Milligan plaintiffs: Alabama defying federal redistricting orders

Attorneys for plaintiffs challenging Alabama’s congressional maps Tuesday accused the state of defying federal court orders to draw a second opportunity district for Black voters.  

In a 51-page brief filed with the U.S. Supreme Court, the attorneys asked the justices to reject a request from the state to stay a special master from drawing new congressional maps, arguing that Alabama Secretary of State Wes Allen’s “old, failed” attempts to overturn Section 2 of the Voting Rights Act and “reverse-engineered” justifications for a map approved by the Legislature in July map do not warrant a delay.

“Remedying that violation requires creating a second district in which Black Alabamians would have that opportunity,” wrote the attorneys. “Yet the Alabama Legislature never even attempted to do this. The Secretary’s concession that the Legislature’s 2023 Plan lacks such a district begins and ends this appeal.”

Attorneys for the state want the U.S. Supreme Court to stay a three-judge panel’s ruling earlier this month that the July map failed to address Voting Rights Act violations. In a filing last week, attorneys for the state argued that their map better protected “communities of interest” and that the court-ordered remedy amounted to “racial stereotyping.” 

“The question now is a different one: whether a State must sacrifice traditional districting criteria to join voters from different communities, based on their race, to hit a 50-percent racial target, ‘or something quite close to it,’” the state filing said.

In January 2022, U.S. Circuit Judge Stanley Marcus and U.S. district judges Anna Manasco and Terry Moorer ruled that Alabama had likely violated the Voting Rights Act by packing a large number of Black voters into a single district. Citing racially polarized voting patterns in Alabama, the judges wrote that Alabama should have another majority Black district or “something quite close to it.” 

The state had appealed this decision to the Supreme Court. The Supreme Court granted a stay that February which left the maps in place for the 2022 election, but upheld the three-judge panel’s ruling in June.

In July, the Alabama Legislature approved a new map with a district that was  50.65% Black and another district that was just under 40% Black. In addition, the Alabama Legislature also passed a series of findings that were meant to guide redistricting. Some of these findings include compactness, “communities of interest” and county splits.

The guidelines identified the Black Belt, the Wiregrass and the coast counties of Mobile and Baldwin as communities of interest, and made keeping those counties together a priority. The state has argued that none of the plaintiffs’ maps are better on these traditional redistricting criteria.

“No court could have concluded Plaintiffs’ old maps were ‘reasonably configured’ when every one of them split the Black Belt into more districts than the 2023 Plan, split the Gulf Coast counties, split the Wiregrass counties, and had more sprawling districts, more county splits, or both,” wrote the state in their appeal.

The federal courts have so far rejected arguments from the state that those concerns made prospective maps from plaintiffs splitting Mobile and Baldwin County unconstitutional. Writing in June, Chief Justice John Roberts wrote that “even if the Gulf Coast did constitute a community of interest,” the plaintiffs’ maps “would still be reasonably configured because they joined together a different community of interest called the Black Belt.”

Attorneys for the plaintiffs argued in the brief on Tuesday that the new findings were a way to justify their violations.

“Even though this Court affirmed the district court’s order in full, Alabama refused even to try to comply with that order and enact the required remedy,” wrote the attorneys. “Instead, the Legislature ignored the injunction, backed a plan drawn by an unknown map drawer, adopted reverse-engineered ‘findings’ drafted by the Alabama Solicitor General, then claimed that these unprecedented ‘findings’ compelled the dilutive 2023 plan. Alabama’s open defiance of this Court should be condemned, not rewarded with a stay.”

The plaintiffs also said that Alabama’s argument rests on trying to renegotiate the core of Section 2 of the Voting Rights Act, which bans discriminatory voting laws and practices.

“The ‘heart’ of Alabama’s appeal, this Court noted, was ‘not about the law as it exists,’ but ‘about Alabama’s attempt to re-make our (Section) 2 jurisprudence anew,’” they wrote.

In a concurring opinion, Justice Brett Kavanaugh wrote  that there might be a time limit on race-based redistricting, but said the state did not “raise that temporal argument in this court.”

Attorneys for the state have filed several briefs citing Kavanaugh’s opinion banning race-based admissions at colleges and universities, and arguing the lower court remedy amounts to “affirmative action,” but have not argued nearly as much about the time limit argument.

The plaintiffs also argued that Alabama did not meet the burden of a stay. In part, they write, because public interest does lie in a stay.

“Alabama’s flagrant disregard of court orders and ‘significant lack of responsiveness’ to a sizeable portion of the electorate harms the strong public interest in protecting the right to vote and the rule of law,” they wrote. “The Secretary’s ‘deeply troubling’ stay application runs counter to the interests of our courts, our nation, and all Alabamians.”

The U.S. Supreme Court had not ruled on Alabama’s application for a stay as of early Tuesday evening. 

https://alabamareflector.com/wp-content/uploads/2023/09/Milligan-response-Sept-19-2023.pdf