https://www.wsj.com/articles/racial-gerrymandering-supreme-court-allen-v-milligan-john-roberts-clarence-thomas-gingles-alabama-7b595b78?mod=opinion_lead_pos1
Chief Justice John Roberts has wisely led the Supreme Court away from the political thicket of partisan gerrymandering, writing in Rucho v. Common Cause that he sees no “judicially discernible and manageable” standards to police it. But with an opportunity to clarify the law on racial gerrymandering, the Chief passed.
This is unfortunate, given the muddled status quo. The upshot of Thursday’s 5-4 split in Allen v. Milligan is to send Alabama back to the drawing board to create a second black-majority U.S. House district. Yet other states have tried that approach, only to be admonished by the Court that their maps were drawn with too much emphasis on race.
Alabama has seven House seats, with a black majority in one. That divides out to 14%. Yet the state’s voting-age population is 26% black. Alabama argued that when it redrew its House map after the 2020 census, it enacted only “race-neutral adjustments for small shifts in population.” But a federal district court ruled that the Voting Rights Act (VRA) requires a second majority-black district, for 29% representation.
Section 2 of the VRA says voting practices must be “equally open” and can’t give racial minorities “less opportunity” to “elect representatives of their choice.” The precedent for vote dilution is Gingles (1986), which set up a multipart test. The minority group must be “sufficiently large and compact” and “politically cohesive.” The “totality of circumstances” must suggest the political process isn’t equally open.
The trick is that Section 2 also explicitly says it creates no right for any group to have its members “elected in numbers equal to their proportion in the population.” Other High Court rulings have called racial gerrymandering “odious,” applying strict scrutiny if it’s a “predominant” factor for mapmakers. Alabama said its critics could draw two black-majority districts “only by starting with a ‘nonnegotiable’ racial target and backfilling with other redistricting criteria.” Sure sounds “predominant.”