Latest / Bloomberg Law / Question of Noncitizen Voting & NJ Assault Rifle Ban Struck Down

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Question of Noncitizen Voting & NJ Assault Rifle Ban Struck Down · Bloomberg Law

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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: About sixty six hundred non citizens were improperly registered to
0:13
Speaker 2: vote in New Jersey in twenty twenty three in twenty
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Speaker 2: twenty four, and up to four hundred of them went
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Speaker 2: on to improperly cast ballots. Governor Mickey Cheryl blamed a
0:25
Speaker 2: software error in the Motor Vehicle Commission system that registered
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Speaker 2: people to vote even though they had indicated they were
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Speaker 2: non citizens when obtaining drivers' licenses and identification cards.
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Speaker 3: This entire situation is unacceptable. It's unacceptable that the vendor
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Speaker 3: released software with such a glaring error. It's unacceptable that
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Speaker 3: the NBC took a year to get this issue fixed,
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Speaker 3: and it's unacceptable that no one in the previous administration
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Speaker 3: brought this to light, demanded accountability, or took action when
1:00
Speaker 3: it happened years ago.
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Speaker 2: The state is removing ineligible voters from the rolls and
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Speaker 2: replacing the vendor that oversees the system. But this revelation
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Speaker 2: comes less than a week after President Trump and Department
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Speaker 2: of Homeland Security Secretary Mark Wayne Mullen claimed that hundreds
1:19
Speaker 2: of thousands of non citizens are on voter rolls. Across
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Speaker 2: the country and.
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Speaker 4: Just four states, we've identified two hundred and fifty thousand
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Speaker 4: non citizens registered to vote in California and Pennsylvania, New Jersey,
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Speaker 4: and Nevada.
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Speaker 2: My guest is Jonathan Diaz, director of voting Advocacy and
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Speaker 2: Partnerships at the Campaign Legal Center. Jonathan explained what happened
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Speaker 2: in New Jersey.
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Speaker 5: So it appears that there was some sort of technological
1:53
Speaker 5: error in New Jersey's DMV system where about six thousand
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Speaker 5: or so individuals who correctly identified themselves as non citizens.
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Speaker 5: You know, they weren't trying to register to vote, nevertheless,
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Speaker 5: were erroneously registered. New Jersey's election officials and governor made
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Speaker 5: this announcement. They identified this problem, They've directed officials to
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Speaker 5: remove them from the roles. They are fixing the glitch
2:19
Speaker 5: in their driver's license system that caused this problem, and
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Speaker 5: this is I think an example of how the system
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Speaker 5: is supposed to work. The state and local officials who
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Speaker 5: are responsible for overseeing voter registration, identified a problem, made
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Speaker 5: it clear to the public, and announced steps to mitigate
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Speaker 5: the problem. You know, they don't need the federal government
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Speaker 5: to step in and do it for them.
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Speaker 2: The governor said that fewer than four hundred of these
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Speaker 2: non citizens cast ballots. So that means that hundreds of
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Speaker 2: non citizens did cast ballots improperly in the New Jersey elections.
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Speaker 5: So well, I think it's important to remember that more
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Speaker 5: than four point one million ballots were cast in New
3:01
Speaker 5: Jersey in twenty twenty four. So that number, you know,
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Speaker 5: even if it was four hundred in total, that's less
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Speaker 5: than one percent a one percent, it's point zero zero
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Speaker 5: nine percent of the total votes cast in New Jersey
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Speaker 5: in twenty twenty four, which is nowhere near affecting the
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Speaker 5: outcome of any federal election that took place in New
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Speaker 5: Jersey in that year.
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Speaker 2: Will this give ammunition to the Trump administration in its
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Speaker 2: quest to show that there are non citizens on voter
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Speaker 2: rolls and non citizens are voting.
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Speaker 5: You know, it shouldn't, because there's nothing in any of
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Speaker 5: the proposals that the federal government has put forward that
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Speaker 5: would have addressed this scenario. This was a simple case
3:45
Speaker 5: of human error, of technological error. Somebody misprogrammed the system.
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Speaker 5: And so you know, requiring as the Trump administration wants,
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Speaker 5: requiring voters to provide additional proof of citizenship to show
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Speaker 5: a passport or a birth certificate to register to vote
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Speaker 5: wouldn't have stopped this because these people said that they
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Speaker 5: were not citizens, they weren't trying to register to vote.
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Speaker 5: But you know, elections are run by people. Sometimes people
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Speaker 5: make mistakes. Sometimes there is a glitch in the system,
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Speaker 5: and you know, that's why we have safeguards built in
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Speaker 5: to ensure that it can be caught and fixed for
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Speaker 5: the next time. And even in a scenario like this
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Speaker 5: where there was a technological problem that did result in
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Speaker 5: some people being erroneously registered, it's not happening anywhere near
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Speaker 5: in the numbers on the scale that the President and
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Speaker 5: the White House are suggesting that it is. You know,
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Speaker 5: this is a tiny, tiny, tiny percentage of the votes,
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Speaker 5: so small that it doesn't affect the outcome. And so,
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Speaker 5: you know, in my view, this technological error, which is
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Speaker 5: really all that it is, does not justify the kind
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Speaker 5: of draconian restrictions that the Trump administration is proposing for
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Speaker 5: voter registration because those things they wouldn't have solved this problem,
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Speaker 5: and b would have prevented many more people than this
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Speaker 5: who are eligible from actually registering and voting.
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Speaker 2: Mark Wayne Mullen, DHS Secretary, said that in New Jersey
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Speaker 2: reviews found thirty five, one hundred and fifty two non
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Speaker 2: citizens registered. The governor said that we've asked them for
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Speaker 2: any evidence of this where they got that number, who
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Speaker 2: this is. We've received nothing back yet.
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Speaker 5: I don't know where DHS's numbers came from, nor does
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Speaker 5: New Jersey. You know, the announcement from New Jersey's governor
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Speaker 5: today seems to me to be completely unrelated from what
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Speaker 5: DOJ sent them. This was their own investigation into their
5:41
Speaker 5: own system, which every state is doing all the time,
5:44
Speaker 5: and I think that's that's the key takeaway here is
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Speaker 5: that state governments, who are the ones legally responsible for
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Speaker 5: running our elections, are constantly going through their voter registration
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Speaker 5: rules and their election systems to fix errors and to
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Speaker 5: make sure that they are as accurate as is humanly possible.
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Speaker 5: And what they don't need is wild accusations from the
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Speaker 5: federal government based on no evidence that they're doing it wrong.
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Speaker 5: You know, I think this incident in New Jersey shows
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Speaker 5: that states are more than capable of maintaining clean voter
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Speaker 5: roles and addressing the problems as they arise, because you know,
6:23
Speaker 5: we have a very complicated election system and it's totally decentralized.
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Speaker 5: It's run by states and in most important ways, by
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Speaker 5: counties and municipalities. You know, one of the things that
6:34
Speaker 5: makes it so resilient is that we don't have, you know,
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Speaker 5: a single national election infrastructure that could be compromised or
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Speaker 5: you know, have some problem with it that would affect everybody.
6:43
Speaker 5: You know, every state runs its elections slightly differently, so
6:46
Speaker 5: that's a lot of different structures and different systems where
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Speaker 5: there could be a technological issue, or a data entry problem,
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Speaker 5: or just a human mistake. But that's why state officials
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Speaker 5: like you know, the governor and in many places the
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Speaker 5: Secretary of State, the attorney general have oversight authorlorady and
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Speaker 5: are looking into things like this and you know, being
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Speaker 5: transparent about you know, where the system falls short and
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Speaker 5: what they're doing to fix it.
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Speaker 2: So the same software is going to be used for
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Speaker 2: the mid terms because they can't switch it over fast enough.
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Speaker 2: So that leads me to believe that if there's a
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Speaker 2: result in New Jersey that the Trump administration doesn't like,
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Speaker 2: that they'll use this to try to attack the results.
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Speaker 5: I'm sure that no matter what New Jersey officials say
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Speaker 5: or do, that the Trump administration is going to point
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Speaker 5: to this incident and you know, claim that New Jersey's
7:37
Speaker 5: results can't be trusted. But that's why New Jersey, like
7:40
Speaker 5: every state, has audits and recounts and you know, hand
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Speaker 5: marked paper ballots that can be checked after the fact.
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Speaker 5: And you know, that's why they're making this announcement now
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Speaker 5: and removing these ineligible individuals from the roles so that
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Speaker 5: this can't happen again in November. But regardless of what
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Speaker 5: New Jersey does, I expect the White House to use
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Speaker 5: this as ammunition, not just in you know, any claims
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Speaker 5: that they make about the results in November, but also
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Speaker 5: in their push to pass the Save America Act and
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Speaker 5: to enable federal agencies to have a bigger role or
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Speaker 5: take control of certain election administration functions despite their lack
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Speaker 5: of legal authority to do that.
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Speaker 2: I mean, it doesn't seem likely that DA just got
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Speaker 2: the numbers out of thin air. Might some of them
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Speaker 2: be reliable?
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Speaker 5: If you look at the numbers Secretary Mullen, you know,
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Speaker 5: released last week on Friday, and you compare not just
8:36
Speaker 5: these New Jersey numbers, but you know, DHS and the
8:40
Speaker 5: White House released data about a number of states who
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Speaker 5: have voluntarily shared their data with the federal government and
8:47
Speaker 5: the White House, and DHS's numbers for states like Texas
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Speaker 5: and Louisiana are incredibly inflated compared to what those states
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Speaker 5: themselves are reporting. And even Texas reported lower numbers than
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Speaker 5: the White House did about you know, suspected non citizens
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Speaker 5: on their roles and then had to backtrack because they
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Speaker 5: had wrongfully identified naturalized citizens as being ineligible. So whenever
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Speaker 5: a federal or state agency makes you know, inflated claims
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Speaker 5: about huge numbers in the tens of thousands of you know,
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Speaker 5: ineligible registrants, I think we have to look at those
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Speaker 5: with some skepticism because almost inevitably they get walked back,
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Speaker 5: And especially in the case of DHS, there's just nothing
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Speaker 5: that they have given us in terms of where they
9:34
Speaker 5: got their data, what methodology they used. We don't know
9:37
Speaker 5: where those numbers came from. They could have pulled them
9:39
Speaker 5: out of a hat. So if we're going to take
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Speaker 5: those numbers seriously, I think we need a lot more
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Speaker 5: information from DHS about how they came up with them.
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Speaker 2: Coming up next, more about the threats against election officials
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Speaker 2: and the Department of Justice is zero to sixteen in
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Speaker 2: its attempts to get unredacted data roles. This is Bloomberg.
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Speaker 2: Homeland Security Secretary Mark Wayne Mullen advanced an unsubstantiated claim
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Speaker 2: that the federal government has found two hundred and fifty
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Speaker 2: thousand non citizen voters on the roles in several states.
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Speaker 2: Mullen pledged to aggressively monitor public voter lists to pursue
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Speaker 2: potential voter fraud cases before and after the twenty twenty
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Speaker 2: sixth election. He also threatened state officials who don't go
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Speaker 2: along with the administration's election security demands.
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Speaker 4: If the election officials once we gave them the information
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Speaker 4: they need to secure their elections and they chose not to,
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Speaker 4: then those individuals can also be held accountable by fines,
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Speaker 4: by penalties, and even, depending on how far it goes,
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Speaker 4: prison time.
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Speaker 2: What does Mullen want the states to do? Is he
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Speaker 2: demanding that they put their voter rolls through the federal database, which,
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Speaker 2: by the way, using the program was recently blocked by
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Speaker 2: a federal judge over concerns about privacy and wrongful purges
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Speaker 2: of eligible voters.
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Speaker 5: That's a good question. DHS sent letters to these four states,
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Speaker 5: and those letters were pretty tame. They said, you know,
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Speaker 5: DHS had done an analysis and identified suspected, you know,
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Speaker 5: potential non citizens on the rules. Reminded the states that
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Speaker 5: you know, federal law requires them to maintain accurate voter
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Speaker 5: rules and that non citizens are prohibited from voting in
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Speaker 5: US elections. But then otherwise just kind of said, you know,
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Speaker 5: DHS is ready to help you if you need it.
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Speaker 5: The letters were very, very tame. His remarks on Friday
11:40
Speaker 5: were not. And you know, in his speech he did
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Speaker 5: both say that DHS is directing the states to remove
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Speaker 5: all of those individuals from the rules, which number one,
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Speaker 5: DHS doesn't have the authority to direct states to do
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Speaker 5: anything with their voter rules. And number two, the states
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Speaker 5: can't just take thousands of people off the rules because
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Speaker 5: somebody in the federal government them to. There's a process
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Speaker 5: that they have to go through under both state and
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Speaker 5: federal laws to verify those claims. They have to do
12:07
Speaker 5: their due diligence, they have to check. I imagine that
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Speaker 5: the states will they will take this seriously. But Secretary
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Speaker 5: Mullen also, much like Assistant Attorney General Harmy Dillon did
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Speaker 5: a couple of weeks ago, threatened election officials and said
12:20
Speaker 5: that they'll be prosecuted if they don't cooperate with the
12:23
Speaker 5: federal government. And I don't think that's an empty threat.
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Speaker 5: I think that this administration is very willing to lean
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Speaker 5: on its criminal enforcement authority and go after election officials
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Speaker 5: if they don't go along with the administration's policy priorities
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Speaker 5: when it comes to elections. Fortunately, I don't think that
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Speaker 5: those charges would hold up, and election officials have you know,
12:47
Speaker 5: very good counsel kind of across the board have litigated
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Speaker 5: against a lot of them. They know what they're doing.
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Speaker 5: But it is alarming when senior officials in the federal
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Speaker 5: government are threatening state and local election officials with criminal prosecution.
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Speaker 5: You know, it's almost like it's like watching a mob movie.
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Speaker 5: Do what we want or else. And that's just not
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Speaker 5: the relationship that we have seen between the federal government
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Speaker 5: and the states in the past when it comes to elections.
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Speaker 5: And you know, the federal government typically provides resources and
13:16
Speaker 5: support and assistants to state and local election officials in
13:19
Speaker 5: carrying out their responsibilities. But this kind of aggressive posture
13:22
Speaker 5: towards election officials is really something new.
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Speaker 2: As you mentioned, the Justice Department sent letters warning election
13:31
Speaker 2: officials in all fifty states, you know, threatening criminal prosecution.
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Speaker 2: If election officials count any ballots cast by non citizens,
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Speaker 2: what law would they prosecute them under.
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Speaker 5: I mean, there is a federal statute that says that
13:47
Speaker 5: only US citizens can vote in federal elections. I'm not
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Speaker 5: sure that that statute attaches liability to the chief election
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Speaker 5: official of a state. You know, that's the statute that
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Speaker 5: DJ would use to prosecute an individual who while ineligible,
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Speaker 5: And you know, I think that that is reflected in
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Speaker 5: the responses that DOJ got from some of the state
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Speaker 5: election officials, including several Republicans, who did not take kindly
14:13
Speaker 5: to this, you know, explicit threat from the Justice Department.
14:17
Speaker 5: The Secretary of State of Idaho sent a pretty harsh
14:22
Speaker 5: response to the Department of Justice that was made public
14:25
Speaker 5: that basically said, don't bully us. We know what the
14:28
Speaker 5: laws are. It is our job to enforce them. It
14:31
Speaker 5: is our job to carry them out. This is not
14:33
Speaker 5: the way to you get what you want, and this
14:36
Speaker 5: is not how a partnership between government officials is supposed
14:39
Speaker 5: to work. The Lieutenant Governor of Utah, who is the
14:41
Speaker 5: chief election official for that state, similarly had a very
14:45
Speaker 5: kind of angry public response to the Department of Justice
14:49
Speaker 5: sending these threatening letters out, you know, four months out
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Speaker 5: from an election that were not tied to any sort
14:55
Speaker 5: of evidence or any specific investigation. It was the same
14:59
Speaker 5: letter that went out to every state, and so, you know.
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Speaker 1: It's just.
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Speaker 5: It's just political messaging. Really, it's the administration trying to
15:07
Speaker 5: show that they are being tough on this issue. It's
15:10
Speaker 5: you know, people in DOJ and DHS trying to signal
15:13
Speaker 5: to the president that they are taking it seriously. And
15:16
Speaker 5: it's really having an effect on the state and local
15:19
Speaker 5: election officials. Who are the ones being put on the
15:21
Speaker 5: chopping block here, and they're the ones doing all the work.
15:23
Speaker 5: They're the ones maintaining clean voter rules and you know,
15:26
Speaker 5: running elections with no help from the federal government and
15:29
Speaker 5: in fact now just just threats and bullying.
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Speaker 2: I have to say, though, prosecuting election officials because a
15:37
Speaker 2: non citizen votes sounds like an empty threat, because that
15:43
Speaker 2: would be such a difficult prosecution. Of course, the Trump
15:47
Speaker 2: administration has been known to file charges even when the
15:51
Speaker 2: proof is weak.
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Speaker 5: I think you're probably right, But you know, if they
15:55
Speaker 5: do that, you know, election officials jobs don't end on
15:58
Speaker 5: election day, they have lots of responsibilities in the weeks
16:01
Speaker 5: and months that follow to canvass the results, to tabulate
16:05
Speaker 5: the results, They have to do audits and recounts and
16:08
Speaker 5: certify and all of that stuff. And even if they
16:11
Speaker 5: are baseless charges, it takes a lot of time and
16:14
Speaker 5: a lot of resources to defend against prosecution by the
16:17
Speaker 5: federal government. And election officials are already spread very thin
16:23
Speaker 5: as far as resources are concerned, just to do their jobs,
16:26
Speaker 5: just to run the elections. And you know, if you're
16:29
Speaker 5: a secretary of state, or even worse, if you are
16:31
Speaker 5: a county election official with limited resources and you are
16:35
Speaker 5: trying to complete your legal obligations to canvas and tabulate
16:39
Speaker 5: and certify election results, and then all of a sudden,
16:43
Speaker 5: you have to go to a federal courthouse to you know,
16:46
Speaker 5: to an arraignment because DJ has filed criminal charges against you.
16:49
Speaker 5: Even if those charges are ultimately dismissed a few months later,
16:53
Speaker 5: it's a huge resource drain. It's incredibly disruptive to the
16:56
Speaker 5: administration of the election and it's you know, emotionally and
17:00
Speaker 5: physically taxing for election officials who haven't done anything wrong.
17:03
Speaker 5: So even if ultimately the threats are empty, and DJ
17:06
Speaker 5: is not able to convict anybody of anything, even just
17:10
Speaker 5: the threat of prosecution or charges that maybe ultimately get dropped.
17:15
Speaker 5: That puts a huge strain on election officials, on the
17:18
Speaker 5: election system. And I worry that DJ is trying, you know,
17:23
Speaker 5: along with the DHS and the White House, to undermine
17:27
Speaker 5: the election system, both by putting this pressure on election
17:30
Speaker 5: officials and by trying to convince the public of their
17:34
Speaker 5: imagined problems with how our elections are run in an
17:37
Speaker 5: effort to make it easier for them to overturn the
17:40
Speaker 5: results if they don't like them.
17:41
Speaker 2: So, do you think this would be then a repeat
17:44
Speaker 2: of twenty twenty where Trump and his allies went to
17:48
Speaker 2: court and claim the election was fraudulent or do you
17:53
Speaker 2: anticipate something different or even worse.
17:57
Speaker 5: It's hard to say, and I don't want to speculate
17:59
Speaker 5: too much because I don't want to just like spin out.
18:02
Speaker 5: You know, every single possibility in a way that you
18:05
Speaker 5: know might might scare people with things that are not realistic.
18:08
Speaker 5: But I think the big difference between now and twenty
18:11
Speaker 5: twenty is that, you know, during the twenty twenty election,
18:15
Speaker 5: most if not all, of the challenges to the results
18:18
Speaker 5: came from outside of the government. It was the campaign
18:22
Speaker 5: side of things that was really kind of driving the
18:25
Speaker 5: car there, because you had people like Bill Barr, you know,
18:30
Speaker 5: who was a loyal foot soldier in the Trump administration
18:33
Speaker 5: for much much of his tenure, but who drew the
18:36
Speaker 5: line at you know, getting the Justice Department involved in
18:40
Speaker 5: challenging the results with no evidence. I don't think Todd
18:43
Speaker 5: Blanche would have the same hesitations. I don't think that
18:47
Speaker 5: cash Patel is going to be a guard rail here
18:51
Speaker 5: and you know, keep the FBI from getting involved in
18:55
Speaker 5: pursuing whatever false claims the president wants to pursue. Donald
18:59
Speaker 5: Trump has much more unified control of his party, of
19:04
Speaker 5: his government now than he did in twenty twenty. And
19:07
Speaker 5: we've already seen the law enforcement arms of the federal government,
19:11
Speaker 5: both through dj and DHS, already leaning on election officials
19:15
Speaker 5: and trying to get themselves involved in election administration in
19:19
Speaker 5: ways that they didn't during the first Trump term. He's
19:21
Speaker 5: issued executive orders about elections this time around, and he
19:24
Speaker 5: didn't do that last time. You know, those orders have
19:27
Speaker 5: been largely blocked by the courts. But he's doing a
19:30
Speaker 5: lot more with different arms of the federal government already.
19:34
Speaker 5: So you know, if the midterms don't go his way
19:37
Speaker 5: or his party's way, I expect that there'll be a
19:40
Speaker 5: lot of spaghetti thrown at the wall. I think he's
19:42
Speaker 5: going to try, you know, and pull every lever at
19:44
Speaker 5: his disposal to change those results. And the reason he's
19:47
Speaker 5: doing that is ultimately he doesn't have any power to
19:50
Speaker 5: decide how the midterms go. That is up to the voters,
19:53
Speaker 5: and so you know, he's getting increasingly desperate. I think
19:57
Speaker 5: the speech and the declassification of documents and everything that's
20:00
Speaker 5: happened in the last week is proof of that. But
20:02
Speaker 5: you know, ultimately it is going to be up to
20:05
Speaker 5: up to voters, up to the public, up to you know,
20:08
Speaker 5: organizations like Campaign Legal Center who are litigating these issues
20:12
Speaker 5: to ensure that the will of the voters ultimately prevails
20:16
Speaker 5: in November, no matter which way it goes.
20:18
Speaker 2: Let's turn now to the Department of Justice's quest to
20:23
Speaker 2: get states to hand over unredacted voter roles. Doj is
20:30
Speaker 2: oh in sixteen in that quest, So sixteen consecutive losses
20:36
Speaker 2: in court handed to them by both Democratic and Republican appointees.
20:43
Speaker 2: Why does the Justice Department want these unredacted voter roles.
20:47
Speaker 5: It's a good question, because the Justice Department doesn't really
20:51
Speaker 5: have a role when it comes to voter registration. You know,
20:56
Speaker 5: I think that it has become apparent over the last
21:00
Speaker 5: several months, year and a half that the administration is
21:05
Speaker 5: engaged in an increasingly desperate attempt to manufacture some kind
21:12
Speaker 5: of evidence to support the president's false claims about elections.
21:15
Speaker 5: And the folks that DOJ are either convinced or just
21:20
Speaker 5: trying to make the president happy, but they're convinced that
21:23
Speaker 5: they will be able to find evidence of illegal registrations
21:28
Speaker 5: or non citizens on the rules if they can just
21:30
Speaker 5: get their hands on the state's unredacted voter files and
21:34
Speaker 5: waive some kind of magic wand to investigate all of
21:37
Speaker 5: those millions of voters. But unfortunately for them, the federal
21:41
Speaker 5: government has no legal authorization to obtain those files or
21:45
Speaker 5: do anything with them. And so when thirty states and
21:48
Speaker 5: DC refused to turn over their citizens private data to
21:52
Speaker 5: the federal government, DOJ sued. They filed thirty one lawsuits
21:56
Speaker 5: and I think as of this morning they have lost
21:59
Speaker 5: sixteen of those and one zero.
22:01
Speaker 2: Yes, So that's sixteen consecutive losses in court, and that
22:07
Speaker 2: was handed down by both Democratic and Republican appointed judges,
22:11
Speaker 2: a bad streak and one loss at the Sixth Circuit.
22:14
Speaker 2: So what are the reasons that judges across the ideological
22:18
Speaker 2: spectrum are turning DOJ down.
22:21
Speaker 5: Well, so there's a few different rationales that the judges
22:23
Speaker 5: are offering. But you're right that it has been consistent
22:27
Speaker 5: in all of the cases that have reached your decision
22:29
Speaker 5: so far from judges from across the ideological spectrum, including
22:33
Speaker 5: judges appointed by Donald Trump. But you know, DJ is
22:36
Speaker 5: claiming that it needs the full unredacted voter files to
22:42
Speaker 5: enforce either the Civil Rights Act or the Help America
22:45
Speaker 5: Vote Act, you know, two federal statutes that that DOJ
22:47
Speaker 5: does have the responsibility to enforce. But the judges are just.
22:50
Speaker 1: Not buying it.
22:52
Speaker 5: You know, DOJ is giving conflicting rationales in court that
22:57
Speaker 5: are inconsistent with the purpose of the statute and their
23:01
Speaker 5: basis for the request. These requests are highly unusual. You know,
23:04
Speaker 5: DJ has enforced these statutes for decades without making these
23:08
Speaker 5: kinds of requests. And it's clear based on other kind
23:12
Speaker 5: of out of court statements that DOJ leaders and folks
23:14
Speaker 5: at DHS have made that the real purpose for DOJ
23:18
Speaker 5: seeking this information is to not just attempt to verify
23:24
Speaker 5: the citizenship of voter registrants, which is again not DOJ's job,
23:28
Speaker 5: but also to facilitate immigration enforcement. And DOJ just does
23:32
Speaker 5: not have the legal authority to demand this data from
23:37
Speaker 5: the States and certainly doesn't have the legal authority to
23:41
Speaker 5: do what they are planning to do with it.
23:45
Speaker 2: So in that Sixth Circuit decision, the Sixth Circuit has
23:49
Speaker 2: a conservative majority. It was two to one with the
23:52
Speaker 2: dissenting judge at Trump appoint d. The DOJ is asking
23:56
Speaker 2: for rehearing by the full sixth Circuit, where the balance
24:01
Speaker 2: will be Republican appointees. I assume, so my things change
24:07
Speaker 2: when the full sixth Circuit here's the case.
24:10
Speaker 5: It's certainly possible. And despite their you know, sixteen district
24:14
Speaker 5: court losses, they've also appealed many of those to other
24:18
Speaker 5: circuit courts, So, you know, the first, the fourth, the seventh,
24:21
Speaker 5: the ninth circuit courts across the country are now hearing
24:23
Speaker 5: these appeals. But I think that the Trump administration is
24:28
Speaker 5: really banking on you know, conservative circuit courts seeing things
24:32
Speaker 5: their way. I don't know that that's a really safe bet,
24:36
Speaker 5: given how many conservative district court judges have really strongly
24:39
Speaker 5: ruled against them. You know, this isn't the sort of ideological,
24:45
Speaker 5: really politically charged sort of issue that you know, we've
24:49
Speaker 5: sometimes seen judges break across partisan lines on. It's been
24:52
Speaker 5: across the board, just resounding losses for the Justice Department,
24:56
Speaker 5: because the statutes are very clear. It's not just DOOG,
25:00
Speaker 5: you know, DHS, the White House. There are so many
25:04
Speaker 5: arms of the federal government that are attempting to insert
25:07
Speaker 5: themselves into election administration in ways that we've really never
25:13
Speaker 5: seen before. And I think especially you know, conservative minded
25:18
Speaker 5: judges who maybe are more inclined to favor small government
25:23
Speaker 5: or be skeptical of federal overreach are looking at these
25:27
Speaker 5: actions with a lot of skepticism because it really is
25:31
Speaker 5: so far outside what the traditional role of the federal
25:34
Speaker 5: government in elections is and what very limited authorities DJ
25:39
Speaker 5: has been given by Congress in this area.
25:41
Speaker 2: They have gotten voter roles from some Republicans led states, right.
25:46
Speaker 5: That's right. There are several states about fifteen or sixteen
25:49
Speaker 5: maybe who did voluntarily turn over their full unredacted voter
25:54
Speaker 5: files so that the federal government could run them through
25:58
Speaker 5: the SAVE system, which is a program within DHS that
26:02
Speaker 5: used to be fairly limited. It was limited really to
26:04
Speaker 5: verifying the immigration status of folks who were seeking to
26:09
Speaker 5: apply for federal benefits. The federal government under the second
26:12
Speaker 5: Trump administration has radically modified that system to introduce a
26:17
Speaker 5: whole bunch of different data sources about non immigrants from
26:21
Speaker 5: you know, the Social Security Administration, from uscis, from the
26:24
Speaker 5: State Department, in an effort to try and build a
26:28
Speaker 5: kind of national citizenship registry that they can then use
26:33
Speaker 5: for things like verifying voter eligibility or immigration enforcement or
26:39
Speaker 5: whatever purpose they want. That effort has also been blocked
26:42
Speaker 5: by federal courts. You know, there's an injunction from a
26:44
Speaker 5: court in DC that found that DHS was not authorized
26:48
Speaker 5: to make all of these changes to the SAFE system,
26:51
Speaker 5: which is of course directed by Congress. They violated the
26:54
Speaker 5: Federal Privacy Act by taking all of these data sources
26:59
Speaker 5: from other arms of the federal government and using them
27:01
Speaker 5: for purposes that they were not authorized to use them for,
27:04
Speaker 5: or sharing them with agencies who were not authorized to
27:07
Speaker 5: have that data. And so, you know, it's again, it's
27:10
Speaker 5: another example of really shocking overreach by the federal government
27:16
Speaker 5: inserting itself into the voter registration and election administration process
27:23
Speaker 5: that is, you know, entirely handled by state and local governments.
27:28
Speaker 5: The federal government doesn't run our elections. They don't you know,
27:31
Speaker 5: they don't check our voter rules, you know. So it's
27:33
Speaker 5: it's really, I think part of a broader effort by
27:36
Speaker 5: the Trump administration to cast doubt on the integrity of
27:40
Speaker 5: our elections, to find or manufacture evidence in support of
27:46
Speaker 5: the conspiracy theories threat spread by the president and his
27:49
Speaker 5: allies about the twenty twenty election and any other election
27:53
Speaker 5: that he or his allies lose. And you know, fortunately,
27:58
Speaker 5: the courts are really kind of holding the line and
28:02
Speaker 5: saying no, doj and dhs. You can't just build election
28:07
Speaker 5: administration infrastructure without congressional authorization. The Constitution gives the responsibility
28:13
Speaker 5: to run elections to the states unless Congress passes a bill,
28:17
Speaker 5: and they haven't done that.
28:19
Speaker 2: Thanks so much for sharing your insights with us. Jonathan.
28:22
Speaker 2: That's Jonathan Diaz, director of voting Advocacy and Partnerships at
28:26
Speaker 2: the Campaign Legal Center. Coming up next on the Bloomberg
28:29
Speaker 2: Law show the Third Circuit strikes down New Jersey's assault
28:34
Speaker 2: weapons ban, sending a circuit split to the Supreme Court.
28:38
Speaker 2: I'm June Grosso and you're listening to Bloomberg. The Court
28:43
Speaker 2: of Appeals for the Third Circuit struck down New Jersey's
28:47
Speaker 2: assault rifle ban, ruling that the state can't stop residents
28:51
Speaker 2: from purchasing semi automatic rifles and magazines that hold more
28:56
Speaker 2: than ten rounds of ammunition. The ruling conflicts with decisions
29:01
Speaker 2: from other federal circuits that upheld assault rifle bands in
29:05
Speaker 2: other states. Joining me is Bloomberg Law Senior correspondent Alex Ebert.
29:10
Speaker 2: Alex tell us about the Third Circuits reasoning and striking
29:14
Speaker 2: down this law.
29:16
Speaker 6: The Third Circuit here steps into the breach created after
29:20
Speaker 6: we've had Heller, Bruin, Raheemi, and now Wolford to say,
29:25
Speaker 6: where is the Supreme Court going here and how would.
29:27
Speaker 1: They decide this case?
29:29
Speaker 6: And they say, like Heller, because these firearms are commonly
29:34
Speaker 6: used for a lawful purpose self protection, hunting, etc. Then
29:40
Speaker 6: they fall under protection of the Second Amendment and states
29:42
Speaker 6: can't ban their use. You know, we're talking here about
29:46
Speaker 6: one of the most popular firearms in the country. They're ubiquitous.
29:51
Speaker 6: Millions of these things are owned, and so the question
29:54
Speaker 6: that these judges tried to tackle is looking at Heller
29:58
Speaker 6: because of the popularity here and the fact that the
30:01
Speaker 6: Supreme Court has told us we need to look for
30:03
Speaker 6: historic analogs, how do we square those things and do
30:08
Speaker 6: we stop New Jerseyans for purchasing one of the most
30:11
Speaker 6: common popular firearms in the country.
30:13
Speaker 2: And so they couldn't find any historical analogs.
30:17
Speaker 6: Or they historical analog piece of it was really fraught
30:21
Speaker 6: and complex. We've had a couple of oral arguments in
30:24
Speaker 6: this case. In it New Jersey has pointed to historic
30:28
Speaker 6: analogs referring to weapons like bowie knives, slung shots, which
30:32
Speaker 6: are weapons that were used mainly by sailors, and other
30:36
Speaker 6: weapons that were banned in part or restricted greatly, especially
30:41
Speaker 6: around the time of reconstruction in the eighteen sixties. But
30:45
Speaker 6: the majority here they're going back to seventeen ninety one
30:49
Speaker 6: and they're saying around the time of the founding, these
30:52
Speaker 6: analogs matter more and we didn't see those kind of bands.
30:57
Speaker 2: This was a decision by the full third zon so
31:01
Speaker 2: On Bank. It was ten to five. Is this circuit
31:05
Speaker 2: more conservative or more liberal?
31:08
Speaker 6: The third Circuit has a slight tip toward conservative appointed judges.
31:14
Speaker 6: This happened just recently with the appointment of Emil Beauvet
31:19
Speaker 6: and Mascot, two recent Trump appointees, and so they have
31:22
Speaker 6: slightly tipped the court toward a conservative bent. Once that's happened,
31:27
Speaker 6: we've seen them take en banc cases like this one
31:31
Speaker 6: to move the law in a direction that comports with
31:34
Speaker 6: how these judges see it.
31:35
Speaker 2: This came to an o bank hearing in a weird way.
31:39
Speaker 2: So normally you have a three judge panel making a
31:42
Speaker 2: decision and then a losing party may request an on
31:47
Speaker 2: bank hearing. But here they just scrapped a decision by
31:50
Speaker 2: the three judge panel.
31:52
Speaker 1: They scrapped it, that's right.
31:53
Speaker 6: They did it before a decision was issued, which is uncommon.
31:58
Speaker 6: This might be because we had a panel decision in
32:02
Speaker 6: sensitive places another issue regarding New Jersey regulation of where
32:06
Speaker 6: you can take your firearms and especially on private property
32:10
Speaker 6: where safety is an issue, and the judges here decided
32:14
Speaker 6: we're going to take this firearm ban and magazine ban.
32:18
Speaker 6: We're going to take an on bank and have it
32:19
Speaker 6: heard by the whole court before the panel can even
32:21
Speaker 6: issue a decision.
32:23
Speaker 2: That is unusual, to say the least, tell us about
32:27
Speaker 2: the dissenting opinion.
32:29
Speaker 6: The split we have here is really interesting because we
32:31
Speaker 6: have some liberal judges or those appointed by liberal presidents
32:36
Speaker 6: in the majority, and we have a conservative judge in
32:39
Speaker 6: the Descent. And the Descent says here, listen, you're creating
32:43
Speaker 6: what amounts to a popularity test. You're saying that if
32:48
Speaker 6: gun owners and the gun industry can sell and people
32:53
Speaker 6: purchase something ahead of where states can regulate it, then
32:57
Speaker 6: that imports a right to own this, regardless of how
33:01
Speaker 6: dangerous something might be. That's the big contention that you'll
33:04
Speaker 6: hear from folks that are in favor of restricting right.
33:08
Speaker 6: You can't just decide that something is protected because it's popular,
33:12
Speaker 6: or you can't decide something's unprotected because it's unpopular. That's
33:16
Speaker 6: the thrust of what the Descent is saying. But they're
33:19
Speaker 6: also saying, look at these analogs from the eighteen sixties,
33:24
Speaker 6: they're going to give you some sort of close historic
33:28
Speaker 6: precedent for states regulating in this area.
33:31
Speaker 2: This is the first time a federal appeals court has
33:34
Speaker 2: struck down a State's assault weapons ban.
33:37
Speaker 1: Right.
33:38
Speaker 2: Other circuits have ruled on this, Yes.
33:40
Speaker 6: Other circuits have ruled on it. It is the first
33:43
Speaker 6: one against the dog pile that we've seen in other circuits,
33:47
Speaker 6: including opinions with judges on them that have been appointed
33:51
Speaker 6: by President Trump. And the folks I've spoken with on
33:55
Speaker 6: background that are familiar with this litigation from the firearm
33:58
Speaker 6: rights perspective, they're really hopeful that this could tee up
34:02
Speaker 6: a strong argument before the US Supreme Court, who is
34:05
Speaker 6: going to be taking this issue on an assault rifle
34:08
Speaker 6: ban in the next term.
34:10
Speaker 1: They see a lot.
34:10
Speaker 6: Of promise in this idea of something being considered dangerous
34:16
Speaker 6: and unusual being tied to whether or not as popular,
34:20
Speaker 6: and giving power to the people to choose what they
34:23
Speaker 6: see they need for self defense. So they're really encouraged
34:27
Speaker 6: by this ruling, and they're also frankly really encouraged by
34:31
Speaker 6: a Biden appointee being the person to write a decision
34:35
Speaker 6: saying we're going to look for precedent in the seventeen
34:39
Speaker 6: nineties instead of the eighteen sixties, where you just have
34:42
Speaker 6: a lot less regulation of firearms because these sort of
34:46
Speaker 6: weapons were not as concerning and they were really essential
34:50
Speaker 6: to fighting off the British.
34:52
Speaker 2: The Supreme Court agreed to hear kapeals of rulings upholding
34:57
Speaker 2: assault rifle bands in Illinois and can even though there
35:01
Speaker 2: was no split in the circuits at that point.
35:04
Speaker 6: That's correct. Even though there was no split in the
35:06
Speaker 6: circuits at that point. And you hear folks on background
35:10
Speaker 6: from the liberal perspective who advocate for more restriction of
35:14
Speaker 6: the guns sort of concerned that the Third Circuit would
35:18
Speaker 6: go into this gap here created by the Supreme Court
35:22
Speaker 6: and make a decision when perhaps they wouldn't have to
35:25
Speaker 6: and they could have waited. But you also have to
35:28
Speaker 6: recognize that the Supreme Court at this point hasn't taken
35:31
Speaker 6: on the high capacity magazine question, so whether or not
35:34
Speaker 6: you can have you know, magazines that have ten or
35:37
Speaker 6: more bullets or you know, dozens more in some cases.
35:40
Speaker 6: And so the Third Circuit here is pushing into something
35:43
Speaker 6: that the Supreme Court may not get to in their
35:47
Speaker 6: case this year.
35:48
Speaker 2: Why would they take that up unless there are at
35:50
Speaker 2: least four votes who want to reverse those decisions, because
35:54
Speaker 2: otherwise they would just leave the decisions in place until
35:57
Speaker 2: there is a circuit split. But I've been proven wrong before,
36:01
Speaker 2: and so how many states about have similar regulations?
36:06
Speaker 6: Yeah, so there's about a dozen states that have assault
36:10
Speaker 6: rifle bands and a few more that have high capacity
36:14
Speaker 6: magazine bands. And so the tricky thing here is that
36:18
Speaker 6: these things are extremely common June, and folks on the
36:21
Speaker 6: left or the right, or you know, restriction and rights
36:25
Speaker 6: advocacy will agree these are incredibly common weapons and incredibly
36:30
Speaker 6: common tools. So you know, you're going to see little
36:33
Speaker 6: girls in Wisconsin where I'm from, using them for hunting, right,
36:37
Speaker 6: They're very common. And so you know, part of the
36:39
Speaker 6: argument is can these states restrict and do they have
36:43
Speaker 6: the right to while the rest of the country doesn't
36:46
Speaker 6: want to?
36:47
Speaker 1: And does the court step in?
36:48
Speaker 2: And at what point and why did they remand the
36:51
Speaker 2: case back to the district court.
36:53
Speaker 6: So New Jersey's law here is somewhat expansive from the
36:58
Speaker 6: perspective of gun rights advocates. It covers, you know, different
37:04
Speaker 6: features on weapons and some shotguns and things like that,
37:08
Speaker 6: certain things that make them more likely or able to
37:11
Speaker 6: be used in mass shootings, which is what New Jersey
37:14
Speaker 6: is putting its foot down and saying we want to prevent.
37:16
Speaker 6: So from the state's perspective, they have broader categories beyond
37:20
Speaker 6: some automatic rifles they're trying to limit access to because
37:24
Speaker 6: they're worried about its use in gun violence. And from
37:27
Speaker 6: the state of the gun rights advocates, they're saying, listen,
37:30
Speaker 6: a lot of these things are really common for use
37:33
Speaker 6: in other lawful you know, things, shooting tournaments, hunting, you
37:38
Speaker 6: name it. Advocates in this space find this Third Circuit
37:42
Speaker 6: decision really interesting because it touches on something they're going
37:46
Speaker 6: to be watching Justice amy Cone and Barrett on. We
37:49
Speaker 6: have the situation where the Chief Justice and Barrett haven't
37:53
Speaker 6: really come down either way for or against rights to
37:57
Speaker 6: owning assault rifles. And we also have this big question
38:02
Speaker 6: out there about how Justice amy Coney Barrett will treat
38:06
Speaker 6: either a lack of conflict or conflict between precedents the
38:11
Speaker 6: states are relying on from the seventeen nineties and what
38:15
Speaker 6: states are relying on in the eighteen sixties.
38:17
Speaker 1: And so what.
38:18
Speaker 6: Advocates tell me is a big question floating out there
38:21
Speaker 6: is can states rely on restrictions when there were more restrictions,
38:25
Speaker 6: you know, at the time of the Fourteenth Amendment.
38:28
Speaker 1: Enactment about guns.
38:30
Speaker 6: If there was nothing touching on that at the time
38:33
Speaker 6: of the founding or does that silence at the time
38:36
Speaker 6: of the founding limit what states can rely on when
38:39
Speaker 6: they're reaching back and saying we have a history of
38:43
Speaker 6: regulating firearms in this way.
38:46
Speaker 2: Have you talked to legal experts about how they think
38:48
Speaker 2: the Supreme Court might handle this?
38:51
Speaker 6: It is not an open and closed thing. We have,
38:54
Speaker 6: you know, liberal advocates looking at this decision and saying
38:58
Speaker 6: they don't see how the Supper Court could adopt exactly
39:02
Speaker 6: this because it creates questions about, you know, when you
39:06
Speaker 6: make a call on if something is popular, and when
39:09
Speaker 6: you make a call on if the state could regulate it.
39:12
Speaker 6: We also have conservative advocates hoping that the justices will
39:16
Speaker 6: you know, lean in and consider the things that these
39:18
Speaker 6: judges are saying in the Third Circuit because it could
39:21
Speaker 6: give gun owners, you know, stronger latch into the law
39:25
Speaker 6: to fight for the rights that they seek.
39:28
Speaker 2: I think the Heller decision, instead of clarifying things, has
39:32
Speaker 2: just made it more confusing, and ever since Teller, the
39:36
Speaker 2: lower courts are trying to figure it all out.
39:38
Speaker 6: When Heller came down, we have this like scrutiny regime
39:42
Speaker 6: right and the idea of like a test as to
39:47
Speaker 6: whether something is unusual and dangerous works in a scrutiny
39:50
Speaker 6: regime because then it's balancing between like the rights of
39:54
Speaker 6: the gun owners and the.
39:55
Speaker 1: Public to protect.
39:56
Speaker 6: But in a world where we're talking about historical analogs,
39:59
Speaker 6: it does don't make as much sense because now that's
40:02
Speaker 6: like living constitutionalism. It's like against the idea that you
40:06
Speaker 6: look back in time to history, because you have these
40:08
Speaker 6: perpetual slices in time for when guns become popular or regulated.
40:13
Speaker 1: It's a time machine problem.
40:16
Speaker 6: And the more I peel back this onion and the
40:19
Speaker 6: more I talk with people, the more I'm not like
40:21
Speaker 6: satisfied with like how you square Heller and this idea
40:26
Speaker 6: that if something is not unusual or unusually dangerous, you
40:31
Speaker 6: know you can have a right to it, and this
40:33
Speaker 6: idea that there has to be a historical analog because
40:35
Speaker 6: newly unusual and historically dangerous stuff comes up all the time.
40:39
Speaker 1: And so I'm not satisfied. I don't see a path
40:42
Speaker 1: forward that's easy.
40:44
Speaker 2: I think a lot of experts on the Second Amendment
40:47
Speaker 2: may agree with you. Alex, thanks so much. That's Bloomberg
40:51
Speaker 2: Lawn Senior correspondent Alex Ebert