Tangle - The Voting Rights Act challenge.

Starting point is 00:00:00 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 Chinatown is streaming November 19th, only on Disney+. 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.

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, a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the new ruling that came out last week regarding the Voting Rights Act, Section 2 of the Voting Rights Act. We're going to talk about what exactly happened and what it means. Before we jump in, a quick heads up, though. I am coming to Lexington, Kentucky tomorrow. I am giving a talk at Transylvania University in Lexington, Kentucky about media bias and the loss of trust in the news. There is info on the event found in a link in today's episode

Starting point is 00:01:58 description. It starts at 6 p.m. in the Strickland Auditorium. It is free and open to the public. If you are in Lexington, I encourage you to come out and join us. If you are from the area, have any recommendations about good sightseeing, food, or local bourbon, let me know. I got a few days in Lexington. I want to make the most of it. All right, with that out of the way, we're going to jump in with today's quick hits. First up, the political network backed by the Koch brothers has endorsed Nikki Haley in the Republican primary. Number two, former First Lady Rosalind Carter was honored at a

Starting point is 00:02:37 memorial service attended by all living former First Ladies, her 99-year-old husband and former President Jimmy Carter, former President Bill Clinton, and President Joe Biden. Number three, today is the final day of the Israel-Hamas ceasefire. Negotiators are making progress on extending the pause in fighting while encouraging Hamas to continue to release hostages. Number four, Hunter Biden said he is open to testifying before the House Oversight Committee on December 13th. And number five, Representative Robert Garcia, the Democrat from California, filed a resolution on the House floor to expel Representative George Santos, the Republican from New York. A vote will be scheduled in the next two days. a new court ruling could severely limit legal challenges under the voting rights act a federal appeals court threw out a lawsuit by an arkansas naacp chapter challenging a redistricting plan

Starting point is 00:03:42 they say would dilute black voting power in the state. The 8th Circuit Court based in St. Louis ruled private citizens and groups cannot file lawsuits under Section 2 of the act. It found only the U.S. Attorney General could bring a legal challenge under this provision. Section 2 prohibits election or voting practices that discriminate against Americans based on race. Earlier this year, the justices struck down a proposed Alabama district map after a lawsuit brought by a coalition of civil rights groups. Monday's decision upheld a 2022 ruling from an Arkansas federal judge appointed by Republican former President Donald Trump that only the U.S.

Starting point is 00:04:21 Attorney General is empowered to file lawsuits. The ruling, which will likely be appealed, could set up the next voting rights battle at the U.S. Supreme Court. Last week, a federal appeals court issued a ruling that only the United States government, not private citizens or civil rights groups, can sue under the Voting Rights Act. If the ruling is appealed to and upheld by the Supreme Court or adopted by other courts, the decision would have a sweeping impact on voting rights across the country. The 8th U.S. Circuit Court of Appeals issued the ruling in a two-to-one decision. Specifically, the ruling holds that only the U.S. Attorney General can bring legal challenges under

Starting point is 00:04:59 Section 2 of the VRA, which prohibits practices or procedures that discriminate on the basis of race, color, or language of minority people. The decision came in a suit brought by the Arkansas branch of the NAACP, which claimed that district lines drawn for the Arkansas House of Representatives unfairly reduced the number of majority Black districts. After reviewing the text, history, and structure of the Voting Rights Act, the district court concluded that the private parties cannot enforce Section 2, the Eighth Circuit judges wrote. The enforcement power belongs solely to the Attorney General of the United States. Judge David Strauss, a Trump appointee, acknowledged in his majority ruling that such private lawsuits

Starting point is 00:05:37 have been brought for decades, but argued that the text and structure of the VRA did not permit them. If the 1965 Congress clearly intended to create a private right of action, then why not say so in the statute, Strass said. Chief Judge Levinsky R. Smith, a George W. Bush appointee, wrote in dissent, saying a long line of precedent allowed citizens to seek judicial remedies for discriminatory voting practices. Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government's agents for protection, Smith wrote. Legal experts

Starting point is 00:06:11 expect the case to be appealed and eventually arrive at the Supreme Court, which has limited the scope of the VRA in the past but has always assumed private voting litigants have a right to sue. However, Clarence Thomas and Neil Gorsuch have both questioned whether citizens have a private right to sue under Section 2 of the Voting Rights Act in recent cases. Republican attorneys general from 14 states joined Arkansas on the case's appeal to the Eighth Circuit. Arkansas Attorney General Tim Griffin said courts have allowed political activists to file meritless lawsuits seeking to seize control of how states conduct elections and redistricting for too long, while Texas Attorney General Ken Paxton said private enforcement of federal voting rights laws incurs heavy costs on states and intrudes on state sovereignty. Meanwhile, Sophia Lynn Lakin,

Starting point is 00:06:56 the director of the American Civil Liberties Union's Voting Rights Project, called it, a travesty for democracy, and said it was a radical decision that reversed decades of precedent. Today, we're going to examine some arguments from the left and the right about the decision and what it means for the Voting Rights Act, and then my take. We'll be right back after this quick commercial break. First up, we'll start with what the left is saying. The left is outraged by the decision, which it says brushed aside clear precedent to deliberately undercut the Voting Rights Act. Some frame the outcome as an ongoing consequence of Trump's time in office and the judicial

Starting point is 00:07:42 appointments he made. Others think Congress should take action to protect the Voting Rights Act before the Supreme Court rules on the case. In Slate, Mark Joseph Stern said the dead hand of the Trump administration is still strangling the right to vote. Why is this such a problem? Since the United States Attorney General has limited resources and because Republican Attorneys General no longer bring VRA suits, the main counter to infractions to the VRA is private entities. And indeed, private plaintiffs have been filing lawsuits under the relevant provision of the VRA known as Section 2 since it was enacted in 1982, Stern said. The University of Michigan's Voting Rights Initiative has counted well over 400 suits challenging discriminatory election laws, and the overwhelming

Starting point is 00:08:25 majority of these lawsuits have been brought by private plaintiffs, not the attorney general. And not one of them was thrown out on grounds that the private plaintiffs cannot sue under Section 2 of the VRA. Strauss's conclusion defies the plain text of the statute, history, and common sense. It rejects real SCOTUS precedent in favor of the fringe views of two far-right justices, Clarence Thomas and Neil Gorsuch, Stern added. Strass's opinion also flies in the face of Congress's stated intent to let private parties sue under the VRA. He seems motivated not by law or facts, but by annoyance that Black Americans would dare defend their right to equal representation. In Bloomberg, Stephen L. Carter said the Eighth Circuit ignored

Starting point is 00:09:06 decades of precedent in the ruling. The court's decision disrupts settled expectations. Private plaintiffs have sued under Section 2 for decades, and until recently, their right to sue has gone unchallenged, Carter said. If a regulatory regime has been working, and this one has, there's little reason for judges to disturb it unless some fundamental constitutional value is being undermined. Additionally, the ruling shows tone deafness. Even if one thinks the Eighth Circuit is correct, we might expect an opinion restricting the reach of the Voting Rights Act to be delivered in solemn tones. Instead, we're treated to what can only be called snark. Even the U.S. Supreme Court gets a healthy dose of skepticism.

Starting point is 00:09:49 Here's what the Eighth Circuit has to say about the five Supreme Court justices who, in 1996, agreed that Section 2 creates a private right to sue, but did not ultimately agree on a single opinion. Quote, assumptions and statements of belief are not holdings, no matter how confident the court making them may sound. Those statements by the justices, wrote the panel, are the least valuable kind. Well, that's one way to deal with inconvenient precedent. In The Hill, Maureen Abador argued that Congress should preempt the Supreme Court and protect the Voting Rights Act. The Eighth Circuit gives the Supreme Court yet another opportunity to finish the task they've embarked upon since Shelby v. Holder in 2013, to invalidate the most effective

Starting point is 00:10:25 enforcement mechanisms of the VRA. If the Supreme Court takes the case, agreement with the Eighth Circuit will have immediate nationwide implications on minority voters' ability to sue under the VRA provisions, like the prohibition against poll taxes and Congress's ability to create rights that protect minority voters. Certainly, Congress needs to act while it still can send a clear rebuke of the Supreme Court's decision, drawing upon its legacy when it did the same in 1982, after the Supreme Court intentionally misstated Section 2's standard of proof in Mobile v. Bolden. This is the least Congress can do, and not beyond the realm of reality as last Congress, a bipartisan and narrow revision to the Electoral

Starting point is 00:11:05 Count Act, was made to clarify the vice president's role in the counting of electoral votes after the atrocities of January 6th. All right, that is it for The Leftist Saying, which brings us to what The Right is saying. The Right is subdued in its reaction to the ruling and skeptical that the Supreme Court will support the Eighth Circuit's reasoning. Some say the Eighth Circuit is forcing the Supreme Court's hand on this issue but hope Congress will intervene instead. Others suspect the decision will be used effectively by the Left for political fundraising. In PJ Media, Rick Moran suggested the Supreme Court will nullify

Starting point is 00:11:46 the decision but criticize Democrats for trying to influence elections in the courtroom, not at the ballot box. The court found no specific language for a private right of action on voting rights cases, meaning that individuals and groups like the NAACP will be unable to sue based on the Voting Rights Act, Moran said. Now, the Supreme Court will hear the case, and even though the court's conservative majority has weakened the act in the past, they're not likely to allow this kind of radical change to go forward. While no explicit language in the act allows for a private right of action, there is certainly an implied right given the subject is elections, and the problems at the

Starting point is 00:12:20 time of the law was passed cried out for individuals to have the ability to sue, Moran said. In the meantime, Democrats' challenges and other redistricting cases could give them a big advantage in the 2024 election. They're likely to prevail in several of those races based on challenges, flipping red seats to blue based on where the lines are drawn. In The Federalist, Margo Cleveland outlined the two choices facing the NAACP after the Eighth Circuit's decision. The decision left Democrats in the left-wing press deriding the decision as rolling back increased minority power and representation in American politics, while Republicans and conservative media outlets praised the decision as protecting election integrity efforts.

Starting point is 00:12:59 In reality, though, the opinion concerned solely a question of statutory interpretation and the role of the courts in creating claims emitted by Congress, Cleveland said. The majority's analysis proved solid, yet given that for approximately 50 years courts have assumed private parties could sue under Section 2 of the VRA, the split 2-1 decision seems likely to be reconsidered by the entire Federal Circuit Court. 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

Starting point is 00:13:36 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

Starting point is 00:14:09 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. The NAACP has two choices now. It can ask the entire Eighth Circuit to rehear the case, what is called an en banc hearing, or it can seek review by the United States Supreme Court. If the Eighth Circuit does not rehear the case, or does and adopts the majority's view that no private right of action exists, the Supreme Court's hand will be forced as there will now be a split in the circuits on the meaning of federal law, something only the high court can resolve unless Congress speaks. Of course, the better and more appropriate route would be for Congress to address the issue, and at its core,

Starting point is 00:14:53 that is really what this VRA case is about. Who makes the law? In the Daily Signal, Fred Lucas explained why the Supreme Court may knock out ruling on the Voting Rights Act. The Supreme Court will likely reject an appeals court's decision to eliminate private lawsuits intended to enforce explain why the Supreme Court may knock out ruling on the Voting Rights Act. The Supreme Court will likely reject an appeals court's decision to eliminate private lawsuits intended to enforce part of the Voting Rights Act, Lucas said. Justice Samuel Alito, a member of the Supreme Court's conservative majority, has rejected the notion and pass oral arguments that only the government may act to enforce the Voting Rights Act. Further, liberal activist groups will find other means to bring voting litigation, and the Eighth Circuit's flawed ruling will be a little more than a means to

Starting point is 00:15:28 engage in more fundraising. The decision also clashes with a recent ruling by the Fifth Circuit Court of Appeals upholding the private right of action in covering Alabama, Florida, Georgia, Texas, Louisiana, and Mississippi, and such conflicting rulings would almost ensure Supreme Court review. If it comes to that, legal experts on both sides are signaling that the ruling likely won't survive. All right, that is it for what the left and the right are saying, which brings us to my take. So, while covering the Supreme Court case SEC v. Jarcassi yesterday, I said there was a lot I didn't know, and that I felt unsure about the law and what would happen. Today, the opposite is true. I think it's pretty clear that this is a radical ruling that should not stand. It's hard to square

Starting point is 00:16:21 it with the years of precedent, the intent of the legislation, and the reality of how Section 2 has been used since its earliest inception. I'm very confident the Supreme Court will throw this ruling out if the case is appealed to them. First, it should be acknowledged from the outset that the judge's plain explanation here, that no explicit language in the act allows for a private right of action, is accurate. There's no point in disputing that. You can read section two. It isn't very long. But the idea that such a thing needs to be explicitly permitted by the law is more than a little obtuse. The real question is actually whether the text really needs to spell that out. It seems obvious that a law designed to give citizens a remedy if their

Starting point is 00:17:00 right to vote is infringed is intended to allow those citizens to challenge the law themselves. The entire point of Section 2 of the Voting Rights Act is to protect citizens from the state. Rick Moran even concedes this in his criticism of Democrats under what the right is saying. There's certainly an implied right, given the subject is elections and the problems at the time of the law was passed, cried out for individuals to have the ability to sue, Moran said. the law was passed cried out for individuals to have the ability to sue, Moran said. It's really not that complicated. That's why, despite the vast majority of the nearly 400 challenges to voting rights laws under Section 2 coming from private citizens or groups, not one has ever been thrown out based on the fact they came from a private citizen. Ever. Of course, it'd be one thing if Section 2 were being abused to the point that some other right were being infringed. As Stephen L. Carter said under what the left is saying,

Starting point is 00:17:48 if a regulatory regime has been working, and this one has, there's little reason for judges to disturb it unless some fundamental constitutional value is being undermined. But that just hasn't happened, and there's nothing about the Voting Rights Act that needs to be remedied. Instead, we have over 40 years of people using the law exactly how it was intended to be used. The outcome the Eighth Circuit seeks here is one where challenges to voting rights violations come solely from attorneys general, an aim that is far from self-evidently beneficial and should be absurd to everyone. The attorney general doesn't have the time or the resources to properly represent all the people whose right to vote has been violated, nor are their priorities always aligned with private citizens. It's akin to a

Starting point is 00:18:30 member of Congress having to seek the president's permission just to propose a bill. The most jarring thing about this decision is that there are two judges sitting in a federal court who opted to take a swing at this. It's hard to come up with any other reason why they would do so aside from wanting to limit challenges to voting rights violations and to make it easier for restrictive laws to proliferate. If I'm being charitable, maybe I could say they are prompting Congress to clarify the law. While it's true that Congress could provide more clarity to the VRA or preemptively solidify it, it really shouldn't have to. The general silence from columnists on the right and the evasiveness from those who did respond is a good indication of just how radical this decision is. I'm pretty dismayed that this ruling came down in the first place, but I'm happy

Starting point is 00:19:15 to see the reaction to it and confident it won't ever become law of the land. We'll be right back after this quick break. All right, that is it for my take, which brings us to your questions answered. This is actually a question from me from the past. And the question is, how has Biden's immigration rule impacted encounters at the southern border six months later? The reason I'm asking this question is because on March 3rd of this year, we covered a new immigration rule from the Biden administration, and several readers pushed back on the way we summarized it at the time. I wrote that the

Starting point is 00:19:59 number of border encounters was so high that even the most pro-immigration person would admit that it made efficient processing of asylum claims impossible. Because of that, I said that one of the goals for any new immigration policy should be to decrease border encounters in the Southwest. After a few new policies from Biden, I saw that encounters were down, so I credited the administration accordingly. A few readers said it was too early to tell if that data was conclusive, and we should revisit the numbers later on. I thought that was a good point. So I promised those readers that I would look back at the data six months later.

Starting point is 00:20:31 It is now six months later, so it's time to make good on that promise. First, let's back up. I want to remind everyone what the rule changes were. To fill the gap when the pandemic-era immigration restriction of Title 42 expired earlier this year, the Biden administration passed a rule that would penalize asylum seekers who either didn't apply for asylum in countries they passed through to get to the U.S. or crossed the border illegally. Simultaneously, the administration opened the door to more legal immigration by creating a mobile app to make applying for immigration or asylum easier. But there's even more context.

Starting point is 00:21:04 In January, Biden had instituted a rule that the U.S. would cap the total number of legal immigrants from Cuba, Haiti, Nicaragua, and Venezuela at 30,000 per month after a background check, U.S. sponsorship, and an application received through the app. We covered that, too, highlighting the arguments from the right and the left about the rule change. In my take, in March, I said that we should judge the plan based on its results. For me, a win would be to see a reduction in southwestern land encounters, a more orderly system for adjudicating asylum claims, and more readily available legal pathways for migrants to

Starting point is 00:21:36 come here and work temporarily, I said at the time. So, have southwestern land encounters decreased? Well, no. It looks like they've actually increased. The data we have from the last six months shows a similar trend of encounters peaking in March and April and then gradually decreasing over the summer. However, encounters started to spike again in August against trends from previous years and appear to still be elevated over that time, resulting in more total encounters so far this year by the same time last year. Now, Biden can argue that immigration is down based on where it would have been had these rules not been put in effect. That's a fine argument, but since conditions preceding the

Starting point is 00:22:13 rule were partially created by the Biden administration in the first place, at the end of the day, it just doesn't look like a win for Biden. So, based on this data alone, it looks like I was wrong. So, points for you, the skeptical listeners and readers. When we do our end-of-the-year review and grade all of our issues, this take and its wrongness will certainly be included. Alright, next up is our under-the-radar section. ChatGPT has made waves across countless industries since it launched last year, with the medical industry among the most impacted.

Starting point is 00:22:49 Across the United States, doctors and other medical professionals are reporting remarkable breakthroughs with the technology. It passes the U.S. medical licensing exam, writes discharge summaries and radiology reports, analyzes new research, and helps doctors document patient visits. The pharmaceutical industry is also using these generative AI models to make drug discovery more efficient. While some are concerned about the potential for chat GPT to generate misinformation and undermine medical education, the industry as a whole appears to be charging forward with adopting the technology in all facets of its work. Axios has the story on what's ahead for AI

Starting point is 00:23:23 and medicine, and there's a link to it in today's episode description. All right, next up is the numbers section. The number of years since the 15th Amendment was ratified is 153. The number of years since the Voting Rights Act was signed into law is 58. The number of state voting laws objected to by the Department of Justice under Section 5 of the Voting Rights Act since 2010 is 18. The number of cases brought by the Department of Justice to enforce Section 2 of the Voting Rights Act since 1988 is 44. The number of Section 2 cases won in the past 40 years is 182. In that time, the number of successful Section 2 cases that were brought solely by the

Starting point is 00:24:05 Attorney General was just 15, and the number of lawsuits alleging discrimination under the Voting Rights Act brought by the Department of Justice during the Trump administration was one. All right, that is it for our numbers section, so last but not least, we have our have a nice day story. For two and a half weeks, 41 construction workers were trapped in a collapsed highway tunnel under the Himalayan mountains. Then on Tuesday, after weeks of delays and complications, all 41 were rescued. The intense effort to free the crew in northern India had been going on for 17 days when rescue teams achieved a literal breakthrough, breaching the collapsed debris

Starting point is 00:24:45 to access the area where workers had been trapped. Rescuers were then able to bring out the workers one by one through a three-foot escape pipe. I want to say to the friends who were trapped in the tunnel that your courage and patience is inspiring everyone, Indian Prime Minister Narendra Modi said on Twitter. I also salute the spirit of all the people associated with this rescue operation. Everyone involved in this mission has set an amazing example of humanity and teamwork. United Press International has the story, and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast. As always, if you want to support our work, you can go to readtangle.com forward slash membership. And don't forget, readtangle.com

Starting point is 00:25:28 forward slash black dash Friday dash offer. You can still get 20% off your first year of a yearly Tangle subscription before our prices go up at the end of this year. It's a good time to do that. We'll be right back here same time tomorrow. Don't forget, if you're in Lexington, come check me out tomorrow night. Have a good one. Peace. Weitzman, Will Kabak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bacoba, who is also our social media manager. Music for the podcast was produced by Diet 75. And if you're looking for more from Tangle, please go to readtangle.com and check out our website. The faster money and data move, the further your business can go

Starting point is 00:26:38 to a seamless digital future for Canadians. Let's go faster forward together. In life, interact. 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 00:27:11 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.

Tangle - The Voting Rights Act challenge.

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