Merrill v. Milligan concerns a map of Alabama’s congressional districts, which civil-rights groups say is in violation of the Voting Rights Act. The case could be a litmus test for the wreckage the Supreme Court is ready to leave behind.
, Justice Elena Kagan asked Edmund LaCour, Jr., the solicitor general of Alabama, a question that offered a glimpse of where the current Court, and perhaps the country, may be headed. Merrill v. Milligan concerns a new map of Alabama’s congressional districts that was drawn after the 2020 census. The state’s population is twenty-seven-per-cent Black; for decades, only one of its seven districts, centered on Montgomery, has been majority Black.
“Your Honor, there’s always going to be that intensely local appraisal to see what was going on there,” LaCour said. In other words, the answer was yes. Alabama, moreover, has argued that drawing the sort of two-majority-minority-districts map the lower courts had asked for might be unconstitutional—a violation of the Fourteenth Amendment’s guarantee of equal protection—because it involves so much thought about where Black voters live.
Court decisions over the years, notably, in Thornburg v. Gingles, a 1986 case, have established that those other circumstances include such things as whether it’s even possible to draw a map with majority-minority districts without crisscrossing a state with squiggly boundaries, breaking up neighborhoods, and squeezing in people who might share a racial identity but have otherwise differing priorities—for example, urban and rural populations.
Jackson spoke at some length, and managed to elicit some revealing responses from LaCour. The Fourteenth Amendment, he said, “is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.” After Jackson challenged him about whether that was what the V.R.A. did, he raised the possibility that a map drawn to produce two majority-minority district could itself violate the law.
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