Page:Allen v. Milligan.pdf/75

30 The majority opinion does not acknowledge the District Court’s express proportionality-based reasoning. That omission is of a piece with its earlier noted failures to acknowledge the well-known indeterminacy of the Gingles framework, that black Alabamians are about two-sevenths of the State’s population, and that the plaintiffs here are thus seeking statewide proportionality. Through this pattern of omissions, the majority obscures the burning question in these cases. The District Court’s vote-dilution finding can be justified only by a racially loaded benchmark—specifically, a benchmark of proportional control based on race. Is that the benchmark the statute demands? The majority fails to confront this question head on, and it studiously avoids mentioning anything that would require it to do so.

The same nonresponsiveness infects the majority’s analysis, which is largely devoted to rebutting an argument nobody makes. Contrary to the majority’s telling, Alabama does not equate the “race-neutral benchmark” with “the median or average number of majority-minority districts” in a large computer-generated set of race-blind districting plans. The State’s argument for a race-neutral benchmark is rooted in the text of §2, the logic of vote-dilution claims, and the constitutional problems with any nonneutral benchmark. See Brief for Appellants 32–46. It then relies on the computer evidence in these cases, among other facts, to argue that the plaintiffs have not shown dilution relative to any race-neutral benchmark. See id., at 54–56. But the idea that “race-neutral benchmark” means the composite average of many computer-generated plans is the majority’s alone.

After thus straw-manning Alabama’s arguments at the outset, the majority muddles its own response. In a perfunctory footnote, it disclaims any holding that “algorithmic map making” evidence “is categorically irrelevant” in §2