Alabama Redistricting map, which creates two possible Black voting age majority districts
From reports by Patrick Darrington and Bill Britt, Alabama Political Reporters
On Tuesday, attorneys representing the Milligan plaintiffs in the Allen v. Milligan suit filed a response to the U.S. Supreme Court asking the court to deny Allen’s emergency request for a stay that was filed last week with the high court.
Two weeks ago, a federal district court ruled that Alabama’s 2023 congressional map passed by the legislature in July failed to create a “remedy” to the previous map’s dilution of Black voting power. Secretary of State Wes Allen on behalf of the state filed an appeal to stay that decision but the district court refused the stay prompting Allen to make an emergency request to the Supreme Court to freeze the decision.
In June of 2023, the U. S. Supreme Court ruled in a 5 to 4 decision , with Chief Justice John Roberts and Justice Brett Kavanaugh voting with the three liberal judges: Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, that Alabama had violated Section 2 of the Voting Rights Act by not redistricting to allow Black voters a chance to select two of the seven Alabama Congresspersons, when Black people were 27% of the Black voting age population in the state.
The Alabama State Legislature in August 2023 held a Special Session on redistricting and produced a Congressional Redistricting Map which did not create two districts that could elect a Black candidate, in defiance of the Supreme Court and a special three judge appellate court in Alabama. In part, the Alabama Legislature was hoping for a rehearing of their case by the Supreme Court, with the possibility of flipping the vote of Justice Brett Kavanaugh and declaring Section 2 of the Voting Rights Act unenforceable.
Bill Britt of Alabama Political Reporters has found a connection between Leonard Leo, Director of the Federalist Society and other groups, dark money supporters of a conservative agenda on the Supreme Court, personal vacation trips and other benefits offered to Justices Thomas, Alito, and others by billionaires with business interests before the courts, the Republican leaders of the Alabama Legislature, Alabama District Attorney Steve Marshall, and others. This group is pushing to get the Alabama redistricting case back before the U. S. Supreme Court, so they can influence Justice Brett Kavanaugh to change his vote and kill the Alabama two district redistricting plan.
The Alabama redistricting case has national implications for the future composition and control of the U. S. House of Representatives, since there are similar redistricting cases in Louisiana, Georgia, Florida, Arkansas, North Carolina, and other states to create opportunities for the election of Black candidates, who are likely to be Democrats replacing incumbent Republican Congresspersons. The Republicans currently control the House of Representatives by a five-seat majority which could evaporate if redistricting is done in these southern states.
U. S. Supreme Court considering the State of Alabama’s emergency appeal
Supreme Court Justice Clarence Thomas, who handles cases from Alabama, gave the Allen vs Milligan plaintiffs in the litigation until Sept.19 to issue their response to the stay. The counsel for the plaintiffs did so and in their filing stressed that Alabama defied both the district court and Supreme Court’s previous rulings. Much of the response argues the map put forth by the state plainly fails to remedy issues with the prior map by not implementing two majority Black districts as was ordered.
“The Secretary of State (Wes Allen), and legislative defendants, are free to make whatever arguments they wish to the Special Master about their preferred redistricting criteria for formulating the remedial map,” the filing stated. “What the Secretary cannot do is pretend this motion is something other than what it is: a request to defy this court’s decision by implementing a “remedy” that cures nothing and prevents Black voters from having an opportunity to elect candidates of their choice in a second congressional district. The Court should deny Alabama’s application for stay pending appeal and summarily affirm the district court’s decision below.”
In June, the Supreme Court sided with the district court and ruled in Allen v. Milligan that Alabama’s 2021 congressional map likely violated Section 2 of the Voting Rights Act and diluted Black voting power. The district court ordered Alabama to create a second majority, Black district or “something close to it.” Yet, Alabama defied this order backed by the Supreme Court and kept only one majority Black district.
The state has attempted to argue they were trying to keep intact “communities of interest.” The Milligan counsel attacked this argument in the filing stating the legislature changed the criteria and factors involved with determining “communities of interest” and that those communities are not a “trump card” to ignore Section 2 or the creation of a second majority Black district.
“More fundamentally, nothing in the law justifies treating state-selected communities of interest as a “trump card” that overrides compliance with [Section 2] or nullifies Plaintiffs’ showing that Black Alabamians are geographically compact enough to comprise a reasonably configured second opportunity district,” the counsel wrote. “To the contrary, a rule that made certain retrofitted, attorney-identified communities of interest or map-drawing requirements inviolable would radically rewrite the [Section 2] inquiry, which “for more than forty years … has expressly provided that a violation is established based on the ‘totality of circumstances.’”
The response also mentioned the peculiar nature of how Alabama passed the Senate version of the congressional map and the state’s confidence in getting the case heard “anew” by the Supreme Court. APR originally reported in July this was due to high ranking ALGOP members including Attorney General Steve Marshall acquiring “intelligence” Supreme Court Justice Brett Kavanaugh could potentially flip his vote to overturn Section 2 of the VRA.
However, new reporting from APR has discovered the dark money connections supporting this disobedience. in D.C. supporting the ALGOP’s deliberate disobedience of Supreme Court orders and attempts to overturn Section 2 of the VRA.
The report details connections between far-right figure Leonard Leo labeled the “hidden architect of the Supreme Court”, Marshall, Solicitor General Edmund LaCour and a D.C. law firm called Consovoy McCarthy. Leo is infamous for supporting high stakes political challenges to attempt to overturn Supreme Court decisions like Roe and it appears he is now attempting to support an upheaval of voting rights law.
“These previously unreported connections between Alabama officials who led the state’s 2023 redistricting process and various players seeking to reshape America may be the reason Alabama’s Republican-controlled legislature gambled on a rehearing before the U.S. Supreme Court,” Bill Britt wrote, “in hopes their inside intelligence was right in believing Kavanaugh would change his previous vote in Allen v. Milligan.”
In Allen’s stay request he asked the Supreme Court to decide by at least Oct. 4 in hopes the current map will be used in the upcoming election cycle. The Milligan attorney closed their brief by stating Alabama’s actions would harm substantial portion of the public.
“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.”