Can Fair Elections Survive the Supreme Court’s Gutting of the VRA?

And for us to know that for 61 years, they've been continuously fighting to continue to dilute our vote, to take our vote. It's really devastating for me, and it's really devastating for the foot soldiers. And I just feel like we have to continue to do the work to ensure that, you know, we are educating, activating, continuing to march, continuing to fight and continuing to vote in order to fulfill and preserve that legacy of those foot soldiers. And Dave, explain how the Voting Rights Act has functioned since 1965 to ensure fairer elections. Of course, they're never perfect. But what has the Voting Rights Act actually achieved? And then we'll get to what the Supreme Court's decision did. Well, I think what's so important for people to understand is that it's the Voting Rights Act that breathed life into the reconstruction amendments to the Constitution that had largely been ignored, especially across the South, for nearly the previous hundred years. of Jim Crow. And it was only when the foot soldiers and John Lewis and the others on that bridge in Selma in March of 1965 shocked the conscience of the nation when people saw this on television that night, saw the fire hoses and the dogs and the clubs and the beatings and that blood being spilled that Congress was moved to pass the Voting Rights Act. Nothing else that Congress had done previously worked. Congress tried things like the various civil rights acts in the 1950s and the early 1960s. And they were essentially ignored. Sheriffs in the South, judges in the South did not care what Congress had done. Folks found ways around. these laws it was only the voting rights act and really the you know key provisions section uh two and section five um which enforced, you know, preclearance that, you know, these states that for, you know, far too long had gotten away with ignoring the Congress and the Constitution were going to have to submit any changes to the federal government. The federal government was going to step in and enforce these laws. And it's only then that things began to slowly. a change a congress continuously reauthorized the voting rights act and this court has worked now for the last dozen years to continuously

eviscerate and eroded. Right. This was the third actual attack on the VRA and many argue it was the worst one, one that actually was far worse than the first two. Kimberly, the fact that the Voting Rights Act has worked well has actually been bizarrely, illogically used as a reason to gut it. I'm thinking of the kind of logic, like, you know, it's raining and you have an umbrella to keep yourself dry. And because the umbrella has worked so well to keep yourself dry, you put it away saying, I am now dry. I don't need the umbrella anymore, even though it's still raining. I mean, does that feel to you, this bizarre logic? Is that how ludicrous it sounds? I would say very much so. I think there are two things that are true at the same time. We know that progress has been made. I don't think we should deny that fact, but I think that progress doesn't mean that protection is no longer needed. And that brings me back to what Ms. Blaine used to say a lot. Like it felt like to her we were living parallel to the city. This is the founder of Foot Soldiers Park. That's right. Ms. Joanne Bland, Foot Soldiers Park, founder, child marty and activist. You know, in her later years before she passed away, she said it felt like we were living parallel to the 60s. Because things don't look exactly the way they were. Doesn't mean that they're not the same. And people are putting things in place that are more. more subtle and they're not as blatant with what they're doing. They're not saying how many bubbles are in the bars sold for how many jelly beans are in a jar. But they're still doing things that put, you know, put obstructions in place for people to have the right to vote that dilute those powers, the power of that vote that suppresses the voice, right, of black people specifically in the South. And I think they never stopped trying to dilute the vote, right? Like Dave said, they've been working at this for many of decades now. So I think that we still have to fight, right? And it's quite evident up there in a place like Selma. We have to make sure that we continue to fight, that we continue to utilize our voice because if we just leave them to their own devices, then we see what kind of happens. We have to fight back as hard as they're fighting for us to lose that right. Dave, the Supreme Court has spent more than 10 years attacking the VRA, I believe, began with the 2013 Shelby County v. Holder Act. And in 2021, the Brennovich versus DNC. And then, of course, this Louisiana versus Calais is the Voting Rights Act for all intents and purposes, essentially toothless now? Yes, this court has worked very hard to leave the voting rights in place, but to make it almost impossible to actually use. So we can still be framed on the wall, and this court can say we didn't overturn it. They've simply made it almost impossible.

to actually use the VRA to achieve justice and fairness. And they've taken away the kinds of protections that have allowed people to seek redress. What we saw in Shelby County, of course, when they... put an end to preclearance was the very afternoon that the court came down with that decision. Texas passes its voter ID bill that The state knew it came out in later a court proceedings would prevent as many as 700,000 Latino citizens in the state from voting because they lacked the specific forms of ID that the state was now requiring. They'd quite intentionally gone out and picked the forms of ID that they believed various minority groups were least likely to have and then required. those. John Roberts assured us in that case, right, that things had changed in the South. The fact that nothing had changed was self-evident the very day that decision came down, but that did not change this court and its path, right? Then in Bernovich in 2001, the court essentially scribbles over Section 2 of the Voting Rights Act. Not that long, of course, after in Shelby County insisting that we didn't need Section 5 because Section 2 was there. They set to work replacing that with their own cramped vision of the law. It was not what the people's representatives put in place in 1982 or what Congress reauthorized almost unanimously. or what Congress authorized almost unanimously in 2006, but it was what Samuel Alito and the conservative supermajority wanted that statute to read instead. They have now done something similar with Calais, and the consequences are going to be steep and long-lasting. We're looking at as many as nine. congressional districts across the South currently represented by black Democrats that are likely by 2028 to be elected to be white Republicans. It's going to be a shattering demolition of black political representation and political power across the South. But it is also going to affect state legislatures, perhaps as many as 200 state legislative seats going from one party to the other from one race to the other, and it's also going to have a devastating effect at the local level. We're talking about this as a national question, and it is a national question that will affect everyone, but perhaps this is going to be felt most painfully in school boards and local judicial elections and city and town councils, places outside of the usual hot spotlight where these protections have been most critical.

Hmm. Kimberly, I'm wondering if you can respond to the way in which the Supreme Court is acting so openly in a partisan way. The three liberal justices, Elena Kagan, Ketanji Brown Jackson, Sonia Sotomayor, essentially accusing their colleagues of impartiality of playing politics. Ketanji Brown Jackson's dissent that I quoted, she was very clear and even... even the decision for the court to expedite so that Louisiana expedite implementation so that Louisiana can redraw its map ahead of May 16th. And then the court's majority, conservative majority, called her accusations insulting to you from where you sit. How partisan, how impartial does the court look? So I think that for me, what What people need to understand about section two is that it was one of the main tools communities had to challenge racial discrimination in voting law policies and elections, including the redistricting that we saw here. So I think when people hear about decisions affecting Section 2, this is not language just about something happening far away. It matters in real life, right? This is affecting people's real lives. And it matters because those protections were in place for a reason. And that came from the history of what people did here in Selma, Alabama. And what concerns me is that the protections are getting narrow, right? It can make it harder for communities to push back against unfair voter practices or systems that weaken their voice. I think this is why it matters so much. For people here, it's not abstract, right? We know what it costs to get these protections in the first place. And I think, like Dave said, the one thing we had first was Section 5, right? And then the last thing that we had was Section 2. And I think that the government, for them to approve or pass the law next to Section 2, again, after the state passed the law with Section 2, you saw it immediately, right? It was very partisan. You saw it in Louisiana. You saw it in Florida. You saw it in Mississippi. And for me, what's closest to me was you saw it in Alabama. Governor Kay Ivey immediately called a special session where she presented a redistricted map that was struck down by the Supreme Court previously. And we're just seeing them knowing that they're planning, right? They've been planning for this. They've been planning to execute this for a long time. And we see now, right, how impartial they are.

We have to actually be able to say that this is based on race, right? We have to be able to identify that in order to take it to court, right? How do we identify that? Right? That's another, again, an obstacle, a suppression tactic that they're putting in place, like the Bowles and the Bar So for us not to be able to have that voice to remove those black voices, those people of color. And like Dave said, it not only affects people of color, black people or Democrats, it affects everyone, right, across the board. And I think that for, for. I guess practical purposes, like it's just, it's pretty evil. I feel like in my opinion it's just evil and it's hateful. And they're doing everything they can do in order to dilute the vote, right? And to redraw those maps so that our voices don't have power. Dave, the state of California had just months ago essentially tried to undo what, or compensate for Texas' gerrymandered maps in a way that was sort of playing the Republicans at their own game to ensure fair congressional representation. And regardless of what one thought of California Governor Gavin Newsom's approach to, you know, if you can't beat him, join him. How does the Supreme Court decision on Louisiana versus Calais affect California's redistricting plan, if at all? Democrats fought back against the Texas mid-decade redistricting by claiming an equal number of seats in California. Equally bad for Republicans and independents in California, voters there as what Texas did is bad for Democrats and independents and representation there. But it evened out the national political calculus. Then Republicans went ahead in Ohio, Missouri, and North Carolina and added four seats, and Democrats counteracted that with the new map in Virginia. So the mid-decade... partisan redistricting wars had been fought largely to a stalemate prior to the decision in Calais. Calais is going to allow all of these southern states that we've seen move already to go ahead and enact. new maps. Florida moved early, anticipating what the court was going to do. They've enacted a new map that advantages Republicans in four extra districts. Louisiana is likely to take the two existing black districts. It's entirely possible that Alabama moves on the two black districts in Alabama.

Mississippi, Tennessee, South Carolina could also move. That's about an additional 10 to 12 seats that Republicans could take ahead of the 2026 midterms. In 2028, they can go even further. It's possible you could see Georgia move by then. You could go back into Florida, could go back. into Texas. I imagine you will see Republicans go after the... majority minority district in St. Louis, and then to go take some of the partisan seats that they left on the table in Indiana, Kentucky, other parts of the country, Kansas. Democrats will fight back. They will attempt to eviscerate all the Republican districts in Colorado, many of them in New York. They might take another shot at California. They might go into Illinois. Result of this is going to be a mid-decade gerrymandering Armageddon in 2008. That makes what has happened in 26 look like a handful of skirmishes. But this is going to be dramatic and consequential. We had 37 districts in 2024 that were competitive and within five percentage points. A lot of those seats have been taken off the board already in 2026. It's possible that by 2028, you might be able to count the number of competitive districts that are not predetermined by mapmakers on one or two hands. Wow, that is, I appreciate that so much, Dave, for you to go through the full potential extent of the Supreme Court decision. It's quite remarkable. I'm wondering, Kimberly, what the conversations are that you are hearing in Selma today. How are people responding to this, you know, really quite consequential decision? How betrayed are. African-American descendants of those who fought for the VRA feeling and also what are they thinking about the future and I'll ask you Dave this as well after Kimberly what can be done about this Kimberly yes so I'm hearing a lot right now there are a lot of people that are feeling defeated right now but not me i'm very hopeful i think growing up the way i did with foot soldiers spark founder miss joanne blan gave me a a different perspective lens um you know lived experience and i know that once once you you know you feel defeated you lose hope and then where do we go from there and i think um when the v r was passed it really changed in selma what could be possible

Right. It meant more black people could register the vote. They could actually vote. They could be a part of the democratic process and actually make decisions on what mattered to them in their lives. And over time, that kind of changed representation. It changed local leadership. It changed what people believe that they could demand. However, It also changed a few other things. It changed the fact that we weren't a part of the process. We had the same mayor, Mayor Smitherman, no affiliation that I'm aware of, that was on the bridge beating those marchers in 1965 up until the year 2000. And in the year 2000, we had mass white flight when we elected our first black mayor, Mr. Mayor James Perkins. And with that, that outgoing mayor, his last act in office was to take all the power away from the mayor and give it to a majority white city council. And with that mass white flight, with that change of power, with that new leadership and decision-making structure. We lost a major tax base. We lost our Air Force base. We lost access to, you know, funding for infrastructure. We began to lose our talent pool. Ultimately, you know, resulting in something very different from what I grew up in here in Selma. which, you know, we had things for youth to do. We had restaurants. We had other organizations that were pouring into our youth, into our families, and I see it a lot today. So it's very compounded for us because people are calling every day. Like, I can't afford my groceries or I can't afford my light bill. What resources can't foot soldiers park provides. And it really... Seems like to me, we won the battle for voting rights here in Selma, but it seems that we're really being punished for winning that in all of the investment into our community, to Selma, into the Black Belt, seems to really dwindle. And I think that... People became very resilient based off that. And I think that people are still resilient, even with this decision that has come down with Section 2. I think that they're aware of this history, of their legacy of this community, and how Selma changed this nation. And they know, just like I know, that Selma can once again change this nation. So they are continuing to organize, educate, activate, and fight for us to continue to have those rights that were won here in Selma, Alabama. And Dave, what can be done from your perspective? Certainly there can be local pushbacks and attempts to have fair elections, but really this requires a federal response. Does it not a legislative response, I imagine. But in order to have a fair legislative response, we need fair...

maps so that we can elect people who will restore the Voting Rights Act in its fullness. I mean, it's sort of a chicken and an egg problem. What do you think needs to happen? Yeah, I think you've identified it quite well, right? The system has been tied in knots quite intentionally by the U.S. Supreme Court. It's almost as if this is the outcome that they were hoping for. So those knots are going to have to be untied by We the People, and it's going to have to be a national, federal response that requires, of course, taking power, which... will be that much more difficult under these conditions. But I think in that regard, we can all take a lot of inspiration and courage from the fight that the foot soldiers won 61 years ago, right? We can do this. We have already proven we can do this. We should not have to do it again. But here we are, and we all face challenges in order to protect democracy. I think this is going to require big reform. I think it requires a U.S. house that looks quite different. It's going to perhaps require thinking about a more proportional house instead of using single-member districts that can be drawn. by one side to give themselves all of the seats in a state, but if you have a more proportional system along the lines that Don Beyer and Jamie Raskin have proposed in the Fair Representation Act, larger multi-member districts, you use ranked choice voting, you will see larger delegations that turn every district into a swing district and allow for every state to see the full complexity of its political opinion and also the full rainbow of its of its of its racial composition to actually be shown But I think we're also going to have to think about how we reform this U.S. Supreme Court that so clearly thinks of itself as a robed super legislature with no limits, lifetime appointments, no... No term limits, no ethics code. I think that if we are going to make this big change and win and then keep this big change, it's also going to require a very different way of thinking about this Supreme Court. Perhaps it's a larger court. Perhaps it's a court that has had its jurisdiction changed. Perhaps it's a court that...

is term limited and every president gets a couple of picks. And we know that the least big change. At least two of the six conservatives have been documented as. essentially violating ethics laws and acting in extremely egregious manners, Clarence Thomas and, of course, more recently, John Roberts. And I want to end with a question that I hope doesn't sound terribly naive, which is in the lead-up to the midterm elections, this 2026, we're so much as writing. You know, a lot of people have really seen the taking the democratic control of the House and Senate. as the only way to curb Donald Trump's overreach, fascism, authoritarianism, and that's looking like it's completely in jeopardy, can larger than ever turn out, which of course traditionally midterm elections have lower turnouts than presidential races, can larger than ever turn out in some way combat what the Supreme Court has done. In other words, can turn out. counter a little bit of the effects of unfair gerrymandering. I'll ask Kimberly first and then Dave for your brief responses before we close. I would say yes. And I'm hopeful of that. And that is why we're doing the work we're doing at Foot Soldiers Park so that we can try to play a part in that larger turnout. We're working in the school systems. We're registering youth voters every day in the schools. We're giving them education, ensuring that they know what they're voting for and why they're voting and why it's important and important and, you know, what the foot soldiers in Selma. and other places did for them to have those rights. We're working within our community, trying to make sure we're restoring voter rights. We're trying to do everything we can to ensure that as many people as we can get to the polls, offering rides, you know, breaking any barriers that are stopping people from getting out to vote. But we do know that, you know, voting is just one part of it. You have to meet people where they are. And especially in Selma, majority black community, you know, With the poverty level we have, the lack of infrastructure, lack of housing, lack of quality education, there are so many other obstacles in people's way that we have to get them passed to get them to vote, right? And so trying to make sure that we are identifying and adjusting as we work to get these people to the polls. And David, brief thoughts at the end about turnout? Turnout is always crucial, always important. The vote is the most important voice we have. Redistricting and gerrymandering makes that voice harder to use, right? When you crack and pack voters and when you splinter them across so many districts that their voice becomes a diluted, it's really hard for turnout itself to change.

results. But that doesn't mean we don't get out there and try. Our voice is what we have. The vote is the way we exercise it in a democracy. And we are going to continue to fight and make ourselves hurt. Well, I want to thank the two of you so much for joining us today. I really appreciate your time. Thank you. You so much for having me. My guests have been Kimberly Smitherman, founding partner and CEO of Food Soldier Spark and David Daly, senior fellow at Fair Vote and the author of Anti-Democratic Inside of the Rights, 50-year plot to control American elections, a history of John Roberts, the Supreme Court, and the Voting Rights Act. I'm Sonali Kohutka Hostin's executive producer of Rising Up with Sonali, an independently produced subscriber-supported program nationally syndicated to radio station's free speech TV and podcast platforms.