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On February 7th 2022, the Supreme Court agreed to hear Merrill v. Milligan (2022), a case asking whether Alabama’s 2021 House redistricting plan violated Section 2 of the Voting Rights Act of 1965. The case involves a redistricting plan for Alabama seats in the United States House of Representatives created following the 2020 census. Several organizations challenged the map alleging that it reduced the power of Black voters to elect their chosen candidates. An Alabama District Court agreed with the challengers and granted a preliminary injunction ordering the state to draw a new map, citing the fact that the original map violated Section 2 of the Voting Rights Act. This was followed by a 5-4 ruling by the Supreme Court to freeze this injunction, on the principle that the Supreme Court would later make a decision on the constitutionality of Section 2 of the Voting Rights Act. The Supreme Court, in this case, has the power to significantly weaken the Voting Rights Act. Similar to previous cases, Merrill v. Milligan has the potential to significantly weaken the Voting Rights Act of 1965 by narrowing the reading of Section 2 to prevent plaintiffs from showing that they can create a reasonable majority-minority district while taking account of race. This case, while the most recent, is not the first attack on the Voting Rights Act, as several previous court cases have weakened the act. Over time, the Voting Rights Act of 1965 has been severely gutted, destroying protections for minority voters.
Though Black men were formally given the right to vote by the 15th Amendment, many southern states adopted exclusionary practices which hindered this right after the Civil War. To end such practices of racial discrimination in voting, The Voting Rights of 1965 was passed by President Lyndon Johnson’s Administration. The most general provision, Section 2, prohibits voting practices from discriminating against voters on the basis of race, color, or language. It states that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” This section summarizes the aim of the law, and other sections prohibit specific actions or create avenues for enforcement of the law. Section 201, for example, prohibits requiring a person to comply with any “test or device” to vote, and Section 3(c), states that a jurisdiction that racially discriminates against voters, in violation of the Fourteenth or Fifteenth Amendments, is subject to future changes to its election laws (pre-approved by the federal government).
The Supreme Court’s attack against the Voting Rights Act began with Shelby v. Holder (2013), which damaged the power of the Voting Rights Act by rendering Sections 4 and 5 ineffective. In Shelby County v. Holder, the city of Shelby County, Alabama filed suit against the United States Attorney General Eric Holder for a declaratory judgment that Section 5 and Section 4(b) are unconstitutional, arguing that the sections exceeded Congress’ authority under 15th Amendment, thus violating the 10th Amendment. The 10th Amendment dictates that all powers enumerated by the Constitution, not given to the Federal Government, belong to the states or to the people, thus states must be treated equally with equal powers. Section 4 and 5 gave the federal government the authority to review changes in state and local election law that were found to have problematic histories of racial discrimination in voting, including in the event that the new laws implemented by these states were deemed to have the purpose or effect of discriminating on the basis of race or language minority status, then the law would be struck down. Section 4b specifically provided a formula for the federal government to use in identifying these jurisdictions. This formula held that jurisdictions that maintained a test or device as a prerequisite to voting as of November 1, 1964 were to be under the rules of Section 5. This list was later extended in 1975, to include “Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia, as well as parts of California, Florida, Michigan, New York, North Carolina, and South Dakota,” as qualifying. Shelby County argued that the act violated the 10th Amendment because it treated states differently based on old facts with no relationship to the present day. In a 5–4 decision, the Supreme Court agreed, striking down Section 4(b) as unconstitutional. While the court did not strike down Section 5, without Section 4(b), Section 5’s preclearance is invalid unless Congress enacts a new coverage formula. This decision resulted in several states that were covered by 4(b) implemented laws that were previously denied by the federal government. This includes Texas, which passed a law that set strict requirements for the types of government-issued photo ID that must be presented in polling places. This law was previously blocked by the Obama Administration for disproportionately hurting Hispanic voters. Similarly, some jurisdictions that had previously been covered by the coverage formula increased the rate of voter registration purges after Shelby County, meaning that thousands of people were taken off the voter registration list where registration is required to vote. While Shelby v. Holder was the first attack on the Voting Rights Act, it was not the last as seen eight years later.
Brnovich v. Democratic National Committee (2021) further damages the Voting Rights Act’s power by narrowing the reading of Section 2 in a way that makes it harder for plaintiffs to prove claims of voter denial. The Democratic National Committee challenged Arizona Registration Laws, believing they were discriminatory towards Hispanics and Native Americans under Section 2 of the Voting Rights Act of 1965. Under Arizona Law, counties can use a precinct-based system, in which registered voters may vote only at the designated polling place in their precinct. This means that if someone voted outside of their precinct, the county would discard their ballot, regardless of the voter’s eligibility. Additionally, Arizona law banned the collection of absentee ballots by anyone other than a relative or caregiver. In a 6-3 ruling, the Supreme Court ruled that the Arizona law did not violate Section 2. To make this decision, the court asserted a new, more narrow reading, of Section 2. This reading formed five “guideposts” that accounted for: (1) the size of the burden on voters, (2) the law’s departure from standard practice from when the law when section 2 was last revised, (3) the size of the disparity, (4) the other types of voting available, and (5) the state’s interest in enacting the law. These guideposts were a wide departure from the previous reading of the law by the 9th Circuit Court en banc, or entire appellate court, majority. The majority ruled in favor of the Democratic National Committee focusing on two factors: the impact of the law and the intent of the law. They held that both laws had a disparate impact on minority voters and were passed with discriminatory intent. This change to focusing on the size of the disparity between minority and majority voters rather than the fact that the disparity was there significantly weakened Section 2 of the Voting Rights Act. Brnovich v. Democratic National Committee (2021) was not the only attack against Section 2 of the Voting Rights Act, as another came just a year later.
Merrill v. Milligan has the potential to gut the Voting Rights Act by further narrowing Section 2. Based on precedent, the Supreme Court would rule in favor of Milligan, as outlined by Chief Justice Roberts in his dissent to the emergency stay order on the injunction. He stated that “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.” This argument by Roberts opens up the possibility that if the Supreme Court were to rule in favor of Merrill, they would be ruling off a new interpretation of Section 2. The new interpretation would limit the element of Section 2 that deals with dissolution of minority voters. Under the current reading of Section 2 established in Thornburg v. Gingles (1968), a violation occurs when states draw districts in a way that gives voters of color less power to elect representatives of their choice. The element of the “Gingles Test” that is relevant in this case, is the first precondition for Section 2 to be enacted against states, which is that the minority group is large and geographically compact enough to constitute a majority in a single-member district. Merrill argues that this test should be race-neutral, thus requiring the plaintiff to show that they can create a reasonable majority-minority district without taking account of race. Milligan and justices that support them rebuke this argument, saying that requiring race neutrality does not fit with the anti-racial discrimination reasons for the Voting Rights Act. In oral arguments, Justice Ketanji Brown Jackson said, “when I read Section 2, I don’t see that Congress is requiring race neutrality… It seems as though Congress is authorizing the consideration of race.” In the event that the Supreme Court were to rule in favor of Merrill and keep Section 2 intact, the narrowing reading would allow states to draw redistricting maps that disenfranchise minority voters in the event that disenfranchisement is not outwards on-purpose. As a result, this ruling would make it very easy for states to get around the dissolution of minority voters part of Section 2, thus weakening the Voting Rights Act significantly.Throughout its history, the Voting Rights Act of 1965 has been repeatedly weakened. Shelby v. Holder curbed the authority of the Voting Rights Act by rendering Section 4, and thus Section 5, ineffective, ruling that Section 4 violated the 10th Amendment of the Constitution. Brnovich v. Democratic National Committee hurt the Voting Rights Act’s power by narrowing the reading of Section 2, now focusing on whether laws directed to target minority voters made a significantly-sized impact rather than any sort of impact. Merrill v. Milligan now has the possibility to follow the ruling before it and further gut the Voting Rights Act by narrowing the reading of Section 2 to require plaintiffs to show that they can create a reasonable majority-minority district without taking account of race. Merrill v. Milligan may either be the end to repeated Supreme Court rulings that weaken the power of the Voting Rights Act or it could continue the trend. In the event that the Supreme Court rules in favor of Merrill, it would not only hurt Section 2 of the Voting Rights Act, but also it would weaken precedent for the law as a whole, making it easier to change or strike elements of the law.