Is SCOTUS Diluting Your Vote? (with Doug Jones)

Hey folks, Joyce Bantz here. Creed and I are out with a new episode of the Insider Podcast. This week we discuss how Jerry Mandering in Southern States is threatening voting rights. Joining us is Doug Jones. Doug is a former senator from my home state of Alabama and a former US attorney for the Northern District of Alabama. In fact, he was my boss. Now he's running for governor of Alabama. Then we break down a judge's decision to throw out the criminal charges against Kilmar of Briego Garcia. Listen to the full conversation now in the Insider feed. And if you're not yet a member, we hope you'll join our community to help support our work and get access to exclusive subscriber benefits. Head to cafe.com/insider or stay tuned.substac.com. Now enjoy a free excerpt from our conversation. So why don't you start with the beginning? Why we're talking about the Voting Rights Act. What happened in Louisiana? What's happening in some of these other states? Joyce, you want to set it up? Yeah, I think so. I mean, we've talked about Kale. Kale is the Jerry Mandering decision that essentially says it's all good. Southern states have out it. And they have out at it. But Alabama is a little bit of a different case because Alabama had a case called Milligan that was in play, a case about Jerry Mandering. And under Milligan, Alabama was forced by the court to add a second black opportunity district to its maps. And so for the first time ever after the last election, Alabama had two black Democratic members of Congress, two really exceptional people. And then that litigation was ongoing after Kale, the legislature, rushed to make new maps. Doug, why don't you take it from there and tell us what the state of play was until this morning when the three judge panel made this most recent decision in Milligan? The Milligan case is, it really complicated. It is not as straightforward as some of the other Jerry Mandering things going on in the country or us, but particularly in the South. In part because the Milligan case, they made a determination that the state maps were illegally Jerry Mandered, not only based on the voting rights act, but also on a 14th amendment grounds and a denial of the rights of a minority population. So there were two issues and Kale was only decided about the voting rights in section two. Our case, the Milligan case is on appeal. But remember Joyce, that in the Kale opinion, justice elitos specifically distinguished the Alabama case and literally said at the end of the opinion that he took the descent to task because he said that he said we've overruled the Milligan case and on the Supreme Court as an Allen case, but said we've overruled that case, but we have not. But what they did do was to dissolve the injunction that prohibited the state from using their Jerry Mandered maps and send it back to the three judge panel. And that's where we've been having some hearings. And literally just this morning, the three judge panel ruled that the state would be enjoying from using their old maps. But it's still very complicated. We know it's going to go to the Supreme Court. We don't know whether or not they're going to require an opinion. The bottom line for Alabama is that number one, you had some kind of bad law. You're in from the state that's frankly in order to the benefit of the plaintiffs. I mean, really kind of bad law. I think there's just no doubt about that. And the second thing that right now, the legislature in their bill, they rushed this thing through so quickly. I mean, literally the governor called a special session within 48 hours after the collate decision came down. And they rushed through this bill and it has created a mess. And I think that in part, I haven't seen the opinion from the three judge panel, but I think that in part contributed the fact that look, they're going to keep the status quo because remember that decision, that collate decision came down just days before our primary election. And so it affects four out of our seven congressional districts. So I will see where this goes. But as of right now, we're going to be using the old maps, not the Jerry Manderd maps, that's the state of Alabama. So rushed and so very proud of about trying to get rid of at least one of the minority districts for the state of Alabama. Yeah, I mean, this opinion that just came down, I'm not sure if you've had a chance to see it either. It's 102 pages. I've only had a chance to read the beginning. I don't read that fast, Joyce, as you know, the paragraph that jumps out. And I think this is only on page three, which tells you how far I've been able to get. This is the three judge panel. They say, we do not lightly intrude in state affairs, but our previous review of the undisputed evidence left us in no doubt that Alabama's legislatively enacted plan. Intentionally, intentionally is the key word here, discriminated based on race in violation of the Constitution. Our reexamination in light of Kalei yields the same conclusion. And so they enjoy Alabama from using the discriminatory maps. I mean, that would seem like a normal conclusion in any world, but I guess it goes to the Supreme Court. It'll go straight there. What do you think will happen, Priet? Nothing good, which is I think the spirit in which you asked the question. One might say it was almost for you, Joyce, a rhetorical question. I mean, I have a little bit of hope, and I'd love to hear what Doug has to say on this. Where does that hope come from? Because just a so to my or, and this is in the dissent, admittedly, but in the dissent, she really invites Alabama to do this. And she invites them to do it because what separates this case from Kalei is the evidence of intentional discrimination. It's worth saying that two of the judges on this panel, by the way, are Trump appointees. And so I wonder if the majority that decided, Milligan in the first place and said that Alabama could not get away with intentional discrimination, the majority that included Roberts and Kavanaugh. I wonder if it might not hold here, maybe if not for principled reasons, but just because the court has really been taking a beating post Kalei. And perhaps this is their one opportunity to show something that resembles good faith. Do you think I'm too optimistic, Doug? No, not at all. I have the same opinion. In fact, I may be a little bit more optimistic than a little. I just think that a combination of things, with justice, Alito, specifically talking about the Alabama case in the Kalei decision and distinguishing it, and talking about that it has not been overruled in that case is on appeal. And that one paragraph you read, I think is really strong because that's the thing that jumped out with me when the Kalei decision came down that the 14th Amendment grounds still exist and the court very specifically in that paragraph that you read said, look, the evidence is still there. And it's even probably even more so at this point. So I just got to believe that a decision that was made just about three years ago that included the Chief Justice and included justice, Kavanaugh, that they're not going to lightly overturn that and say, oh, well, this is a new day. And even though the court said this ground is still valid, still strong, which is what we ruled on the last time, I got a hard time believing that given just what I call just the shaken bank, all this crazy stuff that's going on with our Alabama legislature that they would overrule that. Now, having said that, not having seen the whole opinion, my concern is that a lot of the chaos that the evidence was about the other day at this hearing was because the state in their legislation prohibited the canvassing of votes from our primary just last week. And if the three judge panel is saying, well, it's just a lot of chaos, but we can't enjoy that. We've got to go forward and have this August primary just using the other maps. I worry about that a little bit. But at the end of the day, I think I'm a little bit hopeful. And I think, Joyce, you nailed it at the end that all of a sudden this court has lost so much credibility. It has lost so much institutional credibility. And it's seen as an arm of a political party that they may pull back at least right now and let the dust settle a little bit more and say, we're not going to hurt anything about letting Alabama continue to use the maps that they've had. They've got plenty of time before 2028 if they want to do it. So that's why I'm still hopeful. But I agree with you guys. You know, nothing will surprise me out of this court anymore. Why is it that you folks and some others believe that the court itself thinks that it's lost credibility and among whom and do they care about those people and do they care generally about what anybody thinks of them? I think John Roberts cares about the legacy of the court that bears his name, although he's done some things that I think history will judge very harshly, the criminal immunity case for one among them. I think that right now on this particular issue, it may be that intentional discrimination, the Supreme Court saying intentional discrimination may be a bridge too far for John Roberts, which would mean it would come down to Calvin. I agree with that and also. tend to believe that even Justice Kavanaugh, I think he is concerned about the court and the institution, whether or not he lets his partisan leanings overrule that, I don't know, but I just think that there's a piece of that. And quite frankly, I'm not sure that that's not the case with Amy Coney Barrett, with some of the things I've seen. On the other hand, one could look at what's happened at this court over the last year or so and think there are six members of that Supreme Court who don't really give a damn anymore. And let's let the politics outweigh everything. It's certainly not an illegitimate view because of the way things have gone. Can I ask a slightly different basic question to the two of you, venerable experts, among the Supreme Court conservatives, among the six? How many of them do you think, whether they decide one way or the other on a particular case in Alabama, Louisiana, or anywhere else? We have deeply and honestly and genuinely in the purpose of the Voting Rights Act. Well, I mean, the Chief Justice made that clear when he wrote the opinion and showed the calendar. Thanks for listening. To hear the full episode, become a member by heading to cafe.com/insider or stay tuned.substac.com. And thank you for supporting our work. [music] Running a business shouldn't feel like surviving a software group project, one after accounting another for inventory another for sales, and somehow none of them talk to each other. That's where Odo comes in, an all-in-one business management software that brings every part of your business together. 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