That redistricting argument sounds familiar

  Three federal judges order the Alabama Legislature to draw fair districts for Black voters. 

  Lawmakers drag their feet. They submit a plan. Judges reject it for limiting the ability of Black Alabamians to choose their leaders. 

  September 2023? 

  Nope. September 1965. 

  That redistricting fight 58 years ago isn’t a one-for-one match to what we see today. It involved state House and Senate districts. And unlike today, the 1965 Alabama Legislature partially obeyed the federal court’s order: the judges approved the Senate map but redrew what they deemed a discriminatory House map. 

  It’s not a perfect reflection. But there’s a lot that’s familiar.

  Today it’s the state arguing that “communities of interest” (most of which happen to be majority-white) are more important than proper representation of Alabamians. 

  In 1965, Lt. Gov. James Allen said legislators aimed to maintain “customs, traditions, business and political alignments” and dismissed the federal courts’ concerns for Black Americans as “computer-like.” 

  Today it’s Sen. Steve Livingston (R-Scottsboro), a north Alabama legislator, sponsoring a plan to stick Black voters in a majority-white congressional district, diluting their votes.

  In 1965, it was Sen. Roscoe Roberts (D-Huntsville), a north Alabama legislator, sponsoring a plan to stick Black voters in majority-white state Senate districts, diluting their votes. (Roberts renounced the proposal when white senators from the Black Belt tried to push it even further.)

  Today it’s Gov. Kay Ivey denouncing “the federal courts” and “activist groups” for entertaining the thought of Black Alabamians having a voice in their governance. 

  In 1965 it was Gov. George Wallace calling the federal judiciary “revolutionary” and denouncing “left-wing liberals” wanting “as many illiterates as they can get to vote, in order to keep them in power.” 

  The governor’s racist comment referenced the Voting Rights Act, passed just a month prior to the session. But it reflected a far older attitude among Alabama’s ruling class, explicit through Jim Crow and implicit ever since: If you’re rich and white (and preferably male), you deserve to choose your leaders.

  If you’re Black or poor, you can’t be trusted with the vote. You must submit to the people who do all they can to make voting in Alabama an ordeal.

  That’s not democracy. That’s oligarchy.

  But that’s what the Alabama attorney general’s office is defending — even if officials are using less direct language — as they try to get a noncompliant congressional map past federal judges. 

‘Prevents them from being kept down’

  One strategy aims at U.S. Supreme Court Justice Brett Kavanaugh. In June, Kavanaugh voted to uphold a three-judge panel’s 2022 ruling that Alabama’s congressional map violated the Voting Rights Act. That ruling ordered the state to create a second congressional district that was either majority-Black or “something quite close to it.” 

  The state didn’t. Because of a ruling that came a few weeks after that.

  In that case, Kavanaugh joined a conservative majority that voted to strike down affirmative action in college admissions. In a concurring opinion, the justice wrote that he did not believe “race-based affirmative action in higher education may extend indefinitely into the future.”

  The Alabama attorney general’s office wants Kavanaugh to apply that thinking to the redistricting case. In an August filing, state lawyers cited the Harvard ruling 11 times, saying maps proposed by the plaintiffs to address the Voting Rights Act violations constituted affirmative action.

  “All that’s left to justify Plaintiffs’ race-based affirmative action in redistricting are arguments about ‘past societal discrimination,’ but perpetuating present-day race-based redistricting to redress past race-based discrimination violates ‘both the letter and spirit of a constitutional provision whose central command is equality,’” the state wrote. 

  The state, in short, argues that a law intended to stop past voting discrimination is unconstitutional if it actually recognizes past voting discrimination.

  In a 217-page opinion last week, the three judges handling the case dismissed the argument. The panel wrote that the justices in the Harvard case objected to ensuring particular outcomes. The Voting Rights Act, properly applied, is about opportunity. 

  “The Voting Rights Act does not provide a leg up for Black voters,” the judges wrote. “It merely prevents them from being kept down with regard to what is arguably the most ‘fundamental political right,’ in that it is ‘preservative of all rights’ — the right to vote.”

  I don’t trust this Supreme Court enough to say that this argument will prevail. But it’s correct. 

What the Voting Rights Act does

  The Voting Rights Act ensures that Americans can meaningfully participate in democracy. It does not guarantee outcomes.

  Alabama is a good example. Between the passage of the Voting Rights Act in August 1965 and the May 1966 Alabama Democratic primary, the number of Black voters in the state more than doubled, from about 112,000 to over 257,000. 

  But for all that, Black voters made up just 20% of the total number of registered voters in Alabama. At the state level, the establishment prevailed. Wallace got his wife Lurleen elected as a proxy governor.

  Yet the impact of Black voting was real. Black voters shaped many local races. And they forced politicians, even Wallace, to rearrange their vocabulary when it came to Black Alabamians.

  The fundamentals of Alabama politics in 2023 won’t change if the state gets a second majority-Black district, or something quite close to it. 

  Alabama will still vote for Republican presidential candidates. It will still elect Republicans to statewide office. 

  But Black voters in the state will have another voice in Congress. They’ll be better represented. They’ll be better heard.

  And this is still too much for our state’s leaders. The door to power opens a crack and they act like someone took a wrecking ball to the halls of government. Fair representation violates 200-year-old tradition in the state of Alabama government exclusively serving the powerful. 

  So they want to turn the clock back to 1965.

  Only they want a 1965 without the Voting Rights Act; without a skeptical federal judiciary and without any constraints on the legislature muffling the voices of Alabamians.

  About the author: Brian Lyman is the editor of Alabama Reflector. He has covered Alabama politics since 2006 and worked at the Montgomery Advertiser, the Press-Register, and The Anniston Star. His work has won awards from the Associated Press Managing Editors, the Alabama Press Association, and the Robert F. Kennedy Center for Human Rights.

  This article was published by Alabama Reflector.