Racial gerrymandering in Alabama: What are politicians trying to do, exactly?
This summer, the U.S. Supreme Court sent a clear message to Alabama that its Congressional map illegally discriminated against Black Americans. Yet in a chilling development, Alabama’s politicians have chosen to ignore that message and proceed with another map that they seemingly know violates the Voting Rights Act. To prevent this kind of racial gerrymandering in the future, we must understand how we got here, and how legislation like the John Lewis Voting Rights Advancement Act and Fair Representation Act can help.
Racial gerrymandering after the 2020 Census
After the 2020 Census, politicians across America re-drew their states’ single-member congressional districts, cutting up communities based on who they preferred to have an effective vote over the next ten years. Alabama’s politicians approved a map that included a single Black opportunity district out of seven total (roughly 14% of Alabama’s representation in Congress), despite the census showing that about 27% of Alabama’s population is Black. Litigation ensued, in which plaintiffs argued that Alabama’s congressional map constituted an illegal racial gerrymander under Section 2 of the Voting Rights Act. A federal court agreed, concluding that any legal congressional map for Alabama “will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.” This decision was appealed to the U.S. Supreme Court.
The Purcell Principle delays action
Despite the Supreme Court getting the case two months before absentee voting in the upcoming 2022 primary was set to begin, and despite litigants suing Alabama as soon as they could and rushing the litigation, the Court’s majority cited what’s now called the Purcell Principle to halt any changes to the illegal map. The Purcell Principle is a Supreme Court-created rule stemming from the case Purcell v. Gonzalez, which states that federal courts should not require changes to state election laws close to an upcoming election.
While the idea of the principle may sound reasonable, it has been abused to effectively eliminate constitutional voting rights during election years and has given states free reign to use illegal maps in any upcoming election. As such, Alabama’s illegal map was used in the 2022 midterm elections, where the state predictably elected seven White Republicans and a single Black Democrat to Congress.
Allen v. Milligan : The Supreme Court calls for redress
With the election passed, the Supreme Court was finally willing to examine whether the map just used in it constituted an illegal racial gerrymander. In Allen v. Milligan, the Supreme Court affirmed that the map was an illegal racial gerrymander in violation of the Voting Rights Act. Alabama was now legally required to draw a new congressional map with two districts that could reliably reflect the preferences of the state’s Black population.
Alabama flouts the court’s order
On July 21, Alabama adopted a new congressional map, “Livingston Congressional Plan 3,” which only includes one Black opportunity district (the 7th Congressional District, where 50.65% of the voting-age population is Black). A second district, the 2nd Congressional District, only has a Black voting-age population of 39.93%. Reliable computer simulations show the newly proposed 2nd District is still plurality White and is also Republican-leaning. If Black voters in the 2nd District had a candidate of choice, it is unlikely that candidate would prevail in a general election. Janai Nelson, President and Director-Counsel of NAACP LDF, called it “an outright defiance of the Supreme Court’s order.”
In signing the map into law, Alabama Governor Kay Ivey stated, “The Legislature knows our state, our people and our districts better than the federal courts,” implying that Alabama politicians did intend to defy the U.S. Supreme Court. One cannot help but be reminded of Southern politicians falling back on states’ rights in the early years of the Civil Rights Movement – the exact reason the Voting Rights Act was needed. In Dr. Martin Luther King Jr.’s historic I Have A Dream speech, he mentioned such defiance in Alabama:
I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” – one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.
A murky path ahead
Regardless of their motivations, Alabama’s politicians surely knew the map would again be challenged in court. In fact, the same federal court that invalidated the original map will review this latest proposal on August 14. Whatever that court decides will again be challenged, and will perhaps again come before the U.S. Supreme Court.
There, it is possible that Alabama will win over Justice Kavanaugh – the only justice who both voted to allow Alabama to temporarily use the previous map in 2022 based on the Purcell Principle, and then later found that very map an illegal gerrymander. (Kavanaugh notably wrote a concurrence implying that the Voting Rights Act itself might have run its course in our political system.) Alabama will likely delay litigation as long as possible, with the hope of invoking the Purcell Principle again, allowing for a second consecutive use of a racially discriminatory Congressional map.
This abuse of legal processes to undermine constitutional rights is not sustainable in a healthy democracy. Yet fundamental flaws in our electoral system – the ability for politicians to choose their voters via gerrymandering, the reliance on single-member districts, and the judicial erosion of the Voting Rights Act – reward such behavior. These fundamental flaws require fundamental solutions: Legislation like the John Lewis Voting Rights Advancement Act and the Fair Representation Act, both due for re-introduction later this year, would prevent states from so easily denying a fair voice to Black communities or other marginalized groups.
