Last week, the U.S. Supreme Court heard arguments in the case over Alabama's recent redrawing of its congressional districts. Alabama Attorney General Steve Marshall has been arguing for the state to keep its new map based on 2020 census data, while the plaintiffs say it violates the Voting Rights Act and should be invalid due to racial gerrymandering.
During a recent appearance on the Alabama Public Television’s Capital Journal show, Marshall laid out the crux of his argument.
"One thing I think is important to remember is, what's the history of this map," Marshall said. "If you look back, this map had its origin as a result of litigation back in the early 1990s, and as a result of the work of a federal judge, drew the maps that we now have had in place for a little over 40 years.
"These are maps that have been proposed by a Democratically-controlled House and Senate in Alabama in 2000, was precleared and approved during the Obama administration, Eric Holder being the [U.S.] Attorney General, his civil rights division blessed the map."
Marshall said the map was litigated multiple times in 2010 and was found to be valid each time.
"If you took the 2010 map and laid it over the 2020 map, there are very few changes at all… It's that same map that we've had historically since the 90s, and yet the three-judge panel suddenly found that that's in violation of Section 2."
Marshall said State Rep. Chris Pringle (R-Mobile) and Alabama Sen. Jim McClendon (R-Springville) led a committee in the State Legislature to draw a new map using "traditional redistricting principles," such as incumbencies, historically recognized communities of interest and compactness.
"What we've seen through the arguments of the Court is really a very central question, and that is, under the Fourteenth and the Fifteenth Amendments, is a state allowed to use race as a criteria in drawing the maps? We say no."
Marshall said if they used race as a basis for drawing the map, it would have opened the state to even more lawsuits for violating the law.
One of the experts for the plaintiff modeled 2 million different scenarios to see how draw two majority/minority districts could be drawn without factoring in race, but they couldn't do it, Marshall said.
"Our argument to the court is, if you're asking us to use race as a criteria, then you are compelling us to be able to violate the Constitution in the work that we've done," he explained.
While Marshall is confident in the newly drawn map, he did say he expects the Court to provide much-needed clarity on how to deal with similar issues in the future. As it currently stands, he said competing statutes can confuse how to interpret certain aspects of district drawing. He gave the example of how, at one point in the argument, Solicitor General Edmund LaCour asked the Court for guidance. However, Justice Brett Kavanaugh later asked LaCour for how the Court should handle the issue of compactness.
"When you have the Court seeking clarity from the advocates and that the State of Alabama clearly reaching out saying 'we think you need to provide more clarity,' in it of itself it shows the difficulty in the application of these statutes and the difficulty for state policymakers to be able to comply with the law," Marshall said.
The Supreme Court has yet to decide on the matter, but Marshall is optimistic his arguments will prevail, but the outcome will have a big impact on Alabama as well as several other states with similar litigation pending.
"We think, unlike the plaintiffs, that we've given the Court some benchmarks to consider, particularly this idea of how would an unbiased map drawer be able to draw those maps using the traditional criteria that have been used in redistricting?"
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