Transcript of OA370: Can Trump Cancel the Election? and Other COVID-19 Questions!

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 370.  If we sound any different that’s your imagination, because we always record in quarantine!

Andrew:         [Laughs]

Thomas:         We have to change exactly nothing about the method of recording, just the amount of kids that are around.  How’s it going?

Andrew:         [Laughs] It’s going fantastic, Thomas!  I mean, I’m definitely 100% sick but I feel like I’ve gotta stay committed that bit.

Thomas:         Signature optimism!  You literally have the coronavirus right now-

Andrew:         Oh yeah.

Thomas:         -and the world is melting down and Andrew’s like “I’m great!”  Doing great!

Andrew:         Yeah.  I just love doing the show, what can I say?

Thomas:         Well, I do too. 

Andrew:         [Laughs] I know you do!

Thomas:         I love it even more now that it is a brief respite from raising two kids.  You know, I love my kids, but oh my god!  It is much better, life is better when some people can look after your kids for a portion of the day and now that’s not happening for the foreseeable future. 

Andrew:         I thought you were gonna say you like it better now that we’re not all Trump all the time and we’re 90% coronavirus, 10% Trump.

Thomas:         I’m still so mad about A, the fact that his ineptitude and just corruption and everything, his – what’s the best word for it?  His shortsighted desire to try to fix the markets for another day or two is going to lead to probably – who knows?  10,000?  100,000?  Any number of thousands of extra deaths that didn’t need to happen.  So I’m mad about that 24/7.

Andrew:         Uh how about also the racism in calling it the “Chinese” virus?

Thomas:         Sure.

Andrew:         I’m mad about that.  And how about the fact – to paper over the fact that Trump’s economic policies are a disaster, we’ve basically blown our load in terms of what kind of fiscal stimulus the fed can do in terms of – you can’t reduce interest rates below zero, so… um…

Thomas:         I mean we already delivered a trillion-and-a-half dollars back to rich people in 2017, so we don’t have that money.  That could’ve been useful.

Andrew:         That didn’t directionally change the markets at all, by the way.  Literally, you plot the graph from Obama to Trump pre-coronavirus and it is a straight single variant line and you cannot pick out the time in which it was like “oh, here was a massive $1.5 trillion infusion into the economy.”

Thomas:         But you know what the worst part about it is, Andrew?  All that is awful.  The worst part is all of these Fox News A-holes and Trump are gonna make a pivot – and they have.  “Oh I knew it was a serious virus the whole time.  Definitely we’re on top of it.”  And polls come out and it’s like “yeah, Trump’s doing a great job!” or it’s about the same.  It’s the same percentage you would expect from anything else in our partisan, in a duopoly of narratives or whatever.

Andrew:         Yeah.

Thomas:         Everyone thought – you saw the articles that were like “this is gonna be the thing, this finally takes him out because he’s so inept, he’s cost lives.”  I dunno!  I don’t know, everybody, so vote in November if … in fact we hold an election in November. 

Andrew:         [Laughs]

Thomas:         And that’s what we’re gonna talk about because we’ve got to get to our show, which is many things but it’s also your coronavirus questions.  That is if you’re a patron on, we put up a question thread, we got great – a ton of tremendous questions and I think this is great because we’re not gonna try to be doctors or anything but there are plenty of interesting Andrew-type questions about coronavirus.  Lots people wanna know, especially around employment.  Are people’s jobs safe?  There’s so many interesting and important legal questions that I’m glad we are doing this show and we got our resident Andrew Torrez, expert, to help us!

Andrew:         [Laughs] Well I’m looking forward to that.  We’re going to do something a little different in this episode, which is we are going to record back to back.  We’ve got an intro segment, we can never leave Yodel Mountain, so we have an intro segment on the previously pending criminal indictment against Concord Management and Consulting and then after that we’re gonna take your questions.

We’re gonna do a special double-length episode which patrons will get all at once today and then to make up for that – normies, don’t worry, you’ll get the second half of the episode at our regular time on Tuesday, but if you’re self-quarantined we thought we would get that first episode out early to patrons.  So you have something coming out on Tuesday we also have the audio of my talk before the Houston Oasis group.

Thomas:         The last talk at the end of the world! [Laughs]

Andrew:         Yeah, literally, it might have been the last gathering of humans!  And that talk is called “We’re All Gonna Die,” but has nothing to do with coronavirus!

Thomas:         [Laughs] It’s gonna sound quite silly and delightful!  Huh, remember when we were gonna die of something other than coronavirus?  Those were the days.

Andrew:         Yeah!  I’m really proud, I put a lot of work into that talk, we’re gonna upload the slides as well and I think you’ll enjoy it.

Thomas:         That sounds great!  What a great plan!  Well, with that said, let’s get to our first segment which will be a brief tryst on Yodel Mountain before we go to Corona Mountain.  COVID-Mountain, it’s a whole different mountain.

Andrew:         Yeah, Corona Mountain sounds like it’s a Cinco de Mayo! 

Thomas:         Yes! [Laughs]

Dismissal of Indictment Against Concord Management and Consulting

[Segment Intro]

Thomas:         Okay so up first before we get to the other stuff, I saw this story, a lot of people saw it and it was one of those things where I didn’t know what to think.  I’m kinda maxed out, I’m following this coronavirus so much, I’m trying to read as much as I can.  Obviously, like everybody, I’m pretty worried and all that, then I see this flash news headline that’s like “Department of Justice decides not to go after the Russian company that did the hacking.”  Something to that effect and I thought “I don’t have time to process this, I don’t have the mental energy to process this!”

Are they squeezing this in while everybody’s occupied?  Is this a corrupt thing?  Or is Andrew gonna tell us this is actually totally fine and we shouldn’t worry about it?  So which is it, Andrew?  [Laughs]

Andrew:         [Laughs] Well fortunately I do have the time and desire to track these kinds of cases.

Thomas:         Ha ha!

Andrew:         Let me lay out the facts.  I’ll spoil the conclusion, which is I think it’s mostly okay?  But there are a couple of question marks that I just wanna raise, and I will tell you, 100% disclosure when it flashed across my screen because I’ve got various ticklers set up for important cases that we follow on Opening Arguments.  My initial response was “oh yeah, Bill Barr is gonna Bill Barr and is trying to hide doing a favor for the Russians while everybody is focused on coronavirus.”

There is some reason to be skeptical, but there are lots of other reasons to think that maybe this isn’t nefarious.  So let’s break it down.  On this Monday, March 16th, the federal government moved to dismiss the Mueller probe’s indictment against two Russian companies: Concord Management and Consulting, LLC and Concord Catering.

Thomas:         [Laughing] Catering?

Andrew:         Yeah.  I realized.  They’re both owned by the same Russian oligarch.

Thomas:         Is it just that they [Laughing] Russian hackers have a legitimate catering business on the side that they actually care a lot about? 

Andrew:         [Laughs]

Thomas:         Like, gosh, I wish they wouldn’t be doing that hacking on the other side of this company because this catering is top notch!  Hire us for your wedding, everybody!

Andrew:         [Laughs] There’re pigs in a blanket!  It’s just so good!  No, I believe, and people are welcome to correct me if I’m wrong on this, but I believe that the catering company is another false front.

Thomas:         [Laughs] Oh the company board meetings would be hilarious.  What’s your division doing?  Well, we’re interfering with elections, we’ve got all this stuff.

Andrew:         We’re really big into taquitos these days! [Laughs]

Thomas:         [Laughs] We’re working on how to keep those little candles lit longer under the tins because it really keeps the food nice and fresh for that second hour of sitting out there!  It’d be a weird meeting!  But no, so not that?

Andrew:         No, not that.

Thomas:         Okay.

Andrew:         And folks may recall – so this is part of a larger indictment against 13 named Russians and the Internet Research Agency.  Those indictments are still pending, so those cases are going forward.  This is a motion to dismiss out only the Concord entities. 

You may recall that Concord Management and Consulting has been a bad actor throughout this process.  They have taken discovery and have altered it and used it.  Their mission is “interfere in U.S. elections,” and so they continue to do that while serving as a criminal defendant.

Thomas:         So that is actually active in the process?  Because I wasn’t sure.  I thought back when they indicted all these different Russians I thought the idea was “well they’re never gonna see a day in court, it’s not like this is gonna go anywhere, they’re just doing this to show here’s the people who did stuff wrong.”  So had these people actually been participating in this criminal justice system?  From Russia?  Or are they here?

Andrew:         Indeed.  So here’s the way it’s happened.  Concord Consulting is also owned by the same oligarch, Yevgeny Prigozhin.  They have not appeared.  But Concord Management hired lawyers in the U.S. and they have appeared in “court” in quotation marks.

Thomas:         Wow!

Andrew:         They are denying that the court has jurisdiction over them, but they have hired U.S.-based counsel to lie in open court on their behalf.

Thomas:         Huh!  I had no idea! 

Andrew:         So one of the things that happened was over a year ago, January of 2019 – so this is after Bill Barr is Attorney General but while the Mueller probe is still going on.  There was a Motion for Protective Order that the government filed because Concord was (quote) “altering and disseminating discovery as part of a disinformation campaign aimed at discrediting ongoing investigations into Russian interference in the U.S. political system.”

In other words, what that means in English was, we’ve talked about on this show, when you’re a criminal defendant you have certain rights to discovery.  The government has an obligation to turn over any information that might be exculpatory, that is Brady material after Brady v. Maryland.

Thomas:         Right.

Andrew:         You can serve interrogatories, you can take depositions, and you can serve requests for production of documents and the government has to turnover certain categories of documents.

Thomas:         Ah.

Andrew:         Right.  So that’s what Concord Management was doing.  They would serve interrogatories, get documents, and then take those documents, alter them, put them out on the website and say “see?  The entire Mueller investigation is a sham and a witch hunt!”

Thomas:         [Sighs]

Andrew:         Right.  Exactly.  So, look, there are different ways that you could respond to that in a prosecution.  One of the things that you could do is you absolutely could filter all discovery through the court, for example.  You could say, okay, we’re gonna turn things over in camera and only to the representatives of the party.  But at the end of the day, what this pleading says – and this motion to dismiss was filed on March 16th and granted the same day.  I’m gonna talk about the standard there in a minute.

It says look, this is a Russian-based company, they haven’t been playing by the rules.  They don’t have any assets in the United States, we don’t think that there’s any meaningful chance that we can get a conviction that would matter, and if the owner, Prigozhin, steps foot in the United States we still have a pending indictment against him.

Thomas:         Oh, of him personally?

Andrew:         Yeah, right. 

Thomas:         Okay.

Andrew:         So he can be indicted, he can be arrested.  He has been indicted, he can be arrested, he could be extradited to the U.S.

Thomas:         [Chuckles] Yeah.  Oh like if he goes in some friendly country?

Andrew:         Yeah. 

Thomas:         Gotcha.

Andrew:         Right, right.  Yeah, if he vacations in the Swiss Alps or something like that.

Thomas:         [Laughs]

Andrew:         So it is our judgment that because Concord is abusing the discovery process we’re just gonna dismiss it out, we don’t want to maintain this prosecution because it’s-

Thomas:         Pointless!

Andrew:         Yeah it’s undermining national security and it’s pointless at the end of the day, that’s right.  The standard here is federal rule of criminal procedure 48(a) which says “before trial courts do not evaluate the propriety.”  This is prosecutorial discretion, if the government moves to dismiss a case then the only thing by and large that a court looks for is to protect the defendant against serial abuse.  Bringing charges going all the way to the eve of trial, particularly where we have a system of largely pretrial detention in this country, then dismissing the charges letting you go, bringing new charges again- you could see how that would be abusive.

Thomas:         Mm-hmm.

Andrew:         So courts do intervene in those kinds of cases, they don’t intervene in cases like this, so as I said, the motion to dismiss was instantly granted.  Now is there something potentially fishy? 

First, let me give you the evidence against there being anything fishy.  First is the story, which I think is plausible.  Makes sense.  I made a good case for it.

Second is the fact that this pleading was signed by Heather Alpino, who is a DOJ lawyer in the National Security Division who worked very closely with the Mueller investigation.  And by Adam Jedd, and if that name sounds familiar, Adam Jedd was one of the four prosecutors who resigned when Barr put his thumb on the scale in and ordered-

Thomas:         Oh!

Andrew:         -a supplemental sentencing memorandum for Roger Stone.  I trust Adam Jedd.  He’s already taken a stand and the fact that he affixed his name to this pleading is, I think, very strong evidence as is the Alpino signed.  This is not coming from Bill Barr’s hacks.

Thomas:         Gotcha.

Andrew:         But there is a weird thing that’s in the pleading.  It’s stated in the summary section and it’s repeated again on page 7 and nobody else has picked up on this, partially for the reason that I’m about to read.

Thomas:         Because … we’re all distracted.  [Laughs]

Andrew:         Well, yeah, because we’re all dead from coronavirus.

Thomas:         The only one with document dedication like Andrew Torrez is gonna pick it up!

Andrew:         [Laughs] So here we go.  It says “upon careful consideration of all the circumstances” and this is the crucial part, “and particularly in light of recent events and a change in the balance of the government’s proof due to a classification determination as well as other facts described in more detail in a classified addendum to this motion,” which, by the way, we don’t have access to because it’s classified.  “The government has concluded that we should drop the proceedings.”

Thomas:         Hmm.

Andrew:         So a piece of information crucial to the prosecution of Concord Management was recently classified.  There was a change in the decision to up layer it, to go from being unclassified to being classified.

Thomas:         That’s really weird.

Andrew:         That’s a presidential determination.  Again, the President doesn’t unilaterally determine everything, but the President has plenary powers over whether information is classified as Commander in Chief, is classified as being highly confidential for reasons of national security.  He took an important piece of their case and classified that information.

Again, I say “he,” this could have been administrative.  The mechanisms of government for classifying information by our various intelligence agencies, this doesn’t necessarily mean that this was a Trump action.   But it is a change.  It is a difference and continuing the prosecutors then say “that forces the prosecutors to choose between a materially weaker case against Concord Management and the compromise of classified material.”

Again, you can put on classified material in a criminal case but you can’t hide it from the defendant! [Laughs]

Thomas:         Right.  [Laughs]

Andrew:         So you can lock down the courtroom but if Concord’s lawyers are treasonous, if their representatives are funneling information back to the client – which we know they are – then you do have to reveal it to them.  I wanna do the Politifact meter, here. [Laughs] I wanna say that there are very good reasons to dismiss out this case.  The story as I articulated to you makes sense and I can get behind.  It was signed by prosecutors that I respect and I think are above reproach.  But that’s weird.

Thomas:         Yeah.

Andrew:         And again, at the end of the day, it is dismissing out an indictment against a bad actor-

Thomas:         Yeah!

Andrew:         -for being a bad actor! 

Thomas:         Yeah.  “Well if you’re not gonna play then fine!  I’m not gonna prosecute you” thing.  That seems – yeah, but I guess… I dunno.  That makes sense.  Is there any way we could ever learn what this classified thingy is?

Andrew:         Yeah!  Our next President, probably Joe Biden-

Thomas:         He’s not gonna remember! [Laughs]

Andrew:         [Laughs]

Thomas:         There’s a lot that’s gonna be on his mind, I think.

Andrew:         Will have the power to declassify documents.  So until this document is declassified – I mean, make the crack and it’s not a bad one, but at the end of the day I do believe that the next administration will commission a task force to review classification of material during the Trump era.

Thomas:         Interesting.

Andrew:         Unless these people all set everything on fire on their way out, which … you know, strikes me as plausible.  It’s hard to burn every last copy.  That’s part of what the investigation into Ukraine indicated, and we know that those documents are there, we know… so that’s going to happen in my view in our next presidential administration, but until then we will not get access to that document.

Thomas:         Alright, well interesting stuff.  But I think it’s time we get to the starring figure in our foreseeable future, the coronavirus!  COVID-19.

Andrew:         Yeah, we’ll take a break in the middle and do T3BE just like regular.

Thomas:         Oh, okay, I wasn’t sure.

Andrew:         Yeah, let’s do some questions.

Thomas:         But if I get it wrong I’m gonna start coughing and just pretend that it’s ‘cuz of the virus.

Andrew:         Well obviously, I would expect nothing less from you Thomas.

Thomas:         I suspect I will someday be able to know for certain whether I already had coronavirus or not! [Laughs] What are the, you know?  Oh by the way, should we mention that people wrote in to say from last time that Thomas was right and Andrew was probably wrong?  It’s unlikely that you’re gonna get re-infected again?  It’s possible but-

Andrew:         Yeah, I think you were mostly right and I was mostly wrong.  But there are multiple strains so yeah, you can’t get the same strain twice but you can get a parallel strain.

Thomas:         I don’t think there are multiple COVID-19s?  What do you mean?  I think there’s a chance of re-infection but it’s low.

Andrew:         I thought – this is paving our way for another Andrew Was Mostly Wrong.

Thomas:         Here we go!  Send in the emails, scientists!

Andrew:         My understanding from our scientist and doctor listeners was that within the strain of COVID-19 there are sub-strains, that there are geographic locations and that’s part of the reason why – ‘cuz my initial analogy was you can get the flu multiple times and-

Thomas:         There’s a lot more strains of flu, though.

Andrew:         Right, there are a lot more strains of the flu.

Thomas:         Well okay, so doctors write in!  My explanation that I had read that actually I think was from another source was that getting re-infected has more to do with your own body and whether you built the antibodies or whatever in the process.  Some people are better or worse at that or you can lose them over time and that’s why you would get re-infected, not because there’s another strain of COVID-19.  So doctors write in, there’s our positions!

Andrew:         Alright!  [Laughs]

Thomas:         We’ll see!  Anyway, we’re not gonna be doctors, we’re not even gonna play them on TV or anything.  I mean, I would if any roles-

Andrew:         You’re handsome enough to play a doctor on TV!

Thomas:         Oh, thank you! 

Andrew:         I think so.

Thomas:         Appreciate it!  But we are going to get some answers from Andrew about the legal questions that everybody has been asking on our patreon!

[Commercial –]

Thomas:         So step one, here we go!

Coronavirus Questions Part 1

[Segment Intro]

Thomas:         Shoot!  Do we need a COVID intro? [Laughs]

Andrew:         [Laughs]

Thomas:         Brian, see me after class, maybe we’ll make one, I dunno.  Maybe you already heard one.

Andrew:         Yeah! 

Thomas:         Don’t know what it would be.  I also don’t know how I will do it with the kids monkey-bars hanging off of me at all times, but I can try.

Andrew:         [Laughs] In Brian we trust.

Thomas:         Yeah.

Andrew:         I am sure that he will come up with one, and that lovely intro that we just heard?  I’m presuming?

Thomas:         [Laughs]

Andrew:         Gives me a chance to kind of give an overview to all of these questions.

Thomas:         Okay, gotcha.

Ex parte Milligan Case Law Review

Andrew:         I think it’s really important to note that there is a governing principle that I want you to keep in mind.  It’s a case called Ex parte Milligan from 1866.

Thomas:         That sounds familiar.

Andrew:         Yeah, some – Lawrence Tribe has talked about this, this is not original to me, but I think it really is important to keep it in the forefront as you’re applying your OA skeptical legal toolkit to stories that come up in between listening to this episode and when we record next.  That’s this:

So an 1866 case, you can probably guess what it was about. [Laughs] It was about the Civil War, and in particular during the Civil War President Lincoln suspended the writ of habeas corpus.

Thomas:         Hmm.

Andrew:         He declared martial law, and one of the things he did was ordered military tribunals for dissenters and confederate sympathizers and people in open rebellion against the United States.  One of those dissenters was a lawyer with the delightfully old-timey name of Lambdin P. Milligan.

Thomas:         [Laughs]

Andrew:         Which is just!  I know that’s gonna show up in next week’s patreon names.

Thomas:         Yeah.

Andrew:         Lambdin P. Milligan who was part of the Sons of Liberty, and yeah he was a racist clownhorn.  He was a horrible, terrible human being and he was charged with conspiracy against the United States, aiding and abetting the Confederacy, inciting insurrections, you know, the whole nine yards.  But he was tried in a military tribunal after the suspension of habeas corpus and the declaration of martial law. 

Milligan was a lawyer.  He was a racist scumbag lawyer, but he was not engaged in armed insurrection against the United States.  He was out there, part of the Sons of Liberty.  I’m just picking Sons of Anarchy crossed with Confederates in the background.

Thomas:         So the same?

Andrew:         [Laughs] But 1866 so there were no motorcycles.

Thomas:         Oh, yeah.

Andrew:         In any event, military tribunals – and I’m painting with a broad brush here, but they suck.  Particularly if you’re a defendant.  They convicted him and they sentenced him to hang by the neck until dead.  Then fortunately he was not immediately hung and the Civil War ended, which was a good thing, and Milligan sued in order to stay the execution, arguing that he should not have been prosecuted in a military tribunal. 

The Supreme Court agreed with him.  They said look, martial law doesn’t suspend the constitution.  As long as there are civilian courts out there operating you can’t just say “well we’d rather try this guy in a military tribunal because he’s hostile to the United States,” so they let him go.  They vacated that conviction.

Thomas:         Wow.

Andrew:         So I wanna emphasize that.  As we talk about the limits of governmental powers and what happens during a national emergency, especially – I get it, there are lots of reasons to be skeptical or even afraid of Donald Trump.  The constitution applies during states of emergency.  The constitution applies during declaration of martial law (which hasn’t happened), the constitution applies in the most- if it applies during the heart of the Civil War, it applies during a coronavirus!  You should take comfort in that fact.

Thomas:         Yeah, but did they have four total conservative hacks in the Supreme Court during the Civil War?! No, we’ll see.

Andrew:         Again, there may come a time when law means nothing and this podcast will just be me screaming into the void for 90 minutes! [Laughs]

Thomas:         [Laughs]

Andrew:         I mean, moreso.  But screaming less coherently into the void for 90 minutes.

Thomas:         No it’s me, I do most of the screaming into the void on this show and then you try to pick up the pieces.

Andrew:         There you go!

Thomas:         And tell us we’ll all be okay.  But if and when law doesn’t matter anymore then we can both scream together.  Or maybe we’ll switch roles, I’ll just be like well, yeah.  [Laughs] I’ll come up with something!  Anyway here we go!

Andrew:         It’ll be a survivalist podcast. 

Thomas:         [Laughs]

Andrew:         You can be the optimist about “look, here’s this simple way to build a fire out of household materials!”

Thomas:         I’ll be like “Andrew, stop screaming into the void!  [Whispers] They can hear us!”

Andrew:         [Laughs]

Thomas:         Okay, here’s our first line of questioning.  I kind of broke it down into … nine topics? 

Andrew:         Oh good!  Good.

Thomas:         Yeah, we’ll see how long it takes you to get through that. There’s also sub… topics?  Questions that I have?

Andrew:         And we’re a trim half-hour into this show already!

Thomas:         Yeah, but we get a whole other episode to tackle this.

Andrew:         Oh, good point.  Good point, alright.

SUBSUBHEADING – Question One:  Excuse for election tampering?

Thomas:         So, question one: Is there any danger of Trump using this emergency to mess with the general election in any way?

Andrew:         [Inhales] Okay.  Let’s tackle the general election – I do wanna talk about the primaries too.

Thomas:         I was gonna ask you about the primaries.

Andrew:         Well we’ll start with the general election.  Donald Trump cannot reschedule the general election.  I’m going to show you that.  That is a matter of statute, it is 2 U.S.C. § 1, [Laughs] which is a law passed in 1875.  We typically would say, like 42 U.S.C.-

Thomas:         Yeah.

Andrew:         § 1378.  This is 2 U.S.C. § 1 and the first book is like an introduction to the U.S. Code for dummies. 

Thomas:         [Laughs]

Andrew:         Title 2 is “The Congress” and it is the first set of laws and this is the very first law that they passed.  Sections 1 and specifically section 7 which says “Time of Election: The Tuesday next after the first Monday in November in every even-numbered year is established as the day for the election in each of the states and territories of the United States of representatives and delegates to the Congress commencing on the third day of January next thereafter.” 

Section 1 says – it was amended because remember that Senators were not directly elected until the 20th Century!

Thomas:         Oh yeah!  That’s right.

Andrew:         So House of Representatives and the Senate and the presidency are all provided.  I’m about to read the statute for the presidency.  Are all provided by an Act of Congress as authorized by the Constitution.  What that means is that cannot be changed without a subsequent act of Congress.

Thomas:         Yeah.

Andrew:         So Donald Trump cannot do that unilaterally, and Act of Congress means Nancy Pelosi has to sign off on it.  Could they amend 2 U.S.C. § 1 and 7?  They could do that but it would require the consent of the House of Representatives.

Thomas:         Why did I think that this was in the Constitution?  I thought they – didn’t they give the date of the elections?  Am I nuts?  I thought it was in the Constitution itself.

Andrew:         No, the date of the election is not fixed in the Constitution.

Thomas:         Hmm.

Andrew:         You might be thinking of Article 1 Section 4 which says that Congress “shall assemble at least once every year and each meeting shall be on the first Monday in December.”

Thomas:         Oh.

Andrew:         “Unless they shall by law appoint a different day,” which they have.

Thomas:         Oh I’m thinking of – didn’t you say it’s in the Constitution that the presidency starts on the January whatever?  The delay between?  Didn’t we talk about that where it has to be – the lame duck period?  Didn’t we have a question about that?

Andrew:         We’re gonna talk about that, but that too is a law.

Thomas:         Oh it’s a law!  My mistake.

Andrew:         It’s one of these – part of it is because these are super old-timey laws.

Thomas:         Yeah.

Andrew:         So it sounds like – when you hear “shall be on the second Tuesday after the first”- you think of it as being in the same.

Thomas:         Yeah, that was in the bible! [Laughs]

Andrew:         [Laughs] Right!  Exactly right.  So Title 2 of the U.S. Code is “The Congress.”  Title 3 of the U.S. Code is “The President.”  These are the first laws that apply to the President and 3 U.S.C. § 1 says “the electors of President and Vice-President shall be appointed in each State on the Tuesday next after the first Monday in November in every fourth year succeeding every election of a President and Vice-President.”

Thomas:         So what were they doing for the first 80-some odd years?

Andrew:         [Laughs]

Thomas:         Were they just like “hey, you guys wanna have an election?”  “Yeah, it feels about right.  Let’s have one now.  Seems like the right time.”

Andrew:         [Laughs] Well again, in the first 100 years or so-

Thomas:         I think the groundhog saw its shadow, they had an election.

Andrew:         [Laughs] You just didn’t have the same formalized U.S. Code system.

Thomas:         Okay.

Andrew:         Because the federal government was so much smaller, and once we were post-industrialization and it was clear that we were gonna need to standardize our laws otherwise it would just be like sort of pages of crazy books and the job of a lawyer was already super hard and they were like “why don’t we make it a tinier bit easier for these folks?”

Thomas:         Gotcha.

Andrew:         The fact that lawyers were presidents probably assisted in that.

Thomas:         [Laughs]

Andrew:         So no, I’ve just read you the law that says that Donald Trump cannot move the election.

Thomas:         Okay.

Andrew:         But now, our listeners wanted to know, what if instead of moving the election Trump just cancels the election?

Thomas:         Well that feels like the same answer would apply, wouldn’t it?  If it says it happens on this day and time in the law then you would still need Nancy Pelosi’s pen.

Andrew:         So … no.

Thomas:         What?!

Andrew:         As it turns out.

Thomas:         Is this a weird trick that’s gonna end our democracy?  Cool.

Andrew:         It’s a weird trick that’s not going to end our democracy.

Thomas:         Oh.

Andrew:         But here’s the thing as far as I can tell.  Some aspects of the law require you to hold an election.  Others will say if you hold an election it has to be at X particular time.

Thomas:         Oh!  [Sighs]

Andrew:         So think of this in a practical sense.  That is Donald Trump, as Commander in Chief, martials up the National Guard and orders them a la George Wallace standing at the gates of the University of Alabama and says “our orders are to shoot on sight anybody that tries to enter these polling places.”  And physically prevents the election from taking place.  Worst case scenario.  Again, I do not … [Sighs] [Laughs] I’m about to say the sentence “I do not think Donald Trump would do this.”  There’s not a lot that I don’t think Donald Trump would do. 

But let’s assume ultimate nefarious intent.  I’m gonna mobilize the National Guard, I’m gonna blockade polling places, I’m gonna physically prevent people from voting, what would happen?  The answer is Donald Trump would not continue in office as President.

Thomas:         Yeah he runs … Oh.  Wait, why?

Andrew:         Here’s why!

Thomas:         Okay!  I thought I had an answer then I realized I didn’t.  So now..

Andrew:         The reason is the 20th Amendment.  The 20th Amendment to the Constitution specifies in Section 1-

Thomas:         Women can vote or something?

Andrew:         Oh no no no! 

Thomas:         [Laughs] I know all my amendments, this is the alcohol one, right? 

Andrew:         “The terms of the President and the Vice-President shall end at noon on the 20th day of January and the terms of Senators and representatives at noon on the 3rd day of January of the years in which such terms would have ended if this article had not been ratified and the terms of their successors shall then begin.”  That means if the President is not affirmatively reelected his term ends.  He is no longer the President.

Thomas:         Who becomes President?

Andrew:         Yeah!  Good question! 

Thomas:         A bald eagle or something?

Andrew:         So I think the answer is Nancy Pelosi?  I’m going to explain why, but I wanna say that this has been floated out there and I have done the math on Vox journalist Ian Millhiser who [Laughs] thinks – and I am not making this up, we will go through it, that the answer is [Laughing] Chris Leahy.

Thomas:         Baron Trump.

Andrew:         No, I’m sorry, I said Chris.  Pat Leahy the 80-year-old Senior Senator from Vermont, the only person older than Bernie Sanders in the Senate.

Thomas:         [Laughs]

Andrew:         That seems … you wanna say one weird trick.  President Pat Leahy seems amazing?  I will tell you I don’t agree with Ian’s logic and I’m gonna get to that in a minute, but his math works out.  It truly is the case, I believe if Donald Trump mobilizes the National Guard, that either Nancy Pelosi or Pat Leahy will become President.

Thomas:         [Laughs]

Andrew:         Which is not a thing that Donald Trump wants!  So how do we get there?  I just read you Section 1 which says the terms of the presidency end on the 20th of January.  The terms of the House of Representatives and the Senate end on January 3rd.  In other words, Congress gets to meet for two and a half weeks before the new President is sworn in.  And Section 2 of the 20th Amendment says “The Congress shall assemble at least once every year and such meeting shall begin at noon on the 3rd day of January unless they shall by law appoint a different day,” which they have not.

So the Congress must assemble and here’s where things get weird! [Laughs] Because all of the – every member of Congress is elected every two years so if there are zero elections-

Thomas:         Well the House, yeah.

Andrew:         Every member of the House of Representatives, correct, thank you for the clarification.  Every member of the House of Representatives is reelected every 2 years.  If there are no elections it will be very strange [Laughs] to imagine how you can have a Congress to assemble on January 3rd.  I suspect that in the event that there are no elections because of physically barring the doors, what would happen is the governors of those States-

Thomas:         Yeah, I was gonna say.  Same as when a congressmember dies or something. 

Andrew:         Exactly, right.  We’ll get to a point and can promulgate the document so that it happens at exactly noon on January 3rd and we’ll get to reappoint everybody in the House of Representatives, if they’re from the same party, or appoint new representatives if they’re from a different party.  That will be massive chaos.

Thomas:         That will be.  I was gonna say it’s not like there’s any State that has all members of one party. 

Andrew:         Correct.  And that’s why I suspect you will see governors, in the event that there’s no election for the House of Representatives, which again, this is not gonna happen.  This is all a thought experiment.  Because virtually every State has a mixed delegation and because congresspeople – although they differ on almost everything the one thing they love are their own jobs.

Thomas:         Yeah.

Andrew:         I suspect you would see first a computer analysis as to who stands to gain the most, I believe that it is the Democrats for reasons I’m about to explain, and then a “hey, we could go back and do a tit for tat and my State, California could appoint 53 Democrats and kick all you Republicans out, but why don’t we just mutually agree that we’re all going to, all of our governors are gonna just reappoint all of the slates to Congress.”

Thomas:         Or prior to that is there anything they can do to stop this hypothetical?  Again this is a hypothetical that’s not gonna happen.

Andrew:         Right, right, right.

Thomas:         Could they have stopped this process some how in the first place?  Or does Trump have some unilateral power here to cause this chaos?

Andrew:         So here’s the thing, elections are largely in the control of the States.

Thomas:         Hmm.

Andrew:         There’s very little you can do.  Now under the Voting Rights Act and under the 15th Amendment those elections must meet certain minimum criteria, but one of the reasons that Republicans have been super successful in their voter suppression efforts-

Thomas:         Yeah.

Andrew:         -is the continuing trend towards federal hands-off deregulation, we let the States do whatever they want.

Thomas:         Yeah, complicity in the Supreme Court too.

Andrew:         Yup, yup.  Gerrymandering is no longer a constitutional claim.  Political gerrymandering is no longer a constitutional claim.

Thomas:         Well and wasn’t there the voting rights case that we talked about where they’re like no need – preclearance, right?

Andrew:         Yeah, they struck down the preclearance requirement because, you know, racism’s dead.  We had a black President.

Thomas:         Yeah, it’s over.

Andrew:         Racism’s dead in this country, yeah exactly.  So there’s very little that the federal government could do with respect to how states want to hold an election.  The answer to that question is federal election day for the presidency gets blockaded, we’re gonna talk about how that impacts electoral votes in a minute, but would states likely be able to reschedule their Congressional elections at a time and do it at a whole bunch of different times such that Trump couldn’t continue?  Yeah, it would be very easy for them to do so under the existing law.

So given that I suspect that the House will convene, that it will look largely like this House, and that the Speaker of the House will then be Nancy Pelosi.  If that happens, we get to – I do wanna put a pin in that, though, because I wanna answer a question on the Speaker of the House because I saw an interesting – well in fact, let’s pull out the pin right now. 

Thomas:         Alright.

Andrew:         I’m gonna go down the rabbit trail and do it.  The conventional wisdom seems to be – and this has been floated from time to time and in novels, that the Speaker of the House could be anybody, that it doesn’t actually have to be a member of the House of Representatives.

Thomas:         Oh that’s right!  This came up at some point.

Andrew:         Yeah.  It’s been proposed throughout – not infrequently in the past as a way of doing a sort of Gerald Ford.  So if you had a situation in which you wanted an unelected compromised person to be President you could have the President and the Vice-President resign.  You would have the House of Representatives name Thomas Smith as Speaker of the House-

Thomas:         Now we’re talkin’!

Andrew:         Yeah, even though you have not been elected to the House of Representatives, the President and the Vice-President resign on the same day and now badabing, badaboom, Thomas Smith is President of the United States.

Thomas:         [Laughs] Yes!

Andrew:         I did some research into this and I’m not convinced that anybody can be Speaker of the House.

Thomas:         Huh.

Andrew:         I get the argument.  The argument that they could be is that the entirety-

Thomas:         There’s no rule that a dog can’t play- [Laughs]

Andrew:         It is!  The entirety of the rules of the Speaker of the House is Article 1 Section 2 of the Constitution which says, I’m gonna read it all to you right now. “The House of Representatives shall choose their Speaker and other Officers and shall have the sole power of impeachment.” 

So you have half a sentence!  [Laughs] That says the House can choose their Speaker.  It doesn’t say they have to choose it from among their membership.

Thomas:         So it could be a dog! [Laughs]

Andrew:         It could be a dog.  Here’s the arguments for why it couldn’t be a dog.

Thomas:         [Laughs] I won’t hear it!  I will not hear of it!!

Andrew:         I’m gonna give you an originalist argument.  The originalist argument is that the predecessor document, the Articles of Confederation, required that the Congress of the United States had the power (quote) “to appoint one of their number to preside, provided that no person be allowed to serve in the Office of President more than year or any term three years.”

Thomas:         But were they talking to a room full of dogs?  Was there a dog in the room at that time?

Andrew:         I don’t think so. [Laughs]

Thomas:         Okay. 

Andrew:         Now again, this cuts strongly on a textualist originalist view in favor of the argument that said yeah, at the time “choose their Speaker” it meant from among their numbers.  That was how those words were understood at the time.  There is a counterargument, though, and it is the counterargument you would import over from Hively v. Ivy Tech, from the Title VII cases.

Thomas:         Oh, more dog law huh?

Andrew:         Yeah, that says just in the Articles of Confederation we knew how to say choose from among their number, and the fact that we didn’t say “choose from among their number” means you should infer that it could be anybody.

Thomas:         [Laughs] Alright, patron challenge, come up with names for the Air Bud sequel Speaker of the House.

Andrew:         [Laughs]

Thomas:         What it would be. 

Andrew:         There’s a second problem, and this is a practical problem but it’s a real one if Air Bud becomes Speaker of the House! [Laughs]

Thomas:         [Laughs] I see no problems!  Okay, I’m all ears, I’m fine!

Andrew:         Under the House rules the Speaker has tremendous powers.  One of the things the Speaker must do is arrive first and call the House to order.  That makes sense, we’ve seen the House, you come in and you gavel them down.  According to the rules of the House of Representatives, and this is Rule 4, only 17 classes of people are actually allowed to enter the Hall of the House of Representatives. 

Thomas:         What?

Andrew:         I’m gonna go sort of quickly through that, that is, you know, members of Congress, members-elect, contestants in election cases, the President-

Thomas:         Is there like a pageant?  Where they all enter in this way?

Andrew:         You have to actually be present on the floor of the Capitol building in order to be the Speaker.  To gavel the House into order you have to be let in to the floor of the Capitol building, and you and I can’t do that.  The only people who can do that are these 17 classes of people, I’m gonna link it in the show notes

Thomas:         Air Bud could!  Oh no, he couldn’t.

Andrew:         Not if he’s not a sitting dog of the House of Representatives.

Thomas:         He can sit, he’s a good boy! 

Andrew:         [Laughs] So it could be any member of Congress, it could be the President and Vice-President, it could be justices of the Supreme Court, it could be the House Parliamentarian, it could be staff of committees when business from their committee is under consideration.

Thomas:         Ooh!  Could he be hired as a staff member?

Andrew:         Maybe.

Thomas:         Okay.

Andrew:         And this is the best way, number 17 is the catch-all.  “Such person as have by name received the thanks of Congress.”  [Laughs]

Thomas:         Oh I’m sure Air Bud at some point has gotten a Congressional medal of honor or something, right? [Laughs]

Andrew:         You could do that!  Nancy Pelosi could arrive, gavel the House into session, convene, confer special thanks.

Thomas:         Say “Somebody has been a really good boy!” [Laughs]

Andrew:         Somebody’s been a good boy, Air Bud, then Air Bud would be allowed into the Halls of Congress-

Thomas:         Okay.

Andrew:         And once in the Halls of Congress could then be named Speaker if you get past the originalism issues.  But… that would be a real problem-

Thomas:         [Laughs] I’m telling you, we are better at making movies than the people who make these crappy law movies we have to watch.  This is awesome!

Andrew:         [Laughs] Yeah.

Thomas:         Can we make this?  Can this be quarantine project?  Eh, we’ll figure it out.

Andrew:         So now you might be thinking okay, so now Donald Trump manages to block all of the elections in Democratic districts so that Republicans retake the House of Representatives and then even though he doesn’t get reelected President he gets named Speaker of the House of Representatives.  Then he can succeed, when there’s a presidential vacancy he would be Speaker of the House.

Thomas:         And then Air Bud’s sitting there as minority leader, with his bone in his mouth now that he’s got nothing to do!

Andrew:         That would be a problem.  But no, I just wanted to go through all the potential coups scenarios, but as it turns out that would be prohibited by the ineligibility clause of the constitution.

Thomas:         Hmm.

Andrew:         Article 1 Section 6 says no person holding any office under the United States, that includes the President, shall be a member of either house during his continuance in office.  Here’s the thing, because the presidential term doesn’t end until January 20th, but the House reconvenes on January 3rd

Thomas:         Oh!  [Laughs]

Andrew:         Even a Republican loyalist howler monkey House could not make Donald Trump Speaker of the House while he is still President.  They must name somebody else.

Thomas:         Wow.  Melania.

Andrew:         [Laughs] Now, if you get past the originalism thing they could name Melania.  Ian Millhiser’s argument was suppose Trump cancels all the elections, that means there’s no House of Representatives, then what happens?

Thomas:         Sorry, I do wanna clarify.  What do you mean when you say “suppose he cancels elections?”  Because he can’t, right?

Andrew:         Right.  That is calls out the National Guard, prevents people from voting-

Thomas:         Gotcha.

Andrew:         Harass, delays, yeah.

Thomas:         I see, the idea is look it’s too contagious, nobody can be here.

Andrew:         Yeah, we’re on total lockdown, everybody’s in gas masks, nobody can vote so I have to stay President forever.

Thomas:         Would that be mechanically – if a single person can sneak in a ballot they would like one vote to zero would win?

Andrew:         I’m actually going to answer that question.

Thomas:         Oh, awesome!  [Laughs]

Andrew:         But not now.

Thomas:         Okay. 

Andrew:         Ian Millhiser says suppose that literally zero people vote, zero states have elections, then what happens?  The answer, where he is correct is that would completely abolish the House of Representatives but as you corrected from earlier it wouldn’t abolish the Senat.e

Thomas:         Hmm.

Andrew:         Only a third of the Senate is up for election every two years, so the terms of 2/3 of the Senate would not expire.  We would have a valid, sitting, Senate even if there were no elections anywhere because of armed guards and in the event that there is not a Speaker of the House, the next person in the line of succession is the President pre tempore of the Senate.  That is, the Senator from the majority party with the longest tenure.  Right now that would be Chuck Grassley, that would be super bad to have President Chuck Grassley.

But here’s the fun twist and the math that I have worked out.

Thomas:         Have you worked out which seats are up?

Andrew:         Of course I have! [Laughs]

Thomas:         My instinct was it was gonna be bad, but I guess since the last map was so bad maybe this one is a little better meaning more Republicans are up.

Andrew:         No, no.  It’s still a bad map for Democrats.

Thomas:         Right.

Andrew:         But more Republican seats are up than Democratic seats.

Thomas:         There you go.

Andrew:         So you have two possibilities.  If all of the seats that are up are just zeroed out, nobody gets to do anything, there’s no vote, there’s no election, there’s no nothing-

Thomas:         But wait, sorry, there wouldn’t just be governors.  Yeah, I know, but the Senators, there wouldn’t just be governors appointing people?

Andrew:         That’s the second possibility.

Thomas:         Oh.

Andrew:         The first possibility is there’s just nothing and those seats are vacant.  If that happens the Senate massively switches over to the Democrats.

Thomas:         Nice.

Andrew:         Because far more Republicans are up for reelection than Democrats, most of those are Republicans in deep red States, so they’re safe elections-

Thomas:         Safe, yeah.

Andrew:         -that’s why it’s a bad year, but if there are no elections and those seats are vacant, the Democrats will be the majority party.  What if governors managed to fill all of those seats?   Well that’s what I did the math on.

Thomas:         Oh! 

Andrew:         [Laughs]

Thomas:         Of which party controls the State, that kind of thing?

Andrew:         I looked at – so the overwhelming majority are Republicans in States with Republican governors who get reappointed.

Thomas:         Yeah.

Andrew:         Then there are Democrats in Democratic States who would get reappointed.

Thomas:         Sure.

Andrew:         Then there are three Republican governors with sitting Democratic Senators.  Alaska – no, I’m sorry, Alabama, that’s Doug Jones.  Going by State abbreviations here and I’m like Alaska doesn’t have a Democratic Senators!  No, Doug Jones in Alabama, obviously he doesn’t get reappointed.  Massachusetts, which has a Republican governor, Charlie Baker, and New Hampshire which has a Republican governor, Chris Sununu. 

There are, however, seven Democratic States that have Republican Senators up for reelection:  Colorado, Kentucky, Louisiana, Maine, Montana, North Carolina, and Virginia. 

Thomas:         Kentucky has a Democratic governor?

Andrew:         Kentucky has a Democratic governor, 2018. 

Thomas:         Huh.

Andrew:         So if this goes to the case, then the swing – and everybody behaves in a partisan fashion, that would be a +4 swing to the Democrats.

Thomas:         Alright!

Andrew:         Which would take us from 53-47-

Thomas:         This is some good doomsday insurance we’ve got here!

Andrew:         To 51-49!  We have really good doomsday insurance.

Thomas:         And I bet you it was because people showed up to vote in 2018.

Andrew:         If it were not for a Republican losing the governor’s mansion in Kentucky in 2108 then this nightmare scenario could potentially give us President Chuck Grassley.  [Laughs]

Thomas:         Wow.

Andrew:         So, yeah, every time-

Thomas:         In all seriousness, it really goes to show.  Often things we talk about come back to we voted in 2018.  Now I know it doesn’t always feel like we accomplish a whole lot, and it feels hopeless, whatever, but this truly shows.  There’s so many little ways, and ways that we may never even see because the possibilities don’t come up.  You know, we’re talking about extreme possibilities, but there are all kinds of little ways we don’t see and ways that we do see that showing up to vote really did make a difference in 2018 and will continue to make a difference every single time.

Andrew:         I couldn’t have put it better myself.  I endorse that 100% and yeah, every time you are tempted to think “oh, I live in Kentucky,” remember this is Andy Beshear, conservative Democrat!

Thomas:         That’s right!

Andrew:         Probably not somebody that you’re likely to agree with much on this show, but Andy Beshear may be the difference maker in Mitch McConnell arranging for Republicans to sneak through a potential President.  Because look, I’ve said I don’t think Donald Trump will do this, there’s nothing I don’t think Mitch McConnell would do.

Thomas:         Yeah.

Andrew:         And if you think otherwise then you are more naïve than I was in 2016!

Thomas:         I think otherwise I have a Supreme Court justice to sell ya!

Andrew:         Yeah!  He’s been blatant about that! That’s why I wanna get this math out here, I am sure that Mitch McConnell has looked into this.  I’m sure he’s thinking about it, and I want him to know, if Mitch McConnell gets on board with this plan, Andy Beshear will appoint a Democrat to replace Mitch McConnell! 

Thomas:         Ha ha!

Andrew:         Amy McGrath, probably, in his seat.  He would have to give up personal power and it would all be to make delightful wizened Pat Leahy, who has been in the Senate since 1974, President of the United States. 

Again, I disagree with a lot of the premises to that scenario, that was the Ian Millhiser, but I went, I did the math, I looked at it.  You might also be asking what if governors are not reelected?  There are some of the governors that are up for reelection?

Thomas:         Oh, yeah.

Andrew:         But again, the math still works out in favor of the Democrats.  So yeah.  Donald Trump cannot use coronavirus to guarantee himself a second term, he can’t.

Thomas:         I’m gonna say as a special coronavirus measure that we take, why don’t we skip T3BE this week?  Because we’ve got so much.

Andrew:         Okay! 

Thomas:         We’ll skip it, we don’t need-

Andrew:         We’ll do a hiatus.  I love T3BE-

Thomas:         Just a brief pause.

Andrew:         Yeah, we’ll give you a brief pause.

Thomas:         Yeah, sometimes in an urgent case-

Andrew:         We’ll self-quarantine T3BE.

Thomas:         Exactly.  And let’s face it, I was gonna nail the question anyway.  So Teresa, just count it as a win for me and we’ll leave more time for these important questions because I’m pretty sure we’re on bullet point one still! [Laughs]

Andrew:         [Laughs]

Thomas:         And I still have questions, because I’ve already imagined – again, we have so many movies we could make, Andrew.  Maybe this quarantine – if I didn’t have kids I could get things done in this quarantine, but I can get way less done now. 

But anyway, here’s my movie idea: we get the Vin Diesel, those types, Vin Diesel and that other guy that do all the same movie over and over, and by the way they’re not busy because Fast Furious 9, 10, 11 got pushed off or something?  They have a role to play in our movie, which is Trump has shut down elections, he’s got the National Guard, they’re guarding the polling places, but if you can get one vote in in each State, if you can get one ballot in the box, then you can win!  Maybe district by district, State by State, whatever. 

So they’ve gotta fight their way through the National Guard to cast one ballot each!  In every district I guess – that’s gonna take a while you’re gonna need a big team.  What do you think about the movie?

Andrew:         So I was thinking yeah, instead of it being a Fast and Furious style fighting your way through it would be a cross between Mission Impossible and Oceans 11.

Thomas:         I think what you do is you set up the team that each guy – sorry, women of course, everybody!  Each person has a different skill.  So you’ve got the sneaky one who sneaks the ballot in, you’ve got a magician!  They come by the National Guard they’re like “hey, you wanna see a card trick?” and they get past, they all have their different tactics for getting the ballot in the box.

Andrew:         You just elected Eli Bosnick as Senator, I hope you’re proud of what you’ve done!

Thomas:         Of course there’s gonna be intrigue, too.  Oh, we all agree we’re gonna elect this person and there can be disagreement, somebody tries to elect themselves or something.  Anyway, I use this to ask the question that I asked earlier which is, in this scenario where you haven’t been able to cancel the election because you can’t but you’ve barred the doors or something using the National Guard, what would happen?  If any vote, if any ballots are somehow cast they would just – whoever they voted for?  One ballot, whoever that one person voted for just wins?

Andrew:         So … no. 

Thomas:         Oh. 

Andrew:         [Laughs]

Thomas:         You need a majority in some cases or something?

Andrew:         No, it’s not that you need a majority.  It is that for an election to be valid it must conform to federal law and the constitution.

Thomas:         Boooo!

Andrew:         Yeah.  Although there’s not a lot left, we know we can gerrymander you into terrible districts, the things that we can’t do is prefer one section of the State over another section of the State, and that goes back to Opening Arguments episode number 1! 

Thomas:         Oh!

Andrew:         Number 2, actually.  2 through 5-

Thomas:         Bush v. Gore?

Andrew:         -where we discussed Bush v. Gore, that’s right!  One of the things-

Thomas:         Still not sure how this blows a hole in my film script, we’ll see.

Andrew:         [Laughs] So one of the things that Bush v. Gore stands for is the idea that – and here I’m gonna read a quote from the decision, “The right to vote is protected in more than the initial allocation of the franchise.  Equal protection applies as well to the manner of its exercise.  Having once granting the right to vote on equal terms, the State may not by later arbitrary and disparate treatment, value one person’s vote over that of another.”

Thomas:         But dedicated listeners will remember, and dedicated cohosts will remember, wasn’t that a per curium opinion, Andrew Torrez?

Andrew:         It was-

Thomas:         Didn’t it mean almost nothing?

Andrew:         [Laughs] It means almost nothing, and in particular I am not convinced that Bush v. Gore’s analysis of 3 U.S.C. § 5 will be applied as precedent and I’m gonna read that statute in a second, but the underlying analysis upon which it’s based is, I think, sound in that case, which is to say that the right to vote means that a State may not arbitrarily privilege one set of voters in the State over another set of voters in the State.

Thomas:         Hmm.  But the State didn’t-

Andrew:         Now how that gets applied-

Thomas:         The State didn’t, the National Guard came in, it’s Trump’s cronies, they prevented people from voting.

Andrew:         But here’s how the State is doing it, because the State is going to count the votes of people who were able to sneak past the lasers-

Thomas:         Vin Diesel.

Andrew:         Right, yeah, and not count the votes of everybody else.  That was the rationale used in Bush v. Gore because remember, Al Gore had pushed for a partial recount of two counties in Florida, and the Supreme Court said “no, no, look, what you’re gonna do is you’re going to apply different standards to these two counties, to Volusia and Palm Beach county, than you would apply to the rest of the State and that runs afoul of 3 U.S.C. § 5 and the demands under the constitution that all votes be treated equally.

Now, again, that was 100% pretextual in the context of Florida, it would not apply again in a recount situation, but I think it would apply in the Tom Cruise descending from the ceiling to seek that they cast one vote.

Thomas:         [Sighs] Alright, well I had their agents on the line-

Andrew:         I like it, I like it!

Thomas:         I guess I’ll have to – well, we could change it up so that they just fight the National Guard and then everybody gets to vote.  There’s just a stream of people-

Andrew:         Yeah!  Wolverines!  That’s right, exactly.

Thomas:         Alright, I’ll go back to my Air Bud Speaker of the House.  Yeah, I dunno if I’m bad at puns or if there’s just no good dog puns for Speaker of the House.  Speaker of the … Schnauzer?  I dunno. 

Andrew:         Squeaker?  Like my dog likes squeaky toys. 

Thomas:         Yeah, I guess. 

Andrew:         There’s something good there, but our patrons will come up with-

Thomas:         We’ll put our patron hivemind…

Andrew:         And speaking of, should we thank our new patrons? 

Thomas:         I think we should thank our patrons.

Andrew:         Alright!

Thomas:         And also let them know as we did at the top of the show, you’re gonna get part 2, in which I promise you we will get through more than one bullet point! 

Andrew:         [Laughs]

Thomas:         But this was fun, this cheered me up.  This was fun.  I love the hypothetical extreme scenarios.  Again, they seem hypothetical and extreme right now?  Hopefully they’ll stay that way.  This was a lot of fun, Andrew, thanks for going through and doing that counting.  I’m not gonna call it math, there’s no math it’s just counting.  Not to take anything away from your research, I’m just saying there’s no sines and cosines.  There’s no quadratic equations, this was just counting. [Laughs]

Andrew:         Let it be said that Thomas Smith is of the view that arithmetic is not math. 

Thomas:         [Laughs]

Andrew:         The record so reflects, now you may continue.

Thomas:         Is counting math?  If my daughter can count to ten, which she kind of can on some days, it really depends on the day, is she doing math?  I don’t think so, she’s reciting a list of memorized words that correspond to her fingers. 

Andrew:         Mr. Smith, please proceed! [Laughs]

Thomas:         [Laughs] who are gonna be enjoying a part 2 full of much more coronavirus questions that’ll be covered and hopefully more dog law.

[Patron Shout Outs]

Andrew:         Thank you all so much for supporting the show over at, we hope that you are enjoying the, like literally, thousands of hours of bonus content while you’re self-quarantined.

Thomas:         Well that’s our show, stay safe out there everybody.  Stay quarantined, it’s the real deal.  Wash your hands, you know.  Don’t touch stuff, all that stuff. And yeah, I hope you enjoy, patrons of the show, coming right at you very soon, everybody else on Tuesday and again, Andrew’s talk, the last talk at the end of the world that the patrons will also get to hear on Tuesday.  Lots of good reasons to hop on over to if you can.  We understand times are tough, if you can.  Okay, thanks everybody, we’ll see you next time!

[Show Outro]

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.