Mark Joseph Stern writes:

The Supreme Court’s 5–4 decision in Allen v. Milligan on Thursday, which found that Alabama’s congressional map violates the Voting Rights Act’s ban on racial vote dilution, sends two clear messages. First, a bare majority of the court—Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals—believes that the VRA still plays a meaningful role in maintaining a multiracial democracy (or is willing to defer to Congress’ judgment on the matter). Second, that same majority of the court does not look kindly upon red states’ race to shred decades of precedent in an effort to wipe out the voting power of Black Americans. Roberts’ opinion for the court has a broader meaning that reaches far beyond this case: Red states cannot pressure the court into rewriting the VRA for no reason other than their shameless, brazen desire to elect more white Republicans.

Milligan revolves around Alabama’s current congressional map, which GOP legislators drew after the 2020 census. Black residents make up nearly one-third of the state’s population, but lawmakers gave them a majority in just one of the state’s seven congressional districts. They did so by drawing a single, snaking district that captured most Black communities, then dispersing the remainder of Black voters throughout majority-white districts. The obvious purpose was to ensure that Black Alabamians could only have a real opportunity to elect one representative of their choice.

This tactic is plainly illegal under Section 2 of the VRA, which prohibits voting laws (including redistricting plans) that have a racially discriminatory effect, meaning a disparate impact on Black voters. In January 2022, a three-judge district court struck down the map, finding that it illegally diluted the votes of Black Alabamians. But the Supreme Court swiftly halted that decision on the shadow docket. Its order split 5–4 (with Kavanaugh in that majority), and though Roberts dissented, he objected only to the majority’s use of the shadow docket to overhaul precedent, and was open to narrowing Section 2 in the future. After SCOTUS’ intervention, it seemed inevitable that the conservative supermajority would use Milligan to eviscerate what remains of the Voting Rights Act.

But it didn’t! In fact, it did the opposite, vigorously reaffirming the ongoing importance and validity of this portion of the VRA in the face of ceaseless GOP attacks. Roberts’ opinion for the court on Thursday traced the history of racist voter suppression after the Civil War, leading up to the initial passage of the VRA in 1965. He explained how, in 1980, the Supreme Court held that the law barred only discriminatory intent, not effect—a decision that “produced an avalanche of criticism, both in the media and within the civil rights community.” Roberts wrote that some lawmakers were wary that an “effects test” (which measured impact rather than intent) would require a “quota system” or “racial proportionality” in districting, raising equal protection concerns. And so Congress settled on a bipartisan, “hard-fought compromise,” which amended Section 2 to require that the electoral process be “equally open to participation” by all racial groups.

What’s shocking about Roberts’ history lesson is that, at the time, he was on the front lines of the fight against expanding the VRA to include an effects test. [Continue reading…]