In a development that few expected, the Supreme Court issued a 5-4 decision in Allen v Milligan (formerly Merrill v. Milligan) this week that upheld a lower court ruling that an Alabama redistricting plan was likely invalid because it harmed Black voters’ rights under Section 2 of the Voting Rights Act (VRA). The decision, written by Chief Justice Roberts, squarely rejected arguments that tried to weaken or overturn past precedent protecting voting rights. Nevertheless, the ruling’s limitations and the vociferous dissents of far-right justices suggest that dangers for voting rights persist and that legislation to strengthen voting rights remains crucial. 

 

What is the case about and why was a negative result expected? 

 After the 2020 census, Alabama redrew congressional district maps, as many states did, before the 2022 elections. Despite substantial growth in the Black population of the state, however, the redistricting plan had only one district in which Blacks were the majority of the voting age population, as had existed before. Several groups sued, contending that the plan racially gerrymandered Black voters in violation of Section 2 of the VRA, and that there should have been an additional majority-Black district. 

 A three-judge federal court conducted extensive hearings and other work on the case, and issued a preliminary injunction forbidding the state from using its map in the upcoming 2022 elections because it probably violated Section 2. Rather than working on another plan, however, Alabama went to the Supreme Court and sought a stay of the lower court decision so that it could use the plan in the 2022 elections.  

 In February 2023, the Supreme Court issued an unexplained 5-4 shadow docket ruling that stayed the lower court decision, therefore allowing Alabama to use its discriminatory redistricting plan in the 2022 elections. The Court also agreed to review the lower court holding on the merits, although it would not complete its review until 2023, after the election. The shadow docket holding, along with the Court majority’s increasingly negative record on voting rights and the tenor of comments at oral argument, led most observers to expect a similarly negative decision from the Court on the merits. At the least, many expected, the Court would uphold the Alabama plan, and could well weaken Court precedent and the VRA, making it difficult or impossible to challenge redistricting plans with harmful effects on minority voters.  

 

How did the Supreme Court actually rule? 

 In a 5-4 decision by Chief Justice John Roberts, the Court upheld the three-judge court decision and rejected Alabama’s arguments against it and previous interpretations of the VRA. Justices Sotomayor, Kagan, and Jackson joined Roberts’ opinion, as did Justice Kavanaugh for the most part. Justice Clarence Thomas wrote a vociferous dissent, and Justice Samuel Alito wrote a separate dissent, joined by Justice Neil Gorsuch. 

 Initially, Roberts explained that the lower court had carefully and correctly applied the Court’s past precedent, including the landmark 1986 ruling in Thornburg v Gingles, in concluding that the Alabama redistricting plan probably violated Section 2 because of its discriminatory effect on Black voters. He then methodically reviewed and rejected each of the state’s efforts to “remake” the Court’s “Section 2 jurisprudence” and to seriously weaken protection of minority voting rights. Specifically: 

•  Roberts rejected the claim that given modern map-making, states should use a “race-neutral benchmark” derived from “race-blind” maps to determine proper districting. This view, Roberts explained, “runs headlong into” previous Supreme Court precedent, which makes clear that Section 2 is violated when a plan has the discriminatory effect of diluting minority voting strength, as Alabama’s does. Roberts wrote that Alabama’s argument contradicts Gingles’ clear holding that courts should consider the “totality of circumstances”, including past discrimination, in determining whether a state’s plan or practice has a discriminatory effect. 
• Roberts refused to accept Alabama’s claim that proposed new redistricting maps must not take race into account. Although he agreed that race cannot be the “predominant factor” in drawing district lines, even if it benefits minorities, he reaffirmed the principle that Section 2 “demands consideration of race” in determining whether additional majority-minority districts should be drawn. The assertion that mapmakers must be “entirely blind” to race, Roberts wrote, has “no footing” in the Court’s precedent.
•  Roberts rejected what he called the “inescapable consequence” of the arguments of Alabama and the dissent that “Gingles must be overruled.” He carefully explained the correctness of that decision interpreting the VRA and Congress’ clear acceptance of it over the years.  
• Roberts refused to accept the state’s claim that Section 2 should not be applied at all to question state redistricting decisions and should be limited to challenges to actual voting practices and procedures. This assertion contradicts “an unbroken line of decisions stretching four decades,” Roberts explained, and there was no basis for abandoning or overruling “nearly a dozen of our cases.”   
• Roberts explicitly rejected Alabama’s assertion that “as applied to redistricting,” Section 2 “is unconstitutional” because it requires proof of discriminatory effect not intent. Over “forty years ago,” Roberts wrote, the Court made clear that Congress can “outlaw voting practices that are discriminatory in effect.”  As properly interpreted by the Court, redistricting plans with discriminatory effects violate Section 2, and the Constitution suggests nothing to the contrary.  

 

So why does danger to voting rights remain after this ruling and what should we do? 

 Although the Court issued a positive decision in Milligan, that does not change the Court’s previous rulings seriously harming voting rights, such as Chief Justice Roberts’ holding effectively eliminating Section 5 of the VRA in Shelby County v Holder.  Action by Congress to enact legislation like the John R Lewis Voting Rights Act and the Freedom to Vote Act remains crucial to protect voting rights across the country. 

 In addition, several aspects of the ruling clearly leave room for retreat in future redistricting cases. Roberts explicitly recognized the “concern” that Section 2 may be used to “impermissibly elevate race” in such cases, but that this did not occur based on “the record before us.” This makes it very important that we have careful, fair-minded lower court judges adjudicating such cases, so that confirmation of additional Biden nominees to our lower courts is crucial. 

 Several parts of the majority opinion, moreover, were explicitly not agreed to by Kavanaugh, so that there were technically only four votes for them. This includes the rejection of the attack on Gingles and the claim that mapmakers should not take race into account. Given the vociferous dissents, including Thomas’ claim that the majority ruling “fossilizes all of the worst aspects of our long-deplorable vote-dilution jurisprudence,” it remains all too possible that in a future case, Justice Kavanaugh could join with his right-wing colleagues and form a majority to seriously weaken protection against racial gerrymandering in redistricting. In fact, Kavanaugh even specifically stated that he was not taking a position on one of Thomas’s attacks because the parties themselves hadn’t raised it. 

As the 2024 election approaches, redistricting controversies are likely in Alabama and other states. Vigilance and effective advocacy to promote voting rights will remain crucial in the future.