1 00:00:00,440 --> 00:00:04,280 Speaker 1: The Trump administration does a complete one eighty reversing the 2 00:00:04,320 --> 00:00:08,400 Speaker 1: Justice Department's position on voting rights. Under President Obama, the 3 00:00:08,480 --> 00:00:12,280 Speaker 1: Justice Department led high profile challenges against strict voter i 4 00:00:12,360 --> 00:00:15,400 Speaker 1: D laws and states, including the toughest in the nation, 5 00:00:15,760 --> 00:00:19,560 Speaker 1: the Texas Voter ID law. The Justice Department under Attorney 6 00:00:19,600 --> 00:00:23,200 Speaker 1: General Jeff Sessions told the federal judge yesterday that it 7 00:00:23,239 --> 00:00:26,639 Speaker 1: was withdrawing a key claim in that lawsuit. During his 8 00:00:26,720 --> 00:00:31,040 Speaker 1: confirmation hearing, Sessions was questioned sharply over his past record 9 00:00:31,080 --> 00:00:35,839 Speaker 1: of opposing voting rights measures. I deeply understand the history 10 00:00:36,120 --> 00:00:40,400 Speaker 1: of civil rights in our country and the horrendous impact 11 00:00:40,760 --> 00:00:45,920 Speaker 1: that relentless and systemic discrimination and the denial of voting 12 00:00:46,040 --> 00:00:49,720 Speaker 1: rights has had on our African American brothers and sisters. 13 00:00:50,520 --> 00:00:54,240 Speaker 1: A fellow Senator, Corey Booker of New Jersey, even testified 14 00:00:54,280 --> 00:00:58,560 Speaker 1: against Sessions. He will be expected to defend voting rights, 15 00:00:58,600 --> 00:01:01,720 Speaker 1: but his record indicates the he won't. This is the 16 00:01:01,760 --> 00:01:05,040 Speaker 1: second time in a week the Trump administration reversed course 17 00:01:05,080 --> 00:01:08,399 Speaker 1: in the Justice department stance in a major civil rights case. 18 00:01:09,000 --> 00:01:11,120 Speaker 1: Our guests are Rick hass In, a professor at the 19 00:01:11,200 --> 00:01:14,520 Speaker 1: University of California, Irvine School of Law and founder of 20 00:01:14,560 --> 00:01:18,120 Speaker 1: the Election Law Blog, and Richard Brafald, professor at Columbia 21 00:01:18,240 --> 00:01:22,640 Speaker 1: University Law School. Rick did this reversal by the Justice 22 00:01:22,680 --> 00:01:27,200 Speaker 1: Department and withdrawal of the claim that Texas enacted this 23 00:01:27,319 --> 00:01:33,160 Speaker 1: law with discriminatory intent surprise you. It didn't surprise me. 24 00:01:33,319 --> 00:01:36,920 Speaker 1: I think that we know that both M. Jeff Sessions 25 00:01:36,959 --> 00:01:39,600 Speaker 1: and Donald Trump have different views on voting rights and 26 00:01:39,600 --> 00:01:42,880 Speaker 1: the potential for voter fraud than Barack Obama and Loretta 27 00:01:42,959 --> 00:01:46,000 Speaker 1: Lynch did. This was actually just the first step. It 28 00:01:46,120 --> 00:01:48,640 Speaker 1: was just the Department of Justice withdrawing from one little 29 00:01:48,680 --> 00:01:53,880 Speaker 1: piece of the case. Uh. And there's still more to come, 30 00:01:54,280 --> 00:01:56,280 Speaker 1: and I expect that we're going to see more reversals, 31 00:01:56,280 --> 00:01:58,040 Speaker 1: not only in this case, but in other cases like 32 00:01:58,120 --> 00:02:02,960 Speaker 1: it going forward. Rich a fault. What's the the significance 33 00:02:03,120 --> 00:02:08,840 Speaker 1: of the the discrimintory discriminatory intent part of this case? 34 00:02:08,919 --> 00:02:11,680 Speaker 1: That there's still the discriminatory effect part of this case 35 00:02:11,760 --> 00:02:16,080 Speaker 1: that the Justice Department is still involved in, Sure it 36 00:02:16,120 --> 00:02:20,400 Speaker 1: may go more towards remedies. One consequence of finding a 37 00:02:20,400 --> 00:02:24,560 Speaker 1: discribinatory intent is that a court could throw the entire statute, 38 00:02:24,639 --> 00:02:27,880 Speaker 1: the entire Texas law that I posed various new requirements 39 00:02:27,880 --> 00:02:30,679 Speaker 1: in order to vote, as opposed to just knocking out 40 00:02:30,720 --> 00:02:33,519 Speaker 1: the particular piece that was determined to have a discriminatory effect. 41 00:02:33,840 --> 00:02:37,440 Speaker 1: If you see discriminatory intent, the entire statute is tainted. 42 00:02:37,720 --> 00:02:40,239 Speaker 1: The other possibility is there is a provision of the 43 00:02:40,320 --> 00:02:43,640 Speaker 1: Voting Rights Act, as we all know, the so called 44 00:02:43,880 --> 00:02:47,880 Speaker 1: UH the cover jurisdiction provision that required preclearance of voting 45 00:02:47,919 --> 00:02:50,840 Speaker 1: law changes in certain states, which included Texas. That was 46 00:02:50,919 --> 00:02:53,680 Speaker 1: knocked out effectively knocked out by the Supreme Court in 47 00:02:54,520 --> 00:02:56,800 Speaker 1: but there's still a provision in the law that provides 48 00:02:56,880 --> 00:02:59,359 Speaker 1: as a remedy if jurisdictions are found to have committed 49 00:02:59,360 --> 00:03:02,600 Speaker 1: serious voting writes violation. There's a provision in the law 50 00:03:02,639 --> 00:03:05,720 Speaker 1: that allows what some people called the bail in placing 51 00:03:05,840 --> 00:03:09,080 Speaker 1: that particular jurisdiction in a situation where it has it 52 00:03:09,120 --> 00:03:11,960 Speaker 1: will have to see preclearance of a voting law changes 53 00:03:11,960 --> 00:03:14,320 Speaker 1: for a period of time, subject to the approval of 54 00:03:14,360 --> 00:03:17,519 Speaker 1: a court. So the real issues are remedy. UH, you 55 00:03:17,560 --> 00:03:19,679 Speaker 1: could not get more of a statute. And also whether 56 00:03:19,720 --> 00:03:22,840 Speaker 1: it might have been possible to bail in Texas to 57 00:03:22,880 --> 00:03:28,040 Speaker 1: require preclearance of Texas voting changes going forward, Rick, what 58 00:03:28,160 --> 00:03:31,120 Speaker 1: effect does it have on the case that the Justice 59 00:03:31,160 --> 00:03:35,120 Speaker 1: Department has pulled out of that provision? The other plaintiffs 60 00:03:35,120 --> 00:03:38,720 Speaker 1: in the case are still going forward. Well, that's right, 61 00:03:38,760 --> 00:03:42,880 Speaker 1: So it doesn't scuttle the claim. The judge is hearing 62 00:03:42,920 --> 00:03:45,920 Speaker 1: the claim today and will issue a ruling which will 63 00:03:45,960 --> 00:03:50,080 Speaker 1: probably be appealed. And so, uh, what does it matter 64 00:03:50,120 --> 00:03:52,280 Speaker 1: that DJ has done this? Well? It matters in a 65 00:03:52,280 --> 00:03:54,920 Speaker 1: few ways. First, I think it's a symbolic thing that 66 00:03:54,960 --> 00:03:57,960 Speaker 1: shows that the Department of Justice is going to be 67 00:03:58,000 --> 00:04:00,160 Speaker 1: standing with those states that are making it hard to 68 00:04:00,200 --> 00:04:02,480 Speaker 1: register and vote, rather than standing with the planeffs who 69 00:04:02,480 --> 00:04:06,240 Speaker 1: have been suing in those states. Second, if d o 70 00:04:06,320 --> 00:04:10,000 Speaker 1: J drops this one claim but remains in the case, 71 00:04:10,280 --> 00:04:12,720 Speaker 1: I think that gives d o J a chance to 72 00:04:12,760 --> 00:04:15,800 Speaker 1: try to influence things to help Texas, even though it's 73 00:04:15,840 --> 00:04:19,279 Speaker 1: still uh nominally on the other side. So, for example, 74 00:04:19,320 --> 00:04:21,880 Speaker 1: one issue that the trial court is going to have 75 00:04:21,960 --> 00:04:25,599 Speaker 1: to face later on is, assuming there's a discriminatory effect 76 00:04:25,640 --> 00:04:29,039 Speaker 1: found and not a discriminatory intent, what should the remedy be, 77 00:04:29,160 --> 00:04:31,440 Speaker 1: the permanent remedy be? How do you soften this law 78 00:04:31,480 --> 00:04:34,159 Speaker 1: and keep it on the books, and you can imagine 79 00:04:34,440 --> 00:04:38,120 Speaker 1: the Department of Justice offering support for what Texas would 80 00:04:38,160 --> 00:04:39,760 Speaker 1: like to do, which is probably much less than what 81 00:04:39,800 --> 00:04:43,839 Speaker 1: plaintiffs want to do. And finally, I think that courts, 82 00:04:44,040 --> 00:04:46,520 Speaker 1: especially if this makes to the Supreme Court, tend to 83 00:04:46,600 --> 00:04:48,720 Speaker 1: listen to the position of the U. S Government and 84 00:04:48,760 --> 00:04:51,360 Speaker 1: the Department of Justice. It can have influence and so 85 00:04:51,480 --> 00:04:55,120 Speaker 1: it could actually affect how this case ultimately gets resolved. 86 00:04:55,160 --> 00:04:57,279 Speaker 1: What is the position of the United States government takes 87 00:04:57,279 --> 00:05:01,039 Speaker 1: on these very contentious kinds of issues, Lee Rick. The 88 00:05:01,240 --> 00:05:05,600 Speaker 1: Texas legislature did introduce a new voter I D bill. 89 00:05:06,400 --> 00:05:11,200 Speaker 1: Does that solve any of the problems of the former bill? Well, 90 00:05:11,920 --> 00:05:13,919 Speaker 1: this was one of the reasons that the Department of 91 00:05:13,960 --> 00:05:18,680 Speaker 1: Justice first tried to delay the hearing that's being held 92 00:05:18,680 --> 00:05:22,040 Speaker 1: today on discriminatory intent and also said it was pulling 93 00:05:22,080 --> 00:05:26,480 Speaker 1: out of the whole discriminatory intent claim to give the 94 00:05:26,520 --> 00:05:28,960 Speaker 1: state a chance to fix the problems. Now, it's not 95 00:05:29,000 --> 00:05:31,880 Speaker 1: clear how passing a new law would fix any problem 96 00:05:31,920 --> 00:05:35,400 Speaker 1: with past discriminatory intent, but it could fix the problem 97 00:05:35,440 --> 00:05:38,600 Speaker 1: with discriminatory effect, that is, if all the court ends 98 00:05:38,680 --> 00:05:42,520 Speaker 1: up saying is that the law had a racially discriminatory 99 00:05:42,600 --> 00:05:45,400 Speaker 1: impact on protect a minority voters. Then in terms of 100 00:05:45,400 --> 00:05:48,200 Speaker 1: the remedy, the Fifth Circuit said, well, maybe you should 101 00:05:48,200 --> 00:05:50,080 Speaker 1: listen to what the state thinks is the best way 102 00:05:50,080 --> 00:05:53,159 Speaker 1: to remedy things. So it could have relevance going forward. 103 00:05:53,360 --> 00:05:55,720 Speaker 1: It's not clear if anything's actually going to happen in 104 00:05:56,279 --> 00:05:58,719 Speaker 1: the Texas legislature. I think a lot is going to 105 00:05:58,760 --> 00:06:01,520 Speaker 1: depend on what happens on this amature intent, But it's 106 00:06:01,560 --> 00:06:03,600 Speaker 1: kind of a lot of different moving parts. There is 107 00:06:03,640 --> 00:06:07,600 Speaker 1: supposed to be some deference to how the UH state 108 00:06:07,680 --> 00:06:11,200 Speaker 1: legislature wants to fix these kinds of problems. Richard talked 109 00:06:11,200 --> 00:06:14,880 Speaker 1: to us about why the plaintiffs were alleging there was 110 00:06:15,000 --> 00:06:19,640 Speaker 1: a discriminatory UH intent in this case. Was there especially 111 00:06:19,680 --> 00:06:23,000 Speaker 1: strong evidence that Texas was doing this for a racially 112 00:06:23,000 --> 00:06:27,520 Speaker 1: discriminatory purpose? Um? And how does that compare to you know, 113 00:06:27,680 --> 00:06:32,200 Speaker 1: other states around the country where we have voter ID lawsuits. Well, 114 00:06:32,520 --> 00:06:34,920 Speaker 1: one of the evidences that when the kinds of i 115 00:06:35,040 --> 00:06:38,440 Speaker 1: D that the state would allow as as legitimate idea 116 00:06:38,440 --> 00:06:40,560 Speaker 1: to be brought into the voting do you want to vote? 117 00:06:41,520 --> 00:06:44,600 Speaker 1: There was evidence that so the i D was UH, 118 00:06:44,720 --> 00:06:46,920 Speaker 1: the kinds of evidence that white voters are more likely 119 00:06:46,960 --> 00:06:50,640 Speaker 1: to have like hunting licenses would be counted I das, 120 00:06:50,680 --> 00:06:53,080 Speaker 1: like university i d s, college i d s, which 121 00:06:53,160 --> 00:06:55,160 Speaker 1: might have been more commonly use by minority voters, were 122 00:06:55,160 --> 00:06:58,000 Speaker 1: not counted. So there's a number of incident aspects of 123 00:06:58,040 --> 00:07:01,080 Speaker 1: the lawn terms of what what both the impact but 124 00:07:01,279 --> 00:07:03,560 Speaker 1: aspects of it. This seemed to be that we're arguably 125 00:07:03,640 --> 00:07:06,880 Speaker 1: designed to have an impact, and whenever discriminatory impact is 126 00:07:06,920 --> 00:07:09,960 Speaker 1: easier to prove the discriminatory intent. But they are related 127 00:07:10,320 --> 00:07:13,040 Speaker 1: and if the if aspects of the law seemed like 128 00:07:13,160 --> 00:07:16,600 Speaker 1: they were fine tune to treat a certain result, it 129 00:07:16,640 --> 00:07:19,200 Speaker 1: will often be presumed that they were UH, and that 130 00:07:19,360 --> 00:07:21,600 Speaker 1: I think was part of the argument the the intent 131 00:07:22,000 --> 00:07:24,520 Speaker 1: sort of helps back up the effect. The intent also 132 00:07:24,560 --> 00:07:26,520 Speaker 1: brings to bear just the issues like the timing, the 133 00:07:26,520 --> 00:07:29,280 Speaker 1: way in which the law was pushed through, why it 134 00:07:29,320 --> 00:07:32,360 Speaker 1: was adopted when it was, the statements by some of 135 00:07:32,360 --> 00:07:35,640 Speaker 1: the some of the supporters after the fact statements and 136 00:07:35,880 --> 00:07:39,560 Speaker 1: to be fair, UH and other and other aspects surrounding 137 00:07:39,560 --> 00:07:43,760 Speaker 1: the adoption. There's rarely, rarely pure smoking gun evidence of intent, 138 00:07:43,840 --> 00:07:46,840 Speaker 1: but often some of the evidence that supports effect will 139 00:07:46,880 --> 00:07:49,320 Speaker 1: also support intent. In terms of why it's important to 140 00:07:49,320 --> 00:07:50,960 Speaker 1: make it. It It does make it a stronger, a more 141 00:07:51,040 --> 00:07:53,840 Speaker 1: dramatic case, and also I think it does it could 142 00:07:53,840 --> 00:07:56,760 Speaker 1: potentially to a stronger remedy. A similar case was the 143 00:07:56,760 --> 00:07:58,960 Speaker 1: one that was that was brought in North Carolina, and 144 00:07:59,000 --> 00:08:01,160 Speaker 1: there you actually had the Fourth Circuit Court of Appeals, 145 00:08:01,200 --> 00:08:03,480 Speaker 1: the court that sits civil court that is jurisdiction over 146 00:08:03,520 --> 00:08:05,840 Speaker 1: North Carolina, actually saying that the way in which that 147 00:08:06,000 --> 00:08:09,400 Speaker 1: state's law was designed, I think they used surgically precisely 148 00:08:09,480 --> 00:08:13,120 Speaker 1: think uh to focus on minority voters. And I think 149 00:08:13,120 --> 00:08:16,080 Speaker 1: that the court here didn't use that language the district court, 150 00:08:16,360 --> 00:08:19,320 Speaker 1: but there were some aspects that suggest a similarity. Rick, 151 00:08:19,520 --> 00:08:25,160 Speaker 1: Let's look forward the Trump's administration's change in strategy that 152 00:08:25,280 --> 00:08:30,280 Speaker 1: we see coming. Could that empower other conservative control states 153 00:08:30,320 --> 00:08:34,640 Speaker 1: to follow Texas lead and tighten their voter I D laws? 154 00:08:34,760 --> 00:08:40,200 Speaker 1: Could it lead to changes in voting rights decisions ahead? Well, 155 00:08:40,240 --> 00:08:42,520 Speaker 1: I think that this is the first step towards that. 156 00:08:42,760 --> 00:08:44,520 Speaker 1: I think knowing that there will be a Department of 157 00:08:44,559 --> 00:08:46,640 Speaker 1: Justice that's going to come in and sue will be 158 00:08:47,120 --> 00:08:50,280 Speaker 1: um give some leeway to some of these states, but 159 00:08:50,320 --> 00:08:52,160 Speaker 1: there's still be private plans who are going to sue. 160 00:08:52,200 --> 00:08:53,920 Speaker 1: I think ultimately it's going to come down to how 161 00:08:54,280 --> 00:08:58,440 Speaker 1: the courts treat these questions. And so this Texas case 162 00:08:58,480 --> 00:09:01,160 Speaker 1: actually went up to the Supreme Court, and I think 163 00:09:01,160 --> 00:09:03,600 Speaker 1: it was maybe about a month ago. The Supreme Court 164 00:09:03,600 --> 00:09:06,400 Speaker 1: declined to hear the case, and Chief Justice Roberts, in 165 00:09:06,480 --> 00:09:10,520 Speaker 1: an unusual move, uh issued a statement saying, Uh, we're 166 00:09:10,520 --> 00:09:13,480 Speaker 1: not hearing this now, but that's because this case is 167 00:09:13,520 --> 00:09:17,120 Speaker 1: still in process and we might hear it later. And 168 00:09:17,160 --> 00:09:20,520 Speaker 1: so I think ultimately it's going to be whether the 169 00:09:20,559 --> 00:09:23,520 Speaker 1: lower courts and probably the Supreme Court gives the green light. 170 00:09:23,600 --> 00:09:27,120 Speaker 1: If what Texas and North Carolina did are found by 171 00:09:27,160 --> 00:09:29,800 Speaker 1: the Supreme Court to be just fine, then I think 172 00:09:29,800 --> 00:09:33,160 Speaker 1: we'll see lots of other states with Republican legislatures passing 173 00:09:33,160 --> 00:09:36,320 Speaker 1: similar legislation. Richard, we only have about thirty seconds. But 174 00:09:36,559 --> 00:09:39,760 Speaker 1: Rick wrote the other day that he thinks the Justice 175 00:09:39,800 --> 00:09:42,440 Speaker 1: Department ultimately will end up on the other side of 176 00:09:42,480 --> 00:09:45,480 Speaker 1: these cases. Do you agree with that. It's hard to know, 177 00:09:45,559 --> 00:09:49,160 Speaker 1: but it's certainly a very plausible speculation. But Justice Partment 178 00:09:49,200 --> 00:09:51,000 Speaker 1: did not withdraw from the case. The just said it 179 00:09:51,040 --> 00:09:53,880 Speaker 1: was withdrawing support from a particular claim they're still in 180 00:09:53,960 --> 00:09:56,920 Speaker 1: the case, and I think, as Rick may have suggested earlier, 181 00:09:57,080 --> 00:09:59,840 Speaker 1: when this case reaches since remedial phase, they may come 182 00:09:59,840 --> 00:10:02,319 Speaker 1: in on the side of Texas in terms of saying 183 00:10:02,840 --> 00:10:05,199 Speaker 1: what the Texas latures rich leature has done. If they 184 00:10:05,320 --> 00:10:08,200 Speaker 1: do anything is adequate in that case, they would not 185 00:10:08,240 --> 00:10:10,560 Speaker 1: only be not supporting the plaintiffs, but they would be 186 00:10:10,600 --> 00:10:13,360 Speaker 1: coming adverse. So it's hard to tell right now, but 187 00:10:13,720 --> 00:10:16,400 Speaker 1: it wouldn't be a big surprise. Thank you both for 188 00:10:16,440 --> 00:10:20,040 Speaker 1: being on Bloomberg Law. That's Professor Richard Brufault of Columbia 189 00:10:20,120 --> 00:10:24,119 Speaker 1: University Law School and Professor Rick Hasson of the University 190 00:10:24,120 --> 00:10:27,120 Speaker 1: of California Irvine School of Law.