SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–1086 and 21–1087
_________________
WES ALLEN, ALABAMA SECRETARY OF STATE,
et al., APPELLANTS
21–1086
v.
EVAN MILLIGAN, et al.
on appeal from the united states district
court for the northern district of alabama
WES ALLEN, ALABAMA SECRETARY OF STATE,
et al., PETITIONERS
21–1087
v.
MARCUS CASTER, et al.
on writ of certiorari before judgment to the
united states court of appeals for the eleventh circuit
[June 8, 2023]
Justice Thomas, with whom Justice Gorsuch
joins, with whom Justice Barrett joins as to Parts II and III, and
with whom Justice Alito joins as to Parts II–A and
II–B, dissenting.
These cases “are yet another installment
in the ‘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-blind” Constitution,
Plessy v.
Ferguson,
163 U.S.
537, 559 (1896) (Harlan, J., dissenting), and “the
consciously segregated 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 Constitution would not permit it.
I
At the outset, I would resolve these cases in
a way that would not require the Federal Judiciary to decide the
correct racial apportionment of Alabama’s congressional
seats. Under the statutory text, a §2 challenge must target a
“voting qualification or prerequisite to voting or standard,
practice, or procedure.” 52 U. S. C.
§10301(a). I have long been convinced that those words reach
only “enactments that regulate citizens’ access to the
ballot or the processes for counting a ballot”; they
“do not include a State’s . . . choice of one
districting scheme over another.”
Holder, 512
U. S., at 945 (opinion of Thomas, J.). “Thus, §2
cannot provide a basis for invalidating any district.”
Abbott v.
Perez, 585 U. S. ___, ___ (2018)
(Thomas, J., concurring) (slip op., at 1).
While I will not repeat all the arguments that
led me to this conclusion nearly three decades ago, see
Holder, 512 U. S., at 914–930 (opinion concurring
in judgment), the Court’s belated appeal to the statutory
text is not persuasive. See
ante, at 31–32. Whatever
words like “practice” and “procedure” are
capable of meaning in a vacuum, the prohibitions
of §2
apply to practices and procedures that affect “voting”
and “the right . . . to vote.”
§10301(a). “Vote” and “voting” are
defined terms under the Act, and the Act’s definition plainly
focuses on ballot access and counting:
“The terms ‘vote’ or
‘voting’ shall include all action necessary to make a
vote effective in any primary, special, 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 included in the appropriate totals of votes cast with respect
to candidates for public or party office and propositions for which
votes are received in an election.” §10310(c)(1).
In enacting the original Voting Rights Act in
1965, Congress copied this definition almost verbatim from Title VI
of the Civil Rights Act of 1960—a law designed to protect
access to the ballot in jurisdictions with patterns or practices of
denying such access based on race, and which cannot be construed to
authorize so-called vote-dilution claims. See 74Stat. 91–92
(codified in relevant part at 52 U. S. C.
§10101(e)). Title I of the Civil Rights Act of 1964, which
cross-referenced the 1960 Act’s definition of
“vote,” likewise protects ballot access alone and
cannot be read to address vote dilution. See 78Stat. 241 (codified
in relevant part at 52 U. S. C. §10101(a)).
Tellingly, the 1964 Act also used the words “standard,
practice, or procedure” to refer specifically to voting
qualifications for individuals and the actions of state and local
officials in administering such requirements.[
1] Our entire enterprise of applying §2 to
districting rests on systematic neglect of these statutory
antecedents and, more broadly, of the ballot-access focus of the
1960s’ voting-rights struggles. See,
e.g.,
Brnovich v.
Democratic National Committee, 594
U. S. ___, ___ (2021) (slip op., at 2) (describing the
“notorious methods” by which, prior to the
Voting Rights Act, States and localities
deprived black Americans of the ballot: “poll taxes, literacy
tests, property qualifications, white primaries, and grandfather
clauses” (alterations and internal quotation marks
omitted)).[
2]
Moreover, the majority drastically overstates
the
stare decisis support for applying §2 to
single-member districting plans like the one at issue
here.[
3] As the majority
implicitly acknowledges, this Court has only applied §2 to
invalidate one single-member district in one case. See
League of
United Latin American Citizens v.
Perry,
548 U.S.
399, 447 (2006) (
LULAC) (opinion of Kennedy, J.). And no
party in that case argued that the plaintiffs’ vote-dilution
claim was not cognizable. As for
Growe v.
Emison,
507 U.S.
25 (1993), it held only that the threshold preconditions for
challenging multimember and at-large plans must limit challenges to
single-member districts with
at least the same force, as
“[i]t would be peculiar [if] a vote-dilution challenge to the
(more dangerous) multimember district require[d] a higher threshold
showing than a vote-fragmentation challenge to a single-member
district.”
Id., at 40.
Growe did not 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 reconsidering a line of cases that “was based on a
flawed method of statutory construction from its inception,”
has proved incapable of principled application after nearly four
decades of experience, and puts federal courts in the business of
“methodically carving the country into racially designated
electoral districts.”
Holder, 512 U. S., at 945
(opinion of Thomas, J.). This Court has “never applied
stare decisis mechanically to prohibit overruling our
earlier decisions determining the meaning of statutes,” and
it should not do so here.
Monell v.
New York City Dept.
of Social Servs.,
436 U.S.
658, 695 (1978).
Stare decisis did not save
“separate but equal,” despite its repeated
reaffirmation in this Court and the pervasive reliance States had
placed upon it for decades. 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 jurisprudence has
led.[
4]
II
Even if §2 applies here, however, Alabama
should prevail. The District Court found that Alabama’s
congressional districting 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) (Easterbrook, C. J.). Neither the District
Court nor the majority has any defensible answer. The text of
§2 and the logic of vote-dilution claims require a
meaningfully race-neutral benchmark, and no race-neutral benchmark
can justify the District Court’s finding of vote dilution in
these cases. The only benchmark that can justify it—and the
one that the District Court demonstrably applied—is the
decidedly nonneutral benchmark of proportional allocation of
political power based on race.
A
As we have long recognized, “the very
concept of vote dilution implies—and, indeed,
necessitates—the existence of an ‘undiluted’
practice against which the fact of dilution may be measured.”
Reno v.
Bossier Parish School Bd.,
520 U.S.
471, 480 (1997). In a challenge to a districting plan, a court
must be able to compare a State’s enacted plan with “a
hypothetical, undiluted plan,”
ibid., ascertained by
an “objective and workable standard.”
Holder,
512 U. S., at 881 (plurality opinion); see also
id., at
887 (opinion of O’Connor, J.) (noting the “general
agreement” on this point).
To be sure, it is no easy task to identify an
objective, “undiluted” benchmark against which to judge
a districting plan. As we recently held in the analogous context of
partisan gerrymandering, “federal courts are not equipped to
apportion political power as a matter of fairness.”
Rucho v.
Common Cause, 588 U. S. ___, ___ (2019)
(slip op., at 17). Yet §2 vote-dilution cases require nothing
less. If §2 prohibited only intentional racial discrimination,
there would be no difficulty in finding 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.
Accordingly, a §2 vote-dilution claim does not simply
“as[k] . . . for the elimination of a racial
classification.”
Rucho, 588 U. S., at ___ (slip
op., at 21). It asks, instead, “for a fair share of political
power and influence, with all the justiciability conundrums that
entails.”
Ibid. Nevertheless, if §2 applies to
single-member districts, we must accept that some “objective
and workable standard for choosing a reasonable benchmark”
exists; otherwise, single-member districts “cannot be
challenged as dilutive under §2.”
Holder, 512
U. S., at 881 (plurality opinion).
Given the diverse circumstances of different
jurisdictions, it would be fanciful to expect a one-size-fits-all
definition of the appropriate benchmark. Cf.
Thornburg v.
Gingles,
478 U.S.
30, 79 (1986) (explaining that the vote-dilution inquiry
“is peculiarly dependent upon the facts of each case and
requires an intensely local appraisal” (citation and internal
quotation marks omitted)). One overriding principle, however,
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 proportion
of minority-controlled districts.
I begin with §2’s text. As relevant
here, §2(a) prohibits a State from “impos[ing] or
appl[ying]” any electoral rule “in a manner which
results in a denial or abridgement of the right . . . to
vote on account of race or color.” §10301(a). Section
2(b) then provides that §2(a) is violated
“if, based on the totality of
circumstances, . . . the political processes leading to
nomination or election in the State . . . are not equally
open to participation by members 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
representatives of their choice. The extent to which members of a
protected class have been elected to office in the State
. .
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 openness” requirement is “the core”
and “touchstone” of §2(b),
with “equal opportunity” serving an
ancillary function.[
6] 594
U. S., at ___ (slip op., at 15). Relying significantly on
§2(b)’s disclaimer of a right to proportional
representation, we also held that §2 does not enact a
“freewheeling disparate-impact regime.”
Id., at
___, and n. 14 (slip op., at 22, and n. 14).
Brnovich
further stressed the value of “benchmarks with which
. . . challenged [electoral] rule[s] can be
compared,”
id., at ___ (slip op., at 17), and that
“a meaningful comparison is essential” in judging the
significance of any challenged scheme’s racially disparate
impact.
Id., at ___ (slip op., at 18). 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 possible using a benchmark that builds in a
presumption in favor of minority-controlled districts. Indeed, any
benchmark other than a race-neutral one would render the
vote-dilution inquiry fundamentally circular, allowing courts to
conclude that a districting plan “dilutes” a
minority’s voting strength “on account of race”
merely because it does not measure up to an ideal already defined
in racial terms. Such a question-begging standard would not answer
our precedents’ demand for an “
objective,”
“reasonable 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 (slip op., at 22, and n.
14).
There is yet another compelling reason to insist
on a race-neutral benchmark. “The Constitution abhors
classifications based on race.”
Grutter v.
Bollinger,
539 U.S.
306, 353 (2003) (Thomas, J., concurring in part and dissenting
in part). Redistricting is no exception. “Just as the State
may not, absent extraordinary justification, segregate citizens on
the basis of race in its public parks, buses, golf courses,
beaches, and schools,” the State also “may not separate
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. ___, ___ (2022)
(
per curiam) (slip op., at 2) (quoting
Shaw v.
Reno,
509 U.S.
630, 643 (1993) (
Shaw I)). Accordingly, our precedents
apply strict scrutiny whenever race was “the predominant
factor motivating [the placement of] a significant 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 purposes, 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 “unnecessarily infus[ing] race
into virtually every redistricting” plan.
LULAC, 548
U. S., at 446 (opinion of Kennedy, J.); accord,
Bartlett v.
Strickland,
556 U.S.
1, 21 (2009) (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 districts drawn with race as ‘the
predominant factor motivating the legislature’s
decision,’ ” thus “ ‘raising
serious constitutional questions.’ ”
Id.,
at 21–22 (first 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 claim that a
districting plan unlawfully dilutes a racial minority’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 population and 25.9% of its
voting-age population, both figures slightly less than
two-sevenths. Of Alabama’s seven existing congressional
districts, one, District 7, is majority-black.[
7] These cases were brought to compel “the
creation of
two majority-minority congressional
districts”—roughly proportional 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 congressional
districts”).
Remarkably, the majority fails to acknowledge
that two minority-controlled districts would mean proportionality,
or even that black Alabamians are about two-sevenths of the State.
Yet that context is critical to the issues before us, not least
because it explains the extent of the racial sorting the
plaintiffs’ goal would require. “[A]s a matter of
mathematics,” single-member districting “tends to deal
out representation far short of proportionality to virtually
all minorities, from environmentalists in Alaska to
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 would require Alabama to aggressively “sort voters
on the basis of race.”
Wisconsin Legislature, 595
U. S., at ___ (slip op., at 2).
The plaintiffs’ 11 illustrative maps make
that clear. All 11 maps refashion existing District 2 into a
majority-black district while preserving the current black majority
in District 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] 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 Mobile Rivers, whose paths
District 1 follows. Its economy is tied to the Gulf—to
shipping, shipbuilding, tourism, and commercial fishing. See Brief
for Coastal Alabama Partnership as
Amicus Curiae
13–15.
But, for the plaintiffs to secure their
majority-black District 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 eastward 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 finding. The plaintiffs’ maps
would thus reduce District 1 to the leftover white communities of
the southern fringe of the State, its shape and constituents
defined almost entirely by the need to make District 2
majority-black while also retaining a majority-black District
7.
The plaintiffs’ mapmaking experts left
little doubt that their plans prioritized race over neutral
districting criteria. Dr. Moon Duchin, who devised four of the
plans, testified that achieving “two majority-black
districts” was a “nonnegotiable 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
“nonnegotiable[s]” were satisfied did Dr. Duchin then
give lower priority to “contiguity” and
“compactness.”
Id., at 634. The architect of the
other seven maps, William Cooper, considered “minority voting
strengt[h]” a “traditional redistricting
principl[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’ 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
district.
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 district, or even
a second district with a black voting-age population above 40%.
Id., at 54, 67, 71–72. In a similar vein, Dr. Duchin
testified about an academic study in which she had randomly
“generated 2 million districting plans for Alabama”
using a race-neutral algorithm that gave priority to compactness
and contiguity. 2 App. 710; see Duchin & Spencer 765. She
“found some [plans] with one majority-black district, but
never found a second . . . majority-black district in 2
million attempts.” 2 App. 710. “[T]hat it is hard to
draw two majority-black districts by accident,” 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–I of The Chief Justice’s opinion appear to
agree that the plaintiffs could not prove the first precondition of
their statewide vote-dilution claim—that black Alabamians
could constitute a majority in two “reasonably
configured” districts,
Wisconsin Legislature, 595
U. S., at ___ (slip op., at 3)—by drawing an
illustrative map in which race was predominant. See
ante, at
25. That should be the end of these cases, as the illustrative maps
here are palpable racial gerrymanders. The plaintiffs’
experts clearly applied “express racial target[s]” by
setting out to create 50%-plus majority-black districts in both
Districts 2 and 7.
Bethune-Hill v.
Virginia State Bd. of
Elections, 580 U.S. 178, 192 (2017). And it is impossible to
conceive of
the State adopting the illustrative maps without
pursuing the same racially motivated goals. Again, the maps’
key design features are: (1) making District 2 majority-black by
connecting black residents in one metropolitan area (Montgomery)
with parts of the rural Black Belt and black residents in another
metropolitan area (Mobile); (2) leaving enough of the Black
Belt’s majority-black rural areas for District 7 to maintain
its majority-black status; and (3) reducing District 1 to the white
remainder of the southern third of the State.
If the State did this, we would call it a racial
gerrymander, and rightly so. We would have no difficulty
recognizing race as “the predominant factor motivating [the
placement of] significant number[s] of voters within or
without” Districts 1, 2, and 7.
Miller, 515
U. S., at 916. The “stark splits in the racial
composition of populations moved into and out of ”
Districts 1 and 2 would make that obvious.
Bethune-Hill, 580
U. S., at 192. So would the manifest absence of any nonracial
justification for the new District 1. And so would the
State’s clear intent to ensure that
both Districts 2
and 7 hit their preordained racial targets. See
ibid.
(noting that “pursu[it of] a common redistricting policy
toward multiple districts” may show predominance). That the
plan delivered proportional control for a particular
minority—a statistical anomaly that over 2 million race-blind
simulations did not yield and 20,000
race-conscious
simulations did not even approximate—would be still further
confirmation.
The State could not justify such a plan simply
by arguing that it was less bizarre to the naked eye than other,
more elaborate racial gerrymanders we have encountered. See
ante, at 19–20 (discussing cases). As we held in
Miller, visual “bizarreness” is not “a
necessary element of the constitutional wrong,” only
“persuasive circumstantial evidence.” 515 U. S.,
at 912–913.[
10]
Nor could such a plan be explained by supposed
respect for the Black Belt. For present purposes, I accept the
District Court’s finding that the Black Belt is a significant
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
district, let alone two.[
11]
The black residents needed to populate majority-black versions of
Districts 2 and 7 are overwhelmingly concentrated in the urban
counties of 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] together” the Black Belt, as the majority
seems wrongly to believe.
Ante, at 13. Rather, their
majority-black districts are anchored by three separate
high-density clusters of black residents in three separate
metropolitan areas, two of them outside the Black Belt. The Black
Belt’s largely rural remainder is then
divided between
the two districts to the extent needed to fill out their population
numbers with black majorities in both. Respect for the Black Belt
as a community of interest cannot explain this approach. The only
explanation is the plaintiffs’ express racial target: two
majority-black districts and statewide proportionality.
The District Court nonetheless found that race
did not predominate in the plaintiffs’ illustrative maps
because Dr. Duchin and Mr. Cooper “prioritized race only as
necessary . . . to draw two reasonably compact
majority-Black congressional districts,” as opposed to
“maximiz[ing] the number of majority-Black districts, or the
BVAP [black voting-age population] in any particular majority-Black
district.”
Singleton v.
Merrill, 582
F. Supp. 3d 924, 1029–1030 (ND Ala. 2022)
(
per curiam). This reasoning shows a profound
misunderstanding of our racial-gerrymandering precedents. As
explained above, what triggers strict scrutiny is the intentional
use of a racial classification in placing “a significant
number of voters within or without a particular district.”
Miller, 515 U. S., at 916. Thus,
any plan whose
predominant purpose is to achieve a nonnegotiable, predetermined
racial target in a nonnegotiable, predetermined number of districts
is a racial gerrymander subject to strict scrutiny. The precise
fraction used as the racial target, and the number of districts it
is applied to, are irrelevant.
In affirming the District Court’s
nonpredominance finding, the plurality glosses over these plain
legal errors,[
12] and it
entirely ignores Dr. Duchin’s plans—presumably because
her own explanation of her method sounds too much like textbook
racial predominance. Compare 2 App. 634 (“[A]fter
. . . what I took to be
nonnegotiable principles
of population balance
and seeking two majority-black
districts,
after that, I took contiguity as a
requirement and compactness as paramount” (emphasis added))
and
id., at 635 (“I took . . . county
integrity to take precedence over the level of [black voting-age
population]
once that level was past 50 percent”
(emphasis added)), with
Bethune-Hill, 580 U. S., at 189
(explaining that race predominates when it “ ‘was
the criterion that . . . could not be compromised,’
and race-neutral considerations ‘came into play only after
the race-based decision had been made’ ” (quoting
Shaw II, 517 U. S., at 907)), and
Miller, 515
U. S., at 916 (explaining that race predominates when
“the [mapmaker] subordinated traditional race-neutral
districting principles . . . to racial
considerations”). The plurality thus affirms the District
Court’s finding only in part and with regard to Mr.
Cooper’s plans alone.
In doing so, the plurality acts as if the only
relevant evidence were Mr. Cooper’s testimony about his own
mental state and the State’s expert’s analysis of Mr.
Cooper’s maps. See
ante, at 23–24. Such a
blinkered view of the issue is unjustifiable. All 11 illustrative
maps follow the same approach to creating two majority-black
districts. The essential design features of Mr. Cooper’s maps
are indistinguishable from Dr. Duchin’s, and it is those very
design features that would require race to predominate. None of the
plaintiffs’ maps could possibly be drawn by a mapmaker who
was merely “aware of,” rather than motivated by,
“racial demographics.”
Miller, 515 U. S.,
at 916. They could only ever be drawn by a mapmaker whose
predominant motive was hitting the “express racial
target” of two majority-black districts.
Bethune-Hill,
580 U. S., at 192.[
13]
The plurality endeavors in vain to blunt the
force of this obvious fact. See
ante, at 24–25.
Contrary to the plurality’s apparent understanding, nothing
in
Bethune-Hill suggests 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
districtwide evidence”). That the
Bethune-Hill
majority “decline[d]” to act as a
“ ‘court of . . . first
view,’ ” instead leaving the ultimate issue of
predominance for remand, cannot be transmuted into such an
implausible holding or, in truth, any holding at all.
Id.,
at 193.
The plurality is also mistaken that my
predominance analysis would doom every illustrative map a §2
plaintiff “ever adduced.”
Ante, at 25 (emphasis
deleted). Rather, it would mean only that—because §2
requires a race-neutral benchmark—plaintiffs cannot satisfy
their threshold burden of showing a reasonably configured
alternative plan with a proposal that could only be viewed as a
racial gerrymander if enacted by the State. This rule would not bar
a showing, in an appropriate case, that a State could create an
additional majority-minority district through a reasonable
redistricting process in which race did not predominate. It would,
on the other hand, screen out efforts to use §2 to push
racially proportional districting to the limits of what a
State’s geography and demography make possible—the
approach taken by the illustrative maps here.
C
The foregoing analysis should be enough to
resolve these cases: If the plaintiffs have not shown that Alabama
could create two majority-black districts without resorting to a
racial gerrymander, they cannot have shown that 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
racial predominance, it would not necessarily follow that a
two-majority-black-district map was an appropriate benchmark. All
that might follow is that the illustrative maps were reasonably
configured—in other words, that they were consistent with
some reasonable application of traditional districting criteria in
which race did not 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 ___–___ (slip op., at
19–20) (explaining the lack of judicially manageable
standards for evaluating the relative fairness of different
applications of traditional districting criteria).
That conceptual gap—between
“reasonable” and “benchmark”—is
highly relevant here. Suppose, for argument’s sake, that
Alabama
reasonably could decide to create two majority-black
districts by (1) connecting Montgomery’s black residents with
Mobile’s black residents, (2) dividing up the rural parts of
the Black Belt between that district and another district with its
population core in the majority-black parts of the Birmingham area,
and (3) accepting the extreme disruption to District 1 and the Gulf
Coast that this approach would require. The plaintiffs prefer that
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 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 floor did not yield a second district
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 districting plans,
Rucho, 588 U. S., at
___ (Kagan, J., dissenting) (slip op., at 19), it is hard to see
how the mere possibility of drawing two majority-black districts
could show that a one-district map diluted black Alabamians’
votes relative to any appropriate benchmark.[
14]
D
Given all this, by what benchmark did the
District Court find that Alabama’s enacted plan was dilutive?
The answer is as simple as it is unlawful: The District Court
applied a benchmark of proportional control based on race. To be
sure, that benchmark was camouflaged by the elaborate vote-dilution
framework we have inherited from
Gingles. But nothing else
in that framework or in the District Court’s reasoning
supplies an alternative benchmark capable of explaining the
District Court’s bottom line: that Alabama’s
one-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 “minority group must be sufficiently
large and geographically compact to constitute a majority in a
reasonably configured district”; (2) the minority group must
be “politically cohesive”; and (3) the majority group
must “vot[e] sufficiently as a bloc to enable it to defeat
the minority’s preferred candidate[s].”
Ante, at
10 (alterations and internal quotation marks omitted). If these
preconditions are satisfied,
Gingles instructs courts to
“consider the totality of the circumstances and to determine,
based upon a searching practical evaluation of the past and present
reality, whether the political process is equally open to minority
voters.” 478 U. S., at 79 (citation and internal
quotation marks omitted).
The majority gives the impression that, in
applying this framework, the District Court merely followed a set
of well-settled, determinate legal principles. But it is widely
acknowledged that “
Gingles and its progeny have
engendered considerable disagreement and uncertainty regarding the
nature and contours of a vote dilution claim,” with
commentators “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
applications for stays) (slip op., at 1–2) (quoting C.
Elmendorf, Making Sense of Section 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”).
The source of this confusion is fundamental:
Quite simply, we have never succeeded in translating the
Gingles framework into an objective and workable method of
identifying the undiluted benchmark. The second and third
preconditions are all but irrelevant to the task. They essentially
collapse into one question: Is voting racially polarized such that
minority-preferred candidates consistently lose to
majority-preferred ones? See
Gingles, 478 U. S., at 51.
Even if the answer is yes, that tells a court nothing about
“how hard it ‘should’ be for minority voters to
elect their preferred candidates under an acceptable system.”
Id., at 88 (O’Connor, J., concurring in judgment).
Perhaps an acceptable system is one in which the minority simply
cannot elect its preferred candidates; it is, after all, a
minority. Rejecting that outcome as “dilutive” requires
a value judgment relative to a benchmark that polarization alone
cannot provide.
The first
Gingles precondition is only
marginally more useful. True, the benchmark in a redistricting
challenge must be “a hypothetical, undiluted plan,”
Bossier Parish School Bd., 520 U. S., at 480, and the
first precondition at least requires plaintiffs to identify
some hypothetical alternative plan. Yet that alternative
plan need only be “reasonably configured,” and—as
explained above—to say that a plan is
reasonable is a
far cry from establishing an objective standard of fairness.
That leaves only the
Gingles
framework’s final stage: the totality-of-circumstances
determination whether a State’s “political process is
equally open to minority voters.” 478 U. S., at 79. But
this formulation is mere verbiage unless one knows what an
“equally open” system should look like—in other
words, what the benchmark is. And, our cases offer no substantive
guidance on how to identify the undiluted benchmark at the totality
stage. The best they have to offer is a grab bag of amorphous
“factors”—widely known as the Senate factors,
after the Senate Judiciary Committee Report accompanying the 1982
amendments to §2—that
Gingles said
“typically may be relevant to a §2 claim.” See
id., at 44–45. Those factors, however, amount to no
more than “a list of possible considerations that might be
consulted by a court attempting to develop a
gestalt view of
the political and racial climate in a jurisdiction.”
Holder, 512 U. S., at 938 (opinion of Thomas, J.). Such
a
gestalt view is far removed from the necessary benchmark
of a hypothetical, undiluted districting plan.
To see this, one need only consider the District
Court’s use of the Senate factors here. See 582 F. Supp.
3d, at 1018–1024. The court began its totality-stage analysis
by reiterating what nobody disputes: that voting in Alabama is
racially polarized, with black voters overwhelmingly preferring
Democrats and white voters largely preferring Republicans. To rebut
the State’s argument that this pattern is attributable to
politics, not race
per se, the court noted that Donald
Trump (who is white) prevailed over Ben 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 history of racial discrimination, noted other
voting-rights cases in which the State was found liable, and
cataloged socioeconomic disparities between black and white
Alabamians in everything 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.
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 Alabama’s congressional seats
that black voters who support Democrats “should”
control? Neither the Senate factors nor the
Gingles
framework as a whole offers any principled 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 proportion to the minority group’s percentage in the
population.”
Holder, 512 U. S., at 937 (opinion
of Thomas, J.). True, as disussed above, that benchmark is
impossible to square with what the majority calls
§2(b)’s “robust disclaimer against
proportionality,”
ante, at 5, and it runs headlong
into grave constitutional problems. See
Parents Involved in
Community Schools v.
Seattle School Dist. No. 1,
551 U.S.
701, 730 (2007) (plurality opinion). Nonetheless, the intuitive
pull of proportionality is undeniable. “Once one accepts the
proposition that the effectiveness of votes is measured in terms of
the control of seats, the core of any vote dilution claim”
“is inherently based on ratios between the numbers of the
minority in the population and the numbers of seats
controlled,” and there is no more logical ratio than direct
proportionality.
Holder, 512 U. S., at 902 (opinion of
Thomas, J.). Combine that intuitive appeal with the “lack of
any better alternative” identified in our case law to date,
id., at 937, and we should not be surprised to learn that
proportionality generally explains the results of §2 cases
after the
Gingles preconditions are satisfied. See E. Katz,
M. Aisenbrey, 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 finding a near-perfect correlation between
proportionality findings and liability results).
Thus, in the absence of an alternative
benchmark, the vote-dilution inquiry has a strong and demonstrated
tendency to collapse into a rough two-part test: (1) Does the
challenged districting plan give the relevant minority group
control of a proportional share of seats? (2) If not, has the
plaintiff shown that some reasonably configured districting plan
could better approximate proportional control? In this approach,
proportionality is the ultimate benchmark, and the first
Gingles precondition becomes a proxy for whether that
benchmark is reasonably attainable in practice.
Beneath all the trappings of the
Gingles
framework, that two-part test describes how the District Court
applied §2 here. The gravitational force of proportionality is
obvious throughout its opinion. At the front end, the District
Court even built proportionality into its understanding of
Gingles’ first precondition, finding the
plaintiffs’ illustrative maps to be reasonably configured in
part
because they “provide[d] a number of
majority-Black districts . . . roughly 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
finding that it “weigh[ed] decidedly in favor of the
plaintiffs.”
Id., at 1025. While the District Court
disclaimed giving overriding significance to proportionality, the
fact remains that nothing else in its reasoning provides a logical
nexus to its finding of a districting wrong and a need for a
districting remedy. Finally, as if to leave no doubt about its
implicit benchmark, the court admonished the State that “any
remedial plan will need to include two districts in which Black
voters either comprise a voting-age majority or something quite
close.”
Id., at 1033. In sum, the District
Court’s thinly disguised benchmark was 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 nonetheless. As explained earlier, any principled application
of §2 to cases such as these requires a meaningfully
race-neutral benchmark. The benchmark cannot be an
a priori thumb on the scale for racially proportional
control.
E
The majority opinion does not acknowledge the
District Court’s express proportionality-based reasoning.
That omission is of a piece with its earlier noted failures to
acknowledge the well-known indeterminacy of the
Gingles
framework, that black Alabamians are about two-sevenths of the
State’s population, and that the plaintiffs here are thus
seeking statewide proportionality. Through this pattern of
omissions, the majority obscures the burning question in these
cases. The District Court’s vote-dilution finding can be
justified only by a racially loaded benchmark—specifically, a
benchmark of proportional control based on race. Is that the
benchmark the statute demands? The majority fails to confront this
question head on, and it studiously avoids mentioning anything that
would require it to do so.
The same nonresponsiveness infects the
majority’s analysis, which is largely devoted to rebutting an
argument nobody makes. Contrary to the majority’s telling,
Alabama does not equate the “race-neutral benchmark”
with “the median or average number of majority-minority
districts” in a large computer-generated set of race-blind
districting plans.
Ante, at 15. The State’s argument
for a race-neutral benchmark is rooted in the text of §2, the
logic of vote- dilution claims, and the constitutional problems
with any nonneutral benchmark. See Brief for Appellants
32–46. It then relies on the computer evidence in these
cases, among other facts, to argue that the plaintiffs have not
shown 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 perfunctory footnote, it disclaims any holding that
“algorithmic map making” evidence “is
categorically irrelevant” in §2 cases.
Ante, at
28, n. 8. That conclusion, however, is the obvious implication
of the majority’s reasoning and rhetoric. See
ante, at
27 (decrying a “map-comparison test” as “flawed
in its fundamentals” even if it involves concededly
“adequate comparators”); see also
ante, at
17–18 (stating that the “focu[s]” of §2
analysis is “on the specific 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 undiluted benchmark.
There are two critical problems with this fiat.
The first, which the majority seems to recognize yet fails to
resolve, is that excluding such computer evidence from view cannot
be reconciled with §2’s command to consider “the
totality of circumstances.”[
15] Second—and more fundamentally—the reasons
that the majority gives for downplaying the relevance of computer
evidence would more logically support a holding that there is no
judicially manageable way of applying §2’s results test
to single-member districts. The majority waxes about the
“myriad considerations” that go into districting, the
“difficult, contestable choices” those considerations
require, and how “[n]othing in §2 provides an
answer” to the question of how well any given algorithm
approximates the correct benchmark.
Ante, at 27–28
(internal quotation marks omitted). In the end, it concludes,
“Section 2 cannot require courts to judge a contest of
computers” in which “there is no reliable way to
determine who wins, or even where the finish line is.”
Ante, at 29.
The majority fails to recognize that
whether vote-dilution claims require an undiluted benchmark
is not up for debate. If §2 applies to single-member
districting plans, courts cannot dispense with an undiluted
benchmark for comparison, ascertained by an objective and workable
method.
Bossier Parish School Bd., 520 U. S., at 480;
Holder, 512 U. S., at 881 (plurality opinion). Of
course, I would be the last person to deny that defining the
undiluted benchmark is difficult. See
id., at 892 (opinion
of Thomas, J.) (arguing that it “immerse[s] the federal
courts in a hopeless project of weighing questions of political
theory”). But the “myriad considerations” and
“[a]nswerless questions” the majority frets about,
ante, at 27, 29, are inherent in the very enterprise of
applying §2 to single-member districts. Everything the
majority says about the difficulty of defining the undiluted
benchmark
with computer evidence applies with equal or
greater force to the task of defining it
without such
evidence. At their core, the majority’s workability concerns
are an isolated demand for rigor against the backdrop of a legal
regime that has long been “ ‘inherently
standardless,’ ” and must remain so until the
Court either discovers a principled and objective method of
identifying the undiluted benchmark,
Holder, 512 U. S.,
at 885 (plurality opinion), or abandons this enterprise altogether,
see
id., at 945 (opinion of Thomas, J.).
Ultimately, the majority has very little to say
about the appropriate benchmark. What little it does say suggests
that the majority sees no real alternative to the District
Court’s proportional-control benchmark, though it appears
unwilling to say so outright. For example, in a nod to the
statutory text and its “equal openness” requirement,
the majority asserts that “[a] district is not equally open
. . . when minority voters face—unlike their
majority peers—bloc voting along racial lines, arising
against the backdrop of substantial racial discrimination within
the State, that renders a minority vote unequal to a vote by a
nonminority voter.”
Ante, at 17. But again, we have
held that dilution cannot be shown without an objective, undiluted
benchmark, and this verbiage offers no guidance for how to
determine it.[
16] Later, the
majority asserts that “the
Gingles framework itself
imposes meaningful constraints on proportionality.”
Ante, at 18–19. But the only constraint on
proportionality the majority articulates is that it is often
difficult to achieve—which, quite obviously, is no
principled limitation at all.
Ante, at 20–22.
Thus, the end result of the majority’s
reasoning is no different from the District Court’s: The
ultimate benchmark is a racially proportional allocation of seats,
and the main question on which liability turns is whether a closer
approximation to proportionality is possible under any reasonable
application 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 unjustified practical asymmetry to
which its rejection of computer evidence gives rise. Courts are to
“focu[s] . . . on the specific illustrative maps
that a plaintiff adduces,”
ante, at 17–18, by
which the majority means that courts should
not
“focu[s]” on statistical evidence showing those maps to
be outliers. Thus, plaintiffs may use an algorithm to generate any
number of maps that meet specified districting criteria and a
preferred racial target; then, they need only produce one of those
maps to “sho[w] it is
possible that the State’s
map” is dilutive
. Ante, at 18 (emphasis in
original). But the State may not use algorithmic evidence to
suggest that the plaintiffs’ map is an unsuitable benchmark
for comparison—not even, apparently, if it can prove that the
illustrative map is an outlier among “billion[s]” or
“trillion[s]” of concededly “adequate
comparators.”
Ante, at 27, 29; see also
ante,
at 29 (rejecting sampling algorithms). This arbitrary restriction
amounts to a thumb on the scale for §2 plaintiffs—an
unearned presumption that any “reasonable” map they put
forward constitutes a benchmark against which the State’s map
can be deemed dilutive. And, once the comparison is framed in that
way, the only workable rule of decision is proportionality. See
Holder, 512 U. S., at 941–943 (opinion of Thomas,
J.).
By affirming the District Court, the majority
thus approves 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 District
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 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 infuse race into virtually
every redistricting, raising serious constitutional
questions.’ ”
Bartlett, 556 U. S., at
21 (plurality opinion) (quoting
LULAC, 548 U. S., at
446 (opinion of Kennedy, J.)). Today, however, by approving the
plaintiffs’ racially gerrymandered maps as reasonably
configured, refusing to ground §2 vote-dilution claims in a
race-neutral benchmark, and affirming a vote-dilution finding that
can only be justified by a benchmark of proportional control, the
majority holds, in substance, that race belongs in virtually every
redistricting. It thus drives headlong into the very constitutional
problems that the Court has long sought to avoid. The result of
this collision is unmistakable: If the District Court’s
application of §2 was correct as a statutory matter, §2
is unconstitutional as applied here.
Because the Constitution “restricts
consideration of race and the [Voting Rights Act] demands
consideration of race,”
Abbott, 585 U. S., at ___
(slip op., at 4), strict scrutiny is implicated wherever, as here,
§2 is applied to require a State to adopt or reject any
districting plan on the basis of race. See
Bartlett, 556
U. S., at 21–22 (plurality opinion). At this point, it
is necessary to confront directly one of the more confused notions
inhabiting our redistricting jurisprudence. In several 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 districts as
insufficiently tailored to that asserted interest. See,
e.g.,
Wisconsin Legislature, 595 U. S., at ___
(slip op., at 3);
Cooper v.
Harris, 581 U.S. 285, 292
(2017);
Shaw II, 517 U. S., at 915;
Miller, 515
U. S., at 921. But we have never applied this assumption to
uphold a districting plan that would otherwise violate the
Constitution, and the slightest reflection on first principles
should make clear why it would be problematic to do so.[
18] The Constitution is supreme over
statutes, not vice versa.
Marbury v.
Madison, 1
Cranch 137, 178 (1803). Therefore, if complying with a federal
statute would require a State to engage in 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 flow from its authority to “enforce”
the Fourteenth and Fifteenth Amendments “by appropriate
legislation.” Amdt. 14, §5; Amdt. 15, §2. Since
Congress in 1982 replaced intent with effects as the criterion of
liability, however, “a violation of §2 is no longer
a fortiori a violation of ” either
Amendment.
Bossier Parish School Bd., 520 U. S., at
482. Thus, §2 can be justified only under Congress’
power to “enact reasonably prophylactic legislation to deter
constitutional harm.”
Allen v.
Cooper, 589
U. S. ___, ___ (2020) (slip op., at 11) (alteration and
internal quotation marks omitted); see
City of Boerne v.
Flores,
521 U.S.
507, 517–529 (1997). Because Congress’
prophylactic- enforcement authority is “remedial, rather than
substantive,” “[t]here must be a congruence and
proportionality between the injury to be prevented or remedied and
the means adopted to that end.”[
19]
Id., at 520. Congress’ chosen means,
moreover, must “ ‘consist with the letter and
spirit of the constitution.’ ”
Shelby
County v.
Holder,
570 U.S.
529, 555 (2013) (quoting
McCulloch v.
Maryland, 4
Wheat. 316, 421 (1819)); accord,
Miller, 515 U. S., at
927.
Here, as with everything else in our
vote-dilution jurisprudence, the task of sound analysis is
encumbered by the lack of clear principles defining §2
liability in districting. It is awkward to examine the
“congruence” and “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 17;
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 regularly
defeat the choices of minority voters”). And, as I have
shown, the remedial logic with which the District Court’s
construction of §2 addresses that “wrong” rests on
a proportional-control benchmark limited only by feasibility. Thus,
the relevant statutory rule may be approximately stated as follows:
If voting is racially polarized in a jurisdiction, and if there
exists any more or less reasonably configured districting plan that
would enable the minority group to constitute a majority in a
number of districts roughly proportional 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
precision the scope of the constitutional right at issue.”
Board of Trustees of Univ. of Ala. v.
Garrett,
531 U.S.
356, 365 (2001). The Reconstruction Amendments “forbi[d],
so far as civil and political rights are concerned, discrimination
. . . against any citizen because of his race,”
ensuring that “[a]ll citizens are equal before the
law.”
Gibson v.
Mississippi,
162 U.S.
565, 591 (1896) (Harlan, J.). They dictate “that the
Government must treat citizens as individuals, not as simply
components of a racial, religious, sexual or national class.”
Miller, 515 U. S., at 911 (internal quotation marks
omitted). These principles are why the Constitution presumptively
forbids race-predominant districting, “even for remedial
purposes.”
Shaw I, 509 U. S., at 657.
These same principles foreclose a construction
of the Amendments that would entitle members of racial minorities,
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
candidates—regardless of whether minorities prefer different
candidates and of whether “the majority, by virtue of its
numerical superiority,” regularly prevails.
Gingles,
478 U. S., at 48. Nor, finally, do the Amendments establish a
norm of proportional control of elected offices on the basis of
race. See
Parents Involved, 551 U. S., at 730–731
(plurality opinion);
Shaw I, 509 U. S., at 657. And
these notions are not merely
foreign to the Amendments.
Rather, they are
radically inconsistent with the
Amendments’ command that government treat citizens as
individuals and their “goal of a political system in which
race no longer matters.”
Ibid.
Those notions are, however, the values at the
heart of §2 as construed by the District Court and the
majority. As applied here, the statute effectively considers it a
legal wrong by the State if white Alabamians vote for candidates
from one political party at high enough rates, provided that black
Alabamians vote for candidates from the other party at a still
higher rate. And the statute remedies that wrong by requiring the
State to engage in race-based redistricting in the direction of
proportional control.
I am not certain that Congress’
enforcement power could
ever justify a statute so at odds
“ ‘with the letter and spirit of the
constitution.’ ”
Shelby County, 570
U. S., at 555. If it could, it must be because Congress
“identified a history and pattern” of actual
constitutional violations that, for some reason, required
extraordinary prophylactic remedies.
Garrett, 531
U. S., at 368. But the legislative record of the 1982
amendments is devoid of any showing that might justify
§2’s blunt approximation of a “racial register for
allocating representation on the basis of race.”
Holder, 512 U. S., at 908 (opinion of Thomas, J.). To
be sure, the Senate Judiciary Committee Report that accompanied the
1982 amendment to the Voting Rights Act “listed many examples
of what the Committee
took to be unconstitutional vote
dilution.”
Brnovich, 594 U. S., at ___ (slip op.,
at 6) (emphasis added). But the Report also showed the
Committee’s fundamental lack of “concern with
whether” those examples reflected the
“intentional” discrimination required “to raise a
constitutional issue.”
Allen, 589 U. S., at ___
(slip op., at 15). The Committee’s “principal
reason” for rejecting 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 offered minorities “a fair
opportunity to participate” in the political process.
S. Rep. No. 97–417, p. 36.
As applied here, the amended §2 thus falls
on the wrong side of “the line between measures that remedy
or prevent unconstitutional actions and measures that make a
substantive change in the governing law.”
City of
Boerne, 521 U. S., at 519. It replaces the constitutional
right against intentionally discriminatory districting with an
amorphous race-based right to a “fair” distribution of
political power, a “right” that cannot be implemented
without requiring the very evils the Constitution forbids.
If that alone were not fatal, §2’s
“reach and scope” further belie any congruence and
proportionality between its districting-related commands, on the
one hand, and actionable 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 voting rights on racial grounds.’ ”
Ibid. (quoting
South Carolina v.
Katzenbach,
383
U.S. 301, 355 (1966) (Black, J., concurring and dissenting)).
In view of this “indiscriminate scope,” “it
simply cannot be said that ‘many of [the districting plans]
affected by the congressional enactment have a significant
likelihood of being unconstitutional.’ ”
Florida Prepaid Postsecondary Ed. Expense Bd. v.
College
Savings Bank,
527 U.S.
627, 647 (1999) (quoting
City of Boerne, 521 U. S.,
at 532).
Of course, under the logically unbounded
totality-of-circumstances inquiry, a court applying §2 can
always embroider its vote-dilution determination with findings
about past or present unconstitutional discrimination. But this
possibility does nothing to heal either the fundamental
contradictions between §2 and the Constitution or its extreme
overbreadth relative to actual constitutional wrongs. “A
generalized assertion of past discrimination” cannot justify
race-based redistricting, “because it provides no guidance
for a legislative body to determine the precise scope of the injury
it seeks to remedy.”
Shaw II, 517 U. S., at 909
(internal quotation marks omitted). To justify a statute tending
toward the proportional allocation of political power by race
throughout the Nation, it cannot be enough that a court can recite
some indefinite quantum of discrimination in the relevant
jurisdiction. If it were, courts “could uphold [race-based]
remedies that are ageless in their reach into the past, and
timeless in their ability to affect the future.”
Wygant v.
Jackson Bd. of Ed.,
476
U.S. 267, 276 (1986) (plurality opinion). That logic
“would effectively assure that race will always be relevant
in [redistricting], and that the ultimate goal of eliminating
entirely from governmental decisionmaking such irrelevant factors
as a human being’s race will never be achieved.”
Parents Involved, 551 U. S., at 730 (plurality opinion)
(alteration and internal quotation marks omitted).
For an example of these baleful results, we need
look no further than the congressional districts at issue here. In
1992, Alabama and a group of §2 plaintiffs, whom a federal
court chose to regard as the representatives “of all
African-American citizens of the State of Alabama,”
stipulated that the State’s black population was
“ ‘sufficiently compact and contiguous to comprise
a single member significant majority (65% or more) African American
Congressional district,’ ” and that,
“ ‘[c]onsequently,’ ” such a
“ ‘district should be created.’ ”
Wesch v.
Hunt,
785
F. Supp. 1491, 1493, 1498 (SD Ala.). Accepting that
stipulation, the court reworked District 7 into an irregularly
shaped supermajority-black district—one that scooped up
populous clusters of black voters in the disparate urban centers of
Birmingham and Montgomery 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
forbid such an extreme racial
gerrymander, as it quite obviously did. But, once District 7 had
come into being as a racial gerrymander thought necessary to
satisfy §2, it became an all-but-immovable fixture of
Alabama’s districting scheme.
Now, 30 years later, the plaintiffs here demand
that Alabama carve up not two but three of its main urban centers
on the basis of race, and that it configure 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
reasonable desire to maintain the Gulf Coast region as a cohesive
political unit, and its persuasive arguments that a race-neutral
districting process would not produce anything like the districts
the plaintiffs seek. Our reasons for doing so boil down to these:
that the plaintiffs’ proposed districts are more or less
within the vast universe of reasonable districting outcomes; that
Alabama’s white voters do not support the black
minority’s preferred candidates; that Alabama’s racial
climate, taken as a rarefied whole, crosses some indefinable line
justifying our interference; and, last but certainly not least,
that black Alabamians are about two-sevenths of the State’s
overall population.
By applying §2 in this way to claims of
this kind, we encourage a conception of politics as a struggle for
power between “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 redistributing political power
on that basis.
Adarand Constructors, Inc. v.
Peña,
515 U.S.
200, 239 (1995) (Scalia, J., concurring in part and concurring
in 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 of having to weigh just how much racial
sorting is necessary to avoid the “competing hazards”
of violating §2 and violating the Constitution.
Abbott,
585 U. S., at ___ (slip op., at 4) (internal quotation marks
omitted). We have even put ourselves in the 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 deflects this conclusion by
appealing to two of our older Voting Rights Act cases,
City of
Rome v.
United States,
446 U.S.
156 (1980), and
South Carolina v.
Katzenbach,
383 U.S.
301, that did not address §2 at all and, indeed, predate
Congress’ adoption of the results test.
Ante, at
33–34. That maneuver is untenable.
Katzenbach upheld
§5’s preclearance requirements, §4(b)’s
original coverage formula, and other related provisions aimed at
“a small number of States and political subdivisions”
where “systematic resistance to the Fifteenth
Amendment” had long been flagrant. 383 U. S., at 328;
see also
id., at 315–317 (describing the limited
issues presented). Fourteen years later,
City of Rome upheld
the 1975 Act extending §5’s preclearance provisions for
another seven years. See 446 U. S., at 172–173. The
majority’s reliance on these cases to validate a statutory
rule not there at issue could make sense only if we assessed the
congruence and proportionality of the Voting Rights Act’s
rules wholesale, without considering their individual features, or
if
Katzenbach and
City of Rome meant that Congress
has plenary power to enact whatever rules it chooses to
characterize as combating “discriminatory . . .
effect[s].”
Ante, at 33 (internal quotation marks
omitted). Neither proposition makes any conceptual sense or is
consistent with our cases. See,
e.g.,
Shelby County,
570 U. S., at 550–557 (holding the 2006 preclearance
coverage formula unconstitutional);
Northwest Austin Municipal
Util. Dist. No. One v.
Holder,
557
U.S. 193, 203 (2009) (emphasizing the distinctness of
§§2 and 5);
City of Boerne, 521 U. S., at 533
(discussing
City of Rome as a paradigm case of
congruence-and-proportionality review of remedial 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 difficult constitutional questions,”
notwithstanding
City of Rome).
In fact, the majority’s cases confirm the
very limits on Congress’ enforcement powers that are fatal to
the District Court’s construction of §2.
City of
Rome, for example, immediately after one of the sentences
quoted by the majority, explained the remedial rationale for its
approval of the 1975 preclearance extension: “Congress could
rationally have concluded that, because electoral changes
by
jurisdictions with a demonstrable history of intentional racial
discrimination 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 omitted). The next section of
City of Rome
then separately examined and upheld the reasonableness of the
extension’s 7-year time period. See
id., at
181–182.
City of Rome thus stands for precisely the
propositions for which
City of Boerne cited it: Congress may
adopt “[p]reventive measures . . . when there is
reason to believe that many of the laws affected by the
congressional enactment have a significant likelihood of being
unconstitutional,” 521 U. S., at 532, particularly when
it employs “termination dates, geographic restrictions, or
egregious predicates” that “tend to ensure
Congress’ means are proportionate to ends legitimate,”
id., at 533; see also
id., at 532–533
(analyzing
Katzenbach in similar terms);
Shelby
County, 570 U. S., at 535, 545–546 (same). Again,
however, the amended §2 lacks any such salutary limiting
principles; it is unbounded in time, place, and subject matter, and
its districting-related commands have no nexus to any likely
constitutional wrongs.
In short, as construed by the District Court,
§2 does not remedy or deter unconstitutional discrimination in
districting in any way, shape, or form. On the contrary, it
requires it, hijacking the districting process to pursue a
goal that has no legitimate claim under our constitutional system:
the proportional allocation of political power on the basis of
race. Such a statute “cannot be considered remedial,
preventive legislation,” and the race-based redistricting it
would command cannot be upheld under the Constitution.
City of
Boerne, 521 U. S., at 532.[
21]
IV
These cases are not close. The plaintiffs did
not prove that Alabama’s districting plan “impose[s] or
applie[s]” any “voting qualification or prerequisite to
voting or standard, practice, or procedure” that effects
“a denial or abridgement of the[ir] right . . . to
vote on account of race or color.” §10301(a). Nor did
they prove that Alabama’s congressional districts “are
not equally open to participation” by black Alabamians.
§10301(b). The plaintiffs did not even prove that it is
possible to achieve two majority-black 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 climate, was enough to require the
State to redraw its districting plan on the basis of race. If that
is the benchmark for vote dilution under §2, then §2 is
nothing more than a racial entitlement to roughly proportional
control of elective offices—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 applies to districting, then the Court should hold that
vote-dilution challenges require a race-neutral benchmark that
bears no resemblance to unconstitutional racial registers. On the
other hand, if the Court believes that finding a race-neutral
benchmark is as impossible as much of its rhetoric suggests, it
should hold that §2 cannot be applied to single-member
districting plans for want of an “objective and workable
standard for choosing a reasonable benchmark.”
Holder,
512 U. S., at 881 (plurality opinion). Better yet, it could
adopt the correct interpretation of §2 and hold that a
single-member districting plan is not a “voting
qualification,” a “prerequsite to voting,” or a
“standard, practice, or procedure,” 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 majority recites
Gingles’ shopworn phrases as if
their meaning were self-evident, and as if it were not common
knowledge that they have spawned intractable difficulties of
definition and application. It goes out of its way to reaffirm
§2’s applicability to single-member districting plans
both as a purported original matter and on highly exaggerated
stare decisis grounds. It virtually ignores Alabama’s
primary argument—that, whatever the benchmark is, it must be
race neutral—choosing, instead, to quixotically joust with an
imaginary adversary. In the process, it uses special pleading to
close the door on the hope cherished by some thoughtful observers,
see
Gonzalez, 535 F. 3d, at 599–600, that
computational redistricting methods might offer a principled,
race-neutral way out of the thicket
Gingles carried us into.
Finally, it dismisses grave constitutional questions with an
insupportably broad holding based on demonstrably inapposite
cases.[
22]
I find it difficult to understand these
maneuvers except as proceeding from a perception that what the
District Court did here is essentially no different from what many
courts have done for decades under this Court’s
superintendence, joined with a sentiment that it would be
unthinkable to disturb that approach to the Voting Rights Act in
any way. I share the perception, but I cannot understand the
sentiment. It is true that, “under our direction, federal
courts [have been] engaged in methodically carving the country into
racially 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 dissembling in our
approach to the Act too damaging to the credibility of the Federal
Judiciary. The ‘inherent tension’—indeed, I would
call it an irreconcilable conflict—between the standards we
have adopted for evaluating vote dilution claims and the text of
the Voting Rights Act would itself be sufficient in my view to
warrant overruling the interpretation of §2 set out in
Gingles. When that obvious conflict is combined with the
destructive effects our expansive reading of the Act has had in
involving the Federal Judiciary in the project of dividing the
Nation into racially segregated electoral districts, I can see no
reasonable alternative to abandoning our current unfortunate
understanding of the Act.”
Id., at 944.
I respectfully dissent.