Earlier this month, the Supreme Court handed down a major voting rights decision in the Allen v. Milligan case. In a 5-4 ruling, the Court upheld Section 2 of the Voting Rights Act of 1965 and found that Alabama’s 2022 congressional map likely violated Section 2. This comes as a surprising victory for voting rights and the Thornburg v. Gingles (1986) test after a series of other Supreme Court cases that have narrowed the scope of the Voting Rights Act, including the Brnovich v. DNC case in 2021 and Shelby County v. Holder in 2013. The decision was written by Chief Justice John Roberts and was joined by Justice Brett Kavanaugh along with the liberal justices. In this episode, Jason Torchinsky of Holtzman Vogel and Rick Hasen of UCLA School of Law join host Jeffrey Rosen to break down the Allen decision; discuss why Chief Justice Roberts and Justice Kavanaugh voted with the liberal justices to uphold the Gingles framework; what other conservative justices Thomas, Alito and Gorsuch wrote in dissent; and what this means for redistricting and voting rights in 2024 and beyond.
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This episode was produced by Lana Ulrich, Bill Pollock, Sam Desai, and Samson Mostashari. It was engineered by David Stotz. Research was provided by Lana Ulrich, Sam Desai, Samson Mostashari, Tomas Vallejo, Connor Rust, and Yara Daraiseh.
Participants
Jason Torchinsky is a partner at Holtzman Vogel, specializing in campaign finance and election law. He filed a brief on behalf of the National Republican Redistricting Trust in support of Alabama in this case.
Rick Hasen is Professor of Law and Political Science at the UCLA School of Law. He wrote op-eds about the decision in the New York Times and Slate. He’s the author of Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It, as well as of leading casebooks in election law and remedies.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Allen v. Milligan (June 2023)
- Jason Torchinsky, Amicus Brief on Behalf of the National Republican Redistricting Trust
- John Roberts Throws a Curveball,” NYT (June 8, 2023)
- Thornburg v. Gingles (1986)
- Section 2 of the Voting Rights Act (1965)
Interview Excerpts
On discussing different textual interpretations of the Gingles Test: does causation matter?
Jeffrey Rosen: Jason, … You construe the text to require that race be the cause of a voter's inability to elect representatives of his or her choice. Tell us more about that.
...
Jason Torchinsky: In particular in Alabama and in another, number of other places where there are African Americans, the correlation between Black vote and the Democratic Party vote is very, very high. I mean, in Alabama, I believe it's north of 90 something percent. And so the question is, when an African American can't win a statewide election in Alabama, is it because they're Black? Or it because they're running as a Democrat? And I think that that's some of what, I think, the courts should be trying to untangle in these cases. And if they're not winning because they're a Democrat, I think that's a different question than, "Are they not winning because they're African American?" And again, in particular, in African American community, it can be hard to sort of figure out exactly what's happened.
You know, there was another redistricting case out of Alabama, I think, involving the state judiciary where the court really ... The court in that case, lower court, went through really, the history to decline other Democratic Party overall in Alabama. You know, Alabama used to be a Democratic state in the 1960s. It was all run by Democrats. And 60 years later, it's all run by Republicans. And the court chronicled essentially the decline of the Democratic Party. So, you know, separating race and politics or dealing with the intersection of race and politics is, I think, what's at base here. And I think ... Look, why is, you know ... For example, Marc Elias, who's a, you know, no bones about it, a Democratic Party lawyer, why is he representing people in this case? 'Cause he wants another Democratic district in Alabama. You know, so, I mean, there is a real political overtone to this that is separate, I think, from the race question.
Jeffrey Rosen: Rick, what is the relevance of the correlation between race and politics that Jason mentions in deciding whether or not Gingles test, which Chief Justice Roberts reaffirmed for now, remains a good test of whether or not Black voters have the opportunity to elect representatives of their choice?
Rick Hasen: Well, if you go back Gingles ... And Gingles was the 1986 case that was the first time the Supreme Court construed the revised section 2. You know, Congress fixes or, or revises Section 2 in, in 1982. The Supreme Court interprets in 1986. And the court says that, you know, causation doesn't matter. It doesn't matter Black voters and white voters may prefer different candidates. It just matters that they do. Doesn't matter if it's because they're poor or because they're from parties or whatever. That was the line in Gingles. That was the line that I believe is a plurality and not a majority, and which is why this issue keeps coming up. You know, maybe Milligan maybe Roberts is, is best understood as having adopted that position, that, that causation really doesn't matter. But I agree with Jason. And I've long written that there's a huge artificiality in the court's understanding of these voting cases where we have what political scientists called conjoined polarization. In lots of places in the South, most Black voters vote for Democrats. Most white voters, a slightly smaller majority, but most white voters vote for Republicans.
Final thoughts on the significance on the Milligan decision for the future.
Jeffrey Rosen: Rick, what will the significance of Milligan be on districting in practice, moving forward?
Rick Hasen: So, I think this remains to be seen. I see this as an opinion that mostly maintains the status quo, that sends a message to lower courts that you should keep applying the Gingles as though it has teeth and it matters. I don't think it was meant to make any new law on the statutory question of what the Gingles standard is, which is kind of weird because Chief Justice Roberts, when he dissented from the stay that was put in place I guess now a couple of years ago in this case, he said you know, "There's a lot of nuances to Gingles. We should revisit those." And then he doesn't really revisit those. So, they're still hanging out there. But, you know, I think it maintains the status quo. The real question ... And I know Jason is gonna be fighting for Louisiana to not draw that district. And we're gonna see fights in Georgia and Texas, and elsewhere. The real question is, you know, applying Gingles as it's commonly understood, what is that going to mean?
You know, there have been some analyses looking at Congress, saying that as many as five seats could shift from being white Republican districts to likely Black Democratic districts. I don't know. I mean, these cases ... I think one thing Jason and I agree on is these cases are really fact intensive. And you can't just say you know, because there's a large of minority voters, that they're necessarily gonna win their Section 2 claims. Section 2 claims are hard to bring. They're hard to win. They're very expensive. That's one of the reasons why many of us didn't want to see Section 5 go away in Shelby County. So, I think it's really hard to tell. I think the corollary question is, "What would it have meant if Justice Alito had written the majority opinion or Justice Thomas?"
Justice Thomas wrote it, "Section 2 goes away. It's unconstitutional." But what about Justice Alito? We haven't talked about Alito at all. Alito says, you know "Alabama kind of came up with this crazy argument that you should read Section 2 race neutrally." Well, that's not right. And then he tweaks the Gingles, first Gingles standard in a way that would've meant fewer successful Section 2 cases. And so the corollary question is, "What would've it have meant for Alito to have written the majority opinion?" It would've meant that it would be harder to have minority representation in Congress, in state legislatures, in city halls, on county boards. And so this maintains the status quo. And each case is gonna fought on its own facts and merits.
Jeffrey Rosen: Jason, what do you think the practical effect of the decision will be? Do you agree with estimates that it could shift as many as five congressional seats or not and, and maybe a beat on Justice Alito's alternative? Was that convincing narrowing of, of Gingles to you, or not?
Jason Torchinsky: So, I don't agree that it's gonna result in the shift of five seats. You know, I think we'll see what the court decides it's gonna do with the Louisiana case. That may give us more substance frankly than, than Milligan did about sort of what the current court's view is 'cause I think it raises some different questions. And I think the question is, "How crazy does a district have to look for it be required?" And I think that's the tension between the 14th Amendment and Section 2. So, I think Milligan is gonna lead to substantially more litigation. I think Justice Alito ... Right? And Justice Alito's in, really, a unique position on the court. I think he's the, you know, next to Justice O'Connor, probably the one who has the most personal connection to the whole mapping process. And Jeffrey, I think I said this before on some of your programs.
Justice Alito's father was the director of legislative services for the New Jersey legislature when the Karcher versus Daggett case went through in the early 1980s. And there's actually a footnote in there that cites to an affidavit from Sam Alito Senior. And Justice Alito has talked about sort of watching his dad draw maps at the dining room table. Justice O'Connor drew maps when she was in the state legislature. So, I think they are probably the two justices who've had the most direct mapping experience. And if you listen to Alito during the argument, he sort of says, "Well, what are we trying to tell the legislators here? What guidance are we giving them? What is a legislator who has vote on one of these supposed to take away from this?" So, I think Alito was looking for more clearer lines to give to legislators because I think he's got a different perspective on it. And so I think it'll be interesting to see if his view essentially emerges out of this. You know can he cobble together five out of his six for some more clear instructions? I'm kind of hoping that he does 'cause frankly, advising legislators these days is really tough. And that's where I'm kind of hoping this, this will end up going. But I do think there's gonna be a lot more litigation leading up to it.
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