On Thursday, the United Supreme Court issued its opinion in Allen v. Milligan,  a case in which Alabama voters challenged the state’s new congressional district lines under Section 2 of the Voting Rights Act.  As people may remember, due to COVID and the resulting delay in the 2020 census, Alabama completed its redistricting process shortly before filing began.  Although the voters quickly filed their case, and the three-judge panel quickly heard the challenge and issued its decision, a 5-4 majority decided that any change caused by any new lines issued by the judges would be too close to the start of the election process (but that the legislation changing the lines was not) for the judge-drawn lines to be used in the 2022 election.  So the 2022 election was held under the new lines drawn by the legislature while the U.S. Supreme Court decided whether those lines were valid.  In its ruling this week, five justices (with Justice Kavanaugh switching sides and Justice Jackson replacing Justice Breyer) upheld the trial court ruling.

To start with the legal considerations, Section 2 of the Voting Rights Act bars any voting practice or procedure that causes a protected group to “have less opportunity than other” groups “to elect representatives of their choice.”  While Section 2 also contains language disavowing an express requirement of proportionality, previous cases have found that Section 2 applies to redistricting and that it requires those bodies charged with redistricting to consider whether the maps give sufficiently large racial and ethnic groups a fair shot at electing a proportionate number of members.  Basically, this is done by drawing either “minority influence” districts (in which minorities are a large enough percentage of the voters that they can form a majority by aligning with like-minded non-minority voters) and “minority majority” districts. (in which the minority group is over 50% of the likely voters).

The current language in Section 2 was adopted in the early 1980s.  The first major case applying Section 2 to redistricting devised a three-part test.  First, the voters needed to show that minority voters are sufficiently concentrated that there is a reasonable map which would give them an additional minority influence or minority majority district.  In equal protection cases, the Supreme Court has made clear that maps that grossly violate traditional considerations to force geographically dispersed minority enclaves into the same district are forbidden.  Second, the voters must show that the minority group is politically cohesive.  In other words, that a significant majority sees itself as one group and tend to support the same type of candidate.  (For example, it might be harder to show that Asian voters are a group but easier to show that Vietnamese voters are a group.)  Third, the voters must show that the majority group (almost always white voters) will oppose the candidate supported by the minority group.   In other words, the last two parts require showing that racialized voting is still common in the jurisdiction.

In the current case, the three-judge panel (Section 2 cases are heard by a three-judge panel) made a preliminary ruling that the plaintiffs were likely to succeed an issued an order barring the use of the current maps pending a final ruling.  In Alabama, there is part of what is commonly known as the “black belt.”  The black belt is essentially a soil type which stretches across most of the southeastern state from Georgia to Texas.  This soil is very favorable for growing cotton and, therefore, was where there was a high slave population prior to the War of Southern Treason.  Even today, over 150 years after the end of slavery, there is a high percentage of African-Americans in the black belt.  In what should be a surprise to nobody, Alabama has a history of trying to keep minority representation down and of using the traditional “packing” and “cracking” techniques to do so.  The post-2010 maps shoved as many African-Americans as possible into one district and split up the rest of the black belt among several districts.  During the special Senate election several years ago, Senator Doug Jones only carried that one minority majority district while losing the other six districts in the state even though he won a majority statewide.  Thus, the data was readily available that African-American precincts are politically cohesive and, unless the number of African-American voters are sufficiently large, enough white voters will vote differently to prevent minority voters from picking representatives of their choosing.   And, due to changes in population patterns, the plaintiffs were able to draw maps in which there were two African-American districts (which is roughly proportional to the African-American share of total population)

Alabama made a weak defense of its maps under current law.  In this part of its argument, Alabama alleged that the maps showing two African-American districts violated traditional redistricting criteria by breaking up a community of interest, but the Supreme Court rejected this argument because it merely placed one community of interest (the Gulf Coast) ahead of a different community of interest (the black belt).  Community of interest arguments tend to be stronger in the lower legislative maps where there are more districts and, thus, an ability to protect all communities of interest.  The Supreme Court also rejected a claim that a desire for “core retention” (i.e. minimizing the number of voters moved to a different district) can justify a map that dilutes minority votes.

Not having a good argument under the current interpretation of Section 2, Alabama sought to have the Supreme Court change the law governing Section 2 claims.  The big argument is that how many majority-minority districts are required can be determined by resorting to modern redistricting software.  In essence, those programs should be directed to draw a large number of maps using “race-neutral” criteria, and the average number of majority-minority districts created by those maps should be the appropriate number of minority majority districts.  In essence, this test would rewrite the first part of the test for a Section 2 violation to require that plaintiffs present a map generated using race neutral criteria to show that additional majority minority districts are possible and also show that the only explanation for the map drawn by the state is purposeful racial discrimination (an argument which ignores that Section 2 adopts a disparate impact test — i.e. racially discriminatory result — not a disparate purpose test — i.e. intentional racial discrimination).  The majority rejects this test as inconsistent with Section 2.    The majority found that, because of the role that traditional redistricting criteria (primarily avoiding unnecessary county, city, and precinct splits) play in the current test along with the other factors, the current test does not require absolute proportionality.

One thing to note about the majority in this case.  Justice Kavanaugh wrote a concurrence.  In part of that concurrence, Justice Kavanaugh noted that, traditionally, the Supreme Court is more reluctant to overturn past decisions interpreting statutes than it is to overturn past decisions involving the Constitution.  The purported rationale for this distinction is that Congress can (and often does) amend statutes to address Supreme Court rulings.  As such, the Supreme Court infers that, if Congress does not amend a statute to “fix” any perceived problems with the Supreme Court’s decision, then Congress must want the Supreme Court to continue to follow the rule created by that decision.   Justice Kavanaugh also included a curious discussion about the “temporal” nature of the remedy created by Section 2.  In the affirmative action cases which are currently pending, one of the arguments is that the time for race-conscious admissions decisions has expired.   Justice Kavanaugh rejects that claim about Section 2 on the ground that it is not properly raised in this case (leaving it up in the air what would happen if, say, Georgia were to make that claim in Georgia’s case).

The quick bottom line from this opinion is that the Supreme Court has, at least for now, kept intact the protection against cracking and packing racial minority groups (even when the explanation is that the legislature merely considered voting tendencies rather than race in drawing the lines).

Now for the practical impact of this ruling.  In addition to the Alabama case, the U.S. Supreme Court has had a similar case from Louisiana “on hold.”  It is likely to quickly affirm.  Additionally, courts in Georgia and Florida postponed acting on challenges to the redistricting plans in those states while this case was pending.  Given the prior ruling in Louisiana and this ruling, we are likely to see an additional minority-majority district in those two states.   Since both states only have one Democratic representative in Congress, the new maps will likely have to create a second Democratic district.  I am less sure of the numbers in Georgia.  In Florida, the maps were blatantly drawn to eliminate a minority majority district.  If Section 5 were still in effect (barring plans that increased discrimination), the Florida map would never have gone into effect.  So that is, at least, three new Democratic districts for the 2024 election.  Additionally, Section 2 claims may limit the ability of the Republicans in North Carolina to put into effect their preferred map — limiting the gains that Republicans will make in North Carolina due to the blatantly partisan change in the ruling by the North Carolina Supreme Court in the current political gerrymandering case.  In short, this ruling does not “guarantee” that Democrats will regain the House, but it makes it much harder for the Republicans to keep their majority.