WEBVTT - Justices Split on Race in Redistricting 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.840 --> 0:00:11.240 We're in the business of complying with federal court decisions, 0:00:11.520 --> 0:00:13.240 and when they told us that we needed to draw 0:00:13.280 --> 0:00:15.760 a second majority black district, that's what we did. 0:00:16.000 --> 0:00:20.279 That's how Louisiana Solicitor General Ben Aguinyaga summed up his 0:00:20.440 --> 0:00:24.280 state's position in the challenge to its congressional map at 0:00:24.280 --> 0:00:28.000 the Supreme Court. It's a case that involves the interplay 0:00:28.040 --> 0:00:32.440 between race and politics in drawing political boundaries, and the 0:00:32.560 --> 0:00:35.839 oral argument signaled a deep divide over the use of 0:00:35.960 --> 0:00:39.559 race in redistricting. At issue is the map drawn by 0:00:39.680 --> 0:00:45.360 Republicans to simultaneously create a new majority black district as 0:00:45.440 --> 0:00:50.519 required by a court order and protect incumbent Republicans, including 0:00:50.520 --> 0:00:54.520 House Speaker Mike Johnson, and the justices seemed divided over 0:00:54.560 --> 0:00:58.360 the question of whether race was the predominant factor driving 0:00:58.400 --> 0:01:01.440 the new map. Chief Justice John Roberts called the new 0:01:01.440 --> 0:01:04.240 district a snake that runs from one end of the 0:01:04.319 --> 0:01:05.360 state to the other. 0:01:06.040 --> 0:01:08.039 And you think the drawing of this district was not 0:01:08.120 --> 0:01:11.160 predominantly based on race. I think that it runs from 0:01:11.200 --> 0:01:13.080 one side of the state angling up to the other 0:01:13.160 --> 0:01:16.200 picking up popular black populations as it goes along. 0:01:16.600 --> 0:01:20.920 But the three liberal justices suggested the district shape was 0:01:20.959 --> 0:01:25.120 a product of politics, something the Court has previously said 0:01:25.280 --> 0:01:29.120 is a permissible factor. Here's Justice Katanji Brown Jackson. 0:01:29.800 --> 0:01:32.240 Is the reason why we're looking at a snake like 0:01:32.440 --> 0:01:36.720 map rather than the compact map is because of political considerations. 0:01:36.800 --> 0:01:39.400 Politics is the only reason that the state shows that 0:01:39.480 --> 0:01:41.000 map over the compact maps. 0:01:41.280 --> 0:01:44.640 Joining me is elections law expert Richard Brefalt, a professor 0:01:44.640 --> 0:01:49.320 at Columbia Law School. Rich explained the issue before the justices. 0:01:49.560 --> 0:01:52.800 This is a very strange and unusual case. In order 0:01:52.840 --> 0:01:54.840 to discuss the issue, you actually have to go back 0:01:55.120 --> 0:01:57.920 to a prior case. And so a couple of years ago, 0:01:58.160 --> 0:02:02.200 lawsuit was brought in Louisiana by black voters claiming that 0:02:02.280 --> 0:02:06.640 the congressional map in Louisiana discriminated against black voters because 0:02:06.640 --> 0:02:10.440 they were underrepresented, that it had a discriminatory effect. Louisiana 0:02:10.480 --> 0:02:13.480 is something like one third black. The state has six 0:02:13.760 --> 0:02:17.000 congressional districts, but only one of them had a black majority. 0:02:17.240 --> 0:02:20.280 The plaintiffs said it was relatively easy to create a 0:02:20.440 --> 0:02:24.480 compact district that followed traditional districting patterns in part of 0:02:24.480 --> 0:02:26.960 the state that would create a second black majority district. 0:02:27.280 --> 0:02:29.640 They went to court and they won. They won a 0:02:29.720 --> 0:02:33.560 preliminary injunction. It was a five day trial, lots of exhibits, 0:02:33.639 --> 0:02:36.280 lots of witnesses. They wanted a district court, and that 0:02:36.360 --> 0:02:38.960 was subsequently affirmed by the Fifth Secret Court of Appeals, 0:02:39.120 --> 0:02:42.280 which is itself a pretty conservative court. The question happens 0:02:42.280 --> 0:02:44.440 what to do next, how to redraw the map. The 0:02:44.480 --> 0:02:47.120 plaintiffs had a map that they liked which would have 0:02:47.200 --> 0:02:50.680 created that second black majority district, but the usual rules 0:02:50.720 --> 0:02:53.560 to allow the legislature to crack at it and to 0:02:53.560 --> 0:02:55.560 see if they can do it in time. Otherwise a 0:02:55.680 --> 0:02:57.440 court will create a map. So this went to the 0:02:57.480 --> 0:03:00.359 Louisiana legislature and the governor said, we need to do 0:03:00.440 --> 0:03:02.880 a map. We would have liked to fight this case more, 0:03:03.440 --> 0:03:05.640 but we've already lost twice in the district court, in 0:03:05.680 --> 0:03:08.000 the Court if Appeals. We need to write our own 0:03:08.040 --> 0:03:10.520 map rather than having a court impostmon on us. When 0:03:10.520 --> 0:03:12.720 the legislatures sat down to draw a map, though, they 0:03:12.760 --> 0:03:16.679 had a problem because it's a Republican majority legislature, Republican 0:03:16.720 --> 0:03:20.920 governor Publican delegation and several of the Republican members of Congress, 0:03:20.919 --> 0:03:23.240 and Louisiana are very powerful, including the Speaker of the House, 0:03:23.560 --> 0:03:26.160 the majority leader, and somebody else they really liked, and 0:03:26.240 --> 0:03:29.919 so they decided the legislature in Louisiana that they would 0:03:29.960 --> 0:03:34.639 sacrifice one Republican district, but not the district that made 0:03:34.720 --> 0:03:38.560 sense in terms of the plaintiff's original lawsuit seeking a 0:03:38.600 --> 0:03:41.920 black majority district. They kind of cobbled together a new 0:03:42.000 --> 0:03:45.480 district that stretched across the state and got rid of 0:03:45.520 --> 0:03:48.880 a different white Republican congressman in order to preserve the 0:03:49.000 --> 0:03:52.560 districts of the Speaker, the majority leader, and a member 0:03:52.560 --> 0:03:55.280 of Congress who they favored. So this news district is 0:03:55.280 --> 0:03:58.840 a black majority district that comes out of this lawsuit. Now, 0:03:59.080 --> 0:04:02.520 some white plaintiffs have sued claiming that this district is 0:04:02.640 --> 0:04:08.200 unconstitutional because it's unconstitutionally race based, that is a racial gerrymander, 0:04:08.440 --> 0:04:11.000 that the decision to draw this district was primarily based 0:04:11.040 --> 0:04:13.640 on race, and the Supreme Court has for some time 0:04:13.680 --> 0:04:17.880 said that that's unconstitutional. The state is defending it, as 0:04:17.920 --> 0:04:21.599 are the original plaintiffs, the black voters, on the grounds 0:04:21.600 --> 0:04:26.040 that no it's not racially predominant. It's really politically predominant. 0:04:26.360 --> 0:04:30.120 The reason this district has this odd shape is not 0:04:30.240 --> 0:04:34.000 really because of race, but because the legislature wanted to 0:04:34.240 --> 0:04:38.719 basically protect Republican incumbents, and a different lower court than 0:04:38.760 --> 0:04:41.120 the one that heard the original case said, no, this 0:04:41.279 --> 0:04:44.839 is racial predominance. The only reason this district exists is 0:04:44.880 --> 0:04:47.919 to create a black majority district. And that's the argument 0:04:47.920 --> 0:04:50.200 before the Supreme Court, and it's a kind of an 0:04:50.240 --> 0:04:53.320 odd one. Supreme Court has said in the past that 0:04:53.360 --> 0:04:56.119 if something is drawn primarily to the basis of race 0:04:56.560 --> 0:04:59.840 and there's no other justification for it, then it may 0:04:59.839 --> 0:05:02.839 be constitutional the ncal protection clause. But if it's done 0:05:02.839 --> 0:05:06.400 primarily for party, that's parties in germymandering, and you can 0:05:06.560 --> 0:05:09.479 challenge that. And the question of whether something is based 0:05:09.520 --> 0:05:11.720 on race or on party has really been before the 0:05:11.760 --> 0:05:14.160 Court several times. But that's kind of what they have 0:05:14.279 --> 0:05:18.680 to decide here. Is this district primarily based on partisanship 0:05:19.080 --> 0:05:21.800 because that's why the legislature drew it the way they 0:05:21.839 --> 0:05:24.080 did it, Or is it based on race because they 0:05:24.080 --> 0:05:26.960 wouldn't have been drawing a new district at all but 0:05:27.240 --> 0:05:30.840 for the earlier judgment that Louisiana needed a second black 0:05:30.880 --> 0:05:32.040 majority district. 0:05:32.279 --> 0:05:35.320 What use of race in drawing maps is permissible? 0:05:35.800 --> 0:05:38.200 You can use it in the remedial sense. I mean, 0:05:38.480 --> 0:05:42.359 obviously you couldn't remedy Voting Rights Act violations unless you 0:05:42.400 --> 0:05:45.680 took race into account in drawing the remedy. But the 0:05:45.800 --> 0:05:48.200 question is sort of when does race too much? That's 0:05:48.560 --> 0:05:50.440 that's where the Court has settled out over the less 0:05:50.440 --> 0:05:53.480 several decades. You can't ignore race, and sometimes you have 0:05:53.520 --> 0:05:55.800 to take race into account. But if you give race 0:05:55.880 --> 0:05:58.840 too much attention they use the notion of predominance, then 0:05:58.920 --> 0:06:02.159 unless it's just a by something else like the Voting 0:06:02.240 --> 0:06:05.160 Rights Act, then it violates ecal protection clause. 0:06:05.720 --> 0:06:09.480 There's a tension between the Court's precedent in those two areas. 0:06:09.839 --> 0:06:11.359 In a sense, I mean, the Court has said you 0:06:11.360 --> 0:06:13.880 can use race, you just can't use it too much. 0:06:14.360 --> 0:06:18.760 The justification for using race is to remedy another violation, 0:06:19.000 --> 0:06:22.560 like a Voting Rights Act violation. If a court concludes 0:06:22.600 --> 0:06:25.840 that the state's distresting pattern discriminates the based on race 0:06:25.960 --> 0:06:29.080 or has a racially disparate impact, which is what happened 0:06:29.120 --> 0:06:33.160 in this case, then redistricting is based on some attention 0:06:33.240 --> 0:06:36.839 to race. The concern in the plaintiff's claim. In this case, 0:06:36.880 --> 0:06:41.000 the white plaintiffs are the district that they true kind 0:06:41.000 --> 0:06:43.120 of stretches across the state, and what it does is 0:06:43.120 --> 0:06:46.640 it picks up pockets of black population in different parts 0:06:46.680 --> 0:06:49.360 of the state to create a black majority district, and 0:06:49.400 --> 0:06:52.560 that makes it look like a racial gerrymander. The state's defense, 0:06:52.640 --> 0:06:56.279 as well as the defense by the original voting rights plaintiffs, 0:06:56.760 --> 0:07:00.000 is well, the reason that stretches across the state is 0:07:00.080 --> 0:07:03.360 really for partisan purposes, because we didn't want to put 0:07:03.400 --> 0:07:07.359 it in the area that the black plaintiffs originally wanted 0:07:07.360 --> 0:07:09.520 because that would have gotten rid of an incumbent that 0:07:09.560 --> 0:07:12.560 we like. So we did it this way to get 0:07:12.640 --> 0:07:14.720 rid of an incumbent we didn't care about so much. 0:07:15.000 --> 0:07:18.760 And the voting rights plaintiffs also point out that much 0:07:18.800 --> 0:07:21.560 of the district does include much of the district that 0:07:21.600 --> 0:07:24.200 they had originally proposed, but it is true it is 0:07:24.240 --> 0:07:26.480 the kind of district that does stretch across the state 0:07:26.960 --> 0:07:29.040 in a way that has often drawn criticism. 0:07:29.560 --> 0:07:33.520 Did you hear a divide between the conservative justices and 0:07:33.600 --> 0:07:38.040 the liberal justices on the use of race in this case. 0:07:38.600 --> 0:07:41.880 Well, I think the conservative justices, who I think were yes, 0:07:41.960 --> 0:07:44.200 they are troubled by it. I think they were slightly 0:07:44.240 --> 0:07:47.800 frustrated by the fact that the state, to the Louisiana 0:07:48.040 --> 0:07:51.600 Conservative Republican lad state, is defending the map, and the 0:07:51.680 --> 0:07:55.320 state basically kept making the point the reason we did 0:07:55.360 --> 0:07:58.400 this is because we had a judgment against us, and 0:07:58.480 --> 0:08:01.000 I think some of the conservatives maybe kind of wondered, 0:08:01.080 --> 0:08:03.160 you know, maybe you should have challenged that, do you 0:08:03.240 --> 0:08:05.280 agree with that judgment against you? And of course the 0:08:05.280 --> 0:08:07.320 state's position is no, we don't agree with the judgment 0:08:07.320 --> 0:08:10.160 against us, but we lost twice and we didn't want 0:08:10.200 --> 0:08:12.960 the courts to impose a map on us. So I 0:08:13.040 --> 0:08:17.320 think the Conservatives were somewhat frustrated in this case because 0:08:17.360 --> 0:08:21.680 they're not directly reviewing the original lower court case that 0:08:21.800 --> 0:08:25.360 said Louisiana violated the Voting Rights Act. They never took 0:08:25.400 --> 0:08:30.160 that case. What they're reviewing is the state's remedy, in which, 0:08:30.480 --> 0:08:33.960 although it's clear that race plays an important role in 0:08:34.000 --> 0:08:38.400 their redoing the map altogether, I think the states argument 0:08:38.559 --> 0:08:44.200 was that this particular configuration reflects our political judgment that 0:08:44.240 --> 0:08:48.080 if we had to sacrifice one white Republican congressman. We 0:08:48.200 --> 0:08:50.840 chose Congressman X and not Congresswoman Y. 0:08:51.760 --> 0:08:55.360 There's been a lot of talk lately about the standoff 0:08:55.440 --> 0:08:59.800 between the Trump administration and the courts and the question 0:08:59.840 --> 0:09:04.640 of whether the Trump administration is actually following complying with 0:09:04.760 --> 0:09:09.560 court orders. Did you see subtle references to that during 0:09:09.559 --> 0:09:13.640 the oral arguments? You had the Louisiana Solicitor General saying right, 0:09:13.920 --> 0:09:17.479 we're in the business of complying with federal court decisions, 0:09:18.200 --> 0:09:23.559 and Justice Jackson clarifying with him later that the court 0:09:23.720 --> 0:09:27.080 order was the reason why Louisiana drew up the map, 0:09:27.400 --> 0:09:30.079 and it didn't matter whether the order was right or wrong. 0:09:30.520 --> 0:09:34.120 There's no dispute that the court's order was the reason 0:09:34.200 --> 0:09:36.400 that Louisiana did this. 0:09:36.840 --> 0:09:39.400 Did the new map right? Mister Grime can correct me 0:09:39.440 --> 0:09:41.160 for wrong, but I don't think so, Your honor. 0:09:41.240 --> 0:09:44.280 And the question is whether or not the fact that 0:09:44.320 --> 0:09:47.120 you had a court order was good enough reason for 0:09:47.160 --> 0:09:49.200 you to do it. Is that what you understand the 0:09:49.320 --> 0:09:50.520 basic question. 0:09:50.320 --> 0:09:52.360 To be that's correct, not just one order but two 0:09:52.440 --> 0:09:53.120 layers of orders. 0:09:53.200 --> 0:09:56.280 Yes, Your Honor, and I guess I'm still a little 0:09:56.320 --> 0:09:59.320 confused as to why it matters whether the court order 0:09:59.440 --> 0:10:04.080 was right or not. You were still being compelled by 0:10:05.400 --> 0:10:08.240 the court to do what you did in this case. 0:10:08.320 --> 0:10:10.280 Correct, that's correct, Justice Jackson. 0:10:10.840 --> 0:10:13.440 That was my impression as well that the Slicter General 0:10:13.880 --> 0:10:17.120 was being very good about saying, we follow court orders. 0:10:17.559 --> 0:10:20.040 We lost once, we took an appeal, and then we 0:10:20.120 --> 0:10:22.760 follow the court orders. And some of the justices were 0:10:22.760 --> 0:10:25.400 pressing him, well, what if it was completely wrong? You know, 0:10:25.559 --> 0:10:27.920 would you follow it if it was completely wrong, and 0:10:27.920 --> 0:10:29.520 he was saying, you know, we're not going to get 0:10:29.559 --> 0:10:31.840 in the judgment of deciding whether it's completely wrong. We 0:10:31.880 --> 0:10:34.240 didn't like it. We defended our position, we thought we 0:10:34.240 --> 0:10:36.200 were right, we took an appeal, we thought we right 0:10:36.240 --> 0:10:38.559 an appeal, we lost the appeal, and I think our 0:10:38.559 --> 0:10:41.440 solution was, instead of keeping fighting, we want to be 0:10:41.440 --> 0:10:43.440 able to control our own map. 0:10:43.720 --> 0:10:46.439 Coming up next on the Bloomberg Law Show, I'll continue 0:10:46.480 --> 0:10:50.360 this conversation with Columbia Law School professor Richard Breflt. We'll 0:10:50.400 --> 0:10:53.280 take a look at how the justices might rule. I'm 0:10:53.320 --> 0:10:58.079 June Grosso. When you're listening to Bloomberg, the Supreme Court 0:10:58.400 --> 0:11:01.959 justices displayed a deep divide over the use of race 0:11:02.000 --> 0:11:06.760 and redistricting in a case involving Louisiana's congressional map that 0:11:06.840 --> 0:11:10.920 created a second majority black voting district. At issue is 0:11:11.000 --> 0:11:15.440 the new district drawn by Republicans, which runs a jagged 0:11:15.559 --> 0:11:19.200 course over two hundred and fifty miles from Shreveport to 0:11:19.280 --> 0:11:24.720 Baton Rouge. Louisiana Solicitor General Ben Aguinyaga said the state 0:11:24.880 --> 0:11:29.120 was simply abiding by a court decision and was entitled 0:11:29.160 --> 0:11:33.040 to flexibility in doing so as it tried to ward 0:11:33.120 --> 0:11:36.679 off the prospect of a court imposed map. His arguments 0:11:36.679 --> 0:11:39.840 seemed to resonate with much of the Court, including Justice 0:11:39.880 --> 0:11:40.960 Amy Coney Barrett. 0:11:41.240 --> 0:11:43.120 I mean, is it also because of the position that 0:11:43.160 --> 0:11:45.199 it puts the state in here? I mean, it's not 0:11:45.280 --> 0:11:47.480 just a matter of your obedience to the federal court order, 0:11:47.480 --> 0:11:49.719 which I appreciate. You know you would be obedient to 0:11:49.760 --> 0:11:52.120 the federal court order. But it's also that if you 0:11:52.240 --> 0:11:55.760 had continued to litigate the Robinson, if you had continued 0:11:55.800 --> 0:11:59.320 to litigate in Robinson, you risked having the court imposed map. 0:11:59.400 --> 0:12:01.800 And so it's really litigation risk that's part of the 0:12:01.840 --> 0:12:02.600 calculus here. 0:12:02.800 --> 0:12:07.160 I've been talking to Professor Richard Rfald of Columbia Law School, Rich, 0:12:07.200 --> 0:12:09.400 do you have any inkling for what the Court might 0:12:09.480 --> 0:12:09.920 do here? 0:12:10.440 --> 0:12:13.240 Well, first off, never predict the Supreme Court, but I 0:12:13.280 --> 0:12:16.600 think there seemed to be enough understanding of this by 0:12:16.600 --> 0:12:19.439 at least some of the justices that you might say 0:12:19.480 --> 0:12:23.040 that justice is in the middle, like Cavanaugh and Barrett, 0:12:23.440 --> 0:12:27.120 of the tight squeeze that the state was in, and 0:12:27.200 --> 0:12:30.800 the idea that the state should have some space, some 0:12:30.920 --> 0:12:35.200 discretion to accommodate a court and also to accommodate its 0:12:35.200 --> 0:12:38.680 own political preferences. I mean, of course a Gelito and 0:12:38.720 --> 0:12:42.560 Thomas were clearly very unhappy with this map. Robert said 0:12:42.640 --> 0:12:45.360 very little as far as I could tell, and I 0:12:45.360 --> 0:12:48.360 think maybe I'm overreading it, and you never know with them, 0:12:48.360 --> 0:12:50.679 but I think there was some sympathy I think I 0:12:50.679 --> 0:12:54.080 saw in Barrett and Cavanaugh for the situation that the 0:12:54.120 --> 0:12:57.360 state was in. You have the impression from the very 0:12:57.360 --> 0:13:00.200 conservative justices and even from some of the justices in 0:13:00.240 --> 0:13:03.439 the middle, that they may be looking to rethink the 0:13:03.640 --> 0:13:06.920 Voting Rights Act and rethink how much attention race should 0:13:06.920 --> 0:13:09.880 be given in districting. But my impression is at least 0:13:09.880 --> 0:13:12.520 for some of the justices may be realizing that this 0:13:12.679 --> 0:13:16.440 is not the vehicle for that because given the state's 0:13:16.440 --> 0:13:21.440 defenses so heavily based on partisan considerations, which I think 0:13:21.440 --> 0:13:24.840 they were pretty good at showing were real and not pretend. 0:13:25.480 --> 0:13:28.560 Just tell us a little bit about how the Supreme 0:13:28.600 --> 0:13:31.959 Court has sort of been chipping away at the power 0:13:32.000 --> 0:13:33.199 of the Voting Rights Act. 0:13:33.640 --> 0:13:35.960 Well, I mean candidly. The one case that's most relevant 0:13:36.000 --> 0:13:38.400 is the case that they didn't the Alabama redistrict in 0:13:38.400 --> 0:13:40.920 case Milligan, which was decided two years ago, and this 0:13:41.000 --> 0:13:44.600 case follows immediately on it, whereby a five to four vote, 0:13:44.600 --> 0:13:47.760 they actually upheld a lower court judgment that the Alabama 0:13:47.840 --> 0:13:51.320 congressional district being planned had a racially disparate impact and 0:13:51.440 --> 0:13:54.559 that it denied fair representation to black voters in Alabama 0:13:55.040 --> 0:13:58.559 and required the creation of a second black majority district 0:13:58.600 --> 0:14:01.360 in Alabama. It was that case that I think the 0:14:01.440 --> 0:14:05.720 lower courts relied on in the earlier version the first 0:14:05.800 --> 0:14:08.559 round of this case to find that Louisiana was in 0:14:08.679 --> 0:14:11.400 violation of the Voting Right Sect and maybe why the 0:14:11.520 --> 0:14:14.360 US Supreme Court didn't take the Louisiana cases. They had 0:14:14.400 --> 0:14:17.360 just decided the Alabama case that was a five to 0:14:17.400 --> 0:14:19.720 four case and It was a bit of a surprise 0:14:19.760 --> 0:14:23.400 because they previously issued a stay against the lower court 0:14:23.520 --> 0:14:25.360 order in that case, so that he allowed the old 0:14:25.400 --> 0:14:28.160 map to be used one more election. So I think, 0:14:28.400 --> 0:14:31.080 you know it's in other areas. The Court has certainly 0:14:31.160 --> 0:14:34.200 cut back. They have made it now almost impossible for 0:14:34.320 --> 0:14:39.720 plaintiffs to bring voting rightsack claims, challenging various mechanisms like 0:14:39.800 --> 0:14:42.840 voter ID and issues that make it harder for people 0:14:42.960 --> 0:14:46.240 with a claim. Is that certain you know, voter registration 0:14:46.320 --> 0:14:49.760 and voter ID rules that just spread impact on black 0:14:49.840 --> 0:14:52.160 or other minority voters that to court in the case 0:14:52.160 --> 0:14:54.680 called Bernovich some years ago threw that out. Now more 0:14:54.720 --> 0:14:56.800 than ten years ago, they got rid of Section five, 0:14:56.840 --> 0:14:59.680 which was the preclearance requirement, which was probably the most 0:14:59.680 --> 0:15:02.160 importan short and piece of the Voting Rights Act, requiring 0:15:02.400 --> 0:15:04.800 certain states which had a very bad track record of 0:15:04.920 --> 0:15:08.720 racial discrimination to get their voting law changes preclued by 0:15:08.720 --> 0:15:11.160 the Department of Justice. Now about ten years ago, and 0:15:11.200 --> 0:15:13.680 they've been sending signals at least a number of justices 0:15:13.720 --> 0:15:16.360 that they are troubled by the reader which the Voting 0:15:16.440 --> 0:15:19.720 Rights Act is being used to challenge voting laws, voting 0:15:19.760 --> 0:15:24.040 rules and things like districting plans. But right now, the 0:15:24.080 --> 0:15:26.280 most recent case, that Alabama case, is one where they 0:15:26.320 --> 0:15:29.280 actually are continuing to enforce it. Some people are seeing 0:15:29.280 --> 0:15:31.760 this as another challenge. I think if the Court is 0:15:31.800 --> 0:15:34.000 going to start cutting back on the role of Section 0:15:34.000 --> 0:15:36.480 two of the Voting Rights Act in challenging districting plans, 0:15:36.520 --> 0:15:37.880 I'll go out on a limb and say this is 0:15:37.960 --> 0:15:41.200 probably not the case, but you could imagine it happening 0:15:41.240 --> 0:15:42.560 in the not too distant future. 0:15:42.880 --> 0:15:45.080 I mean, you were surprised by that Alabama case. I 0:15:45.160 --> 0:15:48.520 was stunned, and I'm wondering if it's an exception rather 0:15:48.560 --> 0:15:51.120 than the rule, because it sort of stood out right. 0:15:51.240 --> 0:15:53.560 But this case is an immediate follow on, and it's 0:15:53.560 --> 0:15:56.320 not even this case. It's the case that this case 0:15:56.360 --> 0:15:58.480 builds on. The thing is this case is not a 0:15:58.600 --> 0:16:00.880 direct review of that case. In some ways, it is 0:16:01.040 --> 0:16:04.160 arguably an indirect review of that case. But the Louisiana 0:16:04.240 --> 0:16:06.840 case basically saying that Louisiana needs to create a second 0:16:06.840 --> 0:16:10.560 black majority district was very, very similar to the Alabama case. 0:16:10.960 --> 0:16:13.680 So it would be a real stretch, I think, to 0:16:13.720 --> 0:16:17.520 say that the district is racially predominant when the state 0:16:17.600 --> 0:16:20.120 was acting because of a court order, and the factors 0:16:20.120 --> 0:16:24.520 that led to this particular district design were clearly political, 0:16:24.720 --> 0:16:27.040 or at least to some degree political. I mean, there 0:16:27.080 --> 0:16:30.040 was an interesting bit of a dialogue between Justice Cavanon 0:16:30.120 --> 0:16:32.920 one of the advocates about, you know, how do you 0:16:32.960 --> 0:16:36.960 decide whether something is racially predominant or politically predominant? Is 0:16:37.000 --> 0:16:38.680 it fifty to fifty? Is a sixty forty is a 0:16:38.760 --> 0:16:41.680 seventy thirty? And this Lister General for Louisiana saying we 0:16:41.800 --> 0:16:45.120 think this is about seventy percent political, and that if 0:16:45.120 --> 0:16:47.320 it's in the sixty eighty percent political aught to be 0:16:47.320 --> 0:16:50.440 seen as politically predominant and not racially predominant. There was 0:16:50.480 --> 0:16:52.200 an interesting effort how do they decide? 0:16:52.480 --> 0:16:54.520 Let's listen to part of that exchange. 0:16:54.920 --> 0:16:57.760 So the rule I think you one is political considerations 0:16:57.760 --> 0:17:00.400 are fine to take into account and doing the map 0:17:01.000 --> 0:17:06.480 the second map in fifties kind of floor on that. 0:17:07.200 --> 0:17:09.359 I think. So, I mean, this court has never spelled 0:17:09.400 --> 0:17:12.679 out what substantially addresses means as a numerical matter, and 0:17:12.760 --> 0:17:15.320 to my mind, if I'm between sixteen and eighty percent, 0:17:15.400 --> 0:17:18.040 I think that's substantial. But obviously a judgment call for. 0:17:18.080 --> 0:17:21.800 This court, and it struck me that the Social General 0:17:21.880 --> 0:17:25.040 Louisiana did a very good job of basically saying, all 0:17:25.040 --> 0:17:28.240 we're doing is trying to abide by a court order 0:17:28.280 --> 0:17:31.840 in a way that satisfies our internal political needs. 0:17:32.440 --> 0:17:35.240 In light of that, would their decision have any impact 0:17:35.280 --> 0:17:36.840 on future cases. 0:17:36.680 --> 0:17:39.520 Since it's not a direct review of that Louisiana case, 0:17:39.560 --> 0:17:41.560 I don't know. I mean, I think in some ways 0:17:41.560 --> 0:17:44.560 it ratifies the idea that it's consistent with the earlier 0:17:44.680 --> 0:17:46.960 the Routsho case, which is that partisan jury maner is 0:17:47.040 --> 0:17:49.119 just fine. It follows on that. I mean, in some 0:17:49.160 --> 0:17:51.600 ways this is an odd partisan jury manner because it 0:17:51.680 --> 0:17:55.359 wasn't Republican on democratic, Republican on Republican one way or 0:17:55.480 --> 0:17:57.399 the other. A republican district was going to go. But 0:17:57.480 --> 0:17:59.600 so you could maybe instead of saying partisan jury manner, 0:17:59.600 --> 0:18:02.840 you're called political gerrymandering. But this is clearly a case 0:18:02.840 --> 0:18:07.639 where political forces were very important and leading to in 0:18:07.960 --> 0:18:10.080 somewhat oddly shaped district. I mean, the trick in the 0:18:10.119 --> 0:18:13.080 case is presumably if the plaintiffs have come forward with 0:18:13.240 --> 0:18:16.560 this district, they may very well have lost, because this 0:18:16.720 --> 0:18:20.240 is not the kind of compact district that respects political 0:18:20.240 --> 0:18:23.920 subdivision or you know, local community lines that the court likes, 0:18:24.160 --> 0:18:26.720 but the plaintiffs didn't come forward with this district. The 0:18:26.720 --> 0:18:29.080 oddity of this case is the plaintiffs were able to 0:18:29.160 --> 0:18:31.600 show the district court in the first case that you 0:18:31.640 --> 0:18:35.399 could create a very straight, very compact district that respected 0:18:35.480 --> 0:18:39.240 community lines and subdivision lines better than the state's original 0:18:39.280 --> 0:18:42.320 plan and create that as a black majority district. That 0:18:42.400 --> 0:18:45.080 persuaded the district court. But then when the state went 0:18:45.119 --> 0:18:47.480 and okay to do the remedy, they came up with 0:18:47.520 --> 0:18:51.240 a completely different district. Now that's not the plaintiff's fault. 0:18:51.480 --> 0:18:54.520 The plaintiffs are still defending what they did because they say, well, 0:18:54.520 --> 0:18:57.760 we still get a lot in this It's still seventy 0:18:57.800 --> 0:19:01.320 percent of our original district is in this district, but 0:19:01.560 --> 0:19:03.600 you know, it's not the one that the plaintiffs had 0:19:03.640 --> 0:19:04.120 asked for. 0:19:04.960 --> 0:19:08.080 And will the court's decision here have any effect on 0:19:08.720 --> 0:19:11.720 the congressional map in the midterms. 0:19:11.520 --> 0:19:15.119 Well, I think this district is already in place, so 0:19:15.440 --> 0:19:17.560 in some ways, the Democrats picked up one seat in 0:19:17.600 --> 0:19:20.720 Louisiana because I think this map was used in twenty 0:19:20.800 --> 0:19:24.520 twenty four so if it's reversed, then there's a likely 0:19:24.600 --> 0:19:28.959 Republican pickup of one in Louisiana depends. But so I 0:19:28.960 --> 0:19:32.480 think it's already had a one seat partisan effect, as 0:19:32.520 --> 0:19:34.040 the Alabama redistricting did. 0:19:34.359 --> 0:19:38.080 So the federal government. Where did the Trump administration stand 0:19:38.119 --> 0:19:38.440 on this? 0:19:38.600 --> 0:19:42.320 They remove themselves from it. Your Biden administration was defending 0:19:42.359 --> 0:19:45.240 the map. The Trump administration, I think, in the end, 0:19:45.320 --> 0:19:46.199 didn't take a position. 0:19:46.560 --> 0:19:50.000 I have to say this is a very confusing, perhaps 0:19:50.000 --> 0:19:54.280 because of the complex procedural history, perhaps because the state 0:19:54.359 --> 0:19:55.880 seems to be in an odd position. 0:19:56.480 --> 0:19:59.640 This is a very odd case, and so I think 0:19:59.680 --> 0:20:03.040 this is one that may not have a lot of law. 0:20:03.080 --> 0:20:06.119 I mean, well, if the lower court is reversed and 0:20:06.160 --> 0:20:08.240 the state's map is sustained, because what happened in this 0:20:08.240 --> 0:20:10.600 case is the lower court in the second set of 0:20:10.680 --> 0:20:14.760 litigation said no, this map is an unconstitutional racial jerry manner. 0:20:15.080 --> 0:20:18.400 If the lower court is reversed, then I don't think 0:20:18.440 --> 0:20:21.600 there'll be much a significance. The lower court is sustained, 0:20:21.640 --> 0:20:24.600 then I think it's going to be very weird, because 0:20:24.640 --> 0:20:26.720 then it means that at anytime racist the factor at 0:20:26.760 --> 0:20:31.520 all becomes a problem, and so it's again almost impossible 0:20:31.560 --> 0:20:34.199 to read the Supreme Corporate but at least based on 0:20:34.359 --> 0:20:37.359 the way the questioning went by, at least by Barrett 0:20:37.359 --> 0:20:40.560 and maybe Kavanaugh, they seem to sort of realize that 0:20:40.720 --> 0:20:43.359 the state was between a rock and a hard place 0:20:43.600 --> 0:20:45.560 and they might be inclined to just leave it alone. 0:20:45.840 --> 0:20:50.120 And the Solicitor General was really strong and pointed out 0:20:50.160 --> 0:20:53.359 over and over again that Louisiana was complying with the 0:20:53.400 --> 0:20:53.960 court order. 0:20:54.400 --> 0:20:57.200 You know, if the state had just created this district 0:20:57.359 --> 0:20:59.760 to create a black majority district, they would be Shawvy 0:20:59.800 --> 0:21:03.040 Rain and it would be thrown out. But you know, 0:21:03.720 --> 0:21:06.680 they did it because a court forced them to create 0:21:06.680 --> 0:21:09.600