequently mentioned traditional districting criterion and ask why it should matter under §2 whether a proposed
A LITO majority-minority district is “compact.” Neither the Voting
Rights Act (VRA) nor the Constitution imposes a compact-
ness requirement. The Court notes that we have struck
down bizarrely shaped districts,
ante
, at 19–20, but we did
not do that for esthetic reasons. Compactness in and of it-
self is not a legal requirement—or even necessarily an es-
thetic one. (Some may find fancifully shaped districts more
pleasing to the eye than boring squares.)
The same is true of departures from other traditional dis-
tricting criteria. Again, nothing in the Constitution or the
VRA demands compliance with these criteria. If a whimsi-
cal state legislature cavalierly disregards county and mu-
nicipal lines and communities of interest, draws weirdly
shaped districts, departs radically from a prior map solely
for the purpose of change, and forces many incumbents to
run against each other, neither the Constitution nor the
VRA would make any of that illegal
per se
. Bizarrely
shaped districts and other marked departures from tradi-
tional districting criteria matter because mapmakers usu-
ally heed these criteria, and when it is evident that they
have not done so, there is reason to suspect that something
untoward—specifically, unconstitutional racial gerryman-
dering—is afoot. See,
e.g.
,
Shaw
v.
Reno
, 509 U. S. 630,
643–644 (1993);
Bush
v.
Vera
, 517 U. S. 952, 979 (1996)
(plurality opinion); cf.
LULAC
,
A LITO (
Shaw II
);
Miller
v.
Johnson
,
C
What all this means is that a §2 plaintiff who claims that a districting map violates §2 because it fails to include an additional majority-minority district must show at the out- set that such a district can be created without making race the predominant factor in its creation. The plaintiff bears both the burden of production and the burden of persuasion ——————
[1] Alabama’s districting guidelines explicitly incorporate this non- predominance requirement. See Singleton v. Merrill , 582 F. Supp. 3d 924, 1036 (ND Ala. 2022 ). *102 v.
A LITO on this issue, see
Voinovich Quilter
,
A plaintiff need not offer computer-related evidence. Once upon a time, legislative maps were drawn without us- ing a computer, and nothing prevents a §2 plaintiff from taking this old-school approach in creating an illustrative district. See, e.g. , M. Altman, K. McDonald, & M. McDon- ald, From Crayons to Computers: The Evolution of Com- puter Use in Redistricting, 23 Soc. Sci. Computer Rev. 334, 335–336 (2005). In that event, the plaintiff can simply call upon the mapmaker to testify about the process he or she used and the role, if any, that race played in that process. The defendant may seek to refute that testimony in any way that the rules of civil procedure and evidence allow. If, as will often be the case today, a §2 plaintiff ’s map- maker uses a computer program, the expert can testify about the weight, if any, that the program gives to race. The plaintiff will presumably argue that any role assigned to race was not predominant, and the defendant can contest this by cross-examining the plaintiff ’s expert, seeking the actual program in discovery, and calling its own expert to testify about the program’s treatment of race. After this, the trial court will be in a position to determine whether the program gave race a “predominant” role.
This is an entirely workable scheme. It does not obligate
either party to offer computer evidence, and it minimizes
the likelihood of a clash between what §2 requires and what
the Constitution forbids. We have long assumed that §2 is
consistent with the Constitution. See,
e.g.
,
Cooper
, 581
U. S., at 301 (assuming States have a compelling interest
in complying with §2);
Shaw II
, 517 U. S., at 915 (same);
Vera
,
A LITO , constitutional, and I do not understand the majority’s anal- ysis of Alabama’s constitutional claim to suggest otherwise. Ante , at 33–34; ante , at 4 (K AVANAUGH , J., concurring in part).
Our cases make it perfectly clear that using race as a “predominant factor” in drawing legislative districts is un- constitutional unless the stringent requirements of strict scrutiny can be satisfied, [2] and therefore if §2 can be found to require the adoption of an additional majority-minority district that was created under a process that assigned race a “predominant” role, §2 and the Constitution would be headed for a collision.
II
When the meaning of a “reasonably configured” district
is properly understood, it is apparent that the decisions be-
low must be vacated and that the cases must be remanded
for the application of the proper test. In its analysis of
whether the plaintiffs satisfied the first
Gingles
precondi-
tion, the District Court gave much attention to some tradi-
tional districting criteria—specifically, compactness and
avoiding the splitting of political subdivisions and commu-
nities of interest—but it failed to consider whether the
plaintiffs had shown that their illustrative districts were
created without giving race a “predominant role.”
Singleton
Merrill
It is true that the District Court addressed the question of race-predominance when it discussed and rejected the State’s argument that the plaintiffs’ maps violated the Equal Protection Clause, but the court’s understanding of predominance was deeply flawed. The court began this part ——————
[2] Although our cases have posited that racial predominance may be ac- ceptable if strict scrutiny is satisfied, the Court does not contend that it is satisfied here.
A LITO of its opinion with this revealing statement:
“Dr. Duchin and Mr. Cooper [plaintiffs’ experts] testi- fied that they prioritized race only for the purpose of determining and to the extent necessary to determine whether it was possible for the Milligan plaintiffs and the Caster plaintiffs to state a Section Two claim. As soon as they determined the answer to that question, they assigned greater weight to other traditional redis- tricting criteria.” , at 1029–1030 (emphasis added). This statement overlooks the obvious point that by “priori- tiz[ing] race” at the outset, Dr. Duchin and Mr. Cooper gave race a predominant role.
The next step in the District Court’s analysis was even more troubling. The court wrote, “Dr. Duchin’s testimony that she considered two majority-Black districts as ‘non- negotiable’ does not” show that race played a predominant role in her districting process. Id ., at 1030. But if achieving a certain objective is “non-negotiable,” then achieving that objective will necessarily play a predominant role. Suppose that a couple are relocating to the Washington, D. C., met- ropolitan area, and suppose that one says to the other, “I’m flexible about where we live, but it has to be in Maryland. That’s non-negotiable.” Could anyone say that finding a home in Maryland was not a “predominant” factor in the couple’s search? Or suppose that a person looking for a flight tells a travel agent, “It has to be non-stop. That’s non- negotiable.” Could it be said that the number of stops be- tween the city of origin and the destination was not a “pre- dominant” factor in the search for a good flight? The obvi- ous answer to both these questions is no, and the same is true about the role of race in the creation of a new district. If it is “non-negotiable” that the district be majority black, then race is given a predominant role.
The District Court wrapped up this portion of its opinion with a passage that highlighted its misunderstanding of the
A LITO first Gingles precondition. The court thought that a §2 plaintiff cannot proffer a reasonably configured majority- minority district without first attempting to see if it is pos- sible to create such a district—that is, by first making the identification of such a district “non-negotiable.” Ibid . But that is simply not so. A plaintiff ’s expert can first create maps using only criteria that do not give race a predomi- nant role and then determine how many contain the desired number of majority-minority districts.
One final observation about the District Court’s opinion
is in order. The opinion gives substantial weight to the dis-
parity between the percentage of majority-black House dis-
tricts in the legislature’s plan (14%) and the percentage of
black voting-age Alabamians (27%), while the percentage in
the plaintiffs’ plan (29%) came closer to that 27% mark.
See,
e.g.
,
id.
, at 946, 1016, 1018, 1025–1026; see also
id.
, at
958–959, 969, 976, 982, 991–992, 996–997. Section 2 of the
VRA, however, states expressly that no group has a right to
representation “in numbers equal to their proportion in the
population.” 52 U. S. C. §10301(b). This provision was a
critical component of the compromise that led to the adop-
tion of the 1982 amendments, as the Court unanimously
agreed two Terms ago. See
Brnovich
,
III
The Court spends much of its opinion attacking what it takes to be the argument that Alabama has advanced in this litigation. I will not debate whether the Court’s char- acterization of that argument is entirely correct, but as ap- plied to the analysis I have just set out, the Court’s criti- cisms miss the mark.
A LITO
A
The major theme of this part of the Court’s opinion is that
Alabama’s argument, in effect, is that “
Gingles
must be
overruled.”
Ante
, at 25. But as I wrote at the beginning of
this opinion, I would decide these cases under the
Gingles
framework. We should recognize, however, that the
Gingles
framework is not the same thing as a statutory provision,
and it is a mistake to regard it as such.
National Pork Pro-
ducers Council
v.
Ross
,
A LITO “predominant” factor in legislative districting. “[W]hen
statutory language is susceptible of multiple interpreta-
tions, a court may shun an interpretation that raises seri-
ous constitutional doubts and instead may adopt an alter-
native that avoids those problems.”
Jennings Rodriguez
,
B
The Court’s subsidiary criticisms of Alabama’s argu- ments are likewise inapplicable to my analysis. The Court suggests that the “centerpiece” of Alabama’s argument re- garding the role race can permissibly play in a plaintiff ’s illustrative map seeks the imposition of “a new rule.” Ante , at 15, 22. But I would require only what our cases already demand: that all legislative districts be produced without giving race a “predominant” role. [4] ——————
[3] The second and third Gingles preconditions, which concern racially polarized voting, cannot contribute to avoiding a clash between §2 and the Constitution over racial predominance in the drawing of lines. Those preconditions do not concern the drawing of lines in plaintiffs’ maps, and in any event, because voting in much of the South is racially polarized, they are almost always satisfied anyway. Alabama does not contest that they are satisfied here.
[4] The Court appears to contend that it does not matter if race predom-
inated in the drawing of these maps because the maps
could have
been
drawn without race predominating. See
ante
, at 26–27, n. 7. But of
course, many policies
could be
selected for race-neutral reasons. They
nonetheless must be assessed under the relevant standard for inten-
tional reliance on race if their imposition was in fact motivated by race.
See,
e.g.
,
Hunter
v.
Underwood
,
A LITO The Court maintains that Alabama’s benchmark scheme would be unworkable because of the huge number of differ- ent race-neutral maps that could be drawn. As the Court notes, there are apparently numerous “competing metrics on the issue of compactness” alone, and each race-neutral computer program may assign different values to each tra- ditional districting criterion. Ante , at 27 (internal quotation marks omitted).
My analysis does not create such problems. If a §2 plain- tiff chooses to use a computer program to create an illustra- tive district, the court need ask only whether that program assigned race a predominant role.
The Court argues that Alabama’s focus on race-neutral
maps cannot be squared with a totality-of-the-
circumstances test because “Alabama suggests there is only
one ‘circumstance[ ]’ that matters—how the State’s map
stacks up relative to the benchmark” maps.
Ante
, at 18. My
analysis, however, simply follows the
Gingles
framework,
under which a court must first determine whether a §2
plaintiff has satisfied three “preconditions” before moving
on to consider the remainder of relevant circumstances. See
Growe
v.
Emison
,
IV
As noted, I would vacate and remand for the District Court to apply the correct understanding of Gingles in the first instance. Such a remand would require the District Court to determine whether the plaintiffs have shown that their illustrative maps did not give race a predominant role, and I will therefore comment briefly on my understanding of the relevant evidence in the record as it now stands. ——————
266 (1977);
Washington
v.
Davis
,
A LITO
A
In my view, there is strong evidence that race played a
predominant role in the production of the plaintiffs’ illus-
trative maps and that it is most unlikely that a map with
more than one majority-black district could be created with-
out giving race such a role. An expert hired by the
Milligan
plaintiffs, Dr. Kosuke Imai, used a computer algorithm to
create 30,000 potential maps, none of which contained two
majority-black districts. See 2 App. 571–572; Supp. App.
59, 72. In fact, in 20,000 of those simulations, Dr. Imai in-
tentionally created one majority-minority district, and yet
even with one majority-minority district guaranteed as a
baseline, none of those 20,000 attempts produced a second
one. See
Similarly, Dr. Moon Duchin, another expert hired by the Milligan plaintiffs, opined that “it is hard to draw two majority-black districts by accident.” 2 App. 714. Dr. Duchin also referred to a study where she generated two million maps of potential district configurations in Ala- bama, none of which contained a second majority-minority district. Id. , at 710. And the first team of trained mapmak- ers that plaintiff Milligan consulted was literally unable to draw a two-majority-black-district map, even when they tried. Id. , at 511–512. Milligan concluded at the time that the feat was impossible. , at 512.
The majority quibbles about the strength of this evidence, protesting that Dr. Imai’s studies failed to include as con- trols certain redistricting criteria and that Dr. Duchin’s two-million-map study was based on 2010 census data, see ante , at 26–27, and nn. 6–7, but this is unconvincing for sev- eral reasons. It is plaintiffs’ burden to produce evidence and satisfy the Gingles preconditions, so if their experts’ maps were deficient, that is no strike against Alabama. And the racial demographics of the State changed little be- tween 2010 and 2020, Supp. App. 82, which is presumably why Dr. Duchin herself raised the older study in answering
A LITO questions about her work in this litigation, see
The Court suggests that little can be inferred from Dr. Duchin’s two-million-map study because two million maps are not that many in comparison to the “trillion trillion” maps that are possible. See ante , at 28–29, and n. 9. In making this argument, the Court relies entirely on an ami- cus brief submitted by three computational redistricting ex- perts in support of the appellees. See Brief for Computa- tional Redistricting Experts 2, 6, n. 7. These experts’ argument concerns a complicated statistical issue, and I think it is unwise for the Court to make their argument part of our case law based solely on this brief. By the time this amicus brief was submitted, the appellants had already filed their main brief, and it was too late for any experts with contrary views to submit an amicus brief in support of appellants. Computer simulations are widely used today to make predictions about many important matters, and I would not place stringent limits on their use in VRA litiga- tion without being quite sure of our ground. If the cases were remanded, the parties could take up this issue if they wished and call experts to support their positions on the ex- tent to which the two million maps in the study are or can be probative of the full universe of maps.
In sum, based on my understanding of the current record, I am doubtful that the plaintiffs could get by the first Gin- gles precondition, but I would let the District Court sort this matter out on remand.
B
Despite the strong evidence that two majority-minority districts cannot be drawn without singular emphasis on race, a plurality nonetheless concludes that race did not predominate in the drawing of the plaintiffs’ illustrative
A LITO maps. See
ante
, at 22–25. Their conclusion, however, rests
on a faulty view of what non-predominance means.
The plurality’s position seems to be that race does not
predominate in the creation of a districting map so long as
the map does not violate other traditional districting crite-
ria such as compactness, contiguity, equally populated dis-
tricts, minimizing county splits, etc.
Ibid
. But this conclu-
sion is irreconcilable with our cases. In
Miller
, for instance,
we acknowledged that the particular district at issue was
not “shape[d] . . . bizarre[ly] on its face,” but we nonetheless
held that race predominated because of the legislature’s
“overriding desire to assign black populations” in a way
that would create an additional “majority-black district.”
Later cases drove home the point that conformity with
traditional districting principles does not necessarily mean
that a district was created without giving race a predomi-
nant role. In
Cooper
, we held that once it was shown that
race was “ ‘the overriding reason’ ” for the selection of a par-
ticular map, “a further showing of ‘inconsistency between
the enacted plan and traditional redistricting criteria’ is un-
necessary to a finding of racial predominance.” 581 U. S.,
at 301, n. 3 (quoting
Bethune-Hill
,
A LITO precedents in another way. We have been sensitive to the
gravity of “ ‘trapp[ing]’ ” States “ ‘between the competing
hazards of liability’ ” imposed by the Constitution and the
VRA. , at 196 (quoting
Vera
, 517 U. S., at 977). The
VRA’s demand that States not unintentionally “dilute” the
votes of particular groups must be reconciled with the Con-
stitution’s demand that States generally avoid intentional
augmentation of the political power of any one racial group
(and thus the diminution of the power of other groups). The
plurality’s predominance analysis shreds that prudential
concern. If a private plaintiff can demonstrate §2 liability
based on the production of a map that the State has every
reason to believe it could not constitutionally draw, we have
left “state legislatures too little breathing room” and virtu-
ally guaranteed that they will be on the losing end of a fed-
eral court’s judgment.
Bethune-Hill
,
* * *
The Court’s treatment of Gingles is inconsistent with the text of §2, our precedents on racial predominance, and the fundamental principle that States are almost always pro- hibited from basing decisions on race. Today’s decision un- necessarily sets the VRA on a perilous and unfortunate path. I respectfully dissent.