▶ 0:25:33>>, hearing and the subcommittee and the constitution to order. The topic, implementing the supreme court command against racial gerrymandering. The hearing will examine the supreme court recent decision in louisiana versus callais, what he requires of state courts and the department of justice and how congress should understand the decisions for radicular -- redistricting equal protection in the voting rights act. My statement, then senator welch will give his.
▶ 0:26:00We will introduce the witnesses and hear their opening statements before proceeding to the five minute round of questions per senator. 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. For too long, section two was stretched beyond its test, its history in the constitution itself.
▶ 0:26:28What began as a great civil rights statute became a racial sorting machine. States were told unless they carved citizens into district by race, they were violating the law. When they did with the courts and activists demanded, they were told they violated the constitution. That was the trap louisiana faced in callais, draw a map without a second majority black district and get sued under section two, draw the second majority black district and get sued for racial gerrymandering.
▶ 0:26:59This is a racial sorting regime, not the rule of law. The supreme court finally said enough. Louisiana written, the court restored its acts to the proper constitutional will. Section two prohibits racial discrimination in voting. Protects every citizen's right to participate equally in the political process, but does not require racial proportionality. It does not require racial quotas.
▶ 0:27:26It does not require states to draw congressional districts as of americans were permanent members of racial blocks. The old regime did real damage. It produced bad doctrine and worse maps. Districts stretched across whole regions, split communities, ignored ■geography, treated voters as racial inventory.
▶ 0:27:48Compactness, integrity, county lines were shoved aside to satisfy racial targets imposed by litigants, activists, and judges. And the old regime distorted our political system. Lyons section two regime had to democrats a systemic advantage. It let democrat lawyers and li groups launder partisan demands through the language of civil rights and allowed them to say this map does not produce a racial outcome we want, therefore it is illegal.
▶ 0:28:21That theory converted the voting rights act into a shield against discrimination, into a sword for partisan political power. Deputy white house chief of staff in homeland security adviser stephen miller this way. The combination of a legal alien apportionment, flawed censuses, and constitutionally recently gerrymandered districts create an artificial 40 plus house seat advantage for democrats.
▶ 0:28:49There racial sorting regime was disastrous for the constitution's guarantee of equal protection over laws. As justice thomas explained in his concurrence in callais, the old section two regime led legislatures and courts to systematically divide the country into electoral districts along racial lines. Blacks were drawn into black districts and given black representatives, hispanics drawn into hispanic districts and given hispanic representatives and so on.
▶ 0:29:17That old regime was based on the premise that took quote justice thomas again, members of a racial group must think alike and that their interests are so distinct from the rest of the people that the group must be divided into separate electoral districts, allocated a proportion of political power based on race and providing a separate body of representatives.
▶ 0:29:44As justice thomas rightly points out, there are few devices that can be better designed to exasperate federal -- racial tensions and that race-based premise that the consciously segregated districting system be constructed in the name of the voting rights act.
▶ 0:30:04As justice thomas correctly concluded, the old regime of racial balkanization and racially designated districts was repugnant to any nation such as ours that strives for the ideal of a colorblind constitution. That it the regime that callais begins to dismantle. But this hearing is not about applying the court. The court has done its part. Enforcement has to happen now. Because unconstitutional maps are still in effect. Look at california.
▶ 0:30:35State law created an independent redistricting commission, but governor newsom and california democrats overrode the process and hired a mapmaker to retry congressional districts. That mapmaker publicly declared that the number one thing he started to think about when drawing the new california congressional map was creating latino majority districts.
▶ 0:31:01Where still, he tried to rationalize racial discrimination as essential for ensuring that already racially gerrymandered seats, section two voting rights seats were bolstered and made most effective. That is the whole problem. Race was used as a districting tool to intentionally discriminate in the voting rights act was used as have the excuse.
▶ 0:31:24After callais, that excuse is gone callais. Governor pritzker called an abomination, which tell you exactly how much illinois has writing on the old regime. Illinois even bill race into the machinery of redistricting. It's voting rights act hard wires racial sorting into redistricting by requiring mapmakers to create and preserve districts based on minority voters ability to elect candidates, influence elections, or form racial coalitions.
▶ 0:31:56Governor pritzker signed the maps, he praised plans designed to preserve clusters of minority voters with collective electoral power. That is an explicit gerrymandering in the kind of racial spoils system that our constitution prohibits. California and illinois are not cited issues, they are test cases. California shows how reese can be smuggled into a partisan gerrymandering under the label of voting rights act compliance.
▶ 0:32:27Illinois shows how race first redistricting can be embedded directly into state law, both should be reviewed immediately. These maps do not become constitutional because they are already in use, they do not survive because politicians call them voting rights maps, and they will not disappear on their own. The department of -- of justice has an obligation to act. The civil rights division should not sit by while racially gerrymandered maps sit for another election.
▶ 0:32:55Calling on assistant attorney general harvey doing to move immediately, review maps drawn or defended under the old regime, identify districts built on unconstitutional racial sorting, intervene where appropriate, file statements of interest where appropriate, and support plaintiffs in supporting callais in court. Private plaintiffs have a role, bring the cases now. Challenge that you legal maps now. Ask the courts to act now. We are heading into an election cycle.
▶ 0:33:24Every election held under unconstitutional map compounds the injury. Every illegal district that remains in place distorts the house of representatives and denies american districts drawn under the constitution rather than racial arithmetic. The left will say this gus the voting rights act, it does not. It saves the voting rights act from becoming with the constitution forbids, a command to discriminate.
▶ 0:33:50The voting rights act protects citizens from racial discrimination, it does not authorize government to commit racial discrimination in their name. That is the callais lesson of callais, and why the hearing matters. Racial gerrymandering is illegal, a legal maps are still in effect. The department of justice must enforce the law. Plaintiffs must enforce the law. Congress must make clear that no state, no court, no activist group gets to divide americans by race and call it democracy.
▶ 0:34:21>> Mr. chairman, thank you very much for calling the hearing. I believe this may be the most important topic of discussion in this congress. Certainly in my time in the U.S. senate, it goes to the heart of the right of each and every citizen to select who their leaders will be. I got involved in public service back in the 1960's.
▶ 0:34:46In 1967, I dropped out of college and hitchhiked to chicago and worked with a community organization who was fighting housing discrimination. I remember then being so moved by people on the receiving end of discrimination and their determination and their generosity of spirit, despite what they had suffered. They had endured widespread discrimination that was totally legal. And these are folks who just recently had gotten the right to vote.
▶ 0:35:15And that struggle for civil rights, which was centered about getting the right to vote for people who legally were denied access to the vote. Was recognized by martin luther king when he said so long as I do not firmly and irrevocably possess the right to vote, I do not possess myself. I cannot make up my mind, it is made up for me. I cannot live as a democratic citizen observing the laws I have helped to enact.
▶ 0:35:45I can only submit to the edict of others. The voting rights act did not come out of nowhere, it came out of a long history of legislated discrimination. I do believe that the louisiana versus callais turns back the clock on that hard-won progress. We are already seeing states from louisiana to south carolina and tennessee have called for redistricting ahead of midterm elections in six months.
▶ 0:36:16Millions of voters will be impacted. I believe the decision was wrong in the merits. I believe there's a trail of decisions that have led to a very remarkable and troubling moment about the erosion of citizen power, legislative power, and the expansion of executive power.
▶ 0:36:40In 2010, citizens united opened the door to unlimited spending, and billionaires spend billions of dollars effecting our elections, really squeezing out access for every day citizens. Republican and democrat. And remove the oversight of potentially discriminatory state voting restrictions. -- common cause, that was 2018 the court did not act on partisan gerrymandering.
▶ 0:37:11Literally making it illegal for their to be partisanship as the basis of a new map. And of course, in front of the united states, the court basically put the president above the law. The court has gotten one of the last remaining enforceable sections of the voting rights act. It is going to leave many communities of color with few enforceable tools to fight unfair maps.
▶ 0:37:39Equally concerning is how the legislative branch has allowed and to happen. This is the branch that is supposed to be the most responsive to every day citizens in all of our districts. Congress reauthorized the voting rights act on a bipartisan basis, strong republican and democrat support, five times.
▶ 0:38:04The supreme court reached its recent judgment based on his own assessment that the protections codified by congress by legislators who had been duly elected by citizens all across this country, the supreme court substituted its judgment about discrimination in its existence for that of the legislature. The effect of this decision I do believe will be monumental for many of our fellow citizens in the south, particularly.
▶ 0:38:35In louisiana, one third of the population is black, joe biden 140% of the vote. Callais, louisiana has proposed a map that will only have one african-american representative in congress of the six house members. South carolina, very much the same. A quarter of the population is african-american. Redistricting would leave south carolina with literally no black representation out of 10 congressional districts.
▶ 0:39:08And whether the supreme court intended to or not, by blessing partisan gerrymandering, while getting the voting rights act, the roberts court has achieved the same outcome as jim crow laws in the south had done generations before. It has removed african-american representation on a massive scale.
▶ 0:39:38That is not an assertion, that is a fact. Mr. chairman, I believe we are at such a crossroads, in a race to the bottom. And I know you believe this, those of us who have different points of view should compete for support with a battle of ideas. We have to get the boat of people we want to support us and sent us here to congress.
▶ 0:40:08We should be competing on the basis of our ideas, not on how clever we can draw the map to suit our own political bias. I believe it is time for this senate to stand up and banned partisan gerrymandering. I believe it is time for this senate to ban mid decennial redistricting.
▶ 0:40:38Both of those things are accelerating the race to the bottom and is interfering with each of us from competing with our competitors in each election on the basis of our ideas. It is a race to the bottom because texas did it and it started with the redistricting. California followed, the justification is they did it, we have to do it.
▶ 0:41:03Our democracy depends ultimately on protecting and preserving the right of individual citizens to pick their politician, not intensifying the control politicians have about who the voters are that they will permit to be involved in the election. I yield back. >> thank you, senator. Senator durbin? >> thank you, Mr. chairman. It is a basic question, isn't it? Is it over?
▶ 0:41:31Is discrimination really over in this country? We are sensitive to the fact where we have been, we had a civil war, did we not, over the issue of seizure -- slavery and states rights? I thought we resolved that the union prevailing. The question today is what has happened since?
▶ 0:41:49I can remember an experience I had as a college student, I was 8 -- at georgetown university, and basically several of us said we hear there is going to be a march in selma, alabama. Let's go down and join them. We were a little bit worried, the year before, three civil rights workers were killed in mississippi. These white guys with license plates from the north wondered if it is smart to go down there.
▶ 0:42:18In the end, we decided not to go. I regret it ever since. I will tell you what happened in the meantime. I was elected to the house and senate. In the senate, a man by the name of john that was used to take us down to selma, alabama to walk down the evan pettus bridge and repeat steps on that day. I will never forget that morning. It was a sunday morning and I had to leave to come back to washington. It was john and myself walking down the edmund pettus bridge.
▶ 0:42:49He pointed to the spot where they almost killed him, fractured his skull and almost killed him. What was the selma march all about? It was all about this. There were 15,000 black people living in selma, alabama. Do you know how many were registered to vote? 335. Out of 15,000? What was wrong with that? They could not pass the literacy tests. They could not pass the questions that john kennedy asked nominees from the federal courts.
▶ 0:43:18They could not explain what a letter of marque and reprisal was. Therefore they were denied the right to vote. That was not just in selma, it was in the south over and over again. Many places in the north, discrimination just as bad. The fact was passed after the selma march. On a bipartisan basis.
▶ 0:43:39We used it in extreme situations to try to give african-americans and any others discriminated against a chance to be registered to vote. The declaration from the supreme court in this case as well as the political position is we don't need it anymore. We don't have discrimination anymore. I do believe that is true.
▶ 0:44:01I wish it were true, a basic question we have to ask ourselves is whether or not we are denying to some americans who are qualified and legally eligible to vote an opportunity to do so. I think in this hearing we get into some aspects of it. But I deeply regret we have reached a point where we will have a quote from stephen mitchell to explain where we are here today. I know him. I think many people here know him.
▶ 0:44:29He does not represent to me a balanced approach to our constitution and rights. Some Mr. chairman, I'm afraid this hearing is not off on a good foot as far as I'm concerned, but I will be on the record to clearing me. Walking across the admin pettus bridge, I realized what was at stake back in 1965, still estate today. We have to go that extra step to guarantee americans the right to vote when they are denied that opportunity.
▶ 0:44:59To do otherwise is to deface our constitution. I yield back. >> I want to introduce the witnesses. The first majority witness is ed di greim, where he focuses his practice on complex litigation, free-speech, and election law, internal investigations, and whistleblower claims. He's been recognized as a go to lawyer on constitutional and policy issues and was named constitutional election law trailblazer by the national law journal in 2020.
▶ 0:45:29He received his law degree from harvard law school in 2002 and his bachelor's degree summa cum laude in economics and political science from the university of missouri. He successfully argued louisiana on behalf of the provided plaintiffs. Will chamberlain serves as senior counsel at the article three project after graduating from georgetown university law center in 2015.
▶ 0:45:55He joined quinn, emanuel, and -- anne sullivan in los angeles as an associate. He worked attorney that the federalized institute comprised action litigation. In 2019, he revived human events, the nation's oldest conservative magazine, where he served as publisher and editor-in-chief. >> thank you. I want to welcome Mr. todd coxe, associate director of counsel at the naacp legal defense fund.
▶ 0:46:26And as associate director counsel, he works to execute their strategic direction of the organization's policy and external work. He previously worked for five years in philanthropic work. And before that, served as the director of policy. During the obama administration, he was the director of the office of communications and legislative affairs at the U.S. equal employment opportunity commission.
▶ 0:46:52He is a prior graduate of princeton university and the university of pennsylvania law school. >> it is a tradition of this committee to swear in the witnesses who testified before it. Please stand and raise your right hand. Do you swear that the testimony you are about to give is the truth, the whole truth, and nothing but truth so hope you got? Thank you, be seated. We will start with you, Mr. greim.
▶ 0:47:22Mr. Greim: Ranking member welch, members of the subcommittee. Thank you for the opportunity to testify before you regarding the enforcement of the supreme court decision in louisiana versus callais. Callais was one of the most significant election law decisions, one of the most significant 14th and 15th amendment decisions of the past several decades.
▶ 0:47:49Mr. Greim: It should end the drawing of legislative districts based on race. It also ends in unnecessary tension in the law. Understanding the source of that tension is necessary to properly implement callais, because callais is a resolution of that tension. The tension was between the mandate of the 14 amendment and enforcement of the 15th amendment.
▶ 0:48:16Mr. Greim: It arose because majority-minority districts were forcibly created, either by states or by courts, every time it appeared that they were even somewhat possible. Courts created them without finding that the reason the district had not been created was because of intentional racial discrimination and trying districts.
▶ 0:48:34Mr. Greim: Callais solves its tension by clarifying an obvious misunderstanding in the courts, it clarifies implying the voting rights act, majority minority districts can't be intentionally created, created with intent to make such a district without making the kinds of showings the 14th and 15th amendment already required.
▶ 0:49:00Mr. Greim: If a state or court intends to rely on section two to create or preserve a majority district, they must carefully consider three points in applying the thornburg versus jingles precedent. I will not go through with the regional test is. I want to callais focus on what clarified.
▶ 0:49:23Mr. Greim: First of all, the majority minority district cannot be drawn with race as a districting criteria. The district must meet traditional and nonracial redistricting criteria. Including any nonracial political goals of the state. Second, racially polarized voting must be shown to stem from racial animus.
▶ 0:49:48Mr. Greim: The desire to vote for or against someone because of their race and be separated by the circumstance or different races vote for different parties because of different -- with where it was drawn.
▶ 0:50:13Mr. Greim: Requiring truth of these three factors ensure is the 14th and 15th amendment operate as a kind of mesh, a seamless web of protection for voters. It resolves the tension it had developed. It is faithful to precedent. There was no jingles of authority for the principal that racial intent doesn't matter in polarized voting.
▶ 0:50:40Mr. Greim: And wait versus register, an earlier case the senate side of the nets report in 1982 with the last amendment was not purely an effects-based tests. In my view, the only proper application of callais is to identify the districts that would fail under the supreme court clarified factors.
▶ 0:51:05Mr. Greim: Districts that fail this test violate the 14th amendment in the 15th amendment. Applying these principles to existing districts is important to note important limitations. Districts are not suspect and subject to challenge because they are majority minority districts.
▶ 0:51:26Mr. Greim: Districts that have necessarily had to be drawn to remedy recent discrimination based on race should survive until the underlying racial discrimination dissipates. Finally, it is important to implement callais as expeditiously a sound administration allows given the election deadlines and administrative structures. Federal courts may have a limited role to play in joining unconstitutional naps during the current cycle. There are notable exceptions.
▶ 0:52:01Mr. Greim: I want to make one final note not in my written testimony. But I want to point out three-judge courts are granted jurisdiction under 28 usc 2284 over a lot of these racial gerrymandering claims.
▶ 0:52:18Mr. Greim: Hosting for senate should expand the 2284 jurisdiction with claims that will stop form shopping and allow uniform enforcement of the 14th and 15th amendments. >> ranking member welch and members of the -- chair schmitt, ranking member welch, members of the committee.
▶ 0:52:49Mr. Greim: Good afternoon. I'm associate director counsel for the legal defense fund. Since lef's founding by thurgood marshall in 1940, we have worked to expand voting rights for black americans. The voting rights has been central to that effort and we litigated most of the seminal cases is introvert in its scope.
▶ 0:53:05Mr. Greim: Our journeys presented oral argument in allen versus milliken in just three years ago, the supreme court applied section two and twice in the callais case in which they uphold the landmark law while destroying it. The decision has already been destructive for black communities across the country. I want to put our current moment in historical context.
▶ 0:53:28Mr. Greim: As we mark 250 year of the declaration of independence and the supreme court is once again kind cut congress's strongest action to implement the vision of the quality in the reconstruction amendments. This hearing is not truly about a decision, but rather a more fundamental set of questions. Will we rewind history, return to a time when democratic presentation were synonymous to white supremacy and racial hierarchy?
▶ 0:53:53Mr. Greim: Will we push forward and receive the truly inclusive multiracial democracy our nation can and must become? What will the next 250 years look like and what will the role play in 14th -- forging this path? The reconstruction amendments that followed the civil war were enacted with an explicit purpose to end racial hierarchy and create a multiracial democracy.
▶ 0:54:15Mr. Greim: After reconstruction, a backlash and as the redemption, which pushed back political and social equality and quickly erased those gains in the south. Embedded by infamous decisions such as plessy versus ferguson. The resulting jim crow era endured throughout the first half of the 20th century until the voting rights act finally gave us a multiracial democracy. But the backlash came back.
▶ 0:54:42Mr. Greim: The white power structure adapted and shifted from discriminatory barriers to systems drawing district lines that remove the voice of african and preventing them from being able to exercise -- of choice. That is known as vote dilution. The court was on the wrong side of history and.
▶ 0:55:06Mr. Greim: Undercutting protections against dilution in 1980 by requiring voters to provide unfair mass for crafted with discriminatory intent. Congress responded swiftly and forcefully, to correct the supreme court's overreach and clearly established a results-based test for providing racial discrimination under the voting rights act. Over the past decade, the roberts court has eviscerated the voting rights act and shelby county versus holder, drawing of versus d&c, and now callais.
▶ 0:55:36Mr. Greim: The supreme court substituted his views of the congress as considered judgment, repudiating the amendments and making discriminatory maps almost impossible to challenge. Selling is the state or locality defenses map on partisans grounds -- partisan grounds or other grounds, that it deems appropriate. Thereby entrenching discrimination against minority voters. Perhaps the most aspect is the fact that post-racial america is -- to support its desired ends.
▶ 0:56:03Mr. Greim: Every day, black americans feel the sting of racism in our lives, the ongoing racism profamily finally shaped the landscape of opportunity, including access to fair representation and political power. Without evidence, the roberts court wishes this world away, pretend we are a nation that has already achieved our highest ideals. This is a present reality, not relic. Courts have documented it extensively. Not decades ago, but currently.
▶ 0:56:26Mr. Greim: Callais has unleashed chaos in the 26 elections currently underway and cut fair representation for black voters. News coverage is focused on work it -- I want to callais inpex black or presentational school boards, city councils, county commissions, and state legislatures. The most important victims of this course overreach our elected officials -- are not elected officials, but other voters of color denied the opportunity to elect candidates of choice.
▶ 0:56:56Mr. Greim: One thing the decision did not do with shift the racial gerrymandering law. Callais does not call into question the constitutionality of maturity districts or the districts I give voters of upper -- opportunity to elect candidates of choice. I would caution those who seek to over read callais to all that congress by targeting the majority minority districts they themselves provide that opportunity, because it might be just committed three intent. There is a path forward. Black americans always push the nation toward its highest ideals.
▶ 0:57:24Mr. Greim: Three days ago, I was in alabama witnessing thousands of folks gathered to re-create the bloody sunday marsh and light a path to a brighter future. Since 2013, the court has demanded -- this metal key parts of the voting rights act and that cannot stand. Congress must respond to the court overreach and ensure this body fulfills its constitutional responsibility to protect the rights -- right to vote. States must step up to protect their own voters from discrimination and people must fight back with mask mobilizations as we saw and at the ballot box.
▶ 0:57:56Mr. Greim: The question I imposed needs to be answered by each person in this room. Those with the most power, members of congress have the most responsibility. I'm happy to answer questions. >> Mr. chamberlain?
▶ 0:58:09Mr. Chamberlain: Thank you for the opportunity to testify today. On the supreme court's decision in the louisiana versus callais. It held louisiana's congressional map, which added a second majority black district was an unconstitutional racial gerrymander. On clear constitutional principles. As justice alito explained, which created the congressional map in question, triggered scrutiny because of the underlying goal was racial.
▶ 0:58:37Mr. Chamberlain: The scrutiny applied, louisiana had to demonstrate its use of race was narrowly tailored to fully compelling governmental interest in those interests existed. Section two itself targets discrimination and is not license racial to pre-minority districts. It is not confined to louisiana or anything a part of your region. It binds every legislature, redistricting commission, and court in the country.
▶ 0:59:02Mr. Chamberlain: Any map in which race was used as a factor is perceptively unconstitutional. California and illinois are cases in point. Illinois, the democratic-controlled general assembly, produced a congressional map widely recognized as one of the most bizarre gerrymander than the nation. If it were purely partisan, there would be no federally constitutional question.
▶ 0:59:21Mr. Chamberlain: As explained in the recently filed lawsuit, the illinois law requires line drawers to use racial demographic data to preserve clusters of minority voters under the guise of voting rights act compliance. The district fails strict scrutiny under callais. California's new bizarre gerrymander also fails the callais test, his new map adopted after the passage of proposition 50, is another part of bizarre partisan gerrymander.
▶ 0:59:48Mr. Chamberlain: Perhaps its most bizarre district is the second congressional district, which amended its to increase sausalito just across the golden gate bridge from san francisco, modoc county in the far eastern corner of the state. If anyone truly believes it is reasonable for those residents to be in the same congressional district, I might try and sell you the golden gate bridge. But as we discussed, partisan gerrymander's are constitutional, even if bizarre. The line are or used racial factors to draw their lines.
▶ 1:00:15Mr. Chamberlain: The map tractor, named paul mitchell, admitted as much publicly on multiple occasions. In a presentation, he stated that "the number one thing he started thinking about." when drawing the map was "trying a replacement latino majority district in los angeles." on x, mitchell boasted his new map would increase latino voting power, asian-american voting power, and add one more latino influence district.
▶ 1:00:43Mr. Chamberlain: These motivations are impermissible under our constitution and callais ensures map drawers can no longer use the voting rights act as an excuse for this odious racial being counting. States whose maps rests on these foundations have a clear duty. They should to acknowledge the districts are in constitutional and use them drawing race neutral criteria, respect for political subdivisions, or any other nonracial factors. The fact we are well into the 2026 election cycle provides no blanket exception from this constitutional obligation.
▶ 1:01:11Mr. Chamberlain: Special sessions can be convened, primary elections delayed, and candidate rates can be adjusted when necessary. On it is simply impossible to implement constitutional maps, state government should do everything in their power to pass maps for this year's election but don't discriminate on the basis of race. I welcome any questions. >> thank you very much. I will start with Mr. greim.
▶ 1:01:38Mr. Chamberlain: He heard accusations from some that the callais guts the voting rights act, is it accurate in your mind?
▶ 1:01:46Mr. Greim: Absolutely not. Callais brings the voting rights act back to the plain text of the law that was actually passed in the amendment in 1982.
▶ 1:02:04Mr. Greim: To read the voting rights act any other ways to either make it meaningless or make it unconstitutional and make it fail to be proportional to the 15th amendment. The law itself says we cannot have proportional representation, they cannot be a goal. Not a constitutionally permissible goal. That was not part of the compromise.
▶ 1:02:33Mr. Greim: So all that is going to happen, we are still going to be able to meet the goals of congress that was passed, instead of strict, clear and convincing proof of intent, the standard that law brought from earlier case law, which I would say is objective evidence of intent, even though it may be circumstantial, that can establish a section two
▶ 1:03:04Mr. Greim: Claim. If the conduct is still happening, you can bring that. You can bring a racial gerrymandering claim. You can bring a vote dilution claim. Under the 14th amendment directly or the 15th amendment without using section two. There are all kinds of ways to combat discrimination. We are losing is the rough proportionality section two had gone into. That is not losing anything. In fact, what we are losing is the very thing that caused racial gerrymandering to occur.
▶ 1:03:35Mr. Greim: >> Mr. chamberlain, I want to talk about california, the california map. He referenced my quote in the opening statement. There is evidence -- quotes -- that the mapmakers have talked openly about specifically creating a district based on race. Do you feel it is a vulnerable map? >> absolutely. If you use race intentionally and you have statements like that, it triggers scrutiny.
▶ 1:04:06Mr. Greim: That is exactly the kind of thing that the constitution says is odious, we should not be being counting and putting people into districts based on what race they are. >> moving to illinois, I have written this letter, I think these are the most obvious examples, there are more and I hope they are aggressive about this.
▶ 1:04:29Mr. Greim: If we are serious about making race and the reason why you are creating a particular map which is nearly discriminatory, he is a very important role here. And illinois, the law requires consideration and the statute requires consideration of crossover district, coalition district, influence district based on race and language majority status.
▶ 1:04:56Mr. Greim: Does that kind of a lotto mapmakers to think about racial categories from the beginning? >> that is exactly what it does. Under callais, that is not going to be constitutional. When people say that the voting rights act -- it is still there. It means this is probably a violation of the voting rights act because it is not aligned with our constitution.
▶ 1:05:19Mr. Greim: >> I don't on this off and, do you know how many other states have infused this sort of language in their statute, it bakes the cake about what the mapmaking is going to look like. >> not off of the top of my head. >> I will go back to Mr.
▶ 1:05:32Mr. Greim: Greaim, you touch from this point to make that the law still prohibits discrimination, intentional discrimination based on race. You cannot inhibit somebody's ability to vote based on their race. With the decision stands for is you cannot have this racial sorting as a criteria for creating districts. >> that is absolutely right.
▶ 1:06:01Mr. Greim: Not only do we have the strata constitutional prohibition, the voting rights act does work because it gives you a way to circumstantially prove intentional discrimination. There are many tools out there to combat discrimination. >> senator welch? >> thank you very much. I apologize for having to go and leave shortly in order to cast my vote.
▶ 1:06:28Mr. Greim: The chairman is going to have to do that now. I appreciate the witnesses being here, we all do. First of all, Mr. cox, I want to ask how the court's decision has affected the electoral process in the louisiana? >> it is thrust into chaos. We stopped to delay implementation of the supreme court order because the election had already begun.
▶ 1:06:57Mr. Greim: The state wanted to win the election under the plan that was in existence. Chaos has ensued. >> elaborate on your point -- I understand the election, they were supposed to have a may 6 game, and -- may 16, and they were already mailed out to overseas voters had as many as 100,000 citizens.
▶ 1:07:24Mr. Cox: That is right. As good lawyers do, we need to slow this down, we need to reconsider and have a conversation at the district court level to consider what is going on with the supreme court decision. The state wanted to run the election and continue the election anyway. It has caused a lot of confusion.
▶ 1:07:43Mr. Cox: We have folks on the ground monitoring the election, black voters on the rise, colleagues who are a group of lawyers and policy folks and organizers educating voters about their right to vote, opportunities to make sure they are registered to vote and can turn out. They are experiencing long lines, a lot of confusion regarding offices and the like.
▶ 1:08:07Mr. Cox: It has thrust louisiana into chaos, also a lot of redistricting, a lot of states into chaos because there is a rush in many of the states that are issued here in the deep south. >> thank you. Is there something that is just a little fishy about the legislature coming up with the map where 40% of the people in that state, african-american, end up where districts are designed that have the effect --
▶ 1:08:42Mr. Cox: Meaning there is no black representative? >> a couple of answers. The black voting age population is much less than 40%, it looks to be about 31%. >> 31% of --
▶ 1:08:56Mr. Greim: I think you have to know where the voters live. >> the people writing the maps know exactly where they live, that is the whole point.
▶ 1:09:06Mr. Greim: The point is that we are not assigning seats based on race, we are actually drawing -- >> but we are assigning seats, you can dispute this if you want, by the writers of the legislation. And this is true in louisiana and california. In the judgment of those legislators, the majority about where they can get the most votes. Isn't that right? >> that is right.
▶ 1:09:35Mr. Greim: That is our point, these are political considerations. >> what you're saying is you are full on board with partisan gerrymandering? >> the supreme court has made clear -- >> I'm asking you. You are on board? You think it is ok in this country that partisanship be the exclusive judgment upon which a majority in the legislature will design the districts in that state?
▶ 1:10:00Mr. Greim: >> what I'm ok with his the constitution actually gives this power to -- >> I'm not asking a lawyer question. I'm asking the citizen question. A democracy, there is a tug-of-war. What you dispute my point that when you have the majority in a legislator, and pick your legislator, democratic californian republican louisiana.
▶ 1:10:32Mr. Greim: Those legislators on whatever it is, the rules committee, go in the back room, they go over the maps, computer projections, and they have one goal. To make certain that the maximum number of r or d gets elected. If you are ok with that? >> as it is -- citizen and a lawyer, that is the system we have. What the constitution says. We want to change that. >> what has happened with that -- we have a race to the bottom now.
▶ 1:11:02Mr. Greim: You heard me suggest to my chairman, to my college that we ought to be having a panel of ideas as opposed to picking the voters that want to vote for us. You have a problem with that?
▶ 1:11:17Mr. Greim: My problem is -- in light >> do you have a problem with that? >> I'm asking as a citizen, we are in this total race to the bottom where legislators are doing -- we are going to be doing redistricting every two years. And every state if there is a change in the legislature, they will be doing the same thing. Isn't it time to get rid of partisan redistricting?
▶ 1:11:43Mr. Greim: Isn't it time for gerrymandering -- isn't it time to stop the every two-year cycle of redistricting?
▶ 1:11:49Mr. Greim: The genius of our country and our constitution is we allow the political branches to fail, we allow them to sometimes at the bottom and then they pay the price at the polls, that is what -- that is what should happen. >> the supreme court just interviewed with the decision this congress made, that they would focus on impact as opposed to "intent." there is no one here who can tell me what my intent is or senator hirono or senator lee. I yield back.
▶ 1:12:20Mr. Greim: >> I would like to continue with you. The U.S. constitution has signs to the states the power to redistrict. >> that is correct. >> it assigns it to the legislatures of those states. Most states, including mine, the state constitution also makes clear it is the state legislature that gets to make that decision. Somebody has to make it.
▶ 1:12:46Mr. Greim: If it gets made to someone's political liking, it will get criticized from one end, it will be someone else. The constitution says who gets to make it. Under the april protection clause on the 14th amendment, especially read in tandem with the 15th amendment, it is generally impermissible for the government to treat americans differently based on their race, correct? >> absolutely.
▶ 1:13:09Mr. Greim: >> such that when government does so, that action is subject to strict scrutiny, meaning it has to be tailored in order to achieve a compelling state interest. And students for fair admissions and in callais, the supreme court recognized there are very few instances in which strict scrutiny can be satisfied.
▶ 1:13:37Mr. Greim: For a lot of reasons, we found all the bases of which the government can treat people at this, it is fraught with all kind of historical peril. After the civil war we said we were not going to do this, so there are a limited number of circumstances that can be justified.
▶ 1:14:00Mr. Greim: For example, avoiding actual or imminent risk to serious bodily harm or death, remediating specific identified instances of past discrimination, is that right? >> correct, the sfa makes clear those are the examples. >> for the other side to have prevailed in, wouldn't the supreme court have had to have added a new compelling interest beyond that?
▶ 1:14:29Mr. Greim: Namely one, you almost have to make it a compelling interest to to achieve a predetermined number of majority minority districts, is that right?
▶ 1:14:40Mr. Greim: That's right, they would more or less have to amend the constitution to add that in.
▶ 1:14:46Sen. Lee: A lot of people are fun of saying they have got the voting rights act-- fond of saying they have got the voting rights act, they've discarded, annulled the voting rights act. But that's not true. They were interpreting it in harmony, as all statutes have to be, in a way they are not incompatible with other parts of the constitution.
▶ 1:15:13Sen. Lee: The equal protection clause of the 14th amendment, but also the 15 amendment's ban on intentional racial discrimination.
▶ 1:15:19Mr. Greim: That is correct.
▶ 1:15:21Sen. Lee: The supreme court also noted that an inference of racial discrimination would be strong if a state's redistricting algorithm, as the court put it, based on permissible nonracial vectors, "yielded numerous maps and districts in which members of a minority constituted a majority in the state did not provide a legitimate reason for rejecting those maps."
▶ 1:15:49Mr. Greim: That's right.
▶ 1:15:51Sen. Lee: Doesn't that suggest that the voting rights act has an important role to play in redistricting?
▶ 1:15:59Mr. Greim: Absolutely it does. It is a pathway for plaintiffs to show -- to try to create an inference that there was intentional racial discrimination. It is a step back from a requirement that they actually come in with direct proof of it. But that was the intent of congress in 1982, and justice alito's opinion walked through the ways you can do it.
▶ 1:16:25Mr. Greim: He lays out pitfalls that you have got to disentangle politics from race and several other things" have been doing over the years that completely -- courts have been doing over the years that completely muddled the inquiry.
▶ 1:16:36Sen. Lee: We talk about disentanglement. There is nothing I am more of -- I am not aware of any provision in the united states constitution that takes political considerations off the table. Gerrymandering this or that going to political considerations. What provision of the constitution does that?
▶ 1:16:54Mr. Greim: There is none.
▶ 1:16:56Sen. Lee: But there are at least two that say you cannot treat people there for me on the basis of their race other than in rare circumstances--treat people differently on the basis of the race other than in rare circumstances where strict scrutiny is warranted.
▶ 1:17:10Sen. Lee: Doesn't the vra -- wouldn't it become a backdoor way for litigants to bring federal challenges for partisan gerrymanderings to get their way, and that is something that the supreme court has identified as a political question, is it not?
▶ 1:17:26Mr. Greim: That's right, and the alexander case from a few years ago, the court raise that problem, that litigants were trying to get around partisan gerrymandering -- that cause of action is gone. They are trying to cast it as a racial issue.
▶ 1:17:41Sen. Lee: In the callais case, the supreme court made the observation that past lawsuits initiated under section two of the voting rights act involved situations that control for political preference where "white voters in heavily democratic areas ranked black candidates last among democrats." such situations suggest that the voting patterns were being driven by racial as opposed to political motivations, is that right?
▶ 1:18:08Mr. Greim: That's right, those things did happen. The voting rights act properly construed could take those up.
▶ 1:18:18Sen. Lee: To conclude, the situation in callais was entirely different, because there was nothing that would suggest that white and black republicans, or white and black democrats, have different voting patterns in louisiana. There is no indication that a black republican or democrat had any less chance than other members of his or her party to elect a preferred candidate, is that right?
▶ 1:18:44Mr. Greim: That's right. In the robinson case that preceded our case, the challenge to bring it --we challenge them to bring in the callais case, and they never did.
▶ 1:18:55Sen. Lee: Thank you, I see my time has expired. >> senator hirono.
▶ 1:19:01Sen. Hirono: Thank you, Mr. chairman. There is no question that racial discrimination exists in our country and in many places people would argue it still does. We have all kinds of ways to keep a people from voting. We've had poll taxes, we have had literacy tests. I think some places even required him to count how many jellybeans were in a jar. All kinds of ways to keep black people from voting. This happened. I don't think anybody can deny that that was going on.
▶ 1:19:32Sen. Hirono: As far as I'm concerned, there is a pattern now of voter suppression going on in our country right now. And the callais decision just plays into that by pretty much gutting the voting rights act, which was reaffirmed many times in a bipartisan way, acknowledging that this kind of racial discrimination occurred as a democratic country where everybody has an equal vote, that's not tolerable.
▶ 1:20:02Sen. Hirono: Suddenly it's a-ok just because the supreme court says so. It's not the entire supreme court, it's the 6-3 majority, which is an out-of-control supreme court majority where there is a pattern of this kind of decision out of this court. Just because this court says it so doesn't mean I agree with it. Meanwhile there is voter suppression going on.
▶ 1:20:26Sen. Hirono: You have an attorney general who sued at least 29 states to get these estates to turn over their voting rules. W--voter rolls. Why? What does the department of justice, what does the executive branch want to do with this voter information? Up to no good, I would say. There is this huge question pass the save act, it's more save trump act.
▶ 1:20:52Sen. Hirono: It would require millions and millions, all of us who are registered to vote, suddenly we would have to show proof of citizenship either through a birth certificate or a passport. Millions of people don't have either. Married people who take their partner's name will not have a name that matches their birth certificate. So what are they going to do? There are going to be millions of people who are not registered to vote. You think trump doesn't know that? Of course he does.
▶ 1:21:23Sen. Hirono: That is why he wants the save act be enacted, that is why republicans want the save act enacted. They know that millions of people will be literally disenfranchised by not even being able to allowed about. What this regime, once you do vote, they will challenge your vote, as they did in the last elections. Voter suppression is going on. It is very reminiscent to the kind of stuff that was going on but the voting rights act was intended to address, to fix.
▶ 1:21:53Sen. Hirono: And now you have a supreme court who says never mind all that, never mind all that history. Over three cases they succeeded in gutting the voting rights act. And don't tell me that the provisions of the voting rights act still exist, in a way that is pretty much unenforceable because of the racial gerrymandering.
▶ 1:22:16Sen. Hirono: Racial gerrymandering is going to be ok unless the legislative body that does the gerrymandering says, oh, by the way, we intended to racially discriminate. Are you crazy? You think that state legislators are going to be that overt about it? Of course not. You have the voting rights act that you claim is still intact. Please, give me a break. I have a question for Mr. cox.
▶ 1:22:42Sen. Hirono: Last weekend thousands of people, apparently you were among them, gathered to protest the supreme court's gutting of the voting rights act. The central locations for these protests were montgomery and selma, alabama, significant sites in civil rights history. Mr. cox, can you put this current moment into historical context for us?
▶ 1:23:04Sen. Hirono: Why is this moment reminiscent of when the last congressman john lewis, who many of us consider a friend and hero, over 600 peaceful protesters across independence bridge in selma, alabama?
▶ 1:23:17Mr. Cox: Thank you, senator hirono, for that question. I think it is reminiscent and reflects the fact that the voting rights act was not given to us, it was not bestowed on us. It came from the people. The joke I'm making is justice o'connor used to say there was more lawyers in D.C. than people. We sometimes feel that way in D.C. we are on the hill, lawyers are the center of the universe. It's just not true.
▶ 1:23:45Mr. Cox: If we are going to claim out of this destruction of voting rights act, the ultimate destruction of our democracy, it is going to require the people. Quite frankly, we are being gaslit. We have an extreme court, allies of the supreme court and allies of the callais case saying discrimination is over. Obviously not true. We have folks on the ground showing and discussing with us that law enforcement are at polling places. We have folks not only confuse, but being discriminated against right now.
▶ 1:24:13Mr. Cox: I have to say that to not have to ignore the fact that the people are demanding that congress respond, that congress restore the effects test that has been gutted and taken out by callais would be a mistake. Folks understand and know what is happening outside in the real world.
▶ 1:24:34Mr. Cox: They know, specifically black voters no, for they aren't going to return to the 1800s and what we all experienced, or what our ancestors experienced, that led to the voting rights act in the first place.
▶ 1:24:50Sen. Hirono: There is so much more to say, but I fear my time is up.
▶ 1:24:54Sen. Schmitt: I would point out that my colleague from what he questions whether people would be overly discriminatory in the words they say. I would point out the california mapmaker who said the number one thing he was focused on was creating a racially gerrymandered district. People do say it senator cruz.
▶ 1:25:14Sen. Cruz: Just a moment ago are colleague senator hirono said there is a lot more to say, and indeed she is right. I want to go back to her comments -- she began by saying we have a long history of racial discrimination in this country that is undoubtedly correct. And then she said, "we had poll taxes, literacy tests, we even had a test of how many jellybeans are in a jar." Mr.
▶ 1:25:39Sen. Cruz: Chamberlain, when senator hirono says we had poll taxes, I want to ask you who we is, and in particular what party was it that implemented poll taxes in the south?
▶ 1:25:51Mr. Chamberlain: I don't want to speak in every single case, but I'm confident it was mostly the democrats.
▶ 1:25:56Sen. Cruz: And what party was the literacy tests in place in the south?
▶ 1:26:00Mr. Chamberlain: Same answer, mostly the democrats. And
▶ 1:26:05Asen. Cruz: And what party had test of how many jellybeans are in the bottle?
▶ 1:26:09Mr. Chamberlain: The democrats.
▶ 1:26:11Sen. Cruz: What party was the founders of the ku klux klan from?
▶ 1:26:15Mr. Chamberlain: Pretty sure it was the democrats.
▶ 1:26:18Sen. Cruz: Nathan bedford forrest was a delegate to the 1860 democratic national convention. What party with the jim crow laws of the south --wrote the jim crow laws of the south?
▶ 1:26:29Mr. Chamberlain: The democrats.
▶ 1:26:32Sen. Cruz: On this side of the we are members of the republican party. Who was the first republican president?
▶ 1:26:38Mr. Chamberlain: Abraham lincoln.
▶ 1:26:40Sen. Cruz: The republican party was founded to oppose slavery. We came into existence because slavery was a grotesque people and it was president lincoln, the first republican president, who signed the emancipation proclamation, who won the civil war, and that results in the freeing of the slaves and the passage of the 13th, 14th, 15th amendments. Fast-forward to the civil rights era.
▶ 1:27:06Sen. Cruz: O'connor, -- bull connor, one of the most noxious the racist politicians. What party was he from?
▶ 1:27:12Mr. Chamberlain: He was a democrat.
▶ 1:27:15Sen. Cruz: The democrats for the entire history of their party have been a party based on racial discrimination. They affirmatively embrace it. Th supportey -- they suppor it. Mr. greim, is discriminating based on race consistent with the united states constitution?
▶ 1:27:36Mr. Greim: No.
▶ 1:27:37Sen. Cruz: What is the 14th amendment say by discrimination based on race?
▶ 1:27:41Mr. Greim: It is prohibited.
▶ 1:27:44Sen. Cruz: What is the 15th amendment say but discriminating based on race, and in particular drawing congressional winds and explicitly discriminate based on race?
▶ 1:27:54Mr. Greim It Is Prohibited: .
▶ 1:27:56Sen. Cruz: Now, the democrats are fond of telling this story that is -- I wish I could find a kinder way to say it -- a flat out lie. That without discriminating based on race, that no african-americans will be elected and no hispanics will be elected.
▶ 1:28:19Sen. Cruz: Indeed, there was one fellow online who was a vocal left-wing spokesperson who tweeted out, "I f I'm advising anybody to run for president, they sure as hell better have a solution of how you make sure it is not another 100 years before another black person can represent south carolina." that is a typical democrat statement, that we cannot elect a black person in south carolina without discriminating based on race. I want to ask you, Mr.
▶ 1:28:48Sen. Cruz: Chamberlain, who is the junior senator from south carolina right now?
▶ 1:28:52Mr. Chamberlain: That would be tim scott.
▶ 1:28:54Sen. Cruz: I will tell you what I said online. "hey, grok, who is tim scott, and why do democrats think he is in black?-- isn't black?" was tim scott elected because of gerrymandered district?
▶ 1:29:13Mr. Chamberlain: No, he won statewide.
▶ 1:29:16Sen. Cruz: He won statewide. By the way, the democrat position is you can only elect african-americans in a gerrymandered district. Burgess owens, african-american, injected to a majority white district in the state of utah. Byron donalds, african-american, ejected by majority white district in florida, is republican. Byron james, elected in a majority white district in michigan, he is a republican.
▶ 1:29:44Sen. Cruz: My own congressman, wesley hunt, who represents me in the house of representatives, majority white district, he is a republican. And yet in the democrats' world, you were not black if you are not a liberal democrat. By the way0-0 there is an effort--there is an arrogance to african-american voters. By the way, they have that same arrogance to hispanic voters.
▶ 1:30:14Sen. Cruz: I am proud to be the first hispanic to represent the state of texas in the united states senate. Mr. chamberlain, in my election in texas, was I elected in a gerrymandered district that could only elect a hispanic?
▶ 1:30:28Mr. Chamberlain: No, you were elected statewide.
▶ 1:30:33Sen. Cruz: Discrimination based on race is wrong. Final question, the democrats are clutching their prose that seats drawn to elect liberal democrats in the south are going to go away. You make get black republicans in tennessee. They are freaking out that a liberal white guy who was a democrat is likely going to lose his seat to an african american woman who is a republican and they say that is horrible racial oppression.
▶ 1:30:58Sen. Cruz: My final question is this -- if you look nationwide, which party has agreed justly abused-- egregiously abused gerrymandering for decades? Both parties are guilty of it, but who is been the worst offender? Taken of england, take massachusetts--take new england, take massachusetts, take,, take vermont, take new hampshire. How many republicans are elected from all new england in the house of representatives?
▶ 1:31:28Mr. Chamberlain: Zero.
▶ 1:31:30Sen. Cruz: They have drawn every district in a naked gerrymandered and yet they are upset that their illegal pursuit of power is stopped by the supreme court that is enforcing the constitution and preventing the racial gerrymandering discrimination their party is built on.
▶ 1:31:44Sen. Schmitt: Senator --
▶ 1:31:48Sen. Hirono: Point of privilege. I feel personally aggrieved to sit here and be elected by my colleague from texas. This reminds me of the time when he was first elected to the senate, and the committee had a hearing on gun safety, and he felt a need to lecture dianne feinstein, who was a leader on gun safety legislation, and he took that opportunity to lecture dianne feinstein about gun safety and her leadership on the issue.
▶ 1:32:18Sen. Hirono: She said to him something along the lines of "I did not sit here on this committee" for however many years she did "to be lectured by you." why don't you stop lecturing the most mos rest of us? Just because you think you are the smartest person in the world does not mean most of us agreed.
▶ 1:32:40Sen. Cruz: I knew dianne feinstein, I served with dianne feinstein, and you are not dianne feinstein.
▶ 1:32:46Sen. Schmitt: We are done.
▶ 1:32:48Sen. Padilla: Thank you, Mr. chairman. First, before -- couple questions I want to ask. Number one, appreciate a little history reminder, the major political parties in the united states, how for each of them have come from decades ago to today.
▶ 1:33:13Sen. Padilla: Second, since my home state of california has been referenced repeatedly in this current redistricting discussion, I will carve out an appointed distinction between--important distinction between california this year and have redistricting has been going and is going to go in other states. In all other states it's been the legislature and governor imposing new maps on the people of their state.
▶ 1:33:43Sen. Padilla: In the state of california it was a map put before the voters of california to consider. The question of whether or not to amend the california constitution, which had previously created an independent commission, but it was the people of california who voted to adopt a new map for the cycle only and approve the map for their consideration. It was the will of the voters, not the position of the governor or the legislature or state leaders.
▶ 1:34:13Sen. Padilla: That being said, let's get back to the callais decision. There's many striking things about it, not least of which is the discussion of congressional intent. Last I checked, congress takes rather seriously. 1965, congress enacted section two of the voting rights act, which prohibited any election practice that denied or abridged the right of any citizen to vote on the account of race or color. The historical facts are clear on that.
▶ 1:34:42Sen. Padilla: The supreme court interpreted section ii to require proof of intentional discrimination. Congress responded pretty unambiguously. Get revised section ii--it provides section ii to prohibit any election practice that resulted in the denial of the right to vote on account of race or color. There is no question as to what that language meant.
▶ 1:35:08Sen. Padilla: As this committee, senate judiciary committee, explained, "the amendment to the language of section ii is designed to make clear that plaintiffs need not prove a discriminatory purpose in the adoption or maintenance of the challenged system or practice in order to establish a violation." according to the majority in callais, however, section ii requires presenting evidence to support a strong inference that the state intentionally drew its
▶ 1:35:41Sen. Padilla: District to afford a voters less opportunity because of their race. Question for Mr. cox, anything with what I just said wrong, number one? Number two, do you think the court's decision and callais is consistent with the history of section ii?
▶ 1:35:58Mr. Cox: You are absolutely correct, and note, it is inconsistent with the history of section ii. What has not been discussed enough, or at all, is what section ii before callais required of individuals or organizations bringing lawsuits on behalf of black or latino or aapi members challenging redistricting or challenging other kinds of voting schemes that discriminated. There's a three-part test to get into court to make your case.
▶ 1:36:29Mr. Cox: First is can you draw a reasonably compact majority black district? What the supreme court has done is sprinkle partisanship through those standards, through the thornburg majority opinion. No longer was it free of partisanship.
▶ 1:36:49Mr. Cox: You have to draw a plan that satisfies the state's partisan ends to get through the door to prove, oddly enough, that the scheme that is being developed discriminates based on race. Number two and number three, racially polarized voting. You have to account for partisanship once again. Is it perhaps not race, but partisanship, that is driving these kinds of disparities?
▶ 1:37:11Mr. Cox: And finally, we used to be able to tally the circumstances which involved racially polarized voting but also a deep examination of the history of discrimination that leads to exclusion down the line. No longer allowed by this court. You have to show not only intent, but current examples of discrimination in order to improve your section ii case. It is not as benign as we are being led to believe it is.
▶ 1:37:38Mr. Cox: It is a complete gutting of supreme court precedent and a complete gutting of this congress's intent in 1982 to add an fx test that was robust.
▶ 1:37:49Sen. Padilla: I know my time is just about up. Mr. cox, briefly briefly briefly, 20 seconds, can you describe by number estimate the number of section ii cases that were successfully brought the last two decades, and when you anticipate -- how many would be successful?
▶ 1:38:11Mr. Cox: I don't have an exact number of the number of successful lawsuits, but the impact on bringing a section ii case will be profound under this standard. It will essentially eviscerate the possibility of bringing a section ii case under this regime. That is not to say we won't challenge redistricting plans or attempts to undermine majority-minority districts.
▶ 1:38:37Mr. Cox: Publicly in publicly in
▶ 1:38:42Sen. Padilla: 43% were successful. Last question, should this committee, should the senate, should congress be concerned about the supreme court's disregard for congressional intent?
▶ 1:38:55Mr. Cox: Yes. As justin kagan said in--justice kagan said in her dissent, you are required to enforce the civil rights act, and what the supreme court did is sees that power from you. You need to push that back just like with the 1982 amendments with mobile v. Folded and reassert yourself.
▶ 1:39:20Sen. Padilla: Let's go.
▶ 1:39:22Sen. Schmitt: Senator kennedy.
▶ 1:39:26Sen. Kennedy: Thank you, Mr. chapman -- Mr. chairman. Um, Mr. greim -- am I saying your name right?
▶ 1:39:39Mr. Greim: You are, senator.
▶ 1:39:43Sen. Kennedy: You argue the callais case?
▶ 1:39:47Mr. Greim: I did. I'm going to tell you my understanding of the case. And Mr. cox, I will ask you to tell me if Mr. greim got it right, and Mr. chamberlain, can chime in. Are you familiar with these students for fair case?
▶ 1:40:12Mr. Greim: I am. Sen. kenney
▶ 1:40:19Sen. Kennedy: Here is what I heard the supreme court saying that case. I heard the supreme court said, look, we are not going to get into the admissions business, that is your business. We're just telling you you you can't use race as a factor to admit anybody. Is that your understanding of the case?
▶ 1:40:36Mr. Greim: Basically, yes, it did a whole --
▶ 1:40:41Sen. Kennedy: Don't try to muddy the water to make it look deep, guys. I know you are all smart. I'm trying to get to the bottom line. Am I wrong or right?
▶ 1:40:51Mr. Greim: You are right.
▶ 1:40:53Sen. Kennedy: The way I read callais's the supreme court is saying, look, first of all, these are political questions. We're not going to tell the states how to draw congressional district. We don't want to be in that business. That is a political question. We're just saying you cannot use race as a factor. Is that what they did in callais , or am I misunderstanding it?
▶ 1:41:21Mr. Greim: That is basically it. You can use it to remedy past discrimination that you have proven. But that wasn't the case in the callais case. The other side didn't prove it.
▶ 1:41:35Sen. Kennedy: Well, this dish once again, you are muddying the water. Did the court or did not say that you can't use race to draw congressional district?
▶ 1:41:51Mr. Greim: In most cases you can't unless the state, the person defending the map, shows that they had to use it because there was a showing of immediately asked intentional discriminated--passed intentional discrimination.
▶ 1:42:06Sen. Kennedy: Tell me whether he got it right, Mr. cox.
▶ 1:42:10Mr. Cox: Senator, quite rightly, the defense of the callais cases that are tortured --
▶ 1:42:17Sen. Kennedy: I want to answer --did he get it right?
▶ 1:42:21Mr. Cox: He did not get it right. Under application of tester discussed -- t discussedo callais, you have to discuss what happened in the district that challenged callais. The court required the state of louisiana to redraw its plans pursuant --
▶ 1:42:41Sen. Kennedy: I don't want to have a fight. Can you just tell me -- you are smart. I don't want to make this more complicated than it is. Tell me what he got right or wrong.
▶ 1:42:55Mr. Cox: I'm telling you, what he got wrong --
▶ 1:42:58Sen. Kennedy: No, you're speaking like a lawyer. I'm tired. I'm listening to you gentlemen. Let's get down to it. Mr. chamberlain, tell me what he got right or wrong?
▶ 1:43:12Mr. Cox Mr. Chamberlain: He got it right. You are going to tell you are going to t asked me to tell the guy who argued and won callais what he got wrong?
▶ 1:43:23Sen. Kennedy: I don't need you to be rude. Didn't the supreme court say except in very narrow circumstances, you just can't use race to help a person and you can't use race to harm a person? And that includes drawing congressional district?
▶ 1:43:40Mr. Cox: In answering that question I'm going to tell you that the court that gave rise to the district that was challenged in callais said that there was a violation of voting rights act, that it was required to draw a redistricting plan that satisfied the voting rights act, that allowed african-americans to elect candidates of their choice. I am answering your question.
▶ 1:44:04Sen. Kennedy: No, you're not. No, you are not. You are giving us another lecture. This is not a common law class. Tell me in simple terms, is that not what the court said?
▶ 1:44:18Mr. Cox: The court said a lot of things that are inaccurate. The court said you cannot use race at all in drawing plans. We disagree with that. What the court really did was say that you can prove race -- you can prove intentional discrimination, violation of this congress's intent, and site partisanship as a defense for any challenge under section two.
▶ 1:44:43Sen. Durbin: I can see --
▶ 1:44:45Sen. Kennedy: I can see, no disrespect to Mr. cox, but you are not answering any of my questions. I know you're disappointed in the decision. Let me put it another way -- do you think race should be used to help a person?
▶ 1:45:00Mr. Cox: I don't understand that question.
▶ 1:45:02Sen. Kennedy: Sure you do. Do you think race should be used to help a person?
▶ 1:45:07Mr. Cox: I believe if there is a racial violation of the law, raised his commission, I believe-- race determination, a remedy that is race conscious should be used.
▶ 1:45:22Sen. Kennedy: Do you think race should be used to help a person? Mr. cox Mr. chamberlain Mr. cox Mr. chambe-
▶ 1:45:31Mr. Cox: I don't understand.
▶ 1:45:35Sen. Kennedy: I don't think you would. Do you think it is fair in america to use race to hurt another person? Mr. cox
▶ 1:45:48Mr. C Chamberlain: No.
▶ 1:45:49Mr. Greim: Absolutely not.
▶ 1:45:52Sen. Kennedy: No disrespect to Mr. cox, he's very bright, I can see that. And I've been where you have been when you are before court of appeal and you are using, you want of escape. --you want to obfuscate. But that is what the court is saying and all of these cases. We are not going to run your business. N your collegeot--not your college admissions, not your district. But you can't use race. Period.
▶ 1:46:22Sen. Kennedy: End of discussion. That is what the constitution says and what most american support. I'm not disappointed--I know you're disappointed, Mr. cox.
▶ 1:46:32Mr. Cox: I'm not disappointed, I'm outraged. Can I add one more thing -- I think there is a role for a branch of government, congress, to make its own determination on how it wants its laws enforced. I would urge this congress to reconsider callais in that light.
▶ 1:46:50Sen. Kennedy: But you and I are both aware that the united states supreme court has full authority to pass on the constitutionality of a stench of--statute. Come on, you know that.
▶ 1:47:04Mr. Cox: If moble v. Bolden is an example of what can and cannot happen, this congress can take a look at callais and say you got it wrong, and you didn't interpret what we intended in the 1982 --
▶ 1:47:18Sen. Kennedy: The problem with your argument is I don't think race should be used to help a person because of his race, and I don't think race should be used to harm a person because of his or her race. I think that is what most americans believe. If you believe the opposite, and you clearly do, this is america, you can believe what you want. But the supreme court is deciding these cases and saying race is off the table. Mr. cox Mr. chamberlain
▶ 1:47:49Mr. Cox Mr. Cha: I hear you, and
▶ 1:47:51Mr. Cox Mr. Cha: I hear you, anu have a violation based on race, you need to craft a remedy based on that.
▶ 1:47:55Sen. Kennedy: I'm sorry.
▶ 1:47:57Sen. Whitehouse: Mr. cox, what was redknapp? Two--- red map? Do you remember?
▶ 1:48:09Mr. Cox: I don't, senator, I'm sorry.
▶ 1:48:14Sen. Whitehouse: Red map with the republican states to increase the republican majority in congress even though it put the state's congressional delegation way out of whack with actual voter outcomes in the states.
▶ 1:48:37Sen. Whitehouse: A state that was basically a 50-50 tie, or darn close, would produce a congressional delegation that was maybe 2-1 or 3-1 republican. When they did that, there was an obvious response.
▶ 1:49:04Sen. Whitehouse: A lot of federal courts don't -- dealt with successfully. And then along came the united states supreme court, and despite the fact that federal courts had addressed that kind of deliberate, purposeful partisan gerrymandering in which the politicians tried to pick their voters rather than voters picking the politicians, and despite the huge disparity between where the popular vote came down in that state and whether delegation landed
▶ 1:49:35Sen. Whitehouse: --where the delegation landed, they said, oh no, we can't do a single thing about this. I think that was factually wrong because courts have been doing things about that that were reasonable, things like we will give deference to a bipartisan redistricting commission and we won't necessarily when we have testimony about the intent of the experts brought in by one party to make sure that one party dominated the delegation in that state.
▶ 1:50:05Sen. Whitehouse: The result of that was that republicans control the united states congress in a year in which republicans have gotten fewer votes for united states congress than democrats. But the gerrymandering worked. The red map trickery worked. And the decision was based on what I think is a completely false factual premise. Shelby county, I've argued before, was based on a completely false factual premise.
▶ 1:50:36Sen. Whitehouse: Nothing to worry about, the southern legislatures weren't going to try to depress minority voting, you didn't have to worry about what that ensued, 100 different laws across republican -controlled legislatures.
▶ 1:50:52Sen. Whitehouse: You then had the decision come in any way to enormous advantage to big donors to be able to spend unlimited money in elections, and do so anonymously, the interesting sidebar of all of that.
▶ 1:51:11Sen. Whitehouse: As I go through these different decisions, the one thing that seems to come up constantly is that if you look at the result of the decision by the united states supreme court, the result was advantage to the republican party. To me, it's a practically perfect through line. And it happens over and over again. And it can be frustrating.
▶ 1:51:38Sen. Whitehouse: I did a refer the john mccain, bipartisan--brief with john mccain, bipartisan brief, telling the supreme court that after the citizens united decision that what they had done was factually wrong.
▶ 1:51:52Sen. Whitehouse: What they had done by saying that all of this unlimited funding was going to be transparent, that we know who the donors were, flatly disproven by billions in dark money, that it was going to be independent of campaigns -- study after study, report after report shows it was not independent at all. You could never prove in a court of law that proposition.
▶ 1:52:13Sen. Whitehouse: They had invented it in their private deliberations at the end of the judicial process rather than going through judicial scrutiny it was indisputably wrong. It was indisputably wrong that the transparency predicate of citizens united was false. They made it up, and events proved to be false. You could tell it was false at the time. Those of us who argued in a case -- that case. But that is where we were.
▶ 1:52:42Sen. Whitehouse: I think there is a narrative here that we need to explore, which is not the question of whether the supreme court demands zero attention to race in decisions, even when hostile intention to race is present in state legislature state legislatuors. To me the question is do we have a supreme court willing to make a decision in the political arena that does not help the republican side in the election.
▶ 1:53:10Sen. Whitehouse: To me, at this point the record is perfect, and in the world in which you can prove bias and discrimination with pattern evidence, it seems that pattern evidence about this court is pretty damned obvious. Thank you for my time, Mr. chapman. -- chairman.
▶ 1:53:28Sen. Schmitt: Thank you. I may be being overly kind and allowing people to go over, so there is a second out and if anybody wants to go another five minutes, we will open it up. Sen. lee.
▶ 1:53:43Sen. Lee: I appreciate the excessive kindness. Mr. chamberlain, did prior misreadings of the voting rights act tended to push states towards race conscious mapmaking?
▶ 1:53:54Mr. Chamberlain: Yes, that's right.
▶ 1:53:57Sen. Lee: When estates at to create a majority-minority district, it almost unavoidably treats voters as members of presumptive racial blocs, rather than individualized citizens.
▶ 1:54:11Mr. Chamberlain: That's exec the right --exactly right.
▶ 1:54:16Sen. Lee: Is net precisely with the equal protection clause is designed to prevent?
▶ 1:54:21Mr. Chamberlain: That is looking to think that he merely triggers strict scrutiny. Doesn't that result in or at least entail a type of racial stereotyping that is really offensive? Sort of come I don't know, assumes that all people of a particular race are likely to share the same political views?
▶ 1:54:43Mr. Chamberlain: It's offensive to people of all races in the sense that it suggests everyone would only vote for people of their own race.
▶ 1:54:50Sen. Lee: So wouldn't a more defensible approach under the constitution be one in which legislative districts bring together citizens of diverse backgrounds, views, communities of interest, rather than sorting them by race?
▶ 1:55:05Mr. Chamberlain: Yes.
▶ 1:55:08Sen. Lee: Another way of putting it is the constitution gives pretty broad authority to state legislators to make this decision. They are free to make and how they deem appropriate. There are some things that are prohibited, and making them along racial lines is one of those prohibited factors.
▶ 1:55:28Sen. Lee: If they want to make the rest of them according to non-prohibited factors, like whether somebody is a yankee fan or red sox fan, that would be weird, but there's nothing in the constitution to stop that. There is two things in the constitution that prohibit that with racial gerrymandering.
▶ 1:55:45Mr. Chamberlain: That's exec the right. --that is exactly right.
▶ 1:55:50Sen. Lee: It seems that the racially gerrymandered maps in illinois, in california, it raises very serious constitutional questions, particularly in line of callais, the racial gerrymanders.
▶ 1:56:07Sen. Lee: Is it correct that in california, the drafter of the new congressional map admitted that "the number one thing is drawing a replacement latino majority-minority district in the middle of los angeles," and did they also boast that the new map "increase latino voting power, increase asian-american voting power, and add one more latino-influence district"?
▶ 1:56:35Mr. Chamberlain: Yes, he said all those things.
▶ 1:56:39Sen. Lee: How do you reconcile those things with the 14th and 15th amendments? And the obvious racial motive here? Is there any other way to read that other than this is a racial motive which the callais majority clearly said would be an permissible --impermissible under the vra and 14 and 15 the minute?
▶ 1:57:05Mr. Chamberlain: That is over racial discrimination and it would trigger strict scrutiny and there's no way he would survive it.
▶ 1:57:11Sen. Lee: What in the constitutional problem be the same regardless of which racial group the state purports to be helping even as it is engaging in this type of unconstitutional racial determination?
▶ 1:57:22Mr. Chamberlain: Yes, it would.
▶ 1:57:25Sen. Lee: So what we are being asked to do here is indulge the assumption because the states that want to engage in racial gerrymandering claim that their motives are pure, that those are somehow constitutionally permissible.
▶ 1:57:39Mr. Chamberlain: Yes.
▶ 1:57:41Sen. Lee: Has there ever been en era in the darkest depths of the jim crow policies, embraced by the democratic party and not the republican party -- even under those circumstances, they never said we are backing racial discrimination because we want to be evil. They always claimed that their motives were pure.
▶ 1:58:04Mr. Chamberlain: That's right.
▶ 1:58:06Sen. Lee: The defendants in brown v. Board of education claimed, don't worry, it is racial segregation, but our motives are pure. We are telling you this is good for education. People will get a better education if people engage in racial disconnection. What was the supreme court's response to that?
▶ 1:58:24Mr. Chamberlain: Too bad, it's unconstitutional.
▶ 1:58:28Sen. Lee: Is this any different than that? We don't care if you're motives are pure, subject to very rare circumstances, you cannot do that, we settled this at the end of the civil war? Mr. chamberlain Mr. cox
▶ 1:58:47Mr. Chamberlain Mr.: That's rig.
▶ 1:58:47Sen. Lee: Thank you, Mr. chairman.
▶ 1:58:50Sen. Schmitt: That will conclude the hearing. We ask the witness submit their responses within two weeks, so by tuesday, june 9, 5:00 p.m. I want to thank the witnesses for the time in testimony today. The hearing is adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap.org]