Alabama defended its redrawn electoral map before the Supreme Court on Oct. 4, arguing that the federal Voting Rights Act (VRA) doesn’t require the state to racially gerrymander districts to guarantee black representation in the state’s congressional delegation.
The hearing came after a flurry of activity in the legal dispute.
On Jan. 24, a three-judge panel of the U.S. District Court for the Northern District of Alabama issued a preliminary injunction against John Merrill, Alabama’s Republican secretary of state, temporarily forbidding him from conducting any congressional elections in the state.
That court found that instead of having one predominantly black congressional district, the state is required by federal law and existing legal precedents to have two predominantly black districts. Alabama disagrees.
The state’s current delegation to the U.S. House of Representatives consists of six Republicans and one Democrat.
On Feb. 7, the Supreme Court stayed the lower court ruling over the dissents of Chief Justice John Roberts, and Justices Elena Kagan and Sonia Sotomayor, as well as then-Justice Stephen Breyer.
The case is actually two cases, Merrill v. Milligan (court file 21-1086) and Merrill v. Caster (court file 21-1087), which the court consolidated.
Alabama Solicitor General Edmund G. LaCour Jr. told the justices that his state “conducted its 2021 redistricting in a lawful, race-neutral manner.”
“The state largely retained its existing districts and made changes needed to equalize population,” he said. “But that wasn’t good enough for the plaintiffs.”
“They argue that Section 2 of the Voting Rights Act requires Alabama to replace its map with a racially gerrymandered plan maximizing the number of majority-minority districts. But Section 2 requires an electoral process equally open to all, not one that guarantees maximum political success for some over others.
“Section 2 does not and cannot obligate Alabama to abandon district lines enveloping the undisputed longstanding community of interest in the Gulf to be replaced by district lines dividing black and white with such racial precision that Alabama could never have constitutionally drawn those lines in the first place.”
Section 2 of the VRA “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership” in a large language minority group, according to the U.S. Department of Justice.
Alabama, LaCour said, has been “commanded” to “redraw its districts to subordinate traditional districting principles to race.”
“The only way to add a second majority-minority district to Alabama’s plan is to make race the non-negotiable criterion,” he said. The other side would create a second majority-black district by splitting Mobile County and dividing the Gulf area by race, which would necessitate having a district stretching the width of the state “to group together black voters from disparate areas as far west as Mobile and as far east as the Georgia border.”
“Requiring states to scrap neutral plans in favor of plans drawn on account of race set Section 2 at war with itself and with the Constitution,” LaCour added.
Redistricting is hard for legislatures “and it’s an area where courts are not particularly well-suited to come in and second-guess,” he said.
Kagan told LaCour his case was weak.
“It’s kind of a slam dunk if you just take our existing precedent the way it is, and the three judges below all found this … [and] said this is an easy case.”
Justice Ketanji Brown Jackson, in her second day on the bench hearing cases, pushed back against LaCour.
Just because race is taken into account doesn’t necessarily mean there is an equal protection problem, she said.
“We looked at the history and traditions of the Constitution, at what the framers and the founders thought about, and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way.”
“They were, in fact, trying to ensure that people who had been discriminated against, the freedmen in … [the] reconstruction period were actually brought equal to everyone else in the society.”
Protecting freedmen was “not a race-neutral or race-blind idea,” Jackson said.
U.S. Solicitor General Elizabeth Prelogar weighed in against Alabama.
The lower court found that this was “an extreme and atypical case of vote dilution,” she said.
“Voting in Alabama is intensely racially polarized, about as stark as anywhere in the country. The history and effects of racial discrimination in the state are severe. Black voters are significantly underrepresented.”
Justice Samuel Alito told Prelogar that blacks and whites don’t necessarily vote as blocs.
“It may be that black voters and white voters prefer different candidates now because they have different ideas about what the government should do.”
