How Alabama could get away with defying the Supreme Court

The Court ordered Alabama to draw a second congressional district where Black voters can elect their chosen candidate.

Last month, the Supreme Court held that Alabama violated the Voting Rights Act when it drew racially gerrymandered congressional districts. Under maps drawn by the state’s Republican legislature, Black voters (who make up more than a quarter of Alabama’s population) only had a real shot of electing a member of the US House in one of the state’s seven districts. The Court effectively ordered Alabama to draw a second district that was likely to elect a candidate preferred by Black Alabamians.

The state’s response to this Supreme Court decision was swift and defiant. Last week, the state legislature enacted new maps, which do not comply with the Court’s order. By the state’s own admission, only one of the seven districts in this new map has a Black majority. The district with the second-highest Black representation under the new maps is nearly 55 percent white — and less than 40 percent Black.

At least in the short term, this defiance is unlikely to be tolerated by the courts. The Supreme Court’s decision in Allen v. Milligan affirmed a lower court decision that also struck down the state’s gerrymandered maps. And the three lower court judges who heard this case wrote that it was not a “close one.” The lower court invited the plaintiffs challenging Alabama’s maps to submit their objections to the new maps by Friday, and it’s likely that the lower court will act swiftly to curb Alabama’s defiance.

Even so, there is a risk that the Supreme Court will not stand by its decision in Milligan once that lower court’s decision is appealed (again) to the justices.

Milligan was probably the most surprising decision the Court handed down in its recently completed term. Although it did nothing more than apply to Alabama’s maps the framework the Court announced nearly 40 years ago in Thornburg v. Gingles (1986), that framework — and the provision of the Voting Rights Act that it rests on — have been under siege from the Court’s Republican-appointed majority for a very long time.

Both Milligan and Gingles turned upon a provision of the Voting Rights Act added to the law in 1982, which prohibits any state election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” This “results test” requires state laws to be struck down if they have a negative effect on voters of color, even if the plaintiffs challenging a state law cannot show that it was written with racist intent.

While this 1982 amendment to the Voting Rights Act was being debated in Congress, however, a faction of right-wing lawyers within the Justice Department unsuccessfully tried to convince President Ronald Reagan to veto it — and one of the central figures in this anti-Voting Rights Act faction was future Chief Justice John Roberts. One reason the Milligan decision was so surprising was that Roberts wrote it, and he appeared to give up his 41-year crusade against the results test in his opinion.

But Milligan was also a 5-4 decision, and Republican appointees have a 6-3 supermajority on the Supreme Court. So Roberts’s vote was not enough to preserve Gingles’s safeguards against racial gerrymandering.

Although Justice Brett Kavanaugh provided the fifth vote against Alabama’s maps in Milligan, he also wrote a brief and cryptic concurring opinion that seemed to suggest that the results test must have a sunset date. “Even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time,” Kavanaugh wrote, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

The Alabama GOP’s open defiance of the Court’s decision in Milligan suggests that it thinks it has a real shot of picking up Kavanaugh’s vote if this case goes up to the Supreme Court a second time. And this Court has shown such hostility toward the Voting Rights Act in the past that there is a decent chance that Alabama’s second attempt to gerrymander the state could prevail.

Kavanaugh’s concurring opinion in Milligan, briefly explained

Under longstanding law, Milligan was a very easy case.

Gingles requires litigants challenging a racial gerrymander to make several factual showings to prevail — such as showing that voters of color tend to vote together for one candidate, while white voters tend to vote “sufficiently as a bloc to enable [them] ... to defeat the [Black voters’] preferred candidate.” But, as Roberts wrote in his Milligan opinion, the lower court’s determinations that these plaintiffs cleared the bars established by Gingles “have gone unchallenged by Alabama.”

Instead, Alabama largely argued that the Court should place new and additional barriers in front of voting rights plaintiffs that are not required by the Voting Rights Act or the Court’s previous decisions. In Milligan, five justices decided not to do so.

Yet while Kavanaugh joined Roberts’s opinion, he also published a brief concurring opinion suggesting that he might have flipped his vote if Alabama had made a different legal argument. Kavanaugh seemed to claim that Congress’s power to ban racial gerrymandering, at least under the Voting Rights Act results test, “cannot extend indefinitely into the future.”

This claim that much of the Voting Rights Act must sunset at some undetermined point in the future closely tracks the policy argument the Court’s Republican appointees relied on in Shelby County v. Holder (2013), which neutralized a separate provision of the Voting Rights Act that required states with a history of racist election practices to “preclear” new state voting laws with officials in Washington, DC, before those laws could take effect.

Shelby County claimed that “the conditions that originally justified” this preclearance regime, which is known as Section 5, “no longer characterize voting in the covered jurisdictions.” Essentially, Shelby County argued that the states that were required to comply with Section 5 — mostly Southern states with a history of Jim Crow racism — were no longer racist enough to justify the “strong medicine” prescribed by the Voting Rights Act.

Shelby County relied on novel legal reasoning that appears to be more grounded in longtime Republican Party grievances against the Voting Rights Act than in any actual provision of the Constitution. Indeed, Shelby County did not even try to explain how its holding could be justified under the text of the Constitution, which provides that Congress has the power to enforce a prohibition on race discrimination in elections.

But even if you accept Shelby County’s novel and atextual legal arguments as legitimate, Kavanaugh’s suggestion that other provisions of the Voting Rights Act must sunset would be a massive expansion of the Court’s decision in Shelby County.

Shelby County emphasized that Section 5 was an unusual provision of law. Roberts described Section 5 as “extraordinary measures to address an extraordinary problem,” and he pointed to two factors that marked it as extraordinary: 1) It treated some states differently than others; and 2) It prevented many state laws from ever going into effect until they were screened by federal officials.

Neither of these factors existed in Gingles, Milligan, or any other case brought under the Voting Rights Act’s results test. Gingles and the results test it relied on applies to all 50 states, not just to a handful of states with a particularly nasty history of racist election practices. And the results test does not automatically suspend state laws in the same way that Section 5 does. Indeed, Alabama’s illegal maps not only took effect, but they were used during the 2022 midterm elections.

Under the results test, a state election law only ceases to function after a plaintiff convinces the courts that such a law violates the Voting Rights Act.

Nevertheless, as Shelby County itself demonstrates, this Supreme Court’s Voting Rights Act decisions are frequently unmoored from either the text of the Constitution or the text of the Voting Rights Act itself — not to mention longstanding precedents interpreting that law. So, while there’s nothing in the Constitution that suggests that any provision of the Voting Rights Act must sunset, that won’t stop Kavanaugh from flipping his vote if he is determined to uphold Alabama Republicans’ second effort to gerrymander their state.

So is Kavanaugh really going to let Alabama defy his Court?

If Alabama decides to press its case for its second gerrymander, there is a very good chance the Supreme Court will have to hear the Milligan dispute again. While the Supreme Court typically gets to pick and choose which cases it wants to hear, a small minority of lawsuits — many of which involve election disputes — fall within the Court’s mandatory jurisdiction (meaning that the Court typically must hear those cases).

Milligan fell within the Court’s mandatory jurisdiction the first time it was heard, and it is unlikely that anything will change as the new maps are litigated.

That said, there are some reasons to doubt, should this case come before the justices again, that Kavanaugh will reverse course so soon after he cast his surprising vote to follow existing law in Milligan. It’s possible, for example, that he won’t want to reward Alabama’s decision to treat his Court’s decisions as optional.

Similarly, as Slate’s Mark Joseph Stern notes, Kavanaugh recently touted his vote in the Milligan case as proof that his Court is “an institution of law, not of partisanship, not of politics,” during a speech to a judicial conference in Minnesota. That argument obviously amounts to nothing if Kavanaugh permits Alabama Republicans to gerrymander their state under the new maps.

That said, while Kavanaugh’s concurring opinion in Milligan is brief, it does offer some hint as to why the justice may be open to extending Shelby County. Specifically, Kavanaugh describes the anti-gerrymandering safeguards announced in Gingles as a kind of “race-based redistricting.” And he joined the Court’s anti-affirmative action decision in Students for Fair Admissions v. Harvard (2023), which claims that “all manner of race-based state action” is invalid.

It seems likely, in other words, that Kavanaugh views the Voting Rights Act’s safeguards against racial gerrymandering as a form of affirmative action — which would make it suspect under his version of the Constitution.

In any event, Kavanaugh’s concurrence in Milligan is too brief to provide a complete window into his understanding of the Voting Rights Act. So it remains to be seen how Kavanaugh will vote if Alabama’s defiant new gerrymander reaches his Court a second time.

But his concurring opinion makes it clear that Kavanaugh is, at least, open to arguments that longstanding safeguards against racial gerrymandering should cease to exist.