Merrill v. Milligan ( 2022 )

Cite as: 595 U. S. ____ (2022) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21A375 (21–1086) and 21A376 (21–1087)
_________________
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
[February 7, 2022]
The application for a stay or injunctive relief presented to
JUSTICE THOMAS and by him referred to the Court in
No. 21A375 is treated as a jurisdictional statement, and
probable jurisdiction is noted. The application for a stay or
injunctive relief presented to JUSTICE THOMAS and by him
referred to the Court in No. 21A376 is treated as a petition
for a writ of certiorari before judgment. Respondents in
No. 21A376 do not oppose treating the application as a pe-
tition for a writ of certiorari before judgment and do not op-
pose granting the petition (although they do oppose grant-
ing a stay). With that fact taken into account, the petition
is granted. The district court’s January 24, 2022 prelimi-
nary injunctions in No. 2:21–cv–1530 and No. 2:21–cv–1536
are stayed pending further order of the Court.
JUSTICE KAVANAUGH, with whom JUSTICE ALITO joins,
concurring in grant of applications for stays.
I concur in the Court’s stay of the District Court’s injunc-
tion. I write separately to explain my vote, and to briefly
2 MERRILL v. MILLIGAN
KAVANAUGH, J., concurring
respond to the principal dissent. Post, p. ___ (opinion of
KAGAN, J.).
To begin with, the principal dissent is wrong to claim that
the Court’s stay order makes any new law regarding the
Voting Rights Act. The stay order does not make or signal
any change to voting rights law. The stay order is not a
ruling on the merits, but instead simply stays the District
Court’s injunction pending a ruling on the merits. The stay
order follows this Court’s election-law precedents, which es-
tablish (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 princi-
ple. 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 stay
will allow this Court to decide the merits in an orderly fash-
ion—after full briefing, oral argument, and our usual exten-
sive internal deliberations—and ensure that we do not have
to decide the merits on the emergency docket. To reiterate:
The Court’s stay order is not a decision on the merits.
As background: This stay application arises from a dis-
pute over Alabama’s congressional election districts. The
State recently adopted a districting plan that, according to
the State, employs the same basic districting framework
that the State has maintained for several decades. But two
weeks ago, a three-judge District Court concluded that Al-
abama’s congressional districting plan likely violates fed-
eral voting rights law. The District Court ordered that Al-
abama’s congressional districts be completely redrawn
within a few short weeks. The District Court declined to
stay the injunction for the 2022 elections even though the
primary elections begin (via absentee voting) just seven
weeks from now, on March 30.
The State has appealed, contending that the District
Cite as: 595 U. S. ____ (2022) 3
KAVANAUGH, J., concurring
Court was wrong on the merits. And given that the primary
elections begin next month, the State has also sought an
emergency stay of the District Court’s injunction with re-
spect to the 2022 elections.
With respect to the request for a stay of the District
Court’s injunction for the 2022 elections, the State argues
that the District Court’s injunction is a prescription for
chaos for candidates, campaign organizations, independent
groups, political parties, and voters, among others. The
State says that those individuals and entities now do not
know who will be running against whom in the primaries
next month. Filing deadlines need to be met, but candi-
dates cannot be sure what district they need to file for. In-
deed, at this point, some potential candidates do not even
know which district they live in. Nor do incumbents know
if they now might be running against other incumbents in
the upcoming primaries.
On top of that, state and local election officials need sub-
stantial time to plan for elections. Running elections state-
wide is extraordinarily complicated and difficult. Those
elections require enormous advance preparations by state
and local officials, and pose significant logistical challenges.
The District Court’s order would require heroic efforts by
those state and local authorities in the next few weeks—
and even heroic efforts likely would not be enough to avoid
chaos and confusion.
For those and other reasons, the State says that any ju-
dicial order requiring the State to redraw its congressional
district lines should not apply to the imminent 2022 elec-
tions that begin next month.
Under our precedents, a party asking this Court for a stay
of a lower court’s judgment pending appeal or certiorari or-
dinarily 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
4 MERRILL v. MILLIGAN
KAVANAUGH, J., concurring
would likely suffer irreparable harm absent the stay. Hol-
lingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).
In deciding whether to grant a stay pending appeal or cer-
tiorari, the Court also considers the equities (including the
likely harm to both parties) and the public interest. Ibid.As the Court has often indicated, however, that tradi-
tional test for a stay does not apply (at least not in the same
way) in election cases when a lower court has issued an in-
junction of a state’s election law in the period close to an
election. See Purcell, 549 U. S. 1. This Court has repeat-
edly stated that federal courts ordinarily should not enjoin
a state’s election laws in the period close to an election, and
this Court in turn has often stayed lower federal court in-
junctions that contravened that principle. See ibid.; see
also Merrill v. People First of Ala., 592 U. S. ___ (2020); An-
dino v. Middleton, 592 U. S. ___ (2020); Merrill v. People
First of Ala., 591 U. S. ___ (2020); Clarno v. People Not Pol-
iticians, 591 U. S. ___ (2020); Little v. Reclaim Idaho, 591
U. S. ___ (2020); Republican National Committee v. Demo-
cratic National Committee, 589 U. S. ___ (2020) (per cu-
riam); Democratic National Committee v. Wisconsin State
Legislature, 592 U. S. ___ (2020) (declining to vacate stay).
That principle—known as the Purcell principle—reflects
a bedrock tenet of election law: When an election is close at
hand, the rules of the road must be clear and settled. Late
judicial tinkering with election laws can lead to disruption
and to unanticipated and unfair consequences for candi-
dates, political parties, and voters, among others. 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. 1
——————
1 How close to an election is too close may depend in part on the nature
of the election law at issue, and how easily the State could make the
change without undue collateral effects. Changes that require complex
or disruptive implementation must be ordered earlier than changes that
Cite as: 595 U. S. ____ (2022) 5
KAVANAUGH, J., concurring
Some of this Court’s opinions, including Purcell itself,
could be read to imply that the principle is absolute and
that a district court may never enjoin a State’s election laws
in the period close to an election. As I see it, however, the
Purcell principle is probably best understood as a sensible
refinement of ordinary stay principles for the election con-
text—a principle that is not absolute but instead simply
heightens the showing necessary for a plaintiff to overcome
the State’s extraordinarily strong interest in avoiding late,
judicially imposed changes to its election laws and proce-
dures. Although the Court has not yet had occasion to fully
spell out all of its contours, I would think that the Purcell
principle thus might be overcome even with respect to an
injunction issued close to an election if a plaintiff estab-
lishes at least the following: (i) the underlying merits are
entirely clearcut in favor of the plaintiff; (ii) the plaintiff
would suffer irreparable harm absent the injunction;
(iii) the plaintiff has not unduly delayed bringing the com-
plaint to court; and (iv) the changes in question are at least
feasible before the election without significant cost, confu-
sion, or hardship. Cf. Lucas v. Townsend, 486 U. S. 1301(1988) (Kennedy, J., in chambers); McCarthy v. Briscoe, 429
U. S. 1317 (1976) (Powell, J., in chambers).
Here, however, even such a relaxed version of the Purcell
principle would not permit the District Court’s late-break-
ing injunction. That is because the plaintiffs could not sat-
isfy at least two of those four prerequisites—namely, that
the merits be clearcut in favor of the plaintiff, and that the
changes be feasible without significant cost, confusion, or
hardship.
As to the merits, the underlying question here is whether
a second majority-minority congressional district (out of
seven total districts in Alabama) is required by the Voting
Rights Act and not prohibited by the Equal Protection
——————
are easy to implement.
6 MERRILL v. MILLIGAN
KAVANAUGH, J., concurring
Clause. But the Court’s case law in this area is notoriously
unclear and confusing. As THE CHIEF JUSTICE rightly
notes, there is “considerable disagreement and uncertainty
regarding the nature and contours of a vote dilution claim.”
Post, at 2 (dissenting opinion). Indeed, an amicus brief filed
by 14 States says (with some justification) that this Court
and the lower federal courts “have been less than clear”
about the rules that govern majority-minority districts, and
bluntly adds that “States need clarity.” Brief for State of
Louisiana et al. as Amici Curiae 3, 25.
At this preliminary juncture, the underlying merits ap-
pear to be close and, at a minimum, not clearcut in favor of
the plaintiffs. 2 And in any event, the plaintiffs have not
established that the changes are feasible without signifi-
cant cost, confusion, or hardship. Therefore, the plaintiffs
cannot overcome even a more relaxed version of the Purcell
principle.
In short, the Purcell principle requires that we stay the
District Court’s injunction with respect to the 2022 elec-
tions. The Court has recognized that “practical considera-
tions sometimes require courts to allow elections to proceed
despite pending legal challenges.” Riley v. Kennedy, 553
U. S. 406, 426 (2008). So it is here. If the District Court’s
judgment is eventually affirmed after appellate review, the
injunction can take effect for congressional elections that
occur after 2022. 3
The principal dissent disagrees and emphasizes the thor-
——————
2 Even under the ordinary stay standard outside the election context,
the State has at least a fair prospect of success on appeal—as do the
plaintiffs, for that matter.
3 Correcting an erroneous lower court injunction of a state election law
does not itself constitute a Purcell problem. Otherwise, appellate courts
could never correct a late-breaking lower court injunction of a state elec-
tion law. That would be absurd and is not the law. See, e.g., Andino v.
Middleton, 592 U. S. ___ (2020); Republican National Committee v. Dem-
ocratic National Committee, 589 U. S. ___ (2020) (per curiam).
Cite as: 595 U. S. ____ (2022) 7
KAVANAUGH, J., concurring
oughness of the District Court’s opinion. But if careful Dis-
trict Court consideration sufficed for an appellate court to
deny a stay, then appellate courts could usually end the
stay inquiry right there. That is not how stay analysis
works. Contrary to the dissent’s implication, the fact that
the District Court here issued a lengthy opinion after con-
sidering a substantial record is the starting point, not the
ending point, for our analysis of whether to grant a stay.
To sum up: In light of this Court’s many precedents ap-
plying the Purcell principle and staying lower court injunc-
tions of state election laws in the period close to an election,
I concur in the Court’s order granting a stay of the District
Court’s injunction here. Contrary to the dissent’s mistaken
rhetoric, I take no position at this time on the ultimate mer-
its of the parties’ underlying legal dispute. And I need not
do so until the Court receives full briefing, holds oral argu-
ment, and engages in our usual extensive internal deliber-
ations. The words used by the Court in Purcell apply
equally to this case: “We underscore that we express no
opinion here on the correct disposition, after full briefing
and argument, of the appeals from the District Court’s . . .
order or on the ultimate resolution of these cases.” 549
U. S., at 5. “Given the imminence of the election and the
inadequate time to resolve the factual disputes, our action
today shall of necessity allow the election to proceed with-
out an injunction.” Id., at 5–6.
Cite as: 595 U. S. ____ (2022) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21A375 (21–1086) and 21A376 (21–1087)
_________________
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
[February 7, 2022]
CHIEF JUSTICE ROBERTS, dissenting from grant of appli-
cations for stays.
I respectfully dissent from the stays granted in these
cases because, in my view, the District Court properly ap-
plied 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 Dis-
trict Court reviewed the submissions of the plaintiffs’ ex-
perts 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 ap-
plication of Gingles, it is fair to say that Gingles and its
2 MERRILL v. MILLIGAN
ROBERTS, C. J., dissenting
progeny have engendered considerable disagreement and
uncertainty regarding the nature and contours of a vote di-
lution claim. See Gingles, 478 U. S., at 97 (O’Connor, J.,
concurring in judgment) (characterizing the Court’s ap-
proach at the outset as “inconsistent with . . . §2’s dis-
claimer of a right to proportional representation”); Johnson
v. De Grandy, 512 U. S. 997, 1028 (1994) (Kennedy, J., con-
curring in part and concurring in judgment) (warning that
“placing undue emphasis upon proportionality risks defeat-
ing 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 Elec-
tions, 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 Milli-
gan 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.
Cite as: 595 U. S. ____ (2022) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21A375 (21–1086) and 21A376 (21–1087)
_________________
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
[February 7, 2022]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting from grant of applica-
tions 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 di-
luted the votes of the State’s Black population, and ordered
the State to devise a new plan for the 2022 elections. Ala-
bama now seeks a stay of that ruling. Usually, when a liti-
gant 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
2 MERRILL v. MILLIGAN
KAGAN, J., dissenting
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 ex-
isting 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 Sec-
tion 2 and the right it provides.” Brnovich v. Democratic
National Committee, 594 U. S. ___, ___ (2021) (KAGAN, J.,
dissenting) (slip op., at 2). 1
——————
1 Because JUSTICE KAVANAUGH claims that the Court’s stay has nothing
to do with the merits of Alabama’s application and that the Court may
therefore appropriately use its emergency docket to grant the State re-
lief, see ante, at 2 (concurring opinion), I note a few uncontroversial prin-
ciples about stays pending appeal.
A stay pending appeal is an “extraordinary” remedy. Williams v.
Zbaraz, 442 U. S. 1309, 1311 (1979) (Stevens, J., in chambers); see also
Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1316 (1983) (Blackmun, J.,
in chambers). The applicant (here, the State) bears the “especially
heavy” burden of proving that such relief is warranted. Packwood v. Sen-
ate Select Committee on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist,
C. J., in chambers). Our stay standard asks (1) whether the applicant is
likely to succeed on the merits, and (2) whether the likelihood of irrepa-
rable harm to the applicant, the balance of equities, and the public inter-
est weigh in favor of granting a stay. See Nken v. Holder, 556 U. S. 418,
426 (2009). The inquiry thus has both a merits component and an equi-
table component.
That is true in election cases generally. As JUSTICE KAVANAUGH notes,
there is an exception: The Court has sometimes given less attention to
the merits in cases involving eleventh-hour election changes. See Purcell
v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). But for the reasons
given in Part III, that exception does not apply here, given that the Dis-
trict Court ruled months before anyone in the State will cast a vote. See
infra, at 10–12.
And so we return to the ordinary standard for a stay pending appeal.
Because our discretionary power over election appeals is limited, I agree
that the Court will need to hear Alabama’s appeal on our ordinary
Cite as: 595 U. S. ____ (2022) 3
KAGAN, J., dissenting
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 candi-
date 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 popula-
tion 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 ge-
ographically 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 sin-
gle district, and “crack[ed]” the remainder over three oth-
ers. Id., at 36–41. That action, the plaintiffs contended,
diluted their voting power.
The Court’s longstanding precedent imposes strict re-
quirements 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 . . .
——————
docket. The question this stay application presents is what to do in the
interim. Should we freeze the District Court’s decision and thereby ena-
ble Alabama to proceed with the violation of voting rights found by that
court? Or should we leave the District Court’s decision in place, thus
allowing a remedy to the adjudicated violation of rights to go into effect?
For the reasons that follow, the latter course is the only appropriate one.
4 MERRILL v. MILLIGAN
KAGAN, J., dissenting
usually to defeat the minority’s preferred candidate.”
Growe v. Emison, 507 U. S. 25, 40 (1993) (quoting Thorn-
burg 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 circum-
stances 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 minor-
ity 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 Ala-
bama’s stay application—by showing that another “reason-
ably compact” majority-minority district can be drawn, con-
sistent 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 in-
clude—in addition to compactness—contiguity, respect for
existing political subdivisions, and the desire to keep to-
gether 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 prelimi-
nary injunction hearing with live testimony from 17 wit-
nesses, 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
——————
2 Alabama’s redistricting guidelines define a “community of interest”
as “an area with recognized similarities of interests, including but not
limited to ethnic, racial, economic, tribal, social, geographic, or historical
identities.” App. 46.
Cite as: 595 U. S. ____ (2022) 5
KAGAN, J., dissenting
Court found that the plaintiffs’ 11 illustrative plans (each
with a second majority-Black district) complied with tradi-
tional districting criteria as well as or better than Ala-
bama’s enacted plan. As the court explained, the plaintiffs’
proposed plans “have nearly zero population deviation, in-
clude 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 com-
munities of interest, [and] protect incumbents where possi-
ble.” 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 inconsisten-
cies 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 gen-
erally 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 con-
figured majority-Black districts.” App. 160–161.
Figure 1. Black Voting-Age Population Share
6 MERRILL v. MILLIGAN
KAGAN, J., dissenting
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 ‘po-
litically 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 Al-
abama had included “obvious and overt appeals to race.”
Id., at 190. (To take just two, Congressman Mo Brooks “re-
peatedly 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 in-
tended.’ ” Id., at 189–190.) After all this, the court consid-
ered whether, under Alabama’s plan, “the number of dis-
tricts in which the minority group forms an effective
majority is roughly proportional to its share of the popula-
tion.” LULAC, 548 U. S., at 426. The court found it was
not, noting that Black Alabamians are 27% of the popula-
tion but have meaningful influence over just 14% of con-
gressional 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 dis-
trict.” Id., at 194–195.
In light of that “extremely robust body of evidence,” the
District Court held that the record “compels” the conclusion
Cite as: 595 U. S. ____ (2022) 7
KAGAN, J., dissenting
that Alabama’s redistricting plan “substantially likely vio-
lates 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 exam-
ple, that its enacted plan performs better than the plain-
tiffs’ proposed plans when measured against traditional
districting criteria like compactness. Rather, Alabama ar-
gues 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.” Application in No. 21A375, p. 19 (Application). The
State would essentially require the plaintiffs to demon-
strate 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 ini-
tial step in a much larger analysis) asks a question specifi-
cally about race: Is a minority group “sufficiently large and
geographically compact to constitute a majority” in an ad-
ditional district, consistent with traditional districting cri-
teria? 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—
8 MERRILL v. MILLIGAN
KAGAN, J., dissenting
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 im-
possible. In Alabama’s view, though, the advent of comput-
erized 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 ba-
sis for arguing that this case would come out differently un-
der its race-blind computer-simulation approach. Ala-
bama’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 ex-
pert’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 anal-
ysis 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 Ala-
bama’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
Cite as: 595 U. S. ____ (2022) 9
KAGAN, J., dissenting
produce maps with two majority-Black districts, she replied
that it “certainly” could. App. 349. So Alabama’s applica-
tion 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 Gin-
gles).
The question whether to accept Alabama’s position de-
mands 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., con-
curring in denial of application for injunctive relief ). Ala-
bama’s challenge to the District Court’s decision cannot suc-
ceed 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 Fu-
ture 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 can-
didates”). Substantial questions merit substantial thought.
Here, the District Court carefully and correctly applied the
now-existing law and concluded that Alabama has unlaw-
fully 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 can-
not—contend that redrawing its map in advance of this
year’s elections would be impossible. The State’s legisla-
ture enacted its current plan in less than a week. See App.
10 MERRILL v. MILLIGAN
KAGAN, J., dissenting
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 re-
medial plans” complying with the District Court’s injunc-
tion. 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 as-
sert a Section Two challenge to any 2021 congressional re-
districting plan that did not include two majority-Black dis-
tricts 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 cy-
cle 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 elec-
tion 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
Cite as: 595 U. S. ____ (2022) 11
KAGAN, J., dissenting
the court issued its order. See ibid. This Court has previ-
ously 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. Al-
corn, 155 F. Supp. 3d 552 (ED Va.) (imposing a new reme-
dial map in January of an election year, despite mid-June
primary), stay denied, 577 U. S. 1125 (2016). I see no rea-
son to do otherwise here. The plaintiffs “commenced their
lawsuits within hours or days of the enactment” of Ala-
bama’s plan in November 2021. App. 203. And the District
Court immediately expedited its proceedings; indeed, con-
sistent 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 ap-
plied established legal principles to an extensive eviden-
tiary record. Its reasoning was careful—indeed, exhaus-
tive—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
12 MERRILL v. MILLIGAN
KAGAN, J., dissenting
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 prec-
edent have had their electoral power diminished—in viola-
tion of a law this Court once knew to buttress all of Ameri-
can democracy.