WE'RE GOING TO TACKLE ANOTHER OF LAST WEEK'S BIG U.S. SUPREME COURT DECISIONS.
WITH A 5-4 MAJORITY, THE COURT UPHELD THE VOTING RIGHTS ACT, A SURPRISE TO MANY OBSERVERS.
IN SHORT, THE COURT REJECTED THE THEORY THAT A STATE LEGISLATURE HAS THE FINAL SAY IN ELECTION LAW, KEEPING IN PLACE THE OVERSIGHT OF THE JUDICIAL BRANCH OF GOVERNMENT TO MAKE FINAL DECISIONS REGARDING REDISTRICTING AND THE REJECTED THEORY IN THE CASE, KNOWN IN LEGAL CIRCLES AS "INDEPENDENT LEGISLATURE THEORY," WAS A THE FOCUS OF A LAW REVIEW ARTICLE AUTHORED BY OUR NEXT GUEST, MITCHELL HAMLINE LAW PROFESSOR JASON MARISAM.
GOOD TO SEE YOU, PROFESSOR.
WELCOME.
>> THANKS, HAPPY TO BE HERE.
>> Cathy: LITTLE COMPLICATED THIS RULING IS.
AT ISSUE IS GERRYMANDERING OF CONGRESSIONAL DISTRICTS AND THE QUESTION IS THERE A ROLE FOR COURTS TO FIX THE PROBLEM, STATE COURTS SPECIFICALLY, RIGHT?
>> THAT'S RIGHT.
THEY CALL IT THE INDEPENDENT STATE LEGISLATURE THEORY AND IT'S REALLY ABOUT VOTING THE RIGHTS AND HOW MUCH PROTECTIONS WE GIVE TO VOTING RIGHTS.
NORMALLY WE HAVE DUAL PROTECTIONS, U.S. CONSTITUTION AND THE STATE'S CONSTITUTION.
WHAT THE INDEPENDENT LEGISLATURE THEORY SAID WAS, LOOK, WHEN IT COMES TO VOTING RIGHTS AT LEAST AS O FEDERAL ELECTIONS THE STATE CONSTITUTIONS DON'T APPLY.
YOU DON'T GET ANY OF THAT CONSTITUTIONAL PROTECTION THERE.
THE SUPREME COURT REJECTED THAT SORT OF EXTREME VERSION.
THERE'S A LOT OF UNCERTAINTY OF WHAT COMES NEXT BECAUSE THEY SAID, WELL, MAYBE STATE COURTS CAN GO TOO FAR IN THE STATE CONSTITUTIONS, WE'RE NOT GOING TO SAY HOW FAR IS TOO AR SO THERE'S GOING TO BE MORE LITIGATION IN THAT SPACE.
>> Eric: I WAS GOING TO SAY IT'S FUZZY ENOUGH I THINK THIS WILL BE A LAWYER HOLTY.
DON'T YOU THINK THERE WILL BE ACTION ON THAT?
>> ABSOLUTELY, THERE'S MORE LITIGATION TO COME, WE KNOW THE MOST EXTREME VERSION WAS REJECTED BUT DON'T KNOW MUCH BEYOND THAT.
>> Cathy: YOU WROTE THIS ARTICLE IN A LAW REVIEW THAT BECAME PART OF THE ARGUMENTS REALLY, PART OF THE BRIEFS.
WERE YOU SURPRISED BY THAT?
>> YEAH, ANYTIME YOU WRITE SOMETHING WITH PRACTICAL SIGNIFICANCE FROM AN CADEMIC PERSPECTIVE, IT WAS AN IDEA THAT I HAD IN MY HEAD FOR A WHILE, WAS ABLE TO GET THE ARTICLE OUT AT A TIME WHEN HE SUPREME COURT CASE WAS PENDING ON THE DOCKET SO SOME LITIGANTS AND AMICUS BRIEFS PICKED IT UP.
>> Cathy: WAS THIS SEED IN YOUR HEAD PART OF WHAT YOU DID IN THE AG'S OFFICE?
>> THAT'S RIGHT, SO IN 2020 I HAD THE HONOR OF REPRESENTING THE SECRETARY OF STATE IN A LOT OF THIS LITIGATION OVER HOW TO CONDUCT THAT PANDEMIC ELECTION AND OTHER THINGS, AND IN LITIGATING THAT, WE WERE INVOLVED WITH A LAWSUIT WHERE ELECTORSFOR PROXIMATE CAUSE TRUMP HAD SUED THE STATE AND THAT WAS THE FIRST IN THEIR BRIEFING THAT I SAW THIS THEORY BEING MENTIONED, AND I THOUGHT THAT'S INTERESTING, AND I TUCKED THAT IN THE BACK OF MY HEAD BECAUSE I HAD 48 HOURS TO GET A BRIEF AND ARGUE AT THE COURT OF APPEALS, BUT WHEN I MOVED TO MITCHELL HAMLINE, HAD TIME TO THINK ABOUT IT AND GOT THIS ARTICLE OUT.
>> Eric: IMPACT ON THE 202024 ELECTION?
>> IT CERTAINLY COULD, THE CASE WAS ABOUT CONGRESSIONAL DISTRICTS AND WHETHER STATE COURTS CAN SAY, LOOK, THE DISTRICTS YOU'VE DRAWN ARE PARTISAN GERRYMANDERED, THEY'RE NOT FAIR, FAVORING ONE POLITICAL PARTY TOO MUCH AND THE SUPREME COURT LEFT OPEN THE POSSIBILITY THAT STATE COURTS DO HAVE THAT POWER.
IF IT HAD GONE THE OTHER WAY, NEW YORK COULD HAVE COME OUT DIFFERENTLY, IT COULD HAVE AFFECTED OTHER STATES ND COULD HAVE HAD AN IMPACT ON HOW MINNESOTA DRAWS ITS DISTRICTS TOO.
>> Eric: LEGACY OF BUSH-GORE 2000, THAT'S BEEN MENTIONED AS COMPARISON OR PREDECESSOR TOTO THIS.
>> CHIEF JUSTICE REHNQUIST HAD A LINE BACK IN 2000 THAT PLANTED SEEDS FOR THIS THEORY.
AGAIN, STILL THERE'S GOING TO BE LITIGATION BUT THERE ARE ECHOS FROM BUSH-GO IN 20000 THERE.
>> IN MINNESOTA WE'VE HAD DIVIDED GOVERNMENT SO JUDGES DRAWING THE LINES.
THIS WOULDN'T HAVE MUCH OF AN IMPACT IN MINNESOTA >> YEAH, IT COULD HAVE BEEN A DISASTER FOR MINNESOTA BECAUSE IF THE COURT ACCEPTED THIS THEORY AND SAID THERE'S NO ROLE FOR COURTS, IT'S GOT TO BE THE LEGISLATURE.
WHAT DO YOU DO IF THE LEGISLATURE CAN'T AGREE WE HAVE DIED GOVERNMENT IN MINNESOTA SOMETIMES AND WE'VE HAD STAFF COME IN TO DRAW THE MAPS BECAUSE THE LEGISLATURE CAN'T ENACT A MAP AND IF THE COURT WOULD HAVE ACCEPTED THIS EXTREME THEORY THAT WOULD HAVE BEEN CALLED INTO QUESTION.
WE DODGED THAT O