How Brett Kavanaugh views time

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Sean Rameswaram: Today Explained, episode 996 for What It's Worth. I'm Sean Rameswaram. On the show today, we're going to talk about Brett Kavanaugh's potentially transcendent philosophy of time and space. But before we get there, a refresher on the state of American democracy in this midterm election year. States across the country are rewriting their election maps, the maps that determine which voters get grouped together to pick which candidates for office. And long-term listeners of the show will remember that there's been a lot of controversy over the last decade about how these maps get drawn. Have districts been gerrymandered? Are politicians picking their voters and not the other way around? Are the maps diluting the political power of urban voters or rural voters or Democrats or Republicans, white voters, not white voters? The Supreme Court once again weighed in on these questions on Monday.

Sean Rameswaram: The story starts in Alabama. In this case, Alabama drew a map and there was a very, very strong legal argument that the congressional map that Alabama drew was an illegal racial gerrymandering. gerrymander. Ian Moheiser, Vox. It illegally denied black voters representation that they lawfully should have gotten. In fact, the argument that this was an illegal gerrymander was so strong that a panel of three judges, two of who were appointed by Donald Trump, said, yeah, that's an illegal gerrymander. You can't do that, guys. Federal judges blocking the state's newly drawn congressional districts just months before the primaries. And the Supreme Court halted this decision by these two Trump judges. They said that Alabama can use the racially gerrymandered map that it wants to use. They strongly implied that they're going to let Alabama do this forever. And they also suggested that they are going to permanently change the law governing racial gerrymanders to make it much, much easier for states to draw lines that maximize the influence of white voters and minimize the influence of non-white voters.

Sean Rameswaram: Okay, let's dial it back and talk about the background of this case. What's going on in Alabama? Why are they redrawing their maps to begin with? Give us the deets. So as a constitutional matter, every state is required to redraw its districts every 10 years. That's to prevent a situation where you have districts that stay in place forever and people move and suddenly you have one district with a million people in it and another district with like three people in it. You don't want that. So every 10 years, states have to redraw their districts using the new census data. Alabama will hold on to all seven seats in the U.S. House of Representatives, a big win for the state's future. So Alabama just got its 2020 census data. It drew maps that are fairly similar to the maps that it's had in the past, which only had one black majority district. That means that black people will represent about 14 percent of the state's congressional delegation. But black people now make up 27 percent of the state. And that's the reason the judges say they are throwing out the map. They're demanding state lawmakers draw up two districts where a sizable portion of the electorate is made up of black voters. And the idea here is that those numbers should be as close to each other as possible. The representation that black Alabamans have in Congress should sort of equal their population of Alabama?

Ian Moheiser: Normally, yes. I mean, there's a few other factors that go into it. It matters whether black voters are geographically compact. You know, you can imagine a situation where like if black voters were evenly divided throughout the whole state of Alabama, then it would be really hard to draw a black majority district because, like, you just don't have a coherent grouping of black voters that can be brought together into a single district. But that's not the case here. You know, black voters in Alabama typically live either in one of a handful of major cities or they live in what is called the Black Belt. The Black Belt of Alabama, named for its dark rich soils, contains counties in the central part of the state. But because the soil there is so fertile, during slavery, many black people were brought to that area. During the 20th century, Alabama's black belt became a main stage for the civil rights movement, including the Montgomery bus boycott and the Selma to Montgomery march. And there's still an enormous number of black people living in that black belt area. So like the reason I describe the geography of the state is just to make the point that it actually very easy to draw maps where black people have congressional representation that more or less proportional to their population

Ian Moheiser: It would be very easy to draw maps with two congressional districts that are black majority. And that would mean the 27 percent of Alabamans who are black would get about 28 percent of the representation in Congress. And that seems right. Certainly better than them only getting 14 percent of the representation. So what is the map that Alabama ends up with look like? The one black majority district that Alabama drew has kind of this weird U shape that encompasses both Birmingham and Montgomery and also include some of the black belt. So that packs a whole lot of black voters into one district. You know, if you have a district that's 80 percent black, you only need 50 percent plus one to elect someone. And then every other vote is a wasted vote. And then the black belt is cracked up into, you know, three or four different districts. And so the black voters who don't live in Montgomery and Birmingham, who don't live in that one majority black district, wind up getting split up into several districts that are majority white. So in effect, you know, their vote doesn't count.

Sean Rameswaram: That's right. Two new lawsuits have been filed over the state's legislative and congressional district maps. So there were several lawsuits. One was brought by a Democratic state senator who is black. One was brought by a bunch of community and civil rights groups. And they all basically made the same argument. A state that's approximately 40 percent Democrat with only one representative out of seven. I mean, that speaks for itself. In Alabama, black people make up 27 percent of the state. They are coherent. They are packed together in like a small area of the state. It is very, very easy to draw a map that has two black majority districts. And the Voting Rights Act does not permit the state to draw maps that maximize the power of white voters at the expense of black voters. Their argument was that under the Voting Rights Act, they have to draw a map that doesn't crack up the black belt so that it minimizes the influence of those black voters.

Sean Rameswaram: This is where a couple of Trump appointees and a Clinton appointee, I believe, take a look at this and say, yeah, you're right. That's right. I mean, this was a really straightforward case under existing law. So under existing law, there's actually several factors that courts have to look at. But the two most important factors are, is it possible to draw geographically compact districts that have however many black majority districts the plaintiffs are asking for in this case, too? And then the second question is, does the state have what's called racially polarized voting? So like in this case, almost all the white people in Alabama vote for Republicans, almost all the black people in Alabama vote for Democrats. That means that if you have a district that's like 60, 40, what you know, then whoever's the 60 is going to win. And there's a bit more complications here. But generally, when you have both of those conditions where you have a geographically compact group of racial minority voters and you have that sort of racial polarization, states are required to draw districts in ways that at the very least do not dilute the influence of the minority voters.

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Sean Rameswaram: Before we parted ways there, this Alabama election map business was about to head to the Supreme Court of the United States, the highest court in the land. Let's pick it up right where we left off with Vox's Ian Milhiser. Right. So after the state lost in the lower court, it then brought this case to the Supreme Court and it brought it under a really silly. I mean, like, I don't know why Alabama paid their lawyers to come up with this theory because it's really dumb. Oh, Ian, that's not nice. I mean, it's a dumb theory. OK, so let me go a little bit into the weeds here. So when you bring this sort of case challenging a racial gerrymander, the very first thing that you have to do is you have to produce a sample map, which shows that it is possible to basically get the outcome that you want. So the plaintiffs in this case were asking for two majority black districts. So the first thing they had to do was draw a sample map that actually has two black majority districts in it. Because if it's not possible for them to win, if it's not possible for them to get the relief they want, then there's no need to have a lawsuit. So the plaintiffs produced quite a few sample maps. They hired a mathematician to draw several of them. And the sole purpose of these maps was just to prove that it was possible to have two black majority districts.

Ian Milhiser: It wouldn't take the entire county of Montgomery, but a portion of the county of Montgomery where blacks are concentrated. The state's argument and like this is going to sound really dumb, but it really is this dumb. The state's argument was that when it drew these sample maps, whose purpose was to prove that it is possible to have two black majority districts, the plaintiffs took too much account of race. One of the things that the reapportionment committee was working very diligent on was to not draw lines according to race. It was about numbers. You're not allowed to think about race when you're doing the thing to discuss race. Exactly. Yeah. It's like trying to draw a picture of an elephant when you're not allowed to ever see what an elephant looks like. I mean, the whole point of these sample maps is to prove that there are enough black people who are geographically compact that you could have two districts. I don't know how you could do that if you don't think about race. Like, it's just not an easy task.

Ian Milhiser: There's no way that that argument would carry any water at the highest court in the land, right, Ian? I mean, you would think so. How did that argument carry water at the highest court in the land, Ian? You know, if I could get inside the beer rattled brain of Brett Kavanaugh. I liked beer. Still like beer. And figure out how he came to this conclusion. Because I mean, like, well, he wrote about it. What did he say? He said two things. So the first thing that he said, and again, this is just as silly as everything that I said before. There's a case called Purcell. And Purcell said that when an election is close, court should be very cautious about handing down decisions that change a state's election rules because you don't want people to be confused because they don't know what the election rules are. When's the election? Isn't it in November? Yes, the election is in November. You have already spotted the problem with Brett Kavanaugh's opinion.

Ian Milhiser: So apparently this Purcell window where we're too close to an election for courts to be able to do anything is nine months long. That's a whole pregnancy term. I mean, I feel like if you're going to challenge a flawed election law based on a new map, this is exactly when you would do it, isn't it? Yeah. Like when else? Like Alabama, the state legislature passed the law enacting these maps in November. In the lower court, there were seven days of testimony. There was a 2000 page transcript of all that testimony. There was a thousand pages in the record. This is a massive, complicated case. The opinion that the lower court wrote was 225 pages long and they handed it down, I think, on January 24th. Now, like, that's just a difficult task. Like, if you're going to get three judges to agree on a 225 page opinion, the fact that they were able to get it done by January when the law was passed in November, like they really hit the gas on this.

Ian Milhiser: So I just don't understand how they could have done it quicker. And even if they could have done it quicker, like if nine months is too long of a window, why is it 10 months? Why is it 15 months? I mean, I just don't understand what we're doing here. And did any of the other justices, you know, break out their counters and go, wait a second, Brett, we've got nine months here. Well, the liberal justices and Roberts disagreed. It was a five to four decision. Roberts. Yeah, Robert. And Roberts is not a fan of the Voting Rights Act. No. Chief Justice John Roberts asked if the government believed the citizens in the south are more racist than the citizens in the north. You know, he wrote the Shelby County decision. In the nearly a year since the Supreme Court struck down a key portion of the Voting Rights Act, five states have tightened access to voting. And even he said this went too far. But I mean so to answer your question only one other justice joined Kavanaugh opinion That was Justice Alito But Kavanaugh is the median justice on the Supreme Court These sorts of politically charged cases there are typically four justices to his right There are typically four justices to his left. So if Kavanaugh says something like it's just really hard to find five votes to say, no, no, dude, I'm sorry. You don't get what you want. And this is apparently what he wants is this extraordinarily wide Purcell window.

Ian Milhiser: And I should say that Kavanaugh did have one caveat in his opinion. He did say, well, even if it's close to the election, if the answer is really clear cut, like if it's just obvious that the plaintiff should win, then maybe this like you can't do anything close to an election rule doesn't apply. The problem is like even Roberts wrote it like Roberts's dissent said, dude, this one's clear cut. Under existing law, there's really no question here that the plaintiff should win and no Alabama's argument that you can't take account of race when you're drawing the maps where you have to engage in a race conscious inquiry in order to draw the maps. I hope I'm not being uncharitable here, but this opinion, this decision makes no sense. Does this mean that the Supreme Court basically doesn't have a bar when it comes to voting rights or if it doesn't, where is the bar now? I'm struggling to understand it.

Ian Milhiser: Well, this is what scares me. So the Supreme Court in the last 10 years has handed down before this Alabama case, they handed down three major decisions. Shelby County, Abbott v. Perez and Brnovich v. DNC. Each one took a massive chunk out of the Voting Rights Act. I mean, after the last of those three decisions, I mentioned a lot of voting rights scholars whose work I really respect said, yeah, I don't think there's much of a Voting Rights Act left if there is any Voting Rights Act left. The Supreme Court allowed partisan gerrymandering to happen without any check by the federal government. Chief Justice John Roberts writing the opinion, saying there is no way to properly test and decide whether district lines have been drawn for partisan reasons. They've said that states can pass laws to attack imaginary problems. You know, you can pass a law, claim it exists to fight voter fraud, even if you can't even prove that there's any voter fraud in your state. By a six to three vote, the conservative majority on the court upheld two election laws in Arizona. One criminalizes the collection of ballots by third parties. The other requires election officials to throw out ballots cast at the wrong precinct. The Supreme Court has been extraordinarily hostile to voting rights.

Ian Milhiser: And part of the reason I keep bringing up how weak Alabama's legal arguments were in this case is because this would have been a good opportunity for this court, which is catching a lot of flack because people think they're being too partisan to say, OK, Republican Party, you're asking for too much here. This lawsuit is too silly. And if they're not willing to say that in this case, I'm just really scared that they're not ever going to say it. And will they have opportunities to weigh in on this again before the November midterms? So probably not before the November midterms. So the specific effect of the order they handed down on Monday is that the maps that were drawn by Alabama Republicans will remain in effect for the 2022 election. the Supreme Court is going to hold a full hearing on this case. Like there will be briefing. There'll be an oral argument. It's entirely possible that after briefing an oral argument, the court will go, oh, shucks, we goofed in that one order we handed down. We really should have said what those two Trump judges said in the lower court. So it's still theoretically possible that Alabama's maps could be struck down. But given the very silly reasoning in this order that we just got, I just don't know how likely that is. I mean, if they weren't willing to follow the lead of these two Trump judges in the lower court in this very silly case involving very silly arguments by the state of Alabama, I mean, again, I just don't know where they're going to draw, if they're ever going to draw the line.

Sean Rameswaram: Ian Millhiser is Vox's senior correspondent on the Supreme Court. Will Reed is the producer of our episode today. Matthew Collette is the editor. Afim Shapiro is the director of sound. And Laura Bullard is the fact checker. Today Explained is the program. Thank you.

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