Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: It's less than three weeks before election day, but courts
Speaker 2: have already started shaping the contours of the presidential election,
Speaker 2: as lawsuits challenge everything from who can vote and how
Speaker 2: they cast their ballots, to which votes count and how
Speaker 2: the winner is decided. A Bloomberg analysis has identified at
Speaker 2: least one hundred and sixty five lawsuits filed in thirty
Speaker 2: seven states in the last two years that challenge every
Speaker 2: facet of the presidential contest, and more than half of
Speaker 2: these cases have been filed in the seven states critical
Speaker 2: for an electoral college victory Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania,
Speaker 2: and Wisconsin. Joining me is Zoe Tillman, Bloomberg senior legal
Speaker 2: reporter who's crunched the numbers for her Big Take story.
Speaker 2: Zoe tell us a little about the process of identifying
Speaker 2: these lawsuits and categorizing them.
Speaker 3: So you know, I always want to start by making
Speaker 3: clear that you know, this is by no means the
Speaker 3: most comprehensive list of every single case related to the
Speaker 3: election filed in the past two years. What we wanted
Speaker 3: to do was come up with sort of a really
Speaker 3: you know, comprehensive snapshot of what the landscape looks like.
Speaker 3: So to do that, we used a couple of different sources,
Speaker 3: the first just being searches of federal court state court databases,
Speaker 3: doing keyword searches for parties that we knew we were
Speaker 3: interested in, like the Republican National Committee, the Democratic National Committee,
Speaker 3: different state election boards, using databases that the RNC has
Speaker 3: put together of cases if interested in, a site called
Speaker 3: Democracy Docket, which is founded by Mark Elias, who's known
Speaker 3: as sort of a democratic election super lawyer. And then
Speaker 3: you know, tapping into advocacy groups that are the typical
Speaker 3: filers in these cases to make sure we were capturing
Speaker 3: the work that they're doing. So it was you know,
Speaker 3: trying to cast as wide a net as possible in
Speaker 3: state and federal courts to find these cases. You know,
Speaker 3: what we found for the you know, the list of
Speaker 3: one hundred and sixty five that we settled on was
Speaker 3: they were in thirty seven states, but sort of unsurprisingly,
Speaker 3: more than half of them were concentrated in the states
Speaker 3: where the polls have you know, become close, the seven
Speaker 3: swing states that really made the difference in twenty twenty,
Speaker 3: did you.
Speaker 2: Look at which side is filing more suits? I know
Speaker 2: you said that the Republican National Committee launched what it
Speaker 2: described as a comprehensive and unprecedented legal strategy.
Speaker 3: That's right, we did, so we you know, dove into
Speaker 3: you know, not only who the name plaintiffs were, but
Speaker 3: also what law firms and advocacy groups we're bringing these
Speaker 3: cases on behalf of plaintiffs and whether they have sort
Speaker 3: of an identifiable political or ideological affiliation. And in the
Speaker 3: overwhelming number of cases that we looked at, there was
Speaker 3: sort of an identifiable affiliation to tag whether it was
Speaker 3: a major political party or an advocacy group where we
Speaker 3: could sort of code as sort of light blue and
Speaker 3: light red as opposed to the political parties which got
Speaker 3: a dark red and a dark blue. And you know,
Speaker 3: it's interesting. I think the numbers showed that Republicans and
Speaker 3: Conservatives have been more active in court, you know, more
Speaker 3: than half, but not overwhelmingly so, and that Democrats and
Speaker 3: left leaning groups have also been quite active ahead of
Speaker 3: election day, you know, more typically going in to challenge
Speaker 3: state laws or practices that they can tend are putting
Speaker 3: up illegal barriers to voting, whereas Republicans and conservatives have
Speaker 3: been going into states that they feel have been too
Speaker 3: lax on that front.
Speaker 2: So it's three weeks out and there are still new
Speaker 2: cases being filed.
Speaker 3: There are you know, as issues come up on the ground,
Speaker 3: we're seeing lawyers at the ready to bring litigation. You know, Interestingly,
Speaker 3: we've seen the Justice Department getting involved. That's sort of
Speaker 3: the final hour where Alabama and Virginia have announced plans
Speaker 3: to purge names from their voter roles based on suspicions
Speaker 3: that these are not US citizens. And so we've seen
Speaker 3: not only civil rights groups but the Justice Department filing
Speaker 3: suit ins recent weeks trying to stop that from happening. So,
Speaker 3: you know, I think the later it gets, judges are
Speaker 3: going to be wary of making any changes that aren't
Speaker 3: directly related to a late breaking event. You know, if
Speaker 3: you're going to court to sue over a law that's
Speaker 3: been on the books for two years, I think the
Speaker 3: odds of getting jugital intervention now are slim. But you know,
Speaker 3: I think we'll see cases probably being siled up to
Speaker 3: the last minute, and then a whole new surge of
Speaker 3: cases related to what actually happens.
Speaker 1: On election day.
Speaker 2: Just let's go back to twenty twenty for a moment.
Speaker 2: Tell us about the lawsuits that Trump and his allies filed.
Speaker 3: And I think it's important to go back before election
Speaker 3: day in twenty twenty to understand that too, to remember
Speaker 3: that it was the height of the pandemic in twenty twenty,
Speaker 3: and there was sort of this unprecedented for that time
Speaker 3: wave of litigation as states were figuring out on the
Speaker 3: fly how to handle voting, as restrictions on contact and distancing,
Speaker 3: all of that was being sorted out, so that really,
Speaker 3: I think set the stage where after election day there
Speaker 3: was already so much that had been in court, so
Speaker 3: much contested around how voting was happening that year that
Speaker 3: Trump and Republicans and Conservatives had already for months been
Speaker 3: saying the expansion of absent voting is going to lead
Speaker 3: to fraud, even though there was no evidence of that,
Speaker 3: and that really formed the basis for the I think
Speaker 3: it was sixty two some sixty plus US cases that
Speaker 3: Trump's campaign and allies of his filed trying to overturn
Speaker 3: results in the states that he lost.
Speaker 2: In your story, you've divided up the cases into different categories.
Speaker 2: So let's go through the categories then, and nearly a
Speaker 2: third of the cases focus on who should be allowed
Speaker 2: to vote.
Speaker 3: That's where we've seen more of a concentration of activity
Speaker 3: from Republicans and conservatives. One of the narratives that's emerged
Speaker 3: this cycle is this idea that states are failing to
Speaker 3: do enough to purge people from their roles who are
Speaker 3: ineligible either because they're not US citizens, or they've moved away,
Speaker 3: or they've passed away.
Speaker 1: You know.
Speaker 3: I think it's again worth noting that for things like
Speaker 3: non US citizen voting, the research has shown that that's rare,
Speaker 3: very uncommon, but it's sort of a narrative that's cropping
Speaker 3: up in these cases. And then on the flip side
Speaker 3: of that, we've seen democrats and left leaning groups going
Speaker 3: to court to try to defend you know, who is
Speaker 3: on the roles now or expand eligibility. An example of
Speaker 3: that would the efforts to re enfranchise people who have
Speaker 3: convictions on their record. And actually just today there was
Speaker 3: a big decision out of the Nebraska Supreme Court ruling
Speaker 3: that a state law making it possible for people with
Speaker 3: past felony convictions to vote, that that needs to be enforced.
Speaker 2: And we should just mention states have different laws about
Speaker 2: whether people with past felony convictions can vote.
Speaker 3: That's right, And I think it's sort of a broader
Speaker 3: theme of this, which is that US elections are this
Speaker 3: patchwork of different state rules and laws and practices when
Speaker 3: it comes to elections. So your ability to put your
Speaker 3: absentee ballot in a drop box in one state might
Speaker 3: not be the same process as in another. The laws
Speaker 3: are different, state constitutions are different. So you know, I
Speaker 3: think that's always another theme that we see when we
Speaker 3: look at this broad landscape of voting location.
Speaker 2: And you mentioned Alabama where the Republican Secretary of State
Speaker 2: purged three thousand residents that were listed in a federal
Speaker 2: database of foreign nationals. Where does that case stand.
Speaker 3: Right, So there's a hearing this week where two cases,
Speaker 3: one brought by the Justice Department and one brought by
Speaker 3: civil rights and immigrant rights groups. Those have been consolidated
Speaker 3: and a judge is hearing arguments and evidence right now
Speaker 3: on whether to stop that from happening, at least temporarily
Speaker 3: ahead of the election.
Speaker 2: So now let's go to how Americans vote. And you
Speaker 2: mentioned ballot drop boxes. Republicans have seemed to consistently argued
Speaker 2: against ballot drop boxes, saying it leads to fraud. I mean,
Speaker 2: has there been any proof that there's fraud from ballot
Speaker 2: drop boxes?
Speaker 3: Certainly not in any kind of widespread way. You know,
Speaker 3: I think instances may crop up of problems in a
Speaker 3: given place at a given time, but not in the
Speaker 3: sense that it's like proven to be a source of fraud.
Speaker 3: And I think we've heard from bipartisan state election officials
Speaker 3: that this is a time tested, secure way to vote.
Speaker 3: But you know, the pandemic resulted in just an explosion
Speaker 3: of voting by mail and voting absentee and states have
Speaker 3: tried to respond to that, and I think in the
Speaker 3: past four years tried to clarify the rules now that
Speaker 3: we're not in the same crisis situation, really trying to
Speaker 3: hammer out what that's going to look like going forward.
Speaker 3: But there you have still been sits over It's not
Speaker 3: so much can there be drop boxes, but it might
Speaker 3: be what kind of monitoring does there need to be?
Speaker 3: Does there need to be a physical a person sitting
Speaker 3: there watching when people put their ballots in? Can there
Speaker 3: be cameras? Where can they be placed, they need to
Speaker 3: be had an official government building, all sorts of minutia.
Speaker 3: But that make a difference.
Speaker 2: And what's happening in Wisconsin, which is of course those
Speaker 2: seven swing states. What's happening there over the ballot drop boxes?
Speaker 3: I Muisconsin was a really fascinating example where a few
Speaker 3: years ago the state Supreme Court had ruled that drop
Speaker 3: boxes were not allowed under the state's constitution and state laws.
Speaker 3: And then there was an election, the ideological balance of
Speaker 3: the state Supreme Court changed, where it went from sort
Speaker 3: of a more conservative majority to more left leaning majority.
Speaker 3: Another case came up saying you know, we think that
Speaker 3: that earlier decision was wrong and asking the court to
Speaker 3: take another look, and the court then reversed itself and said,
Speaker 3: we agree. We think that the previous majority got it
Speaker 3: wrong and drop boxes were in fact permitted in the state.
Speaker 3: So that's now the status quo and Wisconsin heading into
Speaker 3: this election cycle.
Speaker 2: Can we generally say that it's Republicans that are challenging
Speaker 2: absentee voting and ballot drop boxes rather than Democrats.
Speaker 3: I think that's right. I think that's what our research
Speaker 3: has shown. I don't think that any Republican would disagree
Speaker 3: with that. I think that's become a line in the
Speaker 3: stand where conservatives, you know, have taken the position that
Speaker 3: once you take voting out of a physical precinct, that
Speaker 3: it is just apparently less secure. Many election officials across
Speaker 3: the ideological spectrum would disagree with that, as would Democrats
Speaker 3: and civil rights groups, but it has remained sort of
Speaker 3: a live issue four years after the pandemic.
Speaker 2: Speak Coming up next, I'll continue this conversation with Bloomberg
Speaker 2: legal reporter Zoe Tillman. Certifying the vote was not something
Speaker 2: we questioned before last year's election. It's certainly different now,
Speaker 2: as a case in Georgia illustrates. I'm June Grasso, and
Speaker 2: you're listening to Bloomberg. Bloomberg has identified at least one
Speaker 2: hundred and sixty five lawsuits filed in thirty seven states
Speaker 2: in the last two years that challenge every facet of
Speaker 2: the upcoming presidential election. More than half the cases have
Speaker 2: been filed in the seven states critical for an electoral
Speaker 2: college victory. Outcomes have been mixed. The Republican National Committee
Speaker 2: lost fights over late arriving absentee ballots in Nevada and Mississippi,
Speaker 2: and the use of dropboxes in Wisconsin, but won in
Speaker 2: order limiting voter ID options for North Carolina college students.
Speaker 2: The Democratic National Committee joined an unsuccessful push to get
Speaker 2: undated mail ballots counted in Pennsylvania, but back Wisconsin's successful
Speaker 2: defense of its rules for absentee ballots requested online. I've
Speaker 2: been talking to Bloomberg senior legal reporter Zoe Tillman. Zoe,
Speaker 2: before the break, we were discussing absentee ballots and Democrats
Speaker 2: use absentee ballots more than Republicans, right.
Speaker 3: That's right. Surveys of voters who voted in twenty twenty,
Speaker 3: you know, it showed that they did in larger numbers
Speaker 3: vote for Joe Biden as compared to Donald Trump, and
Speaker 3: those are trends. I think that there's an expectation that
Speaker 3: those would continue to hold. But again, you know, this
Speaker 3: is the first presidential elections since the last presidential election
Speaker 3: and will be more of a test of what is
Speaker 3: the new normal when it comes to absent voting outside
Speaker 3: the context of a pandemic.
Speaker 2: Republicans are always pushing harder access to the polls by
Speaker 2: requiring voter IDs of different kinds, and there was just
Speaker 2: a case in North Carolina.
Speaker 3: The RNC went to court to challenge the ability of
Speaker 3: students and employees at the University of North Carolina Chapel Hill,
Speaker 3: who now have digital ID cards that they can use
Speaker 3: on their phones, basically to say that this is not
Speaker 3: what the state law allows for that it needs to
Speaker 3: be a physical hard copy of an ID. At lower
Speaker 3: court disagreed with the R and C and that the
Speaker 3: digital ideas would be fine. There was a round of
Speaker 3: of news coverage of that and headlines saying this would
Speaker 3: be permitted, and then a week later the Court of
Speaker 3: Appeal stepped in and said no. And first and you know,
Speaker 3: I think that was a good illustration of how much
Speaker 3: power courts have, not just to decide how people vote
Speaker 3: and sort of what the rules are, but also you know,
Speaker 3: how much you know, last minute preparation and changes election
Speaker 3: officials have to be prepared to contend with as these
Speaker 3: cases get decided, you know, in the final weeks, when
Speaker 3: election offices have been preparing for months or years for
Speaker 3: an election to take place.
Speaker 2: And also how confusing for voters who think they're going
Speaker 2: to go to the polls with their student ideas and
Speaker 2: then find that they can't.
Speaker 3: Right, and this is always a big concern among judges
Speaker 3: as they handle cases, especially in the final weeks and months.
Speaker 3: And you know, the US Supreme Court has urged federal
Speaker 3: in particular to be quite wary of intervening at the
Speaker 3: last minute. You know, the risk of voter confusion as
Speaker 3: well as chaos among the people running the elections. But
Speaker 3: you know, courts have had to grapple with if something
Speaker 3: is illegal or unconstitutional, how do you weigh not acting
Speaker 3: against you know, the considerations of confusion and chaos.
Speaker 2: Let's talk about which ballots count. And we've learned that
Speaker 2: the vote count is not final on election night, so
Speaker 2: when voters make mistakes on their absentee ballots, each state
Speaker 2: has a different kind of approach to this.
Speaker 3: That's right. States have the ability to decide. You know,
Speaker 3: if you send in a ballot that doesn't quite comply
Speaker 3: with the rules, do you get noticed, do you have
Speaker 3: an opportunity to fix the issue? Can you instead come
Speaker 3: to the polls on election data cast a provisional ballot?
Speaker 3: And that's a fight that we've seen play out this cycle,
Speaker 3: especially in pen Bldania, which has laws saying basically, if
Speaker 3: you send in a mail ballot and you don't put
Speaker 3: a date on the envelope, or you put a date
Speaker 3: that is clearly wrong. You know, you write your birthday
Speaker 3: instead of any date this year, that that ballot isn't
Speaker 3: counted even if it arrives by election day. And there's
Speaker 3: been a lot of litigation over that, including the federal level,
Speaker 3: which is still pending. But you know, there was another
Speaker 3: round of state court litigation. We saw lower courts blocking
Speaker 3: that law from being enforced. But then the state Supreme
Speaker 3: Court has come in in several cases and tossed those
Speaker 3: cases out, which means that for this election, at least,
Speaker 3: the expectation is that those undated or misstated ballots won't count.
Speaker 3: There's a potential for some very last minute litigation to
Speaker 3: change that, but as of now, that's the status quo.
Speaker 3: So I think again, you know, another example of these
Speaker 3: rules that on paper might seem very technical or in
Speaker 3: the leaves, but it ends up affecting you know, thousands
Speaker 3: of ballots, which can really make the difference in a
Speaker 3: swing state like Pennsylvania.
Speaker 2: I was surprised that more than half of all states,
Speaker 2: except at least some absentee ballots that arrive after November fifth.
Speaker 2: So yes, probably more fights to come on that. So
Speaker 2: now we'll move to this area how the election is finalized.
Speaker 2: And as you point out, certification of the vote, I
Speaker 2: mean was never anything that was talked about before the
Speaker 2: last presidential election.
Speaker 3: That's right. It's long been considered sort of a ministerial
Speaker 3: role where you know, as long as the numbers, the
Speaker 3: number of ballots that come in match in some reasonable
Speaker 3: way the number of people who are eligible to vote
Speaker 3: in that precinct, that they then move on to the
Speaker 3: next phase of things. And there are ways to challenge
Speaker 3: ballot counts after the certification process, but that was never
Speaker 3: really seen as sort of a flashpoint in this process.
Speaker 3: That changed into one when after the election, Donald Trump
Speaker 3: and his supporters looked for ways to overturn results in
Speaker 3: states where it appeared he was set to lose and
Speaker 3: you know, pressure campaigns on state lawmakers to intervene and
Speaker 3: then eventually on Congress to intervene. But it really put
Speaker 3: new attention on disphase of the certification process at the
Speaker 3: county and state level as a potential pressure point and
Speaker 3: a place for supporters of one candidate or another to
Speaker 3: use their power in a way that it hadn't been
Speaker 3: used before to intercede if it looked like the preferred
Speaker 3: candidate is going to lose.
Speaker 2: A judge decided one of these cases in Georgia just yesterday.
Speaker 3: That's right. There's a Republican member of the Fulton County
Speaker 3: Election Board, Julie Adams, who is Republican Trump supporter and
Speaker 3: in May, had refused to certify the results of a
Speaker 3: presidential primary on the grounds that she hadn't gotten all
Speaker 3: of the information that she felt she needed to confirm
Speaker 3: that the results were accurate and that the election went
Speaker 3: off as it should have, and the board overruled her.
Speaker 3: She was outvoted. But it raises question of you know,
Speaker 3: what happens if a county board, you know, does vote
Speaker 3: to not certify. So that went to court. Julie Adams
Speaker 3: went to court and said I want a judge to
Speaker 3: tell me that I do have the power to do this,
Speaker 3: And what happened this week was a judge that no,
Speaker 3: you don't, that it's a mandatory duty. And so far,
Speaker 3: Julie Adams lawyers in indicated they're not going to appeal this,
Speaker 3: that we expect this to continue to be sort of
Speaker 3: a live issue until we see what other local officials,
Speaker 3: do you know when it's time to cast those vote.
Speaker 2: I mean, there is concern about some of these local
Speaker 2: rules that were enacted since the last presidential election, and
Speaker 2: there's going to be a hearing today Enjoy again on
Speaker 2: a local rule requiring a hand count of ballots at
Speaker 2: the county level.
Speaker 3: There have been several changes by the Georgia State Election Board,
Speaker 3: which has a Republican majority, taking steps that critics and
Speaker 3: even some Republican prominent Republicans in the state have said
Speaker 3: are not lawful and aimed at sowing chaos confusion ahead
Speaker 3: of the election and afterwards. And the handcount rule would
Speaker 3: require precinct level officials to do a handcount of ballots
Speaker 3: before they moved to the next phase of counting. There's
Speaker 3: a lot of concern that this will dramatically hold things up,
Speaker 3: that this could expose open the post election processed security issues.
Speaker 3: If you know, ballots are just out of the boxes
Speaker 3: of being handled by multiple people. So we had a
Speaker 3: ruling last night from a judge blocking that rule. There
Speaker 3: are other cases before other judges that have hearings today.
Speaker 3: So another one of these sort of fast moving, very
Speaker 3: late in the game. Supplication you have to.
Speaker 2: Be on alert twenty four hours a day, it seems
Speaker 2: for these all these cases coming down and explain what
Speaker 2: the twenty twenty two congressional legislation did.
Speaker 3: So After twenty twenty which exposed some real gaps in
Speaker 3: the process that folks could potentially exploit, Congress came in
Speaker 3: and in bipartisan legislation and acted a series of reforms,
Speaker 3: including sort of clear deadlines for the different phases of
Speaker 3: a certification, made clear which state officials were responsible for
Speaker 3: signing off on results. And you know, I think generally
Speaker 3: election experts were pleased with this, that they felt that
Speaker 3: it did sort of head off potentially more mischief. Another
Speaker 3: change I should say is that it made clear that
Speaker 3: the vice president's duty to confirm the results of Congress's
Speaker 3: certification is again sterial, not discretionary. Trying to avoid another
Speaker 3: situation like sir Donald Trump was pressuring, like Pence intervened
Speaker 3: at the last minute. But you know, this is going
Speaker 3: to be the first test and to see how it
Speaker 3: goes and whether there are still other areas that could
Speaker 3: be misused if it looks like it's a close race.
Speaker 2: As you mentioned in your story, a lot of election
Speaker 2: experts say that a problem with all this litigation is
Speaker 2: that voters start to doubt that the process is fair.
Speaker 3: I mean, listen, litigation is inherently adversarial. Right, someone is
Speaker 3: coming to court because to them, at least, there is
Speaker 3: some problem that requires a judge to step in and decide,
Speaker 3: you know, who is right and who is wrong. And
Speaker 3: so it becomes, at a minimum, you know, a vehicle
Speaker 3: to raise concerns, to ask questions, to plant seeds of
Speaker 3: doubt that the election is going to go off the
Speaker 3: way that it should and in compliance with state and
Speaker 3: federal laws and constitutions. And the more that you have
Speaker 3: that landing in courts, you know, it's a potential for
Speaker 3: people to see headlines and ask, you know, are their
Speaker 3: problems with the election, regardless of what the final outcome
Speaker 3: might be months or even years down the line, depending
Speaker 3: on how long litigation takes to resolve. So, you know,
Speaker 3: as a general rule, courts and judges are not supposed
Speaker 3: to be the ones deciding elections in our system. We
Speaker 3: want that's a flighted by voters. So there's a concern,
Speaker 3: sort of an overarching concern that this could become a
Speaker 3: new normal where courts become major players in election cycles
Speaker 3: in a way that they just haven't been in the past, and.
Speaker 2: It seems like everyone is anticipating that no matter who wins,
Speaker 2: there are going to be a lot of lawsuits over
Speaker 2: the election. Thanks so much, Zoe, great story and so
Speaker 2: much research went into it. That's Zoe Tillman, Bloomberg Senior
Speaker 2: Legal reporter. Coming up next on The Bloomberg Law Show.
Speaker 2: The Supreme Court appears divided on whether a truck driver
Speaker 2: can sue the maker of CBD oil under the Rico Statute,
Speaker 2: which was originally intended to fight organized crime. I'm June
Speaker 2: Grosso and you're listening to Bloomberg. The Supreme Court seemed
Speaker 2: divided over whether a truck driver can sue the maker
Speaker 2: of a CBD hemp oil he alleges cost him his
Speaker 2: job using the Rico Statute. The Racketeer, Influenced and Corrupt
Speaker 2: Organizations Act, a federal law that was designed to fight
Speaker 2: organized crime. The question before the court was a narrow one.
Speaker 2: Did his case satisfy Rico's requirement that his business or
Speaker 2: property had been injured? Just as Clarence Thomas questioned his
Speaker 2: lawyer esha anand so.
Speaker 4: The injury here is we were fired. That's the injury
Speaker 4: to our business. Now, as a measure of compensation for that,
Speaker 4: images we claim are an amount equal to the salary
Speaker 4: we would have made and the other economic benefits that
Speaker 4: we would have gotten had we remained employed.
Speaker 3: But Medical Marijuana did not fire you.
Speaker 2: But just as Elena Kagan seemed to indicate that the
Speaker 2: truck driver's case fell within that requirement of the Rico statute,
Speaker 2: if you're harmed when you lose a job, then you've
Speaker 2: been injured in your business. Haven't you joining me? Is
Speaker 2: Brian Wolfman, a professor at Georgetown Law start by telling
Speaker 2: us about the facts in this case.
Speaker 1: So the facts are rather simple and disturbing. This outfit
Speaker 1: Medical Marijuana was marketing a product They claimed it had
Speaker 1: no psychoactive effect and did not contain any THCHC. In fact,
Speaker 1: they claimed it had zero THCHC, which is an active
Speaker 1: ingredient as you may know in marijuana. So mister Horn,
Speaker 1: who was actually searching the internet to help his mother
Speaker 1: in law who had some pain difficulties, saw advertisements on
Speaker 1: the Internet for medical Marijuana's product. He himself was a
Speaker 1: truck driver who, way back in twenty twelve, had suffered
Speaker 1: a serious injury and had continuing back pain that he
Speaker 1: was never able to tackle. And he was still a
Speaker 1: truck driver and really wanted to do something to deal
Speaker 1: with his pain. And he said, well, you know, look,
Speaker 1: if this has no THHC in it, I'm going to
Speaker 1: give it a try. Now, why was he worried about
Speaker 1: ingesting something that had the active ingredient in marijuana? Because
Speaker 1: he's a truck driver and he is periodically screened for
Speaker 1: the possibility that he might be using unlawful drugs. So
Speaker 1: he purchases the product based on the representation made by
Speaker 1: the sellers that it contains no THC. Long behold, Apparently
Speaker 1: it did contain THHC and he goes through shortly thereafter
Speaker 1: a periodic screening by his employer, it detects THC in
Speaker 1: his body and he is immediately fired. And of course
Speaker 1: that's very distressing. He suffers great harm, I'm sure, both
Speaker 1: emotional and obviously financial that he and his family because
Speaker 1: this is his sole means of livelihood and he has
Speaker 1: now lost his job. That can be traced pretty directly
Speaker 1: to an alleged fraud committed by this company.
Speaker 2: Most people think of the Rico Statute as it was
Speaker 2: enacted in order to combat organized crime. So he sues,
Speaker 2: why is he suing under RICO.
Speaker 1: Well, he's suing under RICO because for many years now,
Speaker 1: and this goes back for decades now. Yes, RICO was
Speaker 1: an attempt both criminally and civilly to get at organized crime.
Speaker 1: It's called the Racketeer, Influence and Corrupt Organization Act. But
Speaker 1: its words, you'll cast its web far more broadly, and
Speaker 1: I think that was within the intention of Congress, and
Speaker 1: in any event, its words are much broader, and they
Speaker 1: encompass civil conspiracies where there is a predicate act, a
Speaker 1: predicate violation of law that is conducted among numerous people,
Speaker 1: a conspiracy that imposes intentional harms on individuals, and what
Speaker 1: it says, And I think I want to point to
Speaker 1: the part of the statute that said issue in this case,
Speaker 1: RICO permits any person injured in his business or property
Speaker 1: by reason of racketeering activity to bring a civil lawsuit
Speaker 1: for three times the damages he sustains. So let me
Speaker 1: focus on the keywords. Now, any person injured in his
Speaker 1: business or property by reason of unlawful activity under this law.
Speaker 1: And so what mister Horne argues is quite simple that
Speaker 1: the economic harms resulting from the injuries he sustained are
Speaker 1: injured reason to his business or property by reason of
Speaker 1: the defendants violations of RICO. And the reason we know
Speaker 1: that is because his business was his truck driving business.
Speaker 1: One's employment is one's business. So his argument is very simple.
Speaker 1: The Second Circuit Court of Appeals, which is headquartered in
Speaker 1: New York, agreed with him, and the Supreme Court took
Speaker 1: this case on because it's thought that the courts of
Speaker 1: appeals around the country had disagreed on this subject.
Speaker 2: Tell us about the argument of the defendants here medical marijuana.
Speaker 1: Their argument is that this statute doesn't cover harms that
Speaker 1: have its origins in personal injuries, and here because the
Speaker 1: personal injury or the first in time injury was the
Speaker 1: ingestion of this product that contained THC. Even if the
Speaker 1: ulimate harm is in part a harm to one's business
Speaker 1: or property, in this case, the business of being employed
Speaker 1: as a truck driver, it doesn't count under RICO because
Speaker 1: it has its origins and personal injuries and personal injuries
Speaker 1: arms are not covered by the statue. The problem with that,
Speaker 1: and I think this is mister Horn's argument. The problem
Speaker 1: with that is that's not what the statute says. The
Speaker 1: statue says, any person injured in his business or property
Speaker 1: by reason of a violation should recover three times as damages.
Speaker 1: And the injury here in his business again I'm repeating myself,
Speaker 1: is the injury in his employment, in fact, losing all
Speaker 1: his wages because he was fired as soon as it
Speaker 1: was discovered that he had THC in his system.
Speaker 2: Several of the Conservative justices seemed to be leaning away
Speaker 2: from the truck driver's interpretation. Chief Justice John Roberts basically
Speaker 2: has to question, you know, this could make every slip
Speaker 2: and fall into a RICO violation. And Justice Brett Kavanaugh
Speaker 2: also spend some time talking about the fact that there
Speaker 2: could be sort of an explosion of cases here.
Speaker 1: Yes, I mean that was a concern. Let me explain,
Speaker 1: I think what the counters to that position that were
Speaker 1: put forth by mister Horn's council. The first is, if
Speaker 1: that's true, that is that there are more cases that
Speaker 1: could now be brought under civil rico. One answer is,
Speaker 1: this is the statute that Congress wrote, and if Congress
Speaker 1: wishes to narrow the statute and exclude certain violations that
Speaker 1: are said to have origins and a personal injury like
Speaker 1: the injury from ingesting a drug product, then Congress can
Speaker 1: do so. But I think also the argument is this
Speaker 1: is not like any slip and fall, because the slip
Speaker 1: and fall, say you know, a slip and fall outside
Speaker 1: of building or at the local super market, just involves
Speaker 1: the negligence, for instance, of a worker at the supermarket
Speaker 1: not to clean up the floor, so they slipped and
Speaker 1: they fell. But RICO requires much more. First of all,
Speaker 1: it requires intentionality, not just negligence. Second of all, it requires,
Speaker 1: as I said at the beginning, a predicate violation, So
Speaker 1: not simply that there was the slip and fall of
Speaker 1: the negligence, but there has to be predicate wrong. And
Speaker 1: here the predicate wrong was a mail fraud. They used
Speaker 1: the mails, which is a separate federal violation that would
Speaker 1: not be true in the slip and fall situation. And
Speaker 1: there are a number others what were referred to as
Speaker 1: guard rails. She's well understood that an injury in one's
Speaker 1: business or property does not include emotional harms what are
Speaker 1: known in the law as non pecuniary harms, like emotional harm,
Speaker 1: pain and suffering, humiliation. All of those things would be
Speaker 1: recoverable in a typical tot action, in a typical slip
Speaker 1: and fall, and in fact, in modern American tart law,
Speaker 1: much of the recoveries in a slip and fall or
Speaker 1: other kinds of personal injury cases, much of the recovery
Speaker 1: are those kinds of what are known as non pecuniary damages.
Speaker 1: They are not recoverable under RICO. So in some sense
Speaker 1: reco gives, but in other ways it takes away. So
Speaker 1: I think all those things should be taken into account.
Speaker 1: But I want to come back to the to the
Speaker 1: first point, which if the Court rules here in favor
Speaker 1: of mister Horn, with which it may, well, do you
Speaker 1: know Congress is free to amend the statute to narrow
Speaker 1: in a way that it views is appropriate, or even
Speaker 1: that it views as consistent with its original intent. And
Speaker 1: I think the argument being made by mister Horn is
Speaker 1: that this no origins in personal injury. Limitation just doesn't
Speaker 1: appear in.
Speaker 2: The listening to the oral arguments, did you think that
Speaker 2: the justices were divided on this issue or do you
Speaker 2: think that they were leaning toward Horn.
Speaker 1: I don't know the answer to that. It's always difficult
Speaker 1: to predict for a number of reasons. One reason can
Speaker 1: be that the judges are just truly looking to answer
Speaker 1: questions that they're not certain about. And just because they're
Speaker 1: asking a question from one angle or another, does it
Speaker 1: necessarily they're leaning one way or another. Sometimes a question
Speaker 1: that looks like it's coming from a place of concern
Speaker 1: is looking just for a potential way to narrow the ruling,
Speaker 1: if it doesn't necessarily mean that that justice is planning
Speaker 1: to rule against this party or that party. So I
Speaker 1: think it's just very hard to tell. And I think
Speaker 1: that the Court is truly I wouldn't say undecided, but
Speaker 1: truly looking for a way to fully understand this case.
Speaker 1: And I did not take anything one way or other
Speaker 1: from the questioning. And you mentioned the concerns coming from
Speaker 1: the Chief Justice or Justice Kavanaugh, and I did not
Speaker 1: take them as necessarily leaning against mister Horn, but expressing
Speaker 1: some concern over the kind of litigation a ruling in
Speaker 1: favor of mister Horn might lead to, and wondering whether
Speaker 1: there are there are any guard wails that might mitigate
Speaker 1: to some degree a ruling in favor of mister Horn.
Speaker 2: An interesting case of statutory interpretation. Thanks so much. That's
Speaker 2: Brian Wolfman, a professor at Georgetown Law. And that's it
Speaker 2: for this edition of the Bloomberg Law Podcast. Remember you've
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