Louisiana is drawing weird shapes in their electoral maps, and it may have devastating consequences on modern day voting rights. The Supreme Court is expected to hand down a decision in the next few months on the state’s redistricting map, which seeks to protect current Speaker of the House Mike Johnson. Professor Rick Hasen, Director of the Safeguarding Democracy Project at UCLA School of Law, joins Jen to comb through the legal details on this court case and why it matters.
“Justice Silner said: ‘Oh, this is all about partisanship. That is, they’re not discriminating against Black voters, or Latino voters, or Native voters because they’re minorities. They are discriminated against them because they’re Democrats, and that’s a-okay to redraw for a 2nd black majority district.’” Professor Hasen summarizes, highlighting that this argument is a smoke screen to the true motivation behind these maps.
Professor Rick Hasen is the Gary T. Schwartz Endowed Chair in Law, Professor of Political Science, and Director of the Safeguarding Democracy Project at UCLA. Professor Hasen was named one of the 100 most influential lawyers in America by The National Law Journal and one of the Top 100 Lawyers in California by both the Los Angeles and San Francisco Daily Journal.
The transcript below has been edited slightly for clarity.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief at the Contrarian. We’re delighted to have back with us Rick Hassan, who is a premier voting rights attorney in the United States at UCLA Law School. Welcome, Rick.
Rick Hasen, UCLA Law
Great to be back with you.
Jen Rubin
Last week, the Supreme Court heard a case, actually for the second time, on the Voting Rights Act, and specifically Section 2. What was before the court this time that it didn’t hear last term?
Rick Hasen, UCLA Law
Alright, well, this is a little complicated, so bear with me for a second. So, this case started out in, Louisiana, actually as a follow-on case to an earlier case. So, Louisiana draws congressional districts, and the state legislature draws those districts, and there are Republicans that get to draw those districts, and they had drawn the districts where there was one district where minority voters had a chance to elect a candidate of their choice. And the… this earlier lawsuit, argued that given the population of Louisiana, and given the placement of Black voters in Louisiana, and given the fact that they never get a chance to elect their candidates of choice, that the state actually had to draw a second, Black Opportunity District in order to comply with Section 2 of the Voting Rights Act, which since 1982 says that minority voters have the same opportunity as everybody else to participate in the political process, and to elect representatives of their choice. So, Louisiana comes, and first it fights against this, holding, but then gives up and says, okay, we’re gonna draw another district. And they draw the district to protect Mike Johnson, the Speaker of the House. But it does create a second, oddly-shaped, black opportunity district. And that…led to a follow-on lawsuit, which is the case that’s now before the court, Louisiana v. Calais, which was arguing that Race was made the predominant factor in drawing those lines, and doing so was not justified by any compelling reason, therefore violating the Equal Protection Clause of the 14th Amendment, as the Supreme Court understood it. And so when the case was argued back last March, the question was whether race was really the predominant factor in drawing the lines or whether it was really about politics, you know, protecting Mike Johnson, protecting Republicans while still complying with the Voting Rights Act. And so, I thought we’d get a kind of uninteresting opinion, one in a series of cases where the court decides whether race or party predominates, a kind of silly exercise, given that 90% of Black voters in Louisiana vote for Democrats, and more than two-thirds of whites in Louisiana vote for Republicans, so just talk about party or race makes a lot to make a lot of sense. So, the end of the term, the Supreme Court didn’t decide the case, it asked for a re-argument, and then in the middle of summer, on a late Friday night afternoon, it said, here’s what we want to argue, and essentially, if we get past step one, race is the predominant factor, can the Voting Rights Act serve as a compelling interest? to justify making race the predominant factor in drawing the lines. And the Supreme Court has always assumed the answer was yes. And so now, no longer assuming the answer is yes, the court was considering whether Section 2 of the Voting Rights Act can serve as a reason to make race the predominant factor, and under the argument, as we heard it last week, the question was, is race consciousness, which is required by the Voting Rights Act, itself suddenly unconstitutional, even though the court has upheld the constitutionality of the Voting Rights Act many times? What has changed since 1982? There have been lots of cases involving Section 2. There was one out of Arizona that severely limited, Section 2, not too long ago. What is the court, or the certain segment of the court, and what do the, people arguing against the Voting Act say has changed in 20-some-odd years, or 30-some-odd years, yeah? So, first I’d say that the Voting Rights Act has been applied differently when it comes to redistricting versus other contexts, and you’re right, in 2021, the Brnovich case, the Supreme Court, for the first time addressed what the Voting Rights Act means Outside of redistricting, for example, a state passes a voter ID law, and minority voters claim it’s discriminatory, and the court really weakened Section 2 as applied in that context. But let’s just focus on the redistricting cases, because that’s what’s at issue here. In 1986, the Supreme Court, for the first time, interpreted what Section 2 as amended means. And it was a case called Thornburg v. Jenkles, and it created a kind of a three-factor test, followed by a multi-factor test to decide And sometimes plaintiffs won those cases, sometimes they lost. It certainly didn’t lead to proportional representation, which some people were worried about. But the court kind of chugged along and decided a voting rights case every term or two. And then most recently, in 2022, there was a case very similar to what we saw in Louisiana in the first round of this litigation. In Alabama arguing that Alabama needed to draw a second Black Opportunity District. Case went up to the Supreme Court, and the Supreme Court, on a 5-4 vote, said that, yeah, Louisiana, sorry, that Alabama actually has to draw that second district. And so, that was interesting. It was the three liberal justices on the court siding with Kavanaugh and Roberts in saying that Alabama violated Section 2 of the Voting Rights Act, and the dissenters advanced a number of theories as to either the Voting Rights Act is unconstitutional or it should be reinterpreted so that it’s very, very weak. So already, there were four justices, conservative justices, on record as reading the Voting Rights Act very narrowly. And in that case, Allen v. Milligan. Justice Kavanaugh, who was one of the five in the majority, said, you know, back in 2013, we held a different part of the Voting Rights Act unconstitutional. This was in the Shelby County case, because the passage of time meant that you don’t need a race-conscious remedy anymore to deal with special discrimination in the South. That was a very controversial decision. Kavanaugh asked in his concurrence, hey, that wasn’t raised in this case, but maybe we should address that in the future. And so now, this Louisiana case has become that case where they’re addressing it, and notably at the oral argument. when, Janae Nelson, the lawyer for the Legal Defense Fund defending the law, said, you know, this result is… follows from that Alabama case, from Allen v. Milligan. Chief Justice Roberts’ response was, well, in that case, no one asked us to overturn precedent, and in this case, they were. Now, I don’t think it’s fair to say no one asked them to overturn precedent. I think Alabama did, but Roberts saw this as a case where he was kind of locked into existing precedent in the Alabama case, now everything’s on the table. And certainly, I heard from all the conservative justices, they all spoke at one point or another in the argument. I heard from all the conservative justices, deep skepticism about Section 2 of the Voting Rights Act, and that could mean anywhere from the court tweaks that 1986 jingles test to the court strikes down Section 2 entirely. It seems pretty clear that the court’s gonna rule that Section 2 did not require the creation of the 2nd District but how the court gets there, and how bad that’s going to be for the future of Section 2 of the Voting Rights Act is unclear at this point.
Jen Rubin
People may be scratching their head and saying, how can something that has been constitutional all along suddenly, poof, become unconstitutional? We hadn’t noticed that voting discrimination has gone away. In fact, since Shelby County, which was that case, eviscerating, article, rather Section 5, there have been plenty of instances, and in fact just a few months ago, the President of the United States is trying to eliminate minority districts in the state of Texas. How can it be that suddenly, what, there’s no remedy for this? Or there’s a theoretical harm, but you can’t remedy racism? What’s going on?
Rick Hasen, UCLA Law
Well, back in Section 5, when the… that was the Shelby County case, the… the part of the Voting Rights Act that required federal approval before you can make changes in voting rules was based upon data from the 1964, 1968, and 1972 elections. And so there you could see a kind of time argument. I didn’t agree with it, but you could see the time arguments, like You have to point to current problems. You can’t rely forever on old data. Section 2 is different. Section 2 is what, lawyers call self-sunsetting. When the conditions on the ground are better, when there’s no longer racially polarized voting, where white voters are able to defeat the chances of minority voters being able to elect their candidates of choice, then you can’t make out a Section 2 violation anymore, and so it has been thought that Section 2 didn’t need a time limit. But what Justice Kavanaugh was saying is, he was analogizing this to the affirmative action cases. So back in the early 2000s there was a case called Gruter out of Michigan, and Justice O’Connor said, you know, we’re getting to the tail end here. We need race-conscious remedies to deal with past discrimination, but discrimination is diminishing, so maybe we’ve got 25 more years. And then, we didn’t quite get that much time, but in the Harvard case last year, the SFFA case. The court said no more affirmative action in education. They seem to be applying the same thing here. And where I think that that is exceptionally problematic, and indeed perverse is that Congress passed the Voting Rights Act and the amendments in 1982 under its powers to enforce the 14th and 15th Amendments. The 14th Amendment, the Equal Protection Clause, the 15th Amendment that bars racial discrimination in voting. Those Reconstruction amendments, which came after the Civil War, were meant to protect Blacks who were formerly slaves and give them civil and political rights. And the idea that the Supreme Court is going to say that the Voting Rights Act violates the Equal Protection Clause just turns our understanding of the Constitution on its head, and also diminishes congressional power by letting the Supreme Court substitute the judgment of Congress, which should be the one to determine, has there been enough progress in eliminating racial discrimination in voting so that this remedy is no longer needed. And the court, is second-guessing a decision that the Congress made most recently in 2006, when they renewed the Voting Rights Act, when they said that these remedies were still required. And in 2006, The Voting Rights Act passed in the Senate by a vote of 98 to 0, which Justice Scalia, back in that Shelby County argument, said, oh, well, that just shows everyone’s afraid of the Voting Rights Act. I think it actually showed that there was a bipartisan consensus in favor of protecting voting rights. That has now diminished. It’s now disappeared because you did have Louisiana and, I think, 16 other states and the United States government, represented by the Solicitor General, all arguing that Section 2 is either unconstitutional or should be read in a way that would render it essentially a dead letter.
Jen Rubin
Doesn’t there have to be, I know this is naive, but some actual basis for this assertion that we don’t need it, I haven’t noticed a whole plethora of white districts electing Black representatives. I haven’t noticed that there has been, an absence of gerrymandering, in fact, to eliminate or diminish Black voting. Factually, can they just pull this out of Thin air and overlook the last 20, 30 years of voting history?
Rick Hasen, UCLA Law
Well, I do think that in some parts of the country, things have gotten better, and you will see white voters voting for, candidates who are also supported by minority voters. I think that’s true in Los Angeles, for example, and maybe true in New York City. But it’s not true in the South, which is where voting rights has been so much of a problem. But Justice Alito, who was the architect behind that 2021 Brnovich decision to weaken the Voting Rights Act outside of the redistricting context. Justice Silner said, oh, this is all about partisanship. That is, they’re not discriminating against Black voters, or Latino voters, or Native voters because they’re minorities. They are discriminated against them because they’re Democrats, and that’s a-okay. And to me, that is a real perversity, because we have this overlap of race and party. It’s the Supreme Court just being willfully blind to the fact that When Texas decides to re-redistrict and draw a number of Democratic districts to go away, they are necessarily drawing districts where some minority voters are going to be deprived of their opportunity to elect candidates of their choice. And in fact after Texas engaged in re-redistricting, the already ongoing litigation in Texas over whether Texas’s 2021 redistricting violated the Voting Rights Act now has been updated to consider this. And there’s a chance that a court applying Section 2 as it exists today will say that some of the re-redistricting violates the Voting Rights Act. We’ll have to see. But if the Supreme Court changes the test, or eliminates Section 2, then those lawsuits would go away, and I actually think if the court weaken Section 2 significantly, or strikes it down, we might see re-re-REDistricting before 2026, where some states that are already redistricting will eliminate more districts that they felt compelled to keep in order to comply with Section 2 of the Voting Rights Act.
Jen Rubin
Now, you said something that I think is very key, which is, in those post-Civil War amendments. The amendments gave Congress the right to decide, and the other constitutional amendments, they don’t always say Congress gets to decide, they just state whatever it is, and the assumption is that the courts, as the ultimate determination of the Constitution, get the final say. What does that language mean, if not that Congress gets to decide when the Voting Rights Act is not need it anymore.
Rick Hasen, UCLA Law
Right, so one of the things that we saw in the past, if you go back to the 1960s, that the Supreme Court said that as long as Congress is acting rationally, it should be deferred to. But then starting the early 2000s, in cases involving States versus the federal government. The Supreme Court started reading into, at least the 14th Amendment, a requirement of congruence and proportionality. The idea that we’re going to judge whether Congress has an adequate record of states violating people’s rights to justify Congress coming in and then imposing only a proportional response to the amount of state violation of rights. At the oral argument in the Calais case last week, Justice Barrett asked whether that same standard that the Court had been applying to the 14th Amendment, that congruence of proportionality standard, should also apply to the 15th Amendment. That would flip the 15th Amendment on its head, and take, as you pointed out, the power that the Constitution explicitly gives to Congress to make these judgment calls and let the Supreme Court second-guess that decision. You know, for most of American history, when voting rights expanded, it happened when Congress acted. Congress passed constitutional amendments that, ultimately were ratified by the states, including the 19th Amendment, guaranteeing no discrimination on the basis of gender in voting. Congress passed the Voting Rights Act and other protections for voters. And for the Supreme Court to come in is very anti-democratic, small-D democratic, by substituting its own judgment as to what’s needed to assure we have no discrimination in voting on the basis of race and the equal protection of the laws, rather than leave that issue to Congress itself.
Jen Rubin
So… the Congress, rather, if the Supreme Court, says this is unconstitutional. Even in a case where the Louisiana state legislature stands up and says, we intend to deprive African Americans of districts. Enough of this representation by blacks, we want whites to rule. They still couldn’t create districts, there still wouldn’t be a remedy? In other words, there’s no remedy when there’s abject, explicit discrimination?
Rick Hasen, UCLA Law
No, there would be a remedy there, because the court would, still bar those laws that are passed with a discriminatory intent. And this actually takes us full circle. So in 1980, there was a case called City of Mobile v. Alabama, where Mobile had a city council. All the whites preferred one set of candidates, all the blacks preferred another set of candidates, everyone was voted at large, so everybody votes for everybody, and no blacks were ever elected to the city council. And so black voters sued, and they said, hey, this violates the 15th Amendment, we have no political power, we’re shut out of the process. And the Supreme Court in the city of Mobile said, for purposes of the 15th Amendment, in order to show a violation, you have to show intentional discrimination. That is both a discriminatory intent and discriminatory effect. Well, that ruling so outraged voting rights proponents that they lobbied for and successfully got Congress to revise Section 2, and this is how we got Section 2. Section 2 says there’s a violation if you can prove just discriminatory effects or results or impact. Rather than proving discriminatory intent. You know who was the point person fighting against that expanded language? It was John Roberts, when he was a 27-year-old staffer working in the Justice Department for Ronald Reagan, trying to stop this expansion. They lost. Congress passed this expansion of Section 2 to allow for discriminatory effects. The problem is, if you eliminate Section 2, or you weaken it so much that you have to prove an intentional violation to prove a violation of Section 2 or the Constitution. Most legislators these days don’t get up and make those explicit statements about wanting to discriminate on the basis of race. And so you have to try to infer bad intent. But, again, in a series of cases where Justice Alito was the author, he’s made it really hard to prove discriminatory intent, and says, you have to presume that legislators are acting with good intent, which is, of course, the opposite of what we assume in a lot of these cases is going on, really.
Jen Rubin
It’s very hard to come away with a conclusion that the six justices are thinking of a radical change, not only in the law, but in the American political system, simply because they now have the votes. Nothing has really changed between now in 1982, in this respect, nothing has really changed between now and 2006. They have the vote, so they’re gonna change it. And that seems to be of a piece with their utter contempt for precedent. Dobbs, what changed? They had the votes, so they could change 50 years of precedent on abortion. Are we now simply at the mercy of them kind of thumbing through the books and deciding, well, we don’t like that, we don’t like that, we don’t like that? Precedent really means nothing. So, if two or three seats turn over, a Democratic Majority that’s been appointed by Democrats could go through and say, no, we don’t like any of those either. What’s happened to the rule of law? Well, you know, the Roberts Court is not the first court to ignore precedent, but
Rick Hasen, UCLA Law
the precedents they’re ignoring are big ones, right? So it’s not just the number of cases, it’s the significance. Overturning part of the Voting Rights Act, which was seen as the crown jewel of the Civil Rights Movement, when they overturned Shelby County, in Shelby County, when they overturned Section 5, the court assured us in that opinion, don’t worry, there’s still Section 2, it applies nationwide, it’s permanent, it’s not a problem. And now they’re going after Section 2. So I think, you know, it’s not that the Roberts Court is necessarily overruling more cases, but they’re overruling more significant cases, and they’re doing so in a way that is fundamentally changing American society. And it’s really hard, I mean, this is an obvious point, but worth saying. It’s really hard to get around a Supreme Court opinion, because if the court says, we have to read Section 2 really narrowly so that it won’t be unconstitutional. Well, that’s gonna hamstring Congress and the states from passing new race-conscious districting in the future. My only hope is that…people would be so outraged by a decision striking down Section 2 that it would help to spur a new civil rights movement and more focus on the Supreme Court. But, you know, these are really technical issues. It’s hard to get a lot of people excited about districting itself. It’s like…What? You know, people are not focused on that, the way political, legal, voting rights people are, but it has a real effect on their lives, in terms of representation, in terms of what their representatives are willing to fight for in Washington. You know, the fact that we have a shutdown right now that’s going on for so many days, is an indication of what it is that each party prioritizes in terms of what they think their constituents want. And if… the poorer our representation, the less our public policy is going to reflect the will of the people.
Jen Rubin
Well, if they either, strike down all of Section 2 or come up with a test that’s virtually impossible to meet, the worst case scenario is there could be virtually no Black representation in the South, and it also would go to local elections, we’re not talking about just Congress. Obviously, Senate is done by state, so you can’t cherryman to that, but state legislatures, county boards, city councils. If we go back to an era in which we have no blacks in government because the white legislators are able to, negotiate around without saying the magic words, we’re gonna go back to a pre-civil rights era where Blacks were disenfranchised. How is that not just a shocking development?
Rick Hasen, UCLA Law
It is a shocking development, if it does happen, and it will be reminiscent of what happened after the Civil War. After the Civil War, there was the period of Reconstruction. Blacks were able to vote, or Black men at least were able to vote, and there was some Black representation in Congress and in state legislatures and local bodies. And then, to resolve the disputed election of 1876, Republicans let Democrats suppress the Black vote in the South, and we went back to a period where there was zero representation, and it took you know, 90 more years of fighting before Blacks had the opportunity, same opportunity as white voters, to elect their candidates of their choice, so…It would be a real regression in voting rights in this country, and I would hope the American people would not stand for it, and that there will be some kind of political solution to rein in the Supreme Court and to restore voting rights. You know, I think we actually need a…constitutional amendment to protect voting rights in our Constitution, because we don’t.
Jen Rubin
Or a very different kind of Supreme Court, which is going to lead to all sorts of interesting reform ideas, either statutory or constitutional. That’s with a bigger question, stepping back. The Republican Party, which overwhelmingly represents white voters, have this notion that after 250 years, we should be, quote, colorblind. That any effort to remedy historic discrimination is, per se, an attack on whites. You can’t do that because you’re discriminating against whites. The difficulty seems to be that in their faux originalism, which goes back to the 14th and 15th Amendments, that may be a nice theory, but that wasn’t what the framers of those constitutional amendments had in mind. They had the opposite view. So, how does someone who fancies himself to be an originalist justify imposing a 21st century ideology on a constitution that says the opposite?
Rick Hasen, UCLA Law
Right, so, you know, one of the things that originalists on the court say is you should look at contemporary practice, see how the, part of the Constitution was understood at the time that it was passed, and we know, after the Civil War, that Congress passed race-conscious statutes to try to deal with the problems of the freed slaves. And so, you know, this was something where Justice Scalia, when he was still alive, was pushed and never had an adequate response. And, you know, I think it’s fair to call these originalists fair-weathered originalists. They apply originalism when it makes sense to them, and they don’t when it otherwise. If you look To take another example, in the election area, campaign finance. It’s not as though the principles of the First Amendment that the Supreme Court’s supplying to bar limits on big money in politics is part of the original understanding of the First Amendment, which is really about prior restraints You know, of, you know, stopping a newspaper from printing something critical of the government. So, the justices who are conservative, and I think it’s only conservatives who call themselves originalists on the court, although not all the conservatives call themselves originalists, but most of them do. I don’t think that they’re consistently applying originalism, and they’re not following it, at least in the context of the Reconstruction Amendments. They seem to be… have… are really… easy time relying on what was going on in 1789 when the Constitution was first amended, but they have a lot harder time with 1865 when the Civil War ended.
Jen Rubin
Exactly, and when it comes to the notion that the 14th Amendment reincorporated the earlier amendments, that they don’t want to hear about it entirely, because that would change the meaning of the First Amendment, the Second Amendment, the Third Amendment, and so on. Last question for you. It’s been such a fascinating discussion if they’re…are one or two justices, that are in play. Did you hear anything from the potential justices who might be there, that would be Robert Sparrow and, Kavanaugh, that would indicate something short, some recognition that this would be a political earthquake, that would be not only bad for the country, but bad for the credibility of the court, which is already suffering Did you hear anything?
Rick Hasen, UCLA Law
Well, Barrett, I would not say, is a swing voter here. Of course, she can always change her views, but she was one of the dissenters in Allen v. Milliken, and she has voted against voting rights plaintiffs in the few cases that have come before her on the Supreme Court on these issues. Kavanaugh and Roberts were sounding a tone that they are going to not see this as a violation of the Voting Rights Act or that the Voting Rights Act has outlived its usefulness. I think what we’re likely to see is, the Supreme Court, maybe in an opinion by Justice Alito, because this has come to be his specialty, re-interpreting the language of the Voting Rights Act in order to denute it of its power without explicitly overturning the Act. Overturning the Act would get a lot of attention. You know, you’d see a banner headline in a newspaper, to those who still…look at newspaper headlines. It would be a big deal, but…Supreme Court changes the jingles test so that it’s harder for plaintiffs to prove their prima facie case. Nobody understands that. And, you know, go back to 2021, the Brnovich case. When that case came out. I said, Justice Alito is not following text, he’s not following history, he’s not following professional intent, he’s eviscerated it, and people said, oh, you’re exaggerating, you know? And here we are now, 4 years later, and I can tell you, I looked, and there has not been a single successful Section 2 case brought Outside of redistricting to things like voter ID laws. Not a single successful case anywhere in the country since Alito did that, and you can easily imagine the court coalescing around some new test for Section 2 that is the equivalent of striking it down, but without actually saying it.
Jen Rubin
Well, that is an ominous note to end on, but I think it’s entirely realistic, and ultimately, as you say, our democracy rests on the people, what they’re willing to take, what they’re willing to agree to, and There were a lot of people out on the streets on Saturday. I wonder if more would turn out once they realized that Black people in the South don’t have any real representation. So it will be an interesting development. Thank you so much, Rick. It’s always fascinating to talk to you, and we’re going to have to see how they rule. When do you expect a ruling from them? Soon, right? They want to get those in so they can fix the maps for 2026.
Rick Hasen, UCLA Law
Well, this is interesting, because they did set the case quickly for a reargument. That might just be because they already heard the case once in March, so they were ready. Or it might be that they’re going to try and rush something out in the hopes of potentially affecting the 2026 elections. Remember that the liberal justices get your right to sense. That might slow things down, but if they rush it out, it could actually have an effect on 2026. We expect a decision by June, but if you would have asked me about the case last March, I would have said we expect a decision by the prior June, so we’ll see what happens.
Jen Rubin
Well, isn’t it interesting how the Supreme Court goes really, really, really fast when they want to, and really, really, really slow when they don’t want to as well? Thanks again, Rick. We’ll look forward to seeing you next time. Bye-bye.
Rick Hasen, UCLA Law
Take care.
