Ongoing Voting Rights Act Redistricting Litigation After SCOTUS Ruling in Allen v. Milligan

In one of the most important decisions of the term, the U.S. Supreme Court upheld a lower court’s finding that Alabama diluted the electoral power of Black voters in violation of Section 2 of the Voting Rights Act when it redrew the state’s seven congressional districts in 2021. The 5–4 decision clears the way for the map to be redrawn in time for the 2024 election to create a second Black congressional district. 

Allen v. Milligan, as the case is known, is a welcome departure from the Court’s tendency in recent decades to scale back or even wholly eliminate voting rights protections. Rather than further pare back the Voting Rights Act as many feared, the Milligan decision forcefully rejected Alabama’s attempt to have the Court radically rewrite or strike down a critical voting protection for communities of color. Instead, it reaffirmed the legal framework that has guided courts in Section 2 cases for almost 40 years. 

Section 2 of the Voting Rights Act has long played an indispensable role in protecting against discrimination because it provides voters of color a tool to fight back against systemic exclusion from voting and effective representation. Instead of relying on federal enforcement by the Department of Justice, it creates an opportunity for minority communities to tell their own stories in court and challenge policies that limit their access to the ballot and legislative decision-making power. Section 2’s guarantees apply nationwide and ensure a baseline of fairness at all levels of government — congressional, state legislative, county commission, city council, school board, and judicial districts and all other electoral systems must operate to provide all voters an equal opportunity to participate in the political process and to elect candidates of choice. 

Since the Supreme Court adopted it in 1986, Section 2’s framework has helped communities of color pry the door open to political power. After the 1990 census, for example, five Southern states drew congressional maps that enabled Black and Latino communities to elect their preferred candidates for the first time. Yet in many ways, the impact on representation for communities of color at the local level has been even more profound.

As the Milligan decision affirmed, lawmakers cannot enact electoral policies, including new voting districts, that limit the chances of electoral success for minority voters when compared to other voters. Section 2’s standard focuses on contexts where white voters systematically oppose candidates preferred by minority voters and where the district lines advantage the larger white voting bloc and effectively lock out minority voters. Plaintiffs must also prove that it is possible to draw alternative district lines that avoid such outcomes. In other words, Section 2 looks at the role that race plays within the politics of a particular region and whether districting choices in combination with such voting patterns have the effect of limiting political opportunities when viable alternatives are available. 

But this is not the end of the inquiry: a successful Section 2 claim must also demonstrate that other circumstances intersect with the race dynamics in elections, such as the history of discrimination and ongoing social, economic, and political disparities, as Congress intended. All of these factors are inherently localized and fact-intensive.

Proving a Section 2 case is by no means an easy task, especially, as the Milligan opinion noted, at the congressional and state legislative levels. But discrimination against voters of color persists across the country, in part driven by lawmakers emboldened by the weakening of safeguards. As a result, voters of color continue turning to the Voting Rights Act for relief. Currently, there are at least 38 pending Section 2 cases across 12 states, as detailed by the map below: 

While many of these claims are in Southern states with long histories of voting rights abuses, including Alabama, Georgia, and Texas, communities are also seeking relief in states such as Kansas, Nebraska, and Washington.

The groups invoking Section 2 protections are as varied as the geographies covered by their lawsuits. Of the tracked cases, 18 have been brought by Black voters, 5 by Latino voters, 3 by American Indian voters, and 10 on behalf of multiracial coalitions (many of which include Asian voters). The following chart breaks down where lawsuits are pending on behalf of various minority communities:

These 36 cases run the gamut in terms of the types of districts and election systems at issue. The table below sorts the states with active Section 2 litigation by the level of government being challenged:

See a full list of the active Section 2 cases and links to the plaintiffs’ complaints in the appendix below.

Across these states and localities, voters of color are using Section 2 to lay out the relevant circumstances that limit their ability to have a seat at the policymaking table. Looking at some of the lawsuits filed by plaintiffs, the allegations demonstrate the political inequality faced by many voters and the indispensable role that Section 2 plays in contesting discriminatory maps.

In Milligan v. Allen, Black voters in Alabama’s Black Belt turned to Section 2 to challenge the congressional map that divided the region among four congressional districts, footnote1_yzfbsu2 1 The Milligan case also includes Voting Rights Act claims against Alabama’s legislative maps but those claims were not subject to the Supreme Court’s decision and so the factual basis for those claims are omitted from this analysis.  ignoring the request of Black constituents to be kept together in two districts.

Rather than respond to these calls, the legislature created three majority-white seats in the Black Belt where the Black share of the eligible voting population was 30 percent or less and one district where that population was 55 percent. Though this configuration resembled the old districts, the state’s demographics changed, as reflected in the 2020 census. And the racial dynamics in elections and significant disparities between the white and Black populations remained constant — a recipe for running afoul of the Voting Rights Act.

Sure enough, plaintiffs demonstrated that 85 percent or more of white voters in the Black Belt categorically oppose Black-supported candidates. This means that in the three districts where Black voters are outnumbered, white voters effectively control elections, no matter how many Black citizens turn out to vote or how hard they work to build a winning cross-racial coalition. Plaintiffs also submitted alternative district maps that demonstrated that Alabama’s district configuration was a deliberate choice and not necessitated by other redistricting considerations. Finally, Black voters showed compelling evidence of lingering socioeconomic disparities in the Black Belt that hinder opportunities to participate in the political process: extreme poverty and disparities in education and health outcomes, among other factors.

Taken together, these facts paint a grim picture of political inequality and a lack of response from elected officials — exactly the kinds of harms that Section 2 is designed to remedy.

In Palmer v. Hobbs, Latino voters in Washington challenged the configuration of state legislative districts in the Yakima area under Section 2. Specifically, plaintiffs challenged a district that is majority Latino that they allege does not provide Latino voters an opportunity to elect candidates of choice because of differences in voter turnout, stark levels of racially polarized voting, and enduring discrimination and disparities between Latino and white communities. The suit underscores that Section 2 cannot be applied mechanically and that district maps must be assessed under existing conditions.

The Yakima Valley in Central Washington is a heavily agricultural region with a significant and quickly growing Latino population. The 2020 census showed that Yakima, Benton, and Franklin Counties, which make up the Yakima Valley, are now majority Latino. This is also a region with a long history of discrimination against Latino residents. Voting patterns are sharply divided on racial lines, and campaigns often feature overt and subtle hostility toward Latino candidates and voters. The Yakima Valley has also given rise to multiple Voting Rights Act cases in recent decades. In 2004, the Department of Justice successfully forced Yakima County to provide Spanish-language voting materials as required by federal law. And in the last 10 years, Latino voters filed two successful Section 2 suits to challenge how the cities of Yakima and Pasco elected their city councils.

Even with this recent record of problematic conditions in the region, the Washington Redistricting Commission ignored the call from advocates to draw a legislative district that would provide Latino voters a meaningful electoral opportunity. Instead, they drew a district whose citizen voting age population is 50.02 percent Latino, a bare majority that plaintiffs alleged would never elect Latino voters’ candidate of choice given significant disparities in political participation. Plaintiffs also point to other district configuration options available to the map drawers that could have drawn a district that did not effectively shut out Latino voters from being able to send representatives from Central Washington to the legislature.

Plaintiffs recently finished trial in this case and now await a ruling. The suit’s strong factual record should serve as a reminder to states and localities that quickly growing communities of color that have borne effects of discrimination and disparities can invoke Section 2 as demographics and on-the-ground electoral conditions demand.

In Petteway v. Galveston County, a group of Black and Latino voters from Texas’s Galveston County, near Houston, challenged a recently adopted county commission district map that dismantled a district that had previously given minority voters an opportunity to elect preferred candidates. The case squarely underscores how the Court’s loosening of voting rights safeguards has emboldened local tendencies toward discriminatory behavior and forced impacted communities to use Section 2 for relief.

Galveston County had been subject to preclearance under Section 5 of the Voting Rights Act before the U.S. Supreme Court gutted that provision in the 2013 Shelby County v. Holder decision. Under the preclearance regime, the county had to submit any changes to its district map and other election rules to the U.S. Department of Justice or a federal court in Washington, DC, before the proposed changes could take effect. In the 2011 redistricting cycle, the Department of Justice used Section 5 to block Galveston County’s proposed commissioner map for limiting political opportunities for Black and Latino voters. This enforcement sent Galveston County back to the drawing board and produced a commission district where Black and Latino voters could elect their preferred candidates.

Fast-forwarding to 2021 redistricting, Galveston County’s commissioners dismantled the one district where Latino and Black voters combined to form a politically cohesive and effective majority, despite growth among Black and Latino populations. The new map disperses Black and Latino voters across all four commissioner seats where white voters constitute a majority. Plaintiffs believe that white voters across the county categorically oppose candidates favored by Black and Latino voters. They also point to ongoing disparities and a long and well-documented history of discrimination, including school segregation and disparities in funding recovery after a devastating hurricane, to make the case that Galveston County has violated Section 2.

This case is currently scheduled to go to trial in August 2023, when plaintiffs will have an opportunity to prove their case.

In Winnebago Tribe of Nebraska v. Thurston County, American Indian voters and the Winnebago and Omaha Tribes of Nebraska filed a Section 2 lawsuit for the third time in 45 years to challenge how Thurston County in Nebraska drew its board of supervisor districts. Like the Galveston County case, this lawsuit speaks to the brazenness of government officials at a time when voting rights protections have been scaled back.

To support their claim, plaintiffs point to Thurston County’s growing American Indian population, which now makes up a majority of eligible voters, and the decision to adopt a map where only three of seven districts give American Indian voters an opportunity to elect their preferred candidates. The Thurston County Board of Supervisors ignored the repeated requests of tribal leaders and American Indian residents to configure districts in ways that would provide for an additional electoral opportunity. Considering the consistent opposition of white voters to the preferences of American Indians in Thurston County and a long history of discrimination and ongoing socioeconomic disparities in employment, income, education, and access to health care, plaintiffs believe the adopted district plan violates Section 2.

Plaintiffs also point out that the U.S. Department of Justice had to bring a Section 2 suit against Thurston County in the 1970s to ensure that American Indian voters had an equal opportunity to elect preferred candidates. That suit challenged the at-large election system that discriminated against American Indian voters and resulted in the county adopting the seven-member district election system for electing the county’s governing body, which is still in effect today. However, private plaintiffs had to file a second suit in the 1990s to make sure that the district system could not be used to limit American Indian voters to two districts after the county’s demographics changed.

Yet again, tribal leaders and American Indian voters are forced to go to court to secure relief from discriminatory districting. Like in the 1990s, they allege that the county’s map fails to reflect the demographic changes, which will result in impermissible underrepresentation.

The highlighted suits and others speak to the continued importance that Section 2 plays in giving voters of color a voice to challenge district maps and the systems that deny equal electoral opportunities. In most of the pending cases, plaintiffs have yet to prove the facts that they allege, so it is too early to assess how these claims will fare before the courts. But even the existence of these suits suggests that many communities of color across the country contend with significant barriers to political participation and are actively seeking redress.

Seeing which suits will ultimately succeed will require some patience. The timeline for each dispute differs from case to case. Some were put on hold in anticipation of the Milligan decision or were filed recently and are still in preliminary stages. Others, like the claim in Washington State, have just finished trial. The Milligan Alabama case and the claims challenging congressional districts in Georgia and Louisiana are perhaps on the strongest footing to deliver results ahead of the 2024 election — there, trial courts have already applied the Section 2 standards to the underlying facts and found that plaintiffs are likely to succeed.

No matter their procedural posture, all 36 active cases now have the benefit of the U.S. Supreme Court’s guidance that reaffirms the congressional intent of the Voting Rights Act and the judicial analytical framework that has supported 40 years of antidiscrimination enforcement.