Section 2 of the VRA Could Be Next on SCOTUS’ Chopping Block

"CASE WATCH Merrill et al. v. Milligan et al." and other case-specific text, including the file number and court name, with a blue-tinted gavel.

Section 2 of the Voting Rights Act (VRA) — the most litigated provision of the VRA — currently prohibits any law that has the intent or effect of denying or abridging the right to vote “on account of race or color.” Since the VRA was enacted in 1965, Section 2 (which you may also see written as “§2”) has been used in redistricting litigation to strike down maps that dilute the voting strength of minority voters by “packing” and “cracking” them across districts to prevent a particular minority group from electing its preferred candidates, even when the minority group represents a significant portion of the state’s voting population. 

Now, there is a case before the U.S. Supreme Court that could change the future application of Section 2 as we know it. In Merrill v. Milligan, which was consolidated with Merrill v. Caster, a related case that originated out of Alabama, the state is urging the Supreme Court to adopt a “race-neutral” approach to redistricting that would effectively eliminate the power behind Section 2. The nation’s highest court will hear oral arguments on Tuesday, Oct. 4 at 10 a.m. EDT. How did we get to this point and what’s at stake?

Before we jump into the details, you can read more about how we got to this point.

Who is involved in the case?

Alabama Secretary of State John Merrill (R) and the chairs of the Alabama Legislature’s Redistricting Committee — State Sen. Jim McClendon (R) and State Rep. Chris Pringle (R) — are the individuals who asked the Supreme Court to review the lower court’s decision. Due to the lawsuit’s complicated background, this party is referred to as both the appellant and petitioner. To avoid confusion, we’ll use “Alabama” throughout this piece to refer to the side that wants to maintain the current congressional map with only one majority-Black district.

There are two sets of parties that filed the initial lawsuits challenging Alabama’s congressional map and want the lower court’s block on the map to be upheld. The Milligan appellees consist of Alabama voters, Greater Birmingham Ministries and the Alabama State Conference of the NAACP. The Caster respondents consist of Alabama voters. We’ll use “Milligan parties” to refer to both groups as the side that wants the Supreme Court to uphold the lower court’s order blocking Alabama’s congressional map.

How did we get here?

In the fall of 2021, Alabama enacted a new congressional map based on 2020 census data that maintained a single majority-Black district out of seven total districts. On Jan. 24, 2022, a lower court blocked the map after finding it diluted the voting strength of Black Alabamians. 

There are two main reasons why the lower court struck down the map. First, the lower court held that the Milligan parties established the three Gingles factors outlined by the Supreme Court in 1986 that prove a pattern of racial vote dilution: 1) the minority group in question must be “sufficiently large and geographically compact” to elect a candidate of its choice; 2) the minority group must be politically cohesive (meaning they typically vote in a similar manner) and 3) the majority group must be politically cohesive enough to defeat the minority group’s preferred candidate(s). 

Second, the lower court looked at the “totality of the circumstances” to determine if voting was equally open to all Alabama residents. Applying the list of so-called “Senate factors,” which are based on the legislative history around Section 2, the lower court concluded that “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress” given the state’s past and present racial discrimination. 

Due to these findings, the lower court blocked Alabama’s congressional map and ordered the Alabama Legislature to adopt a new map that included two majority-Black districts. This would have been the first time Alabama had two majority-Black congressional districts.

Instead of complying with this ruling, however, the state accelerated the case to the U.S. Supreme Court via its shadow docket. On Feb. 7, a majority of the Court delivered an unsigned, unexplained order pausing the lower court’s decision and reinstating the previously blocked congressional map with only one majority-Black district for the 2022 elections. The Court then added the case to its merits docket, placing Section 2 in the spotlight for the 2022 term, which begins on Monday, Oct. 3.

What is each side arguing before the U.S. Supreme Court?

The question presented (in non-SCOTUS lingo, this means what the Supreme Court is deciding) is: Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act, 52 U.S.C. §10301.21.


First, Alabama’s answer to the question presented is no, the state’s congressional map does not violate Section 2 of the VRA. Even though Section 2 was designed specifically to look at race-based factors to ensure that minority voters are not being harmed by laws or maps, Alabama argues that the only way a plaintiff can prove a Section 2 violation is to start with a race-neutral map and prove that the “enacted plan deviates from neutrally drawn plans on account of race.” This proffered framework would mean that a plaintiff has to prove that racial discrimination motivated the configuration of district lines, essentially instituting an intent-only test while eliminating the results test currently provided by Section 2. Using this formula, the state argues that its map is “equally open” to all of its residents because it was drawn in a race-neutral manner. The resulting race-neutral outcome with “only one majority-black district simply reflects where Alabamians reside and the State’s race-neutral districting principles, not invidious discrimination,” according to the state of Alabama.

Alabama further suggests that courts across the country have misapplied the Gingles factors. Even though Alabama retorts that “[n]o one has asked ‘the Court to rewrite the Gingles framework,’” the state’s briefing clearly argues that “[r]ace cannot predominate from step one in the Gingles analysis” — even though, as it currently stands, the first Gingles factor requires looking specifically at race to show that minority voters are geographically compact.

Alabama reiterates throughout its briefing that the “maximization of majority-minority districts is not what §2 requires. Just because a majority-minority district can be drawn does not mean it must be drawn.” The state attacks the idea that, because Alabama’s population is 27% Black, its congressional map should be proportional to this population breakdown, arguing that “disparate effects or lack of proportionality alone cannot be actionable discrimination.” Alabama scoffs at the idea that the VRA imposes an “affirmative obligation” on states to draw majority-minority districts, especially if it means a potential “sacrifice [of] race-neutral redistricting criteria.”

Following this race-neutral line of reasoning, Alabama asserts that its congressional map complies with the VRA because map drawers did not prioritize race when deciding district lines. But, the state doesn’t stop there. 

Alabama offers the Supreme Court another path forward: If the Court doesn’t want to adopt a race-neutral benchmark for proving Section 2 vote dilution claims, then it could rule that the provision is unconstitutional as applied to single-member districts (which include congressional and legislative districts). If the lower court’s application of Section 2 that relies on race is correct, the state argues, it violates the 15th Amendment by “[r]acially segregating Alabama’s congressional districts.” Going even further, Alabama suggests that the lower court’s interpretation of Section 2 violates the 14th Amendment by relying on “race-based redistricting” and negating the “Equal Protection Clause’s guarantee that all citizens will be free from invidious discrimination.” If the Court were to adopt the view that Section 2 conflicts with the 14th and 15th Amendments and therefore must be nullified, then Section 2 could not be used in redistricting litigation to raise racial vote dilution claims related to single-member districts.

Milligan parties

An important note: The Milligan and Caster parties filed separate briefs in the Supreme Court that raise similar but still distinct arguments given their positions in the lower court. We talk collectively below about arguments raised by the Milligan parties for ease of understanding, but each quote is linked directly to the corresponding brief.

The Milligan parties’ answer to the question presented, which is also the position supported by the U.S. solicitor general representing the United States, is yes, Alabama’s congressional map does violate Section 2 of the VRA by diluting the voting strength of Black Alabamians. The parties point to the lower court’s robust findings of fact in support of blocking the map, including that all three Gingles factors were met and the totality of circumstances showed that Black voters have fewer opportunities to elect the candidates of their choice under the adopted map. The Milligan parties suggest that, because Alabama lacks “any basis to challenge the court’s factual findings or legal conclusions under existing law, [it] seek[s] to rewrite the statute and overturn decades of settled precedent.” 

The Milligan parties break down Alabama’s other arguments step by step. First, they push back against the idea that Section 2 claims require a race-neutral benchmark and a showing of intentional racial discrimination to be successful. They note that the Supreme Court’s “precedents already prevent undue consideration of race in redistricting, precluding § 2 liability based on a state’s mere failure to maximize the number of majority-minority districts” and that Section 2 is narrowly tailored “to require a remedy only where Black voters are denied an equal opportunity to elect candidates of choice, and where a remedy is possible that comports with traditional redistricting principles.” 

Instead of accepting the current Section 2 framework, “Alabama instead asks this Court to drastically upend §2 precedent,” the Milligan parties suggest. Adopting a race-neutral benchmark and being required to prove that intentional racial discrimination motivated a law “contradicts §2’s text, decades of settled precedent, and Congress’s express purpose,” in their view. The Milligan parties point out that “adopting a purportedly ‘race-neutral’ redistricting baseline would serve only to submerge long-oppressed minority groups into districts where they are consistently outvoted by the very majorities that have discriminated against them for centuries.”

Because Section 2 is narrowly tailored, the Milligan parties also highlight the fact that it does not require proportional representation, as Alabama asserts. They push back against Alabama’s proportionality argument, suggesting that it “grossly mischaracterizes the decisions below, asserting that the courts found a §2 violation because [the map] lacks proportionality—when the courts disclaimed any such approach—and suggesting that the courts’ liability determination hinged on Plaintiffs’ satisfaction of the first [Gingles factor] alone—when that conclusion was instead based on all three preconditions and the totality of circumstances together.”

Finally, the Milligan parties reject Alabama’s argument that any consideration of race under Section 2 is unconstitutional. Suggesting that Alabama “overstates the limited consideration of race that §2 requires states to undertake and misunderstands the Court’s racial-gerrymandering precedent,” the Milligan parties point out that the lower court found that illustrative plans with two majority-Black districts offered by the Milligan parties complied “with traditional redistricting principles [and] demonstrated that race was not the predominant factor.” Even further, they highlight that the lower court “explained that the limited racial considerations used to draw an illustrative plan under Gingles do not equate to racial predominance.” The Milligan parties also point out that, because the 14th Amendment’s Equal Protection Clause only applies to state action — and the state wasn’t obligated to adopt any of the suggested maps with two majority-Black districts put forth by the Milligan parties — the argument that the Milligan parties unduly considered race doesn’t apply to them as private plaintiffs. Plus, the Milligan parties reiterate that “[r]ace will always be ‘a factor’ when plaintiffs are tasked with demonstrating that a particular minority group is sizeable and compact enough to warrant §2 protection” — but this very limited use of race to prove that a state needs additional majority-minority districts to ensure minority voters have an equal opportunity to elect the candidates of their choice does not equate to racial discrimination in violation of the U.S. Constitution.

Amicus briefs

Earlier this summer, a total of 36 amicus (“friend of the court”) briefs were submitted to the Supreme Court — 13 in support of the state of Alabama, 22 in support of the Milligan parties and one in support of neither party. These briefs clue us into what’s at stake and, importantly, who’s on what side.

What’s at stake?

If Alabama Republicans get their way, map drawers and courts would be required to take a race-blind approach to redistricting, ignoring the fact that Section 2 was designed specifically to look at race-based factors to ensure that minority voters are not being harmed by laws or maps. Adopting an intent-only test while eliminating a results test threatens Section 2’s usability in future litigation, according to the Milligan parties, “effectively immunizing discriminatory redistricting plans from §2 liability by allowing states to explain away discriminatory schemes with purportedly ‘race-neutral’ justifications.” The Milligan parties also point out that, “because redistricting requires countless tradeoffs, a state will almost always be able to identify some neutral explanation for even the most discriminatory plans.”

This interpretation of Section 2 would cause very tangible harm to minority voters, particularly Black voters in southern states, such as Georgia and Louisiana, with sordid histories of racial discrimination. The ability to both create and protect majority-Black districts would be lost, allowing states “to knowingly submerge minority groups into districts in which they have no opportunity to elect their preferred candidates.”

Under the Republicans’ preferred solution, Section 2’s protections against minority vote dilution would be nullified. If the Court adopts this view of the provision, it can avoid striking down Section 2 outright while utterly destroying its protections, rendering it effectively useless in protecting minority voters from discriminatory maps.

What’s next?

After nearly a year of rapid-fire litigation, the fight over Alabama’s congressional map has culminated in a battle over the future application of Section 2 itself. Oral arguments before the nation’s highest court will take place on Tuesday, Oct. 4 at 10 a.m. EDT. During the hearing, Alabama will receive 35 minutes in total for its arguments; the Milligan appellees will receive 10 minutes; the Caster respondents will receive 10 minutes and the U.S. solicitor general representing the United States will receive 15 minutes (the solicitor general is often granted permission to participate in oral arguments when the United States has a vested interest in upholding federal laws, even when it’s not a party to the lawsuit).

You can listen to a live stream of the oral arguments here and follow Democracy Docket’s live coverage here.

Tuesday, oct. 4 at 10 a.m. edt U.S. Supreme Court Hears Arguments in Merrill v. Milligan