The U.S. Supreme Court’s recent decision ordering the state of Alabama to draw a new congressional voting map reaffirms the essential role of the Voting Rights Act of 1965 in ensuring that communities of color have the opportunity to be fairly represented in our political system.
On June 8, the court found that Alabama’s congressional map violated Section 2 of the Voting Rights Act (VRA) by diluting the votes of Black Alabamians.
The historic ruling in Allen v. Milligan means that Alabama must redraw the map to include a second congressional district in which Black voters have an opportunity to elect candidates of their choice.
Even though Black people comprise 27% of the population in Alabama, the Legislature enacted a gerrymandered map that “cracked” the Black population, dividing it up so much that the map created just one majority-Black district out of seven in the state.
With this ruling, the court upheld nearly 40 years of its precedents by applying the legal framework of Thornburg v. Gingles, the seminal vote dilution case.
In its reasoning, the court recited the three preliminary legal requirements that the plaintiffs had to satisfy to win under Gingles. First, the Black voting-age population is sufficiently large and geographically compact to constitute a majority in a reasonably configured district. Second, Black citizens vote in a politically cohesive way. And third, white citizens vote as a bloc to defeat Black voters’ preferred candidates.
Because there was “no serious dispute” that, in Alabama, Black voters are politically cohesive and that white voters cast ballots as a bloc to defeat Black voters’ preferred candidates, the court devoted more space to analyzing the first Gingles precondition.
The court agreed that the plaintiffs had presented alternative congressional maps illustrating that the first Gingles precondition was met. These maps contained a second majority-Black district and were “reasonably configured,” performing generally better on average than Alabama’s map in their adherence to traditional districting metrics, such as compactness and the avoidance of county splitting.
Alabama’s failed arguments
Alabama contended that the plaintiffs’ maps were not reasonably configured because they split the population of a “community of interest” – the Gulf Coast region – into multiple districts. Amicus “friend of the court” briefs filed by Alabama’s allies defended that theory with a slanted historical view, arguing the region “looks as it does because” of the “contributions” of the French and other white settlers, and a slanted economic view, promoting the importance of the Gulf Coast commercial fishing industry, in which Black people comprise just 1.5% of the workers.
But in our amicus brief, filed along with the League of Women Voters and Stand-Up Mobile, we argued that there was “no reason to prioritize the interests white Alabamians hold in common over the interests that both Black and white Alabamians in Mobile and the Black Belt face together each day.” We explained that residents of the Black Belt region and the coastal city of Mobile share interests across a wide range of issues that are heavily influenced by federal government policy: access to health care, educational opportunity, and anti-hunger and other anti-poverty programs.
Acknowledging that “these shared interests may be correlated with race,” we argued that Alabama’s arguments equally relied on race-correlated shared interests on the part of white voters, and that it would “stand the VRA on its head” to subordinate the shared interests of Black voters to the shared interests of white voters. The Supreme Court agreed, citing the Black Belt’s “concentrated poverty, unequal access to government services, lack of adequate health care, and a lineal connection to the many enslaved people brought there to work in the antebellum period.”
Alabama also argued that the plaintiffs’ proposed maps were not “reasonably configured” because they retained less of the cores of the prior districts, enacted in 2011, than Alabama’s new map. The court rightly rejected this argument, reasoning that, if applied, “a State could immunize from challenge a new racially discriminatory redistricting plan simply by claiming that it resembled an old racially discriminatory plan. That is not the law: Section 2 [of the VRA] does not permit a State to provide some voters less opportunity to participate in the political process just because the State has done it before.”
The law was clear
From the beginning, it was clear that if the Supreme Court were to apply the Gingles legal framework – which it did – it would find that Alabama’s congressional map violated Section 2 of the VRA. The federal district court, in finding Alabama violated Section 2 after applying Gingles, said the case was not “a close one.” That may help explain why Alabama relentlessly argued the Supreme Court should abandon this precedent.
Alabama argued that Section 2 did not apply to single-member redistricting at all, despite the textual and historical evidence showing that Congress had intended it to do so. The court rejected this argument. Then, Alabama argued that if the Supreme Court were to continue to rule that Section 2 does apply to redistricting, the court must assess its compliance with Section 2 by comparing its map to a “race-neutral benchmark.” (Alabama’s proposed “race-neutral benchmark” was the median or average number of majority-Black districts generated in computer-drawn maps configured to consider traditional districting criteria but not race.)
If the average number of computer-generated majority-Black districts was similar to that in Alabama’s map (one for the entire state), then Alabama’s map could not be said to dilute the voting strength of Black voters, so the argument went. The Supreme Court rejected Alabama’s “race-neutral benchmark” approach, finding it “compelling neither in theory nor in practice.” Finally, Alabama argued that Section 2 was simply unconstitutional as applied to redistricting. The court rejected this radical proposition.
The law was clear: Section 2 of the VRA prohibited Alabama’s attempt to dilute the Black vote. Alabama didn’t like the law. And the court denied Alabama’s attempts to change or abolish it.
Victory for the rule of law
Many observers were concerned the court would use this case as an opportunity to weaken the VRA and its protections for voters of color. Prior to Milligan, the court’s recent rulings had done just that.
During the oral argument in Milligan, Justice Elena Kagan expressed frustration with these earlier rulings, bemoaning that the VRA had “fared not well in this Court.” She cited the court’s 2013 Shelby County v. Holder decision, which gutted Section 5 of the VRA, in addition to the court’s 2021 Brnovich v. Democratic National Committee decision, which upheld multiple voting restrictions enacted in Arizona and subsequently challenged under Section 2 of the VRA.
Fortunately, that didn’t happen here.
Instead, the court rejected Alabama’s many invitations to weaken Section 2 and reaffirmed Section 2’s vitality and critical role. This is a ruling that should delight all who want to see our multiracial democracy thrive. Black people in Alabama will now have an opportunity to elect a second member of Congress of their choice, instead of just one.
This victory for the rule of law shows how important it is that we continue to fight back against those who seek to subvert it.
Alabama diluted the voting strength of its Black residents in a congressional map used in last year’s elections. It’s not alone.
We must use all the tools at our disposal, from teaming with voting rights organizations like the League of Women Voters and Stand-Up Mobile to expressing our support for federal legislation that advances voting rights to exercising our fundamental right to vote.
Our democracy depends on it.
Jack Genberg is a senior staff attorney for the SPLC’s Voting Rights Practice Group. He specializes in redistricting.
Photo at top: In a photo from Oct. 4, 2022, Evan Milligan, plaintiff in Allen v. Milligan, listens to a reporter’s question outside the Supreme Court, following oral arguments in Washington, D.C. (Credit: Patrick Semansky/AP)