The Uncertain Future of the Voting Rights Act: Vanderbilt Law School Speakers Discuss Redistricting Since Baker v. Carr and Merrill v. Milligan


Alex Mormorunni, Contributor

Earlier this semester, Vanderbilt Law School hosted two lawyers, Junaid Odubeko and Scott Tift, to discuss what Odubeko described as “pure politics at its best, or worst” – redistricting. Odubeko discussed gerrymandering at the federal level, while Tift examined redistricting within the state of Tennessee. Odubeko, former legal counsel to Tennessee Governor Phil Bredesen, emphasized the significance of Merrill v. Milligan. Currently pending in the Supreme Court, Merrill has the potential to substantially weaken the Voting Rights Act of 1965. If the majority rules in favor of the state of Alabama, the defendant, the precedent this would set would make challenging an unfair congressional district much more difficult.

Both lawyers stated adamant opposition to the practice of gerrymandering. Odubeko described it as “very unseemly.” Gerrymandering, they argued, decreases accountability for politicians, makes for less competitive election races, and furthers political polarization. This last issue has been exacerbated by technology’s implementation into gerrymandering. Computer models can create perfectly gerrymandered districts that get as specific as “splitting a house,” Tift described. Polarization has plagued this country throughout its history, but never before has Lincoln’s admonition of “a house divided” been realized so meticulously. 

No state has been more important to the development of redistricting law than Tennessee. The most important case in the history of redistricting, Baker v. Carr (1962), was born from Tennessee citizens’ desire to reapportion the state’s General Assembly seats. The case was argued before the Supreme Court, which ruled 6-2 in favor of the citizens and introduced the famous “one man, one vote” doctrine. The case was significant as the first time the Supreme Court decided to enter the “political thicket” of redistricting, deciding that it was a judicable matter and not just a political one. The crucial case of Merrill v. Milligan is only possible because of this decision that redistricting is judicable. Merrill v. Milligan will determine whetherAlabama’s 2021 redistricting plan for its seven U.S. House seats violates Section 2 of the Voting Rights Act.” The case has the potential to substantially weaken Section 2 of the Fourteenth Amendment which protects against racially discriminatory redistricting policies. Odubeko placed special emphasis upon this case as, due to the conservative majority within the Supreme Court he believes that Alabama will win, and that, “[The Supreme Court] is probably going to make it a lot harder to show a history of discrimination.” This would be detrimental to the Voting Rights Act, as demonstrating a history of discrimination is one of the primary methods for demonstrating discrimination. To stiffen the standards of evidence for demonstrating historical discrimination would make Section 2 challenges less likely to succeed in the future.

At present, Scott Tift represents three separate clients suing Tennessee regarding the state’s voting map. 

The voting maps for Tennessee’s congressional and state legislative districts were redrawn following the 2020 census, and the numbering system of Tennessee’s counties was reconfigured. Representatives are reelected every four years in a two-part cycle, with one-half of seats being put to vote every two years. The numbering of counties is therefore consequential, as the election cycle in which county representatives are reelected is decided by whether their county is numbered as even or odd. Odd counties, in Tennessee’s case, have their representative elections in the same years as presidential elections, resulting in a much larger turnout for elections in odd counties than in even ones. Tennessee Republicans, who benefit from low turnout, numbered contested counties as even. Making contested counties fall on odd years, during which there is lower turnout, increases the likelihood of a Republican taking the seat. While this is not illegal, Tift’s case argues that the manner in which the GOP numbered the counties was. Some even numbered counties were placed next to each other (county 16 next to county 18 for example), which was a direct violation of Article II Section 3 of the Tennessee constitution which states, “districts shall be numbered consecutively.” Tift decided to take his case before a rural court, which, though they tend to lean conservative, generally reach verdicts quicker. Tift is attempting to carry his challenge to verdict before the 2024 election cycle.

The Voting Rights Act preserves equality of representation in the nation’s democratic elections. The challenges it faces from the GOP and from the conservative majority in the Supreme Court could weaken the legal strength of the “one man, one vote” ideal. The important work that lawyers like Tift do could be made more challenging by a ruling in favor of Alabama in Merrill v. Milligan. On the federal level, a ruling favorable to Alabama would mean that any future challenge to unfair redistricting would have to overcome the formidable precedent such a verdict would set.