In a surprise win for voting rights activists, the U.S. Supreme Court breathed new life into the Civil Rights Act and may have paved the way to end Texas’s gerrymandered district.
The case, Allen v. Milligan, came from Alabama. After the most recent U.S. Census, the congressional maps were redrawn in a way that reduced Black representation. Though Black people make up a quarter of the population of the state, only one district was Black-majority.
The decision was written by Chief Justice John Roberts, who was joined by Brett Kavanaugh and the three liberal justices on the decision. It found that the new lines violated Section 2 of the Civil Rights Act, which allows claimants to sue if they believe that lines are drawn to disempower racial minorities. Recent arguments, including the State of Alabama in this case, have attempted to make it so that racially oppressive districts should only be struck down if the claimants can prove they were willfully discriminatory. Justice Kavanaugh rejected this argument in his concurrence.
“We. . . reject Alabama’s argument that §2 as applied to redistricting is unconstitutional under the Fifteenth Amendment. According to Alabama, that Amendment permits Congress to legislate against only purposeful discrimination by States. But we held over 40 years ago “that, even if §1 of the [Fifteenth] Amendment prohibits only purposeful discrimination, the prior decisions of this Court foreclose any argument that Congress may not, pursuant to §2 [of the Fifteenth Amendment] outlaw voting practices that are discriminatory in effect.”
Essentially, while the Fifteenth Amendment may or may not cover only blatant and stated racism, the court has repeatedly found that Congress may pass laws like the Civil Rights Act to counter the effects of discriminatory districts, intentional or not. This leaves Section 2 of the CRA in place and offers far more hope for minorities fighting gerrymandering.
With Allen decided, a slew of similar cases will not proceed. These include two from Texas, League of United Latin American Citizens v. Abbott and Petteway v. Galveston County. Both cases claim that new maps were drawn to specifically disempower minorities, and both were on hold while the Supreme Court decided Allen.
The two cases will likely go to trial now in district court. While anything can happen, the decision from the Supreme Court leaves little doubt on how the court will ultimately rule on Section 2 questions.
That said, with the 2024 primaries and general election looming, it is unlikely that a trial could conclude in time to redraw more fair and equitable maps before the next election. Texas Republicans defending the maps have many opportunities to run out the clock and perhaps hold power through the next cycle.
There’s a ton of writing about the decision out there – these two Slate articles can get you started if you need it, or if you’d rather have someone explain it to you, listen to this episode of the Amicus podcast. As far as what happens next and with other states, let’s start with TPM.
On top of this Court’s habitual hostility towards voting rights, the decision was all the more surprising given that a majority of justices had let the map stand and be used for the 2022 midterms, despite a lower court finding that the map likely diluted the Black vote in violation of the VRA.
The ruling fueled speculation about what the decision might mean for pending cases that will decide maps for 2024: One major prognosticator, the Cook Political Report, immediately shifted five seats in Democrats’ direction. It also prompted bitter reflection on what the Court’s opinion could have meant for the 2022 midterms, had the questions in the case been resolved sooner.
By issuing that unnecessary stay rather than letting the lower court’s order that Alabama redraw its maps proceed, the Supreme Court effectively axed a seat in the House of Representatives that almost certainly would have gone to the Democrats.
And the effect of their silent ruling likely touched other states — and other seats — as well.
“Similar litigation in Georgia and Louisiana — where lower court judges said they thought the VRA was probably violated but stayed their own opinions following the signal of the Supreme Court in Milligan — would likely have produced at least one more minority-opportunity district that would have elected a Democrat,” Doug Spencer, an associate professor of law and election law expert at the University of Colorado, told TPM.
Elections for those seats alone likely wouldn’t have been enough to swing the House, barring further ripple effects. But, as Spencer pointed out, they would have had “implications for the already challenging election of Kevin McCarthy, and his fragile coalition which would be even weaker.”
The McCarthy-led Republican majority controls the House by just a handful of seats — 222 to Democrats’ 212 — complicating the speaker’s efforts to get a majority of Republicans to follow his lead on votes and even on questions of strategy.
Thursday’s decision will also almost certainly have a significant effect on the 2024 elections, when Democrats will battle to overcome Republicans’ slim majority and take back the chamber. Some of that stems from ongoing litigation.
“I imagine that Democrats might pick up five to six seats max from litigation in Georgia, Louisiana, and Texas,” Spencer calculated.
The Cook Political Report’s Dave Wasserman tweeted that among the five seats the organization is now shifting bluer, two formerly solid Republican seats will likely end up being solid Democratic ones.
Democracy Docket, a Democratic-aligned website that tracks redistricting cases, found that Thursday’s decision will affect redistricting cases in Alabama, Arkansas, Georgia, Kansas, Louisiana, Michigan, Mississippi, North Dakota, Texas and Washington — though the states Spencer tallied plus Alabama will likely have the most direct effect on congressional seats.
And here’s Democracy Docket.
This landmark decision will have a reverberating and largely positive impact on active litigation involving Section 2 claims across 10 different states. According to Democracy Docket’s database of 63 active redistricting cases, 31 cases allege Section 2 claims and are currently pending in federal court. Many of these cases involve maps that were drawn during the decennial redistricting process after the release of 2020 census data.
The vast majority of ongoing Section 2 cases mount challenges to maps in southern states such as Georgia, Louisiana, Mississippi and Texas, all of which share invidious histories of enacting racially discriminatory maps and were previously subjected to preclearance requirements under the now-defunct Section 5 of the VRA. Lawsuits across these states and others were brought to remedy alleged violations of Section 2 and to ensure that minority voters have the opportunity to elect candidates of their choice.
In addition to benefiting Alabama voters, the Court’s decision in Allen creates an opportunity for fairer maps to be adopted in states including Louisiana and Georgia, where litigation could result in the addition of a majority-Black congressional district in each of these states.
Two lawsuits that bring Section 2 claims are ongoing in Texas: One challenges the state’s congressional map and the other challenges the redistricting plan for Galveston County, Texas’ Commissioners Court.
Date filed: Oct. 18, 2021
Plaintiffs: League of United Latin American Citizens, U.S. Department of Justice, Fair Maps Texas, NAACP, Mexican American Legislative Caucus, Voto Latino and others
Argument: This case was consolidated with seven others. Collectively, the plaintiffs argue that the new district maps for Congress, the state House, the state Senate and board of education violate Section 2 of the VRA and the U.S. Constitution’s 14th and 15th Amendments. Specifically, the plaintiffs claim the maps were drawn to intentionally discriminate on the basis of race and dilute the voting strength of minorities.
Status: Litigation is ongoing in the district court and a trial has not yet been scheduled.
Date filed: Feb. 15, 2022
Plaintiffs: Galveston County voters, Department of Justice and NAACP
Argument: This case was consolidated with two others. The plaintiffs collectively argue that the new district lines for Galveston County’s Commissioners Court precincts are racially gerrymandered, cracking Black and Latino voters across the four districts in violation of the U.S. Constitution’s 14th and 15th Amendments. They also argue the map violates Section 2 of the VRA.
Status: Litigation is ongoing in the district court.
I was pretty pessimistic about those cases before, and now I’m somewhat less so. The case in Georgia is already referencing this decision, so perhaps that will give us a hint about what could happen here. But I’m going to stay in “I’ll believe it when I see it” mode for the time being – I’ve been bitten too many times. The Chron editorial board suggests some reasons to remain skeptical.
The decision could also have major implications for Texas, where nine federal lawsuits filed on behalf of Latino, Black and Asian voters contend that the Legislature’s new congressional and legislative maps are racially discriminatory. For instance, Texas gained two congressional seats from redistricting, owing to a population boom in the past decade. Latino Texans accounted for half of that population growth. But both the new districts were added in majority-white parts of the state. These days, whites and Latinos make up roughly equal percentages of the state’s population. But on the new map, 42 percent of districts are majority-white, and only 26 percent Latino.
Roberts’ willingness to recognize the deep political disadvantage for Black voters in Alabama does not necessarily mean that he believes similar levels of discrimination exist elsewhere in the country. In a past Voting Rights Act case, the court established a strict three-part test for determining whether a map violates the law: The minority group has to be geographically compact, politically cohesive and consistently thwarted by the majority in electing their preferred candidate. In places like Louisiana and Georgia, it will be relatively easy to make credible cases for similar hyper-minority districts in heavily Black parts of those states. But discriminatory gerrymandering claims in Texas may be less cut and dry.
Yes, Texas spent most of the past century flagrantly suppressing the votes of minorities with all-white primaries, poll taxes and voter purges. But even so, Texas these days has far more ethnic and ideological diversity than many of its Southern neighbors — and that means fewer Alabama-style hyper-minority congressional districts. In Alabama, almost all Black voters pick Democrats. But in Texas, it’s not unusual to see high percentages of Latino or Asian voters cast ballots for Republicans. The court could reasonably rule that since the voting patterns in Texas are less racially polarized, plaintiffs here have a less compelling argument.
Many of Texas’ voting-rights problems involve discriminating against minority voters through systematic, targeted suppression laws, and that ugly habit would be better solved by Congress than the Supreme Court. Two years ago, the House of Representatives passed the John R. Lewis Voting Rights Advancement Act, which would have done a world of good. Named for the late civil rights icon, it would have required the federal government to clear any change to electoral boundaries in a state or subdivision where the population of any racial or ethnic minority had increased by 10,000 or more since the previous Census. The legislation failed to pass the Senate, however, and has not been re-introduced in the new Congress.
So for now, we’re stuck relying on the Supreme Court. Let us hope that Justices Roberts and Kavanaugh continue to give minority voters their fair share of voting power.
I mean, draw us maps with a representative number of Latino districts and I’ll take my chances on how they vote. But yeah, we still need that updated Voting Rights Act, and we should be very wary about how Roberts and Kavanaugh will feel when the other states’ cases come to them. Until then, let’s take them at their word and see how far we can go with that. Mother Jones, Vox, Daily Kos, and the WaPo have more.