They're Going to End the Voting Rights Act. But at Least We Got to Hear KBJ Murder a Guy in Court

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:01 Jenessa: When we tried to say in 1980, intent is required, Congress literally wrote a new law being like, no, it isn't.

0:00:18 Jenessa: Congress says, we don't care if somebody sat down and did this on purpose. The point is vote dilution is happening, so you have to correct it. And that's the end of it.

0:00:35 Matt: Welcome to Opening Arguments. This is Matt Cameron, and today we are rapidly responding to what I assume today's co -host, Vanessa Seymour, will agree is one of the most important Supreme Court cases of this term. What do you think?

0:00:45 Jenessa: Yeah, listened to some voting rights cases this morning and yesterday, and I'm not happy about it.

0:00:54 Matt: And of course, this is homework you would have been doing anyway, because your day job is actually looking at voting rights and voting rights cases. So you're the right person to talk to about this. This. I am today going to take on, fully take on the Thomas role, because I know something about any of this, but I haven't listened to any of it. I've only basically read what we've talked about before in Louisiana v. Kelly. So I'll probably have a lot of questions for you, and maybe some tough ones, we'll see.

0:00:56 Jenessa: Yeah, yeah, part of my job. Yeah.

0:01:16 Matt: After we talk about this week's oral arguments, we will talk about a related New York case that you'd already wanted to talk about, and is unfortunately, it sounds like really tied into the rights issue in Kelly, and then of course we'll have a quick footnote about just a ridiculously dirty cop. It's just good times just to change up the subject a little little bit. But real quick, if you want to preview what this case is and why it matters before we come back.

0:01:36 Jenessa: Yeah so the Voting Rights Act of 1965, probably one of the most famous pieces of civil rights legislation, it got rid of a lot of Jim Crow laws to enable people to vote, particularly Black people in the South, and it has just been slowly but surely stripped away over the years in its power, this case, I am deeply concerned that it could gut the Voting Rights Act to the point that it may become useless, depending on how this comes out. Crossing my fingers for some of the justices to just fist fight each other instead of writing a coherent decision.

0:02:20 Matt: Yeah, you're not the only one saying this. I've been seeing a lot of people saying this is one of the most important cases of the term, and that has a lot to do with our future and what the Congress is going to look like. So we'll have to talk about that. And then I don't know if we're going to get any better news out of New York. Is that going to be...

0:02:33 Jenessa: Okay, within New York, I'm hopeful about this case. I am concerned I am almost certain this is going to the Supreme Court rapidly. And that could either end with New York having some of the strongest voting rights protections in the country or a ruling that makes it so states cannot fill the hole of federal voting rights gaps and states will not be able to have their own voting rights laws that bring up that baseline, line, which we've been trying to do as the Fed is weakening it.

0:03:10 Matt: We've said recently, that's a floor, not a ceiling, usually, but it sounds like they might be setting a ceiling.

0:03:14 Jenessa: That's the concern, yeah, is that we are looking at the Fed has been slowly lowering the floor and we were like, cool, we'll just do better in New York. I am concerned this decision could go the other way and say states aren't allowed to do this. That is the worst case scenario here. But the best case is we hold on to this and and I have a really powerful law that I am going to start using in my own practice if we can keep it.

0:03:42 Matt: All right. Well, let's come back and talk about this.

0:03:44 Jenessa: Fingers crossed. Yeah.

0:03:45 Matt: But I do want to get into Calais, so we'll just take a quick break and we'll be right back with oral arguments this week in one of the most important Supreme Court cases of the term.

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0:03:55 Matt: So I remember we talked about Louisiana v. Kelly because it had been ordered for re -argument back in June, which is pretty unusual. It does happen, and it has happened in cases like Brown, which we talked About recently, which was set over and re -argued. This case was already argued. And what was the issue originally before the court earlier this year?

0:04:02 Jenessa: It was just a much smaller thing. Essentially what happened in the very beginning, Louisiana drew their maps, as is frequently occurring, particularly in the South. Black plaintiffs brought a case saying this is a racial gerrymander. In 2020, we had our census, We had our redrawing new maps. They said this is in violation of Section 2 of the Voting Rights Act. This is racially discriminatory. This is packing and cracking. This is diluting our vote by doing a racial gerrymander. And the lower court does find evidence of that.

0:04:55 Matt: So the Voting Rights Act, obviously, is one of the great civil rights era pieces of federal legislation. And it does a lot, obviously to balance out voting rights. And And Section 2 is in play in these cases we're talking about. So what does Section 2 actually do? What does it guarantee?

0:05:08 Jenessa: The Voting Rites Act in general protects a lot of different ways that your voting rights may be violated. Section 2 specifically is focused on race discrimination. Most of the time where that manifests, it's going to be in racial gerrymandering cases or at -large voting. Those are a lot of the cases. So that would be something like your town has five town council members, and instead of District 1, District 2, District 3, everyone in the whole town votes for all five council members. And so what that means is if you have like 53 % white people in the town, they get to elect 100 % of the council members. Whereas if you drew districts, presuming there is some sort of geographic compaction, because we know segregation is happening on a geographic level that people are living in segregated spaces, you would have drawn districts that had a majority minority group. So at -large voting comes up a lot in these contexts and then of course racial gerrymandering is arguing you did that very intentionally we had a racially compact segregated neighborhood and you drew a line right down the middle to try to split us up yes exactly so section two is trying to protect that the court just kind of refuses to believe that anyone could ever prove this um kind of on theme with their belief that no one could ever prove racism exists

0:06:21 Matt: To weaken their power. Right. Well, and also in Shelby County, when they're looking at Section 5 of the Voting Rights Act, which is the preclearance requirement which requires the federal government to approve certain state changes in certain places that have had gerrymandering records. So Section 5 has essentially been gutted already by Shelby County about 10 years ago, right? That's my memory of, this is about as much as I know about voting law. But when that was, of course, where John Roberts famously found that racism is basically over and we don't need preclearance anymore.

0:06:51 Jenessa: Yeah post post-racial society. It's all taken care of. And the absolute second they removed that requirement for preclearance, which means areas that in particular had a long history of doing this, they had to get their maps precleared by the Department of Justice. You didn't get to just make a map and then we'll sue you later. The second that was gone, a bunch of southern states redrew their maps and started getting sued for racial gerrymandering because that's obviously what they were doing. This is a a problem of the court's own making because they're, oh, no, we keep getting all these cases and you're asking us to like do math and try to figure out how many people should be in a district. That never would have had to happen if you still had DOJ preclearance. But here we are. And this is really important because, you know, initially we had the 15th Amendment, 14 and 15, very shortly after the Civil War, trying to make sure we protect civil rights. That one was specifically about voting, section one, the rights of citizens of the United States to vote shall not be denied or abridged by the United states or by any state on account of race, color, or previous condition of servitude. And section two, Congress shall have the power to enforce this article by appropriate legislation. And Congress, you know, like a hundred years later, about a little less than that, writes the Civil Rights Act. In the 1980s, specifically, there was a case that the Supreme Court held, oh, all the Voting Rights Act Section 2 is doing is just trying to enforce the 15th Amendment. Therefore, they have to find essentially intentional discrimination, invidious, that you either conceived, enacted, or maintained this policy with intent to discriminate. Congress, Congress two years later re -ups the Voting Rights Act. It was set to expire eventually. And they say, not only are we keeping this going, but hi, Supreme Court, we would like to tell you you've completely misunderstood our statute. We were not just enforcing Section 1 and 2 of the 15th Amendment. We Were Creating Additional Rights, which Congress does in fact have a right to do.

0:09:14 Jenessa: Listening to this argument, I feel like I have gone to a completely different planet where they're not allowed to do that anymore for some reason. Congress says it's not just about intentional discrimination. If you can prove there is a discriminatory effect, we don't care if somebody sat down and did this on purpose. The point is vote dilution is happening, so you have to correct it, and that's the end of it. You don't have to find this person writing down like, hi, my name is John. I am a Klan member. I'm drawing the districts. That's not supposed to be required. Things were going okay. We got the jingles test for how exactly am I going to show vote dilution. And then Ruscha shows up and ruins everything. Ruscha v. Common Cause is the case that says political gerrymandering is fine, though. We're not going to say that's wrong as a court. This is just a political question. Question and now everybody likes to tell us that um no no no we weren't drawing a racial gerrymander it was a political gerrymandering it's just a coincidence that black voters are overwhelmingly voting for democrats and we just made democrat districts we didn't make black districts yes

0:10:25 Matt: Can just use this as a veil anytime they need it.

0:10:28 Jenessa: Clearly

0:10:28 Matt: There's no way to get behind it. Okay. Just non -justiciable.

0:10:30 Jenessa: Clearly so that is what really causes the problem everything was going going okay until that moment. And now everybody's having a fight about it. Allen v. Milligan comes up. This is a case where Alabama did it. Alabama was having some lawsuits over Section 2 and their districting. This was in June 8th of 2023. This Is Like Not That Long Ago. John Roberts writes the majority opinion and says like section two stays it is not a problem to have an effects test it is somehow racist to have majority minority districts it's okay to use as a remedy you did something racist and we are going to purposely create a majority minority district a district that the majority of the people are from the minority group as a way to remedy this like we're not touching that it was held up as like a really oh thank god everything's fine yeah

0:11:37 Matt: And this is John Roberts saying it's okay to have a racially defined district. Okay, two years ago. Okay?

0:11:43 Jenessa: Yeah pretty much uh yeah that basically when you are in the process of remedying what has been found established to be a racial gerrymander racial discrimination already happened and how are we going to fix it that it is okay to consider race when you're trying to fix it because like how would you not in some ways um it's a little difficult you know there's other things you can do depending on the circumstances but it's fine guys like there's there's not a problem with this and somehow students for fair admissions happens the thing that says actually it is racist for harvard to want a diverse student body and to ever even consider race in admissions, except not exactly. Like, you can personally write about it. We already knew quotas were illegal. I don't know that anybody knows how to interpret that decision. They can ask about it? It's not clear to me. There's something vaguely racist about what Harvard was up to. And everyone has started interpreting that to mean all DEI is illegal and all consideration of race is illegal. And the real racism is telling white people they're in the minority. And I can't with this.

0:13:07 Matt: I keep hearing that that case means that affirmative action is dead. That's what they're telling us.

0:13:10 Jenessa: Yeah, yeah, essentially, because people believed that affirmative action was quotas, which it wasn't quotas have always been illegal. But that was what people were so worked up about was the belief that a quota was happening, and then somehow somebody decided that probably applies to voting rights too, and now here we are. We're going to essentially redo Milligan like two years later. We're right back having the exact same argument. Louisiana draws these districts, 2020 redistricting, and of course there is a lawsuit. This is a racial gerrymander. You manage to pack and crack black voters. You stuck them all into one district. You did make one majority -minority district. And then the rest of the black voters that are all around Baton Rouge in particular, I think was the focus, you just spread them out into all the rural areas and made sure there was not a second district. There's going to be a really strong showing in the trial court that that they create a bunch of illustrative maps. They're not saying you have to accept this map. They're just saying, as a demonstration, you're saying, oh, you know, now with Ruscio and everything, I wanted to preserve all of these incumbents. Somehow it's okay to say out loud, yeah, we purposely drew the district to try to make sure this person wouldn't get voted out of of their job. So no, no, that's what we were doing. We were trying really hard to make sure this person wouldn't lose their seat. We weren't doing that. We Weren't packing and cracking black voters. And the plaintiff showed, Hey, um, here's a whole bunch of maps that would preserve the incumbents and meet all the traditional redistricting criteria and create two majority minority districts.

0:15:13 Jenessa: Please explain yourself.

0:15:13 Matt: I'm hung up on this for just a second. I understand that what you're saying from Ruscio, that political gerrymandering is just basically not something the court can review if it's being designated as political gerymandering. But isn't that taking a perfectly good joke a little bit too far to say openly that we get to preserve these districts for people who've been in their seats for decades?

0:15:33 Jenessa: Yeah, I'm never going to get over this. I literally, it's especially upsetting because they say it's a non -justiciable question. We're not saying it's okay. They openly say it may well undermine the political process and undermine like one person, one vote and everything, but it's political question we can't touch. And somehow that has has turned into, we can walk into the Supreme Court in multiple cases now and openly admit, not only are they going to say, yeah, no, we purposely drew it to protect people, they are going to be arguing and Alito is going to defend, oh no, no. A part of traditional districting criteria, geographical similarity and maintaining neighborhoods, one of the traditional districting criteria is trying not to lose your job. I'm never going to get over this.

0:15:41 Matt: Right. We're not touching it. Yeah, Yeah. Hmm.

0:16:29 Matt: I guess I'm not a voting rights expert, but I thought one of the fundamental principles of American voting law was that you don't get to pick your own voters. You don't get to design your own voter's districts to guarantee your own election.

0:16:40 Jenessa: It's unbelievable. It's truly gross. The number of times Kagan in these cases, like somebody will be like, well, under Ruscio, and she's like, I wrote the dissent in that. No, no, no. Absolutely not. It's bad, man. It causes, it's making this problem so much worse and a hundred other problems. I just can't believe the audacity to be saying in front of the supreme court you have to respect my right to draw an incumbent protective district I'm so that's just the world we're in right now

0:17:20 Matt: That's news to me. I'm still observing that. But in this case previously with Kelly, they were talking about these maps specifically, but they were not looking at the bigger analysis analysis of the 14th, 15th Amendment and Section 2, which is the enforcement, as you said, of the 15th amendment. So it's ordered for re -argument in June, and they ask the parties to brief basically the constitutionality of Section 2. Is that what happens?

0:17:42 Jenessa: Yeah there's back and forth about like oh you need to redraw this map blah blah blah back and forth with the trial court and the circuits and then they go to the supreme Court to argue this And the Supreme Court literally passes it back after argument and everything and just goes, can you guys all just like rebrief this on questions of the 14th and 15th Amendment? And it sends an absolute panic through the voting rights community because here's the problem.

0:18:09 Matt: Sure. I remember this.

0:18:11 Jenessa: Who appealed this? At first, it was black voters. OK, we have districts you drew and we think they're racially gerrymandered. This is normal. We expected this, unfortunately. And there's a fight back and forth about whether they should redraw to their district and how once they do it after everything white voters sue and say no that was a racial gerrymander when you purposely drew a majority minority district to try to not violate section two of voting rights act that was racist and that goes up and now the supreme court is saying this thing that you guys didn't even bring up. We want to hear whether you think this violates the 14th and 15th Amendment, whether this violets equal protection under the Constitution. Yeah.

0:19:04 Matt: Let's do the thing that we try to do in this show and make sure that we understand the parameters of this. So Section 2 does say that you can't have any kind of political subdivision that's on account of race or color, straight up, right? So what's the problem? Why can't white people complain about this.

0:19:19 Jenessa: Yeah. So this is the thing. Imagine a scenario where not only were white people a minority voting bloc, but they were in this position. They met the jingles factors. They are geographically compact, they vote as a bloc, they vote differently than the racial majority group, they could bring a claim. There's no reason they couldn't bring a claim All of this is not for Black people, for Hispanic people This is any racial minority group It's about correcting past discrimination and dealing with current discrimination and it's about power imbalance. What's essentially going to come up at issue here the claim that to ever consider race is racist is what they're gonna say which is not how we have ever conceived of this

0:19:45 Matt: It's for minorities, right? Right. The last time when I talked about this, we talked about the re -argument order, I think all the way back in June or July. I think I misstated this a little bit, and that's why I wanted to go back and cover this very quickly. I was drawing more from the common social justice institutional understanding of racism, which is prejudice plus power.

0:20:28 Matt: You can't have true racism unless you actually have power behind the prejudice. That's why, generally speaking, there's this idea that people in racial minority statuses can't be racist in the way that they can be prejudiced, but they can't actually be racist.

0:20:41 Jenessa: Under a certain academic definition yes like everyone can be prejudiced of course but that if you define racism as prejudice plus power then when it comes to voting there's not like a place where you have some like poor oppressed white minority you could imagine it I suppose yeah

0:21:00 Matt: It can happen. Sure. You could certainly see a situation in which there's a majority minority switch. That certainly has happened in other countries and other places, but that isn't what Louisiana white voters are saying is happening. They're just saying that it's straight up racist because under the literal text of Section 2, that this is a violation of the 15th Amendment, even though that's not the purpose of the 15th amendment.

0:21:10 Jenessa: Now. Now, yeah. And mostly they're going for the 14th Amendment and integrating students for fair admissions. Students for fair admission said that it's, I can never say any of this with a straight face. I always just end up saying like, it's racist to try not to be racist. I can't summarize it without being kind of a dick about it. But they're relying on that same reasoning that you are trying to correct racism, but that doesn't matter. What matters is you ever thought about race when you sat down and looked at that map, and that's racist.

0:21:56 Matt: Which does it And again, for people that care about history, allegedly, and about what things meant at the time, I think that maybe they'd do a little bit of originalist thinking about the 14th and 15th Amendment and where the country was when those amendments became law. But no, not this time, not on this one.

0:22:04 Jenessa: Yeah, maybe. Yeah, well, and especially when we consider the fact that there is evidence in this case that the people who drew this were not in fact just doing a partisan gerrymander. The woman who is arguing for the plaintiffs. Janai Nelson from the Legal Defense Fund, I think she does a fantastic job in here. She deals with some really tough questions really well. She makes the point that in all of the lower cases where this has been back and forth, Louisiana has had, she calls it, shifting justification for their maps. So when you say it was a racial gerrymander, oh no, oh, it was a political gerrymander. When you point out that you could still political gerymander this way, oh, no, because the way you just drew that map, now that's packing together this racial district, and that's not right. And they always have some different reason why they don't want to pick your map, and they just keep changing their mind about why they drew their last map, and why they're picking this map. And it all goes towards those jingles factors that makes us think think perhaps this is all a pretext and in fact you drew a racial gerrymander and that's how we got here in the first place. There's many arguments that are going to go back and forth. In some ways I think this might be a good thing because I think as we'll go through it's not obvious there's a single argument that the conservative side wants to make. One that seems to keep coming through this idea that if you think about race when you draw a district it's racist.

0:23:48 Matt: Right.

0:23:49 Jenessa: You'll hear the first clip here is someone arguing for a federal government make that argument.

0:23:55 Matt: So Hashim Upan, I'm arguing for the Deputy Solicitor General taking the federal government's position, which is what?

0:24:01 Jenessa: We have the federal government, Louisiana, and the plaintiffs all arguing this was a racial gerrymander against white people and you should never do this. They're all going to have slightly different reasons, conflicting reasons, why you can't do this though. But this is the federal government's position on specifically why why this is racist

0:24:25 Clip: This is enforcement legislation. So we agree it's not an intent test, but it has to at least be smoking out conduct that presents a significant risk of intentional discrimination. That's the phrase that this court used, and Bernie used the phrase that the district court used in Katzenbach too. Again, one way of thinking about this is if you think there's a problem here, white Democrats in West Virginia, they don't get districts drawn for them. White Democrats have zero representation in West Virgina, even though they're a significant percentage of the state. The reason why Section 2, as it's being construed in jingles as a problem, is it's saying that you have to create a district for black Democrats that you would never create for white Democrats in a Republican state. It's essentially being used as a reverse partisan gerrymander on purely racial grounds.

0:25:13 Matt: Reverse partisan gerrymander on purely racial grounds. All right. What's the problem?

0:25:18 Jenessa: I love that line too where he's like this is a district you would never create for white democrats in a republican state it's like oh oh so what if this was in a blue state it would have been okay it's all relying on this idea that like we can justify this as partisan so it's it's fine right but I think you can hear in there a theme that is consistent throughout this administration, that what's really going on is this argument that we should all pretend to be colorblind, that we should all intend to be blind to the whole problem. You will hear the the lawyer for the plaintiffs at one point says our colorblind Constitution, they're really focused on that kind of argument. This is the ultimate problem we're stuck in of they're gonna just keep arguing this like really essentially like an a historical trying to be blind to everything that's ever happened, including things that happened like freaking two weeks ago in Louisiana.

0:26:10 Matt: Mm -hmm. Sure.

0:26:17 Jenessa: The district court findings that found this is as the result of race. They're also going to really focus on this idea of intent. And everyone seems confused about this. The conservative justices just don't bring it up. The liberal justices keep coming back to like, Like, where are you getting this idea that intent is required? It couldn't be more clear. When we tried to say in 1980, intent is acquired, Congress literally wrote a new law being like, no, it isn't. You misunderstood the law. It's not.

0:26:53 Matt: It's the impact, not the intent.

0:26:55 Jenessa: Impact is plenty. Intent, of course, would also be enough, but impact is plenty You can show impact and nobody would care if it was intentional or not, or rather you don't have to show it. You don't have to prove it. I've never heard Jackson this angry ever. Normally she plays it very calm and cool and you'll hear her do a lot of like, um, I'm confused and she's not confused you are about to get absolutely wrecked and she'll do the like well you're saying this but my understanding, which is the correct understanding is this and it's just really embarrassing for everyone she's just not playing that game today. She just really is letting people have it throughout here. I pulled one clip that I think is representative of that, where she's really getting at, you don't need intent. And this issue that Section 2 is a way to detect a problem, and then we come up with a remedy. And yes if that remedy is race motivated if you are like we are going to use race as the predominating factor to draw this strict scrutiny would be invoked yeah it's like right in a way it's racial discriminating it's kind of a weird way to say it but there's a compelling state interest and it is something that will totally meet strict scrutiny so it's gonna be okay in in that situation, right? And also that's not the only remedy available. For example, the critical thing with like at -large districts, you could just make voting districts. That's not racist. That's just draw districts, like the majority of towns and cities vote by district, not at large. If you just draw a district, there's no race conscious anything going on there. So essentially Essentially, what she's getting at is all of this supposition that somehow Section 2 requires you to do racist things and it's a remedy that's racist. No, it's not a remedy. It's a method of detecting a problem and it opens you up, if you detect a problem, to many possible remedies. Identities some of them are not race neutral but they will pass strict scrutiny most of the time so that's okay she's going to say that less gently than I am in this clip

0:29:22 Matt: Well, let's hear it.

0:29:22 Jenessa: No

0:29:23 Clip: Draw a second minority district. Sometimes it might not. And yet your answer to Justice Barrett was, well, everybody just knows that that's the automatic remedy. So can you help me figure out that disconnect? Well, Justice Jackson, I think there's a reason why this court's voting precedents, going all the way back to Shaw 1, are so tied up with race. It's because the remedy, as parties and the courts have understood Section 2 to operate, is almost always going to be race-based. They're so tied up with race because that's the initial problem. Right. That's where that's the beginning. The beginning is the claim that a person makes under Section 2 that because of their race, they are not being afforded equal electoral opportunity. It is a separate question as to how we go about remedying that and the extent to which we need to use race as a remedy. That's the question we're here on today. But the Section 2 issue is just what circumstances do we look at to determine whether this problem of unequal electoral opportunity on the basis of race is occurring? Right. And a couple of responses to that, Justice Jackson. Wait, so can I say, why is that not a compelling state interest to identify areas in which that problem is occurring. Current. Your Honor, of course, as this court recognized in SFFA, states can remedy intentional intimidation. No, I'm not talking about the remedy. I'm talking about to identify. All right, so if I'm right that Section 2 is about identifying the problem and then requiring some remedy, I don't understand why your answer to Justice Kagan's question about is this a compelling state interest is no. The answer is obviously yes, that you have an interest in remedying the effects of racial discrimination that we identify using this tool. Whether you go too far in your remedy is another issue, right? Your Honor, I think step zero in all of these cases, it was certainly step zero, in the Robinson litigation, is the plaintiffs came in and said we want another majority black district. I thought they came in, and said we are not receiving equal electoral opportunity because our votes are being diluted. Which is the same way of saying we deserve a second. No, it's not because that again, just trust me on this, that the second electoral or second district is a remedy that one could offer for a problem that we've identified. And the whole Robinson litigation was about identifying the problem. Is this really happening? In many, many Section 2 cases, the court says, you're wrong. You're fine. There is not an electoral opportunity being denied to you. Go away. In this case, the Court said, I see. I'm looking at the factors. I appreciate what you're saying. You've proven that we have this problem. And so the next question is, how do we go about remedying it? Right, and the problem, Justice Jackson, that the Middle District identified was not intentional discrimination, and in fact, I think when I hear...

0:32:28 Matt: Wow. So yeah, he does not want to hear this question.

0:32:31 Jenessa: She lays into him about intentionally. She is not having his shit today like oh boy I think you can probably if you listen to a lot of arguments you can pick up that is not her normal tone she is done with everybody and and that that is maintained throughout the

0:32:47 Matt: It is so obvious to her, and certainly, personally, in a way that it's not obvious to us. But it should be obvious to anybody that race is at the center of all of this, and they're just trying to pretend like it's to here.

0:32:54 Jenessa: Day yeah yeah yeah I you know you really have to feel for her as like the youngest member of the court as a young black woman to just be in this position where she's just listening to a bunch of older white men on the court entertain this like it's normal.

0:33:14 Matt: Yeah, sure. And tell her what racism is. Yeah. Great. Sure.

0:33:27 Jenessa: It's frustrating. I think she did a really good job there of just hitting on every point of like why this doesn't make any sense.

0:33:36 Matt: So the conventional wisdom on the re -argument was that they were going to nullify Section 2. They're just going to essentially render it meaningless the way they did with Section 5 with the preclearance. Is that kind of how it's looking here?

0:33:46 Jenessa: So this is where I'm at right now. Sotomayor, Kagan, Jackson, they all are really clearly communicating. Everything's been mostly working so far. They're saying without saying like Ruscio kind of ruined it. But that the real problem is if you don't like the remedy we came up with on an individual basis, object to that particular remedy and we'll come up with other remedies.

0:34:10 Jenessa: You don't have to throw out all of section two.

0:34:12 Matt: So we still need this tool, as she's saying, of identifying when there's racially segregated gerrymandering going on.

0:34:18 Jenessa: Yeah, of course you do. Barrett, I think her argument is not winning anybody over because it's just confusing. She's going to get really focused on this idea that Congress is just enforcing a constitutional right and when they do that there's this city of bernie test that they have to be congruent and proportional and like kagan all but makes fun of her for how dumb that is I'm sorry like it doesn't they they have said five ways to sunday that they are granting rights beyond the constitution and kagan's like I don't even know what that test is supposed to was it it not congruent and proportional in the 80s is it not today like so nobody's on board with that gorsuch he's worth listening to in this one he is really focused on the idea that what we've been trying to do with jingles is just too hard for a judge to sit here and try to do math to figure out whether vote dilution has happened because apparently we're not allowed to use our brain in our eyes to see racism. We can only do like numbers for this. So he really digs in on the issue that the sort of middle of the road test, it's not middle of road, that the Fed is going to try to like preserve jingles, but like only for within party discrimination. He's like, no, this isn't going to work. He is pretty clearly arguing that Section 2 of the Voting Rights Act contract cannot be enforced with majority minority districts and it's almost seemingly towards you just it doesn't even work that it might be itself unconstitutional that's news to everybody who's been using it for like 50 60 years now whatever I think thomas and alito seem to be going with him kavanaugh is just doing a lot of like can't we all just hold hands like martin luther king jr you're wanted us to and look at all the things we agree on and hasn't racism got better now he's he seems very sad that everyone's fighting and I don't know where he's going to come out roberts roberTS wrote alan v milligan and he asked precisely two seconds of questioning in this two and a half hours of argument I can't nail him down I don'T know what he's going to do I have no

0:36:39 Jenessa: Idea um he would obviously not be enough if the three liberal justices and him is not going to save it. So really what I'm looking at here is probably the conservatives fracturing around. They want to get rid of this thing, but they can't decide exactly in what way it is racist and in what ways to still live up to MLK's dream of not being racist without doing any of the things that would actually prevent it. That's kind of where I'm seeing this going. I don't see a clear answer of like, they would all agree on something except maybe something like SFA, SFFA, unfortunately, that would just say like, it's racist to try to not be racist. I hope that's not what happens.

0:36:39 Matt: But ultimately, if they were to nullify section two, then the outcome, I mean, there's no other way to say this. We'd end up losing potentially, I assume, dozens of non -white representatives in Congress. Is that the end game here?

0:37:38 Jenessa: Yeah, right now there are, it's like 60 -something Black members of Congress. Something that's really important to remember is the extent to which Section 2 has been a, not just helping people sue to get these districts, but a deterrent effect to stop racial gerrymandering. Without this here how many people are going to become disenfranchised also recall that it's not just about black voters electing a black representative they also just want to elect the representative of their choice and that shouldn't only be decided by either the white republican they live next to or the white democrat they live in next to they should have the voting power that they are entitled to as a neighborhood that's what districting is about is creating neighborhoods that have shared interests and letting them elect a representative to represent their interests we still have fewer black members of congress than we did after reconstruction so still not living up to the promise

0:38:41 Matt: If I remember correctly, it's something with Milligan, and again, you can never trust my math, but it was something like a third of the population was only getting a sixth of representation or something. There was a pretty serious, obvious problem with the way it was drawn up, and they couldn't really say that it wasn't. So, well, we'll see. Obviously, we will cover this again when the decision comes down, and I hope it is not what we were thinking it would be, but we'll keep a watch on it. But thank you for helping me understand this a little better. This is not my field. So interesting stuff. Let's come back and talk about what's going on in New York. I think we can get through this as quickly as we can, but I just want to make sure that we can understand the implications on the local level and what you're looking at there.

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0:41:22 Ad: [Ad break 2 — ad music]

0:41:22 Matt: So I don't know anything about this New York case. I know you've been excited about it all week. What's going On?

0:41:26 Jenessa: Yeah um I maintain some more optimism for this one than I do the supreme court what's relevant here is they literally cited Louisiana v. Kelly in the oral arguments yesterday in a new york voting rights case which doesn't make a lot of sense because the oral agreements would be happening the next day and the judges did point that out like we don't know why the supreme Court took it and the person arguing in favor of invalidating our voting rights act basically said I think we do know why they took that case So that's a little concerning. Basically, New York State passed the John R. Lewis Voting Rights Act on the state level, that bill that they've been trying to pass on the federal level for a very long time. It creates a lot of protections against discrimination in voting for racial groups and language minority groups, but it also just creates a a lot of voting rights in general.

0:42:21 Jenessa: This part of the statute in particular, I've been really focused on. So one of the introductory sections, all statutes, rules and regulations and local laws or ordinances related to the elective franchise shall be construed liberally in favor of A, protecting the rights of voters to have their ballot cast and counted, B, ensuring that eligible voters are not impaired in registering to vote, and C, ensuring voters of race, color, and language minority groups have equitable access to fully participate in the electoral process in registering to vote and voting. The authority to prescribe or maintain voting or election policies and practices cannot be so exercised as to unnecessarily deny or abridge the right to vote. Policies and practices that burden the right to vote must be narrowly tailored to promote a compelling policy justification that must be supported by substantial evidence.

0:43:21 Matt: This sounds like it would cover gerrymandering.

0:43:23 Jenessa: Yeah, gerrymandering plus, I read that to mean anything that interferes with your voting right, a statute, rule, regulation, local law, or ordinance that is going to burden your right to vot is essentially subject to strict scrutiny. Nate. Compelling policy justification, narrowly tailored, supported by substantial evidence. I was really hopeful when this passed that I was going to be able to show up and say, hey, you know how like every time my voters complain and say like there's an accessibility barrier and you tell me, well, what can you do? It costs money to make the world accessible and I am struggling to get you to comply, this should allow me to say strict scrutiny, no excuses here. When you say, oh, the policy is you have to do it like this, and I say that makes it a lot harder for people with disabilities to get through your computer system, for example, if I can apply strict scrutiny to that, that's freaking huge to say, no, no, you have to make this accessible unless there is a compelling policy justification for why you cannot do it.

0:44:36 Matt: Which is going to be very hard to show when you're talking about restricting access to voting.

0:44:39 Jenessa: Yeah, it would make my life so much easier if we could use this. Technically, voting is supposed to be like a fundamental right, and I'm supposed to be able to apply strict scrutiny, but that has been freaking impossible on the federal level. Okay, we pass this. Everybody's excited. It's immediately used for this exact issue you of at -large elections. There's three towns that file suit very quickly. Members of the town who are members of racial minority groups who say, you're doing at-large elections and it's disenfranchising us. Newburgh, they were the last to file, but the first one to end up at our court of appeals. So it's the one that I paid the least attention to and ended up being the big one. They're all alleging basically the same thing. One of the earliest ones I want to give you as as the example. The town of Mount Pleasant, they do at-large elections for their town council. The town is 19 % Hispanic. We have that geographic compaction factor. 47 % of the village of Sleepy Hollow within the town is Hispanic. And within those village elections, they've had good electoral success. They are electing people who represent them. So if you had drawn districts, they would definitely get at least one district where they would be a majority or near majority and have some political power. And instead, by doing an at-large election, they maintain being only 19 % for every member of the board that they go to elect. This is explicitly laid out in the New York Voting Rights Act. That is an example of what it looks like to do vote dilution. And among the many remedies we offer one is just switch to election districts like the rest of the towns in the area you could do that

0:46:20 Matt: Instead of at -large. Okay. Sure.

0:46:30 Jenessa: Yeah so it's so simple can you just do this and this town immediately is like no no we're gonna fight it and I'm like how how how are you fighting this how do you have the time for this the way I knew this was going to be big like two years ago is is when I looked at the docket and I saw a bunch of people being admitted pro hac vice to represent them, meaning they're from out of state. And I was like, for what possible reason would you defend New York's election law or fight New York election law from out-of-state? One of the people admitted was chief counsel for the Republican National Committee for 10 years. Another one admitted had argued multiple election law redistricting cases at the Supreme Court and it was like oh oh we they think this is going all the way immediately they I lost all optimism for this law because I was like yeah the town of Mount Pleasant cannot afford those lawyers this is somebody wants this case yes

0:47:33 Matt: But also you said before that John Lewis, essentially this is a model of what the federal government should be passing and what other states want to pass, right? So they want to cut it off at the pass here. They want Supreme Court to say this is not something that Congress can do, right, is it? So this is the test.

0:47:42 Jenessa: Yes absolutely that was immediately my reaction is there's no reason those lawyers would take this case if not for the fact that they do not want New York to have this they do Not want other states to have This and they think this is going to go federal and I'm sure enough here we are the Newberg case which is essentially identical. It hit our Court of Appeals, New York's highest court. At the trial court, they got a judge to say that under Students for Fair Admissions, it's racist to say that the racial minority group is being racially discriminated against and to try to do anything about it. So you have to not do this. And actually, the entire New York Voting Rights Act is in violation of New York State Constitution, the Federal Voting Rights Act, and the Federal Constitution and the federal 14th Amendment. And I was just like, you got to be kidding me. Here we are.

0:48:52 Matt: Just because you're trying to ensure everybody gets equitable access to fully participate in the electoral process. This is some shocking radical language that we can't abide.

0:48:59 Jenessa: Yeah, the idea that when you could just draw these districts that would give people more representation. I want to give you the example of like, why does this matter so much? Here's what's going on in the town of Mount Pleasant. One example of the racial discrimination these individuals are experiencing where they would really like to elect people to this town council and town supervisor, the town supervisor declared a state of emergency over the fear that Hispanic migrants and asylum seekers were going to come up from New York City and live in the town and then, I don't know, step two, question mark, step three, the whole town explodes. Workloads it's not really clear what the fear is they're not going to leave the jurisdiction after the city ceases to pay for housing and and then what they made it a strict liability crime to house or employ anybody who is a migrant or asylum seeker which is probably super illegal in like a bazillion ways but it it served a severe deterrent effect if it's strict liability meaning you don't even have to know that that person is an asylum seeker or a migrant, which, by the way, are people who are legally in this country. You don't Even have to know if you just try to aid them or protect them. You are committing a crime like nobody wants to help anyone who looks Hispanic. That's what's really happening in this town. There's a a growing Hispanic population and they're freaking out. The town supervisor issued a press release opposing the cottage school hosted by the Jewish Child Care Association because they were taking in migrant children who had trauma issues. So they needed extra behavioral support and could not go into a regular school environment. And he was saying they were violating that emergency order And they were violating building codes. And he was going to come after and sue the Jewish Community Center basically for helping traumatize migrant children. That's the environment in this town right now.

0:51:12 Jenessa: They're not bringing this lawsuit because they're just like, oh, I just kind of wish I could vote for whoever. However, they are trying to get around a severe discrimination issue, and they can't elect even a single board member because they are disenfranchised by at -large voting. That's what's happening here. And if we could keep this law, we could protect these people. They could get a seat at the table to argue for their rights. I could get a seat at the table from my clients to say, you have to make this process accessible. And instead, we are running the risk at the oral arguments they literally ended by saying, we hope that you will put a stay on this because the decision in Louisiana v. Calais might invalidate this entire argument.

0:52:07 Matt: Sounds like it might. It seems like they have a point. Right.

0:52:09 Jenessa: It's possible. There is a severability provision vision at the end of the law. So I think, you know, when we read that first part, it was like an ABC and C was ensuring voters of race, color, and language minority groups. I think huge portions of this law that are still hugely impactful could be preserved under that severability portion.

0:52:29 Jenessa: I don't trust the Supreme Court to do that.

0:52:29 Matt: But the Section C is like a supercharged version of Section 2. It seems like it's an even better written version.

0:52:36 Jenessa: It is. It is. Yeah.

0:52:36 Matt: So that would be sorry to lose.

0:52:38 Jenessa: So on the one hand, maybe we can keep it in -house and the Supreme court will just, whatever they do, we will have to react to in some ways, or maybe with Louisiana v. Calais and then hearing this case because the lawyer immediately said, I will be appealing this to the Supreme Court the second I get your decision, is essentially how he ended the day. What could happen between Louisiana and this case is no state gets to have a Voting Rights Act. Or maybe New York can hang on to to at least part of this, maybe a substantive chunk of this. Maybe we'll get lucky and they'll say, states' rights, you guys can do it if you want. I doubt it. But maybe we'll get lucky there. I think it's important to note what we're losing here. We passed this law and it was really something special. And it was important. We were all so excited to really protect our clients, so many different groups of people. And this is where we're at is that we have to argue that it's somehow discriminating to try to help my clients very frustrated about

0:53:47 Matt: The world we're in. And that's certainly what it sounds like they're trying to do for the Calais. So we're out of time here, but I want to come back on a quick footnote.

0:53:57 Ad: [Ad break 3 — ad music]

0:53:57 Matt: Let's talk about Jeffrey Kriv. That's K -R -I -V. A very bad cop in Chicago. Someone in one of his cases once said anonymously that he would lie under oath for a piece of bubble gum. I think a fantastic quote. The thing that actually brought down this bad cop who was involved in all kinds of bad coppery. And it is, as I'm sure you know, very hard to force out bad cops, especially in places like Chicago, where he is. They're the best protected workforce, I think, in the world of American cops. I mean, really, like the union protections, the lawyers they have. And now, of course, as we've talked about before, the Trump administration is throwing DOJ resources at defending bad cops. They are going to extra step up, even though the unions are very well funded. They will make sure DOJ is flipping around basically the Civil Rights Division, which is supposed to be helping with consent decrees that are protecting people from bad cops, they're going to be helping to defend against allegations. And Jeffrey Kriv has had I think at least, let me make sure, I don't want to get sued by Jeffrey Kriv. Let me double check, yeah. Jeffrey Kriv had at least 92 misconduct complaints over the course of his long career. But the thing that we're going talk about today that I thought was particularly egregious is is that he was so lazy about his lies in his own life, about his tickets. And this man got ticketed all over the place. One thing the cops are kind of famous for, at least around here, is just parking wherever they want to and driving however they want. And so on his personal life, he was just parking. I've seen Chicago's a lot like Boston, where it's just very hard to park, and he's just parking all overthe place. So in 2013, Jeffrey Kriv got up and told a judge, The judge asks, may I ask you why you're contesting this ticket? Yes, my ex -girlfriend. Well, she took my car two days prior after I broke up with her. I filed a police report that it was stolen and they recovered approximately weeks after the fact. Here's the police report. That was done. I did have her arrested approximately three weeks ago and I got a court date coming up in January. So December, 2013, ex - girlfriend steals the car. This was about 22 tickets in. And suddenly, oddly, I don't know if it's the same ex-girlfriend, but this just keeps happening. He keeps telling courts all over Chicago that his girlfriend had stolen his car and illegally parked it.

0:56:10 Jenessa: No

0:56:11 Matt: Over and over. Krip did also use this excuse for running a red light, for lots of parking tickets. About 44 times he used this same alibi since 2013, prosecutors allege. Yeah.

0:56:22 Jenessa: Wait and so you're saying he's turning in a police report to to like verify what he's saying yes the the the car is stolen

0:56:31 Matt: Yeah. Maybe in that one case it was, and I don't know. This is all from ProPublica. We'll link to the stories. They don't follow up on what happened in that 2023. It could very well be that one time it did happen. And then he got this idea to start saying that his girlfriend had stolen the car. But it's so brazen because over and over again in all these different courts, within months of each other, he's telling the same story about, I broke up with my girlfriend. She stole my car, ran a red light, parked illegally, sped. There's actually a speeding ticket as well in August 2021. And this, again, is all under oath. He's testifying to different judges around Chicago about how his car was involved in all of these things. He often provided what he said were legitimate police incident reports. I think actually, I don't know, again about that one we're talking about, but I think some of them may not have been so legitimate.

0:57:16 Matt: He had all kinds of misconduct issues, you know, more so than most cops, I think. He retired, I assume, probably forced into retirement in January 2023, although again, it is very hard to get them to actually quit. It. Generally speaking, about 4 % of complaints against all Chicago police officers over the decades have been legitimate and have been found to have any merit. 28 % of his complaints were found to be legitimate, which is quite a lot. A lot of people want to file complaints against cops, but they're often just tested whatever the cop did. But that's a lot, that's one-third of your allegations. He actually was suspended in 20 days in 2005 after he was, again, illegally parked and

0:57:16 Jenessa: Dear oh no what

0:57:54 Matt: Towed like you are. He sent a letter through the inter-office mail system threatening to ticket at the cars of streets and sanitation workers in retaliation, threatening to ticket them. In 2006, he left the scene of a vehicle fire he'd responded to, removed the numbers that identified his squad car, and went to do a strip club to visit a waitress. 90 -day suspension for that, just kind of leaving the scene of a vehicular fire. There's less funny allegations as well involving injuries and violence against women and all kinds of other things. So yeah, I mean, investigated at least 26 times or just over allegations of dishonesty as a police officer alone, including not just lying about his own tickets, but writing people a bunch of false parking tickets. So when you hear people complaining about bad cops, this is not by far the worst example of the kinds of things that bad cops can do. They often can kill and severely injure people. They did do that. He did injure People as well. But just this kind of abuse of power, this kindof entitlement of thinking not only that you can just park wherever you want, rack up as many tickets as you want. But you can just go in and brazenly lie over and over and again, and think that nobody's going to notice that you're You're using the same very specific lie. When you're doing things like going 21 miles an hour over the speed limit in a school zone, it's your girlfriend, your ex -girlfriend stole the car. You know, I don't know. I really don't think it's supposed to be the same one. I think maybe he just had a lot of thieving ex - girlfriends.

0:59:10 Jenessa: Wait so he got caught where are we at right now

0:59:13 Matt: Yeah. So he was actually finally had to plead. He was about to go to trial, but he had to admit that he lied to her dozens of times. He was facing trial for multiple counts of perjury and forgery. So he's avoided jail time.

0:59:22 Jenessa: Oh so he forged the documents we

0:59:25 Matt: Yeah. Yeah. Some of the supporting documents for this. Yeah. Yeah. He had told ProPublica before he was going to fight it, but he decided to avoid jail time.

0:59:29 Jenessa: Think he was gonna fight it how oh

0:59:34 Matt: Yeah. And it does go down as a felony conviction, which means he's not supposed to be receiving his pension, which I don't think he's earned his pension. Most people don't have pensions. And I do think that's an enormous public benefit that you don't get to have when you have abused your power as many times and as often and as flagrantly as this man has. So great reporting from ProPubblica, who has actually been on this story for a while now. Still one of the best media outlets out there.

0:59:39 Jenessa: Sounds like no

0:59:59 Matt: Satisfying conclusion, even if he's ended up pleading instead of going to trial. But he did have to plead guilty to felony theft. So that's a pretty big deal. And that's hard, tough thing to get cops on. So good work, everybody involved. And good work ProPublica for the recording. We'll link to that. That's the end of Jeffrey Kriv. Oh, also, I'm sorry. I forgot to mention the other important part. 92 different cases now have to be dropped because he was going to be a witness in those cases. Yeah. It's really hard to put somebody on the stand as a witness when they've done things like that.

0:59:54 Jenessa: Yeah absolutely hey yeah oh yeah he's admitted to perjury how do you trust him to testify ever again

1:00:33 Matt: Well -known liar. And he also, there's all kinds of questions about his arrests, about about the allegations. He at one point set, I think, the city record for DUI arrests. So there's a whole bunch of people that who knows what's in those reports. But yeah, this is the power of one bad cop. So this is why we hold them accountable. This is why we can't allow them to be any more powerful or any more important than any other citizen. And just this kind of thing with the parking tickets, I guess it particularly irks me because it is so hard to park in places like Boston and Chicago. The rest of us have to pay a lot of money or get really lucky and grab a spot at just the right time. Just because during your day job you get to drive a police car doesn't mean that at night you get to park wherever you want. That's just not how it works.

1:01:15 Matt: And then write up false documents and lie under oath to support, again, for traffic tickets. It says so much about the state of mind. Yep. And this is what happens when you protect these people with qualified immunity and with police unions and with the full power of the DOJ under Trump. So yeah, it's a good news story at the end of the day that he's no longer working and that he was convicted of felony theft. But I just wanted to share that bad cop story. Good ending for bad cops.

1:01:20 Jenessa: Just pay it

1:01:41 Matt: So that's our show today. Thank you for taking us through the voting rights stuff. This is really important. We would have covered Cully either way, but I feel like we're a lot better off having you do it. So I appreciate it. And we'll come back next week. But how's the patent bar studying going?

1:01:38 Jenessa: Yeah it's going it's a lot of work and I'm very tired but we'll see it'll be over soon one way or the other and

1:02:03 Matt: When are you taking it?

1:02:03 Jenessa: My life will be minimally affected regardless so that's nice

1:02:06 Matt: Sure. That's true. It's not a huge risk for you, right? Because you still have a job.

1:02:09 Jenessa: Yes it will affect my job in no way shape or form so it is extremely low stakes oh plug for for everybody. This is going to air on the 17th. On October 20th, that is the last day to submit public comment to the Election Assistance Committee. They are considering a change to the federal voter registration form that would require proof of citizenship. Submit your public comment. Note that it's public. Use language that you would feel comfortable being part of the public record and Google -able. The League of Women Voters, American Association for People with Disabilities, they're all putting out form language. Get out there and submit how you feel about that. I think that would be a great idea.

1:02:54 Matt: All right. Yeah. Well, we'll be sure to link to that. And we will be back next week with more Law in the News. Thankyou again. Non -justicial.