'Huge Surprise' as US Supreme Court Declines to Further Gut Voting Rights Act

In a Thursday move that shocked voting rights advocates and legal experts, two right-wing members of the U.S. Supreme Court joined the three liberal justices for a ruling that sided with Black voters challenging Alabama's latest congressional map that was racially gerrymandered by Republican legislators.

With the majority opinion—written mainly by Chief Justice John Roberts and backed by Justices Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh, and Sonia Sotomayor—the Voting Rights Act (VRA) dodges a bullet, as a pair of Politico reporters put it.

Slate's Mark Joseph Stern tweeted that "this is a HUGE surprise and a major voting rights victory," also noting that the high court's decision in Allen v. Milligan is "a boon to Democrats' chances" of retaking the U.S. House of Representatives in 2024.

"This fight was won through generations of Black leaders who refused to be silent, and while much work is left, today we can move forward with these reaffirmed protections civil rights leaders fought and died for."

Davin Rosborough, senior staff attorney with the ACLU's Voting Rights Project, declared that "the Supreme Court rejected the Orwellian idea that it's inappropriate to consider race in determining whether racial discrimination led to the creation of illegal maps. This ruling is a huge victory for Black Alabamians."

The national ACLU, its Alabama arm, the Legal Defense Fund (LDF), Hogan Lovells LLP, and Wiggins Childs LLC sued Alabama in November 2021 on behalf of four individual voters—Evan Milligan, Shalela Dowdy, Letetia Jackson, and Khadidah Stone—along with Greater Birmingham Ministries and the NAACP of Alabama, arguing that the state's new congressional map is racially discriminatory under Section 2 of the VRA and the 14th Amendment to the U.S. Constitution.

Although a three-judge panel granted a preliminary injunction in January 2022 and gave Alabama an opportunity to redraw the districts before last year's election, the state then obtained a stay from the Supreme Court and the contested map was used.

The high court's new ruling in the case—previously known as Merrill v. Milligan—was celebrated by the plaintiffs, who said in a joint statement:

In 2021, Alabama lawmakers targeted Black voters by packing and cracking us so we could not have a meaningful impact on the electoral process. They attempted to redefine Section 2 of the Voting Rights Act and shirk their responsibility to ensure communities of color are given an equal opportunity to elect their preferred candidates. Today, the Supreme Court reminded them of that responsibility by ordering a new map be drawn that complies with federal law—one that recognizes the diversity in our state rather than erasing it. This fight was won through generations of Black leaders who refused to be silent, and while much work is left, today we can move forward with these reaffirmed protections civil rights leaders fought and died for.

LDF senior counsel Deuel Ross, who argued the case before the court in October, explained that "Alabama attempted to rewrite federal law by saying race had no place in redistricting. But because of the state's sordid and well-documented history of racial discrimination, race must be used to remedy that past and ensure communities of color are not boxed out of the electoral process."

"While the Voting Rights Act and other key protections against discriminatory voting laws have been weakened in recent years and states continue to pass provisions to disenfranchise Black voters, today's decision is a recognition of Section 2's purpose to prevent voting discrimination and the very basic right to a fair shot," Ross continued.

Tish Gotell Faulks, the ACLU of Alabama's legal director, said that "the key takeaway from today's decision is the court's acknowledgment that the Alabama Legislature knowingly continued its legacy of drawing illegal voting districts that disenfranchise Black voters."

"Though we were victorious today, history shows us that lawmakers will erect many more hurdles before every Alabamian, irrespective of their race, can vote for representatives that reflect their beliefs, values, and priorities," Jones warned. "Efforts remain underway from Montgomery to Jackson to Baton Rouge, and elsewhere across the country to minimize, marginalize, and eliminate the ability of Black and Brown people to have a voice in their communities. Our communities then—as now—understand that the fight to uphold our civil rights is a daily pursuit. We will persist."

The Campaign Legal Center (CLC), which has been involved in several lawsuits challenging rigged election maps and filed a friend-of-the-court brief for this case, also welcomed the Thursday decision while highlighting ongoing attacks on voting rights.

"When self-interested politicians draw maps that suit their own needs instead of the needs of their community, our democracy becomes less inclusive and accountable," said CLC senior vice president Paul Smith. "We are heartened that the Supreme Court upheld Section 2 of the VRA, one of the most important tools available to ensure every voter, particularly Black and Brown voters who have historically been denied the freedom to vote, has an equal voice in our democracy."

"While this ruling is a step in the right direction," Smith added, "we will continue to fight tirelessly alongside our local allies in Alabama and across the country to challenge racially discriminatory voting maps in court and develop innovative policy solutions that protect and expand the freedom to vote for every American."

Pointing to Shelby v. Holder, Kareem Crayton, senior director of the Brennan Center for Justice's Democracy Program, stressed that the new decision "still leaves us with a weakened tool of enforcement. Ten years ago, this court ended the most effective part of the legislation, preclearance, and in 2021, made it very hard to use Section 2 to challenge racially discriminatory voting rules."

"Congress can and should step in to protect fair access to voting and representation for all," according to Crayton. "Our legislators must pass the John R. Lewis Voting Rights Advancement Act and the Freedom to Vote Act."