Voting Rights Are On The Chopping Block

Written By Leeja Miller

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Transcript:

On Wednesday, the US Supreme Court will hear a second round of oral arguments in the case Louisiana v. Callais. In that case, the Supreme Court will be presented with another opportunity to further gut the Voting Rights Act of 1965, one of the most important pieces of legislation out of the civil rights movement, and one that attempts to get this country closer to our ideal of a pluralist democracy, an ideal which we’ve never fully met but one which the Voting Rights Act helped us move closer towards. Chief Justice John Roberts has been foaming at the mouth for years, eager to have the opportunity to gut the 60-year-old law. Today we’re discussing the case and the devastating consequences that could follow if the conservative justices vote to remove key provisions meant to protect historically marginalized communities from further marginalization.

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Here’s what you need to know about Louisiana v. Callais. Louisiana is divided into 6 districts, each with its own Representative in the House. In 2022, after the results of the 2020 census, Louisiana redrew its district map resulting in only one majority-black district out of the six. This despite the fact that fully one third of the population of Louisiana is black. A group of black voters sued and successfully argued that the new map violated Section 2 of the Voting Rights Act. The 5th Circuit court of appeals, known to be deeply conservative, held in the voters favor and ordered Louisiana to redraw its map in a way that doesn’t conflict with Section 2 of the Voting Rights act. So in 2024, a new map was drawn. In drawing that map, the Republican Louisiana legislature was worried about the political outcome of the new map and so worked to ensure that the new districts would strategically align with their political goals, especially with protecting the districts that elected Mike Johnson, the speaker of the house, and Julia Letlow, a Republican representative with a lot of power because she sits on the House Appropriations Committee. The more power your representatives have in Congress, the more power they have to take actions that benefit you in the state, so it was in the Republican legislature’s best interests to ensure the political safety of those two Representatives as they were redrawing the map to comply with Section 2 of the Voting Rights Act.

The new map included 2 majority-black districts kind of snaking through the middle of the state, including the major cities of New Orleans, Baton Rouge, and Shreveport. Because historical discrimination in housing and white flight from the cities means that most of the Black voting-age population lives in those major cities. Because we still live in a de facto segregated society because we still exist within the consequences of centuries of slavery and marginalization. And if we look at the original Louisiana map with just one majority black district, you can see how the court reached the conclusion that this map was, in fact, a racial gerrymander.

A racial gerrymander is when a state redraws district maps so as to dilute the vote of historically marginalized groups, usually black voters. They do this through two tactics: cracking and packing. Where possible, you divide up black populations so that they will be outnumbered by white voters, effectively ensuring they can never gain enough votes to elect someone they want, that’s cracking, and then you draw a district where as many black voters as possible are included, that’s packing. So you confine most black voters to one district or as few districts as possible, and then ensure that anyone outside that district will have their vote diluted by as many white people as possible. This is of course assuming that black voters vote similarly or as one block, which isn’t always the case but we’ll get into that. In the original Louisiana map, District 2 was the single majority black district. That district includes New Orleans and Baton Rouge, effectively confining most black voters to one district and diluting the votes of all the rest. So one third of the population has a voice in 1 sixth of the districts. In the new map that was redrawn after the 5th circuit said the first map violated the Voting Rights Act, you can see the two districts that are now majority black, which span from Shreveport down to New Orleans. So then non-african american voters sued saying that now THEY were being discriminated against because ANY consideration of race violates the 14th and 15th amendments’ equal protection and voting rights provisions.

Last year, the case came before the supreme court, and they heard oral arguments. Then on the last day of their term last year, instead of making a ruling the Supreme Court announced that they would be rehearing the oral arguments this term, and asked the parties to submit briefing on that constitutional question. As a refresher, the relevant part of the 14th Amendment says no state shall deny to any person within its jurisdiction the equal protection of the laws. And the 15th Amendment says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” These amendments were passed in the immediate aftermath of the Civil War to explicitly address anti-black racism that had prevented black people from obtaining equal protection of the laws and from having a voice in their representative government. It was definitively not race-blind it was meant to right the wrongs of the horrific, centuries-long practice of human bondage in this country in order to attempt to give the people suffering from the long-lasting negative impacts of having endured horrific inhumane treatment for centuries some semblance of equality. That is the spirit of those amendments. And the Voting Rights Act was meant to further solidify those rights enshrined in those amendments because even after the 15th Amendment was passed, many states, especially states like Louisiana in the south, were continuing to infringe on black peoples’ right to vote through things like horribly unfair literacy tests and poll taxes. None of these laws were meant to be “race blind” and were instead explicitly meant to fix centuries of abuse and inequality.

But of course white people weren’t ready to go quietly in the night and accept that maybe they would have to cede some of their power, so the backlash against the amendments and against the Voting Rights Act of 1965 was swift. And today, the common conservative argument against the Voting Rights Act and protections against racial gerrymandering is that being race neutral and “color blind” is the only correct, non-discriminatory stance to take. In effect, by taking race into consideration at all, you are discriminating against me, the white person, and that is against the Constitution. However, unfortunately, we do not live in a race-blind utopia where everyone has gained parity and the only difference in outcomes depends on how hard you work. If you can believe it, a few decades of laws protecting voting rights did not undo a few centuries of LITERAL HUMAN BONDAGE. Black people continue to live with the consequences of overt racism in housing leading to less accumulated generational wealth, concentration into the cities, and low affordable housing stock forcing them to live in less than ideal conditions and then be blamed themselves for the horrible conditions their landlords are responsible for. Black people continue to live with the proven biases against them in hiring practices, violence against them enacted by police, not to mention the day to day racism they have to endure from infancy through adulthood. Whether it's the unconscionably high rates of infant and maternal mortality in black populations compared to the rest of the population or just the racist epithets thrown at people as they’re trying to navigate the world. Not to mention intergenerational transmission of trauma but lord knows that’s too many syllables for your average racist to understand. The POINT IS we have not arrived at a place where we can say race is no longer a factor and everyone is equal therefore any consideration of race at all is racist against the other races. You don’t get to rig the game for 200 years and then claim well now we’ve stopped discriminating so everything is fine and now if we keep talking about how we rigged the game for 200 years that’s actually discrimination against me. But that’s exactly how the MAGA movement thinks.

And so, returning to Louisiana v. Callais, you have a group of non-african american voters doing just that, saying this new map is discriminatory against me because it took my race into consideration. And now the Supreme Court has the opportunity to rule that section 2 of the Voting Rights Act is unconstitutional, and undo all the protections it affords much like they did in Shelby County v. Holder in 2013 when the Supreme Court did away with pre-clearance, which is a provision of section 5 of the voting rights act which required any new law regarding voting rights passed in states with histories of discrimination must first be approved by the Justice Department. Back in 2013 the court decided hey guess what we’ve reached a place where we no longer need to control against these racist states, they’ve done their time, we’ve all moved on, and now our society is just and equal, isn’t that grand. And they did away with pre-clearance, and instantaneously within hours and days and months those historically racist states, well what do ya know, they passed new racist anti-voting laws. Weird it’s almost like a few decades of the Voting Rights Act didn’t undo a few centuries of literal human bondage, wild. Like we literally chained human beings to auction blocks and sold them to the highest bidder for centuries. We shoved them into boats and stacked them on top of each other like cattle. And then we made a thriving economy worth billions of dollars on the back of their free labor, labor we never paid for, labor that created wealth that white people still benefit from today. And then we fought a war and said hey you’re free now, but no you can’t live there, no no you can’t live there, no you can’t have a voice in your representation, no you can’t go to THAT school, no you can’t get a mortgage, no you can’t drive through that town after dark, no you can’t expect to live through the birth of your child, no you can’t get that job. But in MAGA world we need to move on from that like literally why do you keep talking about it why do you hate your country so much, we passed an act about it, it’s been SIXTY YEARS!! We’ve moved on, can’t you just focus on the future???

And the “non-african american” litigants in Louisiana v. Callais are boiling it down to an oversimplified argument–race was taken into consideration when drawing this map with 2 majority-black districts. That violates my equal protection under the 14th amendment and my right to not have my vote abridged on account of my race under the 15th amendment. But that argument is disingenuous. There’s a reason we look to the intent of the people who passed a law in order to determine how to interpret a law. Lawmakers cannot possibly anticipate every scenario that could possibly occur in relation to a law they are writing. It’s not possible and even if they tried it would lead to writing absurdly long, difficult to understand laws, it would take SO much longer to get those laws passed, and they STILL wouldn’t fully anticipate every possible instance when the law could be implicated. Because of this, we need the courts to step in when there’s a controversy and tell us what the law means and how it is applied to this specific, unforeseen set of facts. There are many ways courts do this, some of which depend on the case and some depend on the judge’s ideology. You can look to the plain meaning of the words today, what does the dictionary say they mean. You can look to the meaning of the words at the time they were written–what does history tell us they were supposed to mean? And you can look to the underlying discussions on the Congressional record and in other primary source documents that can help indicate based on how these lawmakers discussed this law, this is likely how they would come out on this question. Or they addressed this question in their debates and this is likely how it would come out, etc. Each of these various modes of interpretation are helpful, in my opinion strict adherence to any one of them is shortsighted because sometimes the way a word was defined when it was written doesn’t square with today’s reality, and so on. All laws are flexible and debatable and open to interpretation. If they weren’t, every lawyer would be out of a job.

ANYWAY all that to say it is deeply important to look at the context of laws and the constitution to understand what the meaning is when applied to a set of facts, especially in this context where we are still very much dealing as a society with the consequences of slavery and racism. And the fact is that the 14th and 15th Amendments are not color-blind amendments, they were passed during a very specific part of our history immediately after the civil war to right the wrongs of centuries of human bondage and they ought to be interpreted as such as it applies to the voting rights act. We have not solved the issue of racism in this country and we will in many ways never fully heal the wounds that that level of horrific violence causes to a society. There are people alive now whose grandparents were enslaved by white people. White people don’t get to turn around and tell them alright lets wrap it up it’s time to move on now. But the litigants in Louisiana v Callais would have us believe that the writers of the 14th and 15th amendment had them in mind when they were writing the Amendments and that their right to not give black people an equal voice in voting is equal to or actually supersedes the right of black people having an equal voice in voting. That in blocking their right to discriminate against black people the court is discriminating against them.

They are also trying to paint a picture that the Voting Rights Act and the subsequent legislation and cases interpreting it create a simple rule where states are allowed to consider race when drawing district lines in favor of black people but not in favor of white people. The reality is that there is a complex web of guidelines and restrictions when it comes to drawing district lines under the voting rights act that help ensure the very thing I’ve been arguing for–that historical and present day context are taken into consideration, that the maps being drawn are truly equal and fair, to try to counterbalance the overt racism exhibited by states for centuries with regards to voting. It’s not a simple, blanket, we just give black people as much power as possible.

For example, a case called Thorburg v. Gingles established what are called the Gingles factors for bringing a section 2 claim of voter dilution. The NAACP Legal Defense Fund created a helpful primer, I’ll link it in the sources. Those factors are quote “(1) the minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) the minority group must be “politically cohesive”; and (3) the majority must vote “sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.” After considering all those factors, the court must then determine whether the plaintiffs bringing the claim have sufficiently proven, based on a totality of circumstances, that minority voters quote “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” ADDITIONALLY, courts tend to also require plaintiffs to show that “(1) the challenged practice “impose[s] a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice’”; and (2) the “burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” This all must be proven by plaintiffs in order to win a case claiming that their vote is being diluted. There are clear, high bars that must be passed in order to balance the competing interests of the state, of white people, and of people of color, with the aim of actually ensuring equality, taking into consideration the centuries of inequality, and not simply to say well we’re all equal now, let’s not think of the past. Why can’t we all just move on.

And on Wednesday, the Supreme Court will have the opportunity to hear oral argument and make their own determination as to whether to take all of the previous precedent, the spirit of the laws, and the context of history into consideration (things they claim to strongly adhere to in cases that benefit the conservative cause) OR to decide it’s time we all moved on from this whole race thing and just pretend everything is fine. You can listen to oral arguments live as they happen around 9:30am DC time at the Supreme Court website or on C-SPAN. Sometimes the way the justices question the lawyers is pretty indicative of their feelings on the matter.

Like I said, Chief Justice John Roberts seems poised to push for doing away with Section 2 on the grounds that it’s unconstitutional. According to the Associated Press, Roberts quote “has long had the landmark civil rights law in his sights, from his time as a young lawyer in the Reagan-era Justice Department to his current job.” Roberts wrote the majority opinion in Shelby County v. Holder, the case that gutted pre-clearance, saying quote “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” We’re all fixed, nothing to see here!

But that being said, just in 2023 in a case called Allen v. Milligan, the Supreme Court, in a 5-4 decision, held that a similar map in Alabama violated Section 2 of the Voting Rights Act, with Roberts writing that Alabama was attempting “to remake our section 2 jurisprudence anew.” In that case, Roberts and Kavanaugh surprised us all when they joined the liberal justices in finding against Alabama’s map in that case. That could happen again, however the fact that this case is being RE-heard this term indicates the court might be ready to shake things up, as they don’t tend to do that. And in the Alabama case they were looking at whether the map violated the voting rights amendment, not whether the voting rights amendment violates the constitution–it could be that this reargument more properly tees up the Voting Rights Act for a thorough constitutional question, giving the conservative justices a good whack at undermining the whole thing.

After Wednesday’s oral arguments, the justices likely won’t issue a ruling for a while, though Louisiana has elections in April and so have asked the court to make a decision as soon as December or January in anticipation of that election. They could hold very narrowly that in this instance this particular map from Louisiana isn’t a good map, but the state can go and try to create a different one that more complies with section 2 and the constitution. Or they could make a broader ruling saying actually this isn’t about this specific map, this is about how the entire section 2 of the voting rights act is actually in violation of the 14th and 15th amendments and strike down the whole thing.

A piece by Richard Hasen, professor of law at UCLA, for Slate, lays out what would happen if the Supreme Court decides against the Voting Rights Act in this case. Quote “If the Supreme Court moves forward with this interpretation, it would be a sea change to voting rights law. … It would be an earthquake in politics and make our legislative bodies whiter and our protection for minority voters greatly diminished. Even if the court less drastically says that Section 2 cannot be used to require the second congressional district in this case, such a superficially more minimal ruling would mean the quick unraveling of most Section 2 districts, because if the facts in Louisiana don’t justify drawing a second district, most other Section 2 claims would fail too.”

“Any decision to strike down what’s left of the Voting Rights Act could kick off the start of a new civil rights movement and more serious talk of Supreme Court reform in the midst of crucially important midterm elections. Justices fundamentally hostile to the rights of voters place the court increasingly at odds with democracy itself.”

That is what’s on the line this Wednesday during oral arguments. I’ll be back with a new episode on Wednesday and I’ll let you know in that episode if there’s any tea leaves to read in how the justices act during arguments, given the track record of this current court I am not holding my breath for it to be good news.

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And if you liked this episode, you’ll like the one from Friday about Russell Vought, world’s most boring villain.

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