Alabama is back in the Supreme Court — to seek the justices’ permission to openly defy one of the Court’s recent orders.
In June, the Supreme Court ordered Alabama to redraw its racially gerrymandered congressional map to include a second district where Black voters could elect their representative of choice. This case is known as Allen v. Milligan.
The decision was not particularly ambiguous. Five justices voted to affirm a lower court decision, which itself held that “the appropriate remedy is a congressional redistricting plan that includes either an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice.”
Nevertheless, Alabama responded to this decision with overt defiance — drawing a new map which, by the state’s own admission, includes only one district, of seven total, where Black voters are likely to elect their chosen representative. That’s just like the old maps that were struck down by the Supreme Court.
There is some risk that one key justice, Brett Kavanaugh, could flip his vote in this case. In June, when the Court handed down its decision ordering Alabama to redraw its maps, the vote was only 5-4, with Chief Justice John Roberts and Kavanaugh joining the Court’s three liberal justices to form a majority. Kavanaugh, however, wrote a separate opinion where he suggested that he might be open to declaring part of the Voting Rights Act, the federal law that prohibits race discrimination in elections, unconstitutional.
The oddest thing about Alabama’s latest brief to the justices, where the state’s lawyers ask the Court to bless Alabama’s defiance of the previous Milligan decision, is that it barely discusses this constitutional argument. Instead, Alabama’s legal team spends a simply astonishing amount of time fixating on an extremely minor aspect of the case — how voters in Alabama’s “Black Belt” should be allocated among the state’s congressional districts.
So Alabama’s latest request to the Supreme Court should go nowhere — if for no other reason than because the Court would destroy its credibility if it reversed course just a few months after its June decision in Milligan.
Nevertheless, given this Supreme Court’s record of hostility toward the Voting Rights Act, there is a non-zero chance that Alabama will prevail in its request to slip free from the Court’s June decision.
Alabama’s primary argument in its new brief to the justices is laughably weak
In its latest Supreme Court filing, Alabama’s legal team spends a bewildering array of pages discussing the state’s “Black Belt,” a region named for the dark color of its unusually fertile soil, but which also has a high Black population.
The Black Belt is mentioned a few times in the Court’s June Milligan opinion, but only in the context of ancillary arguments that played a very minor role in the Court’s approach to this case. Yet, if you read Alabama’s latest brief and nothing else, you would think that this entire case turns on the fact that the maps struck down in Milligan divided the Black Belt into four different congressional districts, while the new map only divides it into two.
Under the Supreme Court’s decision in Thornburg v. Gingles (1986), a plaintiff alleging that racially gerrymandered maps violate the Voting Rights Act must clear three hurdles or their case is tossed out at an early stage in the litigation. Of these three hurdles, one is relevant to the current state of the case: Someone alleging that a state should have an additional Black district must show that the Black population of the state is “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.”
The purpose of this hurdle is to make the plaintiff demonstrate that it is actually possible to draw an additional Black district before the lawsuit proceeds. If it is not possible to do so, then there is no point in making a court analyze the wide range of other factors that it must consider before determining if a legislative map is an illegal racial gerrymander.
In any event, Gingles requires this hypothetical district to be “reasonably configured,” meaning that it is compact, contiguous, and otherwise comports with the traditional criteria that courts have looked to in the past when evaluating such maps. One of these traditional criteria is that courts look at maps more skeptically if they split up too many “communities of interest,” which are population groups that may share a common history, ethnicity, social identity, or way of making a living.
The first time Milligan went up to the Supreme Court, Alabama argued that the plaintiffs’ proposed maps — again, maps whose sole purpose was to prove that it is possible to draw an additional Black congressional district in Alabama — were not reasonably configured because they failed to keep together the state’s Gulf Coast region, which the state’s lawyers argued was a community of interest.
The Supreme Court rejected this argument, however, because “even if the Gulf Coast did constitute a community of interest,” the plaintiffs’ proposed maps “would still be reasonably configured because they joined together a different community of interest called the Black Belt.”
None of these details are especially important. In any given state, there will be many communities of interest. And any valid map is likely to split up at least some of them. The Court’s point in its June opinion was that keeping the Gulf Coast region together was not a goal of such transcendent importance that it could justify drawing racially gerrymandered districts — especially when the state’s original maps split up other communities of interest, such as the Black Belt.
In the wake of the June Milligan decision, the state drew a new map that does divide the Black Belt into fewer districts, but that also dilutes Black voters’ power by gerrymandering the state in other ways. And now it claims that its new maps must be upheld because they “unif[y] the Black Belt better than any of Plaintiffs’ proffered alternatives.”
Perhaps they do. But who cares? The Supreme Court did not rule in its June decision that Alabama must draw new maps that divide the Black Belt into fewer districts. It ruled that the state must draw new maps that include a second district where Black voters could elect their representative of choice.
Alabama barely even mentions its strongest possible argument
Another difficult-to-explain feature of Alabama’s latest Court filing is that it is 40 pages long, yet it devotes just one of those pages to an argument that Kavanaugh specifically said he would consider if a state raised it in defense of a legislative map that violates the Voting Rights Act.
Kavanaugh said at the end of his Milligan concurring opinion that the specific provision of the Voting Rights Act that invalidates Alabama’s gerrymandered maps “cannot extend indefinitely into the future.” This argument appears to track five Republican justices’ reasoning in Shelby County v. Holder (2013), which neutralized a different provision of the Voting Rights Act because they claimed that “the conditions that originally justified” that provision “no longer characterize voting in the covered jurisdictions.”
There are myriad differences, however, between Section 2 of the Voting Rights Act, the provision at issue in Milligan, and Section 5 of the law, which was at issue in Shelby County.
Section 5 required states with a history of racist election practices to “preclear” any new election-related laws with federal officials. The majority opinion in Shelby County characterized this provision as “extraordinary measures to address an extraordinary problem,” and it pointed to two factors that marked it as extraordinary: 1) It treated some states differently than others, and 2) it prevented many state laws from ever going into effect until they were screened by federal officials.
Neither of these factors exist in Milligan — or in any other lawsuit brought under Section 2, which applies in all 50 states, and which allows voting rights plaintiffs to sue to block state election laws after they have gone into effect.
In any event, Alabama’s brief discussion of Kavanaugh’s suggestion that Section 2 has a sunset date does not address any of these discrepancies between Milligan and Shelby County. Nor does it propose a specific sunset date or explain why “the conditions that originally justified” a federal ban on racial gerrymandering no longer exist — all arguments that might give Kavanaugh room to walk away from his previous vote, if Alabama bothered to make them.
Indeed, Alabama devotes so little time to this argument that it barely makes an argument at all. To the extent that it tries, it mostly likens requiring the state to draw a second Black district to “affirmative action,” and then concludes that “just as this Court held that ‘race-based’ affirmative action in education ‘at some point’ had to ‘end,’ the same principle applies to affirmative action in districting.”
Will that be enough to persuade Kavanaugh? Who knows? Justice Kavanaugh is a staunch conservative who typically votes with his fellow Republicans in voting rights cases, so maybe Alabama’s bare-bones argument will be enough for him.
But Alabama gives him precious little to work with, especially in a case where the Court already ruled against the state once.