The Supreme Court considers state power in elections

Transcript

NIALA: Good morning! Welcome to Axios Today!

It’s Thursday, December 8th.

I’m Niala Boodhoo.

Here’s what you need to know today: tech layoffs are hitting H1-B visa-holders hard. Plus, the AI generators sweeping social media. But first, the Supreme Court considers state power in elections – that’s today’s One Big Thing.

NIALA: The Supreme Court heard oral arguments yesterday in an elections case that could have major consequences for 2024. At issue in the North Carolina case is how much control state legislatures have over things like voting laws and election maps. The National Constitution Center’s Jeffrey Rosen is here to explain what this is all about. Hey, Jeff.

JEFF ROSEN: Hi. Great to see you.

NIALA: What exactly is this case and how did it get on the Supreme Court docket?

JEFF: Well, it's a big case and it involves the question of whether state legislatures can do whatever they want in state elections. In other words, can they change the rules after the fact or can they reject partisan gerrymandering limitations by state courts and it got on the docket cause North Carolina state court said there was too much gerrymandering. And folks challenge that saying state courts have no role in regulating gerrymandering, cause the legislatures can basically do whatever they want under the Constitution. And it all comes down to a clause in the Constitution called the elections clause. And the election clause says that state legislatures set the time, place, and manner of elections, subject only to congressional changes. And the question is, how strong is that power of state legislatures? Can they do anything they want without being regulated by their state constitutions or not?

NIALA: And so a lot of this comes down to, in this case, in North Carolina, the difference between redistricting and redrawing, a map and gerrymandering.

JEFF: Yes, redistricting happens periodically, legislatures do it all the time. In some cases, courts say that it's unconstitutional, gerrymandering, that it goes so far that it violates the state constitution. And the big question here is, can state courts say that a particular election arrangement violates their state constitution. And here it has to do with gerrymandering, but remember, this was a big issue in the last presidential election when mail-in ballots were being counted. Some state courts said that they should be counted after the fact, and that was challenged saying that changes the rules. The legislature has to be able to count mail-in ballots or not, as it wants without any oversight by state courts.

On the one hand, the most conservative justices, Justices Alito, Gorsuch, and Thomas, seems sympathetic to the really strong version of the independent state legislature doctrine that basically says state legislatures can do whatever they want in elections and they're not constrained by state supreme courts at all. On the other hand, there's the liberal justices to say this is completely inconsistent with text, with original understanding, that of course state legislatures are regulated by state constitutions and state courts.

In the middle, the Goldilocks position, which Justices Roberts, Kavanaugh, Barrett seemed to be moving toward, is that yes state courts can review election arrangements. They could look at gerrymandering, but when state courts substantially depart from the preexisting rules, then federal courts can look at that under some circumstances, but they should be pretty differential and not intervene too much. The most important practical question for listeners to look for is, does the really extreme conservative version of that independent state legislature theory get adopted?

NIALA: And if the extreme conservative view was adopted, what implications could that have for the 2024 presidential?

JEFF: Well, let's say in 2024 that there were questions about mail-in ballots again and state court said you gotta count all the mail-in and ballots that come in after a certain date. Even though that wasn't specified in state law, this theory would say no. That would be repudiated and none of those mail-in ballots could be counted because the legislature can't be constrained in any way by any decision, by a state supreme court. So that's what's at stake in this case. That's what makes it so incredibly interesting and exciting.

NIALA: Jeffrey Rosen is president of The National Constitution Center and also hosts the weekly “We the People” podcast. Thanks so much, Jeff.

JEFF: Thank you.

NIALA: In a moment, how tech industry layoffs are affecting H1-B visa holders.

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Tech layoffs are hitting H1-B visa-holders hard

NIALA: Welcome back to Axios Today! I’m Niala Boodhoo.

It’s been a really tough year for the tech industry, with more than 144,000 tech workers losing their jobs. More than a third of those layoffs came in November alone.

And for workers on H1-B visas… who are believed to make up between 10 and 30% of the tech workforce… the layoffs are particularly difficult. Because they have just 60 days to find a new job or risk deportation. Here to break it down for us is Axios’ Business Reporter Hope King. Hey Hope.

HOPE KING: Hey Niala.

NIALA: First, can you remind us what an H1-B visa is and what it's intended for?

HOPE: These are specialized roles that require very specific business knowledge and US employers will fill those roles with folks from outside of the US to take the positions, because they can't find the exact person they need in the US. Now, holders of these visas need to have at least a bachelor's degree or equivalent as just a minimum, and again, need to have very specific business knowledge and skills.

NIALA: and so some of these workers on H1B visas have been in the US for years. What options do they have once they're laid off?

HOPE: Well, as you mentioned, they have 60 days to find a new company to sponsor their visa and immigration lawyers have said if they can't find a company to do so, they can try switching to a different kind of visa, looking to non-work visas, including self sponsored green cards. But overall, the clock is ticking.

NIALA: In the past when we've talked about tech layoffs, I know Ina has pointed out to us that if you are a laid off tech worker, you probably have the skills to get employed again quickly. Is that true if you have an H1-B visa?

HOPE: Absolutely. I think the one silver lining, if there is one here, is that if you are a company in the position to hire for more workers, new workers to build your business, this might be actually a great time to hire people who have recently lost their jobs. So I think depending on the company, who, you know, might be smart enough to invest now. That is absolutely an option, and I've heard other experts say that, you know, if you are going to get laid off, it's better that you get laid off earlier in the layoff cycles than later because you can actually pick up newer jobs, before somebody else.

NIALA: Hope King is an Axios business reporter and is also co-author of the Axios Closer Newsletter. Thanks, Hope.

HOPE: Thank you.

The AI generators sweeping social media

NIALA: In the past week I feel like I’m seeing Lensa everywhere - that's the social media app that turns selfies into digital avatars using AI. Lensa and other apps making creative use of AI for the masses have been gaining huge popularity. Axios’ Chief Technology Correspondent Ina Fried has some thoughts about this trend and two of the companies gaining our attention.

INA FRIED: There's tons of interest around the latest AI systems, including ChatGPT and Lensa AI. Both show the incredible power of today's large language models. ChatGPT is a free service, at least for now, that can converse on a wide range of topics. I've seen people use it for everything from answering essay questions to generating fictional performance reviews, but it's particularly good at creating poetry or prose in a particular style.

Lensa AI is a paid service that creates profile pictures in several genres using 10 to 20 real images of a person. I tried it out and the results ranged from the rather flattering to the seriously cringeworthy, but there were several I liked. Yes, but both systems also show the limits of AI and the degree to which such systems can be convincing but flawed.

With Lensa for example, some women have said the machine makes them overly busty and others have said the skin tone was lightened. Not everyone has had those results however. With ChatGPT, one of the dangers is the system doesn't say how sure it is of what it's saying, and as I've written about, it can be convincingly wrong. The bottom line is that the latest tools are both fun and captivating, but also bring to life some of the really serious concerns around AI bias.

NIALA: Ina Fried is Axios’ Chief Technology Correspondent.

That’s it for us today! You can always reach our team by emailing podcasts at axios dot com. Or you can text me at (202) 918-4893.

I’m Niala Boodhoo - thanks for listening - stay safe and we’ll see you back here tomorrow morning.