Latest / Bloomberg Law / NYC Mayor Off the Hook & Noncitizen Voting

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NYC Mayor Off the Hook & Noncitizen Voting · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg.
0:06
Speaker 2: Radio City Elections.
0:12
Speaker 3: My fellow New Yorkists, as you may have heard, the
0:17
Speaker 3: Department of Justice has directed that the case against me
0:22
Speaker 3: be dismissed, finally ending a month's long saga that put me,
0:29
Speaker 3: my family, and the city to an unnecessary ordeal.
0:34
Speaker 2: In a stunning memo, Acting Deputy Attorney General Emil Beauvey
0:39
Speaker 2: told federal prosecutors in Manhattan to dismiss the criminal corruption
0:43
Speaker 2: case against New York City Mayor Eric Adams. Even more
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Speaker 2: stunning are the political reasons given for dropping the case.
0:52
Speaker 2: The merits of the bribery charges against Adams were not
0:56
Speaker 2: even considered. Adams is accused of accepting illegal campaign contributions
1:01
Speaker 2: and lavish travel perks worth more than one hundred thousand dollars.
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Speaker 2: He spoke today as if he'd been vindicated.
1:09
Speaker 3: So I thank the Justice Department for its honesty. Now
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Speaker 3: we can put this cruel episode behind us and focus
1:17
Speaker 3: entirely on the future about city.
1:20
Speaker 2: Adams may want to put the episode behind him, but
1:24
Speaker 2: under the terms laid out in the memo, the charges
1:27
Speaker 2: against him could still be refiled after the November mayoral election.
1:31
Speaker 2: My guest is former federal prosecutor Robert Mintz, a partner
1:35
Speaker 2: maccarter in English, Bob, I want to put this dismissal
1:38
Speaker 2: of the case against Adams in context. According to the memo,
1:43
Speaker 2: the decision was made without considering the evidence against Adams
1:48
Speaker 2: or the theory of the case against him. The decision
1:51
Speaker 2: was made for a string of political reasons, including that
1:56
Speaker 2: the prosecution has impeded Adam's ability to asston. Trump's crackdown
2:01
Speaker 2: on immigration and crime, interfered with Adam's re election campaign,
2:06
Speaker 2: and the case has been tainted by pre trial publicity.
2:09
Speaker 2: So how unusual is it to have Main Justice tell
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Speaker 2: a US Attorney's office to drop a case for these reasons.
2:19
Speaker 4: Well, this decision by the Department of Justice, it directs
2:22
Speaker 4: the Southern District to drop this case, as highly unusual
2:25
Speaker 4: for a number of reasons. First of all, it's highly
2:28
Speaker 4: unusual because it's a pending case. It's not a question
2:32
Speaker 4: about whether or not to bring the charges in the
2:34
Speaker 4: first place. It's asking the US Attorney's office to drop
2:39
Speaker 4: the case in the middle of the prosecution. And there
2:41
Speaker 4: were two other reasons that were cited in the memo,
2:44
Speaker 4: by the acting Deputy Attorney General as the reason to
2:48
Speaker 4: dismiss the case. One of them was that they said
2:52
Speaker 4: that the case was brought too close to the election.
2:55
Speaker 4: It was brought about nine months before the mayoral primary
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Speaker 4: in New York, and the argument was that by doing
3:02
Speaker 4: that it interfered with the election, interfered with the primary,
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Speaker 4: and of course those charges are still pending as Mayor
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Speaker 4: Eric Adams is running for reelection. That's something that the
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Speaker 4: Department of Justice has paid attention to in the past.
3:17
Speaker 4: There's always been a directive not to bring cases close
3:20
Speaker 4: to an election so as to impact the election without
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Speaker 4: having voters know the result of the prosecution. But pushing
3:28
Speaker 4: it out nine months before a primary is really pushing
3:32
Speaker 4: it out far beyond what had been done in the past.
3:35
Speaker 4: The usual rule had been not to bring into indictment,
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Speaker 4: not to bring charges, not to take investigative steps in
3:42
Speaker 4: an overt way within about sixty days of an election,
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Speaker 4: So that made it unusual by pushing it out as
3:49
Speaker 4: far as nine months. But the other reason was even
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Speaker 4: more unusual, which is to say that by indicting a
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Speaker 4: sitting politician, it interfederate their ability to perform their job.
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Speaker 4: I mean that would be the case in any political
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Speaker 4: corruption case. Any sitting senator, any sitting governor, any elected
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Speaker 4: official who was indicted for corruption obviously is going to
4:09
Speaker 4: be distracted in defending themselves from those charges and will
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Speaker 4: not be able to fully devote their attentions to their
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Speaker 4: political position. So that seemed like an extremely strange reason,
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Speaker 4: and certainly the Department of Justice has never before to
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Speaker 4: my knowledge, used that as a basis not to prosecute
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Speaker 4: a case, or in this case, to ask that the
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Speaker 4: case be dismissed at this time. What is absolutely significant here,
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Speaker 4: as you mentioned June, is that clearly the Department of
4:38
Speaker 4: Justice has not made this decision based on the merits
4:42
Speaker 4: of the case, So they have never said that this
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Speaker 4: case should never have been brought in the first place.
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Speaker 4: In fact, the Department of Justice went out of its
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Speaker 4: way to say that the prosecutors who brought this case
4:53
Speaker 4: did not do anything wrong, They did not question the
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Speaker 4: integrity of the prosecutors bringing the case, and they said
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Speaker 4: that the case would be reevaluate it after the election.
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Speaker 4: So this was, according to the Department of Justice main justice,
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Speaker 4: not a decision based on the merits of the case
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Speaker 4: or the legal theory upon which this prostitution was brought.
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Speaker 4: The decision was made to sophistic case at this time
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Speaker 4: because of the fact that it would interfere with the
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Speaker 4: election and that it would in some way impede the
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Speaker 4: mayor's ability to continue to act as mayor while he's
5:27
Speaker 4: fighting these charges.
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Speaker 2: Also unusual. Under the terms of the memo, Adams will
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Speaker 2: have to agree in writing that prosecutors are legally allowed
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Speaker 2: to bring the charges again if they decide to after
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Speaker 2: the mayoral election, so the charges would be dismissed without prejudice.
5:47
Speaker 1: Well.
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Speaker 4: In order to effectuate this directive, a couple things have
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Speaker 4: to happen. First of all, the acting US Attorney in
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Speaker 4: the Southern District will have to agree to direct her
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Speaker 4: staff to go to court and to dismiss the case.
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Speaker 4: And it's a dismissal, as you say, without prejudice, which
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Speaker 4: means that the government does have the ability to bring
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Speaker 4: the case again if they want to at some point
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Speaker 4: in the future, and that the defense here would have
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Speaker 4: to agree that it's a dismissal without prejudice, which they
6:16
Speaker 4: clearly will, because a dismissal even without prejudice is better
6:19
Speaker 4: than having the case proceed So the next thing that
6:23
Speaker 4: will have to happen, even after the prosecutors take the
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Speaker 4: case to court and request the dismissal without prejudice, is
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Speaker 4: that it has to go before the judge and the disrecord.
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Speaker 4: Judge has to agree to the basis for this dismissal. Now,
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Speaker 4: the judge could in fact even hold a hearing and
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Speaker 4: make prosecutors put on the records the reason for taking
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Speaker 4: this unusual step and dismissing this case without prejudice at
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Speaker 4: this time and in theory, the judge could reject the
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Speaker 4: motion by the prosecution to dismiss the case without prejudice.
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Speaker 4: But as a practical matter, the judge really can't stop
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Speaker 4: the dismissal from proceeding because of the Department of Justice.
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Speaker 4: Says judge, We're not going to pursue this case this time.
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Speaker 4: There's no one to prosecute the case. Even if the
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Speaker 4: judge believes that the dismissal is ill advised.
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Speaker 2: The task of carrying out the order will fall to
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Speaker 2: Danielle Sassoon, who's the acting US Attorney for the Southern District.
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Speaker 2: She's been at the US Attorney's Office since twenty sixteen
7:21
Speaker 2: as an Assistant US Attorney. She was part of the
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Speaker 2: team that prosecuted Sam Bankman freed, and she'll have to
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Speaker 2: make this decision whether or not to drop the charges,
7:33
Speaker 2: despite the fact that in early January prosecutors had told
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Speaker 2: the court that additional charges would be coming and that
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Speaker 2: investigators had continued to uncover additional criminal conduct by the mayor.
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Speaker 2: But I assume she either drops the charges or she's fired.
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Speaker 5: Well, she's put it in a difficult position, but ultimately
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Speaker 5: I think she has to follow the directive from Nain Justice,
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Speaker 5: from the Acting Deputy Attorney General to dismiss the case
8:03
Speaker 5: because if she doesn't do it, then somebody else will.
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Speaker 5: So ultimately its case is going to be dismissed because
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Speaker 5: that's the directive coming from Washington. The other thing that
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Speaker 5: the memo said in directing the Southern Distric to drop
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Speaker 5: the case was to say that not only are you
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Speaker 5: dismissing the case without prejudice, but also that the Southern
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Speaker 5: District was to take no additional investigative steps at this
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Speaker 5: time again until after the election. So what's interesting here
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Speaker 5: is this.
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Speaker 4: Is not a merit based decision. The Acting Deputy Attorney
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Speaker 4: General made clear that the decision to ask that this
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Speaker 4: case be dismissed at this time has nothing to do
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Speaker 4: with the merits of the case, with the wisdom of
8:43
Speaker 4: bringing it in the first place, with the legal basis
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Speaker 4: upon which these charges are brought. It was being done because,
8:51
Speaker 4: according to the Department of Justice, it was interfering with
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Speaker 4: the election. It was brought nine months before the primary,
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Speaker 4: which is a significant amount of time before the primary.
9:02
Speaker 4: But the case, of course, has extended not only through
9:05
Speaker 4: the primary season but now into the mayoral election itself
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Speaker 4: and will no doubt have some impact on the election. Ironically,
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Speaker 4: the dismissal of this case may also have an impact
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Speaker 4: on the election, because I think we will see and
9:19
Speaker 4: have already begun to see, that those who are challenging
9:22
Speaker 4: Mayor Adams are using this dismissal as a way of
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Speaker 4: arguing that he is now beholding to the Trump administration,
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Speaker 4: and some of them have actually called for him to
9:31
Speaker 4: resign under the circumstances. So ironically, a decision that was
9:36
Speaker 4: made in order to try to remove political influence from
9:41
Speaker 4: the election is at the same time also injecting an
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Speaker 4: air of political influence into the election by dismissing the
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Speaker 4: case at this time.
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Speaker 2: For months, Adams has been making overtures to Trump, including
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Speaker 2: flying down tomorrow lago going to his inauguration, and he
9:58
Speaker 2: told top officials this week that they shouldn't criticize the
10:01
Speaker 2: Trump administration or interfere with federal immigration authorities arrests on
10:07
Speaker 2: city property, that's according to the city. And now this
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Speaker 2: threat of renewed prosecution is going to hang over him.
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Speaker 4: Well, certainly that's going to be the argument that's raised
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Speaker 4: by those who are challenging him for the mayor's office
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Speaker 4: in this election. So we will continue to see this
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Speaker 4: issue as something that has an impact on the election,
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Speaker 4: whether the case is dismissed or not, and ultimately it
10:34
Speaker 4: will be up to the voters to decide whether to
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Speaker 4: return may Or Adam's office or not. And after the election,
10:40
Speaker 4: it will be interesting to see whether the Department of
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Speaker 4: Justice ultimately decide to reinstate this case, as they have
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Speaker 4: the ability to do, to file a new indictment and
10:51
Speaker 4: perhaps even bring additional charges.
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Speaker 2: Here the Southern District, it's one of the most prestigious
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Speaker 2: US Attorney's offices in the country, has a reputation for
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Speaker 2: independence from Maine Justice, sometimes referred to as the sovereign
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Speaker 2: district and a history of bringing public corruption cases. What
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Speaker 2: does this memo say about the future of that office
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Speaker 2: under Trump.
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Speaker 4: Well, it's really hard to say exactly where this is headed,
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Speaker 4: and if we will see other instances of Main Justice
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Speaker 4: trying to influence and in fact directing US Attorney's office
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Speaker 4: on whether or not to bring political corruption cases, and
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Speaker 4: after they brought them, whether those cases should be dismissed.
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Speaker 4: As you say, the Southern District of New York has
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Speaker 4: a history of being fiercely independent, even more so than
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Speaker 4: other US Attorney's offices around the country. But as a
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Speaker 4: general rule throughout the years, the Department of Justice has
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Speaker 4: allowed the US Attorneys in the various districts around the
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Speaker 4: country to be fairly independent in making decisions about which
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Speaker 4: cases to bring, an even when it comes to political
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Speaker 4: corruption cases, although those have always historically been elevated to
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Speaker 4: Washington to take a look at those cases before they're brought.
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Speaker 2: It'll be interesting to see what the judge says here.
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Speaker 2: Thanks so much, Bob. That's Robert Mints of maccarter and
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Speaker 2: English coming up next. Will non citizens be able to
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Speaker 2: vote in New York City elections? This is Bloomberg.
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Speaker 6: There is something exceptional about this particular law, right. I mean,
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Speaker 6: this is the argument in the briefs that this is
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Speaker 6: going to expand on both sides. This is going to
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Speaker 6: expand the franchise to a very large number of individuals,
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Speaker 6: may indeed change the political representation in particular districts. Yes,
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Speaker 6: this is not like some other little process.
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Speaker 2: And that exceptional law made New York City the first
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Speaker 2: major US city to grant non citizens the right to
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Speaker 2: vote in municipal elections in January of twenty twenty two.
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Speaker 2: But the law, which was approved by the Democratic led
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Speaker 2: City Council, has never been implemented due to court challenges
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Speaker 2: by Republicans, and both a trial judge and a state
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Speaker 2: depellate court ruled that the law violated the state constitution
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Speaker 2: and a legal requirement to hold a public referendum on
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Speaker 2: the proposal. Today, the seven judges on New York's highest
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Speaker 2: court heard arguments about whether to uphold the law. The
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Speaker 2: arguments focused on how to interpret specific constitutional language and
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Speaker 2: how to define words like citizen.
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Speaker 7: How do you define citizen under the constitutionistics?
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Speaker 6: Now, could the state allow my thirteen year old daughter
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Speaker 6: and other thirteen year olds to vote for governor in
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Speaker 6: the next election. Yes.
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Speaker 2: Joining me is immigration law expert Leon Fresco, a partner
13:46
Speaker 2: at Holland and Knight. He was the head of the
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Speaker 2: Office of Immigration Litigation in the Obama administration. Lee and
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Speaker 2: I just want to start with some basics because we
13:56
Speaker 2: heard Trump claim over and over and over again that
13:59
Speaker 2: not citizens we're voting in elections. So it is clearly
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Speaker 2: illegal for non citizens to vote in federal elections.
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Speaker 1: The rule is that in federal elections, it is illegal
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Speaker 1: for a non citizen to vote. And not only is
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Speaker 1: that a crime and a crime that gets prosecuted every
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Speaker 1: now and then, but it's also a ground for deportation.
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Speaker 1: It's a question that's asked in every immigration form and
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Speaker 1: in every immigration interview that somebody has for an immigration benefit,
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Speaker 1: have you ever unlawfully voted in a federal election. So
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Speaker 1: it's actually quite a serious thing that a person who's
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Speaker 1: not a citizen cannot vote in a federal election.
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Speaker 2: But cities and municipalities can allow non citizens to vote
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Speaker 2: in local elections. More than a dozen communities across the country,
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Speaker 2: including eleven towns in Maryland and Vermont, have allowed non
14:52
Speaker 2: citizens to cast ballots in local elections, they.
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Speaker 1: Have theoretically the authority because elections are a state run
15:01
Speaker 1: thing other than for federal election purposes, and so a
15:06
Speaker 1: state or a locality, if a locality is permitted to
15:09
Speaker 1: do so by a state, can theoretically allow a person
15:14
Speaker 1: who is here who is not a US citizen to
15:17
Speaker 1: vote in their election, and it would just be up
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Speaker 1: to that state or that locality to do so.
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Speaker 2: Se Leon tell us about this New York City law
15:25
Speaker 2: that was passed back in twenty twenty two but never
15:28
Speaker 2: went into effect.
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Speaker 1: So the New York City law that actually came into
15:33
Speaker 1: account says that if you are a lawful permanent resident
15:38
Speaker 1: or even someone with a lawful ability to work in
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Speaker 1: the United States, meaning that you actually have a work
15:44
Speaker 1: permit from US Citizenship and Immigration Services, which is interesting
15:48
Speaker 1: because there are some statuses which are very sort of
15:52
Speaker 1: tenuous statuses like deferred action and temporary protected status, and
15:58
Speaker 1: even you can actually have an order of removal that
16:02
Speaker 1: just can't be executed at the moment because the country
16:06
Speaker 1: that they want to remove you to won't actually accept you.
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Speaker 1: And even those individuals are allowed to get work permits,
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Speaker 1: and so the idea of the new York law is
16:15
Speaker 1: any of those people with work permits, even with such
16:18
Speaker 1: tenuous statuses, would be allowed to vote. Now, a purely
16:22
Speaker 1: undocumented person that is here illegally and has no right
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Speaker 1: to work of any kind would not be allowed to
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Speaker 1: vote under that law.
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Speaker 2: And you just have to be a lawful, permanent resident
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Speaker 2: of the city for thirty days. So Republicans filed the
16:37
Speaker 2: lawsuit to stop the law from going into effect. What
16:41
Speaker 2: are their arguments against the law.
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Speaker 1: So essentially, what they're trying to say is that there
16:47
Speaker 1: are a few problems with the law. First, that the
16:49
Speaker 1: law violates the New York State Constitution, which actually says
16:54
Speaker 1: that citizens are the individuals who are permitted to vote
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Speaker 1: in election. Now, there's fights and we can get into
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Speaker 1: this about whether that meant New York citizens or US
17:04
Speaker 1: citizens and whether that's a floor or a ceiling. But
17:08
Speaker 1: their argument is that if you look at the New
17:10
Speaker 1: York State Constitution, that meant that only US citizens are
17:14
Speaker 1: allowed to vote and nobody else. That's their first argument,
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Speaker 1: and then their second argument is that the actual voting,
17:23
Speaker 1: allowing eight hundred thousand potential more people to vote in
17:27
Speaker 1: the New York City election would actually dilute the right
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Speaker 1: to vote that the US citizens have in New York,
17:34
Speaker 1: which would then violate the municipal home rule laws in
17:38
Speaker 1: New York City.
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Speaker 2: I just want to note the specific language in the
17:42
Speaker 2: state constitution that a lot of the Republican arguments are
17:46
Speaker 2: focused on. It says, quote, every citizen shall be entitled
17:50
Speaker 2: to vote at every election for all officers elected by
17:54
Speaker 2: the people, and upon all questions submitted to the vote
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Speaker 2: of the people. Seems pretty clear every citizen.
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Speaker 1: Right the question that they say. So, there's a couple
18:06
Speaker 1: of areas where the dispute is tried to be created. Here.
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Speaker 1: The first argument is that is a floor of rights,
18:14
Speaker 1: meaning that what the Constitution is saying is, hey, state legislator,
18:21
Speaker 1: hey local legislators, you are not allowed to do anything
18:25
Speaker 1: to diminish the right of a citizen to vote in
18:29
Speaker 1: an election. But that that's not a ceiling, meaning that
18:32
Speaker 1: you can add other people to this from that perspective,
18:36
Speaker 1: so you could add non citizens to this. That's one argument.
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Speaker 1: And so the court in this oral argument was really
18:44
Speaker 1: trying to ask the lawyers, hey, does that mean a
18:47
Speaker 1: twelve year old or a thirteen year old can vote here?
18:50
Speaker 1: Where does this thing, go, I mean, does this really
18:52
Speaker 1: mean what you're saying it means? And the Council for
18:56
Speaker 1: New York City I had to say yes because they
18:59
Speaker 1: wouldn't have had any to say anything else, Which is,
19:01
Speaker 1: if you're arguing that this is a floor, then that
19:04
Speaker 1: means that for a local election, the localities can add
19:08
Speaker 1: people and there's no limit basically to what they could
19:11
Speaker 1: add in that situation. So that's one side. Now the
19:14
Speaker 1: argument for the people opposing that is to say no, no,
19:18
Speaker 1: no, no no. If they wanted other kinds of people to vote,
19:20
Speaker 1: they would have added them within this protection. So this
19:24
Speaker 1: is not a floor. This is actually both the floor
19:26
Speaker 1: and the ceiling, because it's just enumerating the people who
19:29
Speaker 1: can vote. The other argument is because it says citizens
19:34
Speaker 1: and not United States citizens, that this basically refers to
19:39
Speaker 1: a amorphous set of New York citizens who would basically
19:43
Speaker 1: be people who are just in New York for the
19:45
Speaker 1: last thirty days. But I don't think the court was
19:47
Speaker 1: willing to accept that argument, and a very strong argument
19:51
Speaker 1: in favor of not accepting that argument was made by
19:56
Speaker 1: the opponents of this New York law, which said, look,
19:59
Speaker 1: if this really meant New York citizens and not US citizens.
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Speaker 1: And for the last one hundred or so years, there's
20:06
Speaker 1: been people who have been disenfranchised who we've not allowed
20:09
Speaker 1: to vote, who were constitutionally permitted to vote and protected
20:13
Speaker 1: to vote, because we've only been letting US citizens vote
20:16
Speaker 1: this whole time. But if this had really meant New
20:19
Speaker 1: York citizens, then anybody who'd been in New York for
20:21
Speaker 1: a certain period of time would have been allowed to
20:24
Speaker 1: vote too, And we didn't know this, so it can't
20:27
Speaker 1: have meant that.
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Speaker 2: There were also several questions about why isn't this a
20:33
Speaker 2: method that requires a referendum?
20:36
Speaker 1: Well, I think the issue is if you're going to
20:39
Speaker 1: say if this was a problem that the people defending
20:43
Speaker 1: the New York City law were having in this argument
20:45
Speaker 1: was they kept saying, who gets to decide what the
20:48
Speaker 1: word citizen means? And they were saying that either the
20:53
Speaker 1: state legislature could decide it or the city could decide it,
20:56
Speaker 1: And the court was saying, well, can't we decided and
21:00
Speaker 1: aren't we the one who are supposed to make the
21:02
Speaker 1: actual decision about what the words of the constitution mean?
21:05
Speaker 1: And so then there was this debate about, well, maybe
21:08
Speaker 1: you should be put up for the voters. But I
21:10
Speaker 1: think where the court is going to decide here is look,
21:13
Speaker 1: unless the Constitution is amended, which it can always be amended,
21:18
Speaker 1: we are going to decide what the constitution means. And
21:21
Speaker 1: while it is unclear whether they will decide that the
21:25
Speaker 1: constitution sets a floor or whether they will decide that
21:29
Speaker 1: the constitution actually sets a floor and a ceiling, meaning
21:33
Speaker 1: that only the people listed in the constitution are the
21:36
Speaker 1: ones that can vote, meaning citizens, meaning US citizens, which
21:41
Speaker 1: I think seems like it's slightly where they're headed. Nevertheless,
21:45
Speaker 1: I think they are headed there, and they're not going
21:47
Speaker 1: to say that this needs to be decided by a referendum,
21:51
Speaker 1: except to the extent that what they are saying is, look,
21:53
Speaker 1: if you want to change our ruling, have a referendum
21:56
Speaker 1: and decide this, and decide to change the constitution, bea
22:00
Speaker 1: be a referendum.
22:01
Speaker 5: Yeah.
22:01
Speaker 2: I just want to play that interchange because it was
22:05
Speaker 2: kind of amusing where the judges were saying, but that's
22:08
Speaker 2: our role, isn't it.
22:09
Speaker 7: What definition would you ask this court to give? I
22:12
Speaker 7: would say that the legislature is in the best position
22:15
Speaker 7: to define a citizen because it is ambiguous and The
22:18
Speaker 7: reasons why are because.
22:19
Speaker 6: The state how can the legislation legislature do that?
22:22
Speaker 3: This is a constitutional provision.
22:24
Speaker 7: So there's a constitutional provision with an ambiguous term and
22:27
Speaker 7: there's not enough evidence before this court to support a
22:30
Speaker 7: more restrictive or a broader reading.
22:32
Speaker 4: Isn't that our role to determine what this language.
22:35
Speaker 7: Is where there is sufficient evidence to support one reading
22:37
Speaker 7: and otherwise it.
22:38
Speaker 4: Just goes to the legislature to determine what the state
22:40
Speaker 4: constitution means.
22:42
Speaker 7: Well, when the provision is ambiguous and there's not enough evidence,
22:45
Speaker 7: we have.
22:45
Speaker 1: Ever said that because the New York lawyer was saying
22:49
Speaker 1: that it is not up to the court to define
22:51
Speaker 1: what the constitution meant and the court that isn't that
22:54
Speaker 1: our role? Well, I asked, are we here other than
22:56
Speaker 1: to decide what the constitution means? So yes, the like
23:00
Speaker 1: or rather odd argument to make.
23:02
Speaker 2: You don't want to be telling judges their role is superfluous.
23:06
Speaker 2: Stay with me.
23:07
Speaker 5: Leon.
23:07
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
23:09
Speaker 2: this conversation with immigration law expert Leon Fresco. Though it
23:14
Speaker 2: was very hard to read this court from the oral arguments,
23:18
Speaker 2: we'll discuss how they might come out and what their
23:20
Speaker 2: concerns were. I've been talking to immigration law expert Leon
23:26
Speaker 2: Fresco about oral arguments today at New York's highest court
23:30
Speaker 2: over a law passed in twenty twenty two that grants
23:34
Speaker 2: non citizens the right to vote in municipal elections. Leon,
23:38
Speaker 2: the courts below, the District Court and the Appellate Court,
23:42
Speaker 2: ruled against the law tell us about the grounds for
23:44
Speaker 2: their decisions.
23:45
Speaker 1: Well. First, the lowest court found that it violated both
23:49
Speaker 1: the New York state constitutions, the New York State election law,
23:53
Speaker 1: and the municipal home rule law for the reasons that
23:56
Speaker 1: we've already talked about, which said, for the New York
23:58
Speaker 1: State Constitution, those words really only meant US citizens, and
24:04
Speaker 1: there wasn't a floor that could then be added above that.
24:07
Speaker 1: That was both a Florana ceiling that they guaranteed the
24:10
Speaker 1: right to US citizens, And the only reason that that's
24:13
Speaker 1: the only people they guaranteed the right to is because
24:16
Speaker 1: that's the only people they wanted voting. So instead of
24:19
Speaker 1: flor Aana ceiling, the municipal home rule law because of
24:23
Speaker 1: this sense that there would be a dilution in the
24:27
Speaker 1: voter pool, because of the fact that non citizens could
24:31
Speaker 1: potentially make up more than fifteen percent of the electorate
24:34
Speaker 1: in future elections, which would be greater than the margin
24:37
Speaker 1: of victory in many municipal elections. So it would dramatically
24:41
Speaker 1: increase the pool of eligible voters and dilute the votes
24:45
Speaker 1: of US citizens. So that was another route. And then
24:49
Speaker 1: there was also that the New York state election law
24:52
Speaker 1: was violated as well. Now the Court in the intermediate
24:55
Speaker 1: appeals said that the state statue wasn't violated. Still, the
25:00
Speaker 1: municipal home rule law and the New York State Constitution
25:04
Speaker 1: was violated in that case, so they agreed there. That
25:07
Speaker 1: basically comes down to the crux of Look, at the
25:11
Speaker 1: end of the day, the Constitution said that here who
25:15
Speaker 1: Here's who has a guarantee to vote, which is the
25:19
Speaker 1: US citizen. And because of that, that means that that
25:24
Speaker 1: guarantee wouldn't have been given only to US citizens if
25:27
Speaker 1: they had wanted other people to be allowed to vote
25:29
Speaker 1: in that situation.
25:31
Speaker 2: After the oral arguments, do you have any feel for
25:33
Speaker 2: which way the court might go?
25:35
Speaker 1: Yeah, it seems very difficult to try to pin the
25:38
Speaker 1: court down as to where they were headed here. I mean,
25:42
Speaker 1: at the end of the day, there seemed to be
25:44
Speaker 1: at least one judge on each of the sides where
25:48
Speaker 1: it was clear that they had at least one judge
25:50
Speaker 1: that was going to vote in favor of the New
25:52
Speaker 1: York law, and there was one judge who seemed particularly
25:55
Speaker 1: hostile to the New York law. But that leads five
25:58
Speaker 1: other judges, and I really didn't get a good sense
26:02
Speaker 1: of where those five other judges were going to be
26:05
Speaker 1: heading there. I don't think given where the potential implications
26:10
Speaker 1: of this are, which is that if you vote for this,
26:13
Speaker 1: then you're basically leaving the localities to again let twelve
26:17
Speaker 1: year olds vote, and let you know, all kinds of
26:20
Speaker 1: other people vote that wouldn't necessarily be allowed to vote
26:23
Speaker 1: normally in an election that I don't think they're going
26:27
Speaker 1: to want to open up the floodgates in this manner,
26:29
Speaker 1: but we'll have to wait and see.
26:31
Speaker 2: Would you say that it would be more of a
26:33
Speaker 2: novel ruling and they would have to go sort of
26:36
Speaker 2: outside the box to uphol this law. In other words,
26:40
Speaker 2: it would be easier to strike it down correct.
26:43
Speaker 1: You'd have to do much more verbal gymnastics in order
26:46
Speaker 1: to say that the non US citizens could vote in
26:51
Speaker 1: the New York City elections than you would just to
26:54
Speaker 1: affirm the principle that the New York Constitution meant that
26:57
Speaker 1: only US citizens could vote, you would have to make
27:00
Speaker 1: the machination that all of these qualifications that were put
27:04
Speaker 1: in were meant to be a floor, but that localities
27:08
Speaker 1: could add more people. And then the question would be, well,
27:11
Speaker 1: why why would the constitution of the State of New
27:14
Speaker 1: York wanted to have had an ability for state elections
27:19
Speaker 1: to only be US citizens but somehow incorporate this principle
27:24
Speaker 1: that localities could add more kinds of voters that can't
27:27
Speaker 1: vote in the state elections. But there is where I
27:30
Speaker 1: think there really wasn't a good job of trying to
27:33
Speaker 1: explain why would that be? Was that even contemplated, And
27:37
Speaker 1: if it was, why would it have been that they
27:39
Speaker 1: would have wanted different kinds of people or different pools
27:42
Speaker 1: of people voting in the local elections than in the
27:45
Speaker 1: state elections.
27:46
Speaker 2: And for anyone who thought this was going to be
27:48
Speaker 2: kind of a raw, raw argument about why non citizens
27:52
Speaker 2: should be allowed to vote, it was nothing like that.
27:56
Speaker 2: It was so technical. I mean, they were parsing words
27:59
Speaker 2: to talking about the meaning of for example, method correct.
28:03
Speaker 1: I think one they really wanted to avoid the sense
28:07
Speaker 1: that there was any political agenda behind their decision making process.
28:11
Speaker 1: So they really tried to approach this everybody, to their credit,
28:15
Speaker 1: from all the arguments and from all of the justices,
28:18
Speaker 1: to the real of the dictionary and of the interpretation,
28:25
Speaker 1: rather than in the realm of the political and as
28:27
Speaker 1: you know, making equitable arguments about why this is right,
28:31
Speaker 1: you know, why immigrants pay taxes, they should be allowed
28:34
Speaker 1: to mote. None of that really was part of this.
28:37
Speaker 1: And so from that perspective, it's really going to come
28:40
Speaker 1: down to, well, what did the drafters of the New
28:43
Speaker 1: York Constitution actually intend? Which is really what it should
28:47
Speaker 1: come down to at the end of the day, because
28:49
Speaker 1: that's the job of the court is, here's a New
28:51
Speaker 1: York Constitution, here are the words. What did the people
28:55
Speaker 1: who wrote those words intended to mean when they wrote
28:58
Speaker 1: those words? And that's going to come down to it.
29:01
Speaker 1: And I think if you really bring it down to
29:05
Speaker 1: that standpoint, it seems unlikely that they would have intended
29:10
Speaker 1: people who are not US citizens to be able to vote,
29:13
Speaker 1: because at the time this was written, this really wasn't
29:17
Speaker 1: a thing. There wasn't really Yet this process of you
29:20
Speaker 1: came to the country and you got a work permit
29:23
Speaker 1: or a green card or any of that, none of
29:26
Speaker 1: that existed back then. And so all of those are
29:29
Speaker 1: relatively new creations of the last not even one hundred years,
29:33
Speaker 1: of the last seventy years. And so from that perspective,
29:37
Speaker 1: I just find it very hard to believe that they're
29:39
Speaker 1: going to think that this was incorporated somehow at the
29:43
Speaker 1: time of the writing of the New York Constitution.
29:46
Speaker 2: Let's turn out to New York and sanctuary cities. And
29:50
Speaker 2: this has come up more recently because New York City
29:53
Speaker 2: Mayor Eric Adams is being given a pass by the
29:56
Speaker 2: Justice Department, and one of the big reasons, according to
30:00
Speaker 2: to the memo from the Justice Department, was so that
30:02
Speaker 2: he could help the Trump administration enforce immigration laws. And
30:07
Speaker 2: also he apparently has told his staff, his top officials,
30:13
Speaker 2: according to the city publication, he's told them not to
30:17
Speaker 2: criticize the Trump administration and basically not to interfere with ice.
30:22
Speaker 2: I mean, is that how you read what he's been doing?
30:25
Speaker 1: Well. I think that he has certainly expressed a desire
30:29
Speaker 1: to work with the Trump administration. He got a meeting
30:32
Speaker 1: with Tom Holman in New York. Tom Holman was a
30:35
Speaker 1: former New York police officer. He understands the city, he
30:39
Speaker 1: understands the politics. He had a meeting with Mayor Adams.
30:43
Speaker 1: Mayor Adams has certainly expressed, even before Trump was elected president,
30:49
Speaker 1: to be fair, an exasperation with the state of affairs
30:53
Speaker 1: in the city. In the city of New York. Unclear,
30:57
Speaker 1: you know what the motivation was for the prosecution. Obviously,
31:02
Speaker 1: there are three sites to that story there, so I
31:05
Speaker 1: don't want to weigh in on that. Yes, at least
31:07
Speaker 1: three sites to that story, although I will make one
31:10
Speaker 1: personal editors though to say that at the end of
31:12
Speaker 1: the day, I don't know really, you know, in terms
31:16
Speaker 1: of all of the horrible things people have done in life,
31:18
Speaker 1: is what he was accused of doing didn't seem to
31:22
Speaker 1: be one of the more horrific things you've ever heard
31:26
Speaker 1: in the history of humanity. So, at least from that perspective,
31:30
Speaker 1: there was some argument to be made one way or
31:33
Speaker 1: the other about whether this was a useful case to
31:37
Speaker 1: bring forward in the grand scheme of everything that happens
31:41
Speaker 1: in politics. And so from that perspective, if there was
31:46
Speaker 1: a belief that this was going to be the best
31:50
Speaker 1: possible person for this administration to work with with regard
31:56
Speaker 1: to enforcing the laws of the Immigration Court New York City.
32:01
Speaker 1: Then I think from that perspective, baby, an outcome was
32:06
Speaker 1: reached that, at least from the Trump perspective, in the
32:09
Speaker 1: mayor's perspective, made sense. Now, what does that mean for
32:13
Speaker 1: the average undocumented person in New York unclear? Because New
32:18
Speaker 1: York certainly still has sanctuary state laws and sanctuary city
32:24
Speaker 1: laws that do not allow this kind of cooperation where
32:29
Speaker 1: Ice is allowed to go into the jails in New York,
32:32
Speaker 1: or where Ice can put what's called an administrative warrant
32:36
Speaker 1: and say to a state or local jail, hey, just
32:41
Speaker 1: hold this person here for a day or two extra
32:44
Speaker 1: while we get our resources together to come pick them up.
32:47
Speaker 1: New York doesn't currently accept those kinds of requests, and
32:51
Speaker 1: they would still just release people in that situation. And
32:55
Speaker 1: if Ice doesn't get them, well, that's the way it is.
32:58
Speaker 1: And so what will make your atoms do? I think? Basically,
33:02
Speaker 1: the only thing that I think is within his authority
33:05
Speaker 1: if he's not going to be held to account for
33:08
Speaker 1: violating the state laws and the local laws, is to
33:11
Speaker 1: basically say, look where there are operations in place to
33:16
Speaker 1: actually catch people, help them, help the federal officials touch people,
33:21
Speaker 1: you know, you know, don't let people interfere with ices operation,
33:25
Speaker 1: protect the ICE officers, that kind of thing. And I
33:28
Speaker 1: do think at least if the city officials are doing that,
33:32
Speaker 1: that is, from ICE's perspective, more helpful than if they
33:35
Speaker 1: don't have that support.
33:37
Speaker 2: But isn't that against the New York City sanctuary policy?
33:41
Speaker 2: And the way New York has been operating until this
33:45
Speaker 2: point was you know, if an ICE officer comes to
33:49
Speaker 2: a school, let's say, show me your warrant and let
33:52
Speaker 2: me call a lawyer right now. So I mean, isn't
33:54
Speaker 2: that against the sanctuary city laws?
33:58
Speaker 1: So the actual technical sanctuary city policies are twofold. Number one,
34:04
Speaker 1: not to let ICE into the jails of the states
34:07
Speaker 1: and the cities where they could go look for identifying
34:11
Speaker 1: undocumented people or people that could be deported, and not
34:15
Speaker 1: accepting the detainers of ICE saying hey, hold on to
34:20
Speaker 1: this undocument the person while we can come and try
34:23
Speaker 1: to pick them up, so that they would have to
34:25
Speaker 1: actually hold people, So that's part of it. And then
34:29
Speaker 1: also not enforcing the immigration law themselves, meaning the police
34:34
Speaker 1: officers of the state of New York and the cities
34:37
Speaker 1: within New York. They are not allowed to arrest people
34:40
Speaker 1: like you'll see this in some cities around Red States.
34:43
Speaker 1: The local officers will arrest people and then they'll say,
34:46
Speaker 1: you just wait one minute, we're going to call licensee
34:49
Speaker 1: if you're here legally. And the Supreme Court has permitted
34:53
Speaker 1: that in Arizona versus the United States. That was the
34:55
Speaker 1: one thing that was allowed under that case. Everything else
34:59
Speaker 1: was not allowed. But that is allowed, and so New
35:01
Speaker 1: York is not allowed to do that either. But what
35:04
Speaker 1: I was saying they can do is sometimes you go
35:07
Speaker 1: on some of these enforcement operations and people might be
35:10
Speaker 1: very violent toward the ICE agents, or they might be
35:14
Speaker 1: creating a commotion or a scene or something like that.
35:17
Speaker 1: And so the New York law enforcement officers can protect
35:20
Speaker 1: the ICE officers in that situation, or they can, you know,
35:25
Speaker 1: say hey, we're not gonna we're not gonna intervene here
35:28
Speaker 1: in a way that helps the local people avoid deportations.
35:33
Speaker 1: So let's say a school calls the police and says, hey,
35:36
Speaker 1: get these ICE people out of here. They're not going
35:38
Speaker 1: to do that. That kind of thing.
35:40
Speaker 2: We'll have to see how it all plays out, at
35:42
Speaker 2: least in New York City. Thanks so much, Leon. As always,
35:46
Speaker 2: that's immigration law expert Leon Fresco of Honda Night. And
35:50
Speaker 2: that's it for this edition of The Bloomberg Law Show.
35:52
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35:55
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36:11
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