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In a 6-3 vote with Republican-appointed justices in the majority and Democratic-appointed justices in dissent, the court sharply limited the use of the Voting Rights Act to create predominantly black or Hispanic election districts. It's a ruling that buttresses Republican efforts to keep control of the House in this year's midterms and beyond. Joining me is one of the country's leading experts on election law, Rick Hassan, a professor at UCLA Law School. Rick, how would you characterize this decision? Is it a game changer? This is an earthquake. It is one of the most significant decisions regarding elections that the Supreme Court has ever issued. Tell us why. So when Congress initially passed the Voting Rights Act in 1965, it did things like assure that black voters in the South would be able to register to vote. But it didn't do anything about the lack of political power that black voters would have, even when they do vote, especially in situations where white voters and minority voters prefer different candidates. In 1982, Congress responded to that by amending Section 2 of the Voting Rights Act to provide that when white voters and minority voters prefer different candidates and it's possible to draw a district where minority voters can elect their candidate of choice, under some circumstances, states have to do that. And for the period from 1986 until today, the understanding was that this is what Section 2 required. What Justice Alito did in his opinion is essentially eviscerate Section 2 of the Voting Rights Act, although he claims not to overrule the test that's been in place since 1986, the so-called Jingles Test. He does that, and he imposes a test that will be virtually impossible for minority voters to win. This is going to lead to many more legislative bodies where there will be only or mostly white representatives, And minority voters will not have fair representation in Congress, in state legislatures and in local bodies like city councils and school boards. I mean, how did Justice Alito explain? What was his reasoning? So what Justice Alito did was say that race consciousness in law is a potential violation of the Constitution. Constitution. The Constitution requires a kind of race blindness when it comes to elections and comes to other areas. And so in order to keep the Voting Rights Act constitutional, he had to reconceptualize it to change the standards. And so today, what he says is that when a group of minority voters wants to show a claim under Section 2, they've got to show that if, say, a computer algorithm was drawing districts by chance, they would have had a chance to have this district drawn to give them the opportunity to elect a candidate of choice. You can't be race conscious in drawing districts. That is turning the Voting Rights Act on its head. Further, he says that states can defend the drawing of district lines that dilute the power of minority voters by saying they're doing it to favor their political party. So partisan gerrymandering, far from being unconstitutional, becomes a defense to a voting rights case. And that is profoundly ironic. It also takes the idea that someone in Alabama could pass a law that would favor Republicans, but not favor white voters. It just makes no sense, given the tremendous overlap of race and party in these cases. Alito, I understand when he was reading parts of his decision from the bench, said basically, don't listen to the dissent. This is not really a big deal. I mean, why do you think they kept the Voting Rights Act in? Is it for appearances sake so they could say this isn't a big deal? Don't look here. So in 2021, Justice Alito wrote a majority opinion for the court in a case called Brnovich versus DNC. When that case came out, I said what Justice Alito has done is essentially eviscerated the Voting Rights Act Section 2 as applied outside of redistricting. And since that case, as I recounted in a recent Law Review article that Justice Kagan cited in her dissent. There has been no successful case under Section 2 since Brnovich outside of redistricting. He's doing the same thing here. In Brnovich, he pretended he wasn't overturning the Voting Rights Act, but he imposed such a test. He doesn't want to take the political heat for overturning the act, but he essentially renders it a dead letter, as Justice Kagan says in her dissent today. Justice Kagan said the decision completes the Supreme Court's three-step plan to eliminate the protections of the Voting Rights Act that started in 2013 in the Shelby County case. Can you tell us about those three steps? So there were two key parts to the Voting Rights Act until 2013. One part, as you mentioned, is Section 5 of the Act. That required states with a history of racial discrimination in voting to get federal approval before they made changes in their voting rules, and they'd have to show that the changes wouldn't make minority voters worse off. In Shelby County, in a John Roberts opinion, the conservatives on the court said that the formula used to figure out which states are covered under Section 5 was outdated and therefore unconstitutional. But the majority assured us don't worry, there's always Section 2 to protect minority voters. Then came Step 2, that Brnovich case, where the court said Section 2, outside of the context of redistricting, is essentially a dead letter. And here comes the third and final step, which is Justice Alito, in his opinion in Calais, saying, here's what Section 2 means now, essentially rendering Section 2 a dead letter as it applies to redistricting. This is going to bleach all of these legislative bodies. It is going to make it very difficult, if not impossible, for minority voters to win in any of these lawsuits. Is there anything left of the Voting Rights Act? Well, there are parts of the Voting Rights Act that survive. For example, there's a ban on literacy tests. There are other requirements of the Voting Rights Act, but the two big parts of the Voting Rights Act, Section 2 and Section 5, are there in a shell only. And it is a sad day for voting rights and democracy in the United States. Progressive groups have said that as many as 19 Democratic congressional districts with primarily Black or Hispanic populations are at risk and nearly 200 legislative seats held by Democrats in the South could also be wiped out Do those numbers seem right to you Because those are huge numbers. They are huge numbers. I have to say it's not my area of expertise to know exactly what is going to happen in terms of how many districts. But I do want to make an important point, which I think some people are missing, which is that not only will Republicans have an incentive to get rid of these districts, so will Democrats. Democrats will want to take their reliable black voters and spread them out in more Democratic districts, thereby decreasing the number of minority opportunity districts, but still helping Democrats win their elections. And so I think the real losers here are minority voters and the American people overall. If we're going to live in a multiracial democracy, we need to have fair representation for all people. That is an interesting point that I haven't heard made before. Now, a question that has been raised is, how will this decision affect the midterms? It's not clear how this decision will affect the midterms because many states have already conducted their primaries, and it would be unusual to go back and redraw lines and require there to be a new set of primaries. But there are some places, most importantly in Florida, where they are already right now considering a new districting plan. They can now consider a districting plan that doesn't have to take into account the requirement to draw districts that, until today, we thought were necessary under Section 2 of the Voting Rights Act. And so in Florida and maybe a few other places where they have not held primaries, we could see some redrawing of district lines. But in 2028, we may see the full effects of this decision? I fully expect states like Louisiana and Alabama, if they can't get it done in time for 2026, to certainly get redistricting, diluting minority voting power in time for 2028. As you know, President Trump started this mid-decade redistricting battle. Does this decision affect the redistricting that's been done in Texas, California, Virginia, etc.? Are any of those maps affected or it doesn't matter because they were done for partisan reasons? Well, it's a hard question to answer because partisan gerrymandering is now a defense. And so that should render maps drawn for partisan reasons immune from Section 2 claims. But I should say that the Virginia maps, which were recently passed by voters, may or may not survive a state court review in the Virginia Supreme Court. And so there's still some question marks as to exactly what the lines are going to be for the remaining primaries in 2026. So California Attorney General Rob Bonta said, while the full impact of this ruling is still uncertain, we know from past experiences that decisions striking down or effectively gutting provisions of the Voting Rights Act are often followed by new state laws that restrict access to the ballot for voters of color. Well, I think that's already happened. And I think that Calais doesn't really affect that directly. It was really the Brnovich decision, the one that Justice Alito wrote in 2021 that essentially rendered Section 2 truthless as applied to laws that make it harder for people to register or to vote. But I think the general mood of the Supreme Court is that, you know, you can do anything for partisan advantage and the Supreme Court is not going to police it. The Supreme Court has been accused more and more of being political, though Chief Justice John Roberts likes to talk about, you know, we're not politicians. Does this decision with six Republicans on one side and the Democrats on the other, does this make it even more political or seem even more political? Well, I think it's very clear that the conservatives on the Supreme Court are helping, whether intentionally or not, the Republican political agenda. And so whether the justices honestly believe that they're simply applying jurisprudence or they are partisan hacks, as Justice Barrett claimed they were not. It doesn't really matter. The effect is going to be the same, and the effect is going to be to help the Republican Party. Could Congress pass a law somehow getting around this? Congress could pass a law revitalizing the Voting Rights Act because this was a matter of statutory interpretation, not a constitutional decision. And so that would dare the Supreme Court to actually do something and strike it down again. I think that this decision is going to lead to more calls for Supreme Court reform, because it's pretty clear what the political direction of the majority of the court is, and it's quite a partisan direction. You've written that this is the worst Supreme Court ruling in a century. Explain why. Well, when it comes to voting rights, Section 2 was really revolutionary in assuring we could have a more multiracial democracy. And the Supreme Court, by turning the Reconstruction amendments on their head and making race consciousness, which Congress required in Section 2, something that is constitutionally suspect. What the court is going to do is going to change the nature of political representation in this country, bringing us back to a time well before the passage of the Voting Rights Act amendments in 1982. It's been great having you on, Rick. Thanks so much. That's Professor Rick Hassan of UCLA Law School. Coming up, Bayer asked the Supreme Court for help. This is Bloomberg. Bayer has faced a tidal wave of litigation, more than 100,000 cases, alleging its Roundup weed killer causes cancer. The litigation has cost the company more than $10 billion and resulted in some stunning multi-billion dollar jury verdicts against it. In a case before the Supreme Court this week, a jury awarded a Missouri man $1.25 million after finding that Bayer had failed to warn him about possible cancer dangers. Bayer argues that federal law bars the lawsuit because U.S. regulators didn't require a cancer warning. The company's attorney, former Solicitor General Paul Clement, put it simply during oral arguments. The EPA regulation and the government's brief here makes crystal clear that a registrant cannot change the safety warnings on a pesticide label without approval of the agency. Thus, Missouri law here requires something that not only is not required by federal law, but that federal law doesn't even allow. The questioning during the oral arguments didn't follow the usual ideological lines. For example, when liberal Justice Elena Kagan questioned the lawyer for the Missouri plaintiff about a provision in federal law requiring uniformity in herbicide labels, and the lawyer said the lawsuit wouldn't undercut that uniformity, Justice Brett Kavanaugh pushed back. Just to be simple-minded about this, Mr. Keller, you have a preemption provision that's labeled uniformity that's clearly designed to achieve uniformity in labeling and what uniformity would your regime achieve? Uniformity in law. You think it's uniformity when each state can require different things? I don't think each state can require different things. The law has to be uniform. So if Missouri law was in addition to a different... It's the labels illegal in one state and legal in another state. That's uniformity. But Chief Justice John Roberts a conservative questioned the notion that states worried about cancer risks should have to wait for the EPA to decide whether to require a label change Well it does undermine the uniformity I appreciate that On the other hand if it turns out that they were right, it might have been good if they had an opportunity to do something to call this danger to the attention of the people while the federal government was going through its process. And Bloomberg Intelligence estimates that if Bayer loses at the Supreme Court, the amount it will pay will likely exceed the $7.25 billion it's proposed to resolve future and existing claims. My guest is an expert in mass tort litigation, Elizabeth Birch, a professor at the University of Georgia Law School. She has a new book out called The Pain Brokers about a mass tort scam. Beth, this was one of the first cases that went to trial against Bayer, right? Yeah, so this was a state court case coming out of Missouri. It was a verdict, obviously, against Bayer and in favor of the plaintiff in this particular litigation. And so, you know, this is one of quite a few verdicts that have been decided against Bayer, although not all of them have gone that way. And so, you know, I think at the moment, Bayer is also trying to negotiate a class action settlement in state court, which is ironic for any number of reasons. But, you know, this is one of those pressure points, the idea being, hey, you'd better settle with us in state court. Otherwise, your claims might be diminished in terms of their value if this is a decision that goes our way. Put this into the context of the massive litigation against Bayer. There have been a couple of really eye-popping verdicts of more than $2 billion for a single plaintiff. Yes, there have. So this litigation has been going on for a number of years now. It is centralized in California in front of Judge Chabria at the federal MDL level. There are a number of state court cases that are also pending. and Bayer has really been looking for some sort of end game and way out to this. This is certainly a piece of that in front of the Supreme Court, although even a win in front of the Supreme Court wouldn't kill all of the lawsuits. It would make them more difficult to proceed, certainly on the failure to warn claims. But the plaintiffs have also brought defective design claims. So this has really been a thorn in the side of Bayer for years now. Tell us about the main issue in this case. Well, the issue that is in front of the Supreme Court right now is a question about preemption. And it is in some ways a fairly narrow question of preemption that's based on this Pesticide Act. And it's a question about whether the federal law can preempt state law decisions on failure to warn claims. So Bayer says that the federal law preempts the state law. What's the response of the plaintiff? You know, the plaintiffs are making a number of arguments. I think the one that is most intuitive is that once the EPA approved a particular label, things can happen and things can change. So, you know, in this case, the label was approved more than a decade ago. And there is some evidence that there is a link between glycophosphate, which is the key ingredient in Roundup, and Mon-Hodgkin's lymphoma that has been at the heart of this controversy for a number of years. the World Health Organization has said that there is a possible carcinogen in glycophosphate. The EPA has been more reluctant to embrace that decision. And so, you know, the big question is, well, what about emerging science? You know, if it turns out that you have a label that's approved many, many years behind, isn't there some sort of responsibility on part of the company to keep up with the science and to continue to warn consumers when there is a change in that science? In all these cases, questions about glycophosphate's connection to cancer are part of the litigation. Glycophosphate, so there is a question. There is different scientific support on one side versus the other. And this is a question right now in front of the courts about whether there is general causation between exposure to glycophosphate and how much and the development of non-Hodgkin's lymphoma. Again, there's a significant latency period here. It can be, you know, 14, 15 years between the exposure and the development of cancer. So there's all sorts of general causation questions, which is can glycophosphate cause this particular disease? And then specific causation questions, which is did it cause this particular plaintiff on Hodgkin's lymphoma? And the Trump administration has sort of embraced... This message is brought to you by Apple Card. Apple Card is designed with your iPhone in mind. making it easy to get started and even easier to use. Apple Card is a no-fee credit card you can apply for right from the Wallet app on your iPhone. Apple Card has no annual fee, no late fees, and no foreign transaction fees. No fees, period. Every credit card should be this easy. Get started in the Wallet app today. Subject to credit approval, variable APRs for Apple Card range from 17.49% to 27.74% based on credit worthiness. Rates as of January 1, 2026. Existing customers can view their variable APR in the Wallet app or at card.apple.com. AppleCard is issued by Goldman Sachs Bank USA, Salt Lake City branch. Terms and more at AppleCard.com. As markets move and headlines break, what matters most is context. A Bloomberg subscription gives you unmatched reporting, sharp analysis, and powerful tools that help you connect the dots. Visit Bloomberg.com slash podcast offer to learn more. Glycophosphate. You know, it's interesting. This is, yeah, so the Trump administration has very much embraced glycophosphate, but it is something that is dividing the Trump base. You know, Robert Kennedy for a number of years actually represented plaintiffs against Monsanto. And a key piece of the Make America Healthy, again, is to reduce the use of pesticides like glycophosphate. And so my understanding is there were a number of protests out in front of the Supreme Court that included Maha supporters who were protesting against the use of Roundup. So from the oral arguments, it seemed like the justices were divided. Yeah, I mean, they certainly seemed divided and it didn't fall neatly along conservative liberal lines. So, you know, you had some justices you would have thought might be supportive of Bayer who, in fact, were less supportive of Bayer than you might imagine. And then you had a number of the liberal justices who were actually not seeming like they were in favor of Bayer. So it'll be interesting to see what this opinion ultimately yields because it doesn't have the kind of clear lines that we often expect among these types of hot button issues. And what do you make of the chief justice suggesting that states considering new evidence that a product is risky should be allowed to call this danger to the attention of the people? I mean, I think that goes back to what you and I were talking about just a minute ago, which is if there is new and emerging evidence, does that mean that the hands of the company are tied, that they can't warn consumers that, hey, you might need to have some sort of personal protective equipment or hey this might have some sort of link to cancer because the EPA has already sort of put that in place The flip side of all this is that there is evidence that a number of companies even in light of old EPA warnings have changed their own labels And so, you know, that came up in some of the questioning saying, well, you know, companies are doing this all the time. Why should it tie the hands of companies if this is what they're doing already? And so that was kind of one of the points of contention that came up. And tell us about questions of uniformity in the law, which Justices Kagan and Kavanaugh quiz the plaintiff's attorney on. I mean, I think the question is, is this an instance in which you really want uniformity in the law and you want uniform law to preempt what the states are doing? And so, you know, if you have California saying you need to warn, we think that there is some sort of link between glycophosphate and non-Hodgkin's lymphoma, does that mean that you have to put a label in California and nowhere else in the United States? Like, do you have this sort of state-by-state regulatory scheme or do you have federal preemption in telling you what has to be there? And it seems like there's also this sort of related question of how much can a company do even in the wake of the EPA not requiring it? You know, so can you go ahead and put a label on there saying, hey, we're worried this might cause cancer, even if the EPA doesn't require you to do it? And farm groups filed briefs in support of Bayer, arguing that a uniform standard is better than a patchwork of state rules. You know, it's interesting. I think I get the sense that the farm community is split. I mean, there were a number of the Maha supporters who were concerned about farmers and about, you know, farmers exposure to the use of Roundup. And I think many of the farmers echo that. The flip side is that, you know, they find that it is a very effective weed killer. And so, you know, this is something that many of them want to continue using. So I don't think there's uniformity in, hey, all farmers want this or all farmers don't want this. And the Roundup that's in use now, does it have glycophosphate in it or not? Last I heard, I think that Bayer took Roundup off of the market for general consumers, and it is still available for commercial use, but not for you and I to go and buy in Lowe's or Home Depot. So I don't think you can continue to purchase glycophosphate on the commercial market for consumers. Beth, after hearing the oral arguments in the case, Bloomberg Intelligence litigation analyst Holly Fromm changed her view and now thinks that the Supreme Court is unlikely to rule that state law failure to warn claims are preempted by federal law. So a loss for Bayer. Did you get any feel from the oral arguments about which way the justices will go? Yeah, I think it's really hard to say. I don't think the argument was as clearly in favor of Bayer as many people had expected it to be. So in that regard, you know, it was a bit of a blow to Bayer. I think their stock felt it doesn't mean that it won't ultimately to be decided in Bayer's favor, but it didn't go as many people were predicting it would. So could a decision in favor of Bayer affect other medical device, cosmetic and food industries that are governed by similar laws? You know, it's hard to say without seeing how broadly or how narrowly the Supreme Court decision is written. Traditionally, the Supreme Court has only decided what it has to decide. And, you know, there's this question of, OK, well, if they decide this about the Pesticide Act, what does it say about the Food, Drug, Cosmetic Act, etc.? Certainly, it would be potentially persuasive in other areas. But again, depending on how broadly or how narrowly written it is, it certainly doesn't carry the day in other acts. Okay, stay with me, Beth. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Elizabeth Birch. We'll hear about her new book, The Pain Brokers. This is Bloomberg. I've been talking to Professor Elizabeth Birch of the University of Georgia Law School. Let's turn now to your new book. In fact, you took time out from your book tour to talk to me, which I appreciate. Tell us about your book called The Pain Brokers. So The Pain Brokers is a book about this group of people who were luring women with pelvic mesh down to South Florida to have the mesh removed essentially at a chiropractor's clinic and an outpatient center next to a strip mall in order to jack up the settlement values of their claims. And to allow doctors, third-party litigation funders, and middlemen, in addition to the lawyers, to recover an enormous amount of money, while the women themselves were often left with very little settlement money and permanent incontinence and injuries. So it's a crazy scheme. It's a follow-the-money story about this pelvic mesh litigation that occurred a number of years ago. But the scheme is very much continuing to happen today. I don't know if you remember the Epic Systems data breach that was alleged a couple of months ago, but one of their subsidiaries admitted to selling private health care data to mass tort plaintiff lawyers. So this is something that is continuing to happen today and is a big concern. There were a number of phone calls that women were getting where the people on the other end of the line knew the name of their doctor, the name of their hospital, the name of their implant, their birth date, you know, all the information that you wouldn't expect people to have. And then they told them, you have a ticking time bomb and you have to come to South Florida to get this removed immediately or you're going to die. The problem is our information is out there no matter how you try to protect it. I can't tell you how many times I've gotten notices in the mail that my personal information has been compromised because a company that I haven't even had direct dealings with has been hacked. For example, a company that is handling billing for a doctor I went to. I mean, it seems like there's just no way to really protect your health information. That's right. And, you know, we typically think that that translates into credit card fraud or someone stealing our identity. You don't expect it to translate into people cold calling you and telling you that you have a ticking time bombing you in such a convincing way. I mean, there were over 100,000 women who received these phone calls. It sounds like an incredible story. Good luck with the book. And thanks so much for taking the time to talk to me today. That's Professor Elizabeth Birch of the University of Georgia Law School. Her new book is called The Pain Brokers. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.
