Enforcing Callais: Implementing Supreme Court's Gerrymandering

Okay, I call the hearing of the Senate Judiciary Committee, the subcommittee on the Constitution, to order today's topic, enforcing Calais, implementing the Supreme Court's command against racial gerrymandering. This hearing will examine the Supreme Court's recent decision in Louisiana versus Calais, what it requires of states, courts, and the Department of Justice, and how Congress should understand the decision's consequence for redistricting equal protection and the Voting Rights Act. I'll give my opening statement, then the ranking member uh Senator Welsh will give his. We'll then introduce the witnesses, swear them in, and hear their opening statements before proceeding to a five minute round of questionings per senator. Today's hearing begins with a simple proposition. Congress passed the Voting Rights Act to stop racial discrimination in voting. It did not pass the Voting Rights Act to require racial discrimination in redistricting. But for too long, section two was stretched beyond its text, its history, and the constitution itself. What began as a great civil rights statute became a racial sorting machine. States were told that unless they carved citizens into districts by race, They were violating the law. Then, when they did what the courts and activists demanded, they were told they violated the constitution. That was the trap Louisiana faced in Calais. Draw a map without a second majority black district and get sued under section two. Draw the second majority black district and get sued for racial gerrymandering. This is a racial sorting regime, not the rule of law. The Supreme Court finally said enough. Louisiana in Louisiana v. Calais, the court restored the Voting Rights Act to its proper constitutional role. Section two still prohibits racial discrimination in voting. It still protects every citizen's right to participate equally in the political process. But it does not require racial proportionality. It does not require racial quotas. It does not require states to redraw to draw congressional districts as if Americans were permanent members of racial blocs. The old regime did real damage. It produced bad doctrine and worse maps. Districts stretched across whole regions, split communities, ignored geography, and treated voters as racial inventory. Compactness, contigu- contiguity, uh ra- c- county lines and communities of interest were shoved aside to satisfy racial targets imposed by litigants, activists, and judges. And that old regime distorted our political system. The old Section two regime handed Democrats a systemic advantage. It led Democrat lawyers and allied groups launder partisan demands through the language of civil rights. It allowed them to say, this map does not produce a racial outcome we want, therefore it is illegal. That theory converted the Voting Rights Act into a shield against discrimination, into a sword for partisan political power. Deputy White House Chief of Staff, Home and Homeland Security Advisor, Stephen Miller put it this way. "The combination of illegal alien apportionment, flawed censuses, and unconstitutionally racially gerrymandered districts created an artificial forty-plus-houd seat advantage for Democrats. And that racial sorting regime was disastrous for the Constitution's guarantee of equal protection of our laws. As Justice Clarence Thomas explained at his concurrence in Cal A, The old section two regime, quote, led legislatures and courts to systematically divide the country into electoral districts over along racial lines. Blacks were drawn into black districts and given black representatives. Hispanics were drawn into Hispanic districts and given Hispanic representatives and so on, end quote. That old regime based what that old regime was based on the premise that to quote Justice Thomas again, members of a racial group must think alike. and that their interests are so distinct from the rest of the people that the group must be divided into separate electoral districts, allocated a proportion of political power based on race, and provided a separate body of representatives. But as Justice P- Thomas rightly points out, there are few devices that could be better designed to exacerbate racial tensions than that race-based premise that the consciously segregated districting system, it constructed in the name of the Voting Rights Act. Indeed, as Justice Thomas correctly concluded, that old regime of ration racial balkanization to racially designated districts was repugnant to any nation, such as ours, that strives for the idea uh ideal of a colorblind constitution." That is the regime that Calais begins to dismantle. But this hearing is not about applauding the court. The court has done its part. Enforcement has to happen now because unconstitutional maps are still in effect. Look at California. State law created an independent redistricting commission, but Governor Gavin Newsom and California Democrats overrode that process and hired a mapmaker to redraw their congressional districts. That mapmaker publicly declared that the number one thing that he started to think about when drawing the new California congressional map was creating quote unquote Latino majority districts. Where still he tried to rationalize that racial discrimination as essential for ensuring that already racially gerrymandered VRA seats, section two voting rights seats were bolstered and made most effective. That is the whole problem. Race was used as a re- as a districting tool to intentionally discriminate and the Voting Rights Act was used as the excuse. After Calais, that excuse is gone. Or look to Illinois. Governor Pritzker called Calais an abomination, which tells you exactly how much Illinois has riding on the old regime. Illinois even built race into the machinery of redistricting. Its Voting Rights Act hardwires racial sorting into redistricting by requiring mapmakers to create and preserve district based on minority voters' ability to elect candidates, influence elections, or for- or form racial coalitions. When Governor Pritzker signed the maps, he praised plans designed to preserve "clusters of minority voters" with "collective electoral power." That is an explicit gerrymandering and the kind of racial spoil system that our constitution prohibits. California and Illinois are not side issues. They're test cases. California shows how race can be smuggled into a partisan gerrymandering under the label of Voting Rights Act compliance. Illinois shows how race-first redistricting can be embedded directly into state law. Both should be reviewed immediately. These maps do not become constitutional because they're already in use. They do not survive because politicians call them voting rights maps, and they will not disappear on their own. The Department of Justice has an obligation to act. The Civil Rights Division should not sit by while racially gerrymandered maps remain in force, for another election. I'm calling on At- Assistant Attorney General Harmeet Dhillon to move immediately, review maps drawn or defended under the old regime, identify districts built on unconstitutional racial sorting, intervene where appropriate, file statements of interest where appropriate, and support plaintiffs enforcing Cal A in court. Private plaintiffs have a role too. Bring the cases now. Challenge the illegal maps now. Ask the courts to act now. We're heading into an election cycle. Every election held under an unconstitutional map compounds the injury. Every illegal district that remains in place distorts the House of Representatives and denies American districts drawn under the Constitution, rather than racial arithmetic. The left will s- will say this guts the Voting Rights Act. It does not. It saves the Voting Rights Act from becoming what the Constitution forbids, a command to discriminate. The Voting Act, the Voting Rights Act protects citizens from racial discrimination. It does not authorize government to commit racial discrimination in their name. That is the lesson of Calais. And that is why this hearing matters. Racial gerrymandering is illegal. Illegal maps are still in effect. The Department of Justice must enforce the law. Plaintiffs must enforce the law. And Congress must make clear that no state no court, no activist group gets to divide Americans by race and call it democracy. Senator Welch.

Uh, Mister Chairman, thank you very much for calling this hearing, and I believe this may be the most important topic of discussion in this Congress, and certainly my time serving in the United States Senate. It goes to the heart of the right of each and every citizen to select who their leaders will be. And I got involved in public service uh back in the sixties. In nineteen sixty seven I dropped out of college and hitchhiked to Chicago and worked with a community organization that was fighting housing discrimination. And I remember then being so moved by people who were on the receiving end of discrimination in their determination and their generosity of spirit, despite what they had suffered. They'd endured widespread discrimination that was totally legal. And these are folks who just recently had gotten the right to vote. And that struggle for civil rights, which was centered around getting the right to vote for people who legally were denied access to the vote, was recognized by Martin Luther King when he said, " So long as I do not firmly and irrevocably pr- possess the right to vote, I do not possess myself. I cannot make up my mind. It is made up for me." I cannot live as a democratic citizen observing the laws I have helped to enact. I can only submit to the edict of others. The Voting Rights Act did not come out of nowhere. It came out of a long history of legislated discrimination. I do believe, in con- in contrast to you, I do believe that the Louisiana versus Calais turns back the clock on that hard-won progress. And we're already seeing states from Louisiana to South Carolina to Tennessee have called for redistricting ahead of m- uh midterm elections in six months. And millions of voters will be impacted. So I do believe this decision was wrong on the merits. And I believe there's a trail of decisions that have led to what I regard as a very remarkable and troubling moment about the erosion of citizen power, about the erosion of legislative power and about the expansion of executive power. In twenty ten, Citizens United opened the door to unlimited spending, and now literally billionaires spend billions of dollars affecting our elections, really squeezing out access for everyday citizens. Republican and Democrat, by the way. Shelby County versus Holder, it removed the oversight of potentially discriminatory state l- voting restrictions. Uh, And in Rucho versus Common Cause, that was twenty eighteen. The court did not act on partisan gerrymandering, literally making it legal for there to be partisanship as the basis of a n of a new map. And of course in Trump v. United States, the dis court basically put the president above the law. The court has got in one of the last remaining enforceable sections of the Voting Rights Act. And it's gonna leave many communities of color with few enforceable tools to fight unfair maps. Equally concerning is how the legislative branch has allowed that to happen. This is the branch that is supposed to be the most responsib- responsive to everyday citizens in all of our districts. Congress reauthorized the Voting Rights Act on a bipartisan basis, strong Republican and Democratic support, five times. And the Supreme Court reached its recent judgment based on its own assessment that the protections codified by Congress, by legislators who had been duly elected by citizens all across this country, the Supreme Court substituted its judgment about discrimination in its existence for that of the legislature. The effect of this decision, I do believe, will be monumental for many of our fellow citizens in the South. Particularly. In Louisiana, as I mentioned, a third of the population is black. Joe Biden won forty percent of the vote. Yet after Calais, Louisiana has proposed a map that will only have one African-American representative in Congress, out of six House members. South Carolina, very much the same thing. A quarter of the population is African-American. The redistricting would leave South Carolina in all likelihood with literally no black representation in the in a in a congressional uh s uh of out of ten congressional districts. And whether the Supreme Court intended to or not, by blessing partisan gerrymandering on the one hand,

Mm.

while gutting the Voting Rights Act, the Roberts the Roberts course a court has achieved the same outcome as Jim Clo- uh Crowe laws in the South had done Generations before, it's removed African-American representation on a on a massive scale. That is fact. That's not an assertion. That's a fact. Mister Chairman, I believe we are at such a crossroads here, and we are at a race to the bottom. I believe, and I know you believe this too, that those of us who have different points of view should compete for support with the battle of ideas. We have to get the vote of people that we want to support us and send us here to Congress. We should be competing on the basis of i- our ideas. We should not be competing on how clever we can draw the map to suit our own political bias. Mister President, I believe it's time for this Senate to stand up and ban partisan gerrymandering. Number one. And number two, I believe it is time for this Senate to ban mid-decennial redistricting. Both of those things are accelerating the race to the bottom, and it's interfering with each of us from competing with our competitors in each election on the basis of ide- of our ideas. And it's a race to the bottom because as I said, Texas did it and it started with the redistricting. California followed and the justification is they did it, we have to do it. Our democracy depends ultimately on protecting and preserving the right of individual citizens to pick their politicians, not intensifying the control that politicians have about who the voters are that they will permit to be involved in the election. I yield back.

Thank you, Senator. Senator Durbin.

Thank you, Mister Chairman. Um, it's a basic question, isn't it? Is it over? Is discrimination really over in this country? I mean, we're sensitive to the fact of where we've been. We had a civil war, did we not? Over the issue of slavery and states' rights. I thought we resolved that with the union prevailing. And the question today is, what's happened since? I can remember an experience that I had As a college student, this dates me, but I'm gonna tell you anyway. I was at Georgetown University here in Washington and basically several of us said, we're here, there's gonna be a march in Selma, Alabama, let's go down and join them. Well, we were a little bit worried. A year before, three civil rights workers were killed in Mississippi. And these white guys with license plates from the north wondered if it's a smart thing to do to go down there. In the end we decided not to go. I regret it ever since. But I'll tell you what happened in the meantime. I was elected to the House and Senate. And in the Senate, a man by the name of John Lewis used to take us down to Selma, Alabama, to b- walk down Ed- Edmund Pettus Bridge and retrace the steps that he cast on that day. I'll never forget that morning. It was a Sunday morning and I had to leave early to come back to Washington, and it was Ju- John and myself walking down the Edmund Pettus Bridge. And he pointed to the spot where they almost killed him. Fractured his skill, skull almost killed him. What was this Selma March all about? It was all about this. There were fifteen thousand black people living in Selma, Alabama. Do you know how many were registered to vote? Three hundred and thirty-five. Three hundred and thirty-five out of fifteen thousand? What was wrong with that? They couldn't pass the literacy test. They couldn't pass the questions that John Kennedy asked nominees for the federal courts. They couldn't explain what a letter of mark and reprisal was. And therefore they were denied the right to vote. That wasn't just in Selma, it was in the south. And it was over and over again, and many places in the north, discrimination just as bad. And so the Voting Rights Act was passed after the Selma march. It was passed on a bipartisan basis. And we've used it in extreme situations to try to give African-Americans or any others discriminated against, a chance to win election, a chance to be registered to vote. The dec- declaration from this Supreme Court in this case, as well as this position, political position of many of my colleagues is, we don't need it anymore, we don't have discrimination anymore. I don't, I don't believe that's true, I wish it were true, but I don't believe it's true. The basic question we have to ask ourselves is whether or not we are denying to some Americans who are qualified and legally eligible to vote, an opportunity to do so. I think this hearing will get into some aspects of it, but I deeply regret, regret we reached a point where we would have a quote from Stephen Mitchell to explain why we're here today. I know him. I think many people here know him. He does not represent to me a a balanced approach to our constitution and its rights. And so, Mister Chairman, I'm I'm afraid this hearing is not off on a good foot as far as I'm concerned, but I wanna be on the record clearly. Walking across that Edmund Pettus Pettus Bridge with John Lewis, I realized what was stay was at stake back in nineteen sixty five. It's still at stake today. We have to go that extra step to guarantee Americans the right to vote when they're denied that opportunity. To do otherwise is to, I think, deface our constitution. I yield.

Thank you. We'll introduce the witnesses. Uh the first majority witness is Eddie Grime. Um Eddie is a partner at Graves, Garrett and Grime, where he focuses his practice on complex commercial litigation, free speech and election law, internal investigations and whistleblower claims. He has been recognized as a go-to lawyer on constitutional and policy issues, and was named a constitutional election law trailblazer by the National Law Journal in twenty twenty. Mister Grime received his law degree from Harvard Law School in two thousand two and received his bachelor's degree suva cum laude in economics and political science from the University of Missouri at the United States Supreme Court he successfully argued Louisiana v. Kelly on behalf of the private plaintiffs. Will Chamberlain? Serves as senior counsel at the Article Three Project after graduating from Georgetown University Law Center in two thousand fifteen. He joined Quinn, Emanuel and your couhart? Okay, sorry. And Sullivan in Los Angeles as an associate. He later worked as an attorney at the Competitive Enterprise Institute focusing on class action litigation in twenty nineteen. He revived Human Events, the nation's oldest conservative magazine where he served as publisher and editor-in-chief.

Uh thank you, and I want to welcome To- uh, Mister Todd Cox, who is Associate Director of Counsel at the NAACP's Legal Defense Fund, or LDF. And as Associate Director of Counsel, Mister Cox works to execute their strategic uh direction of the organization's policy and external work. He previously worked for five years in philanthropic work, and before that served as LDF's Director of Policy. Uh, during the Obama administration, Mr. Cox was the Director of the Office of Communications and Legislative Affairs at the US Equal Employment Opportunity Commission. Mr. Cox is a proud graduate of Princeton University and the University of Pennsylvania Law School.

It is the tradition of this committee to swear in all the witnesses who testify before, so please stand and raise your right hand. Do you swear, do you swear that the testimony you're about to give is the truth, the whole truth, and nothing but the truth, so help you God? I did, I did. Thank you. Be seated. And we will start uh with you, Mr. Grime.

Uh, ranking member Welch and members of the subcommittee. Thank you for the opportunity to testify before you regarding the enforcement of the US Supreme Court's decision in Louisiana versus Calais. Calais was one of the most significant election law decisions, indeed one of the most significant fourteenth and fifteenth amendment decisions of the past several decades. It should end the drawing of legislative districts based on race. It also ends an unnecessary tension in the law. Understanding the source of that tension is necessary to properly implement Calais because at bottom Calais is a resolution of that tension. The tension was between the mandate of the fourteenth amendment and enforcement of the fifteenth. It arose because majority minority districts were forcibly created, either by states or by courts, every time it appeared that they were even somewhat possible. And courts created them without finding that the reason the district had not been created was because of intentional racial discrimination in drawing districts. Kalei solves this tension by clarifying an obvious misunderstanding in the courts. It clarifies that an implying the Voting Rights Act majority minority districts can't be intentionally created that is created with the intent to make such a district without making the kinds of showings that the fourteenth and fifteenth amendment already require if a state or court intends to rely on section two to create or preserve a remedial majority minority district then they must carefully consider three points in applying the Thornburg versus Jingles precedent. And I won't go through what the what the uh original Thornburg v. Jingles test is. I want to focus on what Kalei clarified. First of all, the majority minority district cannot be drawn with race as a districting criterion. And the district must meet traditional and non-racial redistricting criteria, including any non-racial political goals of the state. Second, racially polarized voting must be shown to stem from racial animus, the desire to vote for or against someone because of their race, and be separated from the mere circumstance where different races tend to vote for different parties because of different political beliefs in a certain area. Third, there must be a showing of factors indicating an objective likelihood of intentional racial discrimination in districting in the area where the remedial district was drawn. Requiring proof of these three factors ensures that the fourteenth and fiftieth amendments operate as a kind of mesh, as a seamless web of protection for voters. It resolves the tension that had developed, but it also is faithful to precedent. There was no Jingles majority, that's the Thornburg v. Jingles case, for the principle that racial intent doesn't matter in polarized voting. And White versus Register, an earlier case that, uh, the Senate cited in its report, um, in nineteen eighty-two with the last amendment of the VRA, was not purely an effects-based test. In my view, the only proper application of Calais is to identify the districts that would fail today under the Supreme Court's clarified factors. Districts that fail this test violate the fourteenth amendment and the fifteenth amendment. In applying these principles to existing districts, it is important to note some important limitations. First, districts are not suspect and subject to challenge merely because they are majority-minority districts. Second, districts that had necessarily had to be drawn to remedy recent intentional discrimination based on race should survive until the underlying racial discrimination dissipates. And finally, it is important to implement Calais as expeditiously as sound election administration allows, given Purcell v. v. Gonzalez and the election deadlines and administrative structure in many states. Federal courts may have a limited role to play in adjoining unconstitutional maps during the current cycle. There are some very notable exceptions. The laboring order is held by state legislatures in many states. Uh, I want to make one final note that's not in my written testimony, but uh my few seconds left I wanna point out uh three judge courts are granted jurisdiction under twenty eight USC twenty two eighty four over a lot of these racial gerrymandering claims we think the senate should um expand that uh and and expressly state that twenty two eighty four jurisdiction also goes along with VRA claims that will stop forum shopping and uh allow uniform enforcement of uh of the fourteenth and fifteenth amendments. Thank you.

Thank you, Mr. Grime. Mr. Cox.

Chair Schmidt, ranking member Welsh, members of the committee,

Mr. Cox.

hi, yes. Chair Schmidt, ranking member Welsh, and members of the committee, good afternoon. My name is Todd Cox and I am Associate Director Counsel for the Legal Defense Fund, or LDF. Since LDF's founding by Thurgood Marshall in nineteen forty, we've worked to expand voting rights for black Americans. The Voting Rights Act has been central to that effort. and we have litigated most of the seminal cases, interpreting its scope. Our attorneys presented oral argument in Allen versus Milliken, in which just three years ago the Supreme Court fairly applied section two, and twice in the Calais case, in which the court claimed to uphold the landmark law while destroying it. The Calais decision has already been destructive for black communities across the country. But before I discuss Calais specifically, I want to put our current moment in historical context. As we mark two hundred and fifty years since the declaration of and after the Supreme Court has once again undercut Congress's strongest action to implement the vision of equality and the reconstruction amendments. This hearing is not truly about a decision, but rather a more fundamental set of questions. Will we retrench and rewind history? Returning to a time when democratic representation and political power were synonymous with white supremacy and racial hierarchy? Or will we push forward and achieve the true uh the truly inclusive, multiracial democracy that our nation can, and must become. What will the next two hundred fifty years look like and what role will everyone in this room play in forging this path? The Reconstruction amendments that followed the Civil War were enacted with an explicit purpose in uh to end racial hierarchy and create a multiracial democracy. After Reconstruction, however, came a backlash known as the Redemption, which uh uh which both p- uh pushed back political and social equality and quickly erased those gains in the South. abetted by infamous Supreme Court decisions such as Plessy versus Ferguson. The resulting Jim Crow era endured throughout the first half of the twentieth century until the Voting Rights Act of nineteen sixty-five finally gave us a multiracial democracy but the backlash came back. The white power structure adapted and shifted from overt barrier uh discriminatory barriers to uh uh systems through uh drawing with district lines that removed the voice of African Americans and prevented them from actually being able to exercise an elect candidates of choice that's known as racial vote dilution. The court was on the wrong side of history again, undercutting the Voting Rights Act's protections against vote dilution in nineteen eighty by requiring voters to prove that unfair maps are crafted with discriminatory intent Congress responded quick- swiftly and forcefully amending the Voting Rights Act of nineteen eighty-two to correct the Supreme Court's overreach and clearly established a results-based test for providing racial discrimination under the Voting Rights Act. Yet over the past decade plus, the Roberts Court has eviscerated the Voting Rights Act in Shelby County versus Holder Brunneridge versus DNC and now Louisiana versus Calais. In Calais, the Supreme Court substituted its views of the Congress's considered judgment, repudiating the eighty-two amendments and making discriminatory maps almost impossible to challenge, so long as the state or locality defends its map on partisan grounds or some other grounds that it uh uh that's that that it deems appropriate. thereby entrenching discrimination against minority voters. Perhaps the most invidious aspect of the decision is the fantasy that post-racial America is uh that concocts to support its desired ends. Every day, black Americans feel the sting of racism in our lives. The ongoing racism profoundly shapes the landscape of opportunity, including access to fair representation and political power. Yet without evidence, the Roberts Court uh wishes this world away and pretends we are a nation that has already achieved our highest ideals. This is present reality, not a relic, and courts have documented it extensively, not decades ago but currently. Calais has unleashed chaos in the twenty-six elections currently underway and already undercut fair representation for black voters. Although news coverage is focused on congressional r- uh representation, I want to make it clear that Calais impacts black representation on school boards, city councils, county commissions, and state legislatures everywhere. The most important victims of Calais' uh uh this court's overreach are non-elected officials. but rather black voters and other voters of color who are denied the opportunity to elect candidates of choice. One thing the decision did not do was shift the racial gerrymandering law. Calais does not call into question the constitutionality of majority, minority districts or other districts that give voters of color an opportunity to elect candidates of choice. And I would caution those who seek to over read Calais to attempt to roll back progress by targeting majority minority districts that themselves, um, uh, provide that opportunity because that might be probative of discriminatory intent. Though this moment is dire, there's a path forward. Black Americans have always pushed the nation towards its highest ideals. And just three years, three days ago, I was in uh Alabama witnessing thousands of folks gather to recreate the bloody Sunday march and light a path to a brighter future. Since twenty thirteen, this court has dismantled key parts of the Voting Rights Act, and that can't stand. Congress must act to respond to the court's overreach and ensure that this body fulfills its constitutional responsibility to protect the right to vote. States must step up to protect their own voters from discrimination and people must fight back with mass mobilizations as we saw already and at the ballot box. The question that I posed before really needs to be answered by each person in this room. Those with most power, such as members of Congress, have the most responsibility. Thank you very much. I'm happy to answer questions.

Thank you. Mister Chamberlain.

Thank you. Uh, Chairman Schmidt, Raking Member Welch, and members of the subcommittee, thank you for the opportunity to testify today. on enforcing the Supreme Court's decision in Louisiana v. Calais. Louisiana v. Calais decided last month held that Louisiana's congressional map, which added a second majority black district, was an unconstitutional racial gerrymander, the holding rests on clear constitutional principles. As Justice Alito explained in his opinion for the court, Louisiana's SP eight, which created the congressional map in question, quote, triggered strict scrutiny because the state's underlying goal was racial. Given that strict scrutiny applied, Louisiana had to demonstrate that its use of race was narrowly tailored to further a compelling governmental interest. and no such interest existed. Properly construed, section two itself targets intentional racial discrimination. It does not license racial bean counting to create minor majority minority districts. This command is not confined to Louisiana or to any single party or region. It binds every state legislature, redistricting commission, and court in the country. Any map in which race was intentionally used as a factor is presumptively unconstitutional. California and Illinois are cases in point. In Illinois, the Democratic-controlled General Assembly produced a congressional map recognized as one of the most bizarre gerrymanders in the nation. If this gerrymander were purely partisan, there would be no federal constitutional question. But, as explained in the recently filed lawsuit Ives v. Pritzker, Illinois law requires long-draw line drawers to use racial demographic data to preserve clusters of minority voters, under the guise of voting rights, v- voting rights act compliance. Those districts would thus fail strict scrutiny under Cal A. California's new bizarre gerrymander also fails the Cal A test. Its new map, adopted after the passage of Proposition fifty, is another bizarre partisan gerrymander. Perhaps its most bizarre district is the new second congressional district, which manages to include Sausalito just across the Golden Gate Bridge from San Francisco with Modoc County in the far northeastern corner of the state. Now, if anyone truly believes that it's reasonable for the residents of Modoc County to be in the same congressional district as the residents of Sausalito, I might just try and sell you the Golden Gate Bridge. But as we discussed, partisan gerrymanders are constitutional, even if But California's line-drawer, too, impermissibly used racial factors to draw their lines. The map drafter, a man named Paul Mitchell, admitted as much publicly on multiple occasions. In a presentation he stated that, quote, the number one thing he first started thinking about, end quote, when drawing the map was, quote, drawing a replacement Latino majority-minority district in the middle of Los Angeles, end quote. On X, Mitchell boasted that his new map would, quote, increase Latino voting power, increase Asian-American voting power, and add one more Latino-influenced district. These motivations are impermissible under our constitution, and Calais ensures that map-drawers can no longer use the Voting Rights Act as an excuse for this odious racial bean-counting. States whose maps rest on these foundations have a clear duty. They should acknowledge that the affected districts are unconstitutional and redraw them using race-neutral criteria, compactness, contiguity, respect for political subdivisions, or any other legitimate non-racial factors. The fact that we are well into the twenty twenty-six election cycle provides no

Okay, thank you very much. I'll start with um Mr. Grime. Um, you heard accusations from some

Mm.

uh, that the Calais decision guts, uh, the Voting Rights Act. Is that accurate in your mind and could you explain why you think it one way or another?

Absolutely.

Absolutely not, Mr. Chairman. Um, uh, Calais brings the Voting Rights Act back to the plain text of the law that was actually passed at the amendment in nineteen eighty-two. Um, the, to read the Voting Rights Act any other way is to either uh, make it meaningless or make it unconstitutional and make it, uh, fail to be congruent proportional to the fifteenth amendment. I mean, we the the the law itself says that we can't have proportional representation. That can't be a goal. Uh, it's not a constellation constitutionally permissible goal. That was part of the compromise. And so all that's going to happen is we're going to be able to still meet the the goals of uh Congress when that was passed, um instead of strict uh, you know, you might say clear and convincing proof of intent, uh the standard that really uh the that law brought from earlier case law, uh which is I would say an objectively um, you know, the objective evidence of intent, even though it um it may be circumstantial, that that can that can still establish a section two claim. And if that conduct is still happening, you can still bring a section two claim. I mean, you could bring a racial gerrymandering claim. You could bring a vote dilution claim, uh, under the fourteenth amendment directly or under the fifteenth amendment without using section two. So there are all kinds of ways, uh, to combat discrimination. What we're losing is sort of the rough proportionality that section two had gone into and that's not losing anything in fact what we're losing is the very thing that caused racial gerrymandering to occur.

Thanks. Mister Chamberlain, I wanna ask you, I wanna talk about California just for a minute, the California map, because you you referenced the quote I had in my opening statement. Um you know, there's evidence uh, I mean quotes, I mean this is that that that they've the map makers have talked openly about specifically creating a district based on race. Um do you feel like now that's a vulnerable map?

Uh absolutely, I mean that I mean obviously if you use race intentionally And you, I mean, you have statements like that, that that triggers strict scrutiny. And that's exactly the kind of thing that our constitution says is odious. We should we should not be just bean counting and putting people into districts based on what race they are.

Um, and now to move now to um to Illinois, I, because I, I, you know, I've written this letter to uh to Rameet, Dylan. I think these are the two most obvious examples, California and Illinois. There are, there are more.

Mm-hmm.

There are more, and um, I hope that they're very aggressive about this. If we're serious about getting rid of um, you know, creating, making race the reason why you're creating a particular map, which is inherently discriminatory, um, then DOJ has a very important role here. Um, in Illinois, uh, the law requires consideration, uh, in the statute, requires consideration of crossover district, coalition districts, and influence district based on race and language minority status. Uh, does that kind of law tell mapmakers uh, to think about racial categories from the beginning?

Yeah, that's exactly what it does. And again, uh, under Cal A, that's, that's certainly not gonna be constitutional. And it's also, when people say that the Voting Rights Act has been destroyed, not so. The Voting Rights Act is still there. What this means is that this is probably a violation of the Voting Rights Act, because the Voting Rights Act is now aligned with our constitution.

Do you know, and I don't know this off-hand, do you know how many other states have infused this sort of language in their statute that sort of bakes the cake already right about what the map-making is

Uh, not off the top of my head, no, I don't know that.

Okay. Um, and I go back to to uh, Mister Grime, you you sorta you sorta touched on this and I think it's a very important um point um, to make that the law still prohibits discrimination, right? I- intentional discrimination based on rates. You can't inhibit somebody's ability to vote because of their race. What the what the Cal A decision stands for is that you can't have this racial sorting as the criteria for creating districts.

That that's absolutely right. And uh, not only do we have the the straight up constitutional prohibition, but the Voting Rights Act still does some work because uh, it gives you a way to circumstantially uh prove intentional discrimination. A- and so um, there's there's many tools out there to combat discrimination.

Um, Senator Welch.

Uh, thank you very much, and I apologize for having to go and leave shortly. uh in order to cast my vote and uh the chairman's gonna have to do that now but uh I really appreciate all of the witnesses being here and we all do. Uh first of all um Mister Cox I do wanna ask you about how the court's decision has affected the electoral process in Louisiana.

Well it's thrusted into chaos. Um we and and and the Calais case sought to uh delay implementation of the Supreme Court's order because the election already begun. Uh the state wanted to go ahead and run uh the election under the uh the plan that was in existence, and uh it was it was it's chaos has ensued.

Yeah, I just wanted to interrupt to elaborate on your point,

Um sure.

what I understood is the election was supposed to the they were supposed to happen on May sixteen, and uh there had already been mailed ballots to military

That's right.

and overseas voters and as many as a hundred thousand citizens.

That's right. So, I mean, I don't know. And we, you know, a- as - as good lawyers do, as the voting rights lawyers do, said, " Hey, we need to slow this down. We need to reconsider and h- uh and have a conversation at the district court level to consider what's going on with the Supreme Court decision." Uh, but the state wanted to run the election and continue the election anyway, and it's caused a lot of confusion. Uh, we have folks on the ground monitoring the election. We have Black voters on the rise, um, uh, w- colleagues who are a group of lawyers and policy folks and organizers who are educating voters about their right to vote. educating voters about opportunities to uh make sure they uh are registered to vote and can turn out and uh they're experiencing long lines they're experiencing a lot of confusion regarding offices and the like so it's thrust uh Louisiana into chaos but it's also thrust I think a lot of uh redistricting a lot of states in in in into chaos because now there's a rush to uh redistrict in many of the states that are at issue here in the deep south.

Thank you. Thank you. Mister Grime, is there something that is just a little fishy about the legislature coming up with a map where forty percent of the people who in that state may be African American end up where districts are designed that have the effect of meaning there's no black representative.

Well, a couple of answers. First, the uh the black voting age population's not as is much less than forty percent. It looks to be about thirty one percent. But the other issue is

Oh, thirty one percent and zero. I'm just I'm just asking on a smell test, okay?

But, sure. No, I I think you have to know where the voters live. Um, I mean

Well, the the people writing the maps know exactly where they live. That's the whole point.

Well, the the the point though is that we're not we're not assigning seats based on race. We're actually drawing geographic districts.

All right, let me interrupt for a second. But we are assigning seats. You can dispute the seat if you want. by the writers of the legislation, and by the way, this is true in Louisiana, it's true in California, on the judgment of those legislators, the majority, about where they can get the most votes. Isn't that right?

Well, I mean, the that's right, but that that's our point, is that these are political considerations,

Is that right? So what you're saying is you're full on board with partisan gerrymandering.

which Well, the the Supreme Court has made clear that that's not a constitutional claim.

I'm asking you,

Right.

I am asking you,

Right.

You are on board. You think it is okay in this country that partisanship be the exclusive judgment upon which a majority in a legislature will design the districts in that state.

What what I'm okay with is the Constitution actually gives this power to state legislatures.

Okay, and I'm not I'm not I'm not asking you the lawyer question here.

That's the Constitution.

I'm asking you the citizen question. You know, a democracy There's a tug of war in what, and would you dispute my point that when you have the majority in a legislature, and pick your legislature, a Democrat of California, a Republican Louisiana, and those legislators on whatever it is, the rules committee, go in the back room, they go over the maps, they go over the computer uh projections, and they have one goal, and that is to make certain that the maximum number of R's or D's get elected. You're okay with that?

Well, as a s- as a citizen and as a lawyer, I understand that's actually the system that we have. That's actually what the constitution says,

All right, eh and

and if we wanna change that

all right, and what's happened, the what's happened with that citizen that is we have a race to the bottom now. And you heard me suggest to m- my chairman, who I think is a tremendous uh colleague, that we oughta be having a battle over ideas as opposed to picking the voters that we want to vote for us. You have a problem with that?

No, my my problem is the Constitution already assigns that.

Do you have a problem with that? Uh look,

My

I'm asking, I am asking as a citizen. We are now in this total race to the bottom, where legislators are doing re- we're gonna be doing redistricting every two years. We're gonna be doing that. In every state, if there's a change in the legislature, they're gonna be doing the same thing. Isn't it time to get rid of partisan redistricting and isn't it ti- gerrymandering, and isn't it time to stop uh the every two year cycle of redistricting?