WEBVTT - DOJ Drops Objections to Texas Voter ID Law (Audio) 0:00:00.440 --> 0:00:04.280 The Trump administration does a complete one eighty reversing the 0:00:04.320 --> 0:00:08.400 Justice Department's position on voting rights. Under President Obama, the 0:00:08.480 --> 0:00:12.280 Justice Department led high profile challenges against strict voter i 0:00:12.360 --> 0:00:15.400 D laws and states, including the toughest in the nation, 0:00:15.760 --> 0:00:19.560 the Texas Voter ID law. The Justice Department under Attorney 0:00:19.600 --> 0:00:23.200 General Jeff Sessions told the federal judge yesterday that it 0:00:23.239 --> 0:00:26.639 was withdrawing a key claim in that lawsuit. During his 0:00:26.720 --> 0:00:31.040 confirmation hearing, Sessions was questioned sharply over his past record 0:00:31.080 --> 0:00:35.839 of opposing voting rights measures. I deeply understand the history 0:00:36.120 --> 0:00:40.400 of civil rights in our country and the horrendous impact 0:00:40.760 --> 0:00:45.920 that relentless and systemic discrimination and the denial of voting 0:00:46.040 --> 0:00:49.720 rights has had on our African American brothers and sisters. 0:00:50.520 --> 0:00:54.240 A fellow Senator, Corey Booker of New Jersey, even testified 0:00:54.280 --> 0:00:58.560 against Sessions. He will be expected to defend voting rights, 0:00:58.600 --> 0:01:01.720 but his record indicates the he won't. This is the 0:01:01.760 --> 0:01:05.040 second time in a week the Trump administration reversed course 0:01:05.080 --> 0:01:08.399 in the Justice department stance in a major civil rights case. 0:01:09.000 --> 0:01:11.120 Our guests are Rick hass In, a professor at the 0:01:11.200 --> 0:01:14.520 University of California, Irvine School of Law and founder of 0:01:14.560 --> 0:01:18.120 the Election Law Blog, and Richard Brafald, professor at Columbia 0:01:18.240 --> 0:01:22.640 University Law School. Rick did this reversal by the Justice 0:01:22.680 --> 0:01:27.200 Department and withdrawal of the claim that Texas enacted this 0:01:27.319 --> 0:01:33.160 law with discriminatory intent surprise you. It didn't surprise me. 0:01:33.319 --> 0:01:36.920 I think that we know that both M. Jeff Sessions 0:01:36.959 --> 0:01:39.600 and Donald Trump have different views on voting rights and 0:01:39.600 --> 0:01:42.880 the potential for voter fraud than Barack Obama and Loretta 0:01:42.959 --> 0:01:46.000 Lynch did. This was actually just the first step. It 0:01:46.120 --> 0:01:48.640 was just the Department of Justice withdrawing from one little 0:01:48.680 --> 0:01:53.880 piece of the case. Uh. And there's still more to come, 0:01:54.280 --> 0:01:56.280 and I expect that we're going to see more reversals, 0:01:56.280 --> 0:01:58.040 not only in this case, but in other cases like 0:01:58.120 --> 0:02:02.960 it going forward. Rich a fault. What's the the significance 0:02:03.120 --> 0:02:08.840 of the the discrimintory discriminatory intent part of this case? 0:02:08.919 --> 0:02:11.680 That there's still the discriminatory effect part of this case 0:02:11.760 --> 0:02:16.080 that the Justice Department is still involved in, Sure it 0:02:16.120 --> 0:02:20.400 may go more towards remedies. One consequence of finding a 0:02:20.400 --> 0:02:24.560 discribinatory intent is that a court could throw the entire statute, 0:02:24.639 --> 0:02:27.880 the entire Texas law that I posed various new requirements 0:02:27.880 --> 0:02:30.679 in order to vote, as opposed to just knocking out 0:02:30.720 --> 0:02:33.519 the particular piece that was determined to have a discriminatory effect. 0:02:33.840 --> 0:02:37.440 If you see discriminatory intent, the entire statute is tainted. 0:02:37.720 --> 0:02:40.239 The other possibility is there is a provision of the 0:02:40.320 --> 0:02:43.640 Voting Rights Act, as we all know, the so called 0:02:43.880 --> 0:02:47.880 UH the cover jurisdiction provision that required preclearance of voting 0:02:47.919 --> 0:02:50.840 law changes in certain states, which included Texas. That was 0:02:50.919 --> 0:02:53.680 knocked out effectively knocked out by the Supreme Court in 0:02:54.520 --> 0:02:56.800 but there's still a provision in the law that provides 0:02:56.880 --> 0:02:59.359 as a remedy if jurisdictions are found to have committed 0:02:59.360 --> 0:03:02.600 serious voting writes violation. There's a provision in the law 0:03:02.639 --> 0:03:05.720 that allows what some people called the bail in placing 0:03:05.840 --> 0:03:09.080 that particular jurisdiction in a situation where it has it 0:03:09.120 --> 0:03:11.960 will have to see preclearance of a voting law changes 0:03:11.960 --> 0:03:14.320 for a period of time, subject to the approval of 0:03:14.360 --> 0:03:17.519 a court. So the real issues are remedy. UH, you 0:03:17.560 --> 0:03:19.679 could not get more of a statute. And also whether 0:03:19.720 --> 0:03:22.840 it might have been possible to bail in Texas to 0:03:22.880 --> 0:03:28.040 require preclearance of Texas voting changes going forward, Rick, what 0:03:28.160 --> 0:03:31.120 effect does it have on the case that the Justice 0:03:31.160 --> 0:03:35.120 Department has pulled out of that provision? The other plaintiffs 0:03:35.120 --> 0:03:38.720 in the case are still going forward. Well, that's right, 0:03:38.760 --> 0:03:42.880 So it doesn't scuttle the claim. The judge is hearing 0:03:42.920 --> 0:03:45.920 the claim today and will issue a ruling which will 0:03:45.960 --> 0:03:50.080 probably be appealed. And so, uh, what does it matter 0:03:50.120 --> 0:03:52.280 that DJ has done this? Well? It matters in a 0:03:52.280 --> 0:03:54.920 few ways. First, I think it's a symbolic thing that 0:03:54.960 --> 0:03:57.960 shows that the Department of Justice is going to be 0:03:58.000 --> 0:04:00.160 standing with those states that are making it hard to 0:04:00.200 --> 0:04:02.480 register and vote, rather than standing with the planeffs who 0:04:02.480 --> 0:04:06.240 have been suing in those states. Second, if d o 0:04:06.320 --> 0:04:10.000 J drops this one claim but remains in the case, 0:04:10.280 --> 0:04:12.720 I think that gives d o J a chance to 0:04:12.760 --> 0:04:15.800 try to influence things to help Texas, even though it's 0:04:15.840 --> 0:04:19.279 still uh nominally on the other side. So, for example, 0:04:19.320 --> 0:04:21.880 one issue that the trial court is going to have 0:04:21.960 --> 0:04:25.599 to face later on is, assuming there's a discriminatory effect 0:04:25.640 --> 0:04:29.039 found and not a discriminatory intent, what should the remedy be, 0:04:29.160 --> 0:04:31.440 the permanent remedy be? How do you soften this law 0:04:31.480 --> 0:04:34.159 and keep it on the books, and you can imagine 0:04:34.440 --> 0:04:38.120 the Department of Justice offering support for what Texas would 0:04:38.160 --> 0:04:39.760 like to do, which is probably much less than what 0:04:39.800 --> 0:04:43.839 plaintiffs want to do. And finally, I think that courts, 0:04:44.040 --> 0:04:46.520 especially if this makes to the Supreme Court, tend to 0:04:46.600 --> 0:04:48.720 listen to the position of the U. S Government and 0:04:48.760 --> 0:04:51.360 the Department of Justice. It can have influence and so 0:04:51.480 --> 0:04:55.120 it could actually affect how this case ultimately gets resolved. 0:04:55.160 --> 0:04:57.279 What is the position of the United States government takes 0:04:57.279 --> 0:05:01.039 on these very contentious kinds of issues, Lee Rick. The 0:05:01.240 --> 0:05:05.600 Texas legislature did introduce a new voter I D bill. 0:05:06.400 --> 0:05:11.200 Does that solve any of the problems of the former bill? Well, 0:05:11.920 --> 0:05:13.919 this was one of the reasons that the Department of 0:05:13.960 --> 0:05:18.680 Justice first tried to delay the hearing that's being held 0:05:18.680 --> 0:05:22.040 today on discriminatory intent and also said it was pulling 0:05:22.080 --> 0:05:26.480 out of the whole discriminatory intent claim to give the 0:05:26.520 --> 0:05:28.960 state a chance to fix the problems. Now, it's not 0:05:29.000 --> 0:05:31.880 clear how passing a new law would fix any problem 0:05:31.920 --> 0:05:35.400 with past discriminatory intent, but it could fix the problem 0:05:35.440 --> 0:05:38.600 with discriminatory effect, that is, if all the court ends 0:05:38.680 --> 0:05:42.520 up saying is that the law had a racially discriminatory 0:05:42.600 --> 0:05:45.400 impact on protect a minority voters. Then in terms of 0:05:45.400 --> 0:05:48.200 the remedy, the Fifth Circuit said, well, maybe you should 0:05:48.200 --> 0:05:50.080 listen to what the state thinks is the best way 0:05:50.080 --> 0:05:53.159 to remedy things. So it could have relevance going forward. 0:05:53.360 --> 0:05:55.720 It's not clear if anything's actually going to happen in 0:05:56.279 --> 0:05:58.719 the Texas legislature. I think a lot is going to 0:05:58.760 --> 0:06:01.520 depend on what happens on this amature intent, But it's 0:06:01.560 --> 0:06:03.600 kind of a lot of different moving parts. There is 0:06:03.640 --> 0:06:07.600 supposed to be some deference to how the UH state 0:06:07.680 --> 0:06:11.200 legislature wants to fix these kinds of problems. Richard talked 0:06:11.200 --> 0:06:14.880 to us about why the plaintiffs were alleging there was 0:06:15.000 --> 0:06:19.640 a discriminatory UH intent in this case. Was there especially 0:06:19.680 --> 0:06:23.000 strong evidence that Texas was doing this for a racially 0:06:23.000 --> 0:06:27.520 discriminatory purpose? Um? And how does that compare to you know, 0:06:27.680 --> 0:06:32.200 other states around the country where we have voter ID lawsuits. Well, 0:06:32.520 --> 0:06:34.920 one of the evidences that when the kinds of i 0:06:35.040 --> 0:06:38.440 D that the state would allow as as legitimate idea 0:06:38.440 --> 0:06:40.560 to be brought into the voting do you want to vote? 0:06:41.520 --> 0:06:44.600 There was evidence that so the i D was UH, 0:06:44.720 --> 0:06:46.920 the kinds of evidence that white voters are more likely 0:06:46.960 --> 0:06:50.640 to have like hunting licenses would be counted I das, 0:06:50.680 --> 0:06:53.080 like university i d s, college i d s, which 0:06:53.160 --> 0:06:55.160 might have been more commonly use by minority voters, were 0:06:55.160 --> 0:06:58.000 not counted. So there's a number of incident aspects of 0:06:58.040 --> 0:07:01.080 the lawn terms of what what both the impact but 0:07:01.279 --> 0:07:03.560 aspects of it. This seemed to be that we're arguably 0:07:03.640 --> 0:07:06.880 designed to have an impact, and whenever discriminatory impact is 0:07:06.920 --> 0:07:09.960 easier to prove the discriminatory intent. But they are related 0:07:10.320 --> 0:07:13.040 and if the if aspects of the law seemed like 0:07:13.160 --> 0:07:16.600 they were fine tune to treat a certain result, it 0:07:16.640 --> 0:07:19.200 will often be presumed that they were UH, and that 0:07:19.360 --> 0:07:21.600 I think was part of the argument the the intent 0:07:22.000 --> 0:07:24.520 sort of helps back up the effect. The intent also 0:07:24.560 --> 0:07:26.520 brings to bear just the issues like the timing, the 0:07:26.520 --> 0:07:29.280 way in which the law was pushed through, why it 0:07:29.320 --> 0:07:32.360 was adopted when it was, the statements by some of 0:07:32.360 --> 0:07:35.640 the some of the supporters after the fact statements and 0:07:35.880 --> 0:07:39.560 to be fair, UH and other and other aspects surrounding 0:07:39.560 --> 0:07:43.760 the adoption. There's rarely, rarely pure smoking gun evidence of intent, 0:07:43.840 --> 0:07:46.840 but often some of the evidence that supports effect will 0:07:46.880 --> 0:07:49.320 also support intent. In terms of why it's important to 0:07:49.320 --> 0:07:50.960 make it. It It does make it a stronger, a more 0:07:51.040 --> 0:07:53.840 dramatic case, and also I think it does it could 0:07:53.840 --> 0:07:56.760 potentially to a stronger remedy. A similar case was the 0:07:56.760 --> 0:07:58.960 one that was that was brought in North Carolina, and 0:07:59.000 --> 0:08:01.160 there you actually had the Fourth Circuit Court of Appeals, 0:08:01.200 --> 0:08:03.480 the court that sits civil court that is jurisdiction over 0:08:03.520 --> 0:08:05.840 North Carolina, actually saying that the way in which that 0:08:06.000 --> 0:08:09.400 state's law was designed, I think they used surgically precisely 0:08:09.480 --> 0:08:13.120 think uh to focus on minority voters. And I think 0:08:13.120 --> 0:08:16.080 that the court here didn't use that language the district court, 0:08:16.360 --> 0:08:19.320 but there were some aspects that suggest a similarity. Rick, 0:08:19.520 --> 0:08:25.160 Let's look forward the Trump's administration's change in strategy that 0:08:25.280 --> 0:08:30.280 we see coming. Could that empower other conservative control states 0:08:30.320 --> 0:08:34.640 to follow Texas lead and tighten their voter I D laws? 0:08:34.760 --> 0:08:40.200 Could it lead to changes in voting rights decisions ahead? Well, 0:08:40.240 --> 0:08:42.520 I think that this is the first step towards that. 0:08:42.760 --> 0:08:44.520 I think knowing that there will be a Department of 0:08:44.559 --> 0:08:46.640 Justice that's going to come in and sue will be 0:08:47.120 --> 0:08:50.280 um give some leeway to some of these states, but 0:08:50.320 --> 0:08:52.160 there's still be private plans who are going to sue. 0:08:52.200 --> 0:08:53.920 I think ultimately it's going to come down to how 0:08:54.280 --> 0:08:58.440 the courts treat these questions. And so this Texas case 0:08:58.480 --> 0:09:01.160 actually went up to the Supreme Court, and I think 0:09:01.160 --> 0:09:03.600 it was maybe about a month ago. The Supreme Court 0:09:03.600 --> 0:09:06.400 declined to hear the case, and Chief Justice Roberts, in 0:09:06.480 --> 0:09:10.520 an unusual move, uh issued a statement saying, Uh, we're 0:09:10.520 --> 0:09:13.480 not hearing this now, but that's because this case is 0:09:13.520 --> 0:09:17.120 still in process and we might hear it later. And 0:09:17.160 --> 0:09:20.520 so I think ultimately it's going to be whether the 0:09:20.559 --> 0:09:23.520 lower courts and probably the Supreme Court gives the green light. 0:09:23.600 --> 0:09:27.120 If what Texas and North Carolina did are found by 0:09:27.160 --> 0:09:29.800 the Supreme Court to be just fine, then I think 0:09:29.800 --> 0:09:33.160 we'll see lots of other states with Republican legislatures passing 0:09:33.160 --> 0:09:36.320 similar legislation. Richard, we only have about thirty seconds. But 0:09:36.559 --> 0:09:39.760 Rick wrote the other day that he thinks the Justice 0:09:39.800 --> 0:09:42.440 Department ultimately will end up on the other side of 0:09:42.480 --> 0:09:45.480 these cases. Do you agree with that. It's hard to know, 0:09:45.559 --> 0:09:49.160 but it's certainly a very plausible speculation. But Justice Partment 0:09:49.200 --> 0:09:51.000 did not withdraw from the case. The just said it 0:09:51.040 --> 0:09:53.880 was withdrawing support from a particular claim they're still in 0:09:53.960 --> 0:09:56.920 the case, and I think, as Rick may have suggested earlier, 0:09:57.080 --> 0:09:59.840 when this case reaches since remedial phase, they may come 0:09:59.840 --> 0:10:02.319 in on the side of Texas in terms of saying 0:10:02.840 --> 0:10:05.199 what the Texas latures rich leature has done. If they 0:10:05.320 --> 0:10:08.200 do anything is adequate in that case, they would not 0:10:08.240 --> 0:10:10.560 only be not supporting the plaintiffs, but they would be 0:10:10.600 --> 0:10:13.360 coming adverse. So it's hard to tell right now, but 0:10:13.720 --> 0:10:16.400 it wouldn't be a big surprise. Thank you both for 0:10:16.440 --> 0:10:20.040 being on Bloomberg Law. That's Professor Richard Brufault of Columbia 0:10:20.120 --> 0:10:24.119 University Law School and Professor Rick Hasson of the University 0:10:24.120 --> 0:10:27.120 of California Irvine School of Law.