Speaker 1: The Trump administration does a complete one eighty reversing the
Speaker 1: Justice Department's position on voting rights. Under President Obama, the
Speaker 1: Justice Department led high profile challenges against strict voter i
Speaker 1: D laws and states, including the toughest in the nation,
Speaker 1: the Texas Voter ID law. The Justice Department under Attorney
Speaker 1: General Jeff Sessions told the federal judge yesterday that it
Speaker 1: was withdrawing a key claim in that lawsuit. During his
Speaker 1: confirmation hearing, Sessions was questioned sharply over his past record
Speaker 1: of opposing voting rights measures. I deeply understand the history
Speaker 1: of civil rights in our country and the horrendous impact
Speaker 1: that relentless and systemic discrimination and the denial of voting
Speaker 1: rights has had on our African American brothers and sisters.
Speaker 1: A fellow Senator, Corey Booker of New Jersey, even testified
Speaker 1: against Sessions. He will be expected to defend voting rights,
Speaker 1: but his record indicates the he won't. This is the
Speaker 1: second time in a week the Trump administration reversed course
Speaker 1: in the Justice department stance in a major civil rights case.
Speaker 1: Our guests are Rick hass In, a professor at the
Speaker 1: University of California, Irvine School of Law and founder of
Speaker 1: the Election Law Blog, and Richard Brafald, professor at Columbia
Speaker 1: University Law School. Rick did this reversal by the Justice
Speaker 1: Department and withdrawal of the claim that Texas enacted this
Speaker 1: law with discriminatory intent surprise you. It didn't surprise me.
Speaker 1: I think that we know that both M. Jeff Sessions
Speaker 1: and Donald Trump have different views on voting rights and
Speaker 1: the potential for voter fraud than Barack Obama and Loretta
Speaker 1: Lynch did. This was actually just the first step. It
Speaker 1: was just the Department of Justice withdrawing from one little
Speaker 1: piece of the case. Uh. And there's still more to come,
Speaker 1: and I expect that we're going to see more reversals,
Speaker 1: not only in this case, but in other cases like
Speaker 1: it going forward. Rich a fault. What's the the significance
Speaker 1: of the the discrimintory discriminatory intent part of this case?
Speaker 1: That there's still the discriminatory effect part of this case
Speaker 1: that the Justice Department is still involved in, Sure it
Speaker 1: may go more towards remedies. One consequence of finding a
Speaker 1: discribinatory intent is that a court could throw the entire statute,
Speaker 1: the entire Texas law that I posed various new requirements
Speaker 1: in order to vote, as opposed to just knocking out
Speaker 1: the particular piece that was determined to have a discriminatory effect.
Speaker 1: If you see discriminatory intent, the entire statute is tainted.
Speaker 1: The other possibility is there is a provision of the
Speaker 1: Voting Rights Act, as we all know, the so called
Speaker 1: UH the cover jurisdiction provision that required preclearance of voting
Speaker 1: law changes in certain states, which included Texas. That was
Speaker 1: knocked out effectively knocked out by the Supreme Court in
Speaker 1: but there's still a provision in the law that provides
Speaker 1: as a remedy if jurisdictions are found to have committed
Speaker 1: serious voting writes violation. There's a provision in the law
Speaker 1: that allows what some people called the bail in placing
Speaker 1: that particular jurisdiction in a situation where it has it
Speaker 1: will have to see preclearance of a voting law changes
Speaker 1: for a period of time, subject to the approval of
Speaker 1: a court. So the real issues are remedy. UH, you
Speaker 1: could not get more of a statute. And also whether
Speaker 1: it might have been possible to bail in Texas to
Speaker 1: require preclearance of Texas voting changes going forward, Rick, what
Speaker 1: effect does it have on the case that the Justice
Speaker 1: Department has pulled out of that provision? The other plaintiffs
Speaker 1: in the case are still going forward. Well, that's right,
Speaker 1: So it doesn't scuttle the claim. The judge is hearing
Speaker 1: the claim today and will issue a ruling which will
Speaker 1: probably be appealed. And so, uh, what does it matter
Speaker 1: that DJ has done this? Well? It matters in a
Speaker 1: few ways. First, I think it's a symbolic thing that
Speaker 1: shows that the Department of Justice is going to be
Speaker 1: standing with those states that are making it hard to
Speaker 1: register and vote, rather than standing with the planeffs who
Speaker 1: have been suing in those states. Second, if d o
Speaker 1: J drops this one claim but remains in the case,
Speaker 1: I think that gives d o J a chance to
Speaker 1: try to influence things to help Texas, even though it's
Speaker 1: still uh nominally on the other side. So, for example,
Speaker 1: one issue that the trial court is going to have
Speaker 1: to face later on is, assuming there's a discriminatory effect
Speaker 1: found and not a discriminatory intent, what should the remedy be,
Speaker 1: the permanent remedy be? How do you soften this law
Speaker 1: and keep it on the books, and you can imagine
Speaker 1: the Department of Justice offering support for what Texas would
Speaker 1: like to do, which is probably much less than what
Speaker 1: plaintiffs want to do. And finally, I think that courts,
Speaker 1: especially if this makes to the Supreme Court, tend to
Speaker 1: listen to the position of the U. S Government and
Speaker 1: the Department of Justice. It can have influence and so
Speaker 1: it could actually affect how this case ultimately gets resolved.
Speaker 1: What is the position of the United States government takes
Speaker 1: on these very contentious kinds of issues, Lee Rick. The
Speaker 1: Texas legislature did introduce a new voter I D bill.
Speaker 1: Does that solve any of the problems of the former bill? Well,
Speaker 1: this was one of the reasons that the Department of
Speaker 1: Justice first tried to delay the hearing that's being held
Speaker 1: today on discriminatory intent and also said it was pulling
Speaker 1: out of the whole discriminatory intent claim to give the
Speaker 1: state a chance to fix the problems. Now, it's not
Speaker 1: clear how passing a new law would fix any problem
Speaker 1: with past discriminatory intent, but it could fix the problem
Speaker 1: with discriminatory effect, that is, if all the court ends
Speaker 1: up saying is that the law had a racially discriminatory
Speaker 1: impact on protect a minority voters. Then in terms of
Speaker 1: the remedy, the Fifth Circuit said, well, maybe you should
Speaker 1: listen to what the state thinks is the best way
Speaker 1: to remedy things. So it could have relevance going forward.
Speaker 1: It's not clear if anything's actually going to happen in
Speaker 1: the Texas legislature. I think a lot is going to
Speaker 1: depend on what happens on this amature intent, But it's
Speaker 1: kind of a lot of different moving parts. There is
Speaker 1: supposed to be some deference to how the UH state
Speaker 1: legislature wants to fix these kinds of problems. Richard talked
Speaker 1: to us about why the plaintiffs were alleging there was
Speaker 1: a discriminatory UH intent in this case. Was there especially
Speaker 1: strong evidence that Texas was doing this for a racially
Speaker 1: discriminatory purpose? Um? And how does that compare to you know,
Speaker 1: other states around the country where we have voter ID lawsuits. Well,
Speaker 1: one of the evidences that when the kinds of i
Speaker 1: D that the state would allow as as legitimate idea
Speaker 1: to be brought into the voting do you want to vote?
Speaker 1: There was evidence that so the i D was UH,
Speaker 1: the kinds of evidence that white voters are more likely
Speaker 1: to have like hunting licenses would be counted I das,
Speaker 1: like university i d s, college i d s, which
Speaker 1: might have been more commonly use by minority voters, were
Speaker 1: not counted. So there's a number of incident aspects of
Speaker 1: the lawn terms of what what both the impact but
Speaker 1: aspects of it. This seemed to be that we're arguably
Speaker 1: designed to have an impact, and whenever discriminatory impact is
Speaker 1: easier to prove the discriminatory intent. But they are related
Speaker 1: and if the if aspects of the law seemed like
Speaker 1: they were fine tune to treat a certain result, it
Speaker 1: will often be presumed that they were UH, and that
Speaker 1: I think was part of the argument the the intent
Speaker 1: sort of helps back up the effect. The intent also
Speaker 1: brings to bear just the issues like the timing, the
Speaker 1: way in which the law was pushed through, why it
Speaker 1: was adopted when it was, the statements by some of
Speaker 1: the some of the supporters after the fact statements and
Speaker 1: to be fair, UH and other and other aspects surrounding
Speaker 1: the adoption. There's rarely, rarely pure smoking gun evidence of intent,
Speaker 1: but often some of the evidence that supports effect will
Speaker 1: also support intent. In terms of why it's important to
Speaker 1: make it. It It does make it a stronger, a more
Speaker 1: dramatic case, and also I think it does it could
Speaker 1: potentially to a stronger remedy. A similar case was the
Speaker 1: one that was that was brought in North Carolina, and
Speaker 1: there you actually had the Fourth Circuit Court of Appeals,
Speaker 1: the court that sits civil court that is jurisdiction over
Speaker 1: North Carolina, actually saying that the way in which that
Speaker 1: state's law was designed, I think they used surgically precisely
Speaker 1: think uh to focus on minority voters. And I think
Speaker 1: that the court here didn't use that language the district court,
Speaker 1: but there were some aspects that suggest a similarity. Rick,
Speaker 1: Let's look forward the Trump's administration's change in strategy that
Speaker 1: we see coming. Could that empower other conservative control states
Speaker 1: to follow Texas lead and tighten their voter I D laws?
Speaker 1: Could it lead to changes in voting rights decisions ahead? Well,
Speaker 1: I think that this is the first step towards that.
Speaker 1: I think knowing that there will be a Department of
Speaker 1: Justice that's going to come in and sue will be
Speaker 1: um give some leeway to some of these states, but
Speaker 1: there's still be private plans who are going to sue.
Speaker 1: I think ultimately it's going to come down to how
Speaker 1: the courts treat these questions. And so this Texas case
Speaker 1: actually went up to the Supreme Court, and I think
Speaker 1: it was maybe about a month ago. The Supreme Court
Speaker 1: declined to hear the case, and Chief Justice Roberts, in
Speaker 1: an unusual move, uh issued a statement saying, Uh, we're
Speaker 1: not hearing this now, but that's because this case is
Speaker 1: still in process and we might hear it later. And
Speaker 1: so I think ultimately it's going to be whether the
Speaker 1: lower courts and probably the Supreme Court gives the green light.
Speaker 1: If what Texas and North Carolina did are found by
Speaker 1: the Supreme Court to be just fine, then I think
Speaker 1: we'll see lots of other states with Republican legislatures passing
Speaker 1: similar legislation. Richard, we only have about thirty seconds. But
Speaker 1: Rick wrote the other day that he thinks the Justice
Speaker 1: Department ultimately will end up on the other side of
Speaker 1: these cases. Do you agree with that. It's hard to know,
Speaker 1: but it's certainly a very plausible speculation. But Justice Partment
Speaker 1: did not withdraw from the case. The just said it
Speaker 1: was withdrawing support from a particular claim they're still in
Speaker 1: the case, and I think, as Rick may have suggested earlier,
Speaker 1: when this case reaches since remedial phase, they may come
Speaker 1: in on the side of Texas in terms of saying
Speaker 1: what the Texas latures rich leature has done. If they
Speaker 1: do anything is adequate in that case, they would not
Speaker 1: only be not supporting the plaintiffs, but they would be
Speaker 1: coming adverse. So it's hard to tell right now, but
Speaker 1: it wouldn't be a big surprise. Thank you both for
Speaker 1: being on Bloomberg Law. That's Professor Richard Brufault of Columbia
Speaker 1: University Law School and Professor Rick Hasson of the University
Speaker 1: of California Irvine School of Law.