(film reel clattering) - Welcome to today's national weekly Ethnic Media Services Zoom news briefing.

I'm Pilar Marrero, associate editor of Ethnic Media Services and your moderator for today.

[background music] Today's briefing focuses on how the Supreme Court Alabama decision impacts voting rights.

On May 8th, the United States Supreme Court surprised many observers when Judge Brett Kavanaugh joined Justice John Roberts and the progressive wing of the Court in ruling 5-4 that the Alabama congressional map violated Section 2 of the Voting Rights Act by diluting the votes of the state's Black residents.

The majority ruling also declined a request to water down Section 2 of the VRA, which bars election, in this case, redistricting practices that result in a denial or curtailment of the right to vote based on race.

The decision on Allen versus Milligan was seen as excellent news by voting rights advocates, especially after years of bad news from the courts in this area.

The case may impact a similar one pending in Louisiana, and at least 30 other redistricting lawsuits in 10 states.

Our panel includes legal experts and activists in the voting rights arena for voters of color and the main plaintiff in the Milligan case, Evan Milligan, and all of them will analyze the rippling effects of this critical decision in the future of voting rights.

Our speakers include- sorry!- Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund; Jacqueline De León, staff attorney at Native American Rights Fund; and Stuart Naifeh, manager of the redistricting project at the NAACP Legal Defense and Educational Fund.

And, without further ado, we're gonna play Thomas Saenz's video.

He couldn't be with us, so we prerecorded an interview.

Okay, welcome.

Welcome, Tom Saenz from the Mexican American Legal Defense and Educational Fund.

Can you go ahead and tell us the significance of this ruling and the potential impact you see?

- An unexpected decision in Allen versus Milligan is a tremendous victory for voting rights and specifically for the ability of people of color across the country to successfully challenge redistricting maps that have been adopted in states and localities around the nation.

It's an unexpected victory because the danger was that the conservative court majority would radically change the test that has been applied for almost 40 years, since 1986, in evaluating Section 2 of the Voting Rights Act challenges in redistricting.

At its most extreme, the State of Alabama had urged the court majority to conclude that, that established test under Section 2 be the-- the statute itself did not apply at all to redistricting challenges, but that most extreme argument as well as several others by Alabama that would've made it nearly impossible to prevail without "smoking gun", really unchallengeable evidence.

So, the outcome of the Allen versus Milligan case should be celebrated but it also has an immediate effect on pending cases like MALDEF's currently pending challenge to Texas redistricting, both congressional and state legislative level, still being determined in federal court.

By reaffirming the longstanding four-decade old test under Section 2 of the Voting Rights Act, the Supreme Court majority has ensured that these cases can move forward with a hope of demonstrating that the restriction on the ability in Texas, for example, and the ability of the Latino community to elect candidates of choice to Congress and to the state legislature is not restricted.

You have the ability after this decision to demonstrate a violation and force the creation of new Latino majority districts.

A decade ago, 10 years this month, when the Supreme Court majority struck down the coverage formula for the most powerful voting rights provision ever in federal law, a provision that required certain states and local jurisdictions, including the state of Texas to have their redistricting maps and other election-related changes by the Department of Justice or a district board in Washington DC.

That leaves Section 2 the provision involved in the Allen versus Milligan case as the primary, if not only legal protection.

These cases involve presentation by both sides of extensive evidence and testimony, including testimony on both sides of multiple expert witnesses.

That is why Section 2 must be supplemented by a vigorous pre-clearance program through the enactment of a new coverage formula.

There are also a threat despite this victory in Allen versus Milligan to Section 2 challenges, to voting rights violations in redistricting.

Legislative privilege is a generally applicable rule for all elected legislators engaged in policymaking, in redistricting because they are drawing their own districts in which they will face re-election and in some cases drawing a district for Congress, for example, where they hope to be in the future.

When you have that kind of evident conflict of interest it makes sense to have more transparency, more sunshine.

But, the legislative privilege doctrine blocks that kind of sunshine.

The state of Texas has so far successfully prevented access to evidence, important testimonial evidence and documentary evidence because of the doctrine of legislative privilege.

That is a looming threat.

It was not resolved by Allen versus Milligan.

So, in closing I reiterate this great victory is to be celebrated.

It makes it still possible to successfully challenge voting rights violations in the district but there are looming threats including the failure-to-date to reenact a coverage formula to apply pre-clearance to redistricting across the country and coverage jurisdictions.

And, second, I want to emphasize today because of its rule in Texas, the continued misapplication of legislative privilege to keep discussions confidential, out of court, out of evidence that could reveal the clear, intentional and, in effects, voting rights violations that occur in the redistricting process.

- I'm gonna move on to our next speaker and that is Jacqueline de León tackling ethnic media.

We'll love to hear from you about what the Milligan decision means for Native American voters who have fought for fair maps across Indian Country.

We understand that your organization, NARF, filed an amicus brief arguing for Section 2 of the VRA to be upheld.

Please talk to us about that.

- Thank you so much, and I apologize if my video goes off and on.

I think that my audio should be stable.

So, you know, thank you so much for having me and honored to be here among my fellow panelists.

My name is Jacqueline De León.

I'm a member of the Isleta Pueblo, a tribe in New Mexico and I lead the Voting Rights Practice group for the Native American Rights Fund, known as NARF.

NARF is the nation's largest and oldest nonprofit dedicated to advancing the rights of Native Americans.

At NARF, we all breathed a collective sigh of relief after Milligan!

A hearty thanks to everyone on this call especially Evan Milligan, who fought so hard to protect Section 2 of the Voting Rights Act.

Of course, as many have said, in Alabama this was a basic application of facts to law, and the law clearly established a violation.

Finding contrary would've been a radical move that I don't think any of us should have been conditioned to expect.

But, sadly, as we've talked about, given some of the last decade of jurisprudence from the Supreme Court, many of us thought that was probably going to happen.

The fact that it didn't, I think had much to do with the undeniable record built in that case.

I hope a small part of that was lifting up how Native American communities also continued to have their votes diluted through racial gerrymanders.

NARF submitted an amicus in Milligan that outlined contemporary instances of racial discrimination in Native communities providing lengthy examples out of South Dakota, North Dakota, and New Mexico combined with successful vote dilution cases brought in those states over the last decade.

We also talked specifically about how in the briefing in Milligan, plaintiffs tried to make it seem as if at-large districts, you know, the process of allocating seats based on the top vote getters was a tactic of the past that no longer existed.

For example, if a population is 40% Native and if that population could reasonably expect to win 2 out of 5 seats on the county commission.

Yet the method of at-large elections meant that the Native candidates were never chosen, and that all five seats ended up going to people in the white border towns adjacent to the Native American reservations.

That would violate the Voting Rights Act.

Plaintiffs attempted to say that such blatant gerrymanders don't exist anymore but we were able to provide numerous examples including the only voting rights case brought by the DOJ during the Trump administration involving at-large methods of elections used to dilute Native votes.

In that case, a school board used at-large voting systems to deny Native representation in Chamberlain, South Dakota.

And, indeed, South Dakota continues to be a hotbed of racial discrimination and vote dilution.

Unfortunately, racial discrimination exists in South Dakota.

I'm gonna bring up an individual case of racial discrimination because I think it's important to remember that there is a greater context to this fight for Section 2.

In just this past year in a hotel in South Dakota, the owner put a sign out front and banned Native Americans from staying in her hotel.

She turned away two Native American women who tried to book a room, and posted an armed guard in the lobby.

That is a reality of what can and does occur in South Dakota today.

Now, we've brought a successful vote dilution case in South Dakota just this past year.

In Lyman County, a different county than the example I just gave- I want to be clear; not saying that particular instance of discrimination occurred there- but, we brought a case where Section 2 was vitally important.

In that case, the county acknowledged that their plan, for county commissioner violated Section 2, which is huge.

Section 2's clear mandates made it so that we could start from a baseline that this voting scheme for county commissioner violated the law.

Now, at issue in that case was the county's refusal to implement a remedial plan for two years.

So, we had to sue to demand immediate implementation.

But, imagine how long that would have taken if the VRA did not exist.

They likely would have gotten away with not implementing the map, perhaps not even at all.

Now, we also have been very active in North Dakota.

There in Benson County, the DOJ had sued the county, again, for its at-large method of elections and a consent decree was entered into nearly a decade ago.

Yet Benson County returned to their at-large method again and was out of compliance for nearly 10 years.

And, we brought suit under Section 2 and again reached a consent decree, one that you can be assured we will be monitoring very closely.

And, also in North Dakota, we have also just finished trial this week.

We are waiting-- we were waiting with bated breath for Milligan because we were challenging the state's legislative map under Section 2.

There, Native voters were packed into districts that simultaneously packed a super majority of Turtle Mountain Band of Chippewa Indian citizens into a single House subdistrict, and cracks other Turtle Mountain citizens into House sub-districts, and Spirit Lake citizens into another House district.

Essentially, representation goes down from two possible House seats to just one.

Now under the new plan, the opportunity to elect candidates was reduced.

At the conclusion of this trial that just occurred this week, the federal judge in North Dakota reflected at what was stake.

Yesterday at the close, he said, "The issue of communication and responsiveness "of government at all levels to the tribes "has existed longer than any of us in here have lived, "and is going to exist longer than any of us in here exist.

And, it has to be addressed."

What he was saying is that currently in North Dakota the tribes have been cut out and that as a response resulted in unresponsive elected officials.

This has impacted the daily lives of Native Americans in North Dakota who are largely impoverished and lack basic infrastructure.

We are hopeful that this lack of representation will begin to be addressed in this case.

Thanks to Section 2, and thanks to all that have fought to preserve Section 2.

Thank you so much.

- Thank you.

Thank you, Jacqueline de León, for an excellent presentation.

We appreciate it.

We did get a question over email from KTNN online which is the "Voice of the Navajo Nation."

[reads] "Will this also affect the Navajo nation borders in states of New Mexico, Arizona, Utah, Colorado?"

- Absolutely.

There's an ongoing case, not our case, but another really important case out of San Juan County, New Mexico right now as to their unfair redistricting cases and that-- excuse me-- their unfair maps.

And, that case, you know, relies on Section 2.

And, you know, not only does it result in us bringing cases you know, it results in more compliance because there is you know, the risk of bringing cases; the threat of those cases is incredibly important.

So, it will affect all tribal representation and continue to.

- Thank you so much.

Thank you for that.

And, please stay around.

We'll have more questions for you.

So...and now, we are pleased to invite Stuart Naifeh.

Welcome.

We would like to hear from you about the impact of the case that was brought up and how it will affect all voters of color in Alabama and elsewhere.

- Stuart Naifeh from the Legal Defense Fund as was mentioned.

I was one of the attorneys in the Milligan case.

So, just a little more background on the case.

So, Milligan, as you heard, is a challenge to Alabama's redistricting plan that they passed in 2021.

So, the plaintiffs in the case, and that's Evan Milligan and other individual voters as well as the state conference of the NAACP and Greater Birmingham Ministries, filed a lawsuit challenging the congressional map for violating Section 2 of the Voting Rights Act.

So, Section 2, as you've heard prohibits redistricting plans that dilute the power, the voting power of voters of color by either packing them in large numbers into just a few or even only one district; in this case, only one.

Or, and sometimes also by cracking communities of color across multiple districts so that their influence in any specific district is minimized.

And, Alabama did both of those things.

They packed a large number of the state's Black voters into one majority Black district and that district is currently represented by Congressperson Terri Sewell.

And then, cracking the remaining-- the state's remaining Black voters across a number of districts.

And, in particular, the Alabama map cracked an area of Alabama called the Black Belt which is largely rural and is home to a significant percentage of the state's Black population.

That part of the state, part of the Black Belt was put into the one majority Black district in the state and the remainder was split into three different congressional districts.

So, you can imagine the impact on people's ability to be heard by their representatives when they have-- when what is essentially one community has to go to three different representatives to be heard, and they are a small minority of that representative's constituents.

So, that is the issue that we were looking at in the Milligan case, and that is what the district court found violated Section 2 of the Voting Rights Act.

So, as Tom Saenz explained, since the 1980s the Supreme Court has used a framework for analyzing claims under Section 2 of the Voting Rights Act.

It sets out the kinds of evidence that plaintiffs need to produce, and the kinds of analysis that the court needs to perform or states can perform this analysis themselves.

They don't have to wait to be sued.

They can look at their own districts and decide whether they violate Section 2.

And, using that analysis, using that framework that the Supreme Court adopted in the '80s, courts or states can determine whether their plans dilute the votes of people of color.

Alabama in this case had argued that, that framework should be thrown out, essentially completely thrown out; that a new framework should be adopted that they called "race neutral."

That you cannot consider race in their view when you're trying to remedy racial discrimination.

So, it is kind of a nonsense proposition that race can't be considered to remedy racial discrimination but that is what Alabama was advocating for.

So, this-- as you heard, the Supreme Court rejected that-- that invitation to rewrite the legal standards that govern Section 2 cases and essentially reaffirmed the test that has been used since the '80s and reaffirmed the status quo.

So, essentially as you've heard many people were surprised by this outcome but essentially what the Court did was reaffirm exactly what had existed before this case was brought.

And, in that sense, you know, we should not be surprised that the-- that we have a Court that follows the law, and follows precedent in a system that is based on precedent, but that is where we are.

So, we are overjoyed at the result, I will say, despite the fact that I find it somewhat sad that we have to be overjoyed at preserving the status quo, but I also want to emphasize that this is the status quo.

So, the status quo also includes the Shelby County decision from a decade ago that gutted the other key provision of the Voting Rights Act, in many ways the most important provision of the Voting Rights Act.

The status quo also includes the chipping away at Section 2 itself.

In another case just a couple of years ago called "Brnovich" out of Arizona, which made it more difficult to bring what we call "vote denial" cases.

So, cases where the argument is that the state has enacted a law that essentially prevents people from being able to cast a ballot.

So, the status quo-- despite this victory, the status quo needs to change.

We do need reform.

We need stronger laws.

We need to restore the voting rights, Section 5 of the Voting Rights Act.

That was struck down in the Shelby County case.

And, Congress has bills that have been introduced in past sessions- not so far in this one- that would do that, and would strengthen voting rights across the country.

So, we do believe that, that needs to happen despite this victory.

The Legal Defense Fund has another case in Louisiana where we've made a similar set of arguments.

The state had enacted a congressional redistricting plan that included only one majority Black district, and it packed voters into that district that was centered in the New Orleans area, but also reached up in and took in most of the Black population from Baton Rouge.

And then, left Black voters in other parts of the state without a meaningful voice in their congressional district and in congressional elections.

So, we put on the same kind of evidence under the same legal framework that the Court has now reaffirmed in the Milligan case.

In Louisiana, the Supreme Court-- we won the case in the lower courts.

We got a preliminary injunction in the lower courts saying that the state needed to redraw that map.

The Supreme Court stayed that decision.

So, they put a halt to the decision of the lower court to redraw the map.

And, it did not give reasons for staying the case.

It only said that we are gonna hold the case while we consider the Milligan decision.

So that-- now that the Milligan decision has been issued, the Louisiana case should move forward.

We are still waiting for the Supreme Court to let it go.

I will say we do not expect the state of Louisiana to simply accept defeat.

- Thank you for being with us.

Sandy, I don't know if you wanna say goodbye to the panel before we close.

- Well, just having worked closely with many of the redistricting [background music] advocacy groups, especially in the South, from Texas to Florida, Alabama, Louisiana, my sense was that we were witnessing the emergence of a real new generation of civil rights activist, heroes, inspired people by the very pushback the extent to which voting rights were being pushed back [dog barks, Zoom] because of the especially growing population of voters of color and people of color in these states.

And, this decision [background music] to go forward with the Milligan case which took an enormous amount of time.

As Tom Saenz said, these challenges consume resources just are incredibly arduous.

And, to achieve a victory?

This is inspiring for all of us across the country.

So, we were very honored to be able to present this briefing, and I want to thank you and applaud all of our speakers for your leadership role in this work.

Thank you.

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