Allen v. Milligan ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
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., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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 As originally enacted in 1965,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. Id., 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.
2 ALLEN v. MILLIGAN
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, 478 U. S. 30, and has for the last 37 years eval-
uated §2 claims using the Gingles framework. Gingles described the
“essence of a §2 claim” as when “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 minimize
or cancel out” minority voters’ “ability to elect their preferred candi-
dates.” Id., at 48. Such a risk is greatest “where minority and majority
Cite as: 599 U. S. ____ (2023) 3
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, 595 U. S. ___, ___ (per curiam). “Second, the mi-
nority group must be able to show that it is politically cohesive.” Gin-
gles, 478 U. S., at 51. And third, “the minority must be able to demon-
strate that the white majority votes sufficiently as a bloc to enable it
. . . to defeat the minority’s preferred candidate.” Ibid. A plaintiff who
demonstrates the three preconditions must then show, under the “to-
tality of circumstances,” that the challenged political process is not
“equally open” to minority voters. Id., at 45–46. The totality of cir-
cumstances inquiry recognizes that application of the Gingles factors
is fact dependent and requires courts to conduct “an intensely local
appraisal” of the electoral mechanism at issue, as well as a “searching
practical evaluation of the past and present reality.” Id., at 79. Con-
gress has not disturbed the Court’s understanding of §2 as Gingles con-
strued it nearly 40 years ago. Pp. 9–11.
(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
4 ALLEN v. MILLIGAN
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
Cite as: 599 U. S. ____ (2023) 5
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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, 556 U. S. 1, 16 (plurality opinion). Pp. 15–18.
(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,
509 U. S. 630, 633–634; Miller v. Johnson, 515 U. S. 900, 906; Bush v.
Vera, 517 U. S. 952, 957 (plurality opinion). In Shaw v. Reno, for ex-
ample, the Court considered the permissibility of a second majority-
minority district in North Carolina, which at the time had 12 seats in
the U. S. House of Representatives and a 20% black voting age popu-
lation. 509 U. S., at 633–634. Though North Carolina believed §2 re-
quired a second majority-minority district, the Court found North Car-
olina’s approach an impermissible racial gerrymander because the
State had “concentrated a dispersed minority population in a single
district by disregarding traditional districting principles such as com-
pactness, contiguity, and respect for political subdivisions.” Id., at 647.
The Court’s decisions in Bush and Shaw similarly declined to re-
quire additional majority-minority districts under §2 where those dis-
tricts did not satisfy traditional districting principles.
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
6 ALLEN v. MILLIGAN
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, 446 U. S. 156, 173, the VRA’s “ban on electoral changes
that are discriminatory in effect is an appropriate method of promoting
the purposes of the Fifteenth Amendment,” id., at 177. Alabama’s con-
tention that the Fifteenth Amendment does not authorize race-based
redistricting as a remedy for §2 violations similarly fails. The Court is
not persuaded by Alabama’s arguments that §2 as interpreted in Gin-
gles exceeds the remedial authority of Congress.
The Court’s opinion does not diminish or disregard the concern that
Cite as: 599 U. S. ____ (2023) 7
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, 582 F. Supp. 3d 924, and 21–1087, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, except as to Part
III–B–1. SOTOMAYOR, KAGAN, and JACKSON, JJ., joined that opinion in
full, and KAVANAUGH, J., joined except for Part III–B–1. KAVANAUGH, J.,
filed an opinion concurring in all but Part III–B–1. THOMAS, J., filed a
dissenting opinion, in which GORSUCH, J., joined, in which BARRETT, J.,
joined as to Parts II and III, and in which ALITO, J., joined as to Parts II–
A and II–B. ALITO, J., filed a dissenting opinion, in which GORSUCH, J.,
joined.
Cite as: 599 U. S. ____ (2023) 1
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 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]
CHIEF JUSTICE ROBERTS 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. 595 U. S. ___ (2022). After conducting that review,
we now affirm.
——————
*JUSTICE KAVANAUGH joins all but Part III–B–1 of this opinion.
2 ALLEN v. MILLIGAN
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, 557 U. S. 193, 220–221 (2009) (THOMAS, J., concur-
ring in judgment in part and dissenting in part). Congress
stood up to little of it; “[t]he first century of congressional
enforcement of the [Fifteenth] Amendment . . . can only be
regarded as a failure.” Id., at 197 (majority opinion).
That changed in 1965. Spurred by the Civil Rights move-
ment, Congress enacted and President Johnson signed into
law the Voting Rights Act. 79 Stat. 437, as amended, 52
U. S. C. §10301 et seq. The Act “create[d] stringent new
remedies for voting discrimination,” attempting to forever
“banish the blight of racial discrimination in voting.” Kat-
zenbach, 383 U. S., at 308. By 1981, in only sixteen years’
time, many considered the VRA “the most successful civil
rights statute in the history of the Nation.” S. Rep. No. 97–
417, p. 111 (1982) (Senate Report).
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, 594 U. S. ___,
___ (2021) (slip op., at 3). 1 Our leading case on §2 at the
——————
1 As originally enacted, §2 provided that “[n]o voting qualification or
Cite as: 599 U. S. ____ (2023) 3
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. 446 U. S. 55 (1980). The commission
had three seats, black voters comprised one-third of the
City’s population, but no black-preferred candidate had
ever won election.
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.” Id., 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.).
4 ALLEN v. MILLIGAN
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
Cite as: 599 U. S. ____ (2023) 5
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, 412 U. S. 755(1973), which many in Congress believed would allow
courts to consider effects but avoid proportionality. The
standard for liability in voting cases, White explained, was
whether “the political processes leading to nomination and
election were not equally open to participation by the group
in question—[in] that its members had less opportunity
than did other residents in the district to participate in the
political processes and to elect legislators of their choice.”
Id., at 766.
The Dole compromise won bipartisan support and, on
June 18, the Senate passed the 1982 amendments by an
overwhelming margin, 85–8. Eleven days later, President
Reagan signed the Act into law. The amended §2 reads as
follows:
“(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,
6 ALLEN v. MILLIGAN
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, 785 F. Supp. 1491, 1493 (SD Ala.). The law-
suit produced a majority-black district in Alabama for the
first time in decades. Id., at 1499. And that fall, Birming-
ham lawyer Earl Hillard became the first black Representa-
tive from Alabama since 1877. 582 F. Supp. 3d, at 947.
Alabama’s congressional map has “remained remarkably
similar” after Wesch. Brief for Appellants in No. 21–1086
etc., p. 9 (Brief for Alabama). The map contains seven con-
gressional districts, each with a single representative. See
Supp. App. 205–211; 582 F. Supp. 3d, at 951. District 1 en-
compasses the Gulf Coast region in the southwest; District
2—known as the Wiregrass region—occupies the southeast;
District 3 covers the eastern-central part of the State; Dis-
tricts 4 and 5 stretch width-wise across the north, with the
Cite as: 599 U. S. ____ (2023) 7
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 1 App. 86. A group of
plaintiffs led by Alabama legislator Bobby Singleton sued
the State, arguing that the existing congressional map was
malapportioned and racially gerrymandered in violation of
the Equal Protection Clause. 582 F. Supp. 3d, at 938–939.
While litigation was proceeding, the Alabama Legislature’s
Committee on Reapportionment began creating a new dis-
tricting map. Ibid. Although the prior decade’s population
growth did not change the number of seats that Alabama
would receive in the House, the growth had been unevenly
distributed across the State, and the existing map was thus
out of date.
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. 582 F. Supp. 3d, at 1035–1036.
They also encouraged, as a secondary matter, avoiding in-
cumbent pairings, respecting communities of interest, min-
imizing the number of counties in each district, and pre-
serving cores of existing districts. Id., at 1036–1037.
The resulting map Hinaman drew largely resembled the
2011 map, again producing only one district in which black
voters constituted a majority of the voting age population.
8 ALLEN v. MILLIGAN
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. 582 F. Supp. 3d, at 934–
935. A preliminary injunction hearing began on January 4,
2022, and concluded on January 12. Id., at 943. In that
time, the three-judge District Court received live testimony
from 17 witnesses, reviewed more than 1000 pages of brief-
ing and upwards of 350 exhibits, and considered arguments
from the 43 different lawyers who had appeared in the liti-
gation. Id., at 935–936. After reviewing that extensive rec-
ord, the Court concluded in a 227-page opinion that the
question whether HB1 likely violated §2 was not “a close
one.” It did. Id., at 1026. The Court thus preliminarily
enjoined Alabama from using HB1 in forthcoming elections.
Cite as: 599 U. S. ____ (2023) 9
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. 595 U. S. ___ (2022).
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.” Id., 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 582 F. Supp. 3d, at 942–943, and n. 4. Any
reference to the “District Court” in this opinion applies to the Caster
Court as well as to the three-judge Court.
10 ALLEN v. MILLIGAN
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, 478 U. S., at 46–51). A dis-
trict will be reasonably configured, our cases explain, if it
comports with traditional districting criteria, such as being
contiguous and reasonably compact. See Alabama Legisla-
tive Black Caucus v. Alabama, 575 U. S. 254, 272 (2015).
“Second, the minority group must be able to show that it is
politically cohesive.” Gingles, 478 U. S., at 51. And third,
“the minority must be able to demonstrate that the white
majority votes sufficiently as a bloc to enable it . . . to defeat
the minority’s preferred candidate.” Ibid. Finally, a plain-
tiff who demonstrates the three preconditions must also
show, under the “totality of circumstances,” that the politi-
cal process is not “equally open” to minority voters. Id., at
45–46; see also id., at 36–38 (identifying several factors rel-
evant to the totality of circumstances inquiry, including
“the extent of any history of official discrimination in the
state . . . that touched the right of the members of the mi-
nority group to register, to vote, or otherwise to participate
in the democratic process”).
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, 507 U. S. 25, 40
(1993). The second, concerning the political cohesiveness of
the minority group, shows that a representative of its choice
Cite as: 599 U. S. ____ (2023) 11
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.” 478 U. S., at 79. Before courts can find
a violation of §2, therefore, they must conduct “an intensely
local appraisal” of the electoral mechanism at issue, as well
as a “searching practical evaluation of the ‘past and present
reality.’ ” Ibid.
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, 507 U. S. 146 (1993) (Ohio); Growe, 507 U. S., at 25(Minnesota); Johnson v. De Grandy, 512 U. S. 997 (1994)
(Florida); Holder v. Hall, 512 U. S. 874 (1994) (Georgia);
Abrams v. Johnson, 521 U. S. 74 (1997) (Georgia); League
of United Latin American Citizens v. Perry, 548 U. S. 399,
423 (2006) (LULAC) (Texas); Bartlett v. Strickland, 556
U. S. 1 (2009) (plurality opinion) (North Carolina); Cooper
v. Harris, 581 U. S. 285 (2017) (North Carolina); Abbott v.
Perez, 585 U. S. ___ (2018) (Texas); Wisconsin Legislature,
595 U. S. ___ (Wisconsin).
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–
12 ALLEN v. MILLIGAN
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. 582 F. Supp. 3d, at 1009.
A map offered by another of plaintiffs’ experts, Bill Cooper,
produced districts roughly as compact as the existing plan.
Ibid. And none of plaintiffs’ maps contained any “tentacles,
appendages, bizarre shapes, or any other obvious irregular-
ities that would make it difficult to find” them sufficiently
compact. Id., at 1011. Plaintiffs’ maps also satisfied other
traditional districting criteria. They contained equal popu-
lations, were contiguous, and respected existing political
subdivisions, such as counties, cities, and towns. Id., at
1011, 1016. Indeed, some of plaintiffs’ proposed maps split
the same number of county lines as (or even fewer county
lines than) the State’s map. Id., at 1011–1012. We agree
with the District Court, therefore, that plaintiffs’ illustra-
tive maps “strongly suggest[ed] that Black voters in Ala-
bama” could constitute a majority in a second, reasonably
configured, district. Id., at 1010.
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
Cite as: 599 U. S. ____ (2023) 13
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.” Id.,at 1012–1013; see also 1 App. 299–304. The District Court
concluded—correctly, under our precedent—that it did not
have to conduct a “beauty contest[ ]” between plaintiffs’
maps and the State’s. There would be a split community of
interest in both. 582 F. Supp. 3d, at 1012 (quoting Bush v.
Vera, 517 U. S. 952, 977–978 (1996) (plurality opinion)).
The State also makes a related argument based on “core
retention”—a term that refers to the proportion of districts
that remain when a State transitions from one districting
plan to another. See, e.g., Brief for Alabama 25, 61. Here,
by largely mirroring Alabama’s 2011 districting plan, HB1
performs well on the core retention metric. Plaintiffs’ illus-
trative plans, by contrast, naturally fare worse because
they change where the 2011 district lines were drawn. See
14 ALLEN v. MILLIGAN
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.” Id., at 1018–1024.
We see no reason to disturb the District Court’s careful
factual findings, which are subject to clear error review and
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
have gone unchallenged by Alabama in any event. See
Cooper, 581 U. S., at 309. Nor is there a basis to upset the
District Court’s legal conclusions. The Court faithfully ap-
plied our precedents and correctly determined that, under
existing law, HB1 violated §2.
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.
16 ALLEN v. MILLIGAN
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.” Id., 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
1
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
Cite as: 599 U. S. ____ (2023) 17
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, 501 U. S. 380, 403–404
(1991). And we have explained that “[i]t is patently clear
that Congress has used the words ‘on account of race or
color’ in the Act to mean ‘with respect to’ race or color, and
not to connote any required purpose of racial discrimina-
tion.” Gingles, 478 U. S., at 71, n. 34 (plurality opinion)
(some alterations omitted). Individuals thus lack an equal
opportunity to participate in the political process when a
State’s electoral structure operates in a manner that “min-
imize[s] or cancel[s] out the[ir] voting strength.” Id., at 47.
That occurs where an individual is disabled from “en-
ter[ing] into the political process in a reliable and meaning-
ful manner” “in the light of past and present reality, politi-
cal and otherwise.” White, 412 U. S., at 767, 770. A district
is not equally open, in other words, when minority voters
face—unlike their majority peers—bloc voting along racial
lines, arising against the backdrop of substantial racial dis-
crimination within the State, that renders a minority vote
unequal to a vote by a nonminority voter.
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
18 ALLEN v. MILLIGAN
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, 512 U. S., at 1018 (“An in-
flexible rule would run counter to the textual command of
§2, that the presence or absence of a violation be assessed
‘based on the totality of circumstances.’ ”). 3
2
Alabama also argues that the race-neutral benchmark is
required because our existing §2 jurisprudence inevitably
demands racial proportionality in districting, contrary to
the last sentence of §2(b). But properly applied, the Gingles
framework itself imposes meaningful constraints on pro-
——————
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
THOMAS, J.). That is not such a bad definition of stare decisis.
Cite as: 599 U. S. ____ (2023) 19
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.
509 U. S. 630, 633–634 (1993). The second majority-minor-
ity district North Carolina drew was “160 miles long and,
for much of its length, no wider than the [interstate] corri-
dor.” Id., at 635. The district wound “in snakelike fashion
through tobacco country, financial centers, and manufac-
turing areas until it gobble[d] in enough enclaves of black
neighborhoods.” Id., at 635–636. Indeed, the district was
drawn so imaginatively that one state legislator remarked:
“[I]f you drove down the interstate with both car doors open,
you’d kill most of the people in the district.” Id., at 636.
Though North Carolina believed the additional district
was required by §2, we rejected that conclusion, finding in-
stead that those challenging the map stated a claim of im-
permissible racial gerrymandering under the Equal Protec-
tion Clause. Id., at 655, 658. In so holding, we relied on the
fact that the proposed district was not reasonably compact.
Id., at 647. North Carolina had “concentrated a dispersed
minority population in a single district by disregarding tra-
ditional districting principles such as compactness, contigu-
ity, and respect for political subdivisions.” Ibid. (emphasis
added). And “[a] reapportionment plan that includes in one
district individuals who belong to the same race, but who
are otherwise separated by geographical and political
boundaries,” we said, raised serious constitutional con-
cerns. Ibid. (emphasis added).
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. 515 U. S. 900, 906,
910–911. At the time, Georgia’s black voting age population
20 ALLEN v. MILLIGAN
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.” 515 U. S., at 908. “Ge-
ographically,” we said of the map, “it is a monstrosity.” Id.,
at 909.
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. 517 U. S., at 957. Though the districts brought the
State closer to proportional representation, we nevertheless
held that they constituted racial gerrymanders in violation
of the Fourteenth Amendment. That was because the dis-
tricts had “no integrity in terms of traditional, neutral re-
districting criteria.” Id., at 960. One of the majority-black
districts consisted “of narrow and bizarrely shaped tenta-
cles.” Id., at 965. The proposed majority-Hispanic district
resembled “a sacred Mayan bird” with “[s]pindly legs
reach[ing] south” and a “plumed head ris[ing] northward.”
Id., at 974.
The point of all this is a simple one. Forcing proportional
representation is unlawful and inconsistent with this
Court’s approach to implementing §2. The numbers bear
the point out well. At the congressional level, the fraction
of districts in which black-preferred candidates are likely to
win “is currently below the Black share of the eligible voter
population in every state but three.” Brief for Professors
Jowei Chen et al. as Amici Curiae 3 (Chen Brief ). Only one
Cite as: 599 U. S. ____ (2023) 21
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. Id., at 15–
16 (collecting cases). The same has been true of recent liti-
gation in this Court. See Abbott, 585 U. S., at ___–___ (slip
op., at 33–34) (finding a Texas district did not violate §2 be-
cause “the geography and demographics of south and west
Texas do not permit the creation of any more than the seven
Latino . . . districts that exist under the current plan”). 4
——————
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 THOMAS, 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
THOMAS, J.).
22 ALLEN v. MILLIGAN
Opinion
Opinion of of the Court
ROBERTS , C. J.
Reapportionment, we have repeatedly observed, “is pri-
marily the duty and responsibility of the State[s],” not the
federal courts. Id., 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.
1
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
Cite as: 599 U. S. ____ (2023) 23
Opinion
Opinion of of the Court
ROBERTS , C. J.
is usually not. That is because “[r]edistricting legislatures
will . . . almost always be aware of racial demographics,”
Miller, 515 U. S., at 916, but such “race consciousness does
not lead inevitably to impermissible race discrimination,”
Shaw, 509 U. S., at 646. Section 2 itself “demands consid-
eration of race.” Abbott, 581 U. S., at ___ (slip op., at 4).
The question whether additional majority-minority dis-
tricts can be drawn, after all, involves a “quintessentially
race-conscious calculus.” De Grandy, 512 U. S., at 1020.
At the same time, however, race may not be “the predom-
inant factor in drawing district lines unless [there is] a com-
pelling reason.” Cooper, 581 U. S., at 291. Race predomi-
nates in the drawing of district lines, our cases explain,
when “race-neutral considerations [come] into play only af-
ter the race-based decision had been made.” Bethune-Hill
v. Virginia State Bd. of Elections, 580 U. S. 178, 189 (2017)
(internal quotation marks omitted). That may occur where
“race for its own sake is the overriding reason for choosing
one map over others.” Id., at 190.
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 2 App. 591–592. Cooper testified that while it
was necessary for him to consider race, he also took several
other factors into account, such as compactness, contiguity,
and population equality. Ibid. Cooper testified that he gave
all these factors “equal weighting.” Id., at 594. And when
asked squarely whether race predominated in his develop-
ment of the illustrative plans, Cooper responded: “No. It
was a consideration. This is a Section 2 lawsuit, after all.
But it did not predominate or dominate.” Id., at 595.
The District Court agreed. It found “Cooper’s testimony
highly credible” and commended Cooper for “work[ing] hard
to give ‘equal weight[ ]’ to all traditional redistricting crite-
ria.” 582 F. Supp. 3d, at 1005–1006; see also id., at 978–
24 ALLEN v. MILLIGAN
Opinion
Opinion of of the Court
ROBERTS , C. J.
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.” 2 App. 740. By his own admis-
sion, Bryan’s analysis of any race predominance in Cooper’s
maps “was pretty light.” Id., at 739. The District Court did
not err in finding that race did not predominate in Cooper’s
maps in light of the evidence before it. 5
The dissent contends that race nevertheless predomi-
nated in both Cooper’s and Duchin’s maps because they
were designed to hit “ ‘express racial target[s]’ ”—namely,
two “50%-plus majority-black districts.” Post, at 15 (opinion
of THOMAS, J.) (quoting Bethune-Hill, 580 U. S., at 192).
This argument fails in multiple ways. First, the dissent’s
reliance on Bethune-Hill is mistaken. In that case, this
Court was unwilling to conclude that a State’s maps were
produced in a racially predominant manner. Instead, we
——————
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 THOMAS, J.) (quoting 2 App. 601). But Cooper testified
that he was “aware that the minority population in and of itself can be a
community of interest.” Id., at 601 (emphasis added). Cooper then ex-
plained that the relevant community of interest here—the Black Belt—
was a “historical feature” of the State, not a demographic one. Ibid. (em-
phasis added). The Black Belt, he emphasized, was defined by its “his-
torical boundaries”—namely, the group of “rural counties plus Montgom-
ery County in the central part of the state.” Ibid. The District Court
treated the Black Belt as a community of interest for the same reason.
The dissent also protests that Cooper’s “plans prioritized race over
neutral districting criteria.” Post, at 14 (opinion of THOMAS, J.). But as
the District Court found, and as Alabama does not contest, Cooper’s
maps satisfied other traditional criteria, such as compactness, contigu-
ity, equal populations, and respect for political subdivisions.
Cite as: 599 U. S. ____ (2023) 25
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. JUSTICE THOMAS 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 JUSTICE THOMAS 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.
2
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. Id., at 44.
Alabama argues that is what should have happened here.
26 ALLEN v. MILLIGAN
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.” 2 App. 710. Of these two million “race-
blind” plans, none contained two majority-black districts
while many plans did not contain any. Ibid. Alabama also
points to a “race-neutral” computer simulation conducted
by another one of plaintiffs’ experts, Dr. Kosuke Imai,
which produced 30,000 potential maps. Brief for Alabama
55. As with Dr. Duchin’s maps, none of the maps that Dr.
Imai created contained two majority-black districts. See 2
App. 571–572. Alabama thus contends that because HB1
sufficiently “resembles” the “race-neutral” maps created by
Dr. Duchin and Dr. Imai—all of the maps lack two majority-
black districts—HB1 does not violate §2. Brief for Alabama
54.
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 2 App. 710; see also M. Duchin & D. Spencer, Models,
Race, and the Law, 130 Yale L. J. Forum 744, 763–764 (2021) (Duchin &
Spencer).
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
Cite as: 599 U. S. ____ (2023) 27
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, 515 U. S., at 916. Yet “[q]uantifying, meas-
uring, prioritizing, and reconciling these criteria” requires
map drawers to “make difficult, contestable choices.” Brief
for Computational Redistricting Experts as Amici Curiae 8
(Redistricting Brief ). And “[i]t is easy to imagine how dif-
ferent criteria could move the median map toward different
. . . distributions,” meaning that “the same map could be
[lawful] or not depending solely on what the mapmakers
said they set out to do.” Rucho v. Common Cause, 588 U. S.
___, ___–___ (2019) (slip op., at 27–28). For example, “the
scientific literature contains dozens of competing metrics”
on the issue of compactness. Redistricting Brief 8. Which
one of these metrics should be used? What happens when
——————
THOMAS, J.); see also post, at 15, n. 9, 16. In doing so, that dissent ignores
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 JUSTICE ALITO also ignore
Duchin’s testimony that “it is certainly possible” to draw the illustrative
maps she produced in a race-blind manner. 2 App. 713. In that way,
even the race-blind standard that the dissents urge would be satisfied
here. See post, at 21 (opinion of THOMAS, J.); post, at 6 (opinion of ALITO,
J.). So too could that standard be satisfied in every §2 case; after all, as
Duchin explained, any map produced in a deliberately race-predominant
manner would necessarily emerge at some point in a random, race-neu-
tral process. 2 App. 713. And although JUSTICE ALITO voices support for
an “old-school approach” to §2, even that approach cannot be squared
with his understanding of Gingles. Post, at 6. The very reason a plaintiff
adduces a map at the first step of Gingles is precisely because of its racial
composition—that is, because it creates an additional majority-minority
district that does not then exist.
28 ALLEN v. MILLIGAN
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.
Cite as: 599 U. S. ____ (2023) 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.
3
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, 501 U. S., at 403–404;
Shaw, 509 U. S., at 641; Reno v. Bossier Parish School Bd.,
520 U. S. 471, 481–482 (1997). Yet Alabama’s proposal is
30 ALLEN v. MILLIGAN
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., 429 U. S. 252, 265 (1977) (emphasis added);
see also Reno, 520 U. S., at 488. Alabama’s proposed ap-
proach stands in sharp contrast to all this, injecting into the
effects test of §2 an evidentiary standard that even our pur-
poseful discrimination cases eschew.
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 JUSTICE THOMAS’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.” Id., 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,
594 U. S., at ___, n. 5 (slip op., at 7, n. 5) (collecting cases).
Cite as: 599 U. S. ____ (2023) 31
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, 507 U. S., at 40. And we have even inval-
idated portions of a State’s single-district map under §2.
See LULAC, 548 U. S., at 427–429. 9 Alabama’s approach
would require “abandoning” this precedent, “overruling the
interpretation of §2” as set out in nearly a dozen of our
cases. Holder, 512 U. S., at 944 (opinion of THOMAS, J.).
We decline to take that step. Congress is undoubtedly
aware of our construing §2 to apply to districting chal-
lenges. It can change that if it likes. But until and unless
it does, statutory stare decisis counsels our staying the
course. See, e.g., Kimble v. Marvel Entertainment, LLC, 576
U. S. 446, 456 (2015). 10
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
THOMAS, J.). The Court has understood Growe much differently. See,
e.g., Abrams v. Johnson, 521 U. S. 74, 90 (1997) (“Our decision in [Gin-
gles] set out the basic framework for establishing a vote dilution claim
against at-large, multimembers districts; we have since extended the
framework to single-member districts.” (citing Growe, 507 U. S., at 40–
41)); Johnson v. De Grandy, 512 U. S. 997, 1006 (1994) (“In Growe, we
held that a claim of vote dilution in a single-member district requires
proof meeting the same three threshold conditions for a dilution chal-
lenge to a multimember district . . . .”); Bartlett v. Strickland, 556 U. S.
1, 12 (plurality opinion) (“The Court later held that the three Gingles
requirements apply equally in §2 cases involving single-member districts
. . . .” (citing Growe, 507 U. S., at 40–41)).
10 JUSTICE ALITO 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, 594 U. S., at ___ (slip op., at 22).
32 ALLEN v. MILLIGAN
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 THOMAS, 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 JUSTICE
THOMAS 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
THOMAS, J.). But history did not stop in 1960. As we have
explained, Congress adopted the amended §2 in response to
Cite as: 599 U. S. ____ (2023) 33
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 THOMAS, 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.” Id., 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
34 ALLEN v. MILLIGAN
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, 469 U. S. 1002 (1984). In light
of that precedent, including City of Rome, we are not per-
suaded by Alabama’s arguments that §2 as interpreted in
Gingles exceeds the remedial authority of Congress.
The concern that §2 may impermissibly elevate race in
the allocation of political power within the States is, of
course, not new. See, e.g., Shaw, 509 U. S., at 657 (“Racial
gerrymandering, even for remedial purposes, may balkan-
ize us into competing racial factions; it threatens to carry
us further from the goal of a political system in which race
no longer matters.”). Our opinion today does not diminish
or disregard these concerns. It simply holds that a faithful
application of our precedents and a fair reading of the rec-
ord before us do not bear them out here.
* * *
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.
Cite as: 599 U. S. ____ (2023) 1
KAVANAUGH, J., ,concurring
KAVANAUGH 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 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]
JUSTICE KAVANAUGH, 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
2 ALLEN v. MILLIGAN
KAVANAUGH, J., ,concurring
KAVANAUGH J., concurring
in part
Court has ordinarily left the updating or correction of
erroneous statutory precedents to the legislative process.”
Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH,
J., concurring in part) (slip op., at 4); see also, e.g., Kimble
v. Marvel Entertainment, LLC, 576 U. S. 446, 456 (2015);
Patterson v. McLean Credit Union, 491 U. S. 164, 172–173
(1989); Flood v. Kuhn, 407 U. S. 258, 283–284 (1972);
Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932)
(Brandeis, J., dissenting). 1
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, 581 U. S. 285, 301–302 (2017); Voinovich
v. Quilter, 507 U. S. 146, 153–154 (1993); ante, at 10–12,
18–22.
——————
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, 590 U. S., at ___,
n. 2 (opinion of KAVANAUGH, J.) (slip op., at 5, n. 2); see also, e.g., Kisor
v. Wilkie, 588 U. S. ___, ___–___ (2019) (GORSUCH, J., concurring in
judgment) (slip op., at 34–36); id., at ___–___ (KAVANAUGH, J., concurring
in judgment) (slip op., at 1–2); Leegin Creative Leather Products, Inc. v.
PSKS, Inc., 551 U. S. 877, 899–907 (2007); Arbaugh v. Y & H Corp., 546
U. S. 500, 510–516 (2006).
Cite as: 599 U. S. ____ (2023) 3
KAVANAUGH, J., ,concurring
KAVANAUGH 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, 585 U. S. ___, ___–___
(2018) (slip op., at 33–34); Bush v. Vera, 517 U. S. 952, 979
(1996) (plurality opinion); Gingles, 478 U. S., at 50; see also
Miller v. Johnson, 515 U. S. 900, 917–920 (1995); Shaw v.
Reno, 509 U. S. 630, 644–649 (1993); ante, at 18–22. 2
Third, Alabama argues that courts should rely on race-
blind computer simulations of redistricting maps to assess
whether a State’s plan abridges the right to vote on account
of race. It is true that computer simulations might help
detect the presence or absence of intentional
discrimination. For example, if all of the computer
simulations generated only one majority-minority district,
it might be difficult to say that a State had intentionally
discriminated on the basis of race by failing to draw a
second majority-minority district.
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 (THOMAS, J., dissenting); post, at 16 (ALITO,
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.
4 ALLEN v. MILLIGAN
KAVANAUGH, J., ,concurring
KAVANAUGH J., concurring
in part
and geographically compact minority populations. See
Abbott, 585 U. S., at ___ (slip op., at 4); Johnson v. De
Grandy, 512 U. S. 997, 1006–1007, 1020 (1994); Voinovich,
507 U. S., at 153–154; see generally Brnovich v. Democratic
National Committee, 594 U. S. ___, ___ (2021) (slip op., at
22) (“§2 does not demand proof of discriminatory purpose”);
Reno v. Bossier Parish School Bd., 520 U. S. 471, 482 (1997)
(Congress “clearly expressed its desire that §2 not have an
intent component”); Holder v. Hall, 512 U. S. 874, 923–924
(1994) (THOMAS, J., concurring in judgment) (§2 adopts a
“ ‘results’ test, rather than an ‘intent’ test”); Chisom v.
Roemer, 501 U. S. 380, 394, 404 (1991) (“proof of intent is
no longer required to prove a §2 violation” as “Congress
made clear that a violation of §2 could be established by
proof of discriminatory results alone”); Gingles, 478 U. S.,
at 71, n. 34 (plurality opinion) (§2 does not require
“ ‘purpose of racial discrimination’ ”).
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). JUSTICE
THOMAS 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.
Cite as: 599 U. S. ____ (2023) 1
THOMAS, J., dissenting
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]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
with whom JUSTICE BARRETT joins as to Parts II and III,
and with whom JUSTICE ALITO 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) (THOMAS, J., dissenting) (quoting
Holder v. Hall, 512 U. S. 874, 893 (1994) (THOMAS, J., con-
curring in judgment)). What distinguishes them is the un-
common clarity with which they lay bare the gulf between
our “color-blind” Constitution, Plessy v. Ferguson, 163 U. S.
537, 559 (1896) (Harlan, J., dissenting), and “the con-
sciously segregated districting system currently being con-
structed in the name of the Voting Rights Act.” Holder, 512
2 ALLEN v. MILLIGAN
THOMAS, J., dissenting
U. S., at 907 (opinion of THOMAS, J.). The question pre-
sented is whether §2 of the Act, as amended, requires the
State of Alabama to intentionally redraw its longstanding
congressional districts so that black voters can control a
number of seats roughly proportional to the black share of
the State’s population. Section 2 demands no such thing,
and, if it did, the Constitution would not permit it.
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 THOMAS, J.). “Thus, §2 cannot provide a
basis for invalidating any district.” Abbott v. Perez, 585
U. S. ___, ___ (2018) (THOMAS, 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,
Cite as: 599 U. S. ____ (2023) 3
THOMAS, J., dissenting
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, 594 U. S. ___, ___ (2021) (slip op., at
2) (describing the “notorious methods” by which, prior to the
——————
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).
4 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 548 U. S. 399, 447
(2006) (LULAC) (opinion of Kennedy, J.). And no party in
that case argued that the plaintiffs’ vote-dilution claim was
not cognizable. As for Growe v. Emison, 507 U. S. 25 (1993),
it held only that the threshold preconditions for challenging
——————
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, 507 U. S. 25, 40 (1993); cf. Holder v. Hall, 512
U. S. 874, 888 (1994) (O’Connor, J., concurring in part and concurring in
judgment) (explaining that single-member districts may provide the
benchmark when multimember or at-large systems are challenged, but
suggesting no benchmark for challenges to single-member districts), or
to the historical evolution of vote-dilution claims. Neither the case from
which the 1982 Congress drew §2(b)’s current operative language, see
White v. Regester, 412 U. S. 755, 766 (1973), nor the one it was respond-
ing to, Mobile v. Bolden, 446 U. S. 55 (1980), involved single-member dis-
tricts.
Cite as: 599 U. S. ____ (2023) 5
THOMAS, J., dissenting
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.” Id., 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
THOMAS, 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 JUSTICE KAVANAUGH’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, 587 U. S. ___,
___ (2019) (THOMAS, J., concurring) (slip op., at 14). Nor does that ap-
proach appear to have any historical foundation in judicial practice at
6 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 535 F. 3d 594, 598
(CA7 2008) (Easterbrook, C. J.). Neither the District Court
nor the majority has any defensible answer. The text of §2
and the logic of vote-dilution claims require a meaningfully
race-neutral benchmark, and no race-neutral benchmark
can justify the District Court’s finding of vote dilution in
these cases. The only benchmark that can justify it—and
the one that the District Court demonstrably applied—is
——————
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
KAVANAUGH, J.). The first is their profound tension with the Constitu-
tion’s hostility to racial classifications, a tension that JUSTICE
KAVANAUGH 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) (KAVANAUGH, 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.
Cite as: 599 U. S. ____ (2023) 7
THOMAS, J., dissenting
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, 588 U. S. ___, ___ (2019) (slip op., at 17).
Yet §2 vote-dilution cases require nothing less. If §2 pro-
hibited only intentional racial discrimination, there would
be no difficulty in finding a clear and workable rule of deci-
sion. But the “results test” that Congress wrote into §2 to
supersede Mobile v. Bolden, 446 U. S. 55 (1980), eschews
intent as the criterion of liability. See Bossier Parish School
Bd., 520 U. S., at 482. Accordingly, a §2 vote-dilution claim
does not simply “as[k] . . . for the elimination of a racial clas-
sification.” Rucho, 588 U. S., at ___ (slip op., at 21). It asks,
instead, “for a fair share of political power and influence,
with all the justiciability conundrums that entails.” Ibid.
Nevertheless, if §2 applies to single-member districts, we
must accept that some “objective and workable standard for
choosing a reasonable benchmark” exists; otherwise, single-
member districts “cannot be challenged as dilutive under
8 ALLEN v. MILLIGAN
THOMAS, J., dissenting
§2.” Holder, 512 U. S., at 881 (plurality opinion).
Given the diverse circumstances of different jurisdic-
tions, it would be fanciful to expect a one-size-fits-all defi-
nition of the appropriate benchmark. Cf. Thornburg v.
Gingles, 478 U. S. 30, 79 (1986) (explaining that the vote-
dilution inquiry “is peculiarly dependent upon the facts of
each case and requires an intensely local appraisal” (cita-
tion and internal quotation marks omitted)). One overrid-
ing principle, however, should be obvious. A proper district-
ing benchmark must be race neutral: It must not assume,
a priori, that an acceptable plan should include any partic-
ular number or proportion of minority-controlled districts.
I begin with §2’s text. As relevant here, §2(a) prohibits a
State from “impos[ing] or appl[ying]” any electoral rule “in
a manner which results in a denial or abridgement of the
right . . . to vote on account of race or color.” §10301(a).
Section 2(b) then provides that §2(a) is violated
“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),
Cite as: 599 U. S. ____ (2023) 9
THOMAS, J., dissenting
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.
Id., 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.
10 ALLEN v. MILLIGAN
THOMAS, J., dissenting
regime or the text’s disclaimer of a right to proportional rep-
resentation. 594 U. S., at ___, and n. 14 (slip op., at 22, and
n. 14).
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) (THOMAS, 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, 515 U. S. 900, 911 (1995) (cita-
tions omitted). “[D]istricting maps that sort voters on the
basis of race ‘ “are by their very nature odious.” ’ ” Wisconsin
Legislature v. Wisconsin Elections Comm’n, 595 U. S. ___,
___ (2022) (per curiam) (slip op., at 2) (quoting Shaw v.
Reno, 509 U. S. 630, 643 (1993) (Shaw I)). Accordingly, our
precedents apply strict scrutiny whenever race was “the
predominant factor motivating [the placement of] a signifi-
cant number of voters within or without a particular dis-
trict,” Miller, 515 U. S., at 916, or, put another way, when-
ever “[r]ace was the criterion that . . . could not be
compromised” in a district’s formation. Shaw v. Hunt, 517
U. S. 899, 907 (1996) (Shaw II).
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, 509 U. S., at 657, our cases have
long recognized the need to interpret §2 to avoid “unneces-
sarily infus[ing] race into virtually every redistricting”
plan. LULAC, 548 U. S., at 446 (opinion of Kennedy, J.);
accord, Bartlett v. Strickland, 556 U. S. 1, 21 (2009) (plural-
ity opinion). Plainly, however, that “infusion” is the inevi-
table result of any race-based benchmark. Any interpreta-
tion of §2 that permits courts to condemn enacted
Cite as: 599 U. S. ____ (2023) 11
THOMAS, J., dissenting
districting plans as dilutive relative to a nonneutral bench-
mark “would result in a substantial increase in the number
of mandatory districts drawn with race as ‘the predominant
factor motivating the legislature’s decision,’ ” thus “ ‘raising
serious constitutional questions.’ ” Id., at 21–22 (first quot-
ing Miller, 515 U. S., at 916, then quoting LULAC, 548
U. S., at 446). To avoid setting §2 on a collision course with
the Constitution, courts must apply a race-neutral bench-
mark in assessing any claim that a districting plan unlaw-
fully dilutes a racial minority’s voting strength.
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 THOMAS, 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, 504 U. S. 902 (1992). At the
time, the Justice Department’s approach to preclearance under §5 of the
Act followed the “so-called ‘max-black’ policy,” which “required States,
including Alabama, to create supermajority-black voting districts or face
denial of preclearance.” Alabama Legislative Black Caucus v. Alabama,
575 U. S. 254, 298 (2015) (THOMAS, J., dissenting). Although Wesch was
a §2 case and the court-imposed plan that resulted was not subject to
preclearance, see 785 F. Supp., at 1499–1500, there can be little doubt
that a similar ethos dominated that litigation, in which all parties stip-
ulated to the desirability of a 65%-plus majority-black district. See id.,at 1498–1499. To satisfy that dubious need, the Wesch court aggressively
adjusted the northeast and southeast corners of the previous District 7.
In the northeast, where District 7 once encompassed all of Tuscaloosa
County and the more or less rectangular portion of Jefferson County not
included in District 6, the 1992 plan drew a long, thin “finger” that trav-
ersed the southeastern third of Tuscaloosa County to reach deep into the
12 ALLEN v. MILLIGAN
THOMAS, J., dissenting
two majority-minority congressional districts”—roughly
proportional control. 1 App. 135 (emphasis added); see also
id., at 314 (“Plaintiffs seek an order . . . ordering a congres-
sional redistricting plan that includes two majority-Black
congressional districts”).
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,
785 F. Supp., at 1569. In the southeast, District 7 swallowed a jigsaw-
shaped portion of Montgomery County, the residents of which were
80.18% black. Id., at 1575. Three years later, in Miller v. Johnson, 515
U. S. 900, 923–927 (1995), we rejected the “max-black” policy as unwar-
ranted by §5 and inconsistent with the Constitution. But “much damage
to the States’ congressional and legislative district maps had already
been done,” including in Alabama. Alabama Legislative Black Caucus,
575 U. S., at 299 (THOMAS, J., dissenting).
Cite as: 599 U. S. ____ (2023) 13
THOMAS, J., dissenting
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.
14 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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. 2 App. 634;
see also id., at 665, 678. Only “after” those two “nonnego-
tiable[s]” were satisfied did Dr. Duchin then give lower pri-
ority to “contiguity” and “compactness.” Id., at 634. The
architect of the other seven maps, William Cooper, consid-
ered “minority voting strengt[h]” a “traditional redistricting
principl[e]” in its own right, id., at 591, and treated “the mi-
nority population in and of itself ” as the paramount com-
munity of interest in his plans, id., at 601.
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. Id., 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
Cite as: 599 U. S. ____ (2023) 15
THOMAS, J., dissenting
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.” Id., at 714. 9
The plurality of Justices who join Part III–B–I of THE
CHIEF JUSTICE’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, 595 U. S., at ___ (slip op.,
at 3)—by drawing an illustrative map in which race was
predominant. See ante, at 25. That should be the end of
these cases, as the illustrative maps here are palpable ra-
cial gerrymanders. The plaintiffs’ experts clearly applied
“express racial target[s]” by setting out to create 50%-plus
majority-black districts in both Districts 2 and 7. Bethune-
Hill v. Virginia State Bd. of Elections, 580 U. S. 178, 192
(2017). And it is impossible to conceive of the State adopting
the illustrative maps without pursuing the same racially
motivated goals. Again, the maps’ key design features are:
(1) making District 2 majority-black by connecting black
——————
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.
16 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 515 U. S., at 916. The “stark splits
in the racial composition of populations moved into and out
of ” Districts 1 and 2 would make that obvious. Bethune-
Hill, 580 U. S., at 192. So would the manifest absence of
any nonracial justification for the new District 1. And so
would the State’s clear intent to ensure that both Districts
2 and 7 hit their preordained racial targets. See ibid. (not-
ing that “pursu[it of] a common redistricting policy toward
multiple districts” may show predominance). That the plan
delivered proportional control for a particular minority—a
statistical anomaly that over 2 million race-blind simula-
tions did not yield and 20,000 race-conscious simulations
did not even approximate—would be still further confirma-
tion.
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.”
515 U. S., at 912–913. 10
——————
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
Cite as: 599 U. S. ____ (2023) 17
THOMAS, J., dissenting
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).
Id., 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, 462 U. S. 725, 740 (1983); see also id., at 758(Stevens, J., concurring) (explaining that residents of a political unit “of-
ten develop a community of interest”). The plaintiffs’ maps, however,
necessarily would require the State to assign little weight to core reten-
tion with respect to other districts. There could then be no principled
race-neutral justification for prioritizing core retention only when it pre-
served an existing majority-black district, while discarding it when it
stood in the way of creating a new one.
11 The equal-population baseline for Alabama’s seven districts is
717,154 persons per district.
18 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 582 F. Supp. 3d 924, 1029–1030 (ND
Ala. 2022) (per curiam). This reasoning shows a profound
misunderstanding of our racial-gerrymandering prece-
dents. As explained above, what triggers strict scrutiny is
the intentional use of a racial classification in placing “a
significant number of voters within or without a particular
district.” Miller, 515 U. S., at 916. Thus, any plan whose
predominant purpose is to achieve a nonnegotiable, prede-
termined racial target in a nonnegotiable, predetermined
number of districts is a racial gerrymander subject to strict
scrutiny. The precise fraction used as the racial target, and
the number of districts it is applied to, are irrelevant.
Cite as: 599 U. S. ____ (2023) 19
THOMAS, J., dissenting
In affirming the District Court’s nonpredominance find-
ing, the plurality glosses over these plain legal errors, 12 and
it entirely ignores Dr. Duchin’s plans—presumably because
her own explanation of her method sounds too much like
textbook racial predominance. Compare 2 App. 634(“[A]fter . . . what I took to be nonnegotiable principles of
population balance and seeking two majority-black dis-
tricts, after that, I took contiguity as a requirement and
compactness as paramount” (emphasis added)) and id., at
635 (“I took . . . county integrity to take precedence over the
level of [black voting-age population] once that level was
past 50 percent” (emphasis added)), with Bethune-Hill, 580
U. S., at 189 (explaining that race predominates when it
“ ‘was the criterion that . . . could not be compromised,’ and
race-neutral considerations ‘came into play only after the
race-based decision had been made’ ” (quoting Shaw II, 517
U. S., at 907)), and Miller, 515 U. S., at 916 (explaining that
race predominates when “the [mapmaker] subordinated
traditional race-neutral districting principles . . . to racial
——————
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,
515 U. S., at 916 (“ ‘Discriminatory purpose implies more than intent as
volition or intent as awareness of consequences. It implies that the
decisionmaker selected or reaffirmed a particular course of action at
least in part “because of,” not merely “in spite of,” its adverse effects’ ”
(alterations and some internal quotation marks omitted)); accord, Shaw
I, 509 U. S. 630, 646 (1993). And our statements that §2 “demands con-
sideration of race,” Abbott v. Perez, 585 U. S. ___, ___ (2018) (slip op., at
4), and uses a “race-conscious calculus,” De Grandy, 512 U. S., at 1020,
did not imply that a State can ever purposefully sort voters on a race-
predominant basis without triggering strict scrutiny.
20 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 515 U. S., at 916. They could only ever
be drawn by a mapmaker whose predominant motive was
hitting the “express racial target” of two majority-black dis-
tricts. Bethune-Hill, 580 U. S., at 192. 13
The plurality endeavors in vain to blunt the force of this
obvious fact. See ante, at 24–25. Contrary to the plurality’s
apparent understanding, nothing in Bethune-Hill suggests
——————
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, 2 App. 591, and he frankly
acknowledged “reconfigur[ing]” the southern part of the State “to create
the second African-American majority district,” id., at 610. Further, his
conclusory statement that race did not “predominate” in his plans, id., at
595, must be interpreted in light of the rest of his testimony and the rec-
ord as a whole. Mr. Cooper recognized communities of interest as a tra-
ditional districting principle, but he applied that principle in a nakedly
race-focused manner, explaining that “the minority population in and of
itself ” was the community of interest that was “top of mind as [he] was
drawing the plan[s].” Id., at 601. As noted, he also testified that he con-
sidered “minority voting strengt[h]” to be a “traditional redistricting
principl[e]” in its own right. Id., at 591. His testimony therefore but-
tresses, rather than undermines, the conclusion already obvious from the
maps themselves: Only a mapmaker pursuing a fixed racial target would
produce them.
Cite as: 599 U. S. ____ (2023) 21
THOMAS, J., dissenting
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. Id., 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
22 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 548 U. S., at 433. But, in virtually
all jurisdictions, there are countless possible districting
schemes that could be considered reasonable in that sense.
The mere fact that a plaintiff ’s illustrative map is one of
them cannot justify making it the benchmark against which
other plans should be judged. Cf. Rucho, 588 U. S., at ___–
___ (slip op., at 19–20) (explaining the lack of judicially
manageable standards for evaluating the relative fairness
of different applications of traditional districting criteria).
That conceptual gap—between “reasonable” and “bench-
mark”—is highly relevant here. Suppose, for argument’s
sake, that Alabama reasonably could decide to create two
majority-black districts by (1) connecting Montgomery’s
black residents with Mobile’s black residents, (2) dividing
up the rural parts of the Black Belt between that district
and another district with its population core in the majority-
black parts of the Birmingham area, and (3) accepting the
extreme disruption to District 1 and the Gulf Coast that
this approach would require. The plaintiffs prefer that ap-
proach because it allows the creation of two majority-black
districts, which they think Alabama should have. But even
if that approach were reasonable, there is hardly any com-
pelling race-neutral reason to elevate such a plan to a
benchmark against which all other plans must be meas-
ured. Nothing in Alabama’s geography or demography
makes it clearly the best way, or even a particularly attrac-
tive way, to draw three of seven equally populous districts.
The State has obvious legitimate, race-neutral reasons to
prefer its own map—most notably, its interest in “preserv-
ing the cores of prior districts” and the Gulf Coast commu-
nity of interest in District 1. Karcher v. Daggett, 462 U. S.
725, 740 (1983). And even discounting those interests
Cite as: 599 U. S. ____ (2023) 23
THOMAS, J., dissenting
would not yield a race-neutral case for treating the plain-
tiffs’ approach as a suitable benchmark: Absent core reten-
tion, there is no apparent race-neutral reason to insist that
District 7 remain a majority-black district uniting Birming-
ham’s majority-black neighborhoods with majority-black
rural areas in the Black Belt.
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, 588 U. S., at ___ (KAGAN, J., dissent-
ing) (slip op., at 19), it is hard to see how the mere possibil-
ity of drawing two majority-black districts could show that
a one-district map diluted black Alabamians’ votes relative
to any appropriate benchmark. 14
——————
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.
24 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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.” 2 App. 709. Thus, all that those algorithmic results prove is that
it is possible to draw two majority-black districts in Alabama if one sets
out to do so, especially with the help of sophisticated mapmaking soft-
ware. What is still lacking is any justification for treating a two-major-
ity-black-district map as a proxy for the undiluted benchmark.
Cite as: 599 U. S. ____ (2023) 25
THOMAS, J., dissenting
settled, determinate legal principles. But it is widely
acknowledged that “Gingles and its progeny have engen-
dered considerable disagreement and uncertainty regard-
ing the nature and contours of a vote dilution claim,” with
commentators “noting the lack of any ‘authoritative resolu-
tion of the basic questions one would need to answer to
make sense of [§2’s] results test.’ ” Merrill v. Milligan, 595
U. S. ___, ___–___ (2022) (ROBERTS, C. J., dissenting from
grant of applications for stays) (slip op., at 1–2) (quoting C.
Elmendorf, Making Sense of Section 2: Of Biased Votes, Un-
constitutional Elections, and Common Law Statutes, 160 U.
Pa. L. Rev. 377, 389 (2012)). If there is any “area of law
notorious for its many unsolved puzzles,” this is it. J. Chen
& N. Stephanopoulos, The Race-Blind Future of Voting
Rights, 130 Yale L. J. 862, 871 (2021); see also Duchin &
Spencer 758 (“Vote dilution on the basis of group member-
ship is a crucial instance of the lack of a prescribed ideal”).
The source of this confusion is fundamental: Quite
simply, we have never succeeded in translating the Gingles
framework into an objective and workable method of iden-
tifying the undiluted benchmark. The second and third pre-
conditions are all but irrelevant to the task. They essen-
tially collapse into one question: Is voting racially polarized
such that minority-preferred candidates consistently lose to
majority-preferred ones? See Gingles, 478 U. S., at 51.
Even if the answer is yes, that tells a court nothing about
“how hard it ‘should’ be for minority voters to elect their
preferred candidates under an acceptable system.” Id., at
88 (O’Connor, J., concurring in judgment). Perhaps an ac-
ceptable system is one in which the minority simply cannot
elect its preferred candidates; it is, after all, a minority. Re-
jecting that outcome as “dilutive” requires a value judgment
relative to a benchmark that polarization alone cannot pro-
vide.
The first Gingles precondition is only marginally more
useful. True, the benchmark in a redistricting challenge
26 ALLEN v. MILLIGAN
THOMAS, J., dissenting
must be “a hypothetical, undiluted plan,” Bossier Parish
School Bd., 520 U. S., at 480, and the first precondition at
least requires plaintiffs to identify some hypothetical alter-
native plan. Yet that alternative plan need only be “reason-
ably configured,” and—as explained above—to say that a
plan is reasonable is a far cry from establishing an objective
standard of fairness.
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 THOMAS, 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-
Cite as: 599 U. S. ____ (2023) 27
THOMAS, J., dissenting
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.” Id., 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.
28 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 512 U. S., at 937 (opinion of THOMAS, J.). True, as
disussed above, that benchmark is impossible to square
with what the majority calls §2(b)’s “robust disclaimer
against proportionality,” ante, at 5, and it runs headlong
into grave constitutional problems. See Parents Involved in
Community Schools v. Seattle School Dist. No. 1, 551 U. S.
701, 730 (2007) (plurality opinion). Nonetheless, the intui-
tive pull of proportionality is undeniable. “Once one accepts
the proposition that the effectiveness of votes is measured
in terms of the control of seats, the core of any vote dilution
claim” “is inherently based on ratios between the numbers
of the minority in the population and the numbers of seats
controlled,” and there is no more logical ratio than direct
proportionality. Holder, 512 U. S., at 902 (opinion of
THOMAS, J.). Combine that intuitive appeal with the “lack
of any better alternative” identified in our case law to date,
id., at 937, and we should not be surprised to learn that
proportionality generally explains the results of §2 cases af-
ter the Gingles preconditions are satisfied. See E. Katz, M.
Aisenbrey, A. Baldwin, E. Cheuse, & A. Weisbrodt, Docu-
menting Discrimination in Voting: Judicial Findings Under
Section 2 of the Voting Rights Act Since 1982, 39 U. Mich.
J. L. Reform 643, 730–732 (2006) (surveying lower court
cases and finding a near-perfect correlation between pro-
portionality findings and liability results).
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
Cite as: 599 U. S. ____ (2023) 29
THOMAS, J., dissenting
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.” Id., 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.
30 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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
Cite as: 599 U. S. ____ (2023) 31
THOMAS, J., dissenting
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 v. Bossier
Parish School Bd., 520 U. S. 471, 480 (1997).
32 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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., 520 U. S., at 480; Holder, 512 U. S., at
881 (plurality opinion). Of course, I would be the last per-
son to deny that defining the undiluted benchmark is diffi-
cult. See id., at 892 (opinion of THOMAS, J.) (arguing that
it “immerse[s] the federal courts in a hopeless project of
weighing questions of political theory”). But the “myriad
considerations” and “[a]nswerless questions” the majority
frets about, ante, at 27, 29, are inherent in the very enter-
prise of applying §2 to single-member districts. Everything
the majority says about the difficulty of defining the undi-
luted benchmark with computer evidence applies with
equal or greater force to the task of defining it without such
evidence. At their core, the majority’s workability concerns
are an isolated demand for rigor against the backdrop of a
legal regime that has long been “ ‘inherently standardless,’ ”
and must remain so until the Court either discovers a prin-
cipled and objective method of identifying the undiluted
benchmark, Holder, 512 U. S., at 885 (plurality opinion), or
abandons this enterprise altogether, see id., at 945 (opinion
of THOMAS, J.).
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
Cite as: 599 U. S. ____ (2023) 33
THOMAS, J., dissenting
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, 512 U. S., at 899 (opinion of
THOMAS, J.). That is precisely the assumption that leads to the pro-
portional-control benchmark. See id., at 902, 937.
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). JUSTICE KAVANAUGH, similarly, defends
Gingles against the charge of “mandat[ing] a proportional number of
34 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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 THOMAS, 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.
Cite as: 599 U. S. ____ (2023) 35
THOMAS, J., dissenting
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, 556 U. S., at 21 (plural-
ity opinion) (quoting LULAC, 548 U. S., at 446 (opinion of
Kennedy, J.)). Today, however, by approving the plaintiffs’
racially gerrymandered maps as reasonably configured, re-
fusing to ground §2 vote-dilution claims in a race-neutral
benchmark, and affirming a vote-dilution finding that can
only be justified by a benchmark of proportional control, the
majority holds, in substance, that race belongs in virtually
every redistricting. It thus drives headlong into the very
constitutional problems that the Court has long sought to
avoid. The result of this collision is unmistakable: If the
District Court’s application of §2 was correct as a statutory
matter, §2 is unconstitutional as applied here.
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, 556 U. S., at 21–22 (plurality opinion).
At this point, it is necessary to confront directly one of the
more confused notions inhabiting our redistricting jurispru-
dence. In several cases, we have “assumed” that compli-
ance with §2 of the Voting Rights Act could be a compelling
state interest, before proceeding to reject race-predominant
36 ALLEN v. MILLIGAN
THOMAS, J., dissenting
plans or districts as insufficiently tailored to that asserted
interest. See, e.g., Wisconsin Legislature, 595 U. S., at ___
(slip op., at 3); Cooper v. Harris, 581 U. S. 285, 292 (2017);
Shaw II, 517 U. S., at 915; Miller, 515 U. S., at 921. But we
have never applied this assumption to uphold a districting
plan that would otherwise violate the Constitution, and the
slightest reflection on first principles should make clear
why it would be problematic to do so. 18 The Constitution is
supreme over statutes, not vice versa. Marbury v. Madison,
1 Cranch 137, 178 (1803). Therefore, if complying with a
federal statute would require a State to engage in unconsti-
tutional racial discrimination, the proper conclusion is not
that the statute excuses the State’s discrimination, but that
the statute is invalid.
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, 521 U. S. 507,
517–529 (1997). Because Congress’ prophylactic-
——————
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.” Id., at 193.
Cite as: 599 U. S. ____ (2023) 37
THOMAS, J., dissenting
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 Id., 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, 515 U. S., at 927.
Here, as with everything else in our vote-dilution juris-
prudence, the task of sound analysis is encumbered by the
lack of clear principles defining §2 liability in districting. It
is awkward to examine the “congruence” and “proportional-
ity” of a statutory rule whose very meaning exists in a per-
petual state of uncertainty. The majority makes clear, how-
ever, that the primary factual predicate of a vote-dilution
claim is “bloc voting along racial lines” that results in
majority-preferred candidates defeating minority-preferred
ones. Ante, at 17; accord, Gingles, 478 U. S., at 48 (“The
theoretical basis for [vote-dilution claims] is that where mi-
nority and majority voters consistently prefer different can-
didates, the majority, by virtue of its numerical superiority,
will regularly defeat the choices of minority voters”). And,
as I have shown, the remedial logic with which the District
Court’s construction of §2 addresses that “wrong” rests on a
proportional-control benchmark limited only by feasibility.
Thus, the relevant statutory rule may be approximately
stated as follows: If voting is racially polarized in a jurisdic-
tion, and if there exists any more or less reasonably config-
ured districting plan that would enable the minority group
to constitute a majority in a number of districts roughly pro-
portional to its share of the population, then the jurisdiction
——————
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, 521 U. S., at 518.
38 ALLEN v. MILLIGAN
THOMAS, J., dissenting
must ensure that its districting plan includes that number of
majority-minority districts “or something quite close.” 20 582
F. Supp. 3d, at 1033. Thus construed and applied, §2 is not
congruent and proportional to any provisions of the Recon-
struction Amendments.
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,
162 U. S. 565, 591 (1896) (Harlan, J.). They dictate “that
the Government must treat citizens as individuals, not as
simply components of a racial, religious, sexual or national
class.” Miller, 515 U. S., at 911 (internal quotation marks
omitted). These principles are why the Constitution pre-
sumptively forbids race-predominant districting, “even for
remedial purposes.” Shaw I, 509 U. S., at 657.
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,
478 U. S., at 48. Nor, finally, do the Amendments establish
a norm of proportional control of elected offices on the basis
of race. See Parents Involved, 551 U. S., at 730–731 (plu-
rality opinion); Shaw I, 509 U. S., at 657. And these notions
——————
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.
Cite as: 599 U. S. ____ (2023) 39
THOMAS, J., dissenting
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, 570 U. S., at 555. If it
could, it must be because Congress “identified a history and
pattern” of actual constitutional violations that, for some
reason, required extraordinary prophylactic remedies.
Garrett, 531 U. S., at 368. But the legislative record of the
1982 amendments is devoid of any showing that might jus-
tify §2’s blunt approximation of a “racial register for allo-
cating representation on the basis of race.” Holder, 512
U. S., at 908 (opinion of THOMAS, J.). To be sure, the Senate
Judiciary Committee Report that accompanied the 1982
amendment to the Voting Rights Act “listed many examples
of what the Committee took to be unconstitutional vote di-
lution.” Brnovich, 594 U. S., at ___ (slip op., at 6) (emphasis
added). But the Report also showed the Committee’s fun-
damental lack of “concern with whether” those examples re-
flected the “intentional” discrimination required “to raise a
constitutional issue.” Allen, 589 U. S., at ___ (slip op., at
15). The Committee’s “principal reason” for rejecting dis-
criminatory purpose was simply that it preferred an alter-
native legal standard; it thought Mobile’s intent test was
40 ALLEN v. MILLIGAN
THOMAS, J., dissenting
“the wrong question,” and that courts should instead ask
whether a State’s election laws offered minorities “a fair op-
portunity to participate” in the political process. S. Rep.
No. 97–417, p. 36.
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.” Id., 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, 383 U. S. 301, 355 (1966) (Black, J., con-
curring and dissenting)). In view of this “indiscriminate
scope,” “it simply cannot be said that ‘many of [the district-
ing plans] affected by the congressional enactment have a
significant likelihood of being unconstitutional.’ ” Florida
Prepaid Postsecondary Ed. Expense Bd. v. College Savings
Bank, 527 U. S. 627, 647 (1999) (quoting City of Boerne, 521
U. S., at 532).
Of course, under the logically unbounded totality-of-
Cite as: 599 U. S. ____ (2023) 41
THOMAS, J., dissenting
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, 517 U. S., at 909 (in-
ternal quotation marks omitted). To justify a statute tend-
ing toward the proportional allocation of political power by
race throughout the Nation, it cannot be enough that a
court can recite some indefinite quantum of discrimination
in the relevant jurisdiction. If it were, courts “could uphold
[race-based] remedies that are ageless in their reach into
the past, and timeless in their ability to affect the future.”
Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 276 (1986)
(plurality opinion). That logic “would effectively assure
that race will always be relevant in [redistricting], and that
the ultimate goal of eliminating entirely from governmental
decisionmaking such irrelevant factors as a human being’s
race will never be achieved.” Parents Involved, 551 U. S.,
at 730 (plurality opinion) (alteration and internal quotation
marks omitted).
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, 785 F. Supp. 1491, 1493, 1498
(SD Ala.). Accepting that stipulation, the court reworked
42 ALLEN v. MILLIGAN
THOMAS, J., dissenting
District 7 into an irregularly shaped supermajority-black
district—one that scooped up populous clusters of black vot-
ers in the disparate urban centers of Birmingham and
Montgomery to connect them across a swath of largely ma-
jority-black rural areas—without even “decid[ing] whether
the creation of a majority African-American district [was]
mandated by either §2 or the Constitution.” Id., at 1499;
see n. 7, supra. It did not occur to the court that the Con-
stitution might forbid such an extreme racial gerrymander,
as it quite obviously did. But, once District 7 had come into
being as a racial gerrymander thought necessary to satisfy
§2, it became an all-but-immovable fixture of Alabama’s
districting scheme.
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
Cite as: 599 U. S. ____ (2023) 43
THOMAS, J., dissenting
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, 512 U. S., at 905 (opinion of THOMAS, J.). We place
States in the impossible position of having to weigh just
how much racial sorting is necessary to avoid the “compet-
ing hazards” of violating §2 and violating the Constitution.
Abbott, 585 U. S., at ___ (slip op., at 4) (internal quotation
marks omitted). We have even put ourselves in the ridicu-
lous position of “assuming” that compliance with a statute
can excuse disobedience to the Constitution. Worst of all,
by making it clear that there are political dividends to be
gained in the discovery of new ways to sort voters along ra-
cial lines, we prolong immeasurably the day when the “sor-
did business” of “divvying us up by race” is no more.
LULAC, 548 U. S., at 511 (ROBERTS, C. J., concurring in
part, concurring in judgment in part, and dissenting in
part). To the extent §2 requires any of this, it is unconsti-
tutional.
The majority deflects this conclusion by appealing to two
of our older Voting Rights Act cases, City of Rome v. United
States, 446 U. S. 156 (1980), and South Carolina v. Katzen-
bach, 383 U. S. 301, that did not address §2 at all and, in-
deed, predate Congress’ adoption of the results test. Ante,
at 33–34. That maneuver is untenable. Katzenbach upheld
§5’s preclearance requirements, §4(b)’s original coverage
formula, and other related provisions aimed at “a small
number of States and political subdivisions” where “system-
atic resistance to the Fifteenth Amendment” had long been
44 ALLEN v. MILLIGAN
THOMAS, J., dissenting
flagrant. 383 U. S., at 328; see also id., at 315–317 (describ-
ing the limited issues presented). Fourteen years later, City
of Rome upheld the 1975 Act extending §5’s preclearance
provisions for another seven years. See 446 U. S., at 172–
173. The majority’s reliance on these cases to validate a
statutory rule not there at issue could make sense only if
we assessed the congruence and proportionality of the Vot-
ing Rights Act’s rules wholesale, without considering their
individual features, or if Katzenbach and City of Rome
meant that Congress has plenary power to enact whatever
rules it chooses to characterize as combating “discrimina-
tory . . . effect[s].” Ante, at 33 (internal quotation marks
omitted). Neither proposition makes any conceptual sense
or is consistent with our cases. See, e.g., Shelby County, 570
U. S., at 550–557 (holding the 2006 preclearance coverage
formula unconstitutional); Northwest Austin Municipal
Util. Dist. No. One v. Holder, 557 U. S. 193, 203 (2009) (em-
phasizing the distinctness of §§2 and 5); City of Boerne, 521
U. S., at 533 (discussing City of Rome as a paradigm case of
congruence-and-proportionality review of remedial legisla-
tion); Miller, 515 U. S., at 927 (stressing that construing §5
to require “that States engage in presumptively unconstitu-
tional race-based districting” would raise “troubling and
difficult constitutional questions,” notwithstanding City of
Rome).
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.” 446 U. S., at 177 (emphasis added; footnote
Cite as: 599 U. S. ____ (2023) 45
THOMAS, J., dissenting
omitted). The next section of City of Rome then separately
examined and upheld the reasonableness of the extension’s
7-year time period. See id., at 181–182. City of Rome thus
stands for precisely the propositions for which City of
Boerne cited it: Congress may adopt “[p]reventive measures
. . . when there is reason to believe that many of the laws
affected by the congressional enactment have a significant
likelihood of being unconstitutional,” 521 U. S., at 532, par-
ticularly when it employs “termination dates, geographic
restrictions, or egregious predicates” that “tend to ensure
Congress’ means are proportionate to ends legitimate,” id.,
at 533; see also id., at 532–533 (analyzing Katzenbach in
similar terms); Shelby County, 570 U. S., at 535, 545–546
(same). Again, however, the amended §2 lacks any such
salutary limiting principles; it is unbounded in time, place,
and subject matter, and its districting-related commands
have no nexus to any likely constitutional wrongs.
In short, as construed by the District Court, §2 does not
remedy or deter unconstitutional discrimination in district-
ing in any way, shape, or form. On the contrary, it requires
it, hijacking the districting process to pursue a goal that has
no legitimate claim under our constitutional system: the
proportional allocation of political power on the basis of
race. Such a statute “cannot be considered remedial, pre-
ventive legislation,” and the race-based redistricting it
would command cannot be upheld under the Constitution.
City of Boerne, 521 U. S., at 532. 21
——————
21 JUSTICE KAVANAUGH, 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, JUSTICE KAVANAUGH 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, 509 U. S., at 657.
I cannot agree with that approach. The Constitution no more tolerates
this discrimination today than it will tolerate it tomorrow.
46 ALLEN v. MILLIGAN
THOMAS, J., dissenting
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, 512 U. S., at 881 (plurality opinion). Better yet, it
could adopt the correct interpretation of §2 and hold that a
Cite as: 599 U. S. ____ (2023) 47
THOMAS, J., dissenting
single-member districting plan is not a “voting qualifica-
tion,” a “prerequsite to voting,” or a “standard, practice, or
procedure,” as the Act uses those terms. One way or an-
other, the District Court should be reversed.
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, 535 F. 3d, at 599–600,
that computational redistricting methods might offer a
principled, race-neutral way out of the thicket Gingles car-
ried us into. Finally, it dismisses grave constitutional ques-
tions with an insupportably broad holding based on demon-
strably inapposite cases. 22
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) (GORSUCH, J., concurring) (slip op., at 1).
48 ALLEN v. MILLIGAN
THOMAS, J., dissenting
courts [have been] engaged in methodically carving the
country into racially designated electoral districts” for dec-
ades now. Holder, 512 U. S., at 945 (opinion of THOMAS, J.).
But that fact should inspire us to repentance, not resigna-
tion. I am even more convinced of the opinion that I formed
29 years ago:
“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.” Id., at 944.
I respectfully dissent.
Cite as: 599 U. S. ____ (2023) 49
Appendix to opinion of THOMAS, J.
50 ALLEN v. MILLIGAN
Appendix to opinion of THOMAS, J.
Cite as: 599 U. S. ____ (2023) 51
Appendix to opinion of THOMAS, J.
Cite as: 599 U. S. ____ (2023) 1
ALITO, J., dissenting
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]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins, dis-
senting.
Based on a flawed understanding of the framework
adopted in Thornburg v. 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.
2 ALLEN v. MILLIGAN
ALITO, J., dissenting
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, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at
3); Merrill v. Milligan, 595 U. S. ___, ___ (2022) (KAGAN, J.,
dissenting from grant of applications for stays) (slip op., at
3–4).
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, 478 U. S., at 46–48, 79. And to aid in that inquiry,
Gingles approved consideration of a long list of factors set
out in the Senate Judiciary Committee’s Majority Report on
the 1982 VRA amendments. Id., at 44–45 (citing S. Rep.
No. 97–417, pp. 28–30 (1982)).
B
My fundamental disagreement with the Court concerns
the first Gingles precondition. In cases like these, where
Cite as: 599 U. S. ____ (2023) 3
ALITO, J., dissenting
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, 581 U. S., at 301; Wisconsin Legislature, 595 U. S.,
at ___ (slip op., at 3); see also Gingles, 478 U. S., at 50.
The Court’s basic error is that it misunderstands what it
means for a district to be “reasonably configured.” Our
cases make it clear that “reasonably configured” is not a
synonym for “compact.” We have explained that the first
precondition also takes into account other traditional dis-
tricting criteria like attempting to avoid the splitting of po-
litical subdivisions and “communities of interest.” League
of United Latin American Citizens v. Perry, 548 U. S. 399,
433–434 (2006) (LULAC).
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
4 ALLEN v. MILLIGAN
ALITO, J., dissenting
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, 548 U. S., at 433–435.
Conspicuous violations of traditional districting criteria
constitute strong circumstantial evidence of unconstitution-
ality. And when it is shown that the configuration of a dis-
trict is attributable predominantly to race, that is more
than circumstantial evidence that the district is unlawful.
That is direct evidence of illegality because, as we have of-
ten held, race may not “predominate” in the drawing of dis-
trict lines. See, e.g., Cooper, 581 U. S., at 292; Bethune-Hill
v. Virginia State Bd. of Elections, 580 U. S. 178, 191–192
(2017); Shaw v. Hunt, 517 U. S. 899, 906–907 (1996)
Cite as: 599 U. S. ____ (2023) 5
ALITO, J., dissenting
(Shaw II); Miller v. Johnson, 515 U. S. 900, 920 (1995). 1
Because non-predominance is a longstanding and vital
feature of districting law, it must be honored in a Gingles
plaintiff ’s illustrative district. If race predominated in the
creation of such a district, the plaintiff has failed to satisfy
both our precedent, which requires “reasonably configured”
districts, and the terms of §2, which demand equal open-
ness. Two Terms ago, we engaged in a close analysis of the
text of §2 and explained that its “key requirement” is that
the political processes leading to nomination or election
must be “ ‘equally open to participation’ by members of a
protected class.” Brnovich v. Democratic National Commit-
tee, 594 U. S. ___, ___ (2021) (slip op., at 6, 15) (quoting 52
U. S. C. §10301(b); emphasis deleted). “[E]qual openness,”
we stressed, must be our “touchstone” in interpreting and
applying that provision. 594 U. S., at ___ (slip op., at 15).
When the race of one group is the predominant factor in
the creation of a district, that district goes beyond making
the electoral process equally open to the members of the
group in question. It gives the members of that group an
advantage that §2 does not require and that the Constitu-
tion may forbid. And because the creation of majority-
minority districts is something of a zero-sum endeavor, giv-
ing an advantage to one minority group may disadvantage
others.
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).
6 ALLEN v. MILLIGAN
ALITO, J., dissenting
on this issue, see Voinovich v. Quilter, 507 U. S. 146, 155–
156 (1993); White v. Regester, 412 U. S. 755, 766 (1973), but
a plaintiff can satisfy the former burden simply by adducing
evidence—in any acceptable form—that race did not pre-
dominate.
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, 517 U. S., at 977 (plurality opinion) (same). But that
cannot mean that every conceivable interpretation of §2 is
Cite as: 599 U. S. ____ (2023) 7
ALITO, J., dissenting
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 (KAVANAUGH, 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
v. Merrill, 582 F. Supp. 3d 924, 1008–1016 (ND Ala. 2022).
For this reason, the District Court’s §2 analysis was defi-
cient.
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.
8 ALLEN v. MILLIGAN
ALITO, J., dissenting
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.” Id., 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
Cite as: 599 U. S. ____ (2023) 9
ALITO, J., dissenting
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, 594 U. S., at ___, and
n. 14 (slip op., at 22, and n. 14); id., at ___, n. 6 (KAGAN, J.,
dissenting) (slip op., at 19, n. 6). The District Court’s rea-
soning contravened this statutory proviso. See ante, at 11–
12, 28–30 (THOMAS, J., dissenting).
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.
10 ALLEN v. MILLIGAN
ALITO, J., dissenting
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, 598 U. S. ___, ___ (2023) (slip op., at
9) (“[T]he language of an opinion is not always to be parsed
as though we were dealing with language of a statute”
(quoting Reiter v. Sonotone Corp., 442 U. S. 330, 341
(1979))). In applying that framework today, we should keep
in mind subsequent developments in our case law.
One important development has been a sharpening of the
methodology used in interpreting statutes. Gingles was de-
cided at a time when the Court’s statutory interpretation
decisions sometimes paid less attention to the actual text of
the statute than to its legislative history, and Gingles falls
into that category. The Court quoted §2 but then moved
briskly to the Senate Report. See 478 U. S., at 36–37, 43,
and n. 7. Today, our statutory interpretation decisions fo-
cus squarely on the statutory text. National Assn. of Mfrs.
v. Department of Defense, 583 U. S. 109, 127 (2018); Puerto
Rico v. Franklin Cal. Tax-Free Trust, 579 U. S. 115, 125
(2016); cf. Brnovich, 594 U. S., at ___ (slip op., at 14). And
as we held in Brnovich, “[t]he key requirement” set out in
the text of §2 is that a State’s electoral process must be
“ ‘equally open’ ” to members of all racial groups. Id., at ___
(slip op., at 15). The Gingles framework should be inter-
preted in a way that gives effect to this standard.
Another development that we should not ignore concerns
our case law on racial predominance. Post-Gingles deci-
sions like Miller, 515 U. S., at 920, Shaw II, 517 U. S., at
906–907, and Vera, 517 U. S., at 979 (plurality opinion),
made it clear that it is unconstitutional to use race as a
Cite as: 599 U. S. ____ (2023) 11
ALITO, J., dissenting
“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 v. Rodriguez,
583 U. S. ___, ___ (2018) (slip op., at 2). This same principle
logically applies with even greater force when we interpret
language in one of our prior opinions. It therefore goes
without question that we should apply the Gingles frame-
work in a way that does not set up a confrontation between
§2 and the Constitution, and understanding the first Gin-
gles precondition in the way I have outlined achieves that
result. 3
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, 471 U. S. 222, 227–231 (1985); Arlington
Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264–
12 ALLEN v. MILLIGAN
ALITO, J., dissenting
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, 507 U. S. 25, 40–41 (1993) (unless plain-
tiffs establish all three preconditions, there “neither has
been a wrong nor can be a remedy”).
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, 426 U. S. 229, 241–248 (1976).
Cite as: 599 U. S. ____ (2023) 13
ALITO, J., dissenting
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 2 App. 571–572; Supp. App. 72.
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. Id., 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
14 ALLEN v. MILLIGAN
ALITO, J., dissenting
questions about her work in this litigation, see 2 App. 710.
If it was impossible to draw two such districts in 2010, it
surely at least requires a great deal of intentional effort
now.
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
Cite as: 599 U. S. ____ (2023) 15
ALITO, J., dissenting
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.”
515 U. S., at 917.
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, 580 U. S., at 190). We
noted that the contrary argument was “foreclosed almost as
soon as it was raised in this Court.” Cooper, 581 U. S., at
301, n. 3; see also Vera, 517 U. S., at 966 (plurality opinion)
(race may still predominate even if “traditional districting
principle[s] do correlate to some extent with the district’s
layout”). “Traditional redistricting principles . . . are nu-
merous and malleable. . . . By deploying those factors in
various combinations and permutations, a [mapmaker]
could construct a plethora of potential maps that look con-
sistent with traditional, race-neutral principles.” Bethune-
Hill, 580 U. S., at 190. Here, a plurality allows plaintiffs to
do precisely what we warned against in Bethune-Hill.
The plurality’s analysis of predominance contravenes our
16 ALLEN v. MILLIGAN
ALITO, J., dissenting
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. Id., 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, 580 U. S., at 196.
* * *
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.