The Milligan v. Allen Alabama redistricting case could have a long-lasting effect on national politics, depending on how it is ultimately decided.

A federal court hearing with a three-judge panel to decide whether the map passed by Republicans recently in a special session will stand for the 2024 election is set to begin on August 14 at the Hugo L. Black Federal Courthouse in Birmingham.

A three-judge panel in federal district court in January 2022 found Alabama's congressional map passed in 2021 likely unconstitutional and said a "remedial plan will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it." The U.S. Supreme Court affirmed the judges' opinion on appeal by the State of Alabama in June.

Paul Reynolds, national committeeman for the ALGOP, told 1819 News in a recent interview a court opinion siding against Alabama's map could lead to Republicans also losing House seats in Tennessee and Texas.

"It's a simple fact that it sets off a chain reaction because it's a precedent," Reynolds said. "The data I saw was that it would immediately place five seats in Texas in the danger zone from lean Republican to lean Democrat and there were ten (seats) that over a period of time through litigation could possibly be moved into that position. Five is pretty hard for us to overcome. This decision here could be just catastrophic to Texas if it went against Alabama because Texas could be in the same boat. As Texas goes so goes the nation because Texas is so big. It once was its own country and it's elevated and morphed into pretty much being its own country again. We do not have provisions in our options as a Republican Party to be able to function as a competitive party if Texas were to succumb to the Democrats in anyway. House, Senate, Governorship…you name it." 

Jason Torchinsky, a partner with Holtzman Vogel in Washington, D.C. who specializes in election law, told 1819 News, "Some of the issues that Alabama is raising are ones that the U.S. Supreme Court hasn't addressed." 

"Alabama when they appealed to the Supreme Court last time didn't really make the case for how they win under the existing Gingles because they were asking the court to re-do the Gingles," Torchinsky said. "I think if Alabama goes to the Supreme Court on appeal, after making a better case for why they win under existing Gingles factors in front of the three-judge panel, they may find a very different reception at the Supreme Court than they got last time."

Thornburg v. Gingles was a U.S. Supreme Court decision that established three types of criteria for proving racial vote dilution by a plaintiff:

  1. The racial or language minority group "sufficiently large and geographically compact to constitute a majority in a single-member district"

  2. The minority group is "politically cohesive" (meaning its members tend to vote similarly); and

  3. The "majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate

The case will likely return to the Supreme Court regardless of what the three-judge panel decides in August.

"This was just an affirmance of a preliminary injunction," Torchinsky said. "There's been no trial yet. The state hasn't been able to put on its full case. I think after a trial I'm not sure the outcome would be the same so I think Alabama is positioning themselves to go back to the Supreme Court. I think a decision that didn't require Alabama to ultimately adopt a second majority-black district would be more of a status quo opinion. If you follow the theory of the plaintiffs, there's a whole lot of states that are going to have to draw not only new majority-minority districts but super proportional majority-minority districts which the court has said over and over again it doesn't want or require. This is the same court that just struck down racial preferences in higher education but for now in voting and redistricting requires explicit use of race. There's a disconnect from the court that we're hearing right now between Allen and Students for Fair Admissions that eventually the court is going to have to try to reconcile."

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