State lawmakers refuse to comply with a Supreme Court gerrymandering decision. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning The Briefing over to my colleague Michael Li, senior counsel in the Brennan Center’s Democracy Program. He explains the redistricting mess in Alabama, where the state legislature is openly defying the Supreme Court’s recent ruling on the Voting Rights Act.

—Michael Waldman

Welcome to Massive Resistance, version 2023.

As regular readers of this newsletter will know, Black voters in Alabama won a major victory at the U.S. Supreme Court in June. The high court ruled that Republican lawmakers violated the Voting Rights Act when they redrew the state’s congressional map after the 2020 census and failed to create a second Black district.

The ruling was sweet — in recent years, most voting rights cases at the Supreme Court have not gone well for advocates. This summer, in fact, is the 10th anniversary of the Court’s infamous decision in Shelby County v. Holder

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, which gutted an important provision of the Voting Rights Act that subjected states with a history of discrimination to extra scrutiny

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when adopting new redistricting plans or changing their election laws. With that track record, most observers were preparing for the worst as a decision in the Alabama case drew near.

Instead, Chief Justice John Roberts’s 5–4 opinion

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not only affirmed the lower court’s decision against Alabama but did so with vigor, strongly confirming the Court’s earlier precedents in the area.

If you stopped watching there, you might be forgiven for thinking that Alabama, thoroughly chastened, would have quickly gone about redrawing its congressional map to add a second district “in which Black voters either comprise a voting-age majority or something quite close to it” (to quote from the trial court’s opinion

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about what is needed to fix the map).

But no. Rather, in a move reminiscent of the state’s open defiance of federal court rulings in the 1960s ordering desegregation, the Alabama legislature passed a map with one Black majority district and a second district — supposedly fixing the problems found by the Court — in which Black voters constitute merely 40 percent of the population. The new map was speedily signed into law by Gov. Kay Ivey (R), who said in a statement

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that the legislature knew “our state, our people and our districts better than the federal courts or activist groups.”

Well, spoiler alert: In a state where voting is as starkly racially polarized as Alabama, a district where only 40 percent of voters are Black will elect the white community’s preferred Republican candidate time and time again. (Fun bonus fact: Alabama’s Solicitor General Edmund LaCour, who is representing the state in court in litigation over the map, is apparently moonlighting

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as the state’s map drawer.)

Last week, the lower court overseeing the Alabama case held a hearing to decide whether to approve the state’s new map or order a court-appointed special master to redraw it. Another round of appeals to the Supreme Court is all but inevitable.

And the flouting of courts isn’t just happening in Alabama. In Louisiana, where a federal court similarly ruled that the state needs to create an additional Black congressional district, lawmakers are taking steps to avoid redrawing the map by relitigating “concerns” about the constitutionality of the court’s ruling.

So what’s Alabama’s (and Louisiana’s) endgame?

Part of it is politics. With control of the U.S. House on the line in 2024, Republicans are fighting for every last gerrymandered seat. House Speaker Kevin McCarthy is reported

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to have personally called Alabama lawmakers, urging them not to pass a legally compliant map. It also has become clear that Republican elected officials and operatives aren’t giving up on attacking the Voting Rights Act or on their vision of a “color-blind Constitution.”

Ten years ago in Shelby County, Chief Justice Roberts wrote, “Things have changed in the South.” In many ways, they have. But, sadly, Alabama and Louisiana illustrate some of the ways they haven’t.





A Remarkable Voting Rights Victory

Earlier this month, a federal appeals court struck down Mississippi’s lifetime voting ban for people with felony convictions, ruling that the law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The remarkable decision, which was partly based on the growing national trend against permanent disenfranchisement, will restore voting rights to tens of thousands of people. It’s “a powerful example of how litigation and out-of-court advocacy can be complementary tools for restoring voting rights,” Patrick Berry writes. Read more

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Territorial Courts and Constitutions, Explained

U.S. territories are remnants of colonization in the 19th and 20th centuries, leading to an unusual set of legal systems that shares surprising similarities with state systems. A new Brennan Center explainer provides an overview of the unique courts and constitutions of the five inhabited U.S. territories and the rights of the more than 3.5 million people that reside in them. READ MORE

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New Evidence of Judicial Bias — and What to Do About It

A new book spotlights a disturbing flaw in our judicial system: elected state judges’ decision-making is increasingly being influenced by campaign money. In particular, sitting judges who need to win reelection face pressure to favor their donors’ preferences, which undermines their impartiality. Northwestern law professor Michael S. Kang, coauthor of the book, writes in State Court Report that there are ways to mitigate the impact of money on judges, without resorting to the extreme option of abolishing judicial elections altogether. READ MORE

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Coming Up

VIRTUAL EVENT — U.S. v. Trump: The Big Lie on Trial

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Wednesday, August 23, 3–4 p.m. ET



Something larger than Trump will be on trial in Washington, D.C., and Georgia — the Big Lie of a “stolen” election. Trump didn’t act alone. A web of pundits, elected officials, and media outlets propelled misinformation and baseless conspiracy theories. They stoked distrust in our electoral system, instigating an insurrection. The indictments will echo through American democracy for generations. Join us to hear Brennan Center experts and MSNBC legal analyst Andrew Weissmann discuss the cases and their implications. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Michael German on violent extremist threats // ASSOCIATED PRESS

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Lawrence Norden on threats to election officials // BBC

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Wendy Weiser on the attacks on mail voting // ROLL CALL

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Joanna Zdanys on proposed changes to New York’s public campaign finance system // SPECTRUM NEWS

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Feedback on this newsletter? Email us at [email protected]

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