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allen v. milligan
In 'Victory for Voting Rights,' Federal Judges Adopt New Alabama Congressional Map
"Today's order means for the first time, Black voters in two congressional districts will have an opportunity to elect a candidate of their choice," said the head of the state's ACLU branch.
Oct 05, 2023
Following a U.S. Supreme Court ruling and Alabama Republicans' open defiance of a federal tribunal's order to reconfigure the state's racially gerrymandered congressional districts, a three-judge panel on Thursday adopted a new map that will be used in the 2024 elections.
Proponents hailed the ruling by U.S. Circuit Judge Stanley Marcus, District Judge Anna Manasco, and District Judge Terry Moore as a win for democracy. The move creates a second "opportunity district" where voters will have a fighting chance to elect a second Black member of Congress for the first time since Reconstruction.
"Today's order means for the first time, Black voters in two congressional districts will have an opportunity to elect a candidate of their choice," JaTaune Bosby Gilchrist, executive director of the ACLU of Alabama—which represented plaintiffs in the case—said in a statement.
"It is unfortunate that federal courts were forced to put in place a congressional map that state lawmakers refused to admit is the right thing to do, but we are thankful for their intervention," she added. "Our democracy is strongest when we make it possible for every vote to be counted. Putting in place fair voting maps moves us closer to that reality."
U.S. Rep. Terri Sewell (D-Ala.)
said: "While we celebrate this historic victory, the continued resistance that we face from state officials should not be lost on anyone. This long and arduous battle over Alabama's congressional map serves as a solemn reminder that efforts to deny fair representation to Black and minority voters are still alive and well."
Alabama state Sen. Merika Coleman (D-19) said that "today, we celebrate a victory for voting rights for all Alabamians."
"For two years, we have fought vigorously to end racial gerrymandering in Alabama and we are pleased with this landmark decision," she added. "Not only will this positively affect Alabama, but it will also help remedy the racial gerrymandering that is occurring throughout our nation. Fair maps ensure that no matter what your race, ethnicity, or political leaning, your vote counts."
While the new map does not include a second majority-Black district, it does create one in which 48.7% of voting-age residents are Black. The special master tasked with creating three map options asserted that the candidate preferred by a majority of Black voters has won 16 of the prior 17 elections in the district.
In 2022, a federal district court ordered Alabama's Republican-controlled legislature to draw a new congressional map after one approved by lawmakers and GOP Gov. Kay Ivey was found to dilute Black voting power because it contained just one majority African-American district. The court—which ruled that the GOP map violated Section 2 of the Voting Rights Act and the 14th Amendment—ordered the state to create two Black "opportunity districts."
The state appealed to the U.S. Supreme Court, which in June ruled 5-4 in Allen v. Milligan—with right-wing Justices John Roberts and Brett Kavanaugh joining their three liberal colleagues in the majority—to affirm the district court's ruling.
Following Allen v. Milligan, Ivey held a special legislative session to create a new map, which she approved in July, declaring that state lawmakers know "our people and our districts better than the federal courts or activist groups."
Despite the courts' rulings, Alabama Republicans' new map—the Livingston Congressional Plan 3—still did not contain a second majority Black district. The map's sponsor, state Sen. Steve Livingston (R-8), said then-U.S. House Speaker Kevin McCarthy (R-Calif.) told him that he was "interested in keeping my majority."
A federal tribunal consisting of two appointees of former President Donald Trump and one appointee of former President Ronald Reagan then blocked the new map, declaring that "we are deeply troubled that the state enacted a map that the state readily admits does not provide the remedy we said federal law requires."
Alabama then requested—and was denied—another Supreme Court intervention. A special master tasked by the district court subsequently submitted three new possible maps, or remedial plans, for consideration. Marcus, Manasco, and Moore selected Remedial Plan 3.
Similar challenges to GOP-draw, racially rigged congressional maps are playing out in
Georgia, Florida, and Louisiana.
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Alabama Voters Prep for Another Map Fight After Republicans Flout SCOTUS Ruling
A group of plaintiffs pledged not to rest until the state "complies with the Voting Rights Act and enacts a map with two districts where Black voters have a real opportunity to elect their candidates of choice."
Jul 23, 2023
Voters in Alabama are preparing for another legal battle after the state's GOP-dominated Legislature and Republican Gov. Kay Ivey on Friday approved new congressional districts that critics say defy a surprising recent decision from the U.S. Supreme Court.
The latest map "is really a slap in the face, not only to Black Alabamians but to the Supreme Court," state Rep. Barbara Drummond (D-103) asserted during a floor debate this week, according to ABC News.
Legal experts and voting rights advocates were shocked last month when two right-wing members of the high court joined the three liberal justices for a ruling in Allen v. Milligan that sided with Black voters who argued that Alabama's map was racially gerrymandered by the state's GOP legislators in violation of the federal Voting Rights Act (VRA).
"Following the U.S. Supreme Court order, I called the Alabama Legislature into a special session to readdress our congressional map," Ivey said Friday. "The Legislature knows our state, our people, and our districts better than the federal courts or activist groups, and I am pleased that they answered the call, remained focused, and produced new districts ahead of the court deadline."
Meanwhile, Scott Douglas, executive director at Greater Birmingham Ministries, one of the Allen plaintiffs, declared Friday that "Alabama lawmakers appear hell-bent on preventing Black voters from fully participating in the democratic process and they are blatantly ignoring their constituents, federal law, and the highest court of the land to disenfranchise us."
"Alabama lawmakers appear hell-bent on preventing Black voters from fully participating in the democratic process."
The plaintiffs from Allen—represented by the Alabama and national ACLU, the Legal Defense Fund, and two law firms—have already pledged to challenge the updated map, which was sponsored by state Sen. Steve Livingston (R-8) and does not include a second majority-Black district.
"Let's be clear: The Alabama Legislature believes it is above the law. What we are dealing with is a group of lawmakers who are blatantly disregarding not just the Voting Rights Act, but a decision from the U.S. Supreme Court and a court order from the three-judge district court," the plaintiffs said Friday in a joint statement.
"Even worse, they continue to ignore constituents' pleas to ensure the map is fair and instead remain determined to rob Black voters of the representation we deserve. We won't let that happen," they added. "Since the beginning of the redistricting process, we have testified before the state Legislature, sent letters, and proposed maps—then we sued to defend Black representation and won. We will not rest until the state of Alabama complies with the Voting Rights Act and enacts a map with two districts where Black voters have a real opportunity to elect their candidates of choice and the Legislature fulfills its duty to obey the law."
A federal court hearing about the new districts is set for August 14. As The Associated Press reported Saturday:
The state's Republican legislative supermajority boosted the percentage of Black voters in the majority-white 2nd Congressional District, now represented by Republican Rep. Barry Moore, from about 31% to almost 40%. The plan also dropped the Black voting-age population in the state's sole majority Black district, now represented by Democratic Rep. Terri Sewell, to 50.65%.
[...]
Republicans, who have been reluctant to create a Democratic-leaning district, are gambling that the court will accept their proposal or that the state will prevail in a second round of appeals.
The office of Republican Alabama Attorney General Steve Marshall claimed that "the Legislature's new plan fully and fairly applies traditional principles in a way that complies with the Voting Rights Act."
"Contrary to mainstream media talking points, the Supreme Court did not hold that Alabama must draw two majority-minority districts," the office added. "Instead, the court made clear that the VRA never requires adoption of districts that violate traditional redistricting principles."
However, Sewell said in a statement that "the Supreme Court was very clear... This map does not comply with the Supreme Court's order and is an insult to Black voters across our state. I fully expect that it will be rejected by the courts."
If a three-judge panel finds that the Alabama districts approved Friday violate the VRA, it can appoint a special master to draw another map. Political boundaries for the 2024 election could help determine who has a majority in the U.S. House of Representatives, which is now narrowly controlled by the fractured Republican Party.
Citing GOP attacks on voting rights, Democrats in the U.S. House and Senate on Tuesday reintroduced the Freedom to Vote Act—a move that was widely praised by democracy defenders, even though the bill is unlikely to pass this session given current divisions in Congress.
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Is Supreme Court's Latest Voting Rights Ruling Really That Good? Read the Fine Print
Jun 19, 2023
It’s always important to read the fine print. This sage adage applies not only to credit card applications, auto loans, and mortgages, but also to the decisions of the United States Supreme Court.
At first glance, the Court’s ruling in Allen v. Milligan, released on June 8, appears to be a far-reaching victory for voting rights. In a 5-to-4 majority opinion written by Chief Justice John Roberts, the Court struck down Alabama’s racist new Congressional map for violating Section 2 of the Voting Rights Act (VRA) of 1965.
Numerous commentators have praised the decision. Upon close inspection, however, the ruling is narrow in scope, preserving a vital part of our most basic national voting law only by the slimmest of margins. Worse, the decision may turn out to be short-lived.
The blocked Alabama map was drawn up by the state’s legislature in November 2021 based on data derived from the 2020 U.S. Census. Although Black residents comprise roughly 27 percent of the total population, the map created only one Congressional voting district out of seven in which they would hold a majority.
Advocacy groups represented by the NAACP Legal Defense Fund and the ACLU sued to block the map, arguing that it contravened Section 2 of the VRA, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”
The groups also contended the new map ran afoul of the Supreme Court’s past precedent decisions that date back to the 1980s and outlaw “racial gerrymanders.” Such gerrymanders occur when a state uses race as the primary factor in redistricting to dilute the voting power of minority populations by either “packing” them into super-majority districts or “cracking” them into several white-majority districts. The Alabama map is a classic instance of packing.
Joined by the Court’s three Democratic appointees and Justice Brett Kavanaugh, Roberts issued a statutory decision in Milligan, agreeing that the Alabama map violated the Court’s past decisions on Section 2. But he did not write approvingly of those decisions.
More importantly—and here is where the fine print comes in—Roberts added a gratuitous observation at the end of his opinion that all but invites future Constitutional challenges to Section 2, writing: “The Court’s opinion today does not diminish or disregard the concern that [Section] 2 may impermissibly elevate race in the allocation of political power within the States. Instead, the Court simply holds that a faithful application of precedent and a fair reading of the record do not bear those concerns out here.”
In his concurring opinion, Kavanaugh also issued a warning to voting rights advocates, asserting that the protections against racial gerrymandering under Section 2 “cannot extend indefinitely into the future.”
The crimped nature of the Milligan decision is consistent with Roberts’ track record. It is not a departure.
In truth, John Roberts has never been a friend of voting rights. As a young lawyer working in the Reagan Administration, he authored several memos criticizing the VRA.
In 2013, as head of the nation’s most powerful judicial body, he composed the majority opinion in Shelby County v. Alabama (2013), which gutted provisions of the VRA that required state and local jurisdictions, mostly in the South, with histories of egregious voter discrimination to obtain advance federal approval—known as “preclearance”—before making changes to their election procedures. Roberts declared in Shelby that racial discrimination in voting practices was essentially over, writing that “things have changed dramatically” since the 1965 passage of the VRA.
In 2019, he continued his anti-voting-rights crusade, writing the majority opinion Rucho v. Common Cause, which removed the issue of political gerrymandering (the practice of designing voting maps to benefit the party in power) from the jurisdiction of federal courts. And in 2021, he joined a 5-to-4 majority ruling penned by Justice Samuel Alito that upheld Arizona laws prohibiting out-of-precinct voting, and criminalizing the collection of mail-in ballots by third parties.
Don’t get carried away thinking that Roberts has changed his political stripes, or that his widely touted commitment to institutionalism means that he is prepared to stand up long-term to the Court’s hardcore rightwing bloc led by Justice Clarence Thomas.
Still, any liberal victory in today’s Supreme Court is noteworthy, and for that, we can breathe a sigh of relief. As a result of Milligan, the Alabama legislature will have to redraw the state’s voting map to include either an additional majority African American district or create new districts in which African American voters are more evenly distributed. The ruling could also bolster racial gerrymandering litigation underway in other states, although each contested voting map will have to be adjudicated on its own merits.
But don’t get carried away thinking that Roberts has changed his political stripes, or that his widely touted commitment to institutionalism means that he is prepared to stand up long-term to the Court’s hardcore rightwing bloc led by Justice Clarence Thomas. Roberts is also an ultra-conservative. He just favors a slower, more gradual approach to the erosion of fundamental rights. Death by a thousand cuts, if you will, rather than a bullet to the back of the head.
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