Speaker 1: Three weeks ago, a federal court in Texas invalidated to
Speaker 1: Republican drawn congressional districts, saying they were unconstitutionally designed to
Speaker 1: dilute the cloud of minority voters. But this week the U. S.
Speaker 1: Supreme Court intervened. Splitting along ideological lines, the justices voted
Speaker 1: five to four to put the lower court ruling on
Speaker 1: hold and in all likelihood ensure that the disputed districts
Speaker 1: will be used for the elections. The High Court issued
Speaker 1: a similar order in a separate case over Texas state
Speaker 1: legislative districts. The court didn't provide any explanation, but the
Speaker 1: order is nonetheless alarm some voting rights advocates, underscoring the
Speaker 1: power of the Supreme courts conservative majority as we head
Speaker 1: toward next year's mid term elections. With us to talk
Speaker 1: about all this is Richard Berfalt. He's a professor at
Speaker 1: Columbia Law School, and Nate personally, who teaches at Stanford
Speaker 1: Law School. Both are election law experts and regular guests
Speaker 1: here on Bloomberg Law. Um, Nate, this is really complicated litigation.
Speaker 1: It's been up and down the court system. UM, let's
Speaker 1: just try to start simply if we could with the
Speaker 1: the issue with the congressional districts, can you tell me
Speaker 1: what it was that the lower court found that was
Speaker 1: wrong with the way those districts were put together. So
Speaker 1: in both of these cases, the question is whether the
Speaker 1: state has either used race successively in the drawing of
Speaker 1: these lines or diluted the votes of African Americans and Latinos,
Speaker 1: either intentionally or in effect with Section two of the
Speaker 1: Voting Rights Act. And so here in the congressional districts,
Speaker 1: which have by implication, these districts and every election that
Speaker 1: has been run under them since two thousands have been
Speaker 1: unconstitutional because race was you know, that they were dilutive
Speaker 1: or intentionally discriminatory in the way that they constructed several
Speaker 1: of these districts. And so the district court three judge
Speaker 1: court wanted them to be redrawn. That's been stayed, and
Speaker 1: as you said, it's we don't know whether than they'd
Speaker 1: have have a chance to redraw them before the two
Speaker 1: thousand and eighteen elections. Rich tell us what the various
Speaker 1: arguments the state made to the Supreme Court. Well, the
Speaker 1: most recent thing that the state was able to argue
Speaker 1: with the unsuccessfully in the lower Court. Excuse me, was that,
Speaker 1: um whatever, that these districts had been through the litigation
Speaker 1: nell several times, that the most recent round because they
Speaker 1: were adopted the most recent round reflected a certain interim
Speaker 1: plans that were adopted by a court, and the legislature
Speaker 1: essentially adopted the court's interim plans, So that would have
Speaker 1: purged the taint that may have been put in from
Speaker 1: the earlier plans which were found to be discriminatory. In addition,
Speaker 1: I think the the state argues to the Supreme Court
Speaker 1: that frankly they should be given time to uh. Any
Speaker 1: interim remedies should be blocked UH, and that the that
Speaker 1: the common plans should continue to be used pending a
Speaker 1: full of discussion by the court. And what's the counter
Speaker 1: to that argument by the state. So, if indeed these
Speaker 1: disputed districts are basically just the same districts that UH
Speaker 1: court had ordered as as an interim remedy a few
Speaker 1: years ago, how could they not be acceptable now? Well,
Speaker 1: this is a familiar argument and one that's actually playing
Speaker 1: out with the Texas motor ide law as well. UH,
Speaker 1: Because there was an intim sort of plan that the
Speaker 1: court had accepted and then Nevertheless, they later found that
Speaker 1: it was unconstitutional. And with these interim emergency remedies, the
Speaker 1: argument is, well, uh, this is just what the court
Speaker 1: adopts to have something in place for an election. Uh.
Speaker 1: It is not saying that it's definitely legal or constitutional
Speaker 1: that requires full litigation. But you you know the thing
Speaker 1: about elections is you've got to have districts in place
Speaker 1: in order to know who can run from where. And
Speaker 1: so these were sort of emergency procedures to put in place,
Speaker 1: but they hadn't sort of fully aired all the constitutional questions.
Speaker 1: So rich the courts brief Tuesday order just just let
Speaker 1: us know who is on which side of letting this
Speaker 1: go forward. Do we have any reason to know how
Speaker 1: the court desired or why they desired the way they did? Well,
Speaker 1: the courts career said nothing. It just literally a stay. Uh.
Speaker 1: And the justices who would have denied this day just
Speaker 1: said they would have denied to stay. So there's no
Speaker 1: substantive opinion either for the majority or for I'll call
Speaker 1: them a descent although it's not technically a descent um.
Speaker 1: So we don't really know what the reasoning is. Um.
Speaker 1: If we don't know whether I mean, there's There's really
Speaker 1: two big possibilities. One is that they disagree with the
Speaker 1: lower courts reading of the evidence of the on on
Speaker 1: the facts of intentional or official discrimination or the discriminatory impact.
Speaker 1: That's a little hard because they court really has not
Speaker 1: had much time to assess the evidence. Uh. The other
Speaker 1: possibility is that it reflects the philosophy that's the jet
Speaker 1: that uh, they would rather have the existing plans remain
Speaker 1: in place, uh, pending full review. That because the Court
Speaker 1: has traditionally allowed districting to be a matter haven up
Speaker 1: by legislatures. Rather than having the lower court begin a
Speaker 1: redistricting process, they would want to whole continue to use
Speaker 1: the currently in valid maps, keep them in place while
Speaker 1: the appeals process works its way through. Nate, let me
Speaker 1: ask you the same question, to what extent can we
Speaker 1: take this five to four vote as a reflection that
Speaker 1: the of what the Supreme Court thinks about the merits
Speaker 1: of the lower court ruling, Well, it means that five
Speaker 1: of them at least are somewhat unsure as to whether
Speaker 1: it should be codified immediately. I mean, that's that's all
Speaker 1: we can sort of say. But I agree with Richard's
Speaker 1: basic thing. But let's just abstract it out for a second,
Speaker 1: which is that this these cases dealing with race and
Speaker 1: redistricting are extremely naughty. In fact intensive We've had cases
Speaker 1: of the Supreme Court and last few years from Alabama,
Speaker 1: North Carolina, and Virginia, all raising very similar issues to
Speaker 1: what we see here. Um. And what what what you
Speaker 1: see is that the jurisdictions field, they're put in a
Speaker 1: box where they have to use race in order to
Speaker 1: comply with the Voting Rights Act. But if they use
Speaker 1: race too much, then it's going to violate the Constitution.
Speaker 1: And in the background of all of this is the
Speaker 1: part of an interest that are are the part of
Speaker 1: an interest that are at stake because um, most of
Speaker 1: these districts and these dilution claims are happening in the
Speaker 1: context of partisan gerrymanders. We're talking about the Supreme Court
Speaker 1: action this week reinstating to Republican drawing congressional districts that
Speaker 1: had been ordered redrawn by a lower court. Our guests
Speaker 1: are Nate Personally of Stanford Law School, in Richard Brafault
Speaker 1: of Columbia Law School, rich When this when this order
Speaker 1: came out from the Supreme Court, are these orders two
Speaker 1: of them in two separate cases. Um. I sensed a
Speaker 1: lot of uh worrying on the left about the implications
Speaker 1: of this, and it sort of went along the lines
Speaker 1: of if you thought we had Anthony Kennedy, who's kind
Speaker 1: of the swing vote on the court and these issues,
Speaker 1: if you thought we thought we had him on voting
Speaker 1: rights issues, UM, this is evidence that we're mistaken. Do
Speaker 1: you think that concern is warranted in light of what
Speaker 1: the court did this week? Well, that's hard to answer.
Speaker 1: These are stays of a lower court decisions. It's not
Speaker 1: happy news. I mean short, he did go along with
Speaker 1: the stays, but I think the rulings on stays like
Speaker 1: this or just not quite enough, uh to hang your
Speaker 1: hat on or to be to be fully depressed. On
Speaker 1: the other hand, it is more negative than a positive
Speaker 1: sign that it's the sign of anything. Nate, I want
Speaker 1: to go back forward to UH for a moment to
Speaker 1: what the state was arguing that. You know, it was
Speaker 1: such a short time for them to go redraw the maps.
Speaker 1: You've drawn legislative maps and been involved in that. Would
Speaker 1: it have been too difficult for them to redraw these
Speaker 1: maps before the midterm elections? Know they can draw them
Speaker 1: right now. It would take really a day to do it.
Speaker 1: I mean the actual process of drawing it to remedy
Speaker 1: these constitutional problems, because it's not the whole plan, it's
Speaker 1: just a few districts. And then frankly, there have always
Speaker 1: already been proposed remedial maps. It would just be up
Speaker 1: to the court to decide on them. Right now. I mean,
Speaker 1: what's happened, and this is what always happens to rediscing litigation,
Speaker 1: is that the state is trying to just have more
Speaker 1: and more process so it gets closer and closer to
Speaker 1: the two thousand eighteen elections, so that then it will
Speaker 1: be impossible to redraw the maps. And so the consequence
Speaker 1: of this is that the primaries I believe are for
Speaker 1: the Congress Congression elections in Texas are March two, eighteen.
Speaker 1: If the Supreme Court order is full hearing on this UH,
Speaker 1: they will probably consider whether to grant hearing UH in
Speaker 1: November or how to resolve the case, and then UH
Speaker 1: a decision is likely to come after those primary elections,
Speaker 1: and so then it may very well be too late.
Speaker 1: I mean, you could redraw the elections and rerun primary actions.
Speaker 1: That's happened before, but more likely they'll let them go
Speaker 1: into place for yet one more election. Rich. One of
Speaker 1: the arguments the voting rights side made in this case
Speaker 1: was this lower court order is not a final one.
Speaker 1: It's not a final judgment until they order a new
Speaker 1: new map. Uh. In light of that argument, is it's
Speaker 1: surprising to you that the Supreme Court chose to jump
Speaker 1: in now as opposed to waiting again, It's it's hard
Speaker 1: to say. I mean the court there is a feeling,
Speaker 1: as Nate indicates, by jumping in now, they've effectively barred
Speaker 1: any remedy off if if the Court will conclude that
Speaker 1: these plans were either run, consumual and violent of voting
Speaker 1: right sec, they've effectively barred any remedy for another couple
Speaker 1: of years. So you do wonder what ex On the
Speaker 1: one hand, there was the argument for not for allowing
Speaker 1: a full review before forcing a repidy. But you do
Speaker 1: wonder whether to what extent the Court may have at
Speaker 1: least tendatively preach to the ultimate decision. And Nate, as
Speaker 1: far as the question of whether this is a bad
Speaker 1: sign for voting discrimination cases in the future, do you
Speaker 1: see it, Do you see it as a bad sign
Speaker 1: or any sign? Well, I think sort of the area
Speaker 1: of race and redistricting right now is sort of characterized
Speaker 1: by chaos, which is that the rules are in flux
Speaker 1: and jurisdictions don't have clear direction and they're afraid they're
Speaker 1: going to get sued. No matter what. I think, it
Speaker 1: is possible that the Court here, by just preserving the
Speaker 1: status quo, is saying, look, we want to uh deal
Speaker 1: with the array of cases that are coming before us.
Speaker 1: Most significant one is the Wisconsin partisan jurymandering case that
Speaker 1: they're gonna hear this year. UH. And if they have
Speaker 1: a kind of pro voting rights opinion there, that will
Speaker 1: throw not only this case but all cases dealing with
Speaker 1: partisanship and redistricting the race into flux, and so that
Speaker 1: then the courts maybe redrawing a lot of planned rich
Speaker 1: One issue that is lurking is in various cases. I'm
Speaker 1: actually not sure if it's in this one, but the
Speaker 1: the the notion of putting Texas back under a preclearance
Speaker 1: regime where they would have to get approval from the
Speaker 1: federal government, either the Justice Department or a court UH
Speaker 1: to change their voting rules. Um, what's the status of
Speaker 1: that effort and does does what happened this week have
Speaker 1: any effect on it. Well, it certainly does, so as
Speaker 1: you as you, as your question indicates. As we all know,
Speaker 1: there was a time when Texas with subject to preclearancidus
Speaker 1: to say, any changes in its voting practices or procedures,
Speaker 1: including its mass, would require Justice Department approval before they
Speaker 1: could take effect. The Supreme Court decision in Shelby County
Speaker 1: eliminated that requirement. But there is a provision of the
Speaker 1: Voting Right sex hasn't been used that much. It has
Speaker 1: been used sometimes, and not a lot, called the so
Speaker 1: called bail in provision, that says that a court could
Speaker 1: decide that if a jurisdiction commits serious and repeated Voting
Speaker 1: Rights Act violations, the court would create a preclearance requirement
Speaker 1: for future legal changes in that jurisdiction or some were
Speaker 1: all potentially a voting right voting a change in that
Speaker 1: jurisdiction going forward. Texas has now had to at least
Speaker 1: two different sets of litigations where there has been, these
Speaker 1: involving the redistricting maps and also another one involving their
Speaker 1: voter I D Law, in which courts have found intentional discrimination.
Speaker 1: So rich, I'm afraid we're gonna have to We're gonna
Speaker 1: have to leave it there. I want to thank Richard
Speaker 1: Brafault and Nate personally for talking to us about the
Speaker 1: Supreme Courts action this week on voting districts in Texas