Supreme Court Strikes Down Louisiana Congressional Map

From the National Constitution Center in Philadelphia, this is We The People. I'm Julie Silverbrook, Chief Content and Learning Officer. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. Last week, the Supreme Court struck down a Louisiana Congressional map holding that it violated the Constitution's equal protection clause as an unconstitutional racial jerrymander. In Louisiana versus Calais, the court said that the voting rights act did not require Louisiana to create an additional majority minority district. For decades, section two of the Voting Rights Act, or VRA, has been central to how courts evaluate whether or not an electoral map dilutes the voting power of minority communities. In its six-three decision, the court reframes how the VRA should be interpreted and updates the legal framework that will guide states moving forward. In this episode, we'll explore the majority concurring and dissenting opinions and what this ruling means for the future of the Voting Rights Act and congressional district. To help us unpack the court's ruling, we are joined by two leading election law scholars. Edward Foley is a professor of law at the Ohio State University where he directs its election law program and is widely recognized as one of the foremost experts on election law. He is the author of numerous articles in law reviews and two books, including presidential elections, a majority rule, and ballot battles, the history of disputed elections in the United States. He also writes a monthly column, Justice Democracy in Law for Scotus Blog. Ned, welcome back to We The People. It's great to be back. Thank you. And Michael Morley is a professor of law at Florida State University where his research focuses on election emergencies, the Constitutional Right to Vote, and the Electoral Count Act. He has appeared on C-SPAN, court TV, Fox News, and numerous local news programs, and has been quoted in a wide range of national publications. His work has been published in many of the nation's top law reviews. Michael, welcome back to We The People. Thanks for having me. Ned, before this case, what was the state of play for the Voting Rights Act, especially section two, and how were courts generally approaching vote dilution claims? What did plaintiffs need to show under the court's existing framework prior to the decision in Calais? Sure. Well, the state of play was quite complicated because there was both the Voting Rights Act jurisprudence under section two, which is the relevant section here. But then there was also this constitutional doctrine that comes from a case called Shaw versus Reno under the Equal Protection Clause. And for decades, really, the court itself and election law observers had seen that these two strands of jurisprudence had been on a collision course or a potential collision course that had been avoided up until this Calais decision. So the first component of that is section two. And that adopts what Congress wants in terms of a results test. And Congress amended the Voting Rights Act section two in 1982 to insist that it not be limited to intentional vote dilution of minority voters, but that any redistricting map that results in minority vote dilution would be subject to potential liability under section two. Well, the easiest way to remedy a map that under represents black political power, for example, is to redraw the map to create a new district that creates another majority black district. But doing so obviously takes race into account when you remedy the vote dilution in that way. But taking race into account is the problem under this separate line of cases that starts with Shaw versus Reno in 1993. And so what the Calais decision of last week is tries to sort of once and for all handle that conflict that had been emerging for decades. Michael, what actually happened here? Walk us through what Louisiana did with its electoral map, why it drew a second majority minority district, and how that decision, which was in part an effort to comply with section two of the Voting Rights Act led to this constitutional challenge. Sure. So to understand what happened in Calais, it's necessary to start with some back story about another case. After the 2020 census, Louisiana was apportioned six seats in the US House of Representatives, and it had a redraw its congressional district to account for populations shifts within the state. In 2022, it adopted a map called HB1, which created a one majority minority district, district number two, which covered the New Orleans area. And in a case called Robinson, the plaintiffs challenged this map on vote dilution grounds under section two of the Voting Rights Act. They argued that racially polarized voting existed in the area, that it was possible to draw another reasonably compact majority minority district, and that the totality of the circumstances suggested that black voters were unable to elect the candidates of their choice in the area. And so a federal district court entered a preliminary injunction requiring the state to draw a second majority minority district. In response, the legislature eventually drew a new map called SB8 that consistent with the court's preliminary injunction contained two majority minority districts. It retained the same district as the previous map around the New Orleans area, and then it created a second district that stretched an a relatively thin line diagonally across the majority of the state connecting Baton Rouge with Shreveport. So this map was different than the ones that the Robinson plaintiffs had proposed because those plaintiffs maps would have jeopardized the seats of a Republican incumbents in the in the house, including the Speaker of the House and the the majority leader. So a new lawsuit, Calais, was filed to challenge this new map, to challenge SB8 on the grounds that it was an unconstitutional racial gerrymander in violation of the 14th amendments equal protection clause. The district court agreed with the plaintiffs finding that the creation of that second majority minority district was unconstitutional because race was the state's primary consideration in determining its boundaries. And so as Ned said, this case involved competing in paratives, right on the one hand, section two of the Voting Rights Act, which is what the first court was focused on enforcing, requires states under certain circumstances to place substantial weight on racial considerations when drawing district lines. While at the same time, the 14th amendments equal protection clause, which was the main focus of the second case, the Calais itself generally prohibits states from making race its primary consideration when drawing legislative districts. I want to get into the holding a little bit and then let's start with you. What did the court ultimately hold here and how did Justice Alito, who was writing for the majority frame the court tension between section two of the VRA and the equal protection clause? Sure, well, it is a bit complicated, but I'll try to unpack it as best as we can. All in Malay, what Justice Alito says for the court is that he's doing a reinterpretation of section two and what section two requires in order to avoid some of the constitutional problems that we were just talking about. So I think that it's fair to say the main thrust of the majority opinion is a rewrite of the statute. As I mentioned, the statute used the term results and that was in the 1982 amendment. And that was in response to a prior Supreme Court decision that it limited section two of the VRA to intentional discrimination or intentional vote dilution. And Congress said, no, no, no, we don't want that. We want a results-based test, which means that if maps have the effect or the result of causing minority vote dilution, that can trigger liability. What Justice Alito does is essentially turn the statute inside out or upside down or how everyone is saying it because he basically recreates an intent standard even though the statute's a results test. Now, he says that we don't quite require a complete proof of intentional discrimination or intentional vote dilution. But if you go through the entirety of the opinion and you see how he discusses what plaintiffs actually have to do to win a case, it's functionally become an intent standard all over again. At least I think that's an accurate description. So he's, again, quite conscious and candid in saying he's motivated by constitutional interpretation to do this. I think many listeners will know the canon of constitutional avoidance, which is you try to can through statutes to avoid a constitutional problem. And I think everybody believes that that's a good doctrine. The issue is, as the court is often said, in fact, Justice Alito himself is said in prior cases, you can't use that canon to undo the statute completely. You can't change yes and to no or up and to down and changing results into intent. I think is accurate to say a rewrite of the statute instead of a genuine interpretation of it. So you can debate about whether this is a faithful application of the doctrine of avoidance. The other thing I wanna put on the table but it will require more of a discussion is there really two separate constitutional issues lurking in the background. And the majority opinion kind of goes back and forth between the two that are way I think is confusing and ultimately problematic. So one we've already talked about which is this equal protection doctrine that Michael and I both mentioned under this case, Shaw versus Reno which says you can't let the use of race predominate or be the primary factor in drawing district lines. That's clearly a motivation of the majority opinion here is where the court starts its analysis. But ultimately that's not where the court does the real work of its canon of constitutional avoidance. Instead what it says is that it has to find power in the part of Congress to enact the statute in the first place. And the court says that power has to come from the 15th amendment because the Voting Rights Act was designed to enforce the 15th amendment. And Congress under Section two of the 15th amendment does have the power to enforce the 15th amendment. But what just as Alito says is that the 15th amendment is limited to prohibiting intentional race discrimination in voting. And therefore the only constitutionally permissible enforcement of that amendment that Congress can enact is a statute that's designed to eliminate intentional discrimination on base of race with respect to voting. And it's that claim that Congress's power is limited to trying to root out or eradicate intentional discrimination is what really forces the majority to rewrite the statute in the way that I've described. And I think that that move to the 15th amendment is problematic for several reasons. But I won't list them all right now because I don't want to go on too long. If it's of interest we can talk about why that's true. But I just think-- - I do want to dig it on that for sure. - Sure. Well, let me just try to quickly put them on the table. There have been a longstanding view of the Supreme Court going back to the 1960s that Congress has more latitude in its enforcement power to ban forms of discrimination that are not necessarily unconstitutional. And the court has used the term prophylactic reasoning. In other words, Congress has empowered in the interest of eradicating intentional discrimination to sweep more broadly, including to eliminate discriminatory effects. The court has articulated that doctrine, for example, in an employment discrimination. So the Title VII, the employment discrimination law outlaws of intentional discrimination as well as so-called disparate impact discrimination. The court in a case called for its Patrick versus Bitzer from 1976 said that's perfectly appropriate within Congress's enforcement power, even though the Constitution itself is limited to intentional discrimination. And so for just as Alito to now say Congress only adds the power to outlaw intentional discrimination, it's really a radical rewriting or rethinking of what Congress's powers under the reconstruction amendments are. This is an implication that goes far beyond just election law into all aspects of civil right law. And it's done quite cavalierly in Alito's opinion, but it's right there, it's absolutely explicit. So that's one particular problem that I have with how he relies on the 15th Amendment. The other main concern I have is that, or one of the other two main concerns is that, because as Michael said, this Louisiana map is talking about congressional districts. It's not talking about state legislative districts or city councils, right? The Voting Rights Act encompasses all elections. And so Congress does need to rely on its 15th Amendment authority to enact the Voting Rights Act if it's going to interfere with state and local elections. But Congress independently has legislative authority under Article I, Section IV, to enact time, place, and manner rules for congressional elections. So Congress could have made the results test of the Section II of the Voting Rights Act applicable to congressional elections without relying on the 15th Amendment as its source of authority. Could have relied on Article I, Section IV. And the Supreme Court is supposed to sustain congressional power if there's any basis for congressional power. If Congress doesn't have to be correct about which power it relies upon, under Marbury versus Madison, the Court's supposed to, you know, say if Congress has the power to enact this law under the Constitution, it gets to enact the law. So the 15th Amendment really didn't need to come into play at all. And the third key concern that I have is that it's important to distinguish between the liability under Section II and the remedy if there is liability. The concern of Shaw versus Reno and the Equal Protection Dock and the Michael and I talked about is a concern about the remedy that happens if you find minority vote delusion because the remedy was this race-conscious redrawing of the math. But there are ways to remedy minority vote delusion without that particular remedy. That's the easiest remedy. But there are other forms of remedy like proportional representation schemes or cumulative voting schemes that can avoid vote delusion without race-conscious line drawing. And if the court had really relied on just the Shaw versus Reno problem, it could have limited the remedy. But instead by running to the 15th Amendment and rewriting the statute, it completely eviscerates the liability standard under Section II so that no remedies as a practical matter can be used. So I think there's an extreme overreach on part of what the court did in light of the constitutional concern that most motivated. - I wanna give Michael an opportunity to weigh in on Justice Alito's reliance on the 15th Amendment and also in inserting an intent requirement into the court's analysis. - Sure. I think one of the complicating factors of trying to move to the elections clause in order to try to save the previous version, for previous interpretation of Section II and so far as it applies to Congress, is that is, I guess, twofold. Number one, I think you would still have constitutional of wooden issues with regard to Section II, regardless of the statute under which it was passed. When you're thinking about it in terms of Congress's power under the enforcement clause, what you're asking is whether this law is congruent and proportional to preventing actual violations of constitutional rights as those rights have been interpreted by the court. And so as Ned said, because the Supreme Court in Calais interprets the 15th Amendment to prohibit only intentional racial discrimination, a law that sweeps much further than that and that prohibits a much wider range of state action that doesn't involve intentional racial discrimination, doesn't fall within the scope of Congress's enforcement power. But if you turn to the elections clause, I think the very same race conscious considerations that section II implicates would arise because you have to take race into account in ways that Calais says would at least raise serious questions under the 15th Amendment, if not outright, violate the 15th Amendment. So even if Congress were to try to either pass, re-enact the statute under the elections clause or to the extent that the court were to consider it under the elections clause, I think very similar constitutional avoidance questions would arise not with regard to the scope of the enforcement clause, but rather with regard to the scope of the core provisions, section I of the 15th Amendment and potentially even the equal protection clause of the 14th Amendment. So I, and especially given the tenor of the Calais opinion, I'm not, I think it would be unlikely that the court would have come out differently had it been squarely presented with a rigorous elections clause type argument to say nothing, of course, from the severability questions that arise and saying, you know, that the section two of the VRA would either be unconstitutional or race-series constitutional questions as applied to abroad swath of issues, but not with regard to one core subset, where there are bigger picture questions that the court's current severability analysis leaves somewhat unanswered in terms of how much of a law can be unconstitutional while you and still allow you to save the rest of that statute. So I think that the court's interpretation of section one of the 15th Amendment is doing just as much work in the opinion as its importation of this congruence and proportionality standard to section two of the 15th Amendment, the enforcement laws. And the other thing I'll say is, I mean, this is a question that really goes back to 1996, right? During the Civil Rights era, the Supreme Court had construed both enforcement laws, it's the 14th Amendment enforcement laws and the 15th Amendment enforcement laws, as giving Congress broad sweeping discretion to figure out what the best way to protect constitutional rights are, what the best way to prevent racial discrimination is, what the best way to protect voting rights are, in 1996, in City of Bernie V. Flores, the Supreme Court rejected that interpretation of the 14th Amendment's enforcement laws, section five of the 14th Amendment. It replaced that very, very deferential standard, which the court itself had analogized right to the McCulloch V. Maryland necessary and proper standard and instead adopted this strict congruence and proportionality test to say we want to make sure that in the course of purportedly enforcing constitutional rights, Congress isn't actually changing the scope or the definition of those rights and thereby intruding on our job as the court to say, to say what the law is, to say what the equal protection laws means. And so since that ruling then, this question has hovered over the Reconstruction Amendments, the 15th Amendment's enforcement laws is written very, very similarly to the 14th Amendment's, right? It was adopted roughly contemporaneously, it performs the same function. So this question remained in terms of whether the court would narrow its interpretation of the 15th Amendment's enforcement laws and the same way it did the 14th Amendment and Kelley puts that to rest. Kelley, not even treating it as a big deal, Kelley just up to go goes on to apply, that can grow in some proportionality standard under the 15th Amendment. I want to ask Ned, if you agree with Justice Kagan and her dissent, who argues that the court in Kelley has made section to all but a dead letter? I do agree with that. And just to pick up on the point that Mike Goumena, I think Michael accurately analyzes what happened under Congress's enforcement power, but I just think we need to pause and stop and realize just how momentous this is. The court had been careful in the Shelby County case not to say that this so-called congruence and proportionalality standard from the Bernie case applied in the context of race discrimination in the context of voting because as Michael said, going back to the 1960s, right at the time that the Voting Rights Act was adopted, the court had this generous latitude standard that Congress could pursue the elimination of race discrimination and voting in the ways that Congress thought best. And the court wasn't going to keep Congress on a short leash in terms of permissibility about how Congress was going to try to enforce this really most important statute in American history, the Voting Rights Act. And so for the court, in the way that Michael accurately describes, just so that it had been passing, says no big deal, we're going to apply this much stricter test that we developed. Remember the city of Bernie case was a case about Congress sort of trying to rewrite what the free exercise clause meant. That's very different from the context of racial discrimination in voting and just to sort of, without real thoughts, sort of apply the Bernie test that the court had been careful not to apply in Shelby County. It's truly momentous and in fact that is the engine that causes justice Cagan to be correct because that's what causes Alito to insist that the clause be interpreted so narrowly that it effectively renders it useless in terms of what Congress wanted it to do. So Michael, clearly if you look back from Shelby County to Calais, the Roberts Court is reshaping voting rights jurisprudence. Can you help explain for our listeners how they're doing that and how Calais fits within that broader trajectory? Sure. I mean, I think one of the big picture stories of the Roberts Court is that many of their rulings, not just with regard to voting rights, but even with regard to constitutional issues much more broadly, is that is a focus on one of the core disputes about the proper interpretation of the 14th amendment. Right? Going back to Brown versus Board of Education, there's two very different interpretations that have arisen. There's two very different stories you could tell about what the Constitution requires in terms of equal treatment and the prevention of racial discrimination. On the one hand, you can read provisions like the equal protection clause, like the 15th amendment from what is often called in literature from an anti-discrimination perspective, where the core evil that these provisions are aimed at is government's classification of people based on race, government taking race into account when making decisions, when taking actions. Right? This anti-discrimination interpretation is premised on the notion that it's inherently pernicious to consider race that race is virtually never a morally or illegally relevant characteristic to government action. And so these amendments should be interpreted in a way to remove racial considerations from public life and ensure that compelled the government to treat people of all races equally. This is sometimes referred to through justice, chief justice Roberts, colored blind interpretation of the Constitution. And there's certainly provisions in Brown versus Board that can be read to support that interpretation. And on the other hand, there's what's often referred to as an anti-subordination interpretation, where the point of these amendments isn't necessarily to prevent all consideration of race, but rather it's to prevent the government from establishing racial hierarchies, to prevent the government from perpetuating systems of white supremacy, certainly to the extent that you think about the context in which the reconstruction amendments were adopted or trying to undo the systemic effects that slavery had had, or throughout the southern stage trying to guarantee rights for formerly enslaved people. From an anti-subordination perspective, race, racial concerns are unconstitutional and racial concerns raise serious problems. If they're used to perpetuate racial hierarchy, used to perpetuate white supremacy, right used to oppress, right, discrete and insular minorities. But if they're used in, if they're applied in non-malicious ways, if they're applied in ways that are aimed at dismantling racial hierarchies, undoing racial inequalities, rectifying racial discrimination of the past, then the Constitution permits it. And I think that big picture, one of the main themes of the Robert's court, is shifting the court's analysis away from an anti-subordination interpretation of the 14th and 15th amendments toward an anti-discrimination interpretation, where we see this in the affirmative action cases. We see this here here in Calais. I think it's certainly one of the underpinnings of Shelby County. And I think we're going to continue to see it across the board, especially as the administration continues to take aim at many race, race, race conscious programs. I think that that's one of the main ideological and philosophical and constitutional underpinnings that links together what we're seeing across many of these otherwise disparate opinions. >> Ned, do you think that the Voting Rights Act can survive that pivot? >> Not in the form that Congress wanted it to. By the way, I should say that many people have criticized Shelby County. I was not one of them. I thought Shelby County was a perfectly reasonable decision, because Congress had not updated the coverage formula for the pre-clearance provision. And the pre-clearance provision was particularly on-nurs on states requiring states to get prior approval for changes in the laws. That's not what sovereign states usually have to do. It also applied only to some -- States and not other states. I think the court was correct in Shelby County to talk about a kind of equal protection principle applicable to sovereign states so that if Congress is going to treat some states you know much more honestly than others it has to have a good reason to do so and Congress doesn't have a good reason if it simply has a coverage formula that's on autopilot for decades and decades. So you know, I did not join the critics of Shelby County. That's why I think the Kale decision is much more problematic and much more momentous than Shelby County ever was and I think that some of the coverage that lumps the two together really misses the the tremendous earthquake that the Kale is you know it goes off the Richter scale much more than Shelby County does and has implications. I you know I think Michael is is accurate in terms of the distinction between anti-discrimination theory on the one hand and anti-supportation on the other and and I do think you know the court move in the affirmative action case the Harvard case is relevant here the court in fact cites it but what I think is important to understand to understand is that the liability for minority vote dilution the Congress adopted in section two is not an affirmative action policy. It's designed to eliminate genuine electoral disadvantage on the part of you know American citizens who are entitled to equal electoral opportunity and and so to to basically cripple a statute that's doing that's trying to remedy that is different than trying to eliminate affirmative action. It's much more aggressive in stopping it really stops the capacity to achieve anti-discrimination in my judgment and and to go back to one point there may be a point of a difference between Michael's analysis and mine. I think that the equal protection concern about avoiding race-based district can be credited but if it's not inevitable in my view that if Congress tried to pass the voting rights act under its enforcement I assume the under its article one section four power or if the court had allowed this statute to be treated as this article one section four statute for purposes of congressional elections that that inevitably implicated the Shaw versus Reno equal protection line of cases it only would implicate it if the remedy for undoing vote dilution is a race-concentred remedy but as I said earlier there are other tools in the toolkit a you know a proportional representation system can avoid vote dilution without race-conscious districting. Again there may be a less familiar remedy a more complicated remedy but nonetheless it is an available option at least if the liability standard still exists so eliminating the liability standard I think was uncalled for even under the doctrine of constitutional avoidance. I want to go back into the opinion a little bit and look at some of the doctrinal shifts in the case so Michael a part of justice solito's decision is his updates to the Thornburg V. Jingles framework can you walk us through what the framework was previously and what justice solito's updates entail. Sure so prior to KLA in order to be able to bring a successful section two claim voters had to satisfy a three-pronged test under under Thornburg and then move on to show what was called the senate factors because they were drawn from a senate committee report that accompanied the amendments to the VRA identified as relevant so to somewhat oversimplify something that I'm sure Denny can both spend entire classes on in prior to KLA in order to succeed plaintiffs had to show that racially polarized voting existed in an area that African American or whatever racial minority group tended to to support certain candidates the white majority group tended to support different candidates that it was possible to draw a reasonably compact district consistent with traditional redistricting principles in which that minority group would constitute a majority and so I'll point out that one very easy way the court could have completely gotten out of the KLA situation would have just been to say that the district that the legislature drew was not reasonably compact was not consistent with traditional redistricting principles and so therefore doesn't count as a valid remedy under section two that the type of district you adopt as a remedy needs to be the sort that would have given rise to liability in the in the first place and so to go back to the standard then once the the court ascertains that you've had racially polarized voting this is tended to prevent a members of the minority group from electing candidates of their choice it is possible to consistent with traditional redistricting principles to draw another's of majority minority district the court then takes a totality of the circumstances approach to try to to try to confirm whether or not this inability of members of the minority group to elect their preferred candidates was due to race and so they would they would they would look to things like history of overt racial exclusions from from the from the right to vote in some cases going going going back decades or even by by this point a century or more they would look at the the types of appeals that were made in campaigns to see if there were either overt or implicit a racially charged campaigning or or or issues being being brought up the extent to which policies that are preferred by members of the minority group were successfully implemented by the by by the government and so taking into account all of these factors the court would then conclude based under the totality of the circumstances whether the minority group had been denied the the right to elect the candidates of their choice and so one of the big picture shifts that we see under under calais is that rather than just showing that it's possible to create a second majority minority district based on traditional redistricting criteria things like a compactness a continuity covered communities of interest now plaintiffs need to show that it is possible to draw some unspecified substantial number of of alternative maps that would have a second majority minority district but using the exact same criteria that the state used to draw the map at issue so rather than showing that by applying traditional redistricting criteria it is possible to draw a second majority minority map now taking advantage in part of these computer systems that the majority referred to at several points in the opinion now plaintiffs need to show that using the same exact factors that the state deemed important and one of the most important factors that the court focused on is partisan effects right if it to the extent that a state is drawing a particular map because it wants to benefit particular incumbents or because it wants to benefit particular members of a particular political party plaintiffs now need to show that it is possible to use those same factors it is possible to achieve the same effects that the state was looking for to include partisan effects so drawing additional Republican districts in this case for example it's possible to use the state same criteria to achieve the same goals and nevertheless create a substantial number of maps that have additional majority minority districts at that point then justice elito suggests if there's no good reason why the state rejected this substantial number of majority minority maps why the state were if this if it was possible for the state to achieve all of its intended goals and also have majority minority an additional majority minority district under many of the various possible maps that would have achieved its goals at that point then a strong inference of racial discrimination occurs and therefore section two interpreted in light of the 15th amendment as Kale interprets it allows the court to to step in and and one of the things that the court is a little bit is is is is a little bit unclear about is as Ned said before the court says we're not requiring that plaintiffs actually show that intentional racial discrimination occurred but we are requiring plaintiffs to provide evidence that can support a strong influence that intentional racial discrimination occurred. So I don't know if one way to try to interpret that is to say that the court is requiring that plaintiffs prove intentional racial discrimination, but perhaps not by a preponderance of the evidence standard that perhaps what's going on here is that if just a strong enough inference is enough, maybe it's not necessarily rising to 50.1 percent certainty or how you would choose to describe preponderance, but to say that you don't have to prove actual intentional discrimination, but you do need to raise a strong inference of intentional racial discrimination. I think that that's something that we're going to see some potentially conflicting lower court opinions about over the years to come. I definitely walked away with a question of what a strong inference of racial discrimination meant, and I'm sure everyone else did, as well. Now, did you walk us through the application of the updated Thornberg framework in this case? I wish. I'll try. I'll try. I guess I think the maybe the easiest way to understand it is to think about it in a concrete example that builds off of what Michael just said. So again, there's all this talk about how now given the Rucho decision, common causes versus Rucho, that partisan ship is a legitimate redistricting criteria in the way that used to be distasteful, and even if it couldn't be enforced. But now there's a complete green light to draw maps with maximum partisan effect, and that's perfectly valid. That's a justice valid is trying to draw compact maps or protect cities and county lines and so forth. So imagine a state that has 10 congressional districts, and a minority population of 20%, but that the map makers in the state, for purely partisan reasons, want to create a 10-0 map for their partisan advantage, and they can do that given the computers that Michael is talking about. And it also turns out that even though it may not have been their intent to have any racial impact because they were purely motivated by partisanship, the consequence of their 10-0 map and favor of their party leaves zero districts in which the 20% racial minority in the state has districts of their own. In other words, there's no majority minority districts that are created. So that's what we would use to call a primafacial case of minority vote dilution. The consequence of Alito's analysis, as I understand it, is to say that unless plaintiffs can prove that the map makers could have equally achieved their 10-0 partisan goal by including at least one minority majority district, they're allowed to do the vote dilution and go 10-0 for partisan effect. The consequence, because if the state comes back and says, you know, the map makers, we couldn't max out our partisan advantage without resulting in zero majority minority districts. Sorry, but that's our situation. Alito says that's just fine. The reason why I think that's a misconstruction of the statute is Congress didn't say it was okay to have the result of a minority vote dilution if there were reasons to have it. Congress said in 1982 that the problem of minority vote dilution is so important that sometimes valid redistricting criteria have to give way to the need to undo political inequality based on race. The need to create political equality for all American citizens is so important that it doesn't matter that you want to protect incumbents or that you want to have the most compact districts. Yes, those are valid criteria, but we've got a priority as a legislative matter of making sure we eradicate the unequal political power based on race. And that's what Alito's opinion completely undoes. There is no protection for equality if map makers have purely partisan goals and they need to do what they do to achieve their partisan goals. There's no longer any liability for causing lack of equal political power. So I think that's the practical effect of the way Alito rewrites the Thornburg versus Jangle's analysis. Michael, do you agree with Ned's assessment? Yeah, I mean, I wonder one of the things that Justice Alito's reasoning does is adopts a very different interpretation of what the what the majority deems racial equality, right? And there there there's a few pages in the opinion that that focused specifically on that issue, right? So the court says, well, in order to figure out if somebody is being discriminated against based on their race, we need to hold everything else equal and see if there are if there is evidence that racial factors have influenced a decision, right? So that's exactly why the court says, if a state's engaging in partisan gerrymandering, then plaintiffs need to show a map that achieves that same partisan gerrymandering goal, but has additional majority minority districts. And this this goes back to the the court's understanding of what exactly the 14th Amendment and 15th Amendment are seeking to do. And what I think Justice Alito's opinion does is put a lot more weight on formal equal treatment of voters rather than any sort of outcome based approach that that that as Ned would say was saying would guarantee members of racial minority groups some some level of representation in a in a particularly legislative body. So this is the shift or the emphasis on opportunity versus outcome? Yeah, but it's not it's not opportunity. If you use my example and say there's 10 congressional districts blacks are 20% of the population of this state for purely partisan reasons. The map makers have created a 10-0 map in favor of their party without any evidence of racial intent, but the consequence is that you know there are no majority black districts in the state. Under the old way of thinking under Congress's way of thinking that was a lack of opportunity of the black residents of that state to have equal or fair access to political power. And to say that that's not a lack of equality, I don't think conforms to what most Americans would think is sort of common sense understanding of what it means to have political equality or not. It's not about outcomes, it's about the opportunity of minority citizens to have a fair chance of electing representatives of their choice. And in my hypothetical I think there would be no fair chance of that. I want to shift a little bit and focus on justice Thomases concurring opinion with which Justice Gorsuch joins. Michael, can you tell us a little bit about what justice Thomas argues in that opinion? Sure, so one of the main focuses of the opinion is whether section two of the VRA should apply to redistricting at all, right? The language of section two prohibits states from adopting any "standard practice" or procedure that denies a person's right to vote on account of color. And the majority opinion expressly said we're taking it as a given that this phrase includes drawing legislative district maps. There have been decades of Supreme Court rulings that have applied section two in the context of redistricting cases. The dissent, drawing on earlier dissents that Justice Thomas had issued in several other cases, also going back for decades suggests that this phrase should be understood as applying only to the rules that govern either a person's ability to get a ballot or to have their ballot counted. That's a drawing of legislative districts or the adoption of a particular legislative map is not a standard, it's not a practice, it's not a procedure. And so therefore just as a matter of textualism doesn't fall within the scope of the Voting Rights Act, particularly in light of the thrust of of that dissent, I think it is fairly interesting that the majority didn't delve more into whether from a matter of dictionary definitions or public understanding or their historical precedence. I think it's pretty interesting the majority didn't spend more time defending that. that point that they simply said, at this point in our history of the VRA, that's a given, but nothing else, we hear very little else that we've been doing so far in interpreting the VRA is a given that we're going to continue in hearing too as well. - Ned, I wanna spend a little bit of time on Justice Kagan's descent, not a respectfully descent, just a descent from her, and walk us through a little bit of her concerns that she raises in the descent. - Yeah, I think we've, I mean, I, without talking specifically about her opinion, I think we've covered some of the same ground and so far as I think some of my analysis tracks hers. What else would be useful to say? I mean, she starts her opinion with the hypothetical of her own to try to sharpen just what the consequences of the majority of opinion are. You know, I think, again, the thing that I would want to distinguish my analysis from hers is that she does place a lot of emphasis on linking the Kale, this new case, Kale, with two other voting rights out cases, we've talked about one of them being Shelby County, another one is one called Bernovich, which also involves section two, but not in the context of redistricting, it involved in the context of what we call the nuts and bolts of election administration, casting votes in precincts or absentee ballots. And Justice Kagan was a descendor there, and so she paints this broader picture as, there's this trilogy of cases that the court has done, offense to the Voting Rights Act in her perspective, and this is just yet another of slamming the door shut that when it was slam twice before, different doors and the same voting rights house were shut, and now the third door is slam. That I think is the overarching tenor of her opinion. But again, from my perspective, it under-astamates the significance of this new opinion by treating it as part of a trilogy. I think this stands alone for its significance. So I hope that's something useful to say in this context. - Michael, in a separate move, the court took the unusual step of making its ruling effective immediately, expediting certifications, the Lower Courts could act right away. What did the court do there procedurally, and why might the court have felt it was important to give this decision a immediate effect? - Sure, so the court expedited issuing what's called the mandate. The mandate is the point in time in which a court ruling actually takes legal effect. So when Kalei itself was handed down a few days ago, it lower courts couldn't immediately jump to start implementing it. There is a time period in which among other things, the losing party has the opportunity to petition for re-hearing to ask the court to reconsider its ruling or reconsider some aspect of its ruling. Those petitions are extraordinarily rare that those petitions are successful. But nevertheless, like other appellate courts, there's this waiting period before the mandate issues and then Lower Courts are given the green light to act in accordance with the court's judgment. So here, the court granted a motion to immediately issue the mandate to allow Lower Courts to begin implementing its ruling in order to allow, or at least one of the consequences of this is going to be to allow Louisiana to be able to adopt a new set of congressional districts or at least attempt to adopt a new set of congressional districts. There's some question under state law as to whether whether whether or not this is going to be permissible at this late point, especially since I believe voting in the primary has either already begun or is imminently beginning. And so without it had the mandate not issued, there are very strong arguments that the procedural posture of the federal cases between Robinson and Kelley itself would have impeded the state's ability to adopt new districts in time for the 2026 election. - Ned, there's a sharply worded exchange here between Justice Jackson and Alito. What is Justice Jackson's concern with the court expediting certification? - Well, I think Justice Jackson feels that the court is acting in a partisan way. Of course, then Justice Alito accuses her of the same thing. I do think it's noteworthy that Justice Kagan and Justice Sotomayor did not join Justice Jackson's dissent for this procedural ruling. And probably somewhat noteworthy that not all the members of the majority join Justice Alito's response. Justice Gorsuch and Thomas did, but not the others. I think the exchange between Jackson and Alito is evidence of just how raw the nerves are at the court and how hot the emotions are at the moment. It probably is not a pleasant building to be in right now. And so I think the fact that the other, Justice S didn't sign on to that exchange was somewhat of an attempt to lower the temperature on their parts. I also think, again, as someone who's obviously been very critical of the majority opinion in Kale, I think my own view as Justice Jackson was an overreaction. I mean, once the ruling is the ruling, it is appropriate to issue the mandate immediately given the consequences of it. And I think it's important for the court institutionally to be able to move on. You have your disagreements. You write your opinions, majority concurrences descend. And then the next issue comes along. You have to treat it kind of on its own terms. And I think Justice Jackson's attack was kind of left over criticism. It was no worthy that Justice Jackson didn't write an additional dissent in the main Kale. In case she let Justice Kagan speak for herself there. I think many court watchers had thought that Justice Jackson would either write the dissent for the three dissenters or want to add her own voice. And for whatever reason she didn't. And so now that this was a chance for her to get her digs in in the second round of this. So I think it more speaks to, again, issues of emotions than it does to sort of issues of substance of legal analysis. As we come to a close, I want to give each of you an opportunity to reflect on what voting rights cases and the Voting Rights Act will look like in the post-Kale world. Well, it's a really important question. I've tried to give some thought to the long-term historical consequences of Kale. None of us have a crystal ball. But I do worry about what American life and history looks like. If what we're starting to see is the complete elimination of black representation in Congress, because Kale allows for that to be undone. And again, I'm focused on opportunity, not outcomes. But nonetheless, if black American citizens feel that a consequence of this court decision is that the dream that Martha Luther King had of where we had genuine equality in the United States no longer exists, because that equality has been taken away, has been ripped away. What does that do for race relations in this country going forward? There was a different vision in the civil rights era between the Martin Luther King vision of assimilation and integration versus the medical ex-vision of separatism and violence. And we were fortunate that the Martin Luther King vision prevailed because the Voting Rights Act prevailed, and the civil rights movement prevailed. And this is going to be perceived as undoing the second reconstruction. And this is going to be perceived as undoing the Voting Rights Act. And people are watching it happen immediately before their eyes, as politicians in states say, we want to undo these districts. I don't think that's going to be good for America as a cohesive, multiracial society. I hope I'm wrong about that, but I fear that's the consequence. Michael, what are your thoughts? I think that one of the big consequences of Calais that it'll lead plaintiffs to shift to other potential grounds for challenges. So plaintiffs will likely seek remedies under state concentration. many states have state voting rights act. And I think one of the big questions that I'll arise now is the extent to which those acts can survive scrutiny under Calais and it's clarification of the courts interpretation of the 15th Amendment. There are other provisions of both the Civil Rights Act as well as the Voting Rights Act, which historically have not received that much attention from plaintiffs, simply because section two had historically done most of the heavy lifting and plaintiffs generally could rely on section two claims. And so I think that particularly uniformity requirements under the Civil Rights Act as well as the National Voting Registration Act are going to get more attention. The materiality provision of the Civil Rights Act has been mitigated much more in recent years than it had been over decades past. So I think that at least some of the consequences that Ned is talking about could potentially be ameliorated depending on how other provisions at both the state and the federal levels are interpreted and enforced by the courts. >> Michael Ned, thank you so much for joining me for a really thoughtful conversation taking us through the opinions in Calais and the consequences. I think we can all agree this is both a complicated and consequential area of the law and one we are definitely not done talking about. So thank you again for joining us and being with the Weed and People audience. >> Thanks for having us. Thank you. >> This episode was produced and mixed by Bill Pollock with production support from Charles Thom. Research was provided by Anna Salvatore, Tray Sullivan and Tristan Worship. Please recommend We the People to Friends, Colleagues, or anyone anywhere who is eager for a weekly dose of constitutional education and debate. I am excited to share that the National Constitution Center will publish a book on May 12th, The Promise of America, Reflections on our Enduring Ideals. For more information, visit Constitutioncenter.org/promiseofamerica. And as always, remember that the National Constitution Center is a private nonpartisan nonprofit and we rely on your generosity, passion, and engagement for all of our programming, including this podcast. Please consider donating today at Constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Julie Silverbrook.