At the very moment the Supreme Court appears to be moderating on voting rights, GOP judges are going after America’s most important voting rights law.
The Supreme Court, after a long period of hostility toward any claim brought under the federal Voting Rights Act, recently signaled that this hostility has limits. Last June, the Court surprised nearly everyone who follows voting rights litigation by declaring Alabama’s racially gerrymandered maps illegal and ordering the state to draw a second majority-Black congressional district.
Yet if the Supreme Court’s June decision in Allen v. Milligan (2023) was supposed to be a signal that the justices intend to keep at least some safeguards against racism in elections in place, several Republican appointees to the lower courts missed the memo. Last week, as most Americans were thinking about their Thanksgiving dinners, a pair of federal appeals courts handed down some of the sharpest attacks on the Voting Rights Act — the landmark 1965 law prohibiting race discrimination in US elections — in the law’s history.
The first was an opinion from a divided panel of the United States Court of Appeals for the Eighth Circuit that, if affirmed by the Supreme Court, would virtually destroy the Voting Rights Act.
The Eighth Circuit’s opinion in Arkansas State Conference NAACP v. Arkansas Public Policy Panel, written by Trump Judge David Stras, would strip private parties of their ability to file lawsuits enforcing the Voting Rights Act and establish that all such lawsuits must be brought by the Justice Department.
This decision is dead wrong, and it conflicts with decades of precedent.
As Judge Lavenski Smith notes in dissent, over the past 40 years litigants have brought 182 successful lawsuits under the Voting Rights Act. Only 15 were brought solely by the DOJ. So, if Stras’s unusual reading of the law were correct, nearly 92 percent of all of these victorious lawsuits should have ended in defeat for the plaintiffs.
Then, on the day after Thanksgiving, the 11th Circuit handed down its own decision attacking a core principle of the Voting Rights Act. Trump Judge Elizabeth Branch’s opinion in Rose v. Secretary isn’t quite as aggressive as Stras’s wholesale attack on the landmark law — while Stras’s opinion could potentially neutralize the Voting Rights Act in its entirety, Branch’s opinion would only permit states to use one particular method that has historically been used to disenfranchise voters of color.
Specifically, Rose asks whether states may elect multi-member bodies such as a legislature using an “at-large” scheme where every member of the body is elected by the state as a whole. As the Supreme Court warned in Rogers v. Lodge (1982), “at-large voting schemes and multimember districts tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district.” Thus, in a state like Georgia, where white people make up nearly 60 percent of the population, white voters can join together to prevent the Black minority from electing anyone to a state board if the state uses an at-large system to elect those board members.
Nevertheless, Branch’s decision in Rose would make it extraordinarily simple for states to use at-large systems that could not be challenged in court — even though both the Supreme Court and lower federal courts have repeatedly permitted challenges to at-large systems that lock racial minority groups out of power. Branch’s opinion even lists nearly a dozen cases challenging such at-large systems.
These decisions, both by Trump judges, should alarm anyone who cares about voting rights. While the Court’s decision in Milligan suggests that, at the very least, Stras’s attempt to nuke the Voting Rights Act is likely to be reversed by the current panel of justices, judges like Stras and Branch are hardly outliers among the right-wing advocates and Federalist Society stalwarts that Trump appointed. If anything, their records suggest they are right in the heartland of modern-day Republican appointees to the federal bench.
And that means that, even if this Supreme Court resists these new efforts to destroy the one federal law that likely did more than any other to end Jim Crow, there is a serious risk that the entire law could fall if Republicans — such as Trump himself — get to appoint more judges to the Supreme Court.
Stras’s opinion is a trainwreck
The specific question in the Arkansas case is whether Section 2 of the Voting Rights Act, the provision that allows lawsuits challenging racially discriminatory voting practices by states, may be enforced by private parties or if these lawsuits may only be brought by the Justice Department. For decades, courts — including the Supreme Court — have allowed private parties to bring such suits.
And, as Judge Smith wrote in his dissent, 167 of these private plaintiffs have brought successful lawsuits under Section 2, including the plaintiffs in the Milligan case.
To understand why Stras’s opinion departing from this longstanding consensus is wrong, it’s helpful to understand the Supreme Court’s decisions governing what are known as “implied rights of action.”
Sometimes, federal laws contain language explicitly stating that private parties have a “right of action” (meaning a right to sue) against certain defendants. Other times, a legal document may explicitly state that private parties may not file certain lawsuits. It is common, for example, for presidential executive orders to contain language stating that the order does not “create any right or benefit” which can be enforced in federal court.
But what if a law does not state either way whether it permits private parties to bring lawsuits to enforce that law? In short, the answer to this question has changed over time. In J.I. Case v. Borak (1964), decided the year before the Voting Rights Act became law, the Supreme Court held that courts should read federal statutes generously to allow the parties who benefit from those laws to bring federal lawsuits.
“It is the duty of the courts,” the Supreme Court held in Borak, “to be alert to provide such remedies as are necessary to make effective the congressional purpose.” The Supreme Court explained a few years later, in a Voting Rights Act case, that “a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action.”
So under the rules that existed when the Voting Rights Act was written in 1965, it clearly should be read to permit private lawsuits.
That said, post-1965 decisions, handed down by more conservative courts, have held that the judiciary should be more reluctant to find implied rights of action within a federal statute than the Court was in Borak. The most significant of these decisions is probably Alexander v. Sandoval (2001), which held that “statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’”
So, under Sandoval, if a federal law uses language like “no state shall do X” instead of “all persons have a right to X,” courts typically should not permit private lawsuits under that statute.
The thrust of Stras’s opinion in the Arkansas case is that Sandoval should be read retroactively to neutralize the right of private parties to sue under the Voting Rights Act. This decision is fundamentally unfair to Congress, as Sandoval was handed down nearly four decades after the Voting Rights Act became law. So Congress couldn’t possibly have known that it had to write the law in a particular way if it wanted to authorize private lawsuits.
It’s also not entirely clear that Sandoval cuts off private suits under the Voting Rights Act, even if it is applied retroactively. Recall that the inquiry under Sandoval hinges on whether a statute refers to the entity it seeks to regulate, rather than the “individuals protected” by that statute. But the Voting Rights Act uses both kinds of language.
While the relevant provision starts with the phrase “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State,” it goes on to forbid any voting practice “which results in a denial or abridgement of the right of any citizen of the United States to vote.”
Sandoval, moreover, also states that “the judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy,” and that “statutory intent on this latter point is determinative.” And there is overwhelming evidence that Congress intended to create a private right of action when it wrote the Voting Rights Act.
Again, Congress wrote the law against the backdrop of decisions like Borak, which emphasized that private parties should generally be allowed to sue to enforce their legal rights. Federal courts have understood the law to permit private suits at least as far back as the 1960s. And Congress has amended the VRA multiple times, but it’s never questioned the longstanding assumption that the law permits private lawsuits.
Federal civil rights law also includes a catch-all statute, known as “Section 1983,” which permits state officials to be sued if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.”
The Voting Rights Act law secures a right to be free from race discrimination in elections. That means that, even if the Voting Rights Act itself doesn’t authorize a private cause of action, Section 1983 permits lawsuits seeking to enforce the rights created by the Voting Rights Act. Indeed, the Supreme Court just reaffirmed in Health and Hospital Corporation v. Talevski (2023) that Section 1983 gives private individuals broad authority to sue to enforce their statutory rights.
Stras’s approach, in other words, isn’t simply wrong, it is obviously wrong. And his Arkansas opinion will lead to disastrous results if it is not reversed. As the Supreme Court warned in Allen v. State Board of Elections (1969), the Voting Rights Act “could be severely hampered … if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.” Among other things, “the Attorney General has a limited staff and often might be unable to uncover quickly” new state policies that target voters of color.
In fact, Stras’s approach would likely shut down the Voting Rights Act almost in its entirety whenever Republicans control the White House. During the entire Trump administration, the Justice Department’s voting section brought only one lawsuit alleging discrimination under the Voting Rights Act — and that was a fairly minor suit alleging that the method of electing school board members in a South Dakota school district “dilutes the voting strength of American Indian citizens.”
Branch’s opinion is also a trainwreck
The one good thing that can be said about Judge Branch’s opinion in Rose is that, unlike Stras’s Arkansas opinion, it doesn’t attempt to destroy the Voting Rights Act almost in its entirety. But the Rose opinion is still wrong, and it betrays a hostility toward federal voting rights that raises serious questions about whether the three judges who decided the Rose case have any familiarity with American civil rights history.
As noted above, courts fairly frequently hear, and sometimes strike down, at-large voting systems because of their impact on voters of color. While such systems are not always illegal, they run afoul of the Voting Rights Act when, in the words of the statute, an at-large system “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
Branch’s opinion, however, would likely greenlight such systems whenever they are used on a statewide basis, rather than by a county, municipality, or other, smaller governmental body. Though Branch acknowledges many decisions where courts have struck down at-large systems used by city councils, school boards, and the like, she claims that Voting Rights Act lawsuits have “never been used to invalidate a statewide election system on vote dilution grounds.”
That may well be true, but it is a meaningless distinction. The Voting Rights Act’s text applies equally to “any State” as well as any “political subdivision” of a state. So the statute applies with equal force both to statewide practices that violate the law and to similar practices by city councils or other smaller bodies. Branch’s opinion is entirely at odds with the law’s text.
To this, Branch replies that “general principles of federalism” require her to uphold the state of Georgia’s practice of electing all five members of its Public Service Commission on an at-large basis — “federalism” refers to the idea that states retain some degree of sovereignty that cannot be taken from them by a federal law.
But the concept of states rights, as anyone who has even the most basic understanding of American civil rights history will understand, has no place whatsoever in a Voting Rights Act lawsuit. The entire purpose of the Voting Rights Act was to prevent Jim Crow states, including Georgia, from running their elections in ways that depart from the federal commitment to racial equality.
The Constitution, moreover, is quite clear that Congress — and not the state of Georgia — has the final say on how elections will be conducted in that state, at least when race discrimination is an issue. The 15th Amendment prohibits states from denying or abridging the right to vote “on account of race, color, or previous condition of servitude,” and it provides that “Congress shall have the power to enforce this article by appropriate legislation.”
To justify her decision, Branch relies heavily on the 11th Circuit’s decision in Nipper v. Smith (1994), a Voting Rights Act case that challenged Florida’s practice of having all of the voters within a given judicial circuit elect the judges in that circuit — that is, on an at-large basis. The plaintiffs in Nipper argued that these judicial circuits should be chopped up into sub-districts, with each sub-district electing a subset of the circuit’s judges.
But Nipper rejected this solution in no small part because it would have undermined the Voting Rights Act’s goal of fostering racial equality. If Florida judges were elected by sub-districts, the court warned, that would mean that judges in majority-Black sub-districts would be chosen by Black voters, but judges in majority-white sub-districts would be chosen by white voters. This system, the court feared, would be “detrimental to … fair and impartial justice” because all of these judges would continue to have jurisdiction over the entire circuit — and thus judges elected solely by white voters would continue to hold authority over Black litigants.
Nipper, in other words, rejected a cure that was worse than the disease. It held that federal courts should not break up an at-large system of electing judges if the solution would lead to more judges being elected by insular white majorities who may very well be hostile to the interests of Black voters. That’s a far cry from Branch’s claim that vague appeals to “federalism” justify weakening a statute whose entire purpose is to strip states of some of their authority over election administration.
Moreover, while Branch’s opinion, on its face, is limited to Voting Rights Act challenges to statewide at-large systems, her freewheeling appeal to “federalism” has serious implications for all kinds of voting rights lawsuits by suggesting that states have some ill-defined right to resist voting rights legislation that school boards or city councils do not.
So what should we make of these two decisions?
If Arkansas and Rose had been handed down a year ago, they would have seemed like an effort by lower courts to move in the same direction the Supreme Court has been moving for several years.
Prior to Milligan, the Roberts Court’s record in Voting Rights Act cases was almost unrelentingly hostile. In Shelby County v. Holder (2013), the Court’s Republican appointees simply made up a doctrine — “the principle that all States enjoy equal sovereignty” — that is never once mentioned in the Constitution in order to justify striking down a key provision of the Voting Rights Act. In Brnovich v. DNC (2021), the Supreme Court similarly made up a bunch of limits on the Voting Rights Act that cannot be found anywhere in any legal text, such as a strong presumption that voting restrictions that were in place in 1982 are lawful.
Faced with these precedents — decisions that, in Justice Elena Kagan’s words, “mostly inhabit[ ] a law-free zone” — Stras’s and Branch’s disregard for longstanding law might be understandable. After all, the Roberts Court frequently hands down Voting Rights Act decisions that do not even attempt to ground their holding in constitutional or statutory text.
But Milligan suggests that the Supreme Court may be moving away from this hostility. Unlike Shelby County and Brnovich, Milligan hewed closely to longstanding law. As the Court said in Milligan when it affirmed a lower court decision striking down Alabama’s gerrymandered maps, that decision “faithfully applied our precedents.”
At the very least, Stras’s and Branch’s opinions are likely to force the Supreme Court to resolve this tension between Milligan and its previous, less justifiable decisions undercutting the Voting Rights Act. Neither lower court judge’s decision is persuasive. But they are entirely consistent with the law-free zone the Supreme Court seemed to erect around the Voting Rights Act in cases like Shelby County and Brnovich.
Regular giving, even in small amounts, can save lives.
It’s Giving Tuesday, and it’s time for me to do what I do on Vox every Giving Tuesday: encourage people to give more money to effective charities.
Over years of doing this, I’ve gotten a long and familiar list of objections. I decided this Giving Tuesday to try my best to answer them.
What are you asking me to do?
I am asking you to give 10 percent of your pretax income to a charity that saves lives. I personally give my 10 percent to GiveWell’s top charities fund, which redistributes it to highly effective global health charities like the Malaria Consortium and Helen Keller International. GiveWell estimates that for every $5,000 gift, these charities will save one human life.
I think of GiveWell as like the charity version of an index fund: It’s a rigorous, impartial recommender that you can donate to without having to pick and choose individual causes. It’s also, disclosure, an advertiser on Vox podcasts, though I’ve been using it since long before that was true.
10 percent seems like a lot.
It’s significant. For the average American household, which has an income of roughly $75,000, it’s a $7,500 commitment. That’s a real bite, but it’s also more than enough to save a life.
I don’t know if I can afford 10 percent …
That’s fair! Can you do 5 percent?
Maybe …
I would go as low as 1 percent!
But then that’s only $750 a year, and that can’t save a life.
Well, every five years you would. And if you want to do more good, we can always go back to 10 percent!
Okay, okay, 10 percent. Isn’t that kind of religious?
For sure: The practice of tithing in many world religions is a key inspiration here. The twist is that I’m suggesting tithing not to religious institutions but to highly effective charities (which could be religious or not — it’s not their beliefs that matter, but their effectiveness).
So why these particular charities?
Because there’s a huge, huge difference between what the most and least effective charities can accomplish with donations. You might think that charities are like brands of dish soap…
I’ve never once thought that.
It’s an analogy, give me a second. The absolute best dish soap is probably, at most, a tiny bit better than the average brand, right? I mean it’s just soap. Even Wirecutter says “you probably can’t go wrong with most name-brand dish detergents.”
Fair enough, soap is soap.
But really, charities are more like chef’s knives. The difference between the best and worst knife is enormous and affects the entire process of cooking, or so it has been explained to me by superior cooks. It’s the difference between an enjoyable time in the kitchen versus pure drudgery (and a heightened chance you inadvertently chop off your fingertip).
So what does this have to do with charity?
What it has to do with charity is that the vast majority of nonprofits have no evidence of positive impact at all, and even charities brave enough to agree to rigorous tests of their impact see widely variable effectiveness. In global development, something like 60 to 70 percent of interventions tested show no results at all, which effectively means the money donated could have just been thrown down a hole.
And among those that do show results, the size of the impact varies drastically. The researcher Benjamin Todd has looked into these questions a lot, examining nine different databases of program impact, and found that in every context, from US social policy to global health to the UK’s National Health Service to estimates of climate policies, the results are “fat-tailed.” That’s statistics talk for the conclusion that the best interventions are much, much better than the average interventions.
How much better are these super-interventions?
It depends, but here are a couple of examples: The most cost-effective treatments examined by Britain’s National Health Service were 120 times more effective than the median treatment. A World Bank study found the most effective interventions in global health were 38 times more effective than the median ones.
And why should I care about giving my money to the 38-times-more-effective place?
Because it lets you do a lot more good. Suppose you’re giving $7,500 a year. If you gave that to an average global health program, you’d be providing 30 more total years of healthy life to a few people, per the World Bank data.
30 years of life! That’s pretty good, right?
It’s great. But If you put that money toward one of the 2.5 percent most cost-effective interventions, you’d save about 1,275 years of life.
Holy shit, I can provide a millennium of extra life?
Quite possibly! These are necessarily rough numbers and you shouldn’t take them too literally. You might merely save hundreds of years of life. But the magnitudes here strongly suggest that you should be careful about choosing where to donate, because the difference between the best and the merely okay is huge.
There’s a reason the philosopher Toby Ord, who originated the “10 percent of income to effective charities” pledge idea, has argued that cost-effectiveness is a moral imperative, on par with the moral imperative to give money at all.
So I looked at the GiveWell list of top charities … why aren’t there any working in the US?
Good question. The short answer is the US is a rich country, which means everything tends to cost more than it does abroad — including the cost of helping people in need. The US still has extreme poverty, in the global, living-on-$2-a-day standard, but it’s comparatively rare and hard to target effectively. The poorest Americans also have access to health care and education systems that, while obviously inferior compared to those enjoyed by rich Americans, are still superior to those of very poor countries.
To be blunt: People in the US simply are not dying for want of a $1.50 anti-malaria pill. (For one thing, the US managed to essentially eradicate malaria transmission from within its borders.) That means it is much, much more cost-effective to help people abroad.
How much more cost-effective?
Here’s one example. Years ago, GiveWell actually looked into a number of US charities, like the Nurse-Family Partnership program for infants, the KIPP chain of charter schools, and the HOPE job-training program. It found that all were highly effective but were also far more cost-intensive than the best foreign charities. KIPP and the Nurse-Family Partnership cost more than $9,000 per child served, while a program like the Malaria Consortium’s prevention efforts costs around $4,500 per life saved.
There’s been less work on evaluating US charities in recent years than would be ideal, and I’d love to hear about charities that can save lives here very cost-effectively. But right now, the evidence suggests to me that it’s much more expensive to save lives in the US than abroad.
But … I still want to help people closer to me.
That’s a commendable impulse! I get it, really, and if the most I can convince you to do here is give 10 percent of your income to fight poverty in the US, then you should do that and I’ll take the win.
But I would also ask you to consider the idea that people in other, much poorer countries have equal moral weight to those who live in your country. Their lives matter just as much. And if you can help, say, 100 of them for the cost of helping one American, and you choose to do the latter, you’re making an implicit choice to value Americans much more than non-Americans. I think there might be valid reasons to make that choice — but it’s not one I want to make, so that’s not how I donate.
What about animals? This all sounds very human-centric. Animals count, too!
Indeed they do. I think the best critique of GiveWell’s list — well, less a critique than an argument not to use it exclusively — is that you can do even more good, even more efficiently if you try to help animals, especially farm animals bred and raised in extreme suffering just so they can be slaughtered. There are billions of them, and very little is spent trying to help them. If you want to help them, Animal Charity Evaluators has some good suggestions of where to give. I’m partial to the Humane League, which pressures corporations to improve their treatment of farmed animals.
This all … sounds like effective altruism.
It does because it is. Todd and Ord were among the founders of effective altruism, and generally the community and people in it have developed a lot of the ideas you see above, from the focus on cost-effectiveness to the “give 10 percent” idea to taking animals seriously.
Didn’t effective altruists do a bunch of crimes lately?
A bunch of EAs definitely did a bunch of crimes very recently. Sam Bankman-Fried and several of his colleagues at FTX and Alameda Research identified as EAs and stated that they were only becoming billionaires to donate the proceeds to effective charities. Of course, they turned out to be stealing lots of money in the process and Bankman-Fried has since been convicted in federal court. (Disclosure: In 2022, Bankman-Fried’s philanthropic family foundation, Building a Stronger Future, awarded Vox’s Future Perfect a grant for a 2023 reporting project. That project is now on pause.)
So he did crimes because of these ideas?
I don’t think we know, but there are some theories. One theory is that Bankman-Fried took the idea that you should make as much money as possible and donate it as efficiently as possible, and ran waaaaaay too far with it, to the point where committing outright fraud to make money to donate made sense to him, on the apparent grounds that the potential good that could be done with it was worth the risk to himself and many others. Other theories hold that he was just lying the whole time, never cared about doing the right thing, and used EA as a cover for his own greed. Either way, it reflects very badly on EA.
So why are you asking me to take these effective altruist ideas seriously?
Because they’re good ideas and they’re in danger of being totally discredited because of some effective altruists who didn’t even take the “donate a lot of your income to normal charities that save lives” part of the philosophy seriously. Look at SBF: He distributed a bunch of money to causes he valued, but they were explicitly not causes involving giving people lifesaving medication right now. They were more speculative “longtermist” causes — things like AI safety and preventing global catastrophic risks. Whatever you think of that behavior, it’s precisely not what I’m asking you to do right now.
If they didn’t take these ideas seriously, why should I?
Because you have the opportunity to save lives, right now, and you should take it.
This whole thing where you think I’m, like, obligated to give this much is weird.
I don’t think you’re “obligated.” I just think it’s a good thing to do and that you should consider it. If everyone did it, we could end global poverty and then some. And I don’t even think it’s purely an altruistic good thing. I think it’ll be good for you as a person, too.
Oh, really? I should selfishly give away 10 percent of my income?
That’s honestly a big part of why I do it.
Really? For yourself?
Sure. Look, I think it’s important to do good for other people, in and of itself. That’s a major motivator, definitely.
But … you ever wonder if your life has meaning? If it makes any kind of difference to the world? Personally, I want to live a life that means something, that leaves things ever so slightly better than I found them. I want to be pursuing goals that aren’t just material. I don’t want to mark the progression of my life solely through raises and promotions, or fall victim to the subtle pressures that push me to spend more and more of my money on gadgets and furniture that make me progressively less happy.
What on earth are you even talking about?
I’m talking about a problem that, for me, giving 10 percent of my income away helps solve. One, it helps establish a baseline meaning or impact from my work — if nothing else,I know that the money I make through my job contributes to saving people’s lives. That has to count for something. That’s a source of real meaning and pride.
Two, it provides a powerful counterforce to the treadmill that comes as you age and make more money, a treadmill that pushes you to spend lots of it to keep up with your peers or feel like you’re living better. There are definitely times when I feel like I’m not taking as nice a vacation as my friends are, or where I feel kinda cheap for having mostly Wayfair furniture while my friends have a nice, solid wood dining table. Sometimes I blame the donations for these feelings.
But mostly I am thankful for them. The idea that, after you reach a certain level of baseline comfort, additional consumer spending is going to make you dramatically happier is a seductive lie. And one of the few weapons I have against it is the knowledge that I face a very real choice between, say, getting one of those amazing lie-flat business-class airplane seats for my next vacation and saving a human being’s life. That lets me resist the former, and live a life that feels just a tiny bit more meaningful.
Okay, fine, I’m in. Where do I sign up?
The group Giving What We Can runs a pledge, which I and thousands of others have signed, for people who commit to donating 10 percent of their income to highly effective charities. You can sign if you want. But the main thing to do is just give.
Monday’s extension is good news for anyone concerned about the humanitarian situation, but the bigger questions about the future of the war remain.
Israel and Hamas agreed Monday to extend a temporary ceasefire under which dozens of Israeli hostages and Palestinian prisoners have been released from captivity.
The deal will continue the initial four-day humanitarian pause in fighting through this coming Thursday morning, with the potential for further extensions. The Qatar-mediated agreement is the longest break in hostilities since Hamas attacked Israel on October 7, killing over 1,200 people, and the Israel Defense Forces launched an air and ground assault that has devastated large parts of northern Gaza and killed more than 13,000 Palestinians, according to Gaza’s health ministry. The pause has allowed Palestinian civilians to safely access humanitarian goods like food, water, medical supplies, and other basic necessities amid the critical lack caused by the war.
Monday’s extension, then, is good news for anyone concerned about the humanitarian conditions and plight of prisoners and hostages. But the bigger questions about the war’s path and the future of Gaza remain as unclear as they were when this pause began.
One Israeli American citizen, a 4-year-old girl held hostage by Hamas in Gaza since October 7, was released into Israel Sunday as part of the 50 Israeli hostages released since Friday. In return, 150 Palestinian prisoners previously in Israeli jails — minors and women — have been released from detention back to their families. As Vox’s Abdallah Fayyad explained, Israel holds “thousands of Palestinians, including hundreds of children … on murky legal grounds.”
Hamas and Palestine Islamic Jihad are still holding well over 100 hostages in Gaza. Most are Israeli or dual citizens, but a number of other nationalities are included in that group, including laborers from countries like Thailand and the Philippines. More than a dozen of those foreigners were released over the weekend. Over the next two days, both sides will release more hostages and prisoners; while no announcements about the extension specified how many on either side, an Egyptian official indicated Monday that Hamas might release 20 hostages while Israel frees 60 prisoners.
At this pace of exchange, the ceasefire could continue for days, given the number of hostages still in Gaza. But there is no agreed-upon framework for a long-term deal, and Israeli Prime Minister Benjamin Netanyahu has insisted that the war will go on after the current ceasefire concludes. While the prisoner exchange could strengthen Hamas’s political position, further complicating Israel’s goal to eradicate the group, Israel appears undeterred.
The exchange and ceasefire agreements are complex and tenuous
For weeks, news outlets had been reporting about an impending ceasefire and prisoner exchange, but Qatari and US politicians began speaking openly about such a deal and their role in it only last week as an agreement finally appeared near. (Because Israel and Hamas don’t have direct diplomatic channels, Qatar and Egypt, which maintain communication channels with Hamas, were pivotal in securing the ceasefire and exchange.)
According to the Associated Press, discussions about a prisoner and hostage exchange emerged as soon as October 12, with the first proposal suggesting all women and children held in Gaza be released in exchange for freeing all Palestinian women held in Israeli prison. That proposal morphed into the current deal over weeks of negotiations brokered primarily by Qatar.
Israel’s parliament, the Knesset, voted in favor of the deal last Wednesday, with only the ultranationalist, far-right religious party of National Security Minister Itamar Ben Gvir voting against the proposal, according to the Times of Israel.
Though there will still be about 150 hostages in Gaza after this extension, that doesn’t mean Hamas can use them to prolong the ceasefire indefinitely; it can only continue another five days following the first extension. Hamas has also only agreed to release civilians; although the militant group that controls Gaza has taken some Israeli soldiers hostage, guaranteeing their release will require further negotiations, Raphael Cohen, director of the Rand Corporation’s Strategy and Doctrine Program, Rand Project Air Force, told Vox. “When the Israelis want to get the soldiers back, that will presumably be on different terms. It’s one thing if you’re trading Israeli civilians for a handful of, primarily, women and minors,” some of whom are alleged to have committed serious crimes, Cohen said. For Hamas to release the soldiers, they may ask for “people who Israel believes have actually committed murder and who are more senior Hamas operatives — that’s a very different political calculus.”
Though the ceasefire and prisoner exchange has gone through with minimal interruption, there was an hours-long delay in Saturday’s exchange when Hamas threatened to call off the deal, saying that Israel had not abided by its part of the agreement. However, the planned exchange went ahead, and as of Monday, all parties had agreed to a continuation of the pause.
Qatar has become a major player in global diplomacy and has been an important part of the current negotiations, in part because it’s one of two nations that maintains a direct relationship with Hamas. “It wants to be influential, diplomatically, and it does understand that, obviously, it’s not a regional superpower that can dictate things,” Bessma Momani, a political science professor at the University of Waterloo, told Vox’s Jen Kirby. That puts Qatar into a challenging balancing act:
Yet maintaining these delicate ties — and working those connections — is a very good way for Qatar to advance its interests, and its security. That approach comes with some risks, but, at least right now, they don’t outweigh the upsides for Qatar.
What happens next?
Hamas has, in the past, taken hostages as a negotiating tool to get Palestinian prisoners released from detention in Israel, and it has historically been effective — often asymmetrically so, as in the case of Gilad Shalit, an Israeli soldier who, after being held by Hamas for five years, was traded in 2011 for more than 1,000 Palestinian detainees.
The present exchange, though nowhere near that scale, still notches a political win for Hamas.
“It shows that not only is Hamas defying this notion that they’re going to be destroyed,” Khaled Elgindy, director of the Middle East Institute’s program on Palestine and Palestinian-Israeli affairs, told Vox. “Israel is still talking about eradicating Hamas, but they’re forcing Israel to negotiate with them and to release Palestinian prisoners, even in relatively small numbers.”
As Fayyad wrote, Israeli jails hold thousands of Palestinian prisoners, many of whom are held under administrative detention — meaning indefinitely and without being charged, for reasons as minor as a social media post or nonviolent protest — in the name of national security. Those who do get a trial are tried in military courts, where the conviction rate is around 99 percent:
Israel maintains that it detains people because of legitimate security concerns, such as potential participation in violent attacks. But while there is a thin veneer of due process … ‘Evidence has shown that [administrative detention] is a pretext to persecute and deprive people of their fundamental rights and freedoms because they challenge the Israeli military occupation,’ said [Elizabeth Rghebi, the Middle East and North Africa advocacy director at Amnesty International USA.]
Many Palestinians “have had loved ones who have been arrested, detained, tortured, [or had other] experiences in Israeli prisons,” Elgindy said. “The fact that Hamas can deliver that in the midst of the most ferocious bombing campaigns we have ever seen in the Gaza Strip is pretty remarkable.”
The ceasefire will also allow Hamas to rearm, to a degree, although substantial regrouping and rearmament would take longer than the brief period allowed under the ceasefire deal, Cohen said. Israel’s defense minister Yoav Gallant promised that the pause in hostilities would be just that, “then we will continue operating with full military power,” Reuters reported Friday.
“I can’t see the truce lasting more than a week,” Miri Eisin, managing director of the International Institute for Counter-Terrorism, told the Guardian. “The IDF wants to dismantle Hamas’s terror capability and military capability, and the only way to do that is through a systematic and careful ground operation.” However, the Biden administration signaled Monday that it hoped for a prolonged pause to release as many hostages as possible.
What Hamas is betting could change the dynamics of the conflict is that the longer the pause, the “more international pressure there will be to make this truce permanent,” Cohen told Vox. “I think it affects more the political calculus rather than the military calculus.”
The pause comes amid growing congressional calls for conditions on military aid to Israel, a concept President Joe Biden’s national security adviser Jake Sullivan didn’t explicitly dismiss during an interview on Sunday’s Meet the Press.
Despite that, there is no appetite within Israel to negotiate for a permanent ceasefire right now, Cohen said.
“At the end of the day, none of the structural dynamics here have actually changed — Hamas has been rooted out of more than half of the Gaza Strip, optimistically. It’s still in control of the southern half; many of the Hamas senior leaders … are still at large, which means that stopping now functionally just means that you’ve bought yourself a couple of years of peace, and you’re going to be in the same place again just in a matter of a couple of years.”