Strict Scrutiny - Further Erosion

Episode Date: February 9, 2022

Deuel Ross, senior counsel at the NAACP Legal Defense Fund, joins Leah and Kate to discuss the Supreme Court’s decision allowing an election in Alabama to proceed under a legislative map that dilutes the voting power of Black Alabamians.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court's efforts to rapidly eviscerate the potential for a multiracial democracy. We are your hosts. I'm Leah Littman. And I'm Kate Shaw. And yes, this is another emergency episode. And yes,

that is because the Supreme Court has created yet another five-alarm fire emergency. And we are delighted to be joined, though not delighted about the occasion, by Duell Ross, Senior Counsel at NAACP Legal Defense Fund and the lead counsel to the plaintiffs in the cases we're going to be discussing. Welcome to the show, Duell. Thank you. I'm glad to be here. The reason we are here today, of course, is because of the Supreme Court's action in an Alabama Voting Rights Act case, Merrill v. Milligan and Merrill v. Castor. We're going to cover what the case is about, what the Supreme Court did, and what is on the horizon for this case and for the future of the Voting Rights Act.

Spoiler alert, democracy, you may be in danger, girl. So this case involves a Voting Rights Act challenge to Alabama's redistricting plan. That is the map drawn by the Alabama legislature following the 2020 census that would draw congressional districts for the upcoming election cycle and the next few election cycles. District boundaries determine where people vote and what people, you know, or persons a legislature represents. So, Duell, could you tell us about the challenge to Alabama's map? You know, what was the legal claim you brought against the map? And what did the district court kind of decide? Yeah, so Alabama in early November passed, as you said, a new congressional redistricting map

that essentially drew, Alabama has seven congressional districts, it drew one majority black district of the seven. And that means that black voters have about 14% of the representation in Congress, even though black voters after the latest census have about 27% of the voting age population and white voters percentage of the voting age population has dropped to around 63%, meaning that despite white voters only being 63% of Alabama's population, they now control about 86% of the congressional districts. And so based on that and Alabama's long history of undisputed racially polarized voting, which means that Black voters tend to vote for one set of candidates

and white voters tend to vote against those candidates. We challenge it under the Voting Rights Act. And it's sort of, as the district court said, this is a textbook example of a Voting Rights Act violation. It's undisputed that voting is racially polarized. It's undisputed that Alabama has a really horrendous

history of racial discrimination in voting and education, that black voter registration and turnout rates are lower than white voter registration and turnout rates, and that every black candidate to ever run for a congressional district in a majority white district has lost. And so the district court, three judges, two of whom were appointed by President Trump, unanimously said that Alabama's congressional maps violate Section 2 of the Voting Rights Act. We also had claims alleging that Alabama's map was a racial gerrymander and that Alabama's map was unconstitutional and, it was so straightforward that the court said that, you know, there's no doubt that there's a Section 2 violation in this instance. I'm teaching this to common law students now, like when there's another basis to reach a decision,

you don't need to reach a constitutional question. So the failure to address the constitutional claims does not in any way suggest that they were not also potentially winning claims, just that the Section 2 claim was so clear that there was no need even to consider the constitutional questions. Exactly. That's exactly what the court said. And one of the reasons the three-judge district court was so unanimous is because it was, as Dewell said, so clear under settled law that this is a violation of Section 2 of the Voting Rights Act. And I just want to mention for our listeners the name of the decision that we'll probably talk more about in a little bit, Thornburg v. Jingles, which established that it is a violation of Section 2 of the Voting Rights Act to dilute the votes of racial minorities through the drawing of legislative maps.

And so under that decision, it is, again, a claim that you violate Section 2 when you dilute the votes of racial minorities. I guess we've already kind of talked about some of the evidence that was in this case that established the vote dilution claim. And what is going to become important is plaintiffs can establish a vote dilution claim under jingles by showing the first part of a jingles claim, which is a minority group is sufficiently large and geographically compact to constitute a majority in a district. And that's kind of the only condition that is now at issue in this case. And plaintiffs bringing a Jingles claim can establish that the minority group is sufficiently large and geographically compact to constitute a majority by showing that

another reasonably compact majority minority district can be drawn consistent with traditional districting principles. And so again, you know, as Duell described the facts, Alabama's population is 27% Black citizens, but under the plan, Black voters only have the power to elect their preferred candidate in one of the seven districts. And you add on top of that, the fact that there is, as Justice Kagan's dissent described, a region that she described as the Black Belt. So that's a geographically compact district in which another majority minority district could be drawn consistent with traditional districting principles. Okay. So district court decides this is a vote dilution claim. What is Alabama's next move? What are they asking the Supreme Court to do? Alabama has basically gone to the Supreme Court and challenged this first jingles precondition, which, as you said, is about can you draw a second majority black district that is geographically compact? And because Alabama has what's called the Black Belt, which is essentially a set of counties that run directly through the state that are majority black, the reason why they're

majority black is because that is where black people were brought during the pre-Civil War period to work as slaves in the rich black soil, which is why it's called the Black Belt. And they have lived there essentially, for the most part, for the last 200 years or so. That's still where Alabama's black population is concentrated. And so it's very easy to draw a second majority black district that is both as compact or more compact than the state's own districts, that is contiguous, that it just runs directly through the state. And that also, you know, beats the state's plan under a number of the judicial redistricting principles. I mean, primarily even thinking about communities of interest, as the district court said, it is common knowledge in Alabama that the Black Belt is a

community of interest. And yet under the current plan, it's split four ways. Under the plaintiff's proposed plan, it would be split only between two majority Black districts. And the other thing I would add is that Alabama is essentially saying that it's impossible to do what the plaintiffs have shown it is absolutely possible to do. That is their argument in the Supreme Court. And I think it's also important to add that Alabama itself draws eight state board of education districts that have two majority black districts and that that one of those majority black districts looks very similar to the second district that we're drawing. It also goes from Mobile across the black belt. And so Alabama is saying that it's impossible to draw a district that it itself drew in the last couple of decades here. Wow, that's amazing.

The district court found that there was an obvious solution here, right, which is exactly as you're describing, the creation of a second majority Black district that would be as consistent or more consistent with these traditional redistricting principles as the state's offered plan. And we should say, right, redistricting, there are these principles that if you're not familiar with, and they sound kind of odd, but it's just these are values that are often used in map drawing cases and contiguousness, compactness. Courts don't like maps that look like weird shapes or that break up what you're describing as communities of interest, sometimes geographic,

sometimes socially cohesive communities. So the district court says there's an obvious solution. What is the district court direct to happen next before Alabama seeks the intervention of the Supreme Court? Yeah, what the district court said, and it was consistent with what the Supreme Court has said many times before, is that they essentially push back the deadline for when candidates have to file, you know, that they're interested in running for Congress by a couple of weeks. And then they also said that Alabama legislature has two weeks to draw new maps. And the court said that that was reasonable because one, the Alabama's attorneys at the hearing said that two weeks was sufficient time. And two, the legislature, when it drew the map last time, it only took about three days for them to, from start to finish, to enact these maps. So, you know, the court said that two weeks

is more than enough time. But before those two weeks were up, Alabama went to the Supreme Court. Got it. Okay, so very helpful. And I think all of that will prove extremely relevant in some of the writings that emanate from the Supreme Court suggesting that it would be, you know, unduly chaotic and burdensome and time-consuming and interfere with the election if things proceeded, as you just described, the district court ordering and Alabama even conceding they easily could. So is Alabama challenging the specifics of the district court's finding on existing law in the Supreme Court? Or is it trying to do something else? Like what is Alabama actually arguing in the Supreme Court? It's hard to say. I think that in their briefing, they basically had two arguments. And Justice Kavanaugh and Justice Alito said that they bought

one. And I think that the dissenters sort of saw the writing on the wall as to the other one. So the first argument that the state made was it's just too close to the election. And so even though the primary election is not until the end of May, so it's over three months away at this point, the general election is not until November. And so it's over about 10 months away now. They said that it's essentially too close to an election to change the rules for the election. And Justice Kavanaugh, joined by Justice Alito, sort of said that they are essentially it seems like they're going to be teeing up in the Supreme Court is that, you know, this this argument again, that it's essentially in order to draw a second majority black district. And I think that this, you know, very much ties into the Supreme Court's consideration of other, you know, things like affirmative action and other issues around race and how much you can and can't use race and particularly in disparate impact statutes, which the Voting

Rights Act essentially is. And so, you know, Alabama is really teeing up this issue of when you're trying to remedy racial discrimination, can you even think about race, or is thinking about race itself, make the remedy unconstitutional? Right, like is ensuring that black voters actually have representation and political power? Is that the real discrimination on the basis of race? And it has that odd parallel to the court's affirmative action and race conscious remedy jurisprudence, where they liken school integration efforts with racial discrimination. Okay, so you mentioned that

there's kind of writing on the wall, and then what the court did. So let's just say what the court did, and then talk about what lies ahead. So what the court did is it granted Alabama a stay of the district court's injunction. What does that do? It puts the injunction on hold, leaving Alabama's maps, which the district court unanimously concluded dilute Black Alabamians' votes. It leaves those maps in place for the time being. Second is the court noted probable jurisdiction. And that means it will hear arguments about whether Alabama's map violates the Voting Rights Act at some point

in the future. That might be this term. It might be next term. I'm not sure we're totally clear on that yet. But okay. So the stay, let's just do that one first. This was wild to me, the stay. I mean, the five Republican appointees did something so lawless and so radical on a Voting Rights Act issue, John Roberts did not join them. John Roberts said, I'm unwilling to stay this opinion because it's so clear it is applying settled law. Like we, Supreme Court, could take the case and decide to change the law in the way Alabama is asking us to do so after argument, etc. But he's unwilling to do so via a stay on the shadow docket, whereas the other five Republican appointed justices need to eat their marshmallow now and just destroy the Voting Rights Act like immediately. It was just astonishing to me that

they were willing to do this in such, again, a lawless fashion and do something so extreme that again, the author of Shelby County versus Holder is like you know what that one's too much for me and yet this is where we are so I won't ask you to react to that but we should we should say though um that he he decided like it was absolutely too insane for him to join but John Roberts has has definitely indicated, not that we even needed this confirmation, but if we did, we got it, that he does want to revisit and maybe refashion this area of law, right? So he did write a separate dissent. We will definitely spend some time with the Kagan dissent. But Roberts wrote a separate dissent, basically suggesting that in good time, like he's

not saying the marshmallow is not on the menu. He is just saying, like, I had calendared further erosion of Section 2 of the Voting Rights Act for OT 2022, which doesn't start till October. And this is a little sooner than I anticipated. So let's just do this in theigating this case, like it is important to approach it thinking that you may have a vote to peel off in John Roberts, but knowing everything we know about John Roberts, it will be an extremely uphill battle to peel off his vote when this case is actually heard in the merits. You also don't have to respond to that, do I? We don't have to be at all diplomatic in any of this. You might. Yeah. We don't know when the case will be heard. And we it sounds like at least Justice Roberts wants to hear it sometime this fall. I think that the reality is, is that we apply, that its attempt to draw an additional black district is subject to strict scrutiny, the district court said that it should survive strict scrutiny because it did not consider race more than was necessary to comply with the Voting Rights Act. And so, you know, I don't know what's

going to happen with the court. I think that the court can and should be consistent with its precedent and ruling on this, but we don't know. So the justices did not explain their decision to stay the injunction and leave these maps in place. But as we've alluded to, Justice Kavanaugh did issue a concurrence in the decision to stay, and that concurrence was joined by Justice Alito. Now, the main reason he focuses on for staying is what, you know, Duell described, namely, that this challenge somehow came too close to the election. We're going to talk about that one in a bit. But he gives kind of a litany of reasons for why he granted the stay. The first reason is he suggests it's really hard to run elections. And the implication he takes from this is apparently that states can do so lawlessly or in violation of the Voting Rights Act. So he says running elections statewide is extraordinarily complicated and difficult. And

it's like, okay, they're also very important and their laws governing elections and maybe we should comply with them. But that's one piece of the rationale. One point to make on this part of the Kavanaugh concurrence is he is saying this essentially as support for his claim that the reason that the court was correct to issue this stay was because this case called Purcell, which had sort of another shadow docket ruling, but that had been previously understood to basically limit federal courts' ability to change voting rules on the eve of an election, that that required the court to intervene here because what the district court did could be cast as changing voting rules on the eve of an election. So there are, I think, a number of distinct problems with characterizing Purcell as applicable and what, even if it is

somehow what the court did here as falling under the Purcell principle. But I guess I kind of had a threshold question, which is, am I right that this is, in addition to everything you said about the general election is not, you know, until November, the primary is not till the end of May. So, you know, even if Purcell were relevant, this is not in any way the eve of an election. That the court hasn't even used Purcell in cases like this where what's at issue is not a change in the way an election is run, but actually a new map. Is this a new application of the Purcell principle? I think that's right. I think that the Supreme Court, you know, as we said in our brief, actually in the last decade or so has not applied Purcell in very similar circumstances. So there were successful cases under both the Voting Rights

Act and under the Constitution challenging congressional and statewide redistricting plans that came, you know, decisions that came in January and February of an election year, and the Supreme Court declined unanimously in most cases to stay the decision. And so, as you noted, Purcell itself was a case about voter identification requirements. All the cases that were stayed in 2020 were about, you know, election, things like voter ID requirements, witness requirements, curbside voting. Those were stayed within a month or so of the election coming out. Here we have, you know, redistricting maps, which frankly, no one has ever voted under these maps

in Alabama because they're brand new. They were just enacted in November. Really, the people who this affects are a handful of congressional candidates who need to decide where they're going to run. And that in part can be dealt with by, you know, pushing back filing deadlines as the court had already done and, you know, giving candidates a heads up about what the new district lines will be. So, really, this is a novel application of the Purcell caseates a status quo that a federal court is going to disrupt in some way. And there's going to be some scrambling to conform to the new rule a court has announced. There will be a new map either way. People have moved in the state of Alabama. Like every state, there's been a census. And the one person, one vote cases from when the court used to try to enforce democracy

require redistricting so the population changes can be reflected. So whatever happens, there will be a new map. So it almost feels like this Kavanaugh concurrence is like a cutting and pasting of some justifications from an entirely different context that just don't even make sense here. Yeah, you're right. It doesn't. It really is, you know, it's this whole idea that it's going to cause any sort of problems or chaos with the election system. It doesn't make any sense given that, again, these are maps that no one's ever voted under. They're maps that had to change. And they're maps that, you know, what we're talking about are even just thinking about like some of the things that we tried to do with our proposed map was we're keeping counties as whole as the state did. So these are not things that, you know, we're not like splitting

through five counties or something like that. Most people, if you live in County X, you're going to vote in District Y. So this is not an election administration problem, despite what Justice Kavanaugh suggested. So having imported in this principle that doesn't seem to have any applicability to the districting context, he then applies it on a set of facts that are maybe the worst possible set of facts for the application of the principle. Because again, the Purcell principle rests on the idea that it's bad for federal courts to tinker with the election rules on the eve of an election. We are not on the eve of an election. You know, once these maps were instituted, Duell, like you brought this case on

behalf of the plaintiffs super quickly, and the district court, you know, had expedited proceedings. So, like, I don't understand how this could have been done any more quickly. I don't think it could have been done any more quickly. And I think one of the things to maybe even, obviously, we brought our case within a few days of the maps being passed, but another set of plaintiffs had actually brought a case about a month or two before the map was even enacted. And that's part of the reason why we were on an expedited schedule is because the court had already said, we're going to have a hearing in January to try to get, you know, to make sure that the decision came out as quickly as possible. And again, we had a seven-day hearing, 11 witnesses, hundreds of exhibits, thousands

of pages of filings all over the holidays, and the court ruled within basically a week and a half of the hearing ending. And so there is the reason why we're in the Supreme Court now on February 8th is because the district court moved so quickly and no other court has moved as quickly as this one did. And yet it was still too close to an election that is months away. And it seems to me to basically say, well, you can't get an injunction here on that timeline would essentially allow a state to use a map that violates the VRA with impunity for at

least one election cycle and immunize redistricting plans from judicial review like prior to the first election in which they are in place. And then once a state actually conducts an election under a map, then all of a sudden, you know, courts will say, well, gosh, we can't change the maps given that like states have conducted elections under them. And so it just seems like it cannot possibly be true that again again, on these facts, on this timeline, it is still pending in federal courts right now and challenging other maps. You know, some states haven't even passed their own maps yet. And so how would you even challenge those congressional or state legislative maps in states that haven't even gotten around to passing maps yet. It sort of, as you said, gives states at least one free pass for the 2020 elections. And there's sort of nothing that the court says that you should be able to do about it.

So I think we've dissected some of the problems with the kind of the Purcell part of the Kavanaugh concurrence. And I mean, we should pause to say the reason we're talking about the Kavanaugh concurrence is because Kavanaugh, joined by Alito, told us why he was voting to grant the stay. And the other three, right, Thomas Gorsuch and Amy Coney Barrett, didn't say a word. So did they, you know, slightly disagree with Kavanaugh, have a totally different theory? We don't know. And this is one of these cases that has left me with like the metaphysical question, which is, is it better to hear nothing or arguments that are as terrible as the ones that Kavanaugh made? And I genuinely feel torn about which is better. But so we have only the Kavanaugh opinion because the others interceded, blocked this reason district court opinion, which he said he issued in a week, but it's 227 pages or something, right, but didn't even have the courtesy to tell us what this

careful district court opinion got wrong. But anyway, so in the Kavanaugh concurrence, which is what we have to work with, he plays pretty fast and loose with the standards for even getting a stay out of the Supreme Court. So our friend, Commander Professor Steve Vladek argued very persuasively in pieces in Slate and on MSNBC.com that Kavanaugh basically concedes that the state did not satisfy the ordinary standards for staying in district court's opinion, right? You're supposed to basically, you know, show that there's a good chance you're going to win on the merits. Kavanaugh says at this preliminary juncture, the underlying merits appear to be close and at a minimum not clear cut in favor of the plaintiffs.

Okay, but they should be pretty clear cut in favor of the plaintiffs. Okay, but they should be pretty clear cut in favor of the state for you to intervene here. And he didn't say that they were. So is that a change to the stay standard? Is the change to the stay standard when a state is asking the court to stay an opinion invalidating a map under the Voting Rights Act? It's really hard to know what to make of it. But it does feel, I mean, I think Leah said lawless at the top. I mean, this part of the opinion felt unbelievably lawless to me. And Justice Kagan kind of went out of her way in a footnote to say, I note a few uncontroversial principles about stays pending appeal, like just kind of to remind him that these are the standards that you're

actually supposed to be applying, you know, before you grant a stay, Brett. And anyways, but that was a very odd passage. And Justice Kavanaugh also made what I took as like a judicial subtweet of Commander Professor Steve Vladeck describing the catchy but worn out rhetoric about the shadow docket, as if it's somehow, you know, bad to criticize the court for altering legal standards, you know, with unexplained, unreasoned orders. But yeah. Yeah, I think that the hard thing is, is that the court has, you know, as you all know, increasingly use stay motions and things that, you know, just even thinking about the the practice, how these things are written, right, the the state filed its brief on a friday and we had until a wednesday to file our reply and they filed their response i think like a couple of hours later this is not you know this is not how you do reasoned uh decision making uh on the fly where all the parties are sort of rushing to to get something in response to the court's

concerns and so you, it is distressing that the court is sort of both that Purcell is being used in a way that I don't think anyone, the original Purcell decision was unanimous, right? I don't think that anyone foresaw it being used in this way to foreclose any relief for any challenge to election laws during an election year. So it's difficult, but it is the reality of the situation that we're in before the court. And Congress at least has, whatever they may do, Congress, at least in theory, has the authority to try to fix it. So let's pivot in the time we have left to Justice Kagan's epic dissent in this case. Leah, you want to start us

off? So the only net I have on this dissent is that it shouldn't have said, I respectfully dissent. Other than that, perfect. So, you know, the opening kind of passage says, with respect, I again dissent from a ruling that undermines Section 2 and the right it provides. So we've already alluded to, you know, how this court has eviscerated, you know, other components of the Voting Rights Act. And here she was citing her dissent in Brnovich v. DNC when the court weakened the protections that the Voting Rights Act applies. A few notable passages in the dissent to highlight, she said, the court's decision does a disservice to Black Alabamians who, under that precedent,

have had their electoral power diminished in violation of a law this court once knew to buttress all of american democracy um she acknowledges that the district court here did everything right under the law existing today and staying its decision forces black alabamians to suffer what under that law is clear vote dilution so definitely worth a read yeah it's a great dissent 12 12 pages. I think one thing that often gets lost in sort of like the headlines about this is that these, you know, we are representing real people in Alabama. And that is, you know, particularly the Black Belt is a community that has real significant issues of infrastructure, of basic access to just healthcare, to clean water, to all the things that, you know, frankly, the rest,

the members of the congressional delegation from Alabama, except for Representative Sewell, who's elected from the only existing majority Black district, are not paying attention to. And so, you know, this is, I'm very glad that Justice Kagan highlighted the fact that Black voters are going to have to continue to suffer under this map, because this is not about getting Democrats another seat. This is about the Black people who have been forced to live under a system in which they don't have access to basic resources and they don't have representation in Congress to raise those issues in front of our federal legislature. So it's disheartening for all the reasons that we're worried about the future of the Voting Rights Act, but it's also disheartening because for the people who this means the most to, they are not going to get the representation that of Black Alabamians. And the district court found that was clearly the case with this map. And the Supreme Court, without, again, even explaining why,

just brushed that aside. I think it's also important in thinking about what the Voting Rights Act does to recognize that jingles, you know, the case that recognized and established the boundaries of vote dilution claims, directed courts to consider how election laws interact with social and historical conditions to create and replicate inequalities. So the kind of representation desert, you know, that Duell is describing and what that results in as far as infrastructure and other services to Black Albanians is part of what recognizing vote dilution claims was designed to address. So before we lose you, can we just take you for just a minute on the kind of docketed case and the path ahead? You expressed some optimism that even on a completely overhauled version of the

test for a vote dilution claim under Section 2, you feel confident that you guys still have a winning claim. Can you talk through that just a little bit? Yeah. I mean, I think that what I was saying is that what the court seems to be at least open to is this idea that strict scrutiny applies anytime you use race, even if you are just an expert drawing a new majority Black district, that strict scrutiny somehow applies to this private exercise of an expert. And so what the district court said is that, look, we'll take for granted, we don't think that standard applies. The Supreme Court has never said that that standard applies to, you know, this proposal, you proposing a new map. But even if it does, they went through

quite a lengthy analysis to say that this map is not, A, is not race conscious. And to the extent it is, that that is constitutional because the Voting Rights Act provides a compelling state interest to consider race. And so that's why I would say that even if the court were to adopt a stricter standard than exists today, there is, at least the district court did a very thorough analysis about why that should not defeat the plaintiff's claim. As I said, I don't know what will happen in the Supreme Court, but I think the district court did all that it could do to make clear that, look, whatever the standard is, the plaintiffs met it in this case. And as the district court said, it wasn't even close. So we remain hopeful, but you never know.

We are rooting for you. And we know that the plaintiffs are represented by a wonderful lawyer and a wonderful organization. And we know that they will have, you know, their case presented in the best way possible. Dwell Ross, thank you so much for joining us and shedding some light on this case. We really appreciate you taking the time. Thank you all for having me. And thank you to my co-counsel at the ACLU and Hogan Lovell and my colleagues at the Legal Defense Fund, who all did really important work here too. Hear, hear. Thank you to Democracy for as long as you are here. Thank you to the lawyers at NAACP Legal Defense Fund, as well as other organizations representing the plaintiffs in this case. Thank you again to Dewell Ross for joining us on what has been, I'm sure, a very busy few days for him. Thank you to Melody Rowell, our

producer, for putting together another emergency episode. And thank you to Eddie Cooper for making our music.