Alabama will fill seven seats in the U.S. House of Representatives in the 2024 election. But we won’t vote according to the district lines drawn by our legislature.
Instead, we’ll use Remedial Plan 3, a congressional map selected by a federal court from among three maps their appointed special master created. And it’s unlike anything we have drawn in the last 30 years.
This is the conclusion of a multi-year saga, which began with the 2020 federal census. According to its constitutional authority and responsibility, Alabama drew a congressional map in 2021 based on that census. Comprised of seven districts, it resembled our previous maps.
However, it was challenged in the U.S. District Court for the Northern District of Alabama in 2022.
Under the Voting Rights Act, the court held that the map (containing only one district with a majority of black voters), had to be redrawn considering Alabama’s 27% black population so that the minority group’s voting power would not be improperly diluted.
This past June, in Allen v. Milligan, the Supreme Court upheld the lower court’s order requiring Alabama to create a second district in which “Black voters either comprise a voting-age majority or something quite close” (not only this year but in every future redistricting).
This decision was based on Section 2 of the Voting Rights Act, which requires that no minority group have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” reasoning that black voters’ power is diluted when the black population is divided between districts because their chosen candidate might never win a majority.
The Alabama Legislature entered a special session, debated the definition of “something quite close” and the meaning of “opportunity,” and passed a new map containing one district with a black voting age population of 50.65%, and another with a black voting age population of 39.93%.
Democrats again challenged it, and the district court found it “substantially likely” that the 2023 map also violated the Voting Rights Act. It appointed a special master with orders to create three alternative maps for the court to choose from by September 25.
Alabama applied to the Supreme Court for an emergency stay because it was entitled to appeal any new map before being forced to implement it in the primaries, but the Court denied this request and the special master went on to submit three maps.
On October 5, the court selected “Remedial Plan 3,” creating one district with a black voting age population of 48.7% and one with a black voting age population of 51.9%, finding that this map “completely remedies the vote dilution.”
There are several problems with this outcome, constitutional concerns that all Alabamians, black, white, or otherwise, should share.
Right alongside Section 2’s requirement that no minority have “less opportunity” to elect representatives of their choice is this key disclaimer:
“[N]othing” in Section 2 “establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”
This is because, if a state aims to guarantee racially proportional representation through its congressional maps, it must (1) redistrict on the basis of race, and (2) unconstitutionally “pack” minorities into a few districts to ensure that their chosen representatives win those districts (based on the assumption that they would vote for a member of their race).
Such “packing” is unconstitutional because it completely dilutes the voting power of the members of that minority group that remain outside those districts. Ensuring that a minority group will win certain districts simultaneously limits that group from influencing any other district.
This is what Allen v. Milligan does.
By “ensuring” black voters have an opportunity to elect two representatives of their choice, the Court has eliminated the choice of many of the black voters in Alabama, limiting their influence to two districts only.
Even more egregious, Allen v. Milligan plainly requires redistricting on the basis of race, which is strictly unconstitutional.
In Shaw v. Reno (1993), the Supreme Court said, “[r]acial gerrymandering, even for remedial purposes, may balkanize [the Supreme Court] into competing racial factions” undermining “the goal of a political system in which race no longer matters.”
The Constitution and Voting Rights Act ensure that minorities are given a fair opportunity to compete “and to elect representatives of their choice” by prohibiting intentional racial discrimination in districting. Allen v. Milligan gets this backwards.
While it was an attempt to secure the fair outcome of proportionality (that Alabama’s congressional representatives reflect its population in race and political leaning), Allen did so by forcing a “thumb on the scale” approach, dissenting Justice Thomas said, rather than by mandating fair redistricting that would result in accurate representation naturally. Section 2 of the Voting Rights Act cannot be interpreted to require racial gerrymandering, as simple and convenient as that answer may seem.
Allen v. Milligan also directly contradicts the rule of Students for Fair Admissions v. Harvard (2023), in which the Court struck down race-based college admissions policies as violating the 14th Amendment’s guarantee of equal protection. It held that race cannot be the sole basis for a student’s admission or non-admission.
But in Allen, the Court ordered Alabama to redistrict with the sole focus of meeting a two black-majority district quota. The Supreme Court even employed affirmative action reasoning in Allen by explicitly considering “the backdrop of substantial racial discrimination within” Alabama to determine whether minorities and non-minorities were given an equal vote under our congressional map. If the same law that invalidated affirmative action was applied to congressional districting, Allen’s holding would be unthinkable.
Finally, Article I, Section 4, Clause 1 of the Constitution specifically designates the power to determine the “Times, Places and Manner of holding Elections for Senators and Representatives” to state legislatures, as opposed to the federal government. In Shelby County v. Holder (2013), the Supreme Court ended the federal government’s authority to oversee Alabama’s election policies established in Section 5 of the Voting Rights Act. Nevertheless, the Court effectively reinstates this authority through Allen, permanently changing our congressional maps with no opportunity for appeal.
Allen v. Milligan will have a precedential effect on other redistricting battles going on around the country and these cases, taken together, could significantly impact the political landscape after the 2024 elections.
The shared goal across this debate is to have a legislature that reflects the population it represents. Next week, my colleague Talmadge Butts writes for 1819 News to propose a solution based on the Founders' intent for proportional representation in the House of Representatives that would foster a fair system in which every voter is heard, rather than force proportionality by guaranteeing the wins of the “right” candidates.
Katrinnah Darden is a Staff Attorney at the Foundation for Moral Law (www.morallaw.org). Those with constitutional concerns may call the Foundation at (334) 262-1245 or email katrinnah@morallaw.org.
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