How Milligan Changed the Math on 2024

Chief Justice John Roberts

Yesterday was a big news day.  Obviously, Donald Trump becoming the first former president to face federal charges is the glossiest headline in the books, and on a blog that covers electoral politics, you'd expect me to talk about that.  But Trump's indictment we still don't know all of the pieces on (specifically, we don't know the supposed second person who would be indicted), and so I want to wait a minute before we know more before I talk about it.  Instead, I want to write about a story that might have equally large ramifications: the Supreme Court case Allen vs. Milligan, which gave us one of the most surprising Court decisions in a while, one that will have large ramifications, particularly on the battle for the House majority in 2024.

To say that Milligan was a surprise decision is an understatement.  The case involved a lawsuit alleging that Alabama was gerrymandered to disenfranchise Black voters.  Almost every Black voter is shoved into one district, the 7th, giving them only 14% of the congressional representation in a state where Black voters make up 26% of the voters.  It would be extremely easy to fairly draw a second district that would be majority African-American, and according to the Voting Rights Act, this should be the case.

For months, most political watchers had been dreading this case's decision, fearing it would gut the Voting Rights Act, particularly Section 2 that prohibits voting practices that discriminate based on race.  In the past, Chief Justice John Roberts has not been a strong ally on the Court regarding voting rights, and even with him, voting rights activists only would have four votes.  Despite a strong legal argument, it seemed likely that Democrats would lose this race simply based on the increasing partisanship of the Supreme Court.

But in a shock decision not only did Roberts join the three liberal judges on the Court (Sotomayor, Kagan, & Jackson), but so did Justice Brett Kavanaugh.  The why behind this is hard to tell.  The case has sound legal arguments, but that hasn't stopped the Court in the recent past.  One cynically wonders if Roberts didn't want to have yet another round of awful press for a battered federal judiciary (who has never been less popular) and decided to throw progressives a bone.  Whatever the reason, though, this is a very big deal.

Rep. Terri Sewell (D-AL)

For starters, this means that Alabama will be legally required to redraw their maps to allow for another district that will have at least 50% of the district's demographics be African-American.  While this doesn't guarantee another Democrat in the House (this will likely be a more marginal district than the 7th currently held by Rep. Terri Sewell), it's a district that will go to President Biden in 2024, and as a result, will likely elect a Democrat.  Given that this is mid-decade redistricting, this will come at the expensive of one of the six Republicans (it's hard to tell at this junction who that would be, but I'm betting on Gary Palmer, Jerry Carl, or Barry Moore being the candidate most likely drawn out), and will result in a net gain of one seat for Democrats in Alabama.

This also means, though, that the doors are open for other, similar court cases.  There are a number of Southern states where the VRA is in play, the most important one is Louisiana, where an almost identical lawsuit is currently on hold due to Milligan.  Like Alabama, all of the African-American voters in Louisiana are largely in one district (the 2nd district, represented by Rep. Troy Carter), receiving only 16% of the congressional representation in a state where they make up 31% of the electorate.  It seems probable that a new map will be drawn, splitting New Orleans & Baton Rouge into separate congressional districts, and while it wouldn't be a guarantee of a Democratic victory, a Democrat would be heavily favored, forming a second pickup.

There are other areas of the country this could impact as well.  Georgia, South Carolina, Texas, Arkansas, & Florida all have the potential to draw bluer districts under this reading of the law, though none of them are slam dunks like Louisiana would be).  I'd wager the most likely of the bunch would be Florida & Georgia. I personally think that even if the other states' cases have merit, they won't be able to do it as Texas's map is a jenga tower on this front, South Carolina's case is on shakier ground (and it's not clear if Jim Clyburn would allow SC Democrats to pursue it), and in Arkansas even a fairer map wouldn't necessarily become a bluer one due to geography.  One other ramification could be in North Carolina, where Republicans had been trying to do mid-decade redistricting to gerrymander four Democrats out of their House seats.  With this move, they might play it safer by going after only three, leaving Rep. Don Davis's (D) seat alone in the fear that a court appeal could throw the entire map out and they'd get no seats.  This isn't a pickup, but practically speaking it is.

All of this is to say-this is a big deal, and one that will have ramifications into 2024.  The Republicans have only a 5-seat majority.  Republicans had been hoping to gain 4-6 seats by redistricting Ohio & North Carolina, giving them an easier time in 2024, but with this case, combined with probable redistricting in Wisconsin & New York, it could be the Democrats who end up with a better map in 2024 than 2022, not the Republicans.