Breaking: Unanimous 3-Judge Federal Court Holds Alabama Defied Supreme Court in Allen v. Milligan, Must Draw Another Minority Opportunity Congressional District

You can find the unanimous, 217-page opinion at this link. The Court castigated Alabama both for its failure to obey the Supreme Court’s order and for its delay:

We have reached these conclusions only after conducting an exhaustive analysis of an extensive record under well-developed legal standards, as Supreme Court precedent instructs. We do not take lightly federal intrusion into a process ordinarily reserved for the State Legislature. But we have now said twice that this Voting Rights Act case is not close. And 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.

We are disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstance we face. 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 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. . . .

We observe that absent relief now, the Plaintiffs will suffer this irreparable injury until 2026, which is more than halfway through this census cycle. Weighed against the harm that the State will suffer — having to conduct elections according to a court-ordered districting plan — the irreparable harm to the Plaintiffs’ voting rights unquestionably is greater. We next find that a preliminary injunction is in the public interest. The State makes no argument that if we find that the 2023 Plan perpetuates the vote dilution we found, or that the 2023 Plan likely violates Section Two anew, we should decline to enjoin it….

The court also unanimously rejected the argument that the Section 2 remedy was unconstitutional, an issue that there was room to argue (given Justice Kavanaugh’s concurrence in Allen v. Milligan):

In contrast, the Voting Rights Act and the Gingles analysis developed to guide application of the statute “do[] not mandate a proportional number of majority-minority districts.” Allen, 143 S. Ct. at 1518 (Kavanaugh, J., concurring). Section Two expressly disclaims any “right to have members of a protected class elected in numbers equal to their proportion in the population.” 52 U.S.C. § 10301(b). And “properly applied, the Gingles framework itself imposes meaningful constraints on proportionality, as [Supreme Court] decisions have frequently demonstrated.” Id. at 1508 (majority opinion). So unlike affirmative action in the admissions programs the Supreme Court analyzed in Harvard, which was expressly aimed at achieving balanced racial outcomes in the makeup of the universities’ student bodies, the Voting Rights Act guarantees only “equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race.” De Grandy, 512 U.S. at 1014 n.11. The Voting Rights Act does not provide a leg up for Black voters — it merely prevents them from being kept down with regard to what is arguably the most “fundamental political right,” in that it is “preservative of all rights” — the right to vote. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1315 (11th Cir. 2019).

But a faulty premise and prematurity are not the only problems with the State’s argument: it would fly in the face of forty years of Supreme Court precedent — including precedent in this case — for us to hold that it is unconstitutional to order a remedial districting plan to include an additional minority-opportunity district to satisfy Section Two. In the Supreme Court, the State argued that the Fifteenth Amendment “does not authorize race-based redistricting as a remedy for § 2 violations.” Allen, 143 S. Ct. at 1516. The Supreme Court rejected this argument in two sentences: “But for the last four decades, this Court and the lower federal courts have repeatedly applied the effects test of § 2 as interpreted in Gingles and, under certain circumstances, have authorized race-based redistricting as a remedy for state districting maps that violate § 2. In light of that precedent . . . we are not persuaded by Alabama’s arguments that § 2 as interpreted in Gingles exceeds the remedial authority of Congress.” Id. at 1516–17 (internal citations omitted).

I expect Alabama will seek emergency relief at the Supreme Court and it will lose. The only real argument Alabama would have following the earlier Supreme Court decision is a constitutional one, and it was barely developed on remand. I expect if Justice Kavanaugh is to eventually entertain it, it would be in a case where the issue was much more fully briefed and developed.

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