Patrick Semansky/AP Photo
Evan Milligan, plaintiff in Merrill v. Milligan, an Alabama redistricting case, speaks with members of the press following oral arguments, outside the Supreme Court, October 4, 2022.
Ten years ago this month, Chief Justice John Roberts achieved one of his career aspirations, fracturing the Voting Rights Act. Shelby County v. Holder effectively invalidated the preclearance framework that prevented some of the most flagrant voter suppression tactics of the Jim Crow era from seeing the light of day. Sure enough, Southern conservatives quickly updated their tactics for a new era. But last week, Roberts, backed by Justice Brett Kavanaugh, abruptly switched gears and let the remaining shards of this cornerstone of 1960s civil rights legislation stand. Allen v. Milligan, a second major Alabama decision, left intact Section 2 of the VRA, which includes prohibitions against racial discrimination in voting practices or procedures.
Milligan’s ramifications reverberate most immediately in Louisiana, Georgia, and Texas, in a region long hostile to Black suffrage. One key question is how fast states will move on the redistricting issues that are at the heart of current voting rights controversies in the run-up to the 2024 election.
The Supreme Court ruled that Alabama had minimized the political power of African American voters in its poor, rural Black Belt region. Most Black Belt voters reside in the Seventh Congressional District, but there were enough Black voters spread across four adjacent districts across the lower portion of the state from the Mississippi to the Louisiana borders to create a second majority-Black district. Instead, Alabama based its 2020 congressional maps largely on its 2011 version created by the same person who had been making the state’s maps for the past 30 years. Rep. Terri Sewell (D-AL) said last week that “there may be irreparable harm by not immediately redrawing the lines.”
After the high court decision, Louisiana Gov. John Bel Edwards (D) was not at all surprised that the congressional maps drawn by the legislature last year probably won’t pass muster now.
There is a pending case on exactly this question: Ardoin v. Robinson, which the Court paused last year until it reached a decision in Milligan. That move meant that the map that Gov. Edwards had vetoed remained in play for the 2022 election. But now, the justices are likely to send the case back to the U.S. District Court for the Middle District of Louisiana, which may decide to redo the maps or send the issue back to the legislature for another go at drawing the lines. Last year, that court blocked the congressional map drawn by the legislature and ruled that the legislature needed to create a second majority-Black district likely starting in Baton Rouge and running north along the Mississippi Delta, only to be thwarted by the Supreme Court’s delay. Now it may have a freer hand.
If anything, the case for a second majority-Black district is stronger in Louisiana where 33 percent of the population is Black, and only one of six districts is predominantly African American. About 25 percent of Alabama’s population is Black. (According to Michael Li of the Brennan Center, even though Louisiana originally asserted that its case is similar to Milligan and should be paused, since Milligan, the state claims that its case is not at all like Milligan and that the Court should consider it.)
The real question is whether the courts will go along with tactics designed to run out the clock on 2024.
The Georgia congressional maps drawn by the state lawmakers with 2020 census data also ended up in federal court. Pendergrass v. Raffensperger argues that the numbers of voters of color are large enough to create multiracial majorities in voting districts throughout the state, including one majority-Black district. The plaintiffs allege that the “General Assembly instead chose to ‘pack’ some Black voters in the Atlanta metropolitan area and ‘crack’ other Black voters among rural-reaching, predominantly white districts.” There is likely to be a federal district court ruling this summer or early fall as to whether the state needs to create an additional Black congressional district. After Milligan, “the court seems to want to move fast,” says Li.
A major Texas case pending in federal district court, LULAC v. Abbott, also involves discrimination allegations: weakening the voting strength of Latino voters on the 2022 congressional, legislative, and board of education district maps. However, a trial date has not been determined. With candidates filing for the 2024 primary elections beginning in November, any claims here may pertain to 2026 or beyond.
The danger in Alabama, Louisiana, and Georgia is that legal proceedings may drag on for so long that the current maps remain in place for the 2024 elections. Southern power brokers excel at foot-dragging, especially when it comes to African Americans and power-sharing. The 1954 Brown v. Board of Education took years to even begin to barely move the needle. Confronted with white resistance, segregation remains entrenched in many public schools.
Where mapping issues are concerned, Li has explained that the courts can invoke the Purcell principle. It holds that courts should avoid major rule changes immediately prior to elections that confuse voters and complicate administration issues for election officials. But the real question is whether the courts will go along with tactics designed to run out the clock on 2024. “Foot-dragging is nothing new in redistricting litigation,” says Li. “With the House as closely divided as it is, you really are in a ‘nothing ventured, nothing gained’ world—you can try it and the worst thing that can happen is you lose.”
Why did Roberts and Kavanaugh let Section 2 stand? One possible reason, according to Li, is that Section 2 is hard to use. Only ten cases have been successfully argued before the high court in the past decade. The factors that have to be present include racially polarized voting and in-group cohesion; in a place like Alabama’s Black Belt, with centuries of shared history, that may be easier to demonstrate than, for example, in suburbs where Blacks live alongside whites and other people of color. After having already rendered the VRA unworkable, that alone may be enough—for now. “I think their sense was this doesn’t really have that much application. ‘Why do we really concern ourselves over a Black district here and there?’” says Li. “It’s not a major tool.”
Nevertheless, other challenges could follow, and Justice Kavanaugh may even be inviting such moves. In his concurrence, he writes that “the authority to conduct race-based redistricting cannot extend indefinitely into the future. But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
Voting discrimination has also shape-shifted in response to the emerging multiracial coalitions, in the suburbs where most Black people live, especially outside large metro areas in the South, like Atlanta, Dallas, and Houston, where they can form coalitions with white, Latino, and Asian voters. Li points to Georgia Republicans’ targeting of Rep. Lucy McBath (D-GA) as an example of how this redistricting tactic played out in the northern Atlanta suburbs. She ran and won in a neighboring district after state lawmakers had moved her from a district with a small percentage of Black voters into a Republican enclave. “What Republicans did in this round of redistricting is they broke up those districts, divided minority communities and backfilled them with rural white voters,” says Li. “These weren’t seats that were guaranteed wins for minority communities, but they gave them a shot to put together a coalition.”
