Voting Rights at a Turning Point

0:00The Supreme Court has moved from saying that partisan gerrymandering is unconstitutional to saying that it's bad, but we don't have a solution to the problem. It may be unconstitutional, but we don't know what the right remedy is to where we are today, which is that partisan gerrymandering is a legitimate state practice, a legitimate interest that's almost being celebrated.

0:31This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they're available. Forty years ago, the Supreme Court decided a case called Thornburg v. Jingles, which set out a roadmap for how to litigate cases under Section 2 of the Voting Rights Act, as it had been amended in 1982, that challenged things like congressional districts, the lines for school board elections, city council elections, and the like.

1:10Earlier this week, the Supreme Court returned to that issue and did what it called an update of Section 2 and the Jingles test in a case called Louisiana against Calais. My guest today is Nate Persily. Nate is the James McClatchy, professor of law here at Stanford and a professor of communication. He's also the co-author with me and several other people of a book called The Law of Democracy, Legal Structure of the Political Process, which goes into how to think about voting and elections. Thanks so much for joining us today on the show, Nate. Thanks for having me. Yeah. So 40 years ago this year, the Supreme Court decided a case called Thornburg against Jingles.

1:53It was an interpretation of Section 2 of the Voting Rights Act of 1965, as it had been amended in 1982. And that statute has had a really transformative effect on government bodies across the United States, everything from school districts and city councils to congressional delegations. And I wonder, Nate, if you might want to say a little bit about what that law did and how it did that. Well, Section 2 of the Voting Rights Act, as amended, was an incredibly important tool used by civil rights litigators in order to create districts in which minorities had an equal opportunity to elect their candidates of choice.

2:34And so while Section 5 of the Voting Rights Act was seen as the strongest medicine in the original law because it allowed the federal government to be in a position to stop disenfranchising or dilutive mechanisms that were being passed by states and localities. Section 2 applied all over the country and allowed plaintiffs, sometimes represented by you, to litigate against redistricting plans, against at-large election systems that were seen as depriving minorities of an effective opportunity to elect their preferred candidates. Yeah. And the way that it did that was it said that it violates the law, violates federal law, to use an election system, which includes a districting plan or a districting scheme, or the use of at-large elections for that matter, if the result of that scheme was that minority voters had less opportunity than members of the majority to elect candidates of their choice.

3:34And I think the important thing for our listeners to understand is what it said was that it didn't matter so much why the system was in place if it had the result of discriminating against minorities. And so unlike the Constitution, which requires showing racially discriminatory purpose, Section 2 looked at the results. And this had a couple of benefits, and one that you and I have talked about is what it required the plaintiffs to allege. Well, that's right. So just going to first principles here, to move from an intent standard to an impact standard, a results test, doesn't require you look into the minds of the people who passed the law, or in this case, say a redistricting plan.

4:20And so one of the sort of beneficent moves in the 80s was that, and we should add that Section 2 of the Voting Rights Act was passed by huge bipartisan majorities in both the House and the Senate, that what it did was it said, look, that we, in that case, Congress are going to make the decision that there's something wrong, regardless of the intent of a, say, redistricting plan or a representational scheme, that we're going to make a decision that if it results in less opportunity for minorities to elect their preferred candidates, that that's a problem. That's a legal problem. And so there'll be certain remedies that are in place.

5:00And then, as you suggested, the Jingles case made clear that in some situations you had to draw heavily concentrated minority districts in order for them to have an equal opportunity to elect their candidate choice. But again, going to first principles, the Section 2 of the Voting Rights Act, like other pieces of civil rights legislation, was focusing on the impact on voters, not the intent behind the line drawer. And the move then from a constitutional standard of intent to results prevented then plaintiffs from alleging, say, that the line drawer was racist, that they were trying to do it to injure minority voters.

5:41Yeah, I mean, I think that that's one of the things that the Senate report that accompanied the 1982 amendments made a big point about, which is, you know, if you have to call people racists to get them to change the system, it will almost lead to a kind of getting people's backs up because they don't want to be called a racist. And so they might resist a plan simply because otherwise they have to admit to a kind of racism or discriminatory purpose. And the Voting Rights Act had this amazing effect on the composition of all sorts of legislative bodies all over the South and the Southwest and in places like South Dakota, because the Voting Rights Act protects racial minorities.

6:31It protects Native Americans and members of Alaska Native tribes. It protects Latinos. And so, you know, if you think about, I mean, one of the cases I worked on, the Dillard case, was transformative in the space of a decade. You went from having no Black members on county commissions around Alabama, which is a heavily Black state, to having them all over the state. It's important to note, since this gets lost in the partisan discussion of the most recent decision and of the Voting Rights Act generally, that the greatest impact of these laws and the Voting Rights Act, it can be felt at the local level where so many of our elected officials are elected.

7:12And so, as you mentioned, every school board, every county commission, let alone state legislature and Congress was affected by the Voting Rights Act. And it wasn't just in areas of historic discrimination, you know, as was the preoccupation of Section 5 of the VRA. But all over the country, you had either Section 2 lawsuits or just jurisdictions making the decision to create these more equal districts once Section 2 of the Voting Rights Act was amended in that way. Yeah. And you've been a special master in a number of cases, many of them in states in the North. That's true. And, you know, the Voting Rights Act, you know, sometimes is difficult to comply with.

7:55Sometimes it's easy to comply with. But it always is, you know, it's part of the legal backdrop. But it's, again, it's just a basic requirement made as a, created as a result of a decision that we made as a democracy, that in certain circumstances, regardless of the intent, that we want to make sure that minorities have an equal opportunity to elect their preferred candidates. Yeah, there's a book about the 1982 amendments that talks about how Henry Hyde, who was a representative from Illinois, went to a set of hearings in Alabama. And Henry Hyde was a very conservative member of Congress. Some of our listeners may remember the Hyde Amendment, which was the amendment to federal funding statutes that prohibited any federal funding for abortions.

8:41And so not a flaming liberal by any means. And he was so surprised by the inability of black voters in many parts of the South to elect the candidates they preferred, that he became really quite one of the big proponents of the Voting Rights Act. And Robert Dole was a huge proponent of the Voting Rights Act. But one person who, although quite young at the time, was very skeptical about the move to Section 2 of the Voting Rights Act, was a young special assistant to the attorney general in the Department of Justice named John Roberts. And he is now the chief justice of the United States. So over the past 15 years or so, the Supreme Court has cut back in a number of ways on the Voting Rights Act.

9:26You earlier mentioned Section 5 of the Voting Rights Act, which was probably the most aggressive part of the Voting Rights Act originally. It prohibited covered jurisdictions, which were large parts of the South and the Southwest, and a couple of scattered counties elsewhere in the United States, prohibited them from making any change in their election law, no matter how small, unless they could prove to the federal government, either to the Department of Justice or to a federal court in the District of Columbia, that their proposed change would have neither a discriminatory purpose nor a discriminatory effect.

9:59The Supreme Court struck that down in 2013 in an opinion by Chief Justice Roberts that said, times have changed and we no longer need Section 5. And at the end of that opinion, he said, well, we no longer need Section 5 with its really quite drastic medicine because Section 2 applies everywhere in the country. And since then, we've seen a retrenchment in Section 2 led by Justice Samuel Alito, who's now written the two opinions that really constrict how the Voting Rights Act gets applied. An opinion a couple of years ago in a case called Brnovich, and then earlier this week, an opinion in Louisiana against Calais.

10:42That's right. And the Brnovich case was about the right to vote, sort of the ability to cast ballots, whereas Calais is about vote dilution in the context of a Louisiana redistricting plan. And, you know, most of the section two, the action under section two was in the redistricting realm or challenging of at-large systems. And, you know, it was a transformative law then. And so now the Supreme Court's decision in Calais, which basically overrules jingles, though it doesn't say so specifically, but that the Supreme Court's decision is equally transformational. Yeah. So just as Alita's opinion for a six to three court says that what the court is doing is it's updating the Jingles formula, right?

11:32And the Jingles formula was a formula that said the first thing you have to look at is can you draw a district from which minority voters could elect the candidate of their choice, a district where there are enough of them and a district that's regularly enough shaped and districts in the United States are not all square. Can you show that there's racial block voting, that the majority, the minority is politically cohesive and that the majority usually votes sufficiently as a block to defeat its candidates of choice? So there were three three jingles factors, if you will. The court sort of changed all three of those factors in its quote unquote updating.

12:12Do you want to say a little bit about what just what it did there? Well, like I said, it doesn't say that it is overturning jingles, but in effect, it is going to make the traditional kind of lawsuit to sort of create minority opportunity districts, it's going to make it nearly impossible. And so while it purports to keep that first jingles factor about showing that the majority is large enough to constitute a majority in a single-member district, ultimately the court's decision, in my opinion, sort of basically goes back to the Pre-Voting Rights Act constitutional standard where you have to show discriminatory purpose.

12:58Toward the end of the opinion, Justice Alito seems to walk this back. But ultimately, the court says that if you are going to litigate these cases, if you want a successful plaintiff, has to show that they have been intentionally discriminated against. And so it's hard to see how much of the jingles framework remains. I mean, I suppose, you know, I've talked about this. There is a complicated way you can try to say it's reinterpreting the three jingles prongs, but I don't personally really see it. Yeah, I mean, it's reinterpreting in the way that, you know, West Side Story reinterprets Romeo and Juliet.

13:38It's not exactly recognizable. And it's not even I think it's not even like that. It's more it's it's it's it's it's hard to describe this as updating unless it's like update. The Voting Rights Act used to be a really strong statute. Now it's toothless. And I think just to emphasize for those who aren't in the weeds on this, right, that the move of the amended Section 2, as we said before, was to move from an intent standard to a result standard. And it is very hard to read this opinion as not moving back to the intent standard that preexisted the Voting Rights Act, Section 2 of the Voting Rights Act.

14:16And while, again, they say that they're not doing that toward the end and there's a dispute between the – there's a discussion between the dissent and the majority on this. This is an extremely important move because if ultimately you're going to have to say that racist motives were at fault for a redistricting plan that did not deprive minorities of an effective opportunity to elect their preferred candidates, that that is going to be, A, very difficult to prove and very incendiary to prove both in court and out of court. Yeah. And, you know, the court says one of the reasons we need to update this is times have changed.

14:52And one of the reasons they give for times have changed, I think, makes a certain, you know, has a certain level of plausibility, which is that in 1982, minority voters were still finding it really difficult to register to vote, to cast a vote and to have that vote counted. And that has changed quite a bit since then. The turnout rates, especially if you control for things like income and education level, are just as high in the minority community in most places as they are among white citizens. Yes, but times have changed. But I wanted to talk about one of the other times have changed in just a moment.

15:28But did you want to say something about that? I just want to be clear because I do worry that people will think that this is the same kind of analysis that we saw in the Shelby County case where you could say things have changed in the South. It's wrong to target the South. This was a national law. And the key feature with respect to kind of the temporal validity of the statute is that it dealt with problems on the ground today, right? If times have changed so much that there is no racial polarized voting and there is no sort of legacy of discrimination, then there wouldn't be a Section 2 lawsuit.

16:05And so unlike Section 5, in many respects, Section 2 had built into it a kind of sort of updated relevance to make sure that any case that was brought under it actually was dealing with present day conditions. Yeah. And one of the startling ironies here is one of the other changes that the court points to is when Congress was thinking about racial vote dilution in the South in 1980, you were dealing with what was still then, although it had begun to dissipate, the Democratic one party South. And the court says, well, now you have two parties, you have a Democratic Party and a Republican Party, and then goes on to say, and this is with regard to the second and third jingles factors, which are about racial black voting.

16:53It's not enough to say black voters vote for one set of candidates in this county, white voters vote for a different set of candidates, and the black preferred candidates never win. That's not good enough anymore. The Supreme Court is now saying you have to show that the black communities' candidates are losing because of race, not because of party. And that seems to me to be almost a nearly insuperable obstacle because the party politics are racially polarized politics in large parts of the South and Southwest. If they had stopped there, I think we would have been able to salvage much of the Voting Rights Act.

17:35If it was just about trying to control for the factor of party, then there's still a lot of cases I think that could have gone forward. But you are right, which is that party and race are often inextricably intertwined, so that it's very difficult to disentangle them statistically and practically. And part of the point, again, of the amended Section 2 of the Voting Rights Act was to just deal with results, right? We don't care whether it's about party. We don't care whether it's about what the intent may have been. It's just what is the effect of this on the minority voting community? And so in some ways there's kind of a double blow here because on the one hand it's saying that racial polarization is only significant if you can control for partisanship.

18:20But then the court goes even farther. And I know we were going to talk about this, which is that that if the rationale for the redistricting plan that has the discriminatory effects was partisan, for example, partisan gerrymander, then that in a sense immunizes the plan from a charge that it was drawn in order to disadvantage the minority community. Right. And if we think about the case that was actually in front of the court, which was from Louisiana, the claim in the Louisiana case was that Louisiana's failure to draw two majority black districts, it drew one district. And the only reason it had that district actually is because there was a Section 2 Voting Rights Act case brought in the 1980s, a case called Major against Treen.

19:06But the failure to draw a second majority minority district in Louisiana, a state that's a third black, violated the Voting Rights Act. The state initially came back with a plan that did draw two districts after it got sued. And it drew the second district in a somewhat odd way in order to protect the seats of three Republican incumbents, Speaker Johnson, Majority Leader Scalise, and Representative Letlow, who's a very prominent Republican politician. She actually now has Donald Trump's endorsement, I think. She's running in the Republican Senate primary in Louisiana. And so in order to protect their seats, the district was drawn a little oddly.

19:50And the initial lawsuit here was you drew the second district too oddly. But now what the Supreme Court is really saying is, Louisiana, you don't even have to draw that second district. If you want to protect five or six Republican incumbents and only have one Democrat, you can do that. And I'm wondering whether - It's not clear they even have to draw one district. Well, that's what I was about to ask you is, suppose Louisiana comes back now and it says, yeah, we've had a majority black district centered on New Orleans for the past 35 years, but you know what? That district has consistently elected a Democrat.

20:25We'd rather see that seat go to the Republicans. So we're going to redraw all of the districts in Louisiana. So they're all going to be districts from which only Republicans can get elected. And given the racial makeup of the electorate and its preferences in Louisiana, what that means is we will have, I think, what is that Louisiana has six districts and all six districts will be Republican districts and all six districts, the white majority will control who can elect. But hey, that's just Republican politics. There's no problem there. I mean, is Justice Alito's opinion saying that's fine by us?

20:58I think so. And we already see in other states that they've taken up the mantle. So in Tennessee, which only has one district, which happens to be majority black, even though it's held by a white Democratic member of Congress, they said that they're going to try to eliminate that district. So no districts that were drawn with the Voting Rights Act as the justification, or no districts that exist where the Voting Rights Act protects their current kind of instantiation, none of them are safe, right? So long as you can justify dismantling them on the basis of partisanship. Well, and what that means is potentially the resegregation of congressional delegations.

21:43Well, it depends what you mean by resegregation. There won't be any black representatives in most of those places because there aren't black candidates running as Republicans. Well, there are some states that I think we've got five black Republicans now in the current Congress. Yeah, but all of them are leaving. Yeah. Well, so, but in the end, what you're saying is right, which is that we will see real differences between the states as to the likelihood that you'll get minority representation. And the key point here, again, to return to the kind of statistics on racial polarization, is that in certain areas of the country, it's just the fact that there aren't that many people who are willing to cross over to vote for the black preferred candidate.

22:31And so if you gerrymander in such a way as to divide up these communities, you're effectively diluting the voting power of those communities. And I guess the other thing that's kind of shocking in the evolution of the court is it's not just that the court has evolved away from supporting and enforcing the Voting Rights Act, but it's moved towards a view of partisanship in the political process that's quite different than where the court used to be. And I wonder if you might want to talk about it, the very same sort of 40-year period in which the Voting Rights Act was in front of the court. We also saw the court in 1986 not just deciding Thornburg against Jingles, but also deciding in case from Indiana that involved political gerrymandering called Davis against Bandimer.

23:18And I'm wondering if you could kind of walk us through what's happened on that side of the ledger. Sure. So to start with the conclusion here, the Supreme Court has moved from saying that partisan gerrymandering is unconstitutional to saying that it's bad, but we don't have a solution to the problem. It may be unconstitutional, but we don't know what the right remedy is to where we are today, which is that partisan gerrymandering is a legitimate state practice, a legitimate interest that's almost being celebrated. And so that original case, as you were describing, Davis v. Bandemer, came up with a standard, admittedly a difficult standard to satisfy, since there weren't any successful cases after that, really, that said that partisan gerrymanders could be unconstitutional if they fulfilled certain criteria, again, vague criteria about continued frustration of the will of the majority to elect.

24:18Well, it was consistent degradation of a political party's influence on the process as a whole. And then the court moved, you know, in the early 2000s to a case from Pennsylvania, Vieth against Jubilera. And in that case, four justices said, look, I think maybe the way to say this is all nine justices agreed that partisan gerrymandering was unconstitutional. Right. But four of the justices led by Justice Scalia said, look, it's unconstitutional, but the remedy for this should be in Congress, not in the courts, because it's too hard to decide exactly where the line should be drawn. One justice, Justice Kennedy, said, I don't see where the line is now, but I'm not saying never.

25:04I think maybe courts could come up with a standard. And then the other four justices all said, well, there's a clear standard, but they divided three ways about what that standard was. And so people started then trying to come up with standards and they brought a number of cases to the court. And that ultimately culminated in the Rucho case, which you were alluding to earlier, where the Supreme Court said, yes, you know, partisan gerrymandering is inconsistent with the values of a democracy. But as a federal court, we don't think we can get involved in this political thicket to decide where the permissible line is.

25:40Right. And I will say, look, I am somewhat sympathetic to that concern, that it is very difficult to decide how much partisanship is too much partisanship in the redistricting process. I think there are ways that, you know, statistically that you can do that. And that was part of what the dissenters in that case said. But ultimately, you know, everybody in that case seemed to admit, well, this is not something to celebrate. Right. This is just a kind of reluctant thing that we have to do. Right. And they declared that partisan gerrymanders presented non-justiciable political questions. One of the great and interesting things, I think, about that case was Chief Justice Roberts said there, you know, if you want a solution, go to Congress or go to the state legislature, the states through their own democratic processes.

26:31And Congress in the Voting Rights Act essentially did do that in one sense, which is it said, look, you know, there's one set of cases where you're not going to be able to pursue partisanship in the most naked, most tooth and claw way. And that is you cannot have partisanship that denies groups that have traditionally been excluded from the process, Black Americans, Latinos, Native Americans and Alaska Natives. You cannot have partisanship that deprives these groups of a chance to elect candidates of their choice. So Congress did act. And now what the Supreme Court has sort of said is we don't care whether Congress acted.

27:10We're going to say partisanship can trump everything else. Well, that's right. And like I said, we've moved from a set of cases that are, again, cited in this Calais case where the court has said we are going to sort of step out of the partisan gerrymandering business. We're going to let state courts, we're going to let state constitutions, state legislatures and Congress deal with that issue because we don't have the answer to then saying actually partisanship is going to get you out of an accusation that you are violating the Voting Rights Act because you're discriminating against racial minorities.

27:48And so we've now sort of given the court has now given an incentive to these states to to say that, yes, the reason that we are doing this, which is to say unpacking or splitting up minority communities, is because we're trying to effectuate a partisan gerrymander. Yeah. And I want to, in the time that we have kind of remaining, I want to step back a little and ask two questions from this. The first of these is, how is this going to affect the election in 2026 or in 2028? Because usually, you know, until quite recently, at least in the 20th and 21st centuries, you had one round of redistricting after the census came out, and then those districts stayed in place.