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, while also accepting the case to have briefing and argument on the merits..

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.

In a historic win for voting rights, the Supreme Court ruled in favor of Black voters who challenged Alabama’s 2021-enacted congressional map for violating the Voting Rights Act of 1965 for diluting Black political power. The Court reaffirmed the legal test for evaluating claims under the VRA first adopted in the 1980s, and declined Alabama’s invitation to depart from longstanding precedent. Just as importantly, it affirmed the district court’s order that Alabama redraw its congressional map to ensure that Black voters have a meaningful opportunity to elect candidates of their choice in two of Alabama’s seven congressional districts in time for the 2024 elections.

Back before the three-judge district court, the court provided the Alabama legislature the opportunity to enact its own new map that complied with court orders before imposing its own map for 2024 elections. But Alabama chose defiance over compliance. The Legislature enacted a new plan, but it was one that Alabama admitted did not allow Black voters to regularly elect candidates of choice in a second district. We challenged the plan as insufficient to fix the violation or comply with the VRA. The district court agreed and stopped the legislature’s 2023 plan from taking effect, and instead adopted a map drawn by independent third parties that created a second opportunity district for Black voters. The court was unsparing in its criticism of Alabama, explaining that it had “now said twice that this Voting Rights Act case is not close” and it was “deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires” and “disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy.” Indeed, the court was “not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.” Among other things, the Court focused “on how clearly it illustrates the lack of political will to respond to the needs of Black voters in Alabama in the way that we ordered.” Alabama sought another stay from the Supreme Court but this time the Court denied it with no noted dissents, meaning the court’s map will stay in place for 2024 elections.

Despite these orders, Alabama insists on taking the case to trial, which is set for February 2025 and which will determine the fate of Alabama’s congressional map for the rest of the decade.