WEBVTT - Disney May Have Upper Hand in Fight With DeSantis 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.960 --> 0:00:13.240 Welcome to the happiest place on Earth. 0:00:13.360 --> 0:00:16.240 Where you're happy is everywhere anywhere. 0:00:17.040 --> 0:00:20.320 Disney World may be the happiest place on Earth for visitors, 0:00:20.800 --> 0:00:24.360 but the company itself is not so happy with Florida's 0:00:24.400 --> 0:00:27.800 governor ending its ability to govern it's twenty five thousand 0:00:27.880 --> 0:00:32.240 acre resort. So Disney is suing Republican Governor Ron DeSantis, 0:00:32.640 --> 0:00:37.600 alleging he orchestrated a targeted campaign of government retaliation as 0:00:37.680 --> 0:00:42.920 punishment for Disney's protected speech opposing Florida's don't Say Gay law. 0:00:43.240 --> 0:00:45.520 Desanta says, the lawsuit is political. 0:00:46.200 --> 0:00:51.319 They've been treated much different than Universal SeaWorld and all 0:00:51.360 --> 0:00:55.760 these other places, and so they're upset because they're actually 0:00:55.760 --> 0:00:58.160 having to live by the same rules as everybody else. 0:00:58.480 --> 0:00:59.920 They don't want to have to pay the same time 0:01:00.520 --> 0:01:01.280 everybody else. 0:01:01.680 --> 0:01:05.040 But in the lawsuit, Disney points to dessantis his memoir 0:01:05.120 --> 0:01:08.520 where he described the bill against Disney and said quote, 0:01:08.560 --> 0:01:12.640 Disney had clearly crossed a line in supportive indoctrinating very 0:01:12.680 --> 0:01:17.399 young school children in woke politics. And also his many 0:01:17.480 --> 0:01:21.240 public statements against Disney like this on April sixth. 0:01:21.720 --> 0:01:25.520 They are not superior to the people of Florida, and so, 0:01:25.680 --> 0:01:28.160 come hell or high water, we're going to make sure 0:01:28.520 --> 0:01:31.920 that that policy of Florida carries the day, and so 0:01:32.200 --> 0:01:35.399 they can keep trying to do things, but ultimately we're 0:01:35.400 --> 0:01:38.640 going to win on every single issue involving Disney. 0:01:38.680 --> 0:01:43.120 I can tell you that Dessanders has also speculated publicly 0:01:43.640 --> 0:01:47.280 about what other actions he might take to punish Disney. 0:01:47.640 --> 0:01:49.080 And now people are like, what should we do with 0:01:49.120 --> 0:01:51.960 this land. People have said, maybe create a state park, 0:01:52.120 --> 0:01:54.880 Maybe try to do more amusement parks. 0:01:54.920 --> 0:01:57.559 Someone even said like, maybe you need another state prison. 0:01:57.600 --> 0:01:58.160 Who knows. 0:01:58.200 --> 0:02:01.720 I mean, I just think that the positive abilities are endless. 0:02:01.760 --> 0:02:04.400 My guest is Leslie Kendrick, director of the Center for 0:02:04.440 --> 0:02:08.000 the First Amendment at the University of Virginia School of Law. 0:02:08.360 --> 0:02:11.480 Tell us a little about Disney's lawsuit against DeSantis. 0:02:12.080 --> 0:02:16.360 So, Disney's recently filed suit against DeSantis on a number 0:02:16.400 --> 0:02:21.800 of different grounds, contracts clause, due process, the takings clause, 0:02:22.000 --> 0:02:24.760 and what's gotten the most attention our First Amendment claim 0:02:25.160 --> 0:02:29.360 arguing that Florida laws that were passed that desantisis behs 0:02:29.680 --> 0:02:33.880 violate the company's First Amendment rights because they are essentially 0:02:33.960 --> 0:02:38.800 retaliation for Disney expressing a view about another piece of 0:02:38.880 --> 0:02:43.400 legislation House Billed fifteen fifty seven, which is often known 0:02:43.520 --> 0:02:47.400 as the Don't Say Gay Act, about regulating educators in 0:02:47.480 --> 0:02:50.480 their presentation of material about same sex orientation. 0:02:50.960 --> 0:02:51.760 So this is a. 0:02:51.639 --> 0:02:55.519 Claim that essentially that the steps that DeSantis and the 0:02:55.600 --> 0:02:59.200 legislature have taken since Disney did that amount to a 0:02:59.240 --> 0:03:02.040 First Amendment by violation of Disney's right to pre speech. 0:03:03.080 --> 0:03:07.720 Desantra'ss tough talk talk toward Disney is cited throughout the lawsuit, 0:03:07.800 --> 0:03:13.239 including eighteen quotes referring to some form of woke Disney. 0:03:13.840 --> 0:03:16.640 Is that the strongest part of their lawsuit what he 0:03:16.760 --> 0:03:17.560 said himself. 0:03:18.280 --> 0:03:20.799 So, as you know, all of this started more than 0:03:20.840 --> 0:03:24.280 a year ago when Disney first made the statements about 0:03:24.760 --> 0:03:28.959 how Spill fifteen fifty seven, and DeSantis was critical of them, 0:03:29.200 --> 0:03:32.880 saying that they had crossed the line in their criticism 0:03:33.240 --> 0:03:38.160 of the law. And the complaint does include many statements 0:03:38.400 --> 0:03:43.400 by DeSantis and also by legislators in Florida, and just 0:03:43.480 --> 0:03:48.600 to be clear, statements that amounted to just criticism of 0:03:48.640 --> 0:03:53.000 Disney wouldn't create the same issues. The reason the statements 0:03:53.040 --> 0:03:56.440 are important in the context of this lawsuit is that 0:03:56.520 --> 0:04:01.720 they argue to the motive or purpose of the specific 0:04:01.800 --> 0:04:06.320 legal actions that the legislature took with regard to Disney's 0:04:06.400 --> 0:04:10.480 development district there around Orlando. The argument is that these 0:04:10.480 --> 0:04:13.920 statements show that this action was taken not for some 0:04:14.040 --> 0:04:18.400 neutral business reason, but precisely because of and out of 0:04:18.440 --> 0:04:22.559 retaliation for Disney's speech about the Don't Say a bill. 0:04:23.240 --> 0:04:27.000 Randy Fine, a Republican who advanced the bill at that time, said, 0:04:27.000 --> 0:04:29.599 you kicked the hornets nest things come up, and I 0:04:29.680 --> 0:04:32.080 will say this. You got me on one thing. This 0:04:32.160 --> 0:04:36.640 bill does target one company. It targets the Walt Disney Company. 0:04:37.360 --> 0:04:40.880 Is it targeting Walt Disney enough or does that targeting 0:04:40.960 --> 0:04:44.839 have to be in retaliation for what Disney said? 0:04:45.240 --> 0:04:47.760 Well, let's books for a larger question in law of 0:04:47.800 --> 0:04:51.280 how we determine what the motivation or reason for a 0:04:51.400 --> 0:04:54.400 law was, particularly in the context of a multi member 0:04:54.480 --> 0:04:58.000 body like a legislature, and the Supreme Court has spoken 0:04:58.040 --> 0:05:01.960 to that numerous times. One thing cited in the complaint 0:05:02.000 --> 0:05:07.359 is a precedent from equal protection doctrine that suggests you 0:05:07.480 --> 0:05:10.880 have to look at the structure of the law to 0:05:11.040 --> 0:05:15.719 help to wash out its purpose. And here this law 0:05:15.800 --> 0:05:18.919 has passed under circumstances they are very different from the 0:05:18.960 --> 0:05:23.599 customary way that the Florida legislature addresses development districts like this, 0:05:23.760 --> 0:05:27.440 and of course there are about eighteen hundred development districts 0:05:27.480 --> 0:05:30.840 like this around the state. More recently, in the Masterpiece 0:05:30.960 --> 0:05:34.240 cake Shop case involving another part of the First Amendment, 0:05:34.560 --> 0:05:39.040 the free Exercise clause, the court found that an entire 0:05:39.160 --> 0:05:43.840 process had been painted by basically the remarks of one 0:05:44.400 --> 0:05:47.880 or two members of the first governing body that had 0:05:47.880 --> 0:05:51.520 addressed the problem, and suggested that that was enough to 0:05:51.560 --> 0:05:55.000 discover a discriminatory purpose. So they've said a lot of 0:05:55.040 --> 0:05:58.920 different things about this, and there are cases within the 0:05:58.920 --> 0:06:02.239 free speech doctrine that suggests the timing of an action, 0:06:02.440 --> 0:06:06.760 the circumstances of an action, all goes towards the reason 0:06:06.800 --> 0:06:07.679 that it was done. 0:06:07.960 --> 0:06:10.800 Can you explain what Disney would have to prove in 0:06:10.839 --> 0:06:11.640 its lawsuit. 0:06:12.480 --> 0:06:16.280 Yeah, So, what Disney is alleging is that it has 0:06:16.400 --> 0:06:20.000 enjoyed a special relationship with the state of Florida dating 0:06:20.040 --> 0:06:22.960 back to nineteen sixty seven with the creation of the 0:06:23.040 --> 0:06:27.320 Riedy Creek Improvement District, which is the area including the 0:06:27.400 --> 0:06:31.039 Disney Parks, Walt Disney World and all around there that 0:06:31.720 --> 0:06:35.360 enabled Disney to develop that property. But at the same time, 0:06:35.400 --> 0:06:39.880 in post obligations, Disney is responsible for some basic services. 0:06:39.880 --> 0:06:43.640 They are electricity and water so forth, and the improvement 0:06:43.680 --> 0:06:46.360 of it, including you know, hundreds of millions of dollars 0:06:46.360 --> 0:06:52.000 of infrastructure. Disney's argument is that this relationship has been 0:06:52.120 --> 0:06:56.600 changed by the legislature at the santis's behest because of 0:06:57.160 --> 0:07:01.080 Disney's exercise of its First Amendment rights expression of opposition 0:07:01.240 --> 0:07:05.160 to how Spilled fifteen fifty seven. What they need to 0:07:05.200 --> 0:07:09.520 show is that that action was taken because of their 0:07:09.720 --> 0:07:12.600 exercise at First Amendment rights. Essentially, they need to show 0:07:12.920 --> 0:07:17.239 a close enough connection between the actions taken the law's 0:07:17.280 --> 0:07:21.840 pass to dissolve the development district and reincorporate it under 0:07:21.880 --> 0:07:25.800 the power of the Governor's office, between that and the 0:07:25.880 --> 0:07:30.480 reasons that the governor and others had stated contemporaneously in 0:07:30.600 --> 0:07:32.840 lots of different venues for why they were taking that 0:07:32.960 --> 0:07:33.480 kind of action. 0:07:34.000 --> 0:07:36.360 So it seems to a casual observer, and I'll put 0:07:36.400 --> 0:07:40.880 myself in that position that Dissantis has said a lot 0:07:41.200 --> 0:07:45.080 about why he was doing it and about getting back 0:07:45.120 --> 0:07:48.720 at Disney putting disney In's place. Is that enough if 0:07:48.720 --> 0:07:50.760 he wants to put Disney in his place, or does 0:07:50.800 --> 0:07:54.600 it have to be in retaliation for what Disney said? 0:07:54.840 --> 0:07:58.120 I mean, the whole thing started after that law, in 0:07:58.200 --> 0:07:59.600 Disney's opposition to it. 0:08:00.160 --> 0:08:00.440 Yeah. 0:08:00.640 --> 0:08:03.480 So you know, the basic idea in First Amendment law 0:08:03.680 --> 0:08:05.760 is that there are all sorts of reasons that the 0:08:05.760 --> 0:08:09.800 government could reconfigure a special relationship that it has with 0:08:09.880 --> 0:08:13.080 a private citizen. We don't have claims of a right 0:08:13.160 --> 0:08:15.840 to be a public employee or to enjoy a certain 0:08:15.880 --> 0:08:19.640 public benefit, and the government can reconfigure those relationships for 0:08:19.680 --> 0:08:22.120 a lot of different reasons. But what it can't do 0:08:22.520 --> 0:08:26.400 is do that in response to or because of, an 0:08:26.440 --> 0:08:30.560 exercise of protected speech by the beneficiary. So you can't 0:08:30.600 --> 0:08:34.280 take away someone's job as a public university professor because 0:08:34.280 --> 0:08:37.800 they're communists, for example. That's the takeaway from McCarthy era. 0:08:38.160 --> 0:08:41.680 So here we have a much stronger record than we 0:08:41.840 --> 0:08:48.000 usually have of lawmakers taking action in response to an 0:08:48.000 --> 0:08:51.720 exercise of protected expression. A lot of times these sources 0:08:51.720 --> 0:08:54.840 of actions occur kind of sub rosa. You know, a 0:08:54.880 --> 0:09:01.000 government employee expresses support for their bosses political opponent, and 0:09:01.040 --> 0:09:04.760 they're quietly demoted or fired, and the government doesn't want 0:09:04.800 --> 0:09:07.120 to call attention to the fact that that's what it's 0:09:07.200 --> 0:09:11.000 doing here. Part of the reason I think for the 0:09:11.040 --> 0:09:13.760 action was also to be able to tell the action 0:09:14.040 --> 0:09:19.360 to say, we are taking action against woke Disney because 0:09:19.360 --> 0:09:22.360 they're woke Disney. So you know, of cour it's going 0:09:22.400 --> 0:09:23.840 to have to look at all of this, But it's 0:09:23.880 --> 0:09:26.560 a much different kind of record than you often have 0:09:27.080 --> 0:09:30.880 when someone's asserting that adverse action has been taken against 0:09:30.880 --> 0:09:33.880 them because of their exercise of their First Amendment rights. 0:09:35.000 --> 0:09:38.560 The governor spokesman said that his office was unaware of 0:09:38.600 --> 0:09:41.319 any legal right that allows a company to operate its 0:09:41.360 --> 0:09:46.160 own government or maintain special privileges. That's a reference to 0:09:46.320 --> 0:09:50.520 the decades old district that's home to Disney World. But 0:09:50.679 --> 0:09:53.320 isn't that beside the point. That's not really the issue here, 0:09:53.360 --> 0:09:56.479 whether or not Disney has a right to that. 0:09:56.480 --> 0:09:59.600 That's right, it's beside the issue in the First Amendment claim. 0:09:59.679 --> 0:10:04.240 Because although the government could revisit the relationship with Disney 0:10:04.400 --> 0:10:07.600 and the existence and conditions of the Ride Creek Improvement 0:10:07.679 --> 0:10:11.640 District for all sorts of different reasons. The First Amendment 0:10:11.679 --> 0:10:14.640 and First Amendment law holds that they can't do it 0:10:14.960 --> 0:10:19.359 out of response to Disney's exercise of their protective expression, 0:10:19.440 --> 0:10:22.839 the same way that you couldn't fire a government employee 0:10:22.960 --> 0:10:27.360 for speech outside of work on a matter of public concern, 0:10:28.080 --> 0:10:31.800 except in very very narrow circumstances. There's going to be 0:10:31.840 --> 0:10:34.360 a very high bar to meet for that, the same 0:10:34.440 --> 0:10:37.440 way that you couldn't revoke a contract with There's a 0:10:37.480 --> 0:10:40.920 case from the nineties involving a truck service that had 0:10:40.920 --> 0:10:43.840 a contract with the city and they're taken off the 0:10:43.960 --> 0:10:49.320 list of contractors of available towing companies in response to 0:10:49.520 --> 0:10:52.960 some protected speech. That's not okay, right, So the law 0:10:53.040 --> 0:10:56.040 is very clear that even if what we're talking about 0:10:56.080 --> 0:10:59.640 is a special relationship, First Amendment law says you can't 0:10:59.760 --> 0:11:04.440 moby that simply in response to protected expression. 0:11:05.080 --> 0:11:08.280 Desanders and his allies have characterized their actions as you know, 0:11:08.320 --> 0:11:11.640 putting Disney on a level playing field with other themed 0:11:11.760 --> 0:11:17.160 park operators. But Universal Orlando, SeaWorld and Bush Gardens and 0:11:17.240 --> 0:11:21.160 Legoland do not have oversight boards controlled by the governor. 0:11:21.720 --> 0:11:22.840 Does that factor in here? 0:11:23.920 --> 0:11:24.600 Right there? 0:11:24.600 --> 0:11:27.600 Are different aspects to this. One is putting them on 0:11:27.640 --> 0:11:31.000 a level playing field is not permissible if the reason 0:11:31.040 --> 0:11:34.840 that it's being done is because of protected speech. Even 0:11:34.880 --> 0:11:38.000 if it reduces Disney to the same status as others, 0:11:38.040 --> 0:11:40.760 that's not okay if the reason their benefits are being 0:11:40.800 --> 0:11:44.080 taken away is because of exercise of protected expression. But 0:11:44.240 --> 0:11:47.079 beyond that, there are factual questions here as to whether 0:11:47.520 --> 0:11:51.040 it's even true that this action puts Disney in the 0:11:51.080 --> 0:11:57.439 same situation as other similar enterprises, And to the extent 0:11:57.520 --> 0:12:00.719 that the actions taken do not do that, that can 0:12:00.760 --> 0:12:04.440 be itself further evidence that this action was punitive and 0:12:04.440 --> 0:12:05.280 retally tory. 0:12:06.120 --> 0:12:09.160 What kind of defense do you think DeSantis would be 0:12:09.240 --> 0:12:11.359 able to raise in the Disney suit. 0:12:11.840 --> 0:12:14.480 Well, I think there'll be a couple different tacts. One 0:12:14.480 --> 0:12:17.920 will be to try to portray this action is neutral. 0:12:18.000 --> 0:12:19.840 You already see that in some of the statements that 0:12:19.840 --> 0:12:23.480 have been made, and to try to draw on strands 0:12:23.480 --> 0:12:26.960 within the doctrine that are the most hospitable to claims 0:12:27.000 --> 0:12:30.360 that there's some degree of discretion that government actors have. 0:12:30.960 --> 0:12:33.080 There are a lot of precedents that they would have 0:12:33.160 --> 0:12:36.440 to work around in that regard. You know, The other 0:12:36.480 --> 0:12:41.000 thing is just sometimes big picture issues, high profile issues 0:12:41.040 --> 0:12:45.120 like this cause courts to rethink relationships, and they might 0:12:45.160 --> 0:12:49.679 be arguing that the relationship between government provision of benefits 0:12:49.720 --> 0:12:53.520 and the speech of private actors, it's time to rethink that. 0:12:53.520 --> 0:12:56.199 That would be a huge, a huge move. If they 0:12:56.200 --> 0:12:58.520 were to do that, it may be that they'll stick 0:12:58.600 --> 0:13:01.320 more toward arguing on the facts that this is not 0:13:01.400 --> 0:13:02.559 a First Amendment. 0:13:02.240 --> 0:13:08.679 Violation, which discovery Disney has the opportunity to look for 0:13:08.800 --> 0:13:12.240 more kinds of evidence to build its case, like perhaps 0:13:12.559 --> 0:13:16.480 memos between the governor and his staff, things like that. 0:13:16.640 --> 0:13:19.920 I mean, they could depose the governor, right sure, So you. 0:13:19.880 --> 0:13:22.840 Know, the scope of discovery will be determined by the 0:13:22.920 --> 0:13:26.640 district court as this case starts to win its way 0:13:26.679 --> 0:13:31.880 through the system, but it discovery typically does provide more 0:13:31.920 --> 0:13:36.080 insight into the actions and conversations that were happening behind 0:13:36.120 --> 0:13:39.400 the scenes. And part of what Disney might be trying 0:13:39.440 --> 0:13:43.600 to establish here is that there are two different specific 0:13:43.880 --> 0:13:47.000 acts of the legislature that they're taking issue with that 0:13:47.120 --> 0:13:50.760 this is part of a larger effort to cut Disney 0:13:50.800 --> 0:13:53.400 off at the knees in whatever way possible. Kind of 0:13:53.679 --> 0:13:57.320 a larger attempt to think about how do we get 0:13:57.360 --> 0:13:59.720 back at Disney. You know, that would mean that their 0:13:59.720 --> 0:14:03.880 folks not just on what was said in regard to 0:14:03.920 --> 0:14:07.040 these specific bills, but what was said around the bills 0:14:07.080 --> 0:14:11.400 about how are we going to address this new Disney problem? 0:14:11.640 --> 0:14:14.800 And that could mean discovery that has somewhat of a 0:14:14.840 --> 0:14:15.760 wider scope. 0:14:15.920 --> 0:14:17.000 What is Disney seeking? 0:14:17.040 --> 0:14:21.000 If it wins, Disney would like both of the specific 0:14:21.160 --> 0:14:24.880 laws that were passed that affected it to be declared 0:14:25.040 --> 0:14:30.400 unconstitutional and to enjoy the enforcement of those acts. 0:14:30.440 --> 0:14:34.720 So the first of those back last year provided that 0:14:35.040 --> 0:14:41.240 any development district that had been incorporated before the Florida 0:14:41.320 --> 0:14:45.040 Constitution of nineteen sixty eight and had not been reincorporated 0:14:45.160 --> 0:14:49.920 since then would be dissolved as of June of this 0:14:50.000 --> 0:14:53.240 coming year. June of twenty twenty three, there were six 0:14:53.720 --> 0:14:56.240 districts in all of Florida that that was true, of 0:14:56.320 --> 0:14:59.480 Disney being by far the most prominent one. And then 0:14:59.520 --> 0:15:05.880 the secondville was directed specifically at Disney, asserting control over 0:15:05.920 --> 0:15:09.920 their district. So they would like both of those voided 0:15:09.960 --> 0:15:13.760 and essentially would like to be returned to status quo 0:15:13.840 --> 0:15:17.720 ante to the contract terms that had existed for Riedy 0:15:17.760 --> 0:15:19.280 Creek before all this began. 0:15:19.680 --> 0:15:23.000 In conclusion, how strong a case does Disney have. 0:15:23.520 --> 0:15:28.120 On existing case law? Based on the complaint, it seems 0:15:28.120 --> 0:15:31.680 that Disney has a very strong case that adverse action 0:15:31.880 --> 0:15:37.160 was taken against the corporation in response to protected expressions 0:15:37.280 --> 0:15:41.000 that was critical of the existing government. And Disney seems 0:15:41.040 --> 0:15:45.680 to have an unusually thick record of statements already public 0:15:45.760 --> 0:15:47.520 statements to help establish that. 0:15:48.040 --> 0:15:51.280 Thanks so much, Leslie. That's Leslie Kendrick, director of the 0:15:51.280 --> 0:15:53.840 Center for the First Amendment at the University of Virginia 0:15:53.920 --> 0:15:59.920 Law School. An unusual twist, the North Carolina Supreme Court 0:16:00.240 --> 0:16:04.360 reversed itself in a redistricting ruling that could scuttle a 0:16:04.480 --> 0:16:09.080 major US Supreme Court elections case. It's a highly watched 0:16:09.160 --> 0:16:13.840 case involving the so called independent state legislature theory, which 0:16:13.880 --> 0:16:17.280 would ouse state judges and other officials from long standing 0:16:17.400 --> 0:16:20.720 roles in shaping the rules for federal elections. But now 0:16:20.760 --> 0:16:24.640 the North Carolina Supreme Court has overruled its twenty twenty 0:16:24.640 --> 0:16:28.160 two decision that the Supreme Court has been reviewing. Why 0:16:28.200 --> 0:16:31.440 did it reverse itself because in the last year's election, 0:16:31.920 --> 0:16:35.920 Republicans gained control of the state's highest court, and they've 0:16:35.960 --> 0:16:40.000 backed a Republican drawn congressional map, reversing the decision that 0:16:40.080 --> 0:16:44.000 the Democratic majority had made in twenty twenty two. Here 0:16:44.080 --> 0:16:46.640 to help us sort it all out is elections law 0:16:46.720 --> 0:16:50.920 expert Richard Brefalt, a professor at Columbia Law School. How 0:16:51.160 --> 0:16:55.280 rare is it and stunning to see a state supreme 0:16:55.360 --> 0:16:59.680 court reverse itself after an election that changed the political 0:16:59.720 --> 0:17:01.400 mail makeup of the court. 0:17:01.600 --> 0:17:04.159 It is very rare, and it is very stunning for 0:17:04.200 --> 0:17:07.639 a court to do this when nothing else changed. And 0:17:07.760 --> 0:17:11.840 you sometimes see courts changing their positions on something when 0:17:11.880 --> 0:17:14.560 maybe the new facts developed, or maybe a new background 0:17:14.640 --> 0:17:17.240 law changed or something. But this is literally within the 0:17:17.240 --> 0:17:20.480 space of a few months. The North Carolina Supreme Court 0:17:20.560 --> 0:17:23.520 reversed itself on really sort of two major voting issues, 0:17:23.560 --> 0:17:26.280 the Jerrymannering case, but also a case involving a statute 0:17:26.320 --> 0:17:29.320 involving voter id These were decisions that the court had 0:17:29.359 --> 0:17:33.760 basically made or reaffirmed in December of twenty twenty two, 0:17:33.800 --> 0:17:36.280 and now in April of twenty twenty three, they've changed 0:17:36.320 --> 0:17:38.520 their minds because the membership of the court changed. 0:17:39.280 --> 0:17:42.680 Let's talk first about the decision on the congressional maps. 0:17:42.840 --> 0:17:46.159 What did the court say did explain why it was 0:17:46.200 --> 0:17:47.200 reversing itself. 0:17:47.400 --> 0:17:50.639 The Court basically says, as the US Supreme Court had said, 0:17:50.800 --> 0:17:54.520 that partisan jerrymandering is non justiciabal. That is, there's nothing 0:17:54.520 --> 0:17:56.679 in the state constitution that addresses it, and there are 0:17:56.720 --> 0:17:59.960 no standards that the court could develop that would allow 0:18:00.160 --> 0:18:04.880 them to consistently review and strike down plans as jerry 0:18:04.960 --> 0:18:09.399 manders without making policy judgments inappropriate for courts. The Court 0:18:09.600 --> 0:18:12.480 very much modeled itself after what the US Supreme Court 0:18:12.480 --> 0:18:14.439 had done in the case, but also came out of 0:18:14.440 --> 0:18:17.280 North Carolina case called Rucho US Supreme Court decided four 0:18:17.359 --> 0:18:19.800 years ago. Now, this case came up under the North 0:18:19.840 --> 0:18:24.080 Carolina Constitution and its own particular provisions dealing with elections 0:18:24.080 --> 0:18:26.840 and free speech and equal protection. But the Court said, 0:18:26.880 --> 0:18:29.600 we think that the US Supreme Court, in its interpretation 0:18:29.640 --> 0:18:32.320 of the US Constitution, basically said the standard that we 0:18:32.320 --> 0:18:35.240 should follow in interpreting our own constitution on these issues, 0:18:35.280 --> 0:18:37.080 and that the US Supreme Court was right to say 0:18:37.160 --> 0:18:40.200 that they were not standards that a court could enforce. Here, 0:18:40.480 --> 0:18:42.560 we don't think there were standards that a court could 0:18:42.600 --> 0:18:44.440 enforce here under the state Constitution. 0:18:44.720 --> 0:18:48.720 Before we go any further explain the situation with the maps, 0:18:48.760 --> 0:18:51.960 how the court's ruling changed the maps. 0:18:52.640 --> 0:18:55.119 What had happened is, of course, the North Carolina Legislature 0:18:55.119 --> 0:18:57.919 had passed maps that dealt with both the state legislature 0:18:58.240 --> 0:19:01.680 and the congressional delegation for after the twenty twenty census. 0:19:01.880 --> 0:19:04.240 Those were challenged in both federal court and also in 0:19:04.320 --> 0:19:08.040 the North Carolina courts. The North Carolina Courts concluded in 0:19:08.160 --> 0:19:11.879 the first go round that these were partisan gerrymanders in 0:19:12.000 --> 0:19:15.119 violation of the state constitution. They concluded that the state 0:19:15.160 --> 0:19:19.040 constitution prohibited that They basically sent it back to the legislature, 0:19:19.040 --> 0:19:21.359 but they also said that we were appointing judges to 0:19:21.400 --> 0:19:24.320 be special masters to review the plans of the legislature produced. 0:19:24.440 --> 0:19:27.840 The special masters appointed experts, and ultimately, over the course 0:19:27.880 --> 0:19:31.160 of two years twenty twenty one twenty twenty two, new 0:19:31.200 --> 0:19:34.520 maps were approved for the North Carolina Legislature and for 0:19:34.600 --> 0:19:38.280 the North Carolina Congressional Delegation. The North Carolina Legislature was 0:19:38.280 --> 0:19:40.919 still dominated by Republicans under the new mass as well 0:19:40.960 --> 0:19:44.000 as the old maps, but the North Carolina Congressional delegation. 0:19:44.400 --> 0:19:46.399 In the elections that were held in twenty twenty two 0:19:46.640 --> 0:19:50.440 under the court ordered maps, I think basically split evenly. 0:19:50.880 --> 0:19:54.119 I think it was seven Republicans seven Democrats, whereas people 0:19:54.280 --> 0:19:58.400 basically thought that under the map that was initially adopted 0:19:58.400 --> 0:20:01.520 by the legislature likely to be ten Republicans. 0:20:02.200 --> 0:20:06.399 Does this decision give Republican lawmakers basically free reign to 0:20:06.520 --> 0:20:10.200 draw the state legislative and congressional maps as they want to? 0:20:10.720 --> 0:20:13.159 Pretty much. I mean, they would still have to abide 0:20:13.200 --> 0:20:15.760 by one person, one vote, and they would still have 0:20:15.920 --> 0:20:19.120 to avoid anything that could be accused of being intentional 0:20:19.200 --> 0:20:23.040 racial discrimination. But in terms of partisan gerrymandering, yes, there 0:20:23.080 --> 0:20:24.080 would be no constraint. 0:20:25.359 --> 0:20:29.760 Does this case advance that so called independent state legislature theory. 0:20:30.800 --> 0:20:34.200 It kind of eliminates the problem, which is The independent 0:20:34.240 --> 0:20:38.600 state legislature theory was a theory of federal constitutional law, 0:20:39.040 --> 0:20:42.600 with the idea being that under the federal constitution, only 0:20:42.720 --> 0:20:47.440 a state legislature can draw up congressional districts. And the 0:20:47.480 --> 0:20:50.320 North Carolina Supreme Court's decision that said that under the 0:20:50.359 --> 0:20:54.960 state constitution, the legislature had violated the state constitution even 0:20:54.960 --> 0:20:57.639 with respect to the congressional districts that is currently actually 0:20:57.720 --> 0:21:00.320 before the US Supreme Court on a challenge that says 0:21:00.359 --> 0:21:04.040 a court applying its state constitution cannot take this away 0:21:04.040 --> 0:21:06.960 from the state legislature. So I guess you could say 0:21:07.080 --> 0:21:10.159 what the North Carolina Court just did is consistent with 0:21:10.200 --> 0:21:13.680 the independent state legislature theory, but it wasn't required by it, 0:21:13.760 --> 0:21:17.520 because the North Carolina Supreme Court is saying, under our constitution, 0:21:18.119 --> 0:21:21.560 North Carolina's constitution, the courts just have no role here. 0:21:22.040 --> 0:21:24.120 It be interesting to see what the US Supreme Court 0:21:24.119 --> 0:21:26.720 does now, But right now it does not appear that 0:21:26.960 --> 0:21:30.199 they have a case that they can review. They do 0:21:30.280 --> 0:21:32.680 have the case. They did hear oral argument on this 0:21:32.800 --> 0:21:36.080 question of whether or not the North Carolina Supreme Court, 0:21:36.359 --> 0:21:40.040 the old North Carolina Supreme Court violated the US Constitution 0:21:40.680 --> 0:21:43.119 by knocking down the maps of state legislature had drawn. 0:21:43.359 --> 0:21:46.320 But now the current North Carolina stren Court says they've 0:21:46.440 --> 0:21:49.000 vacated that decision, the one that's on review before the 0:21:49.000 --> 0:21:51.960 Supreme Court. So it's not clear what the US Supreme 0:21:52.000 --> 0:21:54.359 Court will do now, whether they will continue to make 0:21:54.400 --> 0:21:56.520 a decision on the theory that this is a question 0:21:57.000 --> 0:21:59.720 that could come up again in another state, or whether 0:21:59.720 --> 0:22:02.040 they will conclude that they really don't have a case 0:22:02.040 --> 0:22:03.360 in front of them anymore. 0:22:03.640 --> 0:22:05.680 If they decide not. If the Supreme Court decides not 0:22:05.720 --> 0:22:08.280 to hear the case, does that send a bad message 0:22:08.320 --> 0:22:11.520 to state courts that you can avoid having the Supreme 0:22:11.600 --> 0:22:12.879 Court review. 0:22:13.040 --> 0:22:15.600 I don't. I don't know that it sends a message 0:22:15.600 --> 0:22:18.119 one way or the other. I think it just postpones 0:22:18.280 --> 0:22:21.360 ultimate decision. There are state courts that continuing to do 0:22:21.400 --> 0:22:24.600 this now. The Alaska Supreme Court just the week before 0:22:25.080 --> 0:22:28.880 concluded that jerry mandering violates the Alaska Constitution. Of course, 0:22:28.880 --> 0:22:31.760 Alaska has only one congressional seat, so there is no 0:22:31.960 --> 0:22:35.720 federal constitutional issue with respect to drawing the congressional line, 0:22:35.720 --> 0:22:38.119 so that's not really a factor. But the Alaska Supreme 0:22:38.160 --> 0:22:40.640 Court now joins a handful of other state supreme courts 0:22:40.920 --> 0:22:44.160 and saying that jerry mandering violates their constitution. North Carolina 0:22:44.240 --> 0:22:47.280 now has just withdrawn from that group and basically says 0:22:47.320 --> 0:22:50.320 that because there is no specific provision in the North 0:22:50.359 --> 0:22:54.280 Carolina Constitution that addresses jerry mandering, courts just simply have 0:22:54.359 --> 0:22:55.439 no right to address it. 0:22:56.119 --> 0:22:59.200 The majority opinion said this case is not a bad 0:22:59.240 --> 0:23:02.800 part is in Paula, but rather about realigning the proper 0:23:02.880 --> 0:23:08.040 roles of the judicial and legislative branches. Did its opinion 0:23:08.680 --> 0:23:09.400 support that? 0:23:09.920 --> 0:23:12.639 The reasoning was pretty straightforward And it's pretty much the 0:23:12.680 --> 0:23:16.800 same reasoning that the US Supreme Court gave in its 0:23:16.880 --> 0:23:19.639 decision not to address partisan juryman ring in a case 0:23:19.800 --> 0:23:22.639 decided four years ago called Rucho. So you know, on 0:23:22.680 --> 0:23:25.560 its face, it's kind of a usual decision. I mean, 0:23:25.640 --> 0:23:29.199 what makes it seem partisan is it was the result 0:23:29.240 --> 0:23:32.040 of a partisan election in which, in fact, two Democratic 0:23:32.119 --> 0:23:34.280 judges on the North Carolina Supreme Court were replaced by 0:23:34.320 --> 0:23:37.280