Alabama needs a new Congressional Map - Editorial - NJ Law Journal

 

Alabama Needs a New Congressional Map

The U.S. Supreme Court's action has cemented Alabama as a state in which its Black citizens remain—as they have always been—underrepresented in Congress.

February 18, 2022 at 12:02 PM

By New Jersey Law Journal Editorial Board

Discrimination in voting on the basis of race is forbidden by the 15th Amendment and by the Voting Rights Act (VRA), which since 1965 has protected the vote. Although Alabama’s African American citizens are 27% of the state’s population, the state sends only one Black representative to Congress in its seven member delegation. We believe that the Supreme Court erred seriously in vacating an injunction against use of a newly drawn map in Alabama. The burden on the state to quickly redraw its map, and possibly revise dates related to an upcoming primary does not outweigh the public interest in making certain that the votes of African Americans who have never had representation equivalent to their potential voting strength are not diluted under the VRA.

In Merrill v. Milligan, a three-judge district court found last month that the Legislature’s newly drawn map discriminated by race and violated section 2 of the Voting Rights Act, 52 USC 10301. That measure provides, in part “A violation … is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens .”

There is no express right to vote in the federal Constitution, but the right to vote is fundamental, protected by statute and by the 13th, 15th, 19th, and 24th amendments. Yet the Supreme Court has vacated the district court’s preliminary injunction ordering a second Black majority congressional district.

On Jan. 24, the three-judge panel specified by the VRA issued a preliminary injunction barring the secretary of state from using the Legislature’s newly drawn map for the primary election to be held in late May for the November midterm elections. We were heartened that the panel included two judges appointed during the term of Donald Trump, and by its comprehensive 225-page memorandum relying on the extensive factual record which it developed at trial.

Yet the United States Supreme Court, in an unsigned order issued without opinion, on Feb. 7 stayed the preliminary injunction. The injunction compelled the Legislature to revise its post-census legislative map, to recognize a second Black majority congressional district.

The Supreme Court granted certiorari, removing the case from the district court. The majority offered no explanation but Brett Kavanaugh, joined by fellow Justice Samuel Alito, explained that the district court had acted too close to the late May primary which selects candidates for the November midterm election, and for which mail-in voting begins in late March. The court, said Kavanaugh, was relying on the cautionary principle of Purcell v. Gonzalez—a 2006 chambers opinion which has now hardened into a stone wall of uncertain extent. Chief Justice John Roberts dissented, saying that “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”

In Purcell, 18 days before a Nov. 7, 2006, election, the United States Supreme Court in a brief per curiam opinion vacated a three-judge district court panel’s “four-sentence October 5 order enjoining Arizona from enforcing” an Arizona law which required voters to present proof of citizenship at the polls. That emergency docket order has by repetition been elevated to an indeterminate but foundational principle that courts should avoid issuing highly disruptive orders too close to an election. But now too early means early in an election year.

Absentee primary voting begins March 30 for the late May primary. As Justice Elena Kagan pointed out in her dissent, Alabama has plenty of time to redraw its map: the feasibility of which plaintiffs had demonstrated. The state’s Black voters are concentrated in Montgomery County and in the rich soils of the region long known as the “Black Belt.”

We are alarmed by the ruling. The Supreme Court has long emphasized that injunctions are an extraordinary remedy—and that courts should be loath to stay the preliminary order of a lower court unless the public interest compels it to act. Justice Kagan’s dissent emphasizes that the “Thornburg v. Gingles, 478 U. S. 30 (1986), principles are: (1) that the ‘minority group is sufficiently large and geographically compact to constitute a majority’ in a district, (2) that the minority group ‘is politically cohesive,’ and (3) that the ‘white majority votes sufficiently as a bloc to enable it …’”

There is no doubt that those conditions have been met. What is also certain is that the Supreme Court, by granting certiorari, has locked in place for the 2022 midterm elections the existing racial disparities. It has cemented Alabama as a state in which its Black citizens remain—as they have always been—underrepresented in the Congress of the United States.

This sad episode reminds us that in the 60 years since Baker v. Carr’s “one person, one vote” rule was declared—despite its promise and the VRA—African Americans have not achieved an end to denial of the right to equal participation that Alabama long and notoriously withheld on the basis of race.