Alabama is again within the Supreme Court — to hunt the justices’ permission to openly defy one of many Court’s latest orders.
In June, the Supreme Court ordered Alabama to redraw its racially gerrymandered congressional map to incorporate a second district the place Black voters might elect their consultant of selection. This case is called Allen v. Milligan.
The determination was not notably ambiguous. Five justices voted to affirm a decrease courtroom determination, 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 determination with overt defiance — drawing a brand new map which, by the state’s personal admission, contains just one district, of seven whole, the place Black voters are prone to elect their chosen consultant. That’s identical to the outdated maps that have been struck down by the Supreme Court.
Under the brand new map, only one district has a Black majority. The district with the second-largest Black inhabitants is greater than 50 p.c white and fewer than 40 p.c Black.
There is a few danger that one key justice, Brett Kavanaugh, might flip his vote on this case. In June, when the Court handed down its determination ordering Alabama to redraw its maps, the vote was solely 5-4, with Chief Justice John Roberts and Kavanaugh becoming a member of the Court’s three liberal justices to kind a majority. Kavanaugh, nevertheless, wrote a separate opinion the place he recommended that he could be open to declaring a part of the Voting Rights Act, the federal legislation that prohibits race discrimination in elections, unconstitutional.
The oddest factor about Alabama’s newest transient to the justices, the place the state’s legal professionals ask the Court to bless Alabama’s defiance of the earlier Milligan determination, is that it barely discusses this constitutional argument. Instead, Alabama’s authorized group spends a merely astonishing period of time fixating on a particularly minor side of the case — how voters in Alabama’s “Black Belt” needs to be allotted among the many state’s congressional districts.
So Alabama’s newest request to the Supreme Court ought to go nowhere — if for no different cause than as a result of the Court would destroy its credibility if it reversed course only a few months after its June determination in Milligan.
Nevertheless, given this Supreme Court’s document of hostility towards the Voting Rights Act, there’s a non-zero probability that Alabama will prevail in its request to slide free from the Court’s June determination.
Alabama’s main argument in its new transient to the justices is laughably weak
In its newest Supreme Court submitting, Alabama’s authorized group spends a bewildering array of pages discussing the state’s “Black Belt,” a area named for the darkish colour of its unusually fertile soil, however which additionally has a excessive Black inhabitants.
The Black Belt is talked about just a few instances within the Court’s June Milligan opinion, however solely within the context of ancillary arguments that performed a really minor position within the Court’s strategy to this case. Yet, if you learn Alabama’s newest transient and nothing else, you’ll assume that this complete case activates the truth that the maps struck down in Milligan divided the Black Belt into 4 completely different congressional districts, whereas the brand new map solely divides it into two.
Under the Supreme Court’s determination in Thornburg v. Gingles (1986), a plaintiff alleging that racially gerrymandered maps violate the Voting Rights Act should clear three hurdles or their case is tossed out at an early stage within the litigation. Of these three hurdles, one is related to the present state of the case: Someone alleging {that a} state ought to have a further Black district should present that the Black inhabitants of the state is “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district.”
The function of this hurdle is to make the plaintiff exhibit that it’s really doable to attract a further Black district earlier than the lawsuit proceeds. If it isn’t doable to take action, then there is no such thing as a level in making a courtroom analyze the big selection of different components that it should contemplate earlier than figuring out if a legislative map is an unlawful racial gerrymander.
In any occasion, Gingles requires this hypothetical district to be “reasonably configured,” which means that it’s compact, contiguous, and in any other case comports with the standard standards that courts have regarded to prior to now when evaluating such maps. One of those conventional standards is that courts take a look at maps extra skeptically if they cut up up too many “communities of interest,” that are inhabitants teams which will share a typical historical past, ethnicity, social identification, or manner of creating a residing.
The first time Milligan went as much as the Supreme Court, Alabama argued that the plaintiffs’ proposed maps — once more, maps whose sole function was to show that it’s doable to attract a further Black congressional district in Alabama — weren’t moderately configured as a result of they didn’t preserve collectively the state’s Gulf Coast area, which the state’s legal professionals argued was a neighborhood of curiosity.
The Supreme Court rejected this argument, nevertheless, as a result of “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 those particulars are particularly necessary. In any given state, there will be many communities of curiosity. And any legitimate map is prone to cut up up a minimum of a few of them. The Court’s level in its June opinion was that maintaining the Gulf Coast area collectively was not a aim of such transcendent significance that it might justify drawing racially gerrymandered districts — particularly when the state’s authentic maps cut up up different communities of curiosity, such because the Black Belt.
In the wake of the June Milligan determination, the state drew a brand new map that does divide the Black Belt into fewer districts, however that additionally dilutes Black voters’ energy by gerrymandering the state in different methods. And now it claims that its new maps have to be upheld as a result of they “unif[y] the Black Belt better than any of Plaintiffs’ proffered alternatives.”
Perhaps they do. But who cares? The Supreme Court didn’t rule in its June determination that Alabama should draw new maps that divide the Black Belt into fewer districts. It dominated that the state should draw new maps that embrace a second district the place Black voters might elect their consultant of selection.
Alabama barely even mentions its strongest doable argument
Another difficult-to-explain function of Alabama’s newest Court submitting is that it’s 40 pages lengthy, but it devotes simply a kind of pages to an argument that Kavanaugh particularly mentioned he would contemplate if a state raised it in protection of a legislative map that violates the Voting Rights Act.
Kavanaugh mentioned on the finish of his Milligan concurring opinion that the precise provision of the Voting Rights Act that invalidates Alabama’s gerrymandered maps “cannot extend indefinitely into the future.” This argument seems to trace 5 Republican justices’ reasoning in Shelby County v. Holder (2013), which neutralized a unique provision of the Voting Rights Act as a result of they claimed that “the conditions that originally justified” that provision “no longer characterize voting in the covered jurisdictions.”
There are myriad variations, nevertheless, between Section 2 of the Voting Rights Act, the supply at concern in Milligan, and Section 5 of the legislation, which was at concern in Shelby County.
Section 5 required states with a historical past of racist election practices to “preclear” any new election-related legal guidelines with federal officers. The majority opinion in Shelby County characterised this provision as “extraordinary measures to address an extraordinary problem,” and it pointed to 2 components that marked it as extraordinary: 1) It handled some states in another way than others, and a pair of) it prevented many state legal guidelines from ever going into impact till they have been screened by federal officers.
Neither of those components exist in Milligan — or in another lawsuit introduced below Section 2, which applies in all 50 states, and which permits voting rights plaintiffs to sue to dam state election legal guidelines after they’ve gone into impact.
In any occasion, Alabama’s transient dialogue of Kavanaugh’s suggestion that Section 2 has a sundown date doesn’t tackle any of those discrepancies between Milligan and Shelby County. Nor does it suggest a selected sundown date or clarify why “the conditions that originally justified” a federal ban on racial gerrymandering now not exist — all arguments which may give Kavanaugh room to stroll away from his earlier vote, if Alabama bothered to make them.
Indeed, Alabama devotes so little time to this argument that it barely makes an argument in any respect. To the extent that it tries, it principally likens requiring the state to attract a second Black district to “affirmative action,” after which 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 sufficient to influence Kavanaugh? Who is aware of? Justice Kavanaugh is a staunch conservative who usually votes together with his fellow Republicans in voting rights circumstances, so perhaps Alabama’s bare-bones argument will be sufficient for him.
But Alabama offers him valuable little to work with, particularly in a case the place the Court already dominated in opposition to the state as soon as.