Page:Allen v. Milligan.pdf/101

Rh (Shaw II); Miller v. Johnson, 515 U. S. 900, 920 (1995).

Because non-predominance is a longstanding and vital feature of districting law, it must be honored in a Gingles plaintiff’s illustrative district. If race predominated in the creation of such a district, the plaintiff has failed to satisfy both our precedent, which requires “reasonably configured” districts, and the terms of §2, which demand equal openness. Two Terms ago, we engaged in a close analysis of the text of §2 and explained that its “key requirement” is that the political processes leading to nomination or election must be “ ‘equally open to participation’ by members of a protected class.” Brnovich v. Democratic National Committee, 594 U. S. ___, ___ (2021) (slip op., at 6, 15) (quoting 52 U. S. C. §10301(b); emphasis deleted). “[E]qual openness,” we stressed, must be our “touchstone” in interpreting and applying that provision. 594 U. S., at ___ (slip op., at 15).

When the race of one group is the predominant factor in the creation of a district, that district goes beyond making the electoral process equally open to the members of the group in question. It gives the members of that group an advantage that §2 does not require and that the Constitution may forbid. And because the creation of majority-minority districts is something of a zero-sum endeavor, giving an advantage to one minority group may disadvantage others.

What all this means is that a §2 plaintiff who claims that a districting map violates §2 because it fails to include an additional majority-minority district must show at the outset that such a district can be created without making race the predominant factor in its creation. The plaintiff bears both the burden of production and the burden of persuasion