Senate Judiciary subcommittee holds hearing on Supreme Court’s gerrymandering ruling

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