The hearing on the challenges to the Alabama legislature’s redistricting map wrapped up Wednesday with former Congressman Bradley Byrne testifying for the State, and closing arguments were presented for both sides.
The challenges were consolidated into three named cases: Caster v. Merrill, Millington vs. Merrill, and Singleton v. Merrill. John Merrill, in his capacity as Secretary of State of Alabama, is named as a defendant in all three suits.
Two issues are being considered: the “whole county” plan, favored by State Senate Minority Leader Bobby Singleton (D-Greensboro) as a named plaintiff, and an alleged violation of Section 2 of the Voting Rights Act of 1965. The plaintiffs are seeking a preliminary injunction blocking implementation of the plan approved by the legislature during the 2021 Special Session, which is set to be enacted on Jan. 28.
The hearing began last Monday at the Hugo Black Federal Courthouse in Birmingham before a three-judge panel composed of U.S. Circuit Judge Stanley Marcus and U.S. District Judges Anna Manasco and Terry Moorer.
Marcus closed by signaling the Court’s intention to have an opinion issued within two weeks. Qualifying for 2022 elections, which includes electing representatives for the newly drawn districts, closes on Jan. 28.
Wednesday’s hearing began with Byrne, a Republican who represented Alabama’s First Congressional District, testifying as a witness for the State. He was questioned for the State by James “Jim” W. Davis, who handled the majority of the cross-examinations during the first week of hearings, along with Alabama Solicitor General Edmund LaCour, Jr. and A. Barrett Bowdre, Deputy Solicitor General.
When asked by Davis if he had concerns about splitting districts along racial lines, Byrne was emphatic.
“When you’re a congressman, you should be representing everybody and thinking, "How I’m going to help everybody in my district?” Byrne said. “If you help everybody, everybody rises. That’s what you want.”
Byrne later discussed his relationship working with Democrats, particularly Rep. Terri Sewell, who represents Alabama’s Seventh District.
“I worked all the time in a bipartisan manner because I believe the best legislation in Washington is bipartisan legislation,” Byrne said.
He went on to praise Sewell’s effectiveness and to expand on times when the two supported each other’s causes and efforts.
After cross-examination exploring Byrne’s outreach, or lack thereof, to the Black community, Davis gave Byrne a chance to offer any final thoughts. An objection to the open-ended question was made after the answer was given and was overruled.
“I know the court has some difficult decisions to make, but we’re pretty far along in this campaign cycle,” Byrne said. “I’ve seen what it does to congressmen in other states when, at the last minute, courts start moving things around.”
Byrne’s testimony concluded the morning’s business as well as this phase of the hearing.
The afternoon session was dedicated to the closing arguments, beginning with counsel for the Singleton, Caster &amp;amp; Milligan plaintiffs, respectively. They were followed by counsel for the State. Each side was allocated 90-minutes for their arguments, with the three named plaintiffs each having 30 minutes.
James U. Blacksher, representing the Singleton plaintiffs, began the session. He argued the issue in this case is whether a district, authorized in 1992 as conforming with the Voting Rights Act, would be Constitutional after a subsequent ruling by the U.S. Supreme Court in 1993 (Shaw v. Reno), which found that such gerrymandering was a violation of the equal protection clause of the U.S. Constitution.
Blacksher was followed by Abha Khanna for the Caster plaintiffs. Khanna is an elite litigator with an impressive background, who was the most prominent of all the plaintiffs’ attorneys to appear throughout the week. After graduating Yale Law School, she rose to partner at Perkins Cole, an international firm based in Seattle, Wash. She is currently a partner with Elias Law Group, founded by controversial Democrat Party operative, Marc Elias.
After delivering the bulk of her closing, Khanna was pressed by Manasco on the relief the Caster plaintiffs were seeking. Shortly after, Marcus was more explicit.
“What would you have us say to the legislature if we were to otherwise agree?” Marcus asked. “What is it they have to do? Do they have to draw two minority-majority districts in order to comply with the Voting Rights Act? Or is it enough to create two opportunity districts?”
“That Alabama must adopt a map, that any map Alabama adopts must comply with Section 2, by containing two congressional districts that provide Black voters the opportunity to elect their preferred candidates," said Khanna. "As a legal matter, I believe that is the remedy for a Section 2 violation."
Deuel Ross of the NAACP Legal Defense &amp;amp; Educational Fund made the closing argument on behalf of the Milligan plaintiffs.
Manasco made a similar inquiry to Ross as to Khanna.
“Do you see a difference between an injunction use of a map with two districts and on the other hand an injunction with two majority-black districts?” asked Manasco.
“This court can and should issue a declaratory judgment saying this violates Section 2 of the Voting Rights Act,” Ross said.
After a final break, Solicitor General Edmund LaCour delivered the closing argument on behalf of the state.
LaCour took aim at the assertions of intent, crucial to the equal protection claim being made by certain plaintiffs.
“What is relevant is not the intent of the 1992 legislature, it is the intent of the 2021 legislature,” LaCour said. “What was the intent that led to this act, Act 2021-555, and we have excellent evidence to show the race-neutral reasons that produced this map.”
LaCour’s remaining time was spent addressing and attempting to undermine the expert testimony offered by the plaintiffs that had taken up the first six days of testimony.
At the conclusion, Marcus took a moment to reflect on the complexity of the case
“I want to take a moment to commend all of the lawyers in this case for having done a really outstanding job for preparing and marshaling a tremendous amount of evidence for the court to consider,” Marcus said. “You have presented a very thorough and detailed set of facts, broad and deep, that will allow this court hopefully to reach an appropriate answer.”
His comments were echoed by Manasco and Moorer.
Manasco asked the final substantive question, to Davis for the State. She asked what a timetable for the legislative process would look like if relief was granted.
Davis suggested it would take multiple weeks.
“There would be more the legislature would have to weigh, it would blow up the map," said Davis. "I don’t see how it could possibly be done within a couple weeks.".
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