WEBVTT - Attempts to Keep Trump Off the Ballot 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.520 --> 0:00:12.719 Voters and advocacy groups in more than half the states 0:00:12.800 --> 0:00:16.680 are fighting to remove former President Donald Trump from state 0:00:16.760 --> 0:00:20.479 ballots under the disqualification clause of Section three of the 0:00:20.520 --> 0:00:24.880 fourteenth Amendment, which states that no person shall hold office 0:00:25.040 --> 0:00:27.840 if they have previously taken an oath as a member 0:00:27.920 --> 0:00:31.000 of Congress or as an officer of the United States, 0:00:31.320 --> 0:00:35.800 and engaged in insurrection or rebellion against the Constitution. But 0:00:36.000 --> 0:00:40.080 secretaries of state like Minnesota's Steve Simon, say they can 0:00:40.320 --> 0:00:42.520 enforce the fourteenth Amendment on their own. 0:00:43.040 --> 0:00:44.920 The ones who are going to make the legal cause 0:00:45.080 --> 0:00:48.080 about who engaged in what conduct and whether it rises 0:00:48.080 --> 0:00:51.360 to the level of constitutional disqualification, that's what a court 0:00:51.400 --> 0:00:51.760 will do. 0:00:52.000 --> 0:00:56.200 But so far courts in Colorado, Michigan, and Minnesota have 0:00:56.360 --> 0:01:00.600 refused to disqualified Trump. In fact, after a five days trial, 0:01:00.920 --> 0:01:05.040 Colorado Judge Sarah Wallace found that Trump did engage in 0:01:05.040 --> 0:01:08.959 insurrection during the January sixth attack on the US Capitol, 0:01:09.520 --> 0:01:13.160 but said he was not covered by Section three. Here 0:01:13.200 --> 0:01:16.520 to help explain it all is elections law expert Richard Brofald, 0:01:16.800 --> 0:01:20.039 a professor at Columbia Law School, Rich tell us about 0:01:20.040 --> 0:01:23.520 these legal challenges under Section three of the fourteenth Amendment. 0:01:24.120 --> 0:01:26.520 So there is a series of challenges of being brought 0:01:26.560 --> 0:01:30.280 to former President Trump's eligibility to be a candidate for 0:01:30.400 --> 0:01:33.880 president because of his actions during the course of the 0:01:34.040 --> 0:01:36.640 January sixth and attack on the Capitol and the real 0:01:36.720 --> 0:01:39.080 questions whether or not that is an insurrection. This has 0:01:39.120 --> 0:01:41.720 to do with a provision of the Fourteenth Amendment that 0:01:41.800 --> 0:01:44.480 was adopted in the aftermath of the Civil War that 0:01:44.680 --> 0:01:48.800 was intended to keep former US officials who then joined 0:01:48.840 --> 0:01:54.520 the Confederacy from being eligible to serve in US office again. 0:01:55.240 --> 0:01:58.200 It specifically says that for certain people, and one question 0:01:58.280 --> 0:02:02.360 is who's covered by it engaged in insurrection, that's the 0:02:02.440 --> 0:02:05.840 key language. If they engage in insurrection against the Constitution 0:02:05.920 --> 0:02:10.440 of the United States, they are ineligible to hold certain 0:02:10.919 --> 0:02:14.040 offices in the United States. And so number of people 0:02:14.120 --> 0:02:17.480 have argued that former President Trump, because of his activities 0:02:17.520 --> 0:02:22.240 and inactivities on January sixth, falls within that prohibition of 0:02:22.280 --> 0:02:25.720 being eligible to be president again. And so this has 0:02:25.760 --> 0:02:30.160 led to extended academic arguments and now a series of lawsuits. 0:02:30.760 --> 0:02:34.200 And these lawsuits raise a bunch of questions is what 0:02:34.320 --> 0:02:38.840 happened on January sixth and insurrection? Did the President engage 0:02:38.880 --> 0:02:42.200 in the insurrection by various speeches he gave, in statements 0:02:42.200 --> 0:02:45.080 he made, and actions he took and didn't take going 0:02:45.160 --> 0:02:48.240 up to and on January sixth, And another question that 0:02:48.280 --> 0:02:51.280 turns out to be surprisingly complicated is whether he's one 0:02:51.280 --> 0:02:54.560 of the people who is prohibited from holding office again, 0:02:54.960 --> 0:02:57.160 because the language section three of the fourteenth of them 0:02:57.200 --> 0:02:59.960 and uses is no person shall be a senator or 0:03:00.080 --> 0:03:04.320 representative in Congress, or an elector for president to vice president, 0:03:04.639 --> 0:03:08.160 or hold any office under the United States. And the 0:03:08.240 --> 0:03:11.400 question that has come up as with the president is 0:03:11.400 --> 0:03:14.720 somebody who holds an office under the United States. And 0:03:15.000 --> 0:03:18.760 although it may seem pretty obvious that the president obviously 0:03:18.760 --> 0:03:21.480 holds an office under the United States, many people have 0:03:21.680 --> 0:03:25.320 argued that the presidency is distinct and is not simply 0:03:25.360 --> 0:03:27.920 an office under the United States, but is its own thing. 0:03:29.520 --> 0:03:33.960 This Colorado Judge Wallace issued the first legal ruling that 0:03:34.040 --> 0:03:37.680 concluded that the former president had incited insurrection through his 0:03:37.760 --> 0:03:41.880 actions on January sixth, and that the First Amendment doesn't 0:03:41.880 --> 0:03:45.480 protect his actions. But then she went on to find 0:03:45.520 --> 0:03:48.520 that Section three doesn't cover presidents. 0:03:49.320 --> 0:03:52.640 That's correct, that's right. So yes, that's absolutely right. She 0:03:53.000 --> 0:03:56.400 basically said that what happened on January sixth was an insurrection, 0:03:56.800 --> 0:03:59.840 which is a violent attack on the government the United States, 0:04:00.360 --> 0:04:02.280 an official action the United States, which is counting the 0:04:02.280 --> 0:04:06.960 electoral votes. That President Trump engaged in the insurrection through 0:04:07.000 --> 0:04:10.120 the speeches he gave in citing the activity and his 0:04:10.600 --> 0:04:14.320 general build up in the days before January sixth of 0:04:14.360 --> 0:04:16.760 a sense amongst his supporters that something needs to be 0:04:16.800 --> 0:04:19.960 done to block accounting the electoral vote. And yes, the 0:04:20.040 --> 0:04:22.520 various statements he made, she concluded were not protected by 0:04:22.520 --> 0:04:25.840 the First Amendment because they were intended to incite violence. 0:04:26.160 --> 0:04:29.960 But then she concluded that he's not somebody subject to 0:04:30.040 --> 0:04:32.920 section three of a fourteenth Amendment because Section three the 0:04:32.960 --> 0:04:37.080 fourteenth Amendment refers to a senator, a representative in Congress, 0:04:37.320 --> 0:04:41.520 an elector for a president, or any other office civil 0:04:41.640 --> 0:04:44.799 or military under the United States or under any state. 0:04:45.160 --> 0:04:47.960 And the question comes up is whether or not the 0:04:47.960 --> 0:04:53.279 presidency is an office under the United States. And although 0:04:53.440 --> 0:04:56.800 intuitively it might seem that presidency of the ultimate office 0:04:56.839 --> 0:05:00.640 under the United States, she concluded that the the presidency 0:05:00.800 --> 0:05:03.320 is not, and she gave a couple of reasons for that. 0:05:04.000 --> 0:05:06.800 One is the way the Amendment is written and kind 0:05:06.800 --> 0:05:10.200 of written by naming some specific offices and kind of 0:05:10.360 --> 0:05:13.719 level of seniority for senator than representative, and sort it's 0:05:14.000 --> 0:05:17.640 noteworthy it doesn't actually stay president. And then she notes 0:05:17.640 --> 0:05:20.320 that there are several other provisions in the Constitution that 0:05:20.480 --> 0:05:24.719 distinguished between the president as a distinctive position and various 0:05:24.800 --> 0:05:28.040 kinds of offices in civil offices, and so she concluded 0:05:28.560 --> 0:05:33.080 that the presidency is itself not covered by the Fourteenth 0:05:33.120 --> 0:05:35.080 Amendment Section three. 0:05:35.240 --> 0:05:40.440 Trump's lawyer Scott Goessler, referring to the judge's conclusion that 0:05:40.560 --> 0:05:44.080 Trump engaged in insurrection, said it was a little bit 0:05:44.160 --> 0:05:46.480 unusual for her to spend a lot of time talking 0:05:46.520 --> 0:05:49.080 about that and then at the end rule that the 0:05:49.120 --> 0:05:50.800 Fourteenth Amendment didn't apply. 0:05:51.240 --> 0:05:53.880 It is interesting the opinion is one hundred and two 0:05:53.920 --> 0:05:56.600 pages long, and some of that is just there of 0:05:56.640 --> 0:06:00.000 procedural stuff, but she doesn't actually get to this question 0:06:00.160 --> 0:06:03.840 whether or not the presidency is an office under the 0:06:03.960 --> 0:06:07.039 United States or in office covered by section three of 0:06:07.080 --> 0:06:10.320 the Fourteenth Amendment until about page ninety five of this 0:06:10.320 --> 0:06:12.480 one hundred and two page opinion. So it does seem 0:06:12.520 --> 0:06:14.680 a bit odd. I guess you could say that obviously 0:06:14.720 --> 0:06:17.600 she's not the final say she is just the lower 0:06:17.680 --> 0:06:20.000 court judge. It's going to go up through the Colorado 0:06:20.360 --> 0:06:23.159 court system and maybe ultimately to the US Supreme Court. 0:06:23.680 --> 0:06:25.680 And so maybe in defense of what she did is 0:06:25.720 --> 0:06:28.680 she basically says, well, if you reverse me on the 0:06:28.800 --> 0:06:31.239 question of whether or not the presidency is an office 0:06:31.279 --> 0:06:34.800 covered by this, I've made findings on everything else that's relevant. 0:06:34.800 --> 0:06:38.880 Because other people have argued either that January sixth didn't 0:06:38.960 --> 0:06:41.320 rise at the level of an insurrection. It was a 0:06:41.440 --> 0:06:45.200 riot but not as serious an insurrection, or that President 0:06:45.279 --> 0:06:49.000 Trump didn't engage in the insurrection, that all he did 0:06:49.120 --> 0:06:52.200 was give speeches by make statements, but he didn't actually 0:06:52.200 --> 0:06:56.120 engage in the insurrection. So she basically said, you know, 0:06:56.279 --> 0:06:57.960 in some sense, if you look at the text of 0:06:58.000 --> 0:07:02.479 the amendment, it really requires thinks that there be an insurrection, 0:07:03.040 --> 0:07:05.160 that the person had to be engaged in it, and 0:07:05.160 --> 0:07:08.120 that it applied to the presidency. And so she has 0:07:08.160 --> 0:07:11.280 made rulings that it was an insurrection and that he 0:07:11.360 --> 0:07:14.080 did engage in it, but that the Fourteenth Amendment doesn't 0:07:14.080 --> 0:07:18.000 apply to him. So conceivably a higher court, an appeals court, 0:07:18.040 --> 0:07:20.360 or the Colorado Supreme Court or the US Supreme Court 0:07:20.760 --> 0:07:23.720 could conclude that the presidency is covered, in which case 0:07:23.960 --> 0:07:26.120 they'd have her findings on the other two issues. 0:07:26.520 --> 0:07:30.080 All the cases, you know, trying to get him off 0:07:30.120 --> 0:07:34.720 the ballot via the fourteenth Amendment, have they all failed? 0:07:35.560 --> 0:07:37.840 They're all at the early stages that maybe it's more 0:07:37.840 --> 0:07:41.040 accurate to say none has succeeded. Okay, but they're all 0:07:41.040 --> 0:07:44.280 at fairly early stages. I mean, the elections coming up soon, 0:07:44.320 --> 0:07:46.120 and right now the only real question is is being 0:07:46.120 --> 0:07:48.480 on the primary ballot. And some people have argued, well, 0:07:48.480 --> 0:07:52.080 the primary is premature. It's really on about the general election. 0:07:52.480 --> 0:07:55.040 But yeah, there are there are challenges percolating in a 0:07:55.120 --> 0:07:59.320 number of states. Certainly, nothing has succeeded yet, but I 0:07:59.360 --> 0:08:02.920 don't think there's has been a definitive ruling by the 0:08:03.000 --> 0:08:05.600 highest court of any state yet either. 0:08:06.800 --> 0:08:11.520 And does this seem like something the Supreme Court should 0:08:11.520 --> 0:08:12.000 take up. 0:08:12.920 --> 0:08:16.559 It's obviously an incredibly important question at the moment, given 0:08:16.600 --> 0:08:19.480 the lack of any law on this. You know, some 0:08:19.640 --> 0:08:22.440 great usually only comes in after there's been a you know, 0:08:22.480 --> 0:08:24.680 a final lower court judgment, and especially if there's been 0:08:24.680 --> 0:08:28.960 some disagreement, this is something that they might want to settle. 0:08:29.200 --> 0:08:32.080 I mean, I think the real anxiety that many people 0:08:32.120 --> 0:08:36.840 have is what happens when let's say Trump wins, but 0:08:37.200 --> 0:08:40.599 members of Congress don't think that they should certify his 0:08:40.640 --> 0:08:43.360 election because there's some members of Congress think that he 0:08:43.480 --> 0:08:46.880 violated the fourteenth Amendment. And what happens if this becomes 0:08:46.880 --> 0:08:49.040 an issue. January sixth to twenty twenty five. 0:08:49.840 --> 0:08:52.120 Coming up next on the Bloomberg Lawn Show, I'll continue 0:08:52.120 --> 0:08:56.440 this conversation with Columbia Law School professor Richard Brofault, and 0:08:56.480 --> 0:08:59.840 we'll talk about the Eighth Circuit Startling decision that would 0:08:59.880 --> 0:09:02.600 be a death blow to the Voting Rights Act. I'm 0:09:02.679 --> 0:09:05.720 June Grosso and you're listening to Bloomberg. One of the 0:09:05.720 --> 0:09:09.240 most important pieces of civil rights legislation in our history, 0:09:09.760 --> 0:09:12.840 the Voting Rights Act, was signed into law in August 0:09:12.880 --> 0:09:16.160 of nineteen sixty five by President Lyndon Johnson. 0:09:16.679 --> 0:09:22.600 Today is a triumph for freedom, as huge as any 0:09:22.720 --> 0:09:26.319 victory that's ever been won on any battle field. 0:09:26.800 --> 0:09:29.920 But the Supreme Court gotted a core part of that 0:09:30.080 --> 0:09:34.040 landmark law in twenty thirteen and now are ruling by 0:09:34.040 --> 0:09:37.880 the Eighth Circuit Court of Appeals threatens to deal a 0:09:38.000 --> 0:09:41.040 death blow to the Act. I've been talking to Columbia 0:09:41.120 --> 0:09:44.480 Law School professor Richard breflt Rich. Would you say the 0:09:44.559 --> 0:09:47.360 Voting Rights Act is the most important piece of federal 0:09:47.440 --> 0:09:50.560 legislation protecting voting rights today? 0:09:50.960 --> 0:09:54.040 Oh? Yes, a Voting Rights Act of nineteen sixty five, 0:09:54.120 --> 0:09:57.240 as it meant in nineteen eighty two is the number 0:09:57.240 --> 0:09:59.560 one federal statute protecting voting rights. 0:10:00.440 --> 0:10:03.680 And tell us what happened in twenty thirteen and what's 0:10:03.800 --> 0:10:06.240 left of the Act before we get to what's happened 0:10:06.240 --> 0:10:06.960 to it recently. 0:10:07.600 --> 0:10:10.840 So the Voting Rights Act of sixty five has significally 0:10:10.880 --> 0:10:14.120 mind in eighty two had many preditions, but two of 0:10:14.160 --> 0:10:18.480 them really stood out. One was what's called Section five, 0:10:18.840 --> 0:10:22.480 which had this concept of preclearance, and it basically said 0:10:22.800 --> 0:10:26.959 that for certain problem jurisdictions of jurisdictions which have a 0:10:27.040 --> 0:10:30.760 serious track record of violating voting rights, as proven by 0:10:30.760 --> 0:10:34.840 certain tests in the statute, when they change their voting laws, 0:10:35.200 --> 0:10:38.040 that has to be pre approved, pre cleared, as the 0:10:38.120 --> 0:10:41.400 language the statue uses, either by the Department of Justice 0:10:41.720 --> 0:10:44.679 or by a federal court before they it comes into effect, 0:10:44.920 --> 0:10:47.400 and it kind of reverses the presumption. It says for 0:10:47.480 --> 0:10:52.160 those problem jurisdictions, they have to prove that their new 0:10:52.360 --> 0:10:55.480 law or their new change in voting practice or procedure 0:10:55.880 --> 0:10:59.679 does not burden minority voting rights. So the burden is 0:10:59.679 --> 0:11:02.360 actually on the state of the local government to show 0:11:02.400 --> 0:11:06.080 that they're not clicting any harm. In twenty thirteen, the 0:11:06.120 --> 0:11:11.240 Supreme Court struck down the part of the statute that 0:11:11.360 --> 0:11:15.600 provided the definition of the jurisdictions that were subject to 0:11:15.640 --> 0:11:19.880 this special treatment. They were called cover jurisdictions, and the 0:11:19.960 --> 0:11:24.439 Court said that Congress basically had failed to update the 0:11:24.480 --> 0:11:28.400 formula that decides what a cover jurisdiction is. It was 0:11:28.480 --> 0:11:31.760 last updated in the nineteen seventies, and the Court said 0:11:31.840 --> 0:11:35.000 it simply cannot be right that that's the right formula 0:11:35.080 --> 0:11:38.280 now in a statute which the substance of the statute 0:11:38.679 --> 0:11:41.160 was as most recently updated in two thousand and six. 0:11:41.559 --> 0:11:44.000 So what the Court said in twenty thirteen is that provision, 0:11:44.320 --> 0:11:48.240 that preclearance provision, it is technically still on the books, 0:11:48.760 --> 0:11:51.880 but it has nothing to operate on because the provision 0:11:51.920 --> 0:11:54.480 that it works with which is the definition of the 0:11:54.480 --> 0:11:58.560 cover jurisdictions is invalid. So with that decision in twenty thirteen, 0:11:58.600 --> 0:12:02.200 the Supreme Court eliminated clearance to Clarence is technically on 0:12:02.240 --> 0:12:04.760 the books, but there's nothing for it to do. The 0:12:04.800 --> 0:12:07.400 other major provision of the Act is called Section two, 0:12:07.840 --> 0:12:10.880 and that's the one that basically is used to challenge 0:12:11.120 --> 0:12:15.800 voting rules around the country which are either intentionally discriminatory 0:12:16.000 --> 0:12:19.920 or have a discriminatory impact. And really for the parts 0:12:19.960 --> 0:12:22.920 of the country that were never under Section five, section 0:12:22.960 --> 0:12:25.840 two is where the action was, and since twenty thirteen 0:12:25.840 --> 0:12:28.319 now is for all of the country. Section two is 0:12:28.360 --> 0:12:31.240 where the action is. Now. In Section two, the burden 0:12:31.520 --> 0:12:34.800 is on a plaintiff to show that a state or 0:12:34.840 --> 0:12:38.240 local law is discriminatory, either in intent or in effect 0:12:38.800 --> 0:12:42.520 against We're protected by the Act, which are primarily based 0:12:42.559 --> 0:12:46.160 on race or language minority status. But nonetheless Section two 0:12:46.280 --> 0:12:49.920 has been particularly after the twenty thirteen decision that's known 0:12:49.960 --> 0:12:54.920 as Shelby County. Section two is clearly the major, by far, 0:12:55.000 --> 0:12:59.079 the major provision of the Act for enforcing voting rights. 0:13:00.080 --> 0:13:02.800 Now, I would say, out of the blue, a two 0:13:02.800 --> 0:13:05.280 to one ruling of the Eighth Circuit by a Trump 0:13:05.280 --> 0:13:08.839 appointee and a George W. Bush appointe with another Bush 0:13:08.880 --> 0:13:12.760 appoint in descent says that only the federal government can 0:13:12.800 --> 0:13:17.000 bring suits to vindicate voting rights under Section two. 0:13:17.400 --> 0:13:18.960 Right where did this come from? 0:13:19.440 --> 0:13:23.360 So their argument is that Section two, which makes all 0:13:23.400 --> 0:13:29.040 sorts of voting practices and procedures illegal, doesn't explicitly say 0:13:29.679 --> 0:13:34.040 that people who are injured by these practices and procedures 0:13:34.320 --> 0:13:36.160 have a right to bring a lawsuit what's known as 0:13:36.160 --> 0:13:39.920 a private right of action. The statute prohibits that basically 0:13:39.920 --> 0:13:43.559 declares that various kinds of voting practices and procedures which 0:13:43.600 --> 0:13:49.000 are discriminatory are illegal, but it doesn't explicitly literally say 0:13:49.320 --> 0:13:53.160 that people who are injured by that can bring a lawsuit. Now, 0:13:53.720 --> 0:13:56.920 since the time of the enactment of this statute, especially 0:13:57.000 --> 0:14:00.000 since it was beefed up. The statute was actually significantly 0:14:00.080 --> 0:14:03.760 beaced up by Congress in reaction to a Supreme Court 0:14:03.800 --> 0:14:07.400 decision in nineteen eighty two, this statue has been used 0:14:07.400 --> 0:14:10.880 for private claims. I don't know it's hundreds of times, 0:14:11.120 --> 0:14:14.400 which have been adjudicated by courts, including by the Supreme 0:14:14.440 --> 0:14:17.760 Court as recently as earlier this year, the Allen b. 0:14:17.880 --> 0:14:21.200 Milligan decision. So it has been used many, many, many, 0:14:21.240 --> 0:14:25.680 many times. But according to the Eighth Circuit majority, the 0:14:25.720 --> 0:14:29.480 Supreme Court has never literally said that there's a private 0:14:29.560 --> 0:14:32.960 right of action. They've just assumed it. And in that 0:14:33.080 --> 0:14:36.240 Allen case, Justice Thomas in his descent also raised this 0:14:36.400 --> 0:14:38.760 as a question about whether or not there really is 0:14:38.800 --> 0:14:42.440 a private right of action. So I think he in 0:14:42.480 --> 0:14:44.560 that case in some earlier cases, may have planted the 0:14:44.640 --> 0:14:47.520 seeds of doubt. But as I say, until now, I 0:14:47.520 --> 0:14:49.840 think there have been hundreds of cases in the district 0:14:49.880 --> 0:14:52.560 courts and the courts of appeals which have assumed that 0:14:52.600 --> 0:14:55.880 there's a private right of action, and even at least 0:14:55.880 --> 0:14:58.320 a number of cases, and it's probably, I'm not sure 0:14:58.320 --> 0:15:00.880 if it's single digits or double digits of cases in 0:15:00.920 --> 0:15:04.040 the Supreme Court which have assumed a private right of action. 0:15:04.720 --> 0:15:08.680 And this is the first case that has literally said, no, 0:15:09.000 --> 0:15:11.520 we don't think it's there. And the fact that there 0:15:11.560 --> 0:15:16.000 have been these many, many, many cases assuming that it's there, 0:15:16.640 --> 0:15:20.400 we don't care about those because nobody ever literally worked 0:15:20.400 --> 0:15:23.320 it through and held that there's a private right of action. 0:15:24.360 --> 0:15:28.560 And Justice Gorsich has also referred to whether private plaintiffs 0:15:28.600 --> 0:15:32.720 could sue under section two as quote an open question. 0:15:33.240 --> 0:15:36.840 Wendy Wiser of the Brendan Center for Justice has called 0:15:36.920 --> 0:15:40.840 these comments by the two justices bats signals that they're 0:15:40.880 --> 0:15:45.120 open to considering novel theories to undermine voting rights. And 0:15:45.160 --> 0:15:48.480 maybe the lower court judge, a Trump appointee, who came 0:15:48.560 --> 0:15:51.720 up with this, got the signal. Now, are these judges 0:15:51.760 --> 0:15:56.520 claiming that they're following precedent because this wasn't specifically addressed, 0:15:56.800 --> 0:15:59.600 even though you know there's case after case after case 0:15:59.640 --> 0:16:02.160 after case where private groups sue. 0:16:02.280 --> 0:16:04.840 Right, I think I would rephrase that to say they 0:16:04.880 --> 0:16:08.160 claim that they're following the text of the statute, the 0:16:08.200 --> 0:16:11.440 text of the statute and nothing more, and that they're 0:16:11.480 --> 0:16:16.440 not bound by any inconsistent precedent because there's no precedent 0:16:16.480 --> 0:16:19.920 that literally says the statute does create a private right 0:16:19.960 --> 0:16:22.280 of action. So I think that's how they would put it. 0:16:22.560 --> 0:16:25.560 This is consistent with kind of the dominant approach to 0:16:25.680 --> 0:16:29.120 statue interpretation in the current Supreme Court in federal courts, 0:16:29.120 --> 0:16:32.080 which is what's called textualism. We're just going to read 0:16:32.120 --> 0:16:36.640 the statute and see what's there and they don't see 0:16:37.280 --> 0:16:41.120 this literal language there as opposed to seeing that the 0:16:41.160 --> 0:16:44.280 structure of the statute. It's the purpose of the statue 0:16:44.320 --> 0:16:47.360 was designed to enable people to protect their voiding rights. 0:16:47.960 --> 0:16:50.680 Their view, there is not a specific little bit of 0:16:50.840 --> 0:16:52.600 text that says it. 0:16:52.600 --> 0:16:56.360 It seems like a very very narrow argument that ignores 0:16:56.440 --> 0:16:57.520 everything going around. 0:16:58.000 --> 0:17:00.880 Yeah, it's a very technical or argument, but it is 0:17:00.960 --> 0:17:04.280 an argument that I'd say resonates with some of the 0:17:04.400 --> 0:17:07.280 arguments that have that have really persuaded the Streme Court 0:17:07.320 --> 0:17:10.760 in other areas not voting rights. This idea of the 0:17:10.800 --> 0:17:12.600 private right of actions that I mean this has come 0:17:12.680 --> 0:17:16.120 up in other settings where Congress passes a law that 0:17:16.480 --> 0:17:21.720 prohibits certain activity or provides for certain benefits, but doesn't 0:17:21.760 --> 0:17:24.640 literally give people the right to sue if those are denied. 0:17:25.320 --> 0:17:28.600 Maybe theerception is that the Attorney general will sue or 0:17:29.080 --> 0:17:31.840 that rel agency will sue. And for a long time, 0:17:31.960 --> 0:17:34.960 the Supreme Court was willing to imply private rights of 0:17:35.000 --> 0:17:39.280 actions as necessary to vindicate the rights provide the benefits 0:17:39.280 --> 0:17:42.359 that Congress authorized. In more recent years, the Supreme Court 0:17:42.400 --> 0:17:45.280 has cut back on that and has been less inclined 0:17:45.320 --> 0:17:48.800 to find a private right of action in a statute 0:17:48.800 --> 0:17:50.840 that doesn't literally say that. 0:17:51.520 --> 0:17:55.399 Now, if this decision is affirmed, it would leave it 0:17:55.440 --> 0:18:00.199 to the Justice Department or state agees to bring these cases. 0:18:00.359 --> 0:18:03.720 And in Republican states, it doesn't seem likely that an 0:18:03.800 --> 0:18:07.320 age would bring an action to enforce the Voting Rights Act. 0:18:07.960 --> 0:18:12.120 So does the Justice Department have enough people and resources 0:18:12.160 --> 0:18:13.879 to bring these kinds of actions? 0:18:13.960 --> 0:18:15.919 Right? I mean, it's not clear that the Just Department 0:18:15.960 --> 0:18:18.320 would have enough staff to bring it. And then there 0:18:18.400 --> 0:18:21.560 might be justice departments that are not interested, that their 0:18:21.600 --> 0:18:24.719 philosophy is not inclined to bring these cases. I can 0:18:24.800 --> 0:18:27.960 imagine that happening too. So, yeah, this is a real 0:18:28.760 --> 0:18:33.679 This is a real body blow to any effectiveness of 0:18:33.720 --> 0:18:37.280 the Voting Rights Act. If people can't sue if they 0:18:37.320 --> 0:18:41.040 believe that there's a violation, the opportunities to enforce these 0:18:41.119 --> 0:18:43.560 rights will be drastically diminished. 0:18:44.320 --> 0:18:46.440 What's the next step for the plaintiffs here? 0:18:47.040 --> 0:18:50.160 It's certainly likely that the plaintiffs in this case will 0:18:50.480 --> 0:18:53.119 ask for what's called an on bank, which is to 0:18:53.160 --> 0:18:55.479 say this was a panel of the Eighth Circuit. You know, 0:18:55.520 --> 0:18:59.040 the course of appeals generally have a dozen or fifteen 0:18:59.119 --> 0:19:01.480 or more judges, but they sit in groups of three, 0:19:01.920 --> 0:19:04.160 and so this was a group of three judges from 0:19:04.160 --> 0:19:06.719 the Eighth Circuit to split two to one on this. 0:19:06.720 --> 0:19:09.879 This is a kind of issue that certainly is likely 0:19:10.320 --> 0:19:12.760 or certainly is a great candidate to go to an 0:19:12.760 --> 0:19:15.760 on bank decision where the entire Eight Circuit sits and decides. 0:19:16.160 --> 0:19:17.440 This is a certainly sort of issue that go to 0:19:17.480 --> 0:19:19.960 the Supreme Court ultimately, but I think before it even 0:19:20.000 --> 0:19:22.480 gets to the Supreme Court, there's a good chance that 0:19:22.520 --> 0:19:24.960 it'll be subject to an on bank reviewed by the 0:19:25.080 --> 0:19:25.960 entire Rate Circuit. 0:19:26.240 --> 0:19:29.199 And the Eighth Circuit is a very conservative circuit, with 0:19:29.400 --> 0:19:35.280 sixteen of its seventeen judges being Republican appointees. Thanks so much, 0:19:35.359 --> 0:19:39.600 rich That's Professor Richard Rafault of Columbia Law School coming 0:19:39.680 --> 0:19:44.119 up next. Federal public defenders are combining their forces to 0:19:44.200 --> 0:19:47.119 make arguments at the Supreme Court. I'm Juan Grass when 0:19:47.160 --> 0:19:49.520 you're listening to Bloomberg, mis Radler. 0:19:51.560 --> 0:19:54.360 Mister Chief Justice, and may please the Court. The nine 0:19:54.400 --> 0:19:57.879 to twenty two g offense is what triggers Acus penalties. 0:19:58.200 --> 0:20:02.480 The government therefore agrees that courts must apply Acus criteria 0:20:02.560 --> 0:20:05.000 in effect at the time of the nine to twenty 0:20:05.000 --> 0:20:07.360 two g offense not the prior conviction. 0:20:07.960 --> 0:20:12.160 Assistant Federal public defender Andrew Adler made his third trip 0:20:12.240 --> 0:20:15.199 to the U. S. Supreme Court lectern on Monday to 0:20:15.359 --> 0:20:19.120 argue that his client, Eugene Jackson, should not be subject 0:20:19.200 --> 0:20:22.880 to a fifteen year mandatory minimum because of his previous 0:20:22.960 --> 0:20:26.760 state cocaine related conviction. Adler is just one of the 0:20:26.760 --> 0:20:30.240 federal public defenders who have argued more than once before 0:20:30.280 --> 0:20:34.040 the justices. That's because with the Supreme Court hearing fewer 0:20:34.080 --> 0:20:37.879 and fewer cases each term, the criminal defense attorneys, like 0:20:37.960 --> 0:20:41.560 most first time Supreme Court advocates, face a lot of 0:20:41.600 --> 0:20:44.800 pressure from elite law firms to turn over their cases 0:20:44.840 --> 0:20:48.720 to advocates who are more experienced before the court. Joining 0:20:48.760 --> 0:20:52.680 me is Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson, 0:20:52.920 --> 0:20:56.560 who's written about this. Tell us about the pressure that 0:20:56.880 --> 0:21:01.359 federal public defenders and other first time advocates have to 0:21:01.480 --> 0:21:06.720 turn their Supreme Court cases over to experienced advocates. 0:21:07.440 --> 0:21:10.560 Well, it's not a very good kept secret that whenever 0:21:10.640 --> 0:21:14.160 a case is granted by the Justices, the advocate, if 0:21:14.200 --> 0:21:17.760 they're not a sume Court veteran will face intense pressure. 0:21:18.240 --> 0:21:21.639 You know, they'll get calls, emails from large law firms 0:21:21.640 --> 0:21:25.160 from gootis veterans offering to take their case for free 0:21:25.520 --> 0:21:28.760 to help them out. But the help often means to 0:21:28.880 --> 0:21:31.679 argue the case. And so it's one way that you know, 0:21:31.760 --> 0:21:35.240 as the justices are granting and fewer cases, it's one 0:21:35.280 --> 0:21:38.399 way for advocates to you know, show their faces and 0:21:38.480 --> 0:21:43.280 for the justices frequently, and it's one that sometimes gets 0:21:43.320 --> 0:21:45.000 a lot of people to turn over their cases. But 0:21:45.040 --> 0:21:48.239 the federal defenders have tried to keep their cases when 0:21:48.320 --> 0:21:50.880 it makes sense within the offices themselves. 0:21:51.160 --> 0:21:53.720 There's even been criticism from some justices. 0:21:53.800 --> 0:21:57.280 You wrote about Justice Sonya Sotomayor in twenty fourteen said 0:21:57.320 --> 0:22:00.480 it was malpractice for any lawyer who thinks, this is 0:22:00.520 --> 0:22:03.399 my one shot before the Supreme Court and I have 0:22:03.480 --> 0:22:06.840 to take it. Have other justices commented as well. 0:22:08.119 --> 0:22:11.480 Yes, there was similar criticism from Justice Kagan around the 0:22:11.480 --> 0:22:14.440 same time, where she talked about, you know, the one 0:22:14.440 --> 0:22:17.639 group consistently who is getting or advocacy in front of 0:22:17.680 --> 0:22:21.200 the justices were criminal defendants, and that of course includes 0:22:21.320 --> 0:22:24.560 federal public defenders. She talked about the same thing that 0:22:24.760 --> 0:22:27.000 people wanting to have their one shot in front of 0:22:27.040 --> 0:22:29.560 the Supreme Court. And we've seen a lot of first 0:22:29.600 --> 0:22:32.480 time advocates, a lot of advocates of these criminal cases 0:22:32.640 --> 0:22:35.119 who do not do, you know, the best job for 0:22:35.200 --> 0:22:37.720 their clients. But that's not always the case. And again, 0:22:38.040 --> 0:22:41.120 you know, that's something that the federal defenders are trying 0:22:41.160 --> 0:22:43.480 to make sure it doesn't happen in their cases. 0:22:44.320 --> 0:22:48.520 And the Supreme Court bar is an elite group? Is 0:22:48.560 --> 0:22:50.080 it an elitist group too? 0:22:52.240 --> 0:22:54.359 Well, that's what you know, one of the federal defenders 0:22:54.400 --> 0:22:56.720 told me, is that there is a bit of elitism 0:22:57.080 --> 0:23:00.600 that goes on this idea that you know, only people 0:23:00.640 --> 0:23:03.080 can do this. I mean, you know, these federal defenders, 0:23:03.480 --> 0:23:08.280