Dark money: The backstory of Alabama’s redistricting defiance

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. 

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. 

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. 

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. 

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 outsize 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. 

Attorney General Marshall also 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 over $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. 

Marshall and LaCour chose to not respond to requests for comment. 

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.