Voting Curbs Show Supreme Court's Influence

Crow style voter suppression to this state. And you suggest that we're trying to suppress the vote, you're, in essence between the lines calling us racist, and that will not stand. Republicans can thank the Supreme Court for its Shelby County decision that created a glide path for many of the election changes they're pushing through this year. Joining me as elections law expert Rick Hassan, a professor at the University of California Irvine School of Law, there is a cascade

of voting changes in republic Can controlled states. Which states bill stands out as the most restrictive and why I think it's a moving target. We're still waiting to see what legislation is going to pass in Texas and Texas had some pretty worrisome provisions that came out of the bill on the Senate side, somewhat different provisions on the House side, And we'll see what emerges before the end

of the session. But you saw in Florida, in Georgia, in Arizona, in each of these states laws that make it somewhat harder for people to register and to vote. In addition, and what I think is probably more concerning than even things like saying you can't give voters water while they're waiting in line to vote, our provisions that might allow partisans to manipulate how the votes are actually

going to be counted. So in Georgia, the secretary of State, who you may remember, Brad Raefinsburger, stood up to Trump and would not find or manufacture additional votes to try to flip the outcome to the secretary of state position has been taken out of a role on the state election board to be replaced by someone who's going to

be appointed by the legislature. And this body now has the power to take over up to four county election boards at a time, and so it could be that we'll see the state election board looking to take over Democratic counties and mess with how the election is being conducted in those counties. So this is kind of a new problem that we haven't seen before, not just about making it harder to vote, but potentially subverting the outcome of the election itself. Could these build backfire and restrict

Republican voters as well? Oh, I think there's no doubt that this is a real danger. And in fact, in Florida, which has very successfully used mail and balloting for many years, some Republican legislators are worried that's going to make it harder for reliable Republican voters to cast a ballot, even to the point where they were thinking of exempting the rules for military and elderly voters who are more likely

to vote for Republicans. That didn't end up going that route, but it does show that there is concern about back fire. And so one is that it's going to make it harder for reliable Republicans to turn out to vote. And we saw the turnout was way up, for example, in Texas, and that helped Republicans, So higher turnout doesn't necessarily help Democrats.

But the other thing that these laws do is that they energize the Democratic base and the Democratic Party seeing this as an effort at suppressing the vote, and that can actually spur a backlash which can actually increase turnout. So it's not clear what the actual effect is going to be on election results, but I think that shouldn't be where the main focus is. The main focus should be why does the state get to make it harder for people to register or to vote without having a

good reason to do so. And the reason here seems to be simply to try to give one party partisan advantage. As far as the parts of these bills that go further than talking about how a person votes in that state, will those survive court challenges? So how things are going to go into court is uncertain. There are really three

main lines of attack. One is an attack under Section two of the Voting Rights Act, the second is an attack under various constitutional provisions, including the Fourteen Amendments Equal Protection Clause, and the third are attacks under state constitutions. So let me talk about each of those separately. How much does Section two of the Voting Rights Act protect the laws that make it harder for fuel to register

and vote? That is an open question that is before the United States Supreme Court right now in a case called Bernovich. This is a case coming out of Arizona where the Democratic Party challenged some rules that they said made it harder for voters to be able to cast their ballots, and the Supreme Court is going to for the first time wigh in on how section to the Voting Rights Act, which provides that minority voters should have the same opportunity as others to participate the political process

and to let representatives of their choice. How Section two is going to apply in this context. We know how it applies in the contracts of redistricting. The courts decided lots of cases of that question. But the major issue in the Burnerage case that should be decided by the end of June, and that will tell us how well these new challenges will go under Section two. Terms of constitutional challenges under the Protection Clause and other provisions of

the U. S Constitution. I think plaintiffs face an uphill battle because over the years the Supreme Court and lower courts have not been as accepting of these kinds of claims of constitutional violations. I think the really egregious laws could fall under US constitutional challenges, but it's going to be a tough road to challenge laws there, and it really shows you what's the loss of Section five of the Voting Rights Act, which the Supreme Court eviscerated in

the two thousand thirteen Shelby County Versus. Holder case really did. And then finally, challenges in state courts raising state constitutional claims. These could potentially be successful, especially in states like Pennsylvania and North Carolina, which have Democratic majority state Supreme courts which have been shown to be skeptical of some efforts

to manipulate election results through restrictive voting laws. But there's a pen question about whether or not state courts have the power to reign in state legislatures when it comes to the rules for federal elections. That's an issue the Supreme Court duct in the election season, but will probably end up back at the Court. So, Texas and Georgia were states that were subject to the Voting Rights Acts requirement that jurisdictions get pre clearance from the Justice Department

or a federal court before changing their voting rules. You reference the Supreme Court's decision in the Shelby County case. Just tell us briefly what that case did so. As you mentioned, there were a number of states that had a history of racial discrimination and voting that had to get federal approval before making changes to their voting rules, and they had to demonstrate that the changes would not

make protected binary voters worse off. In nineteen sixty six, the Supreme Court upheld this preclearance provision as what the court called the strong medicine. It's tough to tell a state that they've got to get federal approval before they could put their laws in place, but the said it

was justified by this long history of discrimination. By two thousand thirteen, however, the Supreme Court said that the law was no longer justified because it was based upon data about disparities in turnout and voting from the nineteen sixties and from nine seventy and so the Court didn't strike down the preclearance provision itself, but instead struck down the coverage formula of the formula that dictated which states were

going to be subjects to these rules. And what's happened since then is that Congress has been considering different coverage formulas, and right now there's a bill pending in the House. It's called Hr. Four. It's the John Lewis Voting Rights Act, and it would impose a new requirement of preclearance under a new formula, with the hope that this would pass

constitutional muster if it were put in place. And Joe Mansion, who is a centator from West Virginia, is the Democrat who is very important because he's kind of a fiftieth vote to try to get a voting bill through the Senate, and he has said that he would favor moving preclearance to a nationwide standard. That is, rather than single out particular state, you would have every state be subject to

these kinds of rules. I think that would solve one of the issues raised in Shelby County, which is treating some states differently than others. But it does still raise the question of whether or not Congress would have the power to make states go through this kind of process. So a lot up in the air. It's not clear if legislation will pass that would try to reverse Shelby County, and it's not clear that if that legislation passed that

the Supreme Court would be willing to uphold it. How does the fact that the Court is more conservative now six conservative members and In fact, Chief Justice John Roberts wrote the majority opinion in Shelby County. How does that play in? We do know that this court is full of conservative justices who are skeptical of race based solutions generally, so it's not clear if a renewed Section five of the Voting Rights Act would pass constitutional muster for this

conservative court. But listening to the oral arguments the Bernovich case, that Section two case, it did sound like a number of the conservative justices were willing to read the Voting Rights Act as providing some protection for minority voters. There wasn't really any suggestion that this was somehow unconstitutional or

needed to be reined in. So we'll see That opinion won't be out for probably another month and a half, but it's probably the most important voting rights decision that we're going to get in a number of years, and it is going to be a major indication of how conservative this court is and whether the six conservative justices on the Court really Martian lockstep or whether there is

some daylight between them on questions and voting rights. Chief Justice John Roberts also, i believe, wrote the majority opinion in the Supreme Court decision that judges can't toss voting maps for being two partisan. How important was that decision? So this is the Routo decision, and that's a very important decision as we're entering into the new period of redistricting. So registering happens every ten years after the census for the only twenty two elections, we will have new lines

being drawn. We just had a new apportionment where I live in California, we just lost one seat. Some other states have gained a seed or two. And after the lines are drawn, they're often challenges that the lines are unconstitutional as they violate various provisions of state law or violate the Voting Rights Act. One argument that had been floating out there for some time is that when you draw these district lines, you do so to favor one party and hurt the other party, so called partisan jerry

managering that this violates the Constitution. And the issue had been uncertain for many years because Justice Kennedy, who was the key swing vote on this question, kept it open and still wanted to hear different kinds of challenges to figure out, you know, when registering goes too far as to violate the Constitution However, it's an afterco just Okay left the court. The Supreme Court in the rut O case said that federal courts are not open to hearing

claims of partisan jerry mandering. To be going into the new round of registering with two major legal changes since the last round. Number one is no partisan gerry mandering claims will be viable, So that's not something that those who want to engage in parisngerymannjuring me to worry about. And number two will be the first redistricing round since the nineteen seventies in which the Justice Department will not be preclearing maps that were drawn in those jurisdictions that

had a history of racial discrimination of voting. So going to be a lot of political battles. Not clear how much the courts are going to get involved. Maybe state courts will get involved more. But it's a very different atmosphere than it was in the last decade when these cases emerged after the last round of prediscing. Has there been a time in our history since the Jim Crow era where so many states were moving to restrict voting rights. Well, I think that as soon as the Supreme Court decided

the Shelby County case. You saw immediate action by North Carolina and Texas to try to impose or apply strict voting rules. Uh, it's really accelerated now following the election after Donald Trum repeated false claims at the election was stolen in part as a reaction to that. A number of states have passed restrict of voting rules. They're doing so in an atmosphere where the courts are less protective of voting rights, and so I do think that voting rights are under assault now in a way that they

haven't been in a number of decades. Thanks Rick. That's Rick Hassant of the University of California, Irvine School of Law. It didn't take long for the jury and the trial of former Minneapolis police officer Derek Chauvin to reach a verdict. According to juror Brandon Mitchell, we probably deliberated for four hours, and of that four hours it was it was I guess we were going over more sol the terminology, oh, that was being used to make sure that we understood

exactly what was being asked. And now another jury, a federal jury, will be asked to decide what happened that day in May when Chauvin pinned George Floyd down to the ground with a knee on his neck. The Justice Department has indicted Chauvin and the three other former officers on federal civil rights charges were wilfully violating Floyd's constitutional rights. Joining me as Jonathan Smith, executive director of the Washington Lawyers Committee for Civil Rights and Urban Affairs. Derek Chauvin

was convicted of murder. The three other former officers haven't even been tried yet. Aren't Federal charges usually brought after state charges fail, like in the Rodney King case, so it is unusual for the federal government to bring civil rights violations charges while the state cases still pending. The federal charge is a much broader criminal statute that addresses when someone who's acting on color state law a state

official willfully violates someone civil rights. It dates back to the Civil War, literally the Reconstruction era, and it's the only sadget that the United States can use to charge

in these cases. Typically, the United States will come in and bring those charges only under the circumstances in which there has been some decision by the United States that the state criminal proceeding was inadequate to serve justice, and that's in the United States Attorney's Manual, which is the directions to the United's attorney from the Attorney General about

when they should charge. And so the fact that they brought charges here before the state proceedings had concluded is unusual and does reflect the seriousness which the United States is taking this particular the case. What does the prosecution have to prove here? Is it a high burden. So the federal crime to which these officers have been charged requires of the United States show that these officers willfully violated George Floyd's civil rights. And the willfulness standard is

the highest standard in our criminal law. It's the same standard as you would apply for intentional murder or another

intent crime. It doesn't mean that they still have to show that they intended to kill George Floyd, but they do have to show that they intended to commit the acts that they knew to be in violation of his civil rights, that they intended to restrain him illegally, that they intended to restrain him in violation of Fourth Amendment to the United Constitution and the rules around use of force.

And that is a very difficult standard to make. It's much different than the kinds of crimes that were charged in the state case. I mean, the state did charge a crime which required the show even attempt, but it also charged the crime with a much lower intense standard of recklessness or negligence. And there is no crime available under the United States Code that is at a recklessness or a negligence standard. The only crime that's availably United States Code is to show this intent to commit a

civil rights violation. And so it's a very difficult case to prove. The United States must feel very confident it could prove the case because they charged so rarely and only under circumstances where the evidence is extremely clear. You know, clearly the United States had begun its investigation well before the trial of Dark Children. The grand jury had been sitting for some time, the FBI had been engaged in

its investigation. You know, will certainly wait and see whether there was any new evidence developed by the United States that and presented by the State. Well, let me ask your opinion. Do you think that it's fair to try a person for the same crime in two different jurisdictions just to pile on years to the prison term. I mean, is it fair our Constitution says that you cannot be exposed to double jeopardy, and that really means that you can't be charged and tried for the same conduct twice

that the state gets one shot at you. Distreme Court has said that the United States and the State are different sovereigns and that the double jeopardy provision only applies to each of the sovereigns independently and has permitted the United States to bring charges for course of conduct that may have been resolved in the state court proceeding that can create an injustice, that can create an injustice by you know, punishing somebody twice and severely for the same conduct.

And so in order to address that, that is why typically the United States, before will bring charges, will take into account the question of whether the state proceeding provided

adequate justice for the conduct. And that is why the United States having charged before ther Choven has even been sentenced and the other officers have ever been tried, is so unusual because the United States will typically allow the state to go forward with its case first and then evaluate whether the state court proceding provided adequate justice before it will bring those charges. And so this is unusual. The United States who have moved in before it can

even answer that question. Really is sending a signal that the United States is going to be more engaged around these cases and that it's going to use those statutes in a more robust way. And prior administrations may have What can the officers argue in their defense? So there are three elements to the statute that the United States has to prove. The first is that the officers erecting in their color of law, which means they're acting in

an official capacity with the authority of the state. UM, it's gonna be a very little contest that they were acting as police officers at the time. UM, They'll uh the United States just to prove that it was a violation of UM. Mr Floyd's civil rights. And I think that restraining somebody to the point in which they died is going to be very difficult for the officers to argue that, UM, Mr john civil rights, we're not. Mr floyd civil rights are not violated and UM. But the

third element is the one of intent. Did they set out to commit an act knowing that it was a violation of George floyd civil rights? That's where I think that if there's a trial in this case. That's where I think the trial was going to focus. What was in the minds of the officers at the time that they committed these act? Did they intend to commit an act that they knew to be in violation of the United States Constitute? So how will prosecutors prove intent if

the officers don't take the stand. Well, you saw a lot of that evidence come out in the trial. Um, you can show intent through all kinds of circumstantial evidence. What what was the officers training, What did they know about the policy? What was their prior behavior and conduct that would indicate that they knew that their conduct was violating the civil rights? You know, was there use of force proportionate to the crime or the resistance that they

were receiving from Mr Floyd at the time. There's a lot you can bring in that allow you to understand what the officers, you know, we're thinking at the time you saw this, you know, looking at the incident, you know, the severity of the crimes for which Mr. Floyd was suspected of having committed, the nature of the use of force, the persistence of the use of force in the face of what was being said to them by people in the crowd of you know, his physical condition as it deteriorated.

All of that can be brought in to show that the officers knew that what they were doing UM may well have been a b relation of his right under the Constitution. You know, police officers are trained to know, are supposed to be trained in what the law is around when they can and can't use force, and they're supposed to be trained to know that that force has to be reasonable and that it can't be used in

the kind of excessive, dangerous ways. And bringing in some of the same evidence that the state brought in UM will be very important to proving their intent. The Justice Department is also starting again with pattern and practice investigations, announcing civil investigations into the Minneapolis and Louisville police departments. Are they necessary? I think they're necessary and their important.

When I was at the Department of Justice, I led the section that did the pattern and practice investigations for the Civil Rights Division of Law Enforcement during the Obama administration.

The statute that they're enforcing, which allows the Attorney General proddress patterns and practices of the violation of the Constitution Federal law by law enforcement was enacted in the wake of the rebellions in Los Angeles after the beating of Rodney King as a way to give the federal government some ability to influence and to address unconstitutional practices by local law enforcement agencies. That statute has been enforced about seventy five times since was enacted. About twenty five of

those cases were brought during the Obama administration. There was only one such investigation in case that was brought during the Trump administration. What we're seeing with the announcements in Louisville and in Minneapolis is that the Department Justice is going to be bringing more of those cases. I think that is a bell weather from an indicator that United State is going to be back pursuing these cases of regarding patterns of violations constitutions by law enforcement across the nation.

One thing about those cases that is really very different than the criminal cases is they're not about trying to hold people accountable. That's not the goal. The criminal statute is designed if somebody engaged to misconduct of honey, then

hold them accountable from this conduct. The pattern of practice investigations are designed to try to identify whether or not there is a course of conduct by that law enforcement agency that is routinely depriving people of their civil rights, and then to come up with a forward looking remedy.

How can you fix that problem through policy, training, supervision, accountability, changes in practices that may limit the circumstances which forces used, or encounters between police and persons with nellowness, or traffic stops that are racily motivated, or whatever it might be. So it's really a very forward looking exercise. It's not to punish the city or the police department. It's not to find fault. It's really to say, if there's a

problem here, how do we fix it? What can we do going forward that would be different, that will provide communities with police departments that deliver police services in a constitutional way. And has it worked in the past. There's been a tremendous success with the VATA and past practice investigations. Now important to note that the jurisdiction of the Attorney General of the Civil Rights Division is actually quite limited in this area. It is to make police departments constitutional.

That is a really, really, really important thing, but it is not everything that communities want. You can have a constitutional police department that doesn't reflect or meet the values of a community, and doesn't deliver police services in the way that the community desires and wishes or even deserves. But it is really important if you look around the country at where these investigations have led to consent decrees and those consent decrees have been implemented, you've seen very

significant transformation and change. Thanks Jonathan. That's Jonathan Smith of the Washington Lawyers Committee for Civil Rights and Urban Affairs. I'm June Grasso, and you're listening to Bloomberg