Voting Rights and Veterans Benefits at High Court

for the next decade. And Justice Katangi Brown Jackson pushed back on the suggestion that redistricting needs to be done in a race neutral way, pointing out that the Framers adopted the post Civil War amendments to the Constitution in a race conscious way. They were, in fact, trying to ensure that people who had been discriminated against the freedmen um in during the reconstructed construction period were actually uh

brought equal to everyone else in the society. Joining me is elections law expert Richard Hassan, a professor at u c l A Law School. So, Rick, Alabama is black, but the Republican legislature drew only one majority black voting district out of seven, and a three judge panel said Alabama was probably violating the Voting Rights Act. So what's the issue here. So the Voting Rights Act requires that

under certain conditions. Basically, when there are large populations of minority voters and white voters, minority voters tend to vote for different candidates, it's possible that the Voting Rights Act requires the drawing of a district to give those minority

voters a chance to get representation. In the Alabama case, a three judge court held that although Alabama had one congressional district where minority voters could elect a candidate of choice, they were entitled to a second one given the size of their population. Where the population was and the continued racially polarized voting in the state of Alabama. The fact that the Supreme Court stepped in and a lot Alabama to keep its map for the primaries, Justice Kagan called

it clear vote delution. Do you see that as the Court tipping its hand here? Well, back when the Court decided to put this ruling on hold, that was a pretty good indication that a majority of the Court's justices thought that Alabama was likely to win. In fact, Chief Justice Roberts, who is not always the most friendly to voting rights plaintiffs, dissented from that order. Back last spring because he said it under existing lot looks like Alabama

should win. So the question really is whether or not the Court is ready to tweak or more radically change understanding of how the Voting Rights Act works if it does so in this case. Depending on how it does so, we could have small implications or very large applications for minority representation in the Congress as well as in state local legislatures. What was the main focus of the oral arguments, Well,

Alabama advanced a number of different arguments. Their most radical argument would essentially rework section to the Voting Rights Act, and there was little appetite on the Court for issuing an opinion that would overturn decades of precedent and have

a whole new approach to the Voting Rights Act. But there was much more interest, at least among some of the conservative justices, especially Justice Alito, in tweaking the existing standards in a way that would make it look like the Court is continuing with its application of existing law, but actually changes the standards enough to make it easier for states to win and harder for minority voters to win.

The real question is whether or not the other justices would be willing to go along with Justice Alito, Justice Jackson seemed to dominate the arguments well. Justice Jackson, even though this was only her second day of oral arguments of the Supreme Court, came out of the box very well prepared and extremely aggressive encountering with Justice Alito was

trying to do so. Justice Dealto was trying to find a way to re interpret the standards that apply to Section two, and Justice Jackson's main point was that Justice the Leader's approach is inconsistent with the text of Section two, it's inconsistent with the precedent that's applied section two, and

there's no constitutional reasons. I thought it was particularly notable that on the constitutional point, Justice Jackson went back to the original understanding of the Reconstruction Amendments, the thirteen sporteen, the fifteen Monuments, which provide the basis for Congress to

act to pass the Voting Rights Accident. I saw that as an appeal to some of the justices who are originalists on the Court care about the original meaning, and what she was trying to argue is that the Voting Rights Act as it's been understood, it's very much in line with what those who passed the Fourteenth Amendment thought could happen, which is that there could be race conscious laws that could be passed to provide protection for members

of our society who faced past discrimination. What about some of the conservatives that might be closer to the middle of the court. Did they propose anything afferent a different solution? Did they seem to agree with Justice Alito or Justice Jackson. So, both Justice Kavanaugh and Justice Barrett mostly asked clarifying questions in order to understand what it was exactly that Alabama was arguing. What was the plaintiffs were contending has to

be done under the existing law. They didn't really tip their hand very much. But I'm reminded of the oral argument in a case called Bernovich, which the Supreme Court

decided a year ago last July. During ther arguments of that case, which also involved the same statute section to the Voting Rights Act, but not in the redictioning context at our argument, both of those justices seem kind of open to arguments on both sides, but in the end they colalesced behind Justice Alito's opinion, which was a very hostile opinions to voting rights litis. And so if that pattern holes. This time, we're likely to see a significant

weakening of the Voting Rights Act. Now nothing is set in stone. You really can't predict anything from oral argument questions with any kind of certainty. They seem to open minded, but it's not clear that that open mindness will prevail by the time the case gets decided sometime later this year or more likely next year. Did Justice Thomas say anything of noteworthy? Justice Thomas asked a few questions. Justice course,

that didn't. They've both taken the point of view that the Voting Rights Act Section two, as a matter of statutory interpretations, does not even apply to redistricting, and so they are not likely to be vote to uh side with the plaintiffs, and saying that this a voting rights relations here and the chief the fact that he joined the liberals in dissent on the shadow docket case, does

that indicate he might side with the liberals again here? Well, what he said was I think that under existing law the plaintiffs should win, but I'm open to rethinking existing law. So I don't think we can read all that much into it from his vote in the stay question earlier this year. You refer to it over the last decade, the Supreme Court has already weakened the Voting Rights Act. So is there any chance that this case will be different or will they just continue on the road they've

been on. So there is certainly a history of the Court being hostile to the Voting Rights Act. There was the two thousand and thirteen case Shelby County versus Holder that essentially killed off a major provision of Voting Rights Act known as Section five. There was the Burnovitch case that held the Section two doesn't have a lot of

teeth outside of the resisting context. Also some other decisions, including the decision a few years ago written by Justice Alito called Abbott first Paris Case out of Texas, which also weakened the understanding the Voting Rights Act. So if that pattern holds up, I don't think it's going to be good news for minority voters. I think the real question is not there's a good chance that planeiffs lose. We already know from them taking the case and issuing

a stay that that's likely to happen. It's how they lose and how bad it's going to be. The three judge District Court ruling that agreed that Alabama's mapped likely violated the Voting Rights Act? Did that court follow precedent? And you know, was its decision in line with prior cases? I think that decision very much followed precedent. In fact, Chief Justice Roberts, in dissenting from the courts issuing of a stay less spring, said that much. I think it's

notable that the panel, the three judge courts. Two of the judges on that court were appointed by President Trump. So this is not, you know, a panel made up of Democratic appointed judges who might have a different viewpoint on the reading of the Act than say, the conservaive justices on the Supreme Court. Really, the question is not whether or not the planeffs win under existing precedent. I think that's an easy that they do. The question is

whether the Court's going to change the standard. I want to get your take on another redistricting case the Court is going to be hearing later in the term. It involves the North Carolina map, and it will test the power of state courts to invalidate congressional maps as two partisan with this controversial doctrine called the independent state legislature doctrine, and some elections law experts say that if the Court adopts that doctrine, it could rerea havoc on elections across

the country. I'm actually filing an AMIKS brief in the case, so I think that if the Court adopts the kind of expansive arguments that the planeffs have made in that case, it is going to vastly increase the amount of election

litigation in courts. It's going to give every state court decision interpreting a state election law that supplies in the federal election, and every state and local agency decision applied to a federal election a chance to become a federal lawsuit that could potentially pitch federal courts against state courts. And I think ultimately, if the Court rules the way that the Republican legislators want in the North Carolina case, that it's going to undermine voter confidence in both the

electoral process and in the courts. Thanks so much for your insights, Rick, that's Professor Richard Hassan of u c l A Law School. Will your argument next in case Oriyano versus McDonough, Mr Barney, Thank you, missr Chief Justice, and man it please the Court. And with that James Barney made his debut at the Supreme Court, a former Naval officer, arguing on behalf of fellow veteran Adolpho Ariano, who suffers from severe mental health conditions, including PTSD, following

an aircraft carrier collision. They're challenging an appellate court ruling that said the veteran can't get around the one year deadline for filing for retroactive benefits, and James Barney joins me, Now, James, tell us about your client. Sure, My client is Adolfo Ariano. He was a Navy veteran who served aboard an aircraft carrier back in the late seventies and suffered very traumatic event when that aircraft carrier collided with a freighter. He

was nearly swept overboard. He was working on the flight deck, observed several of his shipmates being injured and killed, and when he was discharged from the Navy a year or so later, he really had some traumatic disabilities because of that,

and that really is the focus of our case. He was lucky in the sense that his brother was able to eventually take over his affairs, in other words, become his guardian, and it really was his brother that was able to get Mr. Ariana to file a claim for his disabilities with the v A. But unfortunately, by the time he did so, many years had passed and Mr. Ariana had already been suffering from these very severe mental disabilities. And does this happen often that a veteran, you know,

misses the time when he or she can file. Don't the services tell you what you have to do is you leave? Yes, But unfortunately that doesn't always happen. When veterans leave the service, it's a very tumultuous time in

their lives. Some of these veterans have really known nothing else in their adult lives other than the military, and so it becomes their community, it becomes their life, and leaving the military, even if you don't have disabilities, leaving the military is a very tumultuous and sometimes somewhat traumatic process as you're trying to make that transition to civilian life.

If you add into that a veteran who's suffering from very significant injuries, so we're talking about traumatic brain injuries, we're talking about PTSD. Unfortunately, only there's a number of veterans who suffer from the effects of what they call military sexual trauma, and these can be debilitating and so on top of this tumultuous life change that's taking place,

they're suffering from these disabilities. And does the v A always tell the veteran all of the things they need to do to file for benefits they're supposed to, But I don't think it happens all the time, or if it does happen, it happens in such a flurry of other activity that the veteran doesn't really understand what's happening. The veterans are not represented by counsel at this point, so they're religious on their own, and unfortunately many of

them do miss this one year filing deadline. That's an issue in this case. The Circuit court ruled against your client. Why do you think the Supreme Court took your case? Is it a good sign that perhaps they want to reverse the Circuit Court? Well, I think so. I think they took the case because it's an important issue. It

really has to do with fairness. There was a case about thirty years ago called Irwin, and what the Irwin case held, this is a Supreme Court case, was that people who have claims against the government, like benefits claims, should be treated the same way as litigants in private litigation with respect to this issue of whether you can equitably toll or, in other words, forgive a missed deadline.

Most people in civil litigation who have a claim against the private party, if they miss a deadline, they can actually request it to be told. And what the Supreme Court said in Irwin was there should be no difference between that and when a person is suing the government or seeking a claim against the government. And yet despite that, the Federal Circuit had for many years ruled that veterans

simply are not able to take advantage of that. They basically said, veterans are somehow different, and we did not think that was fair. At the Supreme Court Oral arguments, What was the toughest question you've got, uh, The one that I wasn't quite prepared for. Was Justice Jackson asked me a question about statutes of limitations and to use

an analogy. In her view that status of limitations were sort of like funnel And I was struggling a little bit with that analogy, but I got through it, and I think I answered her question in a way that satisfied her. Other than that, most of the questions we expected there are difficult legal issues here, and so some of these questions got far into the weeds of doctrines like equitable tolling and so forth. But most of them I felt were expected, and I thought I was able

to answer them satisfactorily. So the government isn't even conceding that this is a statute of limitations. Uh. The Solicitor General argued, this statute it doesn't walk or quack like a statute of limitations, and it doesn't function as one either. Is that the toughest part of your argument? Well, I don't think so. Um. I thought that was the easiest part of our argument. I think this is very clearly

a statute of limitations. And I don't think that Justice Kagan really appreciated that particular answer, because she pushed back on the government on that point. The issue here is Congress has stepped forth a one year's time limit in order to qual A five for these retroactive disability benefits, and I don't think it's a stretch to say that

that operates like a statued limitations. The Chief Justice pointed out that this is an agency, the v A, that supports disabled veterans and not an agency with rigid rules like the I R S. Does that give you hope? It does give me hope. And the Chief Justice was exactly correct there. This doctrine of equitable tolling, believe it or not, has actually been applied to allow the I R S to benefit from this doctrine of equitable tolling in order to extend or to forgive deadlines that they missed.

And it would be an odd result to think that the I R S can benefit from this equitable principle, and yet service disabled veterans cannot. And I think that was the point that Justice Robertson was getting to. You've done many appellate arguments before, never before the Supreme Court. How different was it? Was it different? Well, it was certainly a new experience and humbling experience, I must say,

to some extent, it's not different. I've done arguments in front of the Federal Circuit, which is also a very impressive group of judges who asked very tough questions. I've even done on bank arguments in front of the Federal Circuit, including the one that preceded this Supreme Court petition. And there you're dealing with twelve judges and so in one sense, going from twelve to nine is a little a little

bit easier. But the Supreme Court is is really just special, and uh, it's just hard not to feel awed by the experience. Did you get a feel for how the court might rule? Which justices were clearly for you, which against I've learned over the years never to try to predict how the how a court is going to rule. I thought the questions that that I received were fair. They were the types of questions that I was expecting to get. Some of them were tough questions, but I

think we had answers to all of them. I felt that they were also tough on the government, and I didn't think that all of the Secretary's answers to their

questions were sat a factory. He didn't have a good answer for Justice Robert's question about why we should be so strict in interpreting these rules in a in a statute that is there to benefit disabled veterans, and also did not have a good answer when Justice Alito asked about this group called the Edgewood Veterans, and that's a group of veterans that has a very, very compelling claim that their misdeadlines should be forgiven. And I don't think

the government's answer there was very satisfactory. Does it seem strange to you that the government, you know, in this age where veterans are so much at the forefront and concerns about veterans, that the government would take this stance, even I'm not surprised, you know, to be fair, the government and one of the things the government is looking out for is that there is not a floodgate problem.

In other words, that if we if we allow this type of tolling of these deadlines, these statutes, limitations they have to be concerned with, are we going to create a situation where the amount of payments that we have to pay out to these veterans really exceeds the amount that Congress is authorized. And that actually did come up at the argument, and I was able to explain, I think to their satisfaction that we don't think this will

cause a floodgate problem. The type of tolling that we're asking for here, which is called equitable tolling, is only used sparingly. It's not something that's going to apply to every single case. But when it does apply, in other words, when you have a veteran or really any individual who truly does have a good reason why they missed the deadline, well, then it ought to be available, and it should be available to veterans in exactly the same way that it's

available to private litigans in private litigation. So basically, what you want is for veterans to have the same advantages that civil litigans have exactly. Let's say the Supreme Court turns you down, is going to Congress and alternative, Yes, that's always an alternative. Obviously that is a difficult path, um, but certainly, um, it would be an alternative to lobby Congress to make an explicit change in the law to

reflect this equitable tolling doctrine. But we really don't think that should be necessary because the decision in Irwin again, which is going back to all the way back, really answers the question and the answer is that these sorts of ordinary claims processing deadlines should be deemed tollable in

extenuating you know, in special circumstances. Are there implications for veterans beyond this issue if you win this case, well, certainly there's going to be a group of veterans who have current claims where they have asked for the equitable tolling. I mentioned the Edgewood Veterans are are one group of veterans, and so one immediate impact would be that they would now be able to go back and argue for equitable tolling, which right now they're not allowed to do because of

these previous federal circuit rulings. The other effect that will have is for future of terans, you know, in other words, veterans who maybe are still in the military and we'll be getting out in the future, and those veterans will be able to benefit from equitable tolling if they have some of these extenuating circumstances and they have really good

cause to extend that deadline. I just want to say that we had a lot of help along the way, and we were very grateful to receive amicist supports from a lot of veterans groups as well as a A r P and and many other organizations that really did a fantastic job supporting us as we moved this case along to the Supreme Court. Was your client at the

oral arguments? He was not, but I had a call with his brother immediately afterwards, and his brother was very pleased with how it went and we all have our fingers crossed. Thanks so much for sharing your experience with us. That's James Barney, a partner at Fitnigain. 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 Podcast. You can find them on Apple Podcasts, Spotify, and it www dot Bloomberg dot com, slash podcast slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg