The Supreme Court effectively ordered the state of Alabama to draw a second majority-Black congressional district on Thursday, handing an unexpected victory to voting rights activists in a court that is rarely friendly to them. In a 5–4 decision in Allen v. Milligan, the justices held that Alabama’s refusal to draw a second district had violated Section 2 of the Voting Rights Act of 1965.
“The concern that Section 2 may impermissibly elevate race in the allocation of political power within the States is, of course, not new,” Chief Justice John Roberts, a longtime critic of the VRA, wrote for the majority. “Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.” Justice Brett Kavanaugh and the court’s three liberal justices joined him.
To say that Thursday’s ruling was a surprise would be an understatement. Roberts and his fellow conservative justices have consistently weakened the VRA’s protections for a decade, most notably in Shelby County v. Holder in 2013. Many voting rights activists had dreaded the possibility that the Supreme Court would rule that Section 2 does not apply to redistricting cases. Such a ruling would have made it substantially harder to bring claims of racial gerrymandering in court.
Instead, Thursday’s ruling could open the door to lawsuits in other Southern states seeking to add additional majority-Black congressional districts. Lower federal courts in Louisiana already ruled against that state’s congressional map last year on similar grounds; the Supreme Court stayed that ruling pending the outcome in Milligan. The ultimate impact of Thursday’s decision will depend, however, on Roberts’s and Justice Brett Kavanaugh’s willingness to apply it elsewhere.
The fight over Alabama’s current congressional maps began after the 2020 census. Just over a quarter of Alabama’s eligible voters are Black. While the state’s population had grown by 5 percent since the previous count, state lawmakers left the existing map of seven congressional districts largely unaltered. Under that map, only one of Alabama’s congressional districts would be a district where the state’s Black voters could feasibly elect a representative. Even that district itself was imposed upon the state legislature by a court ruling in 1992.
After Alabama Governor Kay Ivey signed the new maps into law in 2021, multiple groups of plaintiffs sued to challenge them on racial-gerrymandering grounds. They argued that the new map violated Section 2 of the Voting Rights Act, which forbids states from passing voting laws that give a racial minority group “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In 1982, Congress amended Section 2 to apply when there was a racially discriminatory effect from voting laws, even if there was no evidence of discriminatory intent by lawmakers.
In the 1986 case Thornburg v. Gingles, the Supreme Court created a test for lower courts to use for Section 2 redistricting cases. To prevail, the justices held that an affected minority group must show that it is “large and compact” enough to form a majority in a potential district, that it must be politically cohesive, and it must be able to prove that white voters cast their ballots cohesively enough to deny representation to the minority voters. The Gingles ruling tried to navigate between Section 2’s overall ban on minority vote dilution and a provision in the 1982 amendments that bans courts from imposing proportional representation on a state.
To prove their case, the plaintiffs drew maps that showed a second majority-Black congressional district could be readily drawn in Alabama’s Black Belt, which stretches across the state’s lower midsection, without violating other general redistricting principles. A special three-judge panel in the district court ruled in their favor last year, saying the question of whether the state’s redistricting plan violated Section 2 was “not a close one.” The panel ordered the state to draw new maps that added a second majority-Black district, but the Supreme Court voted 5–4 to stay that ruling while it agreed to hear the case. That decision, with Roberts joining the liberals in dissent, meant that the state’s maps were used in the 2022 midterm elections.
Alabama made two arguments to the Supreme Court last fall. First, it argued that maps should be judged based on a “race-neutral benchmark” set by computer programs that can draw millions of potential maps. The state also asked the court to add additional hurdles to the Gingles factors, including proving that a second majority-minority district could be drawn without using race as a factor. Alternatively, the state urged the justices to rule that Section 2 did not apply to single-member districts, the sole method by which Americans elect their House representatives today.
Those arguments apparently did not persuade Roberts, who saw other motivations at work behind the state’s propositions. “The heart of these cases is not about the law as it exists,” he wrote for the court. “It is about Alabama’s attempt to remake our Section 2 jurisprudence anew.” He pointed out that a long chain of Supreme Court rulings since the 1980s could properly decide the case without setting new precedents.
“Alabama’s approach would require ‘abandoning’ this precedent, ‘overruling the interpretation of Section 2’ as set out in nearly a dozen of our cases,” Roberts concluded, quoting a 1994 dissent by Justice Clarence Thomas, who reiterated his criticism of Section 2 in a dissent from Thursday’s ruling. “We decline to take that step. Congress is undoubtedly aware of our construing Section 2 to apply to districting challenges. It can change that if it likes. But until and unless it does, statutory stare decisis counsels our staying the course.”
Kavanaugh, who signed on to most of Roberts’s ruling, also wrote separately to clarify how he read the court’s holding. He agreed that statutory stare decisis—a mostly Latin term for obeying precedents that interpret acts of Congress—counseled against overturning those precedents since Congress could readily amend the VRA again if it thought the court was wrong. He also rejected Alabama’s arguments about race-neutral computer simulations and about proportional representation.
But he also suggested that the fight might not be over. While Roberts squarely rejected the idea that Section 2’s constitutionality might expire as the Jim Crow era fades into history, Kavanaugh simply noted that Alabama hadn’t raised that point clearly enough for the court to consider. “Justice Thomas notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under Section 2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future,” he wrote. “But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
That suggests that Kavanaugh may be open to that argument in future litigation. Thomas, in dissent, interpreted it that way while also criticizing him for not embracing it now. “Nonetheless, Justice Kavanaugh votes to sustain a system of institutionalized racial discrimination in districting—under the aegis of a statute that applies nationwide and has no expiration date—and thus to prolong the ‘lasting harm to our society’ caused by the use of racial classifications in the allocation of political power,” Thomas argued. “I cannot agree with that approach. The Constitution no more tolerates this discrimination today than it will tolerate it tomorrow.”
Thomas’s dissent was only joined in full by Justice Neil Gorsuch. Justice Amy Coney Barrett joined only two of the three sections of the dissent, including a portion where Thomas argued that Section 2 was outright unconstitutional if it meant what the majority claimed. Justice Samuel Alito declined to go quite that far, writing separately to explain that he thought the majority had simply misinterpreted Gingles and would have ordered the lower courts to reconsider the case accordingly.
Beyond the legal implications, Thursday’s ruling could alter the balance of power in Congress next year. Republicans only have a five-seat House majority after a middling performance in the 2022 midterms. Majority-Black districts historically tend to elect Democratic members of Congress. If the ruling in Louisiana also stands, Democrats could almost cut that gap in half before a single vote is counted next year. Similar rulings in other Southern states could close it altogether.
That outcome also depends on the justices’ willingness to stand by Thursday’s ruling, however. The decision was a serious departure by Roberts from his usual habit of critiquing the VRA and effects tests in racial-discrimination cases in general, perhaps brought about by Alabama’s argumentative overreach. Kavanaugh himself also may have suggested in his own concurring opinion that he could uphold similar congressional maps in future cases if the arguments were presented differently to him. While Allen v. Milligan is a significant victory for voting rights, it’s too soon to tell if it will be an enduring one.