OPENING ARGUMENTS EPISODE # 308
Thomas: Hello and welcome to Opening Arguments, this is episode 308! I’m your host Thomas Smith, that over there is Andrew Torrez! How are you doin’, Andrew?
Andrew: I’m doing fantastic, Thomas! I am slightly more self-conscious now that I know each and every word I say to you is about to be transcribed.
Thomas: Oh, yeah!
Andrew: But, no, I’m super excited, how ‘bout you?
Thomas: [Laughing] I was I was just instantly thinking of how to prank our transcriber, but then I realized that ultimately that probably gets back to us somehow.
Thomas: What’s that villain we always use, Mr. Mxyzptlk or whatever?
Thomas: What’s that guy? How’s Mr. Mxyzptlk doing?
Thomas: Mr. Mxyzptlk, Mr. Mxyptlk [Laughing]
Andrew: Way to get things started on the right foot.
Thomas: In other news, we are looking for a new transcription service.
Thomas: This just in. Mr. Mxyptlk was the one who did it! [Laughing]
Thomas: Heather’s gonna murder me.
Andrew: No, serious thank you to Heather Loveridge who has contributed to the OA Wiki in the past and who we have hired to transcribe episodes. This is something I’ve really wanted-
Thomas: I think she’s doing a supercalifragilisticexpialidocious job!
Thomas: I gotta say, I think she is!
Andrew: Just remember, Heather, I’m sticking up for you here! No, this is something I’ve wanted to do for a really, really long time, my cousin is almost entirely deaf so there’s obviously the accessibility goal in terms of being able to reach folks who can’t listen to the show and, you know, look, we’re always trying to balance that bringing you more and more content with folks- not everybody has a 97-minute commute everyday so I’m really, really excited and I think that this is the beginning of, hopefully, some great ways of continuing to reach out and spread OA to everybody who’s not listening to us yet, or not reading us yet, which- what’s wrong with you people? Get out there, share the show!
Thomas: Alright, I’m excited too! Sorry, Heather you can feel free to add a [Clownhorn] or two to the invoice, there. [Laughing] Do we have another update from you?
Andrew: Yeah, a couple more things! I want to link in the show notes – we don’t have time to break it down, it’s just an interview anyway – but the world’s foremost U.S. Constitutional law expert Laurence Tribe is now firmly on the side of Optimist Prime! He gave a really interesting interview in the Raw Story in which he describes what he thinks is going to be the inflection point at Yodel Mountain. He thinks that if the courts move quickly enough so that by this fall formal Whitehouse counsel Don McGhan will have testified to the fact that Donald Trump ordered him to fire Mueller and then ordered him to lie about it, people will wake up to this crisis. [Chuckles] That’s – I hope. So add another Optimist to the ranks!
Thomas: Oh, I see, since you lost so badly last week you’re just trying to-
Andrew: [Laughs] Yeah.
Thomas: Gotcha, okay, fair enough, yeah that’s fine!
Andrew: I’m petitioning for a recount and I’ve hired Laurence Tribe as my attorney.
Thomas: [Laughs] Well, that’s a strong move!
Thomas: That may be what does it!
Andrew: I could do worse!
Andrew: And then one more, I’m really, really excited about this. Look, we even have a recurring Patreon name that says “you need to talk about Stormy Daniels again.”
Andrew: Next week, we’re gonna talk about Stormy Daniels again.
Thomas: ‘Bout time!
Andrew: Because there’s another key piece in all of this that relates to Stormy Daniels. Stay tuned for that.
Thomas: Oh, so we’re gonna get some news? It’s not just like “here’s this old thing that should have been impeachable that should have happened” there’s more? There’s an update?
Andrew: No, brand new news-
Andrew: -that still relates to Stormy Daniels, you won’t wanna miss it.
Thomas: Well, you don’t want to miss Tuesday’s episode, I’m excited for that, I can’t wait! I get to hear it before you guys, that’s cool! [Laughs] But you all will enjoy Tuesday!
Andrew: Me too!
Thomas: [Laughing] Wow, lots of privilege we have here! Alright, let’s get to our episode. Wow, lots to cover, this is an ambitious one! I see everything on the whiteboard here, Andrew, and I think this could be a 90, 100 minute episode. We’ll see, we’ll see how it goes!
Andrew: I wanna take the under!
Thomas: Oh, okay!
Andrew: You’re saying 90 to 100 minutes and on Price Is Right rules-
Thomas: That commute just-
Andrew: I’m gonna go with $1.00.
Thomas: That commute just keeps getting longer, people are just driving around in circles. “When is this OA episode gonna be over?”
Andrew: [Laughing] OA, the good we’re doing for humanity in educating is offset by our carbon footprint! [Laughs]
Thomas: By our carbon emissions? Yeah! [Laughs]
Thomas: Alright, well, we’ve got a lot on the apportionment episode that we did, that was really, really scary and you shouldn’t have done it ‘cuz now – you put it out in the world and the bad people will capitalize on it. But that’s okay, we had to do it, someone else was gonna figure it out. Lots of follow-up questions on that. Michael on Twitter asks “If the Democrats control the House, have 50 votes, win the Presidency and do away with the filibuster can they legislate their way out of this problem?”
Andrew: And the answer to that is no. No, they can’t.
Thomas: Didn’t you say the date was like the day before inauguration?
Andrew: Yup, so the transmittal occurs when the House of Representatives, when the 117th House convenes, that will be January 3rd and the new President will not be inaugurated until January 20th, so no.
Thomas: There’s no undo? There’s no takes-backsies?
Andrew: There’s no undo, yeah.
Thomas: What about – ‘cuz you were saying that states could maybe make a law that gives time, you know? Like a review period? So there’s no Federal equivalent that could be done?
Andrew: So, right. There’s no Federal equivalent and I think some of the follow-up questions may touch on that.
Thomas: Oh, okay.
Andrew: But the first one, just in terms of if we win big in 2020 does that make this problem go away? It does not.
Thomas: Wow. Okay, so we’ll keep going here. Ian on Twitter asks, “Could a Democratically-controlled House refuse or delay accepting the census data?”
Andrew: And the answer to that is also no, and this comes – now we’re gonna kind of delve a little bit more deeply into both the language of 2 U.S.C. § 2a and also Franklin v. Massachusetts, that’s the statute and the case, respectively, that we discussed last episode. Under Franklin the right attaches when the President transmits the statement, right? So, here’s the specific language, it says, “In this case the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President’s statement to Congress, not the Secretary’s report to the President,” so as soon as the President transmits it to Congress, that’s when the rights potentially attach at the State level. Then the question is, could the Democratically controlled House just, you know, delay in terms of accepting the statement? That’s subsection “b” and subsection “b” says “It shall be the duty of the Clerk of the House of Representatives within fifteen calendar days after the receipt of such statement to send to the executive of each State a certificate of the number of Representatives to which such State is entitled under this section.” And, again, do the math, three plus fifteen still gets you to January 18th, it does not get you to a new President. And then the section specifically says, “In the case of a vacancy in the office of Clerk, or of his absence or inability to discharge this duty, then such duty shall devolve upon the Sergeant at Arms of the House of Representatives.” So, in other words, Congress very clearly in legislating 2 U.S.C. § 2a contemplated potential delay and said, “no, no, this is it.”
Thomas: Alright, well we have yet another follow-up for you, Andrew. Jordan Kahn on Twitter, also – Twitter really went nuts with this one, I guess.
Thomas: Sounds like. That’s good. Jordan asks, once again [Laughs]
Andrew: Right, right.
Thomas: These are all premised on, I guess we all realize that if the Democrats-
Andrew: Notice this predicate, yeah.
Thomas: -don’t take the Presidency and the Senate then we’re just going home? So, once again, “if the Democrats retake the Whitehouse and the Senate, could they amend 2 U.S.C. § 2 after Warren takes office to correct the apportionment?”
Andrew: Yeah, and this? I really liked this question because this is Jordan kind of digging into the substance of 2 U.S.C. § 2a subsection “b,” but the answer’s still no. What Jordan is reading is, that subsection “b” says, “Each State shall be entitled, in the Eighty-third Congress and in each Congress thereafter until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in the statement as required by subsection (a).” So Jordan read that and said, well it says “subsequent statute,” couldn’t we just pass a subsequent statute and correct it? The problem is that “subsequent statute” modifies reapportionment. So in other words, Democrats could absolutely amend or change a new equivalent to replace 2 U.S.C. § 2a but that would apply prospectively to the next census, to the next apportionment in 2030.
Andrew: It wouldn’t apply retroactively. So, I get that it says “you can have another statute” but that “have another statute” wouldn’t displace the rights that begin to inhere as soon as that statement is transmitted.
Thomas: Well this… sucks. [Laughs] So far I’m getting a strong “no” from every “one weird trick” to fix this problem.
Thomas: I guess we’ll try one more time. We’ll try one more time with another follow-up. Nick Bogos via email asks- that’s so sophisticated with email instead of Twitter!
Andrew: Right? [Laughs]
Thomas: [Laughs] “Could a Democratically controlled House simply refuse to convene until after newly inaugurated President Warren withdraws an apportionment report Trump tries to submit?” Wow! That’s – I struggled with that one because I started thinking about it as I was saying it, and that sounds genius! Is that one weird trick that could work?
Andrew: It sounds genius, but the answer’s still gonna be no.
Andrew: Yup, there are two checks here that will come into play. The first is the 20th Amendment to the Constitution, which amends Article 1 Section 4 which says “Congress shall assemble at least once in every year and such meeting shall be on the 3rd of January unless they shall, by law, appoint a different day.” So, that’s kind of your first check, and, again, in the age of Trump-
Thomas: Can they by law appoint a different day?!
Andrew: Well, it would have to be a law, right?
Thomas: But they could pass it now for – and then not meet until-
Andrew: Yeah, they could pass it now but then-
Andrew: Trump would veto.
Thomas: Oh, yeah true. Ugh.
Andrew: It’s gotta be a law, right?
Andrew: So, that’s the first one. You might say-
Thomas: I was thinking it was like a House rule or something.
Andrew: Right, yeah, it’s not a House rule, it must be by law. Then the second check, even if you could get around – let’s say, okay, you assume (probably fancifully) that the Supreme Court would not issue a Writ of Mandamus or otherwise require the House to convene, that seems to place an awful lot of trust in Chief Justice John Roberts, but hey, maybe you have that. So, assume that you think you get over that check, then you would have the problem that Article 2 of the Constitution gives the President the power to convene a session of Congress, quote, “in an emergency,” end of quote. And there is a 70-year old – 72-year old Office of Legal Counsel memo, 1 O.L.C. 140 that Nick sent to us, I wanna give him credit for this, he said, “hey would this apply?” and it absolutely would apply. In other words, if this were to happen then Bill Barr would advise Donald Trump to just convene a session of Congress and I believe that that session that he would convene would then be recognized by the Supreme Court as a valid exercise of the President’s Article 2 powers to summon congress. That’s never – sorry, I should not say it’s never happened – the last time that the President convened an emergency session of Congress was Harry Truman in 1948.
Andrew: But, that’s – so those two things are out there, and the way that I put all of this together – and, again, I don’t wanna lead off this section by saying “there’s nothing we can do about apportionment and we’re going to live in an undemocratic Russian puppet state for the rest of our lives,” that’s not what I’m trying to say. What I’m trying to say is that this will be tied up in litigation in 2021, that I don’t see a way prospectively at the Federal level that we can stop it. What we can do is have grassroots activism at the State level, right? Because every predicate answer that I gave to these questions depended upon the fact that the Federal government couldn’t do a thing because the rights to the States attach at the point at which the President transmits the apportionment letter to the House of Representatives. A State does not have to act on those rights. A State could very, very well say, “hey, in the interest of prudence, rather than race forward in the next three minutes we’re just gonna wait for the new President to come in and confirm and make sure everything is okay.”
Thomas: But if that happens on State-by-State basis how would that even be practical? ‘Cuz if-
Andrew: Yeah, again, I don’t know because we’re in uncharted territory.
Thomas: Here, let me finish the question just in case everybody else is not-
Andrew: I’m sorry.
Thomas: No, it’s alright!
Andrew: I didn’t mean to interrupt!
Thomas: Yeah, I’m tired of you interrupting! [Laughs] No, I just want to make sure so people know what I think we’re both thinking, or maybe you’ll tell me this is stupid, but assuming the census is figuring out, and apportionment is figuring out how many seats we’re all gonna have, obviously that’s kind of dependent on the whole. You can’t just be like, “well, uh, California you figure out your seats and then these other States, they’ll figure out their seats.” The sum total does matter, right? You can’t just have any State willy-nilly not going along with the whole plan, so how would that work?
Andrew: And the answer – and that was exactly what I was thinking, and I’m sorry [Laughs] I honestly didn’t mean to cut you off!
Thomas: No, no! [Laughs] Just wanted to give Heather more work, that’s all. Mr. Mxyzptlk.
Andrew: The answer there is that those elections won’t take place until 2022, right? So even at the glacial pace at which the U.S. Court system moves it’s – I would be very, very comfortable going in to a Federal Court and saying, “hey, look, okay, we’ve gotta figure this out and it’s going to be confusing, but at least we have time to figure this out.”
Thomas: Well, but-
Andrew: We don’t have an election tomorrow.
Thomas: Maybe I’m not understanding, ‘cuz it seems to me that it’s either one way or the other, right? If you’re going to do – if Trump and his cronies, or more like Bill Barr and his cronies Trump, I guess – the people who actually figure stuff out, ‘cuz he can’t-
Thomas: If they decide, here’s what we’re doing, we’re taking all these seats from California and other blue states because it looks like the wiggle room within this apportionment thingy lets us do this scheme, so here’s what we’re doing, you hand the report, you’re on your way out of the office but you hand that report, bam, it’s binding! I don’t get how – you’re saying there’s nothing we can do and despite all of our Twitter and emailers best efforts there’s nothing we can do to save our Democracy, but then if a State says “no” then somehow that’ll be okay? Then who makes the decision on which methodology? Because it seems like what we’re gonna argue about is a methodology for how many seats everybody gets, right?
Andrew: So, yes. So here’s the answer to that question – it’s a really really really good question. If the States do nothing then the standard that the Supreme Court is going to use – so let’s see how this is gonna play out, right? What’s gonna play out is there’s an apportionment letter, it’s going to transfer 5 seats from California to Alabama, and then what will happen is the State of California, its Attorney General, voters in the State of California, will file a Federal lawsuit seeking to invalidate that transfer, and that will be adjudicated under the exact same standards as Franklin v. Massachusetts. That’s what Massachusetts did after the 1990 census, they said “look, we lost an electoral vote, it’s gonna take away a Congressional district,” they did it for this pretextual reason of trying to give votes to soldiers overseas but they really knew it was gonna take away a vote from, you know, a reliably Democratic State and “we want that vote and we want that district back,” and what the Supreme Court said there was “okay, you have a cognizable claim if the President acts in transmitting the apportionment letter to Congress in a way that violates the Constitution.”
Andrew: Now, they don’t go exactly through what that is, right? But we talked about that in broad strokes last episode, right? Giving 384 Congressional districts to the State of Alabama would obviously trigger, you know, an equal protection violation, even in this Supreme Court. But it’s crucial to realize that the standard that was applied to the Department of Commerce in the census case was not proving that there’s a Constitutional right, but was in fact a much lower standard of “was this adequately supported by the evidence? Was there an articulable reason that was given?” and the narrow victory [Laughs] right? Remember that was a 5-4 even with the Hofeller evidence, the narrow victory we got was not that it’s inappropriate for Commerce to want to know if people are citizens or not, but rather that the answer that they were giving in public seemed to be pretextual and by “seemed to be pretextual” we mean we had overwhelming evidence that it was pretextual. And the standard is going to be higher than that for proving a Constitutional rights violation, so what I’m trying to do now in terms of spreading this out and getting awareness is to do two things: number one, to tee up for that Supreme Court fight so that we have as much in the record as possible to try and demonstrate that using an apportionment method based on citizenship is a Constitutional rights violation. That’s gonna be hard. And then number two, the question is, is there anything we can do to stave off that court fight or otherwise put it in a better position? And most of the questions that we got that suggested “well hey, maybe there won’t be a court fight if we do X?” I think the answer to that is no. I mean, you heard that. I do think the most fruitful area is if you can somehow delay all of the states receiving all of the data, then the scenario you described comes into play, which is there’s no way for Alabama to say “yup, we recognize that we have extra representatives and they come from California” and then three weeks later for California to be like, “okay, well the revised tally came out and we recognize that we didn’t lose any seats.” You can’t hold those two positions simultaneously, again, that’s gonna go to the Supreme Court, but that adjudication-
Thomas: Okay, so we just need a State, at least one State to complain about this so the Supreme Court has to decide it, but it’s not like States can just fix it on their own or anything, or “opt out” of the [Laughs]-
Andrew: Correct, yeah! That’s right, that’s right. But, look, the question is on what grounds and with what supporting evidence will a very right-wing Supreme Court take up this case?
Andrew: And that’s-
Thomas: I dunno, it all depends on how far they go, I guess.
Andrew: That’s exactly right! And so, you know, maybe I shouldn’t say the truly evil plan out loud, right? [Laughs]
Thomas: Yeah. That’s why I was saying, we’d almost be saved if they try to be too evil because it’ll actually be unconstitutional.
Thomas: But, we’re kinda out of luck.
Andrew: Because, again, right, that will trigger the “shame John Roberts” right?
Thomas: Yeah. [Sighs] Alright, well on that depressing note I think we all put our heads together and still couldn’t find a way around this mess that Andrew got is into so we’re screwed! [Chuckles] Some Optimist Prime he is!
[Commercial – netsuite.com/oa for a free guide “Seven Key Strategies to Grow Your Profits”]
Thomas: [Laughing] Let’s move on to our next segment about the faithless electors decision, I guess, that I’ve just seen fresh-
Thomas: Hot off the presses, so I’ve only seen the headlines, but I’m seeing people buzzing about it, what’s going on with this faithless electors decision?
Andrew: Okay, so I love the fact that we’re gonna talk about this decision, because this is one of my absolutely favorite things to do! So let me put you on the spot. Thomas, should electors be able to be faithless? And by “faithless” we mean-
Andrew: The state comes down, you know, the popular vote in the State is for Donald Trump but one of the electors says “I’m gonna vote for Hillary Clinton instead.”
Thomas: So, a couple things, first this did happen, I know that there was a faithless elector somewhere that didn’t, that voted for somebody else, because I remember researching Trump’s election victory and the electoral votes are a little off because there was one faithless elector – unless that was like some specific rule to that State that doesn’t apply everywhere. I mean, obviously there’s two side to every Schwartz as I often say, and on one hand you would think – and this is what everybody talked about going into 2016 after we kinda knew that Trump won – if there was any point to this nonsense electoral college system, if there was any point to it besides keeping slavery going in the 1800s or whatever, it would be to prevent Trump, so you would think, if there’s literally any reason to have it, the slightest reason, it would be to not elect Trump President and therefore you would want them to be able to be faithless electors and just elect whoever. However, the obvious downside of that is, Elizabeth Warren wins and somehow they decide not to do it, but isn’t it just kinda dependent on partisan lean anyway? So I dunno. So that’s my answer, I guess maybe they should be allowed to? But I don’t know that they’re going to or what, I don’t know. Go ahead.
Andrew: I could not have more perfectly scripted that answer, right?
Andrew: You don’t know, seriously! You’ve hit on every single thing that I wanna talk about on this segment. So let’s start with your dilemma. Let me give you a more politically expedient answer, and this will be out of my mouth not out of yours-
Andrew: Which is, I would like for there to be a faithless elector provision if Trump wins again but it’s super close and we can keep him from being re-elected, but I would hate for there to be a faithless elector provision-
Andrew: -if Elizabeth Warren wins and it’s super close.
Andrew: And, you know, the Koch Brothers fund a billion-dollar campaign to convince two electors to switch their vote and we get Trump again, right?
Andrew: So let’s be honest about that. That position is legal realism, I would like the rule to apply on the basis of the outcome that I want it to reach. And the problem with this kind of cynical approach to the law is if you feel this way and I feel this way then you can bet that Neil Gorsuch feels this way and you can really bet that Brett Kavanaugh feels this way, right? We know what will happen if the Supreme Court is tasked to create a rule where one rule leads to Trump being re-elected and the other rule leads to his Democratic opponent being elected. We know what the Supreme Court will do, because the Supreme Court has already done that. We started this show, the first four episodes are all about Bush v. Gore and one of the takeaways, one of the reasons we started the show with that episode is there is no principled way to defend Bush v. Gore.
Andrew: Go back and listen to those first four episodes if you haven’t listened to it, right? If the rules are not set in advance and this Supreme Court is called upon to decide what the rules are, I’m as big a believer that the rule of law means a “thing” as anyone, there’s no doubt in my mind, they’ll pick the rule that makes Trump President again. So what I love about this lawsuit is it is an effort to lock in the rules now, in advance. So let me give you a little bit of background – and if you lock in the rules before you know, are they gonna hurt or help your candidate, then at least we know what the rules are, right? At least we minimize the chance of another Bush v. Gore coming down that will, in my view, circumvent the Democratic process.
Thomas: Yeah, this country is, what? Two-hundred and forty-somethin’ years old? Why are we just locking down the rules now! [Laughs] Like, what?
Andrew: [Chuckles] Yeah. [Laughs] Um? You know, because we haven’t had a President who’s tried to kick in the rules as badly as this one. So now, with that kind of in the background-
Thomas: It would be like us playing 480 hours of “Codenames” and then finally being, “alright, Heath, you can’t cheat! Now we’re telling you, you can’t cheat.”
Andrew: [Laughing] Yeah, as opposed to game number 1, Heath Enwright!
Thomas: [Laughs] Exactly!
Andrew: So I will point out, I have reached back out to our buddy, Professor Lawrence Lessig who represents the Plaintiffs in this case, so I would love to have him back on to kind of do a deep dive on strategy and talk about it, until that happens I wanna break down – because all of the reporting about this decision has been beyond misleading. So, let’s start with the premise that what we have is, we have two conflicting decisions. We have a decision out of Washington State, out of a State Supreme Court decision that says that a State may bind its electors to the popular vote, and then we have this decision which came out of the Tenth Circuit that goes the other way, and Professor Lessig’s strategy is to appeal this to the Supreme Court and force the Supreme Court well before 2020 to make a decision and set the rules one way or the other. Which, again, in my view, is the optimal outcome. It’s not the end-state optimal outcome ‘cuz they might pick a rule that then winds up hurting Elizabeth Warren, but it’s way better than not having the rules and then having to go to partisan hacks and go, “okay, how are you gonna construe this rule?” because we know how they’re gonna construe the rule! So let me kinda go through this particular Colorado lawsuit, here was the idea. And, again, like I said, you hit on literally every single point I wanna make in this segment in your answer, it was fantastic.
Thomas: Take that, everyone!
Thomas: I should get some bar credit for that.
Andrew: You should! This was – so at the same time that we were covering Jill Stein’s fraudulent recounts, there was a non-stupid but still super-duper long shot effort to try and make Donald Trump not the President, and that was an effort to find 37 Republican electors, which would take Donald Trump below the 270 threshold, would take him to 269, in order to throw the election into the House of Representatives and the pitch was, let’s get these 37 electors to all write in a moderate Republican candidate, they settled on John Kasich from Ohio. Under the Constitution, if no Presidential candidate receives an outright majority then the election goes to the House of Representatives, each State delegation gets to cast one vote for one of the top three candidates receiving electoral votes. So think about how that would play out, if the way it works is you find 37 moderate Republicans, you say “write in John Kasich,” that will throw the election that will give Donald Trump 269 electoral votes, Hillary Clinton what, 240? And John Kasich 37. They will be the top three candidates, it will throw the election into the House of Representatives, and the House of Representatives is not – they can’t just pick anybody, right? They have to choose from among the top three. They have to choose Trump, Clinton, Kasich. And, fortunately for you, even if you go by straight numbers or if you go by control of State delegations, either way more than 26 States have – at the time – had majority Republican congressional districts, so they would then get to pick whoever the President would be and then presumably you would lobby Congress, and the 2016 Congress it seems pretty safe to say, as between Donald Trump and John Kasich would go with Kasich. So that was the plan.
Thomas: And it worked!
Thomas: President Kasich! Yeah.
Andrew: Right! And it worked fantastically well, as we know, as President Kasich has led this country to an unpres- No, of course it didn’t work! Because a plan that requires 37-
Thomas: That’s a lot.
Andrew: Yeah [Laughs] That’s the best way to put it, right?
Thomas: If it was a handful, maybe.
Andrew: Yeah! If it was four, yeah, you probably could’ve done it. And so that’s why we didn’t go through that process at the time. Also because our [angry] base wasn’t giving money to the Hamilton elector project! [Laughs] I will point out that this is not an unprecedented thing, historically. Two elections, 1800 and 1824, have been decided in the House of Representatives and then there’s the weird – we do not have time to talk about the election of Rutherford B. Hayes in 1876, the corrupt bargain and everything else.
Thomas: [Whining] Awww!
Andrew: I know!
Thomas: But you promised!
Andrew: [Laughs] But yeah, so if we had covered it at the time I would’ve said, “you’re not gonna find 37 people but go ahead,” because historically this is why the electoral college exists, and that takes us to the next part of your answer in which you referenced historically the reason for the electoral college, that is – and I have read parts of this on the show before – the actual place that that’s found is Federalist Papers No. 68, which I would call the saddest Alexander Hamilton, right? [Chuckles] Hamilton is arguing for passing the Constitution and for it having the electoral college as the mechanism for selecting the President. So he then describes exactly the way the electoral college works, exactly what I just did, and then he gives his reason, and this is why it’s the saddest. Hamilton says, “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”
Thomas: [Hoity-Toity Voice] Hmm, yes! Quite! Hmm, yes, uh-huh!
Thomas: Timeless truths, there.
Andrew: “It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.”
Thomas: Mm-hmm. [Agreement]
Andrew: So that’s an [Laughing] “Alexander Hamilton Was Wrong” segment that we can run
Thomas: Yeah. Take that, Hamilton.
Andrew: Yeah, that pretty much describes Donald Trump, right? Like, [Laughing] “talents for low intrigue and the little arts of popularity” that is the old-timey 18th century way of saying “criminally insane gameshow host.”
Thomas: Yeah, if someone said that about you back then you were required to have a duel with them. Them’s fightin’ words!
Andrew: Yup! They were fightin’ words!
Thomas: Back in 1700 speech.
Andrew: [Laughs] So, look, it is abundantly clear that the purpose of not having States just, you know, transmit their numbers directly of having electors was to do exactly what Lessig’s group tried to do in 2016. So what did they try to do? They got lots of people in lots of different States, this involved the State of Colorado, and it involved three folks: Micheal Baca, Polly Baca (no relation), and Robert Nemanich. And they were Democrat electors, Colorado won by Hillary Clinton, they were three of the nine electors for Colorado in 2016, and Baca cast his vote for John Kasich – because by this time it was clear that there might be, there were other faithless Republicans but some of them were looking at – one wrote in Collin Powell, so there was a reason to want to take away even some Clinton electoral votes because Clinton was never going to get more out of this process.
Thomas: So were they just wanting to test the whole theory?
Andrew: They wanted, A, to test the theory, and B, to make sure – because remember, the House of Representatives gets to pick from the top three candidates – for this to work the third highest candidate has to be Kasich.
Thomas: Oh, okay.
Andrew: That’s the only – because it’s a Republican controlled House and if you give them Hillary Clinton, Bernie Sanders and Donald Trump, they’re gonna go with Donald Trump, right?
Andrew: So the only way to have the House not pick Trump is to give them a Republican they like better. So the idea was to coordinate, everybody vote for Kasich. So Baca came in, cast his vote for Kasich, and in response Colorado’s Secretary of State said “okay, under Colorado State law we are now removing you as an elector and we’re gonna put somebody in there who’s gonna vote for Hillary Clinton” and in fact they did, and they replaced Michael Baca on the electoral slate with somebody else. Then Polly Baca and Richard Nemanich voted for Clinton. They protest, they were like “alright, well we don’t wanna be kicked off the slate here, we’ll vote for Clinton, but we’re doing so under protest, we really wanted to vote for Kasich” and that’s what this lawsuit was about. This lawsuit was the Bacas and Nemanich challenging Colorado, and they raised two separate sets of allegations. The first was that removing Michael Baca was unconstitutional.
Andrew: That it prevented him from being able to exercise his right as an elector in the Presidential election. The second set of claims related to the other two voters and it was for various tort claims and various Section 1983 injuries that says, look, we were intimidated out of being able to vote our conscience. We really, really wanted to vote for Kasich and we couldn’t because of Colorado law and so we’re suing you for that, and what the Tenth Circuit has said, and all that the Tenth Circuit has said – and again, I’m gonna explain the significance in a minute – that lawsuit was dismissed by the United States District Court in Colorado at the trial court level. They said “you don’t have standing to bring this lawsuit” and their argument for why they didn’t have standing I’m gonna get into in a second. The Tenth Circuit has reversed that in part and has said “no, Michael Baca was a Presidential elector and then when he went to vote that vote was taken away from him and that’s a kind of injury that, if he’s really been hurt here, for which you have standing, which the Courts can address.” So they permit, they remanded back down to the district court and they’re going to permit Baca’s case to go forward. Now Polly and Nemanich the Court said “your injury is too attenuating, sorry! I claim I was intimidated by the State, that’s not good enough, you’re gonna have to – you were able to vote and you were able to vote without being removed and you suffered no penalty as a result of your vote, so you have no case.”
Andrew: So that’s what they decide. So the first thing to ask is, what would that basis for standing be? Why is there a right for a Presidential elector to cast a vote? And that goes to the understanding of a 1939 case, ironically a case we discussed the last time we had Professor Lessig on the show, Coleman v. Miller, and Coleman v. Miller is about – because the last time we had Professor Lessig on the show we were talking about Article 5 conventions, Coleman v. Miller is about a proposed Constitutional Amendment. In 1924 Congress proposed an Amendment to the Constitution that would prohibit child labor. Because it was 1924 of course it never passed!
Andrew: But there were disputes over it. So in 1925 the Kansas State Legislature was considering whether to sign on, ‘cuz it’s gotta pass three-quarters of the States, and so it was split 20 to 20 in the Kansas State Legislature and then the Lieutenant Governor was presiding over the Kansas State Senate, cast his vote in favor of the resolution, it was then adopted by the Kansas House and then signed by the Governor of Kansas. And so the minority members in the Kansas Senate brought a Writ of Mandamus action to the Kansas State Supreme Court to say “hey, this was nonsense. The Lieutenant Governor gets to break ties on laws, but he doesn’t get to break ties on Constitutional Amendments, you gotta have a majority and they didn’t have a majority, this should fail.” And the Kansas State Supreme Court said “no, the resolution duly passed both Houses of Congress, the act of ratification was then final and complete and get out of here.” So then they appealed up to the Supreme Court and the only issue – and again, I wanna cut to the punchline – the Supreme Court declined to examine the question of whether the Kansas Lieutenant Governor had the right to cast the tiebreaking vote or not. They did not care [Laughing] about the result, which is the same as endorsing the result. They said, look, this Court, quote, “is equally divided and therefore the Court expresses no opinion,” end quote, on the actual merits of the case but the significance of the case was a standing question, do you have, as members of the Kansas Legislature, the right to go to the Court for relief in the first place? And what the Supreme Court said was, quote, “We think that these senators have a plain, direct, and adequate interest in maintaining the effectiveness of their votes.” End of quote. So, that’s what Coleman stands for. It stands for the proposition that you have standing when you are entitled under the U.S. or your State Constitution to a vote and you don’t get to cast that vote.
Thomas: Why does it have to be that – you know, those lawmakers, why is it never okay… you’re probably gonna – I think I already know the answer to this, but you would think when it’s like “someone thinks a great injustice happened,” you know, one way or the other, this either shouldn’t have passed or should have passed, why is it not some sort of citizen group that’s able to say “this wasn’t right, we’re suing because of this”?
Andrew: Yeah, that’s a really good question.
Thomas: Is it because it’s – is it that normal course of government thing where you can’t sue – haven’t you brought that up before?
Andrew: Yes, yes. Yeah. And so it would be fact-specific, it would depend upon what the thing that the citizens interest group is trying to protect, but you have taxpayer standing and third-party standing. There are specific areas where the Court has said-
Andrew: “Yeah, I mean in general, if you’re interested in good governance you have standing because of X, because of how your tax dollars are being spent or whatever,” but they have narrowly constrained that in light of traditional standing principles because what you don’t wanna have happen is what would happen if you loosened the reigns on that. Imagine-
Andrew: Every single time the NRA lost, right? [Laughs] That any law got passed you’d be able to immediately go to Court-
Andrew: -and enjoin, that’s a terrible-
Thomas: Every time the law that the NRA didn’t like?
Thomas: I’ll take that! I’ll take those-
Andrew: I was gonna say, maybe I should look for a different example.
Thomas: -all zero times? Yeah. [Laughs]
Andrew: But, no, you could expand beyond that into just every time the legislature transacts business you have somebody that doesn’t like the end result of the Democratic process.
Thomas: Right, any time you’re trying to do any sort of environmental regulations every single oil company every time suing, is it that kind of thing?
Andrew: [Chuckles] Kind of like that thing, yeah.
Andrew: But at least then those oil companies typically have direct standing, because they’re currently doing a thing and the new law, you know, banning fracking is gonna stop them from doing that thing. That’s not-
Thomas: I see.
Andrew: That’s not third-party standing. What would be third-party standing would be if, as you could easily imagine happening, in many of these States, the citizens of Florida are as opposed to offshore drilling as Congressional Democrats even though Florida leans Republican, so image that you had a settlement in which – you know, you passed a law and then you have a settlement in which the oil companies in Florida were no longer – the State Legislature bans offshore drilling and then the oil company agrees to shut down, they get some concessions or whatever and then all of a sudden a turf group funded by the Koch Brothers comes in and says “no, no, we have third-party standing, we are the Citizens for Inexpensive Gasoline in Florida and we wanna re-open this,” you could do that on literally every Legislative accomplishment.
Andrew: So standing serves and important purpose in my view.
Thomas: Mm-hmm [Affirmative]
Andrew: And that’s what the Tenth Circuit kind of did here. They looked at Coleman and they said “okay, you guys are arguing that Coleman stands for the proposition that everybody always gets to exercise their vote” and then the Tenth Circuit said, “we think you’re probably reading that a little too broadly.” Coleman stands for the proposition that the Legislature, that the Legislators whose votes would have been sufficient to defeat or enact a specific Legislative act have standing to sue if that act goes into effect or doesn’t go into effect on the grounds that their vote had been nullified. So, think back to the Coleman case, if you throw out the Lieutenant Governors vote then those 20 Senators voting “no” would have gotten their way, and this overlaps with our discussion of standing from Jill Stein and, in fact, this is what the Tenth Circuit says here. It says, “here, even if the Petitioners had successfully voted for John Kasich, the winner of the 2016 election would not have changed. Donald Trump would still have received 304 electoral votes, a number constituting the majority of the whole number of electors appointed.” So, in other words, that’s confining the standing doctrine. That’s saying the vote thing has to be a vote that makes a real difference, but then they crafted this exception, and this is pages 86 to 87 of the Opinion, they say, “The only potential for legislative standing is where an individual Legislator suffers a personal injury. So, for example, if a particular subset of Legislators was barred from exercising their right to vote on bills, such an injury would be sufficient to establish a personal injury. Here, Mr. Baca has alleged that the Department struck his vote for President and removed him from office thereby preventing him from casting his vote for Vice President. This is the type of injury that zeroes in on him individually and is thus concrete and particularized and is therefore a personal injury in fact.” So that’s where they drew the dividing line. That’s why it is confined to the electors themselves or to the legislators themselves. Does that make sense?
Thomas: Yeah, yeah. I’m just thinking about, remember that one Congressman who got just the tar beaten out him by another one back in the 1800s?
Thomas: That guy – talk about suffering a personal injury! I’m pretty sure he had standing.
Andrew: [Laughs] Yes, he would! That would not even be covered by Legislative Immunity!
Andrew: So that’s the decision. There have been crazy headlines written about this. NBC News headlined this as “The Faithless Elector Court Ruling Just Changed How We’re Going to Pick Our Next President.” No! That’s, none of that happened, and what this does is, like I said, this sets up a conflict where you now have two different rulings, one from the State of Washington which goes the other way. So I suppose I should say the bottom line, here’s what this means: 20 States have no restrictions on their electors. 30 States have laws that bind the electors to vote for the popular vote winner. Every state uses their criteria to select their slate of electors to try and ensure that the electors vote for the person who wins the popular vote in the state. If the Baca rule becomes the dominant rule then here’s how I parse it out, States will be able to intimidate, cajole, threaten, do everything in their power short of removing an elector and replacing him with somebody else to vote a different way. So States will still have the ability to try and clamp down and protect and make sure that its slate of candidates – its slate of electors – vote for Elizabeth Warren if she wins the State, but the thing they can’t do is, at the moment when that elector goes to cast their actual vote, they can’t go “oh, you voted the wrong way, we’re gonna pull you out and replace you with somebody else.” And, by the way, another Andrew prediction, I think the Supreme Court will take this up and I think they will rule – it’s, again, kind of part of the brilliance of how this was litigated out – so I think Larry Lessig, somebody who was to the left of you and I on this show [Chuckles] the last time he came on the show, I think he’s going to win at the Supreme Court.
Andrew: And I think he’s gonna win because the arguments that I put in front of you are arguments that are likely very, very persuasive to a Supreme Court that professes to an Originalist ideology when kind of taken out of the context of “is this gonna help my guy or hurt my guy.” To me, and this opinion, this Tenth Circuit opinion is 117 pages long. It’s super long, it’s very comprehensive, it goes through the history, and not just Federalist 68 but Federalist 60 and Joseph Story’s Commentaries and I have a whole bunch of stuff that I could do on that but we’re over time anyway, but I think that we’re going to get the best possible outcome out of this, which is we’re gonna get a definitive rule and that definitive rule will be made without the knowledge of which party it’s going to benefit and if you can get a better result than that from our Supreme Court then, you know, then give me a call.
Thomas: [Chuckles] Alright, well, let’s hope this doesn’t come back to bite us when Trump loses by a handful of electoral votes and the faithless electors give it to him anyway.
Andrew: Thanks. Thanks for that. Appreciate that.
Thomas: [Chuckles] Right after the apportionment screws us all out of – just worst possible timeline, just preparing my Negatron, my future Negatron.
Andrew: Understood, understood.
[Commercial – vistaprint.com/oa for 500 business cards starting at $9.99]
Thomas: We’re late and out of time, but do we have a lightening round left in us, here?
Andrew: Yeah, let’s do a lightening round.
Thomas: Alright, lightening round Andrew, what’s going on with the emoluments case? Are we still going with this? Still with the emoluments?
Andrew: [Chuckles] Uh, we won’t be going with this much longer. In Episode 299 I described the last ruling out of the D.C. Circuit Court of Appeals that, while technically denying relief, remanded back down to the D.C. Circuit, this is Judge Sullivan in the D.C. case, with instructions that – particularly if you listened to the Patreon-only bonus deep dive we did on it – said, look, this is really, really clear. This is going to – any judge on earth is going to take this ruling and issue, certify for interlocutory appeal the President’s request to have the D.C. Circuit decide the legal question of “do individuals have the right to sue for violations of the foreign emoluments clause” and to shut down discovery. So, way back when we had an unexpected victory in the Maryland case I said, “look, part of the genius here is that the courts refuse to certify an interlocutory appeal and require discovery and discovery orders are not immediately appealable so we’re gonna get documents.” The Trump lawyers circumvented all that, and we are now in a place where the discovery in the D.C. case has been suspended, there will be no documents produced in that case, it will go back up to the Court of Appeals for the D.C. Circuit, which I think very likely will rule that the contemplated remedy for emoluments clause violations is impeachment. And, look, I’ve been saying that from the very beginning, right?
Andrew: I’ve been interested in getting these documents, I think the allegations are substantial and serious and have merit, but they come in a legal framework that when you look at it it’s just very, very clear to me that that Constitutional provision was meant to apply to the House of Representatives and not to individual litigants and, you know, this is a Lessig-heavy episode, so-
Andrew: -one of the things he said in our extended interview with him that I took very seriously is at some point it is still a Democracy and [Laughs] you do still have to trust what a majority of the people will do and, you know, it… it sucks in this case, obviously.
Thomas: Meaning what? Meaning what, like Congress is-
Andrew: Yeah, meaning that-
Thomas: ‘Cuz we can’t do it. [Laughs]
Andrew: No, but meaning that-
Thomas: We just have to hope that Congress does it?
Andrew: That maybe you shouldn’t vote for-
Thomas: Yeah, that’s true.
Andrew: -a corrupt billionaire who refuses to release any information about his personal finances, and refuses to pledge to even divest himself-
Andrew: -of his financial conflicts of interest. This is not an unforeseen consequence of electing Donald Trump, this is the reason people elected Donald Trump, and, you know, so…
Thomas: Yeah, it is true that the rulebook isn’t really gonna save us. You know, we actually have to not be the worst as a country. Somehow.
Andrew: Yeah. Yeah. And, you know, I wish – It’s part of what I think about. I certainly think – I don’t think “persuade people better” is the answer to everything, but maybe it is part of the answer to some of these Trump issues. I don’t know. Look, I would much rather us have these documents. I think the documents would have been a gateway to show further criminal activity. But there is a very, very strong argument on the other side that says, “hey look, that’s great and all, but don’t use the civil litigation process as a vehicle for that. Look, you’ve got the House of Representatives, you have the House Judiciary Committee, you have the House Intelligence Committee, you have the House Oversight Committee, go about getting this information in other ways but private litigants? Not the way to do it.” And, um-
Thomas: This is still an “Andrew Was Right” right? I mean, you’ve been predicting this the whole time?
Andrew: Yeah, I think so. I may have – I’m sure you can find some exuberance that I had when I was surprised by the Maryland decision in which there were probably sub-predictions in which I said – I know I said “we’re gonna get documents” because-
Andrew: -I didn’t anticipate that the Fourth Circuit would, in a ruling on a Writ of Mandamus, which they denied – because Mandamus Relief is not appropriate here, would nevertheless effectively reverse and kind of shut that down.
Andrew: So, yeah. There have been things that I have been wrong about in this litigation, I don’t wanna not own up to those.
Andrew: Because Seth Barrett Tillman’s listening and he’ll write in if I’ve gotten it wrong.
Thomas: Yeah. Yeah, yeah. Well, on behalf of everybody, how dare you, Andrew? You got stuff wrong. I’m so disappointed. Alright, that was a good lightening round! Or is there more?
Andrew: No, that’s it! We’re done!
Thomas: Wow, that was maybe your most successful lightening round ever! It was only five minutes or something. Three minutes? [Chuckles]
Andrew: Yeah, and I had questions from you! You were not helping me in this!
Thomas: Yeah, no, I usually am trying to mess with you. [Laughs] Alright, well it’s time to get to happier things ‘cuz that was depressing, so let’s go on over to patreon.com/law and thank our hall of famers, our all-time greats, who always give us laughs week-in, week-out with their names, time for the shout outs!
[Patron shout outs]
Thomas: Alright, wow, I thought that would never end, but it’s probably just the shame of me mispronouncing words randomly.
Thomas: That’s what happens when you talk all day every day for a living. Sometimes you get a few things wrong. Alright-
Andrew: Well, here’s a thing you won’t get wrong.
Thomas: I was gonna say! Speaking of things I get wrong, it’s time for the bar exam. I’m on a zero, like a ten-question wrong streak, right? Or did I get one-
Andrew: Four. It’s a four-question losing streak.
Andrew: But, you know, I have confidence.
Thomas: I think in between, sandwiched, I got one right and before that was like a six-question wrong streak. I’m not doing well.
Andrew: I feel – I have faith in you and let’s see how you like this one.
Andrew: This is not real property, this is just torts! You should be great at this! Thomas, a customer fell and injured himself when he slipped on a banana peel while shopping at a grocery store.
Thomas: Ooh! Banana peel law, my specialty!
Andrew: The banana peel was [Laughing] fresh and unblemished except for a mark made by the heel of the customer’s shoe.
Thomas: [Laughs] Interesting to see how that factors in? Okay.
Andrew: In an action brought by the customer against the store-
Andrew: -these are the only facts in evidence.
Andrew: So, hell of a lawyer that Mr. Banana-Peel-Slipper has, but – these are the only facts in evidence. Should the trial judge permit the case to go to the jury?
Andrew: A: No, because the customer had an obligation to watch where he stepped. B: No, because there is not a reasonable basis for inferring that the store knew or should have known of the banana peel. C: Yes, because it is more likely than not that the peel came from a banana offered for sale by the grocer.
Andrew: Or, D: Yes, because the store could foresee that a customer might slip on a banana peel.
Thomas: Aw man! I don’t know. This is. [Sighs] Ya’ think you’re gonna get one in your specialty, banana peel law, and then they throw this curveball at you. So, the banana peel was fresh and unblemished. I mean, is the point of that to suggest that, like, it just happened, literally just happened? So maybe the store couldn’t have known about it? Should the trial judge permit the case to go to jury? I mean, I always feel like stuff should go to jury, like you should get your day in Court, you know. Is this enough to? I’m not gonna know what specific rule – I always hate when you say you have a good feeling about me getting a question because it’s always nonsense. You’re just saying that to taunt me. [Sighs] No, because the customer had an obligation to watch where he stepped, well… I don’t think so. I mean, I don’t think that’s it. B, no because there’s not a reasonable basis for inferring that the store knew or should have known of the banana peel. Um. Yeah, B is – okay, that seems pretty plausible. That would be under the logic that, look, sure if this was a banana peel that had all kinds of foot marks on it, [Laughs] just fifteen people in a pile, slipping on the same banana peel that’s been there for an hour!
Thomas: So, B I’m seeing plausible.
Andrew: [Laughing] This is the greatest re-write of a bar question, ever! Anyway, sorry, keep going.
Thomas: C, yes because it’s more likely than not that the peel came from a banana [Laughing] offered for sale by the grocer. So I could see that answer being it under the theory that, which may be right, that all you need to show is that they sold a thing and that – or, a product of theirs caused this, even if ultimately maybe they’re not to blame, just to get the case to go to jury, so I could see C being it under that logic. D, yes because the store could foresee that a customer might slip on a banana peel. I don’t know, I’m not loving that one very much. I think I’m between B and C, which is a no and a yes, so I’ve got both options here. [Sighs] An action brought by the customer against the store, these are the only facts. I feel like they could’ve gone a little harder on the facts. Should the trial judge [Mumbles] I mean, I feel like – I lean toward yes, so I guess I’ll go with C. It seems stupid. Let’s see, B, no there’s not reasonable basis… I dunno. This is a weird question. I feel like going to jury should be pretty, a pretty light burden. You know, I think? ‘Cuz that’s, you know, you still go to jury, doesn’t mean you win, you know? Like, you still gotta make the case, so on that logic I’m gonna go C because it’s more likely than not that the peel came from the banana offered for sale by the grocer, or I’m sorry, grocer, is that? Gotta get my theh-sur-us [Laughs] or thesaurus-
Andrew: [Laughs] Yeah, I was gonna say it’s pronounced “Al-oo-min-ee-um.”
Thomas: Grocier? Yeah. So, yeah, I’m gonna go with C, I’m not confident because, you know, my confidence has been shattered by just a string of banana peels that I’ve slipped on every question, but there you go! C, final answer.
Andrew: Alright, and if you wanna play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore, and we will pick a winner and shower that person with never ending fame and fortune! (Fame and fortune not guaranteed).
Thomas: Alright, thanks so much for listening everybody, I know it was a depressing episode as always, but we live in the worst timeline, so that’s why! [Laughs] But, make sure to toon in on Tuesday for a Stormy Daniels update, I am just as excited as you are, if not maybe a little more excited. So up your excitement level and we’ll see you then!