Alabama Congressional Redistricting Back To The Drawing Board, Court Throws Out Legislative Map Again

Alabama Congressional Redistricting Back To The Drawing Board, Court Throws Out Legislative Map Again

A three-judge panel has thrown out Alabama’s congressional district map that was recently redrawn by the legislature after a trip to the Supreme Court. The redrawn map maintained the one majority Black district but only by a 51% majority Black voting age population, down from 56%, but it also increased the Black voting age population in another district from 30% to 40%. The issue was whether that complied with a prior three-judge panel ruling affirmed by the Supreme Court.

We covered it in, 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….

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 ….

Needless to say, the map went back to the three-judge panel, which found it not in compliance, referring the matter to an expert to be appointed by the court to redraw the map yet again. From the 196-page Opinion:

The Milligan and Caster Plaintiffs argue that the 2023 Plan did not cure the unlawful vote dilution we found because it did not create a second district in which Black voters have an opportunity to elect a candidate of their choice (an “opportunity district”). Milligan Doc. 200 at 16–23; Caster Doc. 179 at 8–11. Separately, the Milligan and Singleton Plaintiffs argue that the 2023 Plan runs afoul of the U.S. Constitution. The Milligan Plaintiffs contend that the State intentionally discriminated against Black Alabamians in drawing the 2023 Plan, in violation of the Equal Protection Clause of the Fourteenth Amendment. Milligan Doc. 200 at 23–26. And the Singleton Plaintiffs argue that the 2023 Plan is an impermissible racial gerrymander — indeed, just the latest in a string of racially gerrymandered plans the State has enacted, dating back to 1992. Singleton Doc. 147 at 13–27….

The State concedes that the 2023 Plan does not include an additional opportunity district. Indeed, the State has explained that its position is that notwithstanding our order and the Supreme Court’s affirmance, the Legislature was not required to include an additional opportunity district in the 2023 Plan. Aug. 14 Tr. 159–64. That concession controls this case. Because the 2023 Plan does not include an additional opportunity district, we conclude that the 2023 Plan does not remedy the likely Section Two violation that we found and the Supreme Court affirmed. We also conclude that under the controlling Supreme Court test, the Milligan Plaintiffs are substantially likely to establish that the 2023 Plan violates Section Two….

Under the Voting Rights Act, the statutory framework, and binding precedent, the appropriate remedy is, as we already said, a congressional districting plan that includes either an additional majority-Black 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) (plurality opinion); Cooper v. Harris, 581 U.S. 285, 306, (2017). We discern no basis in federal law to accept a map the State admits falls short of this required remedy….

Based on the evidence before us, including testimony from the Legislators, we have no reason to believe that allowing the Legislature still another opportunity to draw yet another map will yield a map that includes an additional opportunity district. Moreover, counsel for the State has informed the Court that, even if the Court were to grant the Legislature yet another opportunity to draw a map, it would be practically impossible for the Legislature to reconvene and do so in advance of the 2024 election cycle. Accordingly, the Special Master and cartographer are DIRECTED to commence work forthwith on a remedial map….

But Alabama isn’t giving up just yet:

By order of the court, responsibility for redrawing the map now moves to a court-appointed special master, who has until September 25 to propose three alternative maps for the court’s consideration. The parties then will have three days to submit comments and objections to the maps, with a court hearing on objections on October 3. An order adopting a court-approved remedial map should follow shortly, just in time for the 2024 election cycle.

But Alabama officials aren’t going gently into the night. Parallel to the redrawing of the map, Alabama is pursuing yet another appeal to the Supreme Court. An appeal challenging the remedial map adopted by the court is also likely. More critically, Alabama will again be asking the Supreme Court to put the three-judge panel’s ruling, and any new map, on hold pending resolution of appeals.

It’s hard to see SCOTUS intervening at this point. So there likely will be a new map, and if it nets Democrats another seat, it could impact control of the House of Representatives. That’s really what’s going on here, a partisan fight over a congressional seat under the guise of an alleged Voting Rights Act violation.

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