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

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Speaker 1: It was one of the most watched and feared cases

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Speaker 1: of the Supreme Court term, advancing a sweeping Republican backed

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Speaker 1: effort to outstate judges from their long standing roles in

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Speaker 1: federal elections. But in a six to three decision, the

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Speaker 1: Supreme Court rejected the novel theory that would have given

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Speaker 1: state legislatures virtually unchecked power to make rules for congressional

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Speaker 1: and presidential elections, essentially without any oversight. Just as Elena

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Speaker 1: Kagan had warned about the consequences during the oral arguments.

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Speaker 2: It would say that legislatures could enact all manner of

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Speaker 2: restrictions on voting, get rid of all kinds of voter

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Speaker 2: protections that the state constitution in fact prohibits. It might

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Speaker 2: allow the legislators to insert themselves to give themselves a

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Speaker 2: role in the certification of elections.

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Speaker 1: And even some of the conservative justices expressed concerns about

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Speaker 1: the so called independent state legislature theory, with Justice Brett

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Speaker 1: Kavanaugh saying Republican arguments went beyond what three conservative justices

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Speaker 1: had laid out in a concurring opinion in the Bush v.

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Speaker 1: Gore case when they said that the Florida Supreme Court

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Speaker 1: had overstepped its authority by ordering ballot recounts.

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Speaker 3: Your position seems to go further than Chief Justice Ranquist

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Speaker 3: position in Bush fe. Gore, where he seemed to acknowledge

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Speaker 3: that state courts would have a role interpreting state law.

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Speaker 1: Joining me is an elections law expert Richard Brefald, a

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Speaker 1: professor at Columbia Law School. Rich this case was one

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Speaker 1: of the most watched of the Supreme Court term. How

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Speaker 1: important is this decision?

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Speaker 4: I think decision is very important, even if its significance

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Speaker 4: is not entirely clear. It's very clear that the Court

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Speaker 4: rejected the most extreme version of the argument that state

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Speaker 4: courts cannot interpret state constitutions in a way that limits

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Speaker 4: state election laws dealing with federal elections. The case was

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Speaker 4: brought to challenge the ability of state courts to read

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Speaker 4: their state constitutions to ban jerrymandering in federal elections in

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Speaker 4: congressional elections, and the Court rejected the most extreme version

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Speaker 4: and said that no state courts have a proper role

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Speaker 4: to play in reviewing the decisions of state legislatures, and

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Speaker 4: that includes applying state constitutional divisions that could limit state legislatures,

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Speaker 4: such as provisions limiting jerry mandering. But the Court left

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Speaker 4: open the possibility of some federal judicial review of state

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Speaker 4: court decisions to make sure that they were not to

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Speaker 4: extreme or extreme departures from prior state law. So the

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Speaker 4: Court kind of kept some space for itself to review

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Speaker 4: state court decisions, although it rejected the most extreme version

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Speaker 4: of the effort to limit state courts.

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Speaker 1: So explain what the independent state legislature theory is and

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Speaker 1: whether this this decision is a complete repudiation of that theory.

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Speaker 4: The independent state legislature theory grows out of the language

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Speaker 4: and the Constitution that says that the rules for running

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Speaker 4: congressional elections and the election of presidential electors are to

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Speaker 4: be set by the state legislature. The language literally says,

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Speaker 4: the times places in manner of holding elections for congress

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Speaker 4: is in one part of the Constitution. Of holding the

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Speaker 4: elections of the presidential electors another part of the Constitution

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Speaker 4: is to be set by the state legislature. That's what

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Speaker 4: the constitution says. So the question is if it says

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Speaker 4: the state legislature, do state courts have any role to

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Speaker 4: play in reviewing actions of the state legislature or in

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Speaker 4: even an interpreting actions of the state legislature. And this

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Speaker 4: came up in a case from North Carolina where the

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Speaker 4: North Carolina Supreme Court said that the North Carolina legislature

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Speaker 4: violated the North Carolina Constitution when it jerry mandered its

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Speaker 4: congressional plan. And the argument was made that basically, state

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Speaker 4: courts and state constitutions have no role to play in

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Speaker 4: limiting state legislatures when dealing with federal elections. And that's

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Speaker 4: the argument that the Supreme Court rejected. That's an independent

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Speaker 4: state legislature, that the state literature is independent of the

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Speaker 4: state court and the dependent of the state constitution. And

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Speaker 4: the Supreme Court flatly rejected that. But it did say

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Speaker 4: that since we are talking about federal elections and that

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Speaker 4: there is some role for the US Supreme Court in

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Speaker 4: reviewing state Supreme Court decisions reviewing state laws that impact

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Speaker 4: federal elections. So they didn't completely give state courts a

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Speaker 4: blank check, but they did affirm the idea that state

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Speaker 4: courts and state constitutions have legitimate roles to play in

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Speaker 4: reviewing state election laws that affect federal elections.

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Speaker 1: So the justices could have taken an off ramp and

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Speaker 1: not decided this. Why do you think they went forward

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Speaker 1: to decide it.

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Speaker 4: That's a good question, and a good part of the

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Speaker 4: court's opinion goes into why the case is not moved.

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Speaker 4: As you know, after the twenty twenty two election in

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Speaker 4: the North Carolina Supreme Court actually reversed its and said

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Speaker 4: that we no longer read our state constitution as banning

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Speaker 4: jerry mandering, and that the decision was now moved. The

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Speaker 4: court had kind of a technical reason as to why

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Speaker 4: it wasn't mood, saying, well, actually, the North Carolina Supreme

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Speaker 4: Court never withdrew the old decision, and indeed the old

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Speaker 4: decision striking down the original map that the state legislature

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Speaker 4: adopted is still law. The state is now actually writing

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Speaker 4: a new map. So the court had a technical argument

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Speaker 4: as to why it wasn't moot, and three justices dissented

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Speaker 4: from that. I think they felt that this issue has

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Speaker 4: been percolating now for some time. It came up and

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Speaker 4: wasn't directly addressed several times in the twenty twenty election,

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Speaker 4: and I think they felt this was a good case

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Speaker 4: as any for addressing the issue. It's likely to come back,

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Speaker 4: and right now there's no election pending, and if it

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Speaker 4: comes back, it'll come back next year. We're getting close

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Speaker 4: to twenty twenty four elections. So though they don't say this,

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Speaker 4: I think they felt this case was fully breathed. It

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Speaker 4: was argued an incredibly long argument. There were like two hours.

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Speaker 4: It got a huge amount of attention, and I think

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Speaker 4: they felt this was a good case as any for

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Speaker 4: actually putting down an opinion.

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Speaker 1: So it was six to three, with Justice as Brett

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Speaker 1: Kavanaugh and Amy Connie Barrett joining Roberts and the Court's

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Speaker 1: three liberals and the majority, just as Clarence Thomas, Samuel Leito,

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Speaker 1: and Neil Gorswitch dissented. Does the place of any justice

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Speaker 1: in that lineup surprise you at all?

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Speaker 4: Not really. I mean, I think I was less certain

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Speaker 4: about where Justice Barrett would come out. But I think

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Speaker 4: if you paying attention to the oral argument back in November,

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Speaker 4: I think you heard some skepticism from Roberts, from Kevanaugh,

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Speaker 4: and I think even from Barrett about the extreme nature

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Speaker 4: of the North Carolina Legislature's argument, And I think they

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Speaker 4: all had to point out that legislatures don't exist in

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Speaker 4: a vacuum. That they're creatures of state constitutions and they're

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Speaker 4: part of the state legal system. And I think the

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Speaker 4: extreme argument that North Carolina the legislature made, I think

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Speaker 4: helped shape the outcome of the case. And so I

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Speaker 4: think you also it was a case where there was

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Speaker 4: some concern that the argument that the legislature was making

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Speaker 4: would be like an extreme disrespect for state supreme courts,

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Speaker 4: and I think the justices also wanted to show some

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Speaker 4: respect for the role of state supreme courts that they

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Speaker 4: also engage in judicial review of state legislatures. Three of

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Speaker 4: the justices dissented on the mootonists. I mean, the first

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Speaker 4: part of Justice Thomas's opinion, which was joined by Justices

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Speaker 4: Corsage and Alido, was on Mootonis grounds that the case

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Speaker 4: really shouldn't have been taken. The remainder of the opinion,

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Speaker 4: which Justice Leader did not sign, was on the merits

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Speaker 4: and basically said we agree with this independen state legislature

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Speaker 4: theory that it's up to the legislature to make these

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Speaker 4: decisions and that there's no role for state courts.

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Speaker 1: Thomas dissented should he have accused himself since his wife,

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Speaker 1: Jinny Thomas was known to have been pushing the independent

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Speaker 1: state legislature theory.

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Speaker 4: Well maybe, but per involvement forces in the presidential election,

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Speaker 4: and this is a separate issue. Technically, it didn't involve

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Speaker 4: presidential elections and involved in elections. It's a separate litigation.

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Speaker 4: I think justices don't normally recuse either when they or

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Speaker 4: the spouse's the more unusual have expressed general views on

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Speaker 4: a legal theory, and then more likely to recuse or

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Speaker 4: to think about recusing when they or a family member

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Speaker 4: have a direct involvement in the particular case. And I

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Speaker 4: don't think there was anything like that in this case.

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Speaker 1: The mid term showed that control of Congress can depend

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Speaker 1: on the drawing of congressional lines. So what does this

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Speaker 1: decision mean for the twenty twenty four elections.

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Speaker 4: It doesn't really resolve anything in terms of that. I mean,

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Speaker 4: it leaves some role for state courts to review state

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Speaker 4: electional laws in light of state constitutions. But it also

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Speaker 4: means that the Supreme Court may be reviewing those decisions.

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Speaker 4: So I mean, I think we're going to see cases

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Speaker 4: citing this case and lawyers making arguments based on this case.

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Speaker 4: But I think it's too soon to tell how exactly

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Speaker 4: it's going to impact. I mean, this case involved with

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Speaker 4: an interpretation of the state constitution in North Carolina that

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Speaker 4: the North Carolina Court said kind of bar jerrymandering. There's

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Speaker 4: I think a case coming out of Ohio which raises

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Speaker 4: similar issues involving jerrymandering. But Ohio has a constitutional amendment

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Speaker 4: which clearly addresses jerry mandering. So there may be continuing

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Speaker 4: litigation involving districting, but I think most of the districting

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Speaker 4: issues from the current election cycle I think have been resolved.

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Speaker 4: But I do think we may see some impact of

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Speaker 4: this ant case coming out of Ohio.

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Speaker 1: I was going to ask you about that case because

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Speaker 1: the Supreme Court is reviewing an appeal right of that case.

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Speaker 4: I think this case helps the anti jerrymannoring position in

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Speaker 4: Ohio a bit because in North Carolina, one of the

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Speaker 4: problems for the anti Kerrymnnory position, so the North Carolina

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Speaker 4: Constitution doesn't literally address jerry mannering. It just talks about

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Speaker 4: free and fair elections, and the North Carolina Supreme Court,

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Speaker 4: in a decision which it has since dropped, said well,

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Speaker 4: that means no jerrymandering. Pennsylvania in court to set something

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Speaker 4: similar in Ohio, the voters actually amended their constitution to

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Speaker 4: put in restrictions on partisan cherry mandring. I think what

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Speaker 4: this case does is make it clear that that's valid

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Speaker 4: and isn't persable. So I think for states that have

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Speaker 4: actual provisions that expressly address cherry mandering, that might include

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Speaker 4: New York or Florida or Ohio now and I think Michigan.

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Speaker 4: I think this confirms that those are valid. I think

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Speaker 4: the trickier cases will be ones that states, like the

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Speaker 4: old North Carolina position or what the Pennsylvania Supreme Court

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Speaker 4: has done, has to read into general language talking about

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Speaker 4: free and fair elections a restriction on cherry mandering.

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Speaker 1: In the recent past, this court has significantly cut back

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Speaker 1: on the Voting Rights Act with the Chief Justice at

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Speaker 1: the helm, but this month we saw it gave an

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Speaker 1: unexpected boost to the Voting Rights Act with Chief Justice

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Speaker 1: John Roberts surprise, surprise in the majority. What do you

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Speaker 1: think is happening on the court. Is it a question

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Speaker 1: of the disapproval of the Court. I mean, it's it

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Speaker 1: seems like a reverse for Justice Roberts.

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Speaker 4: Well, I think the case you're referring to Alan versus

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Speaker 4: Milligan coming out of Alabama. Yes, it was I think

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Speaker 4: a big surprise to a voting rights advocates and a

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Speaker 4: pleasant surprise in that case. But in some sense it

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Speaker 4: was I call it a small c conservative decision in

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Speaker 4: that the court basically sustained the status quo. It sustained

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Speaker 4: existing rules for interpreting the Voting Right Seck. It affirmed

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Speaker 4: the decision of a three judge panel coming out of

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Speaker 4: Alabama that Alabama's districting was discriminatory. In effect, Alabama was

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Speaker 4: challenging that, and Alabama was presenting a kind of radical

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Speaker 4: theory which would have significantly undermined forty years worth of

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Speaker 4: interpretations of a voting rights act. So although it was

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Speaker 4: surprisingly protective of the voting Right seck, it was, as

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Speaker 4: I say, small sea conservative was more or less saying

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Speaker 4: we're going to stick with the status quo. We're going

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Speaker 4: to stick with the presidents that we've been following since

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Speaker 4: the nineteen eighties. I mean it was an important case.

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Speaker 4: I mean not to minimize it, because it has implications

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Speaker 4: for districting in Alabama and in Louisiana and possibly in

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Speaker 4: a few other states. And so it is likely that

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Speaker 4: seats some changes in congressions certainly in Alabama that's likely

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Speaker 4: to be a new congressional district created, and possibly in Louisiana.

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Speaker 4: The Supreme Court just this week, relying on the Alabama case,

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Speaker 4: rejected an effort by Louisiana to challenge the decision of

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Speaker 4: a district federal court in Louisiana, saying that there's discrimination

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Speaker 4: in Louisiana's districting.

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Speaker 1: Am I reading too much into it that Brett Kavanaughs

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Speaker 1: is drifting toward the middle?

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Speaker 4: I think in this one he is, But he did

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Speaker 4: make a point. I mean, the Chief Justice's opinion is

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Speaker 4: largely one that defends a judicial review by state supreme courts,

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Speaker 4: and at the end says, but you know, we don't

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Speaker 4: give them free reign. There could be cases that go

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Speaker 4: too far. This does involve the federal Constitution. We have

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Speaker 4: a role to play, and I think Kavanaugh and act

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Speaker 4: wrote a current opinion that largely restates that. But I

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Speaker 4: think you can see it as underscoring it, and maybe

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Speaker 4: Yankee the opinion a little bit more towards I don't

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Speaker 4: if I cult the right a little bit more towards

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Speaker 4: emphasizing the role of federal courts in reviewing state court

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Speaker 4: determinations that involved federal elections, so you know, at least

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Speaker 4: in this area, he may be you know, the middle Justice.

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Speaker 1: Have the Justices taken up any cases for next term

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Speaker 1: involving elections voting?

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Speaker 4: There is one coming out of South Carolina, again involving

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Speaker 4: the issues of race and congressional districting. And actually that's

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Speaker 4: going to be an interesting case because it's really about

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Speaker 4: the mix of race and party, and it basically involves

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Speaker 4: the redrawing of the district that's in the greater Charleston

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Speaker 4: area to make it more Republican. Essentially, it's a district

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Speaker 4: which I think has gone back and forth in recent years,

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Speaker 4: whereas the Democrat elected in twenty eighteen Republican elected in

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Speaker 4: twenty twenty and twenty two, and the captionline of legislature

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Speaker 4: redistricted in a way that made it somewhat more Republican,

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Speaker 4: mostly by moving, in effect, a lot of black voters

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Speaker 4: out of the district. And so it's been challenged as

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Speaker 4: racial discrimination, so kind of a racial cherrymander, which the

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Speaker 4: lower court found that it was. But I think Alabama

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Speaker 4: is appealing in one of the questions is if the

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Speaker 4: court has struggled with before is how to disentangle partisan jerrymandering,

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Speaker 4: which is not illegal, from racial cherrymandering, which is Thanks.

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Speaker 1: For those insights, rich That's Professor Richard Brufalt of Columbia

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Speaker 1: Law School, And that's it for this edition of The

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