Senate hearing on Supreme Court's ruling on Section 2 of the Voting Rights Act

[0:00] Okay, I call the hearing of the Senate Judiciary Committee, the Subcommittee on the Constitution, [0:04] to order today's topic, Enforcing Calais, Implementing the Supreme Court's Command Against Racial Gerrymandering. [0:10] This hearing will examine the Supreme Court's recent decision in Louisiana v. Calais, [0:15] what it requires of states, courts, and the Department of Justice, [0:19] and how Congress should understand the decision's consequence for redistricting, equal protection, and the Voting Rights Act. [0:25] I'll give my opening statement, then the ranking member, Senator Welch, will give his. [0:29] We'll then introduce the witnesses, swear them in, and hear their opening statements [0:33] before proceeding to a five-minute round of questionings per senator. [0:38] Today's hearing begins with a simple proposition. [0:41] Congress passed the Voting Rights Act to stop racial discrimination in voting. [0:45] It did not pass the Voting Rights Act to require racial discrimination in redistricting. [0:50] But for too long, Section 2 was stretched beyond its text, its history, and the Constitution itself. [0:56] What began as a great civil rights statute became a racial sorting machine. [1:03] States were told that unless they carved citizens into districts by race, they were violating the law. [1:09] Then, when they did what the courts and activists demanded, they were told they violated the Constitution. [1:15] That was the trap Louisiana faced in Calais. [1:18] Draw a map without a second-majority black district and get sued under Section 2. [1:23] Draw the second-majority black district and get sued for racial gerrymandering. [1:27] This is a racial sorting regime, not the rule of law. [1:32] The Supreme Court finally said enough. [1:35] In Louisiana v. Calais, the court restored the Voting Rights Act to its proper constitutional role. [1:41] Section 2 still prohibits racial discrimination in voting. [1:44] It still protects every citizen's right to participate equally in the political process. [1:49] But it does not require racial proportionality. [1:52] It does not require racial quotas. [1:55] It does not require states to draw congressional districts as if Americans were permanent members of racial blocks. [2:02] The old regime did real damage. [2:05] It produced bad doctrine and worse maps. [2:08] Districts stretched across whole regions, split communities, ignored geography, and treated voters as racial inventory. [2:14] Compactness, contiguity, county lines, and communities of interest were shoved aside to satisfy racial targets imposed by litigants, activists, and judges. [2:28] And that old regime distorted our political system. [2:32] The old Section 2 regime handed Democrats a systemic advantage. [2:36] It let Democrat lawyers and allied groups launder partisan demands through the language of civil rights. [2:42] It allowed them to say, this map does not produce a racial outcome we want. [2:47] Therefore, it is illegal. [2:49] That theory converted the Voting Rights Act into a shield against discrimination, into a sword for partisan political power. [2:57] Deputy White House Chief of Staff and Homeland Security Advisor Stephen Miller put it this way. [3:05] The combination of illegal alien apportionment, flawed censuses, and unconstitutionally racially gerrymandered districts created an artificial 40-plus house seat advantage for Democrats. [3:17] And that racial sorting regime was disastrous for the Constitution's guarantee of equal protection over laws. [3:24] As Justice Clarence Thomas explained in his concurrence in Calais, the old Section 2 regime, quote, [3:30] led legislatures and courts to systematically divide the country into electoral districts along racial lines. [3:38] Blacks were drawn into black districts and given black representatives. [3:42] Hispanics were drawn into Hispanic districts and given Hispanic representatives, and so on, end quote. [3:46] That old regime was based on the premise that, to quote Justice Thomas again, [3:55] members of a racial group must think alike and that their interests are so distinct from the rest of the people [4:02] that the group must be divided into separate electoral districts, [4:06] allocated a proportion of political power based on race, [4:10] and provided a separate body of representatives. [4:12] But as Justice Thomas rightly points out, there are few devices that could be better designed to exacerbate racial tensions [4:21] than that race-based premise that the consciously segregated districting system it constructed in the name of the Voting Rights Act. [4:32] Indeed, as Justice Thomas correctly concluded, [4:34] that old regime of racial balkanization for racially designated districts was repugnant to any nation. [4:43] Such as ours, that strives for the ideal of a colorblind constitution, end quote. [4:49] That is the regime that Calais begins to dismantle. [4:53] But this hearing is not about applauding the court. [4:55] The court has done its part. [4:57] Enforcement has to happen now because unconstitutional maps are still in effect. [5:02] Look at California. [5:04] State law created an independent redistricting commission. [5:06] But Governor Gavin Newsom and California Democrats overrode that process [5:10] and hired a mapmaker to redraw their congressional districts. [5:14] That mapmaker publicly declared that the number one thing that he started to think about [5:21] when drawing the new California congressional map was creating, quote-unquote, Latino-majority districts. [5:28] Where still, he tried to rationalize that racial discrimination as essential [5:34] for ensuring that already racially gerrymandered VRA seats, Section 2, Voting Rights seats, [5:41] were bolstered and made most effective. [5:45] That is the whole problem. [5:46] Race was used as a districting tool to intentionally discriminate, [5:52] and the Voting Rights Act was used as the excuse. [5:54] After Calais, that excuse is gone. [5:57] Or look to Illinois. [5:59] Governor Pritzker called Calais an abomination, [6:02] which tells you exactly how much Illinois has riding on the old regime. [6:05] Illinois even built race into the machinery of redistricting. [6:10] Its Voting Rights Act hardwires racial sorting into redistricting [6:13] by requiring mapmakers to create and preserve district [6:17] based on minority voters' ability to elect candidates, [6:21] influence elections, or form racial coalitions. [6:25] When Governor Pritzker signed the maps, [6:26] he praised plans designed to preserve, quote, [6:29] clusters of minority voters, end quote, [6:31] with, quote, collective electoral power, end quote. [6:33] That is an explicit gerrymandering [6:38] and the kind of racial spoils system that our Constitution prohibits. [6:43] California and Illinois are not side issues. [6:47] They're test cases. [6:48] California shows how race can be smuggled into a partisan gerrymandering [6:51] under the label of Voting Rights Act compliance. [6:55] Illinois shows how race-first redistricting [6:58] can be embedded directly into state law. [7:01] Both should be reviewed immediately. [7:03] These maps do not become constitutional because they're already in use. [7:08] They do not survive because politicians call them voting rights maps, [7:12] and they will not disappear on their own. [7:15] The Department of Justice has an obligation to act. [7:18] The Civil Rights Division should not sit by [7:20] while racially gerrymandered maps remain in force for another election. [7:24] I'm calling on Assistant Attorney General Harmeet Dillon to move immediately, [7:29] review maps drawn or defended under the old regime, [7:32] identify districts built on unconstitutional racial sorting, [7:36] intervene where appropriate, [7:38] file statements of interest where appropriate, [7:40] and support plaintiffs enforcing Calais in court. [7:43] Private plaintiffs have a role, too. [7:45] Bring the cases now. [7:47] Challenge the illegal maps now. [7:49] Ask the courts to act now. [7:52] We're heading into an election cycle. [7:53] Every election held under an unconstitutional map [7:56] compounds the injury. [7:58] Every illegal district that remains in place distorts the House of Representatives [8:02] and denies American districts drawn under the Constitution [8:05] rather than racial arithmetic. [8:09] The left will say this guts the Voting Rights Act. [8:12] It does not. [8:13] It saves the Voting Rights Act from becoming what the Constitution forbids, [8:17] a command to discriminate. [8:19] The Voting Rights Act protects citizens from racial discrimination. [8:23] It does not authorize government to commit racial discrimination in their name. [8:27] That is the lesson of Calais, and that is why this hearing matters. [8:31] Racial gerrymandering is illegal. [8:33] Illegal maps are still in effect. [8:36] The Department of Justice must enforce the law. [8:38] Plaintiffs must enforce the law. [8:40] And Congress must make clear that no state, no court, [8:44] no activist group gets to divide Americans by race and call it democracy. [8:49] Senator Welch. [8:51] Mr. Chairman, thank you very much for calling this hearing, [8:54] and I believe this may be the most important topic of discussion in this Congress [9:00] and certainly my time serving in the United States Senate. [9:03] It goes to the heart of the right of each and every citizen [9:06] to select who their leaders will be. [9:09] And I got involved in public service back in the 60s. [9:14] In 1967, I dropped out of college and hitchhiked to Chicago [9:17] and worked with a community organization that was fighting housing discrimination. [9:21] And I remember then being so moved by people who are on the receiving end of discrimination [9:28] in their determination and their generosity of spirit, despite what they had suffered. [9:36] They had endured widespread discrimination that was totally legal. [9:40] And these are folks who just recently had gotten the right to vote. [9:44] And that struggle for civil rights, which was centered around getting the right to vote [9:49] for people who legally were denied access to the vote, was recognized by Martin Luther King [9:55] when he said, [9:56] So long as I do not firmly and irrevocably possess the right to vote, I do not possess myself. [10:04] I cannot make up my mind. [10:06] It is made up for me. [10:08] I cannot live as a democratic citizen observing the laws I have helped to enact. [10:13] I can only submit to the edict of others. [10:17] The Voting Rights Act did not come out of nowhere. [10:20] It came out of a long history of legislated discrimination. [10:26] I do believe, in contrast to you, I do believe that the Louisiana v. Calais [10:32] turns back the clock on that hard-won progress. [10:35] And we're already seeing states from Louisiana to South Carolina to Tennessee [10:39] have called for redistricting ahead of midterm elections in six months. [10:45] And millions of voters will be impacted. [10:48] So I do believe this decision was wrong on the merits. [10:52] And I believe there's a trail of decisions that have led to what I regard [10:57] as a very remarkable and troubling moment [10:59] about the erosion of citizen power, [11:03] about the erosion of legislative power, [11:06] and about the expansion of executive power. [11:08] In 2010, Citizens United opened the door to unlimited spending. [11:14] And now, literally, billionaires spend billions of dollars affecting our elections, [11:19] really squeezing out access for everyday citizens. [11:22] Republican and Democrat, by the way. [11:24] Shelby County v. Holder. [11:26] It removed the oversight of potentially discriminatory state voting restrictions. [11:32] And in Rucho v. Common Cause, that was 2018, [11:36] the court did not act on partisan gerrymandering, [11:40] literally making it legal for there to be partisanship as the basis of a new map. [11:49] And, of course, in Trump v. United States, [11:51] the court basically put the president above the law. [11:54] The court has got in one of the last remaining enforceable sections of the Voting Rights Act. [12:02] And it's going to leave many communities of color with few enforceable tools to fight unfair maps. [12:09] Equally concerning is how the legislative branch has allowed that to happen. [12:14] This is the branch that is supposed to be the most responsive to everyday citizens in all of our districts. [12:24] Congress reauthorized the Voting Rights Act on a bipartisan basis, [12:28] strong Republican and Democratic support, five times. [12:32] And the Supreme Court reached its recent judgment based on its own assessment [12:37] that the protections codified by Congress, [12:41] by legislators who had been duly elected by citizens all across this country, [12:46] the Supreme Court substituted its judgment about discrimination in its existence for that of the legislature. [12:54] The effect of this decision, I do believe, will be monumental for many of our fellow citizens in the South, particularly. [13:01] In Louisiana, as I mentioned, a third of the population is black. [13:07] Joe Biden won 40% of the vote. [13:09] Yet after callous, Louisiana has proposed a map [13:12] that will only have one African-American representative in Congress out of six House members. [13:18] South Carolina, very much the same thing. [13:21] A quarter of the population is African-American. [13:24] The redistricting would leave South Carolina in all likelihood [13:27] with literally no black representation out of 10 congressional districts. [13:35] And whether the Supreme Court intended to or not, [13:40] by blessing partisan gerrymandering, on the one hand, [13:48] while gutting the Voting Rights Act, [13:50] the Roberts Court has achieved the same outcome [13:56] as Jim Crow laws in the South had done generations before. [14:01] It's removed African-American representation on a massive scale. [14:06] That is fact. [14:08] That's not an assertion. [14:09] That's a fact. [14:11] Mr. Chairman, I believe we are at such a crossroads here [14:15] and we are at a race to the bottom. [14:19] I believe, and I know you believe this too, [14:21] that those of us who have different points of view [14:23] should compete for support with the battle of ideas. [14:28] We have to get the vote of people that we want to support us [14:34] and send us here to Congress. [14:36] We should be competing on the basis of our ideas. [14:39] We should not be competing on how clever we can draw the map [14:44] to suit our own political bias. [14:46] Mr. President, I believe it's time for this Senate [14:50] to stand up and ban partisan gerrymandering, number one. [14:57] And number two, I believe it is time for this Senate [15:00] to ban mid-decennial redistricting. [15:07] Both of those things are accelerating the race to the bottom [15:10] and it's interfering with each of us [15:13] from competing with our competitors in each election [15:16] on the basis of our ideas. [15:19] And it's a race to the bottom because, as I said, Texas did it. [15:23] It started with the redistricting. [15:25] California followed and the justification is they did it. [15:30] We have to do it. [15:32] Our democracy depends ultimately on protecting and preserving the right [15:37] of individual citizens to pick their politicians, [15:41] not intensifying the control that politicians have about who the voters are [15:46] that they will permit to be involved in the election. [15:49] I yield back. [15:50] Thank you, Senator. [15:51] Senator Durbin. [15:54] Thank you, Mr. Chairman. [15:56] It's a basic question, isn't it? [15:58] Is it over? [15:59] Is discrimination really over in this country? [16:02] I mean, we're sensitive to the fact of where we've been. [16:05] We had a civil war, did we not, over the issue of slavery and states' rights? [16:09] I thought we'd resolve that with the union prevailing. [16:13] And the question today is, what's happened since? [16:17] I can remember an experience that I had as a college student. [16:23] This dates me, but I'm going to tell you anyway. [16:24] I was at Georgetown University here in Washington, and basically several of us said, [16:31] we hear there's going to be a march in Selma, Alabama. [16:34] Let's go down and join them. [16:35] Well, we were a little bit worried. [16:37] The year before, three civil rights workers were killed in Mississippi, and these white [16:42] guys with license plates from the north wondered if it's a smart thing to do to go down there. [16:48] In the end, we decided not to go. [16:50] I regret it ever since. [16:52] But I'll tell you what happened in the meantime. [16:54] I was elected to the House and Senate, and in the Senate, a man by the name of John Lewis [16:59] used to take us down to Selma, Alabama, to walk down Edmund Pettus Bridge and retrace the [17:05] steps that he cast on that day. [17:09] I'll never forget that morning. [17:10] It was a Sunday morning, and I had to leave early to come back to Washington, and it was [17:15] John and myself walking down the Edmund Pettus Bridge, and he pointed to the spot where they [17:19] almost killed him, fractured his skull and almost killed him. [17:24] What was the Selma march all about? [17:26] It was all about this. [17:27] There were 15,000 black people living in Selma, Alabama. [17:30] Do you know how many were registered to vote? [17:34] 335. [17:35] 335 out of 15,000? [17:38] What was wrong with that? [17:39] They couldn't pass the literacy test. [17:42] They couldn't pass the questions that John Kennedy asked nominees for the federal courts. [17:47] They couldn't explain what a letter of mark and reprisal was, and therefore they were denied [17:52] the right to vote. [17:53] That wasn't just in Selma. [17:55] It was in the south, and it was over and over again. [17:58] In many places in the north, discrimination just as bad. [18:02] And so the Voting Rights Act was passed after the Selma march. [18:04] It was passed on a bipartisan basis, and we've used it in extreme situations to try [18:10] to give African Americans and any others discriminated against a chance to win election, a chance [18:17] to be registered to vote. [18:18] The declaration from the Supreme Court in this case, as well as the political position of [18:25] many of my colleagues, is we don't need it anymore. [18:27] We don't have discrimination anymore. [18:29] I don't believe that's true. [18:31] I wish it were true, but I don't believe it's true. [18:33] The basic question we have to ask ourselves is whether or not we are denying to some Americans [18:38] who are qualified and legally eligible to vote an opportunity to do so. [18:43] I think this hearing will get into some aspects of it, but I deeply regret we reached a point [18:49] where we would have a quote from Stephen Mitchell to explain why we're here today. [18:55] I know him. [18:56] I think many people here know him. [18:58] He does not represent to me a balanced approach to our Constitution and its rights. [19:04] So Mr. Chairman, I'm afraid this hearing is not off on a good foot as far as I'm concerned, [19:09] but I want to be on the record clearly. [19:12] Walking across that Edmund Pettus Bridge with John Lewis, I realized what was at stake back [19:17] in 1965. [19:19] It's still at stake today. [19:21] We have to go that extra step to guarantee Americans the right to vote when they're denied [19:26] that opportunity. [19:27] To do otherwise is to, I think, deface our Constitution. [19:30] I yield. [19:31] Thank you. [19:33] We'll introduce the witnesses. [19:34] The first majority witness is Eddie Grime. [19:38] Eddie is a partner at Graves, Garrett, and Grime, where he focuses his practice on complex [19:42] commercial litigation, free speech and election law, internal investigations, and whistleblower [19:47] claims. [19:48] He has been recognized as a go-to lawyer on constitutional and policy issues and was named [19:53] a constitutional election law trailblazer by the National Law Journal in 2020. [19:57] Mr. Grime received his law degree from Harvard Law School in 2002 and received his bachelor's [20:03] degree, suva cum laude, in economics and political science from the University of Missouri. [20:08] At the United States Supreme Court, he successfully argued Louisiana v. Calais on behalf of the private [20:14] plaintiffs. [20:15] Will Chamberlain serves as senior counsel at the Article III Project. [20:19] After graduating from Georgetown University Law Center in 2015, he joined Quinn, Emanuel, [20:25] and your cohort, okay, sorry, and Sullivan in Los Angeles as an associate. [20:31] He later worked as an attorney at the Competitive Enterprise Institute, focusing on class action [20:36] litigation. [20:37] In 2019, he revived Human Events, the nation's oldest conservative magazine, where he served [20:42] as publisher and editor-in-chief. [20:45] Thank you. [20:46] And I want to welcome Mr. Todd Cox, who is associate director of counsel at the NAACP's Legal Defense [20:54] Fund, or LDF. [20:55] And as associate director of counsel, Mr. Cox works to execute their strategic direction of [21:01] the organization's policy and external work. [21:05] He previously worked for five years in philanthropic work, and before that served as LDF's director [21:10] of policy. [21:12] During the Obama administration, Mr. Cox was the director of the Office of Communications [21:17] and Legislative Affairs at the U.S. Equal Employment Opportunity Commission. [21:22] Mr. Cox is a proud graduate of Princeton University and the University of Pennsylvania Law School. [21:28] It is the tradition of this committee to swear in all the witnesses who testified before it, [21:34] so please stand and raise your right hand. [21:36] Do you swear that the testimony you're about to give is the truth, the whole truth, and [21:42] nothing but the truth, so help you God. [21:44] Thank you. [21:45] You can be seated. [21:46] And we'll start with you, Mr. Grine. [21:55] Ranking Member Welch and members of the subcommittee, thank you for the opportunity to testify before [22:02] you regarding the enforcement of the U.S. Supreme Court's decision in Louisiana v. Calais. [22:08] Calais was one of the most significant election law decisions, indeed one of the most significant [22:13] 14th and 15th Amendment decisions of the past several decades. [22:17] It should end the drawing of legislative districts based on race. [22:23] It also ends an unnecessary tension in the law. [22:27] Understanding the source of that tension is necessary to properly implement Calais because [22:33] at bottom, Calais is a resolution of that tension. [22:37] The tension was between the mandate of the 14th Amendment and enforcement of the 15th. [22:43] It arose because majority-minority districts were forcibly created either by states or [22:50] by courts every time it appeared that they were even somewhat possible. [22:55] And courts created them without finding that the reason the district had not been created [23:00] was because of intentional racial discrimination in drawing districts. [23:05] Calais solves this tension by clarifying an obvious misunderstanding in the courts. [23:09] It clarifies that in applying the Voting Rights Act, majority-minority districts can't be intentionally [23:17] created, that is, created with the intent to make such a district without making the kinds [23:24] of showings that the 14th and 15th Amendment already require. [23:28] If a state or court intends to rely on Section 2 to create or preserve a remedial majority-minority [23:35] district, then they must carefully consider three points in applying the Thornburg v. [23:42] Jingles precedent. [23:44] And I won't go through what the original Thornburg v. Jingles test is. [23:49] I want to focus on what Calais clarified. [23:51] First of all, the majority-minority district cannot be drawn with race as a districting [23:58] criterion, and the district must meet traditional and non-racial redistricting criteria, including [24:06] any non-racial political goals of the state. [24:10] Second, racially polarized voting must be shown to stem from racial animus, the desire to vote [24:18] for or against someone because of their race, and be separated from the mere circumstance where [24:24] different races tend to vote for different parties because of different political beliefs [24:29] in a certain area. [24:29] Third, there must be a showing of factors indicating an objective likelihood of intentional racial [24:37] discrimination in districting in the area where the remedial district was drawn. [24:42] Requiring proof of these three factors ensures that the 14th and 15th Amendments operate [24:47] as a kind of mesh, as a seamless web of protection for voters. [24:52] It resolves the tension that had developed, but it also is faithful to precedent. [24:59] There was no Jingles majority, that's the Thornburg v. Jingles case, for the principle that racial [25:05] intent doesn't matter in polarized voting. [25:09] And White v. Register, an earlier case that the Senate cited in its report in 1982 with the [25:16] last amendment of the VRA, was not purely an effects-based test. [25:21] In my view, the only proper application of Calais is to identify the districts that would fail [25:31] today under the Supreme Court's clarified factors. [25:35] Districts that fail this test violate the 14th Amendment and the 15th Amendment. [25:42] In applying these principles to existing districts, it is important to note some important limitations. [25:47] First, districts are not suspect and subject to challenge merely because they are majority-minority [25:53] districts. [25:54] Second, districts that had necessarily had to be drawn to remedy recent intentional discrimination [26:00] based on race should survive until the underlying racial discrimination dissipates. [26:06] And finally, it is important to implement Calais as expeditiously as sound election administration [26:11] allows, given Purcell v. Gonzalez and the election deadlines and administrative structure in many [26:17] states. [26:18] Federal courts may have a limited role to play in enjoining unconstitutional maps during the [26:23] current cycle. [26:24] There are some very notable exceptions. [26:26] The laboring oar is held by state legislatures in many states. [26:31] I want to make one final note that's not in my written testimony, but in my few seconds left, [26:36] I want to point out three judge courts are granted jurisdiction under 28 U.S.C. 2284 over a lot of [26:44] these racial gerrymandering claims. [26:46] We think the Senate should expand that and expressly state that 2284 jurisdiction also goes along with [26:54] VRA claims. [26:55] That will stop forum shopping and allow uniform enforcement of the 14th and 15th Amendments. [27:03] Thank you. [27:04] Thank you, Mr. Graham. [27:05] Mr. Cox. [27:05] Mr. Scott. [27:13] Chair Schmidt, Ranking Member Welsh, and members of the committee, good afternoon. [27:17] My name is Todd Cox, and I am Associate Director Counsel for the Legal Defense Fund, or LDF. [27:23] Since LDF's founding by Thurgood Marshall in 1940, we've worked to expand voting rights [27:27] for black Americans. [27:29] The Voting Rights Act has been central to that effort, and we have litigated most of the seminal [27:33] cases interpreting its scope. [27:35] Our attorneys presented oral argument in Allen v. Milligan, in which just three years ago, the [27:39] Supreme Court fairly applied Section 2, and twice in the Calais case, in which the court [27:44] claimed to uphold the landmark law while destroying it. [27:48] The Calais decision has already been destructive for black communities across the country. [27:51] But before I discuss Calais specifically, I want to put our current moment in historical [27:55] context. [27:56] As we mark 250 years since the Declaration of Independence, and after the Supreme Court [28:00] has once again undercut Congress's strongest action to implement the vision of equality and [28:06] the Reconstruction Amendments, this hearing is not truly about a decision, but rather a more [28:11] fundamental set of questions. [28:13] Will we retrench and rewind history, returning to a time when democratic representation and [28:18] political power were synonymous with white supremacy and racial hierarchy, or will we push forward [28:23] and achieve the truly inclusive, multiracial democracy that our nation can and must become? [28:30] What will the next 250 years look like, and what role will everyone in this room play in [28:35] forging this path? [28:36] The Reconstruction Amendments that followed the Civil War were enacted with an explicit purpose [28:41] to end racial hierarchy and create a multiracial democracy. [28:45] After Reconstruction, however, came a backlash, known as the Redemption, which both pushed back [28:52] political and social equality and quickly erased those gains in the South, abetted by infamous [28:57] Supreme Court decisions such as Plessy v. Ferguson. [29:01] The resulting Jim Crow era endured throughout the first half of the 20th century until the [29:06] Voting Rights Act of 1965 finally gave us a multiracial democracy, but the backlash came back. [29:11] The white power structure adapted and shifted from overt discriminatory barriers to systems [29:20] through drawing district lines that removed the voice of African Americans and prevented [29:25] them from actually being able to exercise and elect candidates of choice. [29:29] That's known as racial vote dilution. [29:31] The court was on the wrong side of history again, undercutting the Voting Rights Act's protections [29:35] against vote dilution in 1980 by requiring voters to prove that unfair maps are crafted with [29:40] discriminatory intent. [29:42] Congress responded swiftly and forcefully, amending the Voting Rights Act in 1982 to correct the [29:47] Supreme Court's overreach and clearly establish a results-based test for providing racial discrimination [29:52] under the Voting Rights Act. [29:54] Yet over the past decade plus, the Roberts Court has eviscerated the Voting Rights Act in Shelby [29:59] County v. Holder, Branovich v. DNC, and now Louisiana v. Calais. [30:03] In Calais, the Supreme Court substituted its views of the Congress's considerate judgment, [30:08] repudiating the 82 amendments and making discriminatory maps almost impossible to challenge, so long [30:13] as the state or locality defends its map on partisan grounds or some other grounds that it [30:19] deems appropriate, thereby entrenching discrimination against minority voters. [30:24] Perhaps the most invidious aspect of the decision is the fantasy that post-racial America concocts [30:30] to support its desired ends. [30:32] Every day, black Americans feel the sting of racism in our lives. [30:36] The ongoing racism profoundly shapes the landscape of opportunity, including access to fair [30:40] representation and political power. [30:42] Yet without evidence, the Roberts Court wishes this world away and pretends we are a nation [30:47] that has already achieved our highest ideals. [30:50] This is present reality, not a relic, and courts have documented it extensively, not decades ago, [30:56] but currently. [30:56] Calais has unleashed chaos in the 26 elections currently underway and already undercut fair [31:02] representation for black voters. [31:03] Although news coverage is focused on congressional representation, I want to make it clear that [31:08] Calais impacts black representation on school boards, city councils, county commissions, and [31:12] state legislatures everywhere. [31:14] The most important victims of Calais' court's overreach are not elected officials, but rather [31:19] black voters and other voters of color who are denied the opportunity to elect candidates [31:23] of choice. [31:24] One thing the decision did not do was shift the racial gerrymandering law. [31:29] Calais does not call into question the constitutionality of majority-minority districts or other districts [31:33] that give voters of color an opportunity to elect candidates of choice. [31:36] And I would caution those who seek to overread Calais to attempt to roll back progress by targeting [31:41] majority-minority districts that themselves provide that opportunity, because that might be [31:46] probative of discriminatory intent. [31:49] Though this moment is dire, there's a path forward. [31:51] Black Americans have always pushed the nation towards its highest ideals. [31:54] And just three days ago, I was in Alabama witnessing thousands of folks gathered to recreate the [32:00] bloody Sunday march and light a path to a brighter future. [32:03] Since 2013, this court has dismantled key parts of the Voting Rights Act, and that can't stand. [32:08] Congress must act to respond to the court's overreach and ensure that this body fulfills its [32:12] constitutional responsibility to protect the right to vote. [32:15] States must step up to protect their own voters from discrimination, and people must fight [32:19] back with mass mobilizations, as we saw already, and at the ballot box. [32:24] The question that I posed before really needs to be answered by each person in this room. [32:29] Those with most power, such as members of Congress, have the most responsibility. [32:33] Thank you very much. [32:33] I'm happy to answer questions. [32:36] Thank you. [32:36] Mr. Chamberlain. [32:38] Thank you. [32:39] Chairman Schmidt, Raking Member Welch, and members of the subcommittee, thank you for the opportunity [32:42] to testify today on enforcing the Supreme Court's decision in Louisiana v. Calais. [32:47] Louisiana v. Calais decided last month held that Louisiana's congressional map, which added [32:51] a second-majority black district, was an unconstitutional racial gerrymander. [32:55] The holding rests on clear constitutional principles. [32:57] As Justice Alito explained in his opinion for the court, Louisiana's SB8, which created the [33:01] congressional map in question, quote, triggered strict scrutiny because the state's underlying [33:05] goal was racial. [33:06] Given that strict scrutiny applied, Louisiana had to demonstrate that its use of race was narrowly [33:10] tailored to further a compelling governmental interest. [33:13] And no such interest existed. [33:15] Properly construed, Section 2 itself targets intentional racial discrimination. [33:18] It does not license racial bean counting to create majority-minority districts. [33:23] This command is not confined to Louisiana or to any single party or region. [33:27] It binds every state legislature, redistricting commission, and court in the country. [33:31] Any map in which race was intentionally used as a factor is presumptively unconstitutional. [33:36] California and Illinois are cases in point. [33:38] In Illinois, the Democratic-controlled General Assembly produced a congressional map widely [33:43] recognized as one of the most bizarre gerrymanders in the nation. [33:46] If this gerrymander were purely partisan, there would be no federal constitutional question. [33:51] But, as explained in the recently filed lawsuit Ives v. Pritzker, Illinois law requires line [33:56] drawers to use racial demographic data to preserve clusters of minority voters under the guise of [34:01] Voting Rights Act compliance. [34:04] Those districts would thus fail strict scrutiny under Calais. [34:06] California's new bizarre gerrymander also fails the Calais test. [34:11] Its new map, adopted after the passage of Proposition 50, is another bizarre partisan gerrymander. [34:17] Perhaps its most bizarre district is the new second congressional district, which manages to include Sausalito [34:22] just across the Golden Gate Bridge from San Francisco, with Modoc County in the far northeastern corner of the state. [34:28] Now, if anyone truly believes that it's reasonable for the residents of Modoc County to be in the same congressional district [34:32] as the residents of Sausalito, I might just try and sell you the Golden Gate Bridge. [34:36] But, as we discussed, partisan gerrymanders are constitutional, even if bizarre. [34:41] But California's line drawer, too, impermissibly used racial factors to draw their lines. [34:46] The map drafter, a man named Paul Mitchell, admitted as much publicly on multiple occasions. [34:50] In a presentation, he stated that, quote, the number one thing he first started thinking about, end quote, [34:55] when drawing the map was, quote, drawing a replacement Latino majority minority district in the middle of Los Angeles, end quote. [35:01] On X, Mitchell boasted that his new map would, quote, increase Latino voting power, increase Asian American voting power, [35:09] and add one more Latino influence district. [35:12] These motivations are impermissible under our Constitution, and Calais ensures that map drawers can no longer use the Voting Rights Act [35:18] as an excuse for this odious racial bean counting. [35:22] States whose maps rest on these foundations have a clear duty. [35:25] They should acknowledge that the affected districts are unconstitutional and redraw them using race-neutral criteria. [35:29] Compactness, contiguity, respect for political subdivisions, or any other legitimate non-racial factors. [35:35] The fact that we are well into the 2026 election cycle provides no blanket exemption from this constitutional obligations. [35:41] Special sessions can be convened, primary elections can be delayed, and candidate filing deadlines can be adjusted where necessary. [35:48] In short, unless it is simply impossible to implement constitutional maps in times for November's elections, [35:53] state governments should do everything in their power to pass maps for this year's election that don't discriminate on the basis of race. [35:58] I welcome any questions. [36:01] Okay, thank you very much. [36:02] I'll start with Mr. Grime. [36:05] You heard accusations from some that the Calais decision guts the Voting Rights Act. [36:12] Is that accurate in your mind, and could you explain why you think it one way or another? [36:19] Absolutely not, Mr. Chairman. [36:22] Calais brings the Voting Rights Act back to the plain text of the law that was actually passed at the amendment in 1982. [36:30] To read the Voting Rights Act any other way is to either make it meaningless or make it unconstitutional and make it fail to be congruent and proportional to the 15th amendment. [36:48] I mean, the law itself says that we can't have proportional representation. [36:55] That can't be a goal. [36:56] It's not a constitutionally permissible goal. [36:59] That was part of the compromise. [37:01] And so all that's going to happen is we're going to be able to still meet the goals of Congress when that was passed. [37:08] Instead of strict, you know, you might say clear and convincing proof of intent, the standard that really that law brought from earlier case law, which is, I would say, an objectively, you know, objective evidence of intent, even though it may be circumstantial, that can still establish a Section 2 claim. [37:33] And if that conduct is still happening, you can still bring a Section 2 claim. [37:37] I mean, you could bring a racial gerrymandering claim. [37:40] You could bring a vote dilution claim under the 14th amendment directly or under the 15th amendment without using Section 2. [37:47] So there are all kinds of ways to combat discrimination. [37:52] What we're losing is sort of the rough proportionality that Section 2 had gone into. [37:57] And that's not losing anything. [37:58] In fact, what we're losing is the very thing that caused racial gerrymandering to occur. [38:02] Thanks. [38:03] Mr. Chamberlain, I want to ask you, I want to talk about California just for a minute, the California map, because you referenced the quote I had in my opening statement. [38:12] You know, there's evidence, I mean, quotes. [38:15] I mean, this is that the mapmakers have talked openly about specifically creating a district based on race. [38:23] Do you feel like now that's a vulnerable map? [38:27] Absolutely. [38:27] I mean, obviously, if you use race intentionally and you have statements like that, that triggers strict scrutiny. [38:35] And that's exactly the kind of thing that our Constitution says is odious. [38:39] We should not be just bean counting and putting people into districts based on what race they are. [38:45] And I'll move now to Illinois. [38:47] Because I've written this letter to Ramit Dillon. [38:50] I think these are the two most obvious examples, California, Illinois. [38:53] There are more. [38:54] There are more. [38:55] And I hope that they're very aggressive about this. [38:58] If we're serious about getting rid of, you know, creating, making race the reason why you're creating a particular map, which is inherently discriminatory, then DOJ has a very important role here. [39:10] In Illinois, the law requires consideration in the statute, requires consideration of crossover district, coalition districts, and influence districts based on race and language minority status. [39:25] Does that kind of law tell mapmakers to think about racial categories from the beginning? [39:31] Yeah, that's exactly what it does. [39:33] And, again, under Calais, that's certainly not going to be constitutional. [39:37] And it's also, when people say that the Voting Rights Act has been destroyed, not so. [39:41] The Voting Rights Act is still there. [39:42] 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. [39:48] Do you know, and I don't know this offhand, 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 mapmaking is going to look like? [39:58] Not off the top of my head, no, I don't know that. [40:01] Okay. [40:02] And I'll go back to Mr. Grime. [40:05] You sort of touched on this, and I think it's a very important point to make, that the law still prohibits discrimination, right, intentional discrimination based on race. [40:18] You can't inhibit somebody's ability to vote because of their race. [40:21] What the Calais decision stands for is that you can't have this racial sorting as the criteria for creating districts. [40:28] That's absolutely right. [40:29] And not only do we have the straight-up constitutional prohibition, but the Voting Rights Act still does some work because it gives you a way to circumstantially prove intentional discrimination. [40:42] And so there's many tools out there to combat discrimination. [40:48] Senator Walsh. [40:49] Thank you very much, and I apologize for having to go and leave shortly in order to cast my vote, and the chairman's going to have to do that now. [41:00] But I really appreciate all of the witnesses being here, and we all do. [41:04] First of all, Mr. Cox, I do want to ask you about how the court's decision has affected the electoral process in Louisiana. [41:14] Well, it's thrusted into chaos. [41:17] We, in the Calais case, sought to delay implementation of the Supreme Court's order because the election had already begun. [41:27] The state wanted to go ahead and run the election under the plan that was in existence, and chaos has ensued. [41:37] Yeah, I just want to interrupt to elaborate on your point. [41:40] What I understood is the election was supposed to happen on May 16, and there had already been mailed ballots to military and overseas voters, and as many as 100,000 citizens. [41:53] That's right. [41:53] And we, you know, as good lawyers do, as voting rights lawyers do, said, hey, we need to slow this down. [41:59] We need to reconsider and have a conversation at the district court level to consider what's going on with the Supreme Court decision. [42:07] But the state wanted to run the election and continue the election anyway, and it's caused a lot of confusion. [42:12] We have folks on the ground monitoring the election. [42:14] We have black voters on the rise, colleagues who are a group of lawyers and policy folks and organizers [42:20] who are educating voters about their right to vote, educating voters about opportunities to make sure they are registered to vote and can turn out. [42:29] And they're experiencing long lines. [42:30] They're experiencing a lot of confusion regarding offices and the like. [42:34] So it's thrust Louisiana into chaos, but it's also thrust, I think, a lot of redistricting, a lot of states into chaos, [42:43] because now there's a rush to redistrict in many of the states that are at issue here in the Deep South. [42:48] Thank you. [42:49] Mr. Grime, is there something that is just a little fishy about the legislature coming up with a map [42:56] where 40 percent of the people who in that state may be African-American end up where districts are designed [43:06] that have the effect of meaning there's no black representative? [43:14] Well, a couple of answers. [43:16] First, the black voting age population is much less than 40 percent. [43:21] And it looks to be about 31 percent. [43:23] But the other issue is... [43:25] 31 percent and zero. [43:25] I'm just asking a smell test, OK? [43:28] I think you have to know where the voters live. [43:32] I mean... [43:32] The people writing the maps know exactly where they live. [43:35] That's the whole point. [43:37] Well, the point, though, is that we're not assigning seats based on race. [43:42] We're actually drawing geographic districts. [43:44] All right, let me interrupt for a second. [43:44] But we are assigning seats. [43:46] You can dispute this if you want, by the writers of the legislation. [43:52] And by the way, this is true in Louisiana and it's true in California. [43:55] On the judgment of those legislators, the majority, about where they can get the most votes. [44:01] Isn't that right? [44:02] Well, I mean, that's right. [44:04] But that's our point, is that these are political considerations. [44:08] All right. [44:08] So what you're saying is you're full on board with partisan gerrymandering. [44:12] Well, the Supreme Court has made clear that that's not a decision to claim. [44:17] I am asking you. [44:18] Right. [44:18] You are on board. [44:19] You think it is OK in this country that partisanship be the exclusive judgment upon which a majority in a legislature will design the districts in that state. [44:30] What I'm OK with is the Constitution actually gives this power to state legislatures. [44:38] That's the Constitution. [44:39] I'm not asking you the lawyer question here. [44:41] I'm asking you the citizen question. [44:44] You know, a democracy, there's a tug of war. [44:47] 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 of Louisiana, [44:59] and those legislators on whatever it is, the Rules Committee, go in a back room, they go over the maps, they go over the computer projections, [45:09] and they have one goal, and that is to make certain that the maximum number of R's or D's get elected. [45:16] You're OK with that? [45:18] Well, as a citizen and as a lawyer, I understand that's actually the system that we have. [45:23] That's actually what the Constitution says. [45:25] And what's happened with that is we have a race to the bottom now. [45:32] And you heard me suggest to my chairman, who I think is a tremendous colleague, [45:37] that we ought to be having a battle over ideas as opposed to picking the voters that we want to vote for us. [45:43] You have a problem with that? [45:45] No, my problem is the Constitution already assigns that. [45:47] Do you have a problem with that? [45:48] Look, I'm asking, I am asking as a citizen, we are now in this total race to the bottom where legislators are doing, [45:59] we're going to be doing redistricting every two years. [46:03] We're going to be doing that. [46:04] In every state, if there's a change in the legislature, they're going to be doing the same thing. [46:08] Isn't it time to get rid of partisan redistricting and isn't it time, gerrymandering, [46:14] and isn't it time to stop the every two-year cycle of redistricting? [46:19] The genius of our country, of our Constitution, is that we allow the political branches to fail. [46:25] We allow them to sometimes hit the bottom and then they pay the price of the polls. [46:30] And that's what should happen. [46:32] The Supreme Court just interfered with the decision that this Congress made, [46:36] that they would focus on impact as opposed to, quote, intent. [46:39] There's nobody up here who can tell me what my intent is or Senator Hirono or Senator Lee. [46:45] I yield back. [46:47] Mr. Grime, I'd like to continue with you. [46:53] The U.S. Constitution assigns to the states the power to redistrict, correct? [46:59] That's correct. [46:59] And it assigns that to the legislatures of those states. [47:03] And in most states, including mine, the state Constitution also makes clear [47:08] that it is the state legislature that gets to make that decision. [47:12] That's right. [47:12] Somebody has to make it. [47:15] If it gets made to someone's political liking, it's going to get criticized from one end, [47:19] it's going to be somebody else. [47:21] But the Constitution says that they're who gets to make it. [47:24] Now, under the Equal Protection Clause of the 14th Amendment, [47:27] especially read in tandem with the 15th Amendment, [47:30] it's generally impermissible for the government to treat Americans differently based on their race. [47:36] Is that correct? [47:37] Absolutely. [47:38] Such that when government does so, the action is subject to strict scrutiny, [47:44] meaning it's got to be narrowly tailored in order to achieve a compelling state interest. [47:51] Now, in Students for Fair Admissions and in Calais, [47:55] the Supreme Court recognized that there are very, very few instances [48:00] in which strict scrutiny can be satisfied. [48:05] And that's for a lot of reasons. [48:08] We found that of all the bases on which government can treat people differently, [48:13] race is a particularly nasty one. [48:15] It's fraught with all kinds of historical peril. [48:18] We settled this after the Civil War and said, we're not going to do this. [48:24] So there are a limited number of circumstances in which it can be justified. [48:29] For example, avoiding actual or imminent risk to serious bodily harm or death [48:37] or remediating specific identified instances of past discrimination. [48:42] Is that right? [48:42] That's correct. [48:43] Those are the two. [48:44] SFFA makes clear those are the two examples. [48:47] Okay. [48:47] So for the other side to have prevailed in Calais, [48:50] wouldn't the Supreme Court have had to have added a new compelling interest beyond that? [48:58] Namely, one, you'd almost have to make it a compelling interest [49:01] to achieve a predetermined number of majority-minority districts. [49:07] Isn't that right? [49:08] That's right. [49:08] They'd have to more or less amend the Constitution to add that in. [49:11] Okay. [49:13] Now, a lot of people are fond of saying, well, they've got the Voting Rights Act [49:17] or they've discarded, they've cast into the dustbin, [49:21] they have judicially annulled the legislation that is Section 2 of the Voting Rights Act. [49:26] But that's not true, is it? [49:28] Rather, they were interpreting it in harmony with it as all statutes have to be. [49:34] You have to interpret them in a way that they are not incompatible [49:37] with other freestanding provisions of the Constitution. [49:39] Here we've got not just one, which is the Equal Protection Clause of the 14th Amendment, [49:43] but also the 15th Amendment's ban on intentional racial discrimination, right? [49:48] That's correct. [49:49] So, if the Supreme Court also noted that an inference of racial discrimination would be strong [49:59] if a state's redistricting algorithm, as the court put it, based on permissible non-racial factors, [50:08] quote, yielded numerous maps with districts in which the members of a minority group constituted a majority, [50:14] but the state did not provide a legitimate reason for rejecting those maps. [50:20] Isn't that right? [50:21] That's right. [50:21] Now, doesn't this suggest that the Voting Rights Act still has an important role to play in redistricting? [50:29] Absolutely it does. [50:30] I mean, it is a pathway for plaintiffs to show, to try to create an inference, [50:37] that there was intentional racial discrimination. [50:39] It is a step back from a requirement that they actually come in with direct proof of it. [50:46] But that was the intent of Congress in 1982, [50:49] and Justice Alito's opinion walked through the ways you can do it. [50:52] He also kind of lays out some pitfalls that you've got to disentangle politics from race [50:58] and several other things that courts have been doing over the years that completely muddled the inquiry. [51:05] Right. Now, when we talk about disentangling, there is nothing that I'm aware of, [51:09] I'm not aware of any provision in the United States Constitution that takes political considerations off the table. [51:15] There's nothing in there that says you cannot gerrymander according to this or that, [51:18] including political considerations. [51:20] What provision of the Constitution does that? [51:23] Well, there is none. [51:25] There is none. [51:25] But there are at least two that say you can't treat people differently on the basis of their race, [51:31] other than in pretty rare circumstances, where strict scrutiny is warranted. [51:38] So otherwise, doesn't the VRA fit where otherwise? [51:42] Wouldn't it become a back doorway for litigants to bring federal challenges to partisan gerrymanders in order to get their way? [51:50] And that's something that the Supreme Court has identified as a non-justiciable political question, has it not? [51:56] Well, that's right. [51:57] And in the Alexander case, just from a few years ago, the court raised that problem, [52:02] that litigants were trying to get around the partisan gerrymandering, that cause of action is gone. [52:09] They're trying to cast it as a racial issue. [52:11] So that's exactly right, Senator. [52:13] And in fact, in the Calais case, the Supreme Court made the observation that past lawsuits initiated under Section 2 of the Voting Rights Act [52:20] had involved situations that controlled for political preference, where, quote, [52:25] white voters in heavily Democratic areas often ranked black candidates last among Democrats. [52:31] Now, such situations suggested the voting patterns were being driven by racial as opposed to political motivations. [52:38] Is that right? [52:38] That's right. [52:39] I mean, those things did happen, and the Voting Rights Act, properly construed, would pick those up. [52:44] So, to conclude, the situation in Calais was entirely different, because there was nothing there to suggest that white and black Republicans [52:58] or white and black Democrats had different voting patterns in Louisiana. [53:04] There was no indication that a black Republican or Democrat had any less chance than the other members of his or her party [53:11] to elect a preferred candidate. [53:13] Is that right? [53:14] That's right. [53:15] In the Robinson case that preceded our case, there was no proof put in, and we challenged him to bring it in the Calais case, and they never did. [53:24] Thank you, Mr. Grum. [53:25] I see my time's expired. [53:26] Thank you, Mr. Chairman. [53:28] Senator Hirono. [53:30] Thank you, Mr. Chairman. [53:31] There's absolutely no question that racial discrimination existed in our country, and in many places, people would argue that it still does. [53:40] And so we had all kinds of ways to keep black people from voting. [53:44] We had poll taxes, we had literacy tests, we had, I think some places even required them to count how many jelly beans were in a jar. [53:55] All kinds of ways to keep black people from voting. [53:58] This happened. [54:00] I don't think anybody can deny that that was going on. [54:03] And as far as I'm concerned, there is a pattern now of voter suppression going on in our country right now. [54:11] And the Calais decision just plays into that by pretty much gutting the Voting Rights Act, which, by the way, was reaffirmed many times in a bipartisan way in acknowledging that this kind of racial discrimination occurred. [54:24] And that, as a democratic country, where everybody has an equal vote, that's not tolerable. [54:32] But suddenly, it's a-okay. [54:34] Just because the Supreme Court says so. [54:36] No, it's not the entire Supreme Court. [54:38] It's the 63 majority. [54:39] Which I consider to be basically an out-of-control Supreme Court majority where there is a pattern of this kind of decisions out of this court. [54:50] So just because this court says so doesn't mean I agree with them. [54:54] So meanwhile, there is voter suppression going on. [54:57] You have an attorney general who sued at least 29 states to get these states to turn over their voter rolls. [55:04] Why? What does the Department of Justice, what does the executive branch want to do with all this voter information? [55:11] Up to no good, I would say. [55:14] There's this huge push to pass the SAVE Act. [55:18] It's more SAVE Trump Act. [55:20] And what does that act do? [55:21] It would require millions and millions, all of us who are registered to vote, [55:26] suddenly we will have to show proof of citizenship, either through a birth certificate or a passport. [55:33] Millions of people don't have either. [55:37] Married people who take their partner's name will not have a name that matches their birth certificate. [55:43] So what are they going to do? [55:44] There are going to be millions of people who are not even going to register to vote. [55:48] And you think Trump doesn't know that? [55:49] Of course he does. [55:50] That's why he wants the SAVE Act to be enacted. [55:53] That's why the Republicans would like to see the SAVE Act enacted. [55:57] Because they know that millions of people will be literally disenfranchised by not even being able to allow to vote. [56:04] And then with this regime, once you do vote, they will challenge your vote as they did in the last elections. [56:12] So voter suppression is going on. [56:13] It's very reminiscent to the kind of stuff that was going on that the Voting Rights Act was intended to address, to fix. [56:23] And now you have a Supreme Court that says, oh, never mind all of that. [56:27] Never mind all of that history. [56:28] And over three cases, they succeeded in gutting the Voting Rights Act. [56:35] And don't tell me that the provisions of the Voting Rights Act still exist in a way that is pretty much unenforceable because the racial gerrymandering is going to be okay unless the legislative body that does the gerrymandering says, oh, by the way, we intend to racially discriminate. [56:55] Are you crazy? [56:55] You think that state legislators are going to be that overt about it? [57:00] Of course not. [57:01] So you have a Voting Rights Act that you claim is still intact. [57:06] Please, please give me a break. [57:09] I have a question for Mr. Cox. [57:11] Last weekend, thousands of people, and apparently you were among them, gathered to protest the Supreme Court's gutting of the Voting Rights Act. [57:19] The central locations for these protests were Montgomery and Selma, Alabama, and both significant sites in American civil rights history. [57:27] Mr. Cox, can you put this current moment into historical context for us? [57:31] For instance, why is this moment reminiscent of when the last Congressman John Lewis, who many of us consider a friend and hero, led over 600 peaceful protesters across the Edmund Pettus Bridge and Selma, Alabama? [57:46] Thank you, Senator Hirono, for that question. [57:50] I think it's reminiscent and reflects the fact that the Voting Rights Act was not given to us. [57:56] It was not bestowed on us. [57:57] It really came from the people. [57:59] And the joke I'm sort of making is that Justice O'Connor used to say there were more lawyers in D.C. than people. [58:06] I think we sometimes feel that way in D.C. or on the Hill. [58:11] Lawyers are at the center of the universe, and that's just not true. [58:13] If we're going to climb out of this destruction of the Voting Rights Act, the penultimate destruction of our democracy, it's going to require the people. [58:22] And quite frankly, we're being gaslit. [58:24] We have an extreme court. [58:26] We have allies of the Supreme Court and allies of the Calais case saying discrimination is over. [58:31] Obviously not true. [58:32] We have folks on the ground showing and discussing with us that law enforcement are at the polling places. [58:38] We have folks not only confused but being discriminated against right now. [58:43] And I have to say that to, you know, not to ignore the fact that the people are demanding that Congress respond, [58:52] that Congress restore the effects test that has been gutted and taken out by Calais would be a mistake. [58:59] Because folks understand and know what is happening outside in the real world. [59:04] And they know, particularly black voters know, that they aren't going to return to the 1800s. [59:10] And what we all experienced, or our ancestors experienced, that led us to the Voting Rights Act in the first place. [59:19] There is so much more to say, but I fear my time is up. [59:23] Thank you. [59:23] Thank you. [59:24] I would point out that my colleague from Hawaii questions whether or not people would be overtly discriminatory in the words that they would say. [59:33] I will just point out to the California mapmaker who said the number one thing he was focused on was creating a racially gerrymandered district. [59:40] So people do say it. [59:42] Senator Cruz. [59:44] Thank you, Mr. Chairman. [59:45] Just a moment ago, our colleague, Senator Hirono, said there's a lot more to say. [59:49] And indeed, she's right. [59:51] And in fact, I want to go back to her comments. [59:54] She began by saying we have a long history of racial discrimination in this country. [59:58] That's undoubtedly correct. [1:00:00] And then she said, quote, we had poll taxes. [1:00:04] We had literacy tests. [1:00:06] We even had tests of how many jelly beans are in a jar. [1:00:09] Mr. Chamberlain, when Senator Hirono says we had poll taxes, I want to ask you who we is. [1:00:16] And in particular, what party was it that implemented poll taxes in the South? [1:00:22] I mean, I don't want to necessarily speak in every single case, but I'm pretty confident it was mostly the Democrats. [1:00:27] And what party was it that put literacy tests in place in the South? [1:00:31] Same answer. [1:00:31] Mostly the Democrats. [1:00:32] And what party was it that had tests like how many jelly beans are in a bottle? [1:00:36] The Democrats. [1:00:37] Tell me, what party were the founders of the Ku Klux Klan from? [1:00:43] I'm pretty sure that was the Democrats. [1:00:45] Indeed. [1:00:46] In fact, Nathan Bedford Forrest, the founder of the Klan, was a delegate to the 1860 Democrat National Convention. [1:00:53] What party wrote the Jim Crow laws in the South? [1:00:56] The Democrats. [1:00:58] And so on this side of the aisle were members of the Republican Party. [1:01:03] Who was the first Republican president? [1:01:05] Abraham Lincoln. [1:01:06] The Republican Party was literally founded to oppose slavery. [1:01:11] We came into existence because slavery was a grotesque evil, and it was President Lincoln, the first Republican president, who signed the Emancipation Proclamation, who won the Civil War, and that resulted in the freeing of the slaves and the passage of the 13th, 14th, and 15th Amendments. [1:01:32] By the way, fast forward to the civil rights era. [1:01:36] Bull Connor, one of the most noxiously racist politicians. [1:01:41] What party was he from? [1:01:42] He was a Democrat. [1:01:43] The Democrats, for the entire history of their party, have been a party based on racial discrimination. [1:01:54] They affirmatively embrace it. [1:01:56] They support it. [1:01:59] Let me ask you, Mr. Grime, is discriminating based on race consistent with the United States Constitution? [1:02:06] No. [1:02:08] What does the 14th Amendment say about discrimination based on race? [1:02:13] It's prohibited. [1:02:14] What does the 15th Amendment say about discriminating based on race and, in particular, drawing congressional lines and explicitly discriminating based on race? [1:02:24] It's prohibited. [1:02:25] Now, the Democrats are fond of telling this story that is, and I wish I could find a kinder way to say it, a flat-out lie, that without discriminating based on race, that no African Americans will be elected and no Hispanics will be elected. [1:02:48] Indeed, there was one fellow online who was a vocal left-wing spokesperson who tweeted out, [1:02:55] Well, if I'm advising anybody to run for president, they sure as hell better have a solution to how you make sure that it's not another hundred years before another black person can represent South Carolina. [1:03:08] So that's a typical Democrat statement, that we cannot elect a black person in South Carolina without discriminating based on race. [1:03:17] I want to ask you, Mr. Chamberlain, who is the junior senator from South Carolina right now? [1:03:24] That would be Tim Scott. [1:03:25] And, all right, I'll tell you what I said online. [1:03:28] I said, hey, Grock, who is Tim Scott and why do Democrats think he isn't black? [1:03:34] And, by the way, was Tim Scott elected because of a gerrymandered district drawn only to elect an African American? [1:03:42] No, he won statewide. [1:03:44] He won statewide. [1:03:45] By the way, the Democrat position is you can only elect African Americans with a gerrymandered district. [1:03:54] I will point out Burgess Owens, an African American, is elected in the majority white district in the state of Utah. [1:03:59] He's a Republican. [1:04:00] Byron Donalds, another African American, is elected in the majority white district in Florida. [1:04:05] He is a Republican. [1:04:06] John James, another African American, is elected in the majority white district in Michigan. [1:04:11] He is a Republican. [1:04:12] And my own congressman, Wesley Hunt, who represents me in the House of Representatives, [1:04:17] he is elected in the majority white district. [1:04:20] He is a Republican. [1:04:21] And yet, in the Democrats' world, you're not black if you're not a liberal Democrat. [1:04:28] There is an arrogance to African American voters. [1:04:32] By the way, they also have that same arrogance to Hispanic voters. [1:04:36] They say you're not Hispanic if you're not a liberal Democrat. [1:04:40] Well, I'll tell you, I am proud to be the first Hispanic ever elected to represent the state of Texas in the United States Senate. [1:04:48] And, Mr. Chamberlain, in my election in Texas, was I elected in a gerrymandered district that could only elect an Hispanic? [1:04:56] No, you were elected statewide. [1:04:57] Discrimination based on race is wrong. [1:05:04] Final question. [1:05:05] The Democrats are now clutching their pearls that seats drawn to elect liberal Democrats in the South are going to go away. [1:05:13] You may get black Republicans instead. [1:05:14] Indeed, in Tennessee, they're freaking out that a liberal white guy who's a Democrat is likely going to lose his seat to an African American woman who's a Republican. [1:05:23] And they say that's horrible racial oppression. [1:05:29] My final question is this. [1:05:30] If you look nationwide, which party has egregiously abused gerrymandering for decades? [1:05:39] Both parties are guilty of it. [1:05:41] But who has been the worst offender? [1:05:43] And in particular, take New England, take Massachusetts, take Connecticut, take Rhode Island, take Maine, take Vermont, take New Hampshire. [1:05:51] How many Republicans are elected from all of New England in the House of Representatives? [1:05:56] I think the answer to that is zero. [1:05:57] Zero. They've drawn every district in a naked gerrymander, and yet they're very upset that their illegal pursuit of power has now been stopped by the Supreme Court that is enforcing the Constitution and prohibiting the racial gerrymandering and discrimination their party is built on. [1:06:14] Senator Vidya. [1:06:15] Senator Vidya. [1:06:16] Senator Vidya, I feel personally aggrieved to sit here and to be lectured by my colleague from Texas. [1:06:26] And this reminds me of the time when he was first elected to the Senate, and the Judiciary Committee had a hearing on gun safety. [1:06:35] And he felt a need to lecture Dianne Feinstein, who was a leader on gun safety legislation. [1:06:42] And he took that opportunity to lecture Dianne Feinstein about gun safety and her leadership on the issue. [1:06:48] And she said to him something along the lines of, I did not sit here on this committee for however many years she did, only to be lectured by you. [1:06:58] And that is how I feel. [1:06:59] So why don't you just stop lecturing the rest of us? [1:07:02] Just because you think you are the smartest person in the world doesn't mean the rest of us agree to that. [1:07:07] Okay, thank you. [1:07:08] Senator Hirono. [1:07:09] I knew Dianne Feinstein. [1:07:11] I served with Dianne Feinstein, and you're not Dianne Feinstein. [1:07:14] All right, Senator Padilla. [1:07:15] Oh, we're done. [1:07:16] Senator Padilla. [1:07:16] Thank you so much, Mr. Chairman. [1:07:19] Yes. [1:07:20] Thank you, Mr. Chairman. [1:07:22] First, two quick points before I get to a couple questions I want to ask. [1:07:27] Number one, I appreciate a little history reminder of the two major political parties in the United States. [1:07:36] All I'll say to that is how far each of them have come from decades ago to today. [1:07:41] Second, since my home state of California has been referenced repeatedly in this current redistricting discussion, [1:07:52] I will call out an important distinction between what's transpired in California this last year [1:07:58] and how redistricting has been going and is going to go in other states. [1:08:03] In all other states, it's been the legislature and the governor imposing new maps on the people of their state. [1:08:14] In the state of California, it was a map put before the voters of California to consider. [1:08:18] A question whether or not to amend the California Constitution, which had previously created an independent commission, you're correct, [1:08:26] but it was the people of California who voted to adopt a new map for this cycle only and approved the map for their consideration. [1:08:36] So it was the will of the voters, not an imposition of the governor or the legislature or any other state leaders. [1:08:44] Now, that being said, let's get back to the Kalei decision. [1:08:48] There's many striking things about it, not least of which is the discussion of congressional intent. [1:08:54] Last I checked, Congress takes this rather seriously. [1:08:56] In 1965, Congress enacted Section 2 of the Voting Rights Act, which prohibited any election practice that denied or abridged the right of any citizen to vote on account of race or color. [1:09:08] I think the historical facts are clear on that. [1:09:11] When the Supreme Court then interpreted Section 2 to require proof of intentional discrimination, Congress responded pretty unambiguously. [1:09:22] It revised Section 2 to prohibit any election practice that resulted in the denial or abridgment of a citizen's right to vote on account of race or color. [1:09:34] There was no real question as to what that language meant. [1:09:37] And as this committee, the Senate Judiciary Committee explained, quote, the amendment to the language of Section 2 is designed to make clear that plaintiffs need not prove a discriminatory purpose in the adoption or maintenance of the challenge system or practice in order to establish a violation, end quote. [1:09:58] According to the majority in Calais, however, Section 2 requires presenting evidence that supports a strong inference that the state intentionally drew its districts to afford minority voters less opportunity because of their race. [1:10:15] Question for Mr. Cox. [1:10:18] Anything what I just said wrong? [1:10:21] Number one. [1:10:22] Number two. [1:10:23] Do you think the court's decision in Calais is consistent with the history of Section 2? [1:10:27] You're absolutely correct. [1:10:29] And no, it is inconsistent with the history of Section 2. [1:10:32] And what has not been discussed enough or at all is what Section 2 before Calais required of individuals or organizations bringing lawsuits on behalf of Black or Latino or API members challenging redistricting or challenging other kinds of voting schemes that discriminated. [1:10:54] There was a three-part test to get into court to be able to make your case. [1:10:57] The first Jingles factor was can you draw a reasonably compact majority black district, for example. [1:11:03] What the Supreme Court has done now is sprinkled partisanship throughout those Jingles standards, throughout the Thornburg versus Jingles majority opinion. [1:11:12] So, no longer is Jingles 1 free of partisanship. [1:11:18] You have to draw a plan that satisfies a state's partisan ends in order to get through the door to prove, oddly enough, that the scheme that's being developed discriminates based on race. [1:11:30] Number two. [1:11:31] And number three. [1:11:33] Racially polarized voting. [1:11:34] White block voting. [1:11:35] You have to account for partisanship once again. [1:11:37] Is it perhaps not race, but partisanship that is driving these kinds of disparities? [1:11:42] And then finally, we used to be able to say totality of the circumstances, which involves racially polarized voting, but also involves a deep examination of a history of discrimination that leads to exclusion down the line, no longer allowed by this court. [1:11:57] You have to show not only intent, but current examples of discrimination in order to be able to prove your Section 2 case. [1:12:04] So, it's not as benign as we are being led to believe it is. [1:12:08] It is a complete gutting of Supreme Court precedent and a complete gutting of this Congress's intent in 1982 to add an effects test that was robust. [1:12:19] Mr. Chai, I know my time is just about up, if I may. [1:12:21] Just two quick questions. [1:12:23] Number one, Mr. Cox, briefly, briefly, briefly, as in 20 seconds. [1:12:28] Can you describe, you know, my number, estimate, the number of Section 2 cases that were successfully brought in the last two decades and what you anticipate, how many would be successful post-Colet? [1:12:41] I don't have an exact number of the number of successful lawsuits, but I can tell you the impact on bringing a Section 2 case will be profound under this standard. [1:12:53] It will essentially eviscerate the possibility to bring a Section 2 case under this regime. [1:12:57] That's not to say we won't challenge redistricting plans or attempts to undermine majority-minority districts that serve— [1:13:03] That has gone significantly higher since 1982, public available information shows that 466 cases have been brought, 43 percent were successful. [1:13:14] Last question, should this committee, should the Senate, should Congress be concerned about the Supreme Court's disregard for congressional intent? [1:13:25] Yes. As Justice Kagan said in her dissent, Section 2 of the 14th Amendment allows you all or requires you all to enforce the civil rights laws, such as the Voting Rights Act. [1:13:36] And what the Supreme Court did was step out of bounds and seize that power from you. [1:13:41] So absolutely, you need to push back in the same way you did with the Section 2, 1982 amendments with Mobile v. Bolden and reassert yourself. [1:13:49] Let's go. Thank you, Mr. Chair. [1:13:51] Thank you. Senator Kennedy. [1:13:52] Thank you, Mr. Chairman. [1:13:56] Mr. Grime, am I saying your name right? [1:14:09] You are, Senator. [1:14:10] You argued the Calais case? [1:14:13] I did. [1:14:14] Okay. I'm going to tell you my understanding of the case. [1:14:20] And then, Mr. Cox, you can—I'm going to ask you to tell me if Mr. Grime got it right. [1:14:26] Mr. Chamberlain, you can chime in if you would like. [1:14:30] Are you familiar, Mr. Grime, with the students for fair admissions case? [1:14:36] I am. [1:14:37] Okay. That's the case recently where the Supreme Court said you can't use race in college admissions. [1:14:44] Now, here's what I heard the Supreme Court say in that case. [1:14:50] I heard the Supreme Court say, look, colleges, we're not going to get into the admissions business. [1:14:57] That's your business. [1:14:58] We're just telling you you can't use race as a factor to admit anybody. [1:15:05] Is that your understanding of the case? [1:15:06] Basically, yes. And they did a whole 14th Amendment. [1:15:10] Don't try to muddy the water to make it look deep, guys. [1:15:14] I know you're all smart. I'm just trying to get to the bottom line. [1:15:18] Am I wrong or right? [1:15:19] You're right. [1:15:20] Okay. Now, the way I read Calais is that the Supreme Court is saying, look, these, first of all, these are political questions. [1:15:33] And we're not going to tell the states how to draw congressional districts. [1:15:40] We don't want to be in that business. [1:15:42] That's a political question. [1:15:44] We're just saying you can't use race as a factor. [1:15:49] Is that what they did in Calais or am I misunderstanding it? [1:15:52] That's basically it. You can use it to remedy, you know, past discrimination that you've proven. [1:15:59] But that wasn't the case in the Calais case. [1:16:03] The other side didn't prove it. [1:16:04] Well, but once again, you're muddy in that water, man. [1:16:12] Did the court or did it not say that you can't use race to draw a congressional district? [1:16:19] In most cases, you can't unless the state, the person defending the map, shows that they had to use it [1:16:28] because there was a showing of immediately past intentional discrimination that they had to use race to unwind. [1:16:36] Okay. Tell me whether he got it right, Mr. Cox. [1:16:39] Senator, quite frankly, the defense of the Calais case is such a tortured exercise. [1:16:45] Mr. Cox, I don't want to hear you. [1:16:46] So I'm going to tell you how SFFA applies to Calais. [1:16:51] Did he get it right or did he get it right? [1:16:53] So under application of, to discuss Calais, you have to really discuss what happened in the case that created [1:17:02] the district that was challenged in Calais, that was Robinson. [1:17:05] The court required the state of Louisiana to redraw its plans pursuant to its findings of a Section 2 violation. [1:17:13] That's what justified the creation of the plan. [1:17:15] I don't want to have a fight. Can you just tell me, and you're smart, and I don't want to make this more complicated than it is. [1:17:22] Tell me what he got right or wrong. [1:17:24] I'm telling you, what he got wrong was ignoring- [1:17:27] No, you're speaking like a lawyer, okay? [1:17:29] And I'm tired of- I've listened to you gentlemen, okay? [1:17:32] Let's just get down to it. [1:17:35] Mr. Chamberlain, tell me what Mr. Graham got right or wrong. [1:17:39] He got it all right. You think I'm really going to tell the guy who argued in one Calais that he didn't understand what he was arguing? [1:17:44] Okay. [1:17:46] Sorry, no, I'm totally respectful, but obviously, I think he's got a good handle on it. [1:17:50] I don't- I understand that, Mr. Cox, I don't mean to be rude, the importance of precedent and all that, but didn't the Supreme Court say, except in very narrow circumstances, [1:18:00] you just can't use race to help a person, and you can't use race to harm a person, and that includes in drawn congressional districts. [1:18:10] In answering that question, I'm going to tell you that the Robinson Court, which gave rise to the district that was challenged in Calais, [1:18:18] said that there was a violation of the Voting Rights Act, that it was required to draw a district or draw a redistricting plan that satisfied the Voting Rights Act, [1:18:28] that allowed African Americans to elect candidates of choice. [1:18:32] You don't want to answer my question, do you, Mr. Cox? [1:18:34] I'm answering your question. [1:18:35] No, you're not. [1:18:36] Maybe an answer that you don't like and my colleagues don't. [1:18:38] No, you're not. [1:18:38] But I'm answering your question. [1:18:39] You're not. You're giving us another lecture, and this is not a common law class. [1:18:44] Tell me, in simple terms, is that not what the court said? [1:18:49] The court said a lot of things that were inaccurate. [1:18:51] So that is, the court said you can't use race at all in drawing plans. [1:18:56] We disagree with that. [1:18:57] But what the court really did was say that you can prove race, you can prove there's intentional discrimination, [1:19:03] which is in violation of this Congress's intent. [1:19:06] It also sprinkled partisanship as a defense for any challenge under Section 2. [1:19:13] All right, well, I'm about out of time. [1:19:14] I can see no disrespect, Mr. Cox, but you're not answering any of my questions. [1:19:20] And I know you're disappointed in the decision, but let me put it another way. [1:19:26] Do you think race should be used to help a person? [1:19:31] I don't understand that question. [1:19:32] Race should be used to help a person? [1:19:33] Sure you do. [1:19:33] Do you think race should be used to help a person? [1:19:37] I believe that if there is a racial violation of the law, race discrimination, [1:19:44] I believe a remedy that's race conscious can be required, yes. [1:19:48] Do you think race should be used to harm a person? [1:19:51] I don't really understand what that question is. [1:19:54] No, I didn't think you would. [1:19:56] Mr. Chamberlain, do you think race, it's fair in America to use race to help a person at the expense of other races? [1:20:04] No. [1:20:06] Do you think it's fair in America to use race to hurt another person? [1:20:13] No. [1:20:14] How about you, Mr. Grime? [1:20:16] Absolutely not. [1:20:17] Race should not be used to help or hurt an individual. [1:20:20] And no disrespect to Mr. Cox, he's very bright, I can see that. [1:20:25] And I've been where you've been. [1:20:27] You know, when you get in front of a court of appeal and you're losing, you know, you want to kind of obfuscate. [1:20:34] I get it. [1:20:35] But that, to me, is what the court's saying here in all these cases. [1:20:39] We're not going to try to run your business, not in the college admissions, not in drawn districts. [1:20:46] But you can't use race, period. [1:20:49] End of discussion. [1:20:51] And I think that's what the Constitution says and what most Americans support. [1:20:56] I know you're disappointed, Mr. Cox. [1:20:58] I'm not disappointed. [1:20:59] I'm outraged. [1:20:59] But that's what the Constitution says. [1:21:02] Well, can I add one more thing that's not quite exactly addressing what you asked? [1:21:07] I do think there's a role for a co-equal branch of government, Congress, to make its own determination regarding how it wants its laws enforced. [1:21:16] And I would urge this Congress to reconsider Calais in that light. [1:21:21] Yeah, but you and I are both aware that the United States Supreme Court has full authority to pass on the constitutionality of a statute. [1:21:29] Come on, you know that. [1:21:32] I'm sorry, Mr. Chairman. [1:21:34] If Mobile v. Bolden is any example of what can and can't happen, this Congress can take a look at Calais and say, actually, you got it wrong. [1:21:44] And you actually didn't interpret what we intended in 1982 correctly. [1:21:48] The problem with your argument is I don't think race should be used to help a person because of his race. [1:21:55] And I don't think race should be used to harm a person because of his or her race. [1:22:01] And I think that's what most Americans believe. [1:22:04] And if you don't believe the opposite, and you clearly do, this is America. [1:22:09] You can believe what you want. [1:22:10] But the Supreme Court is deciding these cases. [1:22:12] I hear you. [1:22:13] It's saying race is off the table. [1:22:14] I hear you. [1:22:15] And I believe as a civil rights lawyer that if you find a violation based on race, you need to craft a remedy that addresses that. [1:22:22] Senator Whitehouse. [1:22:23] Senator Whitehouse. [1:22:23] I'm sorry. [1:22:25] I'm sorry, Eric. [1:22:26] Mr. Cox, what was Red Map? [1:22:32] What was Red Map? [1:22:35] Do you remember? [1:22:36] I don't, Senator. [1:22:37] I'm sorry. [1:22:38] Red Map was the Republican plan to redistrict states to increase the Republican majority in Congress, even though it put the state's congressional delegation way out of whack with actual voter outcomes in the states. [1:23:05] So a state that was basically a 50-50 tie or darn close would produce a congressional delegation that was maybe two to one or three to one Republican. [1:23:23] And when they did that, there was an obvious response. [1:23:31] A lot of federal courts had actually dealt with that successfully. [1:23:36] And then along came the United States Supreme Court with the Rucho decision, and despite the fact that federal courts had successfully addressed that kind of deliberate, purposeful, partisan gerrymandering in which the politicians try to pick their voters rather than voters picking their politicians, [1:23:55] and despite the huge disparity between where the popular vote came down in that state and where the delegation landed, they said, oh, no, we can't do a single thing about this. [1:24:09] I think that was factually wrong because courts had been doing things about that that were very reasonable. [1:24:15] Things like we'll give deference to a bipartisan redistricting commission, and we won't necessarily when we have testimony about the intent of the experts brought in by one party to make sure that that one party dominated the delegation in that state. [1:24:34] The result of that was that Republicans controlled the United States Congress in a year in which Republicans had gotten fewer votes for the United States Congress than Democrats. [1:24:46] But the gerrymandering worked, the red map trickery worked, and the Rucho decision was based on what I think is a completely false factual premise. [1:25:00] Shelby County, I've argued before, was based on a completely false factual premise, that we didn't have anything to worry about, that Southern legislatures weren't going to try to depress minority voting, [1:25:12] that we didn't have anything to worry about, that we didn't have anything to worry about, that we didn't have to worry about what then ensued probably a hundred different laws across Republican-controlled legislatures. [1:25:19] You then had the Citizens United decision come in and give enormous advantage to big donors to be able to spend unlimited money in elections, and do so anonymously was the interesting sidebar of all of that. [1:25:38] And as I go through all of that, and as I go through all of these different decisions, the one thing that seems to come up constantly is that if you look at the result of the decision by the United States Supreme Court, the result was advantage to the Republican Party. [1:25:56] To me, it's a practically perfect through line, and it happens over and over again, and it can be very frustrating. [1:26:08] I did a brief with John McCain, so it was a bipartisan brief, telling the Supreme Court after the Citizens United decision that what they had done was factually wrong. [1:26:20] What they had done by saying that all this unlimited funding was going to be transparent, that we'd know who the donors were, flatly disproven by billions in dark money, [1:26:31] that it was going to be independent of campaigns, study after study, report after report shows that it was not independent at all. [1:26:39] You could never prove in a court of law that proposition. [1:26:42] They had just invented it in their private deliberations at the end of the judicial process rather than have it go through proper judicial scrutiny. [1:26:50] And it was indisputably wrong. It was indisputably wrong that the transparency predicate of Citizens United was false. [1:26:59] They had just made it up, and events proved it to be false. [1:27:02] You could probably tell it was false at the time, those of us who argued in that case, as Amici did. [1:27:08] But that's where we were. [1:27:11] So I think there's a narrative here that we need to explore, which is not the question of whether the Supreme Court demands zero attention to race in decisions, [1:27:24] even when hostile attention to race is present in state legislators. [1:27:30] To me, the question is, do we have a Supreme Court that is willing to make a decision in the political arena that does not help the Republican side in the election? [1:27:40] And to me, at this point, the record is perfect. [1:27:44] And in a world in which you can prove bias and discrimination with pattern evidence, [1:27:49] it seems to me the pattern evidence about this court is pretty damned obvious. [1:27:53] So thank you for my time, Mr. Chairman. [1:27:55] Thank you. And I may be being overly kind with my allowing people to go over. [1:28:00] So there's been a request to have a second round, and I'm going to open that up. [1:28:04] If there's anybody that wants to go another five minutes, we'll open that up. [1:28:07] Senator Lee. [1:28:08] Thank you, Mr. Chairman. [1:28:09] I appreciate the excessive kindness. [1:28:13] Mr. Chamberlain, the prior misreadings of Section Two of the Voting Rights Act tend to push states toward race conscious? [1:28:23] Yes. [1:28:24] Map making? [1:28:25] Yes, that's right. [1:28:26] And when a state sets out to create a majority minority district, it necessarily, almost unavoidably, [1:28:34] it treats voters as sort of members of presumptive racial blocks rather than as individualized citizens. [1:28:42] Is that right? [1:28:43] That's exactly right. [1:28:44] Isn't that precisely what the Equal Protection Clause was designed to prevent? [1:28:51] Exactly. [1:28:52] That's the kind of thing that immediately triggers strict scrutiny. [1:28:54] And doesn't that also result in, or at least entail, a type of racial stereotyping that's really offensive? [1:29:03] It sort of, I don't know, assumes that all people of a particular race are likely to share the same political views. [1:29:13] Yeah, it's offensive to people of all races in the sense that it suggests that everyone would only vote for people of their own race. [1:29:20] So wouldn't a more defensible approach under the Constitution be one in which legislative districts bring together citizens with diverse backgrounds, views, and communities of interest rather than sorting them by race? [1:29:35] Yes. [1:29:36] Or another way of putting it is the Constitution gives a pretty broad grant of authority, let's say, to state legislatures to make this decision. [1:29:48] They are free to make it how they deem appropriate, but there are some things that are prohibited, and making them along racial lines is one of those prohibited factors. [1:29:57] If they want to make the rest of them according to other non-prohibited factors, like whether somebody's a Yankee fan or a Red Sox fan, I mean, that'd be weird, but there's nothing in the Constitution that would stop that. [1:30:08] There is, however, something in the Constitution, two things in the Constitution, that prohibit that with racial gerrymanding, right? [1:30:16] That's exactly right. [1:30:17] You know, it seems like the gerrymandered, the racially gerrymandered maps in Illinois and California potentially raise very serious constitutional questions, particularly in light of Calais as intentional racial gerrymanders. [1:30:33] Now, am I correct in my understanding that in California the drafter of the new congressional map admitted that, quote, [1:30:42] the number one thing that he first started thinking about when drawing the map was, quote, drawing a replacement Latino majority-minority district in the middle of Los Angeles? [1:30:52] And didn't he also boast that the new map would, quote, increase Latino voting power, increase Asian-American voting power, and add one more Latino-influenced district? [1:31:04] Those are all quotes. [1:31:05] Yes, he said all those things. [1:31:07] All of those things. [1:31:08] All of those things. [1:31:09] How do you reconcile those things with the 14th and 15th Amendments and the obvious racial motive here? [1:31:20] Is there any other way to read that other than that this is a racial motive, which the Calais majority clearly said would be impermissible under the VRA, under the 15th Amendment, and under the 14th Amendment? [1:31:32] Yeah, that's overt, intentional racial discrimination, triggers strict scrutiny, and there's no way it would survive it. [1:31:39] And wouldn't the constitutional problem be the same, regardless of which racial group the state purports to be helping, even as it's engaging in this type of unconstitutional racial discrimination? [1:31:52] Yes, it would. [1:31:53] So what we're being asked to do here is indulge the assumption that because the states that want to engage in racial gerrymandering claim that their motives are pure, [1:32:04] that those are somehow constitutionally permissible? [1:32:09] Yes. [1:32:11] Has there ever been an era in the darkest depths of Jim Crow policies embraced by the Democratic Party and not the Republican Party, [1:32:20] even under those circumstances? [1:32:22] They never said, yeah, we're backing racial discrimination because we're bad people and we want to be evil. [1:32:30] They always claimed that their motives were pure, did they not? [1:32:32] That's right. [1:32:33] And in fact, the defendants in Brown v. Board of Education continued to insist, [1:32:38] don't worry, yeah, it's racial segregation, but don't worry because our motives are pure. [1:32:44] We're telling you this is good for education. [1:32:46] People will get a better education if we engage in racial discrimination. [1:32:49] And what was the Supreme Court's response to that? [1:32:51] Too bad, it's unconstitutional. [1:32:53] Is this any different than that? [1:32:56] They're telling us their motives are pure. [1:32:58] The Supreme Court says, no, 14th and 15th Amendments don't care if your motives are pure, [1:33:02] subject to only very rare circumstances, as will justify, as will help them overcome strict scrutiny. [1:33:09] You cannot do that. [1:33:10] We settled this at the end of the Civil War. [1:33:12] That's right. [1:33:13] Thank you. [1:33:14] Thank you, Mr. Chairman. [1:33:15] Thank you. [1:33:16] That will conclude the hearing. [1:33:19] Written questions for the record can be submitted until Tuesday, May 26th, 2026 at 5pm. [1:33:24] We ask the witnesses to submit their responses within two weeks. [1:33:27] So by Tuesday, June 9th, 2026 by 5pm. [1:33:30] I want to thank all the witnesses for their time and their testimony today. [1:33:33] The hearing is adjourned.