Weekend Law: GOP Map Loss, Abortion Pill Fight & Contaminated Drinking Water

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1:29This is Bloomberg Law with June Grosso from Bloomberg Radio. Twice this past week, the Supreme Court blocked Missouri from using a congressional map designed by Republican legislators to give the party control of seven of the state's eight congressional districts. It's a defining moment in the legal battle over the state's maps that has spanned almost a year and spawned confusion among voters. The decision means the state will use its congressional map from 2022, which is likely to produce six Republican districts and two Democratic districts. A loss for Republicans trying to maintain control of the House in the midterm elections.

2:14And no Supreme Court justice dissented from Thursday's order. Joining me is Jonathan Diaz, Director of Voting Advocacy and Partnerships at the Campaign Legal Center. Jonathan, this long-running dispute over Missouri's map reached the Supreme Court twice. Tell us about the sort of tortuous litigation. I mean, I think this is a perfect example of why mid-decade redistricting, especially during an election year, is such a problem and creates such a huge headache for voters and for election administrators, because we are now, you know, less than 60 days out from election day. And until the last few days, it was not clear what district map Missouri was going to use for their congressional elections.

2:59So there's been a lot of court maneuvering, including multiple attempts to go up to the Supreme Court. But the bottom line is that, you know, Missouri's state Supreme Court ruled that the gerrymander that was imposed by the legislature earlier this year that shifted Missouri from a map with six Republican-leaning districts and two Democratic-leaning districts to a new map that was seven Republican-leaning districts and one Democratic-leaning district, that that map was unlawful, that it violates the Missouri Constitution. And therefore, the Missouri Supreme Court ordered the state election officials to revert to the previous map, the 6-2 map.

3:35Secretary of State didn't like that. It is very last minute. He tried to go to federal court to reverse that decision. And the Supreme Court said, basically, you know, enough is enough. The state Supreme Court issued an order based on state law that you have to use the previous map. And the U.S. Supreme Court said, we're not going to disturb that order. And we're not going to allow lower federal courts to intervene at this point. So Missouri will use their previous congressional map this November. It'll go back to that kind of 6-2 split. That's where we are. Missouri used the new map for the primaries, but it will be using the old map for the midterms.

4:10Is that going to cause problems or confusion? The primary winners will remain on the ballot. It's just the district lines are different. So it will be all the same candidates who are elected in the primaries just, you know, using their old maps, using the old district lines now. And what they did with the new gerrymander was functionally eliminate a majority black district that's currently held by Congressman Emanuel Cleaver. And so he was still running for reelection, just on a much less favorable map. And this is it. No more litigation. Well, there's nowhere else for them to go. So this is it.

4:42They've gone up to the Supreme Court twice. The first time, you know, Justice Kavanaugh, who is the circuit justice for the circuit that covers Missouri, on his own, denied the secretary's request to stay the Missouri Supreme Court's decision. And then this time, the full Supreme Court, with no noted dissents, did stay the federal court decision that tried to bring us back to the new map again. So it's been a real seesaw back and forth between, you know, the old map, the new map, the old map, the new map. But at least for Missouri, this has been settled for these midterm elections. Let's turn now to the confusion, some might say chaos, over mail ballots, where there is litigation in several different courts.

5:21And we're waiting for the Supreme Court to decide whether the post office can impose new rules for the midterms. What's the state of play right now? Well, it has been a long and rather complicated saga around these new USPS regulations that the Postal Service formally published only a few weeks ago, but that have been kind of percolating since March. So to take us all the way back, in March 2026, President Trump issued an executive order that focused primarily on mail voting. That order directed the U.S. Postal Service to issue regulations that would mandate certain envelope requirements, certain barcode requirements, and new procedures that state and local election officials would have to follow in order for USPS to deliver ballots to voters in those states.

6:11There is no statutory authorization for any of this. The Postal Service is not, they're not election administrators. They deliver ballot mail just like they deliver all the other mail. And so this executive order and the regulations that USPS created to enforce it, you know, represent a huge shift in the way that mail voting would work in this country and would give USPS the authority to decline to deliver ballots to voters if the states or the counties who are sending those ballots don't meet every single new technical specification in these states. USPS regulations. There's been a flurry of litigation challenging both the executive order and the USPS regulations.

6:51Earlier this year, a district court in Massachusetts issued an injunction that found that the executive order was unconstitutional and enjoined USPS from issuing regulations to give effect to that order. That injunction was appealed. And a couple of months ago, the Supreme Court said that the injunction was issued too soon. They said that the issues were not yet ripe because the Postal Service hadn't actually issued any regulations. And so there was nothing really to challenge. And the district court acted too soon when it granted relief to the plaintiffs. But in that order, the Supreme Court said, if and when there is a final regulation that's in place, that might change things.

7:27So about two days after that Supreme Court order came down, USPS published their final regulation. And we all rushed back to court and started the process all over again. Judge Talwani in Massachusetts, again, issued an injunction blocking the USPS regulations from taking effect. She found that the regulations themselves are unlawful. They exceed the post office's statutory authority. They derive from an unconstitutional executive order. And critically, there is just no time to make these kind of huge changes before the midterm elections without disenfranchising millions of voters. And mail ballots have already been sent out in some states.

8:05So it seems like it would be almost impossible to comply with new rules. You know, state and local election officials from across the country, from red and blue and purple jurisdictions, have all told the courts, we cannot do this. Ballot envelopes have already been purchased. Barcodes have been placed on them. There is no time to redesign ballot mail in all of the 10 ,000 election jurisdictions across the country. And there's no money to do it. The vendors can't work fast enough. The counties have no more budget left. They've already spent the money that was appropriated to them to buy, you know, ballot mail and ballot paper and all of that.

8:41You know, in a state like Arizona, where 80 percent of voters voted by mail in 2024, you know, if they don't get their ballots, that's a huge logistical and operational problem for election officials across the state and across the country who are in very similar situations. Yet the Trump administration is trying to get a stay of Judge Talwani's injunction with a little twist on the normal practice. Kind of unusually, they simultaneously asked both the First Circuit Court of Appeals and the Supreme Court to stay the district court order. Normally, you would go to the circuit court first, and then if they say no, then go to SCOTUS.

9:19But DOJ decided not to wait. The First Circuit denied the government's request for a stay, leaving that injunction in place. And so now we await a decision from the U.S. Supreme Court. They stayed the previous injunction on that jurisdictional ground, on ripeness. But now they're faced with a very different question. You know, they have to address the merits of the government's position. The government says that these regulations are lawful, that they do have the authority to do this. The lower courts have disagreed so far. But I think the Supreme Court really also has to consider the equities of the situation right now and how disruptive an attempt to implement these new regulations would be in a situation where, you know, North Carolina, Wisconsin, Alabama have all already started sending ballots to voters.

10:02Every state has to send mail ballots at least to military and overseas voters by September 19th. And throughout all of this, USPS and the federal government have been unable to clearly say whether even they are ready to implement these rules, whether the portal that they're building is complete, whether they have the staff and the time and the functionality to do all the things that the regulations require them to do. So at this stage of the election cycle, to even be contemplating a change on this scale is crazy, which is, I think, why we have seen an unusually broad coalition of election officials, Democrats and Republicans, secretaries of state, county clerks, all going to the court and saying, you know, practically speaking, the implementation of a rule like this in September of an election year would be just unbelievably disruptive to the process of elections and would almost certainly result in voters not getting their ballots.

11:02So you'd expect that the Supreme Court would listen to the practicalities here, and they don't have to make a decision on the merits, right? Right. This is an emergency stay request. So we're in a kind of emergency posture on the shadow docket. They don't have to do a full opinion and everything. All they have to do is either grant or deny this government's state request. And how much reasoning they want to give us is unfortunately kind of up to them. Listeners may be familiar with the Purcell principle, this judicial doctrine that federal courts should be mindful of the administrative chaos that their decisions can have late in an election cycle.

11:43And if ever there were a case where the Purcell doctrine should apply, it's this one, where the federal government is trying to impose new regulations and new procedures on election processes nationwide at the 11th hour. And so I'm fairly confident that the court will see both the legal and practical realities here and not toss a bomb into election administration less than two months out. We won't know until they tell us. And I will note that if the Supreme Court had made a decision the first time this came to them, instead of taking a procedural off-ramp, there wouldn't have been all this litigation.

12:24And they had to know the case was coming back to them. This is a crisis, I think, in part of their own making, because they knew it was going to come back. But I imagine this time around, they will move more quickly, given where we are in the calendar. The legal issues are, I think, pretty straightforward here. The Constitution very clearly assigns the responsibility to legislate the time, place and manner of federal elections to the states, subject only to preemption by Congress. And it does not give the executive branch any authority, whether it's coming from the White House or the U.S. Postal Service, to regulate elections absent clear authorization from Congress, which they don't have here.

13:06So we should get an answer from the Supreme Court next week. Thanks so much, Jonathan. That's Jonathan Diaz of the Campaign Legal Center. Coming up next, the Fifth Circuit says there's no constitutional right to clean drinking water. I'm June Grosso, and this is Bloomberg. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version.

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15:42One rate, no surprises. With global scale, enterprise performance, and predictable pricing, Wasabi helps organizations focus on innovation instead of cloud bills. Companies that are paying more in fees than in actual storage costs can fall behind. Don't let it happen. When your AI needs your data and you have a budget to meet, get Wasabi. Learn more and try now for free at wasabi.com. Wasabi, the AI storage cloud, proud partner of the iHeart Podcast Network. Residents of Jackson, Mississippi, say it was more than just inept government when the city allowed their drinking water to become contaminated by lead and then falsely claimed the water was safe to drink.

16:22They caused the lead to be in the water over the course of months and years. They knew what they were doing and they continue to choose to do it. They piped it into people's homes, then they lied to them about it. And people drank the water and were harmed. I think that's qualitatively different from the situation where there's just an inept government. The residents sued the city for violating their constitutional rights. But at the Fifth Circuit, the city argued that the residents hadn't established a violation of their due process rights. The Supreme Court has been clear that intermediate courts should be very hesitant to expand the limits of substantive process.

17:06Here, what plaintiffs are asking this court to do is second-guess decisions of state officials and whether those decisions were rational or not. And the Fifth Circuit sided with the city in a 10 to 5 decision, ruling that the Constitution doesn't provide a right to clean drinking water or to accurate information from public officials. Judge Kurt Englehart, a Trump appointee, wrote that while the deprivation of clean water was grievous, it did not infringe upon any deeply rooted constitutional right. Joining me is environmental lawyer Jennifer Novak. Jennifer, tell us about the underlying dispute here.

17:51In the Sterling case, the city of Jackson, Mississippi, was providing drinking water to its citizens. And by 2013, knew they had a real problem with the quality of water. And the combination of aging infrastructure using lead pipes, along with a high acidity level from where they were taking the water, meant that instead of just passing through the pipes, the water was picking up lead along the way. And by the time 2013 rolled around, the city was well aware that the levels of lead were at least two times too high for public health and safety. And yet it didn't tell the public that there was a problem.

18:32It continued to serve them the same water. And when questioned about the water quality, the city lied effectively, saying that the water was safe. So the citizens continued to drink it. And what ended up happening is once this was discovered, a number of citizens brought a lawsuit against city officials, citing our federal civil rights laws. Their 14th Amendment right to life and liberty and property had been violated because of these two different actions by the city officials. Tell us about the residents' argument that the contaminated water was a violation of their constitutional rights under the 14th Amendment.

19:14I mean, if we look at the literal text of the Constitution itself, obviously there is no right to clean water. But both the Fifth Amendment at the federal level and the 14th Amendment at the state level have been read to mean that we do have certain levels of bodily autonomy and integrity and that a state cannot, for example, allow an officer to assault you. They can't force you to have a surgery if you don't want it. And so it's along the lines of this bodily integrity that the plaintiffs were saying they had been violated because they were led to believe they could ingest this water safely, and yet it was not safe to do so.

19:56And presumably that meant they weren't really consenting to drink this contaminated water. And that was the equivalent of forcing them to take a medicine or ingest a poison or something along those lines. The court here relied on history and tradition to make its decision and said there was no historical basis to find such due process rights here. Quote, The Constitution does not provide redress for every governmental wrongdoing. Tell us more about how the majority came to its decision. Here in the Fifth Circuit, what they really held on to is perhaps not unsurprising, given the Dobbs decision by the Supreme Court, which is a look at history.

20:38And if we don't see that in history, courts were ruling a certain way, then we're not going to be the first court to do so. and saying, look, you have no right to government services. You don't even have a right to having the government give you services well. So you've been harmed. We recognize that. We feel bad for you. But that doesn't make it a constitutional right. And you need to pursue other remedies. That's really where the Fifth Circuit came out. And it does create a bit of an interesting situation. If you're a prisoner, you can't be forced to ingest something that you don't want to. And yet, if you're one of many people living in a city who presumably think you are drinking clean water and wouldn't drink it if you knew it was going to be harmful, perhaps you don't have that same right, even though it's the same constitution that we're talking about.

21:28This was a decision by the full Fifth Circuit, so en banc. The majority of 10 was composed of all Republican appointees. The dissent was composed of one George W. Bush appointee and the four liberals on the court. Does this issue break down along conservative liberal lines? It can be. What the dissenters noted was that this is a little bit different from saying that you have a right to have the state or a municipality give you clean water. This is a situation where the city has affirmatively taken on the obligation to serve its citizens drinking water. And we're not just talking about a situation where maybe they were incompetent, but once they knew they still failed to act in the citizens best interest.

22:18So the minority judges felt that this argument of there being a state created danger was one worth looking at and not necessarily that the plaintiffs would win, but that they had the right to pursue this a little further to see if maybe there was some traction there. Maybe they would uncover something that would allow them to keep going. During the oral arguments, there were a lot of questions about how other circuits have ruled in this kind of case. Is there now a split in the circuits, and might this be something the Supreme Court would take up? So there is a conflict. Most courts in the United States have not addressed this exact same situation.

23:01But we do have the Sixth Circuit, which heard all the Flint, Michigan cases on the Sixth Circuit came out differently saying, no, we think that the government did have a requirement to tell you the truth and you have the right to at least discover the true facts before we shut you down. And there is enough case law from other circuits. For example, in the Second Circuit, after 9-11, the EPA was found to have mischaracterized, misrepresented air quality, and the courts did not allow those lawsuits to go forward. So it's more aligned with the Fifth Circuit. So there is a bit of a contradiction as far as what the courts are finding, how they're applying those rights.

23:42And there's a tendency within the courts right now to say, we don't want to extend the Constitution to create new rights. We're going to interpret it more as a check on government power and just talk about what the government can't do to you, right? It could be something that the United States Supreme Court would want to take up because there is now a split. The question is whether if you are the Jackson City plaintiffs, that's where you want to go as opposed to trying a different tact. Some of the other options the majority suggested for the residents were to pursue tort claims, to elect officials who'll better manage the water system, and to petition representatives for other solutions.

24:27I saw that and, you know, one of them is always, well, you could elect somebody better. They do note that if you want damages, then tort claims are your only avenue and you can give it a shot. That doesn't mean it's going to be easy. It doesn't mean you're going to get everything that you believe you are entitled to. They coupled it also with you can work within the system. You know, perhaps your local officials will create some sort of fund or system of redress. And while the court doesn't get that specific, I think that's what they were alluding to, you know, that there could be some reparations at that level, in addition to electing better officials who will pay better attention to you, won't lie to you, etc.

25:09I'll note that if the issue is fixing the problem, you do have federal laws like the the Clean Water Act, the Safe Drinking Water Act, but those are to fix the problem and maybe penalize the actors that doesn't give you money for the damages that you may have suffered. The majority also found that you don't have the right to have officials tell you the truth. Am I putting that too simply or is that what they said? That's what they said. The Fifth Circuit said, of course, we want our public officials to be truthful and honest with us, but we just don't think that rises to the level of a constitutional right.

25:48And I agree with them. Again, it's a slippery slope if every not entirely truthful press release that a government issues suddenly becomes, you know, my constitutional right has been violated in some way. I do think at some point in time, you can probably go down that slope and find situations where that might rise to that type of infringement. But for the most part, I think it also has the danger of confusing situations where the government is acting on the best information it has at the time, learns something else and has to change direction or change opinion, change a policy. And at what point in time do we call that misrepresentation versus that's just the scientific process at work?

26:31Finally, Jennifer, what's your take on whether the Constitution covers the right to clean drinking water? I find it a little hard to square some of the cases where we have said, okay, that is a bodily integrity situation, but this one is not. And I don't know if at the end of the day, it becomes a constitutional question so much as a real fear. And maybe the best way I could put it is a no good deed going unpunished. If you're a city and you're providing drinking water or municipal waste services or something to the community to be helpful, you know, because that's what people think government should do, then you really might be opening yourself up to a whole slew of lawsuits and complaints over everything you might do wrong, every bad decision you make.

27:21So to that extent, I understand from a policy standpoint, we don't want this to rise to the level of a constitutional problem. And I think my real problem is when we have those contradictory interpretations. Well, we'll say it's fine if you're a prisoner being force fed something or being forced into a surgery, but if you're one of thousands, if not millions of people consuming lead in your water, oops, you know, I'm not going to say that we automatically have a right in the constitution to everything. But I probably do trend more toward looking at this as it's a little bit of a catch 22, right?