Merrill v. Milligan

In November 2021, the ACLU, ACLU of Alabama, Legal Defense Fund, Hogan Lovells LLP, and Wiggins Childs LLC sued Alabama on behalf of four individual voters—Evan Milligan, Shalela Dowdy, Letetia Jackson, and Khadidah Stone—as well as Greater Birmingham Ministries and the NAACP of Alabama, challenging Alabama’s new congressional district boundaries as racially discriminatory under Section 2 of the Voting Rights Act and the Fourteenth Amendment to the U.S. Constitution. Despite having seven congressional districts and a Black voting-age population of over 27% in a state where voters still vote largely along racial lines, Alabama drew districts where Black voters have an opportunity to elect a representative of their choosing in only one district, or 14% of the state’s delegation. It accomplished this largely by “cracking,” or breaking up into several districts, a region of the State called the Black Belt—a largely rural area that encompasses 18 counties (including Montgomery) where most counties have majority Black populations—into four different districts.

In January 2022, a three-judge court unanimously granted a preliminary injunction to the Plaintiffs, finding that Plaintiffs were substantially likely to prove that Alabama violated the Voting Rights Act because the districts it drew denied Black Alabamians an equal opportunity “to elect representatives of their choice.” The court then provided Alabama a first opportunity to redraw the map in time for 2022 elections by creating a second district in which Black voters would have a fair opportunity to elect a candidate of their choosing.

Alabama sought and obtained a stay in the Supreme Court, which put the district court’s decision on hold and allowed the 2022 elections on to proceed on Alabama’s current maps.

The Court heard oral argument on October 4, 2022. Alabama advanced a series of radical arguments that would remake the Voting Rights Act. These included contending that plaintiffs must demonstrate that a state could draw an additional opportunity district for Black voters without considering race at all, that the Voting Rights Act required proof of intentional discrimination despite explicitly saying otherwise, and that Section 2 of the Voting Rights Act did not allow plaintiffs to challenge single-member districts (all congressional districts) at all. The Plaintiffs showed how the text and purpose of the Voting Rights Act contradicted Alabama’s arguments and that it permitted race-consciousness in assessing the validity of districts where voting was polarized by race and the electoral process and surrounding policies and practices were infused with racial discrimination.