On Amicus this week, Dahlia Lithwick was joined by Marc Elias, who has litigated more election and voting cases than most of us can keep track of. He has done that in his capacity as the founding partner of Elias Law Group, a law firm committed to supporting voting rights, and as the founder of Democracy Docket, a progressive advocacy platform. Elias discussed the Alabama Legislature’s continued disregard for the Supreme Court’s decision in the big Voting Rights Act case of last term, the Wisconsin GOP Legislature’s current efforts to impeach a state Supreme Court justice before she has ever heard a case, and why such acts of pointed, defiant lawlessness are very much the point for Republicans seeking office. A lightly edited portion of their conversation follows.
Dahlia Lithwick: So, let’s start with Alabama. The state just straight up seems to be nullifying the result in Allen v. Milligan, the Supreme Court decision upholding a lower court’s ruling that struck down Alabama’s new congressional map for failing to comply with Section 2 of the Voting Rights Act. And now we have Alabama’s Republican-controlled state Legislature just flat-out refusing to enact a new map. What are we calling this? Nullification? Shruggy emoji? Constitutional crisis?
Marc Elias: I think it is the modern-day equivalent of George Wallace standing in front of the schoolhouse doors. Now there’s good news and bad news in that. Let me start with the good news: The good news is that eventually, George Wallace got moved from the schoolhouse doors. And likewise, here, the state of Alabama has been given the opportunity—an order, so more than an opportunity—to draw a compliant map, a map that creates two, rather than one majority-Black district. If the Legislature refuses to do so, which they have, the court is just going to draw its own map, and they’ve already taken the steps to do that. So, the good news is there will be a lawful map in time for 2024.
But I think you need to take a step back and realize that what happened in Alabama was pretty extraordinary. Alabama drew a map that violated Section 2 of the Voting Rights Act, a law passed in 1965, amended in 1982. The test for Section 2 violations has been pretty well settled since the 1980s, yet Alabama violated it. How clearly did they violate it? Well, a three-judge panel, including two judges appointed by former President Trump, unanimously agreed it violated Section 2. Alabama then, in a cynical effort, said, “Well, you know what? We think we should go to the Supreme Court.” The Supreme Court said, “Yep, that’s the test. That is the test that we’ve had since the mid-1980s. It’s still the test today, and Alabama, you now need to go comply with this court order.” And then what happens is what you described. And it’s really astounding. If anyone thought the days of states like Alabama just openly defying court orders were behind us, they’re wrong. And the troubling part is that there was a time, not that long ago, that if you were a Republican legislature and you defied a court order, it was bad for your politics. Within the Republican Party now, violating court orders, breaking criminal laws makes you more popular. So if you’re an Alabama legislator, of course you’re defying the court order. What would be better for your base than that? So that’s our problem.
Joan Biskupic had a piece on CNN on Friday which said the Alabama Legislature just thinks that they can flip Justice Kavanaugh; that they read his little carveout saying there’s a time stamp, actually, and the need for remediation of racial disparities is somehow going to evaporate. And they’re just counting on kicking it back to the Supreme Court and flipping Justice Kavanaugh.
I think there are two possible theories as to what they’re doing: One, which you just articulated, is that they have a long-shot legal theory that basically is an extension of their original legal theory, which is: The Supreme Court will just side with us because they’ll side with us. Right? We’re going to give Justice Kavanaugh another opportunity to just side with us on whatever cockamamie theory that they think up. That’s kind of Option A, and that’s really cynical.
Option B is in some ways more dangerous for democracy. It is that no, they actually don’t think they’re going to flip Justice Kavanaugh, but they do think that the political theater of being in defiance of a court order redounds to their benefit. They think that aligning themselves with an indicted president is to their benefit. You hear Republicans say Donald Trump gets stronger by being criminally indicted. They’re still litigating the 2022 election. In the Republican Party, there is now a benefit to be gained by never acknowledging that you’ve lost and by using the loss of litigation as further proof that you were right somehow.
I want to pull on what you just said about Alabama, because the exact same game is playing out in Louisiana, in Georgia, in Florida. We had a Florida court ruling against maps that were pushed by Gov. Ron DeSantis last week. It’s the same thing. The lawlessness is its own objective. This is not just about maps. This is about democracy.
How you draw maps defines, to an alarming degree in this country, how you are represented—with the partisanship and the polarization of the electorate combined with computer technology, artificial intelligence, big data, all of that, people are able now to draw maps that will perform in favor of one party or the other, basically 100 percent of the time. That same ability can deprive minority voters of the ability to elect the candidates of choice almost 100 percent of the time because they are the minority. So in 1965, we had to make sure that minorities are not always on the losing end of voting laws and redistricting laws. And that has been a fundamental tenet of American democracy ever since. Ronald Reagan reauthorized the Voting Rights Act and expanded it. It was reauthorized in 2006, 98 to 0 in the Senate. George Bush signed it, the business community endorsed it, Walmart led the charge to endorse it. And what’s happened since then is that Republicans now oppose the Voting Rights Act, 100 percent of the time.
Now I’m going to play out a thought experiment. I want you to think back to the Jan. 6 hearings, and I want you to think about who was the most pro-democracy, moderate Republican in Congress. That person voted against the John Lewis Voting Rights Advancement Act. They all voted against the John Lewis Voting Rights Advancement Act. They all voted against the Freedom to Vote Act. They all voted against the For the People Act. There are more Republicans in the House today with an “F” rating from the NRA than support voting rights. So the thing you need to understand is that you can be a Republican in good standing and be for free trade or fair trade. You can be a Republican in good standing and even oppose the NRA. The one thing you can’t be is in favor of voting rights.
So what you are saying is that you can be anti-insurrection and still be completely for vote suppression. So what do folks need to do in order to solve for everything we’ve just described, including a culture that increasingly rewards lawlessness?
So look, No. 1, our election systems work, so people should vote, because their vote will count. And if they don’t vote, then their vote won’t count. The biggest thing I tell people to do is make sure you are registered and make sure you know how to vote and tell your friends that they need to register to vote and that they need to vote.
The second thing is trying to solve the larger problem, and I don’t have a solution to it, is this is what everyone can do to solve that problem. Everyone reading this has a town square. It may be your social media. It may be your bridge club, it may be your dinner table, it may be the lunchroom break conversation that you have. But everyone’s got a town square and everyone needs to tackle the problem of democracy, not hide from it. So I’m going to ask you to have that conversation, have it respectfully, but stand up in your town square and say: It is not OK to suppress people’s right to vote. It is not OK for Alabama to be disregarding a court order to prevent black voters from exercising political power when a court has ordered them to. It is not OK for the state of Ohio to try to frustrate a ballot initiative that clearly has overwhelming support, and it is certainly not OK for the Wisconsin Legislature—because they don’t like who won a free and fair election, that was a landslide that nobody is arguing was not accurate—it is not OK for them to use and abuse their power to impeach her, to frustrate the judicial system of the state of Wisconsin. Stand up and say it’s not OK. Tell your neighbors it’s not OK. Tell your classmates, your customers, your clients, your co-workers, that that’s not OK. Because when I say we need to change the culture, this is how we’re going to change the culture. We’re not going to change the culture through the courts. I can win a case here and make it a little better, make it a little worse. But we’re only going to change the culture if the people who are proponents of democracy are as committed and as loud and as willing to confront authoritarianism and anti-democratic fervor as the people on the other side.