Transcription
Welcome to the Court of History. I'm Sydney Blumenthal. I'm here with my compadre Shan Wentz of Princeton University. Uh, we're through talking about Bob Dylan for the moment. For the moment. For the moment. We've had a long discussion about Bob Dylan. But Sean, it seems to me that with the Republican uh defeats that took place in the uh recent elections across the country that um the redistricting that Trump has ordered in the states becomes more urgent for them than ever before. But there's something even more direing and that has a longer span of Republican interest and that is the destruction of the Voting Rights Act and particularly this case before the Supreme Court on section two. What's your view?
Well, yeah, I mean, the Voting Rights Act is at the very core of the Civil Rights Revolution of the 1960s. Um, even in some ways more important than the Civil Rights Act of 1964. But look, I mean, especially Chief Justice Roberts, they seem to have made a uh made a career, devoted themselves, devoted their lives even to um undoing that law. Um, and they're doing so on the, you know, in the very familiar grounds of reverse discrimination and so forth that somehow this this law is in violation of the 14th amendment um, equal protection under the law. And that's the basic way they've gone about it. Um, despite the fact that the court has upheld um various aspects, various provisions in the Voting Rights Act year after year after year, but things have taken a turn and now now I think we're really up against it. I mean, you know, we're we're we'll be talking about this, but section two of the Voting Rights Act is very much on the line in this case that's already been argued um involving the map in Louisiana from 2022. So, we're really at a turning point now. I mean, uh, it looks as if they're going to try to do their best to strike down maybe the well, certainly one of the most important pieces of legislation, um, in American history really, but certainly in the 20th century. Um, and that's going to open up all sorts of difficulties, differences, problems this, you know, for voting and for rights in the United States. Um, they're about to achieve what they've been trying to do for 40 years really. And, um, you know, we'll have to be be be watching.
Yeah. The case was argued on October 15th before the Supreme Court and uh it's Louisiana v Cala, uh as I I believe I pronounced it correctly, and it involves constitutionality of section two of the Voting Rights Act, uh which prohibits election standards and practices that have a discriminatory effect against minority voters. Um, uh the ca the case in favor of uh uh retaining that was argued by Jana Nelson, the president and director council of the NAACP Legal Defense Fund, and she is here with us today. Jana, welcome to the Court of History.
Welcome back to the Court of History.
Thank you. It's it's good to be back. Um, we're very fortunate to have you with us. Can you um set the scene for us and you recently argued um before the Supreme Court on this crucial case. Tell us what your argument was.
Uh, well, that argument in a nutshell was that the court has everything that it needs to affirm the decision that it made a mere 28 months ago in Allen versus Milligan, upholding section 2 of the Voting Rights Act and its application to address racial discrimination in redistricting through appropriate remedies that may or may not take race into account, uh, but are carefully calibrated to be consistent with the 14th and 15th amendments. Uh, this is a reargument as as you may know. We had already argued the case in March of this year and the court had everything it needed then to make the right decision, but it chose to widen the scope of the question uh before the court, and that is what brought us back to the court in October.
Yeah. What was the administration argument uh on the other side?
>> Yeah.
What what's their point?
There were three opponents. Uh, one was the state of Louisiana. The other, uh, were the Cala plaintiffs themselves who challenged a remedial map that would give black voters in Louisiana an opportunity to elect candidates of their choice. And then there was the US government. They all had some version of an argument that section two was no longer necessary because uh conditions in the state of Louisiana had changed so so drastically uh in their view uh that it was no longer needed as an intervention and that to the extent that section two remains, it must be changed in some way. The application should be changed. The underlying precedent of Thorenberg versus Jingles, uh from 1986, that has been relied upon, you know, for for 40 years, should somehow be changed um in a number of ways that would ultimately make the enforcement of section 2 nearly impossible. They all had some variation of argument around that.
Yeah. Well, I when um Justice Kavanaaugh um basically took up the administration's argument, you pushed back at it.
>> Yeah.
And uh you said it would be a staggering reversal of precedent that would throw the maps across the country into chaos. Can you explain this further?
Yes. You know, as I mentioned, the Supreme Court issued a decision uh just a mere two years ago in a case called Allen versus Milligan, which is another case that LDF brought and won uh quite handily before the Supreme Court in a decision authored by Chief Justice Roberts and that and and joined by Justice Kavanaaugh and justices uh Kagan and Sotomayor and Justice Jackson. Uh, so it was a very robust decision embracing section two, recognizing that the court's precedent up to that point made it very clear that section two was constitutional, two, that the uh animating case law like Jingles was uh the right way to enforce section two in a way that made it consistent with the constitution. And that some of the arguments that was at the time raised by the state of Alabama um would effectively make section 2 useless and therefore should be rejected. So arguments that suggested that, you know, a plaintiff who wanted to bring a claim would need to uh use simulated maps uh created by computers that generate thousands and thousands of maps uh to somehow show that the map that they are proposing uh is the most viable one just didn't make a lot of sense. That we've been enforcing section two, we've been using the Jingles framework for 40 years quite successfully and in ways that have been quite narrow and exacting and that that was the right place to land. Um, and so my my goal was to really hold the court to its own words and to its own precedent and to show that it would need to reverse 40 years of precedent under section two, and a hundred plus years of precedent in terms of the constitutionality of Congress's ability to enforce the Reconstruction Amendments through legislation if it chose to undermine section two, because this really is a separation of powers issue. You know, really this is Congress's purview. So that was really important for me to try to bring to the court and make them grapple with those those issues, stare decisis and separation of powers.
Well, the stare decisis though, I mean, what is the other side? What's changed since Milligan as far as they're concerned? I mean, what are they saying? How are they claiming that somehow in two years? I mean, nothing. What what's changed?
>> Well, the only significant development that has changed in the past two years is there's been a change in administration.
There have been no changes in terms of the facts on the ground in the state of Louisiana. There have been no changes in case law at the federal level. There's been no change in our constitution. There's been no change in our federal statutes. So, the only significant change I can point to is that one. And that should have zero effect on how the court or the council in these cases approach this issue.
I'm baffled by the argument that something is unconstitutional because of the passage of time and that somehow there have been changes in circumstances. I mean, if I were to argue a hypothetical, I would say um that because um uh people are obeying the um speed limit in a certain area, we don't need the traffic laws anymore.
>> Right. Right.
>> U
>> That's exactly right.
This is a bizarre argument that they're making.
>> And it's a core argument because it was there in Holder as well. I mean, you know, racism is over. It's It's okay now, right? It's crazy.
>> That's right. I mean, Justice Ginsburg, the late Justice Ginsburg, put it best. She said, "It's like throwing away your umbrella in a rainstorm just because you're not getting wet."
And you know what we've seen since then has been a tsunami of voter suppression laws in the very states that were covered by section five of the Voting Rights Act. And now there's a target on section two. Uh, and and what's really worse here, I would say, is that not only is it that section 2 has served as a deterrent, but we know that just in this case alone, and there are many others that mirror it, but in this case alone, seven federal judges found that there was racial discrimination in the map that we challenged. So there's a current finding of discrimination. So even if there has been a a passage of time of four decades, which is relatively short in the scheme of laws,
>> You're talking about historians here. We Yeah. 40 years is nothing.
>> Precisely. Then the fact that you have current discrimination happening uh and that the conditions in Louisiana are the same, the fact that there has never been a statewide elected official in Louisiana, uh, you know, who is black, you know, elected by by all the voters of Louisiana tells you everything you need to know about the fact that there's still persistent racially polarized voting and that race is compromising the integrity of our electoral process.
Yeah, I've seen uh hypothetical maps of what would happen if um they were to essentially abolish section two, and they would really wipe out most of the black representation, especially across the South. Um, and um you would have a situation that would be parallel to what happened in Reconstruction.
>> Mhm.
When the black um uh representation um as a result of the granting of the franchise um from the Civil War amendments um led to the election by a congressman, which was followed by the reaction of terrorism from the Klan and other terrorist groups like it in what was called Redemption, and that established the regime of Jim Crow.
Sean. Yeah. I mean, the state of Georgia,
>> What happened in Reconstruction?
>> Yeah. The state of Georgia, basically, you know, once blacks got the vote um and started voting in black and not just blacks getting the vote, white Republicans, too. Um, they basically purged purged the legislature of all their black legislators. I mean, it was as simple as that. They just kicked him out. And um, I mean, eventually the federal government did intervene, did get them replaced. It's true. But there was no question that as soon as as soon as black voting rights were secured in the aftermath or during Reconstruction, the reaction was ferocious because that was the ball game. I mean, voting rights, suffrage has always been, this was something that Charles Sumner said, that many people said, it was the core of of of of Reconstruction and of racial justice in America in the aftermath of the Civil War. Everybody knew that. And um, it's, you know, we we all know about the Jim Crow era. We all know about, you know, the grandfather clauses and the poll tax and all the things that had to be abolished in 1964. Um, these these phony ways. It's a bit like showing your driver's license today. These are these are just nonsense ways to racially discriminate. And on class, too. It's not just race. It's class. It's a lot of things, but it's certainly voter suppression. Um, look, but before that, it was far more violent. Before that, it was it was, as you say, it was the Klan. It was um, you know, um, the the forces of order in all of these states um, and basically eventually, you know, overthrew Reconstruction. But the point I'm trying to make, I suppose, is that voting rights is always always the primary target. That's where people go.
>> Yeah.
>> That's absolutely right. It's always been a contested space. Uh, I think, you know, we've we've been lulled into some sense of um, uh, normalcy over the past 60 years. You know, the Voting Rights Act is is 60 years old this very year. And even immediately after its passage, it was challenged, you know, within months of it being passed. And the court had to say in South Carolina versus Katzenbach, this is a constitutional statute and this is a proper exercise of congressional power. And then we were able to enforce it. It had to be extended in in different respects. Uh, we had to develop doctrine to support its enforcement. So even in the course of the 60 years, we haven't had a full 60 years of robust protection. It took really until 1980 when Congress ultimately amended the act to allow uh to allow section 2 to cover results, you know, if if certain laws and practices result in racial discrimination, then we can challenge them and correct them. That's really when we began to see significant expansion of representation, especially in places like the South. And then immediately after that, we in the 90s, you know, were were hit with the Shaw doctrine, you know, Shaw claims where there's effectively a claim of reverse discrimination once identified, once we've identified racial discrimination in the system and try to and try to rectify it. So this has been a tug of war. This has been a back and forth uh for, you know, well over uh a century and a half. And I I hope that we have learned something from that cycle because we're not just talking about a potential loss of representation. We're talking about a loss of protection of an entire group of citizens that will be extraordinarily vulnerable if we don't have representation in Congress, in state legislatures, in city councils, and in other governing bodies across the country.
Yeah. Well, it strikes me that um attempting to strike this down is also an attack literally on uh American history. It is an attempt to obliterate it and to assume that it didn't exist and that there that the reason for this law and that brought it into being um somehow is is theoretical and it's it's not embedded in our history and people's lives that went on for generations. Um, and it's really an attack on uh, well, we talk about the Civil Rights Movement and the Voting Rights Act, but you know, the first Civil Rights Act was proposed during the Civil War uh by Charles Sumner, the senator from Massachusetts, and we got the 13th Amendment um, you know, uh, at the, you know, in 1865. Um, and then the the two other amendments uh establishing uh uh equal rights under the law and voting rights um that Grant, President Grant called the results of the war. Mhm.
>> So, this is really an attempt not simply to overturn one section of a law that goes back to 1965, but something very deep in our history going back to 1865.
>> I I I think that's right. You know, and and when I think of the 15th amendment and the fact that it is the only amendment in the constitution that names race, the only space in the constitution, frankly, that that uses the word race explicitly,
>> Right?
The idea that somehow we should be race blind or we should not consider that fact of American history and current society as we think about how to protect our elections from interference from from contamination. Uh, it is is is just hard to reconcile with, you know, any true sense of history and reality. So I I absolutely agree. This is a rewriting of history. It is a whitewashing of history and it is a complete blinkered uh uh view of our current reality.
It >> It strikes me that the whole passage of time uh question is really uh as about being blinkered about history.
>> I I agree.
>> Yeah. It's it's an attempt to pretend you're simply in the present and not um and that there's no history beyond it. And it's strange that people who would argue on the basis of uh originalism um could um uh suggest uh an argument that uh attempts to nullify history.
>> That's absolutely right. You know, this is an argument that Justice Kavanaaugh was particularly attracted to and it's something that he forecast in uh Allen versus Milligan. You know, toward the end, Justice Thomas, uh who has been an an enemy of the Voting Rights Act for as long as uh I he's been on the bench, um was, you know, very clear that he thinks the Voting Rights Act is no longer necessary. And Justice Kavanaaugh mentioned and and hinted at the idea that, you know, using race to remedy race discrimination can't go on forever. And I agree. I think the moment that race discrimination ends in our electoral process, then we will no longer need to use race and we would no longer be able to actually bring a claim because we wouldn't be able to meet the preconditions and all of the exacting requirements that the case law requires of us. Uh, but what I what I find most disconcerting is that there would be a target on this particular piece of legislation that I call the birthright of and our the birth certificate of our multi-racial democracy that is so foundational to the democracy we claim to be today. And to think that this law in particular would be targeted, if there is a change in how section 2 functions based on some durational limit, then I expect there to be an audit of all of our statutes that have been uh that have come out of Congress's enforcement powers, including the Necessary and Proper Clause, which the court held is, you know, co-extensive with Congress's powers in every other sphere. clear in deciding the constitutionality of the Voting Rights Act. The Supreme Court said many decades ago that it's just as strong and expansive as Congress's powers under the Necessary and Proper Clause. So, I would like to see the court interrogate every statute that Congress issued under that clause as well for some sort of temporal um, you know, uh restriction because you simply should not be targeting statutes that come out of the civil rights movement and that address the scourge of racial discrimination, especially as it concerns a fundamental right.
Yeah. Now, Sean, uh you had a a point that you wanted to elaborate on.
>> Yeah. I mean, going back to the Civil War, um, I'm sorry, my computer messed up, but um, there were those who said in the aftermath of the 13th Amendment, you know, well, slavery's over, you know, root hog or die. Guess you're on your own now. Now the whole thrust of Reconstruction was precisely that you could not take that seriously in the aftermath, that you know that that that you weren't going to take people who have been, you know, given basically social death for for hundreds of years, bring them into society and say, okay, make it on your own. It strikes me as basically they're saying the same thing now. They're saying that after hundreds of years and then, you know, since the Civil War, um, you know, 150 of of of of discrimination, well, it's all over now. It's okay. Um, it has a very nasty legacy because it's it it has this kind of what it's almost as if it's like you're dealing with not with people, with human beings, with society, but with widgets, you know, and and that, you know, that that there is no there is no history here. There are just these, it's almost like the way that, you know, certain kinds of economists talk about people. It's not that they're not people at all. There's no society at all. It's just, you know, abstractions. Well, people aren't abstractions. The law is not abstractions in this sense when you apply it. And history is certainly no abstraction because it's very all too real. And but this is a gambit that goes back, as I say, all the way to the uh to the Civil War era. And uh it's it's just heartbreaking to see it not only appear again but to be to prevail again.
Yeah, I couldn't agree more. And I and I would say that the stakes are even higher at at this moment. We've become acclimated to a certain uh way in which we expect democracy to function. We are an increasingly diverse society and so the idea that we can now have representative bodies that do not reflect the population and that that is a sustainable model um for a nation is is absolutely misguided and and quite perilous and there's so many indicators in our current climate that this will not serve us well. So I remain hopeful that the court will uh stand by its precedent, will acknowledge stare decisis and will do the right thing in this case because as I said, the stakes are beyond just the rights of black voters in Louisiana, which should be enough. Uh, that is that is weighty enough. But this really has a significant impact for elections and elected bodies across the country. And it has even greater impact on the integrity of the Supreme Court and public confidence in it.
Well, I hope that your uh hope is well founded, but uh we will see what this Supreme Court does and um as we all know, um the struggle continues. So, thank you very much for
>> Thank you so much.
>> Informing us about um this case which is absolutely uh critical to the future of our. Jana Nelson, the president and uh director council of the NAACP Legal Defense Fund um subscribed to Legal AF uh uh on behalf of U Sean Mence and myself. This session of the Court of History is now adjourned.
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