A Few Preliminary Thoughts on Allen v. Milligan

I agree with Nick that today’s decision in Allen v. Milligan was stunning. I don’t want to give the Supreme Court too much credit, for reasons that Melissa Murray identify here, but I had prepared myself for the worst (and this is certainly not that!!). Below are a few preliminary (very preliminary!) thoughts on the decision. I don’t usually do this, especially so soon after a decision comes out, preferring to leave the real time analysis in the capable hands of others. But since I am in my feelings:

1) Not only does the Supreme Court uphold Section 2, but Roberts (who is, by no means, a VRA supporter – Shelby County anyone???) relied on forty years of precedent without gutting the decisions or distorting them. One of my never ending gripes with the Parents Involved affirmative action case was how Chief Justice Roberts subverted the meaning of Brown v. Board of Education into a requirement of colorblindness arguably not within the contemplation of the Warren Court in limiting the scope of affirmative action.

Roberts could have went down this road with the VRA, especially given that Alabama was arguing that, in the last forty years, the Gingles framework had evolved into a proportionality standard that contradicted the express prohibition in Section 2. Instead, the Court went out of its way to distinguish cases in which courts were seeking proportional representation by elevating race and sacrificing traditional redistricting critieria from the facts of Milligan.

2) In a number of Section 2 cases, courts opposed to the Voting Rights Act have tended to parse the history in order to defeat the claim, i.e., the allegations of discrimination in voting were too long ago to support Section 2 liability. For example, some of the Fifth Circuit’s decisions regarding Texas’ voter identification law dismissed much of the history of discrimination for this very reason. Roberts did not do that here, simply deferring to the district court on the history of discrimination. That was surprising to me as well given how common it has become for the history to be dismissed as too distant from the violation.

3) The Court found that adopting Alabama’s proposed race neutral benchmark would require the plaintiffs to essentially prove the existence of discriminatory intent (in the context of a statute that does not require intent) because the plaintiffs would have to show that the state’s plan has the same amount of majority–minority districts as the race neutral benchmark for no other reason than race. The Court says that this is inconsistent with Section 2. Instead, deviation from the maps produced by the plaintiffs show that race could have been a factor, and the other Gingles factors seek to flesh out how likely it is that race was a factor. This is consistent with the congressional intent behind the statute in 1982. Roberts resisting an opportunity to elevate intent over effect was also something that was incredibly surprising to me.

4) The Court’s finding that adherence to a previously used plan does not insulate a state from Section 2 liability was also notably. This is oddly consistent with Abbott v. Perez (a decision I detest with every fiber of my being) where the Court held that discriminatory intent does not carry over from one legislature to the next. But in a twist of fate, it should also be true that a plan that is legitimate and constitutional for one cycle is not necessarily legitimate for another, especially in light of demographic changes. Just like bad intent doesn’t carry, good intent doesn’t either.

5) Despite my positive emotions about the decision, it is also important to note that Roberts also uses the occasion to reaffirm Supreme Court decisions that are very conservative on race. Milligan reaffirms the Court’s prior limits on the consideration of race in drawing district lines. States are still prohibited from adopting maps in which racial considerations predominate without a compelling reason. It is just that, in the Alabama case, it is clear that this line between considering race and being motivated by race had not been crossed. But Shaw v. Reno is still the law of the land.

6) I would remiss if I did not mention that the Court explicitly rejected an argument that Section 2 is unconstitutional as applied to single member redistricting. Does that mean that Section 2 is constitutional and won’t go the way of preclearance? Maybe not, but I think Section 2 is okay for now. I do not think this a parallel situation to NAMUDNO v. Holder and Shelby County v. Holder in which the Court invited Congress to fix a constitutionally problematic statute before invalidating it. Here, the Court is clear that, in 1982, Congress was aware that Section 2 would apply to redistricting by drawing on/amending the statute in light of White v. Regester and City of Mobile v. Bolden (both of which were cases about redistricting). But this is a 5-4 decision and I suppose the fate of Section 2, like many things, will turn on who the next president will be after the 2024 or (dare I say it) 2028 elections. In addition, as Spencer notes (looks like he was posting about this point at the same time I was updating my post to make this point – great minds and all that), Justice Kavanaugh, in his concurrence, makes the point that Congress’s use of race based redistricting as a remedy has to be time limited, setting the scene for what will surely be another showdown over the constitutionality of Section 2. Only time will tell.

I have other thoughts and will try to continue to update this post. But I have to go do dean stuff so I am not sure when that will be. Big day for VRA folks, but we still have to be cautious in our optimism. The independent state legislature decision is still out there and this is not the last challenge that the VRA will face, I’m sure.

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