Gerrymander Gazette: Last Week’s Huge Win

June 12, 2023

Voting rights advocates won a crucial victory last week. Let’s talk about what happened and how it gives new life to redistricting cases Common Cause and our allies are currently litigating. In Allen v. Milligan, the U.S. Supreme Court rejected an effort by the state of Alabama to severely weaken Voting Rights Act protections provided to communities of color in redistricting. In doing so, it also ruled that Alabama illegally diluted the votes of Black residents by drawing only one out of seven congressional districts in which Black voters could elect their preferred candidate.  

First and foremost, a huge congratulations should go out to the plaintiffs and their attorneys. With big wins comes big lists, so here you go. One of the plaintiff groups – Evan Milligan, Shalela Dowdy, Letetia Jackson, Khadidah Stone, Adia Winfrey, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP – were represented by NAACP LDF, ACLU, Hogan Lovells, and Wiggins Childs Pantazis Fisher & Goldfarb. The other plaintiff group –Marcus Caster, Lakeshia Chestnut, Bobby Lee Dubose, Benjamin Jones, Rodney Allen Love, Manasseh Powell, Ronald Smith, and Wendell Thomas – were represented by the Elias Law Group and Quinn, Conner, Davis, & Rouco.  

The Gingles Test 

Section 2 of the Voting Rights Act prohibits discriminatory election practices or procedures. In a 1986 case called Thornburg v. Gingles, the Supreme Court outlined the framework to apply Section 2 to redistricting. The multi-step “Gingles test” the Court created determines whether mapmakers must draw a voting district in which communities of color can elect their preferred candidate. The dispute in Milligan focused on just one element of that test: whether there were enough Black voters to draw a second majority-Black congressional district in Alabama that is reasonably configured (I.e., not goofy looking). 

What Happened in Milligan? 

In its briefs and oral arguments, Alabama sought to eliminate the Gingles test and make it nearly impossible for redistricting plaintiffs to win these type of Voting Rights Act cases. Alabama’s attorneys argued that a map can clear Section 2 scrutiny if it’s drawn using race-neutral criteria. As the Justices noted in last week’s opinion, this interpretation would turn Section 2 on its head because this provision of the Voting Rights Act is supposed to turn “on the presence of discriminatory effects, not discriminatory intent.”  

Allowing a map that discriminates against communities of color simply because legislators say they used race-neutral methods defies the very purpose of Section 2. Or, as the majority opinion written by Chief Justice John Roberts states, “we find Alabama’s new approach to Section 2 compelling neither in theory nor in practice.” The Supreme Court preserved the Gingles test and held that the trial court below “correctly found that black voters could constitute a majority in a second district that was ‘reasonably configured.’” 

Wind at our Backs 

The decision in Milligan gives new life to several redistricting cases making their way through the federal courts. The Fair Maps Texas Action Committee that Common Cause helps to lead is a plaintiff in a consolidated lawsuit challenging Texas voting maps as a violation of Section 2. In Louisiana, a very similar set of facts could mean that plaintiffs seeking to compel legislators to draw a second majority-Black congressional district are now in a very strong position to win.

There are also active cases challenging maps under Section 2 in Arkansas, Georgia, Kansas, Michigan, Mississippi, North Dakota, and Washington. In addition, Common Cause is a plaintiff in racial gerrymandering cases based on 14th Amendment equal protection in Georgia and Florida. Legal challenges to fight back against racial discrimination in redistricting are alive and well. Now let’s go win them!