The Supreme Court's gerrymaxxing

0:00By now you've surely heard that the Supreme Court just gutted the Voting Rights Act. Vox's Supreme correspondent Ian Millheiser says there's two ways of looking at this decision from our highest court. The more cynical answer is just that this is the most conservative Supreme Court we have had since at least the 1930s. It is also the most partisan court that we've had ever. And like the makeup of the justices matters here. We have six justices now who just disagree with the Voting Rights Act. And less cynical, Ian? The slightly less cynical answer here is that the Republican justice's view is that, I mean, there's not nothing to this view, is that America is less racist in 2026 than it was in 1965.

0:48Either way, the states are already gerrymandering in response. And just six months before our midterm elections, the Supreme Court's gerrymaxing on Today Explained. Support for today's Explained comes from BetterHelp. May is Mental Health Awareness Month. That's what May stands for. A reminder that whatever you're going through, you don't have to go through it alone. There's a therapist out there who's equipped to help you through it. You can give therapy a try. BetterHelp makes it simple to connect with a licensed therapist online by doing the initial matching work for you so you can focus on your therapy goals.

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1:56I bet she is. Kara Swisher wants to live forever. New episodes streaming Sundays with a CNN subscription. Go to CNN.com slash subscribe to start watching. Oh, yay. Oh, yay. Oh, yay. All right. So the Supreme Court on Wednesday in a case called Louisiana v. Calais struck down a Louisiana voting map. They said it illegally used race to create a majority black district. But of course, it was a 6-3 decision. The court's conservative majority said they weren't dismantling the Voting Rights Act, which was meant to protect the black vote in the South. The court's liberal three said they were doing just that.

2:34But the proof is in the pudding. So we asked Ian Millhiser to tell us how states are responding to the Supreme Court decision today. And it makes the most sense to start in Louisiana. That's right. So almost immediately after the decision came down, Louisiana actually suspended its ongoing U.S. House elections. It announced that it's going to start them up again after it redraws the map to make them whiter and more Republican. And they're going to change it to make more Republican districts. Does that mean they're going to change the map to create whiter districts? Yes. What the law said before Calais.

3:12So it wasn't every state had to draw more majority black and majority Latino districts. It was generally states where there are two things that were present. One is residential segregation. So just like black people tend to live in some neighborhoods, white people tended to live in different neighborhoods. The second factor is what's called racial polarization. So white people vote for Republicans, black people vote for Democrats. That's a racially polarized electorate. And what the Supreme Court recognized in a 1986 case is that when you have those two things present at the same time, it tends to lead to whichever racial group is in the majority controlling all of the seats or significantly more seats than they should based on their population.

3:57Let's just assume that the court was correct in finding that there was severe polarized voting in this case. If you use the district court's interpretation, you could call it correct. But what the district court interpreted polarized voting as, Your Honor, was simply if more whites vote for whites and more blacks vote for blacks, then you automatically have polarized voting. They don't even need to have any nefarious intent. It's just that they're going to pass maps that serve their own interests. And if white people are in the majority and if white people all belong to one party, they're going to pass maps that benefit that party and you're going to wind up having the black people in the state cut out of representation.

4:37And so the Supreme Court interpreted the Voting Rights Act in 1986 to say, no, no, no, you can't do that. At least in those states, sometimes there will be a requirement that they have to – that those states have to draw an additional majority black, additional majority Latino. I mean it could conceivably be another racial group. If you had a state that was majority black and the same phenomenon was operated to prevent white people from getting representation, then under the old rules, theoretically, you could have a court order saying you have to draw more majority white seats. But the idea is you don't want to have one racial group that is cut out of power because that's just what tends to happen when you have residential segregation and racial polarization.

5:20OK, so Louisiana is going for it. What about other red states? What about blue states? Are they all getting in on this? So my honest answer to that is I have to be a little cautious. We are recording this on Monday morning and things are moving so fast that by the time this episode airs, my answer may have changed. But as of right now, there are four red states, Louisiana, as you mentioned, plus Tennessee, Alabama and probably Mississippi, which look likely to redistrict before the midterms. Georgia has said it will not move before. Georgia's governor said that that state will not move before the midterm.

5:58So that's good news for Democrats. There are some states where Democrats could have potentially passed retaliatory gerrymanders to try to counterbalance those four states I just mentioned. Some states that have been under discussion where that could happen are New York, Colorado, Oregon, Maryland, and New Jersey. But I don't believe that any blue states have formally begun the process of redistricting yet. And in some of those states, there are constitutional provisions or other things that need to be worked around in the same way that we previously saw in California and Virginia. The timing here cannot be ignored.

6:36I mean, we've had this story ongoing this whole year of various states trying to redraw their maps to get Trump a few more seats or to counter Trump trying to get a few more seats. What Texas is doing, actually, we're drawing districts to provide every voter in this state the opportunity to cast a vote for the party in Canada of their choice. They fired the first shot, Texas. We wouldn't be here had Texas not done what they just did. Virginia created a plan that was wholly responsive to the actions of other states. I am going to issue a proclamation to convene a special session of the Florida legislature to do redistricting of congressional map in the state of Florida.

7:20And then the Supreme Court enters the chat and says, here's a tool to do even more of what you're doing, red states? Yeah, no, that's exactly right. I mean, the Supreme Court has been enabling this for a good while. So back in the 1980s, there was a case called Davis v. Bandemir. I don't think the Supreme Court has ever actually struck down a partisan gerrymander before. But essentially what the court said in Davis is we're not striking down these maps. What would be the most fair thing in your view? Is it straight proportional representation? No, we are. Again, we are not advocating this proportional representation.

7:53It was some Indiana maps that were at issue in Davis. And of course, we're not striking these maps down, but states be careful because if you gerrymander too much, we might strike down your map someday. And that was kind of the approach that the court took for about 30 years is it never actually struck down a partisan gerrymander, but it always left open the possibility to watch out if you do something too crazy. You know, we might come for you and we might say that that map is unconstitutional. And then in 2019, there was a case called Rucho. And Rucho kind of said the quiet part out loud. Each case, unelected and unaccountable federal judges would be deciding whether Democrats or Republicans should have more or less political power in each affected state.

8:45Now, if the Constitution said that was our job, we would do the best we could. But it doesn't anywhere. If you are the Republican Party and you control the Indiana state legislature and you can draw a map that elects zero Democrats, bully for you. You are allowed to do that now. The federal courts play no role whatsoever in partisan gerrymandering. And that shift from merely holding out the possibility that someday a partisan gerrymander might be struck down to stating definitively, nope, never, ever, ever, ever going to do it is I think what set off the gerrymandering wars that we're in right now.

9:23That's why we've potentially entered a world where every two years, every time control of a state legislature flips, they're going to redraw their map. So, you know, I live in Virginia. We now have a 10 to 1 map. If Republicans gain by gain control of the Virginia state legislature, I imagine they'll draw a 10 to 1 map in the other direction. And that's just going to be our future. It doesn't seem like very healthy democracy kind of vibes out here, Ian. No, it's terrible for democracy. I mean, yeah, I mean, you are right that something has gone horribly, horribly wrong with our democracy. You know, and this is a consistent pattern with this Supreme Court.

10:06You know, I'm working on a piece right now about how like the Supreme Court is not very good at knowing when it needs to shut the fuck up. And, you know, and it's not just in the redistricting context. Like the same thing happened in the campaign finance context. So you've probably heard about Citizens United, the case from maybe 15 years ago, saying that like billionaires could just throw money and corporations could just throw money. Citizens United was mostly about corporations. But like – Classic. Before Citizens United, if you were a billionaire or if you were a corporation and you wanted to find some way to just throw money at an election, there were ways to do it.

10:45But the reason why people didn't do it is – or didn't do it as aggressively as they do it now is the same phenomenon, is that the Supreme Court still held open the possibility that we could have campaign finance laws and if you did something really, really bad, you might get in trouble for it. And that in Citizens United, the Supreme Court made it very, very clear that it didn't believe in campaign finance regulation and that wealthy donors have free reign to do almost anything they want to do. The court's First Amendment analysis is based on the metaphor of an open market marketplace of ideas.

11:20But the court never actually engages with the reality of how that marketplace operates or indeed with virtually any practical concerns, whatever. And that's what opened up the floodgates.

11:37a lot of the time the thing that was keeping our elections you know humming along and you know not operating this way where it's a total free-for-all wasn't necessarily that there was a specific law that prevented things from going haywire if that people were afraid of the possibility that if they pushed too hard the courts would push back at them and what this supreme court is done over and over and over again. It did in the Trump immunity case where it said that Trump is allowed to send the Justice Department to arrest his enemies. And then, you know, you have the Jim Comey prosecution. I mean, this court does not know when to shut the fuck up.

12:13It does not know when it's better to leave a little bit of ambiguity in the law so that people don't go buck wild.

12:25No more cursing when we're back on Today Explained. We're going to hear from one of the ACLU lawyers who was on that Kalei case at the Supreme Court.

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16:12This is Today Explained. Sophia Lynn Lakin, director of the ACLU's Voting Rights Project. OK. And does that mean you were involved in this case at the Supreme Court, Louisiana versus Calais? That's correct. I was one of the attorneys sitting at council table in October. And what was the vibe you got back in October? You're like, oh, here we go. The justices certainly had a lot of questions. And this particular outcome that we are seeing right now is one that came up during oral argument, in part because the Solicitor General of the United States did raise this, or the lawyer for the Solicitor General's office did raise this in their briefing and an argument as what they termed it as a tweak or an update, a modification to the existing law and the existing framework that we've been using for decades that the Supreme Court affirmed just two years at the time prior in a case called Allen v.

17:16Milligan. But it's really an evisceration of Section 2 of the Voting Rights Act, not so much as they've been calling it an update. All right. You guys were at the Supreme Court in October defending the Voting Rights Act. The Supreme Court, as you see it, just eviscerated a crucial component of the Voting Rights Act. Louisiana, at least, is trying to stop an election in the middle of an election to redraw the maps. What does the ACLU do now? What's the plan? What's the plan? We don't think this is legal. Surprise, surprise. And certainly not only do we not think that the governor has no authority to do this, obviously were worried greatly about the rights of voters who have already cast their ballots and the confusion and chaos and disruption this is already going to cause.

18:11And so there was already a lawsuit filed. There will be more. And we are in court challenging that. We're hearing indications that other states are interested in plowing forward following Louisiana's lead here. Obviously, Florida had already had the special session planned. Mississippi has one that they're contemplating as well and has already been announced. So unfortunately, we're living in a time when you've got politicians who are very, very willing to take whatever opportunity that they have to basically accrue power to themselves. And that's unfortunately really, really disappointing, to say the least.

18:50We're also living in a time where, let's just say, black Americans don't vote as a block. We saw story after story after the 2024 election of black voters abandoning the Democrats and voting for Donald Trump. So how are you guys at the ACLU right now thinking about these partisan gerrymanders, which end up being racial gerrymanders, which the Supreme Court saying that, you know, the United States legislatively doesn't need to protect anymore? Look, gerrymandering, gerrymandering in whatever form and whoever it's done by is not a good thing for a country that likes to say it is a democracy. We want voters to be able to have an ability to hold their political leaders accountable, right?

19:46If they do things, if they make policies that are bad for their communities or bad for their well-being or bad for their economic opportunity, you want voters to be able to speak to that, right, at the ballot box. And gerrymandering really turns that on its head. And you get the politicians you've, I'm sure, heard this many times. And I will say it again. You know, politicians shouldn't be choosing their voters. Voters should be choosing their politicians. And that's, you know, gerrymandering flips what we should be seeing in a democracy on its head. But aren't we also gerrymandering districts at the same time to preserve minority votes?

20:29And haven't we been doing that for decades? I would not say that in the least. Right. That is that is the false equivalency that, you know, people are calling in when they're celebrating this Louisiana versus Calais decision. Right. What voters of color have been asking for and what the Voting Rights Act have been protecting is just an opportunity to participate on equal terms in that political process and bring them up to basic fairness. Let us march on ballot boxes. Until brotherhood is more than a meaningless word at the end of a prayer, but the first order of business on every legislative agenda.

21:13Let us march on ballot boxes. But even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. And that is what is being, I think, undersold here or completely perverted when people talk about what's going on with this ruling, with what vote dilution means and diminishing voters of color and what we've all been trying, the project of the Rowning Rights Act for the last 60 years. But the problem we have in this country now is that not everyone sees it that way.

22:08That is unfortunately part of the problem. And, you know, one of the things that, you know, certainly we at the ACLU partners across the board have been trying to yell at the top of our lungs, right? How do we shift that narrative? How do we get people to understand that you don't cure racism or the effects of centuries of Jim Crow and structural inequality and all the things that we aspire to and that there's a promise of the Reconstruction Amendments, there's a promise of our country, there's a promise of being here, calling ourselves American, right? by ignoring problems in order to fix them.

22:51You need to wrestle with them in order to bring us to a better place. And that's the unfortunate place that we are. And it's the work that we have cut out for us as we, you know, take this time and this moment to think about how do we, you know, I think this is really a moment, a call to everybody of conscience to renew, to have a renewed civil rights movement and, you know, move the ball forward again. That sounds nice. It doesn't seem to be happening yet, but who knows? Maybe things will get so bad that we get there. In the meantime, what we're left with is this tit for tat. Texas redraws, California redraws, Missouri redraws, Virginia redraws.

23:31When you see Virginia and California redrawing, do you feel as badly as you feel when you see Texas and Missouri redrawing? This is not good for democracy. This is not good for voters who want to have a say in what happens at their community, not just, you know, at the national federal level. Right. But I do think it's important to understand why this started in the first instance. What precipitated this kind of race to the bottom when it comes to gerrymandering in this tit-for-tat kind of way? And how did we get here in the first place, right? This sort of very brazen, blatant attempt to grab power.

24:13And that started with President Trump pushing states just to open this Pandora's box with Texas. I won Texas. I got the highest vote in the history of Texas, as you probably know. And we are entitled to five more seats. And, you know, seeing California respond in kind and other states in kind, I think that is a very foreseeable consequence when that door was opened at the end of the day. So what does the ACLU see as its role in this race to the bottom? You know, we're going to continue to push back with every single tool that we have, including litigation. Obviously, there have been attempts to rein this in and get our Congress to actually take action here.

25:01You know, Congress has authority to act and, you know, we need them to do so. And today, yesterday's ruling or two days ago now, Thursday's, Wednesday's ruling removes any remaining excuse for inaction, I would say. So, you know, whether they will move, obviously, is a question, but they certainly have a role to play in this. And, you know, we're going to be doing the same at the state level, pushing for state voting rights acts, pushing for provisions at the state level constitutions to try to do what we can to rein in the excesses that we anticipate coming from this ruling we're already seeing.