72 Am. U. L. Rev. 1601 (2023).

Download PDF Here!

Abstract

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. While the opinion discussed the state’s hardship at length, it failed to discuss the hardship to Black voters at all. This dominant reading of Purcell advances the core ideological investment of constitutional fundamentalism whereby Black citizens are stripped of rights, made to exist in the body politic as unrepresented subjects, and then dispossessed in the name of the public interest.

The views in this article do not represent the views of either LDF as an organization or its clients.

* Brittany Carter, Political Participation Fellow, NAACP Legal Defense and Educational Fund, Inc. J.D., Cornell University; Ph.D., New York University; B.A., University of Rochester. She is a member of the litigation team in Allen v. Milligan and is admitted to the New York state bar.