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The Voting Rights Act Is in Jeopardy · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg.
• 0:06
  Speaker 2: Radio mean eighty five eyes and six nays.
• 0:11
  Speaker 3: The motion prevails. The Sergeant at Arms and any officers
• 0:14
  Speaker 3: appointed by her are directed to send for all absentees
• 0:17
  Speaker 3: whose attendance is not.
• 0:18
  Speaker 2: Excused for the purposes of securing and maintaining their attendants
• 0:22
  Speaker 2: under warrant of arrest if necessary.
• 0:25
  Speaker 1: Arrest warrants, threats of prosecution and removal from office, and
• 0:29
  Speaker 1: possible federal involvement. The all out war over an unusual
• 0:34
  Speaker 1: mid decade redistricting in Texas is escalating and spreading across
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  Speaker 1: the country. Texas Governor Greg Abbott ordered the arrest of
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  Speaker 1: Democratic lawmakers who left the state to block a vote
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  Speaker 1: on new congressional maps, and President Trump hasn't ruled out
• 0:51
  Speaker 1: federal involvement.
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  Speaker 2: Well, I think they've abandoned the state.
• 0:56
  Speaker 1: Well, they may have to, but the Democratic lawmakers, like
• 0:59
  Speaker 1: state Representative James tallerco say they're not budging.
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  Speaker 2: We're not very worried about the consequences we may face,
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  Speaker 2: whether they are arrest or financial fines or even removal
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  Speaker 2: from office, because we have right on our side. We
• 1:15
  Speaker 2: are part of a long American tradition of looking bullies
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  Speaker 2: in the eye, of speaking truth to power, of civil disobedience,
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  Speaker 2: of good trouble. That is how this democracy was forged.
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  Speaker 2: And we are participating in that tradition and we're proud
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  Speaker 2: to do it.
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  Speaker 1: And several democratic states are threatening retaliatory redistricting. My guest
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  Speaker 1: is elections law expert Rick Hassen, a professor at UCLA
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  Speaker 1: Law School. So, Rick, Texas already jerrymandered it's maps in
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  Speaker 1: twenty twenty one, and that's still in the courts. Is
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  Speaker 1: what it's doing now, trying to redistrict again to get
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  Speaker 1: five extra Republican seats. Is that constitutional?
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  Speaker 3: Well, that remains to be seen. What's going to happen
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  Speaker 3: and if Texas draws its districts again is they will
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  Speaker 3: almost certainly be challenged as violating either the Voting Rights
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  Speaker 3: Act or as violating the Constitution's prohibition on racial jerrymanagering.
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  Speaker 3: And that'll get tied up in the courts, just as
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  Speaker 3: the current round of redistricting is going to get tied
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  Speaker 3: up in the courts. What the federal courts are not
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  Speaker 3: going to do is say it's unconstitutional as a partisan
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  Speaker 3: gerrymander that is, drawing the district lines to favor Republicans
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  Speaker 3: over Democrats, because back in twenty nineteen, the Supreme Court
• 2:32
  Speaker 3: decided a case called Rusho versus Common Cause, where the
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  Speaker 3: Court said that there are no standards to judge under
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  Speaker 3: the Constitution whether partisan jerry managering goes too far.
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  Speaker 1: Several Blue states have threatened retaliatory redistricting, but two key states,
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  Speaker 1: New York and California, have commissions drawing up the maps.
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  Speaker 1: So would they be able to retaliate in time for
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  Speaker 1: the midterms.
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  Speaker 3: Well, as far as the California case goes, which is
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  Speaker 3: one I'm most familiar with living here in California, the
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  Speaker 3: way that registring could be done consistent with state law
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  Speaker 3: in the middle of the decade would have to be
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  Speaker 3: through a voter passed measure, because voters earlier passed to
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  Speaker 3: measure actually two ballot measures, establishing a non partisan or
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  Speaker 3: multi partisan commission and then extending that commission's job to
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  Speaker 3: include drawing congressional district To overturn a ballot measure in California,
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  Speaker 3: you need a new ballot measure. So what the legislature
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  Speaker 3: and the governor are talking about doing now is drafting
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  Speaker 3: a new registioning plan and putting it before voters in
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  Speaker 3: a special election. If it passes, the new registing plan
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  Speaker 3: would be in effect, and then that could be challenged
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  Speaker 3: in court. But I think that again, because partisan jerry
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  Speaker 3: managering is not something that federal courts will police, there
• 3:50
  Speaker 3: wouldn't be much of a federal basis unless you can
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  Speaker 3: make an argument, again like the voting rights actor, as
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  Speaker 3: a racial ferry manager, the district somehow are illegal.
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  Speaker 1: If there is an all out redistricting war red states
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  Speaker 1: versus blue states, would the red states or the Republicans
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  Speaker 1: ultimately win because they're in control of more states.
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  Speaker 3: Well, so to answer that question, you need to know
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  Speaker 3: not just how many states to Republicans control, but how
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  Speaker 3: much more redistricting on partisan grounds could they squeeze out
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  Speaker 3: of their already existing plan. I'm not an expert on
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  Speaker 3: the politics of all of this, but what I understand
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  Speaker 3: is if all the states that could do more did
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  Speaker 3: do more, it would probably end up benefiting Republicans more
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  Speaker 3: than Democrats. But in each state, as our discussions already shown,
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  Speaker 3: the particulars of state law and the particulars of the
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  Speaker 3: state map, that's already in existence are going to dictate
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  Speaker 3: some of that. I do think though, that it's very
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  Speaker 3: bad for our politics. If everyone is trying to maximize
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  Speaker 3: their congressional districts for you know, the most they can
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  Speaker 3: squeeze out. I mean, it just creates more of a
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  Speaker 3: winner take all, no holds barred, all out war kind
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  Speaker 3: of mentality, which I think just further polarizes everyone in
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  Speaker 3: the country.
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  Speaker 1: It's sort of startling to hear the Republicans in Texas
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  Speaker 1: and the presidents say, you know, we're doing this to
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  Speaker 1: get more seats, But I mean, this is something, as
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  Speaker 1: you've written, that Congress could cure.
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  Speaker 3: Yeah, well, let me go back first to why are
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  Speaker 3: they saying this. Well, one reason why we've seen legislators
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  Speaker 3: in Texas and earlier in North Carolina say we are
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  Speaker 3: doing a partisan jerimander like proudly admitting it, it's because
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  Speaker 3: they're trying to deflect the argument, No, you're doing this
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  Speaker 3: on racial grounds. You're doing this to make it harder
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  Speaker 3: for black and Latino and Native American voters to elect
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  Speaker 3: their candidates of choice, which could raise a Voting Rights
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  Speaker 3: Act question or could raise a racial gerymander in question
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  Speaker 3: on the protection close. So if the Supreme Court says
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  Speaker 3: we're not going to police politics, but we are going
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  Speaker 3: to police race, then of course they want to say,
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  Speaker 3: if they're trying to defend it, we're just doing politics.
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  Speaker 3: And so the courts have to try and sort that out,
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  Speaker 3: which is a very difficult thing to do when in
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  Speaker 3: a place like Texas, minority voters are much more likely
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  Speaker 3: to vote for Democrats and white voters for Republicans. You're
• 6:05
  Speaker 3: right that Congress could do something. Article won. The Constitution
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  Speaker 3: tells states they can set their rules for running congressional elections,
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  Speaker 3: but Congress anytime can make new rules or alter those
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  Speaker 3: state rules. And so if Congress wanted to say no
• 6:19
  Speaker 3: mid decade registering or established commissions, or set a standard
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  Speaker 3: for when partisan jerry mandarin goes too far, Congress would
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  Speaker 3: have the power to do that under this provision of
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  Speaker 3: Article one, known as the Elections Clause. I just don't
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  Speaker 3: think there's the political will in Congress, given our polarization,
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  Speaker 3: given this all out war, there's no reason to expect
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  Speaker 3: that Congress is going to do it anytime soon.
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  Speaker 1: You mentioned racial jerry mandering, and the Supreme Court is
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  Speaker 1: ordering reargument of a case that was argued last March
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  Speaker 1: involving a Louisiana congressional map that created an additional majority
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  Speaker 1: black district. Explain what's happening there.
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  Speaker 3: So, what we're talking about here is a case called
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  Speaker 3: Louisiana versus Calais, and it was already argued last March,
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  Speaker 3: and it was one of these cases where the Louisiana legislature,
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  Speaker 3: thanks to an earlier lawsuit, drew a second congressional district
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  Speaker 3: where black voters could elect their cad of choice to
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  Speaker 3: a congressional district. And the argument in the earlier case
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  Speaker 3: was you had to draw the second district to comply
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  Speaker 3: with Section two of the Voting Right sect. Well, then
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  Speaker 3: a new group of voters came in and they said, hey,
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  Speaker 3: when you drew that second district, you made race the
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  Speaker 3: predominant factor in drawing those lines, and you don't have
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  Speaker 3: up a compelling reason to do so, and therefore you
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  Speaker 3: were committing a racial gerrymander in violation of the Fourteenth
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  Speaker 3: Amendments Equal Protection Clause. Back in March, the court heard
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  Speaker 3: argument in that case where the main issue was was
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  Speaker 3: race really the predominant factor the main reason why the
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  Speaker 3: second lines were drawn the way they were or was
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  Speaker 3: it really about politics. It's surely about politics, then it's
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  Speaker 3: not a racistarymander. Again, I find this distinct nonsensical when
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  Speaker 3: you have so much overlap between race and party in
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  Speaker 3: the Southern States. But it looked like yet another in
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  Speaker 3: a series of cases where the court's deciding whether race
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  Speaker 3: or party predominates. But then the end of the Supreme
• 8:12
  Speaker 3: Court's term in June, rather than decide the case, the
• 8:15
  Speaker 3: Court issued a somewhat unusual order saying we're going to
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  Speaker 3: hear reargument in the case, we're going to want additional briefing,
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  Speaker 3: but we're not telling you yet what we want the
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  Speaker 3: briefing on. And then it was not until last Friday,
• 8:27
  Speaker 3: the August first, after five pm Friday night news dump,
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  Speaker 3: where the Court issued this kind of obscure, cryptic order
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  Speaker 3: that I read as really asking the question whether Section
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  Speaker 3: two of the Voting Rights Sack remains constitutional. And the
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  Speaker 3: way this comes into the case is if race did predominate,
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  Speaker 3: then the only way you can do that, as in
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  Speaker 3: drawing district lines, is if you have a compelling reason
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  Speaker 3: to do so. And the compelling reason that has been
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  Speaker 3: considered is, well, the voting rightsac made me do it.
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  Speaker 3: I had to do it to comply with Section two.
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  Speaker 3: It wants to hear, maybe it's unconstitutional to apply Section
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  Speaker 3: two and make race the predominant factor when you're drawing
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  Speaker 3: these district minds. So it really brings these two lines
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  Speaker 3: of cases, the Voting Rights Act cases and the racial
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  Speaker 3: gerrymandering cases together in a way where the Voting Rights
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  Speaker 3: Act may lose. Here we are recording this on the
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  Speaker 3: sixtieth anniversary of the passage of the Voting Rights Act,
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  Speaker 3: and the Supreme Court appears poised to consider striking down
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  Speaker 3: the second big pillar of the Voting Rights Act after
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  Speaker 3: it had already struck down the first pillar in twenty
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  Speaker 3: thirteen in the Shelby County versus Holder case.
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  Speaker 1: Many of the Court's conservatives have been what you might
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  Speaker 1: call hostile to the Voting Rights Act, and some seem
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  Speaker 1: to think that the Voting Rights Act no longer provides
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  Speaker 1: a legitimate basis for map makers to intentionally create majority
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  Speaker 1: Black or majority Hispanic districts.
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  Speaker 3: Well, the most recent piece of evidence we have on
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  Speaker 3: what the Court thinks about the Voting Rights sack, aside
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  Speaker 3: from this order that came out in the Louisiana case
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  Speaker 3: is a case that was decided a few years ago
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  Speaker 3: out of Alabama involving very similar facts of the voting
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  Speaker 3: right fact requiring the drawing of an additional black majority district,
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  Speaker 3: and in this case Alan versus Milligan, the Supreme Court,
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  Speaker 3: on a five to four vote upheld the requirement that
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  Speaker 3: these districts be drawn. The two conservatives who were in
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  Speaker 3: the majority with the three liberals of the Court were
• 10:28
  Speaker 3: Chief Justice Roberts and Justice Cavanaugh, making it a five
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  Speaker 3: to four decision, with Justices Gorsich, Barrett, Alito, and Thomas dissent.
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  Speaker 3: But Justice Cavanaugh, in the majority, wrote separately to say,
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  Speaker 3: I'm intrigued by the argument that maybe Section two is
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  Speaker 3: no longer constitutional because of the passage of time and
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  Speaker 3: the changes in political conditions. This isn't the case to
• 10:51
  Speaker 3: decide that, but there may come a case down the
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  Speaker 3: line where we need to address that, and I think
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  Speaker 3: now this Louisiana case is that case. Kavanaugh could prove
• 11:01
  Speaker 3: to be the fifth vote, and Roberts, who has shown
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  Speaker 3: some hostility in Voting Rights Act cases in the past,
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  Speaker 3: including the Shelby County case I mentioned, could be a
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  Speaker 3: sixth vote. If the court divides along party lines, along
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  Speaker 3: ideological lines, the voting NIGHTSAX Section two could either be
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  Speaker 3: whittled down or killed off. And so what started off
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  Speaker 3: as a pretty small, not blockbuster case out of Louisiana
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  Speaker 3: could turn out to be the most important voting rights
• 11:30
  Speaker 3: case of this decade.
• 11:31
  Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue
• 11:34
  Speaker 1: this conversation with UCLA law professor Rick Hassen. What are
• 11:38
  Speaker 1: the consequences of getting rid of Section two of the
• 11:42
  Speaker 1: Voting Rights Act. I'm June Grosso. When you're listening to Bloomberg,
• 11:47
  Speaker 1: I've been talking to UCLA law professor Rick Hassen about
• 11:50
  Speaker 1: the Supreme Court indicating it will consider outlining the use
• 11:54
  Speaker 1: of race and drawing voting maps. This sets up a
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  Speaker 1: blockbuster showdown with imp locations for dozens of congressional districts
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  Speaker 1: with predominantly minority populations. Rick, as you mentioned, in twenty
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  Speaker 1: twenty three, the Supreme Court prohibited Alabama from using a
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  Speaker 1: voting map that the justices found unlawfully diminished the power
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  Speaker 1: of black voters. I mean that was just a few
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  Speaker 1: years ago. Why do you think the Court has reached
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  Speaker 1: this sort of monumental moment or decision.
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  Speaker 3: Now, well, you know John Roberts likes to move slowly.
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  Speaker 3: Let's just take the killing off of Section five of
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  Speaker 3: the Voting If Act, which happened in Shelby County. That
• 12:37
  Speaker 3: was the provision that said, the states with a history
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  Speaker 3: of racial discrimination in voting need to get approval before
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  Speaker 3: they make their voting changes to make sure that minority
• 12:45
  Speaker 3: voters would not be made worse off. Congress renewed section
• 12:49
  Speaker 3: five in two thousand and six. The Supreme Court first
• 12:54
  Speaker 3: took up the issue of overturning Section five in two
• 12:59
  Speaker 3: thousand and nine in a case called Northwest Austin Municipal
• 13:02
  Speaker 3: Utility District Number one versus Holder. And in that case,
• 13:06
  Speaker 3: the Court punts it on the question, but strongly signals
• 13:08
  Speaker 3: that in a future case it could strike down Section five.
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  Speaker 3: It was not until twenty thirteen, right, so you're talking
• 13:15
  Speaker 3: about seven years after Congress acts that Roberts was finally
• 13:18
  Speaker 3: ready to pull the trigger. And so Roberts moves slowly.
• 13:22
  Speaker 3: He whittles things away, and again the Court in the
• 13:25
  Speaker 3: Louisiana case could whittle it the way at the Voting
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  Speaker 3: Rights Act make it essentially toothless without striking it down directly.
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  Speaker 3: But I think what's coming is not likely to be
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  Speaker 3: good for the Voting Rights Act, So you think.
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  Speaker 1: They might strike it down completely.
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  Speaker 3: They might strike it down completely, or they might say
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  Speaker 3: it's unconstitutionalized applied in Louisiana, and then it will take
• 13:44
  Speaker 3: time to figure out, well, what does that mean? How
• 13:47
  Speaker 3: does it apply in other cases? That would be much
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  Speaker 3: more of a John Roberts faux minimalist move, looking like
• 13:52
  Speaker 3: they're moving slowly, but in fact, you know, I was
• 13:55
  Speaker 3: telling my editor of the piece that I wrote Slate
• 13:58
  Speaker 3: about this, that you know, the media loves to cover
• 14:01
  Speaker 3: the car crash, the Texas registricting, you know, legislators getting
• 14:05
  Speaker 3: on planes, and you know that's great visuals, great story.
• 14:09
  Speaker 3: But the Supreme Court does slow poisoning, and so it's
• 14:13
  Speaker 3: very hard to cover. Right. So here's an order that's issued,
• 14:16
  Speaker 3: you know, Friday after five pm in August. I mean,
• 14:21
  Speaker 3: which journalists want to work then? And then who's going
• 14:24
  Speaker 3: to cover it on the weekend about a case that
• 14:27
  Speaker 3: they're going to hear arguments about probably sometime in December
• 14:31
  Speaker 3: or maybe in January. And then the issue an opinion
• 14:34
  Speaker 3: in June that will be very hard to understand. So
• 14:38
  Speaker 3: the Court is still doing a lot of damage, but
• 14:40
  Speaker 3: it does it in a way that is much harder
• 14:43
  Speaker 3: to cover and much harder for the public to grasp.
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  Speaker 1: Speaking about being hard for the public to grasp, what
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  Speaker 1: kind of theory might the conservatives use if they decide
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  Speaker 1: to strike down Section two.
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  Speaker 3: So the theory that the concerns could adopt in striking
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  Speaker 3: down Section two or in whittling it away is that
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  Speaker 3: the equal protection clause the Fourteenth Amendment and the Fifteenth
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  Speaker 3: Amendments prohibition on discriminating and voting on the basis of race,
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  Speaker 3: require a kind of color blindness that you can't take
• 15:16
  Speaker 3: race into account when you do something like draw political maps.
• 15:21
  Speaker 3: That view of the Constitution is that odds with a
• 15:24
  Speaker 3: view of the Constitution as preventing discrimination against minority voters.
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  Speaker 3: So the whole reason that the reconstruction amendments after the
• 15:33
  Speaker 3: Civil War, the Thirteenth Amendment abolishing slavery, the Fourteenth Amendment
• 15:36
  Speaker 3: including equal protection, the Fifteenth Amendment barring race discrimination, the
• 15:41
  Speaker 3: reason for those amendments was to protect black's former slaves
• 15:44
  Speaker 3: from discrimination. And here the Court, if it adopts a
• 15:49
  Speaker 3: color blind view of the Constitution really be perverting what
• 15:53
  Speaker 3: it is that these amendments were meant to do, which
• 15:57
  Speaker 3: is to allow for the protection of minority voters. Turning
• 16:00
  Speaker 3: these amendments on their head to say that congressional legislation
• 16:04
  Speaker 3: to protect black and other minority voters is itself unconstitutional.
• 16:08
  Speaker 3: But that seems like there are at least three and
• 16:11
  Speaker 3: as many as six justices on the Court that are
• 16:13
  Speaker 3: going to be willing to embrace that view of congressional
• 16:16
  Speaker 3: power and the Voting Rights Act.
• 16:19
  Speaker 1: What are the consequences if the Court does eliminate Section
• 16:23
  Speaker 1: two of the Voting Rights Act.
• 16:26
  Speaker 3: Right now, much Black, Latino and Native American representation happens
• 16:31
  Speaker 3: in state legislatures because of the Voting Rights Act. That is,
• 16:34
  Speaker 3: the Voting Rights Act is one of the remaining constraints
• 16:37
  Speaker 3: that allows for this kind of fairness, basic fairness and representation.
• 16:43
  Speaker 3: It would make our legislatures and our Congress much wider.
• 16:47
  Speaker 3: It would, I think trigger a political reaction, and I
• 16:51
  Speaker 3: think it could actually trigger a new voting rights movement
• 16:54
  Speaker 3: because this would be the Supreme Court being so hostile
• 16:58
  Speaker 3: to the Voting Rights Act. Remember, in the Constitution, in
• 17:01
  Speaker 3: both the Fourteenth and fifteenth Amendments. The Constitution gives Congress
• 17:04
  Speaker 3: the power to enforce the Fourteenth and fifteenth Amendments. These
• 17:08
  Speaker 3: powers are given to Congress to protect minority voters, and
• 17:13
  Speaker 3: the Supreme Court is whittling away or killing off the
• 17:16
  Speaker 3: Congress's ability to do this, and I think that it
• 17:20
  Speaker 3: makes the courts hostility to voting rights a direct political issue.
• 17:24
  Speaker 3: It would have changes in the way our politics runs,
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  Speaker 3: from Congress in the broadest sense, to state legislatures down
• 17:32
  Speaker 3: to city council races in places where there are large
• 17:36
  Speaker 3: concentrations of minority voters and where whites and minority voters
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  Speaker 3: tend to vote for different candidates. It would be an
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  Speaker 3: earthquake in our politics. And I don't think that it
• 17:45
  Speaker 3: would be taken well by many people, who would see
• 17:48
  Speaker 3: the Supreme Court as really going too far in taking
• 17:52
  Speaker 3: away Congress's power to help protect minority voters, as was
• 17:57
  Speaker 3: the promise of the Fourteenth and fifteenth Amendments.
• 18:00
  Speaker 1: If that happens, would there be ways to challenge maps.
• 18:04
  Speaker 1: If you can't do it for partisan reasons, then you
• 18:06
  Speaker 1: can't do it for racial reasons. Are there other reasons?
• 18:10
  Speaker 3: Well, there will still be the one person in one
• 18:12
  Speaker 3: vote requirement, which means you have to draw districts with
• 18:15
  Speaker 3: roughly equal population. But even with that requirement that imposed
• 18:19
  Speaker 3: a very little constraint on the ability to draw lines
• 18:23
  Speaker 3: for the party in power to do what it wants.
• 18:26
  Speaker 3: Racial gerrymandering cases would be much less likely to be
• 18:28
  Speaker 3: successful as well, because there'd be no need to comply
• 18:33
  Speaker 3: with the Voting Rights Act, which is where this whole
• 18:35
  Speaker 3: line of cases comes from in the first place. So
• 18:38
  Speaker 3: it would be a less Congress acts or unless the
• 18:41
  Speaker 3: Constitution is amended or Congress passes new legislation, it would
• 18:45
  Speaker 3: really be turning the clock back to the mid nineteen
• 18:49
  Speaker 3: sixties in terms of representation, and that I think is
• 18:52
  Speaker 3: very dangerous for a multicultural democracy that we have today.
• 18:56
  Speaker 1: Well, the Louisiana case certainly seems like the case to
• 19:00
  Speaker 1: watch next term. It's great to have you on the
• 19:02
  Speaker 1: show again, Rick. That's Professor Rick Hassen of UCLA Law School.
• 19:06
  Speaker 1: And that's it for this edition of The Bloomberg Law Show.
• 19:09
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• 19:11
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• 19:16
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• 19:21
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• 19:24
  Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
• 19:28
  Speaker 1: and you're listening to Bloomberg