Topics of Discussion:
- Election Update
- Breaking Down the Law – Trump Lawsuits to Stop the Count and Keep Counting Why not Both?
- T3BE Question
Thomas: Hello hello hello hellooooooo! And welcome to Opening Arguments, episode 436!
Andrew: [Laughs] Well you sounded happy there.
Thomas: Well I went really big because we have nothing to talk about, so it’s all downhill from there.
Andrew: Yeah. [Laughs]
Thomas: How’re you doing, Andrew Torrez?
Andrew: I am doing fantastic, Thomas, [Laughing] how are you?
Thomas: Well, funny story, that. Here’s what I will say: I had a rough election night, as anyone who follows me on social media and watched our livestream would see. Not very happy. I wasn’t all doom and gloom like we were gonna lose but, you know, as I just put it on social media, yes, we can maybe barely defeat a Nazi death cult. Barely. Like eke out a slight victory. That’s my mood currently. I’m glad things are going well currently but there was a grief period for me and, don’t worry, I’m getting to a point that I’m sure for many of our listeners who are not Mr. Fantastic himself, Andrew Torrez, always positive.
There was a grief period for me of “this isn’t a landslide, this isn’t a repudiation of this horrible, horrible person and this isn’t a decisive Senate victory.” Those were things I was foolish enough to hope for based on this thing called all available polling that told us that was a very decently likely thing to happen. So, I had a grief period, and I just wanna say this because if you because if you are somebody who, as much as you’re getting happier optimistic Thomas on today’s show, don’t worry, I’m in a better mood. If you are somebody who’s still a little frustrated that we might just barely eke out a victory over a Nazi death cult and no more? Listen to my latest Serious Inquiries Only, hop on over to that podcast if you maybe are a little more frustrated like I was and you want an outlet for that? Check it out. But don’t worry, today on Opening Arguments there are two Mr. Fantastic’s, because I am feeling positive!
Andrew: You’re now – look, A, I definitely want to endorse, we’ll have a link in the show notes to that SIO. It’s a really, really good episode and you and I process stress and grief and planning things a little differently perhaps? But yeah, I endorse that. I just shared out, I don’t know if you’ve seen it, there’s a similar – you put it better, but this is an article in The Atlantic and it says “A Large Portion of the Electorate Chose the Sociopath.”
Thomas: Yeah. Record numbers.
Andrew: Yeah, I mean I don’t-
Thomas: Increased his votes.
Andrew: I don’t want to lose sight of it.
Thomas: More people voted for Donald Trump in 2020 than 2016. More people. After he killed 230,000 of us!
Andrew: Yeah! 48% of the country looked at the last four years and, when asked “do you want more of that?” went “yeah, maybe.”
Thomas: Not only yes, but hell yes is what they went.
Thomas: It’s amazing.
Thomas: You’re gonna make me go back on my word! I’m getting mad again. No, it’s okay. I’m happy. [Laughs]
Andrew: We’ll do one more mad and then it’s all positive from here on out. Let’s add to that, you and I have been sort of fending off [Laughing] I’ve retweeted some good humorous takes like, I think it was our buddy Liz Weeks who said “whatever the results of the election they confirm that the Democrats definitely should be abiding by whatever strategy I believed before the election on Tuesday.”
Andrew: You know, already you see Joe Manchin claiming that this is a victory for centrism. On the flip side you see people saying well if only we’d elected Elizabeth Warren then – nominated Elizabeth Warren then progressives would have stormed through this?
Andrew: Those are bad takes. [Laughs]
Andrew: Everybody knows this show leans way to the left of Joe Biden, we were huge Elizabeth Warren boosters-
Thomas: We are massive Elizabeth Warren fans; I do not think for a second Warren would have won this election.
Andrew: I think it is clear and the best – so, you know, we’re gonna get more because I’ve been fending this off on Twitter, again good naturedly and on Facebook. If you have a theory about how Liz Warren or Bernie Sanders would have made this a not close election your theory must explain these two interrelated facts: Number one, our progressive Senate statewide candidates got crushed across the country. Jamie Harrison, good, progressive candidate.
Andrew: Funded with $100 million dollars.
Thomas: Can I pause you on Jamie Harrison? I don’t wanna stop your point, you absolutely continue on, this is fact one you’re explaining, I just wanna pause on fact one because somebody specifically – and I’m not trying to call anyone out but I did have an interaction that I think represents, there is, again, a certain left view about Amy McGrath that is the DNC – it goes like this, I’ve heard it 30 times, it’s all the same. I dunno where they all get these same little tidbits, but their theory is: the DNC and establishment Democrats purposefully chose Amy McGrath over the more progressive Charlie Booker. You know why, Andrew? You know why?
Thomas: Because they knew she would lose to McConnell! I’m not even joking, this is word for word, I hear this theory all the time. Somehow the puppet masters of the DNC, I dunno if it’s still Hillary or what, they choose a worse candidate because they want it! They want to be in the minority. It’s absolutely stupid and I suggested, I offered, hey, if that were true, as you just pointed out, Harrison was an amazing candidate in a much tighter race, in a state, in South Carolina, that was much closer than Kentucky.
Thomas: And he lost. Nobody would have beaten McConnell. I don’t care if you put Bernie Sanders, I don’t care if you put AOC herself, against Mitch McConnell, you wouldn’t have beaten him. It’s just not how it works. The split was like 65/35 for Trump in that State, you just don’t, people don’t vote against their party line in those numbers, it just doesn’t happen. Sorry. Okay, continue your point.
Andrew: Let’s bracket what you just said with this will now be back to back presidential elections, unless something weird happens in Alaska maybe, in which there are no ticket splitter states. There are no states where the electorate-
Thomas: Hold on, Maine?
Andrew: Yeah, you’re right. Well bracket all of that with the exception of Maine, that divvies up its electoral votes, of all 50 states in 2016 and all 50 states in 2020 there was exactly one ticket splitter and that was, again, inexplicably Susan Collins.
Thomas: So weird, it’s just – you know what it is? The sheer dynamism of Susan Collins.
Thomas: She’s just such a … political … [Laughs] hit!
Andrew: We’ll talk about Susan Collins. But look, there are not ticket splitters.
Andrew: That is-
Thomas: Almost none.
Andrew: 99 to 1 on the data points say there are not ticket splitters. Add to that Jamie Harrison lost by 13 points in South Carolina.
Andrew: This is the second data point. So, data point number one, our progressive Senate candidates got crushed. The victories that we have are coming from our more centrist Senate candidates, and again, I say this as a proud progressive! I say this as somebody who donated money to Jamie Harrison, who has had email conversations with Jamie Harrison. Jamie Harrison is listening to this show right now, he is a show listener.
Thomas: Hold on, what?!
Andrew: Oh yeah.
Thomas: I didn’t know that! That’s awesome!
Thomas: I wish he would’ve won! I love him! [Laughs]
Andrew: I love that guy! He got … destroyed, and got destroyed in a way that grossly underperformed the polls.
Andrew: This gets into the second data point: the more liberal you were, the more progressive you were in this cycle, the more likely you were to run behind the top of the ticket, the Biden vote at the top of the ticket.
Andrew: I get it, people wanted this race to go very differently, I wanted this race to go very differently. I certainly get it that we would like the Democratic party to be more progressive! I’m out there tryin’ to make that happen, folks!
Thomas: Yeah. I wanna bolster your point that you just – I agree with you. One thing that I think is a contradiction maybe some people are not realizing is, for one, we’ve been through 2016 and now 2020 where we’re not gonna know this for a while. We won’t know until all the dust is settled, but the polls were off by a lot. Maybe not everywhere, we’ll see, there’s certain states that were fine. I imagine we’ll get plenty of 538 breakdowns of what exactly happened, but as of right now it looks like they were off by even more than 2016 and somehow all in one direction.
Thomas: Go ahead.
Andrew: That’s something, I wanna put a pin in that because we’re at a point – I began our discussion on our livestream, which, by the way, you can hear our livestream if you’re a patron, I’ve got the audio for that. 2,000 people showed up, almost 2,000 people showed up to watch us have a good time-
Thomas: Yeah, despite me forgetting to post the link in Patreon, I’m so sorry for that everybody!
Thomas: I hope you still found us.
Andrew: Thomas hates you.
Thomas: [Laughing] There was so much going on!
Andrew: We had a little bit on our minds and you were doing like 50 technical wizardry things at once. It was great.
Thomas: I was really the Wizard of Oz guy just doing all the bells and whistles over there.
Andrew: So, I began that by telling you, look, what happened to us in 2016 was math and math has neither a partisan political lean nor a memory. When it happens twice in a row to a greater degree in a second election and it’s all in the same direction?
Thomas: Yeah, something’s happening.
Andrew: You have to start exploring alternatives. We will, we will be doing that. Put a pin in it.
Thomas: So, I was amidst – let me finish the point I was making though about that. For example, Wisconsin. The polling average was Biden in double digits in Wisconsin before this.
Thomas: There is no getting around – we’ll see, there may be some explanation and maybe it could involve the post office screwing us over. I mean, it could be.
Andrew: We’re gonna talk about that!
Thomas: When I say the post office, I mean specifically the people who are trying to ruin it, not the fine, amazing workers, postal workers. I know we have many who listen, it’s not your fault, it’s Louis DeJoy and Trump, just for the record. But whatever the case, here’s what I was going to say. Your theory about how X candidate would have won and specifically Bernie is always based on – the only thing it is based on, oh, the head to head polls of Bernie versus Trump were maybe a little better or the same as Biden. My memory is Biden was better, but they were, you know, similar, in terms of head to head. Are you going to tell me after how massively off the polling in the actual race in 2020, the actual race days before we actually cast the vote, with how big those polls were off you’re going to tell me I should listen for a second to a hypothetical head to head poll between Bernie and Donald Trump from 2018 or some crap?
Thomas: Sorry, you don’t-
Thomas: I’m not saying you’re definitely wrong, we can’t prove it either way. There is no evidence, there is no evidence that can point to that at all definitively. It’s at best a guess and I would argue that Biden generating record turnout, record turnout. This’ll be – this is an interesting stat I’m sure you saw, Andrew. This may be the biggest share of the population voting for a candidate since, what, FDR or something? Because-
Andrew: Yeah, in the past 100 years, that’s right.
Thomas: There’s a lot that goes into that because there was no meaningful third-party voters really, statistically, and because of record turnout. Those two things combined mean this hasn’t happened forever. This has not happened for a very long time, that this big a percentage of the population voted for a candidate. Okay, I’ll stop, go ahead. [Laughs]
Andrew: Pick up on two of those little threads: number one there is absolutely no evidence that there was a lack of enthusiasm among Democratic voters. Look, I want to commend each and every one of you as show listeners for that.
Andrew: I’d like to think maybe we played some small part in that, because-
Thomas: Who knows in Georgia! It’s gonna be like 143 votes for this runoff! That could’ve been one of you!
Thomas: It could’ve been us donating, who knows!
Andrew: Yeah. You know, we told you, yeah! Go through the Kubler-Ross stages, right? None of us, neither Thomas nor I wanted Joe Biden as the candidate but, you know, go through it, get over it and get excited to vote out Trump. While 55% of the country didn’t do that, which I thought was possible, the point is you did do that.
Andrew: So, thank you for that, and a special thank you – I’m not gonna single out anybody by name. We have both successful and unsuccessful candidates for public office who listen to the show, who wrote in, who have come on the show. We also have, and some people who fought the good fight in very, very tough races and came up a little bit short. We also have people who worked as legitimate poll watchers, as precinct workers, worked for campaigns to get out the vote. Story after story, really a dear friend of mine, single mom, who wrote a check to the Biden campaign. Everybody really, really did their part and pulled their weight and I know there’s a disproportionate number of show listeners who did that. From the bottom of my heart, Thomas I’m sure from the bottom of your heart as well, thank you.
Andrew: To everybody who made this possible. This is – we got on the air; we did a postmortem in 2016 with Eli where we-
Andrew: -yelled at a lot of our liberals.
Thomas: You know, we were off about a few things, but I went back and listened to that, actually.
Thomas: Because I was curious, I wanted to see for the episode that I did the day before the election. It was interesting where we were back then. We were not as mad – this is funny. We weren’t as mad at the electoral college as we are now? [Laughs] Part of that was like the same attitude of this year, which is we shouldn’t need to be blaming that. If there were any justice this should be a, you know, 99-1% vote, but we don’t live in that world, and it’s hard! You know, I still get hoping, and it’s probably because every single poll, pretty much, backed me up, that we would have a decisive election and we didn’t.
Isn’t it a shock, Andrew? Every single time this happens, isn’t it a shock that more people turn out for the Republican? We get – the same thing that happened in 2018 – this election reminds me of Texas in 2018. Don’t you think? Where Beto O’Rourke had so much energy and generated record turnout in Texas, and the wisdom was record turnout always means better for Democrats and what happened was Republicans generated record turnout, too for Ted Effing Zodiac Killer Cruz.
Andrew: [Laughing] Yeah.
Thomas: So that’s what this election reminds me of.
Andrew: Fair, fair.
Thomas: Okay. Hey, should we start the show? [Laughs]
Andrew: Start the show, but yes, sincere thank you to everybody who helped make this possible.
Thomas: Okay Andrew, why don’t you – [Laughs] We jumped right in, but why don’t we backtrack just a smidge and you tell us, where do we stand? Is this yet called for Joe Biden or not?
Andrew: As we record this at just about 2 pm on Thursday afternoon, 2 pm Eastern time on Thursday afternoon, November the 5th. The election has not been called for Joe Biden. I predict by the time you’re listening to this show – I’ll do an Andrew Was Wrong – I’m gonna make two predictions. Number one, I’m gonna predict that the election will be called. Number two I’m gonna predict that the first major place to call the election-
Andrew: -will be Fox News.
Andrew: So, if you’re waiting for that joyfully, that could be a good-
Thomas: And just to explain to anyone who, I can’t believe if you haven’t been following this! [Laughs] But Fox News has already called Arizona when other networks haven’t, right?
Thomas: So that’s the reason. If they call Nevada, they have to say that Biden won.
Andrew: They will say – it will go up in 900-point font “Biden Wins.” They will be left with Sean Hannity scrambling and talking about – and we’re gonna talk about all of Trump’s efforts to undo the election.
Thomas: Didn’t I add that last week? I said you know what, actually Fox when it comes to the news desk and calling the election, they do a fine job. They’re not trying to cheat for the fuehrer. Didn’t I say that?
Thomas: Okay, I feel vindicated.
Andrew: You did.
Thomas: Also, Andrew, I wanted to mention that your explanation of Trump’s inability, or potential ability to steal the election in a Bush v. Gore scenario seems very spot on in retrospect. I just wanted to give you an Andrew Was Right shoutout. Could’ve happened but requires very specific scenarios-
Andrew: Yeah. And we’re gonna talk about those.
Thomas: Okay, sorry.
Andrew: And I cannot believe that I am saying this. What we’re looking at from the perspective of the Senate, as of right now, is a 48-48 split with the remaining four seats being two seats in Georgia, the Tom Tillis versus Cal Cunningham race in North Carolina which we’re gonna discuss, and the Al Gross versus Dan Sullivan race in Alaska.
Andrew: Here’s what that means. Alaska is a Republican state, all of the in-person voting is in, it’s about half the votes and it is 2-1 Republican, which is less than you would expect.
Andrew: I gotta tell you I’m starting with this one because I don’t think Al Gross is gonna win a Senate seat in Alaska. Alaskans are – they gave us Lisa Merkowski. The reason that Lisa Merkowski won, first as a write-in candidate, defeating a more conservative Republican-
Andrew: -who had primaried her and gotten the nomination and then the Democrats basically fusion-ticketed and decided that was their best chance to win and they did. Alaska has occasionally sent us Democratic Senators and in fairly recent memory. Alaska’s a weird state. Half the vote is in, that’s all same day, it is 2-1 Republican which is an underperformance. The remaining 50% that’s out are all Democrat – are all mail-in ballots which have been leaning Democratic, sometimes heavily Democratic, across the country. It is not impossible. Not likely, but not impossible, Al Gross will win a Senate seat in Alaska. Okay, let’s leave aside Alaska because let’s be honest, it’s probably not gonna happen.
Thomas: Yeah, I’m not betting on that.
Andrew: Don’t. Cal Cunningham is 97,000 votes behind Tom Tillis in North Carolina and there are 150,000 votes left to count in North Carolina, plus what we are going to discuss on next Tuesday’s show. We will not have an answer in North Carolina until November the 12th.
Andrew: I would still say, again, if you are wagering, probably you know you’d rather be in Tillis’s place than in Cunningham’s place, but that still, that’s a question mark of a seat at this point. It is not a solid Republican seat. What we do know – that leaves two more, right? What we do know as of right now the best evidence is that both Georgia Senate seats are going to a runoff.
Thomas: Here we go! [Laughs]
Andrew: [Laughs] You wanna tell ‘em the number?
Thomas: Uh, oh, yeah! I posted about this in group. We’ve been following Georgia because obviously one was a runoff pretty early, that was obvious, the Loeffler and Warnock and all that. The other one, as the vote came in late, we saw David Purdue just inching just ever closer to below 50%, because if you’re below 50% it’s a runoff. As David Purdue inched ever so slowly-
Thomas: -there was an update that said “David Purdue 49.997”
Thomas: And I messaged Andrew, and I said Andrew please! Is there rounding? Is there rounding?! What’s the law say on rounding?! Because I was panicking. I was cheering and then panicking, and Andrew you said?
Andrew: I looked up the law on rounding which says, this is Georgia Code 21-2-501(a)(1) which says “Except as otherwise provided in this Code section, no candidate shall be nominated for public office” (in a primary) “or elected to public office in any election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office.” What that means is you do not get to round up to 50.0 from 49.997, you have to have – because 50.0 isn’t a majority either.
Andrew: You have to have a majority. You have to have more votes than the field, and right now it is looking as though we do not have more votes than the field for David Purdue.
Andrew: That’s all we need.
Thomas: Look, my rational brain knew that would probably be how it’s written, but my panic brain said-
Thomas: Are they going to somehow?
Andrew: Right, because yeah, you’re thinking is there a number or whatever?
Thomas: Yeah. Rounding law, folks! Saved by rounding law!
Thomas: Next election we’ll be saved by PEMDAS law.
Thomas: Order of operations.
Andrew: Please Excuse My Dear Aunt Sally. You knew you could come to Opening Arguments for all your rounding law needs!
Andrew: I also wanna add this, because this question – literally this is coming up as we are recording and I wanna tell you, I read you subsection (a)(1), I also wanna read you subsection (a)(10), because people have already asked can you register new voters for the runoff?
Andrew: In order to vote in a runoff election, you have to have been eligible to have voted in the election that it’s running off from. It is a continuation. Now, I did research on this before the show. This is still valid law. I looked for case law on Lexis and West Law. What I did not uncover until just now is a preliminary injunction entered in May of 2017 called Georgia State Conference of the NAACP, et al. v. State of Georgia and Brian Kemp. It relates to the 2017 special election in Georgia’s 6th Congressional District between, amusingly enough, Jon Ossoff and Karen Handle.
The important thing is this: that court decided, and it only covers that particular election, but I’m gonna explain in a second, that the Help America Vote Act, a federal law, preempted Georgia State law, and in particular what that injunction did was prohibited the Georgia Secretary of State from enforcing that (a)(10) provision. In other words, allowing Georgia to register voters up until 30 days before the runoff election. Now, since this decision it has been the practice of Georgia to continue to follow this decision and what that means is you can register new voters in Georgia for what is very, very likely to be two runoff elections that could decide the fate of the U.S. Senate. Let’s get to work, people!
Thomas: When it comes to these runoff seats, Andrew, I feel a little bit optimistic? About winning two runoffs? Okay. Imagine Republicans have lost, they don’t have Trump moving them to the ballot box, and we need these two seats for a Senate majority. We’re gonna have so much energy, there’s gonna be so much energy and money pouring into Georgia. Do you like our chances in the two-runoff scenario?
Andrew: I like our chances, and I would add to that that we have the recipe for how Democrats win even in red states.
Andrew: Obviously we have some evidence that Georgia is a purple, trending blue, state. But Purdue and Loeffler are both criminals!
Andrew: They are both the kind of people that it is very, very very difficult to imagine Republicans being fired up about going to the polls to help Mitch McConnell force more conservative cabinet appointments on Joe Biden. That’s the motivation plea.
Andrew: The motivation plea to Democrats is “we would like to govern.”
Thomas: Yeah, do you want another stimulus? Do you want a COVID relief? Do you want any sort of legislative action? Do you want any ability to nominate judges? If you wanna hear all the things that we need the Senate for that I yell about [Laughing] go to Serious Inquiries Only!
Andrew: [Laughs] Nice plug!
Thomas: We need the Senate, folks! We need the Senate so badly. These two races are gonna be key. Game on, Andrew. Game on with these runoffs.
Andrew: Game on!
Thomas: I am not joking, I might just phone bank all day every day from now until then.
Andrew: I love it.
Thomas: Georgians are going to be so sick of me! [Laughs]
Thomas: And all us listeners, please. Whatever – I know we’ve still gotta wait for the dust to settle, we’ll see what the best ways – I know, I’m sure Stacey Abrams will have something to say about maybe the best way to-
Andrew: She is so smart, and she’s so good.
Thomas: Made a huge difference here.
Andrew: Yeah. That’s – if you want one more last piece of optimism on retaking the Senate through runoffs in Georgia just think, their side is gonna have two criminals including the guy who cancelled the debate because he got so crushed in the first one. Our side is gonna be spearheaded by Stacey Abrams. If skill counts, I like our chances.
Thomas: So, this means that the worst-case scenario when we’re talking about the Senate – did we go through all the races? The worst case seems to be 48-50 if all the races go wrong, but with the two runoffs to get us to 50-50.
Thomas: Now in a 50/50 since the Vice President breaks the tie does that mean McConnell is no longer Senate Majority Leader?
Thomas: Okay, I just wanted to make sure there wasn’t any-
Andrew: No no! I’ve seen the question a lot, I’m glad you asked.
Thomas: I’m just scared of all these weird rules. Oh, tie goes to whoever’s currently there or something, you know?
Andrew: [Laughing] Yeah, tie goes to the person whose hands are the most necrotic.
Andrew: Who the hell knows? No, in a 50/50 scenario the Vice President, Kamala Harris, gets to come on in and break the tie that sends Mitch McConnell packing, which is just delightful.
Thomas: I think what happens is she cracks the gavel in half and then Mitch McConnell goes “augh!” and then just turns to a pile of ash and is just gone. Disintegrates.
Andrew: I was expecting-
Thomas: It’s his horcrux.
Andrew: -more like early 1985 Ghostbusters-style special effects.
Thomas: Yeah, you know I was too. Glad we’re on the same page.
Andrew: Good, good good.
Thomas: That’s worst case is that we have to win two runoffs in a pretty purple state.
Thomas: You know, it’ll be a nail biter, I’ll be stressed beyond belief.
Andrew: You are right, you are right right now to be stressed and for it to be a nail biter and particularly given how bad the polling was, performed this cycle, there’s no amount – a poll could come out tomorrow that shows Ossoff and Warnock up by 10 points each-
Thomas: Yeah, don’t care.
Andrew: And I don’t believe that.
Thomas: I do not care.
Thomas: I think a lot of us were saying “don’t look at the polls, we don’t care this election,” but secretly we’re like “okay, the polls look pretty good.” Now, for real. Do not care what the polls say.
Thomas: What’s our best case – or what’s our best opportunity for this not to be 48-50? What’s the closest one that you think maybe we might be able to grab still?
Andrew: Cal Cunningham in North Carolina.
Thomas: Oh, that was? Okay, I was hoping there was one we didn’t get to.
Andrew: And we’ll talk about that more next week.
Andrew: Again, I would say I take the less than 50/50 on Cunningham and well south of that on Gross in Alaska. Expect it to be a 48/50, but look-
Andrew: The math around blue shift is incredibly counterintuitive. If you want proof of that just look at what we told you was going to happen in Pennsylvania-
Andrew: And then what did happen and how you felt. We put up the mathematical article that said Biden could win Pennsylvania by 5 points but be down by 16 points election night and sure enough Biden was down by 13 points election night and the Biden campaign was saying “we’re gonna be fine,” and everybody was sort of feeling-
Thomas: Still down, but-
Andrew: -maybe not fine.
Andrew: It’s hard to deal with counterintuitive math.
Thomas: Yeah, even in the language you just used there, yes, the article said he could be down and he could come – it’s not as though, again, Florida should have been great but one county was way worse than we expected and that threw all the numbers off. All it would have taken is for, you know, those Pennsylvania numbers to come in a little worse than we were thinking in that blue shift. It’s not unreasonable to be very, very nervous when your guy is down by 13 points in a critical state.
Andrew: Yup, yup! Absolutely, absolutely. 100%.
Thomas: Maybe he comes back 12.8 points and loses.
Thomas: There’s no guarantee.
Andrew: No no no!
Thomas: I’m still worried! [Laughs]
Thomas: I am not unworried until January when he is inaugurated.
Andrew: Yeah, I agree with that, but, you know, Optimist Prime. I shared out and I will share this out on the air. You can only do it in five-minute chunks because you get inundated with cash for your bones and My Pillow ads and whatever-
Thomas: [Laughs] Cash for your bones.
Andrew: It’s a great Futurama-
Thomas: I have so many extra bones, too! Hold on!
Andrew: [Laughs] That’s what the ads are like!
Thomas: New employment opportunity! [Laughs]
Andrew: But yeah, reverse mortgages, but put on five minutes of Fox News and what you will see is-
Andrew: Because look, everybody on the left is like super anxious and yeah, right, some of us saw Bush v. Gore and all of us saw 2016.
Andrew: Until Joe Biden is in the Oval Office and maybe not for like 12 hours after that, I’m not gonna breathe easy.
Andrew: Watch five minutes of Fox News and what you will see is a funerial death march. Trey Gowdy was on and I swear he had a stepladder and a rope over his shoulder. They are talking about their strategy for how this election means that Americans want divided government and they’re gonna hold onto the senate and blah blah blah. It is, if you were at all concerned about how this is gonna go down watch the pro-Trump side on Fox News because that will, it will put a little spring in your step, you’ll order a couple of My Pillows, you’ll take out a reverse mortgage, and then switch back over to responsible news coverage.
Thomas: [Laughing] Buy gold!
Breaking Down the Law – Trump Lawsuits to Stop the Count and Keep Counting Why not Both?
Thomas: I stand by my idea that I will be stressed until inauguration, and one thought I had was remember back in 2016 when the – basically the beginning of our show, Andrew. We were in month, I dunno, six or something, but the first three months, November 2016 to January 2017 it was wall to wall theorizing by people on the left “how can we get this election to not count? What’s this one weird trick? Jill Stein’s gonna do a recount? How can we get this to not happen?” Admittedly, your job, our job on the show, was to say this is pretty much BS, the election is the election, it stands. Donald Trump is President. That’s what we said in 2016. But picture that, but the other way with a 6-3 majority in the Supreme Court, absolute fundamentalist Christian nationalist Supreme Court. I’m a little scared! That’s a transition, what are the ways that Trump might still be trying to steal this back?
Andrew: Again, you are right to be scared, but again I wanna emphasize that we managed. Again, not by enough and not enough in my view to send a clear repudiation of Trump and Trumpism, but the message we shamelessly stole from A.G. was vote in numbers too big for them to manipulate and that’s where we are. We are in a place where it looks like all of the contingency plans are just, they’re not going to be enough. You’re right to be nervous, let me refer everyone – I doubt we’re getting too many people listening to the show for the first time today.
Thomas: Hey, maybe!
Andrew: But if this is your first time here, welcome! Join the party. Go back and listen to the show from a week ago, episode 434, in which we break down Brett Kavanaugh’s concurrence in the Wisconsin vote case and he explicitly, eight and a half pages, writes about this newly created, minted out of thin air, duty for the U.S. Supreme Court, the conservative activist U.S. Supreme Court to overturn state Supreme Court interpretations of state election laws to (quote) “preserve the integrity of state legislatures.” That is as activist and bonkers – I shouldn’t even, because bonkers has a delightful kind of connotation to it because of the onomatopoeia aspect.
Thomas: Yeah, they are not delightful enough to be bonkers.
Andrew: Yeah, it’s corrupt.
Andrew: It is corrupt and designed to give the Supreme Court the ability to move in in an activist way in the following scenario. I’m gonna cut to this and we’re gonna talk about the various states that are out there. It is designed to work in conjunction with a case called Boockvar. That is the Pennsylvania Secretary of State, and you might recall that 4-4 the Supreme Court deadlocked and let stand the Pennsylvania decision to accept ballots that were received in the mail up to three days after election day, that is up until tomorrow, up until Friday, and have them count as valid ballots, provided they were postmarked by election day.
The Supreme Court allowed – [Chuckles] graciously allowed that to stand after the Pennsylvania Supreme Court said of course this is a permissible interpretation of our election law. But they did so subject to a segregation order. Those ballots are being kept segregated, they’re kept in a separate special part and have not been counted yet, anything that has arrived late. So the following scenario, which I call the “rat clownhorning” [Laughing] when I went on Mueller She Wrote on The Daily Beans yesterday, would be a scenario in which the election comes down to the electoral votes in Pennsylvania – that is no candidate has 270 without Pennsylvania’s 20 electoral vote and the margin of victory to Joe Biden to overcome the in day voting advantage to Republicans would hinge on those mail in votes. Narrow (quote) “Trump lead,” not counting those ballots would clearly be a Biden lead if you count those ballots, they’re valid. Those two things together were the scenario in which this Supreme Court could Bush v. Gore, could steal this election.
Thomas: Hmm, yeah.
Andrew: I wanna tell you, again, as of today, looks like neither of those conditions are gonna be true.
Andrew: Looks like Biden is gonna get to 270 without Pennsylvania and it looks like Biden is gonna get to 290 with Pennsylvania without having to count totally valid good faith mail in ballots that are overwhelmingly Democratic just based on ballots that were received by election day. Not that that makes any sense. [Laughs]
Andrew: But look, this is what the Republican party has tried to do to various degrees of success for the past 30 years. They have tried to make it harder for people to vote in every single way and they made it harder for Democrats to vote in Pennsylvania, they make it harder for those votes to count. Lots and lots of Pennsylvania votes that were submitted in good faith and held up by the post office by a thoroughly corrupt post office for which we have evidence that they are thoroughly corrupt, we’re gonna talk about that on Tuesday. Despite all that, it’s not gonna work.
This Supreme Court, as activist as they are, as terrible as they are, as now they have 12-year-old Amy Coney Barrett on it and they’re gonna be terrible for generations. They’re not gonna go out and create new law to try and diminish Donald Trump’s losing margins. It’s over. They’re not gonna be able to rescue him.
What we’re left with are, you know, a combination of truly desperate state law lawsuits to try and come up with a-
Thomas: I wonder if Jill Stein’ll try to double dip? What if this time around she’s like hey, Trump supporters, we can still win this! [Laughs] We need a recount in Wisconsin, why not? It made her money the first time.
Andrew: Remember the third-party candidate this time, in third place-
Thomas: Oh Jo Jorgensen.
Andrew: Libertarian Jo Jorgensen so let’s not give them any ideas, okay?
Thomas: Oh gosh. [Sighs] Don’t give them any money, anyone! It’s a fake thing, it was a fake thing when Jill Stein did it, it’ll be a fake thing this time – oh there’s nobody listening who would give them money.
Andrew: If you voted for Jo Jorgensen do us a favor, don’t listen to this podcast.
Thomas: I think we have like 5 Trump supporters who listen out of … tens of thousands.
Andrew: No, we do. We have some hate listeners and I love that.
Thomas: Interesting, yeah.
Andrew: It’s great. So, let’s talk briefly about the shape of these trump lawsuits and it has to be bracketed by the fact that you have to advance inconsistent and insane theories because under any view of the case Donald Trump loses the election. Trump says “it’s wrong to count votes after election day.” Okay. If you take only votes-
Andrew: -counted as of election day, that’s 270 for Joe Biden because that is Arizona and Nevada where Biden is ahead and Trump has to try and come from behind. If you take, if you then say-
Thomas: Well I feel like Wisconsin and Michigan weren’t blue until the morning after. Am I wrong on that?
Andrew: But those were all still same day results.
Thomas: Oh, I see what you’re saying. It’s not about stopping the counting that election day, gotcha.
Andrew: Yeah. There’s no “if only the votes in and counted as of election day” count, then Trump loses. If you count all the votes then we know that Trump’s gonna lose so you have to craft some kind of nonsense oddball theory where you’re yelling “count all the votes” in Arizona and Nevada, which they are, but-
Andrew: [Laughing] You’re literally yelling “stop the count” in Pennsylvania.
Thomas: People have already tweeted it, there’s video at the same time of, let’s call them what they are, Andrew. I mean what are the people who are rioting to try to stop democracy? What are names that might get used for these people if they were Black and trying to demonstrate for their rights? Or trying to demonstrate to not be shot by police? What would they be called? Rioters? Thugs? Looters?
Andrew: They would absolutely be called thugs.
Thomas: So anyway, some of these rioters, thugs, and looters who are out there trying to stop democracy, you can put the side by side comparison of one group of them shouting “stop the count,” and the other group of them shouting “count the votes” at the same time.
Andrew: [Laughs] Yeah. And I wanna talk briefly about sort of the last-ditch effort, which I call the Bush v. Gore takesies backsies.
Andrew: Which is sort of the ultimate coup that we’re gonna probably see by the time this show comes out. Mark Levin has already tweeted out the takesies backsies option and I’m gonna talk about that before the show ends.
No, [Laughing] so we were left with, you know, things like the Michigan lawsuit, for example, which literally got dismissed five minutes ago.
Andrew: I’m not surprised by that; I had some deep dive on their witness involved in that case [Laughs] because it was delightful. It was a person named Eric Ostergren who is like maybe not full on sovereign citizen but clearly nutjob. A serial harasser and litigator, he’s somebody who did not like the assessment for his second vacation home in Michigan and so [Laughing] he fought with the local assessors office and then when he said well look, it’s clearly, you’re assessing my home at too high a value, then Ostergren was like no, it should be X, Y, Z, and then they were like “dude, you’re not an assessor, knock it off.” [Laughing] So then he went out and took the training course!
Andrew: And became a Michigan certified assessing officer and then filed a lawsuit.
Thomas: The kid’s got grit!
Andrew: [Laughs] I will put it in the show notes! And put his brand-new assessment in and he was like “see? I am now” and the court was like come on, man!
Andrew: That is their key witness in Michigan and their key witness affirms as follows. Again, I want to read you – this is from their complaint! This is not “oh, Andrew, let’s have a laugh” and do what I just did with respect to Ostergren’s lawsuit, which is admittedly making fun of him a little bit. I wanna read you, this is what they say!
“Eric Ostergren is a registered voter of Roscommon County, Michigan and credentialed and trained as an election (quote) ‘challenger.’ (end quote).”
Thomas: [Laughs] Hey Andrew, is that a thing?
Andrew: That’s not a thing.
Andrew: “Eric Ostergren was excluded from the counting board during the absent voter ballot review process.” So, look. Here’s what happened. Ostergren, wearing his dumbass MAGA hat walked in to the ballot review process at his local polling station, was told “dude, get the hell out of here.” He was like “I have been trained as an election challenger. I’m also qualified to assess the value of this office if you need those services.”
Andrew: And they were like “No, we don’t need your services, dude. We already have trained poll watchers here, both Republican and Democrat, kindly, you know, go clownhorn yourself.” Then he left. [Laughs]
Andrew: So from that, the Trump campaign, Donald J. Trump For President, Inc., filed a Verified Complaint for Immediate Declaratory and Injunctive Relief, which I will link in the show notes. That, again, was denied today, that – well, let’s start off with the fact that it’s a request for a declaratory judgment but it never says what it wants the court to declare?
Andrew: But the injunctive relief it wants is “stop the count,” and this prompted some humor on MSNBC of “Uh… you want us to stop the count while you’re losing? Okay!”
Andrew: But also mandate that the Secretary order (quote) “the immediate segregation of all ballots that are not being inspected and monitored as aforesaid and as required under law.” That is, to take all of the mail in votes and segregate them like they have done in Pennsylvania. It was not – I heard, I think, Ari Melber described this as an “own goal” kind of lawsuit. That’s not – look, I’m all for making fun of these people, but that’s not a correct reading of this complaint. This complaint could have potentially led Donald Trump to overturn the results in Michigan, but it doesn’t matter because it’s based in nonsense and it was denied earlier today. They can appeal, but it’s a guy in a hat who thinks he’s a poll watcher but isn’t and the court was like “how ‘bout nope.”
That’s the pattern. That level of litigation is the pattern that Donald Trump is following across the nation. Also dismissed out today was lawsuit in Georgia. Same thing, Chatham County, trying to stop the count in Chatham County and it was supported by an affidavit by a guy named Sean Pumphrey who – I need to read you this affidavit because it is delightful.
Thomas: Please! I love it when you read me affidavits, Andrew!
Thomas: I’m like ooh.
Andrew: Thomas, alright!
Thomas: Perhaps I should edit this out, but it’s … exquisite.
Andrew: [Laughs] Put out a little Barry White. I’ll go back to reading you some affidavits here.
Andrew: He says – and again, this is your lawsuit! These are your witnesses, guys! This is not just me making fun of you. This person is actually an officially registered poll watcher, not just a DYI-er. He says “I was observing the decisions in Chatham County, Georgia. I observed four bins of ballots opened, signatures verified.” All that. “These ‘Identified Ballots’ were then placed in separate bins.”
Then this is paragraph 4: “I then observed a poll worker bring a stack of ballots from a back room and place them on a table near the bins.” Okay. Paragraph 5, “I then left the room and returned a short time later. When I returned to the room the stack of ballots were no longer on the table.”
Andrew: “I then asked” you know, “what happened?” And blah blah blah. Look! Again, I’m not tryin’ to offer too much free legal advice to Donald Trump, but when your best witness-
Andrew: The guy you get to sign the affidavit is like “well, I had to go take a smoke break so it’s not like I saw stuff.”
Andrew: That’s not a real good witness, people!
Andrew: “I wasn’t there but I’m pretty sure they did something illicit” is precisely the reason that the judge hearing this in the Superior Court of Chatham County, State of Georgia, this afternoon said “yeah, how ‘bout we’re not gonna do that?”
Thomas: You know, not to do some more Thomas & Andrew’s Right, but I did ask you, I think, I was like how would it even work? Because you’ve got people who’s job it is to count these and they’re state level employees and they’re people from Republican, Democrats together, their job is to count the ballots. As nervous as we all were, it does seem like that is how this went down. There are people who’s job it is to do this, and as much as there was the Brooks Brothers Riot in 2000-
Thomas: An attempt to do it again, they said, this time, they said “um, screw you Brooks Brothers, we’re gonna keep counting.”
Andrew: Exactly right. So, there are a bunch of these, there’s a similar one in Pennsylvania, I’m not gonna go through it. The other thing that is sort of making the rounds as we go to record on this is a victory of sort at the First Judicial District of Pennsylvania Court of Common Pleas that is already on appeal to the Pennsylvania Supreme Court that requires, was an order that allowed – basically what the Trump administration was seeking was to allow their poll watchers to stand closer to the election workers actually processing ballots.
We know what that means from Trump workers, right? So, A, the restriction, they were moved back ‘cuz nobody wants these maskless troglodytes spitting on you during COVID. Or at any time, really.
Andrew: But particularly during COVID where they might kill you. But no, they sued for an injunction to stop the count and then require the poll workers to stand within 6 feet, 6 feet back, to comply with social distancing but also be able to observe the ballots. Again, I don’t really – the only thing to care about with respect to that relief is the stopping the count portion, and the intermediate appellate court was like “well we’re not stopping the count for this.” We will promulgate the order, we will clarify that yes, they can stand within 6 feet, but keep counting ballots. That appears to be the status quo as of the time that we record this.
Again, we’re Democrats, we have nothing to fear from letting legitimate observers who are certified as such, even though they’re probably MAGA hat wearing Trump supporters. They’re legitimate observers, there are a limited number of them. Yeah, they’re gonna be in there without their mask, yeah, they’re gonna be screaming at you, yeah, it’s probably gonna have some heroes here catch COVID and that sucks.
Andrew: But it’s not gonna change the election. So those are our state court filings, we have been through the Supreme Court filings. We are gonna talk about Judge Sullivan’s case in D.C. next week because that is a counterweight to all of that.
The last two things – I guess I do wanna talk about the Supreme Court Bush v. Gore takesies backsies position and that is this: you will see more of this. Mark Levin already tweeted out “Republican legislatures, do your job and certify the election results as your conscience dictates” or some other kind of, you know, “wink wink, nod nod.”
Andrew: You know, give the electors over to Trump, you’re legally entitled to do that. They’re not legally entitled to do that. Now, again, it is crucial that you understand this, and we’ve talked about this on the show before, but I want to reiterate it. As a matter of historical principle, it is correct that you do not have an individual right to vote for electors for President.
Andrew: The state legislature could assign those however they see fit. That’s the original founding of this country. For 200 years [Laughs] those state legislatures have said “We states are gonna pick our electors by the results of the popular vote of our state.”
Andrew: We’ve seen two states come to prominence, Nebraska and Maine, to say “and it doesn’t have to be winner take all. We’re gonna allocate them by congressional district.” They can allocate those electoral votes however they want, including – if California wanted to abolish popular vote for presidency tomorrow and say in the 2024 presidential election that the California state legislature gets to pick its electors, its 55 electors for the presidency, it has the power to do that.
I wanna read the relevant provision from Bush v. Gore, but then I wanna put the big asterisk on it that you know is coming. But I want our listeners to be prepared for this argument, because the argument is “well, the legislature can still certify whoever they want.” Mind you, the moment somebody makes this argument what they’re saying is “I no longer believe in democracy.” Since that’s probably not sufficient to stop, you know, if they’re like “but it’s all about whether we have the power,” here’s what Bush v. Gore says:
(Quote) “The individual citizen has no federal constitutional right to vote for electors for President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” Slight parentheses here, when they say “the state legislature,” they don’t mean the legislature unilaterally doing so in cases where you have a Republican legislature but a Democratic governor. They mean by passing a law, and laws have to be passed with either the consent of the governor or over the governor’s veto. That’s why a lawyer will say “the state legislature chooses.” What they mean is, by “state legislature choosing,” they mean “by passing a law.”
Andrew: They don’t just mean by, like, choosing at the bar some night. Going on, “The state legislature’s power to select the manner for appointing electors is plenary” and that means unrestricted, “it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several states for many years after the framing of our constitution.
History has now favored the voter and in each of the several states the citizens themselves vote for presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental and one source of its fundamental nature lies in the equal weight according to each vote in the equal dignity owed to each voter. The state, of course, after granting the franchise in the special context of Article 2, can take back the power to appoint electors.”
So, let’s process all of that. The constitution permits state legislatures to, by law, allocate electors however they see fit, electors for the presidency however they see fit. In other words, I said you know, California could just say “the state legislature is gonna pick,” it could – under the Bush v. Gore rule there’s nothing to stop the State of California from passing a law-
Thomas: From letting a dog pick!
Andrew: That says, in perpetuity, the State of California shall award its electors to the Democratic President.
Andrew: To the Democratic candidate for President. The power is plenary. The idea behind plenary powers like that is if the Democrats passed that law they would immediately get destroyed in the next election and people would vote in somebody that would listen to actually the voters. But there is nothing to stop states from doing that, and I wouldn’t be surprised to see Alabama start to do that.
But notice the words I read very, very slowly. Once the legislature has decided to give the rights to the voters, and they’ve held an election, those rights are fundamental. They cannot be abridged; nobody can take them away. That’s what that means at this point in time.
Yeah, at any point before the election could Wisconsin have said “yeah, the state legislature gets to pick, presidential election doesn’t count.” They could have done that, but they didn’t, and they can’t do it now. There is no takesies backsies.
Thomas: So, uh… President Biden? [Laughs]
Andrew: [Laughs] So President Biden. A couple last things on recounts? We talked about recounts generally in, way back, OA 25.
Thomas: There may be a few recounts, like it might get to very, very close in Georgia. I think we’re already within recount, if it were to end now, I believe we’re within where we could ask for a recount, but our memory of our coverage of it is they don’t usually do anything?
Andrew: Recounts virtually never affect the election. Certainly not by the margins we see even when they are relatively small margins. You correctly seized on Georgia as being the state that I think is most likely to proceed. It has nothing to do with margin, wanna guess why I think it’s most likely to proceed in Georgia?
Thomas: Nothing to do with margin?
Thomas: Yeah, I guess I don’t know if it has nothing to do with margin. Why?
Andrew: Yeah, so in Georgia if the election is within half a percent, which it clearly will be, then either party can request a recount. The reason I think it’s likely to go forward in Georgia’s because, although the law is not clear and hasn’t been tested, looks like the state pays for the recount in Georgia.
Thomas: Oh. Yeah, yeah.
Andrew: That’s § 21-2-495–
Thomas: Whereas Trump has to pay for it in Wisconsin, right?
Andrew: In Wisconsin and Nevada Trump has to pay for it.
Andrew: So, in Wisconsin, “oh we’re definitely gonna recount the votes in Wisconsin,” I’m gonna fearlessly predict right now that they will not. They’ll file – they’ll either not file the petition for the recount or they will file it and withdraw it because under 1%, “as the candidate who is aggrieved by having lost by less than 1%, they will be entitled to seek a recount in Wisconsin”
Thomas: That’s very interesting.
Andrew: But the state will only pay for it if you’ve lost by under a quarter of a percent.
Andrew: And they’re not gonna get that close.
Thomas: That is very … ‘cuz at what point- I have two thoughts on this. On one hand, I know historically Donald Trump has had just untold bazillions of dollars in his war chest that he has systematically tried to enrich himself and his friends with, so hire, you know, contract with bogus contractors to allegedly do stuff for the campaign. On one hand I could see that being an argument for “oh yeah, we’re gonna do the recount and the Donald Trump For President 2020 will pay for it” because, you know, he gets to pay a bunch of lawyer’s way too much and kinda siphon money out that way. On the other hand, I feel like they’re pretty broke? It could go either way.
Andrew: Yeah. And in both of those states you have to put up the money in advance.
Andrew: It is millions of dollars, so yeah. There is not a chance in hell that they are gonna pay for a recount in Nevada. Also, I should add, by the same token, and you can throw this at Uncle Frank if and when I think Joe Biden will win Georgia.
Thomas: Wow! Okay.
Andrew: Georgia has a “contested elections” provision. If Uncle Frank is going on and on and on about, you know, antifa in coordination with George Soros and the reverse vampires came in and stole -be like look, why doesn’t Donald Trump file for a contested election in Georgia? You can do that. You can say – and that, by the way, you don’t have to have any particular margin, you can just say “we think this election was stolen, we think there’s credible allegations of fraud, so we’re filing a lawsuit to contest this election.”
I will tell you right now why Donald Trump will never file that lawsuit, because if you file a contested elections lawsuit it has a fee shifting provision. It is a “loser pays.” You file and say the election was stolen and you’ve got no evidence the election was stolen? Not only do you have to pay for your lawyers, you have to pay for the other side’s lawyers as well.
Andrew: Not a chance Donald Trump is gonna do that. That’s a good weapon for you to have against Uncle Frank who’s nattering on about antifa terrorists stealing the ballots in Fulton County.
Thomas: I wanna leave people with one more thing. I know we were more optimistic, there’s a lot to be pessimistic on. Again, I talked about it more on SIO, including ballot measure in California went horribly. State level races we, you know, we needed this for the census, for the redistricting. It’s not clear that those went very well, we’ll see, I guess. There’s a lot to take in.
Here’s one more thing, I just wanna say this. As excited as I am for the potential of these two Georgia runoffs, which, again, determine so much. The difference between 50/50 and 49/51 is astronomical. It is astronomical. I am sure we will talk about it more, I’m sure you already know, but remember this: In 2008 there was a really safe runoff seat when Ted Kennedy died and there was so much energy on the right. Now a lot of that might’ve been – probably was because of racism against Obama and a backlash to electing a Black man as President. I go either way; I could see the energy being on our side in a runoff scenario in Georgia or I could see it the other way.
We lost a critical seat in 2008, which was the reason we only had 60 seats for only a couple months, we didn’t actually have a supermajority for two years as much as you might have thought on paper we did, and that was a massive upset victory and it was after we won the presidency, it was after we had all this energy coming off of Bush with the lowest presidential approval rating in history, and we lost a critical runoff seat.
I’m not trying to scare you… maybe I am a little bit. [Laughs] I’m just trying to let you know that we will need to do everything in our power to win these two runoff seats. They are nowhere near a guarantee, do not even – as Andrew said, do not even consider taking solace in any polling that comes out of that state, we just don’t know.
Andrew: Couldn’t agree more with that.
[Patron Shout Outs]
Thomas: It’s a new set of 200 questions, it’s a new day, it’s a new dawn, here we go!
Andrew: [Laughs] Alright! Thomas, A rancher and his neighbor were involved in a boundary dispute. In order to resolve their differences, each drove his truck to an open pasture area on his land where the two properties were separated by a fence.
Thomas: [Laughs] Oh, I thought they were gonna duel! Are they dueling?
Andrew: I thought so too! The rancher was accompanied by four friends, and the neighbor was alone.
Thomas: Oh. Majority rule.
Andrew: The neighbor got out of his truck and walked toward the fence. The rancher got out but simply stood by his truck. When the neighbor came over the fence, the rancher shot him, inflicting serious injury.
Thomas: Oh, okay, it is a duel. Gotcha! [Laughs]
Andrew: Yeah. In a battery action brought by the neighbor against the rancher, the rancher testified that he actually thought his neighbor was armed-
Thomas: Oh god.
Andrew: -although he could point to nothing that would have reasonably justified this belief. Is the neighbor likely to prevail?
Thomas: I dunno how to answer this since it didn’t tell me the race of the people involved?
Thomas: And I know that the law is almost entirely determined based on that.
Andrew: A) No, because the rancher was standing on his own property and had no obligation to retreat. That’s the “stand your ground” doctrine, right?
Andrew: It’s actually the castle doctrine.
Thomas: I don’t need your help. [Laughs]
Andrew: [Laughs] B) No, because the rancher suspected that the neighbor was armed.
Andrew: C) Yes, because deadly force is never appropriate in a property dispute.
Andrew: Or D) Yes, because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense.
Thomas: Hmm. Alright, so we’ve got a duel scenario, we’ve got a Tombstone situation. I’m your Huckleberry, I assume they said that, there was a lot of that kind of thing. Umm. It seems as though – okay. The rancher was accompanied by four friends, and the neighbor was alone. The lone neighbor was the one who got out of his truck and walked toward the fence. The rancher, with the four friends, stood by his truck. When the neighbor came over the fence, the rancher shot him.
Okay, that makes me feel like this is incredibly unreasonable. I know we have such a thing in this dumb country as stand your ground, or castle doctrine as you say; the idea that somebody comes on your property you don’t need any reason, you can just shoot ‘em as soon as you look at ‘em but this seems really unreasonable to me. They’ve got four friends; the neighbor was alone.
In a battery action brought by the neighbor – I’m glad he survived, okay, that’s good – the rancher testified that he thought his neighbor was armed but pointed to nothing that would have reasonably justified this belief. It really feels like it’s setting up – if this is a trick question it’s a good trick. Yeah, you know, I might just go for it because this seems really unreasonable to shoot this person. But if it’s one of those absolute “nope, I’m on my property, I can do what I want, this is the old west and we like to play cowboy, America, bald eagles, hot dogs,” then maybe. I’ll see if bald eagle hot dogs is in the answers.
A, no because the rancher was standing on his own property and had no obligation to retreat. Yeah, okay, you have no obligation to retreat, but that doesn’t give you a proactive reason to kill somebody.
B, no because the rancher suspected that the neighbor was armed. I think A might even be better in terms of a no answer. I think A’s a little better because if we’re talking about reasonable suspicion that someone was armed or whatever like that, that’s a failure. There’s no way that’s true in this question. The only way we have a “no” answer, I think, is if there’s some absolute you get so stand on your property and shoot whoever you want. So, I think A is the better “no” answer, but I’m leaning toward a “yes” answer.
C, yes because deadly force is never appropriate in a property dispute. That is one of those wordings that seems absurd, that would be ridiculous if that’s the answer but maybe this’ll be one of those trick questions where the stupidest sounding answer is actually right. I don’t think that’s gonna be the answer.
D, yes because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense. I’m not in love with that wording. This was the answer I was leaning toward but as I read it [Sighs] it sounds weird. That makes it sound like, you know, the problem was that in abstract guns aren’t necessary for self-defense. Doesn’t that sound like that? Let’s see… yes because it was unreasonable for the rancher to consider the use of a gun necessary for self-defense. I dunno, maybe I’m just picking up on too much. I think that’s my answer. I think it’s between D and A. No, honestly, I don’t think A is good. Almost D and C but C sounds really stupid.
I’ll go D and A. Between D and A and I’m going with D. This is a very obvious answer so maybe this’ll be the trick question where I get it wrong.
Andrew: Alright! If you’d like to play along with Thomas you know how to do that, just share out this episode on social media, include the hashtag #T3BE, include your guess, your reasons therefore. We will pick a winner, shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright that’s our show! Thanks so much, good work everybody. You know, we came up short in some key ways but it’s still salvageable. It matters, your vote mattered, just look at Georgia, just look at these close states. It did matter, no matter what the end result it did matter. All the work you put in mattered. Thank you so much to everybody who did everything they could. [Sighs] Let’s see what happens! [Laughs]
Thomas: See you on Tuesday for more analysis of everything we could get to today on this election.