1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,039 --> 00:00:11,600 Speaker 1: This week, the first criminal charge is to emerge from 3 00:00:11,600 --> 00:00:15,200 Speaker 1: the investigation of former President Donald Trump and his business dealings. 4 00:00:15,560 --> 00:00:19,520 Speaker 1: Manhattan District Attorney Cyrus Vance charged the Trump Organization and 5 00:00:19,560 --> 00:00:24,640 Speaker 1: it's longtime CFO Allen Weiselberg, with fifteen felony counts, including 6 00:00:24,680 --> 00:00:29,880 Speaker 1: tax fraud, conspiracy, and falsifying business records. Wislberg also faces 7 00:00:29,880 --> 00:00:33,600 Speaker 1: a grand larceny count, and former Trump lawyer Michael Cohen 8 00:00:33,720 --> 00:00:37,200 Speaker 1: advised the seventy three year old to flip. Alan should 9 00:00:37,200 --> 00:00:40,680 Speaker 1: be doing is looking to see exactly what happened to me, 10 00:00:40,960 --> 00:00:44,360 Speaker 1: and he knows because he was involved. Both Wiselberg and 11 00:00:44,360 --> 00:00:47,320 Speaker 1: the lawyers for the Trump organization pleaded not guilty in 12 00:00:47,440 --> 00:00:52,199 Speaker 1: court on Thursday. My guest is former federal prosecutor Jennifer Rogers, 13 00:00:52,240 --> 00:00:57,320 Speaker 1: who teaches at Columbia Law School. Prosecutors called it sweeping, 14 00:00:57,400 --> 00:01:01,880 Speaker 1: an audacious illegal payment. Schime, tell us what they're charging. 15 00:01:02,480 --> 00:01:08,280 Speaker 1: So processes are charging a fifteen year conspiracy whereby Alan, 16 00:01:08,319 --> 00:01:12,600 Speaker 1: Weiselberg and others at the Trump organization, would you have 17 00:01:12,959 --> 00:01:17,959 Speaker 1: part of an employee's compensation in the form of other 18 00:01:18,040 --> 00:01:23,240 Speaker 1: things like rent free apartments, car Leas's cash bonuses, and 19 00:01:23,319 --> 00:01:26,040 Speaker 1: on the books of the Trump organization, it would not 20 00:01:26,080 --> 00:01:29,000 Speaker 1: say that those things are income, so the Trump organization 21 00:01:29,040 --> 00:01:32,280 Speaker 1: didn't pay taxes on them, and then the person receiving 22 00:01:32,280 --> 00:01:35,479 Speaker 1: those benefits also would not pay taxes on them as 23 00:01:35,520 --> 00:01:38,319 Speaker 1: if they were income. So win win for both of 24 00:01:38,360 --> 00:01:43,560 Speaker 1: those people, but fealing from the taxpayers. So after a 25 00:01:43,600 --> 00:01:47,080 Speaker 1: more than two year investigation, two trips to the Supreme 26 00:01:47,120 --> 00:01:50,400 Speaker 1: Court to get Trump's financial records, a joining of the 27 00:01:50,440 --> 00:01:52,800 Speaker 1: forces of the Manhattan d A's Office and the New 28 00:01:52,880 --> 00:01:56,720 Speaker 1: York Attorney General, this tax case may strike some as 29 00:01:56,840 --> 00:02:01,240 Speaker 1: much ado about nothing. Well, I actually think it's more 30 00:02:01,920 --> 00:02:06,600 Speaker 1: meaningful and more media than I was anticipating, because from 31 00:02:06,600 --> 00:02:09,880 Speaker 1: the reporting, it really did sound like it was going 32 00:02:09,919 --> 00:02:14,000 Speaker 1: to be a very limited scheme about Alan Weifelberg's personal 33 00:02:14,040 --> 00:02:19,160 Speaker 1: compensation and of course the Trump Organization's role in doing 34 00:02:19,200 --> 00:02:22,360 Speaker 1: the tax fraud with respect to weifelberg compensation. But I 35 00:02:22,400 --> 00:02:25,720 Speaker 1: didn't anticipate that it would go into a fifteen year 36 00:02:25,760 --> 00:02:30,720 Speaker 1: scheme that it would explicitly mention other executives and employees 37 00:02:30,960 --> 00:02:34,959 Speaker 1: had basically been doing the same thing. So it's much 38 00:02:35,000 --> 00:02:37,639 Speaker 1: more sweeping than I thought in that sense, and leads 39 00:02:37,720 --> 00:02:41,320 Speaker 1: need to believe that there will be more charges in 40 00:02:41,360 --> 00:02:44,959 Speaker 1: connection with this scheme in terms of other people. Whether 41 00:02:45,080 --> 00:02:47,640 Speaker 1: or not they managed to charge the other pieces of 42 00:02:47,639 --> 00:02:51,400 Speaker 1: the investigation that we've been told about, namely the inflation 43 00:02:51,440 --> 00:02:55,080 Speaker 1: and deflation of assets to avoid tax liability and to 44 00:02:55,520 --> 00:02:58,120 Speaker 1: get loans, we don't know that from what happened to 45 00:02:58,200 --> 00:03:01,320 Speaker 1: do we nowhere? Trump isn't all? This is he on 46 00:03:01,480 --> 00:03:05,519 Speaker 1: indicted co conspirator number one? You know, I'm not sure. 47 00:03:05,639 --> 00:03:08,200 Speaker 1: I don't think so. It looks to me like the 48 00:03:08,240 --> 00:03:12,080 Speaker 1: person that they were referencing is an unindicted co conspirator, 49 00:03:12,120 --> 00:03:15,760 Speaker 1: one with someone with a lesser role, perhaps the controller, 50 00:03:15,919 --> 00:03:19,079 Speaker 1: you know, someone who actually was involved with the mechanics 51 00:03:19,080 --> 00:03:23,320 Speaker 1: of paying people. Whether he is ultimately able to charges 52 00:03:23,360 --> 00:03:27,080 Speaker 1: of course the huge question for everyone. I assume they're 53 00:03:27,080 --> 00:03:30,040 Speaker 1: still working on that. Of course, if Alan Weichelberg flips, 54 00:03:30,080 --> 00:03:32,440 Speaker 1: that will be one way that they can make great 55 00:03:32,480 --> 00:03:35,720 Speaker 1: strides in that regard. But you know, they also have 56 00:03:35,880 --> 00:03:39,720 Speaker 1: a lot of documents in their possessions, so they need 57 00:03:39,760 --> 00:03:43,000 Speaker 1: to prove that not only Donald Trump do that these 58 00:03:43,040 --> 00:03:45,840 Speaker 1: apartments or tuition or what have you were being paid 59 00:03:45,840 --> 00:03:48,320 Speaker 1: for by the Trump organization that they likely can prove 60 00:03:48,400 --> 00:03:50,560 Speaker 1: because apparently he signed some of the checks and so on, 61 00:03:51,040 --> 00:03:53,880 Speaker 1: But they need to prove that he knew of the scheme. 62 00:03:53,920 --> 00:03:55,960 Speaker 1: In other words, he knew that the Trump or was 63 00:03:56,080 --> 00:03:59,840 Speaker 1: not paying payroll taxes on that incombment. So that's the 64 00:04:00,000 --> 00:04:02,800 Speaker 1: piece that maybe they have it from the document. Certainly 65 00:04:02,840 --> 00:04:05,480 Speaker 1: if it exists, they could get it from Weiselberg, but that, 66 00:04:05,760 --> 00:04:07,720 Speaker 1: you know, still again is down the road. We're not 67 00:04:07,720 --> 00:04:10,720 Speaker 1: sure yet. So there was this pressure campaign to get 68 00:04:10,760 --> 00:04:15,360 Speaker 1: Weiselberg to flip, which obviously did not work. Is this 69 00:04:15,440 --> 00:04:19,159 Speaker 1: lawsuit part of that pressure campaign putting even more pressure 70 00:04:19,200 --> 00:04:22,960 Speaker 1: on Weisselberg. Well, it certainly puts more pressure on him. 71 00:04:23,000 --> 00:04:25,800 Speaker 1: I mean, they had a whole bunch of meetings. He 72 00:04:25,839 --> 00:04:27,880 Speaker 1: will have known exactly what they were going to charge. 73 00:04:27,920 --> 00:04:30,800 Speaker 1: There were no surprises for Alan Weisenberg. So it's not 74 00:04:30,920 --> 00:04:32,880 Speaker 1: that all of a sudden he says, oh no, there's 75 00:04:32,920 --> 00:04:34,800 Speaker 1: totally was much more than I thought. I better for 76 00:04:34,880 --> 00:04:37,400 Speaker 1: what you know, that's not what's happening. At the same time, 77 00:04:37,760 --> 00:04:40,599 Speaker 1: there's a difference between knowing and theory that this is 78 00:04:40,640 --> 00:04:42,920 Speaker 1: coming and it's going to happen to you and actually 79 00:04:42,960 --> 00:04:47,000 Speaker 1: seeing in handcuffs in a courtroom, facing a judge and 80 00:04:47,080 --> 00:04:50,600 Speaker 1: kind of having that all come to reality for you. 81 00:04:50,720 --> 00:04:53,719 Speaker 1: And so it has happened before that, when the rubber 82 00:04:53,720 --> 00:04:56,279 Speaker 1: really hits the road and you're really in it, you're 83 00:04:56,320 --> 00:04:58,920 Speaker 1: in the litigation. Maybe he's going to be paying close 84 00:04:58,960 --> 00:05:01,360 Speaker 1: attention to how Trump response to all of this, whether 85 00:05:01,400 --> 00:05:03,840 Speaker 1: he feels like he's still on Trump's good side, or 86 00:05:03,880 --> 00:05:05,800 Speaker 1: Trump's going to turn on him the way that he 87 00:05:05,880 --> 00:05:09,080 Speaker 1: ultimately turned on Michael Cohen. Of course, you know these 88 00:05:09,120 --> 00:05:11,880 Speaker 1: are the things he's going to be thinking about. I 89 00:05:11,880 --> 00:05:14,880 Speaker 1: would say though that it still thinks unlikely to me, 90 00:05:15,320 --> 00:05:18,000 Speaker 1: given that up to this point knowing where he was 91 00:05:18,040 --> 00:05:23,520 Speaker 1: facing Steadfast was huge to cooperate. Let's say Weislberg doesn't cooperate, 92 00:05:24,160 --> 00:05:27,960 Speaker 1: what would they have to do to connect Trump to this, Well, 93 00:05:28,040 --> 00:05:30,960 Speaker 1: they need to show that he knew what was going 94 00:05:31,040 --> 00:05:35,039 Speaker 1: on here, right, So it could be in documents if 95 00:05:35,160 --> 00:05:37,320 Speaker 1: let's say there were memos that went back and forth 96 00:05:37,400 --> 00:05:41,159 Speaker 1: that described this. Certainly communications that are in written form, 97 00:05:41,320 --> 00:05:45,520 Speaker 1: like emails, which Trump's famously doesn't email. So that's you know, 98 00:05:45,680 --> 00:05:49,920 Speaker 1: one avenue that's likely not going to be available to prosecutors. 99 00:05:50,240 --> 00:05:54,280 Speaker 1: Text messages. I mean, there are ways that communications between 100 00:05:54,279 --> 00:05:56,680 Speaker 1: Trump and others that that described his knowledge that this 101 00:05:56,800 --> 00:06:00,080 Speaker 1: could be captured. You know, formal memos are unlike me 102 00:06:00,200 --> 00:06:03,599 Speaker 1: to describe a criminal scheme for obvious reasons, don't usually 103 00:06:03,640 --> 00:06:06,080 Speaker 1: write down that sort of thing. So you know they're 104 00:06:06,080 --> 00:06:08,880 Speaker 1: gonna have to piece it together. I mean, if they 105 00:06:09,040 --> 00:06:13,560 Speaker 1: could show that Donald Trump knew about this, maybe because 106 00:06:13,839 --> 00:06:18,240 Speaker 1: he had signed and reduced things that it made it obvious. Um. 107 00:06:18,240 --> 00:06:21,240 Speaker 1: And then you couple that with testimonious people who had 108 00:06:21,279 --> 00:06:24,760 Speaker 1: discussions with him about some aspects of it. Even if 109 00:06:24,800 --> 00:06:27,880 Speaker 1: Weifelberg doesn't cooperate, and there may be other people who 110 00:06:27,960 --> 00:06:31,400 Speaker 1: are willing to cooperate, kind of keep all of this together. 111 00:06:31,720 --> 00:06:33,800 Speaker 1: But it's a big task. I mean, they really do 112 00:06:34,000 --> 00:06:36,240 Speaker 1: have to show that intent and that knowledge. That's the 113 00:06:36,320 --> 00:06:39,080 Speaker 1: hardest part of any criminal case. And when you have 114 00:06:39,240 --> 00:06:42,919 Speaker 1: someone like Trump who not only does an email, but 115 00:06:43,000 --> 00:06:44,880 Speaker 1: he's at the very top, so in a lot of 116 00:06:44,880 --> 00:06:48,520 Speaker 1: ways he's insulated by the people below him. He just says, well, 117 00:06:48,560 --> 00:06:51,919 Speaker 1: I didn't deal with the nitty gritty of the finances. 118 00:06:51,960 --> 00:06:54,440 Speaker 1: That was Weifelberg's job. If he was running this scheme, 119 00:06:55,240 --> 00:06:58,039 Speaker 1: you know why why would I know about that. But 120 00:06:58,120 --> 00:07:00,720 Speaker 1: then you have to think to yourself, well, is it 121 00:07:01,080 --> 00:07:04,159 Speaker 1: what's Weifelberg getting out of it? Obviously personally he's getting 122 00:07:04,240 --> 00:07:06,919 Speaker 1: this tax bought benefit out of it for him, But 123 00:07:07,000 --> 00:07:09,080 Speaker 1: it wasn't just him, I mean, and Dimon says, it 124 00:07:09,160 --> 00:07:11,720 Speaker 1: was any other people at Trump work. So what is 125 00:07:11,840 --> 00:07:15,320 Speaker 1: his What benefit does he get out of letting other 126 00:07:15,360 --> 00:07:18,720 Speaker 1: people also get away without paying their taxes? On the 127 00:07:18,840 --> 00:07:22,400 Speaker 1: organization getaways without paying its fair share of taxes. And 128 00:07:22,480 --> 00:07:25,520 Speaker 1: then you start to realize other people must have been involved, 129 00:07:25,800 --> 00:07:28,560 Speaker 1: that that's not good enough to prove beyond a reasonable 130 00:07:28,600 --> 00:07:31,400 Speaker 1: doubt that those people were involved. But you kind of 131 00:07:31,440 --> 00:07:34,600 Speaker 1: cobble together all this proof and all these arguments. If 132 00:07:34,640 --> 00:07:37,160 Speaker 1: you think you've got it beyond a reasonable doubt, then 133 00:07:37,200 --> 00:07:40,120 Speaker 1: that's when you're ready to charge. Do you think Trump 134 00:07:40,200 --> 00:07:44,320 Speaker 1: is saying to himself, Wow, I avoided another legal problem. 135 00:07:44,400 --> 00:07:47,280 Speaker 1: They're not getting me on this. No. I think it's 136 00:07:47,320 --> 00:07:50,680 Speaker 1: a very very bad day for him because he has 137 00:07:50,720 --> 00:07:53,600 Speaker 1: to be worried that Alan weifel goes under this pressure, 138 00:07:53,880 --> 00:07:57,120 Speaker 1: will cooperate, and he has to be worried that the 139 00:07:57,200 --> 00:07:59,800 Speaker 1: DA's office is going to be able to put together 140 00:08:00,120 --> 00:08:03,040 Speaker 1: enough proof to charge him with all of the documents 141 00:08:03,040 --> 00:08:05,840 Speaker 1: that they have recovered as part of this case, all 142 00:08:05,880 --> 00:08:08,680 Speaker 1: of the people that they're still talking to. So I 143 00:08:08,720 --> 00:08:11,920 Speaker 1: think he's very, very worthy. It's definitely a bad day 144 00:08:11,920 --> 00:08:14,120 Speaker 1: for him, no matter what he might put out there 145 00:08:14,160 --> 00:08:17,840 Speaker 1: as far as public statements, he's unhappy. So the Trump 146 00:08:17,960 --> 00:08:22,560 Speaker 1: organization put out a statement saying bringing a criminal prosecution 147 00:08:22,640 --> 00:08:26,600 Speaker 1: involving employee benefits that neither the I R S nor 148 00:08:26,640 --> 00:08:29,520 Speaker 1: any other d A would ever think of bringing. Is 149 00:08:29,520 --> 00:08:31,160 Speaker 1: that true? Do you think that this is a case 150 00:08:31,200 --> 00:08:34,520 Speaker 1: that the I R S or another d a's office 151 00:08:34,800 --> 00:08:40,120 Speaker 1: wouldn't have brought. Well, that's certainly their position. And what's 152 00:08:40,160 --> 00:08:42,600 Speaker 1: what's interesting about it is, you know, first of all, 153 00:08:42,640 --> 00:08:45,600 Speaker 1: it's not really a legal position. I mean, they're not 154 00:08:46,000 --> 00:08:49,199 Speaker 1: going to be going into court and saying, well, DA 155 00:08:49,280 --> 00:08:52,440 Speaker 1: shouldn't charge this sort of saying even if it's technically criminal. 156 00:08:52,480 --> 00:08:55,400 Speaker 1: So you have to disis this case this is an 157 00:08:55,559 --> 00:08:58,640 Speaker 1: argument for the court of public opinion and of course 158 00:08:58,720 --> 00:09:01,480 Speaker 1: for their client, Ald Trump, because that's what he wants 159 00:09:01,480 --> 00:09:04,040 Speaker 1: to hear. He wants his lawyers to repeat this witch 160 00:09:04,080 --> 00:09:07,240 Speaker 1: hunt narrative that he is so fond of. Here um, 161 00:09:07,400 --> 00:09:10,720 Speaker 1: But it's also going to completely go out the window 162 00:09:11,080 --> 00:09:14,880 Speaker 1: that they are able to bring other charges. I mean, 163 00:09:15,360 --> 00:09:17,200 Speaker 1: you know, if they are able to bring any of 164 00:09:17,360 --> 00:09:21,880 Speaker 1: these charges based on a team to um to inflate 165 00:09:21,920 --> 00:09:24,959 Speaker 1: and deflate assets and avoid taxes that way and to 166 00:09:25,440 --> 00:09:28,640 Speaker 1: gain loans that way, then that is the sort of 167 00:09:28,640 --> 00:09:31,760 Speaker 1: thing obviously that would be readily charged. But also this 168 00:09:31,960 --> 00:09:34,199 Speaker 1: is a pretty involved scheme. I mean, make charge with 169 00:09:34,320 --> 00:09:38,360 Speaker 1: the President's company was engaged in a conspiracy across numerous 170 00:09:38,400 --> 00:09:42,440 Speaker 1: people there for fifteen years to avoid a good amount 171 00:09:42,440 --> 00:09:46,040 Speaker 1: of taxes. And we only saw the amounts with respect 172 00:09:46,120 --> 00:09:49,480 Speaker 1: to Alan Weiselberg, and they haven't yet named the other 173 00:09:49,520 --> 00:09:52,200 Speaker 1: people that they're talking about who are these benefits. So 174 00:09:52,760 --> 00:09:56,280 Speaker 1: you know whether or not you can point to specific 175 00:09:56,360 --> 00:10:00,040 Speaker 1: cases like this that have or haven't been charged. I 176 00:10:00,040 --> 00:10:02,520 Speaker 1: I don't think you can say that this is unworthy 177 00:10:02,559 --> 00:10:06,079 Speaker 1: of charging when you're talking about a scheme of this magnitude, 178 00:10:06,200 --> 00:10:09,200 Speaker 1: this length of time, this amount of money. You know, 179 00:10:09,280 --> 00:10:11,559 Speaker 1: I don't think that's a fair argument. But again, it's 180 00:10:11,600 --> 00:10:14,040 Speaker 1: not really the legal argument. It's more of a kind 181 00:10:14,040 --> 00:10:17,040 Speaker 1: of public perception argument. So do you think that they're 182 00:10:17,040 --> 00:10:21,720 Speaker 1: going to charge other people with the same scheme outside 183 00:10:21,720 --> 00:10:24,480 Speaker 1: of Trump, it does look like that to me. I mean, 184 00:10:24,520 --> 00:10:27,360 Speaker 1: either you never can tell you who have to wonder 185 00:10:27,360 --> 00:10:29,360 Speaker 1: if they were going through why didn't they just go 186 00:10:29,360 --> 00:10:32,400 Speaker 1: ahead and do it today? Um, But there are other 187 00:10:32,520 --> 00:10:35,640 Speaker 1: people that are referenced in the indictment, and you know, 188 00:10:35,679 --> 00:10:38,640 Speaker 1: they have all of the books and records, so they 189 00:10:38,720 --> 00:10:43,360 Speaker 1: likely know who it was who received these illegal benefits. 190 00:10:43,400 --> 00:10:46,920 Speaker 1: And maybe they're still kind of gathering evidence in terms 191 00:10:46,960 --> 00:10:50,079 Speaker 1: of whether those people took advantage of that on their 192 00:10:50,080 --> 00:10:52,640 Speaker 1: own taxes and the evidence that they had that they 193 00:10:52,760 --> 00:10:55,200 Speaker 1: do what they were doing was wrong, et cetera, be 194 00:10:55,200 --> 00:10:57,560 Speaker 1: warred they charge. You know, maybe that's why those other 195 00:10:57,600 --> 00:11:00,240 Speaker 1: folks weren't charged today. But in the end, I even 196 00:11:00,320 --> 00:11:02,560 Speaker 1: makes very clear there were other people involved, So I 197 00:11:02,600 --> 00:11:05,520 Speaker 1: do expect that we will see other people added to 198 00:11:06,000 --> 00:11:10,840 Speaker 1: this particular indictment about this particular tax team that was charged. Finally, 199 00:11:11,760 --> 00:11:15,160 Speaker 1: does this impinge in any way on the Trump organization's 200 00:11:15,200 --> 00:11:19,200 Speaker 1: ability to do business while this is going on? Well, 201 00:11:19,360 --> 00:11:22,760 Speaker 1: not in a technical way. In other words, it's not 202 00:11:22,840 --> 00:11:27,000 Speaker 1: like they had their assets frozen or under any sort 203 00:11:27,000 --> 00:11:31,200 Speaker 1: of vegal injunction or anything like that. But you know, 204 00:11:31,280 --> 00:11:34,880 Speaker 1: if you are a company thinking about doing business with 205 00:11:34,920 --> 00:11:39,280 Speaker 1: the Trump organization. This is now an organization certain components 206 00:11:39,280 --> 00:11:42,800 Speaker 1: of wish that Trump Organization is really a compilation of 207 00:11:42,920 --> 00:11:47,439 Speaker 1: different corporations, but two of those corporations have now been 208 00:11:47,520 --> 00:11:51,439 Speaker 1: criminally charged with a fifteen year tax fraud team. So, 209 00:11:52,200 --> 00:11:55,200 Speaker 1: you know, really caused people to say, hey, you know, 210 00:11:55,520 --> 00:11:58,680 Speaker 1: let's flow down and think twice before we want to 211 00:11:58,679 --> 00:12:02,199 Speaker 1: find this lease. This company may not be around. Uh, 212 00:12:02,679 --> 00:12:04,640 Speaker 1: they just not want to have anything to do with it. 213 00:12:04,679 --> 00:12:08,679 Speaker 1: In terms of the optics publicly, you know, you you 214 00:12:08,840 --> 00:12:11,840 Speaker 1: do think that it has to in some way impact 215 00:12:11,840 --> 00:12:15,240 Speaker 1: their abilities to do business in that kind of unofficial 216 00:12:15,240 --> 00:12:18,600 Speaker 1: way as opposed to some sort of peoplely official way. 217 00:12:18,679 --> 00:12:21,319 Speaker 1: So I think it probably will, although you know, I 218 00:12:21,320 --> 00:12:23,800 Speaker 1: don't know how much we'll know about that publicly or 219 00:12:23,800 --> 00:12:28,520 Speaker 1: whether things kind of fall apart behind closed doors. Thanks Jennifer. 220 00:12:28,920 --> 00:12:34,320 Speaker 1: That's former federal prosecutor Jennifer Rogers. The Supreme Court ended 221 00:12:34,360 --> 00:12:38,600 Speaker 1: its term split six to three down ideological lines in 222 00:12:38,640 --> 00:12:42,840 Speaker 1: the most consequential voting rights decision in a decade, limiting 223 00:12:42,840 --> 00:12:45,839 Speaker 1: the reach of the landmark Voting Rights Act and making 224 00:12:45,880 --> 00:12:49,560 Speaker 1: it harder to challenge Republican efforts to limit ballot access 225 00:12:49,600 --> 00:12:54,280 Speaker 1: in many states. President Joe Biden denounced the decision, saying 226 00:12:54,280 --> 00:12:57,720 Speaker 1: the nation should be fully enforcing voting rights laws, not 227 00:12:57,840 --> 00:13:01,199 Speaker 1: weakening them. The ability of a state legislative body to 228 00:13:01,280 --> 00:13:06,160 Speaker 1: come along and vote their legislature vote to change who 229 00:13:06,280 --> 00:13:10,920 Speaker 1: has declared the winner I find to be somewhat astounding. 230 00:13:12,040 --> 00:13:16,599 Speaker 1: In the majority opinion, Justice Samuel Alito said near inconvenience 231 00:13:16,800 --> 00:13:21,080 Speaker 1: wasn't reason to invalidate voting rules, echoing his statements during 232 00:13:21,200 --> 00:13:25,439 Speaker 1: oral arguments. People who are poor and less well educated, 233 00:13:26,120 --> 00:13:30,920 Speaker 1: on balance, probably will find it more difficult to comply 234 00:13:31,520 --> 00:13:35,720 Speaker 1: with just about every voting rule than do people who 235 00:13:35,880 --> 00:13:40,439 Speaker 1: are more affluent and have had the benefit of more education. 236 00:13:40,920 --> 00:13:44,360 Speaker 1: My guest is Richard Brofald, professor at Columbia Law School, 237 00:13:45,000 --> 00:13:48,120 Speaker 1: how much of a blow is this decision to voting 238 00:13:48,200 --> 00:13:51,160 Speaker 1: rights advocates. It is a blow. How much we'll see 239 00:13:51,200 --> 00:13:53,920 Speaker 1: as further cases happened. I mean, the main thing is 240 00:13:53,960 --> 00:13:56,880 Speaker 1: that court has made it now hard to prevail on 241 00:13:56,960 --> 00:14:00,520 Speaker 1: a section to claim in cases that are challenging rules 242 00:14:00,559 --> 00:14:03,800 Speaker 1: that governed the actual ability to vote, to register, the 243 00:14:03,840 --> 00:14:07,480 Speaker 1: casting and counting of ballots. They've basically raised the standard 244 00:14:07,760 --> 00:14:10,000 Speaker 1: They didn't actually set a standard, but the way in 245 00:14:10,000 --> 00:14:13,319 Speaker 1: which the court discussed the evidence and the criteria, it's 246 00:14:13,320 --> 00:14:15,360 Speaker 1: gonna be harder for prentiffs to win in the future. 247 00:14:16,080 --> 00:14:19,840 Speaker 1: This was a sixty three vote down audiological lines, and 248 00:14:19,880 --> 00:14:23,600 Speaker 1: the justices have been able to forge alliances in other 249 00:14:23,680 --> 00:14:26,400 Speaker 1: cases there haven't been that many six to three votes. 250 00:14:26,840 --> 00:14:30,520 Speaker 1: Why not here? That's a good question, and this may 251 00:14:30,560 --> 00:14:33,560 Speaker 1: be one given way in which thinking about voting and 252 00:14:33,640 --> 00:14:36,520 Speaker 1: voting rules has become politically polarized in this country in 253 00:14:36,520 --> 00:14:38,400 Speaker 1: recent years. That seems to be showing up in the 254 00:14:38,440 --> 00:14:42,240 Speaker 1: court as well. The majority is just really reluctant to 255 00:14:42,720 --> 00:14:45,840 Speaker 1: second guest state laws that are tightening up on voting. 256 00:14:46,080 --> 00:14:49,560 Speaker 1: They're very reluctant to see laws that might have a 257 00:14:49,600 --> 00:14:52,800 Speaker 1: disparate impact the minority voters to treat them as discriminatory. 258 00:14:53,240 --> 00:14:56,280 Speaker 1: On the descent, by contrast, is extremely sensitive to the 259 00:14:56,320 --> 00:14:59,880 Speaker 1: burden that these new laws and Justice Gagan refers to 260 00:14:59,880 --> 00:15:02,560 Speaker 1: the UH are having on voting in general, on minority 261 00:15:02,640 --> 00:15:06,320 Speaker 1: voters in particular. So the court here upheld too Arizona 262 00:15:06,440 --> 00:15:09,840 Speaker 1: voting restrictions, one that rejects ballots cast in the wrong 263 00:15:09,920 --> 00:15:12,680 Speaker 1: precinct and the second that makes it a crime to 264 00:15:12,720 --> 00:15:17,040 Speaker 1: deliver another person's early ballots, so called ballot harvesting. Explain 265 00:15:17,080 --> 00:15:21,360 Speaker 1: the majority's reasoning here, it's actually a little unclear because 266 00:15:21,480 --> 00:15:24,240 Speaker 1: it's kind of a messy opinion. The court itself says, 267 00:15:24,400 --> 00:15:26,640 Speaker 1: this is the first time we have applied Section Too 268 00:15:26,680 --> 00:15:28,960 Speaker 1: to this kind of a case. We're not going to 269 00:15:29,160 --> 00:15:32,320 Speaker 1: adopt a Christian standard. It's going to be totality of 270 00:15:32,320 --> 00:15:36,320 Speaker 1: the circumstances. But they go ahead and identify the circumstances. 271 00:15:36,320 --> 00:15:38,720 Speaker 1: Two things we're saying, of fun is. One thing they 272 00:15:38,800 --> 00:15:42,120 Speaker 1: reject is a so called disparate impactest, the kind of 273 00:15:42,120 --> 00:15:43,960 Speaker 1: test that we see in a number of civil rights 274 00:15:44,040 --> 00:15:46,760 Speaker 1: laws that say that if a rule has a disparate 275 00:15:46,800 --> 00:15:49,840 Speaker 1: impact on minorities. In this case, the voting rule Burden's 276 00:15:49,880 --> 00:15:53,080 Speaker 1: minority voters more than the Inverton's white voters, that makes 277 00:15:53,080 --> 00:15:55,800 Speaker 1: it suspect and the state has a higher burden of justification. 278 00:15:56,200 --> 00:15:58,000 Speaker 1: The court says that that one thing they are not 279 00:15:58,080 --> 00:16:00,880 Speaker 1: adopting as a disparate impact test. They are looking as 280 00:16:00,880 --> 00:16:04,400 Speaker 1: they say that totality the circumstances is the voting process 281 00:16:04,560 --> 00:16:07,640 Speaker 1: generally open to voters. Let's focus on the particular rule. 282 00:16:08,000 --> 00:16:10,720 Speaker 1: But the overall equal and openness of the system. They 283 00:16:10,760 --> 00:16:14,080 Speaker 1: will look at disparate impact, but that's only one factor, 284 00:16:14,640 --> 00:16:17,240 Speaker 1: and they're looking at kind of the magnitude of the 285 00:16:17,240 --> 00:16:20,280 Speaker 1: burden as well as the difference between white and non 286 00:16:20,320 --> 00:16:23,440 Speaker 1: white voters. They're looking at whether a rule is unusual 287 00:16:23,680 --> 00:16:25,920 Speaker 1: or can be seen in other states. And they give 288 00:16:25,960 --> 00:16:29,360 Speaker 1: a lot of weight to the state's interest in administration 289 00:16:29,840 --> 00:16:33,640 Speaker 1: and coming up with workable rules that maintain integrity and 290 00:16:33,760 --> 00:16:37,000 Speaker 1: present fraud even in the absence of any showing of fraud. 291 00:16:37,320 --> 00:16:41,400 Speaker 1: It does sound very messy and diffusing. So does this 292 00:16:41,480 --> 00:16:44,720 Speaker 1: give any guidance to the lower courts? I would say 293 00:16:44,720 --> 00:16:47,800 Speaker 1: it's kind of a negative guidance. It's like, don't give 294 00:16:47,960 --> 00:16:50,160 Speaker 1: as much weight as some lower courts had been giving 295 00:16:50,440 --> 00:16:53,320 Speaker 1: to the fact of disparate impact. Even when disparate impact 296 00:16:53,400 --> 00:16:56,760 Speaker 1: is tied into some evidence of prior discrimination, because there 297 00:16:56,800 --> 00:16:59,480 Speaker 1: was also evidence of that here, it leaves a little 298 00:16:59,520 --> 00:17:01,760 Speaker 1: bit murky. What is it that planketts can do to win. 299 00:17:02,320 --> 00:17:05,280 Speaker 1: It's more about saying that certain things alone are not enough, 300 00:17:05,720 --> 00:17:08,240 Speaker 1: that you have to look at the overall system. In 301 00:17:08,280 --> 00:17:12,160 Speaker 1: the descent, Justice Elana Kagan said, rarely has a statute 302 00:17:12,200 --> 00:17:16,040 Speaker 1: required so much sacrifice to ensure its passage. Never has 303 00:17:16,040 --> 00:17:19,080 Speaker 1: a statue done more to advance the nation's highest ideals. 304 00:17:19,640 --> 00:17:21,960 Speaker 1: Yet in the last decade this Court has treated no 305 00:17:22,119 --> 00:17:27,280 Speaker 1: statute worse. And she's referring there to the Shelby County case. 306 00:17:27,800 --> 00:17:31,800 Speaker 1: Tell us about the historical significance of the Voting Rights Act. 307 00:17:32,160 --> 00:17:34,639 Speaker 1: When a rights act, the nineteen which is the core act, 308 00:17:35,000 --> 00:17:37,040 Speaker 1: that was one of the croning achievements of the civil 309 00:17:37,080 --> 00:17:39,480 Speaker 1: rights movement, that is sort of John Lewis and the 310 00:17:39,480 --> 00:17:42,680 Speaker 1: march on Selma literally blood wardship in order to get 311 00:17:42,680 --> 00:17:46,080 Speaker 1: that law passed. The two amendment are really dealt with 312 00:17:46,240 --> 00:17:49,239 Speaker 1: how the Supreme Court had been interpreting some aspects of 313 00:17:49,280 --> 00:17:52,119 Speaker 1: that law and was designed to strengthen it, and basically, 314 00:17:52,160 --> 00:17:54,720 Speaker 1: with the majority of dissenter fighting over is just what 315 00:17:54,840 --> 00:17:59,920 Speaker 1: did that strengthening need Voting Rights Act was really doing. Initially, 316 00:18:00,080 --> 00:18:02,920 Speaker 1: with laws which were blatantly discriminatory and being enforced the 317 00:18:03,080 --> 00:18:07,520 Speaker 1: blatantly discriminatory fashion poll taxes, literacy tests, simple refusal to 318 00:18:07,600 --> 00:18:11,159 Speaker 1: register black voters, the focus we had to shift to 319 00:18:11,240 --> 00:18:14,560 Speaker 1: more subtle things like the use of at large elections 320 00:18:14,600 --> 00:18:16,600 Speaker 1: to make it harder for minorities when they were a 321 00:18:16,680 --> 00:18:19,639 Speaker 1: large minority to win anything, and so that law was 322 00:18:19,640 --> 00:18:21,480 Speaker 1: amended to say that we're going to reach things which 323 00:18:21,600 --> 00:18:25,160 Speaker 1: have discriminatory results, even if the plaintiffs can't prew discriminatory 324 00:18:25,200 --> 00:18:28,680 Speaker 1: intent and justice. Kegan says that meant to effect voting 325 00:18:28,800 --> 00:18:30,919 Speaker 1: laws across the board. To look at the result is 326 00:18:30,920 --> 00:18:34,439 Speaker 1: that having a different impact on black and Hispanic and 327 00:18:34,560 --> 00:18:37,440 Speaker 1: Native voters versus white voters, And just as the leader 328 00:18:37,440 --> 00:18:39,560 Speaker 1: sort of pulls back on that, says, yes, it has 329 00:18:39,560 --> 00:18:43,000 Speaker 1: a results test, but it wasn't meant to change everything. 330 00:18:43,440 --> 00:18:44,960 Speaker 1: You have to look at it in light of the 331 00:18:45,000 --> 00:18:48,080 Speaker 1: totality of the circumstances and in light of whether or 332 00:18:48,160 --> 00:18:52,719 Speaker 1: not the voting system the political processes are generally equally open. 333 00:18:52,920 --> 00:18:56,439 Speaker 1: So she says the laws really intended to target individual rules. 334 00:18:56,800 --> 00:18:59,000 Speaker 1: The leader pulls back and says, if the system is 335 00:18:59,280 --> 00:19:02,919 Speaker 1: generally equally open, that's an important thing to gate to account. 336 00:19:02,960 --> 00:19:06,200 Speaker 1: That doesn't eliminate the possibility of challenging individual rules, but 337 00:19:06,320 --> 00:19:08,760 Speaker 1: he's just reframing it in a different way into making 338 00:19:08,800 --> 00:19:11,960 Speaker 1: it more problematic. If you're challenging the rule, which is 339 00:19:12,040 --> 00:19:14,040 Speaker 1: non discriminatory on its face, the burden is going to 340 00:19:14,119 --> 00:19:17,480 Speaker 1: be a lot higher on plaintiffs to show under some 341 00:19:18,040 --> 00:19:19,879 Speaker 1: very vague to telling the service of destest and he 342 00:19:19,920 --> 00:19:24,600 Speaker 1: doesn't fully flesh out to show that it's discriminatory. So 343 00:19:24,880 --> 00:19:29,320 Speaker 1: in Shelby County, the court guarded the Voting Rights Act. 344 00:19:29,720 --> 00:19:33,320 Speaker 1: Did this finish the job? The Voting Rights Act had 345 00:19:33,359 --> 00:19:37,760 Speaker 1: two major pieces. One was a thing called preclearance, and 346 00:19:37,800 --> 00:19:41,080 Speaker 1: that basically said that for certain parts of the country 347 00:19:41,480 --> 00:19:44,159 Speaker 1: areas which had used certain tests that were shown to 348 00:19:44,200 --> 00:19:48,200 Speaker 1: be in discriminatory and it resulted in a low voter turnout, 349 00:19:48,600 --> 00:19:52,600 Speaker 1: those jurisdictions could not adopt any new voting laws without 350 00:19:52,600 --> 00:19:55,600 Speaker 1: getting them pre cleared by the Department of Justice. That 351 00:19:55,680 --> 00:19:57,960 Speaker 1: picked up much of the South, as well as the 352 00:19:58,040 --> 00:20:00,600 Speaker 1: number of the sticks around the county, including the counties 353 00:20:00,600 --> 00:20:03,400 Speaker 1: in New York City, And so that had a powerful 354 00:20:03,440 --> 00:20:08,040 Speaker 1: impact in preventing the adoption of new discriminatory rules because 355 00:20:08,040 --> 00:20:11,080 Speaker 1: then the burden was on the jurisdiction to show that 356 00:20:11,480 --> 00:20:15,520 Speaker 1: its new law was not discriminatory. That was eliminated in 357 00:20:15,560 --> 00:20:19,080 Speaker 1: the Shelby County case. But court didn't actually eliminate the 358 00:20:19,080 --> 00:20:22,280 Speaker 1: idea of preclarance, but it said that the formula that 359 00:20:22,400 --> 00:20:25,480 Speaker 1: Congress was using to say which jurisdictions are subject to it. 360 00:20:25,920 --> 00:20:28,000 Speaker 1: They rejected that. They said it was formula. It was 361 00:20:28,040 --> 00:20:30,800 Speaker 1: back fifty years and Congress hasn't shown that it's a 362 00:20:30,840 --> 00:20:34,679 Speaker 1: good formula for today. So Section five is effectively gone. 363 00:20:35,080 --> 00:20:38,640 Speaker 1: So the only really relevant provisionist section two and yes, 364 00:20:39,280 --> 00:20:43,399 Speaker 1: Section two until recently had been used primarily to attack 365 00:20:43,440 --> 00:20:47,199 Speaker 1: what's called vote dilution mechanisms, which don't interfere with the 366 00:20:47,240 --> 00:20:51,960 Speaker 1: ability to vote, but affect how votes are aggregated, things 367 00:20:52,000 --> 00:20:55,480 Speaker 1: like using at large elections versus district elections, or some 368 00:20:55,560 --> 00:20:58,960 Speaker 1: kinds of Gerryman and districting systems that pack minority voters 369 00:20:59,000 --> 00:21:01,359 Speaker 1: heavily into one district because that they don't have any 370 00:21:01,480 --> 00:21:05,040 Speaker 1: impact on a second district. But since Shelby County and 371 00:21:05,280 --> 00:21:07,160 Speaker 1: as a results of other things, there have been more 372 00:21:07,240 --> 00:21:11,400 Speaker 1: litigation challenging rules that affect how people vote. Obviously, voter 373 00:21:11,480 --> 00:21:13,639 Speaker 1: idea has been a big part of that, but restrictions 374 00:21:13,640 --> 00:21:16,679 Speaker 1: on early voting, restrictions that absent key voting, the whole 375 00:21:16,840 --> 00:21:19,199 Speaker 1: raft of voting rules that are being adopted in a 376 00:21:19,200 --> 00:21:21,560 Speaker 1: lot of states right now. The restrictions on third party 377 00:21:21,640 --> 00:21:25,280 Speaker 1: organizations collecting ballots of aoste voters, and this is gonna 378 00:21:25,320 --> 00:21:28,040 Speaker 1: make it a lot harder for plaintiffs to win in 379 00:21:28,080 --> 00:21:30,720 Speaker 1: those cases. So I wouldn't say the voting right text 380 00:21:30,800 --> 00:21:33,119 Speaker 1: is completely gone, but let's say it's going to be 381 00:21:33,160 --> 00:21:36,320 Speaker 1: just a lot harder as far as let's say these 382 00:21:36,440 --> 00:21:41,200 Speaker 1: new rules that Republicans are pushing through in state legislatures, 383 00:21:41,840 --> 00:21:47,879 Speaker 1: their challenge still under Section two, but the burden on 384 00:21:48,119 --> 00:21:54,440 Speaker 1: the plaintiffs is going to be higher in some undefined way. Right, 385 00:21:54,800 --> 00:21:56,880 Speaker 1: let me pull back one second. You can also still 386 00:21:56,960 --> 00:22:00,199 Speaker 1: bring a discriminatory intent case. There was a little use 387 00:22:00,200 --> 00:22:02,960 Speaker 1: of this case to addressed the question of discriminatory intent 388 00:22:03,280 --> 00:22:06,639 Speaker 1: the title of government's lawsuits file last week against Georgia 389 00:22:07,200 --> 00:22:09,720 Speaker 1: that actually is using Section two and focusing on the 390 00:22:09,760 --> 00:22:13,120 Speaker 1: discriminatory intent aspect of it. And I think they might 391 00:22:13,119 --> 00:22:15,399 Speaker 1: have done that because they could see this case coming, 392 00:22:15,720 --> 00:22:17,040 Speaker 1: and I could see that this case was going to 393 00:22:17,119 --> 00:22:20,879 Speaker 1: make it harder to make a discriminatory impact challenge. So 394 00:22:20,920 --> 00:22:23,560 Speaker 1: the government is arguing that the very new restrictive voting 395 00:22:23,640 --> 00:22:26,960 Speaker 1: rules that Georgia has adopted were actually adopted with the 396 00:22:27,040 --> 00:22:30,600 Speaker 1: intent of making it harder from manorities to vote. There's 397 00:22:30,720 --> 00:22:33,679 Speaker 1: a little piece of this case addresses that one of 398 00:22:33,760 --> 00:22:36,000 Speaker 1: the two restrictions that was an issue in this case, 399 00:22:36,040 --> 00:22:40,760 Speaker 1: the restriction on third parties being able to collect act 400 00:22:40,800 --> 00:22:42,800 Speaker 1: and the ballots and and bring them to the board 401 00:22:42,800 --> 00:22:45,120 Speaker 1: of Elections. There was a claim that that was also 402 00:22:45,119 --> 00:22:49,520 Speaker 1: adopted with discriminatory intent. The District Court said, no, it wasn't. 403 00:22:49,560 --> 00:22:52,840 Speaker 1: The Court of Appeals reversed and said there was enough, 404 00:22:52,880 --> 00:22:56,240 Speaker 1: there was enough talk of discriminatory intent in the legislature 405 00:22:56,280 --> 00:22:59,280 Speaker 1: that that should have been enough. The Supreme Court reverses that, 406 00:22:59,400 --> 00:23:01,919 Speaker 1: saying that district the Court of Appeals should not have 407 00:23:01,960 --> 00:23:06,280 Speaker 1: repursed the district courts factual findings. In that discussion, there's 408 00:23:06,320 --> 00:23:09,600 Speaker 1: some notion that there was evidence that one or two people, 409 00:23:09,640 --> 00:23:13,160 Speaker 1: somebody in the legislature was doing this for partisan reasons, 410 00:23:13,280 --> 00:23:15,520 Speaker 1: that they were making it harder collect these ballots because 411 00:23:15,560 --> 00:23:18,320 Speaker 1: these are going to hurt hurt Democrats. And this picks 412 00:23:18,359 --> 00:23:20,520 Speaker 1: up on a question that's been dogging the courts now 413 00:23:20,560 --> 00:23:22,960 Speaker 1: for about a decade or more, which is, how do 414 00:23:23,000 --> 00:23:27,800 Speaker 1: you disentangle partisan motives and racial motives if it turns 415 00:23:27,840 --> 00:23:31,200 Speaker 1: out that minority voters are Disunfortunately Democrats and it's a 416 00:23:31,240 --> 00:23:35,600 Speaker 1: Republican legislature that's adopting the rule. If they're able to 417 00:23:35,640 --> 00:23:38,960 Speaker 1: say we did it for partisan motives, well, that insulated 418 00:23:39,000 --> 00:23:41,119 Speaker 1: from a challenge to say that it was adopted for 419 00:23:41,359 --> 00:23:45,119 Speaker 1: racially discriptory motives. That remains kind of a murky line. 420 00:23:45,600 --> 00:23:47,320 Speaker 1: And there's a little bit of a discussion in this 421 00:23:47,359 --> 00:23:51,320 Speaker 1: case that could underscore the idea that partisan motives isn't 422 00:23:51,320 --> 00:23:55,200 Speaker 1: necessarily racial motives, and that may have some relevance to 423 00:23:55,320 --> 00:23:59,439 Speaker 1: the the United the parnt of Justices lawsuit challenging the 424 00:23:59,480 --> 00:24:03,960 Speaker 1: recent or of voting law. So then plaintiffs can sue 425 00:24:04,160 --> 00:24:08,800 Speaker 1: and allege a discriminatory intent. Yes, plantifts can still all 426 00:24:08,880 --> 00:24:12,040 Speaker 1: a discriminatory intent, and if they can prove that, they 427 00:24:12,040 --> 00:24:15,000 Speaker 1: can win, but it's difficult to prove. It's difficult to 428 00:24:15,040 --> 00:24:18,640 Speaker 1: prove right. They can still bring a disparate impact case 429 00:24:18,720 --> 00:24:21,280 Speaker 1: as well. I think they'd have to show that that 430 00:24:21,359 --> 00:24:25,160 Speaker 1: the thing they're challenging has a I guess a more 431 00:24:25,240 --> 00:24:29,560 Speaker 1: substantial impact on minority voters and maybe a bigger difference. 432 00:24:29,600 --> 00:24:32,120 Speaker 1: The Court doesn't really lay out a clear standard here, 433 00:24:32,400 --> 00:24:35,800 Speaker 1: but I think the Court indicates it's finding that the 434 00:24:35,800 --> 00:24:40,840 Speaker 1: the impact of the outer precinct test requirement UH prohibition 435 00:24:41,560 --> 00:24:44,000 Speaker 1: UH just that that they didn't see it as a 436 00:24:44,040 --> 00:24:47,080 Speaker 1: big as having a lot of impact, or as having 437 00:24:47,119 --> 00:24:50,320 Speaker 1: a big difference between minority voters and white voters. Now 438 00:24:50,320 --> 00:24:52,800 Speaker 1: that the Center disagrees that the sent has in fact, 439 00:24:53,200 --> 00:24:56,760 Speaker 1: you know, it's the percentages differences are quite big, and 440 00:24:56,840 --> 00:24:59,280 Speaker 1: you know, if it affects ten thousand votes, that's what 441 00:24:59,359 --> 00:25:02,719 Speaker 1: the margin ofctory was for Biden over Trump in Arizona 442 00:25:02,800 --> 00:25:06,480 Speaker 1: last year, So ten thousand votes could matter. You know, 443 00:25:06,560 --> 00:25:08,720 Speaker 1: it's possible that if you're able to find a situation 444 00:25:08,760 --> 00:25:13,040 Speaker 1: where the disparity between white and non white voters is bigger, 445 00:25:13,119 --> 00:25:16,280 Speaker 1: that might make a difference. And I have to say 446 00:25:16,320 --> 00:25:19,080 Speaker 1: that I thought the court's finding of the government's rationale 447 00:25:19,080 --> 00:25:23,639 Speaker 1: for the refusald account out of pricint votes was incredibly sinned. 448 00:25:24,200 --> 00:25:28,480 Speaker 1: But at least in the one the ban on third 449 00:25:28,520 --> 00:25:31,919 Speaker 1: party collectors of absentee ballots, there is a uh, you know, 450 00:25:32,000 --> 00:25:35,119 Speaker 1: there's a long history of arguments that that lends itself 451 00:25:35,160 --> 00:25:37,719 Speaker 1: to fraud, and although there was no proof of fraud, 452 00:25:38,400 --> 00:25:40,760 Speaker 1: uh that the court does have a long standing argument 453 00:25:41,040 --> 00:25:43,960 Speaker 1: along sending you know, line that says you don't have 454 00:25:44,000 --> 00:25:45,800 Speaker 1: to wait for fraud to actually happen if you think 455 00:25:45,800 --> 00:25:49,560 Speaker 1: it's a real possibility. So there could be some situations 456 00:25:49,600 --> 00:25:53,040 Speaker 1: where the rule that's being challenged doesn't have a good 457 00:25:53,080 --> 00:25:57,359 Speaker 1: justification UM, and that might be a possibility as well. 458 00:25:58,119 --> 00:26:03,520 Speaker 1: And also, in a next to three decision, the Court 459 00:26:03,560 --> 00:26:07,720 Speaker 1: invalidated a California requirement that charities list the names and 460 00:26:07,800 --> 00:26:11,200 Speaker 1: addresses of their top donors in filing with the state. 461 00:26:11,840 --> 00:26:16,160 Speaker 1: Has the Supreme Court before in the context of elections 462 00:26:16,680 --> 00:26:21,960 Speaker 1: supported laws requiring public disclosure. Yes, the Supreme Court has 463 00:26:22,040 --> 00:26:26,320 Speaker 1: consistently uptail disclosure requirements in the context of of of 464 00:26:26,520 --> 00:26:30,320 Speaker 1: elections and in campaign finance. Is actually the one UH 465 00:26:30,480 --> 00:26:34,840 Speaker 1: campaign finance law that the Court has consistently backed UM, 466 00:26:34,880 --> 00:26:38,919 Speaker 1: often by by by law sided margins. You may recall 467 00:26:38,960 --> 00:26:43,480 Speaker 1: that Citizens United when the Courts struck down the limits 468 00:26:43,600 --> 00:26:47,400 Speaker 1: on the ban on corporate expenditures, the Court voted eight 469 00:26:47,440 --> 00:26:50,800 Speaker 1: to one to sustain the requirement that the spender in 470 00:26:50,840 --> 00:26:54,960 Speaker 1: that case UH file a disclosure report. UM and two 471 00:26:55,000 --> 00:26:57,560 Speaker 1: of the Courts conservatives who are not on the Court, 472 00:26:58,119 --> 00:27:02,560 Speaker 1: Justices Kennedy and Scalia in particular, we're big proponents of disclosure. 473 00:27:03,000 --> 00:27:08,280 Speaker 1: So this is the Court's first disclosure case since um Ken. 474 00:27:08,280 --> 00:27:11,639 Speaker 1: It both Kennedy and Scalia have left. Uh. And of 475 00:27:11,680 --> 00:27:15,240 Speaker 1: course since justice uh Gisburg is gone. UM. And so 476 00:27:15,400 --> 00:27:18,760 Speaker 1: what you had, what you really now have is the 477 00:27:18,880 --> 00:27:24,160 Speaker 1: court remains supportive of disclosure, but somewhat less so. Uh. 478 00:27:24,160 --> 00:27:27,760 Speaker 1: It seems it's tightening up a bit um of the 479 00:27:27,920 --> 00:27:32,680 Speaker 1: just on the connection between the reason for the disclosure 480 00:27:32,800 --> 00:27:35,600 Speaker 1: and the nature of the disclosure. That tell us a 481 00:27:35,640 --> 00:27:40,240 Speaker 1: little bit about the decision. Okay, so this was something California, 482 00:27:40,840 --> 00:27:44,960 Speaker 1: you know, like many states overseas, the charities that UH 483 00:27:45,119 --> 00:27:49,320 Speaker 1: solicit contributions in the state UM, and the i r 484 00:27:49,480 --> 00:27:52,239 Speaker 1: s of the federal government. Uh, these charities get are 485 00:27:52,520 --> 00:27:54,639 Speaker 1: tax exempt the i r s as a form of 486 00:27:54,720 --> 00:28:00,800 Speaker 1: called that requires the charity to file uddicate. It's it's donors, 487 00:28:01,480 --> 00:28:04,800 Speaker 1: either those who cross a certain threshold, like give more 488 00:28:04,800 --> 00:28:07,240 Speaker 1: than two percent that account for more than two percent 489 00:28:08,000 --> 00:28:10,720 Speaker 1: of the donations the charity or the dollar threshold for 490 00:28:11,359 --> 00:28:15,120 Speaker 1: UH for smaller charities, UH five thou dollars. I think, 491 00:28:15,359 --> 00:28:17,199 Speaker 1: and this is an anti fraud device. That's the way 492 00:28:17,240 --> 00:28:19,760 Speaker 1: of seeing that if there that maybe these charities are 493 00:28:19,800 --> 00:28:22,120 Speaker 1: being manipulated by the donors, maybe this is a way 494 00:28:22,240 --> 00:28:24,960 Speaker 1: of hiding money. UH that maybe the charity has been 495 00:28:24,960 --> 00:28:28,000 Speaker 1: going back and making payments to these donors, are hiring 496 00:28:28,000 --> 00:28:30,560 Speaker 1: the donors. So it's a way, it's really kind of um, 497 00:28:30,600 --> 00:28:33,199 Speaker 1: you know, uh, a way of of of of of 498 00:28:33,280 --> 00:28:38,440 Speaker 1: investigating improper dealings between the donors and their charities in 499 00:28:38,480 --> 00:28:40,920 Speaker 1: California and just and a handful of other states, I 500 00:28:40,960 --> 00:28:44,040 Speaker 1: think maybe just three three other states have been asking 501 00:28:44,080 --> 00:28:47,400 Speaker 1: for the same information, but until recently they were not 502 00:28:47,520 --> 00:28:50,760 Speaker 1: enforcing the demand. They meant to step up their enforcement 503 00:28:50,760 --> 00:28:52,600 Speaker 1: of that demand. Actually this case is straight down for 504 00:28:52,600 --> 00:28:54,920 Speaker 1: a while, so probably more like twenty ten, and they 505 00:28:54,920 --> 00:28:58,600 Speaker 1: were being resisted by these two organizations, which are uh 506 00:28:58,680 --> 00:29:02,800 Speaker 1: conservative at these The organization and their argument was that 507 00:29:03,240 --> 00:29:05,960 Speaker 1: both that the requirement on its face was invalid because 508 00:29:05,960 --> 00:29:09,160 Speaker 1: it would chill donations, and it was invalid as applied 509 00:29:09,200 --> 00:29:14,200 Speaker 1: to them because they were particularly uh susceptible to harassment 510 00:29:14,320 --> 00:29:19,960 Speaker 1: or reprisal because they're politically active organizations or ideologically active organizations. Now, 511 00:29:20,000 --> 00:29:22,520 Speaker 1: this was a rule that was not public disclosure of 512 00:29:22,560 --> 00:29:25,880 Speaker 1: these names. It was just disclosure to these California attorney 513 00:29:25,960 --> 00:29:28,800 Speaker 1: general with a reporting requirement. But there was a concern 514 00:29:28,840 --> 00:29:31,280 Speaker 1: that the names could leak out, and indeed, at one 515 00:29:31,320 --> 00:29:34,840 Speaker 1: point they actually did leak out, although California says it 516 00:29:34,840 --> 00:29:38,719 Speaker 1: has tightened up its control since then. So the question is, 517 00:29:38,840 --> 00:29:42,120 Speaker 1: you know, you know, with this invalid and that release 518 00:29:42,200 --> 00:29:46,080 Speaker 1: turns on the standard of review for claims a center 519 00:29:46,160 --> 00:29:50,440 Speaker 1: of review for government laws that required the disclosure of information. Uh. 520 00:29:50,440 --> 00:29:53,040 Speaker 1: Screen Court has said that there is the first amend 521 00:29:53,080 --> 00:29:56,320 Speaker 1: to protect spreeddom of association the people, that the ability 522 00:29:56,320 --> 00:29:59,760 Speaker 1: of people to gather together to pursue goals together and 523 00:30:00,160 --> 00:30:04,680 Speaker 1: disclosure does raise issues under freedom of association because the 524 00:30:04,720 --> 00:30:10,600 Speaker 1: disclosure of an affiliation can uh you know, uh raise 525 00:30:10,680 --> 00:30:13,560 Speaker 1: the dangerous ha harassment or apprisal. But the Court has 526 00:30:13,720 --> 00:30:19,920 Speaker 1: sustained disclosure requirements because they could serve various valid government 527 00:30:20,120 --> 00:30:24,000 Speaker 1: goals again anti fraud or in the campaign finance area 528 00:30:24,320 --> 00:30:27,040 Speaker 1: on this case will obviously be evliment for that voter information. 529 00:30:27,600 --> 00:30:31,080 Speaker 1: So the court has um used this standard. What's the 530 00:30:31,120 --> 00:30:35,040 Speaker 1: standard review of disclosure requirement? They've used this for the 531 00:30:35,080 --> 00:30:38,680 Speaker 1: standard it's called exacting scrutiny. What is exacting strudiny mean? 532 00:30:38,760 --> 00:30:42,240 Speaker 1: No one knows exactly, but it's less strict. In strict scrutiny, 533 00:30:42,520 --> 00:30:44,840 Speaker 1: which is the highest standard the court uses in first 534 00:30:44,840 --> 00:30:48,120 Speaker 1: amendment cases. So in strict scrutiny, the government has to 535 00:30:48,120 --> 00:30:51,720 Speaker 1: have a compelling interest and UM, the and the law 536 00:30:51,760 --> 00:30:55,160 Speaker 1: has to be the least restrictive means of attaining that interest. 537 00:30:55,600 --> 00:30:59,800 Speaker 1: With exacting scrutiny. There's got to be an important interest. UH. 538 00:30:59,800 --> 00:31:03,080 Speaker 1: And until today, all that you need, you will you 539 00:31:03,080 --> 00:31:07,680 Speaker 1: need to show is that UM, the requirement UH was 540 00:31:08,000 --> 00:31:13,720 Speaker 1: reasonably related UM to the to the government's interest and 541 00:31:13,760 --> 00:31:16,400 Speaker 1: in this case UH. Now a number of groups have 542 00:31:16,520 --> 00:31:20,360 Speaker 1: sought to change that and to argue that uh, I 543 00:31:20,360 --> 00:31:22,880 Speaker 1: should say, a stantial relationship to change that and to 544 00:31:23,080 --> 00:31:26,920 Speaker 1: and actually to impose a strict scrutiny requirement for disclosure 545 00:31:27,880 --> 00:31:31,280 Speaker 1: on disclosure laws. Court today says, no, we're gonna stick 546 00:31:31,320 --> 00:31:34,960 Speaker 1: with exacting scrutiny, which means which again has to mean 547 00:31:35,320 --> 00:31:39,000 Speaker 1: UM tradicially important government interest. But they have but they 548 00:31:39,040 --> 00:31:43,520 Speaker 1: said they're tightening up the connection between the disclosure requirement 549 00:31:43,520 --> 00:31:48,640 Speaker 1: and that government interest UM, and to go beyond substantial 550 00:31:48,680 --> 00:31:54,880 Speaker 1: relation UH to something more like narrow tailoring, in other words, 551 00:31:54,880 --> 00:31:57,120 Speaker 1: instead of thing that has just got to be a 552 00:31:57,200 --> 00:32:01,800 Speaker 1: good relationship with substantial relationship. UM. So there's a relevance 553 00:32:01,840 --> 00:32:04,880 Speaker 1: between disclosing the names of top downers and the possibility 554 00:32:04,920 --> 00:32:07,920 Speaker 1: of fraud. It's got to be narrowed. It's a legitimate 555 00:32:07,960 --> 00:32:09,880 Speaker 1: that you want to go after fraud, but this has 556 00:32:09,920 --> 00:32:13,320 Speaker 1: to be really pretty closely related to serving the antifraud function. 557 00:32:14,480 --> 00:32:17,320 Speaker 1: And and the course concludes, so that's a tightening up 558 00:32:17,520 --> 00:32:20,920 Speaker 1: of exacting scrutiny. Of course concludes here that the requirement 559 00:32:21,360 --> 00:32:26,480 Speaker 1: of that every charity in California disclosed during the top 560 00:32:26,520 --> 00:32:29,040 Speaker 1: downers in the nine and ninety isn't that narrowly tailored 561 00:32:29,080 --> 00:32:32,720 Speaker 1: to the antifraud function? Uh? California a g had not 562 00:32:32,800 --> 00:32:36,440 Speaker 1: been using these forms in in fraud cases. They were 563 00:32:36,960 --> 00:32:39,400 Speaker 1: requiring them to be disclosed in situations when there was 564 00:32:39,440 --> 00:32:42,960 Speaker 1: no evidence of any fraud. UM. The burden is with 565 00:32:43,120 --> 00:32:46,200 Speaker 1: disproportionate to the game what's in the anti fraud function? 566 00:32:46,680 --> 00:32:50,800 Speaker 1: And so the court strikes it. UM says that California 567 00:32:50,880 --> 00:32:55,600 Speaker 1: cannot impose this requirement. It's a big burden on privacy. UH. 568 00:32:55,600 --> 00:33:01,080 Speaker 1: And although the preventing fraud is an important government goal, UM, 569 00:33:01,200 --> 00:33:04,680 Speaker 1: they didn't it wasn't closely tailored uh to the anti 570 00:33:04,720 --> 00:33:08,480 Speaker 1: fraud goal. UM. A couple of the justices would have 571 00:33:08,520 --> 00:33:12,600 Speaker 1: gone further UH and actually gone beyond exacting student and 572 00:33:12,800 --> 00:33:15,600 Speaker 1: post strict scrutiny, so that part of the court's opinion, 573 00:33:16,040 --> 00:33:20,520 Speaker 1: uh is an opinion. Actually, Chief Justice roberts Um, of 574 00:33:20,560 --> 00:33:23,320 Speaker 1: course there are would have maintained the old exacting scrutiny, 575 00:33:23,400 --> 00:33:26,480 Speaker 1: so uh, they it's not quite clear what the standard 576 00:33:26,560 --> 00:33:30,200 Speaker 1: is now, but it's not the strict scrutiny. Thanks rich 577 00:33:30,520 --> 00:33:34,040 Speaker 1: That's Professor Richard Brafalt of Columbia Law School, and that's 578 00:33:34,040 --> 00:33:36,640 Speaker 1: it for the edition of the Bloomberg Law Show. Remember 579 00:33:36,680 --> 00:33:39,000 Speaker 1: you can always at the latest legal news. Honor Bloomberg 580 00:33:39,120 --> 00:33:42,480 Speaker 1: Law Podcast. You can find them on Apple Podcasts and Spotify. 581 00:33:42,800 --> 00:33:45,040 Speaker 1: I'm June Rosso and you're listening to Bloomberg