Alabama Blocked from Using Map ‘Tainted By Intentional Race-Based Discrimination’

A panel of lower court judges issued a preliminary injunction Tuesday blocking Alabama from using a 2023 map it had previously found to be unconstitutional.

“Ultimately, we cannot see our way clear to requiring Alabamians to cast their
votes in the 2026 elections under a districting plan tainted by intentional race-based
discrimination,” the judges wrote.

The Supreme Court had previously lifted a separate injunction on this map, freeing Alabama up to try to use it for the midterms. It only includes one Black-majority district. Alabama will likely go back to the high court to try to undo Tuesday’s order. 

While Justice Samuel Alito insisted in Callais, the recent ruling that all but killed the Voting Rights Act (VRA), that this Alabama case would not be affected, the Court immediately agreed to Alabama’s request to send the map back down for further consideration. The state is trying to jam through the old map before the midterms rather than use its current, court-drawn one, which has two Black-majority districts. 

“The Legislature well knew that a plan without an additional Black-opportunity district would dilute Black Alabamians’ opportunity to participate in the political process, and it intentionally enacted that very plan,” the ruling said. 

A still unresolved question lingers over the Alabama case: whether the Supreme Court will still accept challenges to racial gerrymanders that violate the Equal Protection Clause. That question was not addressed in Callais, though the Roberts Court has shown a prodigious hostility to voting rights in most other contexts. The Alabama panel wrote that in addition to the constitutional violation, the old Alabama map also violates Section 2 of the VRA even under Callais’ new, seemingly impossible-to-meet standards. If the Supreme Court considers the case on the merits, it’ll be a telling moment indicating whether the Alito-led majority will ever let a vote dilution challenge under the newly winnowed VRA succeed.

The judges also invoked the Purcell principle, a hazy prohibition on federal courts intervening in voting law cases on the eve of elections, which the Supreme Court has used inconsistently and nearly always to the benefit of the Republican Party.

“Requiring the use of the Special Master Plan will forestall an expensive, aggressive, and perhaps logistically impossible voter reassignment effort,” they wrote. “We take extremely seriously the Supreme Court’s command that federal district courts ordinarily should not  intervene on the eve of an election, for risk of causing administrative challenges and confusion. But the record here is clear: enjoining the unconstitutional 2023 Plan will improve the administrative situation in Alabama, not worsen it.” 

As the judges recount the case’s long history, they reminded readers that at the time that it first found the map to both violate the VRA and the Constitution (and was reaffirmed by the Supreme Court), the Alabama legislature refused to add another Black-majority district, in violation of court orders.  They added that they are still not aware of any other case where a legislature demonstrated an “admitted and strategic refusal to provide the required remedy.”

Alabama, trying a spin on Louisiana’s successful argument in Callais, argued that obeying the court and drawing an additional Black-majority district during the initial proceedings would have required them to adopt an unconstitutional racial gerrymander. That is, the correction to the initial map, the redraw that would increase illegally suppressed Black voting power, is the real discrimination. The panel responded that the Supreme Court would not have affirmed its first preliminary injunction if by directing the legislature to draw another Black-majority district, it was demanding something unconstitutional. 

“Alabama cannot use Callais to legitimize its pre-Callais decision to double down on the discriminatory vote dilution that we and the Supreme Court found,” it wrote.

This case, if it’s fully considered by the Supreme Court, will also test whether the right-wing majority will ever let a VRA race-dilution case succeed. The lower-court panel wrote that this case manages to fulfill Callais’ incredibly difficult standards: that there is proof of legislators’ intent to racially discriminate, and that expert testimony showed that race drives voting in Alabama separately from politics. On the second showing, the judges cited expert testimony that many Black voters identify themselves as “evangelical conservatives,” but still vote for Democrats because they see them as better on racial issues. 

“A clearer test for disentangling race from politics could hardly be asked for — if party politics drove voting patterns in Alabama, it is unclear why Black voters don’t support the party that aligns more closely with their values,” they wrote.

Given the intensely compressed timeline, the Supreme Court will likely be the final arbiter on whether Alabama can use its racially discriminatory map in the midterms. And given its penchant for silently using the shadow docket and Purcell principle to at least temporarily block lower courts’ attempts to implement legal and constitutional maps, the Court may not even explain its thinking before the election.

If, in a surprise, it does uphold the lower court, it’ll be a sign that either a) Equal Protection challenges of racial gerrymanders are still fair game or b) at least some conservatives will begrudgingly allow a sporadic challenge or two to succeed under Section 2 of the VRA.

Read the ruling here: