On a recent episode of Amicus, Dahlia Lithwick asked professor Franita Tolson to clear up any confusion about the Supreme Court’s shadow docket order in the case Merrill v. Milligan, which seems to have wiped out most remaining protections provided by Section 2 of the Voting Rights Act. As Tolson, who is vice dean for faculty and academic affairs and a professor of law at University of Southern California Gould School of Law, explains, Section 2 isn’t really all that complicated to assess; the conservative justices are just muddying the waters to reach their desired outcome. A portion of their conversation, which has been condensed and edited for clarity, has been transcribed below.
Dahlia Lithwick: We’re going to turn to Merrill v. Milligan. This was a really crucial racial redistricting case under Section 2 of the Voting Rights Act, decided last week without much explanation on the court’s shadow docket, and it is enormously consequential. And it sometimes gets obscured because it’s buried under a statute and a redistricting order, and then again, under just a lack of any reasoning provided by the court. So thank God Franita Tolson is here.
I want to start by asking you to please explain literally decades of redistricting law and the Constitution standing on one foot. On the one hand, the Voting Rights Act requires states to draw districts where minority voters can elect their preferred candidates under certain conditions, but also, a jurisdiction cannot make race “the predominant factor” in redistricting without some compelling reason to do so.
And I just want to hand this to you with the caveat that Chief Justice John Roberts, dissenting from this week’s order, described this case law as having “engendered considerable disagreement and uncertainty regarding the nature and contours of vote dilution claims.” It feels as though everybody has a really vested interest in saying this is too complicated to understand. So, it is not too complicated, can you give us a quickie tutorial on this body of law about race and redistricting?
Franita Tolson: I do think that there’s this sense after the decision that Section 2 is so complicated that we need to revisit it. But keep in mind, courts have been doing Section 2 for decades. This is not something that’s new. And in fact, the case itself involved a pretty clear Section 2 violation. This is not something that you had the lower court just offhandedly say, “OK, this is a Section 2 violation,” without putting in the due diligence.
But let’s take a step back. If you think about Section 2, it’s been in place since 1982, so that’s almost 40 years of having this regime in which states are required to draw districts in which African Americans, Latinos, or any minority can be a majority in their own district, particularly if there is racially polarized voting—which means that the majority, or in most cases, white people, votes for a different candidate than the ones minorities prefer. And so the idea is to put them in their own district so that they can elect their candidate of choice. So as long as they are geographically compact, courts have tended to find that Section 2 requires this, and this has been true since 1982.
Prior to the 1982 amendments to Section 2, there was a case called City of Mobile v. Bolden. That case dealt with at-large elections. The entire governing body in Mobile was elected at-large. Minorities were not able to elect their candidate of choice despite being 40 percent of the population of Mobile. There was a question there as to whether Section 2 was violated. The Supreme Court held that Section 2 required discriminatory intent. Discriminatory intent is really, really hard to prove. So essentially, the plaintiffs would have to prove that the at-large structure was adopted for purposes of diluting the votes of minority voters. It’s very hard to prove that in many cases, so in 1982, Congress changed the law in order to make it easier for plaintiffs to win under Section 2. So you just have to show discriminatory effect.
We spend a lot of time talking about the remedy to a Section 2 violation. The remedy is to put minorities in their own district so that they can elect their candidate of choice, but you also have to show that the challenged rule or challenged plan has a discriminatory impact. So courts have been doing this. We have developed doctrines around Section 2. This is not hard. And I think part of it is that a lot of conservative justices and judges disagree with Section 2. They disagree with the use of race in redistricting. But just because you disagree does not mean that the doctrine is hard or muddled or unclear. The doctrine is clear.
That being said, doctrines have developed, really, as a response to Section 2 claims. There’s this notion that they can’t rely on race too much in drawn districts. Some of that, from a line of cases starting with Shaw v. Reno, is a response to states drawing majority-minority districts in order to, in some cases, protect minority voters, but in some cases, states have drawn majority-minority districts in order to harm minority voters.
So it’s taken on a life of its own, but courts have become equipped at distinguishing when majority-minority districts are needed and when they’re being used in order to pack minorities into districts and dilute their votes statewide. So Shaw v. Reno says, “Look, you cannot use race too much in drawing these districts. These districts have to be needed.” And compliance with Section 2—i.e., Section 2 requires the state to draw this district—has long been a defense to a potential equal protection claim under the Shaw line of cases. So to the argument, “Hey, state you’ve used race too much,” the state can say Section 2 requires this.
But keep in mind the fact that we have this line of cases under the equal protection clause, i.e., you’ve relied on race too much, shows you the disagreement with Section 2—this notion that we don’t want states drawing these districts too much, particularly if they’re not needed, because we don’t like the idea of using race too much.
So really, the Alabama case is a way to further undermine Section 2 because conservatives don’t like it. They don’t like statutes where, first of all, liability can be premised on effect. Think back to City of Mobile v. Bolden. This is why the Supreme Court said plaintiffs have to prove intent. Now, of course, that would limit the number of Section 2 claims. It also keeps the states from having too much liability in terms of having to draw these majority-minority districts. So in some ways, the Alabama case brings all of these criticisms that we’ve seen since the early 1980s about Section 2 to a head.
Even Chief Justice Roberts, this is why he’s saying, “Well, it’s confusing.” It’s almost like a two-sided coin. It’s confusing, but the law is also settled such that there’s a Section 2 violation here. Well, which is it?
The lower court looked at the Alabama redistricting plan, and they realized that there could be a second majority-minority district drawn. Because keep in mind, under the new map, African Americans are only 14 percent of the districts despite being 27 percent of the population. Red flag. This is not hard.
So I think the chief justice, even though he sided with the four liberals, wants it both ways, but he would prefer to not do it on the shadow docket. He wants the case to be fully briefed, argued on the merits, and then he’ll probably vote with the conservatives to gut Section 2. Honestly, that’s the world we live in right now.
First of all, that was the best mini-course on racial redistricting law that I’ve ever had. And super clear, because this is, as you say, doctrinally not complicated. It is cognitively complicated because, as you say, you’ve got this pincer move of “you can use race, but you can’t use race too much.” So it just seems as though this is insoluble, and yet, as you say, it’s been solved for a very long time.
Before we turn to the way this particular decision came down, I also just want to go back and loop in one thing you said about the difference between these cases that challenge access and the cases that try to challenge redistricting and vote suppression through redistricting. Because I’m aware of a conversation we had with Sherrilyn Ifill, where she was saying that her principal complaint about the shadow docket and the way in which the Supreme Court just wipes away a district court order is that all of those findings of fact—everything that was done by litigators to build a case, to make visible, not just to the justices, but to the American people, what the burden is on racial minorities—that gets wiped away too. It’s literally gone.
And the reason it really stuck with me is that is an immense amount of erasure of actual lives, of an actual record. Redistricting is so freaking hard because it feels like it’s a formula on a computer. And you just don’t have, correct me if I’m wrong, that kind of, “Here is a person who stood in line for 17 hours and couldn’t get their records from the DMV.” It just doesn’t have that human sense that she was trying to paint. And that part of redistricting is really tricky. It’s just that it can be so bloodless.
For some reason, as you were speaking, one thing that kept coming to mind is that the cruelty is the point. And it seems weird to describe it that way, but I actually think it fits here a little bit. During the Trump administration, there were a number of things that happened and I just didn’t quite understand it. Hawaii v. Trump, which challenged the travel ban. There were various iterations of the travel ban and I remember reading those decisions and thinking in my head, “Why are they going through all of this trouble? There are ways to do immigration policy that make more sense.” And the cruelty is the point.
And I think this is similar, if you think about it—this idea that the Supreme Court can swoop in and erase all of the work that voting rights advocacy groups, plaintiffs, people who are invested, people who understand this history where African Americans and other minorities, people with disabilities, language minorities, all these groups have been negatively impacted by voting laws throughout our history. They understand that history, and so they’re definitely coming to this with a lens of trying to fight. But part of it is taking the fight away. I know we hate to say it that way, but to me, that’s the only way to explain what are clear inconsistencies in the court in this space versus other spaces.
Because I’m sure if you compare what the court has done in the context of the Alabama case with what the court did in the context of the Texas abortion law, we can have an entire conversation about the inconsistencies in which the court has approached these issues. But that being said, to some extent, the cruelty is the point. And I might sound extra for saying that, but part of this is to deter these types of lawsuits from being brought. There is no other way to explain it. Brnovich, this new five-part tests that Justice Sam Alito developed to try to rewrite Section 2, makes it harder to win. The Alabama case, you have these lawyers, these amazing lawyers who put all of this work in, you had this panel of—these are not radical judges. Two Trump appointees found the Section 2 violation. So they did their job. They showed up, they understood the assignment, and then the Supreme Court comes in, and one order wipes it out.
To some extent, we have to acknowledge the cruelty is the point. This is about deterrence, it’s not just about getting to a certain endpoint. The endpoint is important; the endpoint is the complete invalidation of the Voting Rights Act. They want to neuter the statute, we know that. But they also want to deter these groups from bringing this type of litigation, because otherwise, why not wait for full briefing in an argument? So it may be an unpopular position, but I said what I said.
No, it’s hard to see it through any other lens. And it’s not just that the cruelty is the point, it’s that the bloodless cruelty is the point—that if you can’t tell this story in a way that folks can understand, then it’s a cherry on top of the sundae of cruelty. We’ve made it so arcane that maybe nobody will react.
To hear their entire discussion, as well as Dahlia’s interview with Rep. Adam Schiff, listen below, or subscribe to the show on Apple Podcasts, Overcast, Spotify, Stitcher, Google Play, or wherever you get your podcasts.
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