Creature of Infernal Origin: Allen v. Milligan and Racial Gerrymandering

Katherine Manz

Edited by Maya Perez, Mac Kang, Sahith Mochalra, and Jia Lin

The term ‘gerrymandering’ originated in 1812 under Massachusetts Governor Elbridge Gerry, a combination of his last name and the ‘salamander’ shape of a Republican-redrawn state senate district. While Gerry lost the governorship that year (partially due to his constituents’ ire over the map), the concept of the ‘Gerry-mander,’ born of “fulminations of gubernatorial vengeance,” survives to this day, referring to the drawing of political or electoral districts in order to give “one political group an advantage over another,” [1] [2].

Legal History of Gerrymandering

Before gerrymandering became commonplace, majority parties shifted the election of representatives between district and statewide votes to secure an advantage. However, with the prohibition of multi-member districts in the Apportionment Act of 1842, this practice became impossible—instead, parties pivoted to gerrymandering the now-standardized single-member districts [3]. This practice continued unregulated into the twentieth century, leading to districts so solidly Democrat or Republican that the ruling parties often left district maps untouched for decades—Illinois, for instance, had the same district lines in 1947 that it did in 1902 [4]. Redistricting stagnation not only led to very low rates of party turnover but often caused huge population malapportionment (disproportion in district populations).

This population disparity between districts led to the first Supreme Court case regarding redistricting in 1962 with Baker v. Carr. The case concerned a Tennessee district map that had not been altered since 1901, particularly concerning Shelby County, which had grown to around ten times the size of certain rural Tennessee districts [5]. Tennessee argued in its defense that redistricting was a purely political topic, and therefore could not be adjudicated by federal courts. The Court ultimately ruled against Tennessee Secretary of State Joseph Carr, holding under the Equal Protection Clause that district courts had jurisdiction over redistricting as it related to unequal representation [6]. This ruling paved the way for Wesberry v. Sanders and Reynolds v. Sims in 1964, wherein the Supreme Court ruled again in favor of the jurisdiction of the federal courts over redistricting and further held that representation “must be apportioned on a population basis,” establishing the ‘one person, one vote’ standard [7] [8]. These decisions led to the ‘Reapportionment Revolution’ as states were forced to redraw districts to reflect population shifts at least once per decade.

Gerrymandering escalated towards the end of the twentieth century in response to growing partisan polarization, culminating in strategies such as the Republican State Leadership Committee (RSLC) project REDMAP, which contributed to a Republican gain of nearly 700 state legislative seats and 22 state trifectas (control over both legislative chambers and the governorship) [9]. More aggressive gerrymandering, though, led to legal challenges, presenting the question: With regard to gerrymandering, how far does the jurisdiction of federal courts extend? 

Questions of Jurisdiction

Gomillion v. Lightfoot

Gomillion v. Lightfoot (1960) was the first case to establish the unconstitutionality of racial gerrymandering. In 1957, Alabama redistricted the city of Tuskegee, where the Black population outnumbered whites four to one [10]. As local activists made headway into registering Black citizens to vote, the legislature changed the city’s electoral boundaries from a square to an “irregular 28-sided figure,” eliminating 99% of Black voters without excluding a single white constituent. In response, Black citizens sued city officials, claiming that the new city boundaries constituted discriminatory disenfranchisement in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment [11].

The federal district court dismissed the case, ruling that the state had the right to draw its own boundaries and that the court had no jurisdiction over this process. This ruling was upheld by the Fifth Circuit Court of Appeals [12]. The Supreme Court, however, reversed this decision under the Fifteenth Amendment. Justice Frankfurter, who delivered the opinion, cited that the citizens’ allegations, if proven, would establish the “inevitable effect of the Act” as intentionally depriving Black citizens of the right to vote on account of their race. This case, along with others in the 60s, established the two primary standards by which courts may strike down state and municipal redistricting: population representation and racial discrimination. 

Standards of Proof for Racial Gerrymandering

City of Mobile v. Bolden (1980) established an additional burden of proof for cases of racial gerrymandering. In this case, the plaintiffs brought a class-action lawsuit on behalf of all Black citizens of Mobile, Alabama, claiming that the city’s practice of electing City Commissioners at-large unfairly diluted the voting power of the Black population, constituting violations of the Fourteenth and Fifteenth Amendments [13]. While the District Court found in the plaintiffs’ favor, a judgment which was upheld by the Fifth Circuit, the Supreme Court reversed. 

In this decision, the Court set certain standards for racial gerrymandering: primarily, that “racially discriminatory motivation” must be proven and that disproportionate effects upon a certain racial group alone are “insufficient to establish a claim of unconstitutional racial vote dilution” [14]. Additionally, it noted certain considerations of external motivation, such as whether the decision was “routine or traditional” and whether it had “neutral justification” [15]. If these standards of racial gerrymandering could not be met, the courts would not have jurisdiction over the district plan in question. 

Six years later, the Court similarly established a three-pronged test for proving vote dilution under Section 2 of the Voting Rights Act of 1965 in the case Thornburg v. Gingles (1986). Section 2 primarily prohibits statutes abridging or denying the right to vote based on race or color, then offers standards of proof including that members of a racial group “have less opportunity than other members of the electorate to…elect representatives of their choice” [16]. Under the Gingles test, plaintiffs must prove that the minority group is large and compact enough to constitute a majority within a district, that it is “politically cohesive,” and that a “bloc voting majority” exists, which must usually be able to defeat candidates supported by the minority group [17]. These tests follow common consequences of ‘packing’ and ‘cracking’ strategies in gerrymandering and allow racial gerrymandering to be judicable according to a common standard. 

Rucho v. Common Cause

Rucho v. Common Cause, however, presented the most significant barrier to federal courts’ jurisdiction. The drawing of new North Carolina district lines in 2016 prompted an immediate challenge from a number of groups, including Common Cause and the North Carolina Democratic Party [18]. While 51% of the state’s population had voted for Democratic candidates, they represented just four of the state’s thirteen elected members of Congress—and, significantly, a Republican chair of a redistricting committee stated that the redrawing was specifically “to gain partisan advantage on the map” [19]. Rucho v. Common Cause consolidates this challenge to North Carolina’s districting plan with another case regarding redistricting in Maryland that alleged discrimination against Republican voters. 

Citing the political question doctrine, the Supreme Court ultimately held that “partisan gerrymandering claims present political questions beyond the range of federal courts” [20]. While redistricting was within its jurisdiction when considering violations of the Fourteenth Amendment, specifically with regard to population and racial gerrymandering, the Court decided that the system inherently enabled political groups holding power to influence districting and that the extent that was allowable lacked “judicially discoverable and manageable standards” [21]. It should be noted, however, that this decision does not preclude state courts from striking down redistricting plans based on their own state constitutions, as Pennsylvania did in 2018 [22].

Allen v. Milligan

1. Case Background

In the decades since Gomillion v. Lightfoot, the impact of racial gerrymandering on the minority vote has fluctuated, even as standards have remained largely the same. Consider the case of Shelby County v. Holder (2013), where the Supreme Court struck down Section 4(b) of the Voting Rights Act, which had determined certain “covered jurisdictions” within which no change in voting procedures could take place without federal approval [23]. In the three years after the Court’s decision, 868 polling places across the nation were closed, which a 2016 report from the Leadership Conference Education Fund referred to as “alarming reductions” [24]. Voting rights advocates claim that these closings largely target minority populations. 

In this absence of federal oversight, Alabama reshaped its districts in November 2021, reducing the number of Black-majority districts from two to one. Alabama, a majority-white state, maintains a steady minority Black population of around 26%. However, of its seven congressional districts, redistricting yielded just one district with a Black population over 50%—District 7, whose Black population declined from 55.6% to 50.65% [25]. In response, multiple lawsuits were filed against John Merrill, the Alabama Secretary of State, two of which—Singleton v. Merrill and Milligan v. Merrill—were consolidated into a single District Court case. Under the protection of the Fourteenth and Fifteenth Amendments, the plaintiffs sought a preliminary injunction barring the conduction of congressional elections according to the 2021 map and ordering the state to conduct elections under a map that contained two districts in which Black voters would have an opportunity to elect a representative of their choice [26].

2. Racial Influence On Politics

Race is a critical factor in politics, particularly with regard to party affiliation, and its impact is especially visible in Alabama. As Thierry Devos examined in the context of the 2008 presidential election, psychology dictates that people are more likely to evaluate ingroup than outgroup members favorably, meaning that they are predisposed towards voting for members of their own race [27]. Beyond simple ingroup favoritism, party identifications “capture racial viewpoints on political ideas, preferences, and goals,” particularly due to polarization on the issue of desegregation [28]. In their book, Issue Evolution: Race and the Transformation of American Politics, Carmines and Stimson contend that this division stems primarily from the 1964 election, wherein the Democratic and Republican candidates (Lyndon B. Johnson and Barry Goldwater, respectively) took clear and contrasting positions on desegregation [29]. In the decades since, Democrats have self-presented as liberal on civil rights issues, while Republicans presented as conservative. As a result, Republicans hold a consistent majority of white voters—around 56% in 2023—while Asian, Hispanic, and particularly Black voters tend to vote for Democrats (63, 61, and a whopping 83 percent, respectively) [30]. In Alabama, in particular, 68% of white adults lean Republican, with only 20% leaning Democrat, while 80% of Black adults lean Democrat and just 11% lean Republican [31].

The burden of proof upon the plaintiff when alleging racial gerrymandering is, therefore, significant. This burden is made yet more complicated by the fact that, while patterns of partisan gerrymandering are largely consistent with racial gerrymandering, only the latter is deemed unconstitutional. Courts must therefore rely upon differences between party affiliation and race, as well as stated motivations of districting, to determine constitutionality.

3. Case Proceedings and Conclusions

The three-judge district court panel assigned Singleton v. Merrill and Milligan v. Merrill concluded that the plaintiffs were substantially likely to fulfill the standards for vote dilution established by Thornburg v. Gingles and preliminarily enjoined Secretary of State Merrill from conducting congressional elections according to new district lines, as well as ordering the creation of a redistricting plan with an additional majority-Black district [32]. However, it declined to decide the constitutional issue. On January 25, 2022, the day after the ruling, Alabama appealed the case to the Supreme Court. In the beginning of February, the Supreme Court stayed the District Court injunctions, citing the principle established by Purcell v. Gonzalez that election rules should not be changed too close to an election [33]. Following oral arguments, the Court issued a decision in June of 2023 affirming the district court 5-4, with Chief Justice Roberts delivering the opinion [34].

The Court first held that the plaintiffs’ case was likely to succeed under Gingles, citing particularly that Black voters typically supported their chosen candidate with 92.3% of the vote, while white voters (the majority bloc) supported Black-preferred candidates with just 15.4% of the vote [35]. Thus, the Alabama map, which restricted Black voters to one majority district, did in fact dilute the minority vote. The Court rejected Alabama’s novel proposed requirements to demonstrate racial gerrymandering, including proving that any deviation between the State’s plan and a race-neutral plan could be explained “only by racial discrimination” [36]. Importantly, it similarly rejected Alabama’s argument that the application of §2 of the Voting Rights Act (VRA) to redistricting was unconstitutional under the Fifteenth Amendment. Rather, citing the 1980 case City of Rome v. United States, the Court contended that the VRA’s ban on discriminatory electoral changes (in effect, even if not intention) in fact promoted the purposes of the Fifteenth Amendment [37].

In the wake of the Court’s decision, Alabama issued a new map that failed to comply with the district court order requiring two majority-Black districts. The district court denied the map, noting that “the State enacted a map that the State readily admits does not provide the remedy [the court] said federal law require[d]” [38]. Alabama again sought a stay from the Supreme Court, which was denied [39]. The district court ultimately selected a redistricting map from a set of three drawn by a special master.

Summation and Proposals

Gerrymandering, as a whole, is acknowledged by the law to be an entrenched and inescapable part of the American political process—and with the advancement of technology, the practice is poised to become even more precise and efficient. While some states are now working to combat gerrymandering with the aid of independent citizen commissions and AI, it continues to dominate political trends for the majority of America. For instance, in the 2020 presidential election, just fifty of the four hundred and thirty-five congressional districts were won by five or fewer percentage points—and experts estimate those swing districts could diminish by as much as a third after redistricting [40]. During the 2012, 2014, and 2016 elections, the Center for American Progress estimated that the winners of fifty-nine House of Representatives seats shifted due to gerrymandering [41]. This practice effectively silences the majority in many states, preventing proper expression of democracy. As one of the few points on which gerrymandering may be challenged, racial gerrymandering is therefore a vital battleground for voting equality. 

Voting equality relies on the consistent application of the standards for racial gerrymandering set in the 80s, particularly in Gingles. Allen v. Milligan (2023) was a historic case—not necessarily because it established new standards, but because it reaffirmed previous prohibitions on racial gerrymandering in an era where cases protecting voting rights have been repeatedly struck down. Even so, in the wake of Rucho v. Common Cause, racial gerrymandering can be particularly difficult to prove, as it often aligns with partisan gerrymandering, which does not fall under federal courts’ jurisdiction. For instance, the Supreme Court ruled in Alexander v. South Carolina NAACP (2024) that although South Carolina primarily shifted district lines to exclude Black Democrats from a swing district (while leaving white Democrats), the state’s gerrymandering was considered strictly partisan and thus outside of the district court’s jurisdiction [42]. While Allen v. Milligan upheld the expansive application of §2, it left other challenges to racial gerrymandering and jurisdiction claims open. Ultimately, as the boundaries of racial and partisan redistricting tend to be amorphous, enforcement of the Voting Rights Act relies now more than ever on the judgment of courts. 

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[1] MHS Collections Online: The Gerry-Mander. A new species of Monster which appeared in Essex South District in Jan. 1812., http://www.masshist.org/database/1765 (last visited Nov 17, 2024).

[2] gerrymander, LII / Legal Information Institute, https://www.law.cornell.edu/wex/gerrymander (last visited Nov 13, 2024). 

[3] Bernard Ivan Tamas, A Divided Political Elite: Why Congress Banned Multimember Districts in 184...: EBSCOhost, 28 New Political Science (2006), https://web.p.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=0&sid=5f9972cf-e929-48c6-a666-dc07205435cf%40redis (last visited Nov 18, 2024).

[4] Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (2013), https://www.jstor.org/stable/j.ctt1gk086k (last visited Nov 17 2024).

[5] Baker v. Carr, 369 U.S. 186 (1962), Justia Law, https://supreme.justia.com/cases/federal/us/369/186/ (last visited Nov 17, 2024).

[6] Baker v. Carr, 369 U.S. 186 (1962), Justia Law, https://supreme.justia.com/cases/federal/us/369/186/ (last visited Nov 17, 2024).

[7] Wesberry v. Sanders, 376 U.S. 1 (1964), Justia Law, https://supreme.justia.com/cases/federal/us/376/1/ (last visited Nov 17, 2024).

[8] Reynolds v. Sims, 377 U.S. 533 (1964), Justia Law, https://supreme.justia.com/cases/federal/us/377/533/ (last visited Nov 17, 2024).

[9] Historical and potential changes in trifectas, Ballotpedia, https://ballotpedia.org/Historical_and_potential_changes_in_trifectas (last visited Nov 17, 2024).

[10] Samuel A. Stern, Review of Gomillion versus Lightfoot: The Tuskegee Gerrymander Case, 29 The Journal of Southern History 141 (1963), https://www.jstor.org/stable/2205128 (last visited Nov 17, 2024).

[11] Gomillion v. Lightfoot, 364 U.S. 339 (1960), Justia Law, https://supreme.justia.com/cases/federal/us/364/339/ (last visited Nov 17, 2024).

[12] Gomillion v. Lightfoot, Encyclopedia of Alabama, https://encyclopediaofalabama.org/article/gomillion-v-lightfoot/ (last visited Nov 17, 2024).

[13] City of Mobile v. Bolden, 446 U.S. 55 (1980), Justia Law, https://supreme.justia.com/cases/federal/us/446/55/ (last visited Nov 17, 2024).

[14] City of Mobile v. Bolden, 446 U.S. 55 (1980), Justia Law, https://supreme.justia.com/cases/federal/us/446/55/ (last visited Nov 17, 2024).

[15] City of Mobile v. Bolden, 446 U.S. 55 (1980), Justia Law, https://supreme.justia.com/cases/federal/us/446/55/ (last visited Nov 17, 2024).

[16] 52 USC 10301: Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation, https://uscode.house.gov/view.xhtml?req=(title:52%20section:10301%20edition:prelim) (last visited Nov 18, 2024).

[17] Thornburg v. Gingles, 478 U.S. 30 (1986), Justia Law, https://supreme.justia.com/cases/federal/us/478/30/ (last visited Nov 17, 2024).

[18] Morrill Jim, Common Cause Challenges Partisan Gerrymandering in NC, The Charlotte Observer, (2016), https://www.charlotteobserver.com/news/politics-government/election/article93903767.html (last visited Nov 17, 2024).

[19] Morrill Jim, Common Cause Challenges Partisan Gerrymandering in NC, The Charlotte Observer, (2016), https://www.charlotteobserver.com/news/politics-government/election/article93903767.html (last visited Nov 17, 2024).

[20] Rucho v. Common Cause, 588 U.S. _ (2019), Justia Law, https://supreme.justia.com/cases/federal/us/588/18-422/ (last visited Nov 17, 2024).

[21] Rucho v. Common Cause, 588 U.S. _ (2019), Justia Law, https://supreme.justia.com/cases/federal/us/588/18-422/ (last visited Nov 17, 2024).

[22] Paige L. Whitaker, Partisan Gerrymandering Claims Not Subject to Federal Court Review: Considerations Going Forward, (2019), https://www.legistorm.com/reports/view/crs/322111/Partisan_Gerrymandering_Claims_Not_Subject_to_Federal_Court_Review_Considerations_Going_Forward.html (last visited Nov 17, 2024).

[23]Shelby County v. Holder, 570 U.S. 529 (2013), Justia Law, https://supreme.justia.com/cases/federal/us/570/529/ (last visited Nov 17, 2024).

[24] Matt Vasilogambros, Polling Places Remain a Target Ahead of November Elections, Stateline (2018), https://stateline.org/2018/09/04/polling-places-remain-a-target-ahead-of-november-elections/ (last visited Nov 18, 2024).

[25] Michael Li, Alabama’s Congressional Map Struck Down as Discriminatory — Again, Brennan Center of Justice (2023), https://www.brennancenter.org/our-work/analysis-opinion/alabamas-congressional-map-struck-down-discriminatory-again (last visited Nov 17, 2024).

[26] Singleton v. Merrill, All About Redistricting, https://redistricting.lls.edu/case/singleton-v-merrill/ (last visited Nov 18, 2024).

[27] Thierry Devos, The Role of Race in American Politics: Lessons Learned from the 2008 Presidential Election, Oxford Academic 218 (2011), https://academic.oup.com/book/8926/chapter/155228402 (last visited Nov 18, 2024).

[28] Maruice Mangum, The Racial Underpinnings of Party Identification and Political Ideology, 94 Social Science Quarterly 1222 (2013), https://www.jstor.org/stable/42864139 (last visited Nov 17, 2024).

[29]Edward G. Carmines & James A. Stimson, Issue Evolution: Race and the Transformation of American Politics (1989), https://www.jstor.org/stable/j.ctv141636r (last visited Nov 17, 2024).

[30] Reem Nadeem, 2. Partisanship by Race, Ethnicity and Education, Pew Research Center (Apr. 9, 2024), https://www.pewresearch.org/politics/2024/04/09/partisanship-by-race-ethnicity-and-education/ (last visited Nov 17, 2024).

[31] Party affiliation among adults in Alabama by race/ethnicity, Pew Research Center’s Religion & Public Life Project, https://www.pewresearch.org/religious-landscape-study/database/ (last visited Nov 17, 2024).

[32] Singleton v. Merrill, All About Redistricting, https://redistricting.lls.edu/case/singleton-v-merrill/ (last visited Nov 18, 2024).

[33] Steve Benen, Conservative Justices Rescue Alabama’s Racially Discriminatory Map, MSNBC.com (2022), https://www.msnbc.com/rachel-maddow-show/maddowblog/conservative-justices-rescue-alabamas-racially-discriminatory-map-rcna15316 (last visited Nov 17, 2024).

[34] Allen v. Milligan, 599 U.S. _ (2023), Justia Law, https://supreme.justia.com/cases/federal/us/599/21-1086/ (last visited Nov 17, 2024).

[35] Allen v. Milligan, 599 U.S. _ (2023), Justia Law, https://supreme.justia.com/cases/federal/us/599/21-1086/ (last visited Nov 17, 2024).

[36] Allen v. Milligan, 599 U.S. _ (2023), Justia Law, https://supreme.justia.com/cases/federal/us/599/21-1086/ (last visited Nov 17, 2024).

[37] Allen v. Milligan, 599 U.S. _ (2023), Justia Law, https://supreme.justia.com/cases/federal/us/599/21-1086/ (last visited Nov 17, 2024).

[38] What’s Happening with Alabama’s Redistricting Post-Milligan? | League of Women Voters, (2023), https://www.lwv.org/blog/whats-happening-alabamas-redistricting-post-milligan (last visited Nov 17, 2024).

[39] What’s Happening with Alabama’s Redistricting Post-Milligan? | League of Women Voters, (2023), https://www.lwv.org/blog/whats-happening-alabamas-redistricting-post-milligan (last visited Nov 17, 2024).

[40] Colby Itkovitz, The Imminent Impact of Redistricting: Sharper Partisan Elbows, Less Compromise By Both Sides in the House, The Washington Post (2021), https://www.washingtonpost.com/politics/redistricting-partisanship-fighting/2021/10/08/e765d50c-2522-11ec-8831-a31e7b3de188_story.html (last visited Nov 17 2024).

[41] Alex Tausanovitch, The Impact of Partisan Gerrymandering, The Center for American Progress (2019), https://www.americanprogress.org/article/impact-partisan-gerrymandering/ (last visited Nov 17, 2024).

[42] Alexander v. South Carolina State Conference of the NAACP, 602 U.S. _ (2024), Justia Law, https://supreme.justia.com/cases/federal/us/602/22-807/ (last visited Nov 17, 2024).