Richard hansen look at federal Voting Rights cases for the past 50 years and talk about how gerrymandering constitute modern forms of voter suppression. This was part of a symposium tled and franchising enfranchasing. It is 1. 5 hours. From lunch. Ack m a our first speaker is william kunz. He was nominated to the federal bench in march 2011 by president barack obama and unanimously confirmed by the United States 3, 2011. October kirsch ized in commercial and labor litigation. He served as the associate or fester Brooklyn Law School from 1987 to 2003. Received an a. B. , and phd from harvard. He will discuss the 15th amendment to the United States constitution with a special on history at the District Court level. Wee will hear from will hear from on election law and campaign finance. He received his undergraduate education at the university of ma andy and received his phd from the university of california los angeles. ,rior to his current position he taught the chicago Campus College of law in los angeles. Clerkedessor has also for David R Thompson of the United States court of appeals for the ninth circuit. Author of over 100 academic articles and several books on election laws in the United States. Coeditor as founding of the journal. In 2009 he was elected to the American Law Institute and was named one of the most 100 influential lawyers in america by the National Law Journal in 2013. Actively involved with the press. His opinions have appeared on the New York Times and the washington post. Blog whichs a law provides coverage of the issues that face our country today. Please join me in welcoming him. [applause] the old New York County architecturally one of new yorks greatest civic monuments. Of two of newuct s most prominent architects. Eed is a dedicated new york city landmark. Sections of the interior are designated landmarks as well. The courthouse has retained its original spatial arrangement, monumentalg 30 boardrooms and a central rotunda. Their immense castiron, structural, and decorative elements are unparalleled in any American Public building. Panelists, ladies and gentlemen, i thank you for that kind introduction. I entered the tweed courthouse. My purpose was historical. I was completing research for my doctoral thesis on criminal sentencing. The new york records were housed in the tweed courthouse and the city clerk agreed to take me to the Storage Space housing the documents that i needed. The records were contained in their original leather binders. They went back to the era of the dutch. Unfortunately, this was the era of crack wars and terrible civic unrest in new york city. Thoseelves holding magnificent records were in total disarray. Metal leaning on binders, pigeons flying overhead, snow falling through holes in the roof. Wanaee. Way from s the clerk said, it is a mess but look at this. He took out a pocket knife, he opened it, he approached me. Not good in new york in those days. [laughter] he walked past me to one of marble pinkicent withrs i just described majestic decorations. He proceeded to jab the knife into the pillar. Ife,ider breaking the kn he carved out a piece of pink and white paint. I looked puzzled. He looked at me and laughed. He said, these aint marble pillars. These are cement and plaster pillars. Builtweed and his gang them had them painted to look like marble and profited from the corrupt difference. Approximately a 90 profit for boss tweed and his gang. I shook ahead and discussed. When he left me with my documents, he said, it aint marble, but remember this, kid, these pillars have held at this courthouse for more than a century. Eespite their neglect, despit the fraud, despite the misleading paint job, these pillars have stood the test of time. Amendment to the 15th of the United States constitution. A product of the generation of boss tweed. That on the surface may resemble beautiful pink marble, but let us take out our analytical pocketknives and apply them to the cover. To put it more eloquently, let us look at the law as a hol mesian fan. As Oliver Wendell holmes remarked, the life of the law is not logic, but experience. What is the experience of the 15th amendment . Beneath been its life the marble facade . Doesnt continue to support in the year 2017, if any . 1881, a Civil War Veteran wrote the common law. He said the object was to prevent the civil war view of the common law. He said tools were needed beside logic. The life of the law has not been logic, it has been experience. Even the prejudices with which judges share with their fellow men have more to do than the to determine the rules. The law embodies the story of a nation through many centuries and it cannot developed dealt with if it contains only the axioms and corollaries of a book of mathematics. To know what it is we have to know what it has been and what it can become. The most alternately consult history and the existing. Heories of legislation the most difficult one will be to understand the combination of the two into new products at every stage. The substance of the law at any given time corresponds with what is then understood to be convenient. Is machinery and the degree to which it is able to work out for desired results. Past. Epends on its refined those thoughts in an address he delivered in 1897. When we study the law are not setting mystery, but a wellknown profession, im please he didnt say the oldest profession. We are studying what we shall want in order to appear before judges. The object of our study is prediction, production of the public force through the instrumentality of the courts. If you want to know the law and nothing else you must look at it as a bad man who cares only for whichterial consequences such knowledge enables him to predict. That is a good one who finds his reason for conduct whether inside the law or outside of it in the vague sanctions of congress. Take the fundamental question, what constitutes the law . Text writersome saying it is Something Different than what is decided by the courts of massachusetts or england, that it is a system of reason, it is the system of reason that we follow, the deduction of an suppose, ethics which may orxioms may not coincide with the decisions, that if we take the man,of our friend the bad we shall find that he does not ore two straws for axioms deductions, but what he does want to know is what the massachusetts or english courts are likely to do. I am very much of this kind. The prophecy of what the courts will do in fact and nothing more pretentious is what i mean by the law. As you know, Congress Proposed the 15th amendment in 1868. 1870. Ates ratified in the text is deceptively simple and straightforward. The right of citizens of the United States to vote shall not be denied or abridged by the United States or anything on account of race and the color or previous condition of servitude. But Congress Shall have power to enforce this article by appropriate legislation. Thats it. The first state to ratify the 15th amendment was nevada. The 28th state to ratify was iowa. Wasfinal state to ratify 8, 1997. On april 1997. Ofer rejecting the amendment in 1869. My own home state in new york ratified it in 1869 but rescinded the ratification in on thet then reratified date that Hamilton Fish certified the amendment. I wonder what money changed hands. As a professor has brilliantly taught us over the last five years, to state that the 15th amendment has endured a tortured history is to state the obvious. The history hasnt made even more torturous by the process of litigation. N, i refer not to the ultimate pronouncement of the Supreme Court i hasten to add a level of jurisprudence above my print paygrade. They are always right and im glad at cspan is here. I refer to the more pedestrian activities of District Court judges and the trenches. Of of standing, burdens, the role of attorneys general, state and federal. Today i speak in defiance of otto von bismarck. As you know he said laws are like sausage, better not to see them being made. Perhaps that is so but i ask you to humbly suspend your belief in remember that we litigation in the trial judge point of view. Trial judges do not make the law but as a majorleague umpire there are balls and there are strikes, but they are nothing until we call them. Welcome to my world. You have before you the first cartoon dealing with wasymandering which published in the boston gazette march way sixth of 1812. Not the dragon queen from game of thrones. You havent drawn by the men who ofned the declaration independence, a Vice President of the United States. I never comment on current or pending litigation but you may hear the argument that gerrymandering has been with our republic for a long time. Im going to start more recently with a brief discussion of recent cases. Southrt with the state of carolina versus jefferson. In that decision the United StatesSupreme Court considered a case in which South Carolina file the bill of them might foring a declaration certain provisions of the Voting Rights act and an injunction thenst their enforcement by defendant, then the attorney general of the United States. The key features of the act were determine the areas that are most flagrant and define those areas, number one determining the applicability of substance provisions. Determining the provisions for state voting testing devices and the review of new voting the persian preventing the use of federal examiner to qualify recipients for registration. The Supreme Court held the sections of the act before the court to be relevant. They were made to give effect to the 15th amendment. The court noted alabama, georgia, louisiana, mississippi, North CarolinaSouth Carolina testsrginia and enacted still in use in 1966, specifically designed to prevent africanamericans from voting white americans to vote. The court noted that a variety of methods were used. Principal andthe discriminatory applications of voting tests. The key finding was the court ruling that pains any District Court judge. The ruling that says casebycase litigation against voting discrimination under the civil rights acts of 1957, 1960 to increase failed africanamerican registration. They proved onerous to prepare and were often followed by a shift in discriminatory devices, defiance is and evasions of court orders. The Supreme Court concluded that since casebycase discrimination proved inadequate, the court found that congress had ample authority to prescribe remedies not requiring prior adjudication. Attacked the practices more thansts, two thirds of adult blacks for reasons weve heard about today illiterate while less than one quarter of adult whites were unable to read or write. Were prescribed to ensure that white illiterates would not be depressed of the franchise. These included grandfather and the requirement certainy determined materials in english only qualifications. In lane versus wilson, they struck down procedural hurdles, smith versus albright and terry versus adams outlawed the whites only primary. The case of the United States versus thomas struck down improper challenges. Doial gerrymandering met its due. And in the case alabama versus the United States and louisiana versus the United States as well. Our analysis is when the Supreme Court wrote as follows. Congress had found that casebycase litigation was inadequate to combat widespread discrimination and voting because of the inordinate amount of time and Energy Required to tactics the obstruction encountered in these lawsuits. Systematicing resistance, Congress Might well the advantage of time and inertia this is their language, from the perpetrators of the evil to its victims. Thequestion remains whether specific remedies described in the act were an appropriate means of combating the able. And the question we shall address ourselves is this. Supremes hear the talking about perpetrators of evil often. Holmes he and bad men holmesian bad men, indeed. If you lack standing to him a you lack the ability to have the. Ourt determine your dispute constitutional standing is thus a prerequisite isnt a prerequisite to a federal courts hearing at all. Knows the dread scott case. Everybody says powerful language, some people say horrible language, some people say interesting language. Chief Justice Doherty says there are no rights that a black man has that a white man has to respect. Ok. Says, mr. And mrs. Dred scott arnott citizens. Ok. Guess what . Youre in federal court. Youre in federal court on diversity of citizenship. Guess what . Case dismissed. There is the federal diversity. Goodbye. Work it out in the states. Have a nice civil war. He doesnt do that. He makes it worse. He says, although he is not a citizen and there is no diversity jurisdiction, whethery wants to know or not congress can regulate slavery in the territories. Those political lightweights, washington, adams, jefferson, monroe they all ducked that question. Chief justice tony, elected by nobody, will man up, and he will tell you that congress cannot extend or block slavery from the territories. They have no power over slavery in the territories. Very tough lawyer from illinois said, i dont think so. Courtited states district for the district of columbia in the case of northwest austin municipal utility district number one and the attorney general of the United States in 2008, the District Court judge david ruled that section five of the Voting Rights act of 1965 are hibbitts covered jurisdictions from making any change in their voting procedures without first demonstrating to the attorney general or a threejudge panel that the change neither has the purpose or will have the effect of denying or abridging the right to vote on account of race or color. Declaratoryfs saw a judgment exempting it from section fives obligation. The plaintiff would argue that section five is unconstitutional. Arguing that when congress created the provision, it lacked sufficient evidence of Racial Discrimination to justify the intrusion. The court rejected both claims. They found the point if was not a political subdivision as defined in the Voting Rights act. And secondly, applying the standard that i just described, given the extensive legislative documenting contemporary Racial Discrimination in voting in covered jurisdictions, the congressional decision to extend section five for an at five years was rational and therefore yearstutional for 25 was rational and therefore constitutional. Before you start highfiving, you have to go to perry v. Norfolk, virginia. The Northern Division decided in 2009. The District Court judge, mark residentld that the did not have standing to bring the claim under the Voting Rights act. Failedidents allegation to state an equal protection claim against the city and prior was not a permanent injunction to prevent the city from making changes to election plans. Laws,urt also stated, neutral on their face, which happened have a disparate impact on certain groups, do not necessarily violate the equal protection clause absent a discriminatory purpose. Look at gerrymandering, 1812. Case, i dont know who the lawyer for the plaintiff was, but perhaps he or she should call their insurance carrier. The challenger failed to allege she was a member of a Minority Group and apparently failed to allege that her right to vote had been abridged on account of her race or color, thus suffering a constitutional injury. Dont hire that lawyer to bring your civil rights case. 2012, United StatesDistrict Court, Eastern District of arkansas, held that the plaintiff failed to meet the burden of the Supreme Court requirements. The court stated that there are three necessary conditions for a ofim that the use multimember districts constitutes actual exclusion. The Minority Group must be sufficiently large to constitute a majority in a Single Member district. The Minority Group must be politically cohesive. As aust vote sufficiently usually enable and to defeat the minoritys preferred candidate. The vote dilution provisions of the Voting Rights act can require the creation of majorityminority districts in which a Minority Group composes working majority. F the voting age population it does not require the creation of an influence district in which a Minority Group can influence the outcome of an election. Even ifs its preferred candidate cannot be elected. Case, bachusolina versus South Carolina decided in 2012, i see that your district judge told that race might have been an unintended consequence of the change rather than a motivating factor. I again give you the gerrymander. Bizarre irregular and shape of a voting district might the the result of politics. The house and congressional plans were allowed to stand. The judge perhaps signaled where he was going when he began his stating that 10 years ago the court was forced to take him on take on the unwelcome obligation of the redistricting from the veto of plans passed by the legislature in 2001. I dont think he was happy to have the case. This brings us to Shelby County versus holder. Know in recent years it is the landmark Supreme Court case regarding two provisions of the Voting Rights act in 1965. Section five require certain states and local governments to clearancel free before implementing any changes to the voting laws or practices and section four b which contains the coverage formula which determines which jurist addictions are subject to preclearance based on the history of discrimination torry voting. The Supreme Court ruled that section four b is unconstitutional because the coverage formula is based on data more than 40 years old. Therefore it is no longer responsive to current needs and it is an impermissible burden on the constitutional principles of offensive, and it is to the requirement of equal sovereignty of the states. Although some although the Supreme Court did not strike down the section five, it is clear that without section four b, no district will be subject to section fives preclearance unless the United States newress and act enacts a coverage formula. To thege iii said american populace when he heard that George Washington was stepping down and john adams would be the new president , good luck. [laughter] you find out of versus, North Carolina mccrory, decided in 2016, the court of appeals had this to say. These consolidated cases challenged provisions of a recently enacted North Carolina election law. The district rejects the contention that the challenge provisions violate the Voting Rights act i. In evaluating the massive record, the court issues extensive factual findings. We appreciate and commend the court on its thoroughness here it comes. The record evidence provide substantial support for many of its findings. Uhoh. Indeed, many on uncontested facts. District we know as court judges, nothing they say matters before the word but. But we must conclude that the District Court fundamentally aired in holding that the legislature did not enact the challenge provision with discriminatory intent. The court seemed to have missed the forest in carefully surveying the many trees. This failure of perspective led factourt to ignore medical critical facts, including the inextricable link between race and politics in North Carolina. Well, to be to be honest, the title i have you a fakelk, i give news series of tweets from the white house. These are not tweets that have come yet, i want you to think about concepts that each of might suppose it tweets put forth. E 15th amendment educationmatters. Here at an Academic Institution we all believe in education. Number two, family matters, you all believe that. Creative, perhaps you can sneak in a grandfather clause. Wealth matters, obviously, it is important. Property taxes. , who would want to have uninformed voters. Requiring ag with little knowledge of the constitution. Tradition matters, as a president said, we have many sounds, here we are blended them in the finest tradition. Do not throw it away. Then again, what traditions do we grab . Statesn matters, certain statesen designated as with free clarence. How fair is that . , why is anyones spending money on ancestry. Com . Back to they to get grandfather clause to escape it . Citizenship matters, are you a citizen . The you speak english, do you speak spanish, do you speak apanese, do you speak different language . Should you be able to vote if you dont understand the language . Judgeust a District Court , i only asked questions, i dont answer them. I thank you for your attention. [applause] good afternoon. And you hear me all right . Andk you to the president the school for inviting me to be part of this esteemed group. Y talk will differ in two ways first, most of it will be historical, mine will be contemporary, talking about contemporary issues of race, politics, and voting at the Supreme Court. Secondly, the other talks are quite eloquent. [laughter] we will just leave it at that. I am going to take you back one year to start my talk to the oral arguments of a case that was initially known as mccoury versus harris. As cooperecame knows versus harris. It was determined in the case in which North Carolina drew the district lines for a legislative district, constituting what the Supreme Court called an unconstitutional gerrymander. The question before the court which would seem quite bizarre to someone who is not a bizarre, the question was, when north 25,000a moved africanamerican voters from guilford county, from one district to another. Was it predominately about race, or was it about party . If it was about race it was unconstitutional. If it was ok. Defended what North Carolina did, when asked about the 25,000 black voters who were moved, just because black voters were moved, that didnt prove anything, it is still about politics. He said, the fact they brought in a bunch of africanamericans, is as interesting as the sun coming up. Everybody agrees there is a 90 correlation between race and partisan identity. That is an odd thing to say, it was trying to figure out if it was race or party. He seemed to be saying it was both. What we know in the last 20 years, we have seen the emergence of what a political conjoint called polarization. This is a more consistent alignment with race, party, and ideology, especially in the American South. There is a reason africanamerican voters vote for the Democratic Party. There is a reason why to thirds of the white population this off oakland Republican Party. It is not a coincidence, the ideology is lining up. There is a fundamental mismatch between legal document doctrine and the reality of the situation. Are we see in the courts three different ways of trying to deal with this racial party problem. The first way i will talk about, is what i will call the race war party approach. Ascontinues to treat these separate. The second is treating race as a proxy. That leads to a lot of different outcomes in some of these close cases. The third is the party all the time approach, some will remember that song. Most of you are too young or too old to know. [laughter] the party all the time approach is it is better to deal with as cases involving politics cannot race. I will conclude saying the Supreme Court would like to adopt none of these cases but one that is going to be bad for both race and party. Let me just start with some basic background of some terminology that the judge already use. Situate thatwe can racial gerrymandering cases. They are very complicated and hard to grasp without background. This is a map of mobile, alabama. But say they are electing members of the city council, and thes say as it was true situation of racially polarized voting. The town has 60 white voters and 40 africanamerican voters. If you dont draw any districts for your Seven Members of city council, that is when you have atlarge voting. That comes up in some of these cases. With seven different lines being drawn normally. If you have a situation of racial polarized voting, we know what we get, we have an allwhite city council. In thes the situation city of mobile, alabama. Not really was touched by the initial Voting Rights act of 1965. Poll taxes and , it required as we heard from the judge, preclearance that is federal approval before making changes in your voting laws. Votinge to prove to get laws that they would not make voters were soft. Section five did not touch Something Like an atlarge system. There was no need to do redistricting because there was no district. Even if the population change, there would be no method to go after it. How to deal with this problem . In the city of mobile versus toden, which was a challenge their atlarge voting system, the Supreme Court was faced with aproblem if this leads to consistent allwhite city council and no representation of africanamericans. If that violent the 14th or 15th amendment. The Supreme Court rejected the claim, saying in order to prove this system was unconstitutional under the protection clause of the 16th amendment, you have to show racially discriminatory intent. You have adopted the system in order to suppress the minority vote. The plaintiffs lost because they could not show the atlarge system had discriminatory methods, it was adopted for other reasons. In response to this, congress enacted the 1982 amendment to section two of the Voting Rights act, creating a new results test. This allowed for a cause of action to get around the city of mobile. You would no longer need to show racially discriminatory intent. Nationally just in those jurisdictions. In section five you would not in a change of voter rolls to begin voter rolls to begin. Results, this is a little more representative of the city. As the judge told us, in thornburgh versus jingle, it allowed these cases to go forward. With the totality, the determination was the plaintiffs won a number of these cases. ,ith thethe Voting Rights act especially section two, appeared ofbe in the creation minority districts. The good elect representatives of their choice. Following that, the department of justice which had supervision over the section fighters actions aggressively required more and more of these majority minority districts. Once they were drawn, they could not be removed, otherwise there would be a threat the department approvale would hold and would make things worse. Cause the unholy alliance between black democrats and what republicans to create safe, but shorting minority districts. With overall plans that favored by republicans. Response to the department of justice pushing for a bunch of these majority districts and holding clearance approval, the those drawnt said the lines drawing the lines had gone too far. They had taken race into account too much and drawing district lines. This was not a claim of voter dilution, it was a claim of something else. It sent a message that voters were being separated basis based on race. I dont know if you can see on the map, there is a very thin pink district in the middle. , the northtrict 12 Carolina Congressional district, it was described as being so narrow that if you opened your car door and drove down i85 you would kill most of the people in the district. [laughter] the print Supreme Court said if you draw these lines, you are violating the constitution. Regardless if it was diligently ones vote. It puts the district and interesting position, they had to take race into account because the voter act require them to grade if they take it too much into account, it was a gerrymandering issue. They had to get it just right. That thee defenses states came up with pretty early on was, race was not the predominant factor, it was all about party. We drew these lines to help democrats. That was the defenseman carolina gave in one of these cases, the fourth out of the six time of Supreme Court has looked at Congressional District 12 and the last 18 years. With the court said in the case, basically when you have a case like this you have to figure out if race are part or politics dominates. This creates even more pressure on the state to get even people as me, how can i avoid litigation redistricting, my answer is you cannot. There is no way you can avoid being sued. Is surprising, these gerrymandering cases disappeared after the mid1990s. The Justice Department became less aggressive, and part people learned if they are avoided drawing beja bizarre shaped districts they were likely to win. In the 2010 round of redistricting, these cases came back. Broughtecause they were by conservatives who are trying to get a more colorblind system. They were opposed by democrats who claimed there was no harm when these lines were drawn and there was no basis. Redistricting,f republican legislators in alabama, virginia, and North Carolina after district lines to help republicans i shoving reliable africanamerican voters in smaller number districts. They said the voter rights act made them do it. We had to comply. Dilute the vote of africanamericans to be a violation of the voter rights at. Democrats said they took race into account, you have engaged in racial gerrymandering. I remember when Justice Scalia said shouldnt you look at the other side. This a junior far city voter dilution claim. In any event, the Supreme Court found a republican legislator engage in racial gerrymandering and they were using the voter rights act as a pretext. Race and party were overlapping, the recent africanamericans are being shoved in smaller districts is because they were reliable democratic voters. Is that racial gerrymandering, is that Racial Discrimination, is that just normal politics . These cases kept coming up. In response, republicans cap looking for ways to avoid creating racial gerrymander. What happened in North Carolina toer their dishes were found be a racial gerrymander, they said they will draw skymobi will not look at any racial data. The representative in charge of the redistricting made the statement. I diagnosis will be a political gerrymander, we will use political data, it is to gain arson advantage, i am making clear our intention to use this data is to have an advantage. What sounds like it should be a indication of liability is the defense. It is all about party, it has nothing to do with the race of these people. That was the defense. With the court had been doing fitthese cases was saying it into one box or another great if it looks like it is too much race it is not good. This issue of choosing race or voteralso comes up and rights act cases. For example, out of the fifth circuit come United States court of appeals in texas can it be voter dilution under the jingle when you have 30 or 40 of white voters voting for democrats in dallas . Is that enough polarized voting or is it just about politics . If you look at the numbers, you and dallas,exas africanamericans vote for the Democratic Party, in texas about 60 of whites vote republicans with the rest voting for the. How much is too much . More africanamericans voted for democrats than like sony for the Republican Party, where is that line going to be . Figure out if it is about race or party and the south is a difficult question clear indication where that line will be drawn. This came up was recently in texas motor id walk voter id law. The Fifth District struck it down, it went to the entire Fifth District here in the case. They sent the case back, the judge then found it to be a violation of the voter rights act. When it was up before the entire fifth circuit, one of the more conservative judges on the panel about politics. It has nothing to do with race. Politics,flects party not racism, and the majority of this court, in their hearts, know this. It is race or party, it is not both. With the race or party approach, it is completely nonsensical given polarization. It can lead to arbitrary results. One judge considers racism, another considers partisanship. Can you determine the predominant factor in a place like North Carolina when 90 of africanamerican voters are voting for the Democratic Party . This will threaten the voter rights act itself did as race and party overlap they say it is all about race. I said there were three approaches, the second is treating race as a proxy for party. Certificate the fit fifth circuit said these two things are not separate. Turning to the case the judge told us about your the end of his talk, North Carolina versus the naacp, this was a case where the carolina pass the greatest set of voter restrictions since the 1965 Voting Rights act. The part of the judge did not quote, the Fourth Circuit court of appeals said that the law targeted africanamerican voters with almost surgical precision. Not article threejudge, i can say anything i want. You wont be after that. [laughter] when senator mcconnell condemned the on the floor the senate, i knew my time was up. With the Fourth Circuit what the Fourth Circuit said, using race as a proxy for party was still Racial Discrimination, in violation of the 14th amendment. Here is the operative language. The General Assembly did so by who were voters unlikely to vote for the majority party. Partisanf done for the ends, that constituted Racial Discrimination. It was a very different approach. If you are making decisions to party, that is Racial Discrimination and unconstitutional. A very different approach. In the most recent of these gerrymandering cases, the case i talked about that went to the Supreme Court, there was a very interesting fight upgrade there were four liberals and justice thomas. Justice kagan wrote an opinion that said North Carolina drawing was racial gerrymandering, she had a very provocative footnote. She said the sorting of voters on grounds of their race remain suspect even if race is meant to ,unction as a proxy for other including political characteristics. Maybe, it is in a footnote. This looked like a movement. This looked like it is subversive of the very activity what the court is trying to do with racial gerrymandering cases. This seems to suggest in the American South with our polarization it is the same thing. Let me give you one more example of a case out of texas, it is a said in a city outside of houston. After the Shelby County decision, after free class was ,estroyed by the Supreme Court they moved from having district elections to having atlarge elections. The reason for this was, no mystery, it was because of the rising latino population. Wereayor and others involved sending out mailers trying to convince people to vote for the change in how the City Council Members were going to be elected. The mayor directed the election of officials not to send out taylors to people with hispanic names. Scott, a worker care testified and said when he pulled out the hispanic names, he asked them to pull out the names of democratic voters. Said hispanic,he he said he did not know. Then he testified hispanics was a proxy for democratic voters. Race or party . It does not seem at these are discrete categories. I think it is a great improvement over the race or party approach, it does not require a false choice between one or the other. Theunctionally recognizes race and party separation. It makes it hard to draw legitimate distinctions between normal politics and something that draws the line into Racial Discrimination. As one of the lower judges in said, i wouldurt say that is a different kind of theory. It may also lead to southern exceptionalism. Be, the same strict voter id law is unconstitutional in North Carolina because of the large concentration of africanamerican voters but legal in wisconsin . Voters inerican wisconsin overly overwhelmingly vote for the Democratic Party but they only make up 6 of the population, there are many more white voters. The same law is unconstitutional in one part of the country as opposed to the other. There is the history of free clarence where some states were singled out. The third of approach to the problem of the polarization is the party all the time approach. More of these cases should be decided, not on the basis of arguing instead partisanship and making these decisions about our voting rolls should be illegal or unconstitutional. The Supreme Court is currently hearing a case called gill versus whitford. The question is, is the court going to start policing partisan gerrymandering directly . I told you about the common for partisan advantage. An exhibit is 50 democrat and 50 republican, he drew 10 of the 13 districts to favor republicans. His answer was, i couldnt figure out how to draw and 11th. 11th,. If the Supreme Court decides not to draw this case, i expect we will see more states same they can do whatever they want. Maybe the way to deal with this in places like wisconsin and North Carolina, is to police partisanship directly. The same thing with voter id passedhy they are being by republican legislators to give advantages in the states. There is not good evidence these prevent any appreciable amount of fraud or improve voter confidence. Why not say if a state passes a law that burdens voters for no good reason, that law should be found to be unconstitutional. The station have a legitimate reason, having voters on the basis of party should be unconstitutional. This is a alternative way to deal with this problem, it would alleviate the courts from having to decide, in a metaphysical question, if race dominates over party. About cases where race really is more important than party . Rhode island is the only democratic leading state that has passed a voter id law. Warringot motivated by republicans and thinking this could help them. This is hispanic democrats taking seats over white democrats. It is not as though this will solve all the problems. It also get the course further into the political thicket. We dont know what the standards will be. Are exacerbated by an increasing partisan divide among the judiciary. Case,at North Carolina the federal judge that issued a response, it was 485 pages. , then a white republican circuit, the fourth three democrats, two of which were africanamerican judges read the case goes to the Supreme Court on a emergency basis. Maybe we look at guards more involved in the political thicket, maybe they cant handle that. Justice roberts said, may be is unseemly for the judges to be getting involved. I think this argument has come 60 years too late. There certainly is a problem if who this case is assigned to and have a good idea what that judges are going to do. Those are the three cases i mentioned, race or party. As a proxy for party, or party all the time. The me suggest where we are likely to go is none of those. We are likely to go to know policing. The victor goes the spoils approach. As Justice Kennedy gets ready to retire, the Supreme Court further moving to the right. The court is likely not to want to police either political discrimination or Racial Discrimination. The court could decide strict voter id laws do not violate constitutional provisions. It is not likely to strike down section two of the voter rights act. They have artie been doing death by 1000 cuts. Looking at ways to make it harder and harder for the plaintiffs to win their cases. The way they may solve the problem is if you have political power you can use it to full extent. On that happy note, i think i am done. [applause] we have time for some questions. This is a question for you, maybe two questions. Southern exceptionalism being problematic, the usual ruling is you dont do things for a list of motives. It is not unusual for one place to have it unconstitutional. Immigrated not want swimming pools, if you shut your swimming pools and some Northern City that is ok. Is howndering why it america have different roles in different places. The other question is about political gerrymandering, scalia the rule of is a law of rules. Situation where we should get involved with political gerrymandering. Do you think the reason they hold that position is because political situation gerrymandery benefits republicans . If this was a different era, i remember when i was a lot younger, gerrymandering was when you thought it was what democrats did in california. Event then the conservative justices thought that was a political question. Do you think it is there to say the reason they dont care about it is because they dont care about republicans or is there some notion that there is no way to manage this with april, otherwise it is a nonjustice question . When jackson poster voter id laws, neither had the law to prevent fraud or voter confidence. They both had a bad motive. Both of them are trying to stay in power. Are trying tohey stay in power, they are mostly all white. In North Carolina, they are not. Motive butd different results, that is going to be a closer case than an innocent motive. It is somewhat problematic. The party all the time approach yous with that by saying cannot adopt this for partisan reasons. We dont have to look at the racial question. His lust forapt partisan reasons, we have some problems. The justiceson of motivated by their partisan politics . I certainly dont think so. I dont think Justice Scalias opinion in a 2004 case refusing to regulate the partisan gerrymandering in pennsylvania on this basis, it is true there has been a long history in other statesd where democrats have gerrymandered. Democrats control more state legislators. I think there was a concern about where that line is. Senseings have changed since 2004, technology has changed. For anow possible gerrymandered to be drawn that is durable for an entire decade. Slicee no longer going to the baloney too thin. People voted for democratic legislators but the republicans controlled the state legislator truck the decade. One thing that has changed is technology. You can gerrymandered more effectively, you can also measure the effects of gerrymandering more effectively. One of the things they come up within the oral arguments, there are many more reasons to determine what gerrymandering is. All of them went in the same direction that wisconsin is an extreme outlier. The other is, Justice Kennedy is going to leave the court in the next year or so. He knows this is his last opportunity. In the 2004 case, the court is divided. Justice scalia said there was no standard, for liberal justices said there was a bunch of standards like a beauty pageant. Justice kennedy set in the middle, he said i agree what the conservative say but all the standards of the liberals are unmanageable. He said i think we should keep the door open. Bring me more cases. Talk to me about the First Amendment rights. Talk to me about history rate for the last 13 years that is what plaintiffs have been doing. I think Justice Kennedy knows this is the last best chance. I dont think he is looking at it through a partisan lens based on his question on oral arguments. I dont live that is running any of the justices. My question will be to both a you, judge unless you have view for the appellate bench, i would like an answer. Would i was also at the Supreme Court for the oral arguments. What i found interesting was as the attorneys for wisconsin or been peppered with questions, basically their response was if you can stop us please do so, we are not going to stop ourselves. That is basically the response, conservativese goes the spoils, even if you dont get the highest number of those great coaches see a problem with that . They would respond, no, gerrymandering has been around a long time. If you dont stop us we will kill again. At this point, we are looking at the courts ability to enter into. He fray in the three categories you have come up with, what the court asked for was, tell us from the other side, what type of argument what type of standard do you want the court to create that would be applicable and the ongoing situation that would not just be for the state of wisconsin . What standard do you think the court should use . So you do have higher ambitions . Judge no. There was a point where Justice Breyer set out a four point test. He said there are four things to look at. Casebook coauthors came up with a new measure called the efficiency cap to try and measure partisan asymmetry. That Justice Roberts calls sociopolitical gobbly gook. Here is a fourpart test. Is it a oneparty state . This would illuminate any places where there is a Democratic State that is ruled by one party. Second, is there bad intent, this would be shown by coming up with a bunch of plans. What the comply with state was supposed to do . Can you make your district andow the county boundaries not achieve such a onesided approach. Know that every standard that has been measured in partisan gerrymandering comes with an extreme outlier. Standard was justification. Justification, did you have a reason for doing this that was not for her partisan voting, like you are trying to comply with the voter rights act. I cannot myself have been ample i, myself have been this is been a problem. I think we are reaching that point, in part because gerrymandering has gotten so efficient. If the court actually does this. We would be out of the business of racial gerrymandering, because of this overlap. Things that may not be racial german would be political gerrymandering. Hello there, this question is more for the professor. I have been hearing online there has been a movement by people in the field of geometry at math petitions try and address gerrymandering. I wondered what you thought about that, if this seems like a meaningful solution . There have been mathematicians and times this is scientist who have been dealing with this. She is using supercomputers to do millions of simulations. They are drawing district lines, how many ways can you draw district lines that come i was state law that dont give a huge advantage should one party or the other. I think that is promising as a matter of social science. If you are Justice Kennedy and say you are leaving the court and the next year or two, how do you write a standard in science is going to change . Be useful forto future generations, it is not going to be reversed by neil gorsuch the second he retires. The are probably 10 years away is what they say technologically. There are people who have done simulations. Social there were , nottists in the gill case one favored wisconsin. That is surprising. Oklahomal scientist of who helped wisconsin create the software that they later used to briefander, he filed a who is the leader in this area for a long time. They basically said, you have to do something about this problem, technology has made it so easy to create a durable gerrymander in a way that was not true in 2004. Questions any more questions . A large swath of the political system is broken because of extraordinary polarization, part of lerrymandering plays a rol in politicians do not have to compete except in the primary. We have these partisan primaries, california seem to find a way around that by having a partisan primaries so that candidates have a sense to run to the middle. Unlimited money and politics also plays to the extremes for people who are contributing are not generally in the middle of the political spectrum. They have extreme views. It seems there is something the Supreme Court could do about a lot of that. The court could get involved in partisan gerrymandering, the courts created a love of the problem of Unlimited Money and politics historically the court seem to think that was a good money for being involved. When the Supreme Court struck down legislators, they were the constitutional law that justify that. Legislators were not fixing the problem so they would do it. Africanamericans disfranchised in the south and the political system was not working. Puzzling why the court does not seem interested in fixing the problem. Is there an explanation for that . Is it because one set of justices do not see it as a problem . Although money in politics is something they have exacerbated. Resume of way they dont really is thereas a problem, some good explanation for why the court does not play a more aggressive role in fixing this problem . Was approvedy who by 100 of the senate, i reject the basic premise that the system is broken. Can find many articles for justices who reject that premise. One decision that turned on the spigot,l spaghetti Citizens United was an inevitable outcome of the equation of money and speech that occurred. If memory serves, it was divided in 19 decided in 1976. , as is a slowmoving process slowmoving train wreck in the impact of money and politics. Others may say it is something political fathers and mothers have to address. I mention chief justice tawny and dread scott, it is important as amind all of us professor pointed out last night, you should be careful what you wish for in terms of asking of judges. In the most politically charged questions of the day. Ability ofis the congress to extend or not extend , as the to end slavery Supreme Court to determine working rules. The ability of the Supreme Court to deal with new deal legislation. These are questions that in the fullness of time, most legal historians come to the view that Supreme Court justices and court of appeal justices, while we may have many strength, we really judges whoto have are appointed for good behavior. In the modern world, that means life. Toont have the strength abide by those current police, you are stuck with us. The question is, do you really want to have unelected judges making those decisions . A political about view but, president eisenhowers said heer eisenhower mentioned brown. For good, when he was governor and california, it was earl warren who facilitated the locking up of japaneseamerican citizens in concentration camps to advance his political career, big number for the bis presidency. We all know how that worked out. , i lovecaution people , there institutionally position to make these decisions. Wanten say to people, you to give judges that power, the is on the side of the judges. Aybe you dont want to do that maybe the answer, forgive me for being pollyannas, you want to have two Political Parties that appeal to all citizens of all races so that you take the racial dimension out of the gerrymander situation. It was a time, i remember, i was born in 1950 when older people refer to the Republican Party as the already of lincoln. I was born in harlem, there was a love of people a lot of difficult tode it make the shift. That is why they invited me here, they knew i would slip into the street you may want to rethink that. I think it can be dangerous, once you get give article three judges power. They will use it. You may not like what we do with it. Good luck in red of an elected official after that. That is my talk about that. I think we have already given these judges power. For example, in campaignfinance, voters have passed initiatives and keeping money out of politics. The courts of stop that. I think the problem is buckwheat more than citizen units. I have a whole book on this that limited money and politics promotes measurable quality. That is what got extended in Citizens United. I think there is a relatively new phenomenon that is troubling and the course. Political reform has become a partisan issue. It used to be, there were campaignfinance reformers on the republican side, there were people who oppose gerrymandering on both sides. There is still some. Not many. Reform of the Electoral College has become a political issue. It gets reflected and the courts. The way it gets reflected it is not the judges are voting their party. They are not enough in a political way, it is chosen they chosen for their political ideology. All of the conservative judges were chosen by another. It is not going to be too long before people start referring to the republican Supreme Court. That the democratic minority thinks that, i dont think that is good for the role of a. The polarization that we have seen in our society has now caught up with the Supreme Court. If technology, some were from the electorate this has an independent process of redistricting and three reapportionment , would the outcome be so shockingly different to what we look like now, with the map i am thinking congressional at outcoment, with the risible nothing that we have ever seen in so many different if it did take final approval from some political body, theyicial would reject it as being too radically disruptive . Even though it would be the fairer map. I do think it makes sense, i have an institutional view that you dont want judges doing that. If you are talking about an independent commission, california has something along those lines. Something that could be worked out in the political korea arena. About judgescerned doing something that they are not tested do under article three of the constitution. That makes me uneasy. Had,i put on my historical it is much as the Supreme Court but the trial courts, the courts of appeals very on these things. Task tod turn over this judges. The task ends up getting from to judges. Ends up getting thrown to judges fairly often. It is not a radical change in california. Dozentudies have said a is that legislative or congressional . Congressional, it could affect the control of the state legislator and wisconsin. It could affect the majority control of the North CarolinaGeneral Assembly. When you have a super majority you can do a lot more. It would affect politics in some places in some ways. I am sure it would have some other unintended consequences. In the details. It depends on how this is implemented. If they kill case comes out this way, the courts would come in, whatever the standard is going to be, it is going to take years of litigation to find out how it is going to be like in 1962. It is not until 1970 when we get a sense of how it will work. I and just remembering the days when i was covering mississippi, i was based there and write Johnson Frank johnson was bringing up this, you knew where it would go. Charles morgan would get involved. Crude rudimentary location of people, four bodies were carving districts. I am just hearing this about , note who are mathematical just people, but machines. To see bring in drones what lines are broken. If that detached scientific was notical calculation as shocking as we may have expected, i wonder if that would offer some diagram for many to go to . My only observation is, i think there is something going on with facebook that make a every may give everybody pause. That is something to think about. [applause] interested in American History tv, visit our website on cspan. Org history. You can view our tv schedule, view our upcoming programs and lecturese,g American History tv. On cspan. Org history. This weekend on american artifacts we see featured in a new diplomacy museum. In washington dc. Scheduled to open the 2019, here is a review preview. Every Good Government job has a handbook, right . Residentalled a officer handbook. Unique class of newly minted Foreign Service officers in 1950. They goass of officers, off to various parts of the world, this class was unique. They all went to the same place in 1950. They all went to germany. Why would theyll go to germany in 1950 . There was world war ii. What we are looking at is diplomatic efforts to germany because of the political instability in germany. The competing forces between communism and democracy, these officers were very specifically trained by using this handbook in a way to promote the american benefit ofalso the having a democratic government instead of adopting a communist government. These officers were quite aware, by their own personal example they were representing america. They were constructed quite clearly that constructed quite clearly, not necessarily to behave yourself but toamerica. Recognize people are watching you. You are an american. The handbook does go into some programsout different that they were supposed to implement, as well as the more bureaucratic parts of their job. Here and the table of contents, the handbook covers things like citizen part two participation. Other things like religious affairs, community councils, in addition there were programs for education, refugees, and other sort of finance programs. Think about the state on the ground, you were just at war with this country, this is a country you want to maintain a bilateralg relationship with great you want to establish an economic relationship with. This book is designed to help them. Center begancy back in the year 2000, since then, the program has really grown. There is a private foundation that has been raising money, garnering support, on the state department side the office came into being. The collection has come into being. We are moving forward and partnership with the foundation exhibitions and Public Programs for the future of the museum, continuing to collect artifacts. We are looking forward to opening for the public in a few years. Sundayh the entire tour on american artifacts. In light of recent antigovernment protests in iran and tense relations between the u. S. And iran, reel america takes a journey back to 1963, when the u. S. Had close ties between iranian government and military. Iran is a u. S. Army program from its big picture series. It follows an army advisor through fort bragg training persian Language School in , california, and twoyear assignment in iran. Helping to create a special forces there. The cold war goal was to combat communist guerrillas fighting in iran. This is about 30 minutes