WEBVTT - Bankman-Fried's Former Girlfriend Testifies Against Him 0:00:03.160 --> 0:00:07.880 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.080 --> 0:00:13.319 We have said that the burden that you're assuming of 0:00:13.400 --> 0:00:18.840 disentangling race and politics in a situation like this is very, 0:00:18.960 --> 0:00:19.920 very difficult. 0:00:20.160 --> 0:00:23.560 The Chief Justice aptly described the problem in the case 0:00:23.600 --> 0:00:27.400 before the Supreme Court the limits of parties in jerrymandering 0:00:27.720 --> 0:00:30.920 when it intersects with race. It's a case that could 0:00:30.920 --> 0:00:34.600 help determine which party controls the House after next year's election. 0:00:35.360 --> 0:00:38.880 A panel of three federal judges, after an eight day trial, 0:00:39.280 --> 0:00:44.720 concluded that Republican lawmakers had engaged in unconstitutional racial gerrymandering 0:00:45.080 --> 0:00:49.479 in drawing South Carolina's first congressional district, but at oral arguments. 0:00:49.520 --> 0:00:54.040 The conservative justice has expressed skepticism about that panel's decision 0:00:54.440 --> 0:00:58.520 and suggested they will reinstate the Republican drawn map. Here's 0:00:58.560 --> 0:01:01.080 Chief Justice John Roberts, but. 0:01:01.120 --> 0:01:04.800 We've never had a case where there's been no direct evidence, 0:01:05.480 --> 0:01:11.320 no map, no strangely configured districts, a very large amount 0:01:11.360 --> 0:01:14.959 of political evidence, whether the district court chose to credit 0:01:14.959 --> 0:01:19.759 it or not, and instead it all resting on circumstantial evidence. 0:01:20.319 --> 0:01:23.800 While the three liberal justices suggested the lower court had 0:01:23.880 --> 0:01:29.240 adequate evidence to conclude that South Carolina lawmakers improperly relied 0:01:29.280 --> 0:01:32.920 on race to get to its established target of seventeen 0:01:32.959 --> 0:01:37.080 percent black voters in the district by shifting thirty thousand 0:01:37.160 --> 0:01:40.080 black voters out of the district to hit that goal. 0:01:40.319 --> 0:01:42.000 Here's Justice Elena Kagan. 0:01:43.000 --> 0:01:46.640 You have two experts here, Reguso and Lou who answered 0:01:46.640 --> 0:01:49.200 the exact question that is supposed to be answered in 0:01:49.280 --> 0:01:52.680 such a case. In other words, is this gerrymander based 0:01:52.720 --> 0:01:55.680 on politics or is it a way to get to 0:01:55.720 --> 0:01:59.760 an ultimate goal? An ultimate political goal? But the gerrymanderin 0:01:59.880 --> 0:02:01.720 is based on race. And what the two of them 0:02:01.800 --> 0:02:06.280 do is that they show that black Democrats are excluded 0:02:06.600 --> 0:02:10.960 from District one at a far greater percentage than white 0:02:11.040 --> 0:02:12.840 Democrats are joining. 0:02:12.840 --> 0:02:15.760 Me is elections law expert Richard Brefald, a professor at 0:02:15.800 --> 0:02:18.960 Columbia Law School. So Rich tell us about the case 0:02:19.000 --> 0:02:20.160 and the main issue here. 0:02:20.360 --> 0:02:24.040 So, this case is about a challenge to the redistricting 0:02:24.080 --> 0:02:28.240 of South Carolina's congressional plan in twenty twenty two following 0:02:28.240 --> 0:02:32.960 the twenty twenty census. The major development affected District one, 0:02:33.000 --> 0:02:36.359 which is basically around Charleston, and it made the district 0:02:36.400 --> 0:02:38.960 more Republican by moving out of a significant number of 0:02:39.000 --> 0:02:43.000 black voters into an adjacent black majority district. District one 0:02:43.040 --> 0:02:45.799 had been a Republican district, but in recent years had 0:02:45.800 --> 0:02:49.359 been more closely contested, and in twenty eighteen the Democrats 0:02:49.360 --> 0:02:52.400 actually won it for one term. Twenty twenty the Republicans 0:02:52.400 --> 0:02:55.200 wanted that very narrowly. So one of the things the 0:02:55.240 --> 0:02:58.800 legislature did in twenty twenty two was changed the composition 0:02:59.080 --> 0:03:02.120 to make it more Republican, and it's so doing It 0:03:02.240 --> 0:03:06.239 basically moved about thirty thousand black voters from Charleston out 0:03:06.280 --> 0:03:08.680 of the district into an adjacent district. By the way, 0:03:08.720 --> 0:03:11.480 District one is the district that elects Nancy Mace, who 0:03:11.520 --> 0:03:14.760 had been previously considered a moderate that since her district 0:03:14.800 --> 0:03:16.880 was change, seems to become more conservative. But she's one 0:03:16.919 --> 0:03:20.240 of the eight who voted to depose Kevin McCarthy. So 0:03:20.400 --> 0:03:23.320 the question before the court, it's a tough question, is 0:03:23.360 --> 0:03:27.560 whether the legislature was motivated by race or by party. 0:03:28.080 --> 0:03:30.200 You might say that in a state where race and 0:03:30.240 --> 0:03:33.720 party are so intertwined, that's an impossible question answers. It's 0:03:33.760 --> 0:03:36.760 the same thing, but It's crucial because the Supreme Court 0:03:36.840 --> 0:03:39.320 has said that racial gerrymandering, that is to say, the 0:03:39.480 --> 0:03:43.040 intentional movement of voters because of their race from one 0:03:43.040 --> 0:03:47.560 district into another is unconstitutional. But partisan jerry mandering, as 0:03:47.560 --> 0:03:50.080 we all know since the RUCO decision in twenty nineteen, 0:03:50.680 --> 0:03:53.800 is non justiciable. So it's okay for the state to 0:03:53.880 --> 0:03:56.960 engage in partisan gerrymandering, it's not okay for the state 0:03:57.000 --> 0:04:00.400 to engage in racial gerrymandering. South Carolina says it was 0:04:00.440 --> 0:04:03.720 both the following traditional district lines but also had a 0:04:03.720 --> 0:04:07.200 partisan political purpose. What the lower court found was that 0:04:07.320 --> 0:04:12.000 actually the movements of voters did exhibit racial predominance, that 0:04:12.240 --> 0:04:15.480 given away the voters, which voters were targeted, and relying 0:04:15.520 --> 0:04:18.320 on the testimony of experts, they basically said that a 0:04:18.360 --> 0:04:22.360 disproportionate number of black Democrats relative to white Democrats were 0:04:22.400 --> 0:04:24.680 the ones who were moved, and therefore the district court 0:04:25.080 --> 0:04:28.480 was able to conclude that this was a racial gerrymander. 0:04:28.880 --> 0:04:31.159 That's what's being tested in the Supreme Court right now, 0:04:31.800 --> 0:04:34.640 whether this is a racial or a partisan gerrymander. Did 0:04:34.640 --> 0:04:37.240 the district court do it right? To what extent is 0:04:37.279 --> 0:04:41.080 the Supreme Court required to defer to the findings of 0:04:41.160 --> 0:04:43.440 the district Court, and the district Court's findings are really 0:04:43.839 --> 0:04:47.359 sort of factual. They basically made a determination based on 0:04:47.880 --> 0:04:50.680 the testimony of a person who wrote the South Carolina 0:04:50.720 --> 0:04:54.240 Plan and of other experts that this was racially motivated. 0:04:54.320 --> 0:04:56.960 So one of the big issues before the court is 0:04:57.000 --> 0:05:01.200 what difference the district court finding was supposed to gets. Normally, 0:05:01.320 --> 0:05:04.320 the standard that applies to something called clearly erroneous, which 0:05:04.320 --> 0:05:06.680 means the district court gets a lot of difference. But 0:05:06.960 --> 0:05:10.880 you saw some of the more conservative justices pushing back 0:05:10.920 --> 0:05:14.359 on that here, saying that given the fact that the 0:05:14.400 --> 0:05:16.880 district Court doesn't appear to have given trusted in the 0:05:16.920 --> 0:05:19.320 good faith of the legislature, and given some of the 0:05:19.360 --> 0:05:22.000 other challenges to the evidence in front of the district Court, 0:05:22.640 --> 0:05:25.720 maybe the district Court doesn't get the kind of difference 0:05:25.960 --> 0:05:28.719 that the clearly erroneous standard normally would give them. 0:05:28.839 --> 0:05:31.359 Okay, so let's take those That's a lot of issues, 0:05:31.400 --> 0:05:35.000 one one by one. So the three judge federal panel 0:05:35.160 --> 0:05:38.560 referred to the revised map as effective bleaching of African 0:05:38.560 --> 0:05:41.680 American voters out of the Charleston County portion of the 0:05:41.720 --> 0:05:45.080 district and they came to that conclusion after an extensive 0:05:45.240 --> 0:05:49.280 eight day trial featuring forty two witnesses and six hundred 0:05:49.320 --> 0:05:53.159 and fifty two exhibits. So doesn't the court usually defer 0:05:53.400 --> 0:05:56.440 to the factual findings of lower court judges? 0:05:56.880 --> 0:05:59.200 Yes, I mean, indeed, that is the standard they're supposed 0:05:59.240 --> 0:06:02.400 to apply, with col the clearly erroneous standard, not just 0:06:02.560 --> 0:06:05.240 with the district court right on balance, but as long 0:06:05.279 --> 0:06:07.840 as the district court did was plausible, long as they 0:06:07.839 --> 0:06:10.000 didn't do something which was clearly wrong as opposed to 0:06:10.040 --> 0:06:13.480 debatably wrong, they're supposed to defer. And you definitely heard 0:06:13.640 --> 0:06:17.039 the liberal justices emphasizing the importance of adhering to the 0:06:17.040 --> 0:06:20.200 clearly erroneous standard that there was evidence to support with 0:06:20.279 --> 0:06:23.600 the district court found, and indeed the United States came 0:06:23.640 --> 0:06:25.360 in the United States had not been a party to 0:06:25.400 --> 0:06:28.200 the case originally, but this listener General's Office came if 0:06:28.240 --> 0:06:31.760 the United States had actually emphasized the importance of following 0:06:31.760 --> 0:06:33.040 the clearly erroneous standard. 0:06:33.920 --> 0:06:37.720 Chief Justice John Roberts said that the challengers of the 0:06:37.760 --> 0:06:41.840 map had no direct evidence that race had predominated in 0:06:41.880 --> 0:06:45.880 the decision making process, just circumstantial evidence. This would be 0:06:45.920 --> 0:06:50.440 breaking new ground in our voting rights jurisprudence. Is that true? 0:06:50.640 --> 0:06:53.080 I mean, isn't circumstantial evidence enough? 0:06:53.839 --> 0:06:57.839 Right? They've often found circums relied on circumstantial evidence. But 0:06:57.960 --> 0:07:01.240 his full statement was there were there's no direct evidence. 0:07:01.560 --> 0:07:04.280 He also said it was not an oddly shaped district, 0:07:04.320 --> 0:07:06.560 and the number of the early other cases in which 0:07:06.560 --> 0:07:11.280 the Court has found racial gerrymandering, the district was oddly shaped. 0:07:11.440 --> 0:07:13.840 On this one, there was a big change in the district. 0:07:13.840 --> 0:07:16.880 People were moved around a lot, but the district itself 0:07:16.920 --> 0:07:20.440 didn't flunk any kind of test of odd shape, which 0:07:20.480 --> 0:07:23.920 is somethings the Court has sometimes used. And the other 0:07:24.000 --> 0:07:27.080 issue that came up before the court was the fact 0:07:27.120 --> 0:07:32.000 that the plaintiffs had not presented an alternative map. Basically, 0:07:32.040 --> 0:07:35.480 the question was could the state have gotten its partisan 0:07:35.560 --> 0:07:40.000 goals without moving as many black voters around? And the 0:07:40.080 --> 0:07:43.560 question came up, should the plaintiffs have been required to 0:07:43.640 --> 0:07:46.440 present an alternative map showing that the state could have 0:07:46.480 --> 0:07:49.840 made the district just as republican without moving as many 0:07:49.880 --> 0:07:52.040 black voters. And there was a debate in the court 0:07:52.040 --> 0:07:54.920 as to whether the plaintiffs had to do that, and 0:07:55.000 --> 0:07:57.880 the president is that they don't have to. Indeed, Justice 0:07:57.920 --> 0:08:00.360 Kagan was quite strong on that, because she'd actually written 0:08:00.360 --> 0:08:03.440 the case that said that, a case called Cooper about 0:08:03.480 --> 0:08:06.720 five years ago. But nonetheless, the other justices sort of 0:08:06.720 --> 0:08:09.160 came back and said, well, maybe you didn't have to, 0:08:09.600 --> 0:08:12.320 but why didn't you Why wouldn't that have helped your 0:08:12.400 --> 0:08:14.840 case if you could have shown that they could obtained 0:08:14.880 --> 0:08:18.600 their partisan goals without using race quite as much. I mean, 0:08:18.600 --> 0:08:21.200 it really went into the question this difficulty of separating 0:08:21.200 --> 0:08:25.000 out race and party an effect the conservative justices were 0:08:25.560 --> 0:08:29.080 sort of creating it, even though the prior case Cooper 0:08:29.120 --> 0:08:31.560 had said there's no such requirement. You saw some of 0:08:31.560 --> 0:08:34.800 them basically kind of suggesting that either that there is, 0:08:35.000 --> 0:08:37.120 or that there should be, or that it's a problem 0:08:37.120 --> 0:08:38.200 when there isn't. 0:08:38.559 --> 0:08:42.160 Justice Kagan argued that the map makers wouldn't just have 0:08:42.280 --> 0:08:45.880 relied on the twenty twenty election results. She said this 0:08:46.000 --> 0:08:49.840 to the lawyer arguing for South Carolina. Your defense was 0:08:49.960 --> 0:08:52.320 we didn't look at the racial data for this purpose, 0:08:52.640 --> 0:08:55.360 and what the lower court said was I don't believe that. 0:08:55.559 --> 0:08:59.400 And she also said they had not only the opportunity, 0:08:59.520 --> 0:09:02.240 it was sit they're on their computers, but the clear 0:09:02.280 --> 0:09:05.840 incentive to be looking at this race data. So explain 0:09:05.920 --> 0:09:08.160 what you was getting at there and did you find 0:09:08.160 --> 0:09:08.920 it persuasive. 0:09:09.440 --> 0:09:12.320 So the couple questions here are one is why would 0:09:12.320 --> 0:09:15.000 they Why would the state bother using race when they 0:09:15.040 --> 0:09:17.680 could just use party? And if their goal was to 0:09:17.720 --> 0:09:21.079 make the district more Republican, why not just use the 0:09:21.160 --> 0:09:23.960 party voting? Why use race as approxy when you actually 0:09:23.960 --> 0:09:27.319 have the party data. One response to that is, actually, 0:09:27.360 --> 0:09:30.319 they had much more information on race than on party. 0:09:30.360 --> 0:09:33.200 They only had because of the way in which votes 0:09:33.240 --> 0:09:37.320 were counted in South Carolina. They only had one election 0:09:37.679 --> 0:09:39.680 in which they had good party data, and that was 0:09:39.679 --> 0:09:42.800 the twenty twenty presidential election, and the least the argument 0:09:43.080 --> 0:09:45.679 was that wasn't a good predictor because there had been 0:09:45.720 --> 0:09:49.320 more kind of a white crossover voting for Biden over 0:09:49.360 --> 0:09:52.800 Trump in that election. So the plaintiffs argued, and Justice 0:09:52.880 --> 0:09:55.840 Kagan suggested she agreed that in this case, actually the 0:09:55.960 --> 0:09:59.680 state used the race data because race data was more reliable, 0:10:00.080 --> 0:10:02.960 better predicted value than the more limited party data. The 0:10:02.960 --> 0:10:05.839 next question was, well, again this goes to Justice roberts 0:10:05.840 --> 0:10:07.920 point about there's no direct evidence, nobody got up in 0:10:07.960 --> 0:10:10.319 the state legislature and said, let's move the black voters. 0:10:10.600 --> 0:10:13.319 Her point was that it was on their computers, that 0:10:13.440 --> 0:10:15.640 was in their data, was in their face, and they 0:10:15.640 --> 0:10:18.600 couldn't have been unaware of it. And indeed, at one 0:10:18.679 --> 0:10:22.280 point in the trial, the lead witness for South Carolina, 0:10:22.400 --> 0:10:26.280 the principal map maker, basically said, well, we weren't doing 0:10:26.280 --> 0:10:28.319 this for race, but yes, of course we were aware 0:10:28.600 --> 0:10:30.839 of the racial data. And this is where the lower 0:10:30.880 --> 0:10:34.280 court basically concluded they really didn't believe him on that. 0:10:34.800 --> 0:10:37.439 They said that given the omnipresence of the race data 0:10:38.000 --> 0:10:39.760 as they were joining the maps, that they simply didn't 0:10:39.760 --> 0:10:42.520 believe his statement that the state was not rowing on 0:10:42.559 --> 0:10:44.640 the race data when it drew the maps. 0:10:45.120 --> 0:10:46.760 Coming up next, we'll take a look at how the 0:10:46.760 --> 0:10:47.560 court might rule. 0:10:47.720 --> 0:10:48.520 This is Bloomberg. 0:10:49.040 --> 0:10:52.160 I've been talking to Columbia Law School professor Richard Brefalt 0:10:52.480 --> 0:10:55.880 about Supreme Court arguments this week over whether it will 0:10:55.920 --> 0:11:00.640 reinstate a Republican drawn congressional map in South Carolina after 0:11:00.679 --> 0:11:05.760 a lower court concluded that Republican lawmakers engaged in unconstitutional 0:11:05.880 --> 0:11:10.120 racial gerrymandering in drawing what is now a Republican held district. 0:11:10.960 --> 0:11:15.320 Justice Samuel Alito was the most aggressive questioner of the 0:11:15.400 --> 0:11:18.400 validity of the lower court's decision. He posed nearly forty 0:11:18.520 --> 0:11:22.920 questions to the NAACP's attorney. What was the thrust of 0:11:23.000 --> 0:11:25.080 his questions or problems? 0:11:26.000 --> 0:11:29.199 I think he basically said that this is politics and 0:11:29.240 --> 0:11:32.160 that the burden was heavy on the plaintiffs to show 0:11:32.200 --> 0:11:35.040 that it wasn't politics and that it was race. Much 0:11:35.080 --> 0:11:37.000 of this went into some of the details about what 0:11:37.080 --> 0:11:40.400 some of the experts testify to or their failure to 0:11:40.640 --> 0:11:43.560 address every point that the state raised. Some of the 0:11:43.559 --> 0:11:47.120 experts testify to whether or not the district complied with 0:11:47.200 --> 0:11:50.439 traditional districting criteria, but not whether or not it was 0:11:50.920 --> 0:11:53.440 Others focused on whether it was partisan or racial, but 0:11:53.520 --> 0:11:56.240 not in the district criteria. So he felt that the 0:11:56.280 --> 0:12:00.000 expert testimony was inadequate to support the trial court's find 0:12:00.760 --> 0:12:03.800 He repeatedly raised the question about the alternative map, even 0:12:03.840 --> 0:12:06.559 as he acknowledged that an alternative map was not required. 0:12:06.960 --> 0:12:09.200 He sort of found that the absence of an alternative 0:12:09.200 --> 0:12:14.800 map undermined the plaintiff's case, and again he basically said 0:12:14.800 --> 0:12:16.640 that in some sense suggests that there was a heavier 0:12:16.679 --> 0:12:20.280 burden on the District Court to prove that it was 0:12:20.640 --> 0:12:23.200 race and not party, given the way that the two 0:12:23.200 --> 0:12:24.640 were so tightly intertwined. 0:12:25.400 --> 0:12:30.280 Justice Katanji Brown Jackson kept stressing that the court relies 0:12:30.360 --> 0:12:34.560 on the factual findings of lower courts, and she said 0:12:35.320 --> 0:12:38.280 it would be a dramatic shift to precedent if they 0:12:38.360 --> 0:12:42.920 overturned the trial court's findings. Is that true or if 0:12:42.960 --> 0:12:47.600 they find clear error, which Justice Clarence Thomas brought up 0:12:47.679 --> 0:12:51.400 right at the beginning, would it not be violative of precedent? 0:12:51.679 --> 0:12:54.320 Well, if they found clear error, it wouldn't be because 0:12:54.360 --> 0:12:57.600 the standard is clearly ironing. Is the district Court's findings 0:12:57.600 --> 0:13:01.760 are not immune from review to be clear error, as 0:13:01.800 --> 0:13:04.760 opposed to whether or not it was debatable in some sense. 0:13:04.800 --> 0:13:07.600 The US government, as I said, they came in on 0:13:07.679 --> 0:13:10.400 the side of the plaintiffs, on the side of the NAACP, 0:13:10.480 --> 0:13:13.280 and said, in effect, we think that the three judge 0:13:13.280 --> 0:13:16.320 court could have gone either way. There was evidence to 0:13:16.360 --> 0:13:19.199 support either position, but the position that the District Court 0:13:19.280 --> 0:13:22.640 found was reasonable given the evidence they had, and so 0:13:22.760 --> 0:13:25.480 that's why you should defer to them. I mean, one 0:13:25.559 --> 0:13:28.640 question that Justice Barrett raised to just maybe whether the 0:13:28.679 --> 0:13:32.200 standard should be higher in a case involving a state legislature. 0:13:32.559 --> 0:13:36.360 Maybe there should be more burden on the district court 0:13:36.400 --> 0:13:39.040 to show that the legislature wasn't acting in good faith. 0:13:39.520 --> 0:13:42.200 There's a kind of presumption that legislators state legislatures act 0:13:42.200 --> 0:13:44.280 in good faith, so maybe there should be a higher 0:13:44.640 --> 0:13:47.679 legal burden on the district court. And you're right. Justice 0:13:47.800 --> 0:13:51.760 Jackson was very heavy on it, sort of sticking to 0:13:51.800 --> 0:13:55.280 the traditional role of the district court in finding the 0:13:55.320 --> 0:13:57.199 facts and the duty of appellate court so that the 0:13:57.240 --> 0:13:59.559 first year had been at district court judge. It was 0:13:59.640 --> 0:14:02.559 kind of a civil procedure argument as much as anything else, 0:14:03.240 --> 0:14:05.480 that the traditional role of the court is to see 0:14:05.480 --> 0:14:08.520 whether the lower court applied the law properly, but to 0:14:08.559 --> 0:14:11.840 defer to their factual finding. The liberals were the strongest 0:14:11.840 --> 0:14:16.320 on this about the importance of following this traditional judicial 0:14:16.559 --> 0:14:20.120 role of deferring to lower courts on their factual findings. 0:14:20.560 --> 0:14:25.600 Most legal commentators concluded after hearing the arguments that the 0:14:25.600 --> 0:14:30.200 conservative majority is going to uphold the Republican drawn map. 0:14:30.440 --> 0:14:31.280 Do you agree with that? 0:14:31.640 --> 0:14:34.120 There were certainly a lot of negative questioning, even from 0:14:34.160 --> 0:14:38.160 some of the so called more moderate conservative justices. Remember 0:14:38.520 --> 0:14:41.920 the most recent case involving race and voting, Allen versus 0:14:41.960 --> 0:14:45.280 Milligan went off five to four, with two of the conservatives, 0:14:45.520 --> 0:14:49.480 Roberts and Kavanaugh, joining the liberals. Roberts was clearly pretty 0:14:49.520 --> 0:14:52.720 skeptical about the lower courts finding in this case. He 0:14:52.840 --> 0:14:55.920 seemed less likely. Kavanaugh's questions were a little bit harder 0:14:55.920 --> 0:14:57.960 to read. I mean, some of it was again about 0:14:57.960 --> 0:15:00.440 the evidence, but some of it also seemed to be 0:15:00.520 --> 0:15:03.200 indicated he was thinking about, what's the burden on the 0:15:03.240 --> 0:15:06.040 defendants in this case? Who are the appellants to show 0:15:06.040 --> 0:15:08.920 that the district court was clearly wrong? I think it 0:15:09.040 --> 0:15:12.520 was only a tough argument for the NAACP defending the 0:15:12.560 --> 0:15:14.760 lower court's finding. I think if they have any chance, 0:15:14.800 --> 0:15:16.680 it's going to be to the extent that the Court 0:15:16.680 --> 0:15:20.920 decides to rally around the idea that unless it's clearly erroneous, 0:15:21.200 --> 0:15:23.680 there should be difference in lower courts finding. On the 0:15:23.720 --> 0:15:26.960 other hand, this is the court's first sort of race 0:15:27.040 --> 0:15:31.120 party intertwined case since Rucho four years ago, when the 0:15:31.160 --> 0:15:35.640 Court said that partisan gerrymandering is not on conceiutional, it's 0:15:35.680 --> 0:15:38.480 non justiciable so it's the first time that they will 0:15:38.520 --> 0:15:41.880 speak to the how do you separate out race and party? 0:15:42.440 --> 0:15:45.520 And one could imagine they may want to shut down 0:15:46.240 --> 0:15:49.520 the idea that you could get around Rucho by reframing 0:15:49.560 --> 0:15:52.320 things around race. Now, the Court in the past has said, 0:15:52.440 --> 0:15:55.760 even if there's a partisan factor, that the state can't 0:15:55.840 --> 0:15:58.240 use the race as approxy for party when it draws 0:15:58.320 --> 0:16:01.440 lines to favor a party. But one could imagine this 0:16:01.480 --> 0:16:04.400 is a case where the Court might want to address 0:16:04.920 --> 0:16:08.280 the how do you disentangle race and party in a 0:16:08.320 --> 0:16:12.680 world in which racial jerry mannering is unconstitutional but partisan 0:16:12.760 --> 0:16:13.720 jerry mannering is not. 0:16:14.800 --> 0:16:19.000 Explain why this case is different from the case you 0:16:19.080 --> 0:16:23.920 referred to, the Alabama case, where it was surprising that 0:16:24.280 --> 0:16:28.280 the Chief and Justice Kavanaugh sided with the liberals there. 0:16:28.640 --> 0:16:30.800 That case was really about whether or not the Alabama 0:16:30.960 --> 0:16:33.600 violated the Voting Rights Act. This one is whether or 0:16:33.640 --> 0:16:37.560 not South Carolina violated the Constitution. Although the result in 0:16:37.560 --> 0:16:41.000 Alabama will have a partisan consequence, there wasn't an argument 0:16:41.080 --> 0:16:44.320 that the state was doing it to help the Republicans. 0:16:44.440 --> 0:16:46.120 It wasn't really an argument about the intent of the 0:16:46.160 --> 0:16:49.080 state at all. That case, under the Voting Rights Act. 0:16:49.240 --> 0:16:52.480 The plaintiffs can win if they show disparate impact, if 0:16:52.520 --> 0:16:56.000 they show that the state drew lines in a way 0:16:56.480 --> 0:17:00.240 that had the effect of minimizing minority voting power. I mean, 0:17:00.240 --> 0:17:02.960 the thing is, in South Carolina, the district that was changed, 0:17:03.000 --> 0:17:06.400 District one, was not going to be a majority minority district. 0:17:06.520 --> 0:17:09.360 It was going to be a white majority district either way, 0:17:09.680 --> 0:17:12.760 although for the larger black share of the voting population 0:17:13.160 --> 0:17:15.640 it might have been a democratic district, probably a white 0:17:15.640 --> 0:17:18.480 Democratic district. And that's sort of one of the differences 0:17:18.520 --> 0:17:22.600 here is that the court is somewhat sensitive to state 0:17:22.640 --> 0:17:26.440 actions that dilute minority voting power, but they don't care 0:17:26.600 --> 0:17:29.199 about state actions that chap on one party over another. 0:17:29.359 --> 0:17:32.880 And so the Alabama case was argued entirely around minority 0:17:32.960 --> 0:17:35.520 voting rights, although it turns out if you increase minority 0:17:35.600 --> 0:17:38.240 voting power in that state you were likely to get 0:17:38.400 --> 0:17:40.879 it was all I could have a partisan consequence here. 0:17:41.200 --> 0:17:43.719 Wasn't really a claim the minority votes were being diluted, 0:17:44.280 --> 0:17:47.080 just that voters were being moved around from one district 0:17:47.080 --> 0:17:50.560 to another. And so the case was broad as a 0:17:50.600 --> 0:17:55.280 case about intentional racial discrimination. But there was no claim 0:17:55.359 --> 0:17:57.800 that if the voters had all been just left alone, 0:17:58.440 --> 0:18:01.760 that district one would have been black majority district. It 0:18:01.760 --> 0:18:03.879 would have been a white majority district, although one that 0:18:03.960 --> 0:18:05.760 might have tilted more democratic. 0:18:06.640 --> 0:18:09.880 This case is the third time in two years that 0:18:10.080 --> 0:18:14.040 the Court has heard arguments about state's congressional lines, and 0:18:14.160 --> 0:18:17.000 two other cases are advancing in the lower courts in 0:18:17.040 --> 0:18:20.880 Georgia and Louisiana that challenge maps under the Voting Rights Act. 0:18:21.119 --> 0:18:24.080 Is it that the Court's precedent is not clear or 0:18:24.200 --> 0:18:26.720 are these kinds of cases always challenged? 0:18:27.119 --> 0:18:29.960 Well, I think anything evolving redistricting is going to be challenged. 0:18:30.359 --> 0:18:32.320 This case is different from the old ones. The other 0:18:32.359 --> 0:18:35.520 two cases, the one you mentioned our Voting Rights Act 0:18:35.600 --> 0:18:38.480 challenges where the plaintiffs are arguing that the way the 0:18:38.560 --> 0:18:42.679 lines are drawn reduces the ability of black voters to 0:18:42.760 --> 0:18:46.360 elect the candidates of their choice in districts which might 0:18:46.440 --> 0:18:52.199 generate more minority representation. Louisiana clearly so. And this one again, 0:18:52.600 --> 0:18:54.640 there wasn't a claim that you would have created another 0:18:54.680 --> 0:18:58.280 black majority district. Interestingly, the Court has tend to look 0:18:58.320 --> 0:19:00.439 at these things as to whether the going to be 0:19:00.440 --> 0:19:02.920 a sort of a majority minority or district where minority 0:19:02.960 --> 0:19:06.119 voters are likely to prevail at least have the opportunity prevail. 0:19:06.240 --> 0:19:09.679 They've been less sympathetic to arguments about, well, maybe minority 0:19:09.720 --> 0:19:12.560 voters must be more influential if they're a bigger share, 0:19:12.640 --> 0:19:15.160 but not nearly a majority, and so they haven't bought 0:19:15.160 --> 0:19:19.600 that argument. And so the voting rights arguments are always 0:19:20.080 --> 0:19:24.400 difficult because the plaintiffs have to show that there could 0:19:24.440 --> 0:19:28.919 have been another minority district, that there is racially polarized voting, 0:19:29.440 --> 0:19:33.000 and that under the totality of the circumstances, the setup 0:19:33.040 --> 0:19:36.000 is unfaired minority voters, and that's a tough standard to meet. 0:19:36.320 --> 0:19:38.320 And many people thought that the court just didn't seem 0:19:38.359 --> 0:19:41.880 that interested. The Allen case kind of maybe not revived 0:19:41.920 --> 0:19:45.119 that standard, but confirm that that is still the standard. 0:19:45.520 --> 0:19:47.800 And so I think it's what's given to wind at 0:19:47.800 --> 0:19:51.000 the backs of the people bringing the challenges. Nonetheless, there's 0:19:51.040 --> 0:19:53.879 a slow slog through the courts, even if the district 0:19:53.920 --> 0:19:57.240 courts are favorable. What's happening in Louisiana is the appellate court, 0:19:57.280 --> 0:20:00.280 the Fifth Circuit, is slowing everything down. So so it's 0:20:00.320 --> 0:20:02.679 not clear we're going to get any decisive changes in 0:20:02.680 --> 0:20:04.800 those two states before the twenty four election. 0:20:05.119 --> 0:20:07.600 Lately, it always seems to be the fifth circuit that's 0:20:07.600 --> 0:20:10.520 a hang up. Thanks so much, rich that's Professor Richard 0:20:10.520 --> 0:20:14.200 Brafalt of Columbia Law School. Coming up next, we'll talk 0:20:14.240 --> 0:20:17.919 about the star witness in Sam Bankman Freed's trial, his 0:20:18.040 --> 0:20:21.440 former girlfriend. I'm June Grossow and you're listening to Bloomberg. 0:20:21.880 --> 0:20:25.600 Prosecutors have built their case against Sam Bankman Freed by 0:20:25.680 --> 0:20:29.520 tapping into his inner circle and reaching cooperation deals with 0:20:29.640 --> 0:20:33.639 some of his closest confidants. And this week, the government's 0:20:33.680 --> 0:20:38.960 star witness, Caroline Ellison, the former CEO of Alameda Research, 0:20:39.320 --> 0:20:43.719 testified against her former boss and boyfriend. From her first 0:20:43.760 --> 0:20:47.200 minutes on the witness stand, Ellison pointed to Bankman Freed 0:20:47.320 --> 0:20:50.480 as the man responsible for the loss of billions in 0:20:50.520 --> 0:20:54.920 customer funds and the collapse of the cryptocurrency platform FTX. 0:20:55.359 --> 0:20:59.359 My guest is former federal prosecutor Jordan Estez, a partner 0:20:59.359 --> 0:21:03.439 at Kramer Leans. It seems like the government here has 0:21:03.520 --> 0:21:08.080 an overwhelming amount of evidence against Bankman Freed. Witnesses who 0:21:08.119 --> 0:21:11.160 were in on the alleged fraud code that was altered 0:21:11.280 --> 0:21:16.200 balance sheets, texts, internal documents. As a defense attorney, how 0:21:16.240 --> 0:21:18.760 do you defend against that kind of a case. 0:21:19.560 --> 0:21:24.080 It's certainly very challenging in these circumstances. The one thing 0:21:24.160 --> 0:21:28.080 I think the defense is doing, and they're trying to do, 0:21:28.480 --> 0:21:33.080 is create a record that this was actually legitimate business. 0:21:33.240 --> 0:21:36.399 Nobody thought they were doing anything wrong, So they're going 0:21:36.480 --> 0:21:39.000 to try to do that through the cross examination of 0:21:39.040 --> 0:21:41.359 the witnesses of the company. I do think it's a 0:21:41.400 --> 0:21:45.520 real challenge in a case where witnesses like Caroline Ellison 0:21:45.680 --> 0:21:50.720 seem to have fully embraced that the conduct was wrongful. 0:21:50.800 --> 0:21:53.840 So if you have a witness like that, they're really 0:21:53.880 --> 0:21:57.680 going to have to attack her credibility through cross examination. 0:21:58.280 --> 0:22:00.880 And there seemed to be some angles for given her 0:22:00.880 --> 0:22:04.240 prior relationship with the defendant. You know, perhaps they have 0:22:04.359 --> 0:22:07.560 some documents up their sleeve that nobody knows about. That 0:22:07.720 --> 0:22:09.920 is a benefit of being a defense attorney is that 0:22:10.280 --> 0:22:12.639 you can hold some things back that can be surprising 0:22:12.720 --> 0:22:15.960 during cross examination. But I do think from my read 0:22:16.000 --> 0:22:20.200 of her testimony it was very overwhelming. It's in very 0:22:20.240 --> 0:22:23.000