Immigration Chaos at the Border

banks of the Rio Grande. A massive migrant camp sprouted in the town of Del Rido, Texas, speaking at about thirty thousand people, mainly Haitians, many of whom have been in Mexico or other Latin American countries for years. The camp has now been cleared. Some migrants have been deported, others have been allowed to stay in the United States, at least temporarily, to pursue their claims for asylum. However, the controversy over the treatment of the Haitian migrants remains.

Joining me Is Leon Fresco, a partnered Hollanden Night, a former immigration official in the Obama administration. Leon there's been outrage over the conduct of these border patrol agents. So it's clear that what they were doing was they were taking the reins from the horses and using them to try to restrain people trying to come into the country and also to push people back into Haiti. But the point is, regardless of what you're doing, a the opticks

of the situation are unfortunate. But all of this is a result of a lack of planning on how to

address foreseeable surges into the southern border. And so this is where I have a bit of frustration because I had a lot of sympathy towards the Binden administration, but this is now October basically, and you could have taken the time period that existed due to the COVID crisis and due to the fact that when you inherited the border it was a closed border and say to the immigration community, we need a few months to build the plane first before we fly it. And the problem is

you haven't had that. You had them trying to hold times to simultaneously fly the plane and build it, and so you've never put the capacity there to have expedited processing, to have sent adjudication of asylum, so that you would never get to a position where you would have thousands of people surging in any one location. Now we've heard a million times and Secretary Majorcas said this, the immigration

system is broken. But do they have the ability to do what you just suggested within the parameters of what they're working with. Well, the point is you never have the ability to do it instantaneously, but you have the ability if you invest in a momentary pause to build a system with your allies in the region that actually has regional processing centers all around the region where people

can go and asked for asylum or refugee status. And then if you try to get around them and go to the southern border, you would tell people know there's no entrance. That's a lot here. You're being excluded from the country because you have to apply for asylum through these regional processing centers in Mexico and in Central America. There was a way to do this, and unfortunately this time that could have been used during the COVID era to say the people, look, we can't allow people to

come in through the southern border. During the COVID area, we weren't allowing people to do this viasa the Europe until November. You could have used that same time period that we had with Europe and built a very solid refugee system the process people abroad, and that was fair and actually had a robust number of people that you let in. You could have done that, but that wasn't done. Maiorcas was asked if the administration policies are encouraging more immigration.

Is that true to a certain extent. Are some of the migrants coming here because Biden is in office. Well, there's always a factor here that's sensitive to what people are hearing, and so what people are hearing sometimes can be true, and what people are hearing can sometimes be false. And so you can't control if smugglers are telling people

false narratives about coming to the United States. But in this case, the narrative had some truth to it because you had, For in the Haitian example, the temporary protective status for Haitians in the United States was extended to a larger group of Haitians than had already had that status,

and I agreed with doing that. The point is, if you're going to do that, and then you have to say, well, the foreseeable outcome of that is there's going to be a desire from other Haitians to want to come into the United States to see a Vaguan take advance of both this program or maybe a later extension that would happen for additional Asians. And so at that point, that's where you have to say, these things don't happen in

a vacuum. We have to have a system that is compassionate, but also it is stringent for people who don't want to use the vehicles of compassion. And that's the place where I think there will be an equilibrium on this. You're starting to see it, but the equilibrium is going to take some sing to develop. Man, what do you think is likely to happen with the investigation into the

border agents. Well, the point is this, whenever there's any use of force, which is essentially what this is, you have to go through the protocols of a use and force investigation and determine whether the use of force was justified or not in a picular situation. And the problem with a lot of these video footages if you don't get the whole context of what was happening before, what was happening after, nobody has any idea. Now, are the videos that you saw in the sharp context that you

saw them in pleasant videos to look at. No, they are not. But until you have all of the information and all of the facts, it's hard to make a determination that someone acted without cause or acted in the wrong way because you don't know what they're trained to do in that situation. You don't know what was happening, you don't know what they did in the reality the minutes before that, and so there's nothing that anybody can say commenting on it that takes the place of an investigation.

That's what's required under the law, and so that's the new pace that's that's necessary here. As far as the numbers we've been given on the Haitians, about twelve thousand, four hundred were released into the US waiting to have their asylum cases heard by Immigrant Asian judges, five thousand processed by DHS, three thousand in detention, eight thousand returned to Mexico, and only about hundred were on flights to Haiti.

So my first question is what happened to the Biden administration using Title forty two to turn the Haitians away. Did they decide it wasn't a good idea. I think they've been pretty consistent about the fact that they want to use Title forty two in situations that it's single adults. In situations where there are families or unaccompanied minors, they are not wanting to use this title forty two authorities.

And so the reason you saw these dis joints that outcomes is because there were some number of people in families and they didn't want to use the title forty two and families, and even with some single adults, you can't use Title forty two if they have absolutely no paperwork and Mexico isn't willing to accept them. So you have to have some plan for once you send them to Mexico, what's going to happen to them, because Mexico is also a partner in the Title forty two efforts.

And so it's a lot easier to use Cital forty two with mexict maginals or even with Central American nationals that Mexico can have a plan for wek creating back

to their neighboring country. But with Haitians, it's a lot more complicated to use Cital forty two because the Haitian doesn't belong either in Mexico or Central America or the United States or anywhere else they belong, either in Haiti or some of them had gotten some permission to reside in other parts of South America, and so Mexico would say, why are you bringing these individuals here? They have no jurisdiction to be here, and so that's why you saw

these disjointed outcome, he said. The Biden administration doesn't like to use Title forty two to expel families, but they're appealing a judge's order that forbids them from expelling migrant family under Title forty two. Yes, and I think there's two issues there. Number One, there's the issue of having the tool in the tool box, and so they definitely believe that they need to have the tool in the

tool box. But simultaneously, while they're in this litigation, they don't want to have thousands of families being excluded under Title forty two because a that weakens their litigation position that they're only using this tool when it's absolutely needed. But be they don't actually have a lot of desire to use this tool for families, because there is some sympathy for these children, especially sometimes when the children are vulnerable ages and you're seeing them at the order and

you're seeing very sympathetic cases. It's hard to sympally just turn those people back and say good luck to you. You know, never come here, and whatever happens to you happen. And so you have those factors. You have the sympathy factor, you have fact that in the litigation you're trying to keep the tool alive for when it's really needed. And also though you don't want to have thousands and thousands that in the cases, because it makes it a lot easier for the platance to win than if you say

you're using it only for cases where it's absolutely needed. Now, a notice to appear is typically the first step in the deportation process, but the buying administration is handing out notices to report. What's the difference. So we talked about this in the past. There's been this litigation about that your removal proceeding is totally nullified under the law. Now, the Supreme Court has said this twice if you get a notice to appear that doesn't have the exact time

they place and location of the hearing. And so what happens is when you're having thousands and thousands of people and you have no idea where the heck these folks are going to how can you say, appear at the U S Immigration Court in Chicago on October fourth at at seven thirty a m. You don't know. It's it's way too complicated. And so what they want to do is try to get people to do an ICE check in and only then issue the notice to appear that

has the data that's needed. Because if you issue the data that's needs and usually the notice appear without the data that's needed, and then the person either misses the court date or never shows up or anything, then you actually can't move forward with their removal because everything was void. You never gave them the right process at the beginning.

So what they're trying to do is a range of situation where the person doesn't show up to their ICE check in, they can be detained and then you can give them their notice to appear with their actual right hearing day. And actually what you would do if you would do it in the detention facility itself, as you would say, here's your first hearing, and once you've given them their first hearing from them on, you've complied with

the requirements under the law. The DHS Secretary also spoke about the conditions for asylum, which we've talked about many times, and it seems that when you you listen to the stories that a lot of the Haitians are claiming asylum for economic reasons, would economic reasons ever get you asylum? Purely economic deprivation is not sufficient to get asylum. Now, you can have a situation where if what you're suffering

is pure economic deprivation because of your political opinion. So let's say they say people who supported this presidential candidate will never be allowed to get a job or access to banking, or access to food or anything else. Even if you're not tortured or not placed in jail or anything,

that can be asylum. But if there's general economic deprivation countrywide and it's not based specifically on your political opinion or your social group, or your religions, or your race or your national origin, then that's never going to be sufficient to get asylum. Which is why many people who apply for asylum don't end up qualifying, is because you have to fit that very narrow group of people of

why they're suffering. Some people are predicting that this is going to happen at the border again, is the Biden administration doing anything right now to prevent this from happening again. Well, the only thing that's happening right now under the Biden administration is they're trying to get a new regulation out that would make meritorious asylum claims easier to grant right there at the border, so that the less meritorious asylum

claims are placed into a smaller pile of cases. The problem is at the end right now, the current backlog is in the millions, and no matter who you're placing in this quote unquote smaller piles, and no matter who you're prioritizing, you're seeing this already, for instance, in Boston and in Los Angeles, these priority dockets quote unquote still have dred people in cases for one judge, and so that judgesn't go to get around to doing all of

those fifties hundred cases anytime soon. And so even if you said, well, the goal was to get those done in nine months, it's clear you're not going to get those done in nine months. And so I just think at some point we have to grapple with a system. And neither side has done this, neither Trump nor Biden. Because Trump in the end, didn't have the goal of

one thing, the meritorious cases in the United States. Their approach was they didn't want any cases in the United States, and the Biden administration hasn't wanted to be perceived as overly insensitive to these cases, which is also a valid goal. So both goals are valid depending on how you look

at it. But I just think we need to get to an approach finally at some point where we have regional processing centers in Mexico in Central America where people can go and make those claims and actually have assistance making those claims so they don't do it on their own. They would have people from our government as that to make these claims, and then those cases get adjudicated and you either use that process and you get into the United States, or if you don't use that process, you

are automatically excluded from the United States. And I think that's the fairest thing we can do for this hemisphere, is to give people with fair asylum claims a chance to do it. But it doesn't have to be at our southern border. And so this is what continues to be the complicating practicer here. So the governor of Texas has said that they're going to start arresting people for trespassing. Is that the order that's being a challenge by the

Biden administration. Well, I'm first of all, that's the provision that Jan Brewer in twelves during the Arizona and Law. At all of those three court cases, she was trying to do the same concept basically, which was to arrest undocumented people for dress passing in Arizona. But yeah, Blue being salad. It's one of many things being valid by

the by the administration. But the interesting question is they're trying to pee up an issue that if you look at who decided the Arizona decision, that was the six three decisions, but the six justices who rules for the case, the only ones who are left are Robert Prota, Major Kagan, and and Roberts. And so you have five justices who either ruled on behalf of Arizona or are news to the court, which is having a Coney, Barrett and Dorsage.

And so the question is with those five justices end up overturning the Arizona And so it's possible that with these five justices who are not on the record or on the record on the side of state enforcement of immigration law, they may decide that the Arizona decision should be overturned and that state can start doing immigration enforcements. That would be similar to, for instance, states enforcing drug laws. The federal government enforces drug laws and state enforced drug laws,

and so you might end up actually seeing that. And I think that's not necessarily going to be decided this week, but it's definitely something to be looking for during the course of the Biden presidency. Okay, so now I want to talk about the Biden administration released its proposed measure to preserve and fortify DACO. Well, one of the criticisms that has been given in this litigation about the legality of DACCA was that DOCCA was not simply an issue

of prosecutorial disgray shion, but was actually a program. And why it was with a program. It was a program because it had requirements had to be under succeed, you had to arrive priored at twelve, you had to have not committed certain crimes. And so once you start putting criteria on these lists of prosecutorial discretion, and it's not just a case by case decision, but it's actually based on criteria that that needed to be something that was

done through formal rulemaking. And so one of the things that the court had said was that Doctor was illegal because formal rulemaking has not been issued to actually implement the program. And so now the Biden administration has finally, after all of these years, decided to implement the formal rulemaking for the program. Now that will shield it from

that attack. But then there will be the ultimate question, which is the one that we've been at this for ten years and nobody's ever ruled that definitively, which is is data illegal? I mean, tim a president actually healed a certain segment of the population from removal and then actually allow them to work in the United States. That's the question that hasn't been decided yet, and so that's the question that will ultimately be set up to the

Supreme Court as a result of this regulation. So they'll be able to get all of the procedural reasons for invalidating Doctor out of the way, and we will now be finally peeing up this issue of is DOCTA at the end of the day, something a president can or can't move. So this rule will will answer the concerns

that that Texas judge had. Yes, it will. I will answer the procedural complaints that the Texas judge had, which is that the proper procedures were not followed in implementing DOCTA, that there wasn't the formal rulemaking, and then notice and comment.

People can comment on the rule and say what they don't like, and then you issue a final rule that's going to take care of all of that, but it won't take care of the judge's decision that in the end DOCCA is illegal, that the laws have not forbid the shielding of a certain group from deportation, followed by then not just the shielding, but the implementation of work

rights and rights to travel abroad from this group. And so with that that will finally be the substantive legal issue beat up to the Supreme Court is whether DOCA is actually legal or illegal. And so that's the issue that finally no court is grappled with. Finally the Supreme Court wild grapple with it at some point. That's Leon Fresco of Hondon Knight. We have a lot to talk

about today. Let's get started with Apple TV plus One thing CEO Tim Cook did not talk about the Apple event was the injunction that will go into effect on December nine, requiring Apple to make most significant change to its app store business model since launching. In the antitrust lawsuit brought by Epic Games, the judge ruled that Apple must give developers the option of bypassing its commission on in app purchases, a cut that runs as high as thirty percent and could cost the tech giant a few

billion dollars annually. Joining me is antitrust law expert Harry First, a professor at and Why You Law School? Harry. There was a lot of talk after the decision about the hit to Apple, but it was Epic that filed for an appeal first. So who won this case? It was pretty much a loss for Epic and a lot of

gain for Apple and your right. Epic filed the appeal because they want to go further than the judges somewhat limited but very interesting injunction which will stop to some degree the requirement that you can't steer people to less expensive payment system. Did the judges ruling leave enough m for Apple to try to keep its app store revenue stream largely intact? For example, it could still collect a commission of up to despite the ruling. Yeah, there's nothing

that prevents Apple from collecting whatever it can collect. And the mechanism that Apple chose, which is to run it through its own payment system, is smart from Apple's point of view. As she pointed out, it makes sure that they track all the revenue that's generated through the app store. Everything that flows through they get, and it doesn't say they can't charge royalties to app developers in a different way,

using different formulas. You know, any party that's trying to do something like what Apple's doing has to figure out a way that will allow them to make the charges

and not too many people will escape. So it's not clear even at this point how many people will escape or whether consumers will bother to choose, because they still have to have the option of paying through, you know, an in app purchase, and I don't play video games, and my guests, as consumers in the middle of the video game, would prefer to click, then have to do two clicks, which seems to be an impossible burden for people.

So it may not siphon off that much revenue. Epic will have to give some sort of incentive to gamers to do this to, you know, make the out of app purchase of longer life for a wand or whatever in the world people purchase for so much money, apparently on the video games they own, like Fortnite. So not clear how much of a difference it will make, and if it does start to make a revenue stream difference,

certainly Apple configure out a different approach. The judges order doesn't say that Apple has to keep Fortnite on the App Store, so they could say, you know, unless you pass X number of dollars, you're out of here. And I don't see anything in the order that she entered at forbids that, and in the main part of federal charges. It seems to me it's pretty clear that they could do that. So a lot yet to be written. And

of course this is just one case. You know, there are cases elsewhere, and it's unclear what the federal government might do. This maybe a little bit of a roadmap in certain ways for the federal government. And of course there are a non US government's Koreast in the process of passing a statute dealing with app stores in the fourth highest revenue jurisdiction in the world, which is South Korea. The key part was the fight to define the market

in question. The judge disagreed with both sides about the definition of the market. Tell us what she decided and whether that will affect any future lawsuits by the Justice Department. Well, first of all, one thing to keep in mind, I think in terms of how it might affect future cases, her decision was very much fact bound. In other words, it depended a law on the evidence presented to her by the parties. Now, these are very good lawyers, so they tailored the case the way they thought it would

be best. But to some extent it didn't convince in a number of different ways. It's not clear that that's irreparable. So, for example, a big thing was that she didn't believe that consumers were really locked into the Apple platform. I am not an Apple user. You may be my view of Apple users as they're fanatically locked in. So this may be just a failure of proof that it wasn't quite presented. She didn't say they weren't locked in. She

said Epic didn't prove they were. Now, if they're locked in or they can't exit, I would prefer to think of it that way. That means that if you want to serve roughly half of the consumers of games or any app, you've got to be on that platform. I mean, you just can't give up that market. And if they won't migrate over to Android or something else, you are a subject to the power of Apple. So I think a future case may look at the facts differently or

try to present them a little differently. So this does not bind all future cases, and you're right. The leadoff question is how do we define the market. That's very unusual for a judge to pick a market that neither party proposed, and that she has to sort of make up market shares, which are sort of guesses because there

really wasn't all that much evidence about this market. And the market share has turned out to be pivotal because they're under six and for monopoly power in the US, you're not going to find cases where the shares under six. So that was a big deal. It could be different next year, you know, Apple selling more iPhones, their markets

there might be higher. They might find themselves next year as having monopoly, and so Apple dodged the worst case scenario that the judge might determine that it was a monopolist, right right, that was the first part, but that wasn't She wasn't content to stop with that. She it up. She said, okay, let's go on, because there's a different claim. It counts. It doesn't depend on their being a monopolis. Different number of counts. Just you know, that's just the

agreements and restraint of trade. And then she undercut the case completely or not. Whether the conduct was anti competitive very fair away, although she did indicate that it did have some adverse effects on developers, on consumers and on innovation. You know that the app store itself, it's sort of sat there not you know, Appleton just milking it and not really making it better despite complaints about various um

functionalities that it didn't have. Sort of reminds me of what Microsoft did with Internet Explorer for so many years. They used it as a gateway and it was a terrible program. So there's that. But in the end, she cut down the case in every which way and very thoroughly. So do you think that in the future, either other plaintiffs or the government can use her decision as a roadmap for their case. Yes, I say, you know, people do. As a teacher, I firmly believe that people learned. So yes,

I believe it's a belief. It's not necessarily true, but it's a belief. So UM, I think you know, any litigant UM still concerned with the app store, and there are both with Google and UM and with Apple. UM, we'll look at this and say, Okay, where where did the case not work? And how can we do better in the next case? What sort of facts would we need to present better, um than in a way that would convince the next judge, you know, different judge. And again,

these were factual determinations. She said Epic didn't carry the burden approving some of these things, not that Apple showed it was untrue, just that the plaintiff didn't carry its burden. So yes, I think there will be some roadmap effect.

I think that the end of the case, the California part, actually is the most interesting and maybe isn't getting as much attention as it should because I think that's a roadmap for the Federal Trade Commission to use UM, not the Sherman Act, which is a normal thing, but unfair methods of competition under the Federal Trade Commission Act. And that's what she finally went for Harry, will you just go back a bit and explain what she did in

that part of the case. So what what she did was, after she pretty much eviscerated Epics case, she said, ah hah, but you also do have a state claim under state law. And there were two state laws. One is California state anti trust law. So she threw out all those claims as well under state anti trust law called the Cartwright Act. But there's unfair competition law in California which just prohibits

unfair methods of competition. And she said, well, this is a little different because that's broader than the way we look at things under normally anti trust law. Um, we're not confined two, Um, such a high standard of proof. We can look at what she called incipient violations, not quite violations. And that gave her the room to say,

you know, there's really some anti competitive effects. You know, they're charging this huge commission rate four years which they haven't adjusted, which there are no competitive pressure to have them adjust. They're making huge profits. I mean, Plane showed that she accepted that idea. Uh, and consumers are being denied information so they can make choices, so they're not told Hey, you know you could you could buy these things outside the and and it would be cheaper. They're

not being told that, so she said, you gotta tell them. Uh. And that lack of information, which he found important for market markets needs information, could be an unfair method of competition under federal law under Section five of the Federal Trade Commission Act. If the FTC wants to use that route, it's not quite this is a broader gives them a little more power. Uh. And um, I think that's an

interesting roadmap for the Commission to look at. Harry Apple said it's still too early to determine how or when exactly it will implement the changes, and that it needs to have conversations with the judge. Is that normal that you'd have conversations with a judge who already issued a ruling about what you're going to do. Well, there's always implementation. And um, she did issue an injunction. I don't recall whether there's a time within which they have to implement it,

and that could be subject to negotiation. They could um take an appeal to the Court of Appeals to have them stay the imposition of that injunction pending you know, full review of the case. So that's a possibility. Um, And you know the judge also could say, you know, show me that you can't do it, but I don't believe it, and you just remove this restriction, So just follow this injunction. Let's see why it's so hard. So it's hard for me to stay whether so you know

there's still some play in the joints on this. But um, you know, judges, when they enter injunctions you usually want the litigants to obey, and you know, as a litigant, you you want to abet. You don't want to be held in contempt. Uh. So Um, if the judge isn't, I don't know whether she's scheduled any hearing, and we already have appeals by Epic. I assume Apple is going to appeal as well. Um, So hard to say exactly

when this will happen or if it will happen. It's the Court of Appeals may simply, um, stop in position of the injunction until until the appeals are fully heard. Do any appeals issues you know, jump out at you. Oh. The first thing I would say is I would read that case from epics point of view is, oh, what are we gonna do. So it's a pretty thorough opinion. I mean, I think, frankly, there's some legal mistakes in it,

but are they critical legal mistakes. I'm not sure. You know, it might be picking around the edges, but that's not what epics about. And I think they have to attack the fundamental way the court decided the case when a lot of it is factual, and appellate courts don't sit to review the facts. Although they do that, they don't

say they do. So. The appelate courts are there to review matters of law, and it may be that they're going to have to come up with an argument for why her choosing this market, this nonprofit market by either side, and this particular one why that is reversible and infects the whole rest of the case. So I think, shall we say it's not a slam dunk reversal to say the least. People are pointing to this decision as proof that the antitrust laws need to be updated. Do you agree? Well?

I do think the anti trust laws that there are have to be legislative fixes to some of this, some having to do with putting the burden of proof in certain cases on defendants. I'm not a d certain what the legislative fix would be for this opinion, and the courts are generally conservative in the law. But I don't read this so much as a judge whose conservative of in the law, as a judge who's not quite convinced

by the case that's put before her. So as a general matter, these cases are not faring well at the moment, and they're going to take a long time, and this is an argument for legislative change, maybe more so the f TC's case against Facebook and the coming cases against Google. You know, there's a good argument something should be done, particularly with regard to the large platforms. But one thing this case reminds us is that each of these high

tech platforms is a little different. They offer somewhat different products, they present different competition issues. They're tied together because they're such powerful companies and they're so ubiquitous in our lives that people are concerned about them. It's always a delight to speak to you, Harry, Thanks so much. That's Professor

Harry First of m y U Law School. An untraventional audit of Maricopa County, Arizona, nearly two point one in ballots by a company with no experience and election security found the hand count of ballots largely matched the county's certified election results, with Biden winning an extra three hundred sixty votes under the audit ordered by Republican States senators.

Despite the results, Trump allies pointed to the report's claims of malfeasance and errors by election officials, which county officials said are easily debunked by anyone familiar with election processes, and the stop the Steel movement is going forward with election audits in other states, even Texas, which Trump won. Joining me is Liz Howard, senior counsel for the Brennan Center for Justice. So letz tell us about the Maricopa

County audit. So, you know, one of the most important things from from the report is that it provided additional confirmation that Biden did, in fact win the election in Maricopa County, you know. But unfortunately it also shows where again these actors who have no experience in election administration, simply took routine election administration practices and attempted to cast

what they don't understand as suspicious. And we've seen the same captive characters use this playbook over and over and over again, and really, you know, they're concerns that this is just, you know, an effort to sabotage our election officials in our election systems by store loosers. Trump and his allies are using the report to say that there were problems with the election in Arizona. What are they

using in the report? So times since one of the um things that they're using is they have classified as sucicius falsely that there are over two thousand Arizona voters who share the same name and birth year. So this is actually not suspicious, and they're full reasons that we can explain this. So for instance, the birthday paradox, which explains that in a group of about forty people, there's a nine chance that who will share the same birthday,

which would just be months and day. Um. And here they're talking about people that share the same name in birth year. Obviously, especially when they're clustered around the same year. You're gonna see where names, you know, rise and fall

and popularity. So for instance, Jennifer was the most popular names for girls born in the nineteen seventies, so there were about a hundred and sixty Jennifers born every day in the USA between nineteen seventy and nineteen seventy nine, right, and so facts like these mean that it's not unexpected for there to be multiple voters in Arizona, which has over three million voters who share the same name in birth year. Do we know how much it cost Arizona to do this audit? I think that they are still

working on total cost estiments. But what we know right now is that UM the Senate costs are closing in on half a million dollars. And one of the other big costs that has been incurred in the Arizona partisan review has to do with the costs required to replace the voting equipment that was given over to the Cybern Engine who again have no experience in election administration and are not certified by the federal United States Election Assistance

commissioned to test voting equipment. The replacement costs for this UM for the equipment Americopa County has been estimated at

two point eight million dollars. And those are just the financial costs of this audit, you know, of course, that doesn't begin to address the other costs of this audit to the election officials who have had to spend you know, an inordinate amount of time not only you know, just transferring the ballots and the voting equipment um to the Senate, but also debunking all of the false information that continues to come out from the cyber ninjas and others associated

again with this partisan review in a Maricopa county. So, despite that, Texas is now going to review results from four large counties, three one by Biden. But this isn't a state that Trump won. What is the governor saying? Why are they doing this? So the governor's statement didn't include any details. What he said he's going to do or that the Secretary of State office is going to do is a forensic audit. So first, the secretary of State office is vacant right now, there is no Secretary

of State. Uh. Second, I am unaware of and of what exactly a forensic goot it means. And he has not provided any details that I'm aware of about what exactly that means to him in Texas or for our election officials. And then in Wisconsin, is there also an audit in Wisconsin schedules? Yet? So again in Wisconsin, the election results have already been audited, and the Trump campaign

already conducted a recount and multiple Wisconsin jurisdiction. The audit conducted by election officials and the recount, which was done in conjunction with campaign officials and led by election officials, both provided confirmation that Biden won the election. Currently, there is a legislator kind of established a separate entity led by a gentleman named Gableman, that is tasked with reviewing the election results. This process has already been marred with

concerning procedures. For instance, Gablements and out requests for information to multiple clerks in the state of Wisconsin, and this request was sent to the stand box and otherwise marked as a concern in the inboxes of many of the election officials because the email address from which it came was a Gmail address, and the Gmail address wasn't for Mr Gablement. You know, we have serious concerns about this, and the process in Wisconsin is also costing Wisconsin tax

payers thousands and thousands of dollars. Liz, you were talking about some of the election machinery having to be decommissioned in Arizona. Explain why they have to do that. So so far what we've seen in multiple states is right. The equipment is handed over to these actors who again do not are not federally certified and are not contractors of the local election officials, subject to the various restrictions.

The Secretary of State in Arizona, after she spoke with an in coordination with UM, the Cyber Security and Infrastructure Security Agency at the US of Apartment of Homeland Security, sent a letter to the Americopa County officials saying that there was a significant concern because the voting machines have been accessed by these people, and the voting machines were

UM decommissioned. And also you've seen in Pennsylvania where a small county provided access to their voting machines to one of the vendors that is also associated with the Arizona partisan review. The Department of State's office, in conjunction with the vendor said you may not use this equipment again. And in Pennsylvania are they moving for more audits in Pennsylvania? So to be clear, the election results in Pennsylvania have

already been audited twice. In Pennsylvania, there is a statutory um what we think of as a traditional post election tabulation audit where election officials in every jurisdiction in Pennsylvania a review two thousand or two percent of the ballots

cast in their jurisdiction. And again, so that initial statutory audit provided confirmation that Biden did win the election, and UM sixty three out of the sixty seven jurisdictions in Pennsylvania also voluntarily participated in a risk lemining audit, and that audit again provided further evidence that Biden won the election. So this election has already been audited multiple times. There is really no need at all for an additional audit

at this juncture. So when initially UM, a legislator who's been a very public stop the steal proponent, sent letters to multiple local election officials in the state asking for information very similar to what the subpoenas that the Arizona legislators used when taking all of this the ballots and the voting machines from er Copa. Any officials, the local election officials who had seen what had happened in a Maricopa county told that legislator that they were not going

to be responding to his requests. But we've subsequently seen is is President Trump publicly identifying the Republican leadership in Pennsylvania and demanding that they do something to audit the results. So recently they sent a subpoena to the Secretary of State asking for UM a variety of information about the election, which would include the last four digits of the social Security number of of some voters, which has been a significant concern, and there is now UM litigation regarding the

regarding that subpoena. There's been so much reporting about the number of legislatures that are changing election laws. Do you have numbers on how many states? So generally, right like the state legislatures are going to be the ones that are determining state law. So law, of course doesn't UM cover every situation. So UM, you know, local election officials have some discretion. The amount of discretion that they have is going to very state the state, which will depend

upon state law. So we put out the voting laws round up periodically, and I think we just had one that came out a couple of months ago and that does categorize and numbers. Are most of these laws being challenged in court. So my colleagues recently filed to in Texas regarding UM. The bill that was just passed there, which addresses some election administration practices. UM. And of course, uh, you know what we just saw in Texas is the governor just announced that the Secretary of State is going

to conduct the friends aboudit in four county. So the states that are passing these laws, is it about more than access to the ballot? Is it about giving county officials control over election results at some point? So I think there are a couple of things. So while in multiple states we've seen some of the most concerning provisions

stripped out of the bills that were subsequently signed into law. So, for instance, in Texas, one of the only provisions that was struck from the voting bill that was recently passed would have allowed the state legislature to basically overturn election results. It would have been a manner given them the power to certify um different election results than what the vote

counts indicated. And so while it didn't pass this year, I have concerns that this is not the last time that we're going to see bills like this in exists and in other states across the country. Again, you know, with what we're seeing across the country, I mean these these appear to the efforts to sabotage our election officials, UM, and to sabotage our election administration system. You know, we

we know that. UM. You know, what these UM part of the election reviews are actually doing is costing tax payers millions of dollars UM. And they are spurring on UM death threats and other threats against our election officials. And they're wasting the time of our election officials, UM, which now in their normal calendar, they would be beginning to plan and prepare for elections UM in which are

which are coming up. Because you know, one of the again, one of the most concerning things about this is the election that they are attempting to cast doubt on happened almost a year ago. UM. Joe Biden was torn in in January of this year, you know, nine months ago. What they are endeavoring to do is not about increasing voter confidence. Thanks Liz. That's Liz Howard, senior counsel for the Brennan Center for Justice. And that's it for this

edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts. Spotify and at www dot Bloomberg dot com. Slash podcast slash Law, I'm Jun Brosso. You're listening to Boomla