This is Bloomberg Law with June Brusso from Bloomberg Radio.
The Supreme Court and a panel of federal judges both made it clear to Alabama, rejecting a Republican drawn congressional map and requiring two majority black districts in the state where twenty seven percent of the residents are black. But there's only one black district out of seven. But when Alabama lawmakers passed a new map in July, they ignored both courts and created a map that still had only one black district. Democratic and Republican state lawmakers see the
issue differently. Black voters should have the opportunity to pick the candidate of their choice.
I don't think there's any malice or anything like that.
And now the same panel of judges have rejected the newly drawn map and are taking the map job away from the state legislature and putting it in the hands of a special master. Joining me is elections law expert Richard Brefald, a professor at Columbia Law School. Let's start with what the Supreme Court ruled in June.
So, in June, the Supreme Court took on a case that had been initially decided by a lower court which challenged Alabama's current congressional redistricting. As you noted, Alabama has seven districts. State is approximately twenty seven percent black. There's only one black majority district in the state. The lower court found that it was easy to create a second black majority district that would be compact and that was
reasonably configured. That's the court toward, and that there was a lot of racially polarized voting in Alabama, and that there was a history of discrimination on really a gap between black and white voters, so that the current system of only one black majority district violated the voting Right Teck.
There was a five to four vote by the Court affirming the finding by the district court that there was a violation of the voting right Teck, and the Supreme Court sent it back to the district court for remedy. The district court, initially, as normally the pattern, said the legislature should come up with a new map, the assumption with the legislature would create a second black majority district.
During the litigation, the plaintiffs had come up with a couple of alternative maps that were pretty similar to each other, showing just how you could do this. The legislature, however,
didn't do that. Instead, they basically went back. They actually reduced the black population of the one black majority district and they created a second district which did not come close to a black majority, was fewer than forty percent, and based on the degree of racially polarized voting, was doubtful that that would work as what sometimes called a minority opportunity district, a black candidate whatever a serious chance
of winning. There was then a hearing before the same three judge court that had issued the original decision, and other three judge courtes the other day said no, Alabama's a new plan does not remedy the violation. It remains unlawful, and we're throwing it out and we're going to hire a special master. This was us to come up with, I think, couple of options which would be presented to us with the idea that we would have a decision
by late November early October. Map that is not the one that the legislature did, but one we're going to use a special master to create.
The language of the decision was harsh, criticizing state officials. The three judge panel wrote that they were deeply troubled. They weren't aware of any other case in which the state legislature refused to follow an order like this. We have now said twice that this Voting Rights Act case is not close. Do you think with that harsh language they were trying to get their message across.
Yes, I mean I think they felt this was just a blatant disregard of not only this court decision, but of the Supreme Court's decision affirming this Court's decision. I mean they were sending that message that, no, you were defying that. The attitude of the legislature and the governor who signed it with defiant, that it was defying both the district court's order and the Supreme Court decision. And so they wanted to make sure that that message got through.
In a statement, the Alabama Attorney General said, we strongly believe the legislature's map complies with the Voting Rights Act and the recent decision of the Supreme Court. And during oral arguments, the state solicitor general said, quote, District two is as close as you're going to get to a second majority black district without violating the Supreme Court's decision. What were their arguments in support of this map.
Their argument is that requiring a second black majority district basically is a kind of mandated proportional representation, which, in their view would be illegal and maybe an unconstitutional They were relying very heavily on the Supreme Court's recent decision dealing with the lawsuit which struck down a Harvard's use of race in terms of admitting students and unc and they felt that requiring a second black majority district was similar.
It's a kind of a nonconstitutional quota. But the lower court said, and what the Supreme Court it said is no, we're not mandating proportional representation. We found that the kind of map that you drew before was a denial of the equal opportunity of black voters to have representation in
Congress from Alabama. And your response simply maintains that. So, I mean, it is kind of walking down the line between saying that this is a mandated proportionality and that it's a response it's a remedy to a proven case of discrimination. The Alabama legislature, I think, is really relying on the Harvard Affirmative Action case, and the Supreme Court, of course decided the case with the Alabama congressional map just days before the Harvard decision, and the Supreme Court
obviously thinks that they're both consistent. So the district court basically said the same thing. Nobody here is mandating proportionality. We're responding to and remedying proven violation.
So would they need to have two districts that are fifty percent black or more?
No? Now, I think basically the idea is something known as a district that takes performing district, which could be one in which it's a significant enough why crossover voting could be satisfied by under fifty percent black majority, although given the high level of racially polarized voting in Alabama, probably we have to be pretty close to fifty percent, if not more.
Why did they reduce not by much, but why did they reduce the black voters in the one district?
I think they effect to move them to the other to bring up the black share of the other district, which I think they got up to about thirty nine percent.
So Alabama says it's going to appeal to the Supreme Court, Right are they thinking? Do you think they're thinking that? Considering that the last vote was something of a surprise because Chief Justice John Roberts and Justice Brett Kavanaugh sided with the liberals. Do you think that they feel, well, maybe we can convince those justices the second time around.
I think they're going to try and argue that this is a portional representation. And the Supreme Court has said the law doesn't require proportional representation. If proportion representation happened, that's not a problem, but it's not a mandate. And I think they're going to try and argue that that's
what this is. I think, but the problem they're going to face the Supreme Court infect just decided this case, and I do wonder whether the Supreme Court is in a mood that to take something that they have narrowly divided.
And Justice Cavana did make a point of writing separately to say why he thought that the old map was unlawful, but recognizing the difficult drown the line between what's called predominance, that race is something that legation can take into accounter that a remedial court can take into account and proportionality. But I do think one question is the Supreme Court really willing to countenance such explicit defiance of a Supreme Court decision.
This litigation is being watched in Washington, d C. By both sides. Have recent rulings over distarching maps given Democrats more of a boost heading into the twenty twenty four elections.
Well, it's hard to say, I mean this one is likely to produce an additional Democratic vote. Now Obama have not been a lot of decisions, and often what the Court has done is actually stopped challenges. Even in this case, the lower court had found that the Alabama plan from twenty twenty one was unlawful, but the Supreme Court stayed that decision in order to be heard by the Supreme Court, which meant that the unlawful plan was actually used last year.
So there are a couple of other pending cases. There's one I think coming through Louisiana which raises issue similar to the one in Alabama. And there's a case the Supreme Court has agreed to hear this fall dealing with a district in South Carolina. Again, all these on claims of racial discrimination in how they're being drawn, but maybe just a significant of the case of the Supreme Court
has not heard. For example, the Supreme Court decisions several years back not to take on partisan jerrymandering, and.
These other redistricting cases that come before the Supreme Court, will the analysis be the same as it was in the Alabama case.
Well, I think with the Alabama case, the five to four vote and Supreme Court indicates is that the Court basically is willing to stick with the standard adopted in the nineteen eighties, which says that if plaintiffs can show that you could created another and I think they use the word reasonably configure district, not one with odd shapes
and odd hooks and odd tentacles recently configure district. That there is political cohesion among the plaintiffs Black plaintiffs or Latino plaintiffs, and that there's a lot of racially polarized voting, and that there are other factors the history of discrimination or other features in the community. The totality of the circumstances that show that the current map makes it hard for black voters or Latino voters to have an equal opportunity to elect candidates of their choice, they can strike
down a map and require that it be changed. And the Court that doctrine goes back to the nineteen eighties. There was some thought that the Court in recent years has been less empathetic to the Voting Rights Act and that they might want to change that require maybe more proof of intentional discrimination, or otherwise change the law. But the Court that was probably the most significant feature of the discrom Court's decision last year is to basically say,
we are sticking with the doctrine. Even Justice Kavanaugh, who wrote separately, said yes, I agree, this is the doctrine. We're sticking with the doctrine and what Alabama did violated that.
And even the Chief Justice joined with the liberals in that case, and he was the one that basically led the march against the Voting Rights Act. In the Shelby County.
Case, Justice fro the opinion that struck down the preclearance, but this is one where he was persuaded that the plaintiffs had made a case, and he was persuaded that the lower court, which is a three judge panel, lower court sitting three judge panels when there is a challenge to a redistricting map which consisted of a Court of Appeals judge and two district judges. And it's worth pointing out that the two district judges were appointed by President Trump.
They wrote like a two hundred page opinion. They said, yes, we are persuaded that you can draw a reasonably configured map. It does respect traditional districting lines like compactness and respect for county lines and communities of interest. There is racially
polarized voting, and there are other other circumstances. And he basically said, the plaintiffs and really the three judge panel make the case that under existing doctrine, the map is illegal, and maybe just as important, we see no reason to reopen existing doctrine if the existing approach of the voting right tact.
Let's turn to Florida now, where a state court, a trial judge ruled that Florida Governor Ron Descantis violated the state constitution and discriminated against black voters when he overhauled a northern congressional district previously held by a black Democrat.
So Florida also did like everybody else did, redistricting in twenty twenty one, and traditionally or for some time now, Florida has had a district across the northern border of the state. We're sort of going from the Atlantic, just on the border that goes below Georgia, kind of a long, skinny district that particularly kind of links up Jacksonville and Tallahassee.
That district was created, I think sometime in the twenty ten and it has not been a black majority, but it's been a so called black opportunity district about forty five percent black. It was consistently electing a black representative, often with about sixty plus percent of the vote, and the legislature in Georgia was originally inclined to keep it.
In twenty twenty one when they redistricted, the governor said, now I want a different map, and in fact basically had that district broken up into three districts or four districts, and all of which had more substantial white majorities. The black share in those districts ranged anywhere from about fifteen percent or about thirty percent. That map was adopted, and the incumbent black representativeho was a Democrat loss to seat
that has been challenged under the Florida constitution. It's a state case, and the Florida voters about fifteen years ago had adopted a constitutional amendment which really limits gerrymandering, and one provision of it says that a map should not be adopted, which diminishes the opportunity of voters to elect their representatives on basis of race. So it's not just a pure vote dilution argument. Is it an improper diminishment of the opportunity of black voters to elect? And the
Florida Court said yes, obviously. The court so it's very clear that this violates the anti diminishment provision of the Florida Constitution. Now, I think it's only a trial court, so there'll be an appeal like this to the Florida Supreme Court. But at the moment, they have held that when the legislature, at the governor's direction, broke up that district into multiple districts, that that violated the Florida State Constitution.
There's a trial going on over Republican dram maps in Georgia, a similar lawsuit brought by civil rights organizations is taking place in Tennessee, and there are others coming up. Will all these redistricting cases end up at the Supreme.
Court, I mean not necessarily. I mean the Supreme Court may have concluded that they've done this. They may all be appealed to the Supreme Court. Is not clear that the Supreme Court will take them on on the merits or in substance, and may just conclude that these are depending on what's exactly going on behind them. They may say it's very similar to the case we just in in Alabama. But you're right. There is a case that began in Atlanta earlier this week. There's a case that
I think that's happening in Louisiana. I think a trial is scheduled for a little later this fall. They have taken a case from South Carolina where the lower court actually decided that case prior to this year's Supreme Court decision, and it goes off on a slightly different issue about whether or not the jerrymanderin that case was racial or partisan.
But yeah, in each one of them, the current plan benefits Republicans, and if the plaintiffs win, in addition to benefiting blackboters, is likely to benefit Democrats.
There's a lot to watch. Thanks so much, rich That's Professor Richard Brafault of Columbia Law School, And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www Dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm Junie Grosso and you're listening to Bloomberg