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September 19, 2022
Strict Scrutiny
Unprincipled and Inconsistent Voting Rights Shenanigans

In This Episode

Leah talks with Wilfred Codrington III about his article, “Purcell in Pandemic,” which appeared in the NYU Law Review. The Purcell Principle comes from a 2006 Supreme Court case about what makes an appropriate timeline for changing election laws. The principle wasn’t clear to begin with, and has only gotten more confusing in litigation surrounding the 2020 election. Will we see it continue to play out in this year’s midterms?

 

TRANSCRIPT

 

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when I argued when a man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your host for today. I’m Leah Litman, and I am delighted to be joined by now three time guest, Wilfred Codrington III, an assistant professor of law at Brooklyn Law School. Welcome back for a third time to the show, Wilfred.

 

Wilfred Codrington III Thank you. You know, I’m the third, so I feel like it’s fitting that I should be up here on the third time.

 

Leah Litman Exactly, this is. It all works out. We always enjoy having you, our listeners enjoy it. So I’m thrilled to get to do this again. So, you know, because it’s the summer, we have the opportunity to do some deeper dives on issues that come up on the courts docket with some regularity. But we don’t necessarily always have the time to go in depth on them when they do. So in 2020, the court was extremely active in many election related cases, cases challenging prerequisites to voting, among other things. And with the midterms coming up this fall, we wanted to do an in-depth look at some of the rules and laws and maybe vibes that the court applies to these election related matters. Many of these matters reached the court on the so-called shadow docket or emergency docket, either not cases with arguments or that are scheduled far in advance. But they’re emergency and time sensitive because of the proximity to an election. And usually the emergency is that a lower court has made it easier to vote anyways. So, sorry. Had to put that one in there.

 

Wilfred Codrington III It’s true.

 

Leah Litman So the court heard several of these matters in the lead up to the 2020 election. Cases arising out of Wisconsin concerning the April primary and then the October general election. Both times the Supreme Court stayed lower. Court injunctions that made it easier to count absentee ballots. And then in Pennsylvania, the court ended up dividing four four before Justice Barrett was confirmed over whether to stay a Pennsylvania Supreme Court decision. Likewise, making it easier to count absentee ballots that were submitted during the pandemic election after 2020. This trend has continued. We’ve talked about the Wisconsin redistricting case in which the Supreme Court overruled the Wisconsin Supreme Court’s selection of appropriate redistricting maps, as well as redistricting cases out of Alabama Merrill versus Milligan, in which the court did away with an injunction against Alabama’s redistricting maps. Okay, so the occasion for this episode is Wilfred’s wonderful article in the NYU Law Review. I feel compelled to give a shout out to NYU having a campus just for Melissa sake.

 

Wilfred Codrington III It’s a lovely town, as.

 

Leah Litman The article is called Purcell in the Pandemic, and it focuses on the court’s use of the so-called Purcell Principle and these and other election cases. And both of you know, the cases I just mentioned out of Wisconsin and Alabama also relate to Purcell. So maybe let’s just start with the basics. What is the Purcell principle?

 

Wilfred Codrington III Yeah. So Purcell is this idea that’s now becoming too big for its bridges. But the Purcell principle was coined by Professor Hazen and it comes from a case from 2006 from Arizona, and it’s regarding a voter ID law. And basically what happened was a strict voter I.D. law was put in place and it was challenged and challenged. The district court let it stay in effect so it was not going to enjoin the law. That was also appealed to the Ninth Circuit. The Ninth Circuit said, well, we’re going to stay it in the lead up to the election. So all of this is happening in the weeks before the election. We get to the Supreme Court and the Supreme Court notes that neither of the lower courts gave reasoning for why they were doing whatever they were doing in the instance of the district court, letting the laws in effect, in the instance of the appeals court staying the law and the Supreme Court basically vacated or stayed the the appeals court’s decision and let the law remain in effect for the election. So we have a problem here because none of these courts are really providing rationale for what they’re doing. But the Supreme Court sees a bigger problem with this, which is that functionally what’s happening is the Ninth Circuit is changing the law on the eve of an election. And it basically says we don’t want to do that in the lead up to an election because that will confuse voters. That sounds reasonable enough just to start. So that sort of set out what became the Purcell principle on the eve of election. Courts should be cautious about whether they change or do something that’s going to change an election rule because you don’t want to confuse voters.

 

Leah Litman So aside from this minimizing the risk of voter confusion, were there other rationales for what became the Purcell principle? The idea that courts should end to change the rules of an election in the immediate lead up period to an election?

 

Wilfred Codrington III Yeah. I mean, it seems to me that I mean, the biggest principle was this idea of confusion, right? Like, you just don’t want the voters confused. That has been extended in later cases. You also don’t want election workers confused or anybody else confused. So this idea confuses the big one. Also, as I noted, none of the lower courts gave reasoning for the decision. And the court also said, look, you have to give reasoning, but we are courts. Right? We just as you guys noted, we’re not supposed to be ruling based on vibes. We’re supposed to be ruling based on law and providing rationale.

 

Leah Litman So does that mean could I. Purcell all of the Supreme Court’s shadow docket orders and be like, you didn’t give reasons. You said you have to give reasons.

 

Wilfred Codrington III One would think. But I guess we’ll get into cases where the court was also saying we don’t care about that either. Actually, that’s most of the cases that they do these days. And then finally, the court says you should also show deference for the lower court, the courts below you. Right. And so basically, we’re dealing with equitable principles like injunctions and stays. And these are things that are discretionary. And so the court says if these are discretionary and the lower court has actually ruled on them, then the court hearing, the appeal should give some deference and tie to that is showing your rationale to show that you have given deference. So these are the big basic things confusion. Avoid that, show your reasoning and then provide deference to the lower court before you got it.

 

Leah Litman So then let’s talk about what Purcell kind of became, at least during the 2020 election cycle, which is the focus of your article. You know, the cases where the Supreme Court invoked it, as well as the ones where it did not. One of the first cases that you discuss is RNC versus DNC. So this was a case arising out of Wisconsin and it involved the deadline for the state to receive absentee ballots in order to count them. And part of what is interesting about this case is the circumstances that gave rise to the constitutional challenge in this case, namely that the state would have to extend its deadline for receiving absentee ballots where circumstances that were developing, it’s not like they existed several months before, you know, this was happening during the initial phases of the pandemic. Most places didn’t shut down before March. And this was April. It concerned an April primary and institutions were only then responding to, you know, what was then a novel coronavirus pandemic. And in light of those changed circumstances, you know, the Postal Service was having difficulty ensuring that everyone who requested an absentee ballot received it in time and that everyone who returned it in time, it would land, you know, at the desk of the state in time. So that’s why the lower courts had enjoined the absentee ballot receipt deadline and how the state needs to wait a few more days before saying we’re not going to count the ballots that have come in. And the Supreme Court said, no, you know, actually the state gets to keep at its deadline. So, like, what did you observe in the Supreme Court’s deploying Purcell to that case?

 

Wilfred Codrington III And just to provide a little bit more context to it’s easy to forget about it. But we didn’t have vaccines that. Right. We’re in an era at the time where nobody knows what’s really going on with COVID. Places are issuing state governments are issuing stay at home orders like Wisconsin. So people are very confused. Also, just to put it in context, for Wisconsin in particular, they have this kind of off again on again quality to their elections. So the legislator was arguing with the governor. The governor was a Democrat, the legislatures Republican controlled. And they were deciding whether or not they were going to even hold the primary and whether it’s going to be all mail or whether it’s going to be delayed like some other states had done. So that’s what’s going on. It’s just it’s already confusing. So for a principle that is supposed to avoid confusion. It’s coming into this confusing state. So you have all this going on and you have this district court which basically rules after all of this, hey, we’re going to extend this deadline for the receipt of ballots. And literally the night before that election, the Supreme Court says, oh, no, you’re not. So if we’re talking about a principle that’s supposed to avoid confusion on the eve of an election, you have the Supreme Court weigh in the day before the election in this already confusing instance to also change the rules. And the Supreme Court just did not care. They basically said, look, we trust the legislators. Lawmakers around the country have been trying to make accommodations for voting in this election. This is really like a couple weeks into what we know to be the pandemic. So to kind of put trust in lawmakers in that regard that they know what’s going on. One, I mean, maybe you can get away with that. But add to the fact that there is this partizan infighting here and certain people are trying to advantage themselves in the elections by not changing the rules, then we have a real problem. And so the Supreme Court again weighs in the night before, says we are going to stay the injunction from the district court. Again, this is the district court. They know the facts and circumstances, their closest to the case. And so this is just really problematic.

 

Leah Litman Yes. So this was the election that people might have seen some of what to my mind, were just extremely troubling photographs of the lines that people were willing to stand in. Again, this is a month into the pandemic. No one knew how this disease exactly was transmitted beside it being like generally airborne. There were people waiting both indoors and outside who were forced to vote in person in order to get their votes counted to comply with this decision. I also love the point you made about how this allows people to make an advantage for themselves by keeping the rules in place, even in new circumstances. Because part of what the court’s decisions in this area reveal are, you know, a hesitance to modify in their eyes, a state’s rules. But the state’s rules look very different in a pre-pandemic world. Again, you know, in February 2020 than they do in a post-pandemic world, again, at least in the immediate beginning of the pandemic, without vaccines, when we didn’t really know how this virus was transmitted and saying, well, we’re just being neutral, the state gets to keep in place rules that operate wildly differently in one universe rather than the second, arguably doesn’t account for how decision makers might understand. The rule operates quite differently in those two circumstances.

 

Wilfred Codrington III That’s the point of these district court rulings in the first instance, not just in RNC versus DNC, but in the whole succession of cases occurring during the pandemic primaries in the presidential race. These were very long opinions that looked into details. And then they looked at this. Look, under normal circumstances, this might not impair the right to vote. But we are in this situation where voters are really choosing between their health and or of life and their democracy. Right. And so what we’re going to do is try to accommodate both by making it easy to participate in these situations of social distance so we can stay at home and mail these ballots. And so, you know, the decision of Louis DeJoy deciding to hand deliver the mail is not going to impact the rest of the elections. Right. It really seemed like that was what was going on at the time. And so that’s really problematic. So there is this analysis that courts go through, usually the Andersen verdict test to decide whether the right to vote is being impaired. The court’s basically here saying the lower courts are saying, you know, it is being impaired, not necessarily because of what you guys are doing, but because of the environment we are in. We are in a hostile public health environment.

 

Leah Litman So RNC versus DNC is a case that arose because the, you know, again, then novel coronavirus pandemic really changed the circumstances in which these rules were operating and in which people were voting, kind of in the immediate lead up to the election. But the Purcell principle also made, I think, a somewhat stranger appearance or non appearance in the Supreme Court’s decision in Razor versus DeSantis, which concerned the Florida legislature adopting a system that required individuals to pay any outstanding fines or fees in order. Order to regain their right to vote after Florida had passed by constitutional amendment, a provision re enfranchising those persons who had prior convictions. And Florida admitted at the time that under its system there wasn’t a way for it to verify whether an individual had actually satisfied their debt or whether any remained outstanding. And therefore there wasn’t a way to tell them whether they could lawfully vote under the system. So what kind of played out in that litigation leading up to the 2020 election?

 

Wilfred Codrington III In a word, shenanigans. And I hate to like rehash some of the facts, but note that Amendment four, which restored the right of ex felons to vote that passed the state overwhelming. This was went before the people and it was nearly two thirds of Floridians that voted for this. So this is to restore the right to vote. The legislator in the interim changes the the meaning of that amendment to mean that you can’t vote unless all your fines are fees are paid. Right. So in the instance when this is occurring, the district court there basically enjoined that that law, that sort of reading of the law, and it was enjoined for 11 months while it kind of held this hearing. Very long hearing issued a very long opinion, 125 pages, I believe, after after nearly a more than week long trial, and basically said, look, this is violating the Constitution all over the place. You’re violating the right to vote the 14th Amendment, equal protection clause. You’re violating even the 24th Amendment. That’s the poll tax. Yeah. That is that is some stuff, right? There’s no other way to think about what the what the legislators are doing. And so basically, you have this preliminary injunction in place, which the 11th Circuit affirms, and then we get to the point where the trial is over in the court. The district court says we’re going to make this injunction permanent. So you can’t enforce this poll tax. The 11th Circuit says, no, not so fast. You can’t do that. But that’s all they say. They don’t provide reasoning for why they are no longer going along with the injunction that they had cited. For the first instance, there had been some appointees to the 11th Circuit at the time, so maybe that changed how they thought about this. But so you have this new appeals court decision, no rationale. And it is changing the status quo. 19 days before the end of registration for this election, the Supreme Court affirms what the 11th Circuit did, and that was problematic for so many reasons. One, because it’s going back again on this idea that we shouldn’t have confusion. Well, what is more confusing than to tell people who were under the impression for the last year that they could register the vote to tell them, well, you you can’t unless you paid all your fines and fees. And by the way, the state can’t tell you if you paid all your fines and fees because our record keeping is shit.

 

Leah Litman It’s like Schrodinger’s re enfranchisement, right? You are simultaneously both re enfranchised while also being at the same time disenfranchized. And no one can tell you what state you are in.

 

Wilfred Codrington III You cannot make this shit up. Add to that that if you do register wrongfully, right, you think you have the right to do so. You can be criminally prosecuted under federal law. So now we’re in a really Kafkaesque situation. So that’s the confusion part of this. As I noted, we are days away from the close of the registration deadline, so we’re already on the eve of the election. The 11th Circuit changes the law and then the Supreme Court goes along with that. And then the whole showing your work and deference to the lower court, well, that’s just completely out of the window. There is no rationale for this ruling and there is no way to tell whether they’re giving the district court any deference that is due to them. And it’s clear that they’re not right. So it is just complete hypocrisy and it’s really dealing with the lives of these reentering people who now have their should have their right to vote restored.

 

Leah Litman So that’s the second example that is kind of in this trilogy of cases that you discuss in the article. And there’s a third one which arises out of Alabama, and that is Merrill versus people. First of Alabama. The issue in that case was a district court had ruled that the Alabama’s secretary of state’s decision to ban curbside voting basically like a ballot drop box. The decision to ban curbside voting during a pandemic. Burdened the right to vote and violated the Americans with Disabilities Act because also the state didn’t allow poll workers to turn away voters who wouldn’t wear masks or to turn away voters with known cases of COVID 19. And that made it difficult for some people to go into polling places and actually submit their votes. So district court concludes Alabama can’t ban curbside voting and then that case makes its way up to the Supreme Court. And what happens.

 

Wilfred Codrington III There? Well, on the way, actually, to get the 11th Circuit saying, you know, we’re going to actually keep this one in place.

 

Leah Litman Right.

 

Wilfred Codrington III We’re actually going to sustain what the district court did and say that curbside voting is a possibility and localities could actually allow that ensure this social distancing. Now, the Supreme Court says, no, not so fast. Circuit court. Again, it’s not really clear why other than vibes, I guess, or like some sort of mutation of Purcell, because the confusion here is, again, we’re in the lead up to this election. We’re a month away from the runoff, five months from the general. The Supreme Court jumps in. I believe those 13 days from the date. And they’re saying, well, it doesn’t matter what the lower court thought. It doesn’t matter what the appeals court thought. We think something different. So we’re going to change the rules, talk about confusion again and a lack of deference for other courts. Right. The idea these very principles and again, the original case for Purcell was not extremely clear. It was not extremely long. But the way that they’re sort of trying to suss out what it means and these different cases are just so irreconcilable and inconsistent that it just it it does not pass the smell test. These are partizan actors now at this point, basically doing whatever they can do to allow a restrictive law to go into effect before the elections or to permit courts to anything that is going to decrease. Participation seems to be what the end result is.

 

Leah Litman Yeah. And part of what makes that so troubling is, you know, it’s not just a doctrine that is inconsistently applied. It’s a doctrine that is being inconsistently applied in ways that determine like who can win elections and who can exercise political power. You know, when we talk about the courts relationship to democracy, you know, this is the court basically being able to adjust, you know, the entire system for how we conduct our elections and how we decide who wins them and how we decide who will be able to obtain political power.

 

Wilfred Codrington III And it’s not surprisingly that many of these cases are coming out of competitive swing states. Right?

 

Leah Litman Right.

 

Wilfred Codrington III So Wisconsin.

 

Leah Litman Wisconsin.

 

Wilfred Codrington III Pennsylvania. Like that’s.

 

Leah Litman Florida.

 

Wilfred Codrington III Florida. It’s not surprising at all. And so, again, it’s just like these are political actions coming out of the court and there is no real consistent application of this doctrine that they’ve created out of whole cloth, because we don’t even know where the principle really comes from. It doesn’t come from the Constitution, doesn’t come from any of these statutes, and it seems to be overtaking both.

 

Leah Litman Yeah, I mean, Justice Kagan has described Purcell accurately as a principle of equity. Right. Which is basically like a principle developed in the exercise of the court’s equitable discretion, its ability to decide what makes for sound judicial administration, but also is fair to the parties, accommodates the public interest. And so it is a balancing act. You know, again, that the court fashions in the exercise of its discretion and you kind of see what the court cares about, you know, when it is given the opportunity to exercise discretion and determine like what calls for its intervention and what does not.

 

Wilfred Codrington III Yeah, but can we just like talk about equities at this point? Yeah. So we’re talking about these equitable relief here, right? Like these injunctions and states. But there’s also a test for that. Right. And it’s we usually consider three things. It’s the chances of success on the merits, the likelihood of success. We look at the hardships to either of the parties. If the court was a rule one way or the other, keeping the injunction in place or lifting it. And then we look at what’s going to happen to the public, the public interest. Right. But to me, I mean, it’s very clear from all the cases that apply these principles that the most important thing is your chances of success on the merits. Well, that’s what the lower courts are really ruling on. Right when. They say that you are disparaging the right to vote when you you are violating the Americans with Disabilities Act. Like your chances of success if they ruled, this means that you are going likely to win. As far as they can tell, the court doesn’t seem to be taking that into account at all. They’re just like maybe dealing with the other factors and not dealing with the big factor upfront. And that just becomes really problematic because now in Purcell is this equitable doctrine that’s changing the normal equitable doctrine as we apply it in any case, including in cases of election law.

 

Leah Litman [AD].

 

Leah Litman  So those were the cases that we were just discussing, you know, that you focused on in the article. But since this article came out, you know that it’s discussing and analyzing the super important phenomenon. There have been two other cases in which Purcell, you know, was potentially relevant that I wanted to lay out so we can see what Purcell has kind of become. One of those cases was also out of Wisconsin, and it was the Wisconsin redistricting case, Wisconsin legislature versus Wisconsin Elections Commission. You know, like many other states, Wisconsin had to conduct redistricting after the 2020 census and the Republican controlled legislature and Democratic governor came to an impasse. The parties went to the Wisconsin Supreme Court asking that court to draw districts. The court asked parties and interveners to submit maps and ultimately selected the governor’s map, which would have created one additional Majority-Black district than Wisconsin currently has. And the governor argued that that was required by the Voting Rights Act. Now the parties go to the United States Supreme Court, arguing that the Wisconsin Supreme Court maps violated the equal protection clause by relying too much on race. And the Supreme Court said the Wisconsin Supreme Court did error. And then on remand, that court selected a map that would reduce the number of majority black districts by one, rather than increasing the number of districts in a way that reflected, you know, demographic trends in the state. So I don’t want to spend like a ton of time discussing the relationship between race and election law. But because this is something that is both extremely important and also going to be on the court’s docket for next term, I do want to begin to give some introduction about it so people can familiarize themselves with this area, you know, which is likely to become exceptionally important and, you know, repeatedly come up. So, you know, I think most people are familiar with the idea that states can’t draw district lines on the basis of race, at least where they’re diluting the voting power of racial minorities. You know, a state can’t draw a district and pack all of the minority voters into one district or a lot of them, and then dilute the voting power by spreading racial minorities into different districts in which they wouldn’t be able to elect, you know, the candidates of their choice or obtain political power. But there are, of course, other ways that states might use race other than trying to intentionally dilute the voting power of racial minorities. Say, for example, a state is taking race into account, not a disadvantage, you know, voters who are racial minorities, but to consider whether racial minorities have proportional representation or have power to elect candidates of their choice, those are different usages of race under current doctrine, a federal statute, the Voting Rights Act. What remains of the Voting Rights Act, Section two has been interpreted to require some considerations like that, you know, to ensure that states are taking race into account in order to avoid diluting the political power of black voters. And the court has said when it does that, it needs to have a strong basis in evidence for concluding that the statute actually required it to take race into account and draw a majority minority district. So how does this Wisconsin opinion potentially relate to Purcell? And again, the opinion was the United States Supreme Court told the Wisconsin Supreme Court the maps you drew no good try again in order to kind of figure out what is going on. And I floated this conspiracy theory on the show before, so I’m definitely curious to hear your thoughts on the way election challenges typically work is at time one, someone draws the maps and then at time two, someone, usually a plaintiff files a case that says your maps are unconstitutional. So here, you know, the Wisconsin Supreme Court drew a set of maps. So what might have happened is a party might have filed a lawsuit in federal court saying that map you drew, Wisconsin Supreme Court violates the Constitution, but that’s not what happened. Instead, the parties asked the United States Supreme Court to basically directly review the Wisconsin Supreme Court’s selection of the maps, even though those maps had not been subject to, let’s say, like a full trial on whether they complied with the. Constitution or were necessary under the Voting Rights Act or something like that. So what do you think might have led the United States Supreme Court to intervene in the Wisconsin redistricting process in a way that seems to differ how the usual federal court process plays out with respect to district ing?

 

Wilfred Codrington III I am just taken aback by this case. It’s audacity, I guess. It’s clear to me. Or it’s becoming even more clear that the Supreme Court wants to completely rethink its approach to race and redistricting. That comes from the other case that we’re we’ll talk about, hopefully Merrell versus Milliken as well. But they’re just totally sending these signals that they think that section to the Voting Rights Act is on a collision course with the 14th Amendment and the equal protection doctrine there. Why the Supreme Court did this? It is not clear to me, but other than that, they could and they they it’s just continuing something that they’ve been doing already, which is making these almost merits rulings on this non merit doctrine to change the shape of the electorate in the maps, in the lead up to an election to benefit minority government, basically conservative minority governments in these places. And so just also just to note that the guiding principle for the Wisconsin Supreme Court in selecting the is the maps among the array of maps that were submitted was that we wanted to select the map. That is least change. Right. So they wanted to abide by what was in place as much as possible, while also taking into account considerations like there has been changes in demographics, including population and population shifts and different groups. Right. The problem here is that the state legislatures map reduced the number of black districts, even though that is not what happened in the population, it was just the opposite. So that is not anything near the least changed. That’s mega change. And the governor’s map is more in line with what’s going on with population demographics. So this is all just provisional in the first instance. The Wisconsin Supreme Court said that this could be challenged if we got it wrong. But the Supreme Court has ruled before, like, look, this is in the province of the legislature. So by adopting that principle of taking the map with the least change, really what the Wisconsin Supreme Court was doing was saying, we’re going to heed to what the legislators judgment has been on drawing maps. And so we’re going to try to protect our asses on that end. Right. But we’re also going to try to protect ourselves against any racial discrimination. And one person, one vote claims they are really walking a fine, fine rope right here. Right. A tight rope to try to get this thing done. And the Supreme Court just does not respect it at all. And in the process, I mean, I think I think the dissent calls this out look like look at all this stuff going on that the Wisconsin Supreme Court was doing. And you’re utterly disrespecting it. You’re utterly disrespecting it as people who say that they care about federalism and elections. And this should be the province of states.

 

Leah Litman Yeah. So I want to float my conspiracy theory for like, why I think that they got involved again in this, like, unusual manner. Like, there wasn’t a case challenging the maps that had been implemented. The Wisconsin Supreme Court did not purport to say they were addressing, much less resolving, you know, any possible constitutional or statutory challenges to the maps that they selected. It was just a preliminary assessment about, you know, which maps complied with the state constitutional principles. You know, the least changed principle together with federal law and the parties were welcome to raise challenges to those maps in actual litigation in trial courts. But let’s imagine that that actually happened. That is let’s imagine the Wisconsin Supreme Court left the maps and then let’s imagine like a new federal case is filed. You know, those federal cases, as you’re suggesting, like take time. Right. Like they require balancing competing considerations. So if the federal court collected all the evidence and heard from all the experts about the possible maps into, you know, addressing these constitutional challenges that might have caused a delay to the point where the court is deciding whether these maps, R&D, constitutional, close to an election, thereby raising the specter. Well, could the court and join the maps so close to an election? And I understand why that’s a concern. But the reality is like that concern doesn’t add. The need for normal litigation processes, like if the state had instead enacted a voter ID requirement. You can’t just go to the United States Supreme Court and be like decide whether that voter I.D. requirement is constitutional. Now, you know, four years before an election versus actually bringing a case and having that case unfold, even if it unfolds ultimately close to the date of an election. So it’s just this, again, like willingness to kind of manipulate procedures in order to what seems like arrive at a particular outcome.

 

Wilfred Codrington III First of all, that does not sound like conspiracy. It sounds like exactly what’s going on in different contexts. Right. And the fact of the matter is, the fear of Purcell has really been instilled in a lot of courts, especially after the 2020 cycle. Right now in these lower courts are scared. They don’t know what to do. And I think you’re right that the Wisconsin Supreme Court was probably also taking that into account. Look, we have to get something on the maps right now that can work. Before Purcell says that, we can’t. And it just reminds me of this April Fool’s joke that Richardson had, he said, basically, look, lawsuits protecting voting rights cannot be filed before the election because in those cases, claims are unripe and plaintiffs lack standing due to speculative nature of the claims. But claims cannot be filed too close to the election under what has become the Purcell principle, because those changes and election laws risk confusion for administrators and voters. And so basically you’re just stuck in this no man’s land. If you have to hit that, it seems like maybe one day, one hour where it is not too early or not too close, where you can actually have a claim that is going to protect the right to vote.

 

Leah Litman So that was the Wisconsin case. I did want to just give a shout out to on remand when the Wisconsin Supreme Court later selected a map that would have reduced or that will reduce the number of majority minority districts in the state aid to stand by Justice Jill Carroll that detailed in very telling terms what happened. Among other things, she says like, look, like we have choices here. We could invite for the briefing, we could invite an expert to submit, you know, maps that didn’t actually reduce the number of majority minority districts here. And instead, you know, a majority of this court, she says. So legislatures maps sending us careening over the waterfall and suggest that those maps evince disqualifying consideration of race, you know, reducing the representation of the Milwaukee area majority minority district. And then she goes into extensive evidence of Milwaukee’s history of racial segregation and racial disparities.

 

Wilfred Codrington III Someone shouting from the rafters.

 

Leah Litman Yeah, exactly. You know, it needs to be said. And if you read that opinion, you know, again, like all of the maneuvers that were taken in order to allow Wisconsin to arrive at this map, I think are just startling to behold.

 

Wilfred Codrington III It’s extraordinary.

 

Leah Litman Yeah. So the case that the Supreme Court is set to hear on its regular docket in which it will address the relationship between the Voting Rights Act and the Equal Protection Clause, and specifically when, if ever, states can consider race in order to ensure more accurate representation for minority citizens is Merrill versus Milligan? And that, of course, is the case. We did a special episode about with Dual Wrath of ACP LDF. So that case involves how litigation is actually supposed to work. Namely, Alabama drew a set of maps and then the plaintiffs said those maps violate the Voting Rights Act because they dilute the political power of racial minorities. And the district court holds all of these hearings, you know, moves as quickly as it can, and concludes that, yes, Alabama’s map did dilute the votes of black Alabamians. And then the Supreme Court says, actually, like, we don’t really like how normal Voting Rights Litigation Act works anyway. So this injunction can’t be in place. And we will set the case for arguments next term, which allows Alabama to conduct at least one election under these maps that a district court concluded intentionally diluted the voting power of racial minorities. And the court will decide whether the plaintiffs had established unlawful vote dilution under the Voting Rights Act. So what are you watching for or looking for in that Alabama case?

 

Wilfred Codrington III Could we just step back for a second and note you really startling things about this case? Yeah. Of the three judge panel that made this decision to where Trump. Appointees. So two of Trump’s appointees join a Democratic appointee and say this is a map that violates Section two of the Voting Rights Act and yet the Supreme Court. That’s not enough for the Supreme Court. Problematic number one. Problem number two is the fact that Alabamians, black Alabamians constitute about 27, 28% of the state’s population. Right. But they’re getting one of the seven districts right now, which is 14%. That’s about half. So if I want to really think about proportionality, give them another district and that would be okay. Part number three is like the mechanism for how their vote is being diluted. Right. There’s two areas of Alabama where you have high concentrations of black people. And again, it’s not because they all just gather there one day. This is because of the United States history of how this worked. Right. But one is around Montgomery that’s represented by Terri Sewell. And the other is in the black belt, too, which is agricultural area known for its black soil. But there are two areas where they’re super concentrated. And all of that is to say is this is what fits the jingles test, right? Because you have two areas where you have minorities sufficiently large and concentrated so they can make a district and then you’re in Alabama. So we know that the voting patterns between white and black people are very different. You can just look at their registration and their voter turnout. So this is like that archetypical case of the Voting Rights Act violation so problematic all over the place. The other part of this is that Chief Justice John Roberts says that this is all problematic because the district court applied the Voting Rights Act. Confusing as it may be, consistent with our precedent. Right. So we don’t even have John Roberts, whose sole aim in life, I guess, since he graduated, has been to dismantle the Voting Rights Act. He’s still saying that this is a correct application. And if we want to reconsider that doctrine, let’s do it later. So it’s really, really problematic. I just also want to note that there is no decision here. Nope. So like the court loves to say non-marital decision, but these are things that are going to be in place for an election, is going to determine political power in Alabama in this year, and then who knows what happens. So there’s no map. There’s also this bizarre concurrence from Kavanaugh. And I guess we should just start getting used to bizarre concurrences from Kavanaugh, particularly on Purcell. But the two things that are the most bizarre to me is one where he’s just saying like, look, elections are tough, elections are really hard. This is going to be confusing. Voters are going to be really confused. Well, no, sir, because voters don’t have districts when you start out in a redistricting cycle. So nobody knows where they’re going to be. So to say that this map that was immediately challenged right after it was instituted and the decision was issued shortly after that is going to be confusing is like that’s that’s a lie.

 

Leah Litman Yeah. And the idea that it disrupts the status quo, right. Is odd. There is no status quo. None. Right. Because Alabama can’t use its previous maps given, you know, the census. They need to update them. And so there isn’t a set of like existing maps, you know. Yes, there were the prior ones, but those ones can’t be you.

 

Wilfred Codrington III Can’t be more confused by using one map that doesn’t use one or the other because no maps exist. Right. Right. This is all done to these lawmakers. Drew up this map in less than a week. It was in less than a week. And they could have done they had a whole repository of maps. They could have selected one that would not have violated the Voting Rights Act within date, within days. So the fact that, like elections are hard and costly and all this other stuff, that’s never been a problem until now for some reason. I don’t understand that. And then three. I just want to go back to the sort of the equitable principles about states and injunctions. He just he’s just, like slippery as an eel here. Right. Like he’s elusive with this with the standard now, because he basically says that whole thing about the likelihood of success on the merits. So the district court rules that the likelihood of success is for these black Alabamians. Right. When it gets up to Kavanaugh, he says, well, it looks like that the state has a fair prospect. What fair prospect is not a likelihood of success. So now you’re just changing the whole standard for whether or not these equitable remedies actually apply. So there’s just so much going on here that is wrong, that what am I going to look for a home? I am going to look one. I’m going to look for like a sort of the thinking of section two of the Voting Rights Act. You know, we were talking about Brnovich last year around this time and that applied to vote denial cases. I think the. It is going to reconfigure its doctrine as related to dilution cases and the redistricting. So that’s going to be really problematic. And after that, it’s just it’s anybody’s guess, really. I guess there’s also some funky things going on out there about whether or not there’s even a private right to action to these types of cases in section two cases. So maybe if Gore, Sage and and Thomas get their way, then the court’s going to say, well, it has to be the Department of Justice only that can bring these claims, which means that you’re never going to have the challenges that you have, because basically groups like the NAACP act as if they are public attorneys generals looking for these cases where the law is being violated. And the Department of Justice does not have the resources to litigate these cases all over. So I guess I’m looking for one. A complete dismantling of our Section two doctrine as we know it, and two, potentially a dismantling of the ability of private parties to bring these claims in the first instance.

 

Leah Litman Yeah, it turns out nothing is necessary to enforce the Voting Rights Act, and you can’t enforce the Voting Rights Act at all. Only Wilbur Ross can do so. That will be the end to the saga.

 

Wilfred Codrington III Whereas overall. So you need them.

 

Leah Litman Exactly. So we are coming up on our time. But I did want to give you, you know, an opportunity for any kind of like last thoughts on Purcell. You know, the court in election law cases or voting rights, you know, if you wanted to share them.

 

Wilfred Codrington III Yeah. I just think it’s important to emphasize that Purcell is steadily creeping into the election law field and it’s really overtaking establish precedents and principles. Right. This is something, again, loosely based in equity morphing into something else that is seems to have more power with these justice, more salience than section two of the Voting Rights Act than any parts of the Voting Rights Act, probably the Americans with Disabilities Act and the Constitution itself. Now, this is really problematic. I don’t know what to do about this, but it’s scary. I haven’t really at the point where I think that if a state enacted a law that said black people cannot vote, and this was a week before the election, because, remember, Purcell only applies to judges. I’m not sure the Supreme Court would say, you know, that is unconstitutional or let’s just wait until after the election to figure out whether this is unconstitutional, even though it flagrantly of slaps, you know, the 15th Amendment in the face. Right. I just don’t know what the Supreme Court to do. And like that. Maybe that sounds a little hyperbolic, but I’m at that point because that’s functionally what’s happening in these other cases in the lead up to these elections. There is nothing that is so egregious by these partizan actors to entrench themselves in power that the Supreme Court sees it as problematic or it’s just too close to the election. And that to me is really, really frustrating. We’re at this point where we really need to rethink what’s going on in our democracy. Consider all of this stuff. People are talking about the Electoral Count Act, people are talking about election subversion. Purcell is up there with the best of them. What the court is doing with Purcell to undermine our democracy is really a threat to our democracy.

 

Leah Litman So on that note, thank you so much Wilfred, as always, for joining us, listeners. Do check out his article precisely in the Pandemic and NYU Law Review. And thank you again Wilfred, for making time for this.

 

Wilfred Codrington III Thank you Leah for having me. This has been great.

 

Leah Litman Before we go, we want to make sure you knew that the first vote by mail ballots are hitting mailboxes and the earliest in-person voting starts this week. If you don’t know how you’re voting, this is the week to find your light, fix your wig and get your shit together. Visit Vote Save America dot com slash every last vote to make your plan to vote. Remind everyone you know to do the same and donate to the every last vote fund to directly support the work of organizers and volunteers in key swing states that are actively working to battle disenfranchisement in communities of color. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Girard, and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern support from Anoushka Chander.