MERRILL v. MILLIGAN

SUPREME COURT OF THE UNITED STATES

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Nos. 21A375 (21–1086) and 21A376 (21–1087)

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JOHN H. MERRILL, ALABAMA SECRETARY OF STATE, et al.

21A375 (21–1086) v.

EVAN MILLIGAN, et al.

JOHN H. MERRILL, ALABAMA SECRETARY OF STATE, et al.

21A376 (21–1087) v.

MARCUS CASTER, et al.

on applications for stays or injunctive relief

 Chief Justice Roberts, dissenting from grant of applications for stays.

 I respectfully dissent from the stays granted in these cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction. The governing standard for vote dilution claims under section 2 of the Voting Rights Act is set forth in Thornburg v. Gingles, 478 U. S. 30 (1986), which requires “the minority group . . . to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Id., at 50. The District Court reviewed the submissions of the plaintiffs’ experts and explained at length the factbound bases for its conclusion that the plaintiffs had made that showing. See post, at 3–4 (Kagan, J., dissenting).

 But while the District Court cannot be faulted for its application of Gingles, it is fair to say that Gingles and its  

 progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim. See Gingles, 478 U. S., at 97 (O’Connor, J., concurring in judgment) (characterizing the Court’s approach at the outset as “inconsistent with . . . §2’s disclaimer of a right to proportional representation”); Johnson v. De Grandy, 512 U. S. 997, 1028 (1994) (Kennedy, J., concurring in part and concurring in judgment) (warning that “placing undue emphasis upon proportionality risks defeating the goals underlying the Voting Rights Act”); Gonzalez v. Aurora, 535 F. 3d 594, 597 (CA7 2008) (Easterbrook, J.) (referring to section 2’s “famously elliptical” language). See also J. Chen & N. Stephanopoulos, The Race-Blind Future of Voting Rights, 130 Yale L. J. 862, 871 (2021) (describing section 2 vote dilution doctrine as “an area of law notorious for its many unsolved puzzles”); C. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 389 (2012) (noting the lack of any “authoritative resolution of the basic questions one would need to answer to make sense of the results test”).

 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. But I would not grant a stay. As noted, 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. The practical effect of this approach would be that the 2022 election would take place in accord with the judgment of the District Court, but subsequent elections would be governed by this Court’s decision on review.

SUPREME COURT OF THE UNITED STATES

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Nos. 21A375 (21–1086) and 21A376 (21–1087)

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JOHN H. MERRILL, ALABAMA SECRETARY OF STATE, et al.

21A375 (21–1086) v.

EVAN MILLIGAN, et al.

JOHN H. MERRILL, ALABAMA SECRETARY OF STATE, et al.

21A376 (21–1087) v.

MARCUS CASTER, et al.

on applications for stays or injunctive relief

 Justice Kagan, with whom Justice Breyer and Justice Sotomayor join, dissenting from grant of applications for stays.

 After considering a massive factual record, developed over seven days of testimony, and reviewing more than 1,000 pages of briefing, a three-judge District Court held that Alabama’s redistricting plan violated Section 2 of the Voting Rights Act (VRA). The District Court (including two judges from the State) found that the plan unlawfully diluted the votes of the State’s Black population, and ordered the State to devise a new plan for the 2022 elections. Alabama now seeks a stay of that ruling. 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. For that reason, this Court goes 

 badly wrong in granting a stay. There may—or may not—be a basis for revising our VRA precedent in light of the modern districting technology that Alabama’s application highlights. But such a change can properly happen only after full briefing and argument—not based on the scanty review this Court gives matters on its shadow docket. The District Court here did everything right under the law existing today. Staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution. With respect, I again dissent from a ruling that “undermines Section 2 and the right it provides.” Brnovich v. Democratic National Committee, 594 U. S. ___, ___ (2021) (Kagan, J., dissenting) (slip op., at 2).¹

 I

 Following the 2020 census, the plaintiffs here challenged Alabama’s newly enacted redistricting plan under Section 2. 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. That alone does not demonstrate vote dilution. 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. App. to Application in No. 21A375, pp. 36–37, 160–161 (App.). Because “Black voters in Alabama are relatively geographically compact,” the plaintiffs argued that the State could have drawn a second congressional district, meeting traditional districting criteria, in which Black Alabamians would constitute a majority. Id., at 161. 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.

 The Court’s longstanding precedent imposes strict requirements for proving a vote-dilution claim. To start, 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); alterations omitted). 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). Those circumstances include the history of race-based discrimination in the State (especially as to voting rights), the extent to which voting is racially polarized, and the extent to which minority candidates have struggled to get elected to public office. See Gingles, 478 U. S., at 36–37, 44–45.

 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). Those principles include—in addition to compactness—contiguity, respect for existing political subdivisions, and the desire to keep together existing communities of interest.² See id., at 433; Alabama Legislative Black Caucus v. Alabama, 575 U. S. 254, 272 (2015). To make the requisite showing, plaintiffs typically submit one or more illustrative, alternative maps complying with traditional districting criteria while also adding a majority-minority district.

 The plaintiffs here did just that. In a seven-day preliminary injunction hearing with live testimony from 17 witnesses, they built an extensive factual record, including substantial evidence going to the ease of creating a second majority-Black district. 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. As the court explained, the plaintiffs’ proposed plans “have nearly zero population deviation, include only contiguous districts, include districts that are at least as geographically compact as those in [Alabama’s] Plan, respect traditional boundaries and subdivisions at least as much as [Alabama’s] Plan, protect important communities of interest, [and] protect incumbents where possible.” App. 173. Alabama’s efforts to rebut the plaintiffs’ showing hinged on an expert to whom the District Court gave “very little weight.” Id., at 152. The court explained that his testimony was riddled with “internal inconsistencies and vacillations,” and that he often “offered an opinion without a sufficient basis (or in some instances any basis).” Id., at 153, 155–156. And even that expert had to concede that, as to compactness, the plaintiffs’ plans “perform generally better on average” than the enacted state plan. Id., at 158. Faced with that mountain of evidence, the District Court found the first Gingles condition met. Indeed, the court noted that just eyeballing the map of Alabama’s Black population (as printed below) shows how “eas[y]” it is—given the shape of the Black Belt and the nearby locations of Birmingham and Mobile—to “draw two reasonably configured majority-Black districts.” App. 160–161.

Figure 1. Black Voting-Age Population Share

  The District Court also found that the plaintiffs made the required showings on the other Gingles conditions and the totality of the circumstances. The court stated that “there is no serious dispute that Black voters [in Alabama] are ‘politically cohesive,’ nor that the challenged districts’ white majority votes ‘sufficiently as a bloc to usually defeat [Black voters’] preferred candidate[s].’ ” App. 174 (quoting Cooper v. Harris, 581 U. S. ___, ___ (2017) (slip op., at 13)) (second alteration in original). Too, the court found that the vast majority of factors considered in the totality-of- circumstances inquiry favored the plaintiffs, including the “extent to which voting . . . is racially polarized” (very), the “extent to which members of the minority group have been elected to public office” (rarely), and the history of voting-rights discrimination in the State (significant). App. 178–193. The court noted that recent political campaigns in Alabama had included “obvious and overt appeals to race.” Id., at 190. (To take just two, Congressman Mo Brooks “repeatedly claimed that Democrats [were] waging a ‘war on whites,’ ” and Roy Moore asserted that the Civil Rights Amendments to the Constitution “ ‘completely tried to wreck the form of government that our forefathers intended.’ ” Id., at 189–190.) After all this, the court considered whether, under Alabama’s plan, “the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population.” LULAC, 548 U. S., at 426. The court found it was not, noting that Black Alabamians are 27% of the population but have meaningful influence over just 14% of congressional seats. App. 194. Or put another way, “less than one-third of Alabama’s Black population resides in a  majority-Black district, while 92% of Alabama’s non- Hispanic white population resides in a majority-white district.” Id., at 194–195.

 In light of that “extremely robust body of evidence,” the District Court held that the record “compels” the conclusion  that Alabama’s redistricting plan “substantially likely violates Section Two.” Id., at 196, 236. Indeed, the District Court did “not regard the question” whether the plaintiffs were “substantially likely to prevail on the merits of their Section Two claim as a close one.” Id., at 195.

II

 Alabama insists that the District Court’s decision is wrong, even though the State does not contest any of the findings outlined above. Alabama does not argue, for example, that its enacted plan performs better than the plaintiffs’ proposed plans when measured against traditional districting criteria like compactness. Rather, 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 criteria.” Application in No. 21A375, p. 19 (Application). The State would essentially require the plaintiffs to demonstrate that modern map-drawing software, designed to give no attention at all to race, would produce maps with two majority-Black districts. See id., at 25–26.

 But in making that claim, the State seeks to graft onto the VRA a new requirement, lacking any foundation in our precedent. The first Gingles condition (recall only the initial step in a much larger analysis) asks a question specifically about race: Is a minority group “sufficiently large and geographically compact to constitute a majority” in an additional district, consistent with traditional districting criteria? Growe, 507 U. S., at 40; see supra, at 3. Consistent with the nature of that question, the plaintiffs here did what plaintiffs in a Section 2 case have always done: They hired experts and charged them with the task of drawing maps with another reasonably configured majority-Black district. That has been the very project of the first Gingles condition: If plaintiffs cannot produce such illustrative maps—showing that what they are asking for is possible— their claim fails at an early stage of the litigation. See Strickland, 556 U. S., at 18–19. At no time has this Court held that plaintiffs must answer the race-infused question of the first Gingles condition without any awareness of race; indeed, until recently, that would have been well-nigh impossible. In Alabama’s view, though, the advent of computerized districting should change the way the first Gingles condition operates. 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. See Reply to Application in  No. 21A375, p. 1. But whatever the pros and cons of that method, this Court has never demanded its use; we have not so much as floated the idea, let alone considered how it would work. Alabama’s stay request, then, is premised on an entirely new view of what the law requires.

 To make matters worse, 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. And it did not account for several of Alabama’s traditional districting criteria, including keeping communities of interest (like the Black Belt) together. See supra, at 4, n. 2. When the plaintiffs’ expert was asked at the hearing whether a race-blind computer program could  produce maps with two majority-Black districts, she replied that it “certainly” could. App. 349. 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).

 The question whether to accept Alabama’s position demands serious and sustained consideration—the kind of consideration impossible to give “on a short fuse without benefit of full briefing and oral argument.” Does v. Mills, 595 U. S. ___, ___ (2021) (slip op., at 1) (Barrett, J., concurring in denial of application for injunctive relief ). 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) (showing that one way of implementing Alabama’s approach would yield, across the country, “substantially fewer districts where minority voters are able to elect their preferred candidates”). Substantial questions merit substantial thought. 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. See ante, at 1 (Roberts, C. J., dissenting) (“[T]he District Court properly applied existing law in an extensive opinion with no apparent errors for our correction”). 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. The State’s legislature enacted its current plan in less than a week. See App.  202. And the legislature has all the tools necessary to draw another, including “access to an experienced cartographer” and “not just one or two, but at least eleven illustrative remedial plans” complying with the District Court’s injunction. Id., at 214. For that matter, nothing about the court’s injunction could have come as a surprise. The State has been on notice “since at least 2018” that these or similar plaintiffs (after receiving new census data) “would likely assert a Section Two challenge to any 2021 congressional redistricting plan that did not include two majority-Black districts or districts in which Black voters otherwise have an opportunity to elect a representative of their choice.” Id., at 202. And indeed, the legislature in this current election cycle considered at least one alternative map containing two majority-Black districts. Ibid.; see Joint Stipulated Facts in No. 2:21–cv–1530 (ND Ala.), ECF Doc. 53, p. 22, ¶¶113–114. Simply put, Alabama has known for quite some time that the VRA may require it to draw a different map; it has all it needs to do so; and it has shown just how quickly it can act when it wants to.

 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). Alabama contends that the District Court’s order comes too late because changing the map now may confuse voters who are moved to new precincts, and may hurt “non-major-party candidates” who “have to scramble to obtain” new signatures. Application 39. But the District Court was right to say that “this case is not like Purcell because we are not ‘just weeks before an election.’ ” App. 261 (quoting Purcell, 549 U. S., at 4). The general election is around nine months away; the primary date is in late May, about four months from now. See App. 261. Even the first day of absentee primary voting (which Alabama has leeway to modify) is March 30, more than two months after  the court issued its order. See ibid. 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). I see no reason to do otherwise here. The plaintiffs “commenced their lawsuits within hours or days of the enactment” of Alabama’s plan in November 2021. App. 203. And the District Court immediately expedited its proceedings; indeed, consistent with everything else the court did right, it moved with astonishing speed. The only delay (of a few weeks) came “at the request” of the State. Ibid. Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year.

*  *  *

 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. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change. That decision does a disservice to our own appellate processes, which serve both to constrain and to  legitimate the Court’s authority. It does a disservice to the District Court, which meticulously applied this Court’s longstanding voting-rights precedent. And most of all, it does a disservice to Black Alabamians who under that precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.