Inside the fight over redistricting and voting rights in Alabama NPR talked to people involved in the upcoming Supreme Court case about redistricting in Alabama to learn more about the battle over voting rights and gerrymandering in the state.

Inside the fight over Alabama's congressional maps

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We're in Montgomery, Ala., this week. We came here because there are important stories playing out locally that touch on some of the most contentious issues in American life right now, issues around the telling of history and access to the levers of power. One of these battles is over voting rights and representation. That fight is playing out once again in a case that will be heard by the Supreme Court in the fall, Merrill v. Milligan. It involves a challenge to Alabama's congressional map.

We met with some of the key players in this suit, including Evan Milligan, one of the voters who brought it. He grew up in Montgomery. He describes himself as six generations removed from slavery in Alabama. And now he runs a group called Alabama Forward. It's a coalition formed to encourage civic engagement and advocate for progressive policies. He invited us to his home for the interview.

Great. So good to meet you.

EVAN MILLIGAN: Such a pleasure to meet you. Absolutely.

MARTIN: It's Michel Martin. Yeah, likewise. Thank you for letting us come in. This is everybody.

MILLIGAN: Hi, everybody (laughter).

MARTIN: This is all the people. Where do you want us to be?

MILLIGAN: Good deal. We'll sit in this room in here.

MARTIN: Great. Perfect.

Once we got ourselves settled, I asked about the case that bears his name and why he chose to bring it forward.

MILLIGAN: The Voting Rights Act really requires that where you have patterns of discrimination against non-white voters, that there should be an opportunity for voters in that area to be able to elect the candidate of their choice. So based on our population growth here, about 25% of the state's population is African American, only 17% percent of our congressional seats are. So creating that second district would basically bring our congressional representation further in line with the actual realities of our population growth over the last 10 years.

MARTIN: Milligan says the state's congressional map disfavors Black voters because it packs the majority of the Black population into one of Alabama's seven congressional districts, even though statistically there are enough Black voters for two. A three-judge federal panel, including two Trump appointees, agreed with him. He wasn't expecting that.

MILLIGAN: Very pleasant surprise, if not, you know, a little bit of, you know, a little bit of wonder in that moment.

MARTIN: Really?


MARTIN: You didn't think you'd win?

MILLIGAN: I believed in the legal team, and I believed in the argument that they were making. And I liked that the core of the argument rested on here is this gift of, you know, democratic principle that we still have functional via Section 2 of the Voting Rights Act.

MARTIN: Why did you bring the suit if you didn't think you'd win?

MILLIGAN: Because the principle of challenge. Like, doing activist and advocacy work in Alabama, it's about making the case, building the record and still calling the country and the state to account on what our stated values are as far as democracy. So it was important to challenge it. And then you never know. Like, it's like weather sometimes. You never know what - something might surprise you like it happened here. When I heard what their legal argument was, that's what sold me.

MARTIN: But then the U.S. Supreme Court intervened. In an unsigned ruling, five members of the High Court's conservative majority stopped the state from going forward with the map the lower court approved, which included a second majority Black district. The court said it will hear arguments later, but it will be too late for this year's midterm elections. And that's just fine with Alabama State Senator Jim McLendon, a Republican. He is one of the chairs of the state's redistricting commission, the group that helps draw up the state's voting maps.

JIM MCCLENDON: When we drew the districts, we drew the districts race blind. In other words, as our computer - as the lines moved on the screen, the numbers changed. We didn't have race up there because we couldn't. You're not supposed to use race. Voting Rights Act tell you very clearly. You can't use race in doing this. When we got through the districts, we did check them to make sure we hadn't done some other kind of violation. And we came out with this plan we have with the six Republican districts and one Democratic district. Then the three-judge panel comes along and says, you need to redraw these. You need to draw two districts that are majority African American districts or two that are very close to that, which means you've got to use race.

MARTIN: Respectfully, Senator...

MCCLENDON: Now, let me finish. Now, wait a minute.

MARTIN: ...I think I would disagree that the Voting Rights Act says that you have to be race-neutral. What the Voting Rights Act says is that minority voters should have the opportunity, if they are contiguous and have similar interests, should have the opportunity to elect a candidate of their choice. So it's not race-neutral. It says that minorities can't be disadvantaged. That's what it says. It's not race-neutral. It says that minorities can't be unduly disadvantaged in selecting the candidate of their choice. I mean, our Constitution is very mindful of minority rights writ large, not just racial minorities, but minorities in general. I mean, that's what the Federalist Papers were - one of The Federalist Papers, Federalist 10, was all about was minority rights writ large. So I guess what I'm just asking you is you think it's fair is the bottom line. You think it's fair. You think it's a fair amount.

MCCLENDON: That's exactly what the response was from our attorney general back to the three-judge panel. Three-judge panel told us, legislature, go draw some new maps and then do it by February 11. Our response back to the three-judge panel was that we thought we followed the letter of the law in everything that we've done, and we're not going to draw maps.

MARTIN: What do you say to people who say that you could argue that this is partisan gerrymandering? This is gerrymandering for the purpose of drawing maps that are most favorable to the party in power. In this case, it's Republicans. But that in this particular state and in others, it actually amounts to racial gerrymandering, which is packing minority voters into one district where they're not given the opportunity to influence public discourse in other districts. What do you say to that?

MCCLENDON: I say gerrymandering is like beauty. It's in the eye of the beholder. If it's my district and you didn't draw it like I wanted it drawn, that's gerrymandering. But if you draw me a district that I'm really happy with, that's not gerrymandering. That's a fair district.

MARTIN: And State Senator McClendon says the redistricting process is fair because any state lawmakers who want to can comment on the map, and they're the ones who vote on it. But he also says there isn't much guidance from the federal government on what exactly makes for an equitable map.

MCCLENDON: Now here's the problem. Let's say we follow the court and says we're going to draw two districts that are about 50% and 50%. What happens if both of those districts end up with Republicans and Alabama ends up with seven Republicans and zero Democrats, seven white, zero African Americans? Where are we then? That's no good. That is as unfair as you can get, but that's what the court asked us to do.

MARTIN: Or maybe it might go the other way, could maybe two African Americans, Democrats or Republicans...


MCCLENDON: One of the difficulties we have, the courts have never told us what is a safe percentage to put in a district to allow someone in a minority district - they've never given us a guideline. Is it 55%? Is it 49 1/2? Is it 51? It's pretty hard to do that and assure that you're going to get minority representation.

MARTIN: But your African American colleagues, including Congresswoman Terri Sewell, is saying she'd be willing to risk it. She'd be willing to risk it. Why won't you let her?

MCCLENDON: Well, that's good. That's good. Well, we're going to see what happens. It's now at the U.S. Supreme Court, and it won't go any further than that. We know that.

JOHN MERRILL: The North Star for us is what we try to do every day, which is to offer an opportunity for each and every eligible U.S. citizen that's a resident of Alabama to be registered to vote and obtain a photo ID.

MARTIN: That's John Merrill, Alabama's secretary of state, the top election official in the state, a Republican. Redistricting is out of his control since it's left to the legislature, but we spoke with him because he's in charge of implementing the state's voting procedure, and he's the named defendant in the voting rights suit. He agrees that the issue boils down to location.

MERRILL: If 26.7% of the people that live in the state of Alabama that are identifying themselves as African American all lived in the same geographic area, they obviously would have at least two congressional districts of the seven that we currently have. But they don't. You know why they don't? Because they live where they want to. People get to move where they choose to in our state. So if you live where you want, then you get to vote for the people that are in that district. That's the way the process works.

MARTIN: But Evan Milligan, who's challenging the maps, disagrees. I asked, given the lack of guidance on what equity looks like in redistricting, what he thinks about that argument.

MILLIGAN: So some of what the legislature and what the state government representatives are saying is we didn't know or we couldn't know, so we shouldn't be held accountable to that higher standard when, in fact, those things are discernable, and they did have an extra amount of time on the calendar because of the delay in the release of the census data. If they were really interested, why wouldn't they be interested, given the recent proximity of federal litigation around discrimination against Black voters via state and congressional maps here in the state? There was a lawsuit settled in, I believe, 2017 or '18, and historically every cycle of redistricting, there's a legal challenge. So it was already enough notice to know that this would be a potential issue that at least people would be interested in.

MARTIN: Race came up a lot in our conversations about the state's congressional map, but if lawmakers and not independent commissions are deciding the maps, I wanted to know if these redistricting efforts where lawmakers essentially choose their voters plays a role in the toxic, hyper-partisan climate that so many in the public and in public life complain about today. Secretary Merrill, a former state legislator himself, says he didn't see it that way.

MERRILL: At the end of the 2014 legislative session, the Sunlight Foundation always evaluates the service of every legislator in every state in the Union. And after 2014, they recognized me as the most effective member of the Alabama legislature, not the most conservative, certainly not the most liberal, but the most effective. And the reason that they were able to do that was because of what I was able to do in working with Democrats and trying to come together to produce the best pieces of the legislation that we could pass when I was in the body.

MARTIN: So you honestly think there's nothing that leaders can do to create an environment where compromise is more highly valued and is sought after by the voters? There's nothing you can do?

MERRILL: We've had that for many, many years in our history as far as the Republic is concerned. And my point is and what I stated a few moments ago is that the only way you can change the animus that exists between two sides or multiple sides today is by changing the people who are making those decisions. And when people get tired of that animus, they get tired of people being so polarized in their politics, in Washington or in Montgomery or in any other capital in the other 49 states, those people make a change. And until they get ready to make that change, you're going to continue to get what you've been getting.

MARTIN: But Milligan says there's more at stake than just getting to the polls to cast your ballot. He says it's about whose voice will be heard.

MILLIGAN: This is where I grew up, you know, not even just the city in the state, but literally this whole area. Like, if you were to go look at the pivotal civil rights landmarks in the city, these are the places where I grew up. And so not only do I have a reverence for what that meant in the '50s to my mom or to her peers or, you know, to folks beforehand, but I have my own, you know, somatic visceral memories of the same place. So it's home. And I think I just have this interest in wanting to move the needle forward and want to be disruptive enough to buy my kids some time should they choose to stay here.

I think one of the things at Alabama Forward that we really want to do is recognize for a while in Alabama, if you were a person that didn't want to just say, OK, I'll be here and either buy into the status quo political system or just be here and be very cynical and disempowered or I'm going somewhere else, changing my accent and, you know, cutting ties. And what we have to do is not really play those games with ourselves anymore. People who need to leave for love, for job opportunities, for sanity, for whatever else can still maintain their commitment and their membership and participation in pro-democracy work here.

And we still need those relationships and those resources and just that energy. And that's going to benefit them wherever they are with feeling more pride. And - because you can't just walk around feeling like your social identity is a constant negative. So figuring out how to build new identity spaces for people in Alabama or from Alabama who have pro-democracy values, that's something that we're leaning into with music, with art, with organizing and with funding, with litigation when necessary, with really everything that we can to try to get more people involved in this conversation.

MARTIN: That was activist Evan Milligan, one of the people challenging Alabama's latest congressional map. We also heard from Alabama State Senator Jim McClendon and Secretary of State John Merrill.

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