# Allen v. Milligan A single caption covering two opposite outcomes four years apart. In **June 2023** the Supreme Court affirmed, 5–4 on the merits, that Alabama's congressional map violated Section 2 of the Voting Rights Act. In **June 2026** the same caption returned on the emergency docket, and the Court — 6–3, unsigned — stayed the injunction and let Alabama run its midterm elections under the very map a district court had twice found intentionally discriminatory. > [!warning] Read the year before citing this case > "*Allen v. Milligan*" now names at least four dispositions: *Merrill v. Milligan* (2022 stay), *Allen v. Milligan*, 599 U.S. 1 (2023 merits), [[Allen v. Caster]] (May 2026 vacatur), and the June 2, 2026 per curiam below. A citation to "Milligan" for the proposition that Section 2 is enforceable is a citation to the 2023 opinion only, and the 2026 orders have hollowed out its remedy without overruling it. ## The 2023 decision On **June 8, 2023**, the Supreme Court ruled **5–4** in *Allen v. Milligan* that Alabama's 2021 congressional map — which contained only one majority-Black district despite the state's approximately 27% Black population — likely violated **Section 2 of the Voting Rights Act**. Chief Justice [[John Roberts]] wrote the majority opinion, joined by Sotomayor, Kagan, Jackson, and Kavanaugh. [[Clarence Thomas]] dissented, joined by Gorsuch, Barrett, and [[Samuel Alito]] (the latter writing separately). The decision was a **surprise**. After *[[Shelby County v. Holder]]* (2013) gutted VRA preclearance and the Court's conservative supermajority signaled skepticism toward race-conscious redistricting, most observers expected the Court to further narrow or functionally eliminate Section 2's application to redistricting. Instead, Roberts — joined by Kavanaugh — upheld the existing *[[Thornburg v. Gingles]]* (1986) framework and affirmed that Section 2 required Alabama to draw a second majority-Black district. ## The Case Alabama's 2021 congressional map packed Black voters — who comprise roughly 27% of the state's population and are geographically concentrated in the Black Belt region — into a single majority-Black district (AL-07, centered on Birmingham and the Black Belt). Three-judge district court panels (appointed by Trump, Obama, and Bush) unanimously found that the map likely violated Section 2 under the *Gingles* framework and ordered the legislature to draw a second majority-minority district. Alabama appealed, making two arguments the Court had been invited to accept for years: (1) that the *Gingles* framework should be replaced with a race-neutral "core-retention" approach, and (2) that race-conscious redistricting to create majority-minority districts itself violates the Equal Protection Clause. Thomas's dissent endorsed both arguments. Roberts's majority rejected them. ## The Holding Roberts's opinion reaffirmed the *Gingles* framework essentially as it had operated for four decades: **1. *Gingles* stands.** The three-precondition test — geographically compact minority group, political cohesion, racially polarized voting — remains the governing standard for Section 2 redistricting challenges. The Court declined to adopt the "race-neutral benchmark" Alabama proposed. **2. Proportionality is relevant.** While Section 2 does not guarantee proportional representation, a significant disparity between a minority group's population share and its share of majority-minority districts is relevant evidence of vote dilution. Alabama's 27% Black population and 1-of-7 (14%) majority-Black districts was a significant gap. **3. The district court was right.** The three-judge panel's factual findings — that Black voters were geographically compact enough to constitute a majority in a second district, that they were politically cohesive, and that white bloc voting routinely defeated their preferred candidates — were not clearly erroneous. [[Brett Kavanaugh]]'s concurrence emphasized the narrowness of the decision: the Court was applying settled precedent, not extending it. He signaled that future cases might need to address Section 2's constitutionality or scope, leaving the door open for the retrenchment that *Callais* would accomplish three years later. The 2023 opinion was itself the second trip. In *Merrill v. Milligan* (2022) the Court had stayed the district court's original injunction, letting the map it would later hold unlawful govern the 2022 election — Kavanaugh, joined by [[Samuel Alito]], concurring on the ground that a mid-cycle change "likely would not be enough to avoid chaos and confusion." That reasoning is worth holding onto for the 2026 section below. ## The 2026 unwinding *Allen v. Milligan* appeared to settle the question of Section 2's vitality. It took three sequential 2026 orders to undo it, and none of them overruled it. **April 29, 2026 — [[Louisiana v. Callais]].** The Court, 6–3, "updated" the *Gingles* standards. Three changes matter here. A plaintiff's alternative map must now "meet all the State's legitimate districting objectives" — including "the State's specified political goals" and "any other goal not prohibited by the Constitution" — **"just as well"** as the State's own map. A plaintiff "cannot use race as a districting criterion" when drawing that alternative map. And to prove the second and third preconditions, a plaintiff "must provide an analysis that controls for party affiliation" and show racial bloc voting "that cannot be explained by partisan affiliation." *Callais* expressly stated it was not overruling *Allen*. **May 2026 — [[Allen v. Caster]].** The Court vacated the district court's injunctions and remanded in light of *Callais*, restoring Alabama's 2023 map one week before the May 19 primary, with voting already under way. **June 2, 2026 — the per curiam.** The district court, on remand, entered a new preliminary injunction on largely the same grounds, holding in a 78-page opinion that its finding of *intentional* discrimination was "undisturbed by *Callais*." Two weeks after being reversed, it reversed back. Alabama applied for a stay on May 27; the Court granted it on June 2, 6–3, unsigned, over a dissent by [[Sonia Sotomayor]] joined by [[Elena Kagan]] and [[Ketanji Brown Jackson]]. > [!quote] The opening line of the June 2, 2026 per curiam > "In *Louisiana v. Callais*, to resolve the tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by *Thornburg v. Gingles*." That sentence is now doing work outside election law. The Commerce Department cited it in the [[2030 Census Residence Rule]] published September 10, 2026, as authority for removing race and ethnicity questions from the decennial census form altogether — see [[Colorblindness]]. ### Two grounds, and why the second one matters The stay rested on two holdings, and they are not equally defensible. **On Section 2**, the per curiam applied *Callais*: the plaintiffs' alternative map did not perform "just as well" on Alabama's stated criteria of keeping the Gulf Coast community of interest together and avoiding incumbent pairings, and the district court had treated cross-racial partisan divergence as evidence of racially polarized voting, which *Callais* forbids. **On the Fourteenth Amendment intent claim**, the per curiam said the district court "did not heed the presumption of legislative good faith" from [[Alexander v. South Carolina State Conference of the NAACP]], because it read Alabama's "legal disagreement with the court's earlier remedial order as proof of discriminatory animus" — and that its "analysis departed from *Callais*." Sotomayor's objection to the second ground is the sharpest thing in the case: *Callais* "said not a word about the standard for Fourteenth Amendment intentional-discrimination claims." *Callais* was about what Section 2 demands, not what the Constitution demands, and it explicitly denied Kagan's charge that its new test was an intent test in all but name. **A statutory ruling was used to reverse a constitutional finding it had disclaimed any bearing on.** ### The doctrinal ledger | | Allen v. Milligan (2023) | The 2026 orders | |---|---|---| | **Posture** | Full merits briefing and argument, signed opinion | Emergency applications, unsigned per curiam | | **Vote** | 5–4, Roberts and Kavanaugh with the liberals | 6–3, Roberts and Kavanaugh with the conservative bloc | | **Gingles** | Upheld as written; race-neutral benchmark rejected | "Updated" — alternative map must match all state objectives "just as well," race barred as a drafting criterion, party affiliation must be controlled for | | **Formal status of Milligan** | — | Not overruled, expressly | | **Practical result** | Alabama ordered to draw a second opportunity district | Alabama runs 2026 under the one-district map, via a stay | The shift is a three-year reversal with no change in the Court's membership. Kavanaugh moved from the *Milligan* majority to the *Callais* majority; Roberts moved with him. Note what the ledger's fourth row does: the effects-based test was not repealed, it was made unsatisfiable in practice — a plaintiff must now produce a race-blind map that beats the State at its own stated political goals. That is the vault's **hollowed, not abolished** pattern, executed on a statute rather than an agency. ### What it cost on the ground The remedial map had governed Alabama since 2022 and was used in the 2024 elections; every voter roll in the state was already keyed to it. Switching back to the 2023 plan required county registrars to **manually reassign roughly 600,000 voters** — about 15% of Alabama's registered voters — across three heavily split counties. Alabama's own 2021 filing in this same litigation represented that reassignment "can take a county's Board of Registrars 3 to 4 months to accomplish." County officials had, at most, seven days. Alabama split its primary: three unaffected districts voted May 19 as scheduled, while in four districts ballots were cast but the congressional votes did not count. A special primary was set for **August 11, 2026**. Sotomayor also flagged the [[Purcell Principle]] inversion. *Purcell* counsels federal courts against changing election rules close to an election. Here the late-breaking change was the Court's own, and the per curiam answered that "States are free to decide for themselves whether last-minute changes to an election are in their best interests" — a reading under which *Purcell* restrains courts protecting a status quo but not states abandoning one. ## Why Roberts Joined The best explanation for Roberts's vote in *Milligan* is institutional: he was defending his own precedent. Roberts authored *Shelby County* (2013) on the premise that Section 2 remained available as a remedial tool even after Section 5 preclearance was eliminated. If the Court then gutted Section 2 just ten years later, it would retroactively confirm Justice Ginsburg's *Shelby County* dissent — that eliminating preclearance was the first step toward dismantling the entire VRA. By upholding Section 2 in *Milligan*, Roberts preserved the narrative that *Shelby County* had not been a mortal blow to voting rights. By 2026, that institutional concern apparently yielded to the doctrinal pull of the conservative supermajority. *Callais* did not formally overrule *Milligan*, and the June 2026 per curiam did not either. They rewrote the framework around it so substantially that *Milligan*'s practical force was eliminated while its citation value was preserved. ## KB Significance 1. **The false reprieve.** *Milligan* was celebrated by voting-rights advocates as evidence that Section 2 had survived the Roberts Court. The celebration was premature. In retrospect, *Milligan* was the last case in which the *Gingles* framework operated as written — the endpoint of a 37-year doctrinal run (1986–2023), not the beginning of a new one. 2. **The Kavanaugh pivot.** Kavanaugh's movement from the *Milligan* majority to the *Callais* majority is the single most consequential swing vote in recent VRA jurisprudence. His *Milligan* concurrence — explicitly flagging future constitutional questions — now reads as a roadmap for the retrenchment he would join three years later. 3. **The *Shelby County* sequence.** *Milligan* is the middle chapter: *Shelby County* (2013, gut [[Preclearance]] but leave Section 2) → *Milligan* (2023, uphold Section 2 under the existing framework) → *Callais* and the 2026 orders (rewrite the framework so the effects test cannot be satisfied). Each step was presented as modest; the cumulative effect is the demolition of the Voting Rights Act's enforcement power. 4. **Defiance was rewarded, and the record says so.** After the 2023 affirmance, Alabama did not draw the second district; it adopted criteria the district court found made a second opportunity district "mathematically impossible." Alabama's House Speaker, asked about the 2023 map, said of the *Allen* ruling: "So there's just one judge that needed to see something different." Three years later that was correct. Sotomayor's clean-hands argument — that a party defying an affirmed injunction should not obtain equitable relief — drew no response from the majority. 5. **The emergency docket did the work.** The 2023 loss took full briefing and a signed opinion. The 2026 reversal took an unsigned order on an application for stay, with no merits argument, disposing of a Fourteenth Amendment intent finding made after an 11-day trial with 51 witnesses and nearly 800 exhibits. See [[Shadow Docket]]. 6. **The reasoning outran the subject matter.** Within 100 days, the per curiam's "colorblind Constitution" framing appeared in a Commerce Department rulemaking proposing to strike race and ethnicity questions from the decennial census — the data source Section 2 claims are built from. The doctrine that made vote-dilution claims harder to win is now being used to remove the evidence needed to bring them. ## See Also - [[Louisiana v. Callais]] — the April 2026 decision that rewrote the *Gingles* standards - [[Allen v. Caster]] — the May 2026 vacatur, one week before Alabama's primary - [[Alexander v. South Carolina State Conference of the NAACP]] — the presumption of legislative good faith the 2026 order enforced - [[Shelby County v. Holder]] — the 2013 decision that eliminated VRA preclearance - [[Thornburg v. Gingles]] — the 1986 framework, as written - [[Voting Rights Act of 1965]] · [[Majority-Minority District]] — the statute and the remedy - [[2030 Census Residence Rule]] — where the "colorblind Constitution" line went next - [[Purcell Principle]] · [[Shadow Docket]] — the procedural machinery of the 2026 orders - [[Redistricting Timeline 2025-2026]] — the redistricting wave shaped by this doctrinal shift - [[Gerrymandering]] · [[Rucho v. Common Cause]] — the broader concept, and the partisan-gerrymandering door that makes the partisanship defense so useful - [[Supreme Court Rulings Hub]] — the MOC for all SCOTUS cases in the KB - [[Packing and Cracking]] — the two elementary operations of district manipulation, and why they are mathematically complementary