Amicus transcript: racial gerrymandering at the Supreme Court.

What’s Wrong With Racial Gerrymandering: the Transcript

What’s Wrong With Racial Gerrymandering: the Transcript

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Dec. 19 2016 5:25 PM

The “Where We Draw the Line” Amicus Transcript

When redrawing legislative maps, how race conscious is too race conscious?


We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 55, in which Slate’s Dahlia Lithwick chats about McCrory v. Harris and Bethune-Hill v. Virginia Board of Elections, the two recent challenges to Republican gerrymandering efforts that resulted in the creation of majority-minority voting districts. Were lawmakers in Virginia and North Carolina motivated primarily by racial considerations? Or was that only a secondary motivation? Marc Elias, who represented the challengers in both cases, talks with Dahlia about that important distinction.

Also, Dahlia sits down with legal scholar Carolyn Shapiro about the recent revolt in the Electoral College. A small group of electors called the Hamilton Electors want to be freed from state requirements that they vote as their state voted. Should these Hamilton Electors be taken seriously?

To learn more about Amicus, click here.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Lithwick: Hi, and welcome to Amicus. This is Slate’s podcast about the U.S. Supreme Court. I am Dahlia Lithwick, and I cover the Supreme Court and other courts for Slate. And it was a busy week at the High Court; although, the Justices appear to be passing around a wicked winter cold. I should note that Justice Ruth Bader Ginsburg’s sniffles triggered widespread hysteria and panic among liberal court watchers, and I am here to assure you that it really was just a cold.

The court heard arguments in several cases this week and handed down some opinions, a few of them notably were unanimous because this seems to be a thing now. We’re in a new era where the court, in its eight justice period, comes down unanimously or in 4–4 splits. Or terrified of future 4–4 splits, which may partially explain these three cases the court has already agreed to hear, but still hasn’t put on the calendar for this term.

Now, we’re coming at you today just over a month after the election, but voting is not fading into the background for court watchers—far from it. In part, that’s because of the recounts that are happening in various states that we’ve been hearing about. It’s also partly because there are voter ID laws working their way up through the judicial system. And it’s also because we are now in the lead-up to the next decennial census and all the legislative redistricting that will follow that census.

Later on in the show, we’re going to talk a little bit about the Electoral College and specifically about a small revolt that is underway on the part of a few members of that College. But first we’re going to turn to the subject of redistricting, which was the topic du jour Monday at the Supreme Court. The justices heard not one but two arguments in cases involving the drawing of district lines at the state level—one out of Virginia, the other from North Carolina. Both of these cases are challenges to district maps drawn by Republican legislatures.

The challengers argued that by intentionally creating several majority African American districts, lawmakers were prioritizing racial considerations, which has been determined unconstitutional in previous court cases. Not true, say the defenders of the maps. Instead, they say the district lines were motivated primarily by partisan political considerations, and courts have ruled that partisan gerrymandering, as it’s known, is permissible.

Not only that, but the Voting Rights Act requires legislatures to take race into some account when drawing district lines so that they can protect minorities’ votes and make sure they’re not being diluted. The challengers in both cases were represented in court this week by Marc Elias. He is chair of Perkins Coie’s Political Law practice, an elections expert. He was also General Counsel for Hillary Clinton’s 2016 campaign, and I think it’s fair to say something of the Where’s Waldo for Democratic elections law this fall. So, welcome to Amicus, Marc.

Elias: Thank you so much for having me.

Lithwick: Is that a fair characterization? You’ve been pretty busy; right? You were overseeing the North Carolina recount, you were dealing with the Clinton campaign’s involvement in the recounts in three states, and arguing at the Supreme Court. Anything else you’ve been doing the last two weeks?

Elias: You know, I think that’s the bulk of it, but it was enough. I argued two redistricting cases on the same day on Monday, and when I showed up and I was talking to some of the folks in advance, they said, so how often have you done this before? And I said, well, let’s see—I’ve argued one case in the Supreme Court before, so this will triple my experiences.

Lithwick: Right, Nos. 2 and 3. This law of gerrymandering and political and racial gerrymandering in particular is so thorny. I wonder if I could ask you to sort of set the table for listeners who may be apt to kind of glaze over on this topic and just help us understand what the lay of the land is doctrinally; in other words, what’s allowed and what isn’t allowed?

Elias: Right. No, it’s a really important question. So, in both these cases, what we have is the question of how much can the district lines be explained by looking at, uh, race and whether it was appropriately used or not, or to what extend was it driven by partisan considerations which would, under the current court’s jurisprudence, be immune from—from challenge. So, to put it in plain, plain English using the North Carolina case, when they drew Congressional District 12, which is that, you know, sort of serpentine district that goes from Charlotte in the South all the way up to Greensborough, were they doing that to disadvantage black voters or were they doing it to disadvantage Democrats? And how do you disentangle those two?

Lithwick: And can you just explain, Marc, what in each case—because Virginia and North Carolina did different things—so can you just explain for our listeners what the action was that was taken in North Carolina? As you say, it was drawing this very strange looking district. What happened in Virginia?

Elias: Virginia was really quite an extraordinary situation. The State decided the Republicans who drew the map decided to set a 55 percent threshold for black voters in all of the predominantly black-majority districts. So, rather than saying, OK, here’s the district and this is what the black voting-age population would need to be to make sure that African Americans are able to elect their candidate of choice, the legislature just adopted a one-size-fits-all mechanical trigger at 55 percent and said, that’s the number, and we’re going to draw every district to make sure that it is at least 55 percent black voting-age population.

And, you know, what we’ve pointed out is that several of these districts had been electing African American candidates of choice at substantially below 55 percent. And some of them, you know, needed more than 55 percent. And, so, the use of the sort of mechanical trigger is what we challenged in Virginia.

Lithwick: Marc, I think that Paul Clement, who was representing the states in both these cases, in a rebuttal referenced the North Carolina line drawing as really pretty simple. He suggested that the idea that legislators brought a bunch of African Americans in was just kind of a nothing. Let’s listen to him for one minute:

Paul Clement: It’s all well and good to say they pulled in 75,000 African Americans or hauled in all these African Americans. They were all Democrats as well. And that’s why even there, if you had an alternative map that show, no, there’s a different way to do Guilford County, and that would prove—bring in Democrats and not the—bring in African Americans, then you’d have something. But just the fact that they brought in a bunch of African Americans because they were trying to bring in Democrats is about as interesting as the sun coming up in North Carolina because everybody agrees, there’s about a 90 percent correlation between race and partisan identity.

Elias: Right. Well, again, setting aside the question of whether or not we ought to be quite so at ease with partisan gerrymandering, in Virginia they didn’t set a 55 percent Democratic threshold in all those districts. They set a 55 percent black threshold. So the fact is, they were trying to concentrate these voters not based on the fact that they were Democrats, but rather based on their race, and that’s really what’s at odds with the Constitution and, frankly, the Supreme Court’s recent decision in a case out of Alabama.

Lithwick: Talk a little bit about the extent to which, you know, I think you make the point right from the beginning that you can’t disaggregate a political gerrymander from a racial gerrymander. Elena Kagan made that point pretty forcefully; you know, it looks like the one, but it’s both. Let’s listen to her for one second:

Justice Elena Kagan: I mean, that’s the question that the district court was trying to answer: Is it politics or is it race? If it’s politics, it’s fine. If it’s race, it’s not. And—and so let’s just take a hypothetical—not this case—but let’s take a hypothetical, which is: A state really does decide to do race-based districting. Says, we want to segregate all the African American voters. This is the way we want to do it. But then they say, well, we’ll—we’ll—we’ll justify it based on politics because that sounds better; right? So—and—but—but there’s lots of direct evidence that, in fact, the justification is politics, but the true reason is race.

Lithwick: Marc, is it true that there’s just no clean line anymore between those two, you know, activities, and that Kagan—and I think both Kagan and Breyer in this instance—were saying that this is an artificial distinction?

Elias: Yeah, I think that’s just factually not true. The fact that race and partisanship are highly correlative doesn’t mean you can’t distinguish one from the other, so let’s use two examples of what you can. The first, which was present in Virginia is you simply listen to what the legislature tells you it’s doing; right? So, if the legislature tells you it’s using race, then you believe them. And in both Virginia and in North Carolina, there were instances in which the legislature said, we are doing this for racial reasons, not for partisan reasons. So, that’s one way you disaggregate them.

The second way is you look at, well, how did they treat areas where you had white Democrats and black Democrats? So, for example, one of the districts at issue in Virginia is basically inner-city or city-center Richmond, and this was the district that was 46 percent black previously, and you had essentially a coalition of white Democrats, young Democrats, and also, you know, sort of whites who had moved into the—Richmond who—who were voting in exactly the same way as their African American neighbors; yet when they drew the district, they replaced those concentrations of white Democrats with African American Democrats from outside the city. So, there are ways you can do it. It’s the fact that it’s a challenge doesn’t mean that it’s not possible.

Lithwick: And I think one of the themes that undergirds so many of these gerrymandering cases is that it’s just not possible. There’s no way to do this. And I think, you know, Justice Alito had some of this at oral argument, even Justice Breyer had a colloquy with you; right? I mean, is this just about one stray sentence? What do we do about this problem of workability, the fact that what you’re asking legislatures to do is in defiance of all laws of, you know, physics, and science, and statistics. This can’t be done. It’s not workable.

Elias: Right. So, look. I think that that’s a more complicated question in the cases that are weaving their way up the courts to prohibit partisan gerrymandering. One of the reasons why I think the court has struggled with allowing a claim based on partisan gerrymandering is that a workable standard is difficult because, you know, how much partisanship can’t go in to it? Obviously, the legislatures themselves have participated in partisan elections and have some knowledge of partisan activity. So, how do you set a standard for partisanship?

With race, it’s easier to know in some instances. In some instances, it’s not. In some instances, it is a very, very difficult thing to pull apart, and in those cases, frankly, the state is going to prevail; right? Those lawsuits are either not going to get filed, or if they get filed, the state is going to prevail. But in cases where the state says, you know, explicitly, we did this in order to destroy a cross-over coalition of blacks and whites voting together as neighbors in Richmond and replace it with a district that was going to be, come hell or high water, at least 55 percent black, you know, that doesn’t require a sophisticated analysis.

Lithwick: And I think that the subtheme of this entire podcast is always what is Anthony Kennedy going to do?

Elias: I was going to say, that would be right.

Lithwick: But in fairness, even on a 4–4 court, we’ve learned he can make a huge difference, and I think in at least the Virginia case, he was giving some hints that he’s uncomfortable. Let’s listen to him for one minute:

Justice Anthony Kennedy: The hypothetical is the tipping point, the principal motivating factor was race. And you say that because—and the district court I think said because the districts are conventional in all other respects, strict scrutiny doesn’t apply. I have a problem with that.

Lithwick: Does that signal to you that maybe, at least in this one case, the legislature crossed a line and that you might have Kennedy on board?

Elias: So, first I will start with the disclaimer that you undoubtedly get every time you ask a question of a lawyer about a justice, which is: You can never tell from the questioning how any justice is going to come out. That said, I certainly took heart in that—in that comment because it did suggest that Justice Kennedy was not comfortable with the kind of mechanical threshold that was used in Virginia which, by the way, would be consistent with his position in the Alabama legislative case from a couple of terms ago where Alabama used a differently triggered but similar threshold.

Lithwick: Marc, I want to just turn to an observation that some folks have made that connects up maybe the voter ID cases that you were involved in earlier this summer and the voting rights cases here, and even I think Whole Women’s Health from last spring, and that is that there seems to be at least in the cases that you’ve dealt with so far a new enthusiasm for probing what legislatures really mean and what they say they mean.

And certainly if Whole Women’s Health stands for any proposition, it’s that we don’t necessarily take a legislature on their word that they’re doing something. We pierce that, and we really scrutinize what they were doing. I mean, certainly this summer I think you were the beneficiary of that in several big voter ID cases—but is it fair to say that there’s this new theme at the Supreme Court that says we don’t just look as far as the language of legislators?

Elias: So, I think it’s hard to know yet whether it is an enduring theme or whether it’s unique to the cases that have been brought before it. I can tell you that in the voting rights cases, in the voter ID, the curtailing of early vote, the doing away with, you know, preregistration of first-time voters in high schools, having the panoply of creative ways that we have seen Republican legislatures go about making it harder for people to vote, I do think that the courts have had greater skepticism of the reasons that were offered and have looked behind them.

I would note one example because it actually involved the same legislator in North Carolina who was responsible for the redistricting was also responsible for the law down in North Carolina that curtailed voting rights, and I’m always careful never to call that law the ID law because though ID was a piece of it, it also—like I said—did away with same day registration, it curtailed early voting. But my favorite piece of it—or perhaps the least favorite piece of it—was a provision that prohibited high schools from, in civics classes, preregistering students who were 16 or 17 to vote in their first eligible election. So, it’s not like they got to vote when they were 16 or 17, but they were preregistered for when they’re 18.

And North Carolina did away with that as part of this horrible law that they’ve passed. And the sponsor of the legislation, when asked why he did this, he said, well, that he had a 17-year-old son himself who found this to be confusing. And because his son found it to be confusing, that was why he did it. And, look. You can believe a lot of things about why the Republicans want to make voting harder. I don’t think it’s because one legislator’s son found being preregistered in high school confusing. And, so, I think that as the aggressiveness of voter restriction laws has increased and the reasons to support them have become flimsier, you have seen courts be much more probing and aggressive in considering what is really going on there; you know?

Is it because of the reason they’ve said or is it because in 2012 we saw an unprecedented equality of black American turnout rates in North Carolina and white turnout rates in North Carolina? And we saw President Obama re-elected as a Democrat. Like, is that what was going on or was it these other, you know, flimsy explanations? So, I think that’s part of what it is. It has to do with the aggressiveness of the restrictions that are being put in place.

Lithwick: While we’re on the subject of the voter ID and other sort of vote suppressive laws, I have to ask you the question I’ve probably been asked most about voting in 2016 presidential election, and that is: Do you feel as though aggregated across the country some of those voter suppression measures actually impacted the outcome of this election, or do you feel like it was so marginal that in the end it didn’t make a difference?

Elias: So, it’s a good question, and I don’t have enough data to know whether it was race determinative in any particular election, whether or not in the presidential election, or Senate election, or gubernatorial election, or a congressional election. But from my standpoint, that’s actually not the right question. The question is not, you know, did it affect, you know, X number of votes in Y state sufficient to have reversed it because in some sense, that’s like a metaphysical question. It’s a hard thing to ever pin down.

To me, the question is: Did we see evidence that these laws affected real people’s ability to vote and actually were successfully suppressive? Regardless of whether they were suppressive for one candidate or the other, were they genuinely suppressive? And I think the answer to that, unfortunately, is yes. We continued to see the consequences of these changes in laws and the disparate impact that they had on minority voters, on first-time voters, you know, and it’s just a shame.

I mean, it’s for all the hard work that I and other lawyers put in to try to play whack-a-mole with these laws, the determination on the other side in states as diverse as, you know, Wisconsin and North Carolina, Virginia and Ohio—you know, I could go on—Arizona—you know, all of those states you see this determination, it’s hard to know whether it affected the actual outcome. Or at least at this point, you know, I don’t have enough data to know, but it definitely had an impact on those voters.

Lithwick: And can I ask you—because I get email to this effect a lot—voters out there, progressives particularly right now, who are trying to get their heads around voting rights and find it incredibly confusing … if there was one issue that you could sort of educate people about and organize around—and I know it’s not fair to pick one off your menu of the things that you think about—but is it gerrymandering, is it voter ID? What’s the thing that you wish people understood the impact of? And if you could sort of give them a, here’s a thing you can do to make voting more fair? I realize that’s a very broad question, but have at it.

Elias: Yeah. So, I’m going to violate your rule, and I’m going to pick two.

So, one would definitely be gerrymandering because it has the impact of insulating elected officials from having genuinely competitive elections. So, in some sense, no matter what you do to fix the voting technology and the access to the polls, if in fact the composition of the electorate is comprised in a way to prevent there from being better elections, then, you know, that’s kind of game, set, match. So, set that aside, though, because I think that’s, like, first of all, it affects congressional elections and state legislative elections uniquely, and it kind of has that overarching effect.

I think beyond that, I actually would say that the greatest failing in our system right now is that it is antiquated, that there is insufficient access to voting equipment, the lines are too long. In other words, I think the issues like ID, and early voting, and same day registration are all really important and really central issues, but I think that every election we take for granted that, you know, in the Hampton Roads area of Virginia where there’s large African American populations, there are going to be really long lines. And in Maricopa County in Arizona, there are going to be really long lines and lots of ballots that don’t count because they’re cast provisionally and don’t count.

And that’s just, you know, that’s like a problem that we could solve. There should be no ideological divide there. We should be able to have sufficient voting equipment, we should be able to have voting equipment that works, that is intuitive to voters, that is secure, that leads to ballots being cast and counted and counted accurately, and I think that, you know, we had a crisis in this country in 2000 when Americans and saw in Florida the use of what seemed to be, you know, really antiquated technology in the hanging chads and the punch card voting systems, and Congress passed the Help America Vote Act to upgrade voting equipment. And, you know, at this point, that was 15, 16 years ago.

And I think what we’ve seen is an evolution in the technology that states have deployed, and I think it disproportionately impacts certain communities over others. And that should be a simple problem to solve, and it’s one that Congress and the states need to solve.

Lithwick: I remember thinking, Marc, when I saw I think it was the Brennan Center Report that, you know, a lot of these machines, these voting machines are 10 and 12 years old. I remember thinking, imagine if I was still using my cellphone from 12 years ago or even my hair dryer from 12 years ago, I mean, really it’s quite astounding that this is not something that we put massive resources into.

Elias: Right, and it’s unevenly distributed, you know, because oftentimes voting equipment is maintained and purchased at the local level. So, you know, you have some counties that have more resources to spend on this, and others that are, you know, budget-strapped and deciding voting systems, and number of polling locations, and all the other things against a budget for, you know, school supplies.

Lithwick: Marc Elias argued his second and third cases at the Supreme Court on the same day this week. He is chair of Perkins Coie’s Political Law practice, he’s general counsel for Hillary Clinton’s 2016 campaign, and we thank you so very much for being on the show today, Marc.

Elias: Thank you.

Lithwick: For our second segment today, we’re going to turn back to that good old presidential election and the entirely strange animal that is the Electoral College. Now, Hillary Clinton, of course, won the popular vote by 2.7 million votes and counting, and yet on Dec. 19, the state electors will cast their votes for Donald Trump.

There are various movements afoot, actually, to stop that from happening, and one of them is a push by the so-called Hamilton Electors. This is a small group of electors who are seeking to be unbound by the state requirements in their state requiring that they vote as their state voted in the election. One of the legal thinkers supporting this effort is Carolyn Shapiro. She’s a professor of law and co-director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law. She served as Illinois solicitor general from 2014 to this year. First of all, welcome to Amicus, Carolyn.

Shapiro: Thank you for having me.

Lithwick: And can you explain to people who are hearing this phrase for the first time who the Hamilton Electors are and—and what they want?

Shapiro: Sure. The Hamilton Electors are a group of electors that is the people selected by the voters on Nov. 8, but who will ultimately select a president on Dec. 19. The Hamilton Electors are a smaller group of those folks who are opposed to Donald Trump becoming president. They’re originally a group of Democratic electors who are willing to vote for a compromise Republican if Republican electors will also not vote for Donald Trump. The idea is that Donald Trump poses a unique threat to the country, and that for that reason, they are proposers of this rather extraordinary thing.

Lithwick: And for those of us who have no idea how you get to be an elector, some of them are young. I think folks have this notion that electors are just I don’t know who, but how do you get to be an elector in a state?

Shapiro: Well, it really varies from state to state, but generally the parties figure out who they’d like to have be electors. Sometimes I think they’d choose real party loyalists and local elected officials, but really it can be anybody. There are no requirements in the Constitution to be an elector.

Lithwick: And just to be perfectly clear, for instance, in the Colorado instance where we have two electors, the state went for Hillary Clinton; right? Their nine electoral votes go to Clinton. They’re saying, no, we want to be freed up from the burden of having to vote for Clinton, even though we’re Clinton supporters, we want to defect from the thing we thought we wanted in order to give this gig to someone like John Kasich; right?

Shapiro: That’s right. Their position is that the electors have a responsibility to protect the country from somebody who is a demagogue, somebody is uniquely unqualified, who might be under the influence of a foreign government, those are all the criteria that Alexander Hamilton himself set forth in his justification for having an electoral college, and they believe that they way to do that is to work with Republican electors to find somebody else who would be a responsible compromise candidate.

Now Colorado, like a number of other states—about half the states—have laws that purport to bind the electors to whoever it is that won the vote in their state or whatever the nominee of the party that they were nominated by. Colorado has such a law, and the Colorado electors are challenging that law as violating the Constitution. The reason they’re doing that is because there are laws like this in some other states, and some of those states went for Trump. They’re also doing it so that they can keep up their end of the bargain that they’re willing to strike, which is to vote for a Republican as opposed to voting for Hillary Clinton.

Lithwick: But it’s fair to say, right, that in some states for instance, in Washington state … the punishment for being a, quote, faithless elector, is a civil penalty up to $1,000. In Colorado, the punishment is you’re just disqualified and they pick a new elector. So, your electors are up, in some cases, against very draconian punishments. Across the boards, this looks like a really, really tough fight.

Shapiro: I think it’s actually not as tough as it might first appear. The Constitution is pretty clear about how the division of responsibility operates when it comes to choosing the president. The Constitution gives the responsibility for figuring out how to choose the electors to the states, and the states have all decided to do that by means of popular vote. But once the electors are chosen, the Constitution doesn’t give the states themselves or any state officials any obligations, or responsibilities, duties, or control over what the electors do. And it really would fly in the face of the explanation that certainly Alexander Hamilton gave for the Electoral College to allow the states to step in and say, no, you can’t do what really an extraordinary situation is necessary for the country.

Lithwick: So, what the Hamilton Electors are essentially arguing for is to be allowed to do what Federalist 68 says which is, use your discretion; right? You just, you know, search your conscience and figure out what is best for the country. That’s what they’re seeking, but it seems to me that we have a fairly settled policy in this country that’s gone on for a really long time that doesn’t allow for that. So, it just feels as though what they’re asking for is so radical and would displace so much, you know, history, whether it’s constitutional law or not, it seems like it’s asking for a very, very big departure from what we’ve always understood their role to be.

Shapiro: Well, it certainly would be unprecedented, and it certainly is not what anybody would ordinarily expect. That’s absolutely true. But if you think about it this way, imagine that the presumptive president-elect committed a serious crime after the election, or it became clear after the election that in some way that it was really undisputable that the presumptive president elect was enthralled to a foreign government, for example, or became incapacitated in some way, we would expect electors in that situation to exercise their discretion and select a more appropriate or capable candidate.

Now of course we don’t want electors running around doing this every time there’s a presidential election. There’s a reason why the people vote on Nov. 8 or the Tuesday in November, but you have to ask what will happen otherwise? And Donald Trump is demonstrating that he is a uniquely dangerous individual to be in the White House. Just to give an example, he has been skipping his Intelligence briefings, getting on the phone with foreign leaders—foreign leaders of countries that are themselves nuclear powers or that are in some kind of tense relationship with nuclear powers, and saying things that are really, at best, inconsistent with United States foreign policy as developed over a period of decades.

So, there’s a just an element of incredible recklessness in what he’s doing that has nothing to do with policy and has nothing to do with whether or not the person in office should be a Republican or a Democrat. It really has to do with the danger that this individual poses to all of us.

Lithwick: Last question, Carolyn. As a con law professor and somebody who thinks about the Constitution all the time, you’ve said that this, you know, effort is pretty much unprecedented. What does the case law say? What are the contours of how we think about this as a voting matter?

Shapiro: Well, there’s not really very much case law from the Supreme Court that’s relevant. There’s a case from 1952 called Ray v. Blair, and in Ray, the court actually upheld a state law that allowed a party to require an elector to make a pledge before they slated that elector. So, the elector would have to say, if you’re going to put me on the ballot as your elector for the Republican Party, I’ll take a pledge that I will support your candidate in the end. The court upheld that law, but it expressly did not reach the question of whether the pledge would later on be enforceable.

And that may seem kind of odd, but it actually, when you think about the situation that we find ourselves in right now, makes a lot of sense. We don’t want electors running around just doing whatever they want regardless of the vote. There are reasons to have them be party loyalists, to have them be people who we, I think in general, are going to behave in a predictable manner because the people are voting, and they expect that their votes will have a certain effect.

But in the rare situation that we find ourselves in now where the presumptive president-elect is so manifestly unfit and has demonstrated that in spades post-election, this is a safety valve, and nothing that the Supreme Court has said would call that into question. In fact, other cases that the Supreme Court has decided involving the division of responsibility between, for example, the people and the state or the people in Congress when it comes to choosing who will represent them, the court has policed those lines very carefully. And, so, to the extent that states are attempting to impose their views on what the electors should do, I think the precedent really points in the other direction.

Lithwick: Carolyn Shapiro is founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States. She served as Illinois solicitor general from 2014–2016. Carolyn, thank you so very much for joining us today.

Shapiro: Thank you. It was a pleasure.

Lithwick: And that is going to do it for today’s episode of Amicus. We are eager as ever to hear your thoughts. Our email is You can also leave us a comment, or a question, or a knock-knock joke on our Facebook page. You will find that at To the woman who wanted me to read Goodnight Moon to her kids, send an email and I will do it. And remember all of you, if you’ve missed any past episodes of the show, you can find them all on our show page, And if you’re a Slate Plus member, you’ll be able to find transcripts there. And if you’re not, you should be a Slate Plus member.

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Thank you to the Virginia Foundation for the Humanities where we tape our show. Our producer is Tony Field. Steve Lickteig is our executive producer, and Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at I’m Dahlia Lithwick. We’ll be back with you in a couple of weeks with yet another edition of Amicus.