Here’s what to expect this week: The Gerrymandering Epidemic Continues The Supreme Court’s decision in Callais continues to make clear all the reasons we needed, and continue to need, a Voting Rights Act. And it isn’t about protecting white voters. Congress had an entirely different intent when it passed the Act, an intent that DOJ has forgotten to remove mention of from its website:
Section 2 “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the [specified] language minority groups,” according to the website, which hasn’t been updated by this administration, at least not yet. “[T]he Supreme Court explained that the ‘essence of a Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.’” Congress clarified that the courts should look to “the history of official voting-related discrimination in the state or political subdivision,” when determining if the law has been violated. In the states hurriedly enacting new maps that eliminate Black voting power, that history involves denying Black people the right to vote. Instead of using Section 2 to fix that, the Court and Southern state legislatures are turning the law on its head and making a mockery of the rights it was meant to protect. When the Court gutted Section 5 of the act in Shelby County v. Holder, Justice Ruth Bader Ginsburg accused the majority of shutting the umbrella that was meant to protect voters in the middle of a rainstorm who weren’t getting wet, because the umbrella was working. The case was decided in 2013, but even before the Supreme Court formally gutted Section 5 of the Act, repressive measures were being adopted in states like Alabama, which adopted a stepped-up voter identification requirement that made it more difficult for parts of the population, including Black voters, to exercise their rights, expecting that the Court would do away with Section 5’s preclearance provision. A study at the Brennan Center explained the impact: “The racial turnout gap — the difference between white and nonwhite turnout rates in elections — has been consistently growing since at least 2008, reaching 18 percentage points in the 2022 midterm elections. If the gap did not exist, nearly 14 million additional ballots would have come from voters of color that year.” The analysis was based on nearly 1 billion vote records and controlled for factors like regional differences, income, and education. The kind of behavior the Act was meant to prevent is exactly what’s happening, as Black voting power is diluted with new maps that are being adopted. And the Court seems to have abandoned its allegiance to the Purcell principle, which it has used in the past to prevent changes from being made too close to an election. Some of the new measures adopted by the states are being challenged, or will be challenged in court, and we’ll get a chance to see if the rules are different now that the Court is focused on protecting white voters from discrimination, which was the story behind Callais. For instance, Tennessee’s extraordinary gerrymander was accompanied by a change to state law, so that election officials no longer have to advise voters about changes to their designated polling places as a result of the newly drawn maps. It’s easy to imagine how this plays out: voters with limited time because of family responsibilities go to what they think is the right polling place. They wait in a long line, maybe for hours, before being told they’re in the wrong location. At every step, the process is being redesigned to insert more friction, in hopes that Democratic-leaning voters will be dissuaded from participating. As Marc Elias noted, “Republicans defended the map by claiming that only population and politics were considered when the new map was created, not race.” But of course, the two are inextricably intertwined in Southern elections, despite the pretense the Court adopted. To put all of this into context, consider the importance of the right to vote. At bottom, it’s the right that unlocks all of the other rights, the essence of democracy. Efforts by the Trump faction to impede that right—whether it’s by making it more difficult to register, more difficult to vote, or more difficult to have your vote count—is an effort to lock up all of our other rights. The NAACP filed a lawsuit challenging Tennessee’s new gerrymander late last week. The complaint explains that “The timing of drawing Tennessee’s congressional districts is governed by Tennessee law, including Section 2-16-102 of the Tennessee Code, which provides: ‘The general assembly shall establish the composition of districts for the election of members of the house of representatives in congress after each enumeration and apportionment of representation by the congress of the United States. The districts may not be changed between apportionments.’” The NAACP is asking the court to issue a declaratory judgment that the late-decade redistricting violates the law and to enter an injunction that will prevent the new maps from going into effect.
There are reports that South Carolina is getting ready to join in this week, with a proposal that would gerrymander its only Black member of Congress, Jim Clyburn, into a district that, at least in theory, is designed to make it more difficult for the veteran Congressman to win. But it’s not clear that the South Carolina Senate will extend the legislative session to permit action to be taken. Currently, the state has seven seats in the House and only one Black representative, although the state is roughly 25% African American. Alito’s Mistake in Callais Late last week, The Guardian reported that Justice Alito relied on flawed data to justify his majority opinion in Callais. That opinion is predicated on the view that it is no longer necessary to apply the Voting Rights Act as a corrective for historic voter suppression because Black voter turnout has caught up. Of course, that doesn’t square up with the Brennan Center data we discussed up above. But Alito wrote that Black voter turnout exceeded white voter turnout in two of the five most recent presidential elections, both nationally and in Louisiana. He relied on data that the Solicitor General of the United States, who was not a party to the case, but who filed an amicus brief, presented to the Court:
The data is flawed because it calculates voter turnout in Louisiana as a proportion of the total population of each racial group, for people over the age of 18. But that isn’t the same as calculating eligible voters, because total population includes non-citizens, people with felony convictions, and others who are ineligible to vote. For instance, Black people are more likely to have felony convictions in South Carolina than white people are, which skews the data. Perhaps Justice Alito should have paid more attention to Justice Ginsburg’s explanation about closing the umbrella prematurely. She was right. Oral Argument in the DC Circuit on Trump Executive Orders On Thursday, the D.C. Circuit will hear oral argument in the cases regarding Trump’s executive orders that were designed to punish law firms. The terms of the executive orders made it more difficult, if not impossible, for law firms that the president viewed as representing clients or causes he disagreed with to do business. The cases brought by the law firms have been consolidated for the appeal. So far, every court to consider one of the orders has found them to be illegal.
We discussed the executive orders here when they were first issued, and again here, when the administration dismissed the appeals it will argue later this week before abruptly changing course and asking to reinstate them. Four law firms are involved: Perkins Coie, Jenner and Block, WilmerHale, and Susman Godfrey. There is also an executive order against Mark Zaid, a lawyer known for his work representing whistleblowers. He is represented by Abbe Lowell. Lowell has argued in his briefs that the executive orders turn security clearances, necessary for lawyers in this field to do business, into political weapons. Perkins Coie’s brief to the Court of Appeals opens like this: “One year ago, the President did something no other president had done before: issue an executive order declaring a law firm whose clients and representations he dislikes ‘dishonest and dangerous’ and deploying the levers of federal power to try to put the firm out of business. That was a perilous moment for appellee Perkins, the legal profession, and the rule of law. Nine law firms, cowed by the threat of firm-ending sanctions, ‘settled’ with the President …Four different district judges recognized the President’s executive orders for what they are: shocking abuses of power that trample the constitutional rights of the law firms and their clients. This Court should recognize the same.” Two of the judges on the panel that will hear the case, Chief Judge Sri Srinivasan and Judge Cornelia Pillard, were appointed by President Obama. The third judge, Neomi Rao, is a Trump appointee. Kash On The Hill FBI Director Kash Patel will join the administrator of the DEA, the Director of the ATF, and the head of the U.S. Marshal’s Service for budget hearings in the Senate on Tuesday afternoon. It’s typical for the four DOJ law enforcement agencies to do this jointly. Despite the intricacies of the federal budget, the question on everyone’s mind will likely be whether Patel will be passing out bottles of his special Ka$h Patel, FBI Director, Bourbon.
Atlantic reporter Sarah Fitzpatrick, who wrote the original expose on Patel’s erratic behavior in office, had a new story last week. Fitzpatrick wrote, “it is not unusual for him [Patel] to travel with a supply of personalized branded bourbon. The bottles bear the imprint of the Kentucky distillery Woodford Reserve, and are engraved with the words ‘Kash Patel FBI Director,’ as well as a rendering of an FBI shield. Surrounding the shield is a band of text featuring Patel’s director title and his favored spelling of his first name: Ka$h. An eagle holds the shield in its talons, along with the number 9, presumably a reference to Patel’s place in the history of FBI directors.” Finally The administrative stay in the mifepristone case ends on Monday. That means that unless the Supreme Court issues an order regarding whether the injunction should stay in place while the litigation proceeds, the Fifth Circuit’s ban on obtaining the abortion drug via telehealth goes into effect. Given that the Court virtually disallowed nationwide injunctions last June in Trump v. Casa, it’s difficult to see the legally consistent path to permitting this one to go into effect. And, in the 2023-2024 term mifepristone case, the Court stayed efforts to restrict the availability of the drug from going into effect during the pendency of the lawsuit (before it dismissed it rather than decided the substantive issues, because it found the plaintiffs lacked standing). The smart money would seem to be on similar treatment here, but this is a Court that has been willing to ignore the past to put abortion out of reach for American women, so we will wait and see. There’s a busy week ahead of us. But Donald Trump is spending the evening on Truth Social, reposting memes about his popularity.
The latest NPR/PBS News/Marist poll shows Trump with just a 37% approval rating; 59% of those polled disapproved of his performance. That's the worst score this poll has given Trump in either of his terms in office. We’re in this together, Joyce You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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