A Huge Shift is Underway at SCOTUS

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This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithway. I'm not saying it's rigged. I'm saying it stinks to high heaven and everybody knows that. You really have created this world in which the Supreme Court has essentially said. We're not going to protect democracy anymore. Everybody knows instinctively something is wrong here. And now the Supreme Court is saying, not only aren't we going to protect you, but we're not going to let Congress protect you either. We need people to believe in the integrity of our election system. It is critical to maintain a constitutional public. You know, if you want to say the Constitution is colorblind, it's hard to say that about voting since the voting amendment in the Constitution talks about race. This was one of those weeks at SCOTUS where we cautiously approached what might have been a big can of exploding snakes on Thursday's Decision Day and instead just got a plain old can of three worms. Mark Joseph Stern and I will be discussing that in our bonus episode for Plus members and exploring why Ketanji Brown Jackson Ketanji Brown Jackson found herself atop the mountain again this week trying to ring the alarm bell about what this right-wing majority is up to when it says it understands congressional intent better than, well, Congress. Go to slate.com slash amicus plus to become a member and hear that conversation. But here on the main show, I am turning to one of the very smartest constitutional scholars that I know to talk about perhaps the most fundamental issue of this moment, a moment in which we are beset. on all sides by urgent crises. That issue is, of course, voting in elections and the growing sense that this Supreme Court has decided it's done with the death by a thousand cuts approach to voting rights and free and fair elections, instead opting for death by bazooka. Pamela Carlin is the Kenneth and Harle Montgomery, professor of public interest law and a founder and co-director of the Supreme Court litigation clinic at Stanford Law School. She's argued 10 cases before the Supreme Court and is one of the nation's leading experts on voting and the political process. She has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel in cooperating attorney for the NAACP Legal Defense Fund, and twice as a deputy assistant. Attorney General and the Civil Rights Division of the U.S. Department of Justice. Pam, Carlin, welcome back to Amicus. Thank you so much for having me. Maybe you should subtract the three voting rights cases that I argued at the Supreme Court from my total. I think you get to keep them and then we get to stand around and like warm our hands by the fire.

This term, Pam, I think, is going to go down as a watershed year for voting rights. And it seems to me that constitutional and statutory voting rights have gone from being kind of a SCOTUS side hustle to the main dish. And I'm not always sure that that shift has been obvious to everybody. But maybe the failure to notice was because it's just too easy to keep getting caught up in the details and the kind of tit for tat of polls and primaries and the redistricting wars. And maybe to miss the big picture of like the sea change that is happening in front of our eyes. So maybe just to set the table, Pam, can you try to encapsulate for us what has shifted on the ground in the last couple of weeks at the court? Sure. So what's shifted on the ground is the Supreme Court has now decided to completely eviscerate the Voting Rights Act of 1965, which is a statute that President Johnson called the most monumental act in the history of American freedom when he signed it, and which Ronald Reagan referred to as a crown jewel when he signed the reauthorization of the act in 1982 that was the subject of the case that was in front of the Supreme Court. Maybe before we get to that macro view on fair elections, we can touch on one of the latest repercussions of the John Roberts Court declaring that the Constitution is now officially colorblind. And that is this startling new Justice Department opinion that would wipe out a half century of civil rights protections in the employment context. This past Tuesday, the Justice Department's Office of Legal Counsel released a 25-page opinion taking the position that disparate impact liability should no longer be sufficient for liability under Title VII. There has to be proof of discriminatory intent now. And I wonder if you can translate that into terms that are more readily understood by non-civil rights attorneys. And also explain how it is that the Office of Legal Counsel tries to hang this on Calais, which was a case that was entirely about voting rights and not employment discrimination. Yeah. So, you know, I think the kind of position of the second reconstruction, which is what we often refer to the kind of landmark civil rights statutes that were passed by Congress and approved by the Supreme Court. I should say. So this is not the first time these issues have been at the Supreme Court. The landmark civil rights statutes of the Second Reconstruction recognized that requiring plaintiffs to show a racially discriminatory purpose missed the point, that the point of these statutes was to fully integrate black Americans, Latinos, Native Americans into all aspects of American civic life. public accommodations, employment, voting, housing. And the idea here is that if we have statutes that for whatever reason are excluding people because of their race or their ethnicity, there's a problem there. And we should fix that problem. And we shouldn't require that you have to point a finger at somebody and call them a racist before you can say using a high school graduation requirement for janitors.

Thornburg against Jingles said when Congress passed the amendments to the Voting Rights Act in 1982, it amended Section 2 so that you don't have to prove that a voting practice or procedure, which can include redistricting, it can include registration requirements like. You don't have to prove that that is purposefully discriminatory if the result of that practice or procedure is that members of minority groups have less opportunity than other voters to elect the candidates of their choice. That's the so-called results test. So that was 1986. Over the arc of the next 40 years, the Supreme Court on political gerrymandering moved from it's justiciable, and here's our standard in Davis v. Against Bandmer, to it's unconstitutional. All nine justices in Veith against Jubilee in 2004 said, Extreme political gerrymandering is a violation of the Constitution, but they split three ways. Four of the justices said it's unconstitutional, but we can't do anything about it. That's the Justice Scalia position. Four of the justices said, it's justiciable, and we have a standard for it, although they split three ways on what the standard was. And then Justice Robert F. Kennedy Jr. said, I don't know. You know, I'm going to swing here a bit. So over the next decade and a half, people tried to come up with ways to give him a standard he would like. And ultimately that failed. And in Rucho against Common Cause in 2019, the Supreme Court said political gerrymandering is inconsistent with democratic values, but we can't do anything about it. You know, let Congress fix it, let the states fix it, but we can't do anything about it. But they still agreed at that point that it was a bad thing. They just disagreed on whether they could do anything about it. So that's the arc of the political gerrymandering cases. The arc of the Section 2 cases is Thornburg against Jingles put out a kind of framework for assessing whether you had vote dilution of minority voters. voting strength, that looked at could you draw districts from which they would be able to elect? And was there racially polarized voting in which the white majority voted one way, the racial minority voted another way, and the white majority's votes just overwhelmed the votes of the minority? And that transformed the South. It transformed California. It transformed a lot of northern states, especially with regard to local elections. And all of a sudden, you started seeing minority communities electing candidates of their choice to Congress, to city councils, to county commissions, to state legislatures. I mean, it really, there's a great book about this called Quiet Revolution in the South. Okay, now we come back to the two strands joining each other, really in Calais, which is Samuel Alito has now announced it's not that we can't do anything about political gerrymandering. It's the political gerrymandering is legitimate. That is, it's a legitimate government purpose for the party that's in control of redistricting to screw over its opponents.

And it's so legitimate a purpose that it outweighs any claim by the minority community that it's unable to elect candidates of its choice under the Voting Rights Act. So what he has done is completely reverse what the Supreme Court did 40 years ago. And what he has said is essentially as long as the Republican Party is willing to screw over white Democrats, it's free to screw over black people as well because black people vote. overwhelmingly in the South in particular, for candidates who are Democrats. More in a moment with Professor Pam Carlin. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume, and like you, we seek out different sources on the same subject to get the full story. Ground News is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right-leaning coverage that claims, quote, And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing Street meat grinder. The Nobel Peace Center called Ground News, quote, an excellent way to stay informed, avoid echo chambers, and expand your worldview. Here's how to get started. Go to groundnews.com slash AC to get 40% off their unlimited access vantage subscription. That's groundnews.com slash AC. And you'll get 40% off the Vantage subscription, whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com slash AC. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today.

Granger knows when you're a procurement manager for an office park, you're not managing one building. You're managing all of them. And to stay ahead, you need to see through walls and around corners. Lights about to fail, filters ready to clog, H-back on its last leg. If you wait until something breaks, you're already behind. Count on Granger. For quality products, easy reordering, and 24-7 support. Call 1-800 Granger, click Granger.com, or just stop by. Granger, for the ones who get it done. Let's return now to my conversation with Pam Carlin. So there's three prongs to this, and we're going to braid in the third, which is Purcell, right? Because I think you've now talked about the two big shifts. One. Is the complete, you know, we're going to hold our nose and allow some political gerrymanders. It kind of sucks. But, you know, what can we do to their amazing, good faith? Yeah, they're great. And then section two. Then the third piece of all this is. Purcell. Yes. You recently wrote it was entirely foreseeable that the court's decision in Calais would set off a series of attempts by states under Republican control to eliminate majority black and Latino districts, even before the court took the extraordinary step of issuing its mandate immediately to enable Louisiana to eliminate its second majority black district, although the primary election was already underway. And you go on to say, and I think this third strand is important and hard to understand, quote, So Calais marked not only the gutting of Section 2, but also a rollback of the Purcell principle, which directs federal courts to hesitate before altering the legal landscape close to an election. And I would love for you to bring in that third strand of what the court did to subvert. Again, Purcell was a principal. You know, it was never, I guess, a hard and fast rule, but they turned it on its head. in Kelle as well. Purcell was a actually was a shadow docket case itself. And what the court said in Purcell is you really shouldn't change the rules of an election once the election is underway because that causes voter confusion and voter confusion may depress turnout, thereby denying people effectively their right to cast a vote, right? If you're so confused, you don't know what district you're in or the like, you might not vote. And then your preferences, your... views about who should represent, you won't count. And the court has used Purcell again and again over the course of the years since it decided the case to stop federal courts from putting into effect remedies for actual voting discrimination because it's too close to an election. And what they did here is they raced to make it possible. to change elections that were already underway. Having earlier said, once an election's underway, you really oughtn't to change the rules of the game. And they come right out and say at one point in their Alabama decision, which I think is where we might be going, it's okay if the state wants to do this. It's just not okay if a court wants to do this. But notice there were court orders in effect. So a court actually has to do it.

to enable this because there was an injunction in Louisiana in place when the election began. And the Supreme Court raced in to lift essentially that injunction. There was an injunction in place in Alabama. And the Supreme Court intervened to change that injunction, essentially to allow Alabama to go ahead and try and get rid of one of its majority black districts. And notice. This round, the states are only trying to get rid of the districts they were forced to draw after the 2020 census. But the other majority black district, the first majority black district in Louisiana and the first majority black district in Alabama were also the product of voting rights litigation. This was litigation in the 1980s. So if the court is really saying that the Voting Rights Act doesn't require any of this stuff, it's not clear why those districts... aren't vulnerable the next time around because, let's face it, those districts are electing Democrats. And if it's okay to get rid of a district because it's electing a Democrat, indeed, it's a legitimate state purpose to get rid of all of the Democrats, then why not get rid of those districts as well the next time around? So you've led us here. We have to do Alabama now because this is another earthquake that happens. Well, this is, yeah, this is a totally outrageous earthquake. Okay. Go ahead. So a couple of years ago, the Supreme Court held that Alabama had violated the Voting Rights Act by not drawing a second majority black district, which Alabama could easily have done but didn't do. and sent the case back to the district court for remedial proceedings. And the district court said to Alabama, draw a second majority black district, and Alabama said, go fish. So the court drew a district. And in the course of drawing that district, it said, look, Alabama, not only did you violate the Voting Rights Act, but you essentially did this for a racially discriminatory purpose. And you'll remember the Voting Rights Act doesn't require you to say that, but a three-judge district court in Alabama, court that's familiar with Alabama, you know, the two of the judges, the district judges are from Alabama. They actually are Trump appointees on top of everything else. And they said, look, Alabama, you purposely discriminated here. Because when you came up with your... quote-unquote remedial plan that didn't remedy anything. You talked about how you were going to protect the Spanish and French colonial heritage of white areas along the Gulf of Mexico, aka the Gulf of America. And you didn't talk about the heritage of the Black Belt, which is where a large part of Alabama's black population lives. It's called the Black Belt because of the soil, not because of the people, but that's where a large number of Black Alabamians have lived for centuries now.

So it drew a remedial map that created a second majority black district, and Alabama appealed that issue to the Supreme Court. And the Supreme Court, right after Calais, went back and said, okay, Alabama, you get to use the map that the district court found was not only a violation of the results test of Section 2, but actually a violation of the Constitution because it was purposefully discriminatory. And the thing that makes this especially outrageous, and just as Sotomayor gets at this in her dissent from this remand order, is in Calais, the Supreme Court said, we're not saying anything that undercuts our decision in the Alabama case, which is a case called Milligan. And now... They've done this in Milligan itself. You know, so it's sort of liar, liar pants on fire. And on the shadow docket. And on the shadow docket. And after the election had already gotten underway in Alabama. So what Alabama has now done is it has, you know, congressional district primary going on in some parts of the state. But it stopped the same election in other parts of the state because it got to redraw the districts. so that it can get rid of one of the majority black seats. I mean, it's just, it's just insane. Okay, so that leads to my actual next big question, which my brain can't. bear the load of this insanity, which is what you're describing is this kind of near and medium term race to the bottom, administering elections, you know, just tit for tat. You said to the New York Times last month, it raises the question of, quote, the torrent of tooth and claw partisanship. And there's no way to look at this other than, you know, it's like electoral bloodsport. To the victor goes the spoils. based on what we've just seen in Milligan and in Calais. And what I'm interested in is this question of, does the court not understand how nakedly political this? I mean, there's no other lens through which to view this. As long as the court didn't hold that political germany was just non-justiciable, the kind of... implied threat that if you went too far, the Supreme Court might do something about it, actually held it quite a bit in check. But once the Supreme Court announced, we're not going to do anything about political gerrymandering. the gloves were off, but the gloves are off in a kind of asymmetric way, which is the Republican Party in the South can scroll over black voters with no consequences to itself to maximize its power. But of course, since black voters are part of the Democratic coalition, the Democrats can't do the same thing when it comes to districts in the north. And you also have this weird kind of race to the bottom that comes from the fact that a number of the blue states.

in the period between 2000, let's say, in 2015, 2016, around there, started to try as a matter of state constitutional law to limit naked partisanship, you know, in the spirit of good government. But what those states now find is that they've been kind of sucker punched because if they continue to adhere to their rules about fair districting and Republican states decide. screw the rules on fear districting, we're just going to go ahead with naked partisanship. That has an effect on the overall composition of the House of Representatives and, you know, and the like. And so you saw, for example, California had. an independent redistricting commission. But after Texas announced, it was going to take five seats away from the Democrats in amid redistricting, California had a special election, essentially, to take seats away from the Republicans in California. And New York, you know, is kind of hamstrung by its constitution, whereas Florida, although it has one of these rules on fair districting, is just going ahead and, you know, redistricting to try and take away another Democratic seat. So you really have created this world in which the Supreme Court has essentially said, we're not going to protect democracy anymore. We're going to let whoever's empowered do whatever they want. And we're going to essentially declare the second reconstruction over, which is that Constitution is colorblind language. Language that, you know, if you want to say the Constitution's colorblind, it's hard to say that about voting since the voting amendment in the Constitution talks about race. You know, it's not a colorblind amendment. It doesn't say you can't abridge people's right to vote because of whether they are urban voters or rural voters or farmers or miners or like, but it does say you can't do it because of their race. And so for the Supreme Court to say, we think the Constitution's colorblind is a little bit like what the Supreme Court said in the cases that are called the civil rights cases from 1883, where it said, you know, the time for protecting racial minorities is over. But here's the deep irony about that for me is when the Supreme Court said that in 1883, they said, you know, the time for us to protect the rights of the freedmen is over. They should protect themselves using the ordinary modes of politics that other people use. Well, that's exactly what the Voting Rights Act was. People demonstrated in the streets. People marched and died in the South. And the political system decided to fix the exclusion of racial minorities from elected office by passing the Voting Rights Act. And now the Supreme Court is saying, not only aren't we going to protect you, but we're not going to let Congress protect you either. So I think that's the part where the record skips for me, Pam, is that.

The court has now declared, as you and I have both said, you know, the Constitution is colorblind, not our business to, you know, get involved in this. But then I think by blessing, shameless. political gerrymandering. It's just hard not to accept that the court is letting itself look nakedly, openly political. And I don't know how they get out from under that, or maybe what you're saying is they don't care. I don't think they care. There's that line of Leah Lipman's about this being the Yolo court. You only live once court, or maybe that beer commercial grab for all the gusto you can. They've just decided they have the power right now to undo the second reconstruction, and they're happy to do that. And they don't care that it's obvious that that aligns with a particular wing of the Republican Party. And I say particular wing, because it's important to understand the Voting Rights Act. was passed by a bipartisan majority in Congress. Two of the architects of the Voting Rights Act in some ways were Robert Dole, who was later the Republican candidate for president. And Henry Hyde of the famous, you know, anti-abortion Hyde Amendment, went to the South. heard the testimony in 1981 and was so shocked by what was going on in the South that he became a supporter of the Voting Rights Act. So the Voting Rights Act has been bipartisan up until quite recently when you now have a Republican Party, especially in the South, that has no interest whatsoever in attracting black votes. And in Texas... It's a little bit iffy because it is trying to attract some Latino votes. But, you know, again, it's a party that is not interested in being a multiracial, multi-ethnic party. We're going to take a short break. But if you want to listen to Amicus at free, you can become a Slate Plus member at slate.com slash amicusplus. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today.

When you're a maintenance engineer in a beverage manufacturing plant, you keep production lines moving and quality on track because there is no room for slowdowns. With Granger's vast selection of high-quality motors, sensors, belts, and hard-to-find parts, you can get what you need fast and all in one place, so nothing gets in the way of getting the job done. Call 1-800 Granger, click Granger.com or just stop by. Granger, for the ones who get it done. And we're back talking elections, the law, and the Supreme Court with Pam Carlin. I'd love for you to talk just for a minute about elections at large or one-party delegations because in your writing post-Calais, you've been warning us about this possibility of returning to that reality. And you're warning about returning to that reality in this moment of, as you say, hyper-polarized politics. Can you just walk me through the analysis there? Sure. So long ago, the Supreme Court said the whole point of having districts. for an election where you're electing a lot of people. So if you're electing seven Congress members or you're electing, you know, 54 members of Congress or whatever, the whole point of having districts is to have a fairer system than you would have if you did what's called election at large or what they called in the 19th century election by the general ticket. Because in an at-large election, say you're electing seven people. and everybody gets seven votes for the seven positions, a bare majority, literally 50% plus one person of the people who cast ballots, can control all of the seats. And the Voting Rights Act, one of the things we absolutely know about the Voting Rights Act is it was intended to address the problem of at-large elections in the South. That was the predominant way that county commissions and city councils and boards of election were elected in the South in 1982. Majority of them were elected that way. And Congress wanted to get rid of that because it said that was unfair. Now what we have... is the ability of states like Alabama or Louisiana to draw their districts in a way that essentially turns it into an out-large election where a bare majority of the population. can elect all of the members of Congress. So you will have a completely Republican delegation. You know, and if you look at the flip side, so this is not just a Republican problem, it's a Democrat problem. In California, you know, probably 38% of the voters, 40% of the voters vote for Republican candidates. I mean, it's a clearly blue state, but, you know, it's not like there are no Republicans here. We're not going to have, I think, 52 of our 54 seats or 50 of our 54 seats elected by Democrats.

because we've redrawn the districts to ensure that we're responding to Texas. And, you know, this is not a better country if what we have is an all-democratic congressional delegation from California and an all- Republican congressional delegation from Texas. We'd be a much better off country if... Democrats in Texas are represented, but also the Republicans in California. Having a bunch of black Democrats in the North elect people to Congress, but having no ability of black Democrats in the South to elect people to Congress doesn't respond to the regional and local needs that are really important. It's just a much worse system. And that's what the Supreme Court is happy to see us have. So that's a nice segue, Pam, to something you said that freaked me out a little. You gave an interview to our colleague, Sharon Ali, at Slate for the executive dysfunction newsletter after CalA. And you were trying to explain that Democrats are not necessarily going to win the big redistricting, gerrymandering wars. And one of the things that you said that. struck me at the time and strikes me now as I'm listening to you talk, is that the answer to almost everything in our system is if you don't like the candidate or the party or the platform, you vote and you change it. But what you're saying is there's no way to vote yourself out. of this kind of gerrymandering war and that the original sin that the court has just, like, granted us is that having blessed partisan gerrymandering forever and ever amen, if you get screwed over by the other side, you have no recourse other than to, and then you suggest, you know, you can create some kind of ground up movement. You can like go back to the drawing board. You can try to invent a system to prohibit. partisan gerrymandering, but it is like this Sisyphian ask to tell people you can't go to the ballot box to repair this, best of luck America. Well, that's what's so outrageous is people did go to the ballot box and they did change this. That's what the Voting Rights Act was. The Voting Rights Act was a national movement that changed this and Congress made a judgment and that judgment. created at least some restriction on gerrymandering, not all kinds of gerrymandering, but it prevented the South from engaging in political gerrymanders that completely eliminated black and Latino representation. And that's an important constraint. It's not a full constraint, but it's an important one. And the Supreme Court just came in and said, you can't do that. And Congress theoretically has the power under the time, place, and manner. clause in Article 1 of telling states what to do. That's why we have congressional districts in the first place. Because in 1842, Congress passed a law that said you've got to draw single member districts. And that law requires you to use contiguous territory. You can't have like bantustans. And it also, both as a constitutional manner now and as a statutory manner, requires that they be, you know, equal in population.

But how much power is the Supreme Court prepared to cede to Congress? That is, if you had a political movement that came back and said, you said in Calais you were just updating and aligning the Voting Rights Act, what if Congress came back and said, no, you know, actually we'd like to update and align it back to where it was. The Supreme Court's not going to let them do that. And that's kind of outrageous because the Constitution gives Congress, not the Supreme Court, the power to enforce. the commands of the 14th and 15th amendments. And I think we need to do one more beat on this because I think one of the points you've made that I think gets lost in the shuffle is what all of this does to voter confidence, to voter turnout, to, you know, the voter sense that their vote matters once you raise the stakes this high. Yeah, I mean, if you if you tell. voters, no matter what you do, you're not going to elect a candidate of your choice to one of these very important offices, which is in what we're talking about now is the House of Representatives. That made depress voter turnout, not just for the House of Representatives, but for presidential elections and gubernatorial elections and senatorial elections and down-ballot elections, you know, for the school board or for county sheriff or the like, which will decrease people's confidence in the democracy. I mean, if the Supreme Court tells you no matter what you do, we're going to allow naked, partisan, incumbent protecting gerrymanders, why vote? So I think we have to talk about California for a minute, much as it pains me, Pam, because I'm sure nobody is less surprised than Pam Carlin that the GOP and Donald Trump and his Justice Department are immediately making claims about the widespread fraud in California in last week's elections. And Bill Assaley, the first assistant U.S. attorney for the Central District of California, is already insisting that people are going to be charged over alleged voter fraud. But the piece of it that I think think again, kind of like sends a chill down my spine is House Speaker Mike Johnson last Monday. I'm not saying it's rigged. I'm saying it stinks to high heaven and everybody knows that. Let's remove the appearance of impropriety. Let's have what a concept. Let's have votes. on an election, the day of the election. That's what many states are able to do. I think California is playing around with this. But what evidence is there to prove that there was his reign? Some of these efforts are so diabolical and so far upstream, it is impossible to prove. But I think everybody knows instinctively something is wrong here. And that's a concern. We need people to believe in the integrity of our election system. It is critical to maintain a constitutional public. So this is unfalsifiable, right? This is, oh, there's vote fraud, rampant vote fraud, but it's so nefarious that we can't prove it. Yeah, we've looked and looked and we can't find it. And that proves that it exists. Right. This is the Chris Kobach playbook. I mean, this goes, this is a longstanding play.

And again, it's part of the authoritarian playbook, too, right? Don't believe the evidence. Believe what we're telling you the evidence would show it if it existed. But for me, I think, again, it puts so much strain on... anybody who's trying to believe that elections are not routinely stolen and routinely, you know, thrown to the highest bidder. It's utterly costless for Mike Johnson and Donald Trump. And apparently Trump's first assistant U.S. attorney for the Central District of California to just make claims that the whole election was tainted by fraud. First of all, the election wasn't tainted by fraud at all. And there's another case that hasn't yet come down from the Supreme Court. This is a case that involves Mississippi, but Mississippi has a similar law to California's where if you vote by mail, as long as your ballot is postmarked by Election Day, you have a grace period for it to come in. Mississippi, I think, is five days here. It's seven days. And the question that's in front of the Supreme Court is, does that law violate the Election Day statute when it comes to federal offices, that is, in voting for the presidential electors, Senate, and House? And, you know, we'll see what the Supreme Court does with that. And then we'll see how Purcell principled like it's going to be about whether if it says you can't have these laws, it changes them for the ongoing 2026 election or not. But the problem in California is not a problem of fraud. It's a problem of slow counting of perfectly legitimately cast ballots. And it's ironic. I know Mike Johnson is a big one on the, you know, on the Bible. So there's that line in the beatitudes about, you know, you're not seeing the log in your own eye, but you see the speck in someone else's. Like he sees the speck of maybe. 100 people in a state of 40 million who weren't entitled to vote but actually cast a ballot. And he's obsessed on that. And he doesn't see the log in his own eye, which is the state of Louisiana screwed over black people in order to make sure that his seat was safe. It's that weird... combination of not recognizing that the system is unfair and then demonizing this possibility that some person who's not a U.S. citizen or not a resident or hasn't gotten their rights restored after they were released from custody voted as the problem. I mean, it's just ridiculous. I mean, if you think about it in even remotely rational terms, if you're not entitled to vote and you know you're not entitled to vote. Going to vote is one of the stupidest things you could possibly do because your chances of affecting the election are close to zero. I mean, other than Christine Todd Whitman, who didn't vote in an election where there was a tie in New Jersey, I don't know anybody else who could have cast a decisive ballot in an election. So you run the risk of prison in order to do something that will have no effect at all.

And so when you actually look at the prosecutions of people who are prosecuted successfully for voting when they shouldn't have, it's people who didn't realize their rights hadn't been restored after they came out of prison. Or it's people who they were legal permanent residents, they went to get a driver's license, and the numnuts that the DMV said, because the NVRA, the National Voter Registration Act says, do you want to register as well? And they thought they could. It's never people, you know, organized bans of aliens from another planet coming and trying to steal our elections. So it's so ridiculous. I mean, I remember this from the Supreme Court's voter ID case in Indiana a couple of years ago, the Marion County case, where... Indiana was asked, how many examples of in-person voter impersonation fraud have there been documented examples in Indiana history? And they couldn't point to any. And the closest anybody could come to this was pointing out that boss Tweed in 19th century New York used to have people go in and vote multiple times. And if the best thing you can say is, well, in the 19th century we seemed to have had some in-person voter impersonation front, if that's the best thing you can say, then having rules. designed to prevent that, that actually prevent lots of living human beings from voting, is such a bad trade-off. It's a bad trade-off, but I think this is not about the trade-off. This is about saying something so often that it becomes... part of the political and legal conversation. And you're exactly right. I think the only response has to be to like laugh coffee out your nose and say, you know, if you've got visiting Martians like coming down and voting, please, you know, show me the photos. But it is maddening that it all seems to be ramping up to what's coming in the midterms. Well, of course, because the Republican Party's claim, its fundamental claim is If we don't win the election, it must have been fraud. Right. Right. It's just a ridiculous claim to make. But that's the claim they make. Pam, let's end on this, which is, in fact, one of the myriad worries that keeps me up all night. We started by talking about... What I think is a real change from a Supreme Court that used to do this in tiny increments over years and years and then turn around and say, like, look, you know, it's always been this. It's ever been thus. And suddenly that's not how the majority is approaching these election cases. And I keep thinking, and Mark Stern and I in our end of term kickoff a couple of weeks back, we talked about this. Why the rush? What is the John Roberts Court hurry? They've got a super majority that will endure for a long time. They are, in my view, stepping on the gas. And I'm not completely sure if this is just kind of doctrinal Overton window moving that just is accelerating or if there is some...

internal abiding fear that lose the midterms, they start to pack the court. Like, I cannot figure out for the life of me, Pam, why the step change happens. And it happens under our noses in terms of voting and what's driving it. And this is rank speculation. It's speculation o'clock on amicus. But do you have some thoughts on why this is on rocket fuel right now? Well, I think some of it is. You know, they have a supermajority today, but that super majority could disappear for any one of a wide variety of reasons. You know, I mean, remember that if you go back to the end of the Obama administration. When Justice Scalia died, the court could easily have tipped the other way, right? I mean, every time I see NMG, you know, when the Supreme Court lists all of its opinions and they put on their official website the initials of the justices next to them and you see, you know, E.K. for Elena Kagan or CJ for the chief. And you see NMG for Gorsuch. All I can think is not Merrick Garland. And, you know, Suppose that the Democrats take the presidency in 2028. At that point, you have several justices who are not young anymore. And if those justices either were forced to retire from the Supreme Court or died or the like. there wouldn't be a supermajority necessarily anymore. And so one of the lessons that I think, you know, especially Clarence Thomas and Samuel Alito and the chief learned, is you've got the power now, but you may not have the power five or ten years from now, you know, and you've got... Justices, Clarence Thomas and Samuel Alito in particular, who really dislike the Second Reconstruction. I mean, they really, really dislike it. And they have the power to get rid of something they really, really dislike. Why not take it? Especially if your view of American institutions is as cynical as theirs seems to be. So it's a twofer. You get rid of the second reconstruction and at the same time you do the best that you can to break all of the voting rights progress that we've accrued and you're hedging against. Even if we lose, we're going to keep winning on these. Yeah, we'll get rid of this stuff. you know, make it more difficult for people in the future to do this again. I mean, we're going to need a third reconstruction in some ways. And this Supreme Court is going to make it as difficult as possible to get there.

Pamela Carlin is the Kenneth and Harle Montgomery professor of public interest law and a founder and co-director of the Supreme Court litigation clinic at Stanford Law School. She's argued 10 cases before the Supreme Court and is one of the nation's leading experts on voting in the political process. She has served as a commissioner on the California Fair Political Practices Commission, an assistant counsel in cooperating attorney for the NAACP Legal Defense Fund, and twice as a deputy. Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice. Pam, this was incredibly illuminating if depressing. And I believe that on that note, you're going to play us out with a little ditty that you call yesterday. Sure. Yesterday. All my troubles seemed so far away. Then the Supreme Court decided Calais. Oh, I believe in yesterday. Suddenly, they're not rights the way they used to be. There's a shadow hanging over me. Oh, yesterday came suddenly. Very suddenly. But well, dulcet, dulcet tones of Pamela Carlin. Well, you can see why I want to be a lawyer, not a singer. Thank you, Pam. Thank you, Dahlia. That is all for this episode, but Amicus Plus members looking forward to seeing you in the bonus boom boom room where Mark Joseph Stern is going to join me to unpack the latest legal news that we couldn't reach here on the main show. Today's Amicus Plus bonus episode delivers another tour to farce from the Broadview Sixth prosecution in Chicago with the release this week of the full grand jury transcripts. And as jaded as Mark and I are, the prosecutorial misconduct. that is laid bare in those transcripts is jaw-dropping. And we're in opinion-palooza mode as we explain why a hyper-technical case about securities provoked a truly stirring dissent from Ketanji Brown Jackson, who points to Amy Coney Barrett's three-card Monty that ensures that no matter the hand it's dealt, the Supreme Court always beats the house. If you want to get unlimited access to all of Opinion Palooza, join Slate Plus to get unlimited reading at slate.com, add free versions of amicus and bonus podcasts, including emergency episodes, when the biggest decisions come down. Visit slate.com slash amicus plus to join. You can also subscribe to Slate Plus directly from the Amicus show page on Apple Podcasts and Spotify. Our latest bonus episode is available for you to listen to right now. We'll see you there.

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