Alabama civil asset forfeiture law and process upheld by SCOTUS
Attorney General Steve Marshall applauded the U.S. Supreme Court’s 6-3 opinion protecting the traditional law enforcement power to seize contraband and the proceeds and instrumentalities of crime. Alabama Solicitor General Edmund LaCour argued the case Culley v. Marshall in the Supreme Court on October 30, 2023. In a statement, Marshall said, “The U.S. Supreme Court affirmed our previous victories in these cases. Law enforcement officers across Alabama work hard every day to keep their fellow citizens safe while respecting their constitutional rights. And the Court confirmed that those rights were respected.” The two plaintiffs had each loaned their cars to men who were stopped and arrested when Alabama police found controlled substances in their cars. According to court documents, “The State of Alabama filed a forfeiture complaint against Halina Culley’s car on February 27, 2019, just 10 days after the seizure of the car. But Culley waited six months before answering that complaint. And she waited another year—until September 21, 2020—before raising an innocent owner defense in a motion for summary judgment. Soon thereafter, on October 30, 2020, an Alabama state court granted Culley’s motion and ordered the return of her car. Lena Sutton similarly moved slowly in her forfeiture proceeding. Alabama brought a forfeiture case against Sutton’s car on March 6, 2019, just 13 days after the seizure of the car. Sutton initially failed to appear in the case, causing the state court to enter a default judgment for Alabama. Sutton later requested that the state court set aside that judgment, and the state court did so. Sutton then submitted a brief answer and served discovery requests on Alabama, but Sutton otherwise took no action until the state court set a date for the forfeiture trial. On April 10, 2020, three weeks before the scheduled trial date, Sutton finally moved for summary judgment on the ground that she was an innocent owner. Soon thereafter, on May 28, 2020, the state court granted her motion, and she recovered her car” The Attorney General’s office noted, that under Alabama law, “vehicles used to facilitate the transportation of controlled substances may be forfeited upon proper process. But if the owner of a seized vehicle is found to be innocent at a hearing, the property is returned. In these cases, the plaintiffs had access to the full protections of the judicial system within days. Still, they claimed a constitutional right to yet another hearing, which Alabama argued ‘would interfere with important law-enforcement activities” and risk property being “removed, destroyed, or put to illegal use.’ Justice Brett Kavanaugh’s majority opinion agreed with Alabama’s understanding of the Due Process Clause and affirmed the decision of the U.S. Court of Appeals for the Eleventh Circuit, dismissing the case.” In his statement, Marshall thanked the team who successfully litigated these cases from the district court to the Supreme Court, including Solicitor General Edmund LaCour, Deputy Solicitor General Robert Overing, Assistant Chief Deputy Attorney General Brad Chynoweth, and Assistant Attorney General Brenton Smith.
AG Steve Marshall: Private individuals can’t bring Section 2 Voting Rights Act claims
Alander Rocha, Alabama Reflector The Alabama Attorney General’s office argued in a motion filed last week in a Louisiana congressional redistricting case that private individuals cannot bring actions under a key provision of the Voting Rights Act. In a motion signed on by 12 Republican-led states, including Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, Nebraska, South Carolina, Texas, and West Virginia, Alabama Attorney General Steve Marshall argued to the 5th Circuit Court of Appeals that Section 2 of the Voting Rights Act does not give private individuals the right to sue, or uphold an individual’s right to obtain monetary damages for claims of intentional discrimination. “There is no Section 2 liability unless ‘it is shown that’ members of a protected class ‘have less opportunity’ not just ‘to elect representatives of their choice’ but also ‘to participate in the political process,’” the motion argued. The argument rests on a recent 8th Circuit Court of Appeals opinion by Judge David Stras, appointed by former President Donald Trump, which argued that Congress only gave attorney generals the right to claim damages under the Section 2 of the Voting Rights Act. The attorney general’s office did not return a request for comment Monday. The argument, if upheld by the federal courts, would severely limit future challenges under Section 2, which bans voting and election practices that discriminate by race. NAACP Legal Defense Fund Deuel Ross, the organization representing plaintiffs who challenged both Louisiana and Alabama’s maps, said in a phone interview that Louisiana’s case won’t impact the Allen v. Milligan case decision in Alabama, the challenge that led to the court-ordered redrawing of Alabama’s congressional map, as Alabama is in the 11th Circuit Court of Appeals. Ross said the argument Marshall raised does not have merit, and that it should be rejected. “We’ll see what happens in the 5th Circuit, but the court has already rejected that argument; there’s Supreme Court precedent rejecting that argument,” Ross said. “And in the Alabama case, specifically, because it’s not in the 5th Circuit, anything that happens in the 5th Circuit won’t directly impact the Alabama case.” The case, Robinson v. Ardoin, is similar to Allen v. Milligan. Plaintiffs in the Louisiana case are challenging a map with just one majority-Black district lawmaker, adopted despite a federal district court order. Louisiana’s Black population exceeds 30%, which the court said merits a second Black district out of six total. Marshall’s argument cites a 1971 Supreme Court case, Whitcomb v. Chavis, that states “that [B]lacks enjoyed full access to the political process, and thus held that the ‘failure of the ghetto to have legislative seats in proportion to its population emerges more as a function of losing elections than of built-in bias …’” The 1971 case, the motion argued, “explained that ‘[participation] in the political processes’ meant those activities most common to voters: being ‘allowed [1] to register or vote, [2] to choose the political party they desired to support, [3] to participate in its affairs[,] … [4] to be equally represented on those occasions when legislative candidates were chosen,’ and [5] not be ‘regularly excluded from the slates of both major parties.’” The United States Supreme Court in September denied Alabama’s request to stay a lower court decision directing a special master to draw new state congressional maps to remedy Voting Rights Act violations, opening the door to Alabama having two congressional districts with majority or near-majority Black populations. A three-judge panel in 2022 ruled that Alabama’s 2021 congressional map violated the Voting Rights Act by packing Black voters into a single congressional district. The panel, citing the racial polarization of voting in Alabama — where white Alabamians tend to support Republicans and Black Alabamians tend to support Democrats — ordered the state to draw a second-majority Black district or “something quite close to it.” After the U.S. Supreme Court upheld the lower court ruling last June, the Alabama Legislature in July approved a new map that created a 7th Congressional District in western Alabama and Birmingham with a BVAP of 50.65%, and a 2nd Congressional District in southeastern Alabama with a BVAP of less than 40%. Plaintiffs said that map did not address the court’s orders, and the three-judge panel agreed earlier this month. U.S. Circuit Judge Stanley Marcus and U.S. district judges Anna Manasco and Terry Moorer ordered special master Richard Allen to draw new maps, accusing legislators of ignoring their initial ruling. The state appealed to the Supreme Court, arguing the ruling would lead to “racial stereotyping” and violated their own redistricting principles. Alabama’s attorneys also made efforts to sway Justice Brett Kavanaugh, who joined most but not all of the court’s decision in June upholding the lower court ruling. The Alabama attorney general’s office frequently cited Kavanaugh’s opinion in a case banning affirmative action in college admissions, suggesting that plaintiffs and the lower court wanted to use “affirmative action” in the redistricting process. Marshall’s office ended the brief by concluding that Black Americans have the same voting rights as their white counterparts, and that vote dilution can only occur when people are prevented from participating in the political process. “The district court’s contrary rule is circular with no offramp,” the motion stated. “’[D]emands for outcomes’ will persist even decades ‘follow[ing] the cutting away of obstacles to full participation.’” Plaintiffs in the Louisiana case had not responded to Marshall’s brief as of early Monday evening. Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Follow Alabama Reflector on Facebook and Twitter.
U.S. Department of Justice to join suit against AG Steve Marshall’s abortion prosecution threats
by Alander Rocha, Alabama Reflector The U.S. Department of Justice (DOJ) is joining a lawsuit seeking to stop Alabama Attorney General Steve Marshall from prosecuting those who help Alabama women obtain abortion services out of state. In a motion to intervene filed on Thursday, attorneys for DOJ argued that the right to travel between states was a fundamental American right, dating back to the Articles of Confederation. The filing cited a clause of the 14th Amendment in arguing that the right to travel is one of the rights of national citizenship provided by the Constitution. “The right to travel embraces more than just physical movement; it also protects an individual’s right to engage in conduct that is lawful in other states while in those states, regardless of their home state’s laws,” the motion stated. The lawsuit, filed on July 31 by former abortion providers in the state, cited comments made by Marshall in an August 2022 radio interview, where he suggested Alabamians helping people obtain legal abortion care in other states could face felony prosecutions. The lawsuit alleges Marshall’s comments and the threat of prosecution forced healthcare providers to cease providing critical information, counseling, and practical support to Alabamians exercising their constitutional right to access medical care across state lines. After the lawsuit was filed, Marshall renewed his threats to prosecute out-of-state abortion care. U.S. District Judge Myron Thompson postponed a hearing set for Oct. 31, and the hearing has not been rescheduled. The DOJ motion Thursday argued that states lack the authority to prohibit travel across state lines and can’t prevent third parties from helping individuals seek an abortion out-of-state. “The Alabama AG cannot undermine the right to travel by making each traveling individual an island unto themselves, prohibited from receiving assistance from anyone else within the state,” attorneys for DOJ wrote. Health care providers sue Alabama officials over threats of prosecution in abortion aid The motion further argued that the United States and its federal agencies have an interest in states not criminalizing travel, or the assistance of travel, across state lines to access healthcare. “The United States has a sovereign interest in preserving the proper functioning of the federal system, including by ensuring that one state does not improperly intrude into the affairs of other states, thereby protecting the integrity of the Union itself,” the motion stated. The motion also referenced Supreme Court Justice Brett Kavanaugh’s opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 ruling that struck down the right to abortion. “As Justice Kavanaugh has explained, the question of whether a State may ‘bar a resident of that State from traveling to another State to obtain an abortion’ is ‘not especially difficult’ — ‘the answer is ‘no’ based on the constitutional right to interstate travel,’” according to the motion. The motion also argued that the state does not have the right to prevent organizations or individuals from providing help for out-of-state abortion care, noting that the Supreme Court has ruled that helping people travel is equally protected. When a state prevents third-party assistance for travel, the motion argued, it violates that right to travel. If restrictions were allowed for conduct that the state prohibits, that could open the door to “problematic state laws.” “A state that criminalized gambling could go further and prevent its residents from assisting with travel to casinos in Mississippi or Nevada, based solely on its policy disagreement with those states on that issue,” the motion said. The attorney general’s office had not responded to the motion as of Thursday evening. Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Follow Alabama Reflector on Facebook and Twitter.
Supreme Court Justice Kavanaugh predicts ‘concrete steps soon’ to address ethics concerns
Supreme Court Justice Brett Kavanaugh told a judicial conference on Thursday he hopes there will be “concrete steps soon” to address recent ethics concerns surrounding the court, but he stopped short of addressing calls for justices to institute an official code of conduct. “We can increase confidence. We’re working on that,” Kavanaugh told the conference attended by judges, attorneys, and other court personnel in Ohio. He said all nine justices recognize that public confidence in the court is important, particularly now. Public trust in the court is at a 50-year low following a series of divisive rulings, including the overturning of Roe v. Wade federal abortion protections last year, and published reports about the justices’ undisclosed paid trips and other ethical concerns. “There’s a storm around us in the political world and the world at large in America,” Kavanaugh said. “We, as judges and the legal system, need to try to be a little more, I think, of the calm in the storm.” Justice Clarence Thomas acknowledged recently that he took three trips last year aboard a private plane owned by Republican megadonor Harlan Crow even as he rejected criticism over his failure to report trips in previous years. Reporting by the investigative news site ProPublica also revealed that Justice Samuel Alito failed to disclose a private trip to Alaska he took in 2008 that was paid for by two wealthy Republican donors, one of whom repeatedly had interests before the court. The Associated Press also reported in July that Justice Sonia Sotomayor, aided by her staff, has advanced sales of her books through college visits over the past decade. The AP obtained thousands of pages of documents that showed how justices spanning the court’s ideological divide lent the prestige of their positions to partisan activity — by headlining speaking events with prominent politicians — or to advance their own personal interests. “My perspective is we’re nine public servants who are hard-working and care a lot about the court and care a lot about the judiciary as a whole,” Kavanaugh said. He added that he believes justices “respect the institution and want that respect for the institution to be shared by the American people, recognizing that people are going to disagree with our decisions.” Besides Roe v. Wade, Kavanaugh pointed to a series of lesser-noticed rulings that featured unusual line-ups that “didn’t follow some pattern” based on the political leanings of the justices’ appointing presidents. Kavanaugh, 58, is one of three justices nominated by former President Donald Trump who have reshaped the court in recent years. He has sided with conservative majorities in affirmative action and student loan rulings, as well as in the Dobbs case that overturned Roe. He joined liberal justices this term in backing Black voters in a case out of Alabama and preserving a federal law aimed at keeping Native American children with Native families. Kavanaugh took questions from Jeffrey Sutton and Stephanie Dawkins Davis, chief judge and judge, respectively, of the 6th U.S. Circuit Court, at the conference. At one point, brandishing a dog-eared copy of the Constitution plucked from his jacket, Kavanaugh urged the gathering to act with constitutional consistency, civility, and respect — including taking special care that losing parties in lawsuits understand their rulings. “I think this is important for all judges,” he said. “Respect for our system, which we all believe in, depends on the losing party still respecting the process. That’s hard to do. They’re not going to be happy, and so, to write an opinion the losing party understands and respects, they’re going to take the decision to heart.” Republished with the permission of The Associated Press.
Alabama will challenge decision in redistricting case
Alabama Attorney General Steve Marshall’s office announced in a statement late on Tuesday that the state will appeal Tuesday’s ruling by the federal three-judge panel rejecting the Alabama Legislature’s latest congressional redistricting map. Marshall’s office said, “While we are disappointed in (Tuesday’s) decision, we strongly believe that the legislature’s map complies with the Voting Rights Act and the recent decision of the U.S. Supreme Court.’ In filed papers with the Court, Alabama Secretary of State Wes Allen disclosed an intent to appeal the three-judge panel decision. The Legislature passed a new congressional redistricting map in a July special session. In June, the state was ordered to create a map with two majority-minority districts or something close to it by the three-judge panel. The Republican supermajority of the Alabama Legislature ignored the instructions of the court order and instead just increased the percentage of Black Voters in Alabama’s Second Congressional District from 30% to 39.9% and called it an “opportunity district.” The three-judge panel wrote that that partisan new map still violates the Voting Rights Act of 1965 and ordered a court-appointed special master to draw Alabama’s new congressional district lines. “We are deeply troubled that the state enacted a map that the state readily admits does not provide the remedy we said federal law requires,” the Judges wrote in their order on Tuesday. The state disagrees and will appeal to the Eleventh Circuit Court of Appeals and the U.S. Supreme Court. Legislators close to the redistricting told Alabama Today that appealing this case to the Supreme Court was always the plan and that they expected the three-judge panel would find against the state’s map. Marshall himself, in recent remarks to the Alabama Republican Party Executive Committee in Montgomery, expressed skepticism that the three-judge panel would find in favor of the state but that the state would appeal. The same three-judge panel ruled in 2022 that Alabama’s 2021 congressional redistricting map also violated the Voting Rights Act and ordered the state Legislature to draw a new map. Instead, the state defied the Court by refusing to draw a new map. The state appealed then to the U.S. Supreme Court. The Supreme Court initially stayed the three-judge panel order of a new map and allowed the 2022 congressional elections to proceed under the 2021 map. The Supreme Court, however, eventually ruled in June in favor of the civil rights groups suing the state and upheld the three-judge panel’s 2022 preliminary ruling that the state had likely violated the Voting Rights Act. The Supreme ruled 5 to 4 that the 2021 congressional redistricting map likely does violate the Voting Rights Act and referred the case back to the three-judge panel. The majority decision was written by Chief Justice John Roberts and supported by the three liberal justices. Brett Kavanaugh was the deciding vote. The state is staking its case on Kavanaugh reversing himself and instead finding in favor of the State of Alabama when the state makes its case before the Court for a second time. The Supreme Court is under no obligation to even hear this case. Also at issue is whether the 2024 congressional elections will use the July map drawn by the Legislature or the new map that the three-judge panel ordered on Tuesday for a special master to draw. The special master won’t be finished with that new map until September 25. The state has said it needs to have a map in place by October 1, as major party qualifying for the election will begin next month. If the Court agrees to hear the state’s appeal, it will take months for the legal process, and the major party primaries are set for March 5. At this point, no one in the State of Alabama knows with any certainty which congressional district they live in moving forward. The state contends it cannot draw a map with two majority-minority districts that is suitably compact and doesn’t divide communities of interest. The state has argued that dividing Mobile County or putting Mobile and Baldwin Counties (the two Alabama Gulf Coast counties) in separate congressional districts is unreasonable. They also say that the Wiregrass region of southeast Alabama should not be divided. The civil rights groups suing the state argue that these concerns are secondary to the Voting Rights Act. They demand that communities of color be allowed to pick their own congressional representation. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Federal appeals court rejects Alabama Congressional redistricting map
On Tuesday, a three-judge panel struck down the Alabama Legislature’s new congressional redistricting map. The Court is expected to appoint a special master to redraw Alabama’s congressional map because the state Legislature refused to draw a map compliant with the Court’s previous order to draw a map with two majority-minority districts. In June, the Court ordered the state to submit a map with two majority-minority districts or something close to that. Instead, Alabama Republicans simply drew a map increasing the percentage of Black voters in Republican Congressman Barry Moore’s Second Congressional District from 30% to 39.9%. “We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district,” the judges wrote in a 196-page ruling. The plaintiffs in the Milligan v Allen case that challenged the original 2021 redistricting as not compliant with the Voting Rights Act of 1965 rejected the second map. On Tuesday, the Court issued a ruling agreeing with the plaintiffs. None of this was unexpected. Alabama Attorney General Steve Marshall in August told the Alabama Republican Executive Committee meeting in Montgomery that he was skeptical of the three-judge panel ruling in favor of the state. The state lost a narrow 5 to 4 decision before the U.S. Supreme Court. The Court in June affirmed that the three-judge panel in Atlanta was correct in its initial 2022 decision to halt Alabama’s election under the 2021 redistricting. After the initial judgment, the three-judge panel’s decision to block the 2022 election, the Supreme Court ruled that the three-judge panel likely had been right that the 2021 redistricting was not compliant with the Voting Rights Act. The special master has been given until September 25 to redraw Alabama’s Congressional districts, creating a second majority-minority district. The state is expected to ask the Supreme Court to stay the three-judge panel ruling and hear this case as they did last year. The state will likely ask the Supreme Court to again stay the three-judge panel’s ruling to allow the 2024 elections to take place under the partisan 2022 redistricting. The plaintiffs suing the state will undoubtedly challenge any legal maneuvering by the state of Alabama. State Senators close to the redistricting decision explained to Alabama Today that the state is staking its hope on Supreme Court Justice Brett Kavanaugh switching sides and voting with the four conservative jurists: Samuel Alito, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. All of this is dependent on the Supreme Court even considering the case. They are not obligated by law to take up the matter. Kavanaugh voted with Chief Justice John Roberts, who wrote the decision for the majority. The three-judge panel is comprised of one Clinton appointee, Circuit Judge Stanley Marcus, and two Trump appointees, District Judge Anna Manasco and District Judge Terry Moorer. Candidate qualifying with the two major political parties begins in October, so the state needs to know what the district boundaries will look like by October 1. If this decision is applied to other southern states, including Texas and Florida, Democrats could pick up as many as twelve new majority-minority districts, likely flipping control of the U.S. House of Representatives to the Democrats in the 2024 elections. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Legislature to finish redistricting today
On Friday, both Houses of the Alabama Legislature will meet on redistricting. The federal appeals court in Atlanta has set Friday, July 21, as the deadline for the state to submit a new congressional redistricting for the court to consider in the state’s ongoing Voting Rights Act case concerning congressional redistricting. There are a lot of disagreements in the Legislature on what plan the legislators should pass. Legislative Democrats, the plaintiffs in the lawsuit against the state, and civil rights groups believe that to comply with the Voting Rights Act of 1965, the state should pass a plan with two majority-minority districts. This would almost certainly mean a pickup of one House of Representatives seat for Democrats in the U.S. Congress as Alabamians overwhelmingly vote along racial lines, with over 90% of Black Alabamians preferring Democrats and over 80% of White Alabamians preferring Republicans in recent elections. Alabama’s Legislative Republicans have rejected calls by Democrats to turn Alabama’s Second Congressional District into a majority-minority district. Congressional District 2 is currently represented by Congressman Barry Moore (R-Enterprise) – who served two terms in the Alabama House of Representatives from 2010 to 2018. Moore is a Republican, a member of the conservative Freedom Caucus, and an ardent Donald Trump supporter. Currently, 30% of the voters of CD2 are Black. State Senator Rodger Smitherman (D-Birmingham) has introduced a plan that would turn Congressional District 2 into a majority-minority district with over 50% of the voters in the district being Black. Republicans rejected that map as well as others introduced by Sen. Bobby Singleton (D-Greensboro) and other Democrats. Republicans maintain that the court has not ruled on Milligan v. Allen that the state is in violation of the Voting Rights Act. Democrats look at the same U.S. Supreme Court ruling and the recent order by a three-judge panel of the Eleventh Circuit Court of Appeals and say that the court did not provide the state with enough guidance to know what an “opportunity district” means. “That could be 42% (Black voters), that could be 38%, we just don’t know,” Senate President Pro Tempore Greg Reed (R-Jasper) told reporters. House Republicans have passed a plan by State Representative Chris Pringle (R-Mobile) they title the community of interest plan where Congressional District 2 is over 42% Black. Pringle maintains that that is close enough racially so that it is winnable by either party. Senate Republicans have passed a competing plan by State Sen. Steve Livingston (R-Scottsboro). The Livingston plan would only raise the Black voting age population of CD2 from 30% Black to 38% Black. Livingston said his plan kept communities of interest together and is the most compact while still providing an opportunity district for Black voters in Congressional District 2. More radical elements in the Legislature had called for turning Alabama’s Seventh Congressional District into an opportunity district that would be potentially winnable by Republicans. Congressional District 7 is represented by Terri Sewell – the only Democrat and the only Black representative in the congressional delegation. Both Pringle and Livingston, while deeply divided on the merits of their respective plans, did not go that far, and Congressional District 7 remains majority Black. Livingston said that his plan kept the Wiregrass whole and in the Second Congressional District, and it keeps the Gulf Coast and Mobile County whole. The House passed Pringle’s plan on Wednesday, but when he brought his bill to the Senate, Livingston motioned to substitute the Pringle plan for the Livingston plan. The Committee passed that motion. Pringle then stormed out of the room without continuing to present his bill. His bill, now the Livingston Bill, was passed by the Committee along party lines, with Democrats voting against it and Republicans voting for it. The one exception was State Senator Andrew Jones (D-Centre). His primary disagreement with the Livingston plan is that a small portion of northwest Etowah County would be in Congressional District 4, while 90% of Etowah County would switch to Congressional District 3. Jones told reporters he did not care whether Congressman Mike Rogers (R-AL03) or Robert Aderholt (R-AL04) represented Etowah County. “My issue is that historically Etowah County has not been divided,” Jones, who represents Etowah and Cherokee Counties, said. Smitherman told reporters that he and Sen. Singleton had brought their own federal lawsuit and joined Milligan and the other plaintiffs. Smitherman said that it is his understanding that the plaintiffs will be given the opportunity to tell the court whether the plan passed by the Legislature satisfies their concerns or not. “Right now, I can’t support either (Republican) plan,” Smitherman said. Smitherman has demanded that the Apportionment Committee prepare a report on the plans showing the likelihood of a Democrat or a Republican winning each of these. “They can get that, or they already know it and don’t want to release it,” Smitherman said, Since the GOP is wildly divided on which plan they will advance to federal court, there is uncertainty about what the Legislature will pass on Friday. “Obviously, there will be negotiations,” Reed said. A compromise plan can be substituted on the floor of either House. Failing that, any difference between the House and Senate plans would be settled by a conference committee. If that happens, then under the circumstances, both Houses will recess until the conference committee returns with a conference committee plan to vote on. If the state and the plaintiffs cannot agree on a redistricting plan that is acceptable to both sides, a trial will likely be held in the eleventh circuit. Whatever is ultimately decided by the federal appeals court in Atlanta will likely be appealed by whichever party is dissatisfied with the outcome meaning that the Milligan case could go back to the Supreme Court, where Justice Brett Kavanaugh appears to be the swing vote. There is even a possibility that this case may not be resolved until after the 2024 elections. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Justice Brett Kavanaugh seeks to dispel the notion that the Supreme Court is partisan
Justice Brett Kavanaugh pointed to the mixed U.S. Supreme Court decisions this term as he sought Thursday to dispel notions that it is partisan, even after conservatives brought about the end of affirmative action in college admissions and struck down President Joe Biden’s student loan debt relief program. “The court is an institution of law. It’s an institution of law, not of politics, not of partisanship,” Kavanaugh said at a judicial conference in Minnesota, in the first public remarks by a justice since the court recessed for the summer late last month. The Supreme Court has been reshaped by the three justices nominated by President Donald Trump, including Kavanaugh. Although Kavanaugh sided with the conservative majorities in the affirmative action and student loan rulings, as well as last summer’s ruling overturning the nationwide right to abortion, he was also part of the mixed conservative and liberal majorities this term that backed Black voters in Alabama and preserved a federal law aimed at keeping Native American children with Native families. And the term was marked by other notable surprises, rejecting conservative positions in a North Carolina redistricting case that could have reshaped elections across the country, while backing the Biden administration in a fight over deportation priorities. “We have lived up, in my estimation, to deciding cases based on law and not based on partisan affiliation and partisanship,” Kavanaugh said. “We don’t caucus in separate rooms. We don’t meet separately. We’re not sitting on different sides of the aisle at an oral argument. … We work as a group of nine.” Speaking to an audience of judges, attorneys, and court personnel from the 8th Circuit, which stretches from Minnesota and the Dakotas south to Arkansas, Kavanaugh said he didn’t fully appreciate until he joined the court how much time the nine justices spend alone with each other. He estimated that they eat lunch together around 65 times a year. “And the rule at lunch is you can’t talk about work,” he said. “It’s a good rule. … It builds relationships and friendships, and then when we have tough cases — and we only really have tough cases — you have a reservoir of goodwill toward each of the other people.” Kavanaugh said he was warmly welcomed in his first term in 2018 by then-Justices Ruth Bader Ginsburg and Stephen Breyer, who were part of the court’s liberal wing. He also praised his working relationships with the two newest justices, conservative Amy Coney Barrett and liberal Ketanji Brown Jackson. Kavanaugh, who was the justice most often in the majority this term in divided cases, said the Supreme Court hears 60 to 70 cases a term and that only a relative few might get most of the attention. But he said there are lots of 9-0 decisions, and there can also be a lot of 7-2 and 6-3 decisions. “All sorts of different lineups,” he said. “And so I might be working with Sonia Sotomayor on the Andy Warhol case, while we disagree on a case on the competition clause. We’re not going to let our relationship where we’re working together on one suffer just because we disagree on the other. And that’s going on with all nine of us on a daily basis.” Kavanaugh only briefly mentioned the ethics issues that have dogged some justices — including conservatives Clarence Thomas and Samuel Alito and the liberal Sotomayor — and potentially undermined public confidence in the court. He noted that Chief Justice John Roberts said in May that the justices were continuing to work on that as a group. “That’s accurate,” he said. “I’m not going to add anything to what the chief justice has said on that topic.” Roberts offered no specifics at the time, and the justices have not adopted an ethics code. Kavanaugh said people getting upset when the high court makes difficult decisions comes with the territory. He said the best the justices can do is try to be consistent, clearly explain their reasoning, and try to show that they actually are working as a team of nine on difficult cases instead of caucusing on a partisan basis. “You shouldn’t be in this line of work if you don’t like criticism,” he said. “Because you’re going to get it. And you’re going to get a lot of it.” Republished with the permission of The Associated Press.
AG Steve Marshall applauds Supreme Court ruling upholding Christian web designer’s right to deny service to a gay wedding
On Friday, Alabama Attorney General Steve Marshall welcomed a 6 to 3 U.S. Supreme Court ruling that protects a Denver area Christian web designer’ from having to build a website for a gay couple’s same-sex wedding in violation of her Christian principles and beliefs. 303 Creative and its owner, Lorie Smith, is a graphic artist and website designer in Colorado. Smith expanded her business into wedding website design. Smith’s deeply held Christian beliefs prohibit her from promoting same-sex weddings. Colorado’s anti-discrimination law forbids businesses from denying service to LGBTQ+ persons seeking service. Under that law, if Smith designed and promoted custom websites for opposite-sex weddings, she would have to design and promote custom websites for same-sex weddings too. Smith filed a suit claiming that the law violated her First Amendment rights to practice her religion and her free speech rights and that the Colorado law as such is a blatant violation of the Bill of Rights. The lower court ruled against her. Undeterred, Smith appealed to the Tenth Circuit Court of Appeals, which also ruled against Smith, and then appealed to the Supreme Court. The Supreme Court’s opinion in 303 Creative v. Elenis reaffirms that the First Amendment prohibits the government from forcing citizens, including business owners, from speaking messages with which they disagree. In the 6-3 opinion, the Supreme Court reversed the Tenth Circuit Court of Appeals decision against Smith. “The Constitution and our First Amendment prevail,” Marshall said in a statement. “All Americans enjoy the right to freedom of conscience, and that freedom means the government cannot coerce anyone to speak against their deeply held beliefs,” said Attorney General Marshall. “Today’s decision confirms that state and local government are not ‘immune to the demands of the Constitution.’” In June 2022, Attorney General Marshall signed on to a 20-state amicus brief urging the Supreme Court to protect the First Amendment rights of business owners. The brief argued in support of Smith. Liberty Counsel, a nonprofit legal advocacy group that defends religious liberty, also filed an amicus brief in favor of the web designer’s right to deny service. Liberty Counsel said in a statement that the Colorado state law censors and coerces the speech of creative professionals whose religious beliefs do not conform to state-accepted beliefs. Liberty Counsel Founder and Chairman Mat Staver said, “This is a great victory for the right of individual speech and expression. The state cannot force people to convey a government-approved message against their religious beliefs or individual choice. Film, theater, art, and other creative expression would not exist if the government could censor the message.” Justice Neil Gorsuch wrote the opinion, which was joined by Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett. The three liberal Justices, Sonia Sotomayor, Elena Kagan, and Kentanji Brown Jackson, dissented. “The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well-intentioned or deeply ‘misguided,’ and likely to cause ‘anguish’ or ‘incalculable grief.’ Equally, the First Amendment protects acts of expressive association,” Justice Gorsuch wrote. “Generally, too, the government may not compel a person to speak its own preferred messages. Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. All that offends the First Amendment just the same.” “Applying these principles to this case, we align ourselves with much of the Tenth Circuit’s analysis,” Gorsuch continued. “The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as ‘pure speech’ under this Court’s precedents. We agree. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain ‘images, words, symbols, and other modes of expression.’ They have stipulated that every website will be her ‘original, customized’ creation. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to ‘celebrate and promote the couple’s wedding and unique love story’ and to ‘celebrate and promote’ what Ms. Smith understands to be a true marriage. We part ways with the Tenth Circuit only when it comes to the legal conclusions that follow. While that court thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise.” “Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are ‘unique,’” Gorsuch continued. “In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes.” “The First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers),” Gorsuch wrote. If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.” Justice Sotomayor wrote the dissent. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor wrote. “New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.” The last day of Pride Month perhaps ironically ends with a Supreme Court ruling affirming that LGBTQ+ rights do not mean that the state can deprive other citizens of their free speech and religious liberty rights. The Human Rights Campaign (HRC) released a statement denouncing the decision. “This decision by the Supreme Court is a dangerous step backward, giving some businesses the power to
Supreme Court preserves law that aims to keep Native American children with tribal families
The Supreme Court on Thursday preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children, rejecting a broad attack from some Republican-led states and white families who argued it is based on race. The court left in place the 1978 Indian Child Welfare Act, which was enacted to address concerns that Native children were being separated from their families and, too frequently, placed in non-Native homes. Tribal leaders have backed the law as a means of preserving their families, traditions, and cultures and had warned that a broad ruling against the tribes could have undermined their ability to govern themselves. The “issues are complicated,” Justice Amy Coney Barrett wrote for a seven-justice majority that included the court’s three liberals and four of its six conservatives, but the “bottom line is that we reject all of petitioners’ challenges to the statute.” Justices Clarence Thomas and Samuel Alito dissented, each writing that Congress lacks the authority to interfere with foster care placements and adoptions, typically the province of the states. The decision, Alito wrote, “disserves the rights and interests of these children.” But Justice Neil Gorsuch, a Colorado native who has emerged as a champion of Native rights since joining the court in 2017, wrote in a separate opinion that the decision “safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties.” The leaders of tribes involved in the case called the outcome a major victory for tribes and Native children. “We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long,” said a joint statement from Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman. President Joe Biden, whose administration defended the law at the high court, noted that he supported the law 45 years ago when was a Democratic senator from Delaware. “Our Nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them,” Biden said in a statement. Congress passed the law in response to the alarming rate at which Native American and Alaska Native children were taken from their homes by public and private agencies. The law requires states to notify tribes and seek placement with the child’s extended family, members of the child’s tribe, or other Native American families. Three white families, the state of Texas, and a small number of other states claimed the law is unconstitutional under the equal protection clause because it was based on race. They also contended it puts the interests of tribes ahead of children and improperly allows the federal government too much power over adoptions and foster placements, areas that typically are under state control. The lead plaintiffs in the Supreme Court case — Chad and Jennifer Brackeen of Fort Worth, Texas — adopted a Native American child after a prolonged legal fight with the Navajo Nation, one of the two largest Native American tribes, based in the Southwest. The Brackeens are trying to adopt the boy’s 5-year-old half-sister, known in court papers as Y.R.J., who has lived with them since infancy. The Navajo Nation has opposed that adoption. At last fall’s arguments, several conservative justices expressed concern about at least one aspect of the law that gives preference to Native parents, even if they are of a different tribe than the child they are seeking to adopt or foster. Among them was Justice Brett Kavanaugh, who was in the majority Thursday in favor of the tribes. But Kavanaugh injected a cautionary note in a separate opinion focused on the preferences for Native foster and adoptive parents. “In my view, the equal protection issue is serious,” Kavanaugh wrote, commenting that the race of prospective parents and children could be used to reject a foster placement or adoption, “even if the placement is otherwise determined to be in the child’s best interests.” The Supreme Court dealt with that issue by determining that neither Texas nor the parents had legal standing to make that argument in this case. The Brackeens and others can make those arguments in state court proceedings, the justices said. Matthew McGill, who represented the Brackeens at the Supreme Court, said he would press a racial discrimination claim in state court. “Our main concern is what today’s decision means for the little girl, Y.R.J . — now five years old — who has been a part of the Brackeen family for nearly her whole life. The Court did not address our core claim that ICWA impermissibly discriminates against Native American children and families that wish to adopt them, saying it must be brought in state court,” McGill said in a statement. All the children who have been involved in the current case at one point are enrolled or could be enrolled as Navajo, Cherokee, White Earth Band of Ojibwe, and Ysleta del Sur Pueblo. Some of the adoptions have been finalized, while some are still being challenged. More than three-quarters of the 574 federally recognized tribes in the country and nearly two dozen state attorneys general across the political spectrum had called on the high court to uphold the law. The Supreme Court had twice taken up cases on the Indian Child Welfare Act before, in 1989 and in 2013, that have stirred intense emotion. Before the Indian Child Welfare Act was enacted, between 25% and 35% of Native American children were being taken from their homes and placed with adoptive families, in foster care, or in institutions. Most were placed with white families or in boarding schools in attempts to assimilate them. Republished with the permission of The Associated Press.
Democratic leadership address the Supreme Court rejection of Alabama’s congressional redistricting
On Thursday, the United States Supreme Court ruled that Alabama must redraw the state’s congressional map to allow an additional Black majority district to account for the fact that the state is 27% Black. The Alabama House Democratic Caucus and the Alabama Legislative Black Caucus both applauded the ruling. Alabama House Minority Leader Anthony Daniels (D-Huntsville) said, “During a severely short and limited map-drawing process, our Caucus spoke at length about our view of the law and provided ways the state could craft at least two districts that reflect fair political opportunities for African American voters.” “We are therefore pleased that the Supreme Court affirmed the decision of the unanimous district court, which found the Alabama maps were discriminatory,” Daniels continued. “We stand ready to participate meaningfully with our colleagues to create a new map that fully complies with the law.” Rep. Terri Sewell wrote on Twitter, “Wow!!! The Supreme Court just upheld Section 2 of Voting Rights Act of 1965 and protected the voices of Black and minority voters. This is a historic victory not only for Black voters in Alabama, but for Democracy itself.” In a press release, Sewell said, “This is a historic victory, not only for Black voters in Alabama, but for Democracy itself. With this decision, the Supreme Court is saying loudly and clearly that the voices of minority voters matter and that fair representation must be upheld. I know that John Lewis and the Foot Soldiers of the Voting Rights Movement are smiling as they look down on us. Today, their sacrifice was rewarded. Our work is not over. We must continue the fight for fair representation by passing the John R. Lewis Voting Rights Advancement Act to restore the full protections of the Voting Rights Act of 1965.” State Senator Merika Coleman (D-Birmingham) is the Chair of the Alabama Legislative Black Caucus. “From the beginning of this case, we have strongly denounced racial gerrymandering and will continue our efforts to ensure that districts are drawn equitably and fairly,” said Sen. Coleman. “I applaud Chief Justice (John) Roberts for preserving Section 2 of the Voting Rights Act. This is a major victory for Black voters in Alabama, as well as the entire nation.” State Representative Napoleon Bracy, Jr. (D-Prichard) is the Vice Chair of the Alabama Black Legislative Caucus. “In a resounding victory for fair representation, the Supreme Court’s unexpected decision stands as a powerful testament to the importance of upholding the Voting Rights Act,” Rep. Bracy said. “By prohibiting racial gerrymandering in Alabama, the Court reaffirms the principle that every citizen’s voice deserves to be heard, regardless of their race. This ruling sends a clear message that political power should not be diluted through discriminatory practices, ensuring that the spirit of democracy remains strong and inclusive in Alabama.” In 2021, the Alabama state legislature produced new congressional maps which closely paralleled the previous 2012 redistricting with just one Black majority district. In a narrow 5-4 decision, the majority of the Court sided with the plaintiffs and affirmed that Section 2 of the Voting Rights Act requires the Alabama legislature to draw a second district where minority voters can elect a candidate of their choice. The decision will also have an impact across the South, as today’s decision clears the way for additional minority districts to be drawn in other states with challenged maps, like Georgia and Louisiana. “It is hard to imagine many more fundamental ‘prerequisites’ to voting than determining where to cast your ballot or who you are eligible to vote for,” Chief Justice John Roberts wrote. The 34-page decision in Milligan penned by Roberts recommits to the Voting Rights Act’s promise as the foundation for justice for all, not just some. Roberts was joined by Justices Sonia Sotomayor, Elena Kagan, Kentaji Brown Jackson, and Brett Kavanaugh. Jeff Loperfido is the Interim Chief Counsel for Voting Rights at the Southern Coalition for Social Justice. “This is a great day for democracy and for the voting rights of Black and Brown communities throughout the South who continue to be the targets of discriminatory laws that seek to silence their voices and stifle their growing political power,” said Loperfido. “The Court’s forceful repudiation of Alabama’s extreme and disingenuous ‘race-blind’ mapping theory is a testament to the important role the Voting Rights Act plays in rooting out discriminatory electoral practices.” The Legal Defense Fund (LDF), American Civil Liberties Union, ACLU of Alabama, Hogan Lovells LLP, and Wiggins, Childs, Pantazis, Fisher & Goldfarb brought the case in November 2021 on behalf of Evan Milligan, Khadidah Stone, Letetia Jackson, Shalela Dowdy, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP. It was argued before the Court on Oct. 4, 2022. The case goes back to the three-judge panel of the Eleventh Circuit Court of Appeals in Atlanta that originally ruled against the State of Alabama. The Supreme Court had stayed its ruling last year at the request of Alabama Governor Kay Ivey, Alabama Attorney General Steve Marshall, and then-Secretary of State John Merrill. The three-judge panel will decide whether to order the Legislature to redraw the districts following the orders of the Court or order the state to adopt a zoning map drawn by the courts. Two alternative maps were presented to the Court by the plaintiffs. The easiest thing would be for the three judges to order the state to accept one of those maps. Whatever happens, Alabama’s Congressional maps will look substantially different than they are today by the end of the year. This will likely impact hundreds of thousands of Alabama voters. The major party primaries for the congressional districts will be on March 6. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
U.S. Supreme Court strikes down Alabama Congressional Districts
The U.S. Supreme Court, in a 5 to 4 ruling, has rejected Alabama’s Congressional District map in the case of Milligan versus Merrill. The Supreme Court ruled that the 2021 Congressional redistricting map drawn by the Alabama Legislature likely violates the Voting Rights Act by diluting the power of Black voters. Alabama is 27% Black, and they vote overwhelmingly Democratic, but Alabama has just one Black Democrat – Terri Sewell (D-AL07) in its congressional delegation. The six other districts are represented by White Republican men. A three-judge panel of Judges in the Eleventh Circuit Court of Appeals in Atlanta ruled in 2022 that the 2021 redistricting violated the Voting Rights Act. That order was, however, stayed by the Supreme Court until they could review the case themselves. The Court, in Thursday’s decision, ruled that the eleventh circuit was, in fact, correct. This sends the case back to them for review. Alabama Today spoke with former State Senator Jim McClendon, who chaired the Joint Committee on Redistricting, and State Representative Chris Pringle (R-Mobile). “That kind of surprised me,” McClendon said. “We went out of our way to follow every ruling and decision that was made when we made that map.” McClendon explained that while redrawing the districts will make it more likely that there will be two Black members of the Alabama congressional delegation, it does not make that certain and could even potentially jeopardize the one Black incumbent – Congresswoman Terri Sewell (D-AL07). “Terri Sewell is at risk,” McClendon said. “We gave her 55% (minority voters).” McClendon was doubtful that in the 2 to 5 district split, it would be possible to have that high of a minority participation. To get two majority-minority or at least two districts with a high minority influence will mean splitting Mobile County to put Prichard and the Black parts of Mobile into a district with the Black Belt and Montgomery. That second district will likely run from Tuscaloosa to Bessemer to Birmingham and could run as far north as Huntsville. “I am sure not sure who is going to draw them (the Legislature or the courts),” McClendon said of the new zoning maps. The three-judge panel had ordered the Legislature to redraw the maps and warned if the state didn’t, then the Court would. The state ignored the Court and instead pressed ahead with its appeal to the U.S. Supreme Court. The Supreme Court’s decision to stay the ruling meant that the 2022 election proceeded with that now-invalid congressional redistricting map. At least two of Alabama’s congressional incumbents will likely find themselves in the same district. If the three-judge panel allows the Legislature to do the Congressional redistricting, then there is likely to be a special session of the Alabama Legislature that will be needed sometime this fall. The plaintiffs presented two congressional redistricting maps to the Court. It is possible that the Court could simply order the state to adopt one of those two maps rather than preparing a fourth map. Whichever map ultimately is adopted, the 2024 congressional districts will not look much like the current districts. “There are a bunch of parasite lawyers” involved in redistricting litigation, McClendon said. “This will give them something to work on for two or three years.” Because Alabama lost the redistricting case, the state will have to pay for the legal fees of the plaintiffs’ lawyers. McClendon did not run for reelection in 2022, so he has been replaced as the Senate Chair on the redistricting committee by Sen. Steve Livingston (R-Scottsboro). Chief Justice John Roberts and Justice Brett Kavanaugh joined the Court’s three liberals in the majority. “As we explain below, we find Alabama’s new approach to §2 compelling neither in theory nor in practice. We accordingly decline to recast our §2 case law as Alabama requested,” Roberts wrote for the majority. Black Alabamians vote Democratic over 90% of the time, while Alabamians in recent elections vote Republican in excess of 80%. If those trends continue, the new redistricting will make two districts either lean Democrat or very competitive. The other five districts, however, will likely become much more White and likely even more conservative. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
