Allen v. Milligan
Whether Alabama's 2021 congressional redistricting map violated Section 2 of the Voting Rights Act by diluting Black voters' electoral power, and whether the longstanding Gingles framework for evaluating such vote-dilution claims should be fundamentally revised or replaced.
The Decision
5-4 decision · Opinion by John Roberts · 2023
Majority Opinion— John Robertsconcurring ↓dissent ↓
In a 5–4 decision authored by Chief Justice John Roberts, the Supreme Court affirmed the district court's ruling and held that Alabama's congressional map likely violated Section 2 of the Voting Rights Act. The Court declined Alabama's invitation to overhaul or replace the Gingles framework, finding it remained a sound and workable method for evaluating vote-dilution claims under Section 2.
The majority systematically rejected Alabama's three main arguments. First, the Court refused to adopt the proposed 'race-neutral benchmark' test. Chief Justice Roberts explained that the first Gingles precondition asks whether a minority group is sufficiently large and geographically compact to constitute a majority in a reasonably configured district — a question that inherently requires considering the geographic distribution of minority voters. Requiring race-blind computer simulations as the sole benchmark would fundamentally alter the nature of Section 2 claims in a way Congress never intended. The Court noted that awareness of race in drawing an illustrative map is not the same as racial predominance: a map can take race into account while still being primarily guided by traditional redistricting principles.
Second, the Court rejected the argument that plaintiffs' illustrative maps were unconstitutional racial gerrymanders. Roberts explained that there is no conflict between Section 2 and the Equal Protection Clause in this context. Under the Gingles framework, an illustrative map must be 'reasonably configured' — meaning it must comply with traditional redistricting criteria. When a mapmaker is aware of race but draws a district that is compact, respects political subdivisions, and preserves communities of interest, race has not 'predominated' in a way that triggers strict scrutiny. The majority emphasized that the district court carefully evaluated the illustrative maps and found they were reasonable, not race-driven gerrymanders.
Third, the Court rejected the proportionality argument, noting that requiring two majority-Black districts out of seven does not amount to a proportionality mandate. The Court emphasized that Section 2 has never been interpreted to guarantee proportional representation — it simply requires that a state's redistricting plan not result in minority voters having less opportunity than other members of the electorate to participate in the political process. In this case, the evidence showed Black Alabamians were denied a fair opportunity, and a reasonable remedy existed.
The majority concluded by reaffirming that the Gingles framework, while imperfect, has been applied successfully by courts across the country for nearly four decades, that Congress has repeatedly endorsed it, and that there was no compelling reason to abandon it. The district court's careful, fact-intensive application of that framework was affirmed in full.
Concurring Opinions
Justice Brett Kavanaugh wrote a concurrence joining the majority's conclusion but noting that he believed the Gingles framework, as currently applied, was consistent with Section 2's text and precedent, while reserving the possibility that future cases might require reconsideration. Justice Ketanji Brown Jackson wrote separately to address the relationship between the Equal Protection Clause and race-conscious redistricting, arguing that the Fourteenth Amendment was originally designed to ensure racial equality and should not be read to prohibit the race-consciousness that Section 2 lawfully requires.
Dissenting Opinions
Clarence Thomasjoined by Neil Gorsuch, Amy Coney Barrett (in part), Samuel Alito (in part)
Justice Thomas argued that the Court's interpretation of Section 2 has gone fundamentally astray since Gingles, transforming the statute from a prohibition on intentional discrimination into a tool that effectively mandates race-based redistricting. He contended that the Gingles framework has no basis in the text of Section 2, is unworkable in practice, and compels the kind of racial sorting that the Constitution forbids.
- Section 2 of the Voting Rights Act, properly interpreted, prohibits only intentional discrimination in voting — the use of practices that are designed to deny minority voters equal access — and does not authorize courts to mandate particular racial outcomes in redistricting.
- The Gingles framework forces states to engage in race-based redistricting to avoid liability, which is itself a form of racial classification subject to strict scrutiny under the Equal Protection Clause, creating an irreconcilable tension between Section 2 as interpreted and the Fourteenth Amendment.
- The majority's distinction between racial 'awareness' and racial 'predominance' in drawing illustrative maps is illusory; the plaintiffs' mapmakers openly admitted that they deliberately targeted racial demographics to create a second majority-Black district, which is racial gerrymandering by any honest definition.
Samuel Alitojoined by Neil Gorsuch
Justice Alito argued that even if the Gingles framework is retained, the first precondition must be updated to incorporate a race-neutral benchmark comparison. He contended that without such a benchmark, Section 2 effectively requires proportional racial representation in redistricting — the very result the statute expressly disclaims.
- The proper way to evaluate the first Gingles precondition is to ask whether a race-neutral mapmaking process would naturally produce the kind of majority-minority district the plaintiffs seek; if race-blind maps rarely or never produce such a district, then the challenged map is not causing the alleged harm.
- Under the majority's approach, plaintiffs can satisfy the first Gingles precondition simply by drawing race-conscious illustrative maps, which inevitably tilts the analysis toward requiring race-based redistricting rather than diagnosing genuine vote dilution.
- The majority's refusal to adopt a race-neutral benchmark makes Section 2 litigation an unprincipled exercise that will continue to demand that states sort citizens by race when drawing district lines.
Background & Facts
After the 2020 census, Alabama's Republican-controlled state legislature redrew its seven congressional districts. Black Alabamians make up roughly 27 percent of the state's population, yet the new map contained only one majority-Black district — District 7, centered on Birmingham and extending through the rural Black Belt region. The remaining six districts each had Black populations well below a majority, effectively preventing Black voters from electing their preferred candidates in more than one district.
Two groups of plaintiffs filed separate lawsuits that were consolidated. One group was led by Evan Milligan, executive director of the advocacy organization Alabama Forward; the other was led by Marcus Caster and other individual voters. Both sets of plaintiffs argued that the legislature had packed Black voters into a single district and cracked the remaining Black communities across multiple districts, violating Section 2 of the Voting Rights Act of 1965. They presented multiple illustrative maps showing that a second congressional district with a Black voting-age majority — or something close to it — could reasonably be drawn while respecting traditional redistricting principles like compactness, contiguity, and preserving communities of interest.
A unanimous three-judge federal district court panel — composed of two judges appointed by President Trump and one appointed by President Clinton — agreed with the plaintiffs. The panel found that all three preconditions established by the Supreme Court's landmark 1986 decision in Thornburg v. Gingles were satisfied: (1) Black Alabamians were sufficiently large and geographically compact to form a majority in a second district; (2) Black voters were politically cohesive; and (3) white voters voted as a bloc in a way that usually defeated Black-preferred candidates. The court issued a preliminary injunction ordering the legislature to redraw the map.
Alabama appealed directly to the Supreme Court. In February 2022, the Court issued a surprising 5–4 stay of the district court's order, allowing the existing map to remain in effect for the 2022 elections. Many observers expected that the Court might use the case to weaken or overturn the Gingles framework. The case — originally styled Merrill v. Milligan — was rebranded Allen v. Milligan after Wes Allen succeeded John Merrill as Alabama's Secretary of State. The Supreme Court heard oral arguments in October 2022 and issued its decision in June 2023.
The stakes were enormous. If the Court had accepted Alabama's arguments, it would have effectively gutted Section 2's protections against racial vote dilution in redistricting, making it far more difficult for minority voters across the country to challenge maps that diminish their electoral influence.
The Arguments
Alabama argued that the Gingles framework for Section 2 vote-dilution claims was outdated and needed fundamental revision. In particular, the state contended that requiring race-conscious redistricting to remedy alleged violations was itself an unconstitutional racial classification, and that any benchmark map used to evaluate a claim should be race-neutral.
- The first Gingles precondition should be revised to require a 'race-neutral benchmark' — a comparison between the challenged map and computer-generated maps drawn without any consideration of race — rather than allowing plaintiffs to present race-conscious illustrative maps showing what a fairer district could look like.
- The plaintiffs' illustrative maps were effectively racial gerrymanders because the mapmakers admitted using race as a predominant factor in drawing the second majority-Black district, which would violate the Equal Protection Clause under the Court's racial gerrymandering precedents.
- Requiring Alabama to draw a second majority-Black district when Black residents constitute only 27 percent of the population would amount to an impermissible proportionality mandate, and Section 2 explicitly states that nothing in the law establishes a right to proportional representation.
The plaintiffs argued that Alabama's congressional map diluted Black voting power in violation of Section 2 of the Voting Rights Act, and that the well-established Gingles framework — which had been the law for nearly four decades — correctly identified this violation. They contended that the district court properly applied the existing legal standard.
- Multiple independently drawn illustrative maps demonstrated that a second reasonably compact majority-Black district could be created while respecting traditional redistricting criteria like compactness, contiguity, and respect for county boundaries — satisfying the first Gingles precondition.
- Overwhelming evidence showed that Black voters in Alabama are politically cohesive and that white voters consistently vote as a bloc to defeat Black-preferred candidates — satisfying the second and third Gingles preconditions.
- The Gingles framework has been consistently applied by courts for decades, has proven workable, and Congress ratified this interpretation when it amended Section 2 in 1982; Alabama's proposed 'race-neutral benchmark' test has no basis in the statute's text or the Court's precedent.