Rule of Law

Alabama redistricting creates test for Supreme Court’s authority

As doubts percolate over the state’s compliance with a court order on a congressional district redraw, experts see an opportunity to reaffirm the judiciary’s power.

WASHINGTON (CN) — A redistricting fight in Alabama that threatened the Voting Rights Act seemed all but settled by the Supreme Court this June, until questions over lawmakers’ compliance with the order caused a stir last week.

On Friday, Alabama lawmakers approved a new congressional map after its previous iteration was ruled unlawful. Five of the high court’s justices voted in favor of a redraw of the state’s congressional maps to comply with the Voting Rights Act. The new map, however, does not appear to fulfill the court’s edict.

“This an incredibly important development that strikes at the heart of our constitutional system,” said David H. Gans, director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center, in a phone interview. “When the Supreme Court and federal courts issue orders, will the government comply with them? Here’s a case where Alabama is defying a court order requiring it to comply with the Voting Rights Act, and it does speak to the depths of resistance to live up to these fundamental principles that were designed to ensure that we have a multiracial democracy.”

Voting rights experts say Alabama’s new map will set off another round of litigation that could result in a court-mandated congressional redraw in the state. While the fate of the map could decide if Democrats gain another seat in Congress, it may also prove pivotal for the authority of the judiciary.

“This is a very dangerous road that I think the court has to be thinking about going forward, not just for this issue, but to any number of matters,” said Kareem Crayton, the senior director for voting and representation at the Brennan Center, in a phone call.

He continued, “If it wants its decisions respected both by federal officials and state officials, they should take this moment seriously, and what they say and how they speak to it — that’s the local district court and the United States Supreme Court — I think is going to be carefully reviewed and people will govern themselves accordingly.”

If Alabama lawmakers are allowed to disavow the Supreme Court’s order, other states might follow their lead on a number of controversial issues the justices rule on.

“Not just for even voting rights, think of all the different orders that jurisdictions offer,” Crayton said. “Right now, we’re talking about red states, but, you know, if a blue state that’s run by Democrats doesn’t necessarily like an order, what’s to say that there’s a requirement that they follow it?”

At issue in Alabama is lawmakers’ refusal to add an additional Black majority district to its congressional maps. The state’s proposed 2021 maps were found unlawful because they violated Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race.

Black Alabamians make up 27% of the state’s voting-age population; however, they were only given a majority in one of seven congressional districts in the state. Redistricting efforts following the 2020 election split the state’s Black Belt — a region named for its fertile black soil and home to a majority of residents who are descendants of enslaved individuals. In particular, Montgomery was broken into two districts. Alabama lawmakers argued the split was necessary to maintain the Gulf Coast district.

A three-judge panel disagreed with lawmakers’ focus on keeping the Gulf together over the Black Belt and ordered a redraw of the maps with a second majority Black district. The Supreme Court agreed with the panel’s assessment, seeming to settle the debate. At least until the new maps were unveiled.

Alabama’s redraw does not create a second Black majority district. Instead, the new map increases the percentage of Blacks in District 2. In the proposed 2021 map, District 2 had a Black voting age population of 29%. The new map fails to increase this district to a true majority and instead sets it at 39.93%. The new map also decreased the Black voting age population in District 7, from 54% to 50.65%.

To comply with the Voting Rights Act, a district doesn’t have to be majority minority; instead, it just has to give minority voters an equal opportunity to elect a candidate of their choice.

“They have to provide what’s called an ability to elect a candidate of choice of the minority community,” said Richard Pildes, a constitutional law professor at New York University, in a phone call. “So how high that Black population has to be depends on various things, including how much white support there might be for the candidate that the minority community prefers.”

This information is gathered from prior elections. This case has the advantage for lawmakers that an assessment is already complete. In the lower court’s assessment, to give Black voters an opportunity to elect a candidate of their choice, the state would need to give them a second majority district, or close to it.

Experts are skeptical that what’s offered in the new map — just under 40% — will make the cut.

“It certainly looks to be insufficient, according to what the district court had found about voting patterns in Alabama,” Pildes said.

The Brennan Center did its own analysis using data from statewide elections between 2016 and 2020. Out of all the maps proposed by Republican lawmakers, only one would have allowed the Black-preferred candidate to win in four out of 15 statewide contests. The map that was chosen would only allow the Black preferred candidate to win in one out of those 15 races.

“It’s hard for me to see a credible argument that the new congressional district — if they say is an answer to the court’s directive — does anything close to perform in the manner that the Court I think would require and Section Two demands,” Crayton said.

Alabama Governor Kay Ivey approved of the new maps, claiming that state lawmakers know Alabama “better than the federal courts or activist groups.” It’s not clear if her endorsement extended to the possibility that the maps went against the court’s order.

“I don’t think if you were an attorney representing the state that that’s going to make you feel very good about what you’ve got to go tell the federal court,” Crayton said on Ivey’s comments on the new maps.

Experts are hard pressed to speculate on why Alabama lawmakers have chosen to enact a map that is likely unlawful. If the maps were to contain a second majority Black district, however, it could lead to Democrats winning an additional seat in Congress.

“If this map seems pretty likely not to satisfy the court’s earlier requirements, why would they have enacted it?” Pildes said. “Obviously, this is just speculation, but in drawing a new map, one of the incumbent Republicans is very likely to lose their seats.”

If the new map is found to be unlawful, the Court will have a special master conduct a redraw.

Because of pending litigation at the Supreme Court, Alabama was able to use its unlawful maps in the 2022 elections. It’s not clear when the official map will finally be set in stone; however, experts think it will be before the 2024 elections.

“I think for a further delay to be a part of this story, it would require a pretty significant reason that would deny Black voters who have already been subjected to illegal and unrepresentative maps more time without a remedy,” Crayton said.