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Holdout Clancy Juror & SCOTUS Blocks Missouri GOP Maps a Third Time · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:09
Speaker 2: We're anticipating the 29th.
0:10
Speaker 3: I'm hoping that Judge Sullivan allows the termination of the case.
0:15
Speaker 1: I mean, it's just a case that needs to be done.
0:19
Speaker 1: It needs to be done.
0:21
Speaker 3: Lindsay Clancy's defense attorney, Kevin Reddington, is asking the trial
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Speaker 3: judge to dismiss the murder case against her. saying there
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Speaker 3: wasn't enough evidence to prove her criminally responsible for murdering
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Speaker 3: her three children and that trying her again would amount
0:37
Speaker 3: to double jeopardy. Three weeks ago, the trial judge declared
0:41
Speaker 3: a mistrial after the jury was unable to reach the
0:45
Speaker 3: unanimous verdict after seven days of deliberations. The jury was
0:49
Speaker 3: hung 11 to 1 in favor of acquittal, and Reddington
0:53
Speaker 3: took an unusual posture for an attorney after the mistrial,
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Speaker 3: attacking the lone holdout juror repeatedly in media interviews.
1:03
Speaker 1: They know that they were robbed by one man for
1:07
Speaker 1: whatever his agenda was, who stole seven weeks.
1:13
Speaker 2: Of the life of these other jurors.
1:15
Speaker 3: Reddington is now asking the judge to conduct an investigation
1:20
Speaker 3: into the holdout juror. My guest is former federal prosecutor
1:24
Speaker 3: Robert Mintz, a partner at Carter & English. Bob, I've
1:27
Speaker 3: never seen an attorney attack a holdout juror or any juror.
1:32
Speaker 3: So it's very unusual. And now the defense attorney is
1:36
Speaker 3: asking the judge to investigate this holdout juror. What's he
1:40
Speaker 3: looking for?
1:41
Speaker 4: The defense lawyer has taken a rather aggressive tactic here
1:46
Speaker 4: going after the lone holdout juror who has now been
1:50
Speaker 4: identified by name and has in fact gone out and
1:54
Speaker 4: hired his own lawyer to represent him in this matter.
1:58
Speaker 4: And the defense lawyer in the Clancy case is really
2:01
Speaker 4: trying to focus all of the attention now on this
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Speaker 4: lone holdout juror. Remember, the jurors apparently were 11 to
2:10
Speaker 4: 1 with 11 jurors in favor of returning a verdict
2:15
Speaker 4: of not guilty by reason of insanity based on the
2:17
Speaker 4: defense argument that she lacked the requisite criminal intent. And
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Speaker 4: the lone holdout juror refused to agree, which resulted in
2:25
Speaker 4: a mistrial.
2:26
Speaker 2: Now, Ms.
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Speaker 4: Clancy's defense lawyer is essentially going after this loan holdout juror,
2:32
Speaker 4: asking for all kinds of records about this juror, asking
2:37
Speaker 4: for information about the juror's cell phone. According to other jurors,
2:43
Speaker 4: this loan holdout juror was seen scrolling through his cell
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Speaker 4: phone during deliberation. So the defense lawyer is asking the
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Speaker 4: court to turn over cell phone records, the calls, text
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Speaker 4: messages that may have been going on during deliberations, going
2:59
Speaker 4: after the juror's confidential questionnaire, wants to know whether that
3:04
Speaker 4: juror who was the lone holdout was truthful in the
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Speaker 4: questionnaire and whether he was truthful during voir dire, which
3:10
Speaker 4: is the point at which jurors are questioned during the
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Speaker 4: jury selection process. So he is really trying to turn
3:18
Speaker 4: this into an attack on this lone holdout juror, trying
3:22
Speaker 4: to argue that there was something improper in this juror's
3:26
Speaker 4: decision to not go along with the other jurors and
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Speaker 4: to refuse to reach a unanimous verdict of not guilty.
3:33
Speaker 3: Bottom line, so what? Suppose he finds that out. There's
3:37
Speaker 3: already been a mistrial declared. What can he hope to
3:40
Speaker 3: gain from that?
3:41
Speaker 2: Well, that's a good question.
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Speaker 4: I think we've seen here a flurry of motions being
3:47
Speaker 4: filed by the defense lawyer here. One of them is
3:51
Speaker 4: asking the judge to yet again declare essentially a directed verdict.
3:56
Speaker 4: What that really means is that under Massachusetts law, a
4:00
Speaker 4: defendant can ask the court to find them not guilty
4:03
Speaker 4: on the basis that the evidence is insufficient as a
4:06
Speaker 4: matter of law for a conviction. That can be filed
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Speaker 4: when the evidence is completed, which is exactly what Ms.
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Speaker 4: Clancy's defense lawyer did in this case. The judge denied
4:16
Speaker 4: it then. It can also be renewed after the conclusion
4:20
Speaker 4: of the case, which is what's happened here. So the
4:22
Speaker 4: defense lawyer is asking again for the judge to make
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Speaker 4: a finding as a matter of law that the evidence
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Speaker 4: was insufficient in order to convict his client and that
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Speaker 4: the case should simply be thrown out, basically saying that
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Speaker 4: there was not enough evidence presented by the prosecutors during
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Speaker 4: the trial that any reasonable juror could conclude that she
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Speaker 4: could appreciate the wrongfulness of her conduct or to conform
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Speaker 4: her conduct to the law, which is the standard for
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Speaker 4: finding somebody guilty. The defense lawyer has also made an
4:56
Speaker 4: interesting argument, essentially arguing that another trial would amount to
5:01
Speaker 4: double jeopardy. Now, the prosecutors in this case have not
5:04
Speaker 4: yet made a decision about retrying the case, but assuming
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Speaker 4: they go forward, which is likely, the defense is arguing
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Speaker 4: that the judge here failed to question the juror, that
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Speaker 4: lone holdout juror, when other jurors told the court that
5:19
Speaker 4: that juror had expressed doubts about Ms. Clancy's guilt, but
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Speaker 4: nonetheless refused to find her not guilty by lack of
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Speaker 4: criminal responsibility.
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Speaker 3: The way Reddington, the defense attorney, is attacking this juror,
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Speaker 3: I mean, has he crossed the line? I know that
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Speaker 3: the juror's attorney has said that he intends to file
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Speaker 3: a complaint against him because his conduct isn't consistent with
5:44
Speaker 3: the standards of professionalism that we expect from members of
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Speaker 3: the bar. Has he crossed the line in the way
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Speaker 3: he's treated this holdout juror?
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Speaker 4: Well, on the one hand, during the deliberations, it's understandable
5:58
Speaker 4: that the defense lawyer would have aggressively asked the judge
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Speaker 4: to question jurors and to try to see whether at
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Speaker 4: the end of the day there could be a unanimous
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Speaker 4: verdict here. The defense obviously thought that the jury was
6:12
Speaker 4: leaning towards acquittal. He knew that there was an 11
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Speaker 4: to 1 voter and knew at least that there was
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Speaker 4: an overwhelming majority. vote in favor of acquittal. And he
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Speaker 4: was trying to get that lone holdout juror to go
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Speaker 4: along with the other jurors.
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Speaker 2: But that's not what happened here. And what the.
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Speaker 4: Judge did in the face of the request by the
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Speaker 4: defense lawyer to question that juror was to bring each
6:36
Speaker 4: juror in one by one on the sixth day of
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Speaker 4: deliberations and asked each of them under oath if they
6:42
Speaker 4: could apply.
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Speaker 2: The law as instructed. That was the appropriate.
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Speaker 4: Thing to do because the allegation from the other jurors,
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Speaker 4: or at least from the defense lawyer, was that this
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Speaker 4: lone holdout juror was refusing to apply the law. And
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Speaker 4: if that's the case, then there could be a basis
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Speaker 4: to remove that juror. But each juror, one by one,
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Speaker 4: told the judge that they could apply the law as instructed,
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Speaker 4: including the loan holdout juror. And what the defense lawyer
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Speaker 4: is asking and what the defense lawyer is criticizing the
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Speaker 4: court here in not doing is probing the specific complaint.
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Speaker 4: In other words, specifically asking the lone holdout juror what
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Speaker 4: was his basis for failing to agree with the other
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Speaker 4: jurors that there should be a not guilty verdict or
7:30
Speaker 4: what was his basis for believing that the prosecution had
7:34
Speaker 4: proved his case beyond a reasonable doubt. That's something that
7:37
Speaker 4: the judge refused to go into. And I think that
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Speaker 4: was the appropriate approach because at that point, once you
7:42
Speaker 4: begin to try to peel back the understanding of why
7:47
Speaker 4: the juror was voting the way they were, it really
7:50
Speaker 4: becomes a situation where it could be looked at as
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Speaker 4: pressuring that juror to change their mind, as opposed to
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Speaker 4: simply asking whether they could follow the.
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Speaker 2: Law, which is exactly what the judge did here.
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Speaker 4: So the defense lawyer at that point, I think, was
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Speaker 4: reasonable in questioning that juror and asking the judge to
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Speaker 4: question the jurors, but to attack the juror now after
8:11
Speaker 4: a mistrial has been declared, really doesn't serve any purpose
8:16
Speaker 4: because there's not a high probability that any of these
8:20
Speaker 4: motions are going to be granted, in my opinion.
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Speaker 2: And going after that lone.
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Speaker 4: Holdout juror really will have potentially a chilling effect on jurors.
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Speaker 4: You really want a situation where jurors will make up
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Speaker 4: their own minds, will use their own understanding of the
8:37
Speaker 4: law as it's been explained to them by the court,
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Speaker 4: the facts as they have understood them at the end
8:42
Speaker 4: of a trial. and come to their own conclusion about
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Speaker 4: whether or not the prosecution has proven its case beyond.
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Speaker 2: A reasonable doubt.
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Speaker 4: And you could certainly see a reverse situation, which I
8:53
Speaker 4: think most people would find abhorrent, where there was one
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Speaker 4: lone holdout juror for acquittal and all the other jurors
9:02
Speaker 4: were voting for a conviction. And if that single juror
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Speaker 4: who was voting for acquittal ended up in a hung
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Speaker 4: trial was being pressured in order to gain a conviction,
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Speaker 4: I think most people would find that to be a
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Speaker 4: heavy-handed tactic. And so this really does raise the question
9:19
Speaker 4: about whether the defense lawyer is just going too far
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Speaker 4: in attacking this juror who has repeatedly said that he
9:27
Speaker 4: looked at the evidence, he looked at the law, and
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Speaker 4: simply came to a different conclusion than his fellow jurors.
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Speaker 2: He's entitled to do that.
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Speaker 4: And to attack him simply because he refused to go
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Speaker 4: along with the other 11 jurors is something that most lawyers,
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Speaker 4: I think, would find to be crossing the line.
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Speaker 3: Possibility of a plea deal. We don't know if there
9:48
Speaker 3: have been plea deal negotiations, but the defense attorney has
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Speaker 3: said he would not accept a plea deal that included
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Speaker 3: jail time for his client. So that doesn't leave much
10:00
Speaker 3: room for a plea deal.
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Speaker 2: You're exactly right.
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Speaker 4: I think a compromise plea is unlikely in this case
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Speaker 4: just because the two competing narratives here are so far apart.
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Speaker 4: On the one hand, the defense story is that this
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Speaker 4: is a case of a woman who herself was a
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Speaker 4: victim despite having admitted to this horrific crime of murdering
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Speaker 4: her three young children. The defense was arguing that she
10:26
Speaker 4: took all of these steps to try to obtain help
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Speaker 4: for her mental health issues and that really she was,
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Speaker 4: in a sense, a victim of a system that overlooks
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Speaker 4: maternal mental health. That was something that the defense discussed.
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Speaker 4: that's raised over and over again, and it's completely at
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Speaker 4: odds with the prosecution's case. The prosecution is looking at
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Speaker 4: the victims here, the three young children, and is doing
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Speaker 4: what prosecutors believe is justice, justice for those three young
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Speaker 4: children who were brutally murdered. And it's hard to find
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Speaker 4: any common ground between those two competing narratives. And that's
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Speaker 4: why it's unlikely that that a plea deal will be
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Speaker 4: worked out here. It's much more likely that this case
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Speaker 4: will be retried. Prosecutors might change the charges that they bring.
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Speaker 4: They may not decide to bring first-degree murder charges again,
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Speaker 4: but I think it's very likely that we'll see another
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Speaker 4: trial here.
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Speaker 3: Coming up next, is the judge likely to set a
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Speaker 3: trial date tomorrow, or might there be more proceedings? I'm
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Speaker 3: June Grosso, and this is Bloomberg. Tomorrow, Lindsay Clancy will
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Speaker 3: appear in court for the first time since a judge
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Speaker 3: declared a mistrial in her murder trial. The jury was
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Speaker 3: hung 11 to 1 in the trial accusing her of
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Speaker 3: murdering her three children. I've been talking to former federal
11:51
Speaker 3: prosecutor Robert Mintz of McCarter & English. Bob, what are
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Speaker 3: the things that prosecutors consider when deciding whether to retry
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Speaker 3: someone after a mistrial?
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Speaker 4: Well, the prosecution is going to go back and they're
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Speaker 4: certainly going to dissect the case. They're going to look
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Speaker 4: at the way the case was tried. They're going to
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Speaker 4: look at the way the evidence went in.
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Speaker 2: They are not oblivious to the fact that at least.
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Speaker 4: These jurors were overwhelmingly in favor of acquittal. So they
12:18
Speaker 4: may try to retool this case in a different way
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Speaker 4: in terms of how they present the case. They may
12:24
Speaker 4: try to change the charges. They may drop the first
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Speaker 4: degree murder. and leave manslaughter in and other charges. They
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Speaker 4: also consider the victims. In this case, you have the husband,
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Speaker 4: the grieving husband who lost his three children, who has
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Speaker 4: to endure the difficulties of sitting through another trial. But
12:45
Speaker 4: at the end of the day, the prosecutor is going
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Speaker 4: to do what he believes is the just thing to do.
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Speaker 4: And if he looks at this case and believes in
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Speaker 4: his heart that this case was one where the defendant
13:00
Speaker 4: knew what she was doing, despite the fact that she
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Speaker 4: clearly had some mental health issues.
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Speaker 2: He's going to retry the case. And that's, I think,
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Speaker 2: what's going to happen here.
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Speaker 3: In light of the attack on the loan holdout juror,
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Speaker 3: is it going to be hard to find a jury,
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Speaker 3: you know, jurors that want to sit on this case?
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Speaker 4: Well, that's certainly what the loan holdout juror's attorney is arguing,
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Speaker 4: that this will have a killing effect. that this really
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Speaker 4: is something that people should sit up and pay attention
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Speaker 4: to because this really is an attack on our constitutional
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Speaker 4: system in which a jury of our peers are the
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Speaker 4: people who judge us at trial, and it's important that
13:39
Speaker 4: we have people willing to serve. And if a juror
13:43
Speaker 4: believes that if they don't agree with their fellow jurors,
13:46
Speaker 4: whether that's for conviction or acquittal, that they're going to
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Speaker 4: be singled out, that they're going to be named publicly,
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Speaker 4: and they're going to be attacked for their beliefs, That
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Speaker 4: could make it more difficult to sit jurors who represent
14:00
Speaker 4: a reasonable cross-section of our society, and that's exactly what
14:05
Speaker 4: defense lawyers and prosecutors are looking for when they select jurors.
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Speaker 4: They want jurors who will ultimately make up their minds
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Speaker 4: independently of the other jurors based on the evidence and
14:17
Speaker 4: based on the law as it is explained to them
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Speaker 4: by the court so they can exercise their own independent judgments.
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Speaker 2: As to whether or not the defendant is guilty or innocent.
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Speaker 3: Let's talk about some of the motions that the defense
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Speaker 3: attorney is making. He claims that the judge should have
14:34
Speaker 3: questioned that holdout juror about why he was holding out, basically,
14:40
Speaker 3: and also that the judge should have allowed the jury
14:42
Speaker 3: to deliberate longer.
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Speaker 4: The standard that the court has to follow when deciding
14:48
Speaker 4: when jurors can no longer continue to deliberate and the
14:51
Speaker 4: judge has to declare a mistrial, is when the judge
14:54
Speaker 4: decides that manifest necessity requires a mistrial. In other words,
15:00
Speaker 4: when all other options to reach a verdict have been
15:03
Speaker 4: exhausted and there is simply no point in continuing to deliberate.
15:07
Speaker 2: Here, the defense is arguing that the.
15:09
Speaker 4: Judge rushed to judgment, declared a mistrial prematurely rather than
15:14
Speaker 4: continuing to question the loan holdout juror or the jury
15:18
Speaker 4: foreperson who had said that the loan holdout juror was
15:21
Speaker 4: not following the law. and that the judge here acted
15:24
Speaker 4: too quickly. Again, I don't think this is one that
15:27
Speaker 4: is likely to succeed on appeal. I think this is
15:30
Speaker 4: one where the appellate courts will give deference to the judge.
15:34
Speaker 4: The judge did question jurors one by one about whether
15:38
Speaker 4: or not they could follow the law. I think that
15:40
Speaker 4: was the appropriate thing to do. Really here, what the
15:43
Speaker 4: defense is trying to argue is that the judge should
15:46
Speaker 4: have gone further and asked that lone holdout juror what
15:51
Speaker 4: was their basis for failing to agree with the other
15:54
Speaker 4: jurors that there should be a not guilty by reason
15:57
Speaker 4: of insanity. And the judge was not going to go there.
16:00
Speaker 4: The judge was not going to get into the reasoning
16:02
Speaker 4: as to why jurors reach certain decisions. And that's something
16:07
Speaker 4: that under the law is generally protected. In other words,
16:11
Speaker 4: courts do not like to peel back the curtain and
16:15
Speaker 4: look at jurors and ask questions about how they reach
16:18
Speaker 4: their decisions. It's done in private. It's in the jury room.
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Speaker 4: There's no transcript that's created of deliberations intentionally. Jurors are
16:28
Speaker 4: allowed to go back and forth, conduct those deliberations without
16:32
Speaker 4: fear that anything they say during those deliberations will be
16:35
Speaker 4: made public. And so to ask a juror about why
16:39
Speaker 4: they're reaching or leaning towards a particular decision is just
16:43
Speaker 4: not something the court was going to do. And it's
16:45
Speaker 4: not something I think that the appellate court will find
16:48
Speaker 4: that the judge erred in refusing to go there.
16:51
Speaker 3: Bob, what does it take for a judge to dismiss
16:54
Speaker 3: a juror in the middle of deliberations, especially when they've
16:58
Speaker 3: learned that there is one holdout?
17:01
Speaker 4: Well, it's highly difficult to dismiss a juror during deliberations, particularly,
17:06
Speaker 4: as you said, once it's known that the defense is
17:09
Speaker 4: asking the lone holdout to a not guilty verdict. to
17:14
Speaker 4: be removed because that looks like it is a results-oriented
17:18
Speaker 4: decision then in order to try to get a not
17:21
Speaker 4: guilty verdict. But during the course of a trial, there
17:24
Speaker 4: are circumstances where jurors are removed, and that's why in
17:28
Speaker 4: every case, in addition to the men and women who
17:31
Speaker 4: are seated as part of the jury, they're also what's
17:34
Speaker 4: called alternate jurors, which are men and women who are
17:38
Speaker 4: picked to be on the jury but don't actually sit
17:41
Speaker 4: in the jury box and hear the case, but they
17:44
Speaker 4: are there in the courtroom hearing all the evidence so
17:47
Speaker 4: that if a juror is removed, one of the alternates
17:50
Speaker 4: then steps in and takes their place and the whole
17:54
Speaker 4: case doesn't have to be tried again. And when that happens,
17:58
Speaker 4: it's generally a circumstance either where a juror becomes ill
18:01
Speaker 4: and is unable to complete the trial and to sit
18:05
Speaker 4: and render a verdict at the end of the case.
18:08
Speaker 4: Or in rare instances, there's cases where it's proven that
18:12
Speaker 4: a juror has disregarded the court's instructions with regard to
18:17
Speaker 4: not discussing the case and with regard to not reading
18:20
Speaker 4: any news accounts or getting any outside information about the
18:24
Speaker 4: trial because it's very important to that at the end
18:26
Speaker 4: of the day, jurors make their decisions based solely on
18:29
Speaker 4: the evidence that's presented during the trial, that's admitted during
18:34
Speaker 4: the trial over objections and rulings by the court, and
18:38
Speaker 4: that they're not influenced in any way by any information
18:41
Speaker 4: that they may have heard about the case or may
18:43
Speaker 4: hear about the case during the course of the trial.
18:46
Speaker 4: So there have been instances where jurors have acknowledged to
18:50
Speaker 4: reading newspapers or to have looked on their phone and
18:52
Speaker 4: gathered information about a trial during the course of the trial.
18:56
Speaker 2: And once that happens, they have.
18:58
Speaker 4: Essentially infected the deliberation process with information that was not
19:03
Speaker 4: presented during the trial. And a juror can be removed
19:06
Speaker 4: for that purpose. But you're not going to have a situation.
19:09
Speaker 2: Where a juror tells the judge that.
19:12
Speaker 4: They are making a decision based solely on the evidence
19:15
Speaker 4: and that they have agreed.
19:16
Speaker 2: That they will follow the law as it has been
19:19
Speaker 2: explained to them by the judge.
19:21
Speaker 4: And be removed because another juror is arguing that they're
19:25
Speaker 4: not following the law. That's simply a disagreement between or
19:29
Speaker 4: among jurors as to what the proper verdict can be.
19:32
Speaker 4: There's nothing improper about it, and a judge is not
19:34
Speaker 4: going to remove a juror on that basis.
19:37
Speaker 3: His double jeopardy motion seems like it's more than a
19:41
Speaker 3: long shot.
19:43
Speaker 4: If there's a mistrial, you know, your options are much
19:46
Speaker 4: more limited. And, you know, you can file those motions
19:49
Speaker 4: that he is filing, but they're just unlikely to succeed here.
19:52
Speaker 4: You know, there's certainly not going to be a finding
19:54
Speaker 4: of double jeopardy because the court, you know, failed to
19:57
Speaker 4: question the jurors the way he would have liked.
19:59
Speaker 2: It's probably not going to happen.
20:01
Speaker 3: So you think that what happens tomorrow is the defense's
20:04
Speaker 3: motions are denied and maybe the judge sets a trial date?
20:09
Speaker 4: Well, if the motions tomorrow are denied, I think we
20:12
Speaker 4: will expect to see an appeal, and that will delay
20:16
Speaker 4: a retrial. If the defense motion concerning the judge's alleged
20:22
Speaker 4: failure to adequately question jurors based upon the allegation that
20:27
Speaker 4: one juror was not following the law, If it goes
20:29
Speaker 4: against the defense, which is what I expect, I think
20:32
Speaker 4: we'll see that taken up on appeal.
20:33
Speaker 2: So I think the.
20:34
Speaker 4: Next phase of this process is going to be an appeal,
20:38
Speaker 4: which will have to be resolved before the next trial
20:41
Speaker 4: can take place.
20:42
Speaker 3: Clancy's defense attorney did make an emergency appeal to the
20:45
Speaker 3: Massachusetts Supreme Judicial Court to block the trial judge from
20:50
Speaker 3: declaring a mistrial, and they ruled against that. So does
20:55
Speaker 3: it seem unlikely that they would reverse based on that
20:58
Speaker 3: same issue?
20:59
Speaker 2: No, I think it's unlikely.
21:01
Speaker 4: Trial judges are given a lot of deference to make
21:04
Speaker 4: decisions during the course of trials. And in this case,
21:07
Speaker 4: there's nothing that the judge did that was unreasonable. The
21:11
Speaker 4: judge did question jurors about whether that juror could follow
21:14
Speaker 4: the law. I don't think the judge is going to
21:17
Speaker 4: allow this inquiry into.
21:20
Speaker 2: The lone holdout juror.
21:22
Speaker 4: And so I don't think any of these motions that
21:25
Speaker 4: the defense are making are likely to succeed. And I
21:28
Speaker 4: think we'll see an appeal first, which will likely ultimately
21:32
Speaker 4: be denied. And then this case will be set for
21:34
Speaker 4: another trial.
21:36
Speaker 3: I guess tomorrow we'll at least learn whether or not
21:38
Speaker 3: there have been any plea negotiations. And perhaps the judge
21:42
Speaker 3: will announce his decision on the motions as well. Thanks
21:45
Speaker 3: so much, Bob. That's Robert Mintz of McCarter & English.
21:50
Speaker 3: coming up next on the Bloomberg Law Show. For the
21:52
Speaker 3: third time, the Supreme Court rules that Missouri must use
21:56
Speaker 3: its map from 2022 in the midterms, not a Republican-drawn map.
22:02
Speaker 3: I'm June Grosso, and you're listening to Bloomberg.
22:08
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
22:16
Speaker 3: On Friday, the Supreme Court handed down two decisions in
22:19
Speaker 3: election-related cases. For the third time, the court said Missouri
22:24
Speaker 3: can't use a Republican-drawn congressional map in the November midterm elections.
22:29
Speaker 3: That was unanimous for the third time. And over the
22:33
Speaker 3: dissents of the court's three liberals, the court reinstated President
22:37
Speaker 3: Trump's expansion of a federal database to help verify voter
22:41
Speaker 3: eligibility for the midterms. Joining me is elections law expert
22:45
Speaker 3: Richard Brafault, a professor at Columbia Law School. The Supreme
22:49
Speaker 3: Court rejected Missouri Republicans' map twice in one week. After that,
22:54
Speaker 3: why did the Eighth Circuit come back and say that
22:58
Speaker 3: the Constitution required that the state use that Republican map?
23:06
Speaker 1: Yeah, so in the Eighth Circuit's view, the problem was
23:11
Speaker 1: that because the primary— had been held under the newly
23:17
Speaker 1: gerrymandered map, but the election was going to be held
23:20
Speaker 1: under the older, the pre-gerrymandered map. That meant that something
23:26
Speaker 1: like a quarter of the voters were voting in the
23:29
Speaker 1: general election only, but were ineligible to vote in the
23:31
Speaker 1: primary in the district in which they were voting for
23:34
Speaker 1: the general election. Because as a result of the shift
23:38
Speaker 1: from the gerrymandered map to the pre-gerrymandered map, about somewhere
23:42
Speaker 1: between 20 and 25 percent of the people, or of
23:45
Speaker 1: the voters, depending on which you look at it, were
23:47
Speaker 1: relocated from one district to another. Some of them would
23:50
Speaker 1: have voted in the primary in one district, but be
23:53
Speaker 1: in the general election for another district. And that meant,
23:56
Speaker 1: in Circuit's view, they were not equally situated relative to
24:00
Speaker 1: the other voters in that district, who also had a
24:03
Speaker 1: shot at voting in the primary. They viewed that as
24:05
Speaker 1: an equal protection problem, somewhat very loosely akin to Bush
24:09
Speaker 1: versus Gore. So in their view, statewide, roughly a quarter
24:14
Speaker 1: of the voters were being unequally treated because they did
24:18
Speaker 1: not have the opportunity to vote in the primary that
24:22
Speaker 1: set up the general election.
24:24
Speaker 3: And the Supreme Court said, weren't you here before?
24:27
Speaker 1: The Supreme Court basically said something along the lines like,
24:30
Speaker 1: that's an interesting argument, but it's too late. It's too
24:33
Speaker 1: late for this time. They basically said, I think they
24:36
Speaker 1: sent it back. I mean, that issue may work its
24:38
Speaker 1: way through the courts eventually, but they basically said, not
24:41
Speaker 1: only are we close to the election, The election has
24:44
Speaker 1: already started. The ballots have already gone out. You can't
24:48
Speaker 1: do that. It was actually a district court decision initially
24:52
Speaker 1: in Missouri, and then the Eighth Circuit had upheld the
24:54
Speaker 1: district court. The Supreme Court just said, stop. Everything has
24:58
Speaker 1: stayed until such time as, in fact, there's a full
25:01
Speaker 1: litigation of that other issue. But in any event, the
25:04
Speaker 1: Supreme Court made it very, very clear that the 2022 map,
25:10
Speaker 1: I'll call it the pre-gerrymander map, is the one that
25:12
Speaker 1: will be used in the general election in Missouri.
25:14
Speaker 3: I mean, wasn't it clear before? The Supreme Court said,
25:17
Speaker 3: given this court's two prior orders in this litigation, our
25:21
Speaker 3: conclusion that this was error should come as no surprise.
25:25
Speaker 1: It was quite clear. I mean, all three decisions of
25:28
Speaker 1: the court were unanimous. I think there is even a
25:31
Speaker 1: level of, you know, you're really blatantly disobeying us. And
25:36
Speaker 1: it doesn't matter that you're a conservative panel. I think
25:39
Speaker 1: it was a Trump-appointed judge on the district court. And
25:42
Speaker 1: I'm not sure who all the judges were on the circuit,
25:44
Speaker 1: but I know at least one of the concurring judges
25:47
Speaker 1: was a Trump judge who basically said the plaintiffs didn't
25:49
Speaker 1: even have standing to bring the case. So I think
25:53
Speaker 1: the court said, you know, if there's anything to the
25:56
Speaker 1: so-called Purcell principle, which is that federal court should not
25:59
Speaker 1: step in close to an election, this was it. And
26:02
Speaker 1: I guess in some ways it gave them the opportunity
26:05
Speaker 1: to show that they will use that against Republicans as
26:07
Speaker 1: well as against Democrats. Since most of the most prominent
26:11
Speaker 1: cases in recent years have been ones in which there
26:13
Speaker 1: were voting rights advocates who lost.
26:16
Speaker 3: So let's turn to the other Supreme Court decision that
26:19
Speaker 3: allows the Trump administration to use this government database that
26:24
Speaker 3: includes social security information. I mean, it's a database that,
26:29
Speaker 3: should we say it isn't considered 100% reliable?
26:33
Speaker 1: Yes. To step back a little bit, this database was
26:36
Speaker 1: originally created. It also has the acronym SAVE but shouldn't
26:40
Speaker 1: be confused with the Save America Act, SAVE. It was
26:43
Speaker 1: originally created in the Department of Homeland Security as a
26:48
Speaker 1: way of being sure that people who use federal benefits
26:52
Speaker 1: are entitled to them. In fact, it's the systematic alien
26:56
Speaker 1: verification for entitlements, and it's to make sure that non-citizens
27:01
Speaker 1: don't receive Medicaid and don't receive various welfare benefits and
27:05
Speaker 1: things like that. And then one of the initiatives of
27:08
Speaker 1: the Trump administration has kind of opened it up and
27:11
Speaker 1: to try and turn it into a more general database
27:13
Speaker 1: on citizenship. So historically, Homeland Security basically kept it as
27:17
Speaker 1: a list of immigrants. But Trump said, basically told the
27:22
Speaker 1: Social Security Administration, which of course only has citizens, to
27:25
Speaker 1: begin to, in effect, share its database with Homeland Security, DHS,
27:30
Speaker 1: to create kind of a mega database of citizens with
27:34
Speaker 1: the idea of figuring out who would be eligible to
27:36
Speaker 1: vote so that I think the long-term goal was to
27:40
Speaker 1: combine it with the mail-in ballot restrictions that were proposed
27:44
Speaker 1: but have been temporarily put on hold, that this would
27:47
Speaker 1: be the database that the Postal Service would examine to
27:51
Speaker 1: determine whether or not a mail-in ballot was valid. This
27:55
Speaker 1: is not nearly that far. All that the administration was doing,
28:00
Speaker 1: was directing the Social Security Administration to put their records
28:05
Speaker 1: into this database to create kind of a mega database
28:08
Speaker 1: on citizenship, which would be available to the states on
28:12
Speaker 1: an optional voluntary basis if the states wanted to use
28:16
Speaker 1: it to check on the citizenship of voters. And something
28:20
Speaker 1: like two dozen states have opted in to do this,
28:23
Speaker 1: and something like two dozen states have refused to do this.
28:26
Speaker 1: It should add up to 50, and I'm a little under,
28:28
Speaker 1: but that's amazing. So-called red states have been using it
28:31
Speaker 1: to check, and so-called, um, Blue states have not. The
28:36
Speaker 1: other thing that the administration did along the way is
28:38
Speaker 1: say once you put the Social Security data in, states
28:42
Speaker 1: could basically submit multiple requests for checking at the same time.
28:45
Speaker 1: As previously, it was individuals that they were checking to
28:48
Speaker 1: see if they were eligible for, let's say, Medicaid. But
28:51
Speaker 1: now the idea was to create bulk reviews of people
28:54
Speaker 1: that the states thought might not be eligible to vote.
28:58
Speaker 1: The lower court struck this down on several grounds, mostly
29:01
Speaker 1: on violation of privacy. that Social Security Administration is supposed
29:06
Speaker 1: to be closely held and not shared with other agencies.
29:09
Speaker 1: And Homeland Security was not supposed to be making it
29:13
Speaker 1: available except on a limited basis. And so, but the
29:18
Speaker 1: big issue was whether or not the Social Security laws
29:21
Speaker 1: privacy provisions and the Privacy Act protections for privacy prevented
29:25
Speaker 1: the Social Security Administration from sharing this. The Supreme Court
29:29
Speaker 1: relying on arguments made by the government concerning two provisions
29:34
Speaker 1: of the immigration law, the 1996 immigration law, said that
29:39
Speaker 1: those provisions, which prohibited people from interfering with the ability
29:46
Speaker 1: of DHS, of Homeland Security, to get information concerning the
29:50
Speaker 1: citizenship or immigration status of individuals, that those in turn
29:56
Speaker 1: in effect constituted a kind of amendment to to the
29:59
Speaker 1: Social Security Act or the privacy law authorizing Social Security, SSA,
30:04
Speaker 1: Social Security Administration, to provide that data. That was the
30:08
Speaker 1: court's holding on the merits. And the court said, because
30:11
Speaker 1: this had come up on, I guess, the lower court,
30:14
Speaker 1: had issued a stay and held that the program was invalid,
30:18
Speaker 1: the SAFE program was invalid. And then the D.C. Circuit,
30:22
Speaker 1: a divided D.C. Circuit panel affirmed that, and the government
30:25
Speaker 1: came to the Supreme Court for a stay. So all
30:27
Speaker 1: they got was a stay of the district courts opinion,
30:30
Speaker 1: allowing DHS to go forward with this program and make
30:34
Speaker 1: the information available. In theory, it's going to go back
30:37
Speaker 1: to the lower court for a full trial. But the
30:39
Speaker 1: Supreme Court has already basically signaled that it thinks that
30:42
Speaker 1: on the merits, it's likely that the government will win.
30:46
Speaker 3: What impact will this have on the midterm since we're
30:49
Speaker 3: in what's called the quiet period before elections, right?
30:54
Speaker 1: Under another federal law, there cannot be mass purges of
30:58
Speaker 1: voters in the 90 days preceding an election. There could
31:02
Speaker 1: be individualized checking on individual voters, but there cannot be
31:06
Speaker 1: mass purges. And the Supreme Court signaled its view that
31:10
Speaker 1: they thought it was unlikely that this would have much
31:13
Speaker 1: of an impact in the next 35 days, approximately, until
31:17
Speaker 1: the election. And the dissenters also made a point of
31:20
Speaker 1: emphasizing that. So that It's unlikely, although I guess we'll see,
31:26
Speaker 1: but it's unlikely that this will have an impact on midterms.
31:30
Speaker 1: It could be more significant for the 2028 general election.
31:33
Speaker 1: I saw some data that Texas has been using this program.
31:38
Speaker 1: There are several million voters in Texas, and I think
31:40
Speaker 1: they found something in the order of 20,000 or 30,000
31:43
Speaker 1: voters that they thought were problematic under this. It doesn't
31:46
Speaker 1: mean that they're non-citizens. I mean, and that some of them,
31:48
Speaker 1: in fact, were citizens on further examination. Social Security, of course...
31:52
Speaker 1: begins with people who are citizens by birth or are
31:55
Speaker 1: at the age of getting social security numbers, there's often
31:58
Speaker 1: a gap in a lot of these databases for people
32:01
Speaker 1: who become naturalized citizens. The databases are not always up
32:05
Speaker 1: to date. And it seems that a lot of the
32:07
Speaker 1: issues may relate to people who have become citizens since
32:12
Speaker 1: the last time the database was fully brought up to date.
32:15
Speaker 1: And so there will be issues, I think, about people
32:17
Speaker 1: who've been through the citizenship process since the last time
32:22
Speaker 1: the databases were examined and corrected.
32:25
Speaker 3: So even though the Trump administration and Trump has said
32:29
Speaker 3: repeatedly that all these non-citizens are voting, there's very little
32:33
Speaker 3: evidence of it. So why spend so much time and
32:37
Speaker 3: effort on something like this, you know, this great reveal
32:41
Speaker 3: of non-citizens voting? Actually, it might kick back Republican voters
32:45
Speaker 3: as well.
32:46
Speaker 1: I mean, this has been Trump's obsession since 2016. Remember, 2016,
32:52
Speaker 1: Trump won the election by winning the electoral vote in
32:55
Speaker 1: a small number of key states, but he overall lost
32:57
Speaker 1: the popular vote by several million votes. And he has
33:00
Speaker 1: from that point on said he had won the popular
33:03
Speaker 1: vote if only citizens were voted. So from 2016 on,
33:07
Speaker 1: he has been obsessed with the idea that there are
33:09
Speaker 1: large numbers of non-citizens voting and that that's why he
33:13
Speaker 1: lost the popular vote in 2016. And that that's why
33:17
Speaker 1: he also really won in 2020. if only real, only
33:20
Speaker 1: actual citizens voted. And so it's been a long-term obsession
33:23
Speaker 1: on his point that non-citizens have been voting, and that's
33:27
Speaker 1: why he lost the popular vote in 2016 and 2020.
33:30
Speaker 1: And in his view, of course, the non-citizens are helping Democrats.
33:35
Speaker 1: And so it has become a centerpiece of his election
33:39
Speaker 1: law agenda to root out all non-citizens from voting based
33:44
Speaker 1: on the assumption that there are large numbers of non-citizens voting.
33:49
Speaker 1: There was this recent story that the Department of Justice
33:51
Speaker 1: had alerted the state of Nevada that they had found
33:54
Speaker 1: out that there were something like tens of thousands of
33:56
Speaker 1: non-citizens voting. Nevada went back and focused that there might
34:00
Speaker 1: have been 184, and all the 184 were cleared and
34:03
Speaker 1: were actually citizens. Some of it is a lot of
34:06
Speaker 1: the time, if the government thinks that so-and-so is a problem,
34:09
Speaker 1: they will write to that person and ask that person
34:12
Speaker 1: to provide proof of citizenship. Many people ignore that mail.
34:15
Speaker 1: And so it could very well be a question might
34:17
Speaker 1: arise about somebody. The government sends an official letter of
34:21
Speaker 1: some sort, and that letter is not answered. And the
34:24
Speaker 1: government treats that as proof of non-citizenship. A lot of
34:28
Speaker 1: people don't see their mail or ignore their mail. That's
34:31
Speaker 1: technically supposed to be what the process is here. If
34:33
Speaker 1: there's a question about your citizenship, they're supposed to reach
34:36
Speaker 1: out and contact you and give you an opportunity to
34:39
Speaker 1: correct the record. But many people don't respond to government mail.
34:44
Speaker 1: And so they will be treated as registered. Again, no
34:47
Speaker 1: one knows if they voted as registered, as non-citizens registered
34:51
Speaker 1: to vote. When they may very well be citizens, they
34:53
Speaker 1: just haven't gone around to clearing the record. Which is
34:56
Speaker 1: not to say there are no non-citizens who are registered
34:59
Speaker 1: to vote. It was a recent development in New Jersey
35:02
Speaker 1: that several hundred people were improperly registered. That typically happens
35:06
Speaker 1: when a local registrar kind of made me understand what
35:10
Speaker 1: a green card is. and think that green card makes
35:13
Speaker 1: you eligible to vote when it does not. So there
35:16
Speaker 1: are non-citizens who have been registered to vote, small numbers,
35:20
Speaker 1: and in most cases that's really a matter of administrator
35:24
Speaker 1: error rather than any attempt on the part of a
35:27
Speaker 1: voter to engage in fraud. Non-citizens may think that having
35:31
Speaker 1: a green card or being in the citizen application process
35:36
Speaker 1: is enough, but there's just about no evidence of organized
35:39
Speaker 1: fraud There is evidence of mistakes.
35:43
Speaker 3: Might this be a problem long term, having, you know,
35:46
Speaker 3: the states have access to the Social Security numbers, or
35:49
Speaker 3: is it just a privacy concern?
35:52
Speaker 1: It's probably both. There is a privacy concern. This information
35:55
Speaker 1: is now out there in the hands of another government agency,
35:57
Speaker 1: which may or may not be very vigorous in protecting it.
36:01
Speaker 1: And then the information will be supplied to the states.
36:04
Speaker 1: So there are now many more weak links in the
36:07
Speaker 1: privacy chain. And in terms of voters, there's just a
36:10
Speaker 1: more serious doubt about the quality of the information. It's just,
36:14
Speaker 1: as I say, there are errors in these databases. Some
36:16
Speaker 1: are just errors of data entry. Some are errors of
36:19
Speaker 1: failure to update databases. And so there would no doubt
36:22
Speaker 1: be some voters who will be improperly challenged or improperly
36:28
Speaker 1: deny the right to vote because they will be challenged
36:31
Speaker 1: based on flawed information and the voter will fail to respond.
36:35
Speaker 3: You mentioned the 90-day quiet period. Are states aggressively looking
36:40
Speaker 3: for non-citizens on their rolls? Any red states doing that?
36:44
Speaker 1: There's been some evidence that some. I think Texas was.
36:47
Speaker 1: I think there are a number of states that are. And,
36:49
Speaker 1: of course, now the Justice Department has said that they
36:51
Speaker 1: will vigorously prosecute state officials who interfere with the removal
36:57
Speaker 1: of non-citizens or who are in many ways facilitate the
36:59
Speaker 1: registration of non-citizens. So you can imagine that state and
37:03
Speaker 1: local officials even Not in red states are going to
37:06
Speaker 1: be more attentive to this, and they may make mistakes.
37:09
Speaker 1: But apparently there was a big move in Texas. Many
37:11
Speaker 1: thousands of people were affected, and it turns out that
37:14
Speaker 1: at least 20% were mistakes. 20% of the people delisted
37:19
Speaker 1: were actually done so in error, and that's been proven
37:21
Speaker 1: to be mistakes. And this is voluntary, so the states
37:25
Speaker 1: that don't want to use it don't have to use it.
37:28
Speaker 1: And there are the 23 states that have so far
37:31
Speaker 1: succeeded in prohibiting delisting, the Department of Justice from getting
37:35
Speaker 1: their voter rolls. I mean, the ultimate goal of the
37:37
Speaker 1: administration would be to create this database and then get
37:39
Speaker 1: the voter rolls from the states and the administration to
37:41
Speaker 1: its own comparison. So far, that's really only a possibility
37:45
Speaker 1: for the states that don't resist, and every state that
37:48
Speaker 1: has resisted has won.
37:50
Speaker 3: Thanks so much, Rich. That's Professor Richard Brafault of Columbia
37:54
Speaker 3: Law School. And that's it for this edition of the
37:56
Speaker 3: Bloomberg Law Show. Remember, you can always get the latest
37:59
Speaker 3: legal news on our Bloomberg Law Podcast. You can find
38:02
Speaker 3: them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast
38:09
Speaker 3: slash law. And remember to tune into the Bloomberg Law
38:12
Speaker 3: Show every weeknight at 10 p.m. Wall Street time. I'm
38:16
Speaker 3: June Grosso, and you're listening to Bloomberg.