Three-judge panel questions state about ignoring court mandate to create second majority black Congressional district

We’re a nonprofit and nonpartisan grassroots communications and messaging hub working to build civic awareness and community power in Alabama and across the South.
Your support helps us revolutionize civic engagement and build a stronger, more inclusive South.

A three-judge panel on Monday heard attorneys’ arguments from both the Milligan plaintiffs and the state on how the court should proceed with Alabama’s Congressional maps. The judges appeared skeptical of whether the state’s map actually remedied the Section 2 violation. 

The panel of judges is the same three-judge panel who ruled in 2022 that Alabama’s 2021 Congressional plan violated section 2 of the Voting Rights Act by diluting black voting power. In June 2023, SCOTUS agreed. 

Circuit Judge Stanley Marcus and District Judges Terry Moorer and Anna Manasco held Monday’s hearing. 

Deuel Ross, deputy director of litigation at the NAACP Legal Defense and Educational Fund and lead attorney for the Milligan plaintiffs, spoke first. 

During the opening statements, Ross played videos of depositions from the reapportionment committee co-chairs Rep. Chris Pringle and Sen. Steve Livingston where both verbally agreed they understood  the court’s instructions  to create a second district that would afford black voters the opportunity to elect candidates of their choice. 

Ross said it is clear that the map passed by the Alabama Legislature on July 21 does not follow the instructions of the court and violates Section 2 of the VRA. 

The map passed by the state legislature would not give black voters an opportunity to elect voters of their choice because black candidates have historically not won elections in the counties that comprise Congressional District 2. 

Abha Khanna, attorney for the Caster plaintiffs, said  the Alabama Legislature had not made a serious effort to remedy the Section 2 violation. 

Khanna spoke on how the state responded to the orders by doing what it had already done. 

“Racial polarization in Alabama is intense and it is stark,” she said.

During the hearing on Monday, Judge Mansaco asked Alabama Solicitor General Edmund LaCour if he thought the creation of a second district that provides black voters an opportunity to elect a candidate of their choice was relevant in the case. 

LaCour said he did not think so. He also argued that, because he interprets that VRA does not require proportional representation, the state would prevail.. 

As was the case during the redistricting special session that wrapped up July 21, the state continued to prioritize Baldwin and Mobile counties as an imperative community of interest.

The three-judge panel expressed frustration at the state’s outright refusal to follow the court’s order to produce a new map that would create two majority-black districts that would allow black voters to elect candidates of their choice. 

LaCour told judges he did not believe the state Legislature had to create a second majority black district or an opportunity district to comply with the Voting Rights Act. LaCour further argued that the legislature passed maps on July 21 that followed redistricting principles even though the  state passed some of these principles in the same bill that voted the new map into law. Several times during the hearing he claimed that creating two majority-minority districts would violate the Allen v. Milligan ruling. 

“I think our position would be, that would be a violation of Allen vs. Milligan,” he said.

Judges questioned the state’s disregard for the order handed down. 

“What I hear you saying is the state of Alabama deliberately disregarded our instruction,” said Moorer.

The 2023 map in question created Congressional District 7 with just under 50.65 percent black voting age population. The 2021 map that passed had a BVAP of 55 percent in District 7. The state’s map also includes Congressional District 2, which has a BVAP of just under 40 percent – an increase from 30 percent in the 2021 map. 

An interesting twist during the hearing came from a video played from Pringle’s deposition where he explained he was not involved in creating what became known as the Livingston Congressional Plan. 

Pringle testified that he lost contact with LaCour and that LaCour was working with Senators on the Livingston plan. He testified that Livingston told him that he would need to substitute the Pringle Communities of Interest plan for the Livingston plan. Pringle refused to do so because he said he felt his plan was a better option to create a remedy for the Section 2 violation. 

The map drawn by the state created a District 2 that historically shows how a black preferred candidate cannot win an election. Neither LaCour nor any of the state’s other attorneys disputed that information. 

During the hearing, it was clear the state and the plaintiffs had differing opinions on what the scope of the hearing should be and why the parties were there at all. 

Judge Marcus repeatedly used a baseball reference asking if they were in the first inning of the first game.

During the hearing, LaCour argued the court should look at the 2023 map differently than the 2021 map. He argued that the Alabama Legislature has the authority to set redistricting guidelines. During the 2023 special session, lawmakers added guidelines to the bill that passed the map. Those guidelines included identifying three specific communities of interest to be kept intact – The Black Belt, the Gulf Coast and the Wiregrass. 

Using LaCour’s rationale, Judge Manasco asked him if that meant that the state legislature could simply change the guidelines every time there was a Section 2 violation. 

She asked if there was a point where the context becomes somewhat fixed, where the state cannot just simply redefine its principles, and that the court can have a say so in the maps. 

LaCour said that sounded a lot like preclearance. 

The 2021 redistricting cycle was the first time that Alabama did not redistricting under preclearance. Ten years ago, SCOTUS ruled in Shelby Co. v. Holder that the coverage formula under section 4(b) was invalid. That formula was used to determine which states, and other jurisdictions with a history of racial discrimination in voting, had to submit any changes to their voting policies for federal approval. This policy served to protect voters of color from discrimination in voting. 

Another big disagreement between the plaintiffs and the state comes from the Gingles test, and specifically, which Gingles factor was at play in the hearing. 

The Gingles test stems from the 1986 case Thornburg v. Gingles, which was the case that established the parameters for using Section 2 violations in voting rights cases. 

The Gingles test consists of three criteria: firstly, the minority group should be of a sizeable and sufficiently concentrated population to form a district; secondly, the minority group in question must exhibit political unity; and thirdly, the majority group should display a consolidated political stance that overpowers the voting preferences of the minority group.

The plaintiffs’ attorneys said repeatedly that they should be arguing Gingles 2 and 3 because Gingles 1 was not disputable. The state said the exact opposite – that they were not disputing Gingles 2 and 3, but that the plaintiffs needed to come forward with Gingles 1 evidence to prove the state’s map violates Section 2. 

The attorneys have until Saturday, August 19 at 8 a.m. to file any post-findings and conclusions of law. The court did not indicate when it may rule. 






You might also like

‘Sing Sing’ Movie Screening Kicks Off “Justice in Focus” Campaign in Alabama

Freedom Isn’t Free – A Continued Fight For Democracy

Vibe Tribe Bringing Together Birmingham’s Creative Scene

Scroll to Top