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Court Rejects Alabama Request To Pretty Please Let It Keep Using Racial Gerrymanders Forever

The Southern strategy.

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AlabamaWhat’s worse than a pissed off federal judge?

A panel of three pissed off federal judges

What’s worse than that?

A pissed off panel backed up by a Supreme Court decision.

“It is exceptionally unusual for a litigant who has presented his arguments to the Supreme Court once already — and lost — to assert that he is now ‘overwhelmingly likely’ to prevail on those same arguments in that Court in this case,” Judges Stanley Marcus, Anna Manasco, and Terry Moorer wrote this afternoon, adding that “The Secretary’s assertion that he is ‘overwhelmingly’ likely to prevail on appeal is as bare as it is bold: it comprises only three sentences crafted at the highest level of abstraction with virtually no citations.”

This vicious benchslap was directed at Alabama Secretary of State Wes Allen, the named defendant in the voting rights case Milligan v. Allen, who kicked the hornets nest last week with an emergency motion to stay the panel’s order redrawing the state’s electoral maps.

This case has dragging on for years, culminating in a Supreme Court ruling in June upholding Section 2 of the Voting Rights Act and ordering Alabama to create a second Black Opportunity District in which its African American residents could have a realistic opportunity of electing the candidate of their choice. The decision was thanks to Justice Kavanaugh, who last year enjoined the use of fair maps for the 2022 cycle, reasoning that January was too close to a November election to force the state to redraw its maps. But this year, he switched his position, joining Chief Justice Roberts and the Court’s three liberals to uphold the last remnant of the VRA.

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With Kavanaugh’s reversal, the case was returned to the trial panel to oversee compliance with its two-year-old ruling. Accepting Allen’s October 2023 deadline to redraw maps for the 2024 election, the judges ordered the legislature to spend July enacting a legally compliant redistricting plan. Instead, the politicians produced another set of maps without a second Black seat, in direct defiance of the court.

“Following the U.S. Supreme Court order, I called the Alabama Legislature into a special session to readdress our congressional map,” Governor Kay Ivey said as she signed onto the plan. “The Legislature knows our state, our people and our districts better than the federal courts or activist groups, and I am pleased that they answered the call, remained focused and produced new districts ahead of the court deadline.”

The panel was not amused, and last week issued an injunction, noting incredulously that “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.”

The court deputized a special master to oversee the creation of legally compliant maps, which Allen immediately appealed, first to the Eleventh Circuit, and then to the Supreme Court. He also asked the panel to stay its redistricting order, lest Alabamians be irreparably harmed by having to surrender their beloved racial gerrymanders. Heritage not hate!

“We are aware, however, of no other case — and the Secretary does not direct us to one — in which a state legislature, faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district, responded with a plan that the state concedes does not provide that district,” the judges responded, noting that the legislators who drafted the illegal maps have neither appealed nor asked for a stay of the redistricting order.

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“As a practical matter, the Legislators’ silence undermines the Secretary’s position,” they note dryly.

Not that this lack of legal action saved the state’s elected officials from the panel’s glower: The judges professed themselves to be “deeply troubled that the State enacted a map that the Secretary readily admits does not provide the remedy we said federal law requires” and “disturbed by the evidence that the State delayed remedial proceedings but did not even nurture the ambition to provide that required remedy.”

Allen’s argument that taking race into account violates the Supreme Court’s decisions with respect to affirmative action in higher education also provoked substantial ire.

“The Voting Rights Act does not provide a leg up for Black voters — it merely prevents them from being kept down with regard to what is arguably the most ‘fundamental political right,’ in that it is ‘preservative of all rights’ — the right to vote,” the judge wrote, scoffing at the Secretary’s suggestion that the VRA somehow requires proportional racial representation.

“The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice,” the order concludes, “Without further delay.”

And assuming Justice Kavanaugh can stomach the imposition of fair maps a mere 14 months before an election, that should be the end of that.

Milligan v. Allen [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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