Merrill v. Milligan

Drawing congressional maps is often a contentious process, and the recent undertaking in Alabama is no exception. Despite the 2020 census showing that the number of Black voters in the state increased by 3.4%, the number of majority-minority districts did not increase. The map, which was drawn by state legislators, was challenged in a federal district court in three separate suits filed by various activist and voter groups. They argued that given the demographics of the state, the new map should have created an additional majority-minority district. These districts, which are composed of a majority of ethnic or racial minorities, ensure minority representation in Congress. They also argue that the map violates the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act of 1965. The latter prohibits electoral procedures that result in fewer opportunities for minorities to elect their preferred candidates and does not require proof of discriminatory intent. Drawing electoral maps in a way that reduces the voting power of minority groups is among the practices it prohibits. 

The District Court for the Northern District of Alabama sided with the petitioners in all three cases and enjoined the map. The court found that the petitioners would likely prevail under Section 2 claims, concluding that an additional reasonably compact majority-minority district could be drawn. They decided the case on statutory grounds so as to avoid constitutional interpretation, which left the Equal Protection Clause question unanswered. The decisions in two of the cases were upheld by the Court of Appeals for the Eleventh Circuit, but the third case was granted a certiorari before judgment by the Supreme Court, which ordered stay of the district court’s injunction due to the Purcell Principle. Oral arguments took place on October 4, 2022, and a decision is expected by June 2023. The question before the Court is whether Alabama’s map violates Section 2 of the Voting Rights Act of 1965. 


Alabama is advancing two arguments. The first focuses on a reinterpretation of the Gingles Test, which is the standard used by the courts to determine whether vote dilution has taken place. Specifically, they argue that the first prong of the test should be race neutral. They argue that drawing a second majority-minority district would require the state to consider race as a dominant factor, which would make the map unconstitutional as it would be gerrymandered on the basis of race. They also propose that when federal and state guidelines are in conflict, the state’s policy preferences should be respected. Their second argument is that Section 2 does not apply to single-member districts, which is how 429 of the 435 voting members of the House of Representatives are elected (i.e., one representative per district). Amici curiae in favor of Alabama were filed by many parties, including the Republican National Committee, Louisiana, and Citizens United (of Citizens United v. FEC fame). 

The respondents argue that race can and should be used when drawing congressional maps as this ensures proper representation. They argue that the map was a result of packing and cracking, resulting in the high concentration of Black voters in one district and the dilution of Black voters in the remaining districts. Additionally, they argue that accepting the state’s race neutral approach would allow for even further dilution of minority voters. Amici curiae in support of the respondents include the current Solicitor General, the Southern Poverty Law Center, and a group of computational redistricting experts. 


Recent case law suggests the Court is preparing to weaken the law even further. In Shelby v. Holder (2013), the Court ruled that the coverage formula of the Voting Rights Act was unconstitutional, making it much easier for states to change electoral processes and laws. In the opinion for Brnovich v. Democratic National Committee (2021), Justice Gorsuch suggested that private individuals may not have the right to sue to enforce Section 2, which would make it harder to enforce the act. Although the Court’s decision is unknown at this time, recent cases, the composition of the Court, and the line of questioning during oral arguments suggest that key provisions of the landmark legislation will be struck down. 

Eric Martinez is from Los Angeles, CA, studying Political Science

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