On June 8, the US supreme court issued one of its most surprising decisions in recent memory.
In a 5-4 ruling, the court ordered Alabama to redraw its congressional map and add a second majority-Black district. In Allen v Milligan, the court offered a full-throated defense of section 2 of the Voting Rights Act, a portion of the landmark 1965 law that outlaws any voting practice that discriminates based on race. It was an abrupt about-face from the court, that has otherwise slowly chipped away at the law over the last decade. “In recent years, this statute has fared not well in this court,” Elena Kagan said of the Voting Rights Act during oral argument in October.
The majority opinion was also authored by Chief Justice John Roberts, long considered one of the biggest foes of the Voting Rights Act – the same justice who had gutted a provision at the heart of the law that required places with a history of voting discrimination to get their election changes pre-cleared.
Deuel Ross, a civil rights attorney at the NAACP Legal Defense and Educational Fund, was one of the attorneys who argued Allen v Milligan before the supreme court last fall. It was his first oral argument before the court.
“Alabama’s map cracks that community and allows white block voting to deny black voters the opportunity to elect representation responsive to their needs,” he started off his argument.
Ross, 40, grew up with an understanding of how discrimination intersected with his family’s lives. Raised outside Los Angeles, his parents were bus drivers and supervisors of bus drivers and both had gone to segregated schools in their childhoods. His grandmother paid a poll tax in Texas for several decades of her life. “I very early on understood in real time how states or changes in the law could take away opportunities from people of color,” Ross said.
The Guardian spoke with Ross about the decision in Allen v Milligan and its implications for voting rights.
In the simplest way you can, what did the supreme court say in this ruling?
The first, and most obvious result, is that Black voters in Alabama, for the first time since Reconstruction, for the first time in nearly 150 years, will have representation in more than one congressional district. And that representation will be elected from the Black belt region of Alabama, which is a historic but unfortunately extremely poor and disenfranchised region of the country where Martin Luther King began his ministry. Where the Selma to Montgomery march was.
The second thing that’s really significant is that the supreme court has affirmed the constitutionality of section 2 of the Voting Rights Act, which is the provision that has essentially integrated every level of government for the last 40 years.
Third, the court has for the first time in a long time signaled both to legislatures and to Congress and to local government entities and to lower courts that the Voting Rights Act can and should be robustly enforced. This was an opinion by John Roberts in which he said, sort of echoing the language he used in Shelby county, that history did not end in 1960 and that courts can and should look to recent and ongoing discrimination and where appropriate find violations of federal law.
For people who aren’t as familiar with Justice Roberts, why is it so surprising to see this coming from him? And were you surprised to see him issue a ruling like this?
Chief Justice Roberts is a deeply conservative jurist who began his career in the Reagan administration arguing against this very section of the Voting Rights Act that he’s now upheld as constitutional. And Roberts is a person who almost exactly 10 years ago wrote the Shelby County decision which essentially ripped the heart out of the pre-clearance provision of the Voting Rights Act, which required states and jurisdictions with a history of discrimination to basically get permission from the federal government before passing any new new laws or rules related to voting.
So to see him sort of give this full-throated endorsement of section 2, which – correct me if I’m wrong, I read his opinion as a full-throated endorsement of section 2 – is just surprising.
It is. It is different than anything he has written before.
And not only an endorsement of section 2 but an endorsement of disparate impact law, which is something that Roberts has questioned before and there are federal laws that prohibit racial discrimination even where you can’t prove discriminatory intent. Even just the fact that he not only wrote an opinion affirming the decision, but wrote an opinion in which he quoted Thurgood Marshall and really defended the importance and need for the Voting Rights Act I think is historic and significant.
What do you think got to him, what do you think convinced him of the need to preserve section 2?
I think there were a few things that struck me, even before the argument.
The story that our clients told at trial about their own experience, for example. My clients like Evan Milligan and Sheila Davis … testified and talked about what it means to be an Alabamian and to have a community that is devastated by a lack of resources, and to have members of Congress who are supposed to represent the Black belt community and yet vote against the bipartisan infrastructure bill that would have brought resources to that community.
I think the fact that there is such a clear history of racial discrimination in Alabama. The fact that Alabama has chosen to divide its Black community time and time again. And the fact that this is as the district court has said, a clear cut example of the Voting Rights Act I think is what required Roberts and Kavanaugh to come to this result.
There’s been a characterization of this case that it didn’t make things worse, but it didn’t necessarily improve voting rights. It sort of preserved the status quo. Do you agree with that, and if not why not?
I don’t agree with that.
As I said, the very fact that Alabama will have representation in a way that they have not since reconstruction means that this case is significant and historic. Aside from that, doctrinally, thinking about where the law stands, the fact that for the first time in 40 years the supreme court has affirmatively said the Voting Rights Act, as applied to redistricting, is constitutional and can justify the use of race in redistricting is something the court has had many times and many opportunities to say, but has never done so explicitly and in a forceful way.
The final thing is the supreme court didn’t just affirm existing law – they found the Voting Rights Act as constitutional and they also rejected a number of arguments that defendants often make in section 2 cases. So, you know,[they rejected] trying to use race neutrality as a baseline, [or] trying to argue that plaintiffs have to show that it’s possible to basically keep maps as close to the way they already are to prove a violation. That in itself will make it possible for more plaintiffs to win than under the existing supreme court precedent.
Can you walk me through the evidence, how you guys proved that Alabama violated section 2 and what the court ultimately accepted?
At the heart of it is basically two things.
One is proving that it’s possible to draw an additional majority minority map in a place like Alabama. Alabama has a growing Black population that’s now at 27% of the state and a shrinking white population. So even though Black people in the state make up 27% of the population, they only have a good chance of winning representation in Congress in about 14% – one out of seven congressional districts. Whereas white voters basically have a lock on 86% of Alabama’s congressional seats, but are a shrinking, 65% of the state’s population.
The other thing courts look at is what’s called racially polarized voting. And that’s proving that Black voters prefer different candidates than white voters. And it’s not a partisan analysis. It’s an analysis that in our case included showing Black voters prefer usually Black candidates in Democratic primaries. That white voters do not prefer Black candidates even in Democratic primaries – not even in Republican primaries, even in primaries there’s a reluctance for white Republicans to vote for Black Republicans. So race is sort of the driving narrative for why people are voting the way they are and why minority candidates cannot win elections in Alabama’s current map.
I’ve heard this described as a textbook section 2 case. If this doesn’t violate section 2, nothing does.
That’s exactly right. And that’s why you see in the trial court, there were three judges, two of them were appointed by President Trump, unanimously said this is a textbook violation of the Voting Rights Act and I think that’s also why Roberts and Kavanaugh voted the way they did. Because this is such a classic example of a Voting Rights Act violation which doesn’t necessarily come along all that often but does exist and requires a remedy under longstanding law.
Can you walk me through the argument that the court really stepped away from, that it rejected in this case? Alabama seemed to be advancing an argument that you really should put racial blinders when it comes to redistricting.
One thing Alabama was trying to get the supreme court to say was … that race has no role whatsoever in redistricting. And so you can’t, when you’re thinking about trying to draw a congressional district, or a school board district, or a city council district, you can’t think about the race of voters in the community.
I think that has a superficial attractiveness. No one wants to engage in racial discrimination. But when you think about it, you think of a community like the Black belt. For hundreds of years African Americans were brought to the Black belt to work the soil as enslaved people and many of those people’s ancestors still live in the Black belt community. So that community is defined by race …
Even Alabama’s own argument was undermined by its reliance on race. So when Alabama was arguing about why plaintiffs maps were inadequate, why we shouldn’t have brought our section 2 claim, one of the things the state said was that it wanted to protect the French and Spanish colonial heritage of the gulf coast region of Alabama. And that is fundamentally about the race of the white European settlers there. It’s very hard to extract race and things that are very connected to race like culture or nation of origin from redistricting and from trying to protect and respect communities when doing redistricting.
I wanted to ask you about a line in Kavanaugh’s concurrence that’s caused some concern – this idea that just because the 1982 amendments authorize the consideration of race, he seemed to say that doesn’t mean that it’s authorized forever. Many people read that as an invitation to come back to the court and sort of bring another challenge focused on that. Do you see that as a threat?
I think the very fact that Justice Kavanaugh voted in this case to find a section 2 violation in Alabama shows that there are current circumstances that justify ongoing federal oversight under … whether it’s section 2 or section 5. I think that line is something to be concerned about, something to think about. I think that the very fact that justice Kavanaugh, who wrote the line, voted to find that there’s voting discrimination today in Alabama is sort of significant evidence that any kind of challenge to the constitutionality of the Voting Rights Act or any provision of it based on current conditions I think is bolstered by the facts of what happened in this case.
After the decision, there’s been a wave of stories like this is gonna upend redistricting in the south. We’re gonna start seeing additional majority minority districts in Georgia, Louisiana, Texas. Do you think that’s true or do you think the story is more complicated?
Unfortunately the story is more complicated. Obviously in Alabama there will be a new congressional district. In places like Louisiana and Georgia, where district courts already found there was a section 2 violation it’s like that there will be new congressional districts.
In places where the evidence is not as clear, then we don’t know what will happen … It’s important to not undersell the importance of the supreme court affirming the constitutionality of the voting rights act. Taking away some of the tools defendants have used to beat back these cases. The test, even now strengthened, is very difficult. I don’t think it’s right to presume there’s going to be a deluge in change but I do think it’s fair to say the Voting Rights Act will see more successes than it saw yesterday and we’ll see more litigation around it.
The dissents from Thomas and Alito. Is there anything you took away that stood out to you from those opinions or that people should be paying attention to?
I think the most disturbing thing about the dissents is that they exist. This is, as we’ve been talking about, a very clear violation of the voting rights act under precedent that has existed for nearly 40 years and a law that has been around for a very long time. Just the fact that this was a 5-4 decision instead of a 9-0 decision I think is troubling and disappointing.
You have been in the supreme court a number of time in the last few years on voting rights cases and have not won those cases. I’m just curious what it was like for you to prepare a pretty consequential opinion last week, finally prevailing in a case.
It’s validating all of the hard work, both myself, colleagues and co-counsel have been doing, not just in the litigation, because part of the record in this case is lower court wins LDF won in Alabama in recent years.
I often talk about and think about my grandmother, who’s thankfully still alive, but is 94 now in Texas, in the same place where she has lived for most of the last 70 years or so. [She] grew up in a place where she wasn’t able to vote without paying a poll tax until she was nearly 40, lived with what Texas is still going through, which is discriminatory redistricting, every congressional cycle. It’s nice and gratifying in the personal work that I’ve done, but also that this has real consequences for real people like her all over the country.
