Alabama, Rebecca Green, Merrick Garland discussed on Bloomberg Law


An electoral practice minimizes or cancels out the voting strength of members of a racial group or language minority group When we issued that guidance I noted that discriminatory redistricting schemes are illegal Attorney general Merrick Garland explained why vote dilution is illegal under section two of the Voting Rights Act but a divided Supreme Court ignored that definition By a vote of 5 to four the court reinstated in Alabama congressional map that a panel of judges found diluted the votes of blacks in violation of section two Joining me is Rebecca green a professor and co director of the election law program at William and Mary law school I've seen a lot of headlines that say in one form or another that this is a blow to minority voting rights Do you agree and if so how much of a blow Well if you believe in the protections the Voting Rights Act is supposed to afford minority voters in redistricting cases then this is certainly a blow because the map that the state of Alabama drew is sort of textbook vote dilution In other words it packs minority voters in one district and it cracks a group of minority voters in half to dilute their strength So it's sort of textbook packing and cracking and to the extent that the court's order means that the maps will go forward with those diluted districts than that certainly will be harmful Irreparably to minority voters in the event And just go back for a moment and explain what the lower court panel which consisted of three judges one appointed by former president Clinton and two appointed by former president Trump what they found So section two cases in the division context require a three part test First the court has to examine whether or not the minority voters are sufficiently large and compact to warrant their own districts of majority minority district Then the next two parts of the test look at racially polarized voting So whether or not for example the majority voters vote against minority voters candidates of choice or whether the minority community itself is politically cohesive And on all three measures the lower court unanimously found that those tests were meaning that the legislature had diluted minority votes in properly at least in violation of section two and that's why they ordered a second minority district he drawn Chief justice John Roberts was in the forefront as the Supreme Court gutted section 5 of the Voting Rights Act in the Shelby county case What does it tell you that he joined with the liberals here in support of having a new map drawn in Alabama Well chief justice Roberts has long been skeptical of Voting Rights Act section two jurisprudence But the legal or the processes set up by the Voting Rights Act in those two different sections are extremely different So you're ruling in one case and section 5 and Shelby county in 2013 and just doesn't map onto this section because the law is just very different So it's hard to sort of make connections Other than to say you know that certainly justice Robert has been skeptical of the Voting Rights Act sort of large obviously for a very long time But what's interesting about this case is that the law exists today is very clear and that's probably why you have an unanimous opinion below because like I said this is sort of a textbook violation of section two At least as far as the court has been concerned up until now There's no opinion for the majority but in a concurring opinion justice Brett Kavanaugh joined by justice Samuel Alito said that this decision was necessary because the lower court had acted too soon before coming election Do you buy that reasoning Well it's certainly a novel claim I mean the Purcell principle is it's known is this idea that federal courts shouldn't make changes right before an election because it would confuse voters and would make it difficult for the election officials to administer the election But neither of those issues are present here where we're months and months away from an election and where the Yale maps could be drawn basically with the snap of a finger So it's hard to square that argument and it certainly a very big extension of the principle to say in a month out of federal court can't mess with the state's plan And I think 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 In her dissent justice Kagan fall to the majority for using what's called the shadow docket Basically emergency orders to usher in a major legal shift and justice Kavanaugh responded by saying Kagan was using catchy but worn out rhetoric Was there some tension there 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 is an argument there isn't reason opinion that sort of 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 the top of the Supreme Court functions versus those that see an uptick in the number of these kinds of rulings and some concerns Since there's no reasoning that opportunity for argument and so forth Alabama's argument here was that it shouldn't have to elevate race over traditional redistricting criteria Does this decision indicate that the court's conservative majority may be open to weakening the role race plays in drawing voting districts I have a very short answer which is yes I don't often get unqualified answers from lawyers Tell us why you said yes What's extraordinary about this is that in 2013 when the court struck section 5 it said you know 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 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 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 surprising idea because for a long time the court has given Congress authority to enforce minority voting rights under the Fifteenth Amendment And so this would essentially be taking away Congress's power and at least to do what it did in section two The attorney general is challenging Texas's voting maps How does this decision play in that case Well anytime that a plaintiff is challenging 2020 maps trying to assert a section two claim Barriers are going to be perking up here in terms of the probable thinking on section two compliant So I think if you're voting rights attorney hoping to use section two to challenge a map you're shaking in your boots Thanks Rebecca That's Rebecca green of William and Mary law school Coming up next the second trial over ahmaud Arbery's killing This is Bloomberg What Drivers who switch and save with progressive save over $700 on average and those savings add up Imagine what you could buy.

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