njsbf new jersey state bar foundation logo a 501c3 non profit organization

Informed Citizens

are Better Citizens

by Phyllis Raybin Emert

Every 10 years, after the U.S. census figures are released, congressional voting districts in 43 states are required by law to be redrawn to account for population shifts. Congressional districts are the 435 areas across the country from which members are elected to the U.S. House of Representatives. There are seven states—Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming—that only have one representative in the House, so no redistricting is necessary.

In June 2023, the U.S. Supreme Court issued a decision in Allen v. Milligan. The Court was asked to determine whether Alabama’s redrawn congressional redistricting plan violated Section 2 of the Voting Rights Act. The Voting Rights Act (VRA) was signed into law in August 1965 by then President Lyndon B. Johnson. Section 2 of the VRA “prohibits voting practices or procedures that discriminate on the basis of race,” which includes incidents of vote denial, as well as vote dilution. Vote denial is when a person is denied the opportunity to cast a ballot. Vote dilution is when the strength of someone’s vote is diminished using the practices of packing or cracking.

A violation of Section 2 occurs when members of a protected class, for example Black voters, “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In other words, Section 2 protects against racial gerrymandering.

First some background

In the redistricting process—when the lines for voting districts are redrawn—gerrymandering often occurs. The term gerrymander dates back to 1812. The word was coined to mock Massachusetts Governor Elbridge Gerry’s approval of a voting district map that was manipulated to favor his party. The shape for one district on the map looked like a salamander. Gerry + salamander = gerrymander. More than 200 years later, the term is still being used.

There are two types of gerrymandering—partisan and racial. Partisan gerrymandering is based on political party lines, where voters from one particular party are favored over another. The U.S. Supreme Court has ruled that it is not for federal courts to decide on issues of partisan gerrymandering, leaving it up to Congress to remedy the issue. Racial gerrymanders, however, where lines are drawn along racial or ethnic lines has been determined by the Court in prior decisions to be unconstitutional.

Eugene D. Mazo, a professor at Seton Hall University Law School and an expert on election law and the voting process, points out that historically both parties—Republican and Democrat—gerrymander using methods of “packing” and “cracking” to manipulate congressional lines on a map to create districts that favor certain groups.

“Politicians can ‘pack’ like-minded voters into a single district, thus wasting the strength of their votes in other districts,” explains Professor Mazo. “‘Cracking’ works by dividing voters from a single district into two or more districts.” Cracking effectively dilutes the power of a certain group’s vote.

Understanding Milligan

To understand the U.S. Supreme Court’s decision in Allen v. Milligan, Professor Mazo believes you need to first understand the Court’s 1986 decision in Thornburg v. Gingles, which also interpreted Section 2 of the Voting Rights Act, coming up with a three-prong test for vote dilution claims.

“In Gingles, the Supreme Court explained that when certain conditions were present in society, legislators had to draw electoral districts from which a minority population could elect a representative of its choice,” says Professor Mazo. “Specifically, this had to be done when (1) a minority group was sufficiently large [in number] and geographically compact [living closely together] that it could constitute a majority of its own in a single district; (2) this minority group was politically cohesive [a significant portion would support the same candidate]; and (3) the majority population [usually white] voted consistently as a bloc to defeat minority candidates.”

At the time Alabama lawmakers drew the voting map at issue in Milligan, African Americans made up 27% of the state’s population, yet of the seven congressional districts in the state, only one was a majority-Black district. The plaintiffs in the case contended that Alabama’s voting map “packed” most of the state’s Black voters into the 7th congressional district and “cracked” the remaining Black voters into three other districts.

“The three Gingles conditions were present in Alabama,” Professor Mazo notes, “so the plaintiffs in Milligan argued that a second majority-minority congressional district had to be drawn in the state during the latest redistricting cycle.”

A majority-minority district simply means that members of a minority community, in this case African Americans, should be the majority of residents in the district. A three-judge panel of the U.S. Court of Appeals for the 11th Circuit agreed with the plaintiffs in Milligan and ordered Alabama to draw a second majority-minority Black district “in which Black voters either comprise a voting-age majority or something close to it.”

The state of Alabama objected to the lower court’s decision and appealed to the U.S. Supreme Court. Professor Mazo explains that Alabama argued a new map wasn’t necessary.

“To comply with the Voting Rights Act, Alabama argued it had to draw only race-neutral districts,” Professor Mazo says.

The Court’s ruling

In a 5-4 decision, the U.S. Supreme Court affirmed the judgement of the three-judge panel, ruling that Alabama violated Section 2 of the VRA. The Court called Alabama’s argument in the case an “attempt to remake our Section 2 jurisprudence anew.” The ruling required Alabama to draw an additional majority-minority Black district and held that Section 2 of the VRA is constitutional.

“The Court’s opinion does not diminish or disregard the concern that Section 2 may impermissibly elevate race in the allocation of political power within the states,” Chief Justice John Roberts wrote in the Court’s majority opinion. “Instead, the Court simply holds that a faithful application of precedent and a fair reading of the record do not bear those concerns out here.”

Professor Mazo explains that Chief Justice Roberts was saying that the Court was just following the precedent set in Gingles.

In his dissenting opinion, Justice Clarence Thomas questioned whether Alabama should “intentionally” redraw districts so black voters can control seats proportional to their population numbers. “The law,” Justice Thomas wrote, “demands no such thing and, if it did, the Constitution would not permit it.” In his dissent, Justice Thomas maintains that the VRA only ever applied to laws that regulate access to the ballot box, not to redistricting.

Alabama back in court

In July 2023, Alabama lawmakers approved a new congressional map that diminished the majority Black voting district established in the previous map to 50.65% and created another district comprised of 40% Black voters, not enough to elect the candidate of their choice. The new map does not comply with the U.S. Supreme Court’s ruling and was reviewed in August 2023 by the same three-judge panel of the U.S. Court of Appeals for the 11th Circuit.

In September 2023, the judges issued an order rejecting Alabama’s revised map and directed a special master to create three remedial voting district plans that address the lower court and U.S. Supreme Court rulings. In the order, the 11th Circuit judges chastised Alabama for defying the Court’s wishes.

“We are not aware of any other case in which a state legislature—faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district—responded with a plan that the state concedes does not provide that district,” the judges wrote. “The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice. The 2023 Plan plainly fails to do so.”

Alabama argued that the new map should be considered on its own merits, not in light of whether the state complied with the Court’s order. In addition, the state said that if the new map was rejected, the state would need to be granted more time to fix it.

The judges wrote, “In essence, the state creates an endless paradox that only it can break, thereby depriving plaintiffs of the ability to effectively challenge and the courts of the ability to remedy.” The judges called the state’s position “an infinity loop restricted only by the state’s electoral calendar and terminated only by a new census.”

Alabama filed an emergency request with the U.S. Supreme Court, asking to use its redrawn map for the 2024 election. In September 2023, the Court refused that request. In October 2023, the three-judge panel picked one of the three districting plans created by the special master.

According to Democracy Docket, a media platform that tracks election litigation, in addition to Alabama, the congressional voting maps in 11 other states—Arkansas, Florida, Georgia, Kentucky, Louisiana, New Mexico, New York, Ohio, South Carolina, Texas and Utah—are being challenged. Republicans currently control the U.S. House of Representatives by a thin margin—221 to 212, with two vacant seats. With such slim numbers, the stakes in congressional map challenges could be crucial in deciding which party takes control of the House in 2024.

Discussion Questions

  1. What is the value in creating majority-minority voting districts? Explain your answer.
  2. Is the Voting Rights Act of 1965 still relevant in today’s society? If so, how? If not, why not?

Glossary Words
— to uphold, approve or confirm.
appealed— when a decision from a lower court is reviewed by a higher court.
dissenting opinion — a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
gerrymandering—manipulating the boundaries of a community to favor one political party or class over another.
jurisprudence—the philosophy of law.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
partisan — someone who supports a particular political party or cause with great devotion.
precedent — a legal case that will serve as a model for any future case dealing with the same issues.

This article originally appeared in the fall 2023 issue of Respect, NJSBF’s diversity & inclusion newsletter.