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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. Mississippi has the

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Speaker 1: highest percentage of African Americans of any state in the country,

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Speaker 1: but it hasn't elected a black official statewide in more

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Speaker 1: than one thirty years. Jennifer Riley Collins, who wants to

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Speaker 1: become Mississippi's first black Attorney General, says the reason is

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Speaker 1: the state's constitution. She's suing to change that, and she's

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Speaker 1: getting help from the country's first black attorney General, Eric Holder,

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Speaker 1: joining me as a leading expert on election law, Rick Pildas,

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Speaker 1: a professor at n y U Law School. Rick tell

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Speaker 1: us about the provision in Mississippi state Constitution the suit

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Speaker 1: is directed at, Yes, Well, this is a provision that

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Speaker 1: requires someone, if they are going to be elected governor,

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Speaker 1: not just to win a majority of the votes statewide,

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Speaker 1: but also to win a majority of votes in a

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Speaker 1: substantial majority of the counties in the states or the

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Speaker 1: districts in the state. So in other words, you have

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Speaker 1: to win, um, not just stay wide, but you have

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Speaker 1: to be able to win in lots of the different

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Speaker 1: counties or districts in the state. UM. And the concern

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Speaker 1: is that this means that an African American candidate has

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Speaker 1: to win not just statewide, but in a lot of

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Speaker 1: places that are overwhelmingly white, and that that makes it

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Speaker 1: far more difficult for an African American candidate to win statewide.

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Speaker 1: How would the plaintiffs prove their case with statistics? And

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Speaker 1: isn't that an uphill battle. No, they wouldn't have to

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Speaker 1: prove a case like this with statistics, because this is

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Speaker 1: just the formal structure of the election process. And thee

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Speaker 1: is whether this structure is consistent with the Constitution and

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Speaker 1: with the Voting Rights Act UM. And here we also

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Speaker 1: have one of these very rare situations in which you

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Speaker 1: have a an election provision or structure that goes back

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Speaker 1: to one of these explicitly racist constitutions that were formed

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Speaker 1: in many places in the South in the eighteen nineties

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Speaker 1: and the early part of the twentieth century. Uh So,

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Speaker 1: the argument is that this structure, this very unusual structure,

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Speaker 1: was created in the nineties specifically for the purpose when

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Speaker 1: African Americans were able to vote in the South of

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Speaker 1: making it very very difficult for an African African American

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Speaker 1: to get elected to a statewide office. Uh So, the

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Speaker 1: combination of whether this is a discriminatory purpose behind this

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Speaker 1: structure um and whether it violates either the Constitution of

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Speaker 1: the Voting Rights Act as a result is the core

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Speaker 1: of the case. And and statistical evidence will not be

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Speaker 1: particularly critical in a case like this. If this ends

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Speaker 1: up going to the Supreme Court, we have a court

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Speaker 1: that has cut back on the Voting Rights Act and

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Speaker 1: recently ruled that parties in Gerryman during is not against

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Speaker 1: the Constitution. What do you suspect the court would do

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Speaker 1: with this? Well, as I understand this case, this this

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Speaker 1: is as I say, this is one of these very

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Speaker 1: old uh examples that are not as common anymore, of

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Speaker 1: of a provision that traces right back to an explicitly

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Speaker 1: racist constitution that was adopted in in Mississippi. The Supreme

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Speaker 1: Court has faced a few provisions like that from other

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Speaker 1: state constitutions from that era, including from Alabama, and it

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Speaker 1: has struck those provisions down as unconstitutional. Uh So, as

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Speaker 1: I understand this case. I think Mississippi has a tough

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Speaker 1: road to ho here in defending uh this provision uh

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Speaker 1: and UH and I think the plaintiffs are you know,

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Speaker 1: probably have a pretty strong case here. The response from

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Speaker 1: Mississippi was that this is not about race, but about

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Speaker 1: partisan politics. Does that get them anywhere? Well, if that

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Speaker 1: were accurate, if this were just about partisan politics, then

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Speaker 1: that probably would be a defensible answer. Um. You know,

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Speaker 1: whether whether that's actually a plausible explanation for why this

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Speaker 1: structure came into being um and whether it's a constitutional

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Speaker 1: today is still an open question. And and this provision also,

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Speaker 1: you know, looks like it violates a kind of one vote,

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Speaker 1: one person type doctrine, which uh, you can't defend by

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Speaker 1: saying you're violating that doctrine for partisan political purposes. Because

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Speaker 1: what this provision says is it's not enough to win

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Speaker 1: a majority of the votes statewide. You also have to

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Speaker 1: win in a variety of individual counties or districts. Uh.

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Speaker 1: And so this provision may violate the one vote, one

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Speaker 1: person provisions of constitutional doctrine. UM. And there's no partisan

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Speaker 1: defense to that. I want to broaden the conversation a

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Speaker 1: little bit because, according to the election law Journal, Mississippi

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Speaker 1: makes it harder to vote than any other state. Let's

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Speaker 1: talk a little bit about the national fight over voter

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Speaker 1: You know, registration laws and voter ID laws in most states.

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Speaker 1: Do you see growing problems making the vote harder? Well,

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Speaker 1: I think the issue that's being picked out in Mississippi

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Speaker 1: in particular is the Fellon disenfranchisement law and the ongoing

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Speaker 1: effects of Fellion disenfranchisement laws in Mississippi. UM. As you know,

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Speaker 1: those laws have gotten a lot of attention in recent years. UM.

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Speaker 1: And while the courts have not struck those laws down, UM,

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Speaker 1: they have been changed by vote are initiative in a

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Speaker 1: place like Florida, and by governor's actions in other states,

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Speaker 1: and by some state legislation. UM. And I think that's

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Speaker 1: the main thing that's being referred to in Mississippi. Beyond

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Speaker 1: the particular law being UM challenged here, there's certainly there's

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Speaker 1: a lot more activity about regulating access to the political process. UM.

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Speaker 1: The courts have struck down some voter ID laws, they've

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Speaker 1: upheld other voter ID laws. It depends a lot of

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Speaker 1: the specifics of how a particular states voter ID law works.

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Speaker 1: How many states allow felons to vote former felons. So

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Speaker 1: there are just a very limited number of states who

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Speaker 1: disenfranchise former falons for life. Uh. Many states disenfranchised people

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Speaker 1: while they are serving their sentence um. And the real

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Speaker 1: question is once people have fully served their sentence uh

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Speaker 1: and fully paid their dues, are they then eligible to vote?

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Speaker 1: Do they have to go through some very complex procedure

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Speaker 1: to get their voting rights back or are they automatically

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Speaker 1: able to vote at that point? Uh? And I think

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Speaker 1: that's that's really where the largest issues are, these permanent

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Speaker 1: bands for life for former felons who have served their time,

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Speaker 1: or states that make it incredibly difficult you have to

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Speaker 1: jump through lots of procedural hoops to restore your voting rights.

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Speaker 1: Thanks so much for joining us today. That's Rick Pildas.

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Speaker 1: He's a professor at n y U Law School and

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Speaker 1: a leading expert on election law. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I'm June Brasso. This is Bloomberg