Experts skeptical of Alabama’s redistricting strategy ahead of critical hearing

MONTGOMERY, Alabama — It’s the plaintiffs’ case to lose.

That was the verdict of legal scholars ahead of a critical Monday hearing on whether a new congressional map approved the Alabama Legislature last month addresses a three-judge panel’s concerns about potential Voting Rights Act violations.

“It’s always hard to predict, but I think it’s going be a hard case for the Legislature to make,” said Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at the Columbia University Law School.

Experts interviewed said they had doubts that the state’s approach – emphasizing communities of interest over the Voting Rights Act in an apparent play to get the case back before the U.S. Supreme Court – would be an effective strategy.

“When that’s done at the expense of Black voters, that’s not a sufficient reason, and that can’t overcome the requirements of the Voting Rights Act,” said Theresa Lee, litigation director and clinical instructor in the Election Law Clinic at Harvard Law School.

The three-judge panel ruled in 2022 that Alabama’s 2021 redistricting maps violated Section 2 of the Voting Rights Act – prohibiting discriminatory voting practices – by packing Black voters into the state’s 7th Congressional District, encompassing Birmingham and the western Black Belt.

The lower court, citing racial polarization in voting in Alabama, said the remedy would be drawing two congressional districts of majority Black voters or “something quite close to it.” The U.S. Supreme Court upheld the ruling in the case, known as Allen v. Milligan, in June.

After the Supreme Court decision, the lower court gave the state a chance to draw maps to remedy the Section 2 violation. At the end of the July special session, lawmakers produced a new map that created a 7th Congressional District with a Black population of 50.65% and a 2nd Congressional District, centered on southeast Alabama, with a Black population of about 40%.

The state also adopted new guidelines that said it said emphasized traditional redistricting guidelines and preserved “communities of interest” like the Gulf Coast, the Wiregrass and the Black Belt. Attorneys for the state argued this map better reflected traditional communities than prospective maps produced by the plaintiffs, with districts with significant Black populations.

The state pushed similar arguments before the U.S. Supreme Court, but most of the justices rejected them. Chief Justice John Roberts, writing for the majority last June, wrote that “even if the Gulf Coast did constitute a community of interest,” the plaintiffs’ maps “would still be reasonably configured because they joined together a different community of interest called the Black Belt.”

Plaintiffs argue that the Legislature’s new map does not remedy the Section 2 violation and would make it impossible for Black voters in the 2nd Congressional District to elect their preferred candidates. The plaintiffs filed a formal objection with the court, setting up Monday’s hearing.

Evan Milligan, plaintiff in the case, declined to comment for this story. Dorman Walker, lawyer for the lawmakers, declined to comment, citing law firm policy. The Attorney General’s Office did not respond to request for comment.

“My expectation is that given the Alabama’s admission that their new map doesn’t actually provide Black voters with a new opportunity to elect candidates of their choice, and that the Black preferred candidate has lost every election under my, our experts analysis and every election under the state’s own analysis, that the court has no reason to think that this provides any opportunity different than the plan that was already struck down by the Supreme Court,” said Deuel Ross, the deputy director of litigation at the NAACP Legal Defense and Education Fund and a lawyer for the Milligan plaintiffs.

If the court decides the state’s map does not meet its requirements, it could order a third party, known as a special master, to draw new maps.

The scope of the hearing

The three-judge panel consists of U.S. Circuit Judge Stanley Marcus, a Clinton appointee, and U.S. District Judges Anna Manasco and Terry Moorer, both appointed by Trump. In the lead-up to Monday’s hearing, the judges have stressed that they will only consider whether the new map addresses its findings.

Legal experts said that state’s arguments about communities of interest and traditional redistricting principles would be useful when drawing a map from scratch. But they may not apply to the upcoming hearing.

Some Republican legislators said during the special session that they wanted more specific guidance from the lower court about what to do. Briffault said the court did see the evidence that two minority-majority districts could be created as evidence for racial discrimination in the original map. The finding of racially polarized voting could also be hard for the state to overcome.

“There’s no standard metric for what exactly is a minority opportunity district, but I think the district they created in light of the amount of racially polarized voting in Alabama, I think it’s going to be kind of uphill for the Legislature to defend it,” he said.

Briffault said that the state’s reliance on arguments about communities of interest and traditional redistricting principles seemed to be an argument that the plaintiffs’ map does not look like previous Alabama maps. With a handful of exceptions, the Legislature’s map follows older congressional boundaries.

“So their argument is not so much that they’re more respectful of political subdivision boundaries, but that they get closer to the format of prior districts that actually does not come across as a very significant interest,” he said. “So they’re basically making the argument that their map is less of a change from the current map. I don’t think the courts have ever said that that’s a good defense.”

Lee said that the map does not follow what the state was directed to do by the court, and that the principles cited by the state do not overcome the Voting Rights Act or its remedy.

“The alleged remedy map that was created didn’t do what that original preliminary injunction opinion said it had to do,” she said. “Create a new plan that includes an additional district in which Black voters will have the opportunity to elect their representative of choice.”

Lee said it’s likely that a special master will end up drawing the map, based on what the court has produced.

Ross said that the court’s decision did not change anything, it just upheld existing law.

“Alabama’s acting as if the law on the Voting Rights Act, or vote dilution, is unclear in some way, but the law has existed the same way for over 50 years now,” he said.

Appealing to Kavanaugh

Kareem Crayton, senior director of voting rights and representation and democracy at the Brennan Center at New York University, said that what the state is doing is “abnormal.”

Despite the judges’ expressed desires, the state has seemed to indicate in court filings that they want to have discussions beyond the Section 2 violation, including discussions of 11 illustrative maps submitted by plaintiffs that both the lower court and the U.S. Supreme Court have accepted as legitimate. The judges have repeatedly stated that they will not relitigate their finding that the state violated Section 2 of the Voting Rights Act.

“I think there’ll be some back and forth as to whether the matter at hand is what the state wants to talk about, or what the federal court seems to have directed the state to talk about,” said Crayton.

Crayton said that the state’s apparent interest in debating Section 2’s constitutionality flies in the face of case law. Crayton said that the state has every right to defend their map, but the work to open it up to broader inquiries is “uncommon.”

“I think their positioning on this matter doesn’t really bespeak a party that’s confident that they’ve done the work that the court has asked them to do,” he said.

Alabama House Speaker Nathaniel Ledbetter, R-Rainsville, has previously indicated the potential to sway one of the Supreme Court justices, likely Justice Brett Kavanaugh, who concurred in most but not all of the majority’s June decision in Allen v. Milligan.

Attorneys for the state repeatedly cited his concurrence in an Aug. 4 filing in the case, and even suggested Kavanaugh should apply the court’s decision to strike down affirmative action on college campuses to the redistricting case.

“It just strikes me as a high stakes gamble that I don’t know most people would take, certainly with public money,” Crayton said.

This article was first published by the Alabama Reflector, part of the States Newsroom network of news bureaus with the Louisiana Illuminator. It’s supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: [email protected]. Follow Alabama Reflector on Facebook and Twitter.