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Georgia Abortion Ban Struck & Election Suits Mount · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:09
Speaker 2: A judge struck down George's abortion law, which effectively prohibited
0:13
Speaker 2: abortions beyond about six weeks of pregnancy. That's often before
0:18
Speaker 2: women realize they're pregnant. Judge Robert McBurney wrote, it is
0:22
Speaker 2: not for a legislator, a judge, or a commander from
0:26
Speaker 2: the Handmaid's tale to tell these women what to do
0:29
Speaker 2: with their bodies during this period when the fetis cannot survive.
0:33
Speaker 2: His ruling means the law in the state reverts to
0:36
Speaker 2: its prior status, allowing abortions until roughly twenty weeks into pregnancy,
0:41
Speaker 2: although the state Attorney General intends to appeal to the
0:45
Speaker 2: state Supreme Court, which already struck down the law on
0:48
Speaker 2: different grounds. Joining me is Elizabeth Zepper, a professor at
0:52
Speaker 2: the University of Texas Law School and an expert in
0:55
Speaker 2: health law. Liz, will you tell us about the history
0:58
Speaker 2: of the litigation over this Georgia abortion ban? So?
1:03
Speaker 3: Two years ago the court here held a trial on
1:08
Speaker 3: the constitutionality of Georgia's six week abortion ban and entered
1:13
Speaker 3: in order, largely in joining the provisions of the law,
1:18
Speaker 3: but then the state appealed and the Supreme Court stayed
1:21
Speaker 3: the court's ruling to allow it to consider the full
1:25
Speaker 3: merit of the constitutional argument. And so with this reversal,
1:28
Speaker 3: it went back to the trial court, and now the
1:31
Speaker 3: trial court again has determined that the law violates the
1:35
Speaker 3: state constitutional protections for liberty, privacy, and equal protection.
1:40
Speaker 2: Does Georgia law have a broader right to privacy than
1:44
Speaker 2: federal law?
1:45
Speaker 3: The Georgia Constitution protects liberty in a due process clause
1:50
Speaker 3: that looks a lot like the US Constitution but was
1:53
Speaker 3: more recently ratified in nineteen eighty two, and that has
1:58
Speaker 3: been interpreted by Georgia court to encompass a right to privacy.
2:02
Speaker 2: I thought that the language was sort of stunning until
2:05
Speaker 2: that life can be sustained by the state and not
2:08
Speaker 2: solely by the woman compelled by the act to do
2:11
Speaker 2: the state's work. The balance of rights favors the woman.
2:15
Speaker 2: Can you explain his reasoning?
2:17
Speaker 3: Sure? On the issue of the pregnant person's liberty, the
2:21
Speaker 3: Georgia Constitution protects a right to be let alone, and
2:25
Speaker 3: like many other state constitutions, this means that individuals get
2:30
Speaker 3: to make choices about their own bodies including the right
2:33
Speaker 3: to refuse medical treatment or to take medical treatment that
2:37
Speaker 3: we might disagree with. And the court here says, look,
2:40
Speaker 3: there's a compelling interest on the part of the state
2:42
Speaker 3: in protecting fetal life, that there's a fundamental right on
2:46
Speaker 3: the other side of the ledger and on balance until viability,
2:52
Speaker 3: that balance favors the woman, so that abortion prior to
2:57
Speaker 3: viability has to be available to her. That otherwise the
3:00
Speaker 3: state is conscripting her into service to the state in
3:03
Speaker 3: a context where the fetus is entirely dependent on the
3:07
Speaker 3: pregnant person and the state can't assume responsibility for the
3:11
Speaker 3: fetal life.
3:12
Speaker 2: Also, he said that the Georgia ben isn't narrowly tailored.
3:17
Speaker 3: Right. He says it's not narrowly tailored because it is
3:21
Speaker 3: so broad, and that the state can't advance its interest
3:25
Speaker 3: in fetal life by so overwhelmingly destroying the pregnant person's
3:31
Speaker 3: ability to control her body and to make decisions about
3:35
Speaker 3: medical treatment. That only post viability line can the state
3:39
Speaker 3: apply its law so broadly and tell.
3:41
Speaker 2: Us a little about the claim under the Georgia Constitution's
3:45
Speaker 2: equal protection clause.
3:47
Speaker 3: Right, So, under the Georgia Constitution, the equal protection clause
3:52
Speaker 3: requires strict scrutiny, so the highest level of constitutional review
3:56
Speaker 3: where you have an infringement on a fundamental right and
4:00
Speaker 3: the state is sorting people. So the plaintiffs here had
4:02
Speaker 3: made a number of arguments about the ways that the
4:05
Speaker 3: law was sorting people, and the court here in particular
4:09
Speaker 3: highlighted that the state, as some other states have done
4:13
Speaker 3: as well, has allowed pregnant people to access abortion for
4:17
Speaker 3: medical emergencies, but then has said that mental health crises
4:22
Speaker 3: are not accepted from the abortion ban. And the court said, look, right,
4:27
Speaker 3: healthcare crisis that involve the brain, which is a very
4:30
Speaker 3: important organ for our functioning, can't be treated differently than
4:35
Speaker 3: crises involving the body, and that there seems to be
4:39
Speaker 3: some animals against mental health actually underlying this particular classification.
4:44
Speaker 2: What do you think about the language of the opandanim
4:47
Speaker 2: He also referred to it's not for a legislator, a judge,
4:50
Speaker 2: or a commander from the Handmaid's tale to tell these
4:54
Speaker 2: women what to do with their bodies.
4:56
Speaker 3: I think in some measure it looks a lot like
4:58
Speaker 3: language that we're seeing from state court judges across the country. Now.
5:03
Speaker 3: Sometimes that language is in descent. I think here about
5:06
Speaker 3: the Ioa Supreme Court, which recently upheld that state six
5:10
Speaker 3: week ban over some pretty vigorous descent, and in a
5:14
Speaker 3: context where that court had been stacked by Republicans so
5:18
Speaker 3: as to change the state constitutional protection. So here, what
5:22
Speaker 3: I think the Trial Court is doing is a couple things.
5:25
Speaker 3: He is telling the state Supreme Court that there is
5:28
Speaker 3: a long history here and that their position on the
5:31
Speaker 3: abortion van defies the interpretation of the Georgia Constitution that
5:36
Speaker 3: courts had previously understood. I think the trial court also
5:40
Speaker 3: signals that he fully expects that the state Supreme Court
5:43
Speaker 3: will reverse him. He slams the Supreme Court very early
5:47
Speaker 3: on for its false modesty. Right, It's basically its pretense
5:52
Speaker 3: that the court was sort of just calling balls and strikes,
5:55
Speaker 3: and the constitution means what it means, and courts don't
5:58
Speaker 3: actually play a role in telling people what it means.
6:01
Speaker 3: And he basically calls them out for engaging in nonsense
6:04
Speaker 3: on that point. So I think the major takeaway from
6:07
Speaker 3: this opinion is that abortion is not safe in Georgia.
6:11
Speaker 3: I think the voters of Georgia should be aware that
6:14
Speaker 3: it is highly unlikely that abortion will become legal in
6:18
Speaker 3: the state and the six week span will remain enjoined.
6:21
Speaker 3: And so I think that's a really important point given
6:23
Speaker 3: the election year, where I actually think the timing of
6:26
Speaker 3: this decision is one that could really confuse voters where
6:29
Speaker 3: they think maybe abortion is no longer an issue in
6:31
Speaker 3: the same and.
6:32
Speaker 2: The next step is they'll appeal this to the Georgia
6:35
Speaker 2: Supreme Court.
6:36
Speaker 3: Yeah, so the next step is an appeal on the
6:39
Speaker 3: constitutional issues. Again, I think highly unlikely there is this
6:43
Speaker 3: decision stands for any period of time.
6:45
Speaker 2: So I'm wondering whether doctors would even feel safe performing
6:48
Speaker 2: abortions in this interim period.
6:52
Speaker 3: Yeah, so it sort of depends on the political economy
6:55
Speaker 3: of Georgia. I guess you know. We've seen trial courts
6:58
Speaker 3: in the state of Texas. For example, in Kate Cox's case,
7:02
Speaker 3: right trial court had issued an order that would have
7:05
Speaker 3: allowed a doctor to go forward with an abortion for
7:08
Speaker 3: Kate Cox, and the Attorney General threatened any hospital or
7:12
Speaker 3: physician that went forward that he would in fact prosecute
7:15
Speaker 3: them to the full extent of the law. We also
7:18
Speaker 3: saw in Amanda Zerovski's case in Texas, a win in
7:22
Speaker 3: the trial court that was immediately enjoined right, So there
7:25
Speaker 3: was never sort of the time for providers to begin
7:29
Speaker 3: providing care. So that may well happen in Georgia as well.
7:33
Speaker 2: I wanted to ask you about Louisiana. Louisiana became the
7:37
Speaker 2: first state to list abortion drugs as control substances. What
7:42
Speaker 2: does that mean for using abortion drugs in that state?
7:46
Speaker 3: Yeah, so treating abortion drugs as controlled substances means that
7:52
Speaker 3: possession of methopristoe my prosco can be prosecuted as a
7:58
Speaker 3: drug crime, also affecting care in hospital settings because it's
8:05
Speaker 3: a controlled substance, right, requiring a lot more in the
8:08
Speaker 3: way of regulation and control over the drug. And these
8:11
Speaker 3: drugs are used both for non therapeutic abortions where people
8:15
Speaker 3: are seeking abortion, and also for miscarriage treatment.
8:19
Speaker 2: If you look at how strict the state's abortion bands are,
8:24
Speaker 2: is Louisiana on the outer edge of most extreme?
8:28
Speaker 3: Yes, I mean it's a large and growing group of
8:31
Speaker 3: states that are on the outer edge of abortion regulation.
8:35
Speaker 3: I think it's important to put in context that Louisiana's
8:38
Speaker 3: criminal abortion pill law is consistent with the fact that
8:42
Speaker 3: Louisiana incarcerates people at a rate really not known in
8:47
Speaker 3: the developed world. So a verycarceral state that prefers to
8:52
Speaker 3: deal with almost every kind of social problem that the
8:55
Speaker 3: legislature might identify as a criminal problem. So pregnant people
8:59
Speaker 3: are exempted from the law, but friends or family or
9:03
Speaker 3: anyone who possesses medication abortion just in case could be
9:07
Speaker 3: subject to the criminalization.
9:09
Speaker 2: Besides Louisiana, do any other states abortion laws stand out
9:14
Speaker 2: to you?
9:14
Speaker 3: You know, there are a number of states that have very,
9:17
Speaker 3: very narrow exceptions. Tennessee is one with very narrow exceptions.
9:22
Speaker 3: There are states that require, for example, substantial impairment of
9:26
Speaker 3: a major bodily function be irreversible in order for a
9:31
Speaker 3: doctor to perform an abortion. I suspect that the legislative
9:36
Speaker 3: term beginning in January is going to come with a
9:39
Speaker 3: lot of innovations in abortion law. We'll probably see things
9:44
Speaker 3: like travel restrictions. We may see more states follow Louisiana's
9:49
Speaker 3: model in criminalizing abortion pills as controlled substances. So I
9:54
Speaker 3: think there's just a lot of lawmaking in this area
9:57
Speaker 3: and a lot of competition between states to regulate more thoroughly.
10:02
Speaker 2: And on the opposite end of the spectrum from Louisiana
10:06
Speaker 2: is California. Is California tell us about its lawsuit against
10:11
Speaker 2: a Catholic hospital.
10:13
Speaker 3: So, California has filed a lawsuit under the Emergency Medical
10:17
Speaker 3: Treatment and Labor Act against a Catholic hospital that refused
10:22
Speaker 3: care to a pregnant person who is miscarrying. And this
10:26
Speaker 3: is really an important lawsuit because we know that hospitals,
10:31
Speaker 3: even before Dobbs, in particular religiously affiliated hospitals, had been
10:37
Speaker 3: denying and delaying care from miscarriages to people and also
10:41
Speaker 3: for treatment of ectopic pregnancies. And so this is really
10:45
Speaker 3: an attempt to make sure that hospitals within jurisdictions that
10:49
Speaker 3: are committed to abortion care are providing abortion care in
10:53
Speaker 3: those sort of narrow situations that the federal law requires,
10:56
Speaker 3: so where someone's health is in serious jeopardy nless they
11:00
Speaker 3: get an abortion. And this is in line with the
11:02
Speaker 3: cases that we're seeing ongoing both in Texas and Idaho.
11:06
Speaker 3: Idaho's case had gone up to the Supreme Court last term,
11:09
Speaker 3: but the court basically punted, raising the question of what
11:12
Speaker 3: the federal law requires of hospitals and what they have
11:16
Speaker 3: to do under abortion bands. California's lawsuit doesn't involve an
11:21
Speaker 3: abortion ban, but does involve the question of what is
11:23
Speaker 3: the contours of MTALLA. What kind of protections can people
11:27
Speaker 3: who are pregnant expect when they go to an emergency room.
11:31
Speaker 3: In blue states and red states alike.
11:34
Speaker 2: There are a lot of states where abortion will be
11:37
Speaker 2: on the ballot. How much do you think abortion will
11:41
Speaker 2: play in the election?
11:43
Speaker 3: I mean, abortion seems to be playing a role in
11:46
Speaker 3: motivating voters both to vote and to vote in favor
11:50
Speaker 3: of abortion rights. I think it's essential that we understand
11:53
Speaker 3: that abortion rights are at play at both the federal
11:56
Speaker 3: and the state levels. So even states that have ballid
11:59
Speaker 3: in issue to protect abortion are of course subject to
12:03
Speaker 3: federal jurisdiction. And if we have a second Trump administration,
12:06
Speaker 3: the Trump campaign in Project twenty twenty five have made
12:10
Speaker 3: very clear that a national abortion ban is a goal
12:14
Speaker 3: and that the Comstock Act could act as a national
12:18
Speaker 3: abortion ban. So I think it's important to think about
12:21
Speaker 3: the states, think about what protections they could put in
12:23
Speaker 3: place for abortion or impediments to abortions. But we live
12:27
Speaker 3: in a federal system, which means what happens at the
12:29
Speaker 3: federal level matters quite a lot for access to healthcare.
12:32
Speaker 2: So much is at stake in this election. Thanks so much,
12:35
Speaker 2: Liz Best. Professor Elizabeth Zepper of the University of Texas
12:39
Speaker 2: Law School. Coming up next. Lawsuits are piling up over
12:43
Speaker 2: election rules. This is Bloomberg. The lawsuits range from disputes
12:50
Speaker 2: over mail in ballots and purging voter roles to how
12:54
Speaker 2: to run the voting and finalize ballot counts. Republicans have
12:58
Speaker 2: filed a landslide of elect election lawsuits in more than
13:02
Speaker 2: half the states to challenge voting rules and election processes,
13:06
Speaker 2: but there's a clearer concentration of lawsuits in swing states
13:10
Speaker 2: like Arizona, Georgia, Michigan, Nevada, and Pennsylvania, perhaps sowing more
13:16
Speaker 2: confusion before the election than anything else. Joining me to
13:20
Speaker 2: clear up the confusion is elections law expert Derek Muller,
13:24
Speaker 2: a professor at Notre Dame Law School. Derek, the Republicans
13:28
Speaker 2: have been filing lawsuits across the country. Is there anything
13:32
Speaker 2: different about these lawsuits than in other years, either in
13:37
Speaker 2: numbers or in the kind of lawsuits?
13:40
Speaker 1: Yeah, I mean, I think the rnc's lawsuits earlier this year.
13:44
Speaker 1: There's sort of a trunch of them that they were
13:45
Speaker 1: filing at the beginning of twenty twenty four. I think
13:47
Speaker 1: the theme was we want to file these before the
13:50
Speaker 1: elections so that were not caught flat footed after the election.
13:53
Speaker 1: There are obviously lots of disputes about changes to election
13:56
Speaker 1: rules in twenty twenty, and some challenges that arose in
13:59
Speaker 1: states like Sylvania about how they were counting apps and
14:02
Speaker 1: tee ballots, and then some of those roads too late
14:04
Speaker 1: in the game, it becomes just unrealistic to seek a remedy.
14:07
Speaker 1: There's not adequate time to evaluate the measures. So I
14:10
Speaker 1: mean the rnc's efforts here sometimes intervening cases, sometimes trying
14:14
Speaker 1: to protect existing laws, and other times filing lawsuits. The
14:17
Speaker 1: challenge laws is a sort of step to stage ahead
14:20
Speaker 1: of the elections. That I mean, even if you lose,
14:22
Speaker 1: you had your day in court, as opposed to the
14:23
Speaker 1: case being thrown out altogether. So there's a question. We're
14:26
Speaker 1: seeing high volume of cases being filed, but in some
14:29
Speaker 1: respects it's less than twenty twenty. I mean, in twenty
14:32
Speaker 1: twenty we had so many changes because of COVID, so
14:34
Speaker 1: many late breaking changes by legislatures or by state executives
14:37
Speaker 1: or people suing to say that the executive should have
14:39
Speaker 1: done something. The executive shouldn't have done something, whatever it
14:42
Speaker 1: might be. And so we definitely see a good chunk
14:45
Speaker 1: of cases this year, but in some respects not nearly
14:47
Speaker 1: the volume we saw in twenty twenty.
14:49
Speaker 2: Do you go along with the theory I've heard espouse
14:53
Speaker 2: that these suits lay the groundwork for if Trump or
14:57
Speaker 2: Republicans lose the election, lease suits to the groundwork for
15:01
Speaker 2: more suits challenging the election results.
15:05
Speaker 1: So I don't know how much it can lay the
15:06
Speaker 1: groundwork for our results. If you lose before the election,
15:09
Speaker 1: it seems hard to say that you're somehow going to
15:11
Speaker 1: file a lawsuit to win after the election, or if
15:13
Speaker 1: you've filed the claim before the election and the court
15:16
Speaker 1: kind of passes on it. I suppose there are certain
15:18
Speaker 1: circumstances where they might segregate the ballots and then maybe
15:22
Speaker 1: you have a dispute to resolve after the election. So
15:24
Speaker 1: that happened in Pennsylvania in twenty twenty, where there was
15:27
Speaker 1: a dispute out of the Pennsylvania Supreme Court about changing
15:30
Speaker 1: the receipt that line for apps and tee ballots by
15:34
Speaker 1: three days. Supreme Court issue in order sort of asking
15:36
Speaker 1: Pennsylvania to segregate those ballots and hold them off to
15:39
Speaker 1: the side. I mean, it was never resolved because there
15:40
Speaker 1: was really no dispute at the end of the day
15:42
Speaker 1: about who won the election. That balotsowin't make the difference.
15:44
Speaker 1: So maybe we'll see that in places, but I'm not sure.
15:47
Speaker 1: I think probably the more concerning thing is obviously that
15:49
Speaker 1: you sue, you file up lawsuits, even if you lose.
15:52
Speaker 1: You sort of have this sort of dissension or dissatisfaction
15:54
Speaker 1: about some of the allegations and the complaint, and that
15:56
Speaker 1: people are worried at the end of the day about
15:58
Speaker 1: the legitimacy of the outcome, doubting its legitimacy. But I'm
16:01
Speaker 1: not sure how viable sort of pre election lawsuits are
16:05
Speaker 1: going to be for post election challenges. If you win,
16:08
Speaker 1: you shouldn't have a challenge to file, and if you lose,
16:10
Speaker 1: it's not clear the challenge would succeed after the election.
16:12
Speaker 2: So let's go through some of the challenges in different states.
16:16
Speaker 2: You mentioned Pennsylvania, Republicans have been targeting mail in ballots.
16:20
Speaker 2: Is it proven that Democrats vote more by mail in
16:24
Speaker 2: ballots than Republicans.
16:26
Speaker 1: Well, the conventional wisdom about four and a half years
16:29
Speaker 1: ago is the Republicans used absentee ballots more than Democrats.
16:32
Speaker 1: You can see military personnality to the elderly who heavily
16:35
Speaker 1: relied on absentee ballots. It's why Florida had such extensive
16:38
Speaker 1: absentee ballots. There's evidence that, you know, minority populations are
16:42
Speaker 1: more distrustful of the postal service, and so they would
16:45
Speaker 1: prefer to vote in person. And then COVID sort of
16:47
Speaker 1: flipped all of that. Democrats thought that absentee ballots were
16:50
Speaker 1: the safe way of extending voting to everybody, and then
16:53
Speaker 1: Republicans insist that it was safe to vote in person,
16:55
Speaker 1: and somehow absent ballots have become rife with fraud. So
16:58
Speaker 1: I think sometimes you've seen that in version. It certainly
17:00
Speaker 1: played out in twenty twenty. I certainly don't think it's
17:02
Speaker 1: as dramatic in twenty twenty four, if it exists at all,
17:06
Speaker 1: I think there's still something in the water for Republicans
17:09
Speaker 1: who are told to vote in person and not vote absentee,
17:12
Speaker 1: or doubts about the appsentee systems. That's probably suppressing turnout.
17:15
Speaker 1: You know, Republicans suppressing their own turnout by refusing to
17:18
Speaker 1: lean into absentee ballots. But at the same time, Democratic
17:21
Speaker 1: requests are down too. I mean, we don't have as
17:23
Speaker 1: robust absentee ballots in some places as we might have
17:26
Speaker 1: seen during COVID during the pandemic, so people are returning
17:30
Speaker 1: more to heading back to the polling place. And again
17:32
Speaker 1: some states they clamp down a little bit on some
17:34
Speaker 1: of those absentee notices. You're not automatically eligible for appsentees
17:37
Speaker 1: in Florida anymore. You have to request them every two years,
17:40
Speaker 1: things like that. So I think we're going to see
17:42
Speaker 1: it come closer to parody. But it does seem that
17:44
Speaker 1: Democrats are more inclined to use absentee ballots. Just the
17:48
Speaker 1: question of how significant that desparity is in election cycles
17:52
Speaker 1: like this one.
17:53
Speaker 2: So Republicans, according to the New York Times, have filed
17:55
Speaker 2: more than twenty lawsuits related to mail in voting, and
18:00
Speaker 2: in Pennsylvania, they argued that voters should not be notified
18:04
Speaker 2: of any errors in their mail in ballot, nor be
18:07
Speaker 2: allowed to fix them. Do you think that that will succeed?
18:11
Speaker 1: Right? So, I think there are opportunities to cure ballots
18:15
Speaker 1: and their processes in each state to do so. But
18:17
Speaker 1: I think The key here is in this law suit
18:19
Speaker 1: in Pennsylvania is that you have all these different counties
18:21
Speaker 1: doing all different things. And in some counties, the county
18:24
Speaker 1: clerk gets your absentee ballot, it's missing a signature, it's
18:28
Speaker 1: missing the date. You know, it has your spouse's signature
18:30
Speaker 1: instead of your signature on or whatever it might be.
18:32
Speaker 1: And the county calls you up that same day and
18:34
Speaker 1: leave the message in your cell phone says, hey, just
18:37
Speaker 1: so you know your ballots is defective, you need to
18:39
Speaker 1: come cure it, come down to the county and can
18:41
Speaker 1: do it. And other counties don't do that, don't do
18:43
Speaker 1: that at all. And there's a question of what state
18:45
Speaker 1: law requires and in some respects, like I think there's
18:48
Speaker 1: trade offs to think about here. On the one hand,
18:50
Speaker 1: you can say, listen that the absentee system shouldn't be
18:54
Speaker 1: this process of sort of bespoke get out the vote
18:57
Speaker 1: efforts from county clerks. On the other hand, you say, well,
19:00
Speaker 1: it's reasonable for county clerks to want to make sure
19:02
Speaker 1: that the paperwork is complete, just does any other paperwork
19:05
Speaker 1: you might file at the county where they're going to say, hey,
19:07
Speaker 1: you screwed something up on don't you come fix it.
19:09
Speaker 1: But you know, I think the key out of this
19:12
Speaker 1: is that we want consistency across the state. And I
19:14
Speaker 1: think Republicans are going to want to say, no, the
19:17
Speaker 1: law doesn't permit this. We need to have to kind
19:19
Speaker 1: of strict compliance and no ability to notify. And Democrats
19:22
Speaker 1: are going to say, well, no, the counties should be
19:23
Speaker 1: able to notify. I should notify these things. But you know,
19:26
Speaker 1: one of the more troubling things is to see this
19:27
Speaker 1: inconsistency playing out where in some counties it's one way,
19:30
Speaker 1: in other counties it's another way. So I don't know
19:32
Speaker 1: how these lawsuits are going to play out at the
19:34
Speaker 1: state wide level. Part of this is a technical matter
19:37
Speaker 1: of what state law authorizes or doesn't authorize county clerks
19:41
Speaker 1: to do, where discretion lies, things like that. But we'll
19:44
Speaker 1: see as this one plays out whether or not some
19:47
Speaker 1: uniform guidance is given.
19:48
Speaker 2: Is it an indication Republicans won a similar case where
19:51
Speaker 2: the Supreme Court rule that the ballots that are missing
19:54
Speaker 2: dates on the outer envelopes couldn't be counted.
19:57
Speaker 1: Yeah, So that Pennsylvania case, again, it really is a
20:00
Speaker 1: case thrown out on procedural grounds. Because the plaintiffs in
20:04
Speaker 1: that case really they see the Secretary of State, but
20:06
Speaker 1: also two counties, just two counties, and maybe not surprisingly,
20:10
Speaker 1: Democrats sued the most overwhelmingly to Democratic counties in the
20:13
Speaker 1: state to say you should count these ballots, and the
20:16
Speaker 1: Supreme Court, in a divided order, said, look, you really
20:19
Speaker 1: needed to bring all of the counties in here. I
20:21
Speaker 1: think it's laudable to think about wanting consistency. Right, either
20:25
Speaker 1: they should all count or they all shouldn't count, but
20:26
Speaker 1: there's going to be a consistent rule across the state. Now,
20:29
Speaker 1: I mean here it is, you know, the first week
20:32
Speaker 1: of October, and we're still engaged in litigation that we've
20:35
Speaker 1: known there have been problems about in Pennsylvania for two
20:37
Speaker 1: four six years, and again we're at the eleventh hour
20:40
Speaker 1: litigating these issues. But yeah, we're watching Republicans and Democrats
20:43
Speaker 1: fighting not just about the interpretation of the law, but
20:45
Speaker 1: how broadly it applies across a given state.
20:48
Speaker 2: So let's go to Mississippi, a state that doesn't seem
20:52
Speaker 2: to be in question, but the Republican National Committee and
20:56
Speaker 2: the Mississippi Republican Party are challenging Mississippi's on late arriving
21:01
Speaker 2: mail in ballots. I mean, this issue I think was litigated,
21:06
Speaker 2: has been litigated before in other states. Is there a
21:09
Speaker 2: particular significance to this case in Mississippi?
21:14
Speaker 1: Right, So the focus here is to say that the
21:16
Speaker 1: federal election statute that sets the first Tuesday after the
21:20
Speaker 1: first Monday November's election day requires all ballots to come
21:24
Speaker 1: in by that day. And you've seen occasional litigation, but
21:27
Speaker 1: in twenty twenty, in particular, some of the litigation was
21:29
Speaker 1: about some of the late changes to the rules or
21:31
Speaker 1: ballots without a postmark, and whether or not those that
21:34
Speaker 1: came in three days after the election could still be counted,
21:38
Speaker 1: you know, because there's at least some ambiguity about whether
21:41
Speaker 1: or not they came in in the deadline, whatever it
21:44
Speaker 1: might be. But here, by testing it as a federal
21:46
Speaker 1: law issue, you're not dealing with state specific guidelines. And
21:49
Speaker 1: suing a Mississippi, you know, is trying to send a
21:53
Speaker 1: signal by suing in the Fifth Circuit, which is one
21:55
Speaker 1: of the more conservative courts of appeals in the country.
21:59
Speaker 1: And you know that case is now on appeal in
22:00
Speaker 1: the Fifth Circuit in front of a pretty conservative panel
22:03
Speaker 1: to say, well, maybe if we can establish this precedent here,
22:06
Speaker 1: we can also establish this precedent nationwide, and this could
22:09
Speaker 1: affect hundreds of thousands of votes and maybe hundreds of
22:12
Speaker 1: thousand votes in state like California alone, in addition to
22:14
Speaker 1: other jurisdictions that might accept ballots after election day. So
22:18
Speaker 1: some challenges I think on the merits. You know, states
22:21
Speaker 1: have long accepted ballots before election day and treated them
22:24
Speaker 1: as well, we're just holding them and then they're actually
22:27
Speaker 1: cast on election day. Could you say the same thing
22:29
Speaker 1: is true for ballots that are just in the postal
22:31
Speaker 1: system for a couple of days before they land at
22:35
Speaker 1: the county, as long as they have an adequate postmark,
22:37
Speaker 1: things like that. But the effort here is to sue
22:39
Speaker 1: in the most sort of favorable jurisdiction and try to
22:42
Speaker 1: secure a win that maybe the Supreme Court has to
22:44
Speaker 1: take or that maybe can be carried across to other states.
22:47
Speaker 1: So we're waiting to see how the Fifth Circuit rules
22:49
Speaker 1: on that one.
22:49
Speaker 2: The Fifth Circuit, you said, one of the most I
22:51
Speaker 2: always say the most the most conservatives.
22:55
Speaker 1: That's all. It depends on your metrics, right, I mean,
22:56
Speaker 1: there are more Republican appointed judges in the eighth circle,
23:00
Speaker 1: but you know, the fifth circuit maybe has more panels
23:02
Speaker 1: that are likely to push the law into the some
23:06
Speaker 1: of the most conservative directions.
23:07
Speaker 3: I suppose I agree with that.
23:09
Speaker 2: And coming up next on the Bloomberg Law Show, I'll
23:12
Speaker 2: continue this conversation with Professor Derek Muller of Notre Dame
23:16
Speaker 2: Law School. We'll talk about Republican efforts to purge the
23:19
Speaker 2: voter rolls in several states. The Republican National Committee says
23:24
Speaker 2: it's involved in more than one hundred and twenty lawsuits
23:27
Speaker 2: in twenty six states in an aggressive attempt to challenge
23:31
Speaker 2: voting rules and election processes. Before November fifth, I've been
23:35
Speaker 2: talking to elections law expert Derek Muller, a professor at
23:38
Speaker 2: Notre Dame Law School. So, Derek, one of the things
23:41
Speaker 2: we hear Republicans complain about over and over, particularly Donald Trump,
23:47
Speaker 2: is that ineligible people are voting. Illegal immigrants are voting.
23:51
Speaker 2: Dead people are voting, people are voting twice. So in
23:55
Speaker 2: some states they're suing to try to purge the voter rolls.
23:59
Speaker 2: I think the thought is one of the states right
24:01
Speaker 2: where they're trying to purge the voter rolls.
24:05
Speaker 1: There are issues all over the country. I mean, so
24:08
Speaker 1: part of it is in theory you're not supposed to
24:10
Speaker 1: engage in some of this routine list maintenance within ninety
24:12
Speaker 1: days of an election under federal law. But there's also
24:15
Speaker 1: some questions about like, well some of these issues might
24:18
Speaker 1: have been held up earlier, and questions about eligibility. And
24:21
Speaker 1: there's no question, I mean, every state has ineligible voters
24:24
Speaker 1: on its photo roles. That's just a fact of life.
24:26
Speaker 1: When you die, your name isn't immediately removed. It's usually
24:30
Speaker 1: removed pretty quickly, often within a month, but not immediately.
24:33
Speaker 1: If you move, there might not be evidence that you've
24:36
Speaker 1: moved for some time. So there's lots of questions that
24:38
Speaker 1: can arise for these voter rolls, and states have list
24:41
Speaker 1: maintenance procedures pursue into federal law that they're kind of
24:45
Speaker 1: obligated to undertake to try to make sure those photo
24:47
Speaker 1: roles are as clean as possible, you know. But at
24:49
Speaker 1: the same time, you can think sometimes these are a
24:51
Speaker 1: little bit overstated. In most states, if you fail to
24:54
Speaker 1: vote for an election or two and there are other
24:56
Speaker 1: contingencies than there, they'll move you from active status to
24:58
Speaker 1: inactive status, and so inactive voters have to go through
25:02
Speaker 1: an additional sort of proof of residency requirement before they
25:05
Speaker 1: can move back to active status. So even though the
25:07
Speaker 1: voter roules might be bloated in some places, you know,
25:10
Speaker 1: you could say, well, there's a number of inactive voters here.
25:13
Speaker 1: Maybe they're ineligible, in which case they're not going to vote,
25:15
Speaker 1: and maybe they're eligible, in which case they can prove
25:17
Speaker 1: it and get their names, you know, moved off of
25:19
Speaker 1: one list of the other. So you'll see occasional claims
25:21
Speaker 1: about hundreds of thousands of voters removed from the register
25:25
Speaker 1: in various states. And no question that states have different
25:28
Speaker 1: levels of scrutiny that they give in different aggression that
25:31
Speaker 1: they have in terms of keeping those lists clean. But
25:34
Speaker 1: you know, at the end of the day, I think
25:36
Speaker 1: there are some occasional errors that can be made with
25:39
Speaker 1: these ballots. In particular, and states that automatically mail absentee
25:43
Speaker 1: voters a ballot, there are concerns that if your voter
25:46
Speaker 1: roles aren't clean and you're mailing everyone on the list
25:49
Speaker 1: a ballot, like in California, it's going to get to
25:51
Speaker 1: a non trivial number of ineligible voters. But you know,
25:54
Speaker 1: on the flip side. In most states, if you don't
25:56
Speaker 1: have that, or if you have some good procedures, sometimes
25:58
Speaker 1: you're just fighting kind of clean up issues. You know,
26:01
Speaker 1: how accurate doesn't have to be in a given moment
26:03
Speaker 1: to keep people who are eligible on the list and
26:06
Speaker 1: take off the ineligible from the list. So we're seeing
26:09
Speaker 1: these sort of battles play out. It's Nevada, it's Arizona.
26:12
Speaker 1: There's all kinds of places where these things are happening.
26:15
Speaker 1: And it's a delicate balance to make sure that we're
26:17
Speaker 1: keeping the roles clean for efficiency purposes and keeping eligible
26:20
Speaker 1: votes on there while not being so aggressive that, you know,
26:23
Speaker 1: if you fail to show up to an election, we're
26:24
Speaker 1: somehow taking your name off the list or whatever it
26:27
Speaker 1: might be. So these are ongoing issues that have been
26:30
Speaker 1: happening for years in the federal court.
26:32
Speaker 2: So I'm wondering it's in Arizona that America's first legal
26:37
Speaker 2: foundation is suing because they want the court to enforce
26:43
Speaker 2: a list of twenty four orders that go with their
26:45
Speaker 2: interpretation of election law and correct any errors, et cetera.
26:49
Speaker 2: I mean, it seems like it's a very fact intensive
26:53
Speaker 2: kind of examination. Is that a trend in litigation or not.
26:59
Speaker 1: Yeah, I mean, I think America First is being pretty
27:01
Speaker 1: aggressive on this is I think Judicial Watch. There's some
27:03
Speaker 1: other organizations you can find that have tried to get
27:05
Speaker 1: states to enforce their own motor registration procedures or list
27:08
Speaker 1: maintenance procedures over the years. And again you can say,
27:12
Speaker 1: I think the State of Arizona's going to come back
27:14
Speaker 1: in a very fact contentsive way as you indicated you
27:16
Speaker 1: and to say, look, we are doing this. It might
27:19
Speaker 1: not be on the timeline you want. It might not
27:21
Speaker 1: be with the level of scrutiny that you're suggesting. You know,
27:25
Speaker 1: you want us to look at, you know, this kind
27:26
Speaker 1: of birth date and middle initial, we're looking at the
27:29
Speaker 1: full middle name or whatever it might be. There are
27:32
Speaker 1: ways of sort of doing the verification checks. There's ways
27:34
Speaker 1: in which there's administrative deference given to say we're going
27:38
Speaker 1: to purge maybe every coreer when somebody wants you to
27:41
Speaker 1: purge every month, or whatever it might be. So these
27:44
Speaker 1: can be really specific minutia of is there an administrative
27:48
Speaker 1: guide in the state that's validly promulgated by the Secretary
27:51
Speaker 1: of State about what you can and can't do in
27:54
Speaker 1: these circumstances. Are these things just left the discretion of
27:57
Speaker 1: election officials under state law, or if it's discretion, are
28:00
Speaker 1: these officials abusing their discretion by so flagrantly ignoring what
28:04
Speaker 1: the state law requires. So it's highly fact intensive, and
28:08
Speaker 1: you know, I'm not confident in any particular outcome in
28:11
Speaker 1: any of these cases, but it's really sort of picking
28:14
Speaker 1: at some of the edges of a lot of these issues.
28:17
Speaker 1: For the most part, in these jurisdictions, it's usually not
28:19
Speaker 1: sort of a wholesale ignoring of election law. Under state law, again,
28:23
Speaker 1: secretaries of the state have every incentive to try to
28:25
Speaker 1: keep the lists clean. It's a question more of some
28:27
Speaker 1: of the pragmatics and about what you think the most
28:29
Speaker 1: effective means are. To be frank right, the plaintiffs in
28:31
Speaker 1: these cases have a different thought about what we most effective,
28:34
Speaker 1: and if they were the running the secretary of State's
28:35
Speaker 1: office and lost the last election in Arizona, for instance,
28:38
Speaker 1: you know they might have had different procedures in place.
28:40
Speaker 1: But these are some of the challenges that you have
28:42
Speaker 1: when something is typically left to the executive and then
28:45
Speaker 1: you sort of have these lawsuits coming in over the
28:47
Speaker 1: top insisting things should be done in a different way.
28:49
Speaker 2: You know, there was a lot of questioning of how
28:52
Speaker 2: the changes in election boards and different changes at that
28:56
Speaker 2: level would affect the counting, etc. And there's a lawsuit
29:01
Speaker 2: in Georgia challenging the state election boards decision to allow
29:05
Speaker 2: its members to conduct a reasonable inquiry into an election's
29:09
Speaker 2: results before certifying them. I'm not sure what a reasonable
29:13
Speaker 2: inquiry is and how that differs from what they have
29:16
Speaker 2: been doing.
29:17
Speaker 1: Yeah, I mean, that's I think the real question. There's
29:20
Speaker 1: already state law that kind of authorizes this. The election
29:24
Speaker 1: board adds this language into the administrative code, but it's
29:31
Speaker 1: not formally out of state law. It something you could
29:33
Speaker 1: probably infer from state law, but not formally in state law.
29:36
Speaker 1: Then it's not something that is specifically defined even in
29:39
Speaker 1: the administrative code. So you can imagine situations where an
29:42
Speaker 1: election boards the elections on Tuesday and the board has
29:44
Speaker 1: to certify by Monday. That's six days. So whatever reasonable
29:47
Speaker 1: inquirer mean, it can't mean a whole lot. But you
29:50
Speaker 1: can imagine you have eighteen precincts and you only get
29:53
Speaker 1: seventeen sets of results, and you'd say, well, wait a minute,
29:56
Speaker 1: let's go find out where that eighteenth sheet is. I
29:58
Speaker 1: think that's a reasonable inquae. One of the precincts reports
30:02
Speaker 1: zero votes cast a lot, let's go figure out what happened.
30:05
Speaker 1: Or one precinct indicates a million votes cast, we probably
30:08
Speaker 1: want to look into that too. So there's ways in
30:10
Speaker 1: which you could have imagined quite benign and I think
30:12
Speaker 1: quite reasonable, ways in which the board, before it feels
30:15
Speaker 1: like it can certify a result, wants to make sure
30:17
Speaker 1: it has all the paperwork in front of it. The
30:18
Speaker 1: real challenge is you have an undefined term, you've injected
30:21
Speaker 1: it in the administrative code. Is this going to give
30:23
Speaker 1: some pretext or some coverage to election officials who are saying, no, no,
30:26
Speaker 1: now I get to go, you know, ask for the
30:28
Speaker 1: inside of the voting machines, or now I want to
30:30
Speaker 1: manually tabulate this batch from this precinct because I'm skeptical
30:34
Speaker 1: or whatever it might be. So I think the question
30:36
Speaker 1: is spinning out forward how a phrase like this could
30:40
Speaker 1: be used or misused by election officials going forward. So
30:44
Speaker 1: it's in one sense it's kind of benign on its face.
30:47
Speaker 1: In other sense, it's like, well, it could be used
30:48
Speaker 1: as a pretext, and I think that's what people are
30:50
Speaker 1: concerned about, how it might be used in unknown future situations.
30:54
Speaker 2: Yeah, because I think a fear is that, especially in
30:57
Speaker 2: these close states, in these battle on states that really count,
31:02
Speaker 2: that there'll be some kind of refusal to certify or
31:07
Speaker 2: the boards of elections will mishandle the vote. I mean,
31:11
Speaker 2: there's a lot of concern that at the state level
31:15
Speaker 2: there won't be a fair count.
31:18
Speaker 1: Yeah. I mean I think if you have you have
31:20
Speaker 1: the tabulations from the precincts that are given to the county,
31:23
Speaker 1: and anytime that a county board or any entity is
31:26
Speaker 1: going to change or alter the votes, I mean, you
31:29
Speaker 1: have the before and after numbers. So you know, four
31:32
Speaker 1: years ago, I was in Iowa and there was a
31:35
Speaker 1: congressional district race that was very close and twice precincts
31:39
Speaker 1: in an election that was the site ultimately by six votes.
31:42
Speaker 1: Precincts found mistakes they made in their results as they
31:46
Speaker 1: were going through the canvas, and so they have their
31:48
Speaker 1: first results, the unofficial ones, and then they had to
31:51
Speaker 1: update them with official ones, ones that flipped hundreds of votes.
31:54
Speaker 1: So you have that record, right, you have the sort
31:56
Speaker 1: of before and after, and you have the explanation. So
31:59
Speaker 1: as an electtiontion board does something, you know, it gets
32:02
Speaker 1: the results and we're not going to certify. Well, that's easy.
32:04
Speaker 1: We have the vote total or it says, you know,
32:06
Speaker 1: the vote margin here is Trump by one thousand, but
32:09
Speaker 1: we're going to say it was Trump by eight thousand.
32:11
Speaker 1: So again just making up numbers you have before and
32:14
Speaker 1: after results. So there's typically going to be an easy
32:17
Speaker 1: process if somebody disputes that to go into court and
32:19
Speaker 1: say they didn't certify, can you order them to certify,
32:23
Speaker 1: or if they won't certify court, can you do it
32:25
Speaker 1: for them? They certified this new total where they fiddled
32:29
Speaker 1: with the results, can you go back to the old
32:30
Speaker 1: total because they had no basis in doing so. So
32:33
Speaker 1: I think there's no question that there's concern about meddling
32:37
Speaker 1: an election process, about all terrain totals, about dragging your
32:40
Speaker 1: feet or trying to deny subvert the winner, and that
32:44
Speaker 1: has major political consequences, public perception consequences. I think those
32:48
Speaker 1: are bad things, But I think there's also a strand
32:52
Speaker 1: to think about what's the legal effect of this. At
32:54
Speaker 1: the end of the day, it might delay some certification
32:58
Speaker 1: by a day or two, maybe in some places, but
33:00
Speaker 1: to the extent that the courts step in and say
33:02
Speaker 1: you really have no basis whatsoever to do this, I
33:06
Speaker 1: think you're going to see courts move in swiftly as
33:08
Speaker 1: they have done the last four years when election boards
33:10
Speaker 1: have tried this in the past. Obviously a lot more
33:13
Speaker 1: pressure and a presidential election, but we'll see how it
33:15
Speaker 1: plays out.
33:16
Speaker 2: You're more hopeful than I am.
33:19
Speaker 1: We can anticipate all of the worst case disaster scenarios,
33:24
Speaker 1: there's no question, and think about what those things are
33:26
Speaker 1: supposed to do. But you know, we still have a
33:29
Speaker 1: lot of courts that step in and they you know,
33:32
Speaker 1: you can file as many lawsuits as you want in
33:34
Speaker 1: twenty twenty, it's not going to change the results of
33:36
Speaker 1: the election. You know, you could talk about Georgia where
33:38
Speaker 1: she was on the other foot for Democrats in twenty eighteen,
33:41
Speaker 1: and really there's not going to be a change in
33:43
Speaker 1: the results despite filing lawsuits, whatever it might be. So
33:46
Speaker 1: at the end of the day, the system's pretty resilient.
33:49
Speaker 1: Now again, there's major political questions, there's major public perception
33:54
Speaker 1: questions about democratic legitimacy, and it's not good to have
33:57
Speaker 1: a public that doubts the outcome of the election, or
33:59
Speaker 1: that you have a public officials sewing distrust baselessly because
34:03
Speaker 1: it's a way of fundraising, it's a way of whipping
34:05
Speaker 1: up frenzy. Those are not good things, but there's a
34:09
Speaker 1: piece to say. Listen, at the end of the day,
34:11
Speaker 1: the winner is going to take office and the loser
34:13
Speaker 1: is going to go home, and that's the way the
34:15
Speaker 1: system is supposed to operate. So I'm optimistic on a
34:17
Speaker 1: legal side. I might be less optimistic on the political
34:20
Speaker 1: and public perception side, but there's only so much we
34:23
Speaker 1: can do to control both things.
34:24
Speaker 2: Thank you so much, Derek for your explanations of these
34:28
Speaker 2: often confusing election law issues. That's Professor Derek Muller of
34:32
Speaker 2: Notre Dame Law School, and that's it for this edition
34:35
Speaker 2: of The Bloomberg Law Show. Remember you can always get
34:37
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34:40
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34:45
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