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.
Wes Allen says legal portion of redistricting process is not completed
On Thursday, the three-judge panel announced Alabama’s new congressional district map they selected for the state. Alabama Secretary of State Wes Allen responded to the three-judge panel’s selection of map number three. Map three partitions the Wiregrass, Mobile County, and even Mobile City. Map one, also partitioning Houston County, had been the most popular among the plaintiffs, while two was the least popular choice. The State of Alabama opposed all three of the maps. Allen and Attorney General Steve Marshall have vowed to continue to appeal. “The Office of the Secretary of State will facilitate the 2024 election cycle in accordance with the map the federal court has forced upon Alabama and ordered us to use,” said Allen. “It is important for all Alabamians to know that the legal portion of this process has not yet been completed. A full hearing on the redistricting issue will take place in the future, and I trust Attorney General Marshall to represent Alabama through that process. In the meantime, I will keep our state’s elections safe, secure, and transparent because that is what I was elected to do.” The three-judge panel ruled that the map passed in the July 2023 special session did not allow Alabama’s Black minority to select their own representative, thus violating the Voting Rights Act of 1965. The three-judge panel then appointed Richard Allen as a special master to draw new maps. The three maps all radically redrew the First and Second Congressional Districts. Republican incumbent Congressmen Jerry Carl and Barry Moore both now live in Congressional District One. Carl has announced that he will run for reelection. Moore, on the other hand, has said that he is going to wait before deciding on his future plans. The three-judge panel ordered that the maps be redrawn so that two of the seven congressional districts are majority-minority districts “or something close to it.” The Legislature refused to draw a map that complied with the court’s order, resulting in the court rejecting the state legislature’s map. The state has appealed to the U.S. Supreme Court; however, both the three-judge panel and the Supreme Court have refused to stay the court-ordered redistricting while the state appeals the ruling of the lower court, citing their belief that the state is unlikely to prevail in its appeal. Thursday’s announcement brings clarity for voters and candidates. Democratic qualifying began last Friday, while Republican qualifying does not begin until October 16. The major party primary will be on March 5. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Three judge panel will rule on Alabama’s congressional districts soon
On Tuesday, the three-judge panel hearing the Alabama Congressional redistricting case listened to arguments for and against the three maps prepared by the special master, Richard Allen. The court held an 80-minute hearing at the federal courthouse in Birmingham on Tuesday. The three-judge panel includes U.S. Circuit Judge Stanley Marcus, federal District Judge Anna Manasco, and federal District Judge Terry Moorer. Plaintiffs tended to prefer map 1, which divides Houston County and includes the City of Dothan into Congressional District 2. The Alabama Attorney General’s office has objected to this entire process and has vowed to defend the July 2023 redistricting map prepared by the state Legislature. The court previously rejected a motion by Alabama Attorney General Steve Marshall to stay the proceeding while the State appeals. The U.S. Supreme Court has also rejected Marshall’s request for a stay. Incumbents Republican Congressmen Jerry Carl and Barry Moore both now live in the First Congressional District. All three maps divide Mobile County. In June, the three-judge panel ordered the Legislature to pass a new congressional redistricting map to include two majority-minority districts “or something close to it.” The Legislature refused and instead defied the court’s authority by passing their own map that kept White majorities in six of Alabama’s seven congressional districts. In August, the three-judge panel rejected the Legislature’s plan as having violated the Voting Rights Act of 1965. The court rejected the state’s map and appointed Allen to draw new maps. The federal courts have already ruled that the state’s 2021 congressional rezoning likely violated section two of the Voting Rights Act of 1965. Secretary of State Wes Allen has told the courts that the state needs to know which map is chosen due to the quickly approaching 2024 election cycle. Democratic candidate qualifying has already opened, and Republican candidate qualifying opens on October 16. The major party primaries will both be held on March 5. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Three judge panel to meet today to consider Alabama congressional maps
On Tuesday, a federal three-judge panel will meet to consider three Alabama congressional redistricting maps drawn by the court-appointed special master Richard Allen. The court appointed Allen after rejecting a map drawn by the Alabama Legislature in a July special session, which the judge said violates Section 2 of the Voting Rights Act of 1965. The court rejected a motion by Alabama Attorney General Steve Marshall to stay the proceeding while the State appeals. The U.S. Supreme Court has also rejected Marshall’s request for a stay. The three maps dramatically redraw Alabama’s Congressional Districts 1 and 2, putting Republican incumbents Jerry Carl and Barry Moore in the same districts. In the three plans, Congressional District 2 could have between 48.7% Black voters and 50.1%, depending on which plan the court approves. “We have an opportunity to elect a 2nd Democrat to the U.S. House, win state races, and re-elect President [Joe] Biden so that he may complete his historic agenda,” Alabama Democratic Party Chairman Randy Kelley said. “Alabama has benefited greatly from President Biden’s policies, including the Bipartisan Infrastructure Law, with over $3.2 billion allocated for roads, bridges, high-speed internet, and other major projects. We will do our part by winning seats for local, state, and national offices.” If one of these three maps is adopted, given the fact that over 80% of White Alabamians vote Republican and over 90% of Black Alabamians vote Democratic, this means that Democrats have a likely chance of winning Congressional District 2 in the 2024 election. The three maps comply with the three-judge panel’s order that the congressional redistricting map includes two majority-minority districts “or something close to it.” In 2021, the Alabama Legislature passed congressional redistricting that closely followed the existing seven congressional districts, which included one majority-minority district – the Seventh Congressional District. In 2022, the three-judge panel declared that the 2021 redistricting likely violated the Voting Rights Act of 1965 and ordered the Legislature to draw a new map. The state appealed to the Supreme Court, and the court stayed the order of the three-judge panel. In June, the Supreme Court ruled that the three-judge panel’s order had likely been right. In a 5 to 4 Supreme Court ruling, the Court remanded the case back to the three-judge panel who ordered the state legislature to prepare a new congressional redistricting map with two majority-minority districts “or something close to that.” In July, the Alabama Legislature met in a special session to consider redistricting. Instead of following the court’s orders, the Legislature merely increased the Black voting age population in CD2 from 30% to 39.9%. The three-judge panel accused the Legislature of defying the court and threw out the 2023 redistricting map. They then appointed a special master and ordered him to prepare new congressional redistricts for the state. He created three maps, all dividing Mobile County between Congressional District 1 and Congressional District 2 – something the Legislature claimed they could not do. Marshall has vowed to continue to appeal. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
U.S. Supreme Court denies state request to block court-ordered redistricting
The Hill reported that the U.S. Supreme Court on Tuesday rejected the State of Alabama’s motion to hold the court-ordered redistricting process currently before the three-judge panel. This means that one of the three maps prepared by court-appointed special master, Richard Allen, and his team will be the new congressional maps used moving forward. The special master filed the maps with the court on Monday. Congressmen Barry Moore and Jerry Carl are now both in Carl’s First Congressional District, while Carl’s home county of Mobile will now be split into majority White and majority Black sections going into separate congressional districts – much like Jefferson County has been for decades. The new Second Congressional District, the new “opportunity district,” will include the eastern half of the Black Belt, the northern portion of the Wiregrass, the City of Montgomery, a vast swath of rural Alabama stretching from the Georgia line to the Mississippi line south to include most of the City of Mobile. No incumbent presently lives in the new Second District, so it is likely to be an open seat. The exact boundary lines will be selected by the three-judge panel in a hearing tentatively set for October 3 -just days ahead of major party qualifying for the 2024 elections. The special master wrote in his court filing on Monday: “Pursuant to the Court’s September 5, 2023, preliminary injunction order and instructions, the Special Master is filing three proposed remedial plans for Alabama’s U.S. congressional map, attached to this Report and Recommendation as Exhibits 1-3. Per the Court’s instructions, each proposed plan remedies the likely violation of Section Two of the Voting Rights Act identified in the Court’s preliminary injunction order. Each proposed plan also complies with the U.S. Constitution and the Voting Rights Act; adheres to the one-person, one-vote requirement; and respects traditional redistricting principles, including compactness, contiguity, respect for political subdivisions, and maintenance of communities of interest. Per the Court’s instructions, this Report and Recommendation details the choices made to arrive at each proposed plan, the differences between and among the proposed plans, and why each plan remedies the likely vote dilution found by the Court.” The three-judge panel had ruled that the map drawn by the State Legislature in a July special session both violated the Voting Rights Act of 1965 and defied the court’s order to draw a new map with two majority-minority districts “or something close to it.” The three maps prepared by the special master vary between 48.7% Black voters and 51.1% Black voters. In addition to the directions given by the court, the special master made an effort to follow much the same lines as the Legislature’s July map. Most of the changes are to congressional districts one and two. The newly drawn Second Congressional District will be an open seat and will likely be won by the Democratic Party nominee if general election voters behave much as they have in the previous elections. The Alabama Attorney General’s Office is expected to continue its appeal, but Tuesday’s refusal to stay the hold on the redistricting is an indicator that the court, much like the three-judge panel earlier, is skeptical of the state’s chance to prevail. The court has already ruled against the state in June. Even if the court were ultimately to rule in Alabama’s favor, that ruling would likely arrive too late to impact the 2024 election. Candidate qualifying for the March 5 Republican and Democratic Party primaries will open next month. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Terri Sewell applauds new special master drawn congressional maps
On Monday, the proposed remedial Alabama congressional redistricting maps were released by Special Master Richard Allen. The three maps were filed with the three-judge panel in the ongoing voting rights case – Allen versus Milligan. Congresswoman Terri Sewell – Alabama’s only Democratic member of the congressional delegation – applauded the new maps. “Today, despite the relentless efforts by state officials to delay, obstruct, and defy, we are one step closer to having fair congressional maps in the State of Alabama,” Rep. Sewell said in a statement. “I applaud the special master for submitting three strong proposals which prove what we have long known to be true; the creation of two districts where Black voters can elect a candidate of their choice was possible from the very beginning.” “I look forward to the adoption of one of these proposals and I remain ready and eager to continue representing the great people of Alabama’s 7th Congressional District,” Sewell concluded. All three maps create two majority-minority districts. All three are variations on the same general theme: · The maps divide Mobile County into a majority White section that remains in Alabama’s First Congressional District and a majority Black section that is moved into Alabama’s Second Congressional District. · The maps divide the Wire Grass community between the First and Second Congressional Districts. · The maps stretch a redrawn First Congressional District from the Mississippi line in Mobile County to Baldwin County across Mobile Bay and then along the Florida line all the way to the Georgia line. · The Second congressional district would stretch from downtown Mobile to Montgomery and all the way to the Georgia line. · The Second and Seventh Congressional Districts would both be majority minority. · Congressman Barry Moore (R-AL02) and Congressman Jerry Carl (R-AL01) would both live in the same district. If both seek a third term, there is a strong likelihood that they could face each other in the 2024 Republican primary on March 5. “The three remedial plans submitted to the United States District Court for the Northern District of Alabama by the Special Master represent a chance to restore the power of the vote for Black Alabamians, and all Alabamians,” said Alabama House Minority Leader Anthony Daniels (D-Huntsville. “All three maps place the majority of the City of Mobile in a proposed Congressional District 2. This is a clear rejection of the State’s attempts at subversion, and a rebuke of the manner in which the legislative majority twisted our shared history into a shield for discrimination.” Rep. Jerry Carl was less than enthusiastic by the news. “Today, a federal court released three proposed maps that will split south Alabama into two different congressional districts. Once again we have seen activist judges overstep their roles,” Carl said on Twitter. The three-judge panel will consider which of three maps to adopt on October 3. The state of Alabama has previously objected to dividing Mobile County and the Wiregrass region, arguing that the two communities of interest should not be divided. Both Jefferson and Tuscaloosa Counties were divided in the 2012 maps, the 2021 maps, and the July map prepared by the Legislature in a special session. The three special master maps also divided Jefferson and Tuscaloosa Counties into different districts, and there has been no objection by the state or the court to dividing those communities of interest along racial lines. The Alabama Attorney General’s office has asked the U.S. Supreme Court to put a stay on the three-judge panel redistricting so that the state can once again present its case to the Supreme Court. The Court has agreed to hear the state’s emergency appeal. Milligan and the other plaintiffs have asked the court to reject the state of Alabama’s request for a stay on the new districts. They argue that both the 2021 map and the July map violate the Voting Rights Act of 1965. The three-judge panel rejected Alabama’s request to hold up the redistricting. Democrats and their civil rights group allies hope that they can use the courts as a tool to flip as many as 15 congressional districts from Republican to Democratic, thus likely regaining control of the U.S. House of Representatives no matter what happens with the Senate or the presidential election next year. Qualifying for Congress with the two major parties begins in mid-October and ends on November 10, with both major party primaries being held on March 5. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Mid-Alabama Republican Club discusses congressional redistricting issue
On Saturday, attorney Bert Jordan briefed the influential Mid-Alabama Republican Club (MARC) on the pending federal litigation over Alabama’s disputed congressional redistricting. On Monday morning, the State of Alabama will defend a congressional redistricting plan passed by the Alabama Legislature in July’s second 2023 special session. Plaintiffs have challenged that plan as violating Section 2 of the Voting Rights Act of 1965. Hoover City Councilman John Lyda is the President of MARC. “Burt Jordan has practiced law here for 43 years,” Lyda said. “His law firm, Wallace, Jordan, Ratliff, & Brandt, represents the City of Hoover, and I am very grateful for that.” Lyda said Jordan represented Perry Hooper Sr. in his disputed Chief Justice of the Alabama Supreme Court race in 1992. He has been counsel for the Alabama Republican party. He also served as County chairman from 1995 to 1999. Jordan criticized the media coverage, particularly that of al.com in this case, as inaccurate. “I know al.com could do a better job,” he stated. “In early 2022, a U.S. District Court consisting of three judges issued an injunction because the 2021 Congressional redistricting likely violated section 2 of the Voting Rights Act,” Jordan said. “Section 5 was struck down in 2012 in a decision by Chief Justice John Roberts. John Roberts has received a lot of criticism for that decision.” Jordan explained that in 1982, the City of Mobile’s city council districts were upheld by the Supreme Court. The city had three council districts that were voted on city-wide, but no Black representative had been elected to the council, even though the city was 33% Black. The Supreme Court found that the Mobile redistricting did not violate Section 2 because there was no intent to prevent a Black person from being elected. It just hadn’t happened. Following the Mobile decision, Section 2 of the VRA was rewritten by Congress from showing intent to a results outcome. Jordan explained 27% of Alabamians are Black. The plaintiffs argue that based on the results test, then two out of the seven congressional districts should be majority Black. “Nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population,” Jordan stated. Jordan said that a key Supreme Court decision here was Thornburg v Gingles. “The Gingles factors: First, the minority group must be sufficiently large and geographically compact to constitute a majority in a reasonably configured district. Second, the minority group must show that it is politically cohesive. Third, the minority must demonstrate that the White majority votes sufficiently as a bloc to enable it……..to defeat the minority’s preferred candidate. Finally, a plaintiff who demonstrates the three preconditions must also show, under the “totality for the circumstances,” that the political process is not “equally open” to minority voters.” Jordan said that the Court ruled that the 2021 Alabama congressional redistricting was “likely a violation of section 2 of the voting rights act. That is why we are where we are today.” Jordan explained that there are three separate lawsuits challenging the 2021 congressional redistricting that have all been wrapped together into one suit. Those plaintiffs are Milligan from Montgomery, Castor from Mobile, and state Senator Bobby Singleton from Hale County. “They say that the Legislature’s remedial plan does not comply with Section 2 of the Voting Rights Act,” Jordan said. “It comes down to the racial composition of (Congressional) District 2. The complaint of the plaintiffs is that (the remedial congressional redistricting map passed by the Legislature in July) is not going to remedy the problem.” The Legislature increased the number of Black voters in CD2 to almost 40%. Jordan said that Milligan and the other plaintiffs will argue that “the Legislature did not produce two majority Black Districts”; thus, that violates the results test of Section 2 of the VRA. “The way the state is defending this is important,” Jordan said. “The state is defending this on the grounds that it united the Black Belt and is preserving communities of interest while minimizing the number of county splits. The counterpoint is this, as seen from Terri Sewell, is that Alabama has defied the Supreme Court.” “The Supreme Court has ruled that the 2021 redistricting likely violated Section 2,” Jordan said. “There has never been a final ruling. The state is arguing that there has never been a final judgment, only a preliminary ruling, so the burden of proof is still on Milligan, Castor, and Singleton.” “We don’t know how that will play out exactly,” in the hearing on Monday, Jordan said. “There will be a lot of legal discussion between the judges and the attorneys.” Jordan said that the VRA had been misused at times in the past for gerrymandering. “One of the ways that it was misused was in drawing bizarrely shaped districts such as North Carolina District 12 (in 1990),” Jordan said. That redistricting snaked through multiple counties in North Carolina, connecting communities of color into a majority Black district. One consequence is that it made it easier for Republicans to win the neighboring districts. The Supreme Court rejected the gerrymandered District 12, Jordan explained. Jordan said that that decision was then used as a precedent in a 1990s case that he and Ferris Stephens brought challenging what was then Alabama state board of education district 4, where Jefferson County was in a school district with just the Black neighborhood of Tuscaloosa connected by a narrow lasso. The Court overturned the school board redistricting because it violated the North Carolina District 12 decision. Jordan said that Singleton has presented a map to the Court where Jefferson County is kept as a whole but is connected with Bibb to Hale and Perry Counties in the Blackbelt. Jordan said that this is dilution and thus would not pass legal scrutiny. Jordan said that the Court has declined to eliminate partisan gerrymandering. “The Supreme Court ruled in 2019 that it couldn’t resolve partisan gerrymandering because it can’t make the decision on what is too much and what is fair,” Jordan said. “There is a lot of elite thinking that partisanship is distasteful. It may be, but it may be the best thing that
