Back in 1812, Elbridge Gerry, then the Governor of Massachusetts, created an odd-shaped Congressional district in his state, manipulating the boundaries to create an advantage for his political party. His legacy, called “gerrymandering,” lives on, and Alabama’s latest attempt to use it to avoid giving Black Alabamans what a federal court called “a fair and reasonable opportunity to elect candidates of their choice” was rejected by the U.S. Supreme Court by a 5-4 vote on June 8, 2023. Alabama did not care.

The State’s new Congressional redistricting plan ignored the Supreme Court’s order to create a second majority-Black district. As a consequence, a unanimous decision by the Southern Division of the United States District Court for the Northern District of Alabama on September 5 rejected Alabama’s proposed map. The Court ordered a special master to create and submit three maps with valid Black-majority districts by September 25. They wrote they were “deeply troubled” by Alabama’s proposed plan and permanently enjoined Alabama from “conducting any elections under its 2023 plan.”

Alabama has already appealed the District Court’s ruling in Singleton v. Allen and Milligan v. Allen to the U.S. Supreme Court (both cases are included in the decision), arguing the State’s proposed plan does not violate the Voting Rights Act of 1965 (VRA) by what CNN called “weakening Black voters power.” The news network said it was “unclear whether the Supreme Court is open to revising a case that has become a vehicle for not only testing the conservative justices’ appetite for undoing the court’s past ruling on Section 2 of the Voting Rights Act, but also helping to determine which party controls the next U.S. House of Representatives.”

The Supreme Court’s 5-4 opinion drew what AP called the “surprising support” of Chief Justice John Roberts and Associate Justice Brett Kavanaugh, along with the Court’s three liberal associate justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The 3-0 decision of the Alabama District Court was authored by U.S. District Judge Stanley Marcus with concurrences by district Judges Anna M. Manasco and Terry F. Moorer.

Marcus’s 217-page opinion began by explaining that the case arrived in the district court when plaintiffs alleged that Alabama’s proposed map was “racially gerrymandered” in violation of both the U.S. Constitution and Section Two of the VRA. This Section “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” identified in the Act. The District Court had previously enjoined the State from using a discriminatory map in the 2021 election, and the U.S. Supreme Court agreed.

Because federal law requires states to have the “first opportunity” to draw the court-ordered remedial plan, Alabama was permitted to do so. But in June, the Supreme Court affirmed its preliminary injunction, finding “no reason to disturb this court’s careful, factual findings.” After the rejection, Alabama was given five additional weeks to submit a new plan, which had only one majority-Black district. The District Court opinion concluded that the revised Alabama plan “does not remedy the Section Two violation…” and would cause “plaintiffs irreparable injury” if put into effect. They also said it would be “practically impossible” for the State legislature to fix its map in time for the 2024 election.

The District Court’s remedy was based on its belief that it “had no reason to believe” that giving the Alabama Legislature another opportunity to draw a fair map would change the result. Instead, the opinion directed a Special Master and a cartographer to create a proper “remedial map.” Marcus explained that the court does not “take lightly federal intrusion” into a matter left to state legislatures. But he wrote, “We have now said twice that the Voting Rights case is not close.” He said the court was “disturbed by the evidence and stressed that the law requires the creation of an additional district that affords Black Alabamans, like everyone else, a fair and reasonable opportunity to elect candidates of their choice.”

The District Court opinion recounted the laws that led to its decision, beginning with the U.S. Constitution that required that members of the U.S. House of Representatives “be apportioned among the states” according to their numbers and state elections. He explained that a national census sets those numbers every ten years and its findings divide the state into Congressional districts that “must not provide less opportunities for racial minorities to elect representatives of their choice.” Alabama continuously ignored the laws.

Except for a brief six-year period in the Reconstruction Era following the American Civil War, Alabama has had all-white Congressional delegations to fill its seven seats. The first Black Congressman since Reconstruction was elected in 1992. He is still the only one. This single Black delegate, plaintiffs persuasively argued, does not adequately represent the State’s 27.16% Black population. Just over a quarter of the state should not get one-seventh of its votes. At hearings, plaintiffs’ experts provided extensive population and mathematical evidence, suggested maps, and stated that Alabama’s racial polarization was “clear and stark.”

The state said its maps “complied with the one-person, one-vote rule” and that nothing in Section Two of the VRA supported “Plaintiffs extraordinary request…to impose districts (that) “surgically targeted racial compositions while jettisoning numerous districting criteria.” The District Court’s opinion strongly stressed it had “concluded in a 227-page opinion that (Alabama’s) plan violated Section Two and “it was not a close one.” Marcus then reviewed the Supreme Court opinion in detail, quoting both Roberts and Kavanaugh, while explaining how the new plan totally disregarded it.

The District Court said it is “deeply troubled” by the State’s actions and its admission that the new map “…does not provide the remedy federal law requires.” Hopefully, Alabama’s latest attempted detour back to the Supreme Court will be seen as just another unsuccessful attempt to delay the implementation of fair apportionment in time for the 2024 election.