In this powerful episode of Hot Topic, Bold Talk, host Jackalyn Rainosek, PhD, is joined by veteran trial and appellate lawyer Richard (Rich) Wilson to shine a light on one of the most pressing threats to American democracy today: gerrymandering.
Together, Jackalyn and Rich explain what redistricting is meant to be, then break down the manipulative tactics of “cracking” and “packing” that political leaders are using to silence minority voices and entrench partisan power. With Texas as a prime example, they expose how Hispanic and African American communities are being deliberately divided across districts, so they lose the ability to elect representatives of their choice.
Drawing from the Civil Rights Act of 1965, Rich explains how the law was intended to protect fair representation, and why Supreme Court cases such as Shelby County v. Holder, Rucho v. Common Cause, and Allen v. Milligan have dramatically reshaped the rules, often to the detriment of equal voting rights.
The discussion also highlights how states are responding: while Texas redraws maps to favor Republicans, California has announced countermeasures to ensure Democrats maintain equal representation. As the 2026 elections approach, the stakes couldn’t be higher, especially with Trump’s agenda looming and states testing legal strategies to justify discriminatory maps.
With Rich’s deep legal insight and Jackalyn’s research-driven perspective, this episode provides Americans with both a clear understanding of gerrymandering and a call to vigilance in defending democracy.
Episode Summary Points:
- Unpacking Gerrymandering: Clear definitions of redistricting and the manipulative tactics of cracking and packing that undermine fair representation.
- Texas as the Case Study: How Texas Republicans have redrawn district maps to dilute Hispanic and African American voting power.
- Civil Rights Act of 1965: Why this landmark law was meant to safeguard fair maps and protect minority representation.
- Shelby County v. Holder: The pivotal Supreme Court decision that weakened federal oversight and opened the door to renewed discrimination in voting maps.
- Rucho v. Common Cause & Allen v. Milligan: Recent cases that reveal how partisan and racial gerrymandering continue to shape American democracy.
- National Ripple Effect: Texas’s actions spark California and other states to consider countermoves, escalating the partisan battle for House seats.
- 2026 Elections Looming: What unfair maps mean for the balance of power in Congress and the advancement of Trump’s Republican agenda.
- Legal Insight from Rich Wilson: A veteran appellate lawyer explains how the courts, past and present, define the fight over voting rights.
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Listen to the podcast here
Lines Of Power: Redistricting, Civil Rights, And The Courts
Introduction
I am so excited to be back because I had to take a vacation for a while to get myself ready to sell my house and do a number of things. You’ll notice that Yoda has disappeared off my wall because we packed all of our pictures and things. I’m very excited to be back with you and I’ve missed you. Podcasting and sharing things with you are very important to me.
The neat thing is I decided to change some of the things I’m doing with podcasting and one of them is I’ve invited a good friend of mine who is a brilliant lawyer. He’s a veteran trial and appellate lawyer. I talked to him and I said, “I’m concerned that people do not understand what’s going on in the courts.” The courts are the thing that are maintaining our democracy and a number of things. Let me introduce Richard to you. I’m going to give you a lot more information each time because we’re going to be doing this once a month to hope we can share with you lots of things about the courts and what we think is important for you to know.
Richard is a veteran trial lawyer and a pellet lawyer. He graduated from the University of Texas in 1995 and he’s been practicing as a lawyer for 30 years. It’s interesting that he represents lawyers and judges. It’s often called by some people the law of lawyering because he helps those that are part of the law. He represents them. Let me be assured that he is outstanding in what he’s going to talk about to us because he does bereaves and arguments and appellate levels at state and federal courts of appeal.
He’s tried many cases in both the state and federal courts and he has tremendous accomplishments, which I’ll be delighted to share with you. In the future, I’ll be just introducing him and talking with him a little bit as we begin our episode. At the end of the episode from now on, I’ll be giving you more information about him.
One of the things that is meaningful is he says his biggest accomplishment is raising two children with his wife, Kimberly. I had the privilege of knowing Kimberly and I am delighted to have you, Richard. I just want to thank you. What I’d like for you to do is tell the reason you’ve agreed to do this with me and maybe what our purpose is that we talked about doing this episode.
Thank you for having me on and I appreciate you using the term children and not kids given. Both of them live over 1,000 miles away. I don’t know whether or not that means we did a good job or a bad job, but they’ve shown the independence to move much further away. Getting back to your question, you and I had a discussion several years ago. Having come from your experience and your prior work where you were dealing with lawyers a lot and in the course of discussing what I would say to be conversations that come up in everyday discussions, more of the cocktail party talk.
I would raise from a 30,000-foot level some legal issues and how those I thought would impact things. It might be beneficial for me with the topics you discuss on occasion where the law can insert itself or influence what happens to try and talk about what the law does and how the law affects certain issues in small enough bites that the elephant is digestible.
Redistricting Vs. Gerrymandering Explained
Thank you and I think that’s what we’re going to be doing. I’ll admit. I read all those cases you sent to me and I went into the details and finally I realized you’d highlighted some good points for me. I’m thankful for that, too. We need to give people real knowledge about what is happening in the courts and particularly the Supreme Court, which we’re going to talk a lot about. The topic we’ve got, though, is one that is extremely important.
We’re seeing a lot of gerrymandering. What I want to do, Richard, is I first want to define what redistricting is because it’s the opposite of gerrymandering. I want to define it from some of my past episodes because I didn’t watch it several times, but I’m going to update all these episodes and give new information.
To me, redistricting is the congressional mandate process of redrawing electoral district boundaries, but they are two that reflect the population changes after each census. That’s what redistricting is. Gerrymandering is something different and I’ll define it in a moment. Tell me the importance, Richard, of doing this redistricting when the census changes.
If we wanted to go back 250 years, originally there were only 13 colonies or 13 states. At the time, the constitution was drawn up which was after 1776 when prior efforts at governing the country worked quite well as they thought. You had the House of Representatives in Congress, which was made up by dividing the number of representatives based on population the way the legislative branch of the government works. You have three branches, the executive, which is the president, the judiciary, and the legislative branch, which is both the House of Representatives and the Senate.
[bctt tweet=”Redistricting is the congressional process of redrawing electoral district boundaries to reflect population changes after each census.” via=”no”]
Each state, regardless of their population gets to a Senator. With regard to the House of Representatives, the current makeup is there are 435 members of the House of Representatives. The idea within the constitution was to allocate the representation within one of the two chambers of the legislative branch based on the country’s population. The whole idea with redistricting is every ten years when you have the census, you look at the population of the country.
Based on the last census, the population was about 340 million people. What they do is they then sit down and look at the population of each state and divide the members of the House of Representatives based upon the populations of each state. Essentially, the way it works is you have approximately 780,000 people that are all supposed to be represented in the House of Representatives by a single member of that branch.
Every ten years based on the census, some states will stay the same. Some states will gain congressional seats, which happens with Texas quite a lot. I remember in my lifetime when Texas had less congressional seats than the State of New York. That is not the case anymore, but that’s the whole idea behind the redistricting aspect. The federal government will decide how many members of the House of Representative each state gets.
Louisiana has seven. In Texas, I forget what the number is but 42 or something like that now. The State of Texas will decide, “How are we going to draw the maps up so that each of these 42 members of congress will represent approximately 780,000 people? Though that’s the idea of redistrict, I will then let you take over and explain how gerrymandering works into that process at the state level in particular.
Thank you and I appreciate the definition. I truly understood it even more clearly after your description. Gerrymandering to me is the manipulation of district boundaries for partisan or racial reasons with the intent of giving one political party an unfair advantage. Now, there are two types of gerrymandering, cracking, which is diluting the opposing parties or voters by spreading them out across many districts so they don’t have a majority in one district.
That is what is happening in Texas with this new map that they’re proposing because in this, they have divided all the African-Americans and the Latinos in our state and dispersed them so much that it is almost a white dominated map. That’s what cracking is. Another way of doing it is packing. Concentrating the opposing party voters in a few districts so their votes are wasted and they can’t influence the outcome in other districts.
Now, we have some good examples you and I’ve talked about with Alabama. We’re going to talk about that but also with Louisiana because that’s what was happening with their maps. One of the things that I want to assure everybody. We know that no matter what these maps are being drawn out now, they have to go through the court system to be finalized and approved, but we want to talk to you about what the concerns are. You’re welcome to start anywhere you want with our discussion of the various cases we have and just talk. I may interrupt you and ask questions because I want to clarify things that you’re talking about.
Before we get to the case law. The history buff in me would point out that the name gerrymandering comes from a district drawn by then Massachusetts’ Governor Elbridge Gerry in the 1820s. We’re talking about 200 years ago where one newspaper described a district that’s looking like a salamander. You take the last name of the then Massachusetts governor and then salamander. Thus, gerrymander is born. From a historical perspective, I would at least point that out.
The Impact Of Shelby County V. Holder & The “One Person, One Vote” Principle
Wasted effort and wasted time but in particular, from a historical perspective. I’m going to acknowledge being bald, maybe you can’t tell how old I am but some things do predate me. There’s a particular law that was part of what I would characterize in its totality as the civil rights act or the civil rights laws in the 1960s called the Voting Rights Act. Historically, in particular in certain states, primarily Southern states. There used to be means of restricting in particular people from voting based on rates.
I grew up hearing stories about voter testing where the registrar voters in a particular county or parish would pull up a jar of jelly beans from underneath the counter and ask how many jelly beans were in the jar to prohibit certain people from being able to register to vote. The whole idea of the Voting Rights Act, it largely models the 15th amendment of the constitution, which was post-civil war, which prohibited discrimination from people on the basis of race.
The Voting Rights Act likewise prevented discrimination on the basis of race and did so by preventing things like poll taxes, where certain people had to pay to vote or again, voter testing, where you had to prove your capacity or ability to vote. That is the source of the litigation or the court approval part of congressional districts. As part of the Voting Rights Act when it was initially passed, I won’t get into the specific statute, but they were referred to as sections four and five of the Voting Rights Act.
The ideal was under one section you had to get pre-clearance. All states had to get pre-clearance for their maps when they were redrawn. It isn’t just congressional maps. It also could include maps for things like in Louisiana, police jury or in Texas, your county commissioners. Pre-approval had to be gained for those districts when they were drawn from typically the attorney general’s office of the United States and the Department of Justice.
There was also a provision for you to go through the courts but that took a longer period of time. The typical method of pre-approval was you went through the attorney general’s office to get the approval for your maps before you could use them after redrawing them. The way four and five worked, was one of the sections required that you get pre-approval to use the maps. The other section said, “Only states that had a prior historical use in 1964 or earlier of things like the poll tax or these voter registration tests,” were required to get pre-approval.
As a result of that, there were only a handful of states or within some states, certain counties that had to go to the federal government or the attorney general’s office to obtain that pre-approval before their maps could be used. To use specific examples, the State of say Maine might not have required that pre-approval but a state like Texas or Alabama. Those were two states that were required to get pre-approval based upon a proven historical record of discriminating against voters on the basis of race.
Again, this is even before I was born but within the lifetimes of almost everyone who will be reading this, that pre-approval requirement existed. It existed up until about ten years ago. I think the specific year of the Shelby County, Alabama case versus Eric Holder, who was then the Attorney General of the United States is 2013. What happened in Shelby County v. Holder is in Alabama, they brought suit to say that the pre-approval process itself was unconstitutional.
Essentially, Alabama or Shelby County was saying, “We have to get pre-approval. Other states or the majority of states do not have to do this. You’re ultimately treating our state differently in violation of the constitution on the basis of something that happened 50 to 60 years ago.” In Shelby County, the Supreme Court or a majority of the Supreme Court decided or held that the pre-approval process of the Voting Rights Act is unconstitutional.
We’ll touch on later how in particular that can play into gerrymandering as it’s going on now. Essentially, what that did is states were free to draw their own maps going forward regardless of their past history and it was a 5 to 4 opinion. The debate between the majority and the minority at the Supreme Court was over the justification of whether after 60 years we still needed to be going through, we, as a country or, we, as particular states. It still needed to be going through this pre-approval process.
In large part, what Alabama was attempting to show is, we have come a long way since 1964. You no longer have these requirements like the voting test or the poll tax to discriminate against people from voting in our state. To counter that is, on a legal level, when the legislative branch, when congress passes, okays a bill and passes it. It’s signed by the president and becomes a law. There’s a minimal requirement that you have to meet to show that the law passes constitutional muster.
It’s like, is it rational? Is there a rational basis for this? The minority argument in Shelby County v. Holder is, “These states have shown to pass history of doing this. The reason things are working the way they’re supposed to is because of the pre-approval process. We shouldn’t do away with it because if we do, that’s going to allow bad things to start to happen again.”
Let me pause here for a moment and say some things. During the time that the Civil Rights Act was passed, it was my fifth year at the University of Texas. What I saw was that we had racial discrimination in lots of Southern states and there were some even in the Midwest. If we didn’t have that, there were a lot of things that would happen that are now happening.
What I’m saying is, I am a supporter of some states that have a historical basis for dividing their districts in such a way that African-Americans or Hispanics or Asian-Americans or whatever are limited in their speaking out, what they would like to have as representation in our congress and in their state. What I know is, we are getting evidence that prevents the things that are going on now because we’re having a rise of constantly things appearing because there’s a dictate that I want you to change these states or whatever else.
I think Shelby took away something that was very valuable. It’s sad that we’re in a country where we have to have something like that to manage discrimination. The thing is, we also have to respect that we have one person, one vote. I would like for you to talk for a few minutes about the importance of the one person, one vote and the reason it is so important for everyone to have that opportunity to express themselves and have fair representation. I’m going to shift it a little bit and then we’ll come back to the legal cases.
In finishing with Shelby County v. Alabama. One of the comments you made earlier was that you have to get courts to approve these districts once they’re drawn to redistricting. Essentially, what Shelby County v. Alabama held was, that is no longer going to be a necessity with regard to the states that we required it for. Now, from a practical standpoint, you’re going to be hard-pressed to find states where once they do the redistricting. There aren’t private causes of action brought based upon how the lines are drawn such that it plays out in the courts. I’ll mention that.
Getting to your question on the one person, one vote. The legal requirement for that comes at the federal level. I’ll do this. I received this on my first day of law school many years ago. Believe it or not, I’ve had this in the drawer of every desk of every law office I’ve been in and have referred to it. Certain things in it have been highlighted. In particular, the one person, one vote finds its basis in the 14th Amendment. I’ll go ahead and use it because unlike some people, I don’t have this memorized. It reads, “No state shall deny to any person within its jurisdiction the equal protection of the laws. That’s the 14th Amendment.
The whole idea with equal protection is that’s where you get the one person, one vote basis. In particular on its simplest level, what this means is if I meet the qualifications to vote. If I’m over the age of eighteen and if I’m not currently a convicted criminal serving time in a state penal institution, I have that right to vote. You can’t make it such that my vote counts less than yours based upon something arbitrary like the amount of property I own or that I’m slightly younger than you. As a result, I haven’t seen as much and don’t bring that practical knowledge to the booth when I do vote.
That’s the whole concept of the one person, one vote on its most basic level. I say the most basic level because ultimately, when we dive into the cases, you will see that different judges have different opinions on what equal protection means from a legal standpoint. That’s where the one person, one vote or the protection of the one person, one vote comes from.
[bctt tweet=”Different judges have different opinions on what equal protection means legally. That’s where the principle of “one person, one vote” comes from.” via=”no”]
To segue back to the law, quite often, when you have cases brought, challenging, districts that have been drawn, they will be brought under both the 14th amendment, which is equal protection and the 15th amendment. Quite often and it’s almost exclusively this now, the challenges to districts that have been packed or cracked is that has been done on the basis of race, which the 15th amendment prohibits states from doing.
The reason I wanted to discuss this is people need to understand what is going on and understand how the amendments and the law is a way to protect people from being represented. If we use gerrymandering to change the process of districting, then we’re taking away the right of certain people to have an opportunity to be represented. I think of a case that we’re going to talk about in a moment but I think of the case where they had a problem in Louisiana because they have a large African-American population.
Several years ago, they ended up having a second district and a second representative because they got support to say, “You cannot restrict or change your state map so much that we don’t get the right to have our voice heard.” That’s what is so important here. Please go on, Richard, because you have several things that you can share about other cases as well.
Analysis Of Rucho V. Common Cause (Partisan Gerrymandering)
At this point, it would be good to get into because Holder dealt with the Voting Rights Act. We are now 20 or 25 minutes into this conversation. Legally, I’ll start touching on gerrymandering. As you pointed out at the beginning and as I would characterize, it’s these wildly wrong maps based upon race or as the case may be, political party. One of the recent cases that has come up quite a lot. I would say to the point where people watching the news on gerrymandering and these redistricting fights may have heard it is a case called Rucho v. Common Cause, which is out of North Carolina.
In Rucho, it concerned congressional maps in the states of both Maryland and North Carolina. What had happened is, going back to the 2010 census. In Maryland, they had eight congressional districts and the way things had been divided in Maryland for years is the district lines were drawn such that Maryland would have six democrats that were serving in the House of Representatives and two republicans.
What Maryland decided to do or what Maryland’s governor decided to do is he said, “Let’s redraw in particular what was then the 6th district. We’re going to redraw the 6th district to reduce the number of republicans in that district so that we can capture that district for a democrat and we will now have seven democrats that were sent to DC and one republican.”
To explain what that is, you refer to the term cracking earlier and that would be cracking a district on the basis of someone’s political party. On the other end, in North Carolina, they had gotten an additional congressional seat. They now had thirteen. What they did in North Carolina is they decided, “We’re going to draw the maps so that we can send ten republicans to serve in the House of Representatives and will only have to send three democrats.”
In North Carolina, what they were doing was packing urban districts by taking certain African-American segments from within the state and pulling them together. You had these spider-octopus like districts to reduce the number. A suit was filed in both North Carolina and in Maryland arguing with, “You can’t do this. You’re violating our equal protection rights.” If I’m a Republican and I am in an area of Charlotte that is made up of 70% or 80% democrats then my vote never has any effect on who’s being elected to congress for me.
My equal protection rights are being violated. While the maps were ordered redrawn by a three judge panel of a lower court and I’ll just point out here. One of the ways the Voting Rights Act also works is the cases are tried to a single federal judge. You’ll have a panel of three judges that are appointed. The case is tried to a three-judge panel and the benefit under the Voting Rights Act streamlines the process. After you trail the case, you can appeal it directly to the Supreme Court. You don’t have to stop over at an intermediate appellate or you don’t necessarily have to.
What the Supreme Court said in Rucho was, “We’re looking at this and the 15th amendment protects your right to vote on the basis of race and color. The 14th amendment gives you equal protection. The 15th amendment doesn’t apply to political parties.” Based upon its simple language. It’s not something you can use to challenge gerrymandering based solely on the political party of affiliation. The big issue there was the majority of the court. It was a 5/4 opinion written by Chief Justice John Roberts. It was to find that the equal protection clause in the 14th amendment doesn’t apply because at the very simplistic level, it was one person, one vote.
The court said, “We’re not going to arbitrarily decide based upon dilution due to cracking and packing whether the effect of your vote is less than that, that is an arbitrary process.” That was what the majority of the court said. The four-person minority focused on the fact that with computer modeling these days. The districts can be drawn such that even though I’m getting one vote, you can basically cancel out my vote through the way the districts are drawn. That does violate my equal protection rights because you’re segregating me such that my vote doesn’t count as much.
The distinction there would be, you didn’t have certain republican districts where you only had 400,000 people living in them and certain democratic districts where you had one million people living in them to go about this map. The districts from a population standpoint were drawn pretty equally. The court said, “We don’t see a violation there or the majority did.” From a gerrymandering standpoint, the effect of the Rucho case is to tell the states, “We don’t have to get pre-approval based on Shelby County v. Holder but we can now use computer modeling to draw maps based solely upon someone’s membership in a political party without using a factor of racing drawing these maps. That should pass constitutional muster.”
There was a lot of, I would say tension or debate between the majority and the minority about that. Justice Roberts questioned the strength of the evidence because he referred to it as being speculation about whether or not the districts drawn would work the way they’re intended. He used certain historical examples of past gerrymandering before we had computer modeling and before we had AI where the districts would be drawn for a particular purpose on party lines.
It would end up that the democratic governor drew the district to be a new democratic seat. In turn, what he did was by redrawing the maps, he created an additional republican’s seat. What Justice Kagan said in the minority and what she pointed out was, “With the computer modeling we’ve got these days, the historical examples you’re giving aren’t accurate anymore.” She also pointed out that these maps were drawn for the 2012 election. North Carolina had accomplished exactly what they had wanted in every subsequent congressional election.
They sent ten republicans to DC to serve in the house and three democrats and likewise in Maryland in every election since they had redrawn the map from 2012 onward. They had turned the 6th district into a district represented by a democratic member of the House of Representatives. They were sending seven democrats and one republican to serve in the House Representatives. Essentially, what she was pointing out is, “As much as you want to question the reliability of statistical modeling. What the evidence is showing us is that the stated purpose of doing the maps this way in both North Carolina and Maryland was pretty darn flawless.”
The thing that disturbs me about them is there’s no question in my mind whether it’s democratic or republican that people ought to be represented and they’re not being accurately represented. Whether it’s their political party or racial. There’s some undercurrents about racial issues in North Carolina. I don’t know if they are in Maryland.
I’m saddened by the fact that Roberts did not take a clearer stand to say, “Whether you divide a map based on political parties or you do it by race or by some way, that is discriminatory. That is not legal under our constitution.” That’s not what happened. Unfortunately, the states think they can get away with some things but on Rucho. Now, you go ahead and say some stuff, too, please.
This is a big issue of legal debate in politics. Arguably, you could predict the political party of people based on which side of this issue they come out on but again, there is a basis to the concept of, you’re still getting to vote once in this election. Everyone else is getting to vote once in this election so you are being treated equally. As I said, there certainly are very valid arguments on the other side as well, which is with computer modeling. Justice Kagan pointed this out in the dissent. I forget the number of maps that were considered through the computer modeling by the North Carolina Board or committee that we drew the congressional maps.
It was massive.
Basically, what she pointed out was there were 3,001 maps that were considered and these numbers are not accurate.
That’s correct, 3,001 maps.
Only one map did you have this 10/3 breakdown based on political party and that was the one map you chose based upon all of these factors you’re supposed to consider which they can include, in large part, geographic proximity. A big part of gerrymandering and redistricting is the districts have to be, the term they use is contiguous. In layman’s terms it means the first district can have a certain block in Houston, in Dallas, and in San Antonio that aren’t connected.
The idea of contiguous is, I can walk to every point in my district without having to cross another district conceivably. That’s what continuous is. One of the main factors they look at is the geographic proximity of everyone in the district to one another. The point that was being made by the Descent is, having to account for all of these factors that you’re supposed to consider and redistricting. The one map you chose was this one particular map where you’ve got ten republicans and three democrats. Supreme Court justices used much more steer words but essentially, I would characterize her opinion as, “Come on. Really?”
[bctt tweet=”Contiguous means you can walk to every point in your district without crossing into another. That’s what contiguous is.” via=”no”]
I think she’s fascinating. The reason that we chose this case, where we want to just show what Robert had done that opens up the door to Texas and Florida and whoever else decides to try to do something like this. It shows that Maryland was doing something that we considered to be possibly discriminatory as well as North Carolina.
Redistricting on party lines does not have any particular party affiliation. The best example of that is with what’s happening in Texas at the time you and I are doing this. Governor Abbott has probably signed the bill and it is now a law drawing the new congressional maps. California is in the process of doing the same thing. Basically, the concept there is because Texas has decided to create five more reliably republican house seats. California is going to create within its state five more reliably democratic house seats to cancel Texas out.
It’s almost like a game and it is sad because that’s not what we created as a part of our democracy. We created a democracy that was going to give a free opportunity for each person to express their opinions. Not based on their political party or whatever else but was able to have districts that were truly representative. One of the things I am excited about is that I just read something about Utah. They have been supported to have fair maps and they were quick to eliminate an action in Arizona that would have tried to do the same thing as Texas is doing.
I understand the reaction from California because they’re saying, “If you want to play this game, we’ll play it with you,” which I don’t think is helpful. There is another case, though, that I’d love for you to talk about because in Alabama, something else happens where Roberts does something. I don’t know if you term it different but he does something that’s not the same as what he did in Rucho, if I’m correct.
Discussion Of Allen V. Milligan (Racial Gerrymandering) & Future Cases
I know what you’re talking about. The one other thing that I would mention with regards to what’s going on now in August of 2025. This has nothing to do with the law because there’s not a legal requirement that the congressional districts only be redrawn once every ten years. I would characterize it as guardrails or fair play. It may be more of a topic for the historian or a political scientist on your program, which I have not. It troubles me with both California and Texas that we’re deciding to do this in 2025 halfway through the last census and after the states have already drawn their congressional districts once this decade.
I support that idea. I am very clear the reason we do it every ten years is because we’re looking at the census and it has changed. Thank you for that comment. Go ahead and talk about Allen, though.
Allen is yet another voting case concerning the State of Alabama. The deal with the names is under the Voting Rights Act individuals or what I would call representative groups like LULAC quite often in Texas can bring private lawsuits to enforce violations of the Voting Rights Act. Typically, the individual that sued is a member of the state government involved with the redistricting who is sued in their representative capacity. Which is why you’re not hearing Allen v. Alabama or Milligan v. Alabama.
The Allen case which you touched upon is another one of these redistricting cases. It is another gerrymandering case and this concerns and illustrates a difference with Rucho. In Allen, the challenge to the map or to the districts as they were drawn was based upon race. It was based upon the fact that African-American voting was being diluted.
Again, I don’t consider myself young but from a historical standpoint. One of the amazing things in Allen is that they point out that for the first 115 years following reconstruction, the State of Alabama never elected a Black representative Congress. In 1992, almost at the end of the 20th century, several plain of the state alleged that it had been incrementally diluting the vote of Black Alabama and violating the Voting Rights Act.
That lawsuit produced the first majority Black district in Alabama. We’re talking not just decades after reconstruction but over a century after reconstruction. From a race standpoint, and cut me off if I delved too much into the legal weeds. When you’re looking at whether or not redistricting or the maps as drawn passed constitutional muster under the Voting Rights Act and in that regard, under the 14th and 15th amendments. There’s something called the jingles test. The name is taken from a prior lawsuit that made its way to the supreme court.
They said there are three requirements. The first off is the minority group. Bringing the lawsuit has to be sufficiently large. To use it in simple terms because I’m a lawyer, not a mathematician. The idea is, if my state has two members in the House of Representatives and there are 100 people in my state and only one of those people was African-American or Hispanic. From a statistical standpoint, I’m in the minority but I’m not large enough to constitute a majority of any group that could elect someone to the House of Representatives.
It’s using the simple numbers essentially, when we hit the point of 26. Now you’ve got enough members in the minority group that when you draw districts to elect two people to the House of Representatives. That minority group could make up the majority of one of those districts. Again, I’m simplifying things a lot, but that’s the first step.
The second step is you have to show that the minority group. The legal term is politically cohesive. In layman’s terms what does that mean? That means, historically, they vote the same way. They’re voting based upon the same ideas or principles. As a result, their votes are not going to be unanimously the same but a large enough number of that minority group will vote in the same fashion that they are bringing a right that can be riveted through the Voting Rights Act and through these constitutional requirements.
The third thing you have to show is, the manner in which the majority votes is such that they could defeat the minorities preference. Essentially, what it means is the second step is you have to show the minority votes a certain way and the majority group all votes a different way. They don’t vote the same way as the minority group. They go in different directions with how they’ve voted so that the minority group is being deprived of the appropriate level representation. Again, I apologize if I got too far into the weed.
I appreciate the comment.
Those are the steps that you get to. What happened in Alabama was African-Americans challenging the way the seven congressional districts were drawn saying, “We’re a large enough population in this state that we should be the majority in two districts and not one district which is what Alabama has done.” The US Supreme Court agreed with the minority group in Alabama and said, “You’re going to have to redraw these maps so that you’ve got a second district that has a large enough representation from the minority segment of the population that they could elect another member to congress.”
What I found interesting in reading Allen, which is just ten years after Rucho. In Rucho, Roberts rather than just looking at, “This is a group that is protected under the constitution.” As he delves into the evidence presented at trial and in the opinion, he goes into, at least on 599 US-20. He starts talking about and naming the statisticians that did these maps and starts explaining the ways in which the maps are drawn and the accuracy of the maps in Alabama.
I just found that fascinating because ten years earlier, in Rucho, he was characterizing the statistical modeling that was being used by the states. I’m paraphrasing it but it’s speculative. I would also point out both cases are 5/4 cases and Roberts is the vote flipping to be the majority. As a result, he’s writing the opinion in both cases but in the Allen case in particular, he’s pointing out that, “The statistical modeling is accurate.” Here’s the interesting thing that happened in Allen. The supreme court sends the case back down to Alabama and says, “Redraw your maps.”
What Alabama then does is they submit the new map and it was basically the same old map they had had before. Essentially, Alabama was daring the court to get involved and do something about it. What happened is, under the Voting Rights Act, this doesn’t exist under the constitution, under the 14th and 15th amendment. The whole idea of the Voting Rights Act is, we’re putting some meat on the bone. We’re giving statutory authority for courts to do certain things when these constitutional violations take place.
One of those things is what’s called injunctive relief. Most people think if you go to court after you’ve been hurt in an accident or somebody doesn’t pay you for work you do and the court gives you money. Injunctive relief would be where the court orders someone to do something like, “You will paint the house. You will transfer that property to Jackalyn because you already took her money for it.”
That’s what injunctive relief is and what the court did in Allen was it said, “If you’re not going to follow the Supreme Court’s holding, we’re just going to pick one of these statistically drawn maps and that’s the map you’re using in the next congressional election.” As a result, Alabama ended up with two African-Americans in Congress.
Truthfully, I’m pleased that Robert made a change in ten years, but I want to say to you, I better understand these cases now and I better understand the way we need to be talking about the courts. I don’t think most people have a clue of what’s happening in the supreme court, how it’s supposed to function and all that.
You and I are going to talk about other things. We may talk about gerrymandering again, but you and I are going to decide what we need to do to truly educate people about the courts because that is the branch of the government that is truly maintaining our democracy. I don’t know if you have any final comments for what you’ve done but I’m extremely appreciative of what you’ve said. It’s very valuable, Richard.
Thank you, and let me do this. I want to throw out a predictor or some predictions or something to be on the lookout for in the pipeline. I thought of this after you and I discussed things. One of the comments that Governor Abbott made with regards to redrawing the lines was he mentioned that in 2024, the way the federal courts are organized, you’ve got twelve different circuit courts appeal over certain states. The fifth circuit is Mississippi, Texas, and Louisiana.
[bctt tweet=”The courts are the branch of government that truly maintains our democracy.” via=”no”]
He mentioned that the fifth circuit had found that this common interest can’t include different racial groups. He said, “In Texas, we’re doing this.” This was his ruse, his cover, I believe. Even as most republicans would acknowledge. We’re doing it to get a few more republicans in DC, but his statement was, “The maps we drew in 2021 were based on our understanding of the law being one way. The fifth has now said it is another. We’re redrawing the maps because we know they will comply with the law as decided by the fifth circuit.” What I want to do is just briefly the case he was referring to as Petteway v. Galveston County.
What the federal district court did in that case was the County Commissioner’s Court in Galveston redrew the maps so that there would be no minority representation on the Commissioner’s Court. The common interests, the minority group that held a seed on the Galveston County Commissioners Court, the group was not just African-American. It was both African-American and Hispanic. Collectively, they were able to show that the common interest of these two minorities was such that they should be considered a single minority group because even putting them together, they don’t make up the majority of Galveston County.
The trial court said, “That’s accurate.” Initially at the fifth circuit, they said, “You have a common interest, but there’s something called an unbonk decision.” What that means is, when you go to a circuit court of appeal like the fifth circuit, you may have 15 or 16 judges that sit on the fifth circuit and three judges will be assigned to decide your case. Unbonk means they get all fifteen judges to gather and collectively, all of them vote on how the cases are decided.
What the entirety of the court said, and I’m going to read directly from the opinion. It said, “Section two of the Voting Rights Act does not authorize separately protected minority groups to aggregate their populations for the purposes of a vote dilution claim.” I think that’s a case we’re going to see in front of the Supreme Court in the next year or two. The issue there would be in particular with Latino and African-American voters where some courts are aggregating them because they can show the common interest in the way they vote under the first step of the jingles test.
We’ve now got the fifth circuit saying, “I get it there. They’re both minorities but they’re different minorities. We treat each of them differently.” That’s one case to look out for. The second one is a case out of the eighth circuit, which is Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota and Arkansas. A few months ago, the case is the Turtle Mountain Band of Chippewa Indians, the how and this is getting into the legal weeds. The Voting Rights Act does not say an individual can file suit for a violation of the Voting Rights Act.
In particular with the grants of certain relief like injunctive relief. It talks about the United States or the Attorney General being able to seek that relief. What a three-judge panel in the eighth circuit Court of Appeals decided months ago, is that as an individual, I can’t file suit as a representative of my minority group for a violation of the Voting Rights Act. I’ve got to rely upon the Attorney General of my state to do that if the state is violating my rights on the basis of race. There, we’re talking about an Indian tribe in one of the Dakotas pointing out that, “You’re violating our rights on the basis of race.”
What that court of appeals said is, “You’ve got to rely on the state to enforce your rights. There is no specific language in the Voting Rights Act that grants to individuals the right to bring suit if the state is violating your rights.” It seems ridiculous to me that if the state is going to be violating my rights, that I’ve got to rely on the state to police itself and sue itself for doing so.
I’m guessing that case is probably headed to an unbonk decision. If that decision holds up, something else could be headed to the Supreme Court. That could redraw the map, even under the 14th and 15th amendment, if the Voting Rights Act is going to be read as a vehicle that can only be used by governmental agencies to enforce these violations. I think that’s totally wrong, but it’s something to be aware of that’s out there.
Richard, I’m so glad you brought these because we’re giving examples to people that you have to start paying attention to what’s going on in these districts and in courts. You’re going to have to pay attention to who you vote for in all these courts that we have representing us because they’re the ones that are going to help make decisions like this. I don’t support either one of those cases. It takes away the process that we believe in a democracy that we do fair redistricting and we establish it every ten years and so forth.
I’m glad you brought them up, though, because then we have to watch those cases because if they go to the Supreme Court and something changes. One of the things you and I can do is we can help track some of these cases and where they’re going. We’re going to have to keep paying attention. I listen to a show and it is primarily about the supreme court. I try to keep up with that show because I know what cases are going before it.
I look forward to us continuing this on a monthly basis. I am extremely grateful to you for bringing your knowledge. I will admit I am glad that I read all these cases, even though I don’t understand it exactly the way you do because it gave me much greater understanding. When somebody starts talking to me about things like this, I’m going to have a lot more knowledge to be able to say, “You don’t know what you’re talking about. Here’s what happened in those cases.” Richard, thank you and I’m going to end our episode at this point.
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About Richard Wilson
Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.
For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.
During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.
His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.