Legal scholar: Redistricting ruling suggests SCOTUS “wrongly gave Republicans control of the House”

Supreme Court rejecting Alabama maps that diluted Black voting power may have big implications in other states

By Tatyana Tandanpolie

Staff Writer

Published June 8, 2023 2:53PM (EDT)

US Supreme Court Building (Photo illustration by Salon/Getty Images)
US Supreme Court Building (Photo illustration by Salon/Getty Images)

In a surprise decision, the Supreme Court ruled against a redrawn Alabama congressional voting map on Thursday, determining that the proposed redistricting diminished the power of Black voters in the state by corralling them in one district where they made up the majority.

The Court's 5-4 ruling in the Allen v. Milligan case saw a majority comprised of Chief Justice John Roberts, Justice Brett Kavanaugh, and the liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Voting rights activists feared the opinion would gut the 1965 Voting Rights Act, according to The New York Times, but the decision affirmed the legislation instead.

"In 2021, Alabama lawmakers targeted Black voters by packing and cracking us so we could not have a meaningful impact on the electoral process," plaintiffs in the case said of the Alabama Legislature's redistricting in a joint statement.

"Today, the Supreme Court reminded them of that responsibility by ordering a new map be drawn that complies with federal law – one that recognizes the diversity in our state rather than erasing it," the plaintiffs' added. "This fight was won through generations of Black leaders who refused to be silent, and while much work is left, today we can move forward with these reaffirmed protections civil rights leaders fought and died for."

In the majority opinion, Roberts wrote that the act "may impermissibly elevate race in the allocation of political power within the states," adding that the justices' opinion "does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here." 

The case, which is part of a nationwide battle over redistricting and the role of race in the process, arose after Alabama's Republican-controlled legislature redrew the state's congressional map following the 2020 census.

Of the state's seven districts, only one in the new map had Black voters as a majority despite making up about 27% of the state's voting-age population. While the other districts voted Republican representatives into office, that district has historically voted Democrat.

Black voters and civil rights groups challenged the new map under the Voting Rights Act, which protects minority voters, and a three-judge panel ruled unanimously that Alabama's Legislature should have drawn a second district "in which Black voters either comprise a voting-age majority or something quite close to it."

The panel, made of Clinton-appointed Judge Stanley Marcus and Trump-appointed Judges Anna Manasco and Terry Moorer, also found that voting in Alabama is racially divided and that creating "a second reasonably configured district" that allows Black voters to elect preferred candidates would be possible.

The Supreme Court temporarily overturned the lower panel's ruling with a 5-4 vote last year, which allowed the 2022 election to take place under the Legislature's redrawn map.

Thursday's ruling "puts into rather harsh perspective the Court's unsigned, unexplained order in February 2022 that *allowed* Alabama to use its unlawful map for the 2022 midterms (like a similar order with respect to Louisiana)," Steve Vladeck, a Supreme Court expert at the University of Texas School of Law, tweeted on Thursday in response to the decision. "Only Justice Kavanaugh changed sides from that 5-4 ruling."

The ruling could have major implications in other states where the Supreme Court used the "shadow docket," or unsigned emergency opinions, to allow maps that ran afoul of the Voting Rights Act to stay in place for the 2022 election.

"If you assume that additional majority-minority districts in Alabama, Georgia, Louisiana, & 1–2 other states would've been safe Democratic seats, then today's #SCOTUS ruling strongly suggests that the Court's 2022 shadow docket stays wrongly gave Republicans control of the House," wrote Vladeck, the author of "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic."

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Other legal experts, government officials and leaders of voting rights advocacy groups issued statements praising the court for its Thursday decision and calling on Congress to pass more legislation to protect the rights of voters.

"Today's ruling vindicating the rights of Alabama voters is a huge victory for civil rights and a welcome surprise," Michael Waldman, president and CEO of NYU Law's Brennan Center for Justice, said in a statement. "The Voting Rights Act is one of the country's most effective civil rights laws. This decision will ensure that voters of color can continue to use Section 2 to assure their equal opportunity to participate in elections, in Alabama and around the country.

"In this instance, the Supreme Court's embrace of established precedent seems to have heard the public's outcry over its radical rulings." he continued. "We should all demand decisions from this court that uphold democracy and advance racial justice."

The section of the Voting Rights Act that Waldman referred to, which was pruned by the Brnovich v. Democratic National Committee decision in 2021, banned any voting measure that "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race." 

"This is a victory for all Americans, and it is an important step toward equal voting power and representation for voters of color across the country," former Attorney General Eric Holder said in a statement. "It is also a testament to the tenacity of the voters of Alabama, who knew their rights were violated as a result of a map drawn in an unconstitutional and discriminatory manner, and took this fight as far as they could to not only ensure their rights, but the rights of Americans across the country.

"As a result of today's decision, our case moves forward, returning to the trial court for implementation of a fairer congressional map that all Alabamians want and deserve," he continued. "The lower court ordered a second Black opportunity district be drawn in Alabama precisely because Black Alabamians have been too long denied the opportunity to elect a candidate of their choice in all but one of the seven congressional districts,"

Aneesa McMillan, deputy executive director of voter-centric PAC Priorities USA, called the ruling a "crucial win."

"I am grateful that this decision will elevate the voices of Black voters who are often the targets of the rigorous voter suppression efforts we've seen over the last decade," she said in a statement. "Racial gerrymandering is one of the oldest attacks on our democracy. By upholding Section 2 of the Voting Rights Act, the Supreme Court is delivering on their duty to ensure every voter has fair, equitable access to the ballot."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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Aggregate Politics Redistricting Supreme Court Voting Rights Act