Emergency Podcast: Trump's Indictment, The Sequel
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Hey there, listeners. Galen here. Before we begin, I just wanted to let you know that we recorded this podcast Friday morning before the indictment of former President Trump was unsealed. We expected that it was going to be unsealed on Tuesday, so we wanted to get an emergency podcast in the can. However, it ended up being unsealed later in the day on Friday. Much of the analysis here still applies, so give it a listen.

Hello and welcome to this emergency edition of the FiveThirtyEight Politics Podcast. I'm Galen Druk. As you have probably heard by now, former President Trump has been indicted on federal charges. The indictment has not yet been made public, but the alleged crimes reportedly include willfully retaining national defense secrets, conspiracy to obstruct justice, and making false statements. This is, of course, Trump's second indictment, but his first

first federal indictment, which is also a first for a former American president.

Also, unlike the previous indictment, he's not being charged based on what appears to be a novel legal theory. Former government officials have been repeatedly charged for such alleged crimes. Most prominently, maybe think of former CIA director David Petraeus, who pleaded guilty to removing and retaining classified information while having an affair with his biographer. Also news today, as we're just beginning to record, is reporting on a recording of

of Trump describing some of the documents that he took, suggesting that he knew what he was doing and understood that the documents were indeed national secrets. So let's talk about what's at stake here for the president and the country and how this may be similar or different to the scandals Trump has confronted

so far and here with me to do that is senior reporter amelia thompson devoe hello amelia good morning good morning galen also here with us is senior elections analyst nathaniel rakich hey nathaniel good morning hey galen back so soon with you i know i know indeed so so much for that one podcast a week plan yeah really truly um here we go amelia

Set aside basically all of the context of what makes this indictment newsworthy. And let's pretend for a moment that I, podcast host Galen, was charged with what Trump appears to have been charged with.

How would you advise me? Would you be like, Galen, this is really serious. You definitely need a lawyer up and you should expect to face prison time. Would you say like, if you take a plea deal, you can probably get it down to a misdemeanor. Like, just forget that we're talking about a president for a second and advise me. Galen, I would advise you to run for president, Galen.

You would advise that I run for president. I know you're not a lawyer. I know you're not a lawyer. You're not a lawyer, but you are a legal reporter and you've covered the courts and you're like digging into these charges or potential charges. And I just want to know, like, yeah, you're not a lawyer, but like we're in the office together. And I'm like, Amelia, man, I just got indicted. What should I be thinking about?

They're like, go to the beach, man. Enjoy your life. No. I mean, so I would first say that I am not qualified to give you legal advice because

But then if you insisted, I would say that federal charges are really serious. You know, federal prosecutors are very good at their jobs. The people on, you know, if you were especially being indicted by Jack Smith, who is a internationally renowned attorney and his team of also very high level attorneys, and you were charged with

all of these potential crimes, which we can go through, you should absolutely get a lawyer. And, you know, I mean, there's a reason that a lot of federal charges just end in plea deals and don't go to trial because federal prosecutors generally don't file charges in cases. They don't feel strongly they can win. So we need to see the indictment.

We're going to get that on Tuesday, it seems like, when Trump is arraigned in Miami. But, you know, if I were Trump or you... Or me. ...in this situation where you took classified documents home with you and then tried to, I guess, resist giving them back, allegedly, yeah, I'd be concerned. And I would definitely lawyer up. And it's just very hard to say because...

There are so many possibilities here for Trump. You know, he could cut a deal. He could take the risk of going to trial. We don't know how this is going to unfold. Trump is not a normal defendant. But for a normal defendant, federal charges are serious. Can I ask, Amelia, presumably it's too early, but do we have a sense for when a trial would be, right? I haven't seen any reporting on that. Have you guys? No.

I mean, this is what I understand. Would it be a similar timeline to the first one, though? No, I mean, it couldn't be, right? I don't think any reasonable judge would have a defendant try to defend themselves in two courts at the same time. Given that we know the Manhattan DA, the timeline for the Manhattan case is March of next year. It would either have to be an extremely expedited timeline, right?

Or it would have to come after that, which is like prime time for the election. So. Right. So like that's what I'm thinking is that like the trial in Manhattan was like a year after the indictment. If this trial trial would also be a year after this indictment, then we'd be looking at next summer, which really I mean, that's like, you know, approaching the convention and like maybe that's an incentive for Trump to to cut a deal.

I mean, Trump is going to try to delay. We know that this is a legal strategy that he employs. He's employing it in the New York case. He's used it to great effect in the many civil cases that he's been involved with over the course of his life.

I don't want to speak to timing at this point because I genuinely don't know. I mean, Jack Smith, the special counsel, was clearly trying to get these charges out as quickly as humanly possible because Trump is a candidate and the election is coming up.

There is a very strong incentive on the part of the federal justice system to not put a thumb on the scales of federal elections. So I think the timing for this is going to be really tricky. I mean, under normal circumstances, yes,

It takes a really long time to get to a trial. There are a lot of steps beforehand. A trial itself is time consuming to put together. People mostly cut deals beforehand. So, you know, under normal circumstances, it would be extremely fast if this trial happened before the 2024 election. But obviously you have the issue then of if Trump decides

wins the primary and then wins the general election, then we're running into this question of can he be tried as a sitting president? So it's complicated. And I do not know how the judge assigned to this case will handle it.

Before we delve further into the politics of all of this, I do want to get a better sense of what we know about the severity. So from the reporting on the charges so far, is there any sense of why he would have taken these documents? Like, okay, so he took the documents. He seemed to allegedly took the documents, allegedly refused to give them back, and

seemingly the conspiracy part of it would be talk to other people about not giving them back. But is it clear from any of this why he would have taken them? Is there any kind of, I mean, I think reportedly he said they were keepsakes or something like that. He said so on Truth Social. But do we have any sense from the reporting on the charges that he actually intended to do anything nefarious or that the Department of Justice has uncovered any plans to do anything nefarious?

I mean, at this point, we really, I think, need to wait to see the indictment before we can say anything specific.

I'm looking at the charges. It doesn't look like there's necessarily evidence that Trump had a really nefarious purpose in mind, like he was going to take the classified documents and sell them to a foreign enemy or a terrorist group or something, you know, like, obviously, we'll have to see how the DOJ presents the evidence that they have in the indictment. But

you know, presumably the charges would be, there would be more charges on those lines. We'll have to see. But I mean, I think a plausible theory, and again, this is just a theory, that Trump, you know, was mad he lost the election. He took some stuff home with him. And then once he realized that that's really not allowed, and he realized that, oh yes, the government is actually going to be very serious about getting this back.

Then he started trying to throw sand in the gears. And that's when all of this stuff escalated. Like, it does seem like he took them, at least from the reporting around this, he took at least some of them deliberately because we have tapes of him bragging about having them. And so he knew that, too. Like, he didn't have the plausible deniability of saying, you know, oh, it's so hard to move out of the White House. We just took one box of these classified documents. I'm so sorry. I'll give them back.

You know, he like knew they were classified documents. He took them. And then when the government starts knocking on his door, he freaks out and, you know, starts lying to his attorney. And then his attorney lies to the government. And like, you know, it sort of steam, like snowballs, snowballs. That's the word I want into something much bigger. That's a potential theory. But again, we really need to wait for Tuesday, which I know is an annoying answer, but it's the main one I have.

Okay, so that's some good context. We'll have to wait to learn more. But continuing with the logistics of all of this and the severity of all of this, before we get to the politics, as we mentioned earlier,

Trump is going to be arraigned in Miami and this trial is going to play out, or assuming there's a trial, this case is going to play out in Southern Florida and not D.C., which where there was a grand jury impaneled and might have been the case. But it sounds like because the alleged crimes took place at Mar-a-Lago, the venue needs to be in South Florida. So what does that mean, Amelia, for a potential jury and also the judge who is going to be overseeing this case? So...

Let's talk a little bit first about why they might have changed the venue, because I think that's also significant. The prosecutors are making a tradeoff here because they would be better for them probably to bring the charges in D.C. First of all, it's more convenient for them. You know, I mean, that's kind of a minor consideration, but maybe not such a minor consideration, depending on how much they're having to fly down to Miami.

And DC is just going to be a friendlier venue for this kind of case in terms of the jury and potentially in terms of the judges, hard to say on that one. But they switched the venue to Florida, or at least like the bulk of the charges seem like they're going to be brought in Florida. It's possible that some of them could still be brought in DC, but it seems like mostly it's going to be in Florida. And it seems pretty clear that they did that because they wanted to head off from

a legal attack over where the charges were filed from Trump's legal team. Because remember, in addition to trying to delay, Trump is going to try to get this case thrown out. I mean, Trump doesn't want to cut a deal. He doesn't want to go to trial. He wants to get this case dismissed. And one of the ways that he could do that if the charges were brought in D.C. is by arguing that this is not where the alleged crimes took place.

The judges there don't have jurisdiction, et cetera. So by doing this, the prosecutors seem to be making a trade-off that the legal fight in D.C. actually might be pretty risky for them, and it could delay them quite significantly or even get the case thrown out. That being said, they are also—

making some sacrifices by having the case in Florida. First of all, it's potentially more friendly to Trump in terms of jury selection if we get to that point. And I mean, that's going to be a whole conversation about how jury selection even happens if this goes to trial. But Florida generally is, you know, it's a friendlier place to Trump than the District of Columbia, I think is safe to say. And then, you know,

The pool of judges is different, and specifically in this case, Judge Aileen Cannon, who is a district court judge in Florida, has been at least initially assigned to this case. And listeners may remember her from last year when she was assigned—

to the case involving the documents that were seized at Mar-a-Lago. And she appointed a special master to review the materials and basically gave Trump a series of wins that were kind of legally inexplicable and that she was scolded for by higher courts, even in the relatively conservative 11th Circuit.

So prosecutors knew they had, you know, the possibility of drawing this judge. Now they have. And we're going to have to see how she handles it. Yeah, it's all interesting how important some of these details can be. She's a Trump appointee. I should add that. So that's another layer is that Trump appointed the judge who is going to be overseeing his trial, which is just, or, you know, not the trial. We don't know if it's going to trial yet, but the proceedings. I mean, it's just like there just are so many...

aspects of this case that are different from your run-of-the-mill federal case that we just like they could just it could just go in in all kinds of directions because trump is such a unique figure so you're saying this isn't anything like if i were charged for retaining national defense secrets i don't want to i don't want to continue to harp on that example kaylin but i would say that yes i

Probably if you were to get legal advice from a qualified person, it would be a little bit different than the legal advice Trump is getting. That's just my guess. Okay, so let's dive into the politics. We have been through this rodeo once before, although obviously the details of the case were very different in Manhattan, the hush money case. So what happened last time was...

His favorability ratings dropped and then they rebounded to where they were before. And also in the time since then, his standing in the Republican primary has only improved, particularly over Ron DeSantis. Nathaniel, is there any reason to believe that things will be different this time around? There is reason to believe that.

But I'm not sure it will shake out that way. So I think the, you know, the interesting thing that raised my eyebrows were was a May poll from YouGov and Yahoo News, which basically asked, like, how serious are the various like investigations or like allegations against Trump?

And Americans said 52% to 32% that falsifying business records to conceal hush money payments to a porn star was a, quote, serious crime. So, you know, decent support for that. But it was a lot more resounding when it came to taking highly classified documents from the White House and obstructing efforts to retrieve them. They said 63% to 20% that that was a serious crime.

So that, you know, it does seem like Americans think this is a more serious case. And we saw this with, you know, we talked about this a little bit with the story of McDaniel's case as well. Not only the kind of, you know, the novel legal theory part of it, but also that Americans kind of were a little more, you know, skeptical that the circumstances of the case were, you know, a serious crime. The other interesting thing is, you know, I think that, you know, the kind of

The cumulative effect of this, I think, is important, right? So, like, one indictment, you know, you know what they say, one indictment, shame on you, two indictments, shame on me. No, but, like, you know, obviously... Yeah, I mean, that's quite literally what Republicans will be saying. Like, you know, at this point, it's a shame on the whole, you know, legal system, the whole system of justice that they're trying to, you know, basically hang a former president.

Right. But I do think that you have, you know, like, obviously there's, there's more stuff out there. There's, you know, the Fulton County investigation into his interference in the election. There's January 6th. Um, and, and then there's also the possibility, right, that he gets convicted. And that I think is probably the real damage to him. So the same you got Yahoo, uh,

Yahoo News poll found that 62% of Americans said Trump should not be allowed to serve as president again if he is convicted of a serious crime. And remember, 63% said that taking classified documents was a serious crime. So, you know, there's, you know, there's a path for I think for this to be a problem for him. Of course, it's, you know, long time in the future, and things can always change, and there can be a recession and, and all that jazz. But, but yeah, that said, you know, I think

This indictment in particular, I don't really like. We saw that it only helped him in the Republican primary. His polling lead has doubled over Ron DeSantis, basically. And I think that we know that among the general electorate, he's already damaged by a lot of scandals. This one, the story of Daniels, you don't want all the other ones.

And he's quite unpopular. And it seems like, you know, as you mentioned, Galen, in our average of his favorability rating, it did go down a couple of points after his first indictment, but it kind of rebounded. And that could have just been because of, you know, Trump fans were not as excited about responding to the polls because it was like a not great week for him. But like he obviously has that floor of support that doesn't seem like it's going away anytime soon.

Is it relevant, you think, Nathaniel, that the charges are coming from Biden's DOJ? I mean, that's something that I've seen just mentioned all over conservative media. You know, it's Trump charged by Biden administration, Trump charged by Biden DOJ. Trump himself is taking great pains to point this out. I mean, it is a dicey political situation that

I mean, I think I think, you know, I'll be interested to hear from you, Amelia, about, you know, what it might mean for like, you know, trust and, you know, the public opinion.

institutions and like you know the fairness of the the justice department and stuff like that but i kind of feel like that's just echoing what we saw with the first indictment where everybody was like this is a democratic district attorney gone rogue like you know they're gonna make you know like conservative media and republicans are going to point out the you know the like political witch hunt quote-unquote like nature or potential of this um

in, you know, kind of no matter who is bringing the charges. And, you know, that is going to like basically for a lot of Republicans, I think it's going to be like, oh, yeah, like obviously this makes it a witch hunt because this is, you know, being brought by by a Democrat and a political actor. I'm not sure it will

I feel like the fact that Americans as a whole think that this case is more serious probably means this is a bigger danger than the New York case, despite the fact that Biden or the Biden administration is the one that is bringing the charges. But obviously, there's so much uncertainty.

Yeah, Nathaniel, I think so. The spin is basically the same, but the facts on the ground are different, right? Alvin Bragg is literally a Democrat who ran on prosecuting Trump and was elected with that message. And so it's easier to say, like, this is a political process. Jack Smith.

That is not so. Jack Smith is not a political actor whatsoever. No, he's not. And I mean, there are many layers between Biden and the people who are working on this case. I mean, Biden is not in any way directing this. We have no evidence of that. We should be super clear about that. And so while the spin is the same, the facts on the ground are very different. But the spin is important, right? Because

Basically saying a majority of Americans or a solid majority of Americans, 60 some percent, say that this is serious and that if he's found guilty of this, should not be president. You know, that matters for a general election. Right now we're in a primary and that spin is going to matter a lot to primary voters. Like I was wondering after the indictment came down yesterday, are we going to see more Republicans than last time?

say, okay, this is actually serious. Trump shouldn't be running for president, or we need to see what the actual charges are. And if they're serious, take them seriously. And also because now the primary field has filled out a lot more, you would think there's more incentive to really attack. And that wasn't the case. I was honest. I mean, I don't know if I should have been surprised or not. I was a little surprised that you weren't seeing more from

DeSantis or Pence or whatever, like they basically said, this is the Department of Justice gone rogue. I'm going to when I'm president, I am going to correct the situation, not really actually attacking their opponent. Like even Glenn Youngkin, who has pitched himself as a moderate and isn't running for president.

you know, or at least so far as we know, is pitching this as a witch hunt, basically, of the Department of Justice gone rogue. And we know that in situations like this, the combination of Republican elites and conservative media will go a long way in dictating how the public sees it, how Republican voters see it in particular, which means,

what? Like we could see Trump's sort of performance with Republican voters even improve after this. Like he's more of the victim. He's more in the news cycle. What are you thinking? Yeah. Well, I think, I think first of all, it's worth noting that, um,

You know, a difference this time is that you have Chris Christie and Asa Hutchinson in the race who have been the two most willing to criticize Trump in the past. And they did, you know, basically criticize him over the indictment. So I don't want that to get lost in the shuffle. And Asa Hutchinson did last time, too, and no one paid attention. He wasn't a candidate yet. I don't think Asa Hutchinson's presence is really going to be the make or break thing. And maybe not Chris Christie's either. Right. Yeah. Yeah.

But yeah, no, for the most part, yeah. I mean, it's interesting, right? DeSantis and Pence are kind of... They're criticizing DOJ. I wouldn't say that they're defending Trump super vociferously. Vivek Ramaswamy is defending Trump. He has said, I will pardon Trump in this case if I am elected president. Ron DeSantis and Mike Pence aren't saying that. They're just saying DOJ is so political and isn't that terrible and kind of using it as a way to attack Joe Biden. Which like...

I don't know. I mean, sure, that's the way that they—I mean, you know, Alex Samuels has written this for the site after the first indictment. Like, they're a cop between a rock and a hard place because, like, you know, if they attack Trump, they're going to end up in the Chris Christie situation where Republicans have turned on Chris Christie. His, like, favorability ratings are underwater because he has become known as, like, an anti-Trump person, as well as many other things. Yeah.

And and but but obviously, if they don't kind of make the case against Trump, you know, he's going to keep on rising, presumably in the polls. And I think they've decided that like this is like, you know, they get the points for like scoring on Biden. But like, you know, they avoid pissing off Trump voters. And but like, I do think that like.

they are making him out to be a victim in a way that does help him in kind of a rally around the flag type of effect, right? Like there is this natural inclination, especially Donald Trump is the leader of the Republican Party in much the same way that like the president in the time of war is the leader of the country. And, you know, when the leader or the country or the party is seen as being under attack, you know, the natural human instinct is to rally around the leader. Yeah. All right. Well,

Does anyone have anything else to say about this indictment? Before we move on to one other newsworthy thing that happened yesterday and probably got lost a little bit in the shuffle, but is certainly in our wheelhouse here at 538, which is the Supreme Court ruling on Section 2 of the Voting Rights Act. Anyone? Anyone? Takers? Takers? We're done? Okay, we're talking about the VRA.

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Yesterday, today is Friday, we're recording on Friday, Roberts and Kavanaugh sided with the liberals on the court to form a majority upholding a lower court ruling that Alabama had violated Section 2 of the Voting Rights Act in drawing its congressional map. Essentially, it only drew one majority black district and plaintiffs were arguing that there could be two majority black districts drawn together.

in that case. Section 2 of the Voting Rights Act essentially says that if there is racially polarized voting and that the minority group is not able to sort of sufficiently elect the candidate of its choice, then the state is compelled to draw districts in which that minority group forms the majority and is capable of electing the candidate or has the opportunity to elect the candidate of its choice.

This law was written in the 80s. It was interpreted in the 80s, went into full effect in the early 90s. And we've seen sort of a big difference in how districts get drawn ever since then. There was some thinking that this was going to be Section 2 of the Voting Rights Act's last straw and that the conservatives would form a majority and basically say, no, the states are not compelled to draw these majority minority districts out.

in circumstances like the one in Alabama. Amelia, I've been asking you a lot of difficult questions this morning, but thank you for playing along. If I were a state drawing congressional map, how much trouble would I be in? No, if I were an Alabama congressional district, so if I was John Roberts, why would I decide this way and Kavanaugh for that matter?

Yeah, so I would think about Roberts and Kavanaugh slightly differently because Roberts is an especially interesting figure when it comes to voting rights. He is someone who has basically...

you know, in his, in spent the early part of his career trying to narrow the Voting Rights Act. He has been very clear that he thinks that there are situations where it is applied inappropriately, that it's applied too broadly. Um, and his court has been very aggressive in narrowing the scope and applicability of the Voting Rights Act.

I should note that this is not a trend that the Roberts Court started. It's something that has been happening over a period of decades at the Supreme Court. But I do think it's fair to say that it has accelerated under the Supreme Court, under Roberts. And only one of the seven cases that involved the Voting Rights Act that the court has heard went in a liberal direction. And of course, one of the ones that went in the conservative direction was the 2013 ruling

authored by Roberts that essentially gutted Section 5 of the Voting Rights Act, which was the other major component of the law. Which was reviewing state-level changes. Right. It was if a state had a history of discrimination before they made changes to the way that they ran their elections, they had to run it by the federal government. And the Supreme Court said, essentially, you know, the country's changed. This doesn't apply to our situation anymore. And Congress could, in theory, have gone back and fixed it, but they did not.

So Section 5 is functionally dead.

Um, so why would Roberts vote this way? Um, two theories that I wrote about on the site yesterday. The first is that Roberts is an institutionalist and he was worried about what the perception of the court would be if they gutted section two, especially so soon after last year's Dobbs ruling. Um,

I think there's been quite a bit of coverage. I mean, we've been covering this for years. Other people have been sort of covering this more and more, that the Roberts Court is very aggressive on voting rights. And I think generally it's gotten harder or riskier for the court to issue rulings that threaten rights in the wake of the Dobbs ruling. Because obviously that's talking about a constitutional right.

the Voting Rights Act is in a slightly different category from a legal perspective. But in terms of how people perceive this, it's dangerous to come in and be seen as the court that every year is knocking down a right that many Americans think is important. And that may have affected Kavanaugh too. I

I mean, obviously we're not in these guys' heads, but Roberts and Kavanaugh vote together a lot of the time. Kavanaugh is the other conservative justice who's known to have kind of institutionalist leanings. And really interestingly, Kavanaugh is the one who broke the tie early in 2022 when this case came to the Supreme Court after the lower court had ruled that Alabama's map had to be thrown out.

The Supreme Court took the case, but they had to decide, is this map going to be used for the 2022 election? And Kavanaugh broke the tie saying that it could be used for the 2022 election. Roberts was on the other side. So, you know,

Obviously, Kavanaugh had this whole theory about how it was too close to an election to be making changes, et cetera, et cetera. We don't know exactly what his motivations were, but it's interesting that he shifted over that period of time. And then the other theory is just that Republicans asked for too much, that they overplayed their hand.

Um, you know, when I was reporting our big curtain raiser for this piece last fall, all the legal experts I talked to stressed that this is a really standard section two violation. This is something that is really, you know, um,

you could have drawn that second district you didn't and alabama was having to make some pretty radical arguments about the voting rights act basically arguing for a race neutral voting rights act or even in one of their lines of argument that considering race for redistricting is itself a violation of the constitution which is like a really head spinny way of thinking about the voting rights act

And so it's also possible that Roberts and Kavanaugh, while being conservative, are not willing to rubber stamp literally everything that the Republicans bring to them.

And Republicans may have to adjust their strategy a little bit to account for that. So I think those are the two main explanations. It is a bit of a surprise. I do wonder how this case would have turned out in a different political climate. But this is the one we're in. And this is the outcome we got.

I think in all of this, it's worth talking a little bit about the history of Section 2 of the Voting Rights Act, which has a really complicated history, right? So the law was written in the 80s, and it was interpreted by the Supreme Court then to mean that, as I said, where there's racially polarized voting and there's the possibility of drawing a majority minority district, states are compelled to do so.

And the first round of redistricting where this was applied was after the 1990 census. And it helped lead to the drawing of many majority black districts across the country. And some people would say even black.

in sort of packing black voters and therefore, in large part, Democratic voters, helped lead to the Republican Revolution takeover of the House in 1994, in that when you pack Democratic voters, black voters in this case,

It makes it easier to elect Republicans in the districts around them. And I talked, you know, I obviously reported out the jam ending project and I talked to folks in North Carolina who, you know, voting rights advocates, civil rights advocates who said, you know, like,

these Republican consultants were coming to the NAACP and saying like, hey, I have all this, you know, I have the software, I can help you draw these majority black districts, I can help you draw them, and we're going to sue to compel that states draw them. And when, you know, of course, in southern states, Democrats controlled most of state governments then, and Democrats would try to draw these really sort of like

wild looking districts to have a majority black district, but also still try to elect Democrats around the district using a combination of black voters and rural white voters who were still pretty Democratic then. And so in the beginning of Section two of the Voting Rights Act history, Republicans were big advocates for it because it was helping them win more congressional districts and more seats in state houses throughout the South.

And in the time since then, there's a new wave of more progressive voting rights advocates who question whether or not this majority minority movement

district standard is good, whether packing black voters is good and have tried to chip away at it and say, no, it doesn't need to be majority minority. It just needs to have enough of the minority group to allow those voters to have the opportunity to elect their candidate of choice. And I do also wonder in this case, if it will sometimes make it easier for in future cases,

Republicans drawing state maps, or anyone maybe drawing state maps to say, no, if we're going to draw a Voting Rights Act district, it has to be majority minority, it cannot just be an opportunity, you know, a minority opportunity district, which which could be, I don't know, maybe a roadblock for some, you know, on the progressive side, who want to make the standard a little bit lower. So that's also a question that came up in all of this for me.

Yeah, I mean, I think it's certainly not the case that Section 2 is out of the woods here. I mean, you know, if you know anything about the way John Roberts operates, he is an incrementalist and he really has the long game in mind. So it's possible that we're on this podcast again in five years, right?

We're all grizzled, even more grizzled than we are, talking about how, you know, this seeming victory led to actually a surprise twist that made it much harder to enforce Section 2 in a way that was... I guess more that what I'm saying, Amelia, is that there's quite a history of Republicans. I'm not saying conservative legal theorists. I'm saying Republicans actually liking Section 2 of the Voting Rights Act.

I mean, right. But in this case, though, it did not benefit them. It does not benefit them. And Nathaniel wrote a good piece for the site yesterday that he should talk about, about how this is pretty clearly a win for Democrats, at least in the short term. You should talk more about that. Yeah, Nathaniel. So everything I said aside, in this case, it's a win for Democrats. Although in the past, it has been a win for Republicans. I just I've

I feel like some of that nuance got lost a little bit yesterday in terms of the history of Republicans liking Section 2 of the Voting Rights Act. Obviously, in general, conservative legal theorists do not because they don't think race considerations should be made in the drawing of districts at all is the more conservative legal theory. But Nathaniel, in this case, how does this change our congressional maps for 2024 and beyond?

Definitely hands—well, it kind of reaffirms this weapon that Democrats have. It's presumably going to embolden them and help them in kind of some existing lawsuits that are making their way through some lower courts, and even one that is kind of pending before the Supreme Court from Louisiana. But yeah, so there are several states, particularly in the South,

That could draw additional minority majority districts or minority opportunity districts. So Alabama is obviously one of them. That could be a legal question.

Right, exactly. So well, so the interesting thing, so Alabama is obviously one of them. This decision means that Alabama will gain another like black opportunity district, regardless of whether it is actually a majority black population or not. It will almost certainly elect a Democrat. So that's plus one Democrat minus one Republican from Alabama next year, basically guaranteed. There is a very similar case in Louisiana that

that the Supreme Court said, "Yeah, we'll get to you after we deal with Alabama." But I think it makes it extremely likely that the kind of the progressive side will prevail in the Louisiana case as well. It is, again, demonstrably easy. I have seen maps in Louisiana that have two majority black districts, and that also would presumably lead to another Democrat getting elected there.

The only question there is kind of like the timing, right? That seems like something that could be decided today or maybe it tries to get dragged out and obviously we're basically a year out from the election. Louisiana is interesting. This is a little aside. If Galen gets an aside about the 1980s and history of the Voting Rights Act, then I get a little aside about Louisiana filing deadlines.

um, Louisiana has the unique situation, right? Where it's primary is the general election and that has a runoff. So it has a very late start to the political process. So in that sense, actually that could benefit Democrats where like, if this case doesn't get decided, even until like next summer, um, they could still implement a new map, um, that adds a democratic seat, uh, in time for the election probably. Um, so yeah, so that's two seats for Democrats there. There's also a case in Georgia, um,

where, you know, again, you can draw another black opportunity seat in the Atlanta area. That's one where you could maybe it maybe you wouldn't like it would result in like not a Democratic gain because Democrats already have like some seats in the Atlanta suburbs.

But that's a question. And then there are questions in places like South Carolina and Florida where it's very hard to draw a majority black, an additional black majority district, at least without looking very ugly. But, you know, and so the courts have had standards that like it's not just like, you know, you have to draw, you know, any black majority district as possible. It needs to be like reasonably compact, right?

And so those lawsuits might have a little bit of a harder time prevailing, but it is theoretically possible to draw those additional black opportunity seats. There's also a voting rights lawsuit over the Texas map with Latino voters and stuff.

So, yeah, you know, but of course, you know, Latino voters are not kind of as loyally Democratic as Black voters. Yeah, there are commonly majority Latino districts in Texas that elect Republicans. Right, right. So that's less of an obvious gain. But, yeah, but so Democrats, I think, are going to gain at least two seats from this and possibly a couple more, depending on how things shake out in those other states. All right. Well, a much longer break.

emergency podcast than I imagined. But we will continue covering this as the news comes. We're going to leave it there for now. Thank you, Amelia and Nathaniel. Thanks, Galen. And before we go, just as a heads up, because of the way this news cycle is shaking out, I expect that our next podcast is going to be on Tuesday after Trump heads to Miami and is arresting

Arranged there as opposed to on Monday. So you have a Friday podcast. You probably won't get a Monday podcast, but you will get a Tuesday-ish podcast.

Anyway, we will be back with you soon enough. My name is Galen Druk. Tony Chow is not in the control room, which is why there's no video for this podcast. He's on vacation. I hope you're still enjoying vacation. You can get in touch by emailing us at podcast at 538.com. You can also, of course, tweet at us with questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we'll see you soon.