This is Bloomberg Law with June Brusso from Bloomberg Radio.
The US Supreme Court will take up a new clash over the use of race in redistricting, agree to hear arguments on a Louisiana congressional map that creates an additional majority black voting district. But the Court won't hear arguments until early next year, and the twenty twenty four elections are proceeding under the challenged map, which could boost Democrats' chances of retaking the closely divided House of Representatives. This is the latest step in more than two years of
federal court battles over Louisiana congressional districts. The state has had two congressional maps blocked by lower courts, and the Supreme Court has intervened twice. Joining me is Bloomberg Supreme Court reporter Greg Storr. We've been hearing about this Louisiana map for years, So tell us the history here.
Yeah, it's a convoluted history. The key practical question is whether there has to be a second majority black district in Louisiana. Louisiana has six congressional districts. About thirty three percent of the state is black, and the question is when the districts are being drawn, isn't enough just to
have one majority black district. And so there was a Supreme Court decision back in twenty twenty three involving Alabama that was very similar, in which the Court essentially said, yeah, Alabama has to have a second majority black district under the Voting Rights Act, which basically protects minority voters from having their voting power diluted by the way districts are drawn.
And it seemed like Louisiana was going to go the same way, but then another group of voters, a group of voters opposed to the second majority black district, sued and said the way the state drew this up is so convoluted, it's so jerrymandered that that violates the US Constitution. They used ray too much in doing that. And so this case at the Supreme Court is going to sort
of determine the balance between those two issues. The Voting Rights Act that says essentially, you know, create a majority minority district when you can, and the Equal Protection Clause, which the Supreme Court is interpreted to put limits on the ability of mapter ours to use race.
The disputed map will be used on Tuesday.
It will be there will be a second majority black district on Tuesday in the election, and that will probably be a shift another Democratic seat in Congress because of that new map.
And explain how there have been unusual dynamics in this case.
Yeah. So interestingly, both the Republican controlled states, including the Republican Attorney General Liz Murle and the NWCP Legal Defense FUNT, ask the Supreme Court to intervene and uphold this map. And the state, you look, we're being put in this ridiculous bind. On one hand, we had been because of another court case ordered to create a second majority black district. And on the other hand, this different court comes along
and tells us, nope, used race too much. And so Louisiana argued that even though we didn't agree with the original decision requiring a second majority black district, here you're basically turning us into the way to live Mura put It were like a ball stuck at an endless game of King Pok, And she argued, the state's got to have a little breathing room to create districts.
And so while I have you, Greg, just explain what the court did or didn't do as far as Pennsylvania on Friday.
Yes, So this was a case where Republicans were asking the Supreme Court to intervene and stop some provisional ballots from being kind of potentially tens of thousands of provisional ballots. And what these are folks who voted by mail and there was something wrong with their mail in ballot, like,
for example, they didn't include the required secrecy envelope. And so under a Pennsylvania Supreme Court decision, those folks were going to be allowed to cast provisional ballot, so that the original flawed ballot wasn't going to count, but they could go to the polls and vote anyway. And Republicans were asking the Supreme Court to intervene and say, no, those folks are not allowed to cast provisional ballots. They basically lost their chance because they submitted that flawed mail ballot,
and the Supreme Court said, no, we're not going to intervene. Essentially, we're going to let those votes be counted. None of the justices dissented. There was a statement by three of the conservative justices on some aspects of the case, but no disagreement at the Supreme Court about letting those votes count.
But there was disagreement among the justices earlier in the week on Wednesday about Virginia purging voter rolls. That was a six to three decision.
Yeah, well, they're very very different legal issues. The Virginia case was all about whether the state could purge its voter rules in the run up to the election, just before the election, and what it said was an effort to remove non citizens from the polls, even though if you at least some folks who were citizens were also purged from the roles there. The Pennsylvania issue was very, very different in that it's the kind of thing we might actually see after the election if the election is
super close. It's a question of how quick will the US Supreme Court be to jump in and say, State Supreme Court, you misinterpreted your own law and we're going to overrule you. And at least this one particular data point says at the moment, the US Supreme Court is not that interested in telling a state supreme court that it's done something wrong and for example, should not have counted some votes.
Thanks so much, Greg, that's Bloomberg. New Supreme Court reporter Greg store turning now to the one million dollars a day voter giveaway by Elon Musk's pro Trump Superpack that the Philadelphia District Attorney is trying to stop as an illegal lottery. Here's how Musk has characterized the giveaway. We are going to be awarding a million dollars to randomly to people who have signed the petition.
Every day from now until the election.
But today in court, Musk's lawyer made a surprising admission, saying that the winners are not chosen by chance, but are selected based on their suitability to be a public spokesperson for Musk's political action committee. Bloomberg's Crystal Mesh was in the courtroom. Chris tell us about this admission.
What's clear is that Musk bet on stage, you know, these people are being chosen at random, And what's the treasurer for the pack that stified today is He said, he was a little bit surprised by that because essentially what they they are calling it is an employment contract
that these people are chosen. You know, once they sign the position to refer others, they're chosen based on the number of people they refer, you know, their social media posts, things like that, and it's not because they're just chosen their band. They made that pretty clear during the hearing, and that's why they say it's not an illegal lottery.
They're basically say they're employing these people and the work that they're doing is making videos, you know, speaking on behalf of the pack, that sort of thing.
I mean, did the people who sign up for this know that that's the way they were being chosen?
Well, it's not clear. I mean, so at least the first person was chosen before he was told, he was told he was going to appear on stage. He made some videos, but he didn't know until that moment when he was selected. As to the other winners, it's not there how much they knew or what they suspected. But they were also told that they were going to appear on stage, So the possibility is that they were not really in the dark there as to what might be happened.
Tell us about the testimony of the Philadelphia DA Larry Krasner.
He said essentially that he've used this as a violation of both state's lottery laws and its consumer protection laws, mostly because they're taking the individual personal information of the people who got the money. He also argues that the lottery laws would be violated because they require free things, there to be a prize, there to be an element of chance, and for there to be compensation, meaning that
somebody has to pay to get in. He contends that to pay that they are giving is their information and that it therefore violates the state laws, and the rgues they're not protecting their personal information. He said, they're essentially trying to buy votes. So it was relatively testy points during the cross but it was all in all mostly congenialous change.
What was his reaction to their saying that now this is not a lottery, it's not random.
Well, the Philadelphia DA was incredulous to stay the least. He called it one of the more disingenuous arguments he's ever heard during his decades of practicing law. He contended that it was essentially nonsense. He thought it was outrageous to say the legal the most entertaining part of it, without a doubt. He was asked to be on to testilize and said, he asked you on to twenty sixteen. He used to be a mechanic, and he appreciates the vehicle.
And then he was asked about you know, the political accusations that he's doing this simply political point and he said, he said Taylor Swift did the same thing.
He would bring a complain against her.
Was Elon Musk there, he was supposed to attend, right.
He did not. And honestly it was kind of interesting because you know, the judge said last week was supposed to be here, and he clearly was not. He didn't testify. Uh, he didn't even There was no real address to that other than the DA pointing it out once again. So whether the judge, you know, gives that any weight as the credibility and that's sort of thing the DA you know, implied that, you know, basically they're they're running away from it. And the fact that he didn't show up at them not.
Addressing Thanks so much, Chris, that s Bloomberg Legal reporter Chris Domesh. Shortly after the hearing, the judge ruled that the million dollar a day sweepstakes can continue through election day.
He did not give his reasons for that decision, but Musk's lawyers in closing arguments had called it core political speech, given that participants sign a petition endorsing the US Constitution They also said that Krasner's legal bid to shut down the sweepstakes under Pennsylvania law was moot because there would be no more Pennsylvania winners before the program ends tomorrow.
The first three winners came from Pennsylvania. Other winners came from the battleground states of Wisconsin, Nevada, Arizona, Georgia, North Carolina, and Michigan. Krasner has said he could still consider criminal charges as he's tasked with protecting both lotteries and the integrity of elections. Coming up next on the Bloomberg Lane Show, two prosecutors fired by Florida Governor Ron de Santis are asking voters to reinstate them. And I'm June Grosso and
this is Bloomberg. Florida Governor Ron de Santis removed two elected prosecutors from their jobs, saying they refuse to enforce the state's laws. Now, Andrew Warren and Monique Warrel, both Democrats, are asking voters to reinstate them as district attorneys. Joining me is Alex Ebert, Bloomberg Last senior correspondent, So Alex tell us about these two former prosecutors who are running for reelection despite being ousted by Ron de Santis.
So, these two former prosecutors, both progressives and both outspoken critics of Governor Ron de Santas, were both terminated by the governor, he says, for refusing to follow the state law. And they say it was all part of their discretion and their ability to pick and choose what crimes they're going to tackle, and.
So tell us about the court battles.
Absolutely, so the court battles ranged from state and federal, and they both didn't go the prosecutor's way on the state level. Both Andrew Warren and he's in Tampa, and Monique Warrel and she's in Orlando. They assued in the state Supreme Court seeking a special writ to get them back into office, and the State Supreme Court said that Warren he waited too long to sue he started in feral court and Warrel she didn't have enough back into
her complaints. Basically, they ruled that Warren, you were too late, too short, and Warrel, what you did is arguably within the discretion of the governor to get rid of you for.
And now they're running for the same seats that they were ejected from by the governor.
That's right. They're running for their old jobs back and both of them are in districts the Democrats do pretty well, and Worrel won a landslide back in twenty twenty. She had like sixty percent of the vote. Warren was around the mid fifties with his election. And both of them are once again running against prosecutors they think they can take on.
And are they running against the prosecutors that DeSantis put in place after he removed Warren and Warrel.
Indeed, yes, it is like they're running against exes right there. So in Tampa, we've got Warren running against State Attorney Lopez, who we interviewed with for Our Peace and she touts all of her great relationships with local law enforcement. She was in the office for over a decade and she was tapped to be a local judge before being tapped once again by De Santas to take over that state
attorney's office. You know, she said that she's focusing on prosecuting more low level crimes and focusing more on the interest of victims than Warren did when he was the prosecutor there.
I mean, have there been polls out to see, you know, who's doing better?
Not to my knowledge I got with the attorneys that were running here, and they didn't share with me anything. What is well known is how sort of striking the voting public is here. You know, you have districts that lean Democrat, you know, especially in the Orlando area, and even though DeSantis was winning across the state, these individuals were able to easily win their offices four years ago.
The amount of money being poured by conservatives into these races is just amazing. Backers of Dessanders's replacement for Warren, Susie Lopez, have spent two point one million dollars on ads and groups supporting the other desand disappointee Andrew Bain has spent two point three million dollars.
It is iepopping. So the amount of money is involved in the ninth district race that's Swirl and the thirteenth district race that's Warren together, that is more than four times as much as you're seeing spent statewide.
And in those.
Specific races, the Republican or conservative sides are vastly outspending the Democrats. You see figures as much as ten to one spent in these races seeking to have these conservatives hold on to their posts.
If they do win, will DeSantis remove them again?
This is an open question, and it's one of the reasons why this becomes such a flashpoint for this broader discussion across the country. We've seen states where progressive prosecutors were recalled right or they've paced immense criticism and they lost their next election. But this is the first and second instance where we've seen a governor literally remove the
progressive prosecutors just because of a difference in discretion. You have Warren who had refused to enforce abortion related crimes, and you had World whose policies were to seek more diversion and more non bail related pre trial release, and because of that, DeSantis said that he could remove them.
National experts in criminal law and others that follow this issue closely say that this could be a template for other governors or even a Republican president to seek to remove or work around local prosecutors.
You know, there have been different places where these conflicts have arisen. Do they only arise when it's liberal prosecutors elected in cities in a state with a conservative governor or legislature?
Experts at the ABA discuss this topic with me. They've researched this issue really thoroughly, and what they've come across is that you're seeing mostly this occur with progressive local prosecutors and Republican governors. However, you've seen for years this issue where democratic governors or data attorneys general will seek to take issue used off the plate of the local prosecutors or seek to bring cases that local prosecutors won't bring.
You've seen things like that in states like Massachusetts, Minnesota, Michigan, where liberal executives or other state officials will sort of work around the local prosecutors and do things they don't want. The most high profile version of this was back after the jobs decision came down. Michigan Attorney General Dana Nessel came in and she wrestled power from local prosecutors saying
that no, you can't bring abortion related crimes. She went to court to get a declaration from a state court saying no, that's the job of the state attorney general and our policies that we're not going to prosecute these.
Has anything like this happened in Texas?
Indeed, it's an open question in Texas. My colleague Ryan Otulio, the Great correspondent, we have in Texas did a great story about this last week on this very issue, where there's a job that will be considering whether a desearch attorney there should be taken out. There's other issues in Georgia surrounding the prosecution of Trump and in Tennessee where lawmakers there are actually campaigning and possibly taking out a progressive prosecutor.
These progressive prosecutors were probably elected by voters in a city or area that is more liberal than the state. How does the governor have the right to take away their vote?
So I had pretty in depth conversations with national experts for this story over several months, and the bottom line is that there's a gray area here. So prosecutors under the law, they have unlimited discretion, but at the same time, there's court rulings that say, if you're categorically refusing to enforce parts of the state law, that might be reason
to say that you're not actually doing your job. DeSantis is leaning on some Florida president in his state that says basically exactly that for a prosecutor that refused to prosecute gambling issues. So you know, both sides have pretty strong legal arguments, and the question is you know, how do we balance that need for, you know, the protection of local citizens against crime with the ability of prosecutors to innovate and to consider what's the most important thing
for them to do. Because at the end of the day, we can't prosecute all the crimes. The question is can we look the other way if certain crimes should be prosecuted.
Do these cases arise only when a prosecutor says I'm not going to prosecute abortion related crimes or I'm not going to prosecute gambling related crimes, where a prosecutor is sort of, you know, drawing a line in the sand, or does it happen because they notice that prosecutors are not are not going after certain kinds of criminals.
That's the distinction between Warren and Worl.
Right.
So, Warren is one of dozens of prosecut uters whom, after the Job's decision, came out and signed a statement saying I'm not going to prosecute abortion related crimes. And the interesting thing for Warren's perspective is there have been no crimes like that committed inside of his district, you know, And both Republicans and Democrats will point to that but regardless that categoric Cobar got him in trouble with war.
What's different the Orlando attorney she got in trouble because of her policies, which DeSantis said, reduced sentences at jails, so there were fewer people being jailed, and because criminals that you know, normally would have been locked up prior to trial, you know, because of her policies were able to be outside of the carstural system at the time
and had committed crimes. And so he pointed to that as a version of incompetence, while she pointed to that as something that she was trying to implement with her discretion to improve the local criminal justice system.
Tell us about these legislation in twenty seven states that the bills that they filed.
This was a topic that I hadn't expected to come up when I was looking into this. You know, often at Blomberg WA we do sidetrack sort of legal and legislative analysis to look at this. But a law professor brought this up and said, there are twenty seven states where legislators are seeking to improve governor's ability to remove
local prosecutors. You know, many states they're not going to have the ability to do that unless there's some sort of truly bad ethics issue or competence issue, or, as the experts told me, issues revolving around you know, drug use or alcoholism in an office. Right, those are instances where we've seen these things happen in the past. But lawmakers here, typically Republicans, they're looking to empower the governors
to remove people the same way that Desantist did. And that's something that in Project twenty twenty five to see the Heritage Foundation encouraging the next president of the United States to consider doing as well. Their argument is, you know, if you're not enforcing all the laws in a particular jurisdiction, they're getting enforced in other parts of the state, that's not equal protection under the state constitution or federal constitution, because you could be you know, put in jail for
a crime in one area and not at another. Whereas you know, the people that are criticizing these lawmakers, they say this is actually undoing the votes of local voters who want to have their policies followed and the crimes they think most important, you know, be the emphasis of their state attorneys.
And you talk to someone who said there was a concern about prosecutors worrying about keeping their jobs instead of worrying about the job that they're doing.
Professor Ellen Yarshevsky over at Hofstra Law School, she's one of the co chairs of this American Bar Association Criminal Law Section that is studying prosecutorial and what she said is the main concern is that instead of sentencing how they should based on the local rules and you know, what they're seeing at their office or filing charges that properly align with their priorities, Prosecutors whether they're Democrats or Republicans, now might have to look over their shoulders and think,
what is the governor going to think about this instead of what is the best thing for my local community? You know. She said that extends from bail, to sentencing, to charging or going to over or under charge instead of using their own discretion. She's worried and folks at the ABA are also worried that we're going to see prosecutors now think first, what would the governor want?
Thanks so much for being on the show, Alex. That's Alex Ebert Bloomberg Laws, Senior correspondent. Coming up next. The justices here arguments over the False Claims Act. This is Bloomberg today the justice is considered what a government dollar is.
Federal Communications Commission fraud case. Whistleblower Todd Heath filed a false CLAIMSAC suit in two thousand and eight alleging that telecommunications provider Wisconsin Bell overcharged schools and libraries for services under the FCC's E rate program, resulting in the fund paying out more money. But Wisconsin Bell argues the government couldn't have been harmed by the alleged misconduct because the fund is financed by the telecommunications providers and not the
federal government. Joining me is Joe Whitley, a partner at Womble Bond Dickinson. He's the former US attorney for the Middle and Northern Districts of Georgia. So tell us about the issue here.
This is the false Claims AC case being brought by a relator by the name of Todd Heath, and mister Heath followed this action in the name of the United States. That's how the false Claims statute works. And before he filed, he met with the United States on this filing in the United States at that time decided not to intervene
and join mister Heath in the action. So this action then was filed in the Eastern District of Wisconsin, and a district court there in the Eastern District granted summary judgment to Wisconsin Bell and mister Heath, the relator in this case. Appealed this case to the Seventh Circuit, and the Seventh Circuit reversed the district court, But then Wisconsin Bell appealed this case to the US Supreme Court.
Wisconsin Bell is saying that the government doesn't provide money to the company that administers the Universal Service Fund. When the post office delivers a birthday card with a twenty dollars bill inside, no one would doubt that Grandma, not the government, provides the cash. Explain their argument correct.
They're saying that the money that is being distributed, or the funds that they have in the account they provide money to, is not federal money. In other words, going back, I could go back to eighteen sixty three when the Congress passed the first version of the False Claims Act. It dealt exclusively with federal money, in other words, money that had been appropriated by Congress for the provisions that
were needed during the Civil War. There was a lot of corruption happening in terms of government contractors providing materials to the Union government, the United States government during the Civil War. So at that time that was what it
is contemplated to cover, only moneys appropriated by Congress. And in this circumstance, Wisconsin bella is saying, you know, in present day, all of the money that's in the account, the distributed out or provided reimbursement to telecommunications providers is not public money, not appropriated by the Congress, and it's not money from the US Treasury.
And does the government agree with Wisconsin Bell or the other side.
No, the government is taking the position that this provision could reach these funds and that there could be actionable cases against telecommunication providers if they don't provide. In other words, the issue is was Wisconsin Bell providing the lowest possible rate to schools and libraries and the relator says they were not providing lowest corresponding price also known as LCP
under the c rate program. So that there is at least some suggestion that the government sees this, I would think as an opportunity to reach other conduct where there could be does an argument the government would be making that this does reach the conduct to Wisconsin.
Bell is that also the argument of the real.
Yes, the relator believes that the funds are from the US Treasury in the sense that some portion of the funds are fines, delinquent payments, criminal find some small amount of money actually in the fund is from arguably from the government. Relater is also arguing that the fund is also the E rate program is acting as an agent of the United States under this program because of the
provisions are legislated and are regulated. And Congress is also involved because you know where as they set up this program via the regulations that the FCC created, and they believe that the position of the Fifth Circuit is incorrect and that this is covered by the legislation and that this should be conduct that falls within the false Claimed Act.
I mean, which argument do you think is better?
I have a bit of a bias having been a federal prosecutor and having been a US attorney in two different offices here in Georgia, Atlanta and Macon, and then also serving in the Department of Justice and a number of high level positions. I would prefer that this is a direction that we should go in, that this would
be legislated by Congress. At Congress take a look at the reach of the False Claims Act, and if Congress deems there be a need to expand coverage here under the False Claim Act, so the E rate program would be covered, I would suggest that would be a better path, because there is some suggestion that if this case were to be resolved in favor of the relator, relators arguments that False Claims Act cases could be brought against the Fannie May and Freddie mac programs, which are mortgage programs
that provide insurance for mortgages in situations like that. This could also perhaps the Boy Scouts that are set up under federal law, and the Veterans Affairs veterments of foreign wars. Perhaps there is another group that could be covered, and
the damages in these cases are extreme. In other words, if you're a mortgage company and you're using Fanny May or Freddie mack Is for insurance on your mortgage, if you provide information that somehow is deemed to be faulse, you might be facing trebled damages which could be substantial, and then fines of five thousand dollars to eleven thousand dollars per claim that you might have a file with
the government. Arguably, so, I just I don't think any of this was contemplated, and I guess maybe some thought about this kind of original intent, if you will, and the legislation going back to Lincoln and Congress in eighteen sixty three. I just believe that this is a step beyond what is contemplated under the law, and that should be legislated by Congress, and then the FCC could provide regulatory coverage for this. But I think it's a bit it's a step too far, in my opinion. I'm taking them.
I believe we shouldn't have the Supreme Court or any court legislating and effect I think that's what the Circuit Court did in the Seventh Circuit.
So how do you think the Supreme Court will rule?
Well, I think looking at the most recent Chevron case and how the Chevron case came out in the words that Chevron had been a doctrine that most administrative lawyers kind of took as a given in their analysis of administration or administrative regulations, and I think that that is a harbinger for this case. I think the Supreme Court
will well side with the Fifth circuit. In terms of this circuit split, I think they will say that the reach of the False Claims Act does not reach circumstances like this where the funds are not government funds, and will suggest that the role of Congress should be part of this in our separation of power's government. And if Congress deems that this re should that rea should the false claims actually cover this particular fund, that that should
be legislated. And I think in a six three decision, I can see the there may be being a split in the in the justices, or it could be you know, they'll be they'll all agree and have a nine to o decision. But I don't see this as you know, a political case. But I do see it as you know, what what role do relators have and what roles do plans have in in sort of structuring the law here.
And I think that the prevailing provision or prevailing opinion is that this this, this, uh, this action or is not supportable and the False Claims Act.
Do we know how much money is involved here?
I think that that would be the determine in the litigation in court, but it would be it I believe in the tens of millions of dollars that Wisconsin Bell might be arguably liable for. I can't give you an exact amount, but obviously Wisconsin Bell would not be litigating this unless they thought it merited. They're doing so, and
I think they've done a good job. Nonetheless, we're talking about millions of dollars not only in this case, but in many, many other cases it could be brought simming the court takes a more expansive view of the False Claims Act.
Thanks so much for joining me. That's Joe Whitley of Womblebond Dickinson. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso, and this is Bloomberg