On June 8, 2023, the U.S. Supreme Court issued its decision in Allen v. Milligan, (formerly known as Merrill v. Milligan) and upheld the previous unanimous district court’s determination that Alabama’s maps violate Section 2 of the Voting Rights Act, ruling that the map discriminates against Alabama voters. The decision means that Alabama will have to redraw its congressional map and add an additional majority-Black district. The Court also rejected Alabama’s argument that Section 2 means that redistricting must be race-neutral.
On Oct. 4, 2022, Legal Defense Fund (LDF) Senior Counsel Deuel Ross presented oral argument in the redistricting case Merrill v. Milligan, the organization’s first case before the United States Supreme Court in six years. LDF has a long history of arguing before the Supreme Court. Our founder, Thurgood Marshall, argued 32 cases before the nation’s highest court, and won 29 of them. Former LDF litigator and the nation’s first Black woman to serve as a federal judge, Constance Baker Motley, won nine of the 10 cases she argued. With LDF back before the Court in Merrill v. Milligan, we take a closer look at the case’s details and potential ramifications, as well as provide on-the-ground insights as to how the LDF team’s day unfolded.
Merrill v. Milligan (known as Milligan v. Merrill in lower courts) involves a claim brought by Black voters challenging Alabama’s congressional map drawn in 2021 for violating Section 2 of the Voting Rights Act (VRA) of 1965, which prohibits racially discriminatory voting practices and procedures. The claim argues that Alabama officials “packed and cracked” Black communities into legislative districts in a manner that severely dilutes their political power, preventing Black voters from electing candidates of their choice who represent their interests. This is illustrated by the fact that Black people make up nearly 27% of the state’s population, but control only one out of the state’s seven congressional districts (14%).
LDF has long been involved in advocating for voting rights in Alabama during the redistricting process and beyond. In fact, during the most recent redistricting cycle, LDF became involved early on to try to ensure that the state’s maps would accurately represent Alabama’s growing Black community. While Alabama has a concerning history of voter suppression, including in the development of previous iterations of congressional and state legislative maps, LDF was hopeful that state officials would finally heed their constituents’ demands for proper representation.
However, rather than draw a fair congressional map, the legislature chose to split Alabama’s Black Belt among multiple districts — and then pack the remaining Black voters into one district. Shortly after the map was signed by Governor Kay Ivey, LDF sued the state on behalf of several individual voters, the Alabama Conference of the NAACP, and Greater Birmingham Ministries, arguing that the map violated Section 2 of the VRA by diluting Black voting strength. In January 2022, a federal court made up of three judges – including two appointed by President Donald Trump – unanimously ruled that Alabama’s congressional map likely caused irreparable harm to Black voters in the state and ordered lawmakers to draw a new map that complied with the VRA. Instead, Alabama appealed the decision to the Supreme Court, which stayed LDF’s win that mandated the redrawing of the state’s map until it issues an opinion.
The ramifications of the Court’s forthcoming decision will be felt beyond Alabama. In addition to determining whether the state must redraw its congressional map, the court is also examining the role of race in redistricting nationwide — an especially critical notion since the consideration of race has long been important in order to remedy discriminatory maps in line with the VRA. Therefore, the outcome of Merrill v. Milligan will have long-lasting implications at every level of government throughout the country.
The gravity of these implications has always been top of mind for LDF — and that was evident on the day of oral arguments. The morning started early, as litigators were already waiting in line at the court by 6 a.m. and the public audience queue was at least 50 strong. There was an urgency, excitement, and profound sense of duty in the air among LDF staff, who were there to support their colleague as he made his debut at the Court – and, even more importantly, to back Black Alabamians in their fight for fair representation and the VRA’s preservation.
When Ross arrived, he greeted his family and colleagues. Everyone embraced and shared words of encouragement before heading into the courthouse. Arguments commenced at 10 a.m. Alabama’s lawyer, the state’s Solicitor General Edmund LaCour, presented first and faced about an hour of subsequent questioning from the justices. Justice Ketanji Brown Jackson, the most recent addition to the bench and the first Black woman to serve as a Supreme Court justice, was persistent in questioning LaCour’s contradictory arguments suggesting that Alabama’s initial map was race-neutral and that redrawing it to ensure that it was no longer racially discriminatory would violate the Equal Protection Clause of the Fourteenth Amendment. Justice Jackson employed originalism – a constitutional interpretation typically favored by conservative justices – to explain the purpose of the Fourteenth Amendment: to encourage race consciousness in remedying systemic racism following the abolition of slavery.
Ross presented next. He did not receive many questions from the justices, which is typically seen as a sign that one’s argument is strong. His opening line, “There is nothing race-neutral about Alabama’s map,” became widely popular on Twitter and in media coverage about the case, because it demonstrated the deeply hypocritical nature of Alabama’s argument.
He continued, “The district court’s unanimous and thorough intensely local analysis did not err in finding that the Black Belt is a historic and extremely poor community of substantial significance. Yet, Alabama’s map cracks that community and allows white bloc voting to deny Black voters the opportunity to elect representation responsive to their needs. Rather than argue clear error, Alabama asks us to ignore statutory stare decisis [precedent] and to rewrite Section 2’s text” by arguing that plaintiffs must demonstrate that Alabama intended to engage in discrimination when it drew the maps for a Section 2 violation to apply.”
Ross added that “Section 2 is not an intent test or about putting on racial blinders. It is about equal opportunity, opportunity that Alabama’s map denies Black voters.” This distinction was an important one, as Alabama sought to frame race consciousness in redistricting as something that would result in inequality and discrimination – a nonsensical proposal, considering the purpose of Section 2. After Ross’ argument and questioning concluded, co-counsel Abha Khanna, partner at Elias Law Group, and Elizabeth Prelogar, the Solicitor General of the United States, delivered arguments supporting Ross’s reasoning.
Following the Court session, LDF hosted a press conference featuring both litigators and clients, who all greeted one another like family. For some, this was their first time meeting in-person, despite working extensively on the case together over many months.
Once the event began, every client stood behind the podium holding signs that read “Fight for Fair Maps,” creating a powerful backdrop as speakers gave their remarks. Ross spoke first, highlighting that LDF is “here because of the incredible work that our clients have been doing for many decades, fighting for fair maps and fighting for opportunities to ensure that the Voting Rights Act remains strong.” He stressed that the plaintiffs are “not looking for any kind of guarantee … what our clients are looking for looking for is a fair chance, an equal chance.”
Evan Milligan, the case’s lead plaintiff, subsequently delivered deeply personal and uplifting remarks: “One of the things that we’ve tried to say as plaintiffs… is I wish folks could have a real good sense of who these plaintiffs are standing behind me…”
He continued, “We model the type of diversity that we’re very proud of in our state … It’s really important to affirm that diversity because it actually gives us something to be hopeful for now as we look at our country, [because] we see this drum beat around how too much diversity, or having too many opinions, makes a society that is somehow less manageable. And, as advocates for democracy and multicultural democracy, we really believe that [it] is actually even more possible to have a more equitable society when we have different people [working together].”
Another client, Shalela Dowdy, followed Milligan with an equally powerful statement. “Throughout the years there have been obstacles and voter suppression tactics put in our way to prevent us from voting, such as the fear of being lynched, having to pass literacy tests, having to recite the preamble from the Constitution … and so much more,” she emphasized. “Today, the voter suppression continues, but in disguise through voter ID requirements, lack of language access, voting roll purges, polling place closures and consolidations, no early voting in some states (such as Alabama), reduced early voting in others… and the list goes on.”
And now, Dowdy continued, “We are faced … with the voter suppression tactic of gerrymandering … This case will determine whether Black Alabamians will be heard or silenced [and] whether Black communities will get the proper support and funding that is needed concerning healthcare, education, and infrastructure. The voice and livelihood of Black Alabamians are at stake … and because of that, we fight.”
When LDF was founded in 1940, dedicated attorneys, with the steadfast support of organizers, community leaders, and activists, relentlessly sought to combat systemic racism and achieve racial justice and equality under the law, fighting many battles in courtrooms throughout the country. 82 years after LDF’s founding, this fight continues, and the stakes may be higher than ever, considering the recent relentless rollback of the civil rights that so many fought to secure and protect.
In fact, this case is not about expanding voting rights, but protecting their very existence – and Black voters’ fundamental right to representation. As the country awaits the court’s opinion, LDF and its partners will continue to confront all aspects of voting rights incursions to ensure Black voters can exercise their political power, and will be monitoring for voter suppression tactics, challenging barriers to the ballot, and educating the public about civic engagement and their constitutional rights throughout this election season. Indeed, LDF’s return to the Supreme Court in Merrill v. Milligan is emblematic of just how much work remains in this fight – and of the unyielding commitment of civil rights allies and advocates to ensuring justice and equality for all.
LDF’s Jared Evans, Policy Counsel, and Michael Pernick, Redistricting Counsel, reflect on the unique and impactful nature of this redistricting cycle.
Understanding the role of race the redistricting process as a means of ensuring equitable representation and political power is critical.
LDF has been working in key states throughout the 2021 redistricting cycle to ensure maps are drawn fairly and do not discriminate against Black voters.
We’ve compiled answers to frequently asked questions about Merrill v. Milligan and its impact on voting rights and redistricting.