HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP: Case is submitted. We'll hear arguments next in 18-44, City of Mobile against Bolden and the consolidated case.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Mobile v. Bolden. This case from 1980 is about voting rights. Specifically, it's about the difference between merely getting to vote and actually having a say in who gets elected. Starting in the Jim Crow era, the city of Mobile, Alabama used at-large voting to elect their city commissioners, a system that ensured that local leaders representing majority Black districts were chosen by the city's white majority. A Black man by the name of Wiley Bolton, along with other Black residents, sued the city of Mobile, arguing that at-large voting diluted the Black vote so much that their votes didn't matter. and was therefore in violation of the Constitution and the Voting Rights Act.

[ARCHIVE CLIP, Wiley Bolden: It seemed to me it was a classic case where the city had used at-large voting to prevent the Blacks from being elected. But the Supreme Court in the last several years has brought on this business of intent.]

[ARCHIVE CLIP: It's almost as though they're saying that if you've been discriminating for a long time, it's okay. If you just started it recently, it's bad.]

Leon: The Supreme Court ruled against the plaintiffs, citing a lack of evidence demonstrating that at-large voting was implemented with the intent to discriminate. This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil rights to fall apart like my March Madness bracket on day one.

Rhiannon Hamam: Already?

Michael Liroff: Already?

Peter: Well, that's just a prediction.

Rhiannon: [laughs] I was like, it hasn't even started.

Michael: I was like, yeah, I haven't even filled out my bracket yet. Has it already started? Did I miss it? Oh, you're—because this is going to be out in a week, and by then it'll have fallen apart.

Peter: I am very confident that the opening weekend of March Madness will be devastating for my bracket. My champion will lose.

Michael: Yes.

Peter: It's gonna fall apart immediately; it always does. I have the worst luck at March Madness historically. One of the things that I'm worst at, I'd say overall, overall in the world. Like, I don't have a good vertical leap, and then this.

Michael: [laughs] One of my very, very close—probably my best friend is from the Tampa area and a longtime Gator fan. And I just keep going back and forth on whether I should pick Florida to lose in the first round or to win it all. I feel like it's gotta be one or the other. You know, I'm like, "Do I root for my friend or do I root against my friend?"

Rhiannon: That is the only way to engage with March Madness, I think, is like, what personal grudges do you have? What bit do you have ongoing, right?

Michael: Right. Exactly.

Rhiannon: Yeah.

Peter: My ongoing bit is every year, a small, extremely Christian college makes a run. And so I choose one. I look through these colleges, and I choose one, and I'm like, "This is the one that God is going to choose to get to the Sweet 16."

Rhiannon: This one's the kookiest this year.

Peter: Yeah. Every year it's upsetting. And I don't like college basketball. I don't know these colleges, for the most part, you know? Like, I don't know anything about them.

Michael: Yeah.

Peter: And it's embarrassing. I don't like how people talk about it. People be like, "Oh, Iowa State, you know, has a good defense." I'm like, "What are you talking about? I know that you didn't—that you didn't know that."

Rhiannon: Right.

Peter: Going into this. Don't fucking talk to me like I'm an asshole, you know? All right. Today's case: City of Mobile v. Bolden. This is a case from 1980 about voting rights, specifically about racial discrimination in voting. In the Jim Crow era, the city of Mobile, Alabama, instituted what is called at-large voting for its three city commissioners. What that means is that instead of dividing the city into three districts and having each district vote for their own commissioner, the entire city would vote for all three. The functional result of this system is that the majority voting bloc in the jurisdiction can dictate the result of the vote for each city commissioner, right? So after the Voting Rights Act of 1965 passes, Black people could now vote, but they realized their votes functionally did not matter because with at-large voting, the white voting bloc in Mobile would just vote for their preferred candidates for all three city commissioners, and the minority Black bloc would essentially be irrelevant.

Peter: So they filed a lawsuit saying that this scheme functioned to discriminate against Black voters, and therefore violated the Constitution and the Voting Rights Act. But the Supreme Court, in a six to three decision, said it's fine.

Rhiannon: Yeah, totally good. And, you know, last premium episode, we talked about the Powell memo. Justice Powell, you know, being like a business guy, a business and money and politics guy, writing a memo that sort of set the stage for the money in politics that we see today. And he's got an interesting place in this case as well as not just a business guy, but a racist guy.

Michael: Often a lot of overlap in those Venn diagrams right there. [laughs]

Rhiannon: Right? Right. Yeah, an early model of that Venn diagram. But yeah, let's talk about Alabama. Let's talk about voting in Alabama. Very dark history from that state on voting. Shelby County, the case that gutted the Voting Rights Act, that came out of Alabama. Let's get into some of that history, and how Alabama really entrenched over generations racist voting and elections policy into state law. So in 1901, delegates in the state of Alabama came together to rewrite the state constitution. We're redrafting it, we're starting from scratch, we need a new one. Now why did they do that? The chairman of that constitutional convention told everybody why they were doing that. He opened the state constitutional convention. He opened those proceedings by saying that their goal was to, quote, "Establish white supremacy in the state." Straight up.

Michael: Whoa! What?

Rhiannon: [laughs] Straight up. 1901. Constitutional convention is called in the state of Alabama. Why are they doing it? They need to be white supremacists to establish white supremacy in the state by law. In the law.

Michael: Mm-hmm.

Rhiannon: So at that time, Black residents made up about 45 percent of the state population. You know, this was a threat to wealthy, property-owning whites in the state, that Black voters would link up with poor white people in the state and kind of take majority control over elections, right? Like, actually control who got elected if that voting bloc was formed. So in the new state constitution, Alabama adopted a poll tax and a literacy test, also some property requirements to be able to vote, some requirements around property ownership and that kind of thing. And of course, people convicted of certain crimes were not permitted to cast a ballot. Obviously, all of these requirements, impediments to voting, disproportionately fell on Black voters.

Rhiannon: Now turning to Mobile, Peter kind of laid this out, but in 1911, just 10 years after the new constitution was drafted and ratified in the state of Alabama, the city of Mobile changed its city government to that three-person city commission. So, you know, in many cities today, you've got a mayor, you've got a city council, you know, lots of local politicians, elected officials who handle city government. In Mobile at this time, the system was that the city commission, this three-person commission, they had all executive, administrative and legislative power in the city. And like Peter said, these city commissioners were at-large positions, meaning the whole city voted on all three. They aren't representatives of certain districts of the city, that kind of thing.

Rhiannon: So this, of course, allowed the white voting majority to decide all three representatives, all three commissioners every election cycle. The VRA is passed in 1965, ensuring that Black citizens have a meaningful vote or, you know, that's the point of the legislation. And, you know, there's a lot of litigation that then follows the passage of the Voting Rights Act, right? And in this case, a class action was brought in the mid-1970s by Wiley Bolden and other residents of Mobile on behalf of all Black citizens of the city. And they argued that the practice of electing those city commissioners at large, unfairly diluted the voting strength of Black citizens, right?

Rhiannon: They had two arguments, actually. Not that this was a violation of the Voting Rights Act, but that it violated the 14th Amendment equal protection clause, and also that it violated the 15th Amendment, which gives everybody the right to vote, regardless of race. The federal district court, the first court that this class action landed at, agreed, said that this was a violation of the 14th Amendment equal protection clause, and the 15th Amendment. And of course, the city of Mobile appeals all the way up to the Supreme Court.

Michael: So before we continue, I think also, you know, Rhi didn't mention this, and it's something we talk about on the pod all the time, and it's a name you've probably heard before, but the history she just described is, in a very literal sense, the history of the implementation of "Jim Crow" in Alabama.

Rhiannon: Yeah. True.

Michael: Jim Crow. We say it all the time. The name comes from, like, a minstrel show in the 1830s, I think. A white guy who would dress in blackface to mock Black enslaved people, essentially. And there was a character named Jim Crow, and that's, like, used as a synecdoche for basically the entire white attitude towards Black people in the South from the early 1800s through the 1970s.

Rhiannon: Yes.

Michael: And yeah, like, it's to establish white supremacy in the state. Direct quote. That was the point, and these were the structures they put in place. And so this case is very much about, like, all right, we said you have to make Blacks equal citizens, but does that mean we have to fully dismantle the structures of Jim Crow? That's what this case is asking.

Rhiannon: Yeah, that's what it comes down to. Yeah.

Peter: So the plurality opinion, the controlling opinion here, is fairly simple and would feel very familiar to anyone who has read a Supreme Court voting rights opinion in the last 45 years. So Potter Stewart writes the opinion here, and he says even if the impact of a law is discriminatory, that doesn't matter. The law doesn't expressly discriminate based on race. Black people are still allowed to register and vote. And also, there's no evidence that the law was designed with a discriminatory purpose, so it's fine. He says, quote, "The 15th Amendment does not entail the right to have Negro candidates elected." Not entirely sure why we're still saying Negro in 1980.

Rhiannon: Yeah, it's bizarre, right?

Michael: [laughs]

Peter: I guess he was old, you know?

Rhiannon: Jarring.

Peter: Old habits. But yeah, more of a 1965, '67 sort of thing, right?

Michael: Mm-hmm.

Peter: But you know, I guess it's an ancillary point.

Michael: [laughs]

Peter: So he also says that the evidence of intentional discrimination was too thin here. The lower courts had found, for example, that the fact that no Black councilman was ever elected under the scheme, evidence is discriminatory intent. And the court says, "No, that's discriminatory impact." Right? Just because they raise a discriminatory effect doesn't mean the law was implemented with a discriminatory purpose. Now I want to say I actually think that this sort of case in theory is kind of tricky. The voting system definitely operates in this instance to subjugate the Black vote, but it's not a voting system that is necessarily racist, right? You could imagine a situation where Black voters are a majority and the system benefits them. You could also imagine a situation where race isn't as salient to the voting public, and the division between white and Black voters doesn't matter as much, right?

Rhiannon: Yeah.

Peter: Justice Stevens writes a concurrence where he basically says the focus should be on individual rights. We can't be an arbiter of the power of different groups, right? We're not trying to make sure that different groups have the same balance of power. But if you are a Black voter in the South at this time, you're probably thinking, "You know, it's a weird coincidence that these things always benefit the white voters and never us, right? Why is that? What is happening here? Why are these neutral voting systems always impacting us negatively?"

Michael: It's weird how we have an at-large thing here, but then, like, in Louisiana, they have, like, a state-level electoral college, and that works to disenfranchise Black people. How's that—it's just what? What's going on?

Peter: Right. Every state, every locality has their own "race-neutral" voting system that in one of the great statistical improbabilities of the modern world, always operates in favor of white people.

Michael: Yeah.

Peter: So this case gets sent down to the lower courts, and then not long after that, someone locates an open letter, written in 1909 by Frederick Bromberg, an Alabama state senator, to the state legislature. This letter was published in a newspaper, and in the letter he openly states that the purpose of the at-large voting system is to suppress the Black vote. He says, and I quote, "We have always, as you know, falsely pretended that our main purpose was to exclude the ignorant vote, when in fact we were trying to exclude not the ignorant vote, but the Negro vote."

Michael: Oh, my God!

Peter: Quote. So what he's saying is, like, all these things that they're doing in the Jim Crow era—at large voting systems, literacy tests, poll taxes, property requirements, grandfather clauses.

Rhiannon: Yeah.

Peter: All of those things we pretend are just meant to ensure that, like, more educated people vote, but we all know that that's a lie and the actual purpose is to exclude Black people, right? So he's sort of saying very explicitly what everyone who's not a complete fucking dipshit knows about this moment in history, right?

Michael: And is there any better evidence than the fact that it was published in a paper? This wasn't, like, fucking uncovered in his personal effects, right? It's like, oh yeah, it's right there in, like, a letter to the editor or whatever.

Rhiannon: Yeah. It's not his diary. He's publishing it. Like, he's making it public.

Michael: He's like, "Everybody, look, we're all in on this, right?" Right?

Rhiannon: Yeah.

Peter: And that's the thing is it wasn't—it wasn't some complicated scam they were running. This is what everyone knew was happening at the time. And it's only, like, 70-odd years later that you can be like, "Hmm, what were they doing back in 1909 in Mobile, Alabama?"

Michael: "I guess we could never know their true hearts." Yeah.

Peter: So what's so interesting about this case in my mind is how clearly it lays out the defects in how lawyers think about the law. Like, running through the analysis here that the court does is the court's presumption of good faith. They presume that the law does not have a racist intention unless shown otherwise. And they presume that any disproportionate impact on Black people is therefore a coincidence, right? But this is a law passed in Alabama in 1909. This was a period when state governments, like Rhi was mentioning, across the South were actively attempting to disenfranchise Black voters, right? You have, like, new constitutions being passed in many Southern states in the 1890s and 1900s, intentionally designed to disenfranchise Black voters.

Peter: They follow that up with numerous other efforts to restrict the black vote—poll taxes, et cetera. Black voters had actually, before this period, become briefly powerful in the South during Reconstruction. And after it ends, white majorities are scrambling to ensure that it never happens again. This is very basic sort of Reconstruction and post-Reconstruction history.

Michael: Right.

Peter: The idea that a voting law passed in Alabama in 1909 should be presumptively non discriminatory is fucking insane.

Michael: It's insane.

Peter: It is ahistorical nonsense. The idea that actors within Alabama's state and local governments in 1980 were acting without discriminatory intent was absurd, right? But this is how the law operates. It assumes good faith in situations where it should not, and that allows bad actors to take advantage of it, right? And the only reason that this doesn't work out for racists in Mobile, Alabama is that someone finds the most preposterously over-the-top smoking gun piece of evidence you could ever imagine.

Michael: Right.

Rhiannon: Yeah.

Peter: Something that almost certainly doesn't exist in any other jurisdiction in the country.

Rhiannon: What's crazy, we were talking about this before in prep for this recording, this good faith presumption. Why does the law give the good faith presumption when it's easily presumed that Alabama, the city of Mobile, wherever at this time in the country is operating actually out of racist intent? That's the easy presumption to make and the realistic presumption to make and the—you know, the one that's accurate, like, the accurate presumption. But instead, you know, this good faith presumption, or starting at the basis that, you know, there's no discriminatory impact, there's no discriminatory intent, and you have to prove that up in impossible ways, it's so inaccurate to reality.

Michael: Yeah. I mean, I think this whole babe-in-the-woods routine is a great way to think about the Stevens concurrence. Like Peter said at the top, it was six-three. There was a four-vote plurality, and then there were two concurrences that just concurred in the result of overturning the lower courts. Stevens writes this thing. When I was first reading it, I was like, "I don't understand why this is a concurrence because he's like, 'This reminds me of gerrymandering.'" And I'm like, "Okay." And he's like ...

Rhiannon: Yes. We're listening.

Michael: And he's like, "Not only that, I think all sorts of gerrymandering should be unconstitutional. Not just racial gerrymandering, but political and ethnic and religious gerrymandering also." And you're like, "Okay." And then there's this sort of like—but then why are racial groups given a special privilege? And maybe it's only extreme gerrymandering, and this looks more like a normal gerrymander. And it just so happens that it works to a racial group's detriment. And like Peter said, you know, he works his way around to eventually being like, "Well, I don't want to be giving a racial group preference." And it's like, what the fuck are you doing? This is someone who is just, like, way too caught up in their own shit, right? Like, just sniffing their own farts and being like, "Smells great." [laughs] You know?

Rhiannon: And the reality is that a racial group is being given preference in this situation.

Michael: Right. White people.

Rhiannon: This decision reifies that racial preference, the racial preference being for white voters in the city of Mobile. So it's ridiculous. It's so ridiculous.

Michael: It's a very frustrating concurrence to read. And I mean, I don't know, I haven't seen any comments he's made, but I do feel like the Stevens from 20 years later would not have signed on to this opinion. I think he got a little more connected to reality somewhere along the line in his tenure.

Michael: Blackmun's concurrence is actually kind of interesting. I think it's almost defensible on the merits. His thing is he's like, "I do think just discriminatory impact should be enough, but if it requires intent, I think there's evidence of discriminatory intent here, too." He takes issue with the remedy. He takes issue with the remedy, which is that the court essentially said you have to have a mayor and council district. And he's like, "I'm not convinced you have to separate the executive and legislative functions here." And he throws out a bunch of other voting systems that could maintain a commission style, but still allow the Black residents of Mobile to elect representatives with multi-member districts or at-large districts and things like that.

Michael: And he goes through it and I'm like, okay, I get it. I get it in the abstract. Like, I get it in the academic sense. You might even be correct in the strictest sense. What you're really signing on to here is the white supremacist winning. And you kind of gotta know that, you know? [laughs] You kind of gotta know that, man. You gotta understand what's happening here. Like, it's disappointing. It's disappointing.

Michael: There's also a dissent. There are two dissents. I'm just gonna talk about one, Rhi will talk about the other. Justice White writes a dissent. This feels like a very much like they—to me, it feels like they discussed this and divvied up some of the points. It feels very much like Kagan and Sotomayor double team here, where White gets this very technical "This is why this case actually pretends to honor our precedents, but actually does great violence to our precedents." And goes in painstaking detail through these precedents from the early '70s, and why those precedents are correct and the plurality claims to not be touching them. And yet a faithful application of those precedents was followed by the District Court and the Court of Appeals, and it goes through all their fact finding, and why it deserves deference and things like that. Very technical, very—it reminds me a lot of Kagan.

Rhiannon: Yeah, yeah. We're upending the precedent here. There's a long line of cases that say we should be ruling one way, and this case is fucking that up, right? Justice Brennan does have a separate dissent, but it's not a separate dissent. It's like a couple sentences that just says, "I dissent because I agree with Justice Marshall." So that's why ...

Peter: But I guess not enough to just join. I don't understand what was going on with opinions.

Rhiannon: Yeah, I'm not sure.

Michael: Weird.

Rhiannon: So turning to Justice Thurgood Marshall's dissent, it's very good, as most Thurgood Marshall, you know, opinions are. He starts off this dissent by saying, "The American ideal of political equality, conceived in the earliest days of our colonial existence and fostered by the egalitarian language of the Declaration of Independence, could not forever tolerate the limitation of the right to vote to white, propertied males. Our Constitution has been amended six times in the movement toward a democracy for more than the few, and this court has interpreted the 14th Amendment to provide that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."

Rhiannon: Throughout Stewart's plurality opinion, they're mentioning Marshall's dissent, like, a ton of times, like, arguing directly with what Marshall says in this dissent. And a big thing that Stuart says in the plurality is that Marshall is saying that there's a constitutional requirement for proportionate representation.

Michael: Right.

Rhiannon: Stewart completely, completely obfuscating Marshall's argument, saying that, like, what Marshall wants is that, you know, if Black voters, for example, make up 40 percent of the population in the city of Mobile, that they get 40 percent of the elected representatives. Marshall is basically like, "Fuck off." He calls this a red herring in his dissent. And he clarifies, like, what he's saying very clearly is actually that the Constitution protects against vote dilution, and that doesn't extend to situations in which a group has, you know, failed to elect representatives in proportion to their share of the population. It actually doesn't matter, right? Whether or not there's a proportionate representation for certain segments of the population, he's like, "I've never said that, and that doesn't make sense. What I'm worried about, what the Constitution protects against is vote dilution, in this case, based on race."

Rhiannon: And so he moves on to elaborating on this idea that the Constitution protects against vote dilution. The 14th Amendment does this, he says; the 15th Amendment does this. You know, the equal protection clause of the 14th Amendment, Marshall explains, gives weight to the right to vote. The right to vote and the equal protection of laws promised in the 14th Amendment means not just that somebody has a right to vote, but that they have effective participation in political life.

Rhiannon: So Marshall says that the plurality here, what this opinion does, what the holding does, is give Black citizens of Mobile, quote, "Nothing more than the right to cast meaningless ballots."

Michael: Right.

Rhiannon: You're hollowing out the right to vote, but with this dilution. And the big point, right, contra to the plurality opinion, Marshall says we should not be requiring proof of discriminatory intent. It doesn't matter if there's a smoking gun or not, where white elected officials, white legislators are saying, "We are doing this because it's racist and because we don't want Black people to have meaningful participation in political life and we don't want Black people to vote." We don't have to prove that, Marshall is saying. Marshall says just the discriminatory impact, just the fact that the Black vote is diluted in this way because of the three-person at-large city commission, that's enough. That is enough to violate the 14th Amendment. That's enough to violate the 15th Amendment, and kind of period.

Peter: So I think this case is really emblematic of how easily intentional discrimination can cloak itself in legalese. But there are emblems within emblems here. So Lewis Powell voted with the plurality, though he did not author an opinion. I'm going to read to you from his New York Times obituary in, I believe it was 1998. "His long life in some respects mirrored the journey of the modern South from the country's fringe to its mainstream. He described his initial response to the Supreme Court's ruling in Brown v. Board of Education, the 1954 decision that segregation in the public schools was unconstitutional, as one of shock. Yet as a Virginia civic leader, and later as a Supreme Court justice, he stood for moderation and consensus building on matters of race."

Peter: Okay, so the reputation for moderation was not totally unearned. He voted in favor of affirmative action just a couple years prior to this, for example. But just last year, in 2024, someone went digging around the archives and found an internal memo from Powell to Potter Stewart in which he said that were their side to lose this case, quote, "Our cities could become jungles." Now I will note in the memo ...

Michael: That's Mobile v. Bolden, the case we're discussing.

Peter: That's right. Now I will note that in the memo he says, "I'm not talking about minorities, I'm just talking about the ward system and how much damage it will do." I do not believe that Lewis Powell writes this memo if this is a case about how Black voters are boxing out the white vote.

Michael: Right.

Peter: Using at large voting. I do not believe that he writes Potter Stewart a memo about how another system of voting would result in our cities becoming "jungles."

Michael: No, I think the memo would be, "Mobile is a jungle, and we need to reimpose civilization."

Peter: Right.

Rhiannon: Yeah. You know the writer David Daley, who has talked about, like, the far-right assault on voting rights in the United States over time, he found that Powell wrote to Justice Potter Stewart about this opinion about this case multiple times, and that Potter Stewart did in fact, like, edit and redraft portions of the opinion to match what Powell was saying, and to mirror, you know, kind of like Powell's arguments about the threat of this case turning cities into jungles.

Michael: Powell didn't have to write an opinion, Stewart wrote it for him.

Rhiannon: Right. So Powell didn't have to write the opinion, Stewart wrote it for him, but in the end the "moderate Southern gentleman" gets his way.

Michael: Right.

Peter: I mean, I think we wanted to use this case to sort of talk about A) like, voting rights, right? But in a lot of ways, this case is sort of behind us; the Voting Rights Act was altered to supersede it. The city lost in the lower courts and changed their system of voting, but the fundamental principle behind this case is the dominant principle in the Supreme Court's voting rights jurisprudence. This is like what John Roberts believes, that absent some, like, very clear demonstration of discriminatory intent, any sort of discriminatory impact is fine. That can all be treated as coincidence, even though everyone who's not a fucking idiot knows that, like, these Southern jurisdictions up until at least the 1970s were actively trying to disenfranchise Black people.

Michael: Yeah.

Rhiannon: Daley also tracks that a young John Roberts, before he was ever on the Supreme Court—we've talked about John Roberts's career-long efforts to gut the Voting Rights Act—that John Roberts was influenced by this case, by the Bolden case, in taking its arguments and using those arguments to eventually get what he wanted and gut the Voting Rights Act in Shelby County v. Holder.

Peter: And, you know, going even further, the use of race neutrality by actual gutter racists is one of, like, the primary modes of operation for the modern right wings, right? So, you know, you have this campaign against diversity initiatives, and the right wing talking point is something like, you know, we should aspire to race neutrality, and diversity initiatives are actually giving preference to certain groups, and therefore they should—they are actually counterproductive, right?

Peter: Meanwhile, if you're not a complete fucking sucker, you understand that these people are, largely speaking, gutter racists who are taking advantage of the liberal principle of race neutrality, right? And anyone who engages with these arguments as if they are being made in good faith is being had, because you are engaging in good faith with people who are engaging with you in bad faith, right? It makes you a sucker. There is no better definition of sucker than that. And when you have an administration full of interns that are young Nazis—and they are—and anyone who knows anything about, like, the modern young right knows that they are, and they are, like, hopping online to delete every web page about a Black guy who has ever accomplished anything that is on the, like, White House website or whatever, you should be able to process that for what it is, right?

Rhiannon: Yeah.

Peter: But there are a couple of segments of the population that don't. One is like the John Roberts types who desperately want to believe that they actually adhere to this principle, but somewhere in their subconscious are reactionary pieces of shit, right?

Rhiannon: Absolutely. Yeah. Yeah.

Peter: And then you have the Atlantic set, the Atlantic readers, right? The people who believe that because race neutrality is something that we should aspire to, that these arguments really make sense to them. The people who are attacking diversity initiatives are, in fact, upholding liberal ideals. Those people are stupid beyond repair, and must be ignored for our political future to be secured. This basic dynamic that you see in this case with gutter racists, proper conservatives and sucker liberals, it's still playing out to this day.

Michael: Yeah. And to that point, I think pulling out even a little further, this case and these dynamics are very much about what is a democracy and what is meaningful representation and meaningful participation in a democracy? And so another way we see these same dynamics playing out—I'm gonna read from the New York Times's very recent piece, "Executive Actions Intended to Cripple Top Democratic Law Firms; Investigations of Democratic Fundraising and Organizing Platforms. Ominous suggestions that nonprofits aligned with Democrats or critical of President Trump should have their tax exemptions revoked. Mr. Trump and his allies are aggressively attacking the players and machinery that power the left, taking a series of highly partisan actions that if successful, will threaten to hobble Democrats' ability to compete in elections for years to come."

Michael: This is a framing of an assault on democracy and the opposition as like a horse race thing. It's not a horse race thing. Just like Jim Crow was not a horse race thing, it was essentially a one-party state that was enforced through extra-constitutional means, extrajudicial means, violence, and was not in any functional sense democratic.

Rhiannon: Right. Like, there's no back and forth.

Michael: Right. Pursuing these things, the point is not to have an edge in elections, it's to make elections meaningless. It's to denude your opposition of so much power, of so much vigor that they either cannot win or if they win, are so weak and purposeless that they don't even oppose you. This is what elections in lots of authoritarian regimes look like across the world. Because lots of authoritarian regimes have elections, they're just not free and fair elections with meaningful participation. That's what this case is about, and that's what's happening in America right now. And I think the big takeaway is you have to just be honest about this shit. You can't play nice with fascists.

Rhiannon: It's not about just winning elections or having the electoral edge, persuading voters. When we look back at Jim Crow, we understand that as not necessarily that, like, racists won an election and, you know, they were putting in their preferred policies for the time that they're in office. No, we see Jim Crow and understand Jim Crow as the implementation of a racist system.

Michael: Right.

Rhiannon: Of a fascist system. And so we need to understand today that this is the implementation of an anti-democratic, also racist, also ableist, all of the things fascist system, and not about winning elections. And that also goes to the right to vote, right? Like, the right to vote, meaning that you effectively and fully can participate in democracy, civic engagement, not that you can physically go to the poll and choose your ...

Peter: Which is how they define, like, the act, the right to vote in this case.

Rhiannon: Yes. Yes.

Peter: Like. "Well, they're allowed to go to the polls and cast a vote."

Rhiannon: Yeah.

Peter: It's like, okay, are they participating in the political process in any meaningful way? Because that's the actual point of voting, right?

Rhiannon: Right. What I'm saying is they go to the polls and cast their vote, and because they're Black, it doesn't mean anything. Like, that is what it is.

Peter: Potter Stewart's like, "They have the 'I Voted' sticker. What else do you want?"

Rhiannon: [laughs] Yeah. Yeah. Yeah. Talking about Alabama today, voting rights today, Alabama still has a lot of voting problems. This case is emblematic of the court giving the green light to voter disenfranchisement and vote dilution. And, you know, Alabama remains one of the most restrictive voting regimes in the country. It is one of 11 states that does not allow early voting. It's one of 11 states that requires a notary to sign a voter's absentee ballot. Alabama requires voter ID. Alabama has a felon disenfranchisement regime, in which people convicted of certain crimes or, you know, people in prison, people on felony surveillance, you know, whether that be like probation or parole, there are restrictions on their ability to vote.

Rhiannon: And so all of this plays out, obviously, in really real ways that continue to affect real people and the population of the United States. And I think there's something in the voting rights cases that is true across the board of how the government conceives of rights. Like, when we talk about rights, when we think about rights, we think of rights sort of being within, being held by individual citizens. In voting rights cases, in voting regimes, especially those that are restrictive across the country, and certainly across the South, you see that the state actually believes they hold those rights, and that it's for the state to pass out the rights as they see fit, to give the rights to the people they want to give the full rights to, and to restrict the rights for everybody else. And I think you see that in the way the government is operating today, in not that everybody inherently has rights, but that the government gives rights as it wants to.

Michael: So I also think, looking at this case and then modern politics and comparisons, I think it's worth noting that, like, two years after this case, in 1982, Congress amended the Voting Rights Act to essentially moot this case to say, you don't need discriminatory intent or evidence of discriminatory intent. That's not what the Voting Rights Act requires. This is interesting because this is when Reagan is president, right? And this amendment passed with massive numbers in both houses of Congress. There was a debate about this, and there was a lot of concern from conservatives and from Reagan about whether this amendment language would require proportional representation, the bugaboo that Potter Stewart talked about and that Marshall was like, "Fuck you. That's not what I'm saying." And so they made clear that, like, no, this doesn't require proportional representation, but it also doesn't require evidence of discriminatory intent. And yeah, passed it in massive numbers, veto-proof majorities. Reagan signed it happily, didn't even need the veto proof majorities, which I think speaks to how even in this era, like, sort of ascendant reactionary-ism, there was still a functional dynamic in the government, right? The parties still negotiated with each other, there was still healthy cross branch, sort of co-equal discussion, dialogue, constitutional dialogue. This is what a healthy democracy looks like. Even when there's a reactionary in charge, they are passing these laws that go against his beliefs, and he's signing them because they have a sense of what's right and what's wrong and how stuff works.

Michael: Today is very different, right? Today, congressional dysfunction is almost assumed, which gives the court free reign to go much further than they did in this case without any concern that Congress will push back, without any concern that the executive will have even harsh words for them about it. The court is emboldened by congressional dysfunction. The executive in other areas is emboldened by congressional dysfunction. And it's led to—that is, in a lot of ways, the constitutional crisis we currently are in is a result of this. And all these dysfunctions, the way they just have created a rotten, crumbling infrastructure, democratic infrastructure.

Peter: Right. And it's easy to look at this and think the dysfunction of Congress is the problem, right? That's what sort of precipitated the current constitutional crisis. That's sort of correct. But it's almost, like, too savvy by half.

Rhiannon: Yeah.

Peter: The problem is reaction. The problem is the right wing. They have facilitated dysfunction in Congress on purpose, and if there is to be a solution to this political moment, it will involve the removal of the right wing from power one way or another, right? It will be finishing what Reconstruction started. And that's it. There is no other solution to the current political moment.

Michael: I was just talking about this on Bluesky, and I've been thinking about this a lot lately, and it's like the constitutional crisis discourse. And, you know, there's a reason we started with Bush v. Gore, right? I think that is a very clear sort of—you can make a strong case that that is the start of the constitutional crisis. And I believe that. But much of the crisis after that, we were in a constitutional crisis, but it's like war on terror stuff where it was the executive branch, right? But it was an executive branch being run by reactionaries. And then once Obama takes office, the constitutional crisis continues, but it's a lot of the Supreme Court, right? It's Citizens United, it's Heller, it's Shelby County, it's Parents Involved, ba ba ba ba ba. It's the court, because it's the reactionaries in the court. And then Trump takes over and it's the executive branch again, right? And then Biden takes over and it's the courts again. And it's the reactionaries. It's the conservative movement is the constitutional crisis. And the solution to the constitutional crisis is defeating them. Defeating them, not working with them to find a compromise, driving them from power for generations.

Rhiannon: Yeah.

Peter: And only Chuck Schumer can do it.

Rhiannon: [laughs]

Peter: And, you know, I mean, I disagree with you, Michael. I don't think it was Bush v. Gore. I think it's the Reconstruction amendments, right? I think that the constitutional crisis stems from the fact that the Reconstruction amendments were meaningfully in effect for, like, a decade. And that's it. And you can have debates about all this—you know, a lot of it's relatively abstract and academic. But what I can tell you is that right now the New York Times is saying things like, "Experts worry that perhaps we are heading for a constitutional crisis."

Michael: Wake the fuck up, dude!

Peter: They said—this is from the March 19 morning newsletter at the New York Times. "Still, America may not be in crisis yet. Republicans in Congress have not actually impeached any judges. A judge has not yet held Trump or anyone in his administration in contempt. The administration has not defied the Supreme Court, only lower court orders."

Michael: Only lower court orders. [laughs]

Peter: That's the new goalpost shift that even Schumer himself said on Chris Hayes. Like, "Well, he hasn't defied the Supreme Court yet. Sure, he's doing a power grab where he removes power from district courts, federal district courts, but not the Supreme Court."

Michael: Sure, he stole this power of the purse from Congress and we didn't even put up one word of protest, but whatever, we're the lesser branch anyway. Co-equal? Never heard of it.

Peter: There's this ongoing theme of complicity that just runs through this case, runs through our current moment. It's people unwilling to accept what they are actually being faced with, and people willing to buy the thinnest, thinnest excuses and lies, right? Like, someone being like, "Oh, we're really concerned about race neutrality in the Constitution, and that's why we must, of course, gut the provisions of the Voting Rights Act."

Michael: Right.

Rhiannon: Yeah.

Peter: That sort of argument should be absurd to you on its face. Just like a 22-year-old Nazi removing Black Medal of Honor winners from government websites and saying it's to serve the purpose of race neutrality should also be absurd to you, right? Just like Elon Musk saying he's making the government more efficient should be absurd to you, right? This stuff happens because there are people and institutions who take it in good faith and move forward from there. And they're all being hacked.

Michael: Yeah. Dude, I was thinking about this and it's like you could fucking build a time machine and bring every single drafter and signatory to the Constitution, the Declaration of Independence, all that, into the modern day, explain what's happening. And they could all say in one unified voice, "This is a constitutional crisis." And the New York Times would be like, "Experts weigh in and ..."

Peter: Experts disagree. On one hand, you have James Madison reincarnated and brought to life. On the other, several conservative bloggers.

Michael: Yes. Like, the clouds could part and God himself could be like, "I am real, and I am the one true God, and you are in a constitutional crisis." And they would be like, "Well, was that God, or was that a viral marketing campaign, perhaps?"

Rhiannon: [laughs]

Peter: Yeah.

Rhiannon: Yeah, yeah.

Peter: If George Washington met Elon Musk, he would have surrendered to the British immediately.

Rhiannon: [laughs] Not worth it. Forget it. Forget this project.

Michael: Fuck!

Peter: Next week we're gonna be talking about the Alien Enemies Act, immigration, Trump defying court orders. All of the components of the constitutional crisis wrapped up in and around immigration. Premium episode. We promised that we would be checking in on the administration every month or two, and we're gonna keep doing it. Follow us on social media @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium episodes, special events, our Slack, all sorts of shit. We will see you next week.

Rhiannon: Bye, y'all.

Michael: Bye.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy, our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merchandise, merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

Peter: Mobile? Are we saying Mo-beel? How hard are we hitting Mobile?

Rhiannon: It's definitely Mo-beel. Yeah.

Peter: Mobile.

Rhiannon: Mobile. Yeah.

Michael: Okay.

Peter: Mobile. Mobile.

Rhiannon: [laughs] Damn Yankee!

Peter: Part of just having to say things the way you hicks tell me.

Rhiannon: [laughs]