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How Alabama hopes to get around the Voting Rights Act

The state is highlighting an opinion by Justice Kavanaugh and the Supreme Court’s rejection of affirmative action in higher education.


So, what’s Alabama’s plan for avoiding having to draw a second majority-Black congressional district?

With its new Supreme Court filing, we got a big, if unsurprising, hint that boils down to one word: Kavanaugh.

The state’s lawyers name-checked Justice Brett Kavanaugh 10 times in the emergency application, in which they’re trying to get the high court to halt a lower court’s order against the defiant state’s new voting map.

Last week, a three-judge district court panel said it was “disturbed” by Alabama’s behavior after its surprise 5-4 loss at the Supreme Court in June in Allen v. Milligan. The judges — two of whom were appointed by President Donald Trump — noted they weren’t aware “of any other case in which a state Legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.”

But Alabama is all in, taking the fight back to the high court and taking umbrage at the district court’s umbrage.

And that’s where Kavanaugh comes in — the state hopes. Though the Trump appointee joined the majority in upholding the Voting Rights Act in June, he wrote a separate concurrence that said, among other things, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” Alabama’s emergency application quotes part of that line three times.

Alabama wants a stay by Oct. 1, and the voting rights plaintiffs will first get to weigh in with their own filing by Sept. 19, so look for the court to rule later this month.

But Alabama is all in, taking the fight back to the high court and taking umbrage at the district court’s umbrage.

Notably, the state tries to harness the Supreme Court’s recent rejection of affirmative action in higher education in its attempt to avoid drawing a second majority-Black district. Indeed, Alabama weaves that ruling into Kavanaugh’s voting rights concurrence.

Just as the Supreme Court “held that ‘race-based’ affirmative action in education ‘at some point’ had to ‘end,’” Alabama’s legal team argued, quoting from the affirmative action ruling, “the same principle applies to affirmative action in districting.” (That legal team consists not only of lawyers from the Alabama Attorney General’s Office, but also lawyers from the firm that litigated the affirmative action case.)

It’s against that backdrop that Alabama asks the Supreme Court to halt the district court’s order, so that the state won’t have to use a “court-drawn, race-segregated plan.” By deeming a congressional map that complies with the Voting Rights Act “race-segregated,” Alabama apparently hopes the justices will embrace the colorblind ignorance that animated the affirmative action ruling, which a 6-3 Republican-appointed majority rendered just weeks after a bare majority held the state to the terms of the landmark voting legislation.

With the Supreme Court’s impending ruling on the emergency application, we may soon learn which version of the high court the state will get. The answer, as this new filing makes plain, may well come down to Kavanaugh.