Transcript of OA363: Good News About Ex-Felons in Florida

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments!  This is episode 363, I’m Thomas Smith, that over there is Andrew Torrez.  How’re you doin’ Andrew?

Andrew:         I am fantastic Thomas, how are you?  How’d you enjoy those Nevada results… if they came in?

Thomas:         Oh yeah, fantastic Nevada results that we know about.  We’ll see if we can record two versions of this.  “Oh what a disaster!  Biggest disaster since Iowa!”

Andrew:         [Laughs]  

Thomas:         And then, okay Brian, this one’ll be “Oh, fantastic job, of course Nevadans are better than Iowans and they executed-

Andrew:         In every way.  I mean, let’s, you know.

Thomas:         Surprise win by Bloomberg who wasn’t even on the ballot!  I can’t believe it! 

Andrew:         [Laughs]  

Thomas:         I mean, how hard would it be for Bloomberg to personally pay every single caucus-goer to vote for him?  Wouldn’t be that hard.  I mean, it’s Nevada.

Andrew:         Yeah, that would be a crime.  Just so we’re clear, that would in fact be a crime.

Thomas:         Oh I’m sorry, do crimes matter, Andrew?! Do crimes – is that still a thing?

Andrew:         [Sighs]

Thomas:         Who’s gonna – oh, somebody’ll arrest him or something?! [Laughs]  This guy.  Crimes.  [Laughing] Well speaking of, let’s – I think you have some more teasers.  This is a little teaser segment, we should add this to the official segment list.  Teaser segment, go!

Andrew:         Yeah, teaser segment.  Next week lots of you have sent me the delightfully mad lawsuit by George Zimmerman against Liz Warren and Pete Buttigieg.  Yes, Larry Klayman is his lawyer, yes it’s ridiculous, no we don’t have time to cover it this week.  But I promise you, I have seen it, I have read, I have consumed alcohol while reading it, I have laughed and I will share my thoughts with you.

Thomas:         Yeah, I don’t wanna be a buzzkill but I can’t really have a sense of humor about that.  I’m sorry.

Andrew:         That’s fair.  That is fair.

Thomas:         He just murdered a black child, essentially.

Andrew:         Part of tearing that apart is the ridiculous injustice at the system.  The fact that this person is not behind bars and is out and playing footsy with Fox News and running around with the conservative Republican establishment tells you everything you need to know about that side of the aisle.  No argument there.

Thomas:         [Sighs] Sorry to be a buzzkill, just personally I hate that guy so much.

Andrew:         Buzzkill away, that is an absolutely valid point.  I still do believe the law matters, so that’s important for us to say.

Thomas:         This guy!  With the law! Ha ha!  Again! [Laughs]  How many callbacks can you do this joke about the law mattering?  Okay [Laughs] I kid, sort of.  Alright well that teaser aside, let’s get to our first segment which is why might as well permanently name this segment Andrew Was Wrong?

Andrew:         [Laughs]  

Thomas:         It’s usually unclear, but Andrew was potentially wrong on the emoluments episode, what have you got for us?

Andrew Was Wrong (?) About Emoluments

[Segment Intro]

Andrew:         Yeah, so there are two things I was definitely wrong about.  Seth Barrett Tillman wrote in, in response to show 361, to say three things.  First he said “you said 30 days to appeal, I think it is 45 to seek rehearing, reconsideration, where the defendant is a government agency or official-

Thomas:         Huh.

Andrew:         -and 90 days to seek Supreme Court review.”  That is correct, that is Rule 40 of the Federal Rules of Appellate Procedure which otherwise require a petition for panel rehearing to be filed within 14 days and I went off the top of my head, ‘cuz usually I’m in a private party situation so I’m stuck in the 14 day rule.

Thomas:         Oh.

Andrew:         And I was guessing 30 without looking at it.  It is 45, verdict?  100% wrong on that one. 

Thomas:         Fair enough.

Andrew:         Second he says, “you said one of the other emoluments clause cases is also before the DC Circuit.  The other two are before the 2nd Circuit, Crew v. Trump where the DOJ is seeking an en banc review,” that is correct, “and the 4th Circuit, the DC and Maryland v. Trump,” that’s the Brian Frosh, the best case in my view where we are waiting for an en banc review by the 4th Circuit.  So that is correct, I was thinking of the latter case, I said it was before the DC Circuit, it is before an en banc review of the entire 4th Circuit, so I was 100% wrong on that one too!  Not looking good for me.

Here’s where I hope to make up for it.

Thomas:         Alright.

Andrew:         On the substantive point, Professor Tillman says – because I recommended that now that the Democrats control the House they could bring an emoluments clause case as the entire House of Representatives, and Professor Tillman writes “Pelosi seeking to bring a suit in the name of the House as a whole would probably fail.  Bethune-Hill seems to indicate that both houses of a bicameral legislature must bring a claim belonging to the legislature as a whole” and here-

Thomas:         Really?

Andrew:         I strongly disagree. 

Thomas:         Okay.

Andrew:         Not just on what I think ought to happen but on how I think those cases get applied.  So let me tell you about Bethune-Hill.

Thomas:         Yeah!  You know, all my life I’ve been wanting to know about Bethune-Hill!

Andrew:         [Laughs] This is a 2019 Supreme Court decision with a little bit of a strange alignment.  It is the Court’s liberal wing minus Justice Breyer plus Justice Thomas and also plus Justice Gorsuch.  So [Laughing] Thomas, Gorsuch, Sotomayor, Kagan, and opinion written by Ruth Bader Ginsburg with the other four judges on the bottom, so getting three conservatives and Stephen Breyer.  Kind of an oddball arrangement.

This involved the 2011 – so 2010 census.  Virginia, at the time, a red State and in the throws of Tea Party mania, the then-Republican Virginia legislature with a Republican Virginia governor redrew legislative districts for the State Senate and House of Delegates and, of course, because it was Republicans redrawing districts they redrew them in racially gerrymandered ways.  In 12 of those districts voters went and under the Voting Rights Act sued to say hey, these districts are racially gerrymandered.  There were multiple trials with the Virginia House of Delegates defending its racially gerrymandered districts each time. 

In June 2018, after the second bench trial, a three-judge District Court in the Eastern District of Virginia – again, that’s the special three-judge panels that are convened by the Voting Rights Act.  Usually it’s just one judge at the trial court level, VRA cases you get a three-judge panel.  They struck down the districts and they enjoined Virginia from conducting any elections for the office of Delegate in the challenged districts, in those 12 districts, until a new redistricting plan is adopted.  This was before the general election, elections were coming up, so the Court said, basically, Virginia has 4 months to redraw those districts.

[Laughs] Quick sidebar on 2017 and a little why you should always vote.  Virginia’s House of Representatives, House of Delegates, was 2/3 Republican in 2016, but Hillary Clinton won the State of Virginia statewide against Donald Trump, so Democrats had a plan to retake the Virginia House of Delegates for the first time in 20 years.  In the 2017 election, so they have every two years but their odd-numbered years.  So in the 2017 elections, Democrats cleanly won in 14 districts. 

That gave them 49 seats, so a 50-49 minority, and then it all came down to a rematch of Democrat Shelly Simonds versus Republican David Yancey in District 94.  There was an unofficial recount and then there was an official recount.  The recount put Simons, the Democrat, ahead by – I’m not making this up – one vote. 

Thomas:         Wow.

Andrew:         Then Yancey went to court to get an injunction because one of the ballots that was excluded for him – and I have viewed this ballot, I’m gonna try and link it in the show notes – is very clearly a Yancey ballot.  It votes for Republicans in every other position and then there are two people marked in the House of Delegates race, Simonds is marked and then there is a line scratched through it and then Yancey is marked.  It’s a Yancey ballot, and the court agreed.  They said yup, that’s your ballot.  That left them tied after the recount.

Thomas:         [Laughing] Wow!

Andrew:         11,608 to 11,608.  Do you know what they do in Virginia when you finish an election tied?

Thomas:         Oh is it some old timey law that they have to fight to the death or something?

Andrew:         I wish! 

Thomas:         They have a horse pick the winner?  I dunno.

Andrew:         They flip a coin!

Thomas:         Oh my gosh.

Andrew:         They flipped a coin, Yancey won, and the Republicans held the House 51-49 until they lost it in 2019.  Now 2018, again, was part of a blue wave election and the Democrats recaptured the Virginia governorship, all of the major statewide offices including Attorney General, and the Virginia Senate, and in 2019 they would retake the Virginia House of Delegates.  But in 2018-

Thomas:         Well, and by the way, Virginia’s just been killing it lately!  I keep seeing all these headlines of what they’re doing legislatively-

Andrew:         Yeah!

Thomas:         -and it just seems really cool.

Andrew:         Yeah, this is what happens what happens when you get involved.

Thomas:         Yeah!  Elections matter!  Vote!

Andrew:         So A, you literally – one more person in this District could have spared us from two more years of reactionary conservatives controlling the Virginia House of Delegates.

Thomas:         Wow!  That’s a big deal.

Andrew:         One vote.  Yeah, so in 2018 you have a Republican, a (quote) “Republican House on a coin flip,” and the rest of the State of Virginia is blue.

Thomas:         Geez.

Andrew:         That’s when this decision comes down, which says oh and by the way, this Republican map is racist garbage, so the now-Democratic Virginia Attorney General says “okay, we are not appealing this decision.”  Yeah, the Republicans drew a garbage, racist map and you gave us 4 months to figure it out, we’ll do our best to figure it out, but we’re not appealing this decision, we agree with this.

Shockingly, because you would have to have agreement between the Republican House and the Democratic Senate and Governor, in that 4 months they were unable to come up with a plan, so the Court plan went into effect.  But then the last-ditch coin flip red Republican House of Delegates sued to block that map from going into effect.  They said yeah, the Court doesn’t get to draw up maps, that’s our job. 

That went all the way up to the Supreme Court and, on the 5-4 ruling that I just described, the Supreme Court said no, you know what?  You don’t have standing, Virginia House of Delegates.  You got to do everything it is that you think you might be able to do in terms of weighing in on maps, but even if we had given you, even if there was nothing hanging over your head, you can’t pass a Republican map with a Democratic Senate and Governor anyway, so you don’t have an injury.

Thomas:         Hmm.

Andrew:         And you don’t have standing.  That is the case that Professor Tillman thinks means you have to bring a claim on behalf of the legislature by both houses.  Here’s why I think he’s wrong.  The Supreme Court did indeed say, on those facts, that the House did not have standing to challenge the court-mandated plan, but that’s because they already got to do their job.  There was no scenario in which the Republican plan was gonna pass the Democratic Senate and/or get signed by the Democratic Governor. 

Here’s what the Supreme Court says, and this is analyzing – we have actually talked about the Coleman case, that was the Kansas members of the legislature in terms of voting for a Constitutional Amendment?  The Supreme Court said “as this Court has observed, Coleman stands for the proposition that legislators whose votes would have been sufficient to defeat a specific legislative act have standing to sue if that legislative action goes into effect.  Nothing of that sort happened here. 

Unlike Coleman, this case does not concern the results of a legislative chamber’s pull or the validity of any counted or uncounted vote.  As we have already explained, a single house of a bicameral legislature” and this is, I think, the critical words, “generally lacks standing to appeal in cases of this order.” (End of quote).

So I get why, on its face, you would think that seems to mean you need both houses, but here’s why I think you don’t:  Because unlike the Republican State legislature in Virginia, the Democrat House of Representatives does have an injury.  Their argument is Donald Trump should have brought his emoluments to Congress where we could vote on whether to allow him to accept them or not.  And, as the House of Representatives we would have voted no, and then he would have been prohibited from taking those emoluments even if the Senate voted yes. 

Thomas:         Oh really?

Andrew:         We could have blocked it.  Yes, because it requires approval by both Houses of Congress.

Thomas:         Approval… Oh! So it’s not- okay.

Andrew:         Yup.

Thomas:         It’s not like passing a law, exactly.

Andrew:         It’s the opposite!

Thomas:         The default is “no.”

Andrew:         Yeah!  So they could have blocked it, it would have not been approved by Congress, and they were deprived of their opportunity to block that case.

Thomas:         Huh.

Andrew:         I think, certainly nothing wrong with the analysis, it is what you would expect, it is the argument that I think the other side would make, but I think the much better reading of that case is that there is an injury suffered to the House, here.  They have not had the opportunity to vote on whether the President should get to keep these contributions from foreign officials, and if they had that opportunity they could block it.  That is word for word what the Supreme Court says that the Coleman case stands for.

Thomas:         Hm.

Andrew:         So I think, thank you for the correction, but I’m standing by my suggestion that the Democratic-controlled House of Representatives could and should bring a new emoluments clause now that they are the majority in the House of Representatives.

Thomas:         Have we heard anything about this?  ‘Cuz yeah, it seems like why not?  Do it.  Any rumblings, any news?

Andrew:         No.  No, I have not heard anything that there is a new one, and look, I get that there’s a certain level of fatigue.  [Laughs]  We do this show twice a week!  I certainly do get that, but I stand behind it.

Thomas:         Well, yeah, I mean if there’s any representatives listening. [Laughs]  

Andrew:         We know there are some who listen to the show, so-

Thomas:         We do?

Andrew:         Yeah! 

Thomas:         Oh.  Like … U.S. House of Representatives?

Andrew:         [Laughs]  

Thomas:         Some State level ones.

Andrew:         Some States and some candidates and we have some strong suppositions at the federal, so-

Thomas:         Well, contact your local Nancy Pelosi and, I dunno, let’s get this going.  Let’s do this.  It couldn’t hurt.  Let’s try it, keep trying everybody!

Andrew:         Yup, keep trying!

Florida Restores Voting Rights to Ex-Felons

[Segment Intro]

Thomas:         Well now it’s time for our main segment, which I think is perhaps some … good news?  There was a good decision in the Florida felon’s case.  This was, from my memory, the voters decided that in Florida, ex-convicts ought to have some right to vote in some form, and then Republicans said “not on my watch!”  We’re gonna do poll-tax stuff and all this crap to make sure this law doesn’t take effect, and then it went through the courts and now it seems like there’s a good result in the 11th Circuit.  How’d I do?  Give us the update, Andrew.

Andrew:         Yeah, that is right in the main.  So in 2018, Florida residents voted overwhelmingly, 2/3, 65%, to restore voting rights to felons who had completed their sentences and because nobody in Florida is allowed to have good things, they also voted in a, very narrowly, a Republican Governor, Ron DeSantis and they voted Rick Scott to the Senate.

Thomas:         [Sighs]

Andrew:         Do better, Florida.  Oh, by the way, Rick Scott’s outgoing plan was to pack the Florida Supreme Court with hidebound conservatives and that turned out to go into effect, or not have any-

Thomas:         Yeah, that was gonna be this big dramatic thing and then we couldn’t win the reelection so it didn’t matter.

Andrew:         Yeah, and then we couldn’t win the governorship, that’s right.  So yeah, then the Republican State Legislature got together and passed SB 7066 which said oh, yeah, we are implementing Amendment 4 and by the way, serving your sentence means paying all of your outstanding legal financial obligations.  I need to tell you that that position is not remotely legally defensible. 

But it doesn’t matter because Republican Governor Ron DeSantis sent a letter to his partisan Republican friends on the Florida Supreme Court requesting an advisory opinion that completing all terms of sentence in Amendment 4 included paying all fines as implemented by SB 7066, and the Florida Supreme Court said “yeah, oh yeah, of course that’s what that phrase means!”

Thomas:         Right.

Andrew:         You don’t complete your sentence if you still owe $78 in court costs!  Just as a quick sidebar, this is – we should do an entire episode on the way in which recurring fines trap those in poverty at the margins of the justice system.  It’s horrendous and awful, and Republicans 100% know what they are doing when they say this.  This would completely gut the entirety of the amendment.

So Florida Supreme Court says, yeah, no, obviously that’s part of what completing your sentence means, and then various felons who have completed their sentence went and filed a class-action lawsuit and sought an injunction to stop SB 7066 from going into effect.  The key question – so this is an injunction, that was granted at the District Court level and two days ago upheld by a three-judge panel of the 11th Circuit.  As you know, Thomas, the criteria for granting an injunction, four-part balancing test, as always, the major prong of whether you can get an injunction is likelihood of success on the merits.

Thomas:         Mm-hmm.

Andrew:         So the fundamental question was are you likely to succeed that this law, SB 7066, is unconstitutional?  The argument is not that it is unconstitutional as a poll tax, so to speak.

Thomas:         Hmm.

Andrew:         The argument is that it is an unconstitutional form of discrimination on the basis of protecting a fundamental right, which is restricting access to the fundamental right which is a right to vote.  The 11th Circuit works through this – I’m gonna include the opinion in the show notes.  I would encourage you, even if you’re not a law student I would encourage you to read this opinion because it is a very, very thoughtful, considered, intelligent opinion.  And I don’t just say that because I like the result that they’ve reached.

It is the kind of judicial writing that I wish we saw more of, particularly in the age of Trump.  That’s because the 11th Circuit looks through and says look, our job is to try and figure out what the law is and this is a hard question.  The reason that it’s a hard question, I’m gonna quote a little bit from the opinion here:

“We look through a different prism when the law classifies in certain suspect ways – on the basis of race, gender, or national origin – or classifies in a way that burdens fundamental rights. Those classifications get heightened scrutiny, a more exacting form of review.”

Then they say, this starts at page 20, “The appropriate level of scrutiny here is not immediately obvious. This case does not neatly fit the traditional categories that call for heightened scrutiny” and why is that?  Because “wealth is not a suspect classification.”  Discriminating on somebody on the basis of money, even if you’re discriminating against poor people, is not like discriminating against black people.  The Supreme Court has been very, very clear that that’s the way it breaks down.

Thomas:         Should we – side note, can we fix that?

Andrew:         [Laughs]  

Thomas:         Like maybe it should be?

Andrew:         We can fix that legislatively, we cannot fix it in terms of interpreting-

Thomas:         Constitutionally?

Andrew:         -the Equal Protection Clause of the 14th Amendment.

Thomas:         Yeah.  Okay.

Andrew:         I would love – let’s put a pin in that, I would love to do a discussion about that at some point.  So on the one hand, being poor is not a suspect class under the Supreme Court’s equal protection clause jurisprudence.

But then, the Court continues, “On the other hand, it is not obvious that rational basis review is appropriate.”  There they look at a couple of cases and they say because we’re not talking about discriminating against poor people just, you know, in terms of access to services.

Thomas:         Mm-hmm.

Andrew:         We’re talking about restricting access to-

Thomas:         A fundamental right!

Andrew:         To a fundamental right!  Right. 

Thomas:         Yeah.

Andrew:         So on the one hand, half the signs point to yes, half the signs point to no.  Then they say-

Thomas:         Huh.

Andrew:         “The Supreme Court has routinely referred to the right to vote as ‘fundamental’” and thus, in cases where classifications restrict access to vote, the Supreme Court has held heightened scrutiny applies.  So they say okay, on the one hand we say generally okay to discriminate against poor people-

Thomas:         [Laughs]  We’re all cool with that?  Agree, agreed, fine.

Andrew:         On the other hand, generally not okay to discriminate against anybody’s right to vote.  On the third hand, only two cases have ever looked at this exact question, that is wealth discrimination in automatic felon re-enfranchisement cases. 

Thomas:         Hmm.

Andrew:         That (quote) “as a practical matter, deny indigent felons access to the franchise.”  Both cases, one in the 6th Circuit and one that was a State Supreme Court in Washington, held that rational basis scrutiny applied because (quote) “felons do not have a fundamental right to vote and wealth is not a suspect classification.”

So only two courts have analyzed that specific question, the question of is it okay for a legislature to impose qualifications on restoring voting rights to felons and both of them, one was a 6th Circuit case, one was a State Supreme Court case in Washington, both held that rational basis applied.  You did not get heightened scrutiny because (quote) “felons do not have a fundamental right to vote and wealth is not a suspect classification.”  So that seems bad, right?  That’s what you have to distinguish against.

Then the 11th Circuit said “you know what?  We’re gonna go through this.”  Ultimately they held that heightened scrutiny did apply, and I’m gonna explain why in a minute, but then they also engaged in what we typically call judgment-proofing a case.  That is, beginning on page 21 saying “but you know what?  Even if only rational basis scrutiny applied here, this might not pass rational basis.”  That’s a pretty big statement to make!

Thomas:         Hmm.

Andrew:         Here’s their analysis.  They say, “Under rational we will not overturn a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.”  I told you that lawyers sometimes call this the fogged-mirror test, but here’s what it says:

“The question we ask is whether the legislature could have conceived of a rational basis for the classification it drew.”  Then adding, that doesn’t have to be right! 

Thomas:         Hmm.

Andrew:         Here’s how the court says that.  They say, “a legislative choice is not subject to courtroom fact finding and may be based on rational speculation (quote) unsupported by evidence or empirical data.” [Laughing] (end of quote).  So, for example, one of the leading cases on rational basis is a case called Vance v. Bradley in which the Supreme Court upheld a law that set the mandatory retirement for foreign service officers at age 60, and the Supreme Court said “although ‘empirical proof that health and energy tend to decline somewhat by age 60’ would have been powerful evidence for upholding the statute, those challenging a legislative judgment must show (quote) not only that the facts do not support the classification, but, even more onerously that ‘the legislative facts on which the classification is based could not reasonably be conceived to be true by the governmental decision maker.’”

[Laughs]  Get that? 

Thomas:         Nah, I’m not totally sure I understand.  Doesn’t this, unless I’m misunderstanding, doesn’t this make rational basis nothing? 

Andrew:         It makes it almost – that’s why it is the fog mirror.

Thomas:         Yeah.

Andrew:         It makes it almost nothing.

Thomas:         It’s not really rational basis, it’s just basis.

Andrew:         [Laughs] Yeah, it is any sort of conceivable.

Thomas:         Any basis.  Yeah.

Andrew:         But then, as the 11th Circuit points out, “Traditional rational basis review is highly deferential, but not toothless.”  In other words it is possible to strike down a statute for-

Thomas:         Yeah, I’m pretty sure Trump’s crack legal team has messed this up a few times.

Andrew:         [Laughs] Yeah.

Thomas:         They’re like “gosh!” The Supreme Court was like “I can’t believe it, but there’s not even a rational basis here!”

Andrew:         [Laughs]  And they say when we review a statute for rationality, generally we ask whether there is any basis, any rational basis for the law even if the government-proffered explanation is irrational and even if it fails to offer any explanation at all.  So yeah, that’s anticipating Donald Trump, there. 

Here, what the 11th Circuit says is if we look at the question as applied, with respect to these particular plaintiffs, the distinction that the 11th circuit draws that I think is really key to analysis here is that the statute prohibits re-enfranchising felons who would like to pay off their fines but can’t. 

And here’s what the court says: “If the question on rational basis review were whether the LFO requirement” and by LFO, that means Legal Financial Obligations, so paying off their fines.

Thomas:         I thought it was a Low-Frequency Oscillator.  That’s what I thought it was.  Never mind.

Andrew:         [Laughs] “Is rational as applied to those unable to pay, we think it is clearly not.  The continued disenfranchisement of felons who are genuinely unable to pay LFOs and have made a good faith effort to do so does not further any legitimate State interest that we can discern.”  That’s a really, really good point.  All of the justifications for well, why should you continue to deny them – why should we grant the franchise to people who still haven’t made good on their debt to society?  If the response back to that is well, they’re trying, they’d like to-

Thomas:         Hmm.

Andrew:         Then there’s no further deterrence benefit and their sentence is over so there’s no further punitive nature-

Thomas:         Yeah.

Andrew:         -that the state can impose, and I think the 11th Circuit’s reading here is pretty persuasive.  Obviously, if heightened scrutiny applies it’s a no-brainer.  There is a case called Bearden v. Georgia, it’s a 1983 Supreme Court decision-

Thomas:         I gotta say, that’s kind of frustrating though.  “Look, if we’re supposed to apply any sort of scrutiny to this then of course it fails!”

Andrew:         [Laughs]  

Thomas:         But, if by some [Laughs] legal trick we don’t have to really look at it?  Then sure, maybe?  That’s kind of frustrating.

Andrew:         But they say, but even then, probably not here, which is how far it goes.  Yeah, so if there’s heightened scrutiny it’s a no brainer, Bearden v. Georgia, there was a statute that revoked probation based on a failure to pay a fine that a defendant was unable to pay and the Supreme Court said very clearly “that’s unconstitutional discrimination on the basis of wealth.”  Whether analyzed in terms of equal protection or due process, this issue cannot be resolved by resort to easy slogans or pigeonhole analysis. 

The heightened scrutiny requires balancing all of the various interests and ultimately the Supreme Court said yeah, if you can’t pay then we can’t say oh well your probation is revoked until you can pay.  That that was not constitutionally permissible as a statute. 

So that’s the analysis that the 11th Circuit did.  They did one more thing that I think is really key.  Again, this will be upheld in the future, we’re gonna talk about the future of this decision in a minute, and that is the question of severability.  We’ve talked about that before, whether it’s a contract or a law, oftentimes you will ask okay, this one thing is bad.  Can this bad thing be severed out of a contract or a law?

Thomas:         Right.

Andrew:         And then should we still uphold the original contract or the law?  The test, obviously different legal environments, there are different ways of phrasing it, but the intuitive way to understand the test is, again, a fairness provision.  If I say hey, I’m gonna give you $100,000 in exchange for you granting me mining rights on this piece of property, and then I go and go to mine the property and it’s now a federally protected wetland, I go to court and I get the contract itself thrown out.  We say look, the reason I was giving you a hundred grand was to mine on the property, I can’t mine, therefore you don’t get my hundred grand.

Thomas:         Hmm.

Andrew:         It would obviously be ridiculous to say [Laughing] no, no, no, we’re legally tossing out the bit where you get to mine-

Thomas:         [Laughs]  

Andrew:         But there’s no law prohibiting you from giving $100,000 to somebody!

Thomas:         [Laughs] Yeah.

Andrew:         So go right ahead!  That would be ridiculous.  But when you’re talking about legislation, the question tends to turn far more in the direction – there tends to be a presumption in favor of severing out legislation unless it’s clear that something is an integral part.  You can save the legislation by severing out the unconstitutional bit.  We talked about that, for example in the NFIB v. Sibelius decision, which upheld the rest of Obamacare while maintaining the individual mandate on a different justification than that proffered in the original statute.

Here, I mean without going line by line, 6 pages starting at page 3, the 11th Circuit goes through and says okay, the Florida State Supreme Court said that paying fines was part of Amendment 4, so now the question is, is that part, which we’ve now said is unconstitutional, is that severable from the rest of the constitutional amendment restoring the franchise?

Thomas:         Hmm.

Andrew:         Or, would voters have not voted in the constitutional amendment if they knew that those who didn’t have to pay their fines would not have to pay their fines?

Thomas:         How are they gonna evaluate that?  Survey the public and be like “why’d you vote for this?”

Andrew:         No, what they said was they looked at the general purpose underlying the law and said the purpose underlying the law here was to restore voting rights to felons who had completed their sentences.

Thomas:         Mm-hmm.  That seems like a no-brainer to me.

Andrew:         Yeah!  Absolutely a no-brainer, 100% should be severable, there is a strong presumption in favor of severability, so yeah, we can cut out this onerous requirement tacked on by the legislature that wasn’t even spelled out in the amendment in the first place and still affirm, overall, Amendment 4 to the constitution, and that’s what they did! 

So this is a great decision, it’s a well-reasoned decision and it is – even if you are conservative, even if you disagree with the outcome, it’s an exceptionally well-written decision and one that I would encourage you to cuddle up with – an 80-page decision – and read it.

Thomas:         [Laughs] By the fireplace.

Andrew:         It’s cold outside!

Thomas:         Look, we know what you like to do with documents, Andrew.

Andrew:         We do. [Laughs]  

Thomas:         Don’t wanna spend time on it, it’s disturbing to some listeners.

Andrew:         Well, you know… [Sighs] Keep a set under the pillow.

Thomas:         [Laughs]  

Andrew:         This is a really, really good decision.  So I am setting you up for the question I know that you wanna ask.

Thomas:         Oh, well, how’s the Supreme Court gonna treat this one?  Are we just screwed?  It’s gonna be a great, thoughtful, well-written decision and then Kavanaugh’s gonna be like no, or something. 

Andrew:         So here’s what’s next-

Thomas:         [Laughs]  

Andrew:         Yeah, look, I’m nervous about that too.  There are a couple things you should know.  So the first is the 11th Circuit is a very, very conservative Circuit.

Thomas:         Huh.

Andrew:         But this was like going in and rolling three 1’s in the terms of the judges that got assigned.  The panel was Barbara Rothstein-

Thomas:         Oh it was just the liberals on the conservative circuit?

Andrew:         It’s even better than that.

Thomas:         Oh.

Andrew:         [Laughing] She is a senior status judge from the U.S. District Court of the District of Columbia sitting by designation in the 11th Circuit.  This happens, I don’t have time to go through all the crazy procedural rules where senior judges can get assigned to different courts, but not an 11th Circuit judge and assigned to the case by this byzantine process.

Then the other two judges are R. Lanier Anderson III, who was a Carter appointee who was on senior status, and then the third judge was Stanley Marcus.  Again, not a liberal, a conservative ’85 Reagan-appointee who was then elevated to the 11th Circuit by Bill Clinton back in the late 90s and is also [Laughing] on senior status.  So basically you had the platonic ideal of three judges on senior status who really were free to sit around and answer a tough legal question rather than think about the political implications of this.  Really what our framers intended-

Thomas:         Yeah.

Andrew:         In terms of giving judges lifetime tenure.  So an atypical panel, a clearly apolitical decision, and now Florida will have two options: they can petition for an en banc review by the entire 11th Circuit, which again, more conservative, or they can go straight to the Supreme Court.  In both cases-

So a couple of things here.  I think the 11th Circuit absolutely would take this case en banc, it’s a novel, unique, important case that has a lot of undecided law in it, and for the same reason I think the Supreme Court would grant cert.  But then the question is what happens to this judgment in the interim?  Remember that the burden shifts when you’ve won injunctive relief.

Thomas:         Yeah.

Andrew:         That now the burden would shift to the State of Florida to persuade a court under the same standard that the law is strongly in their favor, pending appeal, in order to stay the effect of this judgment.  And for all of the reasons why this is a tough case, are reasons why I could see the 11th Circuit and even our Supreme Court saying yeah, okay.  We’re gonna consider whether to grant cert, we’re gonna take a look at this case, but we’re not gonna stay this judgment from going into effect.

Thomas:         Mmmm.  Time for the election?

Andrew:         In time for the 2020 election.

Thomas:         Wow.  Well everybody’s gotta get registered and stuff.

Andrew:         Yes.  Absolutely folks will have to get registered.  Absolutely we will have to see.  This court will stay – I need to be 100% clear on this – this court will stay the effects of its own judgment pending appeal.  The judgment will not go into effect, and the 11th Circuit will stay its mandate, the decision came out a couple of days ago, in order to give the other side an opportunity to appeal.  That is typical, and fair. 

Thomas:         Mm-hmm.

Andrew:         You don’t want to say nope, going into effect right now, ha ha nothing you can do about it.  I have not seen – I’ve looked to see, this was entered yesterday as of the time of this recording.  I’ve looked to see if there was an order staying the mandate, that has not been entered yet.  It will be entered.  So there will be time, there will be about a month in which the other side will get the opportunity to either petition for en banc review or take a cert petition to the Supreme Court of the United States.  Again, this goes to the Supreme Court of the United States because it’s a question of interpreting the equal protection clause of the 14th Amendment of the Constitution. 

So we will see what happens, but we will know in a little over a month, in 30-45 days’ time depending on the stay order, whether either the full 11th Circuit or the U.S. Supreme Court will grant an emergency injunction staying this mandate from going into effect.  Keep your eyes on this space, we will obviously continue to cover that.  It’s possible that it won’t, and look, I’d love to tell you “it definitely won’t,” I can’t tell you that with this Supreme Court, but I can tell you this is a good decision from a tough environment and there is some chance that we will have a favorable environment in Florida in 2020.  That’s as good of news as you’re gonna get these days! [Laughs]  

Thomas:         Yeah, yeah. 

Andrew:         So sit back and enjoy it. 

Thomas:         Yeah.  [Sighs] It’s the tiny diamond in the middle of the massive piece of coal that we had to dig through.  I’m excited, sort of, about this, but at the same time is there gonna be damage done?  Where it’s like well, this should have been what, a year ago now or more where this should’ve just gone into effect and people should’ve been able to get ready to vote in the next election and to do what they need to do, I wonder how much damage is already done by all this and the fact that it could be another, like you say, month, month and a half before we even have any idea whether or not these people get to vote.  How much damage is already gonna be done by that, do you think?

Andrew:         A lot of damage is already being done by that. 

Thomas:         But maybe get out the vote?  Maybe there’s some efforts we can do, assuming things go our way in this, to get everybody registered in time?  Is there any BS other voter suppression law they’ve done?

Andrew:         [Laughs]  

Thomas:         Where you can’t register a year in advance or something?

Andrew:         Not that I know of, but again, not that I would put past anyone, so…

Thomas:         Yeah.

Andrew:         Yeah, look, it is important.  This is why we say stay active at the local level and don’t give up on fighting those fights.

Thomas:         Well nice job, Andrew, because you’ve just earned yourself a Wild Card Segment! Ding ding ding ding ding ding!

Andrew:         Alright!

Thomas:         Yeah!  You did it! 

Andrew:         [Laughs]  

Thomas:         [Announcer impersonation] And here’s what you’ve won!

[Commercial –]

Wild Card Segment – Writ of Mandamus Against Mitch McConnell?

[Segment Intro]

Thomas:         A questioner from listener Brian Brazil, who I hope is like the brother of Brody Brazil, the analyst for my San Jose Sharks – let me know, I could maybe score some tickets or something.  Anyway [Laughs] Would a citizen be able to obtain a writ of mandamus for Mitch McConnell to vote on all of the indefinitely tabled bills?  It doesn’t seem like a stretch to say that there is an abuse of discretion occurring or that they aren’t fulfilling their duties. 

Now the Negatron in me quickly is like, well no.  That’s part of the job of being a Senator or being the majority leader is you get to just do this, that’s part of your job, but since we’re asking the question maybe we’ll find out there’s more to it?  What’s going on?

Andrew:         Yeah, unfortunately Negatron Thomas is correct.

Thomas:         [Sighs] All hail Negatron, Negatron is always right. 

Andrew:         [Laughs]  Look, this super clever and plus 5 points for style.  Here’s the legal standard.  Remember, a writ of mandamus is when a government official has to do a thing but refuses to do that thing and you can go to court and say “umm, do that thing.”  The key lynchpin, whenever you’re thinking about mandamus, is if the official has any discretion in whether to do the thing or not then you can’t get mandamus.

Thomas:         Yup.

Andrew:         If it is ministerial, administrative, you can.  So let me give you a really, really good example in an area that has a lot of uncertainty to it.  Our episode 360, discussing the Equal Rights Amendment, the national archivist has to add a valid Constitutional Amendment to the Constitution in the National Archives, and so part of the relief that is sought in that lawsuit being brought by the State of Virginia and the subsequently ratifying States is “we want a writ of mandamus telling the archivist that he’s gotta write this down.”  That’s the kind of thing for which you can get mandamus.

Here’s how the legal standard is spelled out.  “A writ of mandamus is warranted when a party establishes one, that the right to issuance of the writ is clear and indisputable; two, that the party has no other adequate means to obtain the relief sought; and three, that the writ is appropriate under the circumstances.” 

Here the two main things where you’re Mitch McConnell writ is gonna fall short is number one on the discretion point.  Mitch McConnell gets to decide whether to table a bill or not, so you can’t mandamus him to untable the bill.  Even if you could there would be a standing problem, which is that generalized grievances that are not the invasion of a legally protected interest do not give rise to a cognizable injury under the law, that must be concrete and particularized.  What that means is standing to sue may not be predicated upon an interest which is held in common by all members of the public because of the necessarily abstract nature of the injury that all citizens share.

So what that means, and sorry, I don’t know that I would defend this position, but your screwing up all of our democracy for all of us [Chuckles] is the kind of thing that the Supreme Court has said does not give rise to standing, you have to say oh no, you’re harming me individually or me in this class of people in a very specific, concrete, and particularized way in order to bring your lawsuit. 

Super clever, I really like it, keep doing it because sometimes you send those through-

Thomas:         Well Brian Brazil, we tried.  We tried Brian Brazil, good job.

Andrew:         Folks have asked, and I have changed my mind on things where I look it and go “well obviously not that,” and sometimes “well obviously not that” is wrong. 

Thomas:         Hmm.

Andrew:         Sometimes I think that it’s clearly one way but when you look at the law you see, oh, you know what? Maybe not.  Not in this one, but keep sending ‘em in.

Thomas:         Alright, well good try.  Keep at it, maybe we’ll find that one weird trick.  In the meantime we’ve got to do what we do every Tuesday which is Top Patron Tuesday over on!

[Patron Shout Outs]

Andrew:         Thank you so much!  Again, remember, if you wanna be read out every single week on Top Patron Tuesday head on over,, sign up at the $5 bucks level and according to the terms and conditions therein we will read whatever embarrassing, sophomoric, hilarious, “Amanda Myballsitch” whatever!

Thomas:         [Laughs]  

Andrew:         We can be bought, and you should try and buy us.

Thomas:         Alright well now it’s time for T3BE the Answer!

T3BE – Answer

[Segment Intro]

Andrew:         Yeah, so Thomas, this was a question about a plaintiff suing a defendant regarding a written contract between an engineer and an owner to serve in the essential position of onsite supervisor, but before the contract can begin the engineer is injured and rendered physically incapable of performing.  He says hey, I can serve as the offsite consultant for the same pay.  Is the owner likely to prevail in an action for damages resulting from his failure to perform under the contract?

You narrowed it down to one “no” answer, B, no because the engineer’s physical ability to perform as onsite supervisor was a basic assumption of the contract, or D, yes, because the engineer’s duty to perform was personal and absolute.  I am here to tell you one of those two answer is correct.

Thomas:         Ooh.

Andrew:         Unfortunately your seven question winning streak comes to an end, this is a super super hard question.

Thomas:         Wow.

Andrew:         It is-

Thomas:         It was B!

Andrew:         It is B. 

Thomas:         I only narrowed it town to B and D because B was so confusing that I was like, well, since none of the answers look amazing maybe it’s that one and I don’t know why, so at least I did that.

Andrew:         So here’s the thing.  The key, and this is super hard, but look, the bar is hard so this just underscores just how good your seven-question winning streak was.

Thomas:         Oh, thank you!  Appreciate it.

Andrew:         The key word in the question is prevail in an action for damages.

Thomas:         Damages, yeah I- [Sighs]

Andrew:         In this case, what happens is the engineer is not in breach of the contract because incapacity to perform your duty under a contract renders that performance – this is called the “defense of impracticability,” and operates as an excuse for nonperformance. 

Thomas:         Okay.

Andrew:         So no damages against the engineer, it’s not his fault that, you know.

Thomas:         Yeah.  You know, I actually zeroed in on that initially and I wasn’t sure, I was a little confused on it.  Sounds like I should’ve listened to my instincts a little more on that.

Andrew:         Yup.  Look, he’s not gonna have to pay the guy! [Laughs]  

Thomas:         Right, but he’s not getting damages –

Andrew:         But he’s not gonna get damages even though he’s essential to the contract.

Thomas:         Yeah. [Sighs]

Andrew:         So then the question is, is-

Thomas:         But I’m not sure why that – okay, so if you’ve – okay… huh.  So if I had known it was a “no” answer on that logic I probably would’ve guessed B because A doesn’t really sound like the right reason.

Andrew:         Well A is wrong as the matter of law.

Thomas:         Yeah.

Andrew:         So A says no because the engineer offered a reasonable substitute.

Thomas:         Dude!  I’m not a lawyer!

Andrew:         [Laughs]  

Thomas:         I’m talking about how I would narrow it down as a non-lawyer!

Andrew:         [Laughing] Fair enough.  But A says that you offered a reasonable substitute by offering to serve as an offsite consultant, that is not an excuse for a breach of contract, when you do less than what the contract asked for, even if it’s reasonable, that does not excuse a breach.

Thomas:         … okay.  Can you explain B?  I don’t think you really explained that.

Andrew:         Okay.  So… [Laughs]  The way it works is the fact that the onsite service was a basic assumption of the contract means that offering less than the ability to serve as the onsite supervisor is not a reasonable substitute. 

So let me give you an example of what constitutes a reasonable substitute.  You agree to buy 1,000 apples from my orchard, my truck breaks down – and I say I’m gonna bring it by a truck that has my name on the outside or whatever, and then my truck breaks down so I bring you the apples via a different truck.  It’s a different way of complying with the contract, but it’s exactly the same thing, you still get your apples on time so that is a reasonable substitute for my performance.

Thomas:         Yeah.

Andrew:         I have properly performed under the contract. 

Here, I can’t perform under the contract because I’m hurt, I can’t be onsite.

Thomas:         Mm-hmm.

Andrew:         When I offer to go offsite I am not performing, I am in breach of that contract.

Thomas:         Yeah.

Andrew:         But the question is, is my breach excused or not?  So I am excused by virtue of the fact that I physically can’t do it, the law doesn’t require me to do a thing that’s impossible for me to do.  The wording is super-duper tricky.

Thomas:         Yeah, that’s a really tricky wording, and I-

Andrew:         It really is.

Thomas:         Again, I zeroed in on that from the beginning, but I couldn’t quite – gosh, I almost could’ve guessed B.  I was so close because it’s so confusing I thought there was something – usually even the wrong answers you can get the logic of them, they’re not usually gobbledy-gook, and I just couldn’t even figure out why that wording was-

Andrew:         Yeah, it was-

Thomas:         I still don’t entirely understand it.  So you said the key was damages, right?

Andrew:         Yup.

Thomas:         So … you don’t get damages because-

Andrew:         Because the nonperformance is excused.

Thomas:         ‘Cuz the … how?  How does that answer mean-

Andrew:         [Laughs]  

Thomas:         Because if the answer says because the engineer’s physical to perform as onsite supervisor was a basic assumption of the contract.

Andrew:         Right, so that means that it is a key, material term of the contract. 

Thomas:         Okay.

Andrew:         So anything less than physically being able to perform as onsite supervisor does not comply with the contract.

Thomas:         Right.

Andrew:         So the first part is, is he in breach?  The answer to that is yes.  Then the second half is is that breach excused?  And the engineer’s-

Thomas:         And so the answer is saying because the physical needing to be there is so core to the contract then yes it’s excused?

Andrew:         It leaves out-

Thomas:         That’s what it tries-

Andrew:         Look, I’m really glad we’re doing this, because the answer leaves out that justification.  It leaves out the yes, this is crucial to the contract and his inability to do that is excused because of his physical limitations.  Bar answers sometimes do that.  Sometimes what you have to do is figure out the best of a group of bad answers.

Thomas:         Yeah.

Andrew:         Here, when you go through and analyze it properly, the answer is no, and B is a better “no” answer than A.

Thomas:         Yeah.

Andrew:         I agree with you, B is written incredibly badly.

Thomas:         Yeah, I still can’t quite figure out-

Andrew:         And I will tell you this, a tip on the bar exam is when something is written [Laughs] When something is written incredibly badly, it’s either written badly because it’s the right answer and it’s trying to throw you off, or [Laughing] as an attractive distractor.  But it’s definitely not one you should ignore!

Thomas:         [Laughs] Yeah, no and I almost got there!

Andrew:         You did, you did!  You did great!  It’s the same rule as the, like-

Thomas:         We’ve gotta grab the Mystery Men quote where he’s like “they’re either very smart or very dumb.”

Andrew:         That’s right!  And I have told you this on several occasions but I’ll repeat it again because we get new listeners that come into the show.  The same thing is true on the bar exam when you have an unbelievably stupid-

Thomas:         Yeah.

Andrew:         -sounding answer.  One time out of four it’s just the stupid answer.  The other three times it’s like, what kind of a lunatic wrote these answers?  But one time in four the stupid, simple answer is the correct one.  So this is the corollary of that, that sometimes the overly complex answer is the best, sneaky way to put it in.

Thomas:         Gosh!  It’s heartbreaking.  Ah!  I was close.  I mean it would’ve taken incredible guts to guess B, because-

Andrew:         It would have.

Thomas:         Yeah, such a weird… but I came about as close as I could’ve, you know?  In that I got right away the language was weird, I saw the damages part, I was kinda puzzling through that, but not quite there.  That’s the difference between a lawyer and a guy who just has some decent instincts.

Andrew:         This is a super, super hard question.

Thomas:         Very hard question.  Alright.  The streak ends.

Andrew:         Yeah.  Get back on that unicycle!

Thomas:         I lost, it wasn’t like an upset.  I didn’t lose to the worst team in the league, I came up against the Patriots and I fell short or something like that.

Andrew:         Yeah.  Next time I’ll bang a trashcan on the right answer.

Thomas:         No, never!  Sanctity of the game.

Andrew:         Sanctity of the game.

Thomas:         Alright, it makes the 7 question streak that much more beautiful, that it happened and we can all enjoy it and now it’s gone and maybe will never happen again, we’ll see.  Alright, it’s over.  Let’s check in the time machine and see who won!  I wonder who got this right, feels like it’s gotta be a lawyer! [Laughs]  

Andrew:         [Laughs]  

Thomas:         Maybe a normie got this one, we’ll see!

[Segment Intro]

Andrew:         Well Thomas, a lot of folks played along this week and some folks followed your train of logic.  A lot of people managed to actually catch that the significant phrase in the question was “damages against the poor injured engineer,” and we had a variety, we had some really really funny ones, some great pun loaded ones, for example. 

Jeremy Magai wrote in with a really fantastic answer, but I think we’re gonna give the win this week to the earliest and most concise answer from Dan Rose, who writes “I’m going with B, the engineer didn’t breach the contract – the contract just no longer makes sense.”  While that’s not the best legal analysis I thought it was a really, really good intuitive analysis that matches up with the legal result.

So congratulations Dan for being this week’s winner, and everyone give him a follow.  That is @rotuami on Twitter, and congratulations for being this week’s winner, Dan!

[Segment Outro]

Thomas:         Alright, thank you so much for listening everybody.  Please support this show on, it’s what makes the show go.  Every week I’m amazed at Andrew’s preparation and ability to deliver two full episodes of insight in the way that he does and if you like that as much as I do, hop on over to Patreon, support the show.  Alright, we will see you folks on Rapid Response Friday!

[Show Outro]

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