Alabama officials are working to restrict rights, up to SCOTUS and across the South
Alabama's leaders continue fighting against voting rights for Black Alabamians and medically necessary care for transgender Alabamians — with Floridians and Georgians affected, too.
On Monday, Alabama went back to the U.S. Supreme Court to argue that its latest congressional map found to be illegal is not illegal and should not have been found to be illegal despite it not having addressed the issue that led to its earlier map having been found to be illegal.
At its simplest, Alabama has been ordered to draw a congressional map that includes a second “opportunity district” that will enable Black voters to elect the candidate of their choice. Alabama has refused.
Now, Republican Alabama Secretary of State Wes Allen, represented by Republican Alabama Attorney General Steve Marshall, is arguing that the Supreme Court should OK that.
The move to the high court came hours after a three-judge district court refused to halt enforcement of its earlier order finding that Alabama’s 2023 congressional map continues to violate Section 2 of the Voting Rights Act by illegally diluting Black Alabamians’ votes. The state had been ordered, in a ruling affirmed by the Supreme Court in June, to draw that second “opportunity district” in its congressional map, but the new map did no such thing.
Unsurprisingly, the three-judge district court was not happy about all of this and ordered Allen not to use the 2023 map. The court also ordered a special master to devise alternative maps — ones that would be legal — by later this month. Allen then asked for that ruling to be stayed — in effect, allowing the state to use the illegal map.
As the district court bluntly put it in denying that stay request:
Alabama then sought further delay, asking the Supreme Court for a stay. Notably, the state went further than that, asking in a footnote for the justices to treat the stay request as a request for the court to hear the case on the merits.
Further still, the state is asking for “a stay by October 1, 2023, at which point state officials and candidates must know whether the 2023 Plan’s districts will govern so election preparations can begin.” In other words, Alabama is asserting that, if given a stay, it will begin “preparations” to use the newest map, already found to be illegal by the lower court, for the 2024 elections.
A response from the challengers to the map was ordered to be submitted by 5 p.m. Sept. 19 — next Tuesday.
Trans rights are also being targeted
Alabama is also fighting against transgender people’s rights, as Republican Alabama Attorney General Steve Marshall defends — and is seeking to enforce — the state’s ban on gender-affirming medical care for minors.
After a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled that the bans are likely constitutional in August, the challengers announced that they would be seeking review from the full court, called en banc review.
On Monday night, the challengers filed that petition, asking the full court to hear the case. Essentially, the petition argues that the panel got Supreme Court and prior Eleventh Circuit cases about parental rights and equal protection law wrong, and the full court needs to rehear the case to fix that.
Specifically, the lawyers for the challengers wrote that they did so, first, because “the panel decision is contrary to [more than a dozen decisions] of the Supreme Court of the United States or the precedents of this circuit” — including nine Supreme Court cases — “and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court.”
Second, the lawyers argued that the full court should rehear the case en banc because “this appeal involves questions of exceptional importance” relating to parental rights and sex-based classifications that “apply to both males and females” and addressing whether sex discrimination is interpreted the same under the Equal Protection Clause of the Fourteenth Amendment as under Title VII’s workplace rules in the Civil Rights Act of 1964.
As I’ve discussed before, the decision to seek en banc review, in part, has the effect of keeping the case at the Eleventh Circuit. It means that the mandate has not yet issued in the case, the action formally sending the case back to the district court. At that point the district court would, in accordance with the ruling, vacate the injunction. Until the mandate issues, though, the injunction — issued in May 2022 — generally would remain in place.
Because of the en banc request, the mandate would not be issued until seven days after the court resolves the en banc request. (If the court grants en banc review, however, the panel decision is generally vacated, so there would be no mandate to issue.)
All of this means that the injunction remains in place, for now, in Alabama.
However, the opinion itself has already had effects on both of the other states within the Eleventh Circuit: Florida and Georgia.
In Georgia, the district court has allowed enforcement of that state’s ban on hormone therapy for now, citing the Eleventh Circuit decision in the Alabama case.
And, in Florida, a federal judge who previously ruled in favor of challengers to Florida's rules and law banning gender-affirming medical care for minors this week denied a request to enjoin enforcement of the part of the state’s new law limiting gender-affirming medical care for adults, in part based on the Eleventh Circuit’s ruling, which he wrote made the plaintiffs’ chances of winning their case “significantly lower.”
The brief ruling from U.S. District Judge Robert Hinkle, however, was extremely troubling on another front. “In any event,” he wrote, “the challenged statute and rules do not prohibit adults from obtaining treatments of the kind the plaintiffs seek.“ In two brief paragraphs, Hinkle concluded that, because plaintiffs did not show Florida banned them from hormone therapy or surgery, he would not issue a preliminary injunction halting the law’s enforcement. Expect more on this development.
Finally, there is one more move to discuss from Republican Alabama Attorney General Steve Marshall. Marshall is apparently very eager to enforce Alabama’s ban. So much so that he doesn’t even want to wait for the Eleventh Circuit to finish doing its job and issue the mandate in the case.
In a “time-sensitive“ filing at the district court last week, Marshall argued that the district court shouldn’t wait on the mandate and should stay the injunction — allowing Alabama to enforce its ban — immediately.
“A stay is needed to allow Defendants to enforce Alabama’s duly enacted law while the appellate process continues to proceed,” Marshall argued in the Sept. 6 request.
Ordinarily, the Eleventh Circuit would decide how it wants to proceed with the challengers’ request for en banc review, which then would result in a decision on what would happen with the mandate — and “Alabama’s duly enacted law.” Marshall does not explain why this case should be treated differently than any other case, beyond the fact that Alabama really wants to enforce this ban.
U.S. District Judge Liles Burke has taken no action on Marshall’s time-sensitive motion as of 5:00 p.m. ET Tuesday, Sept. 12.