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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcast. Texas won't have

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Speaker 1: to get federal approval before making changes to its voter

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Speaker 1: maps despite finding that Texas had engaged in racial gerryman

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Speaker 1: during thanks to an Appeals Courts decision, a ruling based

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Speaker 1: on a recent Supreme Court case, Texas had been under

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Speaker 1: preclearance for more than thirty years before another Supreme Court

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Speaker 1: ruling in joining me as Richard Brafald, professor of Election

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Speaker 1: law at Columbia Law School, so rich Texas was at

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Speaker 1: risk of being the first state pushed back under federal

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Speaker 1: electoral oversight. It's a process known as preclearance. Will you

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Speaker 1: start us off by explaining just what preclearance means? Sure?

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Speaker 1: Preclearance is the idea that before a jurisdiction like a

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Speaker 1: state or city or a county, can change its election laws,

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Speaker 1: it has to get a prior approval, either from the

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Speaker 1: Department of Justice, New Washington or from a federal District Court,

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Speaker 1: and the idea is that there are some jurisdictions, because

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Speaker 1: of their past records of discrimination that are sufficiently problematic

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Speaker 1: that instead of going through the normal process of a

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Speaker 1: jurisdiction passing a law and then getting challenge and the

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Speaker 1: burden being on the challenger to show us discriminatory, this

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Speaker 1: reverses that this requires prior approval preclearance by Goodman Agency

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Speaker 1: before the law could go into effect. So, in the

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Speaker 1: opinion at the Fifth Circuit, Judge Xavier Rodriguez said, the

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Speaker 1: Court has grave concerns about texas past conduct and decided

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Speaker 1: things like the recent enactment of a voter i D rule,

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Speaker 1: a recent voter purge attempt. So why didn't the court

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Speaker 1: put Texas under federal oversight? Then the Court basically said

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Speaker 1: that this is an extraordinary remedy and although Texas has

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Speaker 1: done some bad stuff, has been found to engaging discrimination

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Speaker 1: behavior in its redistricting. In eleven, there were some allegations

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Speaker 1: that some courts supported of some discriminatory behavior in its

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Speaker 1: voter ide law. It wasn't enough, as the Court pointed out,

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Speaker 1: for a long time there was a federal statute that

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Speaker 1: put certain jurisdictions under preclearance for all purposes, all voting

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Speaker 1: law change purposes. The Supreme Court, in the case called

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Speaker 1: Shelby County a few years ago, said that went too far,

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Speaker 1: that it's too much of a challenge to our system

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Speaker 1: of federalism to have these jurisdictions, which were first sort

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Speaker 1: of singled out in the nineties, sixties and seventies, continue

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Speaker 1: to be under this special oversight. They left in place

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Speaker 1: a part of the law that says you can have

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Speaker 1: a targeted inclusion of the jurisdiction some nice called bail

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Speaker 1: in that on a judicial finding, the particular jurisdictions could

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Speaker 1: be subject to federal oversight for particular kinds of voting

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Speaker 1: law changes. But even then, this this Texas court said,

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Speaker 1: following some other courts, it's an extraordinary remedy. You have

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Speaker 1: to have really a lot of evidence that the jurisdiction

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Speaker 1: is liking to continue engage in discriminatory behavi here. And

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Speaker 1: they said no, in fact, we're watching you. We'll see

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Speaker 1: what happens next time. But we didn't think there was

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Speaker 1: enough there to justify this extraordinary remedy. The judge did

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Speaker 1: warrant that Texas will likely continue to engage in quote

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Speaker 1: ingenious defiance of the constitution that necessitated the preclearance system

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Speaker 1: in the first place. You know, the expressed the real steer.

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Speaker 1: I mean, the courts's some interesting things. They pointed out

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Speaker 1: that jurisdictions are most likely to engage in discriminatory behavior

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Speaker 1: when the dominant group feels that its control is being threatened,

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Speaker 1: and because of rapid population growth in Texas, particularly among

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Speaker 1: the minority groups Latinos in particular, the white majority and

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Speaker 1: legislatures likely are feeling under more pressure than ever. So

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Speaker 1: it's kind of a prediction that the same kinds of

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Speaker 1: discriminary behavior that has in the past will occur again.

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Speaker 1: But the Court said nonetheless, will wait to see what happens,

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Speaker 1: and we hope you won't. Did the Supreme Court's recent

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Speaker 1: opinion about partisan gerrymandering have any effect year? It may

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Speaker 1: have an effect down the road. One of the problems

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Speaker 1: in this area is distinguishing the partisan manipulation from racial

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Speaker 1: manipulation or racial gerrymandering, because in so many parts of

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Speaker 1: the country, race and party are closely intertwined. The Supreme

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Speaker 1: Court has said that racial gerrymandering is unconstitutional, but as

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Speaker 1: you just pointed out, that the partisan jerry mannering is not,

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Speaker 1: and so often in many of these cases it's difficult

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Speaker 1: to separate out which of this is racial discrimination, which

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Speaker 1: of this is partisan discrimination. Of course, have generally said

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Speaker 1: that racial discrimination, even if it's done for partisan goals,

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Speaker 1: is still racial discrimination. The issues will be intertwined. So

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Speaker 1: how important is this Fifth Circuit ruling to elections going

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Speaker 1: forward and perhaps to the results of Basically from the moment,

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Speaker 1: it means that nothing changes, but Supreme Court did blessed

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Speaker 1: Texas's most recent plans. So Texas passed a plan in

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Speaker 1: twenty eleven which was found to be discriminatory. They then

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Speaker 1: passed a new plan in which looked a like the

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Speaker 1: old primate, had some changes. That was challenge and the

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Speaker 1: lower courts found at discriminatory, but the Supreme Court ultimately

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Speaker 1: upheld it in a case last year. So that plan

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Speaker 1: will be used in the elections, and then they'll be

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Speaker 1: after the census. There'll be uh, you know, changes to

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Speaker 1: Texas maps, probably in one going to the election, and

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Speaker 1: that's when this issue will come up again. Both their

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Speaker 1: congressional map and their state legislative map will be based

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Speaker 1: on actions the state legislature takes in one and maybe two.

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Speaker 1: The minority rights activists are likely to appeal this to

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Speaker 1: the Supreme Court. As you mentioned, this has been in

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Speaker 1: some form or another up at the Supreme Court twice already.

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Speaker 1: Will the Court have to take it again? And is

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Speaker 1: it likely to do anything with it? I think on

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Speaker 1: this particular issue of whether or not or remedy there

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Speaker 1: was what this stallien or preclearances is an extraordinary remedy,

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Speaker 1: I think it's unlikely Supreme Court would take this, at

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Speaker 1: least on the merits, because in fact, this remedy has

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Speaker 1: very rarely been imposed. It us imposed on a state

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Speaker 1: in the ninety nineties on Arkansas for limited purposes, and

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Speaker 1: more recently it's been imposed on a couple of local governments.

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Speaker 1: But it's very rarely imposed. And I think this particular

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Speaker 1: three judge court did have some efftable discretion as to

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Speaker 1: whether or not they thought it was appropriate. So it's

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Speaker 1: the state gain more than four million new residents, more

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Speaker 1: Hispanic but state lawmakers didn't create any new voting districts

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Speaker 1: that favored the election of minority politicians. So just tell

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Speaker 1: us in less than a minute, what does a state

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Speaker 1: have to do to comply with the rules and regulations. Well,

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Speaker 1: they have to make sure that the districts are of

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Speaker 1: equal population. That we know. They also have to avoid

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Speaker 1: what's called vote diolution, which is reducing the ability of

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Speaker 1: minorities to elect, but of course the ability of manorits

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Speaker 1: to elect is also going to be contested going in.

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Speaker 1: They siently have to avoid intentional discrimination. And what happened

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Speaker 1: in Texas is that the twenty living Plan was struck

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Speaker 1: down for that. But other than that, as the Supreme

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Speaker 1: Court tells us after the rush of the partisan juryman

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Speaker 1: ring cases, this is still primarily a matter for state

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Speaker 1: legislatures to do. So they have a certain amount of

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Speaker 1: discretion as to how they control their lines. A big

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Speaker 1: issue that may be coming up is who do you

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Speaker 1: try and equalize, and that may be something for a

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Speaker 1: Huger discussion. It's always been the case that they've had

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Speaker 1: equalized total population. One of the issues that's being raised

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Speaker 1: out there, particularly on the Republican side, is whether they

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Speaker 1: can focus on citizen population rather than total population. Thanks

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Speaker 1: so much. That's Richard Brafald, He's professor at Columbia Law School.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg Ye