Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
Speaker 2: The Trump administration wants to get rid of a rule
Speaker 2: that protects tens of millions of acres of national forest
Speaker 2: from road building and large scale logging, forests that protect
Speaker 2: endangered species, biodiversity, and watersheds used for drinking water from
Speaker 2: Alaska to Puerto Rico. But scrapping the so called Roadless
Speaker 2: Rule will face a reality check from litigation, government downsizing,
Speaker 2: and even a soft timber market. Joining me is an
Speaker 2: expert in environmental law, Pat Parento, a professor at the
Speaker 2: Vermont Law and Graduate School. Pat, just what is the
Speaker 2: Roadless Rule?
Speaker 1: So this was a rule adopted during President Clinton's last
Speaker 1: year in office, literally, and it relates to areas on
Speaker 1: the National Forest which are one hundred and ninety three
Speaker 1: million acres and it comprises about fifty eight thousand acres,
Speaker 1: so it's about thirty percent of all the lands in
Speaker 1: the National Forests. And these are areas that, as the
Speaker 1: name implies, don't have roads. And the reason, by the way,
Speaker 1: they don't have roads and haven't for over one hundred
Speaker 1: years of Forest Service management, which has always emphasized logging.
Speaker 1: That's been the raison detra of the National forests for
Speaker 1: almost its entire existence.
Speaker 2: Right.
Speaker 1: The reason they're roadless is they're too expensive to build
Speaker 1: and maintain roads in these remote areas, high elevation areas,
Speaker 1: very difficult to access areas. If they were accessible, they
Speaker 1: would have been logged long ago, because the Forest Service
Speaker 1: has been converting native forests wild forests to plantations, plantations
Speaker 1: emphasizing commercially valuable species, eliminating everything else. So that's why
Speaker 1: they're roadless, and that's why they've become such valuable for
Speaker 1: many reasons wildlife and fisheries, conservation, endangered species, but also
Speaker 1: water supply. These are intact watersheds I mean relatively intact, right,
Speaker 1: that haven't been disturbed, that haven't been roaded, and therefore
Speaker 1: the water coming off of that landscape has been filtered
Speaker 1: by all of the trees and vegetation. A healthy forest,
Speaker 1: in other words, produces clean water. This is water you
Speaker 1: can drink. I mean it's not recommended, you know, because
Speaker 1: of you know, bacteria, but in terms of pollution, this
Speaker 1: is water that you don't have to filter and treat extensively.
Speaker 1: So these areas are valuable for all kinds of reasons,
Speaker 1: you know, outdoor recreation, sure, fishing and hunting and all that,
Speaker 1: but also water supply. So that's what at stake here.
Speaker 2: Before I did research for this story, I thought that
Speaker 2: the Forest Service was meant to preserve our forests, not
Speaker 2: to produce timber.
Speaker 1: Yeah, well, I mean their manage under what's called multiple use.
Speaker 1: Some people would you know, say multiple abuse. But still
Speaker 1: the law says there are five different values of the forest,
Speaker 1: including as I mentioned, fish and wildlife, recreation, water supply,
Speaker 1: and lumber. Of course, timber is one of the primary
Speaker 1: reasons for managing national forests, and you know, we've had
Speaker 1: laws that required the Forest Service to come up with
Speaker 1: an annual quota of cuts. Whether or not the market
Speaker 1: needed the amount of timber, the Forest Service was obligated
Speaker 1: to put it on the market sell it for below
Speaker 1: market value in many cases, and a lot of the
Speaker 1: timber that came off national forests, particularly in the West,
Speaker 1: particularly the old growth forests of the Pacific Northwest and Alaska,
Speaker 1: they were cut for export. They weren't processed in the
Speaker 1: United States. We were operating like a third world country
Speaker 1: in terms of our national forests exporting really high value trees,
Speaker 1: large diameter old growth trees, to send them to Japan,
Speaker 1: send them to Korea, and have to Japan and Korea
Speaker 1: process these into furniture in the musical instruments, pianos, even chapsticks, right,
Speaker 1: and then sell them back to us. It was crazy
Speaker 1: that we were letting other countries benefit from our forest resources.
Speaker 1: So that all came to an end. And Clinton was
Speaker 1: certainly instrumental during the whole spot at Owl God Squad
Speaker 1: proceedings and all of that background. Clinton was the one
Speaker 1: who said, you know, we've got to retain the remainder
Speaker 1: of our intact forest resources for all these reasons. And
Speaker 1: so you know, we've turned the corner on how the
Speaker 1: national forests are being managed for multiple uses, not just
Speaker 1: timber production. But now, of course Trump wants to prioritize
Speaker 1: what he's calling you a lumber emergency. Of course, I
Speaker 1: don't know how many You've lost track of the number
Speaker 1: of emergencies he's declared, but we've apparently got a timber
Speaker 1: emergency as well.
Speaker 2: So the Agriculture Secretary Brook Rollins, who slammed the roadless
Speaker 2: rule as absurd, said there's a timber emergency and they
Speaker 2: have to get more logs on trucks to comply with
Speaker 2: Trump's March order calling for expanded forest cutting to avoid
Speaker 2: importing wood products and reduce wildfire threats. Is there a
Speaker 2: timber emergency.
Speaker 1: No, there is certainly a demand for more timber from
Speaker 1: the forest products industry, from the lumber companies because they
Speaker 1: don't want to have to import lumber from Canada. We
Speaker 1: do import a lot from Canada. I mean, Manada has
Speaker 1: more forests than we do. And of course, now with
Speaker 1: tariffs imposed by Trump on Canadian imports, the cost of
Speaker 1: lumber from Canada is going to becoming more expensive, as
Speaker 1: is everything else from coffee to eggs. Right, So that
Speaker 1: is true. But the reason that there is a shortage
Speaker 1: of timber production in the United States is for three reasons.
Speaker 1: Number one, it is the labor shortage. Number two, it's
Speaker 1: the mills that used to process timber have closed. And
Speaker 1: number three is the supply chain for lumber products has
Speaker 1: become more complicated, you know, the transportation of logs and trees,
Speaker 1: you know, between the United States and Canada has become
Speaker 1: more complicated. So the reasons why the domestic production of
Speaker 1: lumber has declined has nothing to do with an emergency.
Speaker 1: We have plenty of timber and lumber. The question is
Speaker 1: at what cost? And if you want to increase us
Speaker 1: production of timber, the way to do that is to
Speaker 1: create a market for it and then create the labor.
Speaker 1: And also, by the way, have an agency, namely the
Speaker 1: Forest Service, with skilled silver culturists, the people that manage
Speaker 1: the forest. And of course Trump is cutting those positions.
Speaker 1: They've cut over two thousand Forest Service positions. When you
Speaker 1: do that, you can't do the planning, the management, the
Speaker 1: timber sales. So those are some of the reasons why
Speaker 1: if there's a shortage of domestic lumber on the market.
Speaker 1: The reasons are not because we're not logging old growth
Speaker 1: and roadless areas. The reasons lie elsewhere.
Speaker 2: And what would be the impact of rescinding this roadless rule.
Speaker 1: By the way, we should say something about what the
Speaker 1: roadless rule is and what it allows, because it addresses
Speaker 1: specifically this business about we need to cut these trees
Speaker 1: to manage wildfire. Right, So what the roadless rule allows
Speaker 1: is thinning of forests fuel reduction, which means you know,
Speaker 1: the small trees in the forest and prescribe burns. That's
Speaker 1: number one. Number two roadless areas have been roadless for
Speaker 1: over one hundred years, as I mentioned, and there hasn't
Speaker 1: been any intensive logging because they're so expensive to build
Speaker 1: and maintain. And the rule also reduces all of the litigation.
Speaker 1: I've been involved in defending the roadless Rule full disclosure
Speaker 1: back in two thousand and two in the Ninth Circuit
Speaker 1: Court of Appeals, and since then there've been over a
Speaker 1: dozen lawsuits. There's been all kinds of conflict in litigation
Speaker 1: over these areas, and so one of the reasons for
Speaker 1: the roadless rule is to say, well, let's put an
Speaker 1: end to these endless lawsuits and conflict over these areas.
Speaker 1: They're very popular with the public, that's why there's so
Speaker 1: much controversy in litigation, and this roadless rule was designed
Speaker 1: to put an end to that and get the Forest
Speaker 1: Service to focus on those areas of the National Forest
Speaker 1: where there is a history of commercial logging and you know,
Speaker 1: focus your efforts on increasing production if that's what we
Speaker 1: nationally think we need to do in those areas that
Speaker 1: are already roaded. And by the way, there are two
Speaker 1: one hundred and sixty five thousand miles of forest roads
Speaker 1: in the National Forest. Think about that. The entire interstate
Speaker 1: highway system is forty seven thousand miles, So you can
Speaker 1: do the math. You're talking about, you know, a huge
Speaker 1: multiple of roads already in the National Forest, and guess
Speaker 1: what the backlog of costs to either decommission as they say,
Speaker 1: these roads in other words, restore them to a natural environment,
Speaker 1: or just simply maintain them. The price tag for that
Speaker 1: is over eight billion dollars in FY twenty twenty three.
Speaker 1: So you know, the Forest Service doesn't eat and begin
Speaker 1: to have enough money to manage the roads they already
Speaker 1: have to either maintain them or decommission them. Right, So
Speaker 1: now you're talking about opening up all these new areas
Speaker 1: to road building with all the expense of that and
Speaker 1: the maintenance of that of those roads once they're built,
Speaker 1: and then you're going to access these areas that haven't
Speaker 1: been logged, haven't been commercially valuable enough to invest the
Speaker 1: money to log them. That's what this order is talking about.
Speaker 2: And the Forest Service is dealing with budget cuts and
Speaker 2: staffing shortages, so it may have problems just keeping up
Speaker 2: with the things it already has to do.
Speaker 1: Right, they don't have a budget. The budget they have
Speaker 1: for managing wildfires is the largest segment of their budget.
Speaker 1: It's over a billion dollars. Wildfires is definitely a problem.
Speaker 1: There's lots of reasons for that. We could have a
Speaker 1: whole program on it. Why there are so many wildfires,
Speaker 1: including of course climate change and global warming driven wildfires,
Speaker 1: but lots of reasons why. Building in the areas close
Speaker 1: to the forest interface is a reason for wildfires. But
Speaker 1: here's the thing about roads. When you build more roads,
Speaker 1: you're going to get more wildfires. The data is crystal
Speaker 1: clear on that. Why. Guess why, Because people are driving
Speaker 1: into these areas, these remote areas, and what are they doing.
Speaker 1: They're building campfires, aren't they And what do they do
Speaker 1: with campfires? Do they always always put them out?
Speaker 3: No?
Speaker 1: Ninety percent of wildfire ignition is human caused, ninety percent.
Speaker 1: That's the data. So you put roads into these areas,
Speaker 1: you're going to get more wildfires. That's clear from our
Speaker 1: history of dealing with wildfires, and the Forest Service would
Speaker 1: tell you that.
Speaker 2: Yeah. Forest Service research published during the first Jump administration
Speaker 2: show that more wildfires ignite near roads. Wildfire mitigation efforts
Speaker 2: have been more common in roadless areas than in the
Speaker 2: rest of the national forests. And roadless areas have no
Speaker 2: effect on wildfire burn rates. Coming up next on the
Speaker 2: Bloomberg Lawn Show, I'll continue this conversation with Professor Pat
Speaker 2: Parento of the Vermont Law and Graduate School. We'll talk
Speaker 2: about some of the litigation that can be expected if
Speaker 2: the roadless Rule is rescinded. I'm June Grosso. When you're
Speaker 2: listening to Bloomberg. The Trump administration wants to get rid
Speaker 2: of a rule that protects tens of millions of acres
Speaker 2: of national forest from road building and large scale logging,
Speaker 2: but its zealed to log will face a reality check
Speaker 2: from government downsizing, possible litigation, and even a soft timber market.
Speaker 2: The US Forest Service, which manages roadless areas, is grappling
Speaker 2: with budget cuts and staffing shortages. At the same time,
Speaker 2: environmental groups are gearing up for legal battles arguing the
Speaker 2: so called roadless Rule safeguards endangered species, clean water, and
Speaker 2: buy diversity. President Bill Clinton implemented the rule in the
Speaker 2: final weeks of his term, envisioning it as a way
Speaker 2: to protect endangered species and three hundred and fifty watersheds
Speaker 2: within national forests used for drinking water. From Alaska to
Speaker 2: Puerto Rico. Among the places the rule has preserved are
Speaker 2: parts of the world's largest coastal temperate rainforest in Alaska's
Speaker 2: Tongus National Forest, vast mountain ranges in central Idaho, the
Speaker 2: peaks and plateaus above Utah's Contested Barriers National Monument, and
Speaker 2: the Appalachian Forest in Virginia. But Agricultural Secretary Brook Rawlins
Speaker 2: has slammed the roadless rule as absurd and declared a
Speaker 2: timber emergency to get more logs on trucks and comply
Speaker 2: with Trump's March order calling for expanded forest cutting to
Speaker 2: avoid importing wood products and reduced wildfire threats. I've been
Speaker 2: talking to Professor Pat Parento of the Law and Graduate School.
Speaker 2: If they do rescind the rule, I mean, do you
Speaker 2: think that nothing much would happen at the beginning because
Speaker 2: the Forest Service doesn't have the money or the staff
Speaker 2: to start building roads.
Speaker 1: Well, first of all, I mean an attempt to repeal
Speaker 1: this roadless rule that, as I said, there's been over
Speaker 1: a dozen lawsuits. There'll be another one, several in fact,
Speaker 1: So the first thing you're going to have is another
Speaker 1: round of litigation over repealing the rule, and that'll involve
Speaker 1: the National Environmental Policy Act, the Endangered Species Act, the
Speaker 1: Administrative Procedure Act, the whole panoply of federal law will
Speaker 1: come into play, and it'll be litigated in many district
Speaker 1: courts around the country. Because everybody's got a favorite for us,
Speaker 1: they're going to defend to the death, not to the death,
Speaker 1: but they're going to defend vigorously. Right, So we're going
Speaker 1: to have a whole bunch of litigation over whether the
Speaker 1: repeal of the roadless rule is legitimate. And I predict
Speaker 1: they're going to be injunctions levied against the Forest Service
Speaker 1: when they try to sell timber from these areas. And
Speaker 1: then of course is the question of market so you know,
Speaker 1: if the companies have to build these roads, I don't
Speaker 1: think there's going to be very many of these areas
Speaker 1: that will be logged. One of the biggest ones that's
Speaker 1: been contentious is the Tongas National Forest in Alaska, and
Speaker 1: that's been back and forth between it's either exempt from
Speaker 1: the roadless rule or it's in the roadless rule. Currently
Speaker 1: it is in the roadless rule. So there's certainly part
Speaker 1: of the forests where the value of the timber in question.
Speaker 1: These old growth large trees is sufficient enough that the
Speaker 1: timber industry is going to want to fight over that
Speaker 1: and try to get access to those areas. But in
Speaker 1: terms of the fifty eight thousand acres around the country,
Speaker 1: including forests in the east right here in our own Vermont,
Speaker 1: the Green Mountain National Forests, or across the river in
Speaker 1: nor Hampshire the White Mountain National Forests. You know, these
Speaker 1: are areas that have roadless areas, and the timber in
Speaker 1: those areas just isn't going to be economically feasible. It's
Speaker 1: a log But some of these big western forest, yeah,
Speaker 1: there's probably going to be significant fights to get access
Speaker 1: to those areas.
Speaker 2: So you litigated this, as you mentioned. If they do
Speaker 2: rescind the roadless rule, what would some of the challenges
Speaker 2: be League.
Speaker 1: One, Well, you know, the National Forest Management Act requires
Speaker 1: that every forest have a plan, and because the roadless
Speaker 1: Rule has been in effect, you know, it's gone through
Speaker 1: as I say, different iterations, shall we say, as different
Speaker 1: administrations come and go. You know, the Clinton administration, then
Speaker 1: the Bush one administration, and then you had Bush two,
Speaker 1: and so you know it's gone back and forth in
Speaker 1: terms of the extent of the roadless rule and what
Speaker 1: forests we're in and out. But right now all of
Speaker 1: these areas are are protected as roadless and so the
Speaker 1: National Forest Management Act will be one of the principal
Speaker 1: laws because you have to comply with forest plans. And
Speaker 1: if the forest plan says there's no logging in these
Speaker 1: roadless areas, then there can't be any logging until you
Speaker 1: change the forest plan. That would be step number one. Well,
Speaker 1: to do that, you have to go through NEPA. You
Speaker 1: have to do another environmental assessment at least, if not
Speaker 1: an environmental impact statement. We've talked a lot about what's
Speaker 1: happening with NEFA. And even though you know the Trump
Speaker 1: administration is trying to limit the scope of NIPA and
Speaker 1: the Supreme Court as well, it still exists. It's still
Speaker 1: a law. It has to be complied with, and you
Speaker 1: can't just snap your fingers and say we're going to
Speaker 1: change a forest plan and we're going to write a
Speaker 1: two page environmental impact statement to do it. That's going
Speaker 1: to get challenged and overturned in court. Most of these
Speaker 1: areas contain really important critical habitat of a number of
Speaker 1: endangered species. Think Canada Links, think wolverine, Think grizzly bears.
Speaker 1: Think marbl mural ass think spotted owls. I could go
Speaker 1: on and on. These old girls, for uts are the
Speaker 1: last stronghold of many of our most high profile in
Speaker 1: endangered species, right, not just insects and butterflies, but you know,
Speaker 1: animals that people really care about and will fight for.
Speaker 1: So you know that's what you're looking at when you
Speaker 1: go after these areas, You're going to involve a whole
Speaker 1: splate of environmental laws, including, by the way, the Clean
Speaker 1: Water Act. Because when you road these areas, rode them,
Speaker 1: build roads in them, they erode, right, and sediment comes off,
Speaker 1: and sediment carries all kinds of other pollutants. If you
Speaker 1: think about, you know, the way we fight fires, We
Speaker 1: flood the landscape with not only pesticides, but herbicides and
Speaker 1: other fire retardant chemicals that are toxic. And there's all
Speaker 1: kinds of data about the fact that forests now have
Speaker 1: all kinds of these chemicals saturated into the sediment of
Speaker 1: these rivers coming out of the streams that are coming
Speaker 1: off these national forests and again down into the water
Speaker 1: supply systems for communities. So all kinds of laws come
Speaker 1: into play when you go after these roadless areas.
Speaker 2: The Agricultural Secretary made this announcement in June, and nothing's
Speaker 2: been done yet where edging into late August. Is it
Speaker 2: something that might just be put aside, although you also
Speaker 2: have the fact that the so called Big Beautiful Bill
Speaker 2: mandates that the Forest Service increased US timber sales by
Speaker 2: two hundred and fifty million board feet each year through
Speaker 2: twenty thirty four. That's an eight percent annual increase over
Speaker 2: twenty twenty three and a roughly seventy five percent cumulative
Speaker 2: spike in logging over the next nine years.
Speaker 1: Yeah. Well, you know, you can put those kinds of
Speaker 1: goals out there, the same thing with how many people
Speaker 1: were going to deport every year, And the truth is,
Speaker 1: the reality is you're not going to meet those quotas,
Speaker 1: the market isn't going to be there to meet those quotas,
Speaker 1: or the amount of litigation I'm describing is going to
Speaker 1: stretch out for years into whatever the next administration is
Speaker 1: going to be. And as I've said, you know, this
Speaker 1: roadless rule has been a bone of contention of political
Speaker 1: football for over twenty years, well over almost twenty five years.
Speaker 1: And so if it's not going to end. It's not
Speaker 1: going to stop with the Trump administration. They're not going
Speaker 1: to be able to road all these areas and get
Speaker 1: all the timber out of these areas. It's just not
Speaker 1: going to happen until there's another administration in power, maybe
Speaker 1: a different Congress in power. Who knows. But the point is,
Speaker 1: we don't know what the future of these areas are.
Speaker 1: Just because the Agriculture Secretary is making these sweeping pronouncements
Speaker 1: doesn't mean it's going to happen.
Speaker 2: Looking at this broader and as far as what steps
Speaker 2: the Trump administration has taken so far with regard to
Speaker 2: the environment, are they focusing on one area in particular
Speaker 2: or broader than that.
Speaker 1: We thought the focus was going to be climate and energy,
Speaker 1: and of course it certainly has been. But frankly, from
Speaker 1: what I see, it's across the board. There is no
Speaker 1: law that's safe from this administration, no environmental law, and
Speaker 1: you could broaden it beyond that the civil rights laws.
Speaker 1: But certainly, from my expertise, I've never seen anything like this.
Speaker 1: I've been doing this for fifty five years. I've seen conservative,
Speaker 1: you know, Republican administrations come and go, including the Reagan administration,
Speaker 1: and James Watt. I've never seen anything like this. They're
Speaker 1: leaving no stone unturned to deregulate and cripple the ability
Speaker 1: of federal agencies across the board to manage either public
Speaker 1: lands as we're talking about today, or public health with EPA,
Speaker 1: or energy supply with the Department of Energy. Nothing that
Speaker 1: this administration is doing is designed to strengthen programs that
Speaker 1: we have had now for many decades, to manage natural resources,
Speaker 1: manage our energy supply and energy demand, to you know,
Speaker 1: create affordable sources of either timber as we're talking about today,
Speaker 1: or energy if we wanted to talk about that. The
Speaker 1: market and the technology is pointing towards cleaner, greener systems
Speaker 1: of producing whatever goods and services we need. This administration
Speaker 1: is rolling the clock back across the board.
Speaker 2: That's what I see, and that usually means even more litigation.
Speaker 2: Thanks so much for joining me today, Pat, that's professor
Speaker 2: Pat Parento of the Vermont Law and Graduate School.
Speaker 1: This is what democracy look side. This is what democracy
Speaker 1: looks side.
Speaker 2: There were redistricting rallies in Chicago, Illinois, and Austin, Texas
Speaker 2: over the weekend. Protests against Texas Republicans Plan to redraw
Speaker 2: the state's congressional maps to create five new Republican seats,
Speaker 2: and in support of Texas Democrat who disrupted a special
Speaker 2: session in the legislature and fled to Chicago to oppose
Speaker 2: the unusual mid decade registricting called for by President Trump.
Speaker 3: It's important for us to show up because we kind
Speaker 3: of started this battle.
Speaker 2: I guess trying to wake America up. Everybody needs to
Speaker 2: know what's happening. Everyone needs to see what we're fighting for.
Speaker 2: Texas Democrats ran out the clock in the special legislative session,
Speaker 2: but two hours later Governor Greg Abbott called a second
Speaker 2: session to redraw the maps, which would target key districts
Speaker 2: represented by Latino Democrats.
Speaker 3: We hold a lot more bullets in our belt that
Speaker 3: we will be ready to use if we need to.
Speaker 2: So after two weeks, the Democratic lawmakers returned to Texas
Speaker 2: and say the next fight will be in the courts,
Speaker 2: where they will challenge the new maps as being racially gerrymandered.
Speaker 2: Onny Blair is with the Texas ACLU. Governor Abbott and
Speaker 2: Attorney General Ken Paxton are following the President's agenda to
Speaker 2: dilute the electoral power of black and Brown Texans. The
Speaker 2: redistricting standoff has led to a national fight for control
Speaker 2: of Congress ahead of the twenty twenty six midterms, and today,
Speaker 2: as Texas Republicans restarted the plan to give themselves five
Speaker 2: more seats, California Democrats took their first official steps to
Speaker 2: create five new House seats for their party by adopting
Speaker 2: a measure asking voters to approve new boundaries for twenty
Speaker 2: twenty six, twenty twenty eight, and twenty thirty, an aggressive
Speaker 2: move maneuvered by California Governor Gavin Newsom.
Speaker 1: It's not complicated.
Speaker 2: We're doing this in reaction to a president of United
Speaker 2: States that called a sitting governor of the state of
Speaker 2: Texas and said, find me five seats. My guest is
Speaker 2: elections law expert Richard Brefalt, a professor at Columbia Law School.
Speaker 2: Rich does seem like there are any other impediments to
Speaker 2: Texas Republicans passing the new maps.
Speaker 3: I mean, I think that after it gets enacted, they'll
Speaker 3: likely be some lawsuits challenge at least some of the
Speaker 3: district changes under the voting rights Sack, because I think
Speaker 3: some of them are going to be impacted what had
Speaker 3: been either majority of minority districts or districts that were
Speaker 3: electing minority elected Congress members. So I think there might
Speaker 3: conceivably be some challenges to the map under the Voting
Speaker 3: Rights Actor, under the Constitution for racial bias. Not clear
Speaker 3: what would happen with those, not clear how quickly they
Speaker 3: would go forward, whether they would go forward fast enough
Speaker 3: in order to stop these changes from going into effect
Speaker 3: next year. I don't think there's much else that can happen.
Speaker 3: If the Democrats, I guess they've been back in one
Speaker 3: House already, or noough of them. I think it passed
Speaker 3: one house now. I think it's the question about the
Speaker 3: other House.
Speaker 2: In order to challenge a map under the Voting Rights Act,
Speaker 2: what has to be shown? Because the Democrats have said
Speaker 2: that some of the districts being targeted by Republicans are
Speaker 2: those with a high percentage of Latinos or other minority.
Speaker 3: Groups, they'd have to show that there was a pattern
Speaker 3: of racially polarized voting and that under the new map,
Speaker 3: minorities in this case, Latinos would be underrepresented relative to
Speaker 3: what they would be or what they are now under
Speaker 3: the current map. And then you'd have to tie that
Speaker 3: into other aspects of social and economic and political life
Speaker 3: in Texas to stay that Latinos are under represented politically
Speaker 3: and need to have the seats in order to get
Speaker 3: fair representation. But the main things they would have to
Speaker 3: show is the existence of racially polarized voting, that Anglos
Speaker 3: and Latinos vote differently, and that changing the map this
Speaker 3: way would make it harder for Latino voters to get
Speaker 3: fair representation.
Speaker 2: And how does it fit in that their last map
Speaker 2: is still being litigated.
Speaker 3: Well, it's weird because of course that map was being
Speaker 3: challenged as unfair and the state was defending it. I mean,
Speaker 3: you could conceivably have made more majority minority districts. Actually,
Speaker 3: even the map that's about to be replaced has a
Speaker 3: pretty strong Republican tilt. I mean, Texas is a Republican state,
Speaker 3: but it's like a three to two Republican state, and
Speaker 3: the current map is two to one, and I think
Speaker 3: the resulting map would make it more like five to
Speaker 3: one or four to one. So I think that would
Speaker 3: be the argument, and it might not affect every district.
Speaker 3: In other words, the districts which are primarily affecting white Democrats,
Speaker 3: they probably would not have a voting right sect claim.
Speaker 3: But the districts they make it harder for Latino Democratic
Speaker 3: representatives to be relected. I think they would be able
Speaker 3: to make the claim, whether they win or not.
Speaker 2: A separate question, do courts put the new maps on
Speaker 2: hole while the litigation is going on.
Speaker 3: That's a great question, because the Supreme Court has this
Speaker 3: doctrine that basically says that courts should not change things
Speaker 3: too close to an election. You know, and we don't
Speaker 3: know what too close to an election is, but I
Speaker 3: guess maybe it'll be primaries in March. So we're beginning
Speaker 3: to get close to the election. But the question is
Speaker 3: what's the status quo. Is the status quo whether the
Speaker 3: legislature passes, in which case, if you apply that principle,
Speaker 3: courts should not intervene. Or is the status quo the
Speaker 3: maps that are currently in existence, in which case it
Speaker 3: would be appropriate to put the new maps on home
Speaker 3: so called the Percell principle. After a Supreme Court case
Speaker 3: of about twenty years ago, again the Supreme Court said
Speaker 3: lower federal courts should not intervene in election disputes too
Speaker 3: close to an election. There's a general question of what's
Speaker 3: too close to an election, and they've kind of moved
Speaker 3: that up and up. But the question that you're asking about,
Speaker 3: what does the intervention. Is the intervention stopping a now
Speaker 3: legally adopted map or is the intervention preventing the disruption
Speaker 3: of the pre existing map? And that's a great question.
Speaker 3: I don't know the answer to that.
Speaker 2: Texas Republicans said, well, there are a lot of states,
Speaker 2: and I think Massachusetts was one that are more Gerrymander
Speaker 2: than Texas is where there are so many Republicans and
Speaker 2: they don't have any representation. I mean, is that true?
Speaker 3: Massachusetts is the largest state which has a single party delegation.
Speaker 3: That is said, all the representatives in Massachusetts are Democrats.
Speaker 3: Like think that's ten out of ten. The difference is
Speaker 3: that in Massachusetts the Democrats and Republicans are fairly evenly spread,
Speaker 3: in other words, the Democratic majority throughout the state. There
Speaker 3: are not big Republican pockets that would be able to
Speaker 3: win a district under differently drawn maps. That's different from
Speaker 3: places like Texas or Ohio or Indiana where they're talking
Speaker 3: about redistricting and re redistricting, where there are Democratic pockets
Speaker 3: big enough to hold multiple seats, but if they get fragmented, fractured,
Speaker 3: and divided up into Republican areas, then they get no representation.
Speaker 3: So it is true. If Massachusetts was done I don't
Speaker 3: know on a proportional representation basis, they probably could be
Speaker 3: two or three Republican seats out of ten. But because
Speaker 3: it's done on as all of our districts have done
Speaker 3: single mean re districts, there is no Republican area left
Speaker 3: in Massachusetts, which I think explains why without gerrymandering, Massachusetts
Speaker 3: has an entirely democratic delegation.
Speaker 2: You mentioned some other states, I mean, do we know
Speaker 2: if their maps make it possible for them to redistrict
Speaker 2: in a way that Texas is.
Speaker 3: I mean, I think in Indiana and in Missouri, we're
Speaker 3: they talking about there's only like one Democrat or two
Speaker 3: Democrats left in the state, and I think in Missouri
Speaker 3: they would basically be either wiping out or merely wiping
Speaker 3: out entirely democratic representation. And the way you do it
Speaker 3: is you begin to fragment it and you like draw
Speaker 3: slices of the pie. There's those district in Saint Louis
Speaker 3: and attach it to suburban districts which are a majority Republican.
Speaker 3: I'm not sure, it's just targeting. And similarly in Indiana,
Speaker 3: I think there's a district in northern Indiana which is
Speaker 3: in a more democratic area. If you fragmented enough people
Speaker 3: do this call it cracking. If you crack the democratic
Speaker 3: population and you put the little slices of it in
Speaker 3: the different districts, you can get rid of a democratic
Speaker 3: district which would otherwise be kind of a normally.
Speaker 2: Shaped California Democrats are moving forward with their attempt to
Speaker 2: redraw congressional maps. Are there any foreseeable legal problems there?
Speaker 3: I think the problem with their maps, of course, is
Speaker 3: getting them adopted. I mean I haven't looked at the
Speaker 3: maps in terms of whether there would be any legal
Speaker 3: challenges to them under federal law. I mean, they're obviously
Speaker 3: a federal law. There are no gerrymandering challenges, and I
Speaker 3: wouldn't expect there would be any voting right fact or
Speaker 3: racial discrimination challenges. Now the problem is that California adopted
Speaker 3: a constitucial amendment that created an independent districting process. In
Speaker 3: order to adopt this map, they and effect have to
Speaker 3: go back to the voters and then then their constitution.
Speaker 3: My sense is that the real issue in California is
Speaker 3: how much are the voters really willing to do this?
Speaker 3: You know, are the voters going to be as part
Speaker 3: as in as their elected officials, or the voters going
Speaker 3: to say, you know, we like the idea of an
Speaker 3: independent system and we want.
Speaker 2: To keep it, but it's a temporary fix. It will
Speaker 2: go back to an independent system. Right.
Speaker 3: There's supposed to be a one shot, and I think
Speaker 3: the way the governor phrases it, it's like it's entirely a
Speaker 3: different tat for what Texas is doing. And it does
Speaker 3: get to kind of a deeper problem with reform political
Speaker 3: form of the United States is that we're doing a
Speaker 3: lot of this on a state by state basis, but
Speaker 3: Congress is a national legislature, and that a lot of
Speaker 3: the states that have reformed their processes are democratic states.
Speaker 3: Those republican states that reform their processes, one set of
Speaker 3: states that are gerrymandering, and one set of states don't,
Speaker 3: and that that just helps the jerrymanderers. It does kind
Speaker 3: of underscore the difficulty of doing reform one state at
Speaker 3: a time.
Speaker 2: New York the governor keeps talking or has talked about it,
Speaker 2: and the Illinois governor has talked about it, but I
Speaker 2: haven't heard of any movement actually do.
Speaker 3: Honestly, I don't. I think in New York this state
Speaker 3: constitution is different from the California one in that you
Speaker 3: can't put an amendment on the ballot unless it's been
Speaker 3: passed by two separately elected legislatures, and so basically it's
Speaker 3: a slow down of the process. This could not be
Speaker 3: done even if the legislature this year passes it in
Speaker 3: the fall of twenty twenty five, you would have to
Speaker 3: wait until after the twenty twenty six elect for the
Speaker 3: legislature in the beginning of twenty twenty seven to pass
Speaker 3: an amendment or to pass a new map or something,
Speaker 3: and then it would go to the voters, but it
Speaker 3: wouldn't be effective until the twenty twenty eight elections.
Speaker 2: Well, then, it seems like Democrats in New York have
Speaker 2: no options before the twenty twenty six midterms. I'm not
Speaker 2: sure what's happening in Illinois, and even Maryland has been
Speaker 2: mentioned by Democrats as a possibility. So we'll see. Thanks
Speaker 2: so much, rich that's Professor Richard Brfault of Columbia Law School,
Speaker 2: And that's it for this edition of the Bloomberg Law Show.
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