Three Takeaways: Merrill v. Milligan Oral Arguments

A typewriter with the appellant brief to the U.S. Supreme Court in Merrill v. Milligan, surrounded by snippets of the brief on a red background.

On Tuesday, Oct. 4, the second day of the U.S. Supreme Court’s new term, the nine justices heard oral arguments in Merrill v. Milligan. The case centers on whether Alabama violated Section 2 of the Voting Rights Act (VRA) when it enacted a congressional map that created one rather than two majority-Black districts. Learn more about how the case landed before the nation’s highest court and what both sides are arguing here.

Though scheduled for one hour, the oral arguments took close to two hours on Tuesday morning. Here are several takeaways.

The fact that SCOTUS even heard this case is significant.

In January, a three-judge panel, including two judges nominated by former President Donald Trump, found that Alabama’s congressional map likely violated Section 2 of the VRA. While Black residents compose over 27% of Alabama’s population, they can only elect their candidate of choice in one of the state’s seven congressional districts.

During oral arguments, Justice Elena Kagan said: “Under our precedent it’s kind of a slam dunk. [I]f you just take our existing precedent…this is an easy case. It’s not one of the hard ones.” This comment echoes what former U.S. Attorney General Eric Holder said last week during our Twitter Spaces. “This is a straightforward case,” Holder commented. “This is an easy case. If [the Supreme Court] was grounded in the real world, this would be [a case] that would not take a huge amount of time…This is a textbook example of what the Voting Rights Act of 1965 was designed to prevent.” 

In fact, just eight months ago, when the Court paused the lower court’s order, Chief Justice John Roberts dissented alongside the liberals: “[I]n my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” 

For the past 40 years, courts have relied on a test established in a 1986 case, Thornburg v. Gingles, to prove a pattern of racial vote dilution: (1) The minority group in question must be “sufficiently large and geographically compact” to constitute a political district; (2) the minority group must be “politically cohesive,” meaning the group generally votes for similar candidates and (3) the majority group must also be “politically cohesive” and vote to defeat the preferred candidates of the minority group. The court then considers the totality of the local circumstances to determine if the map denies the minority group an equal opportunity to participate in the political process. The fact that the Supreme Court decided to hear this case to begin with — a case that Roberts agreed was properly decided by existing law — is a foreboding warning sign. 

1. Several justices focused on the use of computer simulations and algorithms. 

Throughout the oral arguments, participants raised the proper role of “computer simulations” and “algorithms” in the Gingles test. During the seven-day hearing held in January, an expert witness for the Milligan plaintiffs testified about a paper that she had written about the results of a computer simulation that drew two million maps. According to Alabama, her analysis demonstrated that without considering race, none of the simulated maps created a second majority-Black district. This evidence was raised for claims that were not before the Supreme Court today. 

Nonetheless, both the state of Alabama — and several justices, including Justice Samuel Alito — latched onto this detail. In fact, among the 92 total times the justices spoke during today’s arguments, 30 brought up simulations in some way.

For her part, Justice Ketanji Brown Jackson forced Alabama to clarify its position on why simulations were relevant in this case: “Are you asking us to reconsider what is happening with Gingles to require that challengers compare their original map at Step 1 with a race-blind algorithm?” (The first Gingles step is to show that a minority group is “sufficiently large and geographically compact” to elect a candidate of its choice in a district.) While not essential, Alabama’s counsel argued that simulations were “helpful and illuminating,” because “[t]hey show that this is what you would expect a race-neutral map drawer to produce.” Neither Jackson nor Roberts seemed convinced that using simulations in this manner was appropriate because vote dilution claims hinge on discriminatory results, not intent. 

It’s unclear how this concept of simulations will ultimately play into the Court’s decision. However, if the majority requires a randomly-drawn race-blind plan (as opposed to a “reasonably configured” districting plan) to satisfy the first Gingles factor, the efficacy of Section 2 — which is designed ensure that minority voters are not being harmed by laws or maps — would be altered and undermined. 

2. The liberal justices appeared to agree with the Milligan parties that race neutrality is not required, nor logical, for applications of Section 2.

The idea of race neutrality was a common theme and undergirded the approach to redistricting that the state of Alabama wants the Court to adopt. Considering that the VRA was designed to remedy racial discrimination, the Milligan parties and the U.S. solicitor general reiterated that Section 2 requires at least an awareness of race. The solicitor general, arguing on behalf of the United States, explained why “it would be so unworkable in practice to try to inject this idea of race neutrality” given the whole purpose of the first Gingles factor requires plaintiffs to show that they can create a reasonable majority-minority district. “If they have to do that without taking any account of race, then they effectively have to kind of stumble into the district by accident,” she concluded.

Jackson appeared to agree: “When I read Section 2, I don’t see that Congress is requiring race neutrality…It seems as though Congress is authorizing the consideration of race.” Earlier on, Jackson had given the Court a history lesson on the Reconstruction amendments, which were enacted purposely with race in mind.

Additionally, multiple justices noted that the other redistricting principles that Alabama wants to elevate aren’t necessarily race neutral themselves. In reference to core retention, a principle that promotes preserving districts as they were drawn in previous decades, Jackson stated: “We’re talking about a situation in which race has already infused the voting system. So can you help me understand why you think that the world of, you know, race-blind redistricting is really the starting point in this situation?” In regards to communities of interest, another redistricting principle that stipulates keeping geographic areas with common policy concerns in a shared district, Justice Sonia Sotomayor asked the Alabama lawyer why the state will not divide largely white communities of interest — like the Gulf Coast — but will easily split the Black Belt, a region that stretches across the state that is named for its fertile soil and home to a large portion of the state’s Black population. 

3. There are a number of ways the Court could undermine the VRA.

Despite the back and forth at the Court, there are a number of ways the Court could undermine the VRA short of declaring Section 2 of the VRA unconstitutional. 

Perhaps most troubling, Justice Brett Kavanaugh seemed fixated on the concept of compactness and other elements of how a district is configured. In law professor Rick Pildes’ analysis of the arguments, he asserted that an opinion focused largely on the factual issues of “whether a proposed VRA district is reasonably configured” would likely be “the narrowest grounds” on which the Court might decide to overturn the lower court decision. But, the effects could still be devastating, providing a roadmap for states to undermine the VRA’s provisions that ensure fair representation for minority voters. As Kagan said, “Justice Alito gave the game away when he said race-neutral means don’t look at community of interest because it’s a proxy for race. Regrettably, that is what it is.”

Kagan also pointed to the diminishing precedent of the VRA, which she called “one of the great achievements of American democracy.” In Shelby County v. Holder (2013), where the Court gutted Section 4 and 5 of the VRA, the Court pointed to the continuation and strength of Section 2. In Brnovich v. Democratic National Committee (2021), which further weakened the results test of Section 2, its application was nonetheless affirmed. She concluded, calling out Alabama’s lawyer’s request: “You’re asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on. So what’s left?”