Voting Rights and Election Law: The Next Wave of Litigation?

Matthew Zarbatany, Jr. is a first-year student at American University, Washington College of Law. Matthew graduated from Virginia Tech with a BA in Political Science and a BA in History. His interests include civil rights, voting rights, election law, constitutional law, and tort law.

Since the ruling in Shelby County v. Holder and controversies surrounding elections and voting access since 2020, a passionate debate around voting rights and elections has risen; two cases resulting from this recent trend are currently awaiting decisions from the Supreme Court. In particular, there is Allen v. Milligan (formerly known as Merrill v. Milligan), which could affect what remains of the Voting Rights Act of 1965.

Allen v. Milligan follows a line of cases litigating the Voting Rights Act of 1965. The Court held in Shelby County v. Holder that Section 4(b) of the Voting Rights Act of 1965, which, subject to federal preclearance, created a formula for states with a history voting discrimination to follow, was unconstitutional.[1] While Section 5’s constitutionality was left undecided, Congress failed to create an updated preclearance formula, rendering it useless without a means of enforcement.[2] As a result, the Voting Rights Act has been enforced primarily through the use of Section 2 of the Act, but is regarded as less efficient.[3] Section 2 “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership,” based on factors Senate Committee on the Judiciary identified which impact “totality of the circumstance of the local electoral process.”[4] Brnovich v. Democratic National Committee exemplified Section 2’s ineffectiveness and weakening of the Voting Rights Act when two Arizona laws were upheld which required voters to cast their election-day ballot in their precinct or else it would be discarded including in elections where they could cast ballots anywhere in the state and another which barred anyone except a family member or caregiver from returning early ballots for another.[5]

Milligan concerns a congressional map out of Alabama where only one of its congressional districts was majority-minority, despite the fact that the 2020 census showed over a quarter of the state’s population is Black.[6] A three-judge district court found that evidence proved the congressional map violated Section 2 and the decision was “not a close one.”[7] The district court was convinced the plaintiffs met the three preconditions for a suit under Section 2 established in Thornburg v. Gingles and that the totality of the circumstances showed discriminatory voting practices that diluted voting power.[8] The preconditions in Thornburg require that a plaintiff show the minority group is sufficiently large enough to elect a representative of its choice, the minority group is politically cohesive, and that the white majority votes enough as a bloc that usually defeat the minority’s preferred candidate.[9]Alabama appealed to the Supreme Court, where they recently argued that a plaintiff must show that it was the intent of the legislature to make the map discriminatory rather than race-neutral and that the Thornburg analysis was misapplied.[10] Alabama also argues that Section 2 may be unconstitutionally exceeding its power in taking race into consideration for re-districting rather than being race-neutral.[11] While there is a host of ways the Supreme Court could rule, “any result will almost surely limit Section 2’s reach in the context of redistricting.”[12]

A decision in this case is expected to come shortly in late spring or summer of 2023.[13] Based on precedent in Shelby County and Brnovich, the Court’s majority is likely to rule in a way that weakens Section 2 of the Voting Rights Act. Without the passage of either the John Lewis Voting Rights Advancement Act of 2021 or the Freedom to Vote Act during the previous congressional session, combined with the Court also hearing Moore v. Harper and the independent state legislature theory, voting rights and election legislation could see a major shakeup in the coming years.

[1] Shelby County v. Holder, 570 U.S. 529 (2013).

[2] P.R. Lockhart, How Shelby County v. Holder Upended Voting Rights in America, Vox (last updated Jun. 25, 2019, 7:49 PM EDT), https://www.vox.com/policy-and-politics/2019/6/25/18701277/shelby-county-v-holder-anniversary-voting-rights-suppression-congress.

[3] Id.

[4] Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437.

[5] Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321 (2021).

[6] Gabby Means, The Latest Threat to the Voting Rights Act: Merrill v. Milligan, League of Women Voters (last updated Dec. 8, 2022), https://www.lwv.org/blog/latest-threat-voting-rights-act-merrill-v-milligan.

[7] Steven D. Schwinn, Merrill v. Milligan and Merrill v. Caster, American Bar Association (last updated Dec. 7, 2022), https://www.americanbar.org/groups/public_education/publications/preview_home/merrill-milligan-caster/.

[8] Id.

[9] Id.

[10] Ellis Champion, Section 2 of the VRA Could Be Next on SCOTUS’ Chopping Block, Democracy Docket (last updated Sept. 29, 2022), https://www.democracydocket.com/analysis/section-2-of-the-vra-could-be-next-on-scotus-chopping-block/.

[11] Id.

[12] Steven D. Schwinn, Merrill v. Milligan and Merrill v. Caster, American Bar Association (last updated Dec. 7, 2022), https://www.americanbar.org/groups/public_education/publications/preview_home/merrill-milligan-caster/.

[13] See Gabby Means, The Latest Threat to the Voting Rights Act: Merrill v. Milligan, League of Women Voters (last updated Dec. 8, 2022), https://www.lwv.org/blog/latest-threat-voting-rights-act-merrill-v-milligan.