WEBVTT - False Concerns About Mail-In Voting 0:00:00.480 --> 0:00:05.720 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.600 --> 0:00:11.160 With unprecedented mail in voting expected because of the coronavirus pandemic, 0:00:11.520 --> 0:00:15.680 many state officials, concerned about slower than usual mail delivery 0:00:15.720 --> 0:00:19.360 are extending mail in ballot deadlines and making backup plans 0:00:19.400 --> 0:00:22.600 to smooth early voting in the weeks before the November election, 0:00:22.880 --> 0:00:25.920 but experts warned that tens of thousands of ballots might 0:00:25.960 --> 0:00:28.840 still be thrown out. Joining me is election law expert 0:00:28.920 --> 0:00:32.040 Richard Brofald, a professor at Columbia Law School, which I 0:00:32.080 --> 0:00:35.560 want to start by getting your take on the legitimacy 0:00:35.640 --> 0:00:41.000 of President Trump's claims that voting absentee by mail is okay, 0:00:41.040 --> 0:00:43.760 but voting by mail is not and is going to 0:00:43.840 --> 0:00:46.960 lead to huge fraud. The President is trying to make 0:00:47.000 --> 0:00:50.720 a distinction between two different things which are not different 0:00:50.760 --> 0:00:54.360 from each other, even the terminology is blurred. The President 0:00:54.920 --> 0:00:57.720 has almost always voted, as has most of his cabinet 0:00:57.720 --> 0:01:00.680 and his family, and I think he's thing about and 0:01:00.680 --> 0:01:02.800 it's the same kind of absentee ballot, But in his 0:01:02.880 --> 0:01:05.759 case it was you had a justification for voting absentee 0:01:05.800 --> 0:01:08.039 and that you were going to be out of a jurisdiction, 0:01:08.400 --> 0:01:10.680 maybe on business, or you were sick, you couldn't get 0:01:10.720 --> 0:01:12.720 to the volt. We've had that kind of mechanism in 0:01:12.760 --> 0:01:14.800 place for a century. I mean, it really goes back 0:01:14.840 --> 0:01:17.920 to the Second World War. In modern times, many states 0:01:17.959 --> 0:01:20.080 have moved to make it very easy for people to 0:01:20.080 --> 0:01:23.280 get absentee ballot so called no excuse absentee voting, which 0:01:23.319 --> 0:01:25.959 is now more than half the state and the handful 0:01:26.000 --> 0:01:27.959 of states I think we're now up to five have 0:01:28.040 --> 0:01:30.480 said we're just gonna nail use the ballot though you 0:01:30.520 --> 0:01:32.479 don't even have to go through the trouble of asking 0:01:32.480 --> 0:01:35.119 for absentee votes. We're gonna do the entire election by 0:01:35.160 --> 0:01:38.160 mail and have a very very limited exception for people 0:01:38.160 --> 0:01:40.120 who are unable to use the mount so that a 0:01:40.120 --> 0:01:42.360 handful of states at must in the West, have been 0:01:42.440 --> 0:01:45.000 all mail in voting. They don't even use the term absentee, 0:01:45.200 --> 0:01:47.720 but it's the same kind of ballot and the same 0:01:47.760 --> 0:01:51.559 mechanism as would be the case in old style absentee voting. 0:01:51.800 --> 0:01:54.800 A voter at home fills out a ballot, twust it 0:01:54.840 --> 0:01:57.480 in an envelope, seals the envelope usually then put another 0:01:57.600 --> 0:02:00.800 envelope over it signs their name. Some states have other 0:02:00.840 --> 0:02:04.760 requirements by witnessing and mail him in. In some places 0:02:04.840 --> 0:02:07.240 you can bring it in. In some places they have 0:02:07.320 --> 0:02:09.440 so called drop boxes where you can drop it off 0:02:09.440 --> 0:02:11.600 if you don't trust the postal service. But it's that's 0:02:11.639 --> 0:02:14.079 literally the same ballot, whether or not it is one 0:02:14.120 --> 0:02:16.520 that you requested because you were going to be out 0:02:16.560 --> 0:02:18.760 of town that day, or it's one that the state 0:02:18.800 --> 0:02:20.799 has mail to you. So this is a long way 0:02:20.840 --> 0:02:23.040 of saying that this president is drawing a distinction where 0:02:23.040 --> 0:02:26.560 there isn't one. President Trump has also been attacking the 0:02:26.600 --> 0:02:30.240 post Office for quite some time, and he's now put 0:02:30.280 --> 0:02:35.079 a new postmaster General in who has barred over time 0:02:35.360 --> 0:02:39.200 and put in other changes that some of the postal 0:02:39.200 --> 0:02:42.919 workers are complaining about. What can be done to make 0:02:43.000 --> 0:02:46.120 sure that the post Office can deliver the mail on 0:02:46.280 --> 0:02:50.040 time come election day. That's a very tough question. It 0:02:50.160 --> 0:02:52.320 is one of the things the Democrats have been fighting 0:02:52.320 --> 0:02:55.880 about in Washington. In their bill, their COVID release bill, 0:02:55.880 --> 0:02:58.920 which they the path House in May, they put an 0:02:58.919 --> 0:03:02.000 additional funding for the service to help the Postal Service 0:03:02.080 --> 0:03:04.480 handle the additional ballots. There are going to be far 0:03:04.560 --> 0:03:07.239 more mailed in ballots this time around than in any 0:03:07.280 --> 0:03:12.080 other election. In maybe of the public voted by mail, 0:03:12.520 --> 0:03:14.760 that's likely to be much higher this time. So they 0:03:14.800 --> 0:03:17.359 specifically put in money to help the postal service and 0:03:17.560 --> 0:03:20.120 loads the search. So far, one of the reasons I 0:03:20.160 --> 0:03:23.160 think the Republicans have been resisting the Democratic bill is 0:03:23.200 --> 0:03:24.760 they don't want to put in this extra money for 0:03:24.800 --> 0:03:26.800 the postal service. So one way to deal with this 0:03:26.800 --> 0:03:29.440 would be to give the post Office extra money. Another 0:03:29.480 --> 0:03:33.560 redly some out pressure the Postmaster General to change these 0:03:33.639 --> 0:03:35.320 new work rules that he's put in place that you've 0:03:35.360 --> 0:03:38.640 just mentioned, barring overtime traditional rule the post Office as 0:03:38.680 --> 0:03:40.280 they try to get all the mails that they have 0:03:40.360 --> 0:03:43.880 that they delivered. He's basically saying, if there's mail that's undelivered, 0:03:43.880 --> 0:03:46.360 your mail carry's and delivered at the end of the 0:03:46.400 --> 0:03:50.720 official work day, come back, don't deliver it, wait till tomorrow. Well, 0:03:50.720 --> 0:03:53.720 this could be a real problem, um. And really, when 0:03:53.760 --> 0:03:56.040 we're talking about mail and ballots, we're really talking about 0:03:56.080 --> 0:03:58.960 two steps. Mailing the ballot to the voter so the 0:03:59.040 --> 0:04:01.280 voter can fill it out, and then the voter mailing 0:04:01.320 --> 0:04:03.960 it back to the local Board of Elections, so it 0:04:04.040 --> 0:04:05.960 really is going to be going through the mail twice 0:04:06.440 --> 0:04:09.760 and so any problems with delay gets doubled. So what 0:04:09.840 --> 0:04:11.480 else can be done? While one again would be to 0:04:11.520 --> 0:04:14.760 get them to change those rules, another possibility, of course, 0:04:15.200 --> 0:04:18.359 is to educate people to voting early, you know, asking 0:04:18.440 --> 0:04:20.760 for their ballots earlier, or getting their ballots and voting 0:04:20.800 --> 0:04:24.080 them early so that they give the post office more time. 0:04:24.560 --> 0:04:28.479 Another possibility is in some jurisdictions, the local election board 0:04:28.480 --> 0:04:31.359 has set up a quote drop boxes sort of secure 0:04:31.440 --> 0:04:35.599 boxes where the voter can drop the ballot off. Voter 0:04:35.640 --> 0:04:38.080 doesn't have to go into the polling place, but the 0:04:38.080 --> 0:04:40.240 ballot could be dropped off, you know, maybe in a 0:04:40.279 --> 0:04:43.240 government building, maybe at a shopping mall, maybe to school. Uh, 0:04:43.279 --> 0:04:46.200 and so the ballot could be returned without using the 0:04:46.200 --> 0:04:48.880 postal service. Finally, and this has been one of the 0:04:48.960 --> 0:04:51.720 more contested issues, is the question of when does the 0:04:51.760 --> 0:04:55.680 ballot have to be returned. Some jurisdictions require that the 0:04:55.760 --> 0:04:59.840 ballot d in the local Board of Elections by end 0:04:59.839 --> 0:05:03.160 of election day, but other jurisdictions whom I mean really 0:05:03.160 --> 0:05:06.400 means states say it's okay for the ballot to come 0:05:06.440 --> 0:05:09.520 in after election day, so long as it's postmarked by 0:05:09.560 --> 0:05:12.120 election day. So as long as you get the ballot 0:05:12.240 --> 0:05:14.520 into the system by election day, the fact that it 0:05:14.600 --> 0:05:17.160 might take the post office five days to bring it 0:05:17.160 --> 0:05:19.919 in instead of two, that shouldn't count against you. And 0:05:19.960 --> 0:05:22.279 a number of states are switching to that or being 0:05:22.320 --> 0:05:25.160 asked to switch to that now. And that last thing, 0:05:25.160 --> 0:05:26.960 and I understand see that at least one state is 0:05:27.000 --> 0:05:30.520 talking about doing this is putting first class post on 0:05:30.560 --> 0:05:33.280 the ballot. Right now, it's being treated as both mail. 0:05:33.800 --> 0:05:36.480 But if states want to pay more money on it's 0:05:36.480 --> 0:05:38.400 a shame that they have so many other expenses, they'd 0:05:38.400 --> 0:05:40.599 be forced to do this. They could use first class 0:05:40.640 --> 0:05:44.040 stamps and that might speed the return of the ballots 0:05:44.040 --> 0:05:48.400 when they get back. So in missing a deadline was 0:05:48.440 --> 0:05:52.159 the second biggest reason a mail in ballot was rejected. 0:05:52.520 --> 0:05:56.719 Are any states now moving to try to extend the 0:05:56.839 --> 0:06:00.520 time that a ballot can be received, and can they 0:06:00.520 --> 0:06:04.000 be done by executive order? That's a good question. I 0:06:04.000 --> 0:06:06.800 believe some states have already done that, um and I 0:06:06.800 --> 0:06:09.279 believe it could be done by executive order. Certainly a 0:06:09.400 --> 0:06:12.120 number of states did that, I think in the context 0:06:12.200 --> 0:06:14.640 of the primary election and I think it could be 0:06:14.640 --> 0:06:18.279 done by executive or or by regulation of the executive 0:06:18.320 --> 0:06:20.560 order usually come from governor, could be by regulation or 0:06:20.560 --> 0:06:24.159 administrative rule of the state Board of Election the chief 0:06:24.160 --> 0:06:27.840 elections officer. Again, whether that can be done UH through 0:06:27.880 --> 0:06:31.120 administration might depend on the law of the individual state. 0:06:31.640 --> 0:06:37.480 Have changes by the executive survived judicial challenges. I think 0:06:37.480 --> 0:06:41.799 where the courts have been more active is in situations where, 0:06:41.839 --> 0:06:44.720 like the Supreme Court has been resisting a lot of changes, 0:06:45.040 --> 0:06:48.680 is when a lower court order is the change UH. 0:06:48.680 --> 0:06:51.760 And there I think of the same Preme Court has 0:06:51.800 --> 0:06:56.480 on repeated occasions this year so far undone those changes 0:06:56.520 --> 0:06:58.520 designed to make it easier to get things on the 0:06:58.560 --> 0:07:02.480 ballot or the vote. But I think when the executive, 0:07:03.000 --> 0:07:05.080 whether it's the governor or the Secretary of the state, 0:07:05.080 --> 0:07:09.159 Secretary of State UM, has agreed to the change UM. 0:07:09.240 --> 0:07:12.880 I don't think there have been court interventions that have 0:07:13.080 --> 0:07:15.080 stopped that. There have been so many discus in so 0:07:15.120 --> 0:07:17.760 many cases and less really going back to about March 0:07:17.880 --> 0:07:21.240 March April during the primaries that I can't say out 0:07:21.240 --> 0:07:23.320 of court has never stopped that. But I think for 0:07:23.360 --> 0:07:26.880 the most part, if the state government is agreeable to 0:07:27.000 --> 0:07:29.920 doing this. The courts have not stepped in. I want 0:07:29.920 --> 0:07:33.320 to just go over some of the Trump challenges trump lawsuit, 0:07:33.760 --> 0:07:36.560 and you know, you mentioned ballot drop boxes and I 0:07:36.640 --> 0:07:39.760 thought that sounded like a great idea. But the Trump 0:07:39.880 --> 0:07:45.160 campaign is suing Pennsylvania over there drop boxes. How strong 0:07:45.240 --> 0:07:48.400 is their case? Um, I think there's a lot of 0:07:48.440 --> 0:07:52.480 their argument is basically, uh, that this is less secure. Now, 0:07:53.160 --> 0:07:57.280 my sense is that the question of balancing access and 0:07:57.320 --> 0:07:59.840 security is one we normally leave to the states and 0:08:00.000 --> 0:08:03.600 local governments. Uh, that's a fight about voter ID. Voter 0:08:03.640 --> 0:08:05.920 idea was supposed to be, you know, prevent against fraud. 0:08:05.960 --> 0:08:08.240 On the other hand, and makes um uh it is 0:08:08.400 --> 0:08:11.160 harder for people to vote U. The courts have generally 0:08:11.200 --> 0:08:13.800 left that ballots to be set by stay in the 0:08:13.840 --> 0:08:17.280 local administrators. So you might think that he would you 0:08:17.280 --> 0:08:19.280 would have the same rule with respect to the use 0:08:19.400 --> 0:08:23.400 of drop boxes. I could see being the jurisdictions being 0:08:23.440 --> 0:08:26.640 pushed to make sure to show that they made them secure. 0:08:27.080 --> 0:08:30.040 I think that's a legitimate concern, is whether or not 0:08:30.200 --> 0:08:34.120 all these boxes are tamper proof, whether I don't know 0:08:34.160 --> 0:08:37.720 there are cameras on them, etcetera. Some jurisdictions have moved 0:08:37.720 --> 0:08:40.200 towards having kind of bar codes on the ballots to 0:08:40.200 --> 0:08:44.800 make them traceable again anti fraud. But I think the 0:08:44.840 --> 0:08:47.800 idea that UM, I think they ought to have a 0:08:47.840 --> 0:08:53.360 hard time saying that states and local governments can't innovate 0:08:53.440 --> 0:08:57.320 new mechanisms that make it easier to vote, particularly in 0:08:57.360 --> 0:09:01.000 the pandemic context. I mean, there is a public health 0:09:01.120 --> 0:09:04.320 backdrop to all of this, which is that there is 0:09:04.360 --> 0:09:07.040 a there's likely to be I mean, we're probably still 0:09:07.040 --> 0:09:09.080 going to be in the middle of COVID in November, 0:09:09.440 --> 0:09:12.280 and there's there's a heightened public health concern. We have 0:09:12.400 --> 0:09:15.440 large numbers of people showing up in polling places. Trump's 0:09:15.480 --> 0:09:20.120 campaign is suing Nevada. Explain what that lawsuits about. Again, 0:09:20.160 --> 0:09:22.839 it's a claim that by making it easier for people 0:09:22.880 --> 0:09:25.920 to get absentee ballots by the state sending absentee ballots, 0:09:26.080 --> 0:09:29.080 I have a state liberalizing the deadline for submitting the 0:09:29.120 --> 0:09:34.960 absentee ballots, that that is somehow the violation of the 0:09:35.040 --> 0:09:38.560 rights to an election with integrity. One particular issue they've 0:09:38.640 --> 0:09:44.280 raised is again it's really pretty silly, UM, is that UM, 0:09:44.360 --> 0:09:48.800 if a ballot is received after election day, but counted. 0:09:49.160 --> 0:09:52.640 It violates the congressional law that sets the specific day 0:09:53.000 --> 0:09:57.240 this year, November three, as election day. UM. What ludicrous 0:09:57.240 --> 0:09:59.840 about that? Is? UM? What the what? The state pre 0:10:00.000 --> 0:10:02.320 a and says it's long it's postmarked election on election 0:10:02.400 --> 0:10:06.480 day UM or earlier. UM, doesn't matter when it's received. Well, 0:10:06.760 --> 0:10:09.199 submitting the ballot into the ballot, into the mailboxer in 0:10:09.240 --> 0:10:11.240 the post into the post office and getting a POSTMONE 0:10:11.400 --> 0:10:15.160 that's the equivalent of voting, UM voting in a polling place. 0:10:15.200 --> 0:10:18.400 So Congress says you have to vote by election day. Well, 0:10:18.400 --> 0:10:20.880 the votes have already been cast. This is a problem 0:10:20.880 --> 0:10:24.160 of receiving them and absentee ballots. You know, we've had 0:10:24.800 --> 0:10:28.920 ballasts come in from overseas, from from soldiers UH and 0:10:28.960 --> 0:10:31.160 the armed forces overseas. They come there as they can 0:10:31.200 --> 0:10:34.560 come in past election day, and they're still accounted. It's 0:10:34.640 --> 0:10:37.079 kind of a silly argument that says that if a 0:10:37.160 --> 0:10:41.240 ballot has been cast before election day but is received 0:10:41.360 --> 0:10:44.599 after election day, because that's the way the postal service works, 0:10:44.640 --> 0:10:49.200 it's somehow is inconsistent with their being one election day. Obviously, 0:10:49.240 --> 0:10:53.880 the Trump campaign is trying to curtail mail in voting 0:10:54.520 --> 0:10:57.920 or any kind of voting besides in person voting every 0:10:57.920 --> 0:11:02.920 way they can. Is there any proof that Democrats vote 0:11:02.960 --> 0:11:05.959 by mail more or will vote by mail more than 0:11:06.040 --> 0:11:11.480 Republicans historically until this all became partisan political in the 0:11:11.559 --> 0:11:14.679 current election climate, I think there was some evidence that 0:11:14.760 --> 0:11:18.079 Republicans voted by mail more than Democrats. It was something 0:11:18.240 --> 0:11:22.439 that older voters particularly liked, and rural voters from what 0:11:22.679 --> 0:11:25.080 was actually more difficult to get to the polling place. 0:11:25.320 --> 0:11:27.480 I think. I think overall that was not a big 0:11:27.520 --> 0:11:31.400 difference between Republicans and Democrats in terms of their use 0:11:32.000 --> 0:11:34.320 by mail. Platific extent there was, I think it was 0:11:34.320 --> 0:11:37.960 slightly more Republican. And there's also evidence that many voters 0:11:37.960 --> 0:11:41.880 of color preferred to vote in person because suspicions about 0:11:41.920 --> 0:11:44.520 the postal service. They having thought so hard to get 0:11:44.520 --> 0:11:48.040 the ballot, there's a certain degree of satisfaction actually physically 0:11:48.160 --> 0:11:50.480 voting at a polling place. So I think there is 0:11:50.559 --> 0:11:54.480 some evidence that voters of color, particularly African Americans, were 0:11:54.480 --> 0:11:57.080 somewhat skeptical. I mean, again, this is all the margins. 0:11:57.200 --> 0:11:59.200 I think for the most part there was not big differences, 0:11:59.400 --> 0:12:02.400 but to the extent they were, my sense was that 0:12:02.640 --> 0:12:05.839 by mail was probably more commonly used by Republicans and 0:12:05.920 --> 0:12:09.880 Democrats until this all became partisan comment. Let's talk a 0:12:09.880 --> 0:12:13.200 little bit about the Supreme Court, because you mentioned that 0:12:13.559 --> 0:12:17.520 until today the Supreme Court seemed to be undoing all 0:12:17.520 --> 0:12:20.320 the efforts to ease access to the ballot during the 0:12:20.360 --> 0:12:25.640 coronavirus pandemic. Just today, the Supreme Court declined to block 0:12:25.800 --> 0:12:29.600 Rhode Island from proceeding with plans to relax to witness 0:12:29.720 --> 0:12:34.440 or notary requirement for absentee ballots in upcoming elections, rejecting 0:12:34.440 --> 0:12:38.440 a Republican challenge. Tell us about that case. So I 0:12:38.480 --> 0:12:41.760 do point out the Supreme Court is now rendering about 0:12:41.800 --> 0:12:45.520 a half dozen decisions, uh, typically without all of them 0:12:45.520 --> 0:12:48.720 I think, without floral argument or or generally on the papers, 0:12:49.200 --> 0:12:55.120 UM dealing with decisions by lower federal court in one 0:12:55.160 --> 0:12:58.760 way or another. UM making it easier to get a 0:12:58.760 --> 0:13:02.000 petition on the ballot for a referendum, or easier to 0:13:02.080 --> 0:13:06.000 vote in light of of conditions created by the pandemic. 0:13:06.720 --> 0:13:12.240 For example, UM allow allowing the fear of COVID and 0:13:12.280 --> 0:13:15.280 possibly getting COVID accountans and illness for purposes of an 0:13:15.280 --> 0:13:18.720 excuse for an absentee vote, or with respect to petitions 0:13:18.760 --> 0:13:22.599 to get ballot propositions referenda on the ballot, reducing the 0:13:22.679 --> 0:13:25.680 number of signatures required. Typically in order to get a 0:13:25.760 --> 0:13:27.320 question on the ballot, you have you need a certain 0:13:27.360 --> 0:13:30.679 number of signatures. People collect them by going around shopping 0:13:30.679 --> 0:13:34.120 malls and downtowns, and and with with with all the 0:13:34.120 --> 0:13:37.040 shutdowns on the stay at home rules, it became almost 0:13:37.040 --> 0:13:39.960 impossible to collect those signatures. So in a number of 0:13:40.480 --> 0:13:44.320 lawsuits various federal judges around the country, and in different 0:13:44.320 --> 0:13:47.880 cases not always the number of them. Basically, UH said 0:13:47.920 --> 0:13:52.400 that under current circumstances, the law, which was normally a 0:13:52.520 --> 0:13:56.199 valid competitutional law, needs to be relaxed. They cut the 0:13:56.280 --> 0:13:58.559 number of signatures they send in a number of the 0:13:58.559 --> 0:14:01.480 amount of time to get something on the ballot. They 0:14:01.520 --> 0:14:05.320 loosen what counts to an excuse. UH, they might loosen 0:14:05.400 --> 0:14:09.360 the witnessing requirement of your signature for an absencee ballot center. 0:14:09.400 --> 0:14:12.520 They're in number of cases like this UM until today, 0:14:12.920 --> 0:14:18.160 the Supreme Court has consistently struck those down under something 0:14:18.520 --> 0:14:21.240 rules only own as the first cell principle, which is 0:14:21.320 --> 0:14:27.080 that court shouldn't be changing the rules that govern an election. UH. 0:14:27.200 --> 0:14:29.520 An effect on the eve of the election. In many 0:14:29.520 --> 0:14:34.960 of these cases involved primaries, the primary season, or approaching 0:14:35.000 --> 0:14:37.720 deadlines for getting petitions on the ballot. But the sense 0:14:37.840 --> 0:14:41.880 is that when courts changed the rules for an election, UM, 0:14:42.040 --> 0:14:45.360 it could cause confusion, It could be seen as having 0:14:45.600 --> 0:14:49.720 partisan consequence. UM. The court is not taken into account 0:14:49.800 --> 0:14:52.200 the idea that the rules have really been changed by 0:14:52.240 --> 0:14:55.160 the pandemic itself, and that what the courts they're trying 0:14:55.160 --> 0:14:58.160 to do is revised the rules in light of the 0:14:58.240 --> 0:15:02.400 change circumstances presented the pandemic. But the court I didn't 0:15:02.400 --> 0:15:05.320 get they've often been divided, UM, has not recognized that 0:15:05.760 --> 0:15:08.560 today's case was different. This case came out of Rhode Island. 0:15:08.560 --> 0:15:12.000 As you mentioned, UM, there was a consent decree in 0:15:12.000 --> 0:15:15.840 which the state agreed uh not to enforce the to 0:15:15.960 --> 0:15:19.680 witness requirement for somebody to be witnessing. Somebody witnessing and 0:15:19.760 --> 0:15:23.520 absentee voters signing the back of the envelope that's really 0:15:23.560 --> 0:15:28.080 them uh submitting the vote in part because if ar 0:15:28.120 --> 0:15:31.160 under locked out, it maybe hard to get witnesses. UM. Uh. 0:15:31.280 --> 0:15:33.840 This time, of course, that it was different because the 0:15:33.920 --> 0:15:37.160 state had agreed to this. This was a consent to Cree, 0:15:37.440 --> 0:15:39.400 a loss it brought against the state, but the state 0:15:39.520 --> 0:15:42.200 ultimately agreed with the change, so the state was not 0:15:42.400 --> 0:15:46.600 challenging the change. Only the Republican National Committee and the 0:15:46.640 --> 0:15:49.960 Court six three concluded that if the state was okay 0:15:50.040 --> 0:15:52.680 with this change, there was no reason for the court 0:15:52.720 --> 0:15:55.240 to step in. This is what you've seen this pattern. 0:15:55.320 --> 0:15:58.560 Does it tell us what will happen in cases coming 0:15:58.640 --> 0:16:02.920 up where state officials make changes, for example, to either 0:16:03.000 --> 0:16:06.520 the deadline for mail in ballots or the way they're 0:16:06.520 --> 0:16:10.000 handled court. It's always like reading the tea leaves. You 0:16:10.000 --> 0:16:13.680 can never but it is a hopeful sign that if 0:16:13.760 --> 0:16:18.280 the decision comes from authorized state decision makers and he 0:16:18.400 --> 0:16:21.920 is consistent with state rules and procedures for doing state business, 0:16:22.200 --> 0:16:24.360 that they would not step it and that they would 0:16:24.400 --> 0:16:28.080 accept the change. Thanks rich that's Richard Brifault of Columbia 0:16:28.160 --> 0:16:32.480 Law School. Judges on an ombank panel of the DC 0:16:32.640 --> 0:16:36.960 Federal Appeals Court grilled former National Security Advisor Michael Flynn's 0:16:37.040 --> 0:16:39.960 lawyer about his claim that a trial court judge has 0:16:40.000 --> 0:16:43.440 no choice but to grant the Justice Department surprise motion 0:16:43.520 --> 0:16:46.240 to dismiss the criminal case against him. Will the full 0:16:46.320 --> 0:16:49.360 court reverse the decision of the three judge panel who 0:16:49.400 --> 0:16:52.280 gave a victory to Flynn and the government. Joining me 0:16:52.320 --> 0:16:55.280 is Bloomberg Legal reporter Eric Lawson, who has been covering 0:16:55.320 --> 0:16:59.440 the Flynn case. Let's start with the long background of 0:16:59.480 --> 0:17:01.840 this case. How do we get to the point where 0:17:01.880 --> 0:17:05.399 there's an ombank panel of judges. Well, it does stretch 0:17:05.440 --> 0:17:08.840 back to charges that Michael Flynn pleaded guilty too. He 0:17:08.880 --> 0:17:12.760 pleaded guilty to lying to two FBI agents back in 0:17:12.760 --> 0:17:16.720 the very early days of the Russia investigation. Uh So, 0:17:17.000 --> 0:17:19.960 he was charged with that they had him on tape 0:17:20.560 --> 0:17:23.720 discussing certain matters with the Russian ambassador to the US. 0:17:24.160 --> 0:17:27.119 He did not tell the truth about those conversations to 0:17:27.280 --> 0:17:32.480 the FBI agents he was charged. He eventually pleaded guilty, 0:17:32.520 --> 0:17:35.800 but then more recently, back in January, he decided to 0:17:35.800 --> 0:17:39.040 withdraw this fleet and ultimately, around the same time the 0:17:39.040 --> 0:17:42.800 President Trump was regularly criticizing this case against one of 0:17:42.840 --> 0:17:47.720 his longtime allies, the Justice Department switched course, abandoned the case, 0:17:47.840 --> 0:17:52.960 citing new evidence, and decided to seek dismissal. Now the 0:17:53.040 --> 0:17:56.960 judge overseeing the case and then Sullivan did not immediately. 0:17:57.040 --> 0:17:59.639 Rubbert Sampas and signaled that he wanted to hold a 0:17:59.720 --> 0:18:02.800 hearing on the government's motion to dismiss the sort of 0:18:02.840 --> 0:18:06.880 get some more details about what happened, and General Flynn's 0:18:06.920 --> 0:18:10.960 attorney asked the appeals Court to order him to dismiss 0:18:11.000 --> 0:18:14.000 the case, a very unusual rare move, seeking the so 0:18:14.080 --> 0:18:16.800 called writ of man damnis to just force the judge 0:18:17.160 --> 0:18:19.919 to rule one way before he's ever issued a ruling. 0:18:21.000 --> 0:18:24.480 So initially the three judge panel of the court ruled 0:18:24.520 --> 0:18:27.920 in Flynn's favor. Ordered the judge too, said he had 0:18:27.960 --> 0:18:29.960 to dismiss the case. He didn't have the authority to 0:18:30.560 --> 0:18:35.000 look into the motion to dismiss, and Judge Sullivan, again 0:18:35.119 --> 0:18:38.720 very rare, because the judge had a lawyer represent him 0:18:38.760 --> 0:18:41.800 in this appeal, asked for an unbountrey hearing and that 0:18:41.960 --> 0:18:46.080 is what he got, which lawyers spoke before the panel. 0:18:46.119 --> 0:18:49.600 There was obviously the lawyer for Judge Sullivan and the 0:18:49.680 --> 0:18:54.040 lawyer for Flynn. Was the Justice Department represented as well. Yes, 0:18:54.119 --> 0:18:58.280 the Deputy U s Solicitor General, Jeff Wall was the president. 0:18:58.320 --> 0:19:01.520 He was questioned by the handle, so I'm very high 0:19:01.560 --> 0:19:04.960 ranking obviously lawyer for the government defending the government's decision 0:19:05.040 --> 0:19:09.640 to try to dismiss this case against flynn Um after 0:19:09.680 --> 0:19:12.840 he had already pleaded guilty. They really didn't delve too 0:19:12.920 --> 0:19:15.880 much into the substance of the crime that he could 0:19:16.000 --> 0:19:19.760 pretty guilty too, or his attempts to withdraw his fleet. 0:19:19.760 --> 0:19:22.840 It was really a separation of powers issue that they 0:19:22.880 --> 0:19:26.880 were debating about for what was essentially a four hour 0:19:27.040 --> 0:19:31.639 hearing with no break, held over the phone and video conference. 0:19:31.720 --> 0:19:35.639 So they really were looking into whether or not a 0:19:35.720 --> 0:19:40.040 federal judge had any authority and if so, what kind 0:19:40.080 --> 0:19:44.400 of authority to have any discussion or debate surrounding whether 0:19:44.480 --> 0:19:47.520 or not to grant a motion to dismiss a criminal 0:19:47.560 --> 0:19:50.600 case like this after it's already you know, been prosecuted. 0:19:50.720 --> 0:19:54.080 So very unusual circumstances. So that's why there there isn't 0:19:54.119 --> 0:19:56.800 really a lot of precedent around this. But the judge, 0:19:56.920 --> 0:20:01.840 Sullivan's lawyer, Beck Wilkinson, a well known Washington litigator, argued 0:20:01.880 --> 0:20:05.320 that Sullivan had every right to hold a hearing, which 0:20:05.320 --> 0:20:07.760 is what he wants to do. Um if he wins 0:20:07.760 --> 0:20:10.280 this appeal, he'll be able to schedule a hearing and 0:20:10.320 --> 0:20:13.480 just ask the parties about why they want to dismiss 0:20:13.520 --> 0:20:18.440 the case and the governments and General Flynn's attorneys say 0:20:18.480 --> 0:20:20.800 that this is not the role of the judiciary, that 0:20:20.840 --> 0:20:24.959 he's trying to trample on the executive branches strict authority 0:20:25.119 --> 0:20:29.840 over this type of matter. The argument of Flynn's attorney 0:20:30.080 --> 0:20:34.679 was that the court's role is ministerial. Explain what she 0:20:34.760 --> 0:20:38.359 meant by that When she was asked about this, she 0:20:38.520 --> 0:20:42.879 said that although technically the government does need leave of 0:20:42.960 --> 0:20:48.600 court to dismiss a prosecution under these circumstances, that notwithstanding 0:20:48.640 --> 0:20:51.760 the fact that the judge needs to sign it, that 0:20:51.760 --> 0:20:54.200 that doesn't mean the judge gets to decide it. That 0:20:54.560 --> 0:20:58.000 it is really just his role to a rubber stamp 0:20:58.280 --> 0:21:01.880 emotion like this and move on. That it is purely 0:21:01.960 --> 0:21:04.640 and strictly up to the executive branch in this case, 0:21:04.680 --> 0:21:08.199 the Justice Department decide who to prosecute and who not to. 0:21:08.680 --> 0:21:12.239 So it really is a very interesting matter that this 0:21:12.400 --> 0:21:15.119 court has to decide here about what the role of 0:21:15.119 --> 0:21:17.680 the judiciary has. So essentially you're going to have these 0:21:17.760 --> 0:21:20.840 judges are ruling on the extent of their own sort 0:21:20.840 --> 0:21:23.640 of authority in situations like that. The role of the judiciary. 0:21:23.880 --> 0:21:26.800 One of the judges, Judge Griffiths said, the judge is 0:21:26.840 --> 0:21:31.160 not simply a rubber stamp. Did all the judges agree 0:21:31.200 --> 0:21:34.919 with that, because obviously they're at this point because the 0:21:34.960 --> 0:21:39.240 panel ruled against the judge in this case, right, So 0:21:39.400 --> 0:21:42.440 the three judges the panel, essentially you could look at, 0:21:42.560 --> 0:21:45.560 you know, which presidents appointed them to the bench, and 0:21:45.560 --> 0:21:49.280 there were few Republicans and one Democrat. So in a sense, 0:21:49.320 --> 0:21:51.240 the Trump administration had a little bit of the upper 0:21:51.240 --> 0:21:54.720 hand is ideologically speaking, and and so they did say 0:21:54.800 --> 0:21:57.240 that the case needed to be dismissed. But when you 0:21:57.240 --> 0:22:00.320 look at the full panel that heard these are arguments 0:22:00.359 --> 0:22:03.919 on bunk, there are more judges appointed by Democrats, So 0:22:04.040 --> 0:22:06.400 that doesn't strictly mean that they're going to decide one 0:22:06.400 --> 0:22:08.480 way or the other. Is it's it's not possible to 0:22:08.520 --> 0:22:11.440 really predict anything like that. But there was a lot 0:22:11.480 --> 0:22:15.040 of skepticism about this idea that a judge in this 0:22:15.080 --> 0:22:19.199 case doesn't have any authority to look into a motion 0:22:19.320 --> 0:22:22.960 to dismiss. Eric tell us about some of the interesting 0:22:23.000 --> 0:22:26.560 hypothetical some of the judges posed. A few of the 0:22:26.640 --> 0:22:29.760 judges brought up an interesting argument though, they said that 0:22:30.240 --> 0:22:34.760 consider this hypothetical where uh prosecutor coming in saying that 0:22:34.800 --> 0:22:37.560 they want to dismiss a case that they have against 0:22:37.560 --> 0:22:40.600