In what has taken over the national conversation surrounding next year’s midterm elections, Republicans are redistricting mid-decade to bolster the party’s chances of keeping congressional control. With explicit encouragement from the White House, state lawmakers in Texas and Missouri muscled through new gerrymandered maps that reconfigure Democratic-held districts for presumptive Republican pickups. In the past, many such maps have been challenged in the courts under Section 2 of the Voting Rights Act for improperly representing minority groups. However, recent developments question the feasibility of this legal strategy going forward.
The Voting Rights Act of 1965, which grew out of the Civil Rights Movement, “prohibits states from reducing a minority group’s ability to elect its candidate of choice.” Section 2 of the law specifically prohibits electoral discrimination on the basis of race, color, or language. The most common way states comply with Section 2 and the rest of the Voting Rights Act is by drawing majority-minority districts, which are districts where a minority group or a coalition of minority groups make up a majority of the population.
Allen v. Milligan (2022) and the “Southern Strategy”
One recent high-profile case invoking Section 2 against an electoral map was the Supreme Court’s Allen v. Milligan (2022) decision. In Allen, the Court upheld a district court ruling that Alabama’s congressional map enacted after the 2020 census results did not properly represent its Black population. Of the state’s seven districts, just one district had a Black majority. The plaintiffs in Allen successfully argued that “[B]lack voters could constitute a majority in a second district that was ‘reasonably configured.’” The Supreme Court’s decision affirmed, with Chief Justice John Roberts writing, that the district court ruling had “faithfully applied our precedents and correctly determined that, under existing law [Section 2].” This ruling reinforces how the judiciary has previously considered Section 2 challenges to district maps, and importantly, that these maps must reflect demographic realities.
Allen is a landmark case for a Supreme Court, with a 6-3 ideologically conservative majority, that was expected to rule against Section 2’s protections. However, it does not deviate from the precedent of Thornburg v. Gingles (1986). In Gingles, the Court put forth a three-part test to evaluate violations of Section 2. First, a protected class, such as a racial minority group, must demonstrate it has the population and be geographically concentrated for a “reasonable” district to be drawn. Through simulated maps, the plaintiffs in Allen demonstrated a second district would be feasible with a “reasonable” shape. Second, that protected class must be “politically cohesive.” The district court found significant cohesiveness, citing the statistic that “on average, Black voters supported their candidates of choice with 92.3% of the vote,” while “white voters supported Black-preferred candidates with 15.4% of the vote.” Third, that class must demonstrate that they cannot participate politically on an equal footing. On this test, the district court concluded that Black Alabamians were not on a level political playing field as white Alabamians, given the lack of statewide chances, numerous campaigns featuring racial undertones, and Alabama’s history of discrimination.
The district court’s conclusion on the third test is particularly striking. It is a testament to the racialized electoral geography of the United States, which makes Section 2 necessary to fairly represent minority groups. Exit polls from the 2024 presidential election illustrate the racial differences in voting patterns. While 86% of Black Americans voted for Vice President Kamala Harris, the Democrat, just 13% voted for former President Donald Trump, the Republican.
Alabama is not unique. The entire American South is stained with an oppressive history of race relations. Alabama’s gerrymandered congressional map overturned in Allen is a story that repeats itself. Many Black Southerners live in what is known as the “Black Belt,” which gets its name from the fertile soil, but also from its “high proportion of [B]lack voters” and connection to slavery. Prior to the Allen decision, several Southern states — namely Louisiana, Mississippi, and South Carolina, and Alabama — packed these Black Belt voters into one district, each. These districts, by and large, elect Democratic members of Congress while all other districts in each state were predominantly white and had Republican representation.
Although a conservative Supreme Court upheld Section 2 of the Voting Rights Act’s protections for minority representation in Allen, it should not be taken for granted. Justice Brett Kavanaugh, who ruled in favor of plaintiffs in Allen, recently made clear in his questioning during oral arguments in the 2025 consolidated cases of Louisiana v. Callais and Robinson v. Callais that he perceived a time limit to Section 2’s protections. The consolidated Callais case, which is yet to be decided, is a challenge from non-Black voters in Louisiana following the Allen decision, which also forced the state to add a second Black-majority congressional district. In this case, Kavanaugh took issue with Section 2, arguing that the Court’s principle around equal protection that “race-based remedial action must have a logical end point, must be limited in time, must be a temporary matter…how does that principle apply to Section 2?” His ambivalence on this protection may be indicative of grim judicial interpretations of Section 2 in the future.
Redefining “Majority-Minority” in Texas
But as the Supreme Court reconsiders Section 2 in the Callais case, another federal court is already paring back its protections. The Fifth Circuit — which covers Louisiana, Mississippi, and Texas — ruled in Petteway v. Galveston County that challenges to the Voting Rights Act cannot be based on minority coalitions, “which allow minority groups to be considered together for the purposes of Section 2 vote dilution claims.” As the Supreme Court has declined to hear Petteway, the Fifth Circuit’s decision becomes precedent in its jurisdiction. And with respect to Texas’s new gerrymandered map, litigation based on the Voting Rights Act could face a limitation from this decision.
Despite a high-profile walkout of Democratic state legislators in Texas to deny Republicans a legislative quorum to approve their gerrymandered maps this year, they were ultimately passed over accusations of racial bias. However, should Petteway be upheld, Texas’s map might be discriminatory in practice, but still legally permissible, because the decision redefines “majority-minority” to mean only when one minority group forms a majority, rather than multiple minority groups together as a majority. Texas’s map could hold up, at least in the Fifth Circuit, because it actually adds three majority-minority districts — two Black-majority and one Hispanic-majority — while reducing the number of minority coalition districts from nine to four. As such, Texas could argue that its new map expands minority representation through new districts that feature majorities of just one minority group rather than including several distinct minority groups. Though Petteway and Texas’s new maps continue to be litigated, these changes have already weakened Section 2 by setting a precedent.
Minority Representation In Peril
Losing Section 2 as a viable legal challenge to gerrymandering would deal a death blow to ensuring minority political representation in states that have historically tried to prevent it. But it is just a symptom of a larger, more structural problem. As many Republican-controlled states gerrymander, other Democratic states have unilaterally pursued fairer maps through bipartisan or independent redistricting. While fair maps represent good government, Democrats simultaneously cede their ability to respond in kind. Despite the recent example of California Governor Gavin Newsom asking voters to overrule the state’s current independently drawn congressional map and approve a map favoring Democrats this November, gerrymandering is a numbers game that Democrats cannot win. And without Section 2, this numbers game becomes even more perilous to the party. “[Democrats] have fewer states where they can retaliate for partisan gerrymandering,” David Daley, a senior fellow at FairVote, told The Hill. “[Then] they have the likelihood that the Supreme Court could limit Section 2 of the Voting Rights Act and eliminate Black Democratic seats in the South.”
No other established democracy allows politicians to draw their own electoral maps, let alone engage in racial gerrymandering, on the same level that the United States systematically does. Given that policy changes are unlikely to happen in a polarized Congress (in 2022, the evenly divided Senate rejected Democratic proposals to ban partisan gerrymandering and mid-decade redistricting), the federal judiciary’s undermining of Section 2 will disregard 60 years of progress since the Voting Rights Act was first enacted. The consequence is not just that millions of Americans cannot fully participate in the political process, but that the United States is the facade of a multiracial democracy, both in theory and in practice.
Featured Image: Montgomery Advertiser
