In this episode, Richard (Rich) Wilson and host Jackalyn Rainosek, PhD bring not only their expertise but also their personal journeys into one of the most consequential legal battles of our time: the challenge to Section 2 of the Voting Rights Act of 1965. Opponents claim that Section 2 is unconstitutional under the Equal Protection Clause of the 14th Amendment—but Richard carefully lays out why that argument is flawed.
Richard, a decorated veteran and seasoned trial and appellate lawyer, grew up in Louisiana during a time when voting rights were contested and communities of color faced systematic barriers. His upbringing gave him a firsthand view of the consequences of unequal representation, and later, his years in the courtroom showed how the law can either protect or fail vulnerable citizens. He uses this lived experience to build the case that Section 2 and the Equal Protection Clause not only coexist but together safeguard democracy.
Jackalyn, with a PhD in Counseling Psychology, reflects on her own journey as well. She was in college in 1965 when the Voting Rights Act first passed, giving her a front-row seat to the hope and possibility that legislation brought to the nation. Later, she trained with a lawyer in New Orleans to work with attorneys on resolving high-conflict divorce cases. For ten years, she worked on divorce cases working with lawyers and families through some of the most painful disputes, learning how fairness, empathy, and clear-eyed reasoning can restore balance in the justice system. She now brings that same perspective to the discussion of voting rights and democracy.
Together, they carefully review key cases that illuminate the stakes in Louisiana and beyond, showing how gerrymandered maps harm communities of color by stripping away their fair representation in Congress. They also preview the upcoming Supreme Court hearing scheduled for October 15, 2025, and speculate on possible outcomes—and their profound consequences for American democracy.
Listeners will even see two maps side by side: one that reflects gerrymandering, and one that does not. This visual comparison drives home how district manipulation erodes voting rights and undermines equal protection.
By the end of this episode, you’ll gain:
- A deeper understanding of how the courts shape democracy.
- Insight into how the Voting Rights Act and 14th Amendment work together.
- A clear picture of the challenges ahead in preserving fair representation.
- A personal connection to the real-life experiences of Richard and Jackalyn that fuel their commitment to justice and fairness.
This is not just another legal discussion—it’s a vital conversation about the future of our democracy, shaped by the lived experiences of two professionals who have seen how the law impacts people’s lives every day. You will not want to miss it.
Episode Summary Points:
- The Supreme Court’s Unexpected Turn: The discussion centers on the Supreme Court case of Callais v. Louisiana, where the Court unexpectedly requested additional briefing on a fundamental issue: whether Section 2 of the Voting Rights Act (VRA) is unconstitutional because it violates the Equal Protection Clause of the 14th Amendment.
- The Voting Rights Act and Gerrymandering: The segment offers a lay and legal explanation of Section 2 of the VRA, emphasizing its role in preventing the “denial or abridgement” of voting rights based on race or color, specifically through the tactics of packing and cracking in gerrymandering.
- A Personal History of Voting Rights: Dr. Jackalyn shares her personal experience of living through the dilution of minority voting and participating in Civil Rights marches in the 1960s, underscoring the vital historical necessity of the VRA.
- The End of Pre-Clearance: The landmark 1965 VRA, signed by President Lyndon Johnson, is reviewed, highlighting the role of Section 5 (pre-clearance), which was later destroyed by the Supreme Court, opening the door for “crazy maps” and renewed discrimination.
- Louisiana as the Case Study: Robinson v. Ardoin: The initial case challenged Louisiana’s congressional map for having only one majority African-American district despite African Americans making up one-third of registered voters, violating Section 2 of the VRA under the Gingles test.
- The Tension Between VRA and Equal Protection: The core legal conflict is defined: the Equal Protection Clause forbids racial gerrymandering, while the Voting Rights Act often “insists that districts be created precisely because of race” to ensure fair representation.
- The Callais Challenge & Political Motivations: The subsequent case, Callais v. Louisiana, challenged the newly drawn map on Equal Protection grounds, claiming it was an unconstitutional, race-predominant gerrymander. The transcript details how political motivations—specifically protecting the seats of powerful Republican leaders like Mike Johnson (Speaker) and Steve Scalise (Majority Leader)—led the state to choose a legally dubious map over a more geographically compact alternative.
- The Supreme Court’s Big Question: By reframing the issue in Callais to the constitutionality of Section 2 of the VRA itself, the Court is poised to make a potentially “monumental decision,” paralleled with historical re-framings in cases like Citizens United.
- The Kavanaugh/Roberts Factor: Legal analysis focuses on Chief Justice Roberts’s historical concerns and preference for non-substantive issues, and Justice Brett Kavanaugh’s consequentialist approach, suggesting the final vote on Section 2’s constitutionality may rest with one of the two.
- A National Political Warning: The states most aggressively drawing discriminatory maps (Louisiana, Texas, North Carolina, Georgia) are all former members of the Confederacy and warn that the battle over voting maps is a struggle for power and control over America’s diverse electorate, cutting across party lines.
References for Podcast 143:
- National Archives, “The Voting Rights Act (1965), https://www.archives.gov/milestone-documents/voting-rights-act, Public Law 89-110, S. 1564
- 605 F.Supp.3d 759, United States District Court, M.D. Louisiana, Press Robinson, et al. v. Kyle Ardoin, in his official capacity as Secretary of State for Louisiana consolidated with Edward Galmon, Sr., et al. v. Kyle Ardoin, in his official capacity as Secretary of State for Louisiana, Civil Action 22-211-SDD-SDJ, Civil Action 22-214-SDD-SDJ, Signed 06/06/2022. https://case-law.vlex.com/vid/robinson-v-ardoin-civil-930414666.
- 145 S.CT. 2608, Louisiana, Appellant v. Phillip Callasi, et al., Press Robinson, et al., Appellants v. Phillip Callais, et al., No. 24-109, NO. 24-110, June 27, 2025. https://www.supremecourt.gov/opinions/24pdf/24-109_l53m.pdf
- Nos. 24-109-, 24-110, In the Supreme Court of the United States, Louisiana, Appellant, v. Phillip Callais, Et Al., Appellees, Press Robinson, Et Al., Appellants, v. Phillip Callais, Et Al., Appellees, On Appeal from the United States District Court From the Western District of Louisiana, Brief of Former Republican Governors Arnold Schwarzenegger, Christine Todd Whiteman, Marc Racicot, and William F. Weld as Amici Curiae in Support of Robinson Appellants, September 3, 2025. (This case will appear before the Supreme Court on October 15, 2025.
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The Supreme Court Vs. Democracy: The Fight Over Section 2 With Richard Wilson
Introduction To Gerrymandering & The Voting Rights Act
I’m so excited that you are going to get to read about the courts and about laws and things that have happened in the Supreme Court and other courts, because I think you’ll have a much better understanding of gerrymandering. One of the things that Richard and I want to do in this episode is talk about the reasons that we think it’s so important for you to have all this information. I’m not going to tell you first. Richard, I’m going to ask you. What’s the reason our readers need to know so much about the courts and about gerrymandering?
It’s interesting that you asked that because I assume that in this episode, we would be moving on to a different topic. As you recall, when we wrapped up our meeting last time, I had given you two cases to pay attention to from a standpoint of the Voting Rights Act. There was the one in Galveston about whether or not you could pack multiple minorities together to be a cohesive group, and there was the one out of the Dakotas about whether or not Section 2 of the Voting Rights Act even provided for a private cause of action.
Lo and behold, while we were discussing this, in a case that has already been argued in front of the United States Supreme Court, Callais v. Louisiana, you pointed out to me that the Supreme Court wanted additional briefing on a particular issue, and the briefing was submitted probably about the time the episode dropped on the particular issue.
That issue framed by the Supreme Court for additional briefing, it’s not an issue that was argued to the court over the summer was is Section 2 of the Voting Rights Act unconstitutional because it violates the equal protection clause of the 14th Amendment of the US Constitution. Before we get to the legalities of the issue, I’d like to ask you, being around when the Voting Rights Act was passed, can you share with us your subjective views on what the act did and why the act was necessary?
Living Through The Fight For Fair Representation
Thank you. Richard, you can you can interrupt me or whatever you need to do because I just want to say something. I lived in the era of the diluting of minority voting. I saw it over and over again. I saw people of color not ever having a chance to even express themselves and be able to have someone represent them in Congress. To me, that is not a democratic process. When the Civil Rights Act was passed, I was delighted to see the Voting Rights Act. I want to tell you something, Rich. You may not know this about me, but in the 1960s, I did marches. I was a part of the Civil Rights marches, and I marched in Louisiana several times, so I can tell you what it was like.
My mother kept telling me if I didn’t stop marching, she wouldn’t send me back to UT in Austin, so I quit marching as much, but I still did that. I think the thing that really concerns me is there’s no more protection against the crazy maps we’re seeing right now. The other thing for me is, and I’m going to go into the Voting Rights Act after you and I share more about this and so forth and you’re going to go into Robertson and some others. I think the thing that concerns me so much is that people are the things that catch their eye or the things that are going on the prison does, or someone else does, or the Senate or the House or whatever.
They’re not paying attention to what’s happening in the courts. The courts right now are the only branch of our government that I think is maintaining our democracy. I think people need to have a full understanding. The reason I ask you onto this show and look forward to it, is that, as a lawyer, you have helped me understand what’s going on from case to case. That, to me, is tremendous value. I also think gerrymandering, whether it’s packing or cracking, is outrageous. It’s a way for political parties to try to gain power at the unfortunate situation of persons of color.
I don’t want to see a world that I lived in that doesn’t have a democracy that represents all people. I think there are ways to draw maps, and I think we’re seeing some that are really crazy. That’s what my statements will be. I’d love to hear more from you and I will talk more after you finish talking about your personal views of Louisiana and so forth. I’ll be happy to talk more about the Voting Rights Act, and then we’ll go into the other cases. Go forth, Richard.
Before I get into the legal issues, the particular perspective I bring to this is I was born in South Louisiana, spent the majority of my life in, and was raised in Central Louisiana. It’s interesting, we’ll get into a couple of these maps, but from a standpoint of growing up in Louisiana, I probably have a little better understanding of the divergent cultures there and the connections between certain communities in Louisiana that would be grouped together in some of these maps, either the ones that were adopted or some of the ones that were presented and not adopt that we’ll also get into.
Understanding Section 2: Protecting Representation Through The Courts
Having shared that background, we talked last time briefly about Section 2 of the Voting Rights Act. Actually, there was a large focus on it, but the focus was generally on the Voting Rights Act. I would like to read when people hear Section 2 of the Voting Rights Act, what is that? Pardon the legalese, but the statute reads, “No voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
[bctt tweet=”Gerrymandering, whether through packing or cracking, is outrageous. It’s a way for political parties to gain power at the expense of people of color.” via=”no”]
There is subsequent language talking about the application of Section 2 Subsection B, and that reads in part that there is a violation if the process for electing in a state or subdivision operates so that a class of citizens that their members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.
Cutting through all of that legalese, Section 2 was broad enough to encompass things that we touched on last time like poll taxes, but it’s also broad enough related to its application under Section B to involve gerrymandering, the packing or cracking, so that if I’m a member of a racial group, I cannot be discriminated against by my group being divided such that I don’t have the ability to elect the representative of my choice. That’s how Section 2 applies to gerrymandering.
I thank you for that, Richard. My concern is that here in the state of Texas, they have a new map drawn that eliminates any possibility for 60% of our state, which are Latino, and then the African American community. My concern is what is the Supreme Court going to do around this argument between the Civil Rights Act and Section 2 and the Equal Protection? I think you’re going to go into that.
I’d like to have the opportunity to just read something from the National Archives. By the way, as all of my readers know, I’m going to provide you with references because I have references to the cases and all kinds of things like that. Richard, I’d like to read some things about the Voting Rights Act. I think it gives the reason I am so concerned if they do anything to eliminate Section 2.
This act was signed in law on August 6th, 1965 by President Lyndon Johnson. It outlawed the discriminatory voting practices adopted in many Southern states after the Civil War, including literacy tests as a prerequisite to voting. This act to enforce the 15th Amendment to the Constitution was signed into law 95 years after the amendment was ratified. In those years, African Americans in the South faced tremendous obstacles to voting, including not only poll tax, literacy tests and other bureaucratic restrictions to deny them the right to vote.
I taught history for many years and government and other things. What I know is there are many stories where the literacy tests a White person couldn’t have passed them. There were some Caucasians that tried to take them and they couldn’t pass them, so it was ridiculous. They also risk harassment, intimidation, economic reprisals and physical violence when they tried to register or vote. As a result, African American voter registration was limited along with the political power. I see that’s what’s happening with these maps that are being drawn right now.
I know the maps are only way to maintain power for the current Republican party. In 1964, numerous peaceful demonstrations were organized, but civil rights leaders and considerable violence were met, which brought attention to what was going on with the voting rights. The murder of voting rights activists in Mississippi, and the attack by White state troopers on the peaceful marches in Selma, Alabama, gained national attention and persuaded President Johnson and Congress to initiate meaningful and effective national voting rights legislation.
The combination of the public revulsion to the violence, which we’re having now, there’s 72% of the people in this country do not support what’s going on, and they don’t like the violence that’s happening. Johnson’s political skills stimulated Congress to pass the Voting Rights Act on August 5th, 1965. I think there’s another thing too that I want to mention. In Section 5 of the Act, it requires covered jurisdictions to obtain pre-clearance from either the district court for the District of Columbia or the US Attorney General’s Office.
We now know that one of the things the Supreme Court has done is they have held cases and they now have destroyed that possibility for us to be protected. We didn’t have all these maps coming out that are very discriminatory based on race and other things. We didn’t have that going on until the Supreme Court eliminated really Section 5 of the Voting Rights Act.
Gerrymandering On Trial: Robinson, Callais, & What’s At Stake
That’s what I can tell you, but that’s where I’m getting concerned. I think you have the information that can really help us understand what’s going on. I think you have an opinion as a lawyer. What you see are the dangers, but also the realities, because you have some maps to share with us. Please, go ahead and I’ll interrupt you when I need some clarification, Richard.
Thank you, Jackalyn. Last time, I talked about the fact that, as you touched upon briefly, Section 5 of the Voting Rights Act has been done away with. In a 5-4 opinion written by Justice Roberts, he determined in his innate wisdom that we had come a long way since 1965 and the pre-clearance requirements were no longer needed. The Callais case that’s really our focus in this episode begins with a case out of the Middle District of Louisiana, Baton Rouge. That case was Robinson v. Ardoin.
What Louisiana did was when I grew up in Louisiana, we had eight congressional districts, and because Louisiana’s population has not grown in proportion to the population of the entire United States. Louisiana is now down to six congressional districts. When the maps were redrawn in 2020 or after the 2020 census, it was actually 2022, they were drawn so that you only had one district in Louisiana that covered essentially inner-city New Orleans and surrounding areas along the Mississippi River that was a majority African-American district, despite the fact that one third of the registered voters in Louisiana identify as part Black.
That’s how it’s described in the voter registration materials, as was pointed out in Robinson. There’s the Gingles test we discussed last time that has the three elements to it. One of the elements is, is the minority group large enough and geographically compact enough to constitute a majority in a single-member district? Two is, is the minority group politically cohesive? Three is, is the White majority sufficiently voting as a block to enable it to usually defeat the minority’s preferred candidate?
What happened in Robinson was a group of affected citizens filed sued, and said, “We’re one third of the registered voters in this state is African-Americans. We only have one congressional district that is a majority African-American district. That’s 17% of the state, not one third of the state, so we’re being discriminated against under the Voting Rights Act.”
They were able to show that they met the Gingles requirements. After you do that, after you prove those three steps, map drawers in the state are then required to use a series of senate factors. I’m not going to get into all of them. There are 20 or 30 of them. One of those factors provides that in compliance with the Voting Rights Act and the 14th Amendment, the court will look at whether or not the congressional districts need to be set up in proportion to the population of the state.
With the Louisiana being one third African-American amongst registered voters, the court in Baton Rouge and Robinson said, “You’ve violated the Voting Rights Act. You have cracked African-American communities that are geographically compact and drawn the map such that even though African Americans make up one third of the state’s population, you’ve only given them one congressional district.”
The district court in Robinson told the state, “You’ve got to redraw the maps.” The state then appealed to the Fifth Circuit in New Orleans, the Federal appellate Court beneath the US Supreme Court. The Fifth Circuit agreed with Judge Dick, the district court judge in Baton Rouge, and said, “Yeah, these maps violate the Voting Rights Act. You’ve got to redraw it.” The Fifth Circuit decision came down about a week before Louisiana had to have maps in place for its next congressional election.
What Louisiana did was they met real quickly, they voted on a new map and put it in place. The elections were held, but even before the elections were held, you had another group of people in Louisiana that were from the Western District of Louisiana, I think the Shreveport area, I believe, but I’m not certain on that, who filed suit and said, “This new map you’ve drawn violates the equal protection clause of the United States Constitution in the 14th Amendment because as a White person, you’ve now put me into a district that was drawn primarily on the basis of race.”
The court in Robinson talked about the tension between the Voting Rights Act and the Equal Protection Clause. I’ll read this language from Judge Dick’s opinion. “Map drawers are pulled in one direction by the Equal Protection Clause, which forbids racial gerrymandering that is intentionally assigning citizens to a district on the basis of race without sufficient justification. The Voting Rights Act pulls in the opposite direction, and in fact, often insists that districts be created precisely because of race.”
[bctt tweet=”Map drawers are pulled one way by the Equal Protection Clause, which forbids assigning citizens to districts based on race without sufficient justification. The Voting Rights Act pulls the other way, often requiring districts to be created precisely because of race.” via=”no”]
What happened is the first map that was drawn was deemed to violate Section 2 of the Voting Rights Act. What Louisiana then did was they put in place a new map, and in particular, they were complaining about District 6, which basically runs from Baton Rouge down here, up through Alexandria, all the way to the Northwest part of the state that is in Shreveport. They were complaining that that district was drawn primarily because of race in violation of the Voting Rights Act.
That was the complaint in Callais, and because it dealt with constitutional issues, you had a three-judge panel. We talked about this last time about the case from Turtle Ridge and whether or not there’s a private cause of action under Section 2 of the Voting Rights Act. The reason I mention this is because you put Louisiana in a position where it now has to defend the map that it is drawn as be meeting the requirements of the Constitution. The interesting position the state of Louisiana was in is the Attorney General who fought to uphold the maps in the Robinson case was Jeff Landry. By the time Callais was filed, Jeff Landry was now the governor of the state of Louisiana.
He was the one who decided that map that I showed you is the one we want to use going forward. Landry is the one who chose that map from multiple maps that were available to the state that would create a second congressional district, wherein the majority of the voters in that district were African American. He basically cherry picked one particular map. The challenge in Callais, again, was not under the Voting Rights Act. The argument was the map you drew is unconstitutional because it violates the equal protection clause.
Your readers may hear that all the time, but the question would be what is he talking about right now? What is the fat guy talking about? The answer is the 14th Amendment of the United States Constitution, which reads, “No state shall make or enforce any law, which shall,” and there are certain things you cannot do, but one of them is deny to any person within its jurisdiction, the equal protection of the laws.
As fate would have it, while the law was drawn up primarily to protect African Americans post-Civil War, any person includes White Anglo-Saxon Protestants too. That’s what you had were the majority White population claiming that that district, the sixth district, violated the Constitution and discriminated against them on the basis of race. The legal question is, was race the predominant factor in drawing that congressional map that I’ve shown you? Not a factor, but the predominant factor.
There are some curious things about Callais that I would like to comment on as a lawyer. One is that the case was tried in less than three days. I can tell you as a lawyer, I have tried simple cases concerning attorney malpractice or injuries that have taken longer than three days. That’s a lot of heavy lifting to do in just three days. In the opinion in Callais, they recount testimony from twelve specific witnesses by name. I can tell you, that’s a lot of witnesses to call in three days as well.
The other thing I’ll mention in Callais is that because it was a three-judge decision on constitutionality, the three judges decided that yes, that map violates the equal protection clause. They found the map unconstitutional, so the appeal goes directly to the United States Supreme Court right. The other thing I find interesting about Callais is when a case goes to the Supreme Court, the parties each file their briefs, but other people that have an interest in the particular legal issue can file what are called amicus briefs, which is a brief standing as a friend of the court to put forth your position and why this issue is important to you.
The interesting thing about Callais is that then Governor Landry filed an amicus brief in Callais, it was argued in the Supreme Court. As we began, the court then framed a new issue. Is Article Section 2 of the Voting Rights Act unconstitutional as applied? Governor Landry filed an amicus brief despite being the governor of the state of Louisiana, the defendant in the lawsuit. In his amicus brief, he said, “Yeah, it is unconstitutional. We need to do away with the Gingles requirements. They’re just unworkable.
It goes back to what I was talking about with turtle rig, this position of where the state is supposed to be representing our interest as citizens and you have the governor doing something like that. Pardon me for putting it this way, but I find it peculiar. I will also point this out, and you very well may disagree with me. I tend to agree with the majority in Callais on the basic initial issue that this map is unconstitutional. I’m saying that because coming from Louisiana, I know that the economic interest in Shreveport is far different than the economic interest in Alexandria or Lafayette or, in particular, North Baton Rouge.
Also, I think the description of this map was an ink blot placed on the state and allowed to just roam freely. That’s how a court described it in 1996. The reason I say that is because while this map was put forth in 2023, 2024. The District 6, the one that was held unconstitutional, is remarkably similar to a congressional district that was used in a series of cases under the Voting Rights Act in Louisiana in 1996 or in the early ‘90s. The case in particular was haze too in 1996, where almost the exact same district was found to be unconstitutional.
There’s some particular language by the two judge majority in Callais They say they, they talk about the Hayes map from the early ‘90s, and the map that they were dealing with, and they wrote, “When converted to a Black and White map and placed next to the Hayes-2 map, the similarities of the two maps, that being the map they were considering in two becomes obvious.
What you’re dealing with is the state of Louisiana ultimately adopted a map where the congressional district being challenged had already been found unconstitutional under the equal protection clause almost 30 years earlier. I think ultimately when you consider the factors under the equal protection clause, the way the legal analysis works under the equal protection clause, it’s different from Gingles.
The first question is, was race a predominant factor, as I mentioned earlier? If the answer to that question is yes, there’s what’s called strict scrutiny on constitutional cases. The second step is the state must then prove that the use of race as a predominant factor was a compelling interest, and that the use of race was narrowly tailored to meet that end.
What the court did in Callais at the trial court level is they said, “We accept. There’s US Supreme Court precedent that says that complying with Section 2 of the Voting Rights Act is a compelling interest. That’s established as a matter of law.” The question then becomes, was the map as drawn narrowly tailored to meet that in? Guess what factors the court will use to determine whether the map is narrowly tailored to meet that in?
I have no idea. Please tell me.
From Gingles To Callais: When Law Meets Political Reality
The Gingles factors. Ultimately, that’s what the court went to. The first issue in Gingles about whether or not the minority group is geographically compact, the court said, “With this particular district, it’s not geographically compact.” At this point, while I agree with the court that this map is not constitutional, I think it’s worth pointing out that this was not the only map that the Louisiana legislature was considering post-Robinson. There were multiple maps they were considering.
In fact, one of the witnesses in the Callais case was State Senator Duplessis from New Orleans. His testimony was that he supported primarily the map for Senate Bill four. He said that ultimately, he voted for this map I’m showing, but the map that he supported was this one. Here’s where I want to use my Louisiana background to talk about this map. The first district that would’ve been a majority African American district is the green one down in the bottom center of the map.
The second district that would’ve been a majority African American district is the yellow district above that green one, district five on this map, which was presented but ultimately not voted out of committee. From a standpoint of the geographic compactness and the cohesiveness of this district, the thing that I would point out is that this district runs down the Mississippi River from the Northeast corner of the state. What it encompasses are what are called the Delta parishes in Louisiana.
We call them counties here in Texas and Louisiana. Where I grew up, they’re called parishes. These parishes that run along that river, their primary economic driver is agriculture. It was in the 19th century, and it is now. You’ll drive through Tensas Parish, Madison Parish, Concordia Parish, and their cotton fields all around you. Those districts are also predominantly African American, or those parishes are. Tensas Parish, it is a small parish by population, but it is 54% African American. Madison Parish, also a parish with only about 10,000 people in it, 61% African American.
As you run down to just north of Baton Rouge into Avoyelles Parish, St. Landry Parish, and Pointe Coupee Parish, all of these parishes are delta parishes that rely almost exclusively on agriculture. From a standpoint of factors that they have in common, that District 5 has multiple factors in common aside from race, and is a district that, in my opinion, would both meet the test of Gingles and also with pass muster under the equal protection clause.
The next question becomes, why did Louisiana not use that district that map I’ve just drawn you and instead use the map I showed you earlier, in which I’ve said that legally I think District 6 is unconstitutional under the equal protection clause? There are conspiracy theorists that would probably say Governor Landry did it because he knew, or he had advisors that knew that District 6 was going to be unconstitutional. Perhaps he was framing this issue.
Who knows? Maybe there’s some argument to support that. The opinions would be based on commenting about things like the fact that that district is already unconstitutional. The fact that as the Attorney General, he was trying to defend a map that had been held to violate the Voting Rights Act, the fact that he filed an amicus brief arguing to overturn the map that the state’s using. The reality is I think it has more to do with politics. There was testimony about that. In fact, it was a major factor the dissent used in the Callais case at the district court level to say, no, this wasn’t predominantly about race.
The reason this particular map was chosen was based upon politics. In that regard, what I’d like to point out is Louisiana is a state with a little over 4 million people, but the testimony when they were considering the districts and the testimony at trial was that they didn’t want to put the district of Mike Johnson at risk by redrawing his district in Shreveport. He is the Speaker of the House at this time.
They did not want to put the position of Steve Scalise out of New Orleans at risk by redrawing his district. He is currently the Majority Leader in the US House of Representatives. What I’m telling you is politically the two most powerful members of the House of Representatives are both from a state with a little over 4 million people in it. The state openly discussed and made a factor in redrawing the maps to keep those men in Congress.
They wanted to make sure that their districts were not at risk. They also wanted to preserve the District of Julia Letlow. In that map I showed you, she lives in one of the Delta parishes and Richland Parish, where she lives is not predominantly African American, but it is, I would, say about 60-40 in the split. The map that I showed you would’ve put her in a district that is 52% African American, which means she was going to lose her seat.
They did not want that to happen. Instead, they selected a map that would ultimately remove from Congress Congressman Garrett Graves, who was deemed not to be a good Republican. This is testimony from the underlying case. This is information that is largely public record. Politics was the major issue in why the map was drawn the way it is. The state basically wanted to make sure they kept the two most powerful members of the House of Representatives.
The thing that I find interesting is remember last time when we were talking about Rucho and Allen v. Milligan, I talked about the evidence of just how precisely these maps can be drawn. Bringing that full circle, what I’m saying is there were clearly ways to draw maps that would’ve given Louisiana two predominantly African American districts that would have easily passed muster under the Voting Rights Act and would not have been unconstitutional under the equal protection clause.
All of this background discussion ultimately comes to the issue of what’s going to happen? The Supreme Court is going to re-argue the Callais case. They’re going to hear arguments again. Only the arguments will no longer be, is Congressional District six in Louisiana constitutional as drawn up under Section 2 of the Voting Rights Act? The argument is now going to be, is Section 2 of the Voting Rights Act unconstitutional?
Reviewing the filings with the US Supreme Court, since your readers pointed Callais out to you, and you mentioned it to me and said, “Not so fast. We’re not moving on from gerrymandering yet, regardless of what you might want to do, Richard.” There have been a large number of amicus briefs filed on this case. One of which I read that I thought was very compelling was an amicus brief filed by former Republican governors.
The governors included Arnold Schwartzenegger, Christine Todd Whitman, the former governor of New Jersey, who emphasized the importance of Article 2 of the Voting Rights Act. That, and that point out that it’s really not as hard as they would have you believe to draw a map that both passes muster under the Voting Rights Act, and also is constitutional under the 14th Amendment of the Constitution.
[bctt tweet=”It’s really not as hard as they’d have you believe to draw a map that complies with the Voting Rights Act and remains constitutional under the 14th Amendment.” via=”no”]
I’m looking for one particular thing that I pulled out of some of the briefing that I wanted to mention. Here it is. In his amicus brief, Governor Landry makes the point that Louisiana has spent millions of dollars having to defend the congressional districts that it draws. The state as a whole, including municipalities, has spent millions of dollars defending state senate districts, state representative districts, even municipal districts on things like a police jury.
That is the equivalent of a county commissioner’s court here in Texas on all of these levels. The case law, he cites to point out that this costs a lot of money, not just in Louisiana, but elsewhere. The cases he raises to the court to point out this issue are from Louisiana, North Carolina, Georgia, and Texas. My question to you is, what do all of those states have in common?
They have in common the fact that all their district maps and the drawing of them are eliminating any right for persons of color to be represented in the House of Representatives. They are definitely determining a way to have a White dominated representation of the House of Representatives because that’s what they’re working on. That will then support the current administration.
Will The Supreme Court Uphold Or Undermine The Voting Rights Act?
The reason I think it’s so important for you to have gone through all of that is because on, I think it’s October 15th, I may be wrong, that’s the case that’s coming up. I personally feel very concerned that they will eliminate Section 2. I think you’ve given a very good argument that if they had taken the second map showed that we would have two African American districts. Now somebody’s going to get their lose their seat.
This is not about supporting the people that we like. This is about representing the population of Louisiana. That’s the reason it is outrageous. The map that has been drawn here in Texas, it is not a representation. It would take 3 Latinos to equal 1 White vote, and it’s 5 African Americans that would equal 1 White vote with that map they’ve drawn.
To me, my greatest concern is will the Supreme Court of the United States now controlled by a number of people that have been appointed by Trump, what will they do and will they maintain the Section 2 of the Civil Rights Act and not use the equal protection argument to try to destroy more the Civil Rights Act? I think one of the things that disturbs me in all the readings I’ve done, it seems the current Republican Party is very fearful of the diversity of America.
They are trying to control the way that it is done so they will get what they want and they will continue their extremist views. I don’t know, Richard, but I think all the arguments you’ve given, we, as Americans, need to stand up and say no. The second map that you gave, I would like to have that. I sit there and so you have four districts that represent the Caucasians and Louisiana, and you’re going to have two African American districts. As White people, you still have a major representation.
Going beyond the discrimination now or in the past, the telling feature to me was that all four of those states are states that are from what you would characterize as the deep South. Let’s take it back 60 years, all four of those states were members of the Confederacy, not of the Union, even though I’m from one of those states. One of the other things that Governor Landry points out in his amicus brief, even though I disagree with the legal arguments he’s making, one of the other things he points out to argue that the Gingles test is unworkable and Section 2 of the Voting Rights Act should be held unconstitutional.
Plaintiffs, if they are savvy, may even choose a district precisely because its judges are more likely to take a narrow reading of reasonable compactness under Gingles and a broad reading of racial predominance under Shaw, two cases under the Voting Rights Act. The point he’s making is that because of the way judges are chosen, venue can be used to cherry-pick where you want to file a lawsuit.
Richard, I think that’s what’s happening, because I think the first Callais case was filed in the Central District of Louisiana. The second was filed in the Western District because they have a conservative judge there, and they knew that they could get support they wanted.
The Robinson case was filed in the Central District, which is Baton Rouge. You’re right. Callais was filed in the Western district which I’m sure most people would concede as a bit more conservative in its leanings. Although the reality is Louisiana, ultimately answers to the Fifth Circuit Court of Appeals, which is the most conservative appellate court in the federal court system in the United States.
Working back from a standpoint of the states that Governor Landry talked about in his brief, in the amicus brief by former Governor Schwarzenegger and Whitman and others, I would point out that the majority of states that also have to deal with the Voting Rights Act and the Equal Protection Clause, it’s not something that applies exclusively to the Southern states like the pre-clearance issues did. It’s something that applies to all 50 states. The point that they made in their amicus brief is the majority of the states are really having no problem with this. It’s just a handful of states that are having problems with it because of the way they choose to do things, which is what you touched upon.
[bctt tweet=”The Voting Rights Act and Equal Protection Clause apply to all 50 states. Most have no problem with this—it’s only a handful that do, because of the way they choose to operate.” via=”no”]
The Role Of Judges In Deciding The Fate Of Section 2
Richard, let me go back to something because I think it’s important. We have more than four Republican governors that have said, “We know that the maps can be drawn that support equal protection, and we also know that support the second section of the Voting Rights Act.” We have experts that are saying that is possible. What I think our public and our readers need to understand is currently in Texas, now Missouri, who’s been pressured, there’ll be others that are coming to follow through with North Carolina and the others that you mentioned, Georgia, and whatever.
They’re being pressured either by the vice president or the president to draw maps so it can protect what they’re doing right now. I read another one another article that there’s 72% again in the polls do not support anything about what our current president is doing. It’s all a way to grab power, and that’s what gerrymandering really is. What I want to say to you is I think you’ve given us every detail that we consider, and you and I talked about that. I need for you to start talking about the importance of the appointments and the election of judges in our country, because we have got to stop.
I know when I vote that I do everything to get to know who these judges are for our state. I make every effort to do that because I belong to a group of women and men that really look at it and we ask our lawyer friends, “Who do you think is the best and who will truly support our democracy?” I think we’ve got to do more education on that.
You and I are going to move on from gerrymandering because your expertise are also a way to educate us about the judges that we’re appointing, because it can’t be just the Supreme Court we’ve got to be concerned about. We’re showing evidence that the Western section of Louisiana has a conservative judge. Now the Supreme Court is going to have a relook at Callais that was decided previously that would have supported the Voting Rights Act Section 2.
That will be a discussion for the future. With the regard to how judges are chosen on state levels and on federal levels, and what has changed about that. With Callais, the question I’m getting is what do I think will happen? Let me start by pointing out that what happened was Callais was argued over the summer and the court has not issued an opinion. Instead, they’ve said, “We want a re-argument on this one specific issue.” The framing of the issue is, is Section 2 of the Voting Rights Act unconstitutional?
I looked into and tried to figure out what are the requirements for re-arguing in this circumstance when an opinion hasn’t been issued? I found a blog written by several law school professors that basically point out that, look how these decisions are made and how this happens is done in secrecy. We’re not sure how many votes it requires, what goes into it.
They did point out, however, that there are some clear circumstances where you do this, such as a judge retires or dies, and perhaps the division of the judges is such that you need that ninth judge on the court to break a tie. You re-argue it to the court with the new judge sitting. That’s not the case here. These professors pointed out that since Roberts has been the Supreme Court’s Chief Justice, there have been prior circumstances where a case will be re-argued, and what the court does is reframe the issue to something other than has been presented by the parties.
By reframing the issue, what I mean is I go into court and, to make it simple, as a plaintiff, I sue someone for running the red light and say, “You were at fault.” After presenting all of my evidence to the judge, the judge says, “I want you to come back next week and present evidence on whether or not the signal light was working correctly.” The judge has decided to change the scope of my case. That’s what the Supreme Court has done here.
What was pointed out in this blog was that the Roberts Court has done this before. There’s a case called Citizens United. Originally, when that came to the US Supreme Court, they described it as a simple question concerning violations of campaign finance laws. It was then re-argued, and ultimately, the decision the court came down with, which was much broader, was that corporations are people too, and contribute to political campaigns.
I know that decision is criticized a lot because there is a belief in America that it ultimately has led to large corporations controlling the levers of government. There’s another case of the Royal Dutch Petroleum Company, where the initial issue was, does the Alien Rights Act give rise to a private cause of action to Nigerian citizens.
The court then reframed it and said, “We want to know whether or not this particular statute even applies to actions that occur in foreign jurisdictions,” in this case, Nigeria. In each of those circumstances where the court reframes the issue, they’ve led to what many would characterize as monumental decisions. Here we’re dealing with what I would consider a very large issue. That is, is a law that has been in effect now for 60 years suddenly unconstitutional under the equal protection clause of the, of the 14th Amendment of the US Constitution?
What do I think will happen? I know that in the Alabama case, the Milligan case, Justices Thomas, Gorsuch, Amy Coney Barrett and Justice Alito all took a position counter to Section 2 continuing to have effect. I feel pretty comfortable in saying that they’re likely to come down on the side of saying that, “No, we don’t need Section 2 anymore. Yes, Section 2 violates the equal protection clause.”
I also feel pretty comfortable that Justices Sotomayor, Kagan, and Jackson are going to go in the opposite direction. Who knows how many justices were required to decide to re-argue the case? I do know from the order of re-argument that, that Justice Thomas actually said, “I’m descending from this. I don’t think we need to re-argue the case. I think we can go ahead and decide the issues before us.”
I don’t know how many judges want re-argument, but it’s clear that there are enough who want it. Ultimately, the decision comes down to what will Chief Justice Roberts do, and what will Justice Brett Kavanaugh do? This is ultimately me looking into a crystal ball, and I’m not sure what I see in it, but I’m going to take what I would call a WAG, which is a wild ass guess, maybe slightly educated.
Justice Roberts, many years ago, at in a public speech, said, “You wonder if you’re going to be John Marshall or you’re going to be Roger Taney. The answer is, of course, you were certainly not going to be John Marshall, but you want to avoid the danger of being Roger Taney. John Marshall was the first justice of the US Supreme Court. Roger Taney was the justice who wrote the opinion for the majority, and was the chief justice when the Dred Scott opinion was issued, which many people think was a linchpin leading to the Civil War. He’s considered by many to be the worst Chief justice ever.
Roberts, I think, has a certain level of concern about how he will be perceived in history. He also tends to like non-substantive issues, things like standing where you ultimately avoid the really dense, important constitutional issue and decide the case on something else. The reason I mention that is with Callais, one of the arguments that’s been made by an intervener that’s basically representing the interest of the state of Louisiana was that the plaintiffs never challenged the constitutionality of Section 2 of the Voting Rights Act so the issue’s been waived, the court can’t take it up.
Suus ponte, meaning on its own at this late juncture after the case was already tried for 3 days before a 3 judge panel in the district courts. Honestly, waiver is the type of issue that Roberts really likes to fall back on because it avoids the heavy lifting of dealing with a major substantive issue like the constitutionality of the statute. I think he’s going to go with Sotomayor, Kagan and Jackson. I think ultimately, what will happen falls upon what Brett Kavanaugh decides to do. He’s seen as being a strict constructionist, a textualist who focuses on the words. Here I don’t think that there’s any real argument about the construction of the 14th Amendment or Section 2 of Voting Rights Act. I think the issue here is ultimately the application and the constitutionality.
Justice Kavanaugh has, in prior opinions, whether they’re majority opinions or dissenting opinions or concurring opinions, been a justice, unlike Justice Gorsuch, who will look at the long-term effects, the consequences of the decision being made. There’s a case called Moore v. United States, where in the majority opinion he wrote, he talked about the consequences of not allowing the taxation of certain types of income, and ultimately what could befall the United States as a whole if they decided that case differently.
At the same time, he’s being roundly criticized for issuing an opinion on what they call the shadow docket, which is where the Supreme Court will decide things without issuing a controlling authority or a majority opinion. That was the case, Noem v. Vasquez Perdomo, in which you had certain immigrants that were challenging the actions of ICE to stop people solely based on their being a Latino.
One of the comments he made in going ahead and writing why he was voting the way he was voting on the shadow docket was that reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a US citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter.
What I’m telling you is that, depending upon how he views the consequences, he can go either way. What I’m telling you is I’m predicting ultimately the decision about whether or not Section 2 of the Voting Rights Act or Article 2 of the Voting Rights Act remains constitutional, I think is going to come down to where Justice Brett Kavanaugh decides to go on that issue and which side or group of justices he chooses to side with. Who will it be? You got me.
[bctt tweet=”The decision on whether Section 2 of the Voting Rights Act remains constitutional will likely come down to Justice Brett Kavanaugh and which side he chooses to join.” via=”no”]
A Call To Protect Section 2
I thank you for that, and I think we have a clear message. One of the things we as citizens can do is start voicing loudly what we believe that the Civil Rights Act, Section 2 is constitutional, and it does not mess with the 14th Amendment protection section in there. It is ridiculous to have these maps, which we’re now looking at. They remind me of the pre-Civil Rights Act.
Partly legally, but mostly practically, I think the decision on pre-clearance was wrong. The reason I think it was wrong is if you were to look at litigation concerning congressional districts or voting districts in Louisiana, when pre-clearance was required, it wasn’t really happening much. Suddenly, once pre-clearance was taken off the board after 2012, 2013, you’ve got, to borrow your term, these crazy maps.
These crazy maps are popping up again. Whether they want to couch it as being political expediency or protecting the House Majority leader or the Speaker of the House’s district or someone else who votes 100% of the time with Trump, whatever the pretext may be, if left to our own devices, we’re going to see more of what happened in Louisiana and led to the Callais case and what happened in Texas. On the other end, looking at it from the other side of the political spectrum, if you’re a Republican, what they’re doing in California right now.
We don’t know what will happen in California. From what I understand, 52% of that state is going to support having additional Democrats.
I’ll say this. Everyone will probably disagree with me, or almost everyone will disagree with me. The point I’m trying to make, but I’m being very blunt and not fitting into a small hole, is that this cuts both ways. It can be used against you if you’re a Republican. It can be used against you if you’re a Democrat. This really is an issue that cuts both ways.
Another thing that I don’t think they realize is that historically, when people do this kind of mapping, they are surprised about how Republicans and Democrats decide they don’t like what’s going on, and they vote together and they vote someone out of office. You could have a Republican being voted out of office because Republicans and Democrats get together and say, “This crazy map system is ridiculous. I want to support a democracy and I’m going to vote for the Democrat because I’m not voting for the Republican that’s in the House of Representatives right now.”
That could be true in California if people are really upset about it, because I know Schwarzenegger was the one who got a commission that designed their maps in California, that I think are equal. I want to tell you something. I know we can go on and on with this, but I know that my readers probably have read all we can provide them.
I will tell you something. I think what we’ve done is an outstanding job of trying to deal with a very difficult subject. Personally, I am praying that Kavanaugh or that Roberts have the sense to know that we have to have Section 2, the Voting Rights Act, and that we have an understanding of the protection in the 14th Amendment, and they do not interfere with each other. That’s what I’d like to see.
Let’s see what happens.
I’m going to end this and say, Richard, I love having these episodes with you, and I want to thank you for all I’m learning, and I hope our readers will appreciate what we’re doing. We did have some excellent ratings on the previous one we did, so I look forward to seeing what else happens.
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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.