B (2:43)

That's right. So almost immediately after the decision came down, Louisiana actually suspended its ongoing US House elections. It announced that it's going to start them up again after it redraws the map to make them wider and more Republican.

A (2:57)

And they're going to change it to make more Republican districts. Does that mean they're going to change the map to create whiter districts?

B (3:05)

Yes. What the law said before Calais. So it wasn't every state had to draw more majority black or majority Latino districts. It was generally states where there were two things that were present. One is residential segregation. So just like black people tended to live in some neighborhoods, white people tended to live in different neighborhoods. The second factor is what's called racial polarization. So white people vote for Republicans, black people vote for Democrats. That's a racially polarized electorate. And what the supreme Court recognized in a 1986 case is that when you have those two things present at the same time, it tends to lead to whichever racial group is in the majority controlling all of the seats or significantly more seats than they should based on their population.

C (3:57)

Let's just assume that the court was correct in finding that there was severe polarized voting in this case.

D (4:03)

If.

C (4:04)

If you use the district court's interpretation, you could call it correct. But what the district court interpreted polarized voting as, your honor, was simply if more whites vote for whites and more blacks vote for blacks, then you automatically have polarized voting.

B (4:19)

They don't even need to have any nefarious intent. It's just that they're going to pass maps that serve their own interests. And if white people are in the majority, and if white people all belong to one party, they're going to pass maps that benefit that party, and you're gonna wind up having the black people in the state cut out of representation. And so the supreme court interpreted the voting Rights act in 1986 to say, no, no, no, you can't do that, at least in those states. Sometimes there will be a requirement that they have to that those states have to draw an additional majority black, additional majority Latino. I mean, it could conceivably be another racial group. You know, if you had a state that was majority black and the Same phenomenon was operated to prevent white people from getting under the old rules. Theoretically, you know, you could have a court order saying you have to draw more majority white seats. But the idea is you don't want to have one racial group that is cut out of power, because that's just what tends to happen when you have residential segregation and racial polarization.

A (5:21)

Okay, so Louisiana is going for it. What about other red states? What about blue states? Are they all getting in on this?

B (5:27)

So my honest answer to that is I have to be a little cautious. We are recording this on Monday morning, and things are moving so fast that by the time this episode airs, my answer may have changed. But as of right now, there are four red states. Louisiana, as you mentioned, plus Tennessee, Alabama, and probably Mississippi, which look likely to redistrict before the midterms. Georgia has said it will not move before. Georgia's governor said that that state will not move before the midterms. So that's good news for Democrats. There are some states where Democrats could have potentially passed retaliatory gerrymander to try to counterbalance those four states I just mentioned. Some states that have been under discussion where that could happen are New York, Colorado, Oregon, Maryland, and New Jersey. But I don't believe that any blue states have formally begun the process of redistricting yet. And in some of those states, there are constitutional provisions or other things that need to be worked around in the same way that we previously saw in California and Virginia.

A (6:34)

The timing here cannot be ignored. I mean, we've had this story ongoing this whole year of various states trying to redraw their maps to get Trump a few more seats, or to counter Trump trying to get a few more seats.

C (6:48)

What Texas is doing, actually, we are

B (6:51)

drawing districts to provide every voter in

C (6:54)

the state the opportunity to cast a

B (6:55)

vote for the party in Canada of their choice.

A (6:58)

They fired the first shot.

C (6:59)

Texas. We wouldn't be here had Texas not done what they just did.

D (7:04)

Virginia created a plan that was wholly responsive to the actions of other states.

A (7:09)

I am going to issue a proclamation

B (7:11)

to convene a special session of the Florida legislature to do redistricting of congressional map in the state of Florida.

A (7:20)

And then the Supreme Court enters the chat and says, here's a tool to do even more of what you're doing. Red states.

B (7:26)

Yeah, no, that's exactly right. I mean, the Supreme Court has been enabling this for a good while. So back in the 1980s, there was a case called Davis v. Bandemeer. I don't think the Supreme Court has ever actually struck down a partisan gerrymander before, but essentially what the court said in Davis is we're not striking down these maps.

C (7:46)

What would be the most fair thing in your view? Is it straight proportional representation? No, we are, again, we are not advocating proportional representation.

B (7:53)

It was some Indiana maps that were at issue in Davis. And of course, we're not striking these maps down, but states, be careful, because if you gerrymander too much, we might strike down your map someday. And that was kind of the approach that the court took for about 30 years. Is it never actually struck down a partisan gerrymander, but it always left open the possibility to watch out. If you do something too crazy, we might come for you and we might say that that map is unconstitutional. And then in 2019, there was a case called Ruccio, and Ruccio kind of said the quiet part out loud.

C (8:34)

Each case unelected and unaccountable. Federal judges would be deciding whether Democrats or Republicans should have more or less political power in each affected state. Now, if the Constitution said that was our job, we would do the best we could, but it doesn't anywhere.

B (8:50)

If you are the Republican party and you control the Indiana state legislature and you can draw a map that elects zero Democrats, bully for you allowed to do that. Now, the federal courts play no role whatsoever in partisan gerrymandering. And that shift from merely holding out the possibility that someday, you know, a partisan gerrymander might be. Might be struck down to stating definitively nope, never, ever, ever, ever going to do it is, I think, what set off the gerrymandering wars that we're in right now. That's why we've potentially entered a world where every two years, every time control of a state legislature flips, they're going to redraw their map. So, you know, I live in Virginia. We now have a 10 to 1 map. If Republicans gain control of the Virginia state legislature, I imagine they'll draw a 10 to 1 map in the other direction. And that's just going to be our future.

A (9:46)

It doesn't seem like very healthy democracy kind of vibes out here, Ian.

B (9:53)

No, it's terrible for democracy. You know, I mean, yeah, I mean, you are right that something has gone horribly, horribly wrong with our democracy. You know, and this is a consistent pattern with this Supreme Court. You know, I'm working on a piece right now about how, like, the Supreme Court is not very good at knowing what it needs to shut the fuck up. And, you know, and it's not just in the redistricting context, like the same thing happened in the campaign finance context. So you've probably heard about Citizens United, the case from maybe 15 years ago, saying that, like, billionaires could just throw money and corporations could just throw money. You know, Citizens United was mostly about corporations, but like classic, before Citizens United, if you were a billionaire or if you were a corporation and you wanted to find some way to just throw money at an election, there were ways to do it. But the reason why people didn't do it is or didn't do it as aggressively as they do it now is. The same phenomenon is that the Supreme Court still held open the possibility that we could have campaign finance laws, and if you did something really, really bad, you might get in trouble for it. And then in Citizens United, the Supreme Court said, you know, made it very, very clear that it didn't believe in campaign finance regulation and that wealthy donors have free reign to do almost anything they want to do.

C (11:13)

The Court's First Amendment analysis is based on the metaphor of an open marketplace of ideas. But the Court never actually engages with the reality of how that marketplace operates or indeed, with virtually any practical concerns whatever.

B (11:30)

And that's what opened up the floodgates. A lot of the time. The thing that was keeping our elections, you know, humming along and, you know, not operating this way, where it's a total free for all, wasn't necessarily that there was a specific wall that prevented things from going haywire. It's that people were afraid of the possibility that if they push too hard, the courts would push back at them. And what the Supreme Court has done over and over and over again, it did in the Trump immunity case, where it said that Trump is allowed to send the Justice Department to arrest his enemies. And then, you know, you have the Jim Comey prosecution. I mean, this court does not know when to shut the fuck up. It does not know when it's better to leave a little bit of ambiguity in the law so that people don't go. Don't go buck wild.

A (12:25)

No more cursing. When we're back on Today Explained, we're going to hear from one of the ACLU lawyers who was on that Clay case at the Supreme Court. Support for the program today comes from Found. Any small business owner can tell you that managing your finances can get chaotic fast. A Bank account here, QuickBooks there, plus taxes and invoicing tools layered on top. Before long, you're juggling costly software, falling behind on your books, and unsure where your business really stands. That's where Found says they can help. Found says they can cut through the clutter by bringing everyone into one platform. Banking, bookkeeping, invoicing and taxes all in one place. That means no more paying for multiple subscriptions or dealing with outdated, clunky tools. Found even says that you can send invoices for free and pay contractors, all from a single app. Foundation says that they're built to help you take back control your business finances so you can focus on what you actually love running your business. You can take back control of your business. Today you can open a Found account for free@found.com that's f o u n d.com found is a financial technology company, not a bank. Banking services are provided by lead bank member fdic. You can join the hundreds of thousands who've already streamlined their finances with Found. Support for the show comes from Chime. Banking can sometimes feel like you're playing a game of dodgeball. Love dodgeball. Doing everything in your power to not get hit with overdraft fees, minimum balance requirements and monthly fees. Don't love that. Chime wants to help. They say that they're approaching things differently and changing the way people bank. Chime says they are offering you the most rewarding fee free banking banking built for you. Why pay to get your own money? They're not looking to charge you overdraft and or monthly fees and they have thousands of fee free ATMs ready to use built for you. Not the 1%. Take that 1%. Chime members can even benefit from up to $1,150 in annual rewards. Fee free plus direct deposit unlocks the most rewarding way to bank at Chime. Chime says they're not just smarter banking, they're the most rewarding way to bank. You can join the millions who are already banking for free today. It just takes a few minutes to sign up. Head to chime.comexplained. that's chime.comexplained.

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A (15:03)

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D (16:12)

This is today, explained Sophia Lynn Lakin, director of the ACLU's Voting Rights Project.

A (16:20)

Okay, and does that mean you were involved in this case at the Supreme Court, Louisiana versus Calais?

D (16:26)

That's correct. I was one of the attorneys sitting at council table in October.

A (16:32)

And what was the vibe you got back in October? You're like, oh, here we go.

D (16:35)

The justices certainly had a lot of questions. And this particular outcome that we are seeing right now is one that came up during oral argument in part because the Solicitor General of the United States did raise this, or the lawyer for the Solicitor General's office did raise this in their briefing. And that argument as what they termed it as a tweak or an update, a modification to the existing law and the existing framework that we've been using for decades that the Supreme Court affirmed just two years at the time prior in a case called Allen vs. Milligan. But it's really an evisceration of Section 2 of the Voting Rights Act. Not so much as they've been calling it an update.

A (17:29)

All right, you guys were at the Supreme Court in October defending the Voting Rights Act. The Supreme Court, as you see it, just eviscerated a crucial component of the Voting Rights Act. Louisiana, at least, is trying to stop an election in the middle of an election to redraw the maps. What does the ACLU do now? What's the plan?

D (17:49)

What's the plan? We don't think this is legal. Surprise, surprise. And certainly not only do we not think that the governor has no authority to do this, obviously we're worried greatly about the rights of voters who have already cast their ballots and the confusion and chaos and disruption this is already going to cause. And so there was already a lawsuit filed. There will be more. And we are in court challenging that. We're hearing indications that other states are interested in plowing forward following Louisiana's lead here. Obviously Florida had already had the special session planned. Mitzvah, Mississippi has one that they're contemplating as well. It has already been announced. So unfortunately, we're living in a time when you've got politicians who are very, very willing to take whatever opportunity that they have to basically accrue power to themselves. And that's unfortunately really, really disappointing to say the least.

A (18:50)

We're also living in a time where, let's just say, black Americans don't vote as a block. We saw story after story after the 2024 election of Black voters abandoning the Democrats and voting for Donald Trump. So how are you guys at the ACLU right now thinking about these partisan gerrymanders which end up being racial gerrymanders which the Supreme Court saying that the United States legislatively doesn't need to protect anymore?

D (19:19)

Look, gerrymandering, gerrymandering in whatever form and whoever it's done by is not a good thing for a country that likes to say it is a democracy. We want voters to be able to have an ability to hold their political leaders accountable, right. If they do things, if they make policies that are bad for their communities or bad for their well being or bad for their economic opportunity, you want to voters to be able to speak to that right at the ballot box. And gerrymandering really turns that on its head. And you get the politicians, you've, I'm sure heard this many times. And I will say it again. You know, politicians shouldn't be choosing their voters. Voters should be choosing their politicians. And that's, you know, gerrymandering flips what we should be seeing in a democracy on its head.

A (20:21)

But aren't we also gerrymandering districts at the same time to preserve minority votes? And haven't we been doing that for decades?

D (20:32)

I would not say that in the least. Right. That is the false equivalency that people are calling it when they're celebrating this Louisiana versus Kelly decision. Right. What voters of color have been asking for and what the Voting Rights act had been protecting is just an opportunity to participate on equal terms in that political process and bring them up to basic fairness.

C (21:02)

Let us march on ballot boxes until brotherhood is more than a meaningless word at the end of a prayer. But the first order of business on every legislative agenda, let us march on ballot boxes. But even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life.

D (21:43)

And that is what is being, I think, undersold here or completely perverted. When people talk about what's going on with this ruling, with what vote dilution means in diminishing voters of color and what we've all been trying, the project of the Voting Rights act for the last 60 years.

A (22:03)

But the problem we have in this country right now is that not everyone sees it that way.

D (22:08)

That is unfortunately part of the problem. And one of the things that certainly we at the aclu, partners across the board, have been trying to yell at the top of our lungs, right? How do we shift that narrative? How do we get people to understand that you don't cure racism or racist. The effects of centuries of Jim Crow and structural inequality and all the things that we aspire to? And that there's a promise of the Reconstruction Amendments is the promise of our country. It's the promise of being here, calling ourselves American. Right. By ignoring problems in order to fix them, you need to wrestle with them in order to bring us to a better place. And that's the unfortunate place that we are. And it's the work that we have cut out for us. As we take this time and this moment to think about, how do we. I think this is really a moment, a call to everybody of conscience to renew, to have a renewed civil rights movement and move the ball forward again.

A (23:16)

That sounds nice. It doesn't seem to be happening yet, but who knows? Maybe things will get so bad that we get there. In the meantime, what we're left with is this tit for tat. Texas redraws, California redraws. Missouri redraws, Virginia redraws. When you see Virginia and California redrawing, do you feel as badly as you feel when you see Texas and Missouri redrawing?

D (23:39)

This is not good for democracy. This is not good for voters who want to have a say in what happens at their community, not just at the national federal level. But I do think it's important to understand why this started in the first instance. What precipitated this kind of race to the bottom when it comes to gerrymandering in this tit for tat kind of way? And how did we get here in the first place, this sort of very brazen, blatant attempt to grab power? And that started with President Trump pushing states just to open this Pandora's box? With Texas, I won Texas.

C (24:20)

I got the highest vote in the history of Texas, as you probably know, and we are entitled to five more seats.

D (24:28)

And, you know, seeing California respond in kind and other states in kind, I think that is a very foreseeable consequence when that door was opened at the end of the day.

A (24:39)

So what. What does the ACLU see as its role in this race to the bottom?

D (24:45)

You know, we're going to continue to push back with every single tool that we have, including litigation. Obviously, there have been attempts to rein this in and get our Congress to actually take action here. You know, Congress has authority to act, and, you know, we need them to do so. And today, yesterday's ruling, or two days ago, now, Thursday's Wednesday's ruling removes any remaining excuse for inaction, I would say. So, you know, whether they will move, obviously, it's a question, but they certainly have a role to play in this. And, you know, we're going to be doing the same at the state level, pushing for state voting rights acts, pushing for provisions at the state level constitutions to try to do what we can to rein in the excesses that we anticipate coming from this ruling. And we're already seeing, you'll remember, certainly,

A (25:46)

Sophia, that there was a state, Indiana, that refused to redraw its lines, which is to say, you know, a red state that refused to redraw its lines. There are still members of both parties that say, you know, we are not gonna race to the bottom here. We want credible democracy for our voters. Do you think that's a sign that maybe one day when there's a different composition of the House of Representatives and the Senate in the United States, that maybe there's like, I don't know, a new Voting Rights act to make up for the fact that one of them just got gutted, that addresses this race to the bottom and maybe re enshrines some of the values of voting in this democracy?

D (26:31)

Well, I don't want to be a pessimist here. I want to be an internal optimist. And I am, and I want to say absolutely, yes. And the example that you have given with respect to Indiana, I think that was certainly a bright spot. But, you know, there were people in California, legislators in California, legislators in Texas, both of whom introduced bills in Congress while this was happening to say, hey, you know, this is a bridge too far. We need to start reining this in.

B (27:03)

Mr. Speaker, this is the moment to bring the senseless redistricting war to an end.

D (27:08)

You know, I think this is one of those moments. This decision from the Supreme Court is one of these moments where we're going to see, unfortunately, a fallout from this that I hope people are appalled by and will look to their own conscience about this and say this is not the country we want to be and take action.

A (27:37)

Sophia Lynn Lakin, eternal optimist at the American Civil Liberties Union earlier in the program you heard from Ian Millhiser, unrepentant pessimist@vox.com Dustin de Soto and Kelly Wessinger produced for us today. Amina Al Asadi, Gabriel Dunatov, David Tadashore and Bridger Dunnigan were here to help. I'm Sean Ramis for him and this is Today Explained.

E (28:18)

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