Emory Undergraduate Journal of Law & Society

Introduction/Background

Voting rights and voter suppression have been ongoing issues in the United States for over a century. The establishment of the 19th Amendment and the Voting Rights Act of 1965, and the entrance into the modern era, led many to believe that voting laws and elections in our country were finally truly equal. Yet, in 2023 we still see attempts by governments to suppress voting rights and affect election outcomes. Just last year the Supreme Court decided on Allen v. Milligan, another attempt to undermine equal representation in elections. The state of Alabama’s 2020 census recorded a 66% white population and a 34% Black population [1]. However, before the 2022 Congressional elections, Alabama adopted a new districting plan which established one majority Black district with the rest of the Black community being distributed as the minority amongst the other six districts. This plan was challenged, with the opposition claiming that by distributing small amounts of Black citizens amongst the majority of districts, the state government was minimizing Black representation in the upcoming elections. The opposition claimed the plan to be a violation of Section 2 of the Voting Rights Act, which banned racial discrimination in voting policies. A district court agreed with the challengers and ordered the state to draw a new map and create a new plan, which “will need to include two districts in which Black voters either comprising a voting-age majority or something quite close to it.” [2] The state of Alabama responded by appealing the decision to the Supreme Court and freezing the district court’s injunction.

Framework

The Court used the framework from Thornburg v. Gingles, 478 U.S. 30 (1986) to evaluate whether or not the actions of the state of Alabama were in violation of Section 2 of the Voting Rights Act. The three-part framework stated the following requirements for the actions to be ruled as a violation [3]:

1. The Plaintiffs must prove that the minority group in the situation is sufficiently large and geographically compact enough to constitute being considered a majority in a particular district.
2. The Plaintiffs must prove that the minority group in the situation is still politically cohesive.
3. The Plaintiffs must prove that under all the circumstances of the situation, the political process is not “equally open to” minority voters, By working with governmental departments in the state of Alabama and the plaintiffs the Court reviewed maps and data in order to prove each part of the framework. They concluded that the new
   redistricting plan of the state of Alabama was a violation of Section 2 of the Voting Rights Act.

Decision/Dissents

In a 5-4 decision, the Supreme Court ruled that Alabama’s redistricting plan for its United States House of Representative seats violated Section 2 of the Voting Rights Act. Using the framework stated in Thornburg v. Gingles, 478 U.S. 30 (1986) for evaluating claims brought under Section 2 of the Voting Rights Act, the court used records and maps from the state as evidence for each of the requirements listed in the framework. Chief Justice Roberts was joined by Justice Sotomayor, Kagan, Kavanaugh, and Jackson in the majority decision of the ruling, with Justice Thomas, Alito, Gorsuch, and Barrett dissenting. Justice Clarence Thomas wrote a dissent that was heavily discussed in the media, in which he wrote that the decision would force “Alabama to intentionally redraw its longstanding congressional districts so that Black voters can control a number of seats roughly proportional to the Black share of the State’s population. Section 2 demands no such things, and if it did, the Constitution would not permit it.” [4] The decision led to the Supreme Court instructing the District Court for the Northern District of Alabama to draft a new map.

Analysis

The initial map drawing, as well as the dissent from Justice Thomas, is evidence that attempts at voter suppression are still occurring today. Justice Thomas’ claim that it would be wrong to have a portion of House seats elected by Black voters in Alabama, goes against the main goal of equal representation in United States elections. He also claims that the attempt at equal representation in Alabama was not the goal of Section 2 of the Voting Rights Act. However, the Act specifically states that it “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups,” [5] which accurately describes what is happening in Alabama. Despite the efforts of the majority in the Supreme Court, in July of 2023, the Alabama state legislature drew a new district map that still included only one Black-majority district but increased the proportion of Black voters in a second district. This decision was met with significant opposition once again. Alabama’s governor stated that, “The legislature knows our state, our people, and our districts better than the federal courts or activist groups, and I am pleased that they answered the call, remained focused and produced new districts ahead of the court deadline”. [6] The state’s ongoing attempt to depress the political influence of its Black population despite the Supreme Court’s ruling will likely be brought into question once again as the new map will be brought to the district court for approval in the Fall of 2023. Actions by the state of Alabama join a long list of modern-day attempts at voter suppression in the United States. As the 2024 election nears, a rise in voter expansion bills has been recorded. The Brennan Center for Justice reported that in 2023 thus far state legislatures have introduced 150 restrictive voting bills. With voter suppression being an ongoing issue in the United States, we can expect more cases like Allen v. Milligan in the near future.

Citations

[1] “Allen v. Milligan.” Merrill v. Milligan (now Allen v. Milligan) | League of Women Voters, June 8, 2023.
https://www.lwv.org/legal-center/merrill-v-milligan.

[2] Chandler, Kim. “Alabama Lawmakers Refuse to Create a 2nd Majority-Black Congressional District.” PBS, July 21, 2023. https://www.pbs.org/newshour/politics/alabama-lawmakers-refuse-to-create-a-2nd-majority-black-congressional-district.

[3] “Allen v. Milligan.” Oyez. Accessed October 1, 2023. https://www.oyez.org/cases/2022/21-1086.

[4] “Section 2 of the Voting Rights Act.” Civil Rights Division, April 5, 2023. https://www.justice.gov/crt/section-2-voting-rights-act#:~:text=Section%202%20of%20the%20Voting%20Rights%20Act%20of%201965%20prohibits,)(2)%20of%20the%20Act.

[5] “Allen, Alabama Secretary of State, ET AL. v. Milligan ET AL.” Supreme Court of the United States, October 2022. https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf.

[6] Ibid.