Merrill v. Milligan

The Supreme Court says there's simply no time before elections that are months away, to redraw racist Congressional district maps, that took all of one week to make initially. If you're a fan of democracy that probably sounds bad, but listen, nothing in the Constitution explicitly says that fascism is expressly prohibited.

A podcast where we dissect and analyze the Supreme Court cases that have put our rights on indefinite hold, like Delta Airlines when I try to call about the flight voucher they owe me

0:00:00.0 S?: Up to six of the nine Justices on the Supreme Court were willing to think about a shrinking of minority voting rights.

0:00:11.2 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Merrill v. Milligan, a recent case on redistricting in Alabama.

0:00:24.4 S?: Last month, a lower court ruled the state's new congressional map most likely violated the Voting Rights Act, and ordered officials to draw a new one.

0:00:32.1 Leon: The map in question concentrated the state's Black voters into one district through gerrymandering, and even though primaries are still months away, the Supreme Court has ruled there's no time to redraw the maps, and that Alabama will have to proceed with the voting districts as they stand today. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:53.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have put our rights on indefinite hold, like Delta Air Lines, when I try to call about the flight voucher they owe me. It's been a long weekend, folks. I'm Peter. I'm here with Rhiannon.

0:01:12.2 Rhiannon: Hey. Hello, everyone.

0:01:13.6 Peter: And Michael.

0:01:16.2 Michael: Hey, everybody.

0:01:17.4 Peter: I was just having flashbacks to handling the situation.

0:01:18.8 Rhiannon: Trying to go somewhere, Peter? No, you're not.

0:01:21.3 Peter: We are going to New Mexico, not to visit Michael, but we will be visiting Michael.

0:01:26.3 Michael: Yeah.

0:01:27.3 Rhiannon: Not if Delta has something to say about it, you're not.

0:01:30.2 Peter: No, we booked it. The only question is, who's gonna pay? I say Delta.

0:01:37.2 Rhiannon: Your preference.

0:01:38.5 Peter: They say, me, so we'll see how it goes. Today's case, Merrill v. Milligan, this is a case from just a few weeks ago about voting rights in Alabama. Following the 2020 census, the Alabama legislature redrew its congressional map, and because this country is a fake democracy, they gerrymandered the shit out of that map, of course. Specifically, they packed as many Black voters as they could into one district and then split up the other clusters of Black voters across multiple districts, essentially resulting in there being only one Democratic majority district, when if done fairly, there would be more.

0:02:22.5 Peter: And the result, of course, is that the votes of Black voters statewide were diluted. The Alabama NAACP and others sued under the Voting Rights Act, which prohibits racial discrimination in voting, and the District Court agreed with them, saying that this was in fact a violation of the Voting Rights Act, and ordering Alabama to redraw the map before this year's election. Alabama then appealed up to the Supreme Court, asking that the lower court's order be frozen so that they did not have to redraw the map and could go ahead with the election. And the Court, they said, alright, you do you, Alabama.

0:03:03.7 Rhiannon: They're cool with it. We're all good.

0:03:09.3 Peter: So, Rhi, you want to dive in a little bit?

0:03:10.6 Rhiannon: Yeah, sure. Before we dive in, I just want to say that we talked in detail about gerrymandering in our episode on Rucho v. Common Cause, that was published back in October 2020. So if you haven't listened to that episode, go back and listen for more on gerrymandering, how it works, the advanced technology used to achieve gerrymandering and how the Supreme Court thinks this is all fine.

0:03:35.4 Rhiannon: So to be clear though, gerrymandering is the process by which usually state election officials carve up voting districts in order to favor one party over another, so they manipulate voting maps based on demographic factors like race, wealth and past voting behavior to group just the right number of the preferred party voters into each voting district to gain a majority there, and then they dilute the votes of the non-preferred party voters by spreading them kind of as thinly as possible throughout the rest of the voting districts.

0:04:07.7 Rhiannon: In the Rucho episode, we talked about the term packing and cracking, which describes exactly what the state of Alabama did in this case. So note first of all, that the state of Alabama's population is about 27% Black. Most Black people in Alabama live in the urban center of the state. So imagine if you divided the state like horizontally in thirds, roughly that middle third is where the Black population of Alabama is concentrated. So Alabama has a total of seven voting districts in the state, and even though the map makers could have abided by what the Supreme Court calls traditional distracting principles, for example, they could still be protecting incumbents, they could keep together existing communities of interest, they could have abided by those traditional districting principles and created two districts, two of the seven, where the majority of the population is Black.

0:05:04.2 Rhiannon: Instead of doing that, they packed almost one-third of the Black population of the whole state into one district, creating just one district where the majority population is Black. For the rest of the Black population in the state, the map makers cracked those communities across the rest of the voting districts, which utterly obliterates that population's influence in elections by totally diluting their votes. So to explain it with numbers, the resulting stats here, kind of, under this voting district plan, Alabama's 27% Black population has meaningful influence over just 14% of the congressional seats in that state. And while 92% of the state's White population resides in a majority White district under this voting plan, less than one-third of the Black population lives in a majority Black district.

0:05:57.2 Michael: Yeah, and one very sort of simple way to think about these numbers, 27% and 14% or whatever, is that roughly, if not nearly exactly, two out of every seven Alabama citizens are Black, but under this map, only one out of seven Alabama representatives will be elected by Black voters.

0:06:17.8 Rhiannon: Right, right. Yes, a really good way to put it.

0:06:20.9 Michael: So it essentially cuts their political power in half.

0:06:24.8 Rhiannon: In half, yes, Yeah, so the plaintiffs Peter mentioned, the NAACP in Alabama and others, they brought a lawsuit under Section 2 of the Voting Rights Act, saying that this is a racist use of gerrymandering, and it cannot be the way Alabama divides its voting districts. The District Court agreed with the plaintiffs, and we should underscore, highlight here that the District Court is a three-judge panel in Alabama made up of one Clinton appointee and two Trump appointees. This was a District Court judgment that came from Republican nominated and appointed judges. And the District Court decision said that all of the evidence that the plaintiffs showed compels the conclusion that the districting plan not only violates the Voting Rights Act, but they said it wasn't even a close call, like this is clearly an egregious violation of the Voting Rights Act.

0:07:19.9 Peter: Right. So the lower court comes to that conclusion and they order Alabama to redraw their districts to make them less racist. Alabama goes to the Supreme Court asking for a...


0:07:33.6 Michael: We are not gonna be less racist, are you kidding me?

0:07:37.8 Peter: The whole thing. So Alabama goes to the Supreme Court asking for a stay of the lower court's order. Important to note, because the issue the Court is addressing here is not whether the map violates the Voting Rights Act, but whether Alabama should have to redraw the map before the election right now. So the court says, hey, we know the District Court said that the congressional map is illegal and racist, but let's sort that out later. In the meantime, you don't have to redraw the map, you can have your racist election.

0:08:11.1 Rhiannon: Yeah, go ahead and do the racist voting thing.

0:08:13.5 Peter: And Alabama is like, great, that's all we wanted to do was a racist election. Now, there is no majority opinion here, because this is a shadow docket decision. It's a procedural matter. Instead, there is a couple of lines saying that the lower court's order is stayed, and therefore Alabama can proceed with its racist election. Kagan files an angry dissent, Roberts files a very technical dissent, and Kavanaugh files a concurring opinion that is essentially just a response to Kagan, and he's joined only by Sam Alito.

0:08:45.8 Rhiannon: Losers.

0:08:46.8 Peter: So really the only evidence of the majority rationale is in Kavanaugh's concurrence. So let's discuss, and frankly, it's pretty simple, in my view. The Voting Rights Act prevents discrimination in voting, which includes racially discriminatory gerrymanders. The lower court, which again includes two Trump-appointed judges, found the Alabama district map to violate the Voting Rights Act, told them to draw a new one. The Supreme Court doesn't say the lower court is wrong, but it stays their order anyway. So essentially the holding here is, sure, the Alabama map is probably illegal, but we're going to allow the election to proceed with that map anyway. The primary reason cited by Kavanaugh is what's called the Purcell principle. Michael, I'll let you handle the Purcell principle.

0:09:36.6 Michael: Alright. So Purcell v. Gonzalez, this is a case from 2005, 2006. A pretty small decision. It was unanimous, it was per curiam. It was, I believe, also a shadow docket case, not a very long opinion, and it was about a voter ID law in Arizona that had been passed by a referendum, and it had this weird procedural history where the District Court said the voter ID law was okay, without a decision, without any fact-finding, and then the appeals court reversed the district court, also without an opinion. Odd case, odd case.

0:10:21.2 Michael: But regardless, the Supreme Court, because of this weird procedural history, gets a little more into the merits in the fact-finding than it usually would in discussing the case, and comes to this conclusion that, look, even if this voter ID law is unconstitutional, and we doubt that is the case, but even if it is, we're way too close to the election, it's only weeks away to be making big changes, right, that that would lead to confusion, voter confusion, which could lead to voter disenfranchisement here.

0:10:58.1 Peter: And to give a little more color here, the Ninth Circuit had basically stayed the law, saying, so, okay, it's not gonna be implemented, and then they put a briefing schedule that started after the election, so they were basically, without any determination on the facts, saying this law won't apply for this election.

0:11:20.5 Michael: And so this Purcell principle, whatever you might think of voter ID laws, and whether or not even agree with this rule, is reasonable, right, we don't want to confuse voters a few weeks before the election, because some might just be like, I don't know, I'm staying home, right, or end up at the wrong polling place or whatever. Here's the thing, though, there's no confusion in this case. What would a voter be confused about? They don't even have a district yet. And changing their district isn't a big deal because they're gonna be getting fucking flyers from candidates, they're gonna be getting information telling them where their polling location is weeks, if not months in advance of this election, which by the way, the general election is nine months away.

0:12:06.7 Rhiannon: Right, we're not talking about a last minute switch in the law here.

0:12:09.2 Peter: Right, and the primary's, what, in May, right?

0:12:11.3 Michael: Yeah, the primary is in May. Absentee voting for the primary starts, I think March 30th or something like that. But even that was like a full two-plus months after the District Court put down its rule. So Kavanaugh pulls a sneaky move, right, he says Purcell's not like iron-clad, and you can overcome this presumption of not changing laws if you follow this test I've just completely made up precisely for this case, so that this case will fail my test.

0:12:43.9 Michael: And one of those rules is, he says, you can only require changes if they are at least feasible before the election without significant cost, confusion or hardship. Now, Purcell says nothing about cost, it says nothing about hardship, and the only confusion it's concerned with is voter confusion. But Kavanaugh says, look, this can't pass this test, because it will be really expensive and really hard for Alabama to fix their racist maps, and the voters might not be confused, but the candidates would be really confused. They wouldn't know what primary they're running in, and that's really hard on the candidates, and so it's like, who fucking cares?

0:13:33.1 Peter: But also, isn't it like... So Kagan has a dissent that I think is pretty good, but also sort of boring in a Kagan way, but there is one part where it bangs, where she points out something that I didn't really encounter until her dissent. She says, well, it only took them a week to draw this map in the first place.

0:13:51.6 Rhiannon: Yeah. How hard could it be, right?

0:13:53.9 Peter: Exactly. How hard could it be to redraw it? Also for the record, you could draw a fair map in 10 minutes. I mean, you could just chop it up, right, if you really wanted to just do a... No [0:14:04.1] ____ look it, just chop it into seven pieces.

0:14:07.4 Michael: The plaintiffs provided 11 maps they thought were fair. The state could just adopt.

0:14:12.1 Rhiannon: That's what I was just about to say. Not only did this racist map come out of whole cloth, like in a week, right, the plaintiffs provided many alternative non-racist maps that they made on their own, right, which showed that, again, two majority Black districts could have been created in Alabama and still abided by the principles that the state of Alabama said that they were abiding by when they created these maps.

0:14:38.9 Michael: And so my opinion is if the state is disenfranchising its minority residents, then maybe they should have to pay a lot of money and have to work late hours to fix that. Maybe it's okay if candidates who hoped to benefit from racist maps are in limbo for a little while before they find out if they really do get to ride a racist wave, or if they have to really compete on an even playing field. Like I don't give a shit, why should anybody give a shit? I don't think the Constitution gives a shit, that's for sure. And I don't think that's inconsistent with Purcell.

0:15:09.6 Michael: And another thing that jumped out to me reading Purcell was like, like I said, they got into the merits a little bit and it was about this voter ID stuff, and you could say this is all bad faith bullshit when it comes to voter ID. But one thing the majority said is that voter ID laws are important, because even if there isn't actually fraud, if people think there's fraud, if they feel like their vote is being diluted or made meaningless by fraudulent votes, they might disenfranchise themselves, and that that's a concern.

0:15:45.2 Michael: And so, just imagine here an opinion where you're like, hey, all your voters being packed into one district and the rest of them being cracked amongst the others, that might make Black voters feel disenfranchised. That might make them not show up at the polls, that might in fact disenfranchise them, not just make them feel that way. So the very concerns animating Purcell, both on the merits and on the pragmatic aspects, point the other way, in this case. They point towards enfranchising Black residents and making the state work to ensure that happens. It's offensive bullshit that he pulls here, it's total nonsense.

0:16:25.8 Peter: Yeah. So what popped out to me is the past couple of years in these voting rights cases, the Court's been leaning on Purcell, they've been saying, well, you can't alter the election rules to close to the election, that's the Purcell principle, and it's just... It's an example of how formalism creates the aura of rules and structure. So again, Purcell is a case where the Ninth Circuit halted the implementation of a voter ID law essentially during the election, meaning they said, well, look, we'll figure out whether this law is illegal after the election, in the meantime, you can't enforce it.

0:16:58.4 Peter: And they provide no written explanation, no reasoning, they just halt the law. And the Supreme Court says, well, hey, that doesn't make a ton of sense, you can't just halt the implementation of a law without explanation while an election is still happening. And so from that very specific set of circumstances, you get the so-called Purcell principle that courts can't interfere with election rules too close to the election, at least not without any good reason. Completely made up, but not totally unreasonable.

0:17:29.2 Peter: And then you see these other cases where the boundaries of that rule get stretched a bit as the Court starts to apply it in these different situations. It'll be farther from the election, maybe, like it is here, or the election rule that's being altered by a court is a little bit different. Each case takes one step farther away from the original circumstances in Purcell, but to a casual observer, it still makes sense, because each case becomes a justification for each subsequent case. First there's rules made up, and then you have one case that follows that rule and another case that follows the rule, and all of a sudden it starts to look like a real rule, a real line of jurisprudence.

0:18:05.3 Peter: So imagine a case that says you have to stand at least two feet away from a fence at all times, right. And then there's a case about a guy standing three feet away, and the court says, well, if the principle is you can't stand too close, so if two feet's too close, makes sense that three feet is too. And the next case is four feet, and they're like, well, three feet's too close, right, on and on and on, until all of a sudden the rule is 20 feet or whatever. Each case was built on the logic of the prior case, but at the end, you're very far from the original principle.

0:18:37.5 Peter: And so what started here as you cannot strike down an election rule without explanation in the middle of an election is suddenly you can't ask Alabama to redraw its congressional map several months before the election starts, just because it violates the Voting Rights Act. But the Court is imagining that it's adhering to the same principle in both cases.

0:18:58.9 Rhiannon: Yeah, exactly.

0:19:00.5 Peter: This is how formalists work, right? They present themselves as following these rules, but if you start to peel back the layers, the rules aren't really there. They have simply created the illusion of rules, and the fundamental irony is they've done a complete 180. They're doing exactly what the Ninth Circuit did in Purcell. The Ninth Circuit struck down a voter ID law without providing an explanation and said, "We'll address whether it's legal after the election."

0:19:28.1 Peter: Here, the Court is preventing the enforcement of the Voting Rights Act without written explanation and saying, "We'll address it after the election." Exact same thing, exact same thing. So not only does their rationale bear no real resemblance to Purcell, they've actually violated the principle that they claimed to be upholding in Purcell.

0:19:48.2 Rhiannon: Right.

0:19:48.7 Michael: Right, it's unbelievable. It's truly... We're so fucked.


0:20:00.2 Peter: Yeah, there's something about these voting rights cases, man, it just fucking gets me. I really feel like part of taking care of your mental health nowadays is just like, "Prepare to not really live in a democracy," mentally. Prepare yourself for this stuff to just not work at all, and for the rhetoric of democracy to completely fall by the wayside. You need to get ready.

0:20:18.7 Michael: Peter's previewing the second half of this episode. Get excited.

0:20:25.3 Rhiannon: This feels like a good time to take a break.

0:20:29.5 Rhiannon: Okay, we are back.

0:20:31.0 Michael: Okay. So there's some other bad stuff going on here, which is that this is essentially a license for the states to basically delay as long as possible, so that they can issue a map that's really unconstitutional, but oh, too late to do anything about it. And that's not an exaggeration. Kavanaugh even says in his concurrence that states can change the rules close to the election even if judges cannot. And so, for one thing, I don't think that comports with Purcell, which again, was very concerned with voter disenfranchising.

0:21:08.2 Michael: But the other thing is that, yeah, it basically green lights for the states, like the District Court here moved extremely fast and the plaintiffs filed this case within hours of the maps being released. So this went almost as fast as legally possible, and the Court is still saying it wasn't fast enough. And that yeah, that's basically just telling the states, look, go ahead. You get one free election with unconstitutional maps, at least one free election with unconstitutional maps. It's an awful, awful incentive structure.

0:21:45.6 Peter: Even if the Supreme Court next year says, "You have to fix this map," they can just fix it right before the next election and do another racist one. Bam, the same principle.

0:21:54.3 Rhiannon: Yeah. Right. Why not? Under this reasoning, exactly.

0:21:57.7 Michael: Every election. Oh, sorry, too late. There's a new racist map, sorry.

0:22:03.8 Peter: Foiled again.

0:22:05.2 Rhiannon: So we should also talk about efforts at killing the franchise across the country, right. This isn't just a problem with Alabama. Democrats and Republicans, both parties do gerrymander, but Republicans especially are on a wave of voter disenfranchisement and diluting the vote in many different ways, using many different methods, we should say. One example, in Wisconsin, the state GOP there is currently trying to jail election officials in an effort to prove that the election was stolen from Trump. The state assembly speaker in Wisconsin is using about $700,000 in taxpayer money to fund an investigation into the 2020 election.

0:22:45.7 Rhiannon: This is spearheaded by a former Supreme Court of Wisconsin justice, and that justice has subpoenaed a bunch of election officials and other city officials and asked to interview them behind closed doors. They basically refused to do so, we'll be interviewed out in the open in front of a legislative committee, and do you even have this power to make us interview behind closed doors? Fuck off, right? But the Justice has responded, this former Justice, has responded by asking a judge to jail these people, to put them in jail. This includes the mayors of Madison, Green Bay, Racine.

0:23:24.5 Rhiannon: And so, to be clear, the question of whether Wisconsin's 2020 presidential election was fraudulent has been asked and answered, of course, many times over with audits, investigations, all sorts of stuff. And the GOP there just doesn't like the answers they've been getting, so they keep inventing new reasons to continue their investigations, and they're now talking about jailing politicians and election officials who aren't playing along with their silly charade.

0:23:57.7 Rhiannon: So again, this is straight up fascism. We say it a lot on the podcast, but jailing politicians and election officials who aren't talking to you in your sham investigation is fascism. That's authoritarianism. Turning to Arkansas, there's another similar Voting Rights Act case, similar to this case going on right now, that alleges that Arkansas engaged in a similar racial gerrymander. In that case, a Trump judge held that the plaintiffs, who were the NAACP of Arkansas and others, that they don't have standing to challenge the maps. He said there's no private right of action in Section 2 of the Voting Rights Act.

0:24:38.3 Rhiannon: And just want to highlight, this is a pretty radical argument that's never won in court before, even though Gorsuch and Thomas have both signaled in concurrences a few years ago that they are sympathetic to this kind of argument. Look, if this case is upheld, it's basically the end of the Voting Rights Act. It basically means that all Voting Rights Act lawsuits would have to be brought by the Department of Justice, they can't be brought by independent groups like the NAACP, and that would stretch the Civil Rights Division to the breaking point, if you think about how many of these lawsuits have to be brought. The vast majority of Voting Rights Act lawsuits are brought currently by private parties.

0:25:20.2 Peter: And look, you say it's a radical argument, but it's more accurate to say that it's just not the current law.

0:25:25.7 Rhiannon: That's right, yes.

0:25:26.3 Peter: When you say Gorsuch and Thomas have both signaled in concurrence that they're sympathetic to this argument, that's another way of saying that the majority wasn't. The majority of the Supreme Court did not buy this argument, and here we have a Trump judge saying, "Well, let me just toss this up to the Supreme Court and see what happens," right? Fuck it.

0:25:43.9 Michael: Yeah, exactly. They've seemed pretty crazy lately, so let's push it.

0:25:48.3 Peter: Yeah, the vibes are good, let's toss it up.

0:25:50.9 Rhiannon: Yeah, exactly. Shifting to Texas, there's a new law with new stupid rules about mail-in ballots here in my home state, so if you're voting by mail, you have to apply for the mail-in ballot, and this new provision requires that you put either the last four digits of your Social Security number or your driver's license number on both the application for the ballot and your ballot once you send that in. But the rules require that you use the same number, like you either choose the last four digits of your Social Security number and you put that on both the application and your ballot, or your driver's license number, that you put that on both the application and the ballot. But people naturally just don't remember which one they chose on the application, right? I don't remember if I put the last four digits of my Social Security or if I used my driver's license number, I have both of those memorized, right, but if they write the wrong one, then their ballot is rejected.

0:26:47.6 Peter: Well, I'm sure that it hasn't impacted that many people, though, right?

0:26:52.4 Rhiannon: Let's talk about that. So in El Paso, for example, where the majority of voters are Latina women who vote Democrat, so far in primary elections in El Paso, this has resulted in more than 40% of the mail-in ballots being rejected.

0:27:07.6 Peter: 40%, how, dude, how?

0:27:11.6 Michael: I saw it was 40% in Houston as well, in Harris County.

0:27:16.3 Peter: Unreal.

0:27:16.4 Rhiannon: Yeah, it's just wild. So just want to kinda take us through a little survey across the country of how disenfranchisement is working right now.

0:27:26.5 Michael: Right. This case is just one piece of a broader Republican effort at ending American democracy.

0:27:33.0 Peter: Yeah, I know, like Rhi, you mentioned the Democrats do this too, and you sort of have to say that, but like fucking miss me with that shit. If you just put this to a vote right now, Democrats and Republicans, who would get rid of gerrymandering by everyone nation-wide, every Democrat would vote for it, and every Republican would vote against it. I mean, that's all there is to it.

0:27:50.4 Michael: Yeah.

0:27:52.4 Peter: Okay, let's take a big step back and talk about voting rights in America under the Supreme Court's jurisprudence. So in Reynolds v. Sims, the Supreme Court held that we must adhere to the principle of one person, one vote, right. This Court hasn't explicitly overturned Reynolds, because they don't have the balls to do that, but there's no way you can say with a straight face that that case still stands, right? In Rucho, like Rhi mentioned, the Court said that while racial gerrymandering is illegal, political gerrymandering is allowed, right. So a party can endeavor to intentionally dilute the vote of certain citizens based on their party affiliation, and that is fine according to the Court.

0:28:40.8 Peter: No equal protection issues there, no free speech violations there somehow, and the result has been this sort of race to the bottom, Republicans and Democrats are essentially engaged in a death spiral, each making their own states less democratic, because if you stop, you feel like you're gonna lose, the other side's gonna do it worse, and you will lose your power in the House of Representatives. And again, not to say it's a problem on both sides in any meaningful sense, it's happening on both sides, but the actual problem lies on the right.

0:29:13.2 Peter: So the basic question at 30,000 feet is what voting rights do states owe their citizens? Is a person guaranteed a meaningful right to vote, and the conservatives are steadily, both at the jurisprudential level and in Republican politics, are steadily coalescing around answering that question with like, "No, not really."

0:29:37.4 Rhiannon: Meh.

0:29:39.0 Michael: Yeah.

0:29:39.6 Peter: The plan is to revert to the antebellum understanding of the franchise as something afforded to a favored slice of the population. And I mentioned this in a voting rights episode last year, I think, but when conservatives talk about states' rights, like states' rights to run their own elections, you have to keep in mind what they mean, because they make it seem like they mean local democratic control, but in reality, they mean state governments, which are often extremely undemocratic and working to make themselves even less democratic, right?

0:30:14.9 Peter: This map does not reflect the will of the state of Alabama unless you exclude at least every Black person, maybe every Democrat. It's not the will of Alabamans, it's the will of the Republican-controlled legislature, which specifically does not care about a huge chunk of its citizens.

0:30:34.4 Rhiannon: Exactly.

0:30:34.5 Michael: Right, that's right. I think we're gonna wrap up on a dust-up with the Harvard Law Review.

0:30:40.2 Rhiannon: Yeah, a different sort of voting rights drama.

0:30:43.0 Michael: But before we get to that, I do want to say one more thing about this case, which is that we have skipped over a big piece of it, which is like this case called Ginkles or Jingles, I don't know that there's a consensus on how that's pronounced, I listened to a podcast and one person pronounced it Gingles and one person pronounced it Jingles.

0:31:03.1 Peter: Jingles is funnier.

0:31:04.8 Rhiannon: Jingle berries.

0:31:06.4 Michael: And so, Gingles provides sort of the test for how this section of the Voting Rights Act is interpreted, and there's all this stuff about, well, if the District Court applied the test properly, then its decisions would stand, even if we want to revisit Gingles and blah, blah, blah, and what the signals about how they're gonna treat that case. And I think if you go read a lot on academic blogs, and Twitter, and listen to academics talk about this case, that's what they're coalescing on as important, and I think it's not important.

0:31:39.3 Michael: I think, like we did a whole episode on this case that I think was pretty comprehensive without mentioning it, and it is illustrative, illustrative? It's a good illustration of the specific type of pathology that plagues law professors, which is their inability to see the big picture on this stuff, and they get lost in the jurisprudential weeds, it doesn't... The contours of the Gingles first factor does not matter, they think it doesn't.

0:32:12.1 Peter: Right, so speaking of professor pathology...

0:32:17.4 Michael: Yes.

0:32:19.2 Peter: We are coming off the tails of a Twitter drama.

0:32:20.4 Michael: Yeah.

0:32:21.0 Peter: Harvard Law Review tweeted a link to an article, and here's the tweet: Free and fair presidential elections are a cornerstone of American democracy, but are they required by the Constitution? This note says no. Arguing for state discretion to regulate how and whether presidential elections occur.

0:32:45.3 Rhiannon: Arguing for state discretion, again, underline that.

0:32:49.6 Michael: Arguing for state discretion to not even hold elections, something that hasn't happened since 1876, by the way.

0:32:56.4 Peter: So they link to student notes. If you are on the Harvard Law Review, you can publish a note, including shortly after your graduation, which is essentially just an article, except it's worse than the average article because it's written by some dip shit kid. And so what happened was like some people retweeted this and said like, that's pretty fucked up, Harvard.

0:33:21.5 Rhiannon: Yeah, wait a second.

0:33:23.3 Michael: I don't know that I like this.

0:33:25.2 Rhiannon: I have questions about this. It doesn't make me feel good.

0:33:26.8 Michael: There's a rising fascist movement in this country. I don't know if you've noticed.

0:33:31.8 Peter: Yeah, a lot of people are looking for academic justifications for their anti-democratic tendencies, and perhaps handing them those justifications is a bad move. Just floating it. Now, Harvard keeps the authors of student notes anonymous, so people were calling for the publication of his name, and by people, I mean, like me. I asked for it online, because I felt like when you publish something like this, maybe you should have to attach your name to it, you know.

0:34:00.0 Michael: I agree.

0:34:01.8 Peter: All we really know is that he's either a current Harvard law student or a recent grad, and based on the content of his note that he's some kind of sexual pervert. So Harvard Law Review is not exactly the tightest ship when it comes to preventing leaks. So his name is Alexander Guerin, I think I'm pronouncing that right. Graduated Harvard Law last year, and he is a clerk on the Fifth Circuit.

0:34:32.2 Rhiannon: Well, well, well.

0:34:32.7 Michael: Federal court of appeal.

0:34:35.9 Peter: Actually for one of the more liberal judges, apparently, but just incredible, because a big part of the reaction, the pushback to people being like, what's the fucking person's name, like who wrote this, is like, you want to doxx some student, and it's like, actually, he's a federal clerk, which like...

0:34:52.2 Michael: He's sitting in the literal halls of power.

0:34:54.4 Peter: Right. If you're a recent Harvard Law grad now sitting on a circuit court of appeals, you are going up, you are getting more power. But even that aside, in a vacuum, a federal circuit court clerk is probably more, on balance, more powerful than your average state legislator, for example. More powerful federal clerks, like the more influential federal clerks, are probably more powerful than lower court federal judges. I mean, this is not some nobody.

0:35:22.3 Michael: And this is not like some academic exercise, right, this is a fucking resume, this is an announcement to the Republican party. It's like, hey, next time you're in power and you're looking for a 30-something pencil-necked dip shit to give a lifetime appointment, judgeship to, I am here to trot out the very worst shit you could possibly come up.

0:35:50.2 Peter: Give me an hour to clear my hard drives and I'll be in front of the Senate before you know it.

0:36:00.1 Michael: I will say I gave some serious thought to whether this kid's name should be revealed, whether that's ethical, how I feel about that, whether that was appropriate for Balls & Strikes to do, if they hadn't, whether it'd be appropriate for us to do, whether it's appropriate for us to amplify that by saying his name to a much wider audience, because Peter and I are pseudonymous. But what Peter described is why it's not really comparable. Look, I'm some dip shit sitting in a fucking bedroom with my dogs on my lap talking into a mic. This kid is sitting in a federal court of appeals. The one that has currently become the favorite of the right wing to bring all their crazy shit so that they can get favorable judges in favorable rulings before going up to the Supreme Court, writing decisions.

0:36:52.3 Rhiannon: And his platform is not only those decisions, but the Harvard Law Review...

0:36:56.8 Michael: Right. One of the most influential legal journals in the country, if not the most.

0:37:02.4 Rhiannon: In the world.

0:37:03.9 Michael: Yeah. So yeah, I don't think it's comparable. Fuck this guy. If he wants to help the propaganda effort for ending American democracy in the name of white supremacy, he should have to fucking put his name on it. And if you don't think the Harvard Law Review should change its policy about unsigned notes, then they shouldn't fucking publish this. I mean, I don't think they should publish it regardless, but they definitely shouldn't publish it anonymously. It's ridiculous. It's irresponsible, it's dangerous. Fuck that. Fuck this guy.

0:37:36.4 Peter: Yeah, I don't understand why we have to entertain the idea that every fucking thought that some student has must be published by Harvard Law Review, right. And I made a joke, like, I could write a constitutional justification for genocide, the argument that genocide, if it fits certain contours is constitutional, you could write that piece.

0:38:00.0 Rhiannon: Sure.

0:38:00.9 Peter: And if I did, and it was published by Harvard, would you read that and think, well, this is a fascinating thought exercise, or would you think, what the fuck are you doing? Why would anyone ever want to make this case, why would you risk even the slightest chance of giving ammunition to someone who wanted to use it for the purposes of violence and murder or whatever. But you could write that article, right, and every defense that's been trotted out for this piece could be trotted out for that one too, right.

0:38:28.8 Peter: And I think he should thank us, because they're gonna fucking march him right up the ladder on the right. There's no such thing as being cancelled on the right, you know? He's gonna be talking to Tucker Carlson in no time, and he can write me a personal letter of thanks, because that fucking tweet had no likes before I got to it, okay? You're welcome, Alex.

0:38:48.4 Rhiannon: Yeah, and so we should talk about the law professor response, the law Twitter response to any criticism of the note in the Harvard Law Review. I feel like there's two categories of law professor responses. One was, this person's name does not need to be published, you can engage with the ideas without knowing who the author is. Okay, so there's that stupid fucking category. And then the other category is, well, actually, what this student or recent grad is pointing out is a problem actually in the Constitution, an oversight, if you will, and he's raising the alarm, and now we know that there's a major problem in the Constitution having to do with voting, and we should thank him.

0:39:37.9 Michael: Oh, my God. How do you think they were able to type that with only one hand, while the other one's just stuck in their pants. It's a lot of hand-eye coordination.

0:39:47.4 Peter: There's something so offensive about like, well, you're not engaging with his ideas. Well, actually I engaged with it real quick, reached a conclusion and then moved on to the only remaining question which was who wrote it?

0:39:57.0 Rhiannon: Right, right, exactly.

0:40:01.1 Peter: But also a lot of them were just accusing people of not reading it, and it's like, okay, alright, so first of all, I did read it. And it's not good, it's not good. It's poorly reasoned, it assumes most of its conclusions, glosses over several reasonable liberal interpretations of the amendments that do reference voting rights, which is crucial to the thesis, it does not mention Section Two of the Fourteenth Amendment, which penalize states for restricting the franchise, and is also crucial to the thesis. So yeah, the article is a middling trash, but more than that, this is not some kid trying to describe to you what the Constitution means, it's a federal court clerk trying to argue normatively for what he thinks the Constitution should mean.

0:40:45.5 Peter: And his vision of it is disgusting, fascist bullshit. So several people are making arguments that people are just trying to cancel this kid and not engage with the ideas and sorry, that's just...

0:41:00.2 Rhiannon: Wrong.

0:41:00.3 Peter: Absolute bullshit. Alex, I don't want to cancel you, buddy, I just want to talk, okay?

0:41:05.3 Michael: I was gonna say, I don't want to cancel you, I just want to meet you in a dark alley.

0:41:10.8 Peter: We just want to get you help, Alex.

0:41:12.1 Michael: A particularly good example of some of these pathologies Peter and Rhi are describing was this professor, Josh Chafetz, who said: "Everyone's treating the Harvard Law Review note as a conservative defense of the position it takes, I prefer to read it as a radical critique of our juristocratic constitutional order."

0:41:32.9 Rhiannon: Woah.

0:41:33.6 Peter: That's a weird way to read it.

0:41:35.2 Michael: Which is like saying, hey, this piece of shit that's awful that you're criticizing, what if you pretended like it was a beautiful piece of pie? Wouldn't you want to read it? It's like, no, fuck you, it's garbage, and I know it's garbage, and this is the worst sort of... It's not even treating your ideological opponent with good faith, it's like giving the best possible strained reading of anything they say. It's fuck off. Everybody knows what's going on here, and you have to be a moron to not. And I don't think Josh Chafetz is a moron. I don't. And you know, he's supposed to be one of the good ones.

0:42:16.4 Michael: And this is a problem we talked about recently when we were... We did a symposium on legal pedagogy at UVA, and we talked a lot about how even professors who will say judges are politicians and the Supreme Court engages in politics, like still don't get it, and I think this is a good example. If your theory of politics sucks, it doesn't matter if you get it, right, if you can't identify this quite easily as propaganda designed to further this kid's career on the right and designed to help give cover to the current anti-Democratic movement coming out of the Republican party, then your theory of politics is fucking garbage. It is. And you don't have anything useful to say about it, like you don't. If you can't clock that, you don't have anything useful to say. And I'm sorry.

0:43:11.3 Peter: He's calling it a radical critique of our juristocratic constitutional order. First of all, I take offense, because we are the only mainstream radical critique of our juristocratic constitutional order, and it's offensive to me personally. But more importantly, is this really, because it seems to me like the sort of standard modern conservative approach of, you strip away all the jurisprudence until you're left with an antiquated framework that you like.

0:43:34.9 Rhiannon: Right, exactly.

0:43:36.2 Peter: I mean, is that not what they're doing with non-delegation too? It's what they're doing in every fucking field.

0:43:40.1 Rhiannon: I hate this framing too, I prefer to read it as whatever I want to read it as, fuck your preference, dude.

0:43:47.7 Rhiannon: Like that's not what it is.

0:43:49.6 Rhiannon: Like who does that serve to change it, to whitewash it, right? Who are you caping for?

0:43:53.1 Michael: The other thing I wanted to say was like, yeah, we've been critical of the federal Constitution's protections of democracy and the right to vote in the past, but they're not entirely absent, like Peter said. The fucking Fifteenth Amendment literally says, the right to vote shall not be abridged. That's a statement, right? This stuff pisses me off from law professors when they say shit like this, like Chafetz following up saying, maybe our Constitution as interpreted actually doesn't require democracy because maybe it's a bad Constitution. As interpreted by who? Because if you want it to be useful, you should either be pointing this out for the fascist shit it is and the role it's playing in the conservative movement, or you should be trying to build a counter jurisprudence for liberal judges to hopefully seize upon when they're in control, maybe built around the Fourteenth and Fifteenth Amendments, and talking about how there is something to work with in the Constitution.

0:44:51.5 Peter: I mean, there's a reasonable argument that voting rights are broadly protected under the Constitution, and as long as that exists, then why would we ever go to the undemocratic... I mean, just calling it undemocratic almost undersells it, but the anti-democratic framework that kids like this are pushing.

0:45:08.6 Michael: Yeah, I think there was one election in Colorado in 1876 after the ratification of the Fifteenth Amendment that did not use the popular vote to select presidential electors, and then 150 years of uninterrupted popular vote. I think that's a good place to start for saying, yeah.

0:45:28.9 Rhiannon: This is what democracy requires.

0:45:30.9 Michael: This is what the Constitution requires, right? This is what the Fourteenth and Fifteenth Amendments require. And we have the majority of American history, almost the entirety of American history post the ratification of this amendment as evidence. And if you don't like it, fuck off. Because this is precisely what the right wing did with Heller and this right of the people to bear arms not being abridged in the Second Amendment, but with a lot less to work with. So go make yourself useful, don't fucking defend some 25-year-old fascist prick. Go do something worthwhile with your position. Like what the fuck, like what is wrong with these guys. It pisses me off. It's just useless. Even the best ones, even the best professors are by and large useless.

0:46:20.6 Peter: Yeah, and Michael, you mentioned that we've been... Or at least, we've talked in the past about how the right to vote in the Constitution as weak because it's not explicit, it's not in the Bill of Rights per se. But I will say this, I think when I started the podcast, and I don't remember exactly how I talked about this in early episodes, but I have been brought over to the position that voting rights are much more robust in the Constitution than I thought even a couple of years ago when I wasn't looking into it as much and I wasn't researching for the podcast every week. But they don't fucking talk about that shit in law schools, present it the opposite way, as if democracy is sort of bestowed upon us but not owed to us under the Constitution, right?

0:46:58.8 Peter: And I just don't think that's right. I think that there is a very reasonable, grounded interpretation of the Constitution that involves a broad reading of voting rights.

0:47:09.2 Michael: Yeah, the Constitution as interpreted by a century-plus of old white dudes who didn't even think Black people were full human beings, who gives a shit how they interpreted the Constitution? Like, how do you interpret the Constitution? How do you want to interpret the Constitution, how do you think it should be interpreted? That is important, that is interesting, and that is fertile ground, and that's something you could be passing on to your students, rather than this passive bullshit getting steam-rolled by 25-year-old losers who've never been laid. They are failing their students, they're failing the country, I believe that, I'm sorry. I'm sorry, 'cause I like a lot of these guys, they're smart and they do some good work, but they're just not up for the fight, and it's a fight, it's a fight that's happening in their institutions, it's a fight that's happening in their field of expertise.

0:48:05.6 Rhiannon: Yeah, and they don't think it's a fight, and they're not ready for it. Yeah, I think that's a really good way to put it, Michael.

0:48:14.9 Leon: Next week, long-requested episode, we're talking about Ginni Thomas. And it will be a free episode, because we're talking with Jane Mayer, who wrote a New Yorker piece about Ginni just a few weeks back, so we're gonna be digging in, digging into the Ginni problem.

0:48:37.6 Michael: Yeah, I am.

0:48:40.1 Peter: Follow us on Twitter @fivefourpod, subscribe to our Patreon,, all spelled out. We'll see you next week.

0:48:49.2 Rhiannon: Bye.

0:48:51.9 Michael: Bye-bye.

0:48:53.1 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:49:19.1 Michael: That guy looks like a virgin. If he's had sex he had to pay for it, I'm sorry.