Merrill v. Milligan

"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.

Notable Items:

Issue(s) Before the Court:

Petitioner's Claim(s):

• ... the State had instead “pack[ed]” much of the Black population into a single district, and “crack[ed]” the remainder over three others. Id., at 36–41. That action, the plaintiffs contended, diluted their voting power.

Respondent's Claim(s):

• ... that the proposed plans do not satisfy the first Gingles condition because the plaintiffs’ experts did not draw them with race wholly out of mind—“using only race-neutral cri-

Holding(s) and Disposition:

Material Facts:

• 2021-11-04: Alabama adopts districting maps.
• 2022-03-30: First day of absentee voting in Alabama.
• 2022-05-24: Date of primary elections in Alabama.
• 2022-11-08: Date of general elections in the United States.

Procedural History:

• 2021-11-16: Alabama State Conference of the NAACP, et. al. files complaint.
• 2022-01-24: United States District Court Northern District of Alabama Southern Division court order preventing Alabama from using districting maps adopted 2021-11-04. (full history? of the proceedings.)
• 2023-06-08: Court tossed out Republican distristing maps in Allen, Alabama Secretary of State, et al. v. Milligan et al. (2023) which were protected by this decision. (Merrill v. Caster addressed in same order of the court.)

Rationale

Majority Opinion

Kavanaugh Concurrance (Alito)

• I write separately to explain my vote, and to briefly respond to the principal dissent.
• The stay order does not make or signal any change to voting rights law.
• The stay order follows this Court’s election-law precedents, which establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when, as here, lower federal courts contravene that principle. See, e.g., Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam).
• The principal dissent’s catchy but worn-out rhetoric about the “shadow docket” is similarly off target.
• ... the State [of Alabama] argues that the District Court’s injunction is a prescription for chaos for candidates, campaign organizations, independent groups, political parties, and voters, among others.
• Under our precedents, a party asking this Court for a stay of a lower court’s judgment pending appeal or certiorari ordinarily must show (i) a reasonable probability that this Court would eventually grant review and a fair prospect that the Court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam)
• As the Court has often indicated, however, that traditional test for a stay does not apply (at least not in the same way) in election cases when a lower court has issued an injunction of a state’s election law in the period close to an election. See Purcell, 549 U. S. 1.
• It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election. [the claimed election chaos would result regardless of the cause: state changes or judicial changes]
• [Kavanaugh suggests when Purcell might not apply]
• In short, the Purcell principle requires that we stay the District Court’s injunction with respect to the 2022 elections.
• [Note 3] Correcting an erroneous lower court injunction of a state election law does not itself constitute a Purcell problem.

Roberts Dissent

• ... the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.
• In order to resolve the wide range of uncertainties arising under Gingles, I would note probable jurisdiction in Milligan and grant certiorari before judgment in Caster, setting the cases for argument next Term.
• ... the analysis below seems correct as Gingles is presently applied, and in my view the District Court’s analysis should therefore control the upcoming election.

Kagan Dissent (Breyer, Sotomayor)

• Usually, when a litigant applies to this Court for a stay, it argues that the lower court erred under current law. But Alabama’s application cannot be understood in that way.
• Accepting Alabama’s contentions would rewrite decades of this Court’s precedent about Section 2 of the VRA.
• Staying its i[the district court's] decision forces Black Alabamians to suffer what under that law is clear vote dilution.
• I
• Alabama’s population is 27% Black, but under the plan, Black voters have the power to elect their preferred candidate in only one of the State’s seven congressional districts.
• What raises the prospect of a Section 2 claim is that Alabama’s Black population is heavily “concentrated” in the urban population centers and an area of the State known as the Black Belt, “named for the region’s fertile black soil,” where many enslaved people were taken during the antebellum period.
• But the State had instead “pack[ed]” much of the Black population into a single district, and “crack[ed]” the remainder over three others. Id., at 36–41. That action, the plaintiffs contended, diluted their voting power.
• plaintiffs must satisfy three conditions, often referred to as the Gingles conditions. Those conditions are: (1) that the “minority group is sufficiently large and geographically compact to constitute a majority” in a district, (2) that the minority group “is politically cohesive,” and (3) that the “white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.” Growe v. Emison, 507 U. S. 25, 40 (1993) (quoting Thornburg v. Gingles, 478 U. S. 30, 50–51 (1986))
• If plaintiffs satisfy those conditions, they must then show that a Section 2 “violation has occurred based on the totality of the circumstances.” Bartlett v. Strickland, 556 U. S. 1, 12 (2009) (plurality opinion).
• Under our precedent, plaintiffs have long satisfied the first Gingles condition—the only condition at issue in Alabama’s stay application—by showing that another “reasonably compact” majority-minority district can be drawn, consistent with “traditional districting principles.” See, e.g., League of United Latin American Citizens v. Perry, 548 U. S. 399, 430, 433 (2006) (LULAC).
• Based on that record, the District Court found that the plaintiffs’ 11 illustrative plans (each with a second majority-Black district) complied with traditional districting criteria as well as or better than Alabama’s enacted plan. [emphasis added]
• The District Court also found that the plaintiffs made the required showings on the other Gingles conditions and the totality of the circumstances.
• ... the District Court held that the record “compels” the conclusion that Alabama’s redistricting plan “substantially likely violates Section Two.”
• II
• ... Alabama argues that the proposed plans do not satisfy the first Gingles condition because the plaintiffs’ experts did not draw them with race wholly out of mind—“using only race-neutral cri- teria.”
• ... the State [of Alabama] seeks to graft onto the VRA a new requirement, lacking any foundation in our precedent. [emphasis added]
• Plaintiffs can now use technology to generate millions of possible plans, without any attention to race. Alabama claims that some number of those plans (what number is unclear) must contain an additional majority-Black district for Section 2 plaintiffs to satisfy the first Gingles condition.
• ... the record gives Alabama no basis for arguing that this case would come out differently under its race-blind computer-simulation approach.
• Alabama’s brief centers on the supposedly show-stopper claim that one of the plaintiffs’ experts had randomly generated a large number of Alabama plans, and produced not a one with two majority-Black districts. See id., at 1, 21–24. But as an initial matter, Alabama never introduced that expert’s study into the record, and the testimony about it takes up just four pages of a nearly 2,000-page hearing transcript. See App. 236, 346–349. In any event, the analysis was based on stale 2010 census data—not the relevant 2020 data, which showed a relative increase in Alabama’s Black population.
• So Alabama’s application for a stay rests on only this much: a single study not in the record that supposedly—but not actually—shows that the plaintiffs cannot comply with a requirement we have never adopted (and that stands in some tension with Gingles). [emphasis added]
• Alabama’s challenge to the District Court’s decision cannot succeed unless this Court adopts a novel legal rule. And more—a novel legal rule of potentially large consequence. See, e.g., J. Chen & N. Stephanopoulos, The Race-Blind Future of Voting Rights, 130 Yale L. J. 862 (2021)
• Here, the District Court carefully and correctly applied the now-existing law and concluded that Alabama has unlawfully diluted the voting power of Black Alabamians.
• This Court is wrong to stay that decision based on a hastily made and wholly unexplained prejudgment that it is ready to change the law.
• III
• As to the equities, Alabama does not—because it cannot—contend that redrawing its map in advance of this year’s elections would be impossible.
• And Alabama cannot here invoke the so-called Purcell principle, which disfavors changing election rules at the eleventh hour. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam).
• This Court has previously denied stays of districting orders issued at similar times. See, e.g., Harris v. McCrory, 159 F. Supp. 3d 600 (MDNC) (enjoining a State from using its enacted map in February of an election year, despite mid-March primary), stay denied, 577 U. S. 1129 (2016); Personhuballah v. Alcorn, 155 F. Supp. 3d 552 (ED Va.) (imposing a new remedial map in January of an election year, despite mid-June primary), stay denied, 577 U. S. 1125 (2016).
• * * *
• Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.
• Yet today the Court skips that step [thorough consideration through briefing and oral argument], staying the District Court’s order based on the untested and unexplained view that the law needs to change.

Majority Full Argument

• The core of the rationale is available above