Alabama Map Blocked for Racial Discrimination & Trump Deregulatory Fail

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1:41This is Bloomberg Law with June Grosso from Bloomberg Radio. Are y 'all ready for this fight? Yes! Are you ready to use your voice? Yes! Are you ready to vote like you've never voted before because your lives depend on it? In Montgomery, Alabama, the city considered the crucible of the civil rights movement. Thousands of people rallied this month to protest against the state's efforts to dismantle congressional districts with black political representatives. Civil rights leaders, Democratic members of Congress from across the country, union leaders and pastors spoke at the rally to denounce the U.S.

2:27Supreme Court's ruling eviscerating the landmark Voting Rights Act and the resulting frenzy in southern states to reshape voting districts with large minority populations. New Jersey Democratic Senator Cory Booker compared the ruling to past Supreme Court decisions like Dred Scott and Plessy v. Ferguson. You see, we have seen this before, where some people in black robes try to deny or take away our rights. But yesterday, a stunning legal victory for Democrats as a panel of federal judges refused to allow Alabama to use a congressional map it adopted three years ago, ruling that it intentionally discriminated based on race.

3:15But this long-running legal saga is not over yet. The state has appealed the decision to the Supreme Court. Joining me is elections law expert Richard Brafalt, a professor at Columbia Law School. Rich, this is a long and winding legal and political saga in Alabama. Give us some of the background. It's incredibly confusing. So this latest Alabama case really is the ongoing saga of endless litigation following Alabama and the 2020 census and Alabama's redistricting. Alabama has seven House seats. That didn't change as a result of a court decision some decades earlier. Basically, it has a white majority in six seats and a black majority in one.

3:59This was as of 2020, although the state is about 30 percent black. Voting Rights Act case was brought challenging that a three judge court. That's that's the kind of court that's created when challenges to districting are brought, found that Alabama had violated the Voting Rights Act, that it engaged in a legal vote dilution and ordered a new map. But the Supreme Court stepped in before the 2022 election and said, no, it's too close to the election. Although it was actually quite a number of months before it was, I think, in the spring. But they said it was probably too close to the primaries.

4:34And so that case ultimately went to the Supreme Court. And many people surprised the Supreme Court by a vote of five to four in, I think it was 2023, voted to affirm what the Free Judge Court had found and just concluded that Alabama had violated the Voting Rights Act and indicated that Alabama probably should have two black majority voters so-called opportunity districts where black voters have a real opportunity to elect their candidate of choice. It went back to the legislature. The legislature, however, did not do that. The legislature basically came up with another plan, which was essentially six white majority, one black majority district.

5:10That was then challenged. And the three-judge court said, no, you have not complied with our ruling. This still is both dilutive. And we actually think it's unconstitutional because it reflects intentional racial discrimination. So they enjoined this new map that's sometimes called the 2023 map. And a special master created a map which created two black majority districts. Well, one I think is just under majority, one just over on Alabama for the first time since Reconstruction elected two black representatives in 2024. And now we have the impact in Alabama of the Supreme Court's decision in Louisiana versus Calais.

5:50Explain how that decision severely weakened the Voting Rights Act. The Supreme Court significantly, I think the word the court is using is updated its analysis of vote dilution claims under Section 2 of the Voting Rights Act, making it much, much, much harder for them to prevail. At that point, Alabama came in and said, you know, we want to reopen this case. And so what the Supreme Court had done in the earlier Alabama case is basically sustained the injunction that the lower court had issued barring Alabama from using its own legislatively adopted map. So they went to the Supreme Court, this is in either late April or very early May, and asked the court to lift the injunction on the legislature's 2023 map.

6:38The court agreed and said, we're sending this back to the lower court for them to reconsider their decision in light of our decision in Calais. They didn't say the lower court was wrong, but they just said, obviously, the legal rules have changed. We want the lower court to reconsider. While that was happening, the governor of Alabama called a special session of the legislature. At this point, primaries were already ongoing for the Alabama election of candidates for Congress. Basically, the governor said and got the legislature to agree to stop the primaries in four of the districts, the two black majority districts and adjacent districts, which would be most likely impacted by this and said, we really want to go back to the 2023 map.

7:20So they've now stopped the primaries in those four districts. And the legislature basically thinks that with the injunction lifted, the 2023 map, which is the legislature's map, which would be six majority white, one black majority district, and also for partisan purposes, likely six Republican and one Democratic. That was the result of the legislature's vote in early May, earlier mid-May. The plaintiffs who brought the original case then went right back to court before the three-judge court, which had imposed the map that was used in the last election. Tell us about the decision of that three-judge panel, which consisted of two Trump appointees and a Clinton appointee.

8:05And that court yesterday issued a 103 page opinion where they concluded that the legislature's recent action was both unconstitutional and violated the Voting Rights Act, even under the Calais standard. And the court basically said the Supreme Court did not say that we were wrong before. They just said you've got to reconsider. And the court went through the entire process by which Alabama adopted the 2023 plan, including its refusal to create a second black majority district, the kinds of considerations it considered in its deliberations, and concluded that that was intentional racial discrimination.

8:44They then also applied the Calais standard and said Calais doesn't mean you never can vote dilution. And they found that given that there was intentional racial discrimination, and given other factors and given just how much this appears to be driven by race and how much race is dominant in Alabama politics, that this really was more race than party, and therefore it violated the Voting Rights Act, too. And they also had some analysis about what's called the Purcell Principle, which is the idea that courts should not step in and change the voting rules on the election. But of course, they pointed out it's kind of a mess as to what's the baseline here.

9:20Is the baseline the 2024 map, which is what the current members of Congress were elected and what the state was using up until early May, or is the baseline the map that the state has just reimposed? And the court said, going through the analysis that that case requires, we think the disruption is so great if the state's going to go back to that old 2023 map and that there's actually less disruption if they stick with the 2024 map. So they also felt that justified the injunction, just to kind of sum it up. In granting an injunction like this, the court has to consider both the substantive merits, but also whether an injunction is wise.

10:00And they said, yes, on the substantive merits, the Alabama plan is both unconstitutional and violates the Voting Rights Act. And on the rules for an injunction, we think actually that this is really preserving the status quo rather than disrupting it on the end of the election. So you mentioned 102 page opinion. What do you think about the panel's findings? Do you think they'll hold up under Supreme Court review? It's interesting. And just in terms of the judges, the two Trump appointees, I think, are both judges in Alabama. So the way these courts are set up, as you know, there's a court of appeals judge and two district court judges, and the two district court judges are the Trump judges, and they're both from Alabama.

10:38I think they did a good job. I mean, the real question at this point is, how deeply is the Supreme Court going to get into reviewing this decision? I mean, the time really is tight here. So it's very time compressed. And, you know, they make extensive findings of discrimination. Is the Supreme Court really in a position to reject those right now? Although they've done that in other cases. So I don't want to say they won't. There was a recent case from Texas where they basically rejected the lower court's findings without really much discussion. But they would have to do that. They would have to say that, no, that this is wrong.

11:18And, you know, it's the Supreme Court. They could do it on the shadow docket in a precarious opinion with long dissents. They could. but I do think that the three-judge court went through the process by which Alabama did this in 2023, which is the map that would come into effect in great detail and spent a lot of time basically making their case for both intentional discrimination and for trying to comport with Calais. And so they were seeking to be faithful to what the Supreme Court did. They were not saying, you know, we're not going to follow. They actually said that Calais gives greater weight to making sure the Voting Rights Act is closer to the Constitution.

12:00And they said that really should only be applied in cases where there's reasonable suspicion of intentional discrimination. And they make that case. They also spent a lot of time trying to make the case that this was race and not party, even though the two were intertwined by talking about how in Alabama, even white Democrats find it hard to vote for a black candidate, how black Republicans don't do very well with Republican voters, and how there are many relatively socially conservative black Alabamians, but they vote Democratic because of the party's position on race issues as opposed to the Republican Party.

12:36I'm kind of paraphrasing what the court said. So I think it's a struggle. I mean, the Supreme Court standard in Calais saying you have to show it's race and not party is an incredibly difficult standard. And, you know, we'll see if the Supreme Court finds what this court did is persuasive, but they certainly spent some pages trying to make that case. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Columbia Law School professor Richard Brafalt. We'll look at what's happening with the maps in South Carolina and Florida. I'm June Grosso, and this is Bloomberg. What if you could have more wins, more support more sound effects at LPL Financial we like the sound of that because LPL offers more advisors what if you could have more ways to help your clients ready to invest what if you could find an advisor that really understands you when it comes to your finances your business, your future at LPL we ask what if you could paid advertisement, investing involves risk including potential loss of principal LPL Financial LLC member FINRA SIPC The thing about AI for business, it may not automatically fit the way your business works.

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15:01Crypto services by ZeroHash. All investing involves risk of loss. See complete disclosures at public.com slash disclosures. Alabama officials have asked the Supreme Court to reinstate a Republican-drawn voting map that would eliminate a majority black congressional district and give the GOP a likely pickup in the November midterms. The emergency request in the long-running legal saga follows a lower court decision on Tuesday that rejected the proposed map for the third time. as the product of intentional discrimination against black voters. I've been talking to Columbia Law School professor Richard Brafalt.

15:44Rich, I mean, the Supreme Court can't disturb the factual findings of the three-judge panel, can it? They'd have to decide what their weight is. The court went through, blow by blow, the process by which the legislature in 2023 enacted the map. It's kind of a funny case because the case comes up to the Supreme Court based on what the legislature did just like a couple of weeks ago. That's the one that basically said we're putting off the primaries. But it was the Supreme Court, by lifting the injunction, that put the 2023 map back into effect. So this case is very much about the 2023 map. And this court gives a lot of weight to the fact that the legislature in 2023, when it was told to remedy a vote dilution finding, didn't really do that.

16:32That and the process by which they did it, the factors they cited, and the findings they issued, all smacked of intentional discrimination. So it's kind of weird because in some ways it's not really a review of what the legislature just did. It's a review of what they did three years ago. And the law has changed since then with Kelly. So it's kind of like putting yourself back into what things were like then and trying to figure out, was the legislature acting unconstitutionally when it did what it did in refusing to create the black majority district that they had been more or less directed to do?

17:10So, I mean, it sounds like it would be more of a stretch for the Supreme Court to reverse this ruling than to affirm it or. On the other hand, they could, of course, stay it, which they've been known to do. I mean, that's effectively what they did three years ago. In the Milligan case, they stayed the court's decision striking down the 2021 map. And then a year and a half later, they sustained the local corporate after having blocked their decision for a year and a half. it is not out of the question, given that history, that they might stay this injunction, allow the election to go forward on the 2023 map, and then conceivably this case comes up on the merits next year.

17:53I mean, I don't want to predict that, but it's not out of a question that they would simply stay this, possibly on Purcell grounds. Purcell was the one about not acting too close to the election. But that itself is just a mayor's nest because, you know, that's always going to figure out what's the status quo? And is the status quo the 2023 map or is the status quo the 2024 map, which this would put back in? It's surprisingly complicated. I mean, the Supreme Court hasn't been particularly solicitous of the Purcell principle lately, shall we say? I mean, do they even pay attention to it anymore?

18:33They've been very vigorous about it sometimes, but it's not clear that they think it applies to them. It really is very much about lower courts. I mean, after all, Calais itself, as the mess we've seen in Louisiana and Alabama, Calais itself has kind of been consistent with the Purcell principle. If they were serious about it, they would have said, we're not going to apply it to this year, or they would have decided much earlier, or they would have waited to let the election season was over. And because Ivy has moved the special primaries to August, that gives the Supreme Court more cover, more time.

19:08I guess, yeah, right. But they don't have a lot of time, I think. Because in order to have that primary in August, I mean, a lot of the opinion goes through the, and a lot of the trial testimony in this case on this injunction, was about how easy or hard is it going to be for the election administrators to redraw the lines and to basically to move around all of the voter information and make sure voters are in the right place, what their precincts are, and that they're voting in the right place. And normally, this is a process that takes several months, but it would have to be done very soon because although the primary might not be until August, candidates have to file before that.

19:44I don't know the details of the Alabama process, but we're now three, three and a half months before that primary, typically you need to, candidates need to file before then and know what districts they're running in. And the election commissioners, the state local election boards need to have that done ASAP. And so I think actually, if the court's going to do something here, I expect it'll be this week, next week. I mean, they really don't have much time. However, this election is going to happen. I think the administrators need to know this already. I mean, they need to know it yesterday. They said they need to know it very soon.

20:20And the candidates need to know it so they know where they're running. So hopefully, I mean, what day of the week is this is Wednesday. I mean, they really should do it this week or, you know, worst over the weekend, but early next week. And they've got, obviously, this is while they're also doing all of their other major cases. Right. And the Alabama director of elections had testified that it will take a chaotic, thick decentralized and Herculean effort for officials in this office and counties to reassign voters to new districts. If the Supreme Court reversed this, it would open them up to more claims of partisanship.

20:55Yeah, I mean, and again, I think maybe less likely to reverse a stay, because that in some ways that comes across as well. I mean, in some sense, it almost makes sense. We don't have time to think about this. And it just it really turns on what you think the status quo is. I think it would be hard for them to reverse it on the shadow docket in some other because there's a lot of substance here. That doesn't mean they won't. I think a stay is more plausible because the state can emphasize, you know, the fact that these are hard issues, but that there's an election happening and that the baseline is the 2023 map, which the state legislature did adopt, was a 24 map was imposed by a court or special master.

21:35And the Supreme would have tended to prefer maps that were adopted by the legislature as opposed to court-imposed ones. So it would not surprise me if there was a stay. I think a substantive reversal would be a lot more work. Since the Calais decision, Southern states have been in a sort of frenzy to reshape voting districts to eliminate House seats held by Black representatives. But yesterday, for the second time, South Carolina state senators adjourned without drawing up a new map to eliminate that state's one majority Black House seat. Five Republicans joined Democrats, basically saying it was too late because tens of thousands of votes had already been cast.

22:19And what would they do about that? But remember, it had already started in Louisiana when the state changed it. And I think it was about to start and they've already started in Alabama. I do wonder about South Carolina, whether one thing is it may be that it's so late that Trump can't primary them as he did the Republicans who didn't go his way in Indiana. And the other, of course, the district it's getting rid of was Jim Clyburn. He's in his 80s. He's an icon of South Carolina. It may be that they're kind of banking on him retiring or that it may be easier in a future year, like next year, to get rid of it.

22:54I'm just speculating. It may be that they might change it for 2028. And maybe at that point, they think they would give him kind of a signal to retire. And it would be more of a blank slate. I think they may not want to be seen as taking out, you know, kind of a longstanding, important figure in the state. And then it might be easier if he retires or if they rewrite the map, that might persuade him to retire. Right now, it's too late. And in Florida, those four seats that DeSantis created, a DeSantis appointee ruled that the state could continue to use those, even though they have a law against partisan gerrymandering, and even though a DeSantis aide who drew the new map said that he had done so based partly on the partisan breakdown of voters.

23:46But still, the judge said there was insufficient evidence of impermissible intent. And he also cited the Purcell principle to keep in place the map that just was made in May. That is a problem with the Purcell principle, is that it only applies to courts. It doesn't apply to legislatures. So they can do whatever they want. And indeed, you see the Alabama three-judge courts sort of basically saying, well, the reason we're doing this is at this point, we're concerned about the disruption caused by the legislature. So we're not so concerned about our disruption, because for one thing, also, the plaintiffs came to court instantly.

24:22You know, the other thing that I found troubling, and I haven't read the opinion of the judge in Florida about just the news accounts, is that he raised some questions about, in some sense, the constitutionality of the Florida constitutional provision that bars partisan gerrymandering, because it was enacted as part of a general provision dealing with districting, and it provided for some attention to race. And he suggested, well, maybe that's unconstitutional now after Calais, which I don't know that that's right, but he raised that question. And if that's the case, the whole amendment fails.

24:54I mean, again, it's a pretty audacious argument to say that both the attention to race that the Florida Constitution has is unconstitutional, but then to say that the fact that that part might be taints the entire amendment. And so you can't even enforce the anti-partisan part, leaving aside his factual finding. Now, he is only an intermediate judge. It could go to the Florida Supreme Court. Again, they have the same timing problem. And of course, again, it is a court. I think all the judges are Republican and many of them, if not most of them, were probably appointed by Governor DeSantis. Six of seven appointed by DeSantis.

25:30Always more to come, Rich. Thanks so much. That's Professor Richard Brafalt of Columbia Law School. Coming up next on the Bloomberg Law Show. President Trump's rapid deregulation strategy appears to be falling flat. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades, and others feel less like investing and more like a game. Public is positioned differently. It's an investing platform for people who are serious about building their wealth.

26:05On Public, you can build a portfolio of stocks, options, bonds, crypto without all the bugs or the confetti. Retirement accounts, yep. High-yield cash, yes again. They even have direct indexing. Public has modern design, powerful tools, and customer support that actually helps. Go to public.com slash market and earn an uncapped 1 % bonus when you transfer your portfolio. That's public.com slash market. And paid for by Public Holdings. Brokered services by Public Investing. Member FINRA SIPC. Advisory services by Public Advisors. SEC Registered Advisor. Crypto services by ZeroHash. All investing involves risk of loss.