BREAKING: SCOTUS Deals Another Blow to Multiracial Democracy

Summary

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Strict Scrutiny: BREAKING – SCOTUS Deals Another Blow to Multiracial Democracy

Episode Date: April 29, 2026
Hosts: Leah Litman, Melissa Murray, Kate Shaw
Guest: Mark Elias (Chair, Elias Law Group; Founder, Democracy Docket)

Episode Overview

This episode offers an urgent, in-depth analysis of the Supreme Court's decision in Louisiana v. Kelly, a landmark case all but ending a key provision of the Voting Rights Act (VRA). The hosts are joined by Mark Elias, voting rights attorney, to break down the case, its immediate implications, the legal reasoning, and the broader impact on American democracy, especially multiracial representation and future elections. The tone is sharp, irreverent, and deeply concerned about the Court’s trajectory.

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Key Discussion Points and Insights

1. What Happened in Louisiana v. Kelly?

[02:39] – [04:21]

• Case Facts: Louisiana drew districts in which Black voters could select their preferred candidate in only one out of six districts, despite being one-third of the population. Courts previously found this violated the VRA, requiring Louisiana to create a second Black-opportunity district.
• SCOTUS Decision: Justice Alito, writing for the majority, ruled the original map was permissible under VRA as “properly construed.” This reframing guts the last operative section (Section 2) of the Voting Rights Act for redistricting cases.

Kate Shaw: “Spoiler alert. That future is over. It's just about as bad as expected. It was, after all, written by Sam Alito.” [02:39]

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2. Immediate Impact on Democracy and Redistricting

[04:21] – [06:56]

• Cynical and Strategic: Mark Elias calls the decision "as cynical as the Supreme Court could possibly issue," arguing it would have been "more intellectually honest" to just declare Section 2 unconstitutional.
• The ruling essentially says the VRA allows minority districts only as long as those voters elect Republicans, thereby nullifying its intent.
• Litmus Test: Now, states under unified Republican control can gerrymander for partisan advantage and sideline minority voter influence with near impunity.

Mark Elias:
“...the conservatives and the majority on this court are saying that they are properly construing section 2 is literally them saying black voters can have districts as long as they vote for Republicans. That is essentially the holding of this.” [04:41]
“...this was the gutting of the last piece of the Voting Rights act doing work.” [05:11]

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3. Political Calculations Behind the Decision

[06:56] – [08:23]

• The hosts discuss the contrast between this opinion’s “understated, antiseptic” framing versus overt overruling as seen in Dobbs.
• They suggest this approach is designed to minimize public backlash and reduce the likelihood of widespread mobilization in defense of voting rights.

Melissa Murray:
“Was it kind of framed the way it was in order to reduce the chances of that kind of response and pushback?” [06:56]

Mark Elias:
“I think that’s exactly why they did it this way... We face the risk that those of us in the pro-democracy community take the bait and say, well, you know, at least they didn’t overturn the Voting Rights Act. No, they overturned the Voting Rights Act.” [07:31]

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4. Potential Impact on Upcoming Elections (2026, 2028, and Beyond)

[08:23] – [12:28]

• Immediate Changes: Florida is already redrawing maps, possibly adding four more Republican congressional seats. May backfire due to logistical issues and voter backlash.
• Medium/Long-Term: Could affect 12 to 70+ congressional districts. The realignment may unfold gradually due to practical deadlines and ongoing litigation.
• Note of Hope: After Shelby County, litigation in Virginia and North Carolina actually increased Black representation through state court victories.

Mark Elias:
"After Shelby county, everybody said this is going to cost Democrats seats everywhere. And I went and I sued Virginia and I sued North Carolina...and I won those cases in the US Supreme Court. It led to the creation of additional black districts and additional Democratic seats in both states." [11:52]

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5. Section 2 Litigation and the “Death” of the Voting Rights Act

[12:28] – [16:49]

• Kagan’s dissent calls Section 2 “a dead letter”; Thomas concurs, viewing this as the end of federal intervention in redistricting.
• The Court’s logic essentially requires minority plaintiffs to prove discrimination only if their hypothetical alternative map still produces the same partisan outcome—a virtual impossibility.

Kate Shaw:
“Like you might as well require plaintiffs to show that the tooth fairy is real just while you're at it.” [14:11]

Mark Elias:
“In order to [succeed], you need to draw a map in which the black voters vote Republican, which...is an absolute catastrophe and insult.” [13:28]

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6. Future Litigation—State Courts and Intentional Discrimination

[14:49] – [17:20]

• With Section 2 gutted, new focus will turn to state constitutions and courts.
• The tension between intentional racial discrimination and “race-neutral” partisan gerrymandering will fuel further litigation. Cases may hinge on proof of intentional discrimination, which remains difficult but not impossible.

Melissa Murray:
“They have not resolved all ambiguity in this incredibly complex body of law, nor have they foreclosed all possible avenues.” [16:49]

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7. Alarming Procedural Overreach by Supreme Court

[17:20] – [19:09]

• Mark Elias points out an under-discussed dimension: the Court imposed this question on the parties—forcing re-argument on an issue no one originally raised, a rare and troubling assertiveness reminiscent of Citizens United.

Mark Elias:
“This was a case that nobody asked the Supreme Court to decide, and the Supreme Court ordered the parties to reargue it, to decide it...it feels like the conservatives are giving up even the pretense of 'we are just deciding the thing that is litigated before us.' And I think that’s really...another threat to where this court will go.” [17:29]

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The Court’s Reasoning: Dissected

[26:06] – [34:37]

• Alito’s “Reasoning”: Plaintiffs must now show that alternative maps would maintain partisan balance, i.e., Democrats win only if racial minorities would have won anyway.
• Partisan Gerrymandering Now a “Good”: The opinion reimagines partisan gerrymandering as a constitutionally valued criterion, not merely “distasteful.”
• Originalism Irony: The majority invokes changes in contemporary racial attitudes in the South to prohibit remedies that address present-day inequities under the guise of enforcing the 15th Amendment.

Key Quotes from the Majority (Alito):

• “In considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim, a constitutionally permissible criterion...” [28:08]
• “The focus of Section 2 must be on current conditions, not on decades-old data relevant to decades-old problems.” [31:33]
• (On intent) “While that interpretation does not demand a finding of intentional discrimination, it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” [32:33]

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Notable Kagan Dissent Quotes:
“...the Voting Rights act is, or now more accurately, was, one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our nation's history...the Court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity. I dissent.” [37:16]
“The VRA was born of the literal blood of Union soldiers and civil rights marchers... Only [Congress has] the right to say it is no longer needed. Not the members of this Court. I dissent then, from this latest chapter in the majority's now completed demolition of the Voting Rights Act.” [38:02]

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8. Broader Democratic Consequences and Call to Action

[36:08] – [39:28]

• This decision is part of a trilogy with Shelby County and Brnovich v. DNC that collectively dismantles the VRA, threatening the very foundation of multiracial democracy in the United States.
• The hosts call on listeners to resist minimizing the ruling (“could have been worse”), recognize the Court’s role as anti-democratic, and demand democratic reform—especially Supreme Court reform.

Kate Shaw:
“My preferred framing would be something like a judicial coup or a revolution against multiracial democracy and for white supremacy.” [34:39]

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Timestamps for Important Segments

• [02:39] — Introduction of Louisiana v. Kelly and overview of the SCOTUS decision
• [04:39] — Mark Elias on the impact for democracy and the cynical nature of the ruling
• [07:31] — Discussion of political strategy behind Court decision, efforts to blunt public response
• [08:23] — Elias on immediate and long-term impact for congressional districts and election strategy
• [12:28] — Section 2 litigation is “virtually impossible” now, Kagan and Thomas’s dissents
• [17:29] — Supreme Court’s overreach in crafting questions it wanted to answer
• [26:06] — Deep dive into the “reasoning” of the majority opinion and its implications
• [31:33] — Majority’s argument: Court should focus only on “current conditions”
• [37:16] — Dissenting opinions: The VRA’s legacy and the Court’s betrayal

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Most Memorable Quotes & Moments

• Mark Elias:
  “The idea that the conservatives and the majority on this court are saying that they are properly construing section 2 is literally them saying black voters can have districts as long as they vote for Republicans. That is essentially the holding of this.” [04:41]

• Kate Shaw:
  “Like you might as well require plaintiffs to show that the tooth fairy is real just while you're at it.” [14:11]

• Melissa Murray:
  “Congress is a cuck.” [34:10]

• Kate Shaw:
  “My preferred framing would be something like a judicial coup or a revolution against multiracial democracy and for white supremacy.” [34:39]

• Justice Kagan (quoted by hosts):
  “I dissent then, from this latest chapter in the majority's now completed demolition of the Voting Rights Act.” [38:02]

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Summary Takeaways

• The Supreme Court’s decision in Louisiana v. Kelly fundamentally eviscerates Section 2 of the Voting Rights Act, making it virtually impossible to challenge racial discrimination in redistricting.
• The ruling cloaks its radicalism in technicalities and “antiseptic” reasoning, but its effect is to greenlight partisan gerrymandering that sidelines minority voters—unless they elect Republicans.
• The decision fits into a broader anti-democracy trend and judicial overreach in the Roberts Court, with the hosts urging listeners not to minimize its impact and to push for Supreme Court and broader democracy reforms.

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If you care about democracy, voting rights, or the ongoing devolution of constitutional protections in the U.S., this episode is essential listening.

Transcript

[Leah Litman]

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You're not alone. If it feels like Groundhog Day every morning when you read the news or even when you listen to what we're talking about here on Strict Scrutiny. And while it's overwhelming seeing the trajectory our country is on, we all show up every day trying to find ways to make it better, to educate our neighbors and to fight for democracy. And our friends at Americans United have been doing the same thing day in and day out for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti Christian bias task force, which, spoiler alert, is anything but unbiased. AU has been tracking every mention of Christian nationalist rhetoric from this administration and partnering with many allied organizations to sue and protect our constitutional right of church state separation, the right that protects all of our abilities to be who we are and live as we choose, so long as we don't harm others. It's easy to get apathetic as we're all seeing and hearing these attacks on our freedoms every single day and and we're watching religion be weaponized for a power grab. But now isn't the time to give up. Now is the time to fight back against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. You can learn more by visiting au.org crooked because Church State separation protects us all

[Kate Shaw]

day or night. VRBoCare is here 24. 7 to help make every part of your stay seamless. If anything comes up or you simply need a little guidance, support is ready whenever you reach out. From the moment you book to the moment you head home. We're here to help things run smoothly because a great trip starts with the right support. And hey, a good playlist doesn't hurt either.

Mr. Chief justice, may it please the court. It's an old joke, but when a

[Mark Elias]

man argues against two beautiful ladies like this, they're going to have last words.

[Kate Shaw]

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Yes, listeners, it's here. Today we got the Supreme Court's decision in Louisiana vs. Kelly, the case about the future of the Voting Rights Act's protections against racial discrimination in redistricting. Spoiler alert. That future is over. It's just about as bad as expected. It was, after all, written by Sam Alito. We're going to quickly walk through the implications and potential fallout of the case with help from Mark Elias, chair of Elias Law Group and founder of Democracy Docket. And then we may add a few additional beats on the Court's reasoning, such as it is. Welcome back to the show, Mark.

[Mark Elias]

Well, I wish I was coming back under better circumstances, but I guess I'm glad to be back.

[Melissa Murray]

This is rarely the case in this line of work, but today is an especially bad one.

[Mark Elias]

You know, Leah Lippman is a judicial realist, and she was right.

[Melissa Murray]

Careful, that's T shirts printing in 30 seconds is the sound you're hearing right now. But she indeed was right then and will continue to be right. Anyway, Mark, super grateful that you're joining us on a day like this. Let's just quickly remind our listeners of the facts of Calais. They're pretty well known. The state of Louisiana drew district districts that allowed black voters to select preferred candidates in one out of six districts, even though about one third of Louisiana citizens are black. The math wasn't mathing unless districts were drawn to lock them out of power. Maybe. Ding, ding, ding.

[Kate Shaw]

Because courts said that map violated the Voting Rights Act, Louisiana was required to draw new districts that complied with the vra. It did. So the districts gave minority voters opportunity to select another candidate. And that compliant map with two black opportunity districts was challenged as unconstitutional discrimination. And in Calais, Sam Alito said the Voting Rights act, properly construed, did not require Louisiana to draw a new district because its initial map locking black voters out of political power was very legal, very cool, very demure, and very mindful.

[Melissa Murray]

So, okay, Mark, we are legal nerds, as are you, so we are definitely going to get into the court's reasoning. But this decision is also just super significant for our multiracial democracy and kind of we wanted to start there with a question of impact. So can you talk about what effect the decision is going to have on maps, districting, and democracy in general?

[Mark Elias]

Yeah. So first of all, this was as cynical a decision as the Supreme Court could possibly issue. I mean, to be honest with you, it would have been much more intellectually honest for them to just say Section two of the Voting Rights act is unconstitutional under whatever theory of unconstitutional. The idea that the conservatives and the majority on this court are saying that they are properly construing section 2 is literally them saying black voters can have districts as long as they vote for Republicans. That is essentially the holding of this. So what does this mean for democracy? It's a big setback and we need to be honest, honest about that. Like, you know, this was the gutting of the last piece of the Voting Rights act doing work. And it was the provision that particularly was important because it applied nationwide. A point, I might add, that the chief justice himself made when he wrote the opinion striking down Section 5 of the Voting Rights act in Shelby County. He said, don't worry. This section two, still very vital, Applies everywhere. Don't worry.

[Kate Shaw]

And then he said, watch this. Psych.

[Mark Elias]

So it's. Look, it's bad for a multiracial democracy. It's bad for democracy. Like what has happened here is that in a series of court cases, the Supreme Court has said partisan gerrymandering just fine. Discriminating against minority voters now, just fine. And if you want to impose a minority majority district or Voting Rights act district, it needs to reflect the partisan impulses of the legislature, which are just fine, because partisan gerrymandering is just fine. So what we are left with is that in state after state, where Republicans control the entire process, they have the legislative control and the gubernatorial process, governor control, they will now gerrymander on explicitly partisan grounds. That will insulate them in one direction. They will trample all over the voting rights of minority voters with near impunity, and they will look and say, look, we met all the Supreme Court's tests under the Voting Rights Act. That is why it is so cynical, Kate, because it would have been better for them to just say there is no Voting Rights act, but rather to hang that what they are now going to say is lawful under the Voting Rights act is an absolute abomination.

[Melissa Murray]

So it's an abomination, and it's wildly cynical. Is it also politically strategic? I mean, you know, you think about comparing a decision like this to Dobbs, which said forthrightly, we are overturning Roe versus Wade, and that really galvanized an important electoral and popular reaction. I think it's entirely possible that a decision that said forthrightly we are actually overruling on the grounds of the Constitution, the last remaining vestige of the Voting Rights Act. That might have spurred a real response, and I hope this one does, too. But was it kind of framed the way it was in order to reduce the chances of that kind of response and pushback?

[Mark Elias]

Yeah, I think that's exactly why they did it this way. I think exactly they did it that way. And I think we can't allow them to get away with that. You know, I'm old enough, Kate, and this was very controversial at the time. It's hard for people to recognize this was actually controversial at the time. In 1993, there was a debate in the Casey decision whether the pro choice community ought to just say this is overturning Roe versus Wade. And by the way, I was in the camp of saying, yeah, we ought to just say what the Supreme Court is doing here is fundamentally altering Roe versus Wade in a way that is going to allow for its eventual chipping away and overturning. Now, that doesn't mean I was right. It stood for a much longer period of time than I thought it would. But I think the risk that we face right now is those of us in the pro democracy community take the bait and say, well, you know, at least they didn't overturn the Voting Rights Act. No, they overturned the Voting Rights Act.

[Kate Shaw]

And I think Justice Kagan also called this out, the attempt to basically depict the opinion as doing something other than it did. You know, she said its opinion basically presents itself as understated, even antiseptic. And the majority doesn't announce today's holding as all but nullifying the Voting Rights act when it did. I mean, this could be the most significant Supreme Court race related decision in a while, just given dismantling the number of districts electing representatives for minority communities that could be at stake. We've talked about this before, but just to remind our listeners, Nick Stephanopoulos, professor at Harvard Law, voting rights expert, estimated that somewhere about 70 congressional districts could be stripped of protection under the Voting Rights Act. And that's just the number of districts in Congress. Marc, I know we've talked about this decision and this decision has been talked about in terms of what it might mean for the 2026 midterms. Florida seemed interested in potentially taking this and drawing even more districts. What might this decision mean for the upcoming midterms?

[Mark Elias]

All right, so Florida is, as we speak, drawing a new map and they are going to add or try to add four more Republican seats. Now, I think in Florida, just at a political level, I think that's gonna probably backfire on them. And I think actually the congressional delegation knows that, which is why they're not all that keen on this. I think Ron DeSantis is auditioning for something else with Donald Trump. And like he figures he won't be blamed if this winds up being a dummy mander. He'll get the credit for doing the here and now sounds very familia and Trump world. But I think your broader question, though is the right one, which is what does this mean for 2026? What does it mean for 2028 in 2026? Look, I think there will be, obviously it'll affect at least one seat in Louisiana, maybe two. Perhaps it impacts a seat in Alabama, maybe, maybe not. I say that because there's another VRA case that's kind of percolating before the court. Beyond that, Republicans need to be careful in two directions. The first is at a political level. They are facing an unpopular an electorate that doesn't much care for them. And, you know, it's not like when you redistrict voters go away, right? I mean, these minority voters have to go in someone's district. And I don't see a lot of Republicans in these states raising their hand to say, oh yes, please take my 65% Republican district and make it a 52, 55% Republican district in this political environment. So that may put a little bit of break on it. But I think the real break it for 2026 is just the logistics and the practicality. I mean, the federal law requires that military and overseas ballots go out 45 days before a primary and 90 days before a general. And those are hard federal deadlines that states can't mess with. States have already had primaries and there's a lot of talk on the right about, oh, we'll just hold new primaries. Let me be honest with you, and you can share this with your Republican guests if you ever have any. If they think they get to just disenfranchise a bunch of voters who have already voted by saying, never mind, they're get sued. And under the conservatives analysis in Bost, where they adopted Justice Scalia's language about undermining the foundation of democracy and confidence in elections by after the fact throwing out votes, I don't think they're going to get away with that. At least they're going to get sued if they try to get away with it. So I think it'll be relatively modest for 2026. I think 2028, I hear estimates all over the place. The New York Times says 12, Fair Fight founder Steve Abrams says closer to 30. Nick Stephanopoulos says maybe it's 70. It's going to be a lot of seats that are going to be in play. But I want to offer you one piece of hope. After Shelby county, everybody said this is going to cost Democrats seats everywhere. And I went and I sued Virginia and I sued North Carolina, saying, well, it turns out if Section 5 wasn't a rationale to draw Bobby Scott's district, if it wasn't a rationale to support drawing the state legislative lines in Virginia, if it wasn't a rationale to draw to gerrymander blacks into two districts in North Carolina, then I guess it wasn't a rationale and I sued and I won those cases in the US Supreme Court. It led to the creation of additional black districts and additional Democratic seats in both states.

[Kate Shaw]

So I guess when you're thinking about the prospect of future litigation, Justice Kagan, to dissent, said, today's decision makes Section two a dead letter. Justice Thomas seemed to enthusiastically agree, saying even though he would have said no challenge to redistricting should ever succeed, this decision basically put an end to what he called the disastrous misadventure. What does this decision do to section too? And relatedly, how does that interact with partisan gerrymandering, which seemed to be both part of the Court's reasoning and also what it envisioned to be the future of American democracy?

[Mark Elias]

Yeah. So first of all, I just have to say, because you guys will appreciate this, you've got Justice Alito saying, we didn't do anything here. This was just like nothing. And then you have. Justice Thomas was like, thank God we over. Thank God we did this.

[Kate Shaw]

Speaking of Dobbs. Right. The guy can't keep it under wraps. He's like, no, this is what we're doing, team.

[Mark Elias]

Like they did. They didn't work that out just like between them. Look, I think for Section 2 litigation, it's going to be virtually impossible to bring Section 2 cases successfully because in order to do so, you're, you know, you're going to have to say, you're going to have to meet the political objectives of the legislature. So effectively, what this means is that if you want to bring a section case in Alabama on behalf of black voters, you need to draw a map in which the black voters vote Republican, which the idea that we are hinging minority voting rights on a partisan outcome is an absolute catastrophe and insult. I mean, I can't use words strongly enough. So I think that Section 2 will no longer be a vital tool.

[Kate Shaw]

Like you might as well require plaintiffs to show that the tooth fairy is real just while you're at it.

[Mark Elias]

That's right. So I think that the, I think that the, the two tools, or the two things that remain out there is, number one, partisan gerrymandering, which conservatives have taken from a necessary non justicable evil. Right. We don't like it, but geez, we, the Supreme Court are powerless to do anything about it. We looked for a test and we just couldn't come up with it. It's the one thing that was just too, it was too complicated for us.

[Kate Shaw]

But Robert's Right.

[Melissa Murray]

Remember, in Rugo does say distasteful, maybe worse. He is very explicit about the disapproval. But sorry, Mark, you were to say fest forward to this.

[Mark Elias]

Now they have turned it into a

[Melissa Murray]

positive good, a constitutional entitlement at the highest value. In fact, it is in fact now

[Mark Elias]

a traditional district criteria that we ought to value in the process. So that's going on. But that doesn't mean that states, state courts will do that. And so I think that there's going to be a lot of attention to state constitutions and state, state processes around partisan reducing. And then the second, which you haven't mentioned is there is still an inherent tension. And this was, this goes back to the cases that I brought after Shelby County. There is still this inherent tension between the intentional discrimination line of cases, the racial gerrymandering line of cases and this because, like, does anyone think that when Republicans are going to draw a map, you know, they're not shuffling black voters based on their race. I mean, of course they are like they don't want Democrats in their districts, but like, what they really don't want are black Democrats in their district. And if that sounds weird to people, like, we were able to prove that in the post Shelby county litigation. We brought where you looked at these neighborhoods and it was a professor from Stanford who did this analysis. I can't believe I'm blanking on his name. Roden, Jonathan Roden, I think, did this analysis and he plotted it out on graphs and you'd look at these neighborhoods and there'd be like a group of, let's just call them white liberals. Okay, but good Democrats, but white next to a neighborhood of black Democrats. And the Republican legislature was taking the white Democrats, not the black Democrats. And you know that in the south in particular, that is going to be a dynamic that is gonna leave them open to those challenges. Now the question is whether under Alexander, yet another case where they kind of like, you know, tried to limit this, whether they're gonna say, well, that's okay, you know, it's okay if you are intentionally discriminated against black voters in that way.

[Kate Shaw]

Way.

[Melissa Murray]

Well, whatever they're going to do.

[Mark Elias]

Sorry if that was very wonky.

[Melissa Murray]

No, but I mean, I think that sort of the point is that they have not resolved all ambiguity in this incredibly complex body of law, nor have they foreclosed all possible avenues. Now, I wouldn't put it past them to do that down the road. But you're saying that the evidence of even, you know, even if they do impose, if they have imposed an intentional discrimination requirement. There may be enough evidence to actually succeed in making out those claims in future litigation. And we know enough to know that you, Mark Elias, are going to be dogged in bringing any bringable and winning any case out there that can be won.

[Mark Elias]

So I want to, I want to add.

[Melissa Murray]

Yeah. If there's any note of hope that you can leave our listeners with.

[Mark Elias]

It's not, it's not a note of hope. It's actually a note of where we are.

[Melissa Murray]

Okay, we'll take that.

[Kate Shaw]

I'll take that. Yeah.

[Mark Elias]

So the, the lawsuit that challenged the Louisiana map was in fact a racial gerrymandering challenge. Right. The Supreme Court didn't have to decide this question. No, the Supreme Court was not asked to decide this question. The Supreme Court ordered re argument because they wanted to decide this question. So there's a lot of debate right now. And I know the New York Times published some papers involving the shadow docket, but there's a lot of debate about this calling balls and strikes umpire thing. This was a case that nobody asked the Supreme Court to decide, and the Supreme Court ordered the parties to re argue it, to decide it. And that is a procedural piece of this that I don't think has gotten enough attention. It is the only other instance in my little area of the woods. But you guys are the experts that where I have experienced this with Citizens United, where literally what the Supreme Court was asked was whether or not pay per view movies on cable systems were covered by the campaign finance laws. That's literally the question that was posed to them. And instead of answering that, they ordered the parties to answer a different question, to brief and argue a different question, which led to Citizens United. And it feels like like the conservatives are giving up even the pretense of we are just deciding the thing that is litigated before us. And I think that's really. That's like another layer of insult to this injury and another threat to where this court will go if they can just not just pick and choose the cases they want to hear, but actually then pick and choose cases they weren't asked to hear.

[Kate Shaw]

Yeah.

Well, Mark, we know today is a super busy day for you. We so appreciate you taking the time to speak with us and to provide both our listeners a dose of reality and hope. So thank you so much, Mark.

[Mark Elias]

Thank you.

[Leah Litman]

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[Kate Shaw]

So we are going to spend, as promised, just a little bit more on the reasoning, such as it is. As Mark kind of suggested, what Justice Alito wrote in this opinion basically is if a racial community consistently votes with the party, then it's okay to deny that racial community political representation because that's just part of and gerrymandering and it's awesome. The reasoning used to justify this requirement is that a plaintiff, in order to succeed in a Section 2 challenge under the Voting Rights act, has to show it was both possible to draw a map with an additional district for minority voters to elect the candidate of their choice and a map that retained the same partisan composition as the original map. If the state was trying to do partisan gerrymanders, kind of means racial minorities could have an additional district as long as they selected the same candidate that would have won in the state's initial maps. That's not a political opportunity district. But again, as Mark was saying, basically this says minorities, you can have your own district if you vote Republican. Right.

[Melissa Murray]

And the idea of a political opportunity district is one that I think the Court is pretty clearly intending to deal a death blow to. That's not, that's not actually something that a statute requires or even permits legislatures to pursue in the way that we have understood political opportunity districts, which is kind of one of the sort of sneaky and cynical things about the opinion that Mark was alluding to, that it really does completely upend Section 2 jurisprudence and pretends that it is not doing that. So as Mark I think mentioned, but maybe we'll underscore it for another minute. It's an anti Democratic decision. It has anti anti democratic reasoning. And it, the reasoning is basically that anti democratic behavior and in particular kind of partisan gerrymandering is okay. It is legitimate. It is indeed a constitutional right. So let me just quote from the opinion here. In considering the constitutionality of a districting scheme, courts must treat partisan advantage like any other race neutral aim, a constitutionally permissible criterion that states may rely on as desired. It also identified as a significant development that the Court's VRA jurisprudence had to take into account this Court's decision in Rucho v. Common Cause. So again, Ruccio is a decision that only seven years ago said that federal courts are not going to intervene to stop partisan gerrymanders, but the political system should respond, could and should respond in other ways. And that in any event, partisan gerrymandering was distasteful, just not something that courts could actually police or superintend. And we have something wildly different on the page in this opinion.

[Kate Shaw]

Yeah. Here's what Alito had to say about Rucho. Quote, the upshot of Rio was that as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting. That's not what Rucho said. It just said non justiciable federal courts can't remedy them. Not that they're consistent with the Constitution, much less something state legislatures are so entitled to do. They get to do other illegal, potentially illegal things in the process. And yet the Supreme Court injected partisanship and partisan gerrymandering into all aspects of the legal test for showing Voting Rights act violations. The jingles test, that is to establish a Voting Rights act violation, has three steps. At the first step is where Justice, Justice Alito said plaintiffs have to show their alternative map would achieve the same objectives, including partisan objectives. States Would. At the second step, Justice Alito said plaintiffs must control for party affiliation. And then the kicker, the third and final step, which is about the totality of circumstances. He says courts must focus on one thing, quote, intentional present day voting discrimination, end quote. Even though the Voting Rights act was amended so that the law did not just prohibit intentional discrimination. And the Court has also made proving discriminatory intent impossible, which was basically the Texas redistricting case, where DOJ told Texas go after majority minority coalition districts based on the legally incorrect claim that the Voting Rights act prohibited them. And the Supreme Court said that's not sufficient evidence of intentional racial discrimination.

[Melissa Murray]

Now, Alito maintained that he wasn't overruling any of the Court's precedents. He was just kind of updating them, giving them a makeover, which honestly is very consistent with both originalism and textualism, which are all about updating statutes to take into account subsequent developments in the world.

[Kate Shaw]

Oh, yeah, right up there in Justice Scalia's reading law. You know, I'm pretty sure that's like the first entry. It should be, you know, the makeover was more like Kris Jenner's recent facelift. Not great. But Justice Kagan, you know, said, what the majority gives us today is not an updated framework. It is its own thing, deserving of its own name, which she suggested. The Calais contrivance.

[Melissa Murray]

I think the Clay contrivance is good. I like it. In, you know, other Alito kind of reasoning that we should highlight. He wants to join John Roberts in proclaiming that racial discrimination is essentially over. So he writes, quote, vast social change has occurred throughout the country, and particularly in the south, where many Section two suits arise. He also says the Robinson Court also relied on the sordid history of intentional discrimination by Louisianan officials in the decades before the Voting Rights Rights Act's passage. It cast aside as irrelevant the lack of evidence that black voters have faced intentional discrimination in recent years. That analysis had its priorities backwards. The 15th Amendment, which the Voting Rights act enforces, is not designed to punish for the past, but works to ensure a better future. The focus of section 2 must therefore be on current conditions, not on decades old data relevant to decades old problems. Once again, originalism. We figure out what the 15th Amendment means by looking to evidence in the past, like six to 12 months, that's original.

[Kate Shaw]

I am just like, clawing my face off because Section 2 suits rely on current data because they measure the current extent of racial polarization, extent of residential segregation. Who cares, right? Justice Alito just pretends otherwise. And you Know, the passage that Kate read from the Clay opinion sounds exactly like Shelby County's infamous pronouncement that things have changed dramatically in the south, which Justice Alito quoted in Calais. He just thought that slapped and had aged amazingly. Justice Alito also said that the Constitution really only allows there to be remedies for intentional racial discrimination laws or policies that have the effect of disadvantaging racial minorities. Those are basically cool. So he writes, quote, the focus of Section 2 must be enforcement of the 15th Amendment's prohibition on intentional racial discrimination. While that interpretation, that is his interpretation of the Voting Rights act does not demand a finding of intentional discrimination. It imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred. End quote.

[Melissa Murray]

First of all, obviously we call BS on this claim that the interpretation does not demand a finding of intentional discrimination. That's exactly what he is requiring. Did you also catch his kind of casual reference to the, quote, limited authority that the 15th Amendment confers?

[Kate Shaw]

Yeah, of course. Of course. Like he just goes out of his way in this opinion to declare Reconstruction ain't no thing. Right. Didn't really allow Congress to do anything. No biggie.

[Melissa Murray]

Indeed. And that kind of sort of minimizing Congress's role, aggrandizing the Court's role sort of is energy that permeates this opinion. So it pretty clearly does something that Shelby county maybe implicitly did but didn't explicitly do, which is extend this City of Bernie v. Flores decision, that just wildly judicial supremacist opinion that says we courts, not really you, Congress, get to decide what the Constitution means. And Here are the 14th and 15th amendments. And it basically is doing that, proclaiming its own supremacy in deciding what the 15th Amendment means in the course of overruling Congress's decision about how to enforce Reconstruction, which I guess I've forgotten, but I thought it was Congress and not the Court that in the Constitution was given the power to enforce force the Reconstruction Amendments. But I must be Congress is a cuck.

[Kate Shaw]

Constitution is for cucks. Congress is a cuck. Right. Justice Alito just declares.

[Melissa Murray]

He sure did.

[Kate Shaw]

Things are going to be what they're going to be.

Yeah.

[Melissa Murray]

Justice Kagan, of course, is speaking truth to power summarizes the Court's reasoning as availing itself again of the tools used before to dismantle the Voting Rights Act. Untenable readings of statutory text made up and impossible to meet evidentiary requirements, disregard for President and disdain for Congressional.

[Kate Shaw]

A few just short additional notes before we go. One is just to reemphasize resist and strongly push back against efforts to minimize this decision that suggest could have been worse. They didn't strike down the Voting Rights act, or the Court even said compliance with the Voting Rights act constitutes a compelling interest. No, that's how Alito attempted to spin this. Indeed, that's how he characterized his own ruling. My preferred framing would be something like a judicial coup or a revolution against multiracial democracy and for white supremacy. You know, second is this decision has to be understood as part of a trilogy of decisions in which the Court effectively ended the Voting Rights act, the law that made the country into a multiracial democracy. Justice Kagan characterized it as part of a set that included, as we noted, Shelby county versus Holder. After that came the 2021 decision Brnovich versus DNC, which was about how Section 2 applied to voting precondition condition challenges, you know, challenges to laws that are about whether people can vote or their votes will be counted. The Court interpreted the law, you know, by making it much harder, if not impossible, to challenge voting conditions. Justice Kagan's dissent cites an article by Professor Ricasen showing that since Burnovitch, there have been zero, zip successful challenges to voting preconditions under Section two. And the last piece, as Justice Kagan describes in her dissent, is section 2 as applied to redistribution. Right. That's what this decision takes. Aimed at. You want to read a few more passages from Justice Kagan's dissent or anything else?

[Melissa Murray]

Let me just say maybe one more thing. So I think in addition to connecting this opinion to the other VRA opinions the Court has handed down, I think what Mark said about Citizens United is actually also really important in that this is both a case where the Court overreached really badly in just deciding to change a question in order to give itself an opportunity to supply an answer it wanted to give, but also because I think Citizens United, I think, has had kind of, in the imagination, kind of remarkable staying power. It still polls at like 75 or 80% of Americans disapprove. There are constitutional amendment efforts sort of underway to this day. And I think that. That this opinion, too, should have that kind of effect. And I think that what you said about resisting minimization frameworks is. Is just so important. And I think that linking this opinion to, again, both VRA and Citizens United, I think is critical. So, yeah, maybe let's end with a couple more lines from this.

[Kate Shaw]

Well, so one more, since you said that, and also linking to the Texas redistricting decision, because what the Court is saying is you can use race in partisan gerrymandering, but you can't use race to comply with a Voting Rights Act.

[Melissa Murray]

Yes.

[Mark Elias]

Yeah.

[Kate Shaw]

You have to.

[Melissa Murray]

It said both of those things. Yes, yeah, absolutely. All right, so that actually is the story of what happened in Calais, except no alternative explanations. Okay, so to end with a few more Kagan lines, she says, I disagree. Dissent. The Voting Rights act is, or now more accurately, was, one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our nation's history. I dissent because the Court betrays its duty to faithfully implement the great statute Congress wrote. I dissent because the Court's decision will set back the foundational right Congress granted of racial equality in electoral opportunity. I dissent. And maybe one more. Okay, so the VRA was born of the literal blood of Union soldiers and civil rights marchers. It ushered in on inspiring change, bringing this nation closer to fulfilling the ideals of democracy and racial equality. And it has been repeatedly and overwhelmingly reauthorized by the people's representatives in Congress. Only they have the right to say it is no longer needed. Not the members of this court. I dissent then, from this latest chapter in the majority's now completed demolition of the Voting Rights Act.

[Kate Shaw]

If those quotes didn't capture it like this is the anti democracy Court, and if this decision doesn't kind of get people to realize that Supreme Court reform has to be part of democracy reform, I'm not sure what would. Please send this podcast to your local democratic representative, because what this decision shows is Congress can enact all of the voting rights protections that it wants, and it won't matter if this Court nullifies them or invalidates them.

[Melissa Murray]

And maybe just one last asterisk, which is that if and when the Chief justice writes the opinion for the Court in the birthright citizenship case saying the President cannot nullify the 14th Amendment Amendment by trying to nuke birthright citizenship. Remember in sort of all the celebration of John Roberts institutionalist, that John Roberts gave this opinion to Sam Alito. He joined the opinion, and the opinion nullified the 15th Amendment and the law that made this country into a multiracial democracy. And try to bear that in mind and let it temper your celebration of that opinion if and when John Roberts pens it.

[Kate Shaw]

Indeed. And look, we are only at the end of April and wow, we are already getting really bad decisions, which means by the time we are at the end of June, help us. And if you would like to, I don't know, participate in our processing and coping of a little catharsis with us. A little catharsis, a reminder that we will be in New York City at the end of June. You can catch us live at the historic Gramercy Theater on June 20 in New York City. Tickets are on sale now. Grab them while you [e-mail] SL events.

[Melissa Murray]

All right, and we'll be back in your ear holes for a regular episode on Monday morning. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jennifer Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production. And thanks to our digital team, Ben Heathcote, Johanna Case, Kenny Moffatt and Eric Schutt, our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube. Strict Scrutiny Podcast so you never miss an episode. And if you want to help other people find the show, please, please rate and review us. It really helps.