The Supreme Court on Voting Rights and More Legal News

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Brian Lehrer: Brian Lehrer on WNYC, and it's quite a day for legal news. About an hour ago, the Supreme Court issued its decision in the important Arizona voting rights case. This is going to have implications for other states as well. One other remaining decision here on the last day of this year's term also came down. Also this morning, the Trump Organization's Chief Financial Officer Allen Weisselberg gave himself up for arrest as he, and the Trump Organization as a business are expected to be charged by the Manhattan DA later today. You've heard about Bill Cosby. With all that going on, we're joined now by our own Jami Floyd, WNYC Senior Editor for Race & Justice, and our Legal Editor. Hi, Jami.

Jami Floyd: Hello, Brian.

Brian Lehrer: The big case we've been watching was a challenge to two Arizona voting access laws. One that said, "If you voted outside your assigned precinct, your ballot was to be thrown out." The other limited what's called ballot harvesting, where one person can collect other people's mail-in ballots and submit them in a bunch. I see the court held that the laws restricting those things did not violate the Voting Rights Act. On white grounds did they make that decision?

Jami Floyd: Right. We saw first, this morning at about ten o'clock that the decision was coming down with Alito writing for the majority, and he had six votes. Even before I read a word, I knew it was bad news for the Voting Rights Act. Just to give it a little context, Brian, this decision comes as Republican-controlled state legislators are increasingly working to impose new restrictive voting rules. President Trump is crying fraud in elections and Republicans are moving to roll back expansive voting opportunities, that Democrats and civil rights groups have been putting in place over the course of decades.

The Democrats are going to the courts to say, "Republicans are trying to suppress the vote and thwart voting rights that we've been fighting for, we Democrats," DNC being the petitioners in this case. They say Republicans are trying to deny equal access mostly to minority voters, but also to young voters and poor voters. This decision, Brian, suggests that the Supreme Court and other federal courts therefore, will not be inclined to strike down these new Republican efforts. That's the larger message of the ruling.

To answer your question specifically, this particular case, which comes on the heels of the earlier Shelby County case, is the next consideration of a crucial part of the Voting Rights Act, and how it applies to voting restrictions that have a disproportionate impact on minority groups and voting rights disputes that have taken center stage in American politics. What the court said today, this new case, Brnovich is how he says his name versus the DNC-- He's the official in Arizona that was tangling with the DNC over these voting restrictions.

It concerned the two kinds of voting restrictions which you talk about, what they call ballot harvesting, carrying ballots for people to the polls or discarding that ballots that are cast at the wrong precinct rather than keeping them. The Supreme Court said today that Arizona can have these restrictions on voting, that it is not a violation of the constitution, or the Voting Rights Act for that matter cannot restrict Arizona's desire to regulate its elections as it sees fit. This is a matter for the states, and that the federal government and the courts should not interfere. That's essentially what Justice Alito said here.

Brian Lehrer: The court majority didn't have to come to a conclusion about whether "ballot harvesting" leaves votes more vulnerable to fraud-

Jami Floyd: No.

Brian Lehrer: -than other ways of submitting ballots, they only had to decide whether they thought the state had the right to make that restriction?

Jami Floyd: Well, that's right. The question was whether or not there was a disparate impact, "Is a disparate impact on minority voters?" Now, the court did agree that voting is a fundamental right, and therefore the court agrees that strict scrutiny, the highest level of constitutional scrutiny has to apply, but that's about it. That's where the liberals and the conservatives diverge.

Alito goes on to say that the state here has met that strict standard, because even looking at the totality of the circumstances, which is what the Voting Rights Act itself requires under Section 2, it can't be demonstrated. Alito finds that minority voters are disproportionately affected by this legislation, that the state has met its burden to show that it has a rational reason, a compelling state interest. I shouldn't use the word rational, rational actually has legal implications in the law. The state has a compelling interest in regulating elections, which I think people would agree they do, and that this law is tailored to meet that interest. That's the language we use in the law.

What's interesting here, Brian, I think I don't usually go to look at the lower court, I usually talk about the descent, but here I want to mention the lower court ruling that they're overturning. It was written by Judge Willy Fletcher, who was my law professor [chuckles] in law school. He writes for the Ninth Circuit here, and he's overturned by Judge Alito. He finds specifically that Latinos, Blacks, Native Americans were in fact disenfranchised.

He writes, in 2016 presidential election, "They were twice as likely to cast ballots in the wrong precinct as were white voters." He writes that this is because of frequent changes to their polling locations, confusing placement of the polling locations, high rates of residential mobility in those communities. He also writes, Brian, that the ban on ballot collectors has an outsize effect on minority voters, who use ballot-collection services more than white voters because they're more likely to be poor, older, homebound, disabled, to lack reliable transportation, childcare, mail services, to need help understanding voting rules.

Willy Fletcher adds, "There is no evidence of any fraud in the long history of third ballot party collection--," What we call harvesting, "In Arizona." I mentioned his opinion because he's actually directly contradicting Justice Alito. This is honestly a factual disparity.

It goes back to Justice Ginsburg's argument in Shelby, "I'm standing here in a thunderstorm and I don't have an umbrella." Do you see the real world we're living in? That's what Willy Fletcher, who is a white man I will add, is seeing in his Ninth Circuit State of Arizona, and Justice Alito saying, "Well, the law is--It's objectively fair." That's what he's saying, objectively it's fare. It's not designed to discriminate against anybody. Equal opportunity to vote, we can't strike it down. That's where the liberals and the conservatives diverge.

Brian Lehrer: Is Alito's majority opinion saying, "Yes, these rules may have a disparate impact in terms of making it harder for ethnic minorities and poor people and young people to get their votes counted, but it's okay anyway?"

Jami Floyd: He's saying that under the totality of the circumstances test articulated in Section 2 of the Voting Rights Act itself, Arizona's law is constitutional. It's fairly complicated. This case doesn't ask the court to look at the Voting Rights Act in itself as did the previous case, Shelby. This case is asking the court to look at the Arizona Law and other similar laws, as they intersect with the Voting Rights Act.

Section 2 bars any voting procedure or law that "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race". Brian, that happens when the law goes on to say, "Based on the totality of the circumstances, racial minorities have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."

Well, his interpretation of the totality of the circumstances based on the facts, I've heard here is different than Justice Kagan's, and certainly than Judge Willy Fletcher's in the Ninth Circuit. That is the language of Section 2 and there's no discriminatory intent clear in the statute as written in Arizona. It then has to be proved on the ground, you have to show that disparate impact on the ground and the conservatives just didn't see it.

Brian Lehrer: How much of an implication does this ruling have for what Florida is doing, for what Texas is doing, for what Georgia is doing limiting other kinds of voting, like limiting the number of days of early voting or on what days the early voting can take place, or limiting the amount of absentee voting, which of course was expanded so much during the pandemic? How broad are the implications for this?

Jami Floyd: I think it's pretty broad, because what the Supreme Court is saying, clearly the six conservatives are not going to be inclined to hear any challenges to those kinds of restrictive laws. The federal courts are required to apply the law that comes from the US Supreme Court. It greatly inhibits the DNC and other voting-rights advocates in their efforts to use the courts, as a sword on behalf of voting rights. It's a tremendous blow, I'd say not as big as Shelby was in 2013, but it's a blow to voting rights. I'm going to say not a surprising one, because I knew, I heard, I reported, I dug and I knew Alito had this opinion, and I thought he'd get the votes. He got them, and here we are.

Brian Lehrer: He got them totally along what we might call liberal conservative lines. That is, the Republican-appointed justices in the majority Roberts, Alito, Coney Barrett, Gorsuch, Kavanaugh, and Thomas, all voted one way. The justices appointed by Democrats, which is just three now, Breyer, Kagan, and Sotomayor, all dissented, correct?

Jami Floyd: That's correct, and the Shelby County decision back in 2013 was closer. It was 5:4. The court is much more sharply divided now, and here, obviously a starker, stronger conservative majority.

Brian Lehrer: [unintelligible 00:12:12] Justice Kagan dissent, I understand. Did you see it?

Jami Floyd: [laughs] I did. She quoted Dred Scott, that most infamous and shameful of US Supreme Court decisions. She leaned on the Willy Fletcher by the way majority opinion from below, but then in her own opinion, she says, "But for most of the nation's first century, the pledge ran to white men only. The earliest state election laws excluded from the franchise African-Americans, Native Americans, women, and those without property." All the people Willy Fletcher is mentioning below, "Native Americans, African-Americans, Latinos cannot vote," he says, and she's reminding us that this is part of our history.

She goes on to say, Brian, "In 1855 on the precipice of the civil war, only five states permitted African-Americans to vote, and at the federal level, our court's most deplorable holding made sure that no Black people could enter the voting booth." Her citation, "See, Dred Scott v. Sanford. It's a bold reminder, not just to America, but to her colleagues on the court of our history of jurisprudence and voting in this country.

Brian Lehrer: Just briefly, before we go on to at least one more Supreme Court decision having to do with whether New Jersey has the right to stop a natural gas pipeline, and this breaking legal news about the Trump Organization and Bill Cosby. Just a quick thought about Chief Justice Roberts, because he's become something of a centrist in the context of this court, he helped uphold Obamacare, et cetera, but he's far from that when it comes to voting rights, correct?

Jami Floyd: Yes, indeed Justice Roberts and Justice Sotomayor have even tangled. Before we went remote, the justices could and often did read their opinions from the bench. Justice Sotomayor has let Justice Roberts have it a couple of times when it's come to things like, affirmative action and voting rights. Of course I cite, again the late Justice Ginsburg's rhetorically brilliant dissent in Shelby, which Justice Roberts wrote on.

Right of course, I think what's pulled him to the center is his desire to keep the institution strong and his feeling that as chief, that's his role and responsibility, who knows what he would be as a justice if he weren't chief, but he has been quite conservative on some issues. One of them is voting rights and as I view it, our most precious right that's deeply disappointing and deeply concerning.

Brian Lehrer: Trump organization indictments, Bill Cosby out of jail, and more with our Legal Editor, Jami Floyd after this.

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Brian Lehrer on WNYC with our Legal Editor, and Race & Justice Editor Jami Floyd, with so much legal news this morning, including that the Trump organization's Chief Financial Officer Allen Weisselberg surrendered this morning to the Manhattan District Attorney's Office after a grand jury indictment. The exact charges aren't known, but it's being reported based on leaks, I guess, that this is over executive perks that were not reported for purposes of taxation. Jami, after all the investigation, that doesn't seem like a giant Donald Trump scandal, what's this about?

Jami Floyd: Well, it's contextual. After all these years of Trump, nothing's going to seem like a giant [laughs] Donald Trump story, right?

Brian Lehrer: I guess.

Jami Floyd: I do want to say, Brian it's an excellent segue from the Supreme Court, because you may remember that at the end of the last term, the last case was about the Trump business records. One of the last cases, I'd have to look to see if it was the very last and they said, "Oh, go forth. Cyrus Vance, you may proceed." And here we are with some of the fruits of that continued investigation.

I would say, Brian that this is not the end of what Cyrus Vance has to offer. This is the beginning. I would anticipate a superseding indictment of other members of the organization, perhaps family members, perhaps even the president himself. It may seem small now, but I don't think this is the end of the-- The first indictment isn't the last indictment. It can be amended, the complaint can be amended.

I will also say it does feel a bit like a mafia don, the number-two [unintelligible 00:17:27] goes to jail and number-one guy doesn't, but I have a feeling Cyrus Vance has a little more up his sleeve here. We can talk, if you want a little bit more about what it means to be giving gifts and [unintelligible 00:17:40] cars, et cetera, and not declaring taxes, and how that works as a criminal matter. In terms of the larger organization, there are more people than just Weisselberg here. I would not be surprised to see them rolled-up. In fact, he may roll on them and that may be part of the strategy [crosstalk] indicting him.

Brian Lehrer: I've been hearing for months that the reason for going after Weisselberg first might be to put pressure on him, so that he then does cooperate with prosecutors who would then have more evidence for a larger crime, perhaps involving Trump himself. If that's true, why wouldn't Weisselberg have reached a cooperative agreement by now rather than wait till he's actually charged and has to suffer at least that embarrassment, and he's reporting to jail?

Jami Floyd: Well, maybe they weren't able to persuade him to role. Maybe this is what they need to get there, to put him behind bars for a time, or at least embarrass him with what we call the perp walk, which we've all seen now. I can't answer that question, because I'm not in the room where it's happening but I still think it's an effective strategy to bring in one of the top-- The top, the Chief Financial Officer and apply some pressure. If the pressure doesn't work, you're at least getting more information about what was going on inside the Trump organization, where you suspect as the lead prosecutor in Manhattan, that illegal activity was occurring.

Brian Lehrer: Changing topics, what do you make of this Bill Cosby ruling that has him out of jail? Tell me if I understand the central issue correctly, that someone could be given immunity from prosecution by one DA in exchange for testimony, and then criminally charged by a future DA for what he said, "That would not be good." Is that the basis on which they release Bill Cosby?

Jami Floyd: Yes. Before I say anything about this case, I want to express my empathy for the victims in the case, or I should say the alleged victims in the case. It is a devastating blow for them, I'm sure. Many of them really didn't expect this to happen, but they're not lawyers. We, attorneys-- I think many of us saw this coming. I thought he might have been released on other grounds that were in his appeal, but to be fair-- And Brian, I think you've pretty much hit it on the head when you said one prosecutor and then another prosecutor, but it is the Commonwealth of Pennsylvania that made this promise to Bill Cosby.

People are saying he cut a deal. He didn't really cut a deal. What happened was the first prosecutor said, "You are free now to speak on the record in this civil matter, in an effort to give specific victims some measure of justice in the civil setting." Bill Cosby then spoke. Once he spoke, he incriminated himself and we have a right against self-incrimination in this country that I think every American-- It's the one thing we all know, "You have a right to remain silent, anything you say can, and will be used against you in a court of law." Kids know that.

Kids say, "You didn't read me my rights." Everybody knows that. If a prosecutor tells you that you are now free to speak, and you rely on that against your interest, our courts are going to hold that prosecutor's office not the individual prosecutor, but the Commonwealth of Pennsylvania to account. That was a grave error on the part of the prosecutor really letting these women down, and I think the court made the right call here.

Not because I have any real empathy for Bill Cosby or any opinion really about guilt or innocence, nor was the court saying he was innocent or acquitting him, or saying he's not guilty, but I do believe the system has to function correctly for all of those people accused of crime, who are not celebrities, that we never hear about, who make deals with prosecutors and need to have those deals honored. This isn't a technicality, this was a big deal, and I think the court made a hard decision but made the right decision.

Brian Lehrer: Let me go back to the Supreme Court before we run out of time for one more decision that they released this week, which has local implications. The court said New Jersey could not block a company from using eminent domain to take land for a pipeline that was set aside for conservation, I understand. They took it to move natural gas from fracking in Pennsylvania. This one scrambles my brain, because I thought that eminent domain was something that only the state could use, the government could use for some greater public purpose to seize other people's land. Help me with this.

Jami Floyd: This is a hard case, and it does have implications for our listeners in New Jersey. The reason the Federal Government is involved here-- And you're right, Brian, normally it would be a state issue and therefore the Supreme Court. It's federal, so it gets to the Supreme Court is because there's something called the Natural Gas Act, and that is a Federal Law. Under that law, the Federal Government can authorize private companies to use the Federal Government's eminent domain power in some circumstances. I think it's controversial, but that's not what you asked me, so I'll just move on with my analysis.

Brian Lehrer: Go ahead.

Jami Floyd: Can East, which is the company in this case, obtain the federal approval to put its proposed 116-mile pipeline from Pennsylvania to Mercer County which is in New Jersey, in our listening area. Federal officials gave it the power to condemn some property and obtain some other property through the eminent domain, and then this is where New Jersey comes in as the state.

They said, "No, no, no. We have the ownership interest in some of these parcels and we're objecting. We have sovereign immunity here which is a big constitutional law issue. You can't just come in here as a private party and take state land, and this affects our citizens," and that's how you get to the U S Supreme Court. A three-judge panel by the way in the Court of Appeals in Philly. It's not a Jersey court, but in Philly, which includes parts of New Jersey, parts of Philly, they agreed with New Jersey, but the Supreme Court did not and New Jersey lost the case.

Brian Lehrer: There, we have to leave it, so much legal news, so little time.

Jami Floyd: Oh, my goodness Brian.

Brian Lehrer: History does not end here on July 1st. The Supreme Court will start another term next fall with big stuff like, New York gun rights-

Jami Floyd: Abortion.

Brian Lehrer: -probably abortion cases. Harvard's Affirmative Action admission policies all coming up, so I think we'll talk again, Jami.

Jami Floyd: And will Steven Brier be with us? He may retire though I think not, but he may.

Brian Lehrer: Our Legal Editor, and Race & Justice Editor, Jami Floyd. Thanks so much.

Jami Floyd: Thank you, Brian.

 

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