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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: The Supreme Court and a panel of federal judges both

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Speaker 2: made it clear to Alabama, rejecting a Republican drawn congressional

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Speaker 2: map and requiring two majority black districts in the state

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Speaker 2: where twenty seven percent of the residents are black. But

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Speaker 2: there's only one black district out of seven. But when

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Speaker 2: Alabama lawmakers passed a new map in July, they ignored

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Speaker 2: both courts and created a map that still had only

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Speaker 2: one black district. Democratic and Republican state lawmakers see the

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Speaker 2: issue differently. Black voters should have the opportunity to pick

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Speaker 2: the candidate of their choice.

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Speaker 1: I don't think there's any malice or anything like that.

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Speaker 2: And now the same panel of judges have rejected the

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Speaker 2: newly drawn map and are taking the map job away

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Speaker 2: from the state legislature and putting it in the hands

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Speaker 2: of a special master. Joining me is elections law expert

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Speaker 2: Richard Brefald, a professor at Columbia Law School. Let's start

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Speaker 2: with what the Supreme Court ruled in June.

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Speaker 1: So, in June, the Supreme Court took on a case

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Speaker 1: that had been initially decided by a lower court which

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Speaker 1: challenged Alabama's current congressional redistricting. As you noted, Alabama has

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Speaker 1: seven districts. State is approximately twenty seven percent black. There's

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Speaker 1: only one black majority district in the state. The lower

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Speaker 1: court found that it was easy to create a second

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Speaker 1: black majority district that would be compact and that was

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Speaker 1: reasonably configured. That's the court toward, and that there was

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Speaker 1: a lot of racially polarized voting in Alabama, and that

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Speaker 1: there was a history of discrimination on really a gap

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Speaker 1: between black and white voters, so that the current system

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Speaker 1: of only one black majority district violated the voting Right Teck.

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Speaker 1: There was a five to four vote by the Court

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Speaker 1: affirming the finding by the district court that there was

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Speaker 1: a violation of the voting right Teck, and the Supreme

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Speaker 1: Court sent it back to the district court for remedy.

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Speaker 1: The district court, initially, as normally the pattern, said the

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Speaker 1: legislature should come up with a new map, the assumption

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Speaker 1: with the legislature would create a second black majority district.

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Speaker 1: During the litigation, the plaintiffs had come up with a

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Speaker 1: couple of alternative maps that were pretty similar to each other,

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Speaker 1: showing just how you could do this. The legislature, however,

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Speaker 1: didn't do that. Instead, they basically went back. They actually

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Speaker 1: reduced the black population of the one black majority district

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Speaker 1: and they created a second district which did not come

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Speaker 1: close to a black majority, was fewer than forty percent,

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Speaker 1: and based on the degree of racially polarized voting, was

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Speaker 1: doubtful that that would work as what sometimes called a

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Speaker 1: minority opportunity district, a black candidate whatever a serious chance

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Speaker 1: of winning. There was then a hearing before the same

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Speaker 1: three judge court that had issued the original decision, and

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Speaker 1: other three judge courtes the other day said no, Alabama's

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Speaker 1: a new plan does not remedy the violation. It remains unlawful,

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Speaker 1: and we're throwing it out and we're going to hire

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Speaker 1: a special master. This was us to come up with,

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Speaker 1: I think, couple of options which would be presented to

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Speaker 1: us with the idea that we would have a decision

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Speaker 1: by late November early October. Map that is not the

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Speaker 1: one that the legislature did, but one we're going to

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Speaker 1: use a special master to create.

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Speaker 2: The language of the decision was harsh, criticizing state officials.

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Speaker 2: The three judge panel wrote that they were deeply troubled.

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Speaker 2: They weren't aware of any other case in which the

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Speaker 2: state legislature refused to follow an order like this. We

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Speaker 2: have now said twice that this Voting Rights Act case

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Speaker 2: is not close. Do you think with that harsh language

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Speaker 2: they were trying to get their message across.

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Speaker 1: Yes, I mean I think they felt this was just

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Speaker 1: a blatant disregard of not only this court decision, but

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Speaker 1: of the Supreme Court's decision affirming this Court's decision. I

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Speaker 1: mean they were sending that message that, no, you were

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Speaker 1: defying that. The attitude of the legislature and the governor

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Speaker 1: who signed it with defiant, that it was defying both

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Speaker 1: the district court's order and the Supreme Court decision. And

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Speaker 1: so they wanted to make sure that that message got through.

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Speaker 2: In a statement, the Alabama Attorney General said, we strongly

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Speaker 2: believe the legislature's map complies with the Voting Rights Act

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Speaker 2: and the recent decision of the Supreme Court. And during

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Speaker 2: oral arguments, the state solicitor general said, quote, District two

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Speaker 2: is as close as you're going to get to a

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Speaker 2: second majority black district without violating the Supreme Court's decision.

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Speaker 2: What were their arguments in support of this map.

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Speaker 1: Their argument is that requiring a second black majority district

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Speaker 1: basically is a kind of mandated proportional representation, which, in

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Speaker 1: their view would be illegal and maybe an unconstitutional They

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Speaker 1: were relying very heavily on the Supreme Court's recent decision

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Speaker 1: dealing with the lawsuit which struck down a Harvard's use

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Speaker 1: of race in terms of admitting students and unc and

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Speaker 1: they felt that requiring a second black majority district was similar.

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Speaker 1: It's a kind of a nonconstitutional quota. But the lower

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Speaker 1: court said, and what the Supreme Court it said is no,

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Speaker 1: we're not mandating proportional representation. We found that the kind

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Speaker 1: of map that you drew before was a denial of

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Speaker 1: the equal opportunity of black voters to have representation in

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Speaker 1: Congress from Alabama. And your response simply maintains that. So,

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Speaker 1: I mean, it is kind of walking down the line

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Speaker 1: between saying that this is a mandated proportionality and that

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Speaker 1: it's a response it's a remedy to a proven case

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Speaker 1: of discrimination. The Alabama legislature, I think, is really relying

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Speaker 1: on the Harvard Affirmative Action case, and the Supreme Court,

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Speaker 1: of course decided the case with the Alabama congressional map

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Speaker 1: just days before the Harvard decision, and the Supreme Court

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Speaker 1: obviously thinks that they're both consistent. So the district court

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Speaker 1: basically said the same thing. Nobody here is mandating proportionality.

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Speaker 1: We're responding to and remedying proven violation.

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Speaker 2: So would they need to have two districts that are

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Speaker 2: fifty percent black or more?

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Speaker 1: No? Now, I think basically the idea is something known

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Speaker 1: as a district that takes performing district, which could be

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Speaker 1: one in which it's a significant enough why crossover voting

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Speaker 1: could be satisfied by under fifty percent black majority, although

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Speaker 1: given the high level of racially polarized voting in Alabama,

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Speaker 1: probably we have to be pretty close to fifty percent,

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Speaker 1: if not more.

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Speaker 2: Why did they reduce not by much, but why did

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Speaker 2: they reduce the black voters in the one district?

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Speaker 1: I think they effect to move them to the other

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Speaker 1: to bring up the black share of the other district,

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Speaker 1: which I think they got up to about thirty nine percent.

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Speaker 2: So Alabama says it's going to appeal to the Supreme Court,

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Speaker 2: Right are they thinking? Do you think they're thinking that?

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Speaker 2: Considering that the last vote was something of a surprise

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Speaker 2: because Chief Justice John Roberts and Justice Brett Kavanaugh sided

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Speaker 2: with the liberals. Do you think that they feel, well,

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Speaker 2: maybe we can convince those justices the second time around.

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Speaker 1: I think they're going to try and argue that this

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Speaker 1: is a portional representation. And the Supreme Court has said

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Speaker 1: the law doesn't require proportional representation. If proportion representation happened,

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Speaker 1: that's not a problem, but it's not a mandate. And

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Speaker 1: I think they're going to try and argue that that's

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Speaker 1: what this is. I think, but the problem they're going

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Speaker 1: to face the Supreme Court infect just decided this case,

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Speaker 1: and I do wonder whether the Supreme Court is in

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Speaker 1: a mood that to take something that they have narrowly divided.

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Speaker 1: And Justice Cavana did make a point of writing separately

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Speaker 1: to say why he thought that the old map was unlawful,

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Speaker 1: but recognizing the difficult drown the line between what's called predominance,

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Speaker 1: that race is something that legation can take into accounter

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Speaker 1: that a remedial court can take into account and proportionality.

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Speaker 1: But I do think one question is the Supreme Court

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Speaker 1: really willing to countenance such explicit defiance of a Supreme

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Speaker 1: Court decision.

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Speaker 2: This litigation is being watched in Washington, d C. By

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Speaker 2: both sides. Have recent rulings over distarching maps given Democrats

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Speaker 2: more of a boost heading into the twenty twenty four elections.

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Speaker 1: Well, it's hard to say, I mean this one is

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Speaker 1: likely to produce an additional Democratic vote. Now Obama have

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Speaker 1: not been a lot of decisions, and often what the

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Speaker 1: Court has done is actually stopped challenges. Even in this case,

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Speaker 1: the lower court had found that the Alabama plan from

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Speaker 1: twenty twenty one was unlawful, but the Supreme Court stayed

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Speaker 1: that decision in order to be heard by the Supreme Court,

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Speaker 1: which meant that the unlawful plan was actually used last year.

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Speaker 1: So there are a couple of other pending cases. There's

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Speaker 1: one I think coming through Louisiana which raises issue similar

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Speaker 1: to the one in Alabama. And there's a case the

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Speaker 1: Supreme Court has agreed to hear this fall dealing with

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Speaker 1: a district in South Carolina. Again, all these on claims

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Speaker 1: of racial discrimination in how they're being drawn, but maybe

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Speaker 1: just a significant of the case of the Supreme Court

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Speaker 1: has not heard. For example, the Supreme Court decisions several

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Speaker 1: years back not to take on partisan jerrymandering, and.

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Speaker 2: These other redistricting cases that come before the Supreme Court,

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Speaker 2: will the analysis be the same as it was in

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Speaker 2: the Alabama case.

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Speaker 1: Well, I think with the Alabama case, the five to

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Speaker 1: four vote and Supreme Court indicates is that the Court

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Speaker 1: basically is willing to stick with the standard adopted in

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Speaker 1: the nineteen eighties, which says that if plaintiffs can show

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Speaker 1: that you could created another and I think they use

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Speaker 1: the word reasonably configure district, not one with odd shapes

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Speaker 1: and odd hooks and odd tentacles recently configure district. That

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Speaker 1: there is political cohesion among the plaintiffs Black plaintiffs or

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Speaker 1: Latino plaintiffs, and that there's a lot of racially polarized voting,

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Speaker 1: and that there are other factors the history of discrimination

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Speaker 1: or other features in the community. The totality of the

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Speaker 1: circumstances that show that the current map makes it hard

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Speaker 1: for black voters or Latino voters to have an equal

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Speaker 1: opportunity to elect candidates of their choice, they can strike

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Speaker 1: down a map and require that it be changed. And

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Speaker 1: the Court that doctrine goes back to the nineteen eighties.

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Speaker 1: There was some thought that the Court in recent years

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Speaker 1: has been less empathetic to the Voting Rights Act and

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Speaker 1: that they might want to change that require maybe more

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Speaker 1: proof of intentional discrimination, or otherwise change the law. But

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Speaker 1: the Court that was probably the most significant feature of

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Speaker 1: the discrom Court's decision last year is to basically say,

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Speaker 1: we are sticking with the doctrine. Even Justice Kavanaugh, who

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Speaker 1: wrote separately, said yes, I agree, this is the doctrine.

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Speaker 1: We're sticking with the doctrine and what Alabama did violated that.

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Speaker 2: And even the Chief Justice joined with the liberals in

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Speaker 2: that case, and he was the one that basically led

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Speaker 2: the march against the Voting Rights Act. In the Shelby County.

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Speaker 1: Case, Justice fro the opinion that struck down the preclearance,

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Speaker 1: but this is one where he was persuaded that the

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Speaker 1: plaintiffs had made a case, and he was persuaded that

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Speaker 1: the lower court, which is a three judge panel, lower

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Speaker 1: court sitting three judge panels when there is a challenge

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Speaker 1: to a redistricting map which consisted of a Court of

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Speaker 1: Appeals judge and two district judges. And it's worth pointing

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Speaker 1: out that the two district judges were appointed by President Trump.

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Speaker 1: They wrote like a two hundred page opinion. They said, yes,

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Speaker 1: we are persuaded that you can draw a reasonably configured map.

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Speaker 1: It does respect traditional districting lines like compactness and respect

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Speaker 1: for county lines and communities of interest. There is racially

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Speaker 1: polarized voting, and there are other other circumstances. And he

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Speaker 1: basically said, the plaintiffs and really the three judge panel

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Speaker 1: make the case that under existing doctrine, the map is illegal,

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Speaker 1: and maybe just as important, we see no reason to

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Speaker 1: reopen existing doctrine if the existing approach of the voting

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Speaker 1: right tact.

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Speaker 2: Let's turn to Florida now, where a state court, a

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Speaker 2: trial judge ruled that Florida Governor Ron Descantis violated the

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Speaker 2: state constitution and discriminated against black voters when he overhauled

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Speaker 2: a northern congressional district previously held by a black Democrat.

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Speaker 1: So Florida also did like everybody else did, redistricting in

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Speaker 1: twenty twenty one, and traditionally or for some time now,

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Speaker 1: Florida has had a district across the northern border of

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Speaker 1: the state. We're sort of going from the Atlantic, just

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Speaker 1: on the border that goes below Georgia, kind of a long,

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Speaker 1: skinny district that particularly kind of links up Jacksonville and Tallahassee.

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Speaker 1: That district was created, I think sometime in the twenty

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Speaker 1: ten and it has not been a black majority, but

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Speaker 1: it's been a so called black opportunity district about forty

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Speaker 1: five percent black. It was consistently electing a black representative,

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Speaker 1: often with about sixty plus percent of the vote, and

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Speaker 1: the legislature in Georgia was originally inclined to keep it.

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Speaker 1: In twenty twenty one when they redistricted, the governor said,

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Speaker 1: now I want a different map, and in fact basically

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Speaker 1: had that district broken up into three districts or four districts,

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Speaker 1: and all of which had more substantial white majorities. The

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Speaker 1: black share in those districts ranged anywhere from about fifteen

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Speaker 1: percent or about thirty percent. That map was adopted, and

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Speaker 1: the incumbent black representativeho was a Democrat loss to seat

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Speaker 1: that has been challenged under the Florida constitution. It's a

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Speaker 1: state case, and the Florida voters about fifteen years ago

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Speaker 1: had adopted a constitutional amendment which really limits gerrymandering, and

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Speaker 1: one provision of it says that a map should not

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Speaker 1: be adopted, which diminishes the opportunity of voters to elect

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Speaker 1: their representatives on basis of race. So it's not just

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Speaker 1: a pure vote dilution argument. Is it an improper diminishment

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Speaker 1: of the opportunity of black voters to elect? And the

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Speaker 1: Florida Court said yes, obviously. The court so it's very

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Speaker 1: clear that this violates the anti diminishment provision of the

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Speaker 1: Florida Constitution. Now, I think it's only a trial court,

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Speaker 1: so there'll be an appeal like this to the Florida

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Speaker 1: Supreme Court. But at the moment, they have held that

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Speaker 1: when the legislature, at the governor's direction, broke up that

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Speaker 1: district into multiple districts, that that violated the Florida State Constitution.

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Speaker 2: There's a trial going on over Republican dram maps in Georgia,

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Speaker 2: a similar lawsuit brought by civil rights organizations is taking

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Speaker 2: place in Tennessee, and there are others coming up. Will

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Speaker 2: all these redistricting cases end up at the Supreme.

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Speaker 1: Court, I mean not necessarily. I mean the Supreme Court

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Speaker 1: may have concluded that they've done this. They may all

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Speaker 1: be appealed to the Supreme Court. Is not clear that

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Speaker 1: the Supreme Court will take them on on the merits

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Speaker 1: or in substance, and may just conclude that these are

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Speaker 1: depending on what's exactly going on behind them. They may

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Speaker 1: say it's very similar to the case we just in

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Speaker 1: in Alabama. But you're right. There is a case that

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Speaker 1: began in Atlanta earlier this week. There's a case that

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Speaker 1: I think that's happening in Louisiana. I think a trial

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Speaker 1: is scheduled for a little later this fall. They have

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Speaker 1: taken a case from South Carolina where the lower court

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Speaker 1: actually decided that case prior to this year's Supreme Court decision,

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Speaker 1: and it goes off on a slightly different issue about

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Speaker 1: whether or not the jerrymanderin that case was racial or partisan.

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Speaker 1: But yeah, in each one of them, the current plan

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Speaker 1: benefits Republicans, and if the plaintiffs win, in addition to

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Speaker 1: benefiting blackboters, is likely to benefit Democrats.

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Speaker 2: There's a lot to watch. Thanks so much, rich That's

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Speaker 2: Professor Richard Brafault of Columbia Law School, And that's it

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Speaker 2: for this edition of the Bloomberg Law Show. Remember you

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