The Supreme Court’s Verdict of Allen v. Milligan: A Pivotal Moment in the Battle for Voting Rights and Representation

Marking a turning point in legal history, the ruling in the recent Supreme Court case Allen v. Milligan has been hailed as both “historic and significant” by Deuel Ross, the plaintiff’s attorney. [1] On June 8, 2023, this case, which revolved around an Alabama congressional redistricting map drawn by a Republican-dominated legislature, was brought out of the lower district court. In a state where one in four voters are Black, yet only one Black representative held a position out of the seven representatives, the fairness of the district lines was under question. [2] An analysis of the population distribution within the lines found that Black voters were dominant in one sole district, whereas the rest of the Black population was meticulously spread out in other districts. The areas with the most Black residents had more voting power than the single district, which prevented Alabama from having more than one Black representative. [3] In Allen v. Milligan, in a 5-4 ruling, both conservative and liberal judges upheld Section 2 of the Voting Rights Act of 1965 (VRA) in an attempt to alleviate the effects of racial discrimination. The Court found that, given Alabama’s racially polarizing voting, the map had to be redrawn. Although served with a glimpse of hope, the Court declined the request from Black Alabama voters and organizations for the lines to be redrawn with the intention of having proportional Black representation. [4] Thus, while the discriminatory effects were addressed, they were not alleviated. By using an outdated method to determine the districting of lines while viewing the Constitution as a “color-blind” document, the Court failed to fully address a critical and ongoing issue that the VRA has originally intended to solve.

Allen v. Milligan exemplified how Section 2 of the VRA safeguarded the rights of voters of color and paved the way for increased Black representation in Alabama. Signed into law by President Lyndon B. Johnson, the VRA prohibited discriminatory voting practices as a part of enforcing the Fifteenth Amendment. Section 2 of the VRA prohibits voting practices or procedures which “minimize or cancel out the voting strength of members of racial or language minority groups.” [5] Therefore, states are required to avert the prevention of voters of color from electing candidates of their choosing. The plaintiffs of Allen v. Milligan argued that Section 2 indicated that Alabama’s districting plans violated legal precedent. They alleged that the Alabama district map limited the number of districts where Black voters could choose their candidate of choice, a problem that aligns with the original intention for establishing Section 2. In this case, the Court not only successfully adhered to a precedent where voters of color could refer to Section 2 to secure their fair opportunity to participate in elections and eliminate minority voter dilution, but also affirmed Section 2’s constitutionality. Since the Reconstruction Era of the 1860s, Alabama has continuously presented a cascade of obstacles for Black voters and their rights. After the ruling of Allen v. Milligan, for the first time in more than 150 years, Alabama will likely have Black representation in more than one district. More cases regarding Black voter dilution in states will start to turn in favor of the plaintiff as opposed to the unlikelihood in previous cases. [6]

Despite this promising sign, there remain urgent questions about the relevance and implications of the logic and legal framework used by the Court in Allen v. Milligan. The Court made its decision based on a three-part test established in Thornburg v. Gingles regarding Section 2 of the VRA. In Thornburg v. Gingles, decided in 1986, the Court developed a test that would determine whether a redistricting plan violates the VRA by diluting the voting power of racial or ethnic minority groups. [7] The three-part test primarily focuses on the creation of majority-minority districts and racially polarized voting, which, as defined by the VRA, occurs when preferences of the political candidates are drastically different and the racial majority votes similarly enough to overpower the minority. [8] While the decision in Thornburg v. Gingles was a significant step in combating racial discrimination in voting, the method is outdated for the current geographic composition of the voting population.

In many states, including Alabama, racial and ethnic minorities no longer concentrate in a single geographic location. Consequently, by focusing on the geographic concentration of minorities, the Gingles test neglects other forms of vote dilution that occur outside of the district boundaries. Furthermore, the test was also developed in response to blatant and overt discriminatory practices, such as gerrymandering and at-large voting systems. While these practices still persist to some extent, modern voting rights issues also encompass more subtle forms of discrimination, such as the establishment of voter ID laws, the purging of voter rolls, and the creation of unequal access to polling stations. For example, according to the Brennan Center, up to 11% of eligible voters are not qualified for a voter ID required by states including Kansas, Tennessee, and Alabama. [9] It is evident that Alabama has taken a leading role in efforts to impede, overturn, and reverse federal civil rights laws that hinder attempts to disenfranchise Black voters.

The unexpected alignment of liberal and conservative justices in the majority opinion of Allen v. Milligan offers hope for proper representation to Alabamians and Black voters seeking equal participation in the electoral process. Yet, this hope is diminished by both the majority opinion’s and the dissenting justices’ appeal to a “color-blind” constitution. The majority opinion was joined by Justices Roberts, Sotomayor, Kagan, Kavanaugh, and Jackson, a clear mixture of liberal and conservative justices. The position of Chief Justice Roberts, one of the co-authors of the majority opinion, strongly strays from his 40-year attack on the VRA. Regarded as a “foe of the Voting Rights Act,” Roberts ruled in favor of striking down a provision of the VRA where changes to an area with voting discrimination would be pre-cleared in a previous ruling. [10] Yet, his decision in Allen v. Milligan, along with the rest of the majority, fervently clung to precedent. This unexpected change offers Alabamians and more Black voters hope for proper representation. The dissenting opinion, authored by Justice Thomas, argued that redrawing the Alabama map to favor a particular race was unconstitutional. His explanation fell in line with the “color-blind” view of the Constitution, which is based on the belief that races should not be valid ground for legal or political distinctions. [11] Justice Thomas and other dissenting justices stated that despite the fact that Black voters lacked equal representation in Congress, an attempt to proportionate the representation by creating Black-dominated districts does not have any constitutional basis behind it.

However, the notion of a “color-blind” Constitution appears not only in the dissenting opinions, but also less explicitly in the Court’s ruling. While the decision in Allen v. Milligan can be seen as a positive step towards the protection of voting rights, it also reveals an underlying flaw in viewing the Constitution as a “color-blind” document. Specifically, the decision clarifies that redistricting should not be done with the deliberate intent of giving Black people more representation. Instead, it should be based on fair geographic distribution and adequate representation according to the population census. While this approach might seem reasonable, it fails to address the long-standing issue of discrimination deeply rooted in Alabama's history. The majority asserts that drawing district lines to favor Black voters would be unconstitutional, just as it was deemed unconstitutional for Alabama to favor the White population. This stance, however, poses a problem reminiscent of the very issue the VRA was designed to combat. The flaw in the Court’s logic lies in the intention behind Section 2, which aims to prevent discriminatory voting practices. A color-blind perspective fails to acknowledge that racism and discrimination are often deeply ingrained in societal structures and can persist even without explicit intent. By focusing solely on the effects of district lines and not addressing the underlying intention behind their drawing, this approach may perpetuate racial disparities and prevent effective remedies to discrimination.

There have been many other cases similar to Allen v. Milligan which exemplify the flaw of a color-blind approach to viewing the Constitution, such as City of Mobile v. Bolden (1980). This case demonstrates that a color-blind view, which only considers the effects of discriminatory practices, is insufficient in preventing similar instances from recurring until the next election cycle. [12] The decision in the City of Mobile v. Bolden was made on the basis that black voters had the freedom to vote without any hindrances, and therefore a constitutional basis to purposefully elect a Black candidate did not exist. While adhering to precedent, the decision effectively allows discriminatory practices to persist until challenged after an election is over, perpetuating an unequal political landscape. White candidates would continue to dominate the Commission of the city as the voting strength of black individuals was diluted. Therefore, while the decision in Allen v. Milligan regarding the VRA's protection is significant, it highlights the need to reassess the color-blind view of the Constitution. To truly address the issue of discrimination in voting practices, a more nuanced and comprehensive approach is required—one that acknowledges historical context, intent, and the broader impact on marginalized communities. Only by understanding and addressing these deeper issues can society hope to achieve genuine progress toward equality and justice in the electoral process.

In the face of a bittersweet victory for civil rights, the ruling of Allen v. Milligan reminds America that the fight for equality is far from over. The three-part test from Thornburg v. Gingles is flawed in its emphasis on the geographic concentration of minorities rather than the problematic underlying intentions behind redistricting. Furthermore, the color-blind perspective of the Constitution in court rulings poses a hurdle for voters’ rights as there is a lack of an attempt to proportionate representation in congressional districts. Yet, although Gingles's test amplifies the flaws of viewing the Constitution as color-blind, the implications of Allen v. Milligan casts a positive light on expanding voting rights. The Court’s ruling thus provides a reassuring opportunity for states to check their ever-expanding power of redistricting and potentially limiting voting rights for minority communities. For example, two weeks after the ruling of Allen v. Milligan, a similar lawsuit in Louisiana was filed in order to redraw the district lines from the 2020 census. [13] While the rulings for those cases are yet to be decided, a turn towards the plaintiff now seems likely.

Edited by Kay Zou

[1] Sam Levine, “‘Historic and Significant’: Key Lawyer’s Verdict on Alabama Supreme Court Ruling,” Guardian, June 18, 2023, https://www.theguardian.com/us-news/2023/jun/18/alabama-supreme-court-allen-milligan#:~:tex t=In%20a%205%2D4%20ruling,that%20discriminates%20based%20on%20race.

[2] Nina Totenberg, “Supreme Court Unexpectedly Upholds Provision Prohibiting Racial Gerrymandering,” NPR, June 8, 2023, https://www.npr.org/2023/06/08/1181002182/supreme-court-voting-rights.

[3] Allen v. Milligan, 599 U.S. __ (2023).

[4] Mark Sherman, “Supreme Court Rules in Favor of Black Alabama Voters in Unexpected Defense of Voting Rights Act,” AP News, June 8, 2023, https://apnews.com/article/supreme-court-redistricting-race-voting-rights-alabama-af0d789ec749 8625d344c0a4327367fe.

[5] “Guidance Under Section 2 of the Voting Rights Act, 52 U.S.C. 10301, For Redistricting and Methods of Electing Government Bodies,” US Department of Justice, https://www.justice.gov/crt/case-document/file/1429826/download#:~:text=Section%202%20of %20the%20Voting%20Rights%20Act%20prohibits%2C%20among%20other,In%20Thornburg %20v.

[6] Damion Waymer and Robert L. Heath, “Black Voter Dilution, American Exceptionalism, and Racial Gerrymandering: The Paradox of the Positive in Political Public Relations,” Journal of Black Studies, Vol. 47, No. 7 (2016).

[7] Mary J. Kosterlitz, “The Legal Implications of Allen v. Milligan,” Catholic University Law Review, Vol. 36, Issue 2 (1987).

[8] Christopher S. Elmendorf, Kevin M. Quinn, and Marisa A. Abrajano, “Racially Polarized Voting,” The University of Chicago Law Review, https://ccis.ucsd.edu/_files/journals/8racially-polarized-voting.pdf.

[9] “Ensuring Every American Can Vote: The Issue of Voter ID and Vote Suppression,” Brennan Center for Justice, https://www.brennancenter.org/issues/ensure-every-american-can-vote/vote-suppression/voter-id.

[10] Ari Berman, “Inside John Roberts’ Decades-Long Crusade Against the Voting Rights Act,”

Politico, August 10, 2015, https://www.politico.com/magazine/story/2015/08/john-roberts-voting-rights-act-121222/.

[11] Monnica T. Williams, “Colorblind Ideology and Its Relation to Racism,” Psychology Today, December 27, 2011, https://www.psychologytoday.com/us/blog/culturally-speaking/201112/colorblind-ideology-is-fo rm-racism.

[12] City of Mobile v. Bolden, 446 U.S. 55 (1980).

[13] Caroline Sullivan, “Two Weeks Later, Allen v. Milligan Has Impacted These States,” Democracy Docket, June 22, 2023, https://www.democracydocket.com/analysis/two-weeks-later-allen-v-milligan-has-impacted-thes e-states/.