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Alabama is back at the Supreme Court, defending a discriminatory voting map that openly flouts court orders. And the state is being called out on it — but we don’t yet know how the justices will rule.
To recap, when Alabama lost a surprise 5-4 ruling on voting rights in June, the state GOP didn’t take the loss well. Instead of crafting a congressional map that would create a second majority-Black voting district in the state, Alabama Republicans have been trying to avoid complying with court orders that would lead them to that result. Or, perhaps, they’re hoping for new direction from a new high court majority just months later.
As I’ve explained, they’re likely banking on Justice Brett Kavanaugh’s help in that regard. That’s because the Donald Trump appointee didn’t just join Chief Justice John Roberts’ majority opinion in Allen v. Milligan, like the three Democratic appointees did. Instead, Kavanaugh cast the tie-breaking fifth vote by not only joining Roberts’ bottom line, but also authoring a separate concurrence that gives Alabama and other would-be voting-rights violators hope that he’ll go the other way the next time.
In that concurrence, Kavanaugh wrote that “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” and he added that the state’s lawyers “did not raise that temporal argument in this Court, and I therefore would not consider it at this time.”
It’s no mistake or surprise, then, that Alabama’s lawyers are leaning heavily on Kavanaugh as they try to get the justices to pause the latest lower-court ruling that chastised the state for its continued refusal to comply with the law. The state asked the Supreme Court to block that ruling by Oct. 1.
On Tuesday, the pro-voting side of the equation got to weigh in before the justices decide what to do next. Putting things bluntly, the challengers wrote that the Alabama Legislature “never even attempted” to comply with court orders to give Black Alabamians lawful voting opportunity after the Supreme Court ruling in June. The state can’t block the lower court ruling over the latest map that “openly defies the clear rulings” of the district court and the Supreme Court, the challengers wrote.
We should learn in the coming weeks whether a Supreme Court majority sees itself as defied — and, if so, what the justices do about it.