The Supreme Court surprised me.
You see, it’s become distressingly easy to predict how the nation’s high court will rule on issues.
The Dobbs decision overturning Roe v. Wade? Horrifying. Insulting. Deadly to women. But we knew that this bench was going there.
I’ve spent way too many nights waiting for the Supreme Court to decide whether to allow an execution in Atmore to proceed. Whatever the merits of the condemned person’s appeal, they almost always allow the machinery of death to roll forward.
And when the justices last year stepped in to stay a lower court’s order that Alabama had to draw a second congressional district with a significant Black population, the final ruling seemed inevitable in Allen v. Milligan (known then as Merrill v. Milligan).
After all, this is the John Roberts court, the one that struck down mandatory reviews of election laws in states with a history of discrimination, like Alabama, in 2013. (That case came out of Shelby County.)
It struck down certain federal contribution limits in 2014. (That case came out of Birmingham.)
And when Milligan reached the court in October, it seemed that most of the conservative justices — notably Samuel Alito — were looking for ways to weaken Section 2 of the Voting Rights Act, which prevents voting practices that discriminate based on race, color, or membership in a language group. It’s the last shred of the law that restored constitutional democracy in Alabama in the mid-1960s.
That is not how the court ruled last week.
Chief Justice John Roberts’ majority opinion upheld the lower court ruling, dismissing the state’s arguments that, in some cases, would have trashed Section 2 entirely.
Alabama attorneys even went as far as arguing that applying the Voting Rights Act to redistricting was unconstitutional under the 15th Amendment, which bans voting discrimination based on race. (Yeah, I don’t get that one either.)
Roberts’ opinion is technical, essentially arguing that previous rulings and a congressional revision of the Voting Rights Act in 1982 justified the lower court ruling. There’s nothing quite in the way of zippy one-liners. As he wrote, the state “misunderstands (Section) 2 and our decisions implementing it.”
The chief justice has cut the Voting Rights Act to pieces, and it’s impossible to say why he put his scissors away last week. Perhaps, as law professor Rick Hasen notes, he’s concerned about the legitimacy of the court.
Maybe the justices lost faith in Alabama officials. They gave the state Department of Corrections free rein to carry executions as they saw fit last year. The conduct of those executions was so stunningly incompetent that Alabama made the nation’s high court look like a bunch of gullible fools in a clown car.
But the upshot is clear. The state lost. And considering what the attorney general’s office was arguing, that was the best outcome.
So what does this mean for Alabama?
Alabama has a single majority-minority congressional district (the 7th, encompassing Birmingham and most of the western Black Belt), which is about 63% Black. It’s been that way since 1992. It will likely get redrawn after this ruling, ending the practice of siloing Black voters into a single district and diminishing their voting power.
The Republican-controlled legislature will have to pursue a remedy that will satisfy the court. The most efficient way to do that would be a special session sometime this year to set clear boundaries before next year’s primaries.
The lower court in 2022 wrote that the remedy appeared to be a new district where “Black voters either comprise a voting-age majority or something quite close to it.” Assuming they stick with that approach, lawmakers have some flexibility in deciding what “something quite close to it” means. You can’t exclude the possibility of further litigation from one side or the other.
The plaintiffs in the cases proposed different remedies at the district level. Moon Duchin, an expert who drew maps for the Milligan plaintiffs, showed that the state could draw two majority-minority districts by retaining the core of the current 7th Congressional District, while consolidating its southern counties with Montgomery and the eastern Black Belt.
Another plan, proposed by Black legislators during reapportionment in 2021, would split the 7th into two new districts: a 6th Congressional District where registered voters would be about 42% Black, and a 7th Congressional District where registered voters would be 49.9% Black. As drawn, the districts would look like the 7th as it stands, but with Jefferson, Bibb, Hale, and Perry Counties drawn into the new 6th Congressional District.
That approach, or something quite close to it, might be more appealing to Republicans. It would set up that rare political event in Alabama: competitive general elections.
Under the plan, a 6th Congressional District could pit U.S. Rep. Gary Palmer, R-Hoover, and U.S. Rep. Terri Sewell, D-Birmingham, against each other in 2024. Plenty might preempt that, of course, like one or both incumbents losing a primary (unlikely, but possible). But a Palmer-Sewell showdown seems the most likely outcome.
The new 7th Congressional District would be more favorable to Democrats, but there would be enough Republican voters looped in to potentially make things interesting.
And boy, could it get interesting.
The U.S. House of Representatives is divided 222-212, with Republicans narrowly in control.
With both parties having a viable shot at taking the gavel in the lower chamber in 2025, you could expect each of these Alabama districts to pull national attention and national money. You’re almost certain to see national figures from both parties help with campaigns.
Democrats in the past expressed confidence they could win districts where the population was below 50% Black. Considering Jefferson County’s blue shading, it’s possible. But in a presidential election with a presumably large Republican turnout, expect a tight battle.
What’s next?
Still, these are good problems to have.
The plaintiffs in the lawsuit argued that packing Black voters into a single congressional district makes meaningful participation in the political process impossible. And they were correct.
Black voters outside the 7th Congressional District have little or no voice in who represents them in Washington. Shoving everyone into one district makes it challenging to form alliances with like-minded white voters in electing leaders. More competitive congressional districts — where candidates have to speak to both Democrats and Republicans — could mean more responsive politics.
Our state could have a taste of democracy next year. And all thanks to the U.S. Supreme Court.
That’s the biggest surprise of all.
This article was published by Alabama Reflector.
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