“It could be that the combination of Callais and supercharged partisan gerrymandering is legally correct.”
How is this the case? What is “legally correct” is not some innate physical attribute of the universe that can be divined via an exceptionally powerful legal microscope; it is determined by the Court, which itself is largely driven by normative considerations. One of those considerations is the need to apply a somewhat consistent form of legal reasoning—but as evinced by Vieth, a coherent constitutional argument against partisan redistricting was always available.
To suggest that it is “legally correct” for the Court to embrace political practices that lead to the further decay and corruption of our already struggling experiment in democratic governance just seems beyond naive.
After the enactment of the 15th Amendment, I’m guessing about 99% of black men voted for the Republican Party (because the other party was overtly racist and wanted to subjugate black people). Under the logic of Bolden, Alexander, and Callais, Southern Democrats would have been free to gerrymander those black voters out of the political process simply by claiming they were doing so for partisan (not racist) reasons.
That is so obviously incorrect that writing 3,000 words to try to tease this out seems like a waste of time.
When Louisiana, Tennessee, and Alabama read a judicial opinion and all immediately rush to carve up black neighborhoods and eliminate black representation in the South—I think it’s safe to say that was a bad judicial opinion.
Let’s not overthink this one. This shit is fucking gross and racist.
I actually think this piece is a good companion to the pod and is helpful to more fully understand your views.
I'm still greatly worried about the lack of a historical analysis and/or some statutory originalism. If nothing else it seems that the VRA was written in response to reconstruction and Jim Crow that culminated in civil unrest in the '60s. It seems (nearly) everyone at the time understood part of the purpose of the VRA was to bring southern black Americans (back) into the political process. It was disheartening, to say the least, to see Alito misuse and arguably lie with the voting statistics he quoted and then *within days* see the southern states, that the VRA was meant to constrain, jump in to carve up black neighborhoods in redistricting. There are people who were alive in the Jim Crow south who are now having their districts carved up based on race again.
Although the opinions do not say this explicitly, it is hard for me to envision a process where drawing a map explicitly considering race is permitted under this decision. If this is the case, why is race the only prohibited consideration?
By the same logic, shouldn’t consideration of gender violate the 19th Amendment? Shouldn’t consideration of past political viewpoints or membership in a group violate the 1st Amendment?
Although subtle, I think one of the strangest elements of the Callais decision is that it reinforces that certain gerrymanders are justiciable, as the Court struck down a current map on constitutional grounds. Therefore, clearly the Court believes that it has a role in determining whether districting has violated constitutional principles. Indeed, Thomas explicitly grounds his opinion in the 14th Amendment, not the 15th, meaning that equal protection extends to protecting the right to not be unfairly gerrymandered against.
To then limit the Court’s constitutional considerations to race alone is … suspect. To truly be consistent, the Court’s decision should bar consideration of any factor for which the government could not prohibit a person from voting. Clearly this would prevent consideration of race, sex, religion, and political speech (likely including party affiliation).
Personally, I think this would be a great approach, with maps being drawn solely using total population, political subdivisions (for simplicity of down ballot elections) and geographic impediments to travel. For fairness, we could even generate 7 maps and have each party eliminate 3, leaving the least objectionable option to both parties. Unfortunately, this Court seems uninterested in protecting the rights of voters … other than, of course, the poor disenfranchised white voters of Louisiana.
I think even uglier is the validation of the rush to re- districting, contrary to the rationale of Purcell and properly leading to confusion that the the GOP majority intended to “save” the House for the GOP. Better would have been to do the Loper Bright approach of making the ruling effective after the 2026 election. It would have made the decision less bad and less damaging to the Court’s legitimacy.
Agree on the Ugly. As for the textualist interpretation, I can see how somebody could interpret the text as Alito did, if reading the text in a total vacuum without regarding for history or context. At any rate, I do not see how the textualist reading can be squared with precedent, and precedent is supposed to be super strong when interpreting statutes. This new idea of "updating" is doing a ton of work to avoid stare decisis and precedential concerns. My article on the subject here:
I am a subscriber to/follower of Joyce Vance's "CIVIL DISCOURSE" and Steve Vladeck's "DIVIDED ARGUMENT". Here is a comment I recently posted in response to Joyce's article condemning the Supreme Court's decision in the Callais case on the grounds that it had improperly eviscerated the Voting Rights Act. I am simply repeating my comment, this time in response to Bill Baude's similar condemnation published by Steve in yesterday's (May 19) edition of DIVIDED ARGUMENT:
"The basic problem that plagues the litigation over the proper construction of and the constitutionality of the federal voting rights legislation which was passed in the wake of the events in the early 1960's in Selma, Alabama, and elsewhere in the South is the assumption that voting is a GROUP right, as opposed to an INDIVIDUAL right.
Take the core proposition which is at the heart of the opposition to the Supreme Court's recent ruling in the Callais case: that Blacks in Louisiana (members of a minority racial group - at least nationally) have a right to be aggregated in a voting district where they are locally in the majority vis-a-vis other racial groups (presumptively composed of Whites) so that they may elect "one of their own" to represent them in Congress.
To begin with, even if we accept the notion that voting is group right, Black Americans cannot be favored over other racial or ethnic groups. Although Blacks certainly do have special historical and emotional claims to participate in America's political processes, such claims cannot be permitted to upend our national commitment in the Constitution to the rights of everyone where it is provided that "no state [or the federal government] shall deprive ANY PERSON of life, liberty, or property, without due process of law; nor deny to ANY PERSON within its jurisdiction the equal protection of the law." [Edited for clarity].
Besides the fact that this proposition runs counter to the of principles memorialized in the Declaration of Independence and other founding documents to the effect that All Men Are Created Equal, it demeans Blacks by assuming that they do not and can not make up their own minds about who they wish to represent them and that they necessarily want to vote for a member of their own race (and that they need Government help to be able to do it).
Finally, is this not the classic slippery slope? Are there not many other racial and ethnic groups who are similarly situated to the Black communities of Louisiana? Consider Hasidic Jewish communities in New York City. Or Mormons in Utah. Or Scandinavian descendants in Minnesota. Etc., etc. "
I have yet to see any serious response to my commentary on Joyce's piece. (The only exception is the comment to Bill Baude's piece by Paul R. , which comes close to getting at the issue.
I'm really confused by several parts of this post.
(1) you put something in quotations but then say it is "Edited for clarity". Are you referencing part of section 1 of the 14th amendment? "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."?
I'm confused by several aspects of this, but maybe most importantly the "[or the federal government]" edit. The 14th amendment is famously *not* explicit about applying to federal government. As far as I understand, Bolling v. Sharpe, "reverse incorporates" the 14th amendment to apply to the federal government via appeal to the 5th amendment. Personally I think this is a reasonable interpretation, but Bolling v. Sharpe is certainly a much examined decision. Maybe an interesting corollary is that I would bet a large sum that people who believe Bolling v Sharpe was wrongly decided (or at least wrongly reasoned) are much more likely to believe Callais was correctly decided!
(2) As to the main thrust of your argument, the answer I understand to be the most accepted is: should the law allow for restitution and how? Most people say yes to the first part, but every answer to the second part becomes contested. If you are robbed of money and the person caught, should you get your money back? If someone physically maims one of your family members should they go to prison? And if a particular social group of people are subjected to 250 years of chattel slavery, then reconstruction and Jim Crow, is there anything we can do to help that social group?
This might be catnip to my own priors and bias, but I'm not a big believer in slippery slopes and I think it's really easy to differentiate between black people in the US south and all those other groups you mention. However, I would also be in favor of other social and ethnic groups getting restitution when they are wronged, especially by a government, for membership in their group.
Also I think he always goes by "Will" and writes his name as "William".
"One possible baseline would be proportional representation — members of a protected class should presumptively elect candidates in proportion to their population in the state. This may be somewhat intuitive,..."
From a statistical or logical perspective, this isn't intuitive. For example, if a state were 55% non protected and 45% protected, based on a normal distribution, you'd expect no elected candidates from the protected class. In the past, districts didn't fall into normal distributions. Post Calias, they may well be closer to normal. I wonder if proportional representation was rejected in part based on the math challenges it would cause.
The next battle in the gerrymandering wars may be for states to eliminate the requirement that Congressional districts be contiguous. Fasten your seat belts for that one.
It seems to me that your article missed THE key part of the VRA: "nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." When the talk is about race/color, which it is in Section 2, and the text quoted is being honored, it seems to me that it is perfectly reasonable to ask "what are the stated grievances and goals of the plaintiff(s)?" From everything I've read and heard from "news" sources, the plaintiffs have all been arguing color/race representation is the thing that is potentially falling. It sure looks like everyone - both parties - turns a blind eye to the Constitution (currently race-neutral, as it should be) as well as statutory law because they don't like the results when equality of opportunity is there (individuals vote, not groups, and we have one person, one vote equal opportunity) but it is outcomes that are the issue.
Thanks for writing more explanation on your view. The weird hanging threads in the opinion were covered reasonably well in the pod, but this is helpful.
Is it your view that the part of the text reading "That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population...” means that no notice can be taken of disproportion? Why would that be right vs a narrow reading - after all, "equal" is actually a very strong condition.
“It could be that the combination of Callais and supercharged partisan gerrymandering is legally correct.”
How is this the case? What is “legally correct” is not some innate physical attribute of the universe that can be divined via an exceptionally powerful legal microscope; it is determined by the Court, which itself is largely driven by normative considerations. One of those considerations is the need to apply a somewhat consistent form of legal reasoning—but as evinced by Vieth, a coherent constitutional argument against partisan redistricting was always available.
To suggest that it is “legally correct” for the Court to embrace political practices that lead to the further decay and corruption of our already struggling experiment in democratic governance just seems beyond naive.
After the enactment of the 15th Amendment, I’m guessing about 99% of black men voted for the Republican Party (because the other party was overtly racist and wanted to subjugate black people). Under the logic of Bolden, Alexander, and Callais, Southern Democrats would have been free to gerrymander those black voters out of the political process simply by claiming they were doing so for partisan (not racist) reasons.
That is so obviously incorrect that writing 3,000 words to try to tease this out seems like a waste of time.
When Louisiana, Tennessee, and Alabama read a judicial opinion and all immediately rush to carve up black neighborhoods and eliminate black representation in the South—I think it’s safe to say that was a bad judicial opinion.
Let’s not overthink this one. This shit is fucking gross and racist.
I actually think this piece is a good companion to the pod and is helpful to more fully understand your views.
I'm still greatly worried about the lack of a historical analysis and/or some statutory originalism. If nothing else it seems that the VRA was written in response to reconstruction and Jim Crow that culminated in civil unrest in the '60s. It seems (nearly) everyone at the time understood part of the purpose of the VRA was to bring southern black Americans (back) into the political process. It was disheartening, to say the least, to see Alito misuse and arguably lie with the voting statistics he quoted and then *within days* see the southern states, that the VRA was meant to constrain, jump in to carve up black neighborhoods in redistricting. There are people who were alive in the Jim Crow south who are now having their districts carved up based on race again.
Although the opinions do not say this explicitly, it is hard for me to envision a process where drawing a map explicitly considering race is permitted under this decision. If this is the case, why is race the only prohibited consideration?
By the same logic, shouldn’t consideration of gender violate the 19th Amendment? Shouldn’t consideration of past political viewpoints or membership in a group violate the 1st Amendment?
Although subtle, I think one of the strangest elements of the Callais decision is that it reinforces that certain gerrymanders are justiciable, as the Court struck down a current map on constitutional grounds. Therefore, clearly the Court believes that it has a role in determining whether districting has violated constitutional principles. Indeed, Thomas explicitly grounds his opinion in the 14th Amendment, not the 15th, meaning that equal protection extends to protecting the right to not be unfairly gerrymandered against.
To then limit the Court’s constitutional considerations to race alone is … suspect. To truly be consistent, the Court’s decision should bar consideration of any factor for which the government could not prohibit a person from voting. Clearly this would prevent consideration of race, sex, religion, and political speech (likely including party affiliation).
Personally, I think this would be a great approach, with maps being drawn solely using total population, political subdivisions (for simplicity of down ballot elections) and geographic impediments to travel. For fairness, we could even generate 7 maps and have each party eliminate 3, leaving the least objectionable option to both parties. Unfortunately, this Court seems uninterested in protecting the rights of voters … other than, of course, the poor disenfranchised white voters of Louisiana.
Would you have voted with the majority or the dissent?
I think even uglier is the validation of the rush to re- districting, contrary to the rationale of Purcell and properly leading to confusion that the the GOP majority intended to “save” the House for the GOP. Better would have been to do the Loper Bright approach of making the ruling effective after the 2026 election. It would have made the decision less bad and less damaging to the Court’s legitimacy.
Agree on the Ugly. As for the textualist interpretation, I can see how somebody could interpret the text as Alito did, if reading the text in a total vacuum without regarding for history or context. At any rate, I do not see how the textualist reading can be squared with precedent, and precedent is supposed to be super strong when interpreting statutes. This new idea of "updating" is doing a ton of work to avoid stare decisis and precedential concerns. My article on the subject here:
https://www.activevoice.us/p/your-democracy-has-been-updated
I am a subscriber to/follower of Joyce Vance's "CIVIL DISCOURSE" and Steve Vladeck's "DIVIDED ARGUMENT". Here is a comment I recently posted in response to Joyce's article condemning the Supreme Court's decision in the Callais case on the grounds that it had improperly eviscerated the Voting Rights Act. I am simply repeating my comment, this time in response to Bill Baude's similar condemnation published by Steve in yesterday's (May 19) edition of DIVIDED ARGUMENT:
-------------------------------------------------------------------------------------------------------
"The basic problem that plagues the litigation over the proper construction of and the constitutionality of the federal voting rights legislation which was passed in the wake of the events in the early 1960's in Selma, Alabama, and elsewhere in the South is the assumption that voting is a GROUP right, as opposed to an INDIVIDUAL right.
Take the core proposition which is at the heart of the opposition to the Supreme Court's recent ruling in the Callais case: that Blacks in Louisiana (members of a minority racial group - at least nationally) have a right to be aggregated in a voting district where they are locally in the majority vis-a-vis other racial groups (presumptively composed of Whites) so that they may elect "one of their own" to represent them in Congress.
To begin with, even if we accept the notion that voting is group right, Black Americans cannot be favored over other racial or ethnic groups. Although Blacks certainly do have special historical and emotional claims to participate in America's political processes, such claims cannot be permitted to upend our national commitment in the Constitution to the rights of everyone where it is provided that "no state [or the federal government] shall deprive ANY PERSON of life, liberty, or property, without due process of law; nor deny to ANY PERSON within its jurisdiction the equal protection of the law." [Edited for clarity].
Besides the fact that this proposition runs counter to the of principles memorialized in the Declaration of Independence and other founding documents to the effect that All Men Are Created Equal, it demeans Blacks by assuming that they do not and can not make up their own minds about who they wish to represent them and that they necessarily want to vote for a member of their own race (and that they need Government help to be able to do it).
Finally, is this not the classic slippery slope? Are there not many other racial and ethnic groups who are similarly situated to the Black communities of Louisiana? Consider Hasidic Jewish communities in New York City. Or Mormons in Utah. Or Scandinavian descendants in Minnesota. Etc., etc. "
--------------------------------------------------------------------------------------------------------
I have yet to see any serious response to my commentary on Joyce's piece. (The only exception is the comment to Bill Baude's piece by Paul R. , which comes close to getting at the issue.
I'm really confused by several parts of this post.
(1) you put something in quotations but then say it is "Edited for clarity". Are you referencing part of section 1 of the 14th amendment? "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."?
I'm confused by several aspects of this, but maybe most importantly the "[or the federal government]" edit. The 14th amendment is famously *not* explicit about applying to federal government. As far as I understand, Bolling v. Sharpe, "reverse incorporates" the 14th amendment to apply to the federal government via appeal to the 5th amendment. Personally I think this is a reasonable interpretation, but Bolling v. Sharpe is certainly a much examined decision. Maybe an interesting corollary is that I would bet a large sum that people who believe Bolling v Sharpe was wrongly decided (or at least wrongly reasoned) are much more likely to believe Callais was correctly decided!
(2) As to the main thrust of your argument, the answer I understand to be the most accepted is: should the law allow for restitution and how? Most people say yes to the first part, but every answer to the second part becomes contested. If you are robbed of money and the person caught, should you get your money back? If someone physically maims one of your family members should they go to prison? And if a particular social group of people are subjected to 250 years of chattel slavery, then reconstruction and Jim Crow, is there anything we can do to help that social group?
This might be catnip to my own priors and bias, but I'm not a big believer in slippery slopes and I think it's really easy to differentiate between black people in the US south and all those other groups you mention. However, I would also be in favor of other social and ethnic groups getting restitution when they are wronged, especially by a government, for membership in their group.
Also I think he always goes by "Will" and writes his name as "William".
"One possible baseline would be proportional representation — members of a protected class should presumptively elect candidates in proportion to their population in the state. This may be somewhat intuitive,..."
From a statistical or logical perspective, this isn't intuitive. For example, if a state were 55% non protected and 45% protected, based on a normal distribution, you'd expect no elected candidates from the protected class. In the past, districts didn't fall into normal distributions. Post Calias, they may well be closer to normal. I wonder if proportional representation was rejected in part based on the math challenges it would cause.
The next battle in the gerrymandering wars may be for states to eliminate the requirement that Congressional districts be contiguous. Fasten your seat belts for that one.
It seems to me that your article missed THE key part of the VRA: "nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." When the talk is about race/color, which it is in Section 2, and the text quoted is being honored, it seems to me that it is perfectly reasonable to ask "what are the stated grievances and goals of the plaintiff(s)?" From everything I've read and heard from "news" sources, the plaintiffs have all been arguing color/race representation is the thing that is potentially falling. It sure looks like everyone - both parties - turns a blind eye to the Constitution (currently race-neutral, as it should be) as well as statutory law because they don't like the results when equality of opportunity is there (individuals vote, not groups, and we have one person, one vote equal opportunity) but it is outcomes that are the issue.
Thanks for writing more explanation on your view. The weird hanging threads in the opinion were covered reasonably well in the pod, but this is helpful.
Is it your view that the part of the text reading "That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population...” means that no notice can be taken of disproportion? Why would that be right vs a narrow reading - after all, "equal" is actually a very strong condition.