Weekend Law: Voting by Mail, Unions Back Off & Sandwich Guy

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1:55Elevate your wins with Adio. Start your free trial at adio.com slash iHeart. This is Bloomberg Law with June Grosso from Bloomberg Radio. We, as a Republican Party, are going to do everything possible that we get rid of mail-in ballots. We're going to start with an executive order that's being written right now by the best lawyers in the country to end mail-in ballots because they're corrupt. And you know that we're the only country in the world, I believe, I may be wrong, but just about the only country in the world that uses it. Actually, more than 30 countries have mail-in voting, including the UK, Canada and Australia.

2:38And voter fraud is extremely rare, although President Trump has complained about it for years and, of course, fought losing legal battles over allegations of fraud in the 2020 election. Still, on Monday, Trump said he'll sign an executive order to end mail-in voting and voting machines, which he claims are also highly inaccurate. For validation, he pointed to comments by Russia's authoritarian leader, Vladimir Putin, in an interview on Fox. You know, Vladimir Putin said something, one of the most interesting things. He said, your election was rigged because you have mail-in voting. He said mail-in voting every election.

3:23He said no country has mail-in voting. It's impossible to have mail-in voting and have honest elections. By midweek, the White House seemed to have shifted course with a top aide saying the administration would pursue legislation to attain Trump's goals. My guest is constitutional law professor Rick Pildes of NYU Law School. Rick, under the Constitution, what roles do the president, Congress and the states play in elections? So let's start with the president. So the president has no power constitutionally to dictate to the states how they conduct national elections. The Constitution gives states the power to regulate the way in which our national elections are held.

4:07And the Constitution also gives Congress the power to decide to sort of supplant the states in that role. But the president has no power constitutionally to dictate how states conduct elections. Let's say Congress agrees with President Trump. What could Congress do to change the way elections are held? I think that begins to get us into the more significant questions, in a sense. So even if the president doesn't have the power to do this, once he puts the marker out there on this by issuing the executive order, then the question becomes, you know, what's going to happen in the states and what's going to happen in Congress?

4:44Congress, in theory, does have the power to determine issues like the appropriate use of absentee ballots in national elections. Congress could require absentee ballots to be provided. It could determine the conditions under which they can be used. And I think, in theory, it probably could ban their use. There might be some constitutional challenges individual voters would bring. But fundamentally, the Supreme Court has recognized extremely broad power in Congress to regulate national elections under the elections clause. Now, you know, whether Congress would actually do this, I'm, I'd say, fairly skeptical about because, number one, of course, as long as we have the filibuster, the Democrats are going to oppose this and it won't get through the Senate.

5:29But number two, the Republicans have for a very long time been very much against nationalizing the election process. There will certainly be some Republicans, I would imagine, who would go along with the president. But I think there might well be pushback from within the Republican Party on going down this route at the national level. Election administrators, including in red states, are not going to be happy about a change like this because it means the election process will be more complicated for them to run because it would increase the number of people who would turn to in-person voting. So in theory, Congress could regulate in this area, but I don't know what the politics will be about that.

6:09I think then the question is, what will happen in red states that are run by legislators and governors who are sympathetic to the president's agenda? And will we see significant changes going on in red states about the use of absentee ballots? And let's say Congress does pass a law like that. What would a challenge look like? So if Congress were to ban absentee ballots altogether, I can imagine individual voters who cannot be in the jurisdiction on Election Day or during the early voting process, if a state has early voting, who say, I just can't exercise my right to vote at all, in effect, because I just, for whatever reason, cannot be in the jurisdiction during those days.

6:52I could imagine they might bring a challenge under the federal constitution and sort of right to vote constitutional doctrine. They would argue that this ban would impose a severe burden on their voting rights. So I suspect that would be the form the challenge would take. And I think the voters who would have the strongest case would be the voters in that category I just described, people who just physically can't be in the jurisdiction during any of the days on which voting takes place. I don't know whether they would win that constitutional challenge, but that's what I would envision. Yeah, I mean, the military votes by mail for that reason.

7:27Also, Republicans poured tens of millions of dollars last year into convincing their voters that ballots by mail are safe. And Trump himself has voted by mail. Now, what about voting machines? Trump wants to go from voting machines to paper ballots with watermarks. Well, I don't understand exactly what he has in mind yet about that. So we do overwhelmingly vote on paper ballots already. The question then is how those ballots are counted. And typically, you know, that's where machines come into the picture. So if you vote on what's called an optical scan machine, you fill in the bubbles on your ballot, you then enter the ballot into the machine that tabulates the vote.

8:17So if he means that voting should be done on a paper ballot, most of our voting already takes place that way. If he means that the vote should be somehow counted by hand rather than counted by a machine whose accuracy has been validated. and, by the way, we also do audits after the tabulation to make sure the machines are accurately counting the ballots. If he means to get rid of machines for counting the ballots, it's very hard to conceive of what that would mean and how that could possibly be done because it would mean, you know, hand counting millions of ballots, which would introduce huge delays in the counting process.

8:57And we know counting by hand is actually much less accurate than using the machines to count the ballots. So it's really unclear to me what he even has in mind about voting machines. I guess we need to see what the order actually ends up saying. What's really going on here? Is it an attempt to give the Republicans an advantage in the midterms because Democrats supposedly do better with mail-in voting than Republicans? Or is it a power grab or something else? It's a little hard for me to speculate about, you know, what exactly is going on. He's obviously had an issue about mail-in ballots for quite a while.

9:34He made a big issue of this in the run-up to the 2020 election. I think the view is that that ended up hurting him in the election because many Republicans then decided not to vote by absentee ballot and whether those people voted in other ways or not, you know, we don't know for sure. I'm sure that this statement by him is causing consternation among other elected Republican officials who probably think it's not in their interest to abandon absentee voting. But, you know, for whatever reason, he has a be in his bonnet about this issue. And he lacks the power to do anything directly about it. But we'll see if Congress ends up doing anything.

10:14Trump did issue an executive order in March that, among other things, would require proof of U.S. citizenship in order to vote. A couple of federal judges blocked that order. Does that indicate how other challenges might fare? Well, I think there's little doubt that an executive order that purported to tell the states that they could not use absentee ballots would be blocked by the federal courts. Again, I'm a little hesitant to speculate too much until we see the actual order and how it's designed and what powers it asserts. But he doesn't have the power to dictate to states that they cannot use absentee ballots or can only use them under certain conditions.

10:57So I don't have much doubt that an order that did that would be struck down, put on hold by the court. Trump is also using his influence to try to win the midterms by getting Texas to change its maps to give Republicans five more seats. And California is doing retaliatory redistricting to get five more Democratic seats there. On Thursday, Governor Gavin Newsom signed legislation for a special election in November to approve a redrawn congressional map in that state. This was not a press conference we intended to have. This is not an action the legislature intended to advance. This is not an election we expected to be holding on November 4th.

11:44But they shot the first bullet. I take it that though it's very unusual, there's no legal impediment to mid-decade redistricting. We've had very little mid-decade redistricting in American history, certainly modern American history. The last time this happened in a way that went to the Supreme Court actually was also from Texas in the early 2000s. I actually filed an amicus brief in that case urging the court to hold the federal constitution precluded mid-decade redistricting. The Supreme Court didn't agree with that position. But we're in a world in which control of the House rests on such a fine margin, kind of election after election, which is a very important part to understand as a backdrop to all of this.

12:30And so it leads the political parties to fight over every single inch of terrain. And so various kinds of, you know, norms that have been around for a while, you know, are breaking under that pressure, which is what's happening with the constraints against mid-decade redistricting. And the Pandora's box that opens up is, you know, if they can do it once, they could just adjust their districts every couple of years to try to maximize partisan advantage throughout the decade. And of course, it's going to trigger, you know, retaliatory mid-decade redistricting. And it's another example of the kind of tactics that at the end of the day really undermine public confidence in the legitimacy of the process.

13:11gerrymandering is bad enough when it happens once a decade. But if we move down a path toward sort of perpetual redistricting for partisan advantage thinking, it's all the worse. So none of these things really promote the integrity of the process from the perspective of voters. Perpetual redistricting. That's a scary thought. Thanks so much, Rick. That's Professor Rick Pildes of NYU Law School. Coming up next on the Bloomberg Law Show, there's been a significant drop in union elections as the unions play a wait-and-see game, wary of organizing and taking risks during the Trump administration. I'm June Grosso, and you're listening to Bloomberg.

13:53This is the Bloomberg Tech Minute brought to you by ChachiPT. Now with ChachiPT Work, I'm Carol Masser. Globetrotters hunting for airfare bargains are in for a rude awakening as the days of stumbling across a cheap seat on a popular flight could soon disappear. Bloomberg's Juan Ha reports that airlines from Delta to Virgin Atlantic are adopting artificial intelligence to change seat prices more quickly by weighing dozens of variables in real time, helping capture more revenue while shrinking pricing gaps that once allowed travelers to find bargain fares. Machine learning models can more accurately forecast demand by analyzing historical booking patterns, seat inventory, and seasonal trends, while also continuously tracking competitors' fares and capacity changes to update prices in near real time.

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15:25Apply for Apple Card now and use in minutes with Apple Pay. Subject to credit approval, AppleCard is issued by Goldman Sachs Bank USA Salt Lake City branch. Terms and more at AppleCard.com. Everyone's talking about how AI is transforming work, especially in sales. While the landscape shifts, one thing remains the same, the thrill of closing a deal. Whether it's a gong or a confetti machine, every team has its celebration rituals. Adio is designed for that moment. It's the agentic CRM that turns customer signals into actionable insights, helping you close deals faster with revenue agents and automations working around the clock.

15:57You'll have everything you need to scale your go-to market efforts. Elevate your wins with Adio. Start your free trial at adio.com slash iHeart. President Trump made his position on unions pretty clear in a conversation with Elon Musk about a year ago. I mean, I look at what you do. You walk in and you just say, you want to quit? They go on strike. I won't mention the name of the company, but they go on strike and you say, that's okay. You're all gone. You're all gone. So every one of you is gone and you are the greatest. Trump was no friend to unions in his first administration, and in the past six months, he's ended collective bargaining for two-thirds of federal workers, effectively paralyzed the federal agency that decides unfair labor practices and disputes over union elections, and rescinded the minimum wage that federal contractors have to pay workers, just to name a few anti-union actions.

16:52So then it may not be so surprising that there's been a significant drop in union elections and petitions to the National Labor Relations Board in the last six months. That stands in contrast to the previous three years, where there were historic numbers of union elections, representation petitions, and unfair labor practice charges filed each year. My guest is labor law expert Anne LaFasso, a professor at the University of Cincinnati Law School. And the average number of newly certified unions per month dropped 22.3 % between January and July of this year. And there's been a 15.8 % drop in the number of representation petitions filed in that time period.

17:39How do you count for this significant drop? I think you have to look at both sides of the equation. First, you had historic increase under Biden and under a progressive general counsel. The board was relatively progressive, but not quite as progressive as general counsel. Jennifer Brutso was. So Brutso was aggressively progressive. She looked at the law and she interpreted the law in a way that, in my view at least, was reasonable, but on the progressive side. The law can always be interpreted more progressively or more conservatively, more pro-union or more pro-business. And it's not like the law has a single meaning.

18:19And she was on the very progressive side, and that emboldened and encouraged unions to file election petitions and also to file unfair labor practice charges, even where it might have been a more iffy theory of why they were being unfairly treated. iffy because in the past they may not have gotten that theory validated for the board. So that's going to increase the numbers. Then when Trump came in, they're remembering the first Trump board. And the first Trump board, as progressive as Jennifer Brutto was, it was reactionary. It was extremely to the right, much more pro-business. And even in some instances, I would say not just pro-business, but anti-union, more so than any other board ever in the history of the National Labor Relations Board.

19:08And they're remembering this, and it was very painful for them. So they're in this sort of wait and see pattern, anticipating the worst. So I'm at a conference right now, and I'm listening to people, and they don't want to file petitions right now because they are really afraid. Do you think the new board is going to be as conservative as the board in the first Trump administration? Yeah, the board doesn't have a quorum. I personally don't think that the Trump 2 board will be as reactionary as the Trump 1 board. I could be wrong. The reason I'm saying this, though, is because the general counsel, Calvin, who is a conservative man, so he's going to interpret the law in a more conservative fashion.

19:48It's going to be more pro-business fashion. However, he's an institutionalist. He's been the regional director for one of the regions out in the West, I think in California, for a long time. He was a board member. He's loved by everyone. He was at the board when I was there. Everyone loved him. He was just kind. He was easy to work with. He doesn't want to destroy the agency. Also, people Trump put forward for the board, they're also institutionalists. He could have picked people that had union-busting careers, and he doesn't seem to be doing that. So it's possible that the fear that's going on is an overreaction, but I think at least they're waiting and seeing what this board will do.

20:31So when you put those two things together, though, the sort of record highs and then the remembering of what the Trump board did in his first administration, you get this huge swing. I don't know if it's going to last. It's going to be very interesting to see. And I think it's going to depend on what this board starts doing and whether it was willing to dismantle precedents. Is this reluctance coming from the union leaders or the workers who might fear the political climate, especially in light of the economy and the labor market? I mean, where's it coming from? Oh, both, definitely. So from the workers' point of view, they're scared.

21:09There are people that are afraid to even speak out against the president for fear of retaliation, because we saw that the president decided to fire a large percentage of the federal workforce, which he has direct control over. So people are afraid to speak out. Now, whether that's justified or not, the historians will tell us that. But people certainly are afraid. And so they don't want to stick their necks out right now. But union leaders who are thinking about these things and hearing from their constituents are also concerned. And they're more in the wait and see pattern, Like, well, let's see what's going on.

21:44But the workers themselves, I think, are afraid. And they're also afraid because the economy isn't as good. So when you have a much better economy, which despite what everyone was saying, we had a pretty good economy under Biden, but the economy has been going down and down. And the labor market is much tougher right now. There's no slacks in the labor market. So it's hard if you get fired from a job right now, let's say you're unjustly fired because you're a union activist, you may not get another job. It's very tough. So this makes people afraid to organize and it makes the labor organizers' job and the labor union leaders' job that much more difficult.

22:25You say wait and see, but don't the unions already know where Trump stands, especially with the executive order that he issued ending collective bargaining for two thirds of the federal workforce. Even before Trump took office, student athletes dropped organizing efforts at Dartmouth College and the University of Southern California. Well, that was smart of them because the general counsel has withdrawn Abuso's memo, her general counsel memo, stating that student athletes are actually employees and should have the protections of the board. So we do know almost certainly what this board would do with that.

23:06So on that issue, it's pretty clear. But there are sometimes some very easy issues. For example, remember the early 2000s when Bush was the president? Schaumber and Wilma Liebman, two people that couldn't be further apart, a progressive Liebman and a conservative Schaumber, a very conservative Schaumber, they agreed on 600 cases together. Now, they were all found voids by the Supreme Court because there was only two and they weren't a quorum, but not because of what they decided. Those were all easy cases. There's plenty of easy cases to go forward. What they're waiting and seeing on, and I think what they are not going to do, is we're not going to see them pushing the envelope.

23:46Like, I would be surprised if unions say, OK, we're going to ask for expanded remedies right now. I wouldn't ask for them because I wouldn't want that precedent to go before a court. First of all, I wouldn't want to go before the board and then I wouldn't want to go before the court. So they're not going to push the student-athlete issue right now. So if I were student-athletes right now, I might go for a voluntary recognition, but I wouldn't go for anything else. And isn't the president in a legal battle to exert more control over independent agencies like the NLRB? The president is trying to control the administrative agencies a lot more.

24:21And the president has taken the position that he can fire board members. And only the Supreme Court can tell us if that's true. My guess is even though right now the precedent at the Supreme Court is that he can't fire commissioners or board members, that they are likely to reverse that. It will be a divided vote. And I'm talking about Humphrey's executor. So if he can fire anyone at will, if he doesn't like a decision that comes out of the board, then he'll just fire the person. So I'm sure that these board members are going to be somewhat more beholden to the president than they normally were in an independent agency where they really were independent of the president.

24:58I think that will happen. And let's face it, he already fired member Wilcox. And I do want to remind the audience that she was the first Black female board member. And so the look is very, very bad that he decides to fire the first Black board member, but not the Democrat white male. And again, that could be a coincidence. I don't know, but it is a very bad look. And so it does send a message, definitely. But the president is not going to fire a board member because of an obvious, simple case of enforcing the law. I think what he would do is if it's something that gets the chamber upset, that gets Starbucks or Amazon upset.

25:37And that doesn't mean Starbucks losing a case or an election. I mean, where Starbucks thinks this is ridiculous because these are expanded remedies or something like that. So yes, I think it's just more nuanced. And I at least am taking also a wait and see. And I'm optimistic it will not be as bad for unions as it was under the Trump one administration. Let me put this way. I wouldn't bet on what I'm saying. I just think it's more likely than not. Like 49 to 51 percent. That's where I'm at. Would you say that labor unions are already playing defense? They're sort of on the front lines of some of the legal fights against Trump's reduction in force plans and moves to exclude two thirds of the workforce from collective bargaining rights and initiatives that shutter agencies and affect universities.

26:29Absolutely. Unions are definitely on the defensive and they're concerned. There's a lot of things unions can do. But remember, whatever they do for their members, they also can't live without members. They need fees because organizing takes money and getting benefits for their members takes money. So they are on the defensive and they want to survive. And I can't get into the mind of every union, but I wouldn't be surprised if for them this is an existential threat. That's how higher education feels right now. I mean, I'm a member of a union at my university, and we certainly feel that this is an existential threat.

27:06People are palpably afraid. And by the way, we're a public institution. So what's going on in public institutions is more at the state level, but it's the same kind of thing that's going on, at least in the red states that are part of this idea that unions are not good for the economy and that higher education is left-wing propaganda. And I think a lot of us are afraid to speak out. What are we going to do? We want to keep our jobs, even 10 years on the line. So it's going on all over the country. By laying back now, is there a risk to the momentum that the unions seem to have picked up in the last few years?