Allen v. Milligan, an Alabama redistricting case that is now before the Supreme Court for the third time, is a face-palm, wrapped in a head-desk, wrapped in some of the most incompetent legislative draftsmanship that has ever been presented to the justices. If Alabama Republicans have any sense, they will fire all of their lawyers.
About a month ago, the Supreme Court decided Louisiana v. Callais, gutting the federal Voting Rights Act’s safeguards against legislative maps that lock voters of color out of power in the process. Callais effectively repealed a 1982 amendment to the VRA, which prohibited many state laws that have a negative impact of nonwhite voters, even if those laws were not drawn with racist intent.
After Callais, a plaintiff challenging a state’s legislative maps on racial grounds may only prevail “when the circumstances give rise to a strong inference that intentional discrimination occurred.”
As a practical matter, this is a very difficult bar for voting rights plaintiffs to overcome. Lawyers and judges are not mind readers. And state lawmakers normally aren’t foolish enough to state openly that they drew a particular map in a particular way because they wanted to maximize white power and minimize the voting power of nonwhite voters.
And yet, Alabama’s Republican-controlled legislature managed to enact congressional redistricting legislation that openly praises the European American character of much of the state.
Allen turns on congressional maps that the state enacted in a 2023 law, but which have never actually been used in an election. Much of the case turns on the law’s disparate treatment of two regions in the state: the Gulf Coast region of Alabama, and the state’s Black Belt.
While the Black Belt is actually named after the dark-colored soil in that region, it has a high African American population because many enslaved people were brought to the Black Belt prior to the Civil War. The Gulf Coast region, meanwhile, is predominantly white. As a lower court decision that struck down the 2023 maps explains, those maps keep “the Gulf Coast whole,” while simultaneously splitting the Black Belt in a way that shunts many of its Black voters into a majority-white district.
The mere fact that Alabama cracked up the Black Belt while keeping the Gulf Coast intact does not endanger its maps, at least under Callais. The decision is very favorable to gerrymandering, and permits states to draw maps that diminish Black representation so long as the state claims that it is doing so to dilute the votes of Democrats.
But here’s the rub: The 2023 law doesn’t just preserve the white-majority Gulf Coast region intact; it also praises the “shared culture” of that region which stems “from its French and Spanish colonial heritage.” France and Spain, of course, are European countries made up predominantly of white people.
The state legislature, in other words, didn’t just give the Gulf Coast more favorable treatment than it did the Black Belt. It explicitly referenced the Gulf Coast’s shared European culture when it did so. That sure gives rise to a strong inference that intentional discrimination occurred!
Will that be enough to persuade this Supreme Court to rule against Alabama’s maps? Who knows? The Court’s most recent gerrymandering decisions appear designed to permit states to draw whatever maps they want, without any federal judicial oversight whatsoever. And a decision in favor of Alabama’s 2023 maps would also benefit the Republican Party.
Six of the Supreme Court’s nine seats are held by Republicans.
But, even after Callais, one of the few things that states should not be allowed to do is draw maps for the explicit purpose of favoring European Americans, while simultaneously disfavoring African Americans. And yet Alabama’s maps may not be able to clear even this very low bar.
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