Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 435, and, uh, if you’re a non-patron and you’re listening to this that means its election day. It’s election day, Andrew, how are you doing?
Andrew: Yeah! I’m nervous. Are you nervous, Thomas?
Thomas: Yeah. Well I’m a patron so that means I’m hearing this on Sunday.
Thomas: Currently I’m fine.
Andrew: Yeah. [Laughs]
Thomas: Totally different!
Andrew: We’re just watching football, you and me.
Thomas: Yeah, having a great time!
Andrew: Oh, remember football?
Thomas: But oh my god, election day! [Laughs]
Thomas: Oh, I’m so nervous! I’m so nervous. I was feeling a little better right up until the stuff we covered last episode with Kavanaugh where it really just put into focus – we all know how bad the court is now and how bad it’s going to be. We all know that intellectually, we’ve prepared you for that on this show, but just seeing it in action, and that’s without even Amy Coney Barrett. Just seeing how wrong Kavanaugh – aggressively stupid and wrong Kavanaugh could be. It scared me. I’ll be honest, it scared me.
Andrew: Yeah, it scares me too. The Biden campaign’s idea of backup strategies is – well, our main strategy is we’re gonna win back Pennsylvania, Wisconsin, and Michigan and then our backup strategy is maybe we’ll win North Carolina and Arizona. Their strategies are democratic in nature.
Andrew: They have to do with-
Thomas: They’re like “we will try to get voters to elect us.”
Andrew: Right. More voters to like us than like the opposing candidate.
Andrew: The Trump administration, you know, just to be clear, the entire point of Friday’s episode is to give Republican activists the ability to look at an individual slice of time, pick out the one that deceptively seems to paint Trump as being ahead, and then go get relief from the courts to try and freeze that point in time.
Andrew: That’s what the invitation is. Look, will it be successful? Probably not, but neither probably was the 2016 election. All of these are about sheafs of probabilities. Yeah, maybe there’s only a 5 or 10% chance that that works, but as of when we’re recording this Trump only had an 11% chance of winning the presidency anyway.
Andrew: Without cheating. You know, it’s just ways of layering your options to cheat. If that offends you maybe get out and vote?
Andrew: Please? We’d very much like that. Yeah, again, same caveats. If you haven’t voted and you’re planning on voting in person today make sure you do it if you’re not in an at-risk category. Take all proper precautions, social distancing, everything anyway, prepare for long lines. Go out, go vote, you know you need to do this and we’re gonna drill down on all the myriad reasons why you need to do this!
Thomas: We haven’t even gotten to hear how you’re doing, Andrew?
Andrew: I’m nervous.
Andrew: I’m nervous, Thomas.
Thomas: Woaaah. Mr. Fantastic himself.
Andrew: I’ll be fantastic on Friday, I think, but-
Andrew: But today, today I’m nervous my friend.
Thomas: Wow, that’s a sign of how serious this is. We’re still in the pre-segment. I wanted to ask you more about those topics but first we need to remind everybody if you’re hearing this on Tuesday there’s an election night live stream!
Thomas: Comin’ up real soon. Tuesday night, election night, that’s gonna be at 5 Pacific. Come join us, it’ll be fun. I’m apparently gonna eat an entire pie except I’m not because I’m trying to stick to my diet but maybe Andrew will. I don’t know.
Thomas: We may drink an entire bottle of something, though. [Laughs]
Andrew: I may drink all the things.
Thomas: I have been – I’ve been moderating lately but I think maybe – election night could be a cheat day. That’s a good slogan. Election night should be a cheat day for me, not for Republicans. [Laughs]
Andrew: Yeah, not for Republicans, that’s right. A cheat day for Thomas-
Thomas: A cheat day for your diet, not for democracy.
Andrew: Oh, I love that, I love that.
Thomas: Thank you, that’s – please elect me, Blank Q Boxman. No, vote Biden!
Breakin’ Down The Law: How Election Desks Call States
Thomas: I did wanna ask you, we ran out of time last time but following up on that episode and what you’ve been talking about here, I’m still confused as to how this could work. You mentioned freezing time, I guess [Laughing] is what they’re trying to do. Haven’t we covered the fact that these state election boards? I guess? Sorry if I don’t know the terminology, but they’re usually, they should be – aren’t they bipartisan? There’s Democrats and Republicans in the room certifying results together. This isn’t the first election in which we wanna make sure the results are right, you know? This isn’t the first time someone’s been worried about cheating on any side. There’s systems to handle this. Where does the rubber meet the road in terms of, they’re gonna be sitting there on election night and they’ll have a certain percentage that they’re complete, but those states aren’t gonna be thinking “yeah, we’ll just stop.” They have a job to do, their job is to count the votes, how would this even work to try to pause it, end it, right when the count looks good for Trump?
Andrew: Yeah, so let’s take a little bit of a deeper dive into that and let’s contrast two states we talked about on Friday. We talked about Pennsylvania and we talked about Vermont. The way that each of those states – they represent, I think, the two most extreme poles in terms of how states process ballots. Again, I think they do that because Vermont is a blue state from top to bottom. The State legislature is Democratic in both houses, the governor is a Democrat, they are committed to having as many voters vote as possible and counting all the votes in an efficacious and sensible manner as possible. We talked about how Vermont, in light of expanding voting by mail, allowed anonymously, in a nonpartisan way with oversight, but allowed state election officials to start counting results that come in by mail before election day itself. If you were an alien and you were just sort of opining in general on how elections ought to be run, there doesn’t seem to be any great – I dunno, it’s like the electoral equivalent of a gender reveal party or something. Count the ballots when they come in!
Andrew: You don’t wanna make ‘em public, that’s fine because you don’t want to artificially distort people thinking oh trends are going one way or the other. Not only do I totally get that, I think that’s the right course of action.
Andrew: Yeah! Keep ‘em confidential but you shouldn’t have to pretend they don’t exist. Just count ‘em when they come in!
In Pennsylvania and in more than a dozen other states there are explicit requirements added by – again, uniformly, this is not just me being partisan, you know I tell you when both sides do it. Both sides engage in gerrymandering but Republicans are better at it. This is a thing only Republicans do. There is a requirement in Pennsylvania law that they cannot start opening mail in ballots until 8 pm on election day. And provisional ballots don’t get looked at until all of the mail in ballots come in. In other words, you’re gonna have different states reporting different results in a different order.
Here I can’t explain this any better than 538 did last week. Here’s what they say, and I want you to understand the numbers on this because I sort of did it in my head, but I’m just gonna quote from them. I’m gonna leave their link in the show notes. “Right now, our forecast estimates that about 6.8 million votes will be cast in Pennsylvania, on average, and the average popular vote result gives Biden about a 5-point [lead] over Trump, 52 to 47. If that panned out, that means Biden would win about 3.6 million votes to Trump’s 3.2 million (with a few additional votes for other candidates). And if the vote count followed what we saw in the primary, less than half of Biden’s votes would be in by 3 a.m. on election night, whereas around 70 percent of Trump’s would be reported.”
Andrew: Okay, so you’re with me so far. All that seems, okay, right, probably 5-point spread, I’d love bigger than that but 5-point spread seems about right. That translates into 400,000 votes out of nearly 7 million votes count, okay. Less than 50% of Biden’s are in by 3 am on election night, more than 70% of Trump’s in, those all seem like plausible assumptions. If you were to stop the counting at 3 am on election night, how big a margin do you think that would show? Given just those numbers for Donald Trump.
Thomas: The 500,000? What is it?
Andrew: Yeah, bigger than I thought from back of the envelope. I’m gonna go back to quoting 538: “This means we could be looking at a situation where Trump has a 16-point lead.”
Andrew: “58 to 42, based on 60 percent of the vote being in. But over the course of the next few days — again, assuming the same pattern we observed in the primary — Biden would win two-thirds of the remaining votes, which would precipitate a 21-point shift in the overall margin-
Andrew: – from 3 a.m. on election night to the final result.” So, now, I want you to think about that. We are used to you see 60% of the vote in, we are used to disregarding “oh it’s 5% of the vote in in Idaho and the Democrat is up 70/30” and you’re like “well, pretty sure the Democrat’s not holding onto that 70/30 win with 5% in by the time they all come in.” Again, they won’t. But if you see a state and 60% of the results are in and Trump leads by 16 points, I think intuitively I’d be like, alright, Biden has lost Pennsylvania. It’s why I quoted and read directly from this report because the math is the math.
Based on the overwhelming – again, you’ve seen the news stories, it’s a positive thing that turnout is way up and that turnout by mail is orders of magnitude higher than it has ever been in the past. But what that means is the way in which you have watched returns coming in is also very, very different than it has ever been in your lifetime. You need to keep that in mind. We will remind you if you are watching our live election livestream tonight!
Thomas: Yeah, most likely I’ll be freaking out and Andrew’ll be trying to remind me. [Laughs]
Andrew: Yeah. That is 100% correct.
Thomas: But I’ll let ya, I’ll let everybody know that in 2016 I was freaking out and Andrew was trying to correct me and he was wrong. But this is a different election, I think.
Andrew: Yes. [Laughs]
Thomas: Different way that votes are being counted, and hopefully different result.
Andrew: And I wanna talk about that, but first I wanna also talk about how election desks make their calls, because one of the things – and we talked about this on Friday. So, yes, I emphasized the Kavanaugh decision, super-duper bad. Yes, they have a strategy that is designed to delegitimize the election. The reason we’re talking about that is that you can do something about it. Not being swayed by false narratives is incredibly useful, and now you know. If Uncle Frank says “well, look, 60% of the votes in and Trump’s up by 10 points in Pennsylvania, you really think they shouldn’t call it?” You can say yes. Mathematically they should not call it.
Andrew: It is very clear, and I’m sorry that our intuitions don’t match up to math, but no, the 60% that’s come in is heavily skewed towards Trump, the 40% that’s yet to come in is heavily skewed-
Thomas: But this is how it’s always worked! This is, like – I know it’s a little bit different this time, maybe, you know, because of the vote by mail and all this weird stuff, but we’ve always known this.
Andrew: Yup. I think we will be helped by the fact that no network is going to call states under these conditions.
Thomas: Yeah. Ew, unless Fox News decides to lose their mind.
Andrew: Well here’s what they do. Let’s talk about everybody except Fox News first. That is ABC, CBS, CNN and NBC. They all use an outfit called the National Election Pool, which is partnered with a nonpartisan entity called Edison Research. They are independent, they are third party, they are not owned by any of the major political parties. Primarily what they do is they conduct rigorous exit polling and then they match up the exit polling against the actual vote totals as they come in. NEP does all of that calculation, then they license out their data to all of the news outlets, which, like I said, ABC, CBS, CNN, NBC, Reuters, and the New York Times among others.
Everybody is getting it from the same source, with an asterisk. What NEP does with their exit poll data is they use, I’m gonna quote from their website now, “using proven probability-based sampling methods, the exit poll is a survey of voters conducted as they exit their polling places. It is the only survey measure of real voters and it’s conducted at hundreds of polling places. The exit poll also includes extensive interviews with in person early voters and telephone surveys of early and absentee voters. Edison Research is the sole provider of exit poll data to the NEP.”
Okay, here’s the way you put all that together. 538 says average lead by Biden in Pennsylvania is 5 points. As people vote, Edison Research interviews them with exit polling and they say “oh look, our exit pollings show Biden is leading by 6 points.” Then what you do is you don’t just kind of look at raw totals, but you looked at the precinct by precinct levels when the polls close to match up how well the actual voting is corresponding to the exit voting. All of a sudden if 10% of the precincts are in and they’ve matched up – suppose 10% of the precincts come in and the aggregate totals show Biden up by 3 but they match up to the exit polls, they actually show in those precincts, those were heavily Republican precincts-
Andrew: -and they show that Biden should be down by five. In other words, Biden is overperforming the exit polls by 8 points and the exit polls had Biden winning by 7 points.
Andrew: They wouldn’t call Pennsylvania with just 10% of the voting, but they would be very, very close to doing so.
Andrew: They would say oh, oh look, our data showed a healthy win for Biden, our polling data showed a healthy win for Biden, and as we match up numbers, actual real votes to the polling data we see that our polling error was we underestimated how many people were voting for Biden. Biden’s gonna win this going away, he’s gonna win this by 12, 13, 14 points. What they would do is, then, they use sophisticated regression analyses to figure out when they’ve counted enough vote to validate that their exit polling data-
Andrew: -is accurate enough such that now we can say yeah, you know what? That’s it, we’re done. That’s why, by the way, when the first round of polls close and Vermont comes in and they call it instantly for Joe Biden, that’s because-
Thomas: Statistically it’s [Laughs]
Thomas: They can call California with zero percent, basically.
Andrew: Yeah, and they do.
Andrew: Remember that. The wider the margin is the less data you need to validate that margin because even systematic errors are unlikely to alter the result. In California you could be off by a single – you could be off by an entire standard deviation and that doesn’t matter at all. Biden wins by 15 instead of by 25, or Biden wins by 35 instead of by 25, it doesn’t matter. Biden wins, there you go, that’s it, we’re done. The closer the race is the more you need actual data to validate your exit polling model, and within a certain margin they won’t call it at all.
Thomas: Hmm, yeah.
Andrew: That’s how decision desks make their decisions.
Thomas: And especially because, correct me if I’m wrong here, the fact that Florida got called incorrectly in 2000 I think did lead to a bit of reform in how – news desks did not wanna do that again.
Andrew: That’s 100% correct. Remember here that we are aided by the capitalist system.
Andrew: No, seriously. These third-party outfits are paid by campaigns and by media outlets to deliver accurate information.
Andrew: If they don’t then you stop paying them! It seems kind of silly, but it means that they have an incentive above and beyond journalistic integrity to want to get it right because if you don’t get it right somebody is gonna come along and say “hey, use my outfit instead.” Which, by the way, is what Fox News does. Fox News uses AP data. Again, they’re not just making stuff up.
Thomas: Yeah, no, they aren’t. I wanted to emphasize, Fox News on election night doesn’t just make stuff up. They don’t just do some comical North Korea “every state red,” they don’t do that. They were – they did act a little differently in 2000, so they don’t go along with everybody, but yeah, they also try to cover these things more or less correctly.
Andrew: I’m going to link, again, the article that we linked in the show notes, it’s the Fox News August 11th interview with the head of their decision desk that you can share with Uncle Frank as to why Fox News is not going to call Pennsylvania a minute after midnight and say “ope, that’s it, enough votes are in in Pennsylvania, Donald Trump wins.” Now that’s not to say Sean Hannity won’t do that, he’s already done that on the air. Fox has gone to war with its decision desk on multiple occasions. Yeah, Tucker Carlson might declare victory and withdraw, but the news organization, the decision desk, will not issue and opinion in these circumstances even while their talking heads might be deliberating about it.
Look, what does that mean? That means not just totals matter but margins matter. Some of the other tips I’ll save for you for when we’re doing our live stream.
Andrew: I won’t give away everything here.
Andrew: I did share out on Patreon, if you’re a patron at any level, and I will probably update this before you’re hearing this, but last week on Wednesday, six days out before the election, I did a very, very long post of sort of what I’m looking at in the polls, what a systematic polling error means, would look like, the conservative case for how to be cautiously optimistic about Biden even in light of the 2016 election and all that. I think it’s a good read, if you’re a patron at any level you get a chance to see my thoughts on that prior to our live stream.
Thomas: Ooh, I just remembered, we gotta fill out our fantasy electoral college maps.
Andrew: We do!
Thomas: Hopefully I’m better at that than at this year’s Fantasy Football team and the OA league.
Thomas: I’m taking the year off since I won the championship last year.
Andrew: Yeah, well.
Thomas: [Laughing] I’m just taking the year off.
Andrew: You gotta-
Thomas: We’ll let other people win.
Andrew: I wanna move from – I think it’s fair to have cautious optimism about Joe Biden on this election day. Cautious optimism, still go out, do your duty, vote. At last numbers before our record 538 gave Donald Trump an 11% chance of winning.
Thomas: Way too high.
Andrew: Yeah, which is obviously way too high.
Thomas: And I don’t mean they’re wrong, I mean the universe is wrong.
Andrew: Yes, yeah.
Andrew: I understood that.
Andrew: I understood you to be saying that and I want to clarify that I am saying the same thing too. The Democratic 538, same model, Democrats chances of retaking the Senate are 78-22.
Andrew: In other words, Republicans have twice as good a shot as holding onto the Senate as they do of winning the presidency. If you’re nervous about Donald Trump pulling a surprise win, which you should be, you should be twice as nervous about the Democrats failing to retake the Senate.
Thomas: Oh god, I don’t need to be any more nervous, Andrew!
Andrew: [Laughs] I’m with you on that.
Thomas: Do I have to double my heart rate? Is that how it’s supposed to work?
Andrew: You’re really not gonna like this. [Laughs] But I absolutely need to say it, and that is every single thing we’ve talked about on this show, the Judiciary Act of 2021, how aggressively are we gonna fight back and undo what Donald Trump has done? If the Democrats don’t retake the Senate, we will have stopped Trump from doing further damage-
Thomas: Which is important.
Andrew: Which is important. But we will literally have – Mitch McConnell will remain the Majority Leader and we have moved – I mean, you saw Chuck Schumer during the Amy Coney Barrett confirmation hearing look over at Mitch McConnell and say “okay, the new standards are everything that is constitutionally permitted that is not expressly prohibited is now on the table.” Imagine if the Republicans hold onto 51 seats in the Senate. Let me just tell you very briefly what will happen.
Mitch McConnell will not just filibuster and block every judicial nominee, he’s already done that.
Andrew: He did that for two years of the Obama presidency and handed 140 judges to Donald Trump. Imagine not just being able to pack the courts, not being able to fill vacancies for at least half of the Biden presidency.
Thomas: And as he’s doing it his body will have turned entirely purple because something seems to be taking over, just a side note.
Andrew: Because he’s very obviously Emperor Palpatine from Star Wars.
Thomas: I was gonna say, it’s the force when you start going to the dark side, yeah.
Andrew: Yeah. And if you ask yourself well maybe they can reach some kind of compro-
Andrew: I want to go back to my example.
Thomas: No compromise.
Andrew: Let me prove this to you. In 2015 Mitch McConnell blocked the appointment of my friend, Stephanie Gallagher, to the bench in Maryland despite the fact she’s a lifetime registered Republican. In 2017 she was renominated by Donald Trump to the same spot and was then confirmed.
Andrew: Literally it was just-
Thomas: It’s almost like the substance doesn’t matter at all, it’s just if a Democrat did something no, and if a Republican does something yes, is that what you’re saying?
Andrew: Correct. We have ironclad proof that that is what will happen. But it’s not just the judiciary, every cabinet appointment requires the advice and consent of the Senate. Mitch McConnell could refuse to schedule hearings to nominate a Secretary of State.
Thomas: Wow. I wonder if he would do that?
Andrew: If you think oh, well we could probably break that, yeah, you could probably break that if what you were essentially doing is handing the presidency to Susan Collins, Lisa Murkowski, and/or Mitt Romney. If that’s what you’re saying, we’ve got plenty of listeners who are nervous about Biden not being far enough to the left for them, and rightly so in many cases, but Biden is way to the left of Murkowski, who’s way to the left of Mitt Romney. If you don’t want every person on a case by case basis to have to be somebody Lisa Murkowski is willing to stand up to Mitch McConnell over, not just somebody she approves of but somebody who is so good that Lisa Murkowski is willing to demonstrate spine, then make sure we take back the Democratic Senate.
Now let me tell you part of what that means. There are Democratic Senatorial candidates in deep red states who have a legitimate chance to win. They are underdogs, but they are way better underdogs than the overall 22% chance-
Andrew: -that Republicans have of hanging onto the Senate and way better underdogs than the 11% underdog that Donald Trump is. So, you know, if Trumpers haven’t given up you need to not give up on those folks. I wanna add one more bit of bad new – again, this is gonna be a happy but nervous day.
I wanna add one more bit of bad news for you to consider first. This is Robert Erikson’s article in the Legislative Services Quarterly, which is a peer-reviewed academic journal. It is from 2016, it is before the 2016 elections but consonant with the results of the 2016 election, and it is the definitive, the best academic piece of literature on presidential coattails.
It is this, (quote): “Our analysis shows that politically informed voters are more likely to vote for Congress against the party they believe will win the presidency.” (End of quote). It is called the balancing effect. For most of our nation’s history we had this belief that when Democrats win, they add coattails effect to down ballot races? That study, that baseline view, there has been serious reason to call that into question lately. There’s still some level of coattails effects on down ballot candidates, but it is balanced out by a balancing effect.
When it is perceived that one party is just gonna stomp the other side into oblivion, centrist voters, particularly those who have crossed over and supported the candidate winning by the perceived landslide say “alright, I’m a lifelong Republican, I’m gonna vote for Joe Biden, I’m not really thrilled about this Republican congressional candidate either, but I’m gonna make sure there’s something there to stand up to Biden. I don’t wanna go too far.”
Look, that’s a stupid way of thinking about politics, I’m not suggesting that you ought to think that way. [Laughs] I am saying the academic research shows, and I’ve read this study and I’ve read a fair amount in the literature, I am convinced that the balancing effect is real. By the way, we’ve talked about this, it’s part of the double whammy that hit us in the 2016 election. Everybody thought Hillary Clinton was gonna win, so Democrats didn’t show up in plenty of places-
Andrew: And, oh, by the way-
Thomas: Plus, a lot of people sent very valuable messages that helped everything and were received.
Andrew: Definitely helped the most liberal candidate win out in the Democratic primaries in 2020.
Thomas: Yeah exactly!
Andrew: You totally pulled the party way to the left.
Thomas: You sent a message and the message was received-
Andrew: Message received!
Thomas: And you got Joe Biden. Brilliant plan. You got Joe Biden and a court that’s been ruined so it’s gonna be even more impossible next time. Great job, awesome work, sorry I’m not bitter about it at all.
Andrew: No no no! We’re all bitter, and if you’re angry at us, look, you only gotta get through one more day of this and we’ll stop! [Laughs] Do the right thing today and we will never shame you again!
Thomas: Yeah, if you’re so petty that you were doing this and you can’t acknowledge you were wrong then you just don’t want things to be better. That’s just the truth. If you want things to be better there’s one course of action now, which is to vote blue up and down the ticket.
Andrew: Let me put an exclamation point on that. Academic research shows that the news coverage of the past week to two weeks is likely to have materially benefited Republican Senatorial and congressional candidates.
Andrew: If you do not want to wake up and find out that Democrats have retaken the White House, that Biden has one nice and handily, we’ve got a result on November 4th, and Democrats picked up 4 seats in the Senate but lost Doug Jones in Alabama and Gary Peters in Michigan so Republicans are gonna hold a 51-49 advantage in the Senate. If you don’t want to wake up and find that happen, you absolutely must go out and vote and you must go out and vote particularly in states – we’ve talked about how every close election there is a surprise swing state.
Nobody in Wisconsin thought they were in a swing state, or Minnesota thought they were in a swing state in 2016 until you were. I dunno what that surprise swing state is gonna be, so pretend like you are in one. I can tell you states that I think are unlikely to be swing states nevertheless have super competitive Senate races, Senate races where the Democrat has a better chance of winning than Donald Trump does, so get out there. Doug Jones has a 20% chance of winning his election, he’s not dead. If you’re a Democrat in Alabama get out and vote. Yeah, Joe Biden probably isn’t gonna win Alabama, but Doug Jones could.
We’ve talked about Jamie Harrison in South Carolina. I just wanna go through kinda quickly the states where Democrats have a real chance, a statistically significant chance of flipping a seat even though you’re looking at it and going “oh come on.” The smallest of that, probably, is Amy McGrath in Kentucky. Could you imagine if we were able to defeat Mitch McConnell? Not just knock him out of the Majority leadership.
Thomas: Oh, I haven’t even dared to dream that much.
Thomas: I just want a majority. I don’t care how.
Andrew: I agree, but if you’re a Democrat in Kentucky you’ve got a slim hope. If you’re a Democrat in Mississippi we have a strong candidate that could win. Again, massive underdog, but better than an 11-point underdog in Mike Espy in Mississippi. Again, M.J. Hager in Texas has, as of this recording, a 14% chance of defeating John Cornyn for Senate. Is that super- no, of course it’s not super likely. That’s a better chance than Trump has. Get out there. Alabama, Alaska, the Democrat has a one in four chance of winning in Alaska.
Andrew: And I don’t even know who that candidate is. It’s somebody named Gross.
Andrew: [Laughs] Former Governor Bulloch has a 1/3 chance of winning as a Democrat in Montana. These are serious, serious races. The Democrat could win in Kansas.
Thomas: I hope we pick up a few of these.
Thomas: We’re not gonna win all of them.
Thomas: But maybe we’ll pick up a few of these long shots.
Andrew: But now suppose you tell me okay, I’m still not convinced, I’m in Oklahoma. Jim Inhofe leads by 25 points, it’s Oklahoma. Why should I go out in Oklahoma? The answer is you have state legislative races that are very, very important. They are important because of what got us here-
Andrew: -from 2010, that is this is a redistricting year.
Thomas: I’ve been saying this for 4 years.
Andrew: You are 100% correct. Remember, what Republicans did in 2010 was – very little of it had to do with deep red states.
Andrew: You know, in Louisiana who the hell cares? Utah. You got a couple different congressional candidates, all those districts are gonna be red, all the people who live there are red, sorry about our friends in Salt Lake City.
Thomas: Yeah, there’s not much Gerry to even Mander there.
Andrew: Yeah! [Laughs] That is exactly right. Where they killed us was by taking purple states like North Carolina and blue states like Wisconsin and turning them into massive Republican factories.
Thomas: By winning when we were snoozing-
Thomas: By winning these state level elections, it’s catastrophic. Part of it was just bad luck timing in that it was two years after Obama. 2020 it’s also a general election year, that helps Democrats a lot more because Democrats vote, historically, vote way more in election years than they do in non-election years. But, yeah.
Andrew: Democrats can do two different things here. The first is in deep blue states they can ensure that they win back unified control or supermajorities such that they can cram down whatever they want on Republicans. Best example for that, the State of New York. I do not have – I’ve been through the New York redistricting rules.
Andrew: But here’s the thing, it requires the Democrats and Republicans to cooperate on drawing the map, there’s this bipartisan commission, blah blah blah blah blah. But here’s the thing, if there’s a deadlock and one party has a 2/3 majority in the legislature, they can override the commission map, they can break the deadlock. Democrats have 2/3 of the New York State Assembly, they do not have 2/3 of the New York State Senate. However, there are 10 Republican State Senators who are retiring, so if you live in New York you could be like look, I don’t have federal races that matter at all and you don’t, Biden is gonna win whether you vote in New York or not. There’s no New York – Chuck Schumer isn’t up for reelection, yeah.
But you being able to vote and bring in a Democrat State Senator may make the difference between whether Democrats can offensively gerrymander in New York to counteract what the Republicans are doing or whether they’re gonna have to do what a bipartisan commission does and take away one of our biggest abilities to block what Republicans are trying to do.
How about the polar opposite of New York? How about the State of Texas? Democrats cannot retake the State legislature. The Texas governorship is not up on the ballot this election, but we can do the opposite.
Andrew: If we flip – yeah. [Laughs] If we flip nine seats in the Texas House of Representatives, the Texas State House, then Democrats – they’ve got no chance of flipping the Senate.
Andrew: Republicans would control the governorship and the Texas Senate, but Democrats could control the Texas House.
Andrew: And stop Republicans from gerrymandering every single – Texas is gonna have, after the next round of redistricting ‘cuz they’re a growing state, they’re gonna have 39 congressional seats, they will be second to California. If Republicans can cram down, 38 of those will be Republican. They’ll draw a district that runs from Dallas to Houston through an alley.
Thomas: Yeah. This is gonna be so important for 2022.
Andrew: Yeah! I’m not gonna go through each of the states, but I will tell you it is shocking the number of states – Maybe I’ll talk about this during our live stream. Democrats have a real chance of preventing Republicans from redistricting Kansas at their will.
Andrew: Not because they’ve got a chance of taking back the legislature, but because Kansas, remember, elected a Democratic governor in Laura Kelly, so-
Thomas: I did not remember. [Laughs]
Andrew: Yeah! The Republicans have super majorities in the State Senate and the State House. In other words, they can override a Democratic governor’s veto. Legislature proposes a ridiculous redistricting map, governor Kelly vetoes that, the legislature overrides the veto because Republicans control 2/3 of the chambers in both the Senate and the House. Democrats only have to win three Senate seats or one House seat to take away that supermajority, then it forces ‘em to the table. So, there you go, I cannot find a state – I looked! I wanted to have one example, I wanted to be like “alright, if you’re a Democrat in Alaska stay home,” but I can’t. I cannot find a single State-
Andrew: -in which you, as a Democrat, do not have a meaningful say this election. That’s my last plea-
Thomas: Absolutely great message. Let me try to sum it up for anybody and you tell me if I’ve got it right. In every State, no matter where you are, there is something you can be doing. I think this is the downside of everything becoming so nationalized in terms of our focus. Everything’s about federal government, everything’s about the presidency and maybe the Senate and all that. There’s so much more than that, there’s state level stuff that’s important and it’s going to have a major, major effect. There is something, based on your analysis, Andrew, there is something for you to do as a Democrat in every State. There’s something that you could either proactively be causing with your vote, proactively be helping, or that you could be preventing, a great harm that you could be preventing by not handing unmitigated power over to Republicans.
Thomas: Make sure you voted already. [Laughs] Or make sure you vote because there is something to be accomplished in every State.
Andrew: Yeah. The number of OA listeners who say “yeah, you’re right on, I totally agree with you but I live in Tennessee so who cares?” I see that a lot and again, I can’t tell ya enough, there’s something for you to do in every state.
Thomas: Yeah! We need to become like Republicans were for the last 10 years. They were better at doing this than we were, and we need to change that.
Andrew: Look, one kind of last plea, and that is even losing can have value. The greatest example of that is Hillary Clinton lost Texas by almost 10 points in 2016, by 9 points. Beto O’Rourke took Ted Cruz down to the wire in 2018. Two years later, lost by 2.6%, and again that’s against punchable Ted Cruz. Somebody that everybody hates. But the fact that O’Rourke was able to lose narrowly is what enabled the Democrats to invest in Texas this year. Probably Joe Biden is gonna lose Texas this year, but Donald Trump had to campaign and go to Texas in the last week and a half of the campaign!
Andrew: In order – wasn’t that beautiful? That prevented him from going on offense elsewhere, it was brilliant.
Thomas: That’s true!
Andrew: Yeah, if you’re sitting there, if you’re lamenting that you are stuck in Alabama or Tennessee or Kentucky or whatever, part of how you convince the national party, oh hey, there’s something worth counting here, is by showing up and by losing by smaller margins than you lost last time. You ever really wanna send a message with your vote, that’s a way you can send a message with your vote.
Thomas: An actual message! A real message.
Andrew: An actual, real message, because that’s just math. [Laughs] I know we don’t need to do this but I’m gonna do this aside. The reason your vote for a third-party candidate doesn’t send a message is because voting is confidential. It’s a secret ballot, so we can’t figure out when you vote, you know, Jo Jorgenson or Deez Nuts or whatever-
Andrew: I think Deez Nuts is on the ballot again this year.
Thomas: Yeah, probably. Definitely a write in candidate.
Andrew: Yeah, they can’t figure out if you’re making a principle statement-
Thomas: Yeah, they don’t know if you’re a never Trumper-
Thomas: Or that you secretly wanted – or maybe you wanted someone more moderate than Biden. [Laughs]
Thomas: Biden was too radical left for you.
Andrew: Which, by the way, is where 2/3 of Jorgenson’s political positions wind up because she’s a libertarian.
Andrew: Anyway, we know, I’m not gonna waste any effort-
Thomas: That isn’t a valuable message, it doesn’t do anything.
Andrew: [Laughs] On somebody with less of a chance of being President than I have.
Thomas: But Andrew, the 5%! They gotta get the 5% threshold, right?
Andrew: The quick thing I will say with that, because again, our listeners are smarter than this. Look back at every political party that’s gotten to 5% in the past, eh? Go back to 1960, check it out. Lots of them have gotten there and guess what? None of them has it made the slightest bit of difference in the next election. That is an urban myth, it has absolutely nothing to do – if you really want third parties to have viable ballot access then you need to agitate for ranked choice voting in your state.
Andrew: Stop trying to mess up our Presidential elections, do the hard-
Thomas: Who do you think is more likely to deliver you election reform giving you ranked choice voting? I mean I’m not saying it’s highly likely in either case, we might not get it. What do you think the best way to get ranked choice voting is? Do you think it’s to throw away your vote on nothing? Or to maybe allow, in some way, to help Republicans take power? Do you think they, Republicans don’t want any voting! [Laughs]
Thomas: Let alone more choices, more power to the voter. The only chance we have of getting to a place where third parties might be a factor is by voting in Democrats or at least humans who are responsible to public pressure. Republicans are not responsible, they are only responsible to Trump, and Trump does not give a crap about your ranked choice voting, it’s not going to happen.
Andrew: I agree with that 100%, but I wanna add another bone to that. If you organize at the local level, local politics, that’s not 100% captured by national politics yet. I don’t care, if what you wanna tell me is that in Massachusetts, let’s say, the way to get ranked choice voting on the ballot is a coalition of left wind Democrats and the remnants of the Republican party in Massachusetts. That wouldn’t surprise me.
Andrew: And if you wanted to say hey, I’m gonna vote at the assemblyman level for J. Random Republican to be for city counsel because he’s promised for ranked choice, great. But you’ve got to do – there is right now, as far as I know, no ranked choice initiative grassroots work being done in Massachusetts. Build the organization first, do the work, it’s hard. The idea that you can just sort of hack the ballot by getting some dufus who’s gonna get a tenth of a percent anyway to five percent, imperially it’s false. It has not happened, otherwise Ross Perot’s reform party would be a perennial feature on our landscape. He got 19% of the vote in 1992, and that translated into nothing.
Andrew: I’ll step down off my soapbox. I don’t mean to berate – I wanna say, I had this great segment on the E. Jean Carroll lawsuit, we’re gonna have to do that, as with all of our whiteboard stuff, in a post-election.
Thomas: We’ll see if we still live in a democracy after today’s episode.
Thomas: Stay tuned.
Andrew: It is a truly – I will say this, you’re gonna enjoy this deep dive, not just because it has an Andrew was sort of wrong attached to it, but because this is a truly fascinating judicial opinion and it’s gonna give me the chance to talk about a lot of things that I’m really excited to talk to you about as listeners. You should be excited on the merits, too.
Thomas: We’ve given you a lot of reasons to go out and vote for Joe Biden, but maybe the best one is finally getting an eminent domain episode. [Laughs]
Andrew: [Laughs] I promise in December we will do – November or December we will do eminent domain.
Thomas: I think we should wait until January, like after he’s sworn in just to be safe.
Thomas: Also, part of me thinks we should never do it because it would just be funny at this point.
Thomas: No, we should. [Laughs] You have our solemn pledge, maybe there is an on the fence voter who didn’t listen to any of our other stuff.
Thomas: Not convinced by any of our other messages, but you know what? I really want a deep dive on eminent domain so I’ll go out and vote Joe Biden. That was for you, okay, so in January assuming he’s sworn in we will give you eminent domain.
Andrew: There you go.
Andrew: Vote vote vote! Join us at 8 pm Eastern Time, 5 pm Pacific tonight, we really wanna see you there. If you haven’t had a chance to vote on the questions thread, you know how to do that, just head on over to patreon.com/law and upvote with the heart the questions you wanna see answered. Post the questions you wanna ask us, and oh man, patrons have gotten so much great stuff lately. It’s too much to even count.
[Patron Shout Outs]
Thomas: And now it’s time for T3BE, answer time. Okay, we get to find out how I am for 200.
Andrew: Yeah. Question 200 was a contract damages question. Bank agreed to lend a merchant $10,000 for one year at 8% interest, the merchant was then going to use those proceeds to buy some carpets which had an expected profit of $5,000, didn’t tell the bank. The bank reneged on the loan, then the merchant had to go get a loan from another lender at 10% interest for the year and by the time they got that money the carpets had already been sold to somebody else. He lost out on the business opportunity. In an action for breach of contract, which of the following amounts is the merchant likely to recover?
Your options were, and this is a question of damages. The options were A, nothing, because damages for lost opportunities are not recoverable; 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; C, this is the expectation damages, 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. Those are the lost opportunities damages.
You went with C, the difference between the loan at 10 and the loan at 8. Before I tell you whether you were right or not, I wanna tell you in general the way to think about contract damages is to think about two principles.
If you think about these two things you will almost always come up with the right answer. The first is the court wants to put the parties in the position that they would have been in had the party who breached the contract not breached the contract.
Andrew: The second is the court wants to be able to do that with a minimum level of things that you could actually prove in court.
Andrew: Let me give you a preposterous example.
Thomas: That is, roughly speaking, what I had in mind.
Thomas: [Laughing] I’m I got it right! We’ll see.
Andrew: Preposterous example, I wanna borrow $500 from the bank and the bank fails to lend it to me, says they’re gonna lend it to me but then they don’t show up with the money, then I say well look, I was gonna go to this yard sale and the guy was selling a Picasso for $500-
Andrew: And I could demonstrate, I would’ve bought the Picasso but I didn’t have the $500 and the Picasso’s worth a million, so therefore you owe me a million dollars.
Andrew: The court would be like “that’s the dumbest thing I’ve ever heard,” and would find some legal way to say “that’s the dumbest thing I’ve ever heard.”
Andrew: On the other hand, think about it this way. I say I am about to open up, I’m about to close on the real estate to open up a building, and I need to pay the surveyor by tomorrow to file the survey otherwise even though I’ve already built the building the entire deal’s gonna fall through and I’m gonna lose $10 million. You say yeah, I get all that, absolutely will wire you the money and then I never wire you the money, and I have demonstrated-
Andrew: -specific need, directly tied to the action.
Andrew: And you might feel differently about my responsibility in that situation. I say that to tell you the answer here, that A, you were correct to exclude A. It is not that lost opportunities are never recoverable.
Andrew: They may be recoverable in some cases depending on the tightness of the fit. The real question is does this present that kind of a case? You went with C, which is sort of the ordinary expectation damages, and Thomas? Question number 200, you got that exactly correct.
Andrew: Yeah! Look, there are lots – think about my building example.
Andrew: This case was there’s a random business opportunity. Look, there are lots of banks out there.
Andrew: Right? It was not like I was depending on one-
Thomas: Yeah and it also made clear that the bank didn’t know about any of this. Was that important?
Thomas: Yeah, okay.
Andrew: The bank had no reason; they were not aware of the potential opportunity and they could not have reasonably foreseen that that’s what they were gonna do with the money. The bank’s not responsible for what you do with the money you borrow from it unless you’ve said. Let me add an additional principle on top of it. I sort of failed to appreciate this while I was in law school. Almost all of these contract principles are default principles. They’re what happens when you fail to specify something, but in virtually every case if you are negotiating a deal with someone directly you can specify in the contract what you want.
Andrew: You can say in the contract time is of the essence in closing this contract. You can specify the exact amount of damages; it’s called liquidated damages. You have to do it in a particular way, but you can say yeah, even though you’re loaning me $25,000 dollars, if you fail to do so by X point in time the parties agree I will suffer a loss of opportunity of $100,000 dollars and the parties therefore agree that in the event buyer fails to tender the $25,000 by X date that seller will be entitled to a judgment of $100,000 in liquidated damages against you. You can specify that by contract, and by and large that’s valid in just about every jurisdiction. That’s a little bit of-
Thomas: What you’re saying is I nailed it!
Andrew: Primer on contract law, but you absolutely 100% nailed it! Yeah! Great work!
Thomas: I should’ve been able to definitively say that B was the better nothing answer than A. This is the second time I’ve made that mistake, you know, I’m not a lawyer, sometimes I get overwhelmed and my brain doesn’t pick up the fine differences there, but yeah. B was definitely better than A.
Thomas: I should’ve known. You know, I’m still trying to improve, but got the right answer. Do we have my official 200 score?
Andrew: I have your official 200 score.
Thomas: [Gasps] I can’t wait for you to be wrong and then we can have a whole T3BE-gate again-
Thomas: -and I’m gonna sue you.
Andrew: I well may be wrong on this, which would be great.
Thomas: [Laughs] 200 out of 200! Yup, there we go!
Andrew: But I think I’ve got this right. Here’s what it is.
Thomas: Teresa, I hope you’re listening.
Andrew: [Laughs] Please. In the second set of questions, you are 29 for 47, which is 62%.
Andrew: In the first run of questions you were 82 for 153. What that means is if we round up to the nearest tenth, to the nearest decile, you are now officially at 60%
Thomas: No way, really?
Andrew: Yes. But it has to be nearest decile.
Andrew: What I mean by that is one significant figure. You are 111 for 200.
Andrew: Which is 55.5%
Thomas: Jeez, you really – come on! You pranked me!
Thomas: I’m not even close!
Thomas: I didn’t understand what you were saying, I thought that meant I was at like 59.1% or something.
Andrew: No, that extra question is the difference between you rounding up to 60 if you go to the nearest 10th.
Andrew: It’s not quite what we would hope for.
Thomas: I do not understand [Laughing] what you just said!
Thomas: Okay, I got 50-what percent?
Thomas: Okay, well, I have to answer a lot of questions right to get to 60 in the longer term.
Andrew: 111 for 200, okay.
Thomas: Maybe that first 200 was just my practice set, we’ll see how I do on the next 200.
Andrew: There you go, the next 200 are the easiest.
Thomas: [Laughs] Yeah. Oh, what a – well, I gotta play that victory music. What a 200!
Thomas: Ah! I’m on such a high, Andrew. I know it means nothing, but the timing of this entire show, basically, you know, not counting a few of the months of bliss we had before Trump, this entire show has been all about these past four years, this election, I think it’s fitting that the T3BE 200 was during that time. It fits neatly. So, here’s to a better next four years and a better next 200 questions, how about that?
Andrew: Hear, hear! Well, Thomas, with you basking in the glory of having gotten question number 200 right, I’m going to throw it to my own future self. So future Andrew, let us know who got this one right!
Past Andrew, I’m actually not going to listen to you since you’re me. I’m gonna go with an incorrect answer. Thomas, a lot of people got this one wrong. A handful of folks did pick C but I really didn’t find somebody who reasoned through as well as you did online. I thought the most interesting incorrect answer was Night Scoops, @flagrantlynerdy on Twitter, who writes “I’m going with D. The bank failed to disburse funds per the agreement, the merchant took timely, reasonable steps to make alternative plans to accommodate the breach, but lost out on a specific business opportunity nevertheless.”
That’s wrong, but I think it illustrates that this is maybe a tougher question, Thomas, than you were giving yourself credit for getting it right. That is certainly a plausible readthrough. I think that’s balanced out against the harms that we talked about in breaking down this segment, but I thought it was good reasoning if incorrect result. So, congratulations Night Scoops, thanks for followin’ us, thanks for playin’ along and everybody give them a follow, that is @flagrantlynerdy, on Twitter, and congratulations on being this week’s winner.
Thomas: Alright, that’s our show. Come watch the live stream tonight, 5 pm Pacific, 8 pm Eastern. Come join us, it’ll be a great time and oh my god, please vote. Please vote, everybody, please vote.
Andrew: Please vote.