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I would imagine uh that your expertise is uh quite in demand right now. Yes. Sadly. Uh explain very quickly if you could what has happened to uh what we call the Voting Rights Act in this most recent Supreme Court decision. Yeah. Last week, the Supreme Court issued a decision in a case called Louisiana versus Kelly that essentially removed the remaining power from a key section of the Voting Rights Act of 1965, right? And in so doing, they kind of rendered the act a nully. They had already uh given the act a body blow in 2013 in a case called Shelby County versus Holder. And when they issued that decision, Chief Justice Roberts said, "Yes, but you still have another part of the
Voting Rights Act that's really strong, and you can use that. It's it's section two. It's nationwide." And then he had that in his decision. He said that in 2013, you're okay. You're okay cuz you've still got section two. The section that he took out was section five. Yes. And then last week they took section two. And did he then go, "Look, section one, you're still okay." No, he did not. So what is what did the removal of section five do? So let take a step back.
Historically representation for African-Americans uh was specifically uh excluded. They were excluded from voting. Maybe not uh by a specific law, but by pole taxes or other things after reconstruction. And we let that go for 80 years. Yeah. After 80 years, they passed the voting rights act to ensure that representation would be grant that people's voices would be heard in those communities. Yeah. And what was the result of that act? Yeah. So just one edit to that is that you know after the civil war there was an effort to ensure that black people could vote and that was through uh the three amendments that were passed to our
constitution after the civil war. one ending slavery, the 14th amendment, birthright citizenship and um equal protection of laws. And then the 15th amendment said you cannot prevent someone from voting based on race or color or previous condition of servitude. So that was supposed to mean black people could vote and for a while black people could vote in the south. I mean we had eight members of Congress elected during that reconstruction period, two United States senators. Then what you had at the turn of the century was all of these states making new constitutions and coming up with the kinds of uh laws that you described.
Pole taxes, literacy tests, uh grandfather clauses. If your grandfather could vote in 1850, then you could vote. Um that's where grandfather clauses. Yeah. Oh wow. So they came up with all these tactics to keep black people from voting. And of course it was overall enforced by just mob violence, the violence of the clan, right? Uh that really controlled so many and never explicitly said they never explicitly said that this was all done as a way to circumvent no what the freedom meant, what those amendments to the constitution meant.
No. And when black people tried to challenge it, like in 1911 in the case called Guiles versus Harris, where a black man said, Alabama won't let me register to vote. I meet all the criteria. I should be able to register. The Supreme Court of the United States in a decision by the esteemed jurist Oliver Wendell Holmes said there's really nothing we can do about it because if we tell Alabama that they have to register you to vote, they're not going to do it anyway. Oh my god. The Supreme Court was going we could do what's right. And yet so that meant that black people and remember a majority of black people lived in the South. Mhm.
A majority of black people still live in the south, right? And so, yes, there were communities in the north where black people could exercise the right to vote, but most black people could not vote until the civil rights movement pushed for voting rights. And that culminated in that march across the Edund Pettis Bridge and the brutality of Alabama state troopers and then months later the signing of the Voting Rights Act. And the Voting Rights Act of 1965 completely changed the game. When that act was um finally passed by Congress, there were only 72 black elected officials in the entire United States.
You're not talking about just Senate House represent. You're literally talking about state houses anywhere. 72 in the whole country. There you go. And then of course it started to do its work. And so by 1980, right before this the Congress reauthorized the Voting Rights Act, we were up to about 1500. And then Congress amended the Voting Rights Act in 1982 to change the test used for establishing discrimination under section two. Right. And after that passed, what was the test that they used or what was the test prior to that? What was the test?
Sure. So, uh, we had thought that the test was that if you showed that a particular practice used by a state resulted in black people not being able to elect their candidates of choice, it violated the Voting Rights Act. Okay? Then the Supreme Court in 1980 in a decision uh called Mobile versus Balden said, "No, no, no, no. The test has to be that you have to show that the jurisdiction was intentionally racist." Like intended. Yes. So the guy would literally have to come up and go, "Yeah, no, we're just trying to be racist." And of course, even though they didn't do that in reconstruction, they never did that.
Well, there was there were a few cases where there's some interesting um hearings that took place in state houses where they said some things, but that certainly was not the norm by 1980, right? Which is why the effects test was so important. So the Supreme Court says, "No, it has to be intentional discrimination." And Congress comes back and says in 1982, "No, we meant you can just show that the effects of the decision produced this result." And these are the amendments to the Voting Rights Act in 1982. You know who really was opposed to those amendments in 1982? I'm going to say Oliver Wendel Holmes.
No, a very bright young lawyer who worked in the Department of Justice first as a special aid to uh It's not going well. Yeah. As a special aid to the attorney general and then to the solicitor general. He was the point person on trying to convince Congress not to pass these amendments that would address the Supreme Court's decision in Mobile versus Balden. And that is a young attorney. His name was John Roberts. So this has been something he's been on for some time. He's a patient man. He's a patient. He's a patient man. So in terms of section five, section five uh is that the section where uh they said in these certain areas where there were uh racial exclusions and laws that explicitly did
that, you would have to before you made a change to the way that you counted these votes, uh appeal to the United States Congress. That's not to the Congress to not the Congress, but section So there's two big sections of the Voting Rights Act. What we were just talking about was section two. Section five, the one that was essentially gutted in 2013, has been often called the most successful provision of any civil rights statute because it is the only one that allows you to get at the discrimination before it actually comes into law and happens. Okay? So for a number of jurisdictions that had a history of voting discrimination, if they wanted to make a change to some voting procedure, if they
wanted to eliminate an office, if they wanted to reduce the number of members, if they wanted to redistrict, they had to first get permission or we called it pre-clarance from a federal authority, either the attorney general or a federal district court in the District of Columbia. And that's the system that we worked with for many, many years until 2013. And so that was from 1965 to 2013. That's what happened. In 2006, the United States Congress overwhelmingly in a bipartisan basis, 30 396 to 33 in the House, 58 to zero in the Senate, reauthorized that provision of section 5. But in 2013, John Roberts said, "No, no, no. This is a stain on the South. We are punishing the South, and things have changed. we don't need
to have this pre-clarance provision anymore. What are the metrics for how he decided things have changed? Because I would assume those metrics are the result of section five. Yeah, it's so interesting. Um is this is it literally as bad as section five has worked so well. Let's remove section five. That's what the late great Justice Ruth Bader Ginsburg said. She said that eliminating section 5 now is like using an umbrella and it keeps you dry and then you say, "Well, let me throw away the umbrella because I'm dry even though it's raining outside." So that's what happened. So we So that was now gone.
Now we didn't have pre-clance. And you all may have noticed in the last 10 years this explosion of voter ID laws and voter suppression laws that came as a result of 2013 because they don't have to get pre-clance. Although to be fair, if you were trying to get pre-clarance from this administration, I would imagine they would just go, "You're pre-clared." You know, it's so funny because I started out as a civil rights lawyer in uh when Bush was president. And so, um the attorney general was, you know, HW um and so the attorney general was a Republican. I remember um the solicitor general was Ken Star. And I remember when the first section 2 case I ever filed went to the Supreme Court, Houston Lawyers Association versus
Texas, the Justice Department was on our side. I mean, the our co-consel was Ken Star. So, even Republican um administrations in the past, old school Republican, right, used to still try at least and enforce the Voting Rights Act. I absolutely agree with you that this uh Department of Justice would never do that. But nevertheless, that was the law. So, we lost that in 2013. All we had was section two, which gives people like me and other civil rights lawyers the ability to sue when a law has clearly had the effect. So post one was pre-clance, now you have a post appeal. Yes. But now they have decided essentially what the Supreme Court did, and I think this is really important because it gives you a sense of the kind of power they're exercising these days.
What they did was overturn the amendments to section two that Congress had passed in 1982. Now, they didn't say that's what they're doing, but they're saying we now need to return to intentional discrimination. That no, you have to be able to prove it in the way that you had to before the amendments that Congress. Correct. And I should point out something else. After Congress uh amended the section 2 in 1982, of course, it was challenged and it went up to the Supreme Court and the Supreme Court upheld it in Thornberg versus Jingles in 1986. Right? So that means Thornberg versus Jingles. Really or as Justice Alto likes to say, Gingles. It's actually Jingles though. But the point sounds like a dog sued the Supreme Court.
The point is that they overturned not only Congress's amendment, but they also overturned their own president. Thornberg versus Jingles. And in the decision, uh, Justice Alito, who wrote the decision, explicitly says, "We are not overturning the effects test. We are not overturning Thornberg versus Jingles even though that's what they're but that's the tell. The tell is that they know how outrageous it would be for them to decide to rewrite a congressional statute. So when this was done when the Voting Rights Act was first passed through Congress, I would imagine they took great pains to say, "But this isn't quotas. We're not advocating quotas. We're not advocating uh just creating districts so that black
people can elect black people. That they must have said that a few times. They absolutely did. I mean, it's really important. I mean, they certainly said it very explicitly in the 1982 amendment because that bright young lawyer, John Roberts, insisted that this was quotas. And so, they made it clear that nothing in this uh provision requires proportional representation. Right? And remember, the test is always whether or not the system allows black voters to elect their candidate of choice. It is not the focus is not on black elected officials. The focus is on black voters. Now, so they're saying if you distill the percentage of black voters and put them into other districts so that their votes
cannot be decisive. That's right. That would be considered. That's right. But they have said that what this actually is DEI or quotas. Would that be what their argument is? That sounds absolutely correct. That is what they would say. And if you remember the whole point of the voting rights act, right, is to protect the voting strength of minorities who have been discriminated against and to protect the voting rights of minorities whose candidates of choice are most often not supported by the white majority. You have to prove that in a case. By the way, that candidate Memphis is represented by a Jewish guy, but it's a majority of it's not vibes. You actually in the litigation, you have to show that there's racially polarized voting, that
white voters don't support the candidate of choice of black voters. You have to do all of that stuff. You can do the math, but you can do it. Like, it's it's a real test that is pretty rigorous. Um, and so what we're faced with now is just the removal of that as a measure. And so, how do we ensure we protect minorities? It brings up this sort of larger point that you see here, which is how is a society expected to emlarate the damage done by specifically racist laws which we have had low these you know many years is the idea now that to try and address that is in itself racist that it's it's literally he who smelt it dealt it racism is That what we're dealing with?
I hate that's what it is, but that is what it is. It's literally if you try So basically what they said, you could prove that a district had this discriminatory effect. But if you try to repair it, if you try to remedy it by creating a district that creates an opportunity for black voters to be able to elect their representative of choice, that makes you the racist. But isn't the high concentration of voters of color in itself the result of policies that were explicitly racist? Well, the only way you can actually make majority black voting districts is because of segregation. That's my point. Do you have another show for that in the density of the areas they live in if not for the exclusively racist housing policies and other things?
Absolutely. So it's not like you know black people are all coming together and saying let's come together and form a district. We are the most segregated you know country that we have ever been. And that's the reason why you can create those districts. But now what the court is allowing is any state can decide they're going to redistrict. And not just a state. It could be judicial districts. It could be county commissions. It could be city council districts. And they can offer any excuse. This court even explicitly said incumbent protection. So if you want to make sure that let's say Mike Johnson in Shreveport, the current speaker of the house keeps his district, that's a good enough reason to undermine the ability of black voters.
You can be partisan. You can care about incumbents. You can just said uh you can't do that because oh because it's a red state. So a red state is allowed to go in and go. It's okay for me to dissolve democratic power just not black power. And if black power is synonymous with democratic power, so be it. That is that's pretty much the majority opinion. Why? Let me ask you a question. Why in God's name is partisan gerrymandering allowed? That seems to be the root of the evil. Well, that is allowed because in 2018 the Supreme Court, IF THIS IS MR. JINGLES AGAIN, I AM GOING TO BE VERY UPSET. NO, NO, NO. In a case called Rusho versus Common Cause, Yeah. The Supreme Court said this case is so interesting because it was
brought by Democrats challenging redistricting in North Carolina and Republicans challenging redistricting in Maryland. So these two cases come together and end up at the Supreme Court. Bipartisan great opportunity to address the way in which extreme partisan gerrymandering undermines our democratic system. Right. Taxation without representation. Yeah. And the Supreme Court said it really looks like it um threatens our democratic norms, but there's nothing we can do about it. We are just mere judges. We are judges who can decide that abortion is not a fundamental right. We can decide that major questions uh have to be decided by us. we can overturn citizens. We can do citizens united. We can do all the things, but we can't do
this. And so that was 2018. And so that's the reason that President Trump could call up the governor of Texas and say, "We need five more seats, right? If that were that should be illegal to any sentient person, right? That you just call up and get as many districts as you want, right? But he could do that because in 2018 the Supreme Court said partisan redistricting is just something we can't partisan jerrymandering is something we can't address. It's so phenomenal because it means that our democratic institutions are the architects of our democratic demise. That is correct.
Stunning. It's stunning. Please, please tell Oh, and I made you I've made you sigh. I don't want to make you sigh. Oh, please tell me that there is a remediation on the horizon or something along the lines that this fight continues. Well, John, I just refuse to um to pretend that this is not as serious as it is, right? And uh I think there is a pathway forward, but that pathway has many obstacles in front of it. And we have to meet those obstacles. First of all, we all have to overwhelmingly vote in the midterm elections because there has to be a change in Congress. So there has to be a change in the Hungary strategy is really the only way to go. You have to vote in such numbers that it overwhelms the tilted.
Well, but there's one more piece to it, John. Please. And because you've heard everything that I've said and so you understand that but only retained about 20%. A lot of the names. I need you in my class. So, um, but you know, as you know, as we just discussed, this Supreme Court is prepared to overrule congressional statutes, right? So, we need Congress to be prepared to certainly pass some statutes that will protect voting rights and that will deal with partisan gerrymandering, but we also need a Supreme Court that is committed to maintaining democracy in this country. And that means there has to be Supreme Court reform also, right? And
holding them to account. And those are, by the way, both uh and I so appreciate the seriousness of the matter in which you speak because those are certainly tall orders in a dysfunctional system. Absolutely. As it is certainly constitution, but we don't have any choice but to fight and we got to get very serious about it. Uh I so appreciate you coming by and explaining this and thank you for enlightening us in all measure of it. Uh, ladies and gentlemen, please check out also Cherylyn's newsletter. It's on substr.
