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Speaker 1: We've already removed thousands of people who have arrived at

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Speaker 1: our southern border. We are enforcing our traditional immigration enforcement

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Speaker 1: authorities under Title eight of the United States Code.

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Speaker 2: The chaos expected at the border after the end of

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Speaker 2: Title forty two has not materialized so far, and Homeland

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Speaker 2: Security Secretary Alejandro Majorkis credits the Biden administration's new tougher

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Speaker 2: asylum policies and expanded legal pathways to enter the country.

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Speaker 2: But from New York to Chicago to Denver, cities are

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Speaker 2: scrambling to accommodate more migrants as Texas Governor Greg Abbott

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Speaker 2: continues to bus asylum seekers from the southern border to

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Speaker 2: sanctuary cities. New York City Mayor Eric Adams had some

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Speaker 2: harsh words for people criticizing the city's decision to house

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Speaker 2: thousands of migrants in hotels.

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Speaker 3: So, whomever said, don't go to a hotel on this

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Speaker 3: don't go to a hotel on that block. If you're

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Speaker 3: just telling me that, then I need for you to

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Speaker 3: tell me where to go.

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Speaker 2: My guest is immigration law expert Leon Fresco, a partner

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Speaker 2: at hollanden Knight. So Leon, let's start with the end

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Speaker 2: of Title forty two. The number of migrants encountered at

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Speaker 2: the southern border fell fifty percent during the last three days.

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Speaker 2: You know, everyone was anticipating that there would be a

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Speaker 2: surge at the border.

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Speaker 4: I think for a lot of people, there's a way

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Speaker 4: to see approach that they're operating with, which is that

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Speaker 4: they want to see a are there going to be

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Speaker 4: a sufficient number of the CBP one appointment on the

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Speaker 4: border that people can use to access the process legally

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Speaker 4: without needing to access the process illegally. Be what's going

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Speaker 4: to happen to people who sort of test the system

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Speaker 4: and put their finger in the plug, so to speak.

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Speaker 4: Are they going to get an electric shock or not?

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Speaker 4: And I think people are waiting to see how people

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Speaker 4: are being treated who cross the border. Are they being

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Speaker 4: thrown into detention? Are they being allowed to be released?

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Speaker 4: And I think as people start to see to the

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Speaker 4: extent possible that there's not enough detention space to put

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Speaker 4: everyone in the tension, I think you'll see an uptick

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Speaker 4: on the numbers there. And I think people are also

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Speaker 4: trying to see what this thing means that you're not

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Speaker 4: eligible for asylum, and I think they don't really understand

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Speaker 4: it quite yet. But what they figure out what that

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Speaker 4: means is that many years down the road, your court

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Speaker 4: case is going to be harder, but there's not really

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Speaker 4: a bar per se on bringing you into the country.

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Speaker 4: I think you'll see these numbers increase. But for what

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Speaker 4: you're seeing right now for the moment is sort of

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Speaker 4: a feeling out process because people don't really understand the

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Speaker 4: incentive structure and what is the best way to operate

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Speaker 4: within this current incentive structure.

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Speaker 2: So explain what the Biden plan is or what the

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Speaker 2: enforcement mechanisms in place are.

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Speaker 4: The Biden Plan is trying to provide what's called a

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Speaker 4: carrot and six approach and what it's trying to say,

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Speaker 4: And of course all of this is subject to litigation,

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Speaker 4: but let's just say with what their ideal plan would be.

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Speaker 4: If nothing was enjoyed by the court, their ideal plan

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Speaker 4: would be on the carrot end. There's two ways to

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Speaker 4: access carrots. Number one is to get an appointment online

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Speaker 4: to go to a port of entry and ask for

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Speaker 4: asylum at the port of entry. And the reason for

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Speaker 4: that is because if you cross in between the ports illegally,

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Speaker 4: you create much more strain on the system. You have

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Speaker 4: to have border patrol people come and get you and

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Speaker 4: put you in a detention facility, and they don't know

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Speaker 4: how many people are coming and they can't plan for it.

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Speaker 4: Whereas if you access the system legally, we know on

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Speaker 4: any given day there's going to be this many people

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Speaker 4: that come through per day. They're going to be coming

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Speaker 4: in through these ports, and then they can be planned for.

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Speaker 4: So the idea is, do that and you'll be able

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Speaker 4: to access the asylum system if you actually have a

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Speaker 4: credible fear of person secution in your home country. Alternatively,

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Speaker 4: you can apply at least for so long as it exists,

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Speaker 4: which might be another month or so, or maybe the

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Speaker 4: court will rule that Bison can do this. But for

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Speaker 4: these thirty thousand parole slots per month from Venezuela, let

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Speaker 4: you buy Nicaragua and Haiti, and if you apply for

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Speaker 4: those parole slots, then you can actually access the system

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Speaker 4: legally without even needing an asylum plane. You just get

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Speaker 4: into one of the slots and you can come into

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Speaker 4: the United States, or you can make an asilent claim

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Speaker 4: at one of these two processing sensors that's opening up

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Speaker 4: either in Colombia or in Central America, and in those sensors,

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Speaker 4: you can make your claim, and if you have a

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Speaker 4: legitimate asylum plane, you can be brought into the United

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Speaker 4: States as a refugee. You automatically win your case. You

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Speaker 4: don't even need to go into court in that situation.

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Speaker 4: And so those are the ideas and as opposed to that,

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Speaker 4: if you cross illegally without any announcement or any permission,

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Speaker 4: then what the Biden administration will do is theoretically, the

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Speaker 4: threat of the terrence that they're putting is they're saying

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Speaker 4: you won't be able to access the asylum system, which

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Speaker 4: doesn't mean you can't say it just means you have

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Speaker 4: a harder evidentiary burden to get this thing called withholding

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Speaker 4: of removal, which doesn't give you a past to citizenship.

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Speaker 4: It just allows you to stay temporarily while the conditions

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Speaker 4: in your country remain dangerous to you. And that's all

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Speaker 4: you're going to be able to get, which means you

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Speaker 4: can't position for any family members, you won't ever be

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Speaker 4: able to access a green card or be able to

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Speaker 4: get any of the benefits that come with a green

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Speaker 4: card or citizenship. And the question is how much of

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Speaker 4: a long term deterrent is going to be versus if

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Speaker 4: people don't have access to these other carrots, either because

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Speaker 4: they get taken away from the courts or what happens

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Speaker 4: is that there's too few carrots and too many people.

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Speaker 4: They may just say, you know what, the fact that

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Speaker 4: I could just come into America and wait six years

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Speaker 4: for a coordinate is good enough for me. If six

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Speaker 4: years later I can't get asylum, we'll deal with that then.

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Speaker 4: And so that's the question. I think everybody's waiting to

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Speaker 4: see how that shakes out on the border for the

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Speaker 4: next few weeks.

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Speaker 2: So the credible fear interview, does every migrant from let's say, Haiti, Venezuela,

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Speaker 2: do they all pass the credible fear interview?

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Speaker 4: Because you have to be able to articulate a fear

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Speaker 4: from one of those countries that's based on your race,

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Speaker 4: your religion, your nationality, your social group, or your political opinion.

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Speaker 4: So at least from Cuba, Venezuela, and Nicaragua, those currently

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Speaker 4: have repressive governments. So if you articulate anything like I'm

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Speaker 4: a political dissident, they know me and they're gonna arrest

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Speaker 4: me if I come back because I was participating in

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Speaker 4: x y or z protest. That's going to be enough

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Speaker 4: to get you through the credible fear screening. For Haiti,

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Speaker 4: it's a little bit tougher because the idea is that

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Speaker 4: the political persecution is not necessarily the problem there. So

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Speaker 4: you'd have to say that there were some gang or

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Speaker 4: rebel paramilitary force or something like that that was trying

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Speaker 4: to persecute you for some reasons. And so those are

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Speaker 4: harder claims to make on the Haitian side. But the

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Speaker 4: problem is on the Haitian side, even if you can't

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Speaker 4: make that claim, there's only so few people that were

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Speaker 4: being allowed to remove the Haiti right now, and so

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Speaker 4: that's an issue of still people potentially being released just

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Speaker 4: because there's not enough life and plots to remove people

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Speaker 4: to Haiti.

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Speaker 2: Let's talk about the lawsuits in Florida. The US is

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Speaker 2: in litigation about whether it can release migrants without what's

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Speaker 2: called unnoticed to appear. So what they've been doing is

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Speaker 2: just releasing migrants from custody with instructions to report an

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Speaker 2: immigration office in sixty days. Do they come back?

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Speaker 4: Well, so we've gone through this, June. I don't know

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Speaker 4: if you recall there's been two Supreme Court cases in

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Speaker 4: the last two years shockingly enough, on the civil issue

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Speaker 4: of whether when you get your notice for your hearing,

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Speaker 4: does it have to have the correct date and time

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Speaker 4: on it? I don't know.

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Speaker 2: If you're ready, yes, I definitely do recall it.

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Speaker 4: And so this issue has gone twice to the Supreme Court.

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Speaker 4: Has created a major problem for the people down at

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Speaker 4: the southern border, because how the heck are they supposed

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Speaker 4: to know what the correct date and time should be

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Speaker 4: for a hearing because they don't even know where what

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Speaker 4: cities people are going to end up in, and so

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Speaker 4: it becomes very complicated. So what the Border Patrol has

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Speaker 4: wanted to do is to say, look, don't make this

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Speaker 4: our problem, because we're not good at this. We can't

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Speaker 4: figure out all the court systems and what date and

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Speaker 4: what times and what cities because half of the folks

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Speaker 4: don't even know where they're going to end up. And

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Speaker 4: so from that perspective, what we want to do is

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Speaker 4: give them an opportunity to get their bearings and then

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Speaker 4: come back and report and get their date and time

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Speaker 4: for their hearing. Now, of course, the problem is how

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Speaker 4: many people are going to do that, get their bearing

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Speaker 4: and voluntarily go to an ice second sixty years later

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Speaker 4: at the city they end up in. I mean, it's

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Speaker 4: a credible point to say that only the best intention

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Speaker 4: the people are going to actually do that. And so

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Speaker 4: it's really a damned if you do, damns if you

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Speaker 4: don't situation, because yes, you can release people with a

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Speaker 4: hearing notice, and that hearing notice ninety nine out of

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Speaker 4: one hundred times is going to be worthless because it's

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Speaker 4: going to be for a city that the people aren't

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Speaker 4: even living in, and one day they're going to be

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Speaker 4: in assentia in the court. They're not going to show

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Speaker 4: up for their hearing, and many years later they'll be

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Speaker 4: apprehended and strike to be deported and they'll say, I

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Speaker 4: never got notice of my hearing. I didn't live in Toledo.

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Speaker 4: I lived in Chicago, did Why did they assign me

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Speaker 4: for Toledo. So the point is it's really about what

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Speaker 4: is most effective to get people through the system, and

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Speaker 4: Florida has taken the position at least get people a

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Speaker 4: hearing date and a notice, and ICE is saying this

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Speaker 4: is taking us too long. People are in detention. Sells

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Speaker 4: huge overcrowd itself with fifty people in one toilet, while

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Speaker 4: we're trying to figure this out, and it's not really,

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Speaker 4: in the end, any more effective at creating the terrens

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Speaker 4: than having the people show up to the ICE situations,

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Speaker 4: because if these notices are useless, then they're just as

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Speaker 4: useless as people not showing up to the ICE checkert.

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Speaker 4: And so this is the tension on both sides of

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Speaker 4: the argument.

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Speaker 2: So leone tell us what the judge did that Florida case.

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Speaker 4: What the Florida judge did is said, look, I recognize

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Speaker 4: all of the practical and logistical concerns that you're saying,

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Speaker 4: but at the end of the day, I cannot let

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Speaker 4: you release people without giving them The law says what

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Speaker 4: the law says. When the Attorney General is what it

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Speaker 4: says in the statue, but now it's really the Secretary

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Speaker 4: of Homeland Security encounters a person without status. They must

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Speaker 4: detain the person, the statue says, must must detain the

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Speaker 4: person and play them in removal proceedings, and then after

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Speaker 4: that can make a decision about releasing them while the

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Speaker 4: proceedings are pending. But they can't just ignore the person

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Speaker 4: who's an undocumented status or parole the person in a

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Speaker 4: documented status. Here's the question that's going to be the

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Speaker 4: one that goes to the Supreme Court is can they

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Speaker 4: parole the person? The Supreme Court hasn't said. The federal

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Speaker 4: government thinks they can. This judge thinks that that's arbitrary

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Speaker 4: and capricious, that you can't use parole as a way

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Speaker 4: to enmas circumvent the requirement that's in the statute that

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Speaker 4: when the government encounters an undocumented person, they have to

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Speaker 4: detain them and place them in removal proceeding. You know,

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Speaker 4: you could do parole on an individual, case by case basis,

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Speaker 4: but when you do a whole system that's designed to

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Speaker 4: circumvent this requirement, that that's arbitrary and capricious under the

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Speaker 4: Administrative Procedure Act. So you can't do that. You can't

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Speaker 4: just have an entire workaround for administrative convenience. And so

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Speaker 4: that's what the judge in Florida said. The judge was

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Speaker 4: going to save his own decision, but didn't in the end,

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Speaker 4: now has kept it going. The Eleventh Circuit hasn't overturned

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Speaker 4: it yet. So for the moment, the Biden administration is

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Speaker 4: going to have to when it detains these individuals, keep

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Speaker 4: them in the CDP holding cells until it can figure

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Speaker 4: out what time and date to put on the hearing notice,

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Speaker 4: to give them the hearing notice to have them go

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Speaker 4: on to the next step of the process, which is

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Speaker 4: the removal preceding process.

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Speaker 2: The ACLU is trying to block Homeland Security from implementing

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Speaker 2: Biden's policy, saying it closely resembles a Trump administration's policy

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Speaker 2: that a court blocked. Tell me about that.

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Speaker 4: So this is a very fascinating issue between two statues

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Speaker 4: that are both legal and both conflict with one another.

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Speaker 4: So what statued win? Oh, here are the two arguments.

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Speaker 4: And this is the same argument in the Trump administration,

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Speaker 4: and we didn't get to the Supreme so we don't know.

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Speaker 4: So here are the two arguments. On one aspect of

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Speaker 4: the asylum statue, it very clearly says that anybody in

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Speaker 4: the US, no matter how they got here, can apply

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Speaker 4: for asylum. And so the idea is because the statue

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Speaker 4: specifically says that, the ACLU is saying you can't ban

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Speaker 4: someone from accessing the asylum system because they came here

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Speaker 4: in between the ports of entry illegally. The whole point

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Speaker 4: is the statue specifically said that they can do that,

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Speaker 4: and so why would you ban that? And then there's

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Speaker 4: another part of the statute that says, here are all

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Speaker 4: the reasons you can be banned from getting asylum, and

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Speaker 4: it lays out that you committed a significant crime, that

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Speaker 4: you persecuted other people. There's a whole list. But then

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Speaker 4: there's a catchall that says the Secretary of Homeland Security

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Speaker 4: can add by regulation additional factors. And so the question

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Speaker 4: is can this factor be added as an additional factor

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Speaker 4: or can it not be added as an additional factor

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Speaker 4: banning p perform asylum. And that's really the question.

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Speaker 5: At the end of the day, I want to talk about.

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Speaker 2: The situation in New York. Mayor Adams bashed the White

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Speaker 2: House and congressional Republicans early this month over the situation,

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Speaker 2: saying that it shouldn't be the cities that have to

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Speaker 2: deal with this, the federal government should be intervening to help.

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Speaker 4: I mean, the problem is the confluence of factors that

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Speaker 4: have very little here to do with the federal government.

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Speaker 4: You have state paying for people to take buses to

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Speaker 4: New York City and other cities, so then people arrive

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Speaker 4: at the bus stations, and then the question is if

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Speaker 4: people do not have a home in New York City,

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Speaker 4: what do you do with suddenly seventy five people who

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Speaker 4: just arrived at a bus station who have nowhere to

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Speaker 4: go and no money. And so that's the talent. And

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Speaker 4: so from the New York City perspective, they have two

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Speaker 4: places they can go. They can either house people until

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Speaker 4: they figure out Plan B, or they can create a

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Speaker 4: much more robust logistics network to figure out where the

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Speaker 4: final destinations of these individuals was. Because very few people

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Speaker 4: don't have someplace somebody who told them when you get

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Speaker 4: to America, contacts this person, and then they'd have to

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Speaker 4: pay for the transportation logistics to get the person to

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Speaker 4: that location. Now, people may say, well that's expensive getting

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Speaker 4: a person get another flight or a bus or something else,

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Speaker 4: but it's far more expensive to house people for weeks

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Speaker 4: and weeks at hotels. So I think if the Adams

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Speaker 4: administration wants to get out from under housing people, then

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Speaker 4: the way to do this is to have a very

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Speaker 4: robust transportation logistics framework immediately where people the second they

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Speaker 4: get off the bus are basically asked where is the

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Speaker 4: address you're trying to get to and get people as

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Speaker 4: close to that address as possible. I mean, you don't

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Speaker 4: have to take people door to door, but get people

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Speaker 4: closer to those locations, whether it be by bus or

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Speaker 4: train or a plane, and at least that way you're

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Speaker 4: not paying for housing in that situation. If you built

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Speaker 4: with city employees, basically what the equivalent would be of

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Speaker 4: some sort of rapid response travel task force that would

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Speaker 4: get the logistics of where the people wanted to go,

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Speaker 4: and you would say, look, there's no way you came

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Speaker 4: into the United States with literally zero people that you know.

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Speaker 4: You have to know somebody, and in fact, everybody knows

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Speaker 4: who's coming to the United States. That one of the

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Speaker 4: factors in whether you will say in detention or not

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Speaker 4: is if you don't have an address of a place

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Speaker 4: where you say you're going to go. So almost everybody

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Speaker 4: knows they have to have an address of some contact person,

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Speaker 4: and so the question is what is that contact address

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Speaker 4: that's been given Get people to that contact address.

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Speaker 2: So in order to be let out attention, you have

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Speaker 2: to have an address. So the people who are being

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Speaker 2: bussed up actually have an address.

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Speaker 4: They have an address that they've given to the federal

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Speaker 4: government as the kind of tax address where they're going

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Speaker 4: to be able to have mail sense to them. At

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Speaker 4: least theoretically at the beginning of this until they theoretically

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Speaker 4: filing change of address. Now, how many people do that

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Speaker 4: is a question that's up for debate because the stats

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Speaker 4: are very difficult to keep on these things. You don't

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Speaker 4: know until you know someone doesn't show up the court.

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Speaker 4: That's when you find out they didn't file the change

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Speaker 4: of address. So it's hard to know exactly what the

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Speaker 4: statistic how many people are filing them or not filing them.

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Speaker 4: But there is an address that people are giving to

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Speaker 4: get out from under detention, and so the question is

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Speaker 4: if you're giving an address, then you should have to

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Speaker 4: be prepared to be transported to that address.

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Speaker 2: So why can't the federal government then transport the migrants

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Speaker 2: to the states where they have the address.

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Speaker 4: Well, I think what's happening is that they're being short

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Speaker 4: circuited by Texas and maybe now Florida, who's actually just

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Speaker 4: putting people on buses just to put them on buses,

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Speaker 4: and so it's creating a distortion from where people should

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Speaker 4: be going. But how do you deal with that? And

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Speaker 4: so either the federal government is going to have to

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Speaker 4: get much more involved in the logistics of this. So

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Speaker 4: I have to not let Texas and Florida and others

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Speaker 4: put people on buses, or the cities are going to

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Speaker 4: have to themselves get involved in the transportation logistics of this.

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Speaker 4: You know, there are some issues in the immigration sphere

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Speaker 4: where all of your solutions are bad. So I'll give

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Speaker 4: you an example of this. Everybody who talks about well,

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Speaker 4: the way you solve the immigration problem is, you know,

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Speaker 4: attack the root causes of immigration. People keep saying this.

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Speaker 4: Every time I tuck to you June, for the last

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Speaker 4: few years, I said the same thing to you, which is,

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Speaker 4: how do you do that? There's like twenty country sending

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Speaker 4: people right now, what does that even mean? You know,

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Speaker 4: attack the root causes. From that standpoint, that's nonsense. That's

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Speaker 4: an unsolvable problem that people are sending people here. But

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Speaker 4: it's definitely a solvable problem that people are showing up

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Speaker 4: to New York City and have nowhere to go. So

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Speaker 4: the question is do you solve that at the Texas

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Speaker 4: border or do you solve that somewhere else. That's going

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Speaker 4: to be up to the federal government working with these

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Speaker 4: cities to figure out who they want to be responsible

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Speaker 4: for getting people to the address that they said was

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Speaker 4: their address. I mean, what the federal government appears to

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Speaker 4: have done is to up the SIMA emergency shelter brands

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Speaker 4: to the cities by three hundred million dollars, which leads

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Speaker 4: me to belief that they want the cities solving it

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Speaker 4: on their end rather than having the federal government get

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Speaker 4: involved in this.

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Speaker 2: As always, it's a pleasure to have you on Leon.

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Speaker 2: Thanks so much. That's Leon Fresco, a Partnert hollanden Knight.

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Speaker 2: In a case that could help determine which party controls

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Speaker 2: the House over the next decade, the Supreme Court will

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Speaker 2: consider reinstating a Republican drawn congressional map in South Carolina.

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Speaker 2: The Justice has said they'd review a lower court ruling

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Speaker 2: that found a coastal district running from Charleston to Hilton

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Speaker 2: Head was intentionally redrawn to reduce the number of black

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Speaker 2: voters and to make it more like that Republican candidates

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Speaker 2: would win. Joining me is elections law expert Richard Brofald,

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Speaker 2: a professor at Columbia Law School. A federal three judge

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Speaker 2: panel said the strategies in drawing this South Carolina district's

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Speaker 2: boundaries had unconstitutionally exiled thirty thousand black voters. Tell us

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Speaker 2: what the federal panel found.

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Speaker 5: Well, basically that this was part of the twenty twenty

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Speaker 5: two redistricting in South Carolina. The district involved is basically

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Speaker 5: the win around the Charleston area, and the court found

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Speaker 5: a panel in the legislature had redrawn the lines. So

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Speaker 5: it's to remove about thirty thousand black voters from the

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Speaker 5: district and put them in an adjacent district, which would

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Speaker 5: have the effect also but basically making it a more

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Speaker 5: republican district.

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Speaker 2: Tell us the history of this district. It's consistently elected

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Speaker 2: Republicans for almost four decades.

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Speaker 5: But a Democrat won in twenty eighteen, and then Republicans

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Speaker 5: took it back in twenty twenty, but by a very

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Speaker 5: narrow margin. So I think one of the ideas he

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Speaker 5: was to make it more safety Republican.

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Speaker 2: The NAACP said, a person can't drive from one end

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Speaker 2: of the coastal district to another without going through the

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Speaker 2: neighboring sixth the district.

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Speaker 5: Well, the way the lines are drawn is that, in fact,

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Speaker 5: there were like tentacles from that kind of project from

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Speaker 5: one of the jacent districts into this district, and so

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Speaker 5: it was a departure from the traditional boundaries of this district.

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Speaker 5: Although the district I think presumably satisfies the standard requirements

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Speaker 5: of it being contiguous to presuming you can go from

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Speaker 5: one part to any other part of the district, but

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Speaker 5: it could also be the easier way to go from

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Speaker 5: one part to the other is to go through the

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Speaker 5: neighboring district.

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Speaker 2: Oftentimes, when they draw districts, I mean, you don't see like, oh,

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Speaker 2: a square or a circle. You see some really crazy shapes.

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Speaker 5: I mean, given them the strainers of the shapes that

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Speaker 5: we see, I'm not sure this one would necessarily qualify

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Speaker 5: as one of the most bizarre or strange be shaped.

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Speaker 5: But the argument that the plaintiffs made, which the court

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Speaker 5: agreed with, was that it was purposefully on to remove

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Speaker 5: black voters. And that is what the court found, and

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Speaker 5: the plaintiffs basically said, if you ran alternative maps simulations,

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Speaker 5: as a standard technique today in dealing with districting claims

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Speaker 5: is to generate alternative maps that satisfy the other legal

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Speaker 5: requirements of contiguity of equal population of maintaining neighborhoods. Intact,

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Speaker 5: that running a string of like a thousand alternative maps,

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Speaker 5: this one removed more black voters than any other map.

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Speaker 2: So the South Carolina Republicans said the panel made a

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Speaker 2: series of legal errors, and it said Republicans were motivated

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Speaker 2: by politics, which is permissible, not race.

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Speaker 5: Yes, that is the irony. In the last decade's worth

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Speaker 5: of redistricting fights, particularly but not exclusively, in the Southern districts.

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Speaker 5: The Supreme Court has said that racial gerry mannering is unconstitutional,

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Speaker 5: but partisan jerry mannering is constitutional, or at least it

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Speaker 5: can't be challenged in court. Yet, race and party are

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Speaker 5: very closely intertwined, and so in many of the redistricting

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Speaker 5: case is particularly those coming out of the South, where

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Speaker 5: you've seen Republican legislatures moving black voters out of districts

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Speaker 5: in order to make them more Republican. But their art

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Speaker 5: argument has been, well, it wasn't because of their race,

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Speaker 5: was because of their party, So that this was partisan

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Speaker 5: jerry mannering, which is okay, but not racial jerry mentoring,

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Speaker 5: which is not okay. Even though it's very hard to

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Speaker 5: tell the to a part.

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Speaker 2: Yeah, the challengers in a brief set the predominant reliance

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Speaker 2: on race is impermissible, even if map makers used race

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Speaker 2: as a proxy for politics, and that has been.

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Speaker 5: The finding of several other lower courts, So that is

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Speaker 5: a legitimate argument. The South Carolina legislature is sort of

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Speaker 5: pushing back as saying, well, you didn't give us credit

438
00:23:39,800 --> 00:23:42,840
Speaker 5: for quod faith. You're supposed to basically accept what the

439
00:23:42,920 --> 00:23:46,240
Speaker 5: legislature does unless you can prove that it was done

440
00:23:46,280 --> 00:23:49,080
Speaker 5: with racial intent. And the plaintiffs were basically said, well,

441
00:23:49,119 --> 00:23:51,080
Speaker 5: look at the numbers, look at the effects, and look

442
00:23:51,080 --> 00:23:53,840
Speaker 5: at the existence of alternative maps. So this will be

443
00:23:53,960 --> 00:23:58,080
Speaker 5: yet another challenge for the court to try and disentangle

444
00:23:58,440 --> 00:24:02,040
Speaker 5: racial motivation from part of the motivation, which is really

445
00:24:02,119 --> 00:24:04,239
Speaker 5: the problem they've set up for themselves by saying that

446
00:24:04,480 --> 00:24:08,600
Speaker 5: racially motivated districting is unconstitutional, but part of in districting

447
00:24:09,160 --> 00:24:12,320
Speaker 5: is not challengeable, and yet the two are also identical.

448
00:24:12,880 --> 00:24:18,520
Speaker 2: How does one prove that districting was racially motivated.

449
00:24:19,240 --> 00:24:21,760
Speaker 5: Well, what the plaintiff did in this case is basically

450
00:24:22,080 --> 00:24:25,480
Speaker 5: run alternative maps. I mean that is another standard form

451
00:24:25,520 --> 00:24:28,879
Speaker 5: of litigation now because of the availability of high power

452
00:24:28,920 --> 00:24:32,160
Speaker 5: computers with massive amounts of data, is that you can

453
00:24:32,200 --> 00:24:37,200
Speaker 5: basically put in an algorithm which says equal population maintaining

454
00:24:37,200 --> 00:24:41,159
Speaker 5: communities of interest maintaining the contiguity of the district and

455
00:24:41,240 --> 00:24:44,360
Speaker 5: wrong like a thousand other maps, and they say they

456
00:24:44,400 --> 00:24:48,320
Speaker 5: did that, and this one actually what the legislature did

457
00:24:48,800 --> 00:24:51,960
Speaker 5: remove more black voters than any other or almost any

458
00:24:52,000 --> 00:24:54,960
Speaker 5: other map that you could show, and so therefore what

459
00:24:55,040 --> 00:24:57,159
Speaker 5: was going on he was the removable black voters.

460
00:24:57,560 --> 00:25:00,840
Speaker 2: The three judge panel did reject check challenges to two

461
00:25:00,880 --> 00:25:04,520
Speaker 2: other House voting districts, saying that the civil rights groups

462
00:25:04,520 --> 00:25:07,960
Speaker 2: had failed to demonstrate that the districts had been predominantly

463
00:25:08,040 --> 00:25:11,320
Speaker 2: drawn to dilute black voting power. Does that help the

464
00:25:11,520 --> 00:25:13,520
Speaker 2: challenger's case any It might?

465
00:25:13,640 --> 00:25:16,080
Speaker 5: I mean it basically shows that the three judge court

466
00:25:16,119 --> 00:25:18,159
Speaker 5: was not a rubber stamp for the plaintiffs and that

467
00:25:18,240 --> 00:25:20,639
Speaker 5: they kind of carefully went through the evidence and said, well,

468
00:25:20,920 --> 00:25:23,240
Speaker 5: what happened in the other districts was not extreme enough

469
00:25:23,280 --> 00:25:26,800
Speaker 5: to prove racial motivation, but in this district it was

470
00:25:26,840 --> 00:25:29,320
Speaker 5: so clear that we found it. I think it actually

471
00:25:29,359 --> 00:25:30,520
Speaker 5: is helpful to the plaintiffs.

472
00:25:30,680 --> 00:25:33,160
Speaker 2: It does it seem as if the Supreme Court took

473
00:25:33,200 --> 00:25:35,600
Speaker 2: this case to reverse the federal panel.

474
00:25:35,960 --> 00:25:38,760
Speaker 5: It's hard to say. I think under federal election law,

475
00:25:38,960 --> 00:25:42,879
Speaker 5: the court basically has mandatory jurisdiction over appeals of federal

476
00:25:42,960 --> 00:25:46,960
Speaker 5: courts knocking out district Now they could affirm summarily, and

477
00:25:47,040 --> 00:25:49,600
Speaker 5: they did not do that, So they may be interested

478
00:25:49,640 --> 00:25:52,159
Speaker 5: in this case. But cases like this often go to

479
00:25:52,240 --> 00:25:54,920
Speaker 5: the Supreme Court, and it will be a challenge, I think,

480
00:25:54,960 --> 00:25:58,800
Speaker 5: to figure out the distinction between race and party in

481
00:25:58,840 --> 00:26:01,040
Speaker 5: a world or in a politics where the two are

482
00:26:01,040 --> 00:26:01,800
Speaker 5: often merged.

483
00:26:03,960 --> 00:26:07,760
Speaker 2: If partisan gerrymandering is allowed, then the group that's in

484
00:26:07,880 --> 00:26:12,720
Speaker 2: power can consistently revise maps so that they keep their power.

485
00:26:13,400 --> 00:26:16,560
Speaker 5: That is a very legitimate and troubling concern, and that

486
00:26:16,720 --> 00:26:19,560
Speaker 5: was one of the main arguments in favor of supporting

487
00:26:19,760 --> 00:26:23,200
Speaker 5: the idea of judicial review of partisan jerrymandering, as otherwise

488
00:26:23,240 --> 00:26:26,120
Speaker 5: you get a lock up and once a group gets

489
00:26:26,119 --> 00:26:29,640
Speaker 5: elected to office, they're able to sustain themselves by manipulating

490
00:26:29,640 --> 00:26:32,800
Speaker 5: the boundaries. Unfortunately, the Supreme Court was not persuaded by

491
00:26:32,840 --> 00:26:36,160
Speaker 5: that argument. In the Ruco decision in twenty nineteen, Spring

492
00:26:36,200 --> 00:26:39,680
Speaker 5: Court basically said, we don't have a standard for reviewing

493
00:26:39,760 --> 00:26:43,640
Speaker 5: districting that allows us to tell what's a permissible use

494
00:26:43,680 --> 00:26:46,440
Speaker 5: of party and what's a nonconstitutional one, and so we're

495
00:26:46,480 --> 00:26:49,240
Speaker 5: not going to do it. That was the court's reasoning

496
00:26:49,280 --> 00:26:49,879
Speaker 5: in that case.

497
00:26:50,280 --> 00:26:53,280
Speaker 2: But there's another case involving redistricting.

498
00:26:52,640 --> 00:26:56,280
Speaker 5: And race in Alabama. Yes, that's slightly different. Indeed, it's

499
00:26:56,320 --> 00:26:58,800
Speaker 5: almost I wouldn't say it's reverse, but it's slightly different.

500
00:26:59,320 --> 00:27:03,560
Speaker 5: They're thelegislature drew lines there. The perspective is on Alabama

501
00:27:03,560 --> 00:27:06,240
Speaker 5: as a whole. So this case about South Carolina focuses

502
00:27:06,280 --> 00:27:08,480
Speaker 5: on one district. This focus is on District one in

503
00:27:08,520 --> 00:27:11,960
Speaker 5: South Carolina. In Alabama, the focus was on the state

504
00:27:12,000 --> 00:27:14,920
Speaker 5: as a whole, and the state is something like, I

505
00:27:14,920 --> 00:27:17,320
Speaker 5: don't know, twenty seven to twenty eight percent African American.

506
00:27:17,760 --> 00:27:20,639
Speaker 5: There are seven congressional districts. Only one has had a

507
00:27:20,680 --> 00:27:23,440
Speaker 5: black majority. The plaintiffs said that you could easily have

508
00:27:23,520 --> 00:27:26,680
Speaker 5: drawn two, and they basically came up with a map

509
00:27:26,720 --> 00:27:29,600
Speaker 5: that showed that, and they were able to persuade the

510
00:27:29,640 --> 00:27:32,840
Speaker 5: lower court. That's being challenged by the legislature, which says

511
00:27:33,119 --> 00:27:36,480
Speaker 5: you didn't show that our failure to draw two districts

512
00:27:36,800 --> 00:27:39,480
Speaker 5: was racially motivated. The plaintiff's claim is based under the

513
00:27:39,560 --> 00:27:42,959
Speaker 5: Voting Rights Act, which relies on effects rather than intent,

514
00:27:43,480 --> 00:27:46,480
Speaker 5: and in the Alabama case, what the legislature is defending

515
00:27:46,520 --> 00:27:48,840
Speaker 5: by saying is that there was no evidence that what

516
00:27:48,880 --> 00:27:51,520
Speaker 5: we did was racially motivated. The plaintiffs is saying that's

517
00:27:51,560 --> 00:27:53,800
Speaker 5: not important. What we can do is show that there

518
00:27:53,840 --> 00:27:59,000
Speaker 5: was an equal population, contiguous district which doesn't too much

519
00:27:59,080 --> 00:28:02,400
Speaker 5: depart from county lines, although in Italy it's different from the

520
00:28:02,440 --> 00:28:04,720
Speaker 5: prior districts that have been drawn in this state, but

521
00:28:04,800 --> 00:28:07,560
Speaker 5: which we think would give better representation to black voters.

522
00:28:08,160 --> 00:28:12,600
Speaker 2: Explain how the Supreme Court has been rolling back protections

523
00:28:13,240 --> 00:28:14,880
Speaker 2: for minority voters.

524
00:28:15,720 --> 00:28:18,480
Speaker 5: Well, Supreme Court did one major thing, which is the

525
00:28:18,520 --> 00:28:22,399
Speaker 5: Supreme Court struck down the provision in the nineteen sixty

526
00:28:22,400 --> 00:28:25,120
Speaker 5: five Voting Right Back, which was renewed several times over,

527
00:28:25,359 --> 00:28:29,080
Speaker 5: including in two thousand and six, which requires that in

528
00:28:29,160 --> 00:28:32,199
Speaker 5: certain states and counties which have had a history of

529
00:28:32,280 --> 00:28:36,000
Speaker 5: voting discrimination, that any changes in their voting rules and

530
00:28:36,200 --> 00:28:39,400
Speaker 5: the voting practices and procedures have to be pre approved

531
00:28:39,480 --> 00:28:42,120
Speaker 5: by either Department of Justice or a federal district court,

532
00:28:42,280 --> 00:28:44,360
Speaker 5: and the state or a community that's making the change

533
00:28:44,480 --> 00:28:47,120
Speaker 5: has to prove it has no discriminatory intent to effect.

534
00:28:47,320 --> 00:28:50,120
Speaker 5: That was called preclearance, and that operated to prevent a

535
00:28:50,160 --> 00:28:53,320
Speaker 5: lot of discriminatory measures, particularly but not only in the South.

536
00:28:53,600 --> 00:28:56,520
Speaker 5: The Supreme Court struck that down in twenty fourteen, saying

537
00:28:56,600 --> 00:28:59,400
Speaker 5: that the problem was that Congress continued to adhere to

538
00:28:59,440 --> 00:29:02,280
Speaker 5: the formula for deciding what was a community that had

539
00:29:02,320 --> 00:29:05,360
Speaker 5: to go through preclearance, and that formula hadn't been reviewed

540
00:29:05,360 --> 00:29:07,920
Speaker 5: and reconsidered it with the nineteen seventies. So the Court said,

541
00:29:07,920 --> 00:29:10,240
Speaker 5: it just can't be right that it's still the same formula.

542
00:29:10,320 --> 00:29:13,240
Speaker 5: So that was a major blow that eliminated the ability

543
00:29:13,240 --> 00:29:16,880
Speaker 5: of plaintiffs to challenge changes before they took effect and

544
00:29:16,920 --> 00:29:19,320
Speaker 5: to put the burden of defending the changes on the

545
00:29:19,360 --> 00:29:21,800
Speaker 5: state or city making the change. So that was a

546
00:29:21,920 --> 00:29:24,360
Speaker 5: very important decision and one that I think it's been

547
00:29:24,360 --> 00:29:26,360
Speaker 5: a much harder for platiffs and voting rights cases to win.

548
00:29:26,600 --> 00:29:28,920
Speaker 5: The other case, a case in coming out of Arizona

549
00:29:28,960 --> 00:29:31,320
Speaker 5: about two years ago called Burnovitch, was less of a

550
00:29:31,400 --> 00:29:33,480
Speaker 5: roll back but more of a creation of the barriers

551
00:29:33,720 --> 00:29:37,600
Speaker 5: to challenging voting laws that make it harder for people

552
00:29:37,600 --> 00:29:40,479
Speaker 5: to actually cast a vote was going on in the

553
00:29:40,520 --> 00:29:44,080
Speaker 5: section five case. The preclearance case was essentially about districting,

554
00:29:44,320 --> 00:29:46,640
Speaker 5: which is also what this case is about. The cases

555
00:29:46,640 --> 00:29:49,880
Speaker 5: both in Alabama and South Carolina. But in recent years

556
00:29:49,920 --> 00:29:51,920
Speaker 5: we've seen a lot of states adopting rules that make

557
00:29:51,960 --> 00:29:54,800
Speaker 5: it harder to be able to vote, including things dealings

558
00:29:54,800 --> 00:29:57,960
Speaker 5: stay with the voter id or rules governing early voting

559
00:29:58,000 --> 00:30:01,240
Speaker 5: or absentee ballots. And the one question was, you know,

560
00:30:01,320 --> 00:30:03,840
Speaker 5: under the voting right sack a claim is often made

561
00:30:03,880 --> 00:30:07,320
Speaker 5: that these burden voters of color more heavily than white voters.

562
00:30:07,800 --> 00:30:10,000
Speaker 5: And then the Bernovich case in Arizona, the Serreme Court

563
00:30:10,040 --> 00:30:12,600
Speaker 5: essentially we're going to really increase the burden of proof

564
00:30:12,880 --> 00:30:16,040
Speaker 5: on plaintiffs challenging these rules to show that, in fact,

565
00:30:16,080 --> 00:30:18,200
Speaker 5: these rules have a discriminatory effect.

566
00:30:18,960 --> 00:30:23,720
Speaker 2: And what's the status of morv. Harper, the case that

567
00:30:24,000 --> 00:30:29,800
Speaker 2: was advancing the controversial independent state legislature theory. Do we

568
00:30:29,840 --> 00:30:31,000
Speaker 2: know yet what's happening with that?

569
00:30:31,800 --> 00:30:34,040
Speaker 5: No? The court expert, as you know. Morphy Harper was

570
00:30:34,080 --> 00:30:37,760
Speaker 5: the case that raised the so called independent state legislature theory,

571
00:30:38,200 --> 00:30:41,040
Speaker 5: which is the idea that some people have argued is

572
00:30:41,040 --> 00:30:45,920
Speaker 5: that when it comes to federalist congressional redistricting, only state

573
00:30:46,000 --> 00:30:48,120
Speaker 5: legislatures can do it because of some language in the

574
00:30:48,120 --> 00:30:53,280
Speaker 5: Constitution which implies that as opposed to state courts interpreting

575
00:30:53,360 --> 00:30:59,080
Speaker 5: state constitutions to prohibit partisan gerrymandering even in congressional elections,

576
00:30:59,440 --> 00:31:02,960
Speaker 5: and that case, the North Carolina Supreme Court struck down

577
00:31:03,400 --> 00:31:06,440
Speaker 5: the Congressional distrestingc Plan for North Carolina, finding that it

578
00:31:06,520 --> 00:31:09,320
Speaker 5: was a partisan Republican jerry mander, and the North Carolina

579
00:31:09,400 --> 00:31:12,840
Speaker 5: Legislature challenged that, saying North Carolina Supreme Court didn't have

580
00:31:12,840 --> 00:31:16,000
Speaker 5: the authority under the North Carolina Constitution, that this is

581
00:31:16,040 --> 00:31:18,640
Speaker 5: a matter solely for the legislature as a matter of

582
00:31:18,680 --> 00:31:21,520
Speaker 5: the US Constitution. Supreme Court agreed to hear that case

583
00:31:21,560 --> 00:31:23,920
Speaker 5: and actually heard oral argument for like two and a

584
00:31:23,960 --> 00:31:27,560
Speaker 5: half hours back in the fall. Three Court hasn't decided

585
00:31:27,600 --> 00:31:30,200
Speaker 5: this case yet. In the meantime, as a result of

586
00:31:30,200 --> 00:31:33,320
Speaker 5: the twenty twenty two elections, the composition of the North

587
00:31:33,320 --> 00:31:36,920
Speaker 5: Carolina Supreme Court changed hands, and the court very recently

588
00:31:37,240 --> 00:31:41,200
Speaker 5: basically reversed its decision and said that the legislature's plan

589
00:31:41,320 --> 00:31:44,920
Speaker 5: is not a jerrymander on the North Carolina Constitution, that

590
00:31:44,920 --> 00:31:47,880
Speaker 5: the North Carolina Constitution does not prohibit jerrymanders. So the

591
00:31:48,080 --> 00:31:50,280
Speaker 5: US Supreme Court asked for briefing on the question whether

592
00:31:50,280 --> 00:31:52,520
Speaker 5: they still have jurisdiction whether they should go ahead and

593
00:31:52,560 --> 00:31:55,080
Speaker 5: decide this case or not. I think those priests are

594
00:31:55,120 --> 00:31:57,840
Speaker 5: submitted only recently. Well, imagine we'll get a decision one

595
00:31:57,840 --> 00:31:59,960
Speaker 5: way or the other. Either court was saying we don't

596
00:32:00,200 --> 00:32:03,560
Speaker 5: jurisdiction dismissing the case or report We'll hold onto the

597
00:32:03,560 --> 00:32:06,360
Speaker 5: case and decide it, but we may not know until

598
00:32:06,360 --> 00:32:07,520
Speaker 5: the end of June. Possibly.

599
00:32:07,920 --> 00:32:09,960
Speaker 2: Thanks so much for being on the show. Rich that's

600
00:32:10,040 --> 00:32:13,600
Speaker 2: Professor Richard Brafult of Columbia Law School, and that's it

601
00:32:13,680 --> 00:32:16,240
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

602
00:32:16,280 --> 00:32:18,760
Speaker 2: can always get the latest legal news on our Bloomberg

603
00:32:18,840 --> 00:32:22,440
Speaker 2: Law podcast. You can find them on Apple Podcasts, Spotify,

604
00:32:22,640 --> 00:32:27,680
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

605
00:32:28,080 --> 00:32:30,640
Speaker 2: and remember to tune into The Bloomberg Law Show every

606
00:32:30,720 --> 00:32:34,600
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,

607
00:32:34,760 --> 00:32:36,360
Speaker 2: and you're listening to Bloomberg