Can Alabama draw new maps on explicitly racial lines? Maybe.
“It’s kind of head spinning and even lawyers who are in the space get a little confused,” said Michael Li, a redistricting expert and senior counsel at the Brennan Center for Justice at New York University.
At the Tuesday public hearing, attorney James Blacksher and Rep. Chris England, D-Tuscaloosa, went back and forth about whether or not Alabama’s new maps can split counties to be on explicitly racial lines. The answer to that question remains to be seen.
Alabama’s legislature needs to redraw their congressional districts after the surprise ruling in Allen vs. Milligan, which upheld a three-judge panel’s ruling that the current maps as racially gerrymandered and in violation of Section 2 of the Voting Rights Act. As part of the ruling, plaintiffs had to prove that there could be a map with two districts of predominantly Black voters.
Writing in January 2022, the three-judge panel wrote that the remedy would be a second district where “Black voters either comprise a voting-age majority or something quite close to it.”
At present, there are two maps that have been discussed at length with the legislature. One map, the VRA Plaintiffs Remedial Map, endorsed by the Milligan plaintiffs and the Caster, a similar case, plaintiffs, has two predominately Black districts and breaks up counties.
A group of plaintiffs in a separate action led by Senate Minority Leader Bobby Singleton, D-Greensboro, presented a different map to the Permanent Legislative Committee on Reapportionment on Tuesday. The map would draw two districts, one 48% minority (39% Black) and one 55.7% minority (49.4% Black). One of those districts is Jefferson County on its own, which Blacksher, representing the Singleton plaintiffs, says has white voters who vote Democrat.
The parties’ views of the different maps depend in part on their interpretations of an earlier redistricting case out of North Carolina.
Cooper v Harris
In 2017, the Supreme Court took on the racial gerrymandering case Cooper vs. Harris, a redistricting case out of North Carolina. The Republican-controlled General Assembly in the state redrew two congressional districts after the 2010 Census that increased the number of Black-majority districts. Two voters sued, arguing the move was intended to dilute Black voters’ power in other districts.
In a 5-3 opinion joined by four liberal justices and conservative Clarence Thomas, Justice Elena Kagan ruled that the North Carolina Assembly failed to show that it had a compelling reason to sort voters based on race.
Blacksher said in an interview Wednesday that Cooper v. Harris means Alabama would be in violation by drawing lines based on race. He argued that t’s possible to have two districts where Black voters can have influence without majority, so a map with two districts of majority would be done on race-based lines and in violation of the constitution.
“Cooper vs. Harris says when a state has to comply with the Voting Rights Act, enact a plan that satisfies the Voting Rights Act, it still must satisfy the Constitution, as well, alright, and it can’t satisfy the Constitution by using a race conscious or racially drawn districts if the voting if the Voting Rights Act can be satisfied without drawing race-based districts,” he said.
Not everyone agrees with that interpretation. Evan Milligan, the plaintiff in Allen v. Milligan, noted in testimony to the committee Tuesday that the lower court in his case found evidence of racially-polarized voting in Alabama. That, he said, meant the current congressional map, where the 7th Congressional District is the only majority-minority district, muted Black voters’ voices in the process.
“The three-judge district court panel ruled unanimously that there was evidence of racial polarization in voting here, to a degree that without opportunity districts for Black voters in the state, you wouldn’t have Black voters here in Alabama, outside District 7, able to elect a candidate of their choice,” he said.
England was in favor of the Milligan map and said, after the hearing Tuesday, that the Supreme Court said they could “manipulate a little bit” some traditional principles in drawing maps. He said the only concern was ensuring that Black voters have the chance to vote in a candidate of their choice. He said they could split counties and precincts.
“Whatever is necessary to make sure that the voting power of African Americans is not unconstitutionally diluted,” he said.
A message seeking comment was left with attorneys in the Caster case, who support the Milligan map.
Li said that it’s not clear if Alabama would be in violation of Cooper because it attempts to remedy a Voting Rights Act violation. Historically, that has been considered a “compelling state interest” to draw lines on a racial basis.
“So there’s a question of whether they really didn’t consider race too much. That’s question one, and then the question is, if they did, whether that was necessary,” he said.
The court would need to prove that Alabama drew lines based on race, which which might not be clear. . Many issues in Alabama tend to correlate with race, such as access to health insurance, but not necessarily because a current lawmaker made an explicit choice to do so.
What Happens Next?
The three-judge panel said that Alabama must have new maps that satisfy the requirements by July 21. The special session that would pass the new maps begins on July 17, the last possible day to pass the maps.
“So, there’s a process for all of these issues to be sort of worked out,” Li said.
The Republican supermajority in the Legislature can pass whatever maps they want before the deadline. Drawing new maps could force two Republican U.S. House members into the same district, and England said Tuesday that possibility could make GOP lawmakers reluctant to act. Republicans on the committee Tuesday did not indicate their map preferences.
What the Legislature does “involves decisions that are both legal and political as you can see,” Blacksher said.
If the maps pass by July 21, then they will go before the three-judge panel to decide if they meet the requirements. If the Legislature misses the deadline, or the court considers the new maps to be inadequate, the judges will appoint a special master to draw new once.
“How do you draw a Voting Rights Act district without thinking about race?” Li said. “If it seems crazy, like, this is where the court has put us and so, but I think there’s an open question of how whether the district has to be majority Black or can be plurality Black and the court will sort of weigh that out.”
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