Joseph Nixon, litigation counsel for the Public Interest Legal Foundation, has highlighted a conflict in Louisiana’s congressional redistricting process. He pointed out the tension between the Equal Protection Clause, which limits race-based districting, and the Voting Rights Act, which mandates consideration of race to protect minority representation.
“if you have the 14th and 15th amendment as one goalpost and the voting rights act as the other goalpost, there’s no room to kick a field goal right now,” said Nixon. “one says you can’t use race, the other one says you must use race.”
According to Nixon, this issue was discussed during an interview concerning challenges in Louisiana’s congressional redistricting case before the U.S. Supreme Court. He used a football analogy to illustrate the tension between constitutional equal protection clauses that restrict race-based districting and Section 2 of the Voting Rights Act that requires consideration of race to prevent vote dilution. This commentary supported arguments against maps drawn predominantly on racial lines.
Louisiana’s redistricting process has led to multiple lawsuits over congressional maps that added a second majority-Black district to comply with the Voting Rights Act. Federal courts have ruled such configurations as impermissible racial gerrymanders when race predominates over neutral criteria. These disputes reflect ongoing regional conflicts where attempts to meet federal voting protections result in districts challenged under the Equal Protection Clause.
Across the United States, redistricting litigation frequently involves clashes between the Voting Rights Act’s requirements for minority opportunity districts and Supreme Court precedents limiting race as the primary factor in line-drawing. Cases in states including Alabama, Georgia, and South Carolina have reached the high court with similar issues of racial predominance. Rulings consistently apply strict scrutiny to maps where traditional districting principles are subordinated to racial targets.
Nixon joined the Public Interest Legal Foundation in 2023 after decades as an election litigator representing candidates and officials in disputes across courts. He earned a Bachelor of Science in Economics from Texas A&M University in 1978 and a Juris Doctor from St. Mary’s University School of Law in 1982. Nixon served in the Texas Legislature from 1995 to 2007 and has argued over 25 appeals in state and federal courts.
___________
FULL, UNEDITED TRANSCRIPT
Leyla Gulen: [00:00:00] Welcome to the Grand Canyon Times Podcast. I’m your host, Layla Golan. In this episode, we welcome our guest, Joseph Nixon. Joseph is litigation counsel at Public Interest Legal Foundation. He’s a veteran election litigator with more than three decades of. Board certification in civil trial law, and extensive experience representing high profile officials in election and constitutional disputes.
Joseph is a former Texas State representative and has argued more than 25 appeals, has published material on election law, and recently served as special assistant to the chairman of the Federal Election Commission. Joseph, welcome.
Joseph Nixon: Thank you very much, Layla. Happy to be here.
Leyla Gulen: Yeah. So today we wanted to talk about a case that has been taken up by the US Supreme Court titled Louisiana versus Callus.
Am I pronouncing that correctly?
Joseph Nixon: Kle.
Leyla Gulen: Kle. All right. The French Way, Louisiana versus Kle. This is about whether Louisiana’s new congressional map [00:01:00] has unconstitutionally used race as the main factor in redistricting. So perhaps you can catch us up on the case’s background and where it stands today.
Joseph Nixon: Well, as you know, after every census states who have added population, you know, population shifts, they have to redistrict, they have to draw new lines so that there’s equal population among all of the congressional seats.
And like Louisiana, I believe, I believe Louisiana added an additional seat due to population changes, so they needed to redraw their lines. Very common. Every state does it. You can even do it in the mid, mid decade, but they have to do it. They must do it. After each census population shifts. So back in the sixties, Congress passed something called the VRA Voter Rights Act, and the VRA gives voters, [00:02:00] it protects voters rights so that people aren’t disenfranchised or their vote’s not diluted.
By having compact or, or, or districts drawn so that it eliminates the minority’s right to vote. And so what happened in this traditional Louisiana, there was a, a group of blacks who lived close enough together. Compact district is a think, compactness is a legal term, but can we draw a district that it would allow them to elect a candidate of their choice?
So that happened. They could do that. The question was, can you draw another district? In order for a specific minority group to elect a candidate of their choice, the pro. The problem is the 14th amendment to the Constitution says you may not take race into consideration [00:03:00] in drawing districts. Under due process, everybody has equal rights.
Well, the Voting Rights Act is you must take race into consideration to determine whether or not there are groups of, of a minority that live in a compact area that would allow a, the legislature to draw a district so that they could elect a candidate of their choice. So, so it is kind of a tough conundrum for.
Legislators, and of course it, it, it happens not just for the state legislatures, but also for cities. The city council, counties, however the counties are done, if they’re done in multi-member districts, they all have to have equal population under one man, one vote rules. So when you draw new lines, you have to look.
Is there a group who, for whom a district must be drawn? [00:04:00] But when you do that, you bump up against the 14th amendment.
Leyla Gulen: Mm-hmm.
Joseph Nixon: And so the question is. And of course, the 15th Amendment says you can’t take race into consideration at all in drawing districts. Mm-hmm.
Leyla Gulen: Yeah. Can you, can you just, before you move on, just give us sort of the, the, the Cliffs notes on the difference between the 14th Amendment and the 15th Amendment?
Joseph Nixon: Well, the 13th, 14th, and 15th Amendment are known as a Civil Rights Amendment. Mm-hmm. 13th Amendment ended slavery. 14th Amendment provided for due process. 15th Amendment Ju just says races shall be treated equally and that, that there will be no abridgement on the right to vote on the basis of race.
Those are three wonderful amendments. Very, very important in our nation’s history and to preserving our republic. And, and they’ve done by and large have done, they’ve just done a wonderful job. Mm-hmm. But when you have situations like [00:05:00] the Voting Rights Act that requires you to look at race because what, what’s, you know, what states were doing, some states were drawing lines in a manner that split the communities of interest so that that particular minority group.
Would never have an opportunity to elect a candidate of their choice. Mm-hmm. So the Voting Rights Act was important to stop that practice, but it, what happened in Louisiana is that the legislature said we absolutely wanna draw another black district. Okay. When you do that. You violate the 15th amendment because you have taken race into consideration.
When you draw. Race is a, is a factor that you is used when you draw a district.
Leyla Gulen: Yeah.
Joseph Nixon: So, so traditionally litigation is arisen because people say. You took race into consideration when you drew this district in a manner which eliminated an [00:06:00] A eliminated the community to, to elect candidates of their choice.
Leyla Gulen: Mm-hmm. So the black voters were successful in having the map redrawn. Now, some non-black voters are arguing that the new map is an illegal racial gerrymander under the 14th Amendment’s equal protection clause. Right.
Joseph Nixon: Actually it was a, it was a kind of the Republican majority in the, in the legislature that chose to draw.
Okay. A, a second of black district, black district.
Leyla Gulen: So, so the case tests the balance between protecting minority voting and limiting race-based decision making and how states draw political districts. So
Joseph Nixon: how, how Perfectly said, perfectly said, Layla.
Leyla Gulen: Okay. Well, how can courts ensure that efforts to protect minority voting rights under the Voting Rights Act don’t violate the equal protection clause by relying.
Too heavily on race
Joseph Nixon: it. These are balancing [00:07:00] tests and, and it’s very difficult and it puts courts squirrelly in the middle of redistricting a place they really don’t want to be. And now that that partisanship relationship in race have become, in some instances synonymous, it makes it very difficult for legislators to, to.
Act in, you know, in good faith, draw lines without being sued. Mm-hmm. So, so one of the things that the, the Supreme Court is wrestling is, is what level do we go to, you know, how far do the courts stay involved? Some courts, like the Fifth Circuit Court of appeals in New Orleans has said, we, you know, we don’t wanna be involved in.
These kinds of, you know, litigation, which is not clearly supported by, you know, Congress or the Constitution, and these kind of [00:08:00] claims are murky, not always clear. Some are very clear. It is a very interesting situation. In, in a county in Texas, counties in Texas are governed by a, what they call a commissioner’s court, the four county commissioners, and then they have a, a countywide elected presiding officer.
They call a county judge. In one county, the county judge said this was great. They did a great job of redistricting. They drew a district that would elect a black, a district that would elect a Hispanic, a district that would elect an Asian and a district that would elect a white or an Anglo Well, and they, they said they purposefully did that well, when they purposefully did that.
They violated the 15th Amendment by saying that was their purpose. Their purpose was to draw districts that would elect a person from each of these [00:09:00] communities, which that sounds like a good thing, but the problem is, is that they did exactly the thing that the 15th Amendment instructed them not to do.
Was to take race into consideration or have it have it be the leading factor when they, when they drew the districts.
Leyla Gulen: Should states be required to consider race when drawing districts to prevent vote dilution or does doing so risk creating unconstitutional racial Gerry Mant.
Joseph Nixon: Well, that’s, there’s where the, the big rub is.
Yeah. If, if states are required under the Voting Rights Act to take race into consideration, to the extent necessary to draw districts that support communities of interest, that’s what’s required. But when they do that, they create a situation where whereby, a, a minority group might say, you didn’t take us into consideration [00:10:00] enough.
Or you didn’t draw us enough districts.
Leyla Gulen: Mm-hmm.
Joseph Nixon: And, and there’s, and there’s been the main source of a great deal of litigation.
Leyla Gulen: Yeah. And you filed a brief, in this case, Louisiana VKA, and in your brief, you contend the challenged congressional map in Louisiana was drawn with the purpose of allocating power based on race and that it violates the 15th amendment.
So you assert the district court made factual findings supporting that racial. Purpose that race was more than just a factor, that it predominated the design of the map. Does the 15th Amendment prohibit all race conscious redistricting, even when it’s intended to protect minority voters under the Voting Rights Act?
Joseph Nixon: Well, that’s a loaded question in, in large part, yes. [00:11:00] Okay. However, there’s a balancing test that you have to go through. And the question is, is there a legitimate state? Did the state look at race and is there a legitimate state interest in doing so? The legitimate state interest in doing so is complying with the Voting Rights Act.
’cause if you don’t comply with the Voting Rights Act, a voter has a cause of action saying You have diluted my vote. And so they may look at race under the 15th and 14th amendment on, but only to the extent necessary to draw lines that support. Electing a community of interest. But then, but once you do that is the question is how far do you go?
And so the second block district drawn in Louisiana was one that was, they was flat out said, we’re drawn a district to elect a block. And they let other districting criteria like keeping cities or counties or normal geographic [00:12:00] boundaries, things that you would traditionally look at, they let those go to draw, to specifically draw a district.
So the question then is, and the district court found that that district was drawn specifically. A another African American, but that and therein lies the violation of the 15th Amendment. Mm-hmm.
Leyla Gulen: Should courts rely more on the 15th Amendment rather than the 14th or the Voting Rights Act when evaluating whether a redistricting plan was drawn because of race?
Joseph Nixon: Well, so courts, you know, courts give equal dignity to the 14th and 15th amendments. Okay. Okay. So there’s not one that they rely on more heavily than the others, but they, but there are causes of action that are supported by. Both of those amendments and then then different causes of action supported by the Voting Rights Act.
Each cause of action has its own separate elements that [00:13:00] are needed to prove. Mm-hmm. Sometimes it’s easier to prove violation under the 15th Amendment, which we think in, in Louisiana versus Cal A. It’s very easy to prove. They’ve admitted it. That’s why they did it.
Leyla Gulen: Mm-hmm. Mm-hmm. And, and what, what’s the current state of the case now?
Joseph Nixon: Well, it’s, so it’s interesting it been argued twice in front of the Supreme Court. Oh. The pre, the first time it was argued the Supreme Court. Couldn’t reach at the conclusion, and they asked for it to be re argued and they, they said, we want to consider another question, asked for additional briefing on the additional question, and then had it re argued.
So the parties argued again, just a few days ago, argument took about three hours. So the court’s really working hard at trying to get it right. Yeah. And, and, and listen, you know, you’ve asked some very key questions. And the court is struggling with answers to those kinds of questions.
Leyla Gulen: Mm-hmm. [00:14:00] Yeah. Well, yeah, it’s certainly not an easy one to reconcile, but how, how might a Supreme Court ruling in favor of the 15th Amendment.
Argument change how states approach compliance with the Voting Rights Act in the future? Because I’d imagine this is gonna have, it’d have to look at the big impacts.
Joseph Nixon: Yeah. Yeah. We’d have to look at the wording of the, of the opinion. Okay. Because how the court rules, what it rights will be, the deciding factor on how states.
Leyla Gulen: And if the court strikes down Louisiana’s map for being too race conscious, what alternatives could the state use to ensure fair representation without explicitly considering race?
Joseph Nixon: Well, they get, they’ve got another map that they’ll just go back to. Oh, so they’ll go, they’ll go back to an earlier adaptation and the court will, the will likely apply that may.
Leyla Gulen: Okay. Okay. [00:15:00] And you’ve painted a, a good picture between the 13th, 14th, and 15th Amendments, but could expanding the use of the 15th Amendment in redistricting cases weaken or reshape the role of the Voting Rights Act?
Joseph Nixon: Yeah.
Leyla Gulen: Protecting minority voting power. It will
Joseph Nixon: re, it will reshape in the role.
Leyla Gulen: Okay. May, maybe you could expand a little bit on that.
Joseph Nixon: Sure. So if the cord says you are not allowed to use. Race is a factor in drawing lines. It will alter the process. And of course it all depends on the language the court uses and the instructions they give. But it’ll alter the process. States used to comply with the Voting Rights Act. Uh, the, you know, there’s some theory that the Voting Rights Act is gonna be.
Gutted or eliminated or struck down, or lots of different people have different. Theories, but [00:16:00] I don’t think that any of that’s going to happen. I think the court’s going to probably working hard at trying to clarify this problem. Mm-hmm. If you, if, if you have the 14th and 15th amendment as one goalpost and the Voting Rights Act is the other goalpost, there’s no room to kick a field goal.
Right now. Mm-hmm. You know, there’s, there, there. The two are about each other. One says you can’t use race, the other one says you must use race. Mm-hmm. Cop is a legislature acting in good faith, tr get it right. Yeah. So, you know, they’re always gonna be sued. It seems like. It’s very common. They’ll be sued and they’ll say, and they’ll go district by district.
They’ll say, in this district you used race as a consideration in this other district you didn’t and should have. And then in this other district, you know, you did in it ended up harming of a specific group. A lot of that litigation, in my opinion, is designed to. Effectuate [00:17:00] not the rights of race, but of a political party.
Leyla Gulen: Uhhuh, are you aware of a similar case in another state and what the outcome of that case was?
Joseph Nixon: In, in, in terms of.
Leyla Gulen: Well, and the, with kind of these particulars, you know, the redistricting with race in mind and
Joseph Nixon: Well, there’s a case that there’s a case that, that we argued about a year ago. Okay. Called Pettaway versus Galveston County.
And in that case, Galveston County drew New lines, the effect of which was to turn a Democrat’s seat into a Republican seat. In doing so, an African American candidate. Was, you know, was unable to run and win. And so they claimed that it was, it was racially based. And the reason that they were claiming that they had a right, because if you add the Hispanic community and the black community together, it ended up [00:18:00] being more than 50%.
That’s where the fifth Circuit. US Court appeals for the Fifth Circuit said no. The Voting Rights Act only applies to a minority group at a time. So you’re not, you’re not able to coalesce, combine, aggregate, different minority groups in order to reach a majority minority district. The majority minority district has to be of one specific minority.
Okay. And so, so, so that has had a big. Change in redistricting law, which is one of the reasons why Texas was able to go back and redraw lines that may well elect five new Republicans to Congress because they no longer had to maintain majority minority districts. Were you aggregated? Different groups of minorities.
Leyla Gulen: So with this case, Louisiana versus Kalay, [00:19:00] when should we see an outcome one way or the other? Now that it’s going through a second pass?
Joseph Nixon: I’m not sure. Oh, you know, the Supreme Court gets their side, their own schedule. Sure. I think, you know, you, we would look to something in the spring. At the earliest.
Leyla Gulen: Interesting. Okay. All right. Well, really interesting case. I mean, it’s something that we’d like to keep our eye on until the spring. You know, hopefully when we do hear more information about it, I know that there are similar cases happening all over the place. I believe in South Carolina as well, along the coast, south of Charleston.
There were some similar issues there as well. But before we let you go, maybe you could share with our audience a little bit more about. Your organization, the Public Interest Legal Foundation, what you do there and you know, kind of what other cases you’re working on at the moment?
Joseph Nixon: Sure. We [00:20:00] have a really fine group of very dedicated and highly professional lawyers.
And other staff as well that supports a lot of the work and research that we do. So, so one of the things that we do is we obtain voter rolls from various states. Look at those roles to figure out where, if any, there are problems. Everyone has problems, but some are bigger than others. Mm-hmm. Uh, Michigan, for example, has 27,000 dead people on his photographs.
We were able to, to find and identify that. For them. I, oddly enough, Michigan didn’t want to remove his 27,000 dead people, so we sued him over that because they’re required to do appropriate list maintenance under the NVRA, so, and we are engaged in that now. We, we found that Nevada was registering people at commercial addresses and under the Nevada [00:21:00] statute, you’re not supposed to register people at commercial addresses, and some of ’em were really quite humorous.
Mm-hmm. You have people registered at casinos. Seven elevens and vacant lots and the places that didn’t exist anymore. And so we were able to work with both Clark County and Reno, I can’t remember the, the Washout county and, and to, to remove those people from the rules and to clean that up. Because you know, like some of these, some of these states, you know, they mail to every, every registrant.
So I mean, if you’re sending. Mail ballots to a seven 11 or, because, I mean, and who knows whether they’re getting voted or by, right, right. Sure. Yeah, of course. So yeah, so we’re, we, we do a lot of that work. We have a very interesting case in Texas. Texas has early voting, a long early voting period, very common.
But they also, in combination of that, allow a voter to vote at any polling place in a [00:22:00] county. So they have these, these vote centers. Mm. When you, when you go vote, it’s possible because of the way Texas has its audit laws, I know where and when you voted. And so if I know where and when you’re voted, I can actually look up your ballot.
Oh. And so the ballots in Texas are not secret. They’re not.
Leyla Gulen: Oh, interesting.
Joseph Nixon: Right. So I mean, can you imagine. The parade of horribles that would exist from voter list being well known to the public. Oh, sure. Oh boy. Where you do you get into school, do you? That’s right. Where are you on the list for people who need an x-ray or where are you if you need a.
Transplant or, uh, you know, job application or housing application, all kinds of horrible stuff. If a, if anybody could look up how you voted or I’m not, I’m not lending money to that person, they didn’t vote. [00:23:00] Right. So it’s a, it is a very huge violation of privacy. Yeah. It’s a very big right to privacy. And so we’re asserting that right under the constitution where, you know, the Constitution doesn’t say you have a right to a private vote.
In so many words, but we, we are arguing that it does. So those are the kinds of cases, you know, list maintenance, you know, voter roll clean up. Mm-hmm. Um, ensuring that people who are supposed to be on the rolls are there trying to help. Make sure that people who aren’t aren’t on the voter rolls, privacy rights, lots of different issues like that.
Leyla Gulen: Very good. Yeah,
Joseph Nixon: very successful. I have, I have to tell you something very interesting. If we will have argued on Monday. We have another argument in the court of appeals. We will have argued four cases in the United States Court of Appeals in the last three weeks. Wow. Is that a
Leyla Gulen: record?
Joseph Nixon: I don’t know who’s busier.
I mean this, you know, you can go to a major law firm and they don’t have kind of [00:24:00] of scheduled, no docket like that. It’s a little unusual for us, but we are, that’s the kind of work that we do, and we’re able to do it and we’re able to do it very well. Yeah, so, but you know, of course our organization’s Public Interest Legal Foundation, and if you go to our website, public interest legal.org, you can read about us.
We post every single pleading we file online. We’re proud of our work. You can see who, who we are is you’re what the lawyers, our background. And of course you can donate and you know this work. You know, we don’t have clients. We have. People who are generous and help us. Keep the lights on lawyers paid and you know, our work going forward.
So public interest legal.org and any, any and all donations are very well received and, and we’re grateful for them all.
Leyla Gulen: [00:25:00] Perfect. Well, Joseph Nixon, you just answered my last question, so I appreciate that and we’ll direct our listeners to your website for more information and to follow the work that you’re doing.
I wanna thank you so much for coming on and joining us on the Grand Canyon Times Podcast.
Joseph Nixon: Thank you very much for having me, and Will, I’d be happy to come back anytime you choose.
Leyla Gulen: Perfect. All right. Thank you.
Joseph Nixon: Thank you. Later. Bye-Bye.
