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 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 74 Stat. 91–92 (codified in relevant part at 52 U. S. C. §10101(e)). Title I of the Civil Rights Act of 1964, which cross-referenced the 1960 Act’s definition of “vote,” likewise protects ballot access alone and cannot be read to address vote dilution. See 78 Stat. 241 (codified in relevant part at 52 U. S. C. §10101(a)). Tellingly, the 1964 Act also used the words “standard, practice, or procedure” to refer specifically to voting qualifications for individuals and the actions of state and local officials in administering such 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 … is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” §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:
I respectfully dissent. “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.
- ↑ “No person acting under color of law shall … in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.” 52 U. S. C. §10101(a)(2)(A).
- ↑ The majority suggests that districting lines are a “ ‘prerequisite to voting’ ” because they “determin[e] where” voters “cast [their] ballot[s].” Ante, at 32. But, of course, a voter’s polling place is a separate matter from the district to which he is assigned, and communities are often moved between districts without changing where their residents go to vote. The majority’s other example (“who [voters] are eligible to vote for,” ibid.) is so far a stretch from the Act’s focus on voting qualifications and voter action that it speaks for itself.
- ↑ The majority chides Alabama for declining to specifically argue that §2 is inapplicable to multimember and at-large districting plans. But these cases are about a single-member districting plan, and it is hardly uncommon for parties to limit their arguments to the question presented. Further, while I do not myself believe that the text of §2 applies to multimember or at-large plans, the idea that such plans might be especially problematic from a vote-dilution standpoint is hardly foreign to the Court’s precedents, see Johnson v. De Grandy, 512 U. S. 997, 1012 (1994); Growe v. Emison, 507 U. S. 25, 40 (1993); cf. Holder v. Hall, 512 U. S. 874, 888 (1994) (O’Connor, J., concurring in part and concurring in judgment) (explaining that single-member districts may provide the benchmark when multimember or at-large systems are challenged, but suggesting no benchmark for challenges to single-member districts), or to the historical evolution of vote-dilution claims. Neither the case from which the 1982 Congress drew §2(b)’s current operative language, see White v. Regester, 412 U. S. 755, 766 (1973), nor the one it was responding to, Mobile v. Bolden, 446 U. S. 55 (1980), involved single-member districts.
- ↑ Justice Kavanaugh’s partial concurrence emphasizes the supposedly enhanced stare decisis force of statutory-interpretation precedents. See ante, at 1–2. This emphasis is puzzling in several respects. As an initial matter, I can perceive no conceptual “basis for applying a heightened version of stare decisis to statutory-interpretation decisions”; rather, “our judicial duty is to apply the law to the facts of the case, regardless of how easy it is for the law to change.” Gamble v. United States, 587 U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 14). Nor does that approach appear to have any historical foundation in judicial practice at the founding or for more than a century thereafter. See T. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 708–732 (1999). But, even putting those problems aside, any appeal to heightened statutory stare decisis is particularly misplaced in this context. As the remainder of this dissent explains in depth, the Court’s §2 precedents differ from “ordinary statutory precedents” in two vital ways. Ante, at 2, n. 1 (opinion of Kavanaugh, J.). The first is their profound tension with the Constitution’s hostility to racial classifications, a tension that Justice Kavanaugh acknowledges and that makes every §2 question the reverse side of a corresponding constitutional question. See ante, at 4. The second is that, to whatever extent §2 applies to districting, it can only “be understood as a delegation of authority to the courts to develop a common law of racially fair elections.” C. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 383 (2012). It would be absurd to maintain that this Court’s “notoriously unclear and confusing” §2 case law follows, in any straightforward way, from the statutory text’s high-flown language about the equal openness of political processes. Merrill v. Milligan, 595 U. S. ___, ___ (2022) (Kavanaugh, J., concurring in grant of applications for stays) (slip op., at 6).
- ↑ Like the majority, I refer to both courts below as “the District Court” without distinction.
- ↑ While Brnovich involved a time-place-and-manner voting rule, not a vote-dilution challenge to a districting plan, its analysis logically must apply to vote-dilution cases if the text of §2 covers such claims at all.
- ↑ District 7 owes its majority-black status to a 1992 court order. See Wesch v. Hunt, 785 F. Supp. 1491, 1493–1494, 1496–1497, 1501–1502 (SD Ala.), aff’d sub nom. Camp v. Wesch, 504 U. S. 902 (1992). At the time, the Justice Department’s approach to preclearance under §5 of the Act followed the “so-called ‘max-black’ policy,” which “required States, including Alabama, to create supermajority-black voting districts or face denial of preclearance.” Alabama Legislative Black Caucus v. Alabama, 575 U. S. 254, 298 (2015) (Thomas, J., dissenting). Although Wesch was a §2 case and the court-imposed plan that resulted was not subject to preclearance, see 785 F. Supp., at 1499–1500, there can be little doubt that a similar ethos dominated that litigation, in which all parties stipulated to the desirability of a 65%-plus majority-black district. See id., at 1498–1499. To satisfy that dubious need, the Wesch court aggressively adjusted the northeast and southeast corners of the previous District 7. In the northeast, where District 7 once encompassed all of Tuscaloosa County and the more or less rectangular portion of Jefferson County not included in District 6, the 1992 plan drew a long, thin “finger” that traversed the southeastern third of Tuscaloosa County to reach deep into the heart of urban Birmingham. See Supp. App. 207–208. Of the Jefferson County residents captured by the “finger,” 75.48% were black. Wesch, 785 F. Supp., at 1569. In the southeast, District 7 swallowed a jigsaw-shaped portion of Montgomery County, the residents of which were 80.18% black. Id., at 1575. Three years later, in Miller v. Johnson, 515 U. S. 900, 923–927 (1995), we rejected the “max-black” policy as unwarranted by §5 and inconsistent with the Constitution. But “much damage to the States’ congressional and legislative district maps had already been done,” including in Alabama. Alabama Legislative Black Caucus, 575 U. S., at 299 (Thomas, J., dissenting).
- ↑ I have included an Appendix, infra, illustrating the plaintiffs’ 11 proposed maps. The first 10 images display the “black-only” voting-age population of census-designated voting districts in relation to the maps’ hypothetical district lines. The record does not contain a similar illustration for the 11th map, but a simple visual comparison with the other maps suffices.
- ↑ The majority notes that this study used demographic data from the 2010 census, not the 2020 one. That is irrelevant, since the black population share in Alabama changed little (from 26.8% to 27.16%) between the two censuses. To think that this minor increase might have changed Dr. Duchin’s results would be to entirely miss her point: that proportional representation for any minority, unless achieved “by design,” is a statistical anomaly in almost all single-member-districting systems. Duchin & Spencer 764.
- ↑ Of course, bizarreness is in the eye of the beholder, and, while labels like “ ‘tentacles’ ” or “ ‘appendages’ ” have no ultimate legal significance, it is far from clear that they do not apply here. See ante, at 12. The tendrils with which the various versions of illustrative District 2 would capture black Mobilians are visually striking and are easily recognized as a racial grab against the backdrop of the State’s demography. The District 7 “finger,” which encircles the black population of the Birmingham metropolitan area in order to separate them from their white neighbors and link them with black rural areas in the west of the State, also stands out to the naked eye. The District Court disregarded the “finger” because it has been present in every districting plan since 1992, including the State’s latest enacted plan. Singleton v. Merrill, 582 F. Supp. 3d 924, 1011 (ND Ala. 2022) (per curiam). But that reasoning would allow plaintiffs to bootstrap one racial gerrymander as a reason for permitting a second. Because the question is not before us, I express no opinion on whether existing District 7 is constitutional as enacted by the State. It is indisputable, however, that race predominated in the original creation of the district, see n. 7, supra, and it is plain that the primary race-neutral justification for the district today must be the State’s legitimate interest in “preserving the cores of prior districts” and the fact that the areas constituting District 7’s core have been grouped together for decades. Karcher v. Daggett, 462 U. S. 725, 740 (1983); see also id., at 758 (Stevens, J., concurring) (explaining that residents of a political unit “often develop a community of interest”). The plaintiffs’ maps, however, necessarily would require the State to assign little weight to core retention with respect to other districts. There could then be no principled race-neutral justification for prioritizing core retention only when it preserved an existing majority-black district, while discarding it when it stood in the way of creating a new one.
- ↑ The equal-population baseline for Alabama’s seven districts is 717,154 persons per district.
- ↑ The plurality’s somewhat elliptical discussion of “the line between racial predominance and racial consciousness,” ante, at 23, suggests that it may have fallen into a similar error. To the extent the plurality supposes that, under our precedents, a State may purposefully sort voters based on race to some indefinite extent without crossing the line into predominance, it is wrong, and its predominance analysis would water down decades of racial-gerrymandering jurisprudence. Our constitutional precedents’ line between racial awareness and racial predominance simply tracks the distinction between awareness of consequences, on the one hand, and discriminatory purpose, on the other. See Miller, 515 U. S., at 916 (“ ‘Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects’ ” (alterations and some internal quotation marks omitted)); accord, Shaw I, 509 U. S. 630, 646 (1993). And our statements that §2 “demands consideration of race,” Abbott v. Perez, 585 U. S. ___, ___ (2018) (slip op., at 4), and uses a “race-conscious calculus,” De Grandy, 512 U. S., at 1020, did not imply that a State can ever purposefully sort voters on a race-predominant basis without triggering strict scrutiny.
- ↑ The plurality’s reasoning does not withstand scrutiny even on its own terms. Like Dr. Duchin, Mr. Cooper found it “necessary to consider race” to construct two majority-black districts, 2 App. 591, and he frankly acknowledged “reconfigur[ing]” the southern part of the State “to create the second African-American majority district,” id., at 610. Further, his conclusory statement that race did not “predominate” in his plans, id., at 595, must be interpreted in light of the rest of his testimony and the record as a whole. Mr. Cooper recognized communities of interest as a traditional districting principle, but he applied that principle in a nakedly race-focused manner, explaining that “the minority population in and of itself” was the community of interest that was “top of mind as [he] was drawing the plan[s].” Id., at 601. As noted, he also testified that he considered “minority voting strengt[h]” to be a “traditional redistricting principl[e]” in its own right. Id., at 591. His testimony therefore buttresses, rather than undermines, the conclusion already obvious from the maps themselves: Only a mapmaker pursuing a fixed racial target would produce them.
- ↑ The majority points to limitations of Dr. Duchin’s and Dr. Imai’s algorithms that do not undermine the strong inference from their results to the conclusion that no two-majority-black-district plan could be an appropriate proxy for the undiluted benchmark. Ante, at 26, 28–29. I have already explained why the fact that Dr. Duchin’s study used 2010 census data is irrelevant. See n. 9, supra. As for the algorithms’ inability to incorporate all possible districting considerations, the absence of additional constraints cannot explain their failure to produce any maps hitting the plaintiffs’ preferred racial target. Next, while it is true that the number of possible districting plans is extremely large, that does not mean it is impossible to generate a statistically significant sample. Here, for instance, Dr. Imai explained that “10,000 simulated plans” was sufficient to “yield statistically precise conclusions” and that any higher number would “not materially affect” the results. Supp. App. 60. Finally, the majority notes Dr. Duchin’s testimony that her “exploratory algorithms” found “thousands” of possible two-majority-black-district maps. 2 App. 622; see ante, at 27, n. 7. Setting aside that Dr. Duchin never provided the denominator of which those “thousands” were the numerator, it is no wonder that the algorithms in question generated such maps; as Dr. Duchin explained, she programmed them with “an algorithmic preference” for “plans in which there would be a second majority-minority district.” 2 App. 709. Thus, all that those algorithmic results prove is that it is possible to draw two majority-black districts in Alabama if one sets out to do so, especially with the help of sophisticated mapmaking software. What is still lacking is any justification for treating a two-majority-black-district map as a proxy for the undiluted benchmark.
- ↑ The majority lodges a similar accusation against the State’s arguments (or what it takes to be the State’s arguments). See ante, at 18 (“Alabama suggests there is only one ‘circumstance’ that matters—how the State’s map stacks up relative to the benchmark” (alteration omitted)). But its rebuke is misplaced. The “totality of circumstances” means that courts must consider all circumstances relevant to an issue. It does not mean that they are forbidden to attempt to define the substantive standard that governs that issue. In arguing that a vote-dilution claim requires judging a State’s plan relative to an undiluted benchmark to be drawn from the totality of circumstances—including, where probative, the results of districting simulations—the State argues little more than what we have long acknowledged. See Reno v. Bossier Parish School Bd., 520 U. S. 471, 480 (1997).
- ↑ To the extent it is any sort of answer to the benchmark question, it tends inevitably toward proportionality. By equating a voting minority’s inability to win elections with a vote that has been “render[ed] … unequal,” ante, at 17, the majority assumes “that members of [a] minority are denied a fully effective use of the franchise unless they are able to control seats in an elected body.” Holder, 512 U. S., at 899 (opinion of Thomas, J.). That is precisely the assumption that leads to the proportional-control benchmark. See id., at 902, 937.
- ↑ Indeed, the majority’s attempt to deflect this analysis only confirms its accuracy. The majority stresses that its understanding of Gingles permits the rejection of “plans that would bring States closer to proportionality when those plans violate traditional districting criteria.” Ante, at 21, n. 4 (emphasis added). Justice Kavanaugh, similarly, defends Gingles against the charge of “mandat[ing] a proportional number of majority-minority districts” by emphasizing that it requires only the creation of majority-minority districts that are compact and reasonably configured. Ante, at 2 (opinion concurring in part). All of this precisely tracks my point: As construed by the District Court and the majority, §2 mandates an ever closer approach to proportional control that stops only when a court decides that a further step in that direction would no longer be consistent with any reasonable application of traditional districting criteria.
- ↑ In Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. 178 (2017), the Court upheld a race-predominant district based on the assumed compelling interest of complying with §5 of the Voting Rights Act. Id., at 193–196. There, the Court was explicit that it was still merely “assum[ing], without deciding,” that the asserted interest was compelling, as the plaintiffs “d[id] not dispute that compliance with §5 was a compelling interest at the relevant time.” Id., at 193.
- ↑ While our congruence-and-proportionality cases have focused primarily on the Fourteenth Amendment, they make clear that the same principles govern “Congress’ parallel power to enforce the provisions of the Fifteenth Amendment.” City of Boerne, 521 U. S., at 518.
- ↑ This formulation does not specifically account for the District Court’s findings under the Senate factors, which, as I have explained, lack any traceable logical connection to the finding of a districting wrong or the need for a districting remedy.
- ↑ Justice Kavanaugh, at least, recognizes that §2’s constitutional footing is problematic, for he agrees that “race-based redistricting cannot extend indefinitely into the future.” Ante, at 4 (opinion concurring in part). Nonetheless, Justice Kavanaugh votes to sustain a system of institutionalized racial discrimination in districting—under the aegis of a statute that applies nationwide and has no expiration date—and thus to prolong the “lasting harm to our society” caused by the use of racial classifications in the allocation of political power. Shaw I, 509 U. S., at 657. I cannot agree with that approach. The Constitution no more tolerates this discrimination today than it will tolerate it tomorrow.
- ↑ The Court does not address whether §2 contains a private right of action, an issue that was argued below but was not raised in this Court. See Brnovich v. Democratic National Committee, 594 U. S. ___, ___ (2021) (Gorsuch, J., concurring) (slip op., at 1).