Whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act, 52 U.S.C.§ 10301.
Holding
Plaintiffs demonstrated a reasonable likelihood of success on their claim that Alabama's redistricting plan violates Section 2 of the Voting Rights Act of 1965. District Court for the Northern District of Alabama affirmed.
Alabama's congressional districts have had roughly the same configuration since 1993, with one majority-minority district out of its seven total districts. Data from the 2020 United States Census showed that while the state did not gain or lose any representation at the federal level, the racial diversity in the state had increased, with the portion of white residents having fallen from 68% to 64% over the prior ten years, while Alabama's Black population grew by 3.8 percent over the same period.[1][2]
In November 2021, the Alabama Legislature modified the existing districts to account for shifts in population. Soon after, multiple groups of plaintiffs sued, asserting the districts violated Section 2 of the Voting Rights Act of 1965 and the Fourteenth Amendment to the United States Constitution. The plaintiffs sought the creation of an additional majority-minority district. Two suits (Singleton and Milligan) were assigned to a three-judge district court consisting of Judges Stanley Marcus, Terry F. Moorer, and Anna M. Manasco, and the third suit (Caster) was assigned to just Manasco. On January 24, 2022, the district courts in each of the cases enjoined the districts, holding they violated the VRA. The judges issued an order that Alabama must redraw its maps, such that "any remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it."[3] The courts did not decide the constitutional issue, applying the doctrine of constitutional avoidance.[4] Alabama appealed the following day to the Supreme Court in Milligan and the United States Court of Appeals for the Eleventh Circuit in Caster.[5]
Supreme Court
Initial injunction
The Supreme Court stayed the district court's injunctions in an order issued on February 7, 2022. The order stated that there was probable jurisdiction from the district court's order in Milligan, and granted certiorari before judgment in Caster. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor dissented, stating "Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument."[6] Chief Justice John Roberts also wrote a dissent to the order to grant a stay, but agreed the Court should review the case.[6]
In response to Kagan's dissent, Justice Brett Kavanaugh wrote a concurrence, joined by Justice Samuel Alito, stating that under Purcell v. Gonzalez, courts should not enjoin enforcement of election-related laws or regulations so close to the election.[5] Again in response, Kagan noted that Alabama "enacted the current map in less than a week and can move quickly again if it wants to", and that their "primary is still four months away, while the general election is nearly nine months away." By contrast, Purcell was decided only 15 days before the 2006 election.[5]
On June 8, 2023, the Supreme Court affirmed the district court and held Alabama's map likely violated the Voting Rights Act. Chief Justice John Roberts delivered the opinion of the court, except for Part III-B-1;. His opinion was joined in whole by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, and in part by Justice Brett Kavanaugh.[8][9]
Dissents
Justice Clarence Thomas wrote a dissent, joined fully by Justice Gorsuch and partially by Justice Alito and Justice Barrett. Thomas wrote that the decision would force "Alabama to intentionally redraw its longstanding congressional districts so that black voters can control a number of seats roughly proportional to the black share of the State’s population. Section 2 demands no such thing, and, if it did, the Constitution would not permit it."[10] Justice Alito wrote a separate dissent joined fully by Justice Gorsuch.
On June 12, 2023, the Supreme Court formally lifted their stay on the district court's decision.[11] On June 15, the Alabama Attorney General's office informed the District Court for the Northern District of Alabama that the Legislature would draft and pass a new congressional district map by July 21 in a special session.[12][13] The defendants had previously asserted that any map must be in place by October 1, a month prior to Alabama's candidate filing deadline on November 10 for the 2024 general elections.[14]
By July 2023, the Alabama legislature created a new redistricting map that had only one black-majority district, while raising the proportion of blacks of voting age in a second district. This map was approved by Alabama Governor Kay Ivey on July 21, 2023. Democratic lawmakers in the state criticized the map for failing to meet the two black-majority district requirement set by the prior litigation. Ivey stated "The Legislature knows our state, our people, and our districts better than the federal courts or activist groups, and I am pleased that they answered the call, remained focused, and produced new districts ahead of the court deadline."[3] The new map had to be approved by the district court.[3] The district court rejected the new maps on September 5, 2023, ruling that they were "deeply troubled" by the legislature's failure to follow the court order, and assigned a special master to redraw new districts.[15] The special master submitted three options for redistricting that includes the required two black-majority districts by September 25, 2023, to be reviewed by the three-judge panel.[16] The judges' panel selected one of these for their approval on October 5, 2023.[17]
State attorney general Steve Marshall had filed for an emergency stay of the rejection of the legislatures revised maps to the U.S. Supreme Court, but the Court denied the request on September 26, 2023.[18] Marshall then dismissed the state's remaining appeal to the Supreme Court against the district court's order on September 29, while the state's lawyers argued to the district court that the special master's proposed maps were racial gerrymanders.[1][2]
Related cases
Alabama
A court case, Thomas v. Allen, challenging the Alabama Senate district maps under Section 2 of the VRA and challenging both legislative chambers' district maps under the Fourteenth Amendment, was filed on November 16, 2021. Litigation was paused pending the outcome of Milligan.
Louisiana
Congressional district case
On June 28, 2022, the Supreme Court of the United States granted certiorari and a stay in the case Ardoin v. Robinson. This case involved Louisiana's congressional redistricting, where the legislature drew one majority-minority district out of six congressional districts despite Louisiana having a black population of 30%. The Supreme Court granted certiorari before judgment in this case but stated that it would hold the case in abeyance pending the decision in Milligan. the state, which petitioned the Supreme Court for emergency relief in order to stay the Robinson case, argued that the Robinson case depended on the same grounds as Milligan.[19] On June 9, the day after the Milligan decision, the Robinson Respondents represented by LDF and the ACLU filed a motion to lift the stay. On June 14, Louisiana Attorney General Jeff Landry and Louisiana Secretary of State Kyle Ardoin petitioned the Supreme Court to hear in full their appeal of the Robinson case, arguing that "facts alone also suitably distinguish the Court’s [Milligan] decision" from Robinson.[20]
On June 26, 2023, The Supreme Court dismissed Louisiana's appeal and declined to hear the case themselves, thus paving the way for the matter to be resolved in the lower courts 'in advance of the 2024 elections.' It raised the likelihood that Louisiana will have to draw a second majority-black congressional district, pending any decision by the 5th Circuit.[21] On June 28, the 5th Circuit issued a request for both plaintiffs and defendants to submit letter briefs on whether or not to remand the case back to the Middle District of Louisiana. On the same day, the plaintiffs asked the Middle District for a status conference to determine a process for redrawing the congressional map.
On September 28, the Fifth Circuit ordered the district court to cancel proceedings for redrawing the congressional map in a 2-1 decision, siding with the Defendant Louisiana Secretary of State that the district court did not allow them enough time to draw a VRA-compliant map, and rejected a request by the plaintiffs to delay their order. The plaintiffs subsequently filed an appeal to the Supreme Court against the Fifth Circuit's order.[22][23] The Supreme Court declined to reverse the Fifth Circuit's order, though as written by Justice Ketanji Brown Jackson, the Court expects that the state legislature to promptly review options for a compliant map from the state to be used for the 2024 elections.[24] After review, the Fifth Circuit lifted all prior orders, and ruled that the Louisiana state legislature must complete new maps by January 15, 2024, which would still be reviewed by the district court for compliance with the VRA.[25]
Governor Landry signed the map into law on January 22.[28]
Other cases
In addition, other active cases filed against Louisiana targeted the state legislative and Louisiana Supreme Court maps under Section 2 of the VRA. The case challenging the district map of the State Supreme Court, Chisom v. Louisiana, has been active since 1986, and resulted in a 1992 consent decree in which the district map would not violate Section 2. The state filed a petition to dissolve the consent decree in 2021 but was rejected by a district court, after which the state appealed to the 5th Circuit, which held oral arguments in March 2023.
Georgia
Several lawsuits were filed against Georgia to challenge congressional and state legislative maps under Section 2. The congressional map cases largely argue for another minority-opportunity district in the Metro Atlanta region. The Northern District ruled in October 2023 that the Georgia legislature must redraw the congressional and legislative maps to support the minority-opportunity district in Metro Atlanta by December 9, 2023, or else the court will draw such maps.[29][30] The same day, a special session was called by Governor Brian Kemp for November 28, 2023 to redraw the maps.[31]
In addition, a lawsuit, Rose v. Raffensperger, was filed against the at-large election method used for electing members of the Georgia Public Service Commission under Section 2. The Northern District ruled in favor of the plaintiffs, ordering that the elections for two seats on the GAPSC be postponed until the election method is changed.[32] An appeal was filed by the state to the 11th Circuit, where litigation continues; an emergency stay of the Northern District's order was granted by the 11th Circuit[33] but was then vacated by the U.S. Supreme Court in August 2022.[34]
At the time of the decision, several other federal court cases across 10 states, including South Carolina and Texas, argued against congressional, legislative, and other district maps as violating Section 2. Stays were issued in several of these cases prior to the Milligan decision.[35]
^The case was titled Merrill v. Milligan until Wes Allen replaced John Merrill as Alabama Secretary of State. However, the case was argued as Merrill v. Milligan, No. 21- 1086 at oral argument before the court.
