Page:Allen v. Milligan.pdf/70

Rh, determinate legal principles. But it is widely acknowledged that “Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim,” with commentators “noting the lack of any ‘authoritative resolution of the basic questions one would need to answer to make sense of [§2’s] results test.’ ” Merrill v. Milligan, 595 U. S. ___, ___–___ (2022) (, dissenting from grant of applications for stays) (slip op., at 1–2) (quoting C. Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377, 389 (2012)). If there is any “area of law notorious for its many unsolved puzzles,” this is it. J. Chen & N. Stephanopoulos, The Race-Blind Future of Voting Rights, 130 Yale L. J. 862, 871 (2021); see also Duchin & Spencer 758 (“Vote dilution on the basis of group membership is a crucial instance of the lack of a prescribed ideal”).

The source of this confusion is fundamental: Quite simply, we have never succeeded in translating the Gingles framework into an objective and workable method of identifying the undiluted benchmark. The second and third preconditions are all but irrelevant to the task. They essentially collapse into one question: Is voting racially polarized such that minority-preferred candidates consistently lose to majority-preferred ones? See Gingles, 478 U. S., at 51. Even if the answer is yes, that tells a court nothing about “how hard it ‘should’ be for minority voters to elect their preferred candidates under an acceptable system.” Id., at 88 (O’Connor, J., concurring in judgment). Perhaps an acceptable system is one in which the minority simply cannot elect its preferred candidates; it is, after all, a minority. Rejecting that outcome as “dilutive” requires a value judgment relative to a benchmark that polarization alone cannot provide.

The first Gingles precondition is only marginally more useful. True, the benchmark in a redistricting challenge