In the Alabama redistricting case, readers will recall the May 8 unanimous 571-page-opinion from one judge first appointed by Reagan and two judges appointed by Trump; the opinion said, inter alia, “try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.”

Travis Crum noted at the time that this decision made an ideal candidate for “bail-in” back into the preclearance regime under section 3 of the Voting Rights Act, which remains a viable (but underutilized) path to preclearance in the face of intentional misbehavior.

One set of plaintiffs in Alabama have asked for section 3 bail-in.  Friday afternoon, the DOJ weighed in, opposing the need for preclearance and asserting that outright defiance of federal courts in the service of discrimination isn’t discrimination that’s flagrant enough to matter under the statutory standard. 

(The brief also has a curious Etch-a-Sketch approach to both history and precedent.  It claims that the “Supreme Court found in 2013 that Alabama’s past constitutional and statutory violations of the right to vote were insufficient to sustain continued coverage under Section 5.”  There’s no pincite for that claim.  Given the discussion at pp. 2629-30 of Shelby County, I think that’s a particularly strained reading of what the Supreme Court actually found in the case.)