The constitutional analysis in Allen v. Milligan

One argument raised by Alabama in its brief in Allen v. Milligan was that Section 2 is unconstitutional–at least, unconstitutional if Gingles were interpreted the way the trial court interpreted it. That prompted the bulk of concerned reaction in a lot of media commentary ahead of oral argument, but at oral argument there seemed little appetite for it.

That said, it was still an argument that the Court needed to address. This is the totality of Chief Justice Roberts’s analysis of that issue.

We also reject Alabama’s argument that §2 as applied to redistricting is unconstitutional under the Fifteenth Amendment. According to Alabama, that Amendment permits Congress to legislate against only purposeful discrimination by States. See Brief for Alabama 73. But we held over 40 years ago “that, even if §1 of the [Fifteenth] Amendment prohibits only purposeful discrimination, the prior decisions of this Court foreclose any argument that Congress may not, pursuant to §2 [of the Fifteenth Amendment] outlaw voting practices that are discriminatory in effect.” City of Rome v. United States, 446 U. S. 156, 173 (1980). The VRA’s “ban on electoral changes that are discriminatory in effect,” we emphasized, “is an appropriate method of promoting the purposes of the Fifteenth Amendment.” Id., at 177. As City of Rome recognized, we had reached the very same conclusion in South Carolina v. Katzenbach, a decision issued right after the VRA was first enacted. 383 U. S., at 308–309, 329–337; see also Brnovich, 594 U. S., at _ (slip op., at 3).

Alabama further argues that, even if the Fifteenth Amendment authorizes the effects test of §2, that Amendment does not authorize race-based redistricting as a remedy for §2 violations. But for the last four decades, this Court and the lower federal courts have repeatedly applied the effects test of §2 as interpreted in Gingles and, under certain circumstances, have authorized race-based redistricting as a remedy for state districting maps that violate §2. See, e.g., supra, at 11; cf. Mississippi Republican Executive Committee v. Brooks, 469 U. S. 1002 (1984). In light of that precedent, including City of Rome, we are not persuaded by Alabama’s arguments that §2 as interpreted in Gingles exceeds the remedial authority of Congress.

The concern that §2 may impermissibly elevate race in the allocation of political power within the States is, of
course, not new. See, e.g., Shaw, 509 U. S., at 657 (“Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters.”). Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.

Justice Thomas notes in dissent, “The majority deflects this conclusion by appealing to two of our older Voting Rights Act cases, City of Rome v. United States, 446 U. S. 156 (1980), and South Carolina v. Katzenbach, 383 U. S. 301, that did not address §2 at all and, indeed, predate Congress’ adoption of the results test.” (Indeed, Alabama’s appellate merits brief does not even mention City of Rome.) More on this in a moment.

At face value, this does a few things.

First, the opinion has a near-total absence (and in this part, a total absence) of the Fourteenth Amendment in the opinion. Very early, the opinion mentions White v. Regester and how Section 2 “borrowed” language from this Fourteenth Amendment opinion. It then mentions that Milligan brought an Equal Protection Clause claim. And it notes that Bush v. Vera found a racial gerrymander under the Fourteenth Amendment.

That’s about it. Justice Kavanaugh opts to mention the Fourteenth Amendment in his brief concurring opinion on the constitutional claim. But Chief Justice Roberts’s opinion doesn’t.

It’s telling for a few reasons. At oral argument, for instance, Justice Jackson had a lengthy soliloquy (that attracted quite a bit of media attention) on the scope of the Fourteenth Amendment and Congress’s actions around that time. Not just that history, but the Fourteenth Amendment itself never makes the opinion.

For another, to the extent later cases in the term (say, cases on racial preferences in university admissions) rely on the Fourteenth Amendment, this opinion doesn’t have much to say about it. Instead, the case is treated as squarely a Fifteenth Amendment issue.

Second, the opinion appears to embrace the notion that Congress holds the power to regulate elections under the Fifteenth Amendment that extend only to discriminatory effect, not discriminatory intent. And there’s no qualifications or caveats. That’s a big holding if taken at face value. (More on that in the comparison to Shelby County in a moment.)

For instance, City of Rome was a case under Sections 4 and 5 of the Voting Rights Act, not Section 2. Note that the quotation in City of Rome refers to “electoral changes” (emphasis added). So it would appear that the Court here is interpreting City of Rome more broadly–consistent with City of Rome‘s assumptions and later assumptions of the Court, I think, but also, perhaps, new ground to make the claim explicitly.

As Justice Thomas notes, the Court is relying on pre-1982 amendment cases to say that the matter is settled on the 1982 enactment. And there is no discussion of stare decisis, simply that precedent applies here.

Third, the Court does not engage in a standard of review for congruence & proportionality (from City of Boerne and its progeny) but sticks with, I think, rational basis. That is, the Court is very deferential to Congress’s exercise of power under the Fifteenth Amendment.

I wrote about this back in 2014 interpreting Shelby County. Like Allen, Shelby County was a bit short on the standard for constitutional analysis–even though the entire opinion was decided to determining that the coverage formula Section 4 of the Voting Rights Act exceeded Congress’s power when it came to the remedy in Section 5. The Court in Shelby County punted on the proper legal standard. It acknowledged some more recent cases had adopted a “congruence and proportionality” review–a stricter level of judicial scrutiny–under the Fourteenth Amendment, but it had not been extended to the Fifteenth Amendment, and some wondered whether the Reconstruction Amendments could have different standards of review of exercises of congressional power.

But the Court didn’t resolve that tension. I noted at the time that it may partially have turned on the fact that some on the Court, including Justice Scalia, had come to reject congruence and proportionality; others, including Justice Alito, had not yet formally weighed in on the that standard.

So the Court here again, like Shelby County, appears to embrace rational basis review under the Fifteenth Amendment. And if rational basis is hard to fail (Shelby County did, of course, with a recently-enacted statute), deference to Congress naturally follows.

Justice Thomas’s dissenting opinion (and here, it is joined by Justices Gorsuch and Barrett, but not Alito) embraces in a footnote that the “same principles govern” in the Fifteenth Amendment. That’s certainly not what Shelby County required (and it’s not clear that Justice Alito embraces that, either).

It’s a reason, too, I think, that some have focused on Justice Kavanaugh’s statement about the temporal aspect of reviewing the remedy:

As the Court explains, the constitutional argument presented by Alabama is not persuasive in light of the Court’s precedents. See ante, at 33–34; see also City of Rome v. United States, 446 U. S. 156, 177–178 (1980). JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

Shelby County turned on a notion that Congress may have had power to do something, but some time later that power ran out and became an irrational exercise. Likewise, Justice Kavanaugh hints that he would consider the notion that, at some point, Congress’s power ran out on Section 2, too.

To wrap up where I started, it is hard to know how much to take from the constitutional analysis here. At face value, it does a few things. But the constitutional scrutiny angle in Shelby County appeared to do a few things, too, and it never really got off the ground elsewhere. If new, tailored constitutional claims arise, the precedential value of Allen for them may be limited. But there are some interesting facets of the constitutional side of Allen that merit further reflection, especially if in future years Congress considers legislation enacted pursuant to the Fifteenth Amendment.

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