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 Kavanaugh, concurring in all but Part III–B–1.
I agree with the Court that Alabama’s redistricting plan violates §2 of the Voting Rights Act as interpreted in Thornburg v. Gingles, 478 U. S. 30 (1986). I write separately to emphasize four points.
First, the upshot of Alabama’s argument is that the Court should overrule Gingles. But the stare decisis standard for this Court to overrule a statutory precedent, as distinct from a constitutional precedent, is comparatively strict. Unlike with constitutional precedents, Congress and the President may enact new legislation to alter statutory precedents such as Gingles. In the past 37 years, however, Congress and the President have not disturbed Gingles, even as they have made other changes to the Voting Rights Act. Although statutory stare decisis is not absolute, “the Court has ordinarily left the updating or correction of erroneous statutory precedents to the legislative process.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (Kavanaugh, J., concurring in part) (slip op., at 4); see also, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 456 (2015); Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989); Flood v. Kuhn, 407 U. S. 258, 283–284 (1972); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting).[1]
Second, Alabama contends that Gingles inevitably requires a proportional number of majority-minority districts, which in turn contravenes the proportionality disclaimer in §2(b) of the Voting Rights Act. 52 U. S. C. §10301(b). But Alabama’s premise is wrong. As the Court’s precedents make clear, Gingles does not mandate a proportional number of majority-minority districts. Gingles requires the creation of a majority-minority district only when, among other things, (i) a State’s redistricting map cracks or packs a large and “geographically compact” minority population and (ii) a plaintiff ’s proposed alternative map and proposed majority-minority district are “reasonably configured”—namely, by respecting compactness principles and other traditional districting criteria such as county, city, and town lines. See, e.g., Cooper v. Harris, 581 U. S. 285, 301–302 (2017); Voinovich v. Quilter, 507 U. S. 146, 153–154 (1993); ante, at 10–12, 18–22.
If Gingles demanded a proportional number of majority-minority districts, States would be forced to group together geographically dispersed minority voters into unusually shaped districts, without concern for traditional districting criteria such as county, city, and town lines. But Gingles and this Court’s later decisions have flatly rejected that approach. See, e.g., Abbott v. Perez, 585 U. S. ___, ___–___ (2018) (slip op., at 33–34); Bush v. Vera, 517 U. S. 952, 979 (1996) (plurality opinion); Gingles, 478 U. S., at 50; see also Miller v. Johnson, 515 U. S. 900, 917–920 (1995); Shaw v. Reno, 509 U. S. 630, 644–649 (1993); ante, at 18–22.[2]
Third, Alabama argues that courts should rely on race-blind computer simulations of redistricting maps to assess whether a State’s plan abridges the right to vote on account of race. It is true that computer simulations might help detect the presence or absence of intentional discrimination. For example, if all of the computer simulations generated only one majority-minority district, it might be difficult to say that a State had intentionally discriminated on the basis of race by failing to draw a second majority-minority district.
But as this Court has long recognized—and as all Members of this Court today agree—the text of §2 establishes an effects test, not an intent test. See ante, at 17; post, at 7 (Thomas, J., dissenting); post, at 16 (Alito, J., dissenting). And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing—whether intentional or not—of large and geographically compact minority populations. See Abbott, 585 U. S., at ___ (slip op., at 4); Johnson v. De Grandy, 512 U. S. 997, 1006–1007, 1020 (1994); Voinovich, 507 U. S., at 153–154; see generally Brnovich v. Democratic National Committee, 594 U. S. ___, ___ (2021) (slip op., at 22) (“§2 does not demand proof of discriminatory purpose”); Reno v. Bossier Parish School Bd., 520 U. S. 471, 482 (1997) (Congress “clearly expressed its desire that §2 not have an intent component”); Holder v. Hall, 512 U. S. 874, 923–924 (1994) (Thomas, J., concurring in judgment) (§2 adopts a “ ‘results’ test, rather than an ‘intent’ test”); Chisom v. Roemer, 501 U. S. 380, 394, 404 (1991) (“proof of intent is no longer required to prove a §2 violation” as “Congress made clear that a violation of §2 could be established by proof of discriminatory results alone”); Gingles, 478 U. S., at 71, n. 34 (plurality opinion) (§2 does not require “ ‘purpose of racial discrimination’ ”).
Fourth, Alabama asserts that §2, as construed by Gingles to require race-based redistricting in certain circumstances, exceeds Congress’s remedial or preventive authority under the Fourteenth and Fifteenth Amendments. As the Court explains, the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents. See ante, at 33–34; see also City of Rome v. United States, 446 U. S. 156, 177–178 (1980). Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.
For those reasons, I vote to affirm, and I concur in all but Part III–B–1 of the Court’s opinion.
- ↑ Unlike ordinary statutory precedents, the “Court’s precedents applying common-law statutes and pronouncing the Court’s own interpretive methods and principles typically do not fall within that category of stringent statutory stare decisis.” Ramos, 590 U. S., at ___, n. 2 (opinion of Kavanaugh, J.) (slip op., at 5, n. 2); see also, e.g., Kisor v. Wilkie, 588 U. S. ___, ___–___ (2019) (Gorsuch, J., concurring in judgment) (slip op., at 34–36); id., at ___–___ (Kavanaugh, J., concurring in judgment) (slip op., at 1–2); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 899–907 (2007); Arbaugh v. Y & H Corp., 546 U. S. 500, 510–516 (2006).
- ↑ To ensure that Gingles does not improperly morph into a proportionality mandate, courts must rigorously apply the “geographically compact” and “reasonably configured” requirements. See ante, at 22 (§2 requirements under Gingles are “exacting”). In this case, for example, it is important that at least some of the plaintiffs’ proposed alternative maps respect county lines at least as well as Alabama’s redistricting plan. See ante, at 12.