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Brigid Bergin: It's The Brian Lehrer Show on WNYC. I'm Brigid Bergin from the WNYC and Gothamist newsroom and host of a new politics show, The People's Guide to Power, airing Sundays at noon here on WNYC. I'm filling in for Brian who is off for the holiday. To all our Jewish listeners, we hope you have an easy fast, and a meaningful Yom Kippur. On today's show, our series 30 Issues in 30 Days looks at how the culture wars have played out in education here in New York state and how Governor Hochul's Republican challenger Lee Zeldin has campaigned on what he calls parents' rights.

Plus, there's an important deadline coming up at the end of this month for people who qualify for public service loan forgiveness. Now, this is different than the Biden administration's plan to forgive up to $20,000 of debt for some. There's no limit on the amount of forgiveness through this program. If you work for the government or a non-profit, you probably qualify, and you should definitely tune in after the news to hear what you need to do by October 31st.

We're going to end today's show talking about what kinds of music you play in your home and whether your kids like your playlists. But first, the US Supreme Court kicked off another term with the nine justices returning to the bench this week. This comes, of course, after a tumultuous summer where the Court issued a series of high-profile decisions where conservatives dominated, expanding gun rights and upending abortion access. In fact, data compiled by professors from Washington University in St. Louis and the University of Michigan found the last time the Court produced as many conservative decisions was in 1931.

In this last term, conservatives prevailed in 62% of the decisions. This new term's poised to be dramatic in its own right, starting with one of the first cases justices heard oral arguments in yesterday. The case, Merrill v. Milligan, looks at a new congressional map for the State of Alabama, which were drawn to allow only one district likely to elect a Black representative despite Black residents making up 27% of the population. The decision will have major and lasting voting rights implications. Joining me now to talk more about this case is Nation justice correspondent Elie Mystal, author of Allow Me to Retort: A Black Guy's Guide to the Constitution. Elie, welcome back to WNYC.

Elie Mystal: Hi, Brigid. How are you doing? As you said earlier, let me wish everybody an easy fast today.

Brigid Bergin: Listeners, do you have a question about this case or other cases before the Supreme Court this term, or do you have another question about the Court and the justices for our guest, author and Nation justice correspondent Elie Mystal? Call us at 212-433-WNYC, that's 212-433-9692, or tweet @BrianLehrer. Elie, let's get into it. Merrill v. Milligan deals with maps drawn for this year's congressional races in Alabama. Those maps were found to be racially gerrymandered by a panel of Trump-majority federal judges. They were ordered to be redrawn, and yet, this US Supreme Court ordered them to be used. Did I get that right? Can you add a little bit more by way of background?

Elie Mystal: Yes, absolutely. Alabama did its districting based on the 2020 census. Alabama has seven congressional seats, they drew only one majority-minority district. Well, as you pointed out, Alabama is actually 27% Black, so, therefore, it makes sense for them to have two majority-minority districts. Two of seven is 28%, for those of you who haven't seen a TI-87 in a while.

That's what they should've done. They didn't do that for obvious reasons. A three-judge panel, the 11th Circuit, said that, "Yes, this is an easy violation of the Voting Rights Act, specifically Section 2 of the Voting Rights Act, which makes it illegal to discriminate voting on the basis of race or dilute voting on the basis of race." That was a point-and-click violation of the Voting Rights Act, but the Supreme Court back in February ordered Alabama to use the racist maps in a closed decision with probably Brett Kavanaugh being the swing vote.

Brett Kavanaugh said that we were too close to the midterms back in February to stop the racist maps, so there you go. Then yesterday, they actually had the oral argument on the merits of the case, whether or not the maps actually violated the Voting Rights Act. The conservative justices, the six of them, in different ways, seemed skeptical that the Voting Rights Act or racial discrimination is even a thing that we can argue anymore when confronted with maps as racist as Alabama's.

Brigid Bergin: Elie, I have a confession. I have an alert on your tweets so I could follow the news out of the Court. It's a silent alert, fortunately, but I got a lot of them yesterday because you were live tweeting those oral arguments. I want to unpack some of the lines of questioning, starting with some of the more liberal justices. Justice Elena Kagan said that, under precedent, this case would be "a slam dunk". What did she mean by that?

Elie Mystal: Again, the Voting Rights Act Section 2 makes it fairly clear what you can and cannot do in voting. There is a Supreme Court precedent case called Thornburg v. Gingles, [chuckles], I'm saying it the Sam Alito way, which lays out a fairly complicated and fact-intensive test to see if a district or if a redistricting map is racially biased.

This Alabama map meets all of those criteria quite easily. The key issue here is that the second Black district in Alabama should have been along what's colloquially known as the Black belt. People who are familiar with Southern racist geography and where Black people were allowed to live at various times in history know that there's a cluster of Black people, a cluster of Black towns, and Black-majority cities that goes from East Texas, sweeps through the Old South and terminates on the eastern coast of Virginia.

The part of the Black belt that sweeps through Alabama, west to east, is where the second Black district should've been, but instead of making that district a cohesive, Black district, they split it up into four or five districts. In the gerrymandering parlance, this is called cracking, it's called taking a critical mass of non-white voters and cracking them, splitting them up so they are subsumed in larger masses of white voters. Notably, they didn't crack a district they made over the span of the Gulf Coast, a very white area of Alabama right on the coast of the Gulf of Mexico there. They didn't crack that district, they kept all the white voters together on the Gulf Coast of Alabama, but they cracked the Black belt district.

Elena Kagan was saying, very obviously, that this is a point-and-click violation of Section 2 of the Voting Rights Act. Again, as you mentioned, Brigid, there was a three-judge panel, the 11th Circuit, two of those judges were Trump judges, they said it was a slam dunk, easy point-and-click violation of the Voting Rights Act. The idea that this is okay-- The fact that the Supreme Court is hearing this case at all is one of the signs that we are dealing with an extremist conservative Court, an extremist Republican Court, who sees itself not as the enforcer of basic, long-standing Supreme Court doctrine but simply the enforcement arm of whatever the Republican Party feels like it wants today.

Brigid Bergin: I want to pick up on this idea of some of what Justice Kagan was saying in terms of not just what this case could mean for Section 2 of the Voting Rights Act but how this is coming on top of a series of decisions over the past few years that have been chipping away at the power of the Voting Rights Act.

Elie Mystal: Brigid, let me do it this way. To really explain this, I got to go back a bit. [chuckles]

Brigid Bergin: Before you go back, let me play a little piece of what Justice Kagan said-

Elie Mystal: Oh, sure.

Brigid Bergin: -yesterday. I just want to tell our listeners, this is about a minute and a half of Justice Kagan, and then, Elie, I'm going to ask you to unpack a lot. She said a lot in this minute and a half. Let's go ahead and play this clip.

[start of audio playback]

Justice Elena Kagan: This is an important statute. It's one of the great achievements of American democracy to achieve equal political opportunities regardless of race, to ensure that African Americans could have as much political power as white Americans could. That's a pretty big deal. It was strengthened, this statute, in 1982, when this Court interpreted it too narrowly for Congress's taste. Congress said, "No, we didn't mean that at all," and made this into a results test. Now, in recent years, this statute has faired not well in this Court. Shelby County looks at Section 5 and it says, "No, Section 5, we don't need that anymore." One of the things that says is we have Section 2.

Then Brnovich comes along, and that's a Section 2 case. The court says, "You know what? Section 2, they're really dilution claims. This is a denial claim and so we can construe that very narrowly. Of course, there's just all these cases that are delusion claims, that's really what Section 2 is about. Now, here we are, Section 2 is a delusion claim, the classic Section 2 delusion claim, and you are asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail a lot. What's left?"

[end of audio playback]

Brigid Bergen: Like I said, she does a lot in that minute and a half, Elie, but I think then the quote that stood out for me was she said, "The statute has not faced well in this court." Can you help us unpack some of what she's saying there?

Elie Mystal: Sure. My pick for the most important piece of legislation in American history is the Voting Rights Act of 1965. We are an apartheid nation before the Voting Rights Act of 1965. The Voting Rights Act is the thing that made the 15th Amendment real, that made the 19th Amendment real for women of color, is the thing that allowed for equal suffrage in a democracy.

It's the most important piece of legislation. Now, you heard Kagan say that that legislation was a buttress in 1982. There was a congressional amendment to the Voting Rights Act, which changed it because before 1982, to prove a violation of the Voting Rights Act, basically, the Republican legislature or the conservative legislature would have to say, "I hate Black people, so I'm making this law." It had to be that explicit. In 1982, we changed the law so that if the results was racial discrimination, that was enough to be a violation.

You didn't have to prove that they intended to be discriminatory. In 1982, the Reagan White House under then-Attorney General William French brought in a lawyer specifically to construct legal arguments against that 1982 expansion of the Voting Rights Act. That lawyer was John Roberts. Chief Justice John Roberts was against the 1982 expansion of the Voting Rights Act. He has been an enemy of voting rights, specifically, Black people voting rights. He has been an enemy of those rights for his entire career.

What Kagan is doing by referencing 1982, she's going right into Roberts's history before she even gets to the Supreme Court. What she's talking about when she mentions the cases that have come up for the Supreme Court, she's talking about the various ways that John Roberts and his conservative cronies have systemically weakened the Voting Rights Act at every opportunity they've had. In 2013, Shelby County v. Holder, what that did was end pre-clearance.

Basically, former Confederate states had to ask permission before changing their voting rights laws. John Roberts got rid of that declaring racism functionally over in the South, by the way, as he was doing that. On the part of that case--

Brigid Bergen: New York City was covered by that as well.

Elie Mystal: Yes, there were parts in New York City that were also covered by that. All places that have been had a historical racial discriminatory voting laws were covered by the Section 5 of the Voting Rights Act, Roberts got rid of all of that in 2013. It's the hidden reason Trump won in 2016. It wasn't just diners in Ohio really like the mag, it was also-- 2016 was our first election without the full protection of the Voting Rights Act and you saw what happened. In 2021, Brnovich v. Arizona, they weaken Section 2.

Section 2 is the section that says, "Directly, you can't discriminate on the basis of race. If you do that, it's illegal." They weaken that in 2021. Now, with this case Merrill v. Milligan that they heard yesterday, what they're fundamentally trying to do is to make it so that it's almost impossible to prove that racial discrimination happened at all.

Brigid Bergen: Ooh. I want to--

Elie Mystal: Yes, it's bad.

Brigid Bergen: Yes. Let's go back to some of the other questions from one of our newest justice. This is the first term for our newest Justice Ketanji Brown Jackson. She asked some very pointed questions about the 14th Amendment, a reconstruction-era amendment intended to provide equal protection under the law. I want to play a little bit of what she said leading up to one of those questions. Here's Justice Brown Jackson.

[start of audio playback]

Justice Ketanji Brown Jackson: I don't think we can assume that just because race is taken into account that that necessarily creates an equal protection problem because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about. When I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment in a race-conscious way.

[end of audio playback]

Brigid Bergen: Of course, that is just about 30 seconds of what was described by many is a real history lesson from Justice Jackson about the 14th Amendment. Elie, what are the lawyers from Alabama arguing, and what can you tell us about how she used her line of questioning?

Elie Mystal: One of the things that's happened with the modern conservative movement is that they've tried to co-op the 14th Amendment and misread it into this amendment that demands color blindness, that they've reinterpreted the Equal Protection Clause to mean like, "Oh, we can't look at race at all in any situation, that would be bad." That's one of the arguments that Alabama is making in this case is that to make a second majority-minority district, they would have to look at race.

They would have to look at where different people, people from different races actually live, and they're arguing, "That would be bad. That would be a violation of equal protection." They're essentially saying that creating a second majority-minority district, that would keep Alabama in demographic alacrity with its population numbers would actually be racist to white folks.

Now, that argument has been made by white conservatives at the Supreme Court for many years now, but here comes Ketanji Brown Jackson, the first Black woman Justice, and she was not having any of it. What she did in those 30 seconds was the beginning of her schooling, these Alabama lawyers on the true history of the 14th Amendment. As she said, I also say this in my book, Allow Me to Retort: A Black Guy's Guide to the Constitution, just to [unintelligible 00:17:27] It's just a little plug.

She talks about how the Civil Rights Act of 1866 was passed contingent upon the ratification of the 14th Amendment, and that was a very race-conscious Civil Rights Act, specifically trying to bring Black citizens up to the level of equality enjoyed by white men since 1787. The idea that the 14th Amendment was always meant to be colorblind or erase neutral, fails its first contact with reality. If you listen to the people who wrote the 14th amendment, which, and here is the coup de grâce.

If you consider the original intentions of the people who wrote these laws as important, so Ketanji Brown Jackson is actually also flipping the originalist argument and saying like, "Oh, we're going to be originalists now. We're going to go to original intent, let's look at the original intent of the people who wrote the 14th Amendment to understand the race positive way they were thinking of their laws."

It was a brilliant turn and something that has been lacking I think at oral argument for, at least, my lifetime, and so it was a really great, great bit. Unfortunately, and this is true of our society in general, I think when you see various GOP candidates running for Senate and things like that, Republicans don't care about their own hypocrisy. Even when you catch them in their own hypocrisy, even when you play and win the argument on their terms, if you don't come to the outcome that they want, they do not care. They are not bound by logic. They are not bound by their own stated goals. Even though Ketanji Brown Jackson beat them at their own game, that won't affect the outcome of this case.

Brigid Bergen: We're going to come back in just a moment after a short break to get into some of what the conservative arguments were during this case. More with Elie Mystal from The Nation on the future of voting rights coming up. Stay with us.

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It's The Brian Lehrer Show on WNYC. I'm Brigid Bergen from the WNYC and Gothamist newsroom filling in for Brian who's off today. We're joined by Author and Nation justice correspondent, Elie Mystal. Elie, you started to touch on this before we went to the break. I want to take a moment on the questioning from Justice Sotomayor who you wrote a really sweeping profile of this summer for the nation. She pointedly asked why Alabama did not split up any majority-white districts. Their response to that was?

Elie Mystal: Sorry, is that question for me?

Brigid Bergen: That's a question for you.

Elie Mystal: Sorry, I thought you were going to play the sound because you've been playing sound.

Brigid Bergen1: No, I apologize.

Elie Mystal: Sorry. Their response to that was because we didn't want to, it was as simple as that. They talked about their traditional patterns of districting. When they say traditional, that means that they traditionally didn't break up white towns when it came to their maps. They didn't want to this time the whole argument. Here's where you really need, I'm going to try to stay above the legal weeds, but the nuance is important. There are six conservatives and they don't always agree.

Really, what we're looking at here in terms of their arguments is a three, three split. We don't know which side is going to win yet. The more extreme side, the Sam Alito side, shall we say, they're the ones that are arguing that you cannot prove that the districting map was racist unless you can point to a race-neutral map made up by an expert, or most likely an expert using a computer that would independently pop out a second Black district without taking any racial factors into account.

Now, that might sound simple, but it's actually extremely complicated because if you can't tell the computer where Black people live if you can't tell the computer other indices that might indicate where Black people live, because so many factors are in fact tied to race. If you can't tell the computer what housing prices are, what mortgage prices are, what average salary is, if you can't tell the computer anything of that, then anything like that, then it is unlikely that the computer will pop out randomly, East west Black District across Alabama.

One key factor here, and they bring this up in their oral arguments when you heard the Alabama lawyer talking about geography, he was talking about the districts should comport to the extent possible to the rivers in Alabama. Why we care about rivers in 2022. Somebody will have to explain to me, but that it should comport to the rivers. Well, the rivers in Alabama, the ones he's talking about, run north to south.

If you are going to respect districts that are within the north-south boundaries by rivers, you are going to necessarily break up Black people who are oriented on an east-west axis. You can see how even something that sounds like a race-neutral factor, just look at the rivers, actually directly impacts the, the power of the Black vote in a state like Alabama.

That was their Sam Alito-approved key argument that you have to basically make the computer dumb enough that it can't know where Black people live. If that dumb computer doesn't randomly pop out a district with a map with another Black district, well then you can't prove that what Alabama did was a violation of Section 2 of the Voting Rights Act. It is kafkaesque in its attempt to technically preserve the Voting Rights Act, but make it so that nobody can ever sue under it again.

Brigid Bergen: Listeners, we have time for maybe a couple of callers if you have a question about this case or another case before the Supreme Court, this turn for our guest author and nation justice correspondent Elie Mystal. You can call us at 212-433-WNYC. That's 212-433-9692 or you can tweet @Brian Lehrer.

Elie, I think what you did in that explanation defines what we heard Alito describes, quote reasonably configured that would be the computer spitting out this river-bound district that like passes this geographic test for compactness and all those other elements. It sounded like he was also making another argument, which was that the racially polarized voting in Alabama may just come down to different political ideologies. Here is a little clip we're going to play of Justice Alito yesterday.

[start of videoplayback]

Justice Alito: They're not going to win on whether the majority votes as a block, which may be due to ideology and not have anything to do with race. Maybe the Black voters and white voters prefer different candidates now because they have different ideas about what the government should do.

Brigid Bergen: Maybe it's just an ideological difference, is that the thrust the will of the people argument?

Elie Mystal: Yes, man, I don't know what racism Alito was driving at there. He is a weird dude with he's the justice that's most likely watching Fox News every day. I don't know, because I'm not up on what they're saying on that channel. I don't know what racial theory that he is driving at there. What I do know is that, again, I said earlier, the test to see whether or not you've violated Section 2 of the Voting Rights Act in jingles is actually super deep and super complicated and super fact-intensive.

I think what he's trying to do is to poke holes at other factors in the jingles test. Maybe they're not one of the things that they have to be a cohesive, one of the factors in that test is that they have to be a cohesive block of voters that you are discriminating against. He's, I think, trying to cast dispersions on the idea that Black people in Alabama are a single block of voters. Without getting-- Let's not lose the forest for the trees. In 2020, 77% of white voters in Alabama voted for Donald Trump. 89% of Black voters in Alabama voted for Joe Biden.

Why ever we are in this a state of racial disparity when it comes to our voting? I don't have to make a call on that. I can just acknowledge that it is so and that would be enough to satisfy another jingles factor. I mentioned, Bridgit, that there are two kinds of conservative ar camps right now, the Spring Court. The more narrow one is the one that was kind of surface maybe by Roberts a little bit by Kavanaugh perhaps by Barrett, I'm trying to be hopeful here.

That was simply saying that the Alabama second Black district just didn't pass the jingles test because it was not quote and used the word already, Bridgid, "compact." I'm talking about an east-west district that spans the state. There is an argument that conservatives are making that that is simply not legally compact enough to be a reasonable district in Alabama. I think that's a bad argument, but that is a much narrower argument than what Alito is trying to sell.

Brigid Bergen: We got a tweet from a listener, and this gets to what one of my final questions on this case was, our listener tweeted, this is from Hollis Bronstein, is there anything we can do when or if SCOTUS makes "the wrong decision," allowing for further discrimination in this country? Which is also, I think another way of asking, what are the best and worst case scenarios from your perspective in this case?

Elie Mystal: Again, the worst-case scenario is that Alito wins and Section 2 of the Voting Rights Act is functionally dead letter. It's a law that exists, but it's not a law that one can successfully prove. Now the response to all of the Supreme Court's attacks on the Voting Rights Act, because, again, this is, as Elena Kagan said, this isn't the first they've been doing this for a decade now, the response to all of those attacks on the Voting Rights Act is to reauthorize and strengthen the Voting Rights Act.

We have the John Lewis Voting Rights Act, which specifically would restore Section 5 of the Voting Rights Act. We've had other bills talking about strengthening and sharpening the Voting Rights Act so that can actually protect the minority votes and stop voter suppression. We can't get those bills passed through Congress, through the Senate specifically, because there are some senators who also don't like it when Black people vote. I don't know what else to tell you.

As long as we are going to have 50+1 senators who are opposed to the idea of equal voting rights, we're not going to have equal voting rights. I'll just say that people are like, Well, how can we live this way? Remember this, as I said, this country lived perfectly fine according to white folks as an apartheid nation for almost for 150 years.

The idea that this country cannot sustain simply ignoring or suppressing the Black vote is, unfortunately, not true. It says American as apple pie to take away equal protection rights and equal voting rights from non-white citizens in this country. If we want them to not do that, we have to fight doggedly for it and not just fight the white supremacists who want to take those rights away, but also fight the so-called good white people who just don't think that that's very important right now and that they're actually bigger issues like gas prices. When it comes to whether or not people have an equal and fair access to the ballot.

Brigid Bergen: Let me jump in and, invite Diane from Hillside, New Jersey into the conversation. Diane, do you have a question or a comment for our guest?

Diane: Question and comment. In regards to the redistricting, I've seen in my community where they've done redistricting literally weeks before an election in order to tilt the vote in their favor. I think that if we go Back to the census and we eliminate the tracking of race, then they have no other way to track who lives where except by your sexual orientation, and the population.

Also, I think that maybe the push should be for Black people to register as Republicans, and yes, we won't be able to vote in the primaries. Then we also won't be purged from the voters' registration because they won't be able to purge or figure out how to purge so many Black people as a Republican. Those are my comments.

Elie Mystal: I appreciate the gorilla tactics and trying to think our ways out of these problems, but the simplest fix is to have one person, one vote. That's actually like,-- That's super simple and that's basic democracy one-on-one. The fact that we can't get people to fight for that, then we can't get senators on board with that is actually the more troubling thing to me.

In terms of going back to the census, I will just point out that the 2020 census was broken and corrupt from the start and I never agreed with the idea that once Biden gotten to office, that we should have just kept the census that the Trump administration tried to break on purpose. We should have done the census over. There's precedent for that. I don't think that this census is a fair measure of how our districting should be made in the first place. I'm not the president so here we are.

Brigid Bergen: Elie, we're in our last few minutes, but I can't let you go without talking about another major voting rights and elections case to come before the court this term. Can you give us a quick take on Moore v. Harper out of North Carolina, and of course, the infamous independent state legislature theory and the potential implications of that case?

Elie Mystal: Back in 2000, during the Bush v. Gore case when William Rehnquist was casting about trying to find some way to make George Bush president. Even though the state of Florida ordered a recount of that election, he was casting about for some theory. Now, remember how difficult Bush v. Gore is for Republicans because they allegedly believe in states' rights and the states of Florida said we need to have a recount but Republicans didn't want to have a recount because they wanted George W. Bush to be president.

In this battle between their politics and their ideology, of course, they're going to choose their politics because they always do. Rehnquist had to find a reason, and one of his reasons was the so-called independent state legislature theory and that theory is that it is the state legislatures, not the state constitution, and not the state courts that have the final say on all election laws, including which votes can be counted and which votes can be discarded.

It was a cockamamie theory at the time. The only other justice that signed on to Rehnquist's opinion on this section, it was a concurring opinion. The only other justice that signed onto it was Clarence Thomas. Here we are 20 years later, with now Republican state legislatures arguing that they and they alone have the authority to certify electoral results and throw away electoral results that they don't like. That theory is back and supported by various right-wing and white-wing and QAnon law forces and it's coming up against the Supreme Court, this sometime this fall. It could be a devastating blow to democratic self-government

Brigid Bergen: Any indication when we'll hear that case? I know it's not scheduled yet, but any buzz about if it will be sooner rather than later? Pre-midterm, post-midterm?

Elie Mystal: Yes. They haven't docketed it yet, which means that the earliest would be is December. It's definitely coming post-midterms.

Brigid Bergen: All right. Well, we are going to have to leave it there for today with Nation justice correspondent Elie Mystal, author of Allow Me to Retort: A Black Guy's Guide to the Constitution. Thank you so much for joining us today.

Elie Mystal: Thanks for having me, Brigid.

Brigid Bergen: I'm Brigid Bergen from the WNYC and Gothamist newsroom and host of our live election series, The People's Guide to Power on Sundays at noon, filling in for Brian Lehre. Coming up 30 Issues in 30 Days goes to school again. This time we'll be talking about the culture wars in public education and how that's playing out in the New York State Governor's race. Stay with us.

 

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