Marjorie Cohn is author of the books, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues and The United States and Torture: Interrogation, Incarceration and Abuse. She takes a critical look at the U.S. Supreme Court ruling in the Louisiana v. Callais case that’s decimated what was left of the Voting Rights Act, as examined in her commentary, “The U.S. Supreme Court, Race & the Right to Vote.”
SCOTT HARRIS: We begin our program this evening by welcoming to our show Marjorie Cohn, professor emerita at the Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. Marjorie’s author of books, including Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, and the United States and Torture, Interrogation, Incarceration and Abuse. Marjorie, thanks as always for making time for us in this crazy world we’re living in.
MARJORIE COHN: My pleasure, Scott. Thanks for having me.
SCOTT HARRIS: So your important article that our listeners can find at Consortium News titled the “U.S. Supreme Court, Race and the Right to Vote,” you write in the opening line of that piece about this Supreme Court ruling in the Louisiana vs. Callais case, “In perhaps the most insidious decision in nearly a century, the U.S. Supreme Court disemboweled Section 2 of the landmark Voting Rights Act (VRA) of 1965, the “crown jewel” of the U.S. civil rights movement.” Marjorie, tell our listeners about the importance of this case in setting back the long struggle to achieve a multiracial democracy here in the United States.
MARJORIE COHN: Well, Scott, the Voting Rights Act ended Jim Crow era election procedures that kept black people from voting in the South through intimidation, poll taxes, literacy tests. And this was part of a system of post- Civil War legalized racial segregation that was meant to restore white supremacy after the end of slavery and the federal military occupation of the South. Jim Crow lasted from 1877 until the passage of the Civil Rights Act of 1964 and the Voting Rights Act the following year. So Section 2, which is what was disemboweled in this new Supreme Court case, allows states to draw voting districts that benefit candidates from racial minorities and enable citizens to challenge election maps that are racially discriminatory. So in its April 29th ruling in this case, Louisiana versus Callais, the 6 to 3 right-wing super majority of the Supreme Court struck down a congressional map that a group of self-described non-African American voters had challenged as an unconstitutional gerrymander.
Samuel Alito, John Roberts, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett all ruled that drawing districts to remedy past discrimination itself constitutes unconstitutional racial discrimination. Now for 61 years, the Voting Rights Act has been one of the most significant protections against racial gerrymandering. There are now more than 10,000 black elected officials throughout the country compared to about 1,500 in 1970. And remember, the Voting Rights Act was passed in 1965. So what this decision does, Callais, is to pave the way for the largest decrease in representation by black members of Congress and it will lead to the elimination of dozens of black and Latino majority districts throughout the South and a substantial number of current congressional seats.
SCOTT HARRIS: So Marjorie, you just talked about the short- and long-term effects. As I understand it, because this ruling was handed down close to this November’s election—that we’re going to see a few of these states take action. I think Louisiana is one of them to try and even delay primaries, which are already set in motion, right? Some of the early balloting is already taking place. So that’s going to be a battle in the courts, I believe, but the longer term effect of this will be seen more likely in 2028.
MARJORIE COHN: Yes, that’s true. What’s happened is that nearly 70 of the 435 congressional districts are protected by Section 2 and the Callais ruling will likely derail 28 pro-voting lawsuits that seek to prevent state legislatures from drawing maps that dilute the power of racial minority voters. There have already been a rash since this opinion of Republican redistricting efforts throughout the South in advance of the 2026 midterms. In Republicans in Louisiana, Tennessee, Georgia are considering redistricting. Louisiana has actually suspended next month’s primaries to allow lawmakers to pass a new congressional map first and the GOP stands to gain as many as five new seats this year. GOP-led states could pick up as many as 19 new Republican-allied House seats in the coming years. Realistically, probably we’re talking about one to three seats in 2026 after the midterms, but in 2028 it’s been called “apocalyptic,” what could happen.
Democrats could lose about 12 majority minority districts throughout the South. And what’s happening specifically is Virginia is considering they had a redistricting referendum that barely passed, voters barely passed it. Now the court in Virginia is reconsidering that referendum. In Tennessee, the governor called for a special session this week and it might eliminate the only blue House seat in Tennessee. A new map before the midterms is a strong possibility. In Alabama, there are two black majority districts thanks to a ruling of the Supreme Courts three years ago, but the governor of Alabama called after this Callais decision, called for a special session, but the Supreme Court, the U.S. Supreme Court has to clear the way for that. So if the Supreme Court allows it, then Alabama could return to a congressional map that the Supreme Court struck down three years ago. Maybe South Carolina, the Republicans running for governor applying pressure on and GOP leaders have not appeared eager to try to draw away from the state’s last Democratic House because they’re worried that if Republicans get too cute with this, they could create two potentially competitive districts.
And then in Florida there’s a special session. I think today they were going to have a special session. I don’t know what happened, but Gov. DeSantis had a proposal to redraw a map for the midterms, which could pick up four more GOP seats for the House.
SCOTT HARRIS: Thanks for that rundown, Marjorie. One thing that is being overlooked, at least in a lot of the initial discussion of the impact of the Supreme Court decision is what may happen on the local, state and county level, because there’s a lot of districts that are drawn there that may similarly be impacted by this decision where municipalities and states have made extra effort to be inclusive and make sure there’s fair representation among the people of their state. You want to say a word about that?
MARJORIE COHN: Yes. Well, what I can say, Scott, is that the majority of Section 2 lawsuits that have benefited black people and given them an equal opportunity to vote have happened at the local level. I think you’re right. I think we’re going to see a lot of activity at the local level that is going to ultimately disenfranchise black people. Now, keep in mind that Democrats could redraw, could also redraw anywhere from 10 to 22 additional congressional seats for the Democratic party in time for the 2028 elections that could theoretically offset Republican gains even if the GOP goes crazy with its redistricting. But I think it’s a very, very worrisome development. And one interesting thing is that this is the result, this decision is the result of chipping away at the Voting Rights Act by John Roberts for years. He has had a long time goal of neutering voting rights and saying that race should not be considered in voting and discrimination cases.
As a young lawyer in the Reagan administration, John Roberts promoted a so-called colorblind approach to voting rights and discrimination in public schools.
I should say that Section 2 of the Voting Rights Act prohibits any voting qualification or prerequisite to voting that results in the denial or abridgement of the right of any citizen of the U.S. to vote on account of race. And that occurs when voters of color have less opportunity than other members of the electorate to elect representatives of their choice. That’s Section 2 of the Voting Rights Act. In 1982, Congress amended Section 2 to provide that evidence, it’s not necessary to show evidence of discriminatory intent in order to prove racial discrimination, even policies that appear neutral can have a discriminatory effect on a particular group.
And so in 1982, when Congress was considering amending Section 2 to prohibit voting practices that have a racially discriminatory effect, John Roberts was the point person in the Justice Department in the campaign to defeat that amendment. Then in a 2006 voting rights case, Roberts cynically wrote, “It is a sordid business, this divvying us up by race.” Then the following year, Roberts flippantly wrote in a case striking down voluntary desegregation programs in Louisville and Seattle, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” this kind of reverse discrimination theory.
It was Roberts, John Roberts, Chief Justice John Roberts then, who authored the 2013 opinion in Shelby County vs. Holder that gutted the other major provision of the Voting Rights Act, Section 5. Section 5 had required federal pre-clearance before any changes to election rules could go into effect in jurisdictions that had a history of discriminatory voting practices. And at the time that in 2013, at the time that Shelby was decided, civil rights icon John Lewis said, “What the Supreme Court did today is stab the Voting Rights Act of 1965 in its very heart.” But in Shelby, Roberts provided assurances, he promised that Section 2 would still be available to challenge racial discrimination in voting. Now the Roberts court has neutered Section 2 as well. I should also say that Section 5 was important, really important because Section 5 had been responsible for hundreds of actions by state and local governments that were actually found to be discriminatory.
They were blocked and countless more actions weren’t even attempted because of the understanding that pre-clearance would be denied. So now we lost Section 5 and now we have lost Section 2.
SCOTT HARRIS: Thank you for running that down. And I think as you said in your article as well as others have noted, John Roberts, the chief justice, often tries to appear as the adult in the room and not some kind of radical right- wing bombthrower. But in essence, certainly in this case, he has methodically destroyed the Voting Rights Act through his whole career. It seems to have been a top priority for him, right?
MARJORIE COHN: It has. And interestingly, he’s very worried. He’s as much of a radical right-winger as the other five on the court. But it’s his court, the Roberts Court. He’s concerned about the legacy of the Roberts Court. He wants to appear even-handed and he actually assigns the authorship of the majority opinion and he assigned it to Samuel Alito. He didn’t write it himself and I suspect he did not want to go down in history as destroying the other significant part of the Voting Rights Act. So he assigned it to Samuel Alito.
SCOTT HARRIS: We’re speaking this evening on Counterpoint with Marjorie Cohn, professor emerita at the Thomas Jefferson School of Law, dean of the People’s Academy for International Law and past president of the National Lawyers Guild. Of course, we’re speaking about the Supreme Court decision last week that really just tore up the Voting Rights Act of 1965. Marjorie, I did want to ask you about the definition of racial and partisan gerrymandering. As you said earlier, the Supreme Court just said, “Well, partisan gerrymandering, we’re not going to do anything about it. But they still held racial gerrymandering to be unconstitutional. But the test that they have drawn here in this, in previous cases—it’s almost impossible to prove it, right? But the thing is that as I understand it, partisan gerrymandering and racial gerrymandering often overlap, right? And that’s particularly true in the southern states.
MARJORIE COHN: Yes. And what that means is that people of color more frequently vote Democratic. Now, after this decision in Louisiana vs. Callais, states can defend their racist maps by claiming they were just engaging in partisan as opposed to racial gerrymandering. The Supreme Court decided in 2019 in the case of Rucho versus Common Cause that even though partisan gerrymandering is unconstitutional, it cannot be challenged in federal court. And Justice Elena Kagan wrote in her dissent, which was joined by Sonia Sotomayor and Ketanji Brown Jackson, a very powerful dissent. Kagan wrote today, “The majority straight-facedly hold that the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders.” And Kagan went on to say,” Now the state need do nothing more than announce a partisan gerrymander, assuming the state has left behind no smoking gun evidence of a race-based motive and almost fanciful prospect Section 2 will play no role.
“So now all a state has to say is that wasn’t racial gerrymandering, that was partisan gerrymandering and there’s absolutely nothing that can be done to challenge that in federal court.”
SCOTT HARRIS: So it appears the only thing that could be used to prove that a gerrymander is racially motivated is if the people doing it wear their Ku Klux Klan hoods, right? Is that the only way?
MARJORIE COHN: Right, because as Kagan wrote, unless there’s a smoking gun, how do you prove that the state legislators that drew the congressional map had a discriminatory intent? Very, very hard to prove. And Congress specifically amended Section 2 and 1982, as I said, to say, you don’t have to prove intentional discrimination, you just have to prove discriminatory effect. And nevertheless, the Supreme Court rewrote that congressional statute and of course this is a violation of separation of powers. Congress has the power to write laws. The Supreme Court only interprets them. But it’s really significant and it’s probably not surprising that this happened. I mean, they’ve been moving steadily in this direction.
What Justice Kagan wrote—and I think these are very powerful words is and of course joined by Sotomayor and Jackson—“The Voting Rights Act is—or, now more accurately, was— one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history. It was borne of the literal blood of Union soldiers and civil rights marchers. It ushered in awe-inspiring change bringing this nation closer to fulfilling the ideals of democracy and racial equality and it has been repeatedly and overwhelmingly reauthorized by the people’s representatives in Congress. Only they have the right to say it is no longer needed, not the members of this court. I dissent then from this latest chapter in the majority’s now completed demolition of the Voting Rights Act.”
SCOTT HARRIS: Well, Marjorie, before we run out of time, we’re going to get to an important part of this discussion and that is remedies. You’ve touched on some of them, but in your mind, what’s the most viable path to get to a remedy to reinstate the Voting Rights Act and it’s, I think, widely credible and widely supported intention to eliminate racial discrimination in voting and in our democracy and have fair representation for everyone in this country. What is the path that you think may actually succeed?
MARJORIE COHN: Well, I think Democrats are going to have to be as aggressive in their redistricting as the Republicans. Generally, Republicans are more aggressive and that’s why they seem to be winning so much. But Democrats are going to have to be equally aggressive and beat the Republicans at their own game, not that this is a game. There’s also Supreme Court reform, which I think is kind of pie in the sky, but increasing the number of members of the Supreme Court, I really don’t like to call them justices because so many of them are not really “justice.” Justices, they don’t do justice, but increasing the number of members of the Supreme Court in creating term limits for them, maybe 18 years so that they don’t serve for a life.
But I do think that Democrats are going to have to be more aggressive than Republicans and they’re not used to that and I think they’re going to have to do that because we’re going to see now a redistricting flood, not that it hasn’t been happening already and certainly after the Texas redistricting, then California fought back and then Virginia.
So it’s already happening, but I think that’s really ground zero at this point, I’m afraid.
SCOTT HARRIS: Marjorie, what about the John Lewis Voting Rights Advancement Act that failed in the Senate when Democrats held both the House and Senate? They couldn’t overcome a filibuster, but then they tried to use a majority vote to get rid of the filibuster for voting rights, voting rights exclusively, but that didn’t work because we had Kristen Sinema and Joe Manchin, two Democrats vote against that change. Is there any chance that legislation like the John Lewis Voting Rights Advancement Act could succeed in the next Congress?
MARJORIE COHN: Well, only if the Democrats take back the Senate and the House and the problem is with this Callais opinion, which by the way, I was predicting and other people were predicting it wouldn’t come down till the end of June, which is when the Supreme Court hands down its most controversial decisions. I know this is kind of cynical, but I bet the Supreme Court handed it down now to try to disrupt the midterm elections. I know that sounds cynical, but it certainly seems like the timing is right for that. So depending upon what happens with this redistricting, what happens in the midterms, the Democrats had been favored to take back at least the House and possibly the Senate. I think all bets are off now. There’s also another case pending before the Supreme Court that will be decided by the end of June, beginning of July, and it’s called Watson vs. Republican National Committee where the question is whether or not mail-in ballots that are postmarked by Election Day but received after election day can still be counted.
And Trump has been on a tear against mail-in ballots for a long time, even though he votes by mail ballot. This could just really disrupt the midterm elections, even if the Supreme Court doesn’t decide it until the end of June, beginning of July, because although many states will have voted, many will have not. Tens of millions of voters could be disenfranchised if they mail their votes by Election Day, but they aren’t counted until after election day. So this also could put a real monkey wrench into the entire voting process.
SCOTT HARRIS: And as I understand it, many of the people who use those absentee ballots are overseas military forces, right?
MARJORIE COHN: Yes, absolutely. Yeah. And their votes would not be counted.
SCOTT HARRIS: So that Watson case is likely to come down in June. Would that impact the November election or is it too close to the actual election date?
MARJORIE COHN: Well, the ballots are already in many states are already printed and many states have already started voting. But then the question is, When do they have to be received to be counted? So it really could upend the November midterms if the Supreme Court comes down against the counting of mail ballots that are not received by Election Day and this is another development. Who knows when they’re going to come down with this decision. The end of the term is the end of June, beginning of July. But either way, it really could disrupt the midterms and disenfranchise untold numbers, millions of voters.
SCOTT HARRIS: Well, Marjorie, thank you so much for assessing what’s happened here with the Supreme Court. I think in one of the most disastrous decisions we’ve had—and there’s been many of this right-wing super majority Supreme Court—certainly a disaster by every definition of the word if you are a supporter of democracy and fair representation in our country. Marjorie, you want to leave our listeners with any websites where they can regularly find your articles, including the one we’ve been talking about, which again is titled, “The U.S Supreme Court, Race and the Right to Vote.”
MARJORIE COHN: Yes, that’s published on Consortium News and many of my articles are published on truthout.org. Also my website, they’re all collected at my website, marjoriecohn.com.
SCOTT HARRIS: Well, thank you as always, Marjorie, for being there for us and I certainly highly recommend these articles to get some analysis that’s really important at this moment and we’ll look forward to our next conversation, Marjorie. Thanks.
MARJORIE COHN: Thank you so much, Scott.
SCOTT HARRIS: Take care, too. Bye-bye. That’s Marjorie Cohn, professor emerita at the Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild.
