I was hoping for at least some optimism from my guests on today’s BradCast regarding the future of the landmark Voting Right Act of 1965. I’m sorry to say, I didn’t get much in that regard. But I learned a lot. [Audio link to full show follows this summary.]
The corrupted U.S. Supreme Court held a nearly three-hour Oral Argument this week after the activist Republican Supremes actually asked plaintiffs from a case last year in Louisiana to come back this term and argue something else entirely: Essentially, whether one of the last standing sections of the Act barring discriminatory election practices, Section 2, somehow violates the Constitution itself.
The case is Louisiana v. Callais. Its origins are complicated, though one of our guests explains it quite simply today. Basically, following the 2020 Census, the Republican legislature in Louisiana drew a U.S. House Map that all but ensured no less than 5 Republican Congressional Districts and just one that might be won by Democrats, because it has been packed with a large majority of the state’s Black voters. But Louisiana’s voting population is more than 30% Black. So voting rights advocates sued for a second majority-minority district under Section 2 of the VRA. They won. But now a group of White voters in the state (several of whom didn’t even know they were listed as plaintiffs!) are attempting to turn the VRA on its head, arguing — as Mark Joseph Stern summarizes it, that “it’s racist to remedy racism” — by claiming that minority voting opportunity districts amount to an unlawful racial gerrymander violating the rights of the white voters under the 14th and 15th Amendments of the Constitution.
By way of reminder, those Amendments, in brief, bar discrimination against voters on the basis of race, and allow for Congress to adopt laws enforcing the Amendments by protecting all voters. Almost a century after the Amendments were ratified, Congress finally passed the Voting Rights Act in 1965 to do exactly that. Republicans, including now Chief Justice John Roberts, have spent the better part of the last five decades or so trying to roll back the protections for minority voters afforded by the VRA and the post-Civil War Amendments.
After working for the Reagan Administration in the early 80s (unsuccessfully) to try and weaken the Act, in 2013, John Roberts, as Chief Justice, wrote the Shelby County v. Holder Opinion that gutted Section 5 of the VRA. That Section mandated that jurisdictions with a history of racial discrimination at the polling place must preclear all new election-related laws before they went into effect to make sure they were not discriminatory. In 2019, in a case known as Rucho v. Common Cause, Roberts’ Opinion for the Court’s majority held that gerrymandering for partisan purposes was perfectly legal under federal law, leaving only racial gerrymanders protected against. Now, he and the rest of the far-right activists on the High Court are gunning for Section 2, which is meant to protect voters in all 50 states, including from racial gerrymanders of the kind that Louisiana was found to have engaged in after the 2020 Census.
We’re joined today by two experts in election law and redistricting, from both the legal and political sides to try and make sense of all of this. Professor JOSHUA A. DOUGLAS teaches election law at the University of Kentucky College of Law. His latest book is, appropriately enough, THE COURT v. THE VOTERS: The Troubling Story of How the Supreme Court Has Undermined Voting Rights. DAVID DALEY is a Senior Fellow at FairVote.org, whose latest book, appropriately enough, is ANTIDEMOCRATIC: Inside the Right’s 50 Year Plan to Control American Elections.
In addition to breaking down Wednesday’s oral argument, we discuss why this case is being heard again the first place; how it demonstrates how much Section 2 of the VRA is still very much needed; why there is no specific time-limit after which legally-mandated, race-based solutions to discriminatory violations of the law and Constitution must be ended (as Justice Kavanaugh and others suggested); what is likely to happen if Section 2 is killed or merely eviscerated (at least a dozen minority members of Congress will almost certainly lose their seats in short order); and both if and, crucially, when the Court may issue its Opinion in this matter.
We dig into a lot of details and angles on all of this, so I’m not even going to try to summarize our conversation here. Please tune in for that. You’ll be much smarter in the bargain. But, suffice to say for now, Daley, who has written several books on Rightwing gerrymandering, notes that, if Section 2 is struck down, it “would be an electoral bonanza for the Republican Party.” He characterizes what will follow as an “unprecedented Gerrymander Armageddon”.
Douglas, who also has a podcast and newsletter titled “Democracy Optimist”, is not much more optimistic. “I think we are going to see a lot more states engage in this so-called mid-decade redistricting. We’re already seeing some states do this in response to President Trump trying to make sure that he doesn’t lose the House in the midterm elections,” Douglas explains. “I think you’re going to see a lot more states, Louisiana included, redraw their maps. And what this is going to mean is that you’re going to have a much more partisan skew. It is going to be even that much harder for Democrats to take back the House in 2026, just because race and party are so closely aligned in many states, particularly in the South.”
Daley believes a ruling is likely to come as early as January, in time for states largely in the old Confederate South, to rewrite maps before the 2026 primaries begin to prevent Black voters from being able to elect a candidate of their choosing next year.
Douglas, a self-described “glass-half-full kind of person” sees the potential for a bit of wiggle room on both the release date of an Opinion, and how it might be tempered by the ongoing Gerrymandering Wars already underway, thanks to Trump’s desperation to avoid a humiliating loss of Congress next year.
FINALLY TODAY… Breaking news, mid-show, as Trump’s former National Security Advisor turned Trump critic John Bolton is indicted on 18 federal charges related to his alleged retention of classified documents after being fired by Trump in 2019. And Desi Doyen joins us for our latest Green News Report, as the cost of Trump’s cuts to the National Weather Service begin to turn deadly…
Happy “No Kings” day!