Did the Supreme Court Mean It When It Said It Was Not Forcing Proportional Representation Under the Voting Rights Act?

The Supreme Court’s recent 5–4 decision in Allen v. Milligan holding that Alabama’s congressional map likely violates Section Two of the Voting Rights Act came as a surprise in a term that was expected to (and otherwise did) advance the principle of colorblindness in the law. The Court’s decision basically kept intact the framework previously applied to assess vote-dilution claims under its prior decision in Thornburg v. Gingles (1986). But as I discussed previously, that framework is ambiguous, with a multi-factor test that includes an “intensely local,” fact-specific inquiry. While the Court did not purport to impose the proportional allocation of political power based on race in the drawing of congressional districts, a key question is whether, amid the ambiguity, that will in fact become the requirement going forward.

Alabama’s congressional map had one majority-black district out of seven, as did other maps in preceding decades. The earlier maps had passed muster following review by the Justice Department under the preclearance regime established by Section Five of the Voting Rights Act. But preclearance was no longer required after the Court’s consideration of changed conditions in Shelby County v. Holder (2013). An anomaly of voting rights law after Allen is that a district map that passed muster under Section Five preclearance, which was thought to involve the more stringent government scrutiny, now apparently has less of a chance of being sustained by courts under Section Two.

The dissenters in Allen, in an opinion by Justice Clarence Thomas, argued that the benchmark for the determination of whether a map is “equally open” to minority voter participation should be race-neutral. The majority disagreed, but they did not make clear what the benchmark should be. The Court notably ruled out “[f]orcing proportional representation” based on race—as it had to, given that the explicit text of the amendments to Section Two passed in 1982 made clear there was no such right to proportionality. But what in practical terms does that mean the Alabama legislature had to do differently in drawing another map?

The Court gave little specific guidance. It made several references to the relevance of traditional districting criteria, such as respecting existing political subdivisions and drawing contiguous districts. The plaintiffs, arguing that they were entitled to a second majority-minority district, had submitted eleven illustrative maps that met that goal. The state noted among its objections that the maps broke up a traditional community of interest within Alabama, the Gulf Coast region, but the Court was unmoved as it pointed out that the maps at least did more to bring together the Black Belt region. That is another community of interest with a high proportion of black voters, and although it is too large to be made into a single congressional district, it spanned three districts in the state’s map and two districts in the plaintiffs’ maps.

The case is back in the three-judge district court where it began, and the state legislature has submitted a new congressional map. This map better prioritizes keeping communities of interest together and surpasses the plaintiffs’ previously submitted illustrative maps in doing so. The current map keeps the Gulf Coast region together while doing as much as it can to keep the Black Belt together, confining it to two districts. The entire black population in the Black Belt totals about 300,000, so they could not by themselves comprise a majority of a congressional district. But while District 2 in the state’s earlier map, which covered much of the Black Belt, had a total black population of 30%, that number increases to 40% in the redrawn District 2.

The state’s new map scores better than or equal to the plaintiffs’ maps on county splits and geographical compactness. This presents the district court with a stark question: Is the operative standard in fact a requirement to reach racial proportionality with two majority-black districts, notwithstanding the Supreme Court’s language that there was no such entitlement?

The district court’s earlier opinion stated that “any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.” The Supreme Court’s opinion interestingly did not include this quote, but Justice Thomas’ dissenting opinion did as it revealed that the lower court was implicitly building proportionality into the test it applied. The Alabama legislature has done everything it could to comply with the Supreme Court while optimizing traditional districting criteria short of subordinating those standards to the plaintiffs’ aim to carve out a proportionality-driven majority-minority district. If the district court does not modify its earlier demand at the current stage of litigation, it can be expected to again invalidate the map. If that happens and the Supreme Court does not then step in to correct the error, it would be reasonable to conclude that the operative standard going forward does require racial proportionality, notwithstanding the Court’s protests to the contrary and the text of the Voting Rights Act that says otherwise.