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Federal court will ‘rule shortly’ on Alabama’s new congressional map

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Federal court will ‘rule shortly’ on Alabama’s new congressional map

Oct 03, 2023 | 1:33 pm ET
By Jemma Stephenson
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Federal court will ‘rule shortly’ on Alabama’s new congressional map
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The front of Hugo L Black Courthouse in Birmingham, Alabama on August 15, 2023. (Jemma Stephenson/Alabama Reflector)

A federal judge said Tuesday that a three-judge panel will “rule shortly” a new congressional map for the state of Alabama. 

The comment from U.S. Circuit Judge Stanley Marcus, on the panel alongside U.S. district judges Anna Manasco and Terry Moorer, came at the end of a 90-minute hearing in Birmingham where attorneys for the state; plaintiffs who successfully challenged congressional maps approved by the Legislature and other parties argued over which map would best suit Alabama. 

The court in 2022 ruled that a 2021 congressional map unconstitutionally put most of Alabama’s Black voters in a single congressional district. Citing Alabama’s racially polarized voting patterns, where white Alabamians tend to support Republicans and Black Alabamians tend to support Democrats, the court ordered the drawing of a second majority-Black district “or something quite close to it.”

The state took the case, known as Allen v. Milligan, up to the U.S. Supreme Court twice. The nation’s high court has twice affirmed the lower court orders. 

The three-judge panel last month directed Richard Allen, a special master in the case, to submit three potential maps to address the court order. Allen submitted one proposal (Remedial Plan 1) that creates two majority-Black congressional districts and two other plans (Remedial plans 2 and 3) that create a majority-Black district and a district with a Black Voting Age Population (BVAP) of at least 48.5%.

The proposals put the high BVAP areas in a 2nd Congressional district running from Mobile County in the southwest through the Black Belt, Montgomery County and the northern Wiregrass; and in a 7th Congressional District taking in Birmingham and the western Black Belt. 

‘The representation our clients are entitled to’

A map of Alabama divided into congressional districts.
Remedial map 1 proposed by Richard Allen, the special master in Alabama’s redistricting case. (U.S. 11th Circuit Court of Appeals)

Attorneys for the Milligan plaintiffs, repeating arguments made in briefs last week, told the judges Tuesday they prefer Remedial Plan 1, which has a BVAP of 50.1% in the 2nd district and 52.8% BVAP in the 7th. The Milligan plaintiffs object to Remedial Plan 2, which simulations suggested would create a 2nd district that would be harder for a Black candidate to win. The plaintiffs have no objection to Remedial Plan 3, which creates a 2nd district with a Black Voting Age Population of 48.7% and a 7th district with a BVAP of 51.9%. 

Milligan attorney Deuel Ross said after the hearing Tuesday and to the judges that they believed Remedial Plan 1 did the best job preserving communities of interest outlined by the court previously. 

“There’s never been two Black congressional districts and two Black members of Congress elected from Alabama (at the same time), and so our hope is that with this remedial plan that we finally have the representation that our clients are entitled to,” Ross said to reporters after the hearing.

Ross also referenced an amicus brief filed by the Brennan Center at New York University, which said that Plan 1 would best uphold with population loss. Marcus said that he was unaware of a legal precedent for predictive population loss in congressional districts, but Ross said the entire redistricting process relied on some degree of prediction.

Abha Khanna, an attorney for plaintiffs in a case known as Allen v. Caster, running parallel with Allen v. Milligan, told the court they were “agnostic” about Remedial Plans 1 and 3 and object to Remedial Plan 2, which has a BVAP of  48.5% and a 7th district with a BVAP of 52.8% The attorney said said that Remedial Plan 3 has less county splits than Remedial Plan 1.

“Perhaps Remedial Plan 3 is drawing the best consensus,” she said.

‘Choose it quickly’

A map of Alabama's congressional districts.
Remedial map 2 proposed by Richard Allen, the special master in Alabama’s redistricting lawsuit. (U.S. 11th Circuit Court of Appeals)

Alabama Secretary of State Wes Allen and legislative redistricting chairs Rep. Chris Pringle, R-Mobile and Sen. Steve Livingston, R-Scottsboro, objected to all three plans. But in nearly identical briefs filed last week, the officials said they had the strongest objection to Remedial Plan 1, the only plan creating two majority-Black districts, citing the splits in counties and communities of interest in the proposal.

Representing the state parties, Alabama Solicitor General Edmund LaCour cited the filed objections without explaining them in detail and asked the court to rule quickly. In response to questions from the judges, he said that all three maps did not perform as well in compactness to their map.

“Choose it quickly,” he said.

LaCour declined to comment after the hearing.

Henry Quillen, attorney for the Singleton plaintiffs, who challenged the state map on different grounds than the Milligan and Caster plaintiffs, said that they preferred their own map, but said they preferred Remedial Plan 3 because it does the best job preserving municipalities.

‘A social science experiment’

The Alabama Democratic Conference, a mostly-Black political group led by Joe Reed, a longtime power broker in the Alabama Democratic Party, objected to all three of the maps. Using 2022 election results, the ADC argued in a brief filed last week to describe a “white voter veto” potential in the proposed districts. Allen wrote in a response filed on Monday that the 2022 election was abnormal in a number of ways, including voter turnout, which did not make it the most representative of how that district could perform.

A map of Alabama divided into congressional districts.
Remedial map 3 proposed by special master Richard Allen in Alabama’s redistricting lawsuit. (U.S. 11th Circuit Court of Appeals)

Bryan Sells, attorney for the ADC, called the response from the special master to their critique a “back of the napkin” analysis. Sells said that Allen did not consider a number of factors, such as fundraising in previous years. 

The panel appeared unconvinced by this analysis. Manasco wanted to know which legal precedent Sells would be referencing in that line of argument.

“Our court is not at liberty to participate in a social science experiment,” she said.

John Park, an attorney for conservative writer Quin Hillyer, who submitted a proposed map, said Hillyer had mostly wanted to keep Mobile together. In the current plans, he mostly pushed back on Plan 2 for shapes that looked like potential gerrymandering and the use of a bridge to connect the district.

Park said that he couldn’t say anything about the demographics.

Both Manasco and Moorer pushed back on the question of bridges, with Park saying that the state has never used a bridge across a bridge to keep a contiguous district.

In response to a question from Marcus about any responses to the bridge argument, Khanna pushed back on any splits or hook shapes being racial gerrymanders. Ross said that water continuity is fine, and LaCour had no objections.

After the hearing, Evan Milligan, the lead plaintiff in Allen v. Milligan, said that the maps would not be the end of the road for fair representation.

“When we started in the fall of 2021, we didn’t really fully understand what we were signing up for, but we knew that we wanted to do something that will make the playing field more fair for Alabamians, for Black children in our communities, particularly in the central southern parts of the state, and doing that also opens up opportunities for everyone living in this state, and we feel that at this point in the journey, we’re closer to achieving that goal,” he said.