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Redistricting Wars & Abortion Pill Access · Bloomberg Law

0:02
Speaker 1: You're listening to Bloomberg Law with June Grosseol from Bloomberg Radio.
0:09
Speaker 2: The Supreme Court's conservative majority handed Republicans their biggest victory
0:15
Speaker 2: yet in the battle to control the House by gutting
0:18
Speaker 2: the Voting Rights Act last Wednesday. The consequences are already
0:23
Speaker 2: playing out as Republican led states try to pass new
0:27
Speaker 2: maps to eliminate democratic health seats for the midterms. The
0:31
Speaker 2: challenge is the timing, well after filing deadlines for this
0:35
Speaker 2: year's primary elections, and in some cases, after those primary
0:40
Speaker 2: elections have been held. In Louisiana, where the state's map
0:44
Speaker 2: was found unconstitutional by the Supreme Court and the Calais Decision,
0:49
Speaker 2: primary elections had already started and the governor's suspended House races,
0:55
Speaker 2: so the legislature could draw a new map, But voters,
0:58
Speaker 2: voting groups, and cares have filed multiple lawsuits in state
1:02
Speaker 2: and federal courts to try to stop that process. Here's
1:06
Speaker 2: Democratic Louisiana Congressman Cleo Fields.
1:10
Speaker 1: But a governor and a Secretary of State to halt
1:14
Speaker 1: the election in the middle of voting disenfranchised thousands of
1:19
Speaker 1: voters in Louisiana, and to me is Unamerican and unconstitutional
1:23
Speaker 1: in my view.
1:24
Speaker 2: My guest is Jonathan Diaz, director of voting Advocacy in
1:28
Speaker 2: Partnerships at the Campaign Legal Center. Jonathan, It's only been
1:32
Speaker 2: five days since the Supreme Court's decision eviscerating the Voting
1:37
Speaker 2: Rights Act, but are we already seeing the early results
1:42
Speaker 2: of that decision.
1:43
Speaker 3: So the Supreme Court's decision in Calais versus Louisiana has
1:48
Speaker 3: really fundamentally altered the scope of federal legal protections for
1:54
Speaker 3: voting rights. It is the latest in what has been
1:58
Speaker 3: a long series of decisions the Roberts Court over the
2:01
Speaker 3: last fifteen years, slowly chipping away at the Voting Rights Act,
2:05
Speaker 3: the crown jewel of the civil rights movement. And with
2:08
Speaker 3: this sort of final blow, it has really rendered the
2:11
Speaker 3: Voting Rights Act, as Justice Kagan said and her dissent,
2:14
Speaker 3: a dead letter in this decision. In Bernovich another decision
2:18
Speaker 3: from twenty twenty one, even in Shelby County back in
2:21
Speaker 3: twenty thirteen, the majority is very careful to say that
2:25
Speaker 3: they are not overturning the Voting Rights Act, they are
2:28
Speaker 3: not declaring the whole Voting Rights Act unconstitutional. It's still there,
2:32
Speaker 3: but they have functionally made it unenforceable. And what that
2:35
Speaker 3: has done now in May of an election year, is
2:39
Speaker 3: turbocharged the already aggressive redistricting battles that we've been seeing
2:44
Speaker 3: play out over the last several months, leading states across
2:48
Speaker 3: the country but primarily in the South, to aggressively try
2:52
Speaker 3: to redraw their congressional maps before this year's midterm elections
2:56
Speaker 3: to eliminate majority minority districts functionally erase meaningful representation for
3:03
Speaker 3: primarily black and Latino voters across the American South, including
3:07
Speaker 3: in states that have already held primary elections or that
3:10
Speaker 3: are in the middle of primary elections right now. So
3:12
Speaker 3: it's really a sort of craven and opportunistic attempt to
3:19
Speaker 3: redraw these maps for partisan gain at the expense of
3:23
Speaker 3: minority voters.
3:24
Speaker 2: So where does the map stand right now?
3:27
Speaker 3: So, the only state that has entirely enacted a new
3:29
Speaker 3: maps since the Calae decision is Florida. They were ready,
3:33
Speaker 3: they passed their map within hours of that decision coming down,
3:36
Speaker 3: and since then, a number of other states either governors
3:39
Speaker 3: have called special sessions of their legislatures to draw new
3:42
Speaker 3: maps or they've begun the process of redoing their maps,
3:46
Speaker 3: and that is complicated in a place like Alabama that
3:50
Speaker 3: already has had a primary, In a place like Louisiana,
3:53
Speaker 3: where their primary is in just a little over a
3:56
Speaker 3: week and voting has already.
3:58
Speaker 4: Begun, ballots have already been asked.
4:00
Speaker 3: But it's you know, Louisiana, Mississippi, Alabama, South Carolina have
4:06
Speaker 3: all you know, announced plans to target the majority minority
4:10
Speaker 3: districts that were created as a result of successful litigation
4:13
Speaker 3: under the Voting Rights Act in their states, and specifically
4:16
Speaker 3: targeting primarily black lawmakers elected in majority black districts.
4:20
Speaker 2: When they eliminate these majority minority black districts, is it
4:25
Speaker 2: a guarantee? Is it a lock that a Democrat can't
4:29
Speaker 2: get elected there? Are they able to gerrymander it in
4:32
Speaker 2: such a way?
4:34
Speaker 3: Not necessarily. It does depend a little bit on the
4:37
Speaker 3: state and on the state's particular geography. But the redistricting
4:40
Speaker 3: process has become so technical and so driven by you know,
4:45
Speaker 3: computer programs and map drawers have gotten increasingly sophisticated over
4:50
Speaker 3: recent years, and so it is very plausible to be
4:54
Speaker 3: able to draw a map where it would be nearly
4:56
Speaker 3: impossible for you know, a Democrat to get elected because
4:59
Speaker 3: of just the way that the lines have been drawn,
5:01
Speaker 3: especially now that the Supreme Court has basically blessed this
5:06
Speaker 3: practice and has said that you can target voters of
5:11
Speaker 3: colors so long as you claim that you're doing it
5:13
Speaker 3: for partisan reasons. So as long as the state says, well,
5:16
Speaker 3: we're not discriminating against them because they're black or Latino,
5:19
Speaker 3: we're discriminating against them because they're Democrats, the Supreme Court
5:22
Speaker 3: majority has said that's okay.
5:24
Speaker 2: Louisiana's Governor Jeff Landry, in delaying his states House primary
5:30
Speaker 2: elections in order to redraw the state's map, quoted that
5:35
Speaker 2: famous quote from the Chief Justice John Roberts. The best
5:40
Speaker 2: way to stop discrimination on the basis of race is
5:43
Speaker 2: to stop discriminating on the basis of race. And there
5:47
Speaker 2: have been lawsuits filed to stop the redistricting, But what
5:51
Speaker 2: are they based on now that they can no longer
5:54
Speaker 2: base it on discrimination on the basis of race.
5:58
Speaker 4: There's a lot to unpack there.
6:00
Speaker 2: Yeah, I apologize for the double question, or maybe the
6:03
Speaker 2: triple question, but.
6:04
Speaker 3: That vote from Chief Justice Roberts is pretty disingenuous because
6:08
Speaker 3: what the Court has really functionally done is said that
6:11
Speaker 3: even if you can prove that discrimination has happened, you
6:14
Speaker 3: cannot consider race when remedying discrimination, and I'm not sure
6:18
Speaker 3: how you can fashion a legal remedy to address race
6:21
Speaker 3: discrimination while being blind to race. It just doesn't make sense.
6:26
Speaker 3: So setting that aside, you know, the governor of Louisiana,
6:30
Speaker 3: in my view, does not have the authority to just
6:33
Speaker 3: unilaterally postpone the primary because of a change in law.
6:37
Speaker 3: There is an emergency statute that does give the governor
6:41
Speaker 3: and the Secretary of State some limited ability to change
6:45
Speaker 3: election dates, but that is reserved for actual unforeseen catastrophes,
6:50
Speaker 3: which in Louisiana usually means a hurricane. And so you
6:54
Speaker 3: know when it is functionally impossible to hold an election
6:57
Speaker 3: because you know, a natural disaster has occurred. And what
7:01
Speaker 3: the governor is doing here is i think, really cynically
7:04
Speaker 3: and opportunistically abusing that authority to cancel an election already
7:09
Speaker 3: in progress because he wants to redraw maps to get
7:14
Speaker 3: his party more congressional seats. And so the claims that
7:17
Speaker 3: are being brought by litigants in Louisiana are not about
7:20
Speaker 3: the maps themselves, or not about you know, discriminating against
7:23
Speaker 3: voters in this particular instance. You know, these are due
7:26
Speaker 3: process claims, these are ultra viri's claims. They're arguing that
7:29
Speaker 3: the governor has exceeded his legal authority by you know,
7:32
Speaker 3: calling it an emergency and rescheduling the election when there
7:36
Speaker 3: is no actual emergency. That's not what the statute and
7:39
Speaker 3: the emergency power were designed for. And he's functionally canceling
7:44
Speaker 3: the votes that have already been cast by you know,
7:47
Speaker 3: Louisiana's who have voted earlier, voted by mail, because this
7:50
Speaker 3: election period has been ongoing now for a couple of weeks.
7:53
Speaker 3: So the legal actions that have been brought are on
7:57
Speaker 3: behalf of individual voters who've already cast ballots. They want
8:00
Speaker 3: those ballots counted because you know, there are changes in law,
8:04
Speaker 3: there are changes in circumstances all the time. But what
8:06
Speaker 3: we don't do in a democracy is cancel an election midstream.
8:09
Speaker 3: Can't change the rules halfway through the election just because
8:12
Speaker 3: you want a different outcome.
8:14
Speaker 2: The Supreme Court has established the percell principle, the idea
8:19
Speaker 2: that courts shouldn't change voting or election rules too close
8:23
Speaker 2: to an election in order to avoid confusion. At this point,
8:28
Speaker 2: I'm not sure which principles or rules the court will
8:31
Speaker 2: still follow as precedent, but does that apply here.
8:36
Speaker 3: It's interesting that Purcell does not appear anywhere in the
8:39
Speaker 3: Supreme Court's decision in Calais. And the Court has been
8:43
Speaker 3: very aggressive in citing Percell to prevent district courts from
8:47
Speaker 3: issuing rulings about elections that might be disruptive to the
8:51
Speaker 3: election administration process or cause voter confusion. And I can't
8:55
Speaker 3: think of a more disruptive decision than you know, gutting
9:00
Speaker 3: the Voting Rights Act in the middle of an interim
9:02
Speaker 3: year while primaries are ongoing, and you know, the Court
9:05
Speaker 3: could have done all sorts of things to delay, you know,
9:07
Speaker 3: this decision taking effect, to make clear to the states
9:10
Speaker 3: that you know, this election cycle shouldn't be affected by it.
9:13
Speaker 4: They didn't do that.
9:14
Speaker 3: And so, you know, the Court's use of Purcel, I
9:17
Speaker 3: think has been quite cynical and pretty pretty opportunistic. They
9:22
Speaker 3: use it when they want to block a lower court ruling,
9:24
Speaker 3: but they don't themselves seem very bound by it. And
9:27
Speaker 3: so the guidance that they've given to the district court's about,
9:30
Speaker 3: you know, being careful about not to disrupt elections with
9:33
Speaker 3: judicial decisions about how courts shouldn't change things midstream. It
9:36
Speaker 3: does not seem to be guidance that they themselves have
9:38
Speaker 3: followed here.
9:39
Speaker 2: Going through some of the states. Tennessee, well, Trump said
9:43
Speaker 2: on truth Social that the Tennessee Republican governor would work
9:47
Speaker 2: hard to redraw the state's map, although Tennessee code prohibits
9:52
Speaker 2: congressional mid decade redistricting. I mean, will anything happen in
9:57
Speaker 2: Tennessee or Alabama where the governor had said that, you know,
10:01
Speaker 2: the state's map couldn't be altered, and now she's apparently
10:06
Speaker 2: announcing plans to call a special session. Do you think
10:08
Speaker 2: that anything would happen in either of those two states.
10:11
Speaker 3: It's certainly possible. I mean, in Tennessee, they would have
10:14
Speaker 3: to change the code, which you know, the legislature could
10:17
Speaker 3: do that, but you know we've seen already. I mean,
10:20
Speaker 3: in Florida, the Florida constitution prohibits partisan gerrymandering, and Florida
10:25
Speaker 3: has passed a map redrawing the districts for partisan advantage.
10:29
Speaker 3: So you know, many of these governors and legislatures don't
10:32
Speaker 3: seem to be too concerned about what limits the law
10:34
Speaker 3: puts on them. At this point, maybe in part because
10:37
Speaker 3: of the pressure that they're getting from the White House.
10:39
Speaker 3: But I think it's important to remember that all of
10:41
Speaker 3: these states were already pretty aggressively gerrymandered after the twenty
10:45
Speaker 3: twenty census. Tennessee has one Democratic district in Memphis, which
10:50
Speaker 3: is a majority of black district because they split Nashville,
10:54
Speaker 3: they cracked it into four separate districts to eliminate a
10:56
Speaker 3: Democratic seat in Nashville.
10:58
Speaker 4: Alabama had a.
10:59
Speaker 3: Case go up to the Supreme Court just a couple
11:01
Speaker 3: of years ago where the district Court found that Alabama
11:05
Speaker 3: had intentionally discriminated on the basis of race in drawing
11:08
Speaker 3: its congressional map, and they were forced because of a
11:11
Speaker 3: violation of the Voting Rights Act, to draw a second
11:13
Speaker 3: majority of black district. And so it's hard to say whether
11:16
Speaker 3: the Court is turning a blind eye or was intentionally
11:19
Speaker 3: just like unleashing this wave of extreme jerrymandering. But it
11:25
Speaker 3: seems to me at least that these governors and these
11:26
Speaker 3: state legislatures are not holding anything back in their quest
11:31
Speaker 3: to eliminate minority representation in their states.
11:34
Speaker 2: Let's talk about twenty twenty eight, because some of the
11:37
Speaker 2: states that are saying no, we can't do it now,
11:40
Speaker 2: like Georgia. The Georgia Governor Brian Kempson. It's clear that
11:44
Speaker 2: KELA requires Georgia to adopt new electoral maps before the
11:48
Speaker 2: twenty twenty eight election cycle. Let's talk about Republican states first.
11:52
Speaker 2: Which Republican states do you think still have maps they're
11:55
Speaker 2: able to jerrymander to get rid of Democrats.
12:00
Speaker 4: There are plenty.
12:00
Speaker 3: I think it's states all across the South. But looking
12:03
Speaker 3: ahead to twenty twenty eight, I don't think it's just
12:05
Speaker 3: Republican states that we have to think about. I think
12:08
Speaker 3: the same way that we saw Texas and California and
12:11
Speaker 3: Virginia and Ohio all going kind of tit for tat
12:14
Speaker 3: in the last year, the race to the bottom is
12:16
Speaker 3: only going to accelerate because if Florida and Georgia, at
12:21
Speaker 3: Alabama and Mississippi and Louisiana and all of these states
12:23
Speaker 3: in the Deep South are successful in redrawing their maps
12:27
Speaker 3: to eliminate democrats, I expect places like you know, Maryland
12:32
Speaker 3: and Illinois and Colorado to retaliate, and nobody wins when
12:38
Speaker 3: the parties are engaged in this race to the bottom
12:43
Speaker 3: of just trying to manipulate the electorate for their own
12:48
Speaker 3: part is in gain. The loser here is not going
12:51
Speaker 3: to be the Republicans or the Democrats. It's going to
12:53
Speaker 3: be the American people who are going to be denied
12:56
Speaker 3: a meaningful opportunity to select representatives who actually represent them.
13:01
Speaker 3: There's a kind of common saying that.
13:02
Speaker 4: We use a lot.
13:04
Speaker 3: Voters should choose their politicians, not the other way around.
13:07
Speaker 3: And what this decision from the Supreme Court has done
13:11
Speaker 3: is functionally given state legislatures the ability to decide for
13:16
Speaker 3: themselves what party is going to represent their states in Congress,
13:21
Speaker 3: and taking the power to make that choice away from
13:24
Speaker 3: the voters just by manipulating the district lines on the map.
13:27
Speaker 2: Coming up next, will independent commissions be a barrier for
13:31
Speaker 2: Democratic states trying to redistrict This is bloomberg. Republican lawmakers
13:39
Speaker 2: in several Southern states our meeting this week to consider
13:43
Speaker 2: plans that could upend their congressional primaries and redraw US
13:48
Speaker 2: House districts ahead of the November elections, as the GOP
13:53
Speaker 2: moves to quickly capitalize on the Supreme Court ruling last
13:57
Speaker 2: week that eviscerated the Voting Rights Act, a special legislative
14:01
Speaker 2: session responding to the court ruling began today in Alabama
14:05
Speaker 2: and is set to start Tuesday in Tennessee. Louisiana. Lawmakers
14:10
Speaker 2: who are already in session also are looking at how
14:13
Speaker 2: to redraw their congressional districts. Civil rights activists have countered
14:18
Speaker 2: with rallies, protests, and lawsuits challenging the new redistricting efforts.
14:23
Speaker 2: I've been talking to Jonathan Diaz, director of voting Advocacy
14:28
Speaker 2: and Partnerships at the Campaign Legal Center. So some of
14:32
Speaker 2: the Democratic states have an additional problem in that they
14:36
Speaker 2: passed laws allowing independent commissions to draw the maps. So,
14:41
Speaker 2: for example, Colorado has already started trying to undo its
14:45
Speaker 2: independent commission before twenty twenty eight, and New York Governor
14:48
Speaker 2: Kathy Hochel called on lawmakers to begin the process of
14:52
Speaker 2: a constitutional amendment. So do you think those independent commissions
14:55
Speaker 2: will be a real hurdle for Democrats who want a
14:58
Speaker 2: redistrict or they can.
15:00
Speaker 4: It does make things a little more complicated.
15:02
Speaker 3: Many of those independent commissions are written into the state constitutions,
15:07
Speaker 3: and so it's a little more difficult to amend a
15:09
Speaker 3: state constitution than to just pass a new bill, which
15:11
Speaker 3: is why I think you're seeing the Democratic response in
15:15
Speaker 3: a lot of the states, in Colorado and New York
15:17
Speaker 3: aiming for twenty twenty eight, because it does take a
15:20
Speaker 3: little bit longer. But you know, Virginia just amended its
15:22
Speaker 3: constitution to do its mid decade redistricting this year. California
15:26
Speaker 3: has a redistricting commission, and the ballot measure that they
15:29
Speaker 3: put on the ballot suspends it for as long as
15:31
Speaker 3: they are in this fight with Texas, and so yeah,
15:34
Speaker 3: I think it is a little bit more complicated for
15:36
Speaker 3: the democratic controlled states that want to respond to what's happening.
15:41
Speaker 3: And that's because you know, in at least some of
15:44
Speaker 3: those places, either democratic governments, but more often voters themselves
15:49
Speaker 3: have amended their constitutions to take the power to draw
15:53
Speaker 3: maps away from legislators. When Democrats controlled Congress, they attempted
15:59
Speaker 3: to pass and passed through the House a bill that
16:02
Speaker 3: would have in part, banned partisan jerrymattering and mandated independent
16:07
Speaker 3: citizen commissions to draw congressional maps for every state. And
16:11
Speaker 3: that was uniformly opposed to down party lines by Republicans.
16:14
Speaker 3: And so there has been some at least movement on
16:17
Speaker 3: the Democratic side of the Isle to address gerrymandering and
16:21
Speaker 3: to make redistricting more fair. But it has been a
16:25
Speaker 3: pretty one sided fight, and I think that, you know, unfortunately,
16:30
Speaker 3: because the Republicans are going at the districting process so aggressively,
16:35
Speaker 3: the Democrats are now responding in kind, and there is,
16:39
Speaker 3: it seems to me right now at this moment, very
16:41
Speaker 3: little appetite for districting reform on either side of the isle.
16:45
Speaker 3: I'm hopeful that I think that both sides will see
16:48
Speaker 3: just how terrible this is once they both go scorched earth,
16:51
Speaker 3: and might, you know, out of self preservation, find some
16:55
Speaker 3: middle ground to address this, because you know, there's more
16:59
Speaker 3: Democrats into Exis than in any other state other than California,
17:03
Speaker 3: and there are more Republicans in California than in any
17:06
Speaker 3: other state other than Texas, because of just how many
17:08
Speaker 3: people are in both of those states. And Republicans in
17:12
Speaker 3: California deserve meaningful representation in Congress just as much as
17:15
Speaker 3: Democrats in Texas do. But once we give the power
17:19
Speaker 3: to draw these lines to self interested legislators who have
17:23
Speaker 3: their own part as any goals and ambitions and objectives, again,
17:27
Speaker 3: the people who really suffer.
17:28
Speaker 4: Are the voters.
17:29
Speaker 2: A progressive group Fair Fight Action identified nineteen possible seats
17:35
Speaker 2: that Republicans could target if Section two was not in place,
17:39
Speaker 2: and they released another report laying out as many as
17:42
Speaker 2: twenty two seats where Democrats could respond in kind. Could
17:47
Speaker 2: this end up with Republicans being in a worse position
17:51
Speaker 2: than before Trump started this redistricting war.
17:55
Speaker 4: It's possible.
17:57
Speaker 3: And I think that the range that the foe at
18:00
Speaker 3: Fair Fight identified was a little uncertain because we just
18:03
Speaker 3: weren't sure exactly how KLA was going to come down
18:07
Speaker 3: and how aggressive Republican states would be in redrawing their
18:11
Speaker 3: maps once it did. And I think the other open
18:14
Speaker 3: question was what would Democrats do in response? And so,
18:17
Speaker 3: you know, it's hard to read the tea leaves to
18:18
Speaker 3: say who in the part is an horse race who's
18:21
Speaker 3: going to come out on top on this particular round
18:23
Speaker 3: of redistricting. But you know, I think what has been
18:26
Speaker 3: made very clear in the last couple of days since
18:28
Speaker 3: the Cali decision is that, you know, both parties are
18:32
Speaker 3: going all out to redraw the maps. I'm not sure,
18:36
Speaker 3: you know, just because of demographics and geography. You know,
18:39
Speaker 3: it's clear that the Republican controlled states are targeting majority
18:43
Speaker 3: black and Latino districts. I haven't taken a close look
18:46
Speaker 3: at whether we would see the same kind of reduction
18:48
Speaker 3: in majority minority districts in blue states if they responded
18:50
Speaker 3: in kind, But yeah, I think it's it's clear based
18:53
Speaker 3: on the actions of governors and legislatures just over the
18:56
Speaker 3: last week, that we're going to see a massive reduction
19:00
Speaker 3: in majority minority districts across the South as a result
19:04
Speaker 3: of this wave of districting spurred by KELA.
19:07
Speaker 2: So we always focus on Congress for obvious reasons, but
19:13
Speaker 2: this decision also affects state legislatures, county commissions, city councils,
19:19
Speaker 2: and even local school boards.
19:21
Speaker 4: Yeah, that's exactly right.
19:23
Speaker 3: I think most people don't realize just how transformative the
19:27
Speaker 3: Voting Rights Act was to American democracy, because it's not
19:31
Speaker 3: just Congress. You're right, it's state legislatures, it's local governments,
19:35
Speaker 3: it's county commissions, it's school boards, it's utility districts, it's
19:40
Speaker 3: city councils. Almost the more profound effect of the Voting
19:44
Speaker 3: Rights Act was, I think, to transform local governments, hitting
19:47
Speaker 3: people at home, right, the parts of government that touch
19:50
Speaker 3: people's lives most directly.
19:52
Speaker 4: And most closely.
19:53
Speaker 3: And you know, the congressional seats get a lot of
19:56
Speaker 3: attention and that's where a lot of litigation happens. But
19:59
Speaker 3: SECON two as a backstop to make sure that states
20:03
Speaker 3: and localities didn't go too far in diluting minority votes
20:07
Speaker 3: was a really powerful tool that you know, we can't
20:10
Speaker 3: enforce the way that we used to because of this decision.
20:13
Speaker 3: And it's really you know, for as much as we
20:16
Speaker 3: are going to see minority representation decline in Congress, I
20:21
Speaker 3: think that the effect in state and local governments is
20:24
Speaker 3: going to be even more dramatic.
20:26
Speaker 2: And changing the congressional maps and the primary dates months
20:31
Speaker 2: before the elections in November creates so many other problems
20:37
Speaker 2: as well for candidates and confusion for voters, and it's
20:44
Speaker 2: going to be costly for the.
20:45
Speaker 3: States and for election officials themselves. The people who run elections.
20:49
Speaker 3: Administrators are you know, in a state like Louisiana where
20:54
Speaker 3: you know, the finish line was in sight, they were
20:56
Speaker 3: right there, they were so close to being done with
20:58
Speaker 3: this primary, and now the governor's going to have to
21:02
Speaker 3: start from scratch. Candidates are going to have to refile
21:05
Speaker 3: their candidacy petitions in new districts, they might have to
21:07
Speaker 3: collect signatures again. All the money that they've spent on
21:10
Speaker 3: these campaigns, on ads, on volunteers, on staff, on you know,
21:15
Speaker 3: T shirts, mailers, you name it, they're going to have
21:17
Speaker 3: to do all over again. It's going to be incredibly
21:20
Speaker 3: confusing for voters who have you know, already participated in
21:23
Speaker 3: a primary, or who you know, decided not to and
21:26
Speaker 3: now have to figure it all out again. People may
21:29
Speaker 3: have taken time off of work to go to the polls.
21:32
Speaker 3: It's it's going to be incredibly disruptive and confusing for voters.
21:37
Speaker 3: And any any disruption this major, especially in the kind
21:44
Speaker 3: of election climate that we've been in for the last
21:46
Speaker 3: several years, it does two things. It reduces public confidence
21:51
Speaker 3: in our electoral system. If people feel like their vote
21:55
Speaker 3: doesn't matter, or that the system is rigged to put
21:59
Speaker 3: out a particular outcome regardless of what they do, that's
22:03
Speaker 3: really damaging to democracy in the long term. And secondly,
22:07
Speaker 3: you know, we have seen since twenty twenty a willingness
22:11
Speaker 3: on the part of candidates and elected officials to subvert
22:16
Speaker 3: or reject the results of elections because they don't like
22:20
Speaker 3: the outcome. Whether they do try and do that through
22:22
Speaker 3: litigation or through you know, other kind of legal challenge,
22:25
Speaker 3: or just you know, declaring the election stolen and hoping
22:29
Speaker 3: that the people follow them to you know.
22:31
Speaker 4: Do whatever.
22:32
Speaker 3: We all remember, how you know, the aftermath of the
22:34
Speaker 3: twenty twenty election, and I worry that this kind of
22:38
Speaker 3: massive disruption is going to lead to similar calls by
22:43
Speaker 3: the president people in his orbit, you know, like minded
22:47
Speaker 3: governors and candidates to reject the outcomes of elections if
22:51
Speaker 3: they don't align with their partners of preference.
22:54
Speaker 2: And Congress could pass a law to get around this
22:57
Speaker 2: Supreme Court decision.
22:59
Speaker 3: Right, Yes, Congress could tomorrow pass a law banning parties
23:05
Speaker 3: in jerrymandering, saying that part isn't gain parts in advantage
23:11
Speaker 3: is not a legitimate criterion for states to use in
23:13
Speaker 3: drawing congressional maps.
23:15
Speaker 4: They haven't done that.
23:16
Speaker 3: I do worry what this Court would do if Congress
23:19
Speaker 3: tried to reenact the Voting Rights Act to change the
23:23
Speaker 3: language to use their fourteenth and Fifteenth Amendment enforcement power
23:27
Speaker 3: to try and address discrimination in the districting and voting process.
23:31
Speaker 3: In this decision and other decisions about the Voting Rights
23:34
Speaker 3: Act in recent years, the Court has been very willing
23:37
Speaker 3: to substitute its own judgment for Congresses, even though the
23:41
Speaker 3: Constitution gives Congress the power to regulate elections and to
23:45
Speaker 3: enforce the Reconstruction amendments, not before, but certainly when it
23:48
Speaker 3: comes to the jerrymandering battles and the part is in
23:52
Speaker 3: jerymenoring in particular, that's something that Congress could easily address
23:55
Speaker 3: if they were willing to well see.
23:56
Speaker 2: How the legal battles play out in the southern states
24:00
Speaker 2: that are trying to redistrict the late Thanks so much
24:03
Speaker 2: for joining me today. That's Jonathan DIA's director of voting
24:07
Speaker 2: Advocacy and Partnerships at the Campaign Legal Center. The Supreme
24:11
Speaker 2: Court has temporarily restored access to the most widely used
24:16
Speaker 2: abortion pill by mail, blocking a ruling that had threatened
24:20
Speaker 2: to upend one of the main ways abortions are provided
24:23
Speaker 2: across the country. The administrative stay, signed by Justice Samuel Alito,
24:29
Speaker 2: temporarily allows women seeking abortions to obtain the pill at
24:33
Speaker 2: pharmacies or through the mail without an in person visit
24:36
Speaker 2: to a doctor, but it will only stay in effect
24:40
Speaker 2: for a week. The majority of abortions in the US
24:43
Speaker 2: are obtained through medications, usually a combination of mifepristone and
24:48
Speaker 2: a second drug, miss a prostel. Joining me is Bloomberg
24:51
Speaker 2: Supreme Court reporter Greg's store, Greg. This stay is not
24:56
Speaker 2: going to last very long.
24:58
Speaker 5: Yeah, It's designed to last for about a And the
25:01
Speaker 5: key backdrop is that on Friday at last week, a
25:04
Speaker 5: federal appeals court at the very conservative Fifth Circuit, ruled
25:07
Speaker 5: that mefi pristone, the abortion drug, could no longer be mailed.
25:11
Speaker 5: We can talk about the legal reasoning, but that was
25:13
Speaker 5: the upshot of it. And so unless the Supreme Court intervened,
25:17
Speaker 5: it would mean that, you know, going forward, that would
25:20
Speaker 5: be the case that this right that patients have had
25:24
Speaker 5: for a number of years to get a prescription and
25:26
Speaker 5: get mefi pristone mailed to them would no longer be
25:29
Speaker 5: in force. And so what this order is is basically
25:32
Speaker 5: just a holding pattern. MiFi pristone is still fully available
25:36
Speaker 5: until we decide what to do with that Fifth Circuit decision.
25:39
Speaker 2: And would the Fifth Circuit decision only applied to the
25:42
Speaker 2: states it covers.
25:44
Speaker 5: By its terms, it seemed to operate nationwide, and that
25:49
Speaker 5: was one of the issues that the drugs manufacturers were
25:52
Speaker 5: pointing to at the Supreme Court and still are pointing
25:55
Speaker 5: to as to why the Supreme Court should stay that
25:58
Speaker 5: ruling was because they say the Fifth Circuit went beyond
26:02
Speaker 5: its territorial area and applied it nationwide.
26:06
Speaker 2: Memphi pristone has been at the Supreme Court before. Why
26:08
Speaker 2: don't you tell us what happened before?
26:10
Speaker 5: It has? Yeah, and the underlying issues were sort of similar.
26:14
Speaker 5: It is a claim that the Food and Drug Administration
26:17
Speaker 5: is giving short shrift to safety concerns. And what happened
26:21
Speaker 5: a few years ago, starting in twenty twenty three was
26:23
Speaker 5: at a federal district judge in Texas agreed with that argument
26:28
Speaker 5: and ordered MiFi pristone removed from the market. That made
26:32
Speaker 5: it up to the Supreme Court, which first they temporarily said,
26:36
Speaker 5: much like they did here, meph pristone can stay on
26:39
Speaker 5: the market and can continue to be mailed. And then
26:42
Speaker 5: ultimately they issued a ruling after fully considering the case,
26:46
Speaker 5: where they said that the folks challenging the rules for
26:49
Speaker 5: the drug did not have legal standing. That was a
26:52
Speaker 5: case involving individuals and organizations that opposed abortion, and the
26:57
Speaker 5: Supreme Court unanimously said they don't have standing to challenge
27:01
Speaker 5: the FDA's rules.
27:03
Speaker 2: So they didn't then rule on whether the FDA's authority
27:09
Speaker 2: was being impinged on by the states.
27:12
Speaker 5: That is exactly right. The Supreme Court has not ruled
27:15
Speaker 5: on the merits of the challenge and whether the FDA
27:20
Speaker 5: did give short shrift to safety concern. You know, the
27:24
Speaker 5: underlying issues are ones that are kind of pretty familiar
27:27
Speaker 5: to people who follow litigation at the Supreme Court. It's
27:30
Speaker 5: questions under the Administrative Procedure Act, which is basically saying
27:34
Speaker 5: that when agencies do something, they have to do it
27:37
Speaker 5: in certain ways. And they're an awful lot of lawsuits
27:40
Speaker 5: saying you need to block what the agency did because
27:42
Speaker 5: they didn't do those certain things in certain ways. And
27:45
Speaker 5: that's really what the underlying issues are about here.
27:48
Speaker 2: Greg, the FDA under Robert F. Kennedy Junior. I mean,
27:53
Speaker 2: is it changing or trying to change its viewpoint on
27:57
Speaker 2: mif of pristone.
27:59
Speaker 5: Yeah, of a tricky situation that the Trump administration and
28:04
Speaker 5: Secretary Kennedy find themselves in. They have obviously anti abortion
28:09
Speaker 5: groups and advocates really would like to restrict this pill
28:12
Speaker 5: because it has basically allowed women in states where medical
28:18
Speaker 5: abortions are banned to continue to receive pills that will
28:22
Speaker 5: let them have an abortion, and the administration has said
28:26
Speaker 5: there are some safety concerns, but we want to study those,
28:29
Speaker 5: and that study has been taking quite a long time.
28:33
Speaker 5: And Bloomberg News has some reporting that they're basically trying
28:36
Speaker 5: to slow walk the issue until after the mid terms.
28:39
Speaker 5: So in this case, the administration is kind of trying
28:42
Speaker 5: to walk a fine line. At the Fifth Circuit, they
28:46
Speaker 5: argued that the appeals court should not block mail methi pristone,
28:52
Speaker 5: and their argument is basically that Louisiana does not have
28:55
Speaker 5: standing to challenge it. And you know, when you have
28:58
Speaker 5: these emergency issues, you do this. It's called balancing the
29:01
Speaker 5: equities of you know, what size is going to be
29:03
Speaker 5: hurt more if the ruling goes against them. And essentially
29:05
Speaker 5: they're saying that the federal government will be hurt more
29:08
Speaker 5: if it's not allowed to continue to enforce the rules
29:12
Speaker 5: as they are now.
29:13
Speaker 2: And how did the Fifth Circuit find that Louisiana had standing?
29:19
Speaker 5: So a couple things. So Louisiana is one of those
29:21
Speaker 5: states that bans abortion, and the Fifth Circuit said that
29:25
Speaker 5: Louisiana has a sovereign interest in that policy, and the
29:29
Speaker 5: availability of Mifa pristone ship from out of state was
29:31
Speaker 5: undermining that. So that was one thing. And the second
29:34
Speaker 5: thing was they said, Louisiana is pointing to instances where
29:37
Speaker 5: it says MiFi pristone had side effects and people have
29:41
Speaker 5: had to be treated for that, and the state says,
29:44
Speaker 5: we're paying under the Medicaid program, we're paying for some
29:47
Speaker 5: of that health care. And so those are the arms
29:50
Speaker 5: that Louisiana says it's suffering that would give it standing
29:53
Speaker 5: to sue here. And if the Supreme Court ends up
29:56
Speaker 5: taking up this case or even just on the emergency basis,
29:59
Speaker 5: it's going to have to grapple with those contentions.
30:03
Speaker 2: And didn't the Supreme Court recently rule against nationwide injunctions
30:08
Speaker 2: like this?
30:09
Speaker 5: They did, and that, you know, that's one of these
30:11
Speaker 5: issues that kind of gets into the weeds of exactly
30:14
Speaker 5: what that ruling did. But yes, the Supreme Court did
30:19
Speaker 5: try to crack down on nationwide injunctions through one of
30:23
Speaker 5: the cases involving birthright citizenship and the Trump administrations, the
30:27
Speaker 5: president's effort to limit birthright citizenship, But that ruling also
30:33
Speaker 5: left some other avenues for litigans to get effectively a
30:38
Speaker 5: nationwide injunction. And so you know, a sub question in
30:41
Speaker 5: here might be whether this is one of those avenues.
30:46
Speaker 2: As you know, well, the Supreme Court doesn't have to
30:49
Speaker 2: take this case, but considering the ramifications here and the
30:54
Speaker 2: fact that it just takes four justices to grant cert
30:58
Speaker 2: do you think they will take the case?
31:01
Speaker 5: So first you have the question of whether it will
31:03
Speaker 5: go beyond this administrative stay and issue a longer term stay,
31:07
Speaker 5: and that would apply until the litigation is concluded. So
31:11
Speaker 5: that is one question, and they need to answer that
31:13
Speaker 5: yes or no. So I expect that they will do that,
31:15
Speaker 5: if not next week, then soon thereafter. And one might
31:19
Speaker 5: say one thing about this administrative stay. It's not supposed
31:22
Speaker 5: to signal what the Court's going to do. But this
31:25
Speaker 5: is a request that went to a very conservative justice,
31:28
Speaker 5: sam Alito, and it took him a couple days to
31:31
Speaker 5: decide what to do with it. And it's at least
31:32
Speaker 5: possible before he entered this temporary stay that he consulted
31:36
Speaker 5: with some of his colleagues, and there's a bit of
31:39
Speaker 5: a sense of what's going to happen here that he
31:42
Speaker 5: kind of sees the handwriting on the wall and that's
31:44
Speaker 5: why he issued this. That's just my theory, my speculation,
31:47
Speaker 5: but it's possible. And then ultimately you would have the
31:50
Speaker 5: question whether the Court would agree to hear and appeal
31:54
Speaker 5: in this case. And it seems very very likely that
31:57
Speaker 5: if we got to that point where somebody was asking
31:59
Speaker 5: them to, you know, grant serve and review the lower
32:02
Speaker 5: court decision, that they would do that. At some point.
32:04
Speaker 5: Whenever the federal government is told you can't do something
32:07
Speaker 5: you've been trying to do, the Supreme Court will almost
32:10
Speaker 5: always jump in.
32:11
Speaker 2: And how many justices have to vote for stay first stay?
32:14
Speaker 5: It's five?
32:16
Speaker 1: Now.
32:16
Speaker 2: I understand that some abortion providers are already getting ready
32:21
Speaker 2: to send out a different kind of abortion pill.
32:24
Speaker 5: Yes, so, MiFi pristone is very widely used. It is
32:29
Speaker 5: usually used in conjunction with a second abortion drug, and
32:33
Speaker 5: that second drug can also be used just by itself.
32:37
Speaker 5: There are some questions about whether it's as good of
32:40
Speaker 5: a choice for patients, and so there are alternatives. This
32:45
Speaker 5: ruling only applies to the one drug, MiFi pristone, so
32:49
Speaker 5: there might be other ways that abortion pills can still
32:52
Speaker 5: be mailed out.
32:53
Speaker 2: I mean, the Supreme Court could get around this another
32:56
Speaker 2: time just by going on a standing ruling saying that
33:01
Speaker 2: Louisiana doesn't have standing to sue.
33:04
Speaker 5: That is certainly possible, that is an issue in the case,
33:08
Speaker 5: and there are certainly arguments against Louisiana's assertion of standing,
33:14
Speaker 5: So they could do that. They could also think to themselves, hey,
33:18
Speaker 5: this keeps coming back to us, and ultimately we may
33:21
Speaker 5: just need to decide the underlying issue to put this
33:24
Speaker 5: to bed.
33:25
Speaker 2: Since this decision was from the Fifth Circuit, it went
33:29
Speaker 2: to Justice Samuel Alito, who handles emergency requests from the
33:33
Speaker 2: Fifth Circuit. By the way, Alito was the justice who
33:37
Speaker 2: wrote the Dobbs decision which took away the constitutional right
33:42
Speaker 2: to abortion. Did it seem like he took a lot
33:46
Speaker 2: of time before issuing this day.
33:49
Speaker 5: If this had come up in a circuit where Soda
33:51
Speaker 5: Mayora Kagan was the circuit justice, I would have expected
33:54
Speaker 5: an administrative stay like this, you know, twenty minutes after
33:58
Speaker 5: the request was filed. But the fact that it sat around,
34:01
Speaker 5: you know, and there was all this uncertainty for forty
34:04
Speaker 5: eight hours or so definitely had me wondering, well.
34:06
Speaker 2: This expires on Monday, so we'll see if anything happens.
34:10
Speaker 2: In the meantime. In the meantime, thanks so much, Greg.
34:14
Speaker 2: That's Bloomberg Supreme Court Reporter Greg Store And that's it
34:18
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
34:21
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34:23
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