The court’s 571-page opinion is here. This decision is on remand from the Supreme Court’s 5-4 ruling in Allen v. Milligan.

This is the latest decision in the long-running Section 2 litigation against Alabama’s congressional redistricting plans. Back in 2021, Alabama passed a congressional redistricting plan that created one majority-Black district out of seven districts, even though the State’s voting-age population is 27% Black. Civil rights groups successfully obtained a preliminary injunction, but the Supreme Court stayed that injunction in a shadow docket ruling. Then, in 2023, the Supreme Court shocked the voting rights community by affirming the preliminary injunction and ordering Alabama to create two Black-opportunity districts.

Alabama’s response was defiance. Alabama adopted a 2023 plan in which the second purportedly Black-opportunity district was only 39.9% Black. Once again, the district court enjoined the plan. This time, the Supreme Court allowed the injunction to go into effect without any noted dissents.

This, then, brings us to the present decision. In its massive and meticulous decision, the three-judge district court held that Alabama violated Section 2 of the VRA and that its 2023 plan was enacted with discriminatory intent. On the statutory claim, the district court relied heavily on decades of Section 2 precedent. Put simply, the Supreme Court’s affirmance in Milligan laid the groundwork for this part of the decision.

By contrast, the district court’s constitutional, intentional discrimination holding is far more newsworthy and potentially sets up another visit to the Supreme Court. Here, the district court—which includes two Trump appointed judges—was obviously frustrated by Alabama’s recalcitrance. The district court opined that “[i]t would be remarkable—indeed, unprecedented—for us to hold that a state legislature that purposefully ignored a federal court order acted in good faith.” Thus, Alabama’s 2023 plan dug itself deeper into a hole. That is because the district court will now entertain the Milligan plaintiffs’ motion to bail-in Alabama into the VRA’s preclearance regime under Section 3(c). If granted, Alabama would have to seek federal pre-approval for any congressional redistricting plan through the 2030 redistricting cycle.

As I previously argued on this blog in favor of bailing-in Alabama: “what is to stop Alabama from redrawing its congressional map for the 2026, 2028 or 2030 elections? Unfortunately, not much. Alabama’s Constitution prohibits mid-decade redistricting of state legislative districts, but it’s silent about congressional maps. There’s nothing in the U.S. Constitution barring mid-decade redistricting.”

For its part, the district court acknowledged that Alabama remained free to engage in mid-decade redistricting. And more importantly for future proceedings, the district court telegraphed that it is very open to a bail-in remedy in this case. The key paragraph reads:

“We emphasize that we remain deeply disturbed that the State purposefully enacted a map that the State readily admits does not provide the required remedy for the vote dilution that we clearly found. We also emphasize our concern that the State’s assertion in response to any injunction we may issue, it is free to repeat its checkmate move. We are troubled by the State’s view that even if we enter judgment for the Plaintiffs after a full trial, the State remains free to make the same checkmate move again—and again, and again, and again.”

Thus, the district court recognizes that Alabama is engaging in gamesmanship—the very behavior that preclearance was designed to eradicate. The Jim Crow-era game of whack-a-mole is alive and well in the heart of Dixie.

This is an ideal case for a bail-in to go to the Supreme Court. Recall that the Supreme Court’s decision in Shelby County invalidated only the VRA’s coverage formula, not preclearance as a solution. And it said nothing about Section 3(c)’s bail-in mechanism for imposing preclearance. To be sure, we know from Shelby County that Justice Thomas would invalidate preclearance, and his conservative colleagues might share that view. But Alabama’s defiance of the first Milligan decision received no public support from any of the four conservative Justices who previously dissented. And at a time when the Trump Administration’s potential defiance of judicial rulings looms over the Supreme Court, Alabama’s behavior in this litigation may well prove counter-productive.

One final point. Section 3(c) allows a State to seek preclearance from either the local district court or the Attorney General. Given the recent gutting of DOJ’s Voting Section, one must be skeptical that the Trump DOJ would enforce Section 3(c)’s retrogression protections in good faith. Nevertheless, preclearance is the appropriate remedy in this case. And it is the best fact pattern since Shelby County for getting the Supreme Court’s imprimatur on Section 3(c)’s constitutionality, which matters not only for this specific provision but also for future congressional efforts to revise the VRA.