What Really Happens Now That the Supreme Court Changed the Voting Laws (Transcript)

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What Really Happens Now That the Supreme Court Changed the Voting Laws

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I think this is so bad, so dishonest. He knows that no crime’s been committed. These liars are telling us that they’ve been investigating this >> [music] >> for 11 months. This is the biggest BS case I have ever seen from the Department of Justice, and I am so mad about it that I think that Todd Blanche should be disbarred. Yesterday was not a great day for me to have taken off, all right? I was literally on an airplane um when the Comey news happened, and I WAS LIKE, “OH, NO, I’M missing this story.”

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Um but obviously it is continuing uh today, and uh you know, I’m going to make the case that I think that Todd Blanche should be disbarred over this. I think this is so bad, so dishonest. He knows that no crime’s been committed. >> [snorts] >> But I’ll talk about that uh later in the show because I want to take your calls on that. But before we get there, there was a big Supreme Court ruling came down today that struck down uh Louisiana’s 2022 congressional map as [snorts]

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>> [clears throat] >> an unconstitutional racial gerrymander. Now, some of you may be saying, “Wait a sec. What are we allow all these gerrymanders?” Yeah. You you can gerrymander for political purposes. You can’t gerrymander based on race. And the court um held that this map, which actually tried to help African-Americans in Louisiana because there was only one black district and like a third of the state is black out of I think it’s out of six districts. Um and basically the

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the lower courts had ruled that the map with only one was made it so that uh that there was not proper representation of blacks in Louisiana. The Supreme Court looked at it from the opposite perspective to say, “Wait a sec. You guys are second-guessing the Louisiana legislature based on race.” And so the court in a 6-3 decision has effectively kind of, you know, raised the bar for challenges to uh election maps. Sarah Isgur joins us once again. Uh she is the um former spokesperson for the Department

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of Justice. She’s the editor of the SCOTUSblog, which covers the Supreme Court. And her new book, Last Branch Standing about the Supreme Court, is now number five on the New York Times best-seller list, so congratulations to you, Sarah, for that. Uh all right, first of all, um any uh any surprises in the Supreme Court decision, and what did you think of it? No, we were expecting a 6-3 decision after the oral arguments. Of course, this case has actually been held over a term. So this is like a 2-year case

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we’ve been waiting for. You know, if there was a surprise, this was perhaps a narrower decision than it might have been. There was some chance that people thought they would actually strike down Section 2 of the Voting Rights Act for violating the equal protection clause of the Constitution. Instead, Justice Alito writing for the majority said, “No, you can have Section 2 challenges to redistricting. However, you have to prove that race was the reason they drew the maps the way that they did uh rather

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than what it is now, which is basically, you know, showing that there needs to be something more like proportional representation, enforcing states to draw maps taking race into account. So in that sense, they flipped Section 2 on its head, but it is very much in line with the decisions we’ve seen from this court for 20 years, including in the affirmative action case, uh going all the way back to when Chief Justice John Roberts first said uh to the way to stop discrimination on the basis of race is

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to stop discriminating on the basis of race. And what will be the impact now? I mean, it seems unclear, right? What impact it’s going to have on the 26th of I mean, Louisiana, it seems pretty clear, right? It means that that Republicans will likely get an extra seat in Louisiana, right? Uh that’s right. You know, the funny thing about all of these gerrymanders, there was always a great argument that all of these were partisan gerrymanders. Once the Supreme Court said they were out of the business of monitoring

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partisan gerrymanders, all of a sudden a lot of people sort of dressed up partisan gerrymanders to try to argue that they were racial gerrymanders when in fact it was partisanship that correlated highly with race. Um you know, I think that there’s no question we will now see fewer of these cases successful. Whether it actually helps or hurts any given party is hard to say because in truth, Republicans, you know, were the ones who actually uh were sort of cracking and packing these districts. Democrats hated uh you know,

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the racial gerrymandering. So in some ways everyone like took off their hats and put on their alternative hats. Democrats wanted their voters to be more spread out. Republicans wanted to concentrate Democratic voters in very few districts. So the idea that this will somehow hurt the Democratic Party and help the Republican Party, I don’t think will be the political result of this. Wait, but how is that po- I mean, look, isn’t it the reality that it’s going to be primarily southern states

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that are going to now uh seek to um change gerrymander um uh their districts without the constraints that they had previously about sort of general equal representation um of minorities, and as a result, that will in effect pack in more, you know, black people who tend to be Democrats into more limited districts, which will hurt Democrats. Okay, so here’s how this was working, cracking and packing, right? It was the idea that you would put um you know, sort of drowned out the voters that you

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didn’t like by putting, you know, a few of them into each district, or you pack all the voters into a district. That’s what was happening before when they were being forced to take race into account. Now um that it will, you know, really just be these partisan gerrymanders, I don’t think it’s going to make much of a difference, and again, if anything, you could see slightly more competitive districts, which is what we’re seeing, for instance, in Texas and California and the Virginia maps. In order to

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squeeze out even more districts, they have to make them a little bit more competitive. So, you know, in a big wave election, these guys will actually lose the seats that they’re gerrymandering. Well, maybe, right? I mean, yeah, if it’s a if it’s a big wave election, yeah, there’s going to be that dummy mandering idea of basically, you know, you made these changes, you know, you had places where you had it safe, you made it too close, and there was a a big wave. But beyond that, you know, you are still this is going to

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open up way more possibilities for Republicans to gain seats than Democrats. I mean, again, for a moment ignoring the what seems to be the reality that you’re going to likely have a blue wave, but just it you know, you’re sort of attributing the idiocy of some of these gerrymanders, right? And you’re sort of baking that in and saying, “Well, you know, some of them are going to be so dumb that they’re going to gerrymander in a way that’s going to end up coming back to hurt them, so we don’t know.” But the

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reality is that this ruling undoubtedly sets the stage for Republicans to gain seats. Okay, so here’s Let me try to explain it this way. Before in Republican red states, they wanted they were forced to pack voters based on race into districts where those voters based on race could pick a representative of their race. >> Well, they weren’t forced to pack. That that they weren’t forced to pack. >> I’m putting it in overly simple terms to explain >> Well, I know, but but the problem is

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that what you’re suggesting is that what happened previously was that the system required that they pack together people, you know, BLACK PEOPLE INTO DISTRICTS. WELL, AGAIN, but the largely is is an important qualifier, right? Because they tend to They tend to live near each other. And so that was what the Supreme Court decision says is that you cannot put a voter into this district instead of this district because of the color of your skin. >> no, no, but you’re ignoring No, no, but

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but again, in Louisiana, you have a third of the pub- the third of the state is black. Yes. They had one district out of six that was black. It was majority black. Yes. >> Right. And now and and the previous rulings had said you need to add another one. A second district drawn so that it would be have a majority of black voters again. >> Packing black voters into a district so that they would be able to elect a black member of Congress. So what I’m trying to explain is or so they could have a

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better representation whether the person they elected is black or not. Yeah. >> Well, part of the actual legal test was whether they could elect someone from their community. And so what this will hurt is the number of black representatives in Congress from the south. That I totally agree with you. But whether it will hurt the number of Democrats in Congress is actually a different and more complicated question. >> Right, but it’s a complicated question because of the possibility of a blue

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wave. It’s not a complicated question if you take that out of the equation and you simply say we let’s assume we were in a situation where everything was 50/50. This definitely has the much more potential to help Republicans than help Democrats. In red states, in blue states it also helps Democrats. >> Well, in blue states it helps Democrats. How does it help Democrats? >> Basically blue states well, look at Virginia, right? Virginia draws its maps to turn up the partisanship to the

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maximum without having to worry about any other constraints on the gerrymander. So blue states will have disproportionate blue representation. Red states will have disproportionate red representation. >> right, but there wasn’t an allegation again in Virginia that they would they wouldn’t have lost this based on Article II. Meaning Virginia very well could lose uh based on the way that they did it, right? I mean I think that the fact that it wasn’t two separate legislatures and

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you know, there are all these like issues about how Virginia went about doing this that could be problematic. >> ignore those for a moment and >> Right. Right. They they weren’t going to lose this based on Article II. So what the Supreme Court has said today is that we’re not going to have districts from >> saying it doesn’t apply to Virginia. I’m I get that, but I’m saying it doesn’t apply to Virginia. What you’re doing is you’re sort of picking and choosing

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states where it doesn’t really apply. The bottom line is I think what you said about the south is accurate. There is no doubt that and this is primarily going to impact the south and it is primarily um going to set the stage for if done properly and they don’t mess it up and there isn’t too much of a blue wave that they set the stage for more Republicans to get elected, period. I mean again, and that doesn’t make it wrong. I’m just saying that that that that is the practical impact of this.

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Okay, I I think we’re agreeing weirdly while disagreeing. So what the Supreme Court has said is partisan gerrymandering is something the courts themselves will not get into. So you can partisan gerrymander. You cannot dress up a racial gerrymander that was actually a partisan gerrymander. So partisan gerrymandering which now includes even if it’s correlated along race, but you can’t prove that race had anything to do with it, that that’s still a partisan gerrymander. That’s what the states have already been

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doing, whether it’s Virginia or California or Texas. And so we will continue to see extreme stupid partisan gerrymandering and there just won’t be all of these lawsuits that claim that they’re racial gerrymanders when in fact they’re partisan gerrymanders. >> so here’s a Here’s a question. Here’s a practical question. This one I I actually I don’t know the answer to this. How many um southern states are currently acting or choosing their districts based in part on a court ruling that

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constrained them based on Article II? Do you know? So after 2020 Texas, Louisiana, Alabama and South Carolina all had these lawsuits. Yeah. At this point though, so Texas is already gerrymandered exactly how it wants to. Alabama’s got a little bit maybe there would be one more district there. Louisiana obviously just won their case. South Carolina won their case. So right now we’re talking about like one district in Alabama that might be different because of this ruling that wasn’t directly impacted by this ruling.

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Because again, the partisan gerrymandering in all of these states was being turned up. >> Right. Right. Right. Right. Um but that that All right, so Alabama’s the only one you’re saying is sort of ripe and Louisiana obviously um is sort of ripe for change as a result of this this ruling. >> we’re talking about one district in Louisiana and one district in Alabama. I got to tell you if I’m looking at these polls, that wave isn’t going to come down to one seat or two.

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>> Right. And so then you factor in the blue wave um which I’ve been sort of saying we should exclude for the purposes of this discussion, but yes, then you factor in the blue wave and you know, you can certainly make the case that And if anything, drawing more competitive districts in Texas is going to cost them seats in Texas. Well, that’s the dum- that’s the dummy gerrymander. I mean that’s the yeah, that’s the I’m looking at some of this internal polling in Texas and it’s worse

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than people are reporting in terms of how bad this could be in Texas because of what Donald Trump pressured them into doing. And and what are you seeing in terms of the internal polling? Uh they could lose a lot of the seats that they gerrymandered and right now if the election were held today, it looks like they lose a Senate seat, the first statewide race to go to a Democrat since 1994. It’s kind of hard to believe, right? I mean I’m a born and raised Texan. Like it’s been most of my life that it’s been

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a one party state. I’m all for more competition in all of these states. I think it makes for better laws. [clears throat] Yeah. And by the way, one of the great concerns I think that we all have about the extent of the gerrymandering that’s happened is it has led to um well, I should say even before before the gerrymandering was the lack of competitive districts, right? The fact that it’s just like whoever wins the primary wins and that lead that that leads us to extremism because the more

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extreme candidates tend to win a primary if they know that there’s not going to be a general election where they have to uh be competitive. Yeah, so it’d be great if all this partisan gerrymandering leads to more competitive districts on accident. Love it. Keep it up, guys. >> Um all right. So final question for Sarah is before we let her go and I take calls on Comey and beyond. Yeah, I am so about this Comey indictment and I’m I’m angry about it not for James Comey. I’m angry about it

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for the system. That we know that Donald Trump’s been putting pressure, right? But you know, when it came to I don’t know, like the mortgage case, right? With Letitia James. Yeah, I was open to the idea, hey, I don’t know, let’s see. Maybe you know, maybe she committed mortgage fraud. Let me let me dig in, etc. Um and and look, I think she had some pretty good I’m no fan of Letitia James, but I do think she had some some some real answers to that. But at least there was like a back and forth.

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These liars are telling us that they’ve been investigating this for 11 months. And there’s and Todd Blanche is out there saying, oh, you know, it’s it’s it’s difficult because you know, these investigations take time. It’s one photo and an interview that he did and I guess they could use interviews that he did in the media, all of which he denied that he even knew that the term 86 could mean kill. The dishonesty associated with that, the fact that there is no legal basis

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because it’s not even a threat. It’s a call to violence. If you want to believe 86 means kill, it’s not I’m going to do this, it’s 8647. Let’s get it. You have to then be specific. You then have to have some level of imminence or ability or desire to do it. This is the biggest BS case I have ever seen from the Department of Justice and I am so mad about it that I think that Todd Blanche should be disbarred. I’m guessing you won’t agree. I want more lawyers to be disbarred as a

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whole. I think we have a lot of people in the legal practice who steal money from their clients, like violate very clear rules that we have about the attorney relationship. So overall, more lawyers should be disbarred. I hate this case as much as or more than you do, but I think I hate it for a slightly different reason. I hate it because I don’t think they have any thoughts of winning this case. They put A PROSECUTOR WHO HE’S NOT. HE WAS SWORN in on Monday, Dan, as an AUSA. >> BECAUSE THEY CAN’T GET ANYONE TO BRING A

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BECAUSE THEY DON’T CARE. Because the point of this case is not to win it in court. They lose all these cases in court. The point is to chill the speech of their critics. That is deeply un-American. It’s against the First Amendment. They have binding Supreme Court precedent that is that this case is utter crap, right? There’s the guy from the Vietnam War and the second he, you know, joins, he says, I’ve got LBJ in my sights. That’s worse than this. It’s more specific, though the Supreme Court of

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course says not nearly specific enough. So they know it’s a bad case. They didn’t put a real prosecutor in to prosecute it. The point is to chill critics. That to me is far, far worse and that’s not a legal problem. That’s a political problem. That’s why you don’t vote people into office who have poor character, lack any sense of American values, lack a desire to uh you know, love the American Constitution in our 250th anniversary. So So I don’t think he should be disbarred.

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I think he should all be voted out of office because disbarring someone to me, I don’t want to have political wars over disbarment. You know, you put in a case that I don’t like, so I’m going to move to disbar you. You made this case and I don’t like you. If a if a judge uh agrees to sanction a lawyer, >> Yeah. Yeah. then I’m all for disbarment. And you know what? This case is has gone that far off. >> Right, I was going to say. So how let let’s assume that the court

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decides to sanction the government >> Oh, then I’m all for it. >> with it. You are. Okay. >> Yeah, then I’m in. I just want a neutral arbiter from an independent branch with life tenure to first say that this is beyond the pale of a reasonable legal filing. I don’t want that to be left up to political talking points and cable news segments. Okay, that’s fair. Um that’s fair. And look, and the judge in this case is a, you know, George Bush appointee. So, you know, should be Yeah,

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it’s not going to hopefully not be a radical. Um do you know anything about the judge? Not really, but my prediction with, you know, a little bit of knowledge is this gets thrown out, but there won’t be sanctions. Yeah. Um you know, [clears throat] all right. Uh Sarah Isgur has this new book out called Last Branch Standing, which is uh doing incredibly well, considering also um that when you’re writing about the Supreme Court, Supreme Court books don’t tend to hit the New York Times

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best-seller list. So, this shows you that she has figured out a way to uh send It’s It makes some interesting analysis that’s very accessible to people in this book. This is not even though she can be wonky, this book is not wonky. Um so, she’s got the best of both worlds going on for >> You bring out the wonk in me, Dan. >> Yes, yes. The best The The ability to be a wonk and the ability, you know, you can talk to the really smart people and also talk to people like me. Um Sarah

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Isgur, thank you so much for coming on the show. Appreciate it. Thanks, Dan.