Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Welcome to the happiest place on Earth.
Speaker 1: Where you're happy is everywhere anywhere.
Speaker 3: Disney World may be the happiest place on Earth for visitors,
Speaker 3: but the company itself is not so happy with Florida's
Speaker 3: governor ending its ability to govern it's twenty five thousand
Speaker 3: acre resort. So Disney is suing Republican Governor Ron DeSantis,
Speaker 3: alleging he orchestrated a targeted campaign of government retaliation as
Speaker 3: punishment for Disney's protected speech opposing Florida's don't Say Gay law.
Speaker 3: Desanta says, the lawsuit is political.
Speaker 1: They've been treated much different than Universal SeaWorld and all
Speaker 1: these other places, and so they're upset because they're actually
Speaker 1: having to live by the same rules as everybody else.
Speaker 1: They don't want to have to pay the same time
Speaker 1: everybody else.
Speaker 3: But in the lawsuit, Disney points to dessantis his memoir
Speaker 3: where he described the bill against Disney and said quote,
Speaker 3: Disney had clearly crossed a line in supportive indoctrinating very
Speaker 3: young school children in woke politics. And also his many
Speaker 3: public statements against Disney like this on April sixth.
Speaker 4: They are not superior to the people of Florida, and so,
Speaker 4: come hell or high water, we're going to make sure
Speaker 4: that that policy of Florida carries the day, and so
Speaker 4: they can keep trying to do things, but ultimately we're
Speaker 4: going to win on every single issue involving Disney.
Speaker 3: I can tell you that Dessanders has also speculated publicly
Speaker 3: about what other actions he might take to punish Disney.
Speaker 4: And now people are like, what should we do with
Speaker 4: this land. People have said, maybe create a state park,
Speaker 4: Maybe try to do more amusement parks.
Speaker 1: Someone even said like, maybe you need another state prison.
Speaker 3: Who knows.
Speaker 1: I mean, I just think that the positive abilities are endless.
Speaker 3: My guest is Leslie Kendrick, director of the Center for
Speaker 3: the First Amendment at the University of Virginia School of Law.
Speaker 3: Tell us a little about Disney's lawsuit against DeSantis.
Speaker 2: So, Disney's recently filed suit against DeSantis on a number
Speaker 2: of different grounds, contracts clause, due process, the takings clause,
Speaker 2: and what's gotten the most attention our First Amendment claim
Speaker 2: arguing that Florida laws that were passed that desantisis behs
Speaker 2: violate the company's First Amendment rights because they are essentially
Speaker 2: retaliation for Disney expressing a view about another piece of
Speaker 2: legislation House Billed fifteen fifty seven, which is often known
Speaker 2: as the Don't Say Gay Act, about regulating educators in
Speaker 2: their presentation of material about same sex orientation.
Speaker 5: So this is a.
Speaker 2: Claim that essentially that the steps that DeSantis and the
Speaker 2: legislature have taken since Disney did that amount to a
Speaker 2: First Amendment by violation of Disney's right to pre speech.
Speaker 3: Desantra'ss tough talk talk toward Disney is cited throughout the lawsuit,
Speaker 3: including eighteen quotes referring to some form of woke Disney.
Speaker 3: Is that the strongest part of their lawsuit what he
Speaker 3: said himself.
Speaker 2: So, as you know, all of this started more than
Speaker 2: a year ago when Disney first made the statements about
Speaker 2: how Spill fifteen fifty seven, and DeSantis was critical of them,
Speaker 2: saying that they had crossed the line in their criticism
Speaker 2: of the law. And the complaint does include many statements
Speaker 2: by DeSantis and also by legislators in Florida, and just
Speaker 2: to be clear, statements that amounted to just criticism of
Speaker 2: Disney wouldn't create the same issues. The reason the statements
Speaker 2: are important in the context of this lawsuit is that
Speaker 2: they argue to the motive or purpose of the specific
Speaker 2: legal actions that the legislature took with regard to Disney's
Speaker 2: development district there around Orlando. The argument is that these
Speaker 2: statements show that this action was taken not for some
Speaker 2: neutral business reason, but precisely because of and out of
Speaker 2: retaliation for Disney's speech about the Don't Say a bill.
Speaker 3: Randy Fine, a Republican who advanced the bill at that time, said,
Speaker 3: you kicked the hornets nest things come up, and I
Speaker 3: will say this. You got me on one thing. This
Speaker 3: bill does target one company. It targets the Walt Disney Company.
Speaker 3: Is it targeting Walt Disney enough or does that targeting
Speaker 3: have to be in retaliation for what Disney said?
Speaker 2: Well, let's books for a larger question in law of
Speaker 2: how we determine what the motivation or reason for a
Speaker 2: law was, particularly in the context of a multi member
Speaker 2: body like a legislature, and the Supreme Court has spoken
Speaker 2: to that numerous times. One thing cited in the complaint
Speaker 2: is a precedent from equal protection doctrine that suggests you
Speaker 2: have to look at the structure of the law to
Speaker 2: help to wash out its purpose. And here this law
Speaker 2: has passed under circumstances they are very different from the
Speaker 2: customary way that the Florida legislature addresses development districts like this,
Speaker 2: and of course there are about eighteen hundred development districts
Speaker 2: like this around the state. More recently, in the Masterpiece
Speaker 2: cake Shop case involving another part of the First Amendment,
Speaker 2: the free Exercise clause, the court found that an entire
Speaker 2: process had been painted by basically the remarks of one
Speaker 2: or two members of the first governing body that had
Speaker 2: addressed the problem, and suggested that that was enough to
Speaker 2: discover a discriminatory purpose. So they've said a lot of
Speaker 2: different things about this, and there are cases within the
Speaker 2: free speech doctrine that suggests the timing of an action,
Speaker 2: the circumstances of an action, all goes towards the reason
Speaker 2: that it was done.
Speaker 3: Can you explain what Disney would have to prove in
Speaker 3: its lawsuit.
Speaker 2: Yeah, So, what Disney is alleging is that it has
Speaker 2: enjoyed a special relationship with the state of Florida dating
Speaker 2: back to nineteen sixty seven with the creation of the
Speaker 2: Riedy Creek Improvement District, which is the area including the
Speaker 2: Disney Parks, Walt Disney World and all around there that
Speaker 2: enabled Disney to develop that property. But at the same time,
Speaker 2: in post obligations, Disney is responsible for some basic services.
Speaker 2: They are electricity and water so forth, and the improvement
Speaker 2: of it, including you know, hundreds of millions of dollars
Speaker 2: of infrastructure. Disney's argument is that this relationship has been
Speaker 2: changed by the legislature at the santis's behest because of
Speaker 2: Disney's exercise of its First Amendment rights expression of opposition
Speaker 2: to how Spilled fifteen fifty seven. What they need to
Speaker 2: show is that that action was taken because of their
Speaker 2: exercise at First Amendment rights. Essentially, they need to show
Speaker 2: a close enough connection between the actions taken the law's
Speaker 2: pass to dissolve the development district and reincorporate it under
Speaker 2: the power of the Governor's office, between that and the
Speaker 2: reasons that the governor and others had stated contemporaneously in
Speaker 2: lots of different venues for why they were taking that
Speaker 2: kind of action.
Speaker 3: So it seems to a casual observer, and I'll put
Speaker 3: myself in that position that Dissantis has said a lot
Speaker 3: about why he was doing it and about getting back
Speaker 3: at Disney putting disney In's place. Is that enough if
Speaker 3: he wants to put Disney in his place, or does
Speaker 3: it have to be in retaliation for what Disney said?
Speaker 3: I mean, the whole thing started after that law, in
Speaker 3: Disney's opposition to it.
Speaker 5: Yeah.
Speaker 2: So you know, the basic idea in First Amendment law
Speaker 2: is that there are all sorts of reasons that the
Speaker 2: government could reconfigure a special relationship that it has with
Speaker 2: a private citizen. We don't have claims of a right
Speaker 2: to be a public employee or to enjoy a certain
Speaker 2: public benefit, and the government can reconfigure those relationships for
Speaker 2: a lot of different reasons. But what it can't do
Speaker 2: is do that in response to or because of, an
Speaker 2: exercise of protected speech by the beneficiary. So you can't
Speaker 2: take away someone's job as a public university professor because
Speaker 2: they're communists, for example. That's the takeaway from McCarthy era.
Speaker 2: So here we have a much stronger record than we
Speaker 2: usually have of lawmakers taking action in response to an
Speaker 2: exercise of protected expression. A lot of times these sources
Speaker 2: of actions occur kind of sub rosa. You know, a
Speaker 2: government employee expresses support for their bosses political opponent, and
Speaker 2: they're quietly demoted or fired, and the government doesn't want
Speaker 2: to call attention to the fact that that's what it's
Speaker 2: doing here. Part of the reason I think for the
Speaker 2: action was also to be able to tell the action
Speaker 2: to say, we are taking action against woke Disney because
Speaker 2: they're woke Disney. So you know, of cour it's going
Speaker 2: to have to look at all of this, But it's
Speaker 2: a much different kind of record than you often have
Speaker 2: when someone's asserting that adverse action has been taken against
Speaker 2: them because of their exercise of their First Amendment rights.
Speaker 3: The governor spokesman said that his office was unaware of
Speaker 3: any legal right that allows a company to operate its
Speaker 3: own government or maintain special privileges. That's a reference to
Speaker 3: the decades old district that's home to Disney World. But
Speaker 3: isn't that beside the point. That's not really the issue here,
Speaker 3: whether or not Disney has a right to that.
Speaker 2: That's right, it's beside the issue in the First Amendment claim.
Speaker 2: Because although the government could revisit the relationship with Disney
Speaker 2: and the existence and conditions of the Ride Creek Improvement
Speaker 2: District for all sorts of different reasons. The First Amendment
Speaker 2: and First Amendment law holds that they can't do it
Speaker 2: out of response to Disney's exercise of their protective expression,
Speaker 2: the same way that you couldn't fire a government employee
Speaker 2: for speech outside of work on a matter of public concern,
Speaker 2: except in very very narrow circumstances. There's going to be
Speaker 2: a very high bar to meet for that, the same
Speaker 2: way that you couldn't revoke a contract with There's a
Speaker 2: case from the nineties involving a truck service that had
Speaker 2: a contract with the city and they're taken off the
Speaker 2: list of contractors of available towing companies in response to
Speaker 2: some protected speech. That's not okay, right, So the law
Speaker 2: is very clear that even if what we're talking about
Speaker 2: is a special relationship, First Amendment law says you can't
Speaker 2: moby that simply in response to protected expression.
Speaker 3: Desanders and his allies have characterized their actions as you know,
Speaker 3: putting Disney on a level playing field with other themed
Speaker 3: park operators. But Universal Orlando, SeaWorld and Bush Gardens and
Speaker 3: Legoland do not have oversight boards controlled by the governor.
Speaker 3: Does that factor in here?
Speaker 5: Right there?
Speaker 2: Are different aspects to this. One is putting them on
Speaker 2: a level playing field is not permissible if the reason
Speaker 2: that it's being done is because of protected speech. Even
Speaker 2: if it reduces Disney to the same status as others,
Speaker 2: that's not okay if the reason their benefits are being
Speaker 2: taken away is because of exercise of protected expression. But
Speaker 2: beyond that, there are factual questions here as to whether
Speaker 2: it's even true that this action puts Disney in the
Speaker 2: same situation as other similar enterprises, And to the extent
Speaker 2: that the actions taken do not do that, that can
Speaker 2: be itself further evidence that this action was punitive and
Speaker 2: retally tory.
Speaker 3: What kind of defense do you think DeSantis would be
Speaker 3: able to raise in the Disney suit.
Speaker 2: Well, I think there'll be a couple different tacts. One
Speaker 2: will be to try to portray this action is neutral.
Speaker 2: You already see that in some of the statements that
Speaker 2: have been made, and to try to draw on strands
Speaker 2: within the doctrine that are the most hospitable to claims
Speaker 2: that there's some degree of discretion that government actors have.
Speaker 2: There are a lot of precedents that they would have
Speaker 2: to work around in that regard. You know, The other
Speaker 2: thing is just sometimes big picture issues, high profile issues
Speaker 2: like this cause courts to rethink relationships, and they might
Speaker 2: be arguing that the relationship between government provision of benefits
Speaker 2: and the speech of private actors, it's time to rethink that.
Speaker 2: That would be a huge, a huge move. If they
Speaker 2: were to do that, it may be that they'll stick
Speaker 2: more toward arguing on the facts that this is not
Speaker 2: a First Amendment.
Speaker 3: Violation, which discovery Disney has the opportunity to look for
Speaker 3: more kinds of evidence to build its case, like perhaps
Speaker 3: memos between the governor and his staff, things like that.
Speaker 3: I mean, they could depose the governor, right sure, So you.
Speaker 2: Know, the scope of discovery will be determined by the
Speaker 2: district court as this case starts to win its way
Speaker 2: through the system, but it discovery typically does provide more
Speaker 2: insight into the actions and conversations that were happening behind
Speaker 2: the scenes. And part of what Disney might be trying
Speaker 2: to establish here is that there are two different specific
Speaker 2: acts of the legislature that they're taking issue with that
Speaker 2: this is part of a larger effort to cut Disney
Speaker 2: off at the knees in whatever way possible. Kind of
Speaker 2: a larger attempt to think about how do we get
Speaker 2: back at Disney. You know, that would mean that their
Speaker 2: folks not just on what was said in regard to
Speaker 2: these specific bills, but what was said around the bills
Speaker 2: about how are we going to address this new Disney problem?
Speaker 2: And that could mean discovery that has somewhat of a
Speaker 2: wider scope.
Speaker 3: What is Disney seeking?
Speaker 5: If it wins, Disney would like both of the specific
Speaker 5: laws that were passed that affected it to be declared
Speaker 5: unconstitutional and to enjoy the enforcement of those acts.
Speaker 2: So the first of those back last year provided that
Speaker 2: any development district that had been incorporated before the Florida
Speaker 2: Constitution of nineteen sixty eight and had not been reincorporated
Speaker 2: since then would be dissolved as of June of this
Speaker 2: coming year. June of twenty twenty three, there were six
Speaker 2: districts in all of Florida that that was true, of
Speaker 2: Disney being by far the most prominent one. And then
Speaker 2: the secondville was directed specifically at Disney, asserting control over
Speaker 2: their district. So they would like both of those voided
Speaker 2: and essentially would like to be returned to status quo
Speaker 2: ante to the contract terms that had existed for Riedy
Speaker 2: Creek before all this began.
Speaker 3: In conclusion, how strong a case does Disney have.
Speaker 2: On existing case law? Based on the complaint, it seems
Speaker 2: that Disney has a very strong case that adverse action
Speaker 2: was taken against the corporation in response to protected expressions
Speaker 2: that was critical of the existing government. And Disney seems
Speaker 2: to have an unusually thick record of statements already public
Speaker 2: statements to help establish that.
Speaker 3: Thanks so much, Leslie. That's Leslie Kendrick, director of the
Speaker 3: Center for the First Amendment at the University of Virginia
Speaker 3: Law School. An unusual twist, the North Carolina Supreme Court
Speaker 3: reversed itself in a redistricting ruling that could scuttle a
Speaker 3: major US Supreme Court elections case. It's a highly watched
Speaker 3: case involving the so called independent state legislature theory, which
Speaker 3: would ouse state judges and other officials from long standing
Speaker 3: roles in shaping the rules for federal elections. But now
Speaker 3: the North Carolina Supreme Court has overruled its twenty twenty
Speaker 3: two decision that the Supreme Court has been reviewing. Why
Speaker 3: did it reverse itself because in the last year's election,
Speaker 3: Republicans gained control of the state's highest court, and they've
Speaker 3: backed a Republican drawn congressional map, reversing the decision that
Speaker 3: the Democratic majority had made in twenty twenty two. Here
Speaker 3: to help us sort it all out is elections law
Speaker 3: expert Richard Brefalt, a professor at Columbia Law School. How
Speaker 3: rare is it and stunning to see a state supreme
Speaker 3: court reverse itself after an election that changed the political
Speaker 3: mail makeup of the court.
Speaker 6: It is very rare, and it is very stunning for
Speaker 6: a court to do this when nothing else changed. And
Speaker 6: you sometimes see courts changing their positions on something when
Speaker 6: maybe the new facts developed, or maybe a new background
Speaker 6: law changed or something. But this is literally within the
Speaker 6: space of a few months. The North Carolina Supreme Court
Speaker 6: reversed itself on really sort of two major voting issues,
Speaker 6: the Jerrymannering case, but also a case involving a statute
Speaker 6: involving voter id These were decisions that the court had
Speaker 6: basically made or reaffirmed in December of twenty twenty two,
Speaker 6: and now in April of twenty twenty three, they've changed
Speaker 6: their minds because the membership of the court changed.
Speaker 3: Let's talk first about the decision on the congressional maps.
Speaker 3: What did the court say did explain why it was
Speaker 3: reversing itself.
Speaker 6: The Court basically says, as the US Supreme Court had said,
Speaker 6: that partisan jerrymandering is non justiciabal. That is, there's nothing
Speaker 6: in the state constitution that addresses it, and there are
Speaker 6: no standards that the court could develop that would allow
Speaker 6: them to consistently review and strike down plans as jerry
Speaker 6: manders without making policy judgments inappropriate for courts. The Court
Speaker 6: very much modeled itself after what the US Supreme Court
Speaker 6: had done in the case, but also came out of
Speaker 6: North Carolina case called Rucho US Supreme Court decided four
Speaker 6: years ago. Now, this case came up under the North
Speaker 6: Carolina Constitution and its own particular provisions dealing with elections
Speaker 6: and free speech and equal protection. But the Court said,
Speaker 6: we think that the US Supreme Court, in its interpretation
Speaker 6: of the US Constitution, basically said the standard that we
Speaker 6: should follow in interpreting our own constitution on these issues,
Speaker 6: and that the US Supreme Court was right to say
Speaker 6: that they were not standards that a court could enforce. Here,
Speaker 6: we don't think there were standards that a court could
Speaker 6: enforce here under the state Constitution.
Speaker 3: Before we go any further explain the situation with the maps,
Speaker 3: how the court's ruling changed the maps.
Speaker 6: What had happened is, of course, the North Carolina Legislature
Speaker 6: had passed maps that dealt with both the state legislature
Speaker 6: and the congressional delegation for after the twenty twenty census.
Speaker 6: Those were challenged in both federal court and also in
Speaker 6: the North Carolina courts. The North Carolina Courts concluded in
Speaker 6: the first go round that these were partisan gerrymanders in
Speaker 6: violation of the state constitution. They concluded that the state
Speaker 6: constitution prohibited that They basically sent it back to the legislature,
Speaker 6: but they also said that we were appointing judges to
Speaker 6: be special masters to review the plans of the legislature produced.
Speaker 6: The special masters appointed experts, and ultimately, over the course
Speaker 6: of two years twenty twenty one twenty twenty two, new
Speaker 6: maps were approved for the North Carolina Legislature and for
Speaker 6: the North Carolina Congressional Delegation. The North Carolina Legislature was
Speaker 6: still dominated by Republicans under the new mass as well
Speaker 6: as the old maps, but the North Carolina Congressional delegation.
Speaker 6: In the elections that were held in twenty twenty two
Speaker 6: under the court ordered maps, I think basically split evenly.
Speaker 6: I think it was seven Republicans seven Democrats, whereas people
Speaker 6: basically thought that under the map that was initially adopted
Speaker 6: by the legislature likely to be ten Republicans.
Speaker 3: Does this decision give Republican lawmakers basically free reign to
Speaker 3: draw the state legislative and congressional maps as they want to?
Speaker 6: Pretty much. I mean, they would still have to abide
Speaker 6: by one person, one vote, and they would still have
Speaker 6: to avoid anything that could be accused of being intentional
Speaker 6: racial discrimination. But in terms of partisan gerrymandering, yes, there
Speaker 6: would be no constraint.
Speaker 3: Does this case advance that so called independent state legislature theory.
Speaker 6: It kind of eliminates the problem, which is The independent
Speaker 6: state legislature theory was a theory of federal constitutional law,
Speaker 6: with the idea being that under the federal constitution, only
Speaker 6: a state legislature can draw up congressional districts. And the
Speaker 6: North Carolina Supreme Court's decision that said that under the
Speaker 6: state constitution, the legislature had violated the state constitution even
Speaker 6: with respect to the congressional districts that is currently actually
Speaker 6: before the US Supreme Court on a challenge that says
Speaker 6: a court applying its state constitution cannot take this away
Speaker 6: from the state legislature. So I guess you could say
Speaker 6: what the North Carolina Court just did is consistent with
Speaker 6: the independent state legislature theory, but it wasn't required by it,
Speaker 6: because the North Carolina Supreme Court is saying, under our constitution,
Speaker 6: North Carolina's constitution, the courts just have no role here.
Speaker 6: It be interesting to see what the US Supreme Court
Speaker 6: does now, But right now it does not appear that
Speaker 6: they have a case that they can review. They do
Speaker 6: have the case. They did hear oral argument on this
Speaker 6: question of whether or not the North Carolina Supreme Court,
Speaker 6: the old North Carolina Supreme Court violated the US Constitution
Speaker 6: by knocking down the maps of state legislature had drawn.
Speaker 6: But now the current North Carolina stren Court says they've
Speaker 6: vacated that decision, the one that's on review before the
Speaker 6: Supreme Court. So it's not clear what the US Supreme
Speaker 6: Court will do now, whether they will continue to make
Speaker 6: a decision on the theory that this is a question
Speaker 6: that could come up again in another state, or whether
Speaker 6: they will conclude that they really don't have a case
Speaker 6: in front of them anymore.
Speaker 3: If they decide not. If the Supreme Court decides not
Speaker 3: to hear the case, does that send a bad message
Speaker 3: to state courts that you can avoid having the Supreme
Speaker 3: Court review.
Speaker 6: I don't. I don't know that it sends a message
Speaker 6: one way or the other. I think it just postpones
Speaker 6: ultimate decision. There are state courts that continuing to do
Speaker 6: this now. The Alaska Supreme Court just the week before
Speaker 6: concluded that jerry mandering violates the Alaska Constitution. Of course,
Speaker 6: Alaska has only one congressional seat, so there is no
Speaker 6: federal constitutional issue with respect to drawing the congressional line,
Speaker 6: so that's not really a factor. But the Alaska Supreme
Speaker 6: Court now joins a handful of other state supreme courts
Speaker 6: and saying that jerry mandering violates their constitution. North Carolina
Speaker 6: now has just withdrawn from that group and basically says
Speaker 6: that because there is no specific provision in the North
Speaker 6: Carolina Constitution that addresses jerry mandering, courts just simply have
Speaker 6: no right to address it.
Speaker 3: The majority opinion said this case is not a bad
Speaker 3: part is in Paula, but rather about realigning the proper
Speaker 3: roles of the judicial and legislative branches. Did its opinion
Speaker 3: support that?
Speaker 6: The reasoning was pretty straightforward And it's pretty much the
Speaker 6: same reasoning that the US Supreme Court gave in its
Speaker 6: decision not to address partisan juryman ring in a case
Speaker 6: decided four years ago called Rucho. So you know, on
Speaker 6: its face, it's kind of a usual decision. I mean,
Speaker 6: what makes it seem partisan is it was the result
Speaker 6: of a partisan election in which, in fact, two Democratic
Speaker 6: judges on the North Carolina Supreme Court were replaced by
Speaker 6: two Republican judges, and that led to a change in
Speaker 6: the Court's approach to an important constitutional question.
Speaker 3: Morvy Harper, which you mentioned is before the Supreme Court,
Speaker 3: and a lot of people were looking at it, some
Speaker 3: people with fear that the Supreme Court would endorse this
Speaker 3: independent state legislature theory. Do you think that the Supreme
Speaker 3: Court will take this opportunity to avoid deciding that case.
Speaker 6: It's hard to tell, but it's kind of hard to
Speaker 6: see how they were able to go forward with the case.
Speaker 6: The North Carolina Supreme Court says they have vacated the
Speaker 6: decision that is being challenged in the Supreme Court. So
Speaker 6: it's not clear what there is the Supreme Court to do.
Speaker 6: It's possible the Court will say, well, we've heard the
Speaker 6: arguments and this kind of issue make them up in
Speaker 6: another state, and so we will make a decision to
Speaker 6: give guidance in other states. It's also possible that they'll
Speaker 6: wait for a case that will come from another state
Speaker 6: which is still a live case, and you know, holds
Speaker 6: off and deciding this question until it comes back to them.
Speaker 3: Let's talk about the other decisions, and one was about
Speaker 3: the voter ID laws that North Carolina did a reversalon.
Speaker 6: Yeah, so North Carolina has been sort of struggling with
Speaker 6: this question of what kind of voter ID they can
Speaker 6: require voters to have. But I think the question of
Speaker 6: whether or not voters can be required to present ID
Speaker 6: was settled by the US Supreme Court about fifteen years ago.
Speaker 6: But there's been a lot of fighting as to exactly
Speaker 6: what kind of ID they can require, how limited can
Speaker 6: it be if it's a photo Id's forces count? And
Speaker 6: what do you do with people who don't have ID?
Speaker 6: And how do you help you know? What alternatives do
Speaker 6: you provide for people who don't have ID. The North
Speaker 6: Carolina legislature passed a law in the early twenty tens
Speaker 6: that the courts struck down on the theory that it
Speaker 6: was racially motivated, that the law was really purposely designed
Speaker 6: in terms of the specific kinds of IDA that counted
Speaker 6: and didn't count, to have a particular impact on black voters,
Speaker 6: and so that was struck down. The state then went
Speaker 6: back and actually the voters in North Carolina poved a
Speaker 6: const social amendment authorizing voter ideal, although again they didn't
Speaker 6: spell out exactly what kind of voter ID would count.
Speaker 6: The legislature then went and passed another voter ID law,
Speaker 6: which was from the perspective of the legislature more generous,
Speaker 6: you know, had more sources of ID. They wouldcount moral
Speaker 6: alternatives who didn't have ID. It was still challenged as
Speaker 6: having just racial impact. That's the case that was going
Speaker 6: through the North Carolina court system. I think the lowest
Speaker 6: court said it was fine. Each mediate court of appeal
Speaker 6: said no, we think that for a disparate racial impact.
Speaker 6: The North Countina Supreme Court said no, we think it's fine.
Speaker 6: And in the course of doing it, they basically to
Speaker 6: some extent toughened up on the standard, at least in
Speaker 6: North Carolina that voters would have to show actually any
Speaker 6: point that would have to show to show something is
Speaker 6: racially discriminatory, and they really basically kind of heighten the
Speaker 6: standard of proving that something was adopted with discriminatory intent,
Speaker 6: and they basically said, there's just the fact that an
Speaker 6: earlier version of this was adopted for a discriminatory purpose,
Speaker 6: and the fact that North Carolina has had a long
Speaker 6: history of racial discrimination that's kind of irrelevant to reviewing
Speaker 6: this particular law.
Speaker 3: And in a triple really a triple blow here, it
Speaker 3: reversed a lower court ruling about the right to vote
Speaker 3: for those who are convicted of felonies.
Speaker 6: That's right. So again many states deny the right to
Speaker 6: vote if those are of a felony. But there are
Speaker 6: great dations in terms of, you know, who's actually barred
Speaker 6: from voting. Most states would bar somebody who's currently serving
Speaker 6: their sentence, but the question has come up with what
Speaker 6: if somebody is on parole or has been released on
Speaker 6: probation and is actually not is still within you know,
Speaker 6: within the court system, but is not actually in prison.
Speaker 6: And the lower courts in North Carolina had basically said
Speaker 6: that the North Carolina law of banning felons from voting
Speaker 6: did not apply to people who are no longer incarcerated.
Speaker 6: The state Supreme Court reversed that and said it would
Speaker 6: continue to apply to people who are on probation or
Speaker 6: people who are on parole until the endpoint of their sentences.
Speaker 3: Thanks so much, rich It's always a pleasure to have
Speaker 3: you on. That's Professor Richard Brfald of Columbia Law School.
Speaker 3: And that's it for this edition of the Bloomberg Law Show.
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