Tangle - The Supreme Court's voting rights ruling in Alabama.

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Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we are going to be talking about the Supreme Court voting rights ruling having to do with a case in Alabama and the Voting Rights Act. Kind of a surprise ruling, certainly was a surprise to me, and I know some other people who are looking on. Before we jump in, though, as always, we'll start off with some quick hits. First up, former President Trump will be arraigned in Miami today for charges related

Starting point is 00:01:57 to his alleged mishandling of classified documents. He's expected to plead not guilty. Number two, J.P. Morgan agreed yesterday to pay $290 million in settlement to victims of Jeffrey Epstein in hopes of settling claims that the bank knowingly supported his crimes. Number three, Senator Chuck Grassley, the Republican from Iowa, said Monday that a Burisma executive who allegedly paid Joe and Hunter Biden kept 17 audio recordings of his conversations with them as an insurance policy. Number four, Texas said it will put floating barriers in the Rio Grande to protect the border from crossers. Number five, Washington Post publisher and CEO Fred Ryan announced that he was stepping down. The Supreme Court has issued an opinion in a crucial voting rights case. The justices ruled that Alabama's redrawn congressional map likely violates the Voting Rights Act.

Starting point is 00:03:01 A lower court said the map discriminated against black voters. The U.S. Supreme Court today struck down Republican-drawn congressional districts in Alabama that civil rights activists say discriminated against black voters. The ruling was a surprising departure from court opinions over the past decade, narrowing the scope of the Voting Rights Act. Only one of the seven districts in Alabama is majority black. Lower courts had said the state needs to add another district. And today, the Supreme Court, in a five to four decision written by Chief Justice John Roberts, joined by Brett Kavanaugh and the three liberal justices, said, in fact, that Alabama's map was discriminatory. On Thursday, the Supreme Court ordered Alabama to create a second majority

Starting point is 00:03:47 black district, throwing out its gerrymandered congressional map and upholding Section 2 of the Voting Rights Act, also known as VRA. The 5-4 ruling in Allen v. Milligan was a surprise to many court watchers who expected the court to rule in favor of the Republican mapmakers in the state. At question was a gerrymandered congressional map drawn in Alabama in 2021. The map gave Black voters a majority in just one of the state's seven districts, despite African Americans comprising roughly 27% of the state's population. Several Alabama voters and a state senator sued over the map, arguing that it violated Section 2 of the Voting Rights Act, which forbids

Starting point is 00:04:25 any election law that results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. Specifically, they argued that the map intentionally packed Black voters into a single district and dispersed other Black voters across the remaining districts to dilute their vote power, this is a common gerrymandering practice called pack and crack. Last year, a three-judge panel, including two Trump-appointed judges, ruled that the map violated a framework laid out in a previous Supreme Court case, Thornburg v. Gingles. However, Alabama sought emergency relief at the Supreme Court, arguing that it was too close to the 2022 midterm elections to redraw

Starting point is 00:05:05 the map. The court agreed, allowing the map to apply for the 2022 midterms. Republicans went on to win six of Alabama's seven House seats in November. At the time, Chief Justice John Roberts joined liberals in dissent, arguing that he believed the lower court's decision was consistent with current voting rights law. Brett Kavanaugh joined Justice Samuel Alito and other conservative justices, arguing that freezing the ruling was consistent with the Purcell principle, which holds that courts should not change election law shortly before an election. But he did not pass judgment on the map itself. After oral arguments in the case, Kavanaugh ultimately joined Roberts and three liberal justices to deliver a 5-4 majority to the plaintiffs suing Alabama over the map. The majority ruled that lower courts had

Starting point is 00:05:50 successfully applied a three-part test, established in the 1986 case Thornburg v. Gingles, to evaluate claims brought under Section 2. That test requires any challenge to show that there are enough Black or minority voters living in a sufficiently compact area that a new district could be plausibly drawn. It must also show those voters are politically cohesive and that the state's white voters tend to vote as a bloc to defeat the preferred candidate of the minority group. Finally, the court must also consider state-specific factors like historical discrimination that would indicate the process has not been equally open to voters of color. In arguments, Robert rejected two of the state's claims, including that the plaintiff's new maps failed to keep the Gulf Coast region of the state intact and that the plaintiffs

Starting point is 00:06:36 failed to retain the core of previous maps. On the latter, Roberts argued that failure to adhere to previously used redistricting plans cannot defeat a Section 2 claim as a requirement for similarity would immunize from challenge a new racially discriminatory redistricting plan. Instead, Roberts argued that the court should apply the precedent of the Gingell's framework to consider whether Alabama's computer-generated maps violated Section 2 of the Voting Rights Act. generated maps violated Section 2 of the Voting Rights Act. In his dissent, Justice Clarence Thomas argued that the question was whether Section 2 requires Alabama to intentionally redraw long-standing districts so that Black voters can control a number of seats roughly proportional to the state's Black population. Section 2 demands no such thing, Thomas argued, saying it didn't apply to redistricting at all, but only to the laws and policies that regulate access to the ballot or counting the ballot. If Section 2 were to apply

Starting point is 00:07:31 to redistricting, Thomas argued, this interpretation would be unconstitutional because it requires the state to allocate political power based on race. In fact, Section 2 explicitly says that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion of the population. In its ruling, the majority acknowledged this idea, writing that forcing proportional representation is unlawful. This is the third time in recent memory the court has taken up a case related to the Voting Rights Act. In 2013, the court struck down Section 5 of the VRA in Shelby County v. Holder, which required states with a history of discrimination to get approval from

Starting point is 00:08:10 the federal government before making changes to their voting laws. In 2021, in Brnovich v. Democratic National Committee, the court upheld two voting rights provisions in Arizona that limited third-party ballot collection and out-of-precinct voting. The ruling is expected to invite fresh challenges to other gerrymandered maps in states like Louisiana, South Carolina, and Georgia. Overall, the ruling could end up netting Democrats two to four additional congressional seats, according to redistricting expert Dave Wasserman. Today, we're going to take a look at some reactions from the left and the right, and then my take. First up, let's start with what the left is saying. Many on the left support the ruling, arguing that this should not have been a closed call. Some say this ruling is even better than it looks, with reverberations that will extend to other states thanks to new redistricting technology. Others argue that the

Starting point is 00:09:14 celebration should be muted, given what the court has already done to the Voting Rights Act. In Vox, Ian Millhiser said the Supreme Court did something genuinely shocking by handing down a surprise victory for voting rights. The ruling preserves longstanding safeguards against racism in U.S. elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state. It shouldn't be controversial for a court to follow precedent, but this is the Roberts Court we are talking about, which has been extraordinarily willing to toss out seminal precedents and to dismantle the Voting

Starting point is 00:09:49 Rights Act. Precedent from Thornburg v. Gingles requires voting rights plaintiffs to clear several hurdles to win a case like this. They must show that there are enough Black voters living in a sufficiently geographically compact area that such an additional district could plausibly be drawn, Millhiser said. They must show that these voters are politically cohesive, meaning that they tend to vote together for the same candidates, and that the state's white voters also tend to vote sufficiently as a bloc to enable it, to defeat the black voters' preferred candidate. Suffice it to say that Roberts seems to agree with the lower court's conclusion that these plaintiffs meet those conditions and that this is not a close case. In Slate, Richard H. Pildes said the decision is even better than it looks.

Starting point is 00:10:35 It's tempting to view this decision as merely an affirmation of long-standing requirements of voting rights doctrine, but it will actually expand the effective scope of the VRA. With today's high-powered computers, it's possible for plaintiffs to ask an algorithm to create a new VRA district that is consistent with the state's general redistricting criteria. Indeed, that is precisely what the experts did in the Alabama case. This same technique was used in other southern states to demonstrate a new VRA district could be created while still adhering to the state's practices about how compact districts have to be and the respect owed to keeping cities, towns, counties intact to the extent possible. This new technology makes it possible to find VRA districts that might have been hard to identify

Starting point is 00:11:20 in the past, Pildes said. That's why there have been new challenges after the 2020 round of redistricting under the VRA in a number of Southern states, such as Georgia and Louisiana. In the wake of the Supreme Court decision, we will now have to see how many of those also turn out to be successful. In the Washington Post, Melissa Murray and Steve Vladek said you have a right to be happy, but it's no victory for democracy. The decision was met with relief, even giddiness being hailed as a victory. Yes, the court's conservative supermajority failed to undermine voting rights, but this is not an unalloyed victory, they said. As an initial matter, the decision does not strengthen the act, as some pundits claim. It merely preserves the status quo.

Starting point is 00:12:02 And the status quo is that this court, over the past 10 years, has severely hobbled the law and its protections for minority voters. The court already eviscerated preclearance rules, which has allowed an uptick in suppressive tactics. In this case, and others across the South, the court gave an emergency stay to allow these maps to be used in the 2022 midterms after two federal courts had struck them down. Taking these rulings together and others following them, as many as seven House seats across four

Starting point is 00:12:30 states should have been majority-minority districts, and thus strong candidates for Democratic victories, and were safe Republican House seats instead, they wrote. Given that Republicans have a razor-thin 10-seat majority in the House, it's not preposterous to suggest that the court's unexplained interventions in 2022 were responsible for which party controls the House today. That's problematic in the abstract, but it's utterly indefensible now that a majority of justices have concluded the lower courts were right in the first place. All right, that is it for what the left is saying, which brings us to what the right is saying.

Starting point is 00:13:18 Many on the right criticized the ruling, saying the court actually endorsed race-based redistricting. Some argue that the ruling actually creates more confusion and less clarity. Others focus on the political implications, arguing that Republicans need to prepare to lose some seats in the South and aggressively gerrymander in states where there are opportunities to. The Washington Examiner editorial board said the Supreme Court just endorsed race-based redistricting. The Supreme Court is essentially ordering the state to produce two black majoritymajority districts among its seven. Roberts, with the increasingly liberal Brett Kavanaugh and the court's three Democratic-appointed justices, twisted logic with stunning degrees of sophistry to pretend that their decision does not contradict both statutory and constitutional restrictions against apportioning districts on the basis of racial proportion to the population.

Starting point is 00:14:02 For decades, the courts have approved district lines within majority Black territory. Now, it says what was legal for each of the prior decades is no longer legal, even though no applicable law has changed in the interim. Where is the logic? As Thomas noted, Alabama's population distribution is such that the only way to create a second Black majority congressional district is to abandon race-neutral principles and make race the predominant precondition for figuring out where to draw the district lines, they wrote. All 11 maps proposed by plaintiffs can achieve a second majority black district only by dividing major black majority parts of the county for the first

Starting point is 00:14:40 time ever, splitting up communities along the Gulf Coast region. The court's decision assumes that Black people in urban mobile have fewer interests in common with their white neighbors two blocks away than with rural Black people on the Georgia line 200 miles away. This is racial stereotyping at its worst. 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+.

Starting point is 00:15:23 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.

Starting point is 00:15:58 In National Review, Carrie Campbell-Severino said the court is inviting confusion. The majority seemed focused on applying the framework for vote dilution claims previously established in Thornburg v. Gingles, except that focus is difficult to achieve on a standard that has tended to be amorphous and confusing for judges to apply, Severino wrote. By what benchmark did the court determine that Alabama's map was not equally open to minority voter participation. The court did not say, at least not explicitly. Far more clarity about this case is to be found in Justice Clarence Thomas's dissent, the bulk of which argued that to the extent Section 2 applies

Starting point is 00:16:36 to districting plans, any districting benchmark must be race neutral. It must not assume that an acceptable plan should include any particular number of proportion of minority-controlled districts. Any other benchmark would render the vote dilution inquiry fundamentally circular, allowing courts to conclude that a distracting plan dilutes a minority's voting strength on account of race merely because it does not measure up to an ideal already defined in racial terms. Thomas's dissent exposed the elephant in the room that the starting point of plaintiff's maps was the proportional allocation of political power based on race. In red state, the blogger Banshee focused on the outcome, saying this put

Starting point is 00:17:16 the Republican House majority in jeopardy. Certainly, this ruling reverses a trend by the high court of further limiting the VRA, which ironically began with Chief Justice John Roberts himself. The waters are a bit muddier today than yesterday, and it appears Republicans have hit a wall insofar as how far they can push the envelope on, she said. As to the electoral damage done, Republicans only hold a slim majority in the House of Representatives, a majority made even more tenuous by Representative George Santos' recent arrest on fraud charges. That means every district counts, and this ruling could be the difference in winning or losing the chamber in 2024.

Starting point is 00:17:52 This will impact at least two seats in Alabama, both of which will be easily won by Democrats. But the precedent will also be used in the future to push back on other Republican-drawn maps, and there are already rumblings of challenges in Louisiana and South Carolina that could succeed. For Republicans, that means the GOP will need to get more aggressive in states where they can get away with it before a deluge of changes overwhelm the ground gained in 2022. All right, that is it for the left and the right are saying, which brings us to my take. So anytime I write about Supreme Court rulings, I try to focus on two separate things. There is the logic of the ruling, and then there is the practical outcome of the ruling.

Starting point is 00:18:44 On the practical outcome here, I am happy. Gerrymandering is a bipartisan crisis, and it is a scourge on our democracy. Any ruling like this, which will effectively reverse one party's attempt at gerrymandering, is a good thing. If Republican legislators in the South think heavily gerrymandered maps like this one can't get past federal courts with majority conservative justices or a Supreme Court with a 6-3 majority tilt, that is a good thing. Hopefully they will take the cue and gerrymander less often. On the logic of the ruling, I'm far more conflicted. Following precedent makes sense, and maybe this is just as simple as that. The court has ruled using the Gingell's framework for four decades, and changing that would require bucking years of precedent. Was the black vote being diluted? Yes. Did it appear Republicans

Starting point is 00:19:29 were doing so intentionally? Yes. Does this violate the VRA? Yes. Again, before the midterms, a three-judge panel with two Trump appointees eviscerated the map in their 255-page opinion, writing that under the Gingell's precedent, quote, we do not regard the question of whether the Milligan plaintiffs are substantially likely to prevail on the merits of their Voting Rights Act claim as a close one. But when I read the arguments in the case, the majority and the dissenting opinions and the punditry around it, one thing becomes obvious. There is a lot more clarity among the dissenters. Justice Clarence Thomas put it plainly, nothing in Section 2 gives the right for a protected class to create a number of districts proportional to their share of the population. Indeed, over 2 million race-neutral

Starting point is 00:20:18 simulations did not yield a single plan with two majority Black districts, and even 20,000 simulations with one majority Black district floor did even 20,000 simulations with one majority Black district floor did not yield a second district with a Black voting age population over 40%. In other words, if you take race totally out of it and ask these race-neutral algorithms to create districts, you don't end up with two majority Black districts. Starting from that point, it's hard to overcome the argument that the court is compelling a state to make race the central guidepost in creating these districts, which is plainly unconstitutional. As Severino pointed out, you can contrast that clarity with a section of the opinion that Roberts wrote. It stated that being aware of racial considerations is permissible,

Starting point is 00:21:01 even required by Section 2, while being motivated predominantly by race is usually not. But the line between racial predominance and racial consciousness was somehow not breached here. Does that sound like an easy guideline to follow in future cases? It doesn't to me, and it might be why it was the one section of the opinion that Justice Kavanaugh did not join. You could argue, of course, that the VRA might be sloppily written law in some parts, or that the Constitution is outdated, or that past precedent in the court has created a total mess. All of that might be true. But to me, the argument put forth by Thomas and the dissenters here just made a lot more sense, was a lot more to the point,

Starting point is 00:21:41 and left a lot less ambiguity. That doesn't make it right, necessarily, but it does mean that their position of maintaining the status quo required less mental gymnastics. Millhiser responded to Thomas' reasoning under what the left is saying with a good argument, too. By following Thomas' outline, it would make it nearly impossible for any racial gerrymandering plaintiff to ever prevail in court. Millhiser argues essentially that of course the mapmakers are using race as a precondition to draw these maps. The whole point is to prove it's possible to draw two majority black districts in Alabama within the framework of Alabama's rules on redistricting. How can a mapmaker do this without paying close attention

Starting point is 00:22:21 to race, Millhiser asked. That's a fair point, but I'd certainly feel better if the race-neutral algorithm randomly spat out some second-majority black districts without including racial makeup as a precondition. Absent that, the result of this decision is both that the map in question is racially gerrymandered and the new map producing a second-majority black district is racially motivated. It's hard for me to feel great about either outcome, which I suppose is why this case ended up before the Supreme Court. Ultimately, the plaintiffs were able to show that Alabama can redraw the maps to include two majority Black districts

Starting point is 00:22:56 and can do it while meeting previous Supreme Court precedent on how maps can be drawn. This does not mean a voting rights plaintiff can compel a state to draw misshapen districts to meet some racial criteria. Alabama still has to create this second district with reasonably compact districts that conform with traditional districting criteria, like keeping communities with shared cultures and preferences intact. That is a good limit to reinforce, though it doesn't make any of this less complicated or convoluted. All right, that is it for my take. Before we jump into your questions answered, two quick reminders. One, our YouTube channel is churning out some fresh original content, including an interview I did last week about the debt ceiling.

Starting point is 00:23:46 including an interview I did last week about the debt ceiling. And also we have tickets on sale right now for our event, August 3rd. I'm going to keep promoting this in the podcast until we sell out. So if you don't want to hear me talk about the event on the podcast anymore, just go buy a ticket and help us sell out and then I'll stop bringing it up. And that's that. August 3rd, Philadelphia. Ticket link in today's episode description. Also, you can find it at readtangle.com backslash live. All right, with that out of the way, we're going to jump in with your questions answered. This one is from Arez in Mountain Lakes, New Jersey. Arez said, what do you think of this prediction? Trump, sensing that he will end up in jail and with minimal chance he can win in the general election while under indictment or behind bars, will drop out of the primary before a single vote is cast and endorse DeSantis in exchange for a presidential pardon if or when he beats Biden.

Starting point is 00:24:36 It seems this or something like it might be his best case scenario now. Okay, so I love the theoreticals, but yeah, I think this is extraordinarily unlikely. First, I think it is unlikely that at any point before a vote is cast, it will be clear Trump is going to lose the primary. He is in a commanding position right now. Second, I think it is and will continue to be unclear whether he will face a guilty verdict, especially given the expected judge, venue, and jury. And third, it's not a guarantee that DeSantis would pardon him if he wins, and Trump is found guilty, though I do think that he would. A more interesting question, I think, is what would happen if Biden

Starting point is 00:25:16 pardons Trump after a guilty verdict? That would be a pretty interesting political move, one that intrigues me a lot more than some kind of quid pro quo between DeSantis and Trump. Either way, I don't think it's likely that Trump will drop out, or that he will be sure of defeat, or that he will be sure of a guilty verdict. All right, that is it for our reader question, which brings us to our under-the- the radar story. Americans' views on issues related to gender are changing rapidly. A new poll by PRRI found that the number of Americans who say there are only two genders has increased from 59% in 2021 to 65% in 2023. Non-white Protestants, Hispanic Catholics, and voters under the age of 30 years old represent the largest increases. 40% of Americans say they would be uncomfortable if a friend uses gender-neutral pronouns, while just 35% said they would be comfortable. The poll also found that 49%

Starting point is 00:26:16 of Americans believe public schools give children harmful information on sexual identity and gender, while 50% believe they do not. The survey showed sharp divides among Republicans and Democrats, including 90% of Republicans who say there are only two genders and 44% of Democrats saying the same. The poll, which surveyed more than 5,000 Americans, was conducted by PRRI. You can find a write-up of the poll in NBC News and a link to the poll in today's episode description. All right, next up is our numbers section. The percentage of Americans who say they have heard a little or nothing at all about legislative redistricting in their state is 85%, according to a 2022 Pew poll. The percentage of Americans who say they are unsure of how they feel about redistricting in their state is 55%. The percentage of Americans who say they are unsure of how they feel about redistricting in their state is 55%.

Starting point is 00:27:06 The percentage of Americans who say they are dissatisfied with the redistricting in their state is 24%. The percentage of Americans who say they are satisfied with redistricting in their state is 19%. The margin of victory for Democrat Terri Sewell over a Republican challenger in her race for Alabama's 7th district was 63.6% to 34.8%. The highest share of the vote won by any Democrat in any of Alabama's other six congressional districts was 29.6%. The number of congressional districts in Alabama that are considered competitive is zero. All right, and last but not least, our have a nice day story. Montana children will have access to free books courtesy of Dolly Parton and in partnership with the state's first lady, Susan Gianforte, who's married to Governor Greg Gianforte, the Republican. Parton's book giving

Starting point is 00:27:58 program, the Imagination Library, seeks to improve educational outcomes and creates a foundation for a lifelong love of learning in young children. The library will provide a free book each month to any Montana child up to five years old who is registered with the organization. Literacy is critical for our kids and their development. When parents read to their kids or when a child reads, it engages them, it fires their imagination and sparks their curiosity, Gianforte said. To date, the Imagination Library has gifted over 206 million books in the United States, Canada, the United Kingdom, Australia, and Ireland. Sunny Skies has the story. There's a link to it in today's episode description.

Starting point is 00:28:43 All right, everybody, that is it for today's podcast. As always, if you want to support our work, please go to readtangle.com slash membership and become a member. Don't forget, check out our links for tickets to our event August 3rd and also give our YouTube channel a look and subscription too, please. We'll be right back here same time tomorrow. Have a good one. Peace.

Starting point is 00:29:01 We'll be right back here same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited by John Long. Our script is edited by Ari Weitzman, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bukova, who's also our social media manager. Music for the podcast was produced by Diet75. For more on Tangle, please go to readtangle.com and check out our website.

Starting point is 00:30:05 Based on Charles Yu's award-winning book, We'll be right back. 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 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.

Starting point is 00:30:38 Learn more at FluCellVax.ca.

Tangle - The Supreme Court's voting rights ruling in Alabama.

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