The Supreme Court Could Further Gut Voting Rights with Merrill v. Mulligan : Consider This from NPR Last week, the Supreme Court heard opening arguments in Merrill v. Mulligan, a case that could gut the Voting Rights Act of 1965 for the third time this decade.

At the center of the debate is Alabama's new congressional maps. Black voters make up the majority of only one out of seven districts. More than a quarter of the state's population is Black.

A three-judge federal panel ruled that Alabama should create a second congressional district. The state appealed, arguing that congressional maps shouldn't take race into consideration, and the case is now in front of the Supreme Court.

Eric Holder was the U.S. attorney general during the first case that weakened the Voting Rights Act: Shelby County v. Holder. He is now in the middle of this latest fight as the chair of the National Democratic Redistricting Committee, which supports the plaintiff in the Alabama case. He shares with us the potential impact of this case and where the fight for voting rights goes if the Voting Rights Act receives yet another body blow.

In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.

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The Supreme Court Case That Will Decide if Voting Rights Should Be Race-Blind

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Evan Milligan grew up in Montgomery, Ala., six generations removed from slavery.

EVAN MILLIGAN: Like, if you were to go look at the pivotal civil rights landmarks in the city, these are the places where I grew up. And so not only do I have a reverence for what that meant in the '50s to my mom or to her peers or, you know, to folks before them, but I have my own somatic visceral memories of the same place. So it's home.

KELLY: Milligan runs a group called Alabama Forward. It's a coalition formed to encourage civic engagement and advocate for progressive policies.

MILLIGAN: I just have this interest in wanting to move the needle forward and wanting to be disruptive enough to buy my kids some time should they choose to stay here.

KELLY: It's one of the reasons that he and a group of voters filed a lawsuit against the redrawing of Alabama congressional districts. They argued it dilutes the strength of Black voters, something prohibited by the Voting Rights Act of 1965.

MILLIGAN: The Voting Rights Act really requires that where you have patterns of discrimination against non-white voters, that there should be an opportunity for voters in that area to be able to elect the candidate of their choice.

KELLY: African Americans make up more than a quarter of Alabama's population, but they have a majority in only 1 out of 7 districts. Milligan believes the statistics support a second district with a majority or close to a majority of Black voters.

MILLIGAN: Creating that second district would basically bring our congressional representation further in line with the actual realities of our population growth over the last 10 years.

KELLY: And as election law expert Richard Pildes explains, race is an important factor in the way people vote.

RICHARD PILDES: In Alabama, voting is racially polarized, which means Black voters and white voters systematically vote for different candidates, particularly when Black candidates are on the ballot. And that triggers the Voting Rights Act.

KELLY: A three-judge federal panel, a panel that included two Trump appointees, agreed with Milligan and ruled Alabama should create a second district. Milligan wasn't expecting that.

MILLIGAN: Very pleasant surprise, if not, you know, a little bit of, you know, a little bit of wonder in that moment.

KELLY: But the victory was short lived. Alabama asked the Supreme Court to put a hold on the lower court's ruling while it appealed the decision. Earlier this year, the justices granted the request in a 5-4 vote. That means the state's new congressional map, the map with only one majority-Black district, remains in effect for this year's midterms. Opening arguments began last week in the current case, Merrill v. Milligan, which could mark the third erosion of the Voting Rights Act in less than a decade. Milligan is for Evan Milligan, and Merrill is for John Merrill, Alabama's secretary of state, who says the whole issue boils down to location.

JOHN MERRILL: If 26.7% of the people that live in the state of Alabama that are identifying themselves as African American all lived in the same geographic area, they obviously would have at least two congressional districts of the seven that we currently have. But they don't. You know why they don't? 'Cause they live where they want to. So if you live where you want, then you get to vote for the people that are in that district.

KELLY: He and other Alabama Republicans reject the characterization that the redrawing of the districts was racially biased at all. Republican State Senator Jim McClendon is one of the chairs of the state's redistricting commission.

JIM MCCLENDON: We drew the districts race-blind. In other words, as our computer - as the lines moved on the screen, the numbers change. We didn't have race up there because we couldn't. You're not supposed to use race. Voting Rights Act tell you very clearly you can't use race in doing this. Then the three-judge panel comes along and says, you need to redraw these. You need to draw two districts that are majority African American districts or two that are very close to that, which means you've got to use race.

KELLY: CONSIDER THIS - should race be used in a case like this?

ERIC HOLDER: This, quote-unquote, "race-neutral approach" has resulted in the disenfranchisement of the African American community in Alabama. You know, so they say they want to do things in a race-neutral way. Well, their race-neutral way has a very race-negative impact, and that is just a fact.

KELLY: After the break, we'll hear from former Attorney General Eric Holder, who has been involved in not one but two of these battles to preserve the Voting Rights Act and ask about where the fight goes from here.


KELLY: From NPR, I'm Mary Louise Kelly. It's Monday, October 10.

From NPR, it's CONSIDER THIS. So should the Voting Rights Act be race-blind? According to Mother Jones senior reporter Ari Berman, that is the central debate in Merrill v. Milligan. He says that while Republicans argue that it should be, defenders of the Voting Rights Act say that's impossible.

ARI BERMAN: Because the Voting Rights Act was meant to consider race. It was meant to consider race as a way to stop decades of racial discrimination in voting. And you can't equalize political power, you can't create new opportunities for historically marginalized and disenfranchised communities unless you at least take race into account.

KELLY: If the Supreme Court rules in favor of Alabama, it's likely to have a chilling effect on representation for communities of color.

BERMAN: It's going to embolden states to take steps to either refuse to draw new districts for minority lawmakers at a time when there is massive demographic changes in the country, or it could embolden lawmakers to actually dismantle existing majority-minority districts that elect Black, Latino or Asian American lawmakers. So I think the general consensus among voting rights experts is that if the Supreme Court rules in favor of Alabama, it's going to lead to fewer minority legislators being elected.

KELLY: The 2013 case that first gutted the Voting Rights Act was Shelby County v. Holder - Holder as in Eric Holder, the nation's attorney general at the time.

HOLDER: Yeah, I just call it the Shelby County case.

KELLY: That case also centered around a challenge by Alabama. Shelby County launched a lawsuit against the Justice Department arguing against the Voting Rights Act's pre-clearance clause. It required any region with a history of voting rights violations to obtain federal oversight before changing voting laws. In a 5-4 decision, the Supreme Court sided with Alabama and ruled the methods of determining which states were subject to preclearance was unconstitutional. Holder expressed his dismay at a press conference following the decision.


HOLDER: You know, like many others across the country, I am deeply disappointed - deeply disappointed with the court's decision in this matter. This decision represents a serious setback for voting rights and has the potential to negatively affect millions of Americans across the country.

KELLY: Eric Holder is now in the middle of this latest fight around voting rights. He serves as chair of the National Democratic Redistricting Committee, which supports the plaintiff in the Alabama case. He told me Alabama's new map is a textbook example of a violation of Section 2 of the Voting Rights Act, which prohibits discriminatory voting procedures.

HOLDER: This is a case that is, as Justice Kagan said in oral argument yesterday, a slam dunk. And the only question is whether or not the Supreme Court is prepared to, in essence, redo, undo further harm the Voting Rights Act of 1965.

KELLY: Let's lay out the gist of the argument that Alabama is making in court 'cause I want to let you respond. The state solicitor general, Edmund LaCour, says that the law, the Voting Rights Act, was meant to cover only intentional discrimination. He argues Alabama is not intentionally discriminating here. On the contrary, it is taking a race-neutral approach to redistricting. What do you think?

HOLDER: Well, first, that states the law in an inappropriate way. It's not a question of intent. It really is a question of effects. What is the impact of what the state legislature did? And I think it's also interesting that this non-racial approach that they are taking has a disproportionate negative impact on people of color in Alabama. Alabama is a state where you could draw districts - two districts where African American citizens would have the opportunity to pick who they wanted to have represent them. There is - there are sufficient numbers of African Americans in Alabama. They are geographically compact so that you could draw two districts there instead of the one in which they have all been placed quite easily and have districts that look like regular districts.

KELLY: What about - he went on to argue - this is still Edmund LaCour, the state solicitor general - that the bigger, broader goal of the Voting Rights Act was to transform us to a society no longer fixated on race. He said that the plaintiffs - and you're backing them - would transform that statute into one that, quote, "requires racial discrimination in districting." And the goal is, of course, to take us to a political system in which race no longer matters. That seemed to be an argument that maybe some of the conservative justices might be considering.

HOLDER: Yeah, except it flies in the face of that which they are confronted. They - again, this, quote-unquote, "race-neutral approach" has resulted in the disenfranchisement of the African American community in Alabama. You know, so they say they want to do things in a race-neutral way. Well, their race-neutral way has a very race-negative impact, and that is just a fact. You know, this notion of, you know, high-handed arguments about trying to do things in a race-neutral way while ignoring the racial impacts of their approach is hypocritical.

KELLY: This question of intent came up over and over. Justice Ketanji Brown Jackson weighed in and spoke to the history of the 14th and 15th Amendments, which, as you know, were enacted after the Civil War to guarantee political power to formerly enslaved people. Here's what she said.


KETANJI BROWN JACKSON: I don't think that the historical record establishes that the founders believed that race neutrality or race-blindness was required.

KELLY: Eric Holder, what do you make of that reasoning?

HOLDER: The rookie got it exactly right. You know, with all due respect to - I shouldn't have said that, but I mean, the newest justice got it exactly right. The post-Civil War amendments are all - are infused with the desire to make fair for the newly enfranchised, newly freed American citizens to fully participate in our democracy. The statutes that we're talking about - the 1965 Voting Rights Act - is based, in fact, on the 14th Amendment, which is a post-Civil War amendment. And so I think her analysis is spot on.

KELLY: So let's broaden this beyond Alabama. What do you see as the potential effects of this case on voting rights across the U.S.? Because there are related fights underway in Ohio, Wisconsin - I could go on.

HOLDER: Yeah. I mean, a negative decision in this case will absolutely result in fewer voting protections around the country, less representation in Congress for communities of color around the country. It will allow politicians to draw and then to enforce even more extreme gerrymanders to prevent voters from having the opportunity to elect a candidate of their choice. People should understand that if you extrapolate from this case, it will have impacts far beyond just African American citizens in Alabama.

KELLY: And what about the impact on the Voting Rights Act? Can it survive another body blow? This was a case that - point that Justice Kagan was making yesterday.

HOLDER: And that's a very legitimate question. After the Shelby County decision in 2013 that essentially took away the preclearance capability or capacity of the Justice Department, that really gutted, in a substantial way, the impact - the power of the Voting Rights Act. And we relied then, to say, all right, well, you still have Section 2. If you now take that away, the Voting Rights Act will essentially be hollowed out and will really mean - make more important congressional action to put in place a new Voting Rights Act.

KELLY: If the court rules in Alabama's favor - not the outcome you want, I know, but - where do you take the vote from here?

HOLDER: It'll be difficult. You know, we'll have to - all things are about elections in the United States of America, and it means getting more people to the polls in as many ways as you possibly can. But at some point, you can only do so much against structural things that are upheld by the courts, whether they be racial or partisan gerrymanders. Those things, at some point, are ultimately hard to outvote, hard to out-organize. You know, but we'll find ways. You know, other generations of Americans have faced difficulties and always found a way to protect our democracy. I suspect we'll be able to do so as well.

KELLY: That was Eric Holder, the attorney general of the United States from 2009 to 2015 and the first African American to hold that office. NPR's Nina Totenberg contributed reporting at the top of this episode.


KELLY: From NPR, it's CONSIDER THIS. I'm Mary Louise Kelly.

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