I feel like Dan is usually extremely reserved so hearing him say "odious" a few times stood out to me, but I would have liked to hear more push back.
I was especially unconvinced about Will's defense of partisanship vs race and of whom this will benefit in the long run. Will kept saying that black people have just as much opportunity to elect republicans still, but I don't think that can be true since their compact living districts have been split up! Similarly republicans have had 60+ years to enact policy and convince black people to vote for them and they seemingly haven't been interested (whereas they have made overtures and inroads at times with other minority groups). Combining this decision with Rucho (which I think is the most undemocratic and anti-rule of law decision of my life time) I think just means a clear road map for legal racial gerrymandering. I also think Rucho is doubly bad because since the US supreme court has wiped their hands of partisan gerrymandering it is leaving states like Florida to blatantly ignore their own state constitution to implement republican gerrymanders without any recourse other than an extremely long and difficult process of impeachment and elections.
I've read things like Pildes' take on Callais, but all of that seems like pie-in-the-sky "what ifs". E.g. Pildes' says that this might backfire if dems take control in '28 and pass voting rights legislation. This just skims over the fact that right now that would require dems to win at least 60 seats in the extremely undemocratic senate (most forcasters put this likelihood around 0%). Pildes also mentions democrats could spread black voters out in states they control to counteract southern states changes, but this is exactly the type of voter dilution the voting rights act was supposed to stop!
I was curious to look into judge Easterbrook's proposals, but was rather unsurprised to find that scholars find that such an approach would lead to fewer minority representatives and decidedly have a net republican benefit (e.g. https://yalelawjournal.org/article/the-race-blind-future-of-voting-rights)
Finally I'll say that many of the arguments that "we don't know the long term partisan effect" seem like they would fit just as well defending the seemingly race neutral Jim Crow laws -- poll taxes, literacy tests, residency requirements, grandfather clauses, etc. That sits extremely unease with me. I'm not sure when this episode was recorded, but since the decision came down Louisiana and Tennessee have already rushed to implement new GOP gerrymanders, and GOP appointees on the VA supreme court have struck down the DEM gerrymander there. It seems like there is already plenty of on the ground evidence that this decision is benefiting republicans and just speculation (almost entirely from defenders of Callais) that this could have a different partisan valence in the long run.
I haven't dug into much of the other legal analyses of the Callais decision, but I have been reading about the statistical analyses of partisanship vs race (e.g. https://www.gelliottmorris.com/p/2026-05-08-simple-math-error-scotus-callais-vra) and it's reinforcing my belief that this decision was largely driven by a court that wanted to get rid of section 2 and just found Rucho as a convenient shield to do so.
Would have loved to hear you all talk about justice Roberts long history with the voting rights act and why that might have been part of his calculus not to be the author of this decision (since he is often the author of these big cases).
1. Other than a very brief comment at the end, your analysis did not mention Purcell relative to this case. On the AO podcast yesterday, Sarah or David mentioned that their view was Purcell didn’t apply to SCOTUS decisions. Why wouldn’t Purcell have prevented map changes post the Calais decision for the 2026 elections?
2. Could you elaborate on the “similarly situated” concept and how that term is defined and how it is applied? David talked about it on AO yesterday too. I came away from his discussion thinking it would be okay for a state to say no people in x city can vote, since all those people are similarly situated. Hard to believe that can be right.
Thank you for stating what was alarming inside my head constantly after about fifteen minutes of this episode. GROUPS don't vote, individuals vote. There are no voting booths for GROUPS. This entire episode was the biggest fail that I have heard on Divided Argument...maybe the only episode to which I would assign a failing grade.
Regardless of the text of the Voting Rights Act, I would have liked for Will and Dan to examine what is Constitutional and there is nothing, zero, in the Constitution about the rights of groups when it comes to elections and voting. It is the height of "ism" whether racism or sexism or heightism or eye-colorism to assume that an INDIVIDUAL will vote a certain way or has a certain political belief because of some immutable trait such as race, sex, height, eye color, hair color, etc.
I give them some credit for observing that there are many, many "groups" that might, in some sense, wish for particular political outcomes - farmers, teachers, Socialists, 2nd Amendment supporters, Southern Baptists, name-your-supposed-coalition-group - and the fact that Will and Dan missed is that ALL GROUPS should be equally dismissed or disadvantaged or whatever you want to call it in the districting process, but my point is that even if the outcome of the redistricting happens to favor some groups that it is permissible by the Constitution and not because the Constitution says anything about groups but because the rights conferred to citizens are conferred on individuals. Even the right to assemble is not conferred to the/a group, it is an individual right of association.
Even where the 15th Amendment specifically forbids the denial of the vote based on "race, color, or previous condition of servitude" the characteristics of race, color, or previous condition of servitude are individual traits, not group traits. When race is a social construct and DNA (not to mention human intuition and common sense) can't identify how people are identical unless they are twins, triplets, etc., and color is of course no different (my two sons both have some or all Asian ethnicity but are wildly different colors and one of them is often mistaken for white) and it is simply erroneous to say that a group of people have a color - we use this kind of language as shorthand but it has no legal meaning. This whole issue and debate strikes me as wishing and magical thinking and don't-like-the-consequences-of-the-Constitutional-principles. As a society we have to get past this or it is going to be a never-ending source of acrimony and divisiveness. Hasn't anyone crafted an AI that can devise some kind of difficult-to-game model for assigning citizens to voting areas?
Will, can you explain the B grade a bit more thoroughly?
I usually have to listen to these more than once to feel confident but, after only one listen, I believe I heard Will both agree with the statutory interpretation of the majority and describe aspects of it as dishonest. Would love to hear more a detailed explanation of where Prof Baude would use the red pen in this.
Dan's argument is contradictory to me. According to him:
1. Political gerrymandering is bad.
2. Racial gerrymandering is necessary and good because it helps minorities.
3. But race and political preferences are inextricably intertwined.
But if race and political preferences are so intertwined, political gerrymandering is necessarily racial gerrymandering. Indeed, political gerrymandering becomes unavoidable if race-based gerrymandering is required. And if racial gerrymandering is necessary and good, then what is wrong with political gerrymandering if race and politics are so linked?
I don't like to ascribe bad-faith to people. But it seems Dan's problem with political gerrymandering is that it sometimes works to the benefit of Republicans, and is therefore bad. But racial gerrymandering that "benefits" minorities (I disagree that it actually benefits them) is good because it usually benefits Democrats. In other words, because race and politics are so intertwined, political gerrymandering is good if it benefits Democrats, but we can't say out loud that it's good because then that gives Republicans license to engage in political gerrymandering.
Seems to me that Dan's position is...what's the word y'all kept using to describe the Court's opinion? Oh, yeah...dishonest.
If looking to avoid ascribing bad faith to people, you might reflect on whether people, in good faith, can view the consideration of race as permissible when attempting to address prior racist practice.
From there, you could further believe, in good faith, that instances of partisan-only gerrymandering are not ok, because they lack the justification of a response to historical and current bad practice of racial disenfranchisement, but instances of any racial gerrymandering, even where strongly correlated with partisanship, are permitted.
A few problems there. First, you're focusing on motivations, not results. If race and political preferences are really that correlated, you still end up with a political gerrymander--which, again, is supposedly bad.
Second, I might believe the good-motives explanation if those same people didn't have a meltdown over Texas's gerrymander, which actually produced more single-race minority-majority districts (while reducing the number of "coalition" districts, which were considered a violation of both the 14th Amendment and VRA). So, while there were more Republican districts, critics got the racial districts they supposedly wanted. But they didn't really want more racial districts. They wanted more Democratic districts, because what they--like Republicans--really care about is political gain, not "racial gain."
I feel like Dan is usually extremely reserved so hearing him say "odious" a few times stood out to me, but I would have liked to hear more push back.
I was especially unconvinced about Will's defense of partisanship vs race and of whom this will benefit in the long run. Will kept saying that black people have just as much opportunity to elect republicans still, but I don't think that can be true since their compact living districts have been split up! Similarly republicans have had 60+ years to enact policy and convince black people to vote for them and they seemingly haven't been interested (whereas they have made overtures and inroads at times with other minority groups). Combining this decision with Rucho (which I think is the most undemocratic and anti-rule of law decision of my life time) I think just means a clear road map for legal racial gerrymandering. I also think Rucho is doubly bad because since the US supreme court has wiped their hands of partisan gerrymandering it is leaving states like Florida to blatantly ignore their own state constitution to implement republican gerrymanders without any recourse other than an extremely long and difficult process of impeachment and elections.
I've read things like Pildes' take on Callais, but all of that seems like pie-in-the-sky "what ifs". E.g. Pildes' says that this might backfire if dems take control in '28 and pass voting rights legislation. This just skims over the fact that right now that would require dems to win at least 60 seats in the extremely undemocratic senate (most forcasters put this likelihood around 0%). Pildes also mentions democrats could spread black voters out in states they control to counteract southern states changes, but this is exactly the type of voter dilution the voting rights act was supposed to stop!
I was curious to look into judge Easterbrook's proposals, but was rather unsurprised to find that scholars find that such an approach would lead to fewer minority representatives and decidedly have a net republican benefit (e.g. https://yalelawjournal.org/article/the-race-blind-future-of-voting-rights)
Finally I'll say that many of the arguments that "we don't know the long term partisan effect" seem like they would fit just as well defending the seemingly race neutral Jim Crow laws -- poll taxes, literacy tests, residency requirements, grandfather clauses, etc. That sits extremely unease with me. I'm not sure when this episode was recorded, but since the decision came down Louisiana and Tennessee have already rushed to implement new GOP gerrymanders, and GOP appointees on the VA supreme court have struck down the DEM gerrymander there. It seems like there is already plenty of on the ground evidence that this decision is benefiting republicans and just speculation (almost entirely from defenders of Callais) that this could have a different partisan valence in the long run.
I haven't dug into much of the other legal analyses of the Callais decision, but I have been reading about the statistical analyses of partisanship vs race (e.g. https://www.gelliottmorris.com/p/2026-05-08-simple-math-error-scotus-callais-vra) and it's reinforcing my belief that this decision was largely driven by a court that wanted to get rid of section 2 and just found Rucho as a convenient shield to do so.
Would have loved to hear you all talk about justice Roberts long history with the voting rights act and why that might have been part of his calculus not to be the author of this decision (since he is often the author of these big cases).
Is there a petition anywhere to replace Dan with a left-leaning law professor who knows what they are talking about?
Two questions:
1. Other than a very brief comment at the end, your analysis did not mention Purcell relative to this case. On the AO podcast yesterday, Sarah or David mentioned that their view was Purcell didn’t apply to SCOTUS decisions. Why wouldn’t Purcell have prevented map changes post the Calais decision for the 2026 elections?
2. Could you elaborate on the “similarly situated” concept and how that term is defined and how it is applied? David talked about it on AO yesterday too. I came away from his discussion thinking it would be okay for a state to say no people in x city can vote, since all those people are similarly situated. Hard to believe that can be right.
When are we going to deal - as the Founders did- with the
rights of Americans (whether voters, citizens, or otherwise) as INDIVIDUAL rights, as opposed to group (however defined) rights?
Thank you for stating what was alarming inside my head constantly after about fifteen minutes of this episode. GROUPS don't vote, individuals vote. There are no voting booths for GROUPS. This entire episode was the biggest fail that I have heard on Divided Argument...maybe the only episode to which I would assign a failing grade.
Regardless of the text of the Voting Rights Act, I would have liked for Will and Dan to examine what is Constitutional and there is nothing, zero, in the Constitution about the rights of groups when it comes to elections and voting. It is the height of "ism" whether racism or sexism or heightism or eye-colorism to assume that an INDIVIDUAL will vote a certain way or has a certain political belief because of some immutable trait such as race, sex, height, eye color, hair color, etc.
I give them some credit for observing that there are many, many "groups" that might, in some sense, wish for particular political outcomes - farmers, teachers, Socialists, 2nd Amendment supporters, Southern Baptists, name-your-supposed-coalition-group - and the fact that Will and Dan missed is that ALL GROUPS should be equally dismissed or disadvantaged or whatever you want to call it in the districting process, but my point is that even if the outcome of the redistricting happens to favor some groups that it is permissible by the Constitution and not because the Constitution says anything about groups but because the rights conferred to citizens are conferred on individuals. Even the right to assemble is not conferred to the/a group, it is an individual right of association.
Even where the 15th Amendment specifically forbids the denial of the vote based on "race, color, or previous condition of servitude" the characteristics of race, color, or previous condition of servitude are individual traits, not group traits. When race is a social construct and DNA (not to mention human intuition and common sense) can't identify how people are identical unless they are twins, triplets, etc., and color is of course no different (my two sons both have some or all Asian ethnicity but are wildly different colors and one of them is often mistaken for white) and it is simply erroneous to say that a group of people have a color - we use this kind of language as shorthand but it has no legal meaning. This whole issue and debate strikes me as wishing and magical thinking and don't-like-the-consequences-of-the-Constitutional-principles. As a society we have to get past this or it is going to be a never-ending source of acrimony and divisiveness. Hasn't anyone crafted an AI that can devise some kind of difficult-to-game model for assigning citizens to voting areas?
Will, can you explain the B grade a bit more thoroughly?
I usually have to listen to these more than once to feel confident but, after only one listen, I believe I heard Will both agree with the statutory interpretation of the majority and describe aspects of it as dishonest. Would love to hear more a detailed explanation of where Prof Baude would use the red pen in this.
Dan's argument is contradictory to me. According to him:
1. Political gerrymandering is bad.
2. Racial gerrymandering is necessary and good because it helps minorities.
3. But race and political preferences are inextricably intertwined.
But if race and political preferences are so intertwined, political gerrymandering is necessarily racial gerrymandering. Indeed, political gerrymandering becomes unavoidable if race-based gerrymandering is required. And if racial gerrymandering is necessary and good, then what is wrong with political gerrymandering if race and politics are so linked?
I don't like to ascribe bad-faith to people. But it seems Dan's problem with political gerrymandering is that it sometimes works to the benefit of Republicans, and is therefore bad. But racial gerrymandering that "benefits" minorities (I disagree that it actually benefits them) is good because it usually benefits Democrats. In other words, because race and politics are so intertwined, political gerrymandering is good if it benefits Democrats, but we can't say out loud that it's good because then that gives Republicans license to engage in political gerrymandering.
Seems to me that Dan's position is...what's the word y'all kept using to describe the Court's opinion? Oh, yeah...dishonest.
If looking to avoid ascribing bad faith to people, you might reflect on whether people, in good faith, can view the consideration of race as permissible when attempting to address prior racist practice.
From there, you could further believe, in good faith, that instances of partisan-only gerrymandering are not ok, because they lack the justification of a response to historical and current bad practice of racial disenfranchisement, but instances of any racial gerrymandering, even where strongly correlated with partisanship, are permitted.
A few problems there. First, you're focusing on motivations, not results. If race and political preferences are really that correlated, you still end up with a political gerrymander--which, again, is supposedly bad.
Second, I might believe the good-motives explanation if those same people didn't have a meltdown over Texas's gerrymander, which actually produced more single-race minority-majority districts (while reducing the number of "coalition" districts, which were considered a violation of both the 14th Amendment and VRA). So, while there were more Republican districts, critics got the racial districts they supposedly wanted. But they didn't really want more racial districts. They wanted more Democratic districts, because what they--like Republicans--really care about is political gain, not "racial gain."