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Speaker 1: Jerrymandering is baked into the political process, as legislators remap

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Speaker 1: the boundaries of their voting districts every ten years, usually

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Speaker 1: to the benefit of the party in control. Republicans have

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Speaker 1: more than doubled their control of state legislatures since and

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Speaker 1: Democrats are fighting back in court against the redistricting that

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Speaker 1: Vice President Joe Biden said stacked the deck against the Democrats.

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Speaker 1: They ended up with a lot of districts where the uh,

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Speaker 1: the Lauren Almighty could not defeat a Republican. They put

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Speaker 1: so many Republicans in it didn't matter. There's often a

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Speaker 1: strong connection between race and political party. Further complicating the process,

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Speaker 1: The Voting Rights Act requires states with large minority populations

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Speaker 1: to consider race when drawing district lines. So when does

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Speaker 1: the use of race in redistricting go too far? Today?

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Speaker 1: The Supreme Court considered this issue and heard arguments in

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Speaker 1: two racial jerremandering cases, one in Virginia, the other in

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Speaker 1: North Carolina. Our guests, our election law experts, Nate Personally,

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Speaker 1: professor at Stanford University Law School, and Josh Douglas, Professor

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Speaker 1: at the University of Kansas Law School. Nate, will you

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Speaker 1: explain the competing considerations the legislators are supposed to take

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Speaker 1: into account with regard to race when redistricting. Well, legislators

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Speaker 1: are under sort of two legal obligations under federal law.

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Speaker 1: One is from the Voting Rights Act, the parts that

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Speaker 1: still remain, which says that you must make sure that

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Speaker 1: minorities have an equal opportunity to elect their can'ts of choice,

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Speaker 1: and that often means that in areas of high minority concentration,

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Speaker 1: you have to draw majority African American, majority Latino districts.

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Speaker 1: At the same time, the Constitution prevents states from using

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Speaker 1: race too much. You can't use race as the predominant

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Speaker 1: factor in the construction of a district. And so these

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Speaker 1: cases are in part about how you, uh, sort of

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Speaker 1: square that circle. How do you draw districts that comply

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Speaker 1: with the Voting Rights Act but don't run a foul

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Speaker 1: of the Constitution. Josh, the dynamic in these cases is

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Speaker 1: very different than it was twenty or thirty years ago.

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Speaker 1: It used to be that what you would see would

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Speaker 1: be a minority group or or um uh minority voters saying, uh,

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Speaker 1: you're not complying with that first thing that Nate was

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Speaker 1: talking about, the Voting Rights Act and not giving us

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Speaker 1: an opportunity to elect representatives of our choice. Now it

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Speaker 1: seems to be that the districts are they're saying, hey,

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Speaker 1: these districts have too many racial minorities in them, more

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Speaker 1: than we actually need. Can you explain why that that

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Speaker 1: evolution has taken place? Yeah, This is known as a

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Speaker 1: phenomenon of called cracking and packing uh. And the basic

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Speaker 1: purity is that and particularly what you mentioned putting almost

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Speaker 1: too many minorities in one district. There he goes that

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Speaker 1: if you put as many minorities as possible in one district,

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Speaker 1: they'll have a supermajority, which means they will not have

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Speaker 1: any influence in any of the surrounding districts. And so

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Speaker 1: you've packed them into one uh and made it easy,

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Speaker 1: extremely easy for them to win that one district, but

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Speaker 1: very difficult and impossible for them to them to have

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Speaker 1: an influence in the surrounding areas. And that's been one

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Speaker 1: tactic that some states have used, and some of course

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Speaker 1: have said that that's unlawful. Nate North Carolina's twelfth district,

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Speaker 1: which was an issue here, has been described as the

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Speaker 1: nation's most oddly shaped and the first and the twelve

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Speaker 1: districts have been the subject of Supreme Court cases five

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Speaker 1: times over the past thirty years. Is that a telling

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Speaker 1: point that it's a very oddly shaped district and that

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Speaker 1: they seem to be having a lot of problems. Well,

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Speaker 1: I have to say North Carolina has done amazing work

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Speaker 1: for the country and clarifying redistricting law and muddying at times,

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Speaker 1: so they probably they've done a public service for for

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Speaker 1: law professors like me and Josh. But I'll say this,

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Speaker 1: which is that what North Carolina shows, and this sort

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Speaker 1: of famous district twelve has shown, is that there are

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Speaker 1: very difficult decisions that need to be made in order

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Speaker 1: to ensure in areas of high minority concentration that minorities

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Speaker 1: are able to elect their cancer choice, but that the

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Speaker 1: rules of color blindness that ordinarily governed UH government activity

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Speaker 1: UH should not be broken. And so you end up

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Speaker 1: with this problem, especially in a context where one party

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Speaker 1: is trying to jerrymander the other um that they end

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Speaker 1: up using race as a proxy for politics. And so

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Speaker 1: these constitutional and voting rights at considerations come in as

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Speaker 1: ways to try to destabilize the gerrymander and say that

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Speaker 1: you have you know, treated African Americans in a discriminatory

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Speaker 1: way by over concentrating them. As just said, Josh, that

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Speaker 1: was basically the argument that North Carolina made today in court,

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Speaker 1: which is that for that District twelve, it was politics

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Speaker 1: that explains everything. What's the counter to that argument? And

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Speaker 1: in particular, Uh, some of the just has pressed the

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Speaker 1: people challenging the district, how come you didn't present us

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Speaker 1: an alternative map that we could have used to to

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Speaker 1: show how how they could have achieved the same political

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Speaker 1: and without using race quite so much. Well, I think

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Speaker 1: underlying your question is the fact that the court is

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Speaker 1: not policing partisanship in jerrymandering at all. Currently, the Court

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Speaker 1: has said that we're not going to touch a case

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Speaker 1: where partisanship or politics placed too much for a role

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Speaker 1: in the line drawing process. And so in many ways,

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Speaker 1: some of these challenges are kind of a end run

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Speaker 1: around trying to challenge a partisan gerrymander through another form, uh,

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Speaker 1: finding another way that the map is unlawful because you

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Speaker 1: can't challenge the partisanship of it. So that question that

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Speaker 1: the dust is asked about, show us an alternative map

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Speaker 1: that achieved your political goal goals, just as well, but

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Speaker 1: without having this race based effect is important part of

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Speaker 1: the proof that a challenger would have to bring that

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Speaker 1: the state would have to use to defend the law um.

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Speaker 1: And so there's this underlying notion of politics that the

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Speaker 1: Court is basically saying we're not touching. And that's I

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Speaker 1: think one reason why you get these assistant challenges to

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Speaker 1: maps in North Carolina multiple times, because what is really

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Speaker 1: going on is I think it's probably a little bit

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Speaker 1: of both. But yet the challengers can't use partisanship, at

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Speaker 1: least currently, until the Court recognizes a standard that can't use,

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Speaker 1: you can't challenge a math because of that partisanship, Nate,

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Speaker 1: is the are the justices allowed or is it before them?

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Speaker 1: The political climate in North Carolina before the election, in

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Speaker 1: other words, there was an attempt to cut back early

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Speaker 1: voting and other things that would specifically disadvantage African Americans,

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Speaker 1: and so a racial motivation was shown to some. So

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Speaker 1: is that part of it? I think it is part

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Speaker 1: of it. I think, you know, the question that a

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Speaker 1: lot of them will be asking is whether this gerrymander

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Speaker 1: was part of a larger project to discriminate against African

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Speaker 1: American voters. Now, the constitutional question is simply whether these

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Speaker 1: particular districts were drawn predominantly on the basis of race.

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Speaker 1: And so in the normal parlance of redistricting, it's not

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Speaker 1: that these planeiffs are saying that their vote was diluted,

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Speaker 1: that they should have gotten a third district instead of

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Speaker 1: just having two districts. They're saying the mere fact that

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Speaker 1: you treated all of us as an undifferentiated group African Americans,

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Speaker 1: it is that you have then discriminated against us under

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Speaker 1: the constitution. Josh, that gets to one of the core

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Speaker 1: questions in the case. Should that be enough? Should it

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Speaker 1: be enough that they just show UH that that race

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Speaker 1: was used, or should an effect on the ability to

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Speaker 1: UH to cast a vote that means something be part

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Speaker 1: of the analysis. Well, I think that's what exactly what

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Speaker 1: the justice are are trying to grapple with here, because

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Speaker 1: the prior case law simply says it needs to or

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Speaker 1: you can't have a predominant overriding interest be based on race.

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Speaker 1: And now we're trying to define what that means. Does

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Speaker 1: that mean that other normal redistrict criteria, like having compact districts,

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Speaker 1: like trying to achieve population equality among districts, UH, if

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Speaker 1: those are the considerations in a difference in addition to race,

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Speaker 1: is race now a predominant factor? Um? And that's one

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Speaker 1: of the arguments that the state is making here. I

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Speaker 1: think in the Virginia case in particular, the state is saying, look, well,

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Speaker 1: we use these other criteria and addition, and therefore race

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Speaker 1: can't be the predominant factor. Um. You know, signing Figuring

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Speaker 1: out whether race was a predominant factor an important factor

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Speaker 1: in making a decision is really difficult without some sort

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Speaker 1: of smoking gun. Where do you see the legislatures saying,

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Speaker 1: you know, let's move the lines this way or that

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Speaker 1: way for racial reasons. We've been talking about Supreme Court

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Speaker 1: oral arguments today and to racial gerrymanderin cases with election

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Speaker 1: law experts in Neate personally, professor at stand For University

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Speaker 1: Law School, and just Josh Douglas, professor at the University

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Speaker 1: of Kentucky Law School, and our own Greg Store was

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Speaker 1: in the audience today listening to the arguments. Greg, was

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Speaker 1: there any indication from the justices of which way they

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Speaker 1: were leaning. Well, there's a sense, June, it felt like

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Speaker 1: we were going for a fairly narrow ruling. There is

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Speaker 1: a precedent in this area from about a year and

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Speaker 1: a half ago a case involving Alabama, where the Court

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Speaker 1: revived a suit challenging Republican drawing lines there on similar lines.

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Speaker 1: That was a five four decision, with Justice Kennedy joining

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Speaker 1: the liberals. It seemed like Justice Kennedy, at least in

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Speaker 1: the Virginia case, was inclined to say, at a minimum,

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Speaker 1: I want the lower court to take another look at

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Speaker 1: this using a tougher standard. The North Carolina case was

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Speaker 1: a little tougher to call because there's a a lurking

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Speaker 1: question there about a a state court case challenging the

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Speaker 1: same issue, and justices were concerned about how that case

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Speaker 1: might affect this one, And in fact, one of the

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Speaker 1: key questions in that area came from Justice Ginsburg. So, uh,

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Speaker 1: you know, that case is a little harder to call.

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Speaker 1: Let me turn back to Nate. Nate, you're gonna say

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Speaker 1: something before we we had to cut away go ahead

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Speaker 1: with what you were going to say. Please, Well, this

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Speaker 1: actually doubtails with what you just said, which there is

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Speaker 1: a difference between these cases in that there is a

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Speaker 1: concession with respect to Virginia that they drew districts at

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Speaker 1: African American. And so if the court wants to just

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Speaker 1: say that mechanical percentages are not what's required under the

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Speaker 1: Voting Rights Act and that doing so therefore violates the Constitution,

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Speaker 1: they have a way out with the Virginia case and

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Speaker 1: just say that you can't, you know, just sort of

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Speaker 1: coarsely group African Americans in this manner. And Josh Justice Brier,

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Speaker 1: according to Greg's article, said he'd hoped that the last ruling,

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Speaker 1: the ruling would end these cases in this which it

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Speaker 1: certainly doesn't seem to have done. What would end these

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Speaker 1: cases going to the Supreme Court? Excuse me, um, I

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Speaker 1: think it's gonna be hard to end these cases in

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Speaker 1: general because of a weird procedural quirk in these cases,

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Speaker 1: and that the Supreme Court has to hear them. Here

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Speaker 1: an appeal from a three judge court. So, of course

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Speaker 1: the court could set down a harder standard, a stricter

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Speaker 1: standard from lower course to follow, but the losing party

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Speaker 1: has a right to appeal these three judge district court

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Speaker 1: cases directly to the Supreme Court. UH, and the Supreme

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Speaker 1: courts have to do something with them, whether it's UH

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Speaker 1: summarily affirm or deny whatever they do is presidential. So

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Speaker 1: I think Justice Brier may be hoping for a clearer standard. Um,

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Speaker 1: But as long as courts are still in the business

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Speaker 1: of redisearching, and as long as we have this procedural

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Speaker 1: rule with automatic appeal to the U. S. Supreme Court,

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Speaker 1: I don't see these cases ending anytime soon. Let me

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Speaker 1: circle back to that point you were talking about. One

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Speaker 1: of the questions in the courtroom today came from Justice Alito,

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Speaker 1: where he essentially says said that, hey, we're when you're

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Speaker 1: drawing lines for an entire decade, maybe it makes sense

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Speaker 1: to have a little bit of a buffer here. And

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Speaker 1: if you're going to have a you know, kind of

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Speaker 1: a set number, fifty minority seems like a pretty good

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Speaker 1: one in terms of giving minority voters the opportunity to

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Speaker 1: elect uh the candidate of their choosing. Well, that is

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Speaker 1: right with respect to getting sort of foresight and um,

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Speaker 1: some clear directions to people like me who end up

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Speaker 1: drawing these lines. But you know, this is the problem

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Speaker 1: when you have two legal standards that are in conflict,

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Speaker 1: which he said with each other. He would never say

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Speaker 1: that for a school desegregation case that for example, Oh well,

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Speaker 1: if he had a district that was fifty African American,

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Speaker 1: that we should that that would be what the Constitution desires.

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Speaker 1: For the most part, the conservatives have always been hostile

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Speaker 1: to the notion that you can have fixed quotas uh

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Speaker 1: and that that would be allowed by the Constitution. So

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Speaker 1: the question is why wouldn't that be the case here?

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Speaker 1: If you turn back the clock twenty years ago when

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Speaker 1: these cases first started coming up in the in the

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Speaker 1: context what's none of the show versus Reno line of cases, um,

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Speaker 1: it was this mechanical use of race that particularly irked

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Speaker 1: the more conservative justices, uh, so much so that Justice

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Speaker 1: O'Connor described it as tantamount to a political apartheid. And

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Speaker 1: so now the tables have been turned and the Democrats

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Speaker 1: are suing against these districts, and we'll see what they

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Speaker 1: decided to do. Josh, any final thoughts on whether which

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Speaker 1: way these are going to go, well, I mean, I

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Speaker 1: think the number is problematic for some of the justices.

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Speaker 1: I think a lot of them do not like using

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Speaker 1: hard and fast numbers of certain requirements of the needs.

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Speaker 1: Right that these states are really between a rock and

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Speaker 1: hard place and trying to comply with both devoting right

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Speaker 1: checked and the constitutional requirements. UM so I could see

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Speaker 1: that one certainly getting romanded and saying to Virginia, you

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Speaker 1: can't use this hard and fast number. The North caronlineal

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Speaker 1: one that's been had such a storied history that I

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Speaker 1: wouldn't be surprised to see that one adding another chaptering

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Speaker 1: and it being get sent down again as well. We

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Speaker 1: are going to have to leave it there. I want

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Speaker 1: to thank our guest Josh Douglas, law professor at the

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Speaker 1: University of Kentucky, and Nate Personally, a law professor at

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Speaker 1: Stanford University, talking about the voting rights cases at the

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Speaker 1: Supreme Court UH this week. The Supreme Court will rule

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Speaker 1: on them by June. That's it for this edition of

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Speaker 1: Bloomberg Law. We'll be back tomorrow thanks to our technical

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Speaker 1: director Chris tri Comey and our producer David Suckerman. You

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Speaker 1: can find more legal news at Bloomberg Law dot com

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Speaker 1: and Bloomberg Being a dot com, plus an environment website

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Speaker 1: for the legal community at Big Law Business dot com.

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Speaker 1: Coming up on Bloomberg Radio Bloomberg Markets with Carol Masser

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Speaker 1: and Corey Johnson. Stay tuned for that here on Bloomberg

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Speaker 1: Radio this is Bloomberg,