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Supreme Court Hears Oral Arguments in Alabama Redistricting Case

Brandon Moseley

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By Brandon Moseley
Alabama Political Reporter

Alabama Attorney General Luther Strange (R), State Senator Jim McClendon (R from Springville), State Senator Gerald Dial (R from Lineville) and others were at the U.S. Supreme Court on Wednesday to defend the State of Alabama’s redistricting plan from two lawsuits challenging the plan by the Alabama Black Legislative Caucus and former State Representative Joe Reed’s group: the Alabama Democratic Conference.

Alabama State Senator Quinton Ross (D from Montgomery) and State Representatives John Knight (D from Montgomery) and Christopher John England (D from Tuscaloosa) were also at the Supreme Court on Wednesday, but they were with the plaintiffs.

The justices of the U.S. Supreme Court are considering the combined cases of Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama.  Alabama’s state legislative redistricting plan is being challenged for allegedly packing too many black voters and Democrat voters in majority-black districts. This plan was already upheld by the Federal 11th Circuit Court of Appeals by a two-to-one vote. The appeals court rejected the claim that the plan violated the 1st and 14th Amendments of the U.S. Constitution and the Voting Rights Act.  Judge William H. Pryor (formerly Alabama’s Republican Attorney General) wrote that “the overwhelming evidence in the record suggests that black voters will have an equal opportunity to participate in the political process the same as everyone else.”

The Civil Rights Act of 1965 required that Alabama and other Southern States submit any legislative redistricting to the U.S. Justice Department for preclearance so that the State can not use redistricting to disenfranchise minority voters.  While that section of the Civil Rights Act has been rejected by the U.S. Supreme Court as antiquated, that ruling occurred after the DOJ’s Civil Rights Division approved Alabama’s redistricting plan. Holder’s DOJ saw no problem with the plan.

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The State is redistricted and reapportioned every ten years based on the census.

Following the 2000 census the Alabama Democratic Party controlled both Houses of the legislature and they gerrymandered the State to protect Democratic incumbents. In the Republican landslide election of 2010, the Republican Party was given super majorities in both Houses of the Legislature by the voters of Alabama.  Republicans got to control the redistricting.

Representative Jim McClendon (R from Springville) and Senator Gerald Dial (R from Lineville) were the Chairs of the Joint Committee on Redistricting.  Rep. McClendon told the Alabama Political Reporter in December following the Appeals Court victory, “Sen. Dial & I along with the 22 member Committee and the Speaker and Pro Tem proposed a plan that got DOJ preclearance in record time, withstood Federal judicial review, and created fair districts that accurately reflect the will of the voters in Alabama. I am proud to have had a roll in the process and am pleased both candidates and voters have this matter settled in ample time for the 2014 election.”

McClendon was elected to the State Senate on Tuesday, November 4.

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According to original reporting by the Washington Post’s Robert Barnes, more than one justice pointed out during oral arguments that minority voters used to come to the court to demand that legislatures specifically use race in order to ensure that blacks and Hispanics be represented in government, which is now what the Black lawmakers are objecting to in the Alabama redistricting.

Barnes reported that Justice Antonin Scalia told Richard Pildes, an attorney representing the Alabama Democratic Caucus, that he was making the same argument “the other side used to be making” when the demand then was for districts that could be won by minorities.

Chief Justice John G. Roberts Jr. said that states faced conflicting demands from Congress to make sure that minorities were represented and from constitutional protections against government treating people differently because of race. Roberts said he sympathized with states trying to find the “sweet spot” between too much consideration of race and too little.

The State of Alabama contends that its redistricting plans were guided by a goal of making districts as similar to each other in size as possible to comply with commands of “one person, one vote,” and that the plan complies with demands of the Voting Rights Act that states create majority-minority districts when possible to allow minorities to elect representatives of their choice.

Alabama Solicitor General Andrew L. Brasher noted that about 25 percent of the state’s population is black, as is the percentage of blacks in the Alabama legislature.

The Washington Post is reporting that Justice Elena Kagan however said the state was under the “mistaken understanding” that it had to keep the percentages in the majority-minority districts unchanged. She said it was clear that the state was looking only at race when it split voting precincts in drawing the new districts.

Legal experts with the Project 21 black leadership network defended the state of Alabama and its elected legislature against what it called: “partisan and special interest groups.”

Project 21 was included in a legal brief submitted to the Court, that argued legislators were compelled by federal law that was in force at the time to include race in its redistricting plan, but that recent rulings should now compel a stricter scrutiny of how race affects the creation of future legislative districts to the extent that the Court may once again need to reassess elements of the Voting Rights Act.

Project 21 Co-Chair Horace Cooper said in a statement, “I anticipate the Court will make it clear that state legislatures across the land will not be expected to adapt their redistricting lines to meet pre-ordained racial goals…Aiding minority voters in their efforts to elect representatives of their choice must be balanced by the Constitution’s requirement that government should not use race as a tool for policy making unless it is absolutely essential to do so. Race-based districts are a throwback to a bygone era. As is the case with government contracting and college admissions, State legislators should pursue colorblind reapportionment policies whenever possible.”

Project 21’s Patricia Nation said in a statement, “Infringements of State sovereignty through race-conscious federal mandates on legislative redistricting provide no effective protections for the black voter. This intrusion on fundamental liberties and constitutional protections only seems to advance political ideology and partisan efforts to win elections rather than protect minority communities.”

Mr. Cooper added, “In modern politics, complaints about racial barriers to voting seem to have more to do with partisan griping than civil rights.  It’s usually about whose ox is getting gored and not about real, legitimate issues involving protected rights.”

In 2013, Project 21 was similarly involved in the landmark Supreme Court case of Shelby County v. Holder that invalidated the “preclearance” formula in the Voting Rights Act.

Project 21 describes itself as a leading voice of black conservatives for over two decades and is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982.

After the favorable appeals court ruling AG Strange said, “This was a complex case that required skilled and talented legal counsel, and it has been a top priority for my office.  I am proud of the evidence we presented and grateful for the attorneys who helped achieve this successful result.” Strange Deputy Attorney General Jack Park and Assistant Attorneys General Jim Davis and Misty Messick for their work on the case.

A ruling by the Supreme Court is expected some time in 2015.

 

Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Health

Alabama hospitals nearing COVID-19 summer surge levels

Wednesday was the 18th straight day with more than 1,000 people in hospitals in Alabama with COVID-19. 

Eddie Burkhalter

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UAB Chief of Hospital Medicine Dr. Kierstin Kennedy.

Alabama hospitals reported caring for 1,483 people infected with COVID-19 on Wednesday, the highest number of patients since Aug. 11, when the state was enduring its summer surge. Wednesday was also the 18th straight day with more than 1,000 people in hospitals in Alabama with COVID-19. 

The seven-day average of hospitalizations was 1,370 on Wednesday, the 36th straight day of that average rising. The Alabama Department of Public Health reported 2,453 new cases Wednesday. The 14-day average of new cases was — for the eighth day in a row — at a record high of 2,192. 

Across the country, more than 80,000 people were hospitalized for COVID-19 on Tuesday, a record high and the 15th straight day of record hospitalizations nationwide, according to the COVID Tracking Project, a coronavirus tracking website.

The CDC this week recommended people not travel for Thanksgiving to help prevent the spread of coronavirus. 

“The only way for us to successfully get through this pandemic is if we work together,” said Dr. Kierstin Kennedy, UAB’s chief of hospital medicine, in a message Tuesday. “There’s no one subset of the community that’s going to be able to carry the weight of this pandemic and so we all have to take part in wearing our masks, keeping our distance, making sure that we’re washing our hands.” 

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Kennedy said the best way she can describe the current situation is “Russian Roulette.” 

“Not only in the form of, maybe you get it and you don’t get sick or maybe you get it and you end up in the ICU,” Kennedy said, “but if you do end up sick, are you going to get to the hospital at a time when we’ve got capacity, and we’ve got enough people to take care of you? And that is a scary thought.” 

The Alabama Department of Public Health on Wednesday reported an increase of 60 confirmed and probable COVID-19 deaths. Deaths take time to confirm and the date a death is reported does not necessarily reflect the date on which the individual died. At least 23 of those deaths occurred in November, and 30 occurred in other months. Seven were undated. Data for the last two to three weeks are incomplete.

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As of Wednesday, at least 3,532 Alabamians have died of COVID-19, according to the Department of Public Health. During November, at least 195 people have died in Alabama from COVID-19. But ADPH is sure to add more to the month’s tally in the weeks to come as data becomes more complete.

ADPH on Wednesday announced a change that nearly doubled the department’s estimate of people who have recovered from COVID-19, bringing that figure up to 161,946. That change also alters APR’s estimates of how many cases are considered active.

ADPH’s Infectious Disease and Outbreak team “updated some parameters” in the department’s Alabama NEDSS Base Surveillance System, which resulted in the increase, the department said.

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Corruption

Judge reduces former Alabama Speaker Mike Hubbard’s prison sentence

The trial court judge ordered his 48-month sentence reduced to 28 months.

Eddie Burkhalter

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Former Alabama House Speaker Mike Hubbard was booked into jail to begin serving his four-year sentence for ethics violations in September. (VIA LEE COUNTY DETENTION CENTER)

Lee County Circuit Court Judge Jacob Walker on Wednesday reduced former Alabama House Speaker Mike Hubbard’s prison sentence from four years to just more than two. 

Walker in his order filed Wednesday noted that Hubbard was sentenced to fours years on Aug. 9, 2016, after being convicted of 12 felony ethics charges for misusing his office for personal gain, but that on Aug. 27, 2018, the Alabama Court of Criminal Appeals reversed convictions on one counts. The Alabama Supreme Court later struck down another five counts.

Hubbard’s attorneys on Sept. 18 filed a motion to revise his sentence, to which the state objected, according to court records, arguing that “Hubbard’s refusal to admit any guilt or express any remorse makes him wholly unfit to receive any leniency.”   

Walker in his order cited state code and wrote that the power of the courts to grant probation “is a matter of grace and lies entirely within the sound discretion of the trial court.” 

“Furthermore, the Court must consider the nature of the Defendant’s crimes. Acts of public corruption harm not just those directly involved, but harm society as a whole,” Walker wrote.

Walker ruled that because six of Hubbard’s original felony counts were later reversed, his sentence should be changed to reflect that, and ordered his 48-month sentence reduced to 28 months. 

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Alabama Attorney General Steve Marshall on Wednesday said Walker’s decision to reduce Hubbard’s sentence was the wrong message to send.

“Mr. Hubbard was convicted of the intentional violation of Alabama’s ethics laws, the same laws he championed in the legislature only later to brazenly disregard for his personal enrichment,” Marshall said in a statement. “Even as he sits in state prison as a six-time felon, Mike Hubbard continues to deny any guilt or offer any remorse for his actions in violation of the law.  Reducing his original four-year sentence sends precisely the wrong message to would-be violators of Alabama’s ethics laws.”

Hubbard was booked into the Lee County Jail on Sept. 11, more than four years after his conviction. On Nov. 5 he was taken into custody by the Department of Corrections.

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News

Nick Saban tests positive for COVID-19, has “mild symptoms”

It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn.

Eddie Burkhalter

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University of Alabama head football coach Nick Saban.

University of Alabama head football coach Nick Saban has tested positive for COVID-19 ahead of the Iron Bowl and has mild symptoms, according to a statement from the university on Wednesday. 

“This morning we received notification that Coach Saban tested positive for COVID-19,” said Dr. Jimmy Robinson and Jeff Allan, associate athletic director, in the statement. “He has very mild symptoms, so this test will not be categorized as a false positive. He will follow all appropriate guidelines and isolate at home.” 

Saban had previously tested positive before Alabama’s game against Georgia but was asymptomatic and subsequently tested negative three times, a sign that the positive test could have been a false positive. He returned to coach that game. 

It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn, given the Centers for Disease Control and Prevention’s guidelines for quarantining after testing positive and with symptoms. Neither Saban nor the university had spoken about that possibility as of Wednesday morning.

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National

Civil rights leader Bruce Boynton dies at 83

The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.

Brandon Moseley

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Selma attorney and Civil Rights Movement leader Bruce Carver Boynton

Selma attorney and Civil Rights Movement leader Bruce Carver Boynton died from cancer in a Montgomery hospital on Monday. He was 83. The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.

“We’ve lost a giant of the Civil Rights Movement,” said Congresswoman Terri Sewell, D-Alabama. “Son of Amelia Boynton Robinson, Bruce Boynton was a Selma native whose refusal to leave a “whites-only” section of a bus station restaurant led to the landmark SCOTUS decision in Boynton v. Virginia overturning racial segregation in public transportation, sparking the Freedom Rides and end of Jim Crow. Let us be inspired by his commitment to keep striving and working toward a more perfect union.”

Boynton attended Howard University Law School in Washington D.C. He was arrested in Richmond, Virginia, in his senior year of law school for refusing to leave a “whites-only” section of a bus station restaurant. That arrest and conviction would be appealed all the way to the U.S. Supreme Court where Boynton and civil rights advocates prevailed in the landmark case 1060 Boynton vs. Virginia.

Boynton’s case was handled by famed civil rights era attorney Thurgood Marshal, who would go on to serve on the U.S. Supreme Court. The 1960 7-to-2 decision ruled that federal prohibitions barring segregation on interstate buses also applied to bus stations and other interstate travel facilities.

The decision inspired the “Freedom Rides” movement. Some Freedom Riders were attacked when they came to Alabama.

While Boynton received a high score on the Alabama Bar exam, the Alabama Bar prevented him from working in the state for years due to that 1958 trespassing conviction. Undeterred, Boynton worked in Tennessee during the years, bringing school desegregation lawsuits.

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Sherrilyn Ifill with the NAACP Legal Defense Fund said on social media: “NAACP LDF represented Bruce Boynton, who was an unplanned Freedom Rider (he simply wanted to buy a sandwich in a Va bus station stop & when denied was willing to sue & his case went to the SCOTUS) and later Bruce’s mother Amelia Boynton (in Selma after Bloody Sunday).”

His mother, Amelia Boynton, was an early organizer of the voting rights movement. During the Selma to Montgomery Voting Rights March in 1965, she was beaten on the Edmund Pettus Bridge. She later co-founded the National Voting Rights Museum and annual Bridge Crossing Jubilee in Selma. His father S.W. Boynton was also active in the Civil Rights Movement.

Bruce Boynton worked for several years at a Washington D.C. law firm but spent most of his long, illustrious legal career in Selma, Alabama, with a focus on civil rights cases. He was the first Black special prosecutor in Alabama history and at one point he represented Stokely Carmichael.

This year has seen the passing of a number of prominent Civil Rights Movement leaders, including Troy native Georgia Congressman John Lewis.

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