Ari, there was some rather welcome good news this week on the voting rights front.
Tell us about what happened in North Carolina, and this is actually the second piece of good
news we've had in regards to North Carolina over the past couple of weeks.
Yeah.
It's always rare when there's good news on voting rights from the Supreme Court, given
what's happened in recent years, but on Monday the Supreme Court upheld a lower court decision
that struck down two of North Carolina's congressional districts as unconstitutional racial gerrymanders.
Basically what they said is that Republicans had illegally increased the number of Black
voters in these two districts beyond what the Voting Rights Act required and beyond
what the Constitution allowed, and so they struck these two districts down.
It was a decision written by Elena Kagan, a five-to-three decision that was surprisingly
joined by Justice Clarence Thomas.
Then a week earlier, the Supreme Court declined to hear a case from the Fourth Circuit Court
of Appeals that struck down a North Carolina sweeping voting restrictions, where they not
only did strict voter ID, but cut early voting, eliminated same-day voter registration, eliminated
preregistration for 16 and 17 year olds.
The Fourth Circuit Court of Appeals, in July of 2016, said that, ‘This law targeted Black
voters,’ in the courts, ‘With almost surgical precision’.
That decision was appealed by Republicans of the Supreme Court and the Court decided
not to hear the case.
Meaning, the Fourth Circuit Court of Appeals decision stands.
In the span of a week, North Carolina was found guilty of discriminating against Black
voters and also diminishing the power of their vote, which was pretty remarkable.
Okay.
I want to get into the details of that voter ID case in a few minutes, but getting back
to the racially ... The unconstitutional racial gerrymandering.
Okay.
First off, tell us about what the Voting Rights Act says about ... I mean, why would the Republicans
argue that they needed to put more Blacks within the boundaries of these specific districts
to fulfill the Voting Rights Act?
I mean, we’ll do the real reason why they said that in a minute, but why would they
even attempt to say that?
What the Voting Rights Act says is that when you can draw a district that could elect a
candidate of color, an African American, a Latino, an Asian American, you should.
Indeed, in North Carolina and in other states, there has been lots of litigation over this,
because states like North Carolina used to have no Black members of Congress and because
of the Voting Rights Act, they now do.
Now, what Republicans in North Carolina did is they kind of turned the Voting Rights Act
on its head.
They took two districts, the First Congressional District and the 12th Congressional District,
which were already held for the last 20 years by Black Democrats, and they increased the
number of African American voters in those two districts to make them majority Black
districts.
They said, ‘We're just complying with the Voting Rights Act.’
Now, what was interesting here is that Justice Kagan said, ‘No, you're not just complying
with the Voting Rights Act, these were already seats that elected candidates of color.’
Not only that, but the Black Democrats who held these seats didn't want more Black voters
in their district, because what that meant is by packing as many Black voters as possible
into as few seats as possible, the surrounding districts became more White, more conservative,
and more Republican, and that meant that African Americans had less power across the state.
I mean, that's the key here that people have to understand.
It is not as much about putting more Blacks in this district, it is about taking Black
people out of these other districts so that they become more reliably Republican, in this
case.
Here's the interesting aspect of this, I'm saying that they become reliably Republican,
but I'm talking about Black voters who are not necessarily Democrats, they happen to
be.
Talk about this intersection of on one hand, we're talking about race, on the other hand,
we're talking about partisan identification.
Yeah.
This is really important because the Supreme Court has said that racial gerrymandering
is unconstitutional, but not partisan gerrymandering.
If you can just convince the Court that I'm drawing a district to benefit the Republican
party, not to segregate African American voters, well then it's permissible.
What Justice Kagan said, is that in a state like North Carolina where 90% of African Americans
vote Democratic, you can't separate race and party.
That if you draw a district for political reasons that segregates African American voters,
that is also being done for racial reasons.
This is really significant, because as I mentioned, the fact that the Supreme Court has refused
to strike down political gerrymandering, but has struck down racial gerrymandering, means
that future political gerrymanders can be now challenged potentially as racial gerrymanders
if they're done in such a way, like in North Carolina, where you have Republican legislators
who are segregating African American voters to benefit their own party politically.
The racism is determined basically as a ... Based upon results, not on intent.
Yeah, based on the results here.
The lower court did find that this was intentionally discriminatory.
That North Carolina Republicans did this precisely to segregate Black voters, but the Supreme
Court did not weigh in on this finding.
What's interesting here, is that these are already districts that are functioning as
the Voting Rights Act had intended.
For the last 20 years, since these districts were created, they reliably elected African
American voters, they reliably elected African American candidates.
What Republicans did, not just in North Carolina, but across the south, was they artificially
increased the number of Black voters in districts that were already held by Black Democrats
to try to make the rest of the south as White and as Republican as possible and to try to
make it be a situation where there were no White Democrats left, so that the Democrats
were identified as the party of color, which in the south is not necessarily a good thing.
This was a really nefarious cynical strategy.
I've been writing about it for years and this seems like the first time that the Supreme
Court is now recognizing what's going on here.
Not just in North Carolina, but in other southern states, because this is now the fifth state
where courts have overturned Republican gerrymanders in the south, which I think is really significant.
Is this the fifth time that ... When you say, "The courts," you're talking about Circuit
Courts, you're talking about Federal Courts.
Have they found that, they overturn these gerrymandering all based upon race as unconstitutionally
race-based?
In four of the five cases.
They've struck down, either the Supreme Court or lower courts have struck down maps in North
Carolina, Alabama, Virginia, and Texas for racial gerrymandering reasons, and then in
Florida they struck it down, because Florida has this new fair redistricting ballot initiative
that passed and they found the maps there violated that map.
That was a statutory issue- Four of the five reasons were for racial gerrymandering.
That was a statutory issue and the other four were constitutional issues.
Yeah.
All right.
Lastly, why did Clarence Thomas vote with the liberals in this instance?
Clarence Thomas has been skeptical of racial gerrymandering from the very beginning.
He would say that the Voting Rights Act mandated racial gerrymandering when it created districts
that elected Black candidates in the first place.
He's been fairly consistent on this.
I think he was wrong initially when he opposed these districts, but he's been fairly consistent.
What was interesting though, is that in the previous decisions recently by the Supreme
Court that struck down racial gerrymandering, like in the case of Alabama, Justice Kennedy
wrote the majority opinion siding with the liberals and Justice Thomas was in the descent.
Now, that flipped.
Kennedy was in the minority and Thomas was in the majority.
That was surprising to me.
Kennedy has been pretty clearly opposed to racial gerrymandering too, so I would've thought
if anything this would be a six-to-two opinion, but apparently there was some elements of
Justice Kagan's opinion that for some reason or another Justice Kennedy disagreed with.
It's section two, is that right, that creates these, if not, minority majority districts,
but creates districts where there's a chance of electing minority candidates?
Yeah, that is the part of the Voting Rights Act that is normally used.
Justice Thomas did say in the concurring opinion that he doesn't believe that section two should
apply to redistricting at all, which I find problematic for future cases.
Even though Justice Thomas voted with the liberals in this case, he could interpret
the law in a way that could really hurt voting rights in the future if he had four other
Justices who shared his view, which I don't necessarily think he does.
Nonetheless, that's a pretty radical view to say that-
Right.
This part of the Voting Rights Act doesn't apply to redistricting at all.
All right.
We've got to take a quick break.
When we come back I want to talk about the other ruling that we saw in North Carolina
earlier this month, or regarding North Carolina earlier this month.
Also, I want to talk about Wisconsin a bit.
We've got to take a quick break.
We'll be right back.
Sam Seder on Ring of Fire Radio.
I'm talking to the great Ari Berman.