Merrill v. Milligan

LII note: The U.S. Supreme Court has now decided Merrill v. Milligan.


Does Alabama’s 2021 congressional redistricting map violate Section 2 of the Voting Rights Act?

Oral argument: 
October 4, 2022

This case asks the Supreme Court to interpret Section 2 of the Voting Rights Act (“VRA”), which prohibits discriminatory voting practices. Petitioner Alabama Secretary of State John Merrill claims Alabama’s recently redrawn congressional district map, which results in one majority-minority district, does not violate the VRA because it was drawn using race-neutral guidelines. Respondent Evan Milligan counters that the map violates the VRA because its effect is to concentrate Black voters into one district, undermining their voting power. This case has important ramifications for future redistricting efforts and for claims of vote dilution under the VRA.

Questions as Framed for the Court by the Parties 

Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.


Alabama has seven seats in the United States House of Representatives. Milligan v. Merrill at 2–3. Following the 2020 census, in May of 2021, the Alabama Legislature and Committee on Reapportionment (the “Committee”) began redrawing its congressional districts, known as “redistricting,” to account for population changes since the last census. Id. at 30. The final congressional district map was drawn by cartographer Randy Hinaman, who had prepared previous maps for Alabama. Id. at 29, 32. The Alabama Legislature passed the redistricting plan (the “Plan”), and the Governor signed the Plan into law in November 2021. Id. at 32–33. The Plan had one majority-minority district, consistent with previous congressional maps in Alabama. Id. at 2–3.

District 7 is the majority-Black district. Id. The district has elected a Black Democrat to the House in each election since 1992. Id. at 28–29. Hinaman testified that in preparing the Plan, he wanted to preserve the previous maps and “‘turned race on’ only at the end of the process” to ensure compliance with Section 2 of the Voting Rights Act (“VRA”). Id. at 32. Hinaman also testified that race was a “major factor” when he drafted his first Alabama map in 1992. Id.

After the Plan was approved, a group of Black registered voters and other interested organizations (“Milligan”) sued Alabama Secretary of State John Merrill and the co-chairs of the Committee (“Merrill”). Id. at 12–13. Milligan made three allegations: (1) that the Plan dilutes the power of Black voters in violation of Section 2 of the VRA, (2) that it is unconstitutional racial gerrymandering, and (3) that the legislature intentionally discriminated based on race when making the Plan. Id. at 13. Section 2 of the VRA prohibits the drawing of districts in a way that “provides ‘less opportunity’ for racial minorities ‘to elect representatives of their choice.’” Id. at 24–25. Milligan alleges that this gerrymandering results in Congressional District 7 being “packed” with Black voters, so that the Black vote is “crack[ed]” amongst the remaining districts, thus diluting the influence of Black voters in the remaining districts. Id. at 36–37.

Milligan sought a declaration that the Plan violates the VRA and also sought preliminary injunctions barring Alabama from holding an election under the Plan and requiring Alabama to either use a congressional district map that includes two districts that are majority-Black or otherwise give Black voters an opportunity to elect their preferred candidates. Id. at 2–3. Milligan proposed his own map he contends is in line with the VRA and includes two majority-minority districts. Id. at 39.

Around the same time, a similar group of Alabama citizens brought a suit like Milligan’s but limited their challenge to the VRA claim. Id. at 11. These Caster plaintiffs also requested a preliminary injunction to prevent elections from occurring under the present Plan. Caster v. Merrill at 2.

The United States District Court for the Northern District of Alabama granted the preliminary injunctions for both sets of plaintiffs. Id. at 4–5. The court found that the plaintiffs were “substantially likely to establish that the Plan violates Section 2 of the Voting Rights Act,” and gave the legislature 14 days to enact a remedial plan. Id. at 5–6, Exhibit A.

Merrill appealed to the United States Supreme Court, which granted a stay on February 7, 2022. Merrill v. Milligan (mem) at 1. This case is joined with Merrill v. Caster.



Merrill contends that Milligan has not met the first of three preconditions to a vote dilution claim under Section 2 of the Voting Rights Act (“VRA”). Brief for Appellants/Petitioners, John H. Merrill, et al. at 47–49. Merrill observes that the Court’s decision in Thornburg v. Gingles requires plaintiffs to prove that a minority population is “sufficiently large and compact” that it could make up a majority of eligible voters in a “reasonably configured district.” Id. at 47. Merrill argues that Milligan cannot use his illustrative maps to meet this requirement because those maps were drawn with race as the primary consideration. Id. at 49–50. Merrill notes that, when Milligan’s cartographers simulated maps without taking race into consideration, they did not generate a single map that produced two majority-minority districts. Id. at 55. Relying on Shaw v. Hunt, Merrill asserts that a state may not use race as the primary factor in its map drawing, even to guard against a VRA violation. Id. at 49. Merrill maintains that, because states may not use race as a primary factor, plaintiffs attempting to satisfy the first Gingles precondition likewise may not rely on a race-guided map. Id. at 48–49. Accordingly, Merrill concludes that Milligan’s illustrative maps are not “reasonably configured” and thus fail to satisfy Gingles’ first requirement. Id. at 49.

Milligan counters that his illustrative maps are sufficient to satisfy the first Gingles requirement because the limitations on the use of race in map drawing, derived from the Fourteenth Amendment’s Equal Protection Clause, apply only to state actors, not private parties. Brief for Milligan Appellees, Evan Milligan, et al. at 31, 44. Milligan notes that the Court’s decision in Bartlett v. Strickland, which requires Section 2 vote dilution plaintiffs to submit plans resulting in an additional majority-minority district, effectively requires race-consciousness in map drawing. Id. at 43. Furthermore, Milligan contends that his illustrative maps are “reasonably configured” because they meet all the other traditional districting criteria: they are contiguous, they are at least as compact as Alabama’s map, and they better respect communities of interest. Id. at 31–35. Milligan also disputes Merrill’s reliance on the simulations, noting that Merrill focused on an outdated simulation and ignored a more recent simulation that produced many plans with two majority-minority districts. Id. at 48–50.


Merrill argues that Milligan has not shown a Section 2 violation because he has not demonstrated that Alabama’s districting plan results in political processes that are “not equally open” to Black voters. Brief for Appellants at 53. Merrill asserts that a practice results in “not equally open” political processes only when racial discrimination is the sole explanation for the practice. Id. at 44. Merrill contends that Alabama did not draw its map for racial purposes, but according to traditional criteria such as avoiding significant changes from previous maps. Id. at 53–54. Merrill notes that Alabama’s cartographer could not see racial demographic data while drawing the map, and thus could not have considered race. Id. at 54.

Alternatively, Merrill argues that a single-member district system, where each district elects one representative, can never violate Section 2. Brief for Appellants at 50. Merrill notes that Section 2 applies only to a “voting qualification,” a “prerequisite to voting,” or a “standard, practice, or procedure.” Id. Merrill maintains that single-member districts fall outside these categories. Id. at 51. Further, Merrill contends that single-member districts are inherently equally open because they do not prevent the casting of any votes. Id. at 52.

Merrill also argues that, contrary to Milligan’s position, stare decisis is inapplicable in this case because the Court has considered challenges to single-member districts under Section 2, but it has never found one violative of Section 2. Reply Brief for Appellants/Petitioners, John H. Merrill, et al. at 24. Merrill argues that even if stare decisis is implicated, the Court’s precedents created an unpredictable and difficult-to-apply standard that should be overruled. Brief for Appellants at 52.

Milligan counters that Congress amended the VRA in 1982 and that the amendments require courts to look at a practice’s effects, not only the intent with which it was adopted. Brief for Milligan Appellees at 41. Milligan contends that this inquiry is inconsistent with a blanket rule that maps drawn for race-neutral reasons comply with Section 2. Id. Milligan observes that Congress rejected an intent-based test when it adopted the 1982 amendments, effectively overturning the intent-based test the Court created in City of Mobile v. Bolden. Id; Brief for Caster Respondents, Marcus Caster, et al. at 42. Milligan maintains that the Section 2 totality of the circumstances analysis should be guided by a list of factors—focusing on historical discrimination in voting and other contexts—from a Senate Report accompanying the 1982 amendments. Brief for Milligan Appellees at 28. Milligan asserts that the district court properly relied on these factors in finding that Alabama’s political process is not equally open to Black voters. Id. at 37, 39–40.

Milligan also argues that single-member districts are a “standard, practice, or procedure” and thus fall under Section 2. Brief for Milligan Appellees at 54–56. Milligan claims that Congress included language from the Court's vote dilution cases in Section 2, indicating that Congress intended the VRA to cover vote dilution. Id. at 54. Milligan contends that, even if single-member voting districts do not prevent anyone from casting their ballot, they nonetheless can “abridge” the right to vote by preventing minorities from electing their candidates of choice. Id. at 54–55.

Finally, Milligan asserts that the Court should continue to apply Section 2 to single-member districts under the doctrine of stare decisis because the Court has previously applied Section 2 to single-member districts. Id. at 41. Stare decisis, Milligan notes, is especially potent in cases involving statutory interpretation because Congress retains the power to override a mistaken interpretation. Id. at 41–42.


Merrill contends that the Court should reject Milligan’s interpretation of Section 2 because that interpretation would render the VRA unconstitutional under the Equal Protection Clause. Brief for Appellants/Petitioners at 71. Merrill maintains that Milligan’s interpretation effectively requires states to use racial classifications in districting. Id. at 78. Merrill notes that racial classifications must survive strict scrutiny, which requires that the classifications be narrowly tailored to serve a compelling government interest. Id. at 9. Merrill contends that remedying past discrimination is only a compelling interest if there is a particularized, identifiable instance of discrimination to be remedied, as opposed to generalized societal discrimination. Id. at 76. Since the VRA covers the latter type of discrimination, Merrill asserts that compliance with the VRA cannot justify racial classifications. Id. at 76–77. Merrill posits that, consistent with equal protection, Section 2 can force states to disregard race in drawing their districts but cannot force them to consider race. Id. at 75.

Finally, Merrill argues that Milligan’s interpretation of Section 2 would place it beyond Congress’ powers under the Fifteenth Amendment. Id. at 71. Merrill posits that Congress can only carry out the Amendment’s prohibition on race-based abridgements of the right to vote. Id. at 72. Merrill asserts that, consistent with the Court’s interpretation of the Amendment, Congress’ efforts to enforce the Amendment’s protections can only reach cases that involve discriminatory intent. Id. at 73–75.

Milligan counters that he is proposing a race-conscious map solely to satisfy Gingles, not to insist that Alabama adopt such a map. Brief for Milligan Appellees at 44. Thus, Milligan argues that the Equal Protection Clause does not apply because there is no state action. Id. Alternatively, Milligan posits that his maps survive strict scrutiny. Id. at 51. Milligan maintains that compliance with the VRA is a compelling government interest, and that a state may implement a race-conscious map when there is “good reason” to believe doing so is necessary to avoid a VRA violation. Id. at 51–52. Milligan notes that the Gingles preconditions are satisfied and that the district court found a Section 2 violation; therefore, there is “good reason” to believe that race-conscious districting is necessary in this situation. Id. at 52.

Milligan next counters that Congress’ power under the Fifteenth Amendment includes both prohibiting and remedying violations. Id. at 56. Milligan argues that Congress can act to remedy violations of the Fifteenth Amendment when it has “evidence of a pattern of constitutional violations,” as it did when it passed the VRA. Id. Additionally, Milligan notes that Congress can take prophylactic measures to protect Fifteenth Amendment rights, which can include banning practices that do not themselves violate the Fifteenth Amendment, so long as the measures are “a rational means of effectuating the Amendment.” Id. at 56–57; Brief for Caster Respondents at 58.



United States Representatives from Alabama (“Alabama Representatives”), in support of Merrill, assert that states should prioritize neutral factors in redistricting, and that Milligan’s map impermissibly focuses on racial proportionality. Brief of Amici Curiae United States Representatives from Alabama, in Support of Appellants/Petitioners at 8. Instead of racial proportionality, Alabama Representatives posit that legislatures should prioritize core retention, which requires districts to remain substantially unchanged between elections. Id. at 8, 11–12. Alabama Representatives argue that core retention accounts for important state interests and best serves the purpose of representative government: the formation of long-standing relationships between constituents and their representatives. Id. at 11. Alabama Representatives assert that, unlike consideration of racial proportionality, core retention is consistent with the ideals of representative democracy and increases voter engagement. Id. Alabama Representatives point to Mobile and Baldwin counties, two coastal counties in the same district, that would be divided under Milligan’s map to join the “Black Belt” and form the second majority-Black district. Id.; Brief for Appellants at 9–12. Alabama Representatives posit that these counties’ shared history and culture indicate they should be kept together to better serve their interests and promote democratic accountability. Id. at 12.

Alabama Historians (“Historians”), in support of Milligan, counter that Milligan’s map does not seek to achieve racial proportionality but serves the permissible purpose of “maintaining ‘communities of interest’ and traditional boundaries.” Brief of Amici Curiae Alabama Historians, in Support of Appellee-Respondents at 2. Historians contend that the proposed second majority-Black district adheres to these traditional standards. Id. at 31. The Historians assert that the Black Belt region has a shared history of slavery, tenant farming, and limited access to healthcare and educational resources. Id. at 11–13. Accordingly, the Historians maintain that Milligan’s map recognizes the commonalities between the Black Belt and coastal communities like Mobile County. Id. at 25. United States Representatives from several states (“United States Representatives”), also in support of Milligan, argue that majority-minority districts do not promote segregation, but rather promote “cross-racial” and bipartisan communication. Brief of of Amici Curiae Representative Terri Sewell, et al., in Support of Appellees and Respondents at 10. United States Representatives posit that, in their experience, these districts can foster important conversation, especially regarding race. Id. at 11–12. Additionally, United States Representatives assert that “disrupting ‘core retention’” will not result in reduced voter engagement because research suggests that Black voters are equally as likely to vote after redistricting if there is an incumbent Black representative on the ballot. Id. at 19, n. 24.


The Republican National Committee (the “RNC”), in support of Merrill, argues that it is not the purpose of the VRA to allow gerrymandering, and that the VRA should not be read to benefit one political party over another. Brief of Amicus Curiae The Republican National Committee, in Support of Appellants/Petitioners at 6–7. The RNC further asserts that Milligan’s interpretation of Section 2 is incompatible with the original purpose of the VRA: ensuring an equal opportunity to vote for all. Id. at 6. Additionally, the RNC contends that the VRA is not meant to achieve mandatory racial proportionality in the legislature. Id. at 8. The RNC asserts that Milligan is using race to ensure that the Democratic Party wins more seats in Congress. Id. at 4. The Project on Fair Representation, also in support of Merrill, argues that Milligan’s interpretation results in “segregating” citizens into various districts based on race. Brief of Amicus Curiae The Project on Fair Representation, in Support of Appellants/Petitioners at 13, 16. The Project on Fair Representation posits that looking to race when making laws is the very action the Equal Protection Clause seeks to prohibit. Id.

Republican Former Governors (“Former Governors”), in support of Milligan, similarly deride partisan gerrymandering and express support for “fair and effective representation.” Brief of Amici Curiae Republican Former Governors, in Support of Appellees and Respondents at 4–5. The Former Governors assert that Section 2 of the VRA is meant to protect against racial discrimination in voting, but that redistricting can also entrench power for one political party over another. Id. at 5. The Former Governors contend that redistricting can have the same disenfranchising effect for racial minorities, especially when different racial groups prefer different candidates. Id. at 6. The Former Governors emphasize that, like traditional gerrymandering of congressional districts to entrench political power, racial vote dilution and racial gerrymandering are similarly undemocratic. Id. at 5–6. The Former Governors argue that vote dilution erodes our democracy because candidates can ignore a minority group’s interests without threatening their electoral chances. Id.



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