So much is happening in the aftermath of SCOTUS’ Callais ruling. Red states are racing to disenfranchise voters, elections are being suspended, and Virginia is litigating a redistricting referendum that already passed. If your mind is swirling at all this information, you’re not alone.
Thankfully, Rick Hasen, Director of the Safeguarding Democracy Project at UCLA School of Law, is here with Jen to break it down. Hasen explains how the Supreme Court’s conflicting rulings on voting rights cases have created an electoral kerfuffle. Jen and Hasen also explore the message the Justices are sending to lower courts through these decisions, Louisiana suspending their ongoing elections, and Virginia’s uphill battle over its redistricting map.
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 following transcript has been edited for formatting purposes.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief of the Contrion. We’re delighted to have back with us Rick Hassan, who of course is one of the premier voting rights and election law experts. He hails from UCLA Law School. Nice to see you again, Rick.
Rick Hasen, UCLA Law
Good to be back with you.
Jen Rubin
The Supreme Court handed down Calais, and then, seemingly within hours, Southern states started moving. I’m a bit confused about what is happening in Alabama. In Calais, the court said it was not overruling Allen v. Mulligan. And, in fact, there was a finding there, more or less, of intentional discrimination. Why did the court vacate that?
Rick Hasen, UCLA Law
Right, so I guess let me put this in a little bit of context. So in Calais, that involved Louisiana’s congressional districts. The claim was that when Louisiana drew a second congressional district to benefit black voters and give them a chance to elect their candidates of choice, that this was a racial gerrymander, even though it was done to comply with the Voting Rights Act. The Supreme Court in Calais agreed that it was a racial gerrymander and said that the underlying idea that the 2nd District had to be drawn because of the Voting Rights Act was wrong, and the court proceeded to reinterpret the Voting Rights Act. So, kind of, in… through a back door, the court, reinterpreted the Voting Rights Act, and it did so in a way that makes it virtually impossible for plaintiffs to win their cases. The approach in Calais, as you suggested in your question, was completely at odds with what the court had done 3 years earlier in a parallel case involving Alabama, where Alabama, too, was sued under the Voting Rights Act for not drawing a second Opportunity District for Black voters. The court in Calais said, we’re not overturning alum. It’s hard to see how the two cases could be read as being, harmonious with each other, and then Alabama, which a lower court had issued an order against Alabama, saying Alabama couldn’t try to redraw its districts yet again until after the 2030 Census. Alabama went to the Supreme Court and was successful in getting the Supreme Court on the shadow docket to throw out that old order, and to basically take the case, it’s called a grand vacate remand. We’re gonna take the case, we’re going to immediately send it back to the lower courts. to reconsider in light of Calais. That had two effects. One effect is, it opened up reconsideration. Does the ruling in Calais affect, the outcome in the Alabama cases? And as you suggest, there’s a reason to think that maybe it doesn’t, because there were two bases for Alabama to be required to draw this district. One is violation of the Voting Rights Act, but the other is violation of the Constitution, the 14th and 15th Amendments, protection, equal protection, as well as, the ban on race discrimination in voting. So one thing that’s going to happen is there’s going to be further proceedings, but the other thing that’s going to happen, the thing that is much more important for 2026, is that this order vacated the lower court order, including the stay, meaning that a map that Alabama had tried to pass that, apparently was done with intentional racial discrimination is going to be immediately put into effect for the 2026 elections. Could be enjoined for 2028, but if we’re looking at the very short term, this was a huge victory for Alabama, and quite inconsistent with what the court had done, just a few years earlier in the Allen v. Milligan case.
Jen Rubin
Is there any rhyme or reason to when the court says, we’re going to vacate, go ahead, or when they say, you know, it’s too late to meddle in things, we’re too close to the election? The so-called Purcell Doctrine, which is really Sort of a legal form, maybe, not really a strict statutory or, doctrine. being at all that consistent, or is the only indication whether it’s a Republican redraw or a Democratic redraw?
Rick Hasen, UCLA Law
So you’re right, that over the last few decades, the court has, applied inconsistently, the so-called Purcell principle. The idea is that in the period close to the election, federal courts should not make changes in their voting rules that might cause voter confusion, that might cause election administrator difficulties. This rule’s been criticized by me and others as kind of… Elevating one factor, this concern about voter confusion, over the normal four factors that the court considers when it gets a request for emergency relief. How likely is the… are the plaintiffs to succeed? Will there be irreparable injury to the plaintiffs if the court doesn’t intervene? How do the equities balance? And what is the public interest in these cases? So this kind of elevates one factor. The courts applied it inconsistently. It certainly has done it more to favor Republicans than Democrats. It also started off as a rule just about election administration. Purcell itself was a 2006 case involving putting a voter ID law in Arizona on hold. But then, including in Allen v. Milligan and Calais, the court applied it to redistricting many months before. And so the message that the Supreme Court was saying to the lower courts is, essentially. In some circumstances, states get one free unconstitutional map before you can intervene. And if that were applied consistently, I might not like it, but at least, you know, we know what the rule is. But the rule is subject to some exceptions. We don’t understand exactly how it works, because Many of these cases are on the shadow docket, where the court’s not writing opinions. And yet, this, decision… these two decisions in Louisiana, where, right after Kelly, the court immediately issued the decision, rather than giving the normal 32 days for the, losing side to a petition for a hearing, now the case is final immediately, and the ruling we just talked about in the Alabama case They seem to be applying the anti-Purcell principle, which is the Supreme Court’s going to intervene even at the last minute, even as ballots are already being cast, because there’s such a huge concern about the voters voting with an unconstitutional map. No. Again, you could take the principle idea that the constitutionality is the thing that should matter the most, when… and even if that requires last-minute federal intervention, that’s okay. The problem is, as you suggest, the inconsistency. Purcell principle for thee, but not for me.
Jen Rubin
And in Louisiana, in fact, folks have already been cast. And the governor says, oh, no big deal, doesn’t really matter. Is there grounds for litigation on that basis? I mean, there are actual voters who cast actual ballots.
Rick Hasen, UCLA Law
So, right, so early voting had started, and… what the governor announced after early voting has started is, if you vote in a House race, U.S. House of Representatives, that vote’s not going to count. Your votes for other races, including the U.S. Senate, those will count, but not for the House races. This has been challenged, on a couple of grounds. First, federal ground, saying, this is a violation of due process, this is a violation of equal protection. I’m not… optimistic that those kinds of challenges will work, because there will be another chance to, vote, so it’s not as though votes are being thrown out and voters will never be able to vote in that election again. I do think it’s, somewhat odd and, unseemly for the state to redo an election, because they don’t like how the results are going to be, but it’s not like they’re throwing off the results of a completed election. The other grounds, and I’m not an expert on Louisiana law, but the argument is under state law, the governor only had the ability to, postpone the election, call a redo, if there’s an emergency. And it’s very odd to think that there could be an emergency that affects only one set of races, but not others. Like, if there’s an emergency in Louisiana, let’s say there’s a hurricane, you gotta postpone the elections, you postpone all the elections. You don’t just postpone for one race, or one set of races. So, I don’t know how the Alabama courts… excuse me, I don’t know how the Louisiana courts are going to rule on that, but that seems to me, at least on its face, to be a stronger argument than the federal arguments.
Jen Rubin
So, in essence, they’re saying, CalA is the emergency. It’s an emergency opportunity for them to take more states, but that’s their… That’s their story, and they’re sticking to it. Yeah.
Rick Hasen, UCLA Law
You know, one thing I’d say is that, you know, they talk about facts on the ground. The fact is, this election has now been conducted over additional time, and voters are not voting in those House races, because they’ve been told their votes don’t count, and so… what’s the remedy? You can’t redo what had just happened in the past. You’re gonna have to have a new election, so even if the governor violated the law, I’m not sure I know what the remedy would be, at least a remedy that would effectively restore the status quo ante.
Jen Rubin
Let’s talk about, Virginia. Virginia, the Supreme Court there ruled that All this talk about Election Day being Election Day. No, no, no, no. Election Day includes the period of early voting. Therefore, the process wasn’t followed in Virginia. You don’t get to have this special election, which brought in the new map. The state of Virginia has appealed to the Supreme Court. I’m scratching my head trying to think of what federal question is here, and on what basis might they even hope, even if the Supreme Court were inclined to do it, that they might reverse this. Can you shed some light on that?
Rick Hasen, UCLA Law
Right, so ordinarily, the state Supreme Court is the final arbiter of what state law means, and the U.S. Supreme Court doesn’t get involved. In their emergency petition to the Supreme Court, Virginia makes essentially two arguments. The first is. What Election Day means for purposes of a federal election is not really a question of state law. It kind of piggybacks on federal law, and if you look at federal law, you know, the interpretation of the state Supreme Court and the 4-3 majority was. Inconsistent with federal law. That puts Democrats in the odd position of seeming to be endorsing the views of the Republicans in a different pending Supreme Court case called Watson about whether late-arriving mail ballots can be counted in federal elections. That case could come out anytime. The other argument is, I would say even more of a stretch. This is a complicated one, I’ll just scratch the surface here. So, there’s something called the Independent State Legislature Theory. The idea is that The Constitution in Article 1, Section 4 says that state legislatures are the ones who get to set the rules for running federal elections. There’s a parallel provision in Article 2 that says that state legislature gets to set the rules for running presidential elections. Now, Article 1… the Article 1 power is subject to congressional override, the Article 2 power is not. And the independent state legislature theory, as it’s been understood by the Supreme Court in a case called Moore v. Harper in 2023, is that just because a state court interprets a state statute involving federal elections, or interprets a state constitutional provision involving federal elections. That doesn’t take away from the power of the state legislature. We have to understand the state legislature’s power as being part of how the state divides its power, generally, among the different branches of government. But, a state court could engage in such a crazy interpretation of a state statute or of a state constitution. It’s really not doing law, it’s doing politics. That it would be said to, and this is the language in Moore v. Harper, arrogate the power of the state legislature. We don’t know exactly what arrogate the power means. The Supreme Court and Moore didn’t tell us. Justice Kavanaugh wrote a concurring opinion where he gave some ideas based on something that Chief Justice Rehnquist had written in the concurring opinion in the Bush v. Gore case. So, so, The state of Virginia now is arguing that the Virginia Supreme Court arrogated the power of the state legislature by so mangling the interpretation of what election means, or election day means, in its interpretation that it usurped the power of the legislature. Not only do I think this is a weak argument, this was a 4-3 case, I might not have agreed with the majority on how they interpret an election, but this was normal statutory interpretation, the kind of things that courts do every day, so it wasn’t really the crazy outlier case. So it seems to me, on the merits, it’s going to be very hard to win on that. But also, this independent state legislature theory has almost always been used by Republicans to try to stop…
Jen Rubin
Yes.
Rick Hasen, UCLA Law
Democratic or liberal cases, so, interpretations. So, for example, in 2020, during the pandemic, voters went to the Pennsylvania Supreme Court and said, there’s a pandemic, the mail’s running late, even though the legislature said, ballots have to be received by Election Day, the state constitutional right to vote should allow an extension. And the state Supreme Court agreed, and they extended the deadline for 3 days. Republicans went to the Supreme Court, said, you’ve arrogated the power of the state legislature, you’re violating the Constitution. Justice Alito thought enough of that argument to have 10,000 ballots that arrived after Election Day in those three-day periods segregated. We never got to litigation over whether those ballots should have been counted in the presidential election, because Joe Biden won by 60,000 votes, and there were only 10,000 ballots at issue. But this is an argument that Republicans have raised. If Democrats are successful in Virginia, which I don’t think they’re going to be, but if they are, it’s going to involve the Supreme Court even more in the, second-guessing of state Supreme Court opinions, and given the composition with the court, I think that might be, you know, winning the battle, but losing the war. But, we’ll see. We can get a ruling in that one anytime. It’s a shadow docket case. We may not get any reasoning. It would not surprise me if the court just simply denies that, motion without, Any kind of explanation.
Jen Rubin
This seems to be a situation in which politicians felt like they had to do something, and what they’ve chosen to do could be worse than… the cure could be worse than the disease here. We have a whole series of states Florida. maybe Mississippi that are looking at redistricting, bringing forth new maps, although today, Governor of Mississippi seemed to put off a special session. When all of this is through the process, do you expect Republicans to have picked up more seats, and on the other side, are there any Democratic prospects to counterbalance the way they did in California after Texas?
Rick Hasen, UCLA Law
Right, so California was pretty much an even match with Texas, Democrats were, squeezed out of 5 seats in Texas. Democrats were squeezed out of 5 seats in California. It’s really bad for representation, putting aside the partisanship. I mean, this is just… a race to the bottom. Yes. But there are more Republican states than Democratic states that, one, haven’t already conducted their primaries, and two, have seats that could easily be eliminated that were seats that were… we thought required by the Voting Rights Act until Calais. So, you know, I’m not kind of a bean counter, but from my reading of others, like Nate Cohn in the New York Times. looks like Republicans could end up netting enough seats that Democrats would essentially have to win the national vote for the House, which is not a thing, but just a convenient way of thinking about it, by at least 4%. That’s something that is doable by Democrats, but it just becomes harder for Democrats to take control of the House. And I should say, by 2028, A lot more of this is gonna shake out.
Jen Rubin
It’s good enough.
Rick Hasen, UCLA Law
tremendous pressure by Democrats on states like New York and New Jersey, Maryland, to re-redistrict, throw out commissions, and just engage in the same kind of crass partisanship and drawing lines that we’re seeing in these. mostly southern, for now, Republican states. And so, will that end up being a wash? Probably not, because there are more Republican states with a trifecta, with both houses of Congress… both houses of the state legislature and the governor, controlled by one party that could kind of muscle through these things. Democratic states more likely to have commissions, so you, as in California, you have to get around that commission. In California, there had to be a vote by the people to impose the map. So in the end of the day, Republicans will probably win in this race to the bottom by how much is hard to say, and of course, very hard to handicap what the 2028, congressional map, and congressional balance of power is gonna look like. We’re having a hard enough time figuring out 2026, because it’s a moving target.
Jen Rubin
Well, one can imagine some very dramatic changes that would displace, Calais. People have talked about moving to a proportional representation system. Let me ask a slightly different question, because that’s really a political question, whether that’s feasible, whether that’s possible, whether that, could potentially get through. Calais be remedied by Congress, or has the court simply now kind of shoehorned the 14th and 15th Amendment into the Voting Rights Act to make it impossible to protect minority voting rights?
Rick Hasen, UCLA Law
So I think that the answer to that question is not clear. Again, to go back to Kella. The court said this was a racial gerrymander, because as we interpret the Voting Rights Act, that second district never had to be drawn. So, even though it’s a constitutional case, it really turned on a question of statutory interpretation. This is what we think the Voting Rights Act means, and that was inconsistent with what the Court had said that the Voting Rights Act meant in the past. So, at least in theory, Congress could come in, and they could pass a statute saying, no, we actually meant what you had said for 40 years, the Voting Rights Act meant, the so-called Jingles Test, 1986 Supreme Court case. We’re restoring that. If that happened, then… and that, of course, is not going to happen while Donald Trump is president, the earliest that could happen would be 2029, I think, if Democrats have control of both houses of Congress and the presidency, then that would tee up the question of whether Congress has powers under… granted to it under the 14th and 15th Amendment to impose this standard, or whether race consciousness at all is allowed when it’s going beyond remedying intentional discrimination in voting. Certainly, Justice Alito, I think, would say even race consciousness is unconstitutional. Would that get a majority of the Supreme Court? If that’s happening in 2029, and talking about adding justice to the court and term limits is happening, would it be kind of like what happened with the Supreme Court under Franklin Roosevelt, where…
Jen Rubin
Yes!
Rick Hasen, UCLA Law
The court blinked… I mean, it’s just hard to know, but as a technical matter, the court’s understanding of the Voting Rights Act was a matter of statutory interpretation, and so Congress could try, and I would advise Congress to try, because that.
Jen Rubin
Yes.
Rick Hasen, UCLA Law
puts you in your face, like, no, this is what we mean. I dare you to say that this is unconstitutional, and to once again thwart the will of Congress and, you know, thwart the will of the voters.
Jen Rubin
Congress done this before. They previously said, no, we really, really meant it. You don’t need intentional discrimination. What happened to that?
Rick Hasen, UCLA Law
Well, so, now let’s go back to 1980. Well, let’s go back to 1965. In 1965, Congress passed the Voting Rights Act. It doesn’t say anything about vote dilution claims, about redistricting claims. In the 1960s and 70s, the Supreme Court starts developing a constitutional doctrine of vote dilution that seemed to say, at least sometimes, if you could show a discriminatory effect of a map on minority voters, that could be unconstitutional. But the Supreme Court put a stop to that in 1980 in a case called City of Mobile v. Bolden. In that case, the court said, if you’re going to make out a 15th Amendment constitutional vote dilution case, you have to show discriminatory intent. That is, the lines were drawn with the intent to discriminate against minority voters. Okay, so then in 1982, Congress amends the Voting Rights Act, and this is what you’re referring to, to beef up Section 2 and to impose the standard that was so-called the results test, or the effects test, that we just want to focus on discriminatory Effects on minority voters. That was the understanding until a few weeks ago in Calais. In 1986, in the Thornburg v. Jingles case, the Supreme Court came up with a test to operationalize the new Section 2 to figure out when there is enough of a discriminatory effect to require the drawing of one of these minority opportunity districts. And what Alito did, which to me is so infuriating, is to try to take apart what the language of Section 2 means, to say he’s not overturning jingles, but of course he’s overturning jingles, to say he’s not overturning Allen v. Milligan, but of course he’s overturning Allen v. Milligan, and saying he’s just engaged in a normal act of statutory interpretation. He’s not consistent with the text of the statute, he doesn’t even mention the results test, which was… the language that Congress put in there in 1982. He doesn’t talk about purpose. He doesn’t talk about the fact that in 2006, Congress amended the Voting Rights Act yet again, and they didn’t change the understanding of Section 2 that had been in place since 1982. And so, I see Alito as a kind of a coward. What he’s really saying is, Voting Rights Act is unconstitutional if it has any teeth, you know, why not just come out and say that, and then we can understand where the court is. And, you know, then he would, of course, take a political hit But, we wouldn’t be in this pretend land where the Voting Rights Act exists on the books, but not, in fact, protecting voters.
Jen Rubin
Exactly. And that would, of course, lean into the argument that Congress should amend the Voting Rights Act, should put it back in their face, say, no, we really, really, really mean it, and, oh, by the way, we have this power under the 14th Amendment that Congress is supposed to be making that decision. And that’s where I kind of want to Sum up and end this. the post-Civil War amendments look to Congress to correct the ills of the legacy of slavery. And it was not based upon this notion that the chief has of a colorblind society. But now the court seems to say, we don’t really care what Congress is. We, the court, are going to tell you how it’s going to be, and we’re going to use some 20th or 21st century theory derived from the Federalist Society about what the discrimination means. This would seem to be a horrendous transfer of power from an elected branch to the court. Is that a fair reading of what’s going on, and should that be of concern to Americans?
Rick Hasen, UCLA Law
I think that’s exactly right. You know, what… what… Reading between the lines, what Alito’s opinion says is that Congress’s powers are limited to remedying intentional discrimination. Their enforcement powers are quite narrow. I mean, this is ignoring the history of those Reconstruction amendments coming after slavery, of race-conscious laws that were passed right after the passage of the 13th, 14th, 15th Amendments. It was understood at the time that race consciousness was required to, create more of a democracy in the United States, and, the court… this is not new, that the Supreme Court, under, first Rehnquist and then Roberts, beginning in the early 2000s, has been curtailing congressional power. Look, so they’ve been curtailing congressional power, they’ve been raising presidential power, and they’ve been raising their own power. And so, Congress is really the one that is getting the short shrift, but of course, Congress now is so dysfunctional, it’s not as though they can fight back, and so… Maybe things will be different if Democrats retake control of Congress. But, the court views Congress as kind of a supplicant that comes to it, and they are, you know, not a co-equal branch, but in fact a superior branch, and it’s… I think it’s a measure of hubris, and it’s a measure of, the court’s willingness to impose a kind of juriscentric ideology where all political questions get decided, not legal questions, all political questions get decided by the Supreme Court, and that’s really not healthy for a democracy.
Jen Rubin
And the great irony, of course, is for years, that’s what conservatives said the Warren Court was doing, and how terrible it was, and what a damage to democracy that was brought out, and you didn’t get the normal compromise and push and shove that goes on in the legislature. Now somebody else’s ox is being gored, so we are where we are. Rick, I have become more radical with time in terms of court reform, because I don’t see that the court is shameable anymore. They seem truly not to care about criticism of the shadow docket, about the dissents that point out their really Intellectual dishonesty. Is that what it’s gonna take, real court reform, in order to kind of pull the court back into a normal relationship with the other branches?
Rick Hasen, UCLA Law
It might be necessary, and like you, I’ve been very resistant to the idea of court reform, but it does seem that, something is going to have to change if we’re going to become a democracy, a full democracy once again, and It’s certainly hitting a nerve to have Chief Justice Roberts speaking at a judicial conference saying, we’re not political actors. You have Justice Barrett saying, we’re not political hacks, read our opinions. Well, you know, I’ve been reading the opinions, and I’m afraid that one potential… The conclusion is either they’re political hacks, or they are so the victims of motivated reasoning that they can… and this goes back to your earlier point about the Purcell Doctrine and the failure to follow it, is that they just… they can’t see how inconsistent they really are in their approach to long politics.
Jen Rubin
In fact, the closer you read, the more horrified you become, actually. It doesn’t work that way, Mr. Chief Justice. Rick, as always, thank you so much for getting into the weeds. This is critical discussion, and although the general public may not grasp all of the small nuances, the fact that our democracy is being deformed by a non-elected Supreme Court should be of concern to all Americans. So, we are entering a very interesting period of time for our democracy. But thank you, as always. It’s always a pleasure. It’s always fun to nerd out with you on the Supreme Court, and we look forward to having you back soon.
Rick Hasen, UCLA Law
Thanks so much.
