This is an opinion column.
The kid needed to go to the bathroom.
He didn’t care that he and his grandfather were on the steps outside of the U.S. Supreme Court in Washington, D.C. on a drizzly day last October.
He didn’t care that his mother — an attorney, former high-school English teacher, and daughter of Indian immigrants with a passion “for the rights we are afforded as citizens” — was inside trying to wrangle two more tickets so the seven-year-old and his grandfather could join her mother, husband, and their nine-year-old daughter inside to witness mom arguing her first case before the nation’s highest court. She and the legal team at the firm they founded just two years ago to focus specifically on voting rights cases were there, at the end of a five-year journey, to prove Alabama’s too-long-drawn congressional districts were racist, that they defied Section 2 of the Voting Rights Act, that they diminished and diluted Black voting power, and thus should be deemed unconstitutional.
The kid didn’t care. He needed to pee.
Abha Khanna recalls with a laugh the moments that almost overshadowed the momentousness of the day. “We were finally able to secure seats, and as soon as my son saw me, he said he had to go to the bathroom,” she said. “That’s the only time I’ve used my privilege. We ran through security!”
To relief.
Khanna was the lead plaintiff attorney in Allen v. Caster, the case that was combined with Allen v. Milligan. and argued before the Supreme Court. She was home in Seattle on that day in June when the court announced its stunning 5-4 ruling that the state’s districts were discriminatory and must be redrawn.
“I was in the middle of making breakfast and lunch and getting kids out the door when my phone just blew up,” she shared recently. “I just kind of threw the box of cereal at the kids and said, ‘We just won our case.’
“They know very little about it. They know I go to work. But [by being at the Supreme Court] they got a real lesson in what this case is about — why I’m arguing it, why I’m so busy. Why it’s important. So, they actually understood, I think, and appreciated that this was a victory for all of us.”
She won’t be in Montgomery on Monday when the Alabama legislature convenes for a special session with the sole goal of agreeing on a congressional map that satisfies the plaintiffs and the court. One that gives Black voters, who comprise almost one in three voters in the state, a bona fide say in who represents them in Washington.
She won’t be there physically. Yet Khanna will be present in the proposed maps the plaintiffs have presented to lawmakers, which create two majority-minority districts among the seven. Not just one. “I’ll certainly monitor from afar,” she said. “The legislative defendants have been solicitous of our proposed plan. I appreciate that the legislature has invited our opinions as plaintiffs about what the remedy map should be. I’m hopeful they will listen.”
Born in the U.S., Khanna grew up in northern New Jersey and remembers she and her older brother watching their parents raise their right hands to become American citizens. “They imbued in us a real appreciation for the rights we are afforded as citizens and that we can’t take those for granted,” she said. “We have to continue to fight for them. Particularly for those of us who are given so much—this education, these opportunities—for us not to make use of them would be a shame.”
Khanna’s parents encouraged disagreement on political matters around the dinner table, perhaps nurturing a career she had not yet imagined. “There was always very lively debate,” she says. “That was welcomed. When my husband first joined the fold, he was like, ‘Why are you guys always fighting?’ I said, ‘We’re not fighting; that’s dinner.’”
She had a plan: Go to college (she majored in psychology and minored in English), teach high school English while applying to grad schools, earn a Ph.D. in English literature, and become a college professor.
“Just keep putting one foot in front of the other,” she said. Until the plan stopped working.
“Teaching English actually brought me back to the law. I loved writing. Turns out what I enjoyed the most was the engagement—seeing a student get excited about a book, about learning how to craft the perfect sentence or paragraph and wanting to be better.
“I thought, ‘Hmm, am I ready to spend the next decade of my life in this Ivory Tower writing things I might find interesting but might not make the biggest impact? Then I surveyed my options, and I knew law school was always in the back of my mind.”
Along with another plan: To remain in D.C. and find her way to the Department of Justice.
That plan got scrapped, too, when her husband, also an attorney, got a job shaping education policy with the Bill and Melinda Gates Foundation in Seattle. Khanna already had a clerkship in the nation’s capital, but “after much debate” applied for a clerkship in their new city.
“It ended up being one of my best years,” she said.
Redistricting is a peculiar niche, requiring a scientist’s thirst for research and minutia with a healthy helping of monk’s patience.,” Khanna never considered it until she was approached by a colleague, Marc Elias, at a large firm in Seattle where they both worked.
Elias asked: Do you want to become an expert in redistricting?
“‘Sure’,” Khanna remembers responding excitedly. “I’ve always been a nerd, so I spent all my free time reading every case there was to learn. All that happened because I ended up in Seattle. Who knows how direct it would have been to do the kind of work I now do had I followed what I thought was the normal plan.”
Khanna began working on redistricting cases 13 years ago, not long after she started practicing law — ”So I was on the ground floor,” she said. “Naively,” she thought cases that began in 2010 would be over by 2012. “Of course, we were litigating throughout the rest of the decade. Every election has the ability to violate someone’s voting rights.”
In 2019 Khanna and her firm came to represent a group of plaintiffs in the lawsuit that proved to be the seed that bore historic fruit. The lead plaintiff was Lekeisha Chestnut of Mobile. During her testimony, Khanna said, “There were tears across the courtroom, at the counsel table. We ended up not winning that case based on this procedural issue, timing, and mootness. Not because of the facts, not because of the law. While that was disheartening, it meant we lived to fight another day. So, there was no question that if Alabama was going to draw the same map and do the same thing it’s been doing since 1992, we were going to bring that lawsuit again and we were going to see this to the end.’
Khanna said the attorneys prepared Chestnut for an unfavorable outcome, yet she was not prepared for the young woman’s response.
“She said, ‘I got up in a courtroom and I told my story,” Khanna said. “’A court reporter took it down, and all these people heard about my experience.’ That’s what the case gave her. [Allen v. Milligan, in which Chestnut was also a plaintiff] is all about giving people who haven’t had a real voice in electoral politics a voice. For her just the idea that somebody was listening and caring and working and fighting was huge. That was a victory.”
Khanna‘s day at the Supreme Court, once her son was relieved and settled, was the second day of hearing arguments for Justice Ketanji Brown Jackson, the first Black woman to sit on the high bench. As is now widely known, at one juncture, Jackson tore into—judiciously, of course—Alabama Solicitor General Edmund LaCour after he deployed a mouthful of hazy race-speak to argue that it was perfectly right for the state’s congressional map to be drawn with just a single majority-minority district among seven.
As Jackson’s scolding unfolded, Khanna sat back. “She just had this moment where she just kind of schooled all of us: Wait, wait wait. Let’s talk about equal protection—what that was actually about. Were we talking about colorblindness at that time or were we trying to right an egregious wrong that was very specifically about race, about one racial group? Nobody was talking about like post-racial, colorblind, blah, blah, blah.”
“For that voice to be heard on the bench by the other justices. Even more importantly, now they’ve got live streaming, so she’s not just speaking to eight other justices or to litigants. She’s speaking to a lot of people who have waited and are trying to understand the Supreme Court has the power to do a lot of things that affect our day-to-day lives.
“To have that voice on the bench speaking to so many people was incredible. I was so proud to be in the room, just feet away from her.”
Khanna almost felt for Edmund. “As a lawyer, nobody wants to be in that position,” she said. “I have empathy for that. At the same time, we need to be held to account for positions we take in the courtroom. Some of the arguments Alabama was advancing were really offensive. Not only were they wrong on the law, but they were really offensive when it comes to what is the import of the Voting Rights Act and what kind of wrongs Is it meant to remedy. So, the dressing down was appropriate, respectful; it needed to be said.”
The court imposed a July 21 deadline for the state to redraw the map, or the court will do it.
“I’m hoping we can finish this process with a fair and meaningful remedy by the deadline such that we can end this and move forward to the benefit of everyone,” said Khanna. “This is a win certainly for our clients and plaintiffs. It’s also a win for Alabama.
“I hope they just take the W, draw a new map, make it work realize that 2023 is a different time than 1965 and 1992—that the state is going to be a much richer political community.”
Now, that would be a true relief.
