In a consolidated case—Allen v. Milligan and Allen v. Caster—the Supreme Court determined that Section 2 of the Voting Rights Act (“VRA”) continues to apply nationwide to redistricting plans, as it has since 1986. The Court heard oral arguments on October 4, 2022. The case challenged whether Alabama’s 2021 plan for congressional voting maps violated Section 2, and the Court affirmed the District Court’s decision that the Alabama map did violate Section 2 and remanded the case for remedial proceedings. 

ELC represented Professors Jowei Chen, Christopher S. Elmendorf, Nicholas O. Stephanopoulos, and Christopher S. Warshaw as amici curiae in support of Appellees/Respondents.  In their brief, submitted to the Supreme Court on July 18, 2022, amici showed the limitations created by the three Gingles preconditions and the Court’s interpretation of them in the years since their creation in Thornburg v. Gingles, 478 U.S. 30 (1986), to dispel myths surrounding the effectiveness of Section 2.  Amici argued that overturning the district courts’ decisions would mean the Supreme Court would be responsible for undermining both the election of minority-preferred candidates and governmental responsiveness to minority interests, in violation of Congress’s clear instructions when it amended Section 2 of the VRA in 1982. 

BACKGROUND

Since 1993, Alabama has had one district that provides Black voters with the opportunity to elect their candidate of choice to the U.S. House of Representatives.  While there has been an increase in racial diversity in Alabama and a decrease in the proportion of white residents, representation has remained the same ever since.  Following the release of the decennial census in 2021, the Alabama legislature was required to redraw the boundaries of its congressional districts to ensure compliance with the constitutional requirement of “one person, one vote.”  Several sets of plaintiffs sued over the new congressional plan asserting that it violated Section 2 of the Voting Rights Act by diluting the voting power of Black voters in the state. 

In these cases, the district court concluded that the congressional plan denied Black Alabamians an equal opportunity “to participate in the political process and to elect representatives of their choice,” in violation of Section 2 of the VRA. The court found that that a second district could be drawn that would give Black voters the opportunity to elect a candidate of their choice to Congress. 

After the rulings, Alabama appealed to the Supreme Court in Milligan and the 11th Circuit of Appeals in Caster. The Supreme Court stayed the district court injunction in Milligan and granted immediate review of the case by the Supreme Court in Caster, forgoing a decision from the 11th Circuit. The Supreme Court will hear oral arguments in both cases on October 4, 2022. 

The goal of the brief filed by the Election Law Clinic was to inform the Court about the realities of Section 2 litigation and to detail what would happen if the Court endorsed a race-blind drawing of districts across the country.  Amici urged the court to reject Alabama’s proposal to render the first Gingles pre-condition “race-blind.”  Amici explained that the record for plaintiffs (typically minority voters) in redistricting cases under Section 2 of the VRA has been exceptionally unsuccessful.  Plaintiffs have lost almost three times out of four in statewide claims the last two redistricting cycles.   

There are two elements of the way courts apply the Gingles test that account for the inability for plaintiffs to achieve anything like proportional representation using Section 2 of the VRA.  The first Gingles pre-condition requires a minority population to be sufficiently large and geographically compact that a majority-minority voting district can be drawn—but the reality today is that many minority populations are too residentially dispersed to meet this requirement.  The third Gingles pre-condition requires proof that white voters regularly vote together to defeat minority voters’ candidates of choice (“white bloc voting”).  Again, the modern reality is that white voters’ opposition minority-preferred candidates does not hold in many areas of the country.  The result of these realities is that Section 2 of the VRA is only used sparingly, and, when used, it enfranchises the minority communities that are almost completely shut out of the political process. 

If the Supreme Court had endorsed Alabama’s proposed “race-blind” test under Section 2 of the VRA, it would have contradicted the text and purpose of the statute and would significantly reduce minority representation across the country. 

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