Alabama Republicans took a major step toward openly defying the U.S. Supreme Court on Monday, advancing a new congressional map that fails to comply with the court’s landmark Voting Rights Act decision in June. In Allen v. Milligan, Chief Justice John Roberts ordered the state to draw an additional congressional district that gives Black voters a meaningful opportunity to elect the representative of their choice; instead, Republican legislators have drawn a white-majority district that Donald Trump would have handily carried in 2020. Lawmakers passed this map out of committee on a party-line vote, and the GOP-controlled Legislature appears likely to adopt it by Friday.
There is no real chance that the district court which struck down Alabama’s first map will uphold this one. It will be dead on arrival—as Republican legislators must realize. It seems, then, that these lawmakers hope the Supreme Court will decline to enforce a ruling that is barely a month old. Like Louisiana Republicans, who are currently pursuing a similar tactic over a similar racial gerrymander, Alabama legislators think the Supreme Court may walk back its newfound commitment to the Voting Rights Act. More than half a century after the Civil Rights Movement, these Southern states are maintaining their resistance to multiracial democracy and looking to the Supreme Court to play along.
The political subjugation of Black Americans in Alabama today is stark—so stark that even Roberts and Justice Brett Kavanaugh could not deny it. After the 2020 census, the state Legislature enacted a brazen racial gerrymander designed to dilute the votes of racial minorities. It carved up Alabama’s two majority-Black regions, Montgomery and the Black Belt, distributing voters of color into majority-white districts where they would hold little political influence. The Legislature then crammed remaining voters of color into a single majority-Black district. As a result, Black residents controlled just one of Alabama’s seven congressional districts, even though they made up nearly a third of the state’s population.
A three-judge district court—which included two Trump appointees—found that this map violated the Voting Rights Act by denying minority voters an equal opportunity to elect representatives of their choice. In June, the Supreme Court agreed, with Roberts and Kavanaugh joining the three liberal justices to uphold the district court’s ruling. Roberts’ opinion sharply criticized Alabama for its contrived efforts to nullify what remains of the VRA. It gave a full-throated endorsement to the district court opinion, which ordered the state to draw two districts “in which Black voters either comprise a voting-age majority or something quite close to it.”
A court can’t get much clearer than that. And yet it was apparently not explicit enough for Alabama Republicans: As the New York Times’ Emily Cochrane reported on Monday, the Legislature’s reapportionment committee adopted a map that has two alleged “opportunity districts”—those in which minority residents have a fair shot at electing their favored representative. The first has a Black voting-age population of 52 percent. The second has a Black voting-age population of 42 percent.
In other words, Alabama Republicans’ new court-mandated district still has a white majority. If it had existed during the 2020 election, Trump would have easily carried it. And remember: this is the “opportunity district” that, by court order, must give Black residents a reasonable chance of voting their preferred representative into Congress.
The Legislature’s task here was not a difficult one. It is quite easy to draw two majority-Black districts that do not unduly divide “communities of interest.” The committee, however, refused to do so. Presuming the Legislature enacts this map, the district court will shoot it down; after all, a Black voting-age population of just 42 percent is not “quite close” to a majority. The court will then appoint a special master to draw a map that complies with its order. If Alabama Republicans appeal to the Supreme Court once again, do not expect five votes in their favor. True, Kavanaugh opened the door to future gamesmanship against the VRA in his concurrence. But he is already touting his vote in this case as proof that the Supreme Court isn’t partisan. He is unlikely to tolerate lawmakers’ flagrant disobedience of the decision, especially when they have failed to concoct any justification beyond a desire to continue discriminating.
Louisiana Republicans are a bit smarter. Last year, a different district court found that their congressional map also violated the VRA and ordered the creation of an additional majority-Black district. In June, the Supreme Court lifted a hold on that decision with a suggestion that it should be resolved in time for the 2024 election. Louisiana lawmakers are now resisting that order at the U.S. Court of Appeals for the 5th Circuit. In a recent filing, they seized upon Kavanaugh’s concurrence, which ominously warned that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” They allege that the VRA’s expiration date has now arrived, depriving courts of their authority to mandate a second “opportunity district” in Louisiana. While this claim seems blatantly in opposition to both the spirit and letter of Roberts’ majority opinion in Milligan, it may well work as a delay tactic.
Challenges to maps in Georgia, Mississippi, and Texas under the VRA are also ongoing, so Louisiana’s claim has alarming implications for redistricting across the South. While Alabama’s goose is probably cooked, Kavanaugh did arguably invite Louisiana’s defense, and the ultraconservative 5th Circuit may view it favorably. It would be odd, though, for Kavanaugh to cast such a historic vote to save the VRA, tout that vote on the lecture circuit as evidence of his nonpartisanship, then reverse himself almost immediately. The justice may have been looking ahead to the next round of redistricting in 2030 rather than giving Republicans an immediate get-out-of-VRA-free card. Either way, the fight for racially equitable redistricting isn’t over. And as Alabama’s chicanery illustrates, if Roberts and Kavanaugh want to spare their decision from the shredder before the ink dries, they’re going to have to quash this brewing red-state rebellion.