Allen, Alabama Secretary of State, et al. v. Milligan et al.

"United States shall guarantee to every State in this Union a Republican Form of Government ...." If Alabama refuses to implement the orders of the court, had it forfeited its republican form of government? See Baker-Carr (1962) Part IV for detailed exposition of the Guaranty-Clause.

Prior History

• 2022-02-07: Court protected Republican distristing maps in Merrill v. Milligan (2022) which were tossed by this decision. (Merrill v. Caster addressed in same order of the court.)

Consequences:

• 2023-10-28: District Court orders Georgia to redraw Congressional districts article
• 2023-09-26: Supreme Court denied Alabama's application for stay of district court ruling pending appeal.
• 2023-09-05: District Court: determination that Alabama's revised map "is racially gerrymandered in violation of the United States Constitution"
• 2023-07-26: Ian Millhiser article on Alabama's new maps.
• 2023-07-23: District Court: "... the parties are DIRECTED to submit three to five names of proposed cartographers at or before 12:00 NOON CDT on FRIDAY, JULY 28, 2023."
• 2023-07-21: Alabama redraws congressional maps. New maps are not in accord with this decision.

Notable Items:

• Note Gomillion v. Lightfoot, 364 U. S. 339 (AL again) relying upon elying upon, inter alia, Hunter v. Pittsburgh, 207 U. S. 161 in Part IV of Baker-Carr (1962) page 229
• Alabama's propsed rewriting of VRA 2 rejected in full.
• Gingles test based upon effect not intent.
• Gingles applies to race (only?)
• Talk of 'one' or 'a' single-member district is not cogent. Court reviews all single-member districts of a state as a group.
• Alito (and Thomas? need to finish reading dissent) reject Gingles and conflate the race-based preconditions for bringing a VRA §2 action with the test to determine a VRA §2 violation.
• Dissenters (and Alabama's) focus on a benchmark appears to be an extraneous consideration not within the Gingles "totality of circumstances" test for a VRA §2 violation.
• Thomas: It [VRA §2] 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.
• From 2019 research paper on Massachusetts: "But the Massachusetts data contain five actual vote distributions (Pres 00, Pres 04, Sen 06, Pres 08, Sen 08) for which even an omniscient redistricter with the honorable goal of EG = 0 could not succeed: not a single one of the many quintillions of possible 9-district plans has an efficiency gap below 11% in any of those five races. This shows that finding a reasonable baseline to decide when gerrymandering has occurred is a subtler problem than has so far been appreciated in the public discourse or in some of the mainstream political science literature." (emphasis added)
• The word "benchmark" is used over one hundred times in the Allen-Milligan (2023) . The court was provided the method to determine the benchmark in the Mathematician's Brief in Rucho-CommonCause (2019) . Alito, Thomas, Gorsuch, Barrett want a race-neutral” map, an item that is singularly distinguished from the {m,b,tr}illions of possible redistricting maps--an unattainable result.

Issue(s) Before the Court:

Petitioner's Claim(s):

• The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our §2 jurisprudence anew.
• The centerpiece of the State’s effort is what it calls the “race-neutral benchmark.”
• ...
• Alabama also argues that the race-neutral benchmark is required because our existing §2 jurisprudence inevitably demands racial proportionality in districting, contrary to the last sentence of §2(b).
• Alabama finally asserts that the Court should outright stop applying §2 in cases like these because the text of §2 does not apply to single-member redistricting and because §2 is unconstitutional as the District Court applied it here.
• [Additionally] The State nevertheless argues that plaintiffs’ maps were not reasonably configured because they failed to keep together a traditional community of interest within Alabama. A “community of interest,” according to Alabama’s districting guidelines, is an “area with recognized similarities of interests, including but not limited to ethnic, racial, economic, tribal, social, geographic, or historical identities.” Alabama argues that the Gulf Coast region in the southwest of the State is such a community of interest, and that plaintiffs’ maps erred by separating it into two different districts.

Respondent's Claim(s):

• First, the State argues that a race-neutral benchmark best matches the text of the Voting Rights Act.
• Second, Alabama argues that the Gingles framework ends up requiring racial proportionality in districting.
• To apply the race-neutral benchmark in practice, Alabama would require §2 plaintiffs to make at least three showings
  1. First, the illustrative plan that plaintiffs adduce for the first Gingles precondition cannot have been “based” on race. [See above: “minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.” Therefore "minority group" must not be "based" on race?] [Eliminate race from the Fifthteen Amendment.]
  2. Second, plaintiffs must show at the totality of circumstances stage that the State’s enacted plan diverges from the average plan that would be drawn without taking race into account.
  3. And finally, plaintiffs must ultimately prove that any deviation between the State’s plan and a race-neutral plan is explainable “only” by race—-not, for example, by “the State’s naturally occurring geography and demography.”

Holding(s) and Disposition:

Material Facts:

• [experienced mapmaker Randy] Hinaman worked to adjust the 2011 map in accordance with the redistricting guidelines set by the legislature’s Reapportionment Committee.
• Those guidelines prioritized population equality, contiguity, compactness, and avoiding dilution of minority voting strength.
• They also encouraged, as a secondary matter, avoiding incumbent pairings, respecting communities of interest, minimizing the number of counties in each district, and preserving cores of existing districts.
• The Alabama Legislature enacted Hinaman’s map under the name HB1.

Procedural History:

• In January 2022, a three-judge District Court sitting in Alabama preliminarily enjoined the State from using the districting plan it had recently adopted for the 2022 congressional elections, finding that the plan likely violated Section 2 of the Voting Rights Act, 52 U. S. C. §10301.
• This Court stayed the District Court’s order pending further review. 595 U. S. ___ (2022). [Allowing the 2022 election to proceed using maps to be declared unconstitutional.]
• After conducting that review, we now affirm.

Rationale

Roberts Majority Opinion (Sotomayor, Kagan, Jackson, Kavanaugh but for III-B-1)

• Alabama's rewrite of Gingles is without merit or basis.
• Alabama's proposal fails in each detail as well as when considered whole.
• A full description of the rationale is available below

Kavanaugh Concurrance in part, dissent in part (III-B-1)

• I write separately to emphasize four points.
  1. First, the upshot of Alabama’s argument is that the Court should overrule Gingles. Although statutory stare decisis is not absolute, “the Court has ordinarily left the updating or correction of erroneous statutory precedents to the legislative process.”
  2. Second, Alabama contends that Gingles inevitably requires a proportional number of majority-minority districts .... But Gingles and this Court’s later decisions have flatly rejected that approach.
  3. Third, Alabama argues that courts should rely on race-blind computer simulations of redistricting maps to assess whether a State’s plan abridges the right to vote on account of race. But as this Court has long recognized—and as all Members of this Court today agree—the text of [VRA] §2 establishes an effects test, not an intent test. And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing—-whether intentional or not-—of large and geographically compact minority populations.
  4. Fourth, Alabama asserts that §2, as construed by Gingles to require race-based redistricting in certain circumstances, exceeds Congress’s remedial or preventive authority under the Fourteenth and Fifteenth Amendments. As the Court explains, the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents.
• For those reasons, I vote to affirm, and I concur in all but Part III–B–1 of the Court’s opinion.
• [all merits considerations. compare with Kavanaugh's concurrence in Merrill v. Milligan (2022) .

Thomas Dissent (Gorsuch, Barrett, Alito, all in part)

• These cases “are yet another installment in the ‘disastrous misadventure’ of this Court’s voting rights jurisprudence.”
• 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
• 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.
• Part I
• I have long been convinced that those words [voting qualification or prerequisite to voting or standard, practice, or procedure.”] 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 [What can?]
• 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.
• 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.
• 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, (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)).
• 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
• Part II
• Even if §2 applies here, however, Alabama should prevail.
• 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.
• Part II A
• 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.
• Yet §2 vote-dilution cases require nothing less.
• 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.
• 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.
• 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.
• 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.
• Part II B
• 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....
• 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.
• 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
• Part II C [benchmark and map counting]
• Part II 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.
• ... we have never succeeded in translating the Gingles framework into an objective and workable method of identifying the undiluted benchmark. ["totality of circumstances" not a benchmark]
• 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.
• 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.
• “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.
• ... 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 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.
• Part II E
• 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 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.
• 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.”
• 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 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)
• 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.
• Part III
• 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.
• 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)
• 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.
• 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
• 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.”
• It [VRA §2] 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.
• Part IV
• Better yet, it [this court] 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.

Alito Dissent (Gorsuch)

• Part A: review of Gingles preconditions and "totality".
• Part B
• My fundamental disagreement with the Court concerns the first Gingles precondition. [“minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.”]
• Two Terms ago, we engaged in a close analysis of the text of §2 and explained that its “key requirement” is that the political processes leading to nomination or election must be “ ‘equally open to participation’ by members of a protected class.” Brnovich v. Democratic National Committee
• When the race of one group is the predominant factor in the creation of a district, that district goes beyond making the electoral process equally open to the members of the group in question.
• It gives the members of that group an advantage that §2 does not require and that the Constitution may forbid. [no advantage if race criteria used to crack the group population.]
• And because the creation of majority-minority districts is something of a zero-sum endeavor, giving an advantage to one minority group may disadvantage others. [not advantage. elimination of harm.]
• Part C
• What all this means is that a §2 plaintiff who claims that a districting map violates §2 because it fails to include an additional majority-minority district must show at the outset that such a district can be created without making race the predominant factor in its creation. ["“minority group must be" is the language of all three Gingles preconditions. race is a protected class.]
• ... a plaintiff can satisfy the former burden simply by adducing evidence-—in any acceptable form—-that race did not predominate. [Gingles based on effect, not intent.]
• Our cases make it perfectly clear that using race as a “predominant factor” in drawing legislative districts is unconstitutional unless the stringent requirements of strict scrutiny can be satisfied .... [[Gingles based on effect, not intent.]
• Part C II (no "Part C I" in dissent)
• It is true that the District Court addressed the question of race-predominance when it discussed and rejected the State’s argument that the plaintiffs’ maps violated the Equal Protection Clause, but the court’s understanding of predominance was deeply flawed.
• The court thought that a §2 plaintiff cannot proffer a reasonably configured majority-minority district without first attempting to see if it is possible to create such a district—that is, by first making the identification of such a district “non-negotiable.” [each Gingles precondition is non-negotiable...must be met to bring a VRA §2 action]
• Part III A
• And as we held in Brnovich, “[t]he key requirement” set out in the text of §2 is that a State’s electoral process must be “ ‘equally open’ ” to members of all racial groups.
• The Gingles framework should be interpreted in a way that gives effect to this standard.
• ... it is unconstitutional to use race as a “predominant” factor in legislative districting.
• Part III B
• Part IV A
• In my view, there is strong evidence that race played a predominant role in the production of the plaintiffs’ illustrative maps and that it is most unlikely that a map with more than one majority-black district could be created without giving race such a role.
• Part IV B
• The plurality’s position seems to be that race does not predominate in the creation of a districting map so long as the map does not violate other traditional districting criteria such as compactness, contiguity, equally populated districts, minimizing county splits, etc.
• The Court’s treatment of Gingles is inconsistent with the text of §2, our precedents on racial predominance, and the fundamental principle that States are almost always prohibited from basing decisions on race.

Majority Full Argument

• Part I (review of facts)
• Part I A
• Spurred by the Civil Rights movement, Congress enacted and President Johnson signed into law the Voting Rights Act. 79 Stat. 437, as amended, 52 U. S. C. §10301 et seq.
• The Fifteenth Amendment—and thus §2—prohibits States from acting with a “racially discriminatory motivation” or an “invidious purpose” to discriminate. Id., at 61–65 (plurality opinion).
• But it does not prohibit laws that are discriminatory only in effect. Ibid.
• The (1982) amended §2 reads as follows: “(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ... as provided in subsection (b). “(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens ... 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 or political subdivision 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.” 52 U. S. C. §10301.
• Part I B
• [experienced mapmaker Randy] Hinaman worked to adjust the 2011 map in accordance with the redistricting guidelines set by the legislature’s Reapportionment Committee.
• Those guidelines prioritized population equality, contiguity, compactness, and avoiding dilution of minority voting strength.
• They also encouraged, as a secondary matter, avoiding incumbent pairings, respecting communities of interest, minimizing the number of counties in each district, and preserving cores of existing districts.
• The Alabama Legislature enacted Hinaman’s map under the name HB1.
• Part I C
• Three groups of plaintiffs brought suit seeking to stop Alabama’s Secretary of State from conducting congressional elections under HB1.
• After reviewing that extensive record, the [District] Court concluded in a 227-page opinion that the question whether HB1 likely violated §2 was not “a close one.” It did. [emphasis added]
• The Court thus preliminarily enjoined Alabama from using HB1 in forthcoming elections.
• Four days later, on January 28, Alabama moved in this Court for a stay of the District Court’s injunction.
• This Court granted a stay and scheduled the cases for argument, noting probable jurisdiction in Milligan and granting certiorari before judgment in Caster. 595 U. S. ___ (2022).
• Part II (review of judicial proceedings)
• The District Court found that plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2. We affirm that determination. [emphasis added]
• Part II A
• For the past forty years, we have evaluated claims brought under §2 using the three-part framework developed in our decision Thornburg v. Gingles, 478 U. S. 30 (1986).
• “The essence of a §2 claim,” the Court explained, “is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters.”
• That occurs where an “electoral structure operates to minimize or cancel out” minority voters’ “ability to elect their preferred candidates.”
• To succeed in proving a §2 violation under Gingles, plaintiffs must satisfy three “preconditions.”
  1. First, the “minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.” Wisconsin Legislature v. Wisconsin Elections Comm’n, 595 U. S. ___, ___ (2022) (per curiam). A district will be reasonably configured, our cases explain, if it comports with traditional districting criteria, such as being contiguous and reasonably compact. See Alabama Legislative Black Caucus v. Alabama, 575 U. S. 254, 272 (2015).
  2. “Second, the minority group must be able to show that it is politically cohesive.”
  3. And third, “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... to defeat the minority’s preferred candidate.”
• Finally, a plaintiff who demonstrates the three preconditions must also show, under the “totality of circumstances,” that the political process is not “equally open” to minority voters.
• Each Gingles precondition serves a different purpose.
• Before courts can find a violation of §2, therefore, they must conduct “an intensely local appraisal” of the electoral mechanism at issue, as well as a “searching practical evaluation of the ‘past and present reality.’ ”
• Part II B
• With respect to the first Gingles precondition, the District Court correctly found that black voters could constitute a majority in a second district that was “reasonably configured.”
• We agree with the District Court, therefore, that plaintiffs’ illustrative maps “strongly suggest[ed] that Black voters in Alabama” could constitute a majority in a second, reasonably configured, district.
• Even if the Gulf Coast did constitute a community of interest, moreover, the District Court found that plaintiffs’ maps would still be reasonably configured because they joined together a different community of interest called the Black Belt.
• But this Court has never held that a State’s adherence to a previously used districting plan can defeat a §2 claim.
• If that were the rule, a State could immunize from challenge a new racially discriminatory redistricting plan simply by claiming that it resembled an old racially discriminatory plan.
• That is not the law: §2 does not permit a State to provide some voters “less opportunity ... to participate in the political process” just because the State has done it before. [deeply embedded in our (state's) history and tradition)
• As to the second and third Gingles preconditions, the District Court determined that there was “no serious dispute that Black voters are politically cohesive, nor that the challenged districts’ white majority votes sufficiently as a bloc to usually defeat Black voters’ preferred candidate.”
• Finally, the District Court concluded that plaintiffs had carried their burden at the totality of circumstances stage.
• We see no reason to disturb the District Court’s careful factual findings, which are subject to clear error review and have gone unchallenged by Alabama in any event.
• Part III
• The heart of these cases is not about the law as it exists.
• It is about Alabama’s attempt to remake our §2 jurisprudence anew.
• Using modern computer technology, mapmakers can now generate millions of possible districting maps for a given State.
• The maps can be designed to comply with traditional districting criteria but to not consider race. [which may be designed to prevent the election of minority candidates.]
• The mapmaker can determine how many majority-minority districts exist in each map, and can then calculate the median or average number of majority-minority districts in the entire multi-million-map set.
• That number is called the race-neutral benchmark.
• Alabama contends that its approach should be adopted for two reasons.
• First, the State argues that a race-neutral benchmark best matches the text of the Voting Rights Act.
• Second, Alabama argues that the Gingles framework ends up requiring racial proportionality in districting.
• To apply the race-neutral benchmark in practice, Alabama would require §2 plaintiffs to make at least three showings
  1. First, the illustrative plan that plaintiffs adduce for the first Gingles precondition cannot have been “based” on race. [See above: “minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.” Therefore "minority group" must not be "based" on race?] [Eliminate race from the Fifthteen Amendment.]
  2. Second, plaintiffs must show at the totality of circumstances stage that the State’s enacted plan diverges from the average plan that would be drawn without taking race into account.
  3. And finally, plaintiffs must ultimately prove that any deviation between the State’s plan and a race-neutral plan is explainable “only” by race—-not, for example, by “the State’s naturally occurring geography and demography.”
• Part III A 1 [reason to reject Alabama's computer generated baseline.]
• To that end, we have reiterated that §2 turns on the presence of discriminatory effects, not discriminatory intent. See, e.g., Chisom v. Roemer, 501 U. S. 380, 403–404 (1991).
• A district is not equally open, in other words, 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.
• And we decline to adopt an interpretation of §2 that would “revise and reformulate the Gingles threshold inquiry that has been the baseline of our §2 jurisprudence” for nearly forty years.
• Part III A 2
• But properly applied, the Gingles framework itself imposes meaningful constraints on proportionality, as our decisions have frequently demonstrated.
• Though North Carolina believed the additional district was required by §2, we rejected that conclusion, finding instead that those challenging the map stated a claim of impermissible racial gerrymandering under the Equal Protection Clause. ["“160 miles long and, for much of its length, no wider than the [interstate] corridor.” [See Shaw v. Reno] "]
• North Carolina had “concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions.” [See Shaw v. Reno]
• The same theme emerged in our 1995 decision Miller v. Johnson, where we upheld a district court’s finding that one of Georgia’s ten congressional districts was the product of an impermissible racial gerrymander.
• ... they constituted racial gerrymanders in violation of the Fourteenth Amendment. That was because the dis tricts had “no integrity in terms of traditional, neutral redistricting criteria.” [ See Bush v. Vera]
• Part III B
• ... we also address how the race-neutral benchmark would operate in practice.
• Part III B 1 (Kavanaugh does NOT concur to this section. Plurality only.)
• When it comes to considering race in the context of districting, we have made clear that there is a difference “between being aware of racial considerations and being motivated by them.”
• The former is permissible; the latter is usually not.
• At the same time, however, race may not be “the predominant factor in drawing district lines unless [there is] a compelling reason.”
• The second flaw in the dissent’s proposed approach is its inescapable consequence: Gingles must be overruled.
• The contention that mapmakers must be entirely “blind” to race has no footing in our §2 case law.
• Plaintiffs adduced at least one illustrative map that comported with our precedents.
• They were required to do no more to satisfy the first step of Gingles.
• Part III B 2
• Districting involves myriad considerations—compactness, contiguity, political subdivisions, natural geographic boundaries, county lines, pairing of incumbents, communities of interest, and population equality. See Miller
• And “[i]t is easy to imagine how different criteria could move the median map toward different ... distributions,” meaning that “the same map could be [lawful] or not depending solely on what the mapmakers said they set out to do.” Rucho v. Common Cause [intent predominates]
• Section 2 cannot require courts to judge a contest of computers when there is no reliable way to determine who wins, or even where the finish line is.
• Part III B 3
• As we have already explained, our precedents and the legislative compromise struck in the 1982 amendments clearly rejected treating discriminatory intent as a requirement for liability under [VRA] §2.
• Alabama’s proposed approach stands in sharp contrast to all this, injecting into the effects test of §2 an evidentiary standard that even our purposeful discrimination cases eschew.
• Part III C
• Alabama first argues that §2 does not apply to single-member redistricting.
• This understanding of §2 cannot be reconciled with our precedent.
• We also reject Alabama’s argument that §2 as applied to redistricting is unconstitutional under the Fifteenth Amendment.
• Alabama further argues that, even if the Fifteenth Amendment authorizes the effects test of §2, that Amendment does not authorize race-based redistricting as a remedy for §2 violations.
• But for the last four decades, this Court and the lower federal courts have repeatedly applied the effects test of §2 as interpreted in Gingles and, under certain circumstances, have authorized race-based redistricting as a remedy for state districting maps that violate [VRA] §2. [effects, not intent]
• The judgments of the District Court for the Northern District of Alabama in the Caster case, and of the three-judge District Court in the Milligan case, are affirmed.
• The core of the rationale is available above