The Oldest Blog
A first amendment blog for school administrators and attorneys.
Allen v. Milligan: The Court Upholds the Voting Rights Act
The Supreme Court issued its long-awaited decision in Allen v. Milligan today, a Voting Rights Act case involving several challenges to Alabama’s 2020 redistricting plan. Thompson & Horton may do a deeper review of the decision later, but in the meanwhile, as many sources in the media are reporting, the decision by a combination of the three liberal justices (Kagan, Sotomayor and Jackson), Chief Justice Roberts (who wrote the opinion), and Justice Kavanaugh (for the most part) surprisingly upheld the lower court’s decision that Alabama’s 2020 redistricting plan violated the Voting Rights Act (“VRA”).
While the decision contains a good summary of the VRA and its implementing cases, and addresses a number of innovative arguments raised by Alabama (particularly involving the use of new computer software that allows millions of districting maps to be generated and compared), the ultimate outcome of Allen v. Milligan is that it does not really change anything:
- It reaffirms that the Supreme Court’s seminal decision in Thornburg Gingles, 478 U. S. 30 (1986) is still good law, and that Gingles and the VRA have been properly interpreted over the last several decades. Some of the dissenting justices would have overruled Gingles altogether.
- It reaffirms that the proper focus of the VRA is on effects, and not intent. (See Roberts at p. 10 (“To that end, we have reiterated that §2 turns on the presence of discriminatory effects, not discriminatory intent.”), and Kavanaugh at 16 (“But as this Court has long recognized—and as all Members of this Court today agree—the text of §2 establishes an effects test, not an intent test.”). However the dissent protests in this case, an intent-based test was clearly what they were angling for in Brnovich v. Democratic National Committee, 141 S.Ct. 2321 (2021), the Arizona case that addressed two provisions of state law that governed how ballots were collected and counted. That argument has now been firmly rejected.
- It rejects the argument that the VRA does not apply to districting plans, and should only focus on ballot access (See Roberts at p. 15 (“The dissent, by contrast, goes where even Alabama does not dare, arguing that §2 is wholly inapplicable to districting because it ‘focuses on ballot access and counting’ only….But the statutory text upon which the dissent relies supports the exact opposite conclusion.”). Ballot access is a pet theory of Justice Alito’s, and was a focus of Brnovich, so Robert’s (and Kavanaugh’s) pretty clear rejection of it in the redistricting context is a significant outcome of this case.
Justice Kavanaugh is now the ironic hero of the left. He did not join one small part of the majority opinion (section III-B-1), but I’m not really sure why. Justice Kavanaugh wrote separately to emphasize four things, that he thought were important, but his disagreement with section III-B-1 was not one of them.
For those who worry that the current Court appears to have little difficulty ignoring prior Supreme Court precedent, Justice Kavanaugh emphasized his differentiation between “statutory stare decisis” (which he says is subject to a “comparatively strict” standard) and “constitutional stare decisis” (i.e. overruling previous Supreme Court decisions like Roe v. Wade that are not based on statutory language). This may also be a significant impact of this decision.
