The Alabama attorney general’s office and the stakes in 2024

The Alabama Attorney General’s Office is making a notable argument in a Louisiana redistricting case.

And yes, the key-rattling jingle of an attack on minority rights has once again led the state’s top law enforcement officer to another state and away from actual Alabama problems.

But still, we need to pay attention.

Like Alabama, Louisiana is under orders to redraw its congressional maps. The Alabama attorney general’s office filed an amicus brief in the case earlier this month, joined by officials in 12 other Republican-leaning states. The filing advanced a new theory of the Voting Rights Act.

Namely, that nonpoliticians can’t use it.

To be specific, the argument is that only the U.S. attorney general can raise claims under Section 2 of the law, which bans racially discriminatory voting and election practices.

“Section 2 contains no express private right of action,” the filing from Solicitor General Edmund LaCour said. “And the VRA’s structure confirms that the provision creates no implied private right of action either. Rather, Section 2’s role is important but limited: to provide the federal government authority to enforce the guarantees of the Fourteenth and Fifteenth Amendments, something private parties could already do before 1965.”

Now, a state attorney should know that a big reason we have the Voting Rights Act is the federal courts’ complete cowardice when Alabama flaunted the guarantees of the Fourteenth and Fifteenth Amendments.

But this isn’t a good faith argument about a cornerstone of American democracy. The Alabama attorney general’s office wants state lawmakers to choose their voters, instead of the other way around.

Their attempt to do this during Alabama’s recent redistricting fight failed. But the state has a new ally.

LaCour took his argument from U.S. Circuit Judge David Stras. In an Arkansas redistricting case — where Stras repeatedly and dismissively referred to Black citizens trying to secure a place in the political process as “advocacy groups” — the judge decided the Voting Rights Act, inspired by the public protests of private citizens in Selma, can’t be used by Americans who are not the U.S. attorney general.

“Any mention of private plaintiffs or private remedies, however, is missing,” he wrote. “Under a test that requires Congress to ‘create’ causes of action, silence is not golden for the plaintiffs.”

Stras simply ignored existing precedent (as a dissent noted). Election experts said that if carried by higher courts, the judge’s opinion would make it next-to-impossible to enforce minority voting rights.

It’s not surprising that this decision comes from Stras, who emerged from the authoritarian incubators of the Federalist Society and Justice Clarence Thomas’ office. He almost certainly took his cue from fellow Federalist Society lackey Neil Gorsuch, who suggested in a 2021 U.S. Supreme Court case that maybe people shouldn’t be able to bring VRA lawsuits.

How did two reactionary men get to a place where they can deny Americans the right to choose their leaders?

Donald Trump.

The stakes

Trump, as you may know, is running for president.

He’s already pledged to be a dictator on day one. (Funny thing about dictatorships: they’re rarely day trips.) It’s to be expected from a man who encouraged a violent attack on the U.S. Capitol after he lost the 2020 presidential election.

But we’re already dealing with the damage from his four years in the White House. Just look at his picks for the federal judiciary.

There’s the Texas judge appointed by Trump who yanked the abortion pill off the market, based on questionable data presented by an anti-abortion group.

There are the two Trump-appointed judges in Florida who declared in 2020 that conversion therapy, a nonscientific, nonmedical process that can cause grave harm to LGBTQ+ youth, is actually a form of protected speech.

And then there’s Amy Coney Barrett, named to the U.S. Supreme Court by Trump, who once ruled that a Black worker called a racial epithet by his supervisor hadn’t proven that the use of the slur created a hostile work environment.

On the nation’s high bench, Barrett teamed up with Justice Samuel Alito and Chief Justice John Roberts to strike down federal abortion rights in Dobbs v. Jackson Women’s Health Organization in 2022. Trump’s other two nominees — Gorsuch and Brett Kavanaugh — joined the decision.

Alabama now subjects women to an effective ban on the service. Alabama Attorney General Steve Marshall wants to go further and prosecute those who help women travel out of the state to get abortions.

It’s true that Alabama officials couldn’t get Kavanaugh to impose the congressional maps they wanted.

But it’s telling that the state’s lawyers thought they could push one of Trump’s appointees to give them their preferred outcome.

And in a way, I’m grateful they’ve embraced Stras’ radical argument. They’re showing what’s at stake in 2024.

Give Trump a second term, and he’ll put more of these Federalist Society Muppets on the federal bench.

They’ll give Trump — and Alabama — more chances to attack Americans on the margins. They’ll invoke Alito’s dictum in Dobbs that any constitutional rights recognized by the courts after 1868 are “not deeply rooted in this nation’s history” and relitigate issues the vast majority of us consider settled.

That means more chances to criminalize immigration. More likelihood of depriving LGBTQ people of what legal standing they have. More attacks on religious minorities. More obstacles to the ballot box.

To do all this, they’ll quash investigations into Trump’s corruption and his role in fomenting an insurrection.

That’s really the choice next year: the rule of law, or the rule of Trump.

The latter inspires petty men to dream of conquest and speak in violence. It aims for a world where justice, democracy and free speech belong to a very small clique of people, whose highest values are stasis, conformity and deference.

Where government’s sole purpose is helping the powerful pursue their grievances against the weak.

I doubt Alabama’s attorneys meant to do this when they filed that brief in Louisiana. But they seem to be rooting for this world to come.

And if Trump wins next year, it will.

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 Robert F. Kennedy Center for Human Rights. He lives in Auburn with his wife, Julie, and their three children.

Alabama Reflector is part of States Newsroom, an independent nonprofit website covering politics and policy in state capitals around the nation.

This article originally appeared on Montgomery Advertiser: The Alabama attorney general’s office and the stakes in 2024