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Commentary
John Sullivan Baker is a 3L at Columbia Law School, where he is a Constitutional Democracy Initiative student fellow. Recently, he supported Voting Rights Act enforcement as an intern for the Voting Section of the U.S. Department of Justice, Civil Rights Division. He is also a Lawfare student contributor.
By John Sullivan Baker
October 9, 2023, 9:30 AM
In June 2023, the Supreme Court delivered an unexpected victory for voting rights, affirming a district court holding that Alabama’s congressional map likely violated Section 2 of the Voting Rights Act, a key provision prohibiting racial discrimination in election administration.152 U.S. Code § 10301. The case reached the high court after a three-judge district court panel preliminarily enjoined Alabama from implementing the map, which contained only one majority-Black district out of seven total. The panel had directed the state, whose population is about 27 percent Black, to create a second district that gave Black voters the opportunity to elect a candidate of their choice.2After the Supreme Court in Merrill v. Milligan, 142 S. Ct. 879 (2022), stayed the district court ruling Alabama used the enjoined map for the 2022 midterms.
The Supreme Court decision, Allen v. Milligan,3155 U.S. 1 (2023). upheld longstanding Section 2 precedent, including the landmark 1986 case Thornburg v. Gingles,4478 U.S. 30 (1986). which established a three-factor results test for assessing whether a districting plan unlawfully dilutes the voting power of minority communities. The 5-4 ruling in Milligan, written by Chief Justice John Roberts, was joined by the three liberal justices and, in a surprise to many, Justice Brett Kavanaugh. The latter, however, did not join in full; rather, he declined to sign on to a brief section of the Roberts opinion, Part III-B-1, which highlighted the differences between racial predominance and racial consciousness in districting. Justice Kavanaugh also penned his own concurrence expressing support for much of the majority’s reasoning, but suggesting that Congress’s authority to remedy discrimination under Section 2—as it is currently applied—may be time-limited.
But Milligan had a postscript. After the Supreme Court remanded the case to the district court, Alabama defiantly enacted a new map which—like the invalidated plan—still produced just one majority-Black district. Alabama did this despite the district court’s orders “to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.”5Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022). Sharply criticizing the state’s refusal to implement the required remedy, the district court enjoined the new map.6Singleton v. Allen, No. 2:21-cv-1291-AMM, 2023 U.S. Dist. LEXIS 155998, at *155 (N.D. Ala. Sep. 5, 2023). Almost immediately, Alabama requested that the Supreme Court stay the injunction pending appeal. However, the Supreme Court denied the stay application with no noted dissents, prompting Alabama to dismiss the appeal.7Allen v. Milligan, No. 23A231, 2023 U.S. LEXIS 2949 (Sep. 26, 2023), appeal dismissed per stipulation, 2:21-cv-01530-AMM (N.D. Ala. Sept. 29, 2023).
This outcome ensured that Alabama will have two Black-majority districts in 2024. Yet Alabama Attorney General Steve Marshall struck a defiant tone even as he conceded defeat. In a statement, he acknowledged Alabama would be “encumbered” by a court-drawn map in 2024 but declared that his office would “continue our fight to defend the 2023 map . . . which complies with both the Voting Rights Act and the Constitution’s promise that governments should be colorblind.” If Alabama maintains this determination to litigate, the Supreme Court could end up hearing yet another case about the state’s map.
As the decisive vote in Milligan, Justice Kavanaugh will almost certainly be back at the center of any other Section 2 cases before the Court. This commentary explains what he said in Milligan—and, importantly, what he did not say. For context, it also describes the majority’s key holdings. Through his statements and his silence, Justice Kavanaugh has invited defendants to fight Voting Rights Act claims by arguing that Section 2 has passed an undefined sunset date. And by (rather inexplicably) declining to sign on to a portion of the Roberts opinion that deals with key questions of racial consciousness and predominance in districting, he has left an opening for Section 2 defendants, including Alabama, to question whether courts may order the drawing of additional minority opportunity districts.
The Roberts Majority
The majority began the opinion by putting Milligan in historical context. In 1965, Congress passed the Voting Rights Act, Section 2 of which effectively restated the Fifteenth Amendment. However, in the 1980 decision City of Mobile v. Bolden,8446 U.S. 55 (1979). the Supreme Court curtailed the reach of the Fifteenth Amendment and Section 2 by limiting their application to only intentional discrimination—not election systems or procedures that only produce discriminatory effects without intent. Because the Bolden Court did not conclude that Mobile harbored a discriminatory purpose, it rejected the claim that the city’s at-large voting system for its three-member city commission violated Section 2 by diluting Black citizens’ votes. It is important to note—although the Milligan opinion could have been more clear on this point—that vote dilution claims deal with how votes are aggregated, rather than whether individuals can cast votes. In both Bolden and Milligan, the plaintiffs argued that, while Black voters could exercise the franchise, the election system prevented them from actually electing their candidates of choice.
Pro-civil rights members of Congress were determined to respond to Bolden by amending Section 2. After lengthy negotiations, legislators struck a compromise in 1982 to enable effects-based vote dilution claims. While the amended Section 2 was originally applied to at-large elections and multi-member districts, it soon became a vehicle for challenges to single-member districts.9For an example, not cited by Milligan, of an early (yet unsuccessful) challenge to single member districts under the amended Section 2, see Terrazas v. Clements, 581 F. Supp. 1329 (N.D. Tex. 1984). The majority in Milligan confirmed that Section 2 applies to single-member districts. Allen v. Milligan, 599 U.S. 1, 39 n.9 (2023). Now, Section 2 explicitly bars any “voting qualification,” “prerequisite to voting,” or “standard, practice, or procedure” that has discriminatory effects.1052 U.S. Code § 10301. In its current formulation, Section 2 is violated “if, based on the totality of circumstances, it is shown that the political processes . . . are not equally open to participation by [a protected minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”11Id. at § 10301(b). The amended Section 2, however, clarifies that “nothing in [Section 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”12Id.
After Alabamians challenged their state’s post-2020 Congressional map under Section 2 (and the Fourteenth and Fifteenth Amendments), a three-judge district court panel preliminarily enjoined the map’s use.1328 U.S. Code § 2284 governs three-judge district courts, and 28 U.S. Code § 1253 provides for direct appeal to the Supreme Court from decisions of three-judge courts. To the pleasant surprise of many voting rights advocates, the Supreme Court ruled—on direct appeal—that the district court “faithfully applied” precedent, including Gingles, and that the record supported its conclusion that Alabama’s map likely violated Section 2. The plaintiffs demonstrated the likely existence of three preconditions established in Gingles. First, Black voters in Alabama could form a majority in a second compact district that would comply with traditional districting criteria, including population equality and respect for political subdivisions. Second, “there was ‘no serious dispute’” about factor two—that Black voters are politically cohesive—or factor three—that white voters typically vote as a bloc to defeat Black voters’ preferred candidates. Third, the Court affirmed the district court’s findings that, “under the totality of circumstances,” Black Alabamians likely lack equal access to the political process. In reaching this conclusion, the district court had acknowledged Alabama’s long history of discrimination and the severe racial polarization that characterizes Alabama elections.
Further, the Court rejected Alabama’s “‘race-neutral benchmark’ theory,” which would have dramatically reshaped Section 2 jurisprudence. Currently, to determine whether political processes are not equally open to minorities, courts consider whether minority citizens “face . . . bloc voting along racial lines” in the context of broader societal discrimination. Arguing that the current Gingles test requires racial proportionality in violation of Section 2, Alabama proposed doing away with this inquiry. Instead, the state sought to have the court compare the enacted map to a series of algorithm-created maps that did not take race into account. Since the enacted districting plan sufficiently “resemble[d]” these race-neutral, computer-generated maps, the state argued, Section 2 was not violated. None of the state’s “two million odd” maps, however, “contained more than one majority-minority district.”
The majority declined to accept Alabama’s invitation to upend decades of precedent. It held that Gingles does not require proportionality, because it only requires the creation of a majority-minority district when a minority community is sufficiently compact. A proportional representation requirement, by contrast, would mandate that the percentage of majority-minority districts be equivalent to the minority share of the state’s population—regardless of the minority group’s geographic distribution. This would be a problem because a district encompassing a widely dispersed minority population might not comply with “traditional districting criteria, such as being contiguous and reasonably compact.” This holding reflected the background principle that failure to comply with traditional districting principles may give rise to the inference that race was—impermissibly—the predominant factor in line drawing.14See Cooper v. Harris, 581 U.S. 285, 308 (2017); Shaw v. Hunt, 517 U.S. 899, 905 (1996). The court also rejected Alabama’s two secondary arguments: that Section 2 does not apply to single-member districts and that “§2 as interpreted in Gingles exceeds” Congress’s authority to enforce the Fifteenth Amendment.
The Roberts Plurality
Chief Justice Roberts’ plurality—the portion of his opinion Justice Kavanaugh did not join—rejected Alabama’s argument that “illustrative maps that plaintiffs submit to satisfy the first Gingles precondition [must not be] ‘based’ on race.” Affirming longstanding precedent that districting plans may be informed by race, the plurality noted that “there is a difference ‘between being aware of racial considerations and being motivated by them.’” In fact, the first step of the Gingles analysis—to determine whether a majority-minority district can be drawn—requires consciousness of race. However, if racial considerations are the predominant or overriding factor in the selection of a map, or if “race-neutral considerations come into play only after the race-based decision had been made,” the resulting districting plan will be struck down—unless there is a compelling reason for the racial motivations.
Though it’s not always easy to distinguish racial predominance from racial consciousness, the plurality said, “the line between [the two] was not breached here.” Plaintiffs relied on maps created by an expert, Bill Cooper, who testified that, while he took race into account, he gave it the same weight as other factors, including compactness, contiguity, and population equality. The plurality noted that the district court—which heaped praise on Cooper—found negligible evidence of any racial predominance in the expert’s districting plan.
The plurality then took on Justice Clarence Thomas’s contention, in dissent, that race did predominate because the plaintiffs’ experts aimed for “express racial target[s]” by seeking to create two majority-Black districts. The Chief Justice rejected this argument for two main reasons. First, the dissent improperly relied on Bethune-Hill v. Virginia State Bd. of Elections, a 2017 case where the Court was “unwilling to conclude that a State’s maps were produced in a racially predominant manner” and held that racial targets are “just one factor among others [in a] holistic analysis.” Dissenting in Bethune-Hill, Justice Thomas concluded that a racial target necessarily indicated racial predominance—but “the Court did not join in that view.” Second, the plurality said, the dissent’s argument failed because it would have required the Court to overrule Gingles entirely. “[T]he whole point of the enterprise,” Chief Justice Roberts wrote, is to determine whether a majority-minority district can be drawn, which requires consideration of racial population targets. By the dissent’s logic, “every single illustrative map ever adduced” under Gingles would be impermissibly infected by racial predominance.
The Kavanaugh Concurrence
Justice Kavanaugh agreed that Alabama’s map ran afoul of Section 2 and that accepting the state’s arguments would have meant overruling Gingles. In addition, he raised four points. First, he argued, courts should be more hesitant to overrule statutory precedent—such as Gingles—than constitutional precedent because “the Court has ordinarily left the updating or correction” of statutory case law to the political branches, which have allowed Gingles to go “[un]disturbed” for nearly four decades. Second, Justice Kavanaugh rejected Alabama’s contention that Gingles requires proportional representation for minority groups, in violation of Section 2(b) of the Voting Rights Act. If Gingles required proportional representation, “[s]tates would be forced to group together geographically dispersed minority voters into unusually shaped districts.” But Gingles only requires the creation of a majority-minority district when the minority group is “geographically compact” and the district would respect other “traditional districting criteria, such as county, city, and town lines.” In a footnote, he added that courts should “rigorously apply” these standards, and he noted positively that some of the plaintiffs’ proposed maps “respect county lines at least as well” as Alabama’s map. Third, Justice Kavanaugh addressed Alabama’s argument that the state’s map complies with Section 2 because it “resembles” race-blind computer simulations of districting—run by the state’s experts—which did not produce two Black-majority districts. While the Justice conceded that simulations could be useful for determining if the state intentionally discriminated, he emphasized that Section 2 “establishes an effects test, not an intent test,” which requires states to consider voters’ race.
Justice Kavanaugh concluded his brief concurrence with a statement that has already invited further litigation and which raises questions about the future of Section 2. While he agreed with the majority that Section 2, as applied through Gingles, does not exceed Congress’s constitutional authority, Justice Kavanaugh questioned how long that authority may endure. He pointed out that Justice Thomas, dissenting, “note[d] . . . that . . . the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Yet, because Alabama did not raise this issue before the Court, Justice Kavanaugh declined to consider the question “at this time.”
Lingering Questions about Section 2 Time Limits and Racial Predominance in Districting
Alabama’s resistance to the district court orders requiring an additional Black opportunity district was unprecedented: “We are aware . . . of no other case,” wrote the district court, where a “state legislature, faced with a federal court order . . . requiring a plan that provides an additional opportunity district, responded with a plan that the state concedes does not provide that district.”15Singleton v. Allen, No. 2:21-CV-1291-AMM, 2023 U.S. Dist. LEXIS 163008, at *12–13 (N.D. Ala. Sep. 11, 2023). Alabama pursued this course of action because it perceived that Justice Kavanaugh—who appears to be the swing vote on Section 2—gave them an opening to do so. By suggesting that race-conscious remedial redistricting may be time-limited, he has invited further challenges to the constitutionality of Section 2—even though the Court ultimately ruled against Alabama in this latest chapter of Milligan.
Confusingly, Justice Kavanaugh declined to explicitly endorse the plurality’s conclusions that (1) there is a line between (impermissible) racial predominance and (permissible) racial consciousness, and (2) the district court did not cross this line in Milligan. He did not say where he thinks the line is, nor did he opine on whether the district court or the plaintiffs had stepped over it. Requesting the stay, Alabama sought to exploit this gap in the majority opinion, arguing that the district court ruling striking down its new plan “commanded that race come first and all other criteria come second.” In fact, the state pointed out that only four justices signed on to the conclusion that race did not predominate in the plaintiffs’ illustrative maps with two opportunity districts. This, the state contended, supported the conclusion that Milligan “did not equate §2 compliance with adding majority-minority districts.” While the Supreme Court rebuffed Alabama’s stay request, it has not explicitly rejected this argument, which the state will likely make—in some form—in future appeals.
Despite Alabama’s apparent confidence in its arguments, it is difficult to know what conclusions to draw from Justice Kavanaugh’s refusal to join Part III-B-1. Because he agreed, in his concurrence, that courts sometimes must account for voters’ race, he likely believes that there is some line between racial consciousness and predominance. And if he thought the district court crossed this line and let race predominate, would he have voted to affirm? Probably not. It seems more plausible that Justice Kavanaugh took issue with Justice Roberts’ reasoning, rather than his ultimate conclusions. Justice Kavanaugh might have been reluctant to endorse the plaintiffs’ experts methodology, the plurality’s approval of “racial targets,” or Roberts’ contention that the dissent misapplied Bethune-Hill.
While it’s impossible to determine why Justice Kavanaugh declined to sign on to the plurality section, he has given Section 2 defendants an opening to exploit what they perceive as gaps between him and the other four justices in the majority. These efforts will go hand in hand with the argument, also invited by Justice Kavanaugh, that Section 2—as currently applied—must sunset. Georgia, defending its congressional and state house maps from a Section 2 challenge, is already contending that race predominates in its plaintiffs’ illustrative maps and that the Voting Rights Act is unconstitutional because its “inherently race-based remedies are not justified by present conditions.” Across the nation, states and local jurisdictions will follow Alabama and Georgia’s lead, further threatening the crown jewel of civil rights laws.
The author would like to thank Professor Richard Briffault for helping him interpret and contextualize the Milligan decision.
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