What Happened During the U.S. Supreme Court Arguments in Merrill v. Milligan
On Tuesday, Oct. 4, the U.S. Supreme Court heard oral arguments in Merrill v. Milligan, a case on whether Alabama’s recently enacted congressional map violates Section 2 of the Voting Rights Act (VRA). You can find a recording of the arguments here and find the live play-by-play below.
Tuesday, Oct. 4, 2022
Last updated: 12:12 p.m.
- Oral arguments end.
- The Alabama lawyer: “The purpose of the Voting Rights Act is to prevent discrimination and to foster our transformation to a society that is no longer fixated on race, but [the Milligan appellees and Caster respondents] would transform that statute into one that requires racial discrimination in districting and carries us further from the goal of a political system in which race no longer matters. Neither the text nor purpose of the Act supports that vulcanizing approach, and the Constitution forbids it.”
- Roberts brings the Alabama lawyer back to respond.
- But, the SG emphasized how important that point is, because this is a statutory interpretation case. “This Court has emphasized that stare decisis considerations have their greatest force here. And it’s the Voting Rights Act. It’s not an area where the Court’s decisions have flown under the radar or escaped notice. Congress has not hesitated to step in and alter the statute when it’s been dissatisfied with this Court’s interpretation. That was the whole point of the 1982 amendments.” Stare decisis is the legal principle of deciding cases in accordance with prior decisions and precedent.
- Kavanaugh asks about congressional proposals to alter the Gingles factors. The SG responds, “I’m not aware of any current proposals in Congress to do that.”
- Kagan: “Do you understand why Alabama should be satisfied with this idea of if you can just produce one race-neutral map?” The SG: “I think this is exactly the undertheorized aspect of Alabama’s approach here because they don’t try to answer any of those questions either about how you operationalize the standard and agree upon how to program the algorithm to take account of all of the complex constellation of redistricting criteria, or how you interpret the results along the lines…I think that that just demonstrates that this is an incredibly untested form of evidence. It’s never been required in Section 2 litigation. And I think trying to insert this as an insuperable requirement in Gingles step one would cause all kinds of complicated litigation and battles of the experts about how to even interpret and run those types of simulations.”
- Alito returns to the simulations: “If a computer program can produce this district only by making the creation of that district [with race] and subordinating everything else isn’t that the very definition of predominance?” The SG responds that the Court has “never suggested that simply because you intentionally create a majority-minority district, that automatically means in every case that race predominated.” Jackson jumps into the exchange, adding that there is “not a subordination of the other districting criteria” just because there is an awareness of race in Gingles 1.
- The SG clarifies her position on why it is unnecessary to incorporate race neutrality into the first Gingles factor. “The state is wrongly equating any use of race in the redistricting process with an unconstitutional action. And that ignores the careful lines this Court has drawn in the Shaw line of cases to make clear that it’s only once race predominates, when it’s the overriding and dominant rationale, that the state has to justify its map under strict scrutiny.”
- Kavanaugh asks what factors should be involved in the “compactness” inquiry. The SG points to the fact-finding inquiry conducted by the district court. “I think it is certainly the case that it’s an inherently factual question, and it requires, as this Court has said, an intensely local appraisal of all the facts and circumstances in the jurisdiction,” the SG added. “These districts, as [the Caster lawyer] said, performed as well or better than the enacted plan on nearly all of the relevant criteria. And that’s, of course, something this Court has recognized is reviewable only for clear error.”
- Alito: “Where can the state win once it gets past…the first Gingles condition?” The SG pushes back: “I think the state can win on any other of the relevant factors in the totality of the circumstances. And I want to resist strongly this idea that any time plaintiffs have been able to satisfy that first Gingles precondition, they automatically prove their case. This is a rigorous burden on plaintiffs. Of course, they have to show the patterns of racially polarized voting in the second and third preconditions, and courts then go on to look at all of the relevant circumstances in the totality analysis.”
- Roberts: “If the race neutral simulations are as bad as you say, why do you say they should be taken into account at the totality of the circumstances inquiry?” SG responds, “I do think that it would be an incredibly complicated obstacle to try to litigate these cases if it were necessary at Gingles step 1 for the plaintiffs to duke it out among their experts and debate about all of the things to feed into the algorithm.”
- After explaining that this is a case with a straightforward application of Section 2, the SG says, “For that reason, Alabama isn’t asking the Court to apply Section 2 as it’s been applied for the past 40 years. Instead, Alabama is asking the Court to radically change the law by inserting this concept of race neutrality and effectively limiting Section 2 to intentional discrimination. That approach would delete the text that Congress added in 1982 to cover results. It disregards nearly four decades of this Court’s precedent, and it would have drastic real-world consequences.”
- U.S. Solicitor General Elizabeth Prelogar (SG) begins her opening statement. “The history and effects of racial discrimination in the state are severe. Black voters are significantly underrepresented.”
- Jackson: “I actually think the question is, why should we require at Gingles Step 1, that a map be drawn in the race-neutral way?…Why should we do this? Because the [U.S.] Constitution requires some sort of race neutrality?” The Caster lawyer responds: “Fundamentally, there’s no basis…for injecting this new simulation standard or race-neutral standard into Gingles 1. It was not the purpose of the Section 2 standard that’s created by Congress. It is not at all required under the Constitution. It would be a brand-new principle that really doesn’t serve any end.”
- Barrett: “I just want to return to the questions about the computer simulators…Why, if there’s no limit to the number of maps you can generate and the different factors you can weigh so long as race isn’t one, why would that be an unreasonable burden for a plaintiff to shoulder?” The Caster lawyer: “If you’re all of a sudden going to infuse what was supposed to be an objective and administrable test at the outset with this highly specific and highly technical requirement, that would essentially be delegating VRA enforcement.”
- Sotomayor: “The problem you can’t do is keep…the historically core districts because that’s infused with the racial inequality, correct?” The Caster lawyer responds, “Yes, the problem with the core preservation…And as a policy matter, this goes precisely to why Congress adopted a results test in 1982 to begin with, which was so that we, the states, could not utilize old ways of doing things and entrench discriminatory schemes just by perpetuating them over the course.”
- Sotomayor: “But the point that [Alito] is making Section 2 turn on its head, doesn’t it, because there’s no such thing as racial neutrality in Section 2. It’s explicitly saying that a protected group must be given equal participation, correct?”
- The Caster lawyer responds again to Alito’s direction back to the simulations: “The simulations actually generate more questions than they answer. Even if you were to charge it with taking into account race-neutral criteria, there is a lot of subjectivity…so even inputting those criteria into a computer algorithm requires coming up with some bright-line rules that don’t currently exist.”
- Alito: “What are the results when you do a computer simulation that takes into account all race-neutral districting factors that have been accepted by this Court? And the result is not the intent. This is a computer. It doesn’t have any intent. The result is that you don’t get the second majority-minority district.”
- Jackson emphasizes the importance of results rather than intent in proving racial vote dilution. “It’s irrelevant at Gingles step 1.”
- The Caster lawyer responds to Alito’s question: “As long as plaintiffs are able to show, to meet that basic demographic threshold question…I think turning Gingles 1 into its own trial within a trial, making it a battle of the simulations expert would be entirely contrary to what this Court intended in Bartlett.”
- Alito: “If you can’t get that map with a computer simulation that takes into account all of the traditional race-neutral districting factors that’s…what I don’t get. I can’t understand. How that can be reasonably configured?”
- Alito asks, once again, about the distinction between compactness and configuration, specifically what is expected by Gingles condition one. The Caster lawyer responds, “I believe the first Gingles factor takes into account a variety of traditional districting criteria…just as the district court mentioned below. And here on those — almost every single metric, the illustrative plans meet or beat the enacted plan. Whether or not some hypothetical simulations, many of which are not even in the record, may or may not have come up with that exact configuration doesn’t answer the question that plaintiffs are tasked with, which is, is it possible? We came into court and showed yes, it is possible based on the demography of Alabama.”
- The Caster lawyer responds: “First of all, when a lot of these districts were drawn pursuant to the Voting Rights Act, including in Alabama itself, 1992 was a Court-ordered plan…So these districts were not necessarily drawn in this idea that they had to be race-blind or race-neutral. They were solving a problem of racial discrimination that they were looking at race in order to solve that problem. They were not necessarily drawn in a race-neutral way.”
- Kagan asks whether there is good evidence that if Alabama’s “race-neutral” approach was adopted, it would lead to a very substantial decrease in majority-minority districts.
- The Caster lawyer begins her opening statement. “Alabama seeks to upend the Section 2 standard that has governed redistricting for nearly 40 years.”
- Jackson confirms that, if there ceased to be racial polarization and stratification and instead people “spread out and live among one another” and don’t vote along racial lines, “then we wouldn’t have a Section 2 violation, is that correct?” The Milligan lawyer responds: “That’s exactly correct.”
- Barrett: “If we interpret Gingles Step 1 as you propose, is the result of the test to say that a state must maximize so long as it can do so in reasonably compact districts?” The Milligan lawyer quickly rejects this: “Not at all, Your Honor. This Court has recognized for 30 years that maximization is not necessary. And just because you can draw an additional district doesn’t mean that you would satisfy any of the other traditional…any of the other racial polarization, a totality of the circumstances, and that’s why this Court in De Grandy added in proportionality as a part of the totality so that it prevented maximization for being a goal of Section 2.”
- The Milligan lawyer responds to Kavanaugh’s question: “I think the district court’s findings…made clear that [the Milligan appellees’] plans met or beat Alabama on the compactness requirement.”
- Kavanaugh: “The other side says that the proposed districts are not reasonably compact, and, as I was mentioning, I think compactness is the key under our precedents to interpreting Section 2…I just want to get your response to that because I think that’s the critical point.”
- Alito and the Milligan lawyer go back and forth about compactness and whether Gingles requires “maximization” of districts. The Milligan lawyer responds: “I don’t think that Section 2 of the Voting Rights Act at all requires maximization…so we’re not in any way suggesting that…What plaintiffs are really looking for is not any sort of guarantee of a second majority-minority district.” The Milligan lawyer suggests that he would be satisfied with a plan where Black voters are given “at least a fair chance, not even a guaranteed chance to elect their candidates of choice in the second district.”
- The Milligan lawyer responds that Section 2 is about intent, not results. “And so…with respect to the biases of a mapmaker, I’m not sure if that’s relevant. But I will say, as this Court has acknowledged, that Gingles 1 does take into consideration compliance with traditional redistricting criteria.”
- Alito asks about the first Gingles factor, which requires that a minority group must be “sufficiently large and compact” to constitute a majority in a reasonably configured district. “It didn’t say in a reasonably compact district,” Alito stressed. “It said reasonably configured. So would you agree that whether a district is reasonably configured takes into account more than simply whether it is compact but also whether it is the kind of district that an unbiased mapmaker would draw?”
- The Milligan lawyer: “The district court’s unanimous and thorough intensely local analysis did not err in finding that the Black Belt is a historic and extremely poor community of substantial significance…The Voting Rights Act is a remedial statute that Congress has twice reenacted since Gingles, and its application here raises no constitutional concerns.” The lawyer also asserts that “nothing in the text of Section 2 allows Alabama to avoid liability by offering up these post hoc rationalizations of simulations and core retention for maps that result in discrimination.”
- The Milligan lawyer begins his opening statement.
- The Alabama lawyer: “I think a white Republican in Mobile or Black Republican in Mobile, for that matter, who’s gerrymandered into the new District 2 and connected with people on the Georgia border would have a Section 2 claim himself because his vote has been abridged on account of race.”
- Jackson: “Why is it that you think that there’s a 14th Amendment problem? And let me just clarify what I mean by that. I don’t think we can assume that just because race is taken into account, that that necessarily creates an equal protection problem.”
- Barrett: “What about our precedents that say that satisfying the Voting Rights Act is a compelling interest on the part of the states? Doesn’t that get you out of the 14th Amendment problem?” The Alabama lawyer responds that there are “some cases where Section 2 violation lines up with an Equal Protection Clause violation and might satisfy strict scrutiny” and in those cases, you would have to be a race-based remedy. “But I don’t think there’s a sufficiently compelling interest here,” explains the Alabama lawyer. “[The Milligan appellees] really just showed some broad-based societal discrimination. They didn’t show anything wrong with our maps. So it cannot be that that is specifically identified discrimination that could justify using race to change our map.”
- The Alabama lawyer responds that it is the state’s core argument that “it cannot be that [the Milligan appellees] can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.”
- Barrett sought to clarify Alabama’s argument. “If you were forced to adopt a map proposed by the [Milligan appellees] that was racially gerrymandered because race was predominant in its drawing, you would be violating the 14th Amendment? Therefore, the first factor of Gingles required…race neutrality…Is that your central argument?”
- Justice Amy Coney Barrett: “I think I’m struggling in the same way that some others have about narrowing down exactly what your argument is…I disagree with you and agree with Justice Kagan’s characterization of the intent point. Our precedent and the statute itself says that you don’t have to show discriminatory intent.”
- Kavanaugh and the Alabama lawyer discuss the districting principle of core retention. The Alabama lawyer states: “I think, if you can find something wrong with those preexisting cores, then maybe you get to set them aside, and there are some states who don’t care about preexisting cores and they couldn’t take advantage of this. But, in Georgia, they indisputably did take into account preexisting cores. In Alabama, we indisputably do too.”
- Justice Brett Kavanaugh: “Why do you think [the proposed majority-minority district is] so sprawling, given that it does respect a community of interest in the Black Belt, that it can’t be a new majority-minority district?” The Alabama lawyer responds, “Their maps actually don’t do any better for the Black Belt, and that wasn’t their goal.”
- The Alabama lawyer responds by citing the high turnout rates in 2016 and the high voter registration rates of Black Alabamians. He adds, “We’re kind of in like a third generation of vote dilution claims. You have the multi-member districts in generation one. Generation two was getting rid of the racial gerrymanders. But generation three is let’s impose the racial gerrymanders, which I don’t think Section 2 was ever designed to do.”
- Kagan points to the diminishing VRA precedent. In Shelby County v. Holder (2013), where the Court removed Section 4 and 5, the Court pointed to the continuation of Section 2. Kagan references Brnovich v. Democratic National Committee (2021), which further weakened the results test of Section 2. She concludes: “And 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?”
- The Alabama lawyer responds to Kagan: “Under the current guidelines, I don’t think we would be able to because core retention is one of those principles.”
- Kagan: “Some of your arguments would strongly indicate that Alabama could enact a plan with no majority-minority districts. Do you think Alabama could do that?”
- Sotomayor: “I find it interesting that you’re touting Dr. Imai’s studies when, below, you vehemently objected to his studies on the basis that the studies were incomplete and didn’t take into account all of Alabama’s guidelines.” The Alabama lawyer responds: “Yes, Your Honor. And that’s a very easy answer to give. We took into account the preexisting district lines as traditional boundaries, so to speak. He did not. And so his map couldn’t reveal…whether race defined things.”
- The Alabama lawyer responds: “If you inject race as a traditional districting principle…it’s going to make it harder to comport with traditional districting principles and you’re going to end up with a map that’s not going to do as well.”
- “What is the significance of your computer simulations?” asks Roberts, after implying that Alabama is bringing these up to push back against claims of discriminatory intent. However, Section 2 does not require discriminatory intent if there are discriminatory results.
- Roberts asks whether the Black Belt is populous enough to compose a single congressional district. The Alabama lawyer responds that the 18 core Black Belt counties contain less than 600,000 people, over 55% Black. “It’s very difficult to draw a district. Plus, because it spans the state, you can’t draw one district that puts them all in there together. Otherwise, you’re going to strand too many people south of there and you can’t have contiguous districts.”
- Sotamayor ends her comments by asking: “Why isn’t the map that the district court relying on race-neutral?…I think what the district court said was that historically the maps you’ve drawn in the past had discrimination sort of built in.”
- Sotomayor adds: “That’s irrelevant to what constitutes a community of interest. It’s not nearly its race. It’s its socioeconomic background, it’s educational level, it’s occupation. It’s all of the things that one would look at to define a community of interest. And that community of interest should be held together.”
- Justice Sonia Sotomayor points to the lower court’s findings that a second majority-Black district can be drawn while respecting traditional redistricting criteria: “First of all, I followed the district court’s findings, the three judges, extensive record. They found that the [Milligan] respondents’ map…respected traditional districting better than the state’s map in medium compactness, continuity, respect for political subdivisions, and the desire to keep together existing communities of interest.”
- Jackson pushes back against Alabama’s assertion that the Milligan appellees’ illustrative maps need to be involved in satisfying the first Gingles factor. “I don’t understand why you are now suggesting that the step one has to also relate to the legality of [the Milligan appellees’ suggested map]. That’s not the ultimate map,” adding that the Legislature had the opportunity to redraw the maps after it was struck down.
- Alito continues: “A plaintiff in a case like this can attempt to satisfy that first condition simply by coming forward with a district that is majority-minority, but that doesn’t end the inquiry because, if it can be shown, as you claim the computer simulations in this case show, that that is not the kind of district that an unbiased map maker would ever draw, then the first Gingles precondition is not satisfied. Now that’s how I understood your basic argument. Am I right on that?” The Alabama lawyer confirms yes.
- Justice Samuel Alito comments that Alabama has made a number of arguments, “some of them are quite far-reaching.”
- After outlining the Gingles factors, Jackson asks: “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?”
- The Alabama lawyer responds, “I think you can certainly take them into account at the totality of circumstances stage…I think, in a single member district contest context, it’s especially important that the Court be putting those legitimate goals front and center for at least two reasons. First, as this Court has said in every redistricting opinion that you’ve issued, redistricting is one of the most difficult and complex things that a legislature has to undertake and it’s an area where courts are not particularly well-suited to come in and second-guess. But second and even more importantly, single member districting is uniquely zero sum.”
- Chief Justice John Roberts: “Do you agree with the solicitor general’s statement…[that] you can take into account the factors that you’re most concerned about, which is the computer simulations that show the effects of race-neutral criteria, that you can take those into account under the totality of the circumstances point, but they do not show any, do not undermine the proposition that there’s no requirement of showing intent?”
- Kagan: “We said it recently as a year ago — I dissented from this decision, but Brnovich says the fact that Section 2 does not demand proof of discriminatory purpose is one of the points of law that nobody disputes.”
- The Alabama lawyer responds, “The algorithms are not essential. They’re very helpful and illuminating,” referring to evidence presented by an expert witness at the district court level. “They show that this is what you would expect a race-neutral map drawer to produce.” Jackson immediately countered with “Why does that matter?” Jackson is referring to Congress’ 1982 amendment to the VRA, which added a “results” test, meaning that proving racial vote dilution doesn’t require proving discriminatory intent.
- Justice Ketanji Brown Jackson asks about the Gingles factors, clarifying whether Alabama is asserting that the Court should change Gingles in some fundamental way, or asserting that these plaintiffs didn’t satisfy it in some way.
- Kagan: “If you just take our existing precedent the way it is, and the three judges below…said this is an easy case. It’s not one of the hard ones. It’s not one of the boundary line cases. It was clear that the plaintiffs satisfied the Gingles preconditions.”
- Justice Elena Kagan asks the Alabama lawyer: “Do you agree that the benchmark you propose has never been recognized by this Court as the benchmark that’s appropriate in these kinds of cases?” The Alabama lawyer responds: “I think the benchmark there even for multi-member districts was neutrally drawn single member districts, not racially gerrymandered single member districts.”
- Justice Clarence Thomas asks the Alabama lawyer: “What would you use as a comparator?…Don’t you think there’s an overall problem with…these dilution cases of determining at the beginning what the comparator should be?” The Alabama lawyer responds that plaintiffs have not proposed any benchmark, other than perhaps maximization or proportionality.
- The Alabama lawyer begins his opening statement, stating “Alabama conducted its 2021 redistricting in a lawful, race-neutral manner.”
- Oral arguments begin.
Following the release of 2020 census data, the Alabama Legislature redrew the state’s seven congressional districts, maintaining a single majority-Black district. After the new map was adopted in November 2021, three sets of plaintiffs sued — all alleging racial discrimination but with different arguments. The parties in Milligan, which was consolidated with another lawsuit Caster v. Merrill, argued that the map violates Section 2 of the VRA by diluting the voting power of Black Alabamians. (There were also 14th Amendment racial gerrymandering claims at play, but these were not ruled on and remain a distinct concept from Section 2 racial vote dilution claims.)
In January 2022, a lower court determined that the map likely violated Section 2 of the VRA and ordered the Legislature to redraw a VRA-compliant map, specifically one that has a second majority-Black district. Instead of following the court order, the state of Alabama accelerated the case to the Supreme Court, which paused the lower court’s order via its shadow docket. This means that Alabama’s previously blocked map with only one majority-Black district is in place for the 2022 elections.
However, following its shadow docket order, the Supreme Court then put the case on its merits docket. Oral arguments are scheduled for Oct. 4, 2022. The justices will hear from the lawyers on both sides, along with lawyers representing the United States, before deciding whether Alabama’s congressional map violates Section 2 of the VRA and, in doing so, determine the future of this powerful section of the VRA. A decision likely won’t be released until next spring.