Vincent Southerland on Black Voting Barriers

Welcome to CounterSpin, your weekly look behind the headlines. I'm Janine Jackson. This week on CounterSpin, in primetime speech, Trump doesn't provide evidence for illegal voting. Was the temperate headline, NPR put on a story about Trump's recent speech that they allowed included many baseless claims about election integrity? They told us that, quote, many of the documents the White House posted online during the speech did not appear to fully support sweeping claims the president made, close quote. And they even got to the point of calling his contention that he won the 2020 election a lie. What the story didn't do was show with urgency. how voting in the upcoming midterms and beyond will be materially affected by the use of state power to promote ideas that they're saying are, yeah, for sure, not true. Obstacles to voting don't have to be valid to have impact. Black people know that better than anyone. And it isn't just Trump's lies that media keep repeating, even as they call them lies. The Supreme Court's decision in Louisiana versus Calais makes the terrain different in ways that people need to understand and confront. Vincent Sutherland is Associate Professor at New York University School of Law, where he directs the Criminal Defense and Reentry Clinic. He's faculty director of NYU Law's Center on Race, Inequality, and the Law, and co-editor of Race Rights and Redemption, the Derek Bell lectures on the law and critical race theory. We'll hear from him today on a counterspin. That's coming up, but first very quickly. The Palestinian Ministry of Health reports that since October 23, Israeli violence has killed at least 73,221 Palestinians, half of whom are women and children, and wounded 173,654 others. By February 26, at least 21,289 children had been killed and 44,500 injured in Gaza. Even after the so-called ceasefire took effect on October 11, 2025, Israeli violence has killed 1,100 Palestinians, including at least 260 children and injured 3,546 others. That means that on average, the Israelis have killed four Palestinians every day since then.

That accounting comes from Vijay Prashad at Tri-Continental Institute for Social Research, who adds, quote, some catastrophes disappear because they end. Others disappear because they continue for so long that the world grows accustomed to them. They cease to interrupt television schedules and Instagram reels, just as they no longer command the front pages of newspapers. Financial markets return to their ordinary calculations. The daily machinery of political and economic life resumes its familiar rhythm, and diplomats are asked to put away their briefing books on that tired but painful subject. Yet, the catastrophe remains intact. The U.S. Israeli genocide of Palestinians in Gaza has not disappeared because of a new peace, but because the permanence of the genocide makes it unmarketable news. Close quote. You're listening to CounterSpin, brought to you each week by the Media Watch Group Fair. In the United States, there's an incantation evoked when we see something horrific happening, and that's, well, just vote against it. The belief that this country is a democracy is powerful, such that even intelligent, aware people believe that if a person got elected or a law got passed, it must have been because more people wanted it than didn't. It's hard. It's depressing to learn that that isn't how it works. that there are obstacles and loopholes and backdoor cronyism and payoffs and favor trading, a million things that make a travesty of one person, one vote. It's one thing to be an aspirational society. Pretending harms aren't serious harms because they don't fit the model of the country you're pretending to be. That's something else entirely. It's dangerous to keep seeing what's happening in front of you and calling it aberration. because this isn't who we are. Black people have never had the privilege to pretend that all the work is done. There's no pleasure in watching so many other people wake up to that. But we do know that you have to be awake to make real change happen. Vincent Sutherland is Associate Professor at New York University School of Law, where he directs the Criminal Defense and Reentry Clinic. He's faculty director of NYU Law's Center on Race, Inequality, and the Law, and Co-Editor of Race Rights and Redemption, the Derek Bell Lectures on the Law and Critical Race Theory from the new press. He joins us now by phone. Welcome to Counterspin, Vincent Sutherland. Thank you all for having me. Well, I want to take a moment to think about 1965 and the context of the Voting Rights Act. The hope of black people that the law was the thing that could take us outside of existing racist power relationships. The law was our recourse. It wasn't utopian. It was grounded. But talk a little about the Voting Rights Act and its impacts.

to help us feel what's happening now? Sure. So the Voting Rights Act in 1965 was really the crown jewel of the civil rights movement. It was a result of years and years of struggle by countless individuals working with every day of their might, organizing, protesting, marching. but also pulling on levers of political and moral power to really vindicate the United States Constitution's guarantee under the 15th Amendment that no government could deny or bridge the right to vote on the basis of race. color, or previous condition of servitude. Now, the critical point about the 15th Amendment was that it was part of a trio of amendments, the 13th, 14th, to 15th Amendment that were enacted in the wake of the Civil War during what is often referred to as this country's second bounding, keeping all the period of reconstruction, which really tried to reorient the frame of this country. and remove the source of structural and moral, racial barriers to full participation in the society. It really tried to vindicate the rights of black people and ensure that the 13th Amendment in the enslavement, the 14th Amendment, perfect citizenship as well as the full monopoly of rights and privileges of common citizenship, and the 50th Amendment securing the right to vote. And so... Even after the passage of the constitutional amendment, in the argument of constitutional amendment, there was still all sorts of efforts undertaken by states across the country, primarily in the South, to limit, prevent, and otherwise... undermine black people's political participation and the ability to vote. You think about things like poll taxes, think about things like the sorts of tests that people were forced to endure, count the number of jelly beans in this jar, pay a tax for being able to vote, and then downright and outright violence that was undertaken by individuals trying to prevent black people from exercising their political power. And so the Voting Rights Act was designed really to try and put an end to all those. forms of discrimination both the forms of discrimination that were explicit and intentional and over time eventually with amendment forms of discrimination that were implicit and more based on the effects rather than obvious expressions of intent by racists or others who were trying to deny black people to write the vote and so what the voting rights act did was change the political dynamics of this country. And what you saw was this tremendous uptick in a number of black elected officials across the American South, across the country, really, had all levels of government, both in the federal and state and local elections. And so you had much more black representation because the law was used to remedy and prevent the source of...

efforts that individuals were engaging in to try to undermine the right to vote. So, in 1965 was, you know, at the time when the Boyan Rights Act was signed as a law, I think there was a lot of hope about what the future held and a lot of hope about the promise of the 15th Amendment and the promise of voting rights act to be able to vindicate people's right to vote. And you saw the result of that over the ensuing years. You can't really overestimate the way the Voting Rights Act has been used to affect real change for black people and hence for everyone. So let's talk through what you write about, which is the historical significance of the 26 Supreme Court ruling Louisiana versus Calais. It's monumental. It really is. I mean, it represents one of the most consequential voting rights decisions. in decades. And it really fundamentally shifts and alters a balance of power, not only in Congress and in federal elections, but in state and local elections as well. And perhaps most importantly, rolls back the tremendous progress that have been made over decades to ensure that black people and other people were able to exercise their right to vote. And what we... think will be the result of the decision is an erasure of black political power unlike anything we've seen in our lifetimes. And it's hard to overstate. just how deeply troubling and harmful this decision is going to be. It's already having effects in states like Tennessee, Florida, Alabama, Georgia, South Carolina, and Louisiana, of course, where you're seeing the elimination of seats were previously held by black elected officials, which is seeing the elimination of black elected political power across. many of these states and that sort of effort is going to only continue unless and until either the federal government and our representatives of Congress or those at the state level take action to do something about it. Well, maybe take a second to explain how that's happening, how voter dilution happens, you know, and redistricting. You can't give chapter inverse, but Louisiana versus Calais allowed states to do something. And what is that? Let's kind of think of step back and talk a little bit about the decision itself. The Voting Rights Act had two kind of primary tellers, if you will. One was Section 5, and Section 5 of the Voting Rights Act basically required states that then engaged in historical discrimination in voting to submit to the federal government their plans for changing anything about the way in which the voting process was going to take place to ensure that the changes they were making were not going to...

undermine the ability of black people and other people of color to exercise the right of the goal. That was one section. Section 5 was essentially gutted in an earlier Supreme Court decision a few years ago. So you have this one enforcement provision of the vulnerability of the United Act that is already essentially dead letter. What Caletti did was strike at another provision of the Illinois Act, Section 2. And what Section 2 is is often known as one of the central positions is known as the sword of the voting right act because of its enforcement powers. What Section 2 allowed individuals to do, is they to do with the challenge changes to the processes by which voting was going to take place to ensure that black people or other people were able to exercise the right to vote. And it would allow the challenges based on the effects of... changes that states are going to make to their voting processes. So let me give you like one example, not necessarily drawn from the opinion, but just an example of the sorts of changes. Say I want to change a polling place from one part of town where the vast majority of individuals who live in that part of town are black and brown to another part of town or a place where black and brown people are just unable to get to because of lack of transportation because it's just difficult to get to it because the hours are difficult for them to be able to exercise the right to vote during those hours. And if two would allow, and say you want to make that change just because you think it might be more convenient or because it's just, you don't have any animus, you're not racist in any way, but you just want to make the change for some other unrelated reasons. And maybe it's better for Republican voters or better for a certain class of voters unrelated to their race. Such a two would allow. individuals to demonstrate that that change are going to have this effect on black people's ability to elect their candidate of choice, and therefore we need to prevent that change from happening. What Calais does is essentially say that states and officials who are running the elections can make those sorts of changes. and make them as long as they are related to political parties that in order to prove that something nefarious was happening in the course of making no changes. You have to demonstrate that someone actually acted with. intent with racist intent i.e. the person who's making this change to the ways in which voting is going to happen has to declare that they're doing it because they're trying to harm black people's ability to exercise their right to vote and disregards the very standard in the statute which looks to the effects of a sort of change and so What Calais does is weaken and really, in many ways, upend the entire framework of Section 2 and reduce the Voting Rights Act to little more than words on a paper. So let me give me an example of how this plays out in the context of a change that might affect black people's rights to vote. And the Calais decision lays out an example to help clarify what this all means.

So imagine for a moment a state that is shaped like a rectangle. In the center of that rectangle is a circle. The rectangle itself is 90% white. The circle is 90% black. Now imagine under normal conditions, the people who are in the circle, the black people are able to elect their representative of choice. year after year after year. They decide they want to elect X, Y, Z candidate. They're able to elect that candidate year after year. The same is true of the people in the rectangle. Now imagine the state legislature decides, you know what, we want to eliminate the political power of the people inside that circle. And so what the state does in order to eliminate their political power is split the circle into six equal slices. Right? And takes each one of those licenses and apportions it to part of the larger rectangle. Right. So now that 90% population that was inside that circle is spread out across the entire rectangle. And therefore, the people inside that circle no longer are able to elect their candidate of choice to no longer able to use their political power to express their political voice, meaning that their vote. now counts the less than people in the rectangle who are majority white. And so that is racial vote dilution. What section two under the old regime would allow litigants to do is the challenge the legislature's action by saying, look, you're eliminating the ability of people inside the circle, their ability to elect their candidate of choice. That's a problem. That's a problem under the law. You need to recreate a district or several districts that allow them to do that. What Kelly says is unless the state legislature says we're doing this because we want to make sure black people can't vote, there is no remedy. The law has no effect. And the fact that you could see the elimination of black political power inside that circle being split into six equal slices and spread across the state. is meaningless, like the effects of it are meaningless. We only want to pay attention to the intent, the actions that are intentionally taken by the legislature, which is precisely what Section 2 was designed to address the effects and not the intent, because those we know. People who engage in racist behavior don't often say we're doing it because we are racist because we want to stop black people or brown people or other people color from the envelope of the vote. They say it because they might give any other excuse in the book, right, but they're not going to be as explicit about why they're taking particular actions. Thinking that was designed with that understanding in mind because we understand how racism operates and the drafters and legislators who created Section 2. Republicans and Democrats alike, understood that you need something that's going to allow us to get the biggest effects of these voting changes rather than just the calculations of intentional discrimination made by people who were undertaking sort of changes. And so Calais changes the landscape in ways that are hard to understand just how much of the change is marked.

And it's against a backdrop. The way it's being sold to a lot of people is this notion of colorblindness. And I know that a lot of people, black, white, brown laugh out loud. at that idea, you know. Right. It's not colorblind when I walked down the street or sit in some restaurants. It's not colorblind when I apply for a loan or a job. We live in a color-seeing world, you know. And so I think for a lot of people, it just lands hollow when we say, oh, well, but no, it's all the same. We're all equal. So why should it matter that there is no longer a protection for Black Voice in the voting process? That's 100% right. And, you know, the Supreme Court. In particular, the conservative majority in the Supreme Court, has time and time again returns this ideology of colorblindness, this notion that the way to deal with racial injustice is to ignore racism and treat everyone as though race does not matter. And so you see this colorblindness. ideology, not only through the court's jurisprudence around the death penalty, there was a case in 1987, McClesby v. Brian Kemp, where you had a situation where black individuals were more likely to be sentenced to death if the victim in the case was white. And what the court essentially said was there's no remedy for that because we don't have anybody engaging in intentional racial discrimination. And we can't look at the effects of these sorts of decisions. You see that. colorblindness notion in the context of the single-source group's affirmative action on this idea that we can't try and remedy the lack of diversity better that we find in our educational institutions and doing so and undertaking any action that acknowledges the ways on which rates cast a shadow over everything in our society problematic is in and of itself a problem under the law based on this idea of colorblindness and i see it in the voting rights face as well, because what the court is doing is kind of transforming any consideration of race into suspect. It's not illegal behavior, even if that consideration of race is far more in line where the reality is the world that we live in today. Well, you lay all of this out in your recent piece at Hammer and Hope, and you say in that piece, given all that, what's next? So I'll ask you that. We won't pretend things are simple or easy, but talk a little about what we can do besides hide under the covers. I think there are a few things. I think, first of all, we have to really take back of just how much of a seat change and how significant discipline. actually is. And really think a step back and zoom out and think about what this court's jurisprudence is actually signaling to us and telling us.

It's of a piece with the sort of kind of make America great again movement, conservative or right ideology, this notion that we basically, our past is our past. We've kind of gotten over all of it and we no longer need to think about or consider or be concerned about the ways on which race continues to shape our present day and current day reality. And that is the prevailing sentiment, this idea is that. trying to advance racial justice is an unnecessary task because everything is by now, kind of just get over it. And you see the Supreme Court that is almost signaling a sort of exhaustion with efforts to remedy are racial inequality. The first thing you need to do is get to understand that, you know, our past is not past. It's really... with us right now and it lives with us right now and the effects of it but with us right now. I think the second piece of it is to understand that we can't simply ignore racial inequality. Like the only way to get beyond the sort of the name is we find ourselves in today is to confront it head-eye. The same way that you would, you know, if you go to the doctor and something's bothering you. The doctor's going to ask you, what are your symptoms, what are your problems? Doctor's also going to ask you about your family history. I'm going to ask you about your past, about the things you've done, about the things that might have caused whatever illness you have brought to her. And you wouldn't go to a doctor and say, well, I don't know anything about the past. You know, none of that stuff matters. Of course not. The same is true when it comes to racial inequality. So I think there is that piece of it. I think the other piece of it is at the state level, we've seen states reacting and responding to Calais, New Jersey, I think is a good example that is passing things like the John R. Lewis Boarding Rights Act. These are state voting rights act provisions that essentially mirror a lot of what was set forth in the Federal Voting Rights Act of 1965, tried to replicate the regimes that would allow state officials to ensure. that black people and other people of color are able to elect their candidates of choice that will presume that changes that are being made to efforts to vote have to be cleared by the Secretary of State or other state officials before allowing those changes to go forward to ensure that those changes are not going to have a disparate impact on black voters. And so you see states passing laws or that's one of the kind of things on the table to try and address. the harm that Calais is certainly going to foster going forward. And I think the last thing, you know, among the last things that we need to do when we think about what comes next and what we need to be focused on, is continue to understand just how fragile the gains that we've made over the last. half century, 75 years actually are, and understand that whenever we've made progress or trenchment is often what comes next and follows almost immediately after that. And understand that our obligation is to continue to fight these fights and continue to talk about and call out racial injustice when we see it, whenever we see it, wherever we see it, and to have an understanding of how racial injustice is not only a challenge for

black and brown people, but it's a challenge for all of us because we live in a multiracial democracy with a constitution that has these lofty ideals that we have responsibility to close the gap between the reality that we are living in the ideals that we see in our foundational documents. And so I think part of what I would implore us to do is stay educated, stay conscious, stay focused on the harmful things that our government, that our courts are engaged in, some of no sight of. those sorts of challenges and get distracted by the noise that's out in the world today. So I think if we do some of those things, along by building, you know, durable political coalitions that I think draw on people from all walks of life who care about justice, who care about freedom, who care about liberation, and understand that building political power in that way is going to allow us to leverage the law in ways that are going to advance our cause and world. Well, there's a lot more I could ask you, but we'll have to end it there for now. We've been speaking with Vincent Sutherland. His piece, the Supreme Court, blesses the destruction of black electoral power, can be found at hammer and hope.org. Vincent Sutherland, thank you so much for joining us this week on CounterSpin. Thanks so much, Kenyon. It's wonderful to be here.

And that's it for CounterSpin for this week. CounterSpin is produced by Fair, the National Media Watch Group, based in New York. If you missed part of the show, you can find shows and transcripts on our website, fair.org. The show is engineered by Alex Noyes. I'm Janine Jackson. Thank you for listening to CounterSpin.