Alabama appeals congressional map ruling to US Supreme Court

Alabama officials Wednesday filed an emergency application to the U.S. Supreme Court, asking the justices to block a lower court’s order requiring the state to use a court-ordered congressional map in the 2026 midterm elections.

The filing came a day after a three-judge panel upheld a previous ruling that a congressional map passed by the Legislature in 2023 was intentionally racially discriminatory, and unconstitutional under Section 2 of the Voting Rights Act. 

In the 36-page application, Alabama Attorney General Steve Marshall, who represents Allen in the case, argues that the state should be able to use the 2023 map in this year’s elections so that “Alabama is not again precluded from using its legislatively enacted 2023 Plan based on a decision that defies Callais, manipulates the Purcell principle, and offends the Constitution’s promise of equal protection for all.”

Deuel Ross, an attorney for the plaintiffs with the NAACP Legal Defence Fund, said in a statement Wednesday afternoon that there is no time to implement a new map.

“Alabama’s 2023 plan is an intentional race-based effort to deny Black people fair representation in Congress,” he said. “We remain hopeful that the Court will do the right thing by leaving in place the remedial map and avoiding further confusion ahead of the 2026 elections.

Marshall requested a decision from the Supreme Court no later than June 1 at 10 a.m. in order for the state to administer the 2026 elections under the 2023 map. Supreme Court Justice Clarence Thomas gave the plaintiffs until Monday at 4 p.m. to file a response to the application. 

 Alabama Director of Elections Jeff Elrod testified on Friday that voter rolls will be unlocked between Wednesday and June 2. 

Currently, voters are assigned to congressional districts in the court-ordered map, which was used in the 2024 election and in the May 19 primary. Elrod testified that it usually takes “several months” to reassign voters and an expedited schedule could lead to voters being assigned to incorrect districts and being given incorrect ballots. 

While the three-judge panel held that the state’s map is racially discriminatory, the state argues that the map was drawn with partisan intentions. 

“In addition to citing traditional districting principles and political goals, legislators defending the 2023 Plan explained that it had been ‘drawn in a partisan way’ to ‘benefit Republicans,’ and that it gave a better ‘opportunity for the Republicans to win,’” the brief said, quoting lawmakers from the 2026 Special Session.

The judges said in their order Tuesday that the evidence through the years-long litigation showed no such intention. They also said that anything said during the 2026 Special Session was not relevant to the redistricting case because the session addressed a mechanism for a special primary election, not redistricting. 

State officials claimed in the filing that it disobeyed the lower court’s order to redistrict without racially discriminating because it did not want to racially discriminate and split communities of interest like the Black Belt and the Gulf Coast.

“Worse, the district court doubled down on its constitutional holding that finds no home in our Constitution: that Alabama intentionally discriminated by refusing to intentionally discriminate. The district court faulted the State for denying ‘opportunity’ to minority voters and ‘diluting’ votes without once acknowledging how Callais itself refuted the district court’s pre-Callais holding on that score,” the brief said. “It cannot be that the only constitutional map for the State to have drawn this redistricting cycle was one where white voters are drawn into white districts and given white representatives and Black voters ‘drawn into ‘Black districts’ and given ‘Black representatives,’’ a scheme ‘repugnant’ to the Constitution itself.”

The three-judge panel in its order Tuesday said that they were unaware of any case “in which a legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a remedy that provides an additional opportunity district — responded with a plan that the state conceded did not provide that district.”

Marshall said in a statement Wednesday afternoon that the three-judge panel required the state to sort voters by race, not the Legislature. 

“The extent to which there is confusion about the maps which Alabama uses for congressional districts seems to be with the three-judge panel, not the voters. The fact that our State’s conservative electorate has conservative representation is democracy, not an attack on it,” Marshall said. 

He also said that the state should have a congressional map with seven Republican districts, something other Republican lawmakers and officials have advocated for since the Callais ruling in April,saying it reflects Alabama’s voters and complies with the Supreme Court’s ruling in Callais.”

Alabama’s electorate is racially polarized, with white Alabamians, who make up about 64% of the population, tending to vote for Republicans and Black Alabamians, who make up about 27% of the population, tending to vote for Democrats.

A message seeking comment from Gov. Kay Ivey was left Wednesday afternoon. 

The three-judge panel’s preliminary injunction requires the state to use its map for the 2026 election, but expires once the Legislature adopts a new map. Should the Supreme Court grant the stay, the state would be legally free to redistrict, though districts are typically drawn once every 10 years after the U.S. Census. However, a wave of mid-decade redistricting for partisan gain has swept the nation. 

In the Callais decision, the Supreme Court ruled that racial discrimination with intent does violate Section 2 of the Voting Rights Act, but redistricting in the name of party does not. Texas, California, South Carolina, Tennessee, Florida and Virginia have either redistricted to give either party more guaranteed congressional seats in the 2026 midterm elections, or are in the process of doing so. Georgia will also redistrict, but not in time for the 2026 midterm elections.

Marshall also asked the Supreme Court for an administrative stay as soon as possible so that elections could proceed as planned. There is a special primary election set for Aug. 11 under the 2023 map in the 1st, 2nd, 6th and 7th congressional districts with 21 qualified candidates. 

Votes cast in those districts in the May 19 primaries were voided, so there must be an election for those districts. It is unclear which map the election will be conducted under. 

National Support

John Sauer, the Solicitor General of the United States, filed a brief in support of Alabama officials Wednesday afternoon, urging Thomas to grant the stay. Sauer supported Marshall’s claims that the redistricting efforts were for partisan gains, not racial discrimination.

“A state’s insistence on pursuing its partisan goals in the face of an earlier Section 2 holding does not somehow make those partisan goals racially discriminatory,” Sauer wrote. “In any event, Alabama sought in good faith to correct the disparate treatment of two communities of interest – the Gulf Coast and the Black Belt – that was the premise of this Court’s pre-Callais holding in Allen v. Milligan that an earlier map violated Section 2. That legitimate effort to comply with this Court’s decision cannot be reasonably construed as racial discrimination, particularly in light of the presumption of good faith.”

In the 29-page brief, Sauer blamed the district court for the timing issue. The district court was instructed by the Supreme Court to reevaluate its previous ruling, which the Supreme Court agreed with, in light of Callais on May 11. An expedited motions and hearing schedule was set, and the preliminary injunction was ordered on Tuesday, less than four weeks after the Supreme Court ruled on Callais. 

“The court excused that clear violation of Purcell, on the theory that Alabama had created the timing problem by deciding to use the 2023 map only after Callais, even though the state acted as soon as it could once this court vacated the prior injunction in light of Callais,” Sauer wrote.

Both the three-judge panel and Supreme Court Justice Samuel Alito, who wrote the Callais opinion, say that Alabama and Louisiana’s cases are different. Sauer disagrees, writing that Alabama’s goal of protecting incumbents is the same tactic used in Louisiana under Callais.

“Alabama’s Republican-led state legislature had an obvious partisan interest in maintaining its 6-1 Republican map even if it might have preferred a 7-0 map even more. By forcing Alabama to instead use a 5-2 map that ousted a Republican incumbent in 2024, the district court subordinated the state’s partisan goals,” he wrote.

This story was updated at 4:23 p.m. to include a statement from Deuel Ross, an attorney for the plaintiffs with the NAACP Legal Defense Fund. It was later updated at 4:39 p.m. to include details that the U.S. Solicitor General filed a brief in support of Alabama officials. It was later updated at 4:44 p.m. to correct that the plaintiffs have until Monday at 4 p.m. to respond, not 1 p.m.