Alabama likely won't be successful in appealing a recent decision by a panel of federal judges that struck down a congressional map passed by state lawmakers in July, according to Hans von Spakovsky, a senior legal fellow at the Heritage Foundation.

Last week, the federal panel ruled against Alabama in the case of Allen v. Milligan, saying it could not use the new congressional map developed by the Alabama Legislature during a special session in July for the 2024 election. It also assigned a special master and cartographer to draw a new map.

"I actually think Alabama is correct here. I think that the lower court is getting things wrong and I think they're overreading what the Supreme Court said, but I think the Supreme Court also made a mistake in simply taking the factual findings of the lower court and assuming they were all true," Spakovsky told 1819 News on Monday. "The Supreme Court has made it very clear, and in fact, they even said this in the Milligan decision that the Voting Rights Act Section II does not require and in fact does not force proportional representation. In fact, that's unlawful and unconstitutional. In other words, you can not go into a state and say if a minority population is a certain percentage of a state, they are not therefore entitled to that same percentage of legislative seats whether it's congressional or legislative. But that seems to be what the lower court is doing. I don't think they actually established properly that there was any real discriminatory conduct going on by the Legislature when they were simply continuing in essence a plan that had been drawn up three decades before by another federal court. That may not do them any good in this situation. The lower court obviously hasn't changed its mind about this. They're going to force the state to put in two majority-minority districts to ensure proportional representation and apparently, the judges feel that they've been told by the Supreme Court that they can do that."

Alabama Secretary of State Wes Allen has said he needs the congressional map for the 2024 elections by October 1. According to Spakovsky, that will be a factor in the United States Supreme Court quickly deciding whether to hear the case on appeal by Alabama Attorney General Steve Marshall.

"The Supreme Court starts up its term in October. The judges will have an initial conference behind closed doors in which they decide which of the most recent petitions they have received that they will accept for review. I think we'll hear pretty quickly once the Supreme Court returns and I kind of doubt Alabama is going to be successful," Spakovsky said. "Again, not because there isn't merit in their arguments but I think the Supreme Court issued its decision and I don't think they're going to want to look at the case again. Sometimes they won't make a decision at those internal conferences, and they'll pass it to another conference so there's no way to predict when they'll make a decision, but I expect they'll do it pretty quickly."

Spakovsky also said a recent Supreme Court decision on affirmative action admission policies at colleges and universities being unlawful that attorneys for the state of Alabama have referenced in support of the congressional map passed in July likely wouldn't help on this appeal with the Supreme Court.

"I really don't think that that case which involved college admissions and a different civil rights statute, it did not involve the Voting Rights Act, and I don't think that that decision really is any indication that the Supreme Court is somehow going to act differently in this voting rights case," Spakovsky said. "I think it is a negative effect when the Supreme Court in essence is letting lower court judges enforce proportional representation even though they deny they're doing that, that's in essence, from a practical standpoint, what they're doing and I think that's just wrong."

Adam Kincaid, executive director of the National Republican Redistricting Trust, told 1819 News, "The Supreme Court could take a week or two to decide on what to do with Alabama's appeal." 

"If the Court doesn't grant the stay then we will see proposals from the Special Master by September 25 with a hearing on objections to come around October 5. Assuming the district court then imposes a new map the state would have an opportunity to appeal again if the map violates the Supreme Court's VRA remedial precedents like Perry v. Perez, Shaw v. Reno, Bartlett v. Strickland, and DeGrandy v. Johnson," Kincaid said.

House Pro-Tem Chris Pringle (R-Mobile)  told 1819 News on Monday he'd submitted a congressional map to the Special Master for his consideration. The map is the plan that the reapportionment committee initially approved in July but later changed by Republicans in the state Senate during the special session.

"I just wanted the court to see there was a serious attempt to draw a plan that complied with the court order. It was the only way I could get the plan before the court," Pringle said. 

A spokesperson for Marshall said last week after the federal court's decision was announced, "While we are disappointed in today's decision, we strongly believe that the Legislature's map complies with the Voting Rights Act and the recent decision of the U.S. Supreme Court. We intend to promptly seek review from the Supreme Court to ensure that the State can use its lawful congressional districts in 2024 and beyond."

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