Alabama Loses High Court Bid to Rewrite Redistricting Rules

The Supreme Court sternly rebuked Alabama Republicans Thursday for violating civil rights laws when they passed a congressional map in 2021 that includes only one—rather than two—districts likely to elect Black representatives.

The Alabama Legislature will now have to redraw the map to reflect the racial makeup of the state. Nearly 27% of Alabama residents are Black. Two majority Black congressional districts would give them the opportunity to elect two of the state's seven members of the U.S. House of Representatives, or 28% of the delegation. 

The court’s 5-4 decision in Allen v. Milligan could have far-reaching impacts, both on party control of the U.S. House and in how future voting rights cases are decided. The case gave the conservative-heavy Supreme Court a chance to rewrite its own rules for how to judge voting rights cases, which Alabama urged them to do. But a majority of the court opted to keep the existing rules.

“This decision is a clear message to lawmakers that their responsibility has not changed: They must ensure that voters of color are not denied an opportunity to participate in the electoral process,” said the Legal Defense Fund of the NAACP in a statement.

Already, Louisiana’s outgoing Democratic governor, John Bel Edwards, said the logic of the Supreme Court’s decision Thursday should apply to Louisiana as well. “Louisiana’s population is one-third Black. We know that in compliance with the principles of the Voting Rights Act, Louisiana can and should have a congressional map where two of our six districts are majority Black. Today’s decision affirms that,” he said.

In a surprising decision with an ideologically mixed majority, Chief Justice John Roberts chided Alabama officials for diluting the Black vote and then for trying to rewrite decades-old rules that courts use to judge cases dealing with Section 2 of the Voting Rights Act. That provision prohibits governments from making discriminatory changes to voting systems.

“The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our [Section 2] jurisprudence anew,” Roberts wrote. “We find Alabama’s new approach to [Section 2] compelling neither in theory nor in practice. We accordingly decline to recast our [Section 2] case law as Alabama requests.”

Alabama’s lawyers said courts should evaluate whether a new legislative map discriminates against minority voters by using a “race-neutral benchmark.”

Their argument is that state mapmakers could use computers to generate millions of potential legislative maps. The algorithms would take into account many factors that people use when drawing new districts, like keeping districts compact, following the lines of existing communities or using natural boundaries. But they would not consider race.

Next, the mapmakers would calculate the median number of majority-minority districts in all of those maps.

If the map passed by lawmakers had the same or more majority-minority districts, Alabama’s lawyers said, it would show the approved plan complied with the Voting Rights Act. That analysis would prevent courts from mandating proportional representation, that is, requiring the demographics of the delegation to match the demographics of the state regardless of how absurd the resulting districts.

The chief justice, though, said Alabama’s approach “runs headlong into our precedent.”

Since 1986, Roberts explained, the Supreme Court has used the same test for deciding whether a district map violates Section 2 of the Voting Rights Act. First, plaintiffs have to show that a minority group is big enough and compact enough to be a majority in a reasonable district. Second, they have to show that the minority group is politically cohesive. Third, the challenges have to show that white residents vote in enough of a bloc to defeat minority candidates.

Roberts said that those rules guarded against the kind of “proportional representation” that the Alabama lawyers warned about. To underscore his point, the chief justice listed cases from Georgia, North Carolina and Texas where the Supreme Court blocked discrimination lawsuits because the plaintiffs failed to meet those factors. Plus, at the congressional level, the number of districts that can likely be won by Black-preferred candidates is lower than the Black share of the eligible voter population in all the states but three, Roberts wrote.

Since 2010, he noted, plaintiffs nationwide prevailed in fewer than 10 Section 2 lawsuits. The only state legislative or congressional districts that were redrawn because of successful Section 2 challenges, Roberts added, were a handful of state house districts near Milwaukee and Houston.

But the chief justice also blasted the Alabama solution on practical grounds. The state repeatedly pointed to the 2 million computer-generated maps it considered, he said, but that figure is misleading.

“The point is that 2 million is a very big number and that sheer volume matters. But as elsewhere, Alabama misconceives the math project that it expects courts to oversee. A brief submitted by three computational redistricting experts explains that the number of possible districting maps in Alabama is at least in the ‘trillion trillions,’” Roberts wrote. Other estimates were even higher, in the googols (a one with 100 zeros after it).

“Two million maps, in other words, is not many maps at all,” Roberts wrote. “And Alabama’s insistent reliance on that number, however powerful it may sound in the abstract, is thus close to irrelevant in practice. What would the next million maps show? The next billion? The first trillion of the trillion trillions? Answerless questions all.”

Few court watchers anticipated the chief justice becoming a defender of the Voting Rights Act, which he has repeatedly tried to weaken throughout his career.

Roberts wrote the majority opinion in a 2013 case called Shelby County v. Holder that effectively eliminated the federal government’s ability to conduct “pre-clearance” reviews to make sure that jurisdictions with long histories of civil rights violations obeyed voting rights laws. That decision made it easier for Republicans in predominantly Southern states to pass new legislative and congressional maps, plus new restrictions on voting access, after the 2020 Census without getting Justice Department approval.

As a young lawyer in the Justice Department during President Ronald Reagan’s tenure, Roberts also pushed Congress to adopt a far weaker version of Section 2 when it was tasked with reauthorizing the Voting Rights Act in 1982. The Supreme Court decided that Section 2 should only apply to intentional discrimination, which is notoriously hard to prove in court. Roberts pushed to keep that standard. But civil rights advocates wanted the law to cover policies where the practical effect was that people were denied their right to vote or had it abridged.

Roberts lost that fight. Congress adopted a compromise, which is the same version at issue in the Alabama case. The chief justice recounted the debate in Thursday’s decision but did not explain his role in it.

Thursday’s decision broke down on unusual lines. Roberts, a conservative who was named to the top post by President George W. Bush, authored the decision with the support of Justice Brett Kavanaugh, who was nominated by President Donald Trump. They joined the court’s three liberals—Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—in the majority.

Justices Clarence Thomas and Samuel Alito filed dissents, joined by the remaining conservative members.

Thomas said Roberts’ decision “fossilize[s] all of the worst aspects of our long-deplorable vote-dilution jurisprudence.”

The majority opinion, he wrote, “virtually ignores Alabama’s primary argument—that, whatever the benchmark is, it must be race neutral—choosing, instead, to quixotically joust with an imaginary adversary. In the process, it uses special pleading to close the door on the hope cherished by some thoughtful observers that computational redistricting methods might offer a principled, race-neutral way out of the thicket [the 1986 case] carried us into.”