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Supreme Court Rules On Partisan Gerrymandering Case. Aired 10- 10:30a ET

Aired June 27, 2019 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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POPPY HARLOW, CNN NEWSROOM: All right. Top of the hour at 10:00 A.M. Eastern, 7:00 A.M. Pacific. I'm Poppy Harlow. Jim Sciutto is on assignment. He will join us from the G20 tomorrow morning.

But at any moment, crucial decisions are coming from the Supreme Court. The high court is set to hand down major rulings on the Trump administration's plan to add a citizenship question to the 2020 census and another big one coming on partisan gerrymandering.

Let's go to the Supreme Court. My colleague, Jessica Schneider, is outside. Good morning. This is the final day. This is a big day. Let's begin with the census decision.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes. You know, Poppy, notably, this is the final day of the first term with a solid conservative five-four majority. And like you said, we're waiting for some huge cases with huge political implications.

Notably, first and foremost, the question of whether the Trump administration can add a citizenship question to the 2020 census, and, really, time is ticking here, census officials have said that they need to get started on the printing process for the 2020 census by July 1st. That's within just a matter of days.

And the Supreme Court heard these arguments in April. And at the time, the conservative justices really seem to lean toward allowing this question. They said that it was well within the Commerce Secretary, Wilbur Ross', right to include this question.

But since then, there has been a lot of evidence that has come out particularly by the ACLU that they presented in a different court, they say that they found evidence that there were political motivations behind adding this question.

And while this is all being decided at the Supreme Court, we could know within minutes, there is also another case that's playing out in Maryland. A judge there has been asked to issue an injunction on this question by tomorrow. So that could be playing out in another court depending on what the Supreme Court does here. So a lot of hot political topics, and what's interesting, Poppy, is just a few weeks ago, Justice Ruth Bader Ginsburg gave a speech. And she said that she expects that we will see closely divided opinions on these closely watched cases.

So that is exactly what we could see here for weeks. We've been on edge waiting for these big cases. Now, the moment is here and we wait and see.

HARLOW: They are coming today in this hour. We know that. Jess, before you go, the Supreme Court until now has never truly defined partisan gerrymandering, what is too far. They've never drawn that line. Today, we expect that they will?

SCHNEIDER: It's possible. Well, you know, a lot of proponents would like the Supreme Court to establish a test as to when politicians go too far in drawing these congressional and state district lines for political gain.

It's possible that the Supreme Court will finally issue this test but it's a very difficult test to establish. The Supreme Court may, in fact, dodge it and issue a decision on different grounds. It all remains to be seen.

There's really a lot of ways that these cases, the census case, the partisan gerrymandering case, a lot of different ways that these could go. So we're waiting and we will see in just a few minutes.

HARLOW: We will let you hop on that call, find out, come back to us. Jessica, thank you very much.

As we await these decisions, let's bring in our experts, our Chief Legal Analysts, Jeffrey Toobin, is with me this morning, the President of the Constitutional Accountability Center, Elizabeth Wydra, joins me, and CNN Senior Political Analyst Ron Brownstein. Good morning to you all. This is the day.

Jeffrey Toobin, let's begin with census. It has huge implications for everyone in terms of where money goes in districts, how maps are drawn, how you're represented in Congress. For anyone watching or listening, this matters to you. And the central question here about what, you know, can be done according to the Congress clause of the constitution. Also comes to the issue of Motivation, Jeff, right, was there a political motivation to add this or not?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, there are different ways the court could look at this. I mean, the narrow way is did the Trump administration follow the appropriate procedures in adding the citizenship question. The court could simply deal with it that way. The larger question is, is it a violation of the constitution to ask this question for a political motivation? Because, I mean, look, everyone should understand the backdrop to this whole issue.

What the plaintiffs have claimed and what there seems to be a considerable amount of evidence for is that the Commerce Department, the Trump administration, added the question about citizenship so people of color, especially Spanish-speaking people, will not answer the census. They will be afraid of being harassed, they will be afraid of immigration enforcement.

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They simply will avoid being named in the census.

If people of color who tend to be more democratic, don't answer the census, those districts will be less represented in the Congress and the state legislatures. They will get less money from the federal government. That's the political backdrop to this.

HARLOW: And, Jeffrey, I want you to continue on that, but I would just add to it, right? We know because I believe it was six different census officials warned that by asking this, it would jeopardize the count.

TOOBIN: Right. The question is, is that a bug or a feature? Is the reason they added the citizenship question to get fewer Spanish- speaking people named or is that an unfortunate side effect? That's one of the issues the court might address.

HARLOW: Okay. So to you, Elizabeth, also here at the crux of all of this is whether or not the court is going to delay. The ACLU said either rule in our favor here, essentially, or delay until the fall. You've got this letter this week from the Solicitor General, Noel Francisco, saying the DOJ says this is a bunch of baloney, essentially, and we have to print this thing now.

ELIZABETH WYDRA, PRESIDENT, CONSTITUTIONAL ACCOUNTABILITY CENTER: Yes. You know, this is really a pressure cooker for Chief Justice Roberts and his court. We've seen Roberts try to make his court seem like it's not political, but he is finding himself right in the middle of this political issue. As Jeffrey just laid out, it is incredibly important for electoral representation and for electoral representation and also for communities to get these funds that go towards safe roads, schools, healthcare, et cetera.

And so what Roberts is going to be faced with is whether he just pretends that this administration did not engage in these shenanigans, which the lower courts said were unlawful, that the Secretary of Commerce, Wilbur Ross, did not act in good faith.

That's a big deal when you're talking about something as important as the census. It might sound boring but it is incredibly important to our democracy.

HARLOW: Wilbur Ross, the Commerce Secretary, has maintained, Ron Brownstein, that he has acted well within, you know, what he can and can't adhere to the census, but this is political as well, and that's your expertise on this.

We have the House Oversight Committee just recently finding Wilbur Ross and the Attorney General, Bill Barr, in contempt because they refuse to turn over documents to address some of these questions, to address the question about, you know, did this republican redistricting expert, Dr. Hofeller, in 2015, directly impact this, right? Was his research on this the motivation here, and that is the question.

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Right, absolutely. And, of course, we'd know more about Wilbur Ross' motivations if the Supreme Court had not blocked him from being required to give a deposition in the case.

Look, the evidence is very powerful here. I mean, this Commerce Secretary, you know, claimed for a long time that the Justice Department asked him to add the citizens question so it could better enforce the Voting Rights Act. In fact, the evidence is the opposite, that he solicited that request from the Justice Department, that he consulted with the hardest liners on immigration, like Kris Kobach and Steve Bannon, before adding the question.

I mean, for people who view the goal of, you know, who recognize Make America Great Again as an attempt to kind of restore an earlier America, this is, in some ways, the ultimate expression of that, because you're defining the growing diversity of the country out of existence. You're not counting it.

And to Elizabeth's point, this really is a critical moment for John Roberts. Because the one hand, he has said often, you know, we're not a political court, he doesn't want to be seen as a political court. But, in fact, on these issues that affect the underlying rules of the competition between the two parties, the Shelby County decision in 2013, Citizens United in 2010, the voter purge and Texas redistricting decisions last year, he has been repeatedly willing to engineer five- four party line rulings that benefit the interest of the Republican Party.

And this is perhaps the ultimate case of that, because this will affect not only the allocation of seats, as Jeffrey noted, within states but among the states and the reapportionment, places like California will lose representation and electoral college votes.

HARLOW: Just to jump in here very quickly, an Ruth Bader Ginsburg has warned about that division, potentially more five-four decisions to come at the end of this term. We'll see what these counts are.

Jeffrey Toobin, I've just learned that the Supreme Court has just issued the ruling on partisan gerrymandering. Of course, this is significant for a number of reasons, including the court has never settled on a standard or a test for what is partisan gerrymandering.

You've got two cases here. Toobin, as we wait for the ruling to come down, you've got the North Carolina case brought by the democrats and the Maryland case brought by the republicans. Explain to people what we're about to find out as we await the decision.

TOOBIN: Well, this is another case where the interest of the Republican Party in particular are at stake.

[10:10:02] Because especially after the 2010 census, when the republicans controlled states like Florida, Wisconsin, Ohio, Pennsylvania, which some of which they don't control anymore, they drew the lines so that republicans, even though they were very evenly divided in terms of overall voters, overwhelmingly controlled the state legislative districts.

And the question in this case, and we'll know the answer soon, is is that constitutional? Is it constitutional to draw district lines that dramatically advantage one party or the other? The Maryland case, the democrats did it. But the democrats don't control as many states as the republicans.

So the question which the court, as you point out, has never clearly resolved is, we know it's unlawful to discriminate on the basis of race in drawing district lines but is it constitutional to draw lines based on partisan affiliation? That's the issue in this case.

HARLOW: It's a First Amendment question, equal protection question. But, Jeffrey Toobin, they may not. The high court, right, they may not decide to finally set a standard or a test for that, right. They may punt it back and say, this is better decided by the political branches of government. Is that right?

TOOBIN: Well -- but that's a decision. If --

HARLOW: Fair enough.

TOOBIN: You know, if the court says, we're not getting involved, we're going to leave it to the legislature, the Legislators will continue partisan gerrymandering. So not deciding is deciding.

HARLOW: Elizabeth, to you, why should every American care about that the decision that is about to come down on this front, right, because it comes down to state legislatures, et cetera?

WYDRA: I mean, it is a basic American principle that the voters choose their elected representatives and not the other way around. And if the Supreme Court does not step in to say whether or not partisan gerrymandering is unconstitutional, then they are really turning a blind eye to that because we know that it happens. It happens on both sides.

But as Jeffrey said right now, it is definitely being used more by the Republican Party. And if -- as he said, if Chief Justice Roberts and his court decide not to decide, that is really going to help the fate of -- the future or fate Republican Party, as the demographics change.

You know, this goes hand in hand with the census case because we're seeing ways that the Republican Party is trying to change the system, so they can still stay ahead even with the changes in our country.

HARLOW: All right. Let me jump in, Jessica Schneider has the ruling for us. Jessica, what did the justices decide?

SCHNEIDER: Well, Poppy, this may be the exact example of what Justice Ruth Bader Ginsburg was referring to a few weeks ago when she said to expect closely divided decisions in closely watched cases. This is the case involving partisan gerrymandering. This was a five-four decision written by the Chief Justice, John Roberts. And it says that the courts have to stay out of these questions of whether maps are extremely partisan gerrymandering.

Basically, the court is saying here that the courts have no role to play and that means that all of these maps that challengers have said were partisan gerrymander, the politicians went too far in drawing these lines for strictly political gain, the court is saying, courts cannot rule on this, that this is strictly within the purview of Congress.

So it's quite a stark ruling here, five-four, all five conservative justices taking this stance. The courts have no role to play here. The issue here is that the Chief Justice writes in this majority opinion that this is strictly a political question, that the courts have no role in deciding whether or not politicians can draw these maps and how they can draw them.

Lower courts here have thrown out these maps. This was the case involving maps in North Carolina, as well as the congressional district in Maryland. And the lower courts, the federal judges, had thrown out these maps. They had established a new standard.

And the Supreme Court today going in the complete opposite direction, not establishing a standard and instead saying that the Supreme Court and any other court has no role to play. They cannot decide whether or not these maps that challengers accuse politicians of partisan gerrymandering, the courts cannot step in. They cannot decide.

And, really, this throws it back to Congress to make any determination as to whether or not any sort of standard should be set. But, really, the practical effect of this is that, now, it gives free reign to politicians who take control of state legislatures to draw the lines, how they see fit and any court challenge cannot be mounted because the Supreme Court is saying this is purely a political question and that the courts should not step in here, Poppy.

HARLOW: Jeffrey Toobin, that's exactly what you were just talking about.

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To punt it back to Congress is making a decision, this opinion written by the Chief Justice, John Roberts, who said just back in February, quote, people need to know that we are not doing politics. He has now decided there is no role for the courts in deciding how these maps are drawn. And, again, as Jessica said, right down the line there, the five conservative justices siding with Chief Justice John Roberts who wrote the majority opinion.

TOOBIN: Two points, one, a huge victory for the Republican Party here, because it's the republicans who control most of these states, who control Ohio, who control Florida, who will be redistricting following the 2020 census. And now, this is a green light to jam all the democrats into a handful of districts and put the republicans in control of all of the rest of them.

Second point, this is why, in very significant way, the country is so divided along partisan lines, that we we have now are state legislative districts and congressional districts where it's clear a democrat is going to win in some seats and it's clear a republican is going to win in the other. So that the only important election in those districts are the primaries, meaning, moderates need not apply, that you are going to get more conservative republicans and more liberal democrats in state legislatures and in the Houses of Congress.

This decision is a major contributor to the polarized political society in which we live and it's only going to get more polarized because of the green light that Chief Justice Roberts gave to state legislatures today.

HARLOW: This is the final word, Ron Brownstein. So a more divided America now going forward?

BROWNSTEIN: Absolutely. Look, this is what we're talking -- what I saw the night (ph) before. For all that John Roberts talks about, the court not wanting to seem political, when it comes to setting the rules of politics, he has repeatedly engineered these five-four with five republican appointed justices, not just conservatives, outvoting four democratic-appointee justices to set the rules of politics from Citizens United to Shelby County to this in a way that benefits republicans.

And it might go even further because there is a countervailing movement in the states up to 20 states now that have voted usually by ballot initiative to redistrict through an independent commission rather than letting the legislature draw these kinds of lines. And there was a case, as Jeffrey knows, a few years ago where John Roberts voted with three other republicans -- three other republican-appointed justices to invalidate the use of those independent commissions.

Since Anthony Kennedy voted with the democratic-appointed justices, the independent commissions, it was a case involving Arizona, were allowed to stand. But it's pretty clear that John Roberts, I think, would vote to eliminate that. And now with Brett Kavanaugh on the court, it's not clear that he will allow even those kind of independent commissions to draw the lines going forward since he voted the other way saying they were unconstitutional.

And, you know, because I think this ruling will spur that kind of reform or at least an effort of that kind of reform in more states. Because, as Jeff said, it is an absolute green light to states to be as aggressive as they want to be in redistricting and that is something the Republican Party employed to the max after the 2010 landslide that they had and the redistricting that followed.

HARLOW: Elizabeth, we heard a foreshadowing of a decision like this from Justice Ruth Bader Ginsburg just a few weeks ago, who compared what she called the huge importance of the census decision, which we'll get in just a few moments to the fight over the travel ban and talked about the concern over divisions like this, five-four divisions, saying given the number of most watched cases still unannounced, they cannot predict that the relatively low sharp divisions ratio will hold. And that's exactly what happened here.

WYDRA: Right. And, you know, it seems like a division ideologically but it also, I think, is a division in who has their head in the sand and who doesn't, you know, like we saw last year with the Muslim ban case. The conservative majority went forward as if this was any other presidential administration that President Trump did not have his Tweets saying that the Muslim ban was intended to attack Muslims.

And here, I think, we have first with this partisan gerrymandering decision. Justice Roberts, Chief Justice Roberts trying to make it seem like he's not doing politics, but in reality, he's absolutely doing politics, because, as we've just heard from both Ron and Jeffrey, this will only make polarization worse.

And, frankly, as a constitutional lawyer, I'm deeply disappointed that the court did not do its job in our constitutional system and apply the constitution of the law. You have these plaintiffs come into the court saying, our First Amendment rights are being violated, our equal protection rights are being violated because we're being marginalized based on our political affiliation being packed into these districts.

And the court basically denied their ability to come into the Supreme Court and have the constitution enforced.

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And that's the Supreme Court's job, and I don't think they did it in this case.

HARLOW: And, Jeffrey, I think you brought up a really salient and important point at the top there, and it's about the decision made previously on racial gerrymandering and what's allowed there versus political. So explain why the court decided one way in racial gerrymandering and this way on political.

TOOBIN: Well, the constitution, you know, says there can be no racial discrimination.

HARLOW: Right.

TOOBIN: But as Chief Justice Roberts points out, the constitution says nothing about political discrimination.

Now, the fact is, in the real world, since African-Americans are overwhelmingly democratic, the line between racial discrimination and political discrimination is almost impossible to draw. And democrats have been pointing out for years that, in fact, political discrimination often is racial discrimination.

But Chief Justice Roberts was not interested in that argument. He said, when democrats, you know, draw lines to benefit democrats and republicans draw district lines to benefit republicans, that's not the court's business. The constitution has nothing to say about that. That is simply a political question, not a legal question, and we're going to stay out of it. But the bright line that Chief Justice Roberts draws in this opinion between racial discrimination, which is illegal, and political discrimination, which is legal now, that line may not exist in the real world.

BROWNSTEIN: Well --

HARLOW: Go ahead.

BROWNSTEIN: Poppy.

HARLOW: Yes.

BROWNSTEIN: I'm going to say, last year -- first of all, last year in the Texas case, as Jeffrey knows, they narrowed the use of racial discrimination to challenge district lines. And the Abbott versus Perez, I think, was the name of the case.

And, of course, Shelby County, the landmark, probably one of the two or three most significant decisions of the Roberts court, eliminated the preclearance provisions of the Voting Rights Act, which was designed to prevent racial discrimination.

So it's not as though as if they are a bulwark against racial discrimination in electoral processes and are only kind of, you know, allowing partisan manipulation to go forward. On both fronts, they are rolling back the ability to constrain this kind of behavior. And it is a pretty consistent pattern.

I quoted someone in my story this morning noting that on these cases, you begin to get -- the evidence begins to accumulate that what the five republican justices on the court are doing is building a perpetual motion machine, releasing a series of rulings over a period of years that benefit the republican electoral prospects and thus make it more likely that it will be republicans taking the justices.

HARLOW: So to that question of, you know, what is unjust and just, Chief Justice Roberts just addressed that in his majority opinion. Let me read to you part of it as I go to my colleague, Jessica Schneider. Jess, this stands out, quote, excessive partisanship in districting leads to results that reasonably seem unjust, but the fact that such gerrymandering is incompatible with democratic principles, Arizona State legislature does not mean that the solution lies with the federal judiciary, saying it might seem unjust but we can't solve this.

SCHNEIDER: And that's exactly the holding in this opinion today. And he continues on to say, Poppy, and this is important in the opinion, saying, our conclusion does not condone excessive partisan gerrymandering nor does our conclusion condemn complaints about districting to echo and to avoid.

And then he goes on to talk about how the states are addressing this issue, how a number of commissions have been set up in the states to address this issue of redistricting and claims of extreme partisan gerrymandering. Sp the court saying here, we have to stay out of this. This isn't our lane. This is a political question. This should be handled by Congress, also by state legislatures who are in charge of drawing these lines. But, you know, Poppy, I mean, this is a sharply divided court right now and this really is the first major case that we've seen this break, five-four, this solidly conservative majority, and we're really feeling the effects of Justice Anthony Kennedy's retirement just one year ago.

Justice Kagan is on the bench right now reading her dissent forcefully. This is something that justices really only do. We've seen it more and more lately. But justices really only do when they have a very forceful dissent and when they're very passionate about their dissent.

I'll read you briefly what Justice Kagan is reading up on bench right now. She says, of all times to abandon the court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. And part of the court's role in that system is to defend its foundation.

So the four liberal justices here, Justice Kagan, reading from the bench right now, slamming this decision by Chief Justice Roberts and the four other conservative justices to stay out of this. But Justice Roberts, in his opinion, defending that decision, saying that this is not the role of the courts to decide this, and instead let this play out in the states that have already established commissions, in the state legislatures and perhaps even in Congress.

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Poppy?

HARLOW: Jessica Schneider, great reporting, thank you very, very much for that. And it sure says a lot that she is reading that dissent from the bench, as you know.

We are going to take a quick break. We'll be right back. We are awaiting the census decision from the high courts. Stay with us.

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