The Voting Rights Act Is in Jeopardy

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2:02The all-out war over an unusual mid-decade redistricting in Texas is escalating and spreading across the country. Texas Governor Greg Abbott ordered the arrest of Democratic lawmakers who left the state to block a vote on new congressional maps. And President Trump hasn't ruled out federal involvement. Well, I think they've abandoned the state. Should the FBI get involved? Well, they may have to. But the Democratic lawmakers, like state Representative James Tallarico, say they're not budging. We're not very worried about the consequences we may face, whether they are arrest or financial fines or even removal from office, because we have right on our side.

2:45We are part of a long American tradition of looking bullies in the eye, of speaking truth to power, of civil disobedience, of good trouble. That is how this democracy was forged. And we are participating in that tradition and we're proud to do it. And several Democratic states are threatening retaliatory redistricting. My guest is elections law expert Rick Hassan, a professor at UCLA Law School. So Rick, Texas already gerrymandered its maps in 2021, and that's still in the courts. Is what it's doing now trying to redistrict again to get five extra Republican seats, is that constitutional? Well, that remains to be seen.

3:29What's going to happen if Texas draws its districts again is they will almost certainly be challenged as violating either the Voting Rights Act or as violating the Constitution's prohibition on racial gerrymandering. And that'll get tied up in the courts, just as the current round of redistricting is going to get tied up in the courts. What the federal courts are not going to do is say it's unconstitutional as a partisan gerrymander that is drawing the district lines to favor Republicans over Democrats. Because back in 2019, the Supreme Court decided a case called Russo v. Common Cause, where the court said that there are no standards to judge under the Constitution whether partisan gerrymandering goes too far.

4:13Several blue states have threatened retaliatory redistricting, but two key states, New York and California, have commissions drawing up the maps. So would they be able to retaliate in time for the midterms? Well, as far as the California case goes, which is the one I'm most familiar with living here in California, The way that registering could be done consistent with state law in the middle of the decade would have to be through a voter-passed measure because voters earlier passed a measure, actually two ballot measures, establishing a nonpartisan or multipartisan commission and then extending that commission's job to include drawn congressional districts.

4:57To overturn a ballot measure in California, you need a new ballot measure. So what the legislature and the governor are talking about doing now is drafting a new redistricting plan and putting it before voters in a special election. If it passes, the new redistricting plan would be in effect. And then that could be challenged in court. But I think that, again, because partisan gerrymandering is not something that federal courts will police, there wouldn't be much of a federal basis unless you can make an argument, again, like under the Voting Rights Act or as a racial gerrymander, the districts somehow are illegal.

5:29If there is an all-out redistricting war, red states versus blue states, would the red states or the Republicans ultimately win because they're in control of more states? Well, so to answer that question, you need to know not just how many states do Republicans control, but how much more redistricting on partisan grounds could they squeeze out of their already existing plan? I'm not an expert on the politics of all of this, but what I understand is if all the states that could do more did do more, it would probably end up benefiting Republicans more than Democrats. But in each state, as our discussion's already shown, the particulars of state law and the particulars of the state map that's already in existence are going to dictate some of that.

6:14I do think, though, that it's very bad for our politics if everyone is trying to maximize their congressional districts for, you know, the most they can squeeze out. I mean, it just creates more of a winner-take-all, no-holds-barred, all-out-war kind of mentality, which I think just further polarizes everyone in the country. It's sort of startling to hear the Republicans in Texas and the president say, you know, we're doing this to get more seats. But, I mean, this is something, as you've written, that Congress could cure. Yeah, but let me go back first to why are they saying this? Well, one reason why we've seen legislators in Texas and earlier in North Carolina say we are doing a partisan gerrymander, like proudly admitting it, it's because they're trying to deflect the argument, no, you're doing this on racial grounds.

7:02You're doing this to make it harder for black and Latino and Native American voters to elect their candidates of choice, which could raise a Voting Rights Act question or could raise a racial gerrymandering question under the Equal Protection Clause. So if the Supreme Court says, we're not going to police politics, but we are going to police race, then of course, they want to say, if they're trying to defend it, we're just doing politics. And so the courts have to try and sort that out, which is a very difficult thing to do when in a place like Texas, minority voters are much more likely to vote for Democrats and white voters for Republicans.

7:35You're right that Congress could do something. Article one of the Constitution tells states they can set their rules for running congressional elections, but Congress at any time can make new rules or alter those state rules. And so if Congress wanted to say no mid-decade redistricting or establish commissions or set a standard for when partisan gerrymandering goes too far, Congress would have the power to do that under this provision of Article I, known as the Elections Clause. I just don't think there's the political will in Congress. Given our polarization, given this all-out war, there's no reason to expect that Congress is going to do it anytime soon.

8:11You mentioned racial gerrymandering. And the Supreme Court is ordering re-argument of a case that was argued last March involving a Louisiana congressional map that created an additional majority black district. Explain what's happening there. So what we're talking about here is a case called Louisiana v. Calais, and it was already argued last March. And it was one of these cases where the Louisiana legislature, thanks to an earlier lawsuit, drew a second congressional district where black voters could elect their candidate of choice to a congressional district. And the argument in the earlier case was you had to draw the second district to comply with Section 2 of the Voting Rights Act.

8:56Well, then a new group of voters came in and they said, hey, when you drew that second district, you made race the predominant factor in drawing those lines. and you don't have a compelling reason to do so, and therefore you're committing a racial gerrymander in violation of the 14th Amendment's Equal Protection Clause. Back in March, the court heard argument in that case where the main issue was, was race really the predominant factor, the main reason why the second lines were drawn the way they were, or was it really about politics? If it's really about politics, then it's not a racial gerrymander.

9:29Again, I find this distinction and nonsensical when you have so much overlap between race and party in these southern states. But it looked like yet another in a series of cases where the court's deciding whether race or party predominates. But then at the end of the Supreme Court's term in June, rather than decide the case, the court issued a somewhat unusual order saying, we're going to hear re-argument in the case. We're going to want additional briefing, but we're not telling you yet what we want the briefing on. And then it was not until last Friday, so August 1st, after 5 p.m., Friday night news dump where the court issued this kind of obscure cryptic order that I read as really asking the question whether Section 2 of the Voting Rights Act remains constitutional.

10:12And the way this comes into the case is if race did predominate, then the only way you can do that as drawing district lines is if you have a compelling reason to do so. And the compelling reason that has been considered is, well, the Voting Rights Act made me do it. I had to do it to comply with Section 2. Now the court wants to hear maybe it's unconstitutional to apply Section 2 and make race the predominant factor when you're drawing these district lines. So it really brings these two lines of cases, the Voting Rights Act cases and the racial gerrymandering cases together in a way where the Voting Rights Act may lose.

10:48Here we are recording this on the 60th anniversary of the passage of the Voting Rights Act, and the Supreme Court appears poised to consider striking down the second big pillar of the Voting Rights Act after it had already struck down the first pillar in 2013 in the Shelby County v. Holder case. Many of the court's conservatives have been what you might call hostile to the Voting Rights Act, and some seem to think that the Voting Rights Act no longer provides a legitimate basis for mapmakers to intentionally create majority black or majority Hispanic districts? Well, so the most recent piece of evidence we have on what the court thinks about the Voting Rights Act, aside from this order that came out in the Louisiana case, is a case that was decided a few years ago out of Alabama involving very similar facts of the Voting Rights Act requiring the drawing of an additional black majority district.

11:47And in this case, Allen v. Milligan, the Supreme Court on a five to four vote upheld the requirement that these districts be drawn. The two conservatives who were in the majority with the three liberals on the court were Chief Justice Roberts and Justice Kavanaugh, making it a five to four decision with Justices Gorsuch, Barrett, Alito, and Thomas in dissent. But Justice Kavanaugh in the majority wrote separately to say, I'm intrigued by the argument that maybe Section 2 is no longer constitutional because of the passage of time and the changes in political conditions. This isn't the case to decide that, but there may come a case down the line where we need to address that.

12:26And I think now this Louisiana case is that case. So Kavanaugh could prove to be the fifth vote. And Roberts, who has shown some hostility in Voting Rights Act cases in the past, including the Shelby County case I mentioned, could be a sixth vote. If the court divides along party lines, along ideological lines, the Voting Rights Act Section 2 could either be whittled down or killed off. And so what started off as a pretty small, not blockbuster case out of Louisiana could turn out to be the most important voting rights case of this decade. Coming up next on the Bloomberg Law Show, I'll continue this conversation with UCLA Law Professor Rick Hassan.

13:08What are the consequences of getting rid of Section 2 of the Voting Rights Act? I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. DoorDash, the largest food delivery company in the U.S., is building its own delivery drones and has gained the necessary FAA approvals to operate them commercially, the latest in its effort to delegate more orders to robots as a way of cutting delivery times. Bloomberg's Natalie Lung reports the company says it has been conducting pilot programs with various restaurants, some of which have seen their order volume grow during the test period.

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15:46PayPal Open, built for all business. Visit PayPalOpen.com to get started. That's PayPalOpen.com. I've been talking to UCLA Law Professor Rick Hassan about the Supreme Court indicating it will consider outlawing the use of race in drawing voting maps. This sets up a blockbuster showdown with implications for dozens of congressional districts with predominantly minority populations. Rick, as you mentioned, in 2023, the Supreme Court prohibited Alabama from using a voting map that the justices found unlawfully diminished the power of black voters. I mean, that was just a few years ago. Why do you think the court has reached this sort of monumental moment or decision now?

16:39Well, you know, John Roberts likes to move slowly. Let's just take the killing off of Section 5 of the Voting Rights Act, which happened in Shelby County. That was the provision that said that states with a history of racial discrimination in voting need to get approval before they make their voting changes to make sure that minority voters would not be made worse off. Congress renewed Section 5 in 2006. the Supreme Court first took up the issue of overturning Section 5 in 2009 in a case called Northwest Austin, Municipal Utility District No. 1 v. Holder. And in that case, the court punts it on the question, but strongly signals that in a future case, it could strike down Section 5.

17:22It was not until 2013, right? So you're talking about seven years after Congress Acts, that Roberts was finally ready to pull the trigger. And so Roberts moves slowly. He whittles things away. And again, the court in the Louisiana case could whittle it away at the Voting Rights Act, make it essentially toothless without striking it down directly. But I think what's coming is not likely to be good for the Voting Rights Act. So you think they might strike it down completely? They might strike it down completely, or they might say it's unconstitutional as applied in Louisiana, and then it will take time to figure out, well, what does that mean?

17:57How does it apply in other cases? That would be much more of a John Roberts faux minimalist move, looking like they're moving slowly. But in fact, I was telling my editor of the piece that I wrote, Slate, about this, that the media loves to cover the car crash, the Texas redistricting, legislators getting on planes, and that's great visuals, great story. But the Supreme Court does slow poisoning. And so it's very hard to cover. So here's an order that's issued, you know, Friday after 5 p.m. in August. I mean, which journalists want to work then? And then who's going to cover it on the weekend about a case that they're going to hear arguments about probably sometime in December or maybe in January?

18:43And then they'll issue an opinion in June that will be very hard to understand. So the court is still doing a lot of damage, but it does it in a way that is much harder to cover and much harder for the public to grasp. Speaking about being hard for the public to grasp, what kind of theory might the conservatives use if they decide to strike down Section 2? So the theory that the conservatives could adopt in striking down Section 2 or in whittling it away is that the Equal Protection Clause, the 14th Amendment and the 15th Amendment's prohibition on discriminating and voting on the basis of race require a kind of colorblindness, that you can't take race into account when you do something like draw political maps.

19:31That view of the Constitution is at odds with the view of the Constitution as preventing discrimination against minority voters. So the whole reason that the Reconstruction Amendments after the Civil War, the 13th Amendment abolishing slavery, the 14th Amendment including equal protection, the 15th Amendment barring race discrimination, the reason for those amendments was to protect blacks, former slaves, from discrimination. And here, the court, if it adopts a colorblind view of the Constitution, would really be perverting what it is that these amendments were meant to do, which is to allow for the protection of minority voters.

20:10It would be turning these amendments on their head to say that congressional legislation to protect black and other minority voters is itself unconstitutional. But that seems like there are at least three and as many as six justices on the court that are going to be willing to embrace that view of congressional power and the Voting Rights Act. What are the consequences if the court does eliminate Section 2 of the Voting Rights Act? Right now, much Black, Latino, and Native American representation happens in state legislatures because of the Voting Rights Act. That is, the Voting Rights Act is one of the remaining constraints that allows for this kind of fairness, basic fairness and representation.

20:53It would make our legislatures and our Congress much whiter. It would, I think, trigger a political reaction. And I think it could actually trigger a new voting rights movement because this would be the Supreme Court being so hostile to the Voting Rights Act. Remember, in the Constitution, in both the 14th and 15th Amendments, the Constitution gives Congress the power to enforce the 14th and 15th Amendments. These powers are given to Congress to protect minority voters, and the Supreme Court is whittling away or killing off Congress's ability to do this. And I think that it makes the courts hostility to voting rights a direct political issue.

21:35It would have changes in the way our politics runs from Congress in the broadest sense to state legislatures down to city council races in places where there are large concentrations of minority voters and where whites and minority voters tend to vote for different candidates. It would be an earthquake in our politics. And I don't think that it would be taken well by many people who would see the Supreme Court as really going too far in taking away Congress's power to help protect minority voters, as was the promise of the 14th and 15th amendments. And if that happens, would there be ways to challenge maps?

22:15If you can't do it for partisan reasons and you can't do it for racial reasons, are there other reasons? Well, there would still be the one person, one vote requirement, which means you have to draw districts with roughly equal population. But even with that requirement, that imposes very little constraint on the ability to draw lines for the party in power to do what it wants. Racial gerrymandering cases would be much less likely to be successful as well because there'd be no need to comply with the Voting Rights Act, which is where this whole line of cases comes from in the first place. So it would be, unless Congress acts or unless the Constitution is amended or Congress passes new legislation, it would really be turning the clock back to the mid-1960s in terms of representation.

23:01And that, I think, is very dangerous for a multicultural democracy that we have today. Well, the Louisiana case certainly seems like the case to watch next term. It's great to have you on the show again, Rick. That's Professor Rick Hassan of UCLA Law School. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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