Topics of Discussion:
- Breakin’ Down the Law: Texas Executive Order GA-34
- H.R. 1 Breakdown
- Case Closed: Brnovich v. DNC
- T3BE Answer
Thomas: Hello and welcome to Opening Arguments, this is episode 471. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: I’m great. You know, we’ve got some law to break down for you, why don’t we get to it?
Andrew: Let’s hit it.
Breakin’ Down the Law: Texas Executive Order GA-34
[1:31.0] [Segment Intro]
Andrew: This is Texas Executive Order GA-34, and I’m covering it for a number of reasons, the largest of which is this is so much worse than you think it is-
Andrew: -based on the coverage in the press. But there is, happily, at least one thing that our listeners in Texas can do about it. Trying to give a little bit of a silver lining, but this is an executive order that is designed to get people killed.
Andrew: We’re gonna link it in the show notes. It has ten operative paragraphs. It deludes you, you know, it tricks you in the very beginning. It says “in all counties not in area with high hospitalizations as defined below, there are no COVID-19-related operating limits for any business or other establishment (period). Individuals are [Laughing] strongly encouraged to wear face coverings,” (it says) “but no person may be required by any jurisdiction to wear or mandate the wearing of a face covering.” Then it defines areas with high hospitalizations, and I’m gonna cover that in a minute, but you’re sitting there, at least if you’re me, and you’re reading it and you’re going okay, well at least it differentiates between …
Then I sort of let that ellipses hang in the air – because paragraph two says “in any county located in an area with high hospitalizations, A, there are no state-imposed COVID-19 related operating limits for any other establishment.” I want to let that sink in for a minute, and now I’m gonna go back to the definition of areas with high hospitalizations.
What Texas did, because they have 300 different counties, is they divided the State into 22 different Trauma Service Areas that sort of roughly correspond with major metropolitan areas. That TSA tracks – they are required to report the percentage of hospitalizations due to COVID. Now, let me define how they calculate that percentage due to COVID. It is the percentage of diagnosed, positive tests for COVID-
Andrew: -over the total number of beds. It is designed to be as small a number as possible.
Thomas: Total number of beds that they have or just total available? Open, empty?
Andrew: No, total number that they have.
Andrew: The idea is how much of the hospital capacity are COVID-19 patients? But notice if you come in with all the COVID symptoms and they start treating you but they haven’t given you the test yet-
Andrew: -you don’t show up in the numerator. Areas with high hospitalizations means any TSA that has had 7 consecutive days, counting today, in which that ratio, the number of COVID-19 patients as a percentage of total hospital capacity, exceeds 15%. Now, 15% is a terrible, huge, high number. And, as you might suspect when you delve into the TSA numbers, it’s 10-12% in Dallas, it’s 12-13% in Houston. Dallas has 2 million people in that TSA, so the numbers are off the charts high, but they’re only above 15% in three different TSAs out of 22, Culberson, El Paso, and Hudspeth. Again, doesn’t really matter if they are or they aren’t because under paragraph two there are no State-imposed COVID-19-relating operating limits, even if you are in one of these high hospitalization areas.
However, the one sop they have is the County Judge may use COVID-19-related mitigation strategies in a high TSA subject to the following provisions: Number 1, businesses may not be required to operate at less than 50% of total occupancy, with no operating limits on churches, of course, public schools or institutions of higher education and child care services; Number 2, no jurisdiction may impose confinement in jail as a penalty for violating any order; and no jurisdiction may impose a penalty of any kind for failure to wear a face covering or failure to mandate that customers or employees wear face coverings, except that a legally authorized official may act to enforce trespassing laws and remove violators at the request of a business establishment or other property owner.
I could go through the rest of it, the important paragraph for our listeners is paragraph 4, which says nothing in this executive order precludes businesses or other establishments from requiring employees or customers to follow additional hygiene measures, including the wearing of a face covering.
Thomas: Oh. At least there’s that.
Andrew: Yeah. Right, Libertarian paradise to the rescue. If you own a business or you make decisions in a business and you have individuals [Laughs] I’ll delete all the adjectives that I was about to insert there, who are going to come stomping up to your place of business unmasked, sneezing on stuff, licking stuff, and probably carrying a copy of this executive order in their hand, post the full executive order in your window, on your front door, and highlight paragraph 4, because you, as a business owner, as a property owner, have the right under this executive order to impose additional restrictions.
Thomas: Oh, maybe I missed it. I thought that said you could require your employees to do it.
Thomas: Did it also say-
Andrew: Yup, employees and customers.
Thomas: And customers, okay, sorry, I missed it. I just wanted to make sure, because you never know with Texas!
Thomas: I was wondering if they were gonna like not even allow that.
Andrew: That’s right. Look, this is really, really bad. I will tell you, paragraph 9 does a thing that I didn’t expect, which is suspends the determination of a state of emergency under two provisions of the Texas Code, 418.1015 and 418.108. That prevents local officials from implementing their own higher restrictions.
Andrew: It says those are all suspended (quote) “to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order,” (end of quote). Now, if I were the Mayor of Houston I would certainly use the fact that this EO differentiates between high county and non-high county hospitalizations to try and impose stronger requirements, but the plain intent of this is not just “we’re removing the State restrictions.” It is “we’re removing the State restrictions and we’re preventing sensible local officials from doing anything about it.” Even if you’re in an area where 13% of your hospital beds are to confirmed COVID cases, which is in the red disaster zone as identified by the CDC. When you have 13% of your hospital spaces taken up by COVID patients, that’s awful. That is an untenable situation.
Thomas: Wow, I would’ve said that was low, but I guess I don’t understand how hospitals work. [Laughs]
Andrew: Because think about it, it is incredibly rare to have one single diagnos- hospital work goes on. [Laughs]
Thomas: Yeah, hospitals had people before this.
Andrew: Yes, exactly. Having 10% of your beds taken up by COVID patients strains the system to its breaking point because hospitals generally do not have that much surplus capacity. Yeah, it’s worse than I expected from Greg Abbott, which says a lot. But you can lobby your employer not to be an idiot; not to be an idiot to you and your fellow employees and also not to be an idiot if you are forward facing and serve the public. That’s how I would recommend you protect yourself and you talk to the decision maker if you’re one of our Texas listeners, and I’m really sorry that your health and those around you are being used as a political football.
Thomas: Yeah, I mean that’s gotta be what this is, right? After just trying to deflect from the disaster that just happened that was largely Republicans fault, is this just an attempt to deflect from that, I wonder?
Andrew: Yeah, and relatedly Greg Abbott today went on Twitter to blame – who do you think?
Thomas: Oh man.
Andrew: It’s a two-fer.
Thomas: For what?
Andrew: For soon to be rising COVID cases in his State.
Thomas: Oh yeah, uh-huh. I have no idea, who would you – Dr. Seuss? I dunno.
Andrew: [Laughs] Yeah, that’s not bad, but if you picked illegal aliens and Joe Biden, that would be the winner, because Joe Biden is releasing hundreds of illegal aliens into Texas like, I dunno-
Thomas: Oh is he? Well then maybe better mask up!
Thomas: Even under your stupid theory, “oh sounds like there’s a bunch of immigrants with COVID, better declare a mask mandate,” you dummy!
Andrew: It’s bad. There you go. GA-34, no restrictions and no provisions for local restrictions, but at least you are still free to make reasonable restrictions on your own property, they haven’t taken that from you yet.
Thomas: [Sighs] You can have my COVID restrictions when you pry them from my cold dead…
Thomas: Anyway, yeah. Okay, well, that’s depressing.
Thomas: We wish our Texas listeners – [Sighs] Gosh, you’ve had a rough go, haven’t you?
Thomas: Texan listeners, I hope you’re doing okay. You don’t deserve this.
Andrew: No, no. Definitely not.
H.R. 1 Breakdown
[12:01.0] [Segment Intro]
Thomas: Tell us about HR-1. I hope this is the thing that will finally kill the filibuster [Laughing] but I don’t know if that’s gonna happen.
Andrew: [Laughs] As we are recording this, late last week while you’re listening, the House has passed H.R. 1, which is the equality act. Not the John Lewis Voting Rights Act, that’s still pending. The distinction between the two is that the John Lewis Voting Rights Act would restore Section 5 of the Voting Rights Act that was gutted by the Supreme Court’s opinion in Shelby County v. Holder in 2013. Reminder that that was a John Roberts decision.
Andrew: John Roberts is still not your friend. Section 5 was what required jurisdictions that have historically restricted the right to vote to go to a Court in Washington D.C. and get pre-clearance-
Andrew: -before they could put in additional restrictions. Makes perfect sense. All of a sudden in 2013 John Roberts said “No! Pfft!”
Andrew: “States aren’t suppressing the vote anymore, are you crazy?” So the John Lewis Voting Rights Act is still pending in the House. What has passed the House, however, is a really, really good bill called The Equality Act.
Thomas: One more question on the voting rights thing, sorry. I’m reading a book that’s talked about this lately and it’s really just a tragedy how much the Court has fallen short on voting rights in this country, the Supreme Court, and I’m wondering, is there anywhere in the John Lewis Voting Rights Act a restriction on the voter roll purges? Because that is also an atrocity. Is that something federally they can say “hey, don’t do that?” Or is it a States rights-ey thing that you’re not allowed to restrict?
Andrew: Actually, Thomas, that is the perfect segue-
Thomas: Holy moly!
Andrew: -to H.R. 1, because H.R. 1 contains, among its many, many good provisions, restrictions on how States can limit removing-
Andrew: -voters from the polls, from the voter rolls.
Thomas: No one’s gonna believe this, but we absolutely did not plan that.
Andrew: Nope! [Laughs]
Thomas: I just happened to be reading a book that talked about this like last night.
Thomas: [Laughs] Okay. That’s awesome!
Andrew: H.R. 1 is the wish list of good governance in terms of ending practices that are designed to suppress the vote. It expands voter registration; it expands voting access: vote by mail, early voting; it curtails purging voters from the voter rolls; it has provisions about responsible use of how to secure elections, how to share information between your State election officials, how to support States in securing their election systems, developing a national strategy to prevent against, I dunno, hypothetically a hostile foreign power engaging in cyber attacks on our systems. It’s a fantastic bill. It has sections about campaign finance.
But the part I want to emphasize, because this is sort of clever-er than I was, is I want to emphasize Section 2413. That is on page 311 of the bill. [Laughs] The bill is, you know, a taught 791 pages, but the part I want you to go to and read is [page] 311, it’s actually the whole section from Section 2411 to 2415, it’s about 43 pages. What it does is it requires that all States conduct their redistricting through the use of nonpartisan, independent, redistricting commissions. Every single State. So we don’t have to play hardball, piecemeal, State by State, you know, let’s squeeze a couple more members of Congress out of New York and California. It say let’s put into place everywhere a level playing field for everybody.
Section 2413 is how those commissions will go about deciding drawing their districts. There’s 30 pages of how you select the commissions, and just trust me, take my word for it. When this passes, if it passes, I will explain exactly how this operates, but in the interim I want to tell you it’s as good a set a criteria for ensuring that the commissions are nonpartisan as you can get. So, for example, Thomas and I would be prohibited from serving on one of these redistricting commissions.
Andrew: And we should be! We run a partisan radio show. It’s obvious we would have the thumb on the scale for the Democrat. It’s a good set up. It says the redistricting commission should consider A) first you’ve gotta equalize the population; B) then you have to comply with the Voting Rights Act of 1965; C) districts shall provide racial, ethnic, and language minorities an equal opportunity to participate in the political process and to elect candidates of choice and shall not dilute or diminish to elect candidates of choice, whether alone or in coalition with others. That’s designed to prevent cracking, spreading minorities out into a bunch of different jurisdictions to try and diminish their political vote.
Then this is kind of a contiguousness rule. D, it says “districts shall respect communities of interest, neighborhoods and political subdivisions to the extent practicable and after compliance” with the first three. A community of interest is defined as an area with recognized similarities of interests including, but not limited to, ethnic, racial, economic, tribal, social, cultural, geographic, or historic identities. No more of this, like, “okay, yeah, we’re gonna run the district halfway down the street and we’re gonna take a third of Philadelphia and combine it with the suburbs.” No. To the extent practicable, keep communities together. Have people in a neighborhood voting for the candidate that represents their neighborhood. That’s the way it used to be.
Thomas: Yeah! Hypothetically, doesn’t that make a whole lot of sense?
Thomas: That if you represent a district the district should make some kind of logical freaking sense?
Andrew: Yeah, you would think!
Thomas: And be like “oh, your next door neighbor, different representative, but then the person after that, same representative, but then across the street different representative” because you’ve gerrymandered the clownhorn out of it?
Andrew: Yup. And look, Maryland is terrible on this.
Andrew: [Laughs] When I go down the street it changes over the congressional district even though, you know, literally it’s what I do when I’m jogging, right? I cross at least into one other congressional district, and it shouldn’t be that way.
Thomas: Yeah, but side note, we absolutely should in every Democratically controlled State gerrymander the eff out of it because that’s the only way-
Andrew: Until this passes, yeah.
Thomas: Yeah, it’s the only way.
Andrew: No disagreement there, that’s part of hardball. That’s kind of point one, the factors that the commission is empowered to consider. The commission explicitly (quote) [Laughs] “is prohibited from favoring or disfavoring of political parties.” Right there in the bill! No, no more to the victor go the spoils, you cannot use partisan considerations in drawing your district. Then there are a bunch of lists of ways to increase transparency so the commissions are required to have their meetings be open to the public, they are required to publish their findings, they are required to have a public notice and comment period. You know, all of the kinds of things we typically associate with doing things out in the open. Is this perfect? No. Is it a billion times better than anything we have? Yes it is.
Thomas: [Laughing] Yeah!
Andrew: And, look, this is the kind of thing – if what we’re fighting over in the next three weeks is the Senate’s failure to pass H.R. 1, also sometimes called the For the People Act, and the Senate’s failure to take up and pass a $15 dollar an hour minimum wage, those are really good grounds to be fighting on as Democrats. To say hey look, we’re gonna have to do something, we’re gonna have to make changes to the filibuster, we’re gonna have to do something because we have policies that are broadly popular with 60-80% of the country, and we’re being stymied by a handful of Republicans and an arcane rule system from the 19th Century that was never intended to be like this. You know, you build your case, you build your political capital that way. We’ll keep an eye on it.
Believe me, notwithstanding last week’s episode, if Joe Biden is fighting insufficiently hard for these we will hold his feet to the fire, but let’s give him a chance first.
Thomas: These are issues that – if they’re not gonna break the filibuster for that, then what are you doing, then?
Andrew: What are they gonna do? Yeah.
Thomas: Just leave Washing- why even there?
Thomas: Why do you have a job? What’s the point?
Case Closed: Brnovich v. DNC
[23:18.2] [Segment Intro]
Thomas: Okay, Andrew, it’s time to break down [Sighs] Oh, this case. Some of the oral argument I think traveled in meme form.
Thomas: Of Republicans arguing, of Amy Coney Barrett who shouldn’t be there asking [Laughing] do Republicans have an interest in restricting votes? And the answer was essentially “well, ‘cuz otherwise we can’t win.” Did I mischaracterize that? Why don’t you give us the breakdown?
Andrew: Okay, so you did not mischaracterize it, but I think we do need a little bit of context regarding the question.
Andrew: I am well on record, even when I’ve been wrong, as saying that I think oral arguments are not a reliable barometer for how the Court is going to rule. I expect to be correct in this case because a bunch of sources are saying “Well, Amy Coney Barrett asked some awfully tough questions.” Yeah, right. That’s what judges do. [Laughs] Good judges, and look, I have never suggested that the problem with Amy Coney Barrett is that she’s not smart enough to be on the Supreme Court. She probably is.
Thomas: Yeah, that’s Clarence Thomas. [Laughs]
Andrew: Yeah. True. There is nothing that suggests that Amy Coney Barrett is the kind of brilliant you want on the Supreme Court. It should be reserved for our very best and brightest. There’s nothing about, in Amy Coney Barrett’s career, that leads me to believe that she is one of, you know, the nine smartest lawyers in the country. But, you know, is she smarter than Clarence Thomas? Yes, of course she is.
Andrew: None of us know anything about how she conducted herself on the bench in the 7th Circuit. If you do, if you argued in front of her, drop us an email, I’d love to know that because I have been in front of many, many judges who I would put on a certain ideological side of the spectrum, but it doesn’t mean that, you know, [Laughs] judges have a personality and some judges are rough on you with their questions and some judges are easy on you. You know, some judges go two decades without asking one-
Thomas: Yeah, without saying a single thing.
Andrew: [Laughs] Although, again, we’ve gotta give Clarence Thomas credit-
Thomas: No we don’t.
Andrew: [Laughs] We do not have to.
Andrew: He has been an active participant with the COVID Zoom oral arguments. While we’re on – this is the last I’m gonna say about Clarence Thomas. This is foreshadowing to where I think this case is coming out. In any voting rights case you look at Clarence Thomas’ argument, not anyone else’s, because Clarence Thomas is the person who has compiled a slightly idiosyncratic voting record on the Voting Rights Act of 1965. If you look at the questions Thomas asked you’re gonna see, as I break this down, that they fall squarely in line with the conservative side of the argument. At the end of the day I think the Democrats are gonna lose this case 6 to 3.
Andrew: I’m gonna talk about how they’re gonna lose it and what’s gonna happen as I break it down. We talked about the John Lewis Voting Rights Act, is designed to restore Section 5. Since there’s no Section 5 all of the litigation right now is over Section 2 of the Voting Rights Act, which is codified at 52 U.S.C. § 10301. It’s pretty straightforward.
It says “No … procedure shall be imposed or applied by any State … in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race, color, or” (then there’s a cross reference, but it means to a language minority). That’s subsection (a).
Then subsection (b) says “A violation of subsection (a) [can be] established if, based on the totality of circumstances, it is shown that the processes … are not equally open to participation by members of a class of citizens protected [in] subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
You might be saying, “gosh, Andrew, that seems pretty broad!” You’re damn right it seems pretty broad, and this conservative, just callin’ balls and strikes, original intent, strict textualists, are going to read into a law that explicitly says, (quote) “if, based on a totality of the totality of the circumstances,” (end of quote). They are going to read out that requirement as a matter of law and I’m gonna tell you how and why.
What’s the case about? The case is about two separate Arizona laws that are designed to suppress the vote. One is very obvious as to why it suppresses the vote, and it is a provision of the Arizona Code that is known as the Out of Precinct Policy. Here’s the way in which that works. Most voters in Arizona are assigned to vote at a particular precinct. Every election in person, people get that wrong.
Andrew: They show up to precinct number 5, they’re supposed to vote in precinct number 4. There is evidence in the record, by the way, that precincts are (quote) “sometimes located so counterintuitively that voters easily make mistakes,” (end of quote). But, look, you show up at the precinct, they say oh, Thomas Smith you’re not listed on our voter rolls. You say, well I’m definitely registered to vote, and they hand you a provisional ballot. Then you fill out that provisional ballot, you hand it back in, then the question is what happens to that provisional ballot? Suppose – there are a couple of different things that could then happen.
It could be determined that you were not registered to vote, and if it’s determined that you’re not registered to vote, everybody agrees, even though I think this is a terrible outcome, that that gets thrown away. Even if the State has same day registration, if you failed to do it in the right order and you’re not registered to vote and you cast a vote by a provisional ballot, it gets thrown away.
Also possible that you were eligible, you did register to vote, you were eligible to vote in that precinct, and they just didn’t have your name on the list for some reason.
Andrew: Then the ballot counts and it gets added back in. But what about the hybrid situation, in which you were eligible to vote, but you should’ve voted in precinct 5 and you voted in precinct 4 by accident?
Thomas: They email that on over to precinct 5.
Andrew: You would think. But here is, and let’s make the best Republican argument. The best Republican argument is suppose precinct 5 is, because of the way gerrymandering works, precinct 5 is in a different congressional district, is in a different county, has different ballot questions, has different candidates.
Thomas: Ahh, true.
Andrew: Yup. The way most States do it is they throw out any of the part of your ballot that’s not on precinct 5.
Thomas: Yeah, that’s fair.
Andrew: But, they keep your votes for President, Vice President, Governor, Lieutenant Governor, Attorney General, Senate, statewide. If it’s the same congressional district-
Andrew: You know, for your member of Congress. You just lose the parts that were on the ballot in precinct 4 when you should’ve voted in precinct 5. In Arizona they throw the whole ballot away.
Thomas: Oh god.
Andrew: And evidence presented, cited by the 9th Circuit, is in the last three elections, 2020, 2018, 2016, Native Americans, Hispanics, and African Americans in Arizona were twice as likely as whites to vote outside of the precinct to which they’d been assigned, and therefore have their votes not counted.
Andrew: The total number of ballots in 2016, you might imagine they didn’t have 2020 final ballots-
Andrew: -were 3,709.
Thomas: Not a ton, but…
Andrew: Not a ton? But not zero.
Andrew: That’s the first law, the Out of Precinct Law. The second is a tougher one, until you dig beneath the surface, and it is a ballot harvesting law. It makes it a felony punishable by two years in prison, $150,000 dollar fine, to collect and deliver another person’s completed ballots, with exceptions for imminent family members and, you know, mail carriers and election officials.
Thomas: Did you mean immediate family members?
Andrew: Yes, I did mean immediate family members.
Andrew: Do not ask me where I came up with – they’re soon to be your family members.
Thomas: Yeah. [Laughs] It’s imminent, I swear! Maybe you’re about to be married? I dunno.
Andrew: Yeah, and that’s what the exception is for. I can carry Grandma’s ballot to the ballot box.
Andrew: Look, harvesting is sometimes used, particularly in areas with mega churches, to evil effect. Whenever you have a group of people rounding up somebody else’s ballots there is the potential for mischief, there is the potential for undue influence. The mega churches are real simple, they hand out ballots during their Wednesday services and then walk down and collect them. It’s super easy to see, oh, you appear to have put your mark for President in the wrong place. A bipartisan presidential commission, Jimmy Carter and Bob Dole, as you might imagine with Bob Dole being on that, several decades ago listed ballot harvesting as a negative practice.
However, in Arizona you have the unique situation in which 4.5% of the State’s population is Native American. That equates to 27.1% of the land in Arizona, is Tribal land. I did not know that more than a quarter of Arizona is tribal land.
Andrew: It is nearly 20 million acres. Lots of Native American voters entitled to cast legal ballots do not have access to regular mail services. In fact, as the 9th Circuit noted, only 18% of Native American voters in the State have access to regular mail services. A large – and again, I’m quoting from the 9th Circuit here – “A large and disproportionate number of minority voters relied on these ballot harvesting processes to collect and deliver their early by-mail ballots.” There was no evidence of fraud, no evidence of people making sure, “oh we’ll collect ballots but only if they’re for Hillary Clinton.”
No, it was designed in historical context to remedy this issue of a significant chunk of the electorate, almost 5%, living on tribal land and reservations without access to U.S. mail. 80% of Arizona voters voted early by-mail in the 2016 election. In 2016. Arizona is a vote by mail State. Those things, I think, compel taking a tougher look at the ballot harvesting.
The 9th Circuit got together, en banc, and applied a two-part test to see whether these statutes violated the Voting Rights Act. That two part test was, number 1) Does the law impose a disparate burden on a (quote) “more than de minimis number of minority voters,” (end of quote). Think about in both of these cases, you have not changing the election levels of results, but you have thousands of voters who are disproportionately burdened.
If that’s the case, if it’s affected a significant number of people, then the plaintiff must show that under the totality of the circumstances, that’s repeating the language from the statute that I read to you, there is some relationship between the law as a tool of voter suppression and (quote) “social and historical considerations” (end of quote). That makes total sense, that’s how you suppress in a State. You look at it and go, oh, yeah, in our State minorities tend to vote heavily on Saturday, we’re gonna close all the Saturday precincts. If you were to do that, that would then potentially run afoul of the Voting Rights Act under the formulation as applied by the 9th Circuit, and that seems right.
Andrew: It seems like exactly the kind of thing you would want the Supreme Court to step in and stop. That was what was being defended by the Arizona Secretary of State, Katy Hobbs, and by the DNC. The RNC feels the exact opposite! [Laughs] This is where that question from Amy Coney Barrett came up. It was actually a question about standing. It was a good question.
Andrew: What was really telling was that the answer was not met with howls of laughter or “you just said the quiet part loud, dude.”
Thomas: [Laughs] Yeah! Amy Coney Barrett was like “shhhh! I wasn’t- you weren’t – ahh.”
Andrew: Yeah, kind of. Justice Barrett says “I understand why the DNC is a party to this case, because they are arguing that their voters are disproportionately burdened, they’re not being able to cast ballots on the same level playing field as white voters.”
Thomas: “What are you doing here?” [Laughs]
Andrew: Yeah, “what are you doing here?” What is it you would say you do here?
Thomas: [Laughing] Yeah!
Andrew: The RNC lawyer said, without a trace of irony, this is a zero sum game. Every vote for the Democrats is a vote that makes it harder for us to win.
Andrew: Then he went on. [Laughs]
Thomas: Is that how the law works, standing wise?
Andrew: No! [Laughs]
Thomas: [Laughs] Oh, okay.
Andrew: There would be a really, really good argument here that the RNC lacks standing. It will not affect – the Supreme Court kicks cases out on standing when they want to.
Andrew: I do not think they want this rule to stand, so I do not think that standing is going to wind up being a problem. I think they’re gonna address it in a single sentence. It may show up in one of the dissents, but this case will not get kicked out on standing. Here’s the argument that Brnovich was making, okay? I want to distill down his argument because if you’ve read any of the reporting on this, it’s all over the place and it’s terrible. That’s because part of what Supreme Court justices do when they ask questions is pose hypotheticals. You pose hypotheticals of things like poll tax, literacy taxes, you know. What level of intent is required? But you’re drilling down to look for inconsistencies, and if you’re not a lawyer it’s easy to get distracted by Brett Kavanaugh setting up an elaborate series of “no, I want you to answer this hypothetical, then this one, and then this one.”
Here’s what it comes down to. Brnovich is arguing that the proper standard is not “is there a disparate burden on a more than de minimis number of minority voters?” Rather, that first step should be that whether, in light of the State’s entire voting apparatus, the racially disparate impact of the law is substantial. Write that word down, put a little asterisk by it, because this is the test that the Supreme Court is going to come back with. They are going to adopt Brnovich’s argument, like I said, 6-3, and much like they’ve done with abortion rights, they’re going to set this up as the key and the path forward for Republicans to eviscerate voting rights going into the future. That is the death of a thousand cuts. As long as the one law you pass here is not substantial, keep passing them.
Andrew: Pass 75 different insubstantial ones-
Andrew: -and the net effect is a substantial rigging of the field in favor of Republicans and against Democrats. This is the argument Brnovich made in open court. Number one, first test should be “is it substantial.” Is that word found in the statute? Absolutely not. And crucial, Brnovich made this argument, that restrictions in one area of the law could be outweighed by benefits in the existing law.
He specifically mentioned the fact that – he said, look, Arizona is a vote by mail State, so early voting and voting by mail helps expand access to minorities, so if the legislature decided that they were going to cut back, close the polls a half an hour early, and it were determined that that had an adverse impact on minorities, I would argue that that is nevertheless justified because the reason they’re doing that is because minorities are voting by mail. In other words, the expanded access elsewhere outweighs the restricted access in this particular law. Again, is any of this present in the Voting Rights Act? Absolutely not.
Then you have to meet both tests. So, Brnovich says number one, you’ve gotta show that this is substantially burdening a minority group in light of the overall system, which is a huge burden. Then two, you have to show that the challenged law (quote) “is responsible for the substantial disparate impact on minority voters.” In other words, that’s a but for causation. Brnovich specifically said in oral argument that you only punish the legislature for their own discrimination, not for discrimination by others.
I know what you’re thinking, you’re thinking “so what you’re saying is the legislature can take advantage of private discrimination,” the answer is 100% yes, that’s what Brnovich was arguing in favor of.
Andrew: Did Kavanaugh, Thomas, Roberts, or Barrett ask that follow-up question? Absolutely they did not. I mention Clarence Thomas again, the one substantive question that he asked of the attorney, the Secretary of State lawyer, so on the side of the DNC, was “as a percentage of the voting population, how many people did the out-of-precinct regulation effect?” We saw that that number was 3700, and the lawyer just said – who did an excellent job at the argument, by the way, Jessica Amunson said “yes, that’s 0.15%.” You could hear Thomas sort of scoff at the “oh, zero point one five percent, you say?”
Andrew: That is where, again, I want to be wrong on this, but that is where I think the Court is gonna come out. I think it’s gonna reverse the 9th Circuit, it’s gonna craft a new test, and remember, Section 2 of the Voting Rights Act says “based on the totality of the circumstances,” but I think they’re going to adopt a significance test and a but for test, and then send it back to the 9th Circuit, and say “okay, now you tell me how these laws are gonna stand up in light of the fact that we’ve (quote) ‘clarified’ how these rules are to be applied.” That will validate the Republican strategy.
Thomas: Did nobody ask but how much – okay, this wouldn’t be something a judge would ask, but if you’re sitting there wondering, this is Arizona, correct?
Thomas: If you’re sitting there wondering what was the margin between Biden and Trump, it was .3%.
Andrew: Yeah, yeah.
Thomas: So yeah, .15 is half of that margin.
Andrew: Is half of the margin, yeah! Indeed it is. That would be a really, really, really good argument if anybody on the right wing of the Supreme Court cared, which they do but not in the way you’re thinking.
Andrew: [Laughing] Um, they want – the strategy is they want to endorse Republican State legislatures being able to come up with, you know, a dozen different mechanisms.
Thomas: Yeah, as long as they each only restrict –
Andrew: Each individually restrict a couple percent, yeah.
Thomas: Oh my gosh.
Andrew: That will turn a close – I mean, we saw this in Georgia and we’re gonna break down next week Georgia House Bill 531 that just passed. This is another one that’s in the hopper. Georgia’s a 50/50 State, and if you suppress .15% here and .15% there, you can turn that into 52/48 really easily. That’s the difference between Georgia and North Carolina. Another couple of points is the difference between North Carolina and South Carolina.
Thomas: [Sighs] Oh, we need those points. [Laughs]
Andrew: Yeah! These small differences at the margins add up really, really quickly. There you go, I’m sorry to have this be disappointing.
Andrew: This is – the way in which we fight back against this is nationwide voter protection legislations.
Thomas: Well, that was going to be my question. How much of this, and I know we already touched on this a little bit, but this is a lot to keep track of, I’m not a lawyer like you are. How much of the stuff is stuff that can be solved with federal legislation, voting rights, the John Lewis Voting Rights Act, all that kind of stuff? And how much of it will States still be able to tinker on and mess with?
Andrew: Two things. The John Lewis Voting Rights Act would be crucial here because there are, as of February 19th, three weeks before we record, but that’s the last time the Brennan Center updated their numbers, 253 bills pending in 43 different States that are classified as bills to restrict voting access. Almost every State in the country, 253 different pieces of legislation. Now look, differing levels of likelihood of getting passed, but if you pass the John Lewis Voting Rights Act and you reinstate Section 5 of the Voting Rights Act of 1965, then each and every one of those new laws must get pre-clearance, must be signed off on by a Court using heightened standards. Things like this that may skate by at the Supreme Court level on Section 2 would not pass Section 5 scrutiny.
Thomas: Yeah, I just hope that the Supreme Court is actually going to follow [Laughs] I feel like they could still just kind of screw us? Even if…
Andrew: All of the – the preclearance does not go to the Supreme Court.
Thomas: Ah, okay.
Andrew: It goes to a three judge panel constituted at the U.S. District Court for the District of Columbia. These are district court judges.
Thomas: And do they get to appeal it up or anything if it goes the way … the bad guys don’t want?
Andrew: They do, they do. But that’s where, hopefully, building on an established base of law, like we might be able to peel away a Clarence Thomas-
Thomas: Oh god.
Andrew: -when it is particularly-
Thomas: Here I thought we were ending on a good note and then you’re like “yeah, hopefully we can appeal to Clarence Thomas.” I’m out, you lost me.
Andrew: [Laughs] Understood, understood.
Andrew: But look, the more obstacles are placed in the path-
Andrew: You know-
Thomas: I mean, you’re right, there do seem to be some rules still. It hasn’t been a total free for all.
Andrew: Yeah. I said we’re still gonna do this podcast. It’s not the purge.
Andrew: Laws still mean something.
Thomas: It does, yeah. You’re right, it does, it’s just it is hard to know where that line is. In recent years it’s felt a little more like we’re on just thin ice sometimes with these things where it’s like well, yeah, it should work out.
Thomas: Or maybe the Supreme Court just decides not to follow the law that it should. I dunno.
Andrew: Yeah. Look, there are going to be lots of terrible decisions coming out of the Supreme Court for the foreseeable future. [Laughs] You know?
Andrew: I’m gonna have us end on that pessimistic note. Here’s what I want you to be looking for when the Court rules on this in about three months time. You’re looking for the word “substantial” in the opinion. That is not anywhere in the Voting Rights Act, but my prediction is that the Court is going to write that word into the statute.
Andrew: And say oh, yeah, well .015%, whatever.
[50:19.1] [Patron Shout Outs]
[1:01:08.3] [Segment Intro]
Thomas: Now it’s time for T3BE answer time! You know, I shouldn’t get my hopes up, but I still, you know, I’m gonna get my hopes up. I feel like maybe there’s a chance I porked my streak, let’s find out.
Andrew: This was a question about a man who kept german shepherds on his property that he had trained for guard duty and that he holds for breeding purposes. His neighbor had loaned him a snow shovel and then showed up in summer to get the snow shovel back. Entered the fenced in yard, and was attacked by one of the dogs and severely injured. When the neighbor sues the man is he likely to prevail? You went with D, yes because the man was engaged in an abnormally dangerous activity. I’m gonna cut to the chase-
Andrew: -you did not pork the streak. So, Thomas, I think you remembered 85%-
Thomas: That sounds right.
Andrew: -which is why you got hit by the attractive distractor here.
Andrew: Abnormally dangerous activity is strict liability.
Andrew: And D would be correct-
Andrew: -if, and as you pointed out, Eli Bosnick’s lava emporium.
Andrew: Abnormally dangerous activities.
Thomas: Training killer dogs, apparently not one of those things.
Andrew: Wild animals are considered-
Thomas: Oh my god!
Andrew: -an abnormally dangerous activity, and keeping them is inherently dangerous.
Andrew: Trained, domesticated animals are not considered abnormally dangerous.
Thomas: Yeah, a wild animal which might be 50 – if it’s killer wild animal that’s just chance, but one you specifically train to be a killer animal, that’s fine.
Thomas: Awesome, cool! You know, it’s fitting that I would still get this one wrong in this way.
Thomas: That’s fantastic. Impossible, can’t be done.
Andrew: [Laughs] The actual answer is A, no, because the neighbor knew that the man had dangerous dogs.
Thomas: Oh! At least I got the second chance.
Andrew: You got the second chance. What this is really testing, like many bar exam questions, there are two issues this is testing. First, it was testing the abnormally dangerous activity question, and it was like “are we gonna get you with-
Andrew: -are you gonna remember animals, but not wild animals?”
Thomas: And you got me.
Andrew: And we got you. If you had made it through and said no, wild animals yes, domesticated animals you’re not strictly liable, so then the question is what’s the status of the person, the neighbor-
Andrew: -coming back onto the land? There are – this is where you were giggling.
Thomas: And the shovel! Are we getting shovel law?
Andrew: [Laughs] We’re kind of in shovel law, here.
Andrew: There are three categories of people that can be on your property, and then there are subcategories of each of these. But there can be invitees-
Andrew: -licensees, and trespassers.
Andrew: So, an invitee. What is an invitee? And invitee is a member of the public who has a right to be on your premises. How do you get a right to be on someone’s premises? Well, their business is open to the public. It’s a public library or a public park.
Thomas: Why are we talking about public stuff?
Andrew: Because – you probably guessed by the word “invitee,” if I explicitly invite you onto my property-
Andrew: -you are then an invitee. But it is also you are considered an invitee if I run the local Taco Bell and you show up looking to buy some tasty tacos.
Andrew: Two crunchwraps, you’re an invitee. The next category down, and an invitee you owe the highest duty of care when an invitee is on your property. You have to affirmatively keep your property free of dangerous conditions, you have to perform regular inspections, you have to fix hazards. This is why the ice cream store mops up the spills. Slip and fall cases are incredibly easy to prove when you’re an invitee because the property owner has the highest duty of care.
Andrew: Trespasser, lowest duty of care.
Andrew: A trespasser cannot sue you for negligence. What a trespasser can sue you for is the combination of if you set up an attractive nuisance and you have the open swimming pool and it’s not gated off.
Thomas: Yeah, I’m an attractive nuisance!
Andrew: You sure are!
Andrew: Or if you have, like, Home Alone style man traps on your island.
Thomas: [Laughing] Yeah!
Andrew: On your island? On your property. Then we say you owe a duty to even a trespasser, somebody who is illegally on your premises-
Andrew: You know, not to set up the two paint cans that come down and-
Thomas: The paint cans. [Laughs]
Andrew: Yeah. Crush their skull. You have some duty to trespassers but it’s a pretty minimal one. It’s the “don’t kill them.” In the middle are licensees. Licensees are people who are invited onto the premises but not for your benefit as the property owner. The classic example is when your neighbor shows up on your porch, knocks on the door. Somebody that’s been over there before, they show up, they knock on the door, and you can say “Oh, Thomas, come on in!” They would then become an invitee, or you say “oh hey, Thomas, sorry, I’m super busy, I’m just about to record the show, come back in a couple of hours,” but they’re actually physically on your property for that exchange. All of that is to say despite the language in C, which is meant to tip you off to this-
Andrew: The neighbor coming back to get his snow shovel-
Andrew: -is probably a licensee.
Andrew: They’re not explicitly invited onto the premises, but you have reason to think they might show up. He’s not illegally on the premises.
Thomas: I did think it was a little weird that because someone borrowed something, it didn’t feel like therefore you can anytime go get it and it’s fine, you have the maximum duty of care or whatever.
Andrew: Yeah, exactly. You have the mid-range duty of care.
Andrew: It’s not an abnormally dangerous activity, so therefore ordinary principles of negligence apply, and here the ordinary principle of negligence is were you aware of this particular risk? The answer is yes.
Andrew: Property owner is required to notify-
Thomas: So I did get A over B, C not as ridiculous as I might have thought, and also the test is porked, I still can’t get an answer right.
Andrew: Yeah, it’s bad.
Thomas: That’s a fiendishly difficult question, honestly. Like, I remembered the abnormally dangerous thing and it came down to whether it’s a wild animal or a – I just love the idea that you can keep, keeping a wild animal would be more dangerous than keeping an animal you trained for murder.
Thomas: I love that. If I train a tiger to where it just instantly kills you, is that fine?
Andrew: [Laughs] No.
Thomas: That’s fine. But if I keep a wild chicken, or something, that I found. If I keep a raccoon, that’s-
Andrew: [Sighs] Oh, I love the idea of a wild chicken, that would be great!
Thomas: They exist, what are you talking about? There’s wild chickens everywhere!
Andrew: No, I know!
Thomas: There isn’t a town nearby-
Andrew: Picture that.
Thomas: God, where is it? Is there some – Fair Oakes or Fulsom, some town near me where they just have chickens everywhere. It’s weird, it’s like their thing, they’re just everywhere. If you drive around there’s just chickens. So anyway…
Andrew: I just finished reading the “a Libertarian walks into a bear,” if you haven’t read that yet.
Thomas: [Laughs] There’s that too.
Andrew: I highly recommend it, it’s so good.
Thomas: I am illustrating in a very compelling fashion here why this test is porked.
Andrew: You are.
Thomas: And why I’m right and the test is wrong.
Thomas: I think I’ve gotten all of these right, almost. Sometimes I, you know, no one’s perfect, I’ve missed a few.
Thomas: But yeah, the idea that a-
Andrew: Pobody’s nerfect, Thomas.
Thomas: An animal trained for murder, more safe than a squirrel that I trapped and keep on my property. There you go.
Andrew: [Laughs] Alright.
Thomas: Well, I’d better – in the past I’ve been so upset I forget to ask you who our winner is, but I’d better do my job, gotta be a professional. Who is this week’s winner, Andrew?
Andrew: Well, Thomas, this week’s winner is JustaSnarkyGerman on Twitter, who got it exactly right and our snarky German says “wouldn’t the warning signs and existence of a fence mean the owner did show due diligence to prevent an accident? I’d strongly argue for A, also that he entered (quote) ‘to get back a shovel’ or whatever it was, implies to me he had no invitation and did not announce his visit beforehand.”
Yeah, in that tiny little tweet our snarky German manages to get not only the proper standard but also the distinction between invitees, licensees, and trespasses. Congratulations JustaSnarkyGerman on being this week’s winner, and everyone give that person a follow, that is @NotHereToTweet3 on Twitter. I wonder who got numbers one and two? Anyway, everyone give a follow to @NotHereToTweet3 and congratulations German on being this week’s winner.
Thomas: And that’s our show. Reminder to catch us on the Stereo app every Wednesday at 5 pm Pacific, 8 pm Eastern. That means this Wednesday, because that’s every Wednesday. It’s a lot of fun. We get to hear your questions, we get to hear your voice, it’s so much fun, we love interacting with you, so go find us on the Stereo app. Get it on your phone. Thanks so much and we’ll see you for Rapid Response Friday!
Andrew: Until then!