Litigation Update: Merrill v. Milligan

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, February 22, we discuss a Litigation Update: Merill v. Milligan. My name is Evelyn Hildebrand, and I am an associate director of practice groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are fortunate to welcome our speaker this afternoon, Professor Michael Morley. Professor Morley is an assistant professor at Florida State University College of Law, where he teaches and writes in the areas of election law, constitutional law, remedies, and the federal courts. He is also a member of the American Law Institute. Before joining FSU, Professor Morley was the Climenko Fellow and Lecturer in Law at Harvard. He clerked for a judge on the Eleventh Circuit, and he earned his J.D. from Yale. Professor Morley will have to say the name of the judge because I am—apologize—I’m blanking on the name. So anyways, a great delighted welcome to Professor Morley.

 

For our audience, a few housekeeping notes. After our speaker gives opening remarks, we will turn to audience questions. If you have a question, please enter into the Q&A feature at the bottom of your screen, and we will handle questions toward the end of the program. But you can enter those questions at any time, so again, the Q&A tab at the bottom of your screen. With that, thank you for being with us today. Professor Morley, the floor is yours.

 

Prof. Michael Morley:  And thank you very much. Happy to be here. And it was Judge Gerald Bard Tjoflat of the US Court of Appeals for the Eleventh Circuit. So today, I’ll be talking about the redistricting dispute that has arisen in Alabama, specifically with regard to the state’s congressional districts. I’ll begin by talking about the district court ruling in that case and then go on to talk about the US Supreme Court’s stay and then its decision to actually hear the case on the merits and potential implications for the future.

 

So the plaintiffs in Merrill, as well as -- there were actually a series of four separate cases. Some of them had challenged congressional district maps. One of them had challenged legislative district maps. Some of these cases involved constitutional challenges. Some of them involved challenges under Section 2 of the Voting Rights Act. Some of them involved both. Originally, two of the cases were combined for purposes of a preliminary injunction hearing before a three-judge district court panel. And then the Supreme Court, today, as a matter of fact, just consolidated them with yet another of the challenges that had been percolating below. And so, for our purposes today, I’ll be generally talking about these cases together and specifically focusing on the Voting Rights Act issue that the district court itself had ruled upon, invoking the constitutional avoidance canon.

 

So looking at the district court’s opinion, it was a straightforward application of current law interpreting Section 2 of the Voting Rights Act, specifically going back to a Supreme Court case known as Gingles, which said that, in redistricting cases, to determine whether or not the right to vote under Section 2 of the VRA of the members of a racial minority group had been violated, we need to look at three separate factors. Section 2 of the VRA specifies that no persons can have less of an opportunity to elect the candidates of their choice based on race. And so, most obviously, this prohibits the type of intentional racial discrimination that would independently violate the Fourteenth and Fifteenth Amendments to the Constitution.

 

But in 1982, Congress amended Section 2 of the VRA to go beyond that constitutional minimum, to provide additional prophylactic protection against certain types of measures that would have the effect of diluting the votes of members of racial minority groups, even in the absence of intentional racial discrimination. And in fact, in these cases, the constitutional claims had been based on intentional racial discrimination, but the Section 2 Voting Rights Act claim didn't rest on intentional discrimination. It was based on the notion that even in the absence of intentional discrimination, nevertheless, the way that congressional district lines were drawn impermissibly diluted and undermined the voting strength of members of racial minority groups—in particular, members of the African American community in Alabama—and thereby violated Section 2 of the VRA.

 

And so, applying this Gingles test that the Supreme Court had developed to identify what types of redistricting efforts, what types of redistricting maps violate Section 2 even in the absence of intentional racial discrimination, the Court starts out by applying three main factors. The first is, it inquires whether members of a racial minority group—and again, we’re dealing with African American voters in Alabama—whether that minority population is large enough to form its own -- to form a congressional district that would allow members of that racial minority group to elect representatives of their choice.

 

And so, this first factor focuses on both the size of the racial minority group as well as looking to where they live within the state—whether the distribution of members of that group are geographically compact enough to create a reasonably configured district that would give members of that group, essentially, the opportunity to elect members of their choice. So basically, the question is, can we create another district within the state such that it would be comprised of a majority of members of that group, and specifically looking at voting-age population members of that racial minority group.

 

And so, here, in this case in Alabama, there really wasn’t a dispute about the size of the African American population. The state’s African American population has grown to 27 percent. Currently, the state has only one majority-minority congressional district. There is one congressional district that has a majority of a black voting-age population. And so, the plaintiffs were arguing that a second congressional district should be created, which also has either an African American voting-age population -- or one of the other remedies they had suggested is, with a large enough African American population that, combined with other ideologically aligned groups—either white voters who support the African American-backed candidate, other voters who support the African American-backed candidate—is sufficient to allow the African American voters to select the candidates of their choice. And so, the case essentially boiled down to is, should a second congressional district in which African American voters are able to elect the representatives of their choice be created?

 

So in terms of population—particularly with African Americans comprising 27 percent of the population in Alabama—there was a strong argument that having only one congressional district, which was majority-minority, was, in fact, undermining the African American voting strength, that African Americans, to a certain extent, were packed within that district, and then the remaining African American population outside of that district were cracked among the other districts, meaning district lines were drawn in order to separate the African American population into several different districts in which they would -- in each of those districts, they would comprise such a small minority that they would be unable to realistically elect the candidates of their choice. And in fact, in those other districts, historically, they’ve generally been unable to elect the candidates of their choice.

 

So with the size of the state’s African American population not in dispute, in terms of the first Gingles factor, the main debate tended to focus on, are the proposed second majority-minority districts geographically compact enough? Are they sufficiently consistent with traditional redistricting criteria in order to give rise to a Voting Rights Act of violation here, in order to give rise to a statutory obligation to create an additional majority-minority district? Or instead, are African American voters -- given where they live, given their geographical dispersion, would a second district violate this compactness requirement, violate traditional redistricting principles such that there is no obligation to create a second district under the Voting Rights Act?

 

The plaintiff’s experts proposed numerous maps—presented numerous maps in evidence—where they were able to create a second majority-minority district. In various respects, these alternate code districts were more in accordance with certain traditional redistricting criteria. Most notably, some of the maps kept more counties together than the map that the legislature had adopted. And so, the plaintiff’s experts were able to show that there are, in fact, alternate maps which would have a second-majority minority district—a second district with majority African American voting-age population—that would also be consistent with traditional redistricting criteria, and that, in various respects, we’d be at least as good as or sometimes even better than the state’s own map in terms of its compliance with those criteria.

 

The second major element of a Gingles claim is whether the minority group is politically cohesive—whether members of the minority group tend to exhibit what’s referred to in the case law as racial bloc voting, that members of the African American voters in Alabama generally tend to support the same candidates. And in fact, there really wasn’t a serious dispute in this case as to the existence of racial bloc voting as to whether or not African Americans in the state generally tended to support the same candidates.

 

The third factor then is whether, due to racial bloc voting—the preferences of the majority voters, the preferences of white voters—systematically tend to override the preferences of racial minority voters such that members of racial minority groups—here, in the African American community—don’t actually have the same opportunity to elect representatives of their choice as white voters would have. And so, again, the plaintiff’s experts presented evidence as to past statewide elections. They showed that the candidates generally supported by members of the African American community lost statewide elections to the candidates that were supported by the white community. Looking at congressional-district-level elections, aside from representatives elected from the state’s majority-minority district, in the other districts in the state, the African American-backed candidates generally tended to lose to the candidates that were backed by members of the majority white community.

 

Shortly before the district court’s opinion, there had been a special election where an African American wound up winning a seat in the legislature. Because it was a special election—in particular, because it was a low-turnout election—the Court did not place particular emphasis or particular weight on that example. But in fact, in looking to the history—and in particular, there were seven congressional elections and six statewide elections that the plaintiff’s expert had looked to—the Court was comfortable finding systematic racial polarized voting such that members of the black community were outvoted. At least, those outside of the majority-minority district were consistently outvoted by white voters within the state, and so they didn't, in fact, have the same opportunity to elect the candidates of their choice.

 

So having found that the Gingles factors tilted in favor of the plaintiffs—that basically there was a large enough African American community such that it was possible to draw a second congressional district that in the Court’s view would be reasonably compact enough, would be sufficiently consistent with traditional redistricting criteria, that it was possible to create such a district, and that in the absence of such a district, members of the black community were likely to continue to be consistently outvoted given this racially polarized voting in the state—the Court then turned its attention to what are commonly referred to as the Senate report factors—that when Congress amended Section 2 of the VRA to allow for these nonintentional discrimination claims, to allow for this effects-based analysis, the Senate report accompanying that amendment listed several factors that a court can consider as part of the totality of the circumstances in determining whether or not this racially polarized voting gives rise to a Section 2 violation that would require a remedy.

And looking through the Senate factors, many of them tilted -- the Court concluded many of them tilted quite sharply in favor of the plaintiffs. And so, the Court looked to the history of voting-related discrimination in the state. And so, in this respect, it was able to reach back as far the reconstruction era to show a history of reconstruction.

 

Certainly, in the debates surrounding the Alabama Constitution of 1901, there was expressed racist language used during the Constitutional Convention. An overt purpose of many of the provisions in the Alabama Constitution of 1901 had been adopted in order to have racial suppression in order to make it more difficult for members of racial minority groups to vote. And even looking more recently, the Court pointed to the fact that several state legislative districts a few years earlier had been found to be unconstitutional racial gerrymanders. The fact that before Shelby County -- before the Section 5 preclearance requirements under the VRA had essentially been suspended as a result of Shelby County, numerous submissions for changes to election rules and election procedures, either from Alabama or political subdivisions of the state, had been rejected by the Department of Justice on the grounds that they would have a regressive effect—on the grounds that would violate Section 5 of the Voting Rights Act.

 

And, of course, there had been litigation over the past 20, 30 years challenging the constitutionality of certain aspects of Alabama’s electoral process, voter ID litigation, other aspects of the election system that the Court pointed to as saying there was a history, both longstanding as well as more recent, of voting-related discrimination that the Court found weighed in favor of the plaintiffs.

 

Senate factors invite the Court to look at, is voting racially polarized within the state? That’s already taken into account in the Gingles factor. The Court said, “Yes, there is racial polarization.” The extent to which the state or a political subdivision had used voting procedures or practices in the past that tended to create opportunities for discrimination against the minority group—like large election districts, majority vote requirements, prohibitions against bullet voting—the Court actually pointed to majority vote requirements, other procedures that had been challenged, many of these duplicating some of the analysis under the first factor. In fact, the Court looked at these factors in conjunction with each other in order to rule in the plaintiff’s favor on this factor.

 

The Court, more broadly—moving beyond election law in particular as one of the Senate factors—more broadly considers the extent to which minority group members continue to bear the effects of past discrimination in areas like education, employment, health, which could make it harder for them to participate in the political process. And so, here again, the Court ruled in the plaintiff’s favor, finding severe disparities in the state -- real racial disparities in the state in terms of things like employment opportunities, wealth, things like that.

 

The Court considered the existence of overt or subtle racial appeals in political campaigns, and it ruled again in the plaintiff’s factor somewhat -- excuse me, it ruled in the plaintiff’s favor somewhat in this factor, pointing to three political advertisements—three recent political advertisements—that it found had involved race-based appeals. One of them had been a political advertisement attacking Ilhan Omar and using an image of Colin Kaepernick kneeling as a protest during the National Anthem. And the Court found that those references—that those images—were implicit race-based appeals.

 

And then in addition to that list of factors, there are then other considerations the Court is permitted to take into account of evidence demonstrating that elected officials are unresponsive to the particular needs of the minority group. The Court didn't actually make any findings in either direction on that issue. It found that the record—particularly the preliminary injunction stage—was sufficiently conflicted on that issue, that it didn't make any findings on that. The extent to which the policies being challenged here are based on tenuous reasons that the state doesn’t have a very strong interest in the policies underlying its particular map here, again, the Court didn't rule strongly in favor of either side on that issue, finding that it didn't really need to consider the tenuousness prong.

 

And then finally, the Court considered overall proportionality, which required something of a sensitive analysis because, on the one hand, the Section 2 of the VRA expressly says that nothing in this statute requires proportional representation for members of any particular groups. And yet, on the other hand, the Court was able to point to precedent taking a lack of proportionality into account as a factor that would support a plaintiff’s claim under Section 2. And here, just looking broadly, African Americans comprised approximately a quarter of the state’s population, and yet there was only one of the state’s electoral lists or one of the state’s congressional districts that was majority-minority—one out of seven, fell far short of that roughly one-quarter of the population percentage.

 

And so, even though there isn’t a statutory right to proportional representation, taking proportionality into account as a factor, as something that can shed light on this totality of the circumstances analysis, the Court found that that sort of disproportionate disparity in representation weighed in the plaintiff’s favor. And so, taking into account the totality of those circumstances, after its findings on the Gingles factors, the Court found that there was, in fact, a voting rights violation here—that African American plaintiffs were, in fact, entitled to have a second congressional district drawn that would allow them to elect the candidates of their choice.

 

And so, rather than itself adopting a particular map or forcing the state to adopt a particular map, it effectively remanded to the legislature. It entered a preliminary injunction barring the state from conducting its primary elections pursuant to the map that it had adopted, and it invited the state to adopt a new map consistent with the Court’s order that either would have a second majority-minority district—that would either have a second district comprised of a majority of African American voters—or that would have a substantial nucleus of African American voters along with other voters who generally supported African American-backed candidates, so-called crossover districts, such that between the African American core as well as other voters who were willing to support the same candidates, the African American voters would still get to elect the candidates of their choice. And so, it left that decision to the legislature.

 

The legislature or the Secretary of State as the defendant, as well as the intervener defendants, who were the co-chairs of the legislature’s standing committee on redistricting, took an emergency appeal—so an emergency stay—up to the Supreme Court. One reason you might be asking why they went directly to the Supreme Court -- because this was a three-judge district court panel, there is direct appeal as a right to the US Supreme Court. So these types of cases coming out of three-judge panels are able to be directly appealed to the Supreme Court, skipping over the intermediate Court of Appeals. And so, it was the Supreme Court that was in the position in the first instance to determine whether or not to grant a stay.

 

And in a sharply divided ruling, the Court decided to grant a stay of the preliminary injunction, primarily applying what has come to be called the Purcell Principle, which arises from a case Purcell v. Gonzalez, where the Court said, “As a general matter, federal courts should refrain from enjoining state laws or otherwise changing the rules or procedures governing an election shortly before an election.” And this was a principle that was applied throughout the 2020 election as federal courts were issuing emergency orders as a response to COVID that were suspending certain requirements or changing certain requirements, adopting new rules in the weeks before the election. The Supreme Court, in several cases stayed those orders, applying this Purcell Principle.

 

And the reasons for it, in part, are the notion that if you change the rules of an election shortly before an election, you create the possibility for confusion. You create the possibility for irregularities. It becomes hard to train election officials with all the new rules, with the new procedures. Voters themselves might be deterred from showing up to vote if the rules are changing at the last minute. They don’t know what’s going on. And so, to a certain extent, the Purcell Principle requires something of a sliding scale, where the more extensive the change, the bigger the rule change, the more complicated the rule change, the more administrative adjustments that would have to be made as a result of it, the more retrain that would have to be made a result of it, the longer lead time you would need before an election before a federal court can impose that.

 

And so, here, the three-judge district court panel was ordering new congressional districts. And so, the plaintiffs argued, “Look, the general election for Congress is held in November 2022. Even the primary election itself is being held in May. There are months to go before the election. We are well outside of Purcell Principle territory.” The Court, however, pointed -- the Supreme Court, however, pointed out the district court’s ruling was issued on January 24, 2022. The primary election was held on May 24. Military ballots, overseas ballots have to go out at least 45 days beforehand. So in terms of ballots being distributed, now you’re already talking about a month and a half earlier. Before the ballots can be distributed, obviously, the ballots have to be printed. Before the ballots can even be printed, you have to know who’s going to appear on the ballots.

 

And if you’re changing the lines for congressional districts, you now need to -- number one, candidates who previously had qualified to run a particular district may no longer qualify for that district. The voters comprising that district may well be different now depending on how the district lines are drawn. And so, it’s not just a matter of printing out new ballots, but the districts themselves will likely involve—at least some of the districts—different candidates. Different electorates are going to need to have a new timeframe for candidates to go out and get signatures. People who wouldn't have run under one congressional district scheme or perhaps didn't even -- they had a realistic chance of winning under one congressional scheme now might view themselves as viable candidates.

 

And so, from the Court’s perspective, in applying the Purcell Principle, it’s not just a matter of looking at when election day is or looking at the date of primaries. Given the nature of the change here—because this is a change that impacts, essentially, the entire election in terms of not just the ballots, but who’s eligible to even appear on the ballots, who has even submitted legally sufficient petitions to get on the ballots—the Court found this type of a substantial change isn’t something that can be adopted even a few months before a primary election. And so, the Court found that under the Purcell Principle, the district court’s ruling, even though it was several months ahead of the primary, given everything that had to come before the primary, it’s that lead time that’s the main consideration for the Purcell Principle.

 

And the Court found, by the time the legislature adopted a new set of maps that either passed judicial muster that the plaintiffs were willing to not object to, it ran the risk of interfering with this electoral process too much. It ran the risk of creating too many administrative problems, too much confusion, too much possibility for error, that the Court stayed the order, thereby allowing the primary to continue under the maps that the legislature had adopted and meaning that that legislatively adopted map will stay in effect then until the Supreme Court ultimately rules on the merits of the preliminary injunction appeal and decides whether or not the preliminary injunction should actually enter into effect.

 

And so, one of the objections—one of the concerns—that was raised to this type of approach, is that it allows at least one set of elections—a primary election and some general election—to occur under a set of maps that the three-judge district court has already found violates Section 2 of the Voting Rights Act. And I should add, by the way, because the district court found that there was a Section 2 violation and that that violation was in and of itself sufficient to require the redrafting of the maps, the creation of a new majority-minority district or new crossover district, it did not see the need to go on to address the plaintiff’s constitutional claims. So the district court did not go on to address whether the maps arose from intentional racial discrimination, whether the maps violated the Fourteenth and Fifteenth Amendments or that it simply applied the constitutional avoidance principle. No, it issued a 225-page opinion saying that these maps violated the Voting Rights Act, and so, therefore, there wasn’t a need to address the underlying constitutional issue. And as a result, that issue is not before -- there’s nothing for the Supreme Court to review to that extent on appeal.

 

So the Supreme Court’s recent decision to stay the district court order -- the district court’s application of the Purcell Principle in this context, particularly so many months before the primary election and close to a year before the general election, itself was controversial. And of course, the bigger picture question, the bigger concern, as the Court goes on to adjudicate the merits of the case then is, will the Court use this case as an opportunity to revisit Gingles, to make it more difficult for plaintiffs in the redistricting context to make out a Section 2 violation?

 

Of course, the Supreme Court already dealt with Section 2 in Brnovich, which dealt with vote denial claims, where plaintiffs were challenging rules, processes, procedures of the electoral process that voters had to follow in order to be able to cast a ballot or have their vote counted. And of course, Brnovich narrowed the scope of Section 2 liability, establishing its guideposts that reduced the circumstances under which racially disparate impacts as a result of certain election laws or certain election procedures would give rise to Section 2 claims. The concern is whether Merrill will turn into, essentially, a companion to Brnovich. Whereas Brnovich narrowed the scope of Section 2 liability for vote denial claims about rules and processes and procedures governing the electoral process, this case may similarly narrow the scope of liability for vote dilution claims which challenge the way in which congressional districts or other legislative districts are drawn under Section 2 of the VRA.

 

Even though this is a statutory issue, underlying this issue is the fundamental question of how will the Court interpret the Fourteenth Amendment. How will the Court interpret the Equal Protection Clause? And going back to, certainly, the seminal case for the modern judicial world—going back to Brown v. Board of Education—there are two fundamentally different ways of interpreting the Equal Protection Clause. On the one hand, you can interpret it as an anti-classification measure, that the Equal Protection Clause identifies race as an inherently suspect and pernicious classification, that the government has a long history of using racial classifications for invidious purposes, that race bears no connection whatsoever to anyone’s moral deservedness or doesn’t tell you anything morally important about a person, that race should simply be stricken as a classification. And so, from this perspective, any time race is used as a classification in a federal statute, it would be subject to strict scrutiny and likely be invalidated.

 

And so, if the Court were to approach Section 2 of the VRA from an anti-classification perspective, it would be very skeptical then of the fact that the Court requires states to place great emphasis on race when drawing congressional districts precisely because, under certain circumstances as we’ve discussed—under the Gingles interpretation—it affirmatively requires the creation of majority-minority districts. It requires race be taken into account as one of the most important factors when drawing districts in order to comply with the statute.

 

The other main way of approaching the Fourteenth Amendment is from what’s called an anti-subordination perspective—that from this approach, the main problem with the segregated schools in Brown wasn’t just the fact that they used a racial classification. Right? From an anti-classification perspective, the reason the racial segregation was unconstitutional was because it was expressly based on race. It was expressively based on a suspect classification, and the government should not be classifying, should not be separating people based on an invidious characteristic like race.

 

From an anti-subordination perspective, in contrast, the problem in Brown wasn’t the mere use of race, but rather, it was the use of race in order to perpetuate a racial caste system, in order to perpetuate a system of racial hierarchy or white supremacy—that the reason African American students were segregated in Brown was because they were under the racist laws of the time—the racist system at the time. It was as a way of stigmatizing them. It was a way of saying that they weren’t “good enough” to be able to mix with the white students. And as a result, they were sent to separate schools—less respected schools. It was a way of maintaining this system of racial caste, white supremacy, that traces back to the slavery era and before.

 

And so, from an anti-subordination perspective, the question isn’t does a statute have racial classifications, but rather, does a statute maintain a system of racial hierarchy, of white supremacy? Does it seek to stigmatize members of minority communities? And so, to the extent the Court applies more of an anti-subordination perspective, it would be more comfortable with the Gingles type interpretation of Section 2. It would be more comfortable with a broader race-conscious effects test under Section 2 precisely because the purpose of that statute would be to combat white supremacy, would be to ensure that members of the racial minority community don’t find themselves either all packed into the same district or cracked among numerous districts so that they’re unable to effectively influence the results of elections in any of those districts, but rather are able to be represented within the political process, are able to work through the political process in order to protect their rights, in order to work toward a fair and just society.

 

And so, especially because the Voting Rights Act stems from the enforcement clauses of the Fourteenth and Fifteenth Amendments—Section 5 of the Fourteenth Amendment, Section 2 of the Fifteenth Amendment—because this law is a measure that Congress passed to implement these constitutional restrictions, the way in which the Court interprets those amendments, whether it adopts more of an anti-classification approach or more of an anti-subordination approach is going to directly impact how the Court is going to view Section 2 of the VRA and whether it will be comfortable with the broader Gingles-type approach or would instead try to narrow it somewhat arguably comparable along the lines of what it did in Brnovich.

 

So I will stop there and take a look at the questions. So one question here -- “Can a second district be drawn without racial gerrymandering?” So, yes. Right? I mean, certainly, it would be possible to draw a second district without having -- a second district that winds up being majority-minority without having race be the predominant factor—without it being deliberately drawn based on race. That is not the approach the state took. In fact, there are many permutations of the possible maps in Alabama that are consistent with traditional redistricting principles that don’t, in fact, lead to a second majority-minority district.

 

The plaintiff’s experts, in order to meet their burden under -- or at least what the Court framed as their burden under Section 2 of the VRA, presented maps that were drawn in accordance with traditional redistricting principles or at least consistent with traditional redistricting principles. But in order to get there, in order to generate those maps, they deliberately specified that having a second majority-minority district was going to be their primary consideration until they reached that point, and then they would flesh out the details—they would flesh out the rest of the map with regard to traditional redistricting criteria.

 

Another question here -- “What about Bartlett v. Strickland?” So the US Supreme Court has held that, in order to establish a Section 2 violation, you have to show that it's possible to have a second congressional district drawn where members of a particular racial minority group—African American voters, in this case—would be able to elect the candidates of their choice, that the district has to be reasonably compact, geographically compact, which is one of the main points of disagreement between the state and the plaintiffs here, whether this second district that would be created would, in fact, be sufficiently compact or not.

 

But the Court basically gave the state greater leeway in remedying the Section 2 violation. Right? Given that it was possible to draw a second district comprising a majority of African American voters, the district court ruled, as a remedial matter, one way of fixing this Section 2 violation would be crafting a second majority-minority district. Another way of fixing the Section 2 violation would be by creating a crossover district, where even though African American voters weren’t a majority, given the preferences of other voters in that district, enough white voters, enough voters of other racial groups would be willing to cross over such that the African Americans of that district can elect the candidates of their choice.

 

The Court said if the legislature wants to do that, it is free to adopt that as well. By adopting such a crossover district, that would remedy the Section 2 violation because now there wouldn't be racially polarized voting that’s preventing African American voters from electing their preferred candidates. The African American voters within this crossover district, combined with members of other groups, would be able to elect the candidates of their choice. So even though the possibility of drawing such a district doesn’t give rise to Section 2 liability on its own, the Court was nevertheless willing to treat the creation of such a district as a sufficient remedy for the violation at issue here.

 

One of the questions here is, “What are the implications of this on other potential districting cases or controversies?” The district court opinion itself, I would suggest, is a fairly straightforward application of the Gingles factors. There were a few other narrow legal issues that the Court touched upon. One of them -- the Secretary of State, for example, had argued that the Voting Rights Act doesn’t give rise to a private right of action. In fact, we’ve seen a recent district court ruling out of Arkansas coming to that conclusion. The three-judge district court, pointing to the US Supreme Court’s ruling under Morse—which held that a private right of action existed under Section 10 of the VRA as well as an earlier ruling in Allen holding that a private right of action exists under Section 5 -- the district court says, “Yes, there is enough precedent here establishing that Section 2 has a private right of action. Morse, in particular, assumes that there’s a private right of action under Section 2.” And so, it rejected that defense.

 

The state had also argued that the plaintiffs were focusing too much on Alabama history, that the Secretary of State had argued that basically -- looking to things that had happened in the early 1800s -- excuse me, at the late 1800s, the early 1900s -- that that is basically just too far away—too long in the past—to be relevant to whether or not the current map adopted by the legislature a few weeks ago in 2022, well over a century later, does or doesn’t violate Section 2 of the VRA. The district court rejected that argument, largely on the grounds that it wasn’t basing its analysis solely or even primarily on the distant history, but that it was also able to point to recent political advertisements, recent litigation, recent rejections of preclearance applications before Section 5 had been suspended. And so, it basically said it was using that history as context or foundation and not as the primary basis for its ruling.

 

Of course, the plaintiffs -- excuse me, the Secretary of State’s complaint about the use of distant history echoes the Supreme Court’s reasoning in Shelby County, which said we need to think much more about current and ongoing discrimination rather than applying preclearance requirements under the VRA based primarily on how things were back in the ‘60s or the ‘70s in particular states. And the Secretary of State had also argued that the plaintiff’s own maps were themselves unconstitutional because they unconstitutionally prioritized race. And again, this argument points to that fundamental tension at the heart of the Fourteenth Amendment, which in turn then lies at the heart of Section 2 of the VRA between this anti-classification approach versus anti-subordination approach to equal protection. Right?

 

On the one hand, we have a line of Supreme Court cases adopting a strong anti-classification perspective saying race should not be, cannot be, the overarching, the primary concern when drawing district lines. This goes back to the Supreme Court’s ruling in Shaw v. Reno. On the other hand, we have Section 2 of the VRA as construed and applied in Gingles, which takes more of an anti-subordination perspective, which says under certain circumstances, in order to prevent members of racial minority groups from having their votes diluted, we have to, in fact, take race into account as the primary concern when drawing the congressional district lines. And so, there’s these two competing imperatives, these two competing principles, which in turn stem from different fundamental approaches to the Constitution.

 

In this case, especially being a Section 2 case, the Court said under Gingles, the plaintiffs and their proposed maps took race into account in crafting these potential majority-minority districts to the extent permitted by this line of authority interpreting Section 2 of the VRA. And so, again, when the Supreme Court assesses this case on appeal, it’s going to invariably revisit that tension between anti-classification and anti-subordination and may make it harder for jurisdictions to be able to take race into account, may narrow the circumstances under which majority-minority districts would otherwise be required under the existing Gingles factors.

 

Another issue that the state had raised was, essentially, raising a Purcell Principle-type argument, saying it was just too close to the primary for the Court to enter a preliminary injunction. The three-judge district court had actually rejected that type of argument, saying that the state had had notice at least since 2018 based on the projections about the growth of the African American community in the state, the lessoning percentage of the white community in the state, that a second majority-minority district would be required. During the legislative debates that led up to the enactment of these congressional districts, a black legislature had suggested a map that would have a second majority-minority district. The legislature opted against that. The legislature adopted its map with a single majority-black district.

 

And so, the Court basically said, “Regardless of whether it’s a few months before the election, number one, we think that that’s enough time. But number two, the legislature itself had enough notice that we’re not going to place much weight on its complaints now, that our order to comply with Section 2 is coming too close to the conduct of the primary election itself.” So all of those aspects of its ruling, particularly depending on what the US Supreme Court winds up doing, can have potentially substantial implications for redistricting disputes in other jurisdictions.

 

There is a question here about how to identify racially motivated election tactics, like how to determine whether or not certain types of advertisements or certain types of political messaging is or is not racially motivated. Certainly, one of the examples that Court had alluded to, where one of the candidates claimed was arguing that the advertisements were saying he should be elected to stop -- so that he could go stop the “war on whites.” Right? The Court had no problem finding that that was expressly a racially tinged, outright racial appeal, a direct attempt to invoke racial considerations in voting. And so, the Court itself acknowledged that this is a difficult issue. Certainly, different judges are more or less capacious in what they’re willing to recognize as a racially motivated appeal. Right?

 

Here, certainly one or two of the ads that the Court had looked at were well beyond -- were pretty clear and explicit in terms of the racial appeal. The other one, the Court found, had certainly enough racial overtones and context that it was willing to find it at least weighed somewhat in the plaintiff’s favor. But it certainly didn't purport to be a strong factor in the Court’s analysis. And that’s not something where there’s a robust body of case law clearly delineating what does or doesn’t constitute a racial appeal. Much of it does tend to seem to be at least you-know-it-when-you-see-it. And certainly, once candidates are talking about war on whites, that clearly becomes an appeal to racial considerations.

 

“Could the Court have ordered that the existing 2020 districts to remain in effect for one more election? Would that violate Purcell?” So the problem with the -- so two things. Number one, keeping the past districts in effect -- so the districts that had been used in 2020 that were adopted back in 2010, number one, that wouldn’t improve on the VRA situation at all. That wouldn't alleviate the alleged cracking of the African American community that led the Court to reject the legislature’s map. And number two, if anything, using the 2010 map would be even worse than using the 2020 map precisely because, if you use the preexisting map, it was now malapportioned. Right? The whole reason the legislature had to draw a new map in the first place was because of the substantial population shifts and substantial growth in population that had occurred in the state over the past decade.

 

And so, going back to the maps that had been adopted in 2010 and used in the 2020 election, not only now do you -- based on the district court ruling, not only then would you have the VRA violation, you would also have an Equal Protection one-person, one-vote violation. So there wouldn't really be a reason to use that old map as compared to the one the legislature adopted because, at the very least, the one that the legislature adopted wasn’t malapportioned or didn't have one-person, one-vote violations. The dispute was really just over whether there should be a second majority-minority district.

 

There’s a very long question here. I’m going to see -- “Does the breadth of the question presented in the morning order free the state to make arguments that weren’t presented in the stay application?” I think that that’s a very tricky question, right? So basically, how broad will the case be before the Supreme Court? And I do think the fact that we just got the order today from the Supreme Court framing how it’s going to be approached in this case, I do think that it is at least possible the Court could be setting itself up to deal with broader issues than just what was adjudicated in the context of the stay order.

 

So I think that it is. So in the absence of more questions, thank you very much for listening.

 

Evelyn Hildebrand:  Thanks very much. And on behalf of The Federalist Society, I want to extend our thanks to our excellent speaker this afternoon, Professor Michael Morley, to our audience for sending in your questions and participating. And I would like to remind our audience, if you have any questions or comments, please send them in to [email protected]. Many thanks again to our audience and to our speaker this afternoon. And without any further questions or comments, we’re adjourned. Thank you.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.