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Supreme Court stops lower court order requiring Alabama to draw a new district voting map favorable to Black residents

The Washington Post logo The Washington Post 2/7/2022 Robert Barnes
The U.S. Supreme Court in Washington on Sept. 13. (Stefani Reynolds/Bloomberg News) © Stefani Reynolds/Bloomberg The U.S. Supreme Court in Washington on Sept. 13. (Stefani Reynolds/Bloomberg News)

A divided Supreme Court on Monday restored an Alabama congressional map that creates only one district favorable to a Black candidate, and put on hold a lower court’s order that said a second district was necessary to comply with the Voting Rights Act.

Over the objections of Chief Justice John G. Roberts Jr. and the court’s three liberals, its five most consistently conservative justices halted a decision last month by three federal judges. The panel threw out Alabama’s new congressional map, which included only one congressional district with a majority of Black voters even though they make up more than a quarter of the state’s population.

The court’s ruling was a blow to voting rights advocates and Democrats after a series of redistricting wins over the past several weeks. It means the 2022 congressional elections in Alabama will take place under a map drawn by the state’s Republican leaders.

But it also signaled that the court’s more conservative majority is suspicious of a Voting Rights Act precedent that Alabama said requires legislatures to prioritize race over traditional redistricting techniques.

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The majority — Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — did not provide a reason for stopping the lower court’s decision, which is common when the Supreme Court considers an emergency petition. But Kavanaugh, joined by Alito, wrote separately to say the changes ordered by the lower court came too close to qualifying and primaries for the fall election and could create “chaos.”

He denied the court was making “new law” with the ruling, saying it would allow for an orderly examination of the challenge to Alabama’s redistricting. The state has seven congressional districts, six of them held by Republicans.

Dissenting Justice Elena Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor, called the order “a disservice to Black Alabamians” who under Supreme Court precedent “have had their electoral power diminished — in violation of a law this Court once knew to buttress all of American democracy.”

The unanimous lower court panel noted that over the past decade, the number of White Alabamians had declined while the state’s Black population grew, and now accounts for 27 percent of the state’s overall population. That means the state’s map should contain two districts with either Black majorities or “in which Black voters otherwise have an opportunity” to elect representatives they favor, the panel said.

“Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” the panel wrote, finding challengers of the map were “substantially likely” to prevail on claims that the new maps violate the Voting Rights Act.

“We find that the plaintiffs will suffer an irreparable harm if they must vote in the 2022 congressional elections based on a redistricting plan that violates federal law,” the ruling stated.

The panel was composed of Judge Stanley Marcus from the U.S. Court of Appeals for the 11th Circuit, nominated by President Bill Clinton, and District Court Judges Anna M. Manasco and Terry F. Moorer, both chosen by President Donald Trump.

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The case is the first for current Supreme Court justices to consider how to apply the Voting Rights Act to racial gerrymandering. In 2019, the court said federal courts had no role in policing partisan gerrymandering.

Roberts acknowledged the court’s precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But he said the panel had followed Supreme Court commands and produced “an extensive opinion with no apparent errors for our correction.”

He would have allowed the lower court opinion to stand for the 2022 election, and set the case for argument next term.

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The case was part of a nationwide legal battle as states redraw districts after the 2020 Census. State supreme courts in Ohio and North Carolina struck down congressional maps drawn by Republican legislatures in those states, saying they violated their constitutions.

Ohio’s court ruled the legislature had violated a constitutional amendment banning partisan gerrymandering. The North Carolina judges said the map violated the state constitution’s free elections clause, the equal protection clause, the free speech clause and the freedom of assembly clause. In both cases, the maps must be redrawn.

The Justice Department has intervened in Texas, suing the state over its new congressional map over complaints that it violated the Voting Rights Act by not drawing any additional Latino-majority seats in a state where the population grew by 4 million people, half of whom were Latinos.

Challengers of the Alabama plan said they hoped the setback was temporary.

“The Supreme Court’s decision to intervene is disheartening, but the facts are clear: Alabama’s current congressional map violates the Voting Rights Act,” said Deuel Ross, senior counsel at the NAACP Defense and Educational Fund. “The litigation will continue, and we are confident that Black Alabamians will eventually have the congressional map they deserve, one that fairly represents all voters.”

The judges in the Alabama case said they were applying Section 2 of the Voting Rights Act, which forbids practices that would mean racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

The Supreme Court has previously dismantled Section 5 of the law, which required federal approval of changes to voting laws in states and localities with a history of discrimination. In the past term, it limited the availability of Section 2 to challenge voting restrictions.

Alabama Attorney General Steve Marshall (R) told the Supreme Court that the lower court got it wrong. “The court-ordered redraw marks a radical change from decades of Alabama’s congressional plans,” Marshall wrote. “It will result in a map that can be drawn only by placing race first above race-neutral districting criteria, sorting and splitting voters across the State on the basis of race alone.”

Alabama’s lone majority-Black district was also created by federal court order, decades ago, and has always been represented by Rep. Terri A. Sewell, a Black Democrat.

The challengers to the plan passed by the legislature and signed by Gov. Kay Ivey (R) include a state senator and the Alabama NAACP. They contend that Sewell’s district had been packed with more Black voters than necessary to ensure a minority candidate would win, and that the rest of the state’s Black voters have been spread across other congressional districts in numbers too small to make a difference.

In their filing, they say they have fulfilled Supreme Court precedent by “showing that it is possible to draw an additional majority-Black district in Alabama consistent with traditional districting principles.” They said drawing such districts does not require race “to predominate over other factors. Alabama’s contrary argument seeks a wholesale revision” of Voting Rights Act precedent.

The case is Merrill v. Milligan.

Colby Itkowitz contributed to this report.


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