By: Dominic Enright
Volume X – Issue I – Fall 2024
I. INTRODUCTION
In democratic governments, voting serves as both a foundational right and a powerful tool for citizens to shape policy. America’s founding, rooted in Enlightenment ideals, espoused liberty, justice, and equality for all men. However, a history marred by centuries of slavery, the entrenchment of Jim Crow laws, and pervasive systemic discrimination reveals stark deviations from these founding values. Significant legislative victories have been won to secure equal access to the ballot with the Voting Rights Act of 1965 (VRA) [1] standing as one of the most monumental achievements of the American Civil Rights Movement.
Despite federal and constitutional protections, voter disenfranchisement still persists, manifesting as racial and partisan gerrymandering. These twin forces erode the very essence of fair representation, undermining the promise of “one person, one vote.” [2] By manufacturing electoral boundaries centered around race or partisan lean, state lawmakers wield redistricting as a tool to minimize the voice of targeted demographics. Although the Roberts Supreme Court is characterized by its conservative judicial philosophy and aversion to federal oversight in state election laws, the decision in Allen v. Milligan (2023) reveals a somewhat surprising scenario in which conservative justices concurred with the liberal minority to affirm voting rights as underpinned by the VRA. This ruling ultimately points to a greater issue: the undeniable partisan influence in redistricting. A consequence of this extremely flawed system is the struggle to find reconciliation between states’ sovereignty and the push for civil liberties which has been extensively debated in the courts.
i. The Voting Rights Act’s Legacy
The Voting Rights Act of 1965 was designed to protect the voting rights of all citizens and sought to fulfill the promise of equal access to the ballot by combating racial disenfranchisement. This legislation is armed with federal oversight powers in state elections with the objective of intervening on behalf of vulnerable communities. It enshrines fair representation into federal law by explicitly “prohibiting voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in Section 4(f)(2) of the Act.” [3]
ii. Background
On June 8, 2023 the Supreme Court of the United States upheld the lower court’s ruling that the state of Alabama’s congressional maps violated Section II of the Voting Rights Act of 1965. This landmark decision had massive implications for voting rights and redistricting in the United States. Following the 2020 census, the Alabama Legislature’s Committee on Reapportionment released a new map which included one oddly-shaped majority-black district, despite black citizens encompassing more than 27% of the state’s population. [4]
A group of citizens and civil rights advocates challenged the map arguing that the malapportioned districts dilute the electoral power of black voters in the state which is in direct violation of Section II of the VRA. Three groups of plaintiffs filed suit with the shared objective of preventing the Alabama Secretary of State from conducting elections with these maps. [5] A three-judge panel for the district court blocked the usage of this map for the 2022 midterm elections, finding that the state potentially violated Section II by means of ‘packing’ and ‘cracking’ Black voters. [6] The term ‘packing’ refers to the practice of creating electoral boundaries that consolidate a particular community into a smaller number of districts. ‘Cracking’ entails splitting a constituency across a number of districts with the effect of reducing its capability to select its preferred candidates. [7] Both of these methods may be weaponized to benefit one group at the expense of another. This type of predatory mapmaking falls under the definition of gerrymandering. [8]
Recognizing this negligence, the district court ordered the state legislature to draw another map with a second district where Black voters have the potential to elect their preferred candidate. [9] In February of 2022, the state of Alabama appealed directly to the Supreme Court of the United States with the primary argument that race should not be a consideration in congressional redistricting citing the Equal Protection Clause of the Fourteenth Amendment. In a 5-4 decision, the Supreme Court approved the state’s request for a stay for the 2022 midterm elections, but heard oral arguments shortly thereafter, which came as a surprise to many legal experts who noted the Roberts court’s skepticism of the Voting Rights Act. This paper will examine the precedent set by Allen v. Milligan and offer insights on the pending case, Callais v. Landry (2024). These cases will be analyzed and discussed in an attempt to evaluate the challenge of promoting racial equity without disenfranchising other voter factions.
II. MAJORITY OPINION IN ALLEN V. MILLIGAN
Chief Justice John Roberts authored the majority opinion which reaffirmed Section II, touted as a major victory for voting rights advocates. They found that Alabama’s redistricting efforts unlawfully minimized Black voters’ influence. The majority also drew upon precedent established in Thornburg V. Gingles (1986) which details criteria for proving redistricting map violations of Section II. Commonly referred to as the “Gingles Test,” three conditions must be met in order to prove Section II violations. First, the “minority group must be sufficiently large and geographically compact to constitute a majority in a single-member electoral district.” Second, “the minority group is politically cohesive.” And third, “that the white majority votes sufficiently as a bloc usually to defeat the minority’s preferred candidate.” [10] If the three preconditions are met, the plaintiff must demonstrate the “totality of circumstances,” which requires substantial evidence that the political process being subjugated is not “equally open” to minority voters. [11]
This criteria also requires a deeper analysis of the history of discrimination in this jurisdiction, barriers to political participation, and minority representation in government. This facet of the Gingles Test is necessary in determining whether or not the electoral system affords equal access to minority voters. It also remains the lens through which claims of racial discrimination in voting are reviewed. In this case, the court determined that the plaintiffs met all the necessary prerequisites and successfully proved the totality of circumstances. The evidence showed that Alabama’s Black population was sufficiently large and geographically compact to justify the creation of a second district. Furthermore, the court found that Black voters in Alabama do tend to vote cohesively while White voters, as the majority, also vote cohesively in a way that inhibits the Black community from choosing representatives who align with their preferences. The Majority emphasized that race-conscious measures remained a lawful and necessary tool for surveying instances of potential disenfranchisement while noting that race-predominant mapping (which calls for proportional racial representation) was not valid. In its argument, Alabama misrepresented the plaintiff’s argument as an attempt to implement race-predominant mapping which the courts ultimately found was not the case in this scenario.
III. DISSENTING OPINION IN ALLEN V. MILLIGAN
The principal dissent was written by Justice Clarence Thomas, joined by Justice Gorsuch and partially by Justices Alito and Barrett. Thomas’ main argument asserted that the majority’s interpretation of Section II of the Voting Rights Act erroneously mandates race-based districting, which the Constitution does not support. [12] He maintained that the Voting Rights Act does not guarantee proportional representation and criticized the majority for, in his view, requiring the state to utilize race as a significant factor in redistricting. His interpretation of this ruling concluded that failing to conduct a redistricting process that prioritized race-neutrality would inherently violate the protections found in the Constitution.
Furthermore, the dissenting opinion revealed its conservative predilection for states rights, expressing concern about the consequences of imposing federal oversight on state redistricting efforts. Clarence Thomas referenced Brnovich V. Democratic National Committee (2021) in his dissent, discussing how this decision influences his views on racial discrimination in voting. To provide some context, Brnovich V. Democratic National Committee was a key supreme court case that addressed the legality of particular voting laws in Arizona and examined similar provisions of the Voting Rights Act of 1965. The primary concerns of this case dealt with out-of-precinct ballots and ballot collection. The DNC similarly claimed that these voter laws violated Section II of the Voting Rights Act. The court ultimately ruled along partisan lines that no violations were found. This decision set a precedent that made it more difficult to challenge voting laws under the Voting Rights Act, highlighting the state’s autonomy in administering elections. [13]
While the dissenting opinion presented a compelling and strong line of reasoning, it failed to acknowledge the Voting Rights Act’s storied significance in protecting minority rights. Thomas’ interpretation downplays the importance of the VRA through his overreliance on race-neutral redistricting standards which ignores decades of marginalization. While race-neutral principles are important, they cannot override the VRA’s mandate to ensure fair representation for all groups. The majority extensively explained that race-conscious considerations were necessary to remedy the historical and systemic underrepresentation of Black voters in Alabama. Ignoring race’s role in previous redistricting perpetuates existing racial inequities rather than resolving them. Additionally, the minority’s argument that considering race would violate the Equal Protection Clause of the Fourteenth Amendment incorrectly applies this standard. The clause guarantees individuals equal treatment by state governments which had been denied by the State of Alabama through their predatory redistricting practices. In this instance, the consideration of other factors is justified by an interest to promote fair representation in government.
IV. CALLAIS V. LANDRY (2024)
Building on the Equal Protection Clause’s role in safeguarding individual rights, the pending case, Callais v. Landry (2024), raises important questions about constitutional constraints on racial considerations in redistricting. This federal lawsuit is centered on Louisiana’s congressional redraw following the earlier ruling of the Court of Appeals in Robinson v. Landry (2022) [14] which warranted an edict to create a second majority-Black district to reflect the shift in population. However, this decision sparked backlash from a group of non-Black citizens. The plaintiffs alleged that race was prioritized in the new design and was thus an unconstitutional gerrymander under the 14th and 15th Amendments. This map is now being challenged in Callais v. Landry, with plaintiffs arguing that race was not simply taken into account, but improperly prioritized in drawing district lines. A three-judge panel at the district level blocked the use of the remedial map; however this decision was appealed to the Supreme Court. [15]
Given the dynamic of this case, it is easy to draw comparisons between Allen v. Milligan and Callais v. Landry. Both cases share a focus on the tension between honoring the promise of fair representation in the Voting Rights Act and constitutional limits on race-based redistricting. Balancing minority representation without undermining the political power of other demographics is a complex challenge. Affording historically marginalized groups the same ability to elect leaders of their choice often requires a reevaluation of the status quo but if not executed correctly, risks the potentiality of racial gerrymandering. Based on the precedent set in Allen v. Milligan, the Supreme Court should uphold Louisiana’s provisional map with two majority-Black districts, provided it properly balances racial considerations with traditional redistricting principles like compactness and community cohesion. If the map disproportionately emphasizes race then the court should see it fit to require further adjustments. Compliance with the VRA is essential to protecting minority rights and it is possible to do so without disenfranchising other voter blocs. The court however, should clarify that while race consciousness may be necessary in addressing historical wrongdoings, it must be narrowly tailored to meet legal requirements and adhere to the Fourteenth Amendment.
V. CONCLUSION
The outcomes of Allen v. Milligan and the pending case Callais v. Landry highlight the evolving dynamics of voting rights and fair representation in America. The ruling in Allen v. Milligan solidified the importance of Section II of the VRA in combating vote dilution, reaffirming the rights of all citizens to choose leaders who share their values. Conversely, Callais v. Landry tests the boundaries of this principle, testing whether or not race-conscious solutions can be executed without overstepping constitutional protections against racial gerrymandering. As demographics continue to shift and reshape the electorate, courts will face increasingly difficult challenges in deciphering where to draw the line.
The evolution of this topic reflects the nation’s ongoing struggle to align its democratic principles with its practices. The founders envisioned a system where districts would provide proportional representation, but they could not have foreseen the complexities that accompanied massive population growth, partisan interests, and developments in technology. As the nation progresses into the twenty-first century, lawmakers must craft policies that uphold American values while adapting to the ever-changing political landscape. Fair representation remains the cornerstone of a vibrant and functioning constitutional republic and in an era marked by uncertainty, the justice system must continue to provide an avenue for progress through meaningful discourse.
The broader implications for the future are profound. These decisions will not only impact electoral outcomes but public trust in the fairness and inclusivity of the democratic process. For the United States to achieve equitable representation and live up to its highest ideals, lawmakers must prioritize transparency, balance, and a commitment to uphold both the Constitution and VRA’s legacy. Under the current system, partisan majorities in state legislatures possess the power to draw district lines–a massive structural failure that gives way to biased maps. Adopting Independent Redistricting Commissions or exploring the possibility of computer-generated models can be the first step in addressing the root issues. Only by raising these critical concerns can Americans ensure that the great democratic experiment endures for another two and a half centuries.
Endnotes
[1] “52 U.S. Code § 10101 - Voting Rights,” Legal Information Institute, accessed November 19, 2024, https://www.law.cornell.edu/uscode/text/52/10101.
[2] “One-Person, One-Vote Rule,” Legal Information Institute, accessed November 20, 2024, https://www.law.cornell.edu/wex/one-person_one-vote_rule.
[3] “Section 2 of the Voting Rights Act,” Civil Rights Division, April 5, 2023, https://www.justice.gov/crt/section-2-voting-rights-act.
[4] Andrew Hamm, “Allen v. Milligan,” SCOTUSblog, accessed November 19, 2024, https://www.scotusblog.com/case-files/cases/merrill-v-milligan-2/.
[5] 21-1086 Allen v. Milligan (06/08/2023), accessed November 20, 2024, https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf.
[6] “Packing, Cracking and the Art of Gerrymandering around Milwaukee,” Translational Applied Demography: Packing, Cracking And The Art Of Gerrymandering Around Milwaukee, accessed November 24, 2024, https://apl.wisc.edu/shared/tad/packing-cracking.
[7] 7971 and 206, “Gerrymandering Explained,” Brennan Center for Justice, March 7, 2024, https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained.
[8] “Packing,” Ballotpedia, accessed November 19, 2024, https://ballotpedia.org/Packing.
[9] Soniamontejano, “Justice Kavanaugh’s Allen v. Milligan Concurrence Invites Further Challenges to Section 2,” Fordham Law Voting Rights and Democracy Project, October 9, 2023, https://fordhamdemocracyproject.com/2023/10/09/justice-kavanaughs-allen-v-milligan-concurrence-invites-further-challenges-to-section-2/.
[10] Supremecourt, accessed November 25, 2024, https://www.supremecourt.gov/DocketPDF/21/21-1086/222354/20220502163340023_21-1086%20and%2021-1087%20Amicus%20NRRT%20Supp.%20Appellants.pdf.
[11] “Thornburg v. Gingles,” Ballotpedia, accessed November 19, 2024, https://ballotpedia.org/Thornburg_v._Gingles.
[12] 21-1086 Allen v. Milligan (06/08/2023), accessed November 20, 2024, https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf.
[13] Oyez, Brnovich v. Democratic National Committee, 594 U.S. ___ (2021), accessed November 20, 2024, https://www.oyez.org/cases/2020/19-1257
[14] “Robinson v. Landry,” American Civil Liberties Union, July 3, 2024, https://www.aclu.org/cases/robinson-v-ardoin.
[15] “Callais v. Landry,” American Civil Liberties Union, September 19, 2024, https://www.aclu.org/cases/callais-v-landry.