Opinion | If Democrats Win Back the House, They Will Have John Roberts to Thank

Milligan, Wasserman continued, “could reverberate across the Deep South leading to the creation of new Black-majority, strongly Democratic seats in multiple states.”

While more districts in other states could be added, depending on the outcome of further litigation, the Cook Report changed the “solid R” ratings of two Alabama and two Louisiana districts to “tossup” and the tossup rating of a Democratic-held seat in North Carolina, to “Lean D.”

If Democrats can gain five seats, it will critically affect the balance of power in Washington.

I turned to a number of scholars and analysts to ask how they thought this might play out.

Nicholas Stephanopoulos, a law professor at Harvard and an expert on election law, wrote by email that Milligan is significant both substantively and politically:

First, it means that Section 2 remains fully operative as a bulwark against racial vote dilution; second, it signals to conservative lower courts that they need to rule in favor of plaintiffs on facts like those in Milligan; third, it takes off the table arguments that Section 2 must be narrowly construed to avoid constitutional problems; and fourth, if Section 2 is constitutional, so should be other laws targeting racial disparities.

In terms of political consequences, Stephanopoulos continued,

It’s near-certain that Alabama will have a new Black opportunity (and Democratic) district by 2024, and this is also likely in Georgia and Louisiana. There may now be successful Section 2 claims in Texas, too. Milligan further complicates the looming Republican partisan gerrymander in North Carolina. And Milligan weakens Florida’s defense for eliminating a Black opportunity district around Jacksonville, which hinges on race-conscious districting being unconstitutional. Put it all together and at least 2-3, and quite possibly more, congressional districts are likely to change hands because of Milligan.

Richard Pildes, a professor of constitutional law at N.Y.U., stressed the political importance of the Alabama decision in an email: “Even though Milligan merely affirms the legal status quo, it’s going to have much more practical significance than that might suggest.”

In light of Milligan, Pildes continued,

It is likely, at a minimum, that a new Voting Rights Act district will be created in Alabama, Louisiana and Georgia before 2024. Lower courts have found already that the current maps in those states likely, or do, violate Sec. 2. In Texas, it’s possible one or more new Hispanic VRA districts will have to be created. Before Milligan, there were suits pending in other states as well; it remains to be seen whether courts find it possible to create reasonably configured VRA districts in these other states.

One of the reasons that the Milligan case will be politically consequential, Pildes argued, is that it comes at a time when “a confluence of at least four political and technological developments will make its practical effect significant.”

First, technological advances, as used in the Milligan case, make it easier to find new V.R.A. districts that can be reasonably configured.

Second, minority-preferred candidates can win with lower minority voting-age populations (falling from estimates as high as 65 percent in the 1990s to below 45 percent now) which means more minority voters are available to create additional VRA districts.

Third, the private bar has become extremely well resourced to pursue these cases.

Fourth: the debates over partisan gerrymandering in the last decade brought many new strong social scientists into this area, in which expert analysis of maps and voting patterns plays a critical role.

Pildes contended that the following excerpt from Chief Justice John Roberts’s majority opinion is particularly important because it rejects the argument that race-based remedial districting is unconstitutional:

Alabama further argues that, even if the Fifteenth Amendment authorizes the effects test of section 2, that Amendment does not authorize race-based redistricting as a remedy for section 2 violations. But for the last four decades, this Court and the lower federal courts have repeatedly applied the effects test of section 2 as interpreted in Gingles and, under certain circumstances, have authorized race-based redistricting as a remedy for state districting maps that violate section 2.

In that context, Roberts continued, “we are not persuaded by Alabama’s arguments that section 2 as interpreted in Gingles exceeds the remedial authority of Congress.”