Alabama Overturned: The Court's Voting Rights Act Case

>> Tom Church: This is the libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian professor Richard Epstein. Here at Hoover, Richard is the Peter and Kiersten Bedford senior fellow. He's also the Lawrence A Tisch professor of law at NYU and is a senior lecturer over at the University of Chicago.

And Richard, we just got a decision, I think a somewhat surprising 5-4 ruling with Kavanaugh on Roberts crossing the aisle, so to speak. In Allen versus Milligan to rule against Alabama's recently drawn electoral boundaries. Well, recently the court allowed the boundaries to hold for the 2022 election. Now, to understand this case, we have to know what Alabama did here with its redistricting and talk about the Voting Rights act and section two, which the case rules on.

But before that, of course, Richard, can you help me get a judicial background to set up how we even got here?

>> Richard Epstein: Yeah, I mean, look, there was a very long period of time in the United States where all reapportionment decisions were thought to be purely political in all relevant dimensions.

And so that the courts would not get into them at all. The most famous expression of this is a case called Colegrove and Green, decided on 1946 about reapportionment in the state of Illinois. And Justice Frank Furtive, who was at that point a non interference kind of guy, said, I do not wish to get into a political thicket.

There are just too many variables that take place, and we have to essentially stay out. Staying out, of course, means that the dominant party can reinforce its dominance in any situation in which districting has to take place, whether at the state or the federal level. And it turns out that you can do an amazing amount of things if you're given that degree of freedom.

Which almost gives your incumbent party a get out of free jail card, they're never going to displace. And this sort of really got more and more anxious and in 1962, in a case called Baker v Car, Justice Brennan, who was a student of Justice Frankfurter when he was at Harvard Law School.

Essentially turned the tables, and he said, there's one thing that we can do, and we're going to do it right now. Which is to say that we're gonna have a rule about districting which one man, at the time, one vote was the dominant position, and we're not gonna allow deviations from that.

And indeed, the Supreme Court has said that's a standard that we could clearly enforce, you could count the size of the districts. And when they started to go through the 60s and 70s, minute differences in the total population were thought to be essentially non satisfied. At some point, the Supreme Court was barking up the wrong tree.

Most people would rather keep a community together in a single district with a responsive representative than to fragment it amongst two or more districts where people feel that they don't have access through their political person. So it's not just legislation that matters with respect to the choice of your representatives, it's also constituent services, which is an extremely important part of this business.

So then some people say, okay, well, what can you do? Well, it turns out if you really limit the population, what you can then do is essentially change the shape and the configuration of the district. So that you can shift, in a state like Illinois, four or five votes, fully consistent with the one man, one vote principle.

How do you do it? Well, it's a technique that's gonna be involved in other cases. Take a city like Chicago, which is heavily Democratic, take the suburbs, which are largely Republican. And if you are a Republican person, what you do is you make all the in city districts all Democratic, and you don't have any of the suburbs in there.

So what you do is you pack the districts, give them very large supermajorities, and then you have Republican districts going the opposite way. If you're a Democrat, what you can do is you can make a district which is 60% in the city and 40% in the suburbs. You get a lot more of those districts, and every one of them will go Democratic.

So you can change an outcome in the state by four or five electoral votes. And so the great question that one has always asked is, do we wish to impose some kind of a compactness requirement and contiguity requirement on these districts? And it turns out there were several cases where there were racial elements involved in the 1980s.

Where a district would be a grotesque 400 side shape, 6 miles of it would only include a superhighway on which nobody lived. And there was a lot of cynicism about all that was going on, and so then you start moving forward. In the Rucho case, about four or five years ago, the Supreme Court, when it came to the shaping issue more generally, it followed the advice of justice Roberts.

And he said, you can stack and pack any way that you want to do so, I'm not getting involved in that political thicket. And many people, myself included, thought that if you're crazy with respect to the strictness on numbers and not at all responsive on the issues of shape, you're in real trouble.

So we then come to the modern Alabama case or the Michigan case, it doesn't matter which one you're talking about, and what you discover is the population is not evenly distributed. And so the great philosophical debate that has always come is as follows. Suppose you have a population which is 20% of the total, and you have five districts.

Would you like to have a situation in which that 20% minority, who has very sharp differences in opinion from the majority is gonna be spread across 20 districts? And the theory as well, you'll now have influence on 20 districts. If you listen to the sort of the ground level people who do all of this stuff, their general view is you don't wanna be a minority.

You wanna have somebody who stands for you in that particular room to do negotiations, because otherwise, what happens is 20% in all those five or ten districts gives you essentially nothing. So when you get to Alabama, the question is, do you play this game? And the Alabama legislature followed kind of neutral rules of one sort or another.

And it created one very large pro black district and made sure that every other district in the state would essentially have white representation. And what the chief justice said, and Justice Kavanaugh conferred, right, is that you can't play the game at that level, there's too much going on with respect to race.

So that if you're talking about the Voting Rights Act, which is trying to get equal representation, we know it's impossibility to achieve. But what he said is, I want you to now change this situation. So instead of having one overwhelmingly black district, I want you to have two districts where black representatives have very realistic chance of gaining seats.

So you're trying to centralize, maximize the influence of black votes vis a vis everybody else, you can understand what the predictable response is. This is introducing race back into the system when the whole purpose of the Voting Rights Acts were to take it out. Justice Kavanaugh sort of sits on a very prickly fence, and he says, I'm willing to do this now, but I'm not sure I wanna do it forever.

And so what the opinion is, is no question that sort of racial conjuring districting is now back in business under the Voting Rights Act of 1965. And this is thought to be an egregious case, so we don't know what's gonna happen the next time around. It could well be that one's gonna expand this particular beachhead and start getting really grotesque districts like we did in the 80s.

Or it could be that what's happened is this is a one summer kind of a thing and not gonna happen the next time around unless you get equally dramatic circumstances. As ever with the precedent, you don't know which way it's gonna go. I did read the blog that came out from the American Constitutional Society, and, it was celebratory of what went on.

And of course, it described everything that Alabama wanted to do and the conservative justices wanted to do as being the incarnation of evil, which I think is an overstatement. And so here's the usual problem. And Justice Roberts has been on both sides of the question. Do we need to have race conscious remedies in order to get past race as a dominant restriction?

And one of the things that Justice Robertson said under other context is the best way to end racial discrimination is not to do racial discrimination. And in this case, he's saying the best way to do it is to fudge the districts a little bit in the hope that if you create the political balance.

That decision will become a little bit more equitable than it has otherwise been. And this is a very tough decision. I actually have a lot of sympathy for what it was that Justice Roberts said, but I would be a little bit nervous. But if you start looking at Justice Thomas, Alito and so forth, they're very strong on color blindedness.

And so you could imagine just how sharp the intellectual divisions are in a case of this sort.

>> Tom Church: Well, Richard, I want to talk about that a little bit more, because what you've been describing for the last little bit has been this question, this problem that sounds political in nature.

It sounds like a problem that needs to be solved politically, not necessarily judicially, which is, should we allow. Should we have racial discrimination or allow states to pay attention to this, to make, I guess, maybe a fairer system or however people want to define it. But this is a case before the Supreme Court about the Voting Rights act, section two.

And I do wanna talk about some of the dissents Thomas's in particular, because, and I'm just looking at the text of Section Two, right? The purpose of section two is to make sure that anyone can vote without a denial or abridgment of the right to vote based on race or color?

So that's part b from this, or section b, is what would constitute disqualifications. So there is a line that if there is less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice. And that's the question at stake right here, right?

So Thomas, in his dissent, says, this Section Two isn't even about redistricting. It's about access to a ballot or counting a ballot.

>> Richard Epstein: Yes.

>> Tom Church: If we have Justice Epstein on the court, where do you actually stand on this? Do you think that that's right?

>> Richard Epstein: Okay, well, let's go back and figure out what's happened.

1964, 1965, when you still had systematic segregation by way of race, nobody worried very much about districting at all. What you worried about was the fact that you would disenfranchise 70, 89% of the people by refusing to let them get a ballot and to come into the election.

There was a famous case in 1961 called Gamillion and Lightfoot, about the city of Tuskegee. And in that case, in order to make sure that the whites would continue to dominate the city. What they did is they took a square district and created out of as a sub-district of about 37 different sides so that they could preserve the white majority.

And Justice Frankfurter, in that particular case, he said, you can't do that. You can't play geographical games to preserve segregation. The question is, could you play geographical games of exactly the same sort to end? And so if you look literally at the statute, is very clear. What they were thinking about was exactly what Justice Thomas said.

We want to make sure that everybody gets to vote. And there was no real concern at the time about the composition of the districts in which the voting started to take place. But then when you start looking at this, the dilemma that I mentioned before becomes very much in the top of your mind.

If you start running districts in which the government has the freedom to shape, what you could do is to give people an access to the ballot box, which does not translate into an access to political power. But there's a deep theoretical problem here that nobody knows how to solve, which is why this is so hard.

Suppose you sort of think of the electorate from zero to 100%, and you want to have proportionate influence. If somebody gets no votes or 100 votes, they either get everything or nothing, and it's real fine. But when you say, okay, now you've got 25% of the influence, does that mean you ought to get 25% of the votes?

And there's just no obvious way in which you can do that. And then somebody says, okay, it doesn't have to be 25%, but can it be 2%? And the moment you start to ask that question of how fractions of votes start to move up. That you then must figure out how the districting is gonna take place to keep some, quote, unquote, rough proportionality, you're in the middle of a great problem.

And I think what happens is the majority in this particular case says, as usual, with remedies and situations like this, you have two choices. One, you can do too much, or the other, you can do too little. And as far as Justice Thomas was concerned, this is too much.

And as far as the majority was concerned, if you didn't do anything, it would be too little. And that's the nature of politics in these kinds of cases. There is no easy way have the percentage of votes translate into a percentage of political influence, power, and so forth.

And then there's the further question is that there are whole parts of the constitution in which people don't want to have direct proportionality. So the single most distinctive position in the federal constitution is with the Senate, in which each state gets two senators. This is an entrenched provision.

And so if you're in Wyoming, you get two of these guys, and if you're in California, you get two of these guys. And the disproportionate ratio is far greater than anything that you see with respect to the reapportionment of district. So what complicates this is the idea of proportionality is one that is rejected for all sorts of other reasons.

Namely because of the fear that the political process is so pliable that if you do have a proportionate system, the majority will always be able to thump the minority. And so what you try to do is to create voting rules that are going to prevent that. I don't think you can do that.

And so I'm gonna start to go back to something else to explain why this problem has always been so nightmarish. There was a very long period of time in which it turns out there were property qualifications in order to vote. And these were not abandoned or rejected in the federal constitution, which was, for the time, fairly pro democratic, inclusionary type of system.

But they had all sorts of restrictions on this, and many states had property qualification. Well, why do you put a qualified property station on there? Because what you're doing is you're afraid if you don't, a large number of the citizens will essentially use their votes to wipe out property rights.

James Madison was an ardent believer of this particular theory, particularly in connection with debtor relief laws. And he was absolutely scathing about the people who would let poor people escape their debts to rich people, simply because they had a greater number of votes. Well, today, it turns out we do not have any property qualifications.

They're probably unconstitutional under the current version of the situation, but the problem still remains. It the best way to handle it, in my view, has always been to have a relatively robust takings clause. Which says, in effect, that massive redistribution is brought about by political majority is a taking of property from A to B.

But if you then start to look at these, we do have pretty strong property protections. Individual landowners whose property is occupied for the government for particular purposes. But there's very little protection against any kind of comprehensive regulation, whether it be of insurance or anything else like that, which results in major redistribution of wealth from one party to another.

So the real difficulty that we start to have is if you push very hard on the sort of parity with respect to the votes, then the property interests are going to be very vulnerable. And the instability of property rights is something which everybody ought to worry about, because if property rights can be taken on day two, they will not be cultivated, invested in day one.

And taking it does not mean only outright confiscation. There are all sorts of ways, like rent control and so forth. We could limit a landowner's right to do something with property which works massive kinds of redistribution. So what we do is we've gotten rid of basically the property constraint through the takings clause with systematic situation.

So we're faced with this particular kind of dilemma. In this particular case, I think in the end, prudence, or whatever you wish to call this virtue, is something of the sort which, as we go this far and no far. And so what you do is you look at the way this thing works.

Justice Roberts has a very cautious opinion. He hasn't abandoned everything that he said in Rushau. He's not going to let them do anything about the way they put districts together. They're gonna be restricted on continuity of the districts and compactness of a district and political coherence of a district.

So he's not giving them a carte blanche. And it turns out Justice Kavanaugh has essentially moved a little bit further, saying, I'm not going to do whatever it is that we're doing in this case forever. So now what you have to do is sort of look at the distribution of nine members of the Supreme Court.

And what happens is you realize that they break, not six, three, but they break in very different kinds of ways. The three liberals on virtually every one of these kind question will vote the same. Occasionally you will get only one person dissenting, as in the labor case, where it was Justice Jackson.

Who essentially wanted to leave something to an administrative procedure run by the NORA instead of allowing a private tort action. That's an important distinction, but, boy, it's not of the stakes that we're talking about here, but largely they stick together on the other end. I think it's clear that Alito, Thomas and Gorsuch on most of these cases stick together.

But you have to be careful because there are a lot of quirky things about Justice Gorsuch in his interest in police rights and so forth. That mean that there's a libertarian streakiness about him that the others may not have, so they're not uniform. But then when you start getting to the four, five and six slots, Justice Barrett is close to those characters, the three major ones, but not entirely there.

This case, she joins with them. Justice Kavanaugh is further to the left, I think than Justice Barrett, and the chief justice is a little bit further to the left. So who's the swing justice on the Supreme Court when it starts to fractionate, it now is Justice Kavanaugh. This is kind of ironic because if you remember the utter vehemence, the denunciations, the attack on this man when he was up for the nomination, that simply rested on a complete misunderstanding of the kind of judge that he was.

He was never a sharp right wing judge and so forth. He was a very responsible, highly respected, kind of center right justice who had a very influential place on the circuit court in the district columbia and so forth. And he goes to the Supreme Court, they make him onto attila the hunt.

It's not true. And so one of the things that you're gonna have to worry about is that you're gonna be able, if you're a liberal or a progressive. To maintain the narrative that this cartless, cold, mindless Supreme Court has got this uniform phalanx against ordinary people. Or you're gonna have to start saying each of these people have individual preferences, individual styles, individual tastes, and it would advise you well to read their opinions before you start to denounce what's going on.

I mean, I feel that way about myself. I mean, there's some issues in which I'm very far to the right, some issues which are much further to the left, other issues when I'm not. And the reason why this case is hard is there is no ideal solution. Once you understand the difficulties of getting a voting system off the ground, that allows you to have the correct sort of proportionate representation theory, that seems to be a political idea, and you need to take it one step further.

If you start using systems which break down the party system and simply say, like the Israeli system, everybody gets proportioned to the number of votes that they have in a general election. What you do is you get fractured coalition government in government. And so what then happens is you get another problem.

Since there's no ruling party, everybody has to form a coalition. These are extremely complicated. And when you're trying to form a coalition the following proposition is almost always true. There will be a party in the government which is needed to complete the majority coalition, which is very small, but since it's essential, it will get a disproportionate amount of influence relative to its size.

So the same problem comes up when you start to figure out the way in which coalition governments work. Which means, in effect, when you're dealing with democratic politics of this sort, it's the old lesson you have to learn again and again and again. There is no such thing as a perfect solution in these cases.

It's a question of making the trade offs in the right way at the right time. If you want to pretend that they don't exist, you'll always be wrong. The moment you understand that they do exist, you have a better chance of trying to get a workable compromise. So I think, in effect, this case is a surprise in some way.

But I think if you start looking at the four and five members of the coalition to which Roberts and Kavanaugh, this is not something which is going to expand to a kind of a free for all of the salt which we may have had back in the 1980s.

>> Tom Church: You've been listening to the libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on defining ideasover.org dot. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church, we'll talk to you next time.

>> Presenter: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcast or watch our videos, please visit hoover.org dot.