Racial Gerrymandering Wins at the Supreme Court

A 5–4 Supreme Court this morning, in Allen v. Milligan, struck down Alabama’s congressional map on the grounds that it wasn’t race-conscious enough. The opinion by Chief Justice John Roberts was joined by the Court’s three liberals, and joined in part by Justice Brett Kavanaugh, with dissents from Justices Clarence Thomas and Samuel Alito.

The map, newly adopted after the 2020 census, was used in the 2022 elections while the lawsuit was pending. The likely result will be an additional House seat for Democrats on Alabama’s Gulf Coast, and one fewer for Republicans. That will heighten the burden faced by House Republicans in holding on to their slim majority in 2024.

Alabama has long had seven House districts, one of which is majority-black and held by a Democrat (Terri Sewell, representing the southwest of the state), and the other six of which are safe Republican seats. Indeed, by the Cook Political Index, all six are rated at least R+16, more Republican than Sewell’s D+14 district. Today’s decision most directly threatens Jerry Carl’s district, which is centered around Mobile. It remains to be seen whether the new maps actually produce two safe Democratic districts.

The 2020 census did not change Alabama’s representation, but the population shifted within the state, and Democrats who had complained for years about the existing map argued that those shifts strengthened their case for a second majority-black district in the “Black Belt,” so-called originally for its fertile soil but long holding a second meaning for its large black population, which is still mostly the poorer, rural descendants of the slaves who were brought to the Black Belt to pick cotton two centuries ago.

Section 2 and Race

Allen returns the Court to long-running disputes over how to read a 1982 amendment to Section 2 of the Voting Rights Act. Section 2 originally prohibited only intentional race discrimination, but after a 1980 Supreme Court decision, a bipartisan compromise amendment drafted by Bob Dole passed the Democratic House and the Republican Senate and was signed by President Reagan. The new rule prohibited some practices that had a discriminatory effect. Democrats wanted a test that would all but require racial gerrymandering to ensure majority-minority districts; Republicans resisted a proportional-representation test. The amended statute reads as follows:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . .

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State . . . are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State . . . is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” [Emphasis added.]

The Court’s last major Section 2 decision, Brnovich v. Democratic National Committee (2021), focused on voting laws and concluded that the statute only banned practices that made voting less “equally open” to some racial group as a whole, rather than on flyspecking every individual change to voting rules to strike down any change that might arguably affect one group more than another. The opinion, by Justice Samuel Alito, downplayed some factors that have been used in Section 2 redistricting cases, such as the presence of racially polarized voting within a state, reasoning that these factors were not included in the statute and were of less relevance to cases involving how people vote. But today’s decision reiterates that those factors, drawn from the Court’s 1986 decision in Thornburg v. Gingles, still apply in redistricting cases.

The central dispute in Allen is a long-standing one: whether states are required to be race-conscious in drawing district lines. Gingles, like the 1980 decision in City of Mobile v. Bolden that led to the 1982 amendment, involved a practice that was blatantly unfair to minority-group voters: multi-member state legislative districts in which the majority chooses all of the district’s representatives. Under such a rule, a group that constitutes 49.9 percent of a district’s population could effectively be shut entirely out of representation. Of course, that’s how statewide elections work for the president, governor, and Senate, but representative bodies are supposed to allow smaller communities some representation.

The problem arises when the Gingles analysis is applied to where the district lines are drawn in a system of single-member districts. Alabama argued in Allen for a system that would eliminate racial gerrymandering: if a computer could run thousands of simulations without considering race, the average number of majority-minority districts produced by a completely race-blind map-making system should be the presumptive baseline for whether a state’s map is discriminatory. In Allen, that number is one.

This may well be a better system, but it could not be squared with the Court’s precedents since Gingles, and for Roberts and Kavanaugh, that was decisive. Roberts rejected overruling Gingles – something Thomas openly advocates. Roberts downplayed the practical case for reconsidering Gingles, noting that less-segregated housing patterns had led to fewer and fewer successful Section 2 challenges to district maps – fewer than ten of them since 2010 at every level of legislative map. (Of course, that ignores the race-conscious districts that are drawn to avoid a Gingles challenge.) As Roberts noted, because Gingles requires, at its first step, considering race to determine if a majority-minority district could be practically drawn that would not be a ridiculous gerrymander, Alabama’s proposed race-blind system would be impossible to square with Gingles.

Roberts also raised questions about the workability of the Alabama rule, which reflects some of the same skepticism of math-metric rules that were proposed and rejected as unworkable in cases challenging partisan gerrymanders. “Courts should exercise caution before treating results produced by algorithms as all but dispositive of a §2 claim,” given the myriad of hard-to-quantify factors that go into redistricting: “Section 2 cannot require courts to judge a contest of computers when there is no reliable way to determine who wins, or even where the finish line is.”

Kavanaugh, for his part, did not join all of Roberts’s opinion, and placed a lot of stress on the fact that stare decisis is a more powerful consideration when dealing with a federal statute, which Congress can change if it does not like how the Court reads it — precisely what happened in 1982. Moreover, he left the door open to joining another argument raised by Thomas, which he felt was not properly presented by Alabama: that the 1982 amendment might be unconstitutional at some point because Congress lacks the authority to require, in perpetuity, race-conscious remedies under the 14th and 15th Amendments. This was part of the basis of the Court’s ruling ten years ago in Shelby County v. Holder and is at issue in this term’s racial-preference cases: If Congress is doing something other than color-blind lawmaking, its power extends only to remedying some particular past or ongoing discrimination, and cannot simply be left on autopilot forever without consulting current realities.

The dissents were more divided. Alito, joined by Gorsuch, argued that a proper understanding of Gingles would simply conclude that “a §2 plaintiff who claims that a districting map violates §2 because it fails to include an additional majority-minority district must show at the outset that such a district can be created without making race the predominant factor in its creation,” and that the only way to draw a second such district in Alabama would be to make race the predominant factor in the analysis. Thomas, whose opinion attracted the support of the other three dissenters for various portions of its analysis, reiterated his long-standing case that the entire venture of drawing race-conscious districts was ill-considered, not required by the 1982 statutory language, and unconstitutional. Indeed, Thomas contends (joined only by Gorsuch on this point) that Section 2 does not apply to the drawing of single-member district lines at all, and has only once before even been applied to do so.

The wider problem with race-conscious line-drawing is that it tends to be asymmetrical and exacerbates all the other problems with gerrymandering. There undoubtedly are better ways. But don’t wait on the Supreme Court to be the source of them.