WEBVTT - Winner-Takes-All Electoral Structure Faces Challenges 0:00:03.480 --> 0:00:07.560 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.640 --> 0:00:10.440 day we bring you insight and analysis into the most 0:00:10.480 --> 0:00:13.400 important legal news of the day. You can find more 0:00:13.480 --> 0:00:18.040 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 0:00:18.320 --> 0:00:22.320 and on Bloomberg dot com slash podcasts. The winner take 0:00:22.360 --> 0:00:25.680 all electoral college system, used in almost all states, is 0:00:25.720 --> 0:00:28.800 going to be on trial in federal courts across the country. 0:00:29.200 --> 0:00:32.560 Civil rights activists are challenging the legality of the winner 0:00:32.560 --> 0:00:36.880 take all method of allocating US presidential electoral college votes 0:00:36.920 --> 0:00:41.960 in California, Massachusetts, South Carolina, and Texas, claiming the practice 0:00:42.080 --> 0:00:45.760 violates the constitutional right to an equal vote. Joining me 0:00:45.800 --> 0:00:48.479 as election law expert Josh Douglas, a professor at the 0:00:48.520 --> 0:00:51.880 University of Kentucky Law School, the winner take all system 0:00:52.040 --> 0:00:55.480 describes itself basically the Canada. Who wins the most popular 0:00:55.560 --> 0:00:58.720 votes in the state gets all the electors. Josh, why 0:00:58.760 --> 0:01:03.600 do the challengers say this system is unconstitutional? Well, thanks, June. 0:01:03.760 --> 0:01:07.360 I think they're saying that the system violates the principle 0:01:07.400 --> 0:01:11.319 of one person, one vote, that ideal that everyone's vote 0:01:11.400 --> 0:01:14.319 is worth the same, And their argument is that if 0:01:14.360 --> 0:01:18.880 you're allocating multiple electoral college votes in a state based 0:01:18.880 --> 0:01:22.120 on winner take all, than anyone who voted for the 0:01:22.160 --> 0:01:26.479 losing candidate has their vote worth nothing, and everyone who 0:01:26.560 --> 0:01:29.720 voted for the winning candidate gets all of the spoils 0:01:29.760 --> 0:01:33.200 all the electoral college votes in that state. On its face, 0:01:33.280 --> 0:01:36.800 it would seem fairer to allocate the electors. Why do 0:01:36.959 --> 0:01:41.199 forty eight states use this winner take all system? Well, 0:01:41.240 --> 0:01:44.400 the Constitution leads it up to the states to decide 0:01:44.400 --> 0:01:48.280 how to allocate their electoral college votes. Um. And you know, 0:01:48.520 --> 0:01:51.240 historically at the founding some states even just had the 0:01:51.360 --> 0:01:55.120 legislature itself decide how to allocate or who who to 0:01:55.200 --> 0:01:58.160 award its electoral college votes. Too. So it's truly historical 0:01:58.200 --> 0:02:02.200 practice that has been occurrent ring for in most places 0:02:02.200 --> 0:02:05.160 since the beginning of our country and the beginning of 0:02:05.200 --> 0:02:07.680 the use of the electoral college, that states have done this. 0:02:07.720 --> 0:02:12.320 As you noted, uh, states do so. Two states actually 0:02:12.280 --> 0:02:15.600 allocate by district. Um. So it's just a long historical practice. 0:02:16.160 --> 0:02:19.560 The lawsuits were filed in two states seen as solidly 0:02:19.680 --> 0:02:24.400 blue and too steen as solidly read. Why that choice 0:02:24.720 --> 0:02:29.440 of defendants, Well, the challenges are certainly trying to make 0:02:29.440 --> 0:02:32.880 the argument that this is not a partisan push. They're 0:02:32.880 --> 0:02:35.480 not trying to favor one side or the other by 0:02:35.520 --> 0:02:39.920 selecting two predominantly red states to prominently blue states, or 0:02:39.960 --> 0:02:42.480 you know, states that the Democrats have typically one, or 0:02:42.520 --> 0:02:45.280 the Republican nominee is typically one. What they're trying to 0:02:45.320 --> 0:02:48.079 show is that anyone who lives in a state where 0:02:48.160 --> 0:02:52.640 the one candidate or one party's candidate always wins systematically 0:02:52.680 --> 0:02:55.359 has their votes dilute or their value of their vote 0:02:55.400 --> 0:02:58.160 not worth anything. And by doing it on both sides, 0:02:58.440 --> 0:03:01.280 I think they're trying to make a push that this 0:03:01.400 --> 0:03:03.720 is a problem that affects the system as a whole, 0:03:04.120 --> 0:03:08.240 not just one political party. There's a possibility the courts 0:03:08.560 --> 0:03:11.520 will rule in different ways, and whatever the outcome, it 0:03:11.560 --> 0:03:14.440 will surely go to the Supreme Court. Is there any 0:03:14.440 --> 0:03:19.200 way this issue will be decided by presidential elections? I 0:03:19.240 --> 0:03:23.040 think it's possible if UM the courts act quickly. I mean, 0:03:23.040 --> 0:03:25.640 it's got to go through the entire court system, but 0:03:25.680 --> 0:03:28.440 that's ultimately the challenger's goal here is to get this 0:03:28.520 --> 0:03:31.560 issue before the U. S. Supreme Court. Now, I do 0:03:31.600 --> 0:03:35.720 think it's possible that UM the challenges could lose in 0:03:35.760 --> 0:03:37.720 all four of the states, in which case the Supreme 0:03:37.720 --> 0:03:40.880 Court would not necessarily take it up. But they're hoping 0:03:40.920 --> 0:03:42.560 to get at least to win and one of them 0:03:42.840 --> 0:03:46.040 to create a split among the courts and and increase 0:03:46.160 --> 0:03:48.640 likelihood that the Supreme Court would take the issue. So 0:03:48.680 --> 0:03:51.640 you see this as an uphill battle. I do think 0:03:51.640 --> 0:03:54.200 it's somewhere of an uphill battle. Um in part, there's 0:03:54.240 --> 0:03:57.680 a case from I believe this thankteen sixty nine where 0:03:57.720 --> 0:04:01.760 the Supreme Court summarily affirmed a lower lower court, a 0:04:01.840 --> 0:04:05.760 three judge panel um district court, that had rejected a 0:04:05.760 --> 0:04:09.720 similar challenge out of Virginia. And so although the Supreme 0:04:09.720 --> 0:04:12.320 Court didn't speak directly on the issue, there's at least 0:04:12.320 --> 0:04:16.000 some precedent that they summarily summarily affirmed a decision that 0:04:16.040 --> 0:04:18.200 rejected a similar challenge. So they've got at least that 0:04:18.279 --> 0:04:21.400 hurdle to get over. Maine and Nebraska are the only 0:04:21.520 --> 0:04:25.360 states that don't follow this system. What system do they 0:04:25.520 --> 0:04:31.440 use and is it better? So they allocate a electoral 0:04:31.480 --> 0:04:35.960 college vote for each congressional district, and then two electoral 0:04:36.000 --> 0:04:39.080 College of votes go statewide for the statewide winner, and 0:04:39.160 --> 0:04:42.600 that tracks the number of electors that each state receives. 0:04:42.640 --> 0:04:45.800 Each state receives the number of electors equal to the 0:04:45.800 --> 0:04:49.200 member numbers of Congress they have, UH and then adding 0:04:49.240 --> 0:04:53.279 to for members of the Senate. UM, and so Maine 0:04:53.279 --> 0:04:56.320 in Nebraska split it up that way. Whether it's better 0:04:56.400 --> 0:04:59.520 or not is really a question of political philosophy. UM. 0:04:59.560 --> 0:05:02.279 It's certain does not raise the same kind of one person, 0:05:02.360 --> 0:05:06.440 one vote concerns that the challengers here are raising. But 0:05:06.600 --> 0:05:09.719 I think their ultimate goal is is trying to UH 0:05:10.040 --> 0:05:13.560 change the system so that people's value of their votes 0:05:14.200 --> 0:05:16.880 seems to make more of a difference. Will there be 0:05:17.600 --> 0:05:20.640 some a lot more attention to this because of the 0:05:20.760 --> 0:05:24.520 star power involved. The lawyer leading the litigation is David Boys, 0:05:24.560 --> 0:05:26.039 who is one of the best known lawyers in the 0:05:26.080 --> 0:05:29.440 country and also represented al Gore when he won the 0:05:29.520 --> 0:05:33.200 popular vote. Yeah, and and the other person really behind 0:05:33.240 --> 0:05:37.240 this is a professional Gary lessig Um from Harvard UM. 0:05:37.279 --> 0:05:39.600 I certainly think one of the main goals, or I 0:05:39.640 --> 0:05:42.080 don't know main, but one of the goals of the 0:05:42.160 --> 0:05:44.880 litigation is to increase attention to the issue. You know, 0:05:44.960 --> 0:05:47.600 I think that they're often a lot of people who 0:05:47.600 --> 0:05:50.640 are pushing for this national popular vote plan for states 0:05:50.640 --> 0:05:53.520 to adopt the system where the national popular vote winner 0:05:53.520 --> 0:05:56.320 would win the presidency, and they say that that is 0:05:56.360 --> 0:05:59.279 even a better system at least lessig in a blog 0:05:59.320 --> 0:06:01.400 post that said, at um, and this is the next 0:06:01.440 --> 0:06:04.880 best route, the litigation route he's taking. But I think 0:06:04.920 --> 0:06:08.960 the ultimate goal here is also to increase public understanding, 0:06:09.080 --> 0:06:12.320 and so perhaps other legislators would go ahead and move 0:06:12.360 --> 0:06:15.440 towards the national popular vote system. About forty five seconds 0:06:15.480 --> 0:06:19.839 here for the national popular vote system, would that face 0:06:20.920 --> 0:06:22.479 change that you have to have a change in the 0:06:22.520 --> 0:06:26.920 constitution to do. The current plan is to get states 0:06:26.960 --> 0:06:29.840 to pass a law that says, regardless of who wins, 0:06:29.880 --> 0:06:33.039 our state will award our electoral college votes to the 0:06:33.120 --> 0:06:35.560 national popular vote winner. And so it's kind of a 0:06:35.600 --> 0:06:39.800 workaround of the electoral college. Now there's some constitutional concerns 0:06:39.839 --> 0:06:42.599 about that as well, but right now the plan is 0:06:42.600 --> 0:06:44.520 to go state by state. In about eleven states have 0:06:44.560 --> 0:06:47.960 already passed that. We'll see what happens here. It comes 0:06:48.040 --> 0:06:50.800 up every time they're the four times that there has 0:06:50.839 --> 0:06:53.840 been a president elected who was not the winner of 0:06:53.880 --> 0:06:56.960 the popular vote. Thanks Josh. It's Josh Douglas, professed at 0:06:56.960 --> 0:07:06.160 the University of Kentucky Law School. Special Counsel Robert Mueller 0:07:06.200 --> 0:07:08.960 has filed new charges in the case against x Trump 0:07:09.080 --> 0:07:13.320 campaign chairman Paul Manafort and his former deputy, Rick Gates, 0:07:13.400 --> 0:07:17.000 but they are under sealed. The one page document doesn't 0:07:17.000 --> 0:07:20.120 specify the nature of the charges or whether it expanded 0:07:20.160 --> 0:07:23.240 the case against both men or added others. They were 0:07:23.240 --> 0:07:26.320 indicted in October for money laundering and failing to register 0:07:26.360 --> 0:07:29.840 for political consulting work performed in Ukraine, joining me as 0:07:29.920 --> 0:07:33.160 Brad Moss, a partner at Mark Sade Brad. There has 0:07:33.200 --> 0:07:36.560 been a lot of activity in the Special Counsel's office 0:07:36.680 --> 0:07:41.080 lately and yet no leaks. How unusual is that cone 0:07:41.160 --> 0:07:45.960 of silence? Well, it's been pretty impressive what Mr Mueller's 0:07:45.960 --> 0:07:48.480 office has pulled off here. We have been routinely and 0:07:48.560 --> 0:07:51.880 repeatedly shocked by what's come out and the fact that 0:07:51.960 --> 0:07:54.640 we knew so little about what was going to emerge 0:07:54.680 --> 0:07:57.760 from his office. No one, almost no one saw the 0:07:58.400 --> 0:08:00.880 indictments of the thirteen Russian national coming a week ago. 0:08:01.000 --> 0:08:03.360 That came out of pretty much nowhere. And it's come 0:08:03.400 --> 0:08:06.000 on again and again where everybody has been speculating and 0:08:06.040 --> 0:08:08.760 what's going to happen but once we finally get some action, 0:08:08.840 --> 0:08:11.080 it's pretty much not what anybody else had known. Was 0:08:11.120 --> 0:08:13.640 that kind of oncurd This is pretty impressive on the 0:08:13.640 --> 0:08:16.520 part of the Special Counselce office. So, speaking of speculation, 0:08:17.480 --> 0:08:22.560 is this likely a superseding indictment replacing the previous indictment 0:08:22.840 --> 0:08:27.040 or Mueller's office has hinted at possible new charges in 0:08:27.120 --> 0:08:31.120 a separate filing last week. What is this likely to be? 0:08:31.280 --> 0:08:34.200 Your best guess? Yeah, it's likely. I think you're ready. 0:08:34.200 --> 0:08:36.800 It's likely to have been a superseding indictment adding on 0:08:36.920 --> 0:08:43.120 additional charges, almost all certainly tax or money laundering type 0:08:43.120 --> 0:08:45.640 of charges that we were all that we were hearing 0:08:45.640 --> 0:08:47.720 about that there was a lot of media reporting about that. 0:08:47.800 --> 0:08:50.679 Maybe Stemla's office just wasn't ready to bring when he 0:08:50.800 --> 0:08:54.880 filed the original indictment several months ago, but which they've 0:08:54.920 --> 0:08:57.120 now collected sufficient evidence to have brought up the grand 0:08:57.200 --> 0:09:00.840 jury and sought the superseding indictment, And the obvious purpose 0:09:00.920 --> 0:09:04.320 of doing it, particularly with respect to Mr Manafort, is 0:09:04.360 --> 0:09:08.320 to pressure him into making a plea agreement, into becoming 0:09:08.320 --> 0:09:12.160 a cooperating witness to find what else he knows about 0:09:12.200 --> 0:09:15.120 what occurred. In the Trump campaign, if anything that would 0:09:15.120 --> 0:09:18.760 be relevant to Mr Mueller's overarching mission, which is to 0:09:18.840 --> 0:09:22.160 investigate Russian interference in the election. He certainly has put 0:09:22.160 --> 0:09:25.439 a lot of pressure on him with with the bail conditions, 0:09:25.480 --> 0:09:28.760 and it doesn't seem to be working. What would it take, 0:09:28.800 --> 0:09:33.479 with the amount of money that Manafort has to hire lawyers, 0:09:34.120 --> 0:09:37.600 great lawyers, and to fight these charges. It would take 0:09:37.800 --> 0:09:41.080 a lot, wouldn't it to get him to plead well. 0:09:41.440 --> 0:09:44.839 The sixty four th dollar question is how much money 0:09:44.920 --> 0:09:48.360 does manafortuately have at this point. His loans are now 0:09:48.400 --> 0:09:52.280 all under scrutiny. Some of the charges, if we understand 0:09:52.320 --> 0:09:54.640 the supporting correctly, has to do with some of those 0:09:54.640 --> 0:09:57.199 most recent loans, a sixty million dollar loan that he 0:09:57.280 --> 0:10:01.319 got during the course of the campaign. So how much 0:10:01.320 --> 0:10:03.280 money he truly has at this point, how much he 0:10:03.320 --> 0:10:07.720 can truly afford to put towards lawyers while still maintaining 0:10:08.440 --> 0:10:10.880 his standard of living, remains an open question, And I 0:10:10.880 --> 0:10:13.960 think that's going to be especially if Rick Gates pleads 0:10:14.000 --> 0:10:18.520 guilty possibly tomorrow, which is the assumption and speculation right now, 0:10:18.880 --> 0:10:22.080 and start cooperating in a case against Mr Manafort. The 0:10:22.160 --> 0:10:24.720 question then it just becomes what kind of deal can 0:10:24.840 --> 0:10:28.960 Mr Manafort make to save himselves, to get the reduced 0:10:29.040 --> 0:10:31.480 charges as much as he can and avoid expending the 0:10:31.480 --> 0:10:33.599 rest of his life in prison as part of the 0:10:33.720 --> 0:10:36.600 cooperating redness with a special counsel. It's hard to know 0:10:36.720 --> 0:10:42.280 about manaforts wealth because everything that he's filed about it 0:10:42.320 --> 0:10:44.360 is under sal. If you look at the docket for 0:10:44.480 --> 0:10:47.480 his case, it's under seal, under seal. Under seal, you 0:10:47.480 --> 0:10:51.800 almost can't get any documents there um. And the judge 0:10:51.840 --> 0:10:54.800 had made a complaint about that last week. But yet 0:10:55.320 --> 0:10:59.480 still more sealed filings. Why would this particular one be 0:10:59.600 --> 0:11:03.120 under seal? I mean, why would not come out with 0:11:03.160 --> 0:11:07.040 it and say we're we're doing a superseding indictment on him, 0:11:07.080 --> 0:11:10.440 and it could be tied to behind the scenes negotiations. 0:11:10.480 --> 0:11:13.440 We don't, We just don't know what the strategy was here. 0:11:14.000 --> 0:11:16.400 But but yeah, I noticed what the what the judge 0:11:16.400 --> 0:11:18.120 had said, and I was surprised by that as well. 0:11:18.240 --> 0:11:22.320 The number of sealed filings here are rather odd. The 0:11:22.360 --> 0:11:24.880 fact that judge has not moved against them at this 0:11:24.960 --> 0:11:28.120 point is also somewhat surprising. But at the same time, 0:11:28.120 --> 0:11:31.120 without knowing what's contained within those filings without knowing the 0:11:31.200 --> 0:11:34.920 details of the justification that the work all kind of 0:11:34.960 --> 0:11:37.360 spinning our wheels here and speculating as to what it 0:11:37.400 --> 0:11:40.600 could be. There maybe somewhat garment reasons for this information 0:11:40.640 --> 0:11:44.120 to remain under steel. Now you mentioned Rick Gates, and 0:11:44.480 --> 0:11:46.520 lawyers for Rick Gates are going to meet with the 0:11:46.559 --> 0:11:50.520 trial judge tomorrow and the request, the request that's on 0:11:50.559 --> 0:11:54.840 the table is to have his attorneys withdraw from the case. 0:11:55.120 --> 0:11:59.040 What the speculation is from several sources is that he 0:11:59.200 --> 0:12:01.520 is going to to plead. I think the Los Angeles 0:12:01.559 --> 0:12:03.880 Times was the first to to come out with that. 0:12:04.320 --> 0:12:08.840 The attorney said in a February first submission, irreconcilable differences 0:12:08.880 --> 0:12:12.600 have developed with the client, which makes our effective representation 0:12:12.760 --> 0:12:18.240 of the client impossible. Could pleading be an irreconcilable difference 0:12:18.280 --> 0:12:20.360 or is this something that has nothing to do with 0:12:20.400 --> 0:12:23.959 a possible plea. It could be one or the other. 0:12:24.000 --> 0:12:25.920 It could be part of the plea, but my assumption 0:12:25.960 --> 0:12:27.560 is it has more to do with the issue of 0:12:27.640 --> 0:12:32.000 funding and his ability to handle the bills and continue 0:12:32.120 --> 0:12:36.079 forward in a financial arrangement that the firm can you 0:12:36.240 --> 0:12:39.320 as acceptable. But even if it wasn't surely about money. 0:12:39.360 --> 0:12:41.040 The idea that he's going to move forward with a 0:12:41.040 --> 0:12:43.920 plea deal that might be against the advice, the very 0:12:43.920 --> 0:12:46.720 strict advice of his lawyers, and they in every lawyer 0:12:46.800 --> 0:12:49.400 has a clause and their retainer agreement that they have 0:12:49.480 --> 0:12:53.480 the right to withdraw if the client refuses to heed 0:12:53.559 --> 0:12:57.320 their guidance and advice. That's understandable, the sense of if 0:12:57.320 --> 0:12:59.680 you don't want to listen to my guidance, then we 0:12:59.720 --> 0:13:02.480 can terminate this business arrangement and you can secure the 0:13:02.559 --> 0:13:05.240 council who will agree with you. But my view, my 0:13:05.360 --> 0:13:07.160 role here is only to try to assist you and 0:13:07.200 --> 0:13:09.600 guide you. I am not bound to you beyond the 0:13:09.600 --> 0:13:11.800 strict terms of the retainer regrant. So it could just 0:13:11.880 --> 0:13:14.200 be the idea that they don't agree with his plea deal, 0:13:14.440 --> 0:13:17.640 which might ultimately be due to financial considerations more than 0:13:17.640 --> 0:13:21.480 anything else. It's it's a it's a puzzle behind a 0:13:21.559 --> 0:13:25.319 mystery behind the curtain, and I don't know how long 0:13:25.320 --> 0:13:27.200 it will take us to figure it all out. But 0:13:27.280 --> 0:13:30.440 thanks as always for your help doing that. Brad. That's 0:13:30.480 --> 0:13:33.160 Brad Moss. He's a partner at Mark Say. Another thing, 0:13:33.200 --> 0:13:36.920 happening today is a former Donald Trump political advisor, Sam Nunberg, 0:13:36.960 --> 0:13:40.880 will be interviewed by the Special Counsel Robert Mueller investigating 0:13:40.920 --> 0:13:44.679 the Russian meddling today, according to a person familiar with 0:13:44.720 --> 0:13:47.000 the matter, and he has been told he is not 0:13:47.120 --> 0:13:50.080 a target of the investigation and there will be no 0:13:50.200 --> 0:13:54.760 charges against him provided he does not lie. Coming up 0:13:54.800 --> 0:13:59.640 on Bloomberg Politics, Policy, Power and Law, civil rights activists 0:13:59.640 --> 0:14:02.800 are wishing back against states who use a winner take 0:14:02.840 --> 0:14:06.920 all electoral college system. Four states are being sued, but 0:14:07.040 --> 0:14:10.000 forty eight states use it. This is Bloomberg. Thanks for 0:14:10.040 --> 0:14:13.320 listening to the Bloomberg Law podcast. You can subscribe and 0:14:13.360 --> 0:14:16.600 listen to the show on Apple Podcasts, SoundCloud, and on 0:14:16.679 --> 0:14:22.080 Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg.