# Weekend Law: Redistricting Frenzy & FDA Allows Flavored Vapes

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 30 May 2026, 37 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/44bb6bac-87f8-4354-ae15-b45a0007fcb0/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

June Grasso talks to top legal experts about the biggest stories of the week. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 1: Are you.
[0:12] Speaker 2: Ready to use your votes?
[0:15] Speaker 1: Are you ready to vote?
[0:17] Speaker 3: Like you.
[0:19] Speaker 1: Because your loves the prime water In Montgomery, Alabama, the
[0:24] Speaker 1: city considered the crucible of the civil rights movement, thousands
[0:28] Speaker 1: of people rally this month to protest against the state's
[0:32] Speaker 1: efforts to dismantle congressional districts that have black representatives. Civil
[0:37] Speaker 1: rights leaders, democratic members of Congress from across the country,
[0:41] Speaker 1: union leaders and pastors denounced the Supreme Court's Calais ruling,
[0:46] Speaker 1: which eviscerated the landmark Voting Rights Act and set off
[0:50] Speaker 1: a frenzy by Southern states to reshape voting districts with
[0:54] Speaker 1: large minority populations. New Jersey Democratic Senator Cory Booker compared
[1:00] Speaker 1: Calais to pass Supreme Court decisions like dred Scott and
[1:05] Speaker 1: Plessy versus Ferguson.
[1:07] Speaker 2: You see, we have seen this before for some people
[1:11] Speaker 2: in black groups try to deny or take away our rights.
[1:16] Speaker 1: But this week a stunning legal victory for Democrats as
[1:20] Speaker 1: a panel of federal judges refuse to let Alabama use
[1:24] Speaker 1: a congressional map it adopted three years ago because it
[1:28] Speaker 1: intentionally discriminated on the basis of race. The year's long
[1:33] Speaker 1: legal fight over Alabama's maps includes several interventions by the
[1:38] Speaker 1: Supreme Court, and Republicans are asking the court to intervene
[1:42] Speaker 1: again and reverse this week's decision. My guest is elections
[1:46] Speaker 1: law expert Richard Brefalt, a professor at Columbia Law School,
[1:50] Speaker 1: which there have been so many twists and turns in
[1:53] Speaker 1: the fight over Alabama's congressional maps give us some of
[1:57] Speaker 1: the background.
[1:58] Speaker 4: It's incredibly confusing. So this latest Alabama case really is
[2:03] Speaker 4: the ongoing saga of endless litigation following the twenty twenty census.
[2:07] Speaker 4: In the Alabama's redistricting, Alabama has seven House seats that
[2:11] Speaker 4: didn't change as a result of a court decision some
[2:15] Speaker 4: decades earlier. Basically, it has a white majority in six
[2:18] Speaker 4: seats and a black majority in one. This was as
[2:20] Speaker 4: of twenty twenty, although the state is about thirty percent black.
[2:24] Speaker 4: Voting Rights Act case was brought challenging that A three
[2:28] Speaker 4: judge court that's the kind of court that's created when
[2:30] Speaker 4: challenges heard districting are brought, found that Alabama had violated
[2:35] Speaker 4: the Voting Rights Act that had engaged in a legal
[2:38] Speaker 4: vote dilution and ordered a new map, But the Supreme
[2:41] Speaker 4: Court stepped in before the twenty twenty two election and said, no,
[2:45] Speaker 4: it's too close to the election, although it was actually
[2:47] Speaker 4: quite a number of months before. It was I think
[2:49] Speaker 4: in the spring, but they said it was probably too
[2:51] Speaker 4: close to the primaries. And so that case ultimately one
[2:54] Speaker 4: to the Supreme Court, and many people surprised. The Supreme
[2:57] Speaker 4: Court by a voter five to four and I think
[3:00] Speaker 4: it was twenty twenty three voted to affirm with the
[3:03] Speaker 4: three judge court at founding this concluded Alabama had violated
[3:06] Speaker 4: the voting right sack and indicated that Alabama probably should
[3:09] Speaker 4: have two but it's all opportunity districts where black voters
[3:13] Speaker 4: have a real opportunity to elect their candidate of choice.
[3:16] Speaker 4: Went back to the legislature. Legislature, however, did not do that.
[3:19] Speaker 4: The legislature basically came up with another plan, which was
[3:22] Speaker 4: essentially six white majority one black majority district that was
[3:26] Speaker 4: then challenged and the three judge court said, no, you
[3:29] Speaker 4: have not complied with our ruling. It still is vote diluted,
[3:32] Speaker 4: and we actually think it's unconstitutional because it reflects intentional
[3:37] Speaker 4: racial discrimination. So they enjoyed this new map that's sometimes
[3:41] Speaker 4: called the twenty twenty three map, and a special master
[3:44] Speaker 4: created a map which created two black majority districts, well
[3:47] Speaker 4: one I think is just under majority one just over
[3:50] Speaker 4: in Alabama for the first time since reconstruction elected to
[3:53] Speaker 4: black representatives in twenty twenty four.
[3:57] Speaker 1: Then at the end of April, the Supreme Court severely
[4:01] Speaker 1: weaken the Voting Rights Act in the Calais decision. Tell
[4:04] Speaker 1: us how that affected the fight in Alabama.
[4:07] Speaker 4: The Supreme Court significantly, I think the word the Court
[4:10] Speaker 4: is using is updated its analysis of vote dilution claims
[4:14] Speaker 4: under section to a Voting Rights Act, making it much
[4:16] Speaker 4: much much harder for them to prevail. At that point,
[4:20] Speaker 4: Alabama came in and said, you know, we want to
[4:22] Speaker 4: reopen this case, and so with the Supreme Court at dawn.
[4:25] Speaker 4: In the earlier Alabama case, is basically sustained the injunction
[4:29] Speaker 4: that the lower court had issued barring Alabama from using
[4:34] Speaker 4: its own legislatively adopted map. So they went to the
[4:37] Speaker 4: Supreme Court this is in either late April or very
[4:40] Speaker 4: early May, and asked the court to lift the injunction
[4:44] Speaker 4: on the legislature's twenty twenty three map. The court agreed
[4:47] Speaker 4: and said we're sending this back to the lower court
[4:50] Speaker 4: for them to reconsider their decision in light of our
[4:53] Speaker 4: decision in Calais. They didn't say the lower court was wrong,
[4:56] Speaker 4: but they just said, obviously the legal rules have changed,
[4:59] Speaker 4: we want the lower court to reconsider. While that was happening,
[5:03] Speaker 4: the Governor of Alabama called a special session of the legislature.
[5:06] Speaker 4: At this point, primaries were already ongoing for the Alabama
[5:10] Speaker 4: candidates for Congress. Basically, the governor said and got the
[5:13] Speaker 4: legislature who agree to stop the primaries in four of
[5:16] Speaker 4: the districts, the two black majority districts and adjacent districts
[5:20] Speaker 4: which would be most likely impacted by this, and said,
[5:22] Speaker 4: we really want to go back to the twenty twenty
[5:24] Speaker 4: three map. So they've now stopped the primaries in those
[5:27] Speaker 4: four districts, and the legislature basically thinks that with the
[5:31] Speaker 4: injunction lifted the twenty twenty three map, which is the
[5:36] Speaker 4: legislature's map, which would be six majority wide one black
[5:39] Speaker 4: majority district then also for partisan purposes, likely six Republican
[5:43] Speaker 4: and one Democratic. That was the result of the legislature's
[5:46] Speaker 4: vote in early May. The plaintiffs who brought the original
[5:50] Speaker 4: case then went right back to court before the three
[5:53] Speaker 4: judge court which had imposed the map that was used
[5:56] Speaker 4: in the last election.
[5:57] Speaker 1: Will you explain the decision of the three judge panel,
[6:00] Speaker 1: which by the way, consisted of two Trump appointees and
[6:04] Speaker 1: one Clinton appointee.
[6:06] Speaker 4: And that court issued a one hundred and three page
[6:09] Speaker 4: opinion where they concluded that the legislature's recent action was
[6:14] Speaker 4: both unconstitutional and violated the Voting Rights Act even under
[6:18] Speaker 4: the Calais standard. And the court basically said, the Supreme
[6:22] Speaker 4: Court did not say that we were wrong before. They
[6:25] Speaker 4: just said you've got to reconsider. And the court went
[6:27] Speaker 4: through the entire process by which Alabama adopted the twenty
[6:31] Speaker 4: twenty three plan, including its refusal to create a second
[6:34] Speaker 4: black majority district, the kinds of considerations it considered its deliberations,
[6:39] Speaker 4: and concluded that that was intentional racial discrimination. They then
[6:43] Speaker 4: also applied the Calais standard and said cala doesn't mean
[6:46] Speaker 4: you never can prove vote dilution. And they found that
[6:49] Speaker 4: given that there was intentional racial discrimination and given other factors,
[6:54] Speaker 4: and given just how much this appears to be driven
[6:56] Speaker 4: by race, and how much brace is dominant in Alabama politics,
[7:00] Speaker 4: that this really was more race than party and therefore
[7:03] Speaker 4: violated the Voting Rights Act two. And then they also
[7:06] Speaker 4: had some analysis about what's called the Percell principle, which
[7:09] Speaker 4: is the idea that courts should not step in and
[7:11] Speaker 4: change the voting rules on the election. But of course
[7:14] Speaker 4: they pointed out, it's kind of a mess as to
[7:16] Speaker 4: what's the baseline. Here is the baseline the twenty twenty
[7:20] Speaker 4: four map, which is what the state was using up
[7:22] Speaker 4: until early May, or is the baseline the map that
[7:26] Speaker 4: the state has just reimposed. And the court said, going
[7:29] Speaker 4: through the analysis that that case requires, we think the
[7:32] Speaker 4: disruption is so great if the state's going to go
[7:35] Speaker 4: back to that old twenty twenty three map, and that
[7:37] Speaker 4: there's actually less disruption if they stick with the twenty
[7:40] Speaker 4: twenty four maps. So they also felt that justified the
[7:43] Speaker 4: injunction is to kind of summon up. In granting an
[7:46] Speaker 4: injunction like this, the court has to be conus they
[7:48] Speaker 4: are both the substantive merits, but also whether an injunction
[7:52] Speaker 4: is wise, and they said yes on the substant merits.
[7:55] Speaker 4: The Alabama plan is both unconstitutional and violates the voting
[7:58] Speaker 4: Rights Act and on the rules for an injunction. We
[8:02] Speaker 4: think actually that this is really preserving the status quo
[8:06] Speaker 4: rather than disrupting it on the the election.
[8:08] Speaker 1: So one hundred and two pages of opinion. Do you
[8:11] Speaker 1: think the panel's findings will hold up under Supreme Court review?
[8:16] Speaker 4: I think they did a good job. I mean, the
[8:17] Speaker 4: real question at this point is how deeply is the
[8:20] Speaker 4: Supreme Court going to get into reviewing this decision. I mean,
[8:24] Speaker 4: the time really is tight here, and you know, they
[8:27] Speaker 4: make extensive findings of discrimination. Is the Supreme Court really
[8:32] Speaker 4: in a position to reject those right now? Though they've
[8:36] Speaker 4: done that in other cases, so I don't want to
[8:39] Speaker 4: say they won't. There was a recent case from Texas
[8:41] Speaker 4: where they basically rejected the lower court's findings about really
[8:45] Speaker 4: much discussion. But they would have to do that. They
[8:48] Speaker 4: would have to say that the finding of discrimination is wrong,
[8:53] Speaker 4: and you know it's the Supreme Court. They could do
[8:55] Speaker 4: it on the shadow docket and the procurium opinion with
[8:58] Speaker 4: long descents. They could. But I do think that the
[9:01] Speaker 4: three judge court went through the process by which Alabama
[9:05] Speaker 4: did this in twenty twenty three, which is the map
[9:09] Speaker 4: that would come into effect and great detail and spend
[9:12] Speaker 4: a lot of time basically making their case for both
[9:15] Speaker 4: intentional discrimination and for trying to comport with CALA. And
[9:19] Speaker 4: so they were seeking to be faithful to what the
[9:22] Speaker 4: Supreme Court did. They were not saying, you know, we're
[9:25] Speaker 4: not going to follow. They actually said that CALA gives
[9:28] Speaker 4: greater way to making sure the Voting Rights Act is
[9:31] Speaker 4: closer to the Constitution. That really shown me the applied
[9:34] Speaker 4: in cases where there's reasonable suspicion of intentional discrimination, and
[9:38] Speaker 4: they make that case. They also spend a lot of
[9:40] Speaker 4: time trying to make the case that this was race
[9:43] Speaker 4: and not party, even though the two were intertwined by
[9:47] Speaker 4: talking about how in Alabama even white Democrats find a
[9:51] Speaker 4: heart to vote for a black candidate. Black Republicans don't
[9:54] Speaker 4: do very well with Republican voters, and how there are
[9:57] Speaker 4: many relatively socially conservative Calabanians but they vote Democratic because
[10:03] Speaker 4: of the party's position on race issues as opposed to
[10:05] Speaker 4: a Publican party. So, I mean, I think it's a struggle.
[10:08] Speaker 4: The Supreme Court standard in CALA saying you have to
[10:10] Speaker 4: say it's race and that party is an incredibly difficult standard.
[10:13] Speaker 4: And we'll see if the Supreme Court finds what this
[10:16] Speaker 4: Court did as persuasive, but they certainly spend some pages
[10:20] Speaker 4: trying to make that case.
[10:21] Speaker 1: The Supreme Court can't make new findings of facts, so
[10:24] Speaker 1: what's the review process?
[10:25] Speaker 4: Then they'd have to decide what their weight is. The
[10:28] Speaker 4: Court went through the blow by blow of the process
[10:31] Speaker 4: by which the legislature in twenty twenty three enacted the map.
[10:35] Speaker 4: It's kind of a funny case because the case comes
[10:37] Speaker 4: up to the Supreme Court based on what the legislature
[10:41] Speaker 4: did just like a couple of weeks ago. That's the
[10:43] Speaker 4: one that basically said we're putting off the primaries. But
[10:46] Speaker 4: it was the Supreme Court, by lifting the injunction, that
[10:49] Speaker 4: put the twenty twenty three map back into effects of
[10:52] Speaker 4: this case is very much about the twenty twenty three map,
[10:54] Speaker 4: and with this Court gives a lot of weight to
[10:56] Speaker 4: the fact that the legislature in twenty twenty three, when
[11:00] Speaker 4: it was told to remedy a vote dilution finding, didn't
[11:04] Speaker 4: really do that. That and the process at which they did,
[11:07] Speaker 4: and the factors they cited and the findings they issued
[11:10] Speaker 4: all smacked of intentional discrimination. So it's kind of weird
[11:14] Speaker 4: because in some ways, it's not really a review of
[11:16] Speaker 4: what the legislature just did. It's a review of what
[11:19] Speaker 4: they did three years ago. And the law has changed
[11:23] Speaker 4: since then with KELA, So it's kind of like putting
[11:25] Speaker 4: yourself back into what things were like then and trying
[11:28] Speaker 4: to figure out was the legislature acting unconstitutionally when it
[11:33] Speaker 4: did what it did in refusing to create the black
[11:36] Speaker 4: majority district that they had been more or less directed
[11:40] Speaker 4: to do.
[11:41] Speaker 1: Okay, Rich, you're going to stay with me. Coming up next,
[11:44] Speaker 1: we're going to discuss a possible easy Supreme Court out
[11:48] Speaker 1: here and the frenzied Republican redistricting in the South. I'm
[11:52] Speaker 1: June Grosso and this is Bloomberg. The Supreme Court's decision
[11:57] Speaker 1: last month severely weakening minority protections under the Voting Rights
[12:02] Speaker 1: Act has set off a new wave of frenzied redistricting
[12:06] Speaker 1: in states across the South, with Republicans scrambling to erase
[12:10] Speaker 1: majority black US House seats before the midterms. The only
[12:15] Speaker 1: Southern state that seems to be bucking the pressure from
[12:18] Speaker 1: President Trump is South Carolina, where the Republican led state
[12:23] Speaker 1: Senate shot down in effort to redraw House districts. South
[12:27] Speaker 1: Carolina Senate Majority Leader Shane Massey said there was no
[12:31] Speaker 1: reason to redraw the state's maps.
[12:34] Speaker 3: We are not Louisiana, we are not Alabama, we are
[12:38] Speaker 3: not Mississippi. Our map is not unconstitutional.
[12:44] Speaker 1: Legal challenges are continuing over redrawn maps in Alabama, Florida, Louisiana, Missouri,
[12:51] Speaker 1: and Tennessee. I've been talking to Columbia Law School professor
[12:54] Speaker 1: Richard Brefault, which let's go back to the Alabama fight.
[12:59] Speaker 1: Alabama official are making an emergency request to the Supreme
[13:03] Speaker 1: Court to reinstate a Republican drawn voting map after a
[13:06] Speaker 1: panel of judges rejected the map for the third time
[13:10] Speaker 1: as the product of intentional discrimination against black voters. Wouldn't
[13:16] Speaker 1: it be an easier road for the justices to turn
[13:18] Speaker 1: down the emergency request rather than reversing the panel's decision
[13:24] Speaker 1: in what would be the first major test of the
[13:26] Speaker 1: new standard that they've set in the Calais decision.
[13:30] Speaker 4: On the other hand, they could, of course stay it,
[13:32] Speaker 4: which they have been known to do. That's effectively what
[13:35] Speaker 4: they did three years ago in the Milligan case. They
[13:38] Speaker 4: stayed the Court's decision striking down the twenty twenty one map,
[13:42] Speaker 4: and then a year and a half later they sustained
[13:44] Speaker 4: the lower corporate after having blocked their decision for a
[13:46] Speaker 4: year and a half. It is not out of the question,
[13:49] Speaker 4: given that history, that they might stay this injunction, allow
[13:54] Speaker 4: the election to go forward on the twenty twenty three map,
[13:57] Speaker 4: and then conceivably this case comes up on the marriage
[14:00] Speaker 4: next year. I mean, I don't want to predict that,
[14:03] Speaker 4: but it's not out of a question that they would
[14:06] Speaker 4: simply stay this, possibly on Percell grounds. Percell is the
[14:10] Speaker 4: one about not acting too close to the election, but
[14:12] Speaker 4: that itself is just a mare's mess, because you know,
[14:15] Speaker 4: that's always kind of figured out what's the status quo,
[14:18] Speaker 4: and is the status quo the twenty twenty three mappers,
[14:22] Speaker 4: the status quo the twenty twenty four map, which this
[14:27] Speaker 4: would put back in.
[14:28] Speaker 1: It's surprisingly complicated, surprisingly complicated and seemingly never ending. But
[14:34] Speaker 1: as far as the per Cell principle is concerned, does
[14:37] Speaker 1: the Supreme Court even consistently follow that? I mean, the
[14:42] Speaker 1: Cala decision came down at the end of April, and
[14:46] Speaker 1: look at the mess it's causing.
[14:48] Speaker 4: It's been very vigorous about it sometimes, but it's not
[14:51] Speaker 4: clear that they think it applies to them. It really
[14:53] Speaker 4: is very much about lower courts. I mean, after all,
[14:56] Speaker 4: Cala itself, as the mess we've seen in Louisiana and Alabama,
[15:00] Speaker 4: cala itself has kind of been consistent with the Perceel principle.
[15:03] Speaker 4: If they were serious about it, they would have said
[15:05] Speaker 4: we're not going to apply it to this year, or
[15:07] Speaker 4: they would have decided much earlier, or they would have
[15:09] Speaker 4: waited to left the election season was over.
[15:11] Speaker 1: And because the Alabama governor has moved the special primaries
[15:15] Speaker 1: to August, does that give the Supreme Court a little
[15:20] Speaker 1: more breathing room?
[15:21] Speaker 4: I guess yeah, But they don't have a lot of time,
[15:23] Speaker 4: I think because in order to have that primary in August,
[15:27] Speaker 4: I mean, a lot of the opinion and a lot
[15:28] Speaker 4: of the trial testimony in this case on this injunction
[15:31] Speaker 4: was about how easy your harden is it going to
[15:33] Speaker 4: be for the election administrators to redraw the lines and
[15:37] Speaker 4: to basically to move around all of the voter information
[15:40] Speaker 4: and make sure voters are in the right place, what
[15:43] Speaker 4: their precincts are, and that they're voting in replace And
[15:46] Speaker 4: normally this is a process that takes several months, but
[15:48] Speaker 4: it would have to be done very soon because the
[15:50] Speaker 4: primary might not be intil August. Candidates have to file
[15:54] Speaker 4: before that. I don't know the details of the Alabama process,
[15:57] Speaker 4: but we're now three to three and a half months
[16:00] Speaker 4: before that primary. Typically candidates need to file before then
[16:03] Speaker 4: and know what districts they're running in, and the election
[16:07] Speaker 4: commissioners the state local election boards need to have that
[16:10] Speaker 4: done asaay. And so I think, actually, if the Court's
[16:14] Speaker 4: going to do something here, I expect they'll be next week.
[16:18] Speaker 4: I mean, they really don't have much time. However, this
[16:20] Speaker 4: election is going to happen. I think the administrators need
[16:23] Speaker 4: to know this already. I mean, they need to know it.
[16:26] Speaker 4: Yesterday they said they need to know it very soon,
[16:28] Speaker 4: and the candidates need to know it so they know
[16:30] Speaker 4: where they're running. So hopefully, I mean what they of
[16:34] Speaker 4: the weeks, I mean, they really should do it over
[16:36] Speaker 4: the weekend, but early next week. And obviously this is
[16:38] Speaker 4: while they're also doing all of their other major cases.
[16:40] Speaker 1: And the three judge panel heard testimony from Alabama's Director
[16:44] Speaker 1: of Elections who acknowledge that when the voter reassignment process
[16:48] Speaker 1: is rushed, voters may accidentally be assigned to the wrong
[16:52] Speaker 1: district and provided the wrong ballot. That's apparently happened before,
[16:57] Speaker 1: and which there's been a lot of criticism of the
[16:59] Speaker 1: Supreme Court, calling the conservative justices out for this Calais decision,
[17:04] Speaker 1: and it was six to three with the Democratic appointees
[17:07] Speaker 1: in descent. And if the Supreme Court reversed this Alabama decision,
[17:13] Speaker 1: wouldn't it open them up to more claims of partisanship.
[17:16] Speaker 4: Yeah, I mean, and again I think maybe less likely
[17:19] Speaker 4: to reverse it versus I think it's stay is more
[17:22] Speaker 4: plausible because in some ways that comes across as well.
[17:25] Speaker 4: I mean, some sense that almost makes sense. We don't
[17:27] Speaker 4: have time to think about this, and it just really
[17:29] Speaker 4: turns on what you think the status quod. I think
[17:31] Speaker 4: it would be hard for them to reverse it on
[17:34] Speaker 4: the shadow docket because there's a lot of substance here.
[17:37] Speaker 4: That doesn't mean they won't. I think it's stay is
[17:39] Speaker 4: more plausible because the state can emphasize, you know, the
[17:43] Speaker 4: fact that these are heart issues, but that there's an
[17:45] Speaker 4: election happening, and that the baseline is the twenty twenty
[17:49] Speaker 4: three map, which the state legislature did adopt, was the
[17:52] Speaker 4: twenty four map was imposed by a quarter Special Master,
[17:56] Speaker 4: and the spring cut has tended to prefer maps that
[17:59] Speaker 4: were adopted by the legislatures, most according post one, so
[18:02] Speaker 4: it would not surprise me if there was a stay.
[18:04] Speaker 4: I think a substant of reversal would be a lot
[18:06] Speaker 4: more work.
[18:07] Speaker 1: Since the Calais decision, Southern states have been in a
[18:11] Speaker 1: sort of frenzy to reshape voting districts to eliminate House
[18:16] Speaker 1: seats held by black representatives. But this week South Carolina
[18:21] Speaker 1: state senators adjourned without drawing up a new map to
[18:25] Speaker 1: eliminate that state's one majority black House seat. Five Republicans
[18:31] Speaker 1: joined Democrats, basically saying it was too late because tens
[18:35] Speaker 1: of thousands of votes had already been cast and what
[18:39] Speaker 1: would they do about that?
[18:40] Speaker 4: But remember had already started in Louisiana when the state
[18:43] Speaker 4: changed it, and I think it was about to start
[18:44] Speaker 4: in Alabama. I do wonder about South Carolina whether one
[18:48] Speaker 4: thing is it may be that it's so late that
[18:50] Speaker 4: Trump can't primary them as he did the Republicans who
[18:53] Speaker 4: didn't go his way in Indiana, and the other, of
[18:56] Speaker 4: course the district is getting rid of was Jim Clyburn.
[18:59] Speaker 4: He's in his eighties. He's an icon of South Carolina.
[19:02] Speaker 4: It maybe that they're kind of banking on him retiring,
[19:06] Speaker 4: or that it may be easier in a future year,
[19:09] Speaker 4: like next year, to get rid of it. They might
[19:11] Speaker 4: change it for twenty twenty eight, and maybe at that
[19:14] Speaker 4: point they would give him kind of a signal to
[19:16] Speaker 4: retire and it would be more of a blind slate.
[19:19] Speaker 4: They may not want to be seen as taking out,
[19:22] Speaker 4: you know, kind of a longstanding important figure in the state.
[19:26] Speaker 4: And then that it might be easier that he retires,
[19:29] Speaker 4: or if they rewrite the map, that might persuade him
[19:31] Speaker 4: to retire. Right now, it's too late.
[19:33] Speaker 1: And in Florida, where there are four seats that Dessanti
[19:37] Speaker 1: is created for Republicans, a judge who's a Dessanti's appointee
[19:42] Speaker 1: rule that the state could continue to use those maps,
[19:45] Speaker 1: even though they have a law against partisan gerrymandering, and
[19:49] Speaker 1: even though a dessanti is aide who drew the new
[19:53] Speaker 1: map said that he had done so based partly on
[19:56] Speaker 1: the part is in breakdown of voters. But still the
[19:59] Speaker 1: judge said there was insufficient evidence of impermissible intent, and
[20:04] Speaker 1: he also cited the Percell principle to keep in place
[20:07] Speaker 1: the map that just was made in May.
[20:11] Speaker 4: That is a problem with the per cell principle is
[20:14] Speaker 4: that it only applies to courts. It doesn't apply to legislatures,
[20:18] Speaker 4: so they can do whatever they want. And indeed, you
[20:20] Speaker 4: see the Alabama three judge courts sort of basically saying, well,
[20:23] Speaker 4: the reason we're doing this is at this point we're
[20:26] Speaker 4: concerned about the disruption caused by the legislatures. So we're
[20:29] Speaker 4: not so concerned about our disruption because for one thing,
[20:31] Speaker 4: also the plaintiffs came to court instantly. The other thing
[20:34] Speaker 4: that I found troubling is that he raised some questions about,
[20:37] Speaker 4: in some sense the constitutionality of the Flora constitutional provision
[20:41] Speaker 4: that Bar's part is in jerrymnnerin because it was enacted
[20:44] Speaker 4: as part of a general provision dealing with districting and
[20:48] Speaker 4: it provided for some attention to race, and he suggested, well,
[20:52] Speaker 4: maybe that's unconstitutional now after Cala, which I don't know
[20:56] Speaker 4: that that's ripe, and he raised that question. If that's
[20:58] Speaker 4: the case, the whole amendment fails. I mean, again, it's
[21:01] Speaker 4: a pretty audacious argument to say that both the tension
[21:05] Speaker 4: to race that the Florida Constitution has as unconstitutionals, but
[21:09] Speaker 4: then to say that the fact that that part might
[21:11] Speaker 4: be taint the entire amendment and so you can't even
[21:14] Speaker 4: enforce the anti partisan part. Leaving aside his factual finding.
[21:18] Speaker 4: Now he is only an intermediate judge. Or could go
[21:20] Speaker 4: to Florida Supreme Court again they had the same timing problem,
[21:24] Speaker 4: and of course again it is a court. I think
[21:26] Speaker 4: all the judges are Republican, and many of them, if
[21:28] Speaker 4: not most of them, were probably appointed by Governor DeSantis.
[21:31] Speaker 1: Yes, all of the judges are Republican, and six out
[21:34] Speaker 1: of seven were appointed by DeSantis, so that looks like
[21:38] Speaker 1: an uphill battle. Finally, once the primaries are over, do
[21:43] Speaker 1: you think candidates that lost their seats because of this
[21:47] Speaker 1: redistricting to eliminate black majority districts have any challenges they
[21:53] Speaker 1: can raise?
[21:54] Speaker 4: I mean, I think these mitigations are all going to
[21:56] Speaker 4: be resolved very soon. Courts are going to stop hearing
[21:59] Speaker 4: them in and it is may going into June. I
[22:02] Speaker 4: don't think that's going to be the issue. I think
[22:04] Speaker 4: whoever wins is going to win. I do think we
[22:07] Speaker 4: may see still more redistricting next year for the one
[22:10] Speaker 4: that was too late. This year. You know, I think Maryland,
[22:13] Speaker 4: where the Democratic legislative leadership declined to get rid of
[22:17] Speaker 4: the remaining republicancy after what happened in the other states
[22:20] Speaker 4: and after Cala, they and I seem inclined to do that.
[22:23] Speaker 4: It's possible that New York will do it. I think
[22:26] Speaker 4: we will see at the end of the current legislative session.
[22:30] Speaker 4: New York would require state cons social amendment, and that
[22:32] Speaker 4: requires action by two legislatures and a voter approval. I
[22:36] Speaker 4: think we will see during New York State legislature pass
[22:39] Speaker 4: several alternative con social amendments, and then next year, which
[22:43] Speaker 4: is the year they really have to make up their minds,
[22:46] Speaker 4: pass one of them as to the voters in twenty
[22:49] Speaker 4: twenty seven, which would allow changing the congressional districts in
[22:52] Speaker 4: New York. Maybe now in Indiana, now that the Trump
[22:55] Speaker 4: has gotten rid of some of the Republicans, they might
[22:57] Speaker 4: come back and get rid of a Democratic district. Maybe
[23:00] Speaker 4: South Collinor will change. So I think we're not done.
[23:03] Speaker 1: And what about in Virginia where the state Supreme Court
[23:07] Speaker 1: there voided a statewide referendum. Can Democrats try for a
[23:11] Speaker 1: redo there?
[23:12] Speaker 4: They might try again. I mean I think it was
[23:14] Speaker 4: a herculean effort in Virginia to get through what they
[23:17] Speaker 4: got through and then to have a court throw it
[23:18] Speaker 4: out on how you would say technicality was a real technicality,
[23:21] Speaker 4: I mean very technical, somewhat similar to the New York
[23:24] Speaker 4: issue about it has to have been done between elections.
[23:28] Speaker 4: It's conceivable, but it was really hard for not to
[23:30] Speaker 4: pass it in the first place. So who knows that
[23:33] Speaker 4: they might try again. Yeah, So I don't think we're
[23:35] Speaker 4: done on this. I think we may hear more from
[23:37] Speaker 4: the Blue States.
[23:38] Speaker 1: This is one area where you can directly see the
[23:41] Speaker 1: effects of Supreme Court decisions over the years weakening protections
[23:46] Speaker 1: of the Voting Rights Act. Thanks so much, rich for
[23:49] Speaker 1: your insights in this complicated area. That's Professor Richard Bruffault
[23:53] Speaker 1: of Columbia Law School coming up next on the Bloomberg
[23:57] Speaker 1: Law Show. For the first time, the FDA allows the
[24:01] Speaker 1: sale of unapproved e cigarettes. I'm June Grosso and you're
[24:05] Speaker 1: listening to Bloomberg. New FDA guidelines allow companies to sell
[24:13] Speaker 1: unapproved electronic cigarettes and nicotine pouches, and that includes the
[24:18] Speaker 1: fruit flavored vapes that are especially appealing to kids. This
[24:22] Speaker 1: breaks with long standing FDA policy requiring scientific verification before
[24:29] Speaker 1: any new products are introduced. Senior officials in the agency's
[24:33] Speaker 1: Tobacco Center were blindsided by the new guidelines, according to
[24:38] Speaker 1: the Associated Press, and earlier this month, the FDA authorized
[24:42] Speaker 1: this sale of mango and blueberry flavored vapes, the first
[24:46] Speaker 1: time fruit flavored vapes have been authorized. At a hearing
[24:50] Speaker 1: last week, Democratic Senator Dick Durbin of Illinois question the
[24:54] Speaker 1: director of the NIH, doctor J. Baticaria, about the FDA's act.
[25:00] Speaker 3: Do you realize that the announced policy of this administration
[25:03] Speaker 3: within the last two weeks is going to make it
[25:06] Speaker 3: easier for these companies to peddle fruit Monster vaping, Candy
[25:10] Speaker 3: King vaping, Raspberry Slushy bake vaping to our children and
[25:15] Speaker 3: junior high in high school.
[25:17] Speaker 2: Now, Senator, I think that vaping for kids is a
[25:20] Speaker 2: dangerous thing, and I think that is the role of
[25:22] Speaker 2: the NIH isn't to set policy. It's to do research
[25:26] Speaker 2: to document the ways to address these health problems.
[25:29] Speaker 3: We've conceded the obvious. They're peddling flavors that attract children,
[25:35] Speaker 3: children who don't have the maturity to make the decision,
[25:38] Speaker 3: and they become addicted to a product which is dangerous
[25:40] Speaker 3: to them.
[25:41] Speaker 1: Of the more than one point six million middle and
[25:44] Speaker 1: high school students who currently vape, nearly ninety percent use
[25:48] Speaker 1: flavored east cigarettes, with fruit flavors being the most popular.
[25:53] Speaker 1: My guest is healthcare attorney Harry Nelson, a partner at
[25:57] Speaker 1: Leech Tishman Nelson Hardiman, tell us about these new rules.
[26:02] Speaker 5: So, we have this law, that Tobacco Control Act, which
[26:06] Speaker 5: requires that new tobacco products can't be legally marketed without
[26:10] Speaker 5: pre market authorization. And the law gives the FDA the
[26:13] Speaker 5: power to deny this pre market authorization unless there's a
[26:17] Speaker 5: showing that the product would appropriately protect the public health.
[26:21] Speaker 5: And so what's happened now is that the FDA put
[26:24] Speaker 5: out a guidance statement that it's not going to prioritize
[26:28] Speaker 5: enforcement against certain unauthorized e cigarette products and nicotine oral
[26:33] Speaker 5: nicotine pouch products, Meaning the government basically said, even though
[26:36] Speaker 5: these products are not legally on the market, the government
[26:40] Speaker 5: is not going to go after them.
[26:43] Speaker 1: And this breaks with the FDA policy of requiring scientific verification.
[26:49] Speaker 5: Yeah, this is definitely a relaxation of the federal policy
[26:53] Speaker 5: of being tough on tobacco products and being concerned about
[26:58] Speaker 5: public health, and it's basically the FDA saying this is
[27:01] Speaker 5: a low priority and even though what you're doing is
[27:05] Speaker 5: not legal, let's call it at best grain market, these
[27:08] Speaker 5: products can stay on the shelves the stores even though
[27:10] Speaker 5: they're still in scientific review, even though the FDA has
[27:13] Speaker 5: not ruled on them. And this is really a flip
[27:16] Speaker 5: from where we were, you know, just a year and
[27:18] Speaker 5: a half ago, where the FDA rejected the idea that
[27:21] Speaker 5: having an application on file was sufficient to create a
[27:25] Speaker 5: safe harbor to allow these products to be out there.
[27:27] Speaker 5: So previously the FDA would not allow these products to
[27:30] Speaker 5: be on shelves, And now it sounds like the enforcement
[27:33] Speaker 5: climate has really completely gone one hundred and eighty degrees
[27:36] Speaker 5: and the FDA is going to basically soften its position
[27:40] Speaker 5: and allow a new lane kind of for grain market
[27:43] Speaker 5: tobacco products.
[27:44] Speaker 1: I mean, is this odd timing because it was posted
[27:48] Speaker 1: just days before the former FDA commissioner resigned.
[27:52] Speaker 5: Yeah, it definitely seems like this kind of reflects a
[27:56] Speaker 5: little bit of the chaos that is going on in
[28:00] Speaker 5: the FDA. A lot of the reporting around the story
[28:02] Speaker 5: has emphasized that the senior leadership and the staff within
[28:06] Speaker 5: the Tobacco Center were basically blindsided, and that this appeared
[28:11] Speaker 5: just before Commissioner Maccari resigned, So there seems to be
[28:16] Speaker 5: a lot of upheaval and a little bit of chaos
[28:19] Speaker 5: at the FDA, and certainly nobody who's in the tobacco
[28:23] Speaker 5: regulation group at the FDA saw this coming or seems
[28:26] Speaker 5: to be supportive of this new relax in action.
[28:29] Speaker 1: So the FDA spokesperson said, this approach strengthen's protections against
[28:34] Speaker 1: youth nicotine addiction while supporting evidence based alternatives for adult
[28:39] Speaker 1: smoke or seeking to move away from combustible tobacco products whatever.
[28:44] Speaker 5: That it's interesting. Certainly even the folks in the administration
[28:47] Speaker 5: who are supporting the relaxation of tobacco are trying to
[28:51] Speaker 5: emphasize that this is for adult products and that they
[28:53] Speaker 5: are not loosening standards on tobacco products that are being
[28:57] Speaker 5: used by minors. So they're trying to, you know, still
[29:02] Speaker 5: reserve the right to be more aggressive in enforcement against
[29:06] Speaker 5: products that appeal to teens and to focus on just
[29:09] Speaker 5: letting adults have more leeway and just not investing enforcement
[29:14] Speaker 5: dollars into this product market.
[29:17] Speaker 1: Hasn't the FDA resisted approving fruit flavored or candy flavored
[29:23] Speaker 1: vapes because those are the flavors that attract kids. I mean,
[29:27] Speaker 1: the Supreme Court even heard a case and upheld the
[29:30] Speaker 1: agency's authority to deny marketing applications for fruit and dessert
[29:35] Speaker 1: flavored e cigarettes.
[29:37] Speaker 5: So why now, right by the way, there's something like
[29:40] Speaker 5: over forty e cigarette products and already twenty of these
[29:43] Speaker 5: like flavored pouch varieties out there. I think the FDA
[29:47] Speaker 5: has been trying to walk a line, and I think
[29:49] Speaker 5: the line shifted a little bit this week. But I
[29:51] Speaker 5: think even now, you know, the administration's position is that
[29:55] Speaker 5: protecting teen smokers from products that are clearly appealing to
[29:59] Speaker 5: ki is still a problem and still something they're going
[30:02] Speaker 5: to pursue. But the real message that they're trying to emphasize,
[30:05] Speaker 5: I think was loosening the rules on adult tobacco products.
[30:09] Speaker 1: The number of underaged vapors has gone down still, about
[30:13] Speaker 1: one point sixty three million middle and high school students
[30:17] Speaker 1: currently vape. That's a decrease from two point one three
[30:22] Speaker 1: million in twenty twenty three. I don't know if that
[30:25] Speaker 1: plays any part in this.
[30:27] Speaker 5: A lot of the efforts of the last couple of
[30:29] Speaker 5: years have definitely reduced use, particularly in and around schools.
[30:34] Speaker 5: There was a lot of attention obviously to you know,
[30:37] Speaker 5: the nicodeine addiction risk, the potential effect on brain development
[30:41] Speaker 5: of like anxiety and add ADHD mood issues coming up
[30:45] Speaker 5: from these, and just the kind of significant marketing, and
[30:48] Speaker 5: we saw a lot of schools cracked down on this.
[30:51] Speaker 5: We saw like social media, you know, sort of really
[30:54] Speaker 5: tamping down. So it would not surprise me if there
[30:57] Speaker 5: has been a reduction, although I think there's still is
[31:00] Speaker 5: clearly a significant use of flavored disposable vapes among teens,
[31:04] Speaker 5: and still a problem of social networks being used to
[31:08] Speaker 5: get kids who are too young getting them vapes. There
[31:12] Speaker 5: still is a problem of illegal retail sales happening, and
[31:15] Speaker 5: I think, honestly at one of the big pieces of
[31:17] Speaker 5: the story is that we're going to see states, particularly
[31:20] Speaker 5: filling the void, you know, as we've seen in other
[31:23] Speaker 5: areas of federal enforcement, when the federal government sort of
[31:26] Speaker 5: steps back a little bit, We're going to see many
[31:29] Speaker 5: states kind of step up and crack down much more
[31:32] Speaker 5: on this.
[31:33] Speaker 1: Harry, I'm wondering if these new rules have anything to
[31:36] Speaker 1: do with Trump, who when he came to office, promised
[31:40] Speaker 1: that he would save the vaping industry, and big tobacco
[31:45] Speaker 1: companies have made contributions to Trump and his causes.
[31:50] Speaker 5: There's no question that this is a case where the
[31:52] Speaker 5: federal government is sort of throwing a bone to the
[31:55] Speaker 5: tobacco industry that they're really giving them a little bit
[31:59] Speaker 5: of room here to ramp up sales and signaling kind
[32:03] Speaker 5: of a more permissive environment. So I do think this
[32:06] Speaker 5: is clearly a big win for big tobacco and a
[32:10] Speaker 5: setback for everybody who've invested in, you know, public health
[32:13] Speaker 5: sort of anti tobacco efforts. So you know, particularly companies
[32:16] Speaker 5: that have applications pending are going to benefit by being
[32:20] Speaker 5: able to promote those products more. They don't have to
[32:23] Speaker 5: be as nervous about the unapproved status of their applications.
[32:27] Speaker 5: So those are going to be the biggest winners within
[32:29] Speaker 5: the tobacco industry.
[32:30] Speaker 1: Because I can't think of any reason to do this
[32:34] Speaker 1: as far as public health is concerned.
[32:37] Speaker 5: You know, I think this is a little bit of
[32:39] Speaker 5: a signal that the federal government is kind of moving
[32:43] Speaker 5: out of, I don't know what you want to call it,
[32:45] Speaker 5: the nanny state. A lot of the public health protections
[32:49] Speaker 5: where we've seen federal stepping back have been about individual choice,
[32:54] Speaker 5: even where it's not consistent with public health.
[32:56] Speaker 3: Right.
[32:56] Speaker 5: We've seen that with like federal rollbacks on environmental and
[33:00] Speaker 5: climate regulation.
[33:01] Speaker 3: Right.
[33:01] Speaker 5: I think we see that the states are getting more
[33:04] Speaker 5: aggressive and then a lot of directions the federal government's
[33:06] Speaker 5: moving in the opposite direction. And I think it partly
[33:09] Speaker 5: is about some skepticism about broad federal administrative power. And
[33:14] Speaker 5: when people perfectarly on the right are talking about smaller government,
[33:17] Speaker 5: part of what that means is less activist laws limiting commerce.
[33:22] Speaker 4: Right.
[33:23] Speaker 5: I think this is one of those examples.
[33:25] Speaker 1: Harry. Let's turn to another issue around FDA approval and
[33:28] Speaker 1: the authority of the FDA concerning MiFi pristone, the most
[33:33] Speaker 1: widely used abortion pill, and about two weeks ago, a
[33:37] Speaker 1: divided Supreme Court continued to allow mifipristone to be dispensed
[33:41] Speaker 1: by mail. But the fight over MiFi pristone is going
[33:45] Speaker 1: to come back to the court, isn't it.
[33:47] Speaker 5: I mean, my read on the Supreme Court decision is
[33:51] Speaker 5: that clearly the Supreme Court does not want to revisit this,
[33:56] Speaker 5: but clearly, you know, the states remain very active involved
[34:00] Speaker 5: in it. And so this is definitely not going to
[34:02] Speaker 5: be the last case where the Supreme Court is dealing
[34:05] Speaker 5: with mephipristone. The states are are still going to keep
[34:08] Speaker 5: arguing that the FDA is exceeding its authority under the Food,
[34:11] Speaker 5: Drug and Cosmetic Act, the same exact claim that was
[34:14] Speaker 5: made in this case, that the FDA improperly loosened the
[34:18] Speaker 5: risk Evaluation and Mitigation Studies REMS restrictions, And we're going
[34:22] Speaker 5: to see you know, continued fights right about how much
[34:27] Speaker 5: deference the courts should give the FDA on its scientific judgment.
[34:30] Speaker 5: And we're still going to see activist states, you know,
[34:34] Speaker 5: abortion restrictive states arguing that they have the right so
[34:37] Speaker 5: second guests the FDA, and that they can override kind
[34:41] Speaker 5: of a national drug approval based on their state policy.
[34:43] Speaker 5: So we're still in this environment where the states are
[34:46] Speaker 5: increasingly trying to compete in their different you know, regulatory
[34:51] Speaker 5: frameworks for this, and we're going to continue to see
[34:54] Speaker 5: a number of states trying to be more restrictive, blocking mailing,
[34:58] Speaker 5: blocking teleealth access, and this issue is not going anywhere.
[35:02] Speaker 5: And you know, I think for people on the reproductive
[35:05] Speaker 5: rights protection side of this fight. I think it is
[35:08] Speaker 5: good news that the Supreme Court is at least holding
[35:11] Speaker 5: true to what it said when it repealed re Vwad,
[35:14] Speaker 5: which was that it really wanted to send this issue
[35:16] Speaker 5: back to the States and wasn't going to, you know,
[35:19] Speaker 5: to intervene to support broader restriction. So this is at
[35:23] Speaker 5: least one way in which the Supreme Court has lived
[35:25] Speaker 5: up to that signal that it gave. And so I
[35:27] Speaker 5: do think it's a positive sign that the Supreme Court
[35:30] Speaker 5: is not wanting to get in the way of the FDA,
[35:34] Speaker 5: not wanting to get in the way of pharmacies.
[35:36] Speaker 1: And how many studies were done showing that mifipristone is safe,
[35:41] Speaker 1: but now the FDA is doing a new study, and
[35:45] Speaker 1: Bloomberg News reported in December that the FDA was slow
[35:49] Speaker 1: walking its safety study until after the midterm elections, although
[35:54] Speaker 1: Health and Human Services deny the report.
[35:58] Speaker 5: Yeah, it's very interesting. This is clearly a place where
[36:00] Speaker 5: the administration is not in a hurry to create political upheaval. Obviously,
[36:06] Speaker 5: this issue has been such a galvanizing one in past
[36:09] Speaker 5: election cycles. You know, I think a lot of people
[36:11] Speaker 5: are thought that this administration would reverse on the safety
[36:15] Speaker 5: and effectiveness of mefipristone. It's been, by the way, twenty
[36:18] Speaker 5: six years since clinical review, and really there is no
[36:22] Speaker 5: record of serious adverse events. So you know, the FDA
[36:25] Speaker 5: is clearly under competing political pressures, and it's clearly a
[36:29] Speaker 5: much more complicated landscape than a lot of people anticipated.
[36:33] Speaker 1: I guess we'll find out more about that after the midterms.
[36:37] Speaker 1: Thanks so much for joining me, Harry. That's healthcare attorney
[36:40] Speaker 1: Harry Nelson, and that's it for this edition of The
[36:43] Speaker 1: Bloomberg Law Show. Remember you can always get the latest
[36:46] Speaker 1: legal news on our Bloomberg Law Podcast. You can find
[36:49] Speaker 1: them on Apple Podcasts, Spotify, and at www dot Bloomberg
[36:54] Speaker 1: dot com, slash podcast slash Law, and remember to tune
[36:57] Speaker 1: into The Bloomberg Law Show every week at ten pm
[37:01] Speaker 1: Wall Street Time. I'm June Grosso, and you're listening to
[37:04] Speaker 1: Bloomberg

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