How the U.S. Supreme Court’s Decision in Allen v. Milligan Will Impact Ongoing Redistricting Litigation
Update: On Monday, June 12, Black voters in a previously dismissed lawsuit challenging Arkansas’ congressional map under Section 2 appealed their case to the U.S. Supreme Court. As of June 12, there are 32 active Section 2 lawsuits ongoing across 10 states.
On Thursday, June 8, the U.S. Supreme Court issued a 5-4 decision in the landmark redistricting case, Allen v. Milligan, in which the majority upheld Section 2 of the Voting Rights Act (VRA). Section 2 prohibits any voting law, practice or map that results in the denial of the right to vote of any citizen on account of race. In a major victory for voters, the majority affirmed a lower court’s decision that blocked Alabama’s congressional map for likely violating Section 2, paving the way for the state to add an additional majority-Black district.
Crucially, the Court’s opinion in Allen leaves Section 2 — the most litigated portion of the VRA — in place, which will allow pro-voting plaintiffs to continue utilizing this indispensable tool to challenge racially discriminatory maps in court. “Alabama’s understanding of [Section 2] would require abandoning four decades of the Court’s [Section 2] precedents…We accordingly decline to recast our [Section 2] case law as Alabama requests,” wrote Chief Justice John Roberts, who authored the majority opinion. Roberts was joined by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, while Justice Brett Kavanaugh joined the majority opinion in part.
This landmark decision will have a reverberating and largely positive impact on active litigation involving Section 2 claims across 10 different states. According to Democracy Docket’s database of 63 active redistricting cases, 31 cases allege Section 2 claims and are currently pending in federal court. Many of these cases involve maps that were drawn during the decennial redistricting process after the release of 2020 census data.
The vast majority of ongoing Section 2 cases mount challenges to maps in southern states such as Georgia, Louisiana, Mississippi and Texas, all of which share invidious histories of enacting racially discriminatory maps and were previously subjected to preclearance requirements under the now-defunct Section 5 of the VRA. Lawsuits across these states and others were brought to remedy alleged violations of Section 2 and to ensure that minority voters have the opportunity to elect candidates of their choice.
In addition to benefiting Alabama voters, the Court’s decision in Allen creates an opportunity for fairer maps to be adopted in states including Louisiana and Georgia, where litigation could result in the addition of a majority-Black congressional district in each of these states.
Last June, the Supreme Court paused a Section 2 lawsuit over Louisiana’s congressional map pending a decision in Allen. Now that the Court has issued a pro-voting decision in Allen, litigation over Louisiana’s congressional map will resume, creating an opportunity for fairer representation for the state’s Black voters.
Below are Section 2 cases that will move forward following the Court’s opinion in Allen.
Alabama
Two lawsuits brought under Section 2 are ongoing in Alabama: Allen and a separate lawsuit that challenges the state’s legislative maps.
Date filed: Nov. 4, 2021
Plaintiffs: Greater Birmingham Ministries, Alabama State Conference of the NAACP and Black voters in Alabama.
Argument: The plaintiffs allege that the state’s congressional map drawn with 2020 census data intentionally dilutes the voting strength of Black Alabamians in violation of Section 2 of the VRA by only creating one majority-Black district when a second one could also be drawn.
Status: This lawsuit was consolidated with one other, Caster v. Merrill. After a district court blocked the congressional map and ordered the creation of a new map with two majority-Black districts, the Supreme Court stepped in and paused this order. This ensured that the state’s previously blocked map — which only contains one majority-Black district — was in place for the 2022 elections. Then, the Supreme Court took up the case in full and heard oral argument on Oct. 4, 2022. On June 8, 2023, the Supreme Court issued its decision in Allen affirming the trial court’s decision to block the congressional map. Following this decision, the case will go back to the trial court for further litigation that will determine whether Alabama’s congressional map violates Section 2 of the VRA. The Court’s decision in Allen affirming the lower court’s order also means that Alabama’s congressional map will remain temporarily blocked as litigation continues.
Date filed: Nov. 16, 2021
Plaintiffs: Voters, Greater Birmingham Ministries and the Alabama State Conference of the NAACP
Argument: The plaintiffs allege that the Alabama Senate redistricting plan violates Section 2 of the VRA by diluting the voting strength of Black voters. Additionally, the plaintiffs claim that Alabama’s state House and Senate maps are unconstitutional racial gerrymanders in violation of the 14th Amendment to the U.S. Constitution.
Status: This case is paused pending the outcome of Allen. Litigation will continue.
Arkansas
Two Section 2 lawsuits are ongoing in Arkansas: One challenges the state’s legislative redistricting plan and another challenges the state’s method of electing judges to the state Court of Appeals and Supreme Court.
Date filed: Dec. 29, 2021
Plaintiffs: Arkansas State Conference NAACP and Arkansas Public Policy Panel
Argument: The plaintiffs argue that the state House map drawn with 2020 census data violates Section 2 of the VRA by diluting the voting strength of Black voters.
Status: In a 2022 preliminary injunction ruling, a federal judge ruled that there is no private right of action under Section 2 of the VRA, which means that only the U.S. Department of Justice — and not individuals and organizations — can bring Section 2 lawsuits. The case was then dismissed, which the plaintiffs then appealed to the 8th U.S. Circuit Court of Appeals. Oral argument was held on Jan. 11, 2023. The outcome of this decision will determine if private litigants can bring Section 2 claims in states within the 8th Circuit’s jurisdiction including: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
Date filed: June 10, 2019
Plaintiffs: Christian Ministerial Alliance, Arkansas Community Institute and Black voters
Argument: The plaintiffs argue that the at-large method — whereby voters elect a justice to represent the entire state as opposed to a specific district — used to elect state Supreme Court justices and the combined single-member and multi-member districts used to elect judges to the Arkansas Court of Appeals violate Section 2 of the VRA by diluting the voting strength of Black voters in Arkansas.
Status: In February 2021, the court dismissed the claims against the state of Arkansas, the Board of Election Commissioners and the Board of Apportionment, holding that the claims against these entities are barred by sovereign immunity. The plaintiffs’ claims against the remaining defendants — including the Arkansas governor, secretary of state and attorney general — moved forward at trial, which was held on April 25, 2022.
Georgia
Five lawsuits involving Section 2 claims are ongoing in Georgia. Two lawsuits challenge Georgia’s legislative maps, while one lawsuit challenges the state’s congressional map. Another lawsuit challenges both the state’s legislative maps and congressional maps. Lastly, an ongoing lawsuit challenges the at-large system used to elect members to the state’s Public Service Commission.
Date filed: Dec. 30, 2021
Plaintiffs: Alpha Phi Alpha Fraternity, Sixth District of the African Methodist Episcopal Church and Georgia voters
Argument: The plaintiffs argue that the state’s legislative districts drawn with 2020 census data dilute the voting strength of Black Georgians in violation of Section 2 of the VRA.
Status: The court declined to block the new legislative maps, which meant that they were in place for the 2022 election cycle. Litigation that may affect the maps for the 2024 election cycle is ongoing.
Date filed: Jan. 11, 2022
Plaintiffs: Black voters in Georgia
Argument: The plaintiffs allege that Legislature diluted Black voting strength across state House and Senate districts in violation of Section 2 of the VRA.
Status: The court declined to block the new legislative maps, meaning they remained in place for the 2022 election cycle. Litigation that could affect the maps for the 2024 election cycle is ongoing.
Date filed: Dec. 30, 2021
Plaintiffs: Black voters in Georgia
Argument: The plaintiffs argue that the congressional map drawn with 2020 census data violates Section 2 of the VRA because it dilutes the voting strength of Georgians of color, particularly Black Georgians, and denies these voters an equal chance to participate in the political process.
Status: The court declined to temporarily block the new congressional map, which means that it was in place for the 2022 election cycle. Litigation that could affect the map for the 2024 election cycle is ongoing.
Date filed: Dec. 30, 2021
Plaintiffs: Georgia State Conference of the NAACP, Georgia Coalition for the People’s Agenda and Galeo Latino Community Development Fund
Argument: The plaintiffs argue that the new state House, Senate and congressional maps are racial gerrymanders that violate the 14th Amendment and racially diluted maps that violate Section 2 of the VRA.
Status: Litigation that could impact the status of the maps for the 2024 election cycle is ongoing.
Date filed: July 13, 2020
Plaintiffs: Black voters registered in Fulton County, Georgia
Argument: The plaintiffs argue that the at-large method — whereby voters elect a commissioner to represent the entire state as opposed to a specific district — used to elect members of the Public Service Commission (which is responsible for regulating public utilities in Georgia) violates Section 2 of the VRA by diluting Black voting power.
Status: On Aug. 5, 2022, a federal judge held that the commission’s statewide elections did in fact dilute Black voting power in violation of the VRA and, as a result, elections for the commission were not held during the November 2022 midterm elections. An appeal is pending before the 11th U.S. Circuit Court of Appeals.
Kansas
One lawsuit challenging local districts in Dodge City, Kansas involving Section 2 claims is ongoing.
Date filed: Dec. 15, 2022
Plaintiffs: Three Latino voters in Dodge City, Kansas
Argument: The plaintiffs allege that the at-large election system used for electing members to the Dodge City Commission dilutes Latino voting power and denies Latino voters of the opportunity to elect a candidate of their choice in violation of Section 2 of the VRA and the 14th Amendment of the U.S. Constitution.
Status: On April 18, 2023, a federal district judge allowed the plaintiffs’ Section 2 and 14th Amendment claims to move forward. Notably, the judge wholly rejected the defendants’ novel legal argument that there is no private right of action under Section 2, which, if adopted, would mean that only the U.S. Department of Justice — and not private individuals and organizations — can bring Section 2 lawsuits. The defendants appealed this decision to the 10th U.S. Circuit Court of Appeals. Litigation is ongoing.
Louisiana
Three lawsuits brought under Section 2 are currently ongoing in Louisiana. One consolidated lawsuit challenges Louisiana’s congressional map. One lawsuit challenges the state’s legislative maps and one challenges the system used to elect members to the Louisiana Supreme Court.
Date filed: March 14, 2022
Plaintiffs: Black voters, the Louisiana State Conference of the NAACP and Black Voters Matter Capacity Building Institute
Argument: The plaintiffs allege that the new legislative districts violate Section 2 of the VRA by diluting the voting strength of Black Louisiana voters, the result of “packing” Black voters into certain districts and “cracking” them among other districts to dilute their voting power.
Status: On Aug. 30, 2022, the court paused proceedings pending a decision in Allen. Thus, the outcome of Allen will directly inform the court’s decision in this case. With the Supreme Court’s decision in Allen, litigation will continue in an effort to ensure that Black voters in Louisiana can elect their candidates of choice.
Date filed: March 30, 2022
Plaintiffs: Voters and civil rights groups
Argument: This case was consolidated with one other. The plaintiffs argue that by failing to include a second minority opportunity district, the congressional map drawn with 2020 census data dilutes the voting strength of Black residents in violation of Section 2 of the VRA.
Status: On June 6, 2022, a federal judge issued a preliminary injunction blocking the congressional map for the 2022 election cycle, which the defendants immediately appealed. The 5th U.S. Circuit Court of Appeals declined to pause the court’s order so the state asked the U.S. Supreme Court to pause the district court’s decision blocking the map. In a 6-3 order, the Supreme Court reinstated the previously blocked congressional map and the Court’s conservative justices also agreed to review the case before the 5th Circuit issued a decision. The case was then paused pending a decision in Allen.
Date filed: Sept. 19, 1986
Plaintiffs: Black voters in Louisiana
Argument: Lawsuit filed in federal court in 1986 by Black voters in Louisiana against the Louisiana governor, secretary of state and commissioner of elections. The original complaint alleged that the method used to elect the seven justices of the Louisiana Supreme Court violated Section 2 of the VRA. In 1992, the parties entered into a consent decree (an agreement) to ensure Louisiana’s state Supreme Court elections did not violate Section 2.
Status: In 2021, the state moved to dissolve the consent decree, but in May 2022, a district court declined to dissolve the agreement after finding that the consent decree was still necessary “to ensure compliance with Section 2 of the Voting Rights Act.” The state appealed this decision to the 5th U.S. Circuit Court of Appeals, which held oral argument on March 6, 2023. Litigation is ongoing.
Michigan
One lawsuit challenging Michigan’s legislative maps is ongoing.
Date filed: March 23, 2022
Plaintiffs: Black voters in Michigan
Argument: The plaintiffs argue that Michigan’s state House and Senate maps drawn by the Michigan Independent Citizens Redistricting Commission with 2020 census data violate Section 2 of the VRA because they deprive Black voters of an adequate number of districts in the Detroit area where they can elect candidates of their choice. The plaintiffs also contend that by intentionally lowering the percentage of Black voters in these districts without a justified interest, the commission used race as the predominant factor in drawing legislative districts and therefore the maps are racial gerrymanders in violation of the 14th Amendment. The lawsuit asks the court to block the current maps and order the creation of new maps.
Status: Litigation is ongoing before the trial court and the challenged maps currently remain in place. A hearing is set to take place before the trial court on July 13, 2023.
Mississippi
Two lawsuits involving Section 2 are ongoing in Mississippi: One challenges the state’s legislative maps and the other challenges the method for electing justices to the state Supreme Court.
Date filed: Dec. 20, 2022
Plaintiffs: Mississippi State Conference of the NAACP, four of its members and a Black voter
Argument: The plaintiffs allege that Mississippi’s state Senate and House redistricting maps drawn with 2020 census data violate Section 2 of the VRA by unlawfully diluting the voting strength of Black Mississippians and denying them the opportunity to elect candidates of their choice.
Status: Litigation is ongoing before the trial court and the challenged maps currently remain in place.
Date filed: April 25, 2022
Plaintiffs: Black Mississippians
Argument: The at-large districts used for electing justices to Mississippi’s nine-member state Supreme Court dilute the voting strength of Black Mississippians in violation of Section 2 of the VRA.
Status: Litigation is ongoing in the district court and a trial is scheduled for May 2024.
North Dakota
One lawsuit involving Section 2 claims is ongoing in North Dakota. It challenges the state’s legislative maps.
Date filed: Feb. 7, 2022
Plaintiffs: The Turtle Mountain Band of Chippewa Indians, Spirit Lake Tribe and individual Native American voters
Argument: The plaintiffs argue that North Dakota’s new legislative districts drawn with 2020 census data dilute the voting strength of Native Americans in the state in violation of Section 2 of the VRA.
Status: A trial was held in June 2023 and a decision is pending.
Texas
Two lawsuits that bring Section 2 claims are ongoing in Texas: One challenges the state’s congressional map and the other challenges the redistricting plan for Galveston County, Texas’ Commissioners Court.
Date filed: Oct. 18, 2021
Plaintiffs: League of United Latin American Citizens, U.S. Department of Justice, Fair Maps Texas, NAACP, Mexican American Legislative Caucus, Voto Latino and others
Argument: This case was consolidated with seven others. Collectively, the plaintiffs argue that the new district maps for Congress, the state House, the state Senate and board of education violate Section 2 of the VRA and the U.S. Constitution’s 14th and 15th Amendments. Specifically, the plaintiffs claim the maps were drawn to intentionally discriminate on the basis of race and dilute the voting strength of minorities.
Status: Litigation is ongoing in the district court and a trial has not yet been scheduled.
Date filed: Feb. 15, 2022
Plaintiffs: Galveston County voters, Department of Justice and NAACP
Argument: This case was consolidated with two others. The plaintiffs collectively argue that the new district lines for Galveston County’s Commissioners Court precincts are racially gerrymandered, cracking Black and Latino voters across the four districts in violation of the U.S. Constitution’s 14th and 15th Amendments. They also argue the map violates Section 2 of the VRA.
Status: Litigation is ongoing in the district court.
Washington
One Section 2 lawsuit challenging Washington’s legislative districts is ongoing.
Date filed: Jan. 19, 2022
Plaintiffs: Latino voters in Washington and a nonprofit organization
Argument: The plaintiffs allege that Washington’s legislative districts drawn with 2020 census data intentionally “crack” Latino Voters into several districts in the Yakima Valley region to dilute their voting strength in violation of Section 2 of the VRA.
Status: The court declined to block the map while litigation continues, which means that the challenged legislative map remained in place for the 2022 elections. Litigation that could affect the map for the 2024 election cycle is ongoing. A trial was held in June 2023.
With the U.S. Supreme Court’s decision in Allen leaving Section 2 intact as a bulwark against racially discriminatory maps and an integral tool in fighting racial vote dilution, over 30 Section 2 redistricting lawsuits across 10 different states will proceed.