League of Women Voters of Alachua County

Over the last two decades, the Supreme Court of the United States (SCOTUS) has chipped away at the voting rights of African Americans that had been enshrined in the Voting Rights Act (VRA). One case at a time, key protections in the law have been overturned and eroded so only the core, contained in Section 2, remain. The law is now often referred to as Section 2.

The decision in February 2022 to delay the Allen v. Milligan Alabama redistricting case until after the election was seen by voting rights advocates as a prelude to eliminating voting equity. It was a welcome surprise, therefore, when on June 8, SCOTUS released a ruling which protected the rights of African American voters. It ruled that the congressional map drawn by the Alabama legislature violated Section 2. They ordered the State to redraw the map to include an additional majority-minority district* which must be completed before the 2024 election.

The Voting Rights Act was signed in 1965 to facilitate enforcement of the voting rights guaranteed to African Americans by the Fourteenth and Fifteenth Amendments. After it was signed, Congress amended it several times to clarify and strengthen the protection of voting rights. In addition to protecting the rights of individual voters, the law prohibits drawing electoral districts that dilute the voting power of African Americans. A key clarification was that lawsuits did not need to prove legislative intent to discriminate. The plaintiff only has to show that the “totality of the circumstances” reduce the opportunity of African Americans to participate in the political process. These circumstances could include factors such as a history of discrimination in voting and disparities in education, employment, and health. In 1986, the Court clarified the three criteria required to demonstrate non-compliance with the VRA. Named after one of the litigants in the case in which the criteria were established, they are now referred to as the “Gingles framework”. These criteria are: 1) the affected minority group is sufficiently large to elect a representative of its choice; 2) the minority group is politically cohesive; and 3) the white majority vote sufficiently as a bloc to usually defeat the minority group’s preferred candidates. (1)

Chief Justice Roberts wrote the majority opinion in the Allen v. Milligen case. (2) It demonstrated robust support for protections described in Section 2 and reiterated the conditions SCOTUS uses to make decisions. He described the “race-neutral benchmark” proposed by the State, as inconsistent with the VRA’s requirement that courts look at the entirety of the circumstances. He emphasized the decision was based on the Gingles framework “that has been the baseline of our…. jurisprudence for nearly forty years.” Roberts further stated the “exacting requirements” of (the VRA) “limit judicial intervention to ‘those instances of intensive racial politics’ where the ‘excessive role [of race] in the electoral process … den[ies] minority voters equal opportunity to participate'”. He also noted that the VRA does not require the plaintiffs prove Legislative intent to discriminate. (3)

This ruling has invigorated voting rights advocates. The LWVFL posted “…The Supreme Court has affirmed the crucial role of… the Voting Rights Act in ensuring that states cannot dilute the political power of Black communities … and that Black voters must have the opportunity to elect the leaders of their choice”. (4) The ruling has generated speculation that district maps in states currently in litigation may need to be redrawn. (5) As of June 12, there were 32 Section 2 lawsuits in 10 states. (6)

Florida is currently embroiled in litigation regarding the congressional map which was drawn by the Governor in 2022. The DeSantis map, passed by the legislature decreased the number of minority access districts from four to two. The LWVFL and other advocates filed a lawsuit alleging the DeSantis’ map diminishes the ability of Black Floridians to elect candidates of their choice. It was immediately countered by the State and resulted in multiple iterations which left the DeSantis map in place for the 2022 election. The trial is scheduled to begin in August.

In spite of the recent verdict, it seems unlikely that DeSantis will be deterred from his quest to eliminate the voting rights of African Americans. He continues to insist that the equal protection clause of the Fourteenth Amendment requires a “race neutral” approach to drawing districts.

The recent ruling in Allen v. Milligan demonstrates SCOTUS continues to support the Voting Rights Act. Chief Justice Roberts clearly lays out the conditions and criteria SCOTUS will be using to decide upcoming cases. Given the circumstances existing in Florida, it seems unlikely the Governor’s map will prevail.

1. Roberts, J. (2023, June 8). Allen, Alabama Secretary of State, et al., v. Milligan et al. Appeal from the United States District Court for the Northern District of Alabama. Supreme Court of the United States Syllabus. https://www.democracydocket.com/wp-content/uploads/2022/07/21-1086_1co6.pdf 
2. Election Law at Ohio State and SCOTUSblog. (2020). Section 2 of the Voting Rights Act: Vote Dilution and Vote Deprivation. 2020 Election Litigation Tracker. https://www.scotusblog.com/election-law-explainers/section-2-of-the-voti...
3. Howe, A. (2023, June 8). Supreme Court Upholds Section 2 of Voting Rights Act. SCOTUSblog. https://www.scotusblog.com/2023/06/supreme-court-upholds-section-2-of-vo... 
4. LWVFL (2023, June 9). League of Women Voters of Florida Statement on Allen v. Milligan & Florida Redistricting Lawsuit. Press Release. https://lwvfl.org/league-of-women-voters-of-florida-statement-on-allen-v...
5. Thompson, M. (2023, June 13). Voting Maps Throughout the Deep South May Be Redrawn After Surprise Supreme Court Ruling. ProPublica. https://www.propublica.org/article/scotus-voting-rights-act-alabama-redi...
6. Greenberg, M. and Seltzer, R. (2023, June 8, updated 2023, June 12). How the U.S. Supreme Court’s Decision in Allen v. Milligan Will Impact Ongoing Redistricting Litigation. Democracy Docket. https://www.democracydocket.com/analysis/how-the-u-s-supreme-courts-deci...