BREAKING: SCOTUS Deals Another Blow to Multiracial Democracy

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2:56Leah Litman:Chief Justice, may it please report. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

3:37Yes, listeners, it's here. Today, we got the Supreme Court's decision in Louisiana v. Calais, the case about the future of the Voting Rights Act's protections against racial discrimination in redistricting. Spoiler alert, that future is over. It's just about as bad as expected. It was, after all, written by Sam Alito. We're going to quickly walk through the implications and potential fallout of the case with help from Mark Elias, chair of Elias Law Group and founder of Democracy Docket. And then we may add a few additional beats on the court's reasoning, such as it is. Welcome back to the show, Mark.

4:08Leah Litman:Well, I wish I was coming back under better circumstances, but I guess I'm glad to be back. This is rarely the case in this line of work, but today is an especially bad one. You know, Leah Littman is a judicial realist, and she was right. Careful. T-shirts printing in 30 seconds is the sound you're hearing right now. But she indeed was right then and will continue to be right. Anyway, Mark, super grateful that you're joining us on a day like this. Let's just quickly remind our listeners of the facts of Calais. They're pretty well known. The state of Louisiana drew districts that allowed black voters to select preferred candidates in one out of six districts, even though about one third of Louisiana citizens are black.

4:44The math wasn't mathing unless districts were drawn to lock them out of power. Maybe ding, ding, ding. Because courts said that math violated the Voting Rights Act, Louisiana was required to draw new districts that complied with the VRA. It did so. The districts gave minority voters opportunity to select another candidate. And that compliant map with two black opportunity districts was challenged as unconstitutional discrimination. And in Calais, Sam Alito said the Voting Rights Act, properly construed, did not require Louisiana to draw a new district because its initial map, locking black voters out of political power, was very legal, very cool, very demure, and very mindful.

5:20So, okay, Mark, we are legal nerds, as are you, so we are definitely going to get into the court's reasoning. But this decision is also just super significant for our multiracial democracy. And kind of we wanted to start there with a question of impact. So can you talk about what effect the decision is going to have on maps, districting, and democracy in general?

5:38Leah Litman:Yeah. So first of all, this was as cynical a decision as the Supreme Court could possibly issue. I mean, to be honest with you, it would have been much more intellectually honest for them to just say Section 2 of the Voting Rights Act. is unconstitutional under whatever theory of unconstitutional. The idea that the conservatives and the majority on this court are saying that they are properly construing Section 2 is literally them saying Black voters can have districts as long as they vote for Republicans. That is essentially the holding of this. So what does this mean for democracy? It's a big setback, and we need to be honest about that.

6:11Leah Litman:This was the gutting of the last piece of the Voting Rights Act doing work. And it was the provision that particularly was important because it applied nationwide. A point I might add that the chief justice himself made when he wrote the opinion striking down Section 5 of the Voting Rights Act in Shelby County. He said, don't worry, this Section 2, still very vital, applies everywhere. Don't worry. And then he said, watch this. Psych! So look, it's bad for a multiracial democracy. It's bad for democracy. What has happened here is that in a series of court cases, the Supreme Court has said, partisan gerrymandering, just fine.

6:52Leah Litman:Discriminating against minority voters now, just fine. And if you want to impose a minority majority district or a voting rights act district, it needs to reflect the partisan impulses of the legislature, which are just fine because partisan gerrymandering is just fine. So what we are left with is that in state after state where Republicans control the entire process, they have the legislative control and the gubernatorial process, governor control, they will now gerrymander on explicitly partisan grounds that will insulate them in one direction. They will trample all over the voting rights of minority voters with near impunity.

7:34Leah Litman:and they will look and say, look, we met all the Supreme Court's tests under the Voting Rights Act. That is why it is so cynical, Kate, because it would have been better for them to just say there is no Voting Rights Act, but rather to hang that what they are now going to say is lawful under the Voting Rights Act is an absolute abomination. So it's an abomination and it's wildly cynical. Is it also politically strategic? I mean, And, you know, you think about comparing a decision like this to Dobbs, which said forthrightly, we are overturning Roe versus Wade. And that really galvanized an important electoral and popular reaction.

8:11I think it's entirely possible that a decision that said forthrightly, we are actually overruling on the grounds of the Constitution, the last remaining vestige of the Voting Rights Act, that might have spurred a real response. And I hope this one does too. But was it kind of framed the way it was in order to reduce the chances of that kind of response and pushback?

8:30Leah Litman:Yeah, I think that's exactly why they did it this way. I think exactly they did it that way. And I think we can't allow them to get away with that. You know, I'm old enough, Kate, and this was very controversial at the time. It's hard for people to recognize this was actually controversial at the time. In 1993, there was a debate in the Casey decision whether the pro-choice community ought to just say this is overturning Roe versus Wade. And by the way, I was in the camp of saying, yeah, we ought to just say what the Supreme Court is doing here is fundamentally altering Roe versus Wade in a way that is going to allow for its eventual chipping away and overturning.

9:05Leah Litman:Now, you know, that doesn't mean I was right. You know, it stood for a much longer period of time than I thought it would. But I think the risk that we face right now is those of us in the pro-democracy community take the bait and say, well, you know, at least they didn't overturn the Voting Rights Act. No, they overturned the Voting Rights Act. And I think Justice Kagan also called this out, the attempt to basically depict the opinion as doing something other than it did. You know, she said its opinion basically presents itself as understated, even antiseptic. And the majority doesn't announce today's holding as all but nullifying the Voting Rights Act when it did.

9:40I mean, this could be the most significant Supreme Court race-related decision in a while, just given, you know, dismantling the number of districts electing representatives from minority communities that could be at stake. You know, we've talked about this before, but just to remind our listeners, Nick Stephanopoulos, professor at Harvard Law, voting rights expert, estimated that somewhere about 70 congressional districts could be stripped of protection under the Voting Rights Act. And that's just the number of districts in Congress. Mark, I know we've talked about this decision and this decision has been talked about in terms of what it might mean for the 2026 midterms.

10:13Florida seemed interested in potentially taking this up and drawing even more districts. What might this decision mean for the upcoming midterms?

10:22Leah Litman:All right. So Florida is, as we speak, drawing a new map. And they are going to add or try to add four more Republican seats. Now, I think in Florida, just at a political level, I think that's going to probably backfire on them. And I think actually the congressional delegation knows that, which is why they're not all that keen on this. I think Ron DeSantis is auditioning for something else with Donald Trump. And he figures he won't be blamed if this winds up being a dummy mander. He'll get the credit for doing the here and now. Sounds very familiar in Trump world. But I think your broader question, though, is the right one, which is, what does this mean for 2026?

10:54Leah Litman:What does it mean for 2028? In 2026, look, I think there will be, obviously, it will affect at least one seat in Louisiana, maybe two. Perhaps it impacts a seat in Alabama. Maybe, maybe not. You know, I say that because there's another VRA case that's kind of percolating before the court. Beyond that, you know, Republicans need to be careful in two directions. The first is at a political level, like they are they are facing an unpopular electorate that doesn't much care for them. And, you know, it's not like when you redistrict voters go away. Right. I mean, these these these minority voters have to go in someone's district.

11:28Leah Litman:And I don't see a lot of Republicans in these states raising their hand to say, oh, yes, please take my 65 percent Republican district and make it a 52, 55 percent Republican district in this political environment. So that may put a little bit of a break on it. But I think the real break on it for 2026 is just the logistics and the practicality. I mean, you know, the federal law requires that military and overseas ballots go out 45 days before a primary and 90 days before a general. And like, those are hard federal deadlines that like states can't mess with. States have already had primaries. And, you know, there's a lot of talk, you know, on the right about, oh, we'll just hold new primaries.

12:05Leah Litman:Let me be honest with you. And I can you can share this with your Republican guests if you ever have any. If they think they get to just disenfranchise a bunch of voters who have already voted by saying never mind, they're going to get sued. And under the conservatives analysis in Bost, where they adopted Justice Scalia's language about undermining the foundation of democracy and confidence in elections by after the fact throwing out votes, I don't think they're going to get away with that. At least they're going to get sued if they try to get away with it. So I think it'll be relatively modest for 2026.

12:40Leah Litman:I think 2028, you know, I hear estimates all over the place. The New York Times says 12, fair fight. Founder of Savi Abrams says it's closer to 30. Nick Stephanopoulos says maybe it's 70. Like, I just, it's going to be a lot of seats that are going to be in play. But I want to offer you one piece of hope. You know, after Shelby County, everybody said this is going to cost Democrats seats everywhere. And I went and I sued Virginia and I sued North Carolina saying, well, it turns out Section 5 wasn't a rationale to draw Bobby Scott's district. If it wasn't a rationale to support drawing the state legislative lines of Virginia, if it wasn't a rationale to draw to gerrymandering blacks into two districts in North Carolina, then I guess it wasn't a rationale.

13:19Leah Litman:And I sued and I won those cases in the U.S. Supreme Court. It led to the creation of additional black districts and additional Democratic seats in both states. So I guess when you're thinking about the prospect of future litigation, Justice Kagan in dissent said, today's decision makes Section 2 a dead letter. Justice Thomas seemed to enthusiastically agree, saying even though he would have said no challenge to redistricting should ever succeed, this decision basically put an end to what he called the disastrous misadventure. What does this decision do to Section 2? And relatedly, how does that interact with partisan gerrymandering, which seemed to be both part of the court's reasoning and also what it envisioned to be the future of American democracy.

14:05Leah Litman:Yeah. So first of all, I just have to say, because you guys will appreciate this, you've got Justice Alito saying, we didn't do anything here. This was just like nothing. And then you have Justice Thomas who's like, thank God we did this. Speaking of Dobbs, right? The guy can't keep it under wraps. He's like, no, this is what we're doing, team. Like they didn't work that out just like between them. Look, I think for Section 2 litigation, it's going to be virtually impossible to bring Section 2 cases successfully because in order to do so, you're going to have to say, you're going to have to meet the political objectives of the legislature.

14:46Leah Litman:So effectively, what this means is that if you want to bring a Section 2 case in Alabama on behalf of Black voters, you need to draw a map in which the Black voters vote Republican, which the idea that we are hinging minority voting rights on a partisan outcome is an absolute catastrophe and insult. I mean, I can't use words strongly enough. So I think that Section 2 will no longer be a vital tool. Like you might as well require plaintiffs to show that the tooth fairy is real. Just walk you at it. That's right. So I think that the two tools or the two things that remain out there is, number one, partisan gerrymandering, which, you know, conservatives have taken from a necessary, non-justiciable evil, right?

15:30Leah Litman:We don't like it, but, geez, we, the Supreme Court, are powerless to do anything about it. We looked for a test, and, you know, we just couldn't come up with it. Like, it's the one thing that was just too complicated for us. But Robert's right. Remember, and Rujo does say distasteful, maybe worse. He is very explicit about the disapproval. But sorry, Mark, you were going to say fast forward to this decision. Now they have turned it into a positive good. A constitutional entitlement at a highest value, in fact. It is, in fact, now a traditional redistricting criteria that we ought to value in the process.

16:00Leah Litman:So that's going on. But that doesn't mean that state courts will do that. And so I think that there's going to be a lot of attention to state constitutions and state processes around partisan redistricting. And then the second, which you haven't mentioned, is there is still an inherent tension. And this was this goes back to the cases that I brought after Shelby County. There is still this inherent tension between the intentional discrimination line of cases, the racial gerrymandering line of cases. And this because, like, does anyone think that when Republicans are going to draw a map, you know, they're not shuffling black voters based on their race?

16:39Leah Litman:I mean, of course they are. Like they don't want Democrats in their districts, but like what they really don't want are black Democrats in their district. And if that sounds weird to people, like we were able to prove that in the post-Shelby County litigation we brought, where you looked at these neighborhoods and it was a professor from Stanford who did this analysis. And I can't believe I'm blanking on his name, Roden. Jonathan Roden, I think, did this analysis. and he plotted it out on graphs and you'd look at these neighborhoods and there'd be like a group of, let's just call them white liberals, okay, but good Democrats, but white, next to a neighborhood of black Democrats.

17:16Leah Litman:And the Republican legislature was taking the white Democrats, not the black Democrats. And you know that in the South in particular, that is going to be a dynamic that is going to leave them open to those challenges. Now, the question is whether under Alexander, yet another case where they kind of like, tried to limit this, whether they're going to say, well, that's OK. It's OK if you are intentionally discriminating against Black voters in that way. Well, whatever they're going to do. Sorry if that was very wonky. No, but I mean, I think that sort of the point is that they have not resolved all ambiguity in this incredibly complex body of law, nor have they foreclosed all possible avenues.

17:57Now, I wouldn't put it past them to do that down the road. But you're saying that the evidence of even, you know, even if they do impose, if they have imposed an intentional discrimination requirement, there may be enough evidence to actually succeed in making out those claims in future litigation. And we know enough to know that you, Mark Elias, are going to be dogged in bringing any bringable and winning any case out there that can be won. So I want to I want to add. Yeah, if there's any note of hope that you can leave our listeners. No, it's not.

18:24Leah Litman:It's not a note of hope. It's actually a note of where we are. OK, we'll take that. I'll take that. Yeah. So the lawsuit that challenged the Louisiana map was, in fact, a racial gerrymandering challenge, right? The Supreme Court didn't have to decide this question. The Supreme Court was not asked to decide this question. The Supreme Court ordered re-argument because they wanted to decide this question. So there's a lot of, you know, debate right now. And I know the New York Times published, you know, some papers involving the shadow docket. But there's a lot of debate about like this calling balls and strikes umpire thing.

18:58Leah Litman:This was a case that nobody asked the Supreme Court to decide. And the Supreme Court ordered the parties to re-argue it, to decide it. And that is a procedural piece of this that I don't think has got enough attention. It is the only other instance in my little area of the woods, but you guys are the experts, that where I have experienced this was Citizens United, where literally what the Supreme Court was asked was whether or not pay-per-view movies on cable systems were covered by the campaign finance laws. That's literally the question that was posed to them. And instead of answering that, they ordered the parties to answer a different question, to brief and argue a different question, which led to Citizens United.

19:40Leah Litman:And it feels like the conservatives are giving up even the pretense of we are just deciding the thing that is litigated before us. And I think that's really, that's like another layer of insult to this injury and another threat to where this court will go if they can just not just pick and choose the cases they want to hear, but actually then pick and choose cases they weren't asked to hear. Yeah. Well, Mark, we know today is a super busy day for you. We so appreciate you taking the time to speak with us and to provide both our listeners a dose of reality and hope. So thank you so much, Mark. Thank you.

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