Why the US Supreme Court’s Landmark Allen v. Milligan Ruling Still Matters Today

WASHINGTON, D.C. — One year ago today, the U.S. Supreme Court handed down the landmark Allen v. Milligan decision, upholding a provision of the Voting Rights Act (VRA) that serves as a critical defense against racially discriminatory electoral maps.

In a 5-4 decision, the Court’s majority upheld Section 2 of the VRA in a challenge to Alabama’s congressional map. The Court’s decision affirmed a lower court ruling that struck down the state’s congressional map and ordered the creation of a second majority-Black district out of Alabama’s seven congressional districts. 

“Section 2 has long played an important, historical role in opening the door to Black and Latino representation across the country,” Michael Li, senior counsel for the Brennan Center’s Democracy Program, told Democracy Docket in a phone interview on Friday.

Marina Jenkins, executive director of the National Democratic Redistricting Committee, told Democracy Docket via email, “there is no other law that provides the same level of protection for the voting rights of communities of color. Section 2 is the single most important tool for voters in states to defend against racial vote dilution.” 

In Allen, the plaintiffs alleged that the map drawn with 2020 census data diluted the voting strength of Black Alabamians in violation of Section 2. Specifically, they said Black voters were “packed” into the state’s 7th Congressional District and “cracked” among three other districts in order to avoid drawing a second majority-Black district.

“Packing” and “Cracking” are tools used to gerrymander electoral districts — often in ways that undermine the voting strength of minority voting blocs, Li explained to Democracy Docket last month. “The two basic tools of drawing discriminatory maps are either packing voters that you don’t like together so that you limit their effectiveness, or breaking them apart,” he said.

In January of 2022, a federal three-judge panel blocked the map, but the U.S. Supreme Court later paused the order, allowing the state to keep the map in place for the 2022 elections. A year later the case changed from Merrill to Allen after Alabama’s new Secretary of State Wes Allen (R) was sworn in to succeed John Merrill.

In June of 2023, the U.S. Supreme Court affirmed the federal district court’s earlier determination that the plaintiffs “demonstrated a reasonable likelihood of success on their claim” that the map violates Section 2. 

In its ruling, the Court cited Thornburg v. Gingles, validating the 1986 ruling that established what’s known as the Gingles factors, a test that courts have used for decades to evaluate Section 2 claims. The Gingles test “requires the creation of a majority-minority district” only when three preconditions are met.

“It’s a clear — in a lot of ways mechanical — test for determining when there is vote dilution,” Li said, “and when you need to remedy that.”

One reason Section 2 is often used in redistricting cases is because it’s one of the few tools voters have to fight racially discriminatory maps, Li said, pointing to other Court decisions, like 2019’s Rucho v. Common Cause and the recent Alexander v. South Carolina NAACP, that impacted voters’ ability to challenge electoral maps they believe are unfair.

“If you’re a voter of color facing a dilution of your voting power,” Li said, “Section 2 is one of the few things that we have left.”

But, as Li noted, Section 2 alone isn’t always enough to mount a successful challenge against a racially discriminatory map.

In Louisiana, for example, the Legislature in January passed a new congressional map featuring two majority-Black districts. That map was passed to fix a Section 2 VRA violation with the state’s original map that only had one majority-Black district. But after the new map was passed, a group of mostly-white voters sued Louisiana officials, alleging that it was an unconstitutional racial gerrymander.

In April, a federal district court sided with the plaintiffs and blocked the implementation of the map. Then, attorneys for both the state and the NAACP sought an emergency order from the Supreme Court to allow Louisiana to use the blocked map this fall, which the Court granted. The case remains active.

“The ongoing Louisiana litigation exemplifies the continued need to fight not only for the enforcement of Section 2, but for the value and constitutionality of the law itself,” Jenkins said. “The fact that the case was brought at all is a reminder that there are still anti-democratic forces determined to roll back progress.”

This year, Republican officials have sought to undermine voters’ ability to bring Section 2 claims by arguing in some cases that only the U.S. attorney general, and not private groups, can bring claims under Section 2.

Both Li and Jenkins noted that lawmakers have attempted to bolster the federal Voting Rights Act through the “John R. Lewis Voting Rights Advancement Act,” but the legislation has never cleared Congress.

The bill would establish new criteria for determining which states and political subdivisions must obtain preclearance from the Department of Justice (DOJ) or the D.C. U.S. District Court before changes to voting practices may take effect. The legislation is in part a response to a 2013 decision from the Court that gutted the “preclearance” requirement outlined in Sections 4 and 5 of the Voting Rights Act of 1965.

It underscores the need for more than one avenue for voters seeking fair representation, Li said. “The Supreme Court is not going to save us, state courts may or may not save us, it’s ultimately a multi-front fight.”