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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 1: The smiling face of the six year old boy who

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Speaker 1: disappeared on his way to school stared back from countless

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Speaker 1: milk cartons in the nineteen eighties. The disappearance of Eton

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Speaker 1: Pates in New York City in nineteen seventy nine was

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Speaker 1: one of the nation's most notorious missing child cases. There

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Speaker 1: was a decade's long, haunting search for answers to his

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Speaker 1: disappearance that put a national focus on missing children, made

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Speaker 1: anxious parents more protective of their children, and changed the

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Speaker 1: way law enforcement handled missing children cases. And then, more

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Speaker 1: than thirty years after his disappearance, police arrested Pedro Hernandez,

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Speaker 1: who worked at a convenience store in Eton's neighborhood. Hernandez confessed,

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Speaker 1: and after one jury deadlocked, a second jury convicted Hernandez

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Speaker 1: of murder and kidnapping.

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Speaker 2: I needed to know what happened to my son, and

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Speaker 2: this great prosecution team finally proved it.

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Speaker 1: And now, forty six years after Eton Pates's disappearance, a

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Speaker 1: New York federal appeals court has resurrected the case. The

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Speaker 1: second Circuit has reversed Hernandez's conviction and ordered that he

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Speaker 1: be given a new trial or released, saying the trial

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Speaker 1: judge gave clearly wrong instructions to the jury. The Manhattan

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Speaker 1: District Attorney, Alvin Bragg will make the decision about whether

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Speaker 1: to retry Hernandez or let him go free. My guest

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Speaker 1: is Paul Callen, a former New York City prosecutor and

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Speaker 1: criminal defense attorney. He's now of counsel at Edelman and Edelman.

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Speaker 1: Paul eton Pates's disappearance has had reverberations in so many areas.

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Speaker 3: The Eton Pates case has influenced child rearing in America

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Speaker 3: for almost a quarter of a century. Mothers don't let

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Speaker 3: their kids go to school if they're in the first

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Speaker 3: grade unless they're accompanied. Helicopter parenting. I think came along

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Speaker 3: in a large degree because of the fear that's something

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Speaker 3: like what happened to Eton Pates would happen to a child.

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Speaker 3: So it's had a big influence this case on child

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Speaker 3: rearing in the United States.

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Speaker 1: He was one of the first missing children to be

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Speaker 1: on milk cartons.

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Speaker 3: Yes he was, and I think a whole generation of

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Speaker 3: kids probably grew up seeing him on the side of

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Speaker 3: milk carts as they sat having their cheerios in the morning,

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Speaker 3: wondering where eton Pates was and would he ever be found.

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Speaker 3: So the whole country was mesmerized by this case, and

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Speaker 3: I think it's kind of shocking that it got reversed

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Speaker 3: when they finally say they got the guy who did it.

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Speaker 3: And so it's a fascinating case and an interesting case.

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Speaker 1: So his body was never found. As I understand it,

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Speaker 1: there's no physical evidence that links Hernandez to the crime.

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Speaker 1: Was it all based on a confession?

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Speaker 3: Yeah, there was no physical evidence whatsoever. And there literally

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Speaker 3: were thousands of detective hours and FBI hours devoted to

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Speaker 3: searching for his body. They even had cadaver sniffing dogs

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Speaker 3: that went into basements in the area where he disappeared,

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Speaker 3: but they were never able to come up with a

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Speaker 3: piece of physical evidence. This is a case based entirely

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Speaker 3: on a confession.

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Speaker 1: And the appeals court reversal is all about the confession.

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Speaker 1: So tell us about that.

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Speaker 3: Yes, and remember this is the second trial that he

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Speaker 3: was convicted at. At the first trial, the jury also

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Speaker 3: in that case had a problem with the confession and

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Speaker 3: there was a single holdout and it resulted in a

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Speaker 3: hung jury, and then the Manhattandia decided to retry the case,

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Speaker 3: and so now we're in the second trial. And during

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Speaker 3: that second trial, the jury's having major problems with the confession.

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Speaker 3: And this is the reason they're having a big problem

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Speaker 3: with the confession. When he confessedes Pedro Hernandez confesses he's

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Speaker 3: in New Jersey. He's in Camden, New Jersey, and New

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Speaker 3: York detectives go to New Jersey and they put him

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Speaker 3: in an eight by ten foot room with no windows

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Speaker 3: in it, and they begin to ask him questions about

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Speaker 3: the disappearance of the Eton Pates. They did this because

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Speaker 3: they got a tip from one of his family members

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Speaker 3: that maybe he was involved in the disappearance of the

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Speaker 3: pates in nineteen seventy nine. And he's questioned intensively by

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Speaker 3: New York City detectives without Miranda warnings for a period

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Speaker 3: of approximately six hours. And during that time period they

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Speaker 3: even bring him drugs because he said he had left

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Speaker 3: his medications at home, and they send the detective to

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Speaker 3: his house to pick up a bottle of pills along

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Speaker 3: with fentanyl patches, and a fentanyl patch is put on

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Speaker 3: him as well as he's allowed to take the pills,

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Speaker 3: and the confession continues. There's a camera mounted in the

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Speaker 3: ceiling of the eight by ten foot windowless room, and

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Speaker 3: there's apparently a Manhattan Assiste District attorney watching the questioning

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Speaker 3: from a remote location, and at the very end of

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Speaker 3: that time period, he confesses to having killed Eton Pates,

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Speaker 3: putting his body in a garbage bag and then throwing

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Speaker 3: it in the trash. And he says that he encountered

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Speaker 3: Pates outside of a bodega that he Hernandez worked at

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Speaker 3: or for the Masota, and brought him inside and murdered him.

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Speaker 3: The confession then is repeated later on when he's brought

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Speaker 3: back to Manhattan to the assistant district attorney that in

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Speaker 3: fact was watching remotely when the first confession was given,

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Speaker 3: and this time he's given his Miranda warnings. At the

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Speaker 3: time of the initial confession, he's never given Miranda warnings

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Speaker 3: by the police. They say he was not in custody,

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Speaker 3: despite the fact that he's in an eight x ten

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Speaker 3: windowless room for six hours being questioned by a team

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Speaker 3: of detectives. So problems with those confessions are the central

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Speaker 3: reason that the United States Federal Court has reversed the

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Speaker 3: conviction liberations.

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Speaker 1: The jurors sent out a note to the judge asking

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Speaker 1: whether they should disregard the later recorded confessions if they

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Speaker 1: found that his first confession off camera wasn't voluntary, And

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Speaker 1: the Second Circuit said, the judge gave them the wrong answer.

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Speaker 3: Yes, that's exactly correct. What the note said was, if

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Speaker 3: we find that the initial confession that was given in

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Speaker 3: New Jersey was not voluntary, can we still consider the

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Speaker 3: subsequent confessions that were made when he was brought back

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Speaker 3: to New York. And essentially the court said, yes, you

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Speaker 3: can consider the subsequent confessions. So they went on then

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Speaker 3: to look at the subsequent confessions which occurred after Miranda warnings,

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Speaker 3: and he incriminated himself in those confessions as well. So

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Speaker 3: the conviction was based on those confessions.

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Speaker 1: And why did the Second Circuit conclude that the judge's

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Speaker 1: answer or decision was wrong.

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Speaker 3: Well, there's a case called Missouri is Sebird that is

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Speaker 3: the central case that the court refers to. And back

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Speaker 3: when the Miranda decision came down, the cops had come

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Speaker 3: up with a workaround. And here's the workaround. Let's take

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Speaker 3: the person into custody and get a confession out of

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Speaker 3: the person and then give him Miranda warnings and ask

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Speaker 3: him to just repeat what he had said in the

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Speaker 3: initial confession. And this became a widespread technique that was

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Speaker 3: used across the country. Eventually, the federal courts had to

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Speaker 3: step in, including the Supreme Court, to say, no, this

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Speaker 3: is completely improper. You can't do a confession without Miranda

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Speaker 3: warnings and then subsequently give the warnings and ask the

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Speaker 3: person to repeat what you just said. And that's this

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Speaker 3: Missouri versus Sibird case. And the Circuit Court here Second

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Speaker 3: Circuit said no, they ignored that case. They didn't rule

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Speaker 3: properly on that case. There wasn't a significant what they

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Speaker 3: call attenuation between the initial confession which had no Miranda

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Speaker 3: warnings and the subsequent confessions when the Miranda warnings were given.

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Speaker 3: The Seber case basically says that there has to be

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Speaker 3: an attenuation of a distance between the two interrogations if

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Speaker 3: you're going to just administer the Miranda warnings belatedly. So

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Speaker 3: that wasn't done in this case, and for that reason

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Speaker 3: the conviction was overturned.

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Speaker 1: I'm just curious about in real life, so we hear

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Speaker 1: the Miranda warnings in TV shows and movies over and

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Speaker 1: over again. Most people can recite them. Does it really

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Speaker 1: make a difference to someone in custody if they hear

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Speaker 1: those Miranda warnings?

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Speaker 3: To tell you the truth, June, I don't think so.

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Speaker 3: And you know, when I started out my career as

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Speaker 3: an assistant district attorney in New York City, we used

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Speaker 3: to ride homicide cases, meaning we would go out to

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Speaker 3: the scene of the crime and administer Miranda warnings to

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Speaker 3: the suspect. We had a stenographer with us and it

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Speaker 3: would all be taken down, but frankly, we didn't know

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Speaker 3: what went on, what really went on before we got there.

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Speaker 3: Now the police would say we administered warnings to him

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Speaker 3: before the DA arrived and took the formal statement, but

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Speaker 3: who knows what went on. I mean, it's only the

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Speaker 3: police in the room with the suspect, and the atmosphere

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Speaker 3: is very different before the lawyer arrives on the scene.

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Speaker 3: But my experience was that the Miranda warnings had become

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Speaker 3: so pro forma and all of the potential defendants in

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Speaker 3: criminal cases know the Miranda warnings, so they're not getting

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Speaker 3: any new information, and if their intent on confessing, they

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Speaker 3: confess without asking for a lawyer. You know, it's really

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Speaker 3: only the sort of educated professionals and mobsters who ask

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Speaker 3: for lawyers, not day to day violent criminals.

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Speaker 1: So now the second Circuit said that either free Hernandez

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Speaker 1: or put him on trial for a third time within

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Speaker 1: a quote reasonable period. Talk about the obstacles of trying

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Speaker 1: him again, Well.

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Speaker 3: They're going to be up against exactly the same obstacles

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Speaker 3: as the first time around, because when I looked into

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Speaker 3: the record of this case, remember this Appellet decision that

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Speaker 3: was issued by the federal courts, fifty one pages in length.

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Speaker 3: They recount in detail all of the strange things that

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Speaker 3: happened during this interrogation. He was found by several experts

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Speaker 3: to be a schizophrenic suffering from bipolar disease who was

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Speaker 3: also using fentanyl and other drugs. This is all taking

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Speaker 3: place when he's being interrogated, by the way that he

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Speaker 3: was suffering from these conditions and using the drugs which

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Speaker 3: were supplied by the police. So in the absence of

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Speaker 3: new evidence that would physically link him to the crime,

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Speaker 3: I think you're very much in a situation. Will you

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Speaker 3: be looking at another hung jury or maybe even an

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Speaker 3: acquittal on a retrial Now, the DA in the last

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Speaker 3: case was Cyrus Vance, who decided to proceed with this case.

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Speaker 3: And you have a new DA now, Alvin Bragg. And

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Speaker 3: I'm not so sure that Alvin Bragg's going to want

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Speaker 3: to get involved in the Eton Pates case just because

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Speaker 3: of the problems with the evidence and something else. There

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Speaker 3: were at least two other suspects who were child abusers,

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Speaker 3: who were thought to be in the vicinity of the

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Speaker 3: crime and who were intensively investigated, and with the exception

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Speaker 3: of the confession, the case against them was as strong

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Speaker 3: as the case is against Hernandez. So I'm doubting that

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Speaker 3: he will get retried. But of course there might be

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Speaker 3: a public outcry. So it's always hard to decide by

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Speaker 3: a DA whether to proceed or not in such a

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Speaker 3: high profile case.

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Speaker 1: This is such a high profile case and a lot

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Speaker 1: of people will be dismayed if Hernandez just walks out

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Speaker 1: of prison. That's something that the DA has to consider too.

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Speaker 3: Yes, I agree with you completely. There there'll be public

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Speaker 3: outrage if Hernandez is allowed to walk. And you know, frankly,

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Speaker 3: when you're a DA also you're saying, my god, will

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Speaker 3: I be releasing a child molestor and murderer who might

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Speaker 3: in fact hurt other people. Maybe it's worth another try

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Speaker 3: to try him again, But I think really they're going

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Speaker 3: to be up against a very, very difficult situation if

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Speaker 3: they attempt to retry this case.

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Speaker 1: And Paul, how unusual is it for a federal appellate

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Speaker 1: court to reverse a state court proceeding. I mean, this

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Speaker 1: was a petition for a habeas relief.

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Speaker 3: It's very, very unusual for it to happen. And the

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Speaker 3: reason for that is that these cases, before they get

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Speaker 3: to federal court, they've usually been looked at by at

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Speaker 3: least two other appellate court levels. On the state court

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Speaker 3: in New York, you'd go to the Appellate Division, and

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Speaker 3: you'd go to the Court of Appeals. And by the

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Speaker 3: time you bring a habeas action, which is what it's

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Speaker 3: called when the Feds get involved in looking at a

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Speaker 3: state case for constitutional violations, you've got a record that's

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Speaker 3: been carefully examined by a lot of judges who have

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Speaker 3: found that the trial was fair and there were no

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Speaker 3: constitutional violations. And the standard for a habeas relief is

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Speaker 3: very very high. You have to show you that there

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Speaker 3: was absolutely no reason to support the state's determination not

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Speaker 3: to set aside the conviction. There's a very very high

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Speaker 3: standard displaced on the defendant to prove his innocence in

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Speaker 3: a federal habeast action. So it's very rare that you

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Speaker 3: win this kind of relief, especially in a high profile case.

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Speaker 1: And this stunning appeals court reversal came just over a

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Speaker 1: year after another high profile case tried during Cyrus Vance's

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Speaker 1: tenure was also reversed on appeal in another stunning decision,

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Speaker 1: and that was the Harvey Weinstein case, when an appeals

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Speaker 1: court found that the trial judge there shouldn't have allowed

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Speaker 1: prosecutors to call witnesses who accused Weinstein of sexual abuse

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Speaker 1: in incidents that were not part of the charges.

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Speaker 3: You have to say that these judges in New York

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Speaker 3: have been quite brave. You have the Harvey Weinstein case,

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Speaker 3: which burned up the headlines across the country when he

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Speaker 3: was convicted, and they reversed his conviction, and now, of

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Speaker 3: course you have this case. Eton Pates is the poster

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Speaker 3: child of you know, a child being kidnapped and abused,

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Speaker 3: and for the appellate court to have reversed both of

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Speaker 3: these cases is a very brave move. By those courts,

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Speaker 3: and I think it's a tribute to them that they

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Speaker 3: were carefully applying the law as it is, despite the

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Speaker 3: fact that they're probably going to be criticized publicly for

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Speaker 3: having done so. But I think, you know, the evidence

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Speaker 3: was clear in this case, and I also think in

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Speaker 3: the Weinstein case that a reversal probably was in order.

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Speaker 3: Now maybe a retrial is in order too, if they

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Speaker 3: got the right person. But it was a brave move

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Speaker 3: by these judges to reverse.

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Speaker 1: And the DA did retry Harvey Weinstein, which resulted in

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Speaker 1: a mixed verdict. So we'll see if he decides to

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Speaker 1: retry Hernandez. Thanks so much for joining me.

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Speaker 2: Paul.

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Speaker 1: That's former New York prosecutor Paul Callan. President Donald Trump

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Speaker 1: has been very open about his plans to use redistricting

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Speaker 1: to help Republicans retain control of the House in the

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Speaker 1: twenty twenty six midterm elections. Trump said last week that

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Speaker 1: he'd spoken with Republican lawmakers in Texas and that redrawing

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Speaker 1: the state's congressional map in favor of the GOP would

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Speaker 1: add as many as five seats for the party.

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Speaker 2: It's a very simple redrawing.

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Speaker 3: We pick up five seats, but we have a couple

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Speaker 3: of other states where we'll pick up seats.

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Speaker 1: Also days later, when Governor Greg Abbott announced his agenda

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Speaker 1: for the legislature's special session that started on Monday, redistricting

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Speaker 1: was on the list. In the hopes of countering Trump's

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Speaker 1: strategy in Texas, House Minority Leader Hakim Jeffries is reportedly

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Speaker 1: exploring the possibility of redrawing house maps in the Democratic

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Speaker 1: controlled states of California, New York, New Jersey, Minnesota, and Washington.

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Speaker 4: Donald Trump, House Republicans here in Washington and Governor Abbott

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Speaker 4: are conspiring to rig the Texas congressional map as part

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Speaker 4: of an effort to disenfranchise millions of people in Texas.

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Speaker 1: Join me is Elections law expert Richard Brofald, a professor

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Speaker 1: at Columbia Law School. Rich start by explaining the difference

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Speaker 1: between redistricting and gerrymandering.

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Speaker 2: Sure, so, resistricting and jerry mandering refruit of the same thing,

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Speaker 2: But jerrymandering is a kind of negative way or a

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Speaker 2: critical way of describing it when it's being driven by

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Speaker 2: partisan purposes. So most of you know congressional delegations and

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Speaker 2: state legislatures are divided up into districts in every ten years.

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Speaker 2: They have to be redistricted based on population. As population

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Speaker 2: moves around, as some areas gain and some areas lose.

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Speaker 2: The Constitution requires, as interpreted by the Supreme Court, requires

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Speaker 2: that districts be a relatively equal population, So usually every

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Speaker 2: ten years, usually around the year ending in one or

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Speaker 2: year ending in two following the census, states redistricts. That's redistricting.

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Speaker 2: Gerrymandering is a negative term we use when we say

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Speaker 2: that the districting plan was driven by partisan political purposes.

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Speaker 2: There are many different ways of creating a state a

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Speaker 2: bunch of equal sized districts, but some of them can

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Speaker 2: be done in a way that favors one party over

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Speaker 2: the other. The party in charge can do it in

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Speaker 2: a way that breaks up areas that the other party

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Speaker 2: has and splits them up into multiple districts so they

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Speaker 2: can never control anything, or that's called cracking. So they

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Speaker 2: could also do the opposite, called packing, and put every

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Speaker 2: member of the minority party in one district, so that

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Speaker 2: they overwhelmingly dominate one district and have no voice anywhere else.

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Speaker 2: And so gerry mannering is a phenomenon of drawing district

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Speaker 2: lines in a way that produces districts of equal population

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Speaker 2: but unduly favors one party over the other. Thus, a

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Speaker 2: majority party gets not just a majority of the seats,

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Speaker 2: but a much bigger majority than their share of the vote,

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Speaker 2: which would require in fairness. So that's the difference.

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Speaker 1: Donald Trump has called for Republicans in several states to

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Speaker 1: redraw their congressional maps to help give Republicans an even

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Speaker 1: bigger advantage in the midterms. As you mentioned, you know,

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Speaker 1: they usually do it every ten years. How unusual is

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Speaker 1: it to be doing it at this time.

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Speaker 2: This kind of what might be called mid cycle registioning

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Speaker 2: is very unusual. It's not that it's never happened before.

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Speaker 2: It has sometimes happened. Although it's unusual, it happens sometimes.

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Speaker 2: It happens when a new party takes over state legislature

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Speaker 2: that they hadn't had at the beginning of the decade.

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Speaker 2: Here is actually talking to states where the Republicans were

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Speaker 2: already in charge of doing the districting in twenty twenty

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Speaker 2: one and saying, well, I want you to do it

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Speaker 2: even more so now. And it's very rare that it's

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Speaker 2: being gone for so kind of late nakedly partisan purposes.

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Speaker 2: There usually has some justification for it, but this time,

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Speaker 2: I mean it's being announced as purely partisan. It's purely gerrymandering,

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Speaker 2: rather than any claim that there was a kind of

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Speaker 2: a problem of representation with the older districts.

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Speaker 1: And the Supreme Court has said partisan jerry mandering is okay,

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Speaker 1: racial jerry mandering is not.

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Speaker 2: That's correct. I mean, I guess technically what they have

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Speaker 2: said is that partisan jerry mandering is not unconstitutional. They

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Speaker 2: don't endorse it, but they have said that there's nothing

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Speaker 2: the federal courts can do about it. Racial gerrymandering districting

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Speaker 2: designed to help one race over another. That does raise

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Speaker 2: a constitutional concern, but race and party are often very

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Speaker 2: closely intertwined, and in their most recent cases, the courts

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Speaker 2: basically said, if the state says it's partisan, because partisan

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Speaker 2: is constitutional, we're going to defer them. We're going to

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Speaker 2: put a very heavy burden of proof on the other side,

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Speaker 2: challenging it to show that it's not partisan, it's racial.

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Speaker 2: And here, at least what's going on in Texas, the

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Speaker 2: announcement is so clearly that it's partisan, and it seems

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Speaker 2: to be that that I think it would be very

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Speaker 2: hard to show that even if there's a racial component

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Speaker 2: to it, it'd be very hard to show that it

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Speaker 2: wasn't primarily partisan.

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Speaker 1: Republican Texas Governor Greg Abbott put redistricting on the list

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Speaker 1: for this special session that start on Monday, right. He

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Speaker 1: said his decision was because of a letter he received

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Speaker 1: from the Department of Justice earlier this month that alleges

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Speaker 1: that four of the current districts were racial gerrymanders that

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Speaker 1: violate the fourteenth Amendment. I mean, was that letter pretextual?

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Speaker 1: Does it make any sense?

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Speaker 2: It sure seems that way. I mean, these districts were

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Speaker 2: adopted two years ago, and they were designed to provide

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Speaker 2: representation for minority groups, I think for for African Americans

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Speaker 2: and Latinos. I think they were primarily Latino districts. The

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Speaker 2: Constitution does not forbid that in the Voting Rights Act. Actually,

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Speaker 2: if it doesn't require that, at least it promotes that

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Speaker 2: idea representation for minorities. So no one has ever challenged

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Speaker 2: those districts. And basically the current view in the current

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Speaker 2: administration seems to view that anything that even thinks about

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Speaker 2: race is unconstitutional. That's not been the standard until now.

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Speaker 2: The Supreme court standard is that race can be taken

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Speaker 2: into account in districting, it just can't be the overwhelming factor,

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Speaker 2: the predominant factor. And I think you would have to

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Speaker 2: show that these districts, of course did help create minority representation,

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Speaker 2: but that you would have to show that that was

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Speaker 2: the overwhelming factor as opposed to other factors, including respect

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Speaker 2: for political subdivision mindes following the course of pre existing districts.

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Speaker 2: It does seem as though this was designed purely to

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Speaker 2: give a justification for a re redistricting. But the state

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Speaker 2: is not anyone going to court and suing. No one

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Speaker 2: has gone to court to sue to challenge those districts.

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Speaker 2: If anything, there was another lawsuit that was brought from

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Speaker 2: the other perspective saying that some other districts in Texas

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Speaker 2: violated the voting right fact in terms of limiting an representation,

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Speaker 2: and the state had been defending them as saying that

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Speaker 2: the state's districting plan was entirely constitutional. So the state

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Speaker 2: has now kind of flipped its position sort of, you know,

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Speaker 2: moving away from its position that everything is fine and

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Speaker 2: is now considering redoing the.

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Speaker 3: District coming up next.

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Speaker 1: Can Democrats really retaliate? This is Bloomberg. I've been talking

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Speaker 1: to Columbia law professor Richard Bruffault about Texas Republicans aiming

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Speaker 1: to redraw House districts at President Trump's urging in order

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Speaker 1: to help Republicans retain control of the House in the

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Speaker 1: twenty twenty six mid term elections. Rich this is also

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Speaker 1: risky for Republicans, not just legally but electorally. Texas Democrat

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Speaker 1: Gonzales said, get ready for some pick up opportunities.

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Speaker 2: It depends on exactly what the Republicans do. But I

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Speaker 2: think if what they're going to do, and as I

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Speaker 2: understand it, if they take some districts where Republicans are

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Speaker 2: strong and move some Republican voters into nearby districts currently

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Speaker 2: held by a Democrat but have been trending Republican. I

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Speaker 2: think what happened is that in the twenty twenty four election,

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Speaker 2: a lot of districts that are held by Democrats voted

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Speaker 2: for Trump, and so I think what they're thinking is

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Speaker 2: that they may be able to move some Republican voters

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Speaker 2: from what are clearly Republican districts into districts which have

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Speaker 2: been Democratic districts but night tip Republican with a few

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Speaker 2: more Republican voters. So that's the idea of what I've

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Speaker 2: seen numbers. They think they can find as many as

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Speaker 2: five districts that look like that. What Aurort is getting

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Speaker 2: at is they're risking the possibility that not only won't

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Speaker 2: these districts tip, but by moving Republicans out of the

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Speaker 2: other districts, they risk losing those districts. A lot will

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Speaker 2: turn on what the political climate is next fall in

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Speaker 2: twenty twenty six. If it's a democratic year, that is

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Speaker 2: a real risk. If it's not, then the Republican strategy

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Speaker 2: may work. But you know, at some point, there are

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Speaker 2: only so many Republican and Democratic voters in a state,

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Speaker 2: and the idea is to try and arrange them in

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Speaker 2: such a way to maximize your party's vote. But people

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Speaker 2: don't always vote exactly the same each time, and it

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Speaker 2: could be that some voters switched back and the Republicans

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Speaker 2: did very well in what had been Democratic districts last time,

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Speaker 2: will they do as well next time.

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Speaker 1: Three of the districts that the Republicans want to tinker

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Speaker 1: with are represented by black and Latino lawmakers in Houston

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Speaker 1: and Dallas. Reportedly, the White House is preparing a map

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Speaker 1: that splits those coalitions, So would there be a possible

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Speaker 1: legal challenge there, even though difficult.

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Speaker 2: Well, one question again is the status of a so

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Speaker 2: called coalition. Until recently, many courts upheld the idea that

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Speaker 2: Minori groups can affect band together and say that we're

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Speaker 2: discriminated against together by the way the district lines are Troy.

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Speaker 2: There have now been some court decisions that are be

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Speaker 2: able to challenge the idea that you could have and

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Speaker 2: affect a lawsuit brought by African American and Hispanic coalition

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Speaker 2: that has to be either one or the other. So

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Speaker 2: that would be a question as to whether or not,

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Speaker 2: you know, the so called coalition is a group that

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Speaker 2: has standing to bring a claim. Those coalition cases have

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Speaker 2: been broad, but now I think more questions have been

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Speaker 2: raised about them.

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Speaker 1: There's also a risk of retaliation. Minority leader Hakim Jeffries

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00:25:22,480 --> 00:25:27,960
Speaker 1: is reportedly exploring the possibility of redrawing house maps in California,

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Speaker 1: New York, New Jersey, Minnesota, and Washington and California Governor

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00:25:32,240 --> 00:25:35,719
Speaker 1: Gavin Newsom has been pretty blunt about saying we're going

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00:25:35,760 --> 00:25:39,640
Speaker 1: to redistrict here in California. Then he said special sessions,

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00:25:39,680 --> 00:25:44,119
Speaker 1: special elections, ballot initiatives, new laws. It's all on the

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00:25:44,160 --> 00:25:47,239
Speaker 1: table when democracy is on the line. They have an

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Speaker 1: independent commission in California, right.

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Speaker 2: I think it would be very hard to do this

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00:25:51,040 --> 00:25:55,040
Speaker 2: in California because, as is implied from Newsom's statement, they

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00:25:55,040 --> 00:25:59,080
Speaker 2: have a constitutional amendment that governs how redistricting is done.

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00:25:59,240 --> 00:26:02,720
Speaker 2: They would baseic we have to either supersede that amendment

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00:26:03,080 --> 00:26:06,120
Speaker 2: with a new amendment that either forever for one time

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00:26:06,200 --> 00:26:09,440
Speaker 2: only it would change the distressing process. That's really hard.

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00:26:09,760 --> 00:26:11,399
Speaker 2: I mean, I think they'd have to get the measure

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00:26:11,480 --> 00:26:14,159
Speaker 2: of something through the legislature and to the voters, and

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00:26:14,200 --> 00:26:16,880
Speaker 2: then the voters would have to approve that, and then

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00:26:16,920 --> 00:26:18,480
Speaker 2: they'd have to go and then write a new plan.

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Speaker 2: And you know, that's a that's a big lift as

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Speaker 2: to whether or not it's they could get a constitutional

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00:26:25,440 --> 00:26:28,920
Speaker 2: amendment to the voters in time this year, and whether

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00:26:28,960 --> 00:26:31,840
Speaker 2: the voters would approve it, I mean, it's also pretty blatant.

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Speaker 2: And although California runs democratic, it's not clear to me

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00:26:34,960 --> 00:26:38,760
Speaker 2: that the voters would approve this. I mean, the might

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Speaker 2: and then of course they'd have to write a plan

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00:26:41,359 --> 00:26:44,159
Speaker 2: in a way that doesn't follow the constitutional pattern they

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00:26:44,200 --> 00:26:45,639
Speaker 2: have there, they have to come up with an entirely

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00:26:45,680 --> 00:26:47,760
Speaker 2: new system. So I guess they'd have to take it

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00:26:47,760 --> 00:26:50,920
Speaker 2: away from the Constitutional Commission and give it to the legislature,

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Speaker 2: either always or this one time. I'm not sure what

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00:26:53,800 --> 00:26:54,639
Speaker 2: the proposal is.

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Speaker 1: And what about redistricting in other Democratic controlled states?

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Speaker 2: Well, again, New York also has adopted a new constitutional

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00:27:04,200 --> 00:27:09,320
Speaker 2: format redistricting, and that I think currently governs. I don't

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00:27:09,359 --> 00:27:11,000
Speaker 2: know about the other states. I think in the other

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00:27:11,080 --> 00:27:14,119
Speaker 2: states it may be possible that the legislature would they

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00:27:14,119 --> 00:27:18,200
Speaker 2: have a democratic legislature and a democratic governor. You mentioned Minnesota.

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00:27:18,200 --> 00:27:22,320
Speaker 2: I think the Minnesota legislature is very closely divided, and

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00:27:22,400 --> 00:27:25,399
Speaker 2: I think a key Democrat is just convicted of a

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00:27:25,440 --> 00:27:27,200
Speaker 2: crime and may have to resign. On which case, it's

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00:27:27,200 --> 00:27:30,040
Speaker 2: not clear. The Democrats have been Minnesota legislature. So you

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00:27:30,080 --> 00:27:32,920
Speaker 2: mentioned Washington state, that might be possible, and you're talking

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00:27:32,920 --> 00:27:34,840
Speaker 2: about picking up maybe one seat. I think in a

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00:27:34,880 --> 00:27:35,400
Speaker 2: place like.

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00:27:35,359 --> 00:27:40,240
Speaker 1: That, I mean, is jerry mandering getting worse in recent years?

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00:27:40,440 --> 00:27:41,840
Speaker 1: Parties in jerry mandering?

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00:27:42,560 --> 00:27:46,000
Speaker 2: Oh, absolutely, Basically because the computer power has gotten so

483
00:27:46,080 --> 00:27:49,960
Speaker 2: much better. It has become much easier for computers to

484
00:27:50,040 --> 00:27:54,760
Speaker 2: generate multiple maps hundreds of thousands of maps that all

485
00:27:55,160 --> 00:27:58,960
Speaker 2: comply with one person, one vote and use pre existing

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00:27:59,080 --> 00:28:02,040
Speaker 2: voting or voterage stration data to maximize the number of

487
00:28:02,119 --> 00:28:06,960
Speaker 2: Republican or Democratic districts. So it's no longer throwing drawing maps,

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00:28:07,080 --> 00:28:09,200
Speaker 2: you know, taking out big maps and drawing and using

489
00:28:09,240 --> 00:28:11,720
Speaker 2: crayon and drawing on the floor. You can you can

490
00:28:11,800 --> 00:28:16,080
Speaker 2: generate almost an infinite number of maps by programming them

491
00:28:16,119 --> 00:28:20,080
Speaker 2: to respect certain factors and not others. And that's that

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00:28:20,160 --> 00:28:23,160
Speaker 2: makes it incredibly easy. And then we're now the level

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00:28:23,200 --> 00:28:26,640
Speaker 2: of you know, hyperpartisanship legislatures as such that they're also

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00:28:26,720 --> 00:28:29,200
Speaker 2: willing to do it. There's been something of a pushback,

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00:28:29,240 --> 00:28:32,400
Speaker 2: and I mentioned in California and New York have const

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00:28:32,400 --> 00:28:35,359
Speaker 2: social amendments that can try to limitary mandering, and a

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00:28:35,400 --> 00:28:38,560
Speaker 2: handful of other states, either by constcial amendment or by

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00:28:38,640 --> 00:28:43,120
Speaker 2: state Supreme Court decision, there have been limits placed on jerrymandering.

499
00:28:43,160 --> 00:28:51,400
Speaker 2: But where the legislatures are not limited, they have kind

500
00:28:51,400 --> 00:28:55,080
Speaker 2: of infinite capacity to come up with maps that will

501
00:28:55,400 --> 00:28:58,520
Speaker 2: do as much as possible to maximize the power of

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00:28:58,560 --> 00:29:00,240
Speaker 2: the of the party in power.

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00:29:00,280 --> 00:29:02,920
Speaker 1: And it seems like the democratic states are the ones

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00:29:03,000 --> 00:29:08,400
Speaker 1: with those independent commissions, etc. Whereas the Republican states are

505
00:29:08,440 --> 00:29:11,400
Speaker 1: still mostly relying on their legislatures.

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00:29:11,840 --> 00:29:15,120
Speaker 2: Yeah, I think there is some control in but I

507
00:29:15,160 --> 00:29:18,000
Speaker 2: think it's relatively limited, which you're right. In Arizona, which

508
00:29:18,000 --> 00:29:21,200
Speaker 2: I guess is a purple state, has a commission. But

509
00:29:21,360 --> 00:29:24,280
Speaker 2: I think you know, we're talking about California, New York,

510
00:29:24,440 --> 00:29:28,800
Speaker 2: New Jersey, and then court decisions. I think Pennsylvania, maybe

511
00:29:28,800 --> 00:29:31,880
Speaker 2: now Wisconsin. I'm not quite sure where thinks standard was consiable.

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Speaker 1: I think this topic is pretty depressing because how do

513
00:29:35,920 --> 00:29:40,480
Speaker 1: you take control away from the party in control, even

514
00:29:40,560 --> 00:29:44,880
Speaker 1: if you have more people voting with the minority party.

515
00:29:45,360 --> 00:29:48,800
Speaker 1: If the party in control can redistrict in these ways,

516
00:29:49,280 --> 00:29:49,720
Speaker 1: I mean.

517
00:29:49,600 --> 00:29:52,840
Speaker 2: The main thing, of course, would be just a surgeon

518
00:29:52,920 --> 00:29:56,760
Speaker 2: voting in the opposite direction, and that sometimes happens. But

519
00:29:56,800 --> 00:30:00,160
Speaker 2: you're right, if the party in power is locked in

520
00:30:00,240 --> 00:30:04,560
Speaker 2: with a super majority, even if the minority party wins.

521
00:30:04,600 --> 00:30:07,400
Speaker 2: The governorship has often happened to some of these states

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00:30:07,560 --> 00:30:10,240
Speaker 2: where you have a publican legislature and a democratic governor.

523
00:30:10,520 --> 00:30:14,040
Speaker 2: I think describes Wisconsin, for example. The governor can block

524
00:30:14,160 --> 00:30:16,640
Speaker 2: some things, but the governor can't really force anything to happen,

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00:30:16,840 --> 00:30:18,560
Speaker 2: So no you're right. This is the problem. This is

526
00:30:18,600 --> 00:30:22,120
Speaker 2: why you know sixty years ago the Supreme Court interviewed

527
00:30:22,160 --> 00:30:24,600
Speaker 2: with one person, one vote because the States couldn't fix it.

528
00:30:25,000 --> 00:30:27,080
Speaker 2: And this is why so many people are unhappy that

529
00:30:27,160 --> 00:30:30,240
Speaker 2: the Supreme Court, now it's about six years ago, said

530
00:30:30,240 --> 00:30:32,640
Speaker 2: we're not going to interfere with parties and Jerry Mandarin.

531
00:30:33,080 --> 00:30:36,080
Speaker 2: It makes it very hard to undo a Jerry manner.

532
00:30:36,120 --> 00:30:38,840
Speaker 2: If it's successful, it's very hard to undo. The only

533
00:30:38,880 --> 00:30:41,880
Speaker 2: possibility we won't know about will happen in Texas until

534
00:30:41,880 --> 00:30:45,440
Speaker 2: the next November. It's the party in power gets too

535
00:30:45,480 --> 00:30:49,120
Speaker 2: greedy and spreads itself too thin and then loses seats.

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00:30:48,880 --> 00:30:51,959
Speaker 2: That would be the come upance. But we don't know

537
00:30:52,080 --> 00:30:53,520
Speaker 2: what's going to happen right now.

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00:30:53,640 --> 00:30:57,400
Speaker 1: No, it all seems pretty amorphous. Thanks so much, rich

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00:30:57,760 --> 00:31:01,400
Speaker 1: That's Professor Richard Raffault of Columbia Law School, and that's

540
00:31:01,440 --> 00:31:04,040
Speaker 1: it for this edition of The Bloomberg Law Show. Remember

541
00:31:04,080 --> 00:31:06,200
Speaker 1: you can always get the latest legal news on our

542
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Speaker 1: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

543
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Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,

544
00:31:16,000 --> 00:31:18,560
Speaker 1: and remember to tune into the Bloomberg Law Show every

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00:31:18,640 --> 00:31:22,520
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg