Cite as: 595 U. S. ____ (20 22 ) 1

K

AVANAUGH , 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

.
O N APPLICATIONS FOR STA YS OR INJUNCTIVE REL IEF
[ February 7, 2022 ]
The application for a stay or injunctive relief presented to J USTICE T HOMAS and by him referred to the Court in No. 2 1A375 is treated as a jurisdictional statement, and probable jurisdiction is noted. The application for a stay or injunctive relief presented to J USTICE T HOMAS and by him referred to the Court in No. 21A376 is treated as a petition for a writ of certiorar i before judgment. Respondents inNo. 21A376 do not oppose treating the application as a petition for a writ of certiorari before judgment and do not oppose granting the petition (although they do oppose granting a stay ) . With that fact taken into account , the petitionis granted. The district court’s January 24, 2022 preliminary inj unctions in No. 2:21

– cv

– 1530 and No. 2:21

– cv

– 1536 are stayed pending further order of the Court.
J USTICE K AVANAUGH , with whom J USTICE A LITO joins, concurring in grant of applications for stays.I concur in the Court’s stay of the District Court’s injunction. I write separately to explain my vote, and to briefly2 MERRILL v. MILLIGAN

K

AVANAUGH , J. , concurring
respond to the principal dissent. Post, p. ___ (opinion of K

AGAN , 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 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 cour ts should stay injunctionswhen, 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 tar get. The staywill allow this Court to decide the merits in an orderly fashion— after full briefing, oral argument, and our usual extensive internal deliberations

— and ensure that we do not have to decide the merits on the emergency docket. To reiterate: T he Court’s stay order is not a decision on the merits.As background: This stay application arises from a dispute over Alabama’s congressional election districts. T he State recently adopted a districting plan that, according to the State, employs the sam e basic districting framework that the State has maintained for seve ral decades. But two weeks ago, a three

- judge District Court concluded that Alabama’s congressional districting plan likely violates federal voting rights law. The District Court ordered that Alabama’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 M arch 30. The State has appealed, contending that the DistrictCite as: 595 U. S. ____ (2022) 3

K

AVANAUGH , J. , concurring
Court was wrong on the merits. And given that the primary elections begin next month, the State has also sought anemergency stay of the District Court’s injunction with respect to the 2022 el ections. 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 primariesnext month. Filing deadlines need to be met, but candidates cannot be sure what district they need to file for. Indeed, 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 substantial 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 challen ges. 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 judicial order requiring the State to redraw its congressionaldistrict lines should not apply to the imminent 2022 elections that begin next month. Under our precedents, a party asking this Court for a stayof 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 applicant4 MERRILL v. MILLIGAN

K

AVANAUGH , J. , concurring would likely suffer irreparable harm absent the stay. Hollingsworth v. Perry , 558 U. S. 183, 190 (2010) ( per curiam )

.In deciding whether to grant a stay pending appeal or certiorari, the Court also considers the equities (including the likely harm to both parties) and the public interest. Ibid. As the Court has often indi cated, however, that traditional test for a stay does not apply (at least not in the sameway) 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. This Court has repeatedly stated that federal courts ordinarily should not enjoin a state’s election laws in the period close to an election, andthis Court in turn has often stayed lower federal court injunctions that contravened that prin ciple. See ibid. ; see also Merrill v. People First of Ala. , 592 U. S. ___ (2020); Andino v. Middleton , 592 U. S. ___ (2020); Merrill v. People First of Ala. , 591 U. S. ___ (2020); Clarno v. People Not Politicians , 591 U. S. ___ (2020); Little v. Reclaim I daho , 591 U. S. ___ (2020); Republican Nat ional Comm ittee v. Democratic Nat ional Comm ittee , 589 U. S. ___ (2020) (per curiam ); Democratic Nat ional Comm ittee v. Wis consin State Legislature , 592 U. S. ___ (2020) ( declining to vacate stay ). That principle

— kn own 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 co nsequences for candidates, 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 e lection 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 ef fects. Changes that require complex or disruptive implementation must be ordered earlier than changes thatCite as: 595 U. S. ____ (2022) 5

K

AVANAUGH , 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 sensiblerefinement of ordinary stay principles for the election context

— a principle that is not absolute but i nstead 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 procedures. Although the Court has not yet had occasion to fully

sp ell out all of its contours, I would think that the Purcell principle thus might be overcome even with respect to aninjunction issued close to an election if a plaintiff establishes 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 complaint to court; and (iv) the changes in question are at least feasible before the election witho ut significant cost, confusion, 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 principl e would not permit the District Court’s late

- breaking injunction. That is because the plaintiffs could not satisfy at least two of those four prerequisites

— namely, that the merits be clearcut in favor of the plaintiff, and that the changes be feasible wit hout 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

K

AVANAUGH , J. , concurring
Clause. But the Court’s case law in this area is notoriously unclear and confusing. As T HE C HIEF J USTICE 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 appear to be close and, at a minimum, not clearcut in favor of the plaintiffs. 2 And in any event, the plaintiffs have notestablished that the changes are feasible without significant 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 theDistrict Court’s injunction with respect to the 2022 elections. The Court has recognized that “practical considerations 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 ap peal

— as do the plaintiffs, for that matter.

3 Correcting an erroneous lower court injunct ion 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 election law

. That would be absurd and is not the law. S ee, e.g., Andino v. Middleton

, 592 U. S. ___ (2020) ; Republican National Committee v. Democratic National Committee , 589 U. S.

___ (2020) ( per curiam ).Cite as: 595 U. S. ____ (2022) 7

K

AVANAUGH , J. , concurring oughness of the Di strict Court’s opinion. But if careful District 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 impl ication, the fact thatthe District Court here issued a lengthy opinion after considering 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 applying the Purcell principle and staying lower court injunctions 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 merits of the parties’ underlying legal dispute. And I need notdo so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations. 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 cas es.” 549 U. S., at 5. “Given the imminence of the election and the inadequate time to resolve the factual disputes, our actiontoday shall of necessity allow the election to proceed without an injunction.” Id., at 5– 6.Cite as: 595 U. S. ____ (20 22 ) 1

R OBERTS , 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

.
O N APPLICATIONS FOR STA YS OR INJUNCTIVE REL IEF
[ February 7, 2022 ]

C HIEF J USTICE R OBERTS , dissenting from grant of applications for stays. I respectfully dissent from the stays grante d in thesecases 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 fort h 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 ( K AGAN , J., dissenting). But while the District Court cannot be faulted for its application of Gingles , it is fair to say that Gingles and its2 MERRILL v. MILLIGAN

R OBERTS , C. J. , dissenting
progeny have engendered considerable disagreement anduncertainty regarding the nature and contours of a vote dilution claim. See Gingles , 478 U. S., at 97 ( O’Conno r , 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 ellipt ical” 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 S ense 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 acco rd 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. ____ (20 22 ) 1

K

AGAN , 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

.
O N APPLICATIONS FOR STA YS OR INJUNCTIVE REL IEF
[ February 7, 2022 ]

J USTICE K AGAN , with whom J USTICE B REYER and J USTICE S OTOMAYOR 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 twojudges from the State) found that the plan unlawfully diluted the votes of the State’s Black population, and orderedthe State to devise a new plan for the 2022 elections. Alabama now seeks a stay of that ruling. Usually, when a lit igant 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 goes2 MERRILL v. MILLIGAN

K

AGAN , 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. TheDistrict 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. Withrespect, I again dissent from a ruling that “undermines Section 2 and the right it provides.” Brnovich v. Democratic National Committee , 594 U. S. ___, ___ (2021) (K AGAN , J., dissenting) (slip op., at 2). 1

——————

1 Because J USTICE K AVANAUGH claims that the Court’s stay has nothing to do with the merits of Alabama’s application and that the Court maytherefore appropriately use its emergency docket to grant the State relief, se e ante, at 2 (concurring opinion), I note a few uncontroversial principles 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. Senate Select Comm ittee on Ethics , 510 U. S. 1319, 1320 (199 4) (Rehnquist, C. J., in chambers). Our stay standard asks (1) whether the applicant islikely to succeed on the merits, and (2) whether the likelihood of irreparable harm to the applicant, the balance of equities, and the public interest weigh in favor o f granting a stay. See Nken v. Holder , 556 U. S. 418,426 (2009). The inquiry thus has both a merits component and an equitable component.

That is true in election cases generally. As J USTICE K AVANAUGH 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 reasonsgiven in Part III, that exception does not apply here, given that the District Co urt 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 ordinaryCite as: 595 U. S. ____ (2022) 3

K

AGAN , 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 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 Blackpopulation 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 geogr aphically 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 pr oving 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 theinterim. Should we freeze the District Court’s decision and thereby enable 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

K

AGAN , J. , dissenting 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 th e 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 whichvoting 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. U nder 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, co nsistent 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 compactn ess

— contiguity, respect forexisting 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, plaint iffs typically submit one or more illustrative, alternative maps complying with traditional districting criteria while also adding a majority

- minority district. T he plaintiffs here did just that

. In a seven- day preliminary injunction hearing with live te stimony 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

——————

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

K

AGAN , J. , dissenting

C ourt found that the plaintiffs’ 11 illustrative plans (ea ch 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 contiguo us districts, include districts that are at least as geographically compact as those in [Alabama’s] Plan, respect traditional boundaries and subdivisions atleast as much as [Alabama’s] Plan, protect important communities of interest, [and] protect incu mbe nts where possible.” App. 173. Alabama’s efforts to rebut the plaintiffs’ showing hinged on an expert to whom the District C ourt gave “very little weight

. ” Id.

, at 152. The court explained that his t estimony was riddled with “internal inconsistencie s 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 concedethat, as to compactness, the plaintiffs’ plans “perform generally better on average ” than the enacted s tate 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) sho ws 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. Bl ack Voting

- Age Population Share6 MERRILL v. MILLIGAN

K

AGAN , 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 “thereis no serious dispute that Black voters [in Alabama] are ‘politically cohesive,’ nor that the challeng ed 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 effectivemajority is roughly proportional to its share of the population.” LULAC , 548 U. S., at 426. The court found it wasnot, 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 C ourt held that the record “compels” t he conclusionCite as: 595 U. S. ____ (2022) 7

K

AGAN , J. , dissenting

that Alabama’s redistricting plan “substantially likely violates Section Two .” Id.

, at 196, 236

. Indeed, the District C ourt did “ not regard the question” whether the plaintiffs were “substantially likely to prevail on the merits of their Se ction 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 thefindings outlined above. Alabama does not argue, for example, that its enacted plan performs better than the plaintiffs’ proposed plans when measured against traditionaldistricting 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). TheState 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 initi al 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 a n 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 configu red 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

K

AGAN , J. , dissenting their claim fails at an early stage of the litigation. See S trickland , 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 Alaba ma’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, th is 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 Alab ama 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. Butas 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’sBlack population. And it did not account for several of Alabama’s tr aditional 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 couldCite as: 595 U. S. ____ (2022) 9

K

AGAN , J. , dissenting
produce maps with two majori ty

- 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 a dopted (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) ( B ARRETT , J., co ncurring 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 Right s , 130 Yale L. J. 862 (2021) (showing that one way of implementing Alabama’s approach would yield, across the country, “substantially fewer districtswhere 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 ( R OBERTS , C. J., dissenting) (“[T] he District Court properl y applied existing law in an extensive opinion with

no appar ent 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 redraw ing 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.10 MERRILL v. MILLIGAN

K

AGAN , J. , dissenting
202. And the legislature has all the tools necessar y 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 injunc tion could have come as a surprise. The State has been on notice “since at least 2018” that these or similarplaintiffs (after receiving new census data) “would likely assert a Section Two challenge to any 2021 congressional redistricting plan that did no t 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

a ll 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 afterCite as: 595 U. S. ____ (2022) 11

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AGAN , J. , dissenting

the court issued its order. See ibid. This Court has previously de nied stays of districting orders issued at similar times. See

, e.g. , Harris v. McCrory , 159 F. Supp. 3d 600 (MD NC ) (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 la wsuits within hours or days of the enactment” of Alabama’s plan in November 2021. App. 203. And the DistrictCourt immediately expedited its proceedings; indeed, consistent with everything else the court did right, it moved with astonishing speed. The o nly 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 approachingfull 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 d isservice to our own appellate processes, which serve both to constrain and to12 MERRILL v. MILLIGAN

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AGAN , 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, itdoes 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.