The following is a guest post from Travis Crum:
Alabama is once again the frontline of the fight for voting rights. After two years of litigation, Alabama now has two Black-opportunity congressional districts. But unfortunately, there are shockingly few barriers to Alabama nullifying this victory in the near future, either through a mid-decade redistricting or after the 2030 Census. Alabama, therefore, should be “bailed-in” to the Voting Right Act’s (VRA) preclearance regime and be required to seek federal approval of any congressional redistricting plans for the next ten years.
To understand why this strong remedy is appropriate, one needs only to look at the history of the Allen v. Milligan litigation. Following the 2020 Census, Alabama enacted 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 challenged that plan under Section 2 of the VRA and convinced a three-judge district court with two Republican-appointed judges to preliminarily enjoin the plan. Instead of redrawing its congressional map, Alabama promptly obtained a stay on the Supreme Court’s shadow docket by a 5-4 vote. That stay, along with similar moves in cases against other Southern States, may have cost Democrats the House in 2022.
Then, in a surprising 5-4 decision this past June, the Supreme Court rejected Alabama’s attempt to rewrite the VRA and sided with the civil rights groups. In response, Alabama’s legislature adopted a plan in which the second Black-opportunity district was only 40% Black. The district court rejected that map for failing to abide by its prior ruling that “any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close.”
Alabama returned to the Supreme Court and sought a stay of that decision. With no noted dissents, the Supreme Court denied the stay. In some ways, this second shadow docket ruling is unsurprising: what began as a dispute about race and redistricting was re-framed as one about judicial power. Even the Court’s conservatives appear wary of a State openly flouting its rulings.
And last Thursday, the district court adopted a remedial plan that creates two Black-opportunity districts. Alabama has signaled that it will use this plan for the 2024 midterms.
But 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, and the Supreme Court declined to prohibit the practice in a case stemming from Texas’s mid-2000s redistricting. Even if Alabama doesn’t engage in mid-decade redistricting, it could once again crack the Black Belt after the 2030 Census.
Courts would likely look at any new map afresh. Indeed, as Texas’s actions in the voter ID case and its 2010 redistricting saga showcase, courts are loath to input the behavior of a past legislature onto a future one, thereby laundering discriminatory animus across multiple redistricting plans.
Prior to the Supreme Court’s 2013 decision in Shelby County v. Holder invalidating the VRA’s coverage formula, Alabama could not have dismantled the second Black-opportunity district and thereby circumvent its loss in Milligan. That is because Section 5 of the VRA prohibited the retrogression of minority voting strength, and federal authorities would not have precleared such a plan. But Shelby County effectively neutralized Section 5.
So what is the solution? Known as the bail-in provision, Section 3(c) of the VRA authorizes courts to impose preclearance in response to a violation of the Fourteenth or Fifteenth Amendments. To be clear, the district court has not yet made such a determination, which requires a finding of discriminatory intent. So far, the three-judge district court has focused on a statutory violation of Section 2 of the VRA, which only requires a discriminatory result. But Alabama’s flagrant disobedience of the court’s order is strong grounds for bringing a bail-in request based on Alabama’s discriminatory intent.
In a 2006 decision, the Supreme Court opined that the dismantling of a Latino-opportunity district “bears the mark of intentional discrimination that could give rise to an equal protection violation” because Texas “took away the Latinos’ opportunity because Latinos were about to exercise it.” A similar logic applies here. Alabama had been ordered by a court to create a second Black-opportunity district, and when faced with that choice, Alabama opted for defiance rather than compliance.
Furthermore, this fact pattern is the precise reason why preclearance was an appropriate remedy. During Jim Crow, plaintiffs would obtain favorable judicial rulings only to see the Southern jurisdiction change its law in response. This game of whack-a-mole led to preclearance as an innovative solution that froze in place minority voters’ wins against recalcitrant States.
Alabama’s defiance is also a reminder that Congress needs to pass voting rights reform. One of the provisions of the John R. Lewis Voting Rights Advancement Act would make it possible to impose preclearance in response to statutory violations. But even absent that legislation, Alabama can—and should—be required to preclear its congressional plans for the next ten years.