What is Racial Gerrymandering? Supreme Court Takes Aim at Alabama Voting

The U.S. Supreme Court will begin to hear oral arguments on Tuesday regarding the possible disenfranchisement of Black voters in Alabama.

The case Merrill v. Milligan stems from a previous lower court ruling that suggested the state's districts had violated the Voting Rights Act. If the Court sides with Alabama Secretary of State John Merrill and the defense, congressional maps would likely give just one of the state's seven congressional districts—14 percent of Alabama's total population—an opportunity to elect a Black representative.

That would disproportionately affect Blacks, who comprise about 27 percent of the state's population.

Racial gerrymandering, the issue at the center of the case, is the practice of drawing districts in unusual configurations in order to dilute the voting power of a minority group by spreading its votes into different districts.

Supreme Court Gerrymandering Alabama Redistricting
The U.S. Supreme Court building is pictured in Washington, D.C., on October 3, 2022. The Supreme Court begins its new term on Monday and is expected to hear cases addressing a number of issues, including affirmative action, Alabama's congressional map, immigration, LGBTQ protections, and the authority of the Environmental Protection Agency. STEFANI REYNOLDS/AFP via Getty Images

Three federal judges, including two appointed by former President Donald Trump, first ruled in January as part of a 225-page opinion that Alabama must draw new maps. The decision would have led to the drawing of a minimum of two districts having "an opportunity to elect a representative of their choice" in terms of more Black representation.

That lower court ruling was suspended and later overruled, however, by the Supreme Court shortly thereafter in a 5-4 decision in February that reinstated the challenged maps for this year's midterms.

"The fight for fair representation for Black voters in Alabama has been a winding road, generations long....We will continue striving to ensure that our Legislature honors the Voting Rights Act and that Black Alabamians have an opportunity to elect a candidate of their choice," said the plaintiff, Evan Milligan, following the Court's February ruling.

Davin Rosborough, a senior staff attorney at the American Civil Liberty Union's (ACLU) Voting Rights Project, originally called the Supreme Court ruling "just a temporary step" toward a continued fight for "fair opportunities" for Black citizens.

Rosborough told Newsweek on Monday that he and other members of the plaintiff's counsel have "considered all the potential impacts and scenarios here."

"Number one, we're still optimistic that the [Supreme] Court's not going to make radical changes to Section 2 of the Voting Rights Act, which was amended by Congress in 1982," he said. "I think the words of the state support a local look at whether there's equal opportunities for different racial groups to participate and elect their preferred candidates."

The reality exists that the Court could rule in the same manner, leading to what Rosborough described as potentially four decades of redistricting becoming "radically upset." That would include a loss of minority representation in Congress.

"The consequences would be drastic," he said. "They're essentially asking us to reinstate a requirement to prove that people drawing the maps acted without racial animus and discriminatory intent and basically turn this into what they call a race-neutral statute...but putting on blindfolds to race."

Deuel Ross, senior counsel at the NAACP Legal Defense Fund, co-headed the original legal team that led to the U.S. District Court's decision.

Ross told Newsweek that one of the primary legal arguments relates to Alabama's Black Belt, composed of 18 counties that make up a large portion of where the Black population has lived because of Jim Crow.

"The Black Belt community is a community that faces really extreme poverty and difficult situations largely unheard of in the Western world," Ross said, adding that the community faces a lack of adequate sewage, electricity and drinking water.

While the Black population has grown, he added, even as the white population has fallen from 75 percent to 63 percent, it still controls six of the seven congressional districts.

"It's very easy to draw a second district in which the Black Belt is not cracked," Ross said.

The League of Women Voters (LWV) of Alabama and the LWV's national organization also filed an amicus brief in support of Milligan and other plaintiffs.

In September, the LWV said its brief "explored the deep connections between residents of the Black Belt and residents living near Mobile, allowing the drawing of a second majority-Black district encompassing those residents."

Caren Short, director of legal and research for the LWV of the U.S., told Newsweek that the organization strongly believes that Section 2 of the Voting Rights Act requires a second majority-Black district in Alabama.

"It is critical that the U.S. Supreme Court follows longstanding redistricting precedent and upholds the full strength of the Voting Rights Act," Short said. "Section 2 of the Voting Rights Act is a critical tool in protecting the political power of Black voters and other voters of color, and we implore the U.S. Supreme Court to affirm the sound opinion of the district court."

When asked what makes the timing now different than earlier this year, Rosborough said the case at hand still boils down to 40 years of precedent, and that led to success under the three-judge decision.

Chief Justice John Roberts and Justice Brett Kavanaugh said in concurrence that they will give another look to that standard, he added, which provides hope for federal reconsideration.

The Supreme Court also has more time to hear presented evidence, Rosborough said. Originally, the Court ruled in about a two-week window in what he described as a "condensed period and limited view."

Update 10/3/22, 4:20 p.m. ET: This story has been updated with additional comments.