Almost exactly 10 years ago, Chief Justice John Roberts wrote a majority opinion gutting Sections 4 and 5 of the landmark Voting Rights Act (VRA). “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2,” he wrote at the time.
Despite that promise, a case directly challenging Section 2 wound up before the U.S. Supreme Court this term. But today, June 8, 2023, Roberts made good on his promise. In a 5-4 opinion, the Supreme Court affirmed a lower court’s decision that Alabama’s congressional map diluted the voting strength of Black voters.
The majority — in clear and no uncertain terms — upheld Section 2 of the VRA and its current application, a massive victory for voting rights and for Black Alabamians who will have the opportunity to elect the candidates of their choice.
The case, Allen v. Milligan, centered on whether the state of Alabama violated Section 2 of the VRA when it enacted a congressional map that created one rather than two majority-Black districts. In January 2022, a three-judge panel, including two judges nominated by former President Donald Trump, found that Alabama’s congressional map likely violated Section 2.
When the case was first accelerated to the Supreme Court’s emergency docket in February 2022, even Chief Justice John Roberts believed that the three-judge panel properly applied existing law. Now, in a welcomed move that surprised voting rights advocates, the Court kept the landmark VRA intact.
The majority opinion written by Roberts is joined by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and joined in part by Justice Brett Kavanaugh.
The majority resoundingly endorsed the Gingles test, a criteria to determine racial vote dilution in redistricting maps.
The majority begins with a brief discussion of the history of the landmark VRA, specifically emphasizing amendments adopted in 1982 that added a “results test” to Section 2. In this case, the Section 2 vote dilution claims hinged on discriminatory results, not discriminatory intent.
The majority then goes on to keep the current application of Section 2 fully intact, validating the use of a long-applied test known as the Gingles factors.
For the past 40 years, courts have relied on this test established in a 1986 case, Thornburg v. Gingles, to prove a pattern of racial vote dilution:
- The minority group in question must be “sufficiently large and geographically compact” to constitute a political district;
- the minority group must be “politically cohesive,” meaning the group generally votes for similar candidates and
- the majority group must also be “politically cohesive” and vote to defeat the preferred candidates of the minority group.
The court then considers the context of the local environment to determine if the map denies the minority group an equal opportunity to participate in the political process. The court looks to factors that include the state’s history of racial discrimination in voting, impact of racial discrimination on education, employment and health outcomes and appeals to racism in campaigns.
“Gingles has governed our Voting Rights Act jurisprudence since it was decided 37 years ago. Congress has never disturbed our understanding of §2 as Gingles construed it,” the Court explained. “And we have applied Gingles in one §2 case after another, to different kinds of electoral systems and to different jurisdictions in States all over the country.”
When the three-judge panel determined that Alabama must redraw its congressional map with a second majority-Black district, it relied on a range of testimony and evidence to satisfy Gingles and reach that conclusion. Today, Roberts agreed with the lower court’s in-depth fact finding.
The state of Alabama had contended that the first Gingles factor was not satisfied because a map with a second majority-Black district would subvert other criteria such as keeping communities of interest together — specifically, in the state’s mind, the Gulf Coast region — or core retention, a principle that promotes preserving districts as they were drawn in previous decades.
Roberts rejected Alabama’s argument, noting that the Supreme Court has never held that adherence to a past map could trump a Section 2 claim. “If that were the rule,” he continued, a state could shield “a new racially discriminatory redistricting plan simply by claiming that it resembled an old racially discriminatory plan. That is not the law.”
In regards to the second and third Gingles factors, neither party disputed that Alabama has high levels of racially polarized voting. In other words, Black and white voters in Alabama prefer different candidates and the white-preferred candidates almost always prevail.
After walking through the three-judge panel’s conclusions for each of the three Gingles prongs and consideration of the local context, Roberts emphasized: “We see no reason to disturb the District Court’s careful factual findings.”
After reiterating that the three-judge panel properly applied existing law, the majority rejected Alabama’s attempt to rewrite the law.
The majority went on to fully reject the state of Alabama’s proposed “race-neutral benchmark” as an application of Section 2 that should replace Gingles. The majority saw through Alabama’s cynical and thinly-veiled attempt to undermine years of precedent, writing that the “heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our §2 jurisprudence anew.”
The majority outlined why Alabama’s three-pronged “race-neutral benchmark” was misguided.
First, Alabama wanted plaintiffs to show that a map produced to satisfy the first Gingles condition was not “based” on race. In a section of the opinion not joined by Kavanaugh — thus the part of the opinion that is not controlling — Roberts wrote that there is a difference between “being aware of racial considerations and being motivated by them.” In practice, this section explained how the first Gingles factor will always utilize race to an extent because that “is the whole point of the enterprise” in seeing if an additional majority-minority district could be drawn.
Second, Alabama would have required plaintiffs to show that an enacted plan diverged from an “average plan” drawn without race taken into account. This is where Alabama’s misplaced fixation on computer simulations arose. During oral argument in October, the lawyers and justices alike discussed the proper role of “computer simulations” or “algorithms” in the Gingles test. In fact, among the 92 total times the justices spoke during the oral argument, simulations were mentioned 30 times.
Fortunately, in today’s opinion, the majority put that discussion to bed, noting that Alabama’s focus on expert-created maps does not reflect how Alabama draws maps nor the total number of map possibilities. “Section 2 cannot require courts to judge a contest of computers when there is no reliable way to determine who wins, or even where the finish line is,” wrote the majority, shutting down Alabama’s over-emphasis on computers to prove “race-neutrality.”
Finally, the majority rejected Alabama’s expectation that any deviation between an enacted plan and “race-neutral” alternatives needs to be explained by racial discrimination. The majority quickly foreclosed this line of reasoning, reminding Alabama that Section 2 of the VRA has a “results” test for a reason; racially discriminatory intent is not required to prevail.
The majority explicitly recognized that Section 2 of the VRA applies to redistricting and is constitutional.
In the final section, Roberts rejected two more of Alabama’s far-flung attempts to undermine Section 2 of the VRA.
Alabama attempted to argue that Section 2 didn’t apply to redistricting at all and instead only applied to voting practices that directly impacted ballot access, such as voter registration policies. However, Roberts noted that Alabama’s understanding could not be reconciled with the Court’s “unbroken line of decisions stretching four decades” that applied Section 2 to redistricting maps.
(As a note, Justice Clarence Thomas’ dissent made the same unfounded argument as Alabama that Section 2 does not apply to redistricting. Five justices rejected that today.)
The Court also rejected Alabama’s attempt to strike down Section 2 as unconstitutional under the 15th Amendment of the U.S. Constitution. By doing so, the nation’s highest court confirmed the law’s constitutionality.
Today’s decision did not restore previously weakened sections of the VRA, but it maintained the status quo. While Alabama voters unfortunately voted under this illegal map in the 2022 midterm elections, the state will now have to redraw new, fairer districts. The impact will reverberate in at least nine other states, but most immediately in Louisiana where litigation was paused pending this decision.
Allen was the culmination of a decades-long struggle for better representation for Black voters in Alabama. While that effort appeared to be at risk before a Court increasingly hostile to voting rights, today, a landmark federal law, fairer districts for Black Alabamians and voting rights efforts across the country emerged unscathed.