The front of Hugo L Black Courthouse in Birmingham, Alabama on August 15, 2023. (Jemma Stephenson/Alabama Reflector)
A three-judge panel Monday declined Alabama Secretary of State Wes Allen’s request to delay their order for a special master to draw new congressional maps for the state.
In a 26-page opinion, U.S. Circuit Court Judge Stanley Marcus and U.S. District Court judges Anna Manasco and Terry Moorer wrote that they saw “no basis” to stay their Sept. 5 ruling.
“Absent relief now, the Plaintiffs will suffer this irreparable injury until at least 2026, which is more than halfway through this census cycle,” they wrote. “The Secretary offers no reason, let alone a compelling one, why Alabamians should have to wait that long to vote under a lawful congressional districting map.”
The state filed an long-promised emergency appeal to the U.S. Supreme Court on Monday evening, asking the court to block the lower court order.
“Without a stay, the State will have no meaningful opportunity to appeal before the 2023 Plan is replaced by a court-drawn map that no State could constitutionally enact,” the filing said.
The appeal asked for a stay by Oct. 1. Plaintiffs had not yet responded as of Monday evening.
The judges ruled last week that a congressional map approved by the Legislature in July failed to address their findings in 2022 that the state’s 2021 map unconstitutionally packed Black voters into a single congressional district and muted their voices in the political process.
Citing the high amount of racially polarized voting in Alabama — where white Alabamians tend to support Republicans and Black Alabamians tend to support Democrats — the court said the state needed to draw a second congressional district that was majority-Black “or something quite close to it.” The ruling was upheld by the U.S. Supreme Court last June.
The Legislature’s July map created a 7th Congressional District in the western Black Belt whose voting age population was 50.65% Black, and a 2nd Congressional District in the Wiregrass that was just under 40% Black. The judges last week ordered a special master to draw new maps, writing that they were “deeply troubled” that the map did not follow their directions.
“The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice,” the judges wrote. “The 2023 Plan plainly fails to do so.”
The state argued in court that drawing maps that plaintiffs in the case sought amounted to “affirmative action” and would violate special redistricting criteria prioritizing “communities of interest” that the state including in the July bill establishing new districts. The language lists the Black Belt, the Wiregrass and the state’s coastal counties of Mobile and Baldwin as communities of interest. The state has argued that remedial maps could break up Mobile and Baldwin counties.
Both the lower court and the U.S. Supreme Court have rejected the argument.
The state indicated last week it would appeal to the nation’s high court, and asked the court to stay its ruling while the appeal proceeded.
“Absent a stay, the State will be compelled to cede its sovereign redistricting power to the Court so that Alabamians can be segregated into different districts based on race,” the attorney general’s office wrote in a brief.
Marcus, Manasco and Moorer rejected the state’s arguments, writing that Allen was unlikely to succeed on the merits.
“The Secretary has lost three times already, and one of those losses occurred on appeal,” they wrote.
The court also rejected the state’s arguments that it would suffer irreparable harm, saying the plaintiffs would be the ones to suffer under a stay.
“Having prevailed at every turn so far, the Plaintiffs are entitled to relief,” the judges wrote. “Having lost at every turn so far, the Secretary cannot support a demand that Alabamians again cast their votes under an unlawful map while he tries for the fourth time to prevail.”
The judges wrote that Alabama’s interest is fair elections.
“The Plaintiffs — like all Alabamians — already have endured one congressional election in this census cycle that the Secretary administered under an unlawful map,” they wrote. “We see no reason to allow that to happen again.”
The court also pushed back against the standards implemented by the Legislature in the bill accompanying the new map in July. The state argued that the maps better fit Alabama’s redistricting rules, such as compactness or “communities of interest.”
“The Secretary cannot avoid Section Two liability merely by devising a plan that excels at the traditional criteria the Legislature deems most pertinent,” they wrote.
In a Friday filing, the lawyers for the Milligan plaintiffs argued that the court should not grant a stay for reasons including the harm that the stay would cause Alabamians.
“The Secretary’s one-sentence reference to irreparable harm and complete silence on the public interest tells the whole story: Both factors unequivocally favor leaving this Court’s decision intact,” they wrote. “It is Plaintiffs, not the Secretary, who are at greatest risk of irreparable harm if this Court were to grant a stay, halt its remedial process, and delay relief through another election.”
The court rejected a stay application from the state in January 2022. The U.S. Supreme Court ultimately delayed the ruling past the 2022 elections, though it ultimately sided with plaintiffs.
Updated at 2:39 p.m with additional comments from Monday’s decision and earlier briefs and at 8:37 p.m. with the state’s appeal to the U.S. Supreme Court.
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