Transcript of OA434: Kavanaugh’s Crooked Concurrence

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments this is episode 434, our last recording session before the election.

Andrew:         Yeah!

Thomas:         How’s it going, Andrew?

Andrew:         I’m nervous and anxious.  How are you, Thomas?

Thomas:         I am good.  Let’s talk about our democracy ending unless we save it! [Laughs]

Andrew:         Yeah, let’s talk – this episode is going to be about saving our democracy and I kinda want to reveal the overarching thesis here because we’re gonna get to the legal breakdown in the main segment.  Before I do that I wanna remind everybody we’re doing an election night livestream.

Thomas:         Oh yes, we are.  Cannot wait, it’s gonna be election night!  Whenever that is. [Laughs] Consult your local library to find out when that is.

Andrew:         Tuesday, November 3rd.

Thomas:         It’s gonna be from 5 Pacific Time to 7 Pacific Time, so that’s 8-10 important people time.  That’s gonna be the way we’re all coping.  My question, Listener Thomas S. wants to ask Andrew, is my diet going to survive this election night?  I don’t know if this is a legal question.

Andrew:         Yeah, absolutely not!  No!  You are gonna have the nervous snacky quality.

Thomas:         [Laughs] I’ll be on the stream eating like an entire pie and you’ll just be like-

Andrew:         Oh my gosh.  I would give any amount of money to watch you eat a blueberry pie with your hands on the stream.

Thomas:         Woah!  I can’t believe you said that!  I made Lydia a blueberry pie for her birthday the other day.

Andrew:         Aw!

Thomas:         We literally have a blueberry lemon crumble-

Andrew:         Mm, that sounds delicious.

Thomas:         -on our baking episode I’ll talk about how I had to bake it twice and I still didn’t get it quite right the second time.  I blame the recipe, it’s the recipe everybody!

Andrew:         Yeah.

Thomas:         So, I’ll do that.

Andrew:         Alright well you heard it here first.  On the Opening Arguments livestream Thomas will eat a blueberry lemon pie without using his hands, it’s gonna be amazing.

Thomas:         Wait a minute… [Laughs]

Andrew:         Here’s the thesis for this episode.  We’ve tweeted this out on all of our social media, we’ve mentioned it an awful lot.  I want to boil it down to its essence.  We’re gonna prove in the main segment that now the Supreme Court, the Howler Monkey contingent which is a 5-4 majority on the Supreme Court, is on board with the Trump administration’s plan to steal this election.  Here’s what it comes down to:  It is based on a single stupid premise; the idea that incomplete and artificial vote counts on election night that show Trump ahead count and that complete vote counts overturn that first result.

Thomas:         Yeah. [Sighs]

Andrew:         That is madness.  It is not the law.  It is preposterously, straightforwardly, transparently obvious as to what that is, and yet that’s what they’re going to do.  I’m gonna give you a link, I shared it out from the Opening Arguments Twitter account.  If you have an Uncle Frank in your life that is starting to repeat this nonsense, this is an August 11th story from Fox News talking to their decision desk, explaining why they very likely will not be able to call close states on election night.  So, if they don’t believe us, they don’t believe MSNBC, they don’t believe CNN, you give ‘em a big ol’ dose of Fox News that says this is just how states get counted.

Thomas:         Yeah.  [Groans] We all know this is how it works, you know?! I was so terrified when I saw the Kavanaugh concurrence.

Andrew:         Yeah!  You should.

Thomas:         [Sighs]

Andrew:         We’re gonna break it down, it is a master class in disinformation and it confirms what I have said all along, what you have said, what we’ve been warning about which is the problem with the Justin’s and Corey’s and Brett’s that Donald Trump is nominating to the bench is not just that they are politically motivated in their judicial philosophy, it’s that their politically invested in the process.  These are partisans.  These are people who are going to be watching on election night and vigorously rooting for Donald Trump to steal the election and if they can help their buddy out their going to give him a leg up.

Now the good news [Laughing] we’re gonna break this down today, is if those early returns do not show Trump up then there’s nothing they can do about it!

Thomas:         Yeah.

Andrew:         There’s no – again, look, the playbook that they’re running, that this is modeled after, is Bush v. Gore, but there’s a huge difference between Bush v. Gore and what Trump is going to try and do.  In Bush v. Gore you had certified, completed results.  They were wrong, they had huge error bars on them, but the difference psychologically in trying to talk to the American public is the kind of infinite regress argument.  That’s what Bush said, it said yeah, look, there are probably errors, they would probably be fixed by a recount, but you know what?  If we had two recounts that would make it even more fair.  How about three?  We could just keep going, there’s always a level of indeterminacy and they publicized the butterfly ballots and the hanging chads and this and that.  There was this kind of idea of look, we just need a bright line.  The problem for Trump-

Thomas:         And they had the judges to back them up, basically.

Andrew:         Exactly right.

Thomas:         That’s what really mattered.  They had a 5-4 majority in the Supreme Court that would deliver them the election in Bush v. Gore.

Andrew:         Right.  But the problem, where they’re stuck is not that they don’t have dishonest readings of Bush v. Gore, we’re gonna talk about that in the main segment.

Thomas:         Wait wait wait, a dishonest rea-

Andrew:         Oh yeah.

Thomas:         You don’t even need – so you’re telling me not only is just a reading of Bush v. Gore which would be bad enough, a dishonest reading of Bush v. Gore?

Andrew:         Correct. 

Thomas:         Oh wow.

Andrew:         Just you wait.  But an honest reading of Bush v. Gore would say okay, yeah, the final – there must be finality, there must be a bright line, but at least you count all the votes first.  What they’re trying to do is deliberately not count votes.  We’re gonna talk about all the ways in which you can stand up to that today.

Thomas:         Okay!  Well let’s stand up to it!

Breaking Down the Law: Vote! Here’s How

[Segment Intro]

Andrew:         We have already made this clear but it’s worth stating explicitly:  Opening Arguments, as a podcast, endorses Joe Biden for President, endorses your local Democratic candidate.  Vote straight blue all the way up and down the ticket.  Yes, even if you’re in Montana, yes even if you’re in Oklahoma, we’re gonna talk more about that on Tuesday.

Thomas:         Oh, and all – I just voted, by the way, we just turned in our ballots yesterday and you know, the one thing that was disappointing about having to do it early is that, you know, there’s nobody there. [Laughs]

Andrew:         You don’t get the sticker.

Thomas:         Well we do, you do get a sticker, but I was just like marching, singing “vote him out!  Vote him out!” and nobody’s there.  I’m like “grab him by the ballot!” and I’m just like … okay, I’ll just turn in my ballot.

Andrew:         I handed mine to Alex which then casting his first general election presidential vote he was very excited, and I recorded it for posterity.  But we dropped ‘em in a State-certified drop box.

Thomas:         Right, yeah, that’s what I did to.

Andrew:         So, we didn’t even get a sticker! [Laughs]

Thomas:         Okay, so in California they send you the sticker with your ballot in the mail.

Andrew:         Ahh.

Thomas:         If you’re mail-in ballot person they give you that sticker.  I’m gonna put it on on election day, still sitting ready to go.

Andrew:         Alright.

Thomas:         What was the point I was making?  Oh, I wanted to throw this out there while we’re talking about who we officially endorse.  I used the Progressive Voter Guide; I believe it’s called?

Andrew:         Mm-hmm.

Thomas:         And I found that very helpful.  If you’re anybody out there, obviously you know you’re voting for Joe Biden, that’s not a question.  You know you’re voting Democratic up and down the ticket, but you know, ballot measures, maybe more local stuff, and Progressive Voter Guide I found really helpful in popping in my zip code and they give you their opinion.  Maybe you don’t follow it all the time but they’ll give you a good breakdown of both sides of what’s going on and what they advocate.

Andrew:         I’ll give you my mirror image tip, which is you might not always agree with the local newspaper that tends to lean Democratic, and sometimes they make idiosyncratic picks.  Find the conservative news outlet in your hometown-

Thomas:         [Laughs] And vote against them, yeah!

Andrew:         And vote against their recommendations, that’s exactly – that is often how I try and figure out super complicated ballot initiatives or nonpartisan judicial elections or things like that.  Who are the guys that the other side wants to win and vote against them?  But no, that was a really – in talking about us dropping off our mail-in ballots at authorized ballot boxes, that’s kind of what I wanted to talk about in this first segment.  The United States Postal Service has now officially confirmed, if you are listening to this show it is too late to mail in your mail-in ballot.

Thomas:         Wow.

Andrew:         I know, that seems like that shouldn’t be the case and we’re gonna talk about that.  Multiple jurisdictions, including the State of Wisconsin, but two dozen jurisdictions have now said that ballots must arrive by election day, not just be postmarked.  Now some jurisdictions will allow processing of ballots even if they are postmarked on election day.  North Carolina will, for now, for an additional nine days-

Thomas:         Yeah, but who knows?

Andrew:         In Pennsylvania the Supreme Court has decided, again for now, not to invalidate a three day safe haven, but they’ve instructed Pennsylvania to segregate all ballots that arrive after 8 pm on election day so that in the future they can change the rules if they do the math and figure out, oh look, we can flip Pennsylvania if we come up with this absolutely cockamamie rule. 

You want your vote to be counted on election day as early as possible.  We’re gonna walk through that anyway.  So, if you requested a mail-in ballot, I wanna walk you through the decision tree of what you can do now.  If you have mailed it in and you’re scared, if you haven’t mailed it in, if you haven’t requested a ballot, all of those scenarios.  Let’s talk about the easiest one first.  If you don’t have a mail-in ballot, if you didn’t get one, go to

Thomas:         Hmm.

Andrew:         See if there is an early in person voting site and if there is vote early and in person if you can safely do so.  Look, if you’re symptomatic, if you’re at risk, I understand.  This is if you can.  If you’re outside the early voting window, some states just begin early voting and it continues all the way up through to election day, other states have windows.  They begin then they close and if you’ve missed that window you’ve just gotta show up on election day if that’s the case. will tell you if that’s the case, and if that’s the case you’re gonna have to show up on election day.  Make sure your phone is charged, make sure you’re being responsible, make sure your social distance.  Show up on election day.

Well what if you’ve gotten a mail-in ballot?  Now there are a couple of different possibilities.  Let’s take the easiest one which is if you do have a mail-in ballot and you haven’t sent it in, that’s okay.  It’s okay even if you don’t live in a jurisdiction that has authorized drop boxes, because every single jurisdiction will allow you to take your mail-in ballot and deliver it in person to your local board of elections site.  By the way, that’s local, it’s gonna be super close to you.  Google what that is.

Thomas:         And that’s any time they can do that right now?

Andrew:         As long as they’re open for someone to receive it, yeah.

Thomas:         Okay.

Andrew:         You stop by.

Thomas:         I just wanna clarify it’s not like you have to do that on election day.

Andrew:         Correct.

Thomas:         Okay.

Andrew:         In fact, you should go now.  Hop in your car.

Thomas:         Right now, what are you waiting for?

Andrew:         [Laughs] Yeah! 

Thomas:         You can listen to us on the drive!

Andrew:         Put us on in the car!

Thomas:         Yeah!

Andrew:         Absolutely!  Yup.  Mississippi, Missouri, and Tennessee do not have drop boxes.  By the way, if you’re a Democrat and you live in Mississippi get out and vote.  I’m gonna talk more about this on Tuesday.  No excuses in this election for a lot of very, very important reasons.  Yeah, you’re a Democrat in Mississippi, Missouri, Tennessee, your state does not have a drop box.  You are going to have to go to your local board of elections site.

Thomas:         Oh, so if you live in one of those states where they don’t want your vote and they don’t want to count your vote, you’re saying?

Andrew:         Exactly right.

Thomas:         One of the states where you’re not valued as a part of democracy because the Republicans who run things?

Andrew:         Yeah.

Thomas:         Okay, yeah.

Andrew:         And maybe don’t give them what they want?

Thomas:         Yeah!

Andrew:         Yeah.  All other 47 states use – and the District of Columbia – use drop boxes.  I’m gonna include the link to NCSL, the National Council of State Legislatures, which has put together a nonpartisan – I have checked their citation to absentee and early voting, it’s broken down by state, it is comprehensive, it is vetted, it is nonpartisan, it’s an exceptional resource.  It will tell you where and when you can go to your drop boxes.

If you can’t find a ballot box then you’re gonna have to take your mail-in ballot with you and vote in person.  That gets to the last category, which is you’re listening to this show Friday morning and you say to yourself “oh clownhorn.”

Thomas:         [Laughs]

Andrew:         “I put my ballot in the mail yesterday.”

Thomas:         Uh-oh.

Andrew:         Is that too late?  The answer is it’s probably too late, but it doesn’t mean that you are left just kind of praying that something will happen.

Thomas:         Hmm.

Andrew:         Okay.  There are a couple of things that you can do.  The first is you can google “status of ballot,” and then your state.  So I type in “status of ballot Maryland,” and it will bring up – almost every State has online tracking if you requested and received a ballot in the mail you can go to the website and you can type in your name and your zip code and it will tell you the status of your ballot.  Mine says “ballots received,” it’s being processed.  If you don’t have that or if all of a sudden it’s Tuesday, it’s election day, you’ve gone and you’ve googled “status of ballot” and your state and it still says your ballot was mailed out, it gives no indication that they have received it, most states will allow you to vote in person and invalidate your mail-in ballot.

I’m gonna break this down specifically.  There are a handful of states in which you cannot.  The one prominent one, and this super-duper sucks, is Wisconsin.

Thomas:         Ah.

Andrew:         Wisconsin statute 6.86, subsection (6) says “An elector who mails or personally delivers an absentee ballot to the municipal clerk at an election is not permitted to vote in person at the same election on election day.”  So, if you’ve stuck it in the mail in Wisconsin all I can tell you is you’ve gotta keep your fingers crossed.

Thomas:         Yeah, just go to the post office and cheer ‘em on.  Be like “Go! Go! Go!  Come on!”

Andrew:         Yeah.  Do a better job cheering them on than I did for the Rays.

Thomas:         Aaaaah. 

Andrew:         That’s what I have to say.

Thomas:         No, you did a fantastic job.

Andrew:         But look, so Wisconsin is bad.  Almost – I’m gonna go through all of the other states here.  22 states will override that mail-in ballot by default.

Thomas:         Hmm.  So, you can do two and if you go in, they’ll be like “well, we take the in person one, get rid of the other one,” you don’t even have to do anything fancy.

Andrew:         That’s exactly right!  You have to do nothing.

Thomas:         Awesome.

Andrew:         They will mark it off, it will show you at your precinct as having received a mail in ballot and three more states, I should add, I’ll lump these all together, require you to then sign an affidavit that says “I cancel the previous ballot.”

Thomas:         Hmm.

Andrew:         So, 22 of them say yeah, just come on in, vote in person and when we get that mail-in ballot we’ll throw that away like the piece of trash it already is.  Three of them require you to say “no no no, I’m voting in person, cancel that previous ballot.”  These are … well, let me just run through them:  Alaska, Colorado, Connecticut, Delaware, Hawaii, Idaho, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Vermont, and Washington.  The states that do the affidavit, you’re gonna recognize three more important swing states:  Georgia, Michigan, New Mexico.  That’s half the country you can either just show up and vote or you show up and you sign a little affidavit that says yeah, if you ever get that ballot just throw that away.

Thomas:         Ah.  I might do this just ‘cuz I’ve never gotten to sign an affidavit.

Andrew:         [Laughs]

Thomas:         Sounds cool.

Andrew:         Affidavits are fun.

Thomas:         [Laughs]

Andrew:         But I’m gonna explain why you specifically shouldn’t do that.

Thomas:         Oh.

Andrew:         You are in one of 14 states where you shouldn’t.

Thomas:         Oh, okay. 

Andrew:         Let’s walk through.

Thomas:         Is there any other reason I could sign an affidavit? 

Andrew:         Yes.

Thomas:         Can I make my homemade affidavit?

Andrew:         Yes, absolutely.

Thomas:         I’m amazed that word has survived this long.

Andrew:         [Laughs]

Thomas:         I’m surprised somebody wasn’t just like “I’m done with affidav- it’s the weirdest word, it’s just fact thingy or statement thingy.”

Andrew:         [Laughs] Alright.  So that’s 25 states.  There are two more states that will hand you a provisional ballot if you have previously received a mail-in ballot but you show up in person.  Usually provisional ballots suck.  They’re the kind of thing you get when you go to the wrong polling place and they’re counted way later, but these two states, Arkansas and Wyoming, and again I know what you’re thinking but yes, you have to vote if you’re a Democrat in Wyoming or Arkansas.  You will get a provisional ballot that will be counted the same night.  It is just as good.  So now we’re up to 27 states.  I’ve got 9 more states to tell you about.

Thomas:         Jeez how many states are there?!

Andrew:         Yeah there are a lot!

Thomas:         I guess nobody knows, huh?

Andrew:         [Laughs] In these 9 states you will get a provisional ballot and it will be counted later.  It will be counted after election day.

Thomas:         Hmm.

Andrew:         Unless you’ve taken with you your mail-in ballot and you surrender it to them and they physically mark off “oh yeah, this guy had his mail-in ballot, I received it, I tore it up,” then you get to vote on the same day.  If you still have that copy – whether you have it or not in the first 27 states go.  Vote.  It will supersede, your vote will count that night.  If you have your ballot in one of these states, show up, let them take it from you, and your vote will count that day:  D.C., Florida, Iowa, Nevada, Pennsylvania, Texas, Utah, Virginia, West Virginia.  Even if you don’t and you’re stuck with a provisional ballot, it’s gonna be counted later, you’re gonna be part of the blue shift, that’s better than not counting at all.  That gets us to 36 states.

The last 14 states are states in which, if you show up and you have received a mail-in ballot and you have not returned it, you will cast a provisional ballot and it will get counted later.  That includes California.  Alabama, Arizona, [Sighs] California, Illinois, Indiana, Kansas, Maryland, Mississippi, Nebraska – which is significant for the Omaha Congressional District, New Jersey, Ohio (the third swing state on this list), Rhode Island, South Carolina, and Tennessee.  In those states it’s really a tossup as to whether it’s best to wait for your ballot to come in via mail or to cast the provisional ballot.  I would say right now – and none of them are the subject of litigation.

Thomas:         Hmm.

Andrew:         So, what I would do is google, go to your state’s Secretary of State list and see how late can my ballot be accepted?  Obviously, I’ve done a tone of work looking at state by state statutes.  For these 14 states I was not able to pull up for each one when their ballot receipt deadline is, so what I will tell you is unless they have a safe harbor provision, if you’ve tracked your ballot and it hasn’t arrived by 8 am on election day, pack up, go, vote in person.  You will vote provisionally and it will be counted as part of the blue shift and that will suck.  That’s still better than not having your vote count at all. 

Most of these states are not swing states, or ones that we think of as being swing states.  Again, you don’t get off the hook for not voting just because we don’t think you’re a swing state, but the nice part is most of these states are states that we expect to be a pretty healthy margin one way or the other. 

That’s what to do with your ballot on the state law level.  Again, be smart and triple check this.  I put a lot of work into this, but you know, if at every level what your state Secretary of State or Elections Bureau says should probably trump, you know, taking legal advice over the internet.  [Laughs]

Thomas:         [Laughs] No excuses!  Every single possible person has been covered!  Well I guess if you’re not registered yet.

Andrew:         Yeah.

Thomas:         Then what do you do? [Laughs]

Andrew:         Find out if you’re in a state that has same day registration.

Thomas:         Yeah.

Andrew:         Just about half the states permit same day registration.

Thomas:         Yeah, probably mostly the blue states that actually want to hear your voice in the democracy and not the states that don’t wanna hear your voice in democracy.

Andrew:         Yes.  

Thomas:         Gosh, it’s almost like there’s a fundamental difference between red and blue.

Andrew:         [Laughs]

Thomas:         Just realizing this now.

Andrew:         Yeah, there kind of is.  So, there is – do not panic.  There are multiple avenues that are designed, even in the red states, to protect the fact that you can show up and vote in person.  It is not optimal.  Obviously don’t put yourself at risk if you can’t, but do not despair if you’re listening to this show and you’re like “oh great, I forgot to send in my mail in vote, am I done?”

Also, I almost forgot, there is – I’m gonna mention this again on Tuesday’s show but I’ll put it in the show note for this episode a really really good Slate article that lists the common sense procedures for how you fill out your vote by mail ballot.  Go check that.  It includes things like if you’ve accidentally filled in the wrong circle on a down ballot issue and you’re still going to hand over your mail in ballot, if it’s a ballot initiative and you accidentally marked “yes” and you’re like well, no I wanted to mark it no.  The way in which states process ballots is they will throw out your vote on that question but they will not throw out your whole ballot.  It doesn’t invalidate the entire thing; you can still vote in all of the other races.  I’m gonna include that link in the show notes, take a look at it, it’s just sort of good common-sense procedures. 

Hopefully this helps everyone in terms of thinking about getting to the polls between when you listen to this episode and Tuesday, November 3rd.  Please do, I don’t care what state you’re in, I’m gonna prove that to you on Tuesday’s show, be prepared, make sure you’re voting and make sure you’re voting blue up and down the ticket.

Case Closed:  Kavanaugh’s Concurrence

[Segment Intro]

Thomas:         Time to talk about what seems to me to be just a completely botched opinion here.  Andrew, I’ve got a question to lead off this segment.  How often have you seen a correction issued on a Supreme Court opinion?  How often does that happen?

Andrew:         Let me give two answers to that.  The first is do Supreme Court opinions get corrected between what we call the slip copy and the published opinion?  Sure.

Thomas:         Okay.

Andrew:         That happens – I don’t wanna say all the time but it happens with surprising frequency.  But the second answer I will give you is it has never, ever, ever, ever, ever ever ever ever a matter of substance. 

Thomas:         Yeah.  It’s not because someone just made something up usually and then has to be forced to correct it because the state is like “hey, why’d you make that up?”  You’re saying that doesn’t usually happen?

Andrew:         I am saying [Laughs]

Thomas:         It’s usually like “oh, a citation, I accidentally-

Andrew:         Yeah!  Right. 

Thomas:         I accidentally put the bracket in the wrong letter.

Andrew:         It will say 659 f.2d 1104 and you typed 659 f.2d 104 in the opinion-

Thomas:         Mm-hmm.

Andrew:         You go back-

Thomas:         Sure.

Andrew:         Those are the kinds of corrections that we have all the time.  Instead what we had here is Brett Kavanaugh, in writing a written concurrence to a Supreme Court opinion denying the stay of a reversal of a District Court injunction, wrote a lengthy 9-page opinion that we are about to break down that is almost entirely fact free.  I’m gonna point out several of the very worst aspects of that, but as a threshold matter he cited to Vermont as a state that (quote) “hadn’t changed its ordinary election rules,” and the State of Vermont decided to publicly write to everybody on Twitter, but to write to Brett Kavanaugh and say “uh, yes we have, Jerk Face!”

Thomas:         [Laughs]

Andrew:         It kinda says that.  This is a letter from Jim Condos, the Secretary of State of Vermont and it is a letter to the Clerk of the Supreme Court of the United States.  It says “I am the Vermont Secretary of State, I’m writing to correct the record with respect to the opinion that Brett Kavanaugh just issued.”  It says “On page 5 … Justice Kavanaugh stated ‘Vermont, by contrast, ha[s] decided not to make changes to their ordinary election rules, including the election-day deadline for receipt of absentee ballots.’”  That’s not at all true!

He doesn’t quite say, because you know, Jim Condos is slightly more politically savvy than I am, I guess.  He writes “Thought it is true that our office has made every effort to ‘depart[] as little as possible from our voting traditions and our safe and secure voting processes while proactively ensuring no Vermonter has to choose between their health and their right to vote,’ we did make two significant changes to our ordinary election rules in light of the pandemic – both authorized under Vermont law.  First we mailed every active registered voter a ballot and prepaid return envelope” because we’re Vermont and we care that people vote.  “Second, given that more Vermonters are voting early and by mail than in a typical election year I authorized local election officials to begin processing such ballots confidentially and with strict security protocols during the 30 days preceding the election in order to facilitate timely results.”  So, you’re a big ol’ liar Brett Kavanaugh. 

Thomas:         Yeah.

Andrew:         The first part is exactly what the letter says.

Thomas:         [Laughs]

Andrew:         “You’re a big ol’ liar Brett Kavanaugh” might be my gloss on-

Thomas:         I’m amazed that Kavanaugh did a correction though, because I feel like Thomas and Alito do this all the time and just don’t care. 

Andrew:         Yeah.

Thomas:         Am I wrong on that?

Andrew:         No, you are not wrong on that.  Again, remember the difference between Kavanaugh and Gorsuch.  Neil Gorsuch spent his career, particularly his later career as a federal judge, writing sarcastic Antonin Scalia style dissents.  He’s combative as a matter of judicial temperament.  Brett Kavanaugh was not like that.

Thomas:         Huh.

Andrew:         Brett Kavanaugh, while he was on the D.C. Circuit, even in his dissents was tempered, measured, even handed because this was somebody who had spent his entire life waiting to be nominated to the Supreme Court.  One of the things that makes that path a little easier is not writing stuff that puts a bit target on your back that says “Hi, I’m a political hack.”  That being said … I think this is gonna put the nail in the coffin of any argument that Brett Kavanaugh is not a political hack, we’re gonna get to that.

Thomas:         Yeah.

Andrew:         So yeah, Kavanaugh just issued a revised opinion changing “ordinary election rules” to “ordinary election deadline rules.”

Thomas:         [Laughs]

Andrew:         Which is still … not correct.

Thomas:         Oh wow!

Andrew:         It is potentially correct in the sense that it did not extend the deadline for receipt of ballots which is what is at issue in the Wisconsin case.  But that’s not how Brett Kavanaugh wrote his line because Brett Kavanaugh is trying to defend a nonexistent principle.  Brett Kavanaugh is saying, “look, COVID’s not such a big deal, it’s not like states are changing deadlines or anything,” and the state of Vermont absolutely changed its deadline backwards, that is the deadline for when you start counting.  Ordinarily you don’t start counting a month before the election, but Vermont is doing that and you know what?  That means we’re gonna get the exact results in Vermont on election night, which by the way is the thing Brett Kavanaugh supposedly wants.  That’s a long kind of introduction.

Thomas:         [Laughs]

Andrew:         You raised the amendment issue first.

Thomas:         Sorry.

Andrew:         No no no, I’m glad you did!

Thomas:         It seemed significant.

Andrew:         It is significant because it illustrates what’s going on here.  What’s going on here, as we said at the top of the show but I want to reiterate, is the Trump administration in collusion with its cronies in the executive branch and in the judicial branch are pushing and will ramp up their efforts to characterize incomplete, artificially low vote counts on election night as being somehow (quote) “the vote” (if they favor Trump) and complete counts as somehow (quote) “overturning” those initial correct results.  It’s obvious that’s not the case, but nevertheless Brett Kavanaugh decided to be the first sitting Supreme Court justice to say the quiet part loud. 

For background, we don’t have time to go through the background on all of this, we broke this down on OA 425, which was talking about the Atlantic article “The Election that could Break America,” that in turn was based on blue shift research by Edward Foley.  I’m gonna link his law review article in the show notes and good work done by Neal Buchanan as a law professor in raising the potential for alarm about this documentable phenomenon wherein that most votes that come in not in person are trend Democratic and can have the appearance of “shifting” the result of an election.

First, I wanna talk about what the Supreme Court did here, because leaving aside Kavanaugh’s bizarre opinion which is just – bizarre is the wrong word.  Leaving aside Kavanaugh’s openly nakedly partisan effort to tell Trump how he’s going to try and help him steal the election-

Thomas:         Right, that was better.

Andrew:         That is not hyperbole.  That is not hyperbole, that is 100% correct and I stand by it. 

What the Supreme Court did here was pretty bad.  Let’s talk about that.  In order to talk about that we have to talk about what the Wisconsin laws are and what Wisconsin did stretching back into the Primary.  So, the Wisconsin laws as summarized by the Supreme Court are in order to cast an absentee ballot you must 1) complete the ballot in the presence of a witness, which is bad enough during COVID.

Thomas:         Yeah.

Andrew:         2) You must put it in a special kind of envelope, which again is just a needlessly stupid hoop to jump through.

Thomas:         Then you must engage in open-mouthed kiss with your witness.  [Laughs]

Andrew:         You must – close!  3) Sign the envelope and obtain a signature from the witness on the envelope.

Thomas:         Do that thing where you spit on your hand and you shake.

Andrew:         No, but think about how you seal an envelope!

Thomas:         Yeah.

Andrew:         You lick the top – yes.  You lick the envelope, seal it, and then hand it to another person.

Thomas:         Yeah, it’s not good for COVID.

Andrew:         It’s ridiculous how unsafe this is.  3) Sign the envelope and have your witness sign the envelope; and then 4) you’ve got to return the ballot and it must be actually received no later than 8 pm on election day. 

Okay, you’re sitting there thinking, and folks have actually sent in emails in advance of this episode asking about that.  Well, you know, the law says 8 pm on election day, isn’t that the law says the speed limit’s 55?  I would say yeah, it’s exactly like when the law says the speed limit is 55-

Thomas:         Mm-hmm.

Andrew:         And your pregnant wife is in the passenger seat next to you and you’re going 90.

Thomas:         Yeah.

Andrew:         There are times when even the plain language of the law gives way to manifest concerns of fairness and that’s what happened in April in the primary.  So, in April what happened was – I guess we should go back to the ruling came in April.  In February, in March, people in Wisconsin started to be concerned about COVID.  March 12, that was the day it kind of, nationally, everybody started making decisions and we cancelled our Seattle live show.

Thomas:         Aw.

Andrew:         Which makes me still sad.  Wisconsin governor Tony Evers issued a statewide health emergency then just about two weeks after that, March 24th, the Secretary of Wisconsin’s Department of Health Services issued a “safer at home,” stay at home order which banned public and private gatherings, closed nonessential businesses, required that everyone maintain social distancing.  Wisconsin’s primary was set for April the 7th and there was debate back and forth about moving the primary.  I’m not gonna get into the history of that debate, but due to Republican activity [Laughing] the primary took place on April 7th

So as a fall back people said okay well let’s make sure that we promote voting by mail.  As they were rushing – again, remember this is only a couple of weeks, this is two weeks between the first stay at home order and the primary itself.  So, all of the election officials got super scared.  I’m gonna read again from the Supreme Court’s opinion, local clerks reported that they were running out of absentee ballot materials and felt overwhelmed by the volume of requests and various Mayors urged that the election be delayed.  Between March 18th and March 26th three lawsuits were filed requesting various forms of relief related to the impending primary election.

Instead the District Court fashioned four kinds of relief.  Number one, they extended online registration by 12 days to March 30th.  They extended the deadline by 12 days for you to register to vote.  Number two, they extended by one day the window to request an absentee ballot.  Number three, they adjusted the witness certification requirement, that’s the signature on the thing you’re licking; and number four, they extended the absentee ballot deadline by six days.  In other words, so long as your absentee ballot was postmarked April 7th it could arrive as late as April 13th at 4 pm.  That was the relief that the District Court awarded in the primary in Wisconsin.

That was, of course, challenged by Republicans.  It went all the way up to the Supreme Court.  The 7th Circuit said “you know what?  We are striking out the witness signature requirement relief.  We’re gonna reinstate that.  So, we will not let the court get rid of the signature on the ballot thing.”  That is, again, just designed to suppress – I know, they have some “well this is to guarantee voter integrity.”

Thomas:         [Sighs]

Andrew:         It is just designed to suppress the vote.

Thomas:         Well after all there has been one instance of voter fraud in the 512 billion votes ever cast in the history of the country, so.

Andrew:         Yup, that’s right.  So, the 7th Circuit got rid of the relief on the witness requirement but left in place basically the extension of a couple of deadlines including the extension of the absentee ballot receipt deadline by 6 days.  That then went up to the U.S. Supreme Court which sought a stay (quote) “only to the extent that it permitted ballots postmarked after election day to be counted if actually received by April 13th.”  The Supreme Court granted the stay and ordered that a voter’s absentee ballot must either be postmarked by election day, which was April 7, and received by April 13 or hand delivered on election day.  Does that make sense? 

In other words, in the primary after all the litigation you basically got two forms of relief from the court.  One, narrow extension of a couple of deadlines; and two, for mail in ballots the idea that as long as they were postmarked by election day, they could come in up to six days later because, you know, volume of stuff being delivered.

Thomas:         Yeah.

Andrew:         By the way, this was before Louis DeJoy started monkeying around with the post office.

Thomas:         Hmm.

Andrew:         It was kind of eerily prescient. 

Thomas:         Well it’s almost like it was a totally reasonable accommodation for the fact that mail isn’t instant.

Andrew:         Right!  Even though it overturned the plain language of the statute, plain language isn’t everything!  And not even this Supreme Court thought that it was.  The challenge in the Supreme Court was not on the extension of 6 days for the ballots to come in, it was only on the question of was there a bright line cutoff, did they have to be postmarked by election day or could we just count everything that came in by April 13th.  The Supreme Court said no, they gotta be postmarked by April 7 but they can arrive by mail as late as 6 days later.

I wanna tell you, because the District Court’s opinion is really, really good at explaining what the consequence of this policy was.  (Quote) – this is from page 28 of the District Court’s opinion which I have uploaded to the Opening Arguments website.  (Quote) “Overall 1.55 million votes were cast in the April primaries.  This court’s injunction extending the absentee ballot physical receipt deadline” (by 6 days) “appears to have resulted in approximately 80,000 ballots being counted that would have otherwise been rejected as untimely.  In addition, the court’s injunction extending the registration deadline arguably resulted in another 57,187 voters successfully registering in advance.”

Let’s think about what that means.  That is 10% of the votes cast were able to be cast because of what this court did during the primaries.  It expanded access to 10% of the electorate.  That harmed nobody in any way whatsoever.  That didn’t take away anybody’s vote.  There was no fraud, there was no this or that, it just meant an additional 80,000 people were able to have their votes count and almost 60,000 people on top of that were able to register despite the confusion of a pandemic.  So that’s the background.

Thomas:         Wow, that just sounds unequivocally good.

Andrew:         Yeah!

Thomas:         Something that everybody who supports democracy would be in favor of.  End of story, okay!  Closing it out, T3BE-  Oh no, there’s more.  Sorry.

Andrew:         Yeah.  Something the Supreme Court approved of in April.  Now we fast forward to October and we’ve got the general election and, by the way, COVID is way worse in Wisconsin in October than it was in April.

Thomas:         Hmm.

Andrew:         Like 30 times worse, okay?  So basically, plaintiffs went back to the same court and asked for the same result and here’s what – I should – let me explain that.  They went back to the same court and they asked for a whole bunch of relief.  They asked for what you might call the liberal wish list.  We want extended deadlines, but we also want mailing ballots out to all the registered voters, we want you to get rid of that “let’s all lick the envelope” thing, we want you to get rid of proof of residency requirement.  We want a whole bunch of stuff.  You know, why not ask?

But the court declined to issue relief on all of those things.  It said hey, we fought this out in April and I gave you some of those things on the list, but then the 7th Circuit struck that down and the Supreme Court narrowed it even further, so I’m just gonna give you what the Supreme Court said it was okay for me to give you back in April.  Applying it, they moved the mail in registration deadline one week from October 14th to October 21, they moved the receipt deadline by six days so long as it was postmarked by election day, November 3rd, then some miscellaneous stuff you don’t care about, we’re running out of time anyway.

But that’s the important part.  This was no broader than the April injunction, but 7th Circuit, very conservative circuit, stayed the injunction then Plaintiff’s petitioned the Supreme Court to lift that stay.  That is what gave rise to this opinion, it is the Supreme Court by 5-3 ruling, picking up John Roberts, refused to lift the stay.  Why did they refuse to lift the stay?  It’s tough to say.

John Roberts wrote a one paragraph concurrence that just said “oh hey, this is different than the Pennsylvania case in which I didn’t do stuff.”  Neal Gorsuch wrote a four-page opinion that Kavanaugh joined, which is a masterpiece of saying nothing.  You can go and read it, but it is three and a half pages long, it cites two authorities, one case and one provision of the constitution, and both are cited for basically the opposite of what those cases stand for, so that’s fun.  The case it cites is a case called Burdick v. Takushi, 1992 decision that upheld Hawaii’s law prohibiting write-in votes.  They cite it for the proposition that it’s okay for states to regulate elections so long as those regulations are content neutral.  This kinda seems like the exact opposite of that here.

Thomas:         [Chuckles]

Andrew:         In any event, the only other citation in the Gorsuch concurrence is to Article 1, Section 4, Clause 1 of the constitution which says “the times, place, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but Congress may at any time by law make or alter such regulations.”  That is being cited and I wanna read you the provision.  So, I just read you, that’s the constitution.  That is being cited not with even a signal as evidence, as conclusive proof for Neal Gorsuch saying the constitution provides that state legislatures, not federal judges, not state judges, not state governors, not other state officials, bear primary responsibility for setting election rules, which again is damn near the opposite of what that constitutional provision actually says.  So that’s all the other justices giving transparently flimsy rationales.

Oh!  I have to add this because it is in the Kagan dissent and I think it is very forceful.  If you wanted.  So, we’ve now said the primacy, state legislatures are the driving factor in how we regulate elections.  Thomas, if you wanted to take a stab in the dark, Price is Right rules, when is the last time you think the Wisconsin state legislature sat and met?

Thomas:         Oh!

Andrew:         Yup.

Thomas:         Now my brain is trying to figure out how Price is Right rules apply. [Laughs]

Andrew:         In other words-

Thomas:         If I go too early-

Andrew:         Yeah, if they last met on October 15th and you say October 14th that’s an automatic lose.

Thomas:         Oh, so I have to say-

Andrew:         You have to pick a day before the earliest that they’ve met.

Thomas:         I think that’s the opposite, I think I’d pick today and then I’d win no matter what! [Laughs]

Andrew:         [Laughs]

Thomas:         Let’s see, well COVID’s been an issue and I imagine – I wanna say before the summer, like April.

Andrew:         Dead on, April!

Thomas:         Wow!

Andrew:         Wisconsin’s legislature has not met since April, so this concern that Neal Gorsuch has for, you know, the court’s usurping the power?  The legislature doesn’t care!  They haven’t tried to do a damn thing about this, they haven’t met for 6 months!  Alright, I’ll calm down a little bit, but only so I can tell you that as bad as the Gorsuch concurrence is and as unreadably blah as the Roberts concurrence is, we then get Brett Kavanaugh’s eight-plus page opinion which is terrifying.  It reads kind of like a murder – like a Halloween slasher fic.  You read one and it’s the first pop scare where you see the knife.  Every section you read gets worse and worse.

Thomas:         Hmm.

Andrew:         Page 6, “Voters who” (this is Brett Kavanaugh explaining why he is overturning an injunction that allows Wisconsin voters to vote in their election even if the post office does something stupid and loses their ballot for a couple of days.) (Quote) “Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the states nonetheless count their votes.  Voters who submit their absentee ballots after the states deadline similarly do not have a right to demand that the state count their votes.” 

Yeah, well thanks, Brett, but this is an own goal of an analogy.

Thomas:         Yeah.

Andrew:         If you show up, if the polls close at 9 and you show up at 8:30 and you’re in line, you get to vote at 10:30.

Thomas:         Yeah.

Andrew:         You get to vote at 11:00.  You played by the rules.  If something interferes with your ability and you’ve made a good faith effort, that’s exactly what extending deadlines is about you clownhorn!

Thomas:         Ugh, it’s so frustrating. 

Andrew:         Yeah.

Thomas:         Even Mr. Fantastic himself cannot keep from cursing.  I’ve had to edit out ten minutes of just-

Andrew:         [Laughs]

Thomas:         -a tirade!  Epithets, you don’t even wanna know what Andrew’s been – it’s frustrating because it’s so obviously fake.  It’s just not real.

Andrew:         Yup.  That’s the first one saying the analogy, “look, we’re just saying you gotta play by the rules” while ignoring that these are folks who are playing by the rules.

Thomas:         Yeah.

Andrew:         They have behaved in good faith and now it’s out of their control and now your ballot in Wisconsin might not count because of what the post office does, not because of what you do.

Thomas:         You know – sorry if this is not the right time to bring this up, but I’ve been thinking.  We talked about this a while back, because this has been a long, long war on mail in ballots going back months and months at least that they’ve been trying to do this, and we brought it up back at the time but I feel like it’s worth bringing up again right now which is why do they even think this would benefit them?  I’m not even entirely sure – do they know that more Republicans will have turned in their ballot with the mail?  Sorry, are they sure that more Republicans than Democrats would have mailed their ballot in time whereas Democrats would have been a little bit too late?  What are they thinking here?

Andrew:         Here’s what they’re thinking.  What they’re thinking is the stricter the requirements the more that favors Republicans.

Thomas:         Hmm.

Andrew:         It doesn’t – even if in any one precinct in any one, even in any one election, it turns out there’s a counterfactual well, you know, take Florida for example.  As it turns out more of these mail in ballots were actually Republican than Democratic ballots.

Thomas:         Yeah, they probably will be.

Andrew:         Right, which very well may be the case in Florida, it doesn’t matter.  What they want is a strategy that reduces the size of the electorate as much as possible because then it’s easier to have outsized influence.  If the denominator is smaller-

Thomas:         Yeah.

Andrew:         And your numerator stays basically the same, that’s how you make a bigger number.  That’s the strategy, just shrink the denominator and we see it in action.  So that’s page 6. 

It gets worse.  Page 7 says “Those states want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

Thomas:         Yeah.

Andrew:         That’s a sentence that Brett Kavanaugh wrote.  “And those states also want to be able to definitively announce the results of the election on election night or as soon as possible thereafter.”

Thomas:         No.  That’s not how it works!

Andrew:         Those sentences, as well as the previous ones I read from page 6 are unsupported by any citation to any case or statute anywhere.

Thomas:         They’re unsupported by the universe.  They’re unsupported by reality, that’s not how it works.  States do not just declare the winner that night, the media does that.  Am I losing my mind?!

Andrew:         No!  You are no losing your mind.

Thomas:         You know, I tweeted satirically, sarcastically, yeah, they want it just like the founders wanted it.  I’m sure election night, 1792 or whatever, they finished that night.  I’m sure!  Isn’t that how that worked Andrew?  They counted all the votes in an hour then it was over.  Okay, I could be wrong on this, isn’t part of the reason why there’s a four-year lame duck period that’s way too long-

Andrew:         [Laughs]

Thomas:         Part of it because the counting the votes process and making sure that’s all correct?

Andrew:         Yes, of course that’s what it is because you were using a stone abacus and then delivering the results on horseback to Philadelphia.

Thomas:         One national abacus! [Laughs]

Andrew:         Yeah!

Thomas:         It’s like a giant monument-

Andrew:         Of course it is, and again look, I’ve said this before, I will repeat it again.  The way in which you can tell that a Supreme Court Justice is just making something up is look to see how far they have to go between citing authorities.

Thomas:         Yeah.

Andrew:         Then look to see what authorities they cite, which is a good segue to this next point.  I will tell you, I reached out to NYU law professor Richard Pildes who declined to come on the show but I gave him very short notice.

Thomas:         Sure

Andrew:         For today. 

Thomas:         Let me know if we’re feuding or not.  So we’re not feuding?

Andrew:         No no no no.

Thomas:         Okay, no feud.

Andrew:         He’s a super smart guy who’s done a lot of good work and I’m about to tell you-

Thomas:         Because we’re overdue for a podcast feud is all I’m saying.

Andrew:         [Laughs]

Thomas:         Not this person, okay, later on.

Andrew:         I will.  If I were Professor Pildes I would be as angry as I am right now, so I don’t know how that works, but Brett Kavanaugh says “Particularly in a Presidential election, counting all the votes quickly can help the state promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious matter.  The states are aware of the risks described by Professor Pildes,” and then quotes from his law review article.  “Late arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result” (still quoting from Pildes here) “if the apparent winner the morning after the election ends up losing due to late arriving ballots, charges of a rigged election could explode” (end of quote). 

That is from Pildes in a law review article I will link in the show notes which you can read for yourself called “How to Accommodate a Massive Surge in Absentee Voting.” You might suspect from the title that this law review article is in fact advice to states about how to accommodate a massive surge in absentee voting.  It is not how to interpret the law, it is to say hey, there’s probably gonna be a lot of absentee voting in this coming electoral cycle and you might wanna change your laws now, or change your regulations, so that you’re not swamped on election day.

Thomas:         Hmm.

Andrew:         It’s way – in terms of misquoting, and this is – again, if you’re doing a fact site this is 7 billion Pinocchio’s.  This is deliberate, grotesque misuse or stunning incompetence by somebody who is too smart to be stunningly incompetent. 

Pildes, in his law review article, uses that language of “charges of a rigged election could explode,” but the law review of article, in turn, cites back to a popular article that he wrote for Lawfare Blog a couple of months earlier, which is “Reducing One Source for Potential Election Meltdown.”  Here’s the quote from the Lawfare Blog article, (quote) “If the presidential election this fall is close, with the margin of victory turning on a couple of close states, it is not hard to imagine President Trump seemingly pulling ahead on election night and in the important next-day coverage but then falling behind over the next week or more as those decisive states shift to the Democratic column when the full canvass of votes becomes complete. And it does not take a fertile imagination to picture what would then erupt in the courts, on social media and maybe in the streets. The same is true if a red shift turns a seeming victory for (presumptive) Democratic nominee Joe Biden into a second term for Trump.”

In other words, Pildes – and in both articles Pildes is arguing for universal mail in voting.

Thomas:         Yeah.

Andrew:         What he’s saying is yeah, the reason that states ought to adopt universal mail in voting is because if you have a tiered system like this a goddamn monster like Donald Trump could take it and cause chaos and sew dissention by pretending to win when we know he’s actually lost.  And Brett Kavanaugh cited that law review article, it’s one of the only citations in his opinion, for the proposition that we ought to let Donald Trump monkey with the election.  It’s just …

Thomas:         It’s even more frustrating how mediocre white men are allowed to be and be Supreme Court Justices.  Why didn’t we vote for Hillary in 2016, everybody?  This was avoidable!  This was all avoidable!

Andrew:         Yup.

Thomas:         It was your plan to get?! No.  I’m not gonna go into it.

Andrew:         [Laughs]

Thomas:         You’re gonna get somebody better elected in 2020?  Well guess what, it’s Joe Biden and now we don’t have a court and it’s even harder.  Let’s learn that lesson this time, go vote in all the ways that Andrew just told you to vote, if you have your ballot and you haven’t turned it in, all that stuff.  Please put an end to this.

Andrew:         Given the timing I will not read the very worst, I will just refer to it and let our readers go read it for themselves, which is page 9, footnote 1.  I had a big section on this, but this is in which Brett Kavanaugh approvingly cites to Bush v. Gore for the proposition that – and if this does not terrify you to your bones, to play on Halloween, I don’t have anything to scare you anymore than this. 

(Quote) “As Chief Justice Rehnquist persuasively explained in Bush v. Gore, the text of the constitution requires federal courts to ensure that state courts do not rewrite state election laws.” (End of quote).  I want you to marinate on that a little bit.

Thomas:         What?

Andrew:         What that is saying is “I want, as an affirmative act of right-wing judicial intervention, for the Supreme Court to strike down state court opinions, state Supreme Court opinions, interpreting state court law if we think that those state courts are rewriting what the state legislatures did.”  That’s what that sentence says.  That says yeah, states are not sovereign, do not have the final say over how to interpret their own laws, Brett Kavanaugh does.

Thomas:         That just doesn’t even seem right. [Laughs]

Andrew:         It’s clearly not right.  It is clearly designed to pave the ground for if this election is close and they can come up with a tortured explanation for how to cut off- and look, we have one shot to get this right.

Thomas:         Yup.

Andrew:         The shot to get this right is don’t give them the ability to draw that line.  It is why I have emphasized, make sure your vote is going to count.  If you have any doubts about it, go back and listen to the A segment and figure out whether you can show up in person, whether you need to bring that mail in ballot with you or not, how to handle that.  Tweet at us if you can’t figure it out, but get out.  Vote.  Make sure your vote counts, because if it is close, they will try these tactics. 

Again, if it’s close don’t think we’re going to give up here!  [Laughs] We’re not saying that.  We’re saying let’s deprive them of this weapon.  Let’s make it so that Pennsylvania’s, Wisconsin’s, Michigan’s first night tallies are not capable of having a line drawn them that arbitrarily hands what looks like a victory to Donald Trump.  The only way to do that is to vote in numbers too big for them to manipulate.

[Patron Shout Outs]

T3BE Question

[Segment Intro]

Thomas:         And now it’s time for T3BE.  Boy, I’m very humbled from this.  Correct use of the word “humbled,” by the way.  Not like “oh I’m so humbled by the fact that I’ve just accomplished something and won an award,” all the wrong ways that people use it when they’re actually the opposite of humbled.  I’m humbled by the fact I just got the last one wrong.  It’s a humbled state, let me see if I can be un-humbled.  Here we go.

Andrew:         And Thomas, this is T3BE number 200.

Thomas:         Oh wow!

Andrew:         I’m very excited to see where we go from here!  A bank agreed to lend a merchant $10,000 for one year at 8% interest. 

Thomas:         Okay.

Andrew:         The loan proceeds were to be disbursed within two weeks.  The merchant intended to use the loan proceeds to purchase a specific shipment of carpets for resale at an expected profit of $5,000 but said nothing about these plans to the bank. 

Thomas:         Hmm.

Andrew:         The bank failed to disburse the proceeds and refused to assure the merchant that it would do so. 

Thomas:         Huh.

Andrew:         The merchant was able to secure a loan from another lender at 10% interest for one year.  However, by the time the merchant started the application process for a substitute loan, it was too late to pursue the opportunity to buy the shipment of carpets.

Thomas:         Interesting.

Andrew:         In an action against the bank for breach of contract, which of the following amounts is the merchant likely to recover?

Thomas:         Ooooh one of these!  Okay.

Andrew:         Yeah!  This is a damages question.  A) Nothing, because damages for lost opportunities are not recoverable.

Thomas:         Huh.

Andrew:         B) Nothing, because the parties failed to tacitly agree that the merchant would be entitled to damages in the event of a breach by the bank.

Thomas:         Oh jeez.

Andrew:         C) The difference in cost over time between a loan at 10% and a loan at 8%; or D) $5,000, the merchant’s foreseeable loss.

Thomas:         So, it says the loan proceeds were to be disbursed within two weeks.  So I don’t know if that means, I don’t know that that means it’s in a contract or what, it just says “were to be.”  Then it says, you know, intended to use it to buy the carpets, blah blah blah, said nothing about the plans to the bank.  I dunno if that matters.  Then it says “the bank failed to disburse the proceeds and refused- This part makes even less sense – refused to assure the merchant that it would do so.  What?  So it can’t even do it at all, I guess. The merchant was able to secure another loan from another lender at 10% interest, however by the time the merchant started –

Yeah, we’ve had these before.  They are confusing, I dunno if I’ll get this right, I’m trying to think what is the most – this does sound like contract law, so what is the most correct?  Well I don’t think, just not even looking at the answers.  If I have a business opportunity and a loan falls through I do not think that the lender can be liable for all the potential profit.  I just don’t think that could be how it works.  Because what if it’s ten bazillion dollars?  What if I have an amazing opportunity, I’m gonna buy a lottery ticket or something even more sure, something I can resale for tendy billion dollars, how could they be liable for all that just because they didn’t loan me $10,000?  That doesn’t feel fair.

But, I mean, they did fail to disburse the money at all.  There’s gotta be some cost to that, it does sound like they’ve wronged them.  What would that be?  There is the other loan at 10%, I guess I could see, maybe they’re liable for the difference in interest for just that period?  That might be it?  It’s either that or nothing, I think, but it’d be hard to be nothing.  It feels pretty not good for it to be nothing. 

Okay, let’s go through the answers.  A, nothing because damages for lost opportunities are not recoverable.  I think … I think its likely damages for lost opportunities are not recoverable?  But I also don’t think it should be nothing.

B, nothing because the parties failed to tacitly agree that the merchant would be entitled to damages in the event of a breach by the bank.  That could be right?  Maybe in a weird sequence of events?  I dunno if that’s right.

C, the difference in cost over time between a loan at 10% and a loan at 8%.  I mean that seems right to me.  I mean, the law would wanna assume you could be doing anything with this money, you could be going out for a night on the town [Laughs] in Vegas.  You could be taking a vacation, you could be renovating your house, you could be doing anything with it.  Therefore, I think if somebody breaches a contract here, you’re probably liable for the difference of what should have happened to make them whole and therefore I think C is where I’m leaning.  I’m not 100% certain. 

And D, $5,000, the merchant’s foreseeable loss.  I just don’t think that can be it.  I don’t think you can be liable for an expected profit.  How would they know, how would you verify that?  I just don’t think that’s it.  So I’m between C and one of the nothing answers.  Between them I would say – they’re both plausible in a different way.  A could be yeah because … they’re both kinda equal actually.  That leans me even further away from them.  You know, I’m just gonna go with C.  I can’t even narrow it between A and B, they’re very similar.  I think you could write – I think you could write a contract in which the bank would be liable if you stipulated it in the contract therefore B could be correct.  A and B are kinda equally not correct for the same reasons in my mind, I’m sure I’ll find out that’s not right.

I think it’s just C, I think it’s the difference in cost over time between the two loans because I think that’s what they lost out on by the breach and that seems reasonable.  So C, final answer.

Andrew:         Alright, and if you’d like to play along with Thomas, and if you’ve never played along before question 200 is a pretty great time to get started.

Thomas:         Yeah.  Or maybe start at 201.

Andrew:         Oh yeah!  See.  Way to discourage people from playing on this one!

Thomas:         [Laughs]

Andrew:         But in any event if you wanna do that you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore.  We will pick a winner and shower that person with never-ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         There’s gonna be a huge debate on the OA Wiki.  “Was there a question 0?  Did Thomas start with question 0?  Is that how it started?”

Andrew:         [Laughs] We will see you on Tuesday, on election day, November 3rd.

Thomas:         Yeah.

Andrew:         Remember, livestream, 8-10 on our YouTube channel.

Thomas:         Yeah, not to mention a new episode in your feed that morning, too. 

Andrew:         Earlier if you’re a patron!

Thomas:         Right, yeah, patrons always get it early.  Sunday night, my time.  Alright, thanks everybody, we’ll see you then!

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