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Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.

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Speaker 2: The Trump administration wants to get rid of a rule

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Speaker 2: that protects tens of millions of acres of national forest

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Speaker 2: from road building and large scale logging, forests that protect

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Speaker 2: endangered species, biodiversity, and watersheds used for drinking water from

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Speaker 2: Alaska to Puerto Rico. But scrapping the so called Roadless

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Speaker 2: Rule will face a reality check from litigation, government downsizing,

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Speaker 2: and even a soft timber market. Joining me is an

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Speaker 2: expert in environmental law, Pat Parento, a professor at the

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Speaker 2: Vermont Law and Graduate School. Pat, just what is the

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Speaker 2: Roadless Rule?

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Speaker 1: So this was a rule adopted during President Clinton's last

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Speaker 1: year in office, literally, and it relates to areas on

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Speaker 1: the National Forest which are one hundred and ninety three

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Speaker 1: million acres and it comprises about fifty eight thousand acres,

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Speaker 1: so it's about thirty percent of all the lands in

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Speaker 1: the National Forests. And these are areas that, as the

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Speaker 1: name implies, don't have roads. And the reason, by the way,

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Speaker 1: they don't have roads and haven't for over one hundred

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Speaker 1: years of Forest Service management, which has always emphasized logging.

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Speaker 1: That's been the raison detra of the National forests for

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Speaker 1: almost its entire existence.

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Speaker 2: Right.

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Speaker 1: The reason they're roadless is they're too expensive to build

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Speaker 1: and maintain roads in these remote areas, high elevation areas,

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Speaker 1: very difficult to access areas. If they were accessible, they

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Speaker 1: would have been logged long ago, because the Forest Service

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Speaker 1: has been converting native forests wild forests to plantations, plantations

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Speaker 1: emphasizing commercially valuable species, eliminating everything else. So that's why

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Speaker 1: they're roadless, and that's why they've become such valuable for

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Speaker 1: many reasons wildlife and fisheries, conservation, endangered species, but also

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Speaker 1: water supply. These are intact watersheds I mean relatively intact, right,

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Speaker 1: that haven't been disturbed, that haven't been roaded, and therefore

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Speaker 1: the water coming off of that landscape has been filtered

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Speaker 1: by all of the trees and vegetation. A healthy forest,

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Speaker 1: in other words, produces clean water. This is water you

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Speaker 1: can drink. I mean it's not recommended, you know, because

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Speaker 1: of you know, bacteria, but in terms of pollution, this

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Speaker 1: is water that you don't have to filter and treat extensively.

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Speaker 1: So these areas are valuable for all kinds of reasons,

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Speaker 1: you know, outdoor recreation, sure, fishing and hunting and all that,

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Speaker 1: but also water supply. So that's what at stake here.

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Speaker 2: Before I did research for this story, I thought that

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Speaker 2: the Forest Service was meant to preserve our forests, not

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Speaker 2: to produce timber.

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Speaker 1: Yeah, well, I mean their manage under what's called multiple use.

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Speaker 1: Some people would you know, say multiple abuse. But still

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Speaker 1: the law says there are five different values of the forest,

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Speaker 1: including as I mentioned, fish and wildlife, recreation, water supply,

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Speaker 1: and lumber. Of course, timber is one of the primary

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Speaker 1: reasons for managing national forests, and you know, we've had

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Speaker 1: laws that required the Forest Service to come up with

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Speaker 1: an annual quota of cuts. Whether or not the market

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Speaker 1: needed the amount of timber, the Forest Service was obligated

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Speaker 1: to put it on the market sell it for below

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Speaker 1: market value in many cases, and a lot of the

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Speaker 1: timber that came off national forests, particularly in the West,

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Speaker 1: particularly the old growth forests of the Pacific Northwest and Alaska,

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Speaker 1: they were cut for export. They weren't processed in the

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Speaker 1: United States. We were operating like a third world country

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Speaker 1: in terms of our national forests exporting really high value trees,

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Speaker 1: large diameter old growth trees, to send them to Japan,

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Speaker 1: send them to Korea, and have to Japan and Korea

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Speaker 1: process these into furniture in the musical instruments, pianos, even chapsticks, right,

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Speaker 1: and then sell them back to us. It was crazy

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Speaker 1: that we were letting other countries benefit from our forest resources.

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Speaker 1: So that all came to an end. And Clinton was

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Speaker 1: certainly instrumental during the whole spot at Owl God Squad

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Speaker 1: proceedings and all of that background. Clinton was the one

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Speaker 1: who said, you know, we've got to retain the remainder

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Speaker 1: of our intact forest resources for all these reasons. And

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Speaker 1: so you know, we've turned the corner on how the

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Speaker 1: national forests are being managed for multiple uses, not just

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Speaker 1: timber production. But now, of course Trump wants to prioritize

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Speaker 1: what he's calling you a lumber emergency. Of course, I

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Speaker 1: don't know how many You've lost track of the number

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Speaker 1: of emergencies he's declared, but we've apparently got a timber

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Speaker 1: emergency as well.

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Speaker 2: So the Agriculture Secretary Brook Rollins, who slammed the roadless

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Speaker 2: rule as absurd, said there's a timber emergency and they

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Speaker 2: have to get more logs on trucks to comply with

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Speaker 2: Trump's March order calling for expanded forest cutting to avoid

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Speaker 2: importing wood products and reduce wildfire threats. Is there a

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Speaker 2: timber emergency.

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Speaker 1: No, there is certainly a demand for more timber from

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Speaker 1: the forest products industry, from the lumber companies because they

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Speaker 1: don't want to have to import lumber from Canada. We

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Speaker 1: do import a lot from Canada. I mean, Manada has

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Speaker 1: more forests than we do. And of course, now with

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Speaker 1: tariffs imposed by Trump on Canadian imports, the cost of

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Speaker 1: lumber from Canada is going to becoming more expensive, as

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Speaker 1: is everything else from coffee to eggs. Right, So that

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Speaker 1: is true. But the reason that there is a shortage

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Speaker 1: of timber production in the United States is for three reasons.

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Speaker 1: Number one, it is the labor shortage. Number two, it's

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Speaker 1: the mills that used to process timber have closed. And

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Speaker 1: number three is the supply chain for lumber products has

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Speaker 1: become more complicated, you know, the transportation of logs and trees,

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Speaker 1: you know, between the United States and Canada has become

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Speaker 1: more complicated. So the reasons why the domestic production of

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Speaker 1: lumber has declined has nothing to do with an emergency.

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Speaker 1: We have plenty of timber and lumber. The question is

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Speaker 1: at what cost? And if you want to increase us

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Speaker 1: production of timber, the way to do that is to

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Speaker 1: create a market for it and then create the labor.

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Speaker 1: And also, by the way, have an agency, namely the

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Speaker 1: Forest Service, with skilled silver culturists, the people that manage

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Speaker 1: the forest. And of course Trump is cutting those positions.

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Speaker 1: They've cut over two thousand Forest Service positions. When you

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Speaker 1: do that, you can't do the planning, the management, the

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Speaker 1: timber sales. So those are some of the reasons why

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Speaker 1: if there's a shortage of domestic lumber on the market.

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Speaker 1: The reasons are not because we're not logging old growth

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Speaker 1: and roadless areas. The reasons lie elsewhere.

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Speaker 2: And what would be the impact of rescinding this roadless rule.

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Speaker 1: By the way, we should say something about what the

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Speaker 1: roadless rule is and what it allows, because it addresses

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Speaker 1: specifically this business about we need to cut these trees

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Speaker 1: to manage wildfire. Right, So what the roadless rule allows

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Speaker 1: is thinning of forests fuel reduction, which means you know,

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Speaker 1: the small trees in the forest and prescribe burns. That's

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Speaker 1: number one. Number two roadless areas have been roadless for

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Speaker 1: over one hundred years, as I mentioned, and there hasn't

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Speaker 1: been any intensive logging because they're so expensive to build

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Speaker 1: and maintain. And the rule also reduces all of the litigation.

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Speaker 1: I've been involved in defending the roadless Rule full disclosure

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Speaker 1: back in two thousand and two in the Ninth Circuit

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Speaker 1: Court of Appeals, and since then there've been over a

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Speaker 1: dozen lawsuits. There's been all kinds of conflict in litigation

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Speaker 1: over these areas, and so one of the reasons for

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Speaker 1: the roadless rule is to say, well, let's put an

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Speaker 1: end to these endless lawsuits and conflict over these areas.

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Speaker 1: They're very popular with the public, that's why there's so

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Speaker 1: much controversy in litigation, and this roadless rule was designed

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Speaker 1: to put an end to that and get the Forest

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Speaker 1: Service to focus on those areas of the National Forest

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Speaker 1: where there is a history of commercial logging and you know,

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Speaker 1: focus your efforts on increasing production if that's what we

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Speaker 1: nationally think we need to do in those areas that

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Speaker 1: are already roaded. And by the way, there are two

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Speaker 1: one hundred and sixty five thousand miles of forest roads

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Speaker 1: in the National Forest. Think about that. The entire interstate

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Speaker 1: highway system is forty seven thousand miles, So you can

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Speaker 1: do the math. You're talking about, you know, a huge

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Speaker 1: multiple of roads already in the National Forest, and guess

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Speaker 1: what the backlog of costs to either decommission as they say,

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Speaker 1: these roads in other words, restore them to a natural environment,

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Speaker 1: or just simply maintain them. The price tag for that

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Speaker 1: is over eight billion dollars in FY twenty twenty three.

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Speaker 1: So you know, the Forest Service doesn't eat and begin

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Speaker 1: to have enough money to manage the roads they already

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Speaker 1: have to either maintain them or decommission them. Right, So

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Speaker 1: now you're talking about opening up all these new areas

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Speaker 1: to road building with all the expense of that and

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Speaker 1: the maintenance of that of those roads once they're built,

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Speaker 1: and then you're going to access these areas that haven't

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Speaker 1: been logged, haven't been commercially valuable enough to invest the

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Speaker 1: money to log them. That's what this order is talking about.

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Speaker 2: And the Forest Service is dealing with budget cuts and

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Speaker 2: staffing shortages, so it may have problems just keeping up

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Speaker 2: with the things it already has to do.

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Speaker 1: Right, they don't have a budget. The budget they have

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Speaker 1: for managing wildfires is the largest segment of their budget.

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Speaker 1: It's over a billion dollars. Wildfires is definitely a problem.

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Speaker 1: There's lots of reasons for that. We could have a

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Speaker 1: whole program on it. Why there are so many wildfires,

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Speaker 1: including of course climate change and global warming driven wildfires,

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Speaker 1: but lots of reasons why. Building in the areas close

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Speaker 1: to the forest interface is a reason for wildfires. But

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Speaker 1: here's the thing about roads. When you build more roads,

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Speaker 1: you're going to get more wildfires. The data is crystal

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Speaker 1: clear on that. Why. Guess why, Because people are driving

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Speaker 1: into these areas, these remote areas, and what are they doing.

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Speaker 1: They're building campfires, aren't they And what do they do

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Speaker 1: with campfires? Do they always always put them out?

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Speaker 3: No?

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Speaker 1: Ninety percent of wildfire ignition is human caused, ninety percent.

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Speaker 1: That's the data. So you put roads into these areas,

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Speaker 1: you're going to get more wildfires. That's clear from our

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Speaker 1: history of dealing with wildfires, and the Forest Service would

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Speaker 1: tell you that.

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Speaker 2: Yeah. Forest Service research published during the first Jump administration

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Speaker 2: show that more wildfires ignite near roads. Wildfire mitigation efforts

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Speaker 2: have been more common in roadless areas than in the

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Speaker 2: rest of the national forests. And roadless areas have no

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Speaker 2: effect on wildfire burn rates. Coming up next on the

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Speaker 2: Bloomberg Lawn Show, I'll continue this conversation with Professor Pat

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Speaker 2: Parento of the Vermont Law and Graduate School. We'll talk

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Speaker 2: about some of the litigation that can be expected if

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Speaker 2: the roadless Rule is rescinded. I'm June Grosso. When you're

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Speaker 2: listening to Bloomberg. The Trump administration wants to get rid

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Speaker 2: of a rule that protects tens of millions of acres

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Speaker 2: of national forest from road building and large scale logging,

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Speaker 2: but its zealed to log will face a reality check

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Speaker 2: from government downsizing, possible litigation, and even a soft timber market.

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Speaker 2: The US Forest Service, which manages roadless areas, is grappling

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Speaker 2: with budget cuts and staffing shortages. At the same time,

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Speaker 2: environmental groups are gearing up for legal battles arguing the

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Speaker 2: so called roadless Rule safeguards endangered species, clean water, and

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Speaker 2: buy diversity. President Bill Clinton implemented the rule in the

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Speaker 2: final weeks of his term, envisioning it as a way

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Speaker 2: to protect endangered species and three hundred and fifty watersheds

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Speaker 2: within national forests used for drinking water. From Alaska to

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Speaker 2: Puerto Rico. Among the places the rule has preserved are

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Speaker 2: parts of the world's largest coastal temperate rainforest in Alaska's

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Speaker 2: Tongus National Forest, vast mountain ranges in central Idaho, the

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Speaker 2: peaks and plateaus above Utah's Contested Barriers National Monument, and

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Speaker 2: the Appalachian Forest in Virginia. But Agricultural Secretary Brook Rawlins

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Speaker 2: has slammed the roadless rule as absurd and declared a

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Speaker 2: timber emergency to get more logs on trucks and comply

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Speaker 2: with Trump's March order calling for expanded forest cutting to

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Speaker 2: avoid importing wood products and reduced wildfire threats. I've been

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Speaker 2: talking to Professor Pat Parento of the Law and Graduate School.

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Speaker 2: If they do rescind the rule, I mean, do you

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Speaker 2: think that nothing much would happen at the beginning because

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Speaker 2: the Forest Service doesn't have the money or the staff

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Speaker 2: to start building roads.

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Speaker 1: Well, first of all, I mean an attempt to repeal

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Speaker 1: this roadless rule that, as I said, there's been over

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Speaker 1: a dozen lawsuits. There'll be another one, several in fact,

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Speaker 1: So the first thing you're going to have is another

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Speaker 1: round of litigation over repealing the rule, and that'll involve

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Speaker 1: the National Environmental Policy Act, the Endangered Species Act, the

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Speaker 1: Administrative Procedure Act, the whole panoply of federal law will

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Speaker 1: come into play, and it'll be litigated in many district

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Speaker 1: courts around the country. Because everybody's got a favorite for us,

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Speaker 1: they're going to defend to the death, not to the death,

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Speaker 1: but they're going to defend vigorously. Right, So we're going

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Speaker 1: to have a whole bunch of litigation over whether the

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Speaker 1: repeal of the roadless rule is legitimate. And I predict

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Speaker 1: they're going to be injunctions levied against the Forest Service

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Speaker 1: when they try to sell timber from these areas. And

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Speaker 1: then of course is the question of market so you know,

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Speaker 1: if the companies have to build these roads, I don't

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Speaker 1: think there's going to be very many of these areas

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Speaker 1: that will be logged. One of the biggest ones that's

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Speaker 1: been contentious is the Tongas National Forest in Alaska, and

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Speaker 1: that's been back and forth between it's either exempt from

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Speaker 1: the roadless rule or it's in the roadless rule. Currently

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Speaker 1: it is in the roadless rule. So there's certainly part

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Speaker 1: of the forests where the value of the timber in question.

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Speaker 1: These old growth large trees is sufficient enough that the

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Speaker 1: timber industry is going to want to fight over that

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Speaker 1: and try to get access to those areas. But in

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Speaker 1: terms of the fifty eight thousand acres around the country,

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Speaker 1: including forests in the east right here in our own Vermont,

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Speaker 1: the Green Mountain National Forests, or across the river in

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Speaker 1: nor Hampshire the White Mountain National Forests. You know, these

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Speaker 1: are areas that have roadless areas, and the timber in

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Speaker 1: those areas just isn't going to be economically feasible. It's

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Speaker 1: a log But some of these big western forest, yeah,

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Speaker 1: there's probably going to be significant fights to get access

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Speaker 1: to those areas.

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Speaker 2: So you litigated this, as you mentioned. If they do

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Speaker 2: rescind the roadless rule, what would some of the challenges

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Speaker 2: be League.

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Speaker 1: One, Well, you know, the National Forest Management Act requires

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Speaker 1: that every forest have a plan, and because the roadless

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Speaker 1: Rule has been in effect, you know, it's gone through

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Speaker 1: as I say, different iterations, shall we say, as different

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Speaker 1: administrations come and go. You know, the Clinton administration, then

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Speaker 1: the Bush one administration, and then you had Bush two,

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Speaker 1: and so you know it's gone back and forth in

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Speaker 1: terms of the extent of the roadless rule and what

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Speaker 1: forests we're in and out. But right now all of

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Speaker 1: these areas are are protected as roadless and so the

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Speaker 1: National Forest Management Act will be one of the principal

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Speaker 1: laws because you have to comply with forest plans. And

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Speaker 1: if the forest plan says there's no logging in these

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Speaker 1: roadless areas, then there can't be any logging until you

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Speaker 1: change the forest plan. That would be step number one. Well,

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Speaker 1: to do that, you have to go through NEPA. You

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Speaker 1: have to do another environmental assessment at least, if not

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Speaker 1: an environmental impact statement. We've talked a lot about what's

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Speaker 1: happening with NEFA. And even though you know the Trump

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Speaker 1: administration is trying to limit the scope of NIPA and

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Speaker 1: the Supreme Court as well, it still exists. It's still

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Speaker 1: a law. It has to be complied with, and you

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Speaker 1: can't just snap your fingers and say we're going to

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Speaker 1: change a forest plan and we're going to write a

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Speaker 1: two page environmental impact statement to do it. That's going

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Speaker 1: to get challenged and overturned in court. Most of these

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Speaker 1: areas contain really important critical habitat of a number of

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Speaker 1: endangered species. Think Canada Links, think wolverine, Think grizzly bears.

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Speaker 1: Think marbl mural ass think spotted owls. I could go

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Speaker 1: on and on. These old girls, for uts are the

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Speaker 1: last stronghold of many of our most high profile in

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Speaker 1: endangered species, right, not just insects and butterflies, but you know,

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Speaker 1: animals that people really care about and will fight for.

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Speaker 1: So you know that's what you're looking at when you

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Speaker 1: go after these areas, You're going to involve a whole

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Speaker 1: splate of environmental laws, including, by the way, the Clean

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Speaker 1: Water Act. Because when you road these areas, rode them,

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Speaker 1: build roads in them, they erode, right, and sediment comes off,

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Speaker 1: and sediment carries all kinds of other pollutants. If you

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Speaker 1: think about, you know, the way we fight fires, We

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Speaker 1: flood the landscape with not only pesticides, but herbicides and

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Speaker 1: other fire retardant chemicals that are toxic. And there's all

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Speaker 1: kinds of data about the fact that forests now have

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Speaker 1: all kinds of these chemicals saturated into the sediment of

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Speaker 1: these rivers coming out of the streams that are coming

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Speaker 1: off these national forests and again down into the water

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Speaker 1: supply systems for communities. So all kinds of laws come

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Speaker 1: into play when you go after these roadless areas.

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Speaker 2: The Agricultural Secretary made this announcement in June, and nothing's

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Speaker 2: been done yet where edging into late August. Is it

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Speaker 2: something that might just be put aside, although you also

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Speaker 2: have the fact that the so called Big Beautiful Bill

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Speaker 2: mandates that the Forest Service increased US timber sales by

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Speaker 2: two hundred and fifty million board feet each year through

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Speaker 2: twenty thirty four. That's an eight percent annual increase over

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Speaker 2: twenty twenty three and a roughly seventy five percent cumulative

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Speaker 2: spike in logging over the next nine years.

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Speaker 1: Yeah. Well, you know, you can put those kinds of

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Speaker 1: goals out there, the same thing with how many people

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Speaker 1: were going to deport every year, And the truth is,

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Speaker 1: the reality is you're not going to meet those quotas,

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Speaker 1: the market isn't going to be there to meet those quotas,

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Speaker 1: or the amount of litigation I'm describing is going to

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Speaker 1: stretch out for years into whatever the next administration is

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Speaker 1: going to be. And as I've said, you know, this

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Speaker 1: roadless rule has been a bone of contention of political

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Speaker 1: football for over twenty years, well over almost twenty five years.

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Speaker 1: And so if it's not going to end. It's not

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Speaker 1: going to stop with the Trump administration. They're not going

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Speaker 1: to be able to road all these areas and get

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Speaker 1: all the timber out of these areas. It's just not

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Speaker 1: going to happen until there's another administration in power, maybe

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Speaker 1: a different Congress in power. Who knows. But the point is,

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Speaker 1: we don't know what the future of these areas are.

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Speaker 1: Just because the Agriculture Secretary is making these sweeping pronouncements

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Speaker 1: doesn't mean it's going to happen.

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Speaker 2: Looking at this broader and as far as what steps

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Speaker 2: the Trump administration has taken so far with regard to

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Speaker 2: the environment, are they focusing on one area in particular

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Speaker 2: or broader than that.

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Speaker 1: We thought the focus was going to be climate and energy,

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Speaker 1: and of course it certainly has been. But frankly, from

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Speaker 1: what I see, it's across the board. There is no

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Speaker 1: law that's safe from this administration, no environmental law, and

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Speaker 1: you could broaden it beyond that the civil rights laws.

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Speaker 1: But certainly, from my expertise, I've never seen anything like this.

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Speaker 1: I've been doing this for fifty five years. I've seen conservative,

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Speaker 1: you know, Republican administrations come and go, including the Reagan administration,

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Speaker 1: and James Watt. I've never seen anything like this. They're

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Speaker 1: leaving no stone unturned to deregulate and cripple the ability

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Speaker 1: of federal agencies across the board to manage either public

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Speaker 1: lands as we're talking about today, or public health with EPA,

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Speaker 1: or energy supply with the Department of Energy. Nothing that

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Speaker 1: this administration is doing is designed to strengthen programs that

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Speaker 1: we have had now for many decades, to manage natural resources,

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Speaker 1: manage our energy supply and energy demand, to you know,

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Speaker 1: create affordable sources of either timber as we're talking about today,

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Speaker 1: or energy if we wanted to talk about that. The

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Speaker 1: market and the technology is pointing towards cleaner, greener systems

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Speaker 1: of producing whatever goods and services we need. This administration

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Speaker 1: is rolling the clock back across the board.

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Speaker 2: That's what I see, and that usually means even more litigation.

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Speaker 2: Thanks so much for joining me today, Pat, that's professor

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Speaker 2: Pat Parento of the Vermont Law and Graduate School.

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Speaker 1: This is what democracy look side. This is what democracy

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Speaker 1: looks side.

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Speaker 2: There were redistricting rallies in Chicago, Illinois, and Austin, Texas

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Speaker 2: over the weekend. Protests against Texas Republicans Plan to redraw

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Speaker 2: the state's congressional maps to create five new Republican seats,

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Speaker 2: and in support of Texas Democrat who disrupted a special

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Speaker 2: session in the legislature and fled to Chicago to oppose

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Speaker 2: the unusual mid decade registricting called for by President Trump.

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Speaker 3: It's important for us to show up because we kind

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Speaker 3: of started this battle.

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Speaker 2: I guess trying to wake America up. Everybody needs to

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Speaker 2: know what's happening. Everyone needs to see what we're fighting for.

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Speaker 2: Texas Democrats ran out the clock in the special legislative session,

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Speaker 2: but two hours later Governor Greg Abbott called a second

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Speaker 2: session to redraw the maps, which would target key districts

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Speaker 2: represented by Latino Democrats.

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Speaker 3: We hold a lot more bullets in our belt that

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Speaker 3: we will be ready to use if we need to.

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Speaker 2: So after two weeks, the Democratic lawmakers returned to Texas

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Speaker 2: and say the next fight will be in the courts,

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Speaker 2: where they will challenge the new maps as being racially gerrymandered.

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Speaker 2: Onny Blair is with the Texas ACLU. Governor Abbott and

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Speaker 2: Attorney General Ken Paxton are following the President's agenda to

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Speaker 2: dilute the electoral power of black and Brown Texans. The

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Speaker 2: redistricting standoff has led to a national fight for control

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Speaker 2: of Congress ahead of the twenty twenty six midterms, and today,

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Speaker 2: as Texas Republicans restarted the plan to give themselves five

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Speaker 2: more seats, California Democrats took their first official steps to

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Speaker 2: create five new House seats for their party by adopting

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Speaker 2: a measure asking voters to approve new boundaries for twenty

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Speaker 2: twenty six, twenty twenty eight, and twenty thirty, an aggressive

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Speaker 2: move maneuvered by California Governor Gavin Newsom.

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Speaker 1: It's not complicated.

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Speaker 2: We're doing this in reaction to a president of United

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Speaker 2: States that called a sitting governor of the state of

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Speaker 2: Texas and said, find me five seats. My guest is

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Speaker 2: elections law expert Richard Brefalt, a professor at Columbia Law School.

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Speaker 2: Rich does seem like there are any other impediments to

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Speaker 2: Texas Republicans passing the new maps.

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Speaker 3: I mean, I think that after it gets enacted, they'll

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Speaker 3: likely be some lawsuits challenge at least some of the

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Speaker 3: district changes under the voting rights Sack, because I think

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Speaker 3: some of them are going to be impacted what had

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Speaker 3: been either majority of minority districts or districts that were

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Speaker 3: electing minority elected Congress members. So I think there might

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Speaker 3: conceivably be some challenges to the map under the Voting

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Speaker 3: Rights Actor, under the Constitution for racial bias. Not clear

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Speaker 3: what would happen with those, not clear how quickly they

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Speaker 3: would go forward, whether they would go forward fast enough

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Speaker 3: in order to stop these changes from going into effect

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Speaker 3: next year. I don't think there's much else that can happen.

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Speaker 3: If the Democrats, I guess they've been back in one

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Speaker 3: House already, or noough of them. I think it passed

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Speaker 3: one house now. I think it's the question about the

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Speaker 3: other House.

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Speaker 2: In order to challenge a map under the Voting Rights Act,

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Speaker 2: what has to be shown? Because the Democrats have said

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Speaker 2: that some of the districts being targeted by Republicans are

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Speaker 2: those with a high percentage of Latinos or other minority.

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Speaker 3: Groups, they'd have to show that there was a pattern

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Speaker 3: of racially polarized voting and that under the new map,

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Speaker 3: minorities in this case, Latinos would be underrepresented relative to

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Speaker 3: what they would be or what they are now under

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Speaker 3: the current map. And then you'd have to tie that

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Speaker 3: into other aspects of social and economic and political life

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Speaker 3: in Texas to stay that Latinos are under represented politically

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Speaker 3: and need to have the seats in order to get

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Speaker 3: fair representation. But the main things they would have to

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Speaker 3: show is the existence of racially polarized voting, that Anglos

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Speaker 3: and Latinos vote differently, and that changing the map this

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Speaker 3: way would make it harder for Latino voters to get

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Speaker 3: fair representation.

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Speaker 2: And how does it fit in that their last map

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Speaker 2: is still being litigated.

435
00:26:48,880 --> 00:26:51,080
Speaker 3: Well, it's weird because of course that map was being

436
00:26:51,119 --> 00:26:53,879
Speaker 3: challenged as unfair and the state was defending it. I mean,

437
00:26:53,920 --> 00:26:57,159
Speaker 3: you could conceivably have made more majority minority districts. Actually,

438
00:26:57,200 --> 00:26:59,879
Speaker 3: even the map that's about to be replaced has a

439
00:27:00,040 --> 00:27:03,359
Speaker 3: pretty strong Republican tilt. I mean, Texas is a Republican state,

440
00:27:03,400 --> 00:27:05,760
Speaker 3: but it's like a three to two Republican state, and

441
00:27:05,800 --> 00:27:08,480
Speaker 3: the current map is two to one, and I think

442
00:27:08,520 --> 00:27:10,879
Speaker 3: the resulting map would make it more like five to

443
00:27:10,920 --> 00:27:13,320
Speaker 3: one or four to one. So I think that would

444
00:27:13,359 --> 00:27:16,199
Speaker 3: be the argument, and it might not affect every district.

445
00:27:16,200 --> 00:27:19,760
Speaker 3: In other words, the districts which are primarily affecting white Democrats,

446
00:27:19,880 --> 00:27:22,000
Speaker 3: they probably would not have a voting right sect claim.

447
00:27:22,200 --> 00:27:25,040
Speaker 3: But the districts they make it harder for Latino Democratic

448
00:27:25,040 --> 00:27:27,200
Speaker 3: representatives to be relected. I think they would be able

449
00:27:27,240 --> 00:27:28,760
Speaker 3: to make the claim, whether they win or not.

450
00:27:28,800 --> 00:27:32,399
Speaker 2: A separate question, do courts put the new maps on

451
00:27:32,520 --> 00:27:34,520
Speaker 2: hole while the litigation is going on.

452
00:27:35,320 --> 00:27:37,800
Speaker 3: That's a great question, because the Supreme Court has this

453
00:27:38,000 --> 00:27:42,879
Speaker 3: doctrine that basically says that courts should not change things

454
00:27:42,920 --> 00:27:45,240
Speaker 3: too close to an election. You know, and we don't

455
00:27:45,280 --> 00:27:46,720
Speaker 3: know what too close to an election is, but I

456
00:27:46,720 --> 00:27:49,600
Speaker 3: guess maybe it'll be primaries in March. So we're beginning

457
00:27:49,600 --> 00:27:52,280
Speaker 3: to get close to the election. But the question is

458
00:27:52,320 --> 00:27:55,320
Speaker 3: what's the status quo. Is the status quo whether the

459
00:27:55,400 --> 00:27:59,520
Speaker 3: legislature passes, in which case, if you apply that principle,

460
00:28:00,080 --> 00:28:03,159
Speaker 3: courts should not intervene. Or is the status quo the

461
00:28:03,200 --> 00:28:05,760
Speaker 3: maps that are currently in existence, in which case it

462
00:28:05,800 --> 00:28:07,840
Speaker 3: would be appropriate to put the new maps on home

463
00:28:08,119 --> 00:28:10,760
Speaker 3: so called the Percell principle. After a Supreme Court case

464
00:28:10,760 --> 00:28:13,520
Speaker 3: of about twenty years ago, again the Supreme Court said

465
00:28:13,560 --> 00:28:17,200
Speaker 3: lower federal courts should not intervene in election disputes too

466
00:28:17,240 --> 00:28:19,800
Speaker 3: close to an election. There's a general question of what's

467
00:28:19,840 --> 00:28:22,480
Speaker 3: too close to an election, and they've kind of moved

468
00:28:22,520 --> 00:28:25,160
Speaker 3: that up and up. But the question that you're asking about,

469
00:28:25,320 --> 00:28:29,480
Speaker 3: what does the intervention. Is the intervention stopping a now

470
00:28:29,960 --> 00:28:34,080
Speaker 3: legally adopted map or is the intervention preventing the disruption

471
00:28:34,160 --> 00:28:36,440
Speaker 3: of the pre existing map? And that's a great question.

472
00:28:36,560 --> 00:28:37,600
Speaker 3: I don't know the answer to that.

473
00:28:38,200 --> 00:28:41,440
Speaker 2: Texas Republicans said, well, there are a lot of states,

474
00:28:41,480 --> 00:28:45,840
Speaker 2: and I think Massachusetts was one that are more Gerrymander

475
00:28:46,000 --> 00:28:48,760
Speaker 2: than Texas is where there are so many Republicans and

476
00:28:48,920 --> 00:28:52,000
Speaker 2: they don't have any representation. I mean, is that true?

477
00:28:52,240 --> 00:28:56,640
Speaker 3: Massachusetts is the largest state which has a single party delegation.

478
00:28:56,720 --> 00:28:59,840
Speaker 3: That is said, all the representatives in Massachusetts are Democrats.

479
00:28:59,880 --> 00:29:02,760
Speaker 3: Like think that's ten out of ten. The difference is

480
00:29:02,920 --> 00:29:07,040
Speaker 3: that in Massachusetts the Democrats and Republicans are fairly evenly spread,

481
00:29:07,280 --> 00:29:10,320
Speaker 3: in other words, the Democratic majority throughout the state. There

482
00:29:10,320 --> 00:29:13,240
Speaker 3: are not big Republican pockets that would be able to

483
00:29:13,280 --> 00:29:16,920
Speaker 3: win a district under differently drawn maps. That's different from

484
00:29:16,960 --> 00:29:20,760
Speaker 3: places like Texas or Ohio or Indiana where they're talking

485
00:29:20,760 --> 00:29:25,080
Speaker 3: about redistricting and re redistricting, where there are Democratic pockets

486
00:29:25,440 --> 00:29:30,120
Speaker 3: big enough to hold multiple seats, but if they get fragmented, fractured,

487
00:29:30,160 --> 00:29:33,440
Speaker 3: and divided up into Republican areas, then they get no representation.

488
00:29:33,600 --> 00:29:37,320
Speaker 3: So it is true. If Massachusetts was done I don't

489
00:29:37,360 --> 00:29:40,480
Speaker 3: know on a proportional representation basis, they probably could be

490
00:29:40,520 --> 00:29:43,120
Speaker 3: two or three Republican seats out of ten. But because

491
00:29:43,160 --> 00:29:45,600
Speaker 3: it's done on as all of our districts have done

492
00:29:45,640 --> 00:29:50,080
Speaker 3: single mean re districts, there is no Republican area left

493
00:29:50,120 --> 00:29:56,160
Speaker 3: in Massachusetts, which I think explains why without gerrymandering, Massachusetts

494
00:29:56,160 --> 00:29:58,000
Speaker 3: has an entirely democratic delegation.

495
00:29:58,320 --> 00:30:00,680
Speaker 2: You mentioned some other states, I mean, do we know

496
00:30:00,840 --> 00:30:04,640
Speaker 2: if their maps make it possible for them to redistrict

497
00:30:04,680 --> 00:30:05,920
Speaker 2: in a way that Texas is.

498
00:30:06,200 --> 00:30:08,040
Speaker 3: I mean, I think in Indiana and in Missouri, we're

499
00:30:08,120 --> 00:30:10,360
Speaker 3: they talking about there's only like one Democrat or two

500
00:30:10,400 --> 00:30:13,040
Speaker 3: Democrats left in the state, and I think in Missouri

501
00:30:13,200 --> 00:30:16,360
Speaker 3: they would basically be either wiping out or merely wiping

502
00:30:16,360 --> 00:30:19,160
Speaker 3: out entirely democratic representation. And the way you do it

503
00:30:19,200 --> 00:30:21,920
Speaker 3: is you begin to fragment it and you like draw

504
00:30:22,120 --> 00:30:25,040
Speaker 3: slices of the pie. There's those district in Saint Louis

505
00:30:25,160 --> 00:30:28,240
Speaker 3: and attach it to suburban districts which are a majority Republican.

506
00:30:28,520 --> 00:30:31,400
Speaker 3: I'm not sure, it's just targeting. And similarly in Indiana,

507
00:30:31,440 --> 00:30:34,280
Speaker 3: I think there's a district in northern Indiana which is

508
00:30:34,320 --> 00:30:37,360
Speaker 3: in a more democratic area. If you fragmented enough people

509
00:30:37,560 --> 00:30:40,360
Speaker 3: do this call it cracking. If you crack the democratic

510
00:30:40,400 --> 00:30:43,000
Speaker 3: population and you put the little slices of it in

511
00:30:43,040 --> 00:30:45,360
Speaker 3: the different districts, you can get rid of a democratic

512
00:30:45,360 --> 00:30:48,360
Speaker 3: district which would otherwise be kind of a normally.

513
00:30:48,000 --> 00:30:53,640
Speaker 2: Shaped California Democrats are moving forward with their attempt to

514
00:30:53,800 --> 00:30:59,000
Speaker 2: redraw congressional maps. Are there any foreseeable legal problems there?

515
00:30:59,560 --> 00:31:02,479
Speaker 3: I think the problem with their maps, of course, is

516
00:31:02,560 --> 00:31:05,000
Speaker 3: getting them adopted. I mean I haven't looked at the

517
00:31:05,000 --> 00:31:07,160
Speaker 3: maps in terms of whether there would be any legal

518
00:31:07,240 --> 00:31:10,480
Speaker 3: challenges to them under federal law. I mean, they're obviously

519
00:31:10,520 --> 00:31:13,880
Speaker 3: a federal law. There are no gerrymandering challenges, and I

520
00:31:13,880 --> 00:31:16,440
Speaker 3: wouldn't expect there would be any voting right fact or

521
00:31:16,600 --> 00:31:20,680
Speaker 3: racial discrimination challenges. Now the problem is that California adopted

522
00:31:20,640 --> 00:31:24,479
Speaker 3: a constitucial amendment that created an independent districting process. In

523
00:31:24,560 --> 00:31:26,400
Speaker 3: order to adopt this map, they and effect have to

524
00:31:26,400 --> 00:31:28,680
Speaker 3: go back to the voters and then then their constitution.

525
00:31:29,440 --> 00:31:32,640
Speaker 3: My sense is that the real issue in California is

526
00:31:33,400 --> 00:31:35,680
Speaker 3: how much are the voters really willing to do this?

527
00:31:36,280 --> 00:31:38,720
Speaker 3: You know, are the voters going to be as part

528
00:31:38,760 --> 00:31:41,719
Speaker 3: as in as their elected officials, or the voters going

529
00:31:41,760 --> 00:31:43,760
Speaker 3: to say, you know, we like the idea of an

530
00:31:43,800 --> 00:31:45,600
Speaker 3: independent system and we want.

531
00:31:45,400 --> 00:31:48,360
Speaker 2: To keep it, but it's a temporary fix. It will

532
00:31:48,400 --> 00:31:51,360
Speaker 2: go back to an independent system. Right.

533
00:31:51,760 --> 00:31:53,760
Speaker 3: There's supposed to be a one shot, and I think

534
00:31:53,800 --> 00:31:56,360
Speaker 3: the way the governor phrases it, it's like it's entirely a

535
00:31:56,440 --> 00:31:59,440
Speaker 3: different tat for what Texas is doing. And it does

536
00:31:59,520 --> 00:32:02,480
Speaker 3: get to kind of a deeper problem with reform political

537
00:32:02,560 --> 00:32:04,680
Speaker 3: form of the United States is that we're doing a

538
00:32:04,680 --> 00:32:06,480
Speaker 3: lot of this on a state by state basis, but

539
00:32:06,640 --> 00:32:09,840
Speaker 3: Congress is a national legislature, and that a lot of

540
00:32:09,840 --> 00:32:12,680
Speaker 3: the states that have reformed their processes are democratic states.

541
00:32:13,040 --> 00:32:16,280
Speaker 3: Those republican states that reform their processes, one set of

542
00:32:16,280 --> 00:32:18,600
Speaker 3: states that are gerrymandering, and one set of states don't,

543
00:32:18,960 --> 00:32:22,320
Speaker 3: and that that just helps the jerrymanderers. It does kind

544
00:32:22,320 --> 00:32:25,080
Speaker 3: of underscore the difficulty of doing reform one state at

545
00:32:25,120 --> 00:32:25,520
Speaker 3: a time.

546
00:32:26,080 --> 00:32:29,600
Speaker 2: New York the governor keeps talking or has talked about it,

547
00:32:29,640 --> 00:32:32,680
Speaker 2: and the Illinois governor has talked about it, but I

548
00:32:32,720 --> 00:32:34,800
Speaker 2: haven't heard of any movement actually do.

549
00:32:34,920 --> 00:32:37,760
Speaker 3: Honestly, I don't. I think in New York this state

550
00:32:37,920 --> 00:32:41,240
Speaker 3: constitution is different from the California one in that you

551
00:32:41,400 --> 00:32:44,320
Speaker 3: can't put an amendment on the ballot unless it's been

552
00:32:44,360 --> 00:32:49,120
Speaker 3: passed by two separately elected legislatures, and so basically it's

553
00:32:49,120 --> 00:32:51,760
Speaker 3: a slow down of the process. This could not be

554
00:32:51,840 --> 00:32:55,040
Speaker 3: done even if the legislature this year passes it in

555
00:32:55,640 --> 00:32:58,040
Speaker 3: the fall of twenty twenty five, you would have to

556
00:32:58,040 --> 00:33:01,080
Speaker 3: wait until after the twenty twenty six elect for the

557
00:33:01,160 --> 00:33:04,160
Speaker 3: legislature in the beginning of twenty twenty seven to pass

558
00:33:04,200 --> 00:33:06,960
Speaker 3: an amendment or to pass a new map or something,

559
00:33:07,320 --> 00:33:08,600
Speaker 3: and then it would go to the voters, but it

560
00:33:08,600 --> 00:33:11,160
Speaker 3: wouldn't be effective until the twenty twenty eight elections.

561
00:33:11,280 --> 00:33:13,800
Speaker 2: Well, then, it seems like Democrats in New York have

562
00:33:14,360 --> 00:33:18,920
Speaker 2: no options before the twenty twenty six midterms. I'm not

563
00:33:18,960 --> 00:33:23,280
Speaker 2: sure what's happening in Illinois, and even Maryland has been

564
00:33:23,360 --> 00:33:28,360
Speaker 2: mentioned by Democrats as a possibility. So we'll see. Thanks

565
00:33:28,400 --> 00:33:32,760
Speaker 2: so much, rich that's Professor Richard Brfault of Columbia Law School,

566
00:33:33,440 --> 00:33:35,800
Speaker 2: And that's it for this edition of the Bloomberg Law Show.

567
00:33:36,120 --> 00:33:38,479
Speaker 2: Remember you can always get the latest legal news on

568
00:33:38,520 --> 00:33:42,800
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

569
00:33:43,000 --> 00:33:48,040
Speaker 2: and at www dot bloomberg dot com, slash podcast slash Law,

570
00:33:48,440 --> 00:33:51,000
Speaker 2: and remember to tune into The Bloomberg Law Show every

571
00:33:51,040 --> 00:33:54,960
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

572
00:33:55,120 --> 00:33:56,720
Speaker 2: and you're listening to Bloomberg