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Friend,
On Oct. 4, the U.S. Supreme Court heard oral arguments in Merrill v. Milligan, a case that could reshape the ability of voters of color to choose who represents them in Congress and other state and local legislative bodies.
At issue in Merrill is whether Alabama’s 2021 congressional redistricting plan dilutes the votes of its Black population in violation of Section 2 of the Voting Rights Act (VRA). Section 2 prohibits states and localities from drawing or maintaining districts that have a discriminatory effect no matter the underlying intent of map drawers. This requires states to redraw maps that deny voters of color an equal opportunity to participate in the political process and to elect candidates of their choice.
Alabama holds seven seats in the U.S. House of Representatives. Under its current map, the Legislature used a gerrymandering technique calling “cracking” in the state’s Black Belt, a region known for its fertile, black soil and where Black people comprise a majority of the population. The map drawers dispersed residents in such a way that Black voters have the opportunity to elect candidates of their choice in only one of the state’s districts, despite comprising roughly 27% of the state’s voting age population.
In January, a three-judge district court panel – two of whom were Trump appointees – found that Alabama’s map was substantially likely to violate Section 2. Meticulously applying the three-prong test from the seminal vote dilution case Thornburg v. Gingles, the district court found that: (1) the Black voting age population was sufficiently numerous and geographically compact to constitute a majority in a second reasonably sized voting district; (2) Black Alabamians vote in a politically cohesive way; and (3) white voters vote sufficiently as a bloc to defeat Black voters’ preferred candidates.
As with all racial gerrymandering cases, after passing the Gingles threshold, the district court examined the totality of the circumstances. Factors the U.S. Senate enumerated in 1982, such as the history of voting discrimination, help inform this analysis. As a result, the district court panel ordered the Alabama Legislature to create a second Black opportunity district in time for the 2022 midterm election. However, Alabama appealed to the U.S. Supreme Court, which decided to hear the case and stayed the decision. This means Alabama’s current map of congressional districts will remain in place through the midterm elections.
Chipping away at rights
So what did the oral arguments in the Supreme Court reveal?
The good news is the court appears slated to reject Alabama’s most radical arguments and maintain that Section 2 does not turn on proving discriminatory intent. At the outset, Justice Elena Kagan stated that under a typical Section 2 analysis, this case should be “a slam dunk” given the state’s stark history of discrimination and racially polarized voting. She also clarified that finding in favor of Alabama would be a significant departure from the court’s decades-long approach to Section 2.
Regardless, the bench’s conservative supermajority is poised to rule in favor of Alabama.
Justice Amy Coney Barrett summarized one of Alabama’s key contentions: that it is caught in the so-called tension between the equal protection clause of the 14th Amendment – which Alabama asserts requires race neutrality – and the Voting Rights Act, which requires taking race into account when drawing districts.
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In solidarity,
Your friends at the Southern Poverty Law Center
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