[A ruling in an Alabama case upheld a key provision of the Voting
Rights Act, but challenges remain for communities of color. ]
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SCOTUS VOTING RIGHTS WIN WILL IMPACT MULTIPLE STATES  
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Michael Li
June 9, 2023
Brennan Center for Justice
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_ A ruling in an Alabama case upheld a key provision of the Voting
Rights Act, but challenges remain for communities of color. _

U.S. Supreme Court, by zacklur (CC BY-NC-SA 2.0)

 

Black voters in Alabama won a victory at the Supreme Court Thursday
with a narrow 5–4 ruling
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by Chief Justice John Roberts holding that state lawmakers violated
the Voting Rights Act when they redrew Alabama’s congressional map
after the 2020 census.

The decision is an important, if qualified, win for voting rights
advocates. If the high court had done what Alabama and conservative
groups had asked — and what the dissenting justices wanted — it
would have radically rewritten or even eliminated one of the few
remaining protections of the Voting Rights Act.

At the heart of the case, _Allen v. Milligan_, was the question of
whether the congressional map adopted by lawmakers illegally diluted
Black political power when it divided communities in Alabama’s
mostly rural and heavily impoverished Black Belt region among five
different districts.

Under Section 2 of the Voting Rights Act, minority voters can sue to
force states or localities to change voting maps if they can show that
racially polarized voting interacts with the design of maps to make it
impossible for minority communities to win political power. That’s
exactly what Black voters argued happened in Alabama.

Under the legislature’s map, although Black voters are a substantial
majority in the 7th Congressional District on the western side of the
state, represented by Democrat Terri Sewell, they are 30 percent or
less of the population in the region’s other four districts. Given
Alabama’s long history of starkly racially polarized voting, this
careful “packing and cracking
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has the effect of ensuring that Black voters are always shut out of
power except where they are a majority or near majority. While in many
other parts of the country, a lack of racially polarized voting means
minority voters can win power through the hard work of building
multiracial coalitions, that simply isn’t possible under current
circumstances in Alabama. Six decades after the end of Jim Crow, white
and Black Alabamians continue to prefer completely different
candidates — strongly and unwaveringly so.

[map]Source: Declaration of Moon Duchin filed by plaintiffs in
Milligan v. Merrill.

A three-judge trial court that included two appointees of President
Trump unanimously agreed
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Black voters, ordering Alabama to redraw its map to create two
districts “where Black voters either comprise a voting-age majority
or something quite close to it.”

Alabama appealed, claiming that it could not create a second Black
district without violating lawmakers’ stated policy preference for
changing districts as little as possible in redistricting, including
making sure counties along the state’s Gulf Coast were kept whole
within the same district. It also urged the high court to throw out
long-established precedents and adopt a “race-neutral benchmark”
for judging what the appropriate number of minority districts should
be.

Chief Justice John Roberts, joined by Justice Brett Kavanaugh and the
court’s three liberal justices, forcefully rejected
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they described as “Alabama’s attempt to remake our §2
jurisprudence anew.” Under Alabama’s approach, the court said “a
State could immunize from challenge a new racially discriminatory
redistricting plan simply by claiming that it resembled an old
racially discriminatory plan.” The Court also noted that evidence in
the case did not establish that keeping Gulf Coast counties together
should be a higher priority than keeping the Black Belt together,
describing the region as a community of interest with “a high
proportion of black voters who ‘share a rural geography,
concentrated poverty, unequal access to government services,  . . .
lack of adequate healthcare,’ and a lineal connection to ‘the many
enslaved people brought there to work in the antebellum period.’”

Instead, the Court said
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the trial court had “faithfully applied our precedents and correctly
determined” that the Voting Rights Act required creation of a second
district where Black voters had a reasonable opportunity to be
politically successful. Roberts suggested this should be easy to do
given that the “plaintiffs adduced eleven illustrative maps—that
is, example districting maps that Alabama could enact—each of which
contained two majority-black districts that comported with traditional
districting criteria” and that were more compact, on average than
the state’s map. (The yellow districts in the maps below from an
expert report presented to the trial court are just four examples of
how the new district could be configured.)

[map]
Source: Declaration of Moon Duchin filed by plaintiffs in Milligan v.
Merrill.

The ruling will reverberate across the country. The most immediate
impact is likely to be in Louisiana, where last year a federal
district court ordered the state’s congressional map to be redrawn
to create an additional Black district. The Supreme Court put that
ruling on hold
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resolution of the Alabama case, but is expected in the coming days to
send the case back to the trial court. Likewise, in Georgia, a
court will hold hearings
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fall on claims that the Voting Rights Act requires redrawing of
Georgia’s congressional map to create an additional Black district.
Along with Alabama, these states could see new maps in time for the
2024 elections.

The ruling will also affect roughly three dozen other ongoing Section
2 cases around the country, ranging from challenges to Texas’s
congressional map to lawsuits over city council districts in Dodge
City, Kansas, and county commission districts in Thurston County,
Nebraska. However, many of these cases are not as far along as the
cases in Louisiana and Georgia, and it remains to be seen whether this
second group of cases, including their inevitable appeals, can be
resolved before the next election.

But if the decision didn’t further dismantle voting rights
protections, it also didn’t strengthen them. In many ways, in fact,
the win in _Milligan_ spotlights how thin the tools for fighting
discriminatory line drawing have become. The _Milligan_ opinion
itself notes that in recent years, Section 2 lawsuits have only
“rarely been successful,” with fewer than a dozen Section 2
victories since 2010 at any level of government, including school
boards and city councils.

Indeed, for years, the Supreme Court has been slowly but steadily
eroding the robustness of Section 2, for example by imposing
compactness and demographic requirements that act in tandem to make it
harder for plaintiffs to win relief from racially discriminatory maps
in the diverse, multi-ethnic communities where Americans increasingly
live.

And, even where Section 2 plaintiffs succeed, as Alabama and Louisiana
illustrate, courts often use the so-called _Purcell_ principle
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the excuse of an upcoming election to delay the redrawing of maps,
effectively giving discriminatory line drawers one free election and
term of office to enact policy. While districts may ultimately be
struck down, people must live with the consequences of elections under
illegal maps. In short, even if the Supreme Court didn’t do as many
feared and further whittle away at the Voting Rights Act, the status
quo for voters, and minority voters in particular, remains deeply
inadequate.

While _Milligan_ should be celebrated as a win for fair
representation, it cannot be an excuse for congressional inaction.
This month marks the 10-year anniversary of the Supreme Court’s
decision in _Shelby County v. Holder_
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decision that gutted another key provision of the Voting Rights
Act_. _In the decade since, Congress has tried and repeatedly failed
to overcome legislative inertia to respond. Section 2 lives to fight
another day, but the provision by itself is not — and never has been
— enough. It is well past time to not only restore but strengthen
the Voting Rights Act for a 21st-century America. Nothing less than
the future of the country’s emerging multiracial democracy is at
stake. Congress must act.

_Michael Li [[link removed]] serves
as senior counsel for the Brennan Center’s Democracy Program, where
his work focuses on redistricting, voting rights, and elections. Prior
to joining the Brennan Center, Li practiced law at Baker Botts L.L.P.
in Dallas for ten years. He was the author of a widely cited blog on
redistricting and election law issues that the New York Times called
“indispensable.” He is a regular writer and commentator on
election law issues, appearing on PBS Newshour, MSNBC, and NPR, and
in print in the New York Times, Los Angeles Times, USA Today, Roll
Call, Vox, National Journal, Texas Tribune, Dallas Morning News,
and San Antonio Express-News, among others._

_The Brennan Center is a nonpartisan law and policy institute,
striving to uphold the values of democracy._

* Supreme Court
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* Voting Rights Act
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* voting rights
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* Alabama
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