Hey folks, Joyce Vance here. Preet is out this week, so today I'm joined by Janae Nelson. Janae is the president and director counsel of the NAACP's Legal Defense Fund and a voting rights and election law expert. Recently, she argued the major voting rights case, Louisiana v. Calais, before the Supreme Court. We discussed the court's ruling and what it means for the future of the Voting Rights Act. Listen to the full conversation now in the Insider feed. And if you're not yet a member, we hope you'll join our community to help support our work and get access to exclusive subscriber benefits. Head to cafe.com slash insider or staytuned.substack.com. Now, enjoy a free excerpt from our conversation. You know, I'm going to jump right in without any pleasantries because I want to talk with you about Louisiana v. Calais. At this point, we all know the outcome of this case. Gerrymandering is now A-OK. How would you describe this decision that the court made, the legal decision, in terms that are accessible to people who maybe haven't had the opportunity to read the majority opinion and the dissent to, which I want to talk with you about. So there are two big things happened in this case. First, the congressional map that governs Louisiana's congressional elections was struck down. And that map was one that was purposed to remedy racial discrimination that we established on a robust record at trial a few years ago, and that six federal judges affirmed was the right remedy for this discrimination. Ultimately, this case was then challenged by some self-styled non-Black voters. Ultimately, they were white voters. How did they describe themselves in the complaint just so we're all clear on that. Yes, that's how they describe themselves in the complaint. I'm not quite sure why yet. And they then challenged the map that was the remedy, that was the fix, right? That was supposed to undo the racial discrimination that we established quite firmly. And they challenged that map and said that it was itself discriminatory because it considered race. And so the Supreme Court did away with that map And that has now sent Louisiana elections which were already underway when the court issued its decision into absolute chaos chaos that we still litigating in this very moment So we have not had a moment to rest since the decision came out But the second and the more egregious and atrocious part of the decision is that it ultimately gutted Section 2 of the Voting Rights Act. And I think what's worse is that the court was quite opaque about the fact that it took a sword to the Voting Rights Act. And the reason why that's so frustrating is because it shows me that the court wants to hold on to some modicum of public integrity while it is doing such deceitful work in its decision. And what it did is not only reject a decision that should have governed this case, a case that we won just three years ago out of Alabama called Allen v. Milligan, not only did the court completely ignore and reject its holdings in that case, which by a term that us lawyers use, stare decisis, governs and really requires the court to follow its own precedent, But it also trampled on Congress's powers. And Congress has the right under the 14th and 15th Amendments to enact legislation that will allow the guarantees of those amendments to really take root and be meaningful for people. So in the case of the 14th Amendment and the Equal Protection Clause, it allows Congress to enact civil rights statutes that take that concept of equal protection and extends it to the workplace or to protecting people with disabilities or to protecting against gender discrimination in sports or, you know, fill in the blank. Any way to think about equal application of the law. Similarly, Congress can enact legislation under the 15th Amendment, which says that there can be no race discrimination in voting. And that principle is important by itself, but it needs legislation to really animate it, to make it true and to be more specific about the ways that we can protect against race discrimination in voting. And so Congress did that through the Voting Rights Act. Congress, under the 14th and 15th Amendments, passed this transformative legislation, which the Supreme Court had prior to this case called the crown jewel of civil rights legislation. And it is sad that in this particular case the Supreme Court has effectively ended any further application of the Voting Rights Act in any meaningful way We no longer have Section 5 We no longer have Section 2 to combat voter suppression And we no longer have Section 2 to combat race discrimination in redistricting. Is Section 2 completely dead? When you think about what the court did, what's left from the Ginglas test, what do you think? Is there any possibility that any litigant could succeed using a Section 2 theory. You know, in the Alabama case, there is some evidence of intentional discrimination, not just discriminatory impact, which of course was always one of the virtues of Section 2 that you could argue discriminatory effect. But is there even a modicum of opportunity left for plaintiffs under Section 2, or is it as dead as Section 5 is? So that is an excellent question, and I'm going to answer it in two ways. One is sort of retrospectively. So you mentioned Alabama. And in the case that I mentioned earlier, Allen versus Milligan, we did have a finding of intentional discrimination. And so in cases like that, yes, Section 2 still applies. Justice Alito was very clear that in proving discrimination, you have to prove intent. Now, I will point out that this is another very specific way in which that opinion tramples on Congress's powers. It tramples on separation of powers because Congress had already clarified in 1982 that it did not want to impose an intent requirement on voters to prove that they were discriminated against. that if we take the principle of the 15th Amendment seriously, that there should be no racial discrimination in voting, then we don't care whether it's intentional discrimination or whether it's discrimination that results from policy choices that could be avoided, whether it's proven with a smoking gun or through circumstantial evidence, or just based on the impact of the particular law on particular communities and racial groups. The Congress has been really clear about that. But what Justice Alito and the five other justices who joined him did is say that now you must prove intentional discrimination. So the reason that I say Section 2 is effectively gone and the Voting Rights Act is effectively dead is because you would be hard pressed to find a state legislator or any other actor who going to leave behind evidence of intentional discrimination going forward What the Supreme Court has done is now give every bad actor a perfect excuse to discriminate and cover it with a goal of partisanship. I just want what's best for my party. I want to maximize my party's power. And that is my goal, not race discrimination. And that should provide sufficient cover for any discrimination that happens against Black voters, Latino voters, and other protected voters. So that is what the concern is. I don't think that prior cases where that evidence exists and we were able to prove it in those cases should be affected at all. But going forward, as a practical reality, it's going to be nearly impossible to enforce the statute because most actors will cover their tracks, as they have been doing for many years now. It's just unbelievable when you think about it. After the Voting Rights Act was passed, a big part of the gap between white and black participation, participation by eligible voters in the electoral process, it began to narrow. And we know that since Shelby County versus Holder was issued, the gap has again begun to widen. And so that, I think, you know, is the sort of empirical evidence that underscores the comment that you're making, which is that the Voting Rights Act is meant to end discrimination. We don't care if it's intentional or if it's, you know, quote unquote, just an impact. Oftentimes, it's very hard to prove intent. But what seems to be at stake in this opinion, in a much more, I think, sharply cast fashion, even than in Shelby County v. Holder, is this notion that the court no longer cares about protecting Black voters' rights. And they reframe it as, well, you can't discriminate against white voters either, which would seem to run contrary to history and tradition, something that the court is fond of relying on in other contexts. But I say all of that to ask, near the end of Alito's opinion because the majority decision was written by Justice Alito, he writes a sort of a response to the dissent. And I'm wondering what you made of that. Well, I've got a lot of thoughts about various aspects of Alito's opinion. And I think, again, what is most disconcerting is... thanks for listening to hear the full episode become a member by heading to cafe.com slash insider or stay tuned.substack.com and once again thank you for supporting our work
