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ALLEN v. MILLIGAN

Thomas, J., dissenting

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