In its recent decision in Allen v. Milligan, the Supreme Court, to the evident surprise and pleasure of progressive commentators, handed down a five-to-four provision that sustained a racial-discrimination challenge brought by black voters in Alabama to a district map prepared by Alabama’s Republican Party. That map gave black voters, who compose about 27 percent of Alabama’s population, only one seat in Congress out of the seven seats available for Alabama. By contrast, the plaintiffs’ plan created two majority-black districts, giving black voters majority control over 29 percent of Alabama’s delegation.
The closeness of the decision reflects the difficulty of the analysis. When the Voting Rights Act was first enacted in 1965, everyone with empathy shared the common desire to end the massive systematic discrimination that stopped a large fraction of black voters from entering the nation’s voting booths. That initial intervention counted as a political achievement of the highest order by the time the act came up for renewal in 1982. Then, as often happens in politics, the initial legislative success translated into spirited movement to expand the scope of the statutory guarantees. Thus, in 1965 the basic prohibition extended to any state “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . .” As drafted, this reads as if it addressed the problem of the day—voter access—while leaving it far from clear whether it also attacked how states set up districting lines, an issue which for the first time had come under a successful constitutional attack in Baker v. Carr (1962). Baker v. Carr struck down a Tennessee apportionment law that created and preserved vast population differences between rural and urban counties, but which nowhere made a single explicit reference to race.
A nanosecond of reflection makes it clear that the second potential goal of equal influence by race is fraught with far greater complexity than voter access. Nonetheless, section 2(b) of the 1982 Act waded into this political thicket:
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
The initial phrase in subsection (b) reads as if the new rules apply only to the voter access rules covered by subsection (a), which is just how Justice Thomas reads it in Part I of his dissent, which was joined only by Justice Gorsuch. Indeed, Thomas went so far as to suggest that “the Constitution would not permit” any reading that allowed maps to be intentionally redrawn to give black voters a number of seats roughly proportional to their population.
But the real battle in Allen took a very different turn, which presupposed that subsection (b) was directed, as the text evidently suggests, to the vast array of political actions that determine the composition of the districts, for which the “totality of circumstances” does not speak with a clear voice on which schemes “are not equally open to participation” by blacks (the only protected class) in the political process. But that is then followed by a proviso that rules out a “right” to proportionate representation, without making it clear how much wiggle room is left in the basic statutory command.
This section belies the all-too-common belief that legislatures have some magic wand that lets them command an expertise not available to courts. The Supreme Court in Thornburg v. Gingles (1986) took its best shot at Section 2 when it held that scrutiny is required when members of the two groups consistently prefer different candidates, which is painfully clear when black voters have strong Democratic preferences and white voters Republican ones. Then three conditions were imposed to meet the jumbled command of Section 2. The first demands that the minority group “is sufficiently large and geographically compact to constitute a majority in a single-member district.” The second calls for a minority group that is “politically cohesive,” so much so that—and here race comes to the fore—“the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.” In Shaw v. Reno, (1993), these tests were tough enough to strike down a state redistricting effort that created a grotesque district, with a stray tentacle running for miles down an interstate highway solely to create a second majority-minority district.
Naturally, the endless variations put forward in this instance are subject to honest differences in interpretation, so it is hard to see whether there are two politically cohesive groups that meet this test, which is why the fifth vote in the winning coalition, the partial concurrence of Justice Kavanaugh, takes on special weight. Kavanaugh takes the view that the dissenters can reach their result only by implicitly overruling a decision that Congress has let stand for thirty-seven years. He also thinks that the proviso is not called into play so long as the process used to obtain the approved map focuses, as Section 2 indicates, on the forbidden set of effects. But he agrees with Thomas on the critical point that even if the 1982 Congress could constitutionally authorize race-based districting, it could not do so forever, a proposition that suggests that he thinks that this case is at the outer limit of what the court should tolerate.
Within these parameters there is a spirited debate over whether the three-factor Gingles test, especially compactness, is met. It is impossible to summarize that debate here, but the final result is no real surprise because the institutionalist chief justice shows, at least in this context, a greater affinity for racial testing. At one level, his close factual analysis could be read as at war with his earlier decision in Rucho v. Common Cause, where he took the odd position that a court imposes strict limits on the size of districts but can and should do nothing to stop the partisan intrigues in which both parties try to shape the states they control to maximize political power.
Nonetheless, Roberts was quite willing to jump into the political thicket when race was at issue. The question is how much further this goes. In a provocative article in the New York Times, voting-rights scholar Richard Hasen writes that in an opinion that is both shocking and welcome, the chief justice threw a curveball; Hasen finds it puzzling that Roberts could take this position in Allen, given that he had opposed Section 2’s expansion when he worked in the Reagan administration and has struck down Section 5 of the 1982 statute in Shelby County, Alabama v. Holder. Section 5 had extended the requirement that key states, including Alabama, be required to gain federal permission before enacting any change in local law. Why, Hasen asks, be deferential in one case and interventionist in the other?
But there are good reasons that reflect well on the chief justice. Just because he opposed the expansion of Section 2 does not mean that as a justice of the Supreme Court he should undermine it. Better to give what he thought was its best reading. More critically, Section 5 review applied to the former Confederate states, carefully designated in tests pursuant to tests set out in Section 4 of the Act for their egregious voting-rights records in 1964. But by 2013, when Shelby was decided, the world had moved on so that by the time the VRA was extended in 2006 for yet another twenty-five years, the earlier racial voting gaps had been erased.
The obsolete 1965 map was a serious affront to the state sovereignty of the covered states. In essence, the chief justice put it back on Congress to set up a new list of states to be subject to oversight based on these criteria. But Congress could not adopt a political compromise that retained an obsolete list simply because Congress could not create a new one. Professor Hasen strongly endorses Justice Ginsburg’s dissent in Shelby, which argued that oversight was needed to consolidate past gains and to “guard against backsliding.” But the Ginsburg opinion takes no note of the risk of overdeterrence, especially when Section 2 is still in place.
In choosing remedies, the balancing of equities is hard. The chief justice should not be faulted for his reasoned efforts to meet that challenge.
