This is Bloomberg Law with June Brussel from Bloomberg Radio. The Supreme Court gave Democrats a short term win on congressional voting maps this week, but new long term concerns. The Justice is turned down Republican challenges to congressional maps drawn by state courts in Pennsylvania and North Carolina, which
could help Democrats when a handful of races in November. However, four conservative justices indicating they want to consider a far reaching legal theory that would shift more federal election power to state legislatures that are now disproportionately controlled by Republicans. Joining me as elections law expert Rick Hassan, a professor at u C Irvine Law School, the maps in North Carolina and Pennsylvania had been drawn by Republican legislatures and
replaced by the courts. Why did the courts replays them, Well, the states each have their own constitution, and just like the U. S Constitution, has phrases in it that are pretty vague, like equal protection of the laws that end up being developed into large scale doctrines that courts used to do different things. That's what's happened in these two states. Both the Pennsylvania Supreme Court and the North Kindline Supreme Court read provisions related to elections in their state constitutions
to banned partisan jurymandrick. That's draw district lines to favor one side and hurt the other side. So the court left the maps in place. Was that an expected decision under current law? So the kinds of arguments that were being made against the two different states laws, So the court left the maps in place. Was that an expected decision under current law? So the kinds of arguments that were being made against the two different states laws or
somewhat different. The claim in Pennsylvania was essentially punted. It was basically that a federal statute required that if the legislature didn't draw lines in a certain way, then you'd have to elect all the members of Congress from the entire state voting. And so that case just got punted and is going to be put before a three judge court, and we'll be back before the Supreme Court at some point.
The more immediate interesting case is the North Carolina case, because there we've seen an argument raised that conservatives have been raising for twenty years, more than twenty years since Bush versus Gore, which is that state courts applying state constitutions have very limited powers to apply those state constitutions
against state legislatures in federal elections. And that's because of a part of the Constitution that says the state legislatures get to set the rules for running congressional elections subject to congress is override. It's very complicated, called the independent state legislature doctrine, and so far no majority of the Court has accepted it, but there are a number of aicists who have expressed some interest in it. So we're waiting to see what happens ultimately with the resolution of
this issue. So in the Carolina case, the courts three most conservative members, Justices Samuel Alito, Clarence Thomas, and Neil gorse It, said they would have blocked the state court from adopting a new map, and they use this independent state legislature doctrine. That's right, And Justice Kavanaugh said, yeah, I think we should take this independent state legislature doctrine seriously.
I just think we're too close to the election, which is a point that he's been making in a number of cases recently, saying that federal courts, including the Supreme Court, should not be changing election rules just before an election, But he suggests that if the case came back for a regular hearing, not on an emergency basis, that he'd
be willing to hear the case. It only takes four of the nine justices to a pretty hear a case, so it seems pretty likely that this case will ultimately be back for the Supreme Court, maybe to be heard next year, and with the decision a year from June. Just to be clear, it's an unprecedented theory that basically a state judiciary can impose a map for congressional elections even though it finds a map violates the state constitution.
The idea is that the state legislature has some kind of independent power, like it's not the state itself, it's the legislature as a body, and that the state legislature can trump even the state constitution as applied by the state legislature. The argument has been around for a while.
In Bush versus Gore, which was the case that ended the two thousand election, the majority opinion for the court said that the recount that had been ordered by the Florida Supreme Court violated equal protection or to process guarantees, but there was a separate three justice concurren written by then Chief Justice William Rehnquist and joined by Justice Thomas and Scalia that advanced this theory and said that there was a separate problem with the order to do these recounts,
which was that it was ordered in violation of what the state legislative statute said, and you can't do it in reliance on the state constitution. So that's really kind
of the modern origin of this argument. The Court has rejected very similar arguments in other cases, including as most recently a case in involving whether Arizona voters could adopt a registricting commission to draw district lines for Congress rather than letting the legislature do it, and on a five to four vote, the Supreme courts that we don't read legislature as narrowly at the Arizona legislature was arguing that was a five to four decision two of the justices
soon to be three of the justices, and that majority will have left the Court by the time that this issue returns to the Supreme Court, presumably in the North Carolina case, and Chief Justice Roberts, who was the chief dissenter in that two thousands fifteen Arizona case, could well find himself having to choose between following a precedent he doesn't like or agreeing with at least three or four of his colleagues, two of them were not in the court of the time, and who seemed to agree with
the position he took back in this independent state legislature doctrine, if the Court were to adopt it, that would be contrary to precedent. Well, the issues are not exactly the same, because in that fifteen case, for example, the question is whether you could use the initiative process to displace the legislature. In this case, the question is whether state court supplying state constitutions can supplement what the legislature has done. There
related questions, but they're not quite exactly the same. But there are precedents going back a hundred years where the court has rejected this kind of argument in different contexts, but it hasn't gotten a full airing in the modern period other than in that Arizona case. And we don't know if precedents is going to stick in that Arizona case. So let me ask you this, why are conservatives pushing it and why are the three at least the three
dissenters seemingly in favor of it, and perhaps Kavana as well. Well. Now you're getting really interesting questions. So both Pennsylvania and North Carolina have the following political configuration. They have legislatures that are dominated by Republicans in part because of earlier Publican jerrymagers. They've got democratic governors, and they've got democratic majority Supreme Court, that is Supreme Court with justices who
were either nominated or favored by the Democratic Party. And so in each of these dates, you have a Democratic Supreme Court saying that the Republican jerrymanager is no good. And now you have these conservative justices on the Supreme Court disagreeing with the Democratic States Supreme Court and agreeing with the Republican legislature and potentially allowing them to continue for another decade with a partisan cherry managing of district.
And it's kind of builds on itself, right, because you end up adopting rules through a body that had been elected under rules that have been manipulated by the earlier body, and so it creates a kind of feedback. And so there's both kind of an ideological understanding of this like, let's read the word legislature very literally in the text
of the Constitution. But there's also a political aspect of this, which is, let's give the Republican legislature a chance to do what it wants to do and not let the
democratic state Supreme Court ring them in. The Supreme Court has all cut off certain ways to challenge election laws election districts, and in twenty nine when they close federal courts to claims of partisan gerrymandering, the Chief Justice wrote that those claims could get through state courts, right, right, So there's an inconsistency there in terms of In Rouco, the case you're referring to, the Court said, but you
could always go to state court. Now, maybe you could reconcile that by saying, but that's only true as to preventing gerrymandering of state legislative districts and not congressional districts. But the congressional power is different when it comes to federal elections, and state power is different when it comes to federal election So it's sufficiently uncertain that I think the Supreme Court is going to have to resolve it, and likely in the North Carolina case and in a way.
That would be a very good thing for it to be resolved one way or the other, because this issue did appear as well in the presidential election, and it would have been really a mess for the Supreme Court to adopt a new, very controversial doctrine that could have helped determine the outcome of the presidential election itself. So, Rick, does it mean that if there are claims of partisan gerrymandering, if they adopted this, there's no appeal to federal court
and there's no appeal to state court either. As to a congressional district, there would be no appeal. Is that what the Framers would have wanted? Well, I don't know that that's the question, but I think you would argue that's not what the Framers want. Didn't The better historical evidence is that this independent state legislature theory is is something that is not in line with original understanding of
the Constitution. And I'm sure that there's going to be a lot of arguments aimed at Justice Amy Coney Barrett, who is an originalist who has not weighed in on this question, and who might care about that historical record for textualists originalists on the Court which is the better
interpretation according to your thinking. Well, I think that UM, the richer understanding of the constitution would reject this very strong independent state legislature doctrine and understand the state legislature is act within the context of their own UM state laws, including state Supreme courts supplying state constitutions, and the claim in North Carolina to me is exceptionally weak because the provision of the state constitution that guarantees these voting rights
was actually one that the state legislature had approved in nine when it had amended its constitutions. So there's all kinds of reasons why, UM, the North Carolina General Assembly, that's the legislative body there should lose. In UM, this case shouldn't come back to the Supreme Court. But I'm not at all confident that they will lose. I just think that they should finally, so the Democrats win here in the short term, but now this is something that
they should be concerned about in the long term. Oh, I think absolutely, yes. This is something that really could have impact beyond redistricting as well. It could apply anytime a state legislature's rule is challenged as violating a state constitutional provision. And it's going to be applied in the federal election. Thanks so much for lending us your expertise. Rick. That's Rick Casson, a professor at you see Irvine Law School.
When I put my hand on the Bible and took the oath of office twenty two months ago, I knew this job would be hard, but I'll be honest, I never could have imagined anything like this. I want to start by saying thank you to our law enforcement. Thank you to the fearless FBI agents, and thank you to the brave Michigan State Police troopers who participated in this operation. That was Michigan Governor Gretchen Whitmer in October of last year,
talking about the plot to kidnap her. Today, trial began for four men accused of conspiring to kidnap Whittmer and conspiring to use a weapon of mass destruction. The focus of the trial quickly turned to the question of whether the FBI tricked and cajole the defendants into agreeing to
the kidnap plot. Joining me is former u US Attorney for Eastern Michigan Matthew Schneider, a partner at Honigman So described the crime alleged here and the atmosphere in Michigan at the time, So the atmosphere in Michigan was of course COVID restrictions, and that was happening all across the country, and there were a number of different types of events that happened in Michigan that were very extreme, which were
locked downs there. It started with people not being able to go to the store or go to work, and then eventually it became that you could stand out in your house, but you couldn't talk to your neighbors, and then even that shut off, and so there were a lot of restrictions and people felt very strongly about that. And as the course of these restrictions built, a lot of public sentiment built one way or the other, either
in support of Governor Whitmer or against Governor Whitmer. And as we found out that at this time, these defendants in this case were on the very very supposed to Governor Whittmer's restrictions. And the allegations in this case are that they decided that they would take matters into their own hands, and instead of most Americans complaining about it, writing letters to the newspaper or talking to folks and
being upset. The allegation here is that they put together a conspiracy plot and they thought the one way that we could do this is that we would kidnap the governor and we would take her hostage, and we would use weapons to do that, and they felt that that's the way that they would get their point across. Of course, they're innocent until proven guilty, and the trials just started, but that is the allegation in this case. So tell
us if anything unusual happened during jury selection. You know, it's interesting because the jury pool is is from West Michigan, which is not necessarily a strong point for Governor Whittmer as it was, but I think at the end of the day, there should be a fair jury here. But we don't really know a lot about some of these jurors because they ended the jury selection without asking a lot of questions about some of them, just kind of their background and whether they could could do it, but
not much detail. So some of this is a little unknown. One aspect of this jury selection that I found very concerning myself was people were asked, as with any other jury selection, can you be fair, And a number of people said, I can't be fair? In this case, because I really dislike Governor Whitmer, and I can't be fair. Well, you know that what that said to me is a lot of people dislike Governor Whittmer. That's fine, she's a
political figure, and that's okay. But when somebody says I dislike her so much that maybe I'm sympathetic to somebody who wants to kidnap her, I found that to be quite disturbing, because in this country, we're not supposed to settle our political differences through violence. We're supposed to settle
them at the ballot box. And at least some people on this or who were excused, tip their hands to the fact that they thought that violence in response to political disagreements might be okay, and that that's something that should trouble all of us. So let's talk about the opening statements. Let's start with the prosecution. It featured what
sounds like some wild tales. Yes, the prosecution had a strong opening in my view, and they explained the time and the timeline and the chronology about what happened and how these defendants got together, and they started talking about different ways that they could rebel against the government and Michigan and then they started to train together and they
started to use assault rifles. Some of them had been doing this for a while, but they started to take target practice, and the FBI infiltrated this group, and the discussion went more instead of here's the types of things we could do, here are the actions that we could take. And then the government alleges that they actually started to take these steps. So it's one thing to say, I think what we need to do is go to the
governor's house and surveil it. In this case, the evidence is going to show that the defendants, some of them, actually did that. They went to the governor's house. And you know, it's another thing to say, well, we should buy some explosives so that we could detonate it near the governor's house. Talk is one thing, but the evidence in this case, the government says, is they're going to show that they tried to buy these explosives, and some explosives they did buy, and the point was they really
wanted to put their money where their mouth was. And so that's the case that the government has laid out that they actually took some actions. They took these overt acts, these steps, and further into the conspiracy and that's why the government believes that they should be found guilty. So the defense raised the defense of entrapment. They said that the FBI tricked the defendants into agreeing to the plot to kidnap Witner, and the FBI drove the whole thing.
So tell us about that defense. So what we know so far is that the defense, originally in the opening statements didn't really touch this entrapment. They just kind of nibbled around the edges. At some point in the openings it became clear that that's really what they were talking about, and an entrapment defense is saying, essentially, I'm not the one who came up with this idea, I'm not the one who really wanted to do this, and but for
the government, I wouldn't have done this. I wouldn't have tried to put this plan into place except for the government goading me on. And some of these defendants have said that they really had no experience in tactical training and using weapons. But Dan, this undercover FBI informant, is the one who trained them, and he's the one who
encouraged them. So that's the entrapment defense, and the government of course and is going to use the jury instruction for entrapment, and there are signs in there the government can point to to say that you weren't entrapped, And that's really based on the fact that the defendants were what they call predisposed to commit the crime. That means they already had this thought in their mind before the
government introduced the undercover agents. And under the law, if you have that predisposition, then entrapment is not a valid defense. Is it a high risk strategy to defend based on entrapment because you're conceding that some crimes may have been committed. It is because it's an infirmative defense where you you have to admit to certain things, but say, similar to
self defense, say I did this. However, now it's important to note that as this trial has played out, it's not as clear cut as the government has thought, in my opinion, because entrapment is not the only defense. There's a separate defense that is being laid out by at least one of the defendants to say that this is all really big talk. We did not intend this, but we talked really big and we came up with some
wild ideas. And the defense is going to explain the fact that we talked about, what are some ways we could go and take out Governor Whitmer. Well, one way is we could all sneak over to her house and we could hide in the woods and we could bark like animals, and then she would come out, because she cares about animals. Another thing that they talked about was, well, we could cut all the trees down between Indiana and Michigan, because that would create a stir and would prevent people
from getting into the state. Or we could tie a kite to the governor and flyer over Lake Michigan. Now that's all nonsense, right, that's not going to work. And the defense in this case is, look, they said all these things when they were drunken, when they were stoned. Another thing that they said was we're going to kidnap her, and so all of this is in one big pot.
We didn't mean it, and it's all just a bunch of big talk, and therefore their strategy is we're big talkers, we didn't mean it, we couldn't actually accomplish this, and you should find us not guilty. The fact that there are four defendants here are their defenses. United You said that one of the defense attorneys brought up this crazy talk. So how does it play that there are four of them? So there's four defendants and each of them gets an
opportunity to speak as questions, give their opening statements. That's how the openings played out. Now, let's see what happens in the closings. Right, are they all going to last on to that defense? Will they all be in the entrapment defense that we know all four of them have already said, well, we'll plead entrapment. But will they all argue these other kind of stoned, crazy delusions and that's
why we did it? Will they argue that that really remains to be seen And we won't know for weeks because this trial will probably take at least four to six weeks to get through. But will the jury distinguish one defendant from the other for something like if they're sitting there and it's this wild talk plan to you know, put a kite on Whittner, whatever, will the jury really distinguish one from the other or will the defense is
sort of bleed into one another. So normally juries do take the time and effort to go one by one through each defendant and find this defendant with these elements either did or did not commit this crime, and there will be plenty of time for jury deliberations to do that. Sometimes people fear that if you're if you're in a group of people who are committing crimes, and then there's
guilt by association. I have found in my experience that jurors are are quite smart, they're quite intelligent, and they're able to parse out who did what and who did not do what. So I think we'll we'll be able to see a jury that is able to do that. Let's talk about some of the witnesses. Two insiders who turned state's evidence seem to be important for the government.
That's true. So there are two defendants who were charged in this case, but they've pleaded guilty and now they're cooperating for the government, and they've committed crimes and they are going to admit that and explain what happened. And the government's theory in this is that the best way to know what happens in a secret conspiracy is to actually get one of the members of the conspiracy to come out and explain what happened. And these people were insiders who can say I was in that room. I
was part of those conversations. I know what happened, and here's and here's what actually took place. The defense on these types of cases is always the same. You're a liar, and the reason why you're testifying is for one reason, and that's because you've been convicted of a crime. And if you testify and you give the government what they want, then they will give you a break, and they will cut your sentence and they will reduce the amount of time that you have to spend in prison, if you
even go to prison. And so the defense will paint them as people who are opportunistic, only there for their own agenda, who already have a criminal history, and who were people who want to break and they're going to portray them as not truthful, and the government's going to have to come back and rehabilitate them and say that, look, you swar an oath to tell the truth, and that's what you're doing. Is that correct? And that's what they're going to rely on. There was an undercover in this.
It was a former Wolverine watchman who got upset and he went to the FBI and agreed to go undercover. It does it seem as if the defense is going to try to put a lot of the blame for this on him, that he was leading them. Oh? Absolutely, and that's really universal that that came out from all of the defendants. They placed a lot of blame on the FBI informant named Dan is the person who's really
responsible for this. And what they say is Dan was a paid informant from the FBI and was getting a paycheck from the FBI and was meeting with these folks and nothing was really producing. The defendants weren't committing any crimes. Dan wasn't getting in a result. And Dan realized, I need to up my game here because I'm going to get my paychecks cut off from the government. They'll stop paying me unless I produce. And so the defense argument is that's what Dan did. Dan kicked it into high year.
Dan decided to have more meetings with the defendants. Dan brought the defendants into training, all this paramilitary training. Dan has a former military background, so he's the one who actually taught them. And Dan was okay with these people using, you know, using drugs and smoking marijuana and doing those things. And Dan is the one who really planted these seeds and got them going. That is exactly what their defense
is in this case. So let's talk a little bit about domestic terrorism, which you know we see here, we see it in the January six insurrection. Is that a problem that the government is tackling? It is? In general? I think this case is much more about COVID restrictions than it is about any other type of extremism. I mean, that's what all of the sides have said in this case. They've said, Look, during the time of the pandemic, everybody was mad about the COVID restrictions. The government and the
defense they all can agree about that. And the issue is really not about whether it happened. It's to what extent did the defendants take that restriction and and did they decide to instead of internalize it, to externalize it. Now, domestic extremism terrorism, as you say, that takes all different
types of forms. But I think what is fair to say in this case, if there hadn't been a pandemic and there hadn't been COVID restrictions, this case might not have played out this way, because it really is based on that. As far as domestic extremism goes those cases are going to be going on in the future, whether or not there's a pandemic. When you hear militia too many of us, that sounds dangerous and a lot of these extremists are associated with militia. Is that an incorrect assumption.
I think it is because in this jury pool, militias are often associated with firearms, and the questions were asked about firearms and association with militias and people with firearms. And I don't know how it is in other parts of the country, but it was fairly normal when this jury was asked, does anybody own a firearm? And virtually everybody in the jury pool said yes. And then they were asked, who owns more than five? Many people did, who owns more than ten? Some people did, who owns
more than twenty? And people on the jury who were in the jury pool, maybe not actually selected, some of them owned more than twenty firearms. Michigan is a hunting state. It's a state that uses firearms for sport and for target shooting, and it's a state that we're militia type activities who also used firearms. It is part of the state, it's part of the culture. In many ways to have firearms here and so as opposed to some other locations.
Really isn't too surprising that some of the jurors in this case actually would have fire arms of their own. Thanks so much for being on the show, Matthew. That's former U S Attorney for Eastern Michigan Matthew Schneider, a partner at Honigmanton. 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 wherever you get
your favorite podcasts. And don't forget to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time right here on Bloomberg Radio. I'm joom Brosso and you're listening to Bloomberg