HOSTS
PETER SHAMSHIRI
RHIANNON HAMAM
MICHAEL LIROFF
Peter Shamshiri: Imagine trying to protect the sanctity of Phoenix.
Rhiannon Hamam: [laughs]
Leon Neyfakh: Hey everyone, this is Leon from Prologue Projects. In the previous episode of 5-4, Peter, Rhiannon and Michael covered the tumultuous lead-up to the Voting Rights Act of 1965. If you haven't listened to that yet, go back and check it out before you continue. In this episode, you're gonna hear about how key provisions of the Voting Rights Act served to protect minority voters, and how over the coming decades, a newly-rebranded conservative movement gutted the act—one Supreme Court case at a time. This is 5-4, a podcast about how much the Supreme Court sucks.
Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have dismissed our civil liberties like me being dismissed from jury duty. I'm Peter. I'm here with Rhiannon.
Rhiannon: Hello.
Peter: And Michael.
Michael Liroff: Shouldn't you be trying to get on the jury so you can nullify?
Peter: I've got a vacation coming up, first of all.
Michael: [laughs] Oh!
Peter: Second of all, all I'm doing is answering every question truthfully. If you want to put a Supreme Court podcaster on your jury, that is your prerogative.
Michael: [laughs]
Peter: I've got a couple days of jury duty, and today I was outside of a courtroom. I was just overhearing this girl in college talk to someone else, and the discussion was a debate about whether the sounds coming from the elevator were construction or just a loud elevator. And when I tell you that it was the most obvious construction sounds, I—like, you could hear men shouting and jackhammers. And she—like, for five to ten minutes, every now and then she'd be like, "Maybe it is an elevator. Or maybe—and then she'd go back and be like, "Maybe it—maybe—yeah, maybe it is just construction."
Rhiannon: Meanwhile, somewhere, a law professor is typing right now, like, "The jury system in American law is flawed, but ..."
Peter: But necessary.
Michael: As a last refuge against tyranny. And you know what? They're right. I want her on a jury.
Rhiannon: She should be on a jury, and she should be the foreman. And I hope you're selected on the jury as well, Peter. And she'll be your foreman.
Michael: Fuck your vacation.
Rhiannon: Yeah.
Michael: Yeah.
Peter: Oh, God!
Michael: [laughs]
Peter: All right. All right. All right, folks, this is the second and final part of our series on the rise and fall of the Voting Rights Act. In the first episode, we traced the century-long struggle for voting rights, and the reactionary forces—especially in the South—that stood in the way at every turn. We talked about the passing of the Voting Rights Act in 1965, and now we're gonna talk about the little right-wing perverts who have spent the last 60 years trying to whittle away at it.
Peter: There's something we've talked about many times on this show, but it's worth circling back to. After the civil rights movement and the upheaval of the '50s and '60s generally, the conservative political and legal movements are sort of adrift, right? The segregationists are defeated. The Southern Democrats coalition is broken. Conservatives are looking for a rebrand, right? But they maintain a lot of the same goals, including limiting the franchise.
Michael: And I think there's an important story to be told here. In this period, you have conservatives sort of engaging in what's called "white flight," which is white people leaving urban cores, mixed-race neighborhoods, and going to all-white suburbs. And I think it's important because it both sort of previews the transformation of the conservative political strategy in the coming decades, and also shows how conservatives laid the groundwork for a response to the Voting Rights Act to recreate segregation, recreate political subjugation by geographically separating themselves from minorities.
Rhiannon: Mm-hmm.
Michael: When you move out of the urban core, all of a sudden you don't have access to all the public parks, and so maybe you're not so keen to see them funded anymore, right? You're not using those public school systems anymore, so maybe you don't want those being paid with your tax dollars. Maybe you want the public schools to be paid by, I don't know, local property taxes, for example. And so there's a whole bundle of political and policy issues that go with white flight, but it's an interesting story and it's worth getting into the details a little bit on, because it does bear on the Voting Rights Act, and especially on Black Americans' ability to get representation for themselves even today. And it'll tell us a bit about the conservative movement.
Michael: So early on, the initial reaction in the early '50s to the beginning of desegregation was very violent reactionary. These Klan-like groups, or at times the Klan itself, bombing homes, beating, attacking, maybe even killing Black people who had the temerity to buy a house in a majority or all-white neighborhood. And what Peter was just referencing was as the decade wears on, this becomes a political loser in a way. Like, the nation writ large and moderates are repulsed by this violence. They don't like it. It makes segregationists sort of political pariahs. And so there's a movement to rebrand into something more respectable. Instead of, you know, using racial slurs and talking about how you are for white supremacy, there are the founding of, like, community groups and neighborhood groups that sort of presage homeowners' associations and racial covenants and things like that, but that are dedicated to maintaining the character of a neighborhood. These organizations start developing a language that sounds very familiar today, a language around the need for strong property rights, that property owners should have the right to do what they want with their property, that strong parental rights towards their kids' education. "Hey, I should be able to send my kid to the school I want to send them to so they can be surrounded by the people I want them to be surrounded by."
Michael: Now of course, I'm not suggesting that this meant the violence, you know, just went away. It did not. There's an interesting anecdote in this book I was reading, White Flight by Kevin Kruse, the historian, where later in the '50s, one of these organizations that was far more respectable was trying to essentially de-integrate a neighborhood, re-segregate a neighborhood in a respectable way by pooling a bunch of money and buying back all the houses from Black people. Problem solved. Well, just the white people will just buy up all the Black houses again, and then it'll be an all-white neighborhood again. And some Black people didn't want to sell, and when they were being intransigent, they bombed one of the houses. You know? And it's like, even in their strongest efforts to not be, like, just violent racist pieces of shit ...
Peter: Right.
Rhiannon: Yeah, that is what they are. Yeah.
Michael: They couldn't help themselves. Which I think gets to this tension between, like, their public-facing language and the private feelings of the groups. But what's interesting about this story of resisting integration in the urban centers is that eventually led to the flight to the suburbs. Originally, they were relying on this sort of community solidarity of white people, but the community continually let them down. White homeowners on the edges of the all-white neighborhoods sort of hated being the buffer between Black neighborhoods and the lily-white centers of the all-white neighborhoods. And so what would happen is they would sell their houses to Black people at a premium because, you know, and that would shrink the size of the all-white neighborhood. And this led to, I think—and Kruse argues this explicitly in the book—essentially the end of community as an important value in the reactionary movement and the rise of individualism, right? Like, the repeated failure of community-based organizations to protect white interests led to the embrace of this rugged individual, every-man-for-himself ideology that we still see today. And when you pair it with robust property rights, robust parental rights, and a language around individual freedoms, what you see is housing segregation, the politics of housing segregation, presaging the modern conservative movement and its language. In a practical sense, by fleeing to the suburbs and leaving the inner-city majority racial minorities, it also created the conditions for racial gerrymandering, for the subjugation of minorities by starving them of tax dollars and services, and making them vulnerable to redlining and things like that. So this served the broader—it ended up serving the broader political project of reinstituting a racial caste system sort of inadvertently, at least at first. But this is an important thing to understand about how the modern conservative movement was born.
Rhiannon: Yeah, I think that's really right. And I think it's right to put this all in context, because what we talked about last episode is a world in which the Voting Rights Act, the Civil Rights Act didn't exist, a world in which the Civil Rights Movement had not yet happened, and then what the Civil Rights Movement sort of won for American society. And then immediately afterwards, you see the social movement, the political developments that are about where the conservative movement goes from there to try and reinstitute segregation, reinstitute disenfranchisement, right?
Michael: Right.
Rhiannon: And so socially, you see in white flight, a sort of conservative momentum building and figuring itself out ideologically in the law as well. In 1980, 15 years after the Voting Rights Act is passed, there is a Supreme Court case called Mobile v. Bolden. We have done an episode on this case—definitely encourage people to go back and listen to this episode. But what you see in Mobile v. Bolden is a holding that really opposes how the Voting Rights Act had been interpreted up until that point.
Rhiannon: So jumping into the case, this is a challenge by a class of Black voters in Mobile, Alabama, a challenge to the at-large voting scheme for city elections in Mobile under, of course, Section 2 of the Voting Rights Act. They are taking the Voting Rights Act, they are saying this at-large voting scheme in Mobile violates the Voting Rights Act. And just as a quick refresh, at-large voting means that all of the voters, in this case in Mobile, voted for all three of their city council members, right? So council members are not running in separate districts, meaning that the majority voting bloc, in this case white people, decide who runs the city, right? And the minority voting bloc, Black people in Mobile, have their votes utterly diluted, right? The white majority votes for all three city reps every election cycle.
Rhiannon: And it's important to also situate even this specific city's voting scheme, this at-large voting scheme, in the history that predated the Voting Rights Act in order to start analyzing, like, how conservatives started to deal with this post-Voting Rights Act, right? At-large voting in city elections was instituted in Mobile in 1911. We just did a whole episode about what the South did during Jim Crow to keep Black people de facto disenfranchised, so you can imagine why that would be the case in Mobile, why they implemented at-large voting, right? And just a decade before that, Alabama held a constitutional convention in which they rewrote their constitution—just like we talked about in many cases in the last episode—in which the chairman of that constitutional convention opened the proceedings by saying that their goal was to, quote, "establish white supremacy in this state."
Rhiannon: So it's in this time period that the city of Mobile adopted the at-large voting scheme. And this is the scheme that's being challenged under the Voting Rights Act in this Supreme Court case. Now what you get in the holding of Mobile v. Bolden is a conservative plurality saying yeah, we can see that the effect of the at-large voting scheme in Mobile has discriminatory effect. Like, yeah, the effect is that the Black vote is getting diluted here. We can see that. But that's just the effect, and the Voting Rights Act doesn't say you have to make sure that discrimination doesn't happen in voting. The Voting Rights Act says you can't mean for discrimination to happen in voting. There's no discriminatory intent here. And, you know, the at-large voting scheme wasn't put in place with discriminatory purpose.
Rhiannon: Of course, this is bullshit in this specific instance—we just talked about the history—but it's also a way you see in Mobile v. Bolden in 1980, right? It is a way to insert a lot of room for racism and discrimination into the legal world, where now all of a sudden this bullshit is passing muster, actually. Oh, this doesn't violate the Voting Rights Act, even though Section 2 of the Voting Rights Act says basically no voting practice or procedure can deny or abridge the right of any citizen of the United States to vote on account of race or color. That's what the Voting Rights Act says. And here the Supreme Court in 1980, 15 years later, is saying, "Well, they have to really mean to be racist for it to be something that abridges the rights of US citizens to vote."
Peter: This touches on something we talked about in the first episode, which is that the Voting Rights Act really recognized that there were bad actors, especially in the South, right? And that they needed to be reined in. The Supreme Court at the time said the same thing, basically recognized when the Voting Rights Act was challenged in the '60s that there were Southern states that very consciously were evading their obligations under the Fifteenth Amendment to not discriminate in voting. But in the early '70s, conservatives take control of the court, and you get this sort of reframing, where well, it's not really about whether the results are discriminatory, it's about the intent. And you can't prove that the intent was discriminatory, right? Now we've extended good faith to these Southern states, right?
Rhiannon: Yeah. They're presumed to not be operating in a racist way. And so, like, what you see in this case is like, that the Supreme Court has played a central role starting pretty quickly after the Voting Rights Act is passed in dismantling the Voting Rights Act itself. What you see is an ascendant conservative legal movement at this time coalescing in a major way on voting rights. And that is to say opposing voting rights, right? Like, opposing an expansive approach to voting rights and really, like, actually restricting those prophylactic functions of the Voting Rights Act, which are so important to the Voting Rights Act.
Peter: Yeah.
Rhiannon: That shakeup really triggers a fight in Congress coming out of Mobile v. Bolden.
Peter: Let's talk about that a little bit, because I think what happens in Congress and the White House shortly after that case is really emblematic. So one element of the Voting Rights Act is that certain provisions within it would expire after a few years. So you had the preclearance provisions which said that the Southern states had to get approval from the federal government before they changed their voting rules. Those provisions were initially set to expire after, like, five years, and then what happened is they would expire or be about to expire and then get extended by Congress a few more years, right? So they get extended a few times, and then in 1982, when the provisions are set to expire again, there's a big legislative fight. What do we want to do with the Voting Rights Act at this point? A lot of people in Congress want to amend the law so that it undoes what the Supreme Court held in Mobile v. Bolden.
Rhiannon: Right. In Mobile, the Supreme Court comes in and says well, the Voting Rights Act requires discriminatory intent, that lawmakers intended to be discriminatory in changing their voting policies. And so what this amendment would do, Congress would amend the Voting Rights Act itself such that discrimination in voting could be judged by that discriminatory impact rather than requiring discriminatory, racist intent. Like, discriminatory intent is so hard to prove, so what Congress would be doing in this amendment is allowing for plaintiffs, allowing for voters to say, no, it had discriminatory impact, which is easier to show, and that would be a violation of the Voting Rights Act instead of this higher standard that the Supreme Court artificially implemented.
Peter: Right. And so behind the scenes, attorneys in Reagan's Justice Department are very opposed to this. They liked the holding in Mobile v. Bolden. They liked that it made it harder to sue for discrimination in voting. And they are led in large part by a young John Roberts, who was a special assistant to the attorney general at the time.
Rhiannon: Well, well, well!
Peter: John Roberts at this time is drafting internal memos arguing against the amendment. He gives the attorney general talking points to try to bring the White House to their side. He's engaging in PR. He helps draft op-eds opposing the amendment that would go into major papers. He's doing political strategizing. He's talking about whether senators might be movable on the issue. His arguments are being circulated to Republican senators.
Rhiannon: Who does he write to at the time where he's like—he's basically like, "It is such an exciting time to be in government right now, because so much is up in the air."
Peter: [laughs]
Rhiannon: You know, he's like, "We're influencing everything!"
Peter: I remember that, but I don't remember who he's talking to.
Michael: Yeah, I don't— I don't remember.
Peter: At the time, he's, like, 26, right? He's just this young little creep, ready to attack voting rights. He wrote this about the amendment that would functionally reverse Mobile v. Bolden. "This would make challenges to a broad range of voting practices much easier, and give courts far broader license to interfere with voting practices across the country. In particular, such widely-accepted practices as at-large voting would be subject to attack since it is fairly easy to demonstrate that such practices have the effect of diluting Black voting strength." He's like, they might get rid of all the voter dilution tactics that we know and love if this amendment passes.
Michael: Right.
Peter: So I think Roberts himself, a very sort of interesting figure here because, again, he's, like, 26, 27.
Michael: Most of his life has been under the regime of the Voting Rights Act.
Peter: Not just that, though. Like, he is probably the first generation of conservative to not come from the segregationist swamp, right? In the '60s, you had actual congresspeople talking about the Voting Rights Act causing the, quote, "racial mongrelization" of the United States, right? That is the sort of language we were seeing publicly in the 1960s. Now we're, like, almost 20 years later, right? John Roberts, he's coming out of the New School of conservative thought, right? They don't talk about it like that. They talk about federal interference with tried and true state voting practices, right?
Michael: Yeah.
Peter: So at this time, the Reagan White House is a little bit cagey. They're facing heat because they were trying to maintain the tax-exempt status of segregated private schools, and so they didn't want to stick out their neck further on racialized issues. So at first they don't take a public position, then they officially come out on Roberts' side saying that they oppose these amendments. Ultimately, there is a compromise. Bob Dole proposes the compromise, and it says that a violation would occur if, based on the totality of the circumstances, minority voters demonstrate that they have, quote, "less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice." This is a compromise because it expressly disclaimed proportional voting, the idea that you were sort of legally entitled to a specific proportion of the representative body.
Michael: If Black voters have 30 percent of the population, they should get roughly 30 percent of the political representation.
Peter: Right.
Michael: It disclaimed that idea.
Rhiannon: Right.
Peter: Roberts, by the way, still doesn't like the compromise. The DOJ—the little creepy DOJ lawyers do not like the compromise. And Reagan accepts it again because Reagan, you know, always in hot water with other races, you know?
Rhiannon: Of course.
Peter: But this is where Roberts cut his teeth, right? This is where he sort of establishes himself. And it's an indication of the evolution of the conservative legal and political movements, because you have this move from the express racism of the '60s that the Southern Democrats were putting into the public record when they were talking about the Voting Rights Act. Now there's a whole new generation with a whole new vocabulary, even if the goals are largely the same.
Rhiannon: I think that's right. And I think, you know, as a Supreme Court podcast, we focused last episode on the Supreme Court cases that, you know, helped dismantle, lead to the end of Reconstruction, help to greenlight, support Jim Crow policies, and certainly all kinds of disenfranchisement over the years. And in this episode, we also want to highlight the Supreme Court's central role in the dismantling now of the Voting Rights Act, but in that story, really make sure that we highlight two individuals especially who have been central to this process within the Supreme Court. And that's John Roberts, as Peter just talked about, before he's even on the Supreme Court. And another is William Rehnquist.
Rhiannon: John Roberts clerked for William Rehnquist before he started working in the Reagan White House. William Rehnquist, of course, we've done an episode on him as well, noted segregationist. This man, before he ever touched the Supreme Court, was a violently and aggressively and outspokenly racist individual. He wrote a memo as a law clerk in support of the holding in Plessy v. Ferguson, a Supreme Court case we talked about last episode. And as a lawyer on the record—many people talked about it, many people witnessed this, many people were a part of it—in the mid-1960s, was part of Operation Eagle Eye, a well-financed operation explicitly backed by the RNC at the time with the goal of suppressing the vote of racial minorities.
Rhiannon: And "suppressing" meaning literally, meaning literal voter intimidation, meaning literally walking up to people, to minority voters coming to the polls and demanding that they read a copy of the US Constitution out loud, right? Taking pictures of people as they scream at them and ask them whether or not they speak English, distributing, you know, really deterrent, aggressively deterrent paraphernalia like deceptive mailers indicating that, you know, a voter who had committed a traffic violation would be arrested if they showed up to the polls, encouraging minority voters to write in Dr. King's name for president.
Rhiannon: And as early as 1958, William Rehnquist is in the role of poll watcher in Arizona, where he's from, directly and personally involved in challenging voters at the polls, challenging that they are American, asking if they could pass a literacy test. It goes on and on and on, the disgusting racism in this man, right? To say nothing—again, noted segregationist, we mean literally—he's writing to local school board officials in open opposition to desegregation, to integration in public schools in the Phoenix area.
Peter: Imagine trying to protect the sanctity of Phoenix.
Rhiannon: [laughs]
Peter: It's pathetic.
Michael: It's been a while since I've listened to a Rehnquist episode, but didn't he buy a house with, like, anti-Jew racial covenants on it, like, while he was a Supreme Court justice?
Peter: Yeah. The house had a—had a covenant in the contract saying you couldn't sell it to a Jewish person. [laughs]
Michael: And that was while he was a Justice.
Peter: And then every ...
Michael: Such a piece of shit.
Peter: And then everyone is like, "These are—this is just boilerplate."
Rhiannon: Well, and he also—yeah, and he also says things throughout his career on stuff like this that he's just a property rights absolutist. This goes back to what you were saying, Michael, about this story of white flight, right? And how racism is couched in different arguments about different kinds of individual freedoms, right? Your right to own property in the way you want, your right to parent in the way you want, on and on and on, right? William Rehnquist, you know, there's evidence that he opposed a city ordinance in Phoenix in '64 that prohibited racial discrimination in public places like theaters. He wants theaters and restaurants to be segregated in '60s. This is a man who became the Chief Justice of the United States Supreme Court, right? We can go on and on for decades, for decades. Well-respected, called a centrist, right? Called a reliable—a reliable centrist if maybe he leaned conservative, right?
Rhiannon: And so, you know, bringing it back, if this was this man's history on the books, open, people knew about this, he was out spoken in public, for this person to have the ascendance that he did, the success that he did professionally and in his career and in shaping Supreme Court jurisprudence for decades, I think I want to make sure that, you know, actually the takeaway here is not just that this story and the dismantling of voting rights and Black disenfranchisement in general in the United States is about individuals' racial animus, that William Rehnquist is an individual piece of shit racist guy, that's not actually what it's about, right? But in truth, I think what we're highlighting and the story that we're telling is that if these guys—William Rehnquist, John Roberts, the rest of them who had these views—have been so successful in semantically packaging those views in a certain way to all the way up the legal system in the United States, to put these views into law, you see a system then being built brick by brick in which having these views, putting forth these arguments, developing this jurisprudence and this line of thinking in the law is being rewarded. And the system to dismantle voting rights, to reinstitute a segregated society, to reinstitute racial hierarchy is being built.
Michael: Yeah. And so while Rehnquist is the Chief Justice, you know, the states are at work. They are trying to come up with clever new ways to discriminate in voting, and they are being shot down by the DOJ. There are actually some numbers on this. You know, between 1982 and 2006—about 24, 25 years—the DOJ rejected over 700 proposed voting changes by the states. There was a further 100 private actions done under preclearance, you know, private plaintiffs bringing suit. And on top of that, another 800 cases where the DOJ basically sent comments back to the states saying they needed to modify their changes, which led to either modifications or withdrawals. So if you're counting, that's over 1,600 proposed changes that had a discriminatory intent or effect in voting over 24 years, which cashes out to, when you do the math, more than one a week for 25 years straight.
Peter: And it goes to show why you need this system.
Rhiannon: Exactly.
Peter: Right?
Michael: Yeah.
Peter: If you don't have this preclearance system where they need to get approval, then each one of those would need to be challenged in court. I mean, it's just impossible. You can't possibly play whack-a-mole forever with this bullshit.
Michael: Right.
Rhiannon: It goes to show why Shelby County sued, right? Like, they're fucking done with it. Like, they don't want to do this shit anymore, you know?
Peter: Yeah, maybe that's worth highlighting again. The preclearance idea, that you need approval from the federal government before you change your voting rules, that only applied to specific jurisdictions that had specific histories of discrimination, right?
Michael: That's right. Initially, it was limited to just seven Southern states. It eventually, because of the formula and because of new data, was expanded. But because it was so focused on specific jurisdictions and based on histories and things like that, it's never been a permanent provision. Like, the preclearance idea is permanent, but who is subject to it and who is not, what the formula is, hasn't been permanent. And so originally it was just for five years and then it was reauthorized. As Peter said, it had to be reauthorized several times and modified along the way. In the mid-'70s, the reauthorization also expanded it to cover language minorities. And I mention this only because it became a big flashpoint in the 2006 reauthorization fight. So the last time it was reauthorized in 1982, it was reauthorized for 25 years, which meant it was due to expire in 2007. Now, in 2006, lawmakers are looking at it. And this is an interesting moment, because there's a Republican president, Republicans control both houses of Congress. Black voters have not voted for Republicans in any significant number for years.
Peter: And by the way, I think it's worth drilling down on this briefly. When the 1982 reauthorization happens, Republicans don't realize how badly they've lost the Black vote.
Michael: Right.
Peter: The divisions aren't quite as clear as they are right now. They also aren't as reliant in general on, like, a very specific subset of white voters. I think everyone sort of knows now that the last, like, 30, 40 years have seen, like, the so-called white working class shift over to the Republicans in massive numbers, right? Like, you have to understand that in 1982, that stuff hasn't really happened yet.
Michael: Very different world.
Rhiannon: Yeah.
Peter: But by 2006, it has started to happen. We've seen these trends. And so Republicans sort of are beginning to understand themselves a little more as a white identity party.
Michael: That's right. And so in some sense, this was like a very bad moment for reauthorization to come up. But in other ways, it was actually, I think, quite good. George W. Bush was looking at the end of his second term and hoping for some legacy-defining capstone legislation. At the same time, this is being debated.
Peter: It's right after Katrina. He's like ...
Michael: Yeah, exactly. I mean, he's just a fucking dumbass. But they were also debating big bipartisan immigration reform at this time.
Rhiannon: Oh yeah. That's right.
Michael: Right? It was, like, these two things. They had made major gains with Latinos between the 2000 and 2004 elections, and were hoping to maybe solidify them. And so you can see maybe some of that going on here with the VRA stuff as well, and maybe hoping to soften the Black vote a little, perhaps? You know, these were not woke people, right? These were genteel, patrician, WASP-y Republicans of an old-school variety that are very disempowered in the current party, who were, you know, I'm sure privately racist, sometimes publicly racist, but also just sort of operators who were looking for an advantage for their party wherever they could get it.
Michael: So there was some reason to think that maybe this is an actual opportune moment. The head of the Judiciary Committee in the House of Representatives, Sensenbrenner, he's a Republican who had been in the House back in '82 for the reauthorization. And you can look at his statements back then. He had been skeptical of Section 5 at the time. He had heard testimony on it, became convinced of its continued relevance and its continued need, and was so proud to have voted for it that he kept a copy of the '82 reauthorization in his office along with the pen Reagan used to sign it into law. This is the Republican who's the chair of the Judiciary Committee. He's looking at the end of his term and he's saying, if we wait 'til 2007, I'm gonna be replaced by a reactionary, so we should actually do this a year early. He puts a Democrat, Mel Watt, in charge of compiling a big record on this. In a lot of ways, we're very, very lucky how this turned out. Mel Watt does an incredible job, brings in dozens of witnesses, produces 12,000 pages of testimony and documentary evidence.
Peter: The ACLU put out, like, an 800-page report.
Michael: Yeah.
Peter: There was just, like, this massive, like, legal and PR effort to get everyone on board.
Michael: Right. It was a huge job of political persuasion. And it's starting in the House, and then there was a lot of political maneuvering done to sort of put the Senate in a position where they couldn't make their own bill. It was introduced into both houses concurrently and things like that so that there wouldn't be a lot of markup and wrangling and things like that. And as a result, a lot of the debate ended up being about the language provisions and the provision of, you know, second language or non-English voting materials and things like that. That was very tied up in the immigration debate. And that's not to say there weren't states and jurisdictions that were tired of being subject to Section 5 preclearance who were complaining—there certainly were. But it ended up being a massive political success, right? George Bush was very happy. He got to sign this big landmark piece of legislation. It passed 98-0 in the Senate, which is just insane to contemplate now.
Rhiannon: Israel's not even getting that.
Michael: [laughs] Yeah, seriously. A huge political coup, and just a very, very impressive job. All told, the legislative record is over 15,000 pages. It represents months of work, dozens of hearings, hundreds of people putting in, you know, countless hours into reauthorizing this, and doing so for 25 years while giving a reconsideration after 15 years to ensure that the provision was still necessary and effective. This was a huge political win, and I think it shows that these political fights are always worth undertaking regardless of the political conditions. You could have looked at the president and who controlled the House and Senate in 2006 and said, "I don't know if this is worth taking up," right? There is always value in doing the work, in fighting for a better, freer country.
Peter: So there's an emblematic case that I want to talk about. During the Rehnquist Court, there were a handful of big Voting Rights Act cases. One of them, maybe the biggest, Georgia v. Ashcroft in 2003. Georgia tries to do some redistricting, and under the Voting Rights Act, they need to get preclearance. They need to get their redistricting approved. The plan took a few districts that were heavily Black and turned them into districts that were just over 50 percent Black. The federal government rejected this. Lower federal courts agreed, but the Supreme Court steps in and says, "Actually, it's okay." And they changed the analysis required for these types of claims to make it friendlier to states trying to change their voting laws. It had previously been based on what was called the retrogression, the idea that you cannot cause the retrogression of minority voting power. And they basically said, "Look, that's, like, a little too narrow. It should be a little more holistic. You should be looking at all these other factors."
Peter: We don't have to get into the details, but I want to point out a trend. This is in 2003. In 2006, when the reauthorization happens, Congress expressly undoes this holding. The House report said that the ruling was inconsistent with the original and current purpose of the law. So if you're paying attention, this is the second time that this has happened, right? Back in 1980, the Supreme Court narrows the Voting Rights Act in Mobile v. Bolden. Congress has to step back in a couple of years later and say, "No, you got that wrong."
Rhiannon: Mm-hmm.
Peter: Early 2000s, the same thing happens again. So you have Congress passing this legislation saying, "Hey, here's a law to protect voting rights." Federal courts try to implement that law, and then a very conservative Supreme Court intervenes and says, "No, no, no, you're all doing it wrong. You should be doing it much more narrowly than that. You should be doing it a little more favorably toward these states." And then Congress is repeatedly forced to step back in and say, "No, you're wrong. This is what we wanted. It was being done correctly for decades, and then you fucked it up."
Michael: You fucked it up. Yeah.
Peter: So repeatedly interfering with the will of Congress on behalf of conservative political interests, which I guess brings us to 2013 and Shelby County v. Holder.
Rhiannon: Finally on the chopping block for the Supreme Court is the preclearance sections, the preclearance provisions of the Voting Rights Act. And, you know, Michael, you talked about how preclearance requirements led to, you know, 1,600 or something proposed modifications by states or local governments on modifications to their voting schemes or voting laws that the federal government struck down, said absolutely not, or required modification of.
Rhiannon: You know, that number, that volume shows why a county like Shelby County, Alabama, would be taking this kind of case straight to the Supreme Court, because their efforts across the South to try and disenfranchise Black voters never stopped. And suddenly they see the pathway to it with the Supreme Court headed up by now Chief Justice John Roberts in 2013, right? So what happens in the case? What happens in Shelby County? This is a case by a specific plaintiff making a specific argument. So you would think a Voting Rights Act case that's taken to the Supreme Court, generally the plaintiff here would usually be somebody who feels they have been disenfranchised, they have been harmed, right? Or a class of plaintiffs who say this policy is leading to our votes being diluted or our right to vote being taken away. No, this is a county suing the federal government, saying that preclearance requirements in Section 5 of the Voting Rights Act and also the formula by which preclearance requirement is determined in Section 4(b), that that is unconstitutional as to them.
Rhiannon: And of course, what happens, we know. one of the worst cases of the John Roberts era, one of the worst cases in the history of the Supreme Court, we can say, is that the Roberts court rules on the side of Shelby County, Alabama, and by extension, all of the jurisdictions and all of the states that want to disenfranchise Black and minority voters. And the argument there, the holding, it's absolutely absurd, but the holding, of course, in a sort of ticky-tack way, they keep the Section 5 preclearance requirement intact, but that 4B section in the Voting Rights Act, which is again the formula by which the jurisdictions that would fall under the preclearance requirement is determined, the Supreme Court in that opinion written, of course, by the Chief Justice John Roberts and joined by Justices Scalia, Anthony Kennedy, Clarence Thomas and Sam Alito, say that that formula is unconstitutional. It is treating—this is unconstitutional, disparate treatment of the states.
Peter: It exceeds Congress's power.
Michael: Mm-hmm.
Rhiannon: Yes, exceeds Congress's power to enforce the Fourteenth and Fifteenth Amendments in this way. Congress doesn't have the power to do this.
Peter: Because the data that they were using was outdated, right?
Rhiannon: And you're treating states differently and in this disparate and unequal way based on outdated information and data. I mean, look at the world today, John Roberts says in this opinion. Black voters vote a lot, he says, right? Things are good. I don't see discrimination in voting. Why would some states have to get proposed changes to their voting policies pre-cleared and approved ahead of time by the federal government? That is totally unfair. What are you talking about? Of course, the absurdity, the absurdity that is on its face in this opinion is that to the extent that enfranchisement and equality in voting and the increase in Black voting in this country has happened has been because of the Voting Rights Act. Has been because of the preclearance requirements under the Voting Rights Act.
Peter: Yeah.
Rhiannon: And finally, what you have in Shelby County is a massive culmination in John Roberts' legacy, his project of dismantling the VRA, which you saw from when he was a young whippersnapper back during the Reagan years.
Peter: I honestly think you might be underselling how bad the arguments in Shelby County are. I just reread it for the first time, like, since we've done the episode.
Michael: It's so bad.
Peter: Like, the court never actually explains what the constitutional mechanism for its argument is, right?
Michael: No, there's no citation of the Constitution at all. They cite the two cases that were about, like, states being, like, allowed into the Union that were, like, formerly territory. They're not even on point. Like, it's just—it's made up.
Peter: If you take a step back, the Fifteenth Amendment says no racial discrimination in voting, and it says Congress can pass laws to affect this amendment, to put it into force.
Michael: Right.
Peter: So Congress does that: the Voting Rights Act, right? And then John Roberts says, no, Congress actually exceeded its power here, because the formula it's using is too outdated.
Michael: Yeah. Like, where are you getting the power to say this?
Peter: Congress can pass laws to protect voters from discrimination unless the formula it uses is too outdated, like, according to John Roberts? The Constitution says Congress can do this, but there is a hidden implied exception for outdated formulas? Like, does that sound right to you? You don't even need to use a formula. Like, the Constitution doesn't say you have to use a formula to do this. Like, obviously it doesn't say that, but you use a slightly older one.
Michael: In the Congressional Record, so many hearings, so many reports, so many witness testimony, but John Roberts is being like, "I disagree."
Peter: It just doesn't make any sense. And, you know, in another context, they would never let this fly. Like, I'm sure that there's some fucking formula somewhere figuring out how much of the defense budget goes to one weapons system or another. If a court was like, "This actually exceeds your constitutional powers, it exceeds your defense powers because the formula is too old," no one would think that that was real. Like, it's just—it's inconceivable.
Rhiannon: And what you get in effect is John Roberts being able to talk out of the side of his mouth, because the holding is not that the Section 5 preclearance requirement itself is unconstitutional, just the formula by which it's determined who falls under the preclearance requirement. This in effect dismantles, does away with the preclearance requirement.
Peter: And, you know, like you mentioned, Rhi, John Roberts says, we've seen all these improvements in racial parity, so maybe we don't really need this law. This leads to the very famous RBG line, that this is like throwing away an umbrella in a rainstorm because you're not getting wet, right? The reason that there has been parity, more parity is because of the Voting Rights Act. The bottom line here is that the Constitution says Congress can do this. Congress did it, and the Supreme Court steps in to say they did it wrong for reasons that cannot be located within the Constitution or anywhere else, right?
Michael: Right.
Peter: Before we move on, I want to discuss one thing from this case. During oral arguments, Scalia made a point.
[ARCHIVE CLIP, Antonin Scalia: And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is very likely attributable to a phenomenon that is called—called "perpetuation of racial entitlement." It's been written about whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.]
Peter: So what Scalia is saying here is that the fact that the 2006 reauthorization of the Voting Rights Act passed unanimously in the Senate is actually kind of suspicious, because it indicates that these politicians are subject to some sort of social or cultural pressure to do this, and that it's somehow the court's responsibility to extricate them from that pressure, to release them from that situation. I think this is absurd, but it also reveals things about the conservative psyche, right?
Rhiannon: Yeah, it's also sick. It's also sick, because it's not just like, oh, these congresspeople, members of Congress in passing this law, like, you know, there's public pressure, sort of like social pressure, but him identifying it explicitly as like a racial entitlement movement is to cast aspersions on Black people, on minority voters, to say that they feel entitled to something, and that there's so much pressure on Congress to bow to this entitlement. I mean, it's wild! It's sick!
Peter: Keep in mind—and I think we talked about this in our original Shelby County episode—but the only thing that any individual person can ever get out of the Voting Rights Act is a single vote. You know what I mean?
Rhiannon: [laughs]
Michael: Yeah. It's insane. Also, I feel like it's worth saying for the record, there is a term for massive social pressure on politicians to vote in a certain way. It's called "politics."
Peter: It's just politics.
Michael: It's called politics.
Peter: It's just politics. You just don't like where the politics led. And I'll also add—and this is my favorite little factoid—that yes, the reauthorization passed the Senate 98 to nothing. You know what else was 98 to nothing? Antonin Scalia's confirmation vote, right? So, you know, why was—why was Scalia unanimously confirmed? Well, a big part of it was because he was the first Italian-American justice, right? No one wanted to oppose that. In other words, a racial entitlement, folks.
Michael: That's right. Now you will not believe what happened after the Supreme Court struck down the formula for preclearance, and that is states started passing restrictive voting laws. Literally, Texas on day one—they didn't make it 24 hours—they had a voter ID law that had been previously shot down by the DOJ, they were like, "Fuck it, we're free. Voter ID."
Rhiannon: Right.
Michael: Yeah. Over a hundred in the subsequent decade, laws passed in at least 29 states according to the Brennan Center, the report from a couple of years ago, so I'm sure those numbers are higher. And it's had an effect, right? Like, there's some political science that suggests counter-mobilization has been effective, but the two biggest, most robust studies we could find both suggest actually that this has had an actual real effect on racial voting disparities.
Rhiannon: Of course!
Michael: That has widened the turnout gap between Blacks and whites, between Hispanics and whites. And according to the Brennan Center's data, which has over a billion data points, the turnout gap has been widening in general, but it's happening at twice the level in previously under-pre-clearance jurisdictions as it is in non-pre-clearance jurisdictions. So what we're seeing is ...
Peter: Maybe the data wasn't that old, you know? Maybe the data was right on.
Rhiannon: Right.
Peter: Just old enough.
Michael: The data—the 15,000 pages in the Congressional Record, the dozens of witnesses. Yeah, it turns out maybe they knew what the fuck they were talking about and John Roberts got—this fucking guy. You know, he was born in Buffalo. He's a Yankee. What the fuck is wrong with this guy? Why?
Peter: I don't know.
Michael: I hate him so much. I hate him so much.
Peter: I hope he's a Bills fan.
Michael: [laughs] Yeah. Yeah.
Peter: That would make me—that would give me some comfort. So we've said that the Voting Rights Act has these two major components. We've been talking most of this episode about preclearance, but the other one is Section 2, which gives parties the right to sue for discrimination. So if you feel like you have had your voting rights impacted, infringed, you can sue under the Voting Rights Act. That is still going even though preclearance has been gutted, but it's functionally on the chopping block this year in a case called Louisiana v. Callais. We will get into the details when the case comes down, but basically, Louisiana created some majority-minority districts in order to comply with its obligations under the Fifteenth Amendment. And some white voters—they actually describe themselves as non-Black voters—they file suit saying, "Hey, the government shouldn't really be allowed to consider race during this process." Right? Like, that's—it should be race neutral. Very much a mirror of, like, affirmative action arguments, right? You have a racialized problem.
Rhiannon: Right.
Peter: The government steps in to address it with a solution that factors in race, and then conservatives say, "No, you're not allowed to factor in race," right? If they win this, Section 2 is still there, but it would be severely undermined, because the government would not be able to properly consider race, even though they are addressing a problem that is about race.
Rhiannon: Right.
Peter: The same sort of absurdity that we've seen in the affirmative action context, but even more acute, because here we have this, like, unquestionably constitutional piece of legislation, right? It flows directly from the Fifteenth Amendment. The Fifteenth Amendment is like, no voting discrimination, and you can pass laws to, to make sure this happens.
Rhiannon: Right. And a quite clear piece of legislation, a quite explicit piece of legislation just being outright misinterpreted.
Peter: Right. And look at the trend that we've seen. 1980, the Supreme Court narrows the Voting Rights Act, Congress has to step back in. 2003, Supreme Court narrows the Voting Rights Act, Congress has to step back in. Now in the modern political era, Congress has been relatively dysfunctional. These types of, like, big bipartisan bills, especially on voting rights ...
Michael: Forget about it.
Peter: ... are not something that you're—that you're going to see. And so the Supreme Court, it's like a fucking shooting gallery, right? Congress is not stepping back in, so the Supreme Court would look at that and say, "Well, Congress can always step back in and amend this if they feel the need, if they don't like Shelby County, for example." But they know that Congress is different than it used to be. And more importantly, they had no actual basis for doing it to begin with. They had no actual basis for Shelby County to begin with. So they keep stepping in, fucking with things that Congress has done, right? Congress, the manifestation of the will of the people in the federal government. And then they get to step back and be like, "Well, Congress can fix it if they—if they don't agree."
Rhiannon: Right.
Michael: Yeah.
Peter: And the only other thing I'll say about this is I think you can look at this stuff in a vacuum, and you could maybe think of it like it's the affirmative action cases, right? "Oh, the conservatives, they don't like to factor in race, right? They don't like to talk about race." But I think if you step back further, it makes more sense. I look at what's happening with ICE. I look at Trump's foreign policy. I look at what Trump has done to the administrative state. Is any of this stuff popular?
Michael: No.
Peter: Did they even try to get input via democratic institutions?
Rhiannon: Process at all? Right. Right.
Peter: This is a political movement that is comfortable with minoritarian rule, and is not particularly interested in democratic ideals per se, right. The idea of ruling without the consent of the governed is perfectly acceptable to them. They are happy to strip away your voting power. If you protest, if you object, they don't feel any obligation to entertain you. They're willing to use violence to suppress your voice, right? If you occupy a political space opposite them for long enough, they'll just strip funding from you. They'll defund your state, right?
Michael: Yeah.
Peter: These are people who have no interest in small-d democracy, right? And I think you see it in voting rights and you see it all across the project.
Michael: Right. And, you know, to tie it back to what we talked about in the first episode, movements like that will always rely on violence. And we see that we see that in the violence of ICE. We see that in the violence of right-aligned street gangs that are now roaming the streets of Minneapolis, attacking anti-ICE protesters and legal observers and things like that. You saw that in the violence against anti-war, pro-Gaza protests on college campuses. There is a violence that's necessary to maintaining minoritarian rule. And the longer it goes on, the worse it's gonna be.
Rhiannon: Yeah. And legally, what this kind of authoritarianism and minoritarian rule looks like in the law is a Supreme Court that's all too willing to help out with suppression of the vote, with disenfranchisement efforts. And they'll do it in the law, to say nothing of the First Amendment cases and repression of speech and the like. So you can see that it's just—that it's one component of the much, much broader project, where hand in hand you have Trump, you have John Roberts, you have Greg Bovino, and the rest of these piece of shit losers holding on for dear life to their minoritarian rule by any means necessary.
Peter: Yeah. And to get prescriptive before we go, what I mentioned in the last episode is that you could see a trend. The great successes in civil rights history had this in common where they recognized the bad actors.
Michael: Yeah.
Peter: And disciplined them, treated them as if they were bad actors. It happened in Reconstruction, right? Troops occupied the South. They were not allowed to function like normal states. It happened during the civil rights era when you passed the Voting Rights Act, which expressly says, "Hey, some jurisdictions are bad actors, and we shouldn't be treating them as if they're good faith actors." Right?
Michael: And they don't get to do whatever they want with voting. Like, we have to supervise them like fucking nannies.
Peter: This is what's missing, I think, from liberal politics and Democratic—big-D Democratic politics right now.
Michael: That's right.
Peter: You cannot—when we take power back at some point in the future—go hands-off and hope that normalcy will return or that sanity will return or anything like that. These are bad actors who need to be brought to heel. And if you don't do it, then they will do it to us. That's what you're seeing right now.
Michael: That's right.
Rhiannon: Accountability, right? Democratic accountability, accountability to the project of building a democracy, of building an equal democracy where people have equal rights, are protected by a constitution, are protected by things like the Voting Rights Act. Like, accountability is essential to democracy, is essential to what the United States, you know, ostensibly was trying to build in the Constitution.
Rhiannon: And, you know, I think in these two episodes, going over 150 years of history here, you know, from, like, the mid-1860s to now, I see, you know, a failure of liberalism, a failure of a system. I see obviously something we're doing is a bit of a eulogy to the VRA, the Voting Rights Act, with Louisiana v. Callais, the Supreme Court case that's on the docket this term. But I also think that I want people to walk away from these couple of episodes with a deeper understanding of that history, a deeper understanding of how the system works, and especially the relationship that the Supreme Court has had in this system in actually supporting the dismantling of the Voting Rights Act into here, the 2020s.
Peter: You know, there's a way in which the Supreme Court is a small problem, right? The problem on the Supreme Court is six people, and those six people have subverted the will of the American people on voting rights for over half a century.
Rhiannon: Mm-hmm.
Michael: Mm-hmm.
Peter: The amount of power that they've aggregated is the reason that we have a podcast. But it's six people at the end of the day. It's not an insurmountable force, you know what I mean?
Rhiannon: Yeah.
Peter: It does not control our country's destiny in any meaningful way.
Michael: That's exactly right. Their power, such as it is, is brittle. I think to that point, like, it's easy to look back at this 150, 160 years of history we've been covering and be frustrated, be discouraged, see all these victories that turned into defeats, see all the backslidings, see the end of the Voting Rights Act on the horizon. But I don't think that's the right way to think about it. You know, I think segregationists probably feel the same way looking at this history. The slavers thought they had won when they got all their compromises in the Constitutional Convention and the protection of slavery essentially built into our constitutional order. And then they got their asses kicked in the Civil War. And I'm sure segregationists felt like they had won when they rebuilt a system of political inequality in the Jim Crow South. But they didn't win. The fight doesn't end.
Michael: And just like modern conservatives are the heirs of slavers, are the heirs of segregationists, if you are engaged in any sort of political activity, trying to build a better and more complete democracy, are the heirs of the Union. You're the heirs of the abolitionists. You are the heirs of the people who fought Jim Crow. And it's a fight that continues today. This is not the end. It's just a new phase. And I see it every day when I read the news. I get angry, I get discouraged, but then I look at what's happening in Minneapolis, the way the entire city has come together to oppose these fascist thugs that are roaming the streets. And I am more convinced than ever that once again, we are gonna win.
Rhiannon: Yeah, we inherit a fight here. We inherit a fight that is an honor to take up. And, you know, in these two episodes, I hope we've just shown a little bit about, like, some of the mechanics of this, right? Like, how it is built, how it is dismantled, and what it is that we have inherited.
Peter: All right, folks. Next week, a mailbag episode. We'll be answering your questions. These days, most of your questions are basically, "Here's this thing that's happening. How could this possibly be legal?" And then we will explain to you that it's not, but it's still happening.
Rhiannon: Right.
Peter: Follow us on social media @FiveFourPod, subscribe to our Patreon—Patreon.com/fivefourpod—all spelled out—for access premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.
Michael: 5-4 is presented by Prologue Projects. This episode was produced by Allison Rodgers. 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 merch, access to our Slack community, ad-free episodes and more, join at Patreon.com/fivefourpod.