Federal court declines to dismiss Alabama redistricting case after South Carolina ruling

The U.S. Supreme Court’s recent rejection of a challenge to to South Carolina’s congressional map will not impact Alabama’s ongoing redistricting battles for now.

The three-judge panel overseeing the legal battle in Allen v. Milligan, which led to the creation of two congressional districts in Alabama with majority or near-majority Black populations, last week rejected a motion from the Alabama Secretary of State to dismiss the case.

The state filed the motion prior to the U.S. Supreme Court’s ruling in Alexander v. South Carolina State Conference of NAACP, which upheld a congressional map challenged in part on grounds of racial discrimination, Alabama officials moved to use the ruling as a supplemental authority. Attorneys representing the Milligan plaintiffs attempted to have Alexander excluded, writing that it was “not a good faith attempt.” The three-judge panel allowed the case to be used, but denied the state’s motion to dismiss.

Alexander and Milligan are different cases. In Alexander, involving allegations of gerrymandering in the creation of South Carolina’s congressional map, the South Carolina Conference of the NAACP alleged the Republican-controlled Legislature moved tens of thousands of Black voters out of a congressional district, making it safer for Republicans, according to Oyez.

The U.S. Supreme Court ruled that the case was a political gerrymander, and not a racial one.

“The plaintiff must show that the State’s districting plan ‘has the purpose and effect’ of diluting the minority vote,” wrote Justice Samuel Alito in a 6-3 opinion that split the court on ideological lines.  “In light of these two errors in the District Court’s analysis of the Challengers’ vote-dilution claim, a remand is appropriate.”

The plaintiffs in Alabama’s Milligan case alleged that the Alabama Legislature in 2021 unconstitutionally packed Black voters into a single congressional district, limiting their ability to select their preferred leaders.

Deuel Ross, the deputy director of litigation at the NAACP Legal Defense and Educational Fund and an attorney representing the Milligan plaintiffs, said Friday that the Alexander case was different from Alabama because it was based on a racial gerrymander for a majority white district; wasn’t a Voting Rights Act claim; and didn’t have the same facts or allegations at issue.

“From our perspective, doesn’t have any bearing on it, which is why we filed the motion to strike,” he said.  ”The only thing the court said with respect to it and the motion to dismiss was that the Legislature is entitled to a presumption of good faith.”

Michael Li, senior counsel for the Brennan Center’s democracy program, said the South Carolina decision could create obstacles.

“The South Carolina decision at a minimum means that there are more hoops to jump through, and depending on how courts apply it, it could make succeeding in these claims harder,” he said. “But I think the Alabama case will be a big test of what it actually means in practice.”

An ongoing case

The Alabama court’s ruling covered the cases of Allen v. Milligan and Allen v. Singleton, a similar case. A third case, Caster, was only a part of the Thursday filing to the extent that it overlapped with the other two cases.

The U.S. Supreme Court last summer upheld the panel’s order that Alabama needed to draw two new congressional districts where Black voters had an “opportunity” to choose their preferred representatives.  The Alabama Legislature drew new maps that the panel deemed unacceptable. The judges hired a special master to draw new maps. The state appealed to the U.S. Supreme Court, which refused to take up the case.

After the lower court panel of three federal judges deemed those new maps also unacceptable, the court put new maps in place for the duration of proceedings.

The map maintained a majority-Black district, the 7th, represented by U.S. Rep. Terri Sewell, D-Birmingham. That district, taking in parts of Birmingham and most of the western Black Belt, has been majority-Black since 1992.

It also created a new 2nd Congressional District, running from Mobile across the southern Black Belt to the Georgia border, with a near-majority Black population. Attorney Shomari Figures, a Democrat, and attorney Caroleene Hobson, a Republican, are running in the general election for the seat in November.

The court has yet to make a final judgment on the case.

Alexander

A lower court originally ruled in favor of the Alexander plaintiffs, and said the South Carolina Legislature’s action was an unconstitutional gerrymander, according to Oyez.

But Alito wrote that the plaintiffs only provided weak circumstantial evidence that South Carolina’s maps had been drawn as a racial gerrymander and failed to show an alternate map where political objectives could have been achieved with more racial balance.

In a concurring in-part opinion, Justice Clarence Thomas questioned the court’s role in addressing racial gerrymandering claims. Justice Elena Kagan’s dissent, joined by the other liberal judges, wrote that the court was providing permission for actors to “straight-up suppress the electoral influence of minority voters.”

Kagan wrote that the Supreme Court has historically deferred to the lower courts as the factfinders because trial courts are “fact-finding specialists.” She accused the majority of reciting a clear-error standard and then ignoring it.

“The clear-error standard tells us that when we disagree with a trial court’s view of the facts, we are the ones likely to be wrong,” she wrote. “So we should make triple sure that we are correcting, not creating, an error before we reverse.”

An impact?

While the three-judge panel allowed the motion to include the case, legal experts Friday said that Alexander might not have a big impact on the rest of the proceedings.

Li said in a phone interview Friday that Alabama will be among the cases where everyone learns how the Alexander decision will operate in practice.

“You’re doing the hurdles in the Olympics, and they decided to add some hurdles at the end, and maybe you get over those or you don’t, but you’re expecting to jump over 10 hurdles and now there’s 15 hurdles,” he said.

Nicholas Stephanopoulos, professor of law at Harvard Law School, wrote in an email Friday that Alexander would only be “marginally relevant” in the case for a dismissal because he doesn’t believe that Alabama is relying on a partisan defense.

“How to deal with a partisan defense to a racial gerrymandering claim was the principal issue in Alexander,” he wrote. “And even if Alabama did offer partisanship as a justification, that’s not a trump card that warrants immediate dismissal. The court would still have to scrutinize the facts to decide if partisanship actually predominated over race.”

Stephanopoulos, who said he had not read the court’s ruling closely, said in a Friday phone call that Alabama’s case is more based on Section 2 of the Voting Rights Act — banning racially discriminatory voting and election practices — rather than a constitutional claim. He said that was a better option for the plaintiffs.

“This is mainly not a constitutional case,” he said. “This is mainly a Section 2 Voting Rights Act case. That’s the only issue the Supreme Court addressed. That’s the only issue the lower court has addressed earlier in the case, and Alexander has nothing to do with Section 2, and so it’s not surprising that Alexander in no way affects the court’s thinking about Section 2.”

He said, even on constitutional and gerrymandering issues, Alexander makes it harder but not impossible.

He also said that the idea of legislative good faith, which while not a holding did permeate the opinion, mattered more in the cases of these constitutional claims, which are based more on intent, than in the Voting Rights Act.

“What is kind of new in Alexander is using this assumption of legislative good faith as a reason to basically break every tie in favor of the legislature,” he said.

Li said that the court could also sidestep the question of Alexander altogether because the plaintiffs have claims other than racial gerrymandering.

“You have to draw a map with six Republican districts that doesn’t sort of excessively split Jefferson County, for example, then that becomes harder to do,” he said.

Li said that alternative map requirements for cases where the same objectives are met without using race as a predominant factor is more complicated in the South because race and politics tend to be aligned.

Neither expert was surprised to see that the court did not dismiss the Milligan case.

“The standard for a motion to dismiss is basically, if there’s no way that the plaintiffs can win, then you dismiss,” said Li. “An example would be if you filed a suit and said my sister was mean to me. Right, it might be true, but there’s not a legal claim there.”

Stephanopoulos said that the “writing is really on the wall” that the Legislature’s maps are illegal.

“There’ll be another fight over remedies and things like that,” he said. “But  at this point, it’s utterly unsurprising for the plaintiffs to win in this case.”

Attorneys for the Milligan and Singleton plaintiffs said Friday that they did not think that the Alexander ruling would have much impact on the case.

James Blacksher, attorney for the Singleton plaintiffs, said that the Singleton case is supported by Alexander because they contend there is still a constitutional duty to provide two opportunity districts if the Voting Rights Act decision does not stand , but they support the Voting Rights Act preliminary injunction.

“The Singleton plaintiffs have from the beginning, been asserting constitutional claims, which are, if you will, a backstop in the event that the Voting Rights Act claims are reversed on appeal, and the Alexander case supports the Singleton plaintiffs’ constitutional claim that one the state cannot constitutionally continue dividing Jefferson County along racial lines to perpetuate the majority Black district that was first drawn in 1992 to comply with the Voting Rights Act,” he said.

Blacksher said that if the Voting Rights Act can no longer support dividing Jefferson County, then the Singleton plaintiffs have alternative maps with opportunity districts.

A message seeking comment was left with the Alabama attorney general’s office, which is defending the Legislature’s maps in court.

In a Friday filing, the three-judge panel moved to quash a subpoena that would have required a consulting group to turn over documents related to the map drawing but the court ruled that legislative privilege applied. A message was left with Red State Strategies Friday afternoon.