You're listening the Bloomberg Law. I'm Greg Store in our Washington Point one Studios. We're talking about the biggest legal issues of in America's voting laws were front and center during the year, both in the courtroom and on the campaign trail. In the name of fighting fraud, Republicans backed photo ID requirements and other rules that made it harder for many people, particularly racial minorities, to vote. Donald Trump fueled the fire, claiming the system was stacked against him.
They even want to try to rig the election at the polling booths. And believe me, there's a lot going on. Do you ever hear these people, They say, there's nothing going on. People that have died ten years ago is still voting, Illegal immigrants are voting. Democrats, including President Obama, said there was no evidence that sort of fraud was widespread, and this whole notion of voter fraud. Listen. One study shows that out of one billion votes cast, there were
exactly there. There were thirty one proven cases of voter from thirty one out of a billion. You are luckier. You You are much likelier to get struck by lightning
than they have. Somebody next to you commit voter froll with us to talk about this big year in election law is Rebecca Green, professor William and Mary Law School, who co directs the election law program there and once again in our ninety nine point one studios Kimberly Robinson of Bloomberg, B and A. Kimberly, arguably the biggest court ruling of the year came in a case involving North Carolina's voting restrictions. Give us a quick synopsis of that place. Well,
this is really an extraordinary decision. I think the important thing to keep in the back of your mind when I'm talking about this case is the fact that race and pull voting are very much correlated in the South, especially in North Carolina. So it turns out that most
minorities tend to vote democratically. A court here struck down UH North Carolina's voter ID laws and some other restrictions that it said has had a surgery really UH singled out Africans, African Americans, and it was extraordinary because there are really two ways that a court can strike down UH some of these voting restrictions. One is if the effect has a discriminate or discriminant or discriminatory purpose. Um that the other is the intent of the legislature is
to discriminate against minorities. And that final one is what the court here said that, you know, the legislature really intended to disenfranchise minority voters. Rebecca, in the Supreme Court upheld Indiana's voter I D law. And now we've got this North Carolina case. There are a couple other rulings out of Texas and Wisconsin where laws were either thrown
out or are soften. What is going on that has prompted this change from so the case you're referring to is called Crawford, and in that case, the court essentially said that, uh, that the state had a perfectly valid
interest in requiring photo identification to vote. But in that case, the plaintiffs didn't mount any significant evidence to show that the photo idea requirement how to discriminatory impact and courts since Crawford, or I should say plaintiffs, since Crawford, has spent a lot more time gathering evidence to show that the impact of these laws hit minorities harder. So that's that's sort of been the change since the two thousand eight ruling. Kimberly, what do we know about where the
Supreme Court stands. Now we we we talked earlier about the Texas voter ID cases is up at the Supreme Court. The Court could say in the next few weeks whether it's gonna going to take that case. What do we know about the the eight current justices on this issue. Well, you know, they have been asked occasionally to intervene in these cases to stay lower court decisions. They largely stayed out of the fight. It seems as if, you know, they might be trying to steer clear of this issue.
But the lower courts have been coming to some inconsistant rulings and maybe that the Supreme Court's hand is going to be is going to be pushed to expect to accept one of these cases. And we'll know more then, Rebecca, I want to talk about the issue of partisan gerrymandering. There is a big court case out of Wisconsin. Can you just tell us about that and what the significance is. Sure, so courts have struggled with this issue of partisan gerrymandering.
It doesn't seem right that a political party and power should be able to retain power by carving up districts to its own advantage. But so long as legislatures have authority to draw lines, um, you know, partisans ship is going to be part of the process. So the problem is determining when is partisanship excessive in the line drawing process. And the Supreme Court really hasn't settled on the satisfactory
way to measure when partisanship becomes excessive. And that's why this Wisconsin ruling called Whitford h seems so promising because it provides a way to measure excessive line drawing by using mass of all things. So um. The theory that the case adopts is called the efficiency gap theory, which is, without getting too technical, a way to measure the number
of wasted votes in a district. So if a candidate, for example, would need only fifty of the votes plus one to win, um, if you have a district, say where the candidate wins by then you have quite a few wasted votes. And so what this what this measure does is essentially take the number of wasted votes uh and divided by the number of total those casts and and from that you get um uh. From that you
get you come up with a percentage. And the plaintiffs in that case basically said, if the percentage is over a certain threshold, UM, this provides evidence of excessive partisanship in line drawing. It's important to note that that's not the end of the analysis. That once that threshold has been crossed, the court would then look at the process itself for red flags like, for example, it's the opposing political are you shut out of the process, or if
it wasn't transparent. Um. So it's a very Rebecca, Rebecca, let me ask you about the impact of it. What do you think So if this this theory uh gets adopted by the Supreme Court? Uh, what kind of constraints is that going to put on on legislatures that are trying to draw the lines to keep themselves in power. So I think that they're going to start spending time thinking about the that that threshold and whether or not
they are purposely in effect wasting votes. I think they'll also take great care with the process itself to make sure that if that threshold is passed by the numbers, that that that they can sort of win on the merits of having an open and fair process. Um. But it's hard to say, um, you know how much this can be gamed because although it feels nice to have a mathematical formula. In practices is often a lot more messy.
Can really you think that does this? Uh seem like it has the potential to to swathe the Supreme Court in particular. Justice Kennedy has been the one who's at the center of this issue. Well. I think this is it's highly likely that this case will be heard by the Supreme Court. And that's because these redistricting cases are somewhat special and that you know, they kind of have an automatic appeal to the Supreme Court, unlike the other cases that the Court can just turn away and they
don't have any any value beyond that um. And in a case like this, if the justices were to turn it away, it would it would mean something more than in the other cases. Uh. And I think instead of just turning it away without saying anything, I do think the Supreme Court is going to want to wag in on on such a big issue that they've been struggling
with in the past. Rebecca, let me ask you just a broader questions you look back on so much happened this year, both the cases we're talking about, uh, the allegations of of a rigged election, Um, you know, talk of the electoral college and and faithless electors who might or might not vote for for Donald Trump. What do you think is that the big message of the big takeaway from this this year in election law? Yeah? So um.
For me, as I sort of looked back at it all, I think what is clear is the fragility of public confidence in our elections. You know, elections only work if the public has confidence in the outcome. Um. And that confidence was under explicit attack in two thousand sixteen, as
your opening clip sort of demonstrated. We have a long history, of course of the losing side alleging fraud in elections, but this year felt very different that we had the integrity of the election being called into the question before election day. Uh. That said, what's extraordinary extraordinary also about two thousand sixteen is how smoothly the election actually went.
Before the election, voting rates advocates were bracing for widespread problems at the polls, but as it happened, um, with few few exceptions, Uh, the election proceeded without major incident. So I think the challenge going forward is figuring out how to shore up public confidence in our elections. Some think the way to do this is to tighten election rules. Um. Others see this tightening as a pretext a way to
restrict certain people from accessing the ballot. So figuring out how to navigate between those two perspectives seems to be the difficult task ahead. We are going to have to leave it there. I want to thank our guests Rebecca Green of William and Mary Law School and Kimberly Robinson of Bloomberg b NA. Coming up, we're going to talk about the year in financial regulation and securities law. That will be a big topic for our listeners and it has to do with some major banks. You're listening to
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