BIRMINGHAM, Ala. (CN) — A federal judge grilled Alabama's solicitor general Monday over redistricting efforts that created just one Black-majority voting precinct among seven in a state where Blacks make up a quarter of the population.
“What I hear you saying is the state of Alabama deliberately chose to disregard our instructions to draw two majority Black districts,” U.S. Senior Circuit Judge Stanley Marcus said. “Did they deliberately disregard it or not?”
Alabama Solicitor General Edmund LaCour dodged the question, as he did with several phrasings of it during a Monday hearing at the Hugo L. Black U.S. Courthouse where attendance was at capacity, leaving an overflow crowd of about 85 people to watch a simulcast of the proceedings in the jury assembly room.
Drafted and passed last month during the final two days of a weeklong special session, the new map replaces one ruled unconstitutional earlier this year by a panel consisting of the Clinton-appointed Marcus as well as U.S. District Judges Anna Manasco and Terry F. Moorer, both Trump appointees.
The panel had ordered the Legislature to draw a second Black majority district, “or something quite close" to it, and the U.S. Supreme Court later affirmed the ruling in a rare reinforcement of Section 2 of the Voting Rights Act.
Come July, however, lawmakers opted not to increase the number of Black-majority districts in their latest effort. The new map instead creates what the Legislature has called an “opportunity” for Black voters in a district where their share of the voting population is increased from 29% to 39%.
In the existing Black-majority district, meanwhile, their numbers are diminished from 54% to 50.65%.
Under questioning by Judge Marcus on Monday, LaCour insisted that the 2023 plan was “as close the Legislature could get” to a second Black-majority district without violating the Constitution.
The case pits lawmakers against three groups of voters represented by the Alabama State Conference of the NAACP and the American Civil Liberties Union. Marcus questioned why the state can't do what these groups have in various map proposals.
“The plaintiffs’ illustrative maps strongly suggest that Black voters in Alabama could constitute the majority in a second reasonably configured district,” Marcus said. “That determination was made by us and affirmed by the Supreme Court; is that in dispute?”
Lacour said it was not. Rather, he continued, the Legislature redrew the map based on “objective criteria” and that, crucially, it was the state’s belief that race is not an objective criteria.
Condemning the race-reliant maps proposed by the state's challengers, LaCour called it “affirmative action in redistricting” and claimed the competing maps split more counties and leave Black populations less compact.
LaCour also insisted that the new map reflects the Legislature’s intent to preserve communities of interest, including the white-majority Wiregrass and Gulf Coast. Another objective of lawmakers, LaCour noted, was to unify more than the six counties that have historically been split.
“The result of the 2023 plan is to answer this call, to take out those disproportionately discriminatory components of the 2021 plan, and they are gone,” LaCour said, noting the 2023 no longer fragments the community of interest known as the Black Belt — a region named for its fertile black soil and home to a majority of residents who are descendants of enslaved individuals.
“As a result," LaCour continued, "the 2023 plan does not produce discriminatory effects on account of race.”
NAACP attorney Deuel Ross argued meanwhile that the new map has the same effect of the unconstitutional 2021 map, and that the Legislature cured no defects.
“There's substantial evidence that the Legislature was engaged in gamesmanship, rather than a good faith effort to comply with this court’s order,” Ross said, pointing to stipulations that lawmakers made in the enacting legislation that contain rare “legislative findings” defining their intent.
Abha Khanna, who represents a group of Black Alabamians led by Marcus Caster, said the Legislature willfully "thumbed its nose" at the judiciary, "adding yet another marker to its centuries and decades-long pattern of erecting barriers to racial equality."
An attorney with the Elias Law Group in Washington, Khanna said the new map actually doubles down on violating Section 2 of the Voting Rights Act — the issue that the Supreme Court singled out in June.
The state solicitor general faced tough questions not only from Judge Marcus but Manasco as well.
“We indicated what an appropriate remedy would be … it would be a map that includes an additional opportunity district,” she said. “What role did our statement about the additional opportunity district play in what was necessary to comply with our order?”
LaCour said the state could not put race first and was not bound by the same “prioritization of principles” as the court.
Manasco went further.
“At what point does the federal court, in your view, have the ability to comment on whether the appropriate remedy includes an additional opportunity district? On liability? On remedy? Both? Neither?” she asked.
LaCour said the redistricting process anywhere is an “intensely local appraisal” of many factors, and the court’s guidance is neither more nor less important. Calling out to a provision of the Voting Rights Act that the Supreme Court struck down a decade earlier, the solicitor general said the court’s order sounded like a “preclearance regime.”
With neither party opting to call additional witnesses, the court heard closing arguments to proceed that afternoon. Moorer, the third member of the panel, sat silent throughout the proceedings Monday.
If the panel determines the new map is also unconstitutional, the court will likely appoint a special master to draw a new map.
Manasco indicated last week that the panel was prepared to settle the issue.
“We are not at square one in these cases,” she wrote in an order. “Regardless, the plaintiffs bear the burden to establish that the 2023 plan does not remedy the likely Section 2 violation that this court found and the Supreme Court affirmed.”
Outside the courthouse, self-proclaimed street preacher Cedric Hatcher was among a small group of the public showing support for the challengers.
“We’re just here to bring awareness to the consequences of the map,” he said. “If you take our vote, you take our voice. They want to take our vote, they want to take our voice, but we are praying this court won’t let them. It’s supposed to be justice for all, not justice for y’all.”
Follow @gabetynes
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
