According to this article in The New York Times, in the hours after the FBI seized documents from Mar-a-Lago, social media saw a marked increase in posts that mentioned “civil war,” a trend that has only escalated in recent weeks. It remains to be seen what this extreme rhetoric will mean for the November midterms and for the longterm health of our democracy.
The New York Times has the story here.
Important New Yorker article on the difficulties that election administrators face going into the midterm elections. Election administration has been a challenge because of newly enacted voting restrictions enacted by Republican-led legislatures and, importantly, the enforcement of some of those restrictions by private groups primarily made up of election deniers. For example, these groups used these new restrictions to challenge significant numbers of voters during the primaries, and these challenges will likely escalate in the midterm elections this fall. While these challenges usually fail, they may nonetheless intimidate some minority voters from voting.
Election administrators have already faced an unprecedented number of death threats and intimidation tactics in the wake of the 2020 election. This article details the many other ways in which their lives have been complicated since that pivotal election.
The argument traversed a wide range of detail and touched on many important issues. The Court did not seem interested in the most sweeping challenges to the VRA that Alabama’s brief put forward. At the end of the day, I believe the critical legal issues, based on the oral argument, can be distilled into three key points:
- The core of the VRA plaintiffs case, in a sentence, is that when voting is racially polarized, Sec. 2 imposes an affirmative obligation to create reasonably compact (or reasonably configured) districts, if possible, that provide a reasonable ability to elect for minority voters.
- One version of Alabama’s response, which Justices Alito and Kavanaugh pursued most fully, accepts this principle. The argument then becomes whether the second VRA district in this case is indeed reasonably configured. If the Court were to overturn the lower court decision, this would be the narrowest grounds on which it now appears the Court might do so. The issues would be largely factual ones about whether a proposed VRA district is reasonably configured. The way the Court applies this principle might well in practice cut back on how Sec. 2 has been applied in the lower courts; the devil would be in the details of what “reasonably compact” or “reasonably configured” would mean in application. But a decision on this basis would mean that the Court accepted the principle in point 1.
- A second version of AL’s response, which several Justices pursued (but I think not J. Kavanaugh, though I have to read the transcript), instead takes issue with the principle in point 1. Here the argument is that there is no affirmative obligation to create VRA districts — even if voting is racially polarized — if a large number of computer simulated maps using traditional districting principles would not generate another VRA district. In other words, even when racially polarized voting exists, there is no affirmative obligation to create a reasonably configured VRA district. The fact that such a district could be created is not enough: the obligation to do so would exist only if randomly drawn race-blind plans applying the state’s traditional districting principles would produce that result. Were the Court to adopt this position, there are many further questions that would have to be resolved regarding how to apply it. But a decision on this basis would constitute a much bigger change, both in how Section 2 is understood and in practical application.
Based on the argument, I think the case comes down to these 3 points and how the Court resolves them. If a majority of the Court does decide to overturn the lower-court decision, much will then turn on whether it does so by taking path 2 or 3.
I listened to this morning’s argument in Merrill v. Milligan, and live-tweeted it here. My sense is that Alabama is not likely to get the Court to adopt its radical approach to rewrite Section 2 of the Voting Rights Act as a race neutral statute, but it might get something almost as good: a reworking of the existing Gingles framework to make it much harder for minority plaintiffs to get full representation in Congressional and other legislative districts.
There did not appear to be any appetite on the Court for Alabama’s constellation of radical arguments, including one that would require proof of racially discriminatory intent to require the creation of a minority opportunity district. That would look radical: the Court would be overturning decades of precedent, beginning with the Court’s 1986 decision in Gingles, which sets up a three-part threshold test for VRA redistricting claims, followed by a look at the totality of the circumstances.
Even Justice Alito, one of the most hostile justices to the VRA was not on board with that. He instead, however, aggressively and persistently pushed a reworking of the first of the Gingles factors in a way that would make it much harder for minority plaintiffs to prevail. It would essentially bring race neutrality in through the back door into that factor.
Justice Ketanji Brown Jackson, new to the Court, aggressively pushed back against Alito, and made very strong points about how Alito’s suggested approach is neither required by the Constitution nor in line with the text, history and precedent regarding Section 2 of the Voting Rights Act. It’s clear that Justices Kagan and Sotomayor are there with her.
Justices Barrett and Kavanaugh, and to some extent the Chief Justice, asked more of clarifying questions, and suggested they had an open mind on the question. (Recall that the Chief Justice, dissenting when a Court majority made up of the other conservative Justices put Alabama’s ruling on hold pending the hearing in this case, said that plaintiffs should win under existing law.) If one just listened to the oral argument, one might think that these Justices are up for grabs in this case. But we know from the oral argument in last year’s Brnovich case that they sounded openminded there too, but fell into line behind Justice Alito’s terrible opinion in that case. That could well happen again here. Indeed, I think that’s the most likely scenario. But it’s not certain.
Justice Thomas said little and I believe Justice Gorsuch did not ask a question (though I missed bits and pieces of argument and may have missed it). But they’ve been on record as saying that the VRA doesn’t even apply to redistricting. They are not going to be votes to help plaintiffs here.
We may not get a decision for a while. But if Justice Alito gets his way, there will be many fewer congressional districts, and state and local legislative districts, where voters of color get to elect representatives of their choice and have meaningful representation in legislative bodies.
Very excited about this event:
The Program on Democracy and the Internet (PDI) at Stanford University and UCLA Law’s Safeguarding Democracy Project will host a half-day streamed conference, “Should Donald Trump Be Returned to Social Media?” Leading scholars in the areas of cyber law, election law, constitutional law, and human rights law will discuss whether former President Donald J. Trump should be restored to Twitter, Facebook, and YouTube if he declares that he is a candidate for the Presidency. Although at this moment that question is a private matter for the companies, they will be making the decision in the shadow of recent legislation in Florida and Texas (currently subject to First Amendment litigation) that would require certain social media companies to carry politicians’ speech under some circumstances. The conference will use this case study to foster a larger dialogue about the effects of deplatforming and replatforming political figures and discuss the key considerations involved in these decisions implicating free speech and safeguarding democracy.
You may download papers for the conference at this link.
- Chinmayi Arun, Yale Law School
- Guy Charles, Harvard Law School
- Renee DiResta, Stanford Internet Observatory
- evelyn douek, Stanford Law School
- Katie Fallow, Knight First Amendment Institute
- Mary Ann Franks, University of Miami Law School
- Niall Ferguson, Stanford, Hoover Institution
- Katie Harbath, Anchor Change
- Rick Hasen, UCLA School of Law
- David Kaye, UCI School of Law
- Genevieve Lakier, University of Chicago Law School
- Nathaniel Persily, Stanford Law School
- Eugene Volokh, UCLA School of Law
- Jonathan Zittrain, Harvard Law School