Redistricting Wars Again & Tariff Refunds

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1:55The Supreme Court's decision that basically eviscerated the landmark Voting Rights Act has set off a frenzy of redistricting, particularly in southern states controlled by Republicans. The exception seems to be South Carolina, a rare red state to buck President Trump on the issue of mid-decade redistricting. The state Senate rejected an effort to redraw the map's districts to favor Republicans. South Carolina Senate Majority Leader Republican Shane Massey said the state's current district map is perfectly fine for November. We are not Louisiana. We are not Alabama. We are not Mississippi. Our map is not unconstitutional.

2:43Most of the latest redistricting efforts face legal challenges, and it's hard to calculate which maps will survive, with control of the House remaining on a knife's edge. My guest is an expert in elections law, Richard Brafalt, a professor at Columbia Law School. Rich, Virginia and its Democratic leaders are asking the Supreme Court to reinstate a new voter-approved congressional map that was designed to flip four Republican-held House seats in the November election. Tell us about the decision by Virginia's Supreme Court that they're appealing to the U.S. Supreme Court. Sure. Okay. So as you know, Virginia has a couple of years ago passed a nonpartisan redistricting system to get rid of gerrymandering.

3:31But in response to the Republican gerrymanders, the governor and the legislature supported an amendment to that amendment that would allow a redistricting to go forward for this year. and the amendment was submitted to the voters and it passed narrowly and the legislature then passed a redistricting plan which would have made Virginia something like 10 Democratic seats and one Republican. Right now I think it's something more like six and five. The problem according to the majority in the Virginia Supreme Court which divided four to three is that under the Virginia Constitution in order for a constitutional amendment to be adopted by the voters it has to have been passed by the legislature before the next election.

4:15So in other words, the legislature has got to vote. Then there's got to be an election in which the voters can approve or reject the legislators. And then the amendment goes to the voters. So the legislature first passes the amendment. Then there's a general election by the voters. And then there's a special election on the amendment. The problem, according to the Virginia Supreme Court majority, is that early voting had begun in the 2025 general election in Virginia. So that's the amendment passed the legislature before election day, but people had been voting already because of early voting.

4:49And according to the majority of the Virginia Supreme Court, that meant that there was not a true intervening election between the legislature's vote on the amendment and the public vote on the amendment. And that was the problem for the majority. The dissenters said, well, actually what the Constitution was concerned about is that there'd be an election day in between. But the majority said no. If the point of the legislative election is to allow the voters to pass judgment on whether the legislators were right or wrong to pass the amendment, some people already voted. That was the theory of the Virginia Supreme Court majority.

5:24And that's what led them to say that this constitutional amendment allowing the Democratic gerrymander to go forward was improperly adopted. How likely do you think it is that the Supreme Court will take the case? It strikes me as highly unlikely that the U.S. Supreme Court would step in because it turns very much on Virginia constitutional law. The court's decision was this simply did not satisfy the procedures in the Virginia Constitution for amending the Constitution. So I think it'd be highly unlikely that the U.S. Supreme Court would step in. There are many Republican states in the South that have been changing their maps.

6:06And there are court challenges in Tennessee, Florida, Missouri, and I'm sure others. Do any of those challenges strike you as ones that the Democrats challenging the maps might be successful in? I think the best bet is in Florida, because Florida also has a state constitutional amendment that actually prohibits partisan gerrymandering. So as you know, the U.S. Supreme Court says that partisan gerrymandering is non-justiciable for federal constitutional purposes. But there is a provision of the Florida Constitution that restricts partisan gerrymandering. And so there is a chance. I mean, I don't know.

6:48Again, it's either an entirely Republican or a nearly entirely Republican state Supreme Court. So it's not clear what they will do, but it's currently being litigated in a state district court in Florida. I think that's got a chance. I mean, I don't want to put any odds on it, but at least I think there they have a legal theory, which, you know, I think has not been rejected. it. In Missouri, I think there's also a state argument. There's an attempt to put a ballot proposition on the Missouri Constitution that would undo the gerrymander. And the question is, what does that do to the gerrymander while the ballot proposition is pending?

7:25And so far, the Missouri courts have said the fact that there is a pending ballot proposition doesn't block the gerrymander. In the other states, I'm not quite sure what the argument is going to be. I think There might be efforts in some of these states to argue that the states redistricting efforts are based on intentional racial discrimination. The Supreme Court said that argument is still a valid argument for striking down a plan. But it's going to be very hard to win on that, especially since the Supreme Court has shown itself to be very unlikely to find that states have engaged in intentional racial discrimination when the states have an argument that what they're doing is partisan gerrymandering.

8:03Looking forward to the next general election, right now a lot of the northern Democratic-led states have commissions in place, things stopping them from doing the gerrymandering that the southern states are doing. But given time and perhaps the will of the Democratic legislators, could those be changed and could Democratic states then start doing gerrymandering? For example, New York, already the governor has put it on the table for legislators. It's certainly possible. And you're right. It's been raised in New York. New York has something, has a rule that's a little bit like the Virginia rule.

8:43It's not the same. That basically says if you're going to amend the Constitution, it's got to be approved by two legislatures with a legislative election intervening in between. So for this to happen, though, the New York legislature would have to pass, really propose a constitutional amendment to the state constitution because New York state also has a redistricting amendment, which bars gerrymandering. The legislature would have to pass that amendment this year in 26, and then take it up and pass it again next year in 27, because there's a legislative election this fall. And then it would go to the voters, presumably, in November of 27.

9:26Now, as of now, mid-May, the legislature has not passed this. They could. I mean, they have time, but they would have to do that. And I don't know what the procedure is in other states, but that would be what they'd have to do in New York. Let's turn now to the legal fights that have reached the appellate courts over the Trump administration's attempts to get states to turn over their voter rolls. First of all, why does the Trump administration want these voter rolls from the states? We don't really know. I mean, their ostensible justification is to make sure that the states are complying with the rules and making sure there are no non-citizens on the voter rolls.

10:05And in general, to say whether the states are complying with various federal voter registration requirements and whether the states are keeping their rolls clean, essentially. That's their argument. It's part of, I think, a more general effort by the administration. The president issued those two executive orders, which so far haven't really accomplished anything, but have been trying to have some nationalize the election process, and maybe they're trying to intimidate state and local election officials. What they're asking for in all of the states is state voter registration lists, which provides information about every voter, including their social security numbers or their driver's licenses, their addresses, etc.

10:45There is no guarantee that the administration will maintain privacy. And beyond that, there is the question of what do they intend to do with it? Have administrations prior to this sought voter rolls? Not I'm aware of, except in extremely unusual circumstances, like the first law is a civil rights law that was passed before 1960, where administrations were using it to go after states they were keeping black people off the ballot. So they were looking for things like voter registration applications to see how they were being treated. But I'm not aware of any administration actually asking for the complete voter registration list that a state maintains and presumably upgrades on a regular basis as people drop off or come on.

11:31Quite a few Republican-led states have turned over the voter rolls. Democratic-led states have not turned over the voter rolls and some Republican-led states have not turned them over. And at the six trials held over the refusal to turn over the voter rolls, the Trump administration lost every single trial, including those before Trump-appointed judges. Yeah, my count is that 30 states and the District of Columbia have said no, and 12 states have gone along. You're right. All 12 states that have gone along have been ones with Republican chief elections officers. But as you also point out, a number of the states that said no are so-called red states.

12:16Idaho said no. Oklahoma said no. Kentucky said no. West Virginia said no. Utah said no. So it's mostly Democratic states that have been saying no. But there have been some Republican states as well who insist they're the ones who were in charge of elections. And And they've been doing a great job maintaining the accuracy and purity of their roles, and they don't need Washington. You're right, though, the Justice Department has sued some of the states that have said no. So far, I think they've only sued Democratic states like California and Oregon and Michigan, although there was also a suit against Arizona, which currently has Democratic leadership but might be considered more of a purple state.

12:54And you're right, every single one of these lawsuits by the Justice Department has been rejected by district judges, including most recently in Arizona, where it was a Trump-appointed judge who said there's no basis in the law for requiring the states to give the Justice Department this information. Are the courts that have ruled using the same analysis or reasoning, or is it different? Pretty much. I mean, some of them have gone off on technical grounds, but I thought the most substantive one was the most recent one, which was the one in Arizona, where the judge there, she basically said, I read the statute.

13:29The statute says this is the kind of information that Justice Barber is entitled to ask for. Mostly or entirely, it's information that voters submit to the government, like basically registration applications. There were two or three things like that. And it nowhere says that there's a requirement to turn over a list that's generated by the state itself. And then she pointed out there's some internal inconsistencies because there are restrictions on the information that states require to turn over. There's restrictions on the ability of the states to alter that information. But of course, the states are constantly required by federal law to alter their voter registration list as people sign up or people move and come off.

14:14And she basically says, in fact, there's a contradiction there because the information that the civil rights law requires the states to turn over is voter-supplied information, not state-generated information. And federal law prohibits the states, in effect, from tampering with that voter-supplied information. The federal law requires the states to constantly revise their state voter registration list. So it's a fairly short opinion. It just came out in late April, but it's pretty effective. And so I know the Justice Department just just the other day released a 40 page internal document about why they think they're right.

14:52But so far, they have not succeeded in any court. And at the Sixth Circuit arguments today, one of the judges questioned why the DOJ's Office of Legal Counsel issued an advisory opinion only one day before the arguments. The Sixth Circuit arguments are over a case involving Michigan. The Ninth Circuit arguments next week are over California and Oregon. Now, are these these are based on the Civil Rights Act? One of the early Civil Rights Acts, actually, even before the big Civil Rights Act of 64 and 65. But when the federal government is beginning to get into this, one of them that I'm talking about is the one that gives the just the power to ask to get from the states certain voter registration materials that, and this was what the Arizona judge emphasized, that the voters give to the state.

15:48And so one argument is that, you know, it doesn't apply to stuff the states generate themselves. There are other arguments relate to the National Voter Registration Act from the 1990s and HAVA, the Help America Vote Act from the 2000s, I think 2006, although I'm not sure the exact date, which are generally about states maintaining accurate voter rules, but don't explicitly authorize the Justice Department to do what's doing. So I think the Justice Department is claiming a kind of a general right to kind of oversee the effectiveness of these statutes, even in the absence of anything that specifically gives in the power to do this, or in the absence of any clear allegations that the states are doing a bad job.

16:35Could the losing party, is there time for an appeal to the Supreme Court? I would imagine so. I mean, it's not quite clear that there's any what the urgency of this is. I guess they might want to argue that they need to have the rules information before the the midterms. But I would imagine that any state that loses this would go immediately to the Supreme Court. And it appears that the Justice Department had a tough time at the Sixth Circuit today, where the judges kept pressing the DOJ lawyer on how to parse the phrase, come into possession in a law the agency is using to try to force the state elections officials to turn over the unredacted voter rolls.

17:21I'm just wondering if all this before the election, the gerrymandering, you know, whether this is going to make people very confused when they do go to vote. I mean, I don't know in some states if they'll have to find out where their voting district is and wonder if the voting is just going to be a mess. Well, certainly, Alabama and Louisiana totally messed up their primaries. In both states, the primaries had already begun when the state government decided we're going to change the districts. So those voters can be totally confused. I mean, hopefully everything will be settled down by the fall.

17:57And of course, this disclosure of the voter information doesn't directly affect voting, although it could make voters nervous, but the voter registration must already exist. It won't be changed whether you vote or not. But yeah, I mean, I think there's certainly in the states that are doing all this last minute redistricting in Tennessee, in Florida, now in Alabama and Louisiana, it's going to be chaotic. And especially in Alabama, Louisiana, where they were voting. And so, in fact, what I think the Louisiana state did, and I think maybe Alabama as well, in fact, split their primaries and said, we can run the primaries for the state legislature, but we're not going to run the primary for, in fact, there's a primary for Senate in Louisiana, which I think is still going forward, but we're not going to run the primary for Congress until we get the district lines done.

18:46Thanks so much, Rich, as always. That's Professor Richard Brafalt of Columbia Law School.

18:54The government has begun refunding some of the$166 billion collected from tariffs that the Supreme Court declared were illegal, those tariffs that were collected under IEPA. At the same time, the Trump administration is fighting a legal battle to defeat the newer tariffs Trump imposed immediately following the Supreme Court's decision. Joining me is Dave Townsend, an international trade expert and a partner at Dorsey & Whitney. Basically, give us an update on the Customs and Border Patrol has confirmed that it is close to clearing, what,$35 billion? U.S. Customs and Border Protection issued a statement to the Court of International Trade this week, providing an update to the court about the progress it was making in issuing refunds to U.S.

19:50importers for tariffs that were ruled illegal, the IEPA tariffs. And CBP told the court that it was making progress, that it had approved over$35 billion in payments to U.S. importers and that it would be issuing that money. it also provided an update saying that it intended to approve a significant amount more here in the coming weeks with respect to claims for the refunds that were already made. And explain why it's important that they're actually starting to hand the money out, what the implications are. The Court of International Trade directed CBP to issue the refunds to importers following the Supreme Court's ruling that the AIPA tariffs were unlawful.

20:46And the order of the Court of International Trade remains appealable by the United States. It was issued earlier this year, and under the rules for appeal, they could, as of June, appeal the order directing them to issue the refunds. In the meantime, the court had asked CBP to demonstrate it was making progress in issuing the refunds to the importers, which is what led to the update that CBP provided earlier this week. And I think it's significant that it told the court it was sending$35 billion, more than$35 billion to the U.S. importers in light of the fact that the CIT order remains appealable.

21:38I mean, is it difficult to get the tariff refunds or is it automated and just smooth? The refund process has been pretty smooth to date. Customs, CDP launched what it calls CAPE, which is a module within its automated commercial environment, allowing importers to submit a declaration asking for the refunds. That occurred on April 20th. CBP had said it would take 60 to 90 days for them to review the declarations asking for the refunds and to issue the refunds. And so, you know, given the date today, it's more mid-May, they're moving more quickly than they said they thought they could and have already begun issuing the refunds in advance of the 60 to 90 days they thought it would take for them to do so.

22:33So as these refunds proceed, the Trump administration is simultaneously fighting a legal effort to defeat his newer tariffs. Tell us about the International Trade Court's recent decision on that or recent order. The president, after the Supreme Court had ruled the IEPA tariffs were unlawful, issued a global import tariff that applied to nearly all goods coming into the United States of 10 % under what's called Section 122. And U.S. importers and 20-some states acting as plaintiffs filed a claim before the Court of International Trade asking to find that the imposition of that 10 % global tariff was unlawful.

23:22Last week, the Court of International Trade agreed and held that Section 122 did not authorize the 10 % tariff that the administration had imposed. And so the Court of International Trade ordered the United States to cease collecting the 10 % tariff, at least with respect to the importer plaintiffs before it, and then also ordered the United States to issue refunds of the Section 122 tariffs that those importers had paid. Since issuance of that court ruling, the United States immediately appealed, asked the U.S. Court of Appeals for the Federal Circuit to pause the order requiring them to stop collecting the 122 tariffs.

24:07And just yesterday, the Court of Appeals for the Federal Circuit agreed to pause the effect of the CIT ruling. And so for now, at least everybody has to continue paying the Section 122 tariffs. And this is all familiar to importers because this was very similar to the way the court challenges unfolded with respect to the IEPA tariffs. When the tariff decision came down from the Supreme Court, everyone talked about the different ways that he could impose tariffs lawfully. Did he use the wrong section? Is there another law that he could have used so that it wouldn't face a successful court challenge?

24:47The United States has said it will continue to impose tariffs under a variety of authorities. And so immediately following the Supreme Court decision with respect to IPA, they faced this problem, which was that they wanted to immediately impose a replacement tariff. They chose Section 122. It's time limited for 150 days into July. And in the meantime, they have begun the process to to impose tariffs on what they've referred to as more durable legal authorities, meaning authorities that they can impose tariffs indefinitely or without any time-limited constraint. They're doing that under what's called Section 301, which allows tariffs in response to unfair trading practices.

25:37The president has been imposing Section 301 tariffs on goods from China since 2018. Those tariffs were continued under President Biden and have continued till till today. There are a variety of Section 301 investigations ongoing that will allow the President to impose tariffs under Section 301, possibly as early as July when the Section 122 tariffs expire. There's also Section 232, which are certain national security related tariffs. Those have also been imposed in some respects since 2018. So the big picture here is that these Section 122 tariffs were like a bridge taking U.S. trade policy from IEPA tariffs, which were held illegal, to these more durable tariffs, but the more durable tariffs aren't yet in place.

26:28So the 122 tariffs were like a stopgap to allow imposition of a global tariff that applied to nearly all imports into the United States. Do you think that the decision regarding the 122 tariffs, do you think that that's a solid decision or it might be reversed on appeal? It certainly could be reversed on appeal. The United States, in asking the Court of Appeals for the Federal Circuit, laid out some of its arguments about why it thinks the Court of International Trade was wrong. Notably, they say that the statute doesn't define the key phrase that the administration was relying on to impose Section 122 tariffs, which is a persistent balance of payments problem.

27:16That term of art isn't defined. And so part of the administration's argument is that the Court of International Trade didn't give them sufficient deference in finding that circumstances existed to allow them to impose the global tariff as a result of a balance of payments deficit. I think at the Court of Appeals, they'll certainly take a fresh look at this and could certainly find their own reasons either to uphold or strike down the tariffs again, apart from what the Court of International Trade said. So, you know, I think it'll be, you know, sort of refought again entirely at the appellate level.

27:57And it's really tough to predict what the outcome will be. Why grant a stay? The government is claiming it would face irreparable harm. What irreparable harm? I mean, they just had the Supreme Court undoing tariffs, and we see refunds now. So where's the irreparable harm? The administration points to the need to continue imposing tariffs as a policy choice that they've made, and the fact that importers might rush to import goods absent the tariffs. They say that they've negotiated a series of trade agreements that are premised on the idea that tariffs are imposed on goods coming into the United States.