Alabama is again within the Supreme Courtroom — to hunt the justices’ permission to overtly defy one of many Courtroom’s current orders.
In June, the Supreme Courtroom 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 named Allen v. Milligan.
The choice was not significantly ambiguous. 5 justices voted to affirm a decrease courtroom resolution, which itself held that “the suitable treatment is a congressional redistricting plan that features both an extra majority-Black congressional district, or an extra district by which Black voters in any other case have a chance to elect a consultant of their selection.”
However, Alabama responded to this resolution with overt defiance — drawing a brand new map which, by the state’s personal admission, consists of just one district, of seven whole, the place Black voters are more likely to elect their chosen consultant. That’s identical to the outdated maps that had been struck down by the Supreme Courtroom.
Beneath 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 lower than 40 p.c Black.
There’s some danger that one key justice, Brett Kavanaugh, might flip his vote on this case. In June, when the Courtroom handed down its resolution ordering Alabama to redraw its maps, the vote was solely 5-4, with Chief Justice John Roberts and Kavanaugh becoming a member of the Courtroom’s three liberal justices to kind a majority. Kavanaugh, nonetheless, wrote a separate opinion the place he prompt that he may 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 temporary to the justices, the place the state’s attorneys ask the Courtroom to bless Alabama’s defiance of the earlier Milligan resolution, is that it barely discusses this constitutional argument. As a substitute, Alabama’s authorized workforce spends a merely astonishing period of time fixating on a particularly minor facet of the case — how voters in Alabama’s “Black Belt” ought to be allotted among the many state’s congressional districts.
So Alabama’s newest request to the Supreme Courtroom ought to go nowhere — if for no different motive than as a result of the Courtroom would destroy its credibility if it reversed course only a few months after its June resolution in Milligan.
However, given this Supreme Courtroom’s file 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 Courtroom’s June resolution.
Alabama’s main argument in its new temporary to the justices is laughably weak
In its newest Supreme Courtroom submitting, Alabama’s authorized workforce 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 Courtroom’s June Milligan opinion, however solely within the context of ancillary arguments that performed a really minor function within the Courtroom’s strategy to this case. But, for those who learn Alabama’s newest temporary and nothing else, you’d assume that this complete case activates the truth that the maps struck down in Milligan divided the Black Belt into 4 totally different congressional districts, whereas the brand new map solely divides it into two.
Beneath the Supreme Courtroom’s resolution 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 those three hurdles, one is related to the present state of the case: Somebody alleging {that a} state ought to have an extra Black district should present that the Black inhabitants of the state is “sufficiently massive and [geographically] compact to represent a majority in a fairly configured district.”
The aim of this hurdle is to make the plaintiff reveal that it’s truly doable to attract an extra Black district earlier than the lawsuit proceeds. If it’s not doable to take action, then there is no such thing as a level in making a courtroom analyze the big selection of different elements that it should think about earlier than figuring out if a legislative map is an unlawful racial gerrymander.
In any occasion, Gingles requires this hypothetical district to be “fairly configured,” which means that it’s compact, contiguous, and in any other case comports with the standard standards that courts have regarded to up to now when evaluating such maps. One in all these conventional standards is that courts have a look at maps extra skeptically in the event that they cut up up too many “communities of curiosity,” that are inhabitants teams that will share a typical historical past, ethnicity, social id, or approach of creating a residing.
The primary time Milligan went as much as the Supreme Courtroom, Alabama argued that the plaintiffs’ proposed maps — once more, maps whose sole objective was to show that it’s doable to attract an extra Black congressional district in Alabama — weren’t fairly configured as a result of they didn’t hold collectively the state’s Gulf Coast area, which the state’s attorneys argued was a neighborhood of curiosity.
The Supreme Courtroom rejected this argument, nonetheless, as a result of “even when the Gulf Coast did represent a neighborhood of curiosity,” the plaintiffs’ proposed maps “would nonetheless be fairly configured as a result of they joined collectively a special neighborhood of curiosity known as the Black Belt.”
None of those particulars are particularly essential. In any given state, there will probably be many communities of curiosity. And any legitimate map is more likely to cut up up at the very least a few of them. The Courtroom’s level in its June opinion was that maintaining the Gulf Coast area collectively was not a purpose 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.
Within the wake of the June Milligan resolution, 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 higher than any of Plaintiffs’ proffered options.”
Maybe they do. However who cares? The Supreme Courtroom didn’t rule in its June resolution that Alabama should draw new maps that divide the Black Belt into fewer districts. It dominated that the state should draw new maps that embody a second district the place Black voters might elect their consultant of selection.
Alabama barely even mentions its strongest doable argument
One other difficult-to-explain characteristic of Alabama’s newest Courtroom submitting is that it’s 40 pages lengthy, but it devotes simply a type of pages to an argument that Kavanaugh particularly stated he would think about if a state raised it in protection of a legislative map that violates the Voting Rights Act.
Kavanaugh stated on the finish of his Milligan concurring opinion that the particular provision of the Voting Rights Act that invalidates Alabama’s gerrymandered maps “can’t lengthen indefinitely into the long run.” This argument seems to trace 5 Republican justices’ reasoning in Shelby County v. Holder (2013), which neutralized a special provision of the Voting Rights Act as a result of they claimed that “the circumstances that initially justified” that provision “not characterize voting within the lined jurisdictions.”
There are myriad variations, nonetheless, between Part 2 of the Voting Rights Act, the supply at difficulty in Milligan, and Part 5 of the legislation, which was at difficulty in Shelby County.
Part 5 required states with a historical past of racist election practices to “preclear” any new election-related legal guidelines with federal officers. The bulk opinion in Shelby County characterised this provision as “extraordinary measures to handle a rare downside,” and it pointed to two elements that marked it as extraordinary: 1) It handled some states otherwise than others, and a pair of) it prevented many state legal guidelines from ever going into impact till they had been screened by federal officers.
Neither of those elements exist in Milligan — or in every other lawsuit introduced below Part 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 temporary dialogue of Kavanaugh’s suggestion that Part 2 has a sundown date doesn’t handle any of those discrepancies between Milligan and Shelby County. Nor does it suggest a particular sundown date or clarify why “the circumstances that initially justified” a federal ban on racial gerrymandering not exist — all arguments which may give Kavanaugh room to stroll away from his earlier vote, if Alabama bothered to make them.
Certainly, Alabama devotes so little time to this argument that it barely makes an argument in any respect. To the extent that it tries, it largely likens requiring the state to attract a second Black district to “affirmative motion,” after which concludes that “simply as this Courtroom held that ‘race-based’ affirmative motion in schooling ‘sooner or later’ needed to ‘finish,’ the identical precept applies to affirmative motion 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 instances, so perhaps Alabama’s bare-bones argument will probably be sufficient for him.
However Alabama provides him valuable little to work with, particularly in a case the place the Courtroom already dominated in opposition to the state as soon as.
