Tomorrow, the three-judge district court in the Alabama congressional redistricting litigation will hold a hearing on whether to bail-in Alabama to the VRA’s preclearance regime. If bailed-in, Alabama would have to seek preapproval for any redistricting changes from either DOJ or that court through the 2030 redistricting cycle.
Readers may remember this case as the Supreme Court’s surprising 5-4 ruling in Allen v. Milligan back in 2023. More recently, this past May, the district court found that Alabama’s proposed remedial map—which flagrantly disobeyed Milligan by failing to create a second Black-opportunity district—was enacted with discriminatory intent. I’ve previously argued on this blog (see here and here) why Alabama’s defiance necessitates bail-in as a remedy. Right now, I want to make some global comments and flag some points from the briefs that readers might find interesting.
1. We are twelve years out from Shelby County, and this is the fifth time that a State has been under a credible bail-in threat. Unfortunately, no State has been bailed-in during this time. In the 2010s, Texas twice escaped being bailed-in for its voter ID law and its redistricting plan after passing animus laundering laws that took off the roughest edges of the prior statutes. Around the same time, North Carolina was not bailed-in by the Fourth Circuit notwithstanding a finding that its voter-suppression law had been enacted with invidious intent. That strategic move helped evade Supreme Court review. And in 2022, Florida was bailed-in by a district court for its third-party voter registration law, but the Eleventh Circuit overturned the predicate finding of intentional discrimination thereby avoiding the Section 3(c) question.
The Alabama fact pattern is far worse than these unsuccessful bail-ins. Unlike Texas—which ameliorated its problematic laws—Alabama doubled down and defied a court order by failing to draw a second Black-opportunity district. Indeed, the three-judge district court had very harsh words on this very point back in May, suggesting that it was open to a bail-in remedy. Given Alabama’s bluster about gamesmanship being a prerequisite for bail-in, it appears that Alabama thinks States should get one free pass in evading court orders. If one is fine, what’s the line for triggering bail-in? Two, three, or four redistricting maps that defy court orders?
2. The specter of mid-decade redistricting now haunts the political landscape. President Trump is pushing Red States like Texas and Missouri to redraw their maps, and Blue States are threatening to do so in retaliation. If the norm against mid-decade redistricting were to evaporate, Alabama may face considerable political pressure to eliminate its second Black-opportunity district. And here is where the rubber hits the road. Alabama’s purported concession that it will not engage in mid-decade redistricting is from the current leaders of the state house and state senate. But those leaders cannot bind a future legislature—nor are they guaranteed to remain as leaders if politics dictated their replacement to draw another 6-1 Republican map.
3. The Milligan plaintiffs have alternatively requested that the three-judge district court retain jurisdiction to hear challenges to any new redistricting plans through the 2030 census. Put simply, this would not be a bail-in because Alabama would not have to preclear any changes. Rather, the same panel would hear any new challenges. This is an interesting litigation strategy, and it is obvious why the plaintiffs would want to keep this panel. However, it could raise interesting post-CASA questions about federal courts’ equitable powers, ones that dovetail with the points raised about Article III in Justice Thomas’s Alexander concurrence.
4. Alabama does not contest Section 3(c)’s constitutionality. Tellingly, Texas made the same decision back in the 2010s. Nonetheless, Alabama argues that it does not qualify for bail-in because there have not been multiple constitutional violations. On this front, Alabama’s arguments mirror Texas’s once again—and I have covered and refuted them extensively before (see here, here, here, here, here, and here). That said, I continue to believe that Shaw violations—which concern excessive use of race—are not the type of unconstitutional conduct that should count in the bail-in analysis, thereby taking the 2010s ALBC litigation off the table for the Milligan plaintiffs. In a similar vein, the 1990s DOJ objection should also not count, as it was based on the now repudiated “Black maximization” policy.
5. Alabama’s potential bail-in is happening against the backdrop of the Eighth Circuit’s twin holdings that Section 2 lacks a private cause of action and that Section 1983 cannot be used as a substitute. This matters for two reasons. First, Section 3(c) is some of the best textual evidence that the VRA is supposed to be enforced by private parties, as it authorizes bail-in relief in suits brought by the Attorney General and “aggrieved person[s].” Second, the Trump administration’s amicus brief opposing bail-in showcases the absurdity of the federal government—particularly this administration—being the sole actor empowered to bring Section 2 suits.
6. Because there’s a direct right to appeal to the Supreme Court, an Alabama bail-in is almost certain to get heard on the merits calendar. But as I wrote previously, this is an ideal case for a bail-in to go to the Supreme Court given Alabama’s defiance of the first Milligan decision. This case, therefore, could well decide if preclearance remains a viable mechanism post-Shelby County, which will set the stage for any future VRA revisions.
Unfortunately, the court is not live streaming the hearing, but I hope to post additional thoughts once a transcript becomes available.