E (18:32)
All right, that is it for the left and the right are saying, which brings us to my take. So the dynamics of this case for me are pull your hair out levels of frustrating despite both sides complicating their arguments with pedantic details, the issue at the center of this case is simple. Section 2 of the Voting Rights act is not long. You can go read it yourself with a quick Google search if you want. It prohibits a political process that is not equally open to participation by members of a certain race or skin color. The 15th Amendment, which is also at play here, is all of 2 sentences long quote 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. The Congress shall have power to enforce this article by appropriate legislation. End quote. In Louisiana, one third of the state is black. Based on a robust collection of data, we know these two relevant things about the state's electorate. One Black voters in the state often vote for black candidates and Democrats and two White voters. Even Democrats are less likely than black voters in Louisiana to vote for black candidates, even Democratic ones. So Republicans who control the Louisiana state Legislature and thus its districting process did something simple in 2022. They cracked and packed areas where a lot of black Louisianans live and created a congressional map that had one majority minority district and five districts where whites are the majority. They got their desired result. Five districts elected Republican officials, all white by the way, and one district elected a Democrat who is black. Again, none of this is complicated. Little of it is contested. Voters sued, arguing that the map self evidently diluted the power of black voters, or to put it in the terms of section 2, closed the political process off to a class of people based on race by diluting their vote. They won their case, which means they proved in court that the gerrymander had the effect of violating section 2. Whether the map makers intended to racially gerrymander or not, intent doesn't matter which Congress made explicit with an amendment to the Voting Rights act in 1982 too. Still, up to this point, everything is simple. Republican map makers diluted black votes in a state where the proportion of black voters would suggest at least two congressional districts would be competitive for Democrats and majority black. The state's legislature instead produced five non competitive Republican seats and one majority black Democratic held seat. The Gingels framework from a previous Supreme Court case that is used to determine A Section 2 violation has three one that the minority group in question is large and compact enough to form a majority in an additional district 2 that the minority group is politically cohesive and 3 that the majority votes as a bloc in a way that usually defeats the minority's preferred candidate. These three elements are increasingly hard to satisfy because black Americans are less segregated or compact now than they used to be, and and because their voting preferences are less predictable or politically cohesive than they used to be. To be clear, these are good things. And for these reasons, and contrary to rhetoric from conservative justices, Section 2 cases are increasingly rare and increasingly unsuccessful. They're only upheld when egregious racial gerrymanders satisfy all three of the above components. And that's exactly what we have in Louisiana. The next step is where things get a little complicated. A court told the state to redraw its map, and this time Louisiana decided to create a compliant map that still protected incumbent Republicans like House Speaker Mike Johnson. Its solution was to draw a second majority black district into Louisiana's map. Then a group of non African American voters sued, saying the new map violated their constitutional rights by being a racial gerrymander, a kind of racial gerrymander against the racial majority of as the liberal justices argued laboriously and convincingly, but perhaps futilely, the remedy here had to consider race because the initial violation was based on race. Calling foul here is akin to someone following you around with a bullhorn that blasts music every time you try to speak. And when a court orders them to stop stalking you with a bullhorn that drowns out your speech, the bullhorn wielding stalker claims that they are being silenced and their free speech rights are being violated by because the court is silencing them. It is an unbelievably, incredibly aggravating, circular piece of litigation. But it's where we are. Admittedly, the way the law protects voters rights does invite genuine complications. States are simultaneously being told that they cannot consider race while drawing maps, but also that the Voting Rights act demands they consider race while evaluating or remedying racial gerrymandering. At the same time, when voters of a particular race overwhelmingly vote for one party over another, it can be hard to test whether a gerrymander is targeted, targeting their race unconstitutional or their partisanship constitutional. This uneven framework creates problems exactly like Louisiana's. But that confusion doesn't justify throwing out Section 2, which has been remarkably effective. As NAACP attorney Jani Nelson argued before the court, Section 2 enforcement has led to less racial polarization in districts and fewer cases of its kind over time. That is less racial gerrymandering. In other words, the statute is accomplishing the goals Congress intended it to. And although members of the court, like Justice Kavanaugh, seem to think these protections have served their purpose and should expire, the threat it protects against remains present. Indeed, we are not somehow beyond the threat of racial gerrymandering. We are omit it. The reality of gutting or even narrowing Section two is that Republicans could and will gerrymander as many as a dozen Democratic held seats out of existence, several of which are held by black representatives who were elected in districts where a majority of black voters reside and probably before the 2026 midterms. The political outcome here is only relevant because it proves that gerrymandering affects fair representation. That affects all of us. But in this case it boxes black voters out of the system unfairly and unconstitutionally. Equally perplexing and frustrating is that the conservative justices all seem to want to weaken Section 2 in some way, but they each have very different ideas for how to do that, which made the oral arguments in this case clunky and disconnected. While the liberal wing of the court spent a lot of time inquiring about the practical implications of Section 2, Louisiana's solicitor general, Benjamin Aguinaga, spent a lot of time arguing unlikely hypotheticals to make it seem as if the downstream effects of narrowing section 2 would be no big deal. For example, he was pressed on the idea that weakening Section 2 would have a catastrophic impact for black voters in Louisiana. In response, he argued that the Republican legislature would hesitate to draw a six zero map in the wake of any such ruling because hundreds of thousands of Democratic voters have to go somewhere, and Republicans would risk drawing purple districts into existence. But overreaching actually is not much of a risk for Republicans in Louisiana. Aided by complex algorithms and advanced gerrymandering strategies, they will not have any trouble drawing a six zero map. An elections analyst from the New York Times did it pretty easily just this week, and you can bet your House Republicans are going to try. Similarly frustrating are the mental gymnastics I'm observing from conservatives about how this litigation is playing out. National Reviews Editors, for whom I have a great deal of respect, published an editorial headlined End Racial Gerrymandering. One might expect the editors to call on Republicans to stop cracking and packing black voters into single districts across the south, but instead they demand the Supreme Court solve racial gerrymandering by ignoring the problem. The editors write, quote, Section two never even mentions the drawing of district lines. It asks instead whether a state's political processes leading to nomination or election are not equally open to participation by members of racial groups who have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. In reality, every state's political system today is equally open, even if the outcomes of elections are often a disappointment to voters outside of the partisan majority. End quote Actually, an election is not equally open to voters if elected officials of one party are drawing district lines that explicitly and obviously cram voters of a particular race into a single district. I simply don't understand how someone can claim otherwise. This is of course a critique that applies to gerrymandering writ large, but legally it carries the most weight when applied to racial gerrymandering, which is the issue before the Court today. I'm not sure what's going to happen now. Most court watchers are confident that the Court will issue a 63 decision weakening section 2 in some way. I'm hesitant to make a prediction that runs counter to the observations of the court obsessed pundits, but I do think a 54 ruling preserving section 2 is still possible. With Kavanaugh and Roberts joining the liberal wing. I genuinely just have a hard time believing that the weight of the precedent here, which was affirmed by this court as recently as 2023, paired with the truly circular nature of Louisiana's argument, creates a decision that reverses Section 2, especially when the conservative justices are so divided about how to move forward. Whatever the outcome, it remains true that gerrymandering is a scourge on our democracy, and it's getting worse by the day. I would obviously prefer Congress to ban gerrymandering of all kinds, but that won't happen today. As a strident advocate for voting, it brings me no pleasure to say this. In a world where legislators can so easily pick their voters, even along obvious racial lines, it becomes hard to defend the value of participating in our system at all. The Supreme Court's Pollyannish view on what will happen if they leave mapmakers to their own devices leaves me deeply uneasy about our future and and my sincere hope is that they surprise us the same way they did the last time a case like this was before them. But I have to say I'm not optimistic. We'll be right back after this quick break.
