Proponents of fair congressional maps breathed a sigh of relief this past June when the United States Supreme Court issued its opinion in Allen v. Milligan. The decision was in many ways unremarkable: a conventional application of the Court’s precedents involving Section 2 of the Voting Rights Act. Enacted to protect the voting rights of Black voters, Section 2 forbids laws that result in the denial or abridgment of the right to vote. Courts have interpreted Section 2 to prohibit racially gerrymandered congressional and legislative districts for decades, and precedent requires a state to draw a majority-minority district if certain preconditions are met. These are the now-familiar Gingles factors: the minority group must be numerous and geographically compact enough to constitute a majority in a reasonably drawn district; the minority group must vote sufficiently cohesively; and the minority must be situated with a white majority that operates as a bloc to defeat the minority group’s candidate of choice. After these preconditions are met, the totality of the evidence must support the existence of a majority-minority district for a court to order such a district be drawn.

States redraw congressional maps after each decennial census. Alabama decided to draw its map with only one majority-Black seat. Groups of plaintiffs sued, arguing that the Black voting age population in the state satisfied the requirements for two majority-Black seats, the second of which Section 2 required Alabama now to draw. A three-judge district court panel agreed that Alabama had shorted Black voters a majority-Black district and that the issue was not “a close one.” The panel issued a preliminary injunction, preventing Alabama from using the offending map. Alabama appealed to the Supreme Court and argued broadly for the Court to revisit its Section 2 standards. The Court issued a stay of the panel’s injunction and allowed the map to be used in the 2022 congressional elections, stoking fears in voting rights advocates that the case would provide a vehicle for the Court to limit the reach of Section 2 in redistricting cases. But in the end, the Court declined Alabama’s invitation to overhaul its Section 2 jurisprudence.

Instead of revisiting its caselaw on Section 2, the Court’s decision straightforwardly applied the existing precedent. The substance of the opinion would not have garnered much attention except for the fact that it was authored by Chief Justice Roberts, who has, in the past, been no friend to the Voting Rights Act, most notably gutting its preclearance requirements in 2013. Alongside the Court’s largely status quo–maintaining decision last term in Moore v. Harper, Milligan stood out to many court-watchers as reason to hope for future stability in the Court’s jurisprudence around voting rights and democracy.

And the chief’s opinion does contain some reason for optimism. Instead of rendering Section 2 a nullity as many voting rights advocates had feared, the decision broadly affirmed the Court’s framework for evaluating whether maps comply with Section 2. It expressed skepticism at the increasing reliance on arguments based on massive computer-generated map sets. In the end, the Court affirmed the three-judge district court panel and remanded the case so Alabama could draw a second majority-Black district. Some aspects of this unexpected outcome are likely explainable because of other cases decided last term at the same time as Milligan. The optics for the Court of significantly weakening Section 2, to the detriment of minority voters, during the same term as it issued its decision in Students for Fair Admissions v. President and Fellows of Harvard College, announcing that the practice of race-based admissions in higher education is unconstitutional, would have opened the institution up to even more criticism at a time when its approval is at a record low.

But the Court’s decision also contained some troubling signs for the future of Section 2. In response to Alabama’s argument that Section 2 is unconstitutional because it constitutes race-consciousness on the part of the government, Chief Justice Roberts did not engage with the constitutional argument and instead merely pointed to the Court’s long history of applying Section 2. Justice Kavanaugh, in his concurrence, picked up the absence of a full-throated defense of the constitutionality of Section 2. He noted that, in the future, litigants could raise the argument that race-conscious redistricting could “time-out” similar to race-consciousness in admissions. And Justice Kavanaugh declined to join the portion of the majority opinion discussing—and declining to adopt—Justice Thomas’s theory in dissent that any consciousness of race in the districting process rendered the process unconstitutional. Justice Kavanaugh appeared to be signaling that these arguments could potentially be well received in subsequent cases. And the explicit race-consciousness of Section 2 is now at odds with the Court’s stance on race-conscious admissions in higher education, creating tension that the Court will likely revisit in later cases.

Alabama, for its part, seems to have read too much into Justice Kavanaugh’s concurrence. Typically, litigants interpret signals like this as guides for how to craft new cases to bring before the Court. Alabama, however, decided it would push forward in the very same case the Court had already decided. After the Court’s ruling in June, the case went back to the three-judge district court panel so Alabama could draw a remedial map. Alabama requested a deadline extension and then signed into law a new map with, again, only one majority-Black district, in defiance of the Supreme Court’s order. The map contained a new district with about 40 percent Black voting age population, an increase from the 30 percent that district had in the initial map but not actually a majority. In a 217-page opinion issued on September 5, 2023, the district court panel preliminarily enjoined the new map and directed a special master to begin work on a map that complied with Section 2 and the Supreme Court’s opinion in Milligan. Alabama then filed an application for a stay pending appeal with the Supreme Court, arguing, among other things, that the Supreme Court’s opinion had not required them to draw a second majority-Black district, even though it plainly had.

On September 26, 2023, the Supreme Court denied Alabama’s request for a stay with no noted dissents. Alabama’s Attorney General wasted no time coming out in opposition to the special master’s proposed maps and indicated his intention to continue litigating over the new districts. On October 5, 2023, the district court panel, instead of Alabama, chose a remedial map. This map will be in effect during the 2024 Congressional elections and contains a second Black opportunity district. So voting rights proponents again breathe a sigh of relief, because for now, Alabama’s map will be fair, although likely still under threat of challenge. But the Court’s various writings in Milligan should not leave anyone feeling too sanguine about the longevity of Section 2. Voting rights advocates should not feel complacent because Alabama simply jumped the gun.

Emma Shoucair is a proud graduate of University of Michigan Law School. After two federal clerkships, she moved home to Pittsburgh, PA, and currently practices as an associate at Dentons Cohen & Grigsby. She focuses on constitutional and election law. Her opinions are her own.

Suggested citation: Emma Shoucair, The Outcome of Allen v. Milligan: A Tentative Victory for Voting Rights in Alabama, JURIST – Professional Commentary, October 8, 2023, https://www.jurist.org/commentary/2023/10/emma-shoucair-allen-milligan-voting-rights/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at commentary@jurist.org