'If You Can Keep It': The Supreme Court And The Voting Rights Act

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0:22Last week in a 6-3 ruling along ideological lines, the Supreme Court dealt a major blow to the Voting Rights Act of 1965. That's the landmark civil rights era law designed to prevent racial discrimination in voting. The law was passed to unravel Jim Crow-era policies that limited or blocked Black Americans' access to the ballot. The decision in Louisiana v. Calais struck down Louisiana's congressional map as a, quote, unconstitutional gerrymander. But the ruling goes a lot further. It effectively rewrites the rule for how the Voting Rights Act can be used to challenge discriminatory maps, making it much harder to do so going forward.

1:01The latest in a string of rulings, rendering the Voting Rights Act all but moot. I'm Jen White. And I'm Todd Zwilek. You're listening to the 1A Podcast, today on If You Can Keep It, redistricting across the U.S., and how this hugely consequential ruling changes in election season already in full swing. Later on in the hour, we're going to hear from Congressman Cleo Fields, the Democrat who represents Louisiana's 6th congressional district. That's the majority Black district that reaches from the northwest corner down to the center of Louisiana. With a Supreme Court ruling, Louisiana's governor issued an executive order to suspend the state's May 16th primary and to redraw the map in a way that could eliminate this majority Black district entirely.

1:43But first, a quick break. We'll be back in just a moment.

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2:31If you missed making a donation during public media giving days, do it right now. Show your support for public radio that is by the people for the people at donate.npr.org. And thanks. Welcome back to the 1A podcast. You're listening to our weekly series. if you can keep it. Let's get right into our conversation and meet our guests. Joining us from Sedona, Arizona is Kareem Creighton. He's vice president of the Washington office of the Brennan Center for Justice at NYU Law. He's also a law and political science scholar who tracks how redistricting shapes minority representation in the U.S. Kareem, welcome to the program.

3:08Thank you so much for having me. And also with us, Carrie Levine, editor-in-chief of VoteBeat. That's a nonprofit newsroom covering elections and voting across the U.S. She joins us in studio in Washington. Carrie, welcome back to the program. Thank you, and thanks so much for having me. Carrie, summarize last week's court ruling and the decision of the majority opinion of the court. Right. So the ruling was about the Louisiana congressional map, as you said, and it specifically was about a key provision of the Voting Rights Act Section 2, which has long empowered voters and candidates of color.

3:42And so the long-term impacts of this could be profound in terms of the representation of communities of color across the country. This has long been something that was a tool that could be used to empower those voters and to create room for those candidates who represent those communities. And so the prediction, several analyses have predicted that the number of, for instance, black representatives in Congress will dramatically go down because of this ruling. though I think there's still some unpredictable things about how it's going to play out. The court in this case didn't outright strike down the provision, which I think some people had anticipated as a possibility.

4:21But it did say that Section 2 is violated, quote, only when the evidence supports a strong inference that the state intentionally drew its districts to afford minority voters less opportunity because of their race. And so that's what Justice Alito wrote. That's a much higher bar. And in a dissent, Justice Elena Kagan wrote that today's decision renders Section 2 all but a dead letter. And so that's kind of where that decision leaves us. And Kareem, just walk us through what Section 2 actually did and what it will no longer do after this ruling. Sure. Well, Section 2, by many, has been described as the sword of voting rights enforcement.

5:02and essentially allows, at this point, individual plaintiffs or the Justice Department to go into court when they think that a plan or a, in this case, for redistricting map, that has either intentionally or through its effect essentially diluted their vote, prevented them from exercising equal opportunity to elect candidates. The distinction here that has been seriously undercut by this opinion is the effects claim, that even if you don't have evidence of intent, and we can get back to that later, there's a framework that Section 2 has used basically for about 40 years that allows plaintiffs to go in and prove their case.

5:43It's an exacting standard. Essentially, you go in, you have to show that the map that has been drawn essentially eliminates a community that is sufficiently large and compact, that is identifiable in terms of its politics, and that is subject to what we call racially polarized voting. That in the way that the map that's being challenged operates, that those voters in the community, let's just take African-Americans as an example, are less likely over a series of elections to get their preferred candidates elected because white voters generally don't agree to the same candidates that African-Americans do.

6:25And when there's racially polarized voting and the other circumstances are demonstrated, the court then is allowed to make a judgment as to what the best remedy is. And in many cases, the remedy has been creating a district that has something like a majority of the plaintiff's class, in this case African-Americans, so that they can elect candidates. So that's been the rule that has existed basically for about 40 years. This decision essentially undercuts that entire structure by saying, even if you can show what looks like polarized voting, you now have to demonstrate that it's not something like politics that's explaining the difference or partisanship.

7:03And that is very difficult in the South because everybody understands that race and party are very closely aligned. And I think Justice Alito would have it that those two things aren't the same. And I think the lived experience of everybody dealing with the Voting Rights Act shows that partisanship in many ways is, if not totally driven by, heavily shaped by the attention to race. Well, Ben Acconiaga is the Louisiana Solicitor General who argued to strike down the state's majority black congressional district, the one we're talking about. Here he is speaking outside the Supreme Court after all our arguments back in October.

7:42If you know Louisiana's story, you know that for the past couple of years, we have been struggling to find a map, a congressional map that satisfies the court's precedence. It's been extremely difficult. We argued it once earlier this year. We're back here. And what I told the court at the podium is, look, at the end of the day, we really need clarity. The states need clarity on how they're supposed to comply with the Voting Rights Act and with the Equal Protection Clause. So, Kareem laid out the legal reasoning that Justice Samuel Alito, who wrote the majority opinion, sort of how the legal reasoning goes here.

8:17Kerry, the ripple effects of the court ruling here have been significant. They've been swift. Alabama, just a day after the decision dropped, the attorney general there, Steve Marshall, and the secretary of state there, both Republicans, filed emergency motions to lift injunctions, blocking their 2021 map. So jurisdictions all across the South are now moving to get rid of districts that before fell under Section 2 of the VRA. Give us a sense of just how quickly districts could fall ahead of the midterms here. Right. So that's a really complicated question at a chaotic moment. I think one thing is, in our reporting, I think what we've realized is states are going to move, as Alabama is, to try and redraw before the midterms.

9:11It's very likely that some of that won't be possible. As you point out, Alabama's options here depend on some more court rulings and some things that are in play. They're going to need a court to say that they can do this in some cases. In other cases, states have already held their primaries. People have already voted. Filing deadlines have passed. Candidates have filed to run under the current district boundaries. In some cases, early voting is underway. Now, what we saw in Louisiana was as early voting was starting, Governor Landry, as you pointed out, issued an emergency declaration, said that votes for House candidates on this ballot will not count and there will be another primary for House candidates after this redrawing happens.

9:57There's currently litigation over that, whether he can do that. Either way, I can tell you that what's happening right now is incredibly confusing for voters. I mean, Louisiana voters are looking at ballots with House candidates on them, but getting told that if they cast votes in those races, those won't count and there'll be another primary. This is hugely confusing. And some have already voted. Some have already voted. And this is hugely confusing to voters who have done nothing at all wrong, show up and get handed ballots, right? Carrie, what does it also mean for those charged with seeing election processes actually happen and happen efficiently for voters?

10:33So that's a great question that's really important to us at VoteBeat that we cover closely. And the answer is this is an enormously difficult question. When people file to be candidates, they have to meet requirements. Election officials have to make sure that that happens, that these people should go on the ballot. And in addition to that, ballots have to be designed, proofed, printed, and there have to be a bunch of different ballot styles with the right races on there for each voter. Voters have to be assigned to the right district so that they get the right races on their ballots. This is a hugely complicated process that does not happen overnight.

11:10Complicated and expensive. And the other thing is I haven't heard anyone from Louisiana talk about how they're going to pay for this. We got this message from one of you in Alabama. We drew this crazy map that nobody likes that puts one side of the state in the hands of the other side of the state. They did that on purpose. They could have drawn a map that was contingent and would have given blacks their fair vote. It's just racism. Racism. It's just around our country. Still ahead, we hear from a Louisiana congressman affected by the Supreme Court's decision.

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12:36We've been hearing from many of you. Here's Steve from South Carolina. I'm Steve. I live in the greater Charleston, South Carolina area. I'm pretty sure that even though I religiously vote, my vote has not necessarily mattered due to, relatively speaking, a gerrymandered set of districts in the state of South Carolina. That doesn't mean I'm not going to vote. It doesn't mean I'm not going to be involved and express my opinion. It just doesn't mean in practical terms that my vote actually counted toward a better outcome for the country. Now, South Carolina's congressional map was redrawn in 2022.

13:17It's faced intense legal battles in recent years. Carrie, what's important to know about that state as we try to understand the nationwide redistricting story today? I think what I'd say about South Carolina is that it's representative of some of the states in the South that have voting rights districts that have been incredibly important and meaningful to some of the residents there. And so it is a state whose primary has not happened yet that is still in a position to redraw and where these redistricting battles have just been really hard fought. And there's substantial questions of representation and how well the map represents the entire voting public.

13:50And so we have already around the country been through an unprecedented cycle of midterm redistricting, right, at a time when that does not usually happen. and unprecedented numbers of states have redrawn their maps. Six, I believe, including Florida, have voluntarily redone so this cycle, which is not something that has happened in modern times. And the effect of that is there are fewer competitive districts, right? And these maps are, in most cases, not all, but in most cases, less fair by all of the kind of neutral standards that maps are evaluated at. And so depending on what South Carolina does, these are the stakes here.

14:32So, Kareem, from where you sit, to talk a little bit more about what Kerry is mentioning, there was a redistricting war that was going on before the Calais ruling that we're talking about, before the dilution of black voting power in Louisiana and the South. Of course, Texas started it. Donald Trump started it when he asked Texas Republicans to give him five seats. They did. Then Democrats in California responded. And now we're off to the races. So from where you sit, where are we at in terms of representation and people's votes counting heading into the midterms? Well, it's important as we talk about this to distinguish the discussion about partisanship as it's driven, as you describe, the fight that has started by the White House asking Texas to jump into the fray mid-decade and all the other states pushing back from the conversation that began with the Calais decision, which really is about racial fairness.

15:35And while there is a connection between the two, I think unfortunately the Calais decision conflates it. But where are we right now is a really complicated question. I think after Virginia had its public ballot measure presented to the people and narrowly passed it to change its districts, I think most people view things as more or less at a kind of standstill. So there was a lot of effort put into fighting in state legislatures to get these new districts adopted with all the confusion and chaos that it likely will lead to for voters. And basically the numbers are pretty much even. However, now that Calais is on the books, I think there are a lot of states that are looking at this.

16:20And they're probably also looking at the nation's politics at present. And I think they're trying to get an edge wherever possible. So we won't know for all the legal reasons that were mentioned earlier where this is going to land. But I think at present, I think everyone is sort of being energized to act largely because of the interest in having, I think, an outsized influence in Congress. And we'll just have to see, you know, after all the legal wrangling is over where things end. Well, Karim, I want to pull on this thread a little bit because you said you think people are conflating the Calais decision with this larger push to redistrict.

17:00And why do you think it's important to separate the two? Well, it's important because the Voting Rights Act itself was always viewed as a bipartisan piece of legislation that was getting at something larger than partisanship. It was trying to make good on America's commitment, long delayed, to give meaning to the 14th and 15th Amendment, that people should be able to have, regardless of race, a meaningful and equal vote cast, which would include the ability to be represented. And it's important to note, as much as, again, this is by some being viewed through a partisan lens, the last time the Voting Rights Act was reauthorized was in 2006.

17:40And no one less than George W. Bush, not viewed as the most flaming liberal on the planet, and a Republican Congress all authorized that act. It had been viewed as a consensus view of the American public. It is unfortunately now, partly because of our politics at present, but also because I think of some unfortunate misreasoning offered by Justice Alito has been folded into a partisan framework. And I think in a very unhelpful way, most unhelpful with respect to the Voting Rights Act, to the very communities that the Voting Rights Act was designed to support. I'm also curious to hear from you, Keri, what you make of the speed at which the Voting Rights Act has been really torn apart.

18:26I did a little math and realized that my oldest siblings were born before the Voting Rights Act passed. So this is not a law that's been on the books for generations and generations. This is still, in the larger scope of history, a relatively new law. That's such an interesting point. And I think we've seen the nation change around the law and the way it thinks about these issues at an incredible speed. And I think that there's more change yet to come. I think one thing I would say to that is Justice Alito's decision really made me think a lot about a previous decision that the court had made on redistricting in a case called Rucho v.

19:14Common Cause in which the court essentially said, you know, federal courts really can't be deciding. and Kareem would, I think, put this more elegantly than I would, but federal courts really can't be deciding when partisan gerrymandering crosses the line into too much partisan gerrymandering. Like partisan gerrymandering is distasteful and we don't love it, but we can't really step in and start arbitrating it. And I thought that the decision that Justice Alito wrote really treated partisan districting decisions as if they were a much more legitimate reason to draw a district line. It didn't treat it in quite the same distasteful way as the court had in Rucho.

19:55It was recognizing it almost to my reading as if it was a legitimate sort of thing for lawmakers to do, a legitimate reason for them to have. And so it kind of elevated that. And I thought that it was somewhat reflective of the times that we lived in. To your point, I think about the speed at which this law has had its life cycle has come to this point. I think that we're seeing the evolution of our thinking about a lot of things as a society and how that's shifted over time in these decisions and in how this law is being interpreted by the court. Kareem, anything to add? Yes, thank you. I appreciate the point about partisan gerrymandering.

20:37I, in a previous job, was very intimately involved with trying to present to the court an argument that it should act. It chose not to. But in fact, it has not just, I think, allowed it to be a legitimate interest. It is incentivized in Calais the attention to partisanship as a cure-all. That is, the concerns about race discrimination are less important than a state policy that says we are, let's just say, Republicans and we like Republicans. And if we want to have more Republican districts and the cost of that business is that we ignore concerns by African-Americans because they aren't Republicans, so be it.

21:15That has to be a very anemic understanding of what the Voting Rights Act was intended to do. But for this court that purports to be standing outside of the space of partisanship, they do a lot of work that seems to encourage it. And that's really unfortunate. Well, we're hearing from lots of you. Jay emailed Oklahoma City had a Democratic representative for two years in 2019. The Republicans got to redraw the districts in 2020 and split the city into multiple districts, diluting the vote and forcing the Democrat out in the next election. All our representatives are Republican now, which means they can't squeeze any more red out of this stone.

21:49And David in Ohio emailed, I live in a one-party county in a different party-controlled state and country. I can and always vote. However, the partisanship mostly keeps me from voting for who I want through the lack of instant runoff or ranked choice voting. Also being forced to choose one party in a primary. The gerrymandering means that the primary results almost always lead to a winner in the general elections. Kareem, we've been hearing from so many voters. Jen just gave voice to several of them there. We heard from Steve earlier from South Carolina who says, yeah, I'm going to vote, but I've been convinced for years my vote doesn't mean anything in this gerrymandered state.

22:27Can you talk about the cost of that calculation by voters, the cost to democracy, essentially that politicians now are choosing their voters instead of voters choosing their politicians? Absolutely. You know, we talked earlier about the monetary costs, and they are significant to jumping back in the middle of a decade to, you know, organize these districts. But the cost to voters, I think, is really the thing that is the most dangerous as much as the financial cost is significant. You know, it's important to remember, and particularly in the South, it is the growing part of our country. The engine of growth in this country is in the south, broadly defined, going all into the west, into the Sun Belt.

23:13But in those areas, all of the growth is like 85 or so percent of that growth is communities of color. And these are the very communities that are being fenced out because of the Calais decision. The danger is that those really heartbreaking concerns that are being expressed from the calls that you're hearing from, and I've heard plenty of it on my own, they will eventually, because of this growth, become a majority of the population. And when a majority of the population feels like, A, I can't vote for whatever reason, I'm being intimidated, the rules that are set up don't get me the candidates that I would prefer, or any number of the other things.

23:54I'm confused and I get sent to the wrong polling place. If a majority of the people in a society don't feel like the democratic experience of voting is an important one or even a meaningful one, you can call that a lot of different things. But I don't think you can fairly call it a democracy. So there's an existential danger if we get to the point in many of these states where a majority of the population is unable or, for that matter, just essentially disincentivized from engaging in the core notion of politics. This isn't just about the D's and the R's, you know, getting a majority of the seats.

24:30This really is about whether the public sees the Democratic experiment as one worthy of their time and in trouble. Monica and Vermont emailed, I don't understand why voting district maps are not simply drawn by someone who knows nothing about the racial makeup of the state. They could simply combine adjacent towns in order to create roughly equal-sized districts in terms of total population, perhaps taking into account geographic features that separate regions such as mountain ranges, but no racial or political factors. Carrie, we have seen some states, I'm thinking of states like Michigan, that have taken redistricting out of the hands of their state legislatures and turned it over to voters.

25:08That can't happen in every state. Not every state has the ability to put that kind of voter-driven initiative on their ballot. But where have we seen states try to step away from gerrymandering, which is done by both parties? Yeah, I really love this question. Thank you so much for asking it. And thanks to the readers who wrote in to ask it. So, yes, we have seen states do that. Arizona has an independent redistricting commission, as you said, Michigan did. And I think this is something that really over the last decade I felt like was catching on. You know, more states were looking at doing this, were creating neutral commissions.

25:41People were studying them and finding that the maps were fairer. I will say that one of the premises I think that that movement was based on is that people don't like partisan gerrymandering. And people don't like it when they see districts carved up in ways that they don't think is going to reflect people having a meaningful say in electing their representatives. And so this was a push in response to that. But I did talk to a law professor last week in the wake of the Calais decision who said that she really felt as though the Virginia and California referendums did show that when people have sufficient reason, they will endorse partisan gerrymandering, right?