Supreme Court Agrees to Hear Voting Rights Act Challenge to Congressional Redistricting Map and Stays Lower Court Ruling: Implications for Congress
Legal Sidebari
Supreme Court Agrees to Hear Voting Rights
Act Challenge to Congressional Redistricting
Map and Stays Lower Court Ruling:
Implications for Congress
February 22, 2022
The Supreme Court has agreed to consider a significant case challenging an Alabama congressional
redistricting map under the Voting Rights Act (VRA). On February 7, in the consolidated case Merrill v.
Milligan, the Court stayed lower court preliminary injunctions that would have required, among other
things, Alabama to revise its congressional redistricting map to create a second majority-Black district. As
the Court is not expected to hear oral argument in this case until the October 2022 term, the 2022
congressional elections in Alabama will likely occur under the existing map. This Legal Sidebar discusses
Section 2 of the VRA in the context of redistricting; the lower court rulings, and the Supreme Court stay;
and concludes with an analysis of possible implications of this case for Congress.
Section 2 of the VRA
Congressional district boundaries in every state are required to comply with Section 2 of the VRA,
codified at 52 U.S.C. § 10301. Section 2 authorizes the federal government and private citizens to
challenge discriminatory voting practices or procedures, including the diminishing or weakening of
minority voting power, known as minority vote dilution. Section 2 prohibits any voting qualification or
practice applied or imposed by any state or political subdivision (e.g., a city or county) that results in the
denial or abridgement of the right to vote based on race, color, or membership in a language minority.
This prohibition includes congressional redistricting maps. Section 2 further provides that a violation is
established if, based on the totality of circumstances, electoral processes are not equally open to
participation by members of a racial or language minority group in that the group’s members have less
opportunity than other members of the electorate to elect representatives of their choice.
In the landmark 1986 decision Thornburg v. Gingles, the Supreme Court established a three-pronged test
for proving vote dilution under Section 2 of the VRA. Under this test, (1) the minority group must be able
to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-
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member district; (2) the minority group must be able to show that it is politically cohesive; and (3) the
minority group must be able to demonstrate that the majority group votes sufficiently as a bloc to defeat
the minority group’s preferred candidates. The Gingles Court further opined that a violation of Section 2
is established if, based on the “totality of the circumstances” and “as a result of the challenged practice or
structure, plaintiffs do not have an equal opportunity to participate in the political processes and to elect
candidates of their choice.” To assess the totality of the circumstances, the Court listed the following
factors, which originated in the legislative history accompanying the enactment of Section 2, as relevant:
1. the extent of any history of official discrimination in the state or political subdivision that
touched the right of the members of the minority group to register, to vote, or otherwise
to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivisions is racially
polarized;
3. the extent to which the state or political subdivision has used unusually large election
districts, majority vote requirements, anti-single shot provisions, or other voting practices
or procedures that may enhance the opportunity for discrimination against the minority
group;
4. if there is a candidate slating process, whether the members of the minority group have
been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision
bear the effects of discrimination in such areas as education, employment and health,
which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
[and]
7. the extent to which members of the minority group have been elected to public office in
the jurisdiction.
Under certain circumstances, as discussed by the Supreme Court in Bartlett v. Strickland, Section 2 may
require the creation of one or more “majority-minority” districts in a congressional redistricting map in
order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a
language minority. A majority-minority district is one in which a racial or language minority group
comprises a voting majority. The creation of such districts can avoid minority vote dilution by helping
ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an
equal opportunity to elect candidates of choice.
Lower Court Rulings
On January 24, 2022, in Milligan v. Merrill, a three-judge federal district court panel issued a preliminary
injunction in a consolidated case challenging the Alabama congressional redistricting map under the
Fourteenth Amendment and Section 2 of the VRA. The congressional redistricting map created by the
State of Alabama contains one majority-minority district out of a total of seven districts. The court
ordered the State of Alabama to revise its congressional redistricting map to establish an additional
majority-minority congressional district before the state could conduct the 2022 congressional elections.
Evaluating the plaintiffs’ request for a preliminary injunction, the district court concluded that the
challengers to the redistricting map were substantially likely to prevail in their argument that the map
impermissibly dilutes the votes of Black Alabamans in violation of Section 2 of the VRA. Applying the
first prong of the Gingles test, the court determined that Alabama Black voters “are sufficiently numerous
to constitute a voting-age majority in a second congressional district,” observing that Black voters
constitute approximately 27% of the population in the state, but a majority in only one of the seven
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congressional districts. In reaching this conclusion, the court rejected the state’s argument that in
ascertaining the Black voting age population, only those voters who identified in the 2020 census as
“single-race Black” should be counted. Moreover, the court determined that the minority population in the
challenged districts “is sufficiently compact to constitute a voting-age majority” in a second congressional
district.
Applying the second and third prongs of the Gingles test, the court in Milligan ascertained that “there is
no serious dispute” that minority voters in the challenged districts are politically cohesive and that the
majority votes sufficiently as a bloc to defeat the minority group’s preferred candidates. Next, the court
assessed the “totality of the circumstances,” considering the factors outlined in Gingles. Specifically, the
court observed that racially polarized voting occurs in the challenged districts and that, among other
things, “[n]o Black person has won statewide office in Alabama since 1996” and “[t]here are currently no
African-American statewide officials in Alabama.” Hence, the court concluded that Black voters in
Alabama “have less opportunity” than other voters “to elect candidates of their choice to Congress.” In
view of deciding this case on a statutory basis, under the VRA, the court declined to consider the
constitutional claims under the Fourteenth Amendment that were raised by the challengers.
Likewise, also on January 24, in Caster v. Merrill, a federal district court issued a preliminary injunction
in a case challenging the Alabama congressional redistricting map under Section 2 of the VRA. The court
in Caster adopted the description of the evidence, fact finding, legal analysis, and conclusions of law
from the preliminary injunction order issued by the three-judge court in Milligan v. Merrill, discussed
above.
On January 28, the State of Alabama filed an emergency application for an administrative stay pending
appeal to the Supreme Court. Under federal law, constitutional challenges to redistricting maps are heard
by three-judge federal district courts, and parties may directly appeal orders issued by such courts to the
Supreme Court. In contrast to petitions for certiorari, in cases where federal law provides for direct
appeals, the Supreme Court notes “probable jurisdiction” to indicate jurisdiction over the case.
Supreme Court Stay
In Merrill v. Milligan, the Supreme Court issued a brief order staying the lower courts’ preliminary
injunctions. By issuing a stay, the Court, in effect, reinstated Alabama’s congressional redistricting map
that contains one majority-minority district. The Court also agreed to consider the cases on the merits, and
on February 22, consolidated Milligan and Caster, allotting one hour for oral argument.
In a concurrence, Justice Kavanaugh, joined by Justice Alito, responded to the Justice Kagan’s dissent,
discussed below, and emphasized that the stay order neither changes the status quo of voting rights law
nor signals that such a change is forthcoming. The concurrence observed that the underlying Supreme
Court precedent relevant to this case—Gingles and its progeny—which involves the intersection between
the VRA and the Equal Protection Clause of the Fourteenth Amendment, “is notoriously unclear and
confusing.”
The stay order was necessary, the concurrence further reasoned, to comply with election law precedent
establishing that federal district courts generally should avoid enjoining state election laws close to an
election, citing Purcell v. Gonzalez. Should a lower court violate that principle—known as the Purcell
principle—a federal appellate court should stay such an injunction, the concurrence announced.
Moreover, the concurrence observed that federal court changes to election laws shortly before an election
“can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and
voters, among others.” Congressional primaries in Alabama are scheduled to begin, by absentee voting,
on March 30, 2022. In addition, according to the concurrence, the stay will permit the Court to consider
the merits of this case “in an orderly fashion—after full briefing, oral argument, and our usual extensive
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internal deliberations,” thereby ensuring that the Court does not have to decide the merits on an
emergency basis.
In a dissent, Chief Justice Roberts argued that the district court issued a lengthy opinion that properly
applied existing law “with no apparent errors for [the Court’s] correction.” According to the Chief Justice,
the appropriate standard for ascertaining vote dilution claims under Section 2 of the VRA is the first
prong of Gingles, which the district court properly applied and then determined that the challengers had
met after “review[ing] the submissions of the plaintiffs’ experts.” Similar to the concurrence, the Chief
Justice criticized Gingles and its progeny for prompting “considerable disagreement and uncertainty
regarding the nature and contours of a vote dilution claim.” The Chief Justice, “[i]n order to resolve the
wide range of uncertainties arising under Gingles,” noted probable jurisdiction in Milligan and would
have granted certiorari before judgement in Caster. The Chief Justice would not have granted a stay
because the lower court properly applied Supreme Court precedent in this case. In contrast to the
concurrence, the Chief Justice’s dissent did not address whether the lower court had violated the Purcell
principle.
Joined by Justices Breyer and Sotomayor, Justice Kagan also dissented, maintaining that the district court
in this case properly applied Supreme Court precedent regarding the VRA and criticizing the Court for
issuing a stay after a “scanty review.” Observing that the lower court amassed a significant factual record
created after hearing over seven days of testimony and assessing over 1,000 pages of briefing, Justice
Kagan argued that the lower court did not err under current law. While conceding that there may be a
reason to revise the Court’s VRA precedent in the future because of the advent of modern redistricting
software technology, the dissent warned that revising Court precedent can only occur after the parties
submit full briefings and arguments. In particular, the dissent characterized the standard proffered by the
State of Alabama as adding “a new requirement” to the VRA. This requirement, the dissent argued, would
require challengers to show that the use of modern redistricting software would result in the creation of
two majority-minority districts, instead of one, even though the technology is designed not to take race
into account. As the first prong of the Gingles test necessarily requires considering race to determine
whether an additional majority-minority district needs to be drawn to comport with the VRA, the dissent
argued that the standard proffered by the state is premised on a new, unfounded interpretation of Gingles.
The dissent reasoned that “[a]ccepting Alabama’s contentions would rewrite decades of [the] Court’s
precedent about Section 2 of the VRA.” Finally, the dissent disagreed that the Purcell principle should
apply in this case because the general election is scheduled to occur in approximately nine months; the
primary in approximately four months; and the absentee primary voting, which the state has the ability to
modify, in more than two months after the district court issued the preliminary injunctions. According to
the dissent, the Supreme Court has denied stays in redistricting cases within similar time frames.
Supreme Court oral argument in this case is expected to occur during the October 2022 term, with a
decision issued by summer 2023.
Implications for Congress
Looking ahead, depending on how the Supreme Court rules on the merits in Merrill v. Milligan, the
decision may affect standards that reviewing courts apply in determining when the creation of a majority-
minority district in a congressional redistricting map is required under Section 2 of the VRA. For
example, if a majority of the Justices agree that current Court precedent is unclear and uncertain—as
espoused by the concurrence and the Chief Justice’s dissent—the Court may decide to clarify the law. In
addition, the current, widespread use of modern redistricting software might also prompt the Court to
revise its redistricting precedent, as Gingles was decided long before the advent of such technology. In
response to the Court’s decision, and in accordance with the Constitution, Congress might choose to
amend Section 2 of the VRA to either adjust, endorse, or reject the standard adopted by the Court in
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Merrill. By way of historical example, following the Court’s 1980 decision in City of Mobile v. Bolden,
Congress amended Section 2 in 1982 to overturn the effects of that ruling.
In the nearer term, the Supreme Court’s grant of a stay in Merrill could signal that additional challenges
to congressional redistricting maps close to the 2022 congressional midterm elections may not be
successful. That is, if courts agree with Justice Kavanaugh’s concurrence in this case that the stay was
necessary to comply with the Purcell principle, federal courts may deny future challenges to redistricting
maps as the congressional primary and general elections draw near.
Merrill is the second VRA case that the Court has agreed to consider recently. In July 2021, the Court
decided Brnovich v. Democratic National Committee (DNC), determining the applicability of Section 2 to
state voting rules, known as a vote denial case. Some legal commentators have predicted that Brnovich
will result in less successful claims in such Section 2 cases. In response to the decision, legislation has
been introduced in Congress that would amend Section 2, including H.R. 4 (117th Congress), the John R.
Lewis Voting Rights Advancement Act of 2021, which passed the House on August 24, 2021.
Author Information
L. Paige Whitaker
Legislative Attorney
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