1 00:00:02,759 --> 00:00:10,039 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,680 --> 00:00:08,960 Speaker 1: Are you. 3 00:00:12,320 --> 00:00:14,200 Speaker 2: Ready to use your votes? 4 00:00:15,520 --> 00:00:17,279 Speaker 1: Are you ready to vote? 5 00:00:17,360 --> 00:00:17,840 Speaker 3: Like you. 6 00:00:19,880 --> 00:00:24,280 Speaker 1: Because your loves the prime water In Montgomery, Alabama, the 7 00:00:24,320 --> 00:00:28,400 Speaker 1: city considered the crucible of the civil rights movement, thousands 8 00:00:28,440 --> 00:00:32,120 Speaker 1: of people rally this month to protest against the state's 9 00:00:32,200 --> 00:00:37,400 Speaker 1: efforts to dismantle congressional districts that have black representatives. Civil 10 00:00:37,479 --> 00:00:41,519 Speaker 1: rights leaders, democratic members of Congress from across the country, 11 00:00:41,720 --> 00:00:46,159 Speaker 1: union leaders and pastors denounced the Supreme Court's Calais ruling, 12 00:00:46,360 --> 00:00:50,280 Speaker 1: which eviscerated the landmark Voting Rights Act and set off 13 00:00:50,320 --> 00:00:54,680 Speaker 1: a frenzy by Southern states to reshape voting districts with 14 00:00:54,880 --> 00:01:00,639 Speaker 1: large minority populations. New Jersey Democratic Senator Cory Booker compared 15 00:01:00,760 --> 00:01:05,399 Speaker 1: Calais to pass Supreme Court decisions like dred Scott and 16 00:01:05,520 --> 00:01:06,960 Speaker 1: Plessy versus Ferguson. 17 00:01:07,480 --> 00:01:11,039 Speaker 2: You see, we have seen this before for some people 18 00:01:11,200 --> 00:01:15,760 Speaker 2: in black groups try to deny or take away our rights. 19 00:01:16,200 --> 00:01:20,399 Speaker 1: But this week a stunning legal victory for Democrats as 20 00:01:20,440 --> 00:01:24,560 Speaker 1: a panel of federal judges refuse to let Alabama use 21 00:01:24,600 --> 00:01:28,520 Speaker 1: a congressional map it adopted three years ago because it 22 00:01:28,680 --> 00:01:33,280 Speaker 1: intentionally discriminated on the basis of race. The year's long 23 00:01:33,400 --> 00:01:38,120 Speaker 1: legal fight over Alabama's maps includes several interventions by the 24 00:01:38,160 --> 00:01:42,119 Speaker 1: Supreme Court, and Republicans are asking the court to intervene 25 00:01:42,160 --> 00:01:46,280 Speaker 1: again and reverse this week's decision. My guest is elections 26 00:01:46,360 --> 00:01:49,960 Speaker 1: law expert Richard Brefalt, a professor at Columbia Law School, 27 00:01:50,280 --> 00:01:53,480 Speaker 1: which there have been so many twists and turns in 28 00:01:53,520 --> 00:01:57,240 Speaker 1: the fight over Alabama's congressional maps give us some of 29 00:01:57,280 --> 00:01:58,000 Speaker 1: the background. 30 00:01:58,600 --> 00:02:03,000 Speaker 4: It's incredibly confusing. So this latest Alabama case really is 31 00:02:03,040 --> 00:02:07,480 Speaker 4: the ongoing saga of endless litigation following the twenty twenty census. 32 00:02:07,520 --> 00:02:11,880 Speaker 4: In the Alabama's redistricting, Alabama has seven House seats that 33 00:02:11,960 --> 00:02:14,959 Speaker 4: didn't change as a result of a court decision some 34 00:02:15,080 --> 00:02:18,240 Speaker 4: decades earlier. Basically, it has a white majority in six 35 00:02:18,280 --> 00:02:20,440 Speaker 4: seats and a black majority in one. This was as 36 00:02:20,440 --> 00:02:24,400 Speaker 4: of twenty twenty, although the state is about thirty percent black. 37 00:02:24,840 --> 00:02:28,440 Speaker 4: Voting Rights Act case was brought challenging that A three 38 00:02:28,520 --> 00:02:30,880 Speaker 4: judge court that's the kind of court that's created when 39 00:02:30,960 --> 00:02:35,400 Speaker 4: challenges heard districting are brought, found that Alabama had violated 40 00:02:35,400 --> 00:02:37,960 Speaker 4: the Voting Rights Act that had engaged in a legal 41 00:02:38,000 --> 00:02:41,360 Speaker 4: vote dilution and ordered a new map, But the Supreme 42 00:02:41,400 --> 00:02:45,200 Speaker 4: Court stepped in before the twenty twenty two election and said, no, 43 00:02:45,240 --> 00:02:47,760 Speaker 4: it's too close to the election, although it was actually 44 00:02:47,880 --> 00:02:49,600 Speaker 4: quite a number of months before. It was I think 45 00:02:49,639 --> 00:02:51,760 Speaker 4: in the spring, but they said it was probably too 46 00:02:51,800 --> 00:02:54,680 Speaker 4: close to the primaries. And so that case ultimately one 47 00:02:54,720 --> 00:02:57,760 Speaker 4: to the Supreme Court, and many people surprised. The Supreme 48 00:02:57,760 --> 00:03:00,359 Speaker 4: Court by a voter five to four and I think 49 00:03:00,360 --> 00:03:03,120 Speaker 4: it was twenty twenty three voted to affirm with the 50 00:03:03,200 --> 00:03:06,280 Speaker 4: three judge court at founding this concluded Alabama had violated 51 00:03:06,320 --> 00:03:09,880 Speaker 4: the voting right sack and indicated that Alabama probably should 52 00:03:09,919 --> 00:03:13,200 Speaker 4: have two but it's all opportunity districts where black voters 53 00:03:13,280 --> 00:03:16,280 Speaker 4: have a real opportunity to elect their candidate of choice. 54 00:03:16,320 --> 00:03:19,440 Speaker 4: Went back to the legislature. Legislature, however, did not do that. 55 00:03:19,520 --> 00:03:22,840 Speaker 4: The legislature basically came up with another plan, which was 56 00:03:22,960 --> 00:03:26,720 Speaker 4: essentially six white majority one black majority district that was 57 00:03:26,800 --> 00:03:29,880 Speaker 4: then challenged and the three judge court said, no, you 58 00:03:29,960 --> 00:03:32,639 Speaker 4: have not complied with our ruling. It still is vote diluted, 59 00:03:32,720 --> 00:03:37,000 Speaker 4: and we actually think it's unconstitutional because it reflects intentional 60 00:03:37,080 --> 00:03:41,000 Speaker 4: racial discrimination. So they enjoyed this new map that's sometimes 61 00:03:41,000 --> 00:03:43,840 Speaker 4: called the twenty twenty three map, and a special master 62 00:03:44,160 --> 00:03:47,400 Speaker 4: created a map which created two black majority districts, well 63 00:03:47,440 --> 00:03:50,200 Speaker 4: one I think is just under majority one just over 64 00:03:50,400 --> 00:03:53,440 Speaker 4: in Alabama for the first time since reconstruction elected to 65 00:03:53,600 --> 00:03:56,480 Speaker 4: black representatives in twenty twenty four. 66 00:03:57,160 --> 00:04:00,920 Speaker 1: Then at the end of April, the Supreme Court severely 67 00:04:01,120 --> 00:04:04,680 Speaker 1: weaken the Voting Rights Act in the Calais decision. Tell 68 00:04:04,760 --> 00:04:06,760 Speaker 1: us how that affected the fight in Alabama. 69 00:04:07,160 --> 00:04:10,440 Speaker 4: The Supreme Court significantly, I think the word the Court 70 00:04:10,480 --> 00:04:14,200 Speaker 4: is using is updated its analysis of vote dilution claims 71 00:04:14,240 --> 00:04:16,840 Speaker 4: under section to a Voting Rights Act, making it much 72 00:04:16,920 --> 00:04:19,719 Speaker 4: much much harder for them to prevail. At that point, 73 00:04:20,000 --> 00:04:22,880 Speaker 4: Alabama came in and said, you know, we want to 74 00:04:22,920 --> 00:04:25,880 Speaker 4: reopen this case, and so with the Supreme Court at dawn. 75 00:04:25,960 --> 00:04:29,479 Speaker 4: In the earlier Alabama case, is basically sustained the injunction 76 00:04:29,800 --> 00:04:33,800 Speaker 4: that the lower court had issued barring Alabama from using 77 00:04:34,040 --> 00:04:37,359 Speaker 4: its own legislatively adopted map. So they went to the 78 00:04:37,360 --> 00:04:40,719 Speaker 4: Supreme Court this is in either late April or very 79 00:04:40,760 --> 00:04:44,039 Speaker 4: early May, and asked the court to lift the injunction 80 00:04:44,440 --> 00:04:47,640 Speaker 4: on the legislature's twenty twenty three map. The court agreed 81 00:04:47,880 --> 00:04:50,320 Speaker 4: and said we're sending this back to the lower court 82 00:04:50,480 --> 00:04:53,520 Speaker 4: for them to reconsider their decision in light of our 83 00:04:53,560 --> 00:04:56,400 Speaker 4: decision in Calais. They didn't say the lower court was wrong, 84 00:04:56,640 --> 00:04:59,560 Speaker 4: but they just said, obviously the legal rules have changed, 85 00:04:59,640 --> 00:05:02,960 Speaker 4: we want the lower court to reconsider. While that was happening, 86 00:05:03,080 --> 00:05:06,120 Speaker 4: the Governor of Alabama called a special session of the legislature. 87 00:05:06,400 --> 00:05:10,280 Speaker 4: At this point, primaries were already ongoing for the Alabama 88 00:05:10,279 --> 00:05:13,159 Speaker 4: candidates for Congress. Basically, the governor said and got the 89 00:05:13,200 --> 00:05:16,600 Speaker 4: legislature who agree to stop the primaries in four of 90 00:05:16,640 --> 00:05:20,160 Speaker 4: the districts, the two black majority districts and adjacent districts 91 00:05:20,200 --> 00:05:22,479 Speaker 4: which would be most likely impacted by this, and said, 92 00:05:22,480 --> 00:05:24,119 Speaker 4: we really want to go back to the twenty twenty 93 00:05:24,120 --> 00:05:27,440 Speaker 4: three map. So they've now stopped the primaries in those 94 00:05:27,640 --> 00:05:31,880 Speaker 4: four districts, and the legislature basically thinks that with the 95 00:05:31,920 --> 00:05:35,920 Speaker 4: injunction lifted the twenty twenty three map, which is the 96 00:05:36,000 --> 00:05:39,720 Speaker 4: legislature's map, which would be six majority wide one black 97 00:05:39,760 --> 00:05:43,560 Speaker 4: majority district then also for partisan purposes, likely six Republican 98 00:05:43,640 --> 00:05:46,719 Speaker 4: and one Democratic. That was the result of the legislature's 99 00:05:46,800 --> 00:05:50,279 Speaker 4: vote in early May. The plaintiffs who brought the original 100 00:05:50,320 --> 00:05:52,920 Speaker 4: case then went right back to court before the three 101 00:05:53,000 --> 00:05:56,359 Speaker 4: judge court which had imposed the map that was used 102 00:05:56,360 --> 00:05:57,400 Speaker 4: in the last election. 103 00:05:57,720 --> 00:06:00,440 Speaker 1: Will you explain the decision of the three judge panel, 104 00:06:00,480 --> 00:06:04,360 Speaker 1: which by the way, consisted of two Trump appointees and 105 00:06:04,680 --> 00:06:06,320 Speaker 1: one Clinton appointee. 106 00:06:06,640 --> 00:06:09,480 Speaker 4: And that court issued a one hundred and three page 107 00:06:09,480 --> 00:06:14,279 Speaker 4: opinion where they concluded that the legislature's recent action was 108 00:06:14,600 --> 00:06:18,680 Speaker 4: both unconstitutional and violated the Voting Rights Act even under 109 00:06:18,760 --> 00:06:22,719 Speaker 4: the Calais standard. And the court basically said, the Supreme 110 00:06:22,760 --> 00:06:25,039 Speaker 4: Court did not say that we were wrong before. They 111 00:06:25,160 --> 00:06:27,520 Speaker 4: just said you've got to reconsider. And the court went 112 00:06:27,600 --> 00:06:31,559 Speaker 4: through the entire process by which Alabama adopted the twenty 113 00:06:31,640 --> 00:06:34,640 Speaker 4: twenty three plan, including its refusal to create a second 114 00:06:34,640 --> 00:06:39,480 Speaker 4: black majority district, the kinds of considerations it considered its deliberations, 115 00:06:39,680 --> 00:06:43,000 Speaker 4: and concluded that that was intentional racial discrimination. They then 116 00:06:43,080 --> 00:06:46,280 Speaker 4: also applied the Calais standard and said cala doesn't mean 117 00:06:46,320 --> 00:06:49,160 Speaker 4: you never can prove vote dilution. And they found that 118 00:06:49,279 --> 00:06:54,080 Speaker 4: given that there was intentional racial discrimination and given other factors, 119 00:06:54,080 --> 00:06:56,800 Speaker 4: and given just how much this appears to be driven 120 00:06:56,920 --> 00:07:00,720 Speaker 4: by race, and how much brace is dominant in Alabama politics, 121 00:07:00,880 --> 00:07:03,719 Speaker 4: that this really was more race than party and therefore 122 00:07:03,839 --> 00:07:06,400 Speaker 4: violated the Voting Rights Act two. And then they also 123 00:07:06,400 --> 00:07:09,360 Speaker 4: had some analysis about what's called the Percell principle, which 124 00:07:09,400 --> 00:07:11,600 Speaker 4: is the idea that courts should not step in and 125 00:07:11,680 --> 00:07:14,160 Speaker 4: change the voting rules on the election. But of course 126 00:07:14,160 --> 00:07:16,400 Speaker 4: they pointed out, it's kind of a mess as to 127 00:07:16,440 --> 00:07:19,920 Speaker 4: what's the baseline. Here is the baseline the twenty twenty 128 00:07:20,000 --> 00:07:22,640 Speaker 4: four map, which is what the state was using up 129 00:07:22,720 --> 00:07:26,120 Speaker 4: until early May, or is the baseline the map that 130 00:07:26,200 --> 00:07:29,120 Speaker 4: the state has just reimposed. And the court said, going 131 00:07:29,160 --> 00:07:32,640 Speaker 4: through the analysis that that case requires, we think the 132 00:07:32,680 --> 00:07:35,640 Speaker 4: disruption is so great if the state's going to go 133 00:07:35,720 --> 00:07:37,680 Speaker 4: back to that old twenty twenty three map, and that 134 00:07:37,720 --> 00:07:40,480 Speaker 4: there's actually less disruption if they stick with the twenty 135 00:07:40,520 --> 00:07:43,480 Speaker 4: twenty four maps. So they also felt that justified the 136 00:07:43,480 --> 00:07:46,280 Speaker 4: injunction is to kind of summon up. In granting an 137 00:07:46,320 --> 00:07:48,080 Speaker 4: injunction like this, the court has to be conus they 138 00:07:48,080 --> 00:07:52,040 Speaker 4: are both the substantive merits, but also whether an injunction 139 00:07:52,240 --> 00:07:55,160 Speaker 4: is wise, and they said yes on the substant merits. 140 00:07:55,320 --> 00:07:58,840 Speaker 4: The Alabama plan is both unconstitutional and violates the voting 141 00:07:58,920 --> 00:08:02,640 Speaker 4: Rights Act and on the rules for an injunction. We 142 00:08:02,720 --> 00:08:06,120 Speaker 4: think actually that this is really preserving the status quo 143 00:08:06,320 --> 00:08:08,360 Speaker 4: rather than disrupting it on the the election. 144 00:08:08,640 --> 00:08:11,160 Speaker 1: So one hundred and two pages of opinion. Do you 145 00:08:11,200 --> 00:08:15,679 Speaker 1: think the panel's findings will hold up under Supreme Court review? 146 00:08:16,120 --> 00:08:17,880 Speaker 4: I think they did a good job. I mean, the 147 00:08:17,960 --> 00:08:20,600 Speaker 4: real question at this point is how deeply is the 148 00:08:20,640 --> 00:08:24,240 Speaker 4: Supreme Court going to get into reviewing this decision. I mean, 149 00:08:24,280 --> 00:08:27,360 Speaker 4: the time really is tight here, and you know, they 150 00:08:27,400 --> 00:08:32,360 Speaker 4: make extensive findings of discrimination. Is the Supreme Court really 151 00:08:32,360 --> 00:08:36,520 Speaker 4: in a position to reject those right now? Though they've 152 00:08:36,559 --> 00:08:39,079 Speaker 4: done that in other cases, so I don't want to 153 00:08:39,120 --> 00:08:41,560 Speaker 4: say they won't. There was a recent case from Texas 154 00:08:41,760 --> 00:08:45,640 Speaker 4: where they basically rejected the lower court's findings about really 155 00:08:45,720 --> 00:08:48,679 Speaker 4: much discussion. But they would have to do that. They 156 00:08:48,679 --> 00:08:52,800 Speaker 4: would have to say that the finding of discrimination is wrong, 157 00:08:53,240 --> 00:08:55,680 Speaker 4: and you know it's the Supreme Court. They could do 158 00:08:55,720 --> 00:08:57,960 Speaker 4: it on the shadow docket and the procurium opinion with 159 00:08:58,120 --> 00:09:01,000 Speaker 4: long descents. They could. But I do think that the 160 00:09:01,080 --> 00:09:05,920 Speaker 4: three judge court went through the process by which Alabama 161 00:09:05,960 --> 00:09:09,440 Speaker 4: did this in twenty twenty three, which is the map 162 00:09:09,480 --> 00:09:12,480 Speaker 4: that would come into effect and great detail and spend 163 00:09:12,480 --> 00:09:15,120 Speaker 4: a lot of time basically making their case for both 164 00:09:15,160 --> 00:09:19,719 Speaker 4: intentional discrimination and for trying to comport with CALA. And 165 00:09:19,800 --> 00:09:22,680 Speaker 4: so they were seeking to be faithful to what the 166 00:09:22,720 --> 00:09:25,360 Speaker 4: Supreme Court did. They were not saying, you know, we're 167 00:09:25,400 --> 00:09:28,440 Speaker 4: not going to follow. They actually said that CALA gives 168 00:09:28,480 --> 00:09:31,040 Speaker 4: greater way to making sure the Voting Rights Act is 169 00:09:31,120 --> 00:09:34,280 Speaker 4: closer to the Constitution. That really shown me the applied 170 00:09:34,679 --> 00:09:38,640 Speaker 4: in cases where there's reasonable suspicion of intentional discrimination, and 171 00:09:38,640 --> 00:09:40,920 Speaker 4: they make that case. They also spend a lot of 172 00:09:40,920 --> 00:09:43,360 Speaker 4: time trying to make the case that this was race 173 00:09:43,480 --> 00:09:47,040 Speaker 4: and not party, even though the two were intertwined by 174 00:09:47,160 --> 00:09:51,040 Speaker 4: talking about how in Alabama even white Democrats find a 175 00:09:51,040 --> 00:09:54,720 Speaker 4: heart to vote for a black candidate. Black Republicans don't 176 00:09:54,720 --> 00:09:57,200 Speaker 4: do very well with Republican voters, and how there are 177 00:09:57,200 --> 00:10:02,880 Speaker 4: many relatively socially conservative Calabanians but they vote Democratic because 178 00:10:03,000 --> 00:10:05,560 Speaker 4: of the party's position on race issues as opposed to 179 00:10:05,559 --> 00:10:07,920 Speaker 4: a Publican party. So, I mean, I think it's a struggle. 180 00:10:08,120 --> 00:10:10,280 Speaker 4: The Supreme Court standard in CALA saying you have to 181 00:10:10,320 --> 00:10:13,640 Speaker 4: say it's race and that party is an incredibly difficult standard. 182 00:10:13,800 --> 00:10:16,200 Speaker 4: And we'll see if the Supreme Court finds what this 183 00:10:16,400 --> 00:10:19,920 Speaker 4: Court did as persuasive, but they certainly spend some pages 184 00:10:20,000 --> 00:10:21,120 Speaker 4: trying to make that case. 185 00:10:21,440 --> 00:10:24,240 Speaker 1: The Supreme Court can't make new findings of facts, so 186 00:10:24,280 --> 00:10:25,720 Speaker 1: what's the review process? 187 00:10:25,800 --> 00:10:28,920 Speaker 4: Then they'd have to decide what their weight is. The 188 00:10:28,920 --> 00:10:31,160 Speaker 4: Court went through the blow by blow of the process 189 00:10:31,240 --> 00:10:35,439 Speaker 4: by which the legislature in twenty twenty three enacted the map. 190 00:10:35,520 --> 00:10:37,800 Speaker 4: It's kind of a funny case because the case comes 191 00:10:37,840 --> 00:10:40,959 Speaker 4: up to the Supreme Court based on what the legislature 192 00:10:41,040 --> 00:10:43,320 Speaker 4: did just like a couple of weeks ago. That's the 193 00:10:43,320 --> 00:10:46,640 Speaker 4: one that basically said we're putting off the primaries. But 194 00:10:46,679 --> 00:10:49,360 Speaker 4: it was the Supreme Court, by lifting the injunction, that 195 00:10:49,440 --> 00:10:52,079 Speaker 4: put the twenty twenty three map back into effects of 196 00:10:52,080 --> 00:10:54,400 Speaker 4: this case is very much about the twenty twenty three map, 197 00:10:54,760 --> 00:10:56,840 Speaker 4: and with this Court gives a lot of weight to 198 00:10:56,880 --> 00:11:00,280 Speaker 4: the fact that the legislature in twenty twenty three, when 199 00:11:00,280 --> 00:11:04,360 Speaker 4: it was told to remedy a vote dilution finding, didn't 200 00:11:04,400 --> 00:11:07,280 Speaker 4: really do that. That and the process at which they did, 201 00:11:07,320 --> 00:11:10,040 Speaker 4: and the factors they cited and the findings they issued 202 00:11:10,400 --> 00:11:13,840 Speaker 4: all smacked of intentional discrimination. So it's kind of weird 203 00:11:14,080 --> 00:11:16,720 Speaker 4: because in some ways, it's not really a review of 204 00:11:16,760 --> 00:11:19,880 Speaker 4: what the legislature just did. It's a review of what 205 00:11:19,920 --> 00:11:23,000 Speaker 4: they did three years ago. And the law has changed 206 00:11:23,000 --> 00:11:25,800 Speaker 4: since then with KELA, So it's kind of like putting 207 00:11:25,840 --> 00:11:28,840 Speaker 4: yourself back into what things were like then and trying 208 00:11:28,840 --> 00:11:33,200 Speaker 4: to figure out was the legislature acting unconstitutionally when it 209 00:11:33,240 --> 00:11:36,880 Speaker 4: did what it did in refusing to create the black 210 00:11:36,920 --> 00:11:40,600 Speaker 4: majority district that they had been more or less directed 211 00:11:40,640 --> 00:11:41,040 Speaker 4: to do. 212 00:11:41,240 --> 00:11:44,160 Speaker 1: Okay, Rich, you're going to stay with me. Coming up next, 213 00:11:44,240 --> 00:11:48,040 Speaker 1: we're going to discuss a possible easy Supreme Court out 214 00:11:48,080 --> 00:11:52,000 Speaker 1: here and the frenzied Republican redistricting in the South. I'm 215 00:11:52,080 --> 00:11:57,840 Speaker 1: June Grosso and this is Bloomberg. The Supreme Court's decision 216 00:11:57,960 --> 00:12:02,520 Speaker 1: last month severely weakening minority protections under the Voting Rights 217 00:12:02,520 --> 00:12:06,280 Speaker 1: Act has set off a new wave of frenzied redistricting 218 00:12:06,360 --> 00:12:10,640 Speaker 1: in states across the South, with Republicans scrambling to erase 219 00:12:10,880 --> 00:12:15,319 Speaker 1: majority black US House seats before the midterms. The only 220 00:12:15,440 --> 00:12:18,640 Speaker 1: Southern state that seems to be bucking the pressure from 221 00:12:18,720 --> 00:12:23,160 Speaker 1: President Trump is South Carolina, where the Republican led state 222 00:12:23,320 --> 00:12:27,440 Speaker 1: Senate shot down in effort to redraw House districts. South 223 00:12:27,480 --> 00:12:31,400 Speaker 1: Carolina Senate Majority Leader Shane Massey said there was no 224 00:12:31,480 --> 00:12:33,720 Speaker 1: reason to redraw the state's maps. 225 00:12:34,320 --> 00:12:38,760 Speaker 3: We are not Louisiana, we are not Alabama, we are 226 00:12:38,800 --> 00:12:43,559 Speaker 3: not Mississippi. Our map is not unconstitutional. 227 00:12:44,280 --> 00:12:51,320 Speaker 1: Legal challenges are continuing over redrawn maps in Alabama, Florida, Louisiana, Missouri, 228 00:12:51,400 --> 00:12:54,800 Speaker 1: and Tennessee. I've been talking to Columbia Law School professor 229 00:12:54,880 --> 00:12:58,520 Speaker 1: Richard Brefault, which let's go back to the Alabama fight. 230 00:12:59,080 --> 00:13:03,120 Speaker 1: Alabama official are making an emergency request to the Supreme 231 00:13:03,280 --> 00:13:06,720 Speaker 1: Court to reinstate a Republican drawn voting map after a 232 00:13:06,760 --> 00:13:10,000 Speaker 1: panel of judges rejected the map for the third time 233 00:13:10,120 --> 00:13:16,000 Speaker 1: as the product of intentional discrimination against black voters. Wouldn't 234 00:13:16,000 --> 00:13:18,640 Speaker 1: it be an easier road for the justices to turn 235 00:13:18,720 --> 00:13:23,800 Speaker 1: down the emergency request rather than reversing the panel's decision 236 00:13:24,240 --> 00:13:26,280 Speaker 1: in what would be the first major test of the 237 00:13:26,360 --> 00:13:29,400 Speaker 1: new standard that they've set in the Calais decision. 238 00:13:30,000 --> 00:13:32,120 Speaker 4: On the other hand, they could, of course stay it, 239 00:13:32,440 --> 00:13:35,040 Speaker 4: which they have been known to do. That's effectively what 240 00:13:35,120 --> 00:13:38,280 Speaker 4: they did three years ago in the Milligan case. They 241 00:13:38,360 --> 00:13:42,360 Speaker 4: stayed the Court's decision striking down the twenty twenty one map, 242 00:13:42,600 --> 00:13:44,559 Speaker 4: and then a year and a half later they sustained 243 00:13:44,559 --> 00:13:46,439 Speaker 4: the lower corporate after having blocked their decision for a 244 00:13:46,520 --> 00:13:48,880 Speaker 4: year and a half. It is not out of the question, 245 00:13:49,000 --> 00:13:53,959 Speaker 4: given that history, that they might stay this injunction, allow 246 00:13:54,080 --> 00:13:57,040 Speaker 4: the election to go forward on the twenty twenty three map, 247 00:13:57,040 --> 00:14:00,000 Speaker 4: and then conceivably this case comes up on the marriage 248 00:14:00,320 --> 00:14:03,040 Speaker 4: next year. I mean, I don't want to predict that, 249 00:14:03,120 --> 00:14:05,959 Speaker 4: but it's not out of a question that they would 250 00:14:06,040 --> 00:14:10,160 Speaker 4: simply stay this, possibly on Percell grounds. Percell is the 251 00:14:10,160 --> 00:14:12,640 Speaker 4: one about not acting too close to the election, but 252 00:14:12,880 --> 00:14:15,679 Speaker 4: that itself is just a mare's mess, because you know, 253 00:14:15,720 --> 00:14:18,240 Speaker 4: that's always kind of figured out what's the status quo, 254 00:14:18,920 --> 00:14:22,440 Speaker 4: and is the status quo the twenty twenty three mappers, 255 00:14:22,480 --> 00:14:27,040 Speaker 4: the status quo the twenty twenty four map, which this 256 00:14:27,120 --> 00:14:28,120 Speaker 4: would put back in. 257 00:14:28,560 --> 00:14:34,360 Speaker 1: It's surprisingly complicated, surprisingly complicated and seemingly never ending. But 258 00:14:34,440 --> 00:14:37,720 Speaker 1: as far as the per Cell principle is concerned, does 259 00:14:37,760 --> 00:14:42,200 Speaker 1: the Supreme Court even consistently follow that? I mean, the 260 00:14:42,240 --> 00:14:45,920 Speaker 1: Cala decision came down at the end of April, and 261 00:14:46,000 --> 00:14:47,600 Speaker 1: look at the mess it's causing. 262 00:14:48,160 --> 00:14:51,080 Speaker 4: It's been very vigorous about it sometimes, but it's not 263 00:14:51,080 --> 00:14:53,360 Speaker 4: clear that they think it applies to them. It really 264 00:14:53,400 --> 00:14:56,120 Speaker 4: is very much about lower courts. I mean, after all, 265 00:14:56,280 --> 00:14:59,960 Speaker 4: Cala itself, as the mess we've seen in Louisiana and Alabama, 266 00:15:00,520 --> 00:15:03,520 Speaker 4: cala itself has kind of been consistent with the Perceel principle. 267 00:15:03,800 --> 00:15:05,720 Speaker 4: If they were serious about it, they would have said 268 00:15:05,720 --> 00:15:07,880 Speaker 4: we're not going to apply it to this year, or 269 00:15:07,920 --> 00:15:09,880 Speaker 4: they would have decided much earlier, or they would have 270 00:15:09,880 --> 00:15:11,600 Speaker 4: waited to left the election season was over. 271 00:15:11,960 --> 00:15:15,800 Speaker 1: And because the Alabama governor has moved the special primaries 272 00:15:15,840 --> 00:15:20,120 Speaker 1: to August, does that give the Supreme Court a little 273 00:15:20,120 --> 00:15:21,160 Speaker 1: more breathing room? 274 00:15:21,640 --> 00:15:23,880 Speaker 4: I guess yeah, But they don't have a lot of time, 275 00:15:23,920 --> 00:15:26,920 Speaker 4: I think because in order to have that primary in August, 276 00:15:27,000 --> 00:15:28,560 Speaker 4: I mean, a lot of the opinion and a lot 277 00:15:28,600 --> 00:15:31,480 Speaker 4: of the trial testimony in this case on this injunction 278 00:15:31,840 --> 00:15:33,600 Speaker 4: was about how easy your harden is it going to 279 00:15:33,640 --> 00:15:37,040 Speaker 4: be for the election administrators to redraw the lines and 280 00:15:37,080 --> 00:15:40,440 Speaker 4: to basically to move around all of the voter information 281 00:15:40,560 --> 00:15:42,960 Speaker 4: and make sure voters are in the right place, what 282 00:15:43,040 --> 00:15:45,760 Speaker 4: their precincts are, and that they're voting in replace And 283 00:15:46,040 --> 00:15:48,680 Speaker 4: normally this is a process that takes several months, but 284 00:15:48,760 --> 00:15:50,600 Speaker 4: it would have to be done very soon because the 285 00:15:50,640 --> 00:15:53,920 Speaker 4: primary might not be intil August. Candidates have to file 286 00:15:54,080 --> 00:15:57,440 Speaker 4: before that. I don't know the details of the Alabama process, 287 00:15:57,520 --> 00:16:00,320 Speaker 4: but we're now three to three and a half months 288 00:16:00,360 --> 00:16:03,760 Speaker 4: before that primary. Typically candidates need to file before then 289 00:16:03,800 --> 00:16:07,200 Speaker 4: and know what districts they're running in, and the election 290 00:16:07,240 --> 00:16:10,160 Speaker 4: commissioners the state local election boards need to have that 291 00:16:10,400 --> 00:16:14,920 Speaker 4: done asaay. And so I think, actually, if the Court's 292 00:16:14,960 --> 00:16:18,120 Speaker 4: going to do something here, I expect they'll be next week. 293 00:16:18,120 --> 00:16:20,160 Speaker 4: I mean, they really don't have much time. However, this 294 00:16:20,200 --> 00:16:23,520 Speaker 4: election is going to happen. I think the administrators need 295 00:16:23,560 --> 00:16:26,040 Speaker 4: to know this already. I mean, they need to know it. 296 00:16:26,120 --> 00:16:28,360 Speaker 4: Yesterday they said they need to know it very soon, 297 00:16:28,760 --> 00:16:30,520 Speaker 4: and the candidates need to know it so they know 298 00:16:30,560 --> 00:16:34,000 Speaker 4: where they're running. So hopefully, I mean what they of 299 00:16:34,000 --> 00:16:36,200 Speaker 4: the weeks, I mean, they really should do it over 300 00:16:36,240 --> 00:16:38,400 Speaker 4: the weekend, but early next week. And obviously this is 301 00:16:38,400 --> 00:16:40,600 Speaker 4: while they're also doing all of their other major cases. 302 00:16:40,720 --> 00:16:43,960 Speaker 1: And the three judge panel heard testimony from Alabama's Director 303 00:16:44,000 --> 00:16:48,160 Speaker 1: of Elections who acknowledge that when the voter reassignment process 304 00:16:48,360 --> 00:16:52,680 Speaker 1: is rushed, voters may accidentally be assigned to the wrong 305 00:16:52,760 --> 00:16:56,800 Speaker 1: district and provided the wrong ballot. That's apparently happened before, 306 00:16:57,120 --> 00:16:59,080 Speaker 1: and which there's been a lot of criticism of the 307 00:16:59,160 --> 00:17:04,640 Speaker 1: Supreme Court, calling the conservative justices out for this Calais decision, 308 00:17:04,880 --> 00:17:07,640 Speaker 1: and it was six to three with the Democratic appointees 309 00:17:07,920 --> 00:17:12,720 Speaker 1: in descent. And if the Supreme Court reversed this Alabama decision, 310 00:17:13,080 --> 00:17:16,040 Speaker 1: wouldn't it open them up to more claims of partisanship. 311 00:17:16,400 --> 00:17:19,000 Speaker 4: Yeah, I mean, and again I think maybe less likely 312 00:17:19,119 --> 00:17:22,080 Speaker 4: to reverse it versus I think it's stay is more 313 00:17:22,119 --> 00:17:25,200 Speaker 4: plausible because in some ways that comes across as well. 314 00:17:25,480 --> 00:17:27,360 Speaker 4: I mean, some sense that almost makes sense. We don't 315 00:17:27,400 --> 00:17:29,560 Speaker 4: have time to think about this, and it just really 316 00:17:29,640 --> 00:17:31,800 Speaker 4: turns on what you think the status quod. I think 317 00:17:31,800 --> 00:17:34,520 Speaker 4: it would be hard for them to reverse it on 318 00:17:34,640 --> 00:17:37,080 Speaker 4: the shadow docket because there's a lot of substance here. 319 00:17:37,080 --> 00:17:39,359 Speaker 4: That doesn't mean they won't. I think it's stay is 320 00:17:39,440 --> 00:17:43,159 Speaker 4: more plausible because the state can emphasize, you know, the 321 00:17:43,160 --> 00:17:45,000 Speaker 4: fact that these are heart issues, but that there's an 322 00:17:45,000 --> 00:17:49,439 Speaker 4: election happening, and that the baseline is the twenty twenty 323 00:17:49,440 --> 00:17:52,560 Speaker 4: three map, which the state legislature did adopt, was the 324 00:17:52,600 --> 00:17:55,639 Speaker 4: twenty four map was imposed by a quarter Special Master, 325 00:17:56,240 --> 00:17:59,280 Speaker 4: and the spring cut has tended to prefer maps that 326 00:17:59,320 --> 00:18:02,040 Speaker 4: were adopted by the legislatures, most according post one, so 327 00:18:02,400 --> 00:18:04,439 Speaker 4: it would not surprise me if there was a stay. 328 00:18:04,480 --> 00:18:06,840 Speaker 4: I think a substant of reversal would be a lot 329 00:18:06,880 --> 00:18:07,320 Speaker 4: more work. 330 00:18:07,680 --> 00:18:11,800 Speaker 1: Since the Calais decision, Southern states have been in a 331 00:18:11,880 --> 00:18:16,359 Speaker 1: sort of frenzy to reshape voting districts to eliminate House 332 00:18:16,400 --> 00:18:21,159 Speaker 1: seats held by black representatives. But this week South Carolina 333 00:18:21,280 --> 00:18:25,199 Speaker 1: state senators adjourned without drawing up a new map to 334 00:18:25,280 --> 00:18:30,919 Speaker 1: eliminate that state's one majority black House seat. Five Republicans 335 00:18:31,040 --> 00:18:35,159 Speaker 1: joined Democrats, basically saying it was too late because tens 336 00:18:35,160 --> 00:18:39,080 Speaker 1: of thousands of votes had already been cast and what 337 00:18:39,119 --> 00:18:40,240 Speaker 1: would they do about that? 338 00:18:40,480 --> 00:18:42,960 Speaker 4: But remember had already started in Louisiana when the state 339 00:18:43,080 --> 00:18:44,879 Speaker 4: changed it, and I think it was about to start 340 00:18:44,960 --> 00:18:48,520 Speaker 4: in Alabama. I do wonder about South Carolina whether one 341 00:18:48,600 --> 00:18:50,439 Speaker 4: thing is it may be that it's so late that 342 00:18:50,680 --> 00:18:53,760 Speaker 4: Trump can't primary them as he did the Republicans who 343 00:18:53,760 --> 00:18:56,040 Speaker 4: didn't go his way in Indiana, and the other, of 344 00:18:56,040 --> 00:18:58,760 Speaker 4: course the district is getting rid of was Jim Clyburn. 345 00:18:59,080 --> 00:19:01,840 Speaker 4: He's in his eighties. He's an icon of South Carolina. 346 00:19:02,600 --> 00:19:05,639 Speaker 4: It maybe that they're kind of banking on him retiring, 347 00:19:06,280 --> 00:19:09,000 Speaker 4: or that it may be easier in a future year, 348 00:19:09,440 --> 00:19:11,800 Speaker 4: like next year, to get rid of it. They might 349 00:19:11,880 --> 00:19:14,560 Speaker 4: change it for twenty twenty eight, and maybe at that 350 00:19:14,720 --> 00:19:16,879 Speaker 4: point they would give him kind of a signal to 351 00:19:16,960 --> 00:19:19,600 Speaker 4: retire and it would be more of a blind slate. 352 00:19:19,800 --> 00:19:22,119 Speaker 4: They may not want to be seen as taking out, 353 00:19:22,200 --> 00:19:26,439 Speaker 4: you know, kind of a longstanding important figure in the state. 354 00:19:26,800 --> 00:19:29,119 Speaker 4: And then that it might be easier that he retires, 355 00:19:29,200 --> 00:19:31,320 Speaker 4: or if they rewrite the map, that might persuade him 356 00:19:31,359 --> 00:19:33,400 Speaker 4: to retire. Right now, it's too late. 357 00:19:33,840 --> 00:19:37,160 Speaker 1: And in Florida, where there are four seats that Dessanti 358 00:19:37,240 --> 00:19:41,800 Speaker 1: is created for Republicans, a judge who's a Dessanti's appointee 359 00:19:42,200 --> 00:19:45,240 Speaker 1: rule that the state could continue to use those maps, 360 00:19:45,560 --> 00:19:49,840 Speaker 1: even though they have a law against partisan gerrymandering, and 361 00:19:49,920 --> 00:19:53,080 Speaker 1: even though a dessanti is aide who drew the new 362 00:19:53,160 --> 00:19:56,040 Speaker 1: map said that he had done so based partly on 363 00:19:56,160 --> 00:19:59,560 Speaker 1: the part is in breakdown of voters. But still the 364 00:19:59,640 --> 00:20:04,919 Speaker 1: judge said there was insufficient evidence of impermissible intent, and 365 00:20:04,960 --> 00:20:07,720 Speaker 1: he also cited the Percell principle to keep in place 366 00:20:07,800 --> 00:20:10,880 Speaker 1: the map that just was made in May. 367 00:20:11,800 --> 00:20:14,240 Speaker 4: That is a problem with the per cell principle is 368 00:20:14,240 --> 00:20:17,960 Speaker 4: that it only applies to courts. It doesn't apply to legislatures, 369 00:20:18,240 --> 00:20:20,359 Speaker 4: so they can do whatever they want. And indeed, you 370 00:20:20,400 --> 00:20:23,480 Speaker 4: see the Alabama three judge courts sort of basically saying, well, 371 00:20:23,520 --> 00:20:26,280 Speaker 4: the reason we're doing this is at this point we're 372 00:20:26,320 --> 00:20:29,280 Speaker 4: concerned about the disruption caused by the legislatures. So we're 373 00:20:29,280 --> 00:20:31,560 Speaker 4: not so concerned about our disruption because for one thing, 374 00:20:31,600 --> 00:20:34,200 Speaker 4: also the plaintiffs came to court instantly. The other thing 375 00:20:34,200 --> 00:20:37,080 Speaker 4: that I found troubling is that he raised some questions about, 376 00:20:37,160 --> 00:20:41,040 Speaker 4: in some sense the constitutionality of the Flora constitutional provision 377 00:20:41,440 --> 00:20:44,320 Speaker 4: that Bar's part is in jerrymnnerin because it was enacted 378 00:20:44,320 --> 00:20:48,159 Speaker 4: as part of a general provision dealing with districting and 379 00:20:48,280 --> 00:20:52,120 Speaker 4: it provided for some attention to race, and he suggested, well, 380 00:20:52,119 --> 00:20:56,159 Speaker 4: maybe that's unconstitutional now after Cala, which I don't know 381 00:20:56,160 --> 00:20:58,880 Speaker 4: that that's ripe, and he raised that question. If that's 382 00:20:58,920 --> 00:21:01,440 Speaker 4: the case, the whole amendment fails. I mean, again, it's 383 00:21:01,440 --> 00:21:05,479 Speaker 4: a pretty audacious argument to say that both the tension 384 00:21:05,520 --> 00:21:09,199 Speaker 4: to race that the Florida Constitution has as unconstitutionals, but 385 00:21:09,200 --> 00:21:11,280 Speaker 4: then to say that the fact that that part might 386 00:21:11,359 --> 00:21:14,040 Speaker 4: be taint the entire amendment and so you can't even 387 00:21:14,160 --> 00:21:17,800 Speaker 4: enforce the anti partisan part. Leaving aside his factual finding. 388 00:21:18,119 --> 00:21:20,439 Speaker 4: Now he is only an intermediate judge. Or could go 389 00:21:20,440 --> 00:21:24,160 Speaker 4: to Florida Supreme Court again they had the same timing problem, 390 00:21:24,600 --> 00:21:26,479 Speaker 4: and of course again it is a court. I think 391 00:21:26,520 --> 00:21:28,879 Speaker 4: all the judges are Republican, and many of them, if 392 00:21:28,920 --> 00:21:31,720 Speaker 4: not most of them, were probably appointed by Governor DeSantis. 393 00:21:31,960 --> 00:21:34,920 Speaker 1: Yes, all of the judges are Republican, and six out 394 00:21:34,920 --> 00:21:38,800 Speaker 1: of seven were appointed by DeSantis, so that looks like 395 00:21:38,800 --> 00:21:43,639 Speaker 1: an uphill battle. Finally, once the primaries are over, do 396 00:21:43,680 --> 00:21:46,960 Speaker 1: you think candidates that lost their seats because of this 397 00:21:47,400 --> 00:21:53,679 Speaker 1: redistricting to eliminate black majority districts have any challenges they 398 00:21:53,720 --> 00:21:54,280 Speaker 1: can raise? 399 00:21:54,840 --> 00:21:56,760 Speaker 4: I mean, I think these mitigations are all going to 400 00:21:56,760 --> 00:21:59,760 Speaker 4: be resolved very soon. Courts are going to stop hearing 401 00:21:59,760 --> 00:22:02,479 Speaker 4: them in and it is may going into June. I 402 00:22:02,520 --> 00:22:04,400 Speaker 4: don't think that's going to be the issue. I think 403 00:22:04,440 --> 00:22:07,040 Speaker 4: whoever wins is going to win. I do think we 404 00:22:07,119 --> 00:22:10,280 Speaker 4: may see still more redistricting next year for the one 405 00:22:10,400 --> 00:22:13,480 Speaker 4: that was too late. This year. You know, I think Maryland, 406 00:22:13,520 --> 00:22:17,320 Speaker 4: where the Democratic legislative leadership declined to get rid of 407 00:22:17,359 --> 00:22:20,520 Speaker 4: the remaining republicancy after what happened in the other states 408 00:22:20,600 --> 00:22:23,120 Speaker 4: and after Cala, they and I seem inclined to do that. 409 00:22:23,800 --> 00:22:26,720 Speaker 4: It's possible that New York will do it. I think 410 00:22:26,760 --> 00:22:29,639 Speaker 4: we will see at the end of the current legislative session. 411 00:22:30,000 --> 00:22:32,119 Speaker 4: New York would require state cons social amendment, and that 412 00:22:32,160 --> 00:22:36,080 Speaker 4: requires action by two legislatures and a voter approval. I 413 00:22:36,080 --> 00:22:38,520 Speaker 4: think we will see during New York State legislature pass 414 00:22:39,119 --> 00:22:43,960 Speaker 4: several alternative con social amendments, and then next year, which 415 00:22:43,960 --> 00:22:45,880 Speaker 4: is the year they really have to make up their minds, 416 00:22:46,240 --> 00:22:49,000 Speaker 4: pass one of them as to the voters in twenty 417 00:22:49,119 --> 00:22:52,520 Speaker 4: twenty seven, which would allow changing the congressional districts in 418 00:22:52,600 --> 00:22:55,840 Speaker 4: New York. Maybe now in Indiana, now that the Trump 419 00:22:55,840 --> 00:22:57,440 Speaker 4: has gotten rid of some of the Republicans, they might 420 00:22:57,480 --> 00:23:00,359 Speaker 4: come back and get rid of a Democratic district. Maybe 421 00:23:00,359 --> 00:23:02,879 Speaker 4: South Collinor will change. So I think we're not done. 422 00:23:03,040 --> 00:23:07,040 Speaker 1: And what about in Virginia where the state Supreme Court 423 00:23:07,119 --> 00:23:11,840 Speaker 1: there voided a statewide referendum. Can Democrats try for a 424 00:23:11,880 --> 00:23:12,480 Speaker 1: redo there? 425 00:23:12,760 --> 00:23:14,520 Speaker 4: They might try again. I mean I think it was 426 00:23:14,560 --> 00:23:16,959 Speaker 4: a herculean effort in Virginia to get through what they 427 00:23:17,000 --> 00:23:18,720 Speaker 4: got through and then to have a court throw it 428 00:23:18,720 --> 00:23:21,560 Speaker 4: out on how you would say technicality was a real technicality, 429 00:23:21,560 --> 00:23:24,440 Speaker 4: I mean very technical, somewhat similar to the New York 430 00:23:24,480 --> 00:23:27,960 Speaker 4: issue about it has to have been done between elections. 431 00:23:28,320 --> 00:23:30,560 Speaker 4: It's conceivable, but it was really hard for not to 432 00:23:30,560 --> 00:23:32,960 Speaker 4: pass it in the first place. So who knows that 433 00:23:33,000 --> 00:23:35,400 Speaker 4: they might try again. Yeah, So I don't think we're 434 00:23:35,440 --> 00:23:37,320 Speaker 4: done on this. I think we may hear more from 435 00:23:37,359 --> 00:23:38,160 Speaker 4: the Blue States. 436 00:23:38,560 --> 00:23:41,040 Speaker 1: This is one area where you can directly see the 437 00:23:41,119 --> 00:23:46,600 Speaker 1: effects of Supreme Court decisions over the years weakening protections 438 00:23:46,600 --> 00:23:49,240 Speaker 1: of the Voting Rights Act. Thanks so much, rich for 439 00:23:49,280 --> 00:23:53,680 Speaker 1: your insights in this complicated area. That's Professor Richard Bruffault 440 00:23:53,880 --> 00:23:57,280 Speaker 1: of Columbia Law School coming up next on the Bloomberg 441 00:23:57,359 --> 00:24:01,000 Speaker 1: Law Show. For the first time, the FDA allows the 442 00:24:01,160 --> 00:24:05,600 Speaker 1: sale of unapproved e cigarettes. I'm June Grosso and you're 443 00:24:05,680 --> 00:24:13,359 Speaker 1: listening to Bloomberg. New FDA guidelines allow companies to sell 444 00:24:13,560 --> 00:24:18,400 Speaker 1: unapproved electronic cigarettes and nicotine pouches, and that includes the 445 00:24:18,440 --> 00:24:22,639 Speaker 1: fruit flavored vapes that are especially appealing to kids. This 446 00:24:22,760 --> 00:24:29,200 Speaker 1: breaks with long standing FDA policy requiring scientific verification before 447 00:24:29,240 --> 00:24:33,720 Speaker 1: any new products are introduced. Senior officials in the agency's 448 00:24:33,800 --> 00:24:38,200 Speaker 1: Tobacco Center were blindsided by the new guidelines, according to 449 00:24:38,240 --> 00:24:42,640 Speaker 1: the Associated Press, and earlier this month, the FDA authorized 450 00:24:42,680 --> 00:24:46,800 Speaker 1: this sale of mango and blueberry flavored vapes, the first 451 00:24:46,880 --> 00:24:50,280 Speaker 1: time fruit flavored vapes have been authorized. At a hearing 452 00:24:50,359 --> 00:24:54,720 Speaker 1: last week, Democratic Senator Dick Durbin of Illinois question the 453 00:24:54,800 --> 00:24:59,880 Speaker 1: director of the NIH, doctor J. Baticaria, about the FDA's act. 454 00:25:00,760 --> 00:25:03,800 Speaker 3: Do you realize that the announced policy of this administration 455 00:25:03,920 --> 00:25:06,359 Speaker 3: within the last two weeks is going to make it 456 00:25:06,400 --> 00:25:10,560 Speaker 3: easier for these companies to peddle fruit Monster vaping, Candy 457 00:25:10,640 --> 00:25:15,639 Speaker 3: King vaping, Raspberry Slushy bake vaping to our children and 458 00:25:15,800 --> 00:25:17,000 Speaker 3: junior high in high school. 459 00:25:17,000 --> 00:25:20,600 Speaker 2: Now, Senator, I think that vaping for kids is a 460 00:25:20,680 --> 00:25:22,920 Speaker 2: dangerous thing, and I think that is the role of 461 00:25:22,960 --> 00:25:25,960 Speaker 2: the NIH isn't to set policy. It's to do research 462 00:25:26,000 --> 00:25:29,480 Speaker 2: to document the ways to address these health problems. 463 00:25:29,600 --> 00:25:34,400 Speaker 3: We've conceded the obvious. They're peddling flavors that attract children, 464 00:25:35,160 --> 00:25:37,640 Speaker 3: children who don't have the maturity to make the decision, 465 00:25:38,280 --> 00:25:40,920 Speaker 3: and they become addicted to a product which is dangerous 466 00:25:40,920 --> 00:25:41,439 Speaker 3: to them. 467 00:25:41,640 --> 00:25:44,320 Speaker 1: Of the more than one point six million middle and 468 00:25:44,440 --> 00:25:48,840 Speaker 1: high school students who currently vape, nearly ninety percent use 469 00:25:48,960 --> 00:25:53,400 Speaker 1: flavored east cigarettes, with fruit flavors being the most popular. 470 00:25:53,840 --> 00:25:57,159 Speaker 1: My guest is healthcare attorney Harry Nelson, a partner at 471 00:25:57,240 --> 00:26:01,760 Speaker 1: Leech Tishman Nelson Hardiman, tell us about these new rules. 472 00:26:02,640 --> 00:26:06,000 Speaker 5: So, we have this law, that Tobacco Control Act, which 473 00:26:06,280 --> 00:26:10,080 Speaker 5: requires that new tobacco products can't be legally marketed without 474 00:26:10,200 --> 00:26:13,359 Speaker 5: pre market authorization. And the law gives the FDA the 475 00:26:13,400 --> 00:26:17,280 Speaker 5: power to deny this pre market authorization unless there's a 476 00:26:17,359 --> 00:26:21,240 Speaker 5: showing that the product would appropriately protect the public health. 477 00:26:21,680 --> 00:26:24,480 Speaker 5: And so what's happened now is that the FDA put 478 00:26:24,520 --> 00:26:27,840 Speaker 5: out a guidance statement that it's not going to prioritize 479 00:26:28,440 --> 00:26:33,080 Speaker 5: enforcement against certain unauthorized e cigarette products and nicotine oral 480 00:26:33,160 --> 00:26:36,520 Speaker 5: nicotine pouch products, Meaning the government basically said, even though 481 00:26:36,520 --> 00:26:40,200 Speaker 5: these products are not legally on the market, the government 482 00:26:40,359 --> 00:26:42,760 Speaker 5: is not going to go after them. 483 00:26:43,080 --> 00:26:48,640 Speaker 1: And this breaks with the FDA policy of requiring scientific verification. 484 00:26:49,400 --> 00:26:53,560 Speaker 5: Yeah, this is definitely a relaxation of the federal policy 485 00:26:53,720 --> 00:26:58,240 Speaker 5: of being tough on tobacco products and being concerned about 486 00:26:58,240 --> 00:27:01,520 Speaker 5: public health, and it's basically the FDA saying this is 487 00:27:01,560 --> 00:27:04,879 Speaker 5: a low priority and even though what you're doing is 488 00:27:05,000 --> 00:27:08,480 Speaker 5: not legal, let's call it at best grain market, these 489 00:27:08,520 --> 00:27:10,919 Speaker 5: products can stay on the shelves the stores even though 490 00:27:10,960 --> 00:27:13,800 Speaker 5: they're still in scientific review, even though the FDA has 491 00:27:13,880 --> 00:27:16,639 Speaker 5: not ruled on them. And this is really a flip 492 00:27:16,640 --> 00:27:18,600 Speaker 5: from where we were, you know, just a year and 493 00:27:18,640 --> 00:27:21,720 Speaker 5: a half ago, where the FDA rejected the idea that 494 00:27:21,840 --> 00:27:25,600 Speaker 5: having an application on file was sufficient to create a 495 00:27:25,600 --> 00:27:27,840 Speaker 5: safe harbor to allow these products to be out there. 496 00:27:27,960 --> 00:27:30,199 Speaker 5: So previously the FDA would not allow these products to 497 00:27:30,200 --> 00:27:33,680 Speaker 5: be on shelves, And now it sounds like the enforcement 498 00:27:33,720 --> 00:27:36,760 Speaker 5: climate has really completely gone one hundred and eighty degrees 499 00:27:36,800 --> 00:27:40,280 Speaker 5: and the FDA is going to basically soften its position 500 00:27:40,359 --> 00:27:43,200 Speaker 5: and allow a new lane kind of for grain market 501 00:27:43,240 --> 00:27:44,160 Speaker 5: tobacco products. 502 00:27:44,400 --> 00:27:47,800 Speaker 1: I mean, is this odd timing because it was posted 503 00:27:48,400 --> 00:27:52,240 Speaker 1: just days before the former FDA commissioner resigned. 504 00:27:52,600 --> 00:27:56,320 Speaker 5: Yeah, it definitely seems like this kind of reflects a 505 00:27:56,359 --> 00:27:59,840 Speaker 5: little bit of the chaos that is going on in 506 00:28:00,080 --> 00:28:02,680 Speaker 5: the FDA. A lot of the reporting around the story 507 00:28:02,720 --> 00:28:06,320 Speaker 5: has emphasized that the senior leadership and the staff within 508 00:28:06,400 --> 00:28:11,440 Speaker 5: the Tobacco Center were basically blindsided, and that this appeared 509 00:28:11,520 --> 00:28:15,520 Speaker 5: just before Commissioner Maccari resigned, So there seems to be 510 00:28:16,040 --> 00:28:19,200 Speaker 5: a lot of upheaval and a little bit of chaos 511 00:28:19,200 --> 00:28:23,400 Speaker 5: at the FDA, and certainly nobody who's in the tobacco 512 00:28:23,440 --> 00:28:26,960 Speaker 5: regulation group at the FDA saw this coming or seems 513 00:28:26,960 --> 00:28:29,400 Speaker 5: to be supportive of this new relax in action. 514 00:28:29,760 --> 00:28:34,200 Speaker 1: So the FDA spokesperson said, this approach strengthen's protections against 515 00:28:34,240 --> 00:28:39,400 Speaker 1: youth nicotine addiction while supporting evidence based alternatives for adult 516 00:28:39,440 --> 00:28:44,200 Speaker 1: smoke or seeking to move away from combustible tobacco products whatever. 517 00:28:44,240 --> 00:28:47,680 Speaker 5: That it's interesting. Certainly even the folks in the administration 518 00:28:47,800 --> 00:28:51,160 Speaker 5: who are supporting the relaxation of tobacco are trying to 519 00:28:51,200 --> 00:28:53,880 Speaker 5: emphasize that this is for adult products and that they 520 00:28:53,880 --> 00:28:57,840 Speaker 5: are not loosening standards on tobacco products that are being 521 00:28:57,920 --> 00:29:01,880 Speaker 5: used by minors. So they're trying to, you know, still 522 00:29:02,440 --> 00:29:05,880 Speaker 5: reserve the right to be more aggressive in enforcement against 523 00:29:06,160 --> 00:29:09,800 Speaker 5: products that appeal to teens and to focus on just 524 00:29:09,960 --> 00:29:14,680 Speaker 5: letting adults have more leeway and just not investing enforcement 525 00:29:14,720 --> 00:29:16,960 Speaker 5: dollars into this product market. 526 00:29:17,200 --> 00:29:23,160 Speaker 1: Hasn't the FDA resisted approving fruit flavored or candy flavored 527 00:29:23,280 --> 00:29:27,280 Speaker 1: vapes because those are the flavors that attract kids. I mean, 528 00:29:27,320 --> 00:29:30,440 Speaker 1: the Supreme Court even heard a case and upheld the 529 00:29:30,720 --> 00:29:35,800 Speaker 1: agency's authority to deny marketing applications for fruit and dessert 530 00:29:35,840 --> 00:29:37,160 Speaker 1: flavored e cigarettes. 531 00:29:37,640 --> 00:29:40,360 Speaker 5: So why now, right by the way, there's something like 532 00:29:40,440 --> 00:29:43,560 Speaker 5: over forty e cigarette products and already twenty of these 533 00:29:43,720 --> 00:29:47,360 Speaker 5: like flavored pouch varieties out there. I think the FDA 534 00:29:47,400 --> 00:29:49,560 Speaker 5: has been trying to walk a line, and I think 535 00:29:49,560 --> 00:29:51,680 Speaker 5: the line shifted a little bit this week. But I 536 00:29:51,720 --> 00:29:54,840 Speaker 5: think even now, you know, the administration's position is that 537 00:29:55,120 --> 00:29:59,800 Speaker 5: protecting teen smokers from products that are clearly appealing to 538 00:29:59,840 --> 00:30:02,360 Speaker 5: ki is still a problem and still something they're going 539 00:30:02,400 --> 00:30:05,080 Speaker 5: to pursue. But the real message that they're trying to emphasize, 540 00:30:05,120 --> 00:30:09,320 Speaker 5: I think was loosening the rules on adult tobacco products. 541 00:30:09,600 --> 00:30:13,640 Speaker 1: The number of underaged vapors has gone down still, about 542 00:30:13,680 --> 00:30:17,520 Speaker 1: one point sixty three million middle and high school students 543 00:30:17,640 --> 00:30:22,120 Speaker 1: currently vape. That's a decrease from two point one three 544 00:30:22,280 --> 00:30:25,239 Speaker 1: million in twenty twenty three. I don't know if that 545 00:30:25,360 --> 00:30:26,640 Speaker 1: plays any part in this. 546 00:30:27,280 --> 00:30:29,320 Speaker 5: A lot of the efforts of the last couple of 547 00:30:29,360 --> 00:30:34,680 Speaker 5: years have definitely reduced use, particularly in and around schools. 548 00:30:34,720 --> 00:30:37,280 Speaker 5: There was a lot of attention obviously to you know, 549 00:30:37,400 --> 00:30:41,080 Speaker 5: the nicodeine addiction risk, the potential effect on brain development 550 00:30:41,200 --> 00:30:45,560 Speaker 5: of like anxiety and add ADHD mood issues coming up 551 00:30:45,600 --> 00:30:48,880 Speaker 5: from these, and just the kind of significant marketing, and 552 00:30:48,920 --> 00:30:51,760 Speaker 5: we saw a lot of schools cracked down on this. 553 00:30:51,880 --> 00:30:54,880 Speaker 5: We saw like social media, you know, sort of really 554 00:30:54,920 --> 00:30:57,120 Speaker 5: tamping down. So it would not surprise me if there 555 00:30:57,160 --> 00:31:00,240 Speaker 5: has been a reduction, although I think there's still is 556 00:31:00,280 --> 00:31:04,560 Speaker 5: clearly a significant use of flavored disposable vapes among teens, 557 00:31:04,680 --> 00:31:08,760 Speaker 5: and still a problem of social networks being used to 558 00:31:08,920 --> 00:31:12,000 Speaker 5: get kids who are too young getting them vapes. There 559 00:31:12,040 --> 00:31:15,719 Speaker 5: still is a problem of illegal retail sales happening, and 560 00:31:15,760 --> 00:31:17,520 Speaker 5: I think, honestly at one of the big pieces of 561 00:31:17,560 --> 00:31:20,600 Speaker 5: the story is that we're going to see states, particularly 562 00:31:20,960 --> 00:31:23,280 Speaker 5: filling the void, you know, as we've seen in other 563 00:31:23,360 --> 00:31:26,480 Speaker 5: areas of federal enforcement, when the federal government sort of 564 00:31:26,480 --> 00:31:29,080 Speaker 5: steps back a little bit, We're going to see many 565 00:31:29,120 --> 00:31:32,160 Speaker 5: states kind of step up and crack down much more 566 00:31:32,160 --> 00:31:32,480 Speaker 5: on this. 567 00:31:33,000 --> 00:31:36,479 Speaker 1: Harry, I'm wondering if these new rules have anything to 568 00:31:36,600 --> 00:31:40,760 Speaker 1: do with Trump, who when he came to office, promised 569 00:31:40,760 --> 00:31:44,880 Speaker 1: that he would save the vaping industry, and big tobacco 570 00:31:45,000 --> 00:31:49,720 Speaker 1: companies have made contributions to Trump and his causes. 571 00:31:50,000 --> 00:31:52,200 Speaker 5: There's no question that this is a case where the 572 00:31:52,240 --> 00:31:55,120 Speaker 5: federal government is sort of throwing a bone to the 573 00:31:55,160 --> 00:31:59,280 Speaker 5: tobacco industry that they're really giving them a little bit 574 00:31:59,280 --> 00:32:03,120 Speaker 5: of room here to ramp up sales and signaling kind 575 00:32:03,120 --> 00:32:06,000 Speaker 5: of a more permissive environment. So I do think this 576 00:32:06,320 --> 00:32:10,120 Speaker 5: is clearly a big win for big tobacco and a 577 00:32:10,160 --> 00:32:13,400 Speaker 5: setback for everybody who've invested in, you know, public health 578 00:32:13,680 --> 00:32:16,760 Speaker 5: sort of anti tobacco efforts. So you know, particularly companies 579 00:32:16,840 --> 00:32:20,600 Speaker 5: that have applications pending are going to benefit by being 580 00:32:20,600 --> 00:32:23,440 Speaker 5: able to promote those products more. They don't have to 581 00:32:23,440 --> 00:32:27,280 Speaker 5: be as nervous about the unapproved status of their applications. 582 00:32:27,640 --> 00:32:29,400 Speaker 5: So those are going to be the biggest winners within 583 00:32:29,440 --> 00:32:30,320 Speaker 5: the tobacco industry. 584 00:32:30,720 --> 00:32:33,640 Speaker 1: Because I can't think of any reason to do this 585 00:32:34,320 --> 00:32:37,120 Speaker 1: as far as public health is concerned. 586 00:32:37,800 --> 00:32:39,840 Speaker 5: You know, I think this is a little bit of 587 00:32:39,880 --> 00:32:43,880 Speaker 5: a signal that the federal government is kind of moving 588 00:32:43,960 --> 00:32:45,880 Speaker 5: out of, I don't know what you want to call it, 589 00:32:45,960 --> 00:32:49,360 Speaker 5: the nanny state. A lot of the public health protections 590 00:32:49,480 --> 00:32:53,920 Speaker 5: where we've seen federal stepping back have been about individual choice, 591 00:32:54,000 --> 00:32:56,200 Speaker 5: even where it's not consistent with public health. 592 00:32:56,280 --> 00:32:56,400 Speaker 3: Right. 593 00:32:56,440 --> 00:33:00,160 Speaker 5: We've seen that with like federal rollbacks on environmental and 594 00:33:00,160 --> 00:33:01,080 Speaker 5: climate regulation. 595 00:33:01,320 --> 00:33:01,520 Speaker 3: Right. 596 00:33:01,600 --> 00:33:04,520 Speaker 5: I think we see that the states are getting more 597 00:33:04,520 --> 00:33:06,960 Speaker 5: aggressive and then a lot of directions the federal government's 598 00:33:06,960 --> 00:33:09,320 Speaker 5: moving in the opposite direction. And I think it partly 599 00:33:09,480 --> 00:33:14,320 Speaker 5: is about some skepticism about broad federal administrative power. And 600 00:33:14,720 --> 00:33:17,920 Speaker 5: when people perfectarly on the right are talking about smaller government, 601 00:33:17,960 --> 00:33:22,840 Speaker 5: part of what that means is less activist laws limiting commerce. 602 00:33:22,960 --> 00:33:23,160 Speaker 4: Right. 603 00:33:23,200 --> 00:33:24,920 Speaker 5: I think this is one of those examples. 604 00:33:25,120 --> 00:33:28,760 Speaker 1: Harry. Let's turn to another issue around FDA approval and 605 00:33:28,800 --> 00:33:33,520 Speaker 1: the authority of the FDA concerning MiFi pristone, the most 606 00:33:33,560 --> 00:33:37,080 Speaker 1: widely used abortion pill, and about two weeks ago, a 607 00:33:37,160 --> 00:33:41,760 Speaker 1: divided Supreme Court continued to allow mifipristone to be dispensed 608 00:33:41,800 --> 00:33:45,480 Speaker 1: by mail. But the fight over MiFi pristone is going 609 00:33:45,520 --> 00:33:47,040 Speaker 1: to come back to the court, isn't it. 610 00:33:47,760 --> 00:33:51,040 Speaker 5: I mean, my read on the Supreme Court decision is 611 00:33:51,120 --> 00:33:55,720 Speaker 5: that clearly the Supreme Court does not want to revisit this, 612 00:33:56,040 --> 00:34:00,880 Speaker 5: but clearly, you know, the states remain very active involved 613 00:34:00,880 --> 00:34:02,880 Speaker 5: in it. And so this is definitely not going to 614 00:34:02,920 --> 00:34:05,360 Speaker 5: be the last case where the Supreme Court is dealing 615 00:34:05,360 --> 00:34:08,680 Speaker 5: with mephipristone. The states are are still going to keep 616 00:34:08,760 --> 00:34:11,719 Speaker 5: arguing that the FDA is exceeding its authority under the Food, 617 00:34:11,760 --> 00:34:14,200 Speaker 5: Drug and Cosmetic Act, the same exact claim that was 618 00:34:14,200 --> 00:34:17,560 Speaker 5: made in this case, that the FDA improperly loosened the 619 00:34:18,000 --> 00:34:22,840 Speaker 5: risk Evaluation and Mitigation Studies REMS restrictions, And we're going 620 00:34:22,880 --> 00:34:26,399 Speaker 5: to see you know, continued fights right about how much 621 00:34:27,040 --> 00:34:30,440 Speaker 5: deference the courts should give the FDA on its scientific judgment. 622 00:34:30,680 --> 00:34:33,960 Speaker 5: And we're still going to see activist states, you know, 623 00:34:34,000 --> 00:34:37,719 Speaker 5: abortion restrictive states arguing that they have the right so 624 00:34:37,840 --> 00:34:41,080 Speaker 5: second guests the FDA, and that they can override kind 625 00:34:41,120 --> 00:34:43,440 Speaker 5: of a national drug approval based on their state policy. 626 00:34:43,560 --> 00:34:45,879 Speaker 5: So we're still in this environment where the states are 627 00:34:46,080 --> 00:34:51,160 Speaker 5: increasingly trying to compete in their different you know, regulatory 628 00:34:51,719 --> 00:34:54,160 Speaker 5: frameworks for this, and we're going to continue to see 629 00:34:54,239 --> 00:34:58,280 Speaker 5: a number of states trying to be more restrictive, blocking mailing, 630 00:34:58,440 --> 00:35:02,760 Speaker 5: blocking teleealth access, and this issue is not going anywhere. 631 00:35:02,760 --> 00:35:05,440 Speaker 5: And you know, I think for people on the reproductive 632 00:35:05,480 --> 00:35:08,759 Speaker 5: rights protection side of this fight. I think it is 633 00:35:08,840 --> 00:35:11,760 Speaker 5: good news that the Supreme Court is at least holding 634 00:35:11,840 --> 00:35:14,880 Speaker 5: true to what it said when it repealed re Vwad, 635 00:35:14,920 --> 00:35:16,919 Speaker 5: which was that it really wanted to send this issue 636 00:35:16,920 --> 00:35:19,359 Speaker 5: back to the States and wasn't going to, you know, 637 00:35:19,400 --> 00:35:22,920 Speaker 5: to intervene to support broader restriction. So this is at 638 00:35:23,000 --> 00:35:25,200 Speaker 5: least one way in which the Supreme Court has lived 639 00:35:25,280 --> 00:35:27,880 Speaker 5: up to that signal that it gave. And so I 640 00:35:27,920 --> 00:35:30,520 Speaker 5: do think it's a positive sign that the Supreme Court 641 00:35:30,960 --> 00:35:34,080 Speaker 5: is not wanting to get in the way of the FDA, 642 00:35:34,200 --> 00:35:35,879 Speaker 5: not wanting to get in the way of pharmacies. 643 00:35:36,320 --> 00:35:40,840 Speaker 1: And how many studies were done showing that mifipristone is safe, 644 00:35:41,280 --> 00:35:44,560 Speaker 1: but now the FDA is doing a new study, and 645 00:35:45,200 --> 00:35:49,320 Speaker 1: Bloomberg News reported in December that the FDA was slow 646 00:35:49,440 --> 00:35:54,600 Speaker 1: walking its safety study until after the midterm elections, although 647 00:35:54,640 --> 00:35:58,040 Speaker 1: Health and Human Services deny the report. 648 00:35:58,320 --> 00:36:00,879 Speaker 5: Yeah, it's very interesting. This is clearly a place where 649 00:36:00,960 --> 00:36:06,360 Speaker 5: the administration is not in a hurry to create political upheaval. Obviously, 650 00:36:06,400 --> 00:36:09,759 Speaker 5: this issue has been such a galvanizing one in past 651 00:36:09,800 --> 00:36:11,799 Speaker 5: election cycles. You know, I think a lot of people 652 00:36:11,800 --> 00:36:15,200 Speaker 5: are thought that this administration would reverse on the safety 653 00:36:15,280 --> 00:36:18,080 Speaker 5: and effectiveness of mefipristone. It's been, by the way, twenty 654 00:36:18,120 --> 00:36:21,719 Speaker 5: six years since clinical review, and really there is no 655 00:36:22,200 --> 00:36:24,960 Speaker 5: record of serious adverse events. So you know, the FDA 656 00:36:25,120 --> 00:36:29,400 Speaker 5: is clearly under competing political pressures, and it's clearly a 657 00:36:29,480 --> 00:36:33,480 Speaker 5: much more complicated landscape than a lot of people anticipated. 658 00:36:33,920 --> 00:36:37,440 Speaker 1: I guess we'll find out more about that after the midterms. 659 00:36:37,719 --> 00:36:40,680 Speaker 1: Thanks so much for joining me, Harry. That's healthcare attorney 660 00:36:40,719 --> 00:36:43,200 Speaker 1: Harry Nelson, and that's it for this edition of The 661 00:36:43,239 --> 00:36:46,200 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 662 00:36:46,239 --> 00:36:49,359 Speaker 1: legal news on our Bloomberg Law Podcast. You can find 663 00:36:49,360 --> 00:36:53,960 Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg 664 00:36:54,000 --> 00:36:57,799 Speaker 1: dot com, slash podcast slash Law, and remember to tune 665 00:36:57,800 --> 00:37:01,040 Speaker 1: into The Bloomberg Law Show every week at ten pm 666 00:37:01,120 --> 00:37:04,680 Speaker 1: Wall Street Time. I'm June Grosso, and you're listening to 667 00:37:04,719 --> 00:37:05,239 Speaker 1: Bloomberg