On October 4, 2022, the U.S. Supreme Court heard oral arguments in the consequential redistricting case Merrill v. Milligan. The case was argued by LDF Senior Counsel Deuel Ross and challenges Alabama’s redistricting maps that deny Black residents an equal opportunity to participate in the political process and elect candidates of choice. The case was brought on behalf of Evan Milligan, Khadidah Stone, Letetia Jackson, Shalela Dowdy, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP. LDF is joined by co-counsel American Civil Liberties Union; ACLU of Alabama; Wiggins, Childs, Pantazis, Fisher & Goldfarb; and Hogan Lovells LLP.
Merrill v. Milligan is the most important redistricting case to come before the Supreme Court in recent history. The Court’s decision will have major implications for the future of voting rights, and redistricting. The ruling could roll back critical, long-standing protections for communities of color in redistricting and voting.
We’ve compiled answers to frequently asked questions about the case and its impact.
Yes. The state of Alabama has a long, well-documented history of discrimination in redistricting and voting. These discriminatory redistricting policies and maps are directly linked to Alabama’s historical and present racial discrimination against Black people. In five of the six redistricting cycles since 1960, the U.S. Department of Justice or federal courts have found that Alabama’s legislative districts — congressional, state, or both — have violated the rights of voters under the U.S. Constitution or the Voting Rights Act.
In 2013, the Supreme Court ruling in Shelby County, Alabama v. Holder effectively dismantled Section 5 of the Voting Rights Act and the pre-approval process that required states with histories of racial discrimination in voting and redistricting to seek approval from the federal government before implementing plans. The absence of the federal pre-clearance process is a major detriment to voters of color.
Evan Milligan is a lifelong Montgomery, Alabama, resident. He is a longtime voting rights activist and organizer. He and other local organizations sued the state to challenge the congressional map, which splits the county and city of Montgomery into two districts and divides up the Black Belt. The district where Mr. Milligan resides in Montgomery is the only majority-Black district in the state. On the other side of the city, Black voters are placed in a separate, majority-white congressional district, thereby diluting their voting power.
LDF represents Mr. Milligan in the case.
Yes and no. The Voting Rights Act of 1965 (VRA) was enacted to ensure all voters have an equal opportunity to participate in the political process and elect candidates of their choice. When it was passed in 1965, the VRA was intended to protect Black voters from Jim Crow era voting laws and gave voters a mechanism to challenge discriminatory laws in federal court. Several of the VRA’s protections against voter discrimination, including Section 5 pre-clearance, have been dismantled in recent years. Now, the Milligan decision could strike down Section 2.
Section 2 of the VRA, which is at the center of Merrill v. Milligan, prohibits voting policies that discriminate on the basis of race, color or membership in one of the noted language minority groups. Historically, Section 2 has been use to strike down discriminatory redistricting policies that “pack” and “crack” communities of color and dilute their voting strength. Section 2 has also been used to strike down at-large voting systems that weaken Black voters’ political power.
Dismantling Section 2 would require all redistricting policies to be race-neutral, despite the fact that Section 2 was established to protect against racial discrimination and ensure that voters of color have an equal opportunity to elect candidates of their choice. Section 2 protects majority-Black districts against vote dilution.
In January 2022, a federal court struck down the Alabama’s newly drawn congressional map in a unanimous decision, holding that the map violated the Voting Rights Act. The federal court ordered the state legislature to draft a new congressional map that complies with the Voting Rights Act. Alabama swiftly appealed the ruling and the Supreme Court granted their bid to block the state from having to redraw its map while the case is being litigated and leaves the current, discriminatory map in place for the 2022 election season.
The Supreme Court has previously struck down several protections against discrimination. In 2013, the Court struck down Section 5 of the VRA in its Shelby County v. Holder decision. For nearly 50 years, Section 5 halted discriminatory voting laws before they were implemented. Without Section 5 pre-clearance, Section 2 is one of the few protections left against voter discrimination.
Section 2 of the VRA is now under threat and could be struck down with the Milligan decision. The question at the heart of the Milligan case is: Does Alabama’s redistricting map for its seven congressional seats violate Section 2? LDF has argued that it does.
The decision in Merrill v. Milligan could make it extremely difficult for communities of color everywhere to challenge redistricting maps that discriminate on the basis of race and deny voters of color the opportunity to elect candidates of their choice. The case will also determine whether race can be considered at all in redistricting, including as a means to remedy racially discriminatory maps.
The decision — regardless of outcome — will have nationwide implications, impacting redistricting in all states at every level of government from Congress down to local school boards. If the Court rules in favor of Alabama, it would mean that states’ “race-neutral” rules would take precedence over minority representation and hold more weight than the Voting Rights Act (VRA). Such a decision would strip what’s left of the VRA’s enforcement power and dismantle protections for voters of color.
LDF Senior Counsel
Prohibiting racial considerations in the redistricting process would have a devastating impact on Black representation and political power. We outline what’s at stake in Merrill v. Milligan and the impact of “race-neutral” redistricting.
LDF Policy Counsel Jared Evans and Redistricting Counsel Michael Pernick reflect on the unique and impactful nature of this redistricting cycle.
LDF has been closely monitoring the redistricting process in key states to ensure that maps are drawn fairly and do not disenfranchise Black voters. LDF has filed lawsuits in several states challenging discriminatory maps.
