During the litigious 2022 midterm election cycle, Section 2 of the Voters Rights Act (VRA) was front and center in two cases from Alabama. The history of this case spans 30 years and is consequential, as a ruling in favor of the State of Alabama will potentially weaken the ability of courts to infringe on the power of state legislatures to set election procedures, including redistricting. The U.S. Supreme Court heard oral arguments on redistricting and compliance with the Voters Rights Act in Merrill v. Milligan, which consolidated Merrill v. Caster on Oct 4, 2022. The specific question presented to the Court is “Does Alabama’s 2021 redistricting plan for its seven U.S. House of Representatives seats violate Section 2 of the Voting Rights Act?” 

Pursuant to Section 4(b) of the VRA, states with a record of less than 50% of eligible voters enrolled and laws which mandated a prerequisite test prior to voting (usually literacy) needed “pre-clearance” to pass any new election laws and were subject to the U.S. Department of Justice oversight on election procedures. Alabama was one of those states. 

This law was crucial when passed in 1965 to further the intent to uphold the 15th Amendment of the U.S. Constitution. However, over the intervening years, as states came into compliance with the VRA, the formula dictated by the law was no longer applicable. In 2013, the United States Supreme Court in Shelby v. Holder 570 U.S. 529 (2013) held the 40-year-old preclearance formula was outdated and unconstitutional. Because the Court found the formula under 4(b) of the VRA to be unconstitutional, Section 5 of the VRA was rendered moot. Section 5 of the Act required Alabama, as a covered state, to seek preclearance for any changes to voting and election procedures from the U.S. Attorney General or a declaratory judgment from the U.S. District Court. Since preclearance is now moot, racial issues as they pertain to election laws or procedures can only be challenged under the VRA by proving a Section 2 violation. In other words, a plaintiff must prove that the procedure in question discriminates on the basis of race, [or] color.

Since 1992, the Democrat-drawn congressional districts in Alabama have remained largely untouched. In the state of Alabama, the legislature possesses the authority to draw the congressional and legislative districts, with veto power held by the governor. In 2021, after Governor Kay Ivey signed the redistricting plan submitted by the legislature, Milligan and Caster sued, claiming that the plan dilutes the power of black voters in violation of Section 2 of the VRA, that the plan creates unconstitutional racial gerrymandering, and that the legislature intentionally discriminated based on race when making the plan. Secretary of State John Merrill argued that race cannot, as Plaintiffs allege, be the sole criteria under Section 2 of the VRA.  Merrill showed evidence that over one million computer simulations had been computed and not one created two minority districts. Further, the plan enacted in Alabama did not deviate significantly from the 1992 drawn districts. Plaintiffs, represented by the well-known liberal election law firm led by Mark Elias, conceded that the only way to draw a second minority district is to make race non-negotiable, or the only reason for the district, followed by contiguity and compactness. Plaintiff’s expert ran two million simulations and was unable to come up with a neutral, natural second minority district. Thus, plaintiffs proposed a plan eliminating a Mobile (city) anchored district that has existed for two decades by splitting the Gulfvarea along racial lines spanning 200 miles, which was the only way to connect black voters. Section 2 of the VRA does not permit or require race to be a sole priority in drawing congressional lines, so argues Secretary Merrill.  

It is worth noting that the city of Mobile, Alabama has not been split into more than one congressional district in the state’s history. The core of existing districts in Alabama keeps communities of interest together. Decades ago, a federal court rejected a congressional map that would have split the Mobile area because it would have “distort[ed] … Districts 1 and 2” and instead selected a plan that “better preserves the communities of interests in those two districts.” Wesch v. Hunt, 785 F. Supp. 1491, 1497 (S.D. Ala. 1992). By combining parts of Mobile with very rural areas of Alabama, the plaintiff’s proposed plan splits communities of interest, something frowned upon by federal courts.

Congress did speak in 1965 to an ill that plagued many states and communities in this country.  To now twist the logic of the VRA to mean that race should be the only relevant factor in creating and manipulating districts belies the very goal of the Act.