The Supreme Court did something genuinely shocking on Thursday. It handed down a 5-4 decision in Allen v. Milligan that preserves longstanding safeguards against racism in US elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state.
Indeed, Chief Justice John Roberts’s opinion for the Supreme Court repeatedly chastises Alabama’s lawyers for their aggressive efforts to rewrite longstanding law in order to render much of what remains of the Voting Rights Act an empty husk. As Roberts writes in a particularly pointed swipe at those lawyers, “the heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our [Voting Rights Act] jurisprudence anew.”
Roberts’s opinion was joined in full by all three of the liberal justices, and was joined almost entirely in full by Justice Brett Kavanaugh,
Of course, the idea that a court should follow precedent isn’t supposed to be controversial. It’s supposed to be highly unusual for a court to turn its back on one of its own precedents.
But this is the Roberts Court we are talking about here, a Court that, especially after former President Donald Trump remade its membership, has been extraordinarily willing to toss out seminal precedents — and to dismantle the Voting Rights Act.
In Shelby County v. Holder (2013), for example, the Court simply made up a new constitutional principle — the so-called “‘fundamental principle of equal sovereignty’ among the States” — and relied on this newly fabricated idea to neutralize the provisions of the Voting Rights Act that required states with a history of racist election practices to “preclear” any new election laws with federal officials. Similarly, in Brnovich v. DNC (2021), the Court invented a slew of additional limits on the Act that appear nowhere in the law’s text, such as a presumption that voting restrictions that were commonplace in 1982 are lawful.
Given this history, when this Voting Rights Act concerning Alabama’s congressional maps came onto the Court’s docket, it was reasonable to expect the justices to apply similarly results-driven reasoning — inventing new limits on voting rights at will, without any regard to precedent or statutory or constitutional text.
And yet, Roberts’s opinion in Milligan is as much a celebration of stare decisis, the principle that courts should be reluctant to discard precedent, as it is a rebuke to Alabama’s attempt to effectively legalize racial gerrymandering. It is also the current Court’s first suggestion that its crusade against the Voting Rights Act may have limits.
What was at stake in Milligan?
Milligan involved a racially gerrymandered congressional map in Alabama, which gave Black voters a majority in just one of the state’s seven districts. As a practical matter, that meant that only 14 percent of the state’s delegation to the US House of Representatives would be chosen by Black voters, even though African Americans make up about 27 percent of the state’s population.
Several Alabama voters, including a state senator, challenged this law, arguing it violated Section 2 of the Voting Rights Act, which forbids states from enacting an election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Last year, a three-judge panel that included two Trump appointees agreed, releasing a 225-page opinion explaining why, under the framework the Supreme Court laid out in Thornburg v. Gingles (1986), this Alabama map could not stand. The lower court found that Milligan involved such a clear-cut violation of the Voting Rights Act that “we do not regard the question whether the Milligan plaintiffs are substantially likely to prevail on the merits of their [Voting Rights Act] claim as a close one.”
As Roberts explains in his Milligan opinion, Gingles requires voting rights plaintiffs to clear several hurdles before their case can proceed. Plaintiffs seeking an additional Black majority district, for example, must show that there are enough Black voters, living in a sufficiently geographically “compact” area, that such a district could plausibly be drawn. They must also show that these voters are “politically cohesive,” meaning that they tend to vote together for the same candidates, and that the state’s white voters also tend to vote “sufficiently as a bloc to enable it ... to defeat the [Black voters’] preferred candidate.”
And, even if they clear these bars, a voting rights plaintiff can only prevail if a court determines that a myriad of other factors, such as “the extent of any history of official discrimination in the state,” indicate that the political process in the state is not “equally open” to voters of color.
Without delving too deep into the weeds of the redistricting process in Alabama, suffice it to say that Roberts seems to agree with the lower court’s conclusion that these plaintiffs meet these conditions and that this is not a close case. The lower court’s factual determinations that Alabama’s redistricting process violated the various tests laid out in Gingles “have gone unchallenged by Alabama,” Roberts writes, adding that the lower court “faithfully applied our precedents.”
Alabama’s litigation strategy in this case consisted largely of dreaming up new restrictions that the Court could impose on plaintiffs alleging racial gerrymandering, many of which would have made it virtually impossible for such plaintiffs to prevail.
Current law, for example, requires plaintiffs seeking an additional majority Black district to submit sample maps which prove that it is possible to draw such a district — after all, there is no point to moving forward with a voting rights lawsuit if it is literally impossible for a court to give the plaintiffs the relief that they seek. The Milligan plaintiffs submitted several such maps.
Alabama, however, argued that, when drawing these sample maps, a voting rights plaintiff cannot pay too much attention to race. “If Gingles is to serve any gatekeeping role, race cannot predominate in the districts a plaintiff proposes to satisfy that precondition,” the state’s lawyers claimed.
But this proposed rule makes absolutely no sense, and seems designed to prevent any racial gerrymandering plaintiff from ever prevailing in court. Again, the purpose of these sample maps is to prove that it is possible to draw two majority Black districts in the state of Alabama. How on earth is a mapmaker supposed to complete this task without paying close attention to race?
In any event, Roberts rejects this and similar attempts to impose arbitrary barriers on voting rights plaintiffs. Alabama’s proposed tests, he writes, run “headlong into our precedent,” adding that the purpose of the sample maps is merely to demonstrate that “it is possible that the State’s map has a disparate effect on account of race,” and that other parts of the Gingles framework “determine whether that possibility is reality.”
That said, Roberts’s opinion does emphasize one important limit on racial gerrymandering suits — albeit a limit that derives from the Court’s previous decisions. A voting rights plaintiff may not demand that a state draw misshapen districts, which pull together voters of color from disparate communities throughout the state, in order to achieve an additional majority-minority district. To prevail, such a plaintiff must show that they can achieve their goal using reasonably compact districts that comport with “traditional districting criteria” such as keeping culturally similar communities together in the same district.
But, as Roberts writes, the Milligan plaintiffs’ proposed maps were not misshapen, and they “satisfied other traditional districting criteria.“ They “contained equal populations, were contiguous, and respected existing political subdivisions, such as counties, cities, and towns.”
These plaintiffs, in other words, did exactly what Gingles requires them to do. And a majority of the justices were not in the mood to blow up that precedent.
Now, Alabama will have to redraw its maps to ensure that the state has a second majority Black district.
So how optimistic should supporters of liberal democracy feel after this decision?
Though Roberts’s opinion does not repudiate past attacks on voting rights, such as Shelby County or Brnovich, it does provide a bit of an explanation for why his Court has recently been reluctant to favor Voting Rights Act plaintiffs. He effectively claims that these cases are now less likely to prevail than they were in, say, the 1970s, because America is less racially segregated than it used to be.
Recall that Gingles requires racial gerrymandering plaintiffs to prove that voters of color live together in a compact enough geographic area that it is possible to draw additional majority-minority districts. As Roberts writes, this means that “as residential segregation decreases ... satisfying traditional districting criteria such as the compactness requirement ‘becomes more difficult.’” Indeed, Roberts offers this as an optimistic explanation for why “since 2010, plaintiffs nationwide have apparently succeeded in fewer than ten” cases challenging a racial gerrymander under the Voting Rights Act.
Even if you take this explanation at face value, it does not explain most of the Court’s recent attacks on the Voting Rights Act. Residential desegregation did not rewrite the Constitution to create a “fundamental principle of equal sovereignty” that appears nowhere in that document. It also did not create Brnovich’s completely fabricated proposition that voting restrictions that were common in 1982 are presumptively legal.
But the tone of Roberts’s Milligan decision is also markedly different than the Court’s other recent Voting Rights Act cases. And its repeated emphasis on the fact that Alabama’s proposed rules would require “abandoning” longstanding precedent and “overruling the interpretation of [the Voting Rights Act]’ as set out in nearly a dozen of our cases” suggests that precedent will still play some role in the Court’s voting rights decisions. Milligan should also allay some fears that Supreme Court litigation is now a free-for-all where Republican lawyers can seek virtually any outcome they desire.
There’s also one more aspect of Roberts’s opinion worth noting. In 1982, President Ronald Reagan signed an amendment to the Voting Rights Act, albeit over considerable protest within his administration, which prohibited any state election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” This “results” test means that a state law may be struck down if it has negative effects on voters of color, even if the law was not written with racist intent.
One of the most vocal opponents of this expansion of the Voting Rights Act was a young Justice Department lawyer named John Roberts. As voting rights journalist Ari Berman writes, “Roberts wrote upwards of 25 memos opposing an effects test for Section 2.” He “drafted talking points, speeches and op-eds for” senior Justice Department officials opposing the amendment, and “prepared administration officials for their testimony before the Senate; attended weekly strategy sessions; and worked closely with like-minded senators on Capitol Hill.”
Nor did Roberts abandon this approach after joining the Supreme Court. Indeed, as chief justice, Roberts has at times suggested that any civil rights law that allows plaintiffs to prevail if they can show a disparate racial effect is unconstitutional.
On Thursday, Roberts finally hung up an ax he has ground for over four decades — his opinion seems to accept that the “hard-fought compromise that Congress struck” in 1982, which Roberts opposed so vociferously, is legitimate.
And he did so in an opinion that bolsters longstanding voting rights laws. And that will, at least in the short term, benefit the Democratic Party. It remains to be seen how the Court will handle future voting rights disputes, including an alarmingly high-stakes case before the Court this very term. But, as someone who has watched the Supreme Court’s voting rights decisions with alarm for more than a decade, my blood pressure dropped considerably when I read the Milligan decision.
We now know that there are attacks on the Voting Rights Act that even this Supreme Court will not embrace.