Page:Allen v. Milligan.pdf/78

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Cite as: 599 U. S. ____ (2023)

33

Thomas, J., dissenting

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.^[1] 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.^[2] This ap-

↑ 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

[1] 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.

[p33-2] 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

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