The United States Supreme Court will soon consider a major redistricting case that could have significant nationwide implications. In Milligan v. Merrill (now known as Merrill v. Milligan before the Supreme Court), in which LDF is delivering oral arguments, the Court will determine whether Alabama’s new congressional map violates the Voting Rights Act (VRA) of 1965 by placing Black voters into legislative districts in a way that dilutes their political power. Critically, 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 could have nationwide implications, impacting redistricting in all states at every level of government from Congress down to local school boards.
When taken at face value, a race-blind method of drawing new maps may sound like a fair way to organize electoral districts. However, prohibiting racial considerations in the redistricting process would actually have a devastating impact on Black representation and political power – and undermine longstanding Supreme Court precedent. Indeed, in light of the Court’s consideration of Milligan, it’s critical to understand the important role that race plays in the redistricting process as a means of ensuring equitable representation and political power, as well as to be aware of how removing race from redistricting would undermine our democratic institutions.
Every 10 years, the federal government conducts a census to collect data that reflect demographic changes and trends from the preceding decade. For example, the 2020 census revealed that people of color drove 95% of Texas’s population growth from 2010-20. It also found that the state has three of the five fastest-growing cities in the country. Data like these are crucial when state lawmakers begin drawing new legislative maps, as it is their responsibility under Section 2 of the VRA to ensure that growing communities of color are fairly represented.
Fulfilling that obligation requires states to look at voting patterns along racial lines to ensure that the voices of voters of color are not being sidelined or drowned out because of the way the district lines are drawn. This can happen in states or localities where voters of color tend to have different candidate and policy preferences from white voters, and where they are relegated to an insubstantial minority in most or all districts. In those circumstances, it becomes virtually impossible for communities of color to influence who gets elected or what policies their elected representatives pursue.
However, despite this reality, many state officials have blatantly ignored this responsibility following the 2020 census, disregarding pleas to adhere to the law and related guidance from civil rights advocates, grassroots organizations, and community leaders. And, on top of this, recent Supreme Court decisions have limited or eliminated protections that were previously in place to prevent lawmakers from drawing racially discriminatory maps. The consequences of these actions could be ruinous for Black political power.
For example, the Louisiana voting age population is around 33% Black and 58% white. Yet, in 2021, state officials passed a congressional map where Black Louisianans are the majority in only one of the state’s six districts. At the same time, Louisiana’s stark polarized voting patterns mean that candidates supported by Black voters have never been elected in a district where they are not the majority. Essentially, this means that Black voters are only able to influence the electoral outcome in around 17% of Louisiana’s districts, while white voters determine the outcome in 83% of them – a striking disparity when compared against Black and white demographic representation.
LDF subsequently sued Louisiana on behalf of Black voters and a district court agreed that the state’s map likely violated the VRA, ordering officials to draw a new map that includes an additional majority-minority district. However, in a summary order that gave no reasoning, the Supreme Court halted this corrective process, allowing the 2022 election to go forward under a map that the lower court found to be discriminatory. The fate of this case is now tied to the Milligan decision.
Sometimes officials also try to perpetuate false or misleading claims about the rationale behind their maps (often pointing to a partisan explanation) in order to justify the dilution of Black votes. In South Carolina, for example, LDF recently challenged the state’s new congressional map that packs the majority of Black voters into one district while dividing (or “cracking”) those who remain in such a scattered way that their electoral influence is severely diminished. State officials recently argued that the map is legal by claiming that it represents a partisan gerrymander rather than a racial gerrymander, but the fact remains: legislators disenfranchised Black voters to achieve this, tactically drawing the map to diminish Black political power and access to representatives who can serve their interests.
Justifying the silencing of Black voters with disingenuous claims of partisan advantage is deeply concerning. It also undermines a core tenet of American democracy: to ensure fair and equal representation for all. At its core, redistricting is a civic engagement process. However, as a result of the cynical and discriminatory manipulation of district lines, Black voters are increasingly unable to select candidates who represent them – continuing the legacy of a political process that is stacked against them.
Ultimately, the Supreme Court’s decision in Milligan will either allow Black voters to have a fair shot at electing candidates of their choice or permit state redistricting committees to pretend that race and the legacy of racial discrimination do not exist, undermining one of the key protections of the VRA and eliminating one of the major purposes of the decennial census. In all three states where LDF is currently challenging racially discriminatory maps, the use of race in redistricting is essential to dismantle and remedy the enduring roadblocks to Black self-determination that have remained ever-present since this country’s founding. At a time where voting rights are under attack at seemingly every level, it is imperative that the Supreme Court preserve the very foundation of our democracy.
Published: September 27, 2022
LDF’s Jared Evans, Policy Counsel, and Michael Pernick, Redistricting Counsel, 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.