WEBVTT - Will Justices Toss Out Partisan Gerrymandered Districts?

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight an analysis into the most

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. Greg this was

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<v Speaker 1>what I would call a brazen jerrymander in North Carolina.

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<v Speaker 1>The redistricting committee included part as an advantage as one

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<v Speaker 1>of the criteria for the map. What was the focus

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<v Speaker 1>of the Justice's questions, Well, part of it was what

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<v Speaker 1>you just talked about, the fact that this was an

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<v Speaker 1>extreme jerrymander, both in terms of the intent explicit by

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<v Speaker 1>Republicans that they were trying to get as many GOP

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<v Speaker 1>seats as they could uh and the effect of it.

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<v Speaker 1>It basically worked. Republicans in the first election got ten

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<v Speaker 1>out of the thirteen seats. On the second election they

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<v Speaker 1>got at least nine. There's one district that's being revoted,

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<v Speaker 1>and that even though in both cases the vote overall

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<v Speaker 1>was pretty much fifty fifty. So that was a big

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<v Speaker 1>That was one focus of the case, and then the

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<v Speaker 1>second focus was how are we going to handle this

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<v Speaker 1>as courts if we say that this map is too

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<v Speaker 1>PARTI said, how are we going to draw a line

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<v Speaker 1>that will let us judge all these other maps we

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<v Speaker 1>may be called upon to rule on. So the Court

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<v Speaker 1>has been willing to restrict gerrymandering based on race, why

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<v Speaker 1>not so for those based on politics? That that's another

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<v Speaker 1>good question. The Court has in the past explicitly said

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<v Speaker 1>taking partisanship into account is okay, at least to some degree.

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<v Speaker 1>They said, that's a legitimate consideration. You also have to

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<v Speaker 1>look at other things like keeping counties together and you know,

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<v Speaker 1>not having lines that look too ridiculous with race. On

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<v Speaker 1>the other hand, there is this this notion that that

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<v Speaker 1>is something we really don't want to do unless we

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<v Speaker 1>have a strong reason for it. We don't like classifying

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<v Speaker 1>people according to their race, even when we're drawing congressional districts. Now,

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<v Speaker 1>the Court has allowed some consideration of race, and part

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<v Speaker 1>of the Voting Rights Act there the primary ideas to

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<v Speaker 1>make sure that racial minorities are able to elect somebody

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<v Speaker 1>of their choice, to prevent districts from being drawn so that, say,

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<v Speaker 1>a heavily black city is unable to elect a black

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<v Speaker 1>representative if that's what the people want. So race and

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<v Speaker 1>politics sort of start from different places in the minds

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<v Speaker 1>of the justices. What is the defense given to maps

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<v Speaker 1>that are clearly out of whack? Well, part of the

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<v Speaker 1>part of the defense is that this is just not

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<v Speaker 1>something courts are competent to resolve. And this was a

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<v Speaker 1>concern that Chief Justice Roberts Ray's last term when the

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<v Speaker 1>Court considered these issues, and the lawyer defending the North

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<v Speaker 1>Carolina map raised the issue again, which is that in

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<v Speaker 1>every case, the Supreme Court is going to be called

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<v Speaker 1>upon to decide whether Republicans win or Democrats win, and

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<v Speaker 1>that is something that could cast a cloud on the

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<v Speaker 1>Court's legitimacy as a nonpartisan actor. Now, the counter argument

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<v Speaker 1>to that, which lawyers a acking the map put forward

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<v Speaker 1>is that the Court, you know, will look like it

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<v Speaker 1>is making a political decision if it does not get involved.

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<v Speaker 1>So it may be that the Court can't really win here.

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<v Speaker 1>The question will be whether they think there's any way

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<v Speaker 1>they can separate out extreme partisan jurymandering from cases where

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<v Speaker 1>politics are considered, but but not too much. Do any

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<v Speaker 1>of the justices appear to you to have key votes? Yes,

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<v Speaker 1>so the key votes are almost certainly coming from John Roberts,

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<v Speaker 1>which is something we're getting used to, and the new

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<v Speaker 1>Justice Brett Kavanaugh on both of them asked questions of

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<v Speaker 1>both sides, and by the end of the two arguments

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<v Speaker 1>today the Court also heard arguments in the Maryland case,

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<v Speaker 1>it wasn't obvious which way they were going to come out,

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<v Speaker 1>especially Kavanaugh. He did essay during the North Carolina case

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<v Speaker 1>that the notion of proportional representation, this idea that you know,

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<v Speaker 1>if a state of split fifty fifty, each party should

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<v Speaker 1>get roughly the representatives, that that was at least something

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<v Speaker 1>that was pretty easy to apply judicially manageable. But he

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<v Speaker 1>also pointed to Supreme Court precedents and key opinions by

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<v Speaker 1>swing justices like Sandrada O'Connor and Anthony Kennedy that in

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<v Speaker 1>the past have been clear that the Court didn't want

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<v Speaker 1>to try to mandate proportional representation, that that is not

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<v Speaker 1>something that's in the Constitution. So based on the argument,

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<v Speaker 1>Justice Kavanaugh's vote is up in the air at this point.

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<v Speaker 1>So last time the Court sort of skipped the main

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<v Speaker 1>issue and went to the details. Could that happen again?

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<v Speaker 1>It could, but it seems harder to the last time around.

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<v Speaker 1>In this case involving Wisconsin, the Court said that the

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<v Speaker 1>voters suing there didn't have standing. They hadn't shown or

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<v Speaker 1>at least they hadn't shown that they have standing. They

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<v Speaker 1>hadn't shown that they were injured in a way that

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<v Speaker 1>would let them sue, And the court strongly suggested that

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<v Speaker 1>any suits should happen not on a statewide basis, but

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<v Speaker 1>on a district by district basis. A voter saying, hey,

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<v Speaker 1>my particular vote didn't count the way it should because

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<v Speaker 1>the Republican their Democrats who were in charge of joining

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<v Speaker 1>the maps, discriminated against me because I don't re with them.

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<v Speaker 1>The cases before the Court today did not seem like

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<v Speaker 1>they had that same sort of problem. In North Carolina's case,

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<v Speaker 1>for example, they have voters from every congressional district who

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<v Speaker 1>who are suing, and they are generally saying, my district,

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<v Speaker 1>not the state wide map, but my district was drawn

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<v Speaker 1>in an unconstitutional way. And in general, there wasn't a

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<v Speaker 1>whole lot of discussion about that standing issue in the court.

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<v Speaker 1>So it seems like the Court is going to get

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<v Speaker 1>to the merits and beside the bigger questions about whether

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<v Speaker 1>maps like these can ever be challenged, So then what

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<v Speaker 1>are the implications here? Will have wide effects as new

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<v Speaker 1>maps are drawn, certainly will have wide effects, both potentially

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<v Speaker 1>for some maps that are in place right now, but

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<v Speaker 1>also for the next round of map drawing, which will

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<v Speaker 1>happen after the is And you know, these are really

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<v Speaker 1>fundamental questions about, you know, how how our democracy is

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<v Speaker 1>supposed to work. I mean, the people who criticized jerrymandering

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<v Speaker 1>say we end up with uncompetitive elections that don't reflect

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<v Speaker 1>the will of the vote. And people on the other

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<v Speaker 1>side say that the judiciary really needs to stay out

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<v Speaker 1>of something that is so deeply political, and that the

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<v Speaker 1>system can correct itself. Ultimately, the voters, if they're fed

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<v Speaker 1>up enough with gerrymandering, can elect different people, maybe not

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<v Speaker 1>in their particular district, at least they can elect a

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<v Speaker 1>different governor in a state, or perhaps they can put

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<v Speaker 1>in place a commission to draw the lines so that

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<v Speaker 1>there are other tools, is the argument, and the Court

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<v Speaker 1>is going to have to decide which one of those

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<v Speaker 1>two viewpoints is correct. I noticed in your story that

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<v Speaker 1>Justice Kavanaugh asked questions about independent commissions. Could the Court

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<v Speaker 1>simply say independent commissions are the way to go. It could,

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<v Speaker 1>and that would be really interesting. A few years ago,

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<v Speaker 1>the Court upheld independent commissions, but it did it on

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<v Speaker 1>a five to four vote, and it had seemed like

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<v Speaker 1>there was a possibility that this more conservative court might

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<v Speaker 1>reverse that decision at some point, overturn it. But both

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<v Speaker 1>Kavanaugh and especially just As Gorset's use those commissions as

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<v Speaker 1>one reason why they or at least anything that the

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<v Speaker 1>Court shouldn't get involved. If that's part of the rationale here,

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<v Speaker 1>it's really hard to see how the Court could later

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<v Speaker 1>turn around and say no, those commissions are unconstitutional as well.

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<v Speaker 1>Thanks Greg, I know you have more interesting arguments coming up.

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<v Speaker 1>That's Greg Star, Bloomberg New Supreme Court reporter. Thanks for

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<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

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<v Speaker 1>listen to the show on Apple Podcasts, SoundCloud, and on

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<v Speaker 1>Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg. Yeah,