Tangle - The Alabama gerrymandering case.

Episode Date: October 6, 2022

We're covering the voting rights cases in front of the Supreme Court. Plus, a preview of tomorrow's edition. No listener question today.Read Tangle's previous coverage on gerrymandering here.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have a nice day” story here.Today’s clickables: Quick hits (2:52), Today’s story (4:04), Right’s take (13:36), Left’s take (9:37), Isaac’s take (18:51), Under the Radar (23:22), Numbers (24:14), Have a nice day (25:07)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. Twas the season of chaos, and all through the house, not one person was stressing. Holla differently this year with DoorDash.

Don't want to holla do the most? Holla don't. More festive, less frantic. Get deals for every occasion with DoorDash. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu.

It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the voting rights gerrymandering section two case that's before the Supreme Court out of Alabama. Very interesting and complicated case. I happen to have some pretty strong feelings about this today. But before we do,

jump into that a couple notes. First all we have a correction i love those i don't i hate them from yesterday's quick hit section we noted that the debt the national debt in the united states had passed 21 trillion dollars for the first time in fact the debt passed 31 trillion dollars not 21 there was nothing exciting here there was just a typo the two was a three they're next to each other on the keyboard and it slipped through and i read it and i didn't catch it and i hate corrections like that uh however we do note them and this was big enough one that we want to make a note of it this is our 68th correction in tangles5-week history and our first correction since August 16th,

which is pretty good, about six weeks. I track corrections and place them at the top of the podcast in an effort to maximize transparency with readers. Also, a quick note about tomorrow. Our midterm coverage is beginning tomorrow in our Friday editions. For the month of October in our newsletter, we are going to be focused on the midterms. All of our newsletters until November 8th will have to do with the midterms and voting in the midterms and what's going on. So we're going to be starting tomorrow with a kind of table setting edition for the 2022 midterms. Now that all the primaries are done and everything, what are the matchups? What are the big races? What are we watching? What are the dynamics at play? What's at stake? All that stuff. That's going to be in one big edition tomorrow. I think it's going to be a really good edition and an important one if

you care about the elections, which I know many of you do. Reminder that those Friday edition newsletters do not yet appear in podcast form, something we're thinking about how to do in the future. I know many of you have asked that, but if you want to receive that Friday edition, you have to be a Tangle subscriber. That means a paid member. So go to readtangle.com membership to do that. All right, those are our two announcements out of the way. We'll jump in with some quick hits. First up, OPEC+, the coalition of oil producers that the U.S. is not a part of, announced that it is planning to cut 2 million barrels of oil production a day starting in November in an effort to increase the price of oil as prices have been falling over the last few

months. Number two, SpaceX launched four new crew members to the International Space Station alongside NASA, the sixth time it has done so under a NASA contract. Number three, new FBI data shows murder rose by 4.3% in 2021, while overall violent crime fell by 1%. However, roughly half of U.S. police agencies, including those in Los Angeles and New York City, are yet to submit their data. 4. The United States redeployed an aircraft carrier to the waters near the Korean Peninsula after North Korea fired a ballistic missile over Japan. 5. A federal appeals court affirmed a ruling that DACA was illegal and blocked new applicants.

However, the court also left it in place for existing DREAMers and called for a lower court to review the program for changes. On the second day of its new term, the Supreme Court heard arguments on a case that could well end up decim on the Voting Rights Act. districts is majority Black. On Tuesday, the Supreme Court heard arguments in Merrill v. Milligan, a case that could have an immense impact on the Voting Rights Act. The background of the case is that Alabama has seven seats in the U.S. House of Representatives. In 2021, shortly after the 2020 census, the Republican-controlled legislature released its new maps for those districts. The maps were similar to the ones drawn in 2010 and 2000.

However, despite 27% of the state's residents being Black, only one of the seven districts, about 14% in the map, is majority Black. A group of registered voters, the NAACP, and a multi-faith organization in Alabama all joined the lawsuit over the map, saying it violated Section 2 of the Voting Rights Act, which bars a denial or abridgment, that's a curtailment, of the right to vote based on race. In their case, the plaintiffs argued that the state illegally gerrymandered as many Black voters into a single district as possible, while dispersing the remaining Black voters across the other six districts, effectively diluting their voting power. Instead, the plaintiffs argue, based on

population, there should have been two congressional districts where minority voters were a majority. For an explanation of gerrymandering, you can see our previous coverage. There is a link to it in today's episode description. A three-judge panel, including two judges who were appointed by former President Trump, agreed that the map violated Section 2 of the Voting Rights Act. The state filed an emergency appeal to the Supreme Court to freeze that ruling, which it did, allowing Alabama to move forward with its current map for the 2022 primary and general elections. Then the Supreme Court set a date to hear the case, and oral arguments in that case began on Tuesday. Alabama is arguing that Section 2 does not mean the state is obligated to draw a majority-minority district where it can be drawn, especially when you have to sacrifice race-neutral

redistricting criteria to do so. The state says that interpreting Section 2 to require the state to create another majority black district would violate the Constitution precisely because it would create a race-based targeting and sorting process, which would violate the 14th and 15th Amendments. Instead, the state says the question is if the political process is equally open, and it argues that its map was drawn using race-neutral redistricting criteria, including a goal to draw lines as close as possible to previous districts. In order to change the map, the state argues the plaintiffs must be able to draw lines that create second minority-majority districts without prioritizing

race. On the other side, the plaintiffs argue that Section 2 has a limited but important role and that it requires consideration of race when pervasive racial politics would otherwise deny minority voters equal electoral opportunities. The plaintiffs maintain that decades of precedent demonstrate race plays a role in determining when a redistricting plan violates the Voting Rights Act. Additionally, the plaintiffs argue that Section 2 does not violate the Constitution as it is currently applied. It argues that a state does not violate Section 2 by failing to create as many majority-minority districts as possible, and no such standard has ever existed. If the justices are concerned about how Section 2 is being applied, the plaintiffs

argue, they could reinforce the limits of how it should be tested, not jettison the standard entirely. In play are previous Supreme Court rulings. In 1986, in Thornburg v. Gingles, the Supreme Court created a multi-part test to determine if Section 2 was being violated via vote dilution. That test includes questions like whether a minority group is big and compact enough to form its own district, or if the totality of circumstances indicate it's violating the Voting Rights Act. Chief Justice John Roberts justified taking up this case in part because the Gingell standard has created, quote, considerable disagreement and uncertainty, end quote, with vague and difficult to apply tests, which he wants the

court to revisit. In Tuesday's oral arguments, it appeared the court was going to side with Alabama, allowing the maps to stand, but seemed skeptical of making a far-reaching change to Section 2 or the Voting Rights Act. Today, we're going to explore some arguments from the left and the right, and then my take. A quick note, we will be skipping today's reader question to give this story some more space. All right, first up, we'll start with what the left is saying. In the Washington Post, Katrina Vanden Heuvel said the Supreme Court was reconvening its assault on democracy. The Voting Rights Act, one of Reverend Martin Luther King Jr.'s greatest legacies, is a prime target, she said. Five conservative justices joined in 2013 Shelby County v. Holder to gut the act's core enforcement mechanism, She said, Writing for the court, Chief Justice John G. Roberts ignored the detailed record and common sense

to make his own finding that racial discrimination was no longer a problem in the United States. own finding that racial discrimination was no longer a problem in the United States. Now, the act's prohibition of voting practices that result in denial or abridgment of the right to vote on account of race is at risk. Merrill v. Milligan involves an Alabama redistricting plan that ensures that African Americans, who make up more than one-fourth of the state's population, will constitute the majority in just one of its seven congressional districts, she said. Having engaged in blatant racial gerrymandering, the state of Alabama now argues that race can't be used as a factor to draw up a fairer map. In Vox, Ian Millhiser said it looks like the court is ready to weaken,

but not destroy, the ban on racial gerrymandering. Republican appointees Chief Justice John Roberts and Justice Amy Coney Barrett both pointed out that Alabama Solicitor General Edmund LaCour's proposed reading of the Voting Rights Act cannot be squared with the law's text, Millhiser said. Even Justice Samuel Alito, the court's most reliable partisan, acknowledged that LaCour offered some proposals that are quite far-reaching and others that are more basic, and he seemed to urge LaCour to stick to the more basic ideas. None of this means that Alabama is likely to lose this case. But several of the justices, including Roberts, Barrett, and Justice Brett Kavanaugh,

seemed to spend the morning casting about a way to rule in Alabama's favor without explicitly overruling nearly four decades of established voting rights law, stretching back to the court's decision in Thornburg v. Gingles. Based on Oral Arguments Tuesday, the most likely outcome in Merrill is a narrow decision for Alabama, bailing out the maps drawn by the state's Republican-led legislature, but holding off for another day the question of whether to legalize many forms of racial gerrymandering en masse. In Slate, Mark Joseph Stern argued that Ketanji Brown Jackson used originalism to pierce the state's argument. For decades, conservative justices have made a specific point to support

many of their rulings on race. They insist that the Constitution is entirely colorblind, prohibiting any consideration of race under all circumstances, Stern said. In a series of extraordinary exchanges with Alabama Solicitor General Edmund LaCour, Jackson explained that the entire point of the 13th, 14th, and 15th Amendments was to provide equal opportunity for formerly enslaved people, using color-conscious remedies whenever necessary to put them on the same plane as whites. It was a master class in progressive originalism that illustrated exactly why Jackson is such a crucial addition to this ultra-conservative

court. Jackson went on to note that one purpose of the 14th Amendment was to provide a constitutional foundation to the Civil Rights Act of 1866, which quote, specifically stated that citizens would have the same civil rights as enjoyed by white citizens. Jackson is plainly correct. The framers of the 14th Amendment, which guarantees equal protection, and the 15th Amendment, which bars race-based voting discrimination, explicitly supported race-conscious remedies to civil rights violations, Stern said. They intended the post-Civil War amendments to guarantee equal opportunity to black citizens, combating deep-rooted prejudice of the white race against black Americans to help them secure a just

and constitutional position. As legal historians have persuasively explained, the framers readily took race into account when necessary to redress past discrimination. All right, that is it for what the left is saying, which brings us to what the right is saying. The right hopes to see Alabama prevail, arguing that the current precedent is convoluted and difficult to apply. Some say the plaintiff's argument amounts to precisely the kind of racial prioritizing that is prohibited by the Constitution. Others criticized Justice Jackson's faux-originalism. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a

criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions

can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca. protection is not guaranteed. Learn more at flucellvax.ca. 6% of the state's voting age population is black, the board wrote. A federal court said in January that Alabama is required by the Voting Rights Act to create a second-majority black district, which would be 29% representation. Is this the law, or is it another misguided effort in what Chief Justice John Roberts once called a sorted business that is divvying up of us by race? Section 2 of the VRA bans voting practices that aren't equally open or that give racial minorities less opportunity to elect representatives of their choice. The high court has blessed claims of vote dilution with the operative precedent being Gingell's. It sets forth a multi-part test. Is the minority group big and compact enough to be its own district?

Is it politically cohesive? Is a VRA violation indicated by the totality of the circumstances? On the other hand, Section 2 explicitly says it doesn't create any sort of right to have members of a protected class elected in numbers equal to their proportion in the population, the board notes. More recent Supreme Court rulings have said gerrymandering by race is odious, and so strict scrutiny applies if it is a predominant factor for mapmakers. What distinguishes a district favoring black voters who happen to be Democrats from a district favoring Democrats who happen to be black? In the Wall Street Journal, James Pearson said the Supreme Court has a chance to reaffirm the colorblind ideals behind the Voting

Rights Act. Alabama argues that the plaintiffs drew their map using a racial outcome as the main goal, a practice the Supreme Court has discouraged in previous cases. The plaintiffs' proposed new district runs from one side of the state to the other, fractures local communities, and cherry-picks voting precincts with black majorities to ensure the election of a black representative, Pearson wrote. Congress passed the Voting Rights Act to protect minority voters by banning literacy tests, overly cumbersome registration requirements, and the like. But the Supreme Court soon expanded the act's reach to cover election rules and the drawing of districts. As a result, the Supreme Court has wrestled for decades with redistricting issues. In Gingles v. Thornburg, the court advanced a vague multi-step test to demonstrate dilution

of minority votes. A minority group must show that it is sufficiently large and compact to form a majority in single-member districts, and it must show that blacks and whites vote cohesively in opposite directions. These claims, if met, would entitle the group to one or more minority-majority districts, Pearson said. But it appears likely that the court is ready to revisit these tests. Justices Clarence Thomas and Neil Gorsuch have argued that Section 2 of the VRA refers only to barriers to voting and doesn't extend to redistricting or claims of vote dilution. That approach, if accepted by a majority, would foreclose most such litigation. It would also be consistent with the language of Section 2, which bans state-enforced

barriers to voting on account of race. In National Review, Carrie Campbell Severino and Frank Scaturro called Justice Jackson's arguments faux-originalism. Justice Jackson's position seems to be that line drawing based on race is not only permissible, but required under the law. She asserted that the framers adopted the 14th Amendment's Equal Protection Clause and the 15th Amendment in a race-conscious way. The record is clear that Congress was working to remedy flagrant racial discrimination under the law, particularly the discrimination of the Black Codes in the former Confederate states, which aimed to relegate those who had been emancipated to a status that closely resembled slavery, they said. The very remedy employed by Congress to override the Black Codes was the Civil Rights Act of 1866,

for which the 14th Amendment was meant to provide a firm constitutional foundation. Jackson cited this law without acknowledging that it was actually meant to eliminate racial distinctions, they said. Even putting aside the whites who receive rations from the Bureau, it is clear that benefits targeting formerly enslaved people in a country where the institution of slavery was race-based would go to African American recipients based not on their race, but on their past enslavement. To remedy that was not to create any new racial category in the law. The debates over the Reconstruction Amendments and the laws meant to enforce them are filled with statements by supporters of those measures articulating the intent of abolishing racial distinctions in law. That included the most prominent supporter in the House of

Representatives, Thaddeus Stevens, who, during debate over the Civil Rights Act, described as quote, the genuine proposition, the one I love, that all national and state law shall be equally applicable to every citizen and no discrimination shall be made on account of race or color, end quote. All right, that is it for the left and the right are saying, which brings us to my take. than the writer saying, which brings us to my take. All right. This case is extremely frustrating. Before I get into the merits of the legal arguments here, which I think can kind of bog down to me what's the bigger, more important picture, I just want to say unequivocally that Alabama's map should be illegal. If you've read any of my writing on gquivocally, that Alabama's map should be illegal. If you've read any of my writing on gerrymandering before,

that opinion probably won't be a surprise to you. As has become common across the United States, the Alabama state legislature is picking its voters, not the other way around. Gerrymandering is the most obvious threat to democracy there is. This is not something unique to Republicans in Alabama, and I'm not pretending that it is, but it is farcical to act like something else is happening here. This is not some good faith attempt to draw fair maps or ensure that Alabama voters are represented equally. It's a clear-cut case of gerrymandering. The primary defense of

this map, that it adheres to previously drawn lines, is rather infuriating if you think about it for even a second. Given Alabama's sordid history of diluting black votes and discriminating against black voters, of course a map that stays true to previous lines would still be a kind of racial gerrymandering. Again, the lower court panel, which included two bona fide conservative judges appointed by former President Trump, spent 225 pages explaining that they did not view the question of whether Alabama violated the Voting Rights Act to be, quote, a close one. Whether it is the absurd-looking maps in New York drawn by Democrats, or the maps in Alabama like the ones pictured in today's newsletter, let's please not pretend it's some great mystery about what's going on. What's frustrating about all of this is that it's hard

to parse racial gerrymandering from partisan gerrymandering. Since black voters predominantly vote with Democrats in Alabama, a map that dilutes the vote of black voters can easily be described as a map that dilutes the vote of Democrats, which is not something Section 2 of the Voting Rights Act is going to stop. On that question, I will not pretend the case is simple. If the court's decision is to revisit the precedents set by Gingles and re-evaluate the tests that case set, we're opening up an entirely new can of worms. As it stands, I think Alabama has a strong argument that creating race-based sorting or racial targets for a district, i.e. ensuring district representation are proportional to race, is very problematic. But the reverse should also be true. Creating district lines that can clearly be linked to

an attempt to dilute the vote of certain races, which this map can, should be illegal. As this court has demonstrated, and many Americans across the political divide, including me, seem to agree, the function of the Supreme Court is supposed to be enforcing the laws written by Congress and the text of the Constitution. Last term, whether it was abortion rights not being explicitly laid out in the Constitution or the Environmental Protection Agency not having explicit authority in our energy sector, the court's majority argued in a wide range of cases to embody this ideal. But look at what we have in this case. The Voting Rights Act says explicitly that any law is illegal which, quote, results in a denial or abridgment of

the right of any citizen of the United States to vote on account of race or color, end quote. In 1980, the Supreme Court ruled that Voting Rights Act plaintiffs must prove racist intent in order to prevail. But in 1982, Congress inserted the results-oriented language for the very purpose of overruling that decision, saying it did not matter whether a law was not motivated by racial bias, but only if it resulted in racial bias. In a more logical world, we'd recognize that gerrymandering is a form of voter obstruction, since it deprives groups of proper representation. With any luck, the court's ruling will be narrow here, one that focuses on the inability of the plaintiffs to create a second,

predominantly black district while using only race-neutral computer simulations. What's unfortunate, irrespective of this case's particulars, is that such a map is allowed in the first place, and that the voters of Alabama are being forced to operate under such a map in this year's election, despite the fact the very panel created to adjudicate such gerrymandering struck the map down. This story is another anecdote that exposes the cracks in our democratic system, cracks that need to be sealed in order to restore voters' faith in how our representatives are elected. Alright, that is it for my take. Obviously, I feel strongly about today's issue. Next up is our under the radar section. Across the developing world, China holds significant sway over the financial futures of many nations, while also facing the challenge of recollecting debts it may never be paid. In a new article from

the New York Times, Keith Bradshaw examines how countries from South America to Africa to the Middle East turned to China as the lender of choice in the past decade. Now, with inflation ravaging many economies, China can decide whether to lend more, cut them off, or forgive small portions of the debt. Those debts and China's attempts to help countries navigate them collide with the United States' own financing of other nations' development. The New York Times has the story, and there's a link to it in today's episode description. Alright, next up is our numbers section. The percentage of black Alabamians who are Democrats or lean Democrat is 80%. The percentage who have no lean is 9%. The percentage who are Republican

or lean Republican is 11%. The number of consecutive days gas prices declined before starting to tick back up was approximately $100. The price of a gallon of gasoline in Los Angeles on Monday was $6.49, a record high. The average price of a gallon of gasoline nationally right now is $3.86. The average price of a gallon of gasoline a month ago was $3.77. The number of so-called dreamers who will remain protected from deportation despite a court's ruling that DACA is illegal is 600,000. All right, that is it for our numbers section. Last but not least, our have a nice day section, a really cool one. Tim Lamont, a young scientist who is helping restore coral reefs,

has made an incredible discovery. If he plays the sound of healthy coral reefs back onto reefs being manually restored after damage, the reefs come back more quickly and with more species. Lamont is using the remarkable finding to accelerate restoration progress by recording sounds of healthy coral reefs and then playing them in areas where reefs are in recovery. Many of the noises have never been recorded before and the fish making these calls remain mysterious, despite the use of underwater speakers to try to talk to some, BBC reports. You can listen to an interview with Lamont with a link inattering of advertisers. Thank you so much. If not, either way, we'll be right back here tomorrow on Monday. Have a great weekend. Peace. Our podcast is written by me, Isaac Saul,

and edited and produced by Trevor Eichhorn. Our script is edited by Ari Weitzman, Sean Brady, and Bailey Saul. Shout out to our interns, Audrey Moorhead and Watkins Kelly, and our social media manager, Magdalena Bokova, who designed our logo. Music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our website at www.readtangle.com. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Thanks for watching. buried history and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada,

which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.