Advisory Opinions - Electoral Count Act! Here We Go Again

Episode Date: February 1, 2022

On today’s episode, Sarah details yet another animal rescue because of course. Then David and Sarah dive into the Electoral Count Act and a mixed-up, messed-up Supreme Court case about pulling books from school libraries. And finally, can Sarah get David to talk about Rep. Madison Cawthorn?   Show Notes: -Sarah rescues a hawk -Wall Street Journal: “Congress Sowed the Seeds of Jan. 6 in 1887” -New York Times: “Book Ban Efforts Spread Across the U.S.” -Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And Sarah, do we need for you to tell your story before we even get into anything else in this podcast? Probably. I mean, at some point, we're taking like quarterly animal rescue stories. So maybe we need to change the name of the podcast or at least the description. I don't know. So apologies if this is not your cup of tea. So bottom line up front, you have a hawk in your house right now. I do. I have a hawk in a diaper box in my dining room. Okay. But of course you do. How, why? Okay. Let me set the stage a

little. So my best friend from college just moved back after, I think about 10 years in Singapore and she moved just across the Potomac river from me. So super pumped to go see her Scott. However, husband of the pod was furiously doing some client matter. And so we were running late. He was annoyed that I was annoyed. You know, that part of a marriage. Yes. Yeah. Been there, been there. Right. Cause he's annoyed cause he's working and like that should take precedence over like, you know, a social engagement that doesn't really have a set time. And I'm annoyed cause like I'm champing at the bit to see my friend. So we're in the car, uh, not, not speaking in like a bad way, but not speaking and Nate's in the cart uh not not speaking in like a bad way but not speaking and nate's in the back uh so uh

you got to go like up a two-lane highway and then down a two-lane highway and so we're going down after we cross the bridge and i look over and there's a dude carrying what appears to be a quite dead fox in the road. So a guy is in the road carrying a dead fox. Yeah, he's over on the just to the shoulder now heading towards I see his car with the flashers. And then I see I'm I will admit to you, David, I am on alert for these things, right? Like I have a spidey sense. Yeah. And so I saw something that looked

like a kind of log, but like, why would there be a log on the inside median? You know? So we drive by, it's obviously a Hawk. You should never be able to drive right by a Hawk. Uh, it should fly away. It shouldn't be on the ground anyway. It's like they're, you know, they swoop in, grab stuff and go. They're not, um, you know, they're not like vultures. And, um, so I pull over behind Mr. Dead Fox guy. He's already got his flashers on, right? Scott at this point is like, say what now? So just to be clear, you were annoyed because you were in such a hurry and now we've pulled over. Why is the car pulled over? And I just said like Hawk. And he was, he just went back to his phone. Like there is a client who has been billed significant time during this whole episode. Scott never leaves the car.

Always be billing. Always, always be billing. Okay. Okay. So I get out and Mr. Dead Fox guy thinks I've come to see him and probably inquire as to what's going on. But I am not. And I do not. And I'm like, hey, there, I'm here for the hawk. And he goes, the hawk. And I was like, yeah. And he goes, how did I miss the hawk? And he's like, do you want help? And I was like, honestly, yeah, I'd love some help. He has big hockey gloves on. I got nothing. Right. I'm just like going, I'm not even like wearing shoes. So, um, wait, you're running barefoot on the side of the road. I've got, okay. I'm not in rescue mode. Okay. So you should always be in rescue mode. Have you learned nothing? So guy who I just met, who is carrying a dead fox and wearing hockey gloves. And I

now go back, uh, you know, a hundred yards to where the Hawk is. And in the meantime, there's cars going 60, 70 miles an hour on this two lane little highway. And so I've got to make sure that, you know, they're not in that inside lane and there's not a lot of traffic. There is at no point two cars next to each other, for instance. And so I go in the inside lane and start flagging cars to go into the slow lane. By the way, when there's not two cars in both lanes, there shouldn't be any cars in the fast lane. And yet here we are. Several of these cars immediately move over. Several of the cars do not and continue to persist in the fast lane as if we're going to play chicken and they're really going to hit me. And I'm like, you're not. So you can be as annoyed as you want,

but get over. Um, so you, okay. You're doing a little road rage risking there a little bit. Yeah. Okay. So now I'm now to the Hawk. Um, and now there is a little bit of a traffic buildup, I will acknowledge, in part because though this guy in a pickup truck seems deeply annoyed or like concerned that the dude with the hockey gloves is maybe trying to kill me or something. So he rolls down his window and is like, what are y'all doing? And I was like, Hawk. And he goes, oh, okay. And drives off. And I was like, Hawk. And he goes, oh, okay. And drives off. Okay. So now, uh, the key is right to ascertain what's going on. Like what's the injury. And like the chances are, if you see a Hawk on the side of the road, the injury is a head injury. The Hawk's been hit, you know, it was flying too low. The car hits it. It then it's up on the side of the road. Um, but, uh,

I'm looking, you know, no wing is hanging down. There is like a little bit of blood coming out of a nostril, another sign of a head injury, no doubt. And now it's like, okay, how am I going to catch this thing? So I have a blanket that I do carry in my car for such occasions, David. And I've got hockey glove guy. i don't know how hard this is going to be and there are cars you know coming both directions at 70 miles an hour but thankfully for both me and the hawk very cooperative little guy um he he showed you know he floats up for just a second shows me both of his wings are working fine but is immediately back on the ground throw the blanket over don't even need the hockey gloves you know what i I'm talking about? Right? Like the goalie gloves, like huge.

Yeah. Yeah. Um, like could Talon still go through those? Yeah. But you're going to, it's going to blunt the force for sure. Better than nothing. Um, so now I've got a Hawk in a blanket. He's got a dead Fox in the back of a minivan. And now I do have some questions. So I'm like, we're walking back to the car, do have some questions. So I'm like, we're walking back to the car another couple hundred yards. And I'm like, so what's with the fox? Now that we've spent some real quality time together, he prevented me from getting hit by a car, you know, the usual stuff that you bond with your community over. And he says, and I don't know what to expect at this point. I guess I expected because you always project your own, you know, things onto people that he was going to say, I thought the Fox was

alive or maybe the Fox was slightly alive. I don't know, but the Fox looked real dead. Like it was stiff, you know? And he said, I'm an elementary school teacher. And I was like, nope, that you're going to need more than that. And he's like, I bring animals to my classroom so my students and I can learn about them. And I've been really looking for a fox. And I said, wow, can my son be in your elementary school? That's awesome. How cool is that? So he's bringing, he brings roadkill back to his class so they can like see these animals up close that they would never get to see in the wild that close. And because it's roadkill,

you've got a pretty decent chance that the animal is not actually diseased. Like at least that's not what it died of. So pretty cool. Yeah. So there we drove off him with a fox, me with a hawk. Yeah, so there we drove off, him with a fox, me with a hawk. So how much does a hawk weigh? Oh, very little. I was going to say, like, they have a little bit of mass to them. They appear to have mass, but you can't imagine them weighing much at all. No, no.

I mean, boy, if this guy weighs more than a pound or two, I mean, they're light. I mean, they've got to, you know, they've got to not only fly, they've got to maneuver really well in the air. I will say, David, just as a disclaimer to this whole story, I have been around and handling raptors since I was four, and I wouldn't necessarily recommend that everyone else go out

and grab their nearest hawk. Yeah. There's the talons you need to worry about. there's the talons you need to worry about. There's obviously the beak you need to worry about. Uh, also, you know, this story, it appears we'll have a happy ending, but against all odds, generally speaking, when these guys have head injuries, either they kind of like brush it off and can fly or the head injury is bad enough that their head, their brain swells just like a human's, right? And so that will kill them in a few hours.

And so you're going to take this bird home at much risk to yourself and the bird is going to pass away overnight usually. But happy ending to this story. I can't believe it, but this guy is alert and he's ready to go. So I am going to take him out to a rehab facility that's about an hour and a half away. So that's what my afternoon is going to be like after this podcast.

They also have some medication they can give him that should reduce the brain swelling. And fingers crossed, but this guy will be back eating little varmints here real soon. be back eating little little varmints here real soon that's that's fantastic now i have to i have to say that amongst the various animal rescue stories it has a little less drama there's a guy with a dead fox and hockey gloves david but but no see when it was goatee jinx and goateaty Jinx had his life on the line. I had to almost kill Goaty Jinx to save Goaty Jinx. So it was, and then also you didn't dive into any pond water. That's true. Potentially crocodile or alligator infested pond water was not involved this time, although there were the cars zipping by. Yeah, it was moderate risk in life, not sort of severe risk. Though again, cars zipping by at 70 miles an hour.

Dude who I do not know with hockey gloves and dead fox is protecting me, husband of the pod, billing that time. Billing, which I, you know, you just got to admire it, really. You just, I mean, somebody's got to pay for the car and the diaper box and the blanket, you know? I mean, come on. That's right.

So tip, if you are, if you do rescue an animal, what you want to do is get a box that is as close to the size as possible, old towels, blanket, anything to immobilize them and keep them warm overnight until you can get to a rescue facility the next morning. Do not, do not try to guess the diet, try to give water to, especially a bird. They've got those, you know, their, their little nostrils on the top of their beaks and stuff. Hawks, most birds do not get water from like your cups. They get water from

their food. So it, you know, no need, no need. They're either going to make it your cups. They get water from their food. So, you know, no need. Interesting. No need. They're either going to make it or not. They can certainly make it overnight without food or water. So just get them warm, get them quiet, get them dark. Hope for the best. Wow. That is good, handy advice for our listeners. No question. All right. Shall we move on? So we're going to talk today about the Electoral Count Act, and we're going to talk about library book banning and a Supreme Court case that is pretty obscure. Nobody talks about it much. I mean, our library and listeners know this book. I mean, know this case, but almost nobody else does. But so public school library book ban efforts, and what does the Supreme Court

say about it? And the Supreme Court has said stuff that is very interesting. And then maybe if we still have time, we're going to talk a little Madison Cawthorn. And frankly, it has to be pretty compelling. We have to have time and it has to be pretty compelling for me to want to talk about Madison Cawthorn. And it has to be as little about Madison Cawthorn as possible and it will meet all of those requirements. Okay, good. All right. All right. So let's intro the Electoral Count Act discussion with the following statement by Donald J. Trump, 45th President of the United States of America. If the Vice President, open paren, Mike Pence, close paren, had, quote, absolutely no right, unquote, to change the presidential election

results in the Senate, despite fraud and many other irregularities, how come the Democrats and rhino politicians like wacky Susan Collins are desperately trying to pass legislation that will not allow the vice president to change the results of the election? Actually, what they are saying is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn't exercise that power. He could have overturned the election. Okay, that sound you heard was a whole bunch of Trump apologetics sort of being thrown out the window, that he didn't actually want to overturn the election. He just wanted a rigorous investigation of fraud.

But that's less important than the Electoral Count Act reform. But it makes it much more immediately relevant. So Sarah, where are we on Electoral Count Act reform? What is likely to happen? And then let's talk about some pitfalls, shall we? I would love to. So here's where we know we are right now. There were 16 senators, eight Democrats, eight Republicans who met over Zoom last week to chit chat about their sort of shared concerns over the Electoral Count Act. David, this is something you and I have been like reform the Electoral Count Act and us and a lot of other egghead nerds are all for this because, you know, you and I spent a lot of time on it a year ago and it was at points indecipherable and at other points contradictory. One sentence has 275 words, and I counted 19 commas and two semicolons.

And honestly, I don't know whether that was too many or not enough, given the 275 words. It's a 275-word sentence, to be clear, in a single 809-word paragraph. So to put that in a context. It's supposed to resolve elections. Yes. So to put that in context, most newspaper op-eds are around 750 to 800 words. So this is an op-ed- paragraph with one 275 word sentence. And then you forgot part of it is it's not just indecipherable in some places and contradictory

in some places, outright dumb in other places. That's true. There's the dumb part. Yeah, but I'm sorry, sorry, continue. Well, so you and I have been such proponents of it that I wanted to provide some of the other side. And there's two arguments on the other side. One is that the Electoral Count Act is unconstitutional. So electoral count reform efforts, by and large, probably going to be unconstitutional. I think that's an interesting argument. I want to explore it a little. And the second is it's going to be really hard to reform the Ele count act in a way that actually prevents the thing we're trying to prevent. So let's start with the first one.

Friend of the pod, former judge Michael Ludig. I mean, I don't know how much I talked about him before this podcast, but like leading intellectual judicial mind on the right, he was sort of the like, will it be him? Will it be John Roberts for that spot that opened up on the court? Obviously, John Roberts is on the court and not Michael Ludig. He then goes on to have a stellar and lucrative, I would assume, career in the private sector after leaving the bench. So he writes a Wall Street Journal op-ed on the Electoral Count Act is unconstitutional side. I want to be very clear about Michael Ludig's politics in all this. He is not saying that Mike Pence, therefore, could overturn the election. Quite the opposite. If the Electoral Count Act is unconstitutional, it's not that it does give Mike Pence power.

It has no bearing on the conversation. So I want to explain his point here and read some from this op-ed so we can chit chat about this part of not being able to reform the Electoral Count Act. In fact, after much debate, he writes, the framers deliberately chose to deny Congress any substantive role in selecting the president and vice president, except in the rare case that no candidate has an electoral college majority. This was for compelling separation of powers reasons. As Gouverneur Morris explained at the time, if the executive be chosen by the national legislature, he will not be independent of it. And if not independent, usurpation and tyranny on the part of the legislature will be the consequence. Honestly, I wish we had usurpation and tyranny on the part of the legislature will be the consequence.

Honestly, I wish we had usurpation or tyranny efforts coming out of Congress at this point. That would be better than what we do have, apathy and pointlessness. Okay, continuing. Thus, Congress's prescribed role as audience during the process of opening and counting the electoral votes is ministerial. With electoral college votes coming from all the states, the counting had to be performed by a federal government entity, and both the executive and judicial branches had potential conflicts of interest. That Congress has no constitutional, quote, skin in the game of presidential selection made it perfectly positioned for this role of official observer. Who then does have the power to settle disputes over electoral slates, such as those in 1876 and 2020? Whether electors are validly chosen

is quintessentially a legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law, as the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes. He wraps up with Congress should promptly repeal the Electoral Vote Counting Act. So David, oh, and I'm sorry, he co-wrote this as well with another leading light lawyer, David Rivkin. Sorry, sorry, David, did not mean to give you short shrift there. He is a appellate lawyer in D.C. and was in the White House Counsel's Office, Justice Department for Reagan and H.W.,

also very famous. I just totally missed his name on there. So co-authored by two really, really smart conservative lawyers saying, don't reform it, repeal it because the thing is unconstitutional anyway. David, your reaction. So reaction number one, this is a non-trivial, non-frivolous argument. Let's be really clear about that. This is the question of whether or not Congress should resolve disputes after the election of 1876, which with the election of 1876 is where you had this issue arise. And then sort of the question of how do we prevent that? How do we handle anything like that in the future has been something that kind of people have been talking about on and off for a while, but it hadn't been really urgent. And so the way I think of this argument is, it is, I would put it this way, I still believe that because there has been a,

there is at least a role for the president of the Senate constitutionally in this process, that there is going to be that there it is likely that the Supreme Court would defer to rules created by Congress for this purpose up to a point, up to a point. So let me put it this way. I think that there's going to be some discretion granted to Congress in counting of electoral votes, but it is going to be narrow, that you can't use the Electoral Count Act as a means of sneaking in all kinds of oversight into the way states decide the composition of their electors. So the honest answer to this, Sarah, if you want the total honest answer, I don't know how this would come out at the Supreme Court. And so here's what I would like. I would like for the Electoral Count Act to be reformed, for it to be promptly and expeditiously challenged in that newly formed state, and that the Supreme Court resolve the issue before 2024

in the regular and ordinary course of business, rather than on an emergency basis with an emergency challenge to the Electoral act to being launched in the, in between the end of an election in November of 2024 and the certification of the vote on January 6th. So that's, that's what I would like to see because I have to say, honestly, I don't know. I don't know if he's right. So I would like the Hawk in the diaper bag in my dining room to start chit-chatting with me about what it's like to be a hawk.

But some things are difficult to imagine, David. So who would have standing for this non-emergency basis lawsuit that happens before the election and can just go in the regular course? Who's injured when the Electoral Count Act passes? Oh, a state legislature. A state legislature. Could seek like injunctive relief. Well, it's, you know, the electors are determined. The manner of choosing the electors is determined by the state legislature. If the Electoral Count Act has... But they don't have an injury until Congress actually...

Like there is some real threat of Congress rejecting their slate. Well, it depends on what the Electoral Count Act reform says. Fair. Because some of the proposals have said that the Electoral Count Act reform should include provisions holding that legislators have essentially zero discretion once votes stop being discretion once the vote is counted, once the popular vote is counted in the state, that state legislatures will have

zero discretion, which to me, right there you've got a concrete actionable dispute over the power of the state legislature to determine electors. So yes. Pre-enforcement review is being a little frowned upon these days at the Supreme Court, it looks like. But, okay, I like that. Come on, guys. Settle this thing. Let's explain a little bit about the difference between where the Ludwig Rivkin unconstitutionality is, right?

The electoral count is unconstitutional because there is no role for Congress and it's only for the courts. Eastman, John Eastman's memo was the electoral count act is unconstitutional and therefore the president of the Senate, the vice president, has pure, exclusive and plenary authority over how to count votes. And then David, they're the, no, the electoral count act is constitutional. I would say that the best argument for that is something to the effect of, look, you say it's ministerial and that's fine, but you still have to have, there still have to count some votes, even if the court is the one resolving it. Congress has to decide if there's two slates, which one to pick. And set aside David's pre-enforcement review challenge, which I'm pretty side-eyed toward,

but we're going to let it slide on this law review exam. Assume that it happens after the election. Congress needs to pick a slate. They can't just throw up their hands and say, well, there's two. Oh, well, I guess we're not counting this time and it's up to the courts. That I think is part of the problem with the, you can't have any electoral count act type thing. Now, this version of the electoral count act may in fact be unconstitutional and versions of reform may be unconstitutional. But in order to even perform the ministerial function, you have to have some guidelines or Congress, at least to me, can set some guidelines as to what they count in the event of a dispute. Now, here's the interesting question to me. So I understand your side eye on standing. I do think that if the Electoral Count Act reform, state legislature is the best.

In my mind, if it's not a state legislature, pre-enforcement gets really, really, really, really, really tough. But then here's the other thing. The fact that you could have no pre-enforcement review may in a weird way end up being the practical, as a practical matter, a constitutional, a shield for the constitutionality of the Electoral Count Act, because what's going to happen is someone who finally does have standing, say a candidate, has decided to challenge the Electoral Count Act, has assembled alternate slates of electors. So they're now firing their way to the Supreme Court, trying to get an injunction, which has what? Equitable concerns attached to it, correct? And so then you're on the cusp of January 6th with no alternative

means necessarily of counting or the Supreme Court taking upon itself to resolving the full shotgun blast allegations of whatever pretexts have been used to create the competing slates of electors? Or does the court say, you know, in the balance of equities here, Congress has laid out a process. We're going to defer to the process. I just wonder if the very existence of the process itself combined with if standing is not really available prior to pre-enforcement and the court not wanting to detonate a presidential election in January after the election would mean that as a practical matter, the Electoral Count Act within reason is going to be pretty safe. count act within reason is going to be pretty safe. All right. So let's move on to the next problem, which is let's assume that some version of an electoral count act reform act is constitutional. What are the, what is the problem we're trying to prevent and how can you prevent it without in fact increasing another problem like an actual game of whack-a-mole?

So the 2020 problem was the concern that members of the House and potentially the Senate would vote to recognize someone as president who had not won the electoral college. Let's just put it that simply. Yeah. However, the New York Times had a nice opinion piece by Greg Sargent, one of their columnists, that lays out a different scenario. Imagine that former Senator David Perdue becomes Georgia governor after winning a GOP primary against Brian Kemp, who is under fire for not overturning the 2020 results. Kevin McCarthy is controlling the House on January 6, 2025. So, right, sorry, Perdue would become governor in 2023. McCarthy is House speaker.

If a Democrat won the state by a slim margin and the election came down to it, Perdue could send a rogue slate of electors based on a fake pretext of election fraud, and the GOP-controlled House could simply count those electors based on a fake pretext of election fraud, and the GOP controlled House could simply count those electors. A Democratic Senate might object, but under the ECA, both chambers must object to a slate of electors to invalidate it so it would stand. Now, of course, he mentions the fact that courts could intervene, but I think this raises an interesting point. It is assumed based on 2020 that the problem that you're trying to fix is raising the bar for Congress to be able to object to electors. But what if the problem originates

actually in the state and there is only one set of electors, but they are clearly fraudulent in some way, then you want to lower the bar for Congress to object to the electors and raise the bar somehow for the states to send in. But again, it's not two slates of electors here. We have one slate of electors. It would be a huge problem under this scenario. And by the way, that's assuming a Democratic Senate. That's a little bit of wishful thinking at this point.

I think you could easily have a Republican Senate, Republican House, and David Perdue could be governor. Again, I just want to build out the nightmare scenario. Not that I'm saying that David Perdue suddenly is sending in a fake slate of electors. I'm not impugning his character that way. But we want to build out our hypothetical to be the most helpful in thinking about how you would start drafting a law to prevent problems. Hard to do if it's a governor who wants to, it comes down to one state. The governor wants to send in a fraudulent slate of electors. The same party controls the House and the Senate,

and they both also want that person to be elected president, and nobody is, well, let me rephrase. I was going to say nobody's honor bound to actually pick the correct president, but no, let's assume they actually believe it. They believe there was rampant election fraud in Georgia and that therefore the results that showed up in the popular vote are not accurate and it is appropriate to throw out 50,000 votes, let's say. Yeah. Here we begin to get into a problem of if the system, if the individuals tasked with upholding that system of elections are just flat out determined to disregard the results,

your options, your legislative options tend to narrow. Now, there's some judicial options there. There's some judicial options. So in theory, if a David Perdue or a new secretary of state, let's say the new secretary of state, Raffensperger's out and the new secretary of state's there. Well, no longer has a role in doing it because remember that new law that Georgia passed for the secretary of state.

So it's now picked by the state legislature. But yes, the person picked by the state legislature now. Yeah. So the state legislature that now that, you know, let's say Biden is up 20,000. Trump initiates a challenge, alleges that some combination of 40,000 people who are dead and or out of state and or too young voted, completely specious, but a majority of the state legislature believes it changes the outcome of the election. The problem you have, and there are proposals for the Electoral Count Act that where they're trying, you can tell they're trying to do something about, well, wait a minute, the legislature, once the election happens, can't change the law, can't create legal changes that would adjust the outcome of the case, but that's not really what we're talking about, right? Because what we're talking about is if the legislature has reserved for itself the discretion, for example, to rule out of bounds X number of votes, then it wouldn't necessarily really be changing the method of

determining the election after the election. It would just be applying the counting method it agreed on previously, which is one of the reasons why we've been saying time and time again, it's the vote counters that matter. It's not the vote casting that's the problem, it's the vote counting. And at some level, Sarah, it's just hard to conceive of a statute that takes care of all these possible problems. So I absolutely see where you're coming from. However, the bottom line is, at the very least, the threshold for challenging should be raised. The threshold for challenging these votes, because right now it's one senator, one congressman can bring chaos. And at the very least, raise that threshold. If you do nothing else,

if you do nothing else, raise that threshold to a really meaningful number. So I think that the way to think about it is actually you're trying to make a process that is as quick as possible, efficient as possible coming after the election and as clear as possible so that when it moves to the courts, they have it quickly and they're not having to deal with whether the Electoral Count Act was followed, but in fact, whether what happened at the state level or whatever else was constitutional in sort of a one person, one vote 14th amendment way. So in that sense, it almost doesn't matter what the electoral count act says, just make it clear, make it efficient. So for instance, raise it to one third of both bodies have to join with an objection. And if

there are two competing slates sent in, the one signed by the governor of the state is the one that controls. And if that, I mean, that's it, like make it so simple so that competing slates are pretty pointless. Um, and it just moves super quickly. Not because I think that solves the whack-a-mole. It will not. And it will not solve the worst case scenarios, David, to your point, because nothing will, because that's a, a breakdown of the system itself, and one law cannot fix a broken system. But you want to move it over to the courts and not deal with the Electoral Count Act, basically. Yes, you do. And this is just a basic rule of drafting a statute. You do not want to draft a statute so poorly that it's a playpen for bad faith actors. Yeah, clearly. I mean, that's part of my beef

with like the anti-CRT, some of the anti-CRT laws. They're just so poorly drafted. They're just playpens for bad faith actors. And that's what the Electoral Count Act is. It is deeply problematic in that it, in the sense that, no, it's a very bad faith reading that says that Pence can just overturn the results of the election. But even a good faith reading provides for a lot of mischief, as we've seen. Yeah, to make that process of one-third objects in the House, one-third objects in the Senate, and then we need a majority vote to recognize the slate signed by the governor. I don't know. And I don't care. Like just like there shouldn't even be that much problem if it's if there's competing slates, the one signed by the governor. Again,

guys, obviously, I'm not saying that solves the problem because you could have a bad governor or a mistaken governor or whatever else. but you want to have a default. You don't want to be sitting there like, well, if they really believe it shouldn't be the governor's one, then we do this. And if it's raining on Tuesday, then we do this. Nope. Just get it into the court. So in that sense, I agree with Ludig that, and I think you can make a constitutional electoral count act that simply sets out the rules for the ministerial performance rather than making it non-ministerial and allowing Congress some discretion in it. David, it's one third of both bodies objects and the election is sent to the Supreme Court directly. That would be a solution to it, for instance, and again, would still be ministerial.

Yeah. No, I agree with you. I absolutely agree with you. And, you know, the other thing that's sort of back there in the hovering in the background, and it's something that I've written about at length, is that there, if you're talking about the full-on bad faith actors that are going to, or we're just tossing votes out, we're just tossing votes out, there's already federal civil rights, criminal federal civil rights laws that come into play there that already have precedent for criminal prosecutions of people when they just toss votes or refuse to count votes. I mean, so the system has backstops to it. It does. So we're not simply saying if you have a bad faith governor, it's all- Yeah, shrug.

Yeah, shrug. Oh, man. Well, those Georgia guys, they look what they did. Oops. No, there there's there are backstops. But the Electoral Count Act is was it way too ambiguous, way too ambiguous. Simplicity, even simplicity alone, as you said, Sarah, is a would be a gift to the republic. Even simplicity alone, as you said, Sarah, would be a gift to the Republic. Well, let's see what they come up with. And we'll read it with enthusiasm. And maybe it will be shorter than the length of a book. And speaking of books, wait, was that a good segue? Did I do it right? That's perfect.

That's fantastic. That is fantastic. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app

and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. So we got some issues now with parents and actually people from different sides of the

spectrum on occasion coming in and wanting to, guess what, take books out of libraries. A tale as old as time, really. A tale as old as time. Now, what we're going to talk about is, and you'll see why for a minute, you're going to see why what we're talking about is removing books from public school libraries. It's a different issue from removing a book from public school curriculum, like what's in the eighth grade classroom, say. So that was what was going on in McMinn County, Tennessee, where the board voted to remove a graphic novel called Mouse from an eighth grade module on the Holocaust because it had

mouse nudity and curse words, which public school eighth graders have no doubt never heard before, which is part of the thing that makes this. So David, it's interesting. I had never actually physically like flip through a copy of this book, but right after, uh, the Hawk and I met each other and the Hawk was in my back, uh, the back of my car for those curious what you do at that point, you still go over to your friend's house who just came back from Singapore, say hi for 15 minutes and then go home and warm up the Hawk. Um, so I was looking at the bookshelf of this house that they're renting and they're right in front of my face was mouse. Um, it's a graphic novel about the Holocaust and yeah, for those who have never seen a graphic novel before, I have no idea why anyone would read this.

And so I would like to ban it from the eighth grade library because they should be reading books with words. But the Walking Dead graphic novels, pretty, pretty great. Don't care. Okay. Okay. Yeah. I am not a fan of graphic novels and would like there to be, would like to encourage kids, I guess, to read fewer of them because we have a lot of great novels and the purpose is kind of to get you into our language, so to speak. And I'm not sure a graphic novel is the best way to do that, But this graphic novel did have some drawings of nudity and occasional curse words. But again, worth mentioning, it's about the Holocaust. So honestly, even the heaviest curse words can't do justice to what I would be saying. Yeah, it was Yair Rosenberg from The Atlantic who said, if only the victims of the Holocaust could have chosen a more family friendly way to face mass extermination.

Yeah. So this is but this is this discussion is not the mouse discussion because the mouse discussion is a curricular decision from a curricular module in the eighth grade. I think the decision was beyond ludicrous with a capital B and a capital L, but let's talk libraries. Let's talk libraries. I have talked to people. There are moves in my own county to take some books out of libraries. Basically, if you see anything that's happening sort of around America that involves really angry people on the right, it's happening right down the road from where I am. So people are trying to get rid of books in local libraries. A New York Times story in Wyoming, a county prosecutor's office considered charges against library employees for stocking books like Sex is a Funny Word and This Book is Gay. That's such a great name for a book.

This Book is Gay. The American Library Association said in a preliminary report that it has received an unprecedented 330 reports of book challenges, each of which can include multiple books last fall. So that's a lot. So, you know, 330, probably some undercounting going on because not everybody reports everything to the American Library Association. But it turns out, you know, we've talked a bit about this whole concept of

what is the level, what, to what extent does a school control curriculum, public school, K through 12 public school. And the answer is two, it has an enormous amount of control over curriculum constitutionally. I'm not going to say it's not unlimited. So for example, there's establishment, there's cases involving establishment clause violations when you ban the teaching of evolution. There's a case out of Nebraska where the legislature tried to ban There's a case out of Nebraska where the legislature tried to ban teaching of a foreign language for both public and private institutions. So there's not absolute total control over curriculum, but there's a lot of control. Just make no mistake. So does that extend to the same extent to control over the content of a public school library?

Is a public school library considered to be part of the curriculum? And I had forgotten about this case, Sarah, to my chagrin. I had forgotten about Board of Education, Island Trees, Union Free School District number 26 versus PICO by PICO, or we'll just call it Board of Education v. PICO. And I had forgotten about the PICO case. And the PICO case is on freaking point here. It is a case that arises out of an attempt to ban a series of books from, so I'll just begin here. In September 1975, petitioners, Ahrens, Martin Hughes, attended

a conference sponsored by Parents of New York United, a politically conservative organization of parents concerned about education legislation in the state of New York. At the conference, these petitioners obtained lists of books described by Ahrens as objectionable. Oh, great. Go to a conference, get the list of books to ban. And as improper fare for school students, it was later determined that the high school library contained nine of the listed books. Another listed book was in the junior high school library. So what were the books, Sarah? The books were Slaughterhouse-Five by Kurt Vonnegut Jr. What? Yep. Yep. The Naked Ape by Desmond Morris. Down These Mean Streets by Perry Thomas. Best Short Stories of Negro Writers edited by Langston Hughes. Go Ask Alice of Anonymous Authorship, Laughing Boy by Oliver Lafarge, Black Boy by Richard Wright,

A Hero Ain't Nothin' But a Sandwich by Alice Childress, and Soul on Ice by Eldridge Cleaver. So these books were deemed to be un-American. They were deemed to be anti-Christian and anti-Semitic. Books were removed from the library. It's a complicated case. So after lots of procedures, some were removed, some were retained, some they made no decision on. But to make a long story short, this gets to the Supreme Court in an opinion that's just split all over the place. But the plurality opinion here essentially says this, look, you have control over your library, but not like you have control over your curriculum. And so there's going to be a greater level of judicial scrutiny over decisions to ban books

from the library. And here's from the syllabus, which is one of the, it's just a nice little summary of it from the syllabus of the is one of the, it's just a nice little summary of it from the syllabus of the case. Petitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political matter. Whether petitioners' removal of books from the library is denied respondents or First Amendment rights depends on the motivation behind petitioners' actions, Sarah. Local school boards may not remove books from libraries simply because they dislike the ideas in those books and seek their removal to, quote, prescribe what shall be orthodox in politics, nationalism, religion, or matters of opinion. If such an

intention was the decisive factor in petitioner's decision, then petitioners have exercised their discretion in violation of the Constitution. So the way this essentially works is the court, the plurality opinion here, held that I as a student possess a certain constitutional right to knowledge. In other words, I have a right to receive information. And that the school library cannot violate that right by prescribing what is orthodox by, in essence, banning one set of ideas and only stalking another set of ideas. And the examples they used were pretty extreme, like if you had a Republican, say a Republican school board and they ban all Democratic authors, or you had a white school board and they banned all black authors. But under the facts of this

case, there was just, there was enough evidence that there was a desire to ban ideas that they remanded it for a factual determination. So that's the plurality opinion the all of the opinions are pretty interesting to read and we don't need to go through them all but essentially what the supreme court was saying is yeah you're going to have discretion but if we hear that you don't there are ideas as opposed to say a nude image or extreme profanity but ideas that you don't want people to be exposed to, that's violating the First Amendment right of the student, of the student. And I just thought that was a fascinating case that we have never talked about in advisory opinions. Yeah, I have a feeling I can explain a little bit about why we haven't talked about it. Because there is no way

in God's green earth that this case comes out anywhere close to the way it came out in 1982. This thing is a muddled mess. So for instance, they draw a distinction. This is Berger writing for the plurality. Sorry, not Berger, Brennan. Brennan writing for the plurality. Sorry, not Berger. Brennan. Brennan writing for the plurality. Oh, fun footnote, by the way. Brennan is the only justice in the last 50 years to come directly from a state Supreme Court to the U.S. Supreme Court, something we have said would be good to happen more often. However, in this case, Souter went to the First Circuit in between. He was on the New Hampshire Supreme Court, then First Circuit, then U.S. Supreme Court. O'Connor was on the Intermediate Court

in Arizona and not the Arizona Supreme Court. So she did come. I know better than to challenge your assertion of judicial trivia. I shouldn't have even said, I shouldn't have opened my mouth. The old judicial trivia. I shouldn't have even said, I shouldn't have opened my mouth. Okay. So Brennan writing for the plurality makes a distinction between the acquisition of books and removing books.

What? That's not a good distinction. That's a very difficult distinction for me to see legally, for instance. Another way that you may know that this case wouldn't turn out the same way is just who's in the plurality versus who's in concurrence and dissent. Plurality, Brennan, Marshall, Stevens, Blackmun, like we're very much still in the living constitution, sort of the nine platonic guardians idea of the Supreme Court. And then in dissent, well, interestingly, concurrence in judgment only by white, who now are transitioning from platonic guardianship to current having some judicial philosophy. Dissent, Berger, Powell, Rehnquist, O'Connor.

Yep. That's a pretty stark divide in who's on which side. So in the dissent, you will not be surprised to hear they're like, what? As Chief Justice Berger wrote in dissent, were this to become the law, this court would become perilously close to becoming a super censor of school board library decisions. Noting that there is no law or rule of this court that has ever recognized a student's right to receive information and ideas. No such right has ever been recognized, he writes. Right, because David, look, the acquisition and removal thing, I don't see a legal distinction between, except if you want to go digging into motivations, which is fraught. And then if you accept that, well, then you've got a problem

because, okay, well, you're not teaching this idea in the classroom or you've removed this idea from the curriculum. Think of US history and set aside, by the way, CRT, we're accumulating quite a bit of history, literally, as we get older as a country. So as we add things like the Cold War, we are going to have to take away things. And so you're removing an idea from history. I'm sure people will have objections to that. Like, no, no, no, no, no. And this you're removing an idea from history. I'm sure people will have objections to that. Like, no, no, no, no, no. And this gets to the idea of not having nine platonic guardians, but instead having judicial humility to not wade into every decision you disagree with. And David, I so, so strongly disagree with the idea of removing any books from the school library.

At the same time, who gets to make the decision? Clearly, that should be the school board. Second, I had a public library card. I did not, I never once set foot into my school library. And when I was 15, I was reading She's Come Undone by Wally Lamb. And boy, does that book have it all. Obviously. Boy, does that book have it all. It has lesbian sex, abortion, divorce, obviously premarital sex, some stalking, a suicide attempt. It's dark. Some fat shaming for sure. Maybe some eating disorder-y stuff.

My parents didn't know I was reading it, don't know I read it. And you know what? I still. They do now. Well, my dad's about to find out, I guess reading it, don't know I read it. And you know what? I still do now. Well, my dad's about to find out, I guess. Sorry, dad. So like it is okay for students to be exposed even at a relatively young age to books that are challenging in my view. And if as a parent, you're not comfortable with that, then take a stronger hand in what you see your kids reading. But that's what libraries are about. And it honestly is going to make them more curious

learners 95% of the time to not just have to read, you know, Grapes of Wrath and Huck Finn. Well, Huck Finn's good. Billy Budd. Oh, I thought Billy Budd was a terrible, terrible book. And so I basically just started assigning myself my own reading. So I read Dave Eggers and David Foster Wallace and Faulkner, very little of which I understood, to be honest. But that's the fun of it, right? Because I was getting to choose sort of unorthodox books and didn't like Billy Budd.

It's a good thing. Well, you know, so I agree with you completely about the opinion. The opinion is written in such a way that you, it just, what leaps off the page is we really, really, really disagree with the school board here. But at the same time, we also know that school boards really tend to want to make this decision. So we're just going to send this, we're just going to articulate some broad positions, send this back. Now, the prediction of the dissent that all of a sudden the courts would become, you know, the school library, become school librarians didn't really pan out. And I think the reason is- Because this wasn't a majority opinion. This isn't the law.

Right. Well, and also because actually one of the things that ends up happening when you have waves of book removal, waves of book removal attempts, people don't tend to like it too much. They tend to come and go, in other words. So they tend to be kind of self-limiting because the book removal process tends to degenerate into absurdity often at a pretty high rate of speed. And so there's some self-limiting now. Will that self-limiting continue to hold now in our dysfunctional political system? I tend to hope so. I don't tend to assume so. But what I'm interested in, and less than PICO, and I'm less interested in PICO, which I

completely agree with you, is this is not the way this case would come out under the current court. But are there any limits? Now, I would say civil rights law might impose some limits. So for example, if you started to systematically eliminate books by Black authors, So, for example, if you started to systematically eliminate books by black authors, do you have some Title VI issues there? I would say so. If you systematically eliminate books by women writers, would you have some Title IX issues there? But what if you never acquired them in the first place? It gets tough. But if you're systematically acquiring only books by white authors or male authors.

Welcome to every public school library, at least as of 20 years ago. I don't think so. I disagree on this one. And for the students listening, by the way, we have a few high school and middle school students who listen to this podcast. Don't go to your public school library because all of this conversation is why. Get yourself a public library card, take the bus, and go read some real books. You know, there's also this other interesting question because what's ending up happening is you're having parents who get lists of books and then they're checking the list of books against

their own local library to see what's there. And I was talking to a school board member and they were saying, well, we have some of those books. And I said, how often are they checked out? Didn't have that information. Didn't have that information. I wouldn't think so. Yeah. And so, you know, what you're talking about often are books that, quite frankly, in all likelihood, have sat there, unviewed for months, years, perhaps, that are suddenly brought into contention by, you know, activist organizations. And then there's so many other ways of doing this other than taking a book off a shelf. So for example, if you're a parent who's extremely concerned with the kind of information that your child is exposed to, you can have, you can ask for and you can set in place a notification procedure that says you're pinged an email when your kid

checks out books from the library and that you're able then to approve or disapprove. I mean, these are all kinds of things that you can do short of removing. Because my problem with removing, in addition to the fact that I just have a problem with removing, is it isn't actually parent empowerment

in the way you think. Because what it's doing is it's parents who are also making parenting decisions for other parents. So you have other parents who may want their kid to read Slaughterhouse-Five or be able to get, obtain access to it at the school library. And other parents say no, and they're louder and they get it yanked off the, you know, from the school, from the library. That's, it's a much more, it's noted off from the library. It's a much more, it's not,

we use the phrase parent empowerment, but it's not exactly that. That's not exactly what's happening when you're yanking a book off of a shelf if another parent would want their child to have access to that in the library. So anyway, but I agree with you. I think the PICO case, there's a great reason why we don't talk about it in the long lineage of school free speech cases, because it ain't coming out like this. Also, Slaughterhouse-Five, I don't even

think it's Vonnegut's best. So if your school banneded Bandslaughterhouse 5 and you're headed to the public library, I'd actually go pick up Galapagos. I thought it was super fun and funny Vonnegut sort of after he becomes famous. And it's like a F all, you know, Vonnegut just having fun writing again. You know, and also I wouldn't recommend She's Come Undone.

It's like kind of dark and boring and doubty if a book can be doubty. I would maybe go Madam Bovary if you want something like sizzling and racy, but, um, that's just what our parent listeners are looking for, for their kids right now. Yeah. But it's from 19th century France. Okay. I mean, which could be pretty sizzling and racy. Oh, it is sizzling and racy. I mean, she's showing some ankle for sure. Portrait of a lady.

Ooh. I mean, there's some subversive books out there, kids. And they're not the ones that these parents are talking about. So if you need a list of subversive books, do let me know in the comment section and I'll shoot them over to you. Well,

you know, and let's also raise this other super practical real world point, which is attempts to censor, create a hidden or secret or forbidden knowledge sort of allure to the actual book itself. So if you want to make a book more prominent, just go ahead and try to yank it from anything. Mouse was number one at Amazon across all categories. So this is another reason why these censorship efforts tend to fizzle is they're just so obviously counterproductive even to the intent expressed by the censors. If the intent expressed by the censors. If the intent expressed by the censor is I want less exposure to these words and the things in this book and the effort at

censorship means that there is vastly more exposure to the words and the ideas in the book, you have failed. Now, if your intention is I want to exercise a petty degree of control and flex my muscles in a local school district, well, congratulations. I'm not sure that's an awesome way to interact with a public school district, but censorship efforts in this country tend to crash and burn and have the opposite effect. Franny and Zooey, way better than Catcher in the Rye. I would also say, oh, Ayn Rand, get the Fountainhead. No matter what your teachers are assigning you, nothing felt better than reading the Fountainhead at 14 years old and being like, yeah, authority sucks. It is a slog. Okay. Don't

read the fountainhead though. Like right before you go to college and then start spouting fountainhead stuff to people in college, that's going to make you actually far less cool than you think. Don't be that kid. Read it way early, like eighth grade fountainhead. That's just going to make you insufferable in high school and insufferable in high school is a good place to be. Well, if you're going to choose insufferability at any point in your life, I suppose high school is better than college. Certainly better than law school. Yeah. Yeah. Certainly better. Yeah. But you never know which book is going to hit kids, right? My husband is obsessed with The Great Gatsby. He thinks that is just the best American novel of all time. It does nothing for me. And maybe, maybe that's because there are interesting male characters in The Great Gatsby. And frankly,

I find Daisy to be unrelatable to me. And I feel like anyone who can relate to Daisy probably isn't reading The Great Gatsby, at least not voluntarily. So look, male authors sometimes are going to speak more to a male audience, female authors, black authors, like sort of like we talked about with justices, diversity of ideas and voices and experience, all of that's important. So don't ban books, just go read a whole lot of different books and maybe don't base your entire life philosophy around any single book that you've picked up or try things that the characters are doing because they're fictional characters in a book, y'all. That's some pretty wise advice there, Sarah.

And I don't know if you've noticed it, but I've been subtly running out the clock because we probably could have ended the PICO discussion 10 minutes ago and had some time for Madison Cawthorn. There's always Thursday. No, look, it's over an hour. It's over an hour on the clock already.

No, we can't do it. And there's no emergency basis for doing it, you know? So next time, maybe. Maybe. Next time. But we're going to get to talk about Burger V. United States from 1921, the era of Great Gatsby.

So it'll all tie in. Okay. And I've got to get a hawk to its emergency unit here. Little hawk, I see you. Well, on behalf of Hawk America, I thank you for your courage and sacrifice to save one of our own. And I'm just wondering, what's the over under on how many months before the next animal rescue story?

Honestly, I'm surprised they don't happen more often. I think it's because I'm not actually out in my car that much. There was a very tragic story of another hawk on 395, like right by Navy Yards, a very, very urban place with six lanes of freeway on each side. And I tried to get to that hawk too late. Ah, sad. Yeah. Sad. But we'll celebrate this success

and we'll be back Thursday, hopefully not to talk about Madison Cawthorn, but we'll see. We shall see. And we'll have many other interesting topics, no doubt, by that time. But in the meantime, please go rate us on Apple Podcasts. Please go subscribe and check out thedispatch.com. Bye.