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Alabama recently obtained approval from the Supreme Court to implement a redistricting plan that has been challenged as racial gerrymandering.

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The state was ordered by a lower court to redraw its congressional map last month because the new one violates the Voting Rights Act.

In a 5-4 decision, the Supreme Court has put the lower court’s decision on hold, effectively allowing Alabama to proceed with its preferred map in time for the primary elections in May.

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The redistricting plan for Alabama’s seven House of Representative seats was created after the 2020 census. The plan includes one majority-Black district as part of its seven districts.

In a federal suit, registered voters, a multifaith community organization, the Alabama chapter of the NAACP, and Alabama’s NAACP filed to challenge the map.

According to them, the state had illegally concentrated large numbers of black voters in one district while dispersing smaller groups of Black voters across several districts.

Its effect is to limit the number of districts in which black voters can vote for candidates of their choice, according to challengers.

The state must draw a new map after a three-judge district court – including two district judges appointed by the Trump administration and a Clinton administration appellate court judge – ordered the state to do so on Jan. 24.

In its decision, the court ruled that the plan probably violated Section 2 of the Voting Rights Act, which bans racial discrimination in voting policies.

A majority-Black district should be in two districts, not just one, according to the court, and it gave the legislature two weeks to do so.

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The court also warned that if the legislature was unable to complete the job by then, it would hire a professional to draw a new and improved map.

In a ruling on Jan. 27, the three-judge panel rejected the state’s request to delay its decision while it appealed.

The court called the state’s request “effectively an unsupported motion for reconsideration.”

While describing the case as a “straightforward Section Two case,” it emphasized that the court’s decision to grant a preliminary injunction “rests on an extremely robust body of evidence” gathered through a seven-day hearing involving testimony from 17 witnesses and more than 1,000 documents.

In deciding whether the challengers are “substantially likely to succeed on the merits of their Section Two claims” is not, the court determined, “a close one.”

On the next day, the state petitioned the Supreme Court to freeze the district court’s order while it appealed. According to a court order issued on Monday, the dispute will be heard by the court sometime in the fall.

Among the justices who joined Kagan in writing a 12-page dissent were Stephen Breyer and Sonia Sotomayor.

Kagan stressed that usually, a litigant asks the Supreme Court to freeze a lower court order because it believes the lower court violated the law. Here, she argued, “accepting Alabama’s contentions would rewrite decades of this Court’s precedents about Section 2 of the Voting Rights Act.”

She stressed that the court should make these changes after a full briefing and oral argument, not on the so-called “shadow docket.”

In Kagan’s judgment, the district court correctly applied the prevailing law. The court’s decision to put the ruling on hold, she said, “forces black Alabamians to suffer what under that law is clear vote dilution.”

Also, Chief Justice John Roberts disagreed with the court’s decision to set aside the lower court’s order, but he did not join Kagan’s dissent.

Roberts noted, instead, that jurists are still unclear about what they must show for a claim of vote dilution.

He wrote that he would hear oral argument in the dispute over the map, but he would not stay the order of the district court since it is consistent with current voting-rights laws.

Accordingly, he concluded that the district court’s analysis should guide the election of 2022, while “successive elections will be determined by” the Supreme Court’s decision.

I respectfully dissent from the stays granted in these cases because, in my view, the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction. The governing standard for vote dilution claims under section 2 of the Voting Rights Act is set forth in Thornburg v. Gingles, 478 U. S. 30 (1986), which requires “the minority group . . . to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Id., at 50. The District Court reviewed the submissions of the plaintiffs’ experts and explained at length the factbound bases for its conclusion that the plaintiffs had made that showing. See post, at 3–4 (KAGAN, J., dissenting).

Brett Kavanaugh joined Justice Samuel Alito in his concurring opinion in response to Kagan’s dissent. Kavanaugh said the Monday order did not change voting rights laws. The district court’s order will simply be stayed pending the Supreme Court’s review, he countered.

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Kavanaugh addressed the issue of freezing the district court’s order as well as the election-law doctrine known as Purcell’s principle. This principle holds that federal courts should not interfere with state election regulations shortly before an election.

“Running elections statewide is extraordinarily complicated and difficult,” Kavanaugh explained. He argued that the district court’s order, “would require heroic efforts by” election officials “in the next few weeks – and even heroic efforts likely would not be enough to avoid chaos and confusion.”

I concur in the Court’s stay of the District Court’s injunction. I write separately to explain my vote, and to briefly respond to the principal dissent. Post, p. ___ (opinion of KAGAN, J.). To begin with, the principal dissent is wrong to claim that the Court’s stay order makes any new law regarding the Voting Rights Act. The stay order does not make or signal any change to voting rights law. The stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits. The stay order follows this Court’s election-law precedents, which establish (i) that federal district courts ordinarily should not enjoin state election laws in the period close to an election, and (ii) that federal appellate courts should stay injunctions when, as here, lower federal courts contravene that principle. See, e.g., Purcell v. Gonzalez, 549 U. S. 1 (2006) (per
curiam).

Kagan countered Kavanaugh’s argument that it was too late for Alabama to redraw its maps. She pointed out that the Alabama legislature enacted the current map in less than a week and could move swiftly again if it wants. As for the state’s primary, she explained, the primary is still four months away, whereas the general election is almost nine months away.