(R-33) Minority Voting Power: Supreme Court Hears Voting Rights Act Challenge to Congressional Redistricting Map

On October 4, 2022, the Supreme Court of the United States heard oral arguments in a case that could decide the future of voting rights for underrepresented minorities around our nation. This significant case challenges an Alabama congressional redistricting map under Section 2 of the federal Voting Rights Act (VRA). The ruling could impact how lawmakers in other states draw their congressional district maps. The Court’s conservative majority appear open to making it harder to create majority Black electoral districts in this latest showdown over the VRA that could have far-reaching effects on minority voting power across the United States. During oral argument, the liberal justices combined for an aggressive and unified defense against Alabama’s efforts to limit creation of voting districts in which minorities have the ability to elect candidates of their choice. The state is challenging a unanimous decision by a three-judge panel that said it must create a second congressional district, out of seven, in which an African American candidate would have a good chance of being elected. Alabama’s electorate is 27 percent Black, and the charge is that most of those voters are packed into one district and the rest spread among others so that their voting power is diluted. The oral arguments were the first Supreme Court case involving race for rookie Justice Ketanji Brown Jackson. A decision in Merrill v. Milligan (Docket No. 21-1086) consolidated with Merrill v. Caster (Docket No. 21-1087) is expected by late June 2023. This article discusses Section 2 of the VRA in the context of redistricting; the lower court rulings and the U.S. Supreme Court stay; the debate at oral argument over Alabama’s refusal of a second Black voting district; and concludes with possible implications of this case for Congress.

Section 2 of the Voting Rights Act. Since its passage in 1965, the Voting Rights Act has effectuated Congress’ "firm intention" to "banish the blight of racial discrimination in voting" and ensure that the Fifteenth Amendment’s guarantee — that the "right . . . to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude," U.S. Const. amend. XV — becomes a reality throughout the United States. South Carolina v. Katzenbach, 383 U.S. 301, 308 (1996); see also Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2330–31 (2021).

Section 2 of the Voting Rights Act plays a narrow but critical role in redistricting. Congressional district boundaries in every state are required to comply with Section 2, codified at 52 U.S.C. § 10301. Far from inviting the permanent or excessive use of race in redistricting, Section 2 surgically targets a set of carefully defined circumstances in which mapmakers ignored clear and reasonable alternatives that give minority voters the ability to engage in the "pull, haul, and trade" at the heart of the democratic process and instead, design racially polarized districts where minority voters are submerged and effectively shut out of the political process. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994). Conversely, where mapmakers do not choose a discriminatory map over non-discriminatory alternatives, Section 2 offers no recourse.

Section 2 authorizes the federal government and private citizens to challenge discriminatory voting practices or procedures, including the diminishing or weakening of minority voting power, known as minority vote dilution. Section 2 prohibits any voting qualification or practice applied or imposed by any state or political subdivision (e.g., a city or county) that results in the denial or abridgement of the right to vote based on race, color, or membership in a language minority. This prohibition includes congressional redistricting maps. Section 2 further provides that a violation is established if, based on the totality of circumstances, electoral processes are not equally open to participation by members of a racial or language minority group in that the group’s members have less opportunity than other members of the electorate to elect representatives of their choice.

In the landmark decision Thornburg v. Gingles, 478 U.S. 30 (1986), the Supreme Court identified three preconditions that were necessary, but not in and of themselves sufficient, to show that a district map improperly diluted a minority group’s voting power in violation of Section 2. The Court provide structure to guide the lower courts in the form of a three-pronged test for proving vote dilution under Section of the VRA. Under this test,

(1) the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single member district; (Gingles, 478 U.S. at 50.)

(2) the minority group must be able to show that it is politically cohesive; (Gingles, 478 U.S. at 51; see also Growe v. Emison, 507 U.S. 25, 40-41 (1993).) and

(3) the minority group must be able to demonstrate that the majority group votes sufficiently as a bloc to defeat the minority group’s preferred candidates. (Gingles, 478 U.S. at 51.)

Where any one of the three Gingles conditions is not met — or if these conditions change over time as communities become less racially polarized or as broader social, economic, and political racial disparities ease — liability will not exist. See Voinovich v. Quilter, 507 U.S. 146, 158 (rejecting a Section 2 claim in the absence of evidence that the White majority voted as a bloc); Wright v. Sumter Cnty. Bd. of Elections and Registration, 979 F.3d 1282, 1308 (11th Cir. 2020) ("We do not suggest . . . that Section 2 allows a protected group to bring a vote dilution claim in perpetuity and irrespective of its numerical advantage.").

If Section 2 plaintiffs carry their burden and satisfy these three factors, Gingles directs lower courts to then conduct a searching, totality-of-the circumstances inquiry to determine if the challenged map, in fact, dilutes a minority group’s vote and violates Section 2. The high court in Gingles further opined that a violation of Section 2 is established if, based on the "totality of the circumstances" and "as a result of the challenged practice or structure, plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." To inform Section 2’s "totality of the circumstances" analysis, the Supreme Court listed the following factors, which originated in the legislative history, S. Rep. No. 97-417, at 28-29 (1982), as relevant:

(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;

(2) the extent to which voting in the elections of the state or political subdivisions is racially polarized;

(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;

(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;

(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health, which hinder their ability to participate effectively in the political process;

(6) whether political campaigns have been characterized by overt or subtle racial appeals; and

(7) the extent to which members of the minority group have been elected to public office in the jurisdiction.

Under certain circumstances, as discussed by the Supreme Court in Bartlett v. Strickland, 556 U.S. (2009), Section 2 may require the creation of one or more "majority-minority" districts in a congressional redistricting map in order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a language minority. A majority-minority district is one in which a racial or language minority group comprises a voting majority. The creation of such districts can avoid minority vote dilution by helping ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an equal opportunity to elect candidates of choice.

Lower Court Rulings. On January 24, 2022, in Milligan v. Merrill, a three-judge federal district court issued a preliminary injunction in a consolidated case challenging the Alabama congressional redistricting map under the Fourteenth Amendment and Section 2 of the VRA. The congressional redistricting map created by the State of Alabama contains one majority-minority district out of a total of seven districts. The court ordered Alabama to revise its congressional redistricting map to establish an additional majority-minority congressional district before the state could conduct the 2022 congressional elections.

Evaluating the plaintiffs’ request for a preliminary injunction, the district court concluded that the challengers to the redistricting map were substantially likely to prevail in their argument that the map impermissibly dilutes the votes of Black Alabamans in violation of Section 2 of the VRA. Applying the first prong of the Gingles test, the court determined that Alabama Black voters "are sufficiently numerous to constitute a voting-age majority in a second congressional district," observing that Black voters constitute approximately 27 percent of the population in the state, but a majority in only one of the seven congressional districts. In reaching this conclusion, the court rejected the state’s argument that in ascertaining the Black voting age population, only those voters who identified in the 2020 census as "single-race Black" should be counted. Moreover, the court determined that the minority population in the challenged districts "is sufficiently compact to constitute a voting-age majority" in a second congressional district.

Applying the second and third prongs of the Gingles test, the court in Milligan ascertained that "there is no serious dispute" that minority voters in the challenged districts are politically cohesive and that the majority votes sufficiently as a bloc to defeat the minority group’s preferred candidates. Next, the court assessed the "totality of the circumstances," considering the factors outlined in Gingles. Specifically, the court observed that racially polarized voting occurs in the challenged districts and that, among other things, "[n]o Black person has won statewide office in Alabama since 1996" and "[t]here are currently no African-American statewide officials in Alabama." Hence, the court concluded that Black voters in Alabama "have less opportunity" than other voters "to elect candidates of their choice to Congress." In view of deciding this case on a statutory basis, under the VRA, the court declined to consider the constitutional claims under the Fourteenth Amendment that were raised by the challengers.

Also on January 24, 2022, in Caster v. Merrill, a federal district court issued a preliminary injunction in a case challenging the Alabama congressional redistricting map under Section 2 of the VRA. The court in Caster adopted the description of the evidence, fact finding, legal analysis, and conclusions of law from the preliminary injunction order issued by the three-judge court in Milligan v. Merrill, discussed above.

On January 28, 2022, the State of Alabama filed an emergency application for an administrative stay pending appeal to the U.S. Supreme Court. Under federal law, constitutional challenges to redistricting maps are heard by three-judge federal district courts, 28 U.S.C. § 2284, and parties may directly appeal, 28 U.S.C. § 1253, orders issued by such courts to the Supreme Court. In contrast to petitions for certiorari, in cases where federal law provides for direct appeals, the Supreme Court notes "probable jurisdiction" to indicate jurisdiction over the case.

Supreme Court Stay. In Merrill v. Milligan, the Supreme Court issued a brief order on February 7, 2022, staying the lower courts’ preliminary injunctions. By issuing a stay, the highest court in the land, in effect, reinstated Alabama’s congressional redistricting map that contains one majority-minority district. The Court also agreed to consider the cases on the merits, and on February 22, 2022, consolidated Milligan and Caster, allotting time for oral argument.

In a concurrence, Associate Justice Brett M. Kavanaugh, joined by Associate Justice Samuel A. Alito Jr., responded to Associate Justice Elena Kagan’s dissent, discussed below, and emphasized that the stay order neither changes the status quo of voting rights law nor signals that such a change is forthcoming. The concurrence observed that the underlying Supreme Court precedent relevant to this case — Gingles and its progeny — which involves the intersection between the VRA and the Equal Protection Clause of the Fourteenth Amendment, "is notoriously unclear and confusing."

The stay order was necessary, the concurrence further reasoned, to comply with election law precedent establishing that federal district courts generally should avoid enjoining state election laws close to an election, citing Purcell v. Gonzalez, 549 U.S. 1 (2006). Should a lower court violate that principle — known as the Purcell principle — a federal appellate court should stay such an injunction, the concurrence announced. Moreover, the concurrence observed that federal court changes to election laws shortly before an election "can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others." Congressional primaries in Alabama are scheduled to begin, by absentee voting, on March 30, 2022. In addition, according to the concurrence, the stay will permit the Supreme Court to consider the merits of this case "in an orderly fashion — after full briefing, oral argument, and our usual extensive internal deliberations," thereby ensuring that the Court does not have to decide the merits on an emergency basis.

In a dissent, Chief Justice John G. Roberts Jr. argued that the district court issued a lengthy opinion that properly applied existing law "with no apparent errors for [the Court’s] correction." According to the Chief Justice, the appropriate standard for ascertaining vote dilution claims under Section 2 of the VRA is the first prong of Gingles, which the district court properly applied and then determined that the challengers had met after "review[ing] the submissions of the plaintiffs’ experts." Similar to the concurrence, the Chief Justice criticized Gingles and its progeny for prompting "considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim." The Chief Justice, in order "to resolve the wide range of uncertainties arising under Gingles," noted probable jurisdiction in Milligan and would have granted certiorari before judgement in Caster. The Chief Justice would not have granted a stay because the lower court properly applied Supreme Court precedent in this case. In contrast to the concurrence, the Chief Justice’s dissent did not address whether the lower court had violated the Purcell principle.

Joined by Associate Justices Stephen G. Breyer and Sonia Sotomayor, Associate Justice Elena Kagan also dissented, maintaining that the district court in this case properly applied Supreme Court precedent regarding the VRA and criticizing the Court for issuing a stay after a "scanty review." Observing that the lower court amassed a significant factual record created after hearing over seven days of testimony and assessing over 1,000 pages of briefing, Kagan argued that the lower court did not err under current law. While conceding that there may be a reason to revise the Supreme Court’s VRA precedent in the future because of the advent of modern redistricting software technology, the dissent warned that revising Court precedent can only occur after the parties submit full briefings and arguments. In particular, the dissent characterized the standard proffered by the State of Alabama as adding "a new requirement" to the VRA. This requirement, the dissent argued, would require challengers to show that the use of modern redistricting software would result in the creation of two majority-minority districts, instead of one, even though the technology is designed not to take race into account. As the first prong of the Gingles test necessarily requires considering race to determine whether an additional majority-minority district needs to be drawn to comport with the VRA, the dissent argued that the standard proffered by the state is premised on a new, unfounded interpretation of Gingles. The dissent reasoned that "[a]ccepting Alabama’s contentions would rewrite decades of [the] Court’s precedent about Section 2 of the VRA." Finally, the dissent disagreed that the Purcell principle should apply in this case because the general election is scheduled to occur in approximately nine months; the primary in approximately four months; and the absentee primary voting, which the state has the ability to modify, in more than two months after the district court issued the preliminary injunctions. According to the dissent, the Supreme Court has denied stays in redistricting cases within similar time frames.

Oral Argument. On October 4, 2022, the Justices heard nearly two hours of oral argument with some conservative Justices seemingly sympathetic to Alabama’s arguments that the Supreme Court should insist on a "race-neutral" approach to redistricting and should make it harder for people claiming racial discrimination in voting to clear an early legal hurdle. Associate Justice Samuel A. Alito Jr. said it is too easy for people suing over discrimination in redistricting to win because the first bar in the legal test is too low — simply showing that another political district could be drawn in which minority residents make up a majority of voters. In practice, Alito said, "will not the plaintiffs always run the table?"

The outcome appears to rest with Associate Justices Amy Coney Barrett and Brett M. Kavanaugh. Their questions reflected an openness to a narrow win for Alabama than the broadest outcome the state seeks, which might even allow states to dismantle existing districts where racial minorities make up more than half the voters. Even the state’s "least far-reaching argument," as Alito put it, would result in many fewer districts drawn to give racial minorities the opportunity to elect their candidates of choice, the Court’s three liberal justices — Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor — countered.

Alabama’s solicitor general, Edmund G. LaCour Jr., a first timer before the Supreme Court, said the state redrew its congressional lines after the 2020 Census "in a lawful, race-neutral manner" that largely retained existing districts. LaCour claimed that the law does not require Alabama "to replace its map with a racially gerrymandered plan maximizing the number of majority-minority districts." It only "requires an electoral process equally open to all, not one that guarantees maximum political success for some over others." LaCour urged the Justices to adopt an interpretation of Section 2 of the Voting Rights Act that would effectively allow the state to take a race-blind approach to redistricting. If drawn using race-neutral criteria, LaCour suggested, then it is "equally open" to all voters and does not violate Section 2.

Associate Justice Elena Kagan informed LaCour that his position would significantly change the Supreme Court’s current approach to Section 2. "What strikes me about this case is that under our precedent it’s kind of a slam dunk if you just take our existing precedent the way it is, and the three judges below all found this," she observed. The three judges who heard the case in the lower court regarded it as an "easy" one, she stressed, particularly given the state’s history of discrimination and the extent to which voting in Alabama is described as "incredibly racially polarized." The three-judge panel was made up of one Democratic nominee and two judges nominated by President Donald J. Trump

Kagan referred to the Voting Rights Act as not only "an important statute" but "one of the great achievements of American democracy to [realize] equal political opportunities regardless of race, to ensure that African Americans could have as much political power as White Americans could" while lamenting recent Supreme Court decisions pruning back the protections the law provides. Conservative high-court majorities have made it harder for racial minorities to use the VRA in ideologically divided rulings delivered in Shelby County v. Holder, 570 U.S. 529 (2013) and Brnovich v. Democratic National Committee, 594 U.S. ___ (2021). "Now, in recent years, the statute has fared not well in this [C]ourt," the liberal Justice bemoaned, but underscored that Section 2 remains a remedy to combat discrimination in redistricting. If Alabama is successful, Kagan wondered, "what’s left?" A ruling for Alabama could weaken a powerful tool that civil rights groups and minority voters have used to challenge racial discrimination in redistricting.

Kagan pressed LaCour on whether Alabama could fashion a plan without any majority-minority districts under the state’s interpretation of VRA Section 2. "Some of your arguments . . . sweep extremely broadly." But Alabama, she warned, is asking the Court to "make it extremely difficult to prevail" in vote-dilution claims. “You’re asking us essentially to cut back substantially on our 40 years of precedent and to make this, too, extremely difficult to prevail on, so what’s left?” Kagan said to LaCour.

Associate Justice Sonia Sotomayor understands that the fight centers on Alabama’s Black Belt, named for its fertile black soil but also known as a swath in which many of the state’s Black voters live. The challengers’ maps remove some of those voters from the district that now routinely elects a Black congresswoman and create a second district in which a Black candidate would have a much greater chance. But LaCour acknowledges that could only happen by splitting the counties along the state’s Gulf Coast, which the Alabama said is a unified community of shared interest because of combined French and Spanish heritage. Sotomayor was unimpressed. "Just so happens that all of those people are White. And you’ve never split those communities," she said. "The Black Belt has all Black people or not all but mostly Black people" and it is always split in the state’s plans.

Associate Justice Ketanji Brown Jackson, the Supreme Court’s first Black female justice who was hearing her second day of oral arguments, rebuffed LaCour’s contention that Section 2 is "at war with itself and the Constitution" because requiring the state to create a majority-Black district would involve sorting voters based on race, which the Fourteenth and Fifteenth Amendments prohibit. Constitutional amendments adopted after the Civil War were intended to give a "constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to [W]hite citizens," Jackson illuminated. The Voting Rights Act "by its plain text is doing that same thing."

Jackson disagreed with arguments championed by the Alabama lawyer that redistricting has to be done without regard to race challenging LaCour’s assertion that neutrality on race was essential. Those who drafted the Fourteenth Amendment’s guarantee of equal protection, she said, did so "in a race-conscious way." They were, in fact, trying to ensure that people who had been discriminated against, the freedmen . . . were actually brought equal to everyone else in the society," she schooled.

Deploying an approach used by her conservative colleagues, the rookie Justice pointed to what she described as the "race-conscious" goal of the drafters of the Fourteenth Amendment. The drafters, she discerned, were "trying to ensure that people who had been discriminated against . . . were actually brought equal to everyone else in society." "That’s not a race-neutral or race-blind idea," Jackson concluded.

The arguments were the first Supreme Court case involving race for junior Justice Jackson. That question of constitutional colorblindness is one that could figure into the Supreme Court’s oral argument session on October 31, 2022, Halloween, when it hears challenges to the consideration of race in the college admissions process at Harvard (Docket No. 20-1199) and the University of North Carolina (Docket No. 21-707).

Associate Justice Samuel A. Alito Jr. shifted the discussion away from this argument he characterized as "quite far-reaching" to one he explained as the state’s "basic" and "least far-reaching" – but which would nonetheless be a tough test for challengers to pass. Under Gingles, the seminal decision governing claims that redistricting plans illegally dilute minority votes, a challenger must show (among other things) that a minority group is sufficiently large and compact to form a majority. Alabama argues that a challenger cannot clear this hurdle even if the state draws a map featuring a majority-minority district if an "unbiased mapmaker" would not generate such a map. That argument, Alito stressed, "is not at war" with the Court’s existing case law.

Alito circled around to this line of questioning with Deuel Ross, Senior Counsel and Director of Professional Development at the NAACP Legal Defense and Educational Fund, making his Supreme Court debut in the high stakes Alabama redistricting argument. Ross, no stranger to the case or to voting rights, is tasked with defending a unanimous three-judge district court panel’s ruling that Alabama had unlawfully discriminated against Black voters when it failed to create a second "majority-Black" district in the latest round of redistricting. Alito posits: If Gingles specifies that the minority group must be "sufficiently large and compact to constitute a majority in a reasonably configured district," wouldn’t the inquiry surrounding "reasonably configured" demand a determination of whether it is "the kind of district that an unbiased mapmaker would draw?"

Ross initially rejected the idea that a mapmaker’s biases should play any role in a Section 2 analysis, echoing that Section 2 "is about results and doesn’t speak to intent." Moreover, he added, "any standard that requires some sort of race blindness, as Alabama is saying, would not only make it difficult for plaintiffs to satisfy" this requirement under Gingles, but would also make it much harder for states to draw all of their congressional maps. But in any event, he continued, the lower court in this case determined that all of the challengers’ proposed maps adhered to traditional redistricting criteria just as much as, if not more than, the state’s map.

Justice Alito was fascinated with Alabama’s assertion that a "computer simulation that takes into account all of the traditional districting standards would almost never, in a million simulations, it would never produce a second majority-minority district" in Alabama unless specifically told to take race into account. But Ross replied that "there is nothing race-neutral about Alabama’s map." The judicial panel that heard the case, he said, found that Alabama’s plan divides the state’s Black community "and allows White bloc voting to deny Black voters the opportunity to elect representation responsive to their needs."

Arguing on behalf of other voters challenging the state, lawyer Abha Khanna, with the Elias Law Group, making her Supreme Court debut portrayed the Gingles requirement as a "demographic question about where the minority population is" versus whether a majority-minority district can be drawn without considering race as a factor. Adopting the state’s rule, she said, "would certainly be the first time this [C]ourt has instructed that plaintiffs actually have to tie one hand behind their demographer’s back and blind him to the actual demography of the state."

Associate Justice Amy Coney Barrett together with Associate Justice Alito appeared sympathetic to LaCour, with Barrett saying the states are "being asked to navigate the rock and the hard place" of the Constitution’s command of equal protection and the Voting Rights Act’s assertion of minority rights. Barrett’s line of questioning imitated Alito noting that under Alabama’s interpretation of Section 2, a challenger can satisfy the Gingles requirement "by coming in with one map that was drawn without taking race into account." If computer simulators can create an infinite number of maps that consider many varied factors other than race, Barrett said, "why would that be an unreasonable burden for a plaintiff to shoulder?'

Associate Justice Brett M. Kavanaugh channeled a slightly different question, which, in his view, was “the key under our precedents to interpreting Section 2" and the Constitution correctly: whether the additional majority-Black district in the challengers’ map is "reasonably compact." Kavanaugh suggested the answer to the case might be found in a narrower argument presented in Alabama’s briefs: "whether the newly drawn district alone is sufficiently compact or whether the minority population is so sprawling that any majority-minority district cannot be reasonably configured." Kavanaugh said he thought that was the right question, but Alabama had not supplied an answer. "Why do you think it’s so sprawling, given that it does respect a community of interest in the Black Belt, that it can’t be a new majority-minority district?" he asked. And more broadly, mentioned Kavanaugh, the question of whether a district is compact is one with which "the states and the plaintiffs and the district courts are all struggling" under the current law.

LaCour said the challengers did not use traditional redistricting practices in their proposed maps, but Kavanaugh did not seem to agree. Ross and Khanna said LaCour’s analysis was wrong.

Ross, who knows that there is a lot at stake, who knows that Alabama is the birthplace of the Voting Rights Act and in some ways the birth place of the civil rights movement, and who knows that in a lot of ways Alabama has been left behind in part because communities of color lack representation in the state, countered that the maps submitted by the plaintiffs closely resemble the state’s own map for seats on its Board of Education and they "increase opportunities for minority voters, while satisfying traditional and state redistricting criteria at least as well as Alabama’s map."

The task of the Office of the Solicitor General is to supervise and conduct government litigation in the U.S. Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General. The United States participates in approximately two-thirds of all the cases the Supreme Court decides on the merits each year. U.S. Solicitor General Elizabeth B. Prelogar, only second Senate-confirmed woman to serve as solicitor general and representing the Biden-Harris administration, described the history of racial discrimination in Alabama as "severe" and its underrepresented Black voters as "sufficiently numerous and compact to form a majority in a reasonably configured district." Because the state cannot win under the law "as it’s been applied for the past 40 years," it is asking the Supreme Court to "radically change the law," Prelogar said.

"[T]here are several different metrics . . . to measure compactness in redistricting litigation" explained the Solicitor General. But in this case, Prelogar told Justice Kavanaugh, the lower court "went through all of them" before concluding that the challengers’ map "performed as well or better than the" state’s plan. Moreover, Prelogar continued, even if Kavanaugh believes that "this is a tough question and maybe a different fact finder could have reached a different result," the Supreme Court should defer to the lower court’s findings.

Requiring race neutrality at the outset of proving discrimination, she said, would mean “nothing would stop Alabama and many other states from dismantling their existing majority-minority districts, leaving Black voters and entire swaths of the country with no ability to elect their preferred representatives.”

LaCour advised the Justices during his rebuttal that Alabama was not asking for "dramatic" changes in the law. Instead, "[w]e just need some clarification" about what redistricting law requires. Nearly two hours after the morning’s argument began, it seemed likely Alabama would prevail, even if it does not receive the sweeping victory it seeks.

Chief Justice John G. Roberts Jr. said little during the oral argument to telegraph his vote. Associate Justice Clarence Thomas and Associate Justice Neil M. Gorsuch also had little or nothing to say in Court, but Thomas in particular has voted consistently to limit the reach of anti-discrimination laws.

At the end of the?nearly two-hour argument, it appeared a majority of the Justices might not embrace Alabama’s request for a broad reinterpretation of how the law is enforced, and that a narrower compromise was a possibility. While the argument was lively, it did not seem to foretell the ultimate resolution. Two of the conservative Justices who seem likely to agree with Alabama, Clarence Thomas and Neil M. Gorsuch, asked either limited questions or, in Gorsuch’s case, none at all. Chief Justice Roberts has shown himself wary of classifying voters by race and, notably, was in the majority in both of the cases Kagan cited as weakening the Voting Rights Act. But he was a dissenter when the Supreme Court last spring put on hold the panel’s decision saying there should be two majority-minority districts. He said the judges had followed Supreme Court precedents and produced "an extensive opinion with no apparent errors for our correction." The case is another major test of the Voting Rights Act, which the Court’s conservative majority has diluted in recent years. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson seemed determined day to go down swinging if the current challenge eventually goes the same way.

Implications for Congress. Looking ahead, depending on how the U.S. Supreme Court rules on the merits in Merrill v. Milligan, the decision may affect standards that reviewing courts apply in determining when the creation of a majority-minority district in a congressional redistricting map is required under Section 2 of the VRA. For example, if a majority of the Justices agree that current Court precedent is unclear and uncertain — as espoused by the concurrence and the Chief Justice’s dissent — the Court may decide to clarify the law. In addition, the current, widespread use of modern redistricting software might also prompt the Court to revise its redistricting precedent, as Gingles was decided long before the advent of such technology. In response to the Court’s decision, and in accordance with the Constitution, Congress might choose to amend Section 2 of the VRA to either adjust, endorse, or reject the standard adopted by the Court in Merrill. By way of historical example, following the Court’s 1980 decision in City of Mobile v. Bolden, 446 U.S. 55 (1980), Congress amended Section 2 in 1982 to overturn the effects of that ruling.

Merrill is the second VRA case that the U.S. Supreme Court has agreed to consider recently. In July 2021, the Court decided Brnovich v. Democratic National Committee (DNC), determining the applicability of Section 2 to state voting rules, known as a vote denial case. Some legal commentators have predicted that Brnovich will result in less successful claims in such Section 2 cases. In response to the decision, legislation has been introduced to amend Section 2, including the John R. Lewis Voting Rights Advancement Act of 2021.