Allen v. Mulligan, the Voting Rights Act, & Non-Ideal Theory

On Thursday, June 8th, the Supreme Court of the United States announced what many consider a surprise ruling. In Allen v. Milligan, a 5-4 verdict affirmed a lower court’s judgment that Alabama likely violated the Voting Rights Act (VRA) by discriminating against Black residents via Congressional districts. Chief John Roberts and Justice Brett Kavanaugh joined Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson with Roberts authoring the majority opinion.

What precisely was at issue? In January 2022, a federal court ruled that, due in part to racially polarized voting patterns in the state (meaning that one’s race is highly predictive of the candidate for office that one prefers), the Congressional districting plan for Alabama likely discriminated against Black residents. The districts were largely unchanged from previous plans. However, looking closely at how the districts break down by county, one notices some oddities – the borders of the single majority Black district jut across counties and include only segments of metropolitan areas like Birmingham and Mobile, while the other six districts primarily follow county lines. As a result, there is only one majority minority population Congressional district in Alabama, despite Black residents making up about 27% of the state’s population. A redistricting plan proposed by the challengers, drawn around county borders, would result in two districts where the Black population would make up about 40% of the electorate in each.

The majority opinion put forward two primary points. It largely affirmed the Court’s ruling in Thornburg v. Gingles, which offered several criteria to test whether the effects of election laws are discriminatory. Among these are whether the votes of a protected class are diluted. Some hallmarks of vote dilution include “packing” and “cracking” the votes of a minority population – the former occurring when larger numbers of members of a particular protected class are placed into a single district, and the latter when small numbers of that class are scattered into a large number of districts. The court ruled in favor of the challengers to Alabama’s district, in part due to finding that their proposal avoided these issues and served as a reasonable alternative.

Further, the majority opinion objected to arguments offered by the state of Alabama. Specifically, the majority agreed that while district makers should not be strictly motivated by racial considerations, they must certainly be aware of them. However, Kavanaugh’s concurrence specifically did not sign onto this portion of the majority opinion, instead agreeing with Justice Clarence Thomas that “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” although noting that this was not an argument raised by Alabama.

Thomas offered a lengthy dissent from the majority opinion, in which he objected to several points. The primary thrusts of his criticisms were as follows. First, he affirmed a view he has argued for since at least 1994, that violations of section 2 of the VRA only deal with one’s ability to register to vote and to physically cast a ballot – so districting cannot be a violation in his view. Second, he argued that the “reasonable alternative” plan offered by the challengers failed to serve as a race-neutral benchmark for redistricting, as it was designed with race in mind. Third, the plaintiffs in this case sought a proportional system of voting power based on race. (Though Roberts argues at multiple points in his opinion that the plaintiffs were not seeking race-based proportional power, and that Gingles explicitly rules this out.) In concluding his dissent, Thomas argues that the kind of redistricting accepted by the majority is, ultimately, a kind of segregation as it divides voters based on racialized lines, writing that it “does not remedy or deter unconstitutional discrimination in districting in any way, shape, or form. On the contrary it requires it.”

Admittedly, I lack the legal expertise to directly assess the merit of the majority or the dissenters’ jurisprudence and application of case law. Nonetheless, I think it is worthwhile to examine the philosophical ideas behind each position.

There is an obvious kind of appeal to the dissenting position that race is not a category we should consider from a legal perspective. After all, race is, as John Rawls put it, arbitrary from a moral point of view – it is not something that we control and, while it may shape how others perceive us, it does not by itself directly determine our preferences, attitudes, or competencies. Thus, to allow it to shape our decision-making is to make decisions based in part on something that ought not matter. Further, perhaps creating policies, in part, out of concerns about race may create the possibility for discrimination. To modify a statement made previously by Roberts, the way to stop discriminatory organizing of districts by race is to stop organizing districts by race altogether.

However, this point may overlook a crucial philosophical distinction, namely, the difference between ideal and non-ideal theory. There are multiple ways of understanding this distinction. One particularly relevant way is as follows. Ideal theory is concerned about the standards that we believe our society ought to be organized around. In the present case, this would be the standard of racial equality – that an individual’s race should not matter to their life’s outcomes, or the decisions that policy makers generate. Non-ideal theory, on the other hand, looks at the ways in which and reasons why we have failed to reach these ideals previously. To adopt non-ideal theory about race in the United States, for instance, requires recognizing the ways in which racial discrimination has occurred throughout its history, and use those reflections to inform our judgments about how to achieve racial equality now. Failure to consider non-ideal theory may simply result in maintaining the advantages created by hierarchal systems in the past, by leaving those inequalities unchecked and unaddressed.

The members of the majority, Kavanaugh in particular, seem to adopt a non-ideal perspective about districting in Alabama. Perhaps, in the future, we will not need to pay attention to the racial demographics of Congressional districts. But given the history of racial discrimination in the United States, the districts as previously drawn have the effect of minimizing the political power of the Black population even if that was not the intention of those who proposed those districts at present.

So, the members of the Court seem to disagree about the right balance to strike between our ideals and the means we should take to achieve those ideals. Namely, they disagree about whether non-ideal theory is appropriate to guide our decision-making when it comes to voting rights. But it is worth noting that the Court is set to rule on affirmative action in the near future, and many believe that their decision will bring about its end. Thus, how Roberts and Kavanaugh vote on that case will be particularly interesting. If, indeed, they rule against affirmative action it suggests the following view: voting rights are the kind of rights that our policies must address in a racially conscious way, but access to economic and educational opportunities do not warrant race consciousness. However, our economic rights and freedoms may serve as the scaffolding promoting rights of political participation. For instance one may not be able to vote unless one is able to afford to take time off from work to go to the ballot box, as not all states guarantee time off to vote, and even fewer grant paid time off. So, it is not immediately obvious that such a distinction is tenable, at least in a philosophic sense, once we begin to adopt the perspective of non-ideal theory.