THE SUPREME COURT DILUTES MINORITY VOTER RIGHTS: THE FATE OF THE VOTER RIGHTS ACT FOLLOWING MERRILL V. MILLIGAN

By: Justin Oakland, Volume 106 Staff Member

Following the 2020 census, a Republican-majority Alabama state legislature voted to redraw congressional districts to functionally dilute the voting power of Black residents.[1] Despite Black voters making up 26.8 percent of Alabama’s population, the redrawn districts only grant Black voters one district of significant representation with the remaining districts lacking adequate voting power.[2]

On January 24, 2022, the U.S. District Court found that “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress.”[3] In a thorough application of Supreme Court precedent, the court ruled that the newly drawn districts were a likely violation of Section 2 of the Voting Rights Act that protects minority populations from voter dilution.[4] In doing so, the court ordered the legislature to redraw the map to adequately represent minority voters.[5]

This win for social-justice advocates and Black voters was short lived as Alabama filed an emergency appeal to the Supreme Court. In a 5–4 decision, the Court voted to grant a stay of proceedings, stopping the lower court’s order and declining to decide the case on its merits until after this election cycle.[6] The Court justified this by stating that Alabama’s “imminent” primary election warranted a failure to consider the case on its merits.[7] In doing so, the Supreme Court discounted well-established precedent and disregarded the lower court’s diligence, setting the stage for further erosion of voter protection rights.

In response to cases permitting racial gerrymandering in the height of the Civil Rights Movement,[8] Congress enacted the Voting Rights Act of 1965 (“VRA”).[9] The VRA sought to aid Black voters in overcoming barriers interfering with their rights under the Fifteenth Amendment.[10] Furthermore, Section 2 of the VRA prohibits voting procedures that deny citizens equal access to voting rights based on race, color, or membership in a minority group, as well as discriminatory voting practices.[11] Congress went on to amend the VRA in 1982 to guarantee equal protections to all voting citizens even in the absence of intent to discriminate.[12] Therefore, even a “racially neutral policy” will not save a voting procedure that “denies minorities fair access to the process.”[13]

Section 2 of the VRA concerns itself with minority vote dilution which includes redistricting plans that minimize the voting strength of Black voters.[14] Vote dilution is accomplished by fragmenting minority populations throughout districts to ensure a white majority.[15] Alternatively, legislatures can “pack” one district with a disproportionate concentration of minorities to give them representation in that district while keeping a white majority in all the others, as was done in Alabama this year.[16] These forms of gerrymandering pose a clear constitutional issue as to the equal protection and representation of minority voters.

The Supreme Court has long held that federal courts have jurisdiction in considering constitutional challenges to state and congressional redistricting.[17] While the Court has explicitly rejected to find partisan gerrymandering unconstitutional,[18] racially gerrymandered districts have been struck down for violating the Equal Protection Clause and Section 2 of the VRA.

The Court unanimously recognized the protections of the VRA in Thornburg v. Gingles.[19] The Court established three criteria for proving a vote dilution claim: (1) The minority group must be large and compact enough to constitute a majority in a district; (2) the minority group must be politically cohesive; and (3) the minority group must show that the majority votes sufficiently defeat a minority preferred candidate.[20] The Court would go on to affirm and bolster these principles in the following decades.[21]

The District Court meticulously applied the precedent established by the Supreme Court in Gingles, emphasizing that “[the] record supports only one finding: that voting in Alabama, and in the districts at issue . . . is racially polarized for purposes of the . . . Gingles requirements.”[22] Recognizing the implications of effectuating Alabama’s racially gerrymandered districts would pose on the 2022 election, the lower court ordered the legislature to redraft the electoral maps to comply with federal law.[23]

Despite Justice Kavanaugh’s assertion that “[t]he stay order does not make or signal any change to voting rights law,” [24] the Court’s decision to contravene precedent and allow the racially gerrymandered districts to remain in place sets the stage for an erosion of voting rights protection. The Supreme Court has slowly begun to whittle away at the VRA as the conservative Roberts Court struck down Section 4 in 2013.[25] While Justice Roberts dissented as to the stay of proceedings in the present case, stating that the district court properly applied precedent, he went on to cast doubt upon the future of vote dilution protection, proclaiming “Gingles and its progeny have engendered considerable disagreement and uncertainty.”[26]

When the Supreme Court revisits this case later this year, it is possible the Court will use the opportunity to continue to strip the VRA of its protections. Scholars fear that at least some of the conservative Justices will be attracted to Alabama’s “race-blind” reading of Section 2.[27] If the Court were to strike down this provision, legislatures would no longer need to consider the growing Black and Latinx populations when drawing electoral districts, and Democrats would lose the capacity to challenge these maps for being racially gerrymandered.[28] Robbing minority voters of having a significant voice in the Electoral College is unethical and a clear violation of the Fourteenth Amendment.

Even if the Court leaves Section 2 of the VRA in place, however, the Court’s justification for ordering a stay of proceedings sets a frustratingly dangerous precedent. While the Court made this decision absent oral arguments and largely without explanation, Justice Kavanaugh in his concurrence explains the stay was an exercise of the Purcell principle.[29] The principle dictates that courts should not alter election rules too soon before an election to prevent confusing voters and creating administrative problems.[30] Justice Kavanaugh stated that since the primary election was “just seven weeks from now” that this resulted in a stay of proceedings under Purcell.[31]

Interestingly, however, in 2020 the conversative Court had no problems altering an election one day prior to Wisconsin’s primary election by blocking an extension for absentee ballot submissions, siding with the Republican National Committee.[32] Furthermore, plaintiffs in the present case filed suit the day following its announcement.[33] Under Justice Kavanaugh’s rationale, even twenty-four hours after an unlawful redistricting announcement is made is too late to seek relief. The Court erred in its decision to evade analyzing the merits of this case and allow the racially gerrymandered districts to stand in the 2022 election, especially considering that the Alabama legislature had ample time to comply with the orders of the lower court.[34]

As voting rights are being attacked on multiple fronts, the Supreme Court must continue to uphold longstanding precedent and prevent the quashing of minority voters. As attempts at racial gerrymandering continue throughout the United States,[35] the Court should affirm the unconstitutionality of racial vote dilution under Section 2 of the VRA. In doing so, the Court can attempt to mitigate the damage they have already posed leading to the 2024 presidential election.

 

[1] Caster v. Merrill, No. 2-21-cv-1536, 2022 WL 264819, slip op. at 6 (N.D. Ala. Jan. 24, 2022).

[2] The only Black-majority district is District 7, which has been represented by a Black Democrat since 1992. See id. at 4.

[3] Id. at 4.

[4] Id. at 76.

[5] Id. at 3 (“[B]ased on the ample evidence of intensely racially polarized voting . . . [the] remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.”).

[6] See Merrill v. Milligan, 142 S. Ct. 879, 879 (2022).

[7] Id. at 880 (stating that the primary election’s absentee voting would begin in seven weeks on March 30, 2022).

[8] See Wright v. Rockefeller, 376 U.S. 52 (1964) (upholding gerrymandering that quashed the voting representation of Puerto Rican Americans in New York).

[9] Voting Rights Act of 1965, 52 U.S.C. §§ 10101–10702.

[10] See Virginia E. Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 Case W. Rsrv. L. Rev. 727, 744 (1998); U.S. Const. amend. XV.

[11] See Voting Rights Act of 1965, 52 U.S.C. § 10301.

[12] See Guidance Under Section 2 of the Voting Rights Act, 52 U.S.C. 10301, for Redistricting and Methods of Electing Government Bodies, U.S. Dep’t of Just. 2 (Sept. 1, 2021), https://www.justice.gov/opa/press-release/file/1429486/download [https://perma.cc/LY6M-4FVM].

[13] S. Rep. No. 97-417, at 207 n.117 (1982).

[14] See Everything You Always Wanted To Know About Redistricting But Were Afraid to Ask!, ACLU 7 (Apr. 2001), https://www.aclu.org/files/FilesPDFs/redistricting_manual.pdf [https://perma.cc/GN8C-D5JY].

[15] Id.

[16] Id.

[17] See Baker v. Carr, 369 U.S. 186 (1962) (finding that federal courts have jurisdiction to consider the constitutional challenges to state legislative redistricting); Wesberry v. Sanders, 376 U.S. 1 (1964) (ruling that the constitutionality of congressional districts could be decided by federal courts).

[18] See Gill v. Whitford, 138 S. Ct. 1916 (2018) (finding that plaintiffs lacked Article III standing to bring claim arising out of partisan gerrymandering).

[19] Thornburg v. Gingles, 478 U.S. 30 (1986).

[20] Id. at 49.

[21] See generally Miller v. Johnson, 515 U.S. 900 (1995) (finding that if race was a “predominant” factor in drawing lines, then the district is unconstitutional); Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254 (2014) (upholding Ginglesand ruling racial gerrymandering claims are to be considered district-by-district).

[22] Caster v. Merrill, No. 2-21-cv-1536, 2022 WL 264819, slip op. at 70 (N.D. Ala. Jan. 24, 2022).

[23] See id. at 3.

[24] Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (Kavanaugh, J., concurring).

[25] Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (ruling Section 4 of the VRA unconstitutional as it imposed an undue burden).

[26] Merrill, 142 S. Ct. 879 at 882–83 (Roberts, C.J., dissenting).

[27] See Nicholas Stephanopoulos, Alabama Urges a “Race-Blind” Theory of the VRA, Election L. Blog (Feb. 4, 2022), https://electionlawblog.org/?p=127440 [https://perma.cc/86L8-982L].

[28] See Amber Phillips, What the Supreme Court Decision in Alabama Means for Racial Gerrymandering, Wash. Post (Feb. 8, 2022), https://www.washingtonpost.com/politics/2022/02/08/what-supreme-court-decision-alabama-means-racial-gerrymandering [https://perma.cc/PDL4-QMFQ].

[29] See Merrill v. Milligan, 142 S. Ct. 879, 879–81(2022) (Kavanaugh, J., concurring).

[30] See Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006).

[31] See Merrill, 142 S. Ct. at 879 (Kavanaugh, J., concurring).

[32] See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020).

[33] See Merrill, 142 S. Ct. at 888 (Kagan, J., dissenting) (“The plaintiffs ‘commenced their lawsuits within hours or days of the enactment’ of Alabama’s plan in November 2021.”).

[34] See Caster v. Merrill, No. 2-21-cv-1536, 2022 WL 264819, slip op. at 3 (N.D. Ala. Jan. 24, 2022) (“[T]he court is confident the Legislature can accomplish its task: the Legislature enacted the Plan in a matter of days . . . the Legislature has been on notice since at least the time that this litigation was commenced . . . and the Legislature has . . . at least eleven illustrative remedial plans to consult . . . .”).

[35] See generally Ally Mutnick, North Carolina Supreme Court Strikes Down GOP-Drawn Congressional Map, Politico(Feb. 4, 2022), https://www.politico.com/news/2022/02/04/north-carolina-congressional-map-struck-down-00005974 [https://perma.cc/TJB3-W64Z] (illustrating the trend of state legislatures drawing election districts that result in unequal voting power).