SCOTUS Upholds Section 2 of the Voting Rights Act in Alabama Redistricting Case
In Allen v. Milligan, 599 U.S. ____ (2023), the U.S. Supreme Court held that challengers showed a reasonable likelihood of success on their claim that an Alabama Congressional redistricting plan likely violated Section 2 of the Voting Rights Act. In reaching its decision, the Court confirmed that the Voting Rights Act prohibits discriminatory effects, not just discriminatory intent.
Facts of the Case
Section 2 of the Voting Rights Act of 1965 bans voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups set forth in Section 4(f)(2) of the Act. In Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held that Section 2, as originally enacted by Congress in 1964, was a restatement of the protections guaranteed under the Fifteenth amendment. Thus, it prohibited States from acting with a “racially discriminatory motivation” or an “invidious purpose” to discriminate, but it does not prohibit laws that are discriminatory only in effect. In 1982, Congress amended Section 2 to incorporate both an effects test and a robust disclaimer that “nothing” in Section 2 “establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”
In 1992, Section 2 litigation challenging the State of Alabama’s then-existing districting map resulted in the State’s first majority-black district and, subsequently, the State’s first black Representative since 1877. Alabama’s congressional map has remained remarkably similar since that litigation. Following the 2020 decennial census, a group of plaintiffs led by Alabama legislator Bobby Singleton sued the State, arguing that the State’s population growth rendered the existing congressional map malapportioned and racially gerrymandered in violation of the Equal Protection Clause. While litigation was proceeding, the Alabama Legislature’s Committee on Reapportionment drew a new districting map that would reflect the distribution of the prior decade’s population growth across the State. The resulting map largely resembled the 2011 map on which it was based and similarly produced only one district in which black voters constituted a majority. That new map was signed into law as HB1.
Three groups of Alabama citizens brought suit seeking to stop Alabama’s Secretary of State from conducting congressional elections under HB1. One group (Caster plaintiffs) challenged HB1 as invalid under Section 2, while another group (Milligan plaintiffs) brought claims under Section 2 and the Equal Protection Clause of the Fourteenth Amendment. Finally, a third group (the Singleton plaintiffs) amended the complaint in their ongoing litigation to challenge HB1 as a racial gerrymander under the Equal Protection Clause. The Singleton and Milligan actions were consolidated for purposes of preliminary injunction proceedings, while Caster proceeded before one of the judges on a parallel track. After an extensive hearing, the District Court concluded that the question whether HB1 likely violated §2 was not “close.” The Court preliminarily enjoined Alabama from using HB1 in forthcoming elections.
Supreme Court’s Decision
The Supreme Court affirmed that lower court’s decision that the Alabama districting plan likely violated Section 2 of the Voting Rights Act by diluting the votes of Black residents. As Chief Justice John Roberts wrote, the District Court “faithfully applied this Court’s precedents in concluding that HB1 likely violates Section 2.”
The Supreme Court analyzed the Section 2 claim under the framework set forth in Thornburg v. Gingles, 478 U.S. 30 (1986). As set forth in Gingles, the “essence of a §2 claim” is when “a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters.” That occurs where an “electoral structure operates to minimize or cancel out” minority voters’ “ability to elect their preferred candidates,” with the greatest risk occurring “where minority and majority voters consistently prefer different candidates” and where minority voters are submerged in a majority voting population that “regularly defeat[s]” their choices.
To prove a Section 2 violation under Gingles, plaintiffs must satisfy three “preconditions.” First, the minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district. Second, the minority group must be able to show that it is politically cohesive. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it to defeat the minority’s preferred candidate. A plaintiff who demonstrates the three preconditions must then show, under the “totality of circumstances,” that the challenged political process is not “equally open” to minority voters.
Here, the Supreme Court found that the extensive record supported the District Court’s conclusion that plaintiffs’ Section 2 claim was likely to succeed under Gingles. With regard to the firstprecondition, the Court found that the District Court correctly found that black voters could constitute a majority in a second district that was “reasonably configured.” The Court went on to find that the District Court findings with regard to the second and third Gingles preconditions were also correct. As the Court explained, the District Court determined that there was “no serious dispute that Black voters are politically cohesive, nor that the challenged districts’ white majority votes sufficiently as a bloc to usually defeat Black voters’ preferred candidate.” In support, the court noted that, “on average, Black voters supported their candidates of choice with 92.3% of the vote” while “white voters supported Black-preferred candidates with 15.4% of the vote.” Finally, the District Court concluded that plaintiffs had carried their burden at the totality of circumstances stage given the racial polarization of elections in Alabama, where “Black Alabamians enjoy virtually zero success in statewide elections” and where “Alabama’s extensive history of repugnant racial and voting-related discrimination is undeniable and well documented.”
Finally, the Supreme Court rejected the State of Alabama’s calls to rework the Gingles framework using its “race-neutral benchmark” theory that relies on computer-generated maps. As the Chief Justice explained:
A State’s liability under §2, moreover, must be determined “based on the totality of circumstances.” Yet Alabama suggests there is only one “circumstance” that matters—how the State’s map stacks up relative to the benchmark. That single-minded view of §2 cannot be squared with the VRA’s demand that courts employ a more refined approach. And we decline to adopt an interpretation of §2 that would “revise and reformulate the Gingles threshold inquiry that has been the baseline of our §2 jurisprudence” for nearly forty years.
The Court also rejected Alabama’s argument that the race-neutral benchmark is required because the Court’s existing Section 2 jurisprudence inevitably demands racial proportionality in districting, contrary to the last sentence of Section 2. According to the Court, properly applied, the Gingles framework itself imposes meaningful constraints on proportionality. In support, it noted that Section 2 lawsuits have largely not been successful in recent years.
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Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
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