INDIANAPOLIS, Ind.—Election law experts say a recent U.S. Supreme Court ruling in an Alabama redistricting case could be an “invitation to litigation” about the constitutionality of “racial gerrymandering,” which could embroil states in a wave of lawsuits before the 2024 election.
The Supreme Court’s 5-4 decision on June 8 in Allen v. Milligan has been hailed by some as an affirmation of the Voting Rights Act’s (VRA) Section II prohibition on the “denial or abridgment” of any United States citizen’s voting rights based on “race or color.”
It upheld a January 2022 determination by a three-judge U.S. Northern District of Alabama panel that ruled Alabama’s Republican-supermajority Legislature’s reapportioned post-2020 Census maps did not reflect the state’s demographics and denied Black voters a “reasonable opportunity to elect a candidate of their choice” in at least two of the state’s seven Congressional districts.
The lower federal court rejected the Legislature’s reapportioned maps and ordered a new map be redrawn that would incorporate more Black voters into a second majority-minority district.
The Supreme Court, in a ruling that surprised many observers, denied the state’s appeal of the District Court decision and remanded the case back to the three-judge panel, which is expected to issue its version of a reconfigured map by early October.
The Allen ruling and pending release of that map, near-certain to elicit subsequent legal challenges, was among cases and legal trends cited by legal experts across several presentations on elections laws and administration, which were staged during the recently concluded Aug. 14-16 National Conference of State Legislatures (NCSL) 2023 Legislative Summit attended by more than 5,000 state lawmakers, legislative staffers, lobbyists, and non-profit advocates.
On the surface, the Supreme Court upheld the lower court’s application of its 1986 Thornburg v. Gingles ruling that created a three-part test to evaluate claims brought under the VRA’s Section 2.
In the ruling, Justice Brent Kavanaugh joined Chief Justice John Roberts and the court’s three liberal-leaning justices in forming the majority opinion.
But while he wrote a concurring opinion agreeing with Chief Justice Roberts that “Alabama’s redistricting plan violates Section II of the Voting Rights Act as interpreted in Gingles,” Justice Kavanaugh also agreed with Justice Clarence Thomas’s 48-page dissent, which argued that even if Congress once had the power to authorize race-based redistricting, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”
Justice Kavanaugh’s opinion essentially dodges the race factor since that was not part of Alabama’s argument in its appeal, writing that he would “not consider it at this time” and leaving the question open for consideration in later deliberations.
Invitation for Future Litigation
The “Kavanaugh Concurrence” is “pretty clearly an invitation to continued litigation” on the “notion of racial quotas” being used to craft legislative district maps, said Mark Braden, an elections law attorney with the Washington-based law firm, Baker & Hostetler.
Mr. Braden noted that the following week, the Supreme Court issued its decision in Students for Fair Admissions v. President and Fellows of Harvard College, which ruled that affirmative action racial quotas in college admissions violate the equal protection clause in Title VI of the Civil Rights Act.
Therefore, he warned, the “Kavanaugh Concurrence” sets up a potential clash that “pre-shadows literally” a potential sled of elections law litigation related to how the 15th Amendment and 14th Amendment’s Equal Protection clause intersects with the VRA’s Section II.
Those potential lawsuits could force states “to navigate between two rocks of litigation:” the VRA, which states that race is “a very important consideration” in the redistricting process; and the 15th Amendment, which holds that the Constitution “doesn’t permit you to use race as a predominant factor” in drafting legislative district maps.
“So how you navigate between them? Good luck,” Mr. Braden told state lawmakers and elections officials. “If a district doesn’t reflect its racial composition, I know for a fact that could be a lawsuit. But there’ll be another lawsuit saying they use race too much.”
The question the “Kavanaugh Concurrence” pushes into potential legal scrutiny is, “What is too much use of race?” in redistricting, Mr. Braden asked. But it puts state Legislatures in “an impossibly cloudy situation, unfortunately.”
“Let’s be candid,” he warned. “Every piece of litigation you’ll be involved in, you’ll be able to find an expert that says it should be Y, an expert that says it should be X, and there’ll be another expert who will says it should be Z. But ultimately, this is social science, not science” and heavily influenced by the ambient politics of the moment.
On how he’d advise legislatures to proceed, he said, “I will save those comments for my clients in the legislatures,” before adding, right now, “I’ll say when asked in advance, my suggestion is ‘an Ouija board.’”
‘Packing’ and ‘Cracking’ Districts
After the 2020 U.S. Census headcount showed that more 27 percent of Alabama residents were Black, the super-majority Republican state Legislature during its 2021 session drafted a map with only one majority Black district—currently represented by Rep. Terri Sewell (D-Ala.)—and six “white majority” districts represented by a white Republican since 2011.
At least three individual Black Alabama voters filed lawsuits challenging the Legislature’s maps, arguing that it violated the 1965 VRA by “diluting minority voting power”—also known as cracking—denying them “an opportunity to elect a representative of their choice.” The suits were consolidated into one case, Allen v. Milligan.
Plaintiffs argued that the map violated the VRAs Section II by “packing” Black voters into a single district across central Alabama’s “Black Belt” while, at the same time, “cracking” Black voters in the rest of the Black Belt into several other districts configured to ensure they were statistically irrelevant in those districts.
In January 2022, the three-judge U.S. District Court panel rejected the Legislature’s map and ordered the drawing of a new seven-district map that provided Black voters legitimate efficacy in a second district with a majority of Black voters or something “close to it.”
In February 2022, Alabama appealed the District Court ruling to the Supreme Court, which agreed to hear the case and denied an injunction against using the contested maps for the 2022 midterms elections. Both sides made their case before the Court during two hours of oral arguments in October 2022.
In the wake of the Supreme Court’s June 8 rejection of the state’s appeal, Alabama’s Republican Gov. Kay Ivey convened a July 17-21 special session, during which lawmakers increased the percentage of Black voters in one of the state’s six majority-white congressional districts to about 40 percent from 30 percent.
Legislative Democrats, largely without power in the GOP-dominant special session deliberations, strenuously objected to the revised maps that they argue would solidify Republican incumbencies across the six other districts rather than complying with the rulings. They have put forward their own proposed map that would increase the percentage of Black voters in a second district to nearly 50 percent.
With the Supreme Court remanding the case back to the District Court, the three-judge panel staged a two-hour hearing on Aug. 14 in Birmingham, Alabama, to decide if the revised special session map should be laid aside in favor a new map crafted by a special master, Richard Allen, and a cartographer, David Ely, who were already appointed to do so in the panel’s January 2022 rejection of the first maps. The state had challenged the use of a special master appointed by the federal courts to draw the maps in what usually is a legislative appointment.
The District Court panel is expected to issue its decision by early October so that Alabama elections officials can begin preparing for the 2024 election.
The deadline for Congressional candidates to declare their entrance in races is Nov. 10, with Alabama’s statewide primary set for April 16, 2024.
The Minnesota Legislature’s director of Senate Counsel, Research, and Fiscal Analysis Alexis Stangi agreed that the Alabama case raises a potential debate—and likely subsequent lawsuits before the 2024 election—on the constitutionality of racial gerrymandering in post-Census redistricting that could have nationwide impact in how the VRA’s Section II is interpreted, not only in future decadal reapportionments but in some existing maps that are currently in use.
While Mr. Braden was among experts warning state lawmakers and elections administrators about how the “Kavanaugh Concurrence” could create legal issues for states in the coming year, Campaign Legal Center Senior Director Catherine Hinckley Kelley said the Supreme Court’s rejection of Alabama’s appeal does not aggravate “tension between [the VRA’s] Section II and the Equal Protection Clause” of the 14th Amendment.
“I think that the court was invited to throw [race] out” as a factor in drafting district maps, Ms. Kelley said. “They didn’t do that. They reaffirmed Gingles and my biggest takeaway from those cases is … that is the framework that Section II cases are going to be analyzed on future litigation.”
How to do that without straying into some type of constitutional conflict, to “reconcile equal protection laws” with the VRA’s Section II “is a struggle up until now. It’s still a struggle,” she said.
Stuck in the middle of the unfolding muddle is Alabama Legislature General Counsel Jimmy Entrekin, who said he must tread carefully in his comments regarding the deliberations because he has “constituencies on both sides” of the lawsuit within the state Legislature.
He compared his experience to a dystopian sci-fi show on Apple TV called ‘Silo,’ where in “some distant time in the future,” the air is toxic and the planet’s last humans live in a “humongous silo.”
The silo people often repeat a mantra, Mr. Entrekin said,“I don’t know when it will be safe to go outside, but I do know that today is not that day.”
“That’s how I feel every time I read a new position in [the] case,” he continued. “I want to be a redistricting expert, but I know that today’s just not the day.”