Episode 16 | Dem Maxxing and the VRA

Our hosts, law professor Ilan Wurman and Kathryn Johnson, cover everything Voting Rights Act in light of the Supreme Court's recent decision in Louisiana v. Callais. Why was the Voting Rights Act enacted, and how does it relate to the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment? What did the VRA accomplish? What did the Supreme Court do with Section 5 of the VRA in Shelby County, and was that case rightly decided? Is redistricting even covered by the language of the VRA? If it is covered, would that even be constitutional if the Fourteenth Amendment covers only civil rights, rather than political rights? How has the VRA been interpreted since it was held to cover redistricting? Ilan and Kathryn talk about the "Democrat Movement Lawyer" theory of the VRA, which required what Kathryn calls "Dem Maxxing" -- maximizing the political power of Democrats. The Supreme Court in Callais, Ilan argues, merely scuttled this crazy interpretation of the VRA, restoring it to its original and intended purposes.

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Transcript

SPEAKER_01 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck? The VRA?

SPEAKER_00 0:06

Well, we're doing a deep dive into the Voting Rights Act. A big decision came down last week. The Supreme Court narrowed its interpretation of the act in the case of Louisiana versus Calais. The Democrats are apoplectic. Is that how we know the Supreme Court got it right? We'll explain. First, the history of the Voting Rights Act. Second, we'll talk about redistricting and whether that's even covered by the Act. Third, we'll walk you through the Supreme Court's ruling. And fourth, we'll talk about the political implications. You won't want to miss this episode.

SPEAKER_01 0:33

Let's dive in.

SPEAKER_00 0:52

And I'm Catherine Johnson with Center of the American Experiment.

SPEAKER_01 0:55

As always, hit that like and subscribe button. Catherine, where should we start? There's a lot to cover.

SPEAKER_00 1:00

Well, let's start with the Voting Rights Act bombshell. We're actually gonna focus on the Voting Rights Act this entire episode because there is just so much to talk about. Uh the Supreme Court has narrowed the interpretation of the Act in Louisiana versus Calais. So let me set up a little bit of the background here, and then after that, we will get into the merits of the decision. So for background, let's start with the 15th Amendment, which was adopted in 1870 after the Civil War as part of Reconstruction. It provides that 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. And then the second section says the Congress shall have the power to enforce this article by appropriate legislation. But of course, as we all remember from uh APUSH, in the Jim Crow era, the Southern states came up with all kinds of schemes to try and prevent African Americans from voting. So some were straight up discrimination, like prohibiting black voters from participating in primaries. Those were obviously held unconstitutional under the 15th Amendment. But there were other things that they did, like literacy tests, poll taxes, two other big ones, good moral character requirements, and vouching required by someone who was already registered to vote, were all kind of the schemes they used to keep black people from voting. So not only were those creative mechanisms for effectively barring black Americans from voting, but litigation was expensive and honestly impractical because you had to do it on a one by one basis, right? On an individual basis.

SPEAKER_01 2:36

And of course it's slow, right? Litigation can take years and years and years, and by the time you sue somebody, they're on to the next crazy thing, right? Aaron Powell Yeah.

SPEAKER_00 2:44

So Congress actually acted, which is cool because I feel like, you know, today they don't do that a lot.

SPEAKER_01 2:47

Congress used to do things. That's right.

SPEAKER_00 2:50

And enacted the Voting Rights Act of 1965, which effectively tracked with the 15th Amendment. It described itself as an act to enforce the Fifteenth Amendment and provided in Section 2 that no voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color. Now, there's also section five of the Voting Rights Act. This required p pre-clearance from a court or from the Justice Department whenever certain states or jurisdictions changed their voting procedures or practices. And they had like kind of a formula that they used to figure out which states this applied to that had to get the pre-clearance, and they were like mostly southern states, right? Um okay. Elon, setup. How did I do? Good history lesson for everyone? Was it correct?

SPEAKER_01 3:44

That was very good, though. I doubt you learned all of that in APUSH. I feel like you learned a lot more in Apush than I did.

SPEAKER_00 3:48

Uh well one thing I do remember from Apush is one of the tests that they used to try and keep black people from voting was like how many bubbles are on a bar of soap. Did everyone learn this?

SPEAKER_01 3:58

Is that a real thing? They really did that? That's what a teacher taught me. Oh wow.

SPEAKER_00 4:01

So it wasn't even just that they were literacy tests, it's that the questions were so insane they were meant to be unanswerable. Trevor Burrus, Jr.

SPEAKER_01 4:06

Oh, that's that's fascinating. But obviously, like clearly, despite the 15th Amendment, right, all these creative mechanisms to prevent African Americans from voting for basically a hundred years after the Civil War. And it wasn't that those procedures were legal, as you were saying. They were illegal, they were unconstitutional. But the problem was, you, as you said, there had to be these individual plaintiffs who would bring these suits. Litigation was very slow. And so um what ended up happening is Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment. How does it enforce and and this is very important because Catherine, as you read, um section two of the 15th Amendment says that Congress, through appropriate legislation, can enforce the prohibition on the denial of the right to vote, right? So Congress can enforce the Fifteenth Amendment, just like it can enforce the Fourteenth Amendment, by the way, but it can't expand it, right? So it it can't redefine the right. Uh and this will become very important for the decision in the Kelly case. And so, in what sense did the Voting Rights Act enforce the Fifteenth Amendment? Well, what it did was it said instead of individuals who have been discriminated against in the right to vote, which again is slow case-by-case basis, we are now empowering the federal government itself to go after these states and local jurisdictions that are employing these devices. So instead of an individual person who's denied the right to vote, you have the state, uh the federal government itself, the United States attorney, the uh assistant United States attorney could sue the states. And so instead of a few one-off litigations by private plaintiffs, you can have an army of federal prosecutors going after the uh the South. Now, Section 5 is also very important because even if you have like an army of prosecutors going after these Southern jurisdictions, they were very clever. And they could change their procedures uh just by a little bit, even, and then all of a sudden, you know, you so you lose this one case against the federal government, but now they moved on to this other procedure. And that's what the preclearance requirement solved. That's what section five solved. If they had changed anything from the baseline of what they had uh uh their voting practices, their election practices as of 1964, most of which would be found to be unlawful, right, under section two, because it was discriminating on the basis of race. And then if they tried to change it in some clever way to avoid the litigation or f avoid the federal prosecution, well, you had to pre-clear that with the Department of Justice or a federal court. And so it worked, right?

SPEAKER_00 6:35

It's kind of like putting them on probation, which I like. Like they they had to go through the authorities to be like, can we please do this? It's like they didn't have the full authority to change something.

SPEAKER_01 6:43

And as we'll talk shortly about the Shelby County case, they were on probation for 50 years until the Supreme Court got rid of Section 5. And I know we're gonna turn to that uh in a moment, but before we do, like it's important to emphasize how the voting uh rights act really worked. Um so the the we have the voting registration number, and and that's really what it was about initially, right? We'll talk about whether this even apply to redistricting and legislative districting decision. But the first part of the statute of the voting rights act that uh that Catherine read, right, it's clearly intended to go after uh prerequisites to voting, qualifications to voting, things like the literacy tests, things like the vouching requirements. And the voting rights act really worked. So prior to it, in these southern jurisdictions, uh, black voting registration hovered at something like six to fifty percent prior to 1965, depending on the state. And immediately after passage, it rose from 50 to 70 percent. Mississippi was the greatest, perhaps, perhaps the worst offender in this regard. So black registration was six and a half or so percent in 1964. The voting rights act was enacted in 1965. By 1969, voter registration was at 66.5%. So like it really did work. It w um and and it was quite incredible. So the Voting Rights Act, as initially you know conceived and enforced in those initial years, really was appropriate and proper enforcement legislation uh that advanced um and vindicated, if you will, the 15th Amendment right to be free of discrimination in voting.

SPEAKER_00 8:07

Wow. Okay.

SPEAKER_01 8:07

So the Voting Rights Act is a good thing. We support the Voting Rights Act as it was initially conceived.

SPEAKER_00 8:13

Yeah, and it had a clear purpose and it it achieved it, it seems to me. Um okay, so now there's a lot more history that we have to go over, including the expansion of section two, which is what was at issue in this recent decision. Um but before we do that, I think we should talk about section five. Um, this is the preclearance requirement. The Supreme Court effectively gutted that requirement in 2013, as people may remember, in a case called Shelby County versus Holder, where the Libs all kind of lost their mind. Um they said the the sky was falling because of this, and since then, well, we'll get into it, but I don't think the sky has totally fallen. Um from what I understand, the Supreme Court in the Shelby County decision basically said that Section 5 of the Voting Rights Act, by singling out certain counties and states based on criteria going back to 1964, was no longer, 50 years later, appropriate enforcement legislation. Is that right? And what what does that mean exactly?

SPEAKER_01 9:05

Yes, so and you're right that the progressives thought that the sky was falling. You know, this is uh the Calais decision is just the coup de grâce, uh, since we speak French a lot. Uh, you know Louisiana Vicalay, I is I suppose French. We're dealing with Louisiana, okay? So a lot of French influence uh in Louisiana, but a lot of people see the current Louisiana Vicalay decision as just the capstone of the Roberts Court's efforts, if you will, um the final attack on the Voting Rights Act, uh, which started um back in Shelby County some 10 years ago, where they basically got rid of the pre-clearance requirement. Now it's tricky, they actually didn't get rid of the preclearance requirement as such of Section 5. They got rid of the formula in Section 4, and the formula is what determined which states and jurisdictions were subject to the preclearance requirement. And so what it basically happened is Congress hadn't updated the formula since 1965. I mean maybe it updated it in 1982, I can't remember exactly, but it'd been almost 50 years. And um the formula was basically based on voting practices and discrimination practices as of 1964. Well, the Shelby County Vieholder decision was decided in 2013, almost 50 years later. Now, I need to be careful what I say here, because I don't want to lose the trust of my audience. I'm not sure the Supreme Court actually got it right in Shelby County Vieholder.

SPEAKER_00 10:24

Wait, by removing the formula?

SPEAKER_01 10:26

Yeah. Wait, wait, wait.

SPEAKER_00 10:28

So do you think they still should have had to get pre-clearance, those states?

SPEAKER_01 10:31

I okay, well, as a legal matter or as a political matter? As a political, I think this is important. We have to distinguish between law and politics sometimes, right? Okay, okay. Uh so maybe I'm not based stuff on this point for you, Catherine. Uh but um as a political matter, I mean, it's crazy that Congress didn't update the formula. And you could think about that, because like in 2007, when they had last updated it before 2013, like nobody wanted to touch it. Like, who wants to be the one to create a formula that says you guys are being discriminatory, you guys are being racist? We're gonna put a pre-clearance formula requirement on you, of but not you. I mean, who wants to get involved in that? Congress doesn't want to do it, so they kind of just left it alone. And I will say that in one respect, Shelby County Beholder makes some degree of sense in the sense that remember, and we'll come back to this multiple times, Congress can only pass enforcement legislation. And the Supreme Court, in a series of cases, and this is widely accepted to be correct, has said that for Congress to enforce the amendments, it must show that the states or jurisdictions are violating the amendment, right? You can't just go and impose new structures or interfere with the states if the states aren't actually violating um the Constitution in some way. So if today Congress said, you know, Oregon, California, we just want to impose a preclearance requirement for all your election processes. It's like, well, where does Congress get the power to do that? It doesn't get the power to do that unless it's enforcing the 14th or 15th Amendments. Okay. And so you need some sort of pattern or history of violations. But that's not but that's not really what the Supreme Court said in Shelby County Beeholder. What the court said in Shelby County Beholder is that the formula was unconstitutional because it discriminated against the southern states based on an outdated formula, right? And so it violated the so-called equal sovereignty of the states.

SPEAKER_00 12:18

So like you can't pick on individual states, sort of.

SPEAKER_01 12:20

Yeah, that was the idea. But the problem was the equal sovereignty thing is totally made up. I mean, it comes from somewhere, but totally irrelevant to the voting rights thing. I don't think there's an equal principle, equal sovereignty principle in the voting um the in the 15th Amendment or the 14th Amendment. In other words, the Supreme Court seemed to say that when Congress is enforcing the 14th or 15th Amendment, it has to treat the states equally. But why, actually? Why? Like, shouldn't Congress be able to solve or tackle one problem at a time? So if Congress wanted to pass, you know, you know what? Voting registration is so low in Mississippi, remember? And so we're gonna focus on Mississippi. So we're gonna pass the Mississippi Enforcement Act. And we're only gonna impose preclearance requirements on Mississippi. And we're only gonna impose a Section 2 thing on Mississippi or whatever. Aaron Ross Powell, Jr.

SPEAKER_00 13:09

Yeah, it seems like they could do that because they're just enforcing what the amendment already says, right? Does it matter that it's just in Mississippi? I mean, where do they think where do they think the equal clause comes from?

SPEAKER_01 13:19

Aaron Powell So that's exactly right. That why can't as long as you're actually enforcing the amendment because Mississippi has been violating the amendment, why can't you just do the Mississippi Enforcement Act? Why does Congress have to solve all these problems all at once? And so you're exactly right to in to intuit that Congress should be able to do that, which makes, I think, you against Shelby County Holder. Now, where did equal I know I know I make you I make you Catherine uncomfortable I don't know but so where did the equal principle, equal sovereignty principle come from? Well, it actually came from a bunch of 19th century cases that says that said when a new state enters the union, it enters the union on an equal footing with the other the other states, which of course is true. In other words, the 13 original states, the 13 original colonies, subsequently states, don't get some sort of special privileges because they were the first 13 states. Minnesota, Arizona, California, pick your state that came in into the union later, they have the exact same constitutional status as the other states when they enter the union. That's obviously true. But it doesn't solve the question. It doesn't answer the question of, hey, if Congress wants to enforce the 15th or 14th Amendment, can it focus on, say, Mississippi, which was at the time particularly egregious, or does it have to treat everybody equally? So I don't know. This surprises my constitutional law students all the time, because you know everyone thinks I'm this evil art conservative. And then I'm like, yeah, no, I think Shelby County behold sh was actually wrong. Trevor Burrus, Jr.

SPEAKER_00 14:39

Well, for me, I feel like I agree with the outcome. It seems like the pre-clearance thing has served its purpose and they shouldn't be held to that standard anymore. In this was in 2013. That makes sense to me, but I agree that the way they did it, maybe, is not something that I would agree with. It seems they could have found an other reasoning for why they could get rid of that pre-clearance. Trevor Burrus, Jr.

SPEAKER_01 14:58

Well, you could see why the court was upset, right? Because Congress was being lazy. Right? Congress didn't want to update the formula because it didn't want to upset anybody. And so the result was, well, you're just picking on a bunch of states based on, you know, what their ancestors did. I mean, it's not that long ago, 50 years ago. You know, what you what previous generations in Mississippi and Alabama and Georgia or whatever, and like a county or a couple counties in Arizona. I think there's a county in New York, by the way. Uh I think New York loved literacy tests back in the day, which is actually kind of uh yeah, interesting. It was because they were trying to get rid of the Puerto Rico Puerto Rican votes. Really? Actually, yeah, which is the kind of interesting history in New York. So but it felt like they were just picking on a bunch of southern states that there was no longer this what the court called a congruent and proportional connection to a history of violations. In other words, the formula had to be congruent and proportional to the evidence of discrimination, to the evidence of violations. And so in that sense, like I get it, I get it, and I'm not sure Shelby County was wrong in that respect. Um, but of course, what the response would be from the progressives is well, we're not and by the way, like you said the sky didn't fall, right? And I think we pulled the registration numbers.

SPEAKER_00 16:09

Um we did sense that Shelby County decision because I mean people really were hysterical. I remember this, and they said that this is going to be terrible for um black voters and disenfranchised people from voting. So here's what I think we got these from Grok. So, you know, we can blame Grok if any of them are a little off. But in Georgia, Louisiana, Mississippi, and Alabama, um, they all saw that their black registration rates have gone up since circa 2010 to 2012 versus um today. So I think that's pretty interesting. I mean again, this happened all over again. So we'll have to look at the results from this recent decision on the Voting Rights Act because again, I saw like Senator Raphael Warnock of Georgia, he's kind of notoriously crazy, but he called this decision 21st century Jim Crow tactics. Um the strict scrutiny ladies were losing their minds.

SPEAKER_01 17:01

Shh shh we won't talk about that podcast, although that's what we're doing.

SPEAKER_00 17:04

I don't like it. But they declared this decision cr catastrophic and a threat to democracy, which I mean isn't everything a threat to democracy these days. So we'll see. I mean, in the case of the Shelby County um case, it clearly didn't have the impact that they all predicted, and I don't think this voting rights act one will either. Trevor Burrus, Jr.

SPEAKER_01 17:22

Yeah, and so again, black registration went up since 2013, right? So it certainly Shelby County certainly wasn't like this new Jim Crow. But what the progressives, I think, would respond is well, we know the South isn't discriminating anymore in the prerequisites and qualifications to voting. But the way they do it now is through what they called second generation barriers. And the second generation barriers were things like redistricting, which takes us directly to kind of the, you know, um Calais decision. But so the way that they would and redistricting, to be clear, I know there's a question whether it's even covered by the Voting Rights Act, which we'll get to in a minute, but like yes, uh redistricting in principle obviously can work in a discriminatory fashion. So the way they did this in the 1960s is they would take, for example, what were dis what were uh single-member districts, and if the result would be that there were um you know black uh uh uh officeholders were elected because one of those districts had sufficient or a sufficient black population that they would succeed in electing their candidate of choice, then these white jurisdictions, often local, not necessarily statewide, would just go to at-large elections. Right? They'd go to multi-member districts. So instead of five districts where one of the you know council members or what have you might be an African American, now the entire city or the entire county voted for all five seats, and therefore you get five white people instead of four white people and one um black person. So like so it clearly could and was used historically to discriminate. There's no question about that. And again, a famous example is you know cracking. If you uh if you want to do single-member districts, just make sure there's a sufficiently small number of you know African Americans in the individual districts so that they wouldn't have um uh an ability basically to elect their candidate of choice. So in the 1960s, it clearly was used in sort of the discriminatory uh in the discriminatory way. Um but uh uh there is, of course, as you know, the this question uh as to whether redistricting is even covered under the text of the Voting Rights Act and under the 15th Amendment. And this goes a little bit um uh to the two-paragraph Alito. Uh I'm sorry, Alito was the the majority author, but the two paragraphs who was it was Thomas.

SPEAKER_00 19:47

Thomas and Gorsuch.

SPEAKER_01 19:48

Yeah, which um I think you quite uh uh liked. So I loved it.

SPEAKER_00 19:52

They I I pulled, if we want, um kind of what they wrote in um in their concurrence, right? So here's what it says. As I explained more than 30 years ago, I would go further and hold that section two of the Voting Rights Act does not regulate districting at all. The relevant text prohibits states from imposing or applying a voting qualification, prerequisite to voting, or standard practice or procedure, as we talked about, in a manner that results in a denial or abridgment of the right to vote based on race. How states draw district lines does not fall within any of those categories. The words in section two instead reach only enactments that regulate citizens' access to the ballot or the processes for counting a ballot. They do not include a state's choice of one districting scheme over another.

SPEAKER_01 20:38

Right. So let's break this up because there's two parts of the text, right? I don't think anybody denies, um, I think everybody would agree that voting qualifications and prerequisites to voting wouldn't cover redistricting, right? I I mean those are things like literacy tests, those are things like good moral character requirements, which of course the you know the county registrar is of course say the good moral character is like, oh, you're white, you're of good moral character, right? I mean, like that that clearly wouldn't cover something like redistricting. But I don't know, Catherine, is a uh standard, practice, or procedure that uh abridges or denies the right to vote? It could okay, so could redistricting be a standard? It's not a standard, I guess. It's a practice, isn't it? It's a practice, but is it a practice that denies someone the right to vote?

SPEAKER_00 21:27

Well, no, because you're still gonna be able to vote. It's just a matter of in what district.

SPEAKER_01 21:31

Aaron Powell Yeah, so that's I guess the argument for the Thomas Gorsuch view here, which is it's a standard invol or it's a procedure or practice involving elections, but it in no way denies your right to cast a vote. So when they say a vote, it's can you cast a vote? Right. Or are you being prohibited from casting a vote?

SPEAKER_00 21:47

Well, if you think of this, like draw this out. I mean, couldn't you argue if you are a Republican in California, you're in a similar situation where you're within lines that make it so that your vote doesn't count as much, but you can Still cast a ballot, right? Isn't that kind of the same thing?

SPEAKER_01 22:02

It is. That's actually a really good point. So the theory here about uh vote dilution is that redistricting does is a practice that at least abridges the right to vote because a black person in a 10% black population district has less voting power. His vote is less effective because he's a minority in that district. And the theory is then therefore that black person will never be able to elect a candidate that he wants. But isn't that actually true of Republicans in most of California, for example, or in the Twin Cities? Are we saying that the fact that Republic a Republican's vote is always wasted? Which is how I feel, by the way, that like my votes I feel like have always been wasted. Yeah. Right? Um wouldn't that be actually the same kind of argument? So so yeah, that is interesting. And if that's true, that can't be right, right? It can't include redistricting.

SPEAKER_00 22:52

Um Yeah, I agree with them. I mean, I like I think that's totally true. Um I they went on, I I pulled a little bit more, uh, because it's not just the redistricting shouldn't qualify. It's they they make this point that it forces us into racial tropes and stereotypes to include them. So here's the first paragraph of Justice Thomas's concurring opinion. He says, I join the court's opinion in full. This court should never have interpreted section two of the Voting Rights Act of 1965 to effectively give racial groups an entitlement to roughly proportional representation. By doing so, the court led legislatures and courts to systematically divide the country into electoral districts along racial lines. Blacks were drawn into black districts and given black representatives, Hispanics were drawn into Hispanic districts and given Hispanic representatives, and so on. That interpretation repr uh rendered Section Two repugnant to any nation that strives for the ideal of a colorblind constitution. Today's decision should largely put an end to this disastrous misadventure in voting rights jurisprudence.

SPEAKER_01 23:52

Now that last sentence, you know, skips ahead a little bit to the to the merits of the Section Two decision um in the Calais case. This is again from the Thomas uh and Gorsuch concurring opinion. There is something weird, you know. So the question we're addressing is whether redistricting, legislative districting even applies. Right? The VRA even extends to it. Do the constitutional amendments, reconstruction amendments, even apply to it, which is something I want to get to in a moment. But it is kind of weird, right, that to include them as if like, oh, black people all think the same way and therefore are entitled to a black represent representative. Doesn't it make us kind of tribalistic?

SPEAKER_00 24:25

Definitely, yeah. And the idea that only a black person could adequately represent black people, or only a white person could adequately represent white people, to me, seems antithetic of like our whole country's goals.

SPEAKER_01 24:40

And of course, it's all a farce here, right? Because the Democrats don't actually believe this, by the way. Right. How many Democrats voted for Winsom Sears for uh governor of Virginia, right? Right. So like they're all for black people electing black people to represent them if the black representatives are Democrats.

SPEAKER_00 24:54

Yes, precisely.

SPEAKER_01 24:55

Aaron Powell Yeah, but if they're Republicans, then it doesn't count, right? So you know this whole thing is is is farcical and actually gets a little bit into the political valence of uh of it all. But do you want to know my most base take today?

SPEAKER_00 25:06

Oh, always, yes.

SPEAKER_01 25:07

As I like to say, I have tenure, so I cannot get fired for um saying this.

SPEAKER_00 25:11

Although he's testing that theory now.

SPEAKER_01 25:14

Yes, I am always testing that theory. I I've been testing that theory, Catherine, since we started this podcast. This whole podcast has been a test. How much can I say before uh getting um uh fired and losing uh my tenure? Um but I don't think redistricting can be included under the Voting Rights Act, because I think that would be unconstitutional. And the reason it's unconstitutional, because remember, we go back to the same point. Congress can only enforce the 14th and 15th Amendments. And if it's not covered, if redistricting isn't covered by the 14th and 15th Amendments, then you cannot include redistricting in the Voting Rights Act. So why isn't it included in the 14th and 15th Amendment? Well, you read the 15th Amendment, right? I think you read it and we have it here. The right of the 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. So again, if redistrict you know is redistricting, does that have anything to do with the right of the citizen a citizen of the United States to vote? No, we already talked about vote dilution. Republicans in California have the same right to vote as um African Americans in states where they're a small minority, for example. Sure. So that doesn't work under the 15th Amendment. Redistricting has, however, been interpreted to um fit under the Equal Protection Clause. So actually, all of these redistricting cases from a constitutional perspective, they're never really Fifteenth Amendment cases. The Fifteenth Amendment is only about the right to vote. But the Fourteenth Amendment says no state shall deny to any person within its jurisdiction the equal protection of the laws. And the theory of these movement lawyers, to whom I'll uh you know we'll come back in a little bit, of the has always been that uh vote dilution and redistricting decisions are subject to the equal protection clause. So actually, when we had the Reynolds v. Sims, this famous one man, one vote decision, like why do all of our districts have to be proportional now in the states and in the House? Um, that was an equal protection decision. It was not a 15th Amendment voting rights decision. It was not a 19th Amendment women's voting rights decision, it was equal protection. Uh and so the problem though is the 14th Amendment doesn't cover political rights. It doesn't cover political rights. Okay, this is the most base thing I'm saying today. So listen up because it's technical. It's technical. So, first of all, equal protection of the laws does not mean equality generally. It means something very specific. It means equal protection of law. What is protection of law? Protection of law is the literal physical protection that the government must give you um in exchange for sovereign obedience, right? It it's it's it's the deal in the social compact. We get out of the state of nature. Do you remember this all relates to our birthright citizenship?

SPEAKER_00 27:54

Yeah, I was gonna say, and I this rings a bell.

SPEAKER_01 27:55

Yeah, the allegiance for protection, right? It's the social compact. We get out of the state of nature and agree to obey the sovereign. And the sovereign's deal is that he will protect us from the defects of the state of nature, namely that other people can violate your rights and commit violence against you. So the protection of law is literally the physical protection that the government and the laws must give you against private violence, violence from other people. It's the judicial remedies against other people, right? You must be able to vindicate your private rights in court. That's what protection of law is. It's not this non-discrimination provision generally. And scholars actually widely agree about this. Scholars think that the Fourteenth Amendment's equality provision actually comes from its privileges or immunities clause. Bear with me, I have a whole book about this, by the way, in case you are interested. It's called The Second Founding, in Introduction to the Fourteenth Amendment, where I talk about this. The privileges or immunities clause says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. What are the privileges and immunities of citizens of the United States that a state can't abridge, that a state must uh treat its citizens equally, like with respect to those things? And the answer is natural rights or civil rights, which are just natural rights as modified by the law of civil society. Natural rights are things that precede government, like your right to contract, your right to acquire and possess property, right, the right to use weapons for self-defense. These are natural rights. Your freedom of speech, freedom of conscience, freedom of thought. These are natural rights that precede government, and government define helps define and regulate these rights, okay? But those are the privileges and immunities of citizens. Political rights are different. And this is all over the literature. In the antebellum period, in the 14th Amendment Reconstruction period, civil rights, or natural rights as modified by the civil law, were protected by the Fourteenth Amendment. They were the privileges and immunities of citizens. Political rights are different. Political rights are like the right to vote, the right to hold office, the right to jury service, and sometimes they would add malicious service. These are, you know, there's there's no political society in the state of nature. These presuppose the existence of political society. Well, the 14th Amendment deals only with civil rights, not political rights. And how do we know this? Not just because they told us that over and over again, but because if the 14th Amendment included political rights, why would we need the 15th Amendment?

unknown 30:07

Right?

SPEAKER_01 30:08

The Fifteenth Amendment guarantees the right to vote. So but wait, if equal protection, like put pretend the 15th Amendment wasn't there. Right? It's starting to make sense, right? Yeah.

SPEAKER_00 30:18

We had to add that on afterward. Obviously, it wasn't a right that they meant to include in the 14th Amendment.

SPEAKER_01 30:23

And so if redistricting is covered by the Equal Protection Clause or the Privileges or Immunities Clause, like why wouldn't voting have been included in the Fourteenth Amendment? But it wasn't. They we we needed a separate amendment to handle that. So in other words, I don't think redistricting decisions are covered by the Equal Protection Clause or the Fourteenth Amendment, because the 14th Amendment only involves civil rights rather than political rights. Now, why is this the most base thing I'm saying today?

SPEAKER_00 30:49

I don't know. Tell us, Elon.

SPEAKER_01 30:51

Because of one man, one vote. If I'm right, then one man, one vote, or today, as we would say, one person, one vote, goes out the window.

SPEAKER_00 31:00

Very woke of you.

SPEAKER_01 31:01

Yeah, uh you're right. I'm gonna go back to one man, one vote, since that is the historically correct phrase, phraseology from Reynolds against Sim. No, but so you know the United States Senate is disproportionate, right? It's not based on population. Right. It's every state gets to um uh senators regardless of that state's population. And this is of often a bone of contention. Progressives say, oh, how unconstitutional how undemocratic. It's yeah. Right there in the Constitution, it's not unconstitutional. Well, states used to be that way. States across the United States who have bicameral legislatures, they have Senates historically, uh, were redist were were districted in a certain way that the upper chamber gave some voting power to say counties, right? So senators were based on counties. Well, not all counties had the same population. And in fact, you had rural counties, just like you have smaller states, that have smaller um populations than the counties with the big cities. And in a case in 1964, it actually goes back to a case called Baker against Carr, but in a case from 1964 called Reynolds Against Sims Sims, the Warren Court, so the Supreme Court of the United States, under Earl Warren, in this progressive living, breathing constitutionalist era, said that uh districts that are not equal in population, so that's State House, State Senate, and the United States House, too, by the way, violate equal protection of the law. And because of Reynolds v. Sims, we now have this redistricting process every 10 years in which you must have to redraw districts to make sure that the populations are essentially equal.

SPEAKER_00 32:28

Wow, I never knew that history.

SPEAKER_01 32:29

And the it has huge political implications. Well, you didn't learn this in A push?

SPEAKER_00 32:32

I thought this was not a good thing.

SPEAKER_01 32:34

I thought you learned everything in A Push.

SPEAKER_00 32:36

No, I don't remember.

SPEAKER_01 32:39

But I mean it had a huge political effect. Now some people dispute just how big the political effect is. But after 1964, you know where we talked about this a little bit, Catherine, with Molly Hemingway on the Alito episode. Because remember, Sam Alito's dad drew legislative districts. You remember that, yeah, in New Jersey uh after the one-man-one vote decision came down. Well back then, especially using a mechanical calculator, it's I kind of thought it was like the abacus or whatever. But uh yeah, so so um the the one-man-one vote came from this equal protection clause and had a huge amount or this interpretation of the equal protection clause and had huge political implications. All of a sudden, like cities become much more powerful. And you know, um the interests of rural voters are I mean, here in Minnesota, right? Here in Minnesota, the twin cities govern everything. And and so now all the counties, all of Minnesota, that there's statewide policy um because the cities control everything. It's famous. It makes a huge difference. Illinois is a famous example of this, by the way, where um rural Republicans had a lot of power in the night you know, prior to 1964. And after that, it's the big city Chicago Democrats controlled everything for since since then, for the last sixty years.

SPEAKER_00 33:48

So hold on, but are you arguing then that the House should just become the Senate?

SPEAKER_01 33:54

Um Well, um not quite. So uh like the United States House. So the United States House. Yeah, so uh the United States House is not like the Senate in the sense that remember, each state only gets two senators, so it's wildly disproportionate. Each state gets a proportionate share of representatives. So California gets a proportionate share of representatives according to its population, right? But within California, could the state legislature draw districts for Congress, congressional districts within California, in which California's allotted proportionate share, you know, nation proportional nationwide, right? Uh is allotted within the state in a slightly disproportionate way. Uh and uh af after, I mean, Reynolds v. Sims and subsequent cases, the answer is they can't do that. But I think before that, congressional districts within a state could be disproportionate and unequal. So you could favor voting in you know a particular constituency within a state. But California would still get its proportionate share. Illinois would still get its proportionate share from a nationwide scheme. And you know, I don't know, like we could we should probably have a podcast, we should get experts on to you know, talk about the effects of one man-one vote. But this is you know c super controversial. If I wasn't tenured and I came out and said, just so you know, one man, one vote's unconstitutional, oh my God, I would never be hired anywhere. Right? So I I I left all my really controversial opinions till after tenure. So that's why I'm writing about birthright now, and now my rationally based listeners get a little bit about why one man-one vote.

SPEAKER_00 35:20

It sounds a little controversial, but you're also saying it was like this before. I mean, not that long ago.

SPEAKER_01 35:26

Yeah. Uh when was not when was 1964? 60 years ago. Actually, it's actually getting farther and farther away when you think about it. Um yeah, over sixty years ago. Um, which is not that far uh now. Look, suppose the really based originalist Supreme Court says, okay, we're done with that, and one man, one vote isn't required. It would still be like a political earthquake in the sense, like what state legislature is gonna go back to disproportionate districts, you know. But again, the the value of it is I I know this isn't what we were supposed to talk about, but this is so important and kind of interesting now that we're talking about this. There actually is I'm not I'm not convin I'm gonna get so fired. I'm just kidding, I have tenure. I have tenure. Okay, so I'm gonna say it. And it's not obvious to me that one man, one vote makes any sense. Right? The whole idea of federalism and having a disproportionate Senate is that if you know the really populous cities want to adopt some policy, they can do that. They can adopt it at the local level, say, for example, and impose it upon themselves. But when they control the national government or the state uh legislature as a whole, then they impose their values on everybody. And you know, so I've have some you know, rural property, I still have a ranch from when like we were in Arizona and everything, and they're all the time, you know, it's like it's like you have these liberal big city policies that affect us, and and these people have no idea what living in a rural county is like or in a rural area is like. And so there is something to having to have geographically distributed buy-in in order to have you know geographically widespread policies.

SPEAKER_00 37:00

I think it's now more than ever, too, with the sh divide we're seeing between rural and urban voting. I mean, it's so it's they're they're so um disparate. It's so different. So I think that more than ever it makes sense that maybe we would allow something different. I don't know. That's very interesting. You're kind of like I'm I'm going a little crazy with the.

SPEAKER_01 37:20

Oh, I love this mind blown. I absolutely I absolutely love that. And you know, so for all those people who think that the Supreme Court, the Roberts Court, and Sam Alito are trying to, you know, favor Republicans or this or that, let me just say there's this other project they could do uh uh that would probably favor Republicans even more, but they're not even gonna go uh that far. But um you know, so I I'm not saying that this is all a stepping stone to getting rid of one man, one vote or Reynolds V. Sims, but uh interesting to think about.

SPEAKER_00 37:48

But the point is, in this context, I did have one other question because I know that in Minnesota, um, when we redistrict that they do use race when they're determining the districts on a state level. Is that now going to be unconstitutional too, like it is for the congressional level?

SPEAKER_01 38:03

I think so. I think so. And that gets us into like the Calais decision.

SPEAKER_00 38:07

Because that could really change the makeup of Minnesota, I assume other places too, other states, and in the state legislature. Trevor Burrus, Jr.

SPEAKER_01 38:14

Well, yeah, you can just see all the redistricting that's going on in the South now after the Kelly decision, which I know we have some maps about that, but we're jumping the gun a little bit. The whole purpose of this digression that I we just had, right? We were asking the question whether districts are even covered under the VRA, right? And Justice uh Gorsuch isn't Justice Thomas and Gorsuch had just a this concurring opinion in the Kelly's case saying that they aren't covered. And I was suggesting my most base view is that it actually would be unconstitutional to cover them, right? Because uh it goes beyond the enforcement, it goes beyond the 14th and 15th Amendments. But as you know, um redistricting is included uh in the Voting Rights Act. And the reason that it is included has to do with the equal protection decisions that I just talked about. The one man-one vote, redistricting was uh supposed to be implicated um by the equal protection clause. And in 1969, five years after Reynolds v. Sims, in a case, I think it was called Allen, I know that I wrote it down somewhere, um, Allen v. State Board of Elections, the Supreme Court presumed that redistricting claims also were cognizable under the Voting Rights Act. Uh so it wasn't just an equal protection claim, um, but uh they were covered by the Voting Rights Act such that the southern states would need preclearance before making redistricting decisions and um things like that. And Congress in 1982 actually kind of codified this by the, you know, they expanded Section 2. So we read the first part of Section 2, but in 1982 they expanded it uh um or clarified, so to speak. And they would they said that uh a violation of Section 2 of the Voting Rights Act is shown if the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected by the previous subsection, in that its members have less opportunity than other members of the electorate to participate in the political process, and here's the key language, to elect representatives of their choice. So this seems to bake in the redistricting decisions under the under um the Equal Protection Clause and then the Allen, the State Board of Election case. And so, although, Catherine, your intuition is Gorsuch's and Thomas's, Thomas and Gorsuch, that it's not covered by the text, and I told you why it would be unconstitutional to include it, it has been presumed to be included because of the equal protection cases, because of state the the Allen case, because of this um uh amendment to the Voting Rights Act in 1982. And so that is the link, that is why redistricting has been covered, and that is why uh the Calais decision had to interpret um uh what exactly does that mean. So they they don't reverse the redistricting thing. They don't say redistricting isn't covered. They don't go as far as you would like to go, or as I would like to go, or as Thomas Gorsuch. Um and so, you know, uh so I guess that kind of takes us to um, you know, after uh uh you know now that redistricting is covered by the VRA, there's been this crazy history of dem what I've called democrat movement lawyers.

SPEAKER_00 41:10

Yeah, it's like democratic voter maximizing. Yeah, that's what it is.

SPEAKER_01 41:14

Is that what the young kids say? Maxing? Like I just heard that the other day. I thought I thought based, yeah, deb maxing. See, I thought based was O'Currant. I'm I'm speaking too much French today. No, what does that mean?

SPEAKER_00 41:26

Okay, there's like a term mogging that the youth are using now. It's like like I don't know. Can someone tell me what it means in the comments? I don't quite know.

SPEAKER_01 41:33

Well, we'll forget it.

SPEAKER_00 41:34

Look that out but it's like you're like doing it better than someone.

SPEAKER_01 41:38

Oh.

SPEAKER_00 41:38

Looks mogging? Isaac's kind of nodding. Looks maxing.

SPEAKER_01 41:42

Our producer's confused, so I don't know if this is actually accurate. Uh but we definitely the theory is is demaxing, right? Is is what this what I've called the movement lawyer theory, right? The the the Democrat movement lawyer theory of the Voting Rights Act uh was that it basically had to maximize Democrat voting power. That was the theory.

SPEAKER_00 42:00

And you wrote about this on our Substack. Everyone should go and subscribe to our Substack if you haven't already, because your piece was really good. And I thought we might as well just read from it.

SPEAKER_01 42:09

Why thank you, Catherine? Oh, that is the nicest thing she said to me all day.

SPEAKER_00 42:12

Read from it right now. So uh here's what you wrote. Here's the basic problem with the Voting Rights Act litigation, which I discovered very quickly while I was clerking. The idea behind the Voting Rights Act was to prevent discrimination against minority voters. But because this applies to legislative districts, many different approaches could be argued to be discrimination. Most hysterically, if the legislature cracked minority voters, which means if you spread them out across multiple districts, that was discrimination. But if you packed them, if you put too many in one district, that was also discrimination. So in the first instance, the idea was the legislature was trying to prevent minorities from electing anyone of their choice. In the second, the idea was that the legislature was trying to give minorities only one district, thereby discriminating against them that way. So you see the problem, the democratic movement lawyer theory of the VRA was that the state legislatures were required to maximize minority voting power. That is, the only way to prove you didn't discriminate is if you created the maximum number of minority-majority districts as possible.

SPEAKER_01 43:13

Yeah, so first of all, I should have said maxing now that uh I know what that word is instead of maximizing. I didn't realize maximizing was such an old word. Yeah. Um but yeah, I mean, so I have to kind of be a little careful what I say here because I first encountered the Voting Rights Act and this Democrat movement lawyer theory when I was a law clerk. I was a law clerk to Judge Jerry Smith on the U.S. Court of Appeals for the Fifth Circuit, your favorite circuit. Of course. And he was part of a three-judge district court assessing the 2011 redistricting maps. And uh, you know, the case went on for actually a few years after I had left. So, you know, none of this should be imputed to my judge, to be clear. Though, you know, he agreed with me, I think, about a lot of stuff, but I don't know exactly what he thinks about what I'm about to say. So none of this should be imputed to him. But as I was sitting there, like at this trial. You know, like listening to these Democrat movement lawyers and DOJ, by the way, who is also under the Obama administration prosecuting this case or pursuing this case. It's kind of astounding what their theory is. They're like, oh, if you crack them a little too much, now you're diluting their power. But if you pack them, you're also diluting their power. So you need to give them the maximum number of districts. You need exactly 55% black in every district that you can so that you can have as many districts as possible. But that's crazy because that's just maximizing Democrat voting power. That's all that is, right? Because they're they all vote for Democrats, especially African Americans. Hispanics are a bit different today, right? I mean, they tend to actually vote both um both ways. And so the theory seemed to be of their theory of the Voting Rights Act is the only way to prove that you aren't discriminating is to create the best conditions possible to elect the most Democrats as possible. And that seems insane to me.

SPEAKER_00 44:51

Isn't that by nature too minimizing the power of the other people, the other races in that district? I mean, you can't do one without doing the other, right?

SPEAKER_01 44:59

Oh my gosh. Well, try doing a minority-majority district that had both African Americans and Latinos in it. That was terrible because they, you know, they were often at odds, like in in Texas, uh, with each other. So the whole thing goes back to what you were saying uh and the Thomas passage, which is like it's pitting races against each other. Like all black people must think the same way, all Hispanics must think the same way. The whole thing, as you said, it just feels antithetical, right, to just what America um is about. So uh and of course everybody understands that, especially with African Americans, and 20, 30 years ago, 10 years ago, also with the Hispanics, like most of them vote for Democrats. All this is is using laws, which remember, we like the Voting Rights Act. We talked about 1965, like it really did an incredible amount to solve the registration problem, solve the suppression problem. And then the Democrats take it, they take this, you know, law intended for a really good purpose, and then they warp it as much as possible and twist it to advance their political power and their political ends. So isn't this just kind of another example of Democrat law fair?

SPEAKER_00 46:01

Democrat law fair, yes, it totally is. Uh I'll read the very end of your substack. You said the movement lawyer interpretation of the VRA, in other words, was something akin to democratic political lawfare. It meant using the legal process and laws intended for entirely different purposes to maximize their political advantage. Not as bad as going after individuals criminally and civilly or with state bars, but a kind of lawfare, using laws enacted for noble purposes and subverting them for political ends. Again, fire peace, Elon.

SPEAKER_01 46:30

Oh, thank you, Catherine. Uh you get a raise. Just kidding, we don't get any money to do this podcast. So actually, you know, follow us on Substack and, you know, we'd appreciate a paid subscription if you were interested. We don't pay ourselves, it's entirely to help promote and produce um this podcast. But uh you got a little sneak peek there um on the Substack. Now you might think I'm crazy, like, oh Elon, how do we know that you're right about this movement lawyer theory? Because of this case. Okay, I'm showing the paper now. We will show this map uh to our audience uh close up.

SPEAKER_00 46:57

This is a crazy map.

SPEAKER_01 46:58

It's the map that was at issue in the Louisiana v. Kelly case. So if our listeners have stayed with us this long, now we're finally gonna get to the Supreme Court decision and what it's all about. But you've basically learned everything you need to know now. Like the answer is just gonna fall into place uh now that you know all this background. So we have this crazy map, okay? Which looks, you know, and so we'll put it up for the uh YouTube audience. You've got how many districts? Six districts, five of which seem relatively compact, relatively contiguous, um counties are kept intact. It kind of looks like normal redistricting, right? Yeah. And then you have this district that's called what did Alito call it? He called it uh bat. It looks like it does look like a bat. Bat-shaped district. Yeah, it looks like a bat. YouTube audience, do you agree? I think it looks like a bat.

SPEAKER_00 47:44

There's so many examples of this, though. If you go around the country, you can find these crazy districts. It's like, how is this really the best way to district? I mean, it's just absurd.

SPEAKER_01 47:55

And the bat the bat district is the uh minority district, right? The minority majority district. So the the district two that looks like a bat here, it cov it breaks one, two, three, four, five, six, seven counties. Right? All the other districts are cohesive, the counties lines aren't broken, so it breaks seven counties, it has this weird, long, elongated shape, it is totally bizarre.

SPEAKER_00 48:14

And look, I don't know anything about uh geography in Louisiana whatsoever, but uh these people are probably really far away. And if I think about Minnesota, the people in the cities have much different goals than the people in the rural areas. Just because you share a skin color doesn't necessarily mean you're gonna have the exact same priorities politically.

SPEAKER_01 48:34

The whole thing is crazy, and as you said, antithetical to like the way we do things. But what's crazy about this map, Catherine, is this was just the one minority majority district. The whole reason the Calais case went up to the Supreme Court is because they wanted a second one. They claimed that a second minority majority district was compelled, required by the Voting Rights Act. This is the Democrat movement lawyer theory, okay? This is what I said, and here is Justice Alito in the court's opinion. As soon as this map was enacted, lawsuits were filed asserting that the map violated the Voting Rights Act by packing large numbers of black voters into a single majority black congressional district and cracking the remaining black voters among the other five districts. After the suit was filed, a court in Louisiana issued an opinion concluding that the map did violate the Voting Rights Act by failing to include a second black majority district. And just to be clear, just to get this first one, it had to look like a bat. Okay, to get the second one, uh uh, we I don't have these here in the notes, um, but if you go to the Supreme Court's opinion in the Calais case, okay, they show you all the various options for having a second black majority district. All of them, they break county lines, they're not contiguous in the same way, they're not comp I should say they're not compact in the same way. And so, you know, that this is literally the Democrat movement um lawyer theory.

SPEAKER_00 49:52

It's just crazy. Their only option is to maximize the voting power of that minority.

SPEAKER_01 49:57

Well, the way they do that, the the the reason they do that is because if they didn't, if American political processes were totally fair and neutral behind a veil of ignorance, districts were competitive, compact, you know, you had if every district looked like districts one, two, three, you know, four, and five here, then Democrats would just lose a lot more. So they take it.

SPEAKER_00 50:17

And you know what really gets me is that people hate redistricting, they hate uh gerrymandering. This is like a thing you see on on polls all the time. Of course they do. But somehow Democrats always manage to put the blame on Republicans. Like now, they're already turning the Supreme Court case into something being like Republicans are pro-gerrymandering. Are you kidding me? If we weren't gerrymandering, Republicans would be way further ahead. It's the Democrats who are always trying to create these bat districts, and that's what Republicans have been fighting against. So it just frustrates me that we are always the ones on the right for some reason that get blamed for this when it shouldn't be that way.

SPEAKER_01 50:50

And wait till we show you the maps of New England, uh, which we'll get to. So the Democrats have been playing this game for a long time and they've been playing it very well. And until now, they've had the assistance of the courts because of the Voting Rights Act. But the Supreme Court put a stop to that in the Calais decision. So now we really don't have to spend that much time, actually, on the Supreme Court's Calais decision. Why? Because we've just explained to you what happened, okay? There was this history of the Voting Rights Act that it was intended for this good purpose, solved this voter suppression problem, was then interpreted to include redistricting, and then emerged this Democrat movement lawyer theory of the Voting Rights Act, which required you know, dem district maxing, right? Maximizing the um you know Democrat voting power by maximizing the number of minority um majority districts. So what does the Calais court say? It puts a stop to that Democrat movement lawyer theory. How does it do that? Kind of in two ways, right? One way is simply to say not having a second majority black district is not the same thing as discriminating against black people, right? You know, if you don't have the maximum number of possible black districts, it's that's not the opposite of discrimination, right? Just because you don't have two as opposed to one doesn't mean you've discriminated or intended to discriminate. There could be any number of traditional redistricting principles that sort of explain that. So it puts the stop to this ridiculous idea that you need to maximize the number of districts. But the real upshot of the holding is they say that you in dr that drawing even one majority-minority district, and certainly drawing two, itself is probably unconstitutional. Why? Because you would be classifying people on the basis of race. And the Supreme Court time and again has told us you can't do that. This is the affirmative action case. Yeah right? The Harvard affirmative action case. So what they're basically saying is by forcing the legislature to consider race in order to draw a second map, you actually are asking the state to act unconstitutionally. It's not the failure to draw the second district that's unconstitutional, it's forcing them to consider race in order to draw the second district that is unconstitutional.

SPEAKER_00 53:00

Yeah, you know what this kind of reminds me of is like the Ibrahim X-Kendi theory that like future discrimination is necessary to get rid of past discrimination. I feel like this has been, especially Clarence Thomas's thing for a long time. Like that's an absurd, absurd notion. And so to me, this looks like the academic version of, you know, the kind of anti-um Kendr Kendi theory that we've been seeing conservatives.

SPEAKER_01 53:22

And Chief Justice Roberts, in fact, disagreed explicitly with Ibrahim, how do you say his name? A Kendi. Ibrahim X Kendi. Kendi Kendi in a 2007 case called Parents Involved, which was also about sort of affirmative action. And he said the way to end discrimination on the basis of race is to end discrimination on the basis of race. Yeah. Or it's to stop discriminating on the basis of race, which is exactly the opposite of the anti-racist view, which is like you have to discriminate against white people. Right. Right, in order to stop discrimination, I suppose. So this is a natural extension of the SSFA case, the Harvard affirmative action case. They basically said that this theory, the Democrat movement lawyer theory of the Voting Rights Act, not only is, you know, not the opposite of discrimination, um, but itself is unconstitutional discrimination.

SPEAKER_00 54:06

Yeah.

SPEAKER_01 54:07

And that's what the Calais decision holds. And they say this brings it more in line with the actual meaning of the 15th Amendment and 14th Amendment. Because remember what I said, what we said from the beginning. You said it first. You must only enforce the amendment. Well, requiring people to discriminate on the basis of race certainly doesn't enforce the amendment and seems to violate it. And so you can't do that now. They cannot con force legislatures to consider race for the purpose of creating like a second or even a first majority black district or majority-minority district, but also forcing the legislature to consider race in order to draw that district is itself unconstitutional and therefore uh not part of the voting rights act properly interpreted, is uh basically what the court said in that case.

SPEAKER_00 54:50

Well, and that makes perfect sense to me.

SPEAKER_01 54:52

Um as it should.

SPEAKER_00 54:54

And I think maybe we could end this episode like a little with something in my wheelhouse, a little bit of the political implications of all of this. Um because as I said, just don't get me fired. I'll do my best. But as I said, it's already the left is already doing a quick narrative shift to say that all of these changes that are going on right now, because there is kind of a redistricting battle that's now happening as a result of this decision. They're saying this is all the fault of Republicans. It is not. What's happening right now is Republicans trying to fix the racist lines that were in place to maximize, what did we call it? Dem max their power. They are undoing that. So that's crucially important as you hear the narrative that comes out of the mainstream media, I think, in the coming days.

SPEAKER_01 55:38

So what's the status of the redistricting in this cycle then?

SPEAKER_00 55:41

So there is a lot going on. I would say the the main thing is there Republicans could gain up to like 12 seats in the South, is what I'm hearing. Now, when I looked at it and looked at it state by state, um, I thought it was more realistically going to be about eight or nine.

SPEAKER_01 55:58

Um so we have this map here, which I love because it was tweeted out by the Senate Judiciary Democrats, and so we'll show it to our YouTube audience where the Senate Judiciary Dems say, this is what the Supreme Court conservative supermajority just enabled, and you'll see the a reduction of 12 seats. Yeah. And my thought is, well, thank you for admitting that the only reason you had that many seats in the South is because of race discrimination on the part of your Democrat redistrictors.

SPEAKER_00 56:22

Stephen Miller tweeted the combination of illegal alien apportionment, flawed censuses, and unconstitutionally racially gerrymandered districts created an artificial 40-plus house seats for Democrats. And I think that is absolutely true when you take all those things into account. It's just crazy.

SPEAKER_01 56:37

And the biggest example of this is New England, I think you were saying, right?

SPEAKER_00 56:40

Yes, okay. So they have about 40% Republicans in New England. Yet look at their map. It's completely blue. Republicans have zero states. And we'll show this seats in all of those states.

SPEAKER_01 56:51

To our audience, it's from a Twitter account, X account, American Century, but it's a really nice map, and yeah, it's like 40, some almost 50 percent, 46 percent Republicans in Maine and um uh New Hampshire. Wow.

SPEAKER_00 57:03

And yet not a single Republican has a seat there.

SPEAKER_01 57:06

And there's New Mexico, which I was confused about because that's not New England. But I guess New Mexico also is almost 50 percent Republican and has not a single district, right? So as you were saying, the Democrats are really good.

SPEAKER_00 57:17

Um much better at uh the gerrymandering than than we are on the right. But I think the main question now, and one that I asked Molly Hemingway too, is can any of this redistricting happen in time for the midterms that are really coming up? Um the timeline is tight, obviously, and it's complicated by the fact that some of these states have already had primaries. Um so eight states have already enacted new maps ahead of the midterms, giving Republicans a narrow edge at this point in the redistricting war, though legal challenges are still pending in some of these states like Florida. Uh for his part, Trump has said, do whatever you need to do, states. I pulled his tweet, which is kind of funny. We cannot allow there to be an election that is conducted unconstitutionally simply for the convenience of state legislatures. If they have to vote twice, so be it. We should demand that state legislatures do what the Supreme Court says must be done.

SPEAKER_01 58:08

And so this morning, I think it was, right, the Supreme Court actually sent the mandate down to the lower courts so that they could actually start undoing in Louisiana the uh the maps that have been declared to be unconstitutional. Because normally the Supreme Court holds its mandate, so it issues an opinion, but it doesn't actually send the case back down for like 30 some days. But they said, hey, could we get it please so we could do this redistricting and fix our unconstitutional maps? And this led to uh debate, uh a sh a short-written debate between Justice Alito and Justice Gitanji Brown Jackson, I think this morning, right?

SPEAKER_00 58:39

Yeah, it was very interesting. Justice Jackson basically accused the majority of acting politically. Uh and Justice Alito, joined by Gorisich and Thomas, responded saying, the dissent goes on to claim that our decision represents an unprincipled use of power that is groundless and utterly irresponsible charge.

SPEAKER_01 58:56

And he also calls it insulting, right? Yeah. And it's like, and he emphasizes that wait, this case was conferenced and decided seven months ago, suggesting what Molly was talking about on our show, which is they it's the Democrat just appointed justices who have been delaying this case. Right. And now to accuse the Republican majority of trying to take partisan political advantage by just sending the mandate so that Louisiana can have like a constitutional district for his elections.

SPEAKER_00 59:18

And he also made the point that wouldn't them holding their mandate, wouldn't that also be a partisan political decision the way she's looking at it? I mean, either way, aren't they putting their thumb on the scale for someone?

SPEAKER_01 59:29

I think that's right. And so I don't know. What's your guess, Catherine? Are all these states gonna do it in time or at least nine years?

SPEAKER_00 59:35

No, no, they're all in different places. Like Florida was really interesting. Florida had a map locked and loaded that Governor DeSantis already signed into law on Monday, that if it sticks, Republicans would be able to gain four seats. And I think it will, but there are, of course, legal challenges. Um Tennessee and Alabama have called special sessions. Um Alabama's kind of weird though. And then Georgia and Mississippi don't seem to either be like willing or able to get this done. Um same with South Carolina, a little iffy. So, like I said, optimistically, a lot of people are saying it could be up to 12 seats. I even saw 19. Optimistically and realistically, I think the GOP could be looking at seven to nine seats. And just for reference as to you know what this could do for us in the midterms, um the US House after the 2024 elections was at 220 Republicans and 215 Democrats. Pretty close.

SPEAKER_01 1:00:23

Very slim.

SPEAKER_00 1:00:24

And in the 2018 elections, the midterm elections during Trump's first term, Democrats gained control of the House from Republicans after netting 40 seats. Of course, this is the peak of like Trump derangement syndrome, right? So I mean, I don't think that'll happen again, but that's a huge swing, one that nine now solidly Republican districts doesn't necessarily help. On the other hand, in the last midterms when Joe Biden was president, Republicans netted nine seats. So there's a lot of variability in what could happen. Obviously, this does help Republicans, but I did see that um Democrats have redistricted in California, Utah, and Virginia and think they could gain 10 seats from their redistricting. So we'll see.

SPEAKER_01 1:01:05

Yeah, so the redistricting wars have just begun, it sounds like. But we hope uh to our listeners and our viewers on YouTube that you got a good sense of what's actually at stake at the Louisiana v. Uh in the Louisiana v. Calais decision. I hope you understand the Voting Rights Act, all its history and what led up to it and what led up to today's decisions. And we hope you enjoyed the show. And please catch our Monday episode this week. This is like a you get two for one uh uh for in one week uh with Molly Hemingway. But I think that's all we have for today.

SPEAKER_00 1:01:34

I think it is. Thank you so much, everyone, for joining us. Don't forget to like and follow and uh go find us on Substack.

SPEAKER_01 1:01:39

See you next week.