Speaker 1: You're listening the Bloomberg Law. I'm Greg Store in our
Speaker 1: Washington Point one Studios. We're talking about the biggest legal
Speaker 1: issues of in America's voting laws were front and center
Speaker 1: during the year, both in the courtroom and on the
Speaker 1: campaign trail. In the name of fighting fraud, Republicans backed
Speaker 1: photo ID requirements and other rules that made it harder
Speaker 1: for many people, particularly racial minorities, to vote. Donald Trump
Speaker 1: fueled the fire, claiming the system was stacked against him.
Speaker 1: They even want to try to rig the election at
Speaker 1: the polling booths. And believe me, there's a lot going on.
Speaker 1: Do you ever hear these people, They say, there's nothing
Speaker 1: going on. People that have died ten years ago is
Speaker 1: still voting, Illegal immigrants are voting. Democrats, including President Obama,
Speaker 1: said there was no evidence that sort of fraud was widespread,
Speaker 1: and this whole notion of voter fraud. Listen. One study
Speaker 1: shows that out of one billion votes cast, there were
Speaker 1: exactly there. There were thirty one proven cases of voter
Speaker 1: from thirty one out of a billion. You are luckier.
Speaker 1: You You are much likelier to get struck by lightning
Speaker 1: than they have. Somebody next to you commit voter froll
Speaker 1: with us to talk about this big year in election
Speaker 1: law is Rebecca Green, professor William and Mary Law School,
Speaker 1: who co directs the election law program there and once
Speaker 1: again in our ninety nine point one studios Kimberly Robinson
Speaker 1: of Bloomberg, B and A. Kimberly, arguably the biggest court
Speaker 1: ruling of the year came in a case involving North
Speaker 1: Carolina's voting restrictions. Give us a quick synopsis of that place. Well,
Speaker 1: this is really an extraordinary decision. I think the important
Speaker 1: thing to keep in the back of your mind when
Speaker 1: I'm talking about this case is the fact that race
Speaker 1: and pull voting are very much correlated in the South,
Speaker 1: especially in North Carolina. So it turns out that most
Speaker 1: minorities tend to vote democratically. A court here struck down
Speaker 1: UH North Carolina's voter ID laws and some other restrictions
Speaker 1: that it said has had a surgery really UH singled
Speaker 1: out Africans, African Americans, and it was extraordinary because there
Speaker 1: are really two ways that a court can strike down
Speaker 1: UH some of these voting restrictions. One is if the
Speaker 1: effect has a discriminate or discriminant or discriminatory purpose. Um
Speaker 1: that the other is the intent of the legislature is
Speaker 1: to discriminate against minorities. And that final one is what
Speaker 1: the court here said that, you know, the legislature really
Speaker 1: intended to disenfranchise minority voters. Rebecca, in the Supreme Court
Speaker 1: upheld Indiana's voter I D law. And now we've got
Speaker 1: this North Carolina case. There are a couple other rulings
Speaker 1: out of Texas and Wisconsin where laws were either thrown
Speaker 1: out or are soften. What is going on that has
Speaker 1: prompted this change from so the case you're referring to
Speaker 1: is called Crawford, and in that case, the court essentially
Speaker 1: said that, uh, that the state had a perfectly valid
Speaker 1: interest in requiring photo identification to vote. But in that case,
Speaker 1: the plaintiffs didn't mount any significant evidence to show that
Speaker 1: the photo idea requirement how to discriminatory impact and courts
Speaker 1: since Crawford, or I should say plaintiffs, since Crawford, has
Speaker 1: spent a lot more time gathering evidence to show that
Speaker 1: the impact of these laws hit minorities harder. So that's
Speaker 1: that's sort of been the change since the two thousand
Speaker 1: eight ruling. Kimberly, what do we know about where the
Speaker 1: Supreme Court stands. Now we we we talked earlier about
Speaker 1: the Texas voter ID cases is up at the Supreme Court.
Speaker 1: The Court could say in the next few weeks whether
Speaker 1: it's gonna going to take that case. What do we
Speaker 1: know about the the eight current justices on this issue. Well,
Speaker 1: you know, they have been asked occasionally to intervene in
Speaker 1: these cases to stay lower court decisions. They largely stayed
Speaker 1: out of the fight. It seems as if, you know,
Speaker 1: they might be trying to steer clear of this issue.
Speaker 1: But the lower courts have been coming to some inconsistant
Speaker 1: rulings and maybe that the Supreme Court's hand is going
Speaker 1: to be is going to be pushed to expect to
Speaker 1: accept one of these cases. And we'll know more then, Rebecca,
Speaker 1: I want to talk about the issue of partisan gerrymandering.
Speaker 1: There is a big court case out of Wisconsin. Can
Speaker 1: you just tell us about that and what the significance is. Sure,
Speaker 1: so courts have struggled with this issue of partisan gerrymandering.
Speaker 1: It doesn't seem right that a political party and power
Speaker 1: should be able to retain power by carving up districts
Speaker 1: to its own advantage. But so long as legislatures have
Speaker 1: authority to draw lines, um, you know, partisans ship is
Speaker 1: going to be part of the process. So the problem
Speaker 1: is determining when is partisanship excessive in the line drawing process.
Speaker 1: And the Supreme Court really hasn't settled on the satisfactory
Speaker 1: way to measure when partisanship becomes excessive. And that's why
Speaker 1: this Wisconsin ruling called Whitford h seems so promising because
Speaker 1: it provides a way to measure excessive line drawing by
Speaker 1: using mass of all things. So um. The theory that
Speaker 1: the case adopts is called the efficiency gap theory, which is,
Speaker 1: without getting too technical, a way to measure the number
Speaker 1: of wasted votes in a district. So if a candidate,
Speaker 1: for example, would need only fifty of the votes plus
Speaker 1: one to win, um, if you have a district, say
Speaker 1: where the candidate wins by then you have quite a
Speaker 1: few wasted votes. And so what this what this measure
Speaker 1: does is essentially take the number of wasted votes uh
Speaker 1: and divided by the number of total those casts and
Speaker 1: and from that you get um uh. From that you
Speaker 1: get you come up with a percentage. And the plaintiffs
Speaker 1: in that case basically said, if the percentage is over
Speaker 1: a certain threshold, UM, this provides evidence of excessive partisanship
Speaker 1: in line drawing. It's important to note that that's not
Speaker 1: the end of the analysis. That once that threshold has
Speaker 1: been crossed, the court would then look at the process
Speaker 1: itself for red flags like, for example, it's the opposing
Speaker 1: political are you shut out of the process, or if
Speaker 1: it wasn't transparent. Um. So it's a very Rebecca, Rebecca,
Speaker 1: let me ask you about the impact of it. What
Speaker 1: do you think So if this this theory uh gets
Speaker 1: adopted by the Supreme Court? Uh, what kind of constraints
Speaker 1: is that going to put on on legislatures that are
Speaker 1: trying to draw the lines to keep themselves in power.
Speaker 1: So I think that they're going to start spending time
Speaker 1: thinking about the that that threshold and whether or not
Speaker 1: they are purposely in effect wasting votes. I think they'll
Speaker 1: also take great care with the process itself to make
Speaker 1: sure that if that threshold is passed by the numbers,
Speaker 1: that that that they can sort of win on the
Speaker 1: merits of having an open and fair process. Um. But
Speaker 1: it's hard to say, um, you know how much this
Speaker 1: can be gamed because although it feels nice to have
Speaker 1: a mathematical formula. In practices is often a lot more messy.
Speaker 1: Can really you think that does this? Uh seem like
Speaker 1: it has the potential to to swathe the Supreme Court
Speaker 1: in particular. Justice Kennedy has been the one who's at
Speaker 1: the center of this issue. Well. I think this is
Speaker 1: it's highly likely that this case will be heard by
Speaker 1: the Supreme Court. And that's because these redistricting cases are
Speaker 1: somewhat special and that you know, they kind of have
Speaker 1: an automatic appeal to the Supreme Court, unlike the other
Speaker 1: cases that the Court can just turn away and they
Speaker 1: don't have any any value beyond that um. And in
Speaker 1: a case like this, if the justices were to turn
Speaker 1: it away, it would it would mean something more than
Speaker 1: in the other cases. Uh. And I think instead of
Speaker 1: just turning it away without saying anything, I do think
Speaker 1: the Supreme Court is going to want to wag in
Speaker 1: on on such a big issue that they've been struggling
Speaker 1: with in the past. Rebecca, let me ask you just
Speaker 1: a broader questions you look back on so much happened
Speaker 1: this year, both the cases we're talking about, uh, the
Speaker 1: allegations of of a rigged election, Um, you know, talk
Speaker 1: of the electoral college and and faithless electors who might
Speaker 1: or might not vote for for Donald Trump. What do
Speaker 1: you think is that the big message of the big
Speaker 1: takeaway from this this year in election law? Yeah? So um.
Speaker 1: For me, as I sort of looked back at it all,
Speaker 1: I think what is clear is the fragility of public
Speaker 1: confidence in our elections. You know, elections only work if
Speaker 1: the public has confidence in the outcome. Um. And that
Speaker 1: confidence was under explicit attack in two thousand sixteen, as
Speaker 1: your opening clip sort of demonstrated. We have a long history,
Speaker 1: of course of the losing side alleging fraud in elections,
Speaker 1: but this year felt very different that we had the
Speaker 1: integrity of the election being called into the question before
Speaker 1: election day. Uh. That said, what's extraordinary extraordinary also about
Speaker 1: two thousand sixteen is how smoothly the election actually went.
Speaker 1: Before the election, voting rates advocates were bracing for widespread
Speaker 1: problems at the polls, but as it happened, um, with
Speaker 1: few few exceptions, Uh, the election proceeded without major incident.
Speaker 1: So I think the challenge going forward is figuring out
Speaker 1: how to shore up public confidence in our elections. Some
Speaker 1: think the way to do this is to tighten election rules. Um.
Speaker 1: Others see this tightening as a pretext a way to
Speaker 1: restrict certain people from accessing the ballot. So figuring out
Speaker 1: how to navigate between those two perspectives seems to be
Speaker 1: the difficult task ahead. We are going to have to
Speaker 1: leave it there. I want to thank our guests Rebecca
Speaker 1: Green of William and Mary Law School and Kimberly Robinson
Speaker 1: of Bloomberg b NA. Coming up, we're going to talk
Speaker 1: about the year in financial regulation and securities law. That
Speaker 1: will be a big topic for our listeners and it
Speaker 1: has to do with some major banks. You're listening to
Speaker 1: Bloomberg Law. This is Bloomberg