Yellowhammer Times

A 1982 amendment to Section 2 of the Voting Rights Act (VRA) created an “absurdist burden on states,” the Public Interest Legal Foundation (PILF) argued in an amicus brief filed with the U.S. Supreme Court in an Alabama redistricting case.

In the case, John Merrill, et al v. Evan Milligan, et al. and John Merrill, et al v. Marcus Caster, et al., a lower court found that the state’s 2021 congressional redistricting plan violated what are known as the “Senate Factors,” in Section 2, six clauses Congress added to the law in 1982.

The PILF amicus, dated April 29, asks the high court to reconsider how the Senate Factors are applied.

“The Senate Factors must be reconsidered by the court,” PILF President J. Christian Adams said in a statement. “They transform Section Two into an unconstitutional intrusion into states powers to run their own elections. Statements made by private parties have been used against states. This is fundamentally unfair to defendants and should end.”

Senator Factor Six, which considers “whether political campaigns have been characterized by overt or subtle racial appeals,” was most in need of re-evaluation, the brief said.

“…the mere existence of a racial appeal in any context in a jurisdiction is now relevant evidence to aid a plaintiff in a Section Two case,” the brief states. “Indeed, there is no limit on Senate Factor Six and it results in a state’s map being subject to a Section Two challenge in part because of statements or political speech by private parties.

“Indeed, a defendant has no means to rebut a plaintiff presenting third party statements except to argue they are fictional or manufactured,” the brief continues. “All such evidence, otherwise, weighs against a defendant. Senate Factor Six should be re-examined by the Court because of the abusive and unfair burden on defendants.”

On Feb. 7, the high court issued an order staying the lower court's order striking down Alabama's congressional plan. The decision permits the plan to be used for the May primaries. The court did not rule on the merits of the case.