Alabama is appealing Congress’ ruling on the map to the U.S. Supreme Court

Alabama officials filed an emergency motion with the U.S. Supreme Court on Wednesday, asking justices to block a lower court’s order requiring the state to utilize a court-ordered congressional map in the 2026 midterm elections.

The report was received the day after a panel of three judges upheld the earlier ruling that the congressional map adopted by the Legislature in 2023 was intentionally racially discriminatory and unconstitutional under Section 2 of the Voting Rights Act.

In a 36-page motion, Alabama Attorney General Steve Marshall, who is representing Secretary of State Wes Allen in the case, argues that the state should be allowed to utilize the 2023 map in this year’s elections so that “Alabama is not prevented from reusing its statutory 2023 Plan based on a decision that contradicts Callais, manipulates the Purcell Principle, and violates the Constitution’s promise of equal protection for all.”

Deuel Ross, an attorney for the plaintiffs with the NAACP Legal Defense Fund, said Wednesday afternoon that there is no time to implement the recent map.

“Alabama’s 2023 plan is a deliberate, race-based attempt to deny Black people fair representation in Congress,” he said. “We hope that the Court will do the right thing by leaving a map of remedies in place and avoiding further confusion ahead of the 2026 elections.

Marshall asked the Supreme Court no later than June 1 at 10 a.m. with a motion to issue a decision to allow the state to administer the 2026 elections under the 2023 map. Superior Court Judge Clarence Thomas gave the plaintiffs until Monday at 4 p.m. to file a response to the motion.

Alabama Elections Director Jeff Elrod testified Friday that voter rolls will be unlocked sometime between Wednesday and June 2.

Currently, voters are assigned to congressional districts on a court-ordered map that was in effect for the 2024 election and the May 19 primary election. Elrod testified that reassigning voters typically takes “several months” and that the expedited schedule could lead to voters being assigned to the wrong precincts and receiving incorrect ballots.

Although a three-judge panel found the state’s map racially discriminated against, the state argues the map was drawn with partisan intent.

“In addition to citing traditional districting rules and political goals, lawmakers defending the 2023 Plan explained that it was ‘drawn in a partisan manner’ ‘to the Republicans’ advantage’ and that it gave Republicans a better ‘chance to win,’” the briefing said, citing lawmakers from the 2026 special session.

The judges said in their Tuesday decision that evidence gathered over years of proceedings did not indicate such an intention. They also said that everything that was said during 2026 Special Session was irrelevant to the redistricting issue because the session was about the special primary mechanism, not redistricting.

State officials in the lawsuit argued that they opposed a lower court’s order requiring redistricting without racial discrimination because they did not want to racially discriminate and divide communities of interest such as the Black Belt and the Gulf Coast.

“Worse still, the district court doubled down on its constitutional position that has no place in our constitution: that Alabama intentionally discriminated by refusing to intentionally discriminate. The district court accused the state of denying an ‘opportunity’ to minority voters and ‘diluting’ votes, without ever once acknowledging that Callais itself had overturned the district court’s findings before Callais on this issue,” the report says. “It cannot be that the state’s only constitutional map on which this cycle of change is outlined electoral districts, was one in which white voters are drawn into white districts and assigned white representatives, and black voters are “drawn into ‘black districts’ and assigned ‘black representatives,’ a pattern ‘repulsive’ to the Constitution itself.”

The three-judge panel said in its Tuesday order that it was not aware of any case “in which the Legislature — faced with a federal court ruling finding that its election plan unlawfully diluted minority votes and requiring a remedy providing an additional opportunity district — responded with a plan that the state admitted did not include that district.”

Marshall said Wednesday afternoon that the three-judge panel required the state, not the Legislature, to sort voters by race.

“The degree of confusion over the maps Alabama uses to draw congressional districts appears to concern the three-judge panel, not the voters. The fact that our state’s conservative electorate has conservative representation is a democracy, not an attack on it,” Marshall said.

He also said the state should have a congressional map with seven Republican districts, something other Republican lawmakers and officials have advocated for since Callais ruling in April,arguing that it reflects Alabama voters and is consistent with the Supreme Court ruling in Callais.”

Alabama’s electorate is racially polarized: white Alabamians, who make up about 64% of the population, vote Republican, and Black Alabamians, who make up about 27% of the population, vote Democratic.

The three-judge panel’s preliminary injunction requires the state to utilize its map during the 2026 elections, but it expires after the Legislature adopts a recent map. If the Supreme Court agrees to a stay, the state would have legal discretion to redistrict, although districts are typically drawn once every 10 years after the U.S. Census. But a wave of mid-decade redistricting for partisan gain swept the nation.

In the Callais decision, the Supreme Court held that intentional racial discrimination did violate Section 2 of the Voting Rights Act, but redistricting on behalf of a party did not. Texas, California, South Carolina, Tennessee, Florida AND Virginia have either redistricted to give either party more guaranteed congressional seats in the 2026 midterm elections, or are in the process of doing so. Georgia will also redistrict, but not before the 2026 midterm elections.

Marshall also asked the Supreme Court for an administrative stay as soon as possible so the election can proceed as planned. Is special primary election set for August 11 on the 2023 map in the 1st, 2nd, 6th and 7th congressional districts with 21 qualified candidates.

Votes cast in these precincts in the May 19 primary election were invalidated, so an election must be held in these precincts. It is not clear on which map the elections will be held.

Gov. Kay Ivey changed the state’s special primary election calendar Wednesday afternoon to give Allen more time to certify candidates. The original deadline was set for Friday, but Ivey moved it to June 3 “to further ensure that the state will remain in the best position if it receives a favorable ruling from the U.S. Supreme Court.”

“I am hopeful that the Supreme Court will quickly give Alabama a favorable answer so that we can proceed to a special primary election on August 11 using our 2023 congressional map,” Ivey said in a statement.

Ivey did not comment on calling a second special session to redistrict seven Republican congressional districts.

National Support

On Wednesday afternoon, John Sauer, the U.S. attorney general, filed a statement in support of Alabama officials urging Thomas to agree to stay. Sauer supported Marshall’s claims that the redistricting efforts were aimed at partisan gains rather than racial discrimination.

“Insisting that the state pursue its partisan goals in the face of its prior Section 2 position in no way makes those partisan goals racially discriminatory,” Sauer wrote. “In any event, Alabama made a good faith effort to correct the differential treatment of two communities of interest – the Gulf Coast and the Black Belt – such was the Court’s pre-Callais finding in Allen v. Milligan that the earlier map violated Section 2. These reasonable efforts to comply with the Court’s decision cannot reasonably be construed as racial discrimination, particularly under the presumption of good faith.”

In 29-page synopsisSauer blamed the district court for lack of time. The District Court was instructed by the Supreme Court to reassess its earlier ruling, with which the Supreme Court agreed, in lightweight of the Callais judgment May 11. An expedited schedule for motions and hearings was set, and a preliminary injunction was granted on Tuesday, less than four weeks after the Supreme Court issued its ruling in Callais.

“The court excused this clear violation of Purcell by arguing that Alabama created a timing problem by choosing to use the 2023 map only after Callais, even though the state acted as quickly as possible when the court lifted the earlier order in light of Callais,” Sauer wrote.

Both the three-judge panel and Supreme Court Justice Samuel Alito, who wrote the Callais opinion, say the Alabama and Louisiana cases are different. Sauer disagrees, writing that Alabama’s goal of protecting officials is the same tactic used in Louisiana under Callais.

“Alabama’s Republican-led state legislature had an obvious partisan interest in maintaining a 6-1 Republican map, even though it might have even more strongly preferred a 7-0 map. By forcing Alabama to use instead a 5-2 map that ousted a Republican incumbent in 2024, the district court subordinated the state’s partisan goals,” he wrote.

This story was updated at 4:23 p.m. to include a statement from Deuel Ross, attorney for the plaintiffs with the NAACP Legal Defense Fund. It was later updated at 4:39 p.m. to include details that the U.S. attorney general had filed a statement in support of Alabama officials. It was later updated at 4:44 p.m. to correct that plaintiffs had until Monday to respond at 4 p.m., not 1 p.m. It was later updated at 5:31 p.m. to include a statement from Gov. Kay Ivey.