1 00:00:00,080 --> 00:00:02,759 Speaker 1: A federal court has given Texas three days to say 2 00:00:02,840 --> 00:00:06,400 Speaker 1: if and when the Texas legislature will fix its voter maps. 3 00:00:06,760 --> 00:00:09,240 Speaker 1: In the long running legal battle, the three judge panel 4 00:00:09,360 --> 00:00:12,719 Speaker 1: rule that two congressional districts are proved by state Republican 5 00:00:12,800 --> 00:00:17,479 Speaker 1: lawmakers illegally discriminate against Hispanic and Black voters by deluding 6 00:00:17,520 --> 00:00:20,680 Speaker 1: their voting power. It's the fourth time federal courts have 7 00:00:20,800 --> 00:00:25,200 Speaker 1: declared Texas voter maps unfair. Texas cannot use its current 8 00:00:25,280 --> 00:00:29,320 Speaker 1: voter maps in the upcoming congressional mid term elections. Joining 9 00:00:29,360 --> 00:00:32,239 Speaker 1: me are two experts in voting rights, Justin Levitt, a 10 00:00:32,240 --> 00:00:36,239 Speaker 1: professor Loyola Law School and formerly a Deputy Assistant Attorney 11 00:00:36,240 --> 00:00:39,839 Speaker 1: General in the Justice Department's Civil Rights Division, and Richard Brafalt, 12 00:00:39,880 --> 00:00:42,560 Speaker 1: professor at Columbia Law School, chair of the Conflicts of 13 00:00:42,640 --> 00:00:46,479 Speaker 1: Interest Board of New York City. Justin you really do 14 00:00:46,680 --> 00:00:50,080 Speaker 1: need a map to figure out this six years of litigation, 15 00:00:50,240 --> 00:00:53,200 Speaker 1: and it took the court a one four page decision. 16 00:00:53,800 --> 00:00:57,760 Speaker 1: The judges concluded that these maps still carried the discriminatory 17 00:00:57,880 --> 00:01:02,200 Speaker 1: taint of districts that lawmakers are originally drew in. So 18 00:01:02,640 --> 00:01:07,240 Speaker 1: start us off with describing what happened in well. To 19 00:01:07,280 --> 00:01:09,040 Speaker 1: really get a handle on what happened in twenty eleven, 20 00:01:09,040 --> 00:01:12,440 Speaker 1: you've got to start years and maybe decades earlier. Texas 21 00:01:12,560 --> 00:01:16,080 Speaker 1: is what we call a repeat offender in this area. UM. 22 00:01:16,120 --> 00:01:20,080 Speaker 1: It has had problems with drawing district lines impermissibly on 23 00:01:20,120 --> 00:01:22,960 Speaker 1: the basis of race, UH and abusing race in that 24 00:01:23,040 --> 00:01:27,440 Speaker 1: process pretty much every decade since it began to draw lines, 25 00:01:27,480 --> 00:01:30,280 Speaker 1: and in compliance with the Spring Courts, one person, one 26 00:01:30,360 --> 00:01:33,560 Speaker 1: vote decisions UM. And this is the latest. So in 27 00:01:33,600 --> 00:01:38,039 Speaker 1: two thousand eleven, Texas went to draw lines. UH. Those 28 00:01:38,080 --> 00:01:42,960 Speaker 1: lines were blocked by the preclearance process that was then 29 00:01:43,000 --> 00:01:45,280 Speaker 1: in place, where Texas had to check in with the 30 00:01:45,319 --> 00:01:49,440 Speaker 1: federal government before it could give effect to its laws 31 00:01:49,520 --> 00:01:53,440 Speaker 1: because of its troubled racial history. UM. In the meantime, 32 00:01:54,080 --> 00:01:57,880 Speaker 1: the court drew temporary lines to get us through the cycle. 33 00:01:58,600 --> 00:02:04,480 Speaker 1: The legislature then essentially ratified those lines, and the Court 34 00:02:04,560 --> 00:02:07,200 Speaker 1: came back today and said, look, what we did is 35 00:02:07,320 --> 00:02:11,000 Speaker 1: temporary and was always intended to be temporary, But there 36 00:02:11,040 --> 00:02:14,040 Speaker 1: were serious problems with the compromise we put in place 37 00:02:14,080 --> 00:02:16,640 Speaker 1: because there were serious problems with the underlying map, and 38 00:02:16,720 --> 00:02:21,760 Speaker 1: those serious problems persist Richard, what has Texas defense of 39 00:02:21,800 --> 00:02:26,080 Speaker 1: the maps been over the last six years. Well, the 40 00:02:26,080 --> 00:02:29,440 Speaker 1: most recent round of defense has been ge we didn't 41 00:02:29,480 --> 00:02:33,320 Speaker 1: do anything wrong. We just adopted with some minor changes 42 00:02:33,320 --> 00:02:36,440 Speaker 1: of the courts map. So as Justin says and j 43 00:02:36,480 --> 00:02:38,040 Speaker 1: when you talk about having a map, it really didn't 44 00:02:38,040 --> 00:02:41,760 Speaker 1: really needed to tail timeline is when the courts blocked, 45 00:02:43,040 --> 00:02:46,600 Speaker 1: when the lines were compending us whether or not they'd 46 00:02:46,600 --> 00:02:49,280 Speaker 1: be precleared. This court came up with a set of 47 00:02:49,320 --> 00:02:52,320 Speaker 1: its own lines, as Justin said, which were only marginally 48 00:02:52,320 --> 00:02:54,520 Speaker 1: different from the twenty eleven lines, and they said, we 49 00:02:54,560 --> 00:02:57,720 Speaker 1: haven't done any analysis, Uh, but we think that, you know, 50 00:02:57,720 --> 00:02:59,440 Speaker 1: we have to have some lines in place. And in 51 00:02:59,520 --> 00:03:02,880 Speaker 1: twenty routeam the texture. The legislatures simply in a very 52 00:03:03,000 --> 00:03:06,120 Speaker 1: very quick action and a special session basically took the 53 00:03:06,160 --> 00:03:10,080 Speaker 1: courts map and with a very very minor tinkering adopted that. 54 00:03:10,440 --> 00:03:14,200 Speaker 1: Texas defenses we can't be discriminatory. In effect, whatever it 55 00:03:14,240 --> 00:03:16,399 Speaker 1: was wrong with the twenty eleven lines, these aren't them. 56 00:03:17,240 --> 00:03:19,680 Speaker 1: All we did was followed up the court did. That's 57 00:03:19,760 --> 00:03:21,840 Speaker 1: that's the heart of the defense is that all we 58 00:03:21,919 --> 00:03:24,720 Speaker 1: did was follow up the court did. Justin In in 59 00:03:24,760 --> 00:03:28,239 Speaker 1: about a minute. The judges said that the Texas lawmakers 60 00:03:28,240 --> 00:03:31,280 Speaker 1: were trying to basically gain the system by adopting the 61 00:03:31,320 --> 00:03:36,960 Speaker 1: interim maps, and that it was a litigation strategy. How so, well, 62 00:03:37,120 --> 00:03:40,400 Speaker 1: this was designed to get them out of court, or 63 00:03:40,400 --> 00:03:43,280 Speaker 1: at least temporarily out of court and onto elections quickly. 64 00:03:43,640 --> 00:03:46,600 Speaker 1: But it wasn't designed. The two thousand thirteen lines, the 65 00:03:46,640 --> 00:03:49,760 Speaker 1: lines that Richard just mentioned, um, they weren't designed to 66 00:03:49,800 --> 00:03:52,920 Speaker 1: fix the problem. And the problem with the original maps 67 00:03:52,920 --> 00:03:57,200 Speaker 1: in twenty eleven were deep. Uh, they discriminated intentionally on 68 00:03:57,240 --> 00:04:01,240 Speaker 1: the basis of race. Texas took, as Richard said, very 69 00:04:01,320 --> 00:04:05,240 Speaker 1: quick action to try and ratify the courts compromised, but 70 00:04:05,280 --> 00:04:08,640 Speaker 1: the original taint of those two thousand eleven lines persisted, 71 00:04:09,000 --> 00:04:12,000 Speaker 1: and the court recognized the other day that you've got 72 00:04:12,000 --> 00:04:14,880 Speaker 1: to take stronger remedial action when there's real troublesome action 73 00:04:15,000 --> 00:04:18,279 Speaker 1: intentionally discriminating based on race. I've been talking with Professor 74 00:04:18,360 --> 00:04:21,520 Speaker 1: Richard Brifault of Columbia Law School and Professor Justin Levitt 75 00:04:21,520 --> 00:04:24,920 Speaker 1: of Loyola Law School about a federal court giving Texas 76 00:04:24,960 --> 00:04:28,320 Speaker 1: three days to say if and when the legislature will 77 00:04:28,360 --> 00:04:32,680 Speaker 1: fix its voter maps. After finding that they illegally discriminate 78 00:04:32,720 --> 00:04:37,000 Speaker 1: against Hispanic and Black voters. Fourth time, the judge the 79 00:04:37,040 --> 00:04:42,880 Speaker 1: courts have declared Texas voter maps unfair rich The courts 80 00:04:42,920 --> 00:04:46,640 Speaker 1: given Texas three days. At the same time, we have 81 00:04:47,080 --> 00:04:50,479 Speaker 1: the ag of Texas saying that he is going to 82 00:04:50,520 --> 00:04:54,480 Speaker 1: appeal this to the Supreme Court, where this has been before. 83 00:04:55,080 --> 00:04:59,200 Speaker 1: So what happens in three days exactly? Um, I think 84 00:04:59,240 --> 00:05:01,760 Speaker 1: what they have the court that basically for the response 85 00:05:01,839 --> 00:05:04,640 Speaker 1: from the late ages, whether or not Texas will take 86 00:05:04,680 --> 00:05:09,800 Speaker 1: this up again. Uh, if not, of the court itself 87 00:05:09,800 --> 00:05:12,000 Speaker 1: will be in the process in in a couple of weeks, 88 00:05:12,080 --> 00:05:14,200 Speaker 1: right for Labor Day. So that's that's sort of the 89 00:05:14,240 --> 00:05:16,400 Speaker 1: in substance of court lay out is either you do it, 90 00:05:16,440 --> 00:05:18,120 Speaker 1: either you tell us right away that you're going to 91 00:05:18,200 --> 00:05:21,719 Speaker 1: take it up, or we will do it uh fairly soon. 92 00:05:22,000 --> 00:05:24,839 Speaker 1: Either way, they know they know that elections are coming 93 00:05:25,080 --> 00:05:26,680 Speaker 1: and they want to make sure they have enough time. 94 00:05:27,000 --> 00:05:30,880 Speaker 1: So justin what what's likely to happen, what are they 95 00:05:30,960 --> 00:05:34,760 Speaker 1: likely to say, and how difficult to process would it be. 96 00:05:34,880 --> 00:05:38,760 Speaker 1: It's two congressional districts, but that affects other congressional districts. 97 00:05:39,400 --> 00:05:41,440 Speaker 1: It sure does they're going to have to redraw not 98 00:05:41,480 --> 00:05:44,120 Speaker 1: only those two districts, but the districts around them, And 99 00:05:44,240 --> 00:05:46,880 Speaker 1: redistricting often has ripple effects, so that may affect the 100 00:05:46,880 --> 00:05:49,880 Speaker 1: districts around them and around them. Um. I suspect the 101 00:05:49,920 --> 00:05:52,240 Speaker 1: Texas legislature is going to want to keep as much 102 00:05:52,240 --> 00:05:54,760 Speaker 1: control of this process as they can. That's certainly been 103 00:05:55,480 --> 00:05:57,279 Speaker 1: the way that they've been inclined in the past, and 104 00:05:57,320 --> 00:06:00,400 Speaker 1: so I suspect they will attempt to come back contraw 105 00:06:00,600 --> 00:06:03,480 Speaker 1: for medial maps. Um. But there again, they're going to 106 00:06:03,560 --> 00:06:07,040 Speaker 1: have to be careful to actually undo the harm. They 107 00:06:07,080 --> 00:06:09,480 Speaker 1: weren't willing to do that in two thousand thirteen. There 108 00:06:09,480 --> 00:06:11,719 Speaker 1: are real questions about whether they're willing to do that now, 109 00:06:12,000 --> 00:06:16,839 Speaker 1: and if they don't remedy fully remedied the discrimination, the 110 00:06:16,920 --> 00:06:20,240 Speaker 1: Court's fully prepared to step in. Rich. One of the 111 00:06:20,279 --> 00:06:25,039 Speaker 1: more interesting questions that this brings up to me is 112 00:06:25,800 --> 00:06:28,679 Speaker 1: what are the odds now that Texas might be forced 113 00:06:28,720 --> 00:06:33,159 Speaker 1: back under federal supervision for any future changes the state 114 00:06:33,240 --> 00:06:36,799 Speaker 1: lawmakers make to election rules. So give us a little 115 00:06:36,760 --> 00:06:40,359 Speaker 1: insight into what happened when the U. S. Supreme Court 116 00:06:40,440 --> 00:06:43,360 Speaker 1: struck down the heart of the Voting Rights Act and 117 00:06:43,680 --> 00:06:46,719 Speaker 1: what may happen here? Sure, So a key piece of 118 00:06:46,839 --> 00:06:50,039 Speaker 1: the Voting Rights actist called Section five, so called pre clearance, 119 00:06:50,480 --> 00:06:53,800 Speaker 1: And what it said is that they're based on the 120 00:06:53,839 --> 00:06:57,520 Speaker 1: past use of illegal tests and very low voter registration 121 00:06:57,560 --> 00:07:01,720 Speaker 1: and turnout. And it goes back to the these certain jurisdiction, 122 00:07:01,839 --> 00:07:05,080 Speaker 1: certain states are certain counties are in effects suspect the 123 00:07:05,080 --> 00:07:08,200 Speaker 1: combination of the illegal voting tests and low turn up 124 00:07:08,240 --> 00:07:10,760 Speaker 1: means we think there's something funny in these places, and 125 00:07:10,800 --> 00:07:13,080 Speaker 1: we think that if we strike down one bad thing 126 00:07:13,240 --> 00:07:15,200 Speaker 1: will come in with another, which had been the practice 127 00:07:15,200 --> 00:07:18,480 Speaker 1: in those states. And so what Congress said is if 128 00:07:18,520 --> 00:07:22,680 Speaker 1: you fall within this this category of problem jurisdictions, when 129 00:07:22,680 --> 00:07:25,080 Speaker 1: you change your voting laws, they don't go into effect 130 00:07:25,160 --> 00:07:28,000 Speaker 1: right away. They have to be pre cleared either by 131 00:07:28,040 --> 00:07:31,040 Speaker 1: a local federal district court or by the Attorney General. 132 00:07:31,080 --> 00:07:33,000 Speaker 1: Most cases went through the attorney general if you went 133 00:07:33,000 --> 00:07:36,000 Speaker 1: through federal district court in Washington, and that was the 134 00:07:36,080 --> 00:07:39,080 Speaker 1: law for about fifty years until this case called Shelby 135 00:07:39,160 --> 00:07:43,320 Speaker 1: County in where the Supreme Court said the formula that 136 00:07:43,320 --> 00:07:47,360 Speaker 1: that that Congress is using to identify these problem jurisdictions 137 00:07:47,680 --> 00:07:49,920 Speaker 1: relies on old data it really goes back to the 138 00:07:50,000 --> 00:07:52,880 Speaker 1: nineteen seventies and we think they can't use that form 139 00:07:52,920 --> 00:07:55,160 Speaker 1: of They didn't actually get rid of the concept of preclearance, 140 00:07:55,400 --> 00:07:58,520 Speaker 1: but they said you can't use this old formula and so. 141 00:07:58,680 --> 00:08:02,080 Speaker 1: But that effectively killed preclearance as it stood. But there's 142 00:08:02,120 --> 00:08:04,440 Speaker 1: another provision of the Voting Rights Act, which some people 143 00:08:04,480 --> 00:08:07,240 Speaker 1: like to call bail in, and it says, even if 144 00:08:07,280 --> 00:08:10,120 Speaker 1: you're not one of those problem jurisdictions, if as a 145 00:08:10,160 --> 00:08:13,720 Speaker 1: result of things that you're doing now, a legal activity 146 00:08:13,760 --> 00:08:16,560 Speaker 1: you're doing now, a federal court determines that you ought 147 00:08:16,640 --> 00:08:19,280 Speaker 1: to be subject to this kind of review because you've 148 00:08:19,280 --> 00:08:23,120 Speaker 1: proven yourself to be a problem, calling him a problem jurisdiction, 149 00:08:23,480 --> 00:08:26,240 Speaker 1: then in fact the court can retain jurisdiction and say 150 00:08:26,640 --> 00:08:29,520 Speaker 1: going forward for some set of voting could be all 151 00:08:29,600 --> 00:08:32,559 Speaker 1: voting issues, or some set of voting issues like redistricting. 152 00:08:32,840 --> 00:08:36,160 Speaker 1: Once again, they don't go into effect until we get 153 00:08:36,200 --> 00:08:38,760 Speaker 1: to review them. Uh. And that's the idea is that 154 00:08:38,800 --> 00:08:40,679 Speaker 1: this says hasn't been used a law that has been 155 00:08:40,760 --> 00:08:43,000 Speaker 1: using a handful of cases. Some people have said that 156 00:08:43,040 --> 00:08:45,720 Speaker 1: maybe it should be used a lot more now given 157 00:08:45,880 --> 00:08:49,120 Speaker 1: the lack of general preclearance is to have this bail 158 00:08:49,200 --> 00:08:52,680 Speaker 1: in process for for jurisdictions that show by their current 159 00:08:52,760 --> 00:08:56,920 Speaker 1: actions that their problem jurisdictions. So justin are you willing 160 00:08:56,920 --> 00:08:58,640 Speaker 1: to go out on a limb here and say how 161 00:08:58,720 --> 00:09:02,760 Speaker 1: likely it is that to Texas maybe forced back as 162 00:09:02,800 --> 00:09:07,119 Speaker 1: a as a repeat offender. I've talked about Texas in particular, 163 00:09:07,720 --> 00:09:10,720 Speaker 1: repeat offender not just on redistricting maps, but but also 164 00:09:10,760 --> 00:09:14,040 Speaker 1: on very strict voter id laws. UM courts have found 165 00:09:14,080 --> 00:09:18,440 Speaker 1: three different times that those were designed to intentionally discriminate 166 00:09:18,480 --> 00:09:21,160 Speaker 1: against minorities. I've talked about Texas as a sort of 167 00:09:21,200 --> 00:09:23,600 Speaker 1: the inverse New York New York scenario. If you can 168 00:09:23,640 --> 00:09:27,160 Speaker 1: make a case anywhere, you can make it there. And 169 00:09:27,240 --> 00:09:30,880 Speaker 1: so if this knew, if this provision to pull problem 170 00:09:30,960 --> 00:09:33,560 Speaker 1: jurisdictions back under federal supervision is going to have any 171 00:09:33,559 --> 00:09:37,400 Speaker 1: teeth whatsoever, Texas is the poster child UM. It has 172 00:09:37,440 --> 00:09:41,160 Speaker 1: had repeated problems dealing with race again for for fifty 173 00:09:41,200 --> 00:09:43,520 Speaker 1: six years, and those aren't just in the past, as 174 00:09:43,559 --> 00:09:46,840 Speaker 1: all of these ruling show, it has a continuing problem today. 175 00:09:47,280 --> 00:09:51,080 Speaker 1: And so of the states where this has been requested, 176 00:09:51,400 --> 00:09:53,120 Speaker 1: Texas is probably number one of the lists for the 177 00:09:53,160 --> 00:09:56,800 Speaker 1: likelihood of of getting put back under federal supervision and 178 00:09:56,960 --> 00:10:01,200 Speaker 1: thirty seconds. So rich Supreme were likely to take this 179 00:10:01,400 --> 00:10:04,880 Speaker 1: case yes or no? Um, Actually you have more than 180 00:10:05,000 --> 00:10:08,199 Speaker 1: that than yes or no. Here. It's hard because it's 181 00:10:08,360 --> 00:10:12,360 Speaker 1: very fact specific what's going on here, and the specific 182 00:10:12,600 --> 00:10:15,560 Speaker 1: legal question of you know, what does it mean for 183 00:10:15,600 --> 00:10:18,839 Speaker 1: there to be discriminatory intent and kind of belgis natures 184 00:10:18,880 --> 00:10:22,320 Speaker 1: discriminatory intent be inferred to the fact that they didn't 185 00:10:22,360 --> 00:10:25,679 Speaker 1: change something that had previously been struck down. I think 186 00:10:25,720 --> 00:10:29,640 Speaker 1: it's not a great question for the Supreme Court, right, so, 187 00:10:29,720 --> 00:10:33,200 Speaker 1: but who knows the Supreme Court exactly. We'll have to 188 00:10:33,280 --> 00:10:35,720 Speaker 1: leave it there, but we'll be back to this issue again. 189 00:10:35,760 --> 00:10:38,680 Speaker 1: I am sure. Thank you both for being on Bloomberg Law. 190 00:10:38,880 --> 00:10:43,000 Speaker 1: That's Richard Brafald, professor at Columbia Law School and Justin Leavitt, 191 00:10:43,120 --> 00:10:45,960 Speaker 1: professor at Loyola Law School in Los Angeles.