Speaker 1: We've already removed thousands of people who have arrived at
Speaker 1: our southern border. We are enforcing our traditional immigration enforcement
Speaker 1: authorities under Title eight of the United States Code.
Speaker 2: The chaos expected at the border after the end of
Speaker 2: Title forty two has not materialized so far, and Homeland
Speaker 2: Security Secretary Alejandro Majorkis credits the Biden administration's new tougher
Speaker 2: asylum policies and expanded legal pathways to enter the country.
Speaker 2: But from New York to Chicago to Denver, cities are
Speaker 2: scrambling to accommodate more migrants as Texas Governor Greg Abbott
Speaker 2: continues to bus asylum seekers from the southern border to
Speaker 2: sanctuary cities. New York City Mayor Eric Adams had some
Speaker 2: harsh words for people criticizing the city's decision to house
Speaker 2: thousands of migrants in hotels.
Speaker 3: So, whomever said, don't go to a hotel on this
Speaker 3: don't go to a hotel on that block. If you're
Speaker 3: just telling me that, then I need for you to
Speaker 3: tell me where to go.
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
Speaker 2: at hollanden Knight. So Leon, let's start with the end
Speaker 2: of Title forty two. The number of migrants encountered at
Speaker 2: the southern border fell fifty percent during the last three days.
Speaker 2: You know, everyone was anticipating that there would be a
Speaker 2: surge at the border.
Speaker 4: I think for a lot of people, there's a way
Speaker 4: to see approach that they're operating with, which is that
Speaker 4: they want to see a are there going to be
Speaker 4: a sufficient number of the CBP one appointment on the
Speaker 4: border that people can use to access the process legally
Speaker 4: without needing to access the process illegally. Be what's going
Speaker 4: to happen to people who sort of test the system
Speaker 4: and put their finger in the plug, so to speak.
Speaker 4: Are they going to get an electric shock or not?
Speaker 4: And I think people are waiting to see how people
Speaker 4: are being treated who cross the border. Are they being
Speaker 4: thrown into detention? Are they being allowed to be released?
Speaker 4: And I think as people start to see to the
Speaker 4: extent possible that there's not enough detention space to put
Speaker 4: everyone in the tension, I think you'll see an uptick
Speaker 4: on the numbers there. And I think people are also
Speaker 4: trying to see what this thing means that you're not
Speaker 4: eligible for asylum, and I think they don't really understand
Speaker 4: it quite yet. But what they figure out what that
Speaker 4: means is that many years down the road, your court
Speaker 4: case is going to be harder, but there's not really
Speaker 4: a bar per se on bringing you into the country.
Speaker 4: I think you'll see these numbers increase. But for what
Speaker 4: you're seeing right now for the moment is sort of
Speaker 4: a feeling out process because people don't really understand the
Speaker 4: incentive structure and what is the best way to operate
Speaker 4: within this current incentive structure.
Speaker 2: So explain what the Biden plan is or what the
Speaker 2: enforcement mechanisms in place are.
Speaker 4: The Biden Plan is trying to provide what's called a
Speaker 4: carrot and six approach and what it's trying to say,
Speaker 4: And of course all of this is subject to litigation,
Speaker 4: but let's just say with what their ideal plan would be.
Speaker 4: If nothing was enjoyed by the court, their ideal plan
Speaker 4: would be on the carrot end. There's two ways to
Speaker 4: access carrots. Number one is to get an appointment online
Speaker 4: to go to a port of entry and ask for
Speaker 4: asylum at the port of entry. And the reason for
Speaker 4: that is because if you cross in between the ports illegally,
Speaker 4: you create much more strain on the system. You have
Speaker 4: to have border patrol people come and get you and
Speaker 4: put you in a detention facility, and they don't know
Speaker 4: how many people are coming and they can't plan for it.
Speaker 4: Whereas if you access the system legally, we know on
Speaker 4: any given day there's going to be this many people
Speaker 4: that come through per day. They're going to be coming
Speaker 4: in through these ports, and then they can be planned for.
Speaker 4: So the idea is, do that and you'll be able
Speaker 4: to access the asylum system if you actually have a
Speaker 4: credible fear of person secution in your home country. Alternatively,
Speaker 4: you can apply at least for so long as it exists,
Speaker 4: which might be another month or so, or maybe the
Speaker 4: court will rule that Bison can do this. But for
Speaker 4: these thirty thousand parole slots per month from Venezuela, let
Speaker 4: you buy Nicaragua and Haiti, and if you apply for
Speaker 4: those parole slots, then you can actually access the system
Speaker 4: legally without even needing an asylum plane. You just get
Speaker 4: into one of the slots and you can come into
Speaker 4: the United States, or you can make an asilent claim
Speaker 4: at one of these two processing sensors that's opening up
Speaker 4: either in Colombia or in Central America, and in those sensors,
Speaker 4: you can make your claim, and if you have a
Speaker 4: legitimate asylum plane, you can be brought into the United
Speaker 4: States as a refugee. You automatically win your case. You
Speaker 4: don't even need to go into court in that situation.
Speaker 4: And so those are the ideas and as opposed to that,
Speaker 4: if you cross illegally without any announcement or any permission,
Speaker 4: then what the Biden administration will do is theoretically, the
Speaker 4: threat of the terrence that they're putting is they're saying
Speaker 4: you won't be able to access the asylum system, which
Speaker 4: doesn't mean you can't say it just means you have
Speaker 4: a harder evidentiary burden to get this thing called withholding
Speaker 4: of removal, which doesn't give you a past to citizenship.
Speaker 4: It just allows you to stay temporarily while the conditions
Speaker 4: in your country remain dangerous to you. And that's all
Speaker 4: you're going to be able to get, which means you
Speaker 4: can't position for any family members, you won't ever be
Speaker 4: able to access a green card or be able to
Speaker 4: get any of the benefits that come with a green
Speaker 4: card or citizenship. And the question is how much of
Speaker 4: a long term deterrent is going to be versus if
Speaker 4: people don't have access to these other carrots, either because
Speaker 4: they get taken away from the courts or what happens
Speaker 4: is that there's too few carrots and too many people.
Speaker 4: They may just say, you know what, the fact that
Speaker 4: I could just come into America and wait six years
Speaker 4: for a coordinate is good enough for me. If six
Speaker 4: years later I can't get asylum, we'll deal with that then.
Speaker 4: And so that's the question. I think everybody's waiting to
Speaker 4: see how that shakes out on the border for the
Speaker 4: next few weeks.
Speaker 2: So the credible fear interview, does every migrant from let's say, Haiti, Venezuela,
Speaker 2: do they all pass the credible fear interview?
Speaker 4: Because you have to be able to articulate a fear
Speaker 4: from one of those countries that's based on your race,
Speaker 4: your religion, your nationality, your social group, or your political opinion.
Speaker 4: So at least from Cuba, Venezuela, and Nicaragua, those currently
Speaker 4: have repressive governments. So if you articulate anything like I'm
Speaker 4: a political dissident, they know me and they're gonna arrest
Speaker 4: me if I come back because I was participating in
Speaker 4: x y or z protest. That's going to be enough
Speaker 4: to get you through the credible fear screening. For Haiti,
Speaker 4: it's a little bit tougher because the idea is that
Speaker 4: the political persecution is not necessarily the problem there. So
Speaker 4: you'd have to say that there were some gang or
Speaker 4: rebel paramilitary force or something like that that was trying
Speaker 4: to persecute you for some reasons. And so those are
Speaker 4: harder claims to make on the Haitian side. But the
Speaker 4: problem is on the Haitian side, even if you can't
Speaker 4: make that claim, there's only so few people that were
Speaker 4: being allowed to remove the Haiti right now, and so
Speaker 4: that's an issue of still people potentially being released just
Speaker 4: because there's not enough life and plots to remove people
Speaker 4: to Haiti.
Speaker 2: Let's talk about the lawsuits in Florida. The US is
Speaker 2: in litigation about whether it can release migrants without what's
Speaker 2: called unnoticed to appear. So what they've been doing is
Speaker 2: just releasing migrants from custody with instructions to report an
Speaker 2: immigration office in sixty days. Do they come back?
Speaker 4: Well, so we've gone through this, June. I don't know
Speaker 4: if you recall there's been two Supreme Court cases in
Speaker 4: the last two years shockingly enough, on the civil issue
Speaker 4: of whether when you get your notice for your hearing,
Speaker 4: does it have to have the correct date and time
Speaker 4: on it? I don't know.
Speaker 2: If you're ready, yes, I definitely do recall it.
Speaker 4: And so this issue has gone twice to the Supreme Court.
Speaker 4: Has created a major problem for the people down at
Speaker 4: the southern border, because how the heck are they supposed
Speaker 4: to know what the correct date and time should be
Speaker 4: for a hearing because they don't even know where what
Speaker 4: cities people are going to end up in, and so
Speaker 4: it becomes very complicated. So what the Border Patrol has
Speaker 4: wanted to do is to say, look, don't make this
Speaker 4: our problem, because we're not good at this. We can't
Speaker 4: figure out all the court systems and what date and
Speaker 4: what times and what cities because half of the folks
Speaker 4: don't even know where they're going to end up. And
Speaker 4: so from that perspective, what we want to do is
Speaker 4: give them an opportunity to get their bearings and then
Speaker 4: come back and report and get their date and time
Speaker 4: for their hearing. Now, of course, the problem is how
Speaker 4: many people are going to do that, get their bearing
Speaker 4: and voluntarily go to an ice second sixty years later
Speaker 4: at the city they end up in. I mean, it's
Speaker 4: a credible point to say that only the best intention
Speaker 4: the people are going to actually do that. And so
Speaker 4: it's really a damned if you do, damns if you
Speaker 4: don't situation, because yes, you can release people with a
Speaker 4: hearing notice, and that hearing notice ninety nine out of
Speaker 4: one hundred times is going to be worthless because it's
Speaker 4: going to be for a city that the people aren't
Speaker 4: even living in, and one day they're going to be
Speaker 4: in assentia in the court. They're not going to show
Speaker 4: up for their hearing, and many years later they'll be
Speaker 4: apprehended and strike to be deported and they'll say, I
Speaker 4: never got notice of my hearing. I didn't live in Toledo.
Speaker 4: I lived in Chicago, did Why did they assign me
Speaker 4: for Toledo. So the point is it's really about what
Speaker 4: is most effective to get people through the system, and
Speaker 4: Florida has taken the position at least get people a
Speaker 4: hearing date and a notice, and ICE is saying this
Speaker 4: is taking us too long. People are in detention. Sells
Speaker 4: huge overcrowd itself with fifty people in one toilet, while
Speaker 4: we're trying to figure this out, and it's not really,
Speaker 4: in the end, any more effective at creating the terrens
Speaker 4: than having the people show up to the ICE situations,
Speaker 4: because if these notices are useless, then they're just as
Speaker 4: useless as people not showing up to the ICE checkert.
Speaker 4: And so this is the tension on both sides of
Speaker 4: the argument.
Speaker 2: So leone tell us what the judge did that Florida case.
Speaker 4: What the Florida judge did is said, look, I recognize
Speaker 4: all of the practical and logistical concerns that you're saying,
Speaker 4: but at the end of the day, I cannot let
Speaker 4: you release people without giving them The law says what
Speaker 4: the law says. When the Attorney General is what it
Speaker 4: says in the statue, but now it's really the Secretary
Speaker 4: of Homeland Security encounters a person without status. They must
Speaker 4: detain the person, the statue says, must must detain the
Speaker 4: person and play them in removal proceedings, and then after
Speaker 4: that can make a decision about releasing them while the
Speaker 4: proceedings are pending. But they can't just ignore the person
Speaker 4: who's an undocumented status or parole the person in a
Speaker 4: documented status. Here's the question that's going to be the
Speaker 4: one that goes to the Supreme Court is can they
Speaker 4: parole the person? The Supreme Court hasn't said. The federal
Speaker 4: government thinks they can. This judge thinks that that's arbitrary
Speaker 4: and capricious, that you can't use parole as a way
Speaker 4: to enmas circumvent the requirement that's in the statute that
Speaker 4: when the government encounters an undocumented person, they have to
Speaker 4: detain them and place them in removal proceeding. You know,
Speaker 4: you could do parole on an individual, case by case basis,
Speaker 4: but when you do a whole system that's designed to
Speaker 4: circumvent this requirement, that that's arbitrary and capricious under the
Speaker 4: Administrative Procedure Act. So you can't do that. You can't
Speaker 4: just have an entire workaround for administrative convenience. And so
Speaker 4: that's what the judge in Florida said. The judge was
Speaker 4: going to save his own decision, but didn't in the end,
Speaker 4: now has kept it going. The Eleventh Circuit hasn't overturned
Speaker 4: it yet. So for the moment, the Biden administration is
Speaker 4: going to have to when it detains these individuals, keep
Speaker 4: them in the CDP holding cells until it can figure
Speaker 4: out what time and date to put on the hearing notice,
Speaker 4: to give them the hearing notice to have them go
Speaker 4: on to the next step of the process, which is
Speaker 4: the removal preceding process.
Speaker 2: The ACLU is trying to block Homeland Security from implementing
Speaker 2: Biden's policy, saying it closely resembles a Trump administration's policy
Speaker 2: that a court blocked. Tell me about that.
Speaker 4: So this is a very fascinating issue between two statues
Speaker 4: that are both legal and both conflict with one another.
Speaker 4: So what statued win? Oh, here are the two arguments.
Speaker 4: And this is the same argument in the Trump administration,
Speaker 4: and we didn't get to the Supreme so we don't know.
Speaker 4: So here are the two arguments. On one aspect of
Speaker 4: the asylum statue, it very clearly says that anybody in
Speaker 4: the US, no matter how they got here, can apply
Speaker 4: for asylum. And so the idea is because the statue
Speaker 4: specifically says that, the ACLU is saying you can't ban
Speaker 4: someone from accessing the asylum system because they came here
Speaker 4: in between the ports of entry illegally. The whole point
Speaker 4: is the statue specifically said that they can do that,
Speaker 4: and so why would you ban that? And then there's
Speaker 4: another part of the statute that says, here are all
Speaker 4: the reasons you can be banned from getting asylum, and
Speaker 4: it lays out that you committed a significant crime, that
Speaker 4: you persecuted other people. There's a whole list. But then
Speaker 4: there's a catchall that says the Secretary of Homeland Security
Speaker 4: can add by regulation additional factors. And so the question
Speaker 4: is can this factor be added as an additional factor
Speaker 4: or can it not be added as an additional factor
Speaker 4: banning p perform asylum. And that's really the question.
Speaker 5: At the end of the day, I want to talk about.
Speaker 2: The situation in New York. Mayor Adams bashed the White
Speaker 2: House and congressional Republicans early this month over the situation,
Speaker 2: saying that it shouldn't be the cities that have to
Speaker 2: deal with this, the federal government should be intervening to help.
Speaker 4: I mean, the problem is the confluence of factors that
Speaker 4: have very little here to do with the federal government.
Speaker 4: You have state paying for people to take buses to
Speaker 4: New York City and other cities, so then people arrive
Speaker 4: at the bus stations, and then the question is if
Speaker 4: people do not have a home in New York City,
Speaker 4: what do you do with suddenly seventy five people who
Speaker 4: just arrived at a bus station who have nowhere to
Speaker 4: go and no money. And so that's the talent. And
Speaker 4: so from the New York City perspective, they have two
Speaker 4: places they can go. They can either house people until
Speaker 4: they figure out Plan B, or they can create a
Speaker 4: much more robust logistics network to figure out where the
Speaker 4: final destinations of these individuals was. Because very few people
Speaker 4: don't have someplace somebody who told them when you get
Speaker 4: to America, contacts this person, and then they'd have to
Speaker 4: pay for the transportation logistics to get the person to
Speaker 4: that location. Now, people may say, well that's expensive getting
Speaker 4: a person get another flight or a bus or something else,
Speaker 4: but it's far more expensive to house people for weeks
Speaker 4: and weeks at hotels. So I think if the Adams
Speaker 4: administration wants to get out from under housing people, then
Speaker 4: the way to do this is to have a very
Speaker 4: robust transportation logistics framework immediately where people the second they
Speaker 4: get off the bus are basically asked where is the
Speaker 4: address you're trying to get to and get people as
Speaker 4: close to that address as possible. I mean, you don't
Speaker 4: have to take people door to door, but get people
Speaker 4: closer to those locations, whether it be by bus or
Speaker 4: train or a plane, and at least that way you're
Speaker 4: not paying for housing in that situation. If you built
Speaker 4: with city employees, basically what the equivalent would be of
Speaker 4: some sort of rapid response travel task force that would
Speaker 4: get the logistics of where the people wanted to go,
Speaker 4: and you would say, look, there's no way you came
Speaker 4: into the United States with literally zero people that you know.
Speaker 4: You have to know somebody, and in fact, everybody knows
Speaker 4: who's coming to the United States. That one of the
Speaker 4: factors in whether you will say in detention or not
Speaker 4: is if you don't have an address of a place
Speaker 4: where you say you're going to go. So almost everybody
Speaker 4: knows they have to have an address of some contact person,
Speaker 4: and so the question is what is that contact address
Speaker 4: that's been given Get people to that contact address.
Speaker 2: So in order to be let out attention, you have
Speaker 2: to have an address. So the people who are being
Speaker 2: bussed up actually have an address.
Speaker 4: They have an address that they've given to the federal
Speaker 4: government as the kind of tax address where they're going
Speaker 4: to be able to have mail sense to them. At
Speaker 4: least theoretically at the beginning of this until they theoretically
Speaker 4: filing change of address. Now, how many people do that
Speaker 4: is a question that's up for debate because the stats
Speaker 4: are very difficult to keep on these things. You don't
Speaker 4: know until you know someone doesn't show up the court.
Speaker 4: That's when you find out they didn't file the change
Speaker 4: of address. So it's hard to know exactly what the
Speaker 4: statistic how many people are filing them or not filing them.
Speaker 4: But there is an address that people are giving to
Speaker 4: get out from under detention, and so the question is
Speaker 4: if you're giving an address, then you should have to
Speaker 4: be prepared to be transported to that address.
Speaker 2: So why can't the federal government then transport the migrants
Speaker 2: to the states where they have the address.
Speaker 4: Well, I think what's happening is that they're being short
Speaker 4: circuited by Texas and maybe now Florida, who's actually just
Speaker 4: putting people on buses just to put them on buses,
Speaker 4: and so it's creating a distortion from where people should
Speaker 4: be going. But how do you deal with that? And
Speaker 4: so either the federal government is going to have to
Speaker 4: get much more involved in the logistics of this. So
Speaker 4: I have to not let Texas and Florida and others
Speaker 4: put people on buses, or the cities are going to
Speaker 4: have to themselves get involved in the transportation logistics of this.
Speaker 4: You know, there are some issues in the immigration sphere
Speaker 4: where all of your solutions are bad. So I'll give
Speaker 4: you an example of this. Everybody who talks about well,
Speaker 4: the way you solve the immigration problem is, you know,
Speaker 4: attack the root causes of immigration. People keep saying this.
Speaker 4: Every time I tuck to you June, for the last
Speaker 4: few years, I said the same thing to you, which is,
Speaker 4: how do you do that? There's like twenty country sending
Speaker 4: people right now, what does that even mean? You know,
Speaker 4: attack the root causes. From that standpoint, that's nonsense. That's
Speaker 4: an unsolvable problem that people are sending people here. But
Speaker 4: it's definitely a solvable problem that people are showing up
Speaker 4: to New York City and have nowhere to go. So
Speaker 4: the question is do you solve that at the Texas
Speaker 4: border or do you solve that somewhere else. That's going
Speaker 4: to be up to the federal government working with these
Speaker 4: cities to figure out who they want to be responsible
Speaker 4: for getting people to the address that they said was
Speaker 4: their address. I mean, what the federal government appears to
Speaker 4: have done is to up the SIMA emergency shelter brands
Speaker 4: to the cities by three hundred million dollars, which leads
Speaker 4: me to belief that they want the cities solving it
Speaker 4: on their end rather than having the federal government get
Speaker 4: involved in this.
Speaker 2: As always, it's a pleasure to have you on Leon.
Speaker 2: Thanks so much. That's Leon Fresco, a Partnert hollanden Knight.
Speaker 2: In a case that could help determine which party controls
Speaker 2: the House over the next decade, the Supreme Court will
Speaker 2: consider reinstating a Republican drawn congressional map in South Carolina.
Speaker 2: The Justice has said they'd review a lower court ruling
Speaker 2: that found a coastal district running from Charleston to Hilton
Speaker 2: Head was intentionally redrawn to reduce the number of black
Speaker 2: voters and to make it more like that Republican candidates
Speaker 2: would win. Joining me is elections law expert Richard Brofald,
Speaker 2: a professor at Columbia Law School. A federal three judge
Speaker 2: panel said the strategies in drawing this South Carolina district's
Speaker 2: boundaries had unconstitutionally exiled thirty thousand black voters. Tell us
Speaker 2: what the federal panel found.
Speaker 5: Well, basically that this was part of the twenty twenty
Speaker 5: two redistricting in South Carolina. The district involved is basically
Speaker 5: the win around the Charleston area, and the court found
Speaker 5: a panel in the legislature had redrawn the lines. So
Speaker 5: it's to remove about thirty thousand black voters from the
Speaker 5: district and put them in an adjacent district, which would
Speaker 5: have the effect also but basically making it a more
Speaker 5: republican district.
Speaker 2: Tell us the history of this district. It's consistently elected
Speaker 2: Republicans for almost four decades.
Speaker 5: But a Democrat won in twenty eighteen, and then Republicans
Speaker 5: took it back in twenty twenty, but by a very
Speaker 5: narrow margin. So I think one of the ideas he
Speaker 5: was to make it more safety Republican.
Speaker 2: The NAACP said, a person can't drive from one end
Speaker 2: of the coastal district to another without going through the
Speaker 2: neighboring sixth the district.
Speaker 5: Well, the way the lines are drawn is that, in fact,
Speaker 5: there were like tentacles from that kind of project from
Speaker 5: one of the jacent districts into this district, and so
Speaker 5: it was a departure from the traditional boundaries of this district.
Speaker 5: Although the district I think presumably satisfies the standard requirements
Speaker 5: of it being contiguous to presuming you can go from
Speaker 5: one part to any other part of the district, but
Speaker 5: it could also be the easier way to go from
Speaker 5: one part to the other is to go through the
Speaker 5: neighboring district.
Speaker 2: Oftentimes, when they draw districts, I mean, you don't see like, oh,
Speaker 2: a square or a circle. You see some really crazy shapes.
Speaker 5: I mean, given them the strainers of the shapes that
Speaker 5: we see, I'm not sure this one would necessarily qualify
Speaker 5: as one of the most bizarre or strange be shaped.
Speaker 5: But the argument that the plaintiffs made, which the court
Speaker 5: agreed with, was that it was purposefully on to remove
Speaker 5: black voters. And that is what the court found, and
Speaker 5: the plaintiffs basically said, if you ran alternative maps simulations,
Speaker 5: as a standard technique today in dealing with districting claims
Speaker 5: is to generate alternative maps that satisfy the other legal
Speaker 5: requirements of contiguity of equal population of maintaining neighborhoods. Intact,
Speaker 5: that running a string of like a thousand alternative maps,
Speaker 5: this one removed more black voters than any other map.
Speaker 2: So the South Carolina Republicans said the panel made a
Speaker 2: series of legal errors, and it said Republicans were motivated
Speaker 2: by politics, which is permissible, not race.
Speaker 5: Yes, that is the irony. In the last decade's worth
Speaker 5: of redistricting fights, particularly but not exclusively, in the Southern districts.
Speaker 5: The Supreme Court has said that racial gerry mannering is unconstitutional,
Speaker 5: but partisan jerry mannering is constitutional, or at least it
Speaker 5: can't be challenged in court. Yet, race and party are
Speaker 5: very closely intertwined, and so in many of the redistricting
Speaker 5: case is particularly those coming out of the South, where
Speaker 5: you've seen Republican legislatures moving black voters out of districts
Speaker 5: in order to make them more Republican. But their art
Speaker 5: argument has been, well, it wasn't because of their race,
Speaker 5: was because of their party, So that this was partisan
Speaker 5: jerry mannering, which is okay, but not racial jerry mentoring,
Speaker 5: which is not okay. Even though it's very hard to
Speaker 5: tell the to a part.
Speaker 2: Yeah, the challengers in a brief set the predominant reliance
Speaker 2: on race is impermissible, even if map makers used race
Speaker 2: as a proxy for politics, and that has been.
Speaker 5: The finding of several other lower courts, So that is
Speaker 5: a legitimate argument. The South Carolina legislature is sort of
Speaker 5: pushing back as saying, well, you didn't give us credit
Speaker 5: for quod faith. You're supposed to basically accept what the
Speaker 5: legislature does unless you can prove that it was done
Speaker 5: with racial intent. And the plaintiffs were basically said, well,
Speaker 5: look at the numbers, look at the effects, and look
Speaker 5: at the existence of alternative maps. So this will be
Speaker 5: yet another challenge for the court to try and disentangle
Speaker 5: racial motivation from part of the motivation, which is really
Speaker 5: the problem they've set up for themselves by saying that
Speaker 5: racially motivated districting is unconstitutional, but part of in districting
Speaker 5: is not challengeable, and yet the two are also identical.
Speaker 2: How does one prove that districting was racially motivated.
Speaker 5: Well, what the plaintiff did in this case is basically
Speaker 5: run alternative maps. I mean that is another standard form
Speaker 5: of litigation now because of the availability of high power
Speaker 5: computers with massive amounts of data, is that you can
Speaker 5: basically put in an algorithm which says equal population maintaining
Speaker 5: communities of interest maintaining the contiguity of the district and
Speaker 5: wrong like a thousand other maps, and they say they
Speaker 5: did that, and this one actually what the legislature did
Speaker 5: remove more black voters than any other or almost any
Speaker 5: other map that you could show, and so therefore what
Speaker 5: was going on he was the removable black voters.
Speaker 2: The three judge panel did reject check challenges to two
Speaker 2: other House voting districts, saying that the civil rights groups
Speaker 2: had failed to demonstrate that the districts had been predominantly
Speaker 2: drawn to dilute black voting power. Does that help the
Speaker 2: challenger's case any It might?
Speaker 5: I mean it basically shows that the three judge court
Speaker 5: was not a rubber stamp for the plaintiffs and that
Speaker 5: they kind of carefully went through the evidence and said, well,
Speaker 5: what happened in the other districts was not extreme enough
Speaker 5: to prove racial motivation, but in this district it was
Speaker 5: so clear that we found it. I think it actually
Speaker 5: is helpful to the plaintiffs.
Speaker 2: It does it seem as if the Supreme Court took
Speaker 2: this case to reverse the federal panel.
Speaker 5: It's hard to say. I think under federal election law,
Speaker 5: the court basically has mandatory jurisdiction over appeals of federal
Speaker 5: courts knocking out district Now they could affirm summarily, and
Speaker 5: they did not do that, So they may be interested
Speaker 5: in this case. But cases like this often go to
Speaker 5: the Supreme Court, and it will be a challenge, I think,
Speaker 5: to figure out the distinction between race and party in
Speaker 5: a world or in a politics where the two are
Speaker 5: often merged.
Speaker 2: If partisan gerrymandering is allowed, then the group that's in
Speaker 2: power can consistently revise maps so that they keep their power.
Speaker 5: That is a very legitimate and troubling concern, and that
Speaker 5: was one of the main arguments in favor of supporting
Speaker 5: the idea of judicial review of partisan jerrymandering, as otherwise
Speaker 5: you get a lock up and once a group gets
Speaker 5: elected to office, they're able to sustain themselves by manipulating
Speaker 5: the boundaries. Unfortunately, the Supreme Court was not persuaded by
Speaker 5: that argument. In the Ruco decision in twenty nineteen, Spring
Speaker 5: Court basically said, we don't have a standard for reviewing
Speaker 5: districting that allows us to tell what's a permissible use
Speaker 5: of party and what's a nonconstitutional one, and so we're
Speaker 5: not going to do it. That was the court's reasoning
Speaker 5: in that case.
Speaker 2: But there's another case involving redistricting.
Speaker 5: And race in Alabama. Yes, that's slightly different. Indeed, it's
Speaker 5: almost I wouldn't say it's reverse, but it's slightly different.
Speaker 5: They're thelegislature drew lines there. The perspective is on Alabama
Speaker 5: as a whole. So this case about South Carolina focuses
Speaker 5: on one district. This focus is on District one in
Speaker 5: South Carolina. In Alabama, the focus was on the state
Speaker 5: as a whole, and the state is something like, I
Speaker 5: don't know, twenty seven to twenty eight percent African American.
Speaker 5: There are seven congressional districts. Only one has had a
Speaker 5: black majority. The plaintiffs said that you could easily have
Speaker 5: drawn two, and they basically came up with a map
Speaker 5: that showed that, and they were able to persuade the
Speaker 5: lower court. That's being challenged by the legislature, which says
Speaker 5: you didn't show that our failure to draw two districts
Speaker 5: was racially motivated. The plaintiff's claim is based under the
Speaker 5: Voting Rights Act, which relies on effects rather than intent,
Speaker 5: and in the Alabama case, what the legislature is defending
Speaker 5: by saying is that there was no evidence that what
Speaker 5: we did was racially motivated. The plaintiffs is saying that's
Speaker 5: not important. What we can do is show that there
Speaker 5: was an equal population, contiguous district which doesn't too much
Speaker 5: depart from county lines, although in Italy it's different from the
Speaker 5: prior districts that have been drawn in this state, but
Speaker 5: which we think would give better representation to black voters.
Speaker 2: Explain how the Supreme Court has been rolling back protections
Speaker 2: for minority voters.
Speaker 5: Well, Supreme Court did one major thing, which is the
Speaker 5: Supreme Court struck down the provision in the nineteen sixty
Speaker 5: five Voting Right Back, which was renewed several times over,
Speaker 5: including in two thousand and six, which requires that in
Speaker 5: certain states and counties which have had a history of
Speaker 5: voting discrimination, that any changes in their voting rules and
Speaker 5: the voting practices and procedures have to be pre approved
Speaker 5: by either Department of Justice or a federal district court,
Speaker 5: and the state or a community that's making the change
Speaker 5: has to prove it has no discriminatory intent to effect.
Speaker 5: That was called preclearance, and that operated to prevent a
Speaker 5: lot of discriminatory measures, particularly but not only in the South.
Speaker 5: The Supreme Court struck that down in twenty fourteen, saying
Speaker 5: that the problem was that Congress continued to adhere to
Speaker 5: the formula for deciding what was a community that had
Speaker 5: to go through preclearance, and that formula hadn't been reviewed
Speaker 5: and reconsidered it with the nineteen seventies. So the Court said,
Speaker 5: it just can't be right that it's still the same formula.
Speaker 5: So that was a major blow that eliminated the ability
Speaker 5: of plaintiffs to challenge changes before they took effect and
Speaker 5: to put the burden of defending the changes on the
Speaker 5: state or city making the change. So that was a
Speaker 5: very important decision and one that I think it's been
Speaker 5: a much harder for platiffs and voting rights cases to win.
Speaker 5: The other case, a case in coming out of Arizona
Speaker 5: about two years ago called Burnovitch, was less of a
Speaker 5: roll back but more of a creation of the barriers
Speaker 5: to challenging voting laws that make it harder for people
Speaker 5: to actually cast a vote was going on in the
Speaker 5: section five case. The preclearance case was essentially about districting,
Speaker 5: which is also what this case is about. The cases
Speaker 5: both in Alabama and South Carolina. But in recent years
Speaker 5: we've seen a lot of states adopting rules that make
Speaker 5: it harder to be able to vote, including things dealings
Speaker 5: stay with the voter id or rules governing early voting
Speaker 5: or absentee ballots. And the one question was, you know,
Speaker 5: under the voting right sack a claim is often made
Speaker 5: that these burden voters of color more heavily than white voters.
Speaker 5: And then the Bernovich case in Arizona, the Serreme Court
Speaker 5: essentially we're going to really increase the burden of proof
Speaker 5: on plaintiffs challenging these rules to show that, in fact,
Speaker 5: these rules have a discriminatory effect.
Speaker 2: And what's the status of morv. Harper, the case that
Speaker 2: was advancing the controversial independent state legislature theory. Do we
Speaker 2: know yet what's happening with that?
Speaker 5: No? The court expert, as you know. Morphy Harper was
Speaker 5: the case that raised the so called independent state legislature theory,
Speaker 5: which is the idea that some people have argued is
Speaker 5: that when it comes to federalist congressional redistricting, only state
Speaker 5: legislatures can do it because of some language in the
Speaker 5: Constitution which implies that as opposed to state courts interpreting
Speaker 5: state constitutions to prohibit partisan gerrymandering even in congressional elections,
Speaker 5: and that case, the North Carolina Supreme Court struck down
Speaker 5: the Congressional distrestingc Plan for North Carolina, finding that it
Speaker 5: was a partisan Republican jerry mander, and the North Carolina
Speaker 5: Legislature challenged that, saying North Carolina Supreme Court didn't have
Speaker 5: the authority under the North Carolina Constitution, that this is
Speaker 5: a matter solely for the legislature as a matter of
Speaker 5: the US Constitution. Supreme Court agreed to hear that case
Speaker 5: and actually heard oral argument for like two and a
Speaker 5: half hours back in the fall. Three Court hasn't decided
Speaker 5: this case yet. In the meantime, as a result of
Speaker 5: the twenty twenty two elections, the composition of the North
Speaker 5: Carolina Supreme Court changed hands, and the court very recently
Speaker 5: basically reversed its decision and said that the legislature's plan
Speaker 5: is not a jerrymander on the North Carolina Constitution, that
Speaker 5: the North Carolina Constitution does not prohibit jerrymanders. So the
Speaker 5: US Supreme Court asked for briefing on the question whether
Speaker 5: they still have jurisdiction whether they should go ahead and
Speaker 5: decide this case or not. I think those priests are
Speaker 5: submitted only recently. Well, imagine we'll get a decision one
Speaker 5: way or the other. Either court was saying we don't
Speaker 5: jurisdiction dismissing the case or report We'll hold onto the
Speaker 5: case and decide it, but we may not know until
Speaker 5: the end of June. Possibly.
Speaker 2: Thanks so much for being on the show. Rich that's
Speaker 2: Professor Richard Brafult of Columbia Law School, and that's it
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