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

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Speaker 2: The Dominican community, Edwick Comband, African American community, Italian community,

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Speaker 2: the Irish community.

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Speaker 3: All I kept.

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Speaker 2: Hearing was Edwick Cobban. Edwick Coban that he was the

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Speaker 2: ripe person to be the first Deputy Commissioner and to

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Speaker 2: ascend to the position of being the police Commissioner of

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Speaker 2: the City of New York.

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Speaker 4: On Monday, New York City Mayor Eric Adams officially introduced

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Speaker 4: Edward Caban as the city's first Latino police Commissioner, following

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Speaker 4: former Commissioner Kei Chon Sewell's sudden departure last month. The

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Speaker 4: ceremony took place at the Bronx Precinct, where Caban began

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Speaker 4: his law enforcement career more than three decades ago as

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Speaker 4: a police officer.

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Speaker 5: A young Puerto Rican kid from Parkchester standing on a

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Speaker 5: foot post in the South Bronx. Just like thousands who

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Speaker 5: came before me and thousands who have.

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Speaker 4: Come after me, Commissioner Caban will lead the nation's largest

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Speaker 4: police department at a critical time.

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Speaker 5: Together, we will build upon our successes and continue to

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Speaker 5: drive down crime and approve the quality of life. In

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Speaker 5: all communities.

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Speaker 4: Joining me is an expert on policing, Jeffrey Fagan, a

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Speaker 4: professor at Columbia Law School. This is a historic appointment.

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Speaker 4: Tell us about the new commissioner.

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Speaker 1: He's held command posts in the department for many years,

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Speaker 1: experienced both at the patrol level and up through the

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Speaker 1: ranks to the Managaria level and the executive level, so

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Speaker 1: he certainly has the experience and qualifications for the job.

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Speaker 4: Latino officers make up the second largest demographic group after

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Speaker 4: white officers in the department, So how important is it

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Speaker 4: that he's the first Latino commissioner.

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Speaker 1: Well, I think it has important expressive value showing a

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Speaker 1: commitment to the Latino population of the city. But beyond that,

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Speaker 1: I don't know there is aarticular significance. There are Patino

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Speaker 1: officers in the department, but there are also many other officers,

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Speaker 1: so having them, at least at this stage historically get

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Speaker 1: representation at the command ranks is an important step.

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Speaker 4: Is this a critical time for the police department.

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Speaker 1: It's always a critical time for the police department. We're

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Speaker 1: just coming off a homicide epidemic that has lasted for

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Speaker 1: roughly two years, and although homicides and shootings are going

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Speaker 1: down quite dramatically, both in New York and the rest

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Speaker 1: of the country. It still is at a level that

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Speaker 1: is of concern to the public. So it's a very

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Speaker 1: fraught time for the department. The department has suffered losses

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Speaker 1: through retirements. They haven't been recruiting quite as well. I

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Speaker 1: know that they're struggling to put into place recruitment and

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Speaker 1: I guess policy steps that would make the job more attractive.

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Speaker 1: And there are trust issues within the communities going back

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Speaker 1: to the stop and frisk here, they're still living with.

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Speaker 1: They're living with the legacies of stop and frisk, which

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Speaker 1: sold a lot of distrust in the non white communities

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Speaker 1: of the city.

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Speaker 4: Some criticize the department and say under Mayor Adams has

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Speaker 4: brought back more aggressive law enforcement strategies you were referring

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Speaker 4: to that fell out of favor in recent years.

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Speaker 1: The department is returning to the aggressive police tactics that

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Speaker 1: got them into trouble in federal court. The federal court,

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Speaker 1: as you know, in twenty thirteen in the Floyd case,

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Speaker 1: found them to be in violation of both fourth and

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Speaker 1: fourteenth Amendment constitutional standards, meaning racially disparate policing and also

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Speaker 1: unconstitutional searches and seizures. They are returning to that policy,

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Speaker 1: and some would argue that they've never abandoned the policy.

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Speaker 1: One of the things that was characteristic of the last

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Speaker 1: say decade has been that they have stopped recording the

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Speaker 1: number of stops. That nobody really knows the number of

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Speaker 1: stops that they're making, so it's really hard to gauge

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Speaker 1: whether they're in compliance with the federal Court order, And

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Speaker 1: because there's no strong data on the number of stops,

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Speaker 1: we really can't tell the extent of which they are

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Speaker 1: still in violation of the Federal Court order. But the

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Speaker 1: most recent assessments by the Federal Court Monitor shows that

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Speaker 1: in the new see on your neighborhood safety teams, they're

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Speaker 1: still in violation of both the fourth and fourteenth Amendments.

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Speaker 1: So I think there's a real problem gaining the trust

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Speaker 1: of the community, even at a time when people want

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Speaker 1: effective policing, but they also want policing that's responsive to

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Speaker 1: the communities and the needs of the communities beyond just

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Speaker 1: simply the presidence of the police. So it's worrisome that

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Speaker 1: he's inheriting a department where they don't seem to be

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Speaker 1: able to cure a longstanding set of racial disparities and

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Speaker 1: constitutional problems that date back over twenty years to the

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Speaker 1: late nineteen nineties and through the decade of the two thousands.

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Speaker 4: Mayor Adams renamed those units the anti crime units neighborhood

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Speaker 4: safety teams. But as you mentioned, a federal court appointed

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Speaker 4: monitor found in June that they stopped, frisked, and searched

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Speaker 4: too many people unlawfully, in almost all of them people

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Speaker 4: of color exactly.

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Speaker 1: So one way to interpret those data is that progress

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Speaker 1: has not been made since the federal court monitor was

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Speaker 1: put into place following the Floyd opinion in August of

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Speaker 1: twenty thirteen. So we're coming up on the tenth anniversary

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Speaker 1: of the Floyd opinion, and it seems that the same

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Speaker 1: problems are persisting in the policing model that is put

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Speaker 1: in place, I guess by his predecessors. And now he's

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Speaker 1: inheriting and doesn't seem to have made any statements suggesting

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Speaker 1: he's going to rethink it.

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Speaker 4: Well, when the court ordered monitor finds that that there

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Speaker 4: is unlawful policing as she described it, I mean, what happened,

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Speaker 4: is nothing done about it?

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Speaker 1: She will have to go to court. She's issued a report.

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Speaker 1: The reports in the public sphere. Everyone can read it

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Speaker 1: and comment on the details. I think it's a fairly

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Speaker 1: good report methodologically and also conceptually. So she's issued a report,

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Speaker 1: she's issued a challenge through the report to the federal

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Speaker 1: court saying there are stiller problems. The federal court has

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Speaker 1: to ask the police department to submit a plan or

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Speaker 1: respond to the report and say how do you plan

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Speaker 1: to remedy this and how would you reduce the risk

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Speaker 1: of disparities in the levels of unconstitutional policing. If the

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Speaker 1: department does not respond, then the federal monitor can seek

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Speaker 1: a contempt of court order against the police department, and

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Speaker 1: then the police department will be under even stronger requirements

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Speaker 1: to remedy the situation.

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Speaker 4: Mayor Adams ran as a law and order candidate, and

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Speaker 4: you know, former police captain. Do you think he feels

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Speaker 4: he has a mandate from the public, you know, for

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Speaker 4: a strong police force.

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Speaker 1: Well, you know, he said he's going to return to

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Speaker 1: the policies that he believed were effective. Whether those policies

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Speaker 1: were effective is something that's been debated, and there's really

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Speaker 1: no consensus as to whether those policies were responsible for

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Speaker 1: the dramatic crime drop in New York from over the

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Speaker 1: last twenty years up into the pandemic. What he did

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Speaker 1: say is we're going to go back and reinstitute those policies,

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Speaker 1: but we're going to do it in a better way. Well,

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Speaker 1: so far he hasn't been able to do it in

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Speaker 1: a better way. And again, as the Federal Court Monitor reported,

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Speaker 1: the same problems persisted now that persisted ten years ago.

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Speaker 4: So what do you think the new police commissioner can

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Speaker 4: do about it? Because I understand that Adams is very

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Speaker 4: shall we say, hands on with decisions in the police department.

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Speaker 1: You anticipated my response to In New York, certainly under

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Speaker 1: Mayor Adams, there's only one police commissioner and he's it.

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Speaker 1: Everyone else serves to execute his policies. The policies that

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Speaker 1: were put in place under the previous mayor regime by

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Speaker 1: three different commissioners, going back to Braddon and then O'Neill

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Speaker 1: and then dermot Che they were designed by those commissioners

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Speaker 1: independently of the mayor, and in fact, often in opposition

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Speaker 1: is what the mayor Deblossio might have done himself. So

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Speaker 1: I think the history of autonomy for the police department

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Speaker 1: from the political structure is well understood. Sometimes that works

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Speaker 1: to the benefit of policing. Sometimes that works to the

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Speaker 1: detriment of the public. We saw that during the stop

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Speaker 1: in frisk era under Commissioner Kelly. But I don't know

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Speaker 1: what the latitude is going to be for Commissioner Kaban

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Speaker 1: to reform or change the process that's been put in place.

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Speaker 1: I think it's a campaign promise from Adams and he's

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Speaker 1: going to be hard pressed to deviate from implementing them

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Speaker 1: or addressing that promise.

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Speaker 4: So, the first female police commissioner resigned after only eighteen months,

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Speaker 4: and she didn't give a reason why, but reportedly she

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Speaker 4: had far less freedom than prior commissioners to make promotions

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Speaker 4: and appoint our own team because she was being micromanaged, and.

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Speaker 1: She had far less latitude to discipline officers. I think

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Speaker 1: the facts speak for themselves, and she really didn't have autonomy.

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Speaker 1: She had to clear everything through Deputy Mayor, Deputy Mayor Banks,

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Speaker 1: and ultimately Deputy Mayor Banks and Mayor Adams weighed in

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Speaker 1: on her performance. She did not have the latitude, She

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Speaker 1: did not have the independence that I think any police

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Speaker 1: commissioner would demand with respect to those two things. If

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Speaker 1: you have to manage the department with fifty thousand employees

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Speaker 1: and thirty thousand patrol officers or more, you need to

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Speaker 1: have some ability to hands on manage what goes on

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Speaker 1: in that department, and that includes promotions and discipline, promotions

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Speaker 1: of people to command situate to command positions, and discipline

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Speaker 1: of officers who violate both internal policy and the law.

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Speaker 1: And if she didn't have the ability to do either

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Speaker 1: one of those two things, then it's hard to say

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Speaker 1: what her ambit was, and so it made sense for

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Speaker 1: her to resign. It's unfortunate. She was deeply popular with

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Speaker 1: the police department and with the troops at a time

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Speaker 1: when morale was really pretty low. So Mary Adams put

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Speaker 1: her into a situation that was untenable and much to

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Speaker 1: his own detriment. Now we don't know if Commissioner Kaban

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Speaker 1: can rectify that situation. My guess is that he will

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Speaker 1: enjoy some support from the department from the rank and file,

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Speaker 1: because he did come up through the ranks. But I

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Speaker 1: think it remains to be seen how he implements policies

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Speaker 1: and whether or not they're consistent with what the officers

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Speaker 1: are thinking and feeling is the best interest of the city.

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Speaker 4: Speaking about morale, there's also a staffing crisis that he's

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Speaker 4: going to have to reverse. How do you improve morale.

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Speaker 1: Well, I think it's ironic that this is a problem,

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Speaker 1: because say, I think Commissioner Sewell had taken great steps

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Speaker 1: to improve or ole. She was very much respected and

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Speaker 1: admired by the rank and file, in other words, patrol

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Speaker 1: officers and through the ranks of the department. What he

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Speaker 1: can do, what Commissioner Kaban can do to improve on

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Speaker 1: that remains to be seen. She was a very visible

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Speaker 1: presence at all the many different both ceremonial and more

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Speaker 1: strategic events. She was always on the scene when there

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Speaker 1: was a good officer injured. She was present at ceremonies,

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Speaker 1: hirings and promotions and so on. She demonstrated her support

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Speaker 1: for the officers. I think the fact that she didn't

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Speaker 1: discipline officers probably earned some respect for her, although that's

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Speaker 1: not a very healthy waive to get respect. Whether Caban

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Speaker 1: can repeat that, it remains to be seen. He's not

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Speaker 1: been a public figure during his time in the police department,

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Speaker 1: so it's tried to predict how he's going to perform

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Speaker 1: on the job. Sewell was an unknown and certainly made

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Speaker 1: her presence in her style and her I guess her

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Speaker 1: politics known through her actions. But we don't really know

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Speaker 1: much about how Kabam will do in a job requires

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Speaker 1: him to reach down to the lowest ranks of the officers.

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Speaker 1: But he certainly did have a very high ranking position

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Speaker 1: with respect to command, and so he was known to

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Speaker 1: the officers. Whether they will respond to him in the

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Speaker 1: way they responded to Sewell, we really don't know yet.

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Speaker 4: Apparently he had some run ins with department oversight agencies

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Speaker 4: like the Civilian Complaint Review Board, and now he's going

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Speaker 4: to have to handle officer misconduct. Tell us about the

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Speaker 4: disciplinary matrix and whether there's a dispute over it.

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Speaker 1: They're trying to revise the matrix. Now I understand there's

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Speaker 1: a series of meanings that have been going on to

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Speaker 1: reconstitute the matrix. The matrix is essentially a grid that

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Speaker 1: says for certain kinds of violations, you will receive certain

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Speaker 1: types of punishments. So it becomes fairly predictable, kind of

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Speaker 1: like a sensing grid that the criminal offenders face when

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Speaker 1: they're going to go to court. So it makes it

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Speaker 1: standard and uniform, and so officers kind of know what

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Speaker 1: to expect if they're found who have violated department policies

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Speaker 1: or violated the criminal civil law. The problem with the

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Speaker 1: matrix wasn't so much the substance of the matrix as

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Speaker 1: it was the failure to implement the matrix. I don't

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Speaker 1: think that there was a fair chance or a fair

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Speaker 1: hearing on the matrix. I don't think we have enough

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Speaker 1: data on discipline because the department was reluctant to issue

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Speaker 1: any discipline. It could be that the matrix is perfectly

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Speaker 1: fine that all it takes to make it effective is

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Speaker 1: some political will on the part of the leadership of

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Speaker 1: the police department seed use the matrix and apply its standards.

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Speaker 1: So we really don't know.

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Speaker 4: CABAN will also have to keep the crime rates down.

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Speaker 4: How much do the police have to do with crime rates?

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Speaker 4: And how much is it cyclical or due to outside factors.

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Speaker 1: Police have some effect on crime, that's indisputable. How much

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Speaker 1: of an effect is highly disputed. Some people think it's important,

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Speaker 1: some people think it's relatively minor compared to larger political

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Speaker 1: and economic and social forces. One way to think about

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Speaker 1: policing and crime is to think about at the experience

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Speaker 1: of the pandemic and the homicide and shooting waves and

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Speaker 1: crime violent crime waves that happened during the very pandemic,

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Speaker 1: and to compare that to prior period. So, for example,

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Speaker 1: thirty years ago, during the crack epidemic, we had the

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Speaker 1: same spike homicides increased. It was the record level of

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Speaker 1: homicides in the city was in nineteen ninety one and

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Speaker 1: lasted a couple of years starting in nineteen ninety when

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Speaker 1: they went down about ten percent and kept going down

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Speaker 1: through the two thousands. So one way to think about

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Speaker 1: this is that homicide goes in cyclical waves. We had

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Speaker 1: a wave in the sixties, we had a wave in

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Speaker 1: the late seventies and early eighties, we had another wave

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Speaker 1: through the crack epidemic in the early nineties, and we

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Speaker 1: have another wave now and throughout each one of these,

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Speaker 1: homicide goes up and homicide goes down, and shootings go

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Speaker 1: up and shootings go down. It seems to be sort

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Speaker 1: of a natural process, and it doesn't really matter what

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Speaker 1: steps the police department takes and puts into place, because

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Speaker 1: these cycles seem to recurrence with some kind of regular basis.

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Speaker 1: So how much credit can the police department really take

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Speaker 1: for reducing crime when we've had the same experience before

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Speaker 1: and the same policies were put into place and no

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Speaker 1: new so there were new policies now, And let me

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Speaker 1: think about we've seen these cycles come and go before.

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Speaker 1: Whatever policies were put into place in previous cycles don't

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Speaker 1: seem to have stopped another cycle from developing some period

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Speaker 1: of time later. So it's hard to say that the

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Speaker 1: police deserve credit for bringing the comicide rates down. And

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Speaker 1: also the homicide rates are down all over the country

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Speaker 1: would suggest there's something more of a let's say, a

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Speaker 1: natural process to that rise and fall or that epidemic model,

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Speaker 1: And so how much police can take credit for that

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Speaker 1: in one city or even a couple of cities, when

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Speaker 1: policing varies in substance from one city to the next,

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Speaker 1: and just simply are repeating a historic process.

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Speaker 4: Is there a problem with the police department and transparency.

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Speaker 1: I don't think the department really cooperates with government. They

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Speaker 1: hauled information really closely. There's a controversy right now about

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Speaker 1: releasing reports of officers conduct who have been accused of

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Speaker 1: racial bias in their everyday activities and the department has

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Speaker 1: refused to release those records, even though discipline records are

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Speaker 1: now publicly available, but they won't dig a little bit

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Speaker 1: deeper and release those. So I think there's something about

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Speaker 1: transparency that the police department historically hasn't been great at.

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Speaker 1: But now there continue this policy of holding information close

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Speaker 1: and not allowing the public to completely see internally what

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Speaker 1: they're doing, and certainly when there are matters of legality involved.

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Speaker 1: For example, in the bias reports, we still don't have

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Speaker 1: a firm grasp over the number of street stops there are.

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Speaker 1: Despite the Monitor's report and despite the data that was

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Speaker 1: given to the Monitor to evaluate the neighborhood safety teams,

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Speaker 1: we really don't have a firm grip over the number

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Speaker 1: of stops that are happening on the street. Arrests are

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Speaker 1: a different matter. We understand the number of arrests because

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Speaker 1: the reports are mandated and they're actually quite detailed. They

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Speaker 1: involve questions of conviction and sensing. But for these stops,

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Speaker 1: most of which don't result in any kind of legal action,

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Speaker 1: we really don't know the number of stops that are

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Speaker 1: taking place. So I think there's a question of transparency

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Speaker 1: that's important and I think also that there's been criticism

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Speaker 1: of the level of cooperation the police department with investigations

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Speaker 1: both by its own and investigative body in the city,

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Speaker 1: the Office of the Inspector General on the George Floyd protests,

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Speaker 1: and also with the state investigation as well. Of course,

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Speaker 1: it's uncomfortable to be investigated, but there has to be

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Speaker 1: a certain amount of cooperation and transparency in order to

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Speaker 1: restore the public trust after those events have taken place.

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Speaker 1: And just this week we understand now that one of

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Speaker 1: the highest settlements in the history of litigation against the

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Speaker 1: NYPD in the city has just been confirmed.

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Speaker 4: Commissioner Caban certainly has his work cut out for him.

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Speaker 4: Thanks so much for being on the show. That's Jeffrey Fagan,

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Speaker 4: a professor at Columbia Law School.

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Speaker 3: It was a flawed process that was an acceptable, undemocratic,

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Speaker 3: and unconscionable, and the courts correctly concluded by sending the

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Speaker 3: ability for the congressional lines to be drawn for the

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Speaker 3: balance of the decade back to the independent redistrict and commission.

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Speaker 4: New York Congressman Hakim Jeffries, the minority leader in the House,

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Speaker 4: praised a state Appellate court decision that the state congressional

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Speaker 4: maps be redrawn, or ruling that could benefit Democrats in

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Speaker 4: their twenty twenty four fight to regain control of the House.

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Speaker 4: The Appellate Division reversed a lower court and directed a

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Speaker 4: state redistricting commission to start work on new proposed state

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Speaker 4: congressional lines. The commission's first set of lines were rejected,

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Speaker 4: and a lawsuit led to the twenty twenty two lines

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Speaker 4: being drawn by a court appointed expert, whom Jeffries called

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Speaker 4: a quote unelected out of state special master handpicked by

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Speaker 4: an extreme right wing judge. Republicans immediately announced their decision

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Speaker 4: to appeal, which will leave the final decision on the

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Speaker 4: maps to the state's highest court. Joining me is elections

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Speaker 4: law expert Richard Brfald, a professor at Columbia Law School. So,

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Speaker 4: before we get into what the court ruled on, tell

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Speaker 4: us about the history of New York's congressional map, how

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Speaker 4: it got to where it is.

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Speaker 6: So in the late twenty tens, the New York voters

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Speaker 6: amended the state constitution to create a new redistricting process

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Speaker 6: that would involve what was called an independent registricting commission,

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Speaker 6: not really all that independent. It was a bipartisan commission

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Speaker 6: which was charged with taking hearings, collecting data, and then

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Speaker 6: submitting a plan to the legislature. The legislature is supposed

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Speaker 6: to the right to pass on it, just with a

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Speaker 6: simple upper down vote. If they voted no, the commission

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Speaker 6: got a second shot at submitting a plan to the

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Speaker 6: legislature upper down vote, the legislature voted no. The legislature

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Speaker 6: could then write its own plans, but supposedly shaped by

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Speaker 6: the commission. Twenty twenty two was the first time this

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Speaker 6: plan with this system was going to go into effect.

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Speaker 6: The problem was that the independent commission, really a bipartisan commission,

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Speaker 6: deadlocked on partisan grounds. Instead of submitting one plan, they

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Speaker 6: submitted two plans that each only had half the votes

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Speaker 6: of the commission. The legislature rejected that. The commission then

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Speaker 6: was so deadlocked it wasn't unable to submit the second plan.

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Speaker 6: At that point, the legislature, which it was controlled by

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Speaker 6: Democrats in both houses, wrote its own plan, which was

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Speaker 6: by most readings pretty much tilted in favor of the

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Speaker 6: Democrats and probably increased the likelihood that the Democrats would

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Speaker 6: pick up some districts. The governor signed that that was

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Speaker 6: immediately sued, and the Republicans who sued rather smartly picked

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Speaker 6: a state court in Upstate New York with a Republican

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Speaker 6: judge who struck down the plan. It went through the

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Speaker 6: appeals process, and ultimately the Near Court of Appeals, in

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Speaker 6: a divided vote, concluded both that the plan was unconstitutionally

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Speaker 6: adopted because the proper process hadn't been followed. The Independary

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Speaker 6: District Commission did not submit a second plan, and also

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Speaker 6: the plan the legislature adopted was a partisan gerrymander in

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Speaker 6: violation of the state constitution. They then kicked it back

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Speaker 6: to the upstate judge who appointed a special master to

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Speaker 6: drop a map. That map was drawn up and created

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Speaker 6: a lot of competitive districts, which was unapproved by the judge,

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Speaker 6: and that was the plan that was used in twenty

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Speaker 6: twenty two. Under that plan, Republicans did pretty well in

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Speaker 6: New York. They picked up a number of seats. It

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Speaker 6: was a kind of a Republican leaning year in New York,

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Speaker 6: but no doubt the plan helped. What's happened now is

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Speaker 6: that Democrats, supported by the State of Dreny General and

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Speaker 6: the governor, have sued saying the plan that was adopted

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Speaker 6: in twenty twenty two, was only a temporary plan, or

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Speaker 6: should be treated as only a temporary plan. This Court

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Speaker 6: of Appeals it sent the matter back to the Judge

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Speaker 6: and the Special Master because they were running out of time.

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Speaker 6: It was already spring twenty twenty two, and you need

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Speaker 6: to have your primaries to get ready for the general election.

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Speaker 6: They already had to change the primary calendar. So it

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Speaker 6: is debatable whether what the Court Appeals was saying is

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Speaker 6: we need a plan for the twenty twenty two elections,

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Speaker 6: or whether this plan is the plan that's going to be

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Speaker 6: in effect for the entire decade the plaintiffs or Democrats

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Speaker 6: are saying. All they said was that this was the

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Speaker 6: plan for twenty twenty two, and what really should happen

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Speaker 6: is that we should return to the process the state

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Speaker 6: Constitution envisions and kick this back to the Independent Redistricting Commission.

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Speaker 6: And what they've asked force and ordered the Independent Resistant

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Speaker 6: Commission to try again and submit a plan to the

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Speaker 6: legislature which would re redistrict the New York congressional map.

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Speaker 4: Explain why the Appellate Division decided that the State redistrict

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Speaker 4: and Commission should redraw the state's congressional lines.

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Speaker 6: Well, they basically said that the plaintiffs were right. One

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Speaker 6: is that the Court of Appeal's decision did not clearly

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Speaker 6: say that this was for the entire decade, but that

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Speaker 6: it could be read that this was just to get

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Speaker 6: us through the twenty twenty two election. And the state

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Speaker 6: Constitution as amended by the voters really expresses a preference

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Speaker 6: for a process of having the Independary District Commission proposed

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Speaker 6: and the legislature resolve. And indeed the Constitution whin it

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Speaker 6: was amended, said that if a court finds that there's

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Speaker 6: a violation of the Constitution in the plan, it should

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Speaker 6: be sent back to be fixed and back to the

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Speaker 6: legislature to be fixed. So the pellate court that it's

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Speaker 6: called the Appellate Division, they were divided through the two,

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Speaker 6: but they said that this plan of setting it back

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Speaker 6: to the commission is both more consistent with what the

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Speaker 6: Constitution of New York State requires and is not precluded

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Speaker 6: by the Court of Appeal's decision.

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Speaker 4: So Republicans immediately announced their intention to appeal the case.

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Speaker 4: Are their grounds to the Court of Appeals different from

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Speaker 4: the grounds to the Appellate Division.

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Speaker 6: It's going to be essentially the same argument. There is

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Speaker 6: a technical question, really a question of New York procedure,

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Speaker 6: about whether this lawsuit was brought too late. Technically it's

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Speaker 6: a they're suing the Independent Registrict Commission for still you

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Speaker 6: to submit a second plan. It's not quite clear. Then

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Speaker 6: there's a statute's limitations to one that can be brought.

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Speaker 6: It's somewhat debatable when that expired. The lower court and

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Speaker 6: the dissenters in the Penal Division concluded that the soup

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Speaker 6: was brought too late. The majority said no, it was fine.

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Speaker 6: So that may be an issue in the Court of Appeals.

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Speaker 6: But essentially it's going to turn on what was the

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Speaker 6: Court of Appeals as a decision in twenty twenty two.

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Speaker 6: Was it this point we need a plan to get

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Speaker 6: us through the twenty twenty two election and not more,

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Speaker 6: or is this the plan that is supposed to govern

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Speaker 6: until twenty thirty so that there's nothing for the Independent

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Speaker 6: re District Commission to do.

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Speaker 4: So what do you think is the better side of

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Speaker 4: that argument?

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Speaker 6: I think it's a very close question, and it's kind

439
00:23:49,160 --> 00:23:51,800
Speaker 6: of hard to do this without having some awareness of

440
00:23:51,880 --> 00:23:55,119
Speaker 6: the partisan consequences. But I think there's some may be

441
00:23:55,160 --> 00:23:57,280
Speaker 6: said for the plants argument. The New York State Constitution

442
00:23:57,400 --> 00:24:00,280
Speaker 6: is actually pretty clear that if a court were to

443
00:24:00,320 --> 00:24:04,280
Speaker 6: find that the plan adopted by the legislature violates the constitution,

444
00:24:04,720 --> 00:24:07,000
Speaker 6: it should go back to the legislature to be fixed.

445
00:24:07,240 --> 00:24:10,439
Speaker 6: That is what the constitutional Amendment said. It was too

446
00:24:10,560 --> 00:24:13,480
Speaker 6: late to do that in twenty twenty two, and also, frankly,

447
00:24:13,800 --> 00:24:16,040
Speaker 6: the Court of appill didn't trust the legislature to get

448
00:24:16,040 --> 00:24:20,160
Speaker 6: it done right. But the actual the constitution does indicate

449
00:24:20,200 --> 00:24:22,760
Speaker 6: that would have been a better result. And indeed, one

450
00:24:22,800 --> 00:24:25,760
Speaker 6: of the judges who agreed with the majority that the

451
00:24:25,760 --> 00:24:28,760
Speaker 6: plan violate the constitution actually did not support the remedy

452
00:24:28,840 --> 00:24:30,760
Speaker 6: of tacking it to the lower court and to the

453
00:24:30,800 --> 00:24:35,040
Speaker 6: special Master, So the pretty plausible argument. Another thing to

454
00:24:35,720 --> 00:24:38,840
Speaker 6: take into account is, at the time in twenty twenty two,

455
00:24:39,200 --> 00:24:41,560
Speaker 6: it did look as though that Independent Regition Commission was

456
00:24:41,560 --> 00:24:44,880
Speaker 6: going to be totally dead lucked on partisan grounds. But interestingly,

457
00:24:45,359 --> 00:24:48,879
Speaker 6: one other part of the registricting process, the map for

458
00:24:49,000 --> 00:24:51,840
Speaker 6: the lower part of the state legislature of the Assembly,

459
00:24:52,200 --> 00:24:55,439
Speaker 6: that was also thrown out in a different lawsuit, and

460
00:24:55,520 --> 00:24:58,240
Speaker 6: it was sent back to the Independent Registion Commission, which

461
00:24:58,359 --> 00:25:02,080
Speaker 6: actually managed to come up with a bipartisan decision that

462
00:25:02,280 --> 00:25:05,600
Speaker 6: was very early this year, which was then very quickly

463
00:25:05,600 --> 00:25:08,960
Speaker 6: approved by the legislature. So there were some changes in

464
00:25:09,000 --> 00:25:12,520
Speaker 6: the composition of the commission. Maybe everyone has learned through

465
00:25:12,560 --> 00:25:16,240
Speaker 6: the Democrats have learned that you can't overreach. Is your overreach,

466
00:25:16,320 --> 00:25:19,680
Speaker 6: you really lose. So the reason to believe that it's

467
00:25:19,720 --> 00:25:22,679
Speaker 6: now possible for that commission to actually come up with

468
00:25:22,720 --> 00:25:25,439
Speaker 6: a plan, which it was not able to do in

469
00:25:25,520 --> 00:25:26,640
Speaker 6: January of twenty two.

470
00:25:27,520 --> 00:25:30,080
Speaker 4: And is it fair to say that the Court of

471
00:25:30,080 --> 00:25:35,359
Speaker 4: Appeals is a little more liberal now that the chief

472
00:25:35,440 --> 00:25:39,400
Speaker 4: Judge who actually dissented from that twenty twenty two decision

473
00:25:39,680 --> 00:25:41,920
Speaker 4: is more liberal, right?

474
00:25:41,960 --> 00:25:44,399
Speaker 6: I mean the big change actually is not who the

475
00:25:44,480 --> 00:25:47,760
Speaker 6: chief judge is. As you point out, Chief Judged Dciori,

476
00:25:47,840 --> 00:25:52,000
Speaker 6: who wrote a very sharp opinion sharply criticizing the legislature

477
00:25:52,440 --> 00:25:55,600
Speaker 6: both on procedural grounds and on Sustenan Crowns, has been

478
00:25:55,640 --> 00:25:57,920
Speaker 6: replaced as chief Judge by rowand Wilson. Ron Wilson was

479
00:25:57,920 --> 00:26:00,520
Speaker 6: already on the court. The big changes actually the appointment

480
00:26:00,520 --> 00:26:03,760
Speaker 6: of Caitlyn Halligan to Wilson CEA. She is a Democrat,

481
00:26:04,119 --> 00:26:06,159
Speaker 6: she had been the New York States Listener General, but

482
00:26:06,520 --> 00:26:07,960
Speaker 6: you know, I don't think of her as a very

483
00:26:07,960 --> 00:26:11,240
Speaker 6: particularly partisan figure. So a lot will I think it

484
00:26:11,240 --> 00:26:13,240
Speaker 6: will all turn actually on what she thinks of what

485
00:26:13,320 --> 00:26:13,960
Speaker 6: she concludes.

486
00:26:14,680 --> 00:26:17,600
Speaker 4: Isn't this sort of what happens across the country that

487
00:26:17,760 --> 00:26:22,720
Speaker 4: the party that's in control of the legislature ends up

488
00:26:22,760 --> 00:26:27,600
Speaker 4: with the advantage on redistricting or ends up doing the redistricting.

489
00:26:28,359 --> 00:26:31,200
Speaker 6: That's the case, certainly when the legislature that does redistricting,

490
00:26:31,240 --> 00:26:33,520
Speaker 6: which is in most states. A number of states have

491
00:26:33,560 --> 00:26:37,879
Speaker 6: adopted some version of an independent commission. Some commissions are

492
00:26:37,880 --> 00:26:40,800
Speaker 6: more independent and more powerful than others, but New York

493
00:26:40,840 --> 00:26:42,919
Speaker 6: one turned out to be not so independent and not

494
00:26:42,960 --> 00:26:45,639
Speaker 6: so powerful, or rather it was independent, but because it

495
00:26:45,680 --> 00:26:49,520
Speaker 6: was bipartisan, it was capable of deadlocking. In other states,

496
00:26:49,560 --> 00:26:52,040
Speaker 6: the commissions have had some real power and have been

497
00:26:52,080 --> 00:26:54,800
Speaker 6: independent of the legislature, and in other states they've been

498
00:26:54,800 --> 00:26:58,480
Speaker 6: independent of the legislatures have basically disregarded them. So it's

499
00:26:58,520 --> 00:27:01,920
Speaker 6: something that's playing out different in different states. But you're right,

500
00:27:02,000 --> 00:27:05,560
Speaker 6: certainly in most states, whoever's in charge of the legislature

501
00:27:05,600 --> 00:27:06,840
Speaker 6: is in charge of redistricting.

502
00:27:07,560 --> 00:27:09,160
Speaker 4: Is it fair to say that New York is going

503
00:27:09,200 --> 00:27:13,160
Speaker 4: to be a key battleground for Congress in twenty.

504
00:27:12,880 --> 00:27:15,480
Speaker 6: Twenty four, I think that probably is fair to say.

505
00:27:15,480 --> 00:27:17,879
Speaker 6: I mean, the Republicans have a narrow majority in the

506
00:27:17,920 --> 00:27:21,879
Speaker 6: House of Representatives. The Republicans picked up four seats in

507
00:27:21,960 --> 00:27:25,440
Speaker 6: New York last year, including two seats where they knocked

508
00:27:25,440 --> 00:27:28,160
Speaker 6: out Democratic incumbents. I think the other seats they picked

509
00:27:28,240 --> 00:27:30,600
Speaker 6: up are open seats. You know, some of those are

510
00:27:30,640 --> 00:27:34,280
Speaker 6: in districts which are not very republic They're probably in

511
00:27:34,400 --> 00:27:38,120
Speaker 6: terms of voter registration marginally democratic. A lot of those

512
00:27:38,119 --> 00:27:41,040
Speaker 6: seats are going to be challenged, even if the district

513
00:27:41,040 --> 00:27:44,399
Speaker 6: lines don't change. Certainly, George Santos is going to be

514
00:27:44,400 --> 00:27:46,960
Speaker 6: in some troubles. He fights to hold onto his seat.

515
00:27:47,119 --> 00:27:49,840
Speaker 6: I mean, he might be replaced in a Republican primary,

516
00:27:49,880 --> 00:27:51,840
Speaker 6: but that's going to be a district that's up for grabs.

517
00:27:51,880 --> 00:27:55,080
Speaker 6: So there'll be a number of Republicans are freshmen, and

518
00:27:55,200 --> 00:27:57,960
Speaker 6: they're in seats which are they one but are not

519
00:27:58,320 --> 00:28:02,200
Speaker 6: very Republican, certainly going to be hotly contested in twenty

520
00:28:02,240 --> 00:28:02,720
Speaker 6: twenty four.

521
00:28:03,160 --> 00:28:07,920
Speaker 4: Let's switch to Alabama for a moment, so the lawmakers

522
00:28:07,960 --> 00:28:12,400
Speaker 4: have until Friday to come up with new congressional districts.

523
00:28:12,440 --> 00:28:15,239
Speaker 4: So just to go back and explain why they're in

524
00:28:15,280 --> 00:28:16,280
Speaker 4: that situation.

525
00:28:17,400 --> 00:28:22,280
Speaker 6: Sure, Well, after Alabama did it's redistricting in twenty twenty two,

526
00:28:22,640 --> 00:28:27,040
Speaker 6: voting rights organization sued, claiming that the district plan violated

527
00:28:27,040 --> 00:28:30,560
Speaker 6: the Voting Rights Act. Alabama has seven districts. Six have

528
00:28:30,920 --> 00:28:33,960
Speaker 6: strong white majorities, one is a black majority district, but

529
00:28:34,080 --> 00:28:36,840
Speaker 6: Alabama is something like twenty seven to twenty eight percent black,

530
00:28:37,119 --> 00:28:40,440
Speaker 6: and the plaintiffs sued, saying that the map was drawn unfairly.

531
00:28:40,880 --> 00:28:43,840
Speaker 6: A properly drawn map would create two districts in which

532
00:28:44,120 --> 00:28:46,600
Speaker 6: black voters would either have a majority or would have

533
00:28:46,640 --> 00:28:49,320
Speaker 6: sufficient strength that they would have a fair chance of

534
00:28:49,360 --> 00:28:52,600
Speaker 6: winning two seats. Initially, a federal district court in Alabama

535
00:28:52,680 --> 00:28:55,480
Speaker 6: agreed with that, but Alabama went to the Supreme Court

536
00:28:55,520 --> 00:28:58,640
Speaker 6: and got a stay, so the challenge lines were used

537
00:28:58,640 --> 00:29:01,680
Speaker 6: in twenty twenty two. But then last month, the US

538
00:29:01,680 --> 00:29:04,760
Speaker 6: Supreme Court issued its decision on the merits and basically

539
00:29:04,800 --> 00:29:07,840
Speaker 6: said that the district court was right that the current

540
00:29:07,840 --> 00:29:10,880
Speaker 6: plan does violate the Voting Rights Act and that Alabama

541
00:29:10,920 --> 00:29:14,480
Speaker 6: has to redo it. And the lower court basically gave

542
00:29:14,520 --> 00:29:17,200
Speaker 6: them this Friday is their deadline, so that they could

543
00:29:17,400 --> 00:29:19,800
Speaker 6: have to write a new map. If the legislature doesn't

544
00:29:19,800 --> 00:29:22,320
Speaker 6: get it done by Friday, presumly the court will do it,

545
00:29:22,720 --> 00:29:25,400
Speaker 6: and then the legislature does get it done, presumably they'll

546
00:29:25,440 --> 00:29:27,720
Speaker 6: be a legal challenge. We don't know what the map

547
00:29:27,760 --> 00:29:30,520
Speaker 6: is going to look like from the court or the litigation.

548
00:29:30,880 --> 00:29:33,560
Speaker 6: They looked at some maps that the plaintiffs had proposed

549
00:29:33,920 --> 00:29:37,680
Speaker 6: to show that you could create a second black majority

550
00:29:37,760 --> 00:29:40,960
Speaker 6: or second district where blocks could do well without having

551
00:29:41,000 --> 00:29:43,000
Speaker 6: to create one that has an odd shape or that

552
00:29:43,400 --> 00:29:46,520
Speaker 6: you know, kind of looks like a gerrymander district. So

553
00:29:46,560 --> 00:29:48,320
Speaker 6: the plaintiffs had put up a number of model maps,

554
00:29:48,320 --> 00:29:50,480
Speaker 6: but the court didn't adopt any of those. The court

555
00:29:50,560 --> 00:29:53,680
Speaker 6: just looked to those to say it's possible to create two,

556
00:29:54,080 --> 00:29:58,760
Speaker 6: you know, black opportunity districts that are properly drawn. But

557
00:29:58,960 --> 00:30:02,800
Speaker 6: ultimately the legisl supposed to draw the districts. So the

558
00:30:02,840 --> 00:30:06,320
Speaker 6: dilemma for the legislature is how to do this. Legislature

559
00:30:06,440 --> 00:30:09,720
Speaker 6: is a super majority of Republican, the governor's Republican. The

560
00:30:09,760 --> 00:30:13,640
Speaker 6: assumption is this second district will probably elect a Democrat.

561
00:30:13,760 --> 00:30:15,760
Speaker 6: But there's a good chance, and so you know that

562
00:30:15,840 --> 00:30:19,000
Speaker 6: they're in the disco position for them of trying to

563
00:30:19,040 --> 00:30:22,000
Speaker 6: minimize the damage to them by trying to draw two

564
00:30:22,080 --> 00:30:26,320
Speaker 6: districts which are not necessarily going to vote against Republicans.

565
00:30:26,480 --> 00:30:28,240
Speaker 6: I think they know they're probably going to lose one,

566
00:30:28,360 --> 00:30:31,000
Speaker 6: but they're presumably looking for a way to minimize the

567
00:30:31,080 --> 00:30:32,640
Speaker 6: damage in the other one.

568
00:30:32,800 --> 00:30:36,680
Speaker 4: And is there a similar lawsuit to the Alabama suit

569
00:30:37,360 --> 00:30:38,400
Speaker 4: in Louisiana?

570
00:30:39,040 --> 00:30:41,400
Speaker 6: That is correct? Yes, the similar suits had been brought

571
00:30:41,400 --> 00:30:45,760
Speaker 6: in Louisiana. It was stayed pending the resolution of the

572
00:30:45,840 --> 00:30:48,520
Speaker 6: Alabama case. They went to the Supreme Court that is

573
00:30:48,560 --> 00:30:49,400
Speaker 6: now live again.

574
00:30:49,600 --> 00:30:52,760
Speaker 7: So what happens next in that case, Well, presumably they'll

575
00:30:52,760 --> 00:30:55,640
Speaker 7: have to be a decision by the Louisiana court as

576
00:30:55,680 --> 00:30:58,360
Speaker 7: to what happened next to whether or not there is

577
00:30:58,400 --> 00:31:00,560
Speaker 7: a violation, and there many should be.

578
00:31:00,760 --> 00:31:03,120
Speaker 6: And I know that there's been talk of bringing similar

579
00:31:03,120 --> 00:31:06,160
Speaker 6: suits in Georgia and possibly Texas. I think Texas might

580
00:31:06,200 --> 00:31:08,880
Speaker 6: be in terms of a Latino district, but the theory

581
00:31:09,200 --> 00:31:13,200
Speaker 6: was not clear until the Supreme Court sustained in Alabama

582
00:31:13,240 --> 00:31:14,560
Speaker 6: case in June.

583
00:31:14,960 --> 00:31:17,440
Speaker 4: Is it likely that these suits will be settled and

584
00:31:17,480 --> 00:31:21,440
Speaker 4: the districts will all be drawn before the presidential election.

585
00:31:22,040 --> 00:31:24,640
Speaker 6: I think there's a good chance. I mean, these maps

586
00:31:24,680 --> 00:31:28,200
Speaker 6: have been out there since last year. Presumably if any

587
00:31:28,240 --> 00:31:31,200
Speaker 6: plaintiffs have had their data ready, there will have to

588
00:31:31,200 --> 00:31:34,520
Speaker 6: be litigation. Litigation does take some time, but certainly the

589
00:31:34,520 --> 00:31:37,480
Speaker 6: Alabama one's going to be resolved. Likether the Louisiana one

590
00:31:37,560 --> 00:31:40,440
Speaker 6: was also pretty far advanced in a sect. They've got

591
00:31:41,200 --> 00:31:43,840
Speaker 6: nine months I'd say eight nine months, because we've got

592
00:31:43,880 --> 00:31:45,760
Speaker 6: to figure out the lines have to be in place

593
00:31:45,760 --> 00:31:50,040
Speaker 6: in time for primaries next ring, So seven eight nine months,

594
00:31:50,080 --> 00:31:53,200
Speaker 6: depending on the election schedule in the states to bring

595
00:31:53,200 --> 00:31:56,440
Speaker 6: the suit and get it resolved. It's not clear that

596
00:31:56,520 --> 00:31:57,920
Speaker 6: it can be done, but it's possible.

597
00:31:58,120 --> 00:32:00,880
Speaker 4: And what's the timing on the New York case, because.

598
00:32:00,680 --> 00:32:02,760
Speaker 6: Only if the Quarter Appeals will make a decision sometime

599
00:32:02,800 --> 00:32:05,840
Speaker 6: in the fall. Obviously if they reverse and they throw

600
00:32:05,880 --> 00:32:09,880
Speaker 6: out the suit, nothing happens. If they agree, then the

601
00:32:10,040 --> 00:32:13,080
Speaker 6: Independent Reditioning Commission will have to gear up and actually

602
00:32:13,080 --> 00:32:15,360
Speaker 6: go through its process and come up with a map.

603
00:32:15,640 --> 00:32:17,400
Speaker 6: And I think there will be a big burden on

604
00:32:17,440 --> 00:32:19,040
Speaker 6: that commission to come up with some kind of a

605
00:32:19,040 --> 00:32:23,720
Speaker 6: compromise so that it's not nearly as pro democratic as

606
00:32:23,760 --> 00:32:26,600
Speaker 6: the one that the legislature adopted in twenty twenty two.

607
00:32:27,000 --> 00:32:30,160
Speaker 4: Thanks for those insights. Rich that's Professor Richard Raffault of

608
00:32:30,200 --> 00:32:32,880
Speaker 4: Columbia Law School, And that's it for this edition of

609
00:32:32,880 --> 00:32:35,520
Speaker 4: The Bloomberg Law Show. Remember you can always get the

610
00:32:35,600 --> 00:32:38,840
Speaker 4: latest legal news on our Bloomberg Law Podcast. You can

611
00:32:38,840 --> 00:32:43,080
Speaker 4: find them on Apple Podcasts, Spotify, and at www dot

612
00:32:43,120 --> 00:32:47,280
Speaker 4: Bloomberg dot com slash podcast Slash Law, And remember to

613
00:32:47,320 --> 00:32:50,360
Speaker 4: tune into The Bloomberg Law Show every weeknight at ten

614
00:32:50,440 --> 00:32:54,200
Speaker 4: pm Wall Street Time. I'm June Grosso and you're listening

615
00:32:54,280 --> 00:33:00,240
Speaker 4: to Bloomberg. Okay,