Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: I'm not tap of nine names, along with phone numbers
Speaker 2: are some of the wealthiest and most famous people in
Speaker 2: the world. I put the numbers in my phone and
Speaker 2: composed a simple message, There'd be a game tomorrow night.
Speaker 2: At the Cobra launch, there was a ten thousand dollars
Speaker 2: buy in. Two weeks later, around two am, there was
Speaker 2: a pot that was up to one point three million
Speaker 2: pre flop with five players still in the game belonged
Speaker 2: to Player X. People wanted to say they played with
Speaker 2: them the same way they wanted to say they wrote
Speaker 2: on air Force one.
Speaker 3: Do you understand that you were charged in count twenty
Speaker 3: with operating an illegal gambling business.
Speaker 1: The indictment in the NBA gambling scandal sounds a lot
Speaker 1: like the movie Molly's Game High Stakes Poker, where celebrities
Speaker 1: called face cards draw in unsuspecting rich players called phish
Speaker 1: who dropped big money in illegal private games by organized crime.
Speaker 1: Federal prosecutors alleged that Portland Trailblazers head coach Chauncey Billups
Speaker 1: and former player Damon Jones were the face cards who
Speaker 1: were on the so called cheating team, luring big money
Speaker 1: players into rig poker games where a sophisticated technology like
Speaker 1: hidden cameras in poker chip trays, rigged card shuffling machines,
Speaker 1: and even X ray equipment built into the tables helped
Speaker 1: them cheat the fish out of millions of dollars. Almost
Speaker 1: thirty other people are charged in the poker scheme, including
Speaker 1: members of the Banano, Gambino, and Genevici crime families with
Speaker 1: expected colorful nicknames like Flappy the Wrestler, black Tony, Big Bruce,
Speaker 1: and Pooky. My guest is former federal prosecutor Joshua F. Talis,
Speaker 1: a partner at Palace Partners. He prosecuted the real life
Speaker 1: Molly Bloom and the others involved in that one hundred
Speaker 1: million dollar gambling ring that was fixtionalized in the movie
Speaker 1: Molly's Game. Josh, the high stakes poker games in this
Speaker 1: indictment look a lot like those in Molly's Game and
Speaker 1: even use the same terminology.
Speaker 4: Yeah, I mean, it's funny. When I was an associate
Speaker 4: at Walktell Lefton, I did an independent investigation for the
Speaker 4: NBA that cum it intid called the Pedowitz Report, which
Speaker 4: is when a referee named Tim Donneghe was indicted in
Speaker 4: the Eastern District for being part of a scheme with
Speaker 4: LCN where the allegations were that he was throwing games
Speaker 4: or betting on games. And then you fast forward to
Speaker 4: Molly's Game, which is one of the first big cases
Speaker 4: I worked on when I was a prosecutor, where they
Speaker 4: are running illegal gambling businesses, including poker rooms, and you
Speaker 4: sort of mushed the two together, and then you have
Speaker 4: these new Eastern District indictments.
Speaker 1: And tell us what the indictment says happened with these
Speaker 1: poker games.
Speaker 4: So there are two crimes being charged. The first one
Speaker 4: is operating in illegal gambling business. So it's the business
Speaker 4: aspect of it, which is generally that what's called the how,
Speaker 4: so that people who are sponsoring the game are taking
Speaker 4: a rake or percentage of the pot or the money
Speaker 4: on the table. So that's where the sponsors or the
Speaker 4: people running the game are profiting, regardless of what happens
Speaker 4: with the cards. They're just taking a percentage of the money.
Speaker 4: That's what makes it illegal in New York State at least.
Speaker 1: So you can play in a poker game for money
Speaker 1: and that's not illegal.
Speaker 4: If the two of us ever had the pleasure of
Speaker 4: sitting down to play poker with a couple other people,
Speaker 4: that's totally okay.
Speaker 1: But in this case, they're saying that the game was
Speaker 1: rigged so that the so called fish would lose.
Speaker 2: Right.
Speaker 4: That's like the added layer of it. It's sort of
Speaker 4: like a fraud piece, which is the game wasn't even fair.
Speaker 4: The card shufflers were rigged. The tables had some camera
Speaker 4: set up that allowed them to see the cards, the
Speaker 4: cards were marked in some ways, people were wearing some
Speaker 4: sort of contact lens or glasses. It wasn't a fair
Speaker 4: game to begin with. In addition to being an illegal business.
Speaker 1: Phillips and Jones were referred to as face cards. In
Speaker 1: the indictment, it said that everyone at the table who
Speaker 1: wasn't a target was in on the scam. They were
Speaker 1: charged with wire fraud and money laundering conspiracy, but were
Speaker 1: in charge with operating an illegal gambling business.
Speaker 4: I mean, generally the fraud and money laundering charges are
Speaker 4: more serious than the gambling charges, or at least they
Speaker 4: expose an individual to more jail time potentially.
Speaker 1: Can you tell how strong the case is against them?
Speaker 4: It's always hard to tell when you read an indictment.
Speaker 4: An indictment, it makes it sound like it's obvious. It's
Speaker 4: a great case. I mean, if true. You know, the
Speaker 4: government always thinks it holds the best hand. That's why
Speaker 4: they brought the case. I'm sure there's another side of
Speaker 4: the story. Whether it holds up, I don't know.
Speaker 1: Chauncey Billups attorney said, to believe that Chauncey Billups did
Speaker 1: with the federal government is accusing him of as to
Speaker 1: believe that he'd risk his Hall of Fame, legacy, his reputation,
Speaker 1: and his freedom.
Speaker 4: Well, that's exactly the point, which is, these guys make
Speaker 4: a lot of money from their day job. Why are
Speaker 4: would they risk it all here, which, by the way,
Speaker 4: makes good sense and has so on a jury appeal.
Speaker 1: If they actually took part in the game, what kind
Speaker 1: of defenses could they raise.
Speaker 4: It's always hard to tell from the diamy exactly what's
Speaker 4: going on, but I think part of it may be. Listen,
Speaker 4: just being there doesn't mean they were part of it, right.
Speaker 4: They may be playing cards, they may be betting, they
Speaker 4: may be doing whatever. That doesn't mean they're in on it,
Speaker 4: which happens all the time, right, they may have been
Speaker 4: participating in what was it otherwise the illegal game, and
Speaker 4: the promoters may have been using that as a way
Speaker 4: to draw people in, but that doesn't mean that they
Speaker 4: were in on the whole scheme.
Speaker 1: So the charge is that from April of twenty nineteen
Speaker 1: to the present, the rick poker scheme caused losses to
Speaker 1: the victims of seven million dollars. That doesn't seem a
Speaker 1: lot over six years. And when the director of the
Speaker 1: FBI said the fraud is mind boggling.
Speaker 4: I mean, seven million dollars is still a lot. But
Speaker 4: I agree with you. Given the amount of money that
Speaker 4: flies around in these games, I wouldn't call it mind bottling.
Speaker 4: I mean these high stakes poker games, there can be
Speaker 4: millions of dollars changing hands at a night.
Speaker 1: To establish the money laundering and wire fraud, what do
Speaker 1: the prosecutors have to prove.
Speaker 4: The way to think of frauds is when someone makes
Speaker 4: a misrepresentation to someone to get them to turn over
Speaker 4: money and they lose money as a result. You have
Speaker 4: to make a misstatement to someone with the intent that
Speaker 4: you're defrauding them. And then laundering money is either you
Speaker 4: are moving money that was derived from a criminal scheme,
Speaker 4: or you are out of the scheme, or you're moving
Speaker 4: money in to promote the scheme. Those are like the
Speaker 4: basic types of money laundering, but you have to have
Speaker 4: the fraud to prove the money laundering. Generally, like the
Speaker 4: fraud is sort of a prerequisite.
Speaker 1: There are more than thirty defendants here. How do you
Speaker 1: try a case like this? I assume separate trials, But
Speaker 1: how is that decided?
Speaker 4: You can't try thirty people at once. It's not permitted.
Speaker 4: It's also just practically impossible. What generally happens in a
Speaker 4: case like this where this many people charged is those
Speaker 4: that sort of don't have much of a defense or
Speaker 4: they're not charging with the very serious client, they may
Speaker 4: just plead out and it could reduce into a smaller
Speaker 4: group of people if they choose to go to trial.
Speaker 4: That's what happened in the Mally's Game case. We indicted
Speaker 4: I think thirty three people where there were three separate
Speaker 4: racketeering schemes. In the end, we'd never had a trial
Speaker 4: because everyone basically pled guilty.
Speaker 1: And then came the book and the movie. Do you
Speaker 1: think that the FBI pursued this investigation for so long
Speaker 1: because of the alleged mafia connections.
Speaker 4: I mean, when you have the mafia, when you have
Speaker 4: sports betting, when you have the integrity of the game
Speaker 4: at stake, obviously that interests a lot of parties. It's
Speaker 4: not necessarily clear to me that the f I was
Speaker 4: looking at this since twenty nineteen. It may be that
Speaker 4: as the investigation went on they learned about conduct that
Speaker 4: proceeded when they started the investigation. So that doesn't mean
Speaker 4: that they couldn't charge it if they had started the
Speaker 4: investigation twenty twenty four and then they learn Actually all
Speaker 4: this is singing on from twenty nineteen.
Speaker 1: And tell us about the second indictment involving sports betting,
Speaker 1: where Miami Heat guard Terry Rosier was charged.
Speaker 4: Sure, I mean, I think that's the one that goes
Speaker 4: the integrity of the game. I kind of view that
Speaker 4: as the more serious of the indictments. It is that
Speaker 4: the NBA has a code of conduct, and one of
Speaker 4: the provisions of the code of conduct is that there's
Speaker 4: confidential information or non public information, and in this case,
Speaker 4: it would be which players are injured, who's going to
Speaker 4: sit out, who may not play, and that information was
Speaker 4: being leaked and then used by people to make prop bets,
Speaker 4: and a prop bet is like a proposition bet, where
Speaker 4: you can not necessarily even bet on who's going to
Speaker 4: win the game, but how a particular player will perform.
Speaker 4: And some of the bets were saying that someone would
Speaker 4: play or not player score certain number of points, and
Speaker 4: some of them were just bets on the outcome of
Speaker 4: the game. But here it's a kin to insider trading.
Speaker 4: But I don't want to suggest it is insider trading
Speaker 4: because it's a wire fraud case. This isn't securities fraud.
Speaker 4: But the gist is that there was non public information
Speaker 4: about NBA players that was used to bet and that
Speaker 4: violated the code of conduct.
Speaker 5: Well.
Speaker 1: In hyping up the indictment, the director of the FBI
Speaker 1: cash Ptail called it the insider trading saga for the NBA.
Speaker 1: One thing about Rosier, the NBA cleared him after an investigation,
Speaker 1: didn't they.
Speaker 4: I think the issue is the devil's in the details.
Speaker 4: I mean my recollection of Rozier is that he may
Speaker 4: have texted one of the other members of the scheme
Speaker 4: saying that he was going to leave the game early,
Speaker 4: and there was discussion about bets being placed, which doesn't
Speaker 4: necessarily mean he wasn't hurt, But what it means is
Speaker 4: that he was telling someone who wasn't supposed to know
Speaker 4: that he was injured or that he wasn't going to
Speaker 4: play the whole game. The NBA is very good at this,
Speaker 4: at policing betting and the integrity the game. Adam Silvers
Speaker 4: is amazing as the commissioner, and they take this seriously.
Speaker 4: The question is, you know, did they have access to
Speaker 4: everything that the FBI had access to. The NBA doesn't
Speaker 4: have the powers of the FBI.
Speaker 1: These are two separate indictments, separate schemes that involved thirty
Speaker 1: four defendants, only three connected to the NBA. Yet it
Speaker 1: was announced with such fanfare. About twenty people crowded on
Speaker 1: the stage, including the director of the FBI and New
Speaker 1: York City's police commissioner. The gations date back years, and
Speaker 1: yet the announcements were made the opening week of the
Speaker 1: NBA season. This seems like a lot of hype.
Speaker 4: Oh sure, that's definitely what the government's doing. They want
Speaker 4: to amplify the press impact of the indictments and the
Speaker 4: extent that it confuses what the NBA employees players were doing.
Speaker 4: It just makes it more pressworthy. Obviously, it matters if
Speaker 4: someone is actually a playing for the NBA or working
Speaker 4: as a coach at the time they do certain of
Speaker 4: the conduct. That's why it would matter in terms of
Speaker 4: leaking the information. And then to extend that these guys
Speaker 4: were doing something on their own time involving poker, it's
Speaker 4: kind of irrelevant. I don't think this is the type
Speaker 4: of investigation that you needed to be announced on the
Speaker 4: eve of you know, the timing was a little odd
Speaker 4: when the FBI director shows up for an announcement of
Speaker 4: an investigation like this. Again, criminal cases are serious, but
Speaker 4: you know, this isn't like they broke the biggest insider
Speaker 4: trading case ever, or this is a big terrorism case
Speaker 4: where the FBI director may show up. It's a big
Speaker 4: case and that it goes to the integrity of the game,
Speaker 4: but it's kind of just a run of the no
Speaker 4: gambling case in the poker world.
Speaker 1: We'll see how many defendants are left when and if
Speaker 1: this goes to trial. Thanks so much, josh that's former
Speaker 1: federal prosecutor Joshua F. Talis of Palace Partners. President Donald
Speaker 1: Trump has once again suggested he'd like to extend his
Speaker 1: stay at sixteen hundred Pennsylvania Avenue for a third term.
Speaker 2: I would love to do it. I have my best numbers.
Speaker 6: Ever.
Speaker 1: Trump has flirted with the idea of a third term before,
Speaker 1: for example, in March, just a little over a month
Speaker 1: into his second term.
Speaker 5: They do say there's a way you can do it,
Speaker 5: but I don't know about that.
Speaker 1: I'm just telling you I have had more people say
Speaker 1: please run again, but this time. There is also those
Speaker 1: Trump twenty twenty eight red baseball caps that set on
Speaker 1: his desk during a meeting with congressional leaders this month.
Speaker 1: There's the thing tank called Third Term Project. And there's
Speaker 1: even a Justice Department lawyer in six circuit oral arguments
Speaker 1: referring to a new administration quote three years in the
Speaker 1: future or seven years in the future. And of course
Speaker 1: Trump has not explicitly ruled out a third term. Joining
Speaker 1: me is constitutional law expert David super, a professor at
Speaker 1: Georgetown Law. So, David, I reread the twenty second Amendment.
Speaker 1: It plainly states that no one can be elected president
Speaker 1: more than twice. I mean, how plain is it? How
Speaker 1: clear is it?
Speaker 6: It could not be clearer, and it could not be plainer.
Speaker 6: It's short it's sweet. It's to the point not allowing
Speaker 6: anyone to run for a third term.
Speaker 1: Now, there are different kinds of scenarios out there that
Speaker 1: Trump allies have put forward. One of the arguments is
Speaker 1: that the twenty second Amendment only explicitly bars a person
Speaker 1: from being elected more than two presidential terms, but doesn't
Speaker 1: say anything about serving a third term. So the theory
Speaker 1: is that Trump could run as vice president and then
Speaker 1: have whatever lucky candidate for president it is resign and
Speaker 1: then Trump takes the White House.
Speaker 6: That doesn't work either, because of the twelfth Amendment, which
Speaker 6: says that any candidate for vice president must be constitutionally
Speaker 6: qualified to serve as president, which mister Trump isn't.
Speaker 1: In fact, Trump himself sort of dismissed that. He said,
Speaker 1: I'd be allowed to do that, but I think people
Speaker 1: wouldn't like that. It's too cute. Also, didn't Vladimir Putin
Speaker 1: sort of do something like that years ago where he
Speaker 1: put a deputy in to serve in his place for
Speaker 1: one term and then he took over.
Speaker 6: It's disappointing that this country is taking its political lessons
Speaker 6: from Russia these days, But yes, what Putin did was
Speaker 6: stepped down from being president for one term and let
Speaker 6: a trusted ally of his serve as a figurehead president
Speaker 6: while Putin ran things as Prime minister, then came back
Speaker 6: and became president again. A few problems with that. One
Speaker 6: is it's too cute. Two is we don't have prime
Speaker 6: ministerships here, so there's no obvious alternate role for Trump
Speaker 6: to go into to serve it. Three, Russia's limit is
Speaker 6: on consecutive terms. The twenty second Amendment is a limit
Speaker 6: on total terms. And four, why are we taking our
Speaker 6: political lessons from Russia?
Speaker 1: And just explain to get rid of the twenty second Amendment?
Speaker 1: What would it take?
Speaker 6: Repealing the twenty second Amendment would take a two thirds
Speaker 6: vote from both chambers of Congress and ratification by three
Speaker 6: quarters of the states, which is thirty eight states. So
Speaker 6: you would need ratification from states like Connecticut and Massachusetts. Somehow,
Speaker 6: I don't think those states are going to be working
Speaker 6: very hard to get mister Trump a third term.
Speaker 1: Yeah, even how Speaker Mike Johnson dismissed repealing the twenty
Speaker 1: second Amendment.
Speaker 6: I don't see a way to amend the constitution because
Speaker 6: it takes about ten years to do that.
Speaker 1: Speaking about the Speaker of the House. Yet another theory
Speaker 1: is that Trump could become the Speaker of the House,
Speaker 1: which apparently posits that it's easy to be elected Speaker
Speaker 1: of the House, and then if both the president and
Speaker 1: vice president, who would have to be Trump Ally's, resign
Speaker 1: he could take over.
Speaker 5: Yeah.
Speaker 6: I keep sending in my resume to be Speaker of
Speaker 6: the House and nothing ever happens. I'm not sure what
Speaker 6: the problem is in eery that could be said to
Speaker 6: be valid. The Speaker of the House is elected, and
Speaker 6: if the purpose of electing mister Trumps speaker is to
Speaker 6: make him president, I think there's an argument that that
Speaker 6: would also violate the twenty second Amendment of the Constitution,
Speaker 6: But it certainly puts a thumb in the eye of
Speaker 6: popular intent. We had had a four term president, President Roosevelt.
Speaker 6: The country across all political lines concluded that that was
Speaker 6: too much power for any individual to have, that it
Speaker 6: resembled authoritarian countries too much, and we decided we didn't
Speaker 6: want to do that anymore. And this is yet again
Speaker 6: mister Trump and his allies disregarding the people's choice through
Speaker 6: their constitution.
Speaker 1: Have you heard any other theories of how he could
Speaker 1: become president for a third.
Speaker 6: Term and then the other one. I guess it's very straightforward.
Speaker 6: Just do it and see if anyone stops you. And
Speaker 6: this Supreme Court has been willing to avoid a number
Speaker 6: of constitutional violations and most obviously declining to consider or
Speaker 6: allow anyone else to consider whether mister Trump was disqualified
Speaker 6: under the insurrection clause of the fourteenth Amendment. He may
Speaker 6: just take the position that he can run, he can
Speaker 6: do it, and he doesn't think anyone will stop him.
Speaker 1: Is this speculation hopeful in a way because Trump is
Speaker 1: still talking about legal ways to stay in office and
Speaker 1: not suggesting that he would just refuse to leave.
Speaker 6: Well, there has been talk in the past that he
Speaker 6: might do something like what you're suggesting. He made some
Speaker 6: comments about that in twenty twenty, which I hope were
Speaker 6: not taken very seriously. Certainly didn't deserve to be taken
Speaker 6: very seriously. But some of his supporters have suggested that
Speaker 6: he could somehow declare some kind of a state of
Speaker 6: emergency someone called it a sovereignty crisis and suspend elections
Speaker 6: on that basis. There's no authority whatsoever in the constitution
Speaker 6: for that. If he were to do that, he would
Speaker 6: effectively be repudiating the Constitution.
Speaker 1: And you think that the Supreme Court might not even
Speaker 1: step in if he decides to run for a third term.
Speaker 6: No, I think they would. I think this Court is
Speaker 6: hoping against hope that he won't force their hand by
Speaker 6: doing something completely delegitimizing. But I don't believe that there
Speaker 6: are five justices who have so totally lost faith in
Speaker 6: the country that they would put up with that.
Speaker 1: I mean, it could be he's trolling the Democrats, he's
Speaker 1: entertaining his base, or he doesn't want to look like
Speaker 1: a lame duck.
Speaker 6: Yes, I think so. Presidents have often had a lot
Speaker 6: of trouble in their second terms in office. President Reagan
Speaker 6: was unstoppable in his first term and stumbled quite badly
Speaker 6: in his second. President Bush was very strong in his
Speaker 6: first and got the Great Recession and Hurricane Katrina in
Speaker 6: the second. President Obama lost all kinds of esteem by
Speaker 6: his second term. And I think President Trump doesn't want
Speaker 6: to follow that example.
Speaker 1: And was it President Reagan who suggested getting rid of
Speaker 1: the twenty second Amendment.
Speaker 6: He did, I'm not sure how seriously. A number of
Speaker 6: presidents get fond of the job and start thinking that
Speaker 6: the twenty second Amendment is a bad idea, but I
Speaker 6: don't think anyone took him very seriously or move very
Speaker 6: far with it, in part because President Reagan was already
Speaker 6: quite a fanst age. Of course, President Trump is much older.
Speaker 1: And Trump would be the oldest president in history by
Speaker 1: the time he leaves office. David. In the last nine months,
Speaker 1: Trump has already done so much to expand his presidential authority,
Speaker 1: and he's used the specter of national emergencies over and
Speaker 1: over again, for example, to impose tariffs, to send troops
Speaker 1: into democratic led cities, to crack down on illegal immigration,
Speaker 1: and on and on. He declared eight national emergencies in
Speaker 1: his first hundred days. Has any other president during peacetime
Speaker 1: exercised such.
Speaker 6: Power now, there's nothing remotely close to this. Richard Dixon
Speaker 6: was accused, with some justification of trying to build an
Speaker 6: imperial presidency. But I can't think of anything that mister
Speaker 6: Nixon tried to do that mister Trump hasn't done much
Speaker 6: more of. And I can think of many things that
Speaker 6: mister Trump has done that mister Nixon never dreamed of doing.
Speaker 6: President Lincoln used a great many powers during the Civil War,
Speaker 6: some of which may have exceeded his constitutional authority, not
Speaker 6: on the level of what we're seeing here.
Speaker 1: Of the Supreme Court cases coming up that are going
Speaker 1: to test presidential authority, is the Tariff's case the most
Speaker 1: signif again, or is there another one that's more significant.
Speaker 6: The CAF's case is extremely significant because the Supreme Court
Speaker 6: is filled with self defined textualists, and it's almost impossible
Speaker 6: to find anything like the powers the President is claiming
Speaker 6: in the text of the statute he is citing. So
Speaker 6: the Court is going to have to either abandon any
Speaker 6: pretense of textualism or limit the president's authority very dramatically.
Speaker 5: There.
Speaker 6: The other case that I'm watching very closely is the
Speaker 6: case involving doctor Cook in the Federal Reserve, because the
Speaker 6: Supreme Court basically told President Trump, you can fire anyone
Speaker 6: except a Federal Reserve governor, and he turned around and
Speaker 6: fired a Federal Reserve governor. If the Supreme Court is
Speaker 6: willing to let him do that, then they are effectively
Speaker 6: allowing themselves to be humiliated by the President, and we
Speaker 6: can't really expect much of them going forward.
Speaker 1: What do you think of Trump saying he's going to
Speaker 1: attend the Supreme Court oral arguments on the tariffs.
Speaker 6: I think oral arguments are fascinating and you think for
Speaker 6: a good time. I think with most courts, when a
Speaker 6: party speeaks to pressure them, the court feels considerable pressure
Speaker 6: to demonstrate its independence. If I were a lawyer at
Speaker 6: the White House or Justice Department, I would beg him
Speaker 6: not to do that.
Speaker 1: Well, we'll find out next Wednesday if Trump is in
Speaker 1: the audience for the oral arguments or not. So he's
Speaker 1: great to talk to you, David, Thanks so much. That's
Speaker 1: Professor David Super of Georgetown Law. Coming up next on
Speaker 1: the Bloomberg Law Show. The latest salvo in the national
Speaker 1: redistricting fight is coming from New York City. I'm June
Speaker 1: Grosso and you're listening to Bloomberg. President Donald Trump's push
Speaker 1: for Republicans to redraw US House districts ahead of next
Speaker 1: year's midterm elections has triggered unprecedented mid decade gerrymandering, starting
Speaker 1: with the states of Texas, Missouri, North Carolina, and Ohio,
Speaker 1: where Republicans have already drawn nine new GOP leaning House seats,
Speaker 1: but Democratic states led by California are fighting back or
Speaker 1: trying to as gerrymandering in many blue states is hampered
Speaker 1: by independent redistricting commissions or bans on mid decade redistricting.
Speaker 1: House Minority Leader Hakim Jeffreys was in Illinois this week
Speaker 1: to try to convince Democrats there to redraw the state's maps.
Speaker 3: Donald Trump and Republicans have decided that they were going
Speaker 3: to try to jerrymander congressional maps all across the country
Speaker 3: as part of their effort to rig the midterm elections
Speaker 3: and deny the American people the ability to decide who
Speaker 3: should hold the gavels in the aftermath of the elections
Speaker 3: that will take place in November of twenty twenty six.
Speaker 3: Democrats have made claire that we are going to.
Speaker 1: Respond, and the latest Democratic response comes from New York
Speaker 1: City in a lawsuit by a group of voters claiming
Speaker 1: that the congressional district held by the city's only Republican
Speaker 1: representative is impermissibly drawn to shut out black and Latino voters.
Speaker 1: My guest is Jeffrey Weiss, a professor at New York
Speaker 1: Law School who directs the school's New York Elections, Census
Speaker 1: and Redistricting Institute. Jeff tell us about this lawsuit that's
Speaker 1: challenging New York's eleventh Congressional district.
Speaker 5: Well, we have a new lawsuit filed earlier this week
Speaker 5: by a group of New York voters who are arguing
Speaker 5: that the current congressional district that includes Staten Island and
Speaker 5: parts of Brooklyn teluts pnority voting strength, that the black
Speaker 5: and Hispanic voters power is diminished by the way the
Speaker 5: district is drawn now, and that they would have a
Speaker 5: much more effective voice in the ability to elect a
Speaker 5: preferred candidate if parts of Manhattan were appended to the
Speaker 5: district instead of Brooklyn.
Speaker 1: Is this an unusual lawsuit.
Speaker 5: It's unusual in the sense that's being brought mid decade. Obviously,
Speaker 5: it's got political connotations that it would change the dynamic
Speaker 5: of who's running for re election in New York, that
Speaker 5: current Republican congress Member Nicole Meliotacus would find herself no
Speaker 5: longer in conservative white areas in Brooklyn, but rather parts
Speaker 5: of Lower Manhattan. That it would be a district where
Speaker 5: the Democrats are expected to do a lot better. It's
Speaker 5: also a district where Dan Goldman, who is the incumbent
Speaker 5: now in a district that includes Manhattan and Brooklyn would
Speaker 5: probably find himself in better territory and also probably stave
Speaker 5: off a primary challenge within the Demo Credit Party from
Speaker 5: several Brooklyn elected officials who have indicated their intent to
Speaker 5: run against him in a primary.
Speaker 1: Is this lawsuit different because it's based on the New
Speaker 1: York State Constitution rather than the US Constitution? So well,
Speaker 1: test how protective the state constitution is of minority voting rights.
Speaker 5: Well, this claim is based on the state constitutional protections
Speaker 5: that redistricting maps have to honor minority voting strain that
Speaker 5: you cannot dilute minority voters from their ability to elect
Speaker 5: preferred candidates, and the state constitution uses very similar language
Speaker 5: to the Federal Voting Rights Act, which happens to be
Speaker 5: subject to a challenge now from the Louisiana Congressional redistricting
Speaker 5: before the US Supreme Court. The validity the future of
Speaker 5: the Federal Voting Rights Act was heard in a case
Speaker 5: two weeks ago, and we expect any time from the
Speaker 5: end of this year, but more likely by the end
Speaker 5: of June, for the Supreme Court to hand down a
Speaker 5: decision where most of us think they're going to do
Speaker 5: something to change the dynamic of the Voting Rights Act,
Speaker 5: but not eliminated entirely. But that's reading the tea leaves
Speaker 5: too much.
Speaker 1: Well, your prediction there fits in with the predictions of
Speaker 1: other election law experts. So let's say the Supreme Court
Speaker 1: does change the Voting Rights Act in some way. Will
Speaker 1: that affect the New York Constitution.
Speaker 5: Well, it could affect the state Constitution to the extent
Speaker 5: of what the Supreme Court might limit. Right now, the
Speaker 5: gold standard in vote dilution is Section two of the
Speaker 5: Voting Rights Act, and the Supreme Court adopted a test
Speaker 5: in the mid nineteen eighties in a North Carolina case
Speaker 5: called Thornberg versus Jingles, where a challenging minority group has
Speaker 5: to demonstrate to a court that, if it claims it
Speaker 5: should have an effective minority district, you've got to have
Speaker 5: fifty percent or more of a district being comprised of
Speaker 5: minority voters. Second, you have to show that the minority
Speaker 5: voters vote cohesively pretty much the same way for similar candidates.
Speaker 5: And third, most importantly, you've got to show that there
Speaker 5: is a high level of racially polarized voting, where white
Speaker 5: voters constantly outvote minority voters' abilities to elect preferred candidates
Speaker 5: in primaries or general elections. So if you meet those
Speaker 5: three prongs, size, cohesiveness, and polarized voting, then you have
Speaker 5: a Voting Rights Act violation situation. And the Supreme Court
Speaker 5: is now being asked whether that test is still a
Speaker 5: cogent one to use now in the twenty first century.
Speaker 1: So, in this case, black and Latino voters constitute nearly
Speaker 1: a quarter of the voting population in that congressional district.
Speaker 1: Is that enough then?
Speaker 5: Well, what the plaintiffs are doing here. They're challenging the
Speaker 5: map based on the state Constitution, but they're trying to
Speaker 5: incoperate the New York State Voting Rights Act, which was
Speaker 5: enacted by the legislature in twenty twenty two. The State
Speaker 5: Voting Rights Act does not apply to congressional districts, but
Speaker 5: it does lay out different kinds of criteria and standards
Speaker 5: that courts should look to when looking at vote dilution
Speaker 5: claims in counties, towns, cities, and villages. So they're saying
Speaker 5: that there is similar preamble language in both the state
Speaker 5: Constitution and the State Voting Rights Act that it makes
Speaker 5: a lot of sense to also incorporate the State statue
Speaker 5: standards into the state constitutional situation, and that will probably
Speaker 5: be one of the first arguments that I think intervening
Speaker 5: Republicans will make to dismiss this case is that the
Speaker 5: State Voting Rights Act doesn't apply. What the plaintiffs are
Speaker 5: doing here is using these state Voting Rights ac criteria that,
Speaker 5: unlike federal law, where you need to have a district
Speaker 5: of a at least fifty percent plus minority voter population,
Speaker 5: the federal Voting Right Stack requires the fifty percent pretty
Speaker 5: much of one racial group, be the black or Hispanic orasion.
Speaker 5: But the state law permits you to aggregate or put
Speaker 5: together smaller communities of what's the black and Hispanic populations
Speaker 5: that you can combine voters, and that, in essence is
Speaker 5: what they're looking to do by adding a part of
Speaker 5: Manhattan to the Staten Island based district.
Speaker 1: Would doing this create one of those odd looking shape
Speaker 1: districts on the map.
Speaker 5: The Hispanic population in Lower Manhattan is not adjacent to
Speaker 5: South Ferry right the foot of Manhattan Island by the
Speaker 5: New York Harbor. It's considerably north there, so you'd have
Speaker 5: to take Staten Island, take the Staten Island Ferry over
Speaker 5: to Manhattan and drive up aways basically up to the
Speaker 5: Brooklyn Bridge, where you have an Hispanic population in the
Speaker 5: lower east side, up to by fourteenth Street. And that
Speaker 5: raises the question of whether race is the predominant factor
Speaker 5: in creating this district, because that runs against what the
Speaker 5: Supreme Court has said about racial garry mandering, which is
Speaker 5: subject to strict scrutiny and has to be narrowly tailored
Speaker 5: to remedy specific problem. So the plaintiffs are going to
Speaker 5: have to demonstrate to the court why a district that
Speaker 5: constitutes Staten Island and parts of Old Manhattan makes sense,
Speaker 5: as if a lot.
Speaker 1: Of these new districts make sense. So Melia Takis said,
Speaker 1: it's a frivolous lawsuit trying to upband our congressional district.
Speaker 1: And she noted that the current map was approved by
Speaker 1: New York's Democratic controlled state legislature and Democratic governor. Does
Speaker 1: she have the advantage here? In other words, is this
Speaker 1: an uphill battle for the Democrats?
Speaker 5: Yeah, the clock is ticking. The State Supreme Court only
Speaker 5: has two months to render a decision, which we take
Speaker 5: us to mid to late December. Petitioning for the twenty
Speaker 5: twenty six election cycle right now gets underway in late February,
Speaker 5: so that leaves very little time for New York's mid
Speaker 5: level appeals court, the Appellate Division, and then finally the
Speaker 5: State Court of Appeals and already to hear this case.
Speaker 5: And you can pretty much be sure that whoever objects
Speaker 5: to this case, and I'm anticipating Republican interveners will strenuously
Speaker 5: try to slow this case down and prevent it from
Speaker 5: impacting the twenty twenty six elections.
Speaker 1: Jeff. There was litigation around the New York maps for years,
Speaker 1: and the Democrats control both houses and the governor's office.
Speaker 1: Now they're suing over their own maps. Tell us how
Speaker 1: we got.
Speaker 5: Here, well, I think by twenty twenty four, after a
Speaker 5: failed process in twenty twenty two where a state commission
Speaker 5: that was proved by the voters twenty fourteen basically imploded
Speaker 5: and subject to a court order, went back to work
Speaker 5: and finished the job by January twenty twenty four, the
Speaker 5: legislature wanted to end this process have a new map
Speaker 5: for twenty twenty four, actually a bipartisan map with Republican support.
Speaker 5: So the map that was agreed to took some strenuous
Speaker 5: effort early last year, and the case that's been brought
Speaker 5: now you can consider somewhat democrats challenging democrats.
Speaker 1: Is there any other effort underway in New York State to.
Speaker 5: Redistrict Well, there is another approach. Earlier in the summer,
Speaker 5: the Senate Deputy majority Leader and a member of the
Speaker 5: Assembly introduced a resolution in the legislature that would permit
Speaker 5: New York to redraw the district lines mid decade, if
Speaker 5: and only after any other state does the same thing
Speaker 5: in mid decades. So since Texas already went ahead and
Speaker 5: mid decade redistricted, this amendment would let New York also
Speaker 5: redistrict mid decade. The state constitution right now prohibits that.
Speaker 5: But the barrier to that is that, since the state
Speaker 5: constitution now currently does are mid decade redistricting, you have
Speaker 5: to change the constitution, and to do that you need
Speaker 5: to have an amendment go through two separately elected legislatures.
Speaker 5: So the plan now is to pass something, whether it's
Speaker 5: the amendment that was introduced earlier this summer or possibly
Speaker 5: a more expansive amendment, but to do that next year,
Speaker 5: then pass it again with the new legislature in twenty
Speaker 5: twenty seven, so that the voters can then approve the
Speaker 5: question and then enable the legislature to redraw a new
Speaker 5: map for twenty twenty eight. This is similar to the
Speaker 5: process that's getting underway this week in Virginia. The New
Speaker 5: York situation is complicated in that we've got politics, personalities,
Speaker 5: competing lawsuits, and the calendar all running against each other
Speaker 5: at the same time.
Speaker 1: With all these states redistricting, what are the maps going
Speaker 1: to look like after the midterms? All Republican House seats
Speaker 1: in one state, all Democratic House seats in another.
Speaker 5: That's why I think this will continue till twenty twenty eight,
Speaker 5: and then we have twenty thirty ahead of us, where
Speaker 5: the White House is already trying to manipulate the way
Speaker 5: the census is conducted to base the numbers on citizens
Speaker 5: and not on the whole number of persons as the
Speaker 5: Constitution requires. So this is a multifaceted battle.
Speaker 1: Multifaceted and seemingly never ending. Thanks for an interesting conversation, Jeff.
Speaker 1: That's Professor Jeffrey Weiss of New York Law School. And
Speaker 1: that's it for this edition of the Bloomberg Law Show.
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