Discover more from The Bulwark
Alabama’s Republicans: Lawless Lawmakers
They’re so desperate to protect their gerrymandered map, they’re disobeying the U.S. Supreme Court.
THE REPUBLICAN-DOMINATED ALABAMA LEGISLATURE is hellbent on constraining the black (read: Democratic) vote in that state—and on doing it illegally.
This is not hyperbole. Not only is the legislature knowingly violating the Voting Rights Act and multiple federal court orders directing it to create two (not one) majority-black voting districts. But in a new and troubling low for Republicans, the state’s GOP lawmakers have also openly and admittedly flouted a June 8, 2023 decision by the U.S. Supreme Court holding that two black districts, not one, are required by law. On Monday, the federal district court overseeing the case responded with appropriate severity to a demand from Alabama’s secretary of state for an extension so that Republicans could continue to defy the law. “All Alabamians,” write the judges,
already have endured one congressional election in this census cycle that the Secretary administered under an unlawful map. We see no reason to allow that to happen again.
TO RECAP THE RELEVANT BACKGROUND: On September 27, 2021, after the results of the 2020 census were released, a group of plaintiffs sued Alabama in federal court claiming that the state’s existing congressional map violated the Equal Protection Clause of the Fourteenth Amendment because the districts were racially gerrymandered. On November 3, 2021, the Alabama legislature passed a new plan, and the plaintiffs amended their complaint to challenge it. At the same time, two other sets of plaintiffs filed separate lawsuits adding claims under Section 2 of the Voting Rights Act of 1965 (VRA) which, in the words of the Department of Justice, “prohibits voting practices or procedures”—including gerrymandering—“that discriminate on the basis of race, color, or membership in one of the language minority groups identified in . . . the Act.”
The cases were consolidated, and an eight-day hearing was held, during which the live testimony of 17 witnesses, over 1,000 pages of briefing, upwards of 350 exhibits, and arguments from 43 different lawyers were considered. The three-judge panel (which included two Trump appointees) found in a 227-page opinion that the 2021 plan was illegal, and ordered that it be redrawn so that two out of seven districts reflect black majorities. The state appealed, and the U.S. Supreme Court stayed the order, ruling temporarily for Alabama—a big win, because the very map deemed illegal by the lower court wound up governing the 2022 midterms.
Ultimately, though, in its ruling this past June the Supreme Court affirmed the panel’s decision, rejecting the legislature’s map. Wrote Roberts for the majority: “The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our [VRA] § 2 jurisprudence anew.” Alabama’s contention “that mapmakers must be entirely ‘blind’ to race has no footing in our § 2 case law,” he declared.
If you care about the rule of law and protecting democracy, you really should sign up for a Bulwark subscription—even just a free one. You won’t regret it.
Nonetheless, like belligerent toddlers, Alabama Republicans responded to the High Court’s ruling with another plan containing only a single black district. Last week, on September 5, the same exasperated panel of three federal judges entered an order enjoining Alabama Secretary of State Wes Allen from implementing the revised plan, and directing that a court-appointed special master come up with a replacement in time for the next election cycle. Wrote the panel in its 198-page decision:
We have now said twice that this Voting Rights Act case is not close. And we are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires. . . . [T]he state delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstance we face. We are not aware of any other case in which a state legislature—faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district—responded with a plan that the state concedes does not provide that district.
Secretary of State Allen then sought a stay to delay the work of the special master, which is supposed to be completed by September 25. It was that request that the three-judge panel smacked down yesterday.
Meanwhile, though, Allen is also appealing to the Supreme Court, hoping that by forcing the Court to revisit its ruling, Chief Justice Roberts’s slim majority—which included in part Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown-Jackson, and Brett Kavanaugh—will crack. Meaning, as Matt Ford has observed for the New Republic, that Kavanaugh will change his mind.
TO JUSTIFY THUMBING ITS NOSE at the Roberts majority here (and to lure in Kavanaugh), Alabama Republicans are seizing on an intervening Supreme Court decision contorting Fourteenth Amendment law. In a court filing last month, Secretary of State Allen that the Supreme Court’s June 29, 2023 ruling in Students for Fair Admissions v. Harvard, which held that it is unconstitutional to consider race in admissions (except in connection with a “discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability”), governs the Alabama gerrymandering claims, which involve the Fourteenth Amendment as well as the VRA. Harvard reset the stage for “race-based government action,” Allen asserts. “Redistricting is not an exception to the rule.”
Alabama is correct to anticipate that this right-leaning Court will issue more rollbacks of longstanding constitutional protections on the basis of race and other immutable characteristics. But the fact that Alabama is pushing that outcome while at the same time testing the legitimacy of the Court’s precedent is pretty scary. The way things normally work is that a decision is binding until it is reversed—which would mean that Alabama would have had to ask for some form of emergency relief urging the Court to reconsider its early-June Alabama ruling in light of its late-June Harvard ruling. Otherwise, the state was legally required to create two majority-black districts. Instead, it chose to ignore the Supreme Court’s decision altogether.
The Court might have itself to thank for this petulance, having allowed Texas to implement a six-week abortion ban while Roe v. Wade was still controlling precedent. After all, any parent knows that toddlers understand that a rule that goes unenforced just once is no longer a rule. In this case, the Court would do well to consider its own legitimacy when it takes up Alabama’s tired invitation to rewrite the VRA this time around.