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- [00:01]
A
Some follow the noise. Bloomberg follows the money. Because behind every headline is a bottom line, whether it's the funds fueling AI or crypto's trillion dollar swings. There's a money side to every story. And when you see the money side, you understand what others miss. Get the money side of the story. Subscribe now@bloomberg.com. Welcome to Talking Feds. One on one deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host, Harry Littman. Less than six months before the midterms, it already would be a time of constant ferment in the courts and political branches to secure any sort of marginal advantages. But this year we are at a fever pitch, driven by the President's unpopularity, the razor thin margins in Congress, and a slew of legal battles. In the wake of the Supreme Court's opinion in Calais, which, as I've written in a recent substack that we'll link here, completed a three part demolition of voting rights in America, it's a critical time to check in with one of the leading experts on election law in the country and a colleague. Rick Hassan is a professor of law at UCLA where he directs the Safeguarding Democracy Project. He also maintains the really great Election Law blog and is the author of several books, most recently A Real Right to Vote, How a Constitutional Amendment Can Safeguard American Democracy. Rick, thanks very much for joining Talking Feds one on one.
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B
It's good to be back with you.
- [02:02]
A
So I don't want to squander our valuable time with you with just a sort of snapshot of the royal state of affairs with all the litigation in the wake of Calais. But let's talk about a little. Generally, when it first came down, you savaged it deservedly, but you also thought it was probably too, too late for many states to exploit. Have you been surprised by the rush and partial success anyway of efforts, especially by Republicans in the South? And what's the kind of overall prognosis at this point?
- [02:40]
B
Well, what surprised me the most in terms of the timing was not what the states did, but what the Supreme Court did. Not again, not on its ruling, but in terms of timing. So if the court would have released the opinion a month earlier, remember, this case has been pending for over a year. It was first argued in not this past March, but the March before that, and then re argued in October. If they would have released it a month ago, there would have been time for states to figure out what changes they were going to make if they released it in June, which I thought they were going to hold it at this point until June, then the primaries would be over and these changes would come into effect in 2028. They released it at what I would consider to be the worst possible time. Just in terms of election administration. I'm not even talking about voting rights here. People had voted early by mail in Louisiana. Overseas and military voters had voted by mail already. There's a federal statute that protects their, that they get enough time to cast those ballots from overseas. And then Louisiana just comes in and says that we have an emergency, but it only applies to one race. We're still going to hold the election for everything else. A very peculiar kind of emergency, I would call it a political emergency. And so I'm a little surprised at how aggressive some of the states have been, although not maximally. Right. So Alabama is talking about getting rid of their second of two black opportunity districts for Congress, but not both of them, which they could conceivably do. So it's really the Supreme Court that surprised me the most.
- [04:14]
A
Yeah, that's what I wanted to ask you about. You have a really good piece, your latest piece in Slate. Why is the Supreme Court in a rush all of a sudden? So not Calais, but in the aftermath of Calais, instead of waiting the normal 32 days I think it would be. And then also in Alabama, the super majority of conservatives actually accelerated the whole operation of the lie. Can you explain that a bit and talk about your recent piece?
- [04:48]
B
So first I should say that historically John Roberts, the Chief justice has been a very patient man. He first expressed his opposition to Section 2 of the Voting Rights act in 1982 when it was revised by Congress. He was working as a 26 year old staffer for the Justice Department. He was the point person on this and said this is terrible. It's going to lead to quotas, it's going to lead to proportional representation for minorities. This is not America. And he kind of bided his time. Congress in 2006amended the voting Rights act and re upped some of the provisions that were expiring. And then in 2009, Roberts had the first chance to strike down that part. The preclearance part in section five or the coverage formula in section four that applies to section five and he didn't. In 2009 he wrote almost unanimous opinion in a case called DiMudno which basically said there's big problems with the Voting Rights Act Congress, you better do something. Of course Congress didn't act then. It was not until 2013, after another round of redistricting that we got the Shelby county decision in which Roberts assured us, don't worry about the loss of section five. There's always section two. Roberts had historically been playing the long game.
- [06:09]
A
And I just want to say you presciently in 2013, wrote in the New York Times, john Roberts plays the long game and you don't see him playing the long game anymore.
- [06:18]
B
Right now it's a two minute offense. They're in the red zone and they're trying to do as much as they can. And so two examples of this are what you mentioned. So after Calais comes out, there's ordinarily a period for rehearing. It's kind of a formality. The Supreme Court almost never grants her a hearing. But the case is not really official official until a plaintiff has a chance to file or losing party's chance to file a petition for a hearing. And then it gets denied by the court, which can typically take a couple of months. But this was rushed out. The Calais plaintiffs wanted it out immediately. It's not clear that even if they didn't do that, that Louisiana's legislature still could have done what it did. But it sent a signal, green light. Then in Alabama, Alabama was the subject of a case called Allen vs. Milligan over its congressional district. They lost that case with John Roberts writing the opinion just three years ago. Odd, given what happened in Calais. But Alabama was found to have not only violated the voting Rights act, but the constitution by intentionally racially discriminating against minority voters. That's important because Calais was only a ruling about how the voting Rights act might work and how racial gerrymandering works. It wasn't a ruling about intentional vote dilution. So Alabama was basically enjoined, stopped by the lower court. You can't do any more redistricting until 2030. Till the next round of redistricting, Alabama goes to the Supreme Court. Said, we want to redistrict right now just for three of our districts, not even for all of them. Again, a very special kind of emergency. It's an emergency to help the Republican party try to keep control of Congress in 2026. The Supreme Court says, yeah, sure. What's odd about this is Justice Sotomayor wrote in her dissent from the court's order freeing this, sending it back, and essentially allowing Alabama to use its maps that had only one rather than two, black opportunity districts. She said, hey, Calais didn't talk about intentional vote dilution. So it's kind of an independent ground. This should Basically not affect the outcome. At the very least, send it back and figure it out there. Don't just lift the state, but the green light to Alabama, which may also green light to some other states. So Tennessee, Florida had already been in the process of doing this. And so a lot more re redistricting is happening than I expected a few weeks before Calais, because I thought we were really getting to the end of the cycle and nobody's going to be this audacious and the Supreme Court is not going to be this brazen to release this thing in the middle of this period. But they did surprise.
- [08:55]
A
And I, I wanted. There's also Calais itself, because it seems to me these are technically part of the emergency docket, the shadow docket. And the gloves have really been off, as you say. There's a certain kind of professed conservatism, you could say. And Alito saying, we're not really eviscerating Section two. And Rob, as Roberts had said before, we're not really eviscerating section 4. But here it really was a very kind of party line where they say in the majority. Alito says, well, otherwise they would have to run an election under a map we've determined to be unconstitutional. But that's exactly what the Supreme Court has permitted in the past. And that principle seemed thrown out. Something else was thrown out that I wanted to ask you about. And you wrote about what happened or what's the status of the Purcell principle that one might have thought would have figured in these most recent rulings by the court? Can you. Can you explain at least what it is and is its absence peculiar in these last couple months?
- [10:12]
B
So back in 2006, there was a challenge to Arizona's strict voter ID law. The case hadn't gone to trial yet. And the plaintiffs went to the trial judge and they said, we want a preliminary injunction. This is a common thing that civil rights lawyers will do. We think we're likely to win and our clients are going to face harm in the interim. So how about enjoining the use of the law till you can work this all out? And the district court said, no, I don't think you're going to win. I'm not convinced you are. Arizona can go ahead. And then the Plains went to the ninth Circuit, and the ninth Circuit reversed that. And they said, yeah, you can't use your voter ID law. Then Arizona went to the U.S. supreme Court, and the U.S. supreme Court reversed. The Ninth Circuit restored what was the status quo after the trial judge ruled, meaning Arizona could use its voter ID law in the interim it was a case called Purcell v. Gonzalez and the court said there was last minute court orders from federal courts can confuse voters. That can cause election administrator problems. This has morphed into what we might call the Purcell principle. I gave it that name back in 2016. It turns out to be pretty unprincipled principle because it has not been applied consistently. So first it was only applied in election administration cases, it wasn't applied in all of them. Then it started getting applied in redistricting cases. And the time nine months does not seem like the eve of the election, which is what the was talking about in Purcell when Arizonans were about to vote and they had to know if they were using voter ID or not. Now when the court in Calais in its rulings after Calais that immediately released the ruling and the ruling in Alabama lifting the stay in Alabama, it's not clear that the Supreme Court is subject to the same Purcell principle as for lower courts. We don't know because they don't tell us. But certainly the rationale behind it. Talk about voter confusion. People went to polling places in Louisiana and there were signs up, you can't vote in these races or if you vote in these races, it's not going to count. In part of Alabama they voted for house raises, in part they didn't. It's all coming at the last minute. This is exactly what Purcell, to the extent it is a principle was meant to stop. So whether or not this applies, whether or not the court thinks that states should have the right to do whatever districting they can and courts should stay out of it, the idea had been hey, lower courts, you should be cautious in making last minute changes and you could like that rule or not. I tend to think that making last minute changes should be weighed against other factors. How much irreparable harm would there be from a voter idea law or a change in a registering role, but at least be consistent about it, at least be forthright about it. This was not at all because as we talked about it just threw chaos at the system in these states which
- [13:20]
A
remains and we've talked about especially the role of Alito here. But you've really zeroed in again on the Chief justice and I do want to continue that focus because you've called Calais one of the most pernicious decisions in the history of the court and you've documented this moved from time to play to a two minute offense. I just want to get your take a little bit, Rick. I too wrote a substack that really, really takes the Court to task for all three of these decisions, which you've mentioned as well. But there are people who think of Roberts as the statesman and the umpire, calling balls and strikes. There are some who think of him as always having been activists. And then there is this school that sort of sees him as a little bit schizophrenic, and he's. There's like two different John Roberts, depending on the opinion. You make clear that you see this as the culmination of his and Alito's lifelong opposition against voting rights. Is that a sort of singular, you know, island of activism as you see it for Roberts, or do you have a sort of jaundiced view of his tenure generally?
- [14:47]
B
Well, it's really hard to know exactly what's going on. The Court is such an opaque institution. It's not as though Chief Justice Roberts is going to sit down for an interview and reveal his innermost thoughts. What we do know is I wouldn't say really it's about voting rights, but it's about race. It's about the use of race, whether that's affirmative action in education or the Voting Rights act or civil rights laws. Roberts definitely came in with this idea that the 14th and 15th amendments should be read not as protection against minority plaintiffs who've been wronged. Remember, the 14th and 15th Amendments come at the end of slavery, at the end of the Civil War, but instead as colorblind that race should not make any difference. There's a line in Alito's opinion in Calais where he says minority voters get the same rights and privileges as everybody else, no more, no less. It's kind of like the rich and poor can both choose to sleep under bridges in Paris. So, you know, I mean, so one understanding is this is the culmination of Robert's project. He finally was ready to pull the trigger. But Roberts really has shown himself as an institutionalist in the past, as I mentioned before. So what's changed? One thing is he's older. Maybe now they want to lock in their gains because they think if Democrats come in, maybe there's going to be court reform, maybe there's going to be some changes that will stymie. So maybe now the 71 year old rather than 26 year old is running out of time. The other thing is that John Roberts doesn't control this court. There are five other conservative votes, I think, to the right of him. I think he is probably the most moderate along a lot of dimensions of the conservative justices on the Court, which is kind of astounding. I mean, when he came on the court, you know, there was a brief overlap with o'. Connor. There was Justice Kennedy for a long time, right? He was. Roberts was kind of in the. In the. On the right compared to maybe not as far right as Thomas, but the idea that he's now in the center and he's not even the pivotal vote. So who's the center of the court now? Amy Coney Barrett. I mean, she has not written a word, so far as I can tell, on voting rights, but she is a very reliable voter with Alito in these cases. So Roberts, he might be an institutionalist, but he already saw the writing on the wall. What does he have to lose? And what I think is really interesting here, Roberts kept Shelby county for himself. And it was this real moment where he says, things have changed in the South. And he had earlier said, the way to stop discriminating the basis of race is to stop discriminating the basis of race. He gave this to Alito. Alito's the hatchet guy. Alito's opinion is so disingenuous. He says they were updating a 1986 case that had set the standard for 40 years. That's like saying you've updated a human being to a dead body by killing it. Still a body. We really wouldn't call that updating. So why didn't Roberts have some courage? I wrote a piece calling Alito a coward, but of course, that was facilitated by Roberts. Roberts in the majority. Just a little bit of Supreme Court background. The chief justice, if he's in the majority, he gets to assign the opinion. And often Roberts will assign the most important opinions to himself to write, and he didn't do that here.
- [18:13]
A
Yeah. Dobbs also, and I can't resist a quick departure about what you just said. The way to end racial discrimination, to stop discrimination, is by no longer racially discriminating. And it's just that, to me, at a time when Congress had overwhelmingly approved of the Voting Rights act, is such a clear legislative policy position and not a position of constitutional law. And I think so in both these cases, when we haven't even come to Rucho, it's really a sort of usurpation of the proper role. You're right about the overall composition of the Court. Initially, people thought that Justice Kavanaugh would want to be with him, but he's departed in important cases.
- [19:07]
B
And.
- [19:08]
A
And really, you have the people on the right who are pretty. And I say this without tendentiousness, but they are Irascible and independent thinking. And there's lots of times that Thomas and Alito don't want to be reined in by Roberts. Okay. I want to stay kind of broad. You now see a possibility that a 71 year old chief justice looking at possible reforms, looking at new appointments, wants to execute on. This is his time to go double time on anything else in his agenda. Are there areas in particular, Rick, I know you focus on voting rights that you see as potentially in the courts and the Chief Justice's crosshairs.
- [19:57]
B
Well, let me say we're recording this on Wednesday, May 20, right. Thursday, May 21 is an opinion day. And it would surprise me if we see an opinion released in a big campaign finance case. National Republican Senatorial Committee versus Federal Election Commission. It's very clear what the outcome is going to be. The Supreme Court is going to strike down a rule that limits how much parties can spend in coordination with their candidates. They're going to either overrule or pretend not to overrule, but overrule. An earlier case from a time when the Court was much more deferential to Congress's ability to regulate campaign finance. But how do you do it? One way to do it is just to say the reasoning was wrong there. See Citizens United. But another thing the Court could do is they could say we should really be applying strict scrutiny, the toughest level of scrutiny, to campaign contribution limits. That has not been the case since 1976 when the Supreme Court decided Buckley vs. Vallejo, the major case where the Court first looked at the constitutionality of campaign finance laws. If the Court did that, it could create a huge problem for individual contribution limits today. If you want to support as someone who's running for Congress, you can give them 3500 bucks in the primary and again another 3500 in the general election. Those are individual contribution limits. The Supreme Court in Buckley upheld a thousand dollar limit. And then eventually the the McCain Feingold law raises that to 2,000 indexes to inflation, which is why we have the 3,500 hour limit today. But it was judged under this less than strict scrutiny, this exacting scrutiny. Roberts has been ratcheting up what exacting scrutiny means. And if the Court goes big, here's another way the court goes big and say strict scrutiny to campaign contributions, then those might be in danger and could be thrown out within the next year or two. That would be a huge change. There's also the Watson case that's pending. This one I think is probably less important in terms of the substantive significance of it. It turns on the question of whether federal law bars states from counting ballots that are postmarked by Election Day but arrive after election Day consistent with state law. Does that violate federal law? Even if the court rules that it does violate federal law, which I think they shouldn't, because I think we know what the word election means, and it's not when ballots are counted, it's when voters choose their candidates. I don't think that's going to have a major effect one way or the other, but there's plenty of other things coming down the pike. Things could get a lot worse.
- [22:37]
A
Yeah. I just want to say Watson is part of a whole nother area of aggressive attack from the administration, trying to somehow use and leverage federal law into different ways of having different thumbs on the scale in different areas. And those to date haven't proceeded to the court. Of course, if they do, you know about election law, I've done some work on the ground with it. It's so fraught because things move so quickly. There are certain mistakes that are made that can't be remedied. You can't unscramble the eggs, and it's not a context for methodical decision making. And yet you know that that's what we inherit. I think of Bush v. Gore, for starters.
- [23:30]
B
I'm Michael Waldman, host of the Briefing Podcast. I'm a former White House speechwriter, a lawyer, and a constitutional scholar. And I'm president of the Brennan center for Justice. We work to repair and strengthen American democracy, from gerrymandering to abuse of presidential power, from Supreme Court reform to congressional corruption and more. What fun. You're going to hear new ideas in this podcast, and you're going to hear about the strategies and the legal and political fights that will shape the next phase of American politics. If you care about our democracy, the Briefing is a podcast for you.
- [24:04]
A
I'd like to open the focus even one more level. So beyond the court and the dynamic there to the impact on society and the democracy itself, because you wrote, I mean, you really, Rick, I think, used a periscope that saw around the corner and wrote just at around the time of the argument, that the decision along the lines that this decision took could, as you put it, place the court increasingly at odds with democracy itself. So I wonder if you would step outside the normal bromides about politics, about conservative, liberal, progressive, et cetera, and just speak to the consequence for the democracy of some of the decisions you've been really painstakingly criticizing in the slate pieces
- [25:01]
B
well, if you take the Calais case that we've been talking about interpreting the Voting Rights act through the context of a racial gerrymandering claim. And you take the Rucho case, which is a 2019 case where the Supreme Court said that partisan gerrymandering, when a state draws lines to help one party and hurt the other, that that's non justiciable, it might be unconstitutional, but there's nothing we can do about it. From 2019 in Rucho until 2026 in Calais, we move from partisan gerrymandering being odious but unpolesable to a defense to a claim of racial vote dilution. We didn't draw these districts eliminating Jim Clyburn's seat in South Carolina because he's black. We did it because he's a Democrat, as though these are two unconnected categories. Oh, black people happen to be Democrats in South Carolina. Well, there's a reason for that. In terms of what the parties stand for. 90% of black voters tend to vote for Democrats. In the South, 70% of white voters tend to vote for Republicans. So now the defense is, oh no, this is all about party and not about race. So you put these two things together, the Rucho case and then how it gets, how partisan gerrymandering becomes this kind of defense in Calais and it's created this race to the bottom. And so one consequence of this, and I know I get a lot of questions about this, is this going to stop Democrats from being able to take control of the House? And I don't know. I'm not a political prognosticator. I don't know how many seats it's going to cost Democrats and who's going to win in a wave election. I mean, let's leave that to Nate Cohn and the analysts at the Upshot or whatever. But what I do know is if you're a Republican in California or you're a Democrat in Texas, your voice in Congress has been significantly diminished. So that's one kind of harm. Aside from partisan politics, that's a real harm. And I also wrote in that Slate piece that you referenced about the bleaching of Congress. We're going to look at pictures of Congress in five or ten years if things continue the way they are. And it's going to look like Pictures from the 1950s, a bunch of white men and maybe some white women. But it's not going to reflect America of today, which is moving of critically towards becoming a majority minority country. And so part of the reason this is happening, part of it is I think it was too much to ask the Supreme Court to rein in partisan gerrymandering. I think Congress needs to do that. Part of this is a political failure. Congress has very adequate powers under Article 1 of the Constitution to rewrite the rules for congressional elections to get rid of partisan gerrymandering. There are a bunch of different ways they can try and do that. But part of this is a problem with the Court in the voting rights cases. Not only does Congress have the elections clause power in Article 1 in the 14th and 15th Amendment, Congress is specifically given the power to enforce by appropriate legislation equal protection of the laws, lack of discrimination in voting on the basis of race. Rather than the Court being deferential to Congress, which is of course accountable to the people, the Court has basically made Congress into a supplicant that has to go to the Court and make enough of an evidentiary case so that these grand poobahs sitting on our thrones can give their edict as to thumbs up or thumbs down. I think that mixed a lot of metaphors there, but you get the idea.
- [28:38]
A
I do get the idea because. But I mean it's really important because that's not even. They're not deferential at all. You Congress saying yes, yes, yes and the court seems outdated to us. Again, nothing about the law and the combination were late in the day for me to be saying this, but of the two Voting Rights act we've discussed and Russia which you've just raised, means anything goes for political reasons. And in the south that often means advantaging non minorities. But nothing goes the strictest of review for amendments that were meant, as you say, to remedy a grievous situation that we went to civil war over and that gave Congress special powers not just stated but special powers to help effectuate it. Okay, we are near the end of our time with you. I want, I did want to end to get your thoughts. It's a really vexing issue. It strikes me I'm kind of as I think you are, a little bit fuddy duddy where the Court's concerned and very wary of structural changes from the political branches. All that having been said though you have with each new controversial decision, the hue and cry increases for some kinds of reform, including ones that might immediately ameliorate the imbalance that now exists and others that wouldn't for a long time. I just wonder, Rick, what your thoughts are about your position, if you don't mind, but also your analysis of the proposals out there to dramatically reform the Supreme Court Well, I think term limits
- [30:19]
B
are a no brainer. They're not going to help us in the short term, 18 year staggered term limits. But why should it be that Donald Trump gets three appointments and Jimmy Carter gets zero? It should just be every president would know that if we had a term limit slot, they'd get two over a four year period and then we'd get some rotation and the Supreme Court would more reflect the views of the people. Roberts and Barrett have been complaining that the press and the public portray them as political hacks. And Iraq says the way to stop being called a political hack is to stop being a political hack. And so I think that little echo there. If the court is going to be by coincidence or design helping the Republican Party and all that it does, then you can't expect anything other than a reaction. Now, I'm not ready to jump on board the court packing train or any other particular reforms. Maybe jurisdiction stripping is better. Here's one thing I'd like to see. Alito in his disingenuous Calais opinion says we're just interpreting what the words of the Voting Rights act mean. Of course, I don't believe that. But Congress could come back and reauthorize that part of section 2 of the Voting Rights act and say, no, this is what we make it crystal clear. We mean to put the jingles test, which was put in Place in 1986, back on the books. That would dare the Supreme Court to say all race conscious districting violates the Constitution. Like, let's start there and let's see if the court's going to blink, just like the court blinked in the 1930s when there was the threat of court packing over what was going to happen with New Deal legislation. I think we have to see we have a court now, which was not true in the past, where all the conservatives on the court are from one party and all the liberals are from another party. It's increasingly taking up these election cases and consistently siding with the interests of the Republican Party. Again, not necessarily because the judges are consciously trying to help their party, but they were chosen in part because of their worldview and they know what the outcome is going to be. I think things are on the table and we're going to have to see how things develop. The other piece to keep in mind here is Justice Alino maybe is going to retire. Maybe he's not going to retire. Maybe Democrats take control of the Senate after the midterm elections. And so if Alito or Thomas have to leave the court because of illness or otherwise. Are Democrats going to hold that seat for two years for another potential Democratic president? I don't know if they would play that kind of hardball, but Mitch McConnell certainly would. We know that from what happened with Merrick Garland. So I think court reform and court politics are going to play a big part of how we try to right this ship.
- [33:12]
A
Very good. Thanks, Rick, for going broad and fine on these issues. You know a lot's going to continue to happen over the next few months. Hope we can speak with you more, but appreciate your time today.
- [33:26]
B
Thank you.
- [33:29]
A
Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube, where we are posting full episodes and daily updates on top legal stories. Check us out on substack harry litman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Fez has joined forces with the Contrarian. I'm a founding contributor to this new media venture, committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now, linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more@Contrarian.com substack.com thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansuma Hadrenathan, Emma Maynard and Hallie Necker are our contributing writers and production assistance by Akshaj Turbailu. Our music, as ever, is by the Amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you later.