Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. The winner take
Speaker 1: all electoral college system, used in almost all states, is
Speaker 1: going to be on trial in federal courts across the country.
Speaker 1: Civil rights activists are challenging the legality of the winner
Speaker 1: take all method of allocating US presidential electoral college votes
Speaker 1: in California, Massachusetts, South Carolina, and Texas, claiming the practice
Speaker 1: violates the constitutional right to an equal vote. Joining me
Speaker 1: as election law expert Josh Douglas, a professor at the
Speaker 1: University of Kentucky Law School, the winner take all system
Speaker 1: describes itself basically the Canada. Who wins the most popular
Speaker 1: votes in the state gets all the electors. Josh, why
Speaker 1: do the challengers say this system is unconstitutional? Well, thanks, June.
Speaker 1: I think they're saying that the system violates the principle
Speaker 1: of one person, one vote, that ideal that everyone's vote
Speaker 1: is worth the same, And their argument is that if
Speaker 1: you're allocating multiple electoral college votes in a state based
Speaker 1: on winner take all, than anyone who voted for the
Speaker 1: losing candidate has their vote worth nothing, and everyone who
Speaker 1: voted for the winning candidate gets all of the spoils
Speaker 1: all the electoral college votes in that state. On its face,
Speaker 1: it would seem fairer to allocate the electors. Why do
Speaker 1: forty eight states use this winner take all system? Well,
Speaker 1: the Constitution leads it up to the states to decide
Speaker 1: how to allocate their electoral college votes. Um. And you know,
Speaker 1: historically at the founding some states even just had the
Speaker 1: legislature itself decide how to allocate or who who to
Speaker 1: award its electoral college votes. Too. So it's truly historical
Speaker 1: practice that has been occurrent ring for in most places
Speaker 1: since the beginning of our country and the beginning of
Speaker 1: the use of the electoral college, that states have done this.
Speaker 1: As you noted, uh, states do so. Two states actually
Speaker 1: allocate by district. Um. So it's just a long historical practice.
Speaker 1: The lawsuits were filed in two states seen as solidly
Speaker 1: blue and too steen as solidly read. Why that choice
Speaker 1: of defendants, Well, the challenges are certainly trying to make
Speaker 1: the argument that this is not a partisan push. They're
Speaker 1: not trying to favor one side or the other by
Speaker 1: selecting two predominantly red states to prominently blue states, or
Speaker 1: you know, states that the Democrats have typically one, or
Speaker 1: the Republican nominee is typically one. What they're trying to
Speaker 1: show is that anyone who lives in a state where
Speaker 1: the one candidate or one party's candidate always wins systematically
Speaker 1: has their votes dilute or their value of their vote
Speaker 1: not worth anything. And by doing it on both sides,
Speaker 1: I think they're trying to make a push that this
Speaker 1: is a problem that affects the system as a whole,
Speaker 1: not just one political party. There's a possibility the courts
Speaker 1: will rule in different ways, and whatever the outcome, it
Speaker 1: will surely go to the Supreme Court. Is there any
Speaker 1: way this issue will be decided by presidential elections? I
Speaker 1: think it's possible if UM the courts act quickly. I mean,
Speaker 1: it's got to go through the entire court system, but
Speaker 1: that's ultimately the challenger's goal here is to get this
Speaker 1: issue before the U. S. Supreme Court. Now, I do
Speaker 1: think it's possible that UM the challenges could lose in
Speaker 1: all four of the states, in which case the Supreme
Speaker 1: Court would not necessarily take it up. But they're hoping
Speaker 1: to get at least to win and one of them
Speaker 1: to create a split among the courts and and increase
Speaker 1: likelihood that the Supreme Court would take the issue. So
Speaker 1: you see this as an uphill battle. I do think
Speaker 1: it's somewhere of an uphill battle. Um in part, there's
Speaker 1: a case from I believe this thankteen sixty nine where
Speaker 1: the Supreme Court summarily affirmed a lower lower court, a
Speaker 1: three judge panel um district court, that had rejected a
Speaker 1: similar challenge out of Virginia. And so although the Supreme
Speaker 1: Court didn't speak directly on the issue, there's at least
Speaker 1: some precedent that they summarily summarily affirmed a decision that
Speaker 1: rejected a similar challenge. So they've got at least that
Speaker 1: hurdle to get over. Maine and Nebraska are the only
Speaker 1: states that don't follow this system. What system do they
Speaker 1: use and is it better? So they allocate a electoral
Speaker 1: college vote for each congressional district, and then two electoral
Speaker 1: College of votes go statewide for the statewide winner, and
Speaker 1: that tracks the number of electors that each state receives.
Speaker 1: Each state receives the number of electors equal to the
Speaker 1: member numbers of Congress they have, UH and then adding
Speaker 1: to for members of the Senate. UM, and so Maine
Speaker 1: in Nebraska split it up that way. Whether it's better
Speaker 1: or not is really a question of political philosophy. UM.
Speaker 1: It's certain does not raise the same kind of one person,
Speaker 1: one vote concerns that the challengers here are raising. But
Speaker 1: I think their ultimate goal is is trying to UH
Speaker 1: change the system so that people's value of their votes
Speaker 1: seems to make more of a difference. Will there be
Speaker 1: some a lot more attention to this because of the
Speaker 1: star power involved. The lawyer leading the litigation is David Boys,
Speaker 1: who is one of the best known lawyers in the
Speaker 1: country and also represented al Gore when he won the
Speaker 1: popular vote. Yeah, and and the other person really behind
Speaker 1: this is a professional Gary lessig Um from Harvard UM.
Speaker 1: I certainly think one of the main goals, or I
Speaker 1: don't know main, but one of the goals of the
Speaker 1: litigation is to increase attention to the issue. You know,
Speaker 1: I think that they're often a lot of people who
Speaker 1: are pushing for this national popular vote plan for states
Speaker 1: to adopt the system where the national popular vote winner
Speaker 1: would win the presidency, and they say that that is
Speaker 1: even a better system at least lessig in a blog
Speaker 1: post that said, at um, and this is the next
Speaker 1: best route, the litigation route he's taking. But I think
Speaker 1: the ultimate goal here is also to increase public understanding,
Speaker 1: and so perhaps other legislators would go ahead and move
Speaker 1: towards the national popular vote system. About forty five seconds
Speaker 1: here for the national popular vote system, would that face
Speaker 1: change that you have to have a change in the
Speaker 1: constitution to do. The current plan is to get states
Speaker 1: to pass a law that says, regardless of who wins,
Speaker 1: our state will award our electoral college votes to the
Speaker 1: national popular vote winner. And so it's kind of a
Speaker 1: workaround of the electoral college. Now there's some constitutional concerns
Speaker 1: about that as well, but right now the plan is
Speaker 1: to go state by state. In about eleven states have
Speaker 1: already passed that. We'll see what happens here. It comes
Speaker 1: up every time they're the four times that there has
Speaker 1: been a president elected who was not the winner of
Speaker 1: the popular vote. Thanks Josh. It's Josh Douglas, professed at
Speaker 1: the University of Kentucky Law School. Special Counsel Robert Mueller
Speaker 1: has filed new charges in the case against x Trump
Speaker 1: campaign chairman Paul Manafort and his former deputy, Rick Gates,
Speaker 1: but they are under sealed. The one page document doesn't
Speaker 1: specify the nature of the charges or whether it expanded
Speaker 1: the case against both men or added others. They were
Speaker 1: indicted in October for money laundering and failing to register
Speaker 1: for political consulting work performed in Ukraine, joining me as
Speaker 1: Brad Moss, a partner at Mark Sade Brad. There has
Speaker 1: been a lot of activity in the Special Counsel's office
Speaker 1: lately and yet no leaks. How unusual is that cone
Speaker 1: of silence? Well, it's been pretty impressive what Mr Mueller's
Speaker 1: office has pulled off here. We have been routinely and
Speaker 1: repeatedly shocked by what's come out and the fact that
Speaker 1: we knew so little about what was going to emerge
Speaker 1: from his office. No one, almost no one saw the
Speaker 1: indictments of the thirteen Russian national coming a week ago.
Speaker 1: That came out of pretty much nowhere. And it's come
Speaker 1: on again and again where everybody has been speculating and
Speaker 1: what's going to happen but once we finally get some action,
Speaker 1: it's pretty much not what anybody else had known. Was
Speaker 1: that kind of oncurd This is pretty impressive on the
Speaker 1: part of the Special Counselce office. So, speaking of speculation,
Speaker 1: is this likely a superseding indictment replacing the previous indictment
Speaker 1: or Mueller's office has hinted at possible new charges in
Speaker 1: a separate filing last week. What is this likely to be?
Speaker 1: Your best guess? Yeah, it's likely. I think you're ready.
Speaker 1: It's likely to have been a superseding indictment adding on
Speaker 1: additional charges, almost all certainly tax or money laundering type
Speaker 1: of charges that we were all that we were hearing
Speaker 1: about that there was a lot of media reporting about that.
Speaker 1: Maybe Stemla's office just wasn't ready to bring when he
Speaker 1: filed the original indictment several months ago, but which they've
Speaker 1: now collected sufficient evidence to have brought up the grand
Speaker 1: jury and sought the superseding indictment, And the obvious purpose
Speaker 1: of doing it, particularly with respect to Mr Manafort, is
Speaker 1: to pressure him into making a plea agreement, into becoming
Speaker 1: a cooperating witness to find what else he knows about
Speaker 1: what occurred. In the Trump campaign, if anything that would
Speaker 1: be relevant to Mr Mueller's overarching mission, which is to
Speaker 1: investigate Russian interference in the election. He certainly has put
Speaker 1: a lot of pressure on him with with the bail conditions,
Speaker 1: and it doesn't seem to be working. What would it take,
Speaker 1: with the amount of money that Manafort has to hire lawyers,
Speaker 1: great lawyers, and to fight these charges. It would take
Speaker 1: a lot, wouldn't it to get him to plead well.
Speaker 1: The sixty four th dollar question is how much money
Speaker 1: does manafortuately have at this point. His loans are now
Speaker 1: all under scrutiny. Some of the charges, if we understand
Speaker 1: the supporting correctly, has to do with some of those
Speaker 1: most recent loans, a sixty million dollar loan that he
Speaker 1: got during the course of the campaign. So how much
Speaker 1: money he truly has at this point, how much he
Speaker 1: can truly afford to put towards lawyers while still maintaining
Speaker 1: his standard of living, remains an open question, And I
Speaker 1: think that's going to be especially if Rick Gates pleads
Speaker 1: guilty possibly tomorrow, which is the assumption and speculation right now,
Speaker 1: and start cooperating in a case against Mr Manafort. The
Speaker 1: question then it just becomes what kind of deal can
Speaker 1: Mr Manafort make to save himselves, to get the reduced
Speaker 1: charges as much as he can and avoid expending the
Speaker 1: rest of his life in prison as part of the
Speaker 1: cooperating redness with a special counsel. It's hard to know
Speaker 1: about manaforts wealth because everything that he's filed about it
Speaker 1: is under sal. If you look at the docket for
Speaker 1: his case, it's under seal, under seal. Under seal, you
Speaker 1: almost can't get any documents there um. And the judge
Speaker 1: had made a complaint about that last week. But yet
Speaker 1: still more sealed filings. Why would this particular one be
Speaker 1: under seal? I mean, why would not come out with
Speaker 1: it and say we're we're doing a superseding indictment on him,
Speaker 1: and it could be tied to behind the scenes negotiations.
Speaker 1: We don't, We just don't know what the strategy was here.
Speaker 1: But but yeah, I noticed what the what the judge
Speaker 1: had said, and I was surprised by that as well.
Speaker 1: The number of sealed filings here are rather odd. The
Speaker 1: fact that judge has not moved against them at this
Speaker 1: point is also somewhat surprising. But at the same time,
Speaker 1: without knowing what's contained within those filings without knowing the
Speaker 1: details of the justification that the work all kind of
Speaker 1: spinning our wheels here and speculating as to what it
Speaker 1: could be. There maybe somewhat garment reasons for this information
Speaker 1: to remain under steel. Now you mentioned Rick Gates, and
Speaker 1: lawyers for Rick Gates are going to meet with the
Speaker 1: trial judge tomorrow and the request, the request that's on
Speaker 1: the table is to have his attorneys withdraw from the case.
Speaker 1: What the speculation is from several sources is that he
Speaker 1: is going to to plead. I think the Los Angeles
Speaker 1: Times was the first to to come out with that.
Speaker 1: The attorney said in a February first submission, irreconcilable differences
Speaker 1: have developed with the client, which makes our effective representation
Speaker 1: of the client impossible. Could pleading be an irreconcilable difference
Speaker 1: or is this something that has nothing to do with
Speaker 1: a possible plea. It could be one or the other.
Speaker 1: It could be part of the plea, but my assumption
Speaker 1: is it has more to do with the issue of
Speaker 1: funding and his ability to handle the bills and continue
Speaker 1: forward in a financial arrangement that the firm can you
Speaker 1: as acceptable. But even if it wasn't surely about money.
Speaker 1: The idea that he's going to move forward with a
Speaker 1: plea deal that might be against the advice, the very
Speaker 1: strict advice of his lawyers, and they in every lawyer
Speaker 1: has a clause and their retainer agreement that they have
Speaker 1: the right to withdraw if the client refuses to heed
Speaker 1: their guidance and advice. That's understandable, the sense of if
Speaker 1: you don't want to listen to my guidance, then we
Speaker 1: can terminate this business arrangement and you can secure the
Speaker 1: council who will agree with you. But my view, my
Speaker 1: role here is only to try to assist you and
Speaker 1: guide you. I am not bound to you beyond the
Speaker 1: strict terms of the retainer regrant. So it could just
Speaker 1: be the idea that they don't agree with his plea deal,
Speaker 1: which might ultimately be due to financial considerations more than
Speaker 1: anything else. It's it's a it's a puzzle behind a
Speaker 1: mystery behind the curtain, and I don't know how long
Speaker 1: it will take us to figure it all out. But
Speaker 1: thanks as always for your help doing that. Brad. That's
Speaker 1: Brad Moss. He's a partner at Mark Say. Another thing,
Speaker 1: happening today is a former Donald Trump political advisor, Sam Nunberg,
Speaker 1: will be interviewed by the Special Counsel Robert Mueller investigating
Speaker 1: the Russian meddling today, according to a person familiar with
Speaker 1: the matter, and he has been told he is not
Speaker 1: a target of the investigation and there will be no
Speaker 1: charges against him provided he does not lie. Coming up
Speaker 1: on Bloomberg Politics, Policy, Power and Law, civil rights activists
Speaker 1: are wishing back against states who use a winner take
Speaker 1: all electoral college system. Four states are being sued, but
Speaker 1: forty eight states use it. This is Bloomberg. Thanks for
Speaker 1: listening to the Bloomberg Law podcast. You can subscribe and
Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on
Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg.