By Björn-Michael Lange

Gerrymandering: Where does the term come from?

The term “gerrymandering” comes from the early 19th century. It is a combination of the name of Governor Elbridge Gerry of Massachusetts and the word “salamander”1. A newly drawn district map for the Massachusetts Senate election, when Gerry was in office in 1812, had similarities to a salamander. The brazen political map signed into law by Governor Gerry gave disproportionate representation to his party, the Democratic-Republicans. The map was published and criticized in the Boston Weekly Messenger, under the title “The Gerry-Mander”.

Elbridge Gerry as a signer of the Declaration of Independence was a founding father and the fifth Vice President. So, in a sense, “Gerrymandering” is as old as the American republic itself. Every ten years, corresponding to the new census, the political districts are redrawn.

Today, in the United States, gerrymandering is defined as the political manipulation of electoral districts in a way that gives one political party an unfair advantage over its rivals2.

Allen vs. Milligan: Two main Pillars of the Voting Rights Act

Before the Voting Rights Act, literacy tests, the grandfather clause and poll taxes were still allowed, leading to a disenfranchisement primarily of black voters. In 1965 President Johnson signed the Voting Rights Act into law. It had two main Pillars, Section 2 and Section 5. Section 5 stated that certain Southern states had to get permission from the federal government before changing any of their voting laws. Section 2 basically bans denying the right to vote based on race. It says:

No voting qualification of prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”

The Voting Rights Act has been amended to include the right for voters to elect representatives of their choice. The right to vote, to quote Ronald Reagan, giving a speech about the extension of the Voting Rights Act in 1981, is “the crown jewel of American liberties”3.

History before Allen vs. Milligan: Shelby County v. Holder 2013 Decision – gutting of the first Pillar of the Voting Rights Act

In 2013 the Supreme Court, divided along ideological and partisan lines, voted 5-4 to gut the main pillar of the landmark 1965 Voting Rights Act in the Shelby County v. Holder decision. Until then, some (mostly) Southern states and certain counties with a history of voting discrimination, had been subject to the preclearance requirement of Section 5 of the Voting Rights Act, before making new changes to voting rights.4 Dissenting Justice Ruth Bader Ginsburg said at the time: “Hubris is a fit word for today’s demolition” of the law5. The political reaction to the decision fell largely along party lines. After the Supreme Court´s ruling many Southern states introduced voter ID laws and many polling places that had once been covered by preclearance were closed6. The other main pillar of the Voting Rights Act, Section 2, which dates back to the 15th Amendment, remained intact and was not subject to the Shelby County v. Holder decision7.

New Alabama Congressional Map drawn in 2021

After the 2020 census, Republican lawmakers in Alabama redrew the state´s congressional map. The result: one majority-black congressional district (out of seven, or 14 % of the districts), with Alabama´s black voting-age population at about 26 percent.

Gerrymandering Techniques: “Packing” and “Cracking” both used in Alabama’s Map

As the saying goes, in a democracy, the voters choose the politicians. With gerrymandering, the politicians choose the voters8. That sums up gerrymandering well. Many times, the results are obvious. Political gerrymandering often produces strange looking districts. The two gerrymandering techniques are called “packing” and “cracking”9. In Alabama, the 7th district was “packed” with black voters, creating a majority-minority district. This gives black voters enough voting power, to elect a representative of their choice to the US congress. The problem with Alabama´s electoral map was the “cracking” of black voters between districts 2 and 3. The geographic concentration of black voters was split in the map between the two districts. The result: a dilution of influence in both districts10. A group of black voters sued Alabama over the “cracking” and went to court.

History of Voting in Alabama; Successful Section 2 Lawsuit in 1992

For the first 115 years after Reconstruction, the state of Alabama elected no black representatives to Congress.

However, in 1992 Section 2 lawsuit challenging Alabama´s then-existing district map resulted in the state´s first majority-black district and, subsequently, the state´s first black representatives since 1877.

The 15th Amendment of the Constitution and Section 2 of the Voting Rights Act

The 15th Amendment of the US Constitution states: „The right of citizens of the United States to vote shall not be denied or abridged (…) on account of race, color, or previous condition of servitude.”

In 1982 after much deliberation, the United States Congress amended § 2. The amended § 2 reads now as follows:

(a) No voting qualification of prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color … as provide in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State of political subdivision are not equally open to participation by members of a class of citizens … in that is members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”

21-1086 Allen vs. Milligan: Does the last remaining Pillar of the Voting Rights Act stand?

In January 2022, a unanimous three-judge panel of the Federal District Court in Birmingham (AL) ruled, that the legislature should have drawn a second district, “in which black voters either comprise a voting-age majority or something quite close to it”11.

In 2022 the Supreme Court reinstated Alabama´s congressional map in a 5-4 decision in a brief order with no explanation. The 2022 congressional elections were held under the challenged map12.

Following the Shelby County v. Holder decision some election law experts believed, that Section 2 of the landmark Voting Rights Act was also in danger of being struck down by the Supreme Court13. On June 8, 2023, in a surprising decision, the Supreme Court struck down Alabama´s electoral map as unconstitutional by a narrow 5-4 vote.14. Surprisingly, Chief Justice Roberts, who wrote the majority decision, and Justice Kavanaugh joined the three liberal Justices on the court.

21-1086 Allen vs. Milligan: The Majority Decision Written by Chief Justice Roberts

Chief Justice Roberts wrote in the majority decision, that the law “may impermissibly elevate race in the allocation of political power within the states”. He added: “the heart of these cases is not about the law as it exists. It is about Alabama´s attempt to remake our Section 2 jurisprudence anew.15

He went on: “As we explain below, we find Alabama`s new approach to § 2 compelling neither in theory nor in practice. We accordingly decline to recast our § 2 case law as Alabama requests.16” His main argument is: “To that end, we have reiterated that § 2 turns on the presence of discriminatory effect, not discriminatory intent. Individuals thus lack an equal opportunity to participate in the political process when a State´s electoral structure operates in a manner that “minimize(s) or cancel(s) out the(ir) voting strength”. (…) A district is not equally open, in other words, when minority voters face – unlike their majority peers – bloc voting along racial lines – unlike their majority peers- bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter.”17

Justice Roberts concluded: ”The concern that § 2 may impermissibly elevate race in the allocation of political power within the States is, of course, not new. See, e.g., Shaw, 509 U.S., at 657 (Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters.”) Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here”18.

Allen vs. Milligan: Justice Kavanaugh´s Concurring Decision

Justice Kavanaugh wrote: “I agree with the Court that Alabama´s redistricting plan violates § 2 of the Voting Rights Act as interpreted in Thornburg v. Gingles, 478 U.S. 30 (1986). I write separately to emphasize four points.19” Specifically he argues: “JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under § 2 for some period of time, the authority to conduct race-based redistricting cannot extent indefinitely into the future.20

Allen vs. Milligan: Dissent Written by Justice Clarence Thomas

Justice Thomas wrote a blistering dissent, stating that these cases “are yet another installment in the disastrous misadventure of this Court´s voting rights jurisprudence”.21 He proceeded: “The question presented is whether § 2 of the Act, as amended, requires the State of Alabama to intentionally redraw its longstanding congressional districts so that black voters can control a number of seats roughly proportional to the black share of the State´s population. Section 2 demands no such thing, and, if it did, the Constitution would not permit it.22” Justice Thomas added: “The District Court held that this showing, plus racially polarized voting and its gestalt view of Alabama´s racial climate, was enough to require the State to redraw its districting plan on the basis of race. If that is the benchmark for vote dilution under § 2, then § 2 is nothing more than a racial entitlement to roughly proportional control of elective offices – limited only by feasibility – wherever different racial groups consistently prefer different candidates. If that is what § 2 means, the Court should hold that it is unconstitutional.23

Justices Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett largely joined him in his dissent.

Professor Richard L. Hasen’s Opinion on Allen vs. Milligan

Richard L. Hasen, a law professor at the University of California, is quoted in a New York Times article: “It would have been an earthquake for the court to have read Section 2 as the dissenters would have, severely curtailing minority voters representation in Congress, state houses and city halls. Roberts and Kavanaugh´s joining with the liberals in preserving the status quo helps not only minority voters, but the court´s fragile legitimacy in the face of these other ruling and ethics scandals24.”

Federal Court rejects new Map, September 5, 2023

On September 5th of 2023, a federal court rejected the newly drawn Alabama voting map25. The court wrote:

We are disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstance we face. We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.

After that ruling, Alabama Secretary of State Wes Allen, a Republican, went to the Supreme Court to keep the map with only one majority-black district in place.

Supreme Court Ruling Against Alabama´s Electoral Map in Late September 2023

In late September of 2023 the Supreme Court ruled against Alabama lawmakers and their redrawn Congressional District map, which did not include an additional majority-black district26. The decision gave no reasoning but rejected the newly proposed map and set the stage for a special master and court-appointed cartographer to draw a map in accordance with the Allen vs. Milligan decision27.

October 5th 2023: Alabama is ordered to use new Map with an additional Majority-Black District

A federal court, composed of two Trump appointees and one Reagan appointee, ruled on October 5, 2023, that Alabama must use a new Congressional map with a second majority-black district28.

This final decision could result in Alabama electing two black representatives to the U.S. Congress for the first time in history29.

The Impact of Allen vs. Milligan and the Effects of Gerrymandering on the Congressional Elections

The Control of the House of Representatives in 2022 was decided by just 6,675 cumulative votes in 5 House districts30. That is just 0.006 percent of the more than 107 million votes cast in 2022 U.S. House races. Therefore, court battles over gerrymandered districts are likely to be a major factor in determining who wins control of the House in 2024.

The impact of this landmark decision will not be limited to Alabama. Several other states have similar maps that dilute the power of black voters or are strictly partisan gerrymanders. There are pending court lawsuits in a number of states that could result in the Democratic Party gaining a net of 10 or more seats in the House31.

Taken all together, the implications of the Supreme Court´s landmark Allen vs. Milligan decision with regards to the drawing of the 2024 Congressional maps and its impact on control of the House cannot be overstated.

Latest Rulings and News on Gerrymandering

On December 12th 2023, New York Supreme Court ruled in a 4-3 decision, that the state must redraw it’s congressional map. Thus, Democrats could gain up to 6 seats in Congress.32 The battle over New York´s Congressional seats is considered to be a key battle with regards to control of the House of Representatives in 202433. The new Congressional map was released in mid-February34. Redistricting expert Dave Wasserman of the Cook Political Report said that the new map will be slightly beneficial for the Democratic Party35.

In North Carolina, Republicans drew a map that could result in at least three additional seats for their own party.36

Just recently, Republicans scored a major victory in Georgia. A newly drawn map ordered by court, resulted in a a new majority-black district. However, it preserved the 9-5 advantage of the Republicans. Subsequently, U.S. District Judge Steve Jones ruled that the map “fully complied” with the court order.37

In Florida, an appellate court ruled in December 2023 that the map favored former presidential candidate Ron DeSantis38.

In South Carolina, a three-judge panel ruled, that a map drawn by state GOP lawmakers was an unconstitutional racial gerrymander. During oral arguments, the conservative majority of the Supreme Court questioned the South Carolina ruling.39

In late January Jeff Landry, Governor of Louisiana, signed a new Congressional map with a second majority-black district, into law40. The Louisiana case clearly mirrors Allen vs. Milligan.

All things considered, 2023 was a good year for Section 2 for the Voting Rights Act. However, the Voting Rights Act will be challenged again in the upcoming elections, such as the one in Arkansas. The 8th Circuit Court ruled in January,41 that there is no private right of action42. It will probably be decided by the Supreme Court 43. However, a new case is likely to be decided by the 11th Circuit Court (covering Florida, Georgia and Alabama) with potentially devastating consequences for the enforcement of Section 2 of the Voting Rights Act44. In addition, there are new threats to Section 2 of the Voting Rights Act with regards to cases from Georgia, concerning the system by which the members of the Public Service Commission are elected 45 as well as cases from Texas with regards to the “coalition districts”46.

Above all, the fight against racial and partisan gerrymandering, the fight for voting rights, and the successes in these fights ensure that, to quote Abraham Lincoln, arguably the greatest president in American history, “government of the people, by the people, for the people shall not perish from the earth”47.

About the Author:

Björn-Michael Lange is a partner at Vy Rechtsanwälte. His practice covers finance, capital markets, labor, litigation and corporate law.

Responsible Editor:

Isabel Cagala, TLB Co-Editor-in-Chief

19 21-1086 Allen v. Milligan (06/08/2023) ( Kavanaugh, J., concurring in part. p. 1

20 21-1086 Allen v. Milligan (06/08/2023) ( Kavanaugh, J., concurring in part, p. 4.