1 00:00:01,760 --> 00:00:04,520 Speaker 1: You're listening the Bloomberg Law. I'm Greg Store in our 2 00:00:04,600 --> 00:00:08,800 Speaker 1: Washington Point one Studios. We're talking about the biggest legal 3 00:00:08,800 --> 00:00:12,760 Speaker 1: issues of in America's voting laws were front and center 4 00:00:12,840 --> 00:00:15,040 Speaker 1: during the year, both in the courtroom and on the 5 00:00:15,080 --> 00:00:18,639 Speaker 1: campaign trail. In the name of fighting fraud, Republicans backed 6 00:00:18,640 --> 00:00:21,240 Speaker 1: photo ID requirements and other rules that made it harder 7 00:00:21,280 --> 00:00:25,520 Speaker 1: for many people, particularly racial minorities, to vote. Donald Trump 8 00:00:25,560 --> 00:00:29,400 Speaker 1: fueled the fire, claiming the system was stacked against him. 9 00:00:29,560 --> 00:00:32,400 Speaker 1: They even want to try to rig the election at 10 00:00:32,400 --> 00:00:34,760 Speaker 1: the polling booths. And believe me, there's a lot going on. 11 00:00:34,800 --> 00:00:36,760 Speaker 1: Do you ever hear these people, They say, there's nothing 12 00:00:36,800 --> 00:00:39,800 Speaker 1: going on. People that have died ten years ago is 13 00:00:39,800 --> 00:00:46,440 Speaker 1: still voting, Illegal immigrants are voting. Democrats, including President Obama, 14 00:00:46,600 --> 00:00:49,840 Speaker 1: said there was no evidence that sort of fraud was widespread, 15 00:00:50,720 --> 00:00:54,000 Speaker 1: and this whole notion of voter fraud. Listen. One study 16 00:00:54,040 --> 00:00:57,200 Speaker 1: shows that out of one billion votes cast, there were 17 00:00:57,600 --> 00:01:01,120 Speaker 1: exactly there. There were thirty one proven cases of voter 18 00:01:01,200 --> 00:01:04,160 Speaker 1: from thirty one out of a billion. You are luckier. 19 00:01:04,640 --> 00:01:07,600 Speaker 1: You You are much likelier to get struck by lightning 20 00:01:07,920 --> 00:01:10,240 Speaker 1: than they have. Somebody next to you commit voter froll 21 00:01:11,600 --> 00:01:13,640 Speaker 1: with us to talk about this big year in election 22 00:01:13,720 --> 00:01:17,440 Speaker 1: law is Rebecca Green, professor William and Mary Law School, 23 00:01:17,440 --> 00:01:20,360 Speaker 1: who co directs the election law program there and once 24 00:01:20,400 --> 00:01:23,480 Speaker 1: again in our ninety nine point one studios Kimberly Robinson 25 00:01:23,520 --> 00:01:27,160 Speaker 1: of Bloomberg, B and A. Kimberly, arguably the biggest court 26 00:01:27,240 --> 00:01:30,200 Speaker 1: ruling of the year came in a case involving North 27 00:01:30,240 --> 00:01:35,440 Speaker 1: Carolina's voting restrictions. Give us a quick synopsis of that place. Well, 28 00:01:35,440 --> 00:01:38,080 Speaker 1: this is really an extraordinary decision. I think the important 29 00:01:38,120 --> 00:01:39,720 Speaker 1: thing to keep in the back of your mind when 30 00:01:39,840 --> 00:01:41,800 Speaker 1: I'm talking about this case is the fact that race 31 00:01:42,280 --> 00:01:45,959 Speaker 1: and pull voting are very much correlated in the South, 32 00:01:46,040 --> 00:01:48,120 Speaker 1: especially in North Carolina. So it turns out that most 33 00:01:48,240 --> 00:01:52,600 Speaker 1: minorities tend to vote democratically. A court here struck down 34 00:01:53,080 --> 00:01:57,200 Speaker 1: UH North Carolina's voter ID laws and some other restrictions 35 00:01:57,640 --> 00:02:01,560 Speaker 1: that it said has had a surgery really UH singled 36 00:02:01,600 --> 00:02:05,160 Speaker 1: out Africans, African Americans, and it was extraordinary because there 37 00:02:05,160 --> 00:02:07,840 Speaker 1: are really two ways that a court can strike down 38 00:02:08,160 --> 00:02:10,320 Speaker 1: UH some of these voting restrictions. One is if the 39 00:02:10,360 --> 00:02:15,240 Speaker 1: effect has a discriminate or discriminant or discriminatory purpose. Um 40 00:02:15,320 --> 00:02:18,440 Speaker 1: that the other is the intent of the legislature is 41 00:02:18,480 --> 00:02:21,800 Speaker 1: to discriminate against minorities. And that final one is what 42 00:02:21,919 --> 00:02:25,000 Speaker 1: the court here said that, you know, the legislature really 43 00:02:25,040 --> 00:02:31,680 Speaker 1: intended to disenfranchise minority voters. Rebecca, in the Supreme Court 44 00:02:31,800 --> 00:02:35,120 Speaker 1: upheld Indiana's voter I D law. And now we've got 45 00:02:35,120 --> 00:02:37,320 Speaker 1: this North Carolina case. There are a couple other rulings 46 00:02:37,320 --> 00:02:41,040 Speaker 1: out of Texas and Wisconsin where laws were either thrown 47 00:02:41,040 --> 00:02:44,480 Speaker 1: out or are soften. What is going on that has 48 00:02:44,880 --> 00:02:50,400 Speaker 1: prompted this change from so the case you're referring to 49 00:02:50,600 --> 00:02:54,440 Speaker 1: is called Crawford, and in that case, the court essentially 50 00:02:54,560 --> 00:02:59,360 Speaker 1: said that, uh, that the state had a perfectly valid 51 00:02:59,400 --> 00:03:04,960 Speaker 1: interest in requiring photo identification to vote. But in that case, 52 00:03:05,040 --> 00:03:09,040 Speaker 1: the plaintiffs didn't mount any significant evidence to show that 53 00:03:09,120 --> 00:03:13,760 Speaker 1: the photo idea requirement how to discriminatory impact and courts 54 00:03:13,760 --> 00:03:16,800 Speaker 1: since Crawford, or I should say plaintiffs, since Crawford, has 55 00:03:16,880 --> 00:03:20,520 Speaker 1: spent a lot more time gathering evidence to show that 56 00:03:20,600 --> 00:03:25,520 Speaker 1: the impact of these laws hit minorities harder. So that's 57 00:03:25,560 --> 00:03:28,280 Speaker 1: that's sort of been the change since the two thousand 58 00:03:28,360 --> 00:03:30,800 Speaker 1: eight ruling. Kimberly, what do we know about where the 59 00:03:30,800 --> 00:03:33,600 Speaker 1: Supreme Court stands. Now we we we talked earlier about 60 00:03:33,960 --> 00:03:37,040 Speaker 1: the Texas voter ID cases is up at the Supreme Court. 61 00:03:37,080 --> 00:03:38,560 Speaker 1: The Court could say in the next few weeks whether 62 00:03:38,600 --> 00:03:41,080 Speaker 1: it's gonna going to take that case. What do we 63 00:03:41,080 --> 00:03:45,040 Speaker 1: know about the the eight current justices on this issue. Well, 64 00:03:45,080 --> 00:03:48,480 Speaker 1: you know, they have been asked occasionally to intervene in 65 00:03:48,480 --> 00:03:52,360 Speaker 1: these cases to stay lower court decisions. They largely stayed 66 00:03:52,400 --> 00:03:54,680 Speaker 1: out of the fight. It seems as if, you know, 67 00:03:54,720 --> 00:03:57,400 Speaker 1: they might be trying to steer clear of this issue. 68 00:03:57,800 --> 00:04:00,360 Speaker 1: But the lower courts have been coming to some inconsistant 69 00:04:00,440 --> 00:04:02,520 Speaker 1: rulings and maybe that the Supreme Court's hand is going 70 00:04:02,560 --> 00:04:05,240 Speaker 1: to be is going to be pushed to expect to 71 00:04:05,520 --> 00:04:08,680 Speaker 1: accept one of these cases. And we'll know more then, Rebecca, 72 00:04:08,720 --> 00:04:11,720 Speaker 1: I want to talk about the issue of partisan gerrymandering. 73 00:04:11,760 --> 00:04:14,360 Speaker 1: There is a big court case out of Wisconsin. Can 74 00:04:14,400 --> 00:04:18,159 Speaker 1: you just tell us about that and what the significance is. Sure, 75 00:04:18,320 --> 00:04:21,880 Speaker 1: so courts have struggled with this issue of partisan gerrymandering. 76 00:04:22,160 --> 00:04:24,839 Speaker 1: It doesn't seem right that a political party and power 77 00:04:24,880 --> 00:04:27,680 Speaker 1: should be able to retain power by carving up districts 78 00:04:27,720 --> 00:04:32,000 Speaker 1: to its own advantage. But so long as legislatures have 79 00:04:32,160 --> 00:04:35,960 Speaker 1: authority to draw lines, um, you know, partisans ship is 80 00:04:36,000 --> 00:04:38,440 Speaker 1: going to be part of the process. So the problem 81 00:04:38,520 --> 00:04:43,040 Speaker 1: is determining when is partisanship excessive in the line drawing process. 82 00:04:43,120 --> 00:04:46,280 Speaker 1: And the Supreme Court really hasn't settled on the satisfactory 83 00:04:46,320 --> 00:04:50,280 Speaker 1: way to measure when partisanship becomes excessive. And that's why 84 00:04:50,320 --> 00:04:54,640 Speaker 1: this Wisconsin ruling called Whitford h seems so promising because 85 00:04:55,279 --> 00:04:58,000 Speaker 1: it provides a way to measure excessive line drawing by 86 00:04:58,080 --> 00:05:02,480 Speaker 1: using mass of all things. So um. The theory that 87 00:05:02,760 --> 00:05:06,360 Speaker 1: the case adopts is called the efficiency gap theory, which is, 88 00:05:06,640 --> 00:05:09,960 Speaker 1: without getting too technical, a way to measure the number 89 00:05:10,000 --> 00:05:13,360 Speaker 1: of wasted votes in a district. So if a candidate, 90 00:05:13,400 --> 00:05:17,719 Speaker 1: for example, would need only fifty of the votes plus 91 00:05:17,800 --> 00:05:20,599 Speaker 1: one to win, um, if you have a district, say 92 00:05:20,680 --> 00:05:23,960 Speaker 1: where the candidate wins by then you have quite a 93 00:05:23,960 --> 00:05:28,200 Speaker 1: few wasted votes. And so what this what this measure 94 00:05:28,320 --> 00:05:31,840 Speaker 1: does is essentially take the number of wasted votes uh 95 00:05:31,839 --> 00:05:34,640 Speaker 1: and divided by the number of total those casts and 96 00:05:34,640 --> 00:05:37,800 Speaker 1: and from that you get um uh. From that you 97 00:05:37,880 --> 00:05:40,360 Speaker 1: get you come up with a percentage. And the plaintiffs 98 00:05:40,360 --> 00:05:43,000 Speaker 1: in that case basically said, if the percentage is over 99 00:05:43,000 --> 00:05:47,480 Speaker 1: a certain threshold, UM, this provides evidence of excessive partisanship 100 00:05:47,520 --> 00:05:50,360 Speaker 1: in line drawing. It's important to note that that's not 101 00:05:50,400 --> 00:05:53,600 Speaker 1: the end of the analysis. That once that threshold has 102 00:05:53,640 --> 00:05:56,440 Speaker 1: been crossed, the court would then look at the process 103 00:05:56,480 --> 00:05:59,400 Speaker 1: itself for red flags like, for example, it's the opposing 104 00:05:59,440 --> 00:06:01,680 Speaker 1: political are you shut out of the process, or if 105 00:06:01,680 --> 00:06:07,200 Speaker 1: it wasn't transparent. Um. So it's a very Rebecca, Rebecca, 106 00:06:07,279 --> 00:06:08,560 Speaker 1: let me ask you about the impact of it. What 107 00:06:08,560 --> 00:06:13,200 Speaker 1: do you think So if this this theory uh gets 108 00:06:13,200 --> 00:06:18,279 Speaker 1: adopted by the Supreme Court? Uh, what kind of constraints 109 00:06:18,360 --> 00:06:20,520 Speaker 1: is that going to put on on legislatures that are 110 00:06:20,520 --> 00:06:24,159 Speaker 1: trying to draw the lines to keep themselves in power. 111 00:06:25,200 --> 00:06:28,200 Speaker 1: So I think that they're going to start spending time 112 00:06:28,279 --> 00:06:32,000 Speaker 1: thinking about the that that threshold and whether or not 113 00:06:32,120 --> 00:06:35,480 Speaker 1: they are purposely in effect wasting votes. I think they'll 114 00:06:35,520 --> 00:06:38,880 Speaker 1: also take great care with the process itself to make 115 00:06:38,880 --> 00:06:41,359 Speaker 1: sure that if that threshold is passed by the numbers, 116 00:06:41,360 --> 00:06:43,599 Speaker 1: that that that they can sort of win on the 117 00:06:43,640 --> 00:06:47,359 Speaker 1: merits of having an open and fair process. Um. But 118 00:06:47,400 --> 00:06:51,000 Speaker 1: it's hard to say, um, you know how much this 119 00:06:51,080 --> 00:06:53,279 Speaker 1: can be gamed because although it feels nice to have 120 00:06:53,320 --> 00:06:57,920 Speaker 1: a mathematical formula. In practices is often a lot more messy. 121 00:06:58,560 --> 00:07:01,919 Speaker 1: Can really you think that does this? Uh seem like 122 00:07:01,960 --> 00:07:04,839 Speaker 1: it has the potential to to swathe the Supreme Court 123 00:07:04,880 --> 00:07:06,960 Speaker 1: in particular. Justice Kennedy has been the one who's at 124 00:07:07,000 --> 00:07:09,920 Speaker 1: the center of this issue. Well. I think this is 125 00:07:10,000 --> 00:07:12,360 Speaker 1: it's highly likely that this case will be heard by 126 00:07:12,360 --> 00:07:14,720 Speaker 1: the Supreme Court. And that's because these redistricting cases are 127 00:07:14,760 --> 00:07:17,640 Speaker 1: somewhat special and that you know, they kind of have 128 00:07:17,640 --> 00:07:20,240 Speaker 1: an automatic appeal to the Supreme Court, unlike the other 129 00:07:20,280 --> 00:07:22,360 Speaker 1: cases that the Court can just turn away and they 130 00:07:22,400 --> 00:07:25,520 Speaker 1: don't have any any value beyond that um. And in 131 00:07:25,520 --> 00:07:27,320 Speaker 1: a case like this, if the justices were to turn 132 00:07:27,360 --> 00:07:29,680 Speaker 1: it away, it would it would mean something more than 133 00:07:29,720 --> 00:07:32,320 Speaker 1: in the other cases. Uh. And I think instead of 134 00:07:32,560 --> 00:07:34,800 Speaker 1: just turning it away without saying anything, I do think 135 00:07:34,840 --> 00:07:36,160 Speaker 1: the Supreme Court is going to want to wag in 136 00:07:36,200 --> 00:07:38,240 Speaker 1: on on such a big issue that they've been struggling 137 00:07:38,240 --> 00:07:40,560 Speaker 1: with in the past. Rebecca, let me ask you just 138 00:07:40,640 --> 00:07:44,400 Speaker 1: a broader questions you look back on so much happened 139 00:07:45,000 --> 00:07:48,400 Speaker 1: this year, both the cases we're talking about, uh, the 140 00:07:48,480 --> 00:07:52,600 Speaker 1: allegations of of a rigged election, Um, you know, talk 141 00:07:52,720 --> 00:07:56,040 Speaker 1: of the electoral college and and faithless electors who might 142 00:07:56,120 --> 00:07:58,880 Speaker 1: or might not vote for for Donald Trump. What do 143 00:07:58,920 --> 00:08:01,400 Speaker 1: you think is that the big message of the big 144 00:08:01,520 --> 00:08:07,440 Speaker 1: takeaway from this this year in election law? Yeah? So um. 145 00:08:07,520 --> 00:08:09,360 Speaker 1: For me, as I sort of looked back at it all, 146 00:08:09,440 --> 00:08:12,640 Speaker 1: I think what is clear is the fragility of public 147 00:08:12,680 --> 00:08:16,520 Speaker 1: confidence in our elections. You know, elections only work if 148 00:08:16,520 --> 00:08:19,360 Speaker 1: the public has confidence in the outcome. Um. And that 149 00:08:19,480 --> 00:08:23,160 Speaker 1: confidence was under explicit attack in two thousand sixteen, as 150 00:08:23,200 --> 00:08:27,160 Speaker 1: your opening clip sort of demonstrated. We have a long history, 151 00:08:27,160 --> 00:08:30,240 Speaker 1: of course of the losing side alleging fraud in elections, 152 00:08:30,280 --> 00:08:32,720 Speaker 1: but this year felt very different that we had the 153 00:08:32,760 --> 00:08:35,959 Speaker 1: integrity of the election being called into the question before 154 00:08:36,800 --> 00:08:41,440 Speaker 1: election day. Uh. That said, what's extraordinary extraordinary also about 155 00:08:41,480 --> 00:08:44,480 Speaker 1: two thousand sixteen is how smoothly the election actually went. 156 00:08:45,559 --> 00:08:49,679 Speaker 1: Before the election, voting rates advocates were bracing for widespread 157 00:08:49,720 --> 00:08:52,280 Speaker 1: problems at the polls, but as it happened, um, with 158 00:08:52,400 --> 00:08:56,520 Speaker 1: few few exceptions, Uh, the election proceeded without major incident. 159 00:08:57,360 --> 00:09:00,720 Speaker 1: So I think the challenge going forward is figuring out 160 00:09:00,760 --> 00:09:03,680 Speaker 1: how to shore up public confidence in our elections. Some 161 00:09:03,840 --> 00:09:07,280 Speaker 1: think the way to do this is to tighten election rules. Um. 162 00:09:07,280 --> 00:09:09,560 Speaker 1: Others see this tightening as a pretext a way to 163 00:09:09,559 --> 00:09:12,319 Speaker 1: restrict certain people from accessing the ballot. So figuring out 164 00:09:12,360 --> 00:09:14,920 Speaker 1: how to navigate between those two perspectives seems to be 165 00:09:14,960 --> 00:09:17,240 Speaker 1: the difficult task ahead. We are going to have to 166 00:09:17,320 --> 00:09:19,400 Speaker 1: leave it there. I want to thank our guests Rebecca 167 00:09:19,480 --> 00:09:22,840 Speaker 1: Green of William and Mary Law School and Kimberly Robinson 168 00:09:22,960 --> 00:09:26,480 Speaker 1: of Bloomberg b NA. Coming up, we're going to talk 169 00:09:26,480 --> 00:09:31,720 Speaker 1: about the year in financial regulation and securities law. That 170 00:09:31,800 --> 00:09:34,680 Speaker 1: will be a big topic for our listeners and it 171 00:09:34,760 --> 00:09:37,360 Speaker 1: has to do with some major banks. You're listening to 172 00:09:37,400 --> 00:09:39,800 Speaker 1: Bloomberg Law. This is Bloomberg