Weekend Law: Voting Rights, Comey Indicted & Bayer Litigation

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1:32This is Bloomberg Law with June Grosso from Bloomberg Radio. This Trump Supreme Court just threw out the protections that were earned by the civil rights movement. Those who bled, who fought, and who died so that people might have a voice. The Voting Rights Act is considered the crown jewel of the civil rights movement. And on Wednesday, the Supreme Court's conservatives took a wrecking ball to what was left of the landmark law after having weakened it twice before. Democratic Senator Raphael Warnock said the decision is a huge step backwards for racial justice. Make no mistake, this ruling harkens back to the darkest days of the Jim Crow era.

2:24The court severely limited the use of the Voting Rights Act, making it difficult, if not impossible, for minorities to challenge electoral maps as racially discriminatory. It was a 6-3 vote, with Republican-appointed justices in the majority and Democratic-appointed justices in dissent, in a decision that buttresses Republican efforts to keep control of the House in this year's midterms and beyond. My guest is one of the country's leading authorities on election law, Richard Hassan, a professor at UCLA Law School. Rick, how would you characterize this decision? Is it a game changer? This is an earthquake.

3:06It is one of the most significant decisions regarding elections that the Supreme Court has ever issued. Tell us why. So when Congress initially passed the Voting Rights Act in 1965, it did things like assure that black voters in the South would be able to register to vote. But it didn't do anything about the lack of political power that black voters would have, even when they do vote, especially in situations where white voters and minority voters prefer different candidates. In 1982, Congress responded to that by amending Section 2 of the Voting Rights Act to provide that when white voters and minority voters prefer different candidates and it's possible to draw a district where minority voters can elect their candidate of choice, under some circumstances, states have to do that.

3:53And from 1986, the understanding was that this is what Section 2 required. What Justice Alito did in his opinion is essentially eviscerate Section 2 of the Voting Rights Act, although he claims not to overrule the test that's been in place since 1986, the so-called Jingles test. He does that, and he imposes a test that will be virtually impossible for minority voters to win. This is going to lead to many more legislative bodies where there will be only or mostly white representatives and minority voters will not have fair representation in Congress, in state legislatures and in local bodies like city councils and school boards.

4:37I mean, how did Justice Alito explain? What was his reasoning? So what Justice Alito did was say that race consciousness in law is a potential violation of the Constitution. The Constitution requires a kind of race blindness when it comes to elections and comes to other areas. And so in order to keep the Voting Rights Act constitutional, he had to reconceptualize it to change the standards. What he says is that when a group of minority voters wants to show a claim under Section 2, they've got to show that if, say, a computer algorithm was drawing districts by chance, they would have had a chance to have this district drawn to give them the opportunity to elect a candidate of choice.

5:25You can't be race conscious in drawing districts. That is turning the Voting Rights Act on its head. Further, he says that states can defend the drawing of district lines that dilute the power of minority voters by saying they're doing it to favor their political party. So partisan gerrymandering, far from being unconstitutional, becomes a defense to a voting rights case. And that is profoundly ironic. It also takes the idea that someone in Alabama could pass a law that would favor Republicans but not favor white voters. It just makes no sense given the tremendous overlap of race and party in these cases.

6:01Alito, I understand when he was reading parts of his decision from the bench, said basically, don't listen to the dissent. This is not really a big deal. I mean, why do you think they kept the Voting Rights Act? Is it for appearances sake so they could say this isn't a big deal? Don't look here? So in 2021, Justice Alito wrote a majority opinion for the court in a case called Brnovich versus DNC. When that case came out, I said what Justice Alito has done is essentially eviscerated the Voting Rights Act Section 2 as applied outside of redistricting. And since that case, as I recounted in a recent Law Review article that Justice Kagan cited in her dissent, there has been no successful case under Section 2 since Brnovich outside of redistricting.

6:46He's doing the same thing here. In Brnovich, he pretended he wasn't overturning the Voting Rights Act, but he imposed such a test. He doesn't want to take the political heat for overturning the act, but he essentially renders it a dead letter, as Justice Kagan says in her dissent. Justice Kagan said the decision completes the Supreme Court's three-step plan to eliminate the protections of the Voting Rights Act that started in 2013 in the Shelby County case. Can you tell us about those three steps? So there were two key parts to the Voting Rights Act until 2013. One part, as you mentioned, is Section 5 of the Act.

7:23That required states with a history of racial discrimination in voting to get federal approval before they made changes in their voting rules, and they'd have to show that the changes wouldn't make minority voters worse off. In Shelby County, in a John Roberts opinion, the conservatives on the court said that the formula used to figure out which states are covered under Section 5 was outdated and therefore unconstitutional. But the majority assured us, don't worry, there's always Section 2 to protect minority voters. Then came Step 2, that Brnovich case, where the court said Section 2, outside of the context of redistricting, is essentially a dead letter.

7:57And here comes the third and final step, which is Justice Alito, in his opinion in Calais, saying, here's what Section 2 means now, essentially rendering Section 2 a dead letter as it applies to redistricting. This is going to bleach all of these legislative bodies. It is going to make it very difficult, if not impossible, for minority voters to win in any of these lawsuits. Is there anything left of the Voting Rights Act? Well, there are parts of the Voting Rights Act that survive. For example, there's a ban on literacy tests. There are other requirements of the Voting Rights Act, but the two big parts of the Voting Rights Act, Section 2 and Section 5, are there in a shell only.

8:35And it is a sad day for voting rights and democracy in the United States. And progressive groups have calculated that as many as 19 congressional districts with primarily Black or Hispanic populations are at risk. I do want to make an important point, which I think some people are missing, which is that not only will Republicans have an incentive to get rid of these districts, so will Democrats. Democrats will want to take their reliable black voters and spread them out in more Democratic districts, thereby decreasing the number of minority opportunity districts, but still helping Democrats win their elections.

9:13And so I think the real losers here are minority voters and the American people overall. If we're going to live in a multiracial democracy, we need to have fair representation for all people. Republicans in the South are already calling for new maps to be drawn because of this decision. How do you think it will affect the midterms? It's not clear how this decision will affect the midterms because many states have already conducted their primaries and it would be unusual to go back and redraw lines and require there to be a new set of primaries. But there are some places, most importantly in Florida, where they are already right now considering a new districting plan.

9:49They can now consider a district plan that doesn't have to take into account the requirement to draw districts that were thought necessary under Section 2 of the Voting Rights Act. And so in Florida and maybe a few other places where they have not held primaries, we could see some redrawing of district lines. But in 2028, we may see the full effects of this decision? I fully expect states like Louisiana and Alabama, if they can't get it done in time for 2026, to certainly get redistricting, diluting minority voting power in time for 2028. As you know, President Trump started this mid-decade redistricting battle.

10:25Does this decision affect the redistricting that's been done in Texas, California, Virginia, etc.? Are any of those maps affected or it doesn't matter because they were done for partisan reasons? Well, it's a hard question to answer because partisan gerrymandering is now a defense. And so that should render maps drawn for partisan reasons immune from Section 2 claims. But I should say that the Virginia maps, which were recently passed by voters, may or may not survive state court review in the Virginia Supreme Court. And so there's still some question marks as to exactly what the lines are going to be for the remaining primaries in 2026.

11:07The Supreme Court has been accused more and more of being political. Though Chief Justice John Roberts likes to talk about, you know, we're not politicians. Does this decision with six Republicans on one side and the Democrats on the other, does this make it even more political or seem even more political? Well, I think it's very clear that the conservatives on the Supreme Court are helping, whether intentionally or not, the Republican political agenda. I think the general mood of the Supreme Court is that, you know, you can do anything for partisan advantage and the Supreme Court is not going to police it.

11:42And so whether the justices honestly believe that they're simply applying jurisprudence or they are partisan hacks, as Justice Barrett claimed they were not, it doesn't really matter. The effect is going to be the same and the effect is going to be to help the Republican Party. Could Congress pass a law to get around this? Congress could pass a law revitalizing the Voting Rights Act because this was a matter of statutory interpretation, not a constitutional decision. And so that would dare the Supreme Court to actually do something and strike it down again. I think that this decision is going to lead to more calls for Supreme Court reform, because it's pretty clear what the political direction of the majority of the court is.

12:25And it's quite a partisan direction. You've written that this is the worst Supreme Court ruling in a century. Explain why. Well, when it comes to voting rights, Section 2 was really revolutionary in assuring we could have a more multiracial democracy. And the Supreme Court, by turning the Reconstruction Amendments on their head and making race consciousness, which Congress required in Section 2, something that is constitutionally suspect, What the court is going to do is going to change the nature of political representation in this country, bringing us back to a time well before the passage of the Voting Rights Act amendments in 1982.

13:05It's been great having you on, Rick. Thanks so much. That's Professor Rick Hassan of UCLA Law School. Coming up next, James Comey is indicted for a second time. I'm June Grosso, and you're listening to Bloomberg. Miss satisfying breads and pastas and want to add protein without going overboard on calories? Stacked sandwiches, fully loaded bagels, noodles built for serious sauce. Hero Bread delivers up to 19 grams of protein. Think bagels and elbow noodles with nearly twice the protein of national bestsellers, but less than half the calories. Plus, you can get up to 32 grams of fiber per serving, a bonus when you're trying to stay full and fueled.

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15:43And Trump told reporters this week that Comey's post probably put his life in danger. 86, you know, it's a mob term for kill him. You know, you ever see the movies? 86 him. The mobster says to one of his wonderful associates, 86 him. That means kill him. Comey said at the time of the post that he assumed the numbers reflected a political message and he deleted the post when he learned some people were interpreting it as a call to violence. The first indictment against him on unrelated false statement and obstruction charges was dismissed by a judge because the interim U.S. attorney had been improperly appointed.

16:25Comey says he's innocent of these charges as well. Well, they're back. This time about a picture of seashells on a North Carolina beach a year ago. And this won't be the end of it. But nothing has changed with me. I'm still innocent. I'm still not afraid. And I still believe in the independent federal judiciary. So let's go. It's a bare bones, two page indictment. And even Republican Senator Tom Tillis said he hopes the Justice Department has more evidence. I searched to the end of the Internet last night. I can't find one example where the number 86 had anything to do with any violent threat.

17:06So hopefully there's more to it than just the picture in the sand. Joining me is former federal prosecutor Robert Mintz, a partner with Carter and English. Bob, the term 86 is ambiguous. Is it going to be a challenge for prosecutors to prove that this was even a threat? So the first question that any juror or judge is going to ask when they take a look at this case is to focus on what does 8647 mean? You have to go back and take a look at the original derivation of the term 86. And apparently the prevailing view is that it started somehow in the restaurant business. And it really had to do with the fact that an item on the menu was no longer available or that a customer at a restaurant was going to be asked to leave the restaurant.

17:53And it's only recently that it's come up in a political context. One of the most prominent use of the term 86 in the last several years was back in February of 2024, when at the time, Representative Matt Gaetz of Florida posted, we've now 86ed McCarthy McDaniel McConnell, which was apparently a reference to Kevin McCarthy losing his House speakership, Republican National Committee Chair Ronna McDaniel leaving her role, and Senator Mitch McConnell announcing he would step down as majority leader. So we've seen the term 86 used in a political context, sometimes meaning to get rid of a political leader.

18:35Here, the government apparently is going to try to convince a jury ultimately that this was a statement by former director Comey to incite violence against the president. And when he said 86-47, he was arguing that the president should be assassinated. That's really the heart of what this prosecution will ultimately be about. And what's the standard of proof here? Yeah, so this is a very high legal standard. In this case, Mr. Comey was charged under a statute that criminalizes the act of knowingly and willfully making any threat to take the life of, to kidnap, or to inflict bodily harm upon the president of the United States.

19:17And the second count in the indictment criminalizes making those threats through interstate communications. But the real question is, what did Mr. Comey intend when he posted that Instagram photo? He claims that it was political speech and that he had no intention to do violence or to try to incite anybody else to do violence. So prosecutors here are going to have to overcome not only the common sense definition, but Mr. Comey's outright denial that he intended to threaten the president. Let's talk about possible defenses. Comey's lawyer said, we look forward to vindicating Mr. Comey and the First Amendment.

19:57Well, I think there's going to be a whole host of defenses here. First and foremost, I think, is this First Amendment question because there is a long history here of the courts interpreting that statute and weighing it against First Amendment rights. The original Supreme Court case of Brandenburg v. Ohio held the constitutional guarantees of free speech and free press, don't permit a law to forbid or prescribe advocacy of the use of force or of law violation, except in limited circumstances where the person making a statement is inciting or producing imminent lawless action. In other cases, even more recently, made it even harder to bring these cases.

20:42So these types of threat cases are always viewed through the lens of First Amendment rights. And the most recent case, the one that really is the binding precedent right now, set the threshold even higher in 2015. It was actually an opinion written by Justice Roberts, and it concluded that the mindset of the person who made the comment must be considered. It's not enough for the subject of a comment to view it as a threat. The person who made it must have intended it that way. So they have to get inside of Jim Comey's head and try to argue that he intended this as a real threat to the president.

21:21And one of the things that's going to be interesting here is when you look at the indictment that's brought, and it's very bare bones. It does not have much information in it at all, but it does cite to certain language which was read before the grand jury if things were done here as they typically are. And the standard that was read to the grand jury was that Mr. Comey knowingly and willfully made a threat to take the life or inflict bodily harm upon the president. And then they talk about the photograph and they say which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of intent to do harm to the president of the United States.

22:00I expect that one of the first things the defense is going to do is argue that the presentation before the grand jury was tainted because that standard that I just read was a standard from a case that had been overruled by the more recent case of 2015 that said that you have to look beyond what the reasonable recipient would interpret from those comments. You also have to specifically look at what the speaker meant when they made those comments. I think the defense is going to argue that the grand jury was given improper legal advice when they were given the improper legal standard when they returned that indictment.

22:37So that will certainly be one of the issues that I think we'll see raised by the defense. And, Bob, there's that case from 1966 over the draft that really illustrates how the First Amendment interest is weighed in these threat cases. These types of cases, which may appear on their face to be simply threats against the president, could also be viewed as political speech. This very statute was interpreted in a case called Watts v. United States. And in that case, a protester was convicted for saying, if they ever make me carry a rifle, the first man I want to get in my sights is LBJ, a reference to President Johnson at the time.

23:17That individual was convicted, but it made its way to the Supreme Court where the court said that that was political hyperbole rather than a true threat and thus not within the prohibition of this statute. So it's an example of just how specific and how imminent these threats have to be and why the courts have at least traditionally looked at this kind of language as political language rather than a call to violence. And in this case, I think it's going to be an uphill battle for prosecutors to prove that this was not political speech, that this was an actual imminent threat made by James Comey against the president.

23:57Comey's lawyer told the judge that they're going to challenge the case by claiming a vindictive and selective prosecution. So not only is this the second indictment against Comey, but according to Bloomberg sources, federal prosecutors are pursuing additional charges against Comey for allegedly leaking classified information. They will try to argue that the Justice Department already pursued a case against Mr. Comey less than a year ago, which was ultimately dismissed by a judge based upon the finding that the prosecutor at the time was not properly appointed. So they're going to try to argue that this is just another attempt by the Trump administration to go after one of Mr.

24:42Trump's perceived enemies, James Comey, and that there's really no merit to this case, that this case should not have been brought in the first place, and that at best, this is a politically veiled attempt to try to go after Mr. Comey after having failed with the other prosecution. Many commentators have noticed a pattern where acting Attorney General Todd Blanche, who used to be Trump's personal criminal lawyer, seems to be pushing to bring cases against Trump's perceived political enemies. And they're very thin. For example, the one recently against the Southern Poverty Law Center. Many say he's trying out for the role of attorney general.

25:24Well, he has made statements directly addressing the evidence in the case. He understands what the legal standard is. And he is saying that the government has additional evidence that will prove beyond a reasonable doubt that Mr. Comey intended that photograph as a threat against the president. We haven't seen that evidence yet, but prosecutors have an ethical duty to bring cases only if a reasonable jury could convict based upon that high standard of beyond a reasonable doubt. So just getting the indictment doesn't mean there's enough evidence to ultimately gain a conviction. And that's a situation where prosecutors have to look at the case.

26:05And even though they know they could go into a grand jury and get that grand jury to indict based upon the lower legal standard, they have an ethical obligation not to bring the case if they know that the evidence is insufficient for a reasonable jury to convict ultimately on that higher beyond a reasonable doubt standard. At this point, it's hard to see how prosecutors could look at the evidence that's on the record and argue that a reasonable jury could find that Mr. Comey intended this as a threat. There's too much ambiguity in the statement. There's too much ambiguity in terms of his conduct.