Will Alabama be allowed to defy the Supreme Court?

Alabama just adopted a new gerrymandered redistricting map that, in effect, told the Supreme Court to shove it.

In June, the court released a 5-4 decision instructing Alabama that, under the 1965 Voting Rights Act, the state must restore two Black majority congressional districts. The Alabama legislature’s 2021 map had only one.

On Friday, in abject defiance, the Alabama legislature adopted a new map that again included a single Black-majority congressional district. Alabama’s black population is 26%, and one black majority district out of seven is 14 percent.

As for flaunting her state’s defiance of the law, Alabama Gov. Kay Ivey added insult to injury when she tweeted, “The Legislature knows our state, our people, and our districts better than the federal courts …”

Such contempt for courts is in service of national GOP power. Alabama journalist Brian Lyman reported that House Speaker Kevin McCarthy had told state Rep. Brian Livingston, the map’s sponsor, “I’m interested in keeping my majority.” Meaning that the House GOP’s narrow, five-seat majority is at risk in 2024, and McCarthy can’t afford to lose a seat in Alabama to a second all-Black district.

The state has thrown a slow hanging curve ball down the middle of the plate if the Supreme Court has any interest in helping restore its legitimacy after repeated ethics crises and overturning Roe v. Wade. The justices ought to knock it out of the park.

They’ll have the opportunity. The citizens who brought the original 2021 lawsuit challenging Alabama’s map are renewing their legal battle.

The question will be whether the courts move the case fast enough to avoid deja vu all over again. Back on February 4, 2022, the Supreme Court temporarily kept Alabama’s map in place for the 2022 election. Justice Brett Kavanaugh cast the deciding vote in a 5-4 decision, reasoning that the 2022 election was too close to require the legislature to draw a new map, with early voting in the primary beginning in two months.

In her dissent, Justice Elena Kagan highlighted that the legislature had drawn the 2021 map in less than a week. She wrote that the majority decision was “a disservice to Black Alabamians who . . . have had their electoral power diminished—in violation of [the Voting Rights Act] this Court once knew to buttress all of American democracy.”

But a repetition of the 2021 ruling is not inevitable, particularly now with the record of a legislature ignoring a Supreme Court order and trampling the rule of law. A legal challenge today on the Alabama map enacted last Friday needn’t even move as fast as the expedited 2021 case. It took only three months to reach the Supreme Court and be decided. A Supreme Court order by late November could command that a new map be drawn by January or that Alabama use the 2020 map with two Black-majority districts on election day. A federal court hearing has been set for August 14 on the new map, and the hearing is before the same three-judge panel that condemned the first map.

History, they say, doesn’t repeat but it rhymes. In 1963, Alabama governor George Wallace also defied a court order — that one commanding the segregated University of Alabama to admit two Black students. Wallace stood down, however, when President John F. Kennedy federalized the Alabama National Guard and dispatched it to Tuscaloosa.

Of course, that kind of action is not appropriate in today’s situation. But Kennedy spoke to the nation about civil rights that same day, setting the stage for introducing his Civil Rights Act of 1963, enacted the following year.

In that speech, Kennedy said, “It ought to be possible for every American to enjoy the privileges of being American without regard to his race or his color.” Alabama today, in diluting the vote of Black Alabamians, is denying them the most basic right that being American confers. President Biden should channel Kennedy and tell the nation that Alabama’s denial of that right will not be tolerated.

Lawyers played a role upholding the law in 1963 and can do so again. As Wallace was vowing to resist a federal court order, Bernard Segal, a Philadelphia corporate attorney, organized 53 prominent peers to issue a much-publicized statement critical of Wallace.

Kennedy then asked Segal to organize the Lawyers’ Committee for Civil Rights. Later, Segal became president of the American Bar Association. Today’s ABA should do exactly what the still-vibrant Lawyers Committee did on Friday: Issue a statement blasting Alabama Republicans for their unlawful map. 

Too often, with racism, the more things change, the more they stay the same. It’s up to not only the Supreme Court but to all of us with a voice to help ensure that, this time, something changes in Alabama.

Dennis Aftergut is a former prosecutor and former Supreme Court advocate, currently of counsel to Lawyers Defending American Democracy (LDAD); Walter H. White, Jr. is a member of the Board of LDAD and a past chair of the American Bar Association Center for Human Rights.