The Supreme Court (SCOTUS) is currently considering the case Merrill v. Milligan, where the State of Alabama allegedly attempted to redistrict their congressional map in a way that under represents black voters.
Alabama has been accused by Evan Milligan, the executive director of Alabama Forward, and his associates of illegally packing black voters into a single district while dividing other pockets of black voters across multiple districts. The case deals with Alabama’s 2021 redistricting plan for their seven seats in the House of Representatives.
In other words, Alabama is accused of gerrymandering.
“Gerrymandering” is essentially “laying out voting districts for political advantage,” said Benjamin Peterson, lecturer of history and political science at Alma College. In conjunction with other systems that do not represent most Americans, gerrymandering “creates a very real risk of the government only representing a minority of the people,” said Peterson.
Depriving voters of congressional representation “violates the 14th Amendment and the [Voting Rights Act],” said Kristin Olbertson, associate professor of history and pre- law program coordinator at Alma College. “[A ruling in Alabama’s favor has] potential to undermine citizens’ ability to translate their will into representation and policy.” The 1965 Voting Rights Act
(VRA) was signed into law by Lyndon Johnson, outlawing discriminatory voting practices adopted in many southern states after the Civil War, according to the National Archives.
The VRA “provides a series of systemic protections against measures intended to deprive people of the right to vote, or to simply make their vote less important,” said Peterson.
Alabama argues that to prove the VRA was violated, the plaintiffs must show the legislature was intentionally designed to discriminate against black voters. Further, the defense contends that the plaintiffs must provide maps of the districts based on other factors that would still result in majority- minority districts, electoral districts where most voters are racial or ethnic minorities.
“Neither of these standards [for the plaintiffs] are required by precedent or by the VRA,” said Olbertson.
“[The argument is essentially] that you cannot prove that it was an illegitimate gerrymander unless you could make a map that would produce the new district without considering race,” said Peterson. “If the Supreme Court did not have its current composition, I think Alabama’s argument would be weak.”
Despite weaknesses in the defense, SCOTUS is likely rule to in Alabama’s favor.
“This case is ultimately about the larger question of representative democracy,” said Olbertson. “The conservative supermajority on the Court has [been] skeptical about its role in preserving or protecting our democracy.”
Olbertson pointed to the Court’s position in Shelby County v. Holder (2013), where SCOTUS ruled parts of the VRA unconstitutional. SCOTUS argued in Shelby County v. Holder that “racism no longer [affects the American] electoral system,” said Olbertson.
Olbertson also noted that SCOTUS has overturned precedence-setting cases and that such cases are in danger of being overturned.
“It wouldn’t be shocking of SCOTUS overturned [Thornburg v. Jingles],” said Olbertson. Thornburg v. Jingles is a case from 1986 in which SCOTUS unanimously ruled that a North Carolina redistricting plan unlawfully discriminated against black voters.
So, in the case of Merrill v. Milligan, the question becomes one of how large the margin in Alabama’s favor will be.
“The margin might be Chief Justice John Roberts,” said Olbertson. “[He seems] slightly uncomfortable at times about how fast and loose [SCOTUS] is playing with institutional norms and has concerns about [SCOTUS]’s legitimacy.”
SCOTUS is expected to release their decision following November elections.