Alabama Attorney General Steve Marshall walks across the Supreme Court plaza following oral arguments in Merrill v. Milligan, an Alabama redistricting case that could have far-reaching effects on minority voting power across the United States, on Capitol Hill in Washington, Tuesday, Oct. 4, 2022. (AP Photo/Patrick Semansky)

Alabama continues to defy the Supreme Court and the rule of law.

In June, the Court ruled that Alabama likely violated Section 2 of the Voting Rights Act—which prohibits the dilution of minority voting strength—when it passed a redistricting map without ensuring that minority voters would enjoy sufficient representation. Black people comprise about 27 percent of the state’s population, yet only one of the seven congressional districts (14 percent) had a majority of individuals who identify as minorities.

The Court rejected Alabama’s radical request that it interpret the Voting Rights Act extremely narrowly. The state all but asked the Court to overturn decades of precedent and ignore race when determining if its map harms racial minorities. As Chief Justice John Roberts wrote for the majority, “The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our §2 jurisprudence anew.” The Court rejected Alabama’s arguments, finding that the state likely violated the Act. The Court sent the case back to the lower court for a remedy.

The lower court, implementing that ruling, said that Alabama must draw a map “that includes either an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice.” Any plan, the court explained, “will need to include two districts in which Black voters either comprise a voting-age majority or something quite close to it.”

Instead of complying, Alabama continues to snub the Court and thwart the Act, which Congress enacted in 1965 to equalize voting opportunities for racial minorities. The map Alabama passed in response to the Supreme Court’s ruling has the same problem as before: it includes only one majority-Black district out of seven. Indeed, the sole majority-Black district in this latest map saw its minority population drop from 55.6% to 50.65%, while the map includes a second district with a Black population of 39.93%, in a rebuke to the order to come up with a second district that is at least something close to having a majority Black population.

On September 5, the three-judge court overseeing the process—which includes two appointees of former President Donald Trump—struck down the latest map in a 217-page ruling, saying the issue was “not close” and noting that it was “deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires.” Alabama has now appealed that ruling back to the Supreme Court.

The state is asking the Supreme Court to put the lower court’s latest ruling on hold while the appeal works its way through the court system. That gambit worked last time: the Court stayed a ruling in 2022 that the prior map violated the Voting Rights Act, allowing the state to use a discriminatory map in the 2022 midterms. Alabama is seeking a similar ruling, hoping that a delay will permit it to again implement an illegal map for 2024.

Alabama essentially makes two arguments in its new appeal: first, that the Court should not require it to draw two majority-Black districts and, second, that Section 2 of the Voting Rights Act itself might be unconstitutional.

Regarding the number of majority-Black districts, Alabama argues that the Court didn’t really mean what it said just a few months ago when it upheld the prior lower court ruling that found the old map likely unlawful. The conservative majority on the Supreme Court has not been shy about overturning precedent in recent years, giving fodder for Alabama’s request for the Court to scrap what it said this past June.

On the constitutional issue, Alabama seeks to exploit a comment from Justice Brett Kavanaugh in his concurring opinion in the case from June. Echoing Justice Clarence Thomas’s dissent, Justice Kavanaugh opined that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” However, in the prior case, Alabama had not made that timing argument, so Kavanaugh said he would not consider it. Predictably, Alabama is now claiming that if the Voting Rights Act requires it to draw a map with two majority-Black districts, the Act itself may be unconstitutional. Pointing to the Court’s recent holding that affirmative action cannot last forever, Alabama says that race-based districting also cannot continue indefinitely—even though Congress passed the Voting Rights Act specifically to eradicate discrimination in voting, not to mention the wealth of evidence of racial disparities in representation in Alabama.

The rejection of Alabama’s challenge to Section 2 of the Voting Rights Act this past June was 5–4, with Justice Kavanaugh providing the fifth vote. Might he or Chief Justice Roberts latch on to these new arguments?

If precedent and the rule of law mean anything, the Court should soundly reject Alabama’s ploy—quickly, so a special master can draw a fair map before the candidate filing deadline for the 2024 election. The Court cannot allow Alabama to refuse to follow its orders. (Garrett Epps, the University of Oregon law professor and the Monthly’s legal editor, recently noted Alabama’s long history of defiance.) As Kate Shaw, a former Supreme Court clerk and a professor at the Benjamin N. Cardozo School of Law, wrote in The New York Times, if the Court rules in favor of Alabama, “it will be announcing to the world that its opinions need not be heeded.”

Alabama’s actions show that it is not interested in fair representation and underscore that the Voting Rights Act still needs robust enforcement. Once again, the Court must order Alabama to comply with the law. Given Alabama’s blatant disregard of the prior ruling, the Court should now be unanimous.

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Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law and the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at and follow him on Twitter @JoshuaADouglas.