Jun 13, 2023

The Supreme Court's voting rights ruling in Alabama.

The Supreme Court's voting rights ruling in Alabama.
The current Supreme Court of the United States. Front row, left to right — Associate Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justices Samuel A. Alito, Jr. and Elena Kagan. Back row — Associate Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Ketanji Brown Jackson.

It was a surprise ruling.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's topic.

The Supreme Court had a surprising ruling in Alabama's voting rights case. Plus, a question about DeSantis pardoning Trump.

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Quick hits.

  1. Former President Trump will be arraigned in Miami today for charges related to his alleged mishandling of classified documents. He is expected to plead not guilty. (The arraignment)
  2. JP Morgan agreed yesterday to pay a $290 million settlement to victims of Jeffrey Epstein in response to claims that the bank knowingly supported his crimes. (The settlement)
  3. Sen. Chuck Grassley (R-IA) said Monday that a Burisma executive who allegedly paid Joe and Hunter Biden kept 15 audio recordings of conversations he had with Hunter Biden and two he had with Joe Biden as an insurance policy. (The allegations)
  4. Texas says it will put floating barriers in the Rio Grande to protect the border from crossers. (The barriers)
  5. Washington Post publisher and CEO Fred Ryan announced he is stepping down. (The news)

Today's topic.

The Supreme Court voting rights ruling. On Thursday, the Supreme Court ordered Alabama to create a second majority-black district, throwing out its gerrymandered congressional map and upholding Section 2 of the Voting Rights Act (VRA). The 5-4 ruling in Allen v. Milligan was a surprise to many court watchers who expected the court to rule in favor of the Republican mapmakers in the state.

At question was a gerrymandered congressional map drawn in Alabama in 2021. The map gave black voters a majority in just one of the state's seven districts, despite African Americans comprising roughly 27% of the state's population. Several Alabama voters and a state senator sued over the map, arguing it violated Section 2 of the Voting Rights Act, which forbids any election law that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." Specifically, they argued that the map intentionally packed black voters into a single district and dispersed other black voters across the remaining districts, diluting their voting power. This is a common gerrymandering practice called “pack and crack.”

Last year, a three-judge panel — including two Trump-appointed judges — ruled that the map violated a framework laid out in a previous Supreme Court case, Thornburg v. Gingles. However, Alabama sought emergency relief at the Supreme Court, arguing that it was too close to the 2022 midterm elections to redraw the map. The court agreed, allowing the map to apply for the 2022 midterms. Republicans went on to win six of Alabama’s seven House seats in that election.

At the time, Chief Justice John Roberts joined liberals in dissent, arguing that he believed the lower court's decision was consistent with current voting rights law. Brett Kavanaugh joined Justice Samuel Alito and the other conservatives, arguing that freezing the ruling was consistent with the Purcell principle, which holds that courts should not change election law shortly before an election. But he did not pass judgment on the map itself at that time.

After oral arguments in the case, Kavanaugh ultimately joined Roberts and the three liberal justices to deliver a 5-4 majority to the plaintiffs suing Alabama over the map.

The majority ruled that lower courts had successfully applied a three-part test, established in the 1986 case Thornburg v Gingles, to evaluate claims brought under Section 2. That test requires any challenge to show that there are enough black or minority voters living in a sufficiently compact area that a new district could be plausibly drawn. It also must show those voters are politically cohesive, and that the state’s white voters tend to vote as a bloc to defeat the preferred candidate of the minority group. Finally, the court must also consider state-specific factors, like historical discrimination, that would indicate the process has not been equally open to voters of color.

In oral arguments, Roberts rejected two of the state's primary claims, including that the plaintiff's new maps failed to keep the Gulf Coast region of the state intact and that the plaintiffs failed to retain the core of previous maps. On the latter, Roberts argued that failure to adhere to previously used redistricting plans cannot defeat a Section 2 claim, as a requirement for similarity would "immunize from challenge a new racially discriminatory redistricting plan." Instead, Roberts argued that the court should apply the precedent of the Gingles framework to consider whether Alabama’s computer-generated maps violated Section 2 of the Voting Rights Act.

"When minority voters face—unlike their majority peers—bloc voting [by whites] along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter,” Roberts said.

In his dissent, Justice Clarence Thomas argued that the question was whether Section 2 requires Alabama to intentionally redraw long-standing districts so that black voters can control a number of seats roughly proportional to the state's black population. Section 2 "demands no such thing," Thomas argued, saying it didn't apply to redistricting at all but only to the laws and policies that regulate access to the ballot or counting the ballot. If Section 2 were to apply to redistricting, Thomas argued, this interpretation would be unconstitutional because it requires the state to allocate political power based on race.

In fact, Section 2 explicitly says that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” In its ruling, the majority acknowledged this idea, writing that “forcing proportional representation is unlawful.”

This is the third time in the past decade the court has taken up a case related to the Voting Rights Act. In 2013, the court struck down Section 5 of the VRA in Shelby County v. Holder, which required states with a history of discrimination to get approval from the federal government before making changes to their voting laws. In 2021, in Brnovich v. Democratic National Committee, the court upheld two voting rights provisions in Arizona that limited third-party ballot collection and out-of-precinct voting.

The Milligan ruling is expected to invite fresh challenges to other gerrymandered maps in states like Louisiana, South Carolina, and Georgia. Overall, the ruling could end up netting Democrats two-to-four additional congressional seats, according to redistricting expert Dave Wasserman.

Today, we’re going to take a look at some reactions from the left and right, then my take.

What the left is saying.

  • Many on the left support the ruling, arguing that this should not have been a close call.
  • Some say this ruling is even better than it looks, with reverberations that could extend to other states thanks to new redistricting technology.
  • Others argue that the celebrations should be muted, given what the court has already done to the Voting Rights Act.

In Vox, Ian Millhiser said the Supreme Court did something "genuinely shocking" by handing down a surprise victory for voting rights.

The ruling "preserves longstanding safeguards against racism in US elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state." It shouldn't be controversial for a court to follow precedent, but "this is the Roberts Court we are talking about," which has been extraordinarily willing "to toss out seminal precedents — and to dismantle the Voting Rights Act." Precedent from Thornburg v. Gingles requires voting rights plaintiffs to clear several hurdles to win a case like this.

They "must show that there are enough Black voters, living in a sufficiently geographically 'compact' area, that such [an additional] district could plausibly be drawn," Millhiser said. "They must also show that these voters are 'politically cohesive,' meaning that they tend to vote together for the same candidates, and that the state’s white voters also tend to vote 'sufficiently as a bloc to enable it... to defeat the [Black voters’] preferred candidate.'... Suffice it to say that Roberts seems to agree with the lower court’s conclusion that these plaintiffs meet these conditions and that this is not a close case."

In Slate, Richard H. Pildes said the decision is "even better than it looks."

It's tempting to view this decision "as merely an affirmation of long-standing requirements of voting rights doctrine," but it will "actually expand the effective scope of the VRA." With today's high-powered computers, it's possible for plaintiffs to ask an algorithm to create a new VRA district that is consistent with the state's general redistricting criteria. "Indeed, that is precisely what the experts did in the Alabama case." This same technique was used in other southern states to demonstrate a new VRA district could be created while "still adhering to the state’s practices about how compact districts have to be and the respect owed to keeping cities, towns, counties intact to the extent possible."

"This new technology makes it possible to find VRA districts that might have been hard to identify in the past," Pildes said. "That’s why there have been new challenges after the 2020 round of redistricting under the VRA in a number of Southern states, such as Georgia and Louisiana. In the wake of the Supreme Court decision, we will now have to see how many of those also turn out to be successful."

In The Washington Post, Melissa Murray and Steve Vladeck said you have a right to be happy, but it's no victory for democracy.

The decision was met with "relief" and "even giddiness," being hailed as a "victory." Yes, "the court’s conservative supermajority failed to undermine voting rights. But this is not an unalloyed victory," they wrote. "As an initial matter, the decision does not strengthen the act, as some pundits claimed. It merely preserves the status quo. And the status quo is that this court, over the past 10 years, has severely hobbled the law and its protections for minority voters." The court already "eviscerated" the pre-clearance rules that required the federal government to approve election law changes, which has allowed an uptick in suppressive tactics.

In this case and others across the south, the court allowed these maps to be used in the 2022 midterms. "Taking these rulings together (and others following them), as many as seven House seats across four states should have been majority-minority districts (and, thus, strong candidates for Democratic victories) and were safe Republican seats instead," they wrote. "Given that Republicans have a razor-thin 10-seat majority in the House, it’s not preposterous to suggest that the court’s unexplained interventions in 2022 were responsible for which party controls the House today." That's problematic in the abstract, but it's "utterly indefensible" now that a majority of justices have concluded the lower courts were right all along.

What the right is saying.

  • Many on the right criticize the ruling, saying the court actually endorsed race-based redistricting.
  • Some argue that the ruling actually creates more confusion and less clarity.
  • Others focused on the political implications, arguing that Republicans need to prepare to lose some seats in the South and aggressively gerrymander in states where there are opportunities to.

The Washington Examiner editorial board said the Supreme Court just endorsed "race-based redistricting."

The Supreme court is "essentially ordering the state to produce two 'black-majority' districts among its seven. Roberts, with the increasingly liberal Brett Kavanaugh and the court’s three Democratic-appointed justices, twisted logic with stunning degrees of sophistry to pretend that their decision does not contradict both statutory and constitutional restrictions against apportioning districts on the basis of racial 'proportion in the population.'" For decades the courts have approved district lines within majority-black territory. "Now it says what was legal for each of the prior decades is no longer legal, even though no applicable law has changed in the interim. Where’s the logic?"

"As Thomas noted, Alabama’s population distribution is such that the only way to create a second black-majority congressional district is to abandon race-neutral principles and make race the predominant 'precondition' for figuring out where to draw district lines," they wrote. All 11 maps proposed by plaintiffs can achieve a second majority black district only by "dividing major, black-majority parts of the county" for the first time ever, splitting up communities along the Gulf Coast region. "The court’s decision assumes that black people in urban Mobile have fewer interests in common with their white neighbors two blocks away than with rural black people on the Georgia line 200 miles away. This is racial stereotyping at its worst."

In National Review, Carrie Campbell Severino said the court is inviting confusion.

"The majority seemed focused on applying the framework for vote-dilution claims previously established in Thornburg v. Gingles (1986)—except that focus is difficult to achieve on a standard that has tended to be amorphous and confusing for judges to apply," Severino wrote. "By what benchmark did the Court determine that Alabama’s map was not 'equally open' to minority voter participation? The Court did not say, at least not explicitly. Far more clarity about this case is to be found in Justice Clarence Thomas’ dissent, the bulk of which argued that to the extent Section Two applies to districting plans, any 'districting benchmark must be race neutral: It must not assume, a priori, that an acceptable plan should include any particular number or proportion of minority-controlled districts.'"

"Any other benchmark 'would render the vote-dilution inquiry fundamentally circular, allowing courts to conclude that a districting plan ‘dilutes’ a minority’s voting strength ‘on account of race’ merely because it does not measure up to an ideal already defined in racial terms.' ... Thomas’ dissent exposed the elephant in the room—that the starting point of plaintiffs’ maps was the proportional allocation of political power based on race."

In RedState, the blogger Bonchie focused on the outcome, saying this put the Republican House majority in jeopardy.

"Certainly, this ruling reverses a trend by the high court of further limiting the VRA, which ironically began with Chief Justice John Roberts himself. The waters are a bit muddier today than yesterday, and it appears Republicans have hit a wall insofar as to how far they can push the envelope," Bonchie said. "As to the electoral damage done, Republicans only hold a slim majority in the House of Representatives, a majority made more tenuous by Rep. George Santos’ recent arrest on fraud charges. That means every district counts and this ruling could be the difference in winning or losing the chamber in 2024."

This will impact at least two seats in Alabama, "both of which will be easily won by Democrats." But the precedent will also be used in the future to push back on other Republican-drawn maps, and "there are already rumblings of challenges in Louisiana and South Carolina that could succeed." For Republicans, that means the GOP will need to get "more aggressive" in states where they can get away with it, before a deluge of changes overwhelm the ground gained in 2022.

My take.

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  • I am happy about the practical outcome here, because it should mean less gerrymandering.
  • That being said, I found the dissenters' arguments much easier to follow.
  • Ultimately, both the potential outcomes here leave me with an bad feeling.

Anytime I write about Supreme Court rulings, I try to focus on two separate things: The logic of the ruling, and the practical outcome of the ruling.

On the practical outcome here, I am happy. Gerrymandering is a bipartisan crisis, and it is a scourge on our democracy. Any ruling like this, which will effectively reduce the ways gerrymandering can happen, is a good thing. If Republican legislators in the South think heavily gerrymandered maps like this one can't get past federal courts with majority-conservative justices or a Supreme Court with a 6-3 conservative tilt, that is also a good thing. Hopefully they will take the cue and gerrymander less often.

On the logic of the ruling, I'm far more conflicted. Following precedent makes sense, and maybe this is just as simple as that: The court has ruled using the Gingles framework for four decades, and changing that would require bucking years of precedent. Was the black vote being diluted? Yes. Did it appear Republicans were diluting it intentionally? Yes. Does this violate VRA? Yes. Again: Before the midterms, a three-judge panel (with two Trump appointees), eviscerated the map in their 255-page opinion, writing that under the Gingles precedent, "we do not regard the question whether the Milligan plaintiffs are substantially likely to prevail on the merits of their [Voting Rights Act] claim as a close one."

But when I read the arguments in the case, the majority and dissenting opinions, and the punditry around them, one thing becomes obvious: There is a lot more clarity among the dissenters. Justice Clarence Thomas put it plainly: Nothing in Section 2 gives the right for a protected class to create a number of districts proportional to their share of the population. Indeed, "over 2 million race-neutral simulations did not yield a single plan with two majority-black districts, and even 20,000 simulations with a one-majority-black-district floor did not yield a second district with a black voting-age population over 40%."

In other words: If you take race out of it and ask these race-neutral algorithms to create districts, you don't end up with two majority-black districts. Starting from that point, it's hard to overcome the argument that the court is compelling a state to make race the central guidepost in creating these districts, which is plainly unconstitutional.As Severino pointed out, you can contrast that clarity with a section of the opinion that Roberts wrote:

It stated that “being aware of racial considerations” is “permissible”—even required by Section Two—while “being motivated” predominantly by race “is usually not.” But “the line between racial predominance and racial consciousness” was somehow “not breached here.”

Does that sound like an easy guideline to follow in future cases? It doesn't to me. And it might be why it was the section of the opinion that Justice Kavanaugh did not join.

You could argue that the VRA might be sloppily written law in some parts, or that the Constitution is outdated, or that past precedent in the court has created a total mess. All of that might be true. But to me, the argument put forth by Thomas and the dissenters here just made a lot more sense, was a lot more to the point, and left a lot less ambiguity. That doesn't make it right, necessarily, but it does mean that the minority’s position required less mental gymnastics.

Millhiser responded to Thomas’s reasoning (under "What the left is saying") with a good argument, too: Following Thomas's outline would make it nearly impossible for any racial gerrymandering plaintiff to ever prevail in court. Millhiser argues, essentially, that of course the mapmakers are using race as a precondition to draw these maps — the whole point is to prove it’s possible to draw two majority black districts in Alabama within the framework of Alabama's rules on redistricting. "How can a mapmaker do this without paying close attention to race?" Millhiser asks.

That's a fair point. But I'd certainly feel better if the "race-neutral" algorithm randomly spat out one other majority-black district without including racial makeup as a precondition. Absent that, the result of this decision is both that the map in question is racially gerrymandered and that the new map producing a second majority-black district is racially motivated. It’s hard for me to feel great about either outcome — which I suppose is why this case ended up before the Supreme Court.

Ultimately, none of this would have been an issue if Republicans in Alabama didn’t so egregiously racially gerrymander the state in the first place. Now, the plaintiffs were able to show that Alabama can redraw the maps to include two majority black districts, and can do it while meeting previous Supreme Court precedent on how maps can be drawn. This does not mean a voting rights plaintiff can compel a state to draw misshapen districts to meet some racial criteria. Alabama still has to create this second district with reasonably compact districts that conform with traditional districting criteria, like keeping communities with shared cultures and preferences intact. That is a good limit to reinforce, though it doesn't make any of this less complicated or convoluted.


Tickets for our event in Philadelphia continue to to get gobbled up (thank you to everyone who has decided to come!) Remember, tickets are here. We're going to be bringing the Tangle experience live to the stage at Brooklyn Bowl Philadelphia, with a moderated debate, drinks flowing, and a chance to meet the Tangle team. We're in conversations with some very exciting guests now and are excited to announce them as soon as we can. In the meantime, please get some tickets and spread the word!

Your questions, answered.

Q: What do you think of this prediction: Trump, sensing that he will end up in jail and with minimal chance he can win in the general [election] while under indictment or behind bars, will drop out of the primary before a single vote is cast and endorse DeSantis in exchange for a presidential pardon if/when he beats Biden? It seems like this or something like it might be his best case scenario now.

— Erez, Mountain Lakes, New Jersey

Tangle: I think all of that is extraordinarily unlikely. First, I think it is unlikely that, at any point before a vote is cast, it will be clear Trump is going to lose. He is in a commanding position in the primary right now and has a fighter’s chance in the general. Second, I think it is and will continue to be unclear whether he will face a guilty verdict, especially given the expected judge, venue and jury. And third, it’s not a guarantee that DeSantis would pardon him if he wins and Trump is found guilty, though I personally think he probably would.

A more interesting question, I think, is what would happen if Biden pardons Trump after a guilty verdict? That would be a pretty interesting political move, one that intrigues me a lot more than some kind of quid pro quo between DeSantis and Trump. Either way, I don't think it’s likely that Trump will drop out, or that he will be sure of defeat, or that he will be sure of a guilty verdict.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

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Under the radar.

Americans' views on issues related to gender are changing rapidly. A new poll by PRRI found that the number of Americans who say there are only two genders has increased from 59% in 2021 to 65% in 2023. Non-white Protestants, Hispanic Catholic, and voters under the age of 30 years old represent the largest increase. 40% of Americans said they would be uncomfortable if a friend uses gender-neutral pronouns, while just 35% said they would be comfortable. The poll also found that 49% of Americans believe public schools give children harmful information on sexual identity and gender, while 50% believe they do not. The survey showed sharp divides among Republicans and Democrats, including 90% of Republicans who say there are only two genders and 44% of Democrats saying the same. The poll, which surveyed more than 5,000 Americans, was conducted by PRRI. You can find a write-up of the findings in NBC News.


  • 85%. The percentage of Americans who say they have heard a little or nothing at all about legislative redistricting in their state, according to a 2022 Pew poll.
  • 55%. The percentage of Americans who say they are unsure of how they feel about redistricting in their state.
  • 24%. The percentage of Americans who say they are dissatisfied with redistricting in their state.
  • 19%. The percentage of Americans who say they are satisfied with redistricting in their state.
  • 63.6%-34.8%. The margin of victory in 2022 for Democrat Terri Sewell over a Republican challenger in her race for Alabama's 7th District.
  • 29.6%. The highest share of the vote won by any Democrat in any of Alabama's other six congressional districts.
  • Zero. The number of congressional districts in Alabama considered "competitive."

The extras.

  • One year ago today we published a piece on the January 6 hearings.
  • The most clicked link in yesterday's newsletter was the ad in our free newsletter for Morning Brew.
  • Agreed: 85% of Tangle readers said the Department of Justice should have indicted former president Donald Trump on charges of mishandling classified documents and obstructing the government's efforts to obtain them. 8% were unsure, but leaned in favor. 3% believed the DOJ should not have indicted Trump, while another 3% were unsure but leaned against.
  • Nothing to do with politics: Pat Sajak has announced his retirement.
  • Take the poll. What do you think of the Supreme Court's decision? Let us know!

Have a nice day.

Montana children will have access to free books, courtesy of Dolly Parton and in partnership with the state's first lady, Susan Gianforte. Parton's book-giving program, The Imagination Library, seeks to improve educational outcomes and create a foundation for a lifelong love of learning in young children. The library will provide a free book each month to any Montana child up to 5 years old who is registered with the organization. "Literacy is critical for our kids and their development. When parents read to their kids or when a child reads, it engages them, it fires their imagination, and sparks their curiosity," Gianforte said. To date, the Imagination Library has gifted over 206 million books in the United States, Canada, the United Kingdom, Australia, and Ireland. Sunny Skyz has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.