Supreme Court May Weaken Voting Rights Act

apply to future lawsuits. Justice Samuel Alito was one of those expressing concern that any voting law could be vulnerable to attack under Section two of the Act, people who are poor and less well educated, on balance, probably will find it more difficult to comply with just about every voting rule than do people who are more affluent and

have had the benefit of more education. There was a surprisingly candid answer from the lawyer for Arizona's Republican Party to a question by Justice Amy Coney, are it what's the interest of the Arizona RNC here in keeping say the out of uh precinct um voters disqualification rules on the books because it puts us at a competitive disadvantage

relative to Democrats. Politics is a zero sum game. Joining me is elections law expert Richard Brofald, Professor, Columbia Law School, rich tell us the significance of the Voting Rights Act symbolically and legally so the Voting Rights Act initially dates back to the nine and it was a landmark effort on the part of the federal government to really, finally, under a hundred years of serious voting discrimination, effectively kept

huge fractions of the black population and other minorities from voting. There was a major step forward and actually making the right to vote available to everybody. It was a very

significant amendment. Addituate in two, and that's really what the argument dealt with, known as Section two, which basically said that certain kinds of voting rules that have the effect of discriminating against minorities, even if they're not inclearly intended to do so, can also be challenged and struck down where they have the aspect of denying minorities equal opportunities participate in the political process. What's going on now and really for the last ten years or more is kind

of the return of what people call vote denial. The efforts to adopt laws which, although neutral on their face, actually make it harder for people to vote, and in particular make it harder for minorities to vote. Things like voter or I D as one example of this maybe what that's gotten the most attention, but there are other mechanisms. And the big question the same court has not addressed

until now is what's the standard of proof? What needs to be shown in order for plaintiffs who are challenging one of these rules to say that this kind of vote denial mechanism which will fare in its face or neutraliance face it triggers a violation of Section two. What

did you hear from the justices? There's a lot of concern that the standard adopted by the ninth sirt it simptis, made it too easy for pointiffs to bring cases or more of the point, made it too easy to challenge pretty standard or widespread voting rules and kind of made it too easy for minority pointiffs tojo win. I should say that in this case was actually not brought by

minority group, who was brought by the Democratic Party. The Justices pushed Arizona's lawyer about the dividing line between restrictions that would be lawful and those that wouldn't be, and so he said it was lawful to block voting on Sundays, but not to force people to travel to country clubs

to vote. What did you glean from his responses? I think that some of the argument of the challengers, they were going pretty far to make the argument that spatially neutral laws that basically that the procedures for voting simply could not be challenged under Section two. And I think these examples were designed to sort of push them to say,

do you really mean that? Aren't there some situations where, given what the a G. Of Arizona acknowledge was that ground demographic considerations that given those, isn't it the case at least sometimes a law which appears to be neutral on at spaces And I one of the examples that Justice can raised a couple of times with extremely short voting hours so that people who work basically couldn't get to vote, or again the locations of polling places which were going to be very very far from any man

already neighborhoods that a blanket exclusion of the so called time, place and manner rules for voting just would not survive. That that just needs to be untenable. And the question that you've heard several of the justices, really both conservative and liberal justices raising, was how do you distinguish between rules that simply, quote unquote make it inconvenient to vote and rules that effectively that seriously burdened the right to vote. And that I think was kind of one of the

questions that was underlying a lot of this. Had you come up with a standard that allows the states to adopt some rules, because almost any rule is going to make it hard for somebody to vote. The voting hours are from six am to nine pm. It's gonna be hard from people who want PM. How do you distinguish that from rules that operate with the effect though it maybe even the intent of making it very hard to

particular groups of people, then Ay voters to vote. Rich A lot of people were watching the Chief Justice during these oral arguments, in part because he wrote the majority opinion in Shelby County versus Holder, which significantly cut back Voting Rights Act in Did you hear anything from him that struck you? I think what we heard from him, and this maybe where the court winds up going is he was unwilling to do us completely rule out Learning

Rights Act coverage. As the lawyer's Republican party one, that position was pretty much the courts getting to hear these cases, he seemed unsympathetic to that. On the other hand, he also seemed unsympathetic to the rulings of the courts below on the two particular issues being challenged, and maybe therefore coming up with a standard in which the point is have to prove a lot more than just disparate impact.

And he basically, you know, was asking one of the laws that have been challenged was one that prohibited you know, third parties from collecting and returning absentee ballots third paras other than family members, in other words, like community groups, voting rights groups, the political party. This is known pejoratively as ballot harvesting. And he basically pointed out that, you know, teen years ago of Bipartisan Commission had said that, you know,

this raised possibilities of fraud and coercion. And he basically said, you know that isn't this kind of rule, the kind of rule which is not inherently discriminatory but in fact has a good justification for it. So I think he was looking for ways and justice Kavanaugh asked similar questions things which have legitimate justifications or things that are in widespread use, and he stays, have rules like this shouldn't we take that into account in judging whether or not

a particular rule violates the voting rights? At most observers seem to think there is enough support from the Conservatives for these voting restrictions. Do you agree with that? And what about the standard that the court uses? The serving vote is always very hard to predict. I think you're going to see some kind of intermediate standard, but one

in which the point is, in this case lose. In other words, they're not going to go as far the most extreme positions of either the Republican Party lawyer or what had been the position of the Trump administration, which is to say that basically you can't use Section two of the voting right back to challenge these basic rules

that govern the voting process. I don't think they're going to go that far, But I do think they're going to use a standard which requires the plaintiffs to prove more not just that there is a racial disproportion and how that certain rules affect minority voters more than non minority voters, but that the impact has to be substantial and may be part of a broader effort to make

it harder priority voters to vote. So you know, I think a number of justices we're looking for what they might consider to be a middle ground of saying, yes, suits like this to go forward, but maybe with a higher standard proof or plaintiffs. And the question is how high is that standard going to be and what will that result in? What kinds of voting restrictions will be protected from challenge, which is important at a time where it seems like a lot of states are moving to

adopt more restrictive rules on voting. The Brennan Center says that legislators introduced more than a hundred and sixty five bills this year to restrict voting access. That's more than four times the number from a year ago. So if those are challenged, or when those are challenged, the rules that the Supreme Court sets that in this case will

be determinative. Well, send me be very significant. Sentently, what the Surreme Court does in this case will be extremely important for anybody bringing a challenge based on a racially discriminatory impact. There might be other arguments, some of these rules could be challenged on on more pure right to vote ounds or other considerations. Well, this case, well, I think set the standards for challenging newly restrictive voting rules

on grounds of racial discrimination. You know, this is really the Supreme Court's first time looking at how to apply the Statute to these kinds of lawsuits since the new wave of restricting voting or tightening up on voting rules began about a dozen years ago. Thanks for being on the show, rich that's Professor Richard Brofald of Columbia Law School coming up next on the Bloomberg Law Show. Kind of high school disciplined cheerleader for a profane snapchat. I'm

June Grosso and you're listening to Bloomberg. About forty judges have announced they'll take senior status or retire since the election, adding to about fifty federal judicial vacancies that existed before the election. With a narrow Democratic majority in the Senate and no sixty vote threshold for judicial dominees, Biden has an opportunity to make an impact on the courts, starting with the Second Circuit, which it now appears he can

flip back to a Democratic appointed majority. Joining me is Professor Carl to Bias of the University of Richmond Law School. Carl tell us what senior status means for judges and who's taking it well. Senior status is a form of semi retirement. When judges satisfy the rule of eight when they're sixty five and have fifteen years of experience, they can take that status. They usually have a half case load UM and they continue to receive the kolas that

all federal judges have. And so it's a great opportunity for the judges because you retain your experience. But the court then gets another active judge and so that's extremely valuable UM and brings new people into the system and gives the courts more resource is which many of them needs.

The most recent one is Judge Peter Hall on the Second Circuit, who last Thirsty as soon senior status and so that's important because he's the third judge on that court who assumed senior status and means that there will be more people on the court appointed by democratic presidents than Republican presidents. One Judge Hall is replaced by a Biden appointee, so Biden has an opportunity to flip the court back to a democratically appointed majority, which Trump was

able to flip during his time. It's playing the importance of the Second Circuit, which is based in Manhattan. Well, it's the business center of certainly the United States and probably the world. There's all Street and there's so much commercial and industry in business yet is transacted there. And it gets many other very important cases. I mean, think about some of those involving President Trump and al Chopo

and all kinds of international and nationally important cases. And so it's a story court that has a long tradition. Remember sort of good Marshal served on that court, learned hand served on that court. Henry Friendly, many great judges in the pantheon of federal judges. It's a story court and people know that. Tell us how many circuit courts Trump flipped three, the third which includes Delaware, New Jersey in Pennsylvania, and the eleven, which is Alabama, Georgia in Florida.

So when the circuits flipped, have we seen a difference in the app Indians that are coming out of those circuits? Yes, to some extent, and a number of public interest groups

and others are tracking those. Probably most striking is in the eleven because I believe there's six judges which is a majority on that court appointed by President Trump, and that made a big difference on the fell in franchisement issue that came from Florida, and all the Trump appointees as well as the Chief Judge voted in a way that was advantageous to Trump and probably meant a difference in his ability to capture Florida in the presidential election.

And so that's one of the most important examples. But there are a number of others. Of course, at the Supreme Court will see too that the Court is issuing more conservative rulings in certain areas. You only need a majority vote to get an appellate Court judge. Does this mean that by can put anyone he wants on these courts? No, I don't think so. And you do have a split and there are a number of Senators who are relatively

moderate uh and um. Unless you have all fifty of those uh and the Republicans hold together, then it will be difficult to name people who are outside of the mainstream, as you will. But Biden hasn't said that he intends to nominate people who are outside in the mainstream, but he has said he's looking for diversity in terms of ethnicity, gender and LGBT people, sexual orientation, but also experiential diversity.

Saying there may be too many prosecutors and too many big firm and um other corporate type attorneys on the federal bench. Uh. And so the White House Council sent a letter to Senators about sending forward their recommendations and mentioned all of those facets of diversity, and so I think that will be important. And he also promised to make his first appointment to the Supreme Court of Black woman. The Federalist Society was behind the lists of judges for Trump.

Who is doing that for Biden if anyone well? Also don't forget that Leonard Leo, the executive vice president of the Federalist Society, was Trump's legal advisor through four years at the White House, and he was instrumental as well as Don McGann. The first White House Council in packing the appeals courts was extremely conservative judges fifty four, setting some records in the first and second year. So that's important.

I think in this administration there are other groups like American Constitution Society and Demand Justice and other groups in Washington, UM who have been very important and have sent lists actually to the White House. But I don't think you will see the same kind of influence from them, even though it will be important to the White Husband. I'm sure the White House will consider those lists. But also at the district level, I think we'll see something fairly traditional.

The White House Council asked for three names for each vacancy, and that be done swiftly. Remembering that in the Obama first year selection process moves slowly, the White House is moving as quickly as possible, in saying within forty five days of an opening, the Senators should have three recommendations to the White House, and so I think they will consult both at the appellate and district level, although there may be more White House control over the appellate nominees.

To go back, there are presently five appellate court vacancies and five future vacancies, and on the district level sixty present vacancies in twenty one or so future vacancies, so there's some opportunities there. How do you know about a future vacancy on an appellate court? The judge will announce, will send a letter to the President saying I intend to soon senior status, and then the Administrative of the US Courts will post that and you can see that online.

Um and so that's the way to tell, and they list out they have a listing of future vacancies. What's the possibility that Joe Biden could flip the circuit courts

back that Trump flipped. There's some possibility. It would depend in those two appeals courts, the third and the eleventh that we were talking about, on some more judges assuming senior status for retiring, and that hasn't happened yet and there aren't any present they can seeze on either of those courts, but those are possibilities, um, And there's probably

some other courts. For example, Trump appointed ten people to the ninth circuit Um, which is a large number, but of course there twenty nine active judges on that court. One person has said she would take senior status, but there may be others there because I think if you look at senior eligible people, people who could take senior status, they're a number of judges on that court, principally whom

President Clinton appointed who could soon senior status. But in order to flip a circuit, you'd need a Republican appointed judge to take senior status. Do judges on appellate courts wait until a president of their party is in office. Again, remembering that's a pretty crude measure when you're talking about who appointed the person and someone who served for twenty years. Um. Yeah, but people do use that measure, so yes, but we'll see, Um,

it depends. And sometimes I don't think that's as much of a custom as at the Supreme Court of trying to take senior status or resign in the term of the president of the same party as appointed you. Um. And you you often see that. I mean, for example, Judge Hall was a Republican appointee to the Second Circuit. Uh. And here we are in a democratic administration. What do you consider a conservative judge? Well, that's a good question, and I think the federal society has been vigorously debating

that as recently as according to reports from your reporters. Uh. And I think there are a number of ways of defining that. But I think for me and others, talk about ideological conservatism. Uh. And if you think of the culture war cases, for example, abortion and immigration and voting rights and other issues that are very much hot button issues, I think that's one way to look at it. But what I think this debate in the federal society is about is the notion of originalism and a conservative view

of the constitution. UH. And the strain comes in with as they were debating on Friday, what do you do about the assault insurrection on the Capitol on January six? And think about the Trump appointees who rejected his false allegations of election fraud. And so there's some tension there about you know, having certain political goals. These are visa judiciary, UH and being true to your principles about originalism, if

you will, And that needs to be worked through. And I think the same debate is going on in the Republican Party and so I think that's what you're seeing. And so those tensions can all be resolved, and so we'll see how they all all play out. Besides the second circuit, which other circuits might come up as possibilities for Biden to flip? I think the other two I was talking about. Because he flipped those two, he also reinforced the size of the Republican majorities and a number

of circuits. For example, of fifth, I think he got tad four or five appointments, three in Texas and the eighth and the seventh. Number of those he added to the Republican majorities and significantly, which will make it more difficult. I mean, I think Biden would probably need two terms to change a number of those courts. Here's one more

thing about the district courts. Um, there was a hearing in the House Judiciary Subcommittee about ten days ago on a Judgeship's bill which would embody the Judicial Conference recommendations based on conservative estimates of case and workloads, which calls for sixty five new district judges and five new Ninth Circuit judges. Uh, and almost everybody agreed. It was bipartisan agreement that the courts need the judges to deliver justice. But how what that will look like? We'll see. Um,

I think something might happen. But the problem is, of course the party doesn't have the White House won't agree because they feel like they're giving judges to the opposite party. So how big would that make the Ninth Circuit, Well, it would make it large. It would be thirty three active judge using then of course, twenty years. So Senior Judge. Thanks Carl. That's Professor Carl Tobias at the University of Richmond Law School. And that's it for this edition of

the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast slash Law. I'm June gross O. Thanks so much for listening, and please June into the Bloomberg Law Show every week night at ten pm Eastern, right here on Bloomberg Radio.