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 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 petition 

is granted. The district court’s January 24, 2022 preliminary 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 injunction. 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 establish (i) that federal district courts ordinarily should not 

enjoin state election laws in the period close to an election, 

and (ii) that federal appellate courts should stay injunctions 

when, as here, lower federal courts contravene that principle. See, e.g., Purcell v. Gonzalez, 549 U. S. 1 (2006) (per 

curiam). 

The principal dissent’s catchy but worn-out rhetoric 

about the “shadow docket” is similarly off target. The stay 

will 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: 

The 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. 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 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 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 respect 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 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 statewide 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 judicial order requiring the State to redraw its congressional 

district lines should not apply to the imminent 2022 elections 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 ordinarily must show (i) a reasonable probability that this 

Court would eventually grant review and a fair prospect 

that the Court would reverse, and (ii) that the applicant 
4 MERRILL v. MILLIGAN

KAVANAUGH, 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 indicated, however, that traditional test for a stay does not apply (at least not in the same 

way) in election cases when a lower court has issued an injunction of a state’s election law in the period close to an 

election. See Purcell, 549 U. S. 1. This Court has repeatedly 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 injunctions that contravened that principle. 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 Idaho, 591 

U. S. ___ (2020); Republican National Committee v. Democratic National Committee, 589 U. S. ___ (2020) (per curiam); 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 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 election laws 

in the period close to an election.1

—————— 1How 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 context—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 procedures. 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 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 without 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

principle 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 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 appear 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 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 the

District 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-

—————— 2Even 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. 3Correcting 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 election law. That would be absurd and is not the law. See, 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 

KAVANAUGH, J., concurring

oughness of the District 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 implication, the fact that 

the 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 not 

do 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 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 without 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 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 
2 MERRILL v. MILLIGAN

ROBERTS, C. J., dissenting

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.
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 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
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 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

—————— 1Because 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 relief, see 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 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 irreparable harm to the applicant, the balance of equities, and the public interest 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 equitable 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 District 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 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 . . . 

—————— 

docket. The question this stay application presents is what to do in the 

interim. 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

KAGAN, 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 

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 

—————— 2Alabama’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 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
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 ‘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-ofcircumstances 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 votingrights 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 nonHispanic 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 
Cite as: 595 U. S. ____ (2022) 7 

KAGAN, J., dissenting

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—
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 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 
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 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. 
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 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 
Cite as: 595 U. S. ____ (2022) 11

KAGAN, J., dissenting

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 
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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 precedent have had their electoral power diminished—in violation of a law this Court once knew to buttress all of American democracy.