Thursday, September 21, 2023

Alabama's refusal to create a second majority-Black voting district is driven by an alliance with right-wing power broker Leonard Leo, of the Federalist Society

Steve Marshall and Edmund LaCour

Alabama's refusal to abide by a federal-court order to create a second Black-majority voting district is being driven by an alliance between state legislators and a dark-money network tied to far-right power broker Leonard Leo. As head of the Federalist Society, Leo is known for largely "picking" Donald Trump's appointees to the U.S. Supreme Court. Now, Leo is throwing his weight around in Alabama's Republican-dominated legislature, according to an article at Alabama Political Reporter (APR). Under the headline "Dark money: The backstory of Alabama’s redistricting defiance," Editor Bill Britt writes:

The Alabama Legislature’s open defiance of the U.S. Supreme Court’s ruling in Allen v. Milligan ordering the creation of a second majority-Black district baffled and infuriated the federal three-judge panel that initially ordered the state to redraw its 2021 congressional map. 

APR has now identified connections between Alabama officials who led the 2023 redistricting process — which disregarded the U.S. Supreme Court’s order — with far-right power broker Leonard Leo’s dark-money network, described this past week by Politico as “a billion-dollar force that has helped remake the judiciary and overturn longstanding legal precedents on abortion, affirmative action and many other issues.”

APR’s reporting shows the extent to which Alabama’s calculation to defy the Supreme Court was made not simply by state legislators in Alabama but has been driven by nationally connected political operatives at the center of the well-documented right-wing effort to reshape the composition and jurisprudence of the Supreme Court and to overturn the remaining key protections established by the 1965 Voting Rights Act.

Leo has been known for working behind the scenes, and that appears to be the case with his Alabama efforts. Reports Britt:

Despite the organization’s claims that it does not take positions on policies or nominations, former President Donald Trump famously stated that Leo’s Federalist Society had “picked” his judges, and all six Republican-appointed Supreme Court justices “were seated with major help from Leonard Leo,” who has come to be known as the “hidden architect of the Supreme Court.” With few exceptions, the justices Leo has ushered to the bench have reliably voted to permit the partisan gerrymanders and strict restrictions on voting access that have proliferated in recent years from red-state legislatures, which themselves work in tandem with — and sometimes under the direction of — Leo’s dark-money groups.

As APR reported on July 27, Alabama lawmakers working in conjunction with state Attorney General Steve Marshall’s office and Washington D.C. lawyers had “intelligence” that Supreme Court Associate Justice Brett Kavanaugh — who voted with the majority in Milligan just weeks ago to order the new maps under the statutory language — is open to rehearing the case as a constitutional challenge to the validity of Section 2 of the Voting Rights Act. 

The Alabama government’s briefs before the three-judge panel in September referenced a concurring opinion by Kavanaugh that questioned whether “race-based redistricting” can “extend indefinitely into the future.” Alabama further relied on arguments — also rejected by the U.S. District Court — that a subsequent U.S. Supreme Court decision this same term ending affirmative action in college admissions (called Students for Fair Admissions v. Harvard ) compels the Court to find that a state’s use of a map in which “race predominates” now violates the 14th Amendment’s guarantee of equal protection. As in Milligan, Kavanaugh filed a concurrence in Students for Fair Admissions, emphasizing the potential for time limits on race-related policies.

Kavanaugh appears to be a central figure in Alabama's efforts to dig in its heels on creating a second majority-Black district, reports Britt?

In addition, there now appears to be a significant connection between Alabama’s post-Milligan map redrawing process, Leo’s powerful national dark-money network, and Kavanaugh.  The tangled web of previously unreported ties centers around Marshall, Alabama Solicitor General Edmond LaCour — dubbed “the architect behind Alabama’s voting rights defiance” — and the D.C.-area law firm Consovoy McCarthy, the firm founded by William Consovoy, a now-deceased former clerk to Justice Clarence Thomas who represented Shelby County in Shelby County v. Holder. In Shelby County, the Supreme Court invalidated Section 4 of the Voting Rights Act and its vital preclearance provision, which protected against unilateral state changes to voting rights and maps in states that had a documented history of racial bias in administering elections in order to disenfranchise Black voters.

A review of Alabama’s July Legislative Contract Review Agenda shows that the Alabama Attorney General’s Office retained Consovoy McCarthy attorneys to “provide expert analysis, strategic advice, assist in legal research, and review and revise pleadings as needed” regarding an unnamed matter. Consovoy McCarthy has handled many high-profile cases assailing measures to redress racial discrimination on behalf of right-wing groups tied to Leo. For instance, Consovoy McCarthy has repeatedly represented the Honest Elections Project, an alias for The 85 Fund, a tax-exempt 501(c)(3) group closely tied to Leo, and it represented the Leo-connected dark money group Students for Fair Admissions in its successful challenge to Harvard’s affirmative-action program at the Supreme Court.

Reporting from Politico and the Washington Post has identified The 85 Fund (then called the Judicial Education Project) as the vehicle through which Leo coordinated the movement of up to $100,000 to Justice Thomas’s wife, Ginni Thomas, between 2011 and 2012, at least, and possibly continuing for years. The Washington Post noted “[t]he same year, the [Judicial Education Project] filed a brief to the Supreme Court in a landmark voting rights case,” in which Justice Thomas joined a decision in accordance with the Judicial Education Project’s brief. The 85 Fund has also been tied to Leo’s efforts to coordinate anonymously funded briefs to the U.S. Supreme Court in highly charged political cases.

The presence of the Consovoy McCarthy law firm means connections exist between Alabama's current defiance on redistricting and efforts in the state to gut the Voting Rights Act via the Shelby County v. Holder case. That does not sound promising for the state's Black voters, Britt adds important details about ties between Leonard Leo's groups and key Alabama officials in the redistricting matter:

Among the Consovoy attorneys listed on the state contract disclosure is Tyler Green, one of three trustees on a billion-plus dollar trust fund helmed by Leo, which helps administer Leo’s largest dark money operation called “Marble Freedom Trust.” Green, who clerked for Justice Thomas and formerly served as the solicitor general of Utah, is also a contributor to the Federalist Society, which Leo helms as co-chair of the board. 

The Attorney General’s Office contract lists “Edmund LaCour, Solicitor General” as the attorney assigned to work with Consovoy McCarthy. LaCour is also a Federalist Society contributor and previously clerked for Eleventh Circuit Judge William Pryor, a close ally of Leo and Justice Thomas, and a vocal Federalist Society defender. 

LaCour’s wife, Alice Shih LaCour, is also a Federalist Society contributor, and her Federalist Society profile notes that she “served on the confirmation teams [at the Justice Department] to “elevate Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court.”

The LaCours also have been involved with Catholic far-right organizations with close affiliations to Leo. They are both in their 30s with law degrees from Yale.

How strong are the LaCours' connections to the Catholic far-right and its affiliations with Leonard Leo? Britt's reporting suggests they are quite strong:

Edmund and Alice LaCour were fellows with the Opus Dei-affiliated Leonine Forum, where Leo is a board member. They also have been involved with the Catholic Information Center, a hub for Opus Dei—a small, ultra-conservative and controversial Catholic community—in the nation’s capital and which has given Leo its highest award. Both LaCours gave tribute remarks at the Catholic Information Center’s John Paul II New Evangelization Award Ceremony in 2017. 

A January 14, 2019, article from the Washington Post stated that CIC members and leaders include high-profile figures like Leo and that CIC serves as a meeting place for influential operatives in Washington, D.C., leading it to have “an outsized impact on policy and politics.” 

Alice LaCour’s work on Kavanaugh’s confirmation, and the LaCours’ connections to Leo and the Catholic far-right, have not been previously reported.

Alabama Attorney General Steve Marshall also has ties to Leo, writes Britt:

Attorney General Marshall has connections to Leo through the Republican Attorneys General Association (RAGA) and its affiliated Rule of Law Defense Fund (RLDF), where Marshall has been a director since 2020. Leo’s groups are the largest known funder of RAGA since its launch as a separate 527 group in 2014, as The Center on Media and Democracy and True North Research have documented.

RLDF/RAGA is notorious for its robocalls encouraging participation in the rally before the Jan. 6, 2021, insurrection at the U.S. Capitol.

Both organizations have received significant funding from Leo’s network. According to IRS filings, The Concord Fund (also known by its alias, the Judicial Crisis Network), another of the core organizations Leo uses to raise and allocate funds) has provided more than $1.9 million to RLDF and $16.5 million to RAGA in recent years. 

Marshall is a contributor to the Leo-helmed Federalist Society and delivered the opening speech at the Federalist Society’s 2023 Alabama Chapters Conference, which also featured LaCour.

Speaking of Marshall and RAGA, Marshall reportedly accepted a campaign contribution from RAGA in February 2017 that officials from both political parties said violated state law. The Alabama Ethics Commission eventually cleared Marshall of wrongdoing.

Former Luther Strange aide Jessica Medeiros Garrison, the subject of numerous posts here at Legal Schnauzer (see here, here, here, here, here, and here), once was executive director of RLDF/RAGA, which suggests she, too, has (or had) ties to Leo -- not to mention her ties to the Balch & Bingham law firm, which was at the heart of the North Birmingham bribery scandal involving Southern Company and its affiliates, such as Alabama Power.

On top of that, Garrison had a business relationship with a one-time Florida resident named Erik Davis Harp, who was indicted as a kingpin of a sports gambling ring that reportedly generated $20 million a month. The gambling ring had ties to organized crime, including the Gambino and Genovese crime families. That suggests Jessica Medeiros Garrison, via her business relationship with Erik Davis Harp, had at least roundabout connections to organized crime -- as did Luther Strange, via his political relationship with Garrison.

All of this could cause a reasonable person to conclude that the Rule of Law Defense Fund's title is not meant to be taken literally. Where is this headed in regards to Alabama's defiance on the redistricting issue? Britt has ideas on that question:

These previously unreported connections between Alabama officials who led the state’s 2023 redistricting process and various players seeking to reshape America may be the reason Alabama’s Republican-controlled legislature gambled on a rehearing before the U.S. Supreme Court in hopes their inside intelligence was right in believing Kavanaugh would change his previous vote in Allen v. Milligan.

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