Redrawing Democracy

Nate Persily: One of the interesting things about this House of Representatives is that it is actually—when you average it out—one of the fairest aggregate redistricting plans in the nation that we’ve had over the last, say, three or four census cycles. And you saw, if you looked in the last two elections, you didn’t see wild swings that were disproportionate to the vote totals or even out of sync with, say, the presidential election. And so that may change now with these efforts to try to redraw the lines to make them more biased.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.

Earl Warren, the Chief Justice of the United States, called Reynolds v. Sims, and not say Brown v. Board of Education or Miranda v. Arizona, his most important opinion for the Supreme Court. He thought that in Reynolds, the Court had insured that henceforth, elections would reflect the collective public interest embodied in the “one man, one vote” standard, rather than the machinations of special interests.

But gerrymandering and other electoral manipulations have continued.

Indeed, gerrymandering has become more sophisticated than ever. How do we think about the law of democracy and the process of drawing districts? I’m here today joined by my colleague Nathaniel Persily. Nate is the James B. McClatchy Professor of Law here at Stanford and also has appointments in the departments of political science and communication. He has been an expert line drawer, a special master or court appointed expert, crafting congressional or legislative districting plans in at least seven states, spanning across the country in various ways. And so I’m just really grateful to have you here, Nate, with us today to talk about gerrymandering and where we find ourselves in the year 2025.

Nate Persily: Thanks for having me again. It’s always a pleasure to join you here, and as you know, you were the one who taught me gerrymandering way back in the day, and so I owe all of this to you. So, here’s where we are, which is that we’re now vaulting into unprecedented territory with the possibility of mid-decade partisan gerrymanders in order to recalibrate the partisan margins in Congress.

But to take us back, as you said, the “one person, one vote” cases were a watershed moment, not just for the law of democracy, but for constitutional law. It was, as you said, and as Earl Warren said, seen as the most important cases of his time on the Court because the thought was if you can defend yourself in the political process, you’d be able to vindicate all kinds of other rights that might under be under assault.

And we moved from what was called quantitative vote dilution toward districts then that had roughly equal numbers, to then what was qualitative vote dilution, dealing with race and then dealing with party. And the Supreme Court in the Rucho case not that long ago, said that partisan gerrymandering—it presents a non-justiciable political question, meaning that the federal courts were not going to get involved in partisan gerrymandering. And so that seemed to give a blank check for at least at the beginning of a decade for state legislatures to draw lines. But now…

Pam Karlan: And let me stop you there for just a sec, Nate, to just make clear to those of our listeners who aren’t as deeply versed in this as we are, that what Reynolds v. Sims said is that districts should have roughly equal population for congressional districts. Ultimately, the court kind of ratcheted that down to they should have as nearly equal population as possible. And what that meant is every 10 years after we have the census, it becomes clear that the districts we already have need to be redrawn almost everywhere. And I sometimes use the analogy, with civics audiences and the like, that you might weigh the same as you did 15 years ago, but that weight has shifted. And it’s the same kind of thing with the population, even in a state where the population hasn’t really changed very much between decennial censuses, it will have moved around. So, you have to redraw districts, and normally the census is held in the years ending in zero, the numbers come out in the years ending in one, and by the year ending in two, we’ve redrawn the districts and they’re supposed to be kept in place for the next 10 years.

Nate Persily: That’s right. And we should emphasize that when it comes to congressional districts, I can tell you—as you mentioned before, I have been appointed many times to draw these districts—that when we say “equal population,” we mean really equal population. When we draw those districts, all the congressional districts I’ve ever drawn within a state, they just differ by one person. Not 1%, not 0.1%, but literally one person because we’ve adopted a kind of hyper-notion of equality when it comes to the numbers of people.

Of course, there’s all kinds of fictions involved in that related to how accurate the census is, et cetera, but as our former colleague John Hart Ely used to say, the “one person, one vote” rule is sixth-grade arithmetic. You just divide the population by the number of districts and you come up with a magic number that you can try to achieve. But just because you have equal numbers of people doesn’t mean that the maps are fair because we’ve learned that you can draw districts in such a way as who advantage some groups more than others. Whether you’re talking about it with respect to race or whether you’re talking about it with respect to party. And right now, the controversies that we’re dealing with are really motivated by this partisan gerrymandering impulse in order to shift the balance of power in Congress.

Pam Karlan: And what are the techniques that people who want to gerrymander a district use to get a gerrymandered district? How do they do that?

Nate Persily: We sometimes call them: packing, stacking, cracking, and kidnapping. So you would pack your opponents into as few districts as possible. You would spread your supporters into as many districts as possible. You might “kidnap” incumbents so that you pair them together in order to run them against each other or to take an incumbent out of a favorable district and put ’em in an unfavorable district if you want to eliminate them. And stacking is something you might do outside the congressional realms where you would combine districts together.

But what we’re seeing, not just now in these mid-decade attempts at gerrymandering, but, but in partisan gerrymandering that happened at the beginning of the decade, is an attempt to really optimize for the fortunes of the political party that’s drawing the lines, so that if it’s a 50-50 state, but one party controls the lines, it’s not uncommon that they could get 70 or 80% of the districts if they’re drawn in such a way is to make sure that their party stays in control.

Pam Karlan: That was the story in North Carolina, and you alluded earlier to the Rucho case. North Carolina is a purple state. It went for Donald Trump in the last election but also elected a Democrat as the governor. So, they had, I think it was 13 seats, 14 seats?

Nate Persily: As of Rucho or now?

Pam Karlan: Now.

Nate Persily: Yeah. I think it’s 13.

Pam Karlan: Yeah. And you might expect 7/6 or 8 to 5. And they managed to draw 10 to 3, they thought, and when the guy who was responsible for overseeing this all in the state, legislature was asked, why is it 10 to 3? He says, because we couldn’t figure out how to draw 11.

Nate Persily: That’s right. And with both modern technology, but also the reliability of the political data that we have, and the fact that people’s political preferences are pretty fixed right now, you can draw, with a great deal of reliability, safe districts for one or the other party.

It used to be the case that we would think of gerrymandering as having a kind of natural barrier, or it’s a natural solution, that the more you spread out your supporters, the greater the likelihood that you’d have a kind of a wave election that would then overwhelm, and then maybe you’d lose many more seats. But the more reliable the people’s voting preferences are, the greater confidence you can have, that you can draw these districts in a way to eliminate uncertainty.

Pam Karlan: Yes, and one of the things that’s interesting about this is that lots of people claim to be independents, and yet how they’re going to vote in elections is still really predictable.

Nate Persily: That’s right. When you draw lines—if one were to draw—I haven’t drawn partisan gerrymanders since I tend to be just working for courts,  but those who do, when they’re not using party registration data, because that’s not terribly reliable, what they use are models that predict political performance by census block or even sometimes built up from the individual.

And what I mean by that is if you can reliably predict how a given neighborhood is going to vote in an election, when you combine those neighborhoods together and you put in a little bit of a cushion, you can try to … you can eliminate uncertainty as how it’s going to perform in the next election for a given political party.

Pam Karlan: And gerrymandering has gotten better and better. So the risk/reward tradeoff that, for example, when Justice O’Connor in the Davis v. Bandemer case, which was an early challenge to partisan redistricting in the ’80s, she said, “look, there’s a natural limit to this because of that risk reward trade off.” The thinner you slice the bacon, the more likely you are to lose a bunch of seats. And now that’s not as true. And we have a House of Representatives, a federal House of Representatives, right now that’s incredibly tightly balanced….

Nate Persily: Let me just add one thing there. One of the interesting things about this House of Representatives is that it actually is, when you average it out, one of the fairest aggregate redistricting plans in the nation that we’ve had over the last, say, three, four census cycles. That because, and you saw, if you looked in the last two elections, you didn’t see wild swings that were disproportionate to the vote totals or even out of sync with, say, the presidential election. And so that, that may change now with these efforts to try to redraw the lines to make them more biased.

Pam Karlan: Yeah. And so one of the other things that’s happened over the last, say 25 years is a change not just in the technology of redistricting, but a change in who does the redistricting. So that, for example, if you go back to the 1970s or 1980s, I think in almost every state, it was the state legislature that drew the lines for congressional districts and for state legislative districts and the like.

I think Arkansas was a little different. It had a reapportionment board that was made up of the governor, the secretary of state and attorney general, but in almost every place, redistricting was done by politicians, which makes the United States different than, for example, a lot of other countries in the world that have districts and they have career civil servant boundary commissions and the like. But that changed a lot in the last, say 15 years or so in some jurisdictions.

Nate Persily: That’s right. Arizona was in some ways a leader on this in developing their independent redistricting commission. But then California, in terms of the significance that this has had to the national map, California’s independent redistricting commission has been quite influential. New York…I mean, as a general rule, what you’re seeing is unilateral disarmament by the blue states, and you don’t see it as much in the red states. But as I was saying, Arizona is a little bit different. Utah has a commission. I actually was an advisor to that, but it’s not…when it comes to Congress, it’s merely advisory and that in a lot of other states.

And one of the issues right now is that the Democrats and the Republicans are not equally situated in their ability to, say, take the reins middle of the decade and redraw lines to their advantage.

Pam Karlan: Yeah, so an independent redistricting commission: there are two different things about it. One is it uses different personnel to actually make the decision. And, I think California’s system rivals how the doges were selected in medieval Venice with rounds of lotteries and voting and strike offs and the like. But the idea is to produce a group of people who aren’t themselves directly interested in the process.

And then in a number of these jurisdictions that have gone to independent redistricting commissions, it’s not just that the commission is independent of the politicians, it’s also: they’re given very specific directions about which things they can consider and which things they can’t. And this goes back a little bit to something you were mentioning earlier that you call “kidnapping,” but I sometimes tried to call it “shacking” so it would rhyme with the “packing, stacking, and cracking.” And it was the places that representatives lived. But it led to a really interesting placement of two congressmen from the Los Angeles area, Berman and Sherman, in the same district.

Nate Persily: Yes. I’ve also seen … I’ve done this … when I was appointed to draw the lines in Georgia for the state legislature in, I think it was 2002 or 2003, one of the plaintiffs that brought that case ended up being constitutionally ineligible to run for office because I ended up taking him out of his current district and putting him in another, and he hadn’t actually lived in any district for the continuous six months before the election. And so he actually had to step down. So yeah, that’s one of the strategies that you’re seeing. And let’s emphasize, though, that there are commissions and there are commissions, right? Just because we call something a commission, or even an independent commission, doesn’t mean that they’re necessarily independent.

There are all kinds of varieties of processes in order to select these people. And you can regulate the redistricting process by the people, the principles, and the process. And as you were saying, California really tried to do all three of those. And the commission, which I will be admit, I was pretty skeptical when it was put together because of this Rube Goldberg selection process that tries to ensure that you are politically ignorant. and have not worked in politics or understand redistricting. But they’ve had pretty qualified people who’ve been part of it and it’s worked relatively well. But just because you have a process that selects people in a certain way, doesn’t mean that the legislature then is going to stand by. In some states the redistrict commissions are advisory. Sometimes they don’t … like what happened in, in New York where we had a commission that totally fell apart. And then the legislature came back through its lines and the courts prevented them from doing so. And so there is no one model for having independence in the redistricting process and different states are trying different things.

Pam Karlan: Yes, and I should say that … when you said that the political process can be somewhat resistant, I think, to the case in which the … essentially the legislature of Arizona sued the state over taking its power to redraw congressional lines away. And the Supreme Court only narrowly, five to four, upheld the use of independent redistricting commissions.

Nate Persily: But we are there now at least, that where the use of these commissions for drawing lines is not constitutionally suspect. Though there was, under sort of theories of an independent state legislature doctrine, there was the possibility that the court wouldn’t allow it. But we’ll see, we’ll see what happens going forward here. The challenge right now is that many of the states that do have independent commissions and do have lines that were in place, did so by amending their constitutions. And so, it’s very difficult, in a kind of rapid process, to reamend your constitution, to allow, say, for the retaining of authority by the state legislature to overturn a commission plan.

Pam Karlan: So, we are in the year 2025, which means we’re halfway through the decade that used the 2020 census figures. And obviously we’ll have a whole new set of census figures in 2030 on this. And one of the things that’s interesting is just how much litigation is still going on over the 2020 round of redistricting.

The Supreme Court this year had a case called Louisiana v. Callais that involved the redrawing of the congressional districts in Louisiana. It was a case in which initially a court found that Louisiana’s failure to draw two majority Black districts in a state that has seven districts and is a third African American, violated the Voting Rights Act. The state came back with a remedy for that, that was designed to create another majority Black district, but also to protect the seats of Steve Scalise and Mike Johnson, who are both powerful Republican members of Congress, and that led another group of voters to sue over that remedy, claiming that remedy took race too much into account.

The Supreme Court heard oral argument last year on the case, and on the last day of the term announced, we think we’re going have to have this case argued again and we’ll tell you … and the Supreme Court used this language: “We’ll tell you in due course if we have any additional questions,” which raises this issue of, we’re going to have the 2026 election, most likely conducted from districts that are still under litigation. And that’s not obviously the only case. The Alabama congressional district case is still going on as well. And now as you’ve alluded, we’re going to have another set of issues that come out of what’s going on in Texas.

So, could you share with us what’s actually happening in Texas?

Nate Persily: Sure. Let me just tee up some of those issues that you were just mentioning. Maybe we can talk about them later, which is that there is a fundamental conflict at the Supreme Court among the justices and to some extent in the lower courts, as to what the rules are going to be with respect to race and redistricting and also the constitutionality of the Voting Rights Act, as well as there’s a private right of action, so I hope we can talk about that. But these issues of race do interact with the questions of partisanship, especially in a place like Texas. But just to update us as to where we are in Texas, at the urging of the President and Governor Abbott called the special assessment of the Texas legislature pass a redistricting plan that would add another five seats, they think, five Republican seats, in Texas. And it’s not as if the Republicans didn’t already have a majority in the congressional delegation in Texas they had at least 60% of the districts, I think much more than that. But now they would get five more, and we can talk about some of the reasons that are being lofted as to why they could do this or should do this. But I think ultimately, it’s a partisan land grab here and it’s just a way to try to ensure that a very evenly balanced Congress would stay with a majority in Republican hands.

There are going to be arguments that are made both by those who are challenging the new plan, as well as those who are defending it. Saying that either it was motivated to try to dismantle districts that were drawn predominantly based on race, or in the case of plaintiffs that are going after the districts that because they inevitably, when you redraw districts like this, you’re going to disadvantage a lot of districts that are with substantial shares of Black and Latino populations, that it’s going to either be a violation of the Voting Rights Act or a violation of the Constitution.

Pam Karlan: So I want to unpack that all a little bit, which is the argument in Texas …  there are two different arguments there. There’s what we call reasons and excuses, right? And the excuse that’s being used is that the districts we have are somehow unconstitutional, even though no court has said that. And the Justice Department, I think in what I consider to be quite a partisan move, is trying to support that. But in reality, would Texas be redrawing these districts now if it weren’t for the fact that they think they can get five more Republican seats?

Nate Persily: No. I don’t even quite understand, to be honest, the Justice Department argument that you were mentioning before. And just so we’re clear, what they’re saying, I believe, is that some of the seats in Texas were drawn predominantly to create majority/minority districts that were, say, if you added up the black and Latino population, it might be over 50% of the voting age population in these districts. Now, there’s nothing wrong with that. You can, there are going be plenty of districts, we have them in California, have them all over the country where you have majority/minority districts. It’s hard to say that these in particular were drawn predominantly on the basis of race.

Moreover, the intentional dismantling of these districts could be predominantly based on race, right? If you’re trying to create districts that are intentionally majority white, or it may violate the Voting Rights Act if you’re trying to dilute the influence of Black and Latino voters. But in the end, I almost feel like that legal argument, that kind of inside baseball argument that you and I would make, it’s not really even the one that’s being made by those who are drawing the lines. When I hear the line drawers in Texas talk about it, they’re like, they say, look, we’re a Republican state. Donald Trump won this state. We control the process. He should have if not just a majority, a significant majority of the congressional seats. And so it’s not as if they’re totally like putting their, all their eggs in the legal rationale basket here, that it’s somehow … constitutionally mandated that they redraw districts, so there are five more Republican seats.

Pam Karlan: Yeah and as you mentioned earlier, the Supreme Court in the Rucho case said that federal courts can’t do anything no matter how blatant a partisan redistricting is, that’s just non-justiciable. And I would assume that the Texas courts are not going to impose, as the courts have in some other states, a state constitutional restriction on partisan redistricting. And so, attacking this as a partisan redistricting is not going to be a winning move in court. And it’s often seemed to me … I filed an amicus brief in Rucho itself on this issue that the problem is once you say that partisan redistricting is non justiciable, everything is then couched in terms of race. And so everybody’s going to go into court claiming this is a racial gerrymander, or this is racial vote dilution or even when what’s really going on is politics.

Nate Persily: Right. And I think that you’ll see that here. Let’s be honest, this is not the first time that Texas has either redrawn districts in the middle of a decade or been the subject of redistrict controversies, pretty much every 10 years….

Pam Karlan: Yeah. I don’t think Texas has had a redistricting since 1970, which is the first post-Reynolds redistricting that didn’t end up in federal court.

Nate Persily: Texas, Georgia, and North Carolina have competed in providing the number of cases that we teach in the law of democracy here. It’s been an embarrassment of riches on that. Or an embarrassment. But in Texas the Democrats gerrymandered for several decades. The Republicans, when they got the reins of power in the 2000 redistricting, re-redrew the lines and then re-drew the lines in the in the middle of the decade, a famous case where the Democrats fled the state in order to prevent it there from being a quorum and it was … there was all kinds of drama.

But this would be …What I think is unique here is how it’s tied into national politics and also how significant a shift it might be. Five seats in a state that has 30-something seats is … that’s a significant shift and it would have pretty dramatic political implications, especially given that Congress is hanging by a thread.

Pam Karlan: Yes. And you started talking about this earlier, and I’d like to go back to it: there are blue states that have Republican seats in them that they could theoretically carve up, but there are disabled from doing that in a variety of ways.

Nate Persily: That’s right. So there are demographic reasons it’s difficult, there are legal reasons that are difficult, right? So it’s not as if every state is equally able to redraw its lines in order to prefer one party over the other. And there are demographic reasons that sometimes it’s difficult if, for example, the population, is very difficult to disperse in kind of pizza pie fashion, where you would go into a city to try to draw slices of people to go into the suburbs and the rural areas.

Sometimes just the math makes it very difficult. But then there’s, then there are legal reasons that are tied into that, which is that, if you are a state without high minority population, and you, and the optimal way, in order to advantage, say the Democratic party is to draw out to split up the Black and Latino districts, right? Then you’re going to run into problems under the Voting Rights Act. And in, in doing that, then you really could incur legal liability. And so they won’t allow you to disperse Democrats as efficiently as possible. Now, that’s not to say that Texas won’t face the same thing. Plenty of what we’re seeing, whether it was, as you mentioned before, Alabama, Louisiana, Texas, the Voting Rights Act applies there as well.

And so if you end up going and breaking up a lot of those majority/minority districts or heavily minority districts, that could be a violation of section two, the Voting Rights Act. But each state has different barriers, and then add on top of that the largely progressive move in states to take power away from the legislatures in places like California and New York, then puts Democrats on the back foot when they’re … if they were trying to respond to, say, partisan gerrymanders in Texas.

Pam Karlan: Yeah, so California has this independent redistricting commission, and so there’s this question: can California actually do a mid-decade redistricting, as opposed to Texas where they clearly can, and they have already done one, as you alluded to in an earlier case, the Supreme Court allowed them to do it. Now, that was to replace a court-drawn plan with a legislative plan, whereas here it’s a legislative plan doing another legislative plan.

And one of the things you also just slid in there was if Texas does this, it might be that they get challenged under the Voting Rights Act for diluting minority voting strength, but the Supreme Court has in front of it right now a petition in a case from North Dakota that involves a Native American group that raises the question whether the Voting Rights Act can even be litigated by private parties. This is what’s sometimes called the private right of action issue. I think for the last 50, 60 years, soon to be of the Voting Rights Act (we’re celebrating the 60th anniversary of the Voting Rights Act this summer), everyone has assumed that a voter who is denied rights under the Voting Rights Act can bring a lawsuit. And yet the Eighth Circuit Court of Appeals held in the Turtle Band case that the Voting Rights Act can only be enforced by the Department of Justice.

Nate Persily: So, the potential Supreme Court clipping of the Voting Rights Act can come in many different vectors. There’s that one you just mentioned, which is that: we’ve been wrong all along. That all of these Section 2 voting rights cases that have gone through the district courts, and even the Supreme Court, that they never should have been brought by private parties. That it should have been only the DOJ and that is … that would be a significant hit to voting rights litigation.

Pam Karlan: That would’ve been a significant hit in any time in American history because the Civil Rights Division voting section, although quite expert, and really terrific at litigating cases in the past, never had that many lawyers in it. So, they couldn’t possibly have brought all these cases. But today what you have is a voting rights section that’s been completely gutted. The career leadership of that section is almost entirely gone. The lawyers in that section are almost entirely gone, and the current Assistant Attorney General has been an opponent of the Voting Rights Act, as far as I can tell, throughout her career.

Nate Persily: So, there is that issue, which is who brings these challenges, and as you saying before, it’s often going to be private plaintiffs that have the greatest incentive and the resources and the desire to bring a lot of these Section 2 cases. But then there’s this looming issue, and you referenced the Louisiana case, about the collision course between the Voting Rights Act and the 14th Amendment and the theory of colorblindness that undergirds many of the justices’ opinions here and with both the Alabama case and the Louisiana case, in the background is this question as to whether the Voting Rights Act can be used in a way to compel the creation of minority opportunity districts, whether it’s majority minority districts or ones where they are likely to elect their candidates of choice. And we may see in the next year an assault on the Voting Rights Act in all those different spheres, whether in the lower courts or at the Supreme Court. This decision to order reargument in the Louisiana case suggests that there’s a significant number of justices who are willing to entertain the possibility that whatever Louisiana did in trying to ward off a Section 2 violation may have violated the Constitution. And so, they may revisit some of the issues that they seem to go in the direction of upholding the Voting Rights Act in that earlier Alabama case, Milliken. But right now there’s a … who knows which way the court is going.

Pam Karlan: It’s a really tumultuous time for the Voting Rights Act, along so many different dimensions. What do you think is going happen in Texas? Do you think they actually will manage to draw a plan that gains them five seats? Or is this coming up against that risk-reward trade off if they’re that aggressive?

Nate Persily: So, I don’t know whether they will get five seats. I was just looking at it right now. So currently the Republicans hold 25 of Texas’ 38 House seats. And so the question is whether they can go up to about 30 of the 38 House seats … Ordinarily, if you look at aggressive gerrymanders throughout history, they don’t perform all … exactly as intended, especially if you’re talking about this many seats.

Pam Karlan: Yes.

Nate Persily: But I think it’s likely that they’d get three. I think it’s possible they get four. I just think that they’re … these are pretty contorted districts in order to group certain incumbents together in order to increase the numbers of Republicans in those given districts.

It really depends. We still don’t know where we’re going to be in a year and in three months or so when it comes to the favorability of the president and of the different parties. Because if you look at the past as a general rule, presidents lose seats, their party loses seats in midterm elections, and given how close the margins are in Congress, we would expect that to happen this time as well. Enough seats that then the Democrats would take control. But this is trying to put a, some kind of cushion in there to make sure the normal sort of physics of politics will be blunted by some partisan gerrymandering these states. And it really does depend on what their, in terms of across the entire map of the country, whether the Democrats are going to retaliate in some of these other states.

But I think those who are drawing the maps in Texas are feeling pretty good that they can insulate themselves from a lot of the uncertainty.

Pam Karlan: It’s so ironic. We tell ourselves this story that every two years voters go into the voting booth and pick their member of the House of Representatives. And right now it’s the other way around. The politicians are going into a room and picking their voters and it raises, I think, serious questions about American democracy at a time when we’re seeing all of these other questions about American democracy being raised as well.

So, in addition to all of the other ferment over redistricting that’s going on, there’s some ferment at the Supreme Court itself. This past term, the Supreme Court heard oral argument in a case Louisiana v. Callais, that was about whether Louisiana, which redrew its congressional districts to comply with a finding that the failure to draw a second majority Black congressional district violated the Voting Rights Act, whether the remedy that Louisiana put into place violated the Constitution under the so-called Shaw Doctrine, which says that race can’t be the predominant factor in a redistricting. And although the court heard oral argument in the case in the fall, on the last day of the term, the Supreme Court announced it would hear reargument in the case and it would tell us, in due course as the Supreme Court put it, what the reargument would be about, and now they’ve told us.

Nate Persily: That’s right. And the question, as they phrase it is the parties are directed to file supplemental briefs addressing the following question raised on pages 36 to 38 of the brief appellees. And that is whether the state’s intentional creation of a second majority minority congressional district violates the 14th or 15th amendments to the U.S. Constitution. And so the question in this case, now, that will be reargued, it’s not that dramatically different than what was originally argued, but if you look at the brief that was filed in reference to this question, it’s fundamentally whether following Section 2 of the Voting Rights Act, as we have understood it for decades, whether that is almost inevitably going to be a violation of the Constitution because one will end a state or a jurisdiction will end up drawing a district, which is predominantly based on race.

Pam Karlan: Yeah. And that goes to essentially Congress’s power to enforce the 14th Amendment. It goes to what the 14th Amendment means, and it could result in a profound shift in the law that governs redistricting in the United States.

Nate Persily: I think we should just highlight a little bit about what was happening in Louisiana. So there was a case brought under Section 2 to compel the creation of a majority African American district there because it could be drawn. It was not that different than what we saw in Alabama, in this Milliken case, where this Supreme Court said, “Yes, you have to draw this second majority Black district.” And here what the state did is it drew a second, somewhat contorted district, and it did so in order to avoid threatening certain powerful incumbents in Louisiana.

And so you can get strange-shaped districts for all kinds of reasons. Sure, you could get strange-shaped districts because you try to cobble together different communities based on race. Or you could have what could be a very compact, say, minority district that then turns into Swiss cheese because you end up for partisan or incumbency reasons, sculpting out different areas. And the eventual district, which is on its way to the Supreme Court again, is string-shaped. But it’s not really because of compliance with the Voting Rights Act, it’s because of all the other decisions that went into place in the drawing of the line.

Pam Karlan: Yeah. I mean, it was the, it’s oddly shaped in order to protect Mike Johnson and Steve Scalia’s seats. Not to put too fine a point on it.

Nate Persily: And so now … we I think we need to for viewers or listeners to this podcast, emphasize what this means. It’s very difficult to see a scenario under which a state could say it’s complying with the Voting Rights Act, or plaintiffs could come in with a remedy to a voting rights violation that would require the creation of a minority opportunity district, majority minority district without running afoul of the Constitution. Because those pages in the brief that were referenced in that, in, in the Supreme Court’s expression of the question presented basically are about whether you can ever comply with the Constitution if you’re intentionally trying to comply with Section 2 of the Voting Rights Act, by creating one of these districts.

Pam Karlan: And there’s a part of the brief that’s on those pages that argues that the time is passed for us to have any kind of remedy for racial exclusion in Louisiana, which is to my mind, just a stunning claim on the part of the litigants given the state of play in Louisiana.

Nate Persily: One thing that I think people need to understand is it’s not as if either states are or are forced to maximize the number of majority minority districts, right? It’s not as if that you have an obligation as a state under the Voting Rights Act to draw majority minority districts wherever you can.

And if you were to do so, that could violate the Constitution. But Section 2 cases are actually quite hard to bring and they’re expensive. And one of the key things that makes it expensive is you have to show that there are levels of racial polarization in a particular area that require the creation of some of these districts that are attentive to race in order to prevent dilution of the minority population because were you not to attend to the concentrations of minorities in the state, you may end up, because of racial polarization, diluting their vote.

And so here, what Section 2 requires courts to do, would be to figure out whether there’s levels of racial polarization. If there are, then those districts are required under the law, but if there isn’t, and there are many places in the country where it isn’t required, or that the minority community is too small and can’t create a majority minority district, that then you wouldn’t have to draw those districts.

Pam Karlan: Yeah, and it’s worth remembering that the only reason Louisiana has even one majority Black district is because Section 2 of the Voting Rights Act required them to draw that district. Think otherwise, in the 1980s Louisiana tried not to draw a majority Black district this time around, even though Black voters are a substantial share of the population, they minimized the number of seats they drew relative to the voting strength. And so I think, this case really raises this question whether the Supreme Court is going to go after the Voting Rights Act, the way it went after affirmative action, and the way that at least some justices have suggested they want to go after disparate impact theory altogether.

Nate Persily: So I do think that last point is an important one, which is that this is about more than even the Voting Rights Act. It’s about whether a series of civil rights legislation, frankly, at both the federal and the state level, right? whether they would be constitutional or not. Because they require you to think about the racial implications of state action, and so here, what they will be … the reason, if we had to read the tea leaves or to predict the future, if the Supreme Court is going to side with the plaintiffs in this case, is that they will be saying: all right, because you were trying to prevent a discriminatory impact here, and you did so by thinking about the racial implications and then developing a remedy that would protect minority representation, that is inherently in conflict with the Equal Protection clause of the 14th amendment.

Pam Karlan: Yeah. And this kind of ties us back to another episode of the podcast, one I did recently with Rick Banks, talking about disparate impact, which has been a kind of fundamental piece of American law since 1970.

Nate Persily: And this is where we are. I wonder if you think there are any ways that they could slice this thinly enough so that it applies to the facts in Louisiana, but doesn’t essentially get the headlines of: Supreme Court Guts Section 2 of the Voting Rights Act as which were the headlines that they got when they gutted Section 5  of the Voting Rights Act in the Shelby County case.

Pam Karlan: These people can always slice the baloney in all sorts of interesting configurations. What I’m more worried about myself is that they actually got the Voting Rights Act, but it doesn’t get those headlines because they write it in a way that makes it look as if this is just about one particular district in Louisiana, rather than something that will make it difficult to have any of these cases brought anywhere.

Nate Persily: I think that is the more likely outcome. In some ways this feels a little bit like Citizens United in that, if you remember, they argued the case in the spring and then the Supreme Court asked for reargument in the fall, and then Solicitor General Elena Kagan reargued it on the question basically whether restrictions on corporate expenditures were unconstitutional or not. And then the Supreme Court took more of a meat cleaver than a scalpel to that statute and made sure that you couldn’t ban corporate independent expenditures so that they were engaging in electioneering. And so here you … the only reason to add, I would think, that they’ve pushed it to reargument is that this is going to be a significant case. And so they’re going  … because the question presented is not that different from what they had in the spring except that now they’re pointing specifically to the facts that were alleged in the brief. And the notion that the creation of a majority minority district is not that …  that compliance with Section 2 by doing so is not a compelling state interest that will allow you to evade the strictures of the 14th Amendment.

Pam Karlan: Yeah, the Supreme Court has sometimes backed off of this kind of thing. I think they did with regard to a case now about 30 years ago involving Section 1981, where they looked at first as if they were going to hold that it didn’t apply to anything and then backed off a little bit. But I do worry here that they’re going to do some serious damage to the parts of the Voting Rights Act that they haven’t already damaged.

So I want thank Nate Persily for joining us today. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.