By Peter White
Alabama must redraw its congressional maps to create one more majority-black voting district. The 5-4 Allen v Milligan decision will impact about 30 redistricting lawsuits in ten states where gerrymanders diluted the political power of minority voters.
Evan Milligan got news of the June 8 SCOTUS decision ordering Alabama to redraw its congressional maps while attending a workshop on the Holocaust in a Berlin church. It was the same church where Martin Luther King famously delivered a sermon in 1964.
After years of demoralizing roll backs on voting rights, Milligan, the lead plaintiff in the case, said he was first stunned, then overjoyed to hear the news.
“There were many people who said our case was not going to prevail and it was a long shot. Lots of things are long shots,” Milligan told reporters during a June 16 EMS news briefing. “But it doesn’t mean you shouldn’t take the shot.
Race Neutral Maps
“It’s a win,” he said.
Evan Milligan, lead plaintiff in the case Allen v Milligan and Executive Director of Alabama Forward.
In Allen v Milligan, Alabama argued that election maps must be race neutral. But Alabama’s maps – which a lower court initially rejected – were nothing if not race conscious. Alabama’s Republican lawmakers packed one district with African Americans and spread others from Alabama’s “Black Belt” across three different districts, thereby diluting the Black vote.
“Of all the places to receive this news,” Milligan, Executive Director of the voting rights advocacy non-profit Alabama Forward, told the news site Alabama.com. “I broke down in tears” thinking about the legacy this means for my dad.” Milligan’s father, Bill, died in 2021 before the case was argued at the Supreme Court.
The 5-4 decision now means Alabama will have to redraw its electoral maps. The ruling also means that Georgia, Mississippi, Louisiana, and South Carolina – all of which have similarly gerrymandered maps in place – may have to redraw their maps, too.
‘Too Late to Undo Damage’
Thomas Saenz, President and General Counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), said he was surprised by the ruling, which upheld Section 2 of the Voting Rights Act, given that SCOTUS overturned longstanding legal precedent when it struck down Roe v Wade last year.
He also pointed out that the June 8 decision comes too late to undo the damage done by gerrymandered maps in a slew of states that were used during the 2022 midterms, effectively denying Black voters and voters of color representation.
“That clearly determined at least one seat in the House of Representatives,” Saenz said.
Stuart Naifeh manages the Redistricting Project at the NAACP Legal Defense & Educational Fund (LDF). He argued the Milligan case in District Court and was involved in the Supreme Court proceedings.
Victory Well Beyond Alabama
“It is a victory that we have preserved Section 2 and this case has impacts well beyond Alabama,” Naifeh said.
Since the 1980s the Supreme Court has used a race-conscious framework in VRA Section 2 cases. And it used that standard to decide Allen v Milligan.
Stuart Naifeh manages the Redistricting Project at the NAACP Legal Defense & Educational Fund (LDF).
“Alabama in this case had argued that the framework should be thrown out,” explained Naifeh, and “that a new framework should be adopted – which they called ‘race neutral.’”
Essentially, he continued, the state argued “that you cannot consider race when you’re trying to remedy racial discrimination. So, it is kind of a nonsense proposition that race can’t be considered to remedy racial discrimination, but that is what Alabama was advocating.”
And while Naifeh celebrated the ruling, he also reminded reporters that ultimately its effect is to uphold the status quo on voting rights, which he said are in need of reform.
Jacqueline De Leon is staff attorney at Native American Rights Fund (NARF), the nation’s largest and oldest nonprofit, dedicated to advancing the rights of Native Americans.
“At NARF, we all breathed a collective sigh of relief after Milligan,” De Leon says.
The plaintiffs built an “undeniable record” in the case to uphold Section 2 of the VRA.
“I hope a small part of that was lifting up how Native American communities also continue to have their votes diluted through racial gerrymanders,” De Leon said.
NARF submitted an amicus brief in Milligan that outlined contemporary examples of racial discrimination in native communities; it gave lengthy descriptions out of South Dakota, North Dakota, and New Mexico where NARF won voter dilution cases during the last decade.
Jacqueline De Leon is staff attorney at Native American Rights Fund (NARF)
In its brief, Alabama tried to make it seem as if at-large districts, where seats are allocated based on the top vote-getters, no longer existed. But in Indian Country that’s how Native Americans are disenfranchised, De Leon explained.
For example, if a population is 40% native, and could reasonably expect to win two out of five seats on the county commission, the method of at-large elections meant that the Indian candidates were never chosen, and that all five seats ended up going to people in the white border towns, adjacent to the native American reservations. That violates the VRA, De Leon noted.
NARF brought a successful voting rights case during the Trump administration involving an at-large method of election that diluted native votes. The case was a school board election in Chamberlain, South Dakota, where an at-large election denied native representation on the board.
In Lyman County, South Dakota, the county admitted the election for County Commissioner violated the VRA, but they refused to implement a remedial plan for two years. So NARF sued. Benson County, North Dakota, was out of compliance with a consent decree for 10 years so NARF sued them and reached another consent decree.
“You can be assured we will be monitoring very closely,” De Leon stressed.
Meanwhile, De Leon is waiting “with bated breath” on the outcome of a trial she just finished in North Dakota.
“We were challenging the state’s legislative map under Section 2,” said De Leon. The Milligan decision could decide it.
“A super majority of the Turtle Mountain band of Chippewa Indians were packed into a single house subdistrict and other Turtle Mountain citizens were cracked into other house subdistricts and Spirit Lake into another house district.”
De Leon says because of those gerrymanders, representation goes down from two possible house seats to just one. That is just what happened in Alabama.