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Full Opinion
PRELIMINARY PRINT
Volume 599 U. S. Part 1
Pages 1–109
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 8, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users 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.
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2022
ALLEN, ALABAMA SECRETARY OF STATE, et al. v.
MILLIGAN et al.
appeal from the united states district court for the
northern district of alabama
Page Proof Pending Publication
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 As originally enacted in 1965,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, provid-
ing 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 condition
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 discrimi-
natory only in effect. Id., at 61–65 (plurality opinion). Criticism fol-
lowed, with many viewing Mobile's intent test as not suffciently protec-
tive 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 ultimately re-
solved this debate in 1982, reaching a bipartisan compromise that
*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.
1
2 ALLEN v. MILLIGAN
Syllabus
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).
In 1992, § 2 litigation challenging the State of Alabama's then-existing
districting map resulted in the State's frst majority-black district and,
subsequently, the State's frst black Representative since 1877. Ala-
bama's congressional map has remained remarkably similar since that
litigation. Following the 2020 decennial census, a group of plaintiffs 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 Alabama Leg-
islature's Committee on Reapportionment drew a new districting map
that would refect the distribution of the prior decade's population
growth across the State. The resulting map largely resembled 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-
Page Proof Pending Publication
bama's Secretary of State from conducting congressional elections under
HB1. One group (Caster plaintiffs) challenged HB1 as invalid under
§ 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 affrms the District Court's determination that plaintiffs
demonstrated a reasonable likelihood of success on their claim that HB1
violates § 2. Pp. 17–30, 33–42.
(a) The District Court faithfully applied this Court's precedents in
concluding that HB1 likely violates § 2. Pp. 17–23.
(1) This Court frst addressed the 1982 amendments to § 2 in Thorn-
burg v. Gingles, 478 U. S. 30, and has for the last 37 years evaluated § 2
claims using the Gingles framework. Gingles described the “essence
Cite as: 599 U. S. 1 (2023) 3
Syllabus
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 candidates.” Id., at 48.
Such a risk is greatest “where minority and majority 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 suff-
ciently large and [geographically] compact to constitute a majority in a
reasonably confgured district.” Wisconsin Legislature v. Wisconsin
Elections Comm'n, 595 U. S. 398, 402 (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 suffciently 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
“totality of circumstances,” that the challenged political process is not
“equally open” to minority voters. Id., at 45–46. The totality of cir-
Page Proof Pending Publication
cumstances inquiry recognizes that application of the Gingles factors is
fact dependent and requires courts to conduct “an intensely local ap-
praisal” 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. 17–19.
(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 frst Gingles precondition, the District Court cor-
rectly found that black voters could constitute a majority in a second
district that was “reasonably confgured.” 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 crite-
ria, for example, the District Court explained that the maps submitted
by one expert “perform[ed] generally better on average than” did HB1,
and contained no “bizarre shapes, or any other obvious irregularities.”
Plaintiffs' maps contained equal populations, were contiguous, and re-
spected existing political subdivisions. Indeed, some of plaintiffs' pro-
posed maps split the same (or even fewer) county lines than the State's.
The Court fnds unpersuasive the State's argument that plaintiffs'
maps were not reasonably confgured because they failed to keep to-
4 ALLEN v. MILLIGAN
Syllabus
gether the Gulf Coast region. Even if that region is a traditional com-
munity of interest, the District Court found the evidence insuffcient to
sustain Alabama's argument that no legitimate reason could exist to
split it. Moreover, the District Court found that plaintiffs' maps were
reasonably confgured because they joined together a different commu-
nity of interest called the Black Belt—a community with a high propor-
tion of similarly situated black voters who share a lineal connection to
“the many enslaved people brought there to work in the antebellum
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 suffciently as a bloc to usually defeat Black voters' preferred can-
didate.” 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 vot-
ers in the areas that he looked at regularly defeat the candidates pre-
ferred 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 Ala-
Page Proof Pending Publication
bamians enjoy virtually zero success in statewide elections” and where
“Alabama's extensive history of repugnant racial and voting-related dis-
crimination is undeniable and well documented.” The Court sees no
reason to disturb the District Court's careful factual fndings, which are
subject to clear error review and have gone unchallenged by Alabama
in any event. Pp. 19–23.
(b) The Court declines to remake its § 2 jurisprudence in line with
Alabama's “race-neutral benchmark” theory. Pp. 23–30.
(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 dis-
crimination 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 suffcient num-
ber of race-neutral alternatives. But this Court's cases have consist-
ently focused, for purposes of litigation, on the specifc illustrative maps
Cite as: 599 U. S. 1 (2023) 5
Syllabus
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 possibility
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
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. 23–26.
(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 example,
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 population. 509
U. S., at 633–634. Though North Carolina believed § 2 required a sec-
ond majority-minority district, the Court found North Carolina's ap-
Page Proof Pending Publication
proach an impermissible racial gerrymander because the State had
“concentrated a dispersed minority population in a single district by
disregarding traditional districting principles such as compactness, con-
tiguity, and respect for political subdivisions.” Id., at 647.
The Court's decisions in Bush and Shaw similarly declined to require
additional majority-minority districts under § 2 where those districts 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. 26–30.
(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 frst 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 fnally, Alabama would have plaintiffs
prove that any deviation between the State's plan and a race-neutral
6 ALLEN v. MILLIGAN
Syllabus
plan is explainable “only” by race. The Court declines to adopt any of
these novel requirements.
Here, Alabama contends that because HB1 suffciently “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
misplaced because those maps do not accurately represent the district-
ing process in Alabama. Regardless, the map-comparison test that Ala-
bama proposes is fawed 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 emphasized
that HB1 cannot have violated § 2 because none of plaintiffs' two million
odd maps contained more than one majority-minority district, that (al-
beit very big) number is close to irrelevant in practice, where experts
estimate the possible number of Alabama districting maps is at least in
the trillion trillions.
Alabama would also require plaintiffs to demonstrate that any devia-
tions 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
Page Proof Pending Publication
compromise struck in the 1982 amendments clearly rejected treating dis-
criminatory intent as a requirement for liability under § 2. Pp. 30, 33–38.
(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 Con-
gress about proportionality would have made little sense if § 2's cover-
age 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] Amend-
ment 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 pur-
Cite as: 599 U. S. 1 (2023) 7
Syllabus
poses of the Fifteenth Amendment,” id., at 177. Alabama's contention
that the Fifteenth Amendment does not authorize race-based redistrict-
ing as a remedy for § 2 violations similarly fails. The Court is not per-
suaded by Alabama's arguments that § 2 as interpreted in Gingles ex-
ceeds the remedial authority of Congress.
The Court's opinion does not diminish or disregard the concern that
§ 2 may impermissibly elevate race in the allocation of political power
within the States. Instead, the Court simply holds that a faithful appli-
cation of precedent and a fair reading of the record do not bear those
concerns out here. Pp. 38–42.
Nos. 21–1086, 582 F. Supp. 3d 924, and 21–1087, affrmed.
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.,
fled an opinion concurring in all but Part III–B–1, post, p. 42.
Thomas, J., fled 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, post, p. 45. Alito, J., fled a dissenting
opinion, in which Gorsuch, J., joined, post, p. 95.
Page
EdmundProof
G. LaCour,Pending Publication
Jr., Solicitor General of Alabama, ar-
gued the cause for appellants/petitioners in both cases.
With him on the briefs were Steve Marshall, Attorney Gen-
eral of Alabama, A. Barrett Bowdre and Thomas A. Wilson,
Deputy Solicitors General, James W. Davis, Deputy Attor-
ney General, and Misty S. Fairbanks Messick, A. Reid Har-
ris, Brenton M. Smith, and Benjamin M. Seiss, Assistant
Attorneys General, Dorman Walker, Jeffrey M. Harris, and
Taylor A. R. Meehan.
Deuel Ross argued the cause for appellees in No. 21–1086.
With him on the brief were Davin M. Rosborough, Julie A.
Ebenstein, Dale E. Ho, Jessica L. Ellsworth, David Dunn,
Jo-Ann Tamila Sagar, Johannah Walker, Janai S. Nelson,
Samuel Spital, Leah C. Aden, Stuart Naifeh, Ashley Bur-
rell, Kathryn Sadasivan, Kaitlin Welborn. David D. Cole,
and Michael Turrill. Abha Khanna argued the cause for
respondents in No. 21–1087. With her on the brief were
Marc E. Elias, Lalitha D. Madduri, Daniel C. Osher, Joseph
N. Posimato, and Richard P. Rouco.
8 ALLEN v. MILLIGAN
Counsel
Solicitor General Prelogar argued the cause for the
United States as amicus curiae urging affrmance. With
her on the brief were Assistant Attorney General Clarke,
Deputy Solicitor General Fletcher, Christopher G. Michel,
Erin H. Flynn, and Noah B. Bokat-Lindell.â€
†Briefs of amici curiae urging reversal in both cases were fled for the
State of Louisiana et al. by Jeff Landry, Attorney General of Louisiana,
Elizabeth B. Murrill, Solicitor General, and Shae McPhee, Deputy Solici-
tor General, and by the Attorneys General for their respective States as
follows: Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Chris
Carr of Georgia, Todd Rokita of Indiana, Lynn Fitch of Mississippi, Eric
Schmitt of Missouri, Austin Knudsen of Montana, Doug Peterson of Ne-
braska, John O'Connor of Oklahoma, Alan Wilson of South Carolina, Ken
Paxton of Texas, Sean Reyes of Utah, and Patrick Morrisey of West Vir-
ginia; for the Alabama Center for Law and Liberty by Matthew J. Clark
and John J. Park, Jr.; for America First Legal by Christopher E. Mills,
Gene P. Hamilton, and Reed D. Rubinstein; for Citizens United et al. by
Bradley A. Benbrook and Stephen M. Duvernay; for the Coastal Alabama
Partnership by John C. Neiman, Jr.; for the Lawyers Democracy Fund by
Page Proof Pending Publication
Efrem Marshall Braden; for the National Republican Redistricting Trust
by Jason Torchinsky and Phillip M. Gordon; for the Project on Fair Rep-
resentation by Jonathan Berry and R. Trent McCotter; for the Public
Interest Legal Foundation by Kaylan Phillips; for the Republican Na-
tional Committee by David A. Warrington, Harmeet K. Dhillon, and
Gary M. Lawkowski; for United States Representatives from Alabama by
Mr. Mills; and for Sen. John Braun et al. by Charles R. Spies.
Briefs of amici curiae urging affrmance in both cases were fled for the
District of Columbia et al. by Karl A. Racine, Attorney General of the
District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin
P. Phatak, Principal Deputy Solicitor General, Graham E. Phillips, Dep-
uty Solicitor General, and Adam J. Tuetken and Caroline W. Tan, Assist-
ant Attorneys General, Letitia James, Attorney General of New York,
Barbara D. Underwood, Solicitor General, Judith N. Vale, Deputy Solicitor
General, and Andrea W. Trento, Assistant Solicitor General, by Matthew
J. Platkin, Acting Attorney General of New Jersey, and by the Attorneys
General for their respective States as follows: Rob Bonta of California,
Philip J. Weiser of Colorado, William Tong of Connecticut, Kathleen Jen-
nings of Delaware, Holly T. Shikada of Hawaii, Kwame Raoul of Illinois,
Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Ellen F. Rosenblum of Oregon, Josh Shapiro
of Pennsylvania, Peter F. Neronha of Rhode Island, Susanne R. Young
Cite as: 599 U. S. 1 (2023) 9
Opinion of the Court
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 dis-
tricting plan it had recently adopted for the 2022 congres-
of Vermont, Robert W. Ferguson of Washington, and Joshua L. Kaul of
Wisconsin; for Alabama Historians by Roy T. Englert, Jr., and Carolyn M.
Forstein; for the American Bar Association by Reginald M. Turner, Mi-
chael R. Dreeben, Ephraim McDowell, and Megan Whisler; for the Bren-
nan Center for Justice by David A. O'Neil and Michael C. Li; for the
Campaign Legal Center by Mark P. Gaber and Paul M. Smith; for the
Central Alabama Fair Housing Center et al. by Rebecca Livengood and
Gabriel Diaz; for Computational Redistricting Experts by Sam Hirsch
and Jessica Ring Amunson; for the Constitutional Accountability Center
by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for the
Lawyers' Committee for Civil Rights Under Law et al. by Damon T. Hew-
itt, Jon M. Greenbaum, Ezra D. Rosenberg, and Sheila L. Birnbaum; for
Local Governments by Joseph R. Palmore, Jonathan B. Miller, Anne L.
Morgan, Mark D. Griffn, Kristin M. Bronson, Arturo G. Michel, Michael
Page Proof Pending Publication
N. Feuer, Sylvia O. Hinds-Radix, Diana P. Cortes, Lyndsey M. Olson,
and James R. Williams; for the National Congress of American Indians
by Jacqueline De LeĂłn, John E. Echohawk, Matthew Campbell, Colby
Duren, and Michael B. de Leeuw; for Republican Former Governors by
Kathleen Hartnett, Jonathan L. Williams, Adam S. Gershenson, Kristen
A. Johnson, Christine P. Sun, and Ranjana Natarajan; for the Southern
Poverty Law Center et al. by Noah N. Gillespie and Caren E. Short; for
UCLA Social Scientists by Chad W. Dunn and Bernadette Reyes; for Vot-
ing Rights Practitioners by Debo P. Adegbile and Edward Williams; for
U. W. Clemon et al. by Jeffrey T. Green, Marisa West, and Naomi Igra;
for Travis Crum by Demian A. Ordway and Mr. Crum, pro se; and for
U. S. House Representative Terri Sewell et al. by John Paul Schnapper-
Casteras and Carolyn E. Shapiro.
Robert A. Atkins, Jonathan H. Hurwitz, Allison Riggs, and Mitchell
Brown fled a brief for Press Robinson et al. as amici curiae urging af-
frmance in No. 21–1086.
Briefs of amici curiae were fled in both cases for the American Legisla-
tive Exchange Council by Jonathon P. Hauenschild; for the Bipartisan
Group of Senators et al. by Jeffrey P. Justman and Craig S. Coleman; for
the Singleton Plaintiffs by James Uriah Blacksher, Joe R. Whatley, Jr.,
Henry C. Quillen, and Eli Hare; for Jowei Chen et al. by Ruth Greenwood
and Theresa J. Lee; and for John Wahl by Albert L. Jordan.
*Justice Kavanaugh joins all but Part III–B–1 of this opinion.
10 ALLEN v. MILLIGAN
Opinion of the Court
sional elections, fnding that the plan likely violated Sec-
tion 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 affrm.
I
A
Shortly after the Civil War, Congress passed and the
States ratifed 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,”
Page Proof Pending Publication
Northwest Austin Municipal Util. Dist. No. One v. Holder,
557 U. S. 193, 220–221 (2009) (Thomas, J., concurring in judg-
ment in part and dissenting in part). Congress stood up to
little of it; “[t]he frst 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, Ҥ 2 closely tracked the language of the [Fifteenth]
Cite as: 599 U. S. 1 (2023) 11
Opinion of the Court
Amendment” and, as a result, had little independent force.
Brnovich v. Democratic National Committee, 594 U. S.
–––, ––– (2021).1 Our leading case on § 2 at the time was
City of Mobile v. Bolden, which involved a claim by black
voters that the City's at-large election system effectively ex-
cluded them from participating in the election of city com-
missioners. 446 U. S. 55 (1980). The commission had three
seats, black voters comprised one-third of the City's popula-
tion, 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.
Page Proof Pending Publication
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 Legis-
lative 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 fghting
electoral schemes that exclude them from offce.” Washing-
1
As originally enacted, § 2 provided that “[n]o voting qualifcation or
prerequisite to voting, or standard, practice, or procedure shall be imposed
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.).
12 ALLEN v. MILLIGAN
Opinion of the Court
ton Post, Apr. 23, 1980, p. A5. By focusing on discrimi-
natory intent and ignoring disparate effect, critics argued,
the Court had abrogated “the standard used by the courts
to 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 inevi-
tably require a focus on proportionality—wherever a minor-
ity 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 propor-
tionality in elections was regarded by many as intolerable.
Doing so, wrote Senator Orrin Hatch in the Washington Star,
would be “strongly resented by the American public. ”
Washington Star, Sept. 30, 1980, p. A–9. The Wall Street
Page Proof Pending Publication
Journal offered similar criticism. An effects test would gen-
erate “more, not less, racial and ethnic polarization.” 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, Congress-
man 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 re-
placed with the phrase “in a manner which results in a de-
nial or abridgement.” H. R. 3112, 97th Cong., 1st Sess., 2
Cite as: 599 U. S. 1 (2023) 13
Opinion of the Court
(as introduced) (emphasis added). This was the effects test
that Mobile's detractors sought.
But those wary of proportionality were not far behind.
Senator Hatch argued that the effects test “was intelligible
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
Page Proof Pending Publication
(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 ques-
tion—[in] that its members had less opportunity than did
other residents in the district to participate in the politi-
cal 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 over-
whelming margin, 85– 8. Eleven days later, President
Reagan signed the Act into law. The amended § 2 reads as
follows:
“(a) No voting qualifcation or prerequisite to voting
or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner
14 ALLEN v. MILLIGAN
Opinion of the Court
which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of
race or color . . . as provided in subsection (b).
“(b) A violation of subsection (a) is established if,
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 offce in the State or political subdivision
is one circumstance which may be considered: 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.
Page Proof Pending Publication B
For the frst 115 years following Reconstruction, the State
of Alabama elected no black Representatives to Congress.
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 diluting the
votes of black Alabamians in violation of § 2. See Wesch v.
Hunt, 785 F. Supp. 1491, 1493 (SD Ala.). The lawsuit
produced a majority-black district in Alabama for the frst
time in decades. Id., at 1499. And that fall, Birmingham
lawyer Earl Hilliard became the frst black Representative
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; Dis-
Cite as: 599 U. S. 1 (2023) 15
Opinion of the Court
trict 2—known as the Wiregrass region—occupies the south-
east; District 3 covers the eastern-central part of the State;
Districts 4 and 5 stretch width-wise across the north, with
the 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 pop-
ulation 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
Page Proof Pending Publication
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, mini-
mizing the number of counties in each district, and preserv-
ing cores of existing districts. Id., at 1036–1037.
16 ALLEN v. MILLIGAN
Opinion of the Court
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.
Supp. App. 205–211. The Alabama Legislature enacted Hi-
naman's map under the name HB1. 582 F. Supp. 3d, at 935,
950–951. Governor Ivey signed HB1 into law on Novem-
ber 4, 2021. Id., at 950.
C
Three groups of plaintiffs brought suit seeking to stop Ala-
bama's Secretary of State from conducting congressional
elections under HB1. The frst 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. Finally,
the Singleton plaintiffs, who had previously sued to enjoin
Page Proof Pending Publication
Alabama's 2011 congressional map, amended their complaint
to challenge HB1 as an impermissible racial gerrymander
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 briefng
and upwards of 350 exhibits, and considered arguments from
the 43 different lawyers who had appeared in the litigation.
Id., at 935–936. After reviewing that extensive record, 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
Cite as: 599 U. S. 1 (2023) 17
Opinion of the Court
Alabama from using HB1 in forthcoming elections. 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 certio-
rari 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 vio-
lates § 2. We affrm that determination.
A
For the past forty years, we have evaluated claims brought
under § 2 using the three-part framework developed in our
decision Thornburg v. Gingles, 478 U. S. 30 (1986). Gingles
Page Proof Pending Publication
concerned a challenge to North Carolina's multimember dis-
tricting scheme, which allegedly diluted the vote of its black
citizens. Id., at 34–36. The case presented the frst oppor-
tunity 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 so-
cial 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
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, fndings of fact and con-
clusions 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.
18 ALLEN v. MILLIGAN
Opinion of the Court
minimize or cancel out” minority voters' “ability to elect
their preferred candidates.” Id., at 48. Such a risk is
greatest “where minority and majority voters consistently
prefer different candidates” and where minority voters are
submerged in a majority voting population that “regularly
defeat[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 suffciently large and [geo-
graphically] compact to constitute a majority in a reasonably
confgured district.” Wisconsin Legislature v. Wisconsin
Elections Comm'n, 595 U. S. 398, 402 (2022) (per curiam)
(citing Gingles, 478 U. S., at 46–51). A district will be rea-
sonably confgured, our cases explain, if it comports with tra-
ditional districting criteria, such as being contiguous and
reasonably compact. See Alabama Legislative Black Cau-
cus v. Alabama, 575 U. S. 254, 272 (2015). “Second, the mi-
Page Proof Pending Publication
nority group must be able to show that it is politically cohe-
sive.” Gingles, 478 U. S., at 51. And third, “the minority
must be able to demonstrate that the white majority votes
suffciently as a bloc to enable it . . . to defeat the minority's
preferred candidate.” Ibid. Finally, a plaintiff who demon-
strates the three preconditions must also show, under the
“totality of circumstances,” that the political process is not
“equally open” to minority voters. Id., at 45–46; see also
id., at 36–38 (identifying several factors relevant to the total-
ity of circumstances inquiry, including “the extent of any his-
tory of offcial discrimination in the state . . . that touched
the right of the members of the minority group to register, to
vote, or otherwise to participate in the democratic process”).
Each Gingles precondition serves a different purpose.
The frst, focused on geographical compactness and numero-
sity, is “needed to establish that the minority has the poten-
tial 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 mi-
Cite as: 599 U. S. 1 (2023) 19
Opinion of the Court
nority group, shows that a representative of its choice would
in fact be elected. See ibid. The third precondition, fo-
cused on racially polarized voting, “establish[es] that the
challenged districting thwarts a distinctive minority vote” at
least plausibly on account of race. Ibid. And fnally, the
totality of circumstances inquiry recognizes that application
of the Gingles factors is “peculiarly dependent upon the facts
of each case.” 478 U. S., at 79. Before courts can fnd 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 jurisprudence
since it was decided 37 years ago. Congress has never dis-
turbed 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.
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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 Leg isla ture, 595
U. S. 398 (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 frst Gingles precondition, the District
Court correctly found that black voters could constitute a
majority in a second district that was “reasonably confg-
ured. ” 1 App. to Emergency Application for Stay in
20 ALLEN v. MILLIGAN
Opinion of the Court
No. 21–1086 etc., p. 253 (MSA). The plaintiffs adduced
eleven illustrative maps—that is, example districting maps
that Alabama could enact—each of which contained two
majority-black districts that comported with traditional dis-
tricting criteria. With respect to compactness, for example,
the District Court explained that the maps submitted by one
of plaintiffs' experts, Dr. Moon Duchin, “perform[ed] gener-
ally 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 exist-
ing plan. Ibid. And none of plaintiffs' maps contained any
“tentacles, appendages, bizarre shapes, or any other obvious
irregularities that would make it diffcult to fnd” them suff-
ciently compact. Id., at 1011. Plaintiffs' maps also satisfed
other traditional districting criteria. They contained equal
populations, were contiguous, and respected existing politi-
cal subdivisions, such as counties, cities, and towns. Id., at
Page Proof Pending Publication
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' illustrative
maps “strongly suggest[ed] that Black voters in Alabama”
could constitute a majority in a second, reasonably confg-
ured, district. Id., at 1010.
The State nevertheless argues that plaintiffs' maps were
not reasonably confgured 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 histori-
cal 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.
Cite as: 599 U. S. 1 (2023) 21
Opinion of the Court
We do not fnd the State's argument persuasive. Only two
witnesses testifed that the Gulf Coast was a community of
interest. Id., at 1015. The testimony provided by one of
those witnesses was “partial, selectively informed, and
poorly supported.” Ibid. The other witness, meanwhile,
justifed keeping the Gulf Coast together “simply” to pre-
serve “political advantage[ ]”: “You start splitting counties,”
he testifed, “and that county loses its infuence. That's why
I don't want Mobile County to be split.” Id., at 990, 1015.
The District Court understandably found this testimony in-
suffcient to sustain Alabama's “overdrawn argument 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 inter-
est, moreover, the District Court found that plaintiffs' maps
would still be reasonably confgured because they joined to-
gether a different community of interest called the Black
Page Proof Pending Publication
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, unequal ac-
cess to government services, . . . lack of adequate health-
care,” 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 con-
cluded—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-
22 ALLEN v. MILLIGAN
Opinion of the Court
trative plans, by contrast, naturally fare worse because they
change where the 2011 district lines were drawn. See, 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 im-
munize from challenge a new racially discriminatory redis-
tricting plan simply by claiming that it resembled an old ra-
cially discriminatory plan. That is not the law: § 2 does not
permit a State to provide some voters “less opportunity . . .
to participate in the political process” just because 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 suffciently as a bloc to
usually defeat Black voters' preferred candidate.” 582
F. Supp. 3d, at 1016 (internal quotation marks omitted).
Page Proof Pending Publication
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
conceded “that the candidates preferred by white voters in
the areas that he looked at regularly defeat the candidates
preferred 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 Ala-
bama 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.
Cite as: 599 U. S. 1 (2023) 23
Opinion of the Court
We see no reason to disturb the District Court's care-
ful factual fndings, which are subject to clear error review
and 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:
Using modern computer technology, mapmakers can now
generate millions of possible districting maps for a given
State. The maps can be designed to comply with traditional
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districting 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 num-
ber of majority-minority districts in the entire multimillion-
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 frst 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 argues,
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
24 ALLEN v. MILLIGAN
Opinion of the Court
benchmark best matches the text of the Voting Rights Act.
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 proportion-
ality in districting. According to the State, Gingles de-
mands that where “another majority-black district could be
drawn, it must be drawn.” Brief for Alabama 71 (emphasis
deleted). And that sort of proportionality, Alabama contin-
ues, is inconsistent with the compromise that Congress
struck, with the text of § 2, and with the Constitution's prohi-
bition on racial discrimination in voting.
To apply the race-neutral benchmark in practice, Alabama
would require § 2 plaintiffs to make at least three showings.
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First, the illustrative plan that plaintiffs adduce for the frst
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 enacted plan
diverges from the average plan that would be drawn without
taking race into account. And fnally, plaintiffs must ulti-
mately 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 fnd 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
Cite as: 599 U. S. 1 (2023) 25
Opinion of the Court
denial or abridgement of the right of any citizen . . . to vote
on account of race or color.” 52 U. S. C. § 10301(a). What
that means, § 2 goes on to explain, is that the political proc-
esses in the State must 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).
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 pres-
ence of discriminatory effects, not discriminatory intent.
See, e. g., Chisom v. Roemer, 501 U. S. 380, 403–404 (1991).
And we have explained that “[i]t is patently clear that Con-
gress 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 discrimination.” Gingles, 478
U. S., at 71, n. 34 (plurality opinion) (some alterations omit-
Page Proof Pending Publication
ted). Individuals thus lack an equal opportunity to partici-
pate in the political process when a State's electoral struc-
ture operates in a manner that “minimize[s] or cancel[s] out
the[ir] voting strength.” Id., at 47. That occurs where an
individual is disabled from “enter[ing] into the political proc-
ess in a reliable and meaningful manner” “in the light of past
and present reality, political 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 discrimination 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 suffcient number of race-neutral alter-
natives. See Brief for Alabama 54–56. But our cases have
consistently focused, for purposes of litigation, on the specifc
26 ALLEN v. MILLIGAN
Opinion of the Court
illustrative maps that a plaintiff adduces. Deviation from
that map shows it is possible that the State's map has a dis-
parate effect on account of race. The remainder of the Gin-
gles 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 determined
“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 rela-
tive to the benchmark. That single-minded view of § 2 can-
not be squared with the VRA's demand that courts employ
a more refned 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
Page Proof Pending Publication
16 (plurality opinion); see also Wisconsin Legislature, 595
U. S., at 405 (faulting lower court for “improperly reduc[ing]
Gingles' totality-of-circumstances analysis to a single fac-
tor”); De Grandy, 512 U. S., at 1018 (“An infexible 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 propor-
tionality, as our decisions have frequently demonstrated.
3
The principal dissent complains that “what the District Court did here
is essentially no different from what many courts have done for decades
under this Court's superintendence.” Post, at 90–91 (opinion of Thomas,
J.). That is not such a bad defnition of stare decisis.
Cite as: 599 U. S. 1 (2023) 27
Opinion of the Court
In Shaw v. Reno, for example, we considered the permissi-
bility of a second majority-minority district in North Caro-
lina, 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-minority
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, fnancial centers, and manufactur-
ing areas until it gobble[d] in enough enclaves of black neigh-
borhoods.” 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, fnding in-
stead that those challenging the map stated a claim of imper-
Page Proof Pending Publication
missible racial gerrymandering under the Equal Protection
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 mi-
nority population in a single district by disregarding tradi-
tional districting principles such as compactness, contiguity,
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 widely separated by geographical and political
boundaries,” we said, raised serious constitutional concerns.
Ibid. (emphasis added).
The same theme emerged in our 1995 decision Miller v.
Johnson, where we upheld a district court's fnding 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 was
27%, but there was only one majority-minority district. Id.,
at 906. To comply with the VRA, Georgia thought it neces-
28 ALLEN v. MILLIGAN
Opinion of the Court
sary to create two more majority-minority districts—achiev-
ing proportionality. Id., at 920–921. But like North Caro-
lina in Shaw, Georgia could not create the districts without
fouting traditional criteria. One district “centered around
four discrete, widely spaced urban centers that ha[d] abso-
lutely nothing to do with each other, and stretch[ed] the dis-
trict hundreds of miles across rural counties and narrow
swamp corridors.” 515 U. S., at 908. “Geographically,” 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-
Page Proof Pending Publication
tricts had “no integrity in terms of traditional, neutral redis-
tricting 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 cur-
rently 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 State in
the country, meanwhile, “has attained a proportional share”
of districts in which Hispanic-preferred candidates are likely
to prevail. Id., at 3–4. That is because as residential
segregation decreases—as it has “sharply” done since the
Cite as: 599 U. S. 1 (2023) 29
Opinion of the Court
1970s—satisfying traditional districting criteria such as
the compactness requirement “becomes more difficult.”
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 Sec-
tion 2 challenges were a handful of state house districts near
Milwaukee and Houston.” Id., at 7–8. By contrast, “[n]u-
merous 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 (collect-
ing cases). The same has been true of recent litigation in
this Court. See Abbott, 585 U. S., at ––– – ––– (fnding a
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Texas district did not violate § 2 because “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
Reapportionment, we have repeatedly observed, “is pri-
marily the duty and responsibility of the State[s],” not the
federal courts. Id., at –––. Properly applied, the Gingles
factors help ensure that remains the case. As respondents
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 91 (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 corner
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 27–29. It seems it is the dissent that is “quixoti-
cally joust[ing] with an imaginary adversary.” Post, at 90 (opinion of
Thomas, J.).
30 ALLEN v. MILLIGAN
Opinion of Roberts, C. J.
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 re-
quirements, instead, limit 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.” 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 address
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
Page
The frstProof
change to Pending
existing law thatPublication
Alabama would re-
quire is prohibiting the illustrative maps that plaintiffs sub-
mit to satisfy the frst Gingles precondition from being
“based” on race. Brief for Alabama 56. Although Alabama
is not entirely clear whether, under its view, plaintiffs' illus-
trative 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). The former is permissible; the latter 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 consideration of race.” Ab-
Cite as: 599 U. S. 1 (2023) 31
Opinion of Roberts, C. J.
bott, 585 U. S., at –––. The question whether additional
majority-minority districts 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 predomi-
nant 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 after the
race-based decision had been made.” Bethune-Hill v. Vir-
ginia State Bd. of Elections, 580 U. S. 178, 189 (2017) (inter-
nal 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 con-
sciousness can be diffcult to discern, see Miller, 515 U. S.,
at 916, it was not breached here. The Caster plaintiffs relied
Page Proof Pending Publication
on illustrative maps produced by expert Bill Cooper. See 2
App. 591–592. Cooper testifed 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 testifed that he gave all these
factors “equal weighting.” Id., at 594. And when asked
squarely whether race predominated in his development of
the illustrative plans, Cooper responded: “No. It was a con-
sideration. 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 978–979.
The court also explained that Alabama's evidence of racial
predominance in Cooper's maps was exceedingly thin. Ala-
bama's expert, Thomas Bryan, “testifed that he never re-
viewed the exhibits to Mr. Cooper's report” and “that he
never reviewed” one of the illustrative plans that Cooper
32 ALLEN v. MILLIGAN
Opinion of Roberts, C. J.
submitted. Id., at 1006. Bryan further testifed that he
could offer no “conclusions or opinions as to the apparent
basis of any individual line drawing decisions in Cooper's il-
lustrative plans.” 2 App. 740. By his own admission, Bry-
an's analysis of any race predominance in Cooper's maps
“was pretty light.” Id., at 739. The District Court did not
err in fnding that race did not predominate in Cooper's maps
in light of the evidence before it.5
The dissent contends that race nevertheless predominated
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 59 (opinion of
Thomas, J.) (quoting Bethune-Hill, 580 U. S., at 192). This
argument fails in multiple ways. First, the dissent's reli-
ance 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 remanded
for the lower court to conduct the predominance analysis it-
Page Proof Pending Publication
self, 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. Jus-
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 58 (opinion of Thomas, J.) (quoting 2 App. 601). But Cooper testifed
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.
(emphasis added). The Black Belt, he emphasized, was defned by its
“historical boundaries”—namely, the group of “rural counties plus Mont-
gomery 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 neu-
tral districting criteria.” Post, at 58 (opinion of Thomas, J.). But as the
District Court found, and as Alabama does not contest, Cooper's maps
satisfed other traditional criteria, such as compactness, contiguity, equal
populations, and respect for political subdivisions.
Cite as: 599 U. S. 1 (2023) 33
Opinion of the Court
tice Thomas dissented in relevant part, contending that be-
cause “the legislature sought to achieve a [black voting-age
population] of at least 55%,” race necessarily predominated
in its decisionmaking. Id., at 198 (opinion concurring in
judgment 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 faw 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 frst 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 require,
that an additional majority-minority district could be drawn.
That is the whole point of the enterprise. The upshot 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”
Page Proof Pending Publication
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 frst 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.
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 gener-
ation process.” 2 App. 710. Of these two million “race-
34 ALLEN v. MILLIGAN
Opinion of the Court
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 cre-
ated contained two majority-black districts. See 2 App.
571–572. Alabama thus contends that because HB1 suff-
ciently “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 Ala-
bama. Dr. Duchin's maps were based on old census data—
from 2010 instead of 2020—and ignored certain traditional
districting criteria, such as keeping together communities
of interest, political subdivisions, or municipalities.6 And
Page Proof Pending Publication
Dr. Imai's 30,000 maps failed to incorporate Alabama's own
districting guidelines, including keeping together communi-
ties 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 academic
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 traditional
districting guidelines. Post, at 66–67, and n. 14 (opinion of Thomas, J.);
see also post, at 59, n. 9, 60. In doing so, that dissent ignores Dr. Duchin's
testimony that—when using the correct census data—the “randomized al-
gorithms” 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
Cite as: 599 U. S. 1 (2023) 35
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 fawed
in its fundamentals. Districting involves myriad considera-
tions—compactness, contiguity, political subdivisions, natu-
ral geographic boundaries, county lines, pairing of incum-
bents, communities of interest, and population equality. See
Miller, 515 U. S., at 916. Yet “[q]uantifying, measuring,
prioritizing, and reconciling these criteria” requires map
drawers to “make diffcult, 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). For example, “the scientifc literature
contains dozens of competing metrics” on the issue of com-
Page Proof Pending Publication
pactness. Redistricting Brief 8. Which one of these met-
rics should be used? What happens when 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 plain-
standard that the dissents urge would be satisfed here. See post, at 64–
65 (opinion of Thomas, J.); post, at 100 (opinion of Alito, J.). So too could
that standard be satisfed in every § 2 case; after all, as Duchin explained,
any map produced in a deliberately race-predominant manner would nec-
essarily emerge at some point in a random, race-neutral process. 2 App.
713. And although Justice Alito voices support for an “old-school ap-
proach” to § 2, even that approach cannot be squared with his understand-
ing of Gingles. Post, at 99–100. The very reason a plaintiff adduces a
map at the frst step of Gingles is precisely because of its racial composi-
tion—that is, because it creates an additional majority-minority district
that does not then exist.
36 ALLEN v. MILLIGAN
Opinion of the Court
tiffs must use to demonstrate an (unspecifed) level of devia-
tion 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 nei-
ther the text of § 2 nor the fraught debate that produced it
suggests that “equal access” to the fundamental right of vot-
ing turns on computer simulations that are technically com-
plicated, expensive to produce, and available to “[o]nly a
small cadre of university researchers [that] have the re-
sources 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 cannot
have violated § 2 because none of plaintiffs' two million odd
maps contained more than one majority-minority district.
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
Page Proof Pending Publication
volume matters. But as elsewhere, Alabama misconceives
the math project that it expects courts to oversee. A brief
submitted by three computational redistricting experts ex-
plains that the number of possible districting maps in Ala-
bama is at least in the “trillion trillions.” Redistricting
Brief 6, n. 7. Another publication reports that the number
of potential maps may be orders of magnitude higher: “the
universe of all possible connected, population-balanced dis-
tricting plans that satisfy the state's requirements,” it ex-
plains, “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,
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 diffculties 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. 1 (2023) 37
Opinion of the Court
however powerful it may sound in the abstract, is thus close
to irrelevant in practice. What would the next million maps
show? The next billion? The frst trillion of the trillion
trillions? Answerless questions all. See, e. g., Redistrict-
ing Brief 2 (“[I]t is computationally intractable, and thus ef-
fectively impossible, to generate a complete enumeration of
all potential districting plans. [Even] algorithms that at-
tempt to create a manageable sample of that astronomically
large universe do not consistently identify an average or me-
dian map.”); Duchin & Spencer 768 (“[A] comprehensive sur-
vey 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 fnish line is.
3
Alabama's fnal contention with respect to the race-
Page Proof Pending Publication
neutral benchmark is that it requires plaintiffs to demon-
strate that any deviations between the State's enacted plan
and race-neutral alternatives “can be explained only by ra-
cial discrimination.” Brief for Alabama 44 (emphasis added).
We again fnd little merit in Alabama's proposal. As we
have already explained, our precedents and the legislative
compromise struck in the 1982 amendments clearly rejected
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 even more
demanding than the intent test Congress jettisoned. Dem-
onstrating discriminatory intent, we have long held, “does
not require a plaintiff to prove that the challenged action
rested solely on racially discriminatory purpose[ ].” Arling-
ton Heights v. Metropolitan Housing Development Corp.,
429 U. S. 252, 265 (1977) (emphasis added); see also Reno, 520
U. S., at 488. Alabama's proposed approach stands in sharp
contrast to all this, injecting into the effects test of § 2 an
38 ALLEN v. MILLIGAN
Opinion of the Court
evidentiary standard that even our purposeful discrimination
cases eschew.
C
Alabama fnally 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 frst 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 “methods
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 judgment). Ex-
amples of covered activities would include “registration re-
quirements, . . . the locations of polling places, the times polls
Page Proof Pending Publication
are open, the use of paper ballots as opposed to voting ma-
chines, 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 19; see also Brno-
vich, 594 U. S., at –––, n. 5 (collecting cases). 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 invalidated por-
tions of a State's single-district map under § 2. See LULAC,
548 U. S., at 427–429.9 Alabama's approach would require
9
The dissent suggests that Growe does not support the proposition that
§ 2 applies to single-member redistricting. Post, at 48–49 (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 [Gingles]
Cite as: 599 U. S. 1 (2023) 39
Opinion of the Court
“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 challenges.
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 defnition of a “procedure is the manner or method
of proceeding in a process or course of action.” Brief for
Alabama 51 (internal quotation marks omitted). But the
manner of proceeding in the act of voting entails determining
in which districts voters will vote. The fact that the term
“procedure” is preceded by the phrase “qualifcation or pre-
requisite to voting,” 52 U. S. C. § 10301(a), does not change
Page Proof Pending Publication
its meaning. It is hard to imagine many more fundamental
“prerequisites” to voting than determining where to cast
your ballot or who you are eligible to vote for. Perhaps for
set out the basic framework for establishing a vote dilution claim against
at-large, multimember 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 challenge to a multimember dis-
trict . . . .”); Bartlett v. Strickland, 556 U. S. 1, 11 (2009) (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 104 (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 –––.
40 ALLEN v. MILLIGAN
Opinion of the Court
that reason, even Alabama does not bear the courage of its
conviction on this point. It refuses to argue that § 2 is inap-
plicable to multimember districting, though its textual argu-
ments 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 districting
because it “focuses on ballot access and counting” only.
Post, at 46 (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.” Post, at 47 (quoting 52 U. S. C. § 10310(c)(1);
emphasis 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-
Page Proof Pending Publication
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 47 (opinion of
Thomas, J.). But history did not stop in 1960. As we have
explained, Congress adopted the amended § 2 in response to
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 48, n. 3 (opinion of Thomas, J.), a
case that was also about districting (in fact, a case that inval-
idated 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 debates over
Cite as: 599 U. S. 1 (2023) 41
Opinion of the Court
proportionality raged—debates that would have made little
sense if § 2 covered only poll taxes and the like, as the dis-
sent contends.
We also reject Alabama's argument that § 2 as applied to
redistricting is unconstitutional under the Fifteenth Amend-
ment. According to Alabama, that Amendment permits
Congress to legislate against only purposeful discrimination
by States. See Brief for Alabama 73. But we held over 40
years ago “that, even if § 1 of the [Fifteenth] Amendment
prohibits only purposeful discrimination, the prior decisions
of this Court foreclose any argument that Congress may not,
pursuant to § 2 [of the Fifteenth Amendment], outlaw 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 promoting the pur-
poses of the Fifteenth Amendment.” Id., at 177. As City
Page Proof Pending Publication
of Rome recognized, we had reached the very same conclu-
sion in South Carolina v. Katzenbach, a decision issued right
after the VRA was frst enacted. 383 U. S., at 308–309, 329–
337; see also Brnovich, 594 U. S., at –––.
Alabama further argues that, even if the Fif teenth
Amendment authorizes the effects test of § 2, that Amend-
ment does not authorize race-based redistricting as a remedy
for § 2 violations. But for the last four decades, this Court
and the lower federal courts have repeatedly applied the ef-
fects test of § 2 as interpreted in Gingles and, under certain
circumstances, have authorized race-based redistricting as a
remedy for state districting maps that violate § 2. See, e. g.,
supra, at 19; cf. Mississippi Republican Executive Commit-
tee v. Brooks, 469 U. S. 1002 (1984). In light of that prece-
dent, including City of Rome, we are not persuaded by Ala-
bama'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,
42 ALLEN v. MILLIGAN
Kavanaugh, J., concurring in part
not new. See, e. g., Shaw, 509 U. S., at 657 (“Racial gerry-
mandering, even for remedial purposes, may balkanize us
into competing racial factions; it threatens to carry us fur-
ther 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 ap-
plication of our precedents and a fair reading of the record
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 affrmed.
It is so ordered.
Justice Kavanaugh, concurring in all but Part III–B–1.
Page Proof
I agree with Pending
the Court that Alabama'sPublication
redistricting plan
violates § 2 of the Voting Rights Act as interpreted in Thorn-
burg 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 Court has ordi-
narily left the updating or correction of erroneous statutory
precedents to the legislative process.” Ramos v. Louisi-
ana, 590 U. S. –––, ––– (2020) (Kavanaugh, J., concurring in
part); see also, e. g., Kimble v. Marvel Entertainment, LLC,
576 U. S. 446, 456 (2015); Patterson v. McLean Credit Union,
Cite as: 599 U. S. 1 (2023) 43
Kavanaugh, J., concurring in part
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 re-
quires 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 cre-
ation 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 confgured”—namely, by
respecting compactness principles and other traditional dis-
tricting criteria such as county, city, and town lines. See,
e. g., Cooper v. Harris, 581 U. S. 285, 301–302 (2017); Voino-
Page Proof Pending Publication
vich v. Quilter, 507 U. S. 146, 153–154 (1993); ante, at 17–19,
26–30.
If Gingles demanded a proportional number of majority-
minority districts, States would be forced to group togeth-
er 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 fatly rejected that ap-
proach. See, e. g., Abbott v. Perez, 585 U. S. –––, ––– – –––
(2018); Bush v. Vera, 517 U. S. 952, 979 (1996) (plurality opin-
1
Unlike ordinary statutory precedents, the “Court's precedents apply-
ing common-law statutes and pronouncing the Court's own interpretive
methods and principles typically do not fall within that category of strin-
gent statutory stare decisis.” Ramos, 590 U. S., at –––, n. 2 (opinion of
Kavanaugh, J.); see also, e. g., Kisor v. Wilkie, 588 U. S. –––, ––– – –––
(2019) (Gorsuch, J., concurring in judgment); id., at ––– – ––– (Kava-
naugh, J., concurring in judgment); 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).
44 ALLEN v. MILLIGAN
Kavanaugh, J., concurring in part
ion); 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 26–30.2
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 de-
tect the presence or absence of intentional discrimination.
For example, if all of the computer simulations generated
only one majority-minority district, it might be diffcult 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 Mem-
bers of this Court today agree—the text of § 2 establishes an
effects test, not an intent test. See ante, at 25; post, at 51
(Thomas, J., dissenting); post, at 109 (Alito, J., dissenting).
And the effects test, as applied by Gingles to redistricting,
requires in certain circumstances that courts account for the
Page Proof Pending Publication
race of voters so as to prevent the cracking or packing—
whether intentional or not—of large and geographically com-
pact minority populations. See Abbott, 585 U. S., at –––;
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)
(“§ 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
2
To ensure that Gingles does not improperly morph into a proportional-
ity mandate, courts must rigorously apply the “geographically compact”
and “reasonably confgured” requirements. See ante, at 30 (§ 2 require-
ments under Gingles are “exacting”). In this case, for example, it is im-
portant that at least some of the plaintiffs' proposed alternative maps re-
spect county lines at least as well as Alabama's redistricting plan. See
ante, at 20.
Cite as: 599 U. S. 1 (2023) 45
Thomas, J., dissenting
“ `results' test, rather than an `intent' test”); Chisom v. Roe-
mer, 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 41; 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 ex-
Page Proof Pending Publication
tend indefnitely into the future. See post, at 87–88 (dissent-
ing opinion). But Alabama did not raise that temporal argu-
ment in this Court, and I therefore would not consider it at
this time.
For those reasons, I vote to affrm, and I concur in all but
Part III–B–1 of the Court's opinion.
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 `disastrous
misadventure' of this Court's voting rights jurisprudence.”
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., concurring in
judgment)). What distinguishes them is the uncommon
clarity with which they lay bare the gulf between our “color-
46 ALLEN v. MILLIGAN
Thomas, J., dissenting
blind” Constitution, Plessy v. Ferguson, 163 U. S. 537, 559
(1896) (Harlan, J., dissenting), and “the consciously segre-
gated districting system currently being constructed in the
name of the Voting Rights Act.” Holder, 512 U. S., at 907
(opinion of Thomas, J.). The question presented 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 Constitu-
tion 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 qualifcation or prerequisite to voting or standard, prac-
Page Proof Pending Publication
tice, or procedure.” 52 U. S. C. § 10301(a). I have long been
convinced that those words reach only “enactments that reg-
ulate citizens' access to the ballot or the processes for count-
ing 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).
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
persuasive. See ante, at 39– 40. Whatever words like
“practice” and “procedure” are capable of meaning in a
vacuum, the prohibitions of § 2 apply to practices and proce-
dures that affect “voting” and “the right . . . to vote.”
§ 10301(a). “Vote” and “voting” are defned terms under the
Act, and the Act's defnition plainly focuses on ballot access
and counting:
Cite as: 599 U. S. 1 (2023) 47
Thomas, J., dissenting
“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,
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 offce and propo-
sitions for which votes are received in an election.”
§ 10310(c)(1).
In enacting the original Voting Rights Act in 1965, Congress
copied this defnition 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 practices of
denying such access based on race, and which cannot be con-
strued to authorize so-called vote-dilution claims. See 74
Stat. 91–92 (codifed in relevant part at 52 U. S. C. § 10101(e)).
Page Proof Pending Publication
Title I of the Civil Rights Act of 1964, which cross-referenced
the 1960 Act's defnition of “vote,” likewise protects ballot
access alone and cannot be read to address vote dilution.
See 78 Stat. 241 (codifed in relevant part at 52 U. S. C.
§ 10101(a)). Tellingly, the 1964 Act also used the words
“standard, practice, or procedure” to refer specifcally to vot-
ing qualifcations for individuals and the actions of state and
local offcials in administering such requirements.1 Our en-
tire enterprise of applying § 2 to districting rests on sys-
tematic 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
1
“No person acting under color of law shall . . . in determining whether
any individual is qualifed 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 individu-
als within the same county, parish, or similar political subdivision who
have been found by State offcials to be qualifed to vote.” 52 U. S. C.
§ 10101(a)(2)(A).
48 ALLEN v. MILLIGAN
Thomas, J., dissenting
Committee, 594 U. S. –––, ––– (2021) (describing the “notori-
ous methods” by which, prior to the Voting Rights Act,
States and localities deprived black Americans of the ballot:
“poll taxes, literacy tests, property qualifcations, white pri-
maries, and grandfather clauses” (alterations and internal
quotation marks omitted)).2
Moreover, the majority drastically overstates the stare de-
cisis 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
2
The majority suggests that districting lines are a “ `prerequisite to vot-
ing' ” because they “determin[e] where” voters “cast [their] ballot[s].”
Ante, at 39. 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
Page Proof Pending Publication
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 qualifcations and voter
action that it speaks for itself.
3
The majority chides Alabama for declining to specifcally 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 uncom-
mon for parties to limit their arguments to the question presented. Fur-
ther, while I do not myself believe that the text of § 2 applies to multimem-
ber 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) (ex-
plaining that single-member districts may provide the benchmark when
multimember or at-large systems are challenged, but suggesting no bench-
mark for challenges to single-member districts), or to the historical evolu-
tion of vote-dilution claims. Neither the case from which the 1982 Con-
gress drew § 2(b)'s current operative language, see White v. Regester, 412
U. S. 755, 766 (1973), nor the one it was responding to, Mobile v. Bolden,
446 U. S. 55 (1980), involved single-member districts.
Cite as: 599 U. S. 1 (2023) 49
Thomas, J., dissenting
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
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 thresh-
old showing than a vote-fragmentation challenge to a single-
member district.” Id., at 40. Growe did not consider (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 fawed 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
Page Proof Pending Publication
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 reaffrmation 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
Education, 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 juris-
prudence has led.4
4
Justice Kavanaugh's partial concurrence emphasizes the supposedly
enhanced stare decisis force of statutory-interpretation precedents. See
ante, at 42–43. This emphasis is puzzling in several respects. As an ini-
tial matter, I can perceive no conceptual “basis for applying a heightened
version of stare decisis to statutory-interpretation decisions”; rather, “our
50 ALLEN v. MILLIGAN
Thomas, J., dissenting
II
Even if § 2 applies here, however, Alabama should prevail.
The District Court found that Alabama's congressional dis-
tricting map “dilutes” black residents' votes because, 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) (Easter-
brook, 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 fnding of vote dilution in these cases. The
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). Nor does that approach appear
to have any historical foundation in judicial practice at the founding or for
Page Proof Pending Publication
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 putting those problems aside, any
appeal to heightened statutory stare decisis 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 43, n. 1 (opinion of Kavanaugh, J.). The frst is
their profound tension with the Constitution's hostility to racial classifca-
tions, a tension that Justice Kavanaugh acknowledges and that makes
every § 2 question the reverse side of a corresponding constitutional ques-
tion. See ante, at 45. The second 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 confus-
ing” § 2 case law follows, in any straightforward way, from the statutory
text's high-fown language about the equal openness of political processes.
Merrill v. Milligan, 595 U. S. –––, ––– (2022) (Kavanaugh, J., concurring
in grant of applications for stays).
5
Like the majority, I refer to both courts below as “the District Court”
without distinction.
Cite as: 599 U. S. 1 (2023) 51
Thomas, J., dissenting
only benchmark that can justify it—and the one that the Dis-
trict Court demonstrably applied—is the decidedly nonneu-
tral benchmark of proportional allocation 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 hypo-
thetical, 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, “undi-
luted” benchmark against which to judge a districting plan.
Page Proof Pending Publication
As we recently held in the analogous context of partisan ger-
rymandering, “federal courts are not equipped to apportion
political power as a matter of fairness.” Rucho v. Common
Cause, 588 U. S. –––, ––– (2019). Yet § 2 vote-dilution cases
require nothing less. If § 2 prohibited only intentional racial
discrimination, there would be no diffculty in fnding a clear
and workable rule of decision. 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. Accord-
ingly, a § 2 vote-dilution claim does not simply “as[k] . . . for
the elimination of a racial classifcation.” Rucho, 588 U. S.,
at –––. It asks, instead, “for a fair share of political power
and infuence, with all the justiciability conundrums that en-
tails.” Ibid. Nevertheless, if § 2 applies to single-member
districts, we must accept that some “objective and workable
standard for choosing a reasonable benchmark” exists; other-
wise, single-member districts “cannot be challenged as dilu-
tive under § 2.” Holder, 512 U. S., at 881 (plurality opinion).
52 ALLEN v. MILLIGAN
Thomas, J., dissenting
Given the diverse circumstances of different jurisdictions,
it would be fanciful to expect a one-size-fts-all defnition 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 re-
quires an intensely local appraisal” (citation and internal
quotation marks omitted)). One overriding principle, how-
ever, should be obvious. A proper districting benchmark
must be race neutral: It must not assume, a priori, that an
acceptable plan should include any particular number or pro-
portion 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 politi-
Page Proof Pending Publication
cal 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 offce 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),
with “equal opportunity” serving an ancillary function.6 594
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.
Cite as: 599 U. S. 1 (2023) 53
Thomas, J., dissenting
U. S., at –––. Relying signifcantly on § 2(b)'s disclaimer of
a right to proportional representation, we also held that § 2
does not enact a “freewheeling disparate-impact regime.”
Id., at –––, and n. 14. Brnovich further stressed the value
of “benchmarks with which . . . challenged [electoral] rule[s]
can be compared,” id., at –––, and that “a meaningful com-
parison is essential” in judging the signifcance of any chal-
lenged scheme's racially disparate impact. Id., at –––. To
the extent § 2 applies to districting 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 proportional 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
Page Proof Pending Publication
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 defned in racial terms. Such
a question-begging standard would not answer our prece-
dents' demand for an “objective,” “reasonable benchmark.”
Holder, 512 U. S., at 881 (plurality opinion) (emphasis added).
Nor could any nonneutral benchmark be reconciled with
Brnovich's rejection of a disparate-impact regime or the
text's disclaimer of a right to proportional representation.
594 U. S., at –––, 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
54 ALLEN v. MILLIGAN
Thomas, J., dissenting
may not, absent extraordinary justifcation, segregate citi-
zens on the basis of race in its public parks, buses, golf
courses, beaches, and schools,” the State also “may not sepa-
rate its citizens into different voting districts on the basis of
race.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (citations
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.
398, 401 (2022) (per curiam) (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 signifcant number of voters
within or without a particular district,” Miller, 515 U. S., at
916, or, put another way, whenever “[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-
Page Proof Pending Publication
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 “unnec-
essarily infus[ing] race into virtually every redistricting”
plan. LULAC, 548 U. S., at 446 (opinion of Kennedy, J.); ac-
cord, Bartlett v. Strickland, 556 U. S. 1, 21 (2009) (plurality
opinion). Plainly, however, that “infusion” is the inevitable
result of any race-based benchmark. Any interpretation of
§ 2 that permits courts to condemn enacted districting plans
as dilutive relative to a nonneutral benchmark “would result
in a substantial increase in the number of mandatory dis-
tricts drawn with race as `the predominant factor motivating
the legislature's decision,' ” thus “ `raising serious constitu-
tional questions.' ” Id., at 21–22 (frst quoting 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 benchmark in assessing any
Cite as: 599 U. S. 1 (2023) 55
Thomas, J., dissenting
claim that a districting plan unlawfully dilutes a racial minor-
ity's voting strength.
B
The plaintiffs in these cases seek a “proportional allocation
of political power according to race.” Holder, 512 U. S., at
936 (opinion of Thomas, J.). According to the 2020 census,
black Alabamians account for 27.16% of the State's total pop-
ulation and 25.9% of its voting-age population, both fgures
slightly less than two-sevenths. Of Alabama's seven exist-
ing congressional districts, one, District 7, is majority-black.7
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, includ-
ing Alabama, to create supermajority-black voting districts or face denial
of preclearance.” Alabama Legislative Black Caucus v. Alabama, 575
Page Proof Pending Publication
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 preclear-
ance, see 785 F. Supp., at 1499–1500, there can be little doubt that a similar
ethos dominated that litigation, in which all parties stipulated to the desir-
ability 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 north-
east, where District 7 once encompassed all of Tuscaloosa County and the
more or less rectangular portion of Jefferson County not included in Dis-
trict 6, the 1992 plan drew a long, thin “fnger” that traversed the south-
eastern third of Tuscaloosa County to reach deep into the heart of urban
Birmingham. See Supp. App. 207–208. Of the Jefferson County resi-
dents captured by the “fnger,” 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 unwarranted by § 5 and in-
consistent with the Constitution. But “much damage to the States' con-
gressional and legislative district maps had already been done,” including
in Alabama. Alabama Legislative Black Caucus, 575 U. S., at 299
(Thomas, J., dissenting).
56 ALLEN v. MILLIGAN
Thomas, J., dissenting
These cases were brought to compel “the creation of two
majority-minority congressional districts”—roughly propor-
tional control. 1 App. 135 (emphasis added); see also id., at
314 (“Plaintiffs seek an order . . . ordering a congressional
redistricting plan that includes two majority-Black congres-
sional 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 sorting
the plaintiffs' goal would require. “[A]s a matter of mathe-
matics,” single-member districting “tends to deal out repre-
sentation far short of proportionality to virtually all minori-
ties, from environmentalists in Alaska to Republicans 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
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would require Alabama to aggressively “sort voters on the
basis of race.” Wisconsin Legislature, 595 U. S., at 401.
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
expand District 2 east and west to encompass predominantly
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 majority.
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 Mobile. 8
8
I have included an Appendix, infra, illustrating the plaintiffs' 11 pro-
posed maps. The frst 10 images display the “black-only” voting-age pop-
ulation of census-designated voting districts in relation to the maps' hypo-
Cite as: 599 U. S. 1 (2023) 57
Thomas, J., dissenting
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 congressional
district should be built around. It contains Alabama's only
coastline, its fourth largest city, and the Port of Mobile. Its
physical geography runs north along the Alabama and Mo-
bile Rivers, whose paths District 1 follows. Its economy is
tied to the Gulf—to shipping, shipbuilding, tourism, and com-
mercial fshing. See Brief for Coastal Alabama Partnership
as Amicus Curiae 13–15.
But, for the plaintiffs to secure their majority-black Dis-
Page Proof Pending Publication
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
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 residents
in those communities, and the District Court made no such
fnding. The plaintiffs' maps would thus reduce District 1
to the leftover white communities of the southern fringe of
the State, its shape and constituents defned almost entirely
thetical district lines. The record does not contain a similar illustration
for the 11th map, but a simple visual comparison with the other maps
suffces.
58 ALLEN v. MILLIGAN
Thomas, J., dissenting
by the need to make District 2 majority-black while also re-
taining 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, testifed
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 satisfed did Dr. Duchin then give lower prior-
ity to “contiguity” and “compactness.” Id., at 634. The ar-
chitect of the other seven maps, William Cooper, considered
“minority voting strengt[h]” a “traditional redistricting prin-
cipl[e]” in its own right, id., at 591, and treated “the minority
population in and of itself ” as the paramount community of
interest in his plans, id., at 601.
Statistical evidence also underscored the illustrative maps'
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extreme racial sorting. Another of the plaintiffs' experts,
Dr. Kosuke Imai, computer generated 10,000 districting
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 dis-
trict. Id., at 61. Dr. Imai generated another 20,000 plans
using the same algorithm, but with the additional constraint
that they must contain at least one majority-black district;
none of those plans contained a second majority-black dis-
trict, or even a second district with a black voting-age popu-
lation above 40%. Id., at 54, 67, 71–72. In a similar vein,
Dr. Duchin testifed about an academic study in which she
had randomly “generated 2 million districting plans for Ala-
bama” 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 districts by accident,”
Cite as: 599 U. S. 1 (2023) 59
Thomas, J., dissenting
Dr. Duchin explained, “show[ed] the importance of doing so
on purpose.” Id., at 714.9
The plurality of Justices who join Part III–B–1 of The
Chief Justice's opinion appear to agree that the plaintiffs
could not prove the frst precondition of their statewide vote-
dilution claim—that black Alabamians could constitute a ma-
jority in two “reasonably confgured” districts, Wisconsin
Legislature, 595 U. S., at 402 —by drawing an illustrative
map in which race was predominant. See ante, at 33. That
should be the end of these cases, as the illustrative maps
here are palpable racial gerrymanders. The plaintiffs' ex-
perts 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
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features are: (1) making District 2 majority-black by con-
necting black residents in one metropolitan area (Montgom-
ery) 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 gerrymander,
and rightly so. We would have no diffculty recognizing race
as “the predominant factor motivating [the placement of] sig-
nifcant number[s] of voters within or without” Districts 1, 2,
9
The majority notes that this study used demographic data from the
2010 census, not the 2020 one. That is irrelevant, since the black popula-
tion 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 proportional
representation for any minority, unless achieved “by design,” is a statisti-
cal anomaly in almost all single-member-districting systems. Duchin &
Spencer 764.
60 ALLEN v. MILLIGAN
Thomas, J., dissenting
and 7. Miller, 515 U. S., at 916. The “stark splits in the
racial composition of populations moved into and out of ” Dis-
tricts 1 and 2 would make that obvious. Bethune-Hill, 580
U. S., at 192. So would the manifest absence of any nonra-
cial justifcation 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. (noting that
“pursu[it of] a common redistricting policy toward multiple
districts” may show predominance). That the plan deliv-
ered proportional control for a particular minority—a statis-
tical anomaly that over 2 million race-blind simulations did
not yield and 20,000 race-conscious simulations did not even
approximate—would be still further confrmation.
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 27–28 (discussing cases). As we held in Miller, vis-
ual “bizarreness” is not “a necessary element of the constitu-
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tional 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 signifcance, it
is far from clear that they do not apply here. See ante, at 20. The ten-
drils with which the various versions of illustrative District 2 would cap-
ture black Mobilians are visually striking and are easily recognized as a
racial grab against the backdrop of the State's demography. The District
7 “fnger,” which encircles the black population of the Birmingham metro-
politan area in order to separate them from their white neighbors 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 “fnger” because it
has been present in every districting plan since 1992, including 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 indis-
putable, however, that race predominated in the original creation of the
district, see n. 7, supra, and it is plain that the primary race-neutral justi-
Cite as: 599 U. S. 1 (2023) 61
Thomas, J., dissenting
Nor could such a plan be explained by supposed respect for
the Black Belt. For present purposes, I accept the District
Court's fnding that the Black Belt is a signifcant community
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 congressional dis-
trict, let alone two.11 The black residents needed to popu-
late majority-black versions of Districts 2 and 7 are over-
whelmingly concentrated in the urban counties of Jefferson
(i. e., the Birmingham metropolitan area, with about 290,000
black residents), Mobile (about 152,000 black residents), and
Montgomery (about 134,000 black residents). Id., at 83. Of
the three, only Montgomery County is in the Black Belt.
The plaintiffs' maps, therefore, cannot and do not achieve
their goal of two majority-black districts by “join[ing] to-
gether” the Black Belt, as the majority seems wrongly to
believe. Ante, at 21. Rather, their majority-black districts
are anchored by three separate high-density clusters of black
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residents in three separate metropolitan areas, two of them
outside the Black Belt. The Black Belt's largely rural re-
mainder is then divided between the two districts to the ex-
tent needed to fll out their population numbers with black
majorities in both. Respect for the Black Belt as a com-
munity of interest cannot explain this approach. The only
fcation for the district today must be the State's legitimate interest in
“preserving the cores of prior districts” and the fact that the areas consti-
tuting District 7's core have been grouped together for decades. Karcher
v. Daggett, 462 U. S. 725, 740 (1983); see also id., at 758 (Stevens, J., concur-
ring) (explaining that residents of a political unit “often develop a commu-
nity of interest”). The plaintiffs' maps, however, necessarily would re-
quire the State to assign little weight to core retention with respect to
other districts. There could then be no principled race-neutral justifca-
tion for prioritizing core retention only when it preserved 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.
62 ALLEN v. MILLIGAN
Thomas, J., dissenting
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 congres-
sional districts,” as opposed to “maximiz[ing] the number of
majority-Black districts, or the BVAP [black voting-age pop-
ulation] in any particular majority-Black district.” Single-
ton v. Merrill, 582 F. Supp. 3d 924, 1029–1030 (ND Ala. 2022)
(per curiam). This reasoning shows a profound misunder-
standing of our racial-gerrymandering precedents. As ex-
plained above, what triggers strict scrutiny is the intentional
use of a racial classifcation in placing “a signifcant number
of voters within or without a particular district.” Miller,
515 U. S., at 916. Thus, any plan whose predominant pur-
pose is to achieve a nonnegotiable, predetermined racial tar-
get in a nonnegotiable, predetermined number of districts is
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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.
In affrming the District Court's nonpredominance fnding,
the plurality glosses over these plain legal errors,12 and it
12
The plurality's somewhat elliptical discussion of “the line between ra-
cial predominance and racial consciousness,” ante, at 31, suggests that it
may have fallen into a similar error. To the extent the plurality supposes
that, under our precedents, a State may purposefully sort voters based on
race to some indefnite extent without crossing the line into predominance,
it is wrong, and its predominance analysis would water down decades of
racial-gerrymandering jurisprudence. Our constitutional precedents' line
between racial awareness and racial predominance simply tracks the dis-
tinction between awareness of consequences, on the one hand, and discrim-
inatory purpose, on the other. See Miller, 515 U. S., at 916 (“ `Discrimina-
tory purpose implies more than intent as volition or intent as awareness
of consequences. It implies that the decisionmaker selected or reaffrmed
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 state-
Cite as: 599 U. S. 1 (2023) 63
Thomas, J., dissenting
entirely ignores Dr. Duchin's plans—presumably because her
own explanation of her method sounds too much like text-
book racial predominance. Compare 2 App. 634 (“[A]fter . . .
what I took to be nonnegotiable principles of population bal-
ance and seeking two majority-black districts, after that, I
took contiguity as a requirement and compactness as para-
mount” (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” (empha-
sis 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 considerations”). The plurality thus
affrms the District Court's fnding only in part and with re-
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gard 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 31–32. Such a blinkered view of the issue is
unjustifable. 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 demo-
graphics.” Miller, 515 U. S., at 916. They could only ever
be drawn by a mapmaker whose predominant motive was
ments that § 2 “demands consideration of race,” Abbott v. Perez, 585 U. S.
–––, ––– (2018), 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.
64 ALLEN v. MILLIGAN
Thomas, J., dissenting
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 32–33. Contrary to the plural-
ity's apparent understanding, nothing in Bethune-Hill sug-
gests that “an express racial target” is not highly probative
evidence of racial predominance. 580 U. S., at 192 (placing
“express racial target[s]” alongside “stark splits in the racial
composition of [redistricted] populations” as “relevant dis-
trictwide evidence”). That the Bethune-Hill majority “de-
cline[d]” to act as a “ `court of . . . frst 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 anal-
ysis would doom every illustrative map a § 2 plaintiff “ever
adduced.” Ante, at 33 (emphasis deleted). Rather, it would
mean only that—because § 2 requires a race-neutral bench-
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mark—plaintiffs cannot satisfy their threshold burden of
showing a reasonably confgured alternative plan with a pro-
posal that could only be viewed as a racial gerrymander if
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 ac-
knowledged “reconfgur[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 record
as a whole. Mr. Cooper recognized communities of interest as a tradi-
tional 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 testifed that he considered
“minority voting strengt[h]” to be a “traditional redistricting principl[e]”
in its own right. Id., at 591. His testimony therefore buttresses, rather
than undermines, the conclusion already obvious from the maps them-
selves: Only a mapmaker pursuing a fxed racial target would produce
them.
Cite as: 599 U. S. 1 (2023) 65
Thomas, J., dissenting
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 reasonable redistricting
process in which race did not predominate. It would, on the
other hand, screen out efforts to use § 2 to push racially pro-
portional 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 ra-
cial gerrymander, they cannot have shown that Alabama's
one-majority-black-district map “dilutes” black Alabamians'
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 requiring
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racial predominance, it would not necessarily follow that a
two-majority-black-district map was an appropriate bench-
mark. All that might follow is that the illustrative maps
were reasonably confgured—in other words, that they were
consistent with some reasonable application of traditional
districting criteria in which race did not predominate. 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 ––– – ––– (explaining the
lack of judicially manageable standards for evaluating the
relative fairness of different applications of traditional dis-
tricting 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
66 ALLEN v. MILLIGAN
Thomas, J., dissenting
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 approach
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 compelling
race-neutral reason to elevate such a plan to a benchmark
against which all other plans must be measured. Nothing
in Alabama's geography or demography makes it clearly
the best way, or even a particularly attractive 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 “preserving the cores
of prior districts” and the Gulf Coast community of interest
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in District 1. Karcher v. Daggett, 462 U. S. 725, 740
(1983). And even discounting those interests would not
yield a race-neutral case for treating the plaintiffs' approach
as a suitable benchmark: Absent core retention, there is no
apparent race-neutral reason to insist that District 7 remain
a majority-black district uniting Birmingham'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 foor 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), it is hard to see how the mere possibility of drawing
two majority-black districts could show that a one-district
Cite as: 599 U. S. 1 (2023) 67
Thomas, J., dissenting
map diluted black Alabamians' votes relative to any appro-
priate benchmark.14
D
Given all this, by what benchmark did the District Court
fnd 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 camoufaged by the elaborate vote-
dilution framework we have inherited from Gingles. But
nothing else in that framework or in the District Court's rea-
soning supplies an alternative benchmark capable of explain-
ing the District Court's bottom line: that Alabama's one-
14
The majority points to limitations of Dr. Duchin's and Dr. Imai's algo-
rithms that do not undermine the strong inference from their results to
the conclusion that no two-majority-black-district plan could be an appro-
priate proxy for the undiluted benchmark. Ante, at 33–34, 36–37. I have
already explained why the fact that Dr. Duchin's study used 2010 census
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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 hitting
the plaintiffs' preferred racial target. Next, while it is true that the num-
ber of possible districting plans is extremely large, that does not mean it
is impossible to generate a statistically signifcant sample. Here, for in-
stance, Dr. Imai explained that “10,000 simulated plans” was suffcient to
“yield statistically precise conclusions” and that any higher number 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 34, n. 7. Setting aside that Dr. Duchin never provided the denom-
inator of which those “thousands” were the numerator, it is no wonder
that the algorithms in question generated such maps; as Dr. Duchin ex-
plained, she programmed them with “an algorithmic preference” for “plans
in which there would be a second majority-minority district.” 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 software. What is still lacking
is any justifcation for treating a two-majority-black-district map as a
proxy for the undiluted benchmark.
68 ALLEN v. MILLIGAN
Thomas, J., dissenting
majority-black-district map dilutes black voters' fair share of
political power.
Under Gingles, the majority explains, there are three
“preconditions” to a vote-dilution claim: (1) the relevant “mi-
nority group must be suffciently large and geographically
compact to constitute a majority in a reasonably confgured
district”; (2) the minority group must be “politically cohe-
sive”; and (3) the majority group must “vot[e] suffciently as
a bloc to enable it to defeat the minority's preferred candi-
date[s].” Ante, at 18 (alterations and internal quotation
marks omitted). If these preconditions are satisfed, Gin-
gles instructs courts to “consider the totality of the circum-
stances and to determine, based upon a searching practical
evaluation of the past and present reality, whether the politi-
cal 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
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framework, the District Court merely followed a set of well-
settled, determinate legal principles. But it is widely ac-
knowledged that “Gingles and its progeny have engendered
considerable disagreement and uncertainty regarding the na-
ture and contours of a vote dilution claim,” with commenta-
tors “noting the lack of any `authoritative resolution 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 applica-
tions for stays) (quoting C. Elmendorf, Making Sense of Sec-
tion 2: Of Biased Votes, Unconstitutional 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 membership is a crucial instance of the lack of a
prescribed ideal”).
Cite as: 599 U. S. 1 (2023) 69
Thomas, J., dissenting
The source of this confusion is fundamental: Quite simply,
we have never succeeded in translating the Gingles frame-
work into an objective and workable method of identifying
the undiluted benchmark. The second and third precondi-
tions are all but irrelevant to the task. They essentially col-
lapse 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 candi-
dates under an acceptable system.” Id., at 88 (O'Connor, J.,
concurring in judgment). Perhaps an acceptable system is
one in which the minority simply cannot elect its preferred
candidates; it is, after all, a minority. Rejecting that out-
come as “dilutive” requires a value judgment relative to a
benchmark that polarization alone cannot provide.
The frst Gingles precondition is only marginally more use-
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ful. True, the benchmark in a redistricting challenge must
be “a hypothetical, undiluted plan,” Bossier Parish School
Bd., 520 U. S., at 480, and the frst precondition at least re-
quires plaintiffs to identify some hypothetical alternative
plan. Yet that alternative plan need only be “reasonably
confgured,” and—as explained above—to say that a plan is
reasonable is a far cry from establishing an objective stand-
ard of fairness.
That leaves only the Gingles framework's fnal 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
70 ALLEN v. MILLIGAN
Thomas, J., dissenting
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 re-
moved from the necessary benchmark of a hypothetical, un-
diluted 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 re-
iterating what nobody disputes: that voting in Alabama is
racially polarized, with black voters overwhelmingly pre-
ferring Democrats and white voters largely preferring
Republicans. To rebut the State's argument that this pat-
tern is attributable to politics, not race per se, the court
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noted that Donald Trump (who is white) prevailed over Ben
Carson (who is black) in the 2016 Republican Presidential
primary. Next, the court observed that black candidates
rarely win statewide elections in Alabama and that black
state legislators overwhelmingly come from majority-
minority districts. The court then reviewed Alabama's his-
tory 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 ev-
erything from car ownership to health insurance coverage.
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.
Cite as: 599 U. S. 1 (2023) 71
Thomas, J., dissenting
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 configured
majority-black districts could be drawn, would Alabama'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
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the Gingles framework as a whole offers any principled
answer.
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
discussed above, that benchmark is impossible to square with
what the majority calls § 2(b)'s “robust disclaimer against
proportionality,” ante, at 13, and it runs headlong into grave
constitutional problems. See Parents Involved in Commu-
nity Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 730
(2007) (plurality opinion). Nonetheless, the intuitive pull of
proportionality is undeniable. “Once one accepts the propo-
sition 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 mi-
72 ALLEN v. MILLIGAN
Thomas, J., dissenting
nority in the population and the numbers of seats con-
trolled,” and there is no more logical ratio than direct
proportionality. Holder, 512 U. S., at 902 (opinion of Tho-
mas, J.). Combine that intuitive appeal with the “lack of
any better alternative” identifed in our case law to date, id.,
at 937, and we should not be surprised to learn that propor-
tionality generally explains the results of § 2 cases after the
Gingles preconditions are satisfed. See E. Katz, M. Aisen-
brey, A. Baldwin, E. Cheuse, & A. Weisbrodt, Documenting
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 fnding
a near-perfect correlation between proportionality fndings
and liability results).
Thus, in the absence of an alternative benchmark, the
vote-dilution inquiry has a strong and demonstrated tend-
ency to collapse into a rough two-part test: (1) Does the chal-
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lenged districting plan give the relevant minority group con-
trol of a proportional share of seats? (2) If not, has the
plaintiff shown that some reasonably confgured districting
plan could better approximate proportional control? In this
approach, proportionality is the ultimate benchmark, and the
frst 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'
frst precondition, fnding the plaintiffs' illustrative maps to
be reasonably confgured in part because they “provide[d] a
number of majority-Black districts . . . roughly proportional
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 proportionality and fnding
that it “weigh[ed] decidedly in favor of the plaintiffs.” Id.,
Cite as: 599 U. S. 1 (2023) 73
Thomas, J., dissenting
at 1025. While the District Court disclaimed giving over-
riding signifcance to proportionality, the fact remains that
nothing else in its reasoning provides a logical nexus to its
fnding 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 reme-
dial 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 proportionality: 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 nonethe-
less. 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.
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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 ac-
knowledge 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 pattern of
omissions, the majority obscures the burning question in
these cases. The District Court's vote-dilution fnding can
be justifed only by a racially loaded benchmark—specifcally,
a benchmark of proportional control based on race. Is that
the benchmark the statute demands? The majority fails to
confront this question head on, and it studiously avoids men-
tioning anything that would require it to do so.
The same nonresponsiveness infects the majority's analy-
sis, which is largely devoted to rebutting an argument no-
74 ALLEN v. MILLIGAN
Thomas, J., dissenting
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 23. The State's argument for a race-neutral bench-
mark 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 dilution 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
mapmaking” evidence “is categorically irrelevant” in § 2
cases. Ante, at 36, n. 8. That conclusion, however, is the
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obvious implication of the majority's reasoning and rhetoric.
See ante, at 35 (decrying a “map-comparison test” as “fawed
in its fundamentals” even if it involves concededly “adequate
comparators”); see also ante, at 25–26 (stating that the
“focu[s]” of § 2 analysis is “on the specifc illustrative 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 forecloses any
meaningful use of computer evidence to help locate the undi-
luted benchmark.
There are two critical problems with this fat. The frst,
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
15
The majority lodges a similar accusation against the State's arguments
(or what it takes to be the State's arguments). See ante, at 26 (“Alabama
suggests there is only one `circumstance' that matters—how the State's
Cite as: 599 U. S. 1 (2023) 75
Thomas, J., dissenting
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 ap-
plying § 2's results test to single-member districts. The ma-
jority waxes about the “myriad considerations” that go into
districting, the “diffcult, contestable choices” those consider-
ations require, and how “[n]othing in § 2 provides an answer”
to the question of how well any given algorithm approxi-
mates the correct benchmark. Ante, at 35 (internal quota-
tion 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 fnish line is.” Ante, at 37.
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
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Parish School Bd., 520 U. S., at 480; Holder, 512 U. S., at 881
(plurality opinion). Of course, I would be the last person to
deny that defning the undiluted benchmark is diffcult. 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
35, 37, are inherent in the very enterprise of applying § 2
to single-member districts. Everything the majority says
map stacks up relative to the benchmark” (alteration omitted)). 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 defne 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 dis-
tricting 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).
76 ALLEN v. MILLIGAN
Thomas, J., dissenting
about the diffculty of defning the undiluted benchmark with
computer evidence applies with equal or greater force to the
task of defning 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 principled and objective method
of identifying the undiluted benchmark, Holder, 512 U. S.,
at 885 (plurality opinion), or abandons this enterprise alto-
gether, 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
statutory text and its “equal openness” requirement, the ma-
jority asserts that “[a] district is not equally open . . . when
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minority voters face—unlike their majority peers—bloc vot-
ing along racial lines, arising against the backdrop of sub-
stantial racial discrimination within the State, that renders
a minority vote unequal to a vote by a nonminority voter.”
Ante, at 25. But again, we have held that dilution cannot
be shown without an objective, undiluted benchmark, and
this verbiage offers no guidance for how to determine it.16
Later, the majority asserts that “the Gingles framework it-
self imposes meaningful constraints on proportionality.”
Ante, at 26. But the only constraint on proportionality
the majority articulates is that it is of ten di fficult to
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] . . . un-
equal,” ante, at 25, 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
proportional-control benchmark. See id., at 902, 937.
Cite as: 599 U. S. 1 (2023) 77
Thomas, J., dissenting
achieve—which, quite obviously, is no principled limitation
at all. Ante, at 28–30.
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 ques-
tion on which liability turns is whether a closer approxima-
tion to proportionality is possible under any reasonable ap-
plication of traditional districting criteria.17 This approach,
moreover, is consistent with how the majority describes the
role of plaintiffs' illustrative maps, as well as an unjustifed
practical asymmetry to which its rejection of computer evi-
dence gives rise. Courts are to “focu[s] . . . on the specifc
illustrative maps that a plaintiff adduces,” ante, at 25–26, 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 generate any num-
ber of maps that meet specifed districting criteria and a pre-
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ferred 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 26 (emphasis in original). But the State
may not use algorithmic evidence to suggest that the plain-
tiffs' map is an unsuitable benchmark for comparison—not
even, apparently, if it can prove that the illustrative map
17
Indeed, the majority's attempt to defect this analysis only confrms
its accuracy. The majority stresses that its understanding of Gingles per-
mits the rejection of “plans that would bring States closer to proportional-
ity when those plans violate traditional districting criteria.” Ante, at
29, n. 4 (emphasis added). Justice Kavanaugh, similarly, defends Gin-
gles against the charge of “mandat[ing] a proportional number of majority-
minority districts” by emphasizing that it requires only the creation of
majority-minority districts that are compact and reasonably confgured.
Ante, at 43 (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.
78 ALLEN v. MILLIGAN
Thomas, J., dissenting
is an outlier among “billion[s]” or “trillion[s]” of concededly
“adequate comparators.” Ante, at 35, 37; see also ante, at
36–37 (rejecting sampling algorithms). This arbitrary re-
striction amounts to a thumb on the scale for § 2 plaintiffs—
an unearned presumption that any “reasonable” map they
put forward constitutes a benchmark against which the
State's map can be deemed dilutive. And, once the compari-
son is framed in that way, the only workable rule of decision
is proportionality. See Holder, 512 U. S., at 941–943 (opinion
of Thomas, J.).
By affrming the District Court, the majority thus ap-
proves its benchmark of proportional control limited only by
feasibility, and it entrenches the most perverse tendencies of
our vote-dilution jurisprudence. It guarantees that courts
will continue to approach vote-dilution claims just as the Dis-
trict Court here did: with no principled way of determining
how many seats a minority “should” control and with a
strong temptation to bless every incremental step toward a
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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 confgured, re-
fusing to ground § 2 vote-dilution claims in a race-neutral
benchmark, and affrming a vote-dilution fnding that can
only be justifed 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
Cite as: 599 U. S. 1 (2023) 79
Thomas, J., dissenting
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 –––, strict scrutiny is implicated wher-
ever, as here, § 2 is applied to require a State to adopt or
reject any districting plan on the basis of race. See Bart-
lett, 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 jurisprudence. In sev-
eral cases, we have “assumed” that compliance with § 2 of
the Voting Rights Act could be a compelling state interest,
before proceeding to reject race-predominant plans or dis-
tricts as insuffciently tailored to that asserted interest.
See, e. g., Wisconsin Legislature, 595 U. S., at 401–402; 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
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violate the Constitution, and the slightest refection on frst
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 unconstitutional 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 fow from its authority to “enforce” the Fourteenth and
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 assumed
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 compelling, as the
plaintiffs “d[id] not dispute that compliance with § 5 was a compelling in-
terest at the relevant time.” Id., at 193.
80 ALLEN v. MILLIGAN
Thomas, J., dissenting
Fifteenth Amendments “by appropriate legislation.” Amdt.
14, § 5; Amdt. 15, § 2. Since Congress in 1982 replaced in-
tent with effects as the criterion of liability, however, “a vio-
lation 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 justifed only under Congress' power to
“enact reasonably prophylactic legislation to deter constitu-
tional harm.” Allen v. Cooper, 589 U. S. –––, ––– (2020) (al-
teration and internal quotation marks omitted); see City of
Boerne v. Flores, 521 U. S. 507, 517–529 (1997). Because
Congress' prophylactic-enforcement authority is “remedial,
rather than substantive,” “[t]here must be a congruence and
proportionality between the injury to be prevented or reme-
died 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
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U. S., at 927.
Here, as with everything else in our vote-dilution jurispru-
dence, the task of sound analysis is encumbered by the lack
of clear principles defning § 2 liability in districting. It is
awkward to examine the “congruence” and “proportionality”
of a statutory rule whose very meaning exists in a perpetual
state of uncertainty. The majority makes clear, however,
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 25; accord, Gingles, 478 U. S., at 48 (“The theoretical
basis for [vote-dilution claims] is that where minority and
majority voters consistently prefer different candidates, the
majority, by virtue of its numerical superiority, will regu-
19
While our congruence-and-proportionality cases have focused primar-
ily on the Fourteenth Amendment, they make clear that the same princi-
ples govern “Congress' parallel power to enforce the provisions of the
Fifteenth Amendment.” City of Boerne, 521 U. S., at 518.
Cite as: 599 U. S. 1 (2023) 81
Thomas, J., dissenting
larly 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 confg-
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
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
Reconstruction 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
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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 presumptively for-
bids race-predominant districting, “even for remedial pur-
poses.” Shaw I, 509 U. S., at 657.
These same principles foreclose a construction of the
Amendments that would entitle members of racial minori-
20
This formulation does not specifcally account for the District Court's
fndings under the Senate factors, which, as I have explained, lack any
traceable logical connection to the fnding of a districting wrong or the
need for a districting remedy.
82 ALLEN v. MILLIGAN
Thomas, J., dissenting
ties, qua racial minorities, to have their preferred candidates
win elections. Nor do the Amendments limit the rights of
members of a racial majority to support their preferred can-
didates—regardless of whether minorities prefer different
candidates and of whether “the majority, by virtue of its nu-
merical superiority,” regularly prevails. Gingles, 478 U. S.,
at 48. Nor, fnally, do the Amendments establish a norm of
proportional control of elected offces on the basis of race.
See Parents Involved, 551 U. S., at 730–731 (plurality opin-
ion); Shaw I, 509 U. S., at 657. And these notions are not
merely foreign to the Amendments. Rather, they are radi-
cally inconsistent with the Amendments' command that gov-
ernment treat citizens as individuals and their “goal of a po-
litical 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
applied here, the statute effectively considers it a legal
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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 “identifed a history
and pattern” of actual constitutional violations that, for some
reason, required extraordinary prophylactic remedies. Gar-
rett, 531 U. S., at 368. But the legislative record of the 1982
amendments is devoid of any showing that might justify § 2's
blunt approximation of a “racial register for allocating repre-
sentation 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
Cite as: 599 U. S. 1 (2023) 83
Thomas, J., dissenting
the Committee took to be unconstitutional vote dilution.”
Brnovich, 594 U. S., at ––– (emphasis added). But the Re-
port also showed the Committee's fundamental lack of “con-
cern with whether” those examples refected the “inten-
tional” discrimination required “to raise a constitutional
issue.” Allen, 589 U. S., at –––. The Committee's “princi-
pal reason” for rejecting discriminatory purpose was simply
that it preferred an alternative legal standard; it thought
Mobile's intent test was “the wrong question,” and that
courts should instead ask whether a State's election laws of-
fered minorities “a fair opportunity to participate” in the po-
litical 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 substan-
tive change in the governing law.” City of Boerne, 521
U. S., at 519. It replaces the constitutional right against in-
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tentionally 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
84 ALLEN v. MILLIGAN
Thomas, J., dissenting
scope,” “it simply cannot be said that `many of [the district-
ing plans] affected by the congressional enactment have a
signifcant 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-
circumstances inquiry, a court applying § 2 can always em-
broider its vote-dilution determination with fndings 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 in-
jury it seeks to remedy.” Shaw II, 517 U. S., at 909 (internal
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quotation marks omitted). To justify a statute tending to-
ward the proportional allocation of political power by race
throughout the Nation, it cannot be enough that a court can
recite some indefnite quantum of discrimination in the rele-
vant 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 decision-
making 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-
Cite as: 599 U. S. 1 (2023) 85
Thomas, J., dissenting
American citizens of the State of Alabama,” stipulated that
the State's black population was “ `suffciently compact and
contiguous to comprise a single member signifcant majority
(65% or more) African American Congressional district,' ”
and that, “ `[c]onsequently,' ” such a “ `district should be cre-
ated.' ” Wesch v. Hunt, 785 F. Supp. 1491, 1493, 1498 (SD
Ala.). Accepting that stipulation, the court reworked Dis-
trict 7 into an irregularly shaped supermajority-black dis-
trict—one that scooped up populous clusters of black voters
in the disparate urban centers of Birmingham and Montgom-
ery to connect them across a swath of largely majority-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 Constitution might for-
bid such an extreme racial gerrymander, as it quite obviously
did. But, once District 7 had come into being as a racial
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gerrymander thought necessary to satisfy § 2, it became an
all-but-immovable fxture 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 confgure those urban centers'
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 rea-
sonable desire to maintain the Gulf Coast region as a cohe-
sive 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 reasonable district-
ing outcomes; that Alabama's white voters do not support
the black minority's preferred candidates; that Alabama's ra-
cial climate, taken as a rarefed whole, crosses some indefn-
86 ALLEN v. MILLIGAN
Thomas, J., dissenting
able 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 657.
We indulge the pernicious tendency of assigning Americans
to “creditor” and “debtor race[s],” even to the point of redis-
tributing political power on that basis. Adarand Construc-
tors, Inc. v. Peña, 515 U. S. 200, 239 (1995) (Scalia, J., concur-
ring in part and concurring in judgment). We ensure that
the race-based redistricting we impose on Alabama now will
bear divisive consequences long into the future, just as the
initial creation of District 7 segregated Jefferson County for
decades and minted the template for crafting black “political
homelands” in Alabama. Holder, 512 U. S., at 905 (opinion
of Thomas, J.). We place States in the impossible position
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of having to weigh just how much racial sorting is necessary
to avoid the “competing hazards” of violating § 2 and violat-
ing the Constitution. Abbott, 585 U. S., at ––– (internal quo-
tation marks omitted). We have even put ourselves in the
ridiculous 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
racial lines, we prolong immeasurably the day when the
“sordid 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 unconstitutional.
The majority defects 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, indeed,
predate Congress' adoption of the results test. Ante, at 41.
That maneuver is untenable. Katzenbach upheld § 5's pre-
Cite as: 599 U. S. 1 (2023) 87
Thomas, J., dissenting
clearance requirements, § 4(b)'s original coverage formula,
and other related provisions aimed at “a small number of
States and political subdivisions” where “systematic resist-
ance to the Fifteenth Amendment” had long been fagrant.
383 U. S., at 328; see also id., at 315–317 (describing the lim-
ited 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 Voting Rights Act's
rules wholesale, without considering their individual fea-
tures, or if Katzenbach and City of Rome meant that Con-
gress has plenary power to enact whatever rules it chooses
to characterize as combating “discriminatory . . . effect[s].”
Ante, at 41 (internal quotation marks omitted). Neither
proposition makes any conceptual sense or is consistent with
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our cases. See, e. g., Shelby County, 570 U. S., at 550–557
(holding the 2006 preclearance coverage formula unconstitu-
tional); Northwest Austin Municipal Util. Dist. No. One v.
Holder, 557 U. S. 193, 203 (2009) (emphasizing the distinct-
ness of §§ 2 and 5); City of Boerne, 521 U. S., at 533 (discuss-
ing City of Rome as a paradigm case of congruence-and-
proportionality review of remedial legislation); Miller, 515
U. S., at 927 (stressing that construing § 5 to require “that
States engage in presumptively unconstitutional race-based
districting” would raise “troubling and diffcult constitu-
tional questions,” notwithstanding City of Rome).
In fact, the majority's cases confrm 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 con-
cluded that, because electoral changes by jurisdictions with
a demonstrable history of intentional racial discrimination
88 ALLEN v. MILLIGAN
Thomas, J., dissenting
in voting create the risk of purposeful discrimination, it
was proper to prohibit changes that have a discriminatory
impact.” 446 U. S., at 177 (emphasis added; footnote omit-
ted). The next section of City of Rome then separately ex-
amined 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 signifcant
likelihood of being unconstitutional,” 521 U. S., at 532, partic-
ularly when it employs “termination dates, geographic re-
strictions, or egregious predicates” that “tend to ensure Con-
gress' 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 lim-
iting principles; it is unbounded in time, place, and subject
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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 pro-
portional allocation of political power on the basis of race.
Such a statute “cannot be considered remedial, preventive
legislation,” and the race-based redistricting it would com-
mand 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 foot-
ing is problematic, for he agrees that “race-based redistricting cannot ex-
tend indefnitely into the future.” Ante, at 45 (opinion concurring in
part). Nonetheless, Justice Kavanaugh votes to sustain a system of
institutionalized racial discrimination in districting—under the aegis of a
statute that applies nationwide and has no expiration date—and thus to
Cite as: 599 U. S. 1 (2023) 89
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 qualifcation 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 congressional
districts “are not equally open to participation” by black Ala-
bamians. § 10301(b). The plaintiffs did not even prove that
it is possible to achieve two majority-black districts 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 congressional districts
based on race in a way that exceeds the Federal Judiciary's
ability to recognize as a racial gerrymander with the naked
eye. The District Court held that this showing, plus racially
polarized voting and its gestalt view of Alabama's racial cli-
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mate, was enough to require the State to redraw its district-
ing plan on the basis of race. If that is the benchmark
for vote dilution under § 2, then § 2 is nothing more than a
racial entitlement to roughly proportional control of elective
offces—limited only by feasibility—wherever different racial
groups consistently prefer different 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 fnding 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
prolong the “lasting harm to our society” caused by the use of racial classi-
fcations 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.
90 ALLEN v. MILLIGAN
Thomas, J., dissenting
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
single-member districting plan is not a “voting qualifcation,”
a “prerequisite to voting,” or a “standard, practice, or proce-
dure,” as the Act uses those terms. One way or another,
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 diffculties of defnition
and application. It goes out of its way to reaffrm § 2's appli-
cability to single-member districting plans both as a pur-
ported original matter and on highly exaggerated stare
decisis grounds. It virtually ignores Alabama's primary
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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 plead-
ing to close the door on the hope cherished by some thought-
ful observers, see Gonzalez, 535 F. 3d, at 599–600, that com-
putational redistricting methods might offer a principled,
race-neutral way out of the thicket Gingles carried us into.
Finally, it dismisses grave constitutional questions with an
insupportably broad holding based on demonstrably inappo-
site cases.22
I fnd it diffcult 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
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).
Cite as: 599 U. S. 1 (2023) 91
Thomas, J., dissenting
have done for decades under this Court's superintendence,
joined with a sentiment that it would be unthinkable to dis-
turb 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 courts [have
been] engaged in methodically carving the country into ra-
cially designated electoral districts” for decades now.
Holder, 512 U. S., at 945 (opinion of Thomas, J.). But that
fact should inspire us to repentance, not resignation. I am
even more convinced of the opinion that I formed 29 years
ago:
“In my view, our current practice should not continue.
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 dis-
sembling in our approach to the Act too damaging to
the credibility of the Federal Judiciary. The `inherent
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tension'—indeed, I would call it an irreconcilable con-
fict—between the standards we have adopted for evalu-
ating vote dilution claims and the text of the Voting
Rights Act would itself be suffcient in my view to war-
rant overruling the interpretation of § 2 set out in Gin-
gles. When that obvious confict 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 segregated electoral
districts, I can see no reasonable alternative to abandon-
ing our current unfortunate understanding of the Act.”
Id., at 944.
I respectfully dissent.
92 ALLEN v. MILLIGAN
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Appendix to opinion of Thomas, J.
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Alito, J., dissenting
Justice Alito, with whom Justice Gorsuch joins,
dissenting.
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 Gin-
gles in these cases. But I would interpret that precedent in
a way that heeds what § 2 actually says, and I would take
constitutional requirements into account. When the Gingles
framework is viewed in this way, it is apparent that the deci-
sions below must be vacated.
I
A
Gingles marked the Court's first encounter with the
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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 plaintiff
represents] must be `suffciently large and geographi-
cally compact to constitute a majority' in some reason-
ably confgured legislative district. Second, the minor-
ity group must be `politically cohesive.' And third, a
district's white majority must `vote[ ] suffciently as a
bloc' to usually `defeat the minority's preferred candi-
date.' ” Cooper v. Harris, 581 U. S. 285, 301–302 (2017)
(citations omitted).
See also Wisconsin Legislature v. Wisconsin Elections
Comm'n, 595 U. S. 398, 402 (2022) (per curiam); Merrill v.
96 ALLEN v. MILLIGAN
Alito, J., dissenting
Milligan, 595 U. S. –––, ––– (2022) (Kagan, J., dissenting
from grant of applications for stays).
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 frst Gingles precondition. In cases like these, where
the claim is that § 2 requires the creation of an additional
majority-minority district, the frst precondition means that
the plaintiff must produce an additional illustrative majority-
minority district that is “reasonably confgured.” Cooper,
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581 U. S., at 301; Wisconsin Legislature, 595 U. S., at 402;
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 confgured.” Our
cases make it clear that “reasonably confgured” is not a syn-
onym for “compact.” We have explained that the frst pre-
condition also takes into account other traditional districting
criteria like attempting to avoid the splitting of political sub-
divisions 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 confgured if it
fouts other “traditional districting criteria.” Ante, at 18.
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 pos-
sible, and avoiding the creation of new districts that require
Cite as: 599 U. S. 1 (2023) 97
Alito, J., dissenting
two incumbents to run against each other. Ante, at 20, 34–
35. In addition, the Court acknowledges that a district is
not “reasonably confgured” if it does not comport with the
Equal Protection Clause's one-person, one-vote requirement.
Ante, at 35. 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 understanding of
the frst Gingles precondition would be unmistakable.
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
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 27–28, but we did
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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 fnd 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 munici-
pal 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 dis-
tricts and other marked departures from traditional district-
ing criteria matter because mapmakers usually heed these
criteria, and when it is evident that they have not done so,
there is reason to suspect that something untoward—spe-
cifcally, unconstitutional racial gerrymandering—is afoot.
98 ALLEN v. MILLIGAN
Alito, J., dissenting
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 confguration 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 often held,
race may not “predominate” in the drawing of district 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) (Shaw II); Miller v. John-
son, 515 U. S. 900, 920 (1995).1
Because non-predominance is a longstanding and vital fea-
ture of districting law, it must be honored in a Gingles plain-
tiff's illustrative district. If race predominated in the cre-
ation of such a district, the plaintiff has failed to satisfy both
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our precedent, which requires “reasonably confgured” dis-
tricts, and the terms of § 2, which demand equal openness.
Two Terms ago, we engaged in a close analysis of the text of
§ 2 and explained that its “key requirement” is that the polit-
ical processes leading to nomination or election must be
“ `equally open to participation' by members of a protected
class.” Brnovich v. Democratic National Committee, 594
U. S. –––, ––– (2021) (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 –––.
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
1
Alabama's districting guidelines explicitly incorporate this non-
predominance requirement. See Singleton v. Merrill, 582 F. Supp. 3d
924, 1036 (ND Ala. 2022).
Cite as: 599 U. S. 1 (2023) 99
Alito, J., dissenting
advantage that § 2 does not require and that the Constitution
may forbid. And because the creation of majority-minority
districts is something of a zero-sum endeavor, giving an ad-
vantage 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 outset
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 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 adduc-
ing evidence—in any acceptable form—that race did not
predominate.
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A plaintiff need not offer computer-related evidence.
Once upon a time, legislative maps were drawn without
using a computer, and nothing prevents a § 2 plaintiff from
taking this old-school approach in creating an illustrative dis-
trict. See, e. g., M. Altman, K. McDonald, & M. McDonald,
From Crayons to Computers: The Evolution of Computer
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
100 ALLEN v. MILLIGAN
Alito, J., dissenting
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 con-
sistent with the Constitution. See, e. g., Cooper, 581 U. S.,
at 301 (assuming States have a compelling interest in com-
plying 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 constitu-
tional, and I do not understand the majority's analysis of
Alabama's constitutional claim to suggest otherwise. Ante,
at 41–42; ante, at 45 (Kavanaugh, J., concurring in part).
Our cases make it perfectly clear that using race as a “pre-
dominant factor” in drawing legislative districts is unconsti-
tutional unless the stringent requirements of strict scrutiny
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can be satisfed,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 “predomi-
nant” role, § 2 and the Constitution would be headed for a
collision.
II
When the meaning of a “reasonably confgured” district is
properly understood, it is apparent that the decisions below
must be vacated and that the cases must be remanded for
the application of the proper test. In its analysis of whether
the plaintiffs satisfed the frst Gingles precondition, the
District Court gave much attention to some traditional dis-
tricting criteria—specifcally, compactness and avoiding the
splitting of political subdivisions and communities of inter-
2
Although our cases have posited that racial predominance may be ac-
ceptable if strict scrutiny is satisfed, the Court does not contend that it
is satisfed here.
Cite as: 599 U. S. 1 (2023) 101
Alito, J., dissenting
est—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 defcient.
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 predomi-
nance was deeply fawed. The court began this part of its
opinion with this revealing statement:
“Dr. Duchin and Mr. Cooper [plaintiffs' experts] testifed
that they prioritized race only for the purpose of de-
termining 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,
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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 achiev-
ing 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., metropolitan area, and suppose that one says to the
other, “I'm fexible about where we live, but it has to be in
Maryland. That's non-negotiable.” Could anyone say that
fnding a home in Maryland was not a “predominant” factor
in the couple's search? Or suppose that a person looking for
102 ALLEN v. MILLIGAN
Alito, J., dissenting
a fight tells a travel agent, “It has to be non-stop. That's
non-negotiable.” Could it be said that the number of stops
between the city of origin and the destination was not a “pre-
dominant” factor in the search for a good fight? 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
frst Gingles precondition. The court thought that a § 2
plaintiff cannot proffer a reasonably confgured majority-
minority district without frst attempting to see if it is possi-
ble to create such a district—that is, by frst making the
identifcation of such a district “non-negotiable.” 582 F.
Supp. 3d, at 1030. But that is simply not so. A plaintiff's
expert can frst create maps using only criteria that do not
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give race a predominant role and then determine how many
contain the desired number of majority-minority districts.
One fnal 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 repre-
sentation “in numbers equal to their proportion in the popu-
lation.” 52 U. S. C. § 10301(b). This provision was a critical
component of the compromise that led to the adoption of the
1982 amendments, as the Court unanimously agreed two
Terms ago. See Brnovich, 594 U. S., at –––, and n. 14; id.,
at –––, n. 6 (Kagan, J., dissenting). The District Court's
reasoning contravened this statutory proviso. See ante, at
55–56, 71–73 (Thomas, J., dissenting).
Cite as: 599 U. S. 1 (2023) 103
Alito, 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 character-
ization of that argument is entirely correct, but as applied to
the analysis I have just set out, the Court's criticisms miss
the mark.
A
The major theme of this part of the Court's opinion is that
Alabama's argument, in effect, is that “Gingles must be over-
ruled.” Ante, at 33. 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. 356, 373 (2023) (“ `[T]he
language of an opinion is not always to be parsed as though
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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 focus
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 –––. 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' ”
104 ALLEN v. MILLIGAN
Alito, J., dissenting
to members of all racial groups. Id., at –––. The Gingles
framework should be interpreted 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 decisions
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 “predominant” fac-
tor in legislative districting. “[W]hen statutory language is
susceptible of multiple interpretations, a court may shun an
interpretation that raises serious constitutional doubts and
instead may adopt an alternative that avoids those prob-
lems.” Jennings v. Rodriguez, 583 U. S. –––, ––– (2018).
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 framework in a way that does not set up a confronta-
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tion between § 2 and the Constitution, and understanding the
frst Gingles precondition in the way I have outlined achieves
that result.3
B
The Court's subsidiary criticisms of Alabama's arguments
are likewise inapplicable to my analysis. The Court sug-
gests that the “centerpiece” of Alabama's argument regard-
ing the role race can permissibly play in a plaintiff's illustra-
tive map seeks the imposition of “a new rule.” Ante, at 23,
30. But I would require only what our cases already de-
3
The second and third Gingles preconditions, which concern racially po-
larized voting, cannot contribute to avoiding a clash between § 2 and the
Constitution over racial predominance in the drawing of lines. Those pre-
conditions 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 satisfed anyway. Alabama does not contest that they
are satisfed here.
Cite as: 599 U. S. 1 (2023) 105
Alito, J., dissenting
mand: that all legislative districts be produced without giv-
ing race a “predominant” role.4
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 com-
puter program may assign different values to each tradi-
tional districting criterion. Ante, at 35 (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 `circum-
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stance[ ]' that matters—how the State's map stacks up rela-
tive to the benchmark” maps. Ante, at 26. My analysis,
however, simply follows the Gingles framework, under which
a court must frst determine whether a § 2 plaintiff has satis-
fed three “preconditions” before moving on to consider the
remainder of relevant circumstances. See Growe v. Emi-
son, 507 U. S. 25, 40–41 (1993) (unless plaintiffs establish all
three preconditions, there “neither has been a wrong nor can
be a remedy”).
4
The Court appears to contend that it does not matter if race predomi-
nated in the drawing of these maps because the maps could have been
drawn without race predominating. See ante, at 34–35, n. 7. But of
course, many policies could be selected for race-neutral reasons. They
nonetheless must be assessed under the relevant standard for intentional
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–
266 (1977); Washington v. Davis, 426 U. S. 229, 241–248 (1976).
106 ALLEN v. MILLIGAN
Alito, J., dissenting
IV
As noted, I would vacate and remand for the District
Court to apply the correct understanding of Gingles in the
frst 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 briefy on my understanding of
the relevant evidence in the record as it now stands.
A
In my view, there is strong evidence that race played a
predominant role in the production of the plaintiffs' illustra-
tive maps and that it is most unlikely that a map with more
than one majority-black district could be created without
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
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majority-black districts. See 2 App. 571–572; Supp. App. 59,
72. In fact, in 20,000 of those simulations, Dr. Imai inten-
tionally 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 confgurations in Alabama,
none of which contained a second majority-minority district.
Id., at 710. And the frst team of trained mapmakers 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-
Cite as: 599 U. S. 1 (2023) 107
Alito, J., dissenting
trols certain redistricting criteria and that Dr. Duchin's two-
million-map study was based on 2010 census data, see ante,
at 34–35, and nn. 6–7, but this is unconvincing for several
reasons. It is plaintiffs' burden to produce evidence and sat-
isfy the Gingles preconditions, so if their experts' maps were
defcient, that is no strike against Alabama. And the racial
demographics of the State changed little between 2010 and
2020, Supp. App. 82, which is presumably why Dr. Duchin
herself raised the older study in answering questions about
her work in this litigation, see 2 App. 710. If it was impossi-
ble to draw two such districts in 2010, it surely at least re-
quires 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 trillions”
maps that are possible. See ante, at 36–37. In making this
argument, the Court relies entirely on an amicus brief
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submitted by three computational redistricting experts in
support of the appellees. See Brief for Computational Re-
districting Experts 2, 6, n. 7. These experts' argument con-
cerns 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 fled their main
brief, and it was too late for any experts with contrary views
to submit an amicus brief in support of appellants. Com-
puter simulations are widely used today to make predictions
about many important matters, and I would not place strin-
gent limits on their use in VRA litigation 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 extent 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 frst Gingles
108 ALLEN v. MILLIGAN
Alito, J., dissenting
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 predomi-
nate in the drawing of the plaintiffs' illustrative maps. See
ante, at 30–33. Their conclusion, however, rests on a faulty
view of what non-predominance means.
The plurality's position seems to be that race does not pre-
dominate in the creation of a districting map so long as the
map does not violate other traditional districting criteria
such as compactness, contiguity, equally populated districts,
minimizing county splits, etc. Ibid. But this conclusion 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
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that race predominated because of the legislature's “overrid-
ing 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 is shown that race
was “ `the overriding reason' ” for the selection of a particu-
lar map, “a further showing of `inconsistency between the
enacted plan and traditional redistricting criteria' is unneces-
sary to a fnding 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 numerous and
Cite as: 599 U. S. 1 (2023) 109
Alito, J., dissenting
malleable. . . . By deploying those factors in various combina-
tions and permutations, a [mapmaker] could construct a
plethora of potential maps that look consistent with tradi-
tional, 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
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 con-
cern. If a private plaintiff can demonstrate § 2 liability
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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 prohib-
ited from basing decisions on race. Today's decision unnec-
essarily sets the VRA on a perilous and unfortunate path.
I respectfully dissent.
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
Page Proof Pending Publication
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 6, line 16: “numbers” is deleted
p. 14, line 8 from bottom: “Hillard” is replaced with “Hilliard”
p. 27, line 10 from bottom: “widely” is inserted after “otherwise”
p. 47, line 5: “prerequsite” is replaced with “prerequisite”
p. 90, line 5: “prerequsite” is replaced with “prerequisite”