Transcription
This is Democracy Watch. Mark, this is a really important episode because we have something imminently coming up that I think everybody should be paying attention to that is not getting any coverage. Um, can you explain what's about to happen at the Supreme Court and why everyone needs to be paying attention to this?
Yeah, Brian, we've done a lot of videos, but there perhaps has not been a more important one than this. So, I want to start by asking everyone to do me a favor and subscribe to this channel and hit the bell in front of you to stay informed when new episodes are posted because the Supreme Court is about to hear our argument in a couple of days in a case out of Louisiana that will literally decide whether the Voting Rights Act is remains in good law uh and remains a protection for minority voting rights prevents Republicans from redistricting themselves into permanent power in the House of Representatives or whether the Supreme Court backs away from that, says You know what? The times have changed. No more protection for minority voters and no constraints on Republicans in the deep south to engage in absolutely horrific wholesale uh uh gerrymandering.
This is a five alarm fire. I mean, you know, if there is any case in America that you, the audience, need to be paying attention to and you need to be really really engaged in, it is this Klay versus Louisiana. It is something that Brian and I have talked about before. It is something we are going to talk about moving forward. So, please do me a personal favor. Subscribe to this channel, hit that bell because it is vitally important for you to understand what is going on in this case in every step of the process moving forward.
So, let's talk about the the practical implications of what happens if the Supreme Court decides to gut what's remaining of the Voting Rights Act. This is section two of the Voting Rights Act. This this uh involves the preservation of majority uh black districts or or opportunity districts as they're called. What happens if the Supreme Court decides to gut what's left of the Voting Rights Act to those existing opportunity districts across the country and states across the country?
Yeah. So what people need to understand is when we talk about section five and Shelby County, this is the case from 2013 that people were very upset, correctly upset as gutting a key provision of the voting rights act. That provision applied only to states with histories of discrimination voting. What it basically said was those states couldn't change their voting laws without getting pre-clared those changes to make sure they didn't disadvantage minority voters. But there was another provision and in fact in Shelby County the chief justice cites this other provision section two of the voting rights act as applying nationwide and what it does is it it prevents vote dilution of minority voters votes everywhere everywhere in the country and it has particular application in the redistricting context. What it basically does in the redistricting context is says that white legislators, legislators, Republican legislators cannot divvy up black voters into a variety of districts and therefore deprive them of their ability to elect candidates of choice, particularly in jurisdictions where that kind of behavior has gone on before. The net effect of that has been that throughout the deep south, but also as you point out, not in the deep south, in states around the country, Native Americans in some places, Hispanics in places like Texas have been protected from these kinds of vote dilution tactics. Well, if section two is struck down, what it means is that Texas will be able to go back and redistrict again and destroy a bunch of districts where right now black voters and Hispanic voters are able to elect their candidates of choice. It means in Alabama and Louisiana and in Mississippi and in Florida and in Georgia and in South Carolina, just to name a few of the states, the that districts that have historically been created to protect black voters from again being diluted, you know, here hither and yan into various districts and losing voting power. Those districts would no longer be protected under federal voting rights law. It could have a swing on the partisan level of 20 or 30 districts. On the black and Hispanic representation level, it would be even more devastating and could have catastrophic effects.
So, this is really the whole ballgame as you look at cases pending before the Supreme Court this term. This is the one to pay attention to. And as I mentioned, Brian and I have talked about this before because this case was argued once before in the Supreme Court. It was argued last term in the Supreme Court and we expected initially the Supreme Court would give it the back of the hand. Then as the term went along, we got more and more nervous because the Supreme Court hadn't ruled in it. Well, at the end of the term, rather than deciding the case, they scheduled it for reharing. And that reharing comes up this week. Uh so please pay attention to this case. And I should also note that you have been doing excellent, excellent coverage, relentless coverage of this particular issue among other issues. So if folks who are watching right now are not yet subscribed to Democracy Docket, that's Mark's news outlet that he focuses on everything voting in elections, please subscribe because that is the best outlet to cover along to follow along with this stuff as it continues to break.
Mark, the fact that the Supreme Court decided not to rule on this case, not to give it the back of the hand like we expected that they would and for them, you know, without even being asked by the parties to rule on this particular issue. This was just about one seat in Louisiana and instead the Supreme Court came forward and said, you know what, in fact, let's just hear a case on the merits of section two of the Voting Rights Act altogether. Does the fact that they asked for that without without being asked to to to hear this case, the fact that they did it uh unto themselves, does that suggest that they may be more inclined to rule against section two of the Voting Rights Act?
Yes. And I wish the answer were no. But you know, one of the things, Brian, when you and I started doing this series, we made a deal with one another and with you, the me members of the audience, we're always going to tell it to you straight. We're not just going to give you the happy news. We're going to give you the straight news. And the truth is, this is not good news. Now, it doesn't mean all is lost. It doesn't mean that the case can't wind up in the right place with section two surviving. But let's be clear, you know, the fact that that the state of Louisiana did not come into court initially and say section two is is unconstitutional. That actually the white plaintiffs who brought this case did not come to court to the Supreme Court saying please strike down section two of the Voting Rights Act. And obviously the parties defending the voting rights defending the case didn't. the fact that nobody came to the US Supreme Court asking that this question be decided but that after the case was argued that the Supreme Court on its own asked the parties to brief and argue this case that is an ominous sign again I don't want people giving up hope I don't want people thinking that all is lost because you know the lawyers fighting this case including some lawyers at my firm you know they they are fighting every day for for what's right in this case and they may very well prevail but but we should be very cleareyed about what we're up against here, which is a Supreme Court that decided it wanted to hear this question. And by the way, if you ask me the last time this happened that I can remember, it was a campaign finance case argued in 2009, set for reargument in the fall of 2009 that was decided on January 10th, 202. And that case was Citizens United versus Federal Election Commission. Right. Right. And and that parties did not come in asking for Citizens United to be to be argued. Um, and what we got instead was was a case that's had cataclysmic impacts on our on our campaign finance.
Um, you know, from my vantage and and I think most people watching who aren't attorneys or involved in the intricacies of what goes on in front of the Supreme Court, we see these cases that are very partisan and we just assume I I think that most of the results here are just pre-ordained. that if you have a 6-3 court that on issues uh where most Republicans are going to agree, it's just going to fall on on partisan lines. And so I'm curious from from the perspective of someone who himself has argued in front of the Supreme Court, how important is lawyering in these cases versus just, you know, the the the partisan composition of the court and and and you know, arguments be damned.
You know, I think I think um lawyering matters a lot in the Supreme Court. I think it matters a lot at the trial courts and then it matters a lot in the very high-profile cases of the Supreme Court. I think in between it still matters, but but I think it really matters in these high-profile cases. And here's why. Um because the court may have a sense of where it wants to go. But good lawyers are going to lay out what the consequences of that are. In other words, they're not just making the legal arguments about what the constitutional history is, what the law is, what the precedent is. You know, lower courts have to follow precedent. The Supreme Court can do whatever it wants, right? It doesn't have to follow its past president, as we've seen, unfortunately, it can overturn those precedent. So, one of the things that's different about arguing before the Supreme Court, and as you point out, I've argued four cases in the Supreme Court, and I've won four cases. I'm arguing another case that I'm sure we're going to talk about when it gets closer uh this December before the Supreme Court. So, I've started getting my head in that case. And what you realize that's different about the Supreme Court is that the justices can go in any number of ways that that lower courts can't. And so as an advocate before the Supreme Court trying to put together a coalition of at least five justices, you're trying to figure out what are the things that are going to cause individual justices to think, you know what, doing this thing in the abstract may seem like an okay idea, but actually it creates doctrinal problems or it creates practical problems or it creates jurist credential problems or standing problems or just disability issues or unforeseen consequences. And so a lot of the lawyering that goes into particularly oral argument is trying to frame these questions and help the justices that are undecided on this think through what happens if you actually do this thing. And you can wind up as a result going in with a case you think is going to lose and wind up winning or vice versa. And I'll give you a few examples. You know, I wound up the cases I won were were redistricting cases. They were they were cases involving um protection of minority voting rights. And you know, in a number in a in a couple of those cases, you know, I think we ca we went in and people thought it was a long shot to win. We w up winning and we w up actually winning some conservative justices because I think they understood that what we were arguing, what I was arguing, you know, was kind of sort of fit more neatly in a long range juristprudence rather than maybe a short-term juristprudence from their standpoint. Uh, we saw this in a case that one of my partners argued out of Alabama, which also was a section two voting rights act case involving redistricting, right? That that created a second black Alabama congressional seed or or black opportunity district. And again, I think you could you would have gone into that argument thinking, well, they're not going to prevail because the Supreme Court is hostile section to the Voting Rights Act. By the way, it was this Supreme Court. It was the comp current composition. But I think as you watch that argument unfold, you could see the court be think, okay, actually given the facts of this Alabama case, we really can't get where we want now. The bad news is they're back now with Louisiana, but you know, those kinds of things can happen. The last case I'd mention is the Harper is Mor Harper, which was the the redistricing case out of North Carolina where really everyone thought that that we would watch the Supreme Court adopt the fringe independent state legislature theory. Again, there my law firm represented Becky Harper, the lead plaintiff or, you know, the lead plaintiff below, and then the respondent in the Supreme Court. And again, you saw the conservative justices who may have had an interest in ISL. Who knows? But as the case was argued, they could see how, you know, that where they were being led to is a place that honestly they were just never going to wind up, which is that that courts can't apply their state courts can't apply their state constitutions. So, so you know, don't lose hope that there can be a victory even in these really hard cases. Now, I want to be clear. Don't blame the lawyers if they don't pull a rabbit out of the hat, but don't give up hope that there that that the arguments here may matter.
And finally, let's finish off with this. Uh, as you mentioned, the arguments are on October 15th, which is early in this Supreme Court term. When can we expect some type of uh ruling from the Supreme Court? I I know that you can't pinpoint a day, but what's the range of when we can expect a ruling?
Yeah. So, look, I think that there are two windows I'd be looking at. Okay. The first is early in the term. So, think January or the first week of February. Now, why do I say that's the first window? Because if the Supreme Court wants to rule in time to effect the 2026 elections, it's going to have to issue a ruling in that time window. right now. That would be the worst of all outcomes because one would assume that they'd be trying to rush a ruling quickly to overturn the VRA in order to allow states to draw new maps for 2026. And that would be that doomsday scenario that I laid out where you could watch Republican legislators around the country do midcycle redistricing and really tilt the playing field in in unfair and uh and terrible ways. The second window is the end of the term. Right now, we're talking like June, uh, which is when usually the Supreme Court decides its biggest cases. Right? So, in a normal circumstance, you'd say if the Supreme Court was going to have something really important to say, either good or bad, right? On either side, if it's going to have a major ruling on the Voting Rights Act, you would expect it to come as among the last cases of the term in June. That's when the Alabama case was decided affirming the Voting Rights Act. That's when uh you saw the the Independence Day legislature case out of North Carolina come very end of the term. That's usually when we expect the most controversial and weighty decisions. I think that those are probably the two windows to watch. One would suggest they are trying to rush a decision because they want there to be the ability for states to react in time for 2026. The other would say, "Look, we're not trying to get anything done for 2026. We just think this is a very important issue and so we'll decide it in June and it won't have any impact good or bad for 2026. It will be something that would that would take longer to implement. Um as I mentioned, Citizens United decided in January of of 2010, right? An election year very early on. What you then saw was the application of Citizens United for the 2010 election cycle. And then those other cases I mentioned all came very late in the term uh and really had no impact for that uh that election uh that election cycle.
All right. Well, obviously a lot to stay on top of here. Again, for anybody who's watching, there is no better coverage on this particular issue or most legal issues to be perfectly honest than what Democracy Docket is putting out right now. So, if you are not yet subscribed to Democracy Docket, please do yourself a favor. Support fearless independent journalism and support the invaluable work that Mark and his team are doing by signing up. That link is right here on the screen and also in the post description. You can also find the link to this channel so you can watch more Democracy Watch episodes. That's on the screen as well if you've not yet. And if you haven't liked the video, I mean, if you've watched the video and you like it, hit the like button. You know, it matters. It matters, you know, to the channel as a whole, but honestly, it matters to me and Brian. Like, I look to see I read the comments, so you should also leave a comment. But I but I see I I like to see do people like what we're saying? Do they think what we're saying is useful or not useful? So you can leave a comment, but if you're not up for writing a comment, if that's too much, the least you can do is hit the like button if you like the video. That's it. Completely free. I'll put those links right here on the screen. I'm Brian Taylor Cohen. I'm Mark Elias. This is Democracy Watch. [Music]