Supreme Court weighs Alabama's claim of "race-neutral" reading of voting rights in racial gerrymandering case
The Supreme Court on Tuesday heard arguments in a high-stakes Alabama redistricting case that could determine the ability of minority voters to use Section 2 of the Voting Rights Act to argue their electoral power has been diminished. The plaintiffs argued that Alabama's new congressional map dilutes Black votes, while the state claims its congressional districts are "lawful" and drawn in a "race-neutral manner."
At issue in the case, Merrill v. Milligan, is the map drawn by Alabama in 2021 for its seven seats in the U.S. House of Representatives. Currently, only one district is majority-Black, even though Alabama's population is 27% Black. The sole Black-majority district is the only one represented by a Democrat. Evan Milligan, who grew up in Alabama and is the executive director of Alabama Forward, which describes itself as a civic engagement group, sued, arguing the state should have two Black-majority districts.
A lower court panel of three judges, two of whom were nominated by then-President Trump, agreed with Milligan that Alabama should draw new maps so that the state has two majority-Black districts. But Alabama argued that the only way to create two majority-Black districts is to focus solely on race, which the state argues shouldn't be a consideration.
And earlier this year, the U.S. Supreme Court voted 5-4 to halt the redrawing of the congressional map ordered by the lower court, a blow for anti-gerrymandering advocates and Democrats who were hoping to add a second Black-majority congressional district for this year's midterm elections. The high court stayed the ruling against the 2021 map until it decided the case on the merits.
Alabama Solicitor General Edmund LaCour opened his argument on behalf of Alabama Republican Secretary of State John Merrill, the defendant, by stating that the state "conducted its 2021 redistricting in a lawful, race-neutral manner" that the plaintiff's argument "sets Section 2 [of the Voting Rights Act] at war with itself and the Constitution."
He pointed to computer simulations that generated maps with a "race-neutral criteria" that did not result in two majority-Black Congressional districts.
He argued that the proposed alternative maps provided by the plaintiffs divide the Gulf Coast, specifically the Black-majority city of Mobile, Ala., and the predominantly white Baldwin County, saying they're connected via their "French and Spanish colonial history."
In a news conference after the arguments, LaCour said that it's the plaintiffs, not the state, whose interpretation of the Voting Rights Act would be racially discriminatory in drawing districts.
"It's to prohibit racial gerrymanders, not to require states to draw them," LaCour said. "Section 2 has never been applied to require or guarantee some sort of maximum outcome for any racial group."
Liberal and conservative judges on the court pressed LaCour on whether his argument is centered around whether he wanted to rewrite Thornburg v. Gingles, a 1985 case that found that North Carolina's Legislature had discriminated against Black voters by diluting their voting power.
That 1985 case was a frequent topic throughout the oral argument. It established three tests for challenges to Congressional or legislative maps:
There is a racial minority group large and "geographically compact" enough to constitute a majority
The minority group is "politically cohesive" and tends to vote along similar party lines
A minority group can demonstrate the majority group votes sufficiently as a group to defeat the minority group's preferred candidate
LaCour said his argument is "not a departure from Gingles," and he's not asking for "dramatic" changes. He called on the court to set a "benchmark" by "clarifying that race cannot be the non-negotiable principle as part of Section 2 liability."
"If you read Section 2, then our maps are always going to be in court," he added, referencing the number of Black-majority congressional districts in Louisiana's maps that are also being challenged in court.
Plaintiffs prefer the "Singleton Plan," a map proposed by Democratic Alabama Senate Minority Leader Bobby Singleton, which contains the state's "Black belt" within two congressional districts and creates Black populations of 42.3% in one district and 49.9% in another.
Supreme Court Justice Elena Kagan, a liberal, said the plaintiffs have satisfied the preconditions set by Gingles.
"Under our precedent, it's a slam dunk," Kagan said of the plaintiffs' argument against the passed congressional map. "If you just take our existing precedent, the way it is, and the three judges below said this is an easy case. It's not one of the hard ones. It's not one of the boundary line cases. It was clear that the plaintiff satisfied the Gingles preconditions."
Plaintiffs said Alabama seeks "to upend the Section 2 standard that has governed redistricting for nearly 40 years."
Attorneys Deuel Ross and Abba Khanna, representing Milligan and others, criticized LaCour's reference to simulations, and questioned his definition and application of "race-neutral criteria."
At one point, when pressed by conservative Justice Samuel Alito about the "maximization" of minority districts, Ross said it would be satisfactory to utilize a plan that drew Black voters in districts where they're given "at least a fair chance — not even a guaranteed chance — to elect their candidates of choice in a second district."
U.S. Solicitor General Elizabeth Prelogar said Alabama's argument is a "destabilizing" interpretation of Section 2 and predicted that if they win this Supreme Court case, nothing would stand in the way of dismantling the remaining majority-Black congressional seat.
Supreme Court Justices Brett Kavanaugh and Samuel Alito, both conservative, questioned the plaintiff's attorneys over whether the proposed maps satisfy the compactness requirement. Kavanaugh called it "the critical point," while Alito suggested that there was more to a "reasonably configured" district than its compactness.
"Would you agree that whether a district is reasonably configured takes into account more than simply whether it is compact, but also whether it is the kind of district that an unbiased mapmaker would draw?"" Alito asked.
Ross responded that Section 2 is not about intent and said he's "not sure" if the bias of a mapmaker is relevant. He added that even on Alabama's redistricting criteria (compactness, contiguity, respect for communities of interest and political subdivisions), the "plaintiff's plans meet or beat Alabama."
The Supreme Court's ruling will have a major impact on the prohibition of discrimination on the basis of race or color, and whether states can racially gerrymander Congressional and legislative lines moving forward.
Jamal R. Watkins, a senior vice president at the NAACP, said that given the court's makeup, that he's "not feeling so good about what the outcome may be."
"The courts have been seen historically, as probably one of the last hopes for racial equity and inclusion," he said. "But this current Supreme Court — now we love that we have Justice Kentanji Brown Jackson, first Black woman on the court as a justice, but we know the cards are stacked against her — and us."
He warned that "if we don't stop Alabama from being able to advance a Congressional map that blatantly dilutes black political power across the state, then we're going to see this happen in other states."