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How Justice Kennedy's Successor Could Play A Role In Voting Rights


This week, we're looking at how certain areas of the law might change when Justice Anthony Kennedy is replaced. Today we're looking at voting rights, essentially who gets to vote in this country and how. Rick Hasen is a law professor at the University of California, Irvine. He says the person who replaces Kennedy could play a part in weakening safeguards against discrimination during voting, safeguards that were put in place by the Voting Rights Act of 1965. I asked him to explain what he means.

You have written that a new Trump appointee to the Supreme Court, depending upon who that is, could wreak havoc with voting rights. If Justice Kennedy didn't swing - if he always sided with conservatives on voting rights, then why would a Trump appointee, who we'd assume would be a conservative, change anything?

RICK HASEN: There's disagreements among the conservative justices, the Republican-appointed justices on the court. For example, Justice Thomas believes that not only are campaign finance contribution limits unconstitutional but that disclosure of who is funding campaigns is also unconstitutional. That's not a position that Justice Kennedy took. Justice Kennedy interpreted the Voting Rights Act in narrow ways. But Justice Thomas and, in the past, Justice Scalia expressed the view that the entire Voting Rights Act could be unconstitutional. So while Justice Kennedy was quite conservative, there's a far range of positions to the right of him where the next justice could go.

KING: What's a scenario that you envision in which a case comes before the Supreme Court and the addition of a Trump appointee who's very conservative leads to what you would define as the erosion of voting rights?

HASEN: One place it might come up is in the context of partisan gerrymandering. This is the drawing of district lines to favor one party or another. And for 14 years, Justice Kennedy was the swing vote there. He was the one who couldn't decide whether or not federal courts should be policing this area. And he left the issue open for his successor.

It seems quite possible that there's going to be a case from the state of North Carolina that's going to come up to the court in the next term that's going to face the question before the court - can states do whatever they want to draw district lines to favor one party over another? And I think what's likely to happen is that the Supreme Court is going to say, this kind of behavior can't be policed by the federal courts. And we're going to see, especially after the 2020 round of redistricting, more lines being drawn by state legislatures to favor one party or another without any federal court backstop to stop them from engaging in the most egregious kinds of manipulation of district lines.

KING: As President Trump is getting ready to announce his nomination, many people who support the rights of women to choose to have abortions are concerned about those rights being eroded. They're concerned about Roe v. Wade being overturned, for example. Are there similar concerns when it comes to the Voting Rights Act? Could a changed court put an end to the Voting Rights Act completely?

HASEN: I think it is certainly within the realm of possibility that the court could strike down longstanding federal campaign finance laws which say that it's illegal to give more than a certain amount of money to a candidate directly. So right now, you can't give more than $2,700 to a candidate for a federal election. That law might be struck down. I think all of this is going to come down to the question of Chief Justice Roberts, who will be in the position of the new swing justice. He's going to have to decide when he wants to spend his political capital. Does he want to overrule the remaining part of the Voting Rights Act, or does he want to kill it with a thousand cuts?

KING: That was Rick Hasen. He's a law professor at UC Irvine. He's also author of the book "The Justice Of Contradictions: Antonin Scalia And The Politics Of Disruption." Transcript provided by NPR, Copyright NPR.

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