Supreme Court, Alabama, Bloomberg Radio discussed on Bloomberg Law


This is Bloomberg law with June grosso from Bloomberg radio I've been talking to professor Rebecca green of William and Mary law school about the Supreme Court reinstating an Alabama congressional map that creates only one district likely to elect a black representative even after a lower court had said federal law required a second district The 5 to four order ensures that Alabama voters will use the original Republican drawn map in the November election The case involves section two of the Voting Rights Act which outlaws election rules that discriminate on the basis of race In the past the Supreme Court has said that the law bars states from drawing voting lines in a way that dilutes the power of racial minorities The dispute is the first Supreme Court case for the new districts being drawn around the country to govern the next decades elections Rebecca before the break you were discussing some of your concerns about this decision And I think what's especially worrisome about it is maybe it's going to mean that line drawers drag their feet to pass maps because if they can get it within many months out from the primary election and maybe they can win on the Purcell principle which just is a very bad set of incentives to set up It just means that if there are maps that do violate the law either because their racial gerrymanders or because they violate what's left of section two there's just this huge incentive to drag your feet and not pass a map for as long as possible in the hopes that you can sell free pass The three other conservatives in the majority didn't join in that concurrence Does that indicate that they might have had other reasons for siding with Alabama here I can't speculate Since I didn't write anything I would want to speculate on why But I think the fact that they voted in favor of lifting the stay suggests that they think that the lower court had it wrong So now in a separate dissent just at Elena Kagan wrote for the three liberals And she said pretty spirited that this was a disservice to black alabamians who have had their electoral power diminished in violation of a law this court once knew to buttress all of democracy What was your reaction to her Opinion Well you know what's extraordinary about this is that in 2013 when the court struck section 5 it said don't worry we have section two still here to protect minority voters And then now you have the court kind of coming in and saying oh you know states if states prioritize race this isn't what they've held of course because the case hasn't been heard on the merits but the implication is that if a state prioritizes minority voters protecting minority voters that they're somehow the violating the constitution would effectively render section two of constitutional That is you simply can't protect minority voters under section two because doing so is somehow prioritizing race and constitutionally So it's a pretty I don't want to say out there but it's a pretty surprising idea because for a long time the court has been confident or given Congress authority to enforce minority voting rights in the Fifteenth Amendment And so this would essentially be taking away Congress's power at least to do what it did in section two So is this then some kind of an indication that the court's conservative majority may be open to weakening the role that race may play in drawing voting districts for federal elections I have a very short answer which is yes And just explain why Well the Voting Rights Act section two addresses vote dilution So when minority voting power is diluted so that they can elect their candidates of choice So for example a legislature looking at a group of compact group of minority voters and cutting it in half so that they're they can't represent the kind of their candidate of choice That's kind of what that's the harm that section two is trying to address And so if a court orders you to not do that and draw a district that doesn't divide that minority community in half then in order to do that what Alabama is saying is that you are prioritizing race and you can't do that without violating the constitution So effectively what the state is saying is that we can't comply with section two because that would be violating the constitution And if that's true then no more section two Justice Roberts chief justice Roberts dissented but he didn't join Kagan's descent He wrote his own and Rebecca did the chief sort of say that Supreme Court decisions regarding vote dilution claims are not that clear I mean he certainly did sort of suggest that he thinks that the jurisprudence in this area isn't coherent But I think he wasn't ready to lift the stay he was basically wanting to have that fight happen another day and not in this context Where I guess the implication is that he thinks that the plaintiffs don't have likelihood of success here Justice Kagan faulted the majority for using what's called the shadow docket to usher in a major legal shift Justice Kavanaugh said Kagan was using catchy but worn out rhetoric Did you see tension between the two justices Well I think clearly there's been a lot of concern about how much activity is happening at the court in these emergency orders where there isn't argument there isn't a reason opinion there's a lot of action happening in the sort of extraordinary way where it's this emergency docket as opposed to your typical Supreme Court case And so I think there's tension between members of the court who think that that's just the order of the day and that's how the Supreme Court functions versus those that see an uptick in the number of these kinds of rulings and some concerns and there's no reasoning that opportunity for argument and so forth So if the justices schedule this appeal in the ordinary way it does they wouldn't hear the arguments until the fall And they would issue a decision perhaps months later So that means the 2022 election will probably be conducted using the challenge map That's my assumption I think there's no way that given the court has listed this day that there's no way that an election that follows 2022 is going to go on anything other than the maps of the stay true Coming up next we'll continue this conversation about the Supreme Court's decision about Alabama's voting map And we'll talk about what impact the decision may have and what it portends for the future of the Voting Rights Act I'm Jim grosso and you're listening to Bloomberg At firehouse subs a.

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