Earlier this week, the U.S.

Supreme Court voted 6 to 3 that lawmakers went too far, using racial makeup as a factor while creating a congressional district in Louisiana.

Critics of the decision say it got the 1965 Voting Rights Act and opens the door to redistricting that will reduce black representation in Congress.

This was Governor Bashir's reaction yesterday.

I think this is going to push our country backwards.

You know, the Voting Rights Act was fought for by so many, so many civil rights leaders that were out there that that had grown up at a time when they couldn't vote or access to voting just wasn't there.

That did not see representatives or senators that looked like them because areas had been racially gerrymandered to prevent it.

This was such an important protection that make sure that we have a government, you know, of the people and not a government that selects the people that can or cannot vote for them.

Congressman Morgan McGarvey of Kentucky's third congressional district also denounced the court's decision, saying it could lead to a return of Jim Crow era disenfranchisement of black voters.

A University of Kentucky law professor also says the ruling could turbocharge mid-decade redistricting and gerrymandering.

Election law and voting rights expert Joshua Douglas spoke with me earlier today about the rulings impact.

As we continue our coverage of the US Supreme Court.

Professor Douglas, thank you so much for being with us.

Thank you for having me.

Usually we don't connect with you until June, which is kind of the rendition month for the U.S.

Supreme Court.

But things are a little different this time.

So let's talk about this voting rights ruling.

Voting rights advocates and experts are really sounding the alarm on this, and they're calling it a setback.

That, quote, will undermine minority representation, not just in congressional districts.

But if you look at legislatures, county commissions, school boards, city councils, how what do you make of the ruling from yesterday?

It's a really unfortunate decision for the cause of voting rights, for the cause of fair representation.

You know, the Voting Rights Act of 1965 was the crown jewel of the civil rights movement, and the court has slowly been cutting back different provisions in different areas, starting with the Shelby County case from 2013.

And then there was a case in 2021.

And so this is sort of like three strikes.

You're out for a baseball guy on the Voting Rights Act.

It really is a concerning approach to what's supposed to be the law that protects minority voters and really all voters with respect to a fair democracy.

So effectively, what did it do or undo?

And didn't the court already decide this a few years ago?

And is this a reversal of that sort of.

So there's a lot of moving parts here.

Yes.

It's confusing.

Yes.

So this lawsuit involved what's known as section two of the Voting Rights Act.

And section two says by its terms that a state or locality cannot have a voting rule.

And that would include a redistricting map that results in discrimination on the basis of race.

Now, a couple of years ago, in a case out of Alabama, a case called Allen, the court was faced with a challenge to Alabama's map, and Alabama and defense tried to get the court to change the way it interprets section two.

And the court essentially rejected that approach.

Now, three years later, the court has essentially adopted but not even the Alabama approach, what it had suggested, what the state suggested, but an even further weakening of the section two provision by two.

Two things that are really important here.

One essentially ignored that word results.

Recall that I said that section two, by its very terms, says you can't have a voting rule that results in discrimination.

And the court for decades has interpreted that to mean discriminatory effects.

You can't have the effect of discrimination.

Well, just yesterday the court basically rejected or ignored, actually did a find for the word results just to see when the court was even and it barely talked about that word results.

So interesting for Justice Alito, a professed textualist, someone who looks very closely at the text of a provision to really ignore the text here.

The second thing the court did was it said to states and localities that are facing a Voting Rights Act challenge, that if their goal is politics, not race, then they win the lawsuit, that you can simply use the political justification, whether it's we want more Republicans, we want to protect incumbents.

If you just have evidence that it's politics was the goal, then the plaintiffs lose their lawsuit.

So although the court didn't formally overrule and say section two is unconstitutional, it's effectively a dead letter now because it's impossible for a plaintiff to win a case.

And people would think seems like that would be unconstitutional to consider party and Partizan affiliations.

Well, that's the other part of this.

And this is why this is not really a decision just about what the court did in this Louisiana case yesterday, but it actually goes back about a decade and a half.

You have to consider that Shelby County case I mentioned, right.

That was about a different provision, section five of the Voting Rights Act.

But also there's a really important case in 2019 called Rousseau versus Common Cause.

And in that case, the court said, we're going to stay out of police and policing Partizan gerrymandering.

In fact, the court even said in that case there is such a thing as constitutional partizan gerrymandering.

And the court said, you know, we're not going to touch this.

You know, you can go to states.

And there we've seen litigation in state courts.

You can go to the legislatures and try to get them to pass independent redistricting commissions.

One other really interesting point from the difference between that Rousseau case in 2019 and yesterday in 2019, the court said, we're not condoning Partizan gerrymandering.

We're just saying we're not going to get involved in stopping it.

Yesterday's decision, said states you can use Partizan gerrymandering as a defense to a Voting Rights Act claim.

So essentially the court is condoning Partizan gerrymandering now when it claimed it wasn't, it just said we can't touch this issue.

Now it's telling states you can affirmatively use that as the reason for why you passed the law and you win.

So Sherrilyn Ifill, a law professor at Howard University, I know you're very familiar with her, and former president of the NAACP Legal Defense Fund said there were about 1500 black elected officials throughout the country in 1970.

Today, that stands at more than 10,000.

So is there a direct correlation or causation between those growth in numbers and the VRA, as we had had we had used to know it as we historically have known it?

Absolutely.

Because the Voting Rights Act required jurisdictions when drawing maps and also in crafting other voting rules to make sure that the lines were not drawn in a way that would limit the strength of minority voters.

I mean, pretty simple way to think about this.

Imagine a city.

And actually, Justice Kagan, in her dissent in the Louisiana case yesterday, basically used this hypothetical.

Imagine a city where the center part, a circle, is where most of the minorities live, and the outskirts the suburbs are where most of the non minorities or white majority lives.

Well, if you have a sizable number of those minority voters who live in the same area, you've got to draw a district to make sure they have some voting strength.

Now, you could just what we call this crack, and you could split up that central area and disperse them into various different districts, and they would get no voting strength collectively.

And I fear that's what's going to happen in many places around the country now.

So if we thought we were tired of political gerrymandering, that's already going on in states, this could just exacerbate that.

Well, I think it's going to be supercharged because of the combination of that 2019 case where the Supreme Court essentially said Partizan gerrymandering is constitutional and now no backstop on the racial part of it.

And again, I can't overemphasize how monumental it is to tell states, this is your valid defense to a lawsuit.

You can say you're trying to achieve a political goal.

You're trying to achieve incumbent protection, and that's a valid defense.

Now, the state can actively say, we want six Republicans and no Democrats in the legislature, in our congressional delegation, or vice versa.

We want to favor the Democrats.

And that's a valid defense to basically any lawsuit involving redistricting.