A three-judge federal panel Tuesday ruled that a new Alabama congressional map failed to address Voting Rights Act violations and ordered a third party to draw new lines.

In a 217-page opinion in the case, known as Allen v. Milligan, U.S. Circuit Judge Stanley Marcus and U.S. District Judges Anna Manasco and Terry Moorer sharply criticized the Alabama Legislature, writing that they were “deeply troubled” that lawmakers did not draw a map that gave Black voters in the state the chance to elect representatives of their choosing, as the judges ordered in a January 2022 ruling.

“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,” the judges wrote. “The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice. The 2023 Plan plainly fails to do so.”

The court ordered special master Richard Allen to submit three potential remedial maps by Sept. 25, with an emphasis on addressing the Voting Rights Act violations.

The Alabama attorney general’s office said in a statement that it would “promptly seek review” of the decision by the U.S. Supreme Court.

“While we are disappointed in today’s decision, we strongly believe that the Legislature’s map complies with the Voting Rights Act and the recent decision of the U.S. Supreme Court,” the statement said.

The attorney general’s office sought a stay of the decision Tuesday as an appeal to the U.S. Supreme Court moves forward. The court had not ruled on the motion as of early Tuesday evening.

Alabama House Speaker Nathaniel Ledbetter, R-Rainsville, said at the end of the special session — where it was not clear who drew the map approved by lawmakers — that officials hoped to get the map back before the nation’s high court. Ledbetter said in a statement Tuesday that the decision was “disappointing.”

“It’s frustrating that the court chooses to legislate when the Alabama Legislature knows our citizens, hometowns, and communities better than any federal judge,” the statement said.

In a joint statement Tuesday morning, the plaintiffs in the Milligan case, who argued the map robbed them of their ability to select leaders of their choosing, said that Alabama had admitted “its intention to defy the law and the U.S. Supreme Court.”

“Sixty years ago, former Governor George Wallace stood in the schoolhouse door to stop Black people from desegregating the University of Alabama,” the statement said. “He moved only when the federal government forced him to do so. History is repeating itself and the district court’s decision confirms that Alabama is again on the losing side. We demand that Alabama again move out of the way and obey our laws — we demand our voting rights.”

Messages were left Tuesday with Rep. Chris Pringle, R-Mobile, who helped lead efforts to draw the maps, and Sen. Steve Livingston, R-Scottsboro, who sponsored the proposal the Legislature approved.

Rep. Chris England, D-Tuscaloosa, one of the leading critics of the proposal during the July special session, said Tuesday that Alabama Republicans had “commandeered a special session (and) used it to take up a losing strategy, just to try to force this back into the Supreme Court.”

“Many people throughout the session said it was going to happen, and it did,” England said. “I think that should make everybody angry.”

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Benard Simelton, president of the Alabama State Conference NAACP, said Tuesday “the court meant what it said and said what it meant, and that the state of Alabama has no intention of complying with the federal court’s order nor the Supreme Court’s order.”

The Litigation

The Alabama Legislature approved a new congressional map in 2021 that created a single majority-Black district, which Alabama congressional maps have included since 1992. Black residents sued the state over the proposal shortly after, arguing that the map violated Section 2 of the Voting Rights Act, which bans discriminatory election or voting practices, by packing Black voters into a single area. That, they argued, made it more difficult for Black Alabamians to elect leaders of their choice.

The judges ruled in favor of the plaintiffs in January 2022, citing the high degree of racial polarization in voting in Alabama, where white Alabamians, who make up about 64% of the population, tend to support Republicans and Black Alabamians tend to support Democrats. The panel ordered the state to draw new maps, saying the remedy would be a second majority-Black district “or something quite close to it.”

The U.S. Supreme Court stayed the ruling for the 2022 elections but upheld the lower court decision in June. In a special session in July, the Republican-dominated state Legislature approved a map that created a 7th Congressional District in west Alabama with a 50.65% Black voting age population, and a 2nd Congressional District in southeast Alabama with a Black voting age population of 39.93%.

Plaintiffs challenged the maps, saying they fell far short of what the court directed. The Alabama attorney general’s office argued after the map was approved that their map better protected “communities of interest” — defined in language added to the bill creating the map as the Black Belt, the Wiregrass and the coastal counties of Mobile and Baldwin — and that drawing a second majority-Black district would be unconstitutional and a form of affirmative action, which the Supreme Court struck down in college admissions in June.

But that argument led to strong skepticism from Marcus, Manasco and Moorer at a hearing last month. Moorer told Alabama Solicitor General Edmund LaCour that Alabama appeared to have “deliberately disregarded our instruction.”

During the hearing, Milligan plaintiffs played portions of a deposition from Livingston, who said that legislative findings on communities of interest were given to legislators by LaCour. Pringle said in a deposition that LaCour “worked as a map drawer at some point in time.”

The judges noted the “mysterious provenance” of the 2023 map in their opinion. “The record before us does not make it clear who prepared the 2023 plan,” the opinion said.

The state had also suggested that the new map and principles could reset the litigation. Plaintiffs said that would put redistricting legislation in an “infinity loop.” The panel agreed, comparing it into being “three years into a ten-year baseball series.”

“The plaintiffs won game one,” the opinion said. “The state had the opportunity to challenge some of the calls the umpires made, and the replay officials affirmed those calls. Now, instead of playing game two, the state says it has changed some circumstances that were important in game one, so we need to replay game one. If we agree, we will only ever play game one; we will play it over and over again, until the ten years end, with the state changing the circumstances every time to try to win a replay.”

The judges also noted that the state never attempted to argue that the proposed 2nd Congressional District would serve as an opportunity district for Black voters.

“A Black voting age population of 39.93% is insufficient to give Black voters a fair and reasonable opportunity to elect a representative of their choice,” the opinion said. “It will either never happen, or it will happen so very rarely that it cannot be fairly described as realistic, let alone reasonable.”

The court also rejected the state’s affirmative action argument. In the college case, the judges wrote, the U.S. Supreme Court found that colleges had impermissibly used “proportional representation” to achieve a diverse student body. By contrast, the opinion said, the Voting Rights Act and controlling precedent only seek “equality of opportunity” for Black voters.

“The Voting Rights Act does not provide a leg up for Black voters,” the opinion said. “It merely prevents them from being kept down with regard to what is the ‘most fundamental political right,’ in that it is ‘preservative of all rights’ — the right to vote.”

Simelton expressed confidence that the plaintiffs would prevail in any appeal.

“The federal courts are protecting those [voting rights] and that the state of Alabama is not interested in any way ensuring fair elections,” he said. “And so I think this means that Black Alabamians will have right to help their votes heard.”

Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: info@alabamareflector.com. Follow Alabama Reflector on Facebook and Twitter.