The Law Dork Q&A with voting rights lawyer Abha Khanna

Coming off a big Supreme Court win, Khanna tells Law Dork: "The fight matters. It’s not just what keeps the hope alive for another day, but actually makes the difference in elections."

Abha Khanna outside the U.S. Supreme Court building after oral arguments on Oct. 4, 2022. (Photo courtesy of Elias Law Group.)

On Monday morning, Abha Khanna will be one of several lawyers appearing at a “remedial” hearing in Birmingham, Alabama, addressing Alabama’s latest congressional map.

The map still contains only one majority-Black district — a decision that Khanna and other plaintiffs’ lawyers will be arguing is not enough under prior court rulings. As she and her colleagues put it in an Aug. 7 filing in the case, “Alabama is fighting a battle it has already lost.”

The hearing over Alabama’s latest map follows the U.S. Supreme Court’s high-profile June 8 decision upholding Section 2 of the Voting Rights Act and the Gingles test used to consider race-dilution redistricting claims under the law. As to Alamama, the justices, in a 5-4 decision, affirmed lower-court decisions finding that Alabama’s map — which only contained one majority-Black district — violated Section 2 under that standard and that a second majority-Black district “or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice” was necessary.

As noted earlier at Law Dork, Alabama lawmakers followed up that ruling by passing various maps — all of which, including the one Alabama Gov. Kay Ivey ultimately signed into law, similarly only contained one majority-Black district.

Now, the lawyers — Khanna and her Elias Law Group colleagues, the NAACP Legal Defense and Educational Fund (LDF), and others — are headed back to court, facing off against Alabama. Yet again.

Khanna, a partner at Elias Law Group, runs the firm’s redistricting practice and is also engaged in other voting rights cases. She argued the case at the Supreme Court for plaintiffs challenging the state’s earlier map alongside Deuel Ross, the deputy director of litigation at LDF, who argued on behalf of other plaintiffs challenging the map.

Before the hearing in Alabama, Khanna sat down with Law Dork in Washington, D.C., on Aug. 8 — as Ohioans were voting down Issue One — to talk about the Alabama case and, more broadly, litigating voting rights cases in the current political and legal environment.

And, a tough environment, she acknowledged, it is.

“If anything has been established from these quote unquote, remedial proceedings, in Alabama, it's that the need for Section 2 is greater than ever, alive and well,” Khanna said.

Of course, it’s not only Alabama — as Khanna knows all too well. The state, the litigation, and the state’s response — even to a Supreme Court ruling against it — is, however, emblematic of how difficult Khanna and other voting rights lawyers’ paths are these days — and of all of the obstacles that can be thrown in their way.

LAW DORK: What was it like the morning of the Supreme Court’s decision? 

KHANNA: Look, the morning of the decision was an extremely wonderful day. We knew for weeks that it could be any day. We were ready. You never know when it's going to happen. I was on the West Coast [where Khanna lives]. So it was early for me, I was making breakfast for my kids, and preparing them for school, when my phone kind of blew up. So it was a bit of a tizzy, for sure. It took a good long while before I could actually sit down and read the whole opinion. 

One of the first people to call me was one of our named plaintiffs, LaKeisha Chestnut, who had actually been in the earlier iteration of this case. She'd testified at the trial. And she called me she said, “Abha, did we just win? Is that really — is that our case? Did that just happen?” She was in tears. It was just a really momentous day I will never forget. 

Any lawyer will tell you, the day that they won a case in the Supreme Court is a day that they will never forget, regardless of the case, regardless of the expectations.

LAW DORK: Did you expect that after argument?

KHANNA: This is kind of the question, right? Was it a surprise? I think there was a lot of concern that the Supreme Court was going to do something that would take the Voting Rights Act backwards. During the argument, what I heard from those justices who spoke was they were not willing to follow Alabama down the down the most drastic path of completely invalidating Section 2 of the Voting Rights Act or turning back the clock in one fell swoop. 

Alabama had offered [the court] multiple options of doing it incrementally — anything from, “This court [below] got it wrong” to changing the standard but not eliminating the law all together. After argument, anything could have happened. I felt pretty confident that the most extreme and dire thing wouldn't happen, but understood that it could still be quite extreme and dire for the court to change the standard. It might not look as extreme and dire as saying, “We're striking down the Voting Rights Act.” But if the Court were to say that the standard we've been living under for the last 40 to 60 years is now completely altered — “we're now going to make it harder for plaintiffs to come into court and prove racial discrimination under the Voting Rights Act” — that would be an extreme and dire and devastating outcome to my clients, to our case, and to a lot of voting rights litigants. 

So, certainly, I was aware of all the dangers, all the ways this could have gone wrong, and, I was thrilled, heartened — all the good feelings — when I saw that that the court did not choose any of those paths.

[W]hat had given me confidence and hope, throughout, including before the opinion came out, was that Section 2 has been pretty constant. Congress has been extremely clear, on multiple occasions, even very recently, in a bipartisan fashion, about reaffirming it, and what it proscribes and what is required in order to satisfy it.

Congress has been in a constant conversation with the Supreme Court to make sure they're on the same page about what, in fact, is required. For instance, back in 1982, Congress specifically spoke to a Supreme Court opinion, when they amended the Voting Rights Act to say, “No, no, plaintiffs do not have to come in and prove racial animus and discriminatory intent.” And the Supreme Court in 1986 said, “OK, that's the law.” And so there has been a solid and consistent and relatively uncontroversial conversation among these institutions that we've all been able to rely on for a very long time — that this is the law.

It's been relatively stable and unquestioned — and I would say unquestionable. And so the fact is, when Chief Justice [John] Roberts wrote this opinion, it's not a remarkable opinion. It is pretty —

LAW DORK: Workmanlike.

KHANNA: Exactly. There's no huge revolution or revelations. “Here's what the law is. We said it, Congress said it, and it still is the law.”

LAW DORK: I almost took that as Roberts’s way of trying to avoid another right-wing backlash against him. “Look, all I'm doing here is, ‘This the law. This is what they did. This is why it's wrong. And that's the end.’”

KHANNA: It’s pretty simple. And frankly, we weren't asking for anything more than that. We're not the ones coming to the court with any kind of novel or inflammatory or rhetorical arguments. Our argument was just that the precedent is clear, the facts are clear, apply the law to the facts, just like we learned to do in law school. And that's the end of the story. 

It was the defendants, it was the state of Alabama who had come to the court saying, “Actually, let's totally upend everything that you have said in the past. Let’s totally upend precedent, and expectations and the and the factual standard, the legal standard, the [entire] landscape.” They were the ones pushing that revolutionary argument. 

And so, the fact that the actual opinion ended up being quite ordinary was a complete win for us, because what we were asking for is quite ordinary. 

LAW DORK: There also, however, were four dissenting justices willing to take up at least some of Alabama’s arguments or otherwise take the Voting Rights Act backwards, as you put it of people’s concerns. And, then, there was Justice Brett Kavanaugh’s concurrence to the court’s decision, raising the possibility of an O’Connor-esque time limit on Section 2. How do you respond to that, for your broader litigation and for this case? 

KHANNA: Look, will the argument be out there, all the various ways to try to undermine, undercut, and perhaps eliminate Section 2 of the Voting Rights Act? Absolutely. 

I don't think Justice Kavanaugh’s concurrence invented an argument that hadn't already been out there. And I don't think we can read too much into it to suggest that that's even a winning argument. We, as voting rights litigators, understand that there will always be — the fight will never be over, and certainly not anywhere close to over yet. There will always be a new challenge, either to the facts, or more broadly to the law. This fight isn't gonna go away easy. 

The idea of there being a time limit, this was addressed slightly — I think actually fulsomely in the briefs. The fact of the matter is there was a reason there is no sunset provision in Section 2 and that’s because Section 2 has its own built-in sunset provision. Section 2 says … that you take a totality of circumstances approach to every case. You analyze the actual jurisdiction, you analyze the racial and political facts on the ground, you analyze contemporaneous events — history, socioeconomic issues — all these things in connection and interaction with the voting laws that are being litigated. And you decide if, in this time, in this place, this law is diluting the minority vote, this law is contributing to not having equal access to the electoral process for minority voters. 

What that means is, in many areas, it just won't pass that test. One the first things you need to do to even get in the door — to get past the post — are what they call these three Gingles preconditions. Part of that is showing that there's racially polarized voting — that the minority group in question, here Black voters, the majority of them are voting in one direction cohesively for one kind of candidate, and that the white majority is voting cohesively in the opposite direction, such that, as long as they are the white majority in the district, they're going to consistently and usually defeat the Black-preferred candidate. 

The fact of the matter is — and it should come as no surprise — that it is was beyond dispute and was not disputed in Alabama that racially polarized voting was at its zenith. That Alabama has completely racialized politics and that Black and white voters are on different sides of the electoral spectrum is not even a fact that was ever in dispute. And certainly by the time we got to the Supreme Court, that was a given. That's just not the case in a lot of places in the country. You see Black and white voters voting together for the same kind of candidates. We call it white crossover voting, because while Black voters are often pretty cohesive in favor of the Democratic Party, white voters are not always cohesive against Black-preferred candidates. And so, in certain parts of the country, you won't need Section 2 of the Voting Rights Act because you'll never be able to meet that test. Because society will have gone beyond those kinds of racialized politics. And that's just one element of [the test]. 

The test is a really meticulous kind of detailed understanding of life and electoral politics in that jurisdiction. And the way it's set up is to say, “If the politics of this area are so intensely racialized such that they consistently defeat minority preferences and result in systematic lack of equal access to the electoral process, where all those ingredients add up, you will have a Section 2 violation.” Where jurisdictions and areas have moved beyond those racial politics, you will not have a Section 2 violation. You don't need to create an artificial timeline for that — because one should hope and one will have seen that that's going to happen more organically. 

One of the amicus briefs before the Supreme Court did a survey of all of the Section 2 Voting Rights Act cases over the last 30 or 50 years, and the vast majority of them fail.

LAW DORK: I think that was the brief that Roberts like cited to in that section of his opinion that was like, “This is very hard.”

KHANNA: It's a very hard test. And it's not a free pass by any means. It's meant to address a really serious problem that exists where all the of the relevant factors are pointing uniformly in one direction. And unfortunately, Alabama is still there.

Abha Khanna, on Oct. 4, 2022, the day of oral arguments at the U.S. Supreme Court in the Voting Rights Act case over Alabama’s congressional map. (Photo courtesy of Elias Law Group.)

LAW DORK: Alabama, being the giving state that it is, did not want you to have the summer off. And they went back to the legislature and, as anybody who's been following this now knows, said, “We’ll do what we want,” and did not create a second majority-minority district and sent it to Gov. Kay Ivey, who signed it quicker than I've seen her sign anything. And now you're back in court again. 

KHANNA: And will be in Birmingham next Monday. Yes.

It is extremely disappointing the way Alabama has chosen to respond to the clear instructions of the court of what is required in order to remedy the Section 2 violation — even after the US Supreme Court rejected its case. It has now lost between multiple federal courts. And not in a kind of wishy-washy way — in a very clear way. The court's rulings have been very methodical, and have been very direct, and plain. There was no question about what Alabama needed to do or needs to do to in order to remedy this violation.

LAW DORK: What we've heard from the Republicans is “No, no, it's at or something close to it. We did that, 40% is close to it.” 

KHANNA: No, that's not what [the court] said, actually. What it said was, “You need to have either a second majority-Black district, or a district that otherwise allows an opportunity for Black voters to elect.” And, as a practical matter, because of the intense racially polarized voting that has already been established in this record, that's going to have to be a district that's either at 50% over 50%, or pretty darn close. 

LAW DORK: Because of the polarized voting, 40% is a joke. 

KHANNA: Yes, 39% is not close enough to 50%. That is kind of point one. 

But the real point is: What's the opportunity to elect? Let's look at the opportunity to elect. Let's look at the election of minority preferred candidates in their new district, their new CD 2. 94% of the time, those Black-preferred candidates will lose. That is not an opportunity to elect — that is a district in which Donald Trump wins the last presidential election.

And here's the other thing — that's actually not in dispute. The performance of the district is not even in dispute. The state of Alabama submitted a brief [see paragraph 11] saying, “We don't intend to dispute the evidence that they have about minority electoral performance. We don't intend to disagree with that.” In fact, what they're doing is just objecting to the premise. They object to the premise that they should have to be drawing such an opportunity district in the first place. So instead, what they've done is gone back and said, “Well, we're going to draw this district differently. We're going to draw our map differently. And then we're going to come back to court and say, ‘Well, here's why you guys got it wrong. And our new map is evidence of that.’ And this is basically for us to show why we actually never had to draw an additional minority opportunity district to begin with.” 

This is not a remedy map. This is a continuation of the legal fight they have already lost, including on appeal before the Supreme Court.

LAW DORK: A lot of people were saying at the passage — Alabama reporters, other people — that this was a vote that they just needed to take because their constituents wouldn't allow them to make a second map and they know that the district court will do it for them. Because of what you just laid out that so clearly.

KHANNA: There's no dispute this is not a performing map, there's no dispute this does not provide the remedy that the district court called for. It is disheartening, to say the least, that the legislators of Alabama — even upon multiple defeats in court — could not stomach the idea of even entertaining a second opportunity for Black voters. 

It is even more disheartening, that instead of just saying the legislators couldn't get the votes to do it, “Court, now it's up to you,” they are stridently going back to the court to say, “You got it wrong in the first place. And not only are we not able to draw the map, we're not willing to draw that map, and we don't think should make us draw that map in the first place. And we're going to take this up again. And we're going to fight you on every ruling that you already made. We're going to fight you on every finding that has already been established by this court and affirmed by the Supreme Court, because come hell or high water, Alabama will not provide Black voters an equal opportunity to elect their candidate of choice.”

They will not provide equal opportunity to access the political process. 

And the position taken by the legislature in the legislative process, that is what it is. The position taken by the state of Alabama in the legal process is brazen. It is straight-up defiant of what the court has ordered and has on multiple times now ruled is the issue for the court right now on remedy. And it is reminiscent of what Alabama had said was a long sordid past from long ago, the days from the ‘60s, from the ‘80s, from the early 2000s, where Alabama continued to — in the face of federal court injunctions and federal court orders — would resist and resist it and resist it. And we're going to be back in Birmingham next Monday with that same posture. 

If anything has been established from these quote unquote, remedial proceedings in Alabama, it's that the need for Section 2 is greater than ever, alive and well. And the lengths that the state is willing to go to to make arguments they've already lost on, to incur massive expense — not just their own legal bills at the taxpayers expense, the same Black voters who they are depriving of their equal access to the franchise are paying the bills for Alabama’s lawyers — but not just that, at the end of this road, they will be on the hook for attorneys fees. And they know that.

They are just saying, “You know, we've lost, we've lost, we've lost, but we are refusing to accept that defeat because Alabama doesn't provide Black voters an opportunity to elect. That's not what we do. And we'll give you every reason why we refuse to do it. And we'll keep fighting.” And that has been just, maybe I was naive to say I was ever expecting something different. I was. I thought we'd litigated this. I guess I thought we were all going back to the table in good faith to follow what the court has said. But it sounds like Alabama's new approach is to tell this court, the Supreme Court — who knows — that, “You guys probably didn't mean what you said. You must have gotten it wrong.”

LAW DORK: In some ways, this is sort of the best amicus brief that you could get for Kavanaugh’s concurrence — that he doesn't need to worry, if there is a time, it's no time soon.

KHANNA: It’s certainly not now. We are not in a position to retire the Voting Rights Act today. 

LAW DORK: A lot of people have concerns that this process that you're talking about, and what Alabama is doing — process might be too nice of a word, but — the efforts that Alabama is engaged in is ultimately an effort to make it so that the next election also is not with a second district.

KHANNA: Oh, 100%. That's beyond dispute, I think.

LAW DORK: That's clearly their goal. But is that a legitimate concern — that Alabama can effectively strong arm the court again?

KHANNA: I think Alabama would tell you today that its goal is to ensure that there's no remedy in time for the next election or the next election or the next election. So, whatever they’ve got to do to get to the next election and stave off any remedy? Sure. Is it likely to succeed? Gosh, I mean, again, I'm a lawyer who reads the law, read the facts, read the cases, I don't see how it succeeds. I don't see how you get this court, three federal judges, who have then been affirmed by the U.S. Supreme Court, to then, for any of these mechanisms [being used by Alabama], to say, “Oh, well, we have to grind this whole thing to a halt, again, to have the exact same argument that Alabama has already made and already lost.” It doesn't make sense to me. 

So no, I don't think there should be any danger of that. I don't think that because that's what the law and the facts require. I don't think that because I'm a voting rights litigator who's worked really hard along with a lot of people to get to where we've been, and that opinion means something. Winning in front of the Supreme Court on these issues means something, and it should have real and tangible effects for the Black voters we represent in Alabama, for Black voters in the United States who should be able to rely on the protections of the Voting Rights Act that the U.S. Supreme Court just reaffirmed. 

Because I believe in the law, because I have to wake up every morning and I — the honor of my life is to be able to do these this work on behalf of these voters — I cannot accept the idea that another election, that this judicial system will allow another election to go by when we've gotten this far. When the liability under the Voting Rights Act is this clear, and the solution to that problem is this plain and apparent to everybody.

LAW DORK: Obviously, there’s also a lot outside of Alabama. And everybody reading this knows your firm here, with Marc Elias, that you’re everywhere. And that the other side is everywhere, too. Just taking a step back, what is your sort of top-level advice to people who care about this? Who feel like you do. They are concerned. You've got voters in Ohio today, my home state, voting on a measure that could effectively make amending the constitution impossible for the people. How do you tell people to still care in this environment?

KHANNA: Oh, my gosh, still care? You have to care! Will there be actors out there looking to undermine voting rights? Yes. Is that going to go away with one or two or 10 good decisions in our favor? No. But what, if anything, we learned from this last cycle, it's that the law matters, good advocacy matters, and the fight can actually reap real rewards. This is not a Sisyphean battle that we're fighting here. We can make actual strides forward, we can make actual gains for voting rights, and we can absolutely stave off the threats brought by state legislatures and sometimes in state courts — threats to undermine those voting rights. The fight matters. It’s not just what keeps the hope alive for another day, but actually makes the difference in elections, makes a difference in the ability for someone to be able to cast their ballot, makes the difference in the ability for somebody to feel like their vote matters, and that somebody is fighting for them. 

So, why should we still care? Now is the time to care. Because if the other side is going to be fighting hard, we’ve got to be fighting even harder to maintain our position, to advance our position, and to ensure that the right to vote remains inviolable in this democracy. If you never cared before about voting rights litigation, now is the time to care.

“[I]f the other side is going to be fighting hard, we’ve got to be fighting even harder to maintain our position, to advance our position, and to ensure that the right to vote remains inviolable in this in this democracy.”

LAW DORK: You have been speaking of states that love fighting democracy. You've been down in Florida fighting their efforts to make it make it harder to vote. What is it like to fight in Republican trifecta states like that, fighting legislative enactments knowing that they’ll likely just come back the next year and do something again.

KHANNA: Sometimes it does feel a little bit like Whack-a-Mole. But at the same time, like I said, these are real victories. For instance, Florida had this omnibus voter suppression bill called S.B. 90. They've now got what we would call a new omnibus voter suppression bill, directed primarily at third-party voter registration organizations, called S.B. 7050. And we're now litigating that latest one in court. And we immediately sought a preliminary injunction against some of its most blatant violations of the Equal Protection Clause and First Amendment. And we secured that injunction. Those elements of the law will not go into effect until we get a final resolution in this case. 

LAW DORK: Now, obviously, lawyers can describe it in a very technical way. It certainly doesn't make it any better, maybe makes it worse, but this was obviously a Republican-led effort in the Florida Legislature and from DeSantis that would harm Democrats. As somebody who litigates all of this and sees the broad map of all of the types of legislation that's passing, all the types of problems, is it more concerning to you when there appear to be laws that are just like, rough stand-ins for party control?

KHANNA: I think the party control part of it is — not a false narrative, but it should be irrelevant. Because whatever the end game here, what they're actually saying is that more voters hurts their electoral chances. “We want to prevent there from being more robust elections that include more voters.” The fact that that has become a Republican versus Democrat issue is a problem. That's not just like politics as usual. Republicans and Democrats should fight for their voters. We believe in this, they believe in that. If you were an alien descending from space, you would think there are a few things we can agree to, which is that when you set up a democracy where people vote, more voting is better, more people should vote. Of course, they should vote lawfully, they should vote within the rules, but more participation is better. You’re going to get a more reflective representation that way. 

Where the political strategy is to say, “More voting actually doesn't help my party, doesn't help our people to stay in power. We want to be now anti-majoritarian.” That's a real problem. Republicans and Democrats can fight each other. That doesn't keep me up at night. That's what political parties are meant to do. That happens the world over. But where the fight goes to the voters, and says, “We’re basically going to disenfranchise and kneecap voters from even showing up at the ballot box, so that they can’t vote for their preferred candidate, they don't even get to have their say, whatever their say is, they don't get to have it. Whomever they vote for, they never even get to show up.” That can't be a policy, that cannot be a partisan football anymore. And I feel like we should be able to get to a place where we can all say, “People should be able to vote. Voting is good. Not voting is not good.” 

We see a lot in the rhetoric in this Florida bill and elsewhere about like, “What about fraud, what about this, and whatever.” Look at the bill that we're challenging. They don't have a shred of evidence that there's a problem being solved. There's no problem they're solving for in penalizing organizations from bringing in more voters. It's a mythical beast out there. So what they're actually doing is saying, without actually solving any problem, “We’re going to make it harder to vote in Florida.”

That should really — talk about striking at the heart —that should strike at the heart of every Floridian.

Publication notes: The Q&A was edited for length and clarity, with final copy edits made at 11:55 p.m. Additionally, the introduction was edited shortly after publication to reflect that Khanna’s plans had changed and she would be appearing remotely for the Monday hearing.