Cracking and Packing

Summary

What Trump Can Teach Us About Con Law

Episode: "Cracking and Packing"

Release Date: June 11, 2026
Host: Roman Mars
Guest Professor: Elizabeth Joh

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Overview

This episode delves into the mechanics and constitutional history of gerrymandering in the United States, focusing on the recent seismic shifts in voting rights law and redistricting, particularly stemming from recent Supreme Court cases. Professor Elizabeth Joh walks Roman Mars through redistricting basics, the evolution and current hollowing out of the Voting Rights Act, recent Supreme Court decisions (notably Louisiana v. Calais and the Alabama redistricting saga), the concepts of "cracking and packing," and potential paths forward for American democracy. The tone is conversational, urgent, and occasionally bleak, with flashes of dry humor and incredulity.

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Key Topics & Discussion Points

1. Gerrymandering Basics

[00:37–06:16]

• Definition & History: Gerrymandering is the drawing of electoral districts to advantage a political party, originating from Massachusetts governor Elbridge Gerry in 1812 (“salamander” + “Gerry” = gerrymander).
• Redistricting Process: Following the decennial census, states redraw districts to reflect population changes. Since 1929, House seats have been capped at 435.
• Constitutional Basis: Article 1, Section 2, and the 14th Amendment; plus the Elections Clause, which gives Congress broad power to regulate federal elections.

Notable Quote:

“Gerrymandering refers to the creation of a voting district that is deliberately drawn to advantage a particular political party...”
— Elizabeth Jo, [00:50]

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2. Cracking and Packing Explained

[07:08–08:14]

• Packing: Concentrating like-minded voters (racial, ethnic, or party) into one district to minimize their influence elsewhere.
• Cracking: Spreading out those voters across many districts so they can never constitute a majority, further diluting their voting power.

Notable Exchange:

"Is cracking and packing legal?"
— Roman Mars, [08:14]
“Well, that is a big question, and it depends.”
— Elizabeth Jo, [08:18]

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3. Partisan vs. Racial Gerrymandering

[08:18–13:16]

• Partisan Gerrymandering: Drawing districts to favor a party. The 2019 Supreme Court case Rucho v. Common Cause held that partisan gerrymandering claims present a “political question” and are nonjusticiable—courts cannot review them.
• Racial Gerrymandering: Drawing districts to dilute the voting power of racial groups. Addressed by different judicial standards and federal statutes.

Notable Quote:

“The political question doctrine means that there are some types of cases that the Court says, you know, it's better if the political branches like Congress deal with this issue rather than the courts.”
— Elizabeth Jo, [10:00]

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4. The Voting Rights Act: Rise and Erosion

[13:16–19:57]

• Sections 4 & 5 (Preclearance): Required jurisdictions with histories of racial discrimination to obtain federal approval before changing voting laws. Gutted by Shelby County v. Holder (2013), removing major federal oversight.
• Section 2: Bans any voting practice that results in (not just intends) racial discrimination. Amended in 1982 to make it easier for plaintiffs to demonstrate discriminatory results rather than intent.

Notable Quote:

“[Shelby County] is like throwing away your umbrella because you're not getting wet during the rain.”
— Roman Mars, paraphrasing Justice Ginsburg's dissent, [17:49]
“...the effect of the Koolaid decision is to gut the Voting Rights Act. It seems formally alive, but sort of functionally dead.”
— Elizabeth Jo, [25:14]

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5. Recent Supreme Court Cases & Their Impact

Louisiana v. Calais

[21:51–26:13]

• After Louisiana created a second majority-Black district (to comply with the Voting Rights Act), white plaintiffs claimed this was racial discrimination against them.
• The Supreme Court held that Section 2 claims now require proof of intent to discriminate, not just discriminatory results—rendering challenges almost impossible.
• Efforts to comply with the Voting Rights Act are now themselves potentially unconstitutional if race is considered.

Notable Quote:

“To succeed from now on, on a Section 2 claim, you need to show that the state intended to redistrict because of racial discrimination.”
— Elizabeth Jo, [24:29]

The Alabama Redistricting Saga

[26:56–32:57]

• Alabama repeatedly drew maps with only one majority-Black district (for a 27% Black population), flouting lower court orders.
• Supreme Court decisions and the so-called “Purcell principle” (courts shouldn’t change election rules too close to an election) allowed Alabama, and now other states, to gerrymander with impunity.

Notable Exchange:

"So if you're listening to this carefully, that's right, the voters voted with an unlawful map. That's trip one."
— Elizabeth Jo, [28:57]

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6. Supreme Court: Shifting Doctrine and Its Consequences

[32:57–38:23]

• Political Question “Escape Hatch”: No judicial review for partisan gerrymandering.
• Section 2 Now Unwinable: Requires almost impossible evidence.
• Purcell Principle Expanded: Courts shouldn’t disrupt elections close to voting—but states can still make late changes at will, which often benefit those in power.

Notable Quotes:

“In Calais ... Justice Alito, the author of the opinion, says partisan gerrymandering is, in fact, a legitimate state interest.”
— Elizabeth Jo, [34:08]
“You could do it with the majority. ... much easier than changing the Constitution.”
— Roman Mars, on Supreme Court “packing,” [49:18]

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7. Case Studies: Texas and California

[33:32–36:32]

• Texas redrew districts targeting minority and Democratic seats; courts blocked, but SCOTUS used Purcell to allow the map for the midterms.
• California (in response) scrapped its citizen-led redistricting commission, restored Dem-controlled mapping, and expects to flip five seats.

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8. Future of Gerrymandering and American Democracy

[36:32–47:02]

• Both parties now have incentive to gerrymander ruthlessly (erasing whatever norms or reforms developed).
• Options for reform depend on Congress, but major action seems unlikely.

Potential Solutions Discussed:

• At-large elections (eliminate districts entirely)
• Congressional ban on mid-decade redistricting
• Mandate for independent redistricting commissions
• Increasing House size
• Supreme Court reforms, including "packing" the Court

Notable Exchange:

"So, me too."
— Elizabeth Jo, on Roman’s hope that mass turnout could still overcome structural barriers, [52:05]

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9. Cynicism, Hope, and Political Remedies

[50:36–end]

• Both express frustration at the Supreme Court’s partisanship and the hollowing out of remedies for racial discrimination.
• Ultimately, they stress that real change depends on political—not legal—solutions: voting, organizing, and legislative reform.

Notable Moments:

“I think one of the things to keep in mind is ... It's an easy moment to be really, really cynical and think like nothing really matters. But what is actually going to overcome all of this is not cynicism, but actually working hard to make sure that some of these barriers are overcome.”
— Elizabeth Jo, [51:10]
“These advantages in these different states, in these different districts is not set in stone. And there's way more people that don't vote. That could change the election tremendously.”
— Roman Mars, [51:26]

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Memorable Quotes

• “The effect of the Calais decision is to gut the Voting Rights Act. It seems formally alive, but sort of functionally dead.”
  — Elizabeth Jo, [25:14]
• “Are they racist in their heart? Kind of nonsense.”
  — Roman Mars, [38:23]
• “It's a disaster.”
  — Roman Mars, [37:36]
• “It's like you can't bring a knife to a gunfight, I guess.”
  — Roman Mars, [46:07]

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Timestamps for Key Segments

• History and Basics of Gerrymandering: [00:37–06:16]
• Cracking & Packing Explained: [07:08–08:14]
• Distinguishing Partisan and Racial Gerrymandering: [08:18–13:16]
• Shelby County and Erosion of Voting Rights Act: [13:16–19:57]
• Section 2 & Results vs. Intent: [19:57–24:29]
• Louisiana v. Calais Decision: [21:51–26:13]
• Alabama Redistricting Saga: [26:56–32:57]
• Partisan Gerrymandering Approved: [34:08]
• Purcell Principle and Election Timing: [31:04–38:23]
• Texas & California Map Wars: [33:32–36:32]
• Prospects for Reform & Congress’s Role: [43:13–49:16]
• Possible Supreme Court Reform: [47:02–49:29]
• Optimism, Pessimism, and Civic Engagement: [50:36–end]

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Final Takeaways

The US Supreme Court has, in the past decade, neutered the most effective tools for combating racial gerrymandering—primarily by converting clear statutes (especially the Voting Rights Act) into hollow words requiring impossible standards of proof. Courts can no longer hear partisan gerrymandering cases, and proving racial discrimination requires “smoking gun” evidence of intent. In this legal environment, gerrymandering is both permissible and increasingly endorsed as a legitimate state goal.

Amid these bleak developments, Roman and Elizabeth underscore the vital importance of democratic action: organizing, voting in record numbers, and advocating for legislative change—because, for now, the courts are not coming to the rescue.

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For more information:
Learn more and find past episodes at learnconlaw.com
Music by Doomtree Records.

Transcript

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[Roman Mars]

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[Elizabeth Jo]

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[Roman Mars]

It is Tuesday, June 9th at 2:42pm as we're recording this, what are we gonna talk about today?

[Elizabeth Jo]

Well, Roman, so what does the term gerrymander mean to you?

[Roman Mars]

Well, as I understand it, it means like drawing a ridiculously shaped district in order to advantage your own political party.

[Elizabeth Jo]

I think that's right. So if you see a district that actually doesn't look like anything that you would find in nature or in a political nature, that is, it's not a square, it's not a rectangle, it might have very contorted shapes in it. It's probably been gerrymandered. And so you're right. Gerrymandering refers to the creation of a voting district that is deliberately drawn to advantage a particular political party. And the name goes back to 1812, when the Massachusetts governor, Elbridge Gerry, decided to approve congressional districts that were drawn to help his party, the Democrat, Republicans and and one of the newspapers at the time, the Boston Gazette, published a cartoon of one of these strangely drawn districts, likening it to a dragon, which was a salamander, and deemed it the now famous term gerrymander after Elbridge Gerry. And ever since, lawmakers have tried to draw congressional districts for political purposes. Gerrymandering is a common part of today's electoral politics. But today the situation with gerrymandering is a mess, and arguably a hyper partisan, undemocratic mess because of recent Supreme Court decisions. But understanding this mess, which is itself a complicated story, requires untangling several constitutional threads, and those involve redistricting, political questions, the Voting Rights act, and and six members of the Supreme Court who are acting in increasingly polarized and partisan ways. You ready?

[Roman Mars]

I am ready. Let's do it. This is what Trump can teach us about Con Law, an ongoing series of indeterminate length and sporadic release, where we look at cracking, packing, and the gutting of the Voting Rights act and Use them to examine our Constitution like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Joe, and I'm your fellow student and host, Roman Mars.

[Elizabeth Jo]

So why don't we start out with congressional redistricting, Some of the basics. Okay, so Article 1, Section 2 of the Constitution plus the 14th Amendment means that we count the national population every 10 years. That's the census. And we do this in order to distribute House seats across states. Every state has to have at least one house member per the Constitution. But how many House members a state has beyond that minimum is based on population gains or losses that we discover from the census. So the census is a very important tool of political power distribution in the House. And it's a fixed number. You know the number?

[Roman Mars]

Yep. 435.

[Elizabeth Jo]

435. Ever since Congress passed the Permanent Apportionment act of 1929. So one state's gain is always another state's loss. And what that has traditionally meant is that after each census, states use this as an opportunity to redistrict, meaning redraw their congressional district maps within their state. And the Supreme Court has interpreted the Constitution to require that congressional districts within a state have an approximately equal number of persons, but otherwise, the states have kind of a lot of freedom to redraw their districts. Now, the Constitution also gives Congress the authority to regulate congressional elections. This is also known as the elections clause. Roman, could you read it for us?

[Roman Mars]

Sure. The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. But the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators. And here choosing is charmingly spelled C H U S I N Angie.

[Elizabeth Jo]

Now, this elections clause refers to Congress's ability to regulate the time, places, and manner for congressional elections, just like it says. But it's not just literally that Congress also has the power to regulate all aspects of congressional voting, like voter registration, voter protection, vote counting, and even protecting against voter fraud and, of course, redistricting. Now, Congress has in the past relied on the elections clause to pass redistricting standards. Now, the last major statute was the 1929 Permanent Apportionment Act. That's the same act which sets the number of house seats at 435 and hasn't changed since. So actually, today, most redistricting is done by state legislatures. And the remainder of what's legal and isn't legal in terms of congressional redistricting is dictated by a set of Judicial decisions, some federal statutes, constitutional principles, and state laws. It's pretty complicated. So today I thought we'd just mostly focus on what federal law and the Constitution says.

[Roman Mars]

Great. So how does gerrymandering become an issue here in terms of redistricting?

[Elizabeth Jo]

Well, in theory, the goal of redistricting is kind of benign. Right. The idea is you have a new set of populations. They've moved from one state to another, and even within a state. So you want to make sure that within your, your state, each district represents a fair portion of the voters. So that's the theory. But since most redistricting is done by state legislatures, the party controlling the state legislature has every incentive to keep itself in power and of course, keep the other party out. So that means drawing congressional district maps so that they advantage one political party over another, even if the districts end up looking very strange, like salamanders. So lawmakers might gerrymander districts in ways that are cracking and packing.

[Roman Mars]

Yes. So I know a little bit about this, but tell me more about cracking and packing.

[Elizabeth Jo]

Okay, so packing happens when voters with similar characteristics are concentrated into as few geographic districts as possible. So the idea would be you have a group of people who are Democrats or Republicans or black voters or Hispanic voters. And if you pack More than 51% of these voters into a district, then the packing essentially creates some wasted votes. When you have a winner take all House election. Because you don't need all those extra voters.

[Roman Mars]

Yeah. You just need 51%. That's what you're, you're interested in having your party control 51%. But any percentage over that is wasted in a way.

[Elizabeth Jo]

Yeah, but it's actually pretty advantageous if you don't care about those voters. Right.

[Roman Mars]

Okay.

[Elizabeth Jo]

And so cracking is the opposite. You take the same like minded groups of voters and, and distribute them across so many congressional districts that there's no chance that they can vote for the person that they want to have represent them in the House. Because of the cracking, they're unable to have the voting power they need to actually go ahead and vote someone into the House.

[Roman Mars]

Is cracking and packing legal?

[Elizabeth Jo]

Well, that is a big question, and it depends. So first, it depends on what kind of gerrymandering you're talking about. So for our purposes, there are two important kinds of gerrymandering. To distinguish, we can call one partisan gerrymandering and the other one racial gerrymandering. So partisan gerrymandering happens because lawmakers want to draw a congressional district map in a way that favors one political party over Another. So one way to think about whether that's legal is whether you can bring a lawsuit because you're claiming, hey, partisan gerrymandering is illegal or in fact, unconstitutional. Now, in 2019, in a case called Rucho v. Common Cause, voters in North Carolina and Maryland challenged their state's redistricting maps. Now, they claim that the new maps were unconstitutional partisan gerrymanders, which violated their rights under the first and 14th Amendments. But in Rucho, the Supreme Court, in an opinion written by Chief Justice Roberts, responded by saying, well, they couldn't really help the plaintiffs at all because their lawsuit raised the political question doctrine.

[Roman Mars]

Okay, so what is the political question doctrine?

[Elizabeth Jo]

Well, you can't find it in the Constitution, but the political question.

[Roman Mars]

That's right.

[Elizabeth Jo]

The political question doctrine is one of several rules the Supreme Court has interpreted out of the Constitution's requirement that the federal courts can hear only cases and controversies. So, you know, we've heard of a lot of high profile Supreme Court cases in the past couple of years where the plaintiffs either have or don't have what's called standing or legal injury. Right. So you know that term. Well, the political question doctrine is similar because it's about the kinds of cases the Supreme Court says that it and other federal courts either can or cannot hear because the Constitution doesn't permit it. Now, the unfortunate thing about the name is that it's pretty misleading. The political question doctrine doesn't mean that a court can't hear politically controversial issues. That's not what it means at all. Instead, the political question doctrine means that there are some types of cases that the Court says, you know, it's better if the political branches like Congress deal with this issue rather than the courts. It's just too hard of an issue for the courts to manage in any way. And so in the 2019 case, the Supreme Court decided that claims about partisan gerrymandering were what we call non justiciable, can't be judged political questions. In other words, if your legal claim is that, hey, the lawmakers in my state are redistricting to favor one political party over another, that's just not the kind of claim a court can hear. Case dismissed. So that's one constitutional thread for gerrymandering. Lawsuits over partisan gerrymandering don't go anywhere.

[Roman Mars]

Yeah. So the de facto makes them legal because the Supreme Court says it isn't even, like, legal to consider it or it isn't law to consider.

[Elizabeth Jo]

Yeah, we can't even hear it at all. That's right. And there's Actually, something even more interesting, because in Rucho, the court says, look, we can't hear this case, but we're not approving of partisan gerrymandering. In other words, you know, they say, look, maybe people are unhappy with this, but that's not a good reason for us to hear it. But they're also not really condoning partisan gerrymandering either. They're like, well, you know, we don't love it, but we can't hear this.

[Roman Mars]

What does it mean to condone in that situation, though? I mean, like, if you're. I mean, I don't know.

[Elizabeth Jo]

Okay, you'll see. But.

[Roman Mars]

But, I mean, I guess.

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But.

[Roman Mars]

But. But. But it sounds to me like a generous interpretation of this is that this is a political problem with a political solution. If you don't like it, then vote the people who did this out of office.

[Elizabeth Jo]

Exactly. That is the message. That is the message.

[Roman Mars]

So now we've done partisan gerrymandering. What is racial gerrymandering?

[Elizabeth Jo]

Okay, so let's take a very quick look at history. So the Reconstruction amendments, the 13th, 14th, and 15th amendments are passed after the Civil War, and they abolish slavery, guarantee equal protection and due process of a law and the right to vote. But after Reconstruction, the Southern states passed all kinds of laws to restrict or burden the rights of black voters and basically to impose racial segregation. That was the Jim Crow South. Now, the right to vote that was guaranteed in the 15th Amendment becomes, in reality, a long struggle to actually gain the real right to vote. Now, one of the big turning points of the civil rights movement in the 20th century was the brutal police attack on March 7, 1965, on hundreds of nonviolent protesters marching for the right to vote. So I think lots of people remember, or I've seen pictures of John Lewis being beaten on the Edmund Pettus Bridge outside of Selma. Right. So that's a pivotal, iconic moment. So the violence there and the public attention to that violence added even more pressure to Congress as they considered what would be the Voting Rights act, which had been introduced the very same month. The Voting Rights act was signed into law by President Johnson on August 6, 1965, that same year. It is the primary federal law meant to enforce the 15th Amendment, which bans the denial of voting rights based on race, color, or previous condition of servitude. And you can see that just by thinking about where this comes from and what it's meant to do. The entire objective of the Voting Rights act is to ensure that racial minorities can exercise the right to vote. The Voting Rights act is widely considered one of the great landmarks of federal civil rights legislation. Along with the Civil Rights act of 1964, which prohibited racial discrimination in public accommodations, it was pretty successful. The first two black Southerners to win House seats after the Voting Rights act was passed won their districts after they were redrawn to follow the law. And they happen to be the first black Southerners to have been elected to the house since the 1880s. So you look at this, and the Voting Rights act absolutely made a difference to non white representation in the House.

[Roman Mars]

So how does the Voting Rights act actually work?

[Elizabeth Jo]

Okay, well, once upon a time, there were two important sections of the Voting Rights act that protected voting rights for black voters. Now, the Voting Rights act actually protects the rights of racial and language minorities. But to keep things simple, I'm simply going to refer to the voting rights of black Americans.

[Roman Mars]

Okay.

[Elizabeth Jo]

So sections 4 and 5 of the voting Rights act work together to establish what are called preclearance requirements for certain states. Now, when the act was first passed, it made it mandatory for states with a history of racial discrimination, and these were Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia and North Carolina to receive approval or pre clearance before they were allowed to change their voting rules. That included redrawing new congressional district maps. And later amendments to the act extended that pre clearance requirement. In other words, getting pre approval to additional states like Arizona and Texas. But in 2013, the Supreme Court effectively put an end to Section 4 in a case called Shelby county versus Holder. And they did that by invalidating the formula used to determine which areas should be required to get preapproval or pre clearance to make sure that the voting rules in those states were not racially discriminatory.

[Roman Mars]

So why did the Court decide that?

[Elizabeth Jo]

Well, as a matter of legal doctrine, the majority in Shelby county said Section 4 violated a principle of equal sovereignty among the states given what it called current conditions. And what were those current conditions? Chief Justice Roberts put it this way. Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. So a short way of understanding this is like we're kind of over it. What? Racial discrimination?

[Roman Mars]

Yeah, yeah, they used to be racist. They're not so racist anymore.

[Elizabeth Jo]

Yeah, there's not too much racism. That was the answer.

[Roman Mars]

Got it.

[Elizabeth Jo]

The result of Shelby county guts a central part of the Voting Rights Act, Shelby county was a 5, 4 decision. It's a major shakeup of what we think about when we think about the Voting Rights Act. And you don't really have pre clearance anymore because, again, the formula that is supposed to be used, the Court says you can't use it anymore. But it's not remotely unanimous. It's 5, 4. The four dissenters include Justices Kagan and Sotomayor, who are still on the court, Justice Breyer, who retired, and Justice Ginsburg, who died in 2020. Justice Ketanji Brown Jackson replaced Justice Breyer. The conservatives would lose Justice Kennedy, who retired, and Justice Scalia, who died in 2016. But then, of course, President Trump added three more justices. Gorsuch, Kavanaugh, and Barrett. And so that's been the enduring 6, 3 divide that we have seen all these years.

[Roman Mars]

The key word here is endure.

[Elizabeth Jo]

Endure. That's right. And after Shelby county states that had previously been covered by these pre clearance requirements immediately pass restricting voting laws, because they don't really have to wait at all.

[Roman Mars]

Yeah, yeah, yeah. This is the famous dissent where Ruth Bader Ginsburg said, this is like throwing away your umbrella because you're not getting wet during the rain sort of thing.

[Elizabeth Jo]

Exactly. Like, how can it be that the one thing that's kept this kind of oppressive voter suppression from happening or being worse, why have we decided that that's not needed anymore? Yeah, yeah, yeah. And then there's Section two of the Voting Rights act that was not touched by Shelby county. Now, Section 2 bans states from using what the law calls any standard practice or procedure to deny voting rights based on racial discrimination. The states are not supposed to engage in what we'd call vote dilution. So Section 2 has been primarily used to challenge the redistricting maps that we've been talking about. The claim here is when a state is involved in racial gerrymandering, they are redrawing a congressional district to dilute the voting power of black voters.

[Roman Mars]

Yeah, cracking.

[Elizabeth Jo]

That's right. Cracking. Or packing. Remember splitting up geographic areas or cramming similarly group voters into as few districts as possible. So both kinds of actions dilute voting strength. And if it targeted black voters, then that would seem to be a valid Section two challenge.

[Roman Mars]

So what would happen if these Section two lawsuits were successful?

[Elizabeth Jo]

Okay, so there's a couple of things to keep in mind. How Section 2 lawsuits were supposed to succeed and what courts did when challengers won their cases. Now, in 1982, Congress amended the Voting Rights act so that the states could not put voting rules into place that result in interfering with the right to vote on the basis of race. I've paused on that word because that's really important when the voting rules of a state result in what look like racially discriminatory effects. Now, why did Congress do this in 1982? Because the Supreme Court had decided a Voting Rights act case that interpreted the Voting Rights act to ban only intentional discrimination. So those are two very different standards you can sort of see which would be easier for a challenger to prove, right?

[Roman Mars]

Yeah, yeah, yeah, it's much easier to prove. I mean, like, you can't prove intent, and then you can wait for the results, which after that, you know, the horse is out of the barn kind of.

[Elizabeth Jo]

Right, Yeah. I mean, it's very, very uncommon for a state to say, oh, we are intending to engage in racial discrimination. Here's the smoking gun. It's much easier to prove results as a result of those amendments to the Voting Rights act, which I should mention here, was a bipartisan effort signed by President Reagan. States are not supposed to do things like draw districts that result in making it harder for black voters to exercise their rights, or as the act puts it, if they have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. So there are Supreme Court cases that make this analysis much more complicated. But the main thing to keep in mind is that Congress did not want it to be so hard for challengers to win a Section 2 claim in a redistricting case. They just couldn't prove intent. That's why we have this results based language. If the state drew a new map that resulted in less chances for black voters to have a meaningful vote in their state, then that might qualify as a Section 2 violation under the Voting Rights Act.

[Roman Mars]

Okay, okay.

[Elizabeth Jo]

So that's a big part of it. Now let's turn to what's called, like, the legal remedy. Let's say you're a challenger, you bring a Section 2 case. And in the old days, what happens if a court determines that, yes, the state has violated Section 2 of the Voting Rights Act? Okay, well, a court could actually demand that the state come up with a different map that would be fairer to black voters so that their voting power is not diluted. So if you look at these cases, these decisions, you know, you can pull up one of these Section 2 cases and they have little maps in the decision, you know, competing maps with different color coded districts. So that's pretty neat. But that's exactly what courts were doing.

[Roman Mars]

Wow.

[Elizabeth Jo]

Now, that was the way Section 2 of the Voting Rights act was supposed to work until this year. And that's because of the Supreme Court's decision in Louisiana versus Calais, and Calais broke what was left of the Voting Rights Act.

[Roman Mars]

Wow. So how did it do that?

[Elizabeth Jo]

So let's go back to the basics. After a census, the states have an opportunity to redraw their maps, right?

[Roman Mars]

That's right. That's right.

[Elizabeth Jo]

And I'd imagine that every state does, right?

[Roman Mars]

Yeah.

[Elizabeth Jo]

Right. Because you want to. Population changing.

[Roman Mars]

Yeah, sure.

[Elizabeth Jo]

You know, you're. I mean, that's part of the normal political process that modern politics is on.

[Roman Mars]

That is how it's supposed to be working.

[Elizabeth Jo]

Yeah. Right. Now, after the 2020 census, Louisiana redrew its six congressional districts so that it would have one majority black district and five majority white ones. Now, it's worth noting that a third of the state's population is black. So a group of black voters sued about the new map, alleging that this represented a legal racial vote dilution under section 2 of the Voting Rights Act. Now, after a federal trial court said the plaintiffs were likely to win, the state redrew its map in 2024 to create a second majority Black district.

[Roman Mars]

Okay.

[Elizabeth Jo]

But then a different group of white plaintiffs filed a lawsuit and said that this new map was itself unlawful because it was an unlawful racial gerrymander precisely because the state was using race to redraw a map.

[Roman Mars]

Okay.

[Elizabeth Jo]

So they're claiming that the second black majority district, not only was it required by the Voting Rights act, but it was itself a violation of their rights, the white plaintiffs rights under the 14th Amendment. So the logic. The crazy logic of the white plaintiffs here is that the state, by trying to comply with the Voting Rights act, was simultaneously violating the rights of the white plaintiffs by relying on race to create a second black majority district in the state.

[Roman Mars]

Got it. Okay.

[Elizabeth Jo]

So the Supreme Court combined both of these lawsuits and on April 29, decided Louisiana versus Calais. So, legally speaking, there's a lot to unpack here. The Supreme Court had to decide against the backdrop of several complicated Voting Rights act decisions. And these include things like how to figure out the appropriate baseline for measuring vote dilution, things of that nature. But there's just one big and easy thing to understand from the Calais decision. To succeed from now on, On a Section 2 claim, you need to show that the state intended to redistrict because of racial discrimination.

[Roman Mars]

Yeah.

[Elizabeth Jo]

It's the opposite of what happened in 1982.

[Roman Mars]

Yeah. Oh, my goodness. Okay.

[Elizabeth Jo]

So as a result, that second majority black district that the federal district court had ordered Louisiana to create in order to comply with the Voting Rights act was itself unlawful. The state can't use race to redraw a district, said the court, because this also was a kind of racial discrimination against white voters. The only circumstances in which the state can override this ban is when the challengers to a map say that the state initially intentionally drew a district to discriminate against black voters. Which, as we've already discussed, is very, very hard to do. It's hard to find that kind of evidence.

[Roman Mars]

So given that decision, what does the redistricting challenge look like now?

[Elizabeth Jo]

It's really hard, if not impossible. So the kind of racial gerrymandering we've historically associated with suppression of voting rights and the dilution of black voting power has become nearly impossible. There's little chance that you're ever going to find the kind of evidence that you need. And what do you think lawmakers are always going to say?

[Roman Mars]

Yeah, we didn't intend to.

[Elizabeth Jo]

We didn't intend to. It was our intention. Right.

[Roman Mars]

In this process, did the court overrule the Voting Rights Act?

[Elizabeth Jo]

No. Interestingly, it feels like it did, but it's saying that it did not. Justice Alito, who wrote the opinion, said, specifically, we are not overruling the Voting Rights act, but now that Section 2 claims are virtually impossible, and we know from Shelby county that Section 4 claims are also impossible, the effect of the Koolaid decision is to gut the Voting Rights Act. It seems formally alive, but sort of functionally dead.

[Roman Mars]

So this just happened this year. So what have been the effects of the Louisiana decision so far?

[Elizabeth Jo]

Well, the general message seems to be a green light to gerrymander in ways that suspiciously look like what had been illegal racial vote dilution. We've already seen announcements in states like Mississippi and Tennessee that the lawmakers want to draw new maps. And a good example of this just happened in Alabama, which was twice told that it was acting illegally until the Kalai decision, when the very same behavior that had been told was illegal was suddenly legal. Yeah, and Alabama eventually ended up going to the Supreme Court three times. So let's talk about this crazy journey that they took.

[Roman Mars]

Oh, yeah. Okay.

[Elizabeth Jo]

All right. So in 2021, Alabama drew a new redistricting map after the 2020 census. That map had only one majority black district, but about 27% of the state's population is black. So that map was challenged in court as a violation of Section 2 under the Voting Rights act, and the federal district court agreed. It found that the state's new map diluted the voting power of black voters. And the district court told Alabama, go ahead and draw a new map. Now, Alabama said, but we can't make a new map in time before our 2022 primary election. And so the Supreme Court allowed Alabama to use their map as a temporary measure. So if you're listening to this carefully, that's right, the voters voted with an unlawful map. That's trip one. Eighteen months later, the Supreme Court considered the case fully, informally, and they decided actually the federal district court was right. Alabama's new map was a violation of Section 2 under the Voting Rights Act. Draw a new map. Alabama did not do that. They did not comply. They did draw a new map, but they drew another map without complying with the Voting Rights Act. They did not put in a second black majority district. So the plaintiffs went back to court. The district court said, fine, we will draw the map. Since Alabama won't do it, we'll draw a new map for 2024. And that new map sent two Black representatives to the House. So Alabama went back to court again. In the meantime, the Supreme Court decided the Calais case about Louisiana's maps. And in May of this year, the Supreme Court vacated the district court's order in Alabama to use the 2024 map. That's trip two. I know it's confusing because it is confusing. So Alabama said, great, we'll use the 2023 map, the one that the district court already said was illegal for 2026.

[Roman Mars]

Yeah.

[Elizabeth Jo]

Well, here's the thing. There was a May 19 primary a week away from the decision. So if you were a voter in four districts whose maps had just been changed because of the Supreme Court, you voted, but your vote actually did not count. The governor said, okay, let's have a special election for those four districts. The challengers went back to court. You can't do that either. And this time the district court gets really mad. This is after the Calais decision and, and says, look, Alabama is in fact intentionally, this time discriminating on the basis of race. The court decided not only that was this a violation of the Voting Rights act, it also violates the 14th Amendment's equal protection clause. Again, this is a decision after the Calais case. Alabama takes trip three to the Supreme Court. And on June 2, just a couple weeks ago, the Supreme Court decided in an unsigned four page opinion that yes, Alabama's map, the bad 2023 one, not the better 2024 one, was fine for the state to use. That case called Allen v. Milligan, was like Calais, a 6, 3 decision.

[Roman Mars]

So why did the court reach this decision?

[Elizabeth Jo]

Well, you can't really call it a finely reasoned decision. This was on the court's so called emergency or shadow docket. So it's actually just four pages long. But what the Supreme Court seems to be saying in the Alabama decision is that when legislatures redraw their maps, from now on, courts should assume that the state is acting in good faith, meaning you should presume they're not discriminating on the basis of race. And that's true, as long as the state can give some non race based reason for drawing its map. And they did it, I assume for partisan reasons, says the court, that just happens to coincide with race. But it gets even worse because the Supreme Court has developed what's called the Purcell principle. I don't know if you're familiar with that.

[Roman Mars]

I am not. So please tell me the new thing I will be disgusted with.

[Elizabeth Jo]

So the name comes from a Supreme court case from 2006 called Purcell vs. Gonzalez. And in that case, the Supreme Court put a pause on a lower court's block of a voter ID law in Arizona that was just two weeks before a midterm election.

[Roman Mars]

Okay, got it, got it.

[Elizabeth Jo]

Yeah. And the reason why the lower court wasn't allowed to stop this law. Here's what the supreme court said in 2006. Court orders affecting decisions can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. So the Purcell principle basically means courts shouldn't try to change election rules too close to an election. That sounds pretty good, right? I mean, that seems sensible.

[Roman Mars]

Sounds prudent. Yes.

[Elizabeth Jo]

Okay. But in the Alabama case, the one where they take the three trips, the Supreme Court now says that while courts shouldn't make last minute changes, states can. Here's what they said. States are free to decide for themselves whether last minute changes to an election are in their best interest. Meaning that a state can make a last minute change that dilutes the power of some voters, I guess, and maybe create some confusion. But that's not the same as a court doing it. Now, I want to, if you'll go back to that crazy story, the three trips that Alabama took, one part you might remember, or I'll remind you about. Alabama had complained one of the times when it was ordered to change its map because they said it was too hard. It's going to take us too much time. It wasn't too hard this time when they were just a week away. So let's sum up where we are so far. If you have a claim that a state is engaged in illegal partisan gerrymandering, that's a political question that can't be judged by a court.

[Roman Mars]

Doesn't matter.

[Elizabeth Jo]

Yeah, yeah, doesn't matter. So if you want to win on a claim that the state diluted your votes, the voting rights of a racial minority under section 2 of the Voting Rights act, then you have to show that the state intended to discriminate, which is another way of saying you're not going to be able to win.

[Roman Mars]

Right.

[Elizabeth Jo]

And courts shouldn't try to change election rules too close to an election, but states are free to do so.

[Roman Mars]

Okay, okay.

[Elizabeth Jo]

So the effect of all of this is even more gerrymandering, and that explains what actually happened in Texas and California.

[Roman Mars]

Okay, okay, let's talk about those.

[Elizabeth Jo]

All right, sure. So one hurdle that Section 2 challengers under the Voting Rights act now face is that they have to show intentional discrimination instead of political gerrymandering, which apparently the states can do. So remember in 2019, in the case of Rucho v. Common Cause, gerrymandering is subject to the political question doctrine. Courts can't hear them.

[Roman Mars]

Yep.

[Elizabeth Jo]

So the court also said, if you remember that partisan gerrymandering, well, isn't that great for democracy? We'll tolerate it, but let's not encourage it.

[Roman Mars]

Okay, sure.

[Elizabeth Jo]

But in Calais, the decision that the court just decided this year, we see a dramatic change. Justice Alito, the author of the opinion, says partisan gerrymandering is, in fact, a legitimate state interest.

[Roman Mars]

Huh.

[Elizabeth Jo]

In other words, not only do we tolerate partisan gerrymandering, states can, and, well, maybe they should gerrymander in partisan ways as much as they want. Because if partisan gerrymandering is now a legitimate state goal, it's no longer just an unfortunate side effect of politics. It's something that states should be freely encouraged to do. Okay, so what are we facing this year? The midterms.

[Roman Mars]

Yes.

[Elizabeth Jo]

Right. Yeah. So now, historically, the President's party loses seats in the midterms. And I'm sure you're aware that the Republicans are a majority in the House, but kind of just barely, they've got, like this maybe. I think it's a six seat advantage right now. Yeah. Now, last year, Trump called on Texas to redraw its congressional districts. Right. And Texas did just that. A group of voters filed a lawsuit arguing that race was impermissibly used to redraw the districts in Texas. And the lower federal court ruled that Texas had, in fact, unconstitutionally drawn the new districts based impermissibly on race. Now, on December 4th of last year, the Supreme Court put A pause on that order. And what did the Supreme Court rely on? Their Purcell principle. It's just too late to change the rules before an election.

[Roman Mars]

Okay.

[Elizabeth Jo]

So for the midterms, Texans will vote on a map that the federal district court had found was used to target the seats of five black and Latino members of Congress. And then, you know, of course, what our state, California did.

[Roman Mars]

Yeah. As a reaction, we decided we were going to erase those. That 5 advantage, basically.

[Elizabeth Jo]

Yeah. You were just going to do the exact same thing.

[Roman Mars]

Yeah. Except for it went to an actual popular vote.

[Elizabeth Jo]

That's right. So we approve the voters of California Proposition 50. So as a result of Proposition 50, California set aside a district map that had been drawn by an independent redistricting commission, and in its place is a new map drawn by the state legislature, which, of course, is controlled by the Democratic majority. So with this new map, California Democrats stand to win five more House seats. So Proposition 50 itself was challenged in court, but the Supreme Court declined to review it.

[Roman Mars]

Okay.

[Elizabeth Jo]

And that's just California and Texas. Right. As a result of what's been going on in the Supreme Court, every state now has an incentive to redistrict in as partisan a manner as possible. A number of states have already called for special sessions to redraw maps before the midterms. And the states that don't get their act together by the midterms will almost certainly redraw their maps before the 2028 elections.

[Roman Mars]

Yeah.

[Elizabeth Jo]

And then House redistricting as a result of all this, I think kind of starts to look like the electoral college. Right.

[Roman Mars]

Yeah. Yeah.

[Elizabeth Jo]

Because any party that wins control of the state legislature and the governorship will immediately redraw its own maps, and they'll try to lock in power for as long as they can. So red states are going to get really, really red, and blue states are going to get really, really blue. And I guess the question is whether that's like a meaningful kind of democracy for ordinary American voters. For black voters in the south, it almost certainly means reducing their ability to elect representatives of their choice.

[Roman Mars]

It's a disaster.

[Elizabeth Jo]

Yeah. And I think one of the things that really is remarkable is the partisan nature of what's happening in these election decisions. The Kalai Decision is a 6, 3 decision, and it turns Section 2 of the Voting Rights act into the exact opposite of what Congress had intended. So, remember, the 1982amendments were done so that it would be easier for challengers to win. All you have to show is that what the state did in redrawing its maps they resulted in an abridgment or dilution of your voting power. But after the Calais decision of this year, well, it doesn't really matter because you have to show that the state intended to engage in racial discrimination. And that's, again, totally impossible.

[Roman Mars]

Yeah, it's like, are they racist in their heart? Kind of nonsense. And also because political lines and racial lines are, you know, they're not lockstep, but they're pretty linked. And so therefore, you can always rely on the permissible version of this, which is it is a partisan gerrymander, not a racial gerrymander.

[Elizabeth Jo]

Exactly. You're always gonna be. I mean, that's certainly true in the south and with black voters.

[Roman Mars]

Right.

[Elizabeth Jo]

You're always gonna be able to say, well, we're just doing this to redistrict against Democrats, which also happened to map onto the power of black voters in the South.

[Roman Mars]

Yeah.

[Elizabeth Jo]

And then of course, there's this court's timing in these cases. Right. So there's the Purcell principle again, the basic idea that courts should not change the rules too close to elections. That'll confuse voters and make people mad. So what usually happens in a Supreme Court decision is that when we read a, like a high profile case, we read it on the day it comes out, but actually there's a period of time, 32 days before the judgment is considered final. It's a procedural date, so it doesn't actually take effect formally for about, about a month. That's pre normal. But in Calais, the Louisiana case, the white plaintiffs who were successful, they asked the court, hey, can you issue the judgment right away?

[Roman Mars]

Why is that?

[Elizabeth Jo]

Well, because Louisiana's primary election was officially scheduled for May 16, which was just a few weeks after the Supreme Court's decision. And actually mail in ballots had already gone out to voters. So when the Supreme Court decided that Louisiana's attempt initially to comply with the Voting Rights act was unconstitutional, the governor then suspended the ongoing primary election. He said, oh, we're gonna have a new one. And to make that happen, the winning parties in Calais asked the Supreme Court to speed things up. So that part I think is, you know, it's pretty nasty politics. Right? But here the Supreme Court, the court has a choice. The court could have said, no, we do things in a normal, regular, procedural way, and you have to wait. And that would have made it much more difficult for Louisiana to suspend its primary, nullify the mail in ballots, and then have a do over. Or the Supreme Court also could have said, we have this momentous decision, but it's pretty close to the midterms. So they're not going to take effect until the next election cycle. It could have cited the Purcell principle. Right. We don't want to confuse people. But they didn't. They agreed. They agreed to let the judgment speed up in order for Louisiana to have this do over. The same is true for the Alabama case. The reason the Supreme Court issued a four page opinion in the Alabama case is because the state asked for an emergency ruling letting it ignore the map they had been ordered to make from the lower federal court. So here too, the Supreme Court could have said, look, voters in Alabama are about to vote. We shouldn't do this. But the sixth justice majority again decided it would allow Alabama to use the map. But the Texas case, the one where the plaintiffs argued that the new maps demanded by President Trump were an unconstitutional racial gerrymander and the lower federal court said yes, it was. The Supreme Court blocked that ruling. And what did Justice Alito, who would later write the opinion in Calais, say about this lower court decision, which was in December? It's just too close to the election. Texas needs certainty for the 2026 midterms. Remember, he's saying this in December of 2025.

[Roman Mars]

Wow.

[Elizabeth Jo]

So is there a coherent principle explaining these decisions? It's hard to see one. A cynical person might say Purcell seems to matter when it helps GOP controlled states and it doesn't matter when it doesn't.

[Roman Mars]

Yeah, I don't think it takes cynicism to make that decision. It just takes like a pattern recognition to make that determination.

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[Roman Mars]

since this all seems to be like a one way ratchet to make GOP states more GOP and Democratic states more democratic, is there any way out of this?

[Elizabeth Jo]

Well, it's like that joke that's going around. I'm sure glad Congress isn't alive to see this. Right?

[Roman Mars]

That's right.

[Elizabeth Jo]

Because theoretically there are several options that Congress could take. So remember, there is an elections clause. The Constitution does give Congress the power to regulate the time, place and manner of elections for House members. That's a lot of potential power. House representation is based on population. The Constitution says every state has to have at least one House member, but other than that, you know, there's a lot of freedom here.

[Roman Mars]

Yeah.

[Elizabeth Jo]

Constitution doesn't require that House members come from specific geographic districts within a state. Instead, that comes from Congress. Ever since 1971, Congress has required that states with more than one House member have to have single member districts. That's not from the Constitution. That's Congress's choice. It's definitely one cause of the gerrymandering problem. Congress could require what would be called at large House elections, and that would mean voters in a state could vote for as many candidates as there were seats for a state in the House. It wouldn't matter where the voters came from or where the candidates were coming from. So at large elections would definitely eliminate gerrymandering.

[Roman Mars]

Yeah. Because there'd be no district shapes to contend with at all.

[Elizabeth Jo]

Yeah, there'd be none of those. It might make candidates more politically moderate since they have to appeal to everybody in the state. Sure.

[Roman Mars]

Or they lean hard into one small group and that puts them in the top five or whatever. And that's fine. Yeah, yeah.

[Elizabeth Jo]

I mean, but there's definitely some downsides. I mean, it would make House elections much more expensive. Interesting. And I think some voting experts think it might not help minority voters, but I think I can say with some confidence that it's not worse, clearly. Worse?

[Roman Mars]

Yeah. I don't think it could make it worse. I mean, that's. It does seem like, you know, there might be something to be said about. My district thinks more like me than not. But if we collectively have enough power to put that person in fourth place in a statewide election, that seems like that's the way to get that done as well, you know, so the. The idea of related to land mass doesn't strike me as all that compelling of a thing to keep. To keep alive, honestly.

[Elizabeth Jo]

Yeah, that's definitely a possibility. Another one is Congress could use its elections clause power and actually ban multiple attempts at redistricting, the kind of thing that you see with Alabama and Louisiana. Just like every state gets one shot after the census, and that's it. Yeah, right. That certainly would be within their power.

[Roman Mars]

Yeah, yeah, yeah.

[Elizabeth Jo]

Congress could also require the states to establish nonpartisan independent redistricting commissions. So that would be at least one way to address some of the extreme partisanship we see in maps. There are just a handful of states that have independent commissions, except ours was one of them, but is temporarily suspended for the time being.

[Roman Mars]

Yeah, you know, like, it's like you can't bring a knife to a gunfight, I guess. You know, I mean, it's like they're like really, really concerned. I mean, they're just reacting to what is already happening. I don't think that would have happened otherwise.

[Elizabeth Jo]

Yeah, it's absolutely erased to the bottom, which is completely sanctioned by everything that

[Roman Mars]

the Court has done, which sucks.

[Elizabeth Jo]

Yeah.

[Roman Mars]

What about the idea of just like not capping at 435? Anyone thought about what that would do?

[Elizabeth Jo]

Yeah, I mean, there's no reason that we have to have it that way. I mean, that's another coming from a completely different angle. We could just have many more representatives, period.

[Roman Mars]

Yeah. I mean, then there's some variety to become like, well, not everyone can be a sycophant to the Executive branch. There must be just greater variety there. And therefore maybe this sort of moribund Congress wouldn't exist the same way.

[Elizabeth Jo]

Yeah. And of course, there's the biggest question. Right. The one that's not even the redistricting question. Do we even need to keep the Supreme Court the way it is?

[Roman Mars]

Right.

[Elizabeth Jo]

I mean, that too is up to Congress, right?

[Roman Mars]

Yeah.

[Elizabeth Jo]

The Constitution requires no specific number of Justices. We've sometimes historically had six. We've sometimes historically had 10. We've had nine justices since 1869. But that is entirely a matter of choice.

[Roman Mars]

Yeah.

[Elizabeth Jo]

You know, I think lots of people are familiar with FDR's court packing plan. You know, he wanted to add six more justices to the Court because the conservative majority kept striking down his New Deal legislation. The proposal didn't win, but he got what he wanted in the end for, you know, for whatever reason. Now, President Biden established a Commission on supreme court reform in 2021. Nobody really expected the commission to do anything. And it delivered on that because it issued a 288 page report in 2021. And, you know, this commission couldn't agree on whether to recommend packing the Court and didn't really offer any other recommendations either. And after that, five months later, that's the leaked document where we see the Court deciding to overturn Roe v. Wade. You might remember in Dobbs, Justice Alito said it's time to heed the Constitution and return the issue of abortion to the people's elected representatives. That's the same justice who would say four years after Dobbs that partisan gerrymandering is a constitutionally permissible goal of government in the Calais decision. In fact, it's a legitimate thing for states to do. So court packing ideas have been tossed around for a long time, but I think Some folks are beginning to think that it's less of a fringe idea. Yeah, yeah. And because the number of Justices isn't constitutionally required, it's actually much easier than some of the other Supreme Court proposals that have been tossed around because like, let's say one of them is like term limits for Justices. That's actually much harder. It would require constitutional amendment, since we all understand the Constitution, to guarantee what's called life tenure for federal, not just Justices, but all federal judges.

[Roman Mars]

Yeah.

[Elizabeth Jo]

So it'd be much easier actually to pack the court.

[Roman Mars]

Yeah. I mean, you could do it with the majority. Right. Or I guess you'd have to get over a veto if you had a non agreeing executive. But other than that, that's it.

[Elizabeth Jo]

Right, right. And much easier than changing the Constitution.

[Roman Mars]

Yeah, Much, much, much easier.

[Elizabeth Jo]

One last thing, I just want to return for a moment to Purcell versus Gonzalez. In that case, the Supreme Court said confidence in the integrity of our electoral processes is essential to the foundation of our participatory democracy. So as we get closer to the midterms, it's pretty clear that people are worried about election interference, vote dilution, voter suppression. Will the Supreme Court play a role in supporting American democracy and diminishing partisan tension? I don't think it's clear at this moment, no.

[Roman Mars]

Well, I mean, I think it's clear, but I just don't think it's the wrong direction. It's the wrong direction. It's clear that they're not going to diminish anything. They're just going to be more partisan and make it all worse. It's just a terrible situation to be in. It makes me so upset. Every decision is just sort of, it's sort of inconsistent and partisan in these ways that it's just like, it's hard to not apply intent to it. You certainly can apply results to it. The result is Republicans are winning these fights all the time. At a certain point you have to assume the intent because otherwise the results don't make any sense.

[Elizabeth Jo]

Absolutely.

[Roman Mars]

Well, this is fascinating and depressing stuff. Hopefully. The thing that I hope for is people are so disgusted with Trump right now and there's these +30 generic Democrat advantage that even in these ultra red states, you're talking about, you know, 10 points and maybe like these, these redistricting efforts like won't actually work in a way, you know what I mean? Maybe they'll surprise people by what people vote for in the end.

[Elizabeth Jo]

I think that's right. And one of the things to keep in mind is I think you know, this is. It's an easy moment to be really, really cynical and think like nothing really matters. But what is actually going to overcome all of this is not cynicism, but actually working hard to make sure that some of these barriers are overcome.

[Roman Mars]

That's right, because these advantages in these different states, in these different districts is not set in stone. And there's way more people that don't vote. That could change the election tremendously. And we just went through a primary vote here in California and it had incredible amount of participation and it was heartening. And so I really do hope that when we get to the next phase of it that the bad actors and all this are just surprised by, by the amount of people who actually care about the election enough to vote and therefore vote them out of office.

[Elizabeth Jo]

So, me too.

[Roman Mars]

Let's hope that the political remedy is actually the one that actually could actually happen. But we'll have to see.

[Elizabeth Jo]

Yep.

[Roman Mars]

Thank you.

[Elizabeth Jo]

Thanks, Roman.

[Roman Mars]

If you want more on the supreme court and Article 3 and how the judicial branch is structured, check out the 99% invisible breakdown of the the Constitution. Our guest was Adam Liptak. It was really a fantastic episode. This show is produced by Elizabeth Jo, Isabel angel and me, Roman Mars. It's mixed by Martin Gonzalez. Our executive producer is Kathy Tu. You can find us [e-mail] all the music and what Trump can teach us about Con Law is provided by Doomtree Records, the Midwest hip hop collective. You can find out more about Doomtree Records, get merch and learn about who's on [e-mail] we are part of the SiriusXM podcast family.

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