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Cracking and packing Black voters: Alabama v. Milligan

Fred Smith Jr. |
Fred Smith Jr.

In three consolidated lawsuits, Alabama voters are currently challenging the state’s most recently enacted Congressional map, arguing that it violates Section 2 of the Voting Rights Act. This provision prohibits state and local governments from implementing voting procedures or practices that result in the denial or curtailment of any citizen's right to vote based on race or color. To obtain an injunction to prevent the use of the map, the plaintiffs must demonstrate that they are likely to succeed on the merits, a standard typically applied to injunction requests. In the recent Supreme Court case, Alabama v. Milligan, the Court, in a 5-4 decision, determined that the plaintiffs’ Section 2 claims were likely to have merit, justifying the lower court’s order to block the implementation of the map.

Section 2 claims frequently involve allegations of vote dilution through tactics known as “cracking” and “packing.” Cracking occurs when a group is divided among multiple districts to diminish their collective voice, while packing involves concentrating members of a group into one district, thereby minimizing their influence in other districts. Both practices undermine the democratic power of racial groups, preventing their political representation from aligning with their numerical strength. In the case of Alabama v. Milligan, the plaintiffs contend that Black voters in the Black Belt region of the state were cracked, meaning they were unnecessarily divided among multiple districts. Additionally, the plaintiffs argue that by splitting these voters, Alabama unlawfully avoided creating a second district where Black voters would constitute a majority.

In redistricting cases, the leading precedent interpreting Section 2 is Thornburg v. Gingles (1986). In that case, the Court explained that a Section 2 claim arises when an electoral law, practice, or structure, in conjunction with social and historical conditions, results in inequality in the opportunities for Black and White voters to elect their preferred representatives. The Court established a three-factor test, known as the “Gingles factors,” to assess the viability of claims of vote dilution. First, courts evaluate whether the minority group is sufficiently large and geographically concentrated to form a majority in a single-member district. Second, courts consider the political unity of the minority group, examining whether its members vote similarly and constitute a cohesive political bloc. Third, courts analyze whether the majority voting bloc consistently defeats the preferred candidates of the minority group. This factor examines past election outcomes to determine if the majority consistently thwarts the electoral preferences of the minority despite the minority's potential to elect candidates in a fair districting scenario.

Applying the first Gingles factor, the Court upheld the lower court's determination that Black voters could constitute a majority in a reasonably designed second district. The plaintiffs presented eleven maps with districts that had equal populations, were contiguous, and respected existing political divisions. Two of these maps contained a Black majority in a second district. Furthermore, the plaintiffs’ maps were reasonably designed as they united the Black Belt region, which encompasses a significant number of voters with a shared ancestry to enslaved individuals brought there during the antebellum period.

Regarding the second and third Gingles preconditions, the Court affirmed the district court's finding that Black voters exhibited political unity, while the White majority consistently voted against the preferred candidates of Black voters. The Court acknowledged the lower court’s conclusion that, on average, Black voters supported their preferred candidates with 92.3% of the vote, whereas White voters only supported Black-preferred candidates with 15.4% of the vote. Additionally, the Court recognized Alabama's well-documented history of racial and voting discrimination.

The Court’s opinion came as a surprise to many observers for two primary reasons. Firstly, a decade ago, the Supreme Court invalidated Section 5 of the Voting Rights Act in Shelby County v. Holder (2013). Section 5 aimed to prevent states with a history of discrimination from undermining minority voting power. Chief Justice Roberts, writing for the Court, deemed this state-specific remedy unconstitutional, asserting that it was no longer warranted given current conditions. This prior decision, coupled with Chief Justice Roberts' expressed views before joining the Court, led legal commentators to anticipate potential weakening or invalidation of Section 2.

Secondly, the Court's opinion was unexpected considering its previous actions in the same case. Last year, the Supreme Court issued a temporary stay on the district court's order that prohibited the use of the illegal map, effectively allowing its implementation in the 2022 election. By ultimately ruling in favor of the plaintiffs on the merits, it is now evident that the Supreme Court's stay resulted in the denial or restriction of voting rights for Black voters during the previous federal midterm election. 

Ultimately, Allen v. Milligan holds great significance in the chronicles of race and democracy in the United States. The late John Lewis consistently emphasized the immeasurable value and sacredness of the right to vote. Back in 1965, Lewis and fellow activists encountered violent opposition while marching to secure this very right, which was eventually protected by the Voting Rights Act. Weakening or invalidating the Act would have dealt a severe blow to the Civil Rights Movement’s paramount legislative accomplishment. Nonetheless, the Act endured, persevering to face new challenges in the future. 

Fred Smith Jr., Charles Howard Candler Professor of Law