This is Bloomberg Law with June Grossel from Bloomberg.
Radio mean eighty five eyes and six nays.
The motion prevails. The Sergeant at Arms and any officers appointed by her are directed to send for all absentees whose attendance is not.
Excused for the purposes of securing and maintaining their attendants under warrant of arrest if necessary.
Arrest warrants, threats of prosecution and removal from office, and possible federal involvement. The 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.
Well, they may have to, but the Democratic lawmakers, like state Representative James tallerco 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. We 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 Hassen, a professor at UCLA Law School. So, Rick, Texas already jerrymandered it's maps in twenty twenty one, 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. What's going to happen and 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 jerrymanagering. 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 twenty nineteen, the Supreme Court decided a case called Rusho versus Common Cause, where the Court said that there are no standards to judge under the Constitution whether partisan jerry managering goes too far.
Several 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 one I'm most familiar with living here in California, the way that registring 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 to measure actually two ballot measures, establishing a non partisan or multi partisan commission and then extending that commission's job to include drawing congressional district To 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 registioning plan and putting it before voters in a special election. If it passes, the new registing plan would be in effect, and then that could be challenged
in court. But I think that again, because partisan jerry managering 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 the voting rights actor, as a racial ferry manager, the district somehow are illegal.
If 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 to 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 discussions 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. I 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 presidents 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, well, 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 jerimander like proudly admitting it, it's because they're trying to deflect the argument, No, you're doing this
on racial grounds. You'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 gerymander in question on the protection close. 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. You're right that Congress could do something. Article won. The Constitution tells states they can set their rules for running congressional elections, but Congress anytime can make new rules or alter those
state rules. And so if Congress wanted to say no mid decade registering or established commissions, or set a standard for when partisan jerry mandarin goes too far, Congress would have the power to do that under this provision of Article one, 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.
You mentioned racial jerry mandering, and the Supreme Court is ordering reargument 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 versus 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 cad 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 two of the Voting Right sect. Well, 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 up a compelling reason to do so, and therefore you were committing a racial gerrymander in violation of the Fourteenth
Amendments 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. It's surely about politics, then it's not a racistarymander. Again, I find this distinct nonsensical when you have so much overlap between race and party in
the 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 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 reargument 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, the August first, after five pm Friday night news dump, where the Court issued this kind of obscure, cryptic order that I read as really asking the question whether Section two of the Voting Rights Sack remains constitutional. And the way this comes into the case is if race did predominate, then the only way you can do that, as in 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 rightsac made me do it. I had to do it to comply with Section two. It wants to hear, maybe it's unconstitutional to apply Section two and make race the predominant factor when you're drawing these district minds. 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. Here we are recording this on the sixtieth 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 twenty thirteen in the Shelby County versus 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 map makers to intentionally create majority Black or majority Hispanic districts.
Well, the most recent piece of evidence we have on what the Court thinks about the Voting Rights sack, 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 right fact requiring the drawing of an additional black majority district, and in this case Alan versus 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 of the Court were Chief Justice Roberts and Justice Cavanaugh, making it a five to four decision, with Justices Gorsich, Barrett, Alito, and Thomas dissent. But Justice Cavanaugh, in the majority, wrote separately to say, I'm intrigued by the argument that maybe Section two 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, and I think now this Louisiana case is that case. 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 NIGHTSAX Section two 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 Lawn Show, I'll continue this conversation with UCLA law professor Rick Hassen. What are the consequences of getting rid of Section two of the Voting Rights Act. I'm June Grosso. When you're listening to Bloomberg, I've been talking to UCLA law professor Rick Hassen about the Supreme Court indicating it will consider outlining the use of race and drawing voting maps. This sets up a blockbuster showdown with imp locations for dozens of congressional districts
with predominantly minority populations. Rick, as you mentioned, in twenty twenty three, 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, well, you know John Roberts likes to move slowly. Let's just take the killing off of Section five of the Voting If Act, which happened in Shelby County. That was the provision that said, the 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
five in two thousand and six. The Supreme Court first took up the issue of overturning Section five in two thousand and nine in a case called Northwest Austin Municipal Utility District Number one versus 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 five. It was not until twenty thirteen, 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 the way 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 unconstitutionalized applied in Louisiana, and then it will take time to figure out, well, what does that mean? How
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, you know, I was telling my editor of the piece that I wrote Slate about this, that you know, the media loves to cover the car crash, the Texas registricting, you know, legislators getting on planes, and you know that's great visuals, great story. But the Supreme Court does slow poisoning, and so it's
very hard to cover. Right. So here's an order that's issued, you know, Friday after five pm 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. And then the 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 two.
So the theory that the concerns could adopt in striking down Section two or in whittling it away is that the equal protection clause the Fourteenth Amendment and the Fifteenth Amendments prohibition on discriminating and voting on the basis of race, require a kind of color blindness that you can't take race into account when you do something like draw political maps. That view of the Constitution is that odds with a view of the Constitution as preventing discrimination against minority voters.
So the whole reason that the reconstruction amendments after the Civil War, the Thirteenth Amendment abolishing slavery, the Fourteenth Amendment including equal protection, the Fifteenth Amendment barring race discrimination, the reason for those amendments was to protect black's former slaves from discrimination. And here the Court, if it adopts a color blind view of the Constitution really be perverting what it is that these amendments were meant to do, which
is to allow for the protection of minority voters. 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 two 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. It would make our legislatures and our Congress much wider.
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 Fourteenth and fifteenth Amendments. The Constitution gives Congress
the power to enforce the Fourteenth and fifteenth Amendments. These powers are given to Congress to protect minority voters, and the Supreme Court is whittling away or killing off the Congress's ability to do this, and I think that it makes the courts hostility to voting rights a direct political issue.
It 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 Fourteenth and fifteenth Amendments.
If that happens, would there be ways to challenge maps. If you can't do it for partisan reasons, then you can't do it for racial reasons. Are there other reasons?
Well, there will still be the one person in one vote requirement, which means you have to draw districts with roughly equal population. But even with that requirement that imposed a 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 a less Congress acts or unless the Constitution is amended or Congress passes new legislation, it would really be turning the clock back to the mid nineteen sixties in terms of representation, and 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 Hassen 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 podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com. Slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg