This Report summarizes an opinion issued on February 24, 2022 (Part I); and cases granted review on February 7, 18, and 22, 2022 (Part II).

Opinion: Merrill v. Milligan, 21-1086; Merrill v. Caster, 21-1087

Merrill v. Milligan, 21-1086; Merrill v. Caster, 21-1087. In these consolidated cases, the Court will consider whether Alabama’s congressional redistricting plan—which includes only one majority-black district rather than two—runs afoul of Section 2 of the Voting Rights Act (VRA). Following the 2020 census, Alabama enacted a new districting plan for its seven congressional districts. Except for small differences, the plan reflected the congressional districts already in effect, which included (as it had since 1990) one majority-Black district. This plan was immediately challenged by three sets of plaintiffs. In Caster, plaintiffs alleged that the plan diluted the voting strength of Black Alabamians, and thus violated Section 2 of the VRA because it failed to draw a second, reasonably compact majority-Black district (despite the fact that Alabama is now 27% Black). In Milligan, plaintiffs claimed that the lack of a second majority-Black district was a violation of both the VRA and the Equal Protection Clause. (In the third action, which is not part of the consolidated cases before the Court, plaintiffs sought the same outcome, but only under an equal protection theory, Singleton v. Merrill, No. 2:21-cv-1291-AMN). A three-judge court was empaneled for the Singleton and Milligan suits pursuant to 28 U.S.C. §2284(a) because of the constitutional nature of their claims. Caster remained pending before a single judge (who was a member of the three-judge court), but was combined with the other two cases for purposes of a preliminary injunction hearing.

To succeed on a claim under Section 2 of the VRA relating (as here) to the drawing of a single-member district, three preconditions (known as the Gingles factors) must be met: (1) “a ‘minority group’ must be ‘sufficiently large and geographically compact to constitute a majority’ in some reasonably configured legislative district,” (2) “the minority group must be ‘politically cohesive,’” and (3) “a district’s white majority must ‘vote[] sufficiently as a bloc’ to usually ‘defeat the minority’s preferred candidate.’” Cooper v. Harris, 137 S. Ct. 1455, 1470 (2017) (quoting Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986)). To meet the first Gingles factor, plaintiffs introduced several maps created by experts that each established two majority-Black districts. But to create such maps, plaintiffs’ experts had to “prioritize race” over other factors. In other words, to construct two districts that included a sufficient number of Black voters, the mapmakers had to first consider two majority-Black districts as a “non-negotiable” target and only then factor in other traditional districting principles (such as maintaining communities of interest and traditional boundaries). Although Alabama argued that this outcome-determinative strategy was contrary to this Court’s case law, the three-judge court rejected that claim. Finding that the other two Gingles factors had been satisfied (and thus that the plan violated Section 2 of the VRA), the district court issued an injunction and ordered Alabama to create a new districting plan that included two majority-Black districts. The three-judge court did not reach plaintiffs’ equal protection claim.

Alabama sought a stay of the district court decisions, which the Supreme Court granted. In doing so, the Court noted probable jurisdiction in Milligan, and granted certiorari before judgment in Caster, on the question whether the district court correctly found a violation of Section 2 of the VRA. As it did below, Alabama argues that, because race is not a traditional districting principle, the district court erred in relying on maps that “prioritize[d] race” above other, traditional districting principles. Alabama claims that this subordination of traditional districting principles is irreconcilable with both the Constitution and the statutory text of the VRA, which require the application of race-neutral principles. Alabama also argues that allowing race to be used to some extent for purpose of the VRA (but not so much as to offend the Constitution) would create an unadministrable standard that would result in litigation under any circumstances.

Plaintiffs counter that this is a “textbook vote dilution case” where the district court found “that the new plan cracks Black voters among four congressional districts—precisely what Section 2 of the Voting Rights Act prohibits.” They insist that “they satisfied the first Gingles precondition by showing that it is possible to draw an additional majority-Black district in Alabama consistent with traditional districting principles. The mere consideration of race in advancing an illustrative plan in a racial vote dilution claim neither undermines that showing nor requires race to predominate over other factors. Alabama’s contrary argument seeks a wholesale revision of Section 2 precedent.”

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]