Transcript [00:03] Hello everyone and welcome to Fed Soc [00:06] Forums. Today, September 24th, 2026, we [00:10] are delighted to host a conversation [00:12] titled Downstream Effects of Louisiana [00:14] versus Cale, Race Redistricting and [00:17] Representation. [00:19] My name is Lily Schneider and I am a [00:21] third-year law student at the University [00:23] of Michigan. [00:24] I also serve as a student liaison to the [00:27] Federalist Society's Civil Rights [00:29] Practice Group. [00:30] As always, please note today that today [00:32] all expression of opinions are those of [00:35] the experts on the call. As the [00:37] Federalist Society takes no position on [00:39] particular legal or public policy [00:41] issues. [00:43] Today we are fortunate to have Michael [00:45] A. Carvin and Professor Jeffrey M. Weiss [00:48] as our panelists. [00:49] In his 35 years at the Justice [00:51] Department and in private practice as a [00:53] partner at Jones Day, Mr. Carvin was one [00:56] of the leading appellate and trial [00:58] lawyers challenging state and federal [01:00] regulations on constitutional and [01:03] statutory grounds. With 10 Supreme Court [01:06] arguments and numerous high-profile [01:08] victories. [01:09] In addition to his numerous cases at the [01:11] United States Supreme Court, he argued [01:14] in virtually every federal appeals [01:16] court. [01:17] His major cases include the recent [01:19] constitutional challenge to the [01:21] Affordable Care Act and the decisions [01:24] invalidating Sarbanes-Oxley's accounting [01:26] board, preventing the Justice Department [01:29] from obtaining monetary relief against [01:31] the tobacco industry under RICO, [01:34] overturning the federal government's [01:35] plan to statistically adjust the census, [01:38] limiting the Justice Department's [01:40] ability to create majority-minority [01:42] districts, and upholding Proposition [01:44] 209's ban on racial preferences in [01:47] California. [01:49] Professor Weiss is a distinguished [01:51] adjunct professor and senior fellow at [01:53] New York Law School, where he directs [01:55] the New York elections, census, and [01:58] redistricting institute, and teaches [02:00] classes on redistricting, election law, [02:03] and the census. [02:04] He is now working on his sixth [02:06] redistricting cycle. In past years, he [02:09] served as a redistricting counsel to New [02:11] York state legislative leaders, and as [02:14] counsel to three New York City [02:16] Districting Commissions, and to numerous [02:18] counties and localities across New York [02:20] and the nation. [02:22] We are pleased to have the honorable [02:24] Linda Chavez as our moderator. Ms. [02:27] Chavez is chairman of the Equal Center [02:29] for Equal [02:30] Opportunity. She has published opinions [02:32] and columns in newspapers across the [02:34] country, and appears regularly on cable [02:37] news. Ms. Chavez is the author of three [02:40] books: Out of the Barrio: Towards a New [02:42] Politics of Hispanic Assimilation, An [02:45] Unlikely Conservative: The [02:47] Transformation of an Ex-Liberal, and [02:49] Betrayal: How Union Bosses Shake Down [02:52] Their Members and Corrupt American [02:53] Politics. She has been honored by the [02:56] Library of Congress as a Living Legend, [02:58] and as nominee for Secretary of Labor by [03:01] President George W. Bush. [03:03] One note for our audience before we we [03:05] begin. If you have any questions [03:07] throughout the webinar that pertain to [03:09] the topic at hand, please submit them [03:11] through the Zoom's Q&A feature located [03:14] at the bottom of your screen, not the [03:16] chat, so that we'll be able to access [03:18] them later in the program. On that note, [03:20] I will turn things over to our speakers [03:22] to start the conversation. Ms. Chavez, [03:24] thank you so much for joining us and for [03:26] moderating today's discussion. [03:28] >> Thank you, and it's an absolute pleasure [03:30] to be first with Michael Carvin, who is [03:34] a veteran, uh, along with me of the [03:36] Reagan administration, and he's been an [03:39] ally and colleague, uh, for many years. [03:42] And so, it's a pleasure to have him here [03:44] to talk about this important subject. [03:46] And also to Professor Weiss, whom I just [03:50] learned our careers actually crossed [03:52] paths uh, in the 1970s when he was [03:55] working for Senator Ted Kennedy and I [03:58] was working for, this may come as a [04:00] surprise for some people, [04:02] Peter Rodino and Emanuel Celler in the [04:04] Judiciary Committee. First of all, I I [04:07] want to say begin this conversation by [04:10] saying that I think most people in the [04:14] civil rights area regard the Voting [04:16] Rights Act as perhaps the most important [04:19] civil rights law ever passed. But it was [04:22] also a very radical act even in 1965 [04:26] when passed. [04:28] We now have the Kolodny decision along [04:30] with Brnovich and others that have been [04:32] handed down over the years which I [04:35] really think go beyond the [04:38] subject of voting and really get to the [04:41] question of how do you define racial [04:44] discrimination? And so the discussion [04:46] today is going to be about the [04:48] downstream effects of the Kolodny [04:51] decision. And I think that [04:56] the we're going to try and stay away [04:58] from some of the minutia [05:01] of the Voting Rights Act, although I [05:02] will begin my first question to Michael [05:04] Carvin with a little bit of minutia. And [05:07] that has to do with Section 2 of the [05:10] Act. Soon after the Act was passed in [05:13] 1965, the Department of Justice decided [05:17] to extend the way in which they [05:21] interpreted the jurisdiction of the Act [05:23] to not only allow that for [05:28] blacks to have access to the polls and [05:30] it was primarily blacks who were [05:33] who were envisioned by this act, but [05:35] also to ensure that the votes already [05:40] cast were not diluted. DOJ blocked [05:45] at-large elections, it required the [05:47] districts redrawn in such a way as to [05:49] create safe districts to elect minority [05:51] candidates. And I want, if you can, [05:54] Mike, just a very briefly, try and do it [05:57] in under 5 minutes, walk us through how [06:00] the 1982 [06:02] amendments to Section 2 led to an [06:05] outcomes-based standard. And from there, [06:09] how we got to Gingles. [06:12] >> Um sure, I'm happy to. Um in 1982, [06:16] Congress was concerned with a recent [06:17] decision by the Supreme Court, Mobile v. [06:20] Bolden, [06:21] which said that you needed to show [06:22] intentional discrimination to violate [06:24] Section 2. This was a challenge to an [06:27] at-large uh district which diluted black [06:30] votes. [06:31] Um [06:32] what they wanted to do was create a [06:34] system where [06:35] uh any kind of outcome that blacks [06:39] didn't achieve would be violative of the [06:41] law, but they couldn't say that [06:44] directly. So, what they did, frankly, [06:46] was engage in a bit of subterfuge. [06:49] They have this language from the Act, [06:51] which has been studiously ignored until [06:53] Brnovich and Gingles, [06:55] and said, "Look at the Senate Report." [06:58] And the Senate Report listed like nine [07:00] factors, all of which reflected racial [07:03] inequalities. And they said, "If you [07:05] can, under the totality of [07:06] circumstances, tick those off, [07:09] um then you'll win." Of course, nothing [07:11] like that's in the statutory language. [07:14] This was pointed out to Justice Brennan [07:16] when he wrote the Gingles decision in [07:17] 1986, and he said, "No, we'll just do [07:20] the Senate Report." [07:22] Justice Brennan then invented his own [07:24] test, not even found in the legislative [07:26] history, called the Gingles [07:28] preconditions, which essentially said, [07:31] "If you could create even a marginally [07:33] compact black district, [07:36] and blacks um I'm using blacks as a [07:39] shorthand for all minorities. And if [07:41] blacks are losing, then you have to [07:43] create that district. And this went [07:46] largely unimpeded until we saw Kael A. [07:51] And And they returned, for the first [07:54] time since after the Brnovich decision, [07:56] they said, "Well, let's look at the [07:58] actual statutory language." [08:00] And what the statutory language says is [08:03] blacks are entitled to a system that is [08:05] equally open to them, where they don't [08:08] have less opportunity than other groups. [08:11] So, it's not a standard with grants them [08:12] preferential treatment, and certainly [08:14] not a standard that guarantees them any [08:16] kind of electoral result. It just [08:19] provides an equal opportunity. And that [08:21] was the linchpin of the Kael decision. [08:24] They said, "Well, how do we know if if [08:26] minorities have been treated worse than [08:28] other groups, have less opportunity?" [08:30] Well, what you do is look at traditional [08:32] districting principles that govern all [08:34] the districts. And you ask yourself, has [08:37] the minority district been disadvantaged [08:40] with respect to those? And crucially, it [08:42] said, "One of the things that [08:44] legislators typically look at is [08:47] protecting incumbents and otherwise [08:49] being partisan, helping the dominant [08:52] party." [08:53] And in Louisiana, [08:55] for example, they wanted to create the [08:56] second black majority district, but it [08:59] came at the expense of a Republican [09:01] incumbent. So, they would have had to He [09:03] would have had to lose his seat. [09:05] Well, the Supreme Court quite sensibly [09:07] said, "Look, no other group would the [09:10] Republicans sacrifice one of their own [09:12] and throw an incumbent out. So, the [09:14] notion of that they didn't do it for the [09:17] black voters hardly suggests less [09:19] opportunity." [09:20] The other important part of Kael, and [09:22] then I'll shut up, is not only did they [09:24] say that was based on the statutory [09:26] language, they said it was based on the [09:28] fact that this is enforcing the 15th [09:31] Amendment. And the 15th Amendment only [09:33] prohibits intentional discrimination. [09:36] So, Section 2 can't get at anything [09:39] that's a pure results test or outcome [09:41] oriented. They've it's got to have a [09:44] strong inference of intentional [09:46] discrimination. [09:47] In other words, they can go a little bit [09:50] beyond the 15th Amendment under the [09:51] enforcement power, but they have to have [09:54] to be uh enforcing what's in the 15th [09:57] Amendment, not a results-oriented [09:59] effects test when the 15th Amendment is [10:02] itself a uh intent test. So, under two [10:05] different ways of looking at it, did the [10:08] did the legislature depart from [10:09] traditional districting principles in a [10:12] different way for this district you're [10:14] complaining about? And if they did, [10:17] there'd usually be a strong inference [10:18] that that was met motivated by race. So, [10:21] either way, the standard now is [10:24] have um [10:26] black concentrations or minority [10:28] concentrations [10:30] been treated equally relative to others [10:32] in the polity, where for 40 years the [10:35] law had been they needed to be treated [10:36] better, and if you could create a [10:38] district, you had to do it. So, this is [10:40] a very important change in voting rights [10:42] law. [10:44] >> So, Jeff, uh Justice Kagan, who wrote [10:46] the dissent in the Calera decision, [10:49] argued that challengers now need to [10:51] prove not only vote [10:53] uh dilution, but also a race-based [10:56] motive, and she said that this was going [10:58] to be nearly impossible. In concrete [11:00] terms, can you tell us what a plaintiff [11:03] had to do had to do before Calera and [11:05] what they must now do? [11:08] >> Uh sure. It's a pleasure uh being with [11:10] all of you today. It's good to see Mike [11:12] Carvin again. He and I worked together [11:14] on different sides uh back in the 19 [11:17] 1990s. [11:19] Uh so, we're we're still around. Uh but [11:22] Justice Kagan, uh [11:23] joined by Justices Sotomayor and [11:26] Jackson, did uh dissent in Calera, uh [11:29] arguing that the uh the court uh was [11:32] transforming section two of the Voting [11:34] Rights Act from an effects test effects [11:38] based protection against racial vote [11:40] dilution into something approaching a [11:43] intent-based prohibition on intentional [11:46] discrimination. Her objection goes down [11:50] to [11:52] the argument that Congress, that not not [11:54] the Supreme Court, made a policy [11:56] judgment in 1982 when the Voting Rights [11:59] Act was amended that discriminatory [12:02] effects, rather than discriminatory [12:04] intent, should determine section two [12:07] liability. Justice Kagan contends that [12:11] the majority effectively overruled [12:13] Congress's choice, weakening the [12:15] Thornburg versus Jingles uh [12:18] criteria and made section two [12:20] dramatically harder to enforce um [12:23] given the circumstances under which [12:25] Congress created section two. [12:28] She argues that Kelle basically [12:30] essentially retained the Jingles [12:33] framework where you have to show three [12:35] things from the Jingles case. You've got [12:37] to show first that a minority community [12:39] is is large enough by population, 50% [12:44] plus minority voting age population. [12:46] Second, that those voters vote [12:48] cohesively, that their voting patterns [12:50] are similar. And third, that there's a [12:52] significantly high level of racially [12:54] polarized voting. And if you meet those [12:58] three factors, then you throw in the [13:00] totality test that Mike talked about [13:03] that came out of the Senate Judiciary [13:04] Committee factors and you can prove you [13:07] can [13:08] move your case forward. The Kelle [13:10] decision retained the basic Jingles [13:13] framework but substantially modified it [13:15] so that a section two plaintiff must [13:18] show a strong inference of intentional [13:21] racial discrimination. They have to [13:23] disentangle race from partisan and other [13:26] neutral considerations [13:27] and you have to find [13:29] that the states [13:31] legitimate uh [13:34] criteria [13:35] including compact disc [13:37] incumbency protection [13:40] contiguity all the states [13:43] uh criteria are also met. Uh her [13:47] objection is that although the majority [13:49] insists that it isn't an expressed [13:51] intent requirement the new structure [13:54] effectively makes [13:55] a race-based purpose [13:59] an argument in in most cases now. Uh [14:02] the most useful way to understand [14:04] Justice Kagan's objection is that the [14:06] pre-K lay section two vote dilution [14:09] cases were principally in effects [14:11] situation. Now after Kelle the court has [14:14] added a substantive purpose inquiry [14:17] which brings us back to the pre-1982 [14:20] congressional amendments standard from [14:22] the Mobile versus Bolden case. [14:25] Uh so in concrete terms the basic [14:27] differences are that before Kelle you [14:30] had to show that a minority group was [14:32] sufficiently large and geographically [14:34] compact to constitute a majority of a [14:38] voting age population in a district. [14:41] That would still be required but now you [14:42] have to do much more [14:44] to also satisfy the states other [14:47] criteria. Whereas you had to show [14:49] political cohesion that's still a [14:51] requirement but now there's a new [14:53] wrinkle plaintiffs have to demonstrate [14:55] that the relevant voting patterns [14:57] persist after controlling for party [14:59] affiliation that [15:02] do the same basic inquiry but you have [15:04] to show that racial divergence can't be [15:08] adequately explained by partisan [15:10] affiliation alone. [15:12] You've got to show the totality of the [15:14] circumstances test but now the totality [15:17] test must focus on present day [15:20] intentional racial discrimination that [15:22] all discrimination and present [15:24] disparities attributable to the [15:26] continuing effects of discrimination [15:29] receive substantially less weight. And [15:33] again, there's no need to [15:34] to prove discriminatory intent. You've [15:37] got to show that there's strong [15:39] inference that the state intentionally [15:41] drew districts to give minority voters [15:43] an opportunity [15:45] uh [15:45] to elect. So, put very simply, the [15:48] standard changes that you're creating a [15:51] an intent test, [15:53] really looking for a smoking gun, which [15:55] is really very hard to do. So, they're [15:58] basically saying that this got section [16:00] two of the Voting Rights Act effective [16:01] in [16:02] the way it's been working for the last [16:04] 40 some odd years. [16:06] >> You know, Mike, as I read the Calay [16:09] decision, I found some irony involved in [16:13] terms of the uh [16:15] racial block voting versus party block [16:18] voting argument with the GOP now [16:22] on the side [16:24] not favoring racial block voting. I'm [16:28] sure you remember that in the late '80s, [16:30] early '90s, in particular, [16:33] the Republican National Committee and [16:35] and even the General Counsel for the [16:38] RNC, [16:39] I believe argued in favor, along with [16:42] the NAACP, [16:45] of these so-called minority safe [16:47] districts [16:49] with the [16:51] I guess understanding that race and [16:54] party, at least with respect to black [16:56] voters, are almost [16:58] synonymous. That, [17:00] you know, at various times, as, you [17:02] know, much as 85% of black voters vote [17:05] Democratic. [17:06] It's much less true of Hispanics, but if [17:09] you create safe black districts, what [17:13] happens is that you get surrounding [17:16] districts that [17:18] are whiter and more Republican. So, [17:22] I guess [17:24] if you could just speak for a moment [17:26] about that, [17:28] why suddenly the shift in the party on [17:31] on this position [17:34] and you know, does this have to do with [17:38] the success of of the Republican Party [17:40] in terms of having created these uh [17:44] majority white districts in areas that [17:48] are much more safely GOP? [17:51] >> There's always been [17:54] and I I actively participated in this, [17:56] so I can say a very cynical effort, [17:58] although [17:59] by the Republicans to use the Voting [18:01] Rights Act for political advantage and [18:04] for the reasons you just articulated [18:06] Linda [18:07] if you used to be two 30% say black [18:11] districts, both of which would elect a [18:13] white Democrat if you put those [18:15] together, then you've got a 60% black [18:18] district and the adjacent district is [18:20] wide open for Republicans. In fact I [18:23] think by 1996, [18:25] I don't think there was a white Democrat [18:27] in Congress who was only they were only [18:29] being elected from the majority minority [18:31] districts. So, it had a huge political [18:34] advantage for the Republicans, which I'm [18:36] not going to deny which makes my stand [18:39] all the more principled that I don't [18:40] think you should do it even though it [18:42] helps my party and in in terms of racial [18:46] block voting [18:49] you've always never made any sense to [18:51] initial decision. [18:53] Even it was recognized in Jingles [18:55] Brennan said, look, if there's a [18:56] different election result, if only [18:59] blacks were voting then if whites were [19:01] voting, you've got racial block voting [19:03] well, we all know that 90 plus percent [19:05] of blacks vote Democratic and you know, [19:09] almost all white communities are 50/50 [19:11] or 60/40 [19:13] Republican. So, you're always going to [19:15] have this gap. And Justice White, in his [19:18] concurring opinion in Jingle, said, "No, [19:21] that's not the test. The test is the one [19:23] they've now brought back in Calay." The [19:26] test is, are white Democrats doing are [19:29] black Democrats doing worse than white [19:31] Democrats? If it just happens to be a [19:33] 60% Republican district, you can't throw [19:36] that district out because of racial [19:38] block voting. It just reflects the [19:40] normal we want partisanship, colorblind [19:44] partisanship, to decide these elections. [19:46] So, you can't uh condemn it that way. [19:49] Amazingly, [19:50] um [19:51] Brennan didn't get whites' vote in that. [19:53] So, he was only a plurality of racial [19:56] block voting. I've always thought there [19:58] was five votes rejecting that view of [20:00] racial block voting, which is do [20:03] minorities win? Uh but it but amazingly, [20:06] for 40 years, the Supreme Court had 15 [20:10] cases talking about racial block voting [20:12] and never defined what it was until [20:14] Calay. And this will have another [20:16] important effect because I think [20:19] particularly these days, [20:21] uh there's partisan differences, [20:23] obviously, but I think there's very [20:24] little racial differences among the [20:27] electorate. The crossover voting you [20:28] see, what we call crossover voting, uh [20:32] for Obama and Kamala Harris, was no [20:36] different than really any other [20:37] Democratic nominee. I can walk through [20:40] state elections where that is equally [20:42] true. So, this notion of a monolithic [20:45] white [20:46] voting block defeating black-supported [20:48] or black candidates is no longer true. [20:51] And in any event, you shouldn't have a [20:54] test that says [20:56] voting Republican is violative of the [20:58] Voting Rights Act because that's what [21:00] the old [21:01] regime did. [21:03] >> So, Jeff, um Justice Jackson uh and [21:06] other critics of the decision warned [21:08] that there would be utter chaos that [21:11] would ensue in the wake of this [21:13] decision. [21:15] With the midterms literally just weeks [21:17] away, what are you seeing in states and [21:20] what do you expect will happen with [21:23] respect to the Voting Rights Act and [21:25] this [21:26] and this decision before 19 before 2028? [21:30] >> Yeah, the the word chaos scares people [21:33] especially given the closeness of the [21:35] elections and with what's happening [21:37] uh [21:38] with the mail-in voting with the [21:40] Missouri redistricting that it's [21:42] uh I I I hate to use the word but [21:43] there's an awful lot going on that could [21:45] lead to some chaos. [21:47] Uh this is not really hypothetical. [21:49] Since the decision came down in Calay in [21:52] late April, courts have had to revisit [21:55] existing cases and states have been [21:58] testing the boundaries of the new [22:00] standard. The Supreme Court itself has [22:02] already vacated and remanded several [22:04] cases for consideration. Since Calay [22:08] we've seen redistricting in states from [22:11] Texas, Missouri, North Carolina, Ohio, [22:13] Florida, Tennessee, Louisiana, [22:15] California. [22:16] Voters in Maryland will be taking up a [22:18] constitutional amendment question to [22:20] redraw the map there just to eliminate [22:22] one Republican district in November. [22:24] And there's litigation continuing in [22:26] many of these states. We just have to [22:28] look at Missouri for the clearest [22:30] example of the kind of [22:32] confusion that we're seeing. [22:34] The state is fighting over over whether [22:36] to use a new congressional map enacted [22:39] in 2025 or to use the map enacted in [22:42] 2022 in November. We're seeing a fight [22:45] between the federal courts and the state [22:47] courts over different doctrines as to [22:49] which map to use. While the US Supreme [22:52] Court has stayed use of a 2025 map [22:58] using the argument that you You not get [23:01] interfere with elections too close to [23:03] election day. [23:04] Another [23:06] lawsuit was brought just after the [23:08] Supreme Court held that [23:10] where judge federal court judge stayed [23:12] the use of the 2022 map to require the [23:16] use of the 2025 joint map because that [23:19] was the one voters used to vote in the [23:21] primary and in August and that the case [23:25] was put back to the US Supreme Court [23:26] where [23:28] I think they've got to decide by [23:30] September 28th and literally can happen [23:33] anytime on the shadow docket that we'll [23:35] see whether the Supreme Court is going [23:36] to step in again, but we've got you have [23:39] the state courts holding that [23:42] there was a referendum by the voters [23:44] whether or not to use the redrawn map [23:47] and you have the federal court saying no [23:49] use the 2025 map because of it was [23:52] already used and this is creating I mean [23:55] there's no resolve to it as we speak [23:57] right now. Looking at Alabama the [24:00] Supreme Court in [24:02] 2023 [24:04] upheld using the traditional Thornburg [24:06] versus Jingles criteria [24:08] in Alabama [24:10] challenge that there was a violation of [24:12] the Voting Rights Act and [24:15] that case went through the courts after [24:17] a remand and a second majority black [24:20] district was upheld by the Supreme Court [24:22] only to find that that's now being [24:24] undone. [24:26] So we're seeing really two tracks now. [24:29] We see it challenges to maps drawn after [24:32] Calais and challenges to older maps that [24:34] courts have to reconsider because of [24:37] Calais. So I think we're really going to [24:39] see what goes on next depending on the [24:42] outcome of this November's elections. [24:44] Will the Democrats or Republicans have a [24:46] how many seat majority in Congress? [24:49] If the Democrats win control and if if [24:52] it's just by two three four seats, [24:54] they've got a further challenge. The [24:55] 2030 census will likely shift uh [24:58] population from blue states to red [25:00] states. So, there might be more of an [25:03] impetus to mid-decade [25:05] redistrict again before 2028 to make up [25:09] the deficit they might suffer given the [25:11] projected congressional losses they're [25:13] going to, you know, uh [25:15] see after 2030. Uh the if the [25:18] Republicans can maintain control of the [25:21] house, uh then we're going to see the [25:22] Democrats even ramping up the fight even [25:24] further to try to win more in 2028. And [25:27] we're looking at fights in states over [25:30] literally one district. When you look at [25:33] Missouri, it's over one district. In uh [25:36] in um [25:37] uh Maryland, it would be over one [25:40] district. Uh while in New York, the [25:42] Democrats could have an opportunity of [25:44] picking up uh three or four districts. [25:47] That will be a major um [25:49] advantage for the Democrats, but they've [25:51] got to go through a constitutional [25:52] amendment process where a poll showed [25:55] back in June that about 40% of the [25:57] state's voters opposed uh mid-decade [26:00] districting. Uh and and if the Democrats [26:04] do take over the house, I think you're [26:06] going to see a lot of action at least in [26:08] the House of Representatives to revisit [26:10] the Voting Rights Act and to go back to [26:12] the [26:13] uh standards [26:15] you know, from the 1982 amendments which [26:17] required the use of the effects test. [26:20] And if the Democrats win the White [26:21] House, the Senate, and the House after [26:24] 2028, then I think you'll see much more [26:27] action including uh a likely ban on [26:30] partisan gerrymandering for at the [26:33] congressional level. Uh you'll see [26:35] efforts to uh enact a, you know, Voting [26:38] Rights Act number two to go back to the [26:40] standards to the extent they can get [26:42] around Kelle uh so a lot depends on this [26:46] November's election. A lot depends on [26:48] what might happen in the Democratic [26:50] House next year. And an awful lot more [26:52] depends on who wins uh if this a [26:54] Democratic trifecta in [26:57] 2028 and if the Republicans retain [27:00] either the House, the Senate or the [27:02] White House, then all bets are off on [27:04] anything impacting 2030 or I think the [27:06] Republicans would have a step up because [27:08] of just the numbers speaking for [27:10] themselves in the upcoming census. [27:13] >> Mike, I want to turn to you sort of as a [27:15] follow-up to that because obviously [27:18] elections have consequences and you [27:20] might see an attempt to change policies. [27:23] Certainly the re-election of Donald [27:25] Trump had consequences in this [27:29] area. You know, we did have the Supreme [27:31] Court decision handed down in Students [27:33] for Fair Admissions which essentially [27:36] said racial preferences in college [27:38] admissions at least are [27:40] unconstitutional. [27:42] You suggested that [27:45] the Colay decision the Voting Rights Act [27:47] that in effect standard that basically [27:50] is going to [27:53] give racial preference in the terms of [27:56] the drawing of district lines might also [28:00] be unconstitutional. [28:03] I'm not sure and maybe you can [28:05] elucidate whether the Colay decision [28:08] itself went that far [28:10] but there you know, there are [28:12] implications in other areas as well. We [28:14] have the office of legislative counsel [28:17] which is taken [28:20] on the whole concept of disparate impact [28:22] theory and employment law and other [28:24] areas [28:25] and so we really does come down to a [28:27] debate again about what racial [28:31] discrimination means. Does it have to be [28:34] intentional? [28:35] Does it have to be explicitly race-based [28:40] and [28:41] or even if Jeff's preferred outcomes [28:45] come true in terms of an election, uh [28:48] could Congress just simply rewrite the [28:50] Voting Rights Act and put something into [28:52] effect that would um basically negate [28:55] Kolai? So, what is the solution in this [28:57] area? [28:59] >> I I don't think they can restore the old [29:01] regime pre-Kolai for two reasons, both [29:04] constitutional. [29:06] Again, Kolai was very explicit that [29:09] Congress's only power to affect voting [29:11] in the racial area is the 15th [29:13] Amendment. And if you're going to [29:15] enforce an amendment that only prohibits [29:17] intentional discrimination, you can't go [29:20] to this entirely different regime which [29:23] requires preferential treatment and and [29:26] quotas. So, it would exceed their [29:28] enforcement power. Now, wholly apart [29:30] from that, for example, in the Title VII [29:32] context where they might have some [29:34] ability to impose an effects test, [29:38] that would violate, in my view, the 14th [29:41] Amendment. Quite clearly, right? What An [29:43] effects test is just a fancy name for a [29:46] quota. [29:47] A quota says, you need to hire or [29:49] promote consistent with the percentage [29:52] in the um local community, right? You [29:55] must hire 25%. [29:57] An effects test says, if you don't hire [30:00] 25%, that has a discriminatory effect. [30:03] It's the same thing. So, obviously, an [30:06] effects test that requires you uh [30:09] to [30:10] engage in this sort of proportional [30:12] representation through quite clearly [30:15] racial preferences, I think it's quite [30:18] unconstitutional not only under the Shaw [30:20] cases, but the non-voting cases you [30:22] mentioned that prohibit uh racial [30:25] favoritism um [30:27] to non-minorities. So, I I think [30:29] Congress is in a constitutional box. I [30:32] think they'll want to um and it'll be [30:35] interesting because [30:37] as I say, as we alluded to before, the [30:39] partisan results of Kolai are not at all [30:42] clear to me because again majority [30:45] minority districts used to benefit [30:47] Republicans. I think in a lot of [30:49] jurisdictions they still do. So we'll [30:51] see really how intent they are at [30:54] resurrecting the majority minority [30:56] districts. From a political perspective [30:58] Democrats want 35% minority districts [31:02] cuz then you don't waste any votes and [31:04] you elect Democrats. They don't want 50% [31:07] majority minority districts. [31:10] >> Uh Jeff, I want to go back to you and [31:12] ask you the question um again sort of uh [31:15] taking a look at what the results of [31:17] this uh [31:19] decision going to be. What if it turns [31:21] out uh that even under the Kelleher [31:25] standards, we don't see a diminution in [31:29] the number of black elected officials. [31:31] Um [31:32] uh you know, certainly when uh [31:35] Proposition 209 was passed in the state [31:38] of California, uh which was basically [31:41] outlawing racial preferences in college [31:44] admissions. Uh yes, there was a drop in [31:47] attendance of of blacks and Latinos at [31:50] some of the flagship schools like [31:51] Berkeley and UCLA, [31:53] but in fact there was an expansion of [31:56] those students not just attending the [31:58] schools but graduating from them um at [32:01] less competitive institutions in the [32:04] university uh in the California system. [32:07] So what happens um if the sky doesn't [32:10] fall and you don't see a drop, will uh [32:13] there finally be a uh concession that [32:17] you know, maybe this effects standard is [32:19] not all that it's cracked up to be and [32:21] and uh things are not as bad as we [32:24] thought in terms of uh efforts to uh [32:28] dilute uh the black vote? [32:31] >> I think I'll have a better uh answer for [32:33] you after the November elections to see, [32:35] but what we are witnessing are efforts [32:37] by the current black office holders in [32:40] Congress running in the districts that [32:42] were redrawn, especially uh uh North [32:45] Carolina, I think it's the first [32:47] district where the district was redrawn. [32:49] That that that eastern North Carolina [32:51] has been a traditionally uh Democratic [32:53] stronghold electing uh black [32:56] representatives to Congress, you know, [32:58] for for quite a while. The district was [33:00] redrawn and the um the black incumbent [33:03] is running to win that district in a now [33:05] majority white district. Uh so, and we [33:09] we've seen in in Memphis the uh district [33:11] that was redrawn there in Tennessee had [33:13] a white representative in the black [33:15] district. So, we and not all minority [33:17] districts are represented by minority [33:20] office holders and there are some white [33:22] majority districts that have uh black [33:24] elected officials or Hispanic elected [33:26] officials. So, there's no real [33:28] one-size-fits-all. [33:29] Ideally, we'd like to see a color-blind [33:31] society, uh but uh [33:34] it really it's a two-sided issue here. [33:37] In some instances, you do have high [33:38] levels of racially polarized voting [33:41] where it's uh almost impossible uh for a [33:45] minority-preferred candidate to win. In [33:48] other places, you have um [33:50] communities electing minority-preferred [33:52] candidates where they don't control the [33:53] vote. Uh so, it's really uh a situation [33:57] where uh I you know, I like to think [33:59] back to um the Shelby County versus [34:02] Holder decision from 2013 that [34:04] eliminated the trigger for Section 5 of [34:06] the Voting Rights Act. For Justice Chief [34:08] Justice Roberts, wrote a [34:10] uh a much different uh picture of what [34:13] the country looked like uh than uh [34:15] Justice Ginsburg did in her dissent. Uh [34:19] you know, just Chief Justice Roberts [34:20] talked about how America has changed [34:23] dramatically since 1965. This decision [34:26] came down in 2013 and that we've seen [34:29] many, many more uh black and Hispanic uh [34:33] uh [34:34] candidates, you know, running for and [34:36] winning uh election, then we had uh [34:39] Justice uh Ginsburg talking about uh not [34:42] throwing away your umbrella while it's [34:44] still raining if you're not getting wet. [34:47] Uh so, you know, yeah, this really it [34:49] really differs district to district, [34:51] state to state, but uh [34:54] suffice it to say that there are still [34:55] instances where it's going to be very [34:58] hard for a minority-preferred candidate [35:00] to win, and we'll have to just see what [35:03] uh the Congress looks like next year to [35:05] have a better conclusion on that. [35:07] >> I noticed you used the term, Jeff, [35:09] minority-preferred candidate. Does that [35:11] minority-preferred candidate have to be [35:14] a member of the same minority? Uh [35:16] >> No, it's [35:17] I'll be very clear on that. It's Thank [35:19] you for asking cuz I'm very careful as [35:21] to how I put it. Uh the law does not [35:23] require a minority candidate to run in [35:28] and win in a minority district. Uh that [35:32] uh [35:33] the Voting Rights Act applies to the [35:35] voters, not to the candidates. This was [35:38] actually litigated back in New York in [35:41] the in the 1980s when um a um a white [35:45] city council member was redistricted out [35:47] of her district because she wasn't [35:49] black, and she went to court and won her [35:51] challenge saying that she need not be [35:53] black to win a district, and she did win [35:56] her reelection. This goes back now 40 [35:58] years ago, but it set a standard. [36:01] >> Uh let me throw that to to to you, Mike. [36:05] Um you know, as long as you have at [36:08] least in the black community a quite a [36:10] polarized uh voting pattern, [36:13] um [36:14] that uh does a minority-preferred [36:17] candidate uh [36:19] automatically mean a Democrat? I mean, I [36:22] can think, you know, you have people [36:23] like Byron Donalds running for governor [36:25] in the state of Florida. He's obviously [36:27] black. He's running on on the GOP. Uh Uh [36:30] and Hispanics throw another wrinkle into [36:32] it. I wrote a, you know, a whole book [36:34] about the way in which Hispanics um [36:37] are somewhat different uh in terms of [36:40] their trajectory uh into the American [36:42] mainstream. Um so, what are your [36:45] thoughts on that? [36:47] >> Well, Jeff is entirely right. It's [36:49] absurd to think that you need to elect a [36:51] black candidate for a black district. In [36:54] fact, your old boss, I didn't realize [36:55] you worked for Rodino, he came from a uh [36:58] district of very high uh minority [37:00] population. There have been other [37:02] examples. I think there's one in [37:03] Tennessee now uh where that happens. As [37:06] a general matter, [37:08] voters are just taking much less account [37:11] of race than they did when the Voting [37:13] Rights Act was amended. Again, we can [37:16] look at the national scene and Obama got [37:18] support in all kinds of states, even [37:20] Harris did, who was I thought quite a [37:22] weak candidate. And and we see it all [37:25] over. So, I don't think these [37:26] apocalyptic concerns about diminishing [37:30] minority representation are probably [37:32] going to come true. I think there's a [37:34] couple other practical points, too, [37:35] which is as I've alluded to, I don't [37:38] know that the Republicans will have much [37:39] incentive to systematically dismantle [37:43] major majority minority districts [37:45] because generally they like the status [37:47] quo. They like siphoning off [37:49] non-Republican voters [37:51] into those districts. And let's face it, [37:54] there's a lot of problems with majority [37:56] minority districts. [37:58] If if they are perceived, if you are [38:00] perceived as a quote minority candidate, [38:03] you're probably going to have a tough [38:05] time getting more mainstream wide open [38:07] support. Barack Obama lost a primary to [38:10] run in a predominantly black district [38:13] for [38:14] uh Congress. And it was very helpful to [38:17] him that he lost that primary cuz if [38:19] he'd won, he would have been stuck in, [38:21] you know, what is sort of a legislative [38:23] ghetto of being from a black district [38:26] and being a black representative. [38:28] Whereas, he was forced out of that and [38:30] started making bridges and creating a [38:32] broader coalition. So, even from the [38:35] Democrats' perspective and even from the [38:38] minority Democrats' perspective, uh [38:41] these majority-minority districts have [38:43] always been [38:44] a two-way street, and I think we'll see [38:46] that these sort of uh the sky is falling [38:49] predictions really won't bear out. [38:52] >> Uh okay, I before uh I want I want to uh [38:56] open up the uh Q&A from the audience, [39:00] and we have uh [39:02] several that have been submitted, and [39:04] anyone else who wants to ask a question, [39:06] get it in there in the Q&A box. Um but, [39:09] I'm going to It doesn't say which of you [39:12] uh they want to answer the question, so [39:14] I'll let you both have a chance at it, [39:16] but uh one question uh came from Andy [39:20] Jackson, who said, "Much has been made [39:23] of the impact of Kelle in the South, but [39:26] how about states like Minnesota that [39:28] specifically use racial data to draw [39:31] districts?" [39:33] Want to Yeah, go ahead. [39:35] >> Oh, sorry. [39:36] >> Go ahead, Mike. [39:37] >> No, they were amazingly blatant about [39:39] it, how racially driven these districts [39:42] were. Um then, we had the Shaw cases, as [39:45] you know, where if race was your [39:47] predominant purpose, they could strike [39:49] down the district. [39:50] So, just to show you what an incredibly [39:53] incompetent lawyer I was, I told all my [39:55] clients when we were in New York with [39:58] Jeff in the '90s, "Draw whatever [40:00] majority-minority districts you want. [40:02] There's a case out there, they can be [40:03] real ugly." Well, then Shaw comes along [40:06] and says, "No, uh you can't have race as [40:09] your predominant purpose." I would not [40:11] put any of the drafters of those plans [40:13] on the stand to perjure themselves and [40:16] say race wasn't the predominant purpose [40:19] in these districts because it inevitably [40:22] was. [40:24] So, I think even before Kael [40:26] those kinds of explicitly racially drawn [40:28] districts would have been struck out [40:31] under the Shaw [40:32] uh uh [40:34] And now Kael will add even extra force [40:37] to those cases. [40:39] >> You want to weigh in on this, Jeff? [40:41] >> Yeah, I mean states [40:43] redistricters have been faced with a [40:45] really tough test for a long time now. [40:48] How do you achieve compliance with the [40:50] Voting Rights Act where you have [40:54] direct examples, clear as day examples [40:57] of racial vote dilution and remedying [41:01] those situations by drawing new [41:03] districts versus then drawing those [41:07] districts and then not violating the [41:09] 14th Amendment's ban and bar against [41:12] racial gerrymandering. It's it's the [41:14] biggest question I've been asked is one [41:16] of the hardest to answer. And my answer [41:18] has generally been that [41:21] to determine a Voting Rights Act [41:23] violation, you have to use race. It's as [41:27] as plain as day. And that you should [41:30] determine by having an expert come in [41:32] and do all the algorithmic [41:34] formulas to see [41:37] is there racially polarized voting and [41:39] if there is, what percent of the [41:41] population is needed to elect a minority [41:44] preferred minority candidate. And then [41:46] if you meet those tests to draw a [41:48] district that is reasonably and [41:51] rationally and objectively compact and [41:53] meets other kinds of criteria, but at [41:56] least shows the opportunity demonstrates [41:57] the opportunity to elect a minority [42:00] preferred candidate. If you go beyond [42:03] that threshold, then you're going into [42:05] the world of racial gerrymandering, [42:07] wasting minority votes, and violating [42:09] the Constitution. [42:11] And and the Kael case got us away from [42:13] that because there were other political [42:16] considerations in Louisiana to protect [42:18] incumbents that we won't necessarily get [42:20] into now, but Calais was really the [42:23] wrong case to get decided this year if [42:27] my advice had been followed that you [42:29] determine how far you have to go to [42:31] comply [42:33] at a threshold level, minimum level with [42:36] the Voting Rights Act and not go [42:38] overboard to enter into 14th, 15th [42:41] Amendment [42:42] no no land. [42:44] >> Uh we have a [42:45] >> Can I [42:46] >> Go ahead. Sure. Go ahead, Mike. [42:47] >> I'm going to agree with Jeff, so I want [42:48] to get it. That was the best advice in [42:50] the same dilemma we all had. Section 2 [42:53] saying create these districts, 14th [42:55] Amendment is saying don't create these [42:56] districts, and we all threaded the [42:58] needle the way that Jeff said, but I [43:00] don't think Calai allows you to do that [43:02] anymore. [43:03] You have this bizarre [43:05] notion in the Shaw cases that Section 2 [43:08] provided a compelling government [43:10] interest for race-based redistricting, [43:12] which makes no sense because obviously a [43:14] statute is subordinate to the [43:16] Constitution. So, Section 2 can't [43:18] override the 14th Amendment, and Calai [43:21] dealt with this issue directly, and it [43:23] said, "Well, when we said that, we just [43:25] meant a Section 2 that was consistent [43:27] with the Constitution, not one that goes [43:29] beyond the Constitution." And that gave [43:31] them the opening to talk about why [43:34] Section 2 properly interpreted is the [43:36] same or roughly the same as the 15th [43:39] Amendment. So, I don't think you'll have [43:41] any Section 2 justification anymore [43:43] because Calai is clear you don't have to [43:46] create these districts, so they've [43:48] eliminated that pressure on you to [43:50] create these districts. Plus which [43:52] they've made clear even if you [43:54] misinterpret Section 2, uh it's not [43:56] going to be an excuse under the 14th [43:58] Amendment challenge to the race-based [44:00] district. [44:01] Again, I think the practicalities of [44:04] these might dictate a lot of this. I [44:07] don't know that there's going to be a [44:08] lot. I don't think they're going to [44:10] create new majority-minority districts [44:12] under Calloway. But I don't know that [44:14] they're going to go back and revisit it. [44:16] Uh [44:17] black and Hispanic incumbents have a lot [44:19] of power. You don't want to needlessly [44:21] alienate their constituencies. [44:24] And generally Republicans in most of [44:26] these states are pretty happy with the [44:28] results of the map. So as Jeff mentioned [44:31] earlier, you might be talking about one [44:33] or two districts, but you're not talking [44:34] about sort of a wholesale revision of a [44:37] plan. [44:39] >> Uh I've got a very long question and a [44:41] very detailed one, which I'm going to uh [44:44] read um that was submitted by uh one of [44:47] our attendees, an anonymous uh attendee. [44:51] Can you focus on the majority's [44:53] requirement that plaintiffs must [44:56] simultaneously [44:58] A, meet the burden of demonstrating that [45:01] a map could include an additional [45:03] performing minority district, and B, [45:08] create that demonstrative map without [45:11] considering race the same way that a [45:14] state would. And does that make any [45:16] sense when 14A's restriction prevents [45:19] governments from considering race and [45:22] plaintiffs are not are notoriously not [45:25] states. How could the plaintiff ever [45:27] prove the possibility of doing something [45:30] they cannot consider? [45:33] >> I Yeah, I I think you may be overly [45:35] literalistic in his interpretation. The [45:38] key point is plaintiffs are not states. [45:40] So if you have a group motivated [45:42] minority group, they can say, "Look, we [45:44] should have had a district here. And if [45:46] you had applied the same criteria that [45:48] you'd applied to the rest of the state, [45:50] uh you would have created this [45:52] district." That's a very daunting [45:54] standard because legislatures typically [45:57] don't treat minority concentrations [46:00] worse. For 40 years they've been [46:02] treating them much better. So, all [46:05] that's being eliminated from the [46:06] plaintiff's handbook is saying, "Look, [46:08] you can create this district. Sure, it's [46:11] not compact, and sure you have to ignore [46:14] incumbency, and sure it's bad for the [46:16] dominant party, but you need to go ahead [46:18] and do it anyway." Now, they've got to [46:21] come in and say something like, "Here's [46:23] a district that's out there that doesn't [46:26] hurt you politically, that satisfies [46:28] your other traditional districting [46:29] principles." I think that's a very thin [46:32] set because, in all candor, any [46:35] majority-minority districts that could [46:37] have been created after what the Justice [46:39] Department and the courts were forcing [46:41] people to do in the '90s and the '00s [46:44] and the '10s, they're already there. So, [46:47] the notion that there's some new magical [46:49] districts out there, outside of I guess [46:51] Alabama and Louisiana, is not true. I [46:54] mean, I litigated the Alabama case in [46:56] the '90s, and it was the same issue. [46:58] Should we create two or one uh black [47:00] district? So, I I don't I don't think [47:03] there's anything new out there. I think [47:05] plaintiffs [47:06] have a dilemma, but it's not the dilemma [47:09] the question goes to. You can always [47:11] say, [47:12] "This complies with your principles." Um [47:15] if you can come up with that district. I [47:17] think the tough thing is going to be [47:18] coming up with that district. [47:20] >> And you might be able to show that [47:21] there's a district that's currently [47:22] electing minority candidate, him or [47:25] herself, that might be majority white [47:27] that will elect that person for the time [47:29] being, but once that person leaves, the [47:31] district might not be seen as a [47:33] minority-held district. [47:36] Uh you know, it's it's it's a hard thing [47:37] to really focus in on, but it a lot of [47:40] it might be personality-driven, [47:41] situation-driven, [47:44] depending on how the voting patterns are [47:46] in a given state. So much changes state [47:49] to state, year to year now. [47:52] >> Uh we have uh a final question. Uh [47:54] should every state after an election [47:56] create their own redistricting laws [47:58] according accordingly by their own [48:01] census. I'm not quite sure what they [48:03] mean by their own census. I'm assuming [48:05] they mean by the numbers [48:07] in the official census, but that raises [48:10] a bigger question since we're talking [48:11] about downstream effects and since [48:14] clearly there was a imprimatur for being [48:17] able to redistrict on partisan basis [48:20] implied in in this [48:22] decision. [48:25] Are we [48:26] in a better place in terms of our [48:30] the scheme of the the Constitution and [48:32] the way we set up elections to have [48:35] redistricting take place more than once [48:38] every 10 years? At what point does this [48:42] become almost nonsensical [48:45] and comical that we have every you know, [48:48] every election you get a new map. I'll [48:51] let you answer that first, Mike. [48:54] >> Oh, [48:55] I I'm going to echo I think well, Jeff [48:57] walked through all the problems that [48:59] have been created and I think they're [49:00] less of Cal A than I think there is just [49:02] this new found desire to engage in [49:05] mid-decade redistricting. And you have [49:08] and look, I guess Texas was pretty naked [49:10] about it. They they had a partisan [49:12] intent, but then you had bizarre. I [49:14] mean, California is like no, we're going [49:16] to wipe every Republican off the map. [49:19] Illinois is well, we've got two [49:21] Republicans left. We're going to destroy [49:22] them. Maryland's got one. They want to [49:25] go take him out. Um [49:27] Massachusetts has zero. So, when I hear [49:30] about all these Republican gerrymanders, [49:31] I I sort of giggle. New York as Jeff [49:34] points out wants to do it as well. Um [49:37] so [49:39] do I think there's a good reason to do [49:40] it? [49:42] I generally think mid-decade [49:43] redistricting is a bad idea with the [49:45] caveat [49:47] that sometimes the initial redistricting [49:49] gets so involved in all this torturous [49:52] litigation that always accompanies [49:53] redistricting. You really don't have [49:55] things settled till, say, 4 years into [49:58] the decade. But other than that, no. [50:01] I I'm [50:03] you know, I'll I'll argue differently if [50:05] my clients got sued, but no, generally [50:07] there's no good reason to keep doing [50:09] this. And as you've seen this cycle, it [50:12] just leads to retaliation in other [50:14] states. So it has this spiraling effect [50:17] where nobody has any certainty about [50:19] their districts. [50:21] >> And generally, I'll just add in 1964, [50:23] Chief Justice Earl Warren in the [50:25] decision Reynolds versus Sims, which [50:28] first started spelling out [50:30] how you actually draw districts, what [50:32] federal standards are. This is all [50:33] following the 1962 Baker versus Carr [50:36] decision that said these are actually [50:38] justiciable [50:39] challenges to bring to court. [50:42] The Chief Justice said that it's [50:44] reasonable to redraw these district [50:47] lines once every 10 years. And even [50:50] though the the population changes the [50:52] day after the census, this snapshot of [50:55] the population is good enough for a [50:56] decade. And it wasn't until after 2000 [51:00] when the Republicans took over the Texas [51:03] legislature where then majority leader [51:04] Tom DeLay thought, "Let's redraw the [51:07] congressional map because we control [51:08] now, we can win more seats." And that of [51:11] course got litigated. I think it was [51:12] Justice Scalia who opined that there's [51:15] no federal bar to mid-decade [51:17] congressional districting. And that that [51:19] many states took up the [51:21] the challenge [51:23] in the 2000s. [51:25] And state constitutions that indicate [51:27] you can only redistrict once per decade [51:30] shall do it once per decade. [51:32] But then you have Donald Trump calling [51:35] Greg Abbott saying, "I [51:36] get me five more districts." And it's [51:38] all falling apart for nothing more than [51:41] than partisan gain. And Democratic [51:43] states, Republican states alike now, you [51:46] know, have unleashed this this [51:49] war down to the single districts to win [51:52] control. [51:53] And [51:55] you know, Maryland's Democratic leaders [51:56] were opposed. The Senate President was [51:58] opposed to mid-decade districting. He [52:00] thought legally, rationally, sensically, [52:03] the state you know, not to do it. But [52:05] then pressure, writing on the wall, the [52:08] fact state eliminated two seats there [52:10] and two states there that I've got [52:11] nothing left to do but eliminate one [52:13] state here. [52:14] I think by 2028 we'll have eliminated or [52:16] sought to eliminate so many one state [52:19] differences that it will be at 2030. And [52:23] this could all repeat itself over again [52:24] because you know, there's no bar to it [52:27] unless state constitutions don't allow [52:29] you to. If that happens, you mend your [52:31] constitution. That's what we saw happen [52:34] in California. It could happen in [52:36] Maryland. It could happen in New York. [52:37] It tried to happen in Virginia. [52:40] And the courts stopped it on a [52:41] technicality. And this is not what Mike [52:44] and I ever thought we'd be getting into [52:46] 30, 40 years later in our careers. [52:49] >> But it's very good for redistricting [52:50] lawyers cuz now it's [52:52] >> People would see me, you know, this time [52:54] of decade say, "Why are you here? Like [52:56] what year is it?" And now it's like, [52:58] "Oh, you you're back. Thank God you're [52:59] here. We need you so badly." [53:01] >> Yeah, right. Well, I will say, guys, you [53:04] may be out of work soon anyway because [53:07] AI could do this [53:09] a lot quicker and probably more [53:11] efficiently. [53:12] >> We we're dealing with that, too. We've [53:14] got something called ensemble [53:16] redistricting where mathematicians [53:18] who've entered the redistricting world [53:19] about five, six years ago run thousands [53:22] of maps, but they have to give it to the [53:24] lawyers to argue pro or con. [53:26] >> Well, that's that's true. [53:28] Um Mike, any last thoughts before I turn [53:32] this back to uh Lily? [53:36] >> No, other than to say, I know this [53:38] criticism is engendered this decision [53:40] has engendered a lot of criticism. [53:42] but I really think it's a very hopeful [53:44] step in American society. I mean, it's [53:48] 2026. [53:50] It's [53:51] 70 years, 72 years since Brown, 60 years [53:55] since the Civil Rights Act. At some [53:58] point, we really have to stop making [54:00] important decisions about who represents [54:03] us, [54:04] uh who gets into college, etc., based on [54:07] skin color. And I think we've gone well [54:10] past that. I think continuing to inject [54:13] race into these questions is really [54:16] injecting racism into where there is [54:18] none to begin with. And I think we've [54:20] seen all the polarized rhetoric that [54:24] goes around this, which I think is very [54:26] destructive to American society. So, I [54:28] think any steps Supreme Court takes [54:31] towards making a society where race is [54:33] no longer relevant is extraordinarily [54:36] helpful, and I think that's what Kelo [54:38] did. [54:39] >> I assume, Jeff, you have a counter view. [54:41] >> well, I'll just add to it that I think [54:43] we have come a very long way since 1965. [54:46] You know, I show my law school classes [54:48] the uh the voter application forms used [54:51] in Mississippi uh in 1955, [54:54] asking questions that are just leading [54:56] them to want to know who's your [54:58] minister, who's your employer, because [54:59] if you try to register to vote and [55:01] you're black, we want to get you fired [55:03] and get your minister out of town, and [55:05] all sorts of horrible things. We've come [55:07] a long way from that point, but we're [55:09] not totally there yet. And to the extent [55:11] that there still is racial [55:13] discrimination and polarized voting, uh [55:16] there's still a need at some level of [55:18] having voting protections for minority [55:21] Americans. [55:22] >> Well, we've had, I think, a very [55:24] fruitful discussion. We've covered a lot [55:26] of territory, and I want to thank both [55:29] uh Mike Carvin uh and Jeff Weiss for [55:32] participating, and I will turn it back [55:35] now to Lily. [55:36] >> Thank you so much. On behalf of the [55:38] Federalist Society, I want to thank our [55:40] experts for the benefit of their [55:42] valuable time and expertise today. And I [55:45] want to thank our audience for joining [55:46] and participating. We also welcome [55:49] listener feedback by email at [55:50] fedsocforums@fedsoc.org. [55:54] As always, keep an eye out on our [55:55] website and your emails for [55:57] announcements about upcoming virtual [55:59] events. Thank you all for joining us [56:01] today. We are adjourned.
