WEBVTT - Judges Rebuke Alabama and Throw Out Map

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 2>The Supreme Court and a panel of federal judges both

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<v Speaker 2>made it clear to Alabama, rejecting a Republican drawn congressional

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<v Speaker 2>map and requiring two majority black districts in the state

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<v Speaker 2>where twenty seven percent of the residents are black. But

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<v Speaker 2>there's only one black district out of seven. But when

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<v Speaker 2>Alabama lawmakers passed a new map in July, they ignored

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<v Speaker 2>both courts and created a map that still had only

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<v Speaker 2>one black district. Democratic and Republican state lawmakers see the

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<v Speaker 2>issue differently. Black voters should have the opportunity to pick

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<v Speaker 2>the candidate of their choice.

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

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<v Speaker 2>And now the same panel of judges have rejected the

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<v Speaker 2>newly drawn map and are taking the map job away

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<v Speaker 2>from the state legislature and putting it in the hands

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<v Speaker 2>of a special master. Joining me is elections law expert

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

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<v Speaker 2>with what the Supreme Court ruled in June.

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<v Speaker 1>So, in June, the Supreme Court took on a case

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<v Speaker 1>that had been initially decided by a lower court which

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<v Speaker 1>challenged Alabama's current congressional redistricting. As you noted, Alabama has

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<v Speaker 1>seven districts. State is approximately twenty seven percent black. There's

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<v Speaker 1>only one black majority district in the state. The lower

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<v Speaker 1>court found that it was easy to create a second

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<v Speaker 1>black majority district that would be compact and that was

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

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<v Speaker 1>a lot of racially polarized voting in Alabama, and that

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<v Speaker 1>there was a history of discrimination on really a gap

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<v Speaker 1>between black and white voters, so that the current system

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<v Speaker 1>of only one black majority district violated the voting Right Teck.

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<v Speaker 1>There was a five to four vote by the Court

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<v Speaker 1>affirming the finding by the district court that there was

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<v Speaker 1>a violation of the voting right Teck, and the Supreme

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<v Speaker 1>Court sent it back to the district court for remedy.

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<v Speaker 1>The district court, initially, as normally the pattern, said the

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<v Speaker 1>legislature should come up with a new map, the assumption

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<v Speaker 1>with the legislature would create a second black majority district.

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<v Speaker 1>During the litigation, the plaintiffs had come up with a

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<v Speaker 1>couple of alternative maps that were pretty similar to each other,

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<v Speaker 1>showing just how you could do this. The legislature, however,

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

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<v Speaker 1>reduced the black population of the one black majority district

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<v Speaker 1>and they created a second district which did not come

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<v Speaker 1>close to a black majority, was fewer than forty percent,

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<v Speaker 1>and based on the degree of racially polarized voting, was

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<v Speaker 1>doubtful that that would work as what sometimes called a

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<v Speaker 1>minority opportunity district, a black candidate whatever a serious chance

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<v Speaker 1>of winning. There was then a hearing before the same

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<v Speaker 1>three judge court that had issued the original decision, and

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<v Speaker 1>other three judge courtes the other day said no, Alabama's

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<v Speaker 1>a new plan does not remedy the violation. It remains unlawful,

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<v Speaker 1>and we're throwing it out and we're going to hire

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<v Speaker 1>a special master. This was us to come up with,

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<v Speaker 1>I think, couple of options which would be presented to

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<v Speaker 1>us with the idea that we would have a decision

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<v Speaker 1>by late November early October. Map that is not the

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<v Speaker 1>one that the legislature did, but one we're going to

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<v Speaker 1>use a special master to create.

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<v Speaker 2>The language of the decision was harsh, criticizing state officials.

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<v Speaker 2>The three judge panel wrote that they were deeply troubled.

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<v Speaker 2>They weren't aware of any other case in which the

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<v Speaker 2>state legislature refused to follow an order like this. We

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<v Speaker 2>have now said twice that this Voting Rights Act case

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<v Speaker 2>is not close. Do you think with that harsh language

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<v Speaker 2>they were trying to get their message across.

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<v Speaker 1>Yes, I mean I think they felt this was just

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<v Speaker 1>a blatant disregard of not only this court decision, but

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<v Speaker 1>of the Supreme Court's decision affirming this Court's decision. I

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<v Speaker 1>mean they were sending that message that, no, you were

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<v Speaker 1>defying that. The attitude of the legislature and the governor

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<v Speaker 1>who signed it with defiant, that it was defying both

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<v Speaker 1>the district court's order and the Supreme Court decision. And

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<v Speaker 1>so they wanted to make sure that that message got through.

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<v Speaker 2>In a statement, the Alabama Attorney General said, we strongly

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<v Speaker 2>believe the legislature's map complies with the Voting Rights Act

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<v Speaker 2>and the recent decision of the Supreme Court. And during

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<v Speaker 2>oral arguments, the state solicitor general said, quote, District two

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<v Speaker 2>is as close as you're going to get to a

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<v Speaker 2>second majority black district without violating the Supreme Court's decision.

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<v Speaker 2>What were their arguments in support of this map.

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<v Speaker 1>Their argument is that requiring a second black majority district

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<v Speaker 1>basically is a kind of mandated proportional representation, which, in

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<v Speaker 1>their view would be illegal and maybe an unconstitutional They

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<v Speaker 1>were relying very heavily on the Supreme Court's recent decision

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<v Speaker 1>dealing with the lawsuit which struck down a Harvard's use

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<v Speaker 1>of race in terms of admitting students and unc and

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<v Speaker 1>they felt that requiring a second black majority district was similar.

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<v Speaker 1>It's a kind of a nonconstitutional quota. But the lower

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<v Speaker 1>court said, and what the Supreme Court it said is no,

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<v Speaker 1>we're not mandating proportional representation. We found that the kind

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<v Speaker 1>of map that you drew before was a denial of

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<v Speaker 1>the equal opportunity of black voters to have representation in

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<v Speaker 1>Congress from Alabama. And your response simply maintains that. So,

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<v Speaker 1>I mean, it is kind of walking down the line

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<v Speaker 1>between saying that this is a mandated proportionality and that

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<v Speaker 1>it's a response it's a remedy to a proven case

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<v Speaker 1>of discrimination. The Alabama legislature, I think, is really relying

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<v Speaker 1>on the Harvard Affirmative Action case, and the Supreme Court,

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<v Speaker 1>of course decided the case with the Alabama congressional map

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<v Speaker 1>just days before the Harvard decision, and the Supreme Court

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<v Speaker 1>obviously thinks that they're both consistent. So the district court

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<v Speaker 1>basically said the same thing. Nobody here is mandating proportionality.

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<v Speaker 1>We're responding to and remedying proven violation.

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<v Speaker 2>So would they need to have two districts that are

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<v Speaker 2>fifty percent black or more?

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<v Speaker 1>No? Now, I think basically the idea is something known

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<v Speaker 1>as a district that takes performing district, which could be

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<v Speaker 1>one in which it's a significant enough why crossover voting

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<v Speaker 1>could be satisfied by under fifty percent black majority, although

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<v Speaker 1>given the high level of racially polarized voting in Alabama,

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<v Speaker 1>probably we have to be pretty close to fifty percent,

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<v Speaker 1>if not more.

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<v Speaker 2>Why did they reduce not by much, but why did

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<v Speaker 2>they reduce the black voters in the one district?

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<v Speaker 1>I think they effect to move them to the other

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<v Speaker 1>to bring up the black share of the other district,

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<v Speaker 1>which I think they got up to about thirty nine percent.

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<v Speaker 2>So Alabama says it's going to appeal to the Supreme Court,

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<v Speaker 2>Right are they thinking? Do you think they're thinking that?

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<v Speaker 2>Considering that the last vote was something of a surprise

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<v Speaker 2>because Chief Justice John Roberts and Justice Brett Kavanaugh sided

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<v Speaker 2>with the liberals. Do you think that they feel, well,

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<v Speaker 2>maybe we can convince those justices the second time around.

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<v Speaker 1>I think they're going to try and argue that this

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<v Speaker 1>is a portional representation. And the Supreme Court has said

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<v Speaker 1>the law doesn't require proportional representation. If proportion representation happened,

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<v Speaker 1>that's not a problem, but it's not a mandate. And

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<v Speaker 1>I think they're going to try and argue that that's

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

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<v Speaker 1>to face the Supreme Court infect just decided this case,

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<v Speaker 1>and I do wonder whether the Supreme Court is in

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<v Speaker 1>a mood that to take something that they have narrowly divided.

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<v Speaker 1>And Justice Cavana did make a point of writing separately

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<v Speaker 1>to say why he thought that the old map was unlawful,

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<v Speaker 1>but recognizing the difficult drown the line between what's called predominance,

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<v Speaker 1>that race is something that legation can take into accounter

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<v Speaker 1>that a remedial court can take into account and proportionality.

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<v Speaker 1>But I do think one question is the Supreme Court

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<v Speaker 1>really willing to countenance such explicit defiance of a Supreme

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<v Speaker 1>Court decision.

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<v Speaker 2>This litigation is being watched in Washington, d C. By

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<v Speaker 2>both sides. Have recent rulings over distarching maps given Democrats

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<v Speaker 2>more of a boost heading into the twenty twenty four elections.

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<v Speaker 1>Well, it's hard to say, I mean this one is

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<v Speaker 1>likely to produce an additional Democratic vote. Now Obama have

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<v Speaker 1>not been a lot of decisions, and often what the

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<v Speaker 1>Court has done is actually stopped challenges. Even in this case,

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<v Speaker 1>the lower court had found that the Alabama plan from

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<v Speaker 1>twenty twenty one was unlawful, but the Supreme Court stayed

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<v Speaker 1>that decision in order to be heard by the Supreme Court,

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<v Speaker 1>which meant that the unlawful plan was actually used last year.

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<v Speaker 1>So there are a couple of other pending cases. There's

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<v Speaker 1>one I think coming through Louisiana which raises issue similar

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<v Speaker 1>to the one in Alabama. And there's a case the

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<v Speaker 1>Supreme Court has agreed to hear this fall dealing with

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<v Speaker 1>a district in South Carolina. Again, all these on claims

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<v Speaker 1>of racial discrimination in how they're being drawn, but maybe

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<v Speaker 1>just a significant of the case of the Supreme Court

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<v Speaker 1>has not heard. For example, the Supreme Court decisions several

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<v Speaker 1>years back not to take on partisan jerrymandering, and.

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<v Speaker 2>These other redistricting cases that come before the Supreme Court,

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<v Speaker 2>will the analysis be the same as it was in

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<v Speaker 2>the Alabama case.

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<v Speaker 1>Well, I think with the Alabama case, the five to

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<v Speaker 1>four vote and Supreme Court indicates is that the Court

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<v Speaker 1>basically is willing to stick with the standard adopted in

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<v Speaker 1>the nineteen eighties, which says that if plaintiffs can show

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<v Speaker 1>that you could created another and I think they use

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<v Speaker 1>the word reasonably configure district, not one with odd shapes

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<v Speaker 1>and odd hooks and odd tentacles recently configure district. That

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<v Speaker 1>there is political cohesion among the plaintiffs Black plaintiffs or

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

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<v Speaker 1>and that there are other factors the history of discrimination

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<v Speaker 1>or other features in the community. The totality of the

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<v Speaker 1>circumstances that show that the current map makes it hard

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<v Speaker 1>for black voters or Latino voters to have an equal

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<v Speaker 1>opportunity to elect candidates of their choice, they can strike

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<v Speaker 1>down a map and require that it be changed. And

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<v Speaker 1>the Court that doctrine goes back to the nineteen eighties.

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<v Speaker 1>There was some thought that the Court in recent years

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<v Speaker 1>has been less empathetic to the Voting Rights Act and

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<v Speaker 1>that they might want to change that require maybe more

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<v Speaker 1>proof of intentional discrimination, or otherwise change the law. But

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<v Speaker 1>the Court that was probably the most significant feature of

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<v Speaker 1>the discrom Court's decision last year is to basically say,

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<v Speaker 1>we are sticking with the doctrine. Even Justice Kavanaugh, who

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<v Speaker 1>wrote separately, said yes, I agree, this is the doctrine.

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

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<v Speaker 2>And even the Chief Justice joined with the liberals in

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<v Speaker 2>that case, and he was the one that basically led

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<v Speaker 2>the march against the Voting Rights Act. In the Shelby County.

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<v Speaker 1>Case, Justice fro the opinion that struck down the preclearance,

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<v Speaker 1>but this is one where he was persuaded that the

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<v Speaker 1>plaintiffs had made a case, and he was persuaded that

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<v Speaker 1>the lower court, which is a three judge panel, lower

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<v Speaker 1>court sitting three judge panels when there is a challenge

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<v Speaker 1>to a redistricting map which consisted of a Court of

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<v Speaker 1>Appeals judge and two district judges. And it's worth pointing

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<v Speaker 1>out that the two district judges were appointed by President Trump.

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<v Speaker 1>They wrote like a two hundred page opinion. They said, yes,

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<v Speaker 1>we are persuaded that you can draw a reasonably configured map.

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<v Speaker 1>It does respect traditional districting lines like compactness and respect

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<v Speaker 1>for county lines and communities of interest. There is racially

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<v Speaker 1>polarized voting, and there are other other circumstances. And he

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<v Speaker 1>basically said, the plaintiffs and really the three judge panel

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<v Speaker 1>make the case that under existing doctrine, the map is illegal,

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<v Speaker 1>and maybe just as important, we see no reason to

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<v Speaker 1>reopen existing doctrine if the existing approach of the voting

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<v Speaker 1>right tact.

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<v Speaker 2>Let's turn to Florida now, where a state court, a

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<v Speaker 2>trial judge ruled that Florida Governor Ron Descantis violated the

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<v Speaker 2>state constitution and discriminated against black voters when he overhauled

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<v Speaker 2>a northern congressional district previously held by a black Democrat.

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<v Speaker 1>So Florida also did like everybody else did, redistricting in

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<v Speaker 1>twenty twenty one, and traditionally or for some time now,

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<v Speaker 1>Florida has had a district across the northern border of

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<v Speaker 1>the state. We're sort of going from the Atlantic, just

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<v Speaker 1>on the border that goes below Georgia, kind of a long,

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<v Speaker 1>skinny district that particularly kind of links up Jacksonville and Tallahassee.

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<v Speaker 1>That district was created, I think sometime in the twenty

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<v Speaker 1>ten and it has not been a black majority, but

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<v Speaker 1>it's been a so called black opportunity district about forty

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<v Speaker 1>five percent black. It was consistently electing a black representative,

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<v Speaker 1>often with about sixty plus percent of the vote, and

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<v Speaker 1>the legislature in Georgia was originally inclined to keep it.

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<v Speaker 1>In twenty twenty one when they redistricted, the governor said,

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<v Speaker 1>now I want a different map, and in fact basically

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<v Speaker 1>had that district broken up into three districts or four districts,

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<v Speaker 1>and all of which had more substantial white majorities. The

0:12:18.559 --> 0:12:21.600
<v Speaker 1>black share in those districts ranged anywhere from about fifteen

0:12:21.600 --> 0:12:24.880
<v Speaker 1>percent or about thirty percent. That map was adopted, and

0:12:25.000 --> 0:12:28.040
<v Speaker 1>the incumbent black representativeho was a Democrat loss to seat

0:12:28.160 --> 0:12:31.280
<v Speaker 1>that has been challenged under the Florida constitution. It's a

0:12:31.320 --> 0:12:34.480
<v Speaker 1>state case, and the Florida voters about fifteen years ago

0:12:34.520 --> 0:12:38.319
<v Speaker 1>had adopted a constitutional amendment which really limits gerrymandering, and

0:12:38.400 --> 0:12:41.079
<v Speaker 1>one provision of it says that a map should not

0:12:41.160 --> 0:12:45.920
<v Speaker 1>be adopted, which diminishes the opportunity of voters to elect

0:12:45.960 --> 0:12:49.640
<v Speaker 1>their representatives on basis of race. So it's not just

0:12:49.840 --> 0:12:53.480
<v Speaker 1>a pure vote dilution argument. Is it an improper diminishment

0:12:53.800 --> 0:12:56.880
<v Speaker 1>of the opportunity of black voters to elect? And the

0:12:56.920 --> 0:13:00.559
<v Speaker 1>Florida Court said yes, obviously. The court so it's very

0:13:00.600 --> 0:13:05.480
<v Speaker 1>clear that this violates the anti diminishment provision of the

0:13:05.480 --> 0:13:08.240
<v Speaker 1>Florida Constitution. Now, I think it's only a trial court,

0:13:08.280 --> 0:13:10.120
<v Speaker 1>so there'll be an appeal like this to the Florida

0:13:10.200 --> 0:13:13.000
<v Speaker 1>Supreme Court. But at the moment, they have held that

0:13:13.080 --> 0:13:15.760
<v Speaker 1>when the legislature, at the governor's direction, broke up that

0:13:15.880 --> 0:13:19.880
<v Speaker 1>district into multiple districts, that that violated the Florida State Constitution.

0:13:20.360 --> 0:13:24.960
<v Speaker 2>There's a trial going on over Republican dram maps in Georgia,

0:13:25.360 --> 0:13:29.240
<v Speaker 2>a similar lawsuit brought by civil rights organizations is taking

0:13:29.280 --> 0:13:33.720
<v Speaker 2>place in Tennessee, and there are others coming up. Will

0:13:33.760 --> 0:13:37.439
<v Speaker 2>all these redistricting cases end up at the Supreme.

0:13:37.120 --> 0:13:40.319
<v Speaker 1>Court, I mean not necessarily. I mean the Supreme Court

0:13:40.360 --> 0:13:43.600
<v Speaker 1>may have concluded that they've done this. They may all

0:13:43.640 --> 0:13:45.360
<v Speaker 1>be appealed to the Supreme Court. Is not clear that

0:13:45.400 --> 0:13:48.080
<v Speaker 1>the Supreme Court will take them on on the merits

0:13:48.160 --> 0:13:51.000
<v Speaker 1>or in substance, and may just conclude that these are

0:13:51.040 --> 0:13:53.880
<v Speaker 1>depending on what's exactly going on behind them. They may

0:13:54.080 --> 0:13:55.959
<v Speaker 1>say it's very similar to the case we just in

0:13:56.040 --> 0:13:58.520
<v Speaker 1>in Alabama. But you're right. There is a case that

0:13:58.760 --> 0:14:01.480
<v Speaker 1>began in Atlanta earlier this week. There's a case that

0:14:01.720 --> 0:14:04.040
<v Speaker 1>I think that's happening in Louisiana. I think a trial

0:14:04.200 --> 0:14:06.319
<v Speaker 1>is scheduled for a little later this fall. They have

0:14:06.480 --> 0:14:09.120
<v Speaker 1>taken a case from South Carolina where the lower court

0:14:09.160 --> 0:14:12.280
<v Speaker 1>actually decided that case prior to this year's Supreme Court decision,

0:14:12.760 --> 0:14:15.200
<v Speaker 1>and it goes off on a slightly different issue about

0:14:15.200 --> 0:14:18.880
<v Speaker 1>whether or not the jerrymanderin that case was racial or partisan.

0:14:19.080 --> 0:14:21.680
<v Speaker 1>But yeah, in each one of them, the current plan

0:14:22.120 --> 0:14:26.160
<v Speaker 1>benefits Republicans, and if the plaintiffs win, in addition to

0:14:26.600 --> 0:14:29.080
<v Speaker 1>benefiting blackboters, is likely to benefit Democrats.

0:14:29.320 --> 0:14:31.880
<v Speaker 2>There's a lot to watch. Thanks so much, rich That's

0:14:31.880 --> 0:14:35.080
<v Speaker 2>Professor Richard Brafault of Columbia Law School, And that's it

0:14:35.160 --> 0:14:37.720
<v Speaker 2>for this edition of the Bloomberg Law Show. Remember you

0:14:37.760 --> 0:14:40.240
<v Speaker 2>can always get the latest legal news on our Bloomberg

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<v Speaker 2>Law Podcast. You can find them on Apple Podcasts, Spotify,

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0:14:49.560 --> 0:14:52.120
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0:14:52.200 --> 0:14:56.080
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<v Speaker 2>and you're listening to Bloomberg