June 08, 2023

Supreme Court Decides Allen v. Milligan

On June 8, 2023, the U.S. Supreme Court decided Allen v. Milligan, Nos. 21-1086 & 21-1087, holding that Alabama’s redistricting plan adopted for the 2022 congressional elections likely violated Section 2 of the Voting Rights Act, 52 U.S.C. § 10301.

In 2020, a group of plaintiffs challenged Alabama’s existing congressional map as malapportioned and racially gerrymandered in violation of the Equal Protection Clause. In response, Alabama asked an experienced mapmaker to generate a new congressional map using redistricting guidelines set by the legislature’s Reapportionment Committee. The resulting map resembled the previous map, and again produced one district out of seven in which black voters constituted a majority. The Alabama Legislature enacted the resulting map in HB1. 

Three groups of plaintiffs sued to stop Alabama’s Secretary of State from conducting congressional elections under HB1. After reviewing extensive evidence, a three-judge district court concluded that HB1 likely violated Section 2, and enjoined Alabama from using HB1 in forthcoming elections. 

The Supreme Court affirmed that the plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violated Section 2 of the Voting Rights Act under the three-part framework established in Thornburg v. Gingles, 478 U.S. 30 (1986). It rejected Alabama’s plea to modify or abandon Gingles.

The Court’s opinion held that the minority group was “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.” The Court noted that the plaintiffs had presented a significant volume of maps from experts which showed that black voters could constitute a majority in a second district that was “reasonably configured” without “tentacles, appendages, bizarre shapes, or any other obvious irregularities.” The Court rejected the State’s challenge to the plaintiffs’ maps based on their separation of the purported Gulf Coast “community of interest” because the testimony in favor of the Gulf Coast “community of interest” was partial and unpersuasive, and because the State’s proposed maps separated another “community of interest,” the Black Belt. The Court next rejected that the State could justify HB1 based on its adherence to a previously used districting map. Likewise, the totality of the circumstances supported that the elections were racially polarized because Black Alabamans enjoyed virtually zero success, the political campaigns were “characterized by overt or subtle racial appeals,” and Alabama had an “extensive history of repugnant racial and voting-related discrimination.”

The Court next rejected the State’s attempts to change the Court’s Section 2 jurisprudence. It expressly rejected the State’s invitation to apply a “race-neutral benchmark” requirement to the Plaintiffs’ alternative map, finding that such a requirement was “compelling neither in theory nor in practice.” The existing Gingles threshold inquiry that was the baseline of the Court’s Section 2 jurisprudence for nearly 40 years had not produced many successful challenges and did not mandate proportionality. Instead, Gingles appropriately leaves the primary duty and responsibility for reapportionment with the State, not the federal courts. The Court also rejected Alabama’s argument that Section 2 does not apply to single-member redistricting cases, because the Voting Rights Act applies to “prerequisites” which necessarily includes the determination of where to cast your ballot and who you are eligible to vote for.” Nor was Section 2 as applied to redistricting unconstitutional under the Fifteenth Amendment because nothing in the Amendment precludes Congress from outlawing voting practices that have discriminatory effects. 

Chief Justice Roberts delivered the opinion of the Court, which was joined in full by Justices Sotomayor, Kagan, and Jackson. Justice Kavanaugh partially joined the opinion of the Court and filed a concurring opinion in part. Justice Thomas filed a dissenting opinion, joined by Justice Gorsuch, and in part by Justices Barrett and Alito. Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined.

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