Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: I don't think we can assume that just because race
Speaker 1: is taken into account, that that necessarily creates an equal
Speaker 1: protection problem. At issue is whether Alabama violated the Voting
Speaker 1: Rights Act by drawing its congressional map in a way
Speaker 1: that ensures the state will have just one black representative
Speaker 1: for the next decade. And Justice Katangi Brown Jackson pushed
Speaker 1: back on the suggestion that redistricting needs to be done
Speaker 1: in a race neutral way, pointing out that the Framers
Speaker 1: adopted the post Civil War amendments to the Constitution in
Speaker 1: a race conscious way. They were, in fact, trying to
Speaker 1: ensure that people who had been discriminated against the freedmen
Speaker 1: um in during the reconstructed construction period were actually uh
Speaker 1: brought equal to everyone else in the society. Joining me
Speaker 1: is elections law expert Richard Hassan, a professor at u
Speaker 1: c l A Law School. So, Rick, Alabama is black,
Speaker 1: but the Republican legislature drew only one majority black voting
Speaker 1: district out of seven, and a three judge panel said
Speaker 1: Alabama was probably violating the Voting Rights Act. So what's
Speaker 1: the issue here. So the Voting Rights Act requires that
Speaker 1: under certain conditions. Basically, when there are large populations of
Speaker 1: minority voters and white voters, minority voters tend to vote
Speaker 1: for different candidates, it's possible that the Voting Rights Act
Speaker 1: requires the drawing of a district to give those minority
Speaker 1: voters a chance to get representation. In the Alabama case,
Speaker 1: a three judge court held that although Alabama had one
Speaker 1: congressional district where minority voters could elect a candidate of choice,
Speaker 1: they were entitled to a second one given the size
Speaker 1: of their population. Where the population was and the continued
Speaker 1: racially polarized voting in the state of Alabama. The fact
Speaker 1: that the Supreme Court stepped in and a lot Alabama
Speaker 1: to keep its map for the primaries, Justice Kagan called
Speaker 1: it clear vote delution. Do you see that as the
Speaker 1: Court tipping its hand here? Well, back when the Court
Speaker 1: decided to put this ruling on hold, that was a
Speaker 1: pretty good indication that a majority of the Court's justices
Speaker 1: thought that Alabama was likely to win. In fact, Chief
Speaker 1: Justice Roberts, who is not always the most friendly to
Speaker 1: voting rights plaintiffs, dissented from that order. Back last spring
Speaker 1: because he said it under existing lot looks like Alabama
Speaker 1: should win. So the question really is whether or not
Speaker 1: the Court is ready to tweak or more radically change
Speaker 1: understanding of how the Voting Rights Act works if it
Speaker 1: does so in this case. Depending on how it does so,
Speaker 1: we could have small implications or very large applications for
Speaker 1: minority representation in the Congress as well as in state
Speaker 1: local legislatures. What was the main focus of the oral arguments, Well,
Speaker 1: Alabama advanced a number of different arguments. Their most radical
Speaker 1: argument would essentially rework section to the Voting Rights Act,
Speaker 1: and there was little appetite on the Court for issuing
Speaker 1: an opinion that would overturn decades of precedent and have
Speaker 1: a whole new approach to the Voting Rights Act. But
Speaker 1: there was much more interest, at least among some of
Speaker 1: the conservative justices, especially Justice Alito, in tweaking the existing
Speaker 1: standards in a way that would make it look like
Speaker 1: the Court is continuing with its application of existing law,
Speaker 1: but actually changes the standards enough to make it easier
Speaker 1: for states to win and harder for minority voters to win.
Speaker 1: The real question is whether or not the other justices
Speaker 1: would be willing to go along with Justice Alito, Justice
Speaker 1: Jackson seemed to dominate the arguments well. Justice Jackson, even
Speaker 1: though this was only her second day of oral arguments
Speaker 1: of the Supreme Court, came out of the box very
Speaker 1: well prepared and extremely aggressive encountering with Justice Alito was
Speaker 1: trying to do so. Justice Dealto was trying to find
Speaker 1: a way to re interpret the standards that apply to
Speaker 1: Section two, and Justice Jackson's main point was that Justice
Speaker 1: the Leader's approach is inconsistent with the text of Section two,
Speaker 1: it's inconsistent with the precedent that's applied section two, and
Speaker 1: there's no constitutional reasons. I thought it was particularly notable
Speaker 1: that on the constitutional point, Justice Jackson went back to
Speaker 1: the original understanding of the Reconstruction Amendments, the thirteen sporteen,
Speaker 1: the fifteen Monuments, which provide the basis for Congress to
Speaker 1: act to pass the Voting Rights Accident. I saw that
Speaker 1: as an appeal to some of the justices who are
Speaker 1: originalists on the Court care about the original meaning, and
Speaker 1: what she was trying to argue is that the Voting
Speaker 1: Rights Act as it's been understood, it's very much in
Speaker 1: line with what those who passed the Fourteenth Amendment thought
Speaker 1: could happen, which is that there could be race conscious
Speaker 1: laws that could be passed to provide protection for members
Speaker 1: of our society who faced past discrimination. What about some
Speaker 1: of the conservatives that might be closer to the middle
Speaker 1: of the court. Did they propose anything afferent a different solution?
Speaker 1: Did they seem to agree with Justice Alito or Justice Jackson. So,
Speaker 1: both Justice Kavanaugh and Justice Barrett mostly asked clarifying questions
Speaker 1: in order to understand what it was exactly that Alabama
Speaker 1: was arguing. What was the plaintiffs were contending has to
Speaker 1: be done under the existing law. They didn't really tip
Speaker 1: their hand very much. But I'm reminded of the oral
Speaker 1: argument in a case called Bernovich, which the Supreme Court
Speaker 1: decided a year ago last July. During ther arguments of
Speaker 1: that case, which also involved the same statute section to
Speaker 1: the Voting Rights Act, but not in the redictioning context
Speaker 1: at our argument, both of those justices seem kind of
Speaker 1: open to arguments on both sides, but in the end
Speaker 1: they colalesced behind Justice Alito's opinion, which was a very
Speaker 1: hostile opinions to voting rights litis. And so if that
Speaker 1: pattern holes. This time, we're likely to see a significant
Speaker 1: weakening of the Voting Rights Act. Now nothing is set
Speaker 1: in stone. You really can't predict anything from oral argument
Speaker 1: questions with any kind of certainty. They seem to open minded,
Speaker 1: but it's not clear that that open mindness will prevail
Speaker 1: by the time the case gets decided sometime later this
Speaker 1: year or more likely next year. Did Justice Thomas say
Speaker 1: anything of noteworthy? Justice Thomas asked a few questions. Justice course,
Speaker 1: that didn't. They've both taken the point of view that
Speaker 1: the Voting Rights Act Section two, as a matter of
Speaker 1: statutory interpretations, does not even apply to redistricting, and so
Speaker 1: they are not likely to be vote to uh side
Speaker 1: with the plaintiffs, and saying that this a voting rights
Speaker 1: relations here and the chief the fact that he joined
Speaker 1: the liberals in dissent on the shadow docket case, does
Speaker 1: that indicate he might side with the liberals again here? Well,
Speaker 1: what he said was I think that under existing law
Speaker 1: the plaintiffs should win, but I'm open to rethinking existing law.
Speaker 1: So I don't think we can read all that much
Speaker 1: into it from his vote in the stay question earlier
Speaker 1: this year. You refer to it over the last decade,
Speaker 1: the Supreme Court has already weakened the Voting Rights Act.
Speaker 1: So is there any chance that this case will be
Speaker 1: different or will they just continue on the road they've
Speaker 1: been on. So there is certainly a history of the
Speaker 1: Court being hostile to the Voting Rights Act. There was
Speaker 1: the two thousand and thirteen case Shelby County versus Holder
Speaker 1: that essentially killed off a major provision of Voting Rights
Speaker 1: Act known as Section five. There was the Burnovitch case
Speaker 1: that held the Section two doesn't have a lot of
Speaker 1: teeth outside of the resisting context. Also some other decisions,
Speaker 1: including the decision a few years ago written by Justice
Speaker 1: Alito called Abbott first Paris Case out of Texas, which
Speaker 1: also weakened the understanding the Voting Rights Act. So if
Speaker 1: that pattern holds up, I don't think it's going to
Speaker 1: be good news for minority voters. I think the real
Speaker 1: question is not there's a good chance that planeiffs lose.
Speaker 1: We already know from them taking the case and issuing
Speaker 1: a stay that that's likely to happen. It's how they
Speaker 1: lose and how bad it's going to be. The three
Speaker 1: judge District Court ruling that agreed that Alabama's mapped likely
Speaker 1: violated the Voting Rights Act? Did that court follow precedent?
Speaker 1: And you know, was its decision in line with prior cases?
Speaker 1: I think that decision very much followed precedent. In fact,
Speaker 1: Chief Justice Roberts, in dissenting from the courts issuing of
Speaker 1: a stay less spring, said that much. I think it's
Speaker 1: notable that the panel, the three judge courts. Two of
Speaker 1: the judges on that court were appointed by President Trump.
Speaker 1: So this is not, you know, a panel made up
Speaker 1: of Democratic appointed judges who might have a different viewpoint
Speaker 1: on the reading of the Act than say, the conservaive
Speaker 1: justices on the Supreme Court. Really, the question is not
Speaker 1: whether or not the planeffs win under existing precedent. I
Speaker 1: think that's an easy that they do. The question is
Speaker 1: whether the Court's going to change the standard. I want
Speaker 1: to get your take on another redistricting case the Court
Speaker 1: is going to be hearing later in the term. It
Speaker 1: involves the North Carolina map, and it will test the
Speaker 1: power of state courts to invalidate congressional maps as two
Speaker 1: partisan with this controversial doctrine called the independent state legislature doctrine,
Speaker 1: and some elections law experts say that if the Court
Speaker 1: adopts that doctrine, it could rerea havoc on elections across
Speaker 1: the country. I'm actually filing an AMIKS brief in the case,
Speaker 1: so I think that if the Court adopts the kind
Speaker 1: of expansive arguments that the planeffs have made in that case,
Speaker 1: it is going to vastly increase the amount of election
Speaker 1: litigation in courts. It's going to give every state court
Speaker 1: decision interpreting a state election law that supplies in the
Speaker 1: federal election, and every state and local agency decision applied
Speaker 1: to a federal election a chance to become a federal
Speaker 1: lawsuit that could potentially pitch federal courts against state courts.
Speaker 1: And I think ultimately, if the Court rules the way
Speaker 1: that the Republican legislators want in the North Carolina case,
Speaker 1: that it's going to undermine voter confidence in both the
Speaker 1: electoral process and in the courts. Thanks so much for
Speaker 1: your insights, Rick, that's Professor Richard Hassan of u c
Speaker 1: l A Law School. Will your argument next in case
Speaker 1: Oriyano versus McDonough, Mr Barney, Thank you, missr Chief Justice,
Speaker 1: and man it please the Court. And with that James
Speaker 1: Barney made his debut at the Supreme Court, a former
Speaker 1: Naval officer, arguing on behalf of fellow veteran Adolpho Ariano,
Speaker 1: who suffers from severe mental health conditions, including PTSD, following
Speaker 1: an aircraft carrier collision. They're challenging an appellate court ruling
Speaker 1: that said the veteran can't get around the one year
Speaker 1: deadline for filing for retroactive benefits, and James Barney joins me, Now, James,
Speaker 1: tell us about your client. Sure, My client is Adolfo Ariano.
Speaker 1: He was a Navy veteran who served aboard an aircraft
Speaker 1: carrier back in the late seventies and suffered very traumatic
Speaker 1: event when that aircraft carrier collided with a freighter. He
Speaker 1: was nearly swept overboard. He was working on the flight deck,
Speaker 1: observed several of his shipmates being injured and killed, and
Speaker 1: when he was discharged from the Navy a year or
Speaker 1: so later, he really had some traumatic disabilities because of that,
Speaker 1: and that really is the focus of our case. He
Speaker 1: was lucky in the sense that his brother was able
Speaker 1: to eventually take over his affairs, in other words, become
Speaker 1: his guardian, and it really was his brother that was
Speaker 1: able to get Mr. Ariana to file a claim for
Speaker 1: his disabilities with the v A. But unfortunately, by the
Speaker 1: time he did so, many years had passed and Mr.
Speaker 1: Ariana had already been suffering from these very severe mental disabilities.
Speaker 1: And does this happen often that a veteran, you know,
Speaker 1: misses the time when he or she can file. Don't
Speaker 1: the services tell you what you have to do is
Speaker 1: you leave? Yes, But unfortunately that doesn't always happen. When
Speaker 1: veterans leave the service, it's a very tumultuous time in
Speaker 1: their lives. Some of these veterans have really known nothing
Speaker 1: else in their adult lives other than the military, and
Speaker 1: so it becomes their community, it becomes their life, and
Speaker 1: leaving the military, even if you don't have disabilities, leaving
Speaker 1: the military is a very tumultuous and sometimes somewhat traumatic
Speaker 1: process as you're trying to make that transition to civilian life.
Speaker 1: If you add into that a veteran who's suffering from
Speaker 1: very significant injuries, so we're talking about traumatic brain injuries,
Speaker 1: we're talking about PTSD. Unfortunately, only there's a number of
Speaker 1: veterans who suffer from the effects of what they call
Speaker 1: military sexual trauma, and these can be debilitating and so
Speaker 1: on top of this tumultuous life change that's taking place,
Speaker 1: they're suffering from these disabilities. And does the v A
Speaker 1: always tell the veteran all of the things they need
Speaker 1: to do to file for benefits they're supposed to, But
Speaker 1: I don't think it happens all the time, or if
Speaker 1: it does happen, it happens in such a flurry of
Speaker 1: other activity that the veteran doesn't really understand what's happening.
Speaker 1: The veterans are not represented by counsel at this point,
Speaker 1: so they're religious on their own, and unfortunately many of
Speaker 1: them do miss this one year filing deadline. That's an
Speaker 1: issue in this case. The Circuit court ruled against your client.
Speaker 1: Why do you think the Supreme Court took your case?
Speaker 1: Is it a good sign that perhaps they want to
Speaker 1: reverse the Circuit Court? Well, I think so. I think
Speaker 1: they took the case because it's an important issue. It
Speaker 1: really has to do with fairness. There was a case
Speaker 1: about thirty years ago called Irwin, and what the Irwin
Speaker 1: case held, this is a Supreme Court case, was that
Speaker 1: people who have claims against the government, like benefits claims,
Speaker 1: should be treated the same way as litigants in private
Speaker 1: litigation with respect to this issue of whether you can
Speaker 1: equitably toll or, in other words, forgive a missed deadline.
Speaker 1: Most people in civil litigation who have a claim against
Speaker 1: the private party, if they miss a deadline, they can
Speaker 1: actually request it to be told. And what the Supreme
Speaker 1: Court said in Irwin was there should be no difference
Speaker 1: between that and when a person is suing the government
Speaker 1: or seeking a claim against the government. And yet despite that,
Speaker 1: the Federal Circuit had for many years ruled that veterans
Speaker 1: simply are not able to take advantage of that. They
Speaker 1: basically said, veterans are somehow different, and we did not
Speaker 1: think that was fair. At the Supreme Court Oral arguments,
Speaker 1: What was the toughest question you've got, uh, The one
Speaker 1: that I wasn't quite prepared for. Was Justice Jackson asked
Speaker 1: me a question about statutes of limitations and to use
Speaker 1: an analogy. In her view that status of limitations were
Speaker 1: sort of like funnel And I was struggling a little
Speaker 1: bit with that analogy, but I got through it, and
Speaker 1: I think I answered her question in a way that
Speaker 1: satisfied her. Other than that, most of the questions we
Speaker 1: expected there are difficult legal issues here, and so some
Speaker 1: of these questions got far into the weeds of doctrines
Speaker 1: like equitable tolling and so forth. But most of them
Speaker 1: I felt were expected, and I thought I was able
Speaker 1: to answer them satisfactorily. So the government isn't even conceding
Speaker 1: that this is a statute of limitations. Uh. The Solicitor
Speaker 1: General argued, this statute it doesn't walk or quack like
Speaker 1: a statute of limitations, and it doesn't function as one either.
Speaker 1: Is that the toughest part of your argument? Well, I
Speaker 1: don't think so. Um. I thought that was the easiest
Speaker 1: part of our argument. I think this is very clearly
Speaker 1: a statute of limitations. And I don't think that Justice
Speaker 1: Kagan really appreciated that particular answer, because she pushed back
Speaker 1: on the government on that point. The issue here is
Speaker 1: Congress has stepped forth a one year's time limit in
Speaker 1: order to qual A five for these retroactive disability benefits,
Speaker 1: and I don't think it's a stretch to say that
Speaker 1: that operates like a statued limitations. The Chief Justice pointed
Speaker 1: out that this is an agency, the v A, that
Speaker 1: supports disabled veterans and not an agency with rigid rules
Speaker 1: like the I R S. Does that give you hope?
Speaker 1: It does give me hope. And the Chief Justice was
Speaker 1: exactly correct there. This doctrine of equitable tolling, believe it
Speaker 1: or not, has actually been applied to allow the I
Speaker 1: R S to benefit from this doctrine of equitable tolling
Speaker 1: in order to extend or to forgive deadlines that they missed.
Speaker 1: And it would be an odd result to think that
Speaker 1: the I R S can benefit from this equitable principle,
Speaker 1: and yet service disabled veterans cannot. And I think that
Speaker 1: was the point that Justice Robertson was getting to. You've
Speaker 1: done many appellate arguments before, never before the Supreme Court.
Speaker 1: How different was it? Was it different? Well, it was
Speaker 1: certainly a new experience and humbling experience, I must say,
Speaker 1: to some extent, it's not different. I've done arguments in
Speaker 1: front of the Federal Circuit, which is also a very
Speaker 1: impressive group of judges who asked very tough questions. I've
Speaker 1: even done on bank arguments in front of the Federal Circuit,
Speaker 1: including the one that preceded this Supreme Court petition. And
Speaker 1: there you're dealing with twelve judges and so in one sense,
Speaker 1: going from twelve to nine is a little a little
Speaker 1: bit easier. But the Supreme Court is is really just special,
Speaker 1: and uh, it's just hard not to feel awed by
Speaker 1: the experience. Did you get a feel for how the
Speaker 1: court might rule? Which justices were clearly for you, which
Speaker 1: against I've learned over the years never to try to
Speaker 1: predict how the how a court is going to rule.
Speaker 1: I thought the questions that that I received were fair.
Speaker 1: They were the types of questions that I was expecting
Speaker 1: to get. Some of them were tough questions, but I
Speaker 1: think we had answers to all of them. I felt
Speaker 1: that they were also tough on the government, and I
Speaker 1: didn't think that all of the Secretary's answers to their
Speaker 1: questions were sat a factory. He didn't have a good
Speaker 1: answer for Justice Robert's question about why we should be
Speaker 1: so strict in interpreting these rules in a in a
Speaker 1: statute that is there to benefit disabled veterans, and also
Speaker 1: did not have a good answer when Justice Alito asked
Speaker 1: about this group called the Edgewood Veterans, and that's a
Speaker 1: group of veterans that has a very, very compelling claim
Speaker 1: that their misdeadlines should be forgiven. And I don't think
Speaker 1: the government's answer there was very satisfactory. Does it seem
Speaker 1: strange to you that the government, you know, in this
Speaker 1: age where veterans are so much at the forefront and
Speaker 1: concerns about veterans, that the government would take this stance,
Speaker 1: even I'm not surprised, you know, to be fair, the
Speaker 1: government and one of the things the government is looking
Speaker 1: out for is that there is not a floodgate problem.
Speaker 1: In other words, that if we if we allow this
Speaker 1: type of tolling of these deadlines, these statutes, limitations they
Speaker 1: have to be concerned with, are we going to create
Speaker 1: a situation where the amount of payments that we have
Speaker 1: to pay out to these veterans really exceeds the amount
Speaker 1: that Congress is authorized. And that actually did come up
Speaker 1: at the argument, and I was able to explain, I
Speaker 1: think to their satisfaction that we don't think this will
Speaker 1: cause a floodgate problem. The type of tolling that we're
Speaker 1: asking for here, which is called equitable tolling, is only
Speaker 1: used sparingly. It's not something that's going to apply to
Speaker 1: every single case. But when it does apply, in other words,
Speaker 1: when you have a veteran or really any individual who
Speaker 1: truly does have a good reason why they missed the deadline, well,
Speaker 1: then it ought to be available, and it should be
Speaker 1: available to veterans in exactly the same way that it's
Speaker 1: available to private litigans in private litigation. So basically, what
Speaker 1: you want is for veterans to have the same advantages
Speaker 1: that civil litigans have exactly. Let's say the Supreme Court
Speaker 1: turns you down, is going to Congress and alternative, Yes,
Speaker 1: that's always an alternative. Obviously that is a difficult path, um,
Speaker 1: but certainly, um, it would be an alternative to lobby
Speaker 1: Congress to make an explicit change in the law to
Speaker 1: reflect this equitable tolling doctrine. But we really don't think
Speaker 1: that should be necessary because the decision in Irwin again,
Speaker 1: which is going back to all the way back, really
Speaker 1: answers the question and the answer is that these sorts
Speaker 1: of ordinary claims processing deadlines should be deemed tollable in
Speaker 1: extenuating you know, in special circumstances. Are there implications for
Speaker 1: veterans beyond this issue if you win this case, well,
Speaker 1: certainly there's going to be a group of veterans who
Speaker 1: have current claims where they have asked for the equitable tolling.
Speaker 1: I mentioned the Edgewood Veterans are are one group of veterans,
Speaker 1: and so one immediate impact would be that they would
Speaker 1: now be able to go back and argue for equitable tolling,
Speaker 1: which right now they're not allowed to do because of
Speaker 1: these previous federal circuit rulings. The other effect that will
Speaker 1: have is for future of terans, you know, in other words,
Speaker 1: veterans who maybe are still in the military and we'll
Speaker 1: be getting out in the future, and those veterans will
Speaker 1: be able to benefit from equitable tolling if they have
Speaker 1: some of these extenuating circumstances and they have really good
Speaker 1: cause to extend that deadline. I just want to say
Speaker 1: that we had a lot of help along the way,
Speaker 1: and we were very grateful to receive amicist supports from
Speaker 1: a lot of veterans groups as well as a A
Speaker 1: r P and and many other organizations that really did
Speaker 1: a fantastic job supporting us as we moved this case
Speaker 1: along to the Supreme Court. Was your client at the
Speaker 1: oral arguments? He was not, but I had a call
Speaker 1: with his brother immediately afterwards, and his brother was very
Speaker 1: pleased with how it went and we all have our
Speaker 1: fingers crossed. Thanks so much for sharing your experience with us.
Speaker 1: That's James Barney, a partner at Fitnigain. And that's it
Speaker 1: for this edition of The Bloomberg Law Show. Remember you
Speaker 1: can always get the latest legal news on our Bloomberg
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Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg