Alabama says creating two Black congressional districts would be unconstitutional

Attorneys for the state of Alabama argued in a Friday filing that drawing two majority-Black congressional districts to address court findings that the state’s congressional map violates the Voting Rights Act would be unconstitutional.

In a 65-page brief, the Alabama Attorney General’s Office cited the U.S. Supreme Court’s recent ruling striking down affirmative action programs at colleges and universities to argue that drawing two such districts would require drawing them on racial lines.

“Plaintiffs’ remedies sort voters on the basis of race to hit a predetermined racial target,” the brief said. “To hit the target, Plaintiffs would break up communities of interest and expel people from their districts, all because of race.”

The three judges hearing the case ruled in January 2022 that Alabama’s 2021 congressional map violated Section 2 of the Voting Rights Act by packing Black voters into a single congressional district, hurting their ability to elect their preferred leaders.

Citing the high degree of racial polarization in Alabama voting – where whites, who make up 64% of the population, tend to support Republicans and Blacks, who make up 27% of the population, tend to support Democrats – the court said the remedy would be second majority-Black district, or “something quite close to it.” The U.S. Supreme Court upheld the ruling in June.

The Alabama Legislature last month approved a Republican-backed map that creates one congressional district with 50% Black population and one with 40% Black population.

Plaintiffs say it fails to remedy the Section 2 violation.

Attorneys said that a second-majority Black district cannot be drawn without violating traditional redistricting principles. The state says that a second-majority Black district would require splitting the Wiregrass or Gulf Coast counties, which they said are “communities of interest,” along with the Black Belt.

“The 2023 Plan applies the communities of interest principle fully and fairly to remedy the ‘cracking’ that Plaintiffs said was ‘the heart of’ their challenge to the 2021 Plan,” the lawyers for the state wrote.

The state cited a dissenting opinion from Justice Clarence Thomas which argued that the Gulf Coast was a community of interest.

““It is indisputable that the Gulf Coast region is the sort of community of interest that the Alabama Legislature might reasonably think a congressional district should be built around,” wrote Thomas.

But Chief Justice John Roberts, writing for the Supreme Court majority in June, seemed unconvinced, writing that “even if the Gulf Coast did constitute a community of interest,” maps proposed by the plaintiffs “would still be reasonably configured because they joined together a different community of interest called the Black Belt.”

In their filing, the state also referred to “affirmative action.” The Supreme Court, in the same month it ruled against Alabama’s maps, found that the form of race-conscious admissions practiced by some selective and elite universities was unconstitutional.

“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,’” said the state.

The state also referred to the concurring opinion of Justice Brett Kavanaugh throughout the filing. House Speaker Nathaniel Ledbetter, R-Rainsville, said after the map was passed that he thought they could flip one of the judges.

Thomas M. Bryan, founder of BryanGeoDemographics, submitted a report that said that race predominated in the Plaintiffs’ VRA Remedial Plan and Cooper Plans 1-7. The Cooper plans were proposed by Bill Cooper, an expert in the Caster vs. Allen case.

Sean P. Trende, senior elections analyst at Real Clear Politics, also submitted a statement which analyzed the map based on redistricting principles. He said that the state’s map scored the highest on compactness.

The lower court wrote in a decision on Tuesday that they are not interested in relitigating the Section 2 violation.

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: Alabama says creating two Black districts would be unconstitutional