Earlier this month, the US Supreme Court surprised many observers when it upheld a lower court ruling that Alabama’s congressional redistricting plan likely violated the Voting Rights Act.
Chief Justice Roberts, joined by Justices Sotomayor, Kagan, Kavanaugh, and Jackson, refused to scale back Section 2 and rebuffed a constitutional challenge to the statute. As part of our 5 Questions series, Professor Ellen Katz discusses why the ruling was unexpected and the impact it is likely to have.
Katz, the Ralph W. Aigler Professor of Law, has written extensively about election law, civil rights and remedies, and equal protection. She also works with a group of Michigan Law students on a database and website that offers analysis of trends in Section 2 litigation.
1. What was the dispute about in Allen v. Milligan?
The case involved a challenge to a congressional redistricting plan Alabama adopted following the 2020 decennial census. Plaintiffs raised several claims, including the claim that the plan, known as HB1, violated Section 2 of the Voting Rights Act. This provision prohibits electoral practices that “result” in a denial or abridgment of the right to vote on the basis of race or membership in a designated language minority group. Plaintiffs argued that Alabama violated Section 2, as construed in Thornburg v. Gingles and subsequent decisions, because Black voters constituted a majority in only one of HB1’s seven congressional districts. Plaintiffs presented illustrative maps showing that, as Gingles requires, Black voters were sufficient in number and lived in a sufficiently compact region to comprise a majority in two single-member districts.
In early 2022, a three-judge district court held that plaintiffs were substantially likely to prevail on their Section 2 claim, adding that it did “not regard the question” of likely success to be “a close one.” The lower court issued a preliminary injunction blocking Alabama from using HB1 in the upcoming elections. Alabama sought review in the Supreme Court, asking it to stay the injunction and arguing that the lower court’s construction of Section 2 was both incorrect and unconstitutional.
2. What did the Supreme Court rule?
Back in February 2022, the Supreme Court stayed the district court’s ruling, thereby allowing Alabama to use HB1 in the 2022 elections. On June 8, the Court nevertheless affirmed the district court’s judgment. Chief Justice Roberts’s majority opinion, joined by Justices Sotomayor, Kagan, Kavanaugh, and Jackson, found “no reason to disturb the district court’s careful factual findings” and no “basis to upset” its legal conclusions that “faithfully applied our precedent and corrected determined that under existing law HB1 violated § 2.” On the primary statutory point in dispute, the Court found ample evidence to support the district court’s finding that a second majority-Black district could be drawn. The chief justice’s opinion noted that the plaintiffs’ illustrative maps showing that a second compact Black majority district could be drawn “perform[ed] generally better” on specified criteria than did the state’s map.
The Court also quickly dispensed with Alabama’s constitutional challenge to Section 2, as construed. The opinion noted that “we held over 40 years ago ‘that, even if § 1 of the [Fifteenth] Amendment prohibits only purposeful discrimination, the prior decisions of this Court foreclose any argument that Congress may not, pursuant to § 2 [of the Fifteenth Amendment] outlaw voting practices that are discriminatory in effect.’” The opinion also deemed unproblematic the authorization of “race-based redistricting as a remedy for state districting maps that violate § 2,” noting that federal courts have “under certain circumstances” authorized this remedy in Section 2 dilution cases.
3. What made this ruling a surprise?
The decision to affirm was surprising because the Court appeared poised to do just the opposite. Not only had it narrowed Section 2 in a series of previous cases, but it had also, as noted, stayed the district court’s ruling, thus allowing Alabama to use HB1 for the 2022 elections. That stay suggested that a majority of the justices believed the lower court had erred and that they were inclined to overrule the lower court’s judgment on fuller review.
Instead, the Court refused to displace the lower court’s ruling. Justices Sotomayor, Kagan, and Jackson were widely expected to affirm the lower court, but the chief justice and Justice Kavanaugh were not. True, Chief Justice Roberts had also dissented from the order issuing the stay, noting at the time, “the district court properly applied existing law in an extensive opinion with no apparent errors for our correction.” Still, the chief justice also agreed that the Court should review the decision on its merits, positing that “Gingles and its progeny have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim” and that the Court should “resolve the wide range of uncertainties” that arise under existing doctrine.
It turned out that the “uncertainty” that required “resolu[tion]” was whether “the existing law” that the district court “properly applied” was, in fact, still good law. Chief Justice Roberts made clear that it was. Expressly declining “Alabama’s attempt to remake our § 2 jurisprudence anew,” the Court held that Section 2 would continue to be understood, as Gingles and other surviving precedent dictated, to prohibit redistricting plans like Alabama’s HB1. Easing that conclusion, no doubt, was that Alabama’s proposed interpretation—that maps drawn without consideration of race, as it claimed its challenged maps were, could not violate Section 2—would have required the Court to repudiate considerable precedent and to ignore the fact that Congress rejected precisely this view when it amended Section 2 in 1982. Instead, Milligan affirmed Section 2’s continued viability, at least in a narrow set of traditional circumstances.
Justice Kavanaugh provided the critical fifth vote in Milligan. He was the only justice among those voting to affirm who also supported issuance of the stay the previous year. And while Justice Kavanaugh said the stay was warranted due to the proximity of the case to the upcoming elections, he also noted at the time that “the underlying merits appear to be close and, at a minimum, not clear-cut in favor of the plaintiffs.” In Milligan, he nevertheless joined the Court in affirming the district court’s “careful factual findings,” its “faithful appli[cation of] our precedent,” and its “correct determin[ation] that” HB1 violated Section 2.
4. Why did Justice Kavanaugh write separately?
Justice Kavanaugh declined to join a small section of Chief Justice Roberts’s opinion in which he wrote that being aware of racial considerations in redistricting differs from being motivated by them. The chief justice stated that only the latter is prohibited in the redistricting process, and that race does not predominate simply because plaintiffs present illustrative maps created—“as our cases require”—to show that an additional majority-minority district could be drawn. Far from running afoul of statutory or constitutional constraints, consideration of race in this manner—and presumably subsequently by the state in response to the submitted maps and judicial rulings about them—simply shows the Section 2 regime to be operating as Congress intended and precedent allows. The chief justice stated bluntly: “That is the whole point of the enterprise.”
The chief justice’s embrace of these ideas is, without doubt, noteworthy in light of previous statements he has made about the role of racial considerations in the redistricting process and beyond. One can debate the extent to which the discussion Chief Justice Roberts offers in Milligan reflects a change in his substantive views, or rather the fact that Milligan affirmed a ruling the lower court deemed not “close,” based on decades of settled precedent, and that holding otherwise would have required substantial reworking of existing law.
Justice Kavanaugh’s refusal to join this part of the opinion may have stemmed from concern about the implications that section might have in other disputes, most notably in the pending affirmative action cases. But he also may have wanted to leave space for future rulings in this very arena. Justice Kavanaugh was not willing to overrule Gingles—that, he wrote, was for Congress to do, if it was so inclined—and he was not willing to strike down the statute entirely based on the constitutional arguments the majority understood Alabama to be pressing. But Justice Kavanaugh was willing to invite further litigation. He noted what he called the “temporal argument,” which posits that, like the VRA’s preclearance regime, which was rendered inoperative in Shelby County v. Holder, Section 2 was constitutional when enacted but might not be going forward. After all, he wrote, the authorization of “race-based redistricting” under the “statute cannot extend indefinitely into the future.” Justice Kavanaugh declined to consider the argument “at this time” because Alabama, in his view, had failed to press it. The invitation was nevertheless extended to bring that claim in a subsequent case.
5. What impact is the decision likely to have?
Most concretely, Milligan will require Alabama to redraw its congressional map to create an additional Black-majority district. Several other states may need to take similar action in light of pending cases that hinged on the outcome in Milligan. Some commentators have predicted that as many as five Republican House seats may be replaced by likely Democratic ones in 2024.
Whether Milligan will give rise to new Section 2 cases remains to be seen. As our Section 2 project documents and Chief Justice Roberts’ opinion observed, “§ 2 litigation in recent years has rarely been successful.” Milligan proved to be the exception, perhaps because the violation was so blatant that failure to recognize it would have gutted the statute entirely. More nuanced cases, particularly those in which racial bloc voting is less pronounced, may meet more resistance going forward.
Milligan’s significance may lie in the Court’s affirmation of Section 2 as traditionally applied. Milligan’s finding that the lower court “faithfully applied our precedent” and its rejection of “Alabama’s attempt to remake our § 2 jurisprudence anew” are both curious given that the Supreme Court does not typically review cases simply to affirm the application of settled law. The decision may be a response to the fact that, prior to Milligan, the Court had repeatedly and systematically narrowed Section 2’s reach. Those limits, coupled with Shelby County’s elimination of Section 5, helped fuel a resurgence of practices resembling those that Section 2 originally displaced. Milligan pushed back, signaling that the Court believes Section 2 remains a meaningful constraint on conduct and that it will enforce it, at least in limited circumstances.
How long that commitment will last is far from clear. The majority opinion’s quick rejection of Alabama’s constitutional challenge to Section 2 leaves ample room for the Court to consider a subsequent challenge pressing the temporal argument that Justice Kavanaugh flagged. Such a challenge is certain to be forthcoming, and it seems plausible, if not probable, that it could garner support from a majority of the Court.