28
ALLEN v. MILLIGAN
Opinion of the Court
the maps they produce yield different benchmark results?
How are courts to decide?
Alabama does not say; it offers no rule or standard for
determining which of these choices are better than others.
Nothing in §2 provides an answer either. In 1982, the computerized mapmaking software that Alabama contends
plaintiffs must use to demonstrate an (unspecified) level of
deviation did not even exist. See, e.g., J. Chen & N. Stephanopoulos, The Race-Blind Future of Voting Rights, 130
Yale L. J. 862, 881–882 (2021) (Chen & Stephanopoulos).
And neither the text of §2 nor the fraught debate that produced it suggests that “equal access” to the fundamental
right of voting turns on computer simulations that are technically complicated, expensive to produce, and available to
“[o]nly a small cadre of university researchers [that] have
the resources and expertise to run” them. Brief for United
States as Amicus Curiae 28 (citing Chen & Stephanopoulos
882–884). 8
One final point bears mentioning. Throughout these
cases, Alabama has repeatedly emphasized that HB1 cannot have violated §2 because none of plaintiffs’ two million
odd maps contained more than one majority-minority district. See, e.g., Brief for Alabama 1, 23, 30, 31, 54–56, 70,
79. The point is that two million is a very big number and
that sheer volume matters. But as elsewhere, Alabama
misconceives the math project that it expects courts to oversee. A brief submitted by three computational redistricting
experts explains that the number of possible districting
maps in Alabama is at least in the “trillion trillions.” Redistricting Brief 6, n. 7. Another publication reports that
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8 None of this is to suggest that algorithmic mapmaking is categorically
irrelevant in voting rights cases. Instead, we note only that, in light of
the difficulties discussed above, courts should exercise caution before
treating results produced by algorithms as all but dispositive of a §2
claim. And in evaluating algorithmic evidence more generally in this
context, courts should be attentive to the concerns we have discussed.
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