Supreme Court Mulls Limiting Race-Based Voting Maps & Reagan-Era Judges Push Back

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1:56Richard Briffault:This is Bloomberg Law with June Grosso from Bloomberg Radio.

2:02Jacqueline Thomsen:It's a very complicated case involving a challenge to the drawing of a black majority district in Louisiana. But one thing was clear during the two and a half hours of oral arguments at the Supreme Court. The six conservative justices are ready to limit a key part of the Voting Rights Act that for more than half a century has been a guardrail against racially gerrymandered maps that dilute the votes of minorities. The law was passed in response to rampant discrimination against black voters in the South, and Justice Brett Kavanaugh questioned whether it was still warranted 60 years later.

2:43Richard Briffault:Race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite and should have an endpoint. And what exactly do you think the endpoint should be or how would we know for the intentional use of race to create districts?

3:09Jacqueline Thomsen:But liberal justice Elena Kagan pointed out that the remedy of redrawing districts only happens in a case where a court has found a specific proved discrimination by the state. What these Section 2 suits do is they ask about current conditions, and they ask whether those current conditions show vote dilution, which is violative of Section 2. So they say, is there racial segregation, racial residential segregation now? Is there racially polarized voting now? And when the state fails with respect to those issues, when those conditions obtain now. However, other conservative justices like Neil Gorsuch suggested that any use of race as a factor in redistricting, even to correct a state's discriminatory dilution of minority voters, is unconstitutional.

4:11Jacqueline Thomsen:I'm asking, is it acceptable under Section 2, as you understand it, given our precedence, for a court to intentionally discriminate in a remedial map on the basis of race? How quickly the court hands down its decision could determine whether or not states will have sufficient time to redraw maps, if permissible, before the midterms. My guest is elections law expert Richard Brafalt, a professor at Columbia Law School. Rich, before we get to the facts of the case and the oral arguments, I want to ask you about the impact of this decision if the justices, as expected, limit or eliminate Section 2 of the Voting Rights Act.

4:57Richard Briffault:It's not clear they're going to do away with Section 2, although they will clearly change how they interpret it. I think it's tricky because it's not clear how many districts it's going to affect. It clearly will affect some districts. It clearly will mean that certain lawsuits to improve minority representation won't be brought. Probably the harder thing to figure out is to what extent certain districts that have already been created as minority opportunity districts, even if they weren't a result of litigation but were done either defensively as a way of forestalling litigation or because the local legislatures thought it was the right thing to do, whether those can now be attacked as reflecting an excessive attention to race.

5:39Richard Briffault:We don't know what the court's going to say and we don't know how far this will go in terms of unraveling pre-existing, you know, districting practices. But certainly whatever they do, it will definitely have an impact on minority representation and potentially on partisan representation as well.

5:57Jacqueline Thomsen:Tell us about what the issue is here.

5:59Richard Briffault:It's almost, it's very hard to explain what the issue is. It's a very complicated case. I mean, the underlying issue is to what extent can or must states take race into account in drawing their districts. This case grew out of an earlier case in Louisiana, where the plaintiffs argued under Section 2 of the Voting Rights Act that a minority, in this case African-American or Black voter representation, was illegally reduced, that the state is approximately a third Black, but only one out of the six congressional districts had a majority-minority population. And the plaintiffs were able to persuade a lower court that it was relatively easy to draw a second-majority-minority district, and that the state's failure to do so under the totality of the circumstances, including the nature of racial block voting in the state and historical factors in the state constituted a denial of equal representation.

6:54Richard Briffault:The state went ahead and did that, but they did it in such a way that by taking certain partisan factors into account, they created a very strange looking district that kind of goes across much of the state, even though the plaintiffs, when they brought their case, had proposed a much more compact district. Well, now another set of voters in this new district have brought a lawsuit saying that this district is drawn predominantly for racial reasons. And drawing on older Supreme Court president, they argue that that's unconstitutional. The plaintiffs in the original case are trying to defend the district by saying that it's okay to use race, even in the significant way, when it's being used as a remedy for prior racial discrimination.

7:35Richard Briffault:And that's really in the issue here is, when is it okay to use race in drawing districts? And maybe to what extent is it permissible to use race in drawing districts? That becomes the big question.

7:48Jacqueline Thomsen:The Supreme Court originally heard oral arguments in the case in March, but didn't reach a decision and added sort of a new wrinkle for the current oral arguments.

8:00Richard Briffault:The court asked for more briefing on the constitutional question of the constitutionality of using race in this context. Again, to back up, the court has said in the past in a leading case called Shaw, which was decided in 1993, that the predominant use of race, when race is the predominant factor in line drawing, that is subject to strict judicial scrutiny and can only be satisfied if there's a compelling state interest. And they assume without actually deciding that compliance with Section 2 of the Voting Rights Act is a compelling state interest. In some sense, this case raises the question of whether compliance with the Voting Rights Act is a compelling state interest.

8:40Richard Briffault:Or again, it could be turned out to what can the Voting Rights Act permissively require? How is the court going to triple the Voting Rights Act? There are a lot of questions, all sort of tied up in a knot in this case, and it could come out in many different ways. I mean, one thing that seems pretty clear is that the original plaintiffs, the Black voters who sued for change, are likely to lose. They did win in the lower court, and the map was redrawn in their favor. But the challengers to that map, I think, are likely to win. But on what theory could be any from a relatively narrow theory to an extremely broad theory?

9:15Richard Briffault:And to some extent, you heard that in the oral argument where three different lawyers were making the case against the current district. The original plaintiffs challenging the current district. The state of Louisiana, which originally had defended the districts and then changed its position, And the state of Louisiana drew these districts, but are now saying that they believe they're unconstitutional. And the U.S. government, the Trump Justice Department. And they each presented slightly different theories as to why the districts are invalid and what would be the proper use of race in line drawing.

9:48Jacqueline Thomsen:Yeah, that's three against one seemed a little bit unbalanced. Now, the conservative justices, would you say they're sort of on a spectrum from a position of there should be no consideration of race at all in redistricting to something less?

10:07Richard Briffault:I think I would phrase it in terms of how much, how big a change do they want to make in the law? And when can race be used? And I do think you have the sense that some didn't think race could be used at all. Others, I think, were open to the use of race, but only in a relatively narrow set of circumstances. And I think a lot of it had to do with how do they fit this decision with an earlier Supreme Court decision, one that is now almost 40 years old, in which they interpreted the Voting Rights Act, Section 2 of the Voting Rights Act, laid down a case called Jingles, which set the pattern for Voting Rights Act enforcement for the last 40 years, including just two years ago, when the Supreme Court in a case coming out of Alabama, which on fairly similar facts to this one, sustained the use of race in drawing a remedial district.

10:54Richard Briffault:And so I think what you saw, what's called on the more moderate conservatives, So Justice Barrett, maybe Justice Kavanaugh, maybe the chief justice looking for ways of squaring this case with that Alabama case known as Milligan or explaining why this case could come out differently and maybe explaining how this case fits with the older precedent, Jingles. And are they going to overturn Jingles? Are they going to say this is a clarification of Jingles, which would be a way of changing it without flat out changing it? So I do think my guess is less likely that you're going to see a majority striking down the Voting Rights Act, but you're going to definitely see a new interpretation of how it applies and what it requires.

11:41Richard Briffault:At least based on the oral argument, and it's always tricky to rely on the oral argument. I mean, we're not going to see a decision for quite some time, but you did see at least some of the justices trying to figure out how to square this with a decision that's just two years old and with a precedent that is 40 years old.

11:59Jacqueline Thomsen:Chief Justice Roberts, who voted with Justice Kavanaugh and the liberals in that Alabama case, asked how the court could differentiate the case. He said that case took the existing precedent as a given.

12:12Richard Briffault:I think that provides a basis for saying why they're not bound by the case, that the validity of Jingles and its interpretation were not really being challenged in the Alabama case. And as they pointed out, the state in the Alabama case had certain very specific arguments and those specific arguments were rejected. The court is now hinting that all they ruled on in the Alabama case were the specific objections that Alabama raised to the lower court's order in that case, but that they had not definitively ruled on either the meaning of the Jingles decision or the meaning of Section 2 of the Voting Rights Act.

12:49Jacqueline Thomsen:Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Richard Brafalt of Columbia Law School. The timing of the court's decision is key. An early decision could affect the midterms and boost the Republicans' chance for electoral success. And later in the show, Reagan-appointed judges are not afraid to criticize the president and his administration. I'm June Grosso, and you're listening to Bloomberg. support for the show comes from public.com if you're actively involved in your portfolio you probably catch yourself repeating the same actions buying the dip manually sweeping idle cash putting on a hedge on public you can now create ai agents that handle all these tasks on your behalf just describe what you want to do in plain english like if the vix hits 25 buy a put option on the s &p 500 or if my cash balance goes above$20 ,000, move the excess into my direct index.

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15:10Jacqueline Thomsen:Designed to meet the needs of business owners at scale, this pay-in-full card elevates your travel experience and offers premium benefits and value toward business services that will take your business to the next level. Fuel your business and maximize rewards with 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, annual partnership credits, and more. Make every journey more rewarding with a$300 annual travel credit and access to a network of airport lounges, whether you're looking for pre-flight productivity or time to rest and recharge.

15:45Jacqueline Thomsen:Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. I think the results would be pretty catastrophic. If we take Louisiana as one example, every congressional member who is black was elected from a VRA Opportunity District. We only have the diversity that we see across the South, for example, because of litigation that forced the creation of Opportunity Districts under the Voting Rights Act.

16:28Jacqueline Thomsen:Every justice in Louisiana has been elected through a VRA Opportunity District, and nearly all legislative representatives have been elected on those same districts. So Louisiana alone is an example of how important it is to have Section 2 continue to be enforced to create these opportunities. That was Civil Rights Attorney Janine Nelson describing what the results of ending Section 2 of the Voting Rights Act would look like. Nelson was defending the creation of a second black majority congressional district in Louisiana. During the oral arguments, the Supreme Court's conservatives suggested they'll limit the use of race in drawing legislative maps, a move that could undermine the last major pillar of the Voting Rights Act.

17:17Jacqueline Thomsen:The court already declared Sections 4 and 5 of the Voting Rights Act unconstitutional in the Shelby County v. Holder case in 2013. I've been talking to elections law expert Richard Brafalt, a professor at Columbia Law School. So, Rich, after hearing the oral arguments, do you think that the best possible outcome here for voting rights advocates would be that the court sends the case back to the lower court to draw a new map? Of course, the worst case scenario is that the court just throws out Section 2.

17:53Richard Briffault:It's complicated because this case is not an appeal of the earlier case that struck down the old Louisiana map and said you need a second district. This case is an appeal of the new map, which has the second district, which clearly reflects attention to race. So it's a little unclear, but they might very well conclude that this is an illegal map or an unjustified map and strike it down. And then, yes, you know, have to send it back to the lower court. And then lower court, presumably, then give it to the Louisiana legislature, which would then probably go back to the original map. Because in the earlier case, the case we'll call Robinson, as several of the justices have pointed out, there was no final judgment in that case.

18:38Richard Briffault:There was it was a decision on a preliminary injunction. And the lower court didn't impose a map. The state basically decided that the legislature wanted to write its own map and not take the risk of a court imposed map. So they went and drew up a map before there was actually a final judgment by the district court in the Robinson case, which I say, say this is a complicated case. And you may very well see that the court giving new instructions as to what the Section 2 of the Voting Rights Act require and what does the Equal Protection Clause prohibit in terms of the use of race in drawing lines.

19:11Richard Briffault:I want to read because there are a number of different factors running around in this case. There was an argument about one of the key elements in the voting rights litigation until now has been proving the presence of racial, what's called racial block voting. That is blacks and whites voting very differently from each other. The Justice Department, the Trump Justice Department, basically said that these days it's impossible to separate race from party, that this is really partisan gerrymandering. and the Supreme Court has given the green light to that so that they would want to raise the burden very heavily on plaintiffs to separate race from party.

19:46Richard Briffault:And if they can't, then you don't have a win, then you don't have a Voting Rights Act violation. That, I think, is an argument that might draw some appeal in the Supreme Court. So the Trump administration basically said, yes, you might be able to use race as a remedy, but only if you could really prove that it was race that was driving the voting outcomes and not party and putting a very heavy burden on the plaintiffs, a much heavier burden on the plaintiffs to show that than had been the case until now.

20:14Jacqueline Thomsen:And what were the best arguments that the liberal justices made, not that they'll have any persuasive effect on their conservative colleagues?

20:24Richard Briffault:The liberal justices, I think, primarily, basically, relying heavily on stare decisis. That is, we've decided this before, including two years ago that this case is on all fours with the Alabama case. So that's one. Two, another version of stare decisis is there is a doctrine that says that court opinions interpreting statutes get super strong stare decisis, have super strong presidential effect, because whereas court decisions interpreting the Constitution really can't be overturned except through an extraordinary process of constitutional amendment, court decisions interpreting a statute, Congress can always overturn them.

21:03Richard Briffault:And Congress has not tampered with the Voting Rights Act since 1982. So there's kind of two stare decisis arguments here, one based on the Milligan case, the other based on jingles and saying Congress has not bothered with that case for 40 years. The other, I think, was a third argument and didn't come up as much in this argument as people might have thought. If you go back to the Alabama case, you mentioned that Kavanaugh was in the majority. He wrote a concurrence. I'm not sure if he was in a majority or whether he just concurred. He echoed some of the language Justice O 'Connor had used many years earlier in dealing with affirmative action and saying, there's got to be some time limit for this, that it's not clear how much longer you can keep taking effects into account in remedies.

21:49Richard Briffault:And much of the argument of the lawyer for the NAACP and the liberal justices is, well, actually, there is a built-in time limit in Section 2, plaintiffs have to show that there is current racial block voting, that there is a current disparate impact. And so therefore, it's not something that goes on forever. If plaintiffs can't make that showing, they lose. And they made the point that in much recent litigation, plaintiffs have lost a lot of voting rights cases, that they don't win a majority of their cases. And so the concern that this is going to lead to a kind of endless kind of racialization of line drawing, they're saying it's just very overdrawn.