SCOTUS readies for debate on ‘racial gerrymandering’ in Alabama, decision could have far-reaching implications

Kicking off its second day of oral arguments for the new term, the Supreme Court was slated to hear a case on Alabama’s new congressional map wherein both sides have alleged racial discrimination is at play.

Following the 2020 census, each state was tasked with the constitutionally obligated mandate to redraw their congressional district (CD) maps based on how population densities had changed over the decade since the prior census. Often fraught with legal challenges, the case of Merrill v. Milligan has pitted Alabama’s Secretary of State John Merrill against the executive director of Alabama Forward, Evan Milligan, chiefly to determine how Section 2 of the Voting Rights Act is to be interpreted for the purpose of gerrymandering.

The plaintiffs, comprised of Milligan, a group of Alabama voters, the Greater Birmingham Ministries and the NAACP have representation with the ACLU and had succeeded in the lower court with their challenge that read in part, “In the twentieth century, Black Alabamians have never elected a congressional representative in any district other than the packed majority-Black CD 7. And CD 7 has only been a majority-Black district since 1992. As a result, Black Alabamians have the opportunity to elect a candidate of choice in only 14% of the congressional delegation…despite making up over 27% of Alabama’s voting age population.”

That district court ruling, which included two judges appointed by former President Donald Trump, was challenged by the state and the Supreme Court temporarily allowed the new maps to be used as proposed for the primary and 2022 midterms with the condition of oral arguments being presented on Oct. 4.

As Section 2 prohibits procedures that discriminate on the basis of race, Milligan has contended that there ought to be at least a second of the seven congressional districts drawn up to better represent the black population of Alabama. However, the state has argued doing so would be a violation of the 14th and 15th Amendments because of “race-based sorting.”

Justice Clarence Thomas has previously opined on Section 2 and suggested it, “involved the federal courts, and indeed the Nation, in the enterprise of systematically dividing the country into electoral districts along racial lines–an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of a system of political apartheid.”

Weighing in on the matter, Adam White, a senior fellow with the American Enterprise Institute, told Fox News Digital, “If the Supreme Court overturns the lower court’s decisions, that will reduce a lot of uncertainty around judicial review of districting because the people who want to challenge district lines will have to show much clearer evidence of discriminatory intent or effect. So, judicial review will be much simpler.”

Meanwhile, America First Legal had submitted an amicus brief in favor of Alabama and said the justices should go further than merely reverse the lower court’s decision. “This Court should do more than reverse. It should end our Nation’s decades-long unconstitutional experiment with court-mandated racial segregation in redistricting.”

While ACLU senior staff attorney and co-counsel for Milligan, Davin Rosborough, has contended, “These new maps weaponize race to undermine the political power of communities of color in Alabama. These maps violate the Constitution and run contrary to basic principles of fairness and representative democracy,” it’s worth noting that the effort looks to be geared toward acquiring an additional Democratically controlled seat in the House of Representatives.

At only one time over the course of the last 20 years has there been more than one Democratic representative serving in the House from the state of Alabama and that came with the election of former Rep. Bobby Bright when he won Alabama’s CD 2 in 2008 by less than 2,000 votes and served a single term before losing his reelection bid to now-Rep. Martha Roby (R).

Bright switched to the Republican Party after his loss but failed a 2018 primary challenge against Roby in an effort to reclaim the seat.

Rosborough contended if the lower court’s decision were overturned, “The consequences would be drastic. They’re essentially asking us to reinstate a requirement to prove that people drawing the maps acted without racial animus and discriminatory intent and basically turn this into what they call a race-neutral state…but putting on blindfolds to race.”

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Kevin Haggerty

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