Yesterday the Supreme Court ruled 5–4 in Allen v. Milligan that Alabama’s congressional map likely violates Section Two of the Voting Rights Act. This outcome was a surprise: Last year, the Court had stayed a district-court decision by a three-judge panel that found such a violation. Justice Brett Kavanaugh, who had concurred in the stay, joined most of an opinion by Chief Justice John Roberts, who had dissented from the stay but yesterday wrote for the Court.
The majority seemed focused on applying the framework for vote-dilution claims previously established in Thornburg v. Gingles (1986)—except that focus is difficult to achieve on a standard that has tended to be amorphous and confusing for judges to apply. Gingles begins with three preconditions looking to a minority group’s geographical compactness and size, political cohesiveness, and the presence of a white majority that defeats the minority’s preferred candidates by voting as a bloc. Then the Section Two plaintiffs must show under a “totality of circumstances” test that the challenged political process is not “equally open” to minority voters. The Court admitted that this standard is fact-specific, requiring “an intensely local appraisal” of the challenged electoral mechanism along with an evaluation of “past and present reality.” Got that?
Roberts’ opinion did not make the standard for adjudicating Section Two claims any clearer. Alabama’s congressional map contained one majority-black district out of seven total—as did the last several maps stretching back decades. The plaintiffs argued that they were entitled to a second such district and submitted eleven illustrative maps showing how the map could be redrawn. It appeared to be enough for the Court that the maps were “reasonably configured” in their equal numbers and respect for political subdivisions.
But by what benchmark did the Court determine that Alabama’s map was not “equally open” to minority voter participation? The Court did not say, at least not explicitly. Far more clarity about this case is to be found in Justice Clarence Thomas’ dissent, the bulk of which argued that to the extent Section Two applies to districting plans, any “districting benchmark must be race neutral: It must not assume, a priori, that an acceptable plan should include any particular number or proportion of minority-controlled districts.” Any other benchmark “would render the vote-dilution inquiry fundamentally circular, allowing courts to conclude that a districting plan ‘dilutes’ a minority’s voting strength ‘on account of race’ merely because it does not measure up to an ideal already defined in racial terms.” Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett joined Thomas on this component of his dissent, though only Gorsuch joined Thomas elsewhere in challenging the application of Section Two to districting in the first place.
Thomas’ dissent exposed the elephant in the room—that the starting point of plaintiffs’ maps was the proportional allocation of political power based on race. That clearly flouted the explicit text of the 1982 amendments to Section Two, which set forth “[t]hat nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” In the face of that statute, the majority acknowledged that “[f]orcing proportional representation is unlawful and inconsistent with this Court’s approach to implementing §2”—a cautionary note for future litigants who would read too much into the decision.
But in this case, proportionality was precisely what the plaintiffs’ demand of two minority-controlled districts would mean. Illustrative of this reality was statistical evidence gathered from the plaintiffs’ mapmaking experts employing race-neutral algorithms in which, as Thomas observed, “over 2 million race-neutral simulations did not yield a single plan with two majority-black districts, and even 20,000 simulations with a one-majority-black-district floor did not yield a second district with a black voting-age population over 40%.” The “mere possibility of drawing two majority-black districts” did not “show that a one-district map diluted black Alabamians’ votes relative to any appropriate benchmark.” The true benchmark, racial proportionality, “was camouflaged by the elaborate vote-dilution framework we have inherited from Gingles,” Thomas asserted. For that matter, the majority did not acknowledge that the district court it was affirming had engaged in “express proportionality-based reasoning.”
Justice Alito issued another dissent, joined by Gorsuch, that made similar observations and argued for the application of Gingles with greater adherence to Section Two’s text; the district court failed to consider whether the plaintiffs had met their burden to “show[] that their illustrative districts were created without giving race a ‘predominant role.’” Both Thomas and Alito articulated concerns about interpreting Section Two in any way that runs afoul of the Constitution’s prohibition of the use of race as a predominant factor in districting.
There was a section of the chief justice’s opinion that Kavanaugh did not join and therefore reflected only a plurality of the Court. It stated that “being aware of racial considerations” is “permissible”—even required by Section Two—while “being motivated” predominantly by race “is usually not.” But “the line between racial predominance and racial consciousness” was somehow “not breached here.”
It is unclear whether Kavanaugh found that language as convoluted as do many of us who are observing this case. But he issued an opinion concurring in part in which he noted a point mentioned by Thomas—that “the authority to conduct race-based redistricting cannot extend indefinitely into the future”—and added that he is not now considering that question since Alabama did not raise it.
In the meantime, expect this area of the law to remain murky—with lower courts feeling emboldened to silently employ a de facto proportionality standard until a future case results in more rigorous adherence to the text of the Voting Rights Act.