Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Gerrymandering Goes Back to Court
Date: September 16, 2017
Host: Dahlia Lithwick
Guest: Rick Hasen, Chancellor’s Professor of Law and Political Science, UC Irvine

Brief Overview

This episode dives into the urgent and complex world of voting rights as the U.S. Supreme Court enters the 2017 term—highlighting why this could be the most consequential year for voting law in decades. The conversation focuses on key court cases about partisan and racial gerrymandering, the evolving legal standards, looming voting rights legislation, and the controversial Trump administration voting commission. Guest Rick Hasen, a leading expert on election law, guides listeners through what's at stake and who is holding power in this critical legal moment.

Key Discussion Points & Insights

1. The Supreme Court’s Blockbuster 2017 Term ([00:12]–[01:32])

• Lithwick frames voting rights as the central, high-stakes legal battleground for the upcoming Court term, emphasizing its complexity and the government's urgent role.
• Hasen concurs, noting the Supreme Court’s pivotal moment in addressing partisan gerrymandering—specifically calling out the significance of upcoming cases like Gill v. Whitford (Wisconsin), as well as related disputes from Ohio and Texas.

Quote
"Everyone who's putting their faith in Justice Kennedy to save voting rights in this country is putting a lot of weight where it might not be warranted."
— Rick Hasen ([00:02])

2. The Gill v. Whitford Case: A New Test for Partisan Gerrymandering ([02:21]–[10:37])

• History of Supreme Court Indecision: Hasen traces the legal history:
  • Davis v. Bandemer (1980s): Set an impossible standard for challenging gerrymanders.
  • Vieth v. Jubelirer (2004): A 4-1-4 split; Justice Kennedy was the swing vote, wanting a manageable standard before the Court could intervene.
• What’s Unique About Gill?:
  • Gill v. Whitford introduces the "efficiency gap" as a new metric for measuring when partisan concerns in redistricting go too far. (Developed by Eric McGhee and Nick Stephanopoulos.)
  • Efficiency gap measures "wasted votes"—either packed into one district or cracked across many—to quantify partisan bias.
• Tech’s Impact: Advances in computing and data science have made partisan gerrymanders both more durable and harder to challenge.
• Expert Momentum: Even redistricting experts who have worked for partisan legislatures now say it’s time for courts to act.

Quote "In North Carolina, given that it's a 50-50 state, why did you draw 10 of your 13 congressional districts to favor Republicans? And the answer...was because we couldn't figure out how to draw an 11th."
— Rick Hasen ([06:24])

3. Racial vs. Partisan Gerrymandering: Legal Distinctions and Messy Realities ([10:37]–[14:02])

• Racial Gerrymanders: Under the Voting Rights Act, some use of race is required, but excessive consideration becomes unconstitutional (per Shaw v. Reno).
• Shift in Use: In the '90s, racial gerrymander claims often came from conservatives. Today, they’re used by liberals and minority rights advocates, as partisan and racial identities increasingly overlap.
• Contemporary Challenges: It's often impossible to disentangle party and race—as in states where nearly all African Americans vote Democratic and most whites vote Republican.

Quote
"So now this racial gerrymandering cause of action has been transformed into a tool to help the left rather than the right in their voting rights cases."
— Rick Hasen ([13:20])

4. Texas: Redistricting, Voter ID Laws, and the Supreme Court ([14:02]–[17:54])

• Two Texas Cases: Redistricting (with both Section 2 and racial gerrymander claims) and voter ID law.
• SCOTUS Surprise: Supreme Court, including Justice Kennedy, halted lower court-ordered remedial maps—a sign Kennedy may side against aggressive voting rights remedies, raising doubts for voting rights advocates.
• Looming Section 3 "Bail In": Persistent findings of intentional racial discrimination in Texas could trigger renewed federal oversight over its elections.

5. Ohio's Voter Purge Policy and the Future of Registration ([17:54]–[23:29])

• Husted Case: Concerns Ohio’s practice of purging voters if they haven’t voted and don’t return a postcard confirmation—potentially undermining voter protections under the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA).
• DOJ Flip-Flop: The Justice Department under Trump reversed the Obama-era stance—now supporting Ohio and stricter roll purges, raising the stakes for federal protections.
• National Implications: Tighter purges and registration requirements have the biggest impact on turnout, often suppressing participation in elections.

Quote
"The single biggest impediment for people to vote in the United States is they're not registered or not properly registered."
— Rick Hasen ([18:50])

6. The Trump Administration’s Election Commission ([23:29]–[28:26])

• Unusual Commission Makeup: Historically, voting commissions are bipartisan; this one is not. It's chaired by Vice President Pence and Kris Kobach, who is known for advocating voter restrictions.
• Commission’s Real Goal: Hasen views the commission’s main aim as sowing distrust, exaggerating fraud risks and justifying restrictive voting measures.
• Recent Events: FOIA requests suggest a deliberate exclusion of Democrats; Kobach’s misleading claims about New Hampshire voter fraud are debunked but continue to circulate.
• Outlook: The commission may issue no recommendations, but the damage to public trust could be lasting.

Quote
"I think that's what I'm expecting from the commission. In the end, it's going to be a report that says...we don't know how much fraud there is, but the potential for fraud is there. And therefore, we need to take these steps to prevent fraud to make it harder for people to register and to vote. I think that's the end game."
— Rick Hasen ([27:08])

7. The Psychology of Voting Rights at the Supreme Court ([29:12]–[31:39])

• Kennedy’s Unpredictable Role: Hasen cautions against assuming Justice Kennedy will save voting rights, despite his pivotal vote and prior openness to new standards.
• The Stakes: The Court’s decisions are about more than just legal rules—they affect fundamental confidence in democracy.

Quote
"He is the most powerful person in the law in the United States right now...But I can't tell you what he's going to do in these cases."
— Rick Hasen ([31:18])

Notable Quotes & Memorable Moments

• "If you give the people who are in power the chance to draw the lines, they're going to sometimes take advantage of it."
  — Rick Hasen ([06:47])

• "In both the Texas redistricting case and the Texas voter ID case, there's an issue lurking in the background...putting Texas back under federal supervision for its voting laws for up to 10 years."
  — Rick Hasen ([16:55])

• "There's a deep nihilist strain through all of this. Even if they produce nothing, the fact is, if they are destabilizing confidence in the very act of voting, maybe, maybe they get what they want, which is fewer people voting."
  — Dahlia Lithwick ([28:26])

Timestamps for Key Segments

• [00:12] – Episode Introduction & SCOTUS Term Overview
• [02:21] – Laying out the Gill v. Whitford case & Supreme Court precedent
• [07:48] – The efficiency gap: a new metric for gerrymandering
• [10:51] – Racial vs. partisan gerrymandering: legal distinctions explained
• [14:29] – Texas redistricting and voter ID developments
• [18:37] – Ohio’s voter purge case (Husted) and national voter registration law
• [23:29] – The Trump Pence-Kobach Election Commission: motives and impacts
• [29:45] – Does the Supreme Court feel the "confidence in democracy" crisis?
• [31:39] – Wrapping up: Justice Kennedy’s unpredictable influence

Tone & Language

Throughout the episode, the tone is urgent, analytical, and candid—Dahlia Lithwick and Rick Hasen are frank about what's at stake and skeptical about politics behind the law. They speak directly about risks to democracy and use vivid, persuasive examples to make complex legal issues accessible but compelling.

This summary covers all the major themes, arguments, and developments in the episode, offering listeners who missed it a comprehensive and engaging guide to the urgent questions shaping America's voting rights battles.