Federal judges express frustration with Alabama attorneys over congressional map

A panel of three federal judges Monday appeared skeptical of a congressional map produced by the Alabama Legislature and frustrated by the state’s apparent refusal to create a district where Black candidates could compete.

That frustration spilled over into closing arguments presented by Alabama Solicitor General Edmund LaCour, who told judges that the Legislature’s map — with a district with a 51% Black population and a second with a 40% Black population — was as close as the state could get to drawing a second majority-minority district without violating the Constitution or the court’s own ruling in the case, known as Allen v. Milligan.

“What I hear you saying is the state of Alabama deliberately disregarded our instruction,” said U.S. District Judge Terry Moorer.

The court in January 2022 ruled that the state’s 2021 congressional maps violated Section 2 of the Voting Rights Act, and ordered the state to draw a new map with a remedy that included a second majority-Black congressional district “or something quite close to it.” The judges in the case signaled at the hearing in Birmingham Monday that they did not think the state had reached that.

U.S. District Judge Anna Manasco asked LaCour what the state’s position would be if the court did tell them to draw a second majority-minority district.

“I think our position would be that would be a violation of Allen vs. Milligan,” he said.

The tense back and forth at the end of the day came after a morning where the plaintiffs and defendants did not seem to be in agreement over the purpose of the hearing.

LaCour appeared eager to reargue portions of the case – something the judges involved expressly said they would not do – while plaintiffs challenging the state urged the court to reject the state-approved maps as ignoring its 2022 finding that the congressional maps violated Section 2 of the Voting Rights Act. 

U.S. Circuit Judge Stanley Marcus asked if they, in this case, are in the “first inning of the first game” in this case, while plaintiffs and defendants clashed over how federal law applied to the matter at hand.

The hearings also featured recordings introduced by plaintiffs where the House chair of the Permanent Legislative Redistricting Commission said he declined to put his name on the map that eventually passed the Legislature.

‘Quite close to it’?

The three-judge court – consisting of Marcus, appointed by President Bill Clinton, and Manasco and Moorer, both appointed by President Donald Trump – ruled in January 2022 that the state’s 2021 congressional map likely violated Section 2 of the Voting Rights Act. Citing the high degree of racial polarization in voting in Alabama, where white voters tend to support Republicans and Black voters tend to support Democrats, the court ruled that the remedy would be a second majority-Black district or “something quite close to it.” The U.S. Supreme Court upheld the ruling in June.

The state-approved maps create a 7th Congressional District in Birmingham and west Alabama that is 50.65% Black, and a 2nd Congressional District in southeast Alabama that is 40% Black. The plaintiffs – divided into two groups known as the Milligan plaintiffs and the Caster plaintiffs — said those maps would not give Black voters in the 2nd district any chance to elect their preferred candidates. 

Abha Khanna, who represents the Caster plaintiffs, said during arguments Monday that Alabama has “squandered” the opportunity to draw their own maps, and that the state has not made a “serious effort to remedy a serious violation.”

She said “Alabama has chosen to thumb its nose” at this court, the Supreme Court and Black voters.

In closing remarks, Khanna said that the state’s “response is that they are going to do what has already been struck down.”

“Racial polarization in Alabama is intense and it is stark,” she said.

The state has insisted that its maps better follow traditional redistricting principles and want to challenge 11 illustrative maps filed in the original hearing. The maps were upheld by the lower court and the Supreme Court and the judges have said they do not wish to relitigate them.

“We are the only party here who is giving Allen vs. Milligan a serious reading,” LaCour said.

LaCour, echoing arguments made by the state in earlier filings, argued that plaintiffs’ maps are racial gerrymandering through race predominating. The state’s maps would not be racial gerrymandering because they take into account other things, such as county splits and communities of interest. 

LaCour declined comment after the hearing on Monday

The Gingles test

The arguments focused on Thornburg v. Gingles, a 1986 Supreme Court case that created criteria for Section 2 of the Voting Right Acts violations. 

The Gingles test has three prongs: the minority group must be “sufficiently large and geographically compact” enough for a district, the at-question minority group must be “politically cohesive,” and the majority group must be “politically cohesive” in a way that defeats the minority group’s preferred voter.

The plaintiffs say that the relevant portion of the Gingles test are prongs two and three as they said one wasn’t in dispute. The state says that they need to discuss prong one, while they concede prongs two and three, and LaCour said “none of those factors are in dispute.”

After the hearing, Deuel Ross, with the NAACP Legal Defense Fund and attorney for the Milligan plaintiffs, said to reporters that one was the provision debated in the first preliminary hearing, so it was no longer in dispute. He said that the state was applying the standard to be in reference to the new redistricting rules they adopted along with the new map in last month’s special session.

“That’s not what the standard is and that’s exactly what the Supreme Court said is standard just as a couple of months ago in this case,” he said.

The state’s attorneys leaned into an argument that they left “communities of interest” as intact as possible. The bill that passed with the 2023 map defines them as the Wiregrass, Black Belt and Gulf Coast.

The plaintiffs admitted some evidence to the point of communities of interest but said it depends on how the court decides the scope of the case will go.

Disagreements

In opening arguments, Ross played recordings of depositions of Sen. Steve Livingston, R-Scottsboro, and Rep. Chris Pringle, R-Mobile, the chairs of the Legislature’s redistricting committee, discussing the maps. The eventual map that passed the Legislature was a “Livingston” map.

Pringle said in his deposition that LaCour had met with the Senate. Pringle said he was informed that the version of the map from the Senate would be the one that passed. Pringle said he felt his map better addressed the Voting Rights Act and wanted Livingston’s name on it. 

Ross said they expected the court to draw a new map, and the law was very clear about the issue.

“Our expectation is that the trial court will strike down the new map, and that if Alabama appeals to the Supreme Court, and the Supreme Court will have the same result that it had just a couple months ago,” he said.

He said that the plaintiffs are not asking for a specific illustrative map, and the court can draw a map that balances the communities that Alabama wants to respect and the ability for Black voters to have representation.

After the hearing, some Alabama lawmakers were in attendance at a news conference in front of the court house.

House Minority Leader Anthony Daniels, D-Huntsville, said they expected a new map to be drawn.

“As the plaintiff’s attorney mentioned, the defiance over compliance, and I think that there are going to be some severe consequences over choosing defiance over compliance, and we look forward to really seeing the court decide,” he said.

At the end of the hearing, Khanna asked the court if they were going to get trapped in a loop of stays and end up with the state’s current map for the 2024 election.

“We are not waiving the right to seek a stay,” LaCour said.

Editor’s Note: this story has been updated to reflect that not just House members attended the news conference