To read about how the U.S. Supreme Court decided in Allen v. Milligan, check out Capital B’s story here.
Allen v. Milligan hasn’t captured quite as much attention as other cases currently before the U.S. Supreme Court. But the bench’s decision — expected in the coming weeks — could have a seismic impact on Black political power.
In 2021, a group of voters, Greater Birmingham Ministries, and the Alabama NAACP sued the state over a newly enacted congressional map. They argued that it violates Section 2 of the 1965 Voting Rights Act, which lays down that marginalized groups must have an equal opportunity “to participate in the political process and to elect representatives of their choice.” The plan includes just one opportunity district for Black voters, even though Black Americans are around 27% of the state’s voting-age population. The lower court judges sided with the voters, and instructed lawmakers to create a second majority-Black district. But Alabama then asked the Supreme Court to hear the case; in a 5-4 decision, the bench agreed.
Milligan arrives at a moment chock-full of redistricting disputes. Last month, for instance, Black Arkansas voters sued the state over what they say is a racially gerrymandered congressional map that violates the 14th and 15th Amendments. Also in May, the high court said that it’d weigh in on whether South Carolina’s congressional districts ought to be redone — a lower court found that the state’s plan had “exiled” 30,000-some Black voters to safeguard white Republican dominance in the area.
If the Supreme Court backs Alabama, Black voters could see their political power further diluted, and they could be denied elected leaders who will stick up for them on issues ranging from criminal justice to school funding.
“Having an additional district would allow people to have another representative who’s sympathetic to the region [the rural and impoverished ‘Black Belt’ region] as well as to the concerns of folks here,” said Evan Milligan, a lead plaintiff in the case and the executive director of the nonpartisan civic engagement network Alabama Forward. “And that congressperson would hopefully bring in resources and create a sense of urgency around community needs.”
During oral arguments in October, Alabama Solicitor General Edmund LaCour insisted that designing districts must be “race neutral” — otherwise the process would conflict with the 14th Amendment’s promise of equal protection. But Justice Ketanji Brown Jackson, the first Black woman to sit on the Supreme Court, quickly poked holes in that logic.
“I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem,” she countered. “I understood that we looked at the history and traditions of the Constitution, at what the framers and the founders thought about. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way. That they were, in fact, trying to ensure that people who had been discriminated against — the Freedmen, during the Reconstruction period — were actually brought equal to everyone else.”
Here’s a closer look at what’s at stake in Milligan and how the potentially monumental case fits into a much broader struggle for fair representation.
‘Everything’s on the line’
Exaggerating the importance of Milligan is difficult. Maybe most obviously, the case could blunt the efficacy of Section 2 in the battle against racially discriminatory redistricting.
Milligan isn’t really about the right to vote, because no one is attempting to eliminate that right, but rather about the right to an effective vote — or the ability of people, specifically Black Americans, to elect lawmakers who will represent their interests.
“There’s a structure around voting rights. There’s ‘one person, one vote,’ which essentially says that your districts must be of approximately equal size. That’s not going away,” explained Henry Chambers, a law professor at the University of Richmond. “The question is: How can you draw lines, with the result being that people don’t get to be close to folks who will vote similarly to them — and as a consequence, how can you draw lines to minimize the effectiveness of their votes in the legislature? It’s that messy of an issue.”
Milligan matters even more when you consider that Section 2 protections have taken on greater significance in recent years, as the Supreme Court has gutted other parts of the VRA, which hasn’t only nourished Black voter turnout but also narrowed racial economic inequality.
Most notably, the high court obliterated Section 5 via Shelby County v. Holder in 2013, when it ruled that states that had historically discriminated against Black voters no longer had to procure federal approval — or preclearance — to modify their election laws.
Read more: ‘America Can Go Only as Far as the South Goes’
“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” the late Justice Ruth Bader Ginsburg noted in her dissent, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”
As she anticipated, a wave of restrictive voting measures followed the Shelby County decision. Mere hours later, Greg Abbott, who at the time was the attorney general of Texas, said that a strict voter ID law “will take effect immediately.”
Drastically reimagining Section 2 — sending it into oblivion, as Alabama seems determined to do — could make it all but impossible for Black voters plagued by discrimination in redistricting to meaningfully dispute maps.
Yet more is in jeopardy than just the idea of fair representation. Section 2 has boosted Black voters’ engagement in local politics, and allowed them to have a stronger voice in the allocation of public resources.
“Some people might live in a neighborhood where they aren’t near a hospital or a school, or where they’ve had messed up roads for 10 years. But then you go to another neighborhood not far away, and people there have the basic things they need. What do communities do when they don’t have elected officials who will fight for them?” asked Khadidah Stone, a plaintiff in Milligan and a chief field and campaign strategist at Alabama Forward. “Education is on the line. Health care is on the line. Criminal justice is on the line. Everything’s on the line. And it all starts with our voting power, and whether we’re given a choice about who represents us.”
Beyond Alabama
Milligan could have nationwide implications, depending on the direction the Supreme Court takes.
The “most immediate impact would be on cases in Georgia and Louisiana, where courts have already found that Section 2 requires redrawing of congressional maps to create additional Black districts,” according to analysts at the Brennan Center for Justice, a nonprofit public policy organization at New York University School of Law. (The center submitted an amicus brief in support of Alabama voters.)
They say that cases in other states where Black voters are trying to develop opportunity districts also could be affected by the court’s ruling.
Chambers offered that if the high court sides with Alabama, what Chief Justice John Roberts, who’s been campaigning against the VRA since the 1980s, would likely say is that the point of the decision is to get rid of distinctions between minority voters and non-minority voters. More exactly: to force the former to build bridges with the latter if they want to elect candidates of their choice.
There’s a problem with that reasoning, though.
“You have to ask if there’s a real coalition to be built between Black voters and non-Black voters in certain states, particularly when the court has said that partisan gerrymandering is acceptable or at least isn’t something the U.S. Constitution bars,” Chambers explained.
Read more: Alabama Discriminated Against Black Residents, Feds Confirm
Imagine a situation, he went on, where, per Roberts’ instructions, Black voters build bridges with white voters. But then, a legislature controlled by one party — the Republican Party — decides to partisan gerrymander the state in a way that means that any bridges built won’t necessarily lead to actual representation.
“That’s the real issue,” Chambers said. “And it’s one I’m not sure we can truly resolve — as long as states are allowing partisan gerrymandering in the manner they’re currently allowing it and as long as the Supreme Court goes along with it.”
Kenya Goodson, a 47-year-old social justice advocate from Tuscaloosa, Alabama, who’s cast a ballot in every election since she was 19, fears what further dulling one of the crown jewels of the midcentury Civil Rights Movement might do to Black political engagement.
“I’m concerned that people won’t participate if they don’t see their efforts pay off,” she said, to an extent echoing recent research by the economist Jhacova Williams, who found a connection between mistrust of elected officials and lower Black voter turnout in the South.
Policy yields results in your life, Goodson added. But if your life isn’t what you want it to be, you might ask why you should vote at all.
“I’ve heard people argue that,” she said. “And I just worry that if the court agrees with Alabama, some might become apathetic to a process that keeps shutting them out.”