Listen to the episode and read the show notes
Topics of Discussion:
- Live Show Announcement
- Andrew Was Wrong on the Size of Idaho
- Andrew Was Wrong – Gloucester County School Board Appeal
- North Carolina Gerrymandering Decision
- Yodel Mountain – Don McGahn Testimony
- Yodel Mountain – Epstein
- T3BE Question
Thomas: Hello and welcome to Opening Arguments! This is episode 312, I’m Thomas Smith, that over there is Andrew Torrez. How ya doin’ Andrew?
Andrew: I am doing fantastic. We just finished up our OA Fantasy Football draft, I figured I’d mention that now so that we would lose several thousand listeners who are like “I don’t want to hear about your fantasy football team” But-
Thomas: Well the other ones are just sad that they couldn’t get in.
Andrew: That’s right. [Laughs]
Thomas: It’s almost like you and I should do like 47 leagues, any listener who wants to play. But that would spread us pretty thin, I can’t even keep up with one.
Andrew: Yeah, yeah.
Thomas: Yeah, well that’s fun. I am particularly excited because we might have a little live show announcement?!
Andrew: Oooh! Yeah.
Live Show Announcement
Thomas: We can tell you this, we can tell you this. The next live show is officially on October 12th, so that’s comin’ up! Five weeks or so? Plenty of time, plenty of time to prep. And we will get the link out for tickets, of course, to patrons first, so that will go out. Patrons, keep an eye out! That should be up pretty soon. So I cannot wait! It is going to be a fun time-
Andrew: You wanna tell them where?
Thomas: Oh I didn’t!
Thomas: Sorry, I thought I did but my brain was – it’s just somewhere! [Laughs] It’s somewhere near – everybody buy a plane ticket to where you think it is and we’ll see if anyone got it right!
Andrew: [Laughing] Pocatello, Idaho! There we go! [Laughs]
Thomas: I know, I default to the less information where Andrew is just, last time, was just spillin’ all the info. Sorry! It is in L.A.! Yaaaay! No, not really yay, L.A. sucks. But no, it’ll be fun, it’ll be great ‘cuz we’ll be there!
Andrew: Yeah, and I don’t think it sucks at all! I’m very excited about it!
Thomas: [Laughs] Andrew’s never had to drive in L.A., probably. That’s the key. It’s a big difference. So try not to drive. I cannot wait, it’s going to be so fun. The last one was a lot of fun. Of course we’ve got the VIP, we’ve got the platinum hangout, all the same stuff from last time, and I think it’ll be better. I think it will be a little bit better, no offense to our New York friends but we learn, we improve, and it’ll be even better than last time, I think.
Andrew: I’m with you! Let’s keep raising the bar!
Thomas: Yeah, literally? No not literally.
Andrew: Yes. [Laughs]
Thomas: But figuratively with the Bar Exam. Ah, okay, so that’s really exciting, I can’t wait to see you all again, everybody who comes, so look out for those tickets and for everybody else – I forget how long we do patron only but we’ll get those links out on all the social media, everything, and in the show notes for everybody. So there you have it! Okay, any announcements, Andrew? Besides the live show in a mystery city known as L.A.
Andrew: [Laughs] I have received multiple requests, because everyone’s favorite cow farmer Devin Nunes has filed yet another-
Andrew: Well, A, his defamation lawsuit related to “Devin Nunes’ Cow Lawsuit” was dismissed exactly as we predicted because he’s a crazy person, but because he’s a crazy person he’s filed a new and even more insane lawsuit! And we will discuss that next week. Would love to do it this week, but you know, we have to talk about horrible stuff this week, so.
Thomas: I have to point out that Devin Nunes is certainly not a better cow farmer than our very own Dell on the Facebook page who of course gave us P. Andrew Taurus, I mean that’s first place.
Andrew: [Laughing] Yeah, no, without a doubt!
Thomas: Devin Nunes, second favorite whatever you said. Cow something?
Andrew: Yeah, he’s my favorite fake cow farmer, not my favorite real cow farmer.
Thomas: Oh! Okay. Oh, I see. Different list.
Thomas: Alright well we’ll look forward to that. Okay, so with that said, cow farming aside we can get to our first segment which is, Andrew was wrong about some things.
Andrew Was Wrong on the Size of Idaho
Andrew: [Sighing] Yeah, I was wrong about a couple of things. Boy should I do the serious one first or should I do the – well, they’re both equally serious.
Andrew: Let’s start off with-
Thomas: They’re definitely not. [Laughs]
Andrew: Yeah. [Laughs] Let’s start off with last week when we were talking about numbers and expanding Congress I said Idaho when I meant Wyoming and I think the entire state of either Idaho or Wyoming wrote in to complain about this.
Andrew: No, look, this was a totally indefensible thing on my part. Idaho actually has two congressional districts.
Andrew: It is not among the ten smallest States in the Union, it’s eleventh.
Thomas: Oh, really?
Andrew: [Laughs] Yeah, there are ten States smaller than Idaho, so there you go!
Thomas: What are they? States I’ve never even heard of? [Laughs]
Thomas: One of them’s Wyoming, I guess.
Andrew: Yeah, well the two smallest are Wyoming at 572,000 and Vermont at 627,000. And you know what I think? You know my liberal East Coast bias is showing, I’m gonna start using Vermont-
Andrew: -as my example of teeny tiny State that’s way overrepresented in the electoral college.
Andrew: Yeah! So Vermont, we’re comin’ for ya, baby!
Andrew: [Laughing] Also, interestingly enough – I mean this is, as I was going through the numbers because even on an Andrew Was Wrong I can’t help but go down the rabbit trail. In the 2010 census Idaho had 1.6 million people and West Virginia had 1.8, and Idaho got two congressional districts and West Virginia got three on that basis.
Andrew: In the nine years since then, the best population estimates are that today Idaho has 1,790,182 people and West Virginia has 1,791,951 people. So literally less than 2,000 people separate Idaho from West Virginia and yet West Virginia has an entire additional congressional district.
Thomas: I don’t think any of these places should have any.
Thomas: Alright, give ‘em one. That is like – the Sacramento area has like almost that many. I mean, come on!
Andrew: So, you know, look. It points out – it is, joke aside, it’s ridiculous that one state can have 2,000 people more than another and, you know, 25% more congressional seats. That’s crazy. So I was wrong on identifying the tiniest State in the Union, my apologies to the good people of Idaho, but I think we were definitely right on expanding Congress.
Thomas: [Laughs] Yeah. I still don’t know the difference. Every time you say Idaho and the other one, I already – they all blend together to me, sorry. I don’t actually see differences between those two States – and Wyoming, they’re the same. But, apologies.
Thomas: [Laughing] I’m just trying to piss ‘em off more! [Laughs]
Thomas: I’ll take some of that heat from you!
Andrew: Great, thank you! Yeah, I appreciate that!
Thomas: Write me in-
Andrew: Send all hate mail to-
Thomas: Haymakers! No don’t send any haymakers.
Andrew Was Wrong – Gloucester County School Board Appeal
Thomas: Okay, well now that you’ve covered the whimsical Andrew Was Wrong what’s the very serious Andrew Was Wrong?
Andrew: Yeah, the very serious one. This is an extension of the story we covered in episode 306, the trial court victory for Gavin Grimm, the transgender student who was excluded from public school bathroom, we went through all of that in episode 306. I predicted that the Gloucester County, Virginia School Board would not appeal that decision and as of yesterday they did. I cannot imagine why you would do that and I wanna put out a call to our listeners. If you live in Gloucester County, Virginia, you should consider running for the School Board. I’m sure it’s a conservative area. Everything we read from the case indicates that the trans complaints came from the community and this and that. There is a very, very strong economic conservative reason to run for the School Board and that is this, 42 U.S.C. § 1988 provides that in Civil Rights cases like this, section 1983 Civil Rights cases, the losing party has to pay the prevailing parties’ attorneys fees and costs. Those were awarded in this decision, and so appealing means that not only did the School Board incur all of the costs already but they’re gonna add six plus figures to that by appealing this to the Fourth Circuit, and there is no chance that they’re gonna win in the Fourth Circuit.
Thomas: But you’re saying you can run on the thing we all know is fake conservatism when actually it’s just the culture roar and pretend that they actually care about fiscal conservatism again? And make them admit that they don’t?
Andrew: That’s exactly right.
Andrew: I think I would’ve put it slightly more-
Thomas: Put it a little differently? [Laughs]
Andrew: [Laughs] Slightly more optimistically! But probably you’re the real way to put it.
Thomas: I think it’s the age difference between us. [Laughs] You remember a time when fiscal conservatism was some part of the Republican platform.
Andrew: Yeah, no, I think that’s right!
Andrew: That’s probably correct even though it’s a swipe at, you know, dinosaurs roaming the earth back when I cut my teeth on formal politics.
Thomas: No, they at least pretended it was during Obama so I’ll give ya that.
Andrew: Well, I appreciate that. So look, I was wrong. In the long run I continue to believe that this is going to be a victory. I should add, by the way, that the trial court denied the School Board’s Motion to Stay the Judgment Pending Appeal, and so this is going to be on appeal but will go into effect. So it’s still a good result, it’s still good news. Yeah, so nice-
Thomas: The School District just wants to waste some more money-
Thomas: -on being horrible?
Andrew: It really is.
Thomas: Yeah, okay.
Andrew: It is virtue signaling to bigots in rural Virginia at a cost of, they’re assuredly already in and around-
Thomas: Shoestring budget?
Andrew: -the million dollar budget in terms of, this has been a four year litigation matter. It’s probably on the close order of a million dollars, and they’re about to add to it.
Thomas: I can’t believe they’re allowed to just do that with School District money. What stops? I think we kinda talked about this back when my High School was part of a lawsuit, ‘cuz they don’t have any money.
Thomas: Where does that money come from? And who can stop anybody from wasting school money on stupid lawsuits?
Andrew: You abso – well, I was gonna say you absolutely could, it would depend on the specifics of each State Constitution but you absolutely could, the State Legislature could pass a law that says the School Board has to get approval from the Attorney General of the State before they can file a lawsuit in which they’re potential liabilities exceed “X.”
Andrew: You could do that!
Andrew: Or, you know, take an appeal, and that’s-
Thomas: Maaaybe that should do that!
Andrew: [Laughs] Well, you know, I would want to be careful about handcuffing School Districts.
Andrew: But certainly there are things that could be done. This really does shock me. And again, I was wrong but I guess I shouldn’t underestimate the bigotry of certain folks.
Thomas: You were wrong because of the Optimist Prime you were. That’s a good way for you to be wrong.
Andrew: Yeah. Yeah, that’s right.
Thomas: But it’s okay. So you still think it will be just a waste of money and unsuccessful and the result’ll still be good?
Andrew: I do. I do.
Thomas: We’ll cross our fingers that you’re not wrong on that.
Andrew: Let’s do that. [Laughs]
Thomas: Alright, well that covers that. I think now it is time to move on to our main segment today.
North Carolina Gerrymandering Decision
Thomas: We are going to be talking about the North Carolina gerrymandering decision. Yeah, I can’t begin to summarize what’s happened [Laughing] so why don’t you?
Andrew: [Laughs] Alright, so top line. This is an unambiguously good decision and this is exactly consistent with what we have been telling you about gerrymandering law pre-Rucho, post-Rucho. We’re gonna go through and break it down, but if you’re reading reports that say it’s a good thing and you’re wondering how to square that with the Supreme Court saying, you know, it’s Thunderdome when it comes to gerrymandering we’re gonna explain that. And the easy explanation is that this is a State Trial court opinion and as we have discussed in a variety of contexts, including the Kansas abortion case for example the new kind of frontier – the Supreme Court is garbage and they’re gonna be garbage for a long, long time, so, you know, the next frontier really is heading back to State courts where the Federalist Society’s project of staffing every member of the federal judiciary with a 35-year-old hack, that has not proliferated down to the State level yet. So even in a State that we ought not, I mean the numbers here, we think of North Carolina as being a conservative state, the numbers don’t really support that. We think of it because of gerrymandering! [Laughs]
Andrew: But North Carolina is relatively evenly split and – well, why don’t we dive into this. You know, “brief” 357 page opinion. [Laughs]
Andrew: Oh man, you combine gerrymandering with nearly 400 pages of text to read and-
Thomas: Andrew’s wheelhouse, everybody!
Andrew: I was just in heaven last night and this morning.
Thomas: Yeah, yeah.
Andrew: No, so this is a Trial court opinion. This is striking down the North Carolina State legislature, they’re State House of Representatives and State Senate district maps. The opinion contains 291 pages of factual findings. So if you’re not mad enough already about the state of gerrymandering, curl up with those 291 pages and you will get mad. I’m gonna hit kind of the highlights. This is another Thomas Hofeller case.
Thomas: Oh, wow.
Thomas: What didn’t that guy do? [Laughs]
Andrew: And he directly did the maps in North Carolina. So in fact Republicans engaged Hofeller to draw the map in 2011, it was designed (quote) “to ensure Republican majority” (end quote) in State legislative districts. Hofeller, by the way, is cited 201 times in this opinion. The Hofeller plan in 2011 totally worked. So some numbers: in the next elections, 2012, Democrats got 48.4% of the Statewide two-party vote, that translated into, out of 120 House Seats in the North Carolina State legislature the Democrats won 48%, 48.5% of the popular vote. How many of 120 Seats do you think that translated into?
Thomas: 120? Oh, so this is the State?
Andrew: Yeah, this is the State House of Representatives, yeah.
Thomas: Let’s see. I’m going to say… Hmm, let’s see, how far do they wanna take this? [Laughs] How evil do they like to be? Uh… I feel like, you know, they’re not gonna say like zero somehow, but they’re gonna be pretty evil, they’re gonna want a safe majority. I’m gonna say… 120… I’m gonna say, ummm. 32.
Andrew: Yeah, uh you were a little more pessimistic. So 43.
Andrew: [Laughs] They one a third of the seats despite winning basically half the votes. In the Senate – and it looks like North Carolina has a 60% threshold for veto-proof majorities instead of two-thirds or three-quarters because the opinion says, “Republicans thus won a veto-proof majority in the House, 77 out of 120 seats, despite just winning a bare majority of the Statewide vote.” In the Senate your numbers were a little closer. [Laughing] Democrats won, again, almost half the Statewide vote, almost 49%, but won 17 out of 50 Seats in the North Carolina State Senate. So that was 2012, same numbers basically in 2014 and 2016. 2014 was a gubernatorial year so Republicans did slightly better, they won 54.4% of the Statewide vote, which translated into veto-proof majorities in the House and Senate, over 60%. In 2016 North Carolina was in play, Hillary Clinton campaigned there extensively, and Republicans on a Statewide level won 52.6% of the vote and got 61% of the House and 70% of the Senate. So, okay, the North Carolina maps are really, really bad. They were also super, duper racist. This will not surprise you. And so in 2016 a Federal court in North Carolina, U.S. District court, struck it down, that was then affirmed at the Supreme Court level. So in 2017, summer of 2017 the Supreme Court says, “yup, this District Court got it right, these districts are not only politically gerrymandered, they’re racially gerrymandered” because, hint, particularly in the South those are basically the same thing. They sent it back and said, “ya gotta fix this,” and so guess – in order to fix the problem of gerrymandered districts created with the help of Thomas Hofeller – who do you think the Republican Senate in North Carolina hired in August of 2017 to draw the new maps to comply with the Supreme Court?
Thomas: Thomas Hofeller.
Andrew: Thomas Hofeller!
Thomas: Oh, okay good. I wasn’t sure if he was dead yet.
Andrew: No, fortunately he’s dead now but he was alive then. This is paragraph 18 of the opinion: “In explaining the choice of Dr. Hofeller to draw the 2017 Plans, Representative Lewis” that’s a Republican in the State House in North Carolina, “stated that Dr. Hofeller (quote) was ‘very fluent in being able to help legislators translate their desires’ into the district lines using” the program he developed, which is called “Maptitude.” So, yeah. They hired the guy who drew the horribly racist gerrymandered districts and said, “look, can you help us do this so that it’s ‘not racist’”
Thomas: There’s only one man for this job!
Andrew: But will totally benefit Republicans. Hofeller met with Republicans in private, they refused to allow him to be called to testify before the State House, and the key finding is that Hofeller had been drawing Republican districts – this guy is like the guy who preps for the Fantasy Football league starting in April, right?
Andrew: You know, who watches the NFL draft. This guy had been drawing majority Republican-
Thomas: [Laughing] Just doodling gerrymander districts in his spare time?!
Andrew: Before the Supreme Court issued its ruling! And the Republican party in North Carolina lied about it. Because, as you might imagine-
Thomas: He goes to an Italian restaurant and he’s like, “can I have some crayons so I can doodle some gerrymandered districts on this paper table cloth?” [Laughs]
Andrew: Yup. Yup! That’s what this guy did and so he already was figuring out, hey, ixnay on the ackblays, right? Still gerrymander but pass muster with this, you know, obviously right wing Supreme Court. And in open court the Republican party in North Carolina said “oh, no, we had him draw brand new districts and yes, we did it to benefit Republicans but absolutely not to penalize minorities.”
Thomas: Yeah, he pinky-sweared us that it was not racial, it’s just totally for Republicans?
Andrew: Right. And I’m gonna address that in a minute, but I wanna point out, this is pretty rare and I don’t know that anyone else has talked about it because it’s buried on page [Laughing] 290 of the opinion. It’s paragraph 704. It says, “The Court is troubled by representations made by Legislative Defendants” that means the Republicans, “or attorneys working on their behalf in briefs and arguments to the Covington Court” that was the District court that found racial gerrymandering, “and to General Assembly colleagues at committee meetings that affirmatively stated that no draft maps had been prepared even as late as August 4, 2017.” And then there’s a ton of citations. They did it, over and over again, they said “nope, no maps, no maps, no maps,” not true. And then the Court says, “For the purposes of determining liability for the claims asserted in this litigation, the Court finds it unnecessary to delve further into these concerns, other than to note that the Court, as previously stated, is persuaded, and specifically finds, that Dr. Hofeller’s intent and actions, as evidenced throughout his map-drawing process from at least early June 2017, are attributable in full to Legislative Defendants.” That’s, again, judges tend not to speak this way, and they tend not to call out individuals and their lawyers for lying to them in opinions, and you can see this Court saying, “look, you guys lied to us. You had a secret plan and you stated under oath in open court no we don’t” and that’s… troubling. [Chuckles] To say the least. So, as you pointed out, the reason for this lie is because the North Carolina Republican strategy was to follow what ultimately happened. They ultimately were sort of predicting that the Supreme Court would do what it did in Rucho, which the handwriting was on the wall as soon as Brett Kavanaugh replaced Anthony Kennedy to say, “yup, political gerrymandering is just fine!” and so that’s what they did. The evidence is virtually undisputed that they drew the maps for partisan gain. So now, if that’s the facts, if those are the facts, how can the North Carolina Court conclude that this is impermissible gerrymandering? The answer is the same way that the Kansas State Supreme Court could find broader protections for the right to abortion under the Kansas State Constitution than in the U.S. Constitution.
Andrew: So page 292 is where the legal analysis here begins, it starts off – and again, I’m gonna hit the high points. It starts off by noting that standing under North Carolina law is more broad than under federal law, and then there’s a lengthy discussion of Rucho. This begins at page 298, paragraph 19, and it says, basically it says Rucho is a terrible decision. [Laughs] It says the Supreme Court noted all of these problems with blatant examples of partisanship driving districting decisions and that the congressional maps in that case were (quote) “highly partisan, by any measure,” (end of quote) [Laughs] and then kind of dryly it says “nonetheless, the Supreme Court concluded, in the Majority opinion, that ‘partisan gerrymandering claims’” and this is quoting from Rucho, “present political questions beyond the reach of the federal courts.” And they italicize “federal” and it gets that little citation that says “emphasis added” and their argument is, well that’s great and all, you’re not in federal court, you’re in state court and we are free to note that the North Carolina State Constitution offers more protections and is more expansive than the U.S. Federal constitution. So they located those protections in three major areas, and each of these I think are really, really interesting. So, first, North Carolina, they’re Declaration of Rights, Article I Sec. 10 of their State Constitution has a “free elections” clause. It says (quote) “All elections shall be free.” (end quote) and the Trial court here says the free elections clause is one of those clauses that makes the North Carolina Constitution more detailed and more specific than the Federal Constitution in the protection of the rights of its citizens. The U.S. Constitution doesn’t have a free elections clause, although several other State constitutions do.
Thomas: What does that mean, exactly? [Laughs] Free?
Thomas: What does that entail? That’s the whole law, that’s the whole wording is just [Sing-songy] “the election is free!”
Andrew: So, yeah, here’s the way to think about this. The North Carolina State Constitution has a preamble, preamble “We, the people of the State of North Carolina… for the preservation of the American Union and the existence of our civil, political and religious liberties,” you know, and there’s [Laughing] a reference of being grateful to “Almighty God,” whatever, “do, for the more certain security thereof and for the better government of this State, ordain and establish this Constitution.” And then Article I is the “Declaration of Rights,” so it’s the North Carolina equivalent of the Federal Bill of Rights and, like the Federal Bill of Rights, these are positions of principle. They’re short statements that say, “we hold it to be self-evident that all persons are created equal”, “all political power is vested in and derived from the people;” and “all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” That was Section 2, for example. And so Section 10 just says, it’s called “Free elections” and it says “All elections shall be free.” What it means by “free,” then, gets interpreted by State case law in the same way that what the First Amendment reads when it says “freedom of the press shall not be abridged” what “freedom of the press” means is defined by Supreme Court case law, well, similarly these broad principles get explicated over time in State Supreme Court jurisprudence, and the free elections provision, it looks like, is somewhat clear from the history of North Carolina jurisprudence, that an individual can locate some right, some affirmative right to have their vote count in this Section 10 that says “elections shall be free.”
Thomas: Huh. What a concept!
Thomas: But federally we have no guarantee that our vote will count.
Andrew: Yeah, no, absolutely.
Andrew: Yup. And I wanna point out – let me – I was explaining how this Court is interpreting State Constitutional law, they do admit, this is directly from the opinion, “the broad language of the Free Elections Clause has not heretofore been extensively interpreted by our appellate courts.” So, in other words, this is somewhat new ground that this decision is breaking.
Andrew: And for that reason could get overturned at the appellate level. They are conceding on this first point, the Free Elections Clause point, that there’s not a lot of law on it, but I will tell you this, the underlying argument on the Free Elections Clause is a pretty good argument. The idea is that clause has to mean something, right?
Andrew: And so if it means anything it means that extreme partisan gerrymandering, again quoting from the decision, “namely redistricting plans that entrench politicians in power, that evince a fundamental distrust of voters by serving the self-interest of political parties over the public good, and that dilute and devalue votes of some citizens compared to others—is contrary to the fundamental right of North Carolina citizens to have elections conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.” That’s not a bad argument.
Thomas: Yeah. Well put, too.
Andrew: Yeah! So that’s point one. Point one is this violates a specific provision that is in the North Carolina Constitution, and it’s in other State Constitutions, but not the Federal.
Thomas: Before we get to point two, why don’t we take a quick break and then we will find out what point two is! [Laughs] Cliffhanger!
[Commercial – joybird.com/oa for 25% off you’re your first order]
Thomas: Alright Andrew, what is point two that we’ve been waiting since last week to find out?
Andrew: [Laughs] So point two! This is paragraph 52, and this is the North Carolina saying, in addition to violating Article I Section 10, the Free Elections Provision, it also violates the North Carolina Equal Protection Clause. So, again, in its Constitution North Carolina has a provision requiring equal protection under the laws, that tracks the language of the 14th Amendment. So this argument is a little different, and this is – again, you will recognize this as being similar to the argument that the Kansas Supreme Court used, which is yeah, our State Equal Protection Clause uses the same words as the Federal Equal Protection Clause so we can look to Supreme Court interpretations as guidance but we don’t have to follow the Supreme Court, we’re not bound by what the U.S. Supreme Court says the 14th Amendment means, we’re free to say that it means something different in the State of North Carolina, and that is in fact what this Court says here. It says “North Carolina’s Equal Protection Clause provides greater protection for voting rights than federal equal protection provisions… North Carolina courts can and do interpret even ‘identical term[s]’ in the State’s Constitution more broadly than their federal counterparts.” And so here this argument, I think, is akin to the – I made the analogy, right? It’s akin to the Kansas abortion decision. In some ways it’s a stronger argument because there are more case citations that demonstrate over time how North Carolina has not – the Latin phrase is read in pari materia, and it means “to read a provision the same as another provision” to for a very, very long time, and it’s still kind of the majority rule, most courts when you have an identical statute or Constitutional provision in the State that replicates a federal law or federal Constitutional provision they will say, “yeah, we read those two in pari materia.”
Andrew: Whatever the Supreme Court says equal protection under the law means, we think it means that way in North Carolina as well, but there are a lot of exceptions and the notion that a State is not bound to that is pretty well established. The only downside is you do have to differentiate and distinguish the operative Supreme Court decisions. That’s not hard here because the Rucho decision is so terrible! [Laughing] I mean, you know, we went through it. And it’s not just terrible in terms of its result, it’s terrible in terms of its internal logic. The most obvious being that the Rucho decision ruled the partisan gerrymandering claims are not justiciable, they’re political, and the opinion says, “well you’ve got a problem with your politics then take it up through the political process.”
Thomas: Yeah, how? By voting for something that won’t count?
Andrew: [Laughs] Right! Yeah! And that is so transparently, mockabley, laughably ridiculous that I think we’re going to see State Supreme Courts distinguish that and say “while we are of course bound to follow Rucho to the extent that it applies to any decision within the State, we think it was not well decided.”
Andrew: State Supreme Courts very rarely will say that about a Supreme Court opinion for obvious reasons, but I think we’re headed towards that and I think that this opinion – and again, remember, this is State Trial court judge. He’s two levels below sitting on the State Supreme Court so you have to tread kind of carefully. This is about as good a swipe at the Rucho decision as you’re gonna get from any kind of a State court judge.
Thomas: I like it!
Andrew: Me too!
Thomas: Swipe away, everyone, it’s a stupid decision.
Andrew: It is.
Thomas: [Sarcastically] Why don’t poor people just buy more money, Andrew? I don’t understand!
Andrew: [Laughs] Right!
Thomas: And if you don’t like gerrymandering why don’t you just use your ruined vote to fix it? [Sighs]
Andrew: Yeah. And again, we will go back, the only remedy at this point is to crash the system and to illustrate what an unworkably terrible decision that is. And, by the way, I mean again let me do a little bit of a sidebar because this question comes up a lot. Obviously I have staked out the “small c” conservative pro-stare decisis opinion, a measure of jurisprudence. I’ve said look, that’s my legal philosophy that in order to reverse exiting precedent, in order to disregard stare decisis the bile has to be at the back of your mouth, it’s gotta be the standards articulated in Planned Parenthood v. Casey, it’s gotta be a decision on the order of Brown v. Board of Education. Look, yup, this case is squarely foreclosed by Plessy v. Ferguson but you know what? We just got it wrong in Plessy v. Ferguson, we’re admitting that, we are coming out and saying this decision was terrible and we’re reversing course, and so people have asked, how do you deal with really, really bad decisions that maybe don’t rise to the level of a Plessy v. Ferguson, and again I would say the standards for that were set forth most recently in the Planned Parenthood v. Casey decision, and chief among them on non-ideological grounds is the notion as to whether an opinion has proven (quote) “workable” (end of quote), and the reason for that is fairly easy to understand. The Supreme Court is supposed to be interpreting law, not designing policy, and so you could imagine the Supreme Court saying “okay, well the law pretty clearly seems to mean ‘X’” and then as a result of them having an opinion that says ‘the law means ‘X’” then you have a catastrophe. Things are just awful and non (quote) “workable” and so that sort of practical backstop of, “okay look, we reserve the right to take a do-over when we did something and didn’t think about the consequences.” I would put Rucho into that category. I think immediately already we know that this is not a workable decision for the reasons that we’ve just described. So I thought – I beg your indulgence on that rabbit trail a little bit but that’s why I would put Rucho in the category of cases – very, very small – category of cases that are modern decisions for which I think you do not have to follow stare decisis. I agree that’s gonna open me some subjectivity.
Thomas: [Crosstalk] Would Citizens United be in that?
Thomas: Citizens United? Would that be in there?
Andrew: Let’s talk about Citizens United, that’s been on the whiteboard in bold font.
Andrew: We’re gonna tease that.
Thomas: Yup, right after we get to eminent domain we will get to that. [Sighs]
Thomas: Three years? Going on three years? [Laughs]
Andrew: Something like that! Yeah, lets. We’ll put it up, I actually think we have a good chance of getting to it in the fall, so, famous last words.
Andrew: Alright, so off that rabbit trail, those were the first two reasons. The third reason that this Court said “we think that this partisan gerrymandering is unconstitutional” is because it violates the rights of freedom of speech and assembly that are contained in the freedom of apeech clause, Article I Section 14 of the North Carolina Constitution. I think this is the weakest argument. This argument was advanced in the gerrymandering cases as well, the North Carolina clause is different than the 1st Amendment, it says “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained,” so it’s not quite the same language as the 1st Amendment, and the freedom of assembly clause says “The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances.” That becomes a slightly better argument because of the phrase “to instruct their representatives.” And so, again, if you are looking at these provisions in the Bill of Rights and saying “if they mean anything” the right to instruct your representatives, well, okay I can see how gerrymandering interferes with your right to assemble to then instruct your representatives, it’s actually the other way around. It is your representatives designing a district so that they can stay in power. So this is an interesting and kind of more speculative argument. The free speech argument is, you know, voting is a form of expression, and I’m less sanguine about that as an argument. I don’t think voting is a form of expression. [Laughs] But nevertheless this opinion then gives multiple justifications for striking down the legislative districts and, again, remember, this is a State Trial court judge so this is going to go up to the intermediate appellate courts.
My supposition on this is, we have talked about bypass certiorari before. That is either the U.S. or State Supreme Court going down and getting a decision without going through the intermediate appellate process. That’s a very, very rare thing, it’s becoming more used at the Supreme Court level, which we’ve talked about, as this activist Supreme Court is trying to evade negative decisions in more liberal jurisdictions, but at the State level it’s a pretty rare thing to do. It would not surprise – so I can’t predict. I can’t say “I think it’s more likely than not” that this case will get bypassed all the way up the North Carolina State Supreme Court, but this is as good a case as any to think that that might happen in terms of a prediction. So I would not be surprised to see this decision instantly taken up by the New York State Supreme Court to weigh in. Because think about it, if you’re on the intermediate appellate court you know this question has not been squarely addressed by the State Supreme Court so whatever decision you write you’re gonna have to write it in a tentative way because the court above you might come to a different conclusion. So this would be a good case to go straight up to the State Supremes and we’ll see if it happens.
I do wanna also tell you – so we’ve talked about the jurisprudence. I wanna tell you the practical consequences as well. This is a State Trial court decision and the judge in this case denied a stay of the mandate pending appeal. So immediately the mandate has issued to go out and for the legislature to redraw these maps. As a consequence of that the court, again noting the bad faith by the Republicans. I’ve never seen this before! [Chuckles] They-
Thomas: They’re like, well “Hofsteller, he’s dead, so who do we go to to even do this?”
Andrew: Yeah, Hofeller, yeah.
Andrew: The court notes that they (quote) “retain jurisdiction to move the March 3, 2020 primary date-
Andrew: -in the event that the legislature is unable to comply with the requirements of the Court to redraw the district in a non-political gerrymandered way.”
Andrew: That’s a – you know, we talk about sternly worded letters, when the court says “fine, I’m gonna move your election” that’s more sternly worded than you usually get!
Andrew: So no injunction, on appeal the Republicans, the State legislature, they’re going to ask for a stay on appeal, but because they don’t have one they’re going to have to meet the same requirements as getting any kind of injunctive relief, right? Which involve showing a substantial likelihood of success on the merits. There is no way – like I don’t see how you can demonstrate a substantial likelihood of success on the merits of something that everybody agrees is an unresolved question. I don’t know how you write that brief that doesn’t lead to, you know, the Respondents writing a brief that says “look, we all know this question is unsettled, if it’s unsettled by definition you can’t prove that you’re substantially likely to prevail before the State Supreme Court.” And so I don’t think they’re going to get an injunction, and I think the North Carolina State legislative maps are going to be redrawn and they’re going to be redrawn in a way that opens it up in a way that will expand fairness, expand access for Democrats, make the State more representative of the population which is 51/49, 52/48 Republican. It is not a bright red State, this is not Idaho (I’m using Idaho intentionally there.)
Andrew: It’s an evenly splitter, just about evenly split State. And yet it is one of a dozen in which despite the makeup of the population gerrymandering has lead to an institutional advantage for Republicans. So, look, great opinion! Good result, and I think this could be the blueprint. As the judge notes, other States have previsions in their State Bills of Rights that track the free elections clause in North Carolina so I expect that Citizens for Responsibility and Ethics in Washington, I expect The Common Cause, that groups that oppose gerrymandering will bring similar lawsuits in similar States and we may see the activism kind of shift down to the State level. So good news, everybody!
Thomas: Yeah, okay, but that kind of goes against our “fight fire with fire” theory. So it’s like – I’m glad this is happening in a slightly Republican controlled State but for any Democrat controlled States let’s just gerrymander.
Andrew: [Laughs] Look, we still should, right?
Andrew: I’ve been clear on that. Those are the rules and I have been clear. I think we need to crash the system and different States may have different results but I would point out that if you have a State that is controlled top to bottom by Democrats then it absolutely makes sense to play by the political rules that the Supreme Court has established.
Thomas: Yup, there you go, you gotta do it.
Thomas: Has to be done. Alright it’s time for a brief tryst on Yodel Mountain.
Yodel Mountain – Don McGahn Testimony
Thomas: Alright we’re here. We’re slow dancing on Yodel Mountain, you and I. Just a brief song, one quick song. What are we talking about?
Andrew: Yeah, the U.S. District Court for the District of Columbia has set a date for the conclusion of briefing and oral arguments in the Congressional Oversight Committee’s Motion for Preliminary Injunction to require Don McGahn to testify before the House and that will be October 31. So we’ll continue – and again, you might go “gosh that’s forever off,” it’s seven weeks away because there’s briefing on both sides, you have to file your initial brief, the opposition, then your reply. And it is pretty rare to get – I practice almost exclusively in the federal courts and it’s pretty rare to get a hearing. Usually those courts decide pending motions on the papers, so there’s gonna be a hearing, there’s gonna be briefing and we will know on Halloween what the District Court for the District of Columbia says-
Andrew: -with respect to forcing McGahn to testify.
Thomas: Alright, well hopefully-
Andrew: Not a sternly worded letter!
Thomas: Will they do it in costume?
Andrew: Next Patreon Q&A I will tell my costume story!
Andrew: Not gonna do it on the main feed.
Thomas: Some patron remember that! ‘Cuz I won’t.
Yodel Mountain – Epstein
Thomas: You got a brief update on Epstein?
Thomas: People thought maybe something was gonna be Dershowitz but it’s not?
Andrew: Yeah, so this is – remember the 2nd Circuit issued a mandate, remanded back down to the Southern District of New York in the Giuffre v. Maxwell case, that is one of the pending civil lawsuits against Epstein, against Ghislaine Maxwell, against people who were affiliated with that entire disgusting enterprise. This had to do with unsealing of documents, and we posted the 14 parts that the 2nd Circuit unsealed on its own, and then there was the broader instruction to the District Court of “and look back through the rest of the documents and you should use our guidance and you should unseal everything that you don’t absolutely have to redact.” That process is ongoing. Two days ago lawyers representing an anonymous third party John Doe filed a letter with the Court saying “this will look really, really bad for our client if you release all these documents” and there has been a ton of speculation, right? Is this Alan Dershowitz is it anybody else? I want to be clear, this letter is on behalf of a non-party to the proceedings. Alan Dershowitz is a party to the proceedings now, he is an intervenor. So that’s not to say that the documents wont’ concern Dershowitz, that is not to say that I believe Dershowitz’s stories on this, which I find very non-credible for reasons that we don’t have to go into. I’m not trying to exonerate him, but I want to be clear that this is not – people who are speculating that this is Dershowitz? It’s not. The letter says “we represent John Doe, Doe is not and never has been a party in any judicial proceeding involving Ghislaine Maxwell or Virginia Giuffre or in any proceeding relating to Giuffre’s allegation that Jeffrey Epstein sexually abused her.” Alan Dershowitz is. So that narrows down from seven billion to six billion, nine hundred ninety nine – right? We can exclude twenty people.
Andrew: So feel free to speculate but that individual speculation, not correct.
Thomas: Darn. Oh well. Sometimes you have to pour cold water on all the lefty theories as well as the right wing ones.
Andrew: Yup. Yup.
Thomas: And for our Patron thanks, we wanted to do something that Andrew thought of that I can’t believe we didn’t think of sooner. So the Hall of Fame thanks takes so much longer because we have a lot of Hall of Fame patrons, we love doing it, there’s lots of jokes and all that. The new patrons is usually shorter because, you know, opposite reasons essentially, and we thought since the Friday episode is always longer because there’s so much we’re trying to squeeze in we thought it would be better to switheroo the patron thanks and do new patrons on Friday and Hall of Famers on Tuesday. I know it’s not gonna rhyme quite as much, but I think it’s a good idea. What do you think, Andrew?
Andrew: I love that idea.
Thomas: So that said, it’s time to thank our new patrons on patreon.com/law! Here we go.
Thomas: Alright well that was fun! I love that segment, that’s good times.
Andrew: Me too.
Thomas: Okay, it is time for me to fail the bar exam [Laughing] as usual! Alright, no, I’m gonna turn around. Ergh! I’m gonna concentrate! [Bluh bluh bluh] Okay, here we go! Lay it on me!
Andrew: Okay. Thomas, on May 1 an uncle mailed a letter to his adult nephew that stated-
Thomas: Naw, I already can’t get it. I’m out! No, I’m just kidding. [Laughs]
Andrew: “I’m thinking of selling my pickup truck which you’ve seen and ridden in.”
Andrew: “I would consider taking $7,000 for it.”
Thomas: Ooh, consideration.
Andrew: On May 3rd, the nephew mailed the following response: “I will buy your pickup for $7,000 cash.”
Andrew: The uncle received this letter on May 5th and on May 6th mailed a note that stated “it’s a deal.” On May 7th, before the nephew had received the letter of May 6th he phoned his uncle to report-
Thomas: Oh gosh.
Andrew: -that he no longer wanted to buy the pickup truck because his driver’s license had been suspended. Which of the following statements concerning this exchange is accurate? A) there was a contract as of May 3rd; B) there was a contract as of May 5th; C) there was a contract as of May 6th; or D) there is no contract.
Thomas: This is going to be particularly frustrating to get wrong for several reasons. One of which being that I specifically remember this being a part of the one law class I’ve taken in Business Law, because of course this is a very business law question. And I have – it’s been thirteen years, I think? I have no memory of what the actual answer was. So that sucks, because I’ve actually taken a class [Laughing] that had the answer to this question. Oh this is tough.
Andrew: So what you’re saying is this should count twice if you get it wrong.
Thomas: [Laughs] How dare you? I don’t need any help getting more wrong, Andrew, I really don’t. I’m doing okay on getting stuff wrong.
Andrew: [Laughs] I have great faith in you on this one.
Thomas: I – yeah. Let’s see, let’s puzzle through this. Can you phone in – okay, we’ll go through it. May 1st, I guess we can kinda go through the answers chronologically here, it’s pretty easy. May 3rd, what happened on May 3rd. On May 3rd the nephew mailed the response saying “I will buy your pickup for $7,000 cash.” Alright. I don’t think it could be May 3rd, I feel like – well, gosh. Okay. Because the first letter is “I’m thinking of selling my truck which you’ve seen and ridden, I would consider taking $7,000” it would be hard for me to believe that if you say, “well I think I’d take $7,000 and someone mails “I will buy for $7,000” that you’re locked in. So I’m gonna eliminate May 3rd. May 5th is when the uncle received the letter, which – well, I guess that’s kinda the same logic. Because if it’s not May 3rd and May 5th the uncle just received that letter – Oh yeah, on May 3rd is when the nephew just mailed the response, so that’s gonna be part of the question. Does it matter when you mail it, does the contract start when you mail it or when the other person receives the letter? Oh my gosh I almost remember this. [Chuckles] I remember there were some examples in the class of, like, they hadn’t received or they hadn’t opened it or it gets lost, I don’t know there’s different stuff. Anyway, so the uncle receives the letter on May 5th. And then on May 6th – so I still think it can’t be May 5th because that to me just doesn’t seem like enough. It doesn’t seem like enough of an anything. So if B were correct then all that has to happen for a contract is you write a letter saying “I’m thinking of selling my truck I’d consider taking this” and the nephew says “I will do that,” and then nothing and you receive that letter and that’s a contract? I feel like that’s not. I think there’s gotta be one more, it seems like. I’m just going based on what I find reasonable. And so on May 6th mails a note saying “it’s a deal.” On May 7th before the nephew had received the letter of May 6th he phoned his uncle to report that he no longer wanted to buy the pickup truck. [Sighs] I think… oh gosh this is so tough. I’m actually kinda leaning toward D, ‘cuz I don’t – D was there is no contract, because I think if you send a letter – gosh this is tough. You send a letter saying “yeah okay I’ll buy it for $7,000” and you haven’t heard back and you phone and say “hey never mind.” [Sighs] The rational person in me wants that to not be a contract. But I could also – the next best answer I think is C, so contract as of May 6th. That would be when the person has dated the letter saying “it’s a deal.” Now it really could be that one, because I seem to remember that maybe being something. Like if he’s already – it’s kinda like the stamps on it, the date and time is on it and he’s accepted it, but you haven’t opened it… oh this is tough. So it’s between C and D, I’m pretty firmly between C and D… and there is no contract… I don’t’ know I almost think – he hasn’t received the letter. I’m gonna go with D, there is no contract, because I think if you call before you’ve received an okay I think you should be able to rescind your offer and I bet it’s gonna be C because that would fit with what’s been happening [Laughs] to me? But I’m gonna go with D just ‘cuz I’ll continue stepping on that rake and having the handle fly up and hit me square in the face, but it looks like a really fun rake to step on every time.
Thomas: So I do it. Final answer, rake.
Thomas: Or D, sorry.
Andrew: Alright! And if you’d like to step on a rake 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 and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Wouldn’t it be nice if I turned around my fates, finally? But no, probably not. Alright, well thank you for listening, patrons keep an eye for those live show ticket links or whatever I’m trying to say, keep an eye out for that, it’ll be in your email, whatever your email for your Patreon is and everybody else look for that real soon after. Can’t wait, gonna be a lot of fun! The last live show was so fun, was it not Andrew? Wasn’t it just the greatest?
Andrew: Oh yeah, no it was amazing!
Thomas: It’ll be even better! We’ve learned, we can rebuild even better!
Andrew: This will be amazing-er! There’s not doubt in my mind.
Thomas: Amazinger! Alright, we will see you next episode, everybody!
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