In the most attention-grabbing of its four decisions today, the Supreme Court in Allen v. Milligan ruled by a vote of 5 to 4 that a three-judge district court soundly determined that the districting plan that Alabama had adopted for the 2022 congressional elections likely violated section 2 of the Voting Rights Act. The Court therefore affirmed the preliminary injunction that the district court had entered against that districting plan, which created only one district in which black voters constituted a majority of the voting-age population.
The Court’s ruling comes as a big surprise, not least because the Court had stayed the district court’s order from actually taking effect for the 2022 elections.
In this post, I will present a selective and succinct summary of the four opinions issued by various justices in the case. (The interested reader should read the full opinions.) I will aim in a separate post to offer some observations on these opinions, including what they might portend for the forthcoming rulings in the Harvard and UNC racial-preferences cases.
1. Chief Justice Roberts wrote the lead opinion, which garnered a majority of five justices (himself, Kavanaugh, and the three liberals) for all but one subpart (which Kavanaugh did not join).
Section 2 of the Voting Rights Act, as amended in 1982, provides that “No voting qualification or prerequisite to voting” shall be imposed “in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” It further provides that this standard is violated “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens . . . 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.” But “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” Got that?
The Chief explains that the Court has long used the “three-part framework” of Thornburg v. Gingles (1986) to evaluate section 2 claims. The district court in his judgment correctly applied that framework. (Pp. 9-15.) Alabama, he charges, was “attempting to remake our §2 jurisprudence anew” by insisting that a race-neutral benchmark be used to assess whether the political processes are “equally open” to black voters. The Chief finds Alabama’s “new approach to §2 compelling neither in theory [pp. 16-22] nor in practice [pp. 22-34].”
Justice Kavanaugh did not join subpart III-B-1 of the Chief’s opinion (pp. 22-25). In that part, the Chief observes that in considering race in the context of districting, “there is a difference ‘between being aware of racial classifications and being motivated by them.’” Further, race may not be the predominant factor in drawing district lines unless there is a compelling reason. He disagrees with Justice Thomas’s assessment that race did predominate in the two-majority-black-seat maps offered by the challengers, and he also says that the “inescapable consequence” of Justice Thomas’s position is that Gingles must be overruled.
2. In a solo concurrence, Justice Kavanaugh “emphasize[s] four points” (none of which, so far as I’m discerning, address why he did not join the Chief’s subpart III-B-a). I’ll highlight his first and fourth points:
Alabama is arguing that the Court should overrule Gingles, but the stare decisis standard is stricter for statutory precedents than for constitutional ones.
Alabama’s argument that section 2, as construed by Gingles to require race-based redistricting in certain circumstances, exceeds Congress’s remedial authority under the 14th and 15th Amendments. But that argument “is not persuasive in light of the Court’s precedents.” And even if Congress’s authority to conduct race-based redistricting cannot extend indefinitely into the future, Alabama did not raise that temporal argument.
3. Justice Thomas wrote a 48-page dissent. Justice Gorsuch joined the dissent in its entirety. Justice Alito and Justice Barrett joined major parts of it. (Except where I otherwise note, all three join Thomas.)
a. Restating his long-established position: Section 2 applies only to a “voting qualification or prerequisite to voting or standard, practice, or procedure.” It doesn’t apply to districting plans at all. (Pp. 2-5 (joined by Gorsuch).)
b. Section 2 requires a meaningful race-neutral benchmark, and no such benchmark can justify the district court’s finding of race dilution. (Pp. 6-11.)
c. The plaintiffs are seeking a proportional allocation of political power according to race. (Pp. 11-21.)
d. There is a conceptual gap between a “reasonable” plan and a proper benchmark. (Pp. 21-23 (Gorsuch and Barrett).)
e. The district court applied a benchmark of proportional control based on race. The majority does not acknowledge the district court’s express proportionality-based reasoning. (Pp. 24-35 (Gorsuch and Barrett).)
f. If the district court applied section 2 correctly, section 2’s application here is unconstitutional. Any power of Congress to require states to sort voters into congressional districts based on race must be via reasonably prophylactic legislation to deter constitutional harm. A race-based right to a “fair” distribution of political power cannot be implemented without requiring the very evils that the Reconstruction Amendments forbid. (Pp. 35-45 (Gorsuch and Barrett).)
4. In a 16-page dissent, Justice Alito, joined by Justice Gorsuch, objects that the majority has misapplied Gingles. A plaintiff who claims that a districting map violates section 2 because it fails to include an additional majority-minority district must show that such a district can be created without making race the predominant factor in its creation. The district court failed to consider whether plaintiffs had made such a showing.