Courthouse Steps Decision: Allen v. Milligan

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Sam Fendler:  Hello everyone, and welcome to this Federal Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host a Courthouse Steps Decision webinar on Allen v. Milligan. Our guest today is Professor Michael R. Dimino.

Professor Dimino is a Professor of Law at Widener University Commonwealth Law School and an expert on election law. He is a summa cum laude graduate of SUNY Buffalo, a cum laude graduate of the Harvard Law School, and a former Fulbright Scholar. His teaching and writings focus on constitutional law, federal courts, statutory interpretation, and of course, election law.

Perhaps most importantly, Professor Dimino serves as chairman of The Federalist Society's Free Speech and Election Law Practice Group, where I have the good fortune to work with him on a regular basis. If you'd like to learn more about Professor Dimino, you can find his full bio on our website, fedsoc.org.

After Professor Dimino gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker, not The Federalist Society. With that, Mike, thank you very much for joining us today, sir, and the floor is yours.

Prof. Michael Dimino:  Thank you very much, Sam, and thanks also to The Federalist Society and everyone in attendance for spending part of today with us. Allen v. Milligan was a decision that was a bit of a surprise to a lot of people because the redistricting that was put in place was challenged in the district court. The district court ruled that the districting was improper, violated the Voting Rights Act, and had to be redone.

And the Supreme Court stayed that decision last spring, pending the Supreme Court's full consideration of the case this term. And yet, when the Supreme Court issued its decision, just a few days ago, it affirmed the lower court's decision. Now, usually, when the Supreme Court stays a lower court's decision, that's a pretty decent indication that the Supreme Court thinks that the lower court got the matter wrong, but it turned out not to be the case this time.

So I'm going to talk a little bit about the case and about the legal background of the case. I'll try to keep it fairly brief so as to leave time for your questions. Now, the case concerns the congressional redistricting in Alabama. Alabama has seven members of Congress, members of the House of Representatives, so it needs seven districts, and the question is how many of those seven districts would be drawn so as to be majority minority; that is, where black Alabamians would have effective control over the selection of the member of Congress to be chosen from that district.

As the Alabama legislature drew the seven districts, one of the seven was majority minority, but the plaintiffs sued and claimed that a second majority minority districts could be drawn, and expert testimony demonstrated how that would be possible. In brief, it involves creating a district that would run across the entire width of Alabama from east to west. And if that were done, a second majority minority district could be inputted, and doing that would give blacks a more proportionate control over members of Congress compared to the one out of seven.

What I mean by that is that blacks in Alabama represent roughly two-sevenths of the population of the state, and if they controlled two-sevenths of the congressional seat, then there would be a roughly proportionate representation of the black community in Congress. Not necessarily to mean that they would select black representatives, but that the black voters would have control over two of the seven seats.

The claim was based on the Voting Rights Act, specifically Section 2 of the Voting Rights Act, which requires states to have standards, practices, or procedures with respect to voting that don't have the effect—and that word is key—that don't have the effect of disadvantaging people based on race.

And the way the plaintiffs argued -- or, based on the plaintiff's argument, because it was possible to create a second congressional district, basically, Alabama had to create a second congressional district. The details of the law surrounding Section 2 of the Voting Rights Act are slightly more complex. I'll explain that a little bit more here, but the bottom line is that the plaintiffs claimed that, because it was possible to draw a second majority minority district, then Alabama had to do that.

The requirements under Section 2, the so-called Thornburg v. Gingles preconditions, say that you need to create a majority minority district if the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district. That's number one. And conditions two and three combine to form what we call racially polarized voting. That means that the minority group has to vote together so that there typically is a candidate of choice of the minority group, and the whites surrounding that minority group have to vote sufficiently as a block against the minorities' preferred candidate, usually to permit the majorities, preferred candidate to defeat the minorities' preferred candidate.

Now, the lower court, the three-judge district court, in this case, found all three preconditions satisfied, and so they progressed to the final step in the Section 2 analysis, which is to ask whether, under the totality of the circumstances, the districting scheme chosen by the legislature deprives the minority group of a fair opportunity to access the political process and elect representatives of their choice.

Well, the three-judge district court said all of those conditions are satisfied, and so there should have been a second majority minority district created. And all of that was pretty standard under the way that Section 2 has been interpreted in the past; that is, there's nothing that stands out about the district court's decision in this case that looks wrong as a matter of existing Section 2 precedent.

The problem, as the State of Alabama argued it—and some of the dissenting justices in the Supreme Court ultimately saw it—was that, in order to draw that second majority minority district, the state would have had to concentrate on race. They would have had to create that second majority minority district on purpose, focusing on race, looking at race as the non-negotiable point; that is, you go into the redistricting process saying, "We're going to create a second majority minority district, and the only question is where that district should be."

And Alabama said, "Well, yes, of course, it's possible to do that. The plaintiffs have shown a way in which that could be done, but it's extremely unlikely," said Alabama, "that a second majority minority district would have been created if you didn't prioritize race." If you just prioritized what might be called neutral redistricting criteria, there was almost no way that you were going to get a second majority minority district. And they demonstrated this through various computer simulations where they drew thousands—and by one count, even millions—of potential maps without being able to create a second majority minority district unless they prioritized that factor.

And so Alabama said what the plaintiff's interpretation of Section 2 of the Voting Rights Act would require is an excessive focus on race. It's not merely giving a minority group a fair chance. It's not merely protecting, certainly just against intentional discrimination; the plaintiff's interpretation of Section 2 goes way beyond that to require states to prioritize race in drawing district lines.

And Alabama said, "Number one, we don't think that's required by the Voting Rights Act. And number two, if it is required by the Voting Rights Act, it creates substantial constitutional problems under the Equal Protection Clause because it forces states to focus so much on race."

The Court's decision. The Court said, "Well, as to the statutory point, that is exactly what Section 2 requires. Section 2 does require a focus on race." And this is implicit, I think—and the Court majority thought—in that first precondition from Thornburg v. Gingles; that is, the first precondition asks, is it possible to create a single-member district that is reasonably compact in terms of geography where the minority group would constitute a majority of the population?

Well, the only way you answer that question is by trying to ask the question, and if you ask the question, you're already talking about race. So you're saying, is it possible to create a district where, in this case, blacks are a majority of the population? Well, you're focusing on race, and that's just the nature of the enterprise.

So the Supreme Court said, again, following Section 2 precedents, that Alabama's argument in favor of a kind of race-neutral interpretation of Section 2 of the Voting Rights Act was just not consistent with the precedent, particularly Thornburg v. Gingles, or even with congressional language or apparent intent.

As I said when I described what the statute said, the statute was amended in 1982 to replace a standard that prohibited intentional discrimination against racial minorities and replace it with a standard that outlawed districting practices or election practices or procedures that had the effect of reducing minorities' voting power.

So when Congress, apparently quite deliberately, decided to create this effects test, the Court says what Congress meant was that states were going to have to pay attention to race. It wasn't simply prohibiting intentional discrimination.

Now, as to the constitutional matter, I think this is where the decision is going to end up being more significant. I don't think the statutory element of the Court's holding changes much of anything, but I do think that the constitutional decision is perhaps much more significant. But to explain why, I need to provide a little bit more background.

I've already explained Section 2 of the Voting Rights Act, but now I need to talk about the Equal Protection Clause a little bit. In a different line of election law precedent, the Supreme Court has interpreted the Equal Protection Clause of the Fourteenth Amendment to prohibit districting where the predominant factor in the districting is consideration of race.

So under the Court's Equal Protection precedent—the seminal case is one called Shaw v. Reno, and there have been several cases after that, the most important of which is probably Miller v. Johnson—the Court has said, when you're doing your redistricting, you can consider a bunch of factors. You can even consider race, but you may not make race the predominant factor. And in Miller, the Court said this applies even when the district lines that you end up drawing don't seem an obvious gerrymander.

So even if the districts look kind of pleasant or normal, if race was the predominant factor in drawing those district lines, the Court says that's unconstitutional. I think the Milligan case waters down that standard because the Court here, in this decision just a few days ago, not only did it say that the district court's decision requiring Alabama to go back to the drawing board was correct as a matter of statutory interpretation, the Court says that Section 2 of the Voting Rights Act in requiring that consideration of race was constitutional, that it was constitutional for Congress to require Alabama to give enough consideration of race so that it could be sure that it was creating a second majority minority district

Arguably, and a point that the dissenting justices actually did argue, this forces Alabama to take actions that the Supreme Court in those prior cases had said are unconstitutional; that is, given how hard it was apparently to draw a second majority minority district in Alabama because of the locations where black voters live, the only way -- Again, this is contested, but this is the argument.

The only way that one could create that second majority minority district is if one prioritized—that is, gave predominant consideration to—race, but if those other cases said you can't make race the predominant factor in districting, then that would have been unconstitutional, and Congress certainly cannot require a state to do something which is itself unconstitutional under the guise of enforcing that very amendment.

So what did the majority do? Well, the majority said that, if Alabama draws this second majority minority district, yes, of course it's going to have to pay attention to race, but the majority said Alabama would not have to make race the predominant factor because Alabama could draw districts that still paid attention to other factors, like keeping the district together; that is, not breaking it up into different pieces, making sure that it had the same number of people in each district, and in particular, making sure that the districts were a relatively compact territory, that they didn't spread out over an excessive amount of geography in the state.

And so the Supreme Court majority, the opinion by Chief Justice Roberts, says that there isn't any constitutional violation here because the state can give that consideration to race while, at the same time, also giving consideration to traditional districting factors, most especially this desire for compact contiguous districts, also some degree of incumbency, protection, respect for municipal and county borders, and that kind of thing.

So the Chief Justice's opinion says the consideration of race is required by the Voting Rights Act and not unconstitutional, and so that's why the Court ended up affirming the decision below and saying that there did have to be a second majority minority district created in Alabama. The dissenters said that this decision is inconsistent with the Shaw v. Reno line of precedence.

Well, the dissenting justices take varying positions on the point, but basically, they would have -- reinterpreting Section 2 of the Voting Rights Act so as to avoid the potential constitutional problem; that is, they would have interpreted Section 2 as to allow Alabama to have only one majority minority districts, so long as a neutrally carried out, a redistricting process that didn't consider race, would have produced only one majority minority district. The dissenters said that that should be sufficient under Section 2.

So, in the long term just within election law, I suspect that this decision will be taken to water down the Shaw v. Reno line and that it will be comparatively more difficult in the future to establish that race was the predominant factor in districting.

After all, in future cases, everybody's going to be able to point to this case and say, if you had to prioritize race so much to create the second majority minority district in Alabama, and that was constitutional so long as you also paid attention to compactness and continuity of district, well then, in any future case, so long as the district line-drawers pay some attention to compactness and contiguity, that, likely, the Shaw v. Reno line won't be nearly as much of an obstacle for them.

I'm also intrigued by the possibility that this case might foreshadow something beyond election law. As many, perhaps all of you know, the Supreme Court still has a pending, very high-profile case about the use of affirmative action in college admissions. And the decision in this case, which was 5-4, the five most liberal justices against the four most conservative justices—so the three Democrats plus Chief Justice Roberts, who wrote the opinion of the Court, and Justice Kavanaugh combined to create the majority—I wonder whether this says anything about that affirmative action case.

It might be pretty hard for some of those justices, Roberts and Kavanaugh in particular, to come out in the affirmative action case and take a full-throated, race-neutral interpretation of the Equal Protection Clause if, in this decision, they were willing to sign on to or write an opinion that said that it is constitutional for Congress to require states to consider race so as to ensure against a deprivation of voting power for racial minorities.

Now, the contexts are, of course, considerably different. The Voting Rights Act arises out of the Civil Rights era where there could not have been any more clear demonstration of the need for federal intervention to protect minorities' interests, particularly with regard to voting.

So I'm not saying that it's impossible for the Court to adopt the race-neutral approach to college admissions under the Equal Protection Clause and square that with the decision in this case, but I am suggesting that, if people were hoping for a rather full-throated defense of race neutrality in the affirmative action case, this suggests that you may not get an entire five- or six-justice majority behind a flat, race-neutral rule. But, of course, we'll find that out sometime over the next couple of weeks.

So with that, Sam, I think I will turn it back to you and allow you to bring in some questions. Again, thanks very much for your attention and your time today.

Sam Fendler:  Excellent. Thank you so much, Mike. We will now turn to the audience for questions. Again, if you have a question, please enter it into the Q&A function at the bottom of your Zoom window.

Mike, you talked about the Equal Protection Clause standard or the jurisprudence that, as you said, prohibits districting or redistricting, where the predominant factor is consideration of race. That line features very predominantly in Justice Thomas's dissent. He talks about -- Well, for one thing, he quotes Grutter v. Bollinger and he says the Constitution abhors classifications based on race. A lot of his dissent is about this pure race neutrality, as you mentioned.

When it comes to the majority minority districts, how do you tackle the issue of the state's racial makeup versus the district's proportionality, which is to say, two-sevenths of the state being black and one-seventh or maybe two-sevenths of the congressional districts being majority minority? How would you attack that issue?

Prof. Michael Dimino:  I think that's an excellent question. The Court has struggled with that, ever since the 1982 amendments to the Voting Rights Act because Congress created this standard that says courts should assess, under the totality of the circumstances, whether members of racial groups are being deprived of this equal opportunity to elect their representatives, but a proviso was added to the end of the statute, which says, provided that nothing in this statute guarantees any group have right to elect members in proportion to their share of the population.

And so the Court has tried to figure out, "Well, how can we protect the right that Congress meant to guarantee without creating a right that Congress meant to disclaim?" And the Court has tried to get around this by creating a standard of rough proportionality. So you're not guaranteed exactly proportional representation, but if your representation is not at least roughly proportional to your share of the population, then that likely indicates, under the totality of the circumstances, that something is wrong, and there may well be a Section 2 violation.

Now, as to the ultimate answer in any of those cases may depend on the individual state, a state may, for example, be able to demonstrate that because, a minority group is so intermixed among other populations of the state, that there's just no practical way of drawing districts that would give a roughly proportionate share of the districts to that minority group. But that's how the Court's done it so far.

Sam Fendler:  To your point, to continue where you were going -- what you were getting out there, the Court's opinion does say that it thinks this project of redistricting, of drawing congressional districts, should be a state project and federal courts should stay out of it. And to that, I want to ask a question that's coming from our audience. What do you think is going to be the possible impact of this case on future redistricting maps, such as those in Louisiana, Georgia, and Arkansas?

Prof. Michael Dimino:  I think that the -- Well, let me answer it this way. Until now, district line-drawers have been placed between a rock and a hard place. So they've had Section 2 of the Voting Rights Act, which says or implies or was interpreted to mean that the line-drawers must consider race. And then, on the other hand, they have the Equal Protection Clause, which was interpreted to mean, but you must not consider race too much.

So they've had to try to draw these district lines with some consideration of race, but looking over their shoulder that, if they make race the predominant factor, then they'll create an Equal Protection violation. If it turns out to be true, as I suspect that this case signals a kind of retreat from the Shaw doctrine, it will make it easier to draw the districts in that it will eliminate one of those impediments.

I think the natural tendency, then, of district line-drawers will be to create majority minority districts so as to bring the number of districts into rough proportionality, and I think that those district line-drawers will end up caring much less, will be worrying much less about the possibility of a Shaw suit under the Equal Protection Clause.

I think that's going to be particularly true just in the nature of politic if the line-drawing is controlled by people who want to maximize black voting power or maximize Democratic control of districts. I think they're likely going to be the ones who are going to focus on race. It's usually the way that it was -- The Shaw v. Reno kinds of attacks tended to be brought by people who objected to the excessive creation, what they thought of as the excessive creation, of majority minority districts.

And so that's how I think it could play out. There is, of course, another effect. There's also been some dispute in the literature about whether the creation of majority minority districts helps minority Democrats, but could hurt overall Democratic chances or could hurt white Democrats because it would result in packing together more minorities into the district, leaving non-minority Democrats in districts that are more likely to be controlled by Republicans.

So as to how that turns out practically, I guess we'll have to see, but I think that the effect in terms of what district line-drawers are going to do in the future is that they will feel at least as constrained as they have been in the past to make sure that they don't shortchange minorities, and I think they'll feel a little less worried about erring in the other direction.

Sam Fendler:  I think you're right that those who are charged with this job of drawing lines are certainly stuck between a rock and a hard place. And in the case of Alabama, moving forward from here, Justice Thomas, in his dissenting opinion, he seems to argue that, in order to achieve a second majority minority district, it would actually require sort of a traditional, ugly gerrymander, which is to say something of a tentacle dipping down into a black neighborhood to pull some of those people into another district.

But what he says is, regardless, even if the districts were very clean and looked pleasing to the eye, that it's still a practice of self-evident racial gerrymandering. Do you think that this is a case where it's almost in the eye of the beholder how much one is relying on race in putting these districts together—I know you just talked about it a little bit—or is this something that maybe that we could figure out a way to say that race is not close to objectively the driving factor of these new districts?

Prof. Michael Dimino:  The relevance of a district's shape has always been something of a mystery, but you ask an average person about gerrymandering, the person thinks about how the district looks on a map. And the person might feel as if something is amiss, something's gone wrong, this can't be legal to draw districts that look so bad, but it's hard to articulate what it is about misshapen districts that amounts either to a constitutional violation or a violation of the Voting Rights Act.

You're still in a district with the same number of people. You don't have any right to be in a district that ultimately votes your way. So if you get in a district and you lose all the time, that's not a constitutional violation. Now, you might say, "Well, we should care about districts that prioritize race, that it should be improper to prioritize race, and we can use the shape of the district in an evidentiary kind of way."

So we can look at the shape of a district and say, "Look, there's no other explanation for why the district would look this way unless it were drawn to try to grab people of one race and exclude people of another race." And that's basically what the law says. We're not going to create a right to a pleasantly shaped district, but we're going to allow the consideration of the district shape for what it may indicate about what the purpose is.

Now, what this case means for that -- You're right, of course. Justice Thomas thinks that you're going to have to draw districts in a different kind of way. Justice Alito's dissent says we shouldn't care what the districts end up looking like if race did actually predominate, and the majority just says, "Well, race doesn't predominate because these districts, the ones that were offered by the plaintiffs, don't look particularly bad to us and don't look appreciably worse than the ones that Alabama's legislature drew."

But again, why that's relevant is not at all clear, and Justice Alito, in his dissent, asks that question. If we don't have a right to pleasantly shaped districts, then what does it matter if you've drawn fairly nice looking districts if everybody knows that the only reason you're drawing districts this way is to create a second majority minority districts?

Sam Fendler:  I want to ask you another question from our audience. Do you think that Justice Kavanaugh may have a different view if a new district wasn't so apparently gerrymandered where most of the African Americans are packed into one district? Well, once you answer that first, we have another question about Justice Kavanaugh's stance here.

Prof. Michael Dimino:  Well, I don't see how that would make a difference, so I guess my answer is no, with the usual caveat that I don't know what he's thinking, and what he's thinking based on some facts that aren't here is even a step beyond. So I guess the answer I should give is I don't know, but I don't see anything from the majority opinion or from his separate opinion that would cause me to think the answer's yes.

Sam Fendler:  So the second question about Justice Kavanaugh: He discussed in his concurrence that Section 2 may be constitutionally invalid under the same theory that Section 4 was invalid in Shelby County. Do you have any thoughts on that line of --

Prof. Michael Dimino:  So the first thought is, nobody else joined his concerns, so you have to pay attention to that. The problem with Section 4 in Shelby County was that Congress had created different rules for different parts of the country and had applied those different rules based on data that were many decades old.

And so the Supreme Court said it's no longer consistent with Congress's authority to enforce the Equal Protection Clause and the Fifteenth Amendment's protection against racial discrimination and voting for Congress to base that enforcement on data that's that old.

Now, of course, minorities have different amounts of population in different states, and they're distributed geographically within states in very different amounts, so the application of Section 2 in different areas of the country is necessarily going to be different. But I don't know that the amended Section 2 is going to be considered unconstitutional on the same kind of grounds that Shelby County invalidated Section 4.

Sam Fendler:  I want to ask you some about the larger commentary around the case. It's been pretty widely reported that -- or maybe this case has been described as a surprising outcome. Do you think it's a surprise, and if so, why?

Prof. Michael Dimino:  I do think it's a mild surprise. The reason that I am most surprised that the dissenters couldn't pick up at least a fifth vote was that the Supreme Court enjoined the lower court's decision last year. If the Supreme Court knew that the lower court's decision was correct, there doesn't seem to have been a whole lot of reason to stop it from going into effect from last year's elections.

Now, Roberts and Kavanaugh, as it turns out, especially interestingly, wrote separately in the stay decision to indicate that they were granting the stay, but don't read too much into this. We may still affirm the decision below. And in fact, Roberts came out quite explicitly and said that the lower court's decisions seems perfectly consistent with the established precedent in this area.

I was still surprised by the outcome, however, because Roberts then went on to say, "Well, but perhaps we should rethink the Section 2 precedent in light of later developments, in light of the Supreme Court's constitutional jurisprudence under the Equal Protection Clause and similar kinds of factors."

So that's kind of what I expected. I expected a decision that would say, "The lower court's decision was basically right under existing precedent, but we need to modify existing precedent so as to make sure that it doesn't require the predominant consideration of race, which we have, in the Shaw line, determined to violate the Equal Protection Clause," something along the lines of what Justice Alito was suggesting in his dissent, but it turns out, not to have happened that way.

Sam Fendler:  Mike, I know that psychoanalyzing the justices is a tough thing to do, but it appears to be a large part of court watching. You know, Chief Justice Roberts is obviously an institutionalist. It seems to me that Justice Kavanaugh is coming out as a bit of an institutionalist, which is just to say that they're very concerned about protecting the Court's image and its place as an institution in the country. Do you think that maybe that concern for them had anything to do with where they came out here?

Prof. Michael Dimino:  I think it's impossible to say, given the information that we have. It's been suggested, related to your point, that maybe the reaction to the Dobbs decision was so strong that the Court didn't want to come out with another decision that would be seen as politically conservative. I don't know whether that's true or not. I think it's just speculation.

But I do have a reason to doubt that interpretation, though—there's the speculation—and that's, as I said before, because Kavanaugh and Roberts went out of their way last year to write that, even though they were willing to grant the stay, "Don't mark us down for reversing the lower court quite yet."

So who knows what's actually in their hearts' hearts? But I'm not one to read in that kind of psychological explanation, particularly because there was that indication more than a year ago that they viewed this case from something other than the position that the four conservatives, that Thomas Alito, Gorsuch, and Barrett viewed the case from.

Sam Fendler:  To shift slightly to a more forward-looking view, one of our audience members asks, if you were advising the Alabama legislature, how would you advise they act next in response to this decision?

Prof. Michael Dimino:  Do what the plaintiffs asked. If I'm advising the Alabama legislature, my goal is going to be, try not to get sued again. I think what to do in reaction to this particular case is relatively easy. And because it was so difficult to draw the second majority minority district that, once we have this holding that it's required to draw the second majority minority district, there just isn't a whole lot of wiggle room.

You can tinker around the edges with where exactly you draw the lines, but the outlines are already set. There isn't going to be another way to draw the second majority minority district, and so, once the Court has said that's what you have to do, then that's what you have to do.

Sam Fendler:  Another question from the audience. Can the remedial plan be challenged as an unconstitutional racial gerrymander? The attendee notes, "I don't think the majority precludes this, and the district court did not consider it."

Prof. Michael Dimino:  Maybe I'm overreacting the majority opinion, but I think the majority opinion does preclude that. The majority opinion says, whether you consider it to be a holding or not, that race would not predominate if the Alabama legislature were to enact the plan proposed by the plaintiffs because the traditional concerns of districting are still being given effect. So I don't perceive there being as much wiggle room as the questioner does.

Sam Fendler:  One question from me, Mike. A lot of—well, at least a substantial portion of—Justice Thomas's dissenting opinion talks about representation versus voting, which is to say, the Voting Rights Act and legislation like it is particularly focused on rewarding efforts to prevent minorities from voting, but it doesn't actually say anything on representation. I'm curious what you think about that, if you think the law speaks in one direction or another, or if maybe both of those things are included in the letter or maybe the spirit of the law.

Prof. Michael Dimino:  That's an issue on which Justice Thomas has staked out a position that is different from the rest of his colleagues, and he's been on that position in several cases throughout the last several years. So his interpretation of the Voting Rights Act would go back to perhaps what its original understanding or intention was when it was passed in 1965.

And it does seem that, at the very least, the priority of Congress in enacting that was to protect access to the ballot, to get rid of overly burdensome registration requirements, for example, that had impaired blacks' ability to register and to cast ballots.

The problem with Justice Thomas's position—well, number one—is that other members of the Court have rejected it in holdings in in several cases. So whatever can be said for the original validity of his argument, it doesn't accord with modern precedent.

And the second potential problem for Justice Thomas's argument is that it fits in much better with the original 1965 version of the Voting Rights Act than it does with the amended, post-1982 version of the Voting Rights Act. To say that in a little different way, Justice Thomas may well be right that, when originally passed, the Voting Rights Act was concerned with barriers to voting and registration and that kind of thing, but it is much less plausible to think that Congress was exclusively concerned with those kinds of things when it amended the Act in 1982.

It seems more likely—certainly, it has seemed more likely to other members of the Court—that when Congress amended the Act in 1982, it was thinking of redistricting. And, in fact, some of the language of the 1982 amendments to Section 2 of the Voting Rights Act incorporated language from Supreme Court opinions in redistricting cases giving minority voters a fair opportunity to access the political process and elect representatives of their choice.

So I think, whatever might be said of Justice Thomas's argument, vis-a-vis the original 1965 Voting Rights Act, I think if you have the statute as it does now that explicitly refers to the equal opportunity to elect representatives of your choice, then if even if you believe Justice Thomas's view of the original one, then that purpose has changed over time and has broadened compared to what it originally was.

Sam Fendler:  Excellent. Well, Mike, we're closing up on our time, and we've had the opportunity to get through a lot of questions, both from our audience and from me, and for that, I thank you. Do you have any final thoughts that you want to leave the audience with?

Prof. Michael Dimino:  Only with my appreciation for them, their time, their questions for you, your hard work, and your wonderful ability to moderate this discussion today, and also my appreciation to The Federalist Society generally for inviting me here and for hosting this discussion. So thank you all very much.

Sam Fendler:  Well, Mike, thank you very much. From me and on behalf of The Federalist Society, I also want to thank you for sharing your time and your expertise with us today. To our audience, I want to thank you as well. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in, and we are adjourned.

 

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