SUPREME COURT OF THE UNITED STATES
Nos. 21–1086 and 21–1087
WES ALLEN, ALABAMA SECRETARY OF STATE, ET AL., APPELLANTS
21–1086v.21–1086
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
21–1087v.21–1087
MARCUS CASTER, ET AL.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 8, 2023]
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 Voting Rights Act. Like the Court, I am happy to apply Gingles in these cases. But I would interpret that precedent in a way that heeds what §2 actually says, and I would take constitutional requirements into account. When the Gingles framework is viewed in this way, it is apparent that the decisions below must be vacated.
I
A
Gingles marked the Court’s first encounter with the amended version of §2 that Congress enacted in 1982, and the Court’s opinion set out an elaborate framework that has since been used to analyze a variety of §2 claims. Under that framework, a plaintiff must satisfy three “preconditions.” Id., at 50. As summarized in more recent opinions, they are as follows:
“First, [the] ‘minority group’ [whose interest the plaintiff represents] must be ‘sufficiently large and geographically compact to constitute a majority’ in some reasonably configured legislative district. Second, the minority group must be ‘politically cohesive.’ And third, a district’s white majority must ‘vote[] sufficiently as a bloc’ to usually ‘defeat the minority’s preferred candidate.’ ” Cooper v. Harris, 581 U. S. 285, 301–302 (2017) (citations omitted).
See also Wisconsin Legislature v. Wisconsin Elections Comm’n, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 3); Merrill v. Milligan, 595 U. S. ___, ___ (2022) (Kagan, J., dissenting from grant of applications for stays) (slip op., at 3–4).
If a §2 plaintiff can satisfy all these preconditions, the court must then decide whether, based on the totality of the circumstances, the plaintiff’s right to vote was diluted. See Gingles, 478 U. S., at 46–48, 79. And to aid in that inquiry, Gingles approved consideration of a long list of factors set out in the Senate Judiciary Committee’s Majority Report on the 1982 VRA amendments. Id., at 44–45 (citing S. Rep. No. 97–417, pp. 28–30 (1982)).
B
My fundamental disagreement with the Court concerns the first Gingles precondition. In cases like these, where the claim is that §2 requires the creation of an additional majority-minority district, the first precondition means that the plaintiff must produce an additional illustrative majority-minority district that is “reasonably configured.” Cooper, 581 U. S., at 301; Wisconsin Legislature, 595 U. S., at ___ (slip op., at 3); see also Gingles, 478 U. S., at 50.
The Court’s basic error is that it misunderstands what it means for a district to be “reasonably configured.” Our cases make it clear that “reasonably configured” is not a synonym for “compact.” We have explained that the first precondition also takes into account other traditional districting criteria like attempting to avoid the splitting of political subdivisions and “communities of interest.” League of United Latin American Citizens v. Perry, 548 U. S. 399, 433–434 (2006) (LULAC).
To its credit, the Court recognizes that compactness is not enough and that a district is not reasonably configured if it flouts other “traditional districting criteria.” Ante, at 10. At various points in its opinion it names quite a few: minimizing the splitting of counties and other political subdivisions, keeping “communities of interest” together where possible, and avoiding the creation of new districts that require two incumbents to run against each other. Ante, at 12, 26–27. In addition, the Court acknowledges that a district is not “reasonably configured” if it does not comport with the Equal Protection Clause’s one-person, one-vote requirement. Ante, at 27. But the Court fails to explain why compliance with “traditional districting criteria” matters under §2 or why the only relevant equal protection principle is the one-person, one-vote requirement. If the Court had attempted to answer these questions, the defect in its understanding of the first 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 compactness requirement. The Court notes that we have struck down bizarrely shaped districts, ante, at 19–20, but we did not do that for esthetic reasons. Compactness in and of itself is not a legal requirement—or even necessarily an esthetic one. (Some may find fancifully shaped districts more pleasing to the eye than boring squares.)
The same is true of departures from other traditional districting criteria. Again, nothing in the Constitution or the VRA demands compliance with these criteria. If a whimsical state legislature cavalierly disregards county and municipal lines and communities of interest, draws weirdly shaped districts, departs radically from a prior map solely for the purpose of change, and forces many incumbents to run against each other, neither the Constitution nor the VRA would make any of that illegal per se. Bizarrely shaped districts and other marked departures from traditional districting 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—specifically, unconstitutional racial gerrymandering—is afoot. See, e.g., Shaw v. Reno, 509 U. S. 630, 643–644 (1993); Bush v. Vera, 517 U. S. 952, 979 (1996) (plurality opinion); cf. LULAC, 548 U. S., at 433–435.
Conspicuous violations of traditional districting criteria constitute strong circumstantial evidence of unconstitutionality. And when it is shown that the configuration of a district 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. Johnson, 515 U. S. 900, 920 (1995).[1]
Because non-predominance is a longstanding and vital feature of districting law, it must be honored in a Gingles plaintiff’s illustrative district. If race predominated in the creation of such a district, the plaintiff has failed to satisfy both our precedent, which requires “reasonably configured” districts, and the terms of §2, which demand equal openness. Two Terms ago, we engaged in a close analysis of the text of §2 and explained that its “key requirement” is that the political processes leading to nomination or election must be “ ‘equally open to participation’ by members of a protected class.” Brnovich v. Democratic National Committee, 594 U. S. ___, ___ (2021) (slip op., at 6, 15) (quoting 52 U. S. C. §10301(b); emphasis deleted). “[E]qual openness,” we stressed, must be our “touchstone” in interpreting and applying that provision. 594 U. S., at ___ (slip op., at 15).
When the race of one group is the predominant factor in the creation of a district, that district goes beyond making the electoral process equally open to the members of the group in question. It gives the members of that group an advantage that §2 does not require and that the Constitution may forbid. And because the creation of majority-minority districts is something of a zero-sum endeavor, giving an advantage to one minority group may disadvantage others.
C
What all this means is that a §2 plaintiff who claims that a districting map violates §2 because it fails to include an additional majority-minority district must show at the 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 adducing evidence—in any acceptable form—that race did not predominate.
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 district. 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 mapmaker uses a computer program, the expert can testify about the weight, if any, that the program gives to race. The plaintiff will presumably argue that any role assigned to race was not predominant, and the defendant can contest this by cross-examining the plaintiff’s expert, seeking the actual program in discovery, and calling its own expert to testify about the program’s treatment of race. After this, the trial court will be in a position to determine whether the program gave race a “predominant” role.
This is an entirely workable scheme. It does not obligate either party to offer computer evidence, and it minimizes the likelihood of a clash between what §2 requires and what the Constitution forbids. We have long assumed that §2 is consistent with the Constitution. See, e.g., Cooper, 581 U. S., at 301 (assuming States have a compelling interest in complying with §2); Shaw II, 517 U. S., at 915 (same); Vera, 517 U. S., at 977 (plurality opinion) (same). But that cannot mean that every conceivable interpretation of §2 is constitutional, and I do not understand the majority’s analysis of Alabama’s constitutional claim to suggest otherwise. Ante, at 33–34; ante, at 4 (Kavanaugh, J., concurring in part).
Our cases make it perfectly clear that using race as a “predominant factor” in drawing legislative districts is unconstitutional unless the stringent requirements of strict scrutiny can be satisfied,[2] and therefore if §2 can be found to require the adoption of an additional majority-minority district that was created under a process that assigned race a “predominant” role, §2 and the Constitution would be headed for a collision.
II
When the meaning of a “reasonably configured” district is properly understood, it is apparent that the decisions 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 satisfied the first Gingles precondition, the District Court gave much attention to some traditional districting criteria—specifically, compactness and avoiding the splitting of political subdivisions and communities of interest—but it failed to consider whether the plaintiffs had shown that their illustrative districts were created without giving race a “predominant role.” Singleton v. Merrill, 582 F. Supp. 3d 924, 1008–1016 (ND Ala. 2022). For this reason, the District Court’s §2 analysis was deficient.
It is true that the District Court addressed the question of race-predominance when it discussed and rejected the State’s argument that the plaintiffs’ maps violated the Equal Protection Clause, but the court’s understanding of predominance was deeply flawed. The court began this part of its opinion with this revealing statement:
“Dr. Duchin and Mr. Cooper [plaintiffs’ experts] testified that they prioritized race only for the purpose of determining and to the extent necessary to determine whether it was possible for the Milligan plaintiffs and the Caster plaintiffs to state a Section Two claim. As soon as they determined the answer to that question, they assigned greater weight to other traditional redistricting criteria.” Id., at 1029–1030 (emphasis added).
This statement overlooks the obvious point that by “prioritiz[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 ‘nonnegotiable’ does not” show that race played a predominant role in her districting process. Id., at 1030. But if achieving a certain objective is “non-negotiable,” then achieving that objective will necessarily play a predominant role. Suppose that a couple are relocating to the Washington, D. C., metropolitan area, and suppose that one says to the other, “I’m flexible about where we live, but it has to be in Maryland. That’s non-negotiable.” Could anyone say that finding a home in Maryland was not a “predominant” factor in the couple’s search? Or suppose that a person looking for a flight tells a travel agent, “It has to be non-stop. That’s nonnegotiable.” Could it be said that the number of stops between the city of origin and the destination was not a “predominant” factor in the search for a good flight? The obvious 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 first Gingles precondition. The court thought that a §2 plaintiff cannot proffer a reasonably configured majority-minority district without first attempting to see if it is possible to create such a district—that is, by first making the identification of such a district “non-negotiable.” Ibid. But that is simply not so. A plaintiff’s expert can first create maps using only criteria that do not give race a predominant role and then determine how many contain the desired number of majority-minority districts.
One final observation about the District Court’s opinion is in order. The opinion gives substantial weight to the disparity between the percentage of majority-black House districts in the legislature’s plan (14%) and the percentage of black voting-age Alabamians (27%), while the percentage in the plaintiffs’ plan (29%) came closer to that 27% mark. See, e.g., id., at 946, 1016, 1018, 1025–1026; see also id., at 958–959, 969, 976, 982, 991–992, 996–997. Section 2 of the VRA, however, states expressly that no group has a right to representation “in numbers equal to their proportion in the population.” 52 U. S. C. §10301(b). This provision was a critical component of the compromise that led to the adoption of the 1982 amendments, as the Court unanimously agreed two Terms ago. See Brnovich, 594 U. S., at ___, and n. 14 (slip op., at 22, and n. 14); id., at ___, n. 6 (Kagan, J., dissenting) (slip op., at 19, n. 6). The District Court’s reasoning contravened this statutory proviso. See ante, at 11–12, 28–30 (Thomas, J., dissenting).
III
The Court spends much of its opinion attacking what it takes to be the argument that Alabama has advanced in this litigation. I will not debate whether the Court’s characterization 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 overruled.” Ante, at 25. But as I wrote at the beginning of this opinion, I would decide these cases under the Gingles framework. We should recognize, however, that the Gingles framework is not the same thing as a statutory provision, and it is a mistake to regard it as such. National Pork Producers Council v. Ross, 598 U. S. ___, ___ (2023) (slip op., at 9) (“[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute” (quoting Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979))). In applying that framework today, we should keep in mind subsequent developments in our case law.
One important development has been a sharpening of the methodology used in interpreting statutes. Gingles was decided 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 ___ (slip op., at 14). And as we held in Brnovich, “[t]he key requirement” set out in the text of §2 is that a State’s electoral process must be “ ‘equally open’ ” to members of all racial groups. Id., at ___ (slip op., at 15). The Gingles framework should be 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” factor 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 problems.” Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 2). This same principle logically applies with even greater force when we interpret language in one of our prior opinions. It therefore goes without question that we should apply the Gingles framework in a way that does not set up a confrontation between §2 and the Constitution, and understanding the first 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 suggests that the “centerpiece” of Alabama’s argument regarding the role race can permissibly play in a plaintiff’s illustrative map seeks the imposition of “a new rule.” Ante, at 15, 22. But I would require only what our cases already demand: that all legislative districts be produced without giving race a “predominant” role.[4]
The Court maintains that Alabama’s benchmark scheme would be unworkable because of the huge number of different race-neutral maps that could be drawn. As the Court notes, there are apparently numerous “competing metrics on the issue of compactness” alone, and each race-neutral computer program may assign different values to each traditional districting criterion. Ante, at 27 (internal quotation marks omitted).
My analysis does not create such problems. If a §2 plaintiff chooses to use a computer program to create an illustrative district, the court need ask only whether that program assigned race a predominant role.
The Court argues that Alabama’s focus on race-neutral maps cannot be squared with a totality-of-the-circumstances test because “Alabama suggests there is only one ‘circumstance[]’ that matters—how the State’s map stacks up relative to the benchmark” maps. Ante, at 18. My analysis, however, simply follows the Gingles framework, under which a court must first determine whether a §2 plaintiff has satisfied three “preconditions” before moving on to consider the remainder of relevant circumstances. See Growe v. Emison, 507 U. S. 25, 40–41 (1993) (unless plaintiffs establish all three preconditions, there “neither has been a wrong nor can be a remedy”).
IV
As noted, I would vacate and remand for the District Court to apply the correct understanding of Gingles in the first instance. Such a remand would require the District Court to determine whether the plaintiffs have shown that their illustrative maps did not give race a predominant role, and I will therefore comment briefly on my understanding of the relevant evidence in the record as it now stands.
A
In my view, there is strong evidence that race played a predominant role in the production of the plaintiffs’ illustrative 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 majority-black districts. See 2 App. 571–572; Supp. App. 59, 72. In fact, in 20,000 of those simulations, Dr. Imai intentionally created one majority-minority district, and yet even with one majority-minority district guaranteed as a baseline, none of those 20,000 attempts produced a second one. See 2 App. 571–572; Supp. App. 72.
Similarly, Dr. Moon Duchin, another expert hired by the Milligan plaintiffs, opined that “it is hard to draw two majority-black districts by accident.” 2 App. 714. Dr. Duchin also referred to a study where she generated two million maps of potential district configurations in Alabama, none of which contained a second majority-minority district. Id., at 710. And the first 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 controls certain redistricting criteria and that Dr. Duchin’s two-million-map study was based on 2010 census data, see ante, at 26–27, and nn. 6–7, but this is unconvincing for several reasons. It is plaintiffs’ burden to produce evidence and satisfy the Gingles preconditions, so if their experts’ maps were deficient, that is no strike against Alabama. And the racial demographics of the State changed little 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 impossible to draw two such districts in 2010, it surely at least requires a great deal of intentional effort now.
The Court suggests that little can be inferred from Dr. Duchin’s two-million-map study because two million maps are not that many in comparison to the “trillion trillion” maps that are possible. See ante, at 28–29, and n. 9. In making this argument, the Court relies entirely on an amicus brief submitted by three computational redistricting experts in support of the appellees. See Brief for Computational Redistricting Experts 2, 6, n. 7. These experts’ argument concerns a complicated statistical issue, and I think it is unwise for the Court to make their argument part of our case law based solely on this brief. By the time this amicus brief was submitted, the appellants had already filed their main brief, and it was too late for any experts with contrary views to submit an amicus brief in support of appellants. Computer simulations are widely used today to make predictions about many important matters, and I would not place stringent limits on their use in VRA 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 first Gingles precondition, but I would let the District Court sort this matter out on remand.
B
Despite the strong evidence that two majority-minority districts cannot be drawn without singular emphasis on race, a plurality nonetheless concludes that race did not predominate in the drawing of the plaintiffs’ illustrative maps. See ante, at 22–25. Their conclusion, however, rests on a faulty view of what non-predominance means.
The plurality’s position seems to be that race does not predominate in the creation of a districting map so long as the map does not violate other traditional districting 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 that race predominated because of the legislature’s “overriding desire to assign black populations” in a way that would create an additional “majority-black district.” 515 U. S., at 917.
Later cases drove home the point that conformity with traditional districting principles does not necessarily mean that a district was created without giving race a predominant role. In Cooper, we held that once it was shown that race was “ ‘the overriding reason’ ” for the selection of a particular map, “a further showing of ‘inconsistency between the enacted plan and traditional redistricting criteria’ is unnecessary to a finding of racial predominance.” 581 U. S., at 301, n. 3 (quoting Bethune-Hill, 580 U. S., at 190). We noted that the contrary argument was “foreclosed almost as soon as it was raised in this Court.” Cooper, 581 U. S., at 301, n. 3; see also Vera, 517 U. S., at 966 (plurality opinion) (race may still predominate even if “traditional districting principle[s] do correlate to some extent with the district’s layout”). “Traditional redistricting principles … are numerous and malleable. … By deploying those factors in various combinations and permutations, a [mapmaker] could construct a plethora of potential maps that look consistent with traditional, race-neutral principles.” Bethune-Hill, 580 U. S., at 190. Here, a plurality allows plaintiffs to do precisely what we warned against in Bethune-Hill.
The plurality’s analysis of predominance contravenes our 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 Constitution’s demand that States generally avoid intentional augmentation of the political power of any one racial group (and thus the diminution of the power of other groups). The plurality’s predominance analysis shreds that prudential concern. If a private plaintiff can demonstrate §2 liability based on the production of a map that the State has every reason to believe it could not constitutionally draw, we have left “state legislatures too little breathing room” and virtually guaranteed that they will be on the losing end of a federal 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 prohibited from basing decisions on race. Today’s decision unnecessarily sets the VRA on a perilous and unfortunate path. I respectfully dissent.
- ↑ Alabama’s districting guidelines explicitly incorporate this non-predominance requirement. See Singleton v. Merrill, 582 F. Supp. 3d 924, 1036 (ND Ala. 2022).
- ↑ Although our cases have posited that racial predominance may be acceptable if strict scrutiny is satisfied, the Court does not contend that it is satisfied here.
- ↑ The second and third Gingles preconditions, which concern racially polarized voting, cannot contribute to avoiding a clash between §2 and the Constitution over racial predominance in the drawing of lines. Those preconditions do not concern the drawing of lines in plaintiffs’ maps, and in any event, because voting in much of the South is racially polarized, they are almost always satisfied anyway. Alabama does not contest that they are satisfied here.
- ↑ The Court appears to contend that it does not matter if race predominated in the drawing of these maps because the maps could have been drawn without race predominating. See ante, at 26–27, n. 7. But of course, many policies could be selected for race-neutral reasons. They nonetheless must be assessed under the relevant standard for 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).