Is voting doomed?

0:02The 1965 Voting Rights Act enfranchised millions of black voters in the Jim Crow South. And to this day, polling shows it is one of the country's most popular laws. Americans tend to like democracy. But a challenge out of Louisiana has the Supreme Court's nine justices considering today whether to gut the VRA. And you know what? They might. The Supreme Court has seen that there just isn't that much backlash to its decisions, at least not the kind of backlash that threatens the court's power. You know, the Supreme Court has now overturned the right to abortion. It has overturned affirmative action.

0:38It has overturned a number of environmental policies and other pretty popular laws. And, you know, it still stands. That's ahead on Today Explained.

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2:07from Vox. I'm Noelle King. Mark Joseph Stern is a senior writer for Slate. He covers Courts and the Law, and he co-hosts Amicus. It's a podcast. All right, so Mark, the Supreme Court is hearing this big, fascinating case today. What is it? This case is Calais versus Louisiana, which is a challenge to what remains of the Voting Rights Act, a seminal 1965 law designed to protect and enhance minority participation in elections. Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. So Calais is one of a group of plaintiffs who are white, who are challenging a map drawn by the Louisiana legislature designed to increase representation for Black residents.

3:03And may it please the court. Louisiana would rather not be here. A few years ago, a district court struck down a map that only included one congressional district with a majority Black population. We didn't want to be in the emergency docket in 2022. The legislature responded by drawing a new map with a second congressional district featuring majority Black population. And that prompted these white voters to come in and essentially argue that this new map with its two majority Black districts gave Black residents too much political power at the expense of white residents and that by doing so under the Voting Rights Act, they had violated the Constitution.

3:43And today, I mean, God bless my friends on both sides of this case, but we'd rather not be caught between two parties with diametrically opposed visions of what our congressional map should look like. But this has become life as usual for the states under this court's voting cases. Two majority black districts out of how many in the state? Six. Okay, two out of six. It sounds to me like it would be hard to make the case that two out of six districts that are majority black are giving black voters too much power. But it's at the Supreme Court, so somebody has made a convincing argument. What is the argument that Calais is making and what's been convincing about it?

4:22So Calais is arguing that the Voting Rights Act, as currently interpreted, is unconstitutional because it takes race into account too much and requires courts and legislatures to use race heavily in redistricting. The whole point of the Voting Rights Act is to increase participation in democracy by voters of color. And one way to do that is to ensure that they are able to elect representatives of their choice. And it's really impossible to protect the voting power of minority voters without considering their race, without ensuring that a map represents them, that they are participating equally in democracy.

4:59But the plaintiffs here say, look, taking race into account that way, using race to decide whether a law or a map is constitutional, that actually violates the Equal Protection Clause. And so it cannot stand under our Constitution. Who's on the other end of Calais? Who's on the other end of the V? And are they essentially making the argument that you just laid out? So it's really interesting. Initially, the state legislature defended its map. A super majority of our legislature adopted this map. And our job is to then defend that act of the legislature. And that's what we were here to do today.

5:36But then the legislature changed its mind and it flipped its position. And the legislature essentially sided with the plaintiffs and said, we now think that this map is unconstitutional and that the Voting Rights Act itself requires states to violate the Constitution. So even though Louisiana is being sued, the attorney general, the solicitor general, the state legislature, the governor, all of them have now decided that, in fact, they deserve to be sued and that the map that they drew is unlawful. Fascinating. And now we go before the Supreme Court and let's pull back actually and get above the state of Louisiana.

6:12Didn't the Supreme Court uphold the Voting Rights Act in a different case just a couple of years back? Yes. So it was only in 2023 in a decision called Allen v. Milligan that the Supreme Court upheld. For nearly 40 years, we have authorized race-based redistricting as a remedy for state districting maps that have a discriminatory effect under Section 2. We continue that understanding today. The Supreme Court said, yes, the Voting Rights Act does require states to ensure that minority voters have fair and equal representation. Yes, that does sometimes require courts and legislatures to take race into account.

6:51That section prohibits states from implementing voting rules or practices that have the effect of abridging a person's right to vote based on their race. But that is completely fine under the Constitution. It is not a violation of the Equal Protection Clause, and it's not a violation of the 15th Amendment, which bars discrimination on the basis of race in voting. The Supreme Court was pretty clear that this was a longstanding law that had been applied in much the same way for decades. The JNCOS framework we have used for almost the past 40 years reflects that understanding of equally open. And we continue to adhere to that understanding today.

7:28And yet here we are barely two years later and the Supreme Court is doing exactly that. It is entertaining what is very much an existential threat to the foundation of the Voting Rights Act. A thinking woman such as myself might say, you guys, Supreme Court, the nine justices, you just did this. You handed down a ruling. It's good. It's been 24 or so months. Why are you doing this again? Why are they doing this again? So, I mean, it's a good question. I think it's a question more for a psychoanalyst than a legal journalist because I can't peer into their skulls. But, you know, it does seem to me, yes, their skulls or their souls.

8:08It does seem to me that the decision two years ago was always on kind of shaky ground because it was a five to four ruling. Chief Justice John Roberts and Justice Brett Kavanaugh joined the majority, but they have long been skeptical of the Voting Rights Act. And John Roberts, when he worked in Ronald Reagan's Department of Justice, lobbied against an expansion of the Voting Rights Act quite vigorously. He also wrote a 2013 decision that struck down a different part of the Voting Rights Act. And so I think it was clear at the time that, yes, this was a victory for the VRA. It maybe was also a stay of execution, even though the majority said we're standing by the VRA.

8:47It was still a threadbare majority doing so with two justices who really over the long term didn't have a lot of love for this statute.

9:01If the court were to rule against the VRA, what would it be saying in the simplest possible language? You can no longer do what or you must do what? The court would be saying you cannot fight racism by taking race into account. I think that's the simplest way to put it. The court would be saying you cannot, as a state legislature or as a federal court, use race to decide whether a certain congressional map or congressional district is drawn in a way to dilute or diminish the influence of Black voters. And you also can't use race then to try to create a new map or a new district that increases representation and political power for Black voters.

9:47The court would be saying you have to pretend to be colorblind. You have to pretend as though you can't see race, you aren't thinking about race. Even though we all know that the Louisiana state legislature has long used race to draw districts that entail a recent decision, it was pretty aggressively diluting the political power of Black residents by taking their race into account, the Supreme Court would be saying, well, too bad. The Constitution requires colorblindness. And so even if there is racism afoot, we are not going to allow state legislatures or lower courts to then use race to try to remedy that problem.

10:23So if the Supreme Court decides to get rid of the Voting Rights Act or to gut the Voting Rights Act, what are the implications? And are they just for Louisiana? No. So there are many, many maps drawn in states all across the country that were designed to comply with the Voting Rights Act by ensuring that voters of color have sufficient and equal representation, that they have equal access to democracy and to the electoral process in the terms of the law. If the Supreme Court guts the Voting Rights Act, then it will be open season on these Black communities and brown communities. State legislatures in places like not just Louisiana, but also Mississippi, Alabama, Florida, Texas, they will be able to go back and draw even more racist maps that even more aggressively dilute the voting power of communities of color and not have to worry about a Voting Rights Act challenge because the Voting Rights Act will be essentially dismantled.

11:22And the reason that all of this, well, this matters for many reasons, but one main reason this all matters, I am assuming, is because Black Americans tend to vote for Democrats and not for Republicans. And so this becomes partisan because if you're diluting Black districts, you are likely to have fewer districts voting for Democrats. Is that right? Yes, that is correct. The Voting Rights Act was not designed to be a partisan law, and it has long enjoyed bipartisan support. But the reality is that in this country, Black voters overwhelmingly support the Democratic Party. And so this law has functioned as a kind of maybe you could say a safety net for the Democratic Party insofar as it prevents states from aggressively gerrymandering Black communities out of any kind of real political power or representation.

12:15That means that if the law is gutted or overturned, then it would be a huge problem for Democrats. But it seems that Democrats could lose as many as 19 seats in the House of Representatives if the Supreme Court guts the Voting Rights Act and states are able to declare open season on communities of color and just gerrymander them out of all real representation.

12:47Slate's Mark Joseph Stern. He covers the law and he co-hosts Amicus, the podcast. Coming up, no country for old laws. Stay tuned. You'll get it by the time we finish.

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17:17This is Today Explained. I'm Ian Milheiser. I cover the Supreme Court for Vox. All right. You, Ian, have a problem with the Voting Rights Act. Tell me what your problem is, and then we're going to let you make your case. I mean, I hate every word of my case, so I'm not sure. Don't put on me that I have a problem with the Voting Rights Act. But so here's the issue. So the premise of the Voting Rights Act is that it comes out of the Jim Crow era when there was states who were engaged in a terrible evil. They were not allowing black people to vote. And the federal government was the good guy that would come in and force these states to become democracies.

18:09And it worked. And now the problem is that the federal government is the wrongdoers. You know, I do not trust Donald Trump with power over federal elections. And I frankly don't trust most of the judges and most of the judges on the Supreme Court with power over federal elections. And at the very least, I think that calls for people like me, and I have historically thought of the Voting Rights Act as something akin to a holy text because of all that it achieved, to reconsider whether it makes sense to centralize this kind of power over elections in something as dangerous as this federal government.

18:53Ian, you're not a simplistic enough guy to say, you know, everything that Donald Trump does is wrong. You take the Supreme Court very seriously. What exactly has happened here with the Trump administration and with the justices that is making you so concerned about the VRA right now? In 2013, in a case called Shelby County, the Supreme Court effectively neutralized the provisions of the Voting Rights Act that required states with a history of racism in elections to, it's called preclearance, to get approval from federal officials before their new election rules could go into place. You know, this was to prevent states like Jim Crow, Mississippi, from disenfranchising black voters.

19:39Voting discrimination against African-Americans was so entrenched and pervasive in 1965 that, to cite just one example, less than 7 % of African-Americans of voting age in Mississippi have been able to register to vote. In contrast, 70 % of white citizens of voting age were registered. And then it would take three, four, seven years before the litigation got figured out so you could strike down the law. And when Shelby County was handed down, I thought it was a catastrophe and it is wrong. I mean, as a matter of law, Shelby County was wrongly decided. So Shelby County got rid of the Justice Department's power to block these laws, but federal judges still have the power to block state laws that they deem to be racist.

20:25And I have seen such bad faith behavior from the Republican justices and from judges on the lower courts that I'm afraid that if they retain that power, they will also use it in bad faith. They will require blue states to draw maps that have more white Republican districts, and they will ignore things like racial gerrymandering in red states. You write that Chief Justice John Roberts has been skeptical of the Voting Rights Act for a very long time. What's his history here? Yeah, so the Supreme Court in a 1980 decision called City of Mobile said that in order to win a Voting Rights Act case, in order to show that a state law discriminated on the basis of race, you had to show that it was enacted with racist intent.

21:17And that's just very difficult to do. You know, judges are not mind readers. They can't probe the minds of state lawmakers to figure out what was in their souls when they passed a law. In the 60s, when the Voting Rights Act was initially enacted, like Jim Crow lawmakers were sometimes very explicit that they were doing things for racist reasons. In one community, however, Tuskegee, Alabama, the population is 6 to 1 Negro. But recently, registered Negroes for the first time outnumbered registered whites. Tuskegee is the home of Tuskegee Institute, a fine Negro college, and the Negro population is largely middle class.

21:56The whites saw it coming. In 1957, the Alabama legislature, afraid of potential Negro political power, gerrymandered the Negro districts out of the city of Tuskegee. But by the 1980s, people who wanted to suppress the votes of minority voters were more sophisticated. You know, they understood that the Voting Rights Act existed, so they weren't saying things like, you know, the purpose of this law is to prevent Black people from voting. And so the Supreme Court placed a very difficult barrier in front of voting rights plaintiffs. There was a bill in Congress to fix that and create the modern law, which says that any state law which results in someone being disenfranchised on the basis of their race, regardless of the legislature's motive, is invalid.

22:44Our Americans of Mexican descent, black Americans, this measure is as important symbolically as it is practically. It says to every individual, your vote is equal, your vote is meaningful, your vote is your constitutional right. I've pledged that as long as I'm in a position to uphold the Constitution, no barrier will come between our citizens and the voting booth. There was a significant faction within the Reagan administration that wanted Reagan to veto that bill. And John Roberts was a major figure in that within that faction. And he wasn't successful, but he clearly has carried that grudge for his entire career because since he became chief justice, it has just been one unrelenting attack on the Voting Rights Act after another.

23:33It sounds like people have been bringing challenges to the Voting Rights Act for decades now. And in general, conservative justices tend to find the VRA problematic. They tend to want to vote to weaken it. Can you make their argument for them? What is their problem with the Voting Rights Act? So I'll make the cynical argument first, and then I'll make like the argument that they've actually made and shall be fair. So the cynical argument is that like, you know, most black voters in particular are Democrats. and so I don't think it is hard for Republicans to imagine that they would have, it would be easier for them to win elections if they didn't have to write state election laws that accommodate the rights of black Democrats.

24:18That's the cynical argument. The argument they made in Shelby County is essentially, I mean, let me not be so dismissive. They don't think racism is solved. But they argue, and I mean, on this point they are correct, that the United States is less racist now than it was in 1960 or 1965 when the Voting Rights Act was solved. And so we no longer need these protections because America doesn't have the same race problems that it had in Jim Crow. And I have two responses to that. One is simply that the Constitution says that Congress gets to enact laws to decide how the prohibition against race discrimination in an election should be enforced.

25:04So even if you think John Roberts is right that we aren't racist enough to justify the Voting Rights Act, the Constitution says it's not his choice. It's Congress's choice. And Congress decided to reenact the Voting Rights Act. So I think judges should have honored that. The other reason why I think he's wrong is because I think back to a case, I believe from the 1880s, that is just referred to as the civil rights cases. The civil rights cases struck down a Reconstruction-era civil rights law. You know, it required public accommodations, you know, things like movie theaters. At the time, I guess it would have been like theater theaters, not to engage in discrimination on the basis of race.

25:46And the Supreme Court didn't just strike that wall down. They said in, you know, just, you know, less than three decades after the Civil War, you know, know, there comes a time when black people should no longer be treated as the special favorite of the laws. And instead, they should be forced to just make their own way and like try to defend their own rights just like anyone else has to in a democracy. And I mean, now that we know what happened to black Americans after that decision, my God, was the Supreme Court wrong about that? And so in your piece, you come down arguing for federalism, for states' rights as a solution.

26:31You know, federalism, the idea that we should devolve power to the states is not something that like people on my political side of the aisle have historically been very favorable to and for very good reason. You know, again, it was the federal government who are the heroes who came in and stopped the Jim Crow states from discriminating against black voters. But it is also the case like one reason why Trump hasn't been able to gerrymander every single state so that he locks Republicans into power in the House of Representatives forever is because states generally draw the electoral maps in the U.S.