Alabama Attorney General Steve Marshall gave his support to the Jefferson County Commission’s appeal of a ruling barring the use of its current district map.
In an amicus brief filed in the U.S. 11th Circuit Court of Appeals last week, Marshall argued that U.S. District Judge Madeline Haikala, of the U.S. District Court for the Northern District of Alabama, erred in a September ruling finding that the commission’s 2021 district map was drawn with race as its predominant factor and is unconstitutional. The verdict came in a 2023 lawsuit alleging the plan intentionally packed Black voters into just two districts.
The Northern District Court’s ruling has since been appealed by the commission and stayed by an 11th Circuit decision in October, which held that the commission could use its 2021 map for 2026 elections while the appellate court considers the state’s appeal.
Marshall’s office urged the appeals court to overturn the September ruling, arguing that the district court’s verdict presumed “without evidence that the Commission imposed racial targets rather than presuming that the Commission acted in good faith.”
“The U.S. Supreme Court has been clear that courts must presume that a legislative body acts in good faith. The district court ignored that rule and created a problem that doesn’t exist,” Marshall said in a statement. “The presumption that state and local officials act for legitimate rather than discriminatory reasons is vital because, without it, courts are transformed into weapons of political warfare. That is exactly what happened here.”
The brief’s argument focuses on the U.S. Supreme Court’s ruling in the redistricting case Alexander v. South Carolina State Conference of the NAACP, which held that the work of legislatures and county commissions must be assessed by courts with the “starting presumption” that the legislature or commission “acted in good faith.”
“The court paid only lip service to the presumption of good faith and the most recent Supreme Court decision articulating how the presumption should apply,” the brief reads. “Like the district court that was reversed in Alexander, the district court here invented racial targets for the 2021 Commission (and its predecessors going back 40 years) and assumed that the Commission was pursuing those targets at every turn.”
The brief also cited that the 2021 district map retained 90 percent of its districts’ 2013 structure and argued that plaintiffs never adequately showed how the commission could have produced a map with a greater racial balance.
Plaintiffs in the case have argued the 2021 map was drawn in order to keep Black voting power isolated in Districts 1 and 2, and the commission responded to Jefferson County’s population growth by unnecessarily adding additional Black voters to established Black supermajority districts. Plaintiffs additionally maintained that during the 2010 redistricting cycle, the commission also “needlessly put more Black voters in Districts 1 and 2.”
The suit was filed by the Legal Defense Fund and Birmingham law firm Wiggins, Childs, Pantazis, Fisher & Goldfarb, on behalf of Birmingham resident Cara McClure, Greater Birmingham Ministries and the Alabama State Conference of the NAACP.
“In developing the Enacted Plan, race was the Commission’s predominant motive,” plaintiffs wrote in their original complaint.
The complaint cites that, since the current five-district structure of the county commission’s map was adopted in 1986, in response to Voting Rights Act litigation, Black voters have made up roughly 65 percent of voters in Districts 1 and 2.
Plaintiffs point out that the two districts have elected Black candidates since they were incorporated, while no Black commission candidates have won in “supermajority-white” Districts 3, 4 and 5, “despite Black candidates’ success county-wide.”
They also cited that the consent decree that established the districts in 1986, in response to the VRA litigation, did not mandate that the commission maintain Black supermajorities in Districts 1 and 2.
While Black residents comprised roughly 33 percent of Jefferson County in 1986, they made up 40 percent of the county in 2020.
According to plaintiffs, the maps proposed in 2021 commission redistricting meetings “began with the 2010 map as a baseline, and all added new tendrils to capture and separate Black communities from white ones, splitting more voting districts, municipalities, and localities than necessary to achieve race-neutral districting principles.”
Responding to the Northern District’s ruling that the 2013 map does not represent race neutral districting, and therefore the commission shouldn’t have sought to retain its district’s core structure, the Attorney General’s brief argued that even if past versions of the map were likely drawn along racial lines, a precedent set by the 11th Circuit in League of Women Voters of Florida v. Florida Secretary of State, bars the court from consideration of the past maps’ racial intent.
“Even if there were strong evidence that earlier maps were race-predominant, this Court has ‘rejected the argument that “a racist past is evidence of current intent,”’” the brief reads.
The brief goes on to allege the district court ruling that race was the determining factor in districting the 2013 and 2021 maps would require states to increasingly factor race into districting and force an undue burden on districting bodies that must investigate past maps for their racial intent.
The document reads that the court’s ruling would, “nonsensically, force States and local governments to engage in race-predominant districting to avoid charges of race-predominant districting.”
“To avoid being condemned for using race too much in districting, a county or State must use race more to defend against charges about arguably race-based lines from the past that were never adjudged to be race predominant. And governments must investigate not just the last map, but the one before that—and so on for generations,” the brief reads.
Alongside Marshall, the brief was signed by Alabama Solicitor General Barrett Bowdre. Florida Attorney General James Uthmeier and Georgia Attorney General Chris Carr served as additional counsel for the filing.
