The Milligan Decision: What Does It Mean for Alabama Redistricting?

On June 8th, the Supreme Court handed down a 5-4 decision in Allen v. Milligan, finding that Alabama’s current congressional map likely violates the Voting Rights Act of 1965. The decision paves the way for a second majority-black district in the state. More importantly, the Court held that the VRA does apply to redistricting and forbids states from drawing maps that have a discriminatory effect – such as the dilution of black voting power. The 14th and 15th amendments, by contrast, only ban laws enacted with racially discriminatory intent.

To understand how the majority came to this conclusion, let’s take a brief look at the history of the VRA and the Court’s decision in Thornburg v. Gingles (1986). When the VRA was originally passed, its Section 2 banned the implementation of any “voting qualification or procedure” that “denied or abridged” the right to vote based on, among other factors, race. In City of Mobile v. Bolden (1980), the Court interpreted that text to mean that discriminatory intent, not just discriminatory effect, had to be present for a “facially-neutral” redistricting map to violate the VRA. 

Two years later, Congress added a “results test” to Section 2 that neutralized Bolden. The amendments meant that maps that had discriminatory effect could be held to violate the VRA regardless of the intent with which they were drawn. This version of Section 2 informed the Court’s creation of the Gingles test, which defined the prerequisites for a vote dilution claim to succeed:

  1. The minority group must be geographically compact enough that it could elect a candidate of its choice.
  2. The minority group must be politically cohesive enough that it likely would elect a candidate of its choice.
  3. The minority group’s preferred candidates must persistently lose due to discriminatory bloc voting by the majority group.

If these three steps are satisfied in light of the “totality of the circumstances,” a framework focused on factors referenced by the Senate Judiciary Committee when it amended Section 2, the vote dilution claim should succeed. The compactness baseline established in Gingles was adapted by the Court’s 2009 decision in Bartlett v. Strickland.

There, a plurality of justices found that the first element of the Gingles test could only be satisfied if a district could be drawn in which the minority group in question comprised a majority (50%) of the citizen voting-age population. It’s important to remember that Justice Kennedy’s opinion in Strickland was only supported by a plurality of the Court. As a result, some lower courts have continued to find plurality opportunity districts (<50%) valid.

The same fundamentals established in Gingles guided the Court’s interpretation of Section 2 in Milligan, with added emphasis on districts needing to be “reasonably configured.” To fit that bill, a district must respect traditional redistricting criteria (e.g., compactness and communities of interest) and cannot be drawn with race as a predominant factor. In summary, a map can be said to have a discriminatory effect under Milligan if it does not include a district for a minority group satisfying the following criteria:

  1. The minority group must be politically cohesive enough that it likely would elect a candidate of its choice.
  2. The minority group’s preferred candidates must persistently lose due to discriminatory bloc voting by the majority group.
  3. The minority group must form a majority in a “reasonably configured” district.

If you don’t want to read the full opinion, but wish to learn more, check out this excellent summary of all the opinions in the decision.

Alabama – Then and Now

Because the Court’s ruling in Milligan requires Alabama to draw a second majority-minority district, it’s worthwhile to look back to the 1992 cycle – when the state drew its first majority-black seat – to compare and contrast the effects VRA-driven redistricting choices had on the state’s congressional delegation. 

Throughout the 1980s, Alabama’s congressional delegation was dominated by conservative white Democrats who depended significantly on black support to maintain their 5-2 majority. As the above map shows, the Black Belt was cracked between multiple districts prior to 1992. Most of the counties in the region were placed in the Tuscaloosa-based 7th district, but heavily white portions of Shelby and Jefferson counties made the seat just 30% black. Minority voting power was similarly limited in the 1st, 2nd, and 3rd districts.

The Department of Justice pushed for change after the 1990 census, mandating the creation of a new black-majority district. This new version of the 7th was based on the pre-existing district but traded white precincts in Jefferson and Shelby counties for majority-black portions of Montgomery and Jefferson counties. The changes transformed the 7th from 30% to 67% black, and the seat’s design has essentially stayed the same since then.

Like many southern white incumbents in 1992, Rep. Claude Harris (D) sensed vulnerability in the Democratic primary following redistricting and chose to retire. While the current 7th is only 57% black, that number had to be higher in 1992 to overcome the historical strength of the conservative white vote in southern Democratic primaries.

The overpacking of black voters into the 7th district had multiple downstream effects in 1992. Most notably, Rep. Ben Erdreich (D) lost re-election in the reconfigured 6th district. His seat, which used to take in most of downtown Birmingham, was extended out of Jefferson County in redistricting. This transformed the district from 62% to 89% white. 

The newly-added rural counties leaned Democratic, but were neutralized by the overwhelming Republican lean of Shelby County – home to Birmingham’s highly-educated exurbs. Erdreich ended up outperforming the top of the ticket considerably, but still came up short in 1992. No Democrat running for the district has won more than 40 percent of the vote since then. 

Redistricting also partitioned Montgomery County, making the 2nd district much harder for Democrats to win. When the seat opened up in 1992, Republicans barely held it. Terry Everett, a journalist and former sharecropper, beat State Treasurer George Wallace Jr., the son of the infamous governor. Wallace held up well in the rural Wiregrass region, but lost after getting crushed in suburban Montgomery County. Had fewer black voters been drawn into the 7th, Wallace likely would have won. 

Today, whites in both suburban and rural Alabama are staunchly Republican. There are no white Democratic representatives that the Court’s decision in Milligan could displace. The creation of a second majority-black district in the state will impact Republican incumbents instead.

However, if the Alabama legislature redraws its map to comply with Milligan, it will probably look a lot like the plaintiff’s remedial map. There are only so many ways to draw two majority-black districts that satisfy the Court’s interpretation of the VRA. Under this proposal, the 7th district retains its Birmingham-Black Belt configuration, while the 2nd district absorbs all of Montgomery County along with the cities of Mobile and Dothan to become a Democratic seat.

These changes would force the 1st district south and the 3rd district north. Republican incumbents Jerry Carl and Barry Moore will both be endangered by the impending redraw. Based purely on fundamentals, Carl would be favored to win the above 1st district thanks to the Republican base in Mobile and Baldwin counties. But Moore is more visibly aligned with President Trump’s wing of the party, a factor that proved decisive in multiple double-bunking primaries last cycle.

What does the decision mean for redistricting elsewhere?

The Court’s ruling in Milligan may only have a direct effect on Alabama, but the Section 2 precedent it sets is incredibly relevant to future redistricting litigation involving alleged racial gerrymanders in other states. In Ardoin v. Robinson, a case involving the acceptability of Louisiana’s congressional map, the Court recently withdrew the stay on proceedings it had imposed prior to deciding Milligan. This allowed the state to appeal a decision by the Middle District of Louisiana that it must redraw its maps to create a second majority-black district to the Fifth Circuit, which will consider whether or not to remand the case back to the MDLA.

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