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Conviction Reversed in Etan Patz Case & Texas Redistricting · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: The smiling face of the six year old boy who
0:11
Speaker 1: disappeared on his way to school stared back from countless
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Speaker 1: milk cartons in the nineteen eighties. The disappearance of Eton
0:20
Speaker 1: Pates in New York City in nineteen seventy nine was
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Speaker 1: one of the nation's most notorious missing child cases. There
0:27
Speaker 1: was a decade's long, haunting search for answers to his
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Speaker 1: disappearance that put a national focus on missing children, made
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Speaker 1: anxious parents more protective of their children, and changed the
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Speaker 1: way law enforcement handled missing children cases. And then, more
0:43
Speaker 1: than thirty years after his disappearance, police arrested Pedro Hernandez,
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Speaker 1: who worked at a convenience store in Eton's neighborhood. Hernandez confessed,
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Speaker 1: and after one jury deadlocked, a second jury convicted Hernandez
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Speaker 1: of murder and kidnapping.
1:00
Speaker 2: I needed to know what happened to my son, and
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Speaker 2: this great prosecution team finally proved it.
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Speaker 1: And now, forty six years after Eton Pates's disappearance, a
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Speaker 1: New York federal appeals court has resurrected the case. The
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Speaker 1: second Circuit has reversed Hernandez's conviction and ordered that he
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Speaker 1: be given a new trial or released, saying the trial
1:26
Speaker 1: judge gave clearly wrong instructions to the jury. The Manhattan
1:30
Speaker 1: District Attorney, Alvin Bragg will make the decision about whether
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Speaker 1: to retry Hernandez or let him go free. My guest
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Speaker 1: is Paul Callen, a former New York City prosecutor and
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Speaker 1: criminal defense attorney. He's now of counsel at Edelman and Edelman.
1:45
Speaker 1: Paul eton Pates's disappearance has had reverberations in so many areas.
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Speaker 3: The Eton Pates case has influenced child rearing in America
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Speaker 3: for almost a quarter of a century. Mothers don't let
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Speaker 3: their kids go to school if they're in the first
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Speaker 3: grade unless they're accompanied. Helicopter parenting. I think came along
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Speaker 3: in a large degree because of the fear that's something
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Speaker 3: like what happened to Eton Pates would happen to a child.
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Speaker 3: So it's had a big influence this case on child
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Speaker 3: rearing in the United States.
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Speaker 1: He was one of the first missing children to be
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Speaker 1: on milk cartons.
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Speaker 3: Yes he was, and I think a whole generation of
2:28
Speaker 3: kids probably grew up seeing him on the side of
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Speaker 3: milk carts as they sat having their cheerios in the morning,
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Speaker 3: wondering where eton Pates was and would he ever be found.
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Speaker 3: So the whole country was mesmerized by this case, and
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Speaker 3: I think it's kind of shocking that it got reversed
2:44
Speaker 3: when they finally say they got the guy who did it.
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Speaker 3: And so it's a fascinating case and an interesting case.
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Speaker 1: So his body was never found. As I understand it,
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Speaker 1: there's no physical evidence that links Hernandez to the crime.
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Speaker 1: Was it all based on a confession?
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Speaker 3: Yeah, there was no physical evidence whatsoever. And there literally
3:03
Speaker 3: were thousands of detective hours and FBI hours devoted to
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Speaker 3: searching for his body. They even had cadaver sniffing dogs
3:12
Speaker 3: that went into basements in the area where he disappeared,
3:15
Speaker 3: but they were never able to come up with a
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Speaker 3: piece of physical evidence. This is a case based entirely
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Speaker 3: on a confession.
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Speaker 1: And the appeals court reversal is all about the confession.
3:26
Speaker 1: So tell us about that.
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Speaker 3: Yes, and remember this is the second trial that he
3:32
Speaker 3: was convicted at. At the first trial, the jury also
3:35
Speaker 3: in that case had a problem with the confession and
3:39
Speaker 3: there was a single holdout and it resulted in a
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Speaker 3: hung jury, and then the Manhattandia decided to retry the case,
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Speaker 3: and so now we're in the second trial. And during
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Speaker 3: that second trial, the jury's having major problems with the confession.
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Speaker 3: And this is the reason they're having a big problem
3:56
Speaker 3: with the confession. When he confessedes Pedro Hernandez confesses he's
4:00
Speaker 3: in New Jersey. He's in Camden, New Jersey, and New
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Speaker 3: York detectives go to New Jersey and they put him
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Speaker 3: in an eight by ten foot room with no windows
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Speaker 3: in it, and they begin to ask him questions about
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Speaker 3: the disappearance of the Eton Pates. They did this because
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Speaker 3: they got a tip from one of his family members
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Speaker 3: that maybe he was involved in the disappearance of the
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Speaker 3: pates in nineteen seventy nine. And he's questioned intensively by
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Speaker 3: New York City detectives without Miranda warnings for a period
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Speaker 3: of approximately six hours. And during that time period they
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Speaker 3: even bring him drugs because he said he had left
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Speaker 3: his medications at home, and they send the detective to
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Speaker 3: his house to pick up a bottle of pills along
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Speaker 3: with fentanyl patches, and a fentanyl patch is put on
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Speaker 3: him as well as he's allowed to take the pills,
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Speaker 3: and the confession continues. There's a camera mounted in the
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Speaker 3: ceiling of the eight by ten foot windowless room, and
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Speaker 3: there's apparently a Manhattan Assiste District attorney watching the questioning
5:02
Speaker 3: from a remote location, and at the very end of
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Speaker 3: that time period, he confesses to having killed Eton Pates,
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Speaker 3: putting his body in a garbage bag and then throwing
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Speaker 3: it in the trash. And he says that he encountered
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Speaker 3: Pates outside of a bodega that he Hernandez worked at
5:18
Speaker 3: or for the Masota, and brought him inside and murdered him.
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Speaker 3: The confession then is repeated later on when he's brought
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Speaker 3: back to Manhattan to the assistant district attorney that in
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Speaker 3: fact was watching remotely when the first confession was given,
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Speaker 3: and this time he's given his Miranda warnings. At the
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Speaker 3: time of the initial confession, he's never given Miranda warnings
5:41
Speaker 3: by the police. They say he was not in custody,
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Speaker 3: despite the fact that he's in an eight x ten
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Speaker 3: windowless room for six hours being questioned by a team
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Speaker 3: of detectives. So problems with those confessions are the central
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Speaker 3: reason that the United States Federal Court has reversed the
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Speaker 3: conviction liberations.
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Speaker 1: The jurors sent out a note to the judge asking
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Speaker 1: whether they should disregard the later recorded confessions if they
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Speaker 1: found that his first confession off camera wasn't voluntary, And
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Speaker 1: the Second Circuit said, the judge gave them the wrong answer.
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Speaker 3: Yes, that's exactly correct. What the note said was, if
6:20
Speaker 3: we find that the initial confession that was given in
6:24
Speaker 3: New Jersey was not voluntary, can we still consider the
6:29
Speaker 3: subsequent confessions that were made when he was brought back
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Speaker 3: to New York. And essentially the court said, yes, you
6:35
Speaker 3: can consider the subsequent confessions. So they went on then
6:40
Speaker 3: to look at the subsequent confessions which occurred after Miranda warnings,
6:44
Speaker 3: and he incriminated himself in those confessions as well. So
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Speaker 3: the conviction was based on those confessions.
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Speaker 1: And why did the Second Circuit conclude that the judge's
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Speaker 1: answer or decision was wrong.
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Speaker 3: Well, there's a case called Missouri is Sebird that is
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Speaker 3: the central case that the court refers to. And back
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Speaker 3: when the Miranda decision came down, the cops had come
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Speaker 3: up with a workaround. And here's the workaround. Let's take
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Speaker 3: the person into custody and get a confession out of
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Speaker 3: the person and then give him Miranda warnings and ask
7:21
Speaker 3: him to just repeat what he had said in the
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Speaker 3: initial confession. And this became a widespread technique that was
7:28
Speaker 3: used across the country. Eventually, the federal courts had to
7:32
Speaker 3: step in, including the Supreme Court, to say, no, this
7:34
Speaker 3: is completely improper. You can't do a confession without Miranda
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Speaker 3: warnings and then subsequently give the warnings and ask the
7:43
Speaker 3: person to repeat what you just said. And that's this
7:46
Speaker 3: Missouri versus Sibird case. And the Circuit Court here Second
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Speaker 3: Circuit said no, they ignored that case. They didn't rule
7:55
Speaker 3: properly on that case. There wasn't a significant what they
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Speaker 3: call attenuation between the initial confession which had no Miranda
8:03
Speaker 3: warnings and the subsequent confessions when the Miranda warnings were given.
8:07
Speaker 3: The Seber case basically says that there has to be
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Speaker 3: an attenuation of a distance between the two interrogations if
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Speaker 3: you're going to just administer the Miranda warnings belatedly. So
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Speaker 3: that wasn't done in this case, and for that reason
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Speaker 3: the conviction was overturned.
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Speaker 1: I'm just curious about in real life, so we hear
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Speaker 1: the Miranda warnings in TV shows and movies over and
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Speaker 1: over again. Most people can recite them. Does it really
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Speaker 1: make a difference to someone in custody if they hear
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Speaker 1: those Miranda warnings?
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Speaker 3: To tell you the truth, June, I don't think so.
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Speaker 3: And you know, when I started out my career as
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Speaker 3: an assistant district attorney in New York City, we used
8:49
Speaker 3: to ride homicide cases, meaning we would go out to
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Speaker 3: the scene of the crime and administer Miranda warnings to
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Speaker 3: the suspect. We had a stenographer with us and it
8:59
Speaker 3: would all be taken down, but frankly, we didn't know
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Speaker 3: what went on, what really went on before we got there.
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Speaker 3: Now the police would say we administered warnings to him
9:07
Speaker 3: before the DA arrived and took the formal statement, but
9:10
Speaker 3: who knows what went on. I mean, it's only the
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Speaker 3: police in the room with the suspect, and the atmosphere
9:15
Speaker 3: is very different before the lawyer arrives on the scene.
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Speaker 3: But my experience was that the Miranda warnings had become
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Speaker 3: so pro forma and all of the potential defendants in
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Speaker 3: criminal cases know the Miranda warnings, so they're not getting
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Speaker 3: any new information, and if their intent on confessing, they
9:33
Speaker 3: confess without asking for a lawyer. You know, it's really
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Speaker 3: only the sort of educated professionals and mobsters who ask
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Speaker 3: for lawyers, not day to day violent criminals.
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Speaker 1: So now the second Circuit said that either free Hernandez
9:48
Speaker 1: or put him on trial for a third time within
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Speaker 1: a quote reasonable period. Talk about the obstacles of trying
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Speaker 1: him again, Well.
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Speaker 3: They're going to be up against exactly the same obstacles
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Speaker 3: as the first time around, because when I looked into
10:02
Speaker 3: the record of this case, remember this Appellet decision that
10:05
Speaker 3: was issued by the federal courts, fifty one pages in length.
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Speaker 3: They recount in detail all of the strange things that
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Speaker 3: happened during this interrogation. He was found by several experts
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Speaker 3: to be a schizophrenic suffering from bipolar disease who was
10:21
Speaker 3: also using fentanyl and other drugs. This is all taking
10:26
Speaker 3: place when he's being interrogated, by the way that he
10:29
Speaker 3: was suffering from these conditions and using the drugs which
10:31
Speaker 3: were supplied by the police. So in the absence of
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Speaker 3: new evidence that would physically link him to the crime,
10:38
Speaker 3: I think you're very much in a situation. Will you
10:40
Speaker 3: be looking at another hung jury or maybe even an
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Speaker 3: acquittal on a retrial Now, the DA in the last
10:47
Speaker 3: case was Cyrus Vance, who decided to proceed with this case.
10:51
Speaker 3: And you have a new DA now, Alvin Bragg. And
10:54
Speaker 3: I'm not so sure that Alvin Bragg's going to want
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Speaker 3: to get involved in the Eton Pates case just because
10:59
Speaker 3: of the problems with the evidence and something else. There
11:03
Speaker 3: were at least two other suspects who were child abusers,
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Speaker 3: who were thought to be in the vicinity of the
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Speaker 3: crime and who were intensively investigated, and with the exception
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Speaker 3: of the confession, the case against them was as strong
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Speaker 3: as the case is against Hernandez. So I'm doubting that
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Speaker 3: he will get retried. But of course there might be
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Speaker 3: a public outcry. So it's always hard to decide by
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Speaker 3: a DA whether to proceed or not in such a
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Speaker 3: high profile case.
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Speaker 1: This is such a high profile case and a lot
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Speaker 1: of people will be dismayed if Hernandez just walks out
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Speaker 1: of prison. That's something that the DA has to consider too.
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Speaker 3: Yes, I agree with you completely. There there'll be public
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Speaker 3: outrage if Hernandez is allowed to walk. And you know, frankly,
11:49
Speaker 3: when you're a DA also you're saying, my god, will
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Speaker 3: I be releasing a child molestor and murderer who might
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Speaker 3: in fact hurt other people. Maybe it's worth another try
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Speaker 3: to try him again, But I think really they're going
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Speaker 3: to be up against a very, very difficult situation if
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Speaker 3: they attempt to retry this case.
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Speaker 1: And Paul, how unusual is it for a federal appellate
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Speaker 1: court to reverse a state court proceeding. I mean, this
12:16
Speaker 1: was a petition for a habeas relief.
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Speaker 3: It's very, very unusual for it to happen. And the
12:22
Speaker 3: reason for that is that these cases, before they get
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Speaker 3: to federal court, they've usually been looked at by at
12:29
Speaker 3: least two other appellate court levels. On the state court
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Speaker 3: in New York, you'd go to the Appellate Division, and
12:35
Speaker 3: you'd go to the Court of Appeals. And by the
12:38
Speaker 3: time you bring a habeas action, which is what it's
12:41
Speaker 3: called when the Feds get involved in looking at a
12:44
Speaker 3: state case for constitutional violations, you've got a record that's
12:48
Speaker 3: been carefully examined by a lot of judges who have
12:52
Speaker 3: found that the trial was fair and there were no
12:54
Speaker 3: constitutional violations. And the standard for a habeas relief is
13:00
Speaker 3: very very high. You have to show you that there
13:03
Speaker 3: was absolutely no reason to support the state's determination not
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Speaker 3: to set aside the conviction. There's a very very high
13:12
Speaker 3: standard displaced on the defendant to prove his innocence in
13:16
Speaker 3: a federal habeast action. So it's very rare that you
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Speaker 3: win this kind of relief, especially in a high profile case.
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Speaker 1: And this stunning appeals court reversal came just over a
13:28
Speaker 1: year after another high profile case tried during Cyrus Vance's
13:34
Speaker 1: tenure was also reversed on appeal in another stunning decision,
13:39
Speaker 1: and that was the Harvey Weinstein case, when an appeals
13:42
Speaker 1: court found that the trial judge there shouldn't have allowed
13:45
Speaker 1: prosecutors to call witnesses who accused Weinstein of sexual abuse
13:50
Speaker 1: in incidents that were not part of the charges.
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Speaker 3: You have to say that these judges in New York
13:57
Speaker 3: have been quite brave. You have the Harvey Weinstein case,
14:01
Speaker 3: which burned up the headlines across the country when he
14:05
Speaker 3: was convicted, and they reversed his conviction, and now, of
14:08
Speaker 3: course you have this case. Eton Pates is the poster
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Speaker 3: child of you know, a child being kidnapped and abused,
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Speaker 3: and for the appellate court to have reversed both of
14:19
Speaker 3: these cases is a very brave move. By those courts,
14:23
Speaker 3: and I think it's a tribute to them that they
14:26
Speaker 3: were carefully applying the law as it is, despite the
14:30
Speaker 3: fact that they're probably going to be criticized publicly for
14:33
Speaker 3: having done so. But I think, you know, the evidence
14:37
Speaker 3: was clear in this case, and I also think in
14:39
Speaker 3: the Weinstein case that a reversal probably was in order.
14:43
Speaker 3: Now maybe a retrial is in order too, if they
14:45
Speaker 3: got the right person. But it was a brave move
14:48
Speaker 3: by these judges to reverse.
14:50
Speaker 1: And the DA did retry Harvey Weinstein, which resulted in
14:56
Speaker 1: a mixed verdict. So we'll see if he decides to
14:58
Speaker 1: retry Hernandez. Thanks so much for joining me.
15:01
Speaker 2: Paul.
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Speaker 1: That's former New York prosecutor Paul Callan. President Donald Trump
15:06
Speaker 1: has been very open about his plans to use redistricting
15:11
Speaker 1: to help Republicans retain control of the House in the
15:14
Speaker 1: twenty twenty six midterm elections. Trump said last week that
15:18
Speaker 1: he'd spoken with Republican lawmakers in Texas and that redrawing
15:22
Speaker 1: the state's congressional map in favor of the GOP would
15:26
Speaker 1: add as many as five seats for the party.
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Speaker 2: It's a very simple redrawing.
15:30
Speaker 3: We pick up five seats, but we have a couple
15:33
Speaker 3: of other states where we'll pick up seats.
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Speaker 1: Also days later, when Governor Greg Abbott announced his agenda
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Speaker 1: for the legislature's special session that started on Monday, redistricting
15:44
Speaker 1: was on the list. In the hopes of countering Trump's
15:47
Speaker 1: strategy in Texas, House Minority Leader Hakim Jeffries is reportedly
15:52
Speaker 1: exploring the possibility of redrawing house maps in the Democratic
15:57
Speaker 1: controlled states of California, New York, New Jersey, Minnesota, and Washington.
16:03
Speaker 4: Donald Trump, House Republicans here in Washington and Governor Abbott
16:07
Speaker 4: are conspiring to rig the Texas congressional map as part
16:13
Speaker 4: of an effort to disenfranchise millions of people in Texas.
16:19
Speaker 1: Join me is Elections law expert Richard Brofald, a professor
16:22
Speaker 1: at Columbia Law School. Rich start by explaining the difference
16:27
Speaker 1: between redistricting and gerrymandering.
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Speaker 2: Sure, so, resistricting and jerry mandering refruit of the same thing,
16:35
Speaker 2: But jerrymandering is a kind of negative way or a
16:38
Speaker 2: critical way of describing it when it's being driven by
16:41
Speaker 2: partisan purposes. So most of you know congressional delegations and
16:46
Speaker 2: state legislatures are divided up into districts in every ten years.
16:50
Speaker 2: They have to be redistricted based on population. As population
16:54
Speaker 2: moves around, as some areas gain and some areas lose.
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Speaker 2: The Constitution requires, as interpreted by the Supreme Court, requires
17:02
Speaker 2: that districts be a relatively equal population, So usually every
17:05
Speaker 2: ten years, usually around the year ending in one or
17:08
Speaker 2: year ending in two following the census, states redistricts. That's redistricting.
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Speaker 2: Gerrymandering is a negative term we use when we say
17:17
Speaker 2: that the districting plan was driven by partisan political purposes.
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Speaker 2: There are many different ways of creating a state a
17:24
Speaker 2: bunch of equal sized districts, but some of them can
17:27
Speaker 2: be done in a way that favors one party over
17:30
Speaker 2: the other. The party in charge can do it in
17:33
Speaker 2: a way that breaks up areas that the other party
17:36
Speaker 2: has and splits them up into multiple districts so they
17:39
Speaker 2: can never control anything, or that's called cracking. So they
17:42
Speaker 2: could also do the opposite, called packing, and put every
17:45
Speaker 2: member of the minority party in one district, so that
17:49
Speaker 2: they overwhelmingly dominate one district and have no voice anywhere else.
17:53
Speaker 2: And so gerry mannering is a phenomenon of drawing district
17:56
Speaker 2: lines in a way that produces districts of equal population
18:00
Speaker 2: but unduly favors one party over the other. Thus, a
18:04
Speaker 2: majority party gets not just a majority of the seats,
18:07
Speaker 2: but a much bigger majority than their share of the vote,
18:11
Speaker 2: which would require in fairness. So that's the difference.
18:14
Speaker 1: Donald Trump has called for Republicans in several states to
18:17
Speaker 1: redraw their congressional maps to help give Republicans an even
18:22
Speaker 1: bigger advantage in the midterms. As you mentioned, you know,
18:25
Speaker 1: they usually do it every ten years. How unusual is
18:28
Speaker 1: it to be doing it at this time.
18:30
Speaker 2: This kind of what might be called mid cycle registioning
18:32
Speaker 2: is very unusual. It's not that it's never happened before.
18:35
Speaker 2: It has sometimes happened. Although it's unusual, it happens sometimes.
18:38
Speaker 2: It happens when a new party takes over state legislature
18:42
Speaker 2: that they hadn't had at the beginning of the decade.
18:45
Speaker 2: Here is actually talking to states where the Republicans were
18:47
Speaker 2: already in charge of doing the districting in twenty twenty
18:51
Speaker 2: one and saying, well, I want you to do it
18:53
Speaker 2: even more so now. And it's very rare that it's
18:57
Speaker 2: being gone for so kind of late nakedly partisan purposes.
19:02
Speaker 2: There usually has some justification for it, but this time,
19:06
Speaker 2: I mean it's being announced as purely partisan. It's purely gerrymandering,
19:10
Speaker 2: rather than any claim that there was a kind of
19:13
Speaker 2: a problem of representation with the older districts.
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Speaker 1: And the Supreme Court has said partisan jerry mandering is okay,
19:21
Speaker 1: racial jerry mandering is not.
19:24
Speaker 2: That's correct. I mean, I guess technically what they have
19:26
Speaker 2: said is that partisan jerry mandering is not unconstitutional. They
19:30
Speaker 2: don't endorse it, but they have said that there's nothing
19:33
Speaker 2: the federal courts can do about it. Racial gerrymandering districting
19:37
Speaker 2: designed to help one race over another. That does raise
19:41
Speaker 2: a constitutional concern, but race and party are often very
19:44
Speaker 2: closely intertwined, and in their most recent cases, the courts
19:48
Speaker 2: basically said, if the state says it's partisan, because partisan
19:51
Speaker 2: is constitutional, we're going to defer them. We're going to
19:55
Speaker 2: put a very heavy burden of proof on the other side,
19:57
Speaker 2: challenging it to show that it's not partisan, it's racial.
20:01
Speaker 2: And here, at least what's going on in Texas, the
20:03
Speaker 2: announcement is so clearly that it's partisan, and it seems
20:06
Speaker 2: to be that that I think it would be very
20:08
Speaker 2: hard to show that even if there's a racial component
20:11
Speaker 2: to it, it'd be very hard to show that it
20:12
Speaker 2: wasn't primarily partisan.
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Speaker 1: Republican Texas Governor Greg Abbott put redistricting on the list
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Speaker 1: for this special session that start on Monday, right. He
20:22
Speaker 1: said his decision was because of a letter he received
20:25
Speaker 1: from the Department of Justice earlier this month that alleges
20:29
Speaker 1: that four of the current districts were racial gerrymanders that
20:32
Speaker 1: violate the fourteenth Amendment. I mean, was that letter pretextual?
20:38
Speaker 1: Does it make any sense?
20:39
Speaker 2: It sure seems that way. I mean, these districts were
20:42
Speaker 2: adopted two years ago, and they were designed to provide
20:46
Speaker 2: representation for minority groups, I think for for African Americans
20:50
Speaker 2: and Latinos. I think they were primarily Latino districts. The
20:53
Speaker 2: Constitution does not forbid that in the Voting Rights Act. Actually,
20:57
Speaker 2: if it doesn't require that, at least it promotes that
20:59
Speaker 2: idea representation for minorities. So no one has ever challenged
21:03
Speaker 2: those districts. And basically the current view in the current
21:07
Speaker 2: administration seems to view that anything that even thinks about
21:10
Speaker 2: race is unconstitutional. That's not been the standard until now.
21:14
Speaker 2: The Supreme court standard is that race can be taken
21:17
Speaker 2: into account in districting, it just can't be the overwhelming factor,
21:20
Speaker 2: the predominant factor. And I think you would have to
21:24
Speaker 2: show that these districts, of course did help create minority representation,
21:28
Speaker 2: but that you would have to show that that was
21:30
Speaker 2: the overwhelming factor as opposed to other factors, including respect
21:34
Speaker 2: for political subdivision mindes following the course of pre existing districts.
21:38
Speaker 2: It does seem as though this was designed purely to
21:40
Speaker 2: give a justification for a re redistricting. But the state
21:45
Speaker 2: is not anyone going to court and suing. No one
21:47
Speaker 2: has gone to court to sue to challenge those districts.
21:50
Speaker 2: If anything, there was another lawsuit that was brought from
21:53
Speaker 2: the other perspective saying that some other districts in Texas
21:57
Speaker 2: violated the voting right fact in terms of limiting an representation,
22:01
Speaker 2: and the state had been defending them as saying that
22:03
Speaker 2: the state's districting plan was entirely constitutional. So the state
22:07
Speaker 2: has now kind of flipped its position sort of, you know,
22:10
Speaker 2: moving away from its position that everything is fine and
22:13
Speaker 2: is now considering redoing the.
22:14
Speaker 3: District coming up next.
22:16
Speaker 1: Can Democrats really retaliate? This is Bloomberg. I've been talking
22:20
Speaker 1: to Columbia law professor Richard Bruffault about Texas Republicans aiming
22:25
Speaker 1: to redraw House districts at President Trump's urging in order
22:30
Speaker 1: to help Republicans retain control of the House in the
22:33
Speaker 1: twenty twenty six mid term elections. Rich this is also
22:37
Speaker 1: risky for Republicans, not just legally but electorally. Texas Democrat
22:43
Speaker 1: Gonzales said, get ready for some pick up opportunities.
22:47
Speaker 2: It depends on exactly what the Republicans do. But I
22:50
Speaker 2: think if what they're going to do, and as I
22:53
Speaker 2: understand it, if they take some districts where Republicans are
22:58
Speaker 2: strong and move some Republican voters into nearby districts currently
23:04
Speaker 2: held by a Democrat but have been trending Republican. I
23:07
Speaker 2: think what happened is that in the twenty twenty four election,
23:10
Speaker 2: a lot of districts that are held by Democrats voted
23:13
Speaker 2: for Trump, and so I think what they're thinking is
23:16
Speaker 2: that they may be able to move some Republican voters
23:20
Speaker 2: from what are clearly Republican districts into districts which have
23:24
Speaker 2: been Democratic districts but night tip Republican with a few
23:27
Speaker 2: more Republican voters. So that's the idea of what I've
23:30
Speaker 2: seen numbers. They think they can find as many as
23:32
Speaker 2: five districts that look like that. What Aurort is getting
23:35
Speaker 2: at is they're risking the possibility that not only won't
23:38
Speaker 2: these districts tip, but by moving Republicans out of the
23:42
Speaker 2: other districts, they risk losing those districts. A lot will
23:46
Speaker 2: turn on what the political climate is next fall in
23:49
Speaker 2: twenty twenty six. If it's a democratic year, that is
23:53
Speaker 2: a real risk. If it's not, then the Republican strategy
23:56
Speaker 2: may work. But you know, at some point, there are
23:58
Speaker 2: only so many Republican and Democratic voters in a state,
24:02
Speaker 2: and the idea is to try and arrange them in
24:04
Speaker 2: such a way to maximize your party's vote. But people
24:08
Speaker 2: don't always vote exactly the same each time, and it
24:11
Speaker 2: could be that some voters switched back and the Republicans
24:14
Speaker 2: did very well in what had been Democratic districts last time,
24:17
Speaker 2: will they do as well next time.
24:19
Speaker 1: Three of the districts that the Republicans want to tinker
24:23
Speaker 1: with are represented by black and Latino lawmakers in Houston
24:28
Speaker 1: and Dallas. Reportedly, the White House is preparing a map
24:31
Speaker 1: that splits those coalitions, So would there be a possible
24:34
Speaker 1: legal challenge there, even though difficult.
24:37
Speaker 2: Well, one question again is the status of a so
24:40
Speaker 2: called coalition. Until recently, many courts upheld the idea that
24:45
Speaker 2: Minori groups can affect band together and say that we're
24:48
Speaker 2: discriminated against together by the way the district lines are Troy.
24:52
Speaker 2: There have now been some court decisions that are be
24:54
Speaker 2: able to challenge the idea that you could have and
24:57
Speaker 2: affect a lawsuit brought by African American and Hispanic coalition
25:01
Speaker 2: that has to be either one or the other. So
25:04
Speaker 2: that would be a question as to whether or not,
25:07
Speaker 2: you know, the so called coalition is a group that
25:10
Speaker 2: has standing to bring a claim. Those coalition cases have
25:14
Speaker 2: been broad, but now I think more questions have been
25:16
Speaker 2: raised about them.
25:17
Speaker 1: There's also a risk of retaliation. Minority leader Hakim Jeffries
25:22
Speaker 1: is reportedly exploring the possibility of redrawing house maps in California,
25:28
Speaker 1: New York, New Jersey, Minnesota, and Washington and California Governor
25:32
Speaker 1: Gavin Newsom has been pretty blunt about saying we're going
25:35
Speaker 1: to redistrict here in California. Then he said special sessions,
25:39
Speaker 1: special elections, ballot initiatives, new laws. It's all on the
25:44
Speaker 1: table when democracy is on the line. They have an
25:47
Speaker 1: independent commission in California, right.
25:49
Speaker 2: I think it would be very hard to do this
25:51
Speaker 2: in California because, as is implied from Newsom's statement, they
25:55
Speaker 2: have a constitutional amendment that governs how redistricting is done.
25:59
Speaker 2: They would baseic we have to either supersede that amendment
26:03
Speaker 2: with a new amendment that either forever for one time
26:06
Speaker 2: only it would change the distressing process. That's really hard.
26:09
Speaker 2: I mean, I think they'd have to get the measure
26:11
Speaker 2: of something through the legislature and to the voters, and
26:14
Speaker 2: then the voters would have to approve that, and then
26:16
Speaker 2: they'd have to go and then write a new plan.
26:19
Speaker 2: And you know, that's a that's a big lift as
26:23
Speaker 2: to whether or not it's they could get a constitutional
26:25
Speaker 2: amendment to the voters in time this year, and whether
26:28
Speaker 2: the voters would approve it, I mean, it's also pretty blatant.
26:31
Speaker 2: And although California runs democratic, it's not clear to me
26:34
Speaker 2: that the voters would approve this. I mean, the might
26:39
Speaker 2: and then of course they'd have to write a plan
26:41
Speaker 2: in a way that doesn't follow the constitutional pattern they
26:44
Speaker 2: have there, they have to come up with an entirely
26:45
Speaker 2: new system. So I guess they'd have to take it
26:47
Speaker 2: away from the Constitutional Commission and give it to the legislature,
26:51
Speaker 2: either always or this one time. I'm not sure what
26:53
Speaker 2: the proposal is.
26:55
Speaker 1: And what about redistricting in other Democratic controlled states?
27:00
Speaker 2: Well, again, New York also has adopted a new constitutional
27:04
Speaker 2: format redistricting, and that I think currently governs. I don't
27:09
Speaker 2: know about the other states. I think in the other
27:11
Speaker 2: states it may be possible that the legislature would they
27:14
Speaker 2: have a democratic legislature and a democratic governor. You mentioned Minnesota.
27:18
Speaker 2: I think the Minnesota legislature is very closely divided, and
27:22
Speaker 2: I think a key Democrat is just convicted of a
27:25
Speaker 2: crime and may have to resign. On which case, it's
27:27
Speaker 2: not clear. The Democrats have been Minnesota legislature. So you
27:30
Speaker 2: mentioned Washington state, that might be possible, and you're talking
27:32
Speaker 2: about picking up maybe one seat. I think in a
27:34
Speaker 2: place like.
27:35
Speaker 1: That, I mean, is jerry mandering getting worse in recent years?
27:40
Speaker 1: Parties in jerry mandering?
27:42
Speaker 2: Oh, absolutely, Basically because the computer power has gotten so
27:46
Speaker 2: much better. It has become much easier for computers to
27:50
Speaker 2: generate multiple maps hundreds of thousands of maps that all
27:55
Speaker 2: comply with one person, one vote and use pre existing
27:59
Speaker 2: voting or voterage stration data to maximize the number of
28:02
Speaker 2: Republican or Democratic districts. So it's no longer throwing drawing maps,
28:07
Speaker 2: you know, taking out big maps and drawing and using
28:09
Speaker 2: crayon and drawing on the floor. You can you can
28:11
Speaker 2: generate almost an infinite number of maps by programming them
28:16
Speaker 2: to respect certain factors and not others. And that's that
28:20
Speaker 2: makes it incredibly easy. And then we're now the level
28:23
Speaker 2: of you know, hyperpartisanship legislatures as such that they're also
28:26
Speaker 2: willing to do it. There's been something of a pushback,
28:29
Speaker 2: and I mentioned in California and New York have const
28:32
Speaker 2: social amendments that can try to limitary mandering, and a
28:35
Speaker 2: handful of other states, either by constcial amendment or by
28:38
Speaker 2: state Supreme Court decision, there have been limits placed on jerrymandering.
28:43
Speaker 2: But where the legislatures are not limited, they have kind
28:51
Speaker 2: of infinite capacity to come up with maps that will
28:55
Speaker 2: do as much as possible to maximize the power of
28:58
Speaker 2: the of the party in power.
29:00
Speaker 1: And it seems like the democratic states are the ones
29:03
Speaker 1: with those independent commissions, etc. Whereas the Republican states are
29:08
Speaker 1: still mostly relying on their legislatures.
29:11
Speaker 2: Yeah, I think there is some control in but I
29:15
Speaker 2: think it's relatively limited, which you're right. In Arizona, which
29:18
Speaker 2: I guess is a purple state, has a commission. But
29:21
Speaker 2: I think you know, we're talking about California, New York,
29:24
Speaker 2: New Jersey, and then court decisions. I think Pennsylvania, maybe
29:28
Speaker 2: now Wisconsin. I'm not quite sure where thinks standard was consiable.
29:32
Speaker 1: I think this topic is pretty depressing because how do
29:35
Speaker 1: you take control away from the party in control, even
29:40
Speaker 1: if you have more people voting with the minority party.
29:45
Speaker 1: If the party in control can redistrict in these ways,
29:49
Speaker 1: I mean.
29:49
Speaker 2: The main thing, of course, would be just a surgeon
29:52
Speaker 2: voting in the opposite direction, and that sometimes happens. But
29:56
Speaker 2: you're right, if the party in power is locked in
30:00
Speaker 2: with a super majority, even if the minority party wins.
30:04
Speaker 2: The governorship has often happened to some of these states
30:07
Speaker 2: where you have a publican legislature and a democratic governor.
30:10
Speaker 2: I think describes Wisconsin, for example. The governor can block
30:14
Speaker 2: some things, but the governor can't really force anything to happen,
30:16
Speaker 2: So no you're right. This is the problem. This is
30:18
Speaker 2: why you know sixty years ago the Supreme Court interviewed
30:22
Speaker 2: with one person, one vote because the States couldn't fix it.
30:25
Speaker 2: And this is why so many people are unhappy that
30:27
Speaker 2: the Supreme Court, now it's about six years ago, said
30:30
Speaker 2: we're not going to interfere with parties and Jerry Mandarin.
30:33
Speaker 2: It makes it very hard to undo a Jerry manner.
30:36
Speaker 2: If it's successful, it's very hard to undo. The only
30:38
Speaker 2: possibility we won't know about will happen in Texas until
30:41
Speaker 2: the next November. It's the party in power gets too
30:45
Speaker 2: greedy and spreads itself too thin and then loses seats.
30:48
Speaker 2: That would be the come upance. But we don't know
30:52
Speaker 2: what's going to happen right now.
30:53
Speaker 1: No, it all seems pretty amorphous. Thanks so much, rich
30:57
Speaker 1: That's Professor Richard Raffault of Columbia Law School, and that's
31:01
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