WEBVTT - Voter Fraud Allegations Fly After Contentious Election (Audio)

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<v Speaker 1>You're listening the Bloomberg Law. I'm Greg Store in our

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<v Speaker 1>Washington Point one Studios. We're talking about the biggest legal

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<v Speaker 1>issues of in America's voting laws were front and center

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<v Speaker 1>during the year, both in the courtroom and on the

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<v Speaker 1>campaign trail. In the name of fighting fraud, Republicans backed

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<v Speaker 1>photo ID requirements and other rules that made it harder

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<v Speaker 1>for many people, particularly racial minorities, to vote. Donald Trump

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<v Speaker 1>fueled the fire, claiming the system was stacked against him.

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<v Speaker 1>They even want to try to rig the election at

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<v Speaker 1>the polling booths. And believe me, there's a lot going on.

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<v Speaker 1>Do you ever hear these people, They say, there's nothing

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<v Speaker 1>going on. People that have died ten years ago is

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<v Speaker 1>still voting, Illegal immigrants are voting. Democrats, including President Obama,

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<v Speaker 1>said there was no evidence that sort of fraud was widespread,

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<v Speaker 1>and this whole notion of voter fraud. Listen. One study

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<v Speaker 1>shows that out of one billion votes cast, there were

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<v Speaker 1>exactly there. There were thirty one proven cases of voter

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<v Speaker 1>from thirty one out of a billion. You are luckier.

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<v Speaker 1>You You are much likelier to get struck by lightning

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<v Speaker 1>than they have. Somebody next to you commit voter froll

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<v Speaker 1>with us to talk about this big year in election

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<v Speaker 1>law is Rebecca Green, professor William and Mary Law School,

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<v Speaker 1>who co directs the election law program there and once

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<v Speaker 1>again in our ninety nine point one studios Kimberly Robinson

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<v Speaker 1>of Bloomberg, B and A. Kimberly, arguably the biggest court

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<v Speaker 1>ruling of the year came in a case involving North

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<v Speaker 1>Carolina's voting restrictions. Give us a quick synopsis of that place. Well,

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<v Speaker 1>this is really an extraordinary decision. I think the important

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<v Speaker 1>thing to keep in the back of your mind when

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<v Speaker 1>I'm talking about this case is the fact that race

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<v Speaker 1>and pull voting are very much correlated in the South,

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<v Speaker 1>especially in North Carolina. So it turns out that most

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<v Speaker 1>minorities tend to vote democratically. A court here struck down

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<v Speaker 1>UH North Carolina's voter ID laws and some other restrictions

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<v Speaker 1>that it said has had a surgery really UH singled

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<v Speaker 1>out Africans, African Americans, and it was extraordinary because there

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<v Speaker 1>are really two ways that a court can strike down

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<v Speaker 1>UH some of these voting restrictions. One is if the

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<v Speaker 1>effect has a discriminate or discriminant or discriminatory purpose. Um

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<v Speaker 1>that the other is the intent of the legislature is

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<v Speaker 1>to discriminate against minorities. And that final one is what

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<v Speaker 1>the court here said that, you know, the legislature really

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<v Speaker 1>intended to disenfranchise minority voters. Rebecca, in the Supreme Court

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<v Speaker 1>upheld Indiana's voter I D law. And now we've got

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<v Speaker 1>this North Carolina case. There are a couple other rulings

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<v Speaker 1>out of Texas and Wisconsin where laws were either thrown

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<v Speaker 1>out or are soften. What is going on that has

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<v Speaker 1>prompted this change from so the case you're referring to

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<v Speaker 1>is called Crawford, and in that case, the court essentially

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<v Speaker 1>said that, uh, that the state had a perfectly valid

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<v Speaker 1>interest in requiring photo identification to vote. But in that case,

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<v Speaker 1>the plaintiffs didn't mount any significant evidence to show that

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<v Speaker 1>the photo idea requirement how to discriminatory impact and courts

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<v Speaker 1>since Crawford, or I should say plaintiffs, since Crawford, has

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<v Speaker 1>spent a lot more time gathering evidence to show that

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<v Speaker 1>the impact of these laws hit minorities harder. So that's

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<v Speaker 1>that's sort of been the change since the two thousand

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<v Speaker 1>eight ruling. Kimberly, what do we know about where the

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<v Speaker 1>Supreme Court stands. Now we we we talked earlier about

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<v Speaker 1>the Texas voter ID cases is up at the Supreme Court.

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<v Speaker 1>The Court could say in the next few weeks whether

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<v Speaker 1>it's gonna going to take that case. What do we

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<v Speaker 1>know about the the eight current justices on this issue. Well,

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<v Speaker 1>you know, they have been asked occasionally to intervene in

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<v Speaker 1>these cases to stay lower court decisions. They largely stayed

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<v Speaker 1>out of the fight. It seems as if, you know,

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<v Speaker 1>they might be trying to steer clear of this issue.

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<v Speaker 1>But the lower courts have been coming to some inconsistant

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<v Speaker 1>rulings and maybe that the Supreme Court's hand is going

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<v Speaker 1>to be is going to be pushed to expect to

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<v Speaker 1>accept one of these cases. And we'll know more then, Rebecca,

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<v Speaker 1>I want to talk about the issue of partisan gerrymandering.

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<v Speaker 1>There is a big court case out of Wisconsin. Can

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<v Speaker 1>you just tell us about that and what the significance is. Sure,

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<v Speaker 1>so courts have struggled with this issue of partisan gerrymandering.

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<v Speaker 1>It doesn't seem right that a political party and power

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<v Speaker 1>should be able to retain power by carving up districts

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<v Speaker 1>to its own advantage. But so long as legislatures have

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<v Speaker 1>authority to draw lines, um, you know, partisans ship is

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<v Speaker 1>going to be part of the process. So the problem

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<v Speaker 1>is determining when is partisanship excessive in the line drawing process.

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<v Speaker 1>And the Supreme Court really hasn't settled on the satisfactory

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<v Speaker 1>way to measure when partisanship becomes excessive. And that's why

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<v Speaker 1>this Wisconsin ruling called Whitford h seems so promising because

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<v Speaker 1>it provides a way to measure excessive line drawing by

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<v Speaker 1>using mass of all things. So um. The theory that

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<v Speaker 1>the case adopts is called the efficiency gap theory, which is,

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<v Speaker 1>without getting too technical, a way to measure the number

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<v Speaker 1>of wasted votes in a district. So if a candidate,

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<v Speaker 1>for example, would need only fifty of the votes plus

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<v Speaker 1>one to win, um, if you have a district, say

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<v Speaker 1>where the candidate wins by then you have quite a

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<v Speaker 1>few wasted votes. And so what this what this measure

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<v Speaker 1>does is essentially take the number of wasted votes uh

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<v Speaker 1>and divided by the number of total those casts and

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<v Speaker 1>and from that you get um uh. From that you

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<v Speaker 1>get you come up with a percentage. And the plaintiffs

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<v Speaker 1>in that case basically said, if the percentage is over

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<v Speaker 1>a certain threshold, UM, this provides evidence of excessive partisanship

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<v Speaker 1>in line drawing. It's important to note that that's not

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<v Speaker 1>the end of the analysis. That once that threshold has

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<v Speaker 1>been crossed, the court would then look at the process

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<v Speaker 1>itself for red flags like, for example, it's the opposing

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<v Speaker 1>political are you shut out of the process, or if

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<v Speaker 1>it wasn't transparent. Um. So it's a very Rebecca, Rebecca,

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<v Speaker 1>let me ask you about the impact of it. What

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<v Speaker 1>do you think So if this this theory uh gets

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<v Speaker 1>adopted by the Supreme Court? Uh, what kind of constraints

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<v Speaker 1>is that going to put on on legislatures that are

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<v Speaker 1>trying to draw the lines to keep themselves in power.

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<v Speaker 1>So I think that they're going to start spending time

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<v Speaker 1>thinking about the that that threshold and whether or not

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<v Speaker 1>they are purposely in effect wasting votes. I think they'll

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<v Speaker 1>also take great care with the process itself to make

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<v Speaker 1>sure that if that threshold is passed by the numbers,

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<v Speaker 1>that that that they can sort of win on the

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<v Speaker 1>merits of having an open and fair process. Um. But

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<v Speaker 1>it's hard to say, um, you know how much this

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<v Speaker 1>can be gamed because although it feels nice to have

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<v Speaker 1>a mathematical formula. In practices is often a lot more messy.

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<v Speaker 1>Can really you think that does this? Uh seem like

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<v Speaker 1>it has the potential to to swathe the Supreme Court

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<v Speaker 1>in particular. Justice Kennedy has been the one who's at

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<v Speaker 1>the center of this issue. Well. I think this is

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<v Speaker 1>it's highly likely that this case will be heard by

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<v Speaker 1>the Supreme Court. And that's because these redistricting cases are

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<v Speaker 1>somewhat special and that you know, they kind of have

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<v Speaker 1>an automatic appeal to the Supreme Court, unlike the other

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<v Speaker 1>cases that the Court can just turn away and they

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<v Speaker 1>don't have any any value beyond that um. And in

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<v Speaker 1>a case like this, if the justices were to turn

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<v Speaker 1>it away, it would it would mean something more than

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<v Speaker 1>in the other cases. Uh. And I think instead of

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<v Speaker 1>just turning it away without saying anything, I do think

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<v Speaker 1>the Supreme Court is going to want to wag in

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<v Speaker 1>on on such a big issue that they've been struggling

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<v Speaker 1>with in the past. Rebecca, let me ask you just

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<v Speaker 1>a broader questions you look back on so much happened

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<v Speaker 1>this year, both the cases we're talking about, uh, the

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<v Speaker 1>allegations of of a rigged election, Um, you know, talk

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<v Speaker 1>of the electoral college and and faithless electors who might

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<v Speaker 1>or might not vote for for Donald Trump. What do

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<v Speaker 1>you think is that the big message of the big

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<v Speaker 1>takeaway from this this year in election law? Yeah? So um.

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<v Speaker 1>For me, as I sort of looked back at it all,

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<v Speaker 1>I think what is clear is the fragility of public

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<v Speaker 1>confidence in our elections. You know, elections only work if

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<v Speaker 1>the public has confidence in the outcome. Um. And that

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<v Speaker 1>confidence was under explicit attack in two thousand sixteen, as

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<v Speaker 1>your opening clip sort of demonstrated. We have a long history,

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<v Speaker 1>of course of the losing side alleging fraud in elections,

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<v Speaker 1>but this year felt very different that we had the

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<v Speaker 1>integrity of the election being called into the question before

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<v Speaker 1>election day. Uh. That said, what's extraordinary extraordinary also about

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<v Speaker 1>two thousand sixteen is how smoothly the election actually went.

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<v Speaker 1>Before the election, voting rates advocates were bracing for widespread

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<v Speaker 1>problems at the polls, but as it happened, um, with

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<v Speaker 1>few few exceptions, Uh, the election proceeded without major incident.

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<v Speaker 1>So I think the challenge going forward is figuring out

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<v Speaker 1>how to shore up public confidence in our elections. Some

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<v Speaker 1>think the way to do this is to tighten election rules. Um.

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<v Speaker 1>Others see this tightening as a pretext a way to

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<v Speaker 1>restrict certain people from accessing the ballot. So figuring out

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<v Speaker 1>how to navigate between those two perspectives seems to be

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<v Speaker 1>the difficult task ahead. We are going to have to

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<v Speaker 1>leave it there. I want to thank our guests Rebecca

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<v Speaker 1>Green of William and Mary Law School and Kimberly Robinson

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<v Speaker 1>of Bloomberg b NA. Coming up, we're going to talk

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<v Speaker 1>about the year in financial regulation and securities law. That

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<v Speaker 1>will be a big topic for our listeners and it

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<v Speaker 1>has to do with some major banks. You're listening to

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<v Speaker 1>Bloomberg Law. This is Bloomberg