As Alabama special session starts, no clear picture of congressional map proposals

As today’s special session begins, three things are certain.

Democrats appeared to have difficulty agreeing on a map; Republicans are keeping their ideas to themselves, and no one really knows what the state’s new congressional map might look like. 

The Alabama Legislature must approve new maps for the state’s seven U.S. House districts by Friday, following a U.S. Supreme Court ruling last month that upheld a lower court ruling that found the state’s 2021 redistricting map violated the Voting Rights Act.  

If the Legislature misses the deadline, or submits maps that do not satisfy the three-judge panel, the court could appoint a third party to draw the maps.

Democrats and Republicans are in predictably different postures over the purpose of the session. Though divided on approaches, Democrats expect the final map to include two districts where Black voters will at a minimum make up a substantial portion of the electorate, creating a competitive district. 

“They have different approaches to different things, different goals,” said Rep. Sam Jones, D-Mobile during a meeting of the Permanent Legislative Committee on Reapportionment on Thursday. “And I think that’s fine. And I’ve really appreciated all the information we’ve gotten. The one thing that concerns me though, is that there are some maps that have nothing on that we don’t know what’s being proposed. And we go into session on Monday. And I’m very concerned about that.” 

Kareem Crayton, senior director of voting rights and representation at the Brennan Center in New York, said that the focus of an appointed special master would prioritize remedying the court’s order. He called remedying the legal violation their “main charge.”

“Essentially drawing two districts rather than one where African Americans have an equal opportunity to elect a candidate,” he said.

Republicans have kept silent about their preferred approach. But Rep. Chris Pringle, R-Mobile, speaking against a Democratic amendment on map-drawing guidelines, hinted at the Thursday meeting that the GOP could test the boundaries of the court order. 

“The proposed amendment would enable the guidelines, embedded in the guidelines, arguments by the counsel for Milligan and Caster plaintiffs about the U.S. Supreme Court recent decision in Allen vs. Milligan and for that reason alone should be rejected,” he said.

But Crayton said that it will be hard for Republicans to draw a map that benefits them while telling a court that it provides sufficient representation to Black voters in the state.

“Can you likely create seven districts that are surefire Republican districts?” Crayton said. “I don’t think so with this court order, but it may be that some people try.”

The lawsuit

Since 1992, the 7th congressional district – encompassing most of the western Black Belt and portions of Birmingham, Montgomery and Tuscaloosa – has been Alabama’s only majority-minority district. 

Shortly after the Alabama Legislature approved its new maps in November 2021, a group of plaintiffs sued over the congressional maps, arguing that they packed Black voters into one congressional district and muted the voices of Black voters outside it, making it extremely difficult for them to participate meaningfully in the political process. The case eventually became Allen v. Milligan.

Letetia Daniels Jackson, a Dothan businesswoman and plaintiff in the Milligan case, told the committee Thursday that she did not feel represented in the 2nd congressional district, which is about 60% white and 32% Black. U.S. Rep. Barry Moore, R-Enterprise, who represents the district in Congress, to her area of the district, she said. 

“When I receive notices of meetings, they are never anywhere near where Black voters live and frequent,” she said.

An email seeking comment was sent to Moore’s office Friday.

A three-judge panel, consisting of two Trump appointees, ruled for the plaintiffs in January 2022, citing in part racially polarized voting in Alabama, where white voters tend to support Republicans and Black voters tend to support Democrats. 

The three-judge panel wrote that the remedy would likely be a second congressional district where Black voters “either comprise a voting-age majority or something quite close to it.” 

The U.S. Supreme Court delayed the ruling the following month and heard arguments in the case last fall. In a surprise 5-4 decision in June, the conservative court allowed the lower court ruling to stand. 

“A district is not equally open … when minority voters face—unlike their majority peers—bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter,” Chief Justice John Roberts wrote in the majority opinion.

The three-judge panel gave the state a July 21 deadline to submit new maps. A hearing in the case is scheduled for August. 

Maps

What the maps will look like remains unknown. The districts most likely to be affected are the 1st Congressional District centered around Mobile and represented by U.S. Rep. Jerry Carl, R-Mobile; the 2nd Congressional District in southeast Alabama, represented by Moore; the 6th Congressional District, encompassing much of central Alabama and suburban Birmingham, represented by U.S. Rep. Gary Palmer, R-Hoover, and the 7th, represented by U.S. Rep. Terri Sewell, D-Birmingham. 

The four representatives’ offices did not respond to messages last week seeking comment. 

Former Sen. Jim McClendon, R-Springville, who led past redistricting efforts, said that in the past, the state has focused on compactness, communities of interest and low deviation. He said they tried to keep deviation, or the amount of variation in population sizes, at zero.

“There’s a legal angle to this, and there are plenty of folks that feel like a zero deviation will please the courts as far as not varying population sizes in the congressional districts,” he said.

Rep. Chris England, D-Tuscaloosa, said that deviation is allowed when trying to remedy things like issues in the Voting Rights Act. Even then, England said it’s best to keep any deviation as low as possible.

“If you’re trying to accomplish other objectives, like making sure that you satisfy the Voting Rights Act, for example, so but in order to make sure that you’re obviously within a threshold, it’s much easier to get to that point if you don’t have any deviation at all,” England said.

Deviation and remedying the Voting Rights Act violation are completely different entities, according to Crayton, so deviation amounts should not be impacted by the map remedies.

In the proposal from the Milligan and Caster plaintiffs, there are two districts that are majority Black. Sen. Vivian Davis Figures, D-Mobile, and England seemed to lean towards this map. 

In the two maps proposed by Sen. Bobby Singleton, D-Greensboro, and Sen. Rodger Smitherman, D-Birmingham, there are “opportunity” districts that keep Jefferson County relatively intact.

One of the maps, labeled as a Campaign Legal Center (CLC) map and spoken for by Singleton Thursday, is not endorsed by the CLC.

In a letter addressed to the committee and provided to the Reflector, Mark P. Gaber, senior director of redistricting at the Campaign Legal Center, wrote that the maps were meant to respond to the state’s arguments for the 2021 congressional map, and aimed to show that Alabama could have had drawn districts with substantial Black voting populations while still keeping Gulf Coast communities whole.

“The State still passed over numerous alternatives that would have improved opportunities for Black voters while accommodating purported desires to keep the Gulf Coast/Mobile region whole in a single district and retain the cores of prior districts,” Gaber wrote.

In a map drawn by Alabama Democratic Conference chair Joe Reed, there are two majority Black districts, but the map splits 87 precincts. Both Democrats and Republicans appeared skeptical of Reed’s proposal, in part because of the high number of splits.

England has called Milligan map a good place to start. Figures will sponsor the bill proposing the map. 

“I think if you’re thinking about what’s going to keep a court, what’s going to get a court to say yes, and the plaintiffs from that not objecting, it seems to me the sort of obvious answer is to follow kind of the general guidelines or outline of what the plaintiffs’ methods offer,” Crayton said.

Republicans, who will have the final say on what passes the Legislature, were more guarded in sharing their preferences. “Communities of interest” was a theme at the public hearings, with Pringle and some citizens saying that Mobile and Baldwin– the two coastal counties– should remain together in the new maps. The map supported by the Milligan plaintiffs splits Mobile County between two congressional districts.

“It’s not a final judicial determination and does not preempt the committee’s ability and responsibility under the guidelines to identify and respect communities of interest, including the Gulf Coast and the Black Belt,” Pringle said.

The court said that the interest of keeping the Black Belt together outweighs the interests of the coastal counties.

In the Allen v. Milligan ruling, Roberts wrote in the majority opinion that keeping the Gulf Coast counties together was “insufficient.” 

“Even if the Gulf Coast did constitute a community of interest, moreover, the District Court found that plaintiffs’ maps would still be reasonably configured because they joined together a different community of interest called the Black Belt,” wrote Roberts.

Crayton said the high court ruled that the federal law takes precedence.

“So if the Voting Rights Act tells you, you should keep the Black Belt contained and organized together,” he said.  “And the cost of that is dividing the coastal counties, then you do it.

Some Black Republicans in the state came to the public hearing Thursday to say that they felt they were being stereotyped by the assumption that the Democratic party is synonymous with Black voters. 

Belinda Thomas, a city councilwoman in Newton in Dale County, who is both Black and a Republican, told the panel she wanted the Wiregrass region to stay together in a district that included Montgomery. Montgomery, which is about 57% Black, would likely be drawn into a new majority-Black or substantially-Black congressional district under Democratic proposals.

“I was elected for my beliefs and what I want to do for the people, not because of my color,” Thomas said.

In a letter read to the committee on Thursday, Alabama Attorney General Steve Marshall, whose office has represented Alabama in the redistricting lawsuits, wrote that Alabama did not need two majority Black districts.

“Only four justices, not a majority, found on a limited record before the District Court that Caster plaintiffs’ map drawers did not cross the line from mere consciousness of race to predominately using race,” wrote Marshall, referencing Justice Brett Kavanaugh’s partial concurrence.

Kavanaugh’s in-part concurrence with the majority focused on the Gingles case, a 1986 case where the court ruled that North Carolina violated the Voting Rights Act due to a lack of majority Black districts, and what it would take to overrule standing precedent. 

Kavanaugh wrote that Alabama’s premise for their maps was incorrect writing that the case requires a majority-minority district when a state “cracks or packs a large and ‘geographically compact’ minority population” and if someone challenging the map can show a “reasonably configured” alternative. 

“And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing — whether intentional or not – of large and geographically compact minority populations,” the justice wrote. 

Crayton said that violating the court’s order could indicate that Republicans want the special master to draw the maps rather than them.

“Which would be quite the ironic outcome for a group that has spent a lot of time talking about the ills of federal government overreaching, but it gives them an opportunity to draw a map, and we’ll see if they take it,” he said.