(Reuters) – The U.S. Supreme Court could be facing a moment of truth as to whether it is viewed as a neutral check on political power or a partisan institution that mostly enables conservative policies.
Last Friday, Alabama’s Republican-controlled legislature passed a new congressional district map that appears to openly defy an order issued by the Supreme Court just six weeks ago.
The justices on June 8 affirmed a decision by a lower court panel holding that Alabama’s previous map likely discriminated against Black voters.
Black voters constitute a majority in just one of Alabama’s seven congressional districts, although they account for about 27% of the state’s population, according to U.S. Census Bureau data. Voting in the state has been starkly racially polarized.
The district court judges said in their January 2022 opinion that the “record before us has not only once, but twice, established that the Plan substantially likely” discriminates against Black voters.
The justices affirmed the lower court last month, ordering lawmakers to redraw the map to include either an additional majority-Black district or an additional district where Black voters have a more equitable opportunity at the ballot box.
Instead, Alabama Republicans on July 21 passed a map that includes an additional district that doesn’t come close to a Black majority, and actually reduced the Black voting-age population in the lone existing Black-majority district.
Black voters now constitute a slim 50.65% majority in District 7, lowered from 55.6%; while the new District 2 is only 39.93% Black, according to the state’s submissions in the suit.
Democrats have said a Black population around 40% could have an opportunity to elect their preferred candidates in urban counties – where white voters are more likely to support the same candidates as minority groups – but not in the rural areas that make up the 2nd District, according to a July 19 report in the Alabama Reflector, a nonprofit news organization.
The district court will consider objections from the plaintiffs, including the Alabama State Conference of the NAACP, on Aug. 14. Alabama can appeal to the justices, again, if the lower court upholds its previous findings.
Redistricting experts, civil rights advocates and legal observers seem to agree that Alabama flouted the Supreme Court’s orders. Kareem Crayton, senior director for the voting program at New York University’s Brennan Center for Justice, told me the move seems transgressive.
“A generous read would be that they were mistaken or are just not good at reading the law,” but it seems more likely Republicans are “intentionally trying not to comply or simply defying” the Supreme Court, Crayton said.
Leaders in the Alabama House and Senate didn’t respond to requests for comment. Dorman Walker, an attorney representing the redistricting committee, told me he couldn’t discuss active litigation.
Alabama Republicans are hanging their hats, at least ostensibly, on a five-word clause and another key word in the district court’s 225-page decision that threw out the previous map: The remedial plan must include two districts where Black voters are either a majority or “something quite close to it,” that gives them an “opportunity” to elect candidates of their choice, the lower court said in 2022.
Lawmakers spent most of the recent redistricting sessions arguing over what the judges meant by “quite close,” and “opportunity.”
“The question is, what is the opportunity there?” Republican Senator Steve Livingston, co-chair of the redistricting committee, said after the latest map was approved, according to the Alabama Reflector report.
To my mind, the concept of “opportunity” may be truly nebulous in other contexts, but the district court’s meticulous opinion made clear what it meant in this case.
“When we use the phrase ‘Black-opportunity,’ we mean a district in which a ‘meaningful number’ of non-Black voters often ‘join[] a politically cohesive Black community to elect’ the Black-preferred candidate,” the court wrote in its 2022 opinion.
Moreover, the court’s “quite close” language specifically cited sections in the plaintiffs’ submissions that elaborate on the concept of a “realistic opportunity” to elect: It cannot exist where racial polarization means Black-preferred candidates usually lose, for example.
Democrats and redistricting experts have said the notion that 39.3% (compared with a white population that apparently makes up 50.86% of the district) approaches a majority or delivers realistic opportunities is flabbergasting.
Crayton said that Alabama lawmakers appear to be “testing the Supreme Court’s resolve.”
Indeed, Democrats have said that a second Supreme Court review is precisely the goal – and Republicans leading the effort have admitted as much.
“The Supreme Court ruling was 5-4, so there’s just one judge that needed to see something different,” Alabama House Speaker Nathaniel Ledbetter said after the map’s passage. Ledbetter added that a Republican U.S. Senator who called him during redistricting had expressed “surprise” that the justices ruled against Alabama in June, “given the court’s conservative tilt,” NBC News reported July 21.
Ledbetter didn’t respond to my questions.
That background could potentially put the Supreme Court in a position where it needs to defend its own authority, in effect.
It also means that a ruling for Alabama could be viewed by many as a sort of final confirmation that the court is, or has become, a partisan institution.
The Supreme Court’s public information office did not immediately respond to requests for comment.
After all, it was the conservative justices highly unusual intervention in the suit in February 2022 that put on hold the lower court’s injunction ordering the state’s Republican-led legislature to redraw the map. That original map, favoring Republicans, was used in the 2022 midterm elections.
And now, Alabama is circling back with a map that arguably dilutes Black residents’ voting power even worse.
Moreover, as it stands, a majority of Americans — 53% — now think the justices rule mainly based on their politics, following a spate of major rulings that enabled conservative policy-making on affirmative action, LGBTQ rights and more, according to a recent poll. And the court is viewed favorably by just 44% of Americans, including just 28% of Democrats, according to a June Reuters/Ipsos poll.
For the sake of its own plummeting reputation, the court simply cannot countenance Alabama Republicans’ apparent intransigence.
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