The high court ruled 5-4 last month to side with a lower court’s rejection of a map that had only one majority-Black congressional district for the six lawmakers who represent Alabama in the US House of Representatives, saying there was persuasive evidence the districts were racially gerrymandered to deny Black voters the same opportunity white voters have to vote people of their race into office.
Last week, the state’s lawmakers presented a new map that again declined to carve out a second majority-Black district, instead distributing the Black vote among several other districts, one of which had as much as 40% of its electorate as Black. It also reduced the Black majority in the one existing majority-Black district from 55% to 51%.
Bruce Fein, a former associate deputy attorney general of the United States and one of the country’s leading constitutional scholars, told Sputnik that Alabama’s move was the first time he’d encountered something so flagrant since the Brown vs. Board ruling in 1954.
“The court found the reason there wasn’t a second Black district was because of racial animus. So you could still draw another district, but you would have to show it isn’t tainted by this racial animosity."
Fein pointed out to Radio Sputnik's Political Misfits that the reaction of the Alabama legislature ultimately stemmed from the same logic as the Southern Manifesto, a 1956 declaration by federal lawmakers representing former Confederate states of their opposition to racial integration of public places, in response to the 1954 Supreme Court ruling in Brown vs. Board of Education that found segregation illegal.
“You know, ‘Massive Resistance.’ And George Wallace at that time was the governor of Alabama, and you know, standing at the University of Alabama saying he would never let a Black person enter, even though it was flagrantly in violation of the Supreme Court decision,” Fein said, noting Wallace wasn’t the only one, but that Alabama was “notorious” for flouting the high court’s ruling and that it still took a long time for the court’s order to integrate schools was actually implemented nationwide.
“So unfortunately, Alabama does not have a very clean record and I think it would come back to haunt them if the US Supreme Court finds that this violation - that they made no good-faith effort to draft districting lines without a racial motivation. They could be held in contempt and the legislators could be fined out of their own pockets,” Fein explained.
“If pushed to the edge, they could stick them in prison until they came up with a plan that satisfies the Supreme Court’s decision,” he added.
Fein noted that some “small stories” in major US media outlets covered the developments in Alabama, but said it is war stories that “dominate the headlines. All other stories get second or third-tier coverage.”
The constitutional expert noted it was important for the high court to ramp up its efforts to force Alabama lawmakers into compliance with its ruling, because otherwise they will “just delay, delay, delay, and it really wreaks havoc on the electoral process. Nobody knows where they’re running for office, you know, if you’re a candidate you got to know who’s on the ballot, right? Who’s going to vote for you, where you’re putting your canvases, where you’re trying to run your advertisement.”
“So this is very unfortunate, because it casts a cloud over the legitimacy of the electoral process when you have games like this being played. And unfortunately, the South since the Civil War has a history of this kind of shenanigans,” Fein said, noting “there is still a substantial racist element in the South.”
Fein explained that the origin of the high court’s ruling came from a trio of constitutional amendments passed in the immediate aftermath of the US Civil War, during a period of systematic purging of Confederate institutions and ideologies known as Reconstruction.
16 February 2023, 23:59 GMT
He said the amendments “specifically were calculated to emancipate Freedmen - Blacks who had been slaves. The 15th Amendment in particular says that there will not be any discrimination in voting based upon race, and so the word ‘race’ is right in the 15th Amendment. It’s like what’s in the 19th Amendment, says you can’t discriminate based upon gender or sex.”
Fein then turned to the story of Patrick Braxton, an Alabama Black man who was the first-ever elected to be the mayor of Newbern in 2020, and who has been obstructed from taking office by the town’s previous mayor, a white man named Woody Stokes III, and the town’s all-white council. The city’s population is roughly 80% Black and 20% white. Braxton has filed a civil rights lawsuit on the grounds that the town’s actions constitute racial disenfranchisement.
“It’s obviously flagrantly unconstitutional,” Fein told Sputnik. “But the Constitution - and indeed all laws - are not self-enforcing. You have to have at least some resources, because if you have to go to court then you have to pay a lawyer. So the fact is that in some places, the population just doesn’t know what their rights are, or they’re so intimidated. And oftentimes, they are intimidated because they feel, ok, if they go into court then their kids’ll get kidnapped or their house will get burned down and there’s no law enforcement - so there’s retaliation for trying to stand on your rights, so everyone kind of backs away.”
Fein noted that similar kinds of intimidation happen when he tries to find witnesses to participate in lawsuits over human rights crimes abroad.
“This is the kind of thing that can enable flagrantly unconstitutional practices to endure, if you don’t have the dynamics to be able to walk into court and challenge it,” he said.