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Weekend Law: Redistricting Frenzy & FDA Allows Flavored Vapes · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: Are you.
0:12
Speaker 2: Ready to use your votes?
0:15
Speaker 1: Are you ready to vote?
0:17
Speaker 3: Like you.
0:19
Speaker 1: Because your loves the prime water In Montgomery, Alabama, the
0:24
Speaker 1: city considered the crucible of the civil rights movement, thousands
0:28
Speaker 1: of people rally this month to protest against the state's
0:32
Speaker 1: efforts to dismantle congressional districts that have black representatives. Civil
0:37
Speaker 1: rights leaders, democratic members of Congress from across the country,
0:41
Speaker 1: union leaders and pastors denounced the Supreme Court's Calais ruling,
0:46
Speaker 1: which eviscerated the landmark Voting Rights Act and set off
0:50
Speaker 1: a frenzy by Southern states to reshape voting districts with
0:54
Speaker 1: large minority populations. New Jersey Democratic Senator Cory Booker compared
1:00
Speaker 1: Calais to pass Supreme Court decisions like dred Scott and
1:05
Speaker 1: Plessy versus Ferguson.
1:07
Speaker 2: You see, we have seen this before for some people
1:11
Speaker 2: in black groups try to deny or take away our rights.
1:16
Speaker 1: But this week a stunning legal victory for Democrats as
1:20
Speaker 1: a panel of federal judges refuse to let Alabama use
1:24
Speaker 1: a congressional map it adopted three years ago because it
1:28
Speaker 1: intentionally discriminated on the basis of race. The year's long
1:33
Speaker 1: legal fight over Alabama's maps includes several interventions by the
1:38
Speaker 1: Supreme Court, and Republicans are asking the court to intervene
1:42
Speaker 1: again and reverse this week's decision. My guest is elections
1:46
Speaker 1: law expert Richard Brefalt, a professor at Columbia Law School,
1:50
Speaker 1: which there have been so many twists and turns in
1:53
Speaker 1: the fight over Alabama's congressional maps give us some of
1:57
Speaker 1: the background.
1:58
Speaker 4: It's incredibly confusing. So this latest Alabama case really is
2:03
Speaker 4: the ongoing saga of endless litigation following the twenty twenty census.
2:07
Speaker 4: In the Alabama's redistricting, Alabama has seven House seats that
2:11
Speaker 4: didn't change as a result of a court decision some
2:15
Speaker 4: decades earlier. Basically, it has a white majority in six
2:18
Speaker 4: seats and a black majority in one. This was as
2:20
Speaker 4: of twenty twenty, although the state is about thirty percent black.
2:24
Speaker 4: Voting Rights Act case was brought challenging that A three
2:28
Speaker 4: judge court that's the kind of court that's created when
2:30
Speaker 4: challenges heard districting are brought, found that Alabama had violated
2:35
Speaker 4: the Voting Rights Act that had engaged in a legal
2:38
Speaker 4: vote dilution and ordered a new map, But the Supreme
2:41
Speaker 4: Court stepped in before the twenty twenty two election and said, no,
2:45
Speaker 4: it's too close to the election, although it was actually
2:47
Speaker 4: quite a number of months before. It was I think
2:49
Speaker 4: in the spring, but they said it was probably too
2:51
Speaker 4: close to the primaries. And so that case ultimately one
2:54
Speaker 4: to the Supreme Court, and many people surprised. The Supreme
2:57
Speaker 4: Court by a voter five to four and I think
3:00
Speaker 4: it was twenty twenty three voted to affirm with the
3:03
Speaker 4: three judge court at founding this concluded Alabama had violated
3:06
Speaker 4: the voting right sack and indicated that Alabama probably should
3:09
Speaker 4: have two but it's all opportunity districts where black voters
3:13
Speaker 4: have a real opportunity to elect their candidate of choice.
3:16
Speaker 4: Went back to the legislature. Legislature, however, did not do that.
3:19
Speaker 4: The legislature basically came up with another plan, which was
3:22
Speaker 4: essentially six white majority one black majority district that was
3:26
Speaker 4: then challenged and the three judge court said, no, you
3:29
Speaker 4: have not complied with our ruling. It still is vote diluted,
3:32
Speaker 4: and we actually think it's unconstitutional because it reflects intentional
3:37
Speaker 4: racial discrimination. So they enjoyed this new map that's sometimes
3:41
Speaker 4: called the twenty twenty three map, and a special master
3:44
Speaker 4: created a map which created two black majority districts, well
3:47
Speaker 4: one I think is just under majority one just over
3:50
Speaker 4: in Alabama for the first time since reconstruction elected to
3:53
Speaker 4: black representatives in twenty twenty four.
3:57
Speaker 1: Then at the end of April, the Supreme Court severely
4:01
Speaker 1: weaken the Voting Rights Act in the Calais decision. Tell
4:04
Speaker 1: us how that affected the fight in Alabama.
4:07
Speaker 4: The Supreme Court significantly, I think the word the Court
4:10
Speaker 4: is using is updated its analysis of vote dilution claims
4:14
Speaker 4: under section to a Voting Rights Act, making it much
4:16
Speaker 4: much much harder for them to prevail. At that point,
4:20
Speaker 4: Alabama came in and said, you know, we want to
4:22
Speaker 4: reopen this case, and so with the Supreme Court at dawn.
4:25
Speaker 4: In the earlier Alabama case, is basically sustained the injunction
4:29
Speaker 4: that the lower court had issued barring Alabama from using
4:34
Speaker 4: its own legislatively adopted map. So they went to the
4:37
Speaker 4: Supreme Court this is in either late April or very
4:40
Speaker 4: early May, and asked the court to lift the injunction
4:44
Speaker 4: on the legislature's twenty twenty three map. The court agreed
4:47
Speaker 4: and said we're sending this back to the lower court
4:50
Speaker 4: for them to reconsider their decision in light of our
4:53
Speaker 4: decision in Calais. They didn't say the lower court was wrong,
4:56
Speaker 4: but they just said, obviously the legal rules have changed,
4:59
Speaker 4: we want the lower court to reconsider. While that was happening,
5:03
Speaker 4: the Governor of Alabama called a special session of the legislature.
5:06
Speaker 4: At this point, primaries were already ongoing for the Alabama
5:10
Speaker 4: candidates for Congress. Basically, the governor said and got the
5:13
Speaker 4: legislature who agree to stop the primaries in four of
5:16
Speaker 4: the districts, the two black majority districts and adjacent districts
5:20
Speaker 4: which would be most likely impacted by this, and said,
5:22
Speaker 4: we really want to go back to the twenty twenty
5:24
Speaker 4: three map. So they've now stopped the primaries in those
5:27
Speaker 4: four districts, and the legislature basically thinks that with the
5:31
Speaker 4: injunction lifted the twenty twenty three map, which is the
5:36
Speaker 4: legislature's map, which would be six majority wide one black
5:39
Speaker 4: majority district then also for partisan purposes, likely six Republican
5:43
Speaker 4: and one Democratic. That was the result of the legislature's
5:46
Speaker 4: vote in early May. The plaintiffs who brought the original
5:50
Speaker 4: case then went right back to court before the three
5:53
Speaker 4: judge court which had imposed the map that was used
5:56
Speaker 4: in the last election.
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Speaker 1: Will you explain the decision of the three judge panel,
6:00
Speaker 1: which by the way, consisted of two Trump appointees and
6:04
Speaker 1: one Clinton appointee.
6:06
Speaker 4: And that court issued a one hundred and three page
6:09
Speaker 4: opinion where they concluded that the legislature's recent action was
6:14
Speaker 4: both unconstitutional and violated the Voting Rights Act even under
6:18
Speaker 4: the Calais standard. And the court basically said, the Supreme
6:22
Speaker 4: Court did not say that we were wrong before. They
6:25
Speaker 4: just said you've got to reconsider. And the court went
6:27
Speaker 4: through the entire process by which Alabama adopted the twenty
6:31
Speaker 4: twenty three plan, including its refusal to create a second
6:34
Speaker 4: black majority district, the kinds of considerations it considered its deliberations,
6:39
Speaker 4: and concluded that that was intentional racial discrimination. They then
6:43
Speaker 4: also applied the Calais standard and said cala doesn't mean
6:46
Speaker 4: you never can prove vote dilution. And they found that
6:49
Speaker 4: given that there was intentional racial discrimination and given other factors,
6:54
Speaker 4: and given just how much this appears to be driven
6:56
Speaker 4: by race, and how much brace is dominant in Alabama politics,
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Speaker 4: that this really was more race than party and therefore
7:03
Speaker 4: violated the Voting Rights Act two. And then they also
7:06
Speaker 4: had some analysis about what's called the Percell principle, which
7:09
Speaker 4: is the idea that courts should not step in and
7:11
Speaker 4: change the voting rules on the election. But of course
7:14
Speaker 4: they pointed out, it's kind of a mess as to
7:16
Speaker 4: what's the baseline. Here is the baseline the twenty twenty
7:20
Speaker 4: four map, which is what the state was using up
7:22
Speaker 4: until early May, or is the baseline the map that
7:26
Speaker 4: the state has just reimposed. And the court said, going
7:29
Speaker 4: through the analysis that that case requires, we think the
7:32
Speaker 4: disruption is so great if the state's going to go
7:35
Speaker 4: back to that old twenty twenty three map, and that
7:37
Speaker 4: there's actually less disruption if they stick with the twenty
7:40
Speaker 4: twenty four maps. So they also felt that justified the
7:43
Speaker 4: injunction is to kind of summon up. In granting an
7:46
Speaker 4: injunction like this, the court has to be conus they
7:48
Speaker 4: are both the substantive merits, but also whether an injunction
7:52
Speaker 4: is wise, and they said yes on the substant merits.
7:55
Speaker 4: The Alabama plan is both unconstitutional and violates the voting
7:58
Speaker 4: Rights Act and on the rules for an injunction. We
8:02
Speaker 4: think actually that this is really preserving the status quo
8:06
Speaker 4: rather than disrupting it on the the election.
8:08
Speaker 1: So one hundred and two pages of opinion. Do you
8:11
Speaker 1: think the panel's findings will hold up under Supreme Court review?
8:16
Speaker 4: I think they did a good job. I mean, the
8:17
Speaker 4: real question at this point is how deeply is the
8:20
Speaker 4: Supreme Court going to get into reviewing this decision. I mean,
8:24
Speaker 4: the time really is tight here, and you know, they
8:27
Speaker 4: make extensive findings of discrimination. Is the Supreme Court really
8:32
Speaker 4: in a position to reject those right now? Though they've
8:36
Speaker 4: done that in other cases, so I don't want to
8:39
Speaker 4: say they won't. There was a recent case from Texas
8:41
Speaker 4: where they basically rejected the lower court's findings about really
8:45
Speaker 4: much discussion. But they would have to do that. They
8:48
Speaker 4: would have to say that the finding of discrimination is wrong,
8:53
Speaker 4: and you know it's the Supreme Court. They could do
8:55
Speaker 4: it on the shadow docket and the procurium opinion with
8:58
Speaker 4: long descents. They could. But I do think that the
9:01
Speaker 4: three judge court went through the process by which Alabama
9:05
Speaker 4: did this in twenty twenty three, which is the map
9:09
Speaker 4: that would come into effect and great detail and spend
9:12
Speaker 4: a lot of time basically making their case for both
9:15
Speaker 4: intentional discrimination and for trying to comport with CALA. And
9:19
Speaker 4: so they were seeking to be faithful to what the
9:22
Speaker 4: Supreme Court did. They were not saying, you know, we're
9:25
Speaker 4: not going to follow. They actually said that CALA gives
9:28
Speaker 4: greater way to making sure the Voting Rights Act is
9:31
Speaker 4: closer to the Constitution. That really shown me the applied
9:34
Speaker 4: in cases where there's reasonable suspicion of intentional discrimination, and
9:38
Speaker 4: they make that case. They also spend a lot of
9:40
Speaker 4: time trying to make the case that this was race
9:43
Speaker 4: and not party, even though the two were intertwined by
9:47
Speaker 4: talking about how in Alabama even white Democrats find a
9:51
Speaker 4: heart to vote for a black candidate. Black Republicans don't
9:54
Speaker 4: do very well with Republican voters, and how there are
9:57
Speaker 4: many relatively socially conservative Calabanians but they vote Democratic because
10:03
Speaker 4: of the party's position on race issues as opposed to
10:05
Speaker 4: a Publican party. So, I mean, I think it's a struggle.
10:08
Speaker 4: The Supreme Court standard in CALA saying you have to
10:10
Speaker 4: say it's race and that party is an incredibly difficult standard.
10:13
Speaker 4: And we'll see if the Supreme Court finds what this
10:16
Speaker 4: Court did as persuasive, but they certainly spend some pages
10:20
Speaker 4: trying to make that case.
10:21
Speaker 1: The Supreme Court can't make new findings of facts, so
10:24
Speaker 1: what's the review process?
10:25
Speaker 4: Then they'd have to decide what their weight is. The
10:28
Speaker 4: Court went through the blow by blow of the process
10:31
Speaker 4: by which the legislature in twenty twenty three enacted the map.
10:35
Speaker 4: It's kind of a funny case because the case comes
10:37
Speaker 4: up to the Supreme Court based on what the legislature
10:41
Speaker 4: did just like a couple of weeks ago. That's the
10:43
Speaker 4: one that basically said we're putting off the primaries. But
10:46
Speaker 4: it was the Supreme Court, by lifting the injunction, that
10:49
Speaker 4: put the twenty twenty three map back into effects of
10:52
Speaker 4: this case is very much about the twenty twenty three map,
10:54
Speaker 4: and with this Court gives a lot of weight to
10:56
Speaker 4: the fact that the legislature in twenty twenty three, when
11:00
Speaker 4: it was told to remedy a vote dilution finding, didn't
11:04
Speaker 4: really do that. That and the process at which they did,
11:07
Speaker 4: and the factors they cited and the findings they issued
11:10
Speaker 4: all smacked of intentional discrimination. So it's kind of weird
11:14
Speaker 4: because in some ways, it's not really a review of
11:16
Speaker 4: what the legislature just did. It's a review of what
11:19
Speaker 4: they did three years ago. And the law has changed
11:23
Speaker 4: since then with KELA, So it's kind of like putting
11:25
Speaker 4: yourself back into what things were like then and trying
11:28
Speaker 4: to figure out was the legislature acting unconstitutionally when it
11:33
Speaker 4: did what it did in refusing to create the black
11:36
Speaker 4: majority district that they had been more or less directed
11:40
Speaker 4: to do.
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Speaker 1: Okay, Rich, you're going to stay with me. Coming up next,
11:44
Speaker 1: we're going to discuss a possible easy Supreme Court out
11:48
Speaker 1: here and the frenzied Republican redistricting in the South. I'm
11:52
Speaker 1: June Grosso and this is Bloomberg. The Supreme Court's decision
11:57
Speaker 1: last month severely weakening minority protections under the Voting Rights
12:02
Speaker 1: Act has set off a new wave of frenzied redistricting
12:06
Speaker 1: in states across the South, with Republicans scrambling to erase
12:10
Speaker 1: majority black US House seats before the midterms. The only
12:15
Speaker 1: Southern state that seems to be bucking the pressure from
12:18
Speaker 1: President Trump is South Carolina, where the Republican led state
12:23
Speaker 1: Senate shot down in effort to redraw House districts. South
12:27
Speaker 1: Carolina Senate Majority Leader Shane Massey said there was no
12:31
Speaker 1: reason to redraw the state's maps.
12:34
Speaker 3: We are not Louisiana, we are not Alabama, we are
12:38
Speaker 3: not Mississippi. Our map is not unconstitutional.
12:44
Speaker 1: Legal challenges are continuing over redrawn maps in Alabama, Florida, Louisiana, Missouri,
12:51
Speaker 1: and Tennessee. I've been talking to Columbia Law School professor
12:54
Speaker 1: Richard Brefault, which let's go back to the Alabama fight.
12:59
Speaker 1: Alabama official are making an emergency request to the Supreme
13:03
Speaker 1: Court to reinstate a Republican drawn voting map after a
13:06
Speaker 1: panel of judges rejected the map for the third time
13:10
Speaker 1: as the product of intentional discrimination against black voters. Wouldn't
13:16
Speaker 1: it be an easier road for the justices to turn
13:18
Speaker 1: down the emergency request rather than reversing the panel's decision
13:24
Speaker 1: in what would be the first major test of the
13:26
Speaker 1: new standard that they've set in the Calais decision.
13:30
Speaker 4: On the other hand, they could, of course stay it,
13:32
Speaker 4: which they have been known to do. That's effectively what
13:35
Speaker 4: they did three years ago in the Milligan case. They
13:38
Speaker 4: stayed the Court's decision striking down the twenty twenty one map,
13:42
Speaker 4: and then a year and a half later they sustained
13:44
Speaker 4: the lower corporate after having blocked their decision for a
13:46
Speaker 4: year and a half. It is not out of the question,
13:49
Speaker 4: given that history, that they might stay this injunction, allow
13:54
Speaker 4: the election to go forward on the twenty twenty three map,
13:57
Speaker 4: and then conceivably this case comes up on the marriage
14:00
Speaker 4: next year. I mean, I don't want to predict that,
14:03
Speaker 4: but it's not out of a question that they would
14:06
Speaker 4: simply stay this, possibly on Percell grounds. Percell is the
14:10
Speaker 4: one about not acting too close to the election, but
14:12
Speaker 4: that itself is just a mare's mess, because you know,
14:15
Speaker 4: that's always kind of figured out what's the status quo,
14:18
Speaker 4: and is the status quo the twenty twenty three mappers,
14:22
Speaker 4: the status quo the twenty twenty four map, which this
14:27
Speaker 4: would put back in.
14:28
Speaker 1: It's surprisingly complicated, surprisingly complicated and seemingly never ending. But
14:34
Speaker 1: as far as the per Cell principle is concerned, does
14:37
Speaker 1: the Supreme Court even consistently follow that? I mean, the
14:42
Speaker 1: Cala decision came down at the end of April, and
14:46
Speaker 1: look at the mess it's causing.
14:48
Speaker 4: It's been very vigorous about it sometimes, but it's not
14:51
Speaker 4: clear that they think it applies to them. It really
14:53
Speaker 4: is very much about lower courts. I mean, after all,
14:56
Speaker 4: Cala itself, as the mess we've seen in Louisiana and Alabama,
15:00
Speaker 4: cala itself has kind of been consistent with the Perceel principle.
15:03
Speaker 4: If they were serious about it, they would have said
15:05
Speaker 4: we're not going to apply it to this year, or
15:07
Speaker 4: they would have decided much earlier, or they would have
15:09
Speaker 4: waited to left the election season was over.
15:11
Speaker 1: And because the Alabama governor has moved the special primaries
15:15
Speaker 1: to August, does that give the Supreme Court a little
15:20
Speaker 1: more breathing room?
15:21
Speaker 4: I guess yeah, But they don't have a lot of time,
15:23
Speaker 4: I think because in order to have that primary in August,
15:27
Speaker 4: I mean, a lot of the opinion and a lot
15:28
Speaker 4: of the trial testimony in this case on this injunction
15:31
Speaker 4: was about how easy your harden is it going to
15:33
Speaker 4: be for the election administrators to redraw the lines and
15:37
Speaker 4: to basically to move around all of the voter information
15:40
Speaker 4: and make sure voters are in the right place, what
15:43
Speaker 4: their precincts are, and that they're voting in replace And
15:46
Speaker 4: normally this is a process that takes several months, but
15:48
Speaker 4: it would have to be done very soon because the
15:50
Speaker 4: primary might not be intil August. Candidates have to file
15:54
Speaker 4: before that. I don't know the details of the Alabama process,
15:57
Speaker 4: but we're now three to three and a half months
16:00
Speaker 4: before that primary. Typically candidates need to file before then
16:03
Speaker 4: and know what districts they're running in, and the election
16:07
Speaker 4: commissioners the state local election boards need to have that
16:10
Speaker 4: done asaay. And so I think, actually, if the Court's
16:14
Speaker 4: going to do something here, I expect they'll be next week.
16:18
Speaker 4: I mean, they really don't have much time. However, this
16:20
Speaker 4: election is going to happen. I think the administrators need
16:23
Speaker 4: to know this already. I mean, they need to know it.
16:26
Speaker 4: Yesterday they said they need to know it very soon,
16:28
Speaker 4: and the candidates need to know it so they know
16:30
Speaker 4: where they're running. So hopefully, I mean what they of
16:34
Speaker 4: the weeks, I mean, they really should do it over
16:36
Speaker 4: the weekend, but early next week. And obviously this is
16:38
Speaker 4: while they're also doing all of their other major cases.
16:40
Speaker 1: And the three judge panel heard testimony from Alabama's Director
16:44
Speaker 1: of Elections who acknowledge that when the voter reassignment process
16:48
Speaker 1: is rushed, voters may accidentally be assigned to the wrong
16:52
Speaker 1: district and provided the wrong ballot. That's apparently happened before,
16:57
Speaker 1: and which there's been a lot of criticism of the
16:59
Speaker 1: Supreme Court, calling the conservative justices out for this Calais decision,
17:04
Speaker 1: and it was six to three with the Democratic appointees
17:07
Speaker 1: in descent. And if the Supreme Court reversed this Alabama decision,
17:13
Speaker 1: wouldn't it open them up to more claims of partisanship.
17:16
Speaker 4: Yeah, I mean, and again I think maybe less likely
17:19
Speaker 4: to reverse it versus I think it's stay is more
17:22
Speaker 4: plausible because in some ways that comes across as well.
17:25
Speaker 4: I mean, some sense that almost makes sense. We don't
17:27
Speaker 4: have time to think about this, and it just really
17:29
Speaker 4: turns on what you think the status quod. I think
17:31
Speaker 4: it would be hard for them to reverse it on
17:34
Speaker 4: the shadow docket because there's a lot of substance here.
17:37
Speaker 4: That doesn't mean they won't. I think it's stay is
17:39
Speaker 4: more plausible because the state can emphasize, you know, the
17:43
Speaker 4: fact that these are heart issues, but that there's an
17:45
Speaker 4: election happening, and that the baseline is the twenty twenty
17:49
Speaker 4: three map, which the state legislature did adopt, was the
17:52
Speaker 4: twenty four map was imposed by a quarter Special Master,
17:56
Speaker 4: and the spring cut has tended to prefer maps that
17:59
Speaker 4: were adopted by the legislatures, most according post one, so
18:02
Speaker 4: it would not surprise me if there was a stay.
18:04
Speaker 4: I think a substant of reversal would be a lot
18:06
Speaker 4: more work.
18:07
Speaker 1: Since the Calais decision, Southern states have been in a
18:11
Speaker 1: sort of frenzy to reshape voting districts to eliminate House
18:16
Speaker 1: seats held by black representatives. But this week South Carolina
18:21
Speaker 1: state senators adjourned without drawing up a new map to
18:25
Speaker 1: eliminate that state's one majority black House seat. Five Republicans
18:31
Speaker 1: joined Democrats, basically saying it was too late because tens
18:35
Speaker 1: of thousands of votes had already been cast and what
18:39
Speaker 1: would they do about that?
18:40
Speaker 4: But remember had already started in Louisiana when the state
18:43
Speaker 4: changed it, and I think it was about to start
18:44
Speaker 4: in Alabama. I do wonder about South Carolina whether one
18:48
Speaker 4: thing is it may be that it's so late that
18:50
Speaker 4: Trump can't primary them as he did the Republicans who
18:53
Speaker 4: didn't go his way in Indiana, and the other, of
18:56
Speaker 4: course the district is getting rid of was Jim Clyburn.
18:59
Speaker 4: He's in his eighties. He's an icon of South Carolina.
19:02
Speaker 4: It maybe that they're kind of banking on him retiring,
19:06
Speaker 4: or that it may be easier in a future year,
19:09
Speaker 4: like next year, to get rid of it. They might
19:11
Speaker 4: change it for twenty twenty eight, and maybe at that
19:14
Speaker 4: point they would give him kind of a signal to
19:16
Speaker 4: retire and it would be more of a blind slate.
19:19
Speaker 4: They may not want to be seen as taking out,
19:22
Speaker 4: you know, kind of a longstanding important figure in the state.
19:26
Speaker 4: And then that it might be easier that he retires,
19:29
Speaker 4: or if they rewrite the map, that might persuade him
19:31
Speaker 4: to retire. Right now, it's too late.
19:33
Speaker 1: And in Florida, where there are four seats that Dessanti
19:37
Speaker 1: is created for Republicans, a judge who's a Dessanti's appointee
19:42
Speaker 1: rule that the state could continue to use those maps,
19:45
Speaker 1: even though they have a law against partisan gerrymandering, and
19:49
Speaker 1: even though a dessanti is aide who drew the new
19:53
Speaker 1: map said that he had done so based partly on
19:56
Speaker 1: the part is in breakdown of voters. But still the
19:59
Speaker 1: judge said there was insufficient evidence of impermissible intent, and
20:04
Speaker 1: he also cited the Percell principle to keep in place
20:07
Speaker 1: the map that just was made in May.
20:11
Speaker 4: That is a problem with the per cell principle is
20:14
Speaker 4: that it only applies to courts. It doesn't apply to legislatures,
20:18
Speaker 4: so they can do whatever they want. And indeed, you
20:20
Speaker 4: see the Alabama three judge courts sort of basically saying, well,
20:23
Speaker 4: the reason we're doing this is at this point we're
20:26
Speaker 4: concerned about the disruption caused by the legislatures. So we're
20:29
Speaker 4: not so concerned about our disruption because for one thing,
20:31
Speaker 4: also the plaintiffs came to court instantly. The other thing
20:34
Speaker 4: that I found troubling is that he raised some questions about,
20:37
Speaker 4: in some sense the constitutionality of the Flora constitutional provision
20:41
Speaker 4: that Bar's part is in jerrymnnerin because it was enacted
20:44
Speaker 4: as part of a general provision dealing with districting and
20:48
Speaker 4: it provided for some attention to race, and he suggested, well,
20:52
Speaker 4: maybe that's unconstitutional now after Cala, which I don't know
20:56
Speaker 4: that that's ripe, and he raised that question. If that's
20:58
Speaker 4: the case, the whole amendment fails. I mean, again, it's
21:01
Speaker 4: a pretty audacious argument to say that both the tension
21:05
Speaker 4: to race that the Florida Constitution has as unconstitutionals, but
21:09
Speaker 4: then to say that the fact that that part might
21:11
Speaker 4: be taint the entire amendment and so you can't even
21:14
Speaker 4: enforce the anti partisan part. Leaving aside his factual finding.
21:18
Speaker 4: Now he is only an intermediate judge. Or could go
21:20
Speaker 4: to Florida Supreme Court again they had the same timing problem,
21:24
Speaker 4: and of course again it is a court. I think
21:26
Speaker 4: all the judges are Republican, and many of them, if
21:28
Speaker 4: not most of them, were probably appointed by Governor DeSantis.
21:31
Speaker 1: Yes, all of the judges are Republican, and six out
21:34
Speaker 1: of seven were appointed by DeSantis, so that looks like
21:38
Speaker 1: an uphill battle. Finally, once the primaries are over, do
21:43
Speaker 1: you think candidates that lost their seats because of this
21:47
Speaker 1: redistricting to eliminate black majority districts have any challenges they
21:53
Speaker 1: can raise?
21:54
Speaker 4: I mean, I think these mitigations are all going to
21:56
Speaker 4: be resolved very soon. Courts are going to stop hearing
21:59
Speaker 4: them in and it is may going into June. I
22:02
Speaker 4: don't think that's going to be the issue. I think
22:04
Speaker 4: whoever wins is going to win. I do think we
22:07
Speaker 4: may see still more redistricting next year for the one
22:10
Speaker 4: that was too late. This year. You know, I think Maryland,
22:13
Speaker 4: where the Democratic legislative leadership declined to get rid of
22:17
Speaker 4: the remaining republicancy after what happened in the other states
22:20
Speaker 4: and after Cala, they and I seem inclined to do that.
22:23
Speaker 4: It's possible that New York will do it. I think
22:26
Speaker 4: we will see at the end of the current legislative session.
22:30
Speaker 4: New York would require state cons social amendment, and that
22:32
Speaker 4: requires action by two legislatures and a voter approval. I
22:36
Speaker 4: think we will see during New York State legislature pass
22:39
Speaker 4: several alternative con social amendments, and then next year, which
22:43
Speaker 4: is the year they really have to make up their minds,
22:46
Speaker 4: pass one of them as to the voters in twenty
22:49
Speaker 4: twenty seven, which would allow changing the congressional districts in
22:52
Speaker 4: New York. Maybe now in Indiana, now that the Trump
22:55
Speaker 4: has gotten rid of some of the Republicans, they might
22:57
Speaker 4: come back and get rid of a Democratic district. Maybe
23:00
Speaker 4: South Collinor will change. So I think we're not done.
23:03
Speaker 1: And what about in Virginia where the state Supreme Court
23:07
Speaker 1: there voided a statewide referendum. Can Democrats try for a
23:11
Speaker 1: redo there?
23:12
Speaker 4: They might try again. I mean I think it was
23:14
Speaker 4: a herculean effort in Virginia to get through what they
23:17
Speaker 4: got through and then to have a court throw it
23:18
Speaker 4: out on how you would say technicality was a real technicality,
23:21
Speaker 4: I mean very technical, somewhat similar to the New York
23:24
Speaker 4: issue about it has to have been done between elections.
23:28
Speaker 4: It's conceivable, but it was really hard for not to
23:30
Speaker 4: pass it in the first place. So who knows that
23:33
Speaker 4: they might try again. Yeah, So I don't think we're
23:35
Speaker 4: done on this. I think we may hear more from
23:37
Speaker 4: the Blue States.
23:38
Speaker 1: This is one area where you can directly see the
23:41
Speaker 1: effects of Supreme Court decisions over the years weakening protections
23:46
Speaker 1: of the Voting Rights Act. Thanks so much, rich for
23:49
Speaker 1: your insights in this complicated area. That's Professor Richard Bruffault
23:53
Speaker 1: of Columbia Law School coming up next on the Bloomberg
23:57
Speaker 1: Law Show. For the first time, the FDA allows the
24:01
Speaker 1: sale of unapproved e cigarettes. I'm June Grosso and you're
24:05
Speaker 1: listening to Bloomberg. New FDA guidelines allow companies to sell
24:13
Speaker 1: unapproved electronic cigarettes and nicotine pouches, and that includes the
24:18
Speaker 1: fruit flavored vapes that are especially appealing to kids. This
24:22
Speaker 1: breaks with long standing FDA policy requiring scientific verification before
24:29
Speaker 1: any new products are introduced. Senior officials in the agency's
24:33
Speaker 1: Tobacco Center were blindsided by the new guidelines, according to
24:38
Speaker 1: the Associated Press, and earlier this month, the FDA authorized
24:42
Speaker 1: this sale of mango and blueberry flavored vapes, the first
24:46
Speaker 1: time fruit flavored vapes have been authorized. At a hearing
24:50
Speaker 1: last week, Democratic Senator Dick Durbin of Illinois question the
24:54
Speaker 1: director of the NIH, doctor J. Baticaria, about the FDA's act.
25:00
Speaker 3: Do you realize that the announced policy of this administration
25:03
Speaker 3: within the last two weeks is going to make it
25:06
Speaker 3: easier for these companies to peddle fruit Monster vaping, Candy
25:10
Speaker 3: King vaping, Raspberry Slushy bake vaping to our children and
25:15
Speaker 3: junior high in high school.
25:17
Speaker 2: Now, Senator, I think that vaping for kids is a
25:20
Speaker 2: dangerous thing, and I think that is the role of
25:22
Speaker 2: the NIH isn't to set policy. It's to do research
25:26
Speaker 2: to document the ways to address these health problems.
25:29
Speaker 3: We've conceded the obvious. They're peddling flavors that attract children,
25:35
Speaker 3: children who don't have the maturity to make the decision,
25:38
Speaker 3: and they become addicted to a product which is dangerous
25:40
Speaker 3: to them.
25:41
Speaker 1: Of the more than one point six million middle and
25:44
Speaker 1: high school students who currently vape, nearly ninety percent use
25:48
Speaker 1: flavored east cigarettes, with fruit flavors being the most popular.
25:53
Speaker 1: My guest is healthcare attorney Harry Nelson, a partner at
25:57
Speaker 1: Leech Tishman Nelson Hardiman, tell us about these new rules.
26:02
Speaker 5: So, we have this law, that Tobacco Control Act, which
26:06
Speaker 5: requires that new tobacco products can't be legally marketed without
26:10
Speaker 5: pre market authorization. And the law gives the FDA the
26:13
Speaker 5: power to deny this pre market authorization unless there's a
26:17
Speaker 5: showing that the product would appropriately protect the public health.
26:21
Speaker 5: And so what's happened now is that the FDA put
26:24
Speaker 5: out a guidance statement that it's not going to prioritize
26:28
Speaker 5: enforcement against certain unauthorized e cigarette products and nicotine oral
26:33
Speaker 5: nicotine pouch products, Meaning the government basically said, even though
26:36
Speaker 5: these products are not legally on the market, the government
26:40
Speaker 5: is not going to go after them.
26:43
Speaker 1: And this breaks with the FDA policy of requiring scientific verification.
26:49
Speaker 5: Yeah, this is definitely a relaxation of the federal policy
26:53
Speaker 5: of being tough on tobacco products and being concerned about
26:58
Speaker 5: public health, and it's basically the FDA saying this is
27:01
Speaker 5: a low priority and even though what you're doing is
27:05
Speaker 5: not legal, let's call it at best grain market, these
27:08
Speaker 5: products can stay on the shelves the stores even though
27:10
Speaker 5: they're still in scientific review, even though the FDA has
27:13
Speaker 5: not ruled on them. And this is really a flip
27:16
Speaker 5: from where we were, you know, just a year and
27:18
Speaker 5: a half ago, where the FDA rejected the idea that
27:21
Speaker 5: having an application on file was sufficient to create a
27:25
Speaker 5: safe harbor to allow these products to be out there.
27:27
Speaker 5: So previously the FDA would not allow these products to
27:30
Speaker 5: be on shelves, And now it sounds like the enforcement
27:33
Speaker 5: climate has really completely gone one hundred and eighty degrees
27:36
Speaker 5: and the FDA is going to basically soften its position
27:40
Speaker 5: and allow a new lane kind of for grain market
27:43
Speaker 5: tobacco products.
27:44
Speaker 1: I mean, is this odd timing because it was posted
27:48
Speaker 1: just days before the former FDA commissioner resigned.
27:52
Speaker 5: Yeah, it definitely seems like this kind of reflects a
27:56
Speaker 5: little bit of the chaos that is going on in
28:00
Speaker 5: the FDA. A lot of the reporting around the story
28:02
Speaker 5: has emphasized that the senior leadership and the staff within
28:06
Speaker 5: the Tobacco Center were basically blindsided, and that this appeared
28:11
Speaker 5: just before Commissioner Maccari resigned, So there seems to be
28:16
Speaker 5: a lot of upheaval and a little bit of chaos
28:19
Speaker 5: at the FDA, and certainly nobody who's in the tobacco
28:23
Speaker 5: regulation group at the FDA saw this coming or seems
28:26
Speaker 5: to be supportive of this new relax in action.
28:29
Speaker 1: So the FDA spokesperson said, this approach strengthen's protections against
28:34
Speaker 1: youth nicotine addiction while supporting evidence based alternatives for adult
28:39
Speaker 1: smoke or seeking to move away from combustible tobacco products whatever.
28:44
Speaker 5: That it's interesting. Certainly even the folks in the administration
28:47
Speaker 5: who are supporting the relaxation of tobacco are trying to
28:51
Speaker 5: emphasize that this is for adult products and that they
28:53
Speaker 5: are not loosening standards on tobacco products that are being
28:57
Speaker 5: used by minors. So they're trying to, you know, still
29:02
Speaker 5: reserve the right to be more aggressive in enforcement against
29:06
Speaker 5: products that appeal to teens and to focus on just
29:09
Speaker 5: letting adults have more leeway and just not investing enforcement
29:14
Speaker 5: dollars into this product market.
29:17
Speaker 1: Hasn't the FDA resisted approving fruit flavored or candy flavored
29:23
Speaker 1: vapes because those are the flavors that attract kids. I mean,
29:27
Speaker 1: the Supreme Court even heard a case and upheld the
29:30
Speaker 1: agency's authority to deny marketing applications for fruit and dessert
29:35
Speaker 1: flavored e cigarettes.
29:37
Speaker 5: So why now, right by the way, there's something like
29:40
Speaker 5: over forty e cigarette products and already twenty of these
29:43
Speaker 5: like flavored pouch varieties out there. I think the FDA
29:47
Speaker 5: has been trying to walk a line, and I think
29:49
Speaker 5: the line shifted a little bit this week. But I
29:51
Speaker 5: think even now, you know, the administration's position is that
29:55
Speaker 5: protecting teen smokers from products that are clearly appealing to
29:59
Speaker 5: ki is still a problem and still something they're going
30:02
Speaker 5: to pursue. But the real message that they're trying to emphasize,
30:05
Speaker 5: I think was loosening the rules on adult tobacco products.
30:09
Speaker 1: The number of underaged vapors has gone down still, about
30:13
Speaker 1: one point sixty three million middle and high school students
30:17
Speaker 1: currently vape. That's a decrease from two point one three
30:22
Speaker 1: million in twenty twenty three. I don't know if that
30:25
Speaker 1: plays any part in this.
30:27
Speaker 5: A lot of the efforts of the last couple of
30:29
Speaker 5: years have definitely reduced use, particularly in and around schools.
30:34
Speaker 5: There was a lot of attention obviously to you know,
30:37
Speaker 5: the nicodeine addiction risk, the potential effect on brain development
30:41
Speaker 5: of like anxiety and add ADHD mood issues coming up
30:45
Speaker 5: from these, and just the kind of significant marketing, and
30:48
Speaker 5: we saw a lot of schools cracked down on this.
30:51
Speaker 5: We saw like social media, you know, sort of really
30:54
Speaker 5: tamping down. So it would not surprise me if there
30:57
Speaker 5: has been a reduction, although I think there's still is
31:00
Speaker 5: clearly a significant use of flavored disposable vapes among teens,
31:04
Speaker 5: and still a problem of social networks being used to
31:08
Speaker 5: get kids who are too young getting them vapes. There
31:12
Speaker 5: still is a problem of illegal retail sales happening, and
31:15
Speaker 5: I think, honestly at one of the big pieces of
31:17
Speaker 5: the story is that we're going to see states, particularly
31:20
Speaker 5: filling the void, you know, as we've seen in other
31:23
Speaker 5: areas of federal enforcement, when the federal government sort of
31:26
Speaker 5: steps back a little bit, We're going to see many
31:29
Speaker 5: states kind of step up and crack down much more
31:32
Speaker 5: on this.
31:33
Speaker 1: Harry, I'm wondering if these new rules have anything to
31:36
Speaker 1: do with Trump, who when he came to office, promised
31:40
Speaker 1: that he would save the vaping industry, and big tobacco
31:45
Speaker 1: companies have made contributions to Trump and his causes.
31:50
Speaker 5: There's no question that this is a case where the
31:52
Speaker 5: federal government is sort of throwing a bone to the
31:55
Speaker 5: tobacco industry that they're really giving them a little bit
31:59
Speaker 5: of room here to ramp up sales and signaling kind
32:03
Speaker 5: of a more permissive environment. So I do think this
32:06
Speaker 5: is clearly a big win for big tobacco and a
32:10
Speaker 5: setback for everybody who've invested in, you know, public health
32:13
Speaker 5: sort of anti tobacco efforts. So you know, particularly companies
32:16
Speaker 5: that have applications pending are going to benefit by being
32:20
Speaker 5: able to promote those products more. They don't have to
32:23
Speaker 5: be as nervous about the unapproved status of their applications.
32:27
Speaker 5: So those are going to be the biggest winners within
32:29
Speaker 5: the tobacco industry.
32:30
Speaker 1: Because I can't think of any reason to do this
32:34
Speaker 1: as far as public health is concerned.
32:37
Speaker 5: You know, I think this is a little bit of
32:39
Speaker 5: a signal that the federal government is kind of moving
32:43
Speaker 5: out of, I don't know what you want to call it,
32:45
Speaker 5: the nanny state. A lot of the public health protections
32:49
Speaker 5: where we've seen federal stepping back have been about individual choice,
32:54
Speaker 5: even where it's not consistent with public health.
32:56
Speaker 3: Right.
32:56
Speaker 5: We've seen that with like federal rollbacks on environmental and
33:00
Speaker 5: climate regulation.
33:01
Speaker 3: Right.
33:01
Speaker 5: I think we see that the states are getting more
33:04
Speaker 5: aggressive and then a lot of directions the federal government's
33:06
Speaker 5: moving in the opposite direction. And I think it partly
33:09
Speaker 5: is about some skepticism about broad federal administrative power. And
33:14
Speaker 5: when people perfectarly on the right are talking about smaller government,
33:17
Speaker 5: part of what that means is less activist laws limiting commerce.
33:22
Speaker 4: Right.
33:23
Speaker 5: I think this is one of those examples.
33:25
Speaker 1: Harry. Let's turn to another issue around FDA approval and
33:28
Speaker 1: the authority of the FDA concerning MiFi pristone, the most
33:33
Speaker 1: widely used abortion pill, and about two weeks ago, a
33:37
Speaker 1: divided Supreme Court continued to allow mifipristone to be dispensed
33:41
Speaker 1: by mail. But the fight over MiFi pristone is going
33:45
Speaker 1: to come back to the court, isn't it.
33:47
Speaker 5: I mean, my read on the Supreme Court decision is
33:51
Speaker 5: that clearly the Supreme Court does not want to revisit this,
33:56
Speaker 5: but clearly, you know, the states remain very active involved
34:00
Speaker 5: in it. And so this is definitely not going to
34:02
Speaker 5: be the last case where the Supreme Court is dealing
34:05
Speaker 5: with mephipristone. The states are are still going to keep
34:08
Speaker 5: arguing that the FDA is exceeding its authority under the Food,
34:11
Speaker 5: Drug and Cosmetic Act, the same exact claim that was
34:14
Speaker 5: made in this case, that the FDA improperly loosened the
34:18
Speaker 5: risk Evaluation and Mitigation Studies REMS restrictions, And we're going
34:22
Speaker 5: to see you know, continued fights right about how much
34:27
Speaker 5: deference the courts should give the FDA on its scientific judgment.
34:30
Speaker 5: And we're still going to see activist states, you know,
34:34
Speaker 5: abortion restrictive states arguing that they have the right so
34:37
Speaker 5: second guests the FDA, and that they can override kind
34:41
Speaker 5: of a national drug approval based on their state policy.
34:43
Speaker 5: So we're still in this environment where the states are
34:46
Speaker 5: increasingly trying to compete in their different you know, regulatory
34:51
Speaker 5: frameworks for this, and we're going to continue to see
34:54
Speaker 5: a number of states trying to be more restrictive, blocking mailing,
34:58
Speaker 5: blocking teleealth access, and this issue is not going anywhere.
35:02
Speaker 5: And you know, I think for people on the reproductive
35:05
Speaker 5: rights protection side of this fight. I think it is
35:08
Speaker 5: good news that the Supreme Court is at least holding
35:11
Speaker 5: true to what it said when it repealed re Vwad,
35:14
Speaker 5: which was that it really wanted to send this issue
35:16
Speaker 5: back to the States and wasn't going to, you know,
35:19
Speaker 5: to intervene to support broader restriction. So this is at
35:23
Speaker 5: least one way in which the Supreme Court has lived
35:25
Speaker 5: up to that signal that it gave. And so I
35:27
Speaker 5: do think it's a positive sign that the Supreme Court
35:30
Speaker 5: is not wanting to get in the way of the FDA,
35:34
Speaker 5: not wanting to get in the way of pharmacies.
35:36
Speaker 1: And how many studies were done showing that mifipristone is safe,
35:41
Speaker 1: but now the FDA is doing a new study, and
35:45
Speaker 1: Bloomberg News reported in December that the FDA was slow
35:49
Speaker 1: walking its safety study until after the midterm elections, although
35:54
Speaker 1: Health and Human Services deny the report.
35:58
Speaker 5: Yeah, it's very interesting. This is clearly a place where
36:00
Speaker 5: the administration is not in a hurry to create political upheaval. Obviously,
36:06
Speaker 5: this issue has been such a galvanizing one in past
36:09
Speaker 5: election cycles. You know, I think a lot of people
36:11
Speaker 5: are thought that this administration would reverse on the safety
36:15
Speaker 5: and effectiveness of mefipristone. It's been, by the way, twenty
36:18
Speaker 5: six years since clinical review, and really there is no
36:22
Speaker 5: record of serious adverse events. So you know, the FDA
36:25
Speaker 5: is clearly under competing political pressures, and it's clearly a
36:29
Speaker 5: much more complicated landscape than a lot of people anticipated.
36:33
Speaker 1: I guess we'll find out more about that after the midterms.
36:37
Speaker 1: Thanks so much for joining me, Harry. That's healthcare attorney
36:40
Speaker 1: Harry Nelson, and that's it for this edition of The
36:43
Speaker 1: Bloomberg Law Show. Remember you can always get the latest
36:46
Speaker 1: legal news on our Bloomberg Law Podcast. You can find
36:49
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37:01
Speaker 1: Wall Street Time. I'm June Grosso, and you're listening to
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