The SCOTUS Project to Undo Voting Rights Protections is Nearly Complete

By Sherrilyn Ifill

The Supreme Court’s decision last week in Allen v. Milligan allowing the state of Alabama to erase a majority Black congressional district is as bad as it sounds.

It is in some ways worse than its decision several weeks ago in Louisiana v. Callais precisely because in Callais, the Court took pains to suggest that Alabama v. Milligan would be spared from the Court’s shocking re-write of the test for evaluating Section 2 claims. For the Court to do precisely what it suggested in Callais just a month ago it would not do is a new level of cruel for this Court.

Breaking down every aspect of this decision’s perfidy is for another day. Frankly, what matters more is what the majority signals by this devastating decision: a now irrefutable agenda bent on fully dismantling the constitutional regime created after the Civil War to ensure Black political rights - a regime that only began to live as a result of the Civil Rights Movement in the 1960s.

The latest Milligan decision this week was issued by the six right-wing justices on the Court and signed per curiam. That means that they were all joined unanimously in the decision, but no particular justice is identified as the author. This is the majority’s way of telling us that there is no daylight between them on this opinion. They stand united in dismantling the gains of the Civil Rights Movement, and in taking yet another wrecking ball to the Voting Rights Act..

Justice Sotomayor, joined by Justices Kagan and Jackson, wrote a powerful dissent.

The Callais decision last week was a disaster, to be sure. But the speed with which the majority turns that disaster into an ugly power grab for Republicans in Alabama means that this Court has dispensed with even a veneer of deliberation and integrity as it marches this country’s civil rights laws off a cliff.

To fully appreciate the implications of what the Court has done to break the Voting Rights Act in just a few weeks, you have to go back to the 2023 Milligan decision in which the Court was clear and unequivocal in reaffirming the standard for evaluating claims brought under Section 2 of the Voting Rights writing that “our precedents and the legislative compromise struck in the 1982 amendments clearly rejected treating discriminatory intent as a requirement for liability under §2.” The majority was written by none other than Chief Justice Roberts himself.

Despite this clear statement, three years later this past April the majority in Callais (which included Chief Justice Roberts) declared that “ the focus of ,Section 2 must be enforcement of the 15th Amendment’s prohibition on intentional discrimination,” and “§2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.”

After throwing this rock, the Court attempts to hide its hand by insisting that it is not imposing a test that requires proof of intentional discrimination.

In the 2023 Milligan case, the Court also said that it had “no reason to disturb the factual findings of the District Court” which supported that the plaintiff’s had satisfied the Section 2 standard.

Based on that decision, Alabama moved forward using the map with a second Black majority congressional district. In 2024, Black Alabamans elected Rep. Shomari Figures to fill that new seat. He has now served in Congress for two years.

But this week on the same facts, the Court has now held that neither the Voting Rights Act nor the Constitution compel the state of Alabama to draw a second congressional district from which Black voters in Alabama could elect a representative to Congress.

The only intervening event that can credibly explain the Court overturning itself in this way is the outcome of the 2024 election that returned Trump to the White House and gave the Republicans a razor-thin majority, which hangs by a thread as the midterms approach this year.

Of course the Court claims that there is a legitimate reason for its reversal in Milligan. The facts of Milligan must now be read, the Court says, through what the Court calls the “updated” legal standards for evaluating Section 2 cases that it announced in Callais a month ago.

To be clear, in Callais the Court did not “update” or spruce up the test for claims brought under Section 2. Instead the Court overturned Congress’s 1982 amendments to the Voting Rights Act (which Congress enacted to correct the Supreme Court’s misreading of the statute in the 1980 case Mobile v. Bolden), and it overturned the Supreme Court’s 1986 decision in Thornburgh v. Gingles, in which the Supreme Court expressly upheld and affirmed the test Congress had set forth in the 1982 amendments that set the standards by which plaintiffs must prove a Section 2 violation. That test has been used in all Section 2 cases since 1986. Until last month.

It is critical that we focus on the consequences that will flow from both Callais and the Court’s decision in Milligan this week.

First, the Court allows Alabama to remove representation for Black voters that accurately reflected the Black share of the population in the state, after the District Court found a clear violation of Section 2 of the Act and of the intentional discrimination. The Court’s decision will compel Alabama to reconfigure of all of the state’s congressional district to actually reduce representation for Alabama’s Black population in Congress.

In so doing, the Court invites any state to do the same because the Court insists that a state can offer any political objective to overcome the claim of minority voters for representation. The state can claim incumbent protection, or even the desire to lock-in permanent electoral advantage for one political party, as sufficient explanation for districting lines that disadvantage Black voters.

This is fundamentally undemocratic. And it sends a powerful and devastating message to Black voters across the country. Any excuse - so long as it is framed as a state’s political objective - carries more constitutional weight and power than the right of Black people to political representation. I am hard-pressed to see any difference between this scenario and the way politics was run in the South during Jim Crow.

Either the Court is cruelly and irresponsibly unaware of the consequences of its decision-making, or a majority of the justices on the current Court are fully aware of the consequences and were anxious to hasten this very outcome.

The Court in this decision has also confirmed the suspicion held by many, that its “Purcell doctrine” exists to allow the Court to strip racial minority voters of the ability to realize the electoral results of voting rights cases they win in court. The Purcell doctrine (to the extent that a legal “doctrine” can be created in a shadow docket case) stands for the principle that courts should not order changes to election rules close to the date of an election. To do so, the Court warned, can result in voter confusion and election administration chaos, and undermines voter confidence in the electoral process.

But the Court has never explained how close to an election is “too close” to make changes. This has proved convenient for the majority, because only they know the answer. This week’s decision in the Alabama case shows how the Court is willing to wield the discretion it created for itself.

Concerns about voter confusion or chaotic election administration would appear to have been far from the minds of the majority in this week’s decision. As Justice Sotomayor explains in her dissent, allowing the elimination of the Black majority congressional district that has been in effect since 2024 as the Court did this week will result in

“…. a chaotic election, held under never-before used congressional map that intentionally discriminates against Black Alabamians, that Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court, and that will require officials to change the voter registrations of hundreds of thousands of voters in just days at best, a task that Alabama previously represented would take months.”

Moreover voters in half the Congressional districts in Alabama already voted in their primary in May. The remaining districts will vote in August. What could cause a greater voter confusion, chaos, and loss of voter confidence in the electoral process than changing the congressional districts of hundreds of thousands of voters who have already voted or are slated to vote in mere weeks?

Justice Sotomayor in her dissent sums up what the Court has done here with damning clarity:

“In addition to being wrong on the merits, the Court’s decision inflicts two grave harms on the public. It debases the democratic process by upending Alabama’s entire election in the name of permitting Alabama to discriminate against Black Alabamians. It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders.” 

There can be no question but that this Court’s project to dismantle the civil rights and constitutional infrastructure that has protected Black political voice for over 60 years is near completion. We are now facing the most consequential loss of Black political power since the end of Reconstruction.

The question for all of us is how we will confront this reality. Not how just how we, as Black people will confront this moment. But how all Americans who care about democracy will respond. Yes, Black people know that we will have to regroup quickly and figure out how we navigate our survival - political and otherwise - in this terrible time with even greater urgency.

But at issue also is how every American who cares about democracy and the integrity of this country’s political system will respond. Our current Supreme Court has opened the door to setting this country on a path that will lead us backwards in time to our worst days as a nation.

We need to hear broad condemnation of the project that the Court has laid bare - especially from the legal community, which should be aghast that the Court so shamelessly flouts principles of stare decisis and separation of powers, and appears so fully bent on erasing the structures Congress erected to protect minority representation. Where are the law firms? The bar associations? The Deans of law schools? You know that the liberties taken by this Court constitute a threat to our legal order. What are you prepared to say or do about it?

Are you prepared to stand and watch as Black political representation is erased? Do you yet understand that this is also your fight if you hope to live in a democracy?

The Supreme Court has rendered the Voting Rights Act a mere shell of its former itself. It serves, just as Brown v. Board of Education increasingly does, as a toothless precedent, flipped upside down to serve the ends of a far right Court. This is a disgrace, and an unforgiveable affront to the bravery, courage, and democratic vision of those who fought hardest to make this country a democracy during the Civil Rights Movement.

I mourn what the Court has done. But I will not accept defeat. I remind myself always that the collapse of repressive systems is almost always precipitated by the overreach of those who believe that they will always be in power.

Our attention must turn now to 1) continuing to use our voices and actions to express our outrage, to condemning those who seek to erase our civil rights gain, to building supporters, and to fighting the plan to permanently freeze Black voters out of the political process with even greater intensity. This moment cannot be met with silence; 2) pressuring your state representatives to protect Black voting strength in your state’s electoral districts; 3) protecting the integrity of the mid-term elections at all cost (no small feat); 3) voting to change control of the House and Senate, and; 4) and moving swiftly towards Supreme Court reform.

I warned last year that things would get worse before they get better. We are only at the beginning of the “worse.” Increase your time reading, dancing, hiking, making art. Link arms with those who care as you do.

And hang on tight.