By the State and Local Legal Center
In Merrill v. Milligan the U.S. Supreme Court will decide whether Alabama’s 2021 congressional redistricting plan, which contains one majority-Black district, violates Section 2 of the Voting Rights Act.
The challengers, Caster and Milligan Respondents, claim the plan unlawfully dilutes the votes of the state’s Black population and should contain a second majority-Black district. The three-judge panel having original jurisdiction agreed, writing that a state redistricting plan violates Section 2 of the Voting Rights Act if it “provides less opportunity for racial minorities [than for other members of the electorate] to elect representatives of their choice.”
The three-judge panel continued: “[A] plaintiff may allege a § 2 violation in a single-member district if the manipulation of districting lines fragments [cracks] politically cohesive voters among several districts or packs them into one district or a small number of districts, and thereby dilutes the voting strength of members of the minority population.”
The panel found that Black Alabamians, 27% of the state’s population, are sufficiently numerous to constitute a voting-age majority in a second geographically compact congressional district; that voting in the challenged districts is intensely racially polarized; and that under the totality of the circumstances, Black voters have less opportunity than other Alabamians to elect congressional candidates of their choice.
The three merits briefs in this case raise multiple issues, and it is difficult to know what the Supreme Court will focus on.
Alabama argues that the congressional districts it designed don’t violate Section 2. Alabama points to the fact that “[p]laintiffs’ own witnesses testified about millions of possible race-neutral plans that, like Alabama’s plan, have no more than one majority-minority district. Plaintiffs were able to produce comparator plans with more majority-Black districts only by starting with a ‘nonnegotiable’ racial target and backfilling with other redistricting criteria after that target had been hit.”
Both respondents point out that the district court rejected Alabama’s argument that “race predominated in the plaintiffs’ preparation of their illustrative remedial districts.” Regarding plaintiffs’ expert simulations, the Caster Respondents claim that those simulations, “which were created for a different purpose and used different population data—did not account for all the relevant principles the illustrative plans considered.” Likewise, the Milligan Respondents argue that Alabama ignored that one of Milligan’s experts found “literally thousands” of maps with two majority-Black districts using randomized simulations.
Alabama also argues the Supreme Court can resolve this case by holding that Section 2 doesn’t apply to single-member districts (occupied by one officeholder). The Voting Rights Act applies to a “voting qualification,” a “prerequisite to voting” or a “standard, practice or procedure.” Alabama argues “[t]hese terms do not describe a single-member redistricting plan.”
Respondents point out that it is settled U.S. Supreme Court precedent that Section 2 applies to single-member redistricting. Moreover, the Milligan Respondents argue that “[e]ven the definitions for ‘practice’ and ‘procedure’ found in the dictionaries on which Alabama relies make clear that a single-member redistricting plan is both: It is a voting ‘practice’ because it sets forth the ‘operation’ by which voters select specific representatives, and it is a ‘procedure’ because it establishes the ‘[m]anner’ in which they do so.”
Finally, Alabama argues that if Section 2 requires “replacing neutrally drawn districts with race-based districts,” then the statute is unconstitutional as applied to single-member districts. “Requiring racial preferences in single-member districts exceeds any remedial measure the Fifteenth Amendment could authorize. And if these racial preferences are a necessary component of §2’s equal openness ‘touchstone,’ then §2 also runs headlong into the Fourteenth Amendment’s equal protection guarantee.”
Respondents disagreed that Section 2 raises constitutional concerns. Per the Caster Respondents: “Applying § 2 to single-member districts does not impose ‘an affirmative obligation to deploy racial preferences in redistricting.’ Section 2’s results standard requires more than disparate impact. It does not mandate additional majority-minority districts simply because they can be drawn.”
The State and Local Legal Center files amicus curiae briefs in support of states and local governments in the U.S. Supreme Court, conducts moot courts for attorneys arguing before the Supreme Court, and is a resource to states and local governments on the Supreme Court.