Page:Allen v. Milligan.pdf/104

8 of its opinion with this revealing statement: "“Dr. Duchin and Mr. Cooper [plaintiffs’ experts] testified that they prioritized race only for the purpose of determining and to the extent necessary to determine whether it was possible for the Milligan plaintiffs and the Caster plaintiffs to state a Section Two claim. As soon as they determined the answer to that question, they assigned greater weight to other traditional redistricting criteria.” Id., at 1029–1030 (emphasis added)."

This statement overlooks the obvious point that by “prioritiz[ing] race” at the outset, Dr. Duchin and Mr. Cooper gave race a predominant role.

The next step in the District Court’s analysis was even more troubling. The court wrote, “Dr. Duchin’s testimony that she considered two majority-Black districts as ‘nonnegotiable’ does not” show that race played a predominant role in her districting process. Id., at 1030. But if achieving a certain objective is “non-negotiable,” then achieving that objective will necessarily play a predominant role. Suppose that a couple are relocating to the Washington, D. C., metropolitan area, and suppose that one says to the other, “I’m flexible about where we live, but it has to be in Maryland. That’s non-negotiable.” Could anyone say that finding a home in Maryland was not a “predominant” factor in the couple’s search? Or suppose that a person looking for a flight tells a travel agent, “It has to be non-stop. That’s nonnegotiable.” Could it be said that the number of stops between the city of origin and the destination was not a “predominant” factor in the search for a good flight? The obvious answer to both these questions is no, and the same is true about the role of race in the creation of a new district. If it is “non-negotiable” that the district be majority black, then race is given a predominant role.

The District Court wrapped up this portion of its opinion with a passage that highlighted its misunderstanding of the