Alabama Republicans’ New Redistricting Map May Parlay SCOTUS Voting Rights Act Loss Into Seat Pick Up

Alabama Republicans’ New Redistricting Map May Parlay SCOTUS Voting Rights Act Loss Into Seat Pick Up

The popular narrative of Alabama’s loss in the U.S. Supreme Court on a Voting Rights Act challenge to its Republican-drawn redistricting map was that SCOTUS required the drawing of two majority black districts.

Not having dug deeply into the SCOTUS decision and the district court decision it affirmed in full, I had that impression as well. So it shocked me when, in an interview on an Alabama radio show the host suggested the possibility a new map may end up with Republicans picking up the one currently-Democrat seat. I wrote about it on July 1, 2023, Democrats’ Voting Rights Act ‘Win’ In Alabama May Backfire, Set Up Republican Congressional Sweep:

Since I still don’t know much about Alabama politics, I still can’t assess the likelihood of the Democrats’ SCOTUS Voting Rights Act win costing them a congressional seat in Alabama. But now I’m intrigued.

Today the Alabama legislature adopted a new map, which needs to be submitted to and approved by the District Court three-judge panel whose opinion was affirmed by SCOTUS.

✍️: I have signed SB5, the redistricting map. View my full statement below. ⬇️ #alpolitics pic.twitter.com/tevS8kQJYU

— Governor Kay Ivey (@GovernorKayIvey) July 21, 2023

The map has Democrats crying foul:

The Alabama Legislature passed a new congressional district map Friday, a compromise version approved by Republicans on a conference committee.

Like earlier versions of maps supported by the Republican majority in the State House, it does not add a second majority Black district.

In June, the U.S. Supreme Court affirmed a three-judge district court ruling that Alabama’s current map likely violates the Voting Rights Act by diluting the Black vote.

One-fourth of the state’s residents are Black, but only one of the seven Congressional districts has a majority Black population. The district court said that to fix the violation, Alabama needed a second majority Black district “or something quite close to it,” a district where Black voters would have an opportunity to elect a candidate of their choice.

The map approved by the conference committee Friday would leave District 7 as the lone majority Black district, barely, at 51% in Black voting age population, down from 56% on the current map. It would increase the Black voting age population in District 2, which covers southeast Alabama, from 30% to 40%.

Sen. Steve Livingston, R-Scottsboro, sponsor of the plan, said the intent is for District 2 to be the second “opportunity” district for Black voters.

Rep. Chris England, D-Tuscaloosa, a member of the conference committee, said the plan does not comply with the court’s order.

“This is the quintessential definition of noncompliance and I believe it will be rejected,” England said.

So is it in non-compiance? Maybe not. The Supreme Court didn’t draw a new map, though it did strongly suggest there were proposed maps that would have crated two black-majority districts that the legislature should have considered. But technically, SCOTUS simply affirmed the District Court’s Order, which contained this ruling (Caster case, emphasis added):

Because the Caster plaintiffs are substantially likely to prevail on their claim under the Voting Rights Act, under the statutory framework, Supreme Court precedent, and Eleventh Circuit precedent, 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. See, e.g., Bartlett v. Strickland, 556 U.S. 1, 24 (2009); Cooper v. Harris, 137 S. Ct. 1455, 1470, 1472 (2017). Supreme Court precedent also dictates that the Alabama Legislature (“the Legislature”) should have the first opportunity to draw that plan. See, e.g., North Carolina v. Covington, 138 S. Ct. 2548, 2554 (2018); White v. Weiser, 412 U.S. 783, 794–95 (1973).

The Legislature enjoys broad discretion and may consider a wide range of remedial plans. As the Legislature considers such plans, it should be mindful of the practical reality, based on the ample evidence of intensely racially polarized voting adduced during the preliminary injunction proceedings, that any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.

(That same language was in the three-judge injunction in the Milligan case).

Get that? Two black-majority districts were not required, and Republicans say their new map complies with the “something quite close to it” requirement, as the NY Times reports:

Republicans defended their map as a satisfactory adjustment, arguing that it kept areas and counties together that share similar economic and geographic priorities and that candidates preferred by Black voters could win in either of the districts whose boundaries they adjusted. They focused on a line in a lower-court ruling that suggested the possibility of creating “an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice,” insisting that they had done so.

With a bare 51% black majority in one district, it’s not inconceivable that the Democrat will lose, and Democrats also will lose the 40% black district. If the share of black votes that go to Democrats drop, then it’s done. But even assuming traditional voting percentages, such a bare minimum in one district could cost Democrats the seat depending on turnout.

So, it pays to listen to people with local knowledge. What appears to be isn’t always.

Needless to say, there is more litigation to follow.

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