Court Reinstates Controversial Texas Voting Districts (Audio)

will be used for the elections. The High Court issued a similar order in a separate case over Texas state legislative districts. The court didn't provide any explanation, but the order is nonetheless alarm some voting rights advocates, underscoring the power of the Supreme courts conservative majority as we head toward next year's mid term elections. With us to talk about all this is Richard Berfalt. He's a professor at Columbia Law School, and Nate personally, who teaches at Stanford

Law School. Both are election law experts and regular guests here on Bloomberg Law. Um, Nate, this is really complicated litigation. It's been up and down the court system. UM, let's just try to start simply if we could with the the issue with the congressional districts, can you tell me what it was that the lower court found that was

wrong with the way those districts were put together. So in both of these cases, the question is whether the state has either used race successively in the drawing of these lines or diluted the votes of African Americans and Latinos, either intentionally or in effect with Section two of the

Voting Rights Act. And so here in the congressional districts, which have by implication, these districts and every election that has been run under them since two thousands have been unconstitutional because race was you know, that they were dilutive or intentionally discriminatory in the way that they constructed several of these districts. And so the district court three judge

court wanted them to be redrawn. That's been stayed, and as you said, it's we don't know whether than they'd have have a chance to redraw them before the two thousand and eighteen elections. Rich tell us what the various arguments the state made to the Supreme Court. Well, the most recent thing that the state was able to argue

with the unsuccessfully in the lower Court. Excuse me, was that, um whatever, that these districts had been through the litigation nell several times, that the most recent round because they were adopted the most recent round reflected a certain interim plans that were adopted by a court, and the legislature essentially adopted the court's interim plans, So that would have purged the taint that may have been put in from

the earlier plans which were found to be discriminatory. In addition, I think the the state argues to the Supreme Court that frankly they should be given time to uh. Any interim remedies should be blocked UH, and that the that the common plans should continue to be used pending a full of discussion by the court. And what's the counter to that argument by the state. So, if indeed these disputed districts are basically just the same districts that UH court had ordered as as an interim remedy a few

years ago, how could they not be acceptable now? Well, this is a familiar argument and one that's actually playing out with the Texas motor ide law as well. UH, Because there was an intim sort of plan that the court had accepted and then Nevertheless, they later found that it was unconstitutional. And with these interim emergency remedies, the argument is, well, uh, this is just what the court

adopts to have something in place for an election. Uh. It is not saying that it's definitely legal or constitutional that requires full litigation. But you you know the thing about elections is you've got to have districts in place in order to know who can run from where. And so these were sort of emergency procedures to put in place, but they hadn't sort of fully aired all the constitutional questions.

So rich the courts brief Tuesday order just just let us know who is on which side of letting this go forward. Do we have any reason to know how the court desired or why they desired the way they did? Well, the courts career said nothing. It just literally a stay. Uh. And the justices who would have denied this day just said they would have denied to stay. So there's no substantive opinion either for the majority or for I'll call them a descent although it's not technically a descent um.

So we don't really know what the reasoning is. Um. If we don't know whether I mean, there's There's really two big possibilities. One is that they disagree with the lower courts reading of the evidence of the on on the facts of intentional or official discrimination or the discriminatory impact. That's a little hard because they court really has not

had much time to assess the evidence. Uh. The other possibility is that it reflects the philosophy that's the jet that uh, they would rather have the existing plans remain in place, uh, pending full review. That because the Court has traditionally allowed districting to be a matter haven up by legislatures. Rather than having the lower court begin a redistricting process, they would want to whole continue to use the currently in valid maps, keep them in place while

the appeals process works its way through. Nate, let me ask you the same question, to what extent can we take this five to four vote as a reflection that the of what the Supreme Court thinks about the merits of the lower court ruling, Well, it means that five of them at least are somewhat unsure as to whether it should be codified immediately. I mean, that's that's all we can sort of say. But I agree with Richard's

basic thing. But let's just abstract it out for a second, which is that this these cases dealing with race and redistricting are extremely naughty. In fact intensive We've had cases of the Supreme Court and last few years from Alabama, North Carolina, and Virginia, all raising very similar issues to what we see here. Um. And what what what you see is that the jurisdictions field, they're put in a box where they have to use race in order to

comply with the Voting Rights Act. But if they use race too much, then it's going to violate the Constitution. And in the background of all of this is the part of an interest that are are the part of an interest that are at stake because um, most of these districts and these dilution claims are happening in the context of partisan gerrymanders. We're talking about the Supreme Court action this week reinstating to Republican drawing congressional districts that

had been ordered redrawn by a lower court. Our guests are Nate Personally of Stanford Law School, in Richard Brafault of Columbia Law School, rich When this when this order came out from the Supreme Court, are these orders two

of them in two separate cases. Um. I sensed a lot of uh worrying on the left about the implications of this, and it sort of went along the lines of if you thought we had Anthony Kennedy, who's kind of the swing vote on the court and these issues, if you thought we thought we had him on voting rights issues, UM, this is evidence that we're mistaken. Do you think that concern is warranted in light of what the court did this week? Well, that's hard to answer.

These are stays of a lower court decisions. It's not happy news. I mean short, he did go along with the stays, but I think the rulings on stays like this or just not quite enough, uh to hang your hat on or to be to be fully depressed. On the other hand, it is more negative than a positive sign that it's the sign of anything. Nate, I want to go back forward to UH for a moment to what the state was arguing that. You know, it was such a short time for them to go redraw the maps.

You've drawn legislative maps and been involved in that. Would it have been too difficult for them to redraw these maps before the midterm elections? Know they can draw them right now. It would take really a day to do it. I mean the actual process of drawing it to remedy these constitutional problems, because it's not the whole plan, it's just a few districts. And then frankly, there have always already been proposed remedial maps. It would just be up

to the court to decide on them. Right now. I mean, what's happened, and this is what always happens to rediscing litigation, is that the state is trying to just have more and more process so it gets closer and closer to the two thousand eighteen elections, so that then it will be impossible to redraw the maps. And so the consequence of this is that the primaries I believe are for the Congress Congression elections in Texas are March two, eighteen.

If the Supreme Court order is full hearing on this UH, they will probably consider whether to grant hearing UH in November or how to resolve the case, and then UH a decision is likely to come after those primary elections, and so then it may very well be too late. I mean, you could redraw the elections and rerun primary actions. That's happened before, but more likely they'll let them go

into place for yet one more election. Rich. One of the arguments the voting rights side made in this case was this lower court order is not a final one. It's not a final judgment until they order a new new map. Uh. In light of that argument, is it's surprising to you that the Supreme Court chose to jump in now as opposed to waiting again, It's it's hard

to say. I mean the court there is a feeling, as Nate indicates, by jumping in now, they've effectively barred any remedy off if if the Court will conclude that these plans were either run, consumual and violent of voting right sec, they've effectively barred any remedy for another couple of years. So you do wonder what ex On the one hand, there was the argument for not for allowing a full review before forcing a repidy. But you do wonder whether to what extent the Court may have at

least tendatively preach to the ultimate decision. And Nate, as far as the question of whether this is a bad sign for voting discrimination cases in the future, do you see it, Do you see it as a bad sign or any sign? Well, I think sort of the area of race and redistricting right now is sort of characterized by chaos, which is that the rules are in flux and jurisdictions don't have clear direction and they're afraid they're

going to get sued. No matter what. I think, it is possible that the Court here, by just preserving the status quo, is saying, look, we want to uh deal with the array of cases that are coming before us. Most significant one is the Wisconsin partisan jurymandering case that

they're gonna hear this year. UH. And if they have a kind of pro voting rights opinion there, that will throw not only this case but all cases dealing with partisanship and redistricting the race into flux, and so that then the courts maybe redrawing a lot of planned rich

One issue that is lurking is in various cases. I'm actually not sure if it's in this one, but the the the notion of putting Texas back under a preclearance regime where they would have to get approval from the federal government, either the Justice Department or a court UH to change their voting rules. Um, what's the status of that effort and does does what happened this week have any effect on it. Well, it certainly does, so as

you as you, as your question indicates. As we all know, there was a time when Texas with subject to preclearancidus to say, any changes in its voting practices or procedures, including its mass, would require Justice Department approval before they could take effect. The Supreme Court decision in Shelby County eliminated that requirement. But there is a provision of the

Voting Right sex hasn't been used that much. It has been used sometimes, and not a lot, called the so called bail in provision, that says that a court could decide that if a jurisdiction commits serious and repeated Voting Rights Act violations, the court would create a preclearance requirement for future legal changes in that jurisdiction or some were all potentially a voting right voting a change in that

jurisdiction going forward. Texas has now had to at least two different sets of litigations where there has been, these involving the redistricting maps and also another one involving their voter I D Law, in which courts have found intentional discrimination. So rich, I'm afraid we're gonna have to We're gonna have to leave it there. I want to thank Richard Brafault and Nate personally for talking to us about the Supreme Courts action this week on voting districts in Texas