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our life form inviting you to the steps -- discuss latest issues in politics, and public policy from washington to across the country. on tuesday morning, as part of a weeklong series looking at key 2022-2023 supreme court cases, we talk about the ruling on affirmative action at harvard and the university of north carolina, which the center for equal opportunity and the naacp. we also discussed the reelection strategy for president biden and white house news with usa today white house correspondent francisco chambers. join in the conversation live at 7:00 a.m. eastern tuesday morning on c-span, c-span out, or online at c-span.org. >> this week on washington journal, we examine some of the most consequent to cases of the 2022-tway 23 super court term.

term. they took of executive power, free-speech, religious liberty and today, we will look at it case that dealt with voting rights and why that discussion matters. peyton mccrary served as a former historian, thanks for giving us your time. guest: happy to be here. host: when it comes to the large topic of voting rights, what was the significance of this particular case? guest: the specific case was a welcome surprise to many election law experts because it simply affirmed the way in which the supreme court has addressed cases brought under section two of the voting rights act for almost 40 years. host: when it comes to the specifics of the case, set it up as far as the challenging party and those bringing the case. what was the significance of the case? guest: the challenge was brought

by minority voters in alabama on the redistricting plan created by the alabama legislature after the 2020 senses on the grounds that it diluted minority voting strength, limiting african-americans representational opportunities to one district out of seven when the black population of the state was over 25%. this was the kind of challenge that's been brought by minority plaintiffs for well over 40 years, even before section two of the voting rights act was amended in 1982 to create a result test, replacing the former test the supreme court had handed down in 1980 in an earlier alabama case, and

section two was amended to eliminate to prove discriminatory intent in voting rights challenges. it was interpreted by the supreme court in 1986 in a way that created an easy roadmap for the courts to follow in addressing the complex fact in cases all over the united states. as a result of effective implementation of section two, the voting rights act, in many areas of the country, african-americans have been able to approach the degree of proportional balance and never exceeding it for all practical purposes. because of the effect of section two in supreme court in the decision authored by chief justice john roberts, simply

reaffirms the way in which the court would handle these cases despite the challenge that the state of alabama which was a lower court decision and ridged alabama and purge the supreme court creating a new standard requiring completely race neutral redistricting in which legislatures didn't even take a count of the racial composition of their state. the court said it wasn't going to abide by alabama's efforts to recast the way in which the court interprets the voting rights act. host: our guest will talk about this case, looking at voting rights and you probably member it from the recent season of the supreme court and if you want to ask specifics on the case, (202) 748-8001 for republicans, (202) 748-8000 free democrats, and

independents (202) 748-8002 you can send your questions are comments via text at (202) 748-8003. peer is a part of what chief justice roberts wrote on this decision when it was leased -- whens released back in june. can you elaborate on what he said in context of the case? guest: the supreme court back in 1986 set up a set of preconditions that minority planners had to meet before the court would even consider what

they call the challenging of the circumstance test which had been used by the court in 1970 in addressing this sort of racial claim. in that decision in 1986, the first precondition requires minority planners to take race into account because it requires that in order to proceed, they have to be able to show that they have an illustrative district that would remedy to some degree, the problem of which they are complaining. thus, the voting rights act is always been interpreted as requiring states to take a count of race in the drawing of plans simply not making race the predominant motive so that they would have an unconstitutional

discriminatory intent. thus, alabama is in effect requiring the supreme court to reinterpret the language of section two of the voting rights act in direct conflict with the way the congress had drafted it 1982. the court majority rejects that effort. host: what did you think of that majority not only including the chief justice and associates -- associate justice brett kavanaugh. guest: it included not only the four reportedly liberal justices but also justice kavanaugh who was appointed by former president trump and his regarded that is one of the more conservative members of the court. justice kavanaugh concurred in the opinion, agreeing with the

majority opinion except for one particular section of the decision in which the court considered and rejected the arguments of the centers of justice thomas and justice alito. justice kavanaugh was reluctant to address the issues that the court was addressing to the defenders and therefore, that particular part of the opinion was only a plurality opinion and not a majority which gives it less strength. host: go ahead. guest: i finished that thought so you can go on to your next question. host: let me read you of justice

thomas's dissent he wrote -- what do you think of that portion of the argument from justice thomas? guest: ever since justice thomas got on the supreme court in early 1990, he has consistently rejected all the presidents of the supreme court regarding the enforcement of the voting rights act, both section five and now discarded in 2013 and section 2

as amended by the congress in 1982. justice thomas is always argued in effect that thornburg -- that the 1986 decision that has been a leading president of the supreme court was wrongly decided. he has consistently argued, citing as is evidence primarily 's dissent that he himself or other justices wrote in dissenting from the majority opinion of the court. he has no regard for the principal of a consensus in which the court takes the account of past decisions and tries to follow the precedent that it had established in -- and following other decisions. it's no surprise the justice thomas was in december because he's always been a dissent and his argument assume things about

the weight in which the court has handled section 2 of the voting rights act is amended which is contrary to the with the supreme court decided these matters. host: our guest is from george washington university law school, talking about the specific case at the supreme court, the impact on voting rights overall. let's hear from david in alabama, birmingham, democrats line, good morning. caller: good morning to you. thank you for accepting my call. i have lived in alabama all of my life. i was involved with the first redistricting plan. we had enough voters than that i think they didn't except 51% and district to would request a

little more. the reason why that plan did not go through is because of the air force base. they didn't want the air force base a black district. on the last election, on the committee, they had 11 white republicans and neither one of the democrats on their served as the vice chair of the committee. i think something's wrong about that. the two plans i back, i like the singleton plan. two of the plans were good. thank you for accepting my call. host: how has alabama reacted to this decision? guest: i'm sorry, what was the question? host: how has alabama reacted because of the supreme court decision? guest: the alabama legislature

essentially ignored the commands of the supreme court decision. it drew a new plan which would clearly violate the approach the supreme court had found appropriate and accept another plan that was directly contrary to the instructions of the supreme court. it was no surprise when the trial court that had originally heard the case promptly held a hearing to evaluate this new plan. the alabama legislature had adopted. it's no surprise that they are moving to quite a special master to draw an alternative plan under the instruction of the trial court that would in fact remedy the violation of the

supreme court had they affirmed the lower court's decision. thus, alabama is once again, as it has for decades, defied the federal courts and tried to continue to to go contrary in the way in which the federal courts of the land have commanded. host: it's reported that the case the lawmakers make is that we passed a new law and we have new standards that will supersede the decision supreme court handed down. how does that hold up legally? guest: the alabama legislature's efforts are not likely to be accepted by the trial court. the trial court will provide an alternative redistricting plan no doubt the state will appeal

to the supreme court again and come in all likelihood, they will lose again. host: what makes you say that? guest: the history of the case law regarding the enforcement of the voting rights act for 50 or 60 years, ever since the 1965 voting rights act was adopted. host: this is something justice kavanaugh wrote --

does that stand out to you? guest: it suggests what justice kavanaugh is speculating about. what may come in the future is something that i don't get into the business of [no audio] issues with peyton mccrery of george washington university. if you want to continue to ask questions, call the phone lines and once we reconnect, we will connect you to him. (202) 748-8001 republicans, (202) 748-8000 democrats, (202) 748-8002 independents. go ahead and finish your thoughts, sir. can you hear me?

host: i can, go ahead. guest: i'm seeing a message that my internet connection is stable. host: you're good for now. guest: the 1.i was making is the quote -- the point i was making is from brooke justice kavanaugh is speculation about the future which has no particular relation to the existing case law. he did not address it because alabama, even in its extreme arguments did not raise this question. it is of course true that some time in the future, the court might revise its interpretation of the voting rights act. i'm not in the business of speculating about what might happen sometime in the future. that is the tenor of justice kavanaugh's musing. host: you have history at the

justice department, looking at the cases of civil rights and those that do will voting rights. talk about the history of yours. what has your work been on the subject and why are you interested? guest: i've been involved in voting rights led -- litigations in 1980 when i began serving as an expert witness in the two mobile cases on the supreme court after the court handed down the intent standard. in those days, cases of this nature, registered cases and other challenges to election practice were decided under the 14th amendment. court decided in 1980 that it was necessary in a 14th amendment challenge that the challenge practice was adopted whether racially discriminatory on purpose or was being maintained for the racially

discriminatory purpose. i testified at trial under that standard in both cases. the evidence that i provided to the court based on historical research demonstrated that the city's at-large election plan for its city commission and the county's at-large election plan for the county school board were originally adopted with the racially discriminatory intent and that they are being maintained in 1970's when challenged by mobile loosely legislators who were in the majority. they weren't successful. city and the county remainder with their at-large election system for a discriminatory purpose. the claimants one those cases

but the congress had already decided that the standard was extremely difficult to discern from cases long ago when i was asked to provide written testimony to the congress when it was considering this considering amending section 2 in 1981 regarding how expensive and time-consuming it was and if that was the correct question for the court to be addressing which i argued it was not. i urged congress then section two, it makes it unnecessary for historians to research events long past in the history of the city's election methods. the congress obviously had a lot of other people taking that same view and there was strong public out cry against the intent

standards in the congress acted with overwhelming voting strength to reject the intent standard and amend section 2 so as to require the courts to use a results test in a testing question of this nature. i i have been involved in alabama voting rights records throughout the 1980's. as an expert witness when i was still a history professor. in 1990, i joined the staff of the civil rights division that serves as an in house expert on voting rights cases which i did for 26 years. i retired in december. after that, i returned to the role of serving as an expert witness for minority plaintiffs in voting rights cases. a year ago, i decided not to think on -- not to take on new cases because i've got a book to

write and i haven't been able to do any writing since i retired from the department of justice. host: let's hear from jim in idaho. this is our republican line. caller: yes, i've a question. [indiscernible] there is about three states that allowed non-u.s. citizens to register as voters and they said you can vote for u.s. president. there are not another seven states that allow it. guest: i'm sorry, the connection was rough that i could not understand your question. host: we have a viewer on x saying --

guest: that argument has never been accepted in the federal court since the 1965 voting rights act was adopted. host: pain may carry is our guest from george washington university law school and talking about voting rights as we look at oral argument cases all week from the recent supreme court session. you can hear the oral arguments tonight as we kick off the week at 9:00 eight -- at 9:00 p.m. eastern you can see that on c-span a go to her website as well for all the oral arguments on the key cases. you can do that at the website at c-span.org. how does the decision on this case impact other states that might be going through the same issue of redistricting? guest: other states will clearly

have to follow the same guidelines that the federal courts of handed down. they handed them down starting at least in 1986 which followed the view of amending section 2 that the congress adopted in creating the test. in other words, the decision simply preserved the status quo in federal law that states and localities have two follow if they're going to be found legally appropriate. host: as other states present their cases to the lower court and they make their way through, how does the decision we are talking about impactors future special-effects. how could it be applied? guest: the lower courts are required to follow the rulings

of the supreme court. the supreme court decisions have always been binding. if any state wants to argue to the contrary one earlier port in the early 1980's remarked with tongue-in-cheek that the states were inviting the court to a life of high-end venture, meaning the trial for him. no trial court wants to be summarily reversed by the supreme court on the view that the lower court has ignored the precedent set down by the highest in the land. host: what does it matter if the state decides to use an independent body to redraw the maps or an in-state body to

redraw the map? does that matter? guest: an independent commission has had a more complex history as deemed by the federal courts. it is an acceptable way of doing an alternative read just doing plan -- brand under the circumstances. the court looking at such a decision by a state that used an independent redistricting commission looks at the facts as to whether that commission is really independent, the local decision-makers or whether it's tied into the current political powers that be in such a way that creates the same problem that would have faced the courts had the decision been made by the legislature.

independent redistricting commissions are away under the proper circumstances on how they are constructed by the state law. doing redressed taking dish doing redistricting in a way that can do away with lower court rejection. that's the path that states could follow if they are not trying to evade the requirements of federal case law. host: we will hear from mark in california, independent line. caller: good morning. first, is donald trump, no matter what happens to wind up setting some kind of supreme court precedent? that's my question of the supreme court and out of what

universe is somebody keeping him out of these debates is what interest me. i don't know if those things will intersect but ultimately, does the drum thing wind up setting a precedent either win, lose or draw? host: thank you, caller. guest: i'm not sure i understood your question. it seems to be addressing the prospect for the 2024 election in regard to the candidacy former president donald trump. is that correct? host: sorry about that. the caller dropped but thanks for the response anyway. this is from twitter -- guest: first of all, the demography of the state has

changed during those decades. now, it's possible to do a fairly drawn opportunity districts for minority voters given we have a realistic chance to reelect -- to alike represented of their choice. not only has the democracy of the state change but it has increased slightly. the degree in which voting patterns are racially polarized in the state has declined to the point where the courts have always interpreted the decisions where the rachel polarization has declined to the point where it still exists but it's possible, because of white support for minority preferred candidates, it's possible to win with a lower black percentage or minority percentage than used to be required.

therefore, the districts that the lower court had accepted as the standard and they accepted it as appropriate, district that provide a fair opportunity for black voters, direct representatives of their choice whatever their race, with only a bare majority of the voting age population. therefore it possible for the first time to draw for minority districts in alabama's ruse hadn't been true beforehand. that's with the trial court said with a valid view. host: let's hear from keith in

denver, colorado line, independent. caller: good morning, i also hear conservatives media and conservative dog leaders that there is no such thing as systemic racism. however, if redistricting is racially based in places like alabama or west virginia were whatever, isn't that proof that systemic racism still exists in the united states? guest: whether systemic racism still exists in the united states isn't really the question before the court. it is certainly required in the court to show that the degree to which elections provide

opportunity for minority voters to elect candidates of their choice because the court focused on the degree to which voting patterns are racially polarized. the second and third preconditions that the court set down in 1986 required proof that minority voters are cohesive in their view and white voters are cohesive in rejecting the candidates preferred by minority voters. that's with the fact showed in this case in this alabama case and all of the alabama cases i've ever been involved with or ever read even when i wasn't involved in them. racialized voting is not restricted to alabama or to the south. there is racially polarized voting in many jurisdictions all over the country. i have worked on cases involving

northern ohio, westchester county, new york, indian voting rights cases in south dakota and montana and so on. these are cases involving hispanics in california and the southwest and in texas and racially polarized voting is present to varying degrees in this country. whether that addresses your question of systemic racism, i'm not sure. host: there is one more question about the alabama case -- guest: the federal courts will do it using a special plan. the court routinely had to step in but states are so recalcitrant, they do not follow the command of the lower court and the supreme court.

host: are there any other voting rights cases your keeping an eye on yourself whether be the supreme court on the state level when it comes to voting rights? guest: one of the key decisions by the court also in june of this year involved redistricting congressional redistricting in north carolina. there, the legislature had drawn a plan that was regarded by the courts as a partisan gerrymander. it was drawn in order to benefit the interest of the republican party and limit the chances that the democratic party could elect candidates to the congressional seats from north carolina. initially, the state supreme court in north carolina ruled

that that was in violation of city constitution they decided that partisan gerrymandering was not one the supreme court was willing to have the federal court address. the state supreme court decided that under the state constitution, this partisan gerrymandering claim should be struck down. because the republican party was able to elect a majority of the supreme court justices in north carolina in the next election, the court swung from -- the state supreme court's one democratic majority to republican majority in the republican supreme court in north carolina reversed the

decision of its prior decision regarding congressional redistricting. they ruled the plan could go into effect. the case was appealed to the supreme court and north carolina offered a theory that is considered but almost all the commentators among election law experts as a dangerous theory. looking at the text of the portions of the u.s. constitution that relate to redistricting authorities of state legislatures, the literal wording of the constitution was required and was read as requiring that state courts, the

state legislatures have sole authority to draw congressional redistricting plans without regard to the state constitution or the rulings of the state courts including the state supreme court. that theory was known as the independent state legislature theory. it was addressed in june of this year in a case in which the court rejected that extreme interpretation of the independent state legislature. it sent the case back to the lower court for further consideration, avoiding the most extreme version that could have been adopted at the court accepted the arguments of the north carolina legislature about

its authority in drawing congressional redistricting plans. it only applies to congressional redistricting plans because that's the specific language of the federal constitution on which it was relying. that is an important decision as well of a little different nature from the alabama decision which was simply reaffirming almost 40 years of court precedent3 . host: peyton mccrary, a professional election law historian here to talk about the case and taking a look at voting rights. you can see those oral arguments at 9:00 p.m. on c-span. thank you for your >> during the 2022-2023 supreme

court term, the justices announced decisions on some of the most consequential or argument cases. this week, c-span will examine some of those cases, involving voting rights, affirmative action, and that his commission, and religious liberty, executive power, and election law. tonight, we look at the case of allen versus milliken, involving alabama's congressional map and voting rights. the court voted in favor of black voters, saying that the redistricting map violates the voting rights act. watch key supreme court oral arguments this week at 9:00 p.m. eastern on c-span, and online at c-span.org. >> c-span is your unfiltered view of government. we are funded by these television companies and more, including cox. >> this syndrome is a truly rare.