After leading the charge for years to eviscerate the Voting Rights Act (VRA), Chief Justice John Roberts did a stunning about-face and spearheaded its preservation in Allen v. Milligan.
The 5-4 majority opinion, written by Roberts, held that Alabama’s congressional map likely violates the Voting Rights Act’s prohibition against discriminatory voting practices. The court refused Alabama’s request to interpret the Voting Rights Act in a manner that would have made it much more difficult to challenge racist redistricting plans.
Brett Kavanaugh, who bought into the specious right-wing “voter fraud” theory when he was a circuit court judge and appeared inclined to gut the Voting Rights Act during oral argument in Milligan, instead joined Roberts and the three liberal members of the court in salvaging it.
Alabama’s Republicans Drew a Racist Congressional Map
At issue in Milligan was a GOP-drawn redistricting map to be used in voting for seven seats in the U.S. House of Representatives. Despite the fact that Black people comprise 27 percent of Alabama’s population, the map included only one Black-majority district, out of seven districts.
Alabama’s map packed large numbers of Black voters into one congressional district in the “Black Belt” and dispersed the remaining Black population throughout other districts so Black voters had almost no chance of electing a second representative. The map diluted the political power of the state’s Black residents.
In January 2022, a three-judge panel of the federal district court (including two Trump appointees) found that Alabama’s map probably violated Section 2 of the Voting Rights Act, which bars voting practices that deny or abridge the right to vote on account of race. The court ordered the state to draw a second Black majority or plurality district.
The following month, a 5-4 right-wing majority of the Supreme Court suspended the district court ruling and permitted the discriminatory map to be used in the 2022 midterm elections. Republicans won six of Alabama’s seven House seats. Roberts dissented from the court’s decision to halt the use of the new map but expressed uncertainty about what is required to prove a violation of Section 2. Kavanaugh voted with the majority, saying that state voting rules shouldn’t be changed shortly before an election.
In its decision in Milligan, the court rejected Alabama’s argument that maps should be drawn in a race-neutral manner (even though the effect of the new map was blatant race discrimination).
The majority affirmed the district court’s ruling after deciding that the lower court correctly applied the three-part test set forth in the 1986 case of Thornburg v. Gingles. First, the plaintiffs must show that enough Black voters live in a sufficiently “compact” area to make up a majority of a district. Second, they need to demonstrate that the voters are “politically cohesive” — that is, they tend to vote for the same candidates. Third, plaintiffs must show that Alabama’s white voters also tend to vote “sufficiently as a bloc to enable it . . . to defeat the [Black voters’] preferred candidate.” Then, the court will consider the totality of the circumstances, including “the extent of any history of official discrimination in the state,” to determine whether the election process is “equally open” to voters of color.
Roberts decried “Alabama’s attempt to remake our [Section 2] jurisprudence anew” by relying on computer-generated maps drawn with no consideration of race. The majority declined Alabama’s invitation to alter the Gingles framework “that has been the baseline of our [Section 2] jurisprudence for nearly forty years,” Roberts’ wrote.
Indeed, Roberts noted, the limitations imposed by Gingles have led to very few successful Section 2 lawsuits. The “exacting requirements” of Section 2, he wrote, “[limit] judicial intervention to ‘those instances of intensive racial politics’ where the ‘excessive role [of race] in the electoral process … den[ies] minority voters equal opportunity to participate.’”
The Supreme Court adopted the district court’s findings that “elections in Alabama were racially polarized,” that “Black Alabamians enjoy virtually zero success in statewide elections,” and that “Alabama’s extensive history of repugnant racial and voting-related discrimination is undeniable and well documented.”
Roberts and Kavanaugh Left the Door Open to Weaken Section 2 in the Future
Roberts began his opinion as follows:
Shortly after the Civil War, Congress passed and the States ratified the Fifteenth Amendment, providing that “[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude”. … In the century that followed, however, the Amendment proved little more than a parchment promise. Jim Crow laws like literacy tests, poll taxes, and “good-morals” requirements abounded … “render[ing] the right to vote illusory for blacks.” In 1965, “[s]purred by the Civil Rights movement, Congress enacted and President Johnson signed into law the Voting Rights Act.”
Section 2 of the Voting Rights Act was passed to enforce the 15th Amendment. It prohibits an election practice that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That occurs when minority voters “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
A violation of Section 2 does not require intentional discrimination; it is sufficient to show that the effects of the practice were discriminatory. Congress amended Section 2 in 1982 to forbid not just voting rules and policies written with racist intent, but also those that had discriminatory effects. While the House of Representatives was debating the amendment to Section 2, Roberts, then a young Justice Department lawyer in the Reagan administration, “wrote upwards of 25 memos opposing an effects test for Section 2,” Ari Berman noted at Politico.
In 2013, Roberts authored the opinion in Shelby County v. Holder, a ruling that gutted Section 5 of the Voting Rights Act, which had required federal preclearance before changes to election rules in jurisdictions with a history of discriminatory voting practices. Roberts provided assurances that Section 2 would still be available to protect voting rights.
But in 2021, Roberts (and Kavanaugh) voted with the majority in Brnovich v. Democratic National Committee to weaken Section 2. The six right-wingers on the court upheld two voting restrictions that made it harder for people of color to vote. Unlike Milligan, the Brnovich case didn’t involve claims of vote dilution.
Perhaps Roberts and Kavanaugh made a political calculation with their votes in Milligan to counter the negative public perception of the Supreme Court as merely a right-wing mouthpiece. In all likelihood, both of them will vote to gut affirmative action later this month.
Roberts reserved the possibility of weakening the Voting Rights Act in a future case, writing that this decision does not “diminish or disregard” the concerns of the right-wing members of the court that Section 2 “may impermissibly elevate race in the allocation of political power within the States.”
In his concurring opinion, Kavanaugh quoted Clarence Thomas’s dissent, which argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Since Alabama hadn’t raised that argument, Kavanaugh said, he would “not consider it at this time,” implying that if the argument were raised in a future case, he would consider it.
Milligan doesn’t strengthen the Voting Rights Act; it maintains the status quo in the face of what was widely predicted would be another blow to voting rights. But Milligan will reverberate in other Southern states and might well lead to the Democrats taking back control of the House of Representatives.
The Milligan Decision May Well Shift Five House Seats to Democrats
In the wake of the Milligan decision, the nonpartisan Cook Political Report projected that five seats would shift to Democrats in the House of Representatives, the number required for them to regain the majority.
Section 2 lawsuits are pending in both Louisiana and Georgia, which have been awaiting the decision in Milligan. It is likely those two states will each see a new majority-minority district before the 2024 congressional election.
Redistricting schemes are also being challenged in Texas and Florida; Texas may have to add as many as five majority-minority districts to its congressional map.
Democracy Docket reports that there are 31 active Section 2 cases in 10 different states, primarily in the South.
“It’s a great day in Alabama,” Bobby Singleton, a Black Democrat who serves as the State Senate minority leader, told The New York Times. But, Singleton added, “Racism is still alive and well in the state of Alabama, and the Supreme Court was able to see it.”
The Voting Rights Act has dodged a bullet — for now. The court reaffirmed the constitutionality of Section 2. But both Roberts and Kavanaugh left the door open to revisit Section 2 in the future. The fate of the right to vote is hanging by a slender thread.
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