Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg.
Speaker 2: Radio Cruiser undertaking the complicated work of removing mangled steel
Speaker 2: and concrete at the site of the deadly collapse of
Speaker 2: Baltimore's Francis Scott Key Bridge after a container ship lost
Speaker 2: power and crashed into a supporting column, killing six workers
Speaker 2: and throwing the Eastern US transportation network into chaos. Officials
Speaker 2: say that in those murky waters, divers can't see a
Speaker 2: foot in front of them, and with all that mangled,
Speaker 2: intertwined steel above and below the water, the site is
Speaker 2: a safety risk. Here's Marylyn, Governor Wes Moore.
Speaker 3: You're looking at three four thousand tons of steel that's
Speaker 3: sitting on top of the ship, and so beginning to
Speaker 3: in sections be able to create that pathway, create open
Speaker 3: channels so we can actually get boats, get tugs inside
Speaker 3: the area.
Speaker 2: And two channels have been opened near the side of
Speaker 2: the collapse bridge to make way for smaller vessels and
Speaker 2: as the crews continue to work. The owner of the
Speaker 2: ship filed a lawsuit on Monday, denying responsibility for the
Speaker 2: collapse and trying to limit its legal liability to forty
Speaker 2: three point seven million dollars the current value of the
Speaker 2: ship and its cargo, in a case that credit rating
Speaker 2: agency Morning Star DBRs predicts could become the most expensive
Speaker 2: marine insured laws in history. Joining me is Michael Stirley,
Speaker 2: a maritime law expert at the University of Texas at
Speaker 2: Austin School of Law. Michael, who do you anticipate will
Speaker 2: be filing lawsuits here?
Speaker 4: The short answer is, anybody who did something wrong is
Speaker 4: likely to be sued here, or anybody who can plausibly
Speaker 4: be claimed to have done something wrong is likely to
Speaker 4: be sued here.
Speaker 2: So of course the victims and the families of the
Speaker 2: victims are going to sue. But what about the state
Speaker 2: or county or whoever for the cost of rebuilding the bridge,
Speaker 2: which could cost experts say four hundred million dollars or more.
Speaker 4: Oh, I'd be surprised if get that small, but I
Speaker 4: read recently that the inflation adjusted value of the original
Speaker 4: construction was roughly twice that. I mean, broadly speaking, you'd
Speaker 4: see claims coming from three main points. You have the
Speaker 4: property damage claims. Anybody whose property was damaged as a
Speaker 4: result of this accident. Most obviously that's going to be
Speaker 4: the owner of the bridge, which understands the state of Maryland,
Speaker 4: so they will certainly be doing The federal government has
Speaker 4: indicated that it's going to be paying the rebuilding costs,
Speaker 4: so they may have the subrogated claims, basically stepping into
Speaker 4: the shoes of the state of Maryland saying we paid
Speaker 4: reimburss Us for what we paid for your your damage.
Speaker 4: They will probably be minor property damage claims. Whatever vehicles
Speaker 4: ended up in the water, you know their owners will
Speaker 4: have property damage claims and relatively mine on the scheme
Speaker 4: of things. Then the second brought category you have as
Speaker 4: the personal injury claims. There were at least two workers
Speaker 4: who went into the water who survived, and then you
Speaker 4: had the six workers who went into the water tragically
Speaker 4: did not survive, So the be wrongful death claims from
Speaker 4: the families of the decedents and that it was only
Speaker 4: be personal injury claims from the two people who survived.
Speaker 4: There may be other people who claim negligent fiction of
Speaker 4: emotional distress who were in the zone of danger and
Speaker 4: suffered mental harm. Broadcasts of personal jury claimants. Typically these
Speaker 4: disasters tend to attract what are called economic laws claimant,
Speaker 4: people whose claims they suffered economic loss as a result
Speaker 4: of this disaster. Typically, those claims do not succeed unless
Speaker 4: the person also suffered some physical injury property damage. So,
Speaker 4: for example, this stake to recover for the economic loss
Speaker 4: and not collecting bridge tolls for the next however many
Speaker 4: years it takes to rebuild the bridge. Because they suffered
Speaker 4: property damage, they can also recover for their econom I'm across,
Speaker 4: but if you have businesses to say I'm getting less
Speaker 4: business because people can't cross the bridge to get to
Speaker 4: my business, you know they're going somewhere else because now
Speaker 4: they're going through the tunnel. But they didn't suffer any damage,
Speaker 4: any physical damage. Those claims are typically dismissed in the
Speaker 4: maritime law. How many people will be in those three categories,
Speaker 4: I don't have enough information, but the ape workers and
Speaker 4: the bridge owner are certainly going to be obvious claims.
Speaker 4: It looks like those woill be the big money amounts.
Speaker 2: So the owner of the ship is trying to limit
Speaker 2: liability to about forty two point seven million dollars and
Speaker 2: they claim that the collapse of the bridge was not
Speaker 2: due to any fault, neglect, or want of care of
Speaker 2: the companies, and they shouldn't be held liable first of all,
Speaker 2: and if they are held liable, then they shouldn't be
Speaker 2: for more than the current value of the ship and cargo.
Speaker 2: This is a common move by ship owners after catastrophic crashes.
Speaker 2: Isn't it tell us about that skewer? I'd say obscure
Speaker 2: for most of US law from eighteen fifty one that
Speaker 2: involves the Titanic.
Speaker 4: Well, I mean eighteen fifty one was obviously what sixty
Speaker 4: some years before the Titanic, although the law was famously
Speaker 4: invoked in the Titanic case. So Congress passed the statute
Speaker 4: in eighteen fifty one designed to encourage investment in shipping.
Speaker 4: Middle of the nineteenth century was before the era when
Speaker 4: the corporate form became common, so it was designed for
Speaker 4: an era when individuals and partnerships generally owned vessels, and
Speaker 4: the idea was that if an individual risked all of
Speaker 4: their assets by investing in the ship, that made it
Speaker 4: a less appealing investment. I mean, you could imagine today
Speaker 4: that if all of the shareholders of BP had to
Speaker 4: chip in to pay for the cost of the BP
Speaker 4: oil spill and the golf, that would make people less
Speaker 4: willing to invest in companies that base those kinds of risks.
Speaker 4: Now the corporate form obviously takes away that risk. You know,
Speaker 4: if you buy shares in BP, the value of your
Speaker 4: share is at risk. But worst case scenario is your
Speaker 4: share value goes down to nothing. You know, the company
Speaker 4: goes into liquidation. But the rest of your assets are
Speaker 4: not subject to those cranes. And what the eighteen fifty
Speaker 4: one Limitation Act essentially does is treat every ship as
Speaker 4: though it were an individual corporation. So if you can imagine,
Speaker 4: you know, suppose that this shipowner, instead of owning this
Speaker 4: ship and other assets as well, owned nothing but the ship,
Speaker 4: and then the ship is in a terrible accident, takes
Speaker 4: out a bridge, facing massive lawsuits. If the ship were
Speaker 4: in fact a single corporation, the corporation with clear bankruptcy
Speaker 4: say that our only asset is the ship. You know,
Speaker 4: total value, you know, forty million dollars. Liquidate the corporation,
Speaker 4: take our assets and distribute them pro rat among the claimants.
Speaker 4: Shareholders lose the value of their investment, but that's the
Speaker 4: extent of it. Essentially, what the Limitation Act does is
Speaker 4: the same thing. It says, even though the shipowner owns
Speaker 4: other assets. It will be allowed to limit its liability
Speaker 4: under circumstances to the value of the asset involved in
Speaker 4: the accident. Now, as you say this is very common,
Speaker 4: I've previously predicted that the chances of a limitation action
Speaker 4: being filed here were somewhere north of ninety nine point
Speaker 4: nine nine percent. It didn't take long for that prediction
Speaker 4: to be to be justified. Chippotas routinely do this, and
Speaker 4: they routinely do it even in circumstances where they know
Speaker 4: they don't qualify for limitation. You know, if you look
Speaker 4: at the look at the BP oil spill again, you
Speaker 4: know Transotion was the owner of the vessel there. They
Speaker 4: filed a limitation petition. The district court held they were
Speaker 4: not taught to limit their liability, but Transition still got
Speaker 4: a major benefit out of doing that. You look at
Speaker 4: the Alfarro disaster, the Bestlona there filed a limitation proceeding. Again,
Speaker 4: they were held not entitled limitation, but they still got
Speaker 4: a benefit. What the limitation action does is centralize all
Speaker 4: the litigation in one court. Now Here, we've got the
Speaker 4: bridge owner a personally claimants that we've got at least
Speaker 4: nine obvious claimants, but for the limitation proceeding, they could
Speaker 4: possibly file in nine different courts, and very likely they
Speaker 4: might be filing in the state court. You know, the
Speaker 4: state of Maryland may well prefer to sue in its
Speaker 4: own courts rather than going to federal court. Personal linjay
Speaker 4: lawyers often prefer state court over federal court, and depending
Speaker 4: on where the eight workers live, they may file in
Speaker 4: eight different state courts. So the vessel owner would be
Speaker 4: in the position of having to defend you nine different suits,
Speaker 4: but all arising out of the same incident, all involving
Speaker 4: the same facts in nine different forms, and having to
Speaker 4: go through everything nine different times, and having the risk
Speaker 4: of inconsistent results. By filing this petition, all of the
Speaker 4: litigation is channeled into the federal District Court for the
Speaker 4: District of Maryland. If you read the petition that inevitably
Speaker 4: includes the boilet plate provision, asking the court to require
Speaker 4: all claims to be filed in that court and enjoining
Speaker 4: litigation anywhere else. So even if they don't get limitations,
Speaker 4: the best of owner at least gets the benefit of,
Speaker 4: at least for the time being, having everything in this
Speaker 4: one court, and what's more, in one court sitting in admiralty,
Speaker 4: which generally means no jury.
Speaker 2: What would plaintiffs have to do in order to overcome
Speaker 2: that liability limit? What do they have to show?
Speaker 4: But they have to show basically that the owner was
Speaker 4: at fault. You know, the statutory language is the falter
Speaker 4: knowledge of the owner. I think there are several limitation
Speaker 4: provisions in maritime law that use somewhat different language falter privity,
Speaker 4: falter knowledge. I think falter knowledge is the language in
Speaker 4: this statue. So they have to show that the owner
Speaker 4: did something wrong. Now, what's a bit unusual. The counterintuitive
Speaker 4: there is that they have to show the personal fault
Speaker 4: of the owner. And of course the owner is a corporation.
Speaker 4: The corporation acts only to its agents. But the way
Speaker 4: the law has been developed, they have to show the
Speaker 4: fault of basically se your management. They have to show
Speaker 4: that shore side management is at fault here, not simply
Speaker 4: that people onboard the vessel did something wrong.
Speaker 2: What about mechanical failure.
Speaker 4: Well, mechanical failure could be a late defect that the
Speaker 4: owner is not it fought for, or it could be
Speaker 4: the result of a failure to maintain the vessel properly,
Speaker 4: which the owner, is it fault? For often when a
Speaker 4: ship loses power, it's some problem with the bunker fuel. Now,
Speaker 4: if it's a problem with the bunker fuel, the owner
Speaker 4: is going to going to bring in the bunker fuel
Speaker 4: supplier and say it's your fault that this happened. But
Speaker 4: the claimants are certainly going to say to the owner,
Speaker 4: you know, you should have taken better care to make
Speaker 4: sure you got good bunker fuel, and then there'll be
Speaker 4: a fight about whether or not the owner was responsible
Speaker 4: for that.
Speaker 2: Is it a difficult hurdle for plaintiffs to overcome this
Speaker 2: liability limit.
Speaker 4: Most limitation actions result in limitation not being granted. So
Speaker 4: most limitations and vessel owners know this, they still file
Speaker 4: the limitation claims to get the benefit of the concursis
Speaker 4: to get the benefit of having all of the claims
Speaker 4: filed in the same court. Even if they don't get limitation,
Speaker 4: they still get a major benefit from the concursives. In
Speaker 4: most cases, the court finds that the owner did something wrong,
Speaker 4: they could have avoided the accident. The owner's management did
Speaker 4: something wrong and therefore they're not entoitled in the liability.
Speaker 4: Whether that happens here is going to depend on what
Speaker 4: the facts are. I certainly don't know enough of the facts,
Speaker 4: and I suspect nobody yet knows enough of the facts
Speaker 4: to know how that's going to play out. But the
Speaker 4: process will continue and the court will figure out whether
Speaker 4: or not the owner did something wrong here.
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
Speaker 2: this conversation with Michael Stirley of the University of Texas
Speaker 2: at Austin's School of Law, and we'll talk about the
Speaker 2: insurance coverage. I'm June Grosso and you're listening to Bloomberg.
Speaker 2: Two channels with different damps have been opened near the
Speaker 2: side of the collapse Francis Scott Keybridge in Baltimore Harbor
Speaker 2: to make way for small vessels. During a briefing today,
Speaker 2: authority said the weather was hindering the work. Brigadier General
Speaker 2: John Lloyd said the divers are working in low visibility
Speaker 2: and hazardous conditions on the bridge wreckage.
Speaker 1: The same complexity and challenges, even more.
Speaker 2: So, are below the water as well.
Speaker 3: And I think that's what's going to make it such
Speaker 3: a challenge in removing this wreckage.
Speaker 1: It's not only what you see above the water, but
Speaker 1: below the water.
Speaker 2: As well. Transportation Secretary Pete Buddha Judge has said there's
Speaker 2: no timeline for reopening the busy port of Baltimore because
Speaker 2: of the complexity of the work.
Speaker 1: It's not just that you have to remove the wreckage,
Speaker 1: it's that you have to do it in a way
Speaker 1: that doesn't cause portions of the bridge that are there
Speaker 1: across the water to shift. They've been under a lot
Speaker 1: of compression and tension. They could behave almost like a
Speaker 1: spring if they are not expertly managed.
Speaker 2: As the recovery continues and parts of the ship remain
Speaker 2: stuck at the sign of the accident, the owner of
Speaker 2: the ship that rammed into the bridge is seeking to
Speaker 2: limit its liability for the accident. The company, Grace Ocean,
Speaker 2: filed a lawsuit in federal court on Monday, claiming the
Speaker 2: collapse of the bridge was not due to any fault, neglect,
Speaker 2: or want of care, and that it shouldn't be held
Speaker 2: liable for any loss or damage from the disaster. But
Speaker 2: if it is held liable, it shouldn't be for more
Speaker 2: than the current value of the ship and its cargo.
Speaker 2: I've been talking to maritime law expert Michael Stirley of
Speaker 2: the University of Texas at Austin School of Law. So
Speaker 2: Bloomberg Intelligence reports that the ship alone has about three
Speaker 2: billion dollars of reinsurance coverage just generally, does reinsurance kick in?
Speaker 2: Does it cover the costs if the owner's suit for
Speaker 2: limited liability fails?
Speaker 4: Well, there are two kinds of insurance that are relevant here.
Speaker 4: A number of news agencies have been reporting that the
Speaker 4: ship had only I think it was ninety million dollars
Speaker 4: of insurance. That's talking about its hullm machinery insurance, which
Speaker 4: they're kind of properly insurance. That's the insurance that the
Speaker 4: vessel owner has to reimburse it if the vessel is
Speaker 4: lost or damage, and the vessel owner is citing that
Speaker 4: in the limitation petition to show what the value of
Speaker 4: the ship is, which is releatant limitation proceding. The insurance
Speaker 4: that you're talking about is liability insurance, which is probably
Speaker 4: the more important insurance here, and that's the insurance that
Speaker 4: the vessel owner has to cover its liabilities if it's
Speaker 4: not liable to a third party. And typically the case
Speaker 4: like this, the vessel will be entered in what's known
Speaker 4: as a P and I club, which is basically a
Speaker 4: kind of mutual insurance company where the vessel owners get
Speaker 4: together and pull their risks. I've read the news reports
Speaker 4: that this vessel was entered with Britannia, one of the
Speaker 4: major P and I clubs, and typically the vessel owner
Speaker 4: will have a certain retention amount what most people would
Speaker 4: think of it as a deductible, So the vesselan will
Speaker 4: be responsible for the first some level I don't know
Speaker 4: what the individually negotiated for each case, say the first
Speaker 4: ten million dollars be the vessel owner's responsibility. Then the
Speaker 4: P and I club will pick up the neck, you know,
Speaker 4: whatever the club is arranged, and then beyond that you
Speaker 4: go into reinsurance. There are about a dozen P and
Speaker 4: I clubs in the world, the International Group of P
Speaker 4: and I Clubs, and they pull the risk among themselves,
Speaker 4: and then beyond that they go into reinsurance in the
Speaker 4: secondary market. If the vessel owner is allowed to limit
Speaker 4: its liability, then the vessel owner and it's P and
Speaker 4: I club will be able to avoid taking advantage of that.
Speaker 4: If they're not god of the limit liability, then you've
Speaker 4: got a big insurance fund that's going to cover a
Speaker 4: lot of the losses here one point to make those
Speaker 4: The limitation, by its terms, permits the vessel owner to
Speaker 4: limit its liability. That has been interpreted to allow both
Speaker 4: the vessel owner and what's known as a bareboat charterer
Speaker 4: to limit liability. A bareboat charter is someone who doesn't
Speaker 4: actually own the vessel, but operates as though they were
Speaker 4: the owner. Sometimes throwing some Latin here called them the
Speaker 4: owner pro hot Beechey. I mean, if you think about
Speaker 4: it in a more familiar consumer context. You know, if
Speaker 4: you buy a car, obviously it's your car, you know
Speaker 4: you own it. But if you lease your car, so
Speaker 4: you get a three year lease, technically you don't own
Speaker 4: the car, but you act like you own the car.
Speaker 4: It's for all intents and purposes, you are operating it
Speaker 4: as though you own the car. That's essentially what a
Speaker 4: bareboat charter is that you have leased the vessel for
Speaker 4: a fixed time period, but you operate it. You do
Speaker 4: all of the you know, you hire the crew, you
Speaker 4: arrange provisions, you make all the decisions, you run up
Speaker 4: like you own it. So the Limitation Act protects the
Speaker 4: owner and that bareboat charterer. This limitation petition claims limitations
Speaker 4: on behalf of both the owner and the vessel manager.
Speaker 4: I will be very curious to see whether the court
Speaker 4: allows the vessel manager to lim a liability that's not
Speaker 4: an obvious obvious beneficiary is a limitation Act. It's interesting
Speaker 4: to see how that plays out.
Speaker 2: Until I started doing research, I didn't realize how many
Speaker 2: maritime accidents there have been in recent years. A dive
Speaker 2: boat caught fire off the coast of southern California in
Speaker 2: twenty nineteen and killed the thirty four pus. So the
Speaker 2: litigation has not yet been resolved there. So are we
Speaker 2: anticipating this is going to take years and years and years.
Speaker 4: I don't know how long it's going to take to
Speaker 4: resolve the Conception Fire case, but yes, there is a
Speaker 4: lot of litigation going on there. The Conception Fire actually
Speaker 4: prompted Congress to amend the Limitation Act for one of
Speaker 4: the very few times in its history. You know, the
Speaker 4: statute was amended after the Titanic. For the most part,
Speaker 4: it hasn't changed a whole lot since eighteen fifty one.
Speaker 4: But in December twenty two, I think it was, Congress
Speaker 4: had a very minor amendment to exclude what it called
Speaker 4: covered small passenger vessels from the scope of the Limitation Act,
Speaker 4: basically to say that the next time that a disaster
Speaker 4: like the conception happens, the vessel owner can't claim the
Speaker 4: benefit of limitation. So every once in a while Congress
Speaker 4: does respond to very high profile accidents when the mandments
Speaker 4: of the Limitation Act.
Speaker 2: And so the case is involving this bridge collapse will
Speaker 2: take years and years.
Speaker 4: I would be surprised if this has resolved quickly, but
Speaker 4: you never know. I mean, most cases in fact settle
Speaker 4: so as we learn more about the accident, that the
Speaker 4: parties learned more about the accident, If it becomes obvious
Speaker 4: that the vessel owner did something wrong, and if it
Speaker 4: fault and won't be allowed to limit liability, then a
Speaker 4: settlement may happen more quickly. I wouldn't be surprised if
Speaker 4: the personal injury claimant end up settling fairly quickly, even
Speaker 4: if the litigation overpaying for the replacement of the bridge
Speaker 4: goes on much longer. In the VP oil spill case,
Speaker 4: for example, there were I think it's there are eleven
Speaker 4: Transocean Workers employees who were killed in the accident. Those
Speaker 4: cases settled very quickly, Transocean took care of its employees
Speaker 4: that didn't need to go into extended litigation. You know,
Speaker 4: the big fight was over who is going to pay
Speaker 4: for the clean up costs, not the personal injury claims.
Speaker 2: I have to say, this is a whole different legal
Speaker 2: area for me. I appreciate your insights. That's Michael Sterley
Speaker 2: of the University of Texas at Austin School of Law,
Speaker 2: coming up next on the Bloomberg Law Show. This year's
Speaker 2: congressional elections in South Carolina will be held under a
Speaker 2: map that a panel of three judges head rule was
Speaker 2: unconstitutional and discriminatory against black voters. Why because the Supreme
Speaker 2: Court hasn't issued a decision in the case, despite the
Speaker 2: fact that oral arguments took place back in October. In
Speaker 2: other legal news today, Donald Trump has sued two co
Speaker 2: founders of his newly public Trump Media and Technology Group,
Speaker 2: claiming they set the company up improperly and shouldn't get
Speaker 2: any stock in it. It's the latest legal skirmish over
Speaker 2: who gets how much of the hot but flailing meme stock.
Speaker 2: Trump alleges that the two violated an agreement about the
Speaker 2: setup and don't deserve their eight point six percent stake,
Speaker 2: currently valued at six hundred and six million dollars. The lawsuit,
Speaker 2: which was filed on March twenty fourth in Florida State Court,
Speaker 2: comes after the pair brought their own suit against the
Speaker 2: former president in Delaware Chancery court over the they are
Speaker 2: promised stake in the social media company. The legal fight
Speaker 2: is playing out amid wild swings in shares of Trump Media,
Speaker 2: which began trading last week after it merged with a
Speaker 2: special purpose acquisition company known as a SPACK. The stock
Speaker 2: dropped twenty one percent on Monday after Trump Media disclosed
Speaker 2: in a securities filing a fifty eight million dollar loss
Speaker 2: and a relative trickle of revenue for twenty twenty three,
Speaker 2: and reiterated a warning that it needed the money from
Speaker 2: the SPACK deal to keep operating. The judge in Delaware
Speaker 2: said he was gobsmacked to learn of Trump's Florida suit,
Speaker 2: which he filed instead of bringing counterclaims against the duo
Speaker 2: in his Delaware courtroom. He also said he'd consider possible
Speaker 2: sanctions against the former president in the Delaware case. I'm
Speaker 2: June Grosso, and you're listening to Bloomberg. This year's congressional
Speaker 2: elections in South Carolina will be held under a map
Speaker 2: that a panel of federal judges found was unconstitutional and
Speaker 2: discriminatory against black voters. The case is in the hands
Speaker 2: of the Supreme Court, which heard oral arguments last October.
Speaker 2: With no decision from the High Court, the failure of
Speaker 2: Republican legislators to redraw the map, and time running out
Speaker 2: ahead of voter deadlines, a federal court ruled that the
Speaker 2: unconstitutional map will be used. Joining me is elections law
Speaker 2: expert Richard Brefald, a professor at Columbia Law School. Rich
Speaker 2: tell us about the history of this case.
Speaker 5: Following the twenty twenty census, the Republican legislature of South
Speaker 5: Carolina redistricted. It didn't need to change the number of seats,
Speaker 5: but they moved them around in order to improve the
Speaker 5: prospects for the Republican Actually its congress from Nancy Mace,
Speaker 5: who represents the District one near Charleston, and what they
Speaker 5: did is they basically made her district more Republican and
Speaker 5: an adjacent district more democratic, and so doing they moved
Speaker 5: a significant number of black voters from her district to
Speaker 5: the adjacent district, District six. That led to a lawsuit
Speaker 5: that this was a form of racial jerryman, that the
Speaker 5: voters were being moved because of their race. That lawsuit
Speaker 5: was brought and the plaintiffs won that case before a
Speaker 5: free judge court in early twenty twenty three. The judge
Speaker 5: director of the legislature's redistrict legislature has been resisting that
Speaker 5: ever since and has taken appeals, and the case was
Speaker 5: actually argued before the Supreme Court in October, six months ago.
Speaker 5: Now Supreme Court had yet to rule on South Carolina's appeal.
Speaker 5: Many thought that that would be decided much earlier, since
Speaker 5: they heard the case fairly early in the term, with
Speaker 5: the legislature not having redistricted in this case having been
Speaker 5: sitting in the Supreme Court now for quite some time.
Speaker 5: The three judge court basically decided it's too late. The
Speaker 5: period for people filing to become candidates in the primary
Speaker 5: had already opened. In fact, I think it's already closed
Speaker 5: by now. There's soon going to be the deadline sometime
Speaker 5: in April for sending out military and overseas ballots. And
Speaker 5: the fort basically said, although the ideal would be to
Speaker 5: go forth, because they did hold the current lines unlawful,
Speaker 5: going back to the start of twenty twenty three, they said,
Speaker 5: given the fact that the litigation hasn't been resolved the
Speaker 5: Supreme Court, the legilature hasn't done anything yet, it's too
Speaker 5: late for this year. So although we don't like it,
Speaker 5: we are going to allow the elections to go forward
Speaker 5: under the old rules that the Court had said we're
Speaker 5: in constitutionalize as a racial cherry mander.
Speaker 2: So the Court said they're going to now use the
Speaker 2: maps that were declared unconstitutional. Is there anything else this
Speaker 2: court could have done to avoid that?
Speaker 5: Well, I guess they could have appointed a special master
Speaker 5: and actually drawn the lines themselves. I think their feeling was,
Speaker 5: you know, we will know eventually from the Supreme Court
Speaker 5: whether these are good lines or not. And it is
Speaker 5: beginning to get close to the election. And I think
Speaker 5: the problem is the case began blending its way to
Speaker 5: the Supreme Court about a year ago. They actually had
Speaker 5: that oral argument, as I said, six months ago. It's
Speaker 5: just taken a huge amount of time to move forward,
Speaker 5: and no one really quite understands why it's been delayed
Speaker 5: so long in the Supreme Court, especially since I think
Speaker 5: many observers felt that South Carolina actually did reasonably well,
Speaker 5: in the urga, it's hard to tell the Supreme Court
Speaker 5: is going to affirm the lower court or not, And
Speaker 5: in any event, the state has effectively won, at least
Speaker 5: for this year. Even if the Supreme Court affirms, the
Speaker 5: Court agrees that the lines are un constitutional, those lines
Speaker 5: are going to be used for the twenty twenty four election.
Speaker 2: Both the state and the civil rights groups who were
Speaker 2: challenging the map had asked the Supreme Court to issue
Speaker 2: a decision by January first, so they could prepare for
Speaker 2: the upcoming elections. Is this the first time or have
Speaker 2: there been other times when the Supreme Court has not
Speaker 2: been acting particularly fast and has allowed maps that have
Speaker 2: been declared unconstitutional to be used.
Speaker 5: Well, I think that's what happened actually with the Alabama
Speaker 5: at agation, where the Supreme Court stayed a lower court
Speaker 5: decision holding a plan highlight Soavotian Rights Act. The Supreme
Speaker 5: Court stayed that and then more than a year later,
Speaker 5: finally actually decided the case and actually said that the
Speaker 5: lower court had been correct. At that point, the map
Speaker 5: was changed, but in the meantime an election had been
Speaker 5: held under the map, which the lower court had felt
Speaker 5: was illegal. But the Supreme Court had stayed for consider
Speaker 5: period of time so that they could decide the case,
Speaker 5: so that effectly the twenty twenty two election.
Speaker 2: It just boggles the mind that in a case like
Speaker 2: this they can't get a decision out. Although I mean,
Speaker 2: the Supreme Court has been handing out decisions more slowly
Speaker 2: as of late.
Speaker 5: This does seem to have been one of the slowest years.
Speaker 5: The people who keep track of this and have said
Speaker 5: that they got off to the slowest start of any
Speaker 5: year in a very long time, and they've still issued
Speaker 5: relatively few opinions.
Speaker 2: So we had the Alabama case where the Court came
Speaker 2: out with a ruling that was favorable to the challengers,
Speaker 2: but yet, as you say, in the oral arguments, it
Speaker 2: seemed like it was going against the challengers in South Carolina.
Speaker 2: Explain the difference between the two cases.
Speaker 5: The issue in this case really has more to do
Speaker 5: with how do you disentangle racial jerry mandering from partisan jerrymandering.
Speaker 5: Kind of the central issue in this case is the
Speaker 5: publican legislature in South Carolina is happy to say that
Speaker 5: what they did was a partisan jerrymander because even the
Speaker 5: Supreme Court's decision a few years ago. Partisan jerrymandering cannot
Speaker 5: be challenged. It's non justiciable. It's not on constitutional, according
Speaker 5: to the Supreme Court. But racial jerry mannering is, and
Speaker 5: all fund the two were closely connected. If you're moving
Speaker 5: a big block of black voters who happened to be Democrats,
Speaker 5: or Democratic voters who happened to be black, there's a
Speaker 5: debate as to what exactly the state is doing. The
Speaker 5: Low Court here concluded that, based on a variety of factors,
Speaker 5: it was better characterized as a racial gerry mander. The
Speaker 5: issue in Alabama was differently complicated in that there the
Speaker 5: state was using a basic configuration of how to draw
Speaker 5: districts in the state that they've been using for some time.
Speaker 5: They may just minor changes from one the census to
Speaker 5: the next, but was not a conscious or an obvious
Speaker 5: effort in the twenty twenty redistricting. But the plainters were
Speaker 5: able to show that the district things structure that the
Speaker 5: state had been using for several decades discriminated against black
Speaker 5: voters because of the way the districts were drawn, and
Speaker 5: although you couldn't show that the state intended to do this,
Speaker 5: they were able to present alternative maps which were just
Speaker 5: as straightforward, you know, no more convoluted, no more you know,
Speaker 5: odd shapes than the map being used. We should provide
Speaker 5: fair representation for black voters. So that case was very
Speaker 5: much about what does fair representation require for minority voters?
Speaker 5: And this case was really about whether or not the
Speaker 5: discrimination going on here was racial or partisan.
Speaker 2: So this ruling came a day after a different federal
Speaker 2: court upheld a congressional map in Florida that favors Republicans
Speaker 2: and raises a seat held by a black Democrat. Just
Speaker 2: explain what happened there.
Speaker 5: Again, I think it was a similar question of whether
Speaker 5: or not this was race or party, and they concluded
Speaker 5: it was party, and when it's party, it's you know,
Speaker 5: this may sound really weird to people. First, the whole
Speaker 5: idea of race versus party, that they're different and that
Speaker 5: they can be disentangled, but that partisan gerry mandering can't
Speaker 5: be challenged and racial gerry mandering can be. And so
Speaker 5: much turns on how you're going to characterize what exactly happened.
Speaker 5: And you know, those can be hard questions as to
Speaker 5: whether or not it's racer party, even that they're often connected.
Speaker 2: Often it seems like they're inextricable, but so Also on Thursday,
Speaker 2: a federal appeals court issued a ruling that all but
Speaker 2: insures North Carolina will use state legislative maps this fall
Speaker 2: that have been challenged.
Speaker 5: They basically again decided, following a lower court decision, that
Speaker 5: they would not block the maps. Those were maps that
Speaker 5: were adopted by the Republican legislature in the fall and
Speaker 5: a Voting Rights Act claim was brought. And I think
Speaker 5: in some ways what's happened is that they basically decided
Speaker 5: they wouldn't block it for now. You again, some of
Speaker 5: these things come up on motions for conjunctions. In other words,
Speaker 5: given that the election is coming soon, flink just want
Speaker 5: to stop the new law from taking effect and then
Speaker 5: hold the trial. And the state is saying, well, no,
Speaker 5: the law. Ca'm going to think you can have a
Speaker 5: trial later. Then we can change it later if you
Speaker 5: find it's unlawful.
Speaker 2: And voting rights advocates say that's too late, because you
Speaker 2: can't change the vote.
Speaker 5: There is this thing known as the per Cell principle,
Speaker 5: the idea that you shouldn't be changing the rules governing
Speaker 5: an election too to the election. No one knows when
Speaker 5: is it too close to an election, But we're probably
Speaker 5: being to get there at least for primaries, even if
Speaker 5: some of the earlier action in a case they have
Speaker 5: taken place months ago. You know. I think in this case,
Speaker 5: in the North Carolina case, there was a decision going
Speaker 5: back to January twenty three. It's just took you a
Speaker 5: long time for it to kind of prokly through the system.
Speaker 2: Are states here basically trying to run out the clock?
Speaker 5: I think they often do. I mean they often basically say, well,
Speaker 5: no preliminary injunction, no emergency motions please, And then as
Speaker 5: they continue to bring appeals that will delay things, there
Speaker 5: may eventually be a trial, and then there may eventually
Speaker 5: be an appeal to a trial, and the appeal may
Speaker 5: actually get decided. And that's kind of what happened in Alabama.
Speaker 5: But just sometimes they do seem to be stretching it
Speaker 5: all out in delay and delay and delay.
Speaker 2: So these decisions, along with others in recent months, does
Speaker 2: that mean that the congressional maps for twenty twenty four
Speaker 2: are largely set?
Speaker 5: I think that's right. I think that the litigate is
Speaker 5: now just about done. We are into April. Many states
Speaker 5: already had their primaries. I think there are probably no
Speaker 5: primaries later than June, or at least not many. I
Speaker 5: think we're getting very late in the season and we're
Speaker 5: probably done.
Speaker 2: I want to get your reaction to a political article
Speaker 2: that said that Republicans came out ahead in the battle
Speaker 2: to control the House in twenty twenty four thanks to
Speaker 2: the redistricting aggression of North Carolina Republicans and the timidity
Speaker 2: of New York Democrats.
Speaker 3: Yeah.
Speaker 5: I think there's a lot to be said for that.
Speaker 5: Maybe a little defensive of the New York Democrats. They
Speaker 5: had a tough situation, but yes, North Carolina did a
Speaker 5: very sharp gerry mander and basically moved three seats from
Speaker 5: the Democratic to the Republican column, which is huge. The
Speaker 5: problem in New York is that New York does have
Speaker 5: this independent redistricting Commission and this redistricting process that the
Speaker 5: state adopted in the twenty tens and which was used
Speaker 5: for the first time in twenty twenty two, and the
Speaker 5: state failed to do it right, according to the New
Speaker 5: York State's highest court, leading to the appointment of the
Speaker 5: Special Master, who came up with a plan that was
Speaker 5: fairly favorable to Republicans. The Democrats got a second shot
Speaker 5: of this by persuading the quart of Appeals that they
Speaker 5: had a right to try again. But I think they
Speaker 5: were a kind of gun shy based on what happened
Speaker 5: the first time, and they did not want to make
Speaker 5: an aggressive move to seriously change what was done in
Speaker 5: twenty twenty two, so they tinkered. And my understanding from
Speaker 5: the more political people is probably mostly might have affected
Speaker 5: the outcome in one district. Mostly it seems to me
Speaker 5: that they were kind of protecting Democrats who were in
Speaker 5: vulnerable districts, and they have recalculated one of the districts
Speaker 5: that which went narrowly Republican last time in a way
Speaker 5: that makes it even more truly even. But it seems
Speaker 5: as though it's, you know that based on redistricting, it's
Speaker 5: not clearly with the any Democratic pickups in New York
Speaker 5: or at most one. At one point Democrats were thinking
Speaker 5: optimistically they could be three, four or five. So there
Speaker 5: was definitely a loss of three seats in North Carolina,
Speaker 5: not clear that there was any game in New York.
Speaker 5: The Alabama was probably a pickup because of the redistricting there. Again,
Speaker 5: so if we're just talking about maps, I think the
Speaker 5: remapping was marginally pro Republican.
Speaker 2: Adam Kinkaid, the executive director of the National Republican Redistricting Trust,
Speaker 2: toll Politico. It's a marginally more favorable map in twenty
Speaker 2: four than we even had in twenty two.
Speaker 5: That sounds about right, That sounds about right now. Of course,
Speaker 5: twenty two was an election where many people thought the
Speaker 5: Republicans were going to do really well, and although they
Speaker 5: did take the House, they took it much more narrowly
Speaker 5: than had been predicted. Much will turn on, of course,
Speaker 5: the presidential election. You know, we're's still six months out
Speaker 5: from that or more so. No one knows how that's
Speaker 5: going to go. And turnout us often different in presidential
Speaker 5: election years than in off years. So the Republicans, I think,
Speaker 5: were hoping for a lot in twenty two. They won,
Speaker 5: but they'd won more narrowly than people had expected. They
Speaker 5: may be slightly better off now, but the presidential election
Speaker 5: will matter for a lot, and maybe the kind of
Speaker 5: the messiness of the Republican Congress will matter for something too.
Speaker 2: It's going to be a long seven months, that's for sure.
Speaker 2: Thanks so much, rich that's Professor Richard Ruffald of Columbia
Speaker 2: Law School. And that's it for this edition of the
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