Advisory Opinions - Litigation and Taxes

Episode Date: September 28, 2020

Several new polls were released over the weekend and Donald Trump is still trailing Joe Biden by roughly 7 to 10 points, depending where you look. Despite Biden’s steady lead, bad takes abound in the journalism world. “Here’s what happens when a race is not particularly close on the numbers,” Sarah explains. “People in the media try to make it more interesting by finding tea leaves and little nuggets that no one else has found and then blowing those up into their own narrative.” Sarah says it’s not always that the methodology of a particular poll is bad per se, “it’s that the causal relationship between the question and the result is assumed and not actually there.” For example, a series of polls from this weekend show that a majority of Americans oppose Trump’s decision to fill the late Justice Ruth Bader Ginsburg’s Supreme Court seat before November 3. But as Sarah points out, this is a dumb survey question for two reasons: 1) the answers break down along party lines when you look a little closer at the survey responses, and 2) it doesn’t ask survey respondents whether it will change their vote, which is the only thing that matters at this point. That leads us to the New York Times’ bombshell report on Trump’s tax returns and whether it will be of any consequence during this election. David and Sarah argue that loyal Trump supporters are simply too attached to the president at this point to care about any new scandals that emerge between now and November 3. Tune in to this episode for an update on presidential polling in battleground states, electoral litigation in Wisconsin and Pennsylvania, and a fun conversation about our podcast hosts’ favorite new documentaries. Show Notes: -New York Times/Siena College poll, Washington Post-ABC News poll, FiveThirtyEight polling averages in Pennsylvania, Wisconsin, Michigan. -The New York Times’ report on Trump’s tax returns, Purcell v. Gonzalez. -Republican party of Pennsylvania filed court documents over the Pennsylvania Supreme Court’s Sept. 17 rulings. -David’s French Press: “It’s Time for ‘Pandemic Law’ to End”, “The Social Dilemma” Netflix documentary and “The Real Story of Paris Hilton.” Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. I think I got to come up with another phrase, Sarah, than action-packed pod. I was going back and doing quality control listening to determine, to make sure our podcast is good. Spoiler alert, it's awesome.

Thank goodness. What if you had decided otherwise? I know, I know. Well, this would be a very different podcast because we'd be making like all these radical changes. Yeah. But fortunately, full steam ahead. But anyway, it is an action-packed pod. We're going to talk polling. Sarah has thoughts. I have thoughts. We're going to talk about the revelations uncovered by the New York Times as it obtained an awful lot of Donald Trump's tax information.

We're going to talk about some of the pending election cases. dilemma, a Netflix documentary about the influence of social media on our lives that I think at last count about 20 of our readers slash listeners asked me to watch because of my work on polarization and related to my book, my book, Divide or We Fall, amazon.com. And we're going to talk about that. And we're also going to talk about a documentary that I haven't seen that Sarah says I have to see, but you're going to have to remain in suspense to learn the incredibly high minded historical, very substantive,

important to American history, vital to American history. I would say. Yeah. Yeah. Probably more culturally impactful than all of social media put together. Maybe, maybe we'll, we'll, all of social media put together. Maybe. Maybe. We'll let the listener decide.

Okay. But Sarah, let's get started by talking about polling. Yes. So I know you have thoughts, but let's set it up. have thoughts, but let's set it up. So I follow the Nates, Nate Cohn, Nate Silver, Nate Silver from FiveThirtyEight, Nate Cohn from New York Times. I follow all of the polling averages. You try to dive deep in to sort of see, is there a story within the story? And what we've seen happen over the course of the last few days is some A-plus polls that rated by 538 have come out. The Siena College New York Times poll puts it at Biden plus

eight with likely voters. The ABC News Washington Post poll with likely voters has Biden plus 10 in a binary race and Biden plus six when you include the third party candidates. And the overall average as of right now is 7.3 plus Biden. And this is, I'm going to read to you the Nate Silver quote. Uncertainty is no longer quite so high. Biden has the largest lead at this point of any candidate since 1996. And the candidate who led at this stage won the popular vote every time since 1976. And then comma though, which is very, the very next interesting part, they lost the electoral college twice. And so, well,

we could go through some of the historical comps, comparables, but this is the highest lead since 1996 when Clinton at this point led by 14.3 in the polling average. And I do remember being a Republican in 1996 and seeing some of these polls and believing there is absolutely no chance. But 14.3 is a lot bigger than 7.3. So Sarah, you said you had thoughts. Nearly twice as big, David. Yes. For those who like math. Yeah. So here's what happens when a race is not particularly close on the numbers. People in the media try to make it more interesting by finding tea leaves and little nuggets that no one else has found and then blowing those up into their own narrative. I want to sing a song of my people about some of those polls and why they are dumb. Even when they're built into good polling, by the way.

It's not that the methodology is bad. It's that the causal relationship between the question and the result is assumed and not actually there. So, what am I talking about? Cato guy. Johan Norberg. You know this guy? I don't know him. I don't know Johan. Yeah, seems like a nice dude, whatever.

He has a new book out and it has this little stat in it. This will explain everything that I want to then rant about. When you ask about single-payer health care and health voters- I know where you're going care i know where you're going i know where you're going and you tell voters that obama supports single-payer health care 82 percent of democrats support it and 16 percent of republicans support it that sounds about right doesn't it david uh yes when you tell when you ask voters about single payer healthcare and tell them that Trump supports it, the Dem support drops to 46% and the Republican support increases to 44%. Okay.

So we see what's doing the work there and it has nothing to do with single payer healthcare. So then when you see headlines or polling uh nuggets like white suburbanites who feel very safe in their communities are more likely to favor joe biden that is not because the safety issue is affecting their vote it's because their vote is affecting how they answer a question about safety because it has become an election issue. Yes. Okay. Now, so we all get this. This all makes a ton of sense. So in these polls that have all come out this week, there have been three in the last 24 hours. And I think there was a fourth this morning and I want to throw my computer across the room when I see them and they're filling my inbox.

Almost half of registered voters believe that the Senate should not confirm Amy Coney Barrett to the Supreme Court before the results of the presidential election are known. Next poll. Majorities of likely voters in Michigan and Wisconsin say the winner of the 2020 presidential election should fill the U.S. Supreme Court seat

left vacant after the death of Ruth Bader Ginsburg. Next one. A clear majority of voters believe the winner of the presidential election should fill the Supreme Court seat. David. Yes. Those aren't broken out by party affiliation, in which you will see that the majority of Republicans

want the seat filled and the majority of Democrats don't. But also, even if that were somehow that their belief on that question were driving their vote, the actual question you want to ask, that's a dumb, dumb question to ask, not which they prefer, will it change your vote? Right. Depending on when she is confirmed. And none of those polls asked that question. Why, David? Why? Why? I love the anguished cry. Yeah, that's that. Well, I mean, I think there's a there's a cynical answer which says that the asking of the second question removes any news value from the asking of the first question. That's true, because the actual polls like, you know, two other polling stories found, quote, no serious evidence that the Supreme Court vacancy has affected the race for the White House. Right. That feels more right.

So I have a I have a theory. OK. My theory is this, that when a large number of voters are asked a question in an issue poll as opposed to who will you vote for? What what do you think of what do you think of Senator so-and-so's handling of Controversy X? My least favorite questions. They're all, it's all crap. My theory is that a non-insignificant number of voters

only learned about the existence of the controversy by the question being asked them. Yes. And that their immediate response is going to depend on what they their their reflexive partisan reaction. If they ID the party of the person involved and have the positive or the negative, that's going to be your answer. And it's one of the reasons why I just frankly don't pay much attention to issue polling at all. pay much attention to issue polling at all. Correct.

I mean, my, you know. It tells you more about the partisanship of the people. Now, the only issue polls that I find interesting are the ones that cross cut that. Right. Where you get a surprising answer that does not match with their partisanship. Then there might be something interesting there that I want to look at a little further. But A, if you don't break it out by partisanship, then I'm just going to assume that it falls along the correct partisanship lines. And B, if you do,

and like these questions where some of them did break it out by partisanship if you went through the crosstabs on the when Amy Coney Barrett should be confirmed. Yeah. Like, okay, so yes, everyone's falling into their camp. Why did we spend money on this?

Yeah, and another thing is, there are issues where you do see overwhelming levels of support. But a lot of those issues, especially if, I'll give you a good example. You often see very overwhelming levels of support on certain very modest gun control measures. I was just going to say background checks.

It's always background checks. Yeah. And yes, except people don't vote on it. Exactly. So that's the thing is that it's- Do you want clean water? Yes. Everyone says yes to that question.

Will you change your vote based on the candidate's positions on what they're going to do about guaranteeing clean water? Absolutely not. I'm going to do about guaranteeing clean water. Absolutely not. I'm going to zig where you zagged. I'm going to say I want bad water to come out of my tap to give me practice for filtering it for the zombie apocalypse.

Right. Yeah. Okay. But you fall into that, that, you know, 7% of people, like for some reason we cannot on any issue of like, do you like puppies and sunshine? The highest you can really ever get is 93%. I don't know what those other 7%

of respondents are doing. I'm curious. I want to like, you know, you can go back and listen to, uh, they record all of these conversations. And so you can go listen to those if you're a reporter and go see what those 7% were saying. Maybe I need to call the New York Times and listen in on some of those calls. That must be the proportion of Americans that's commenting on my articles because I'm so obviously right. Why am I getting so much blowback in the comments section? It's that fifth dentist, you know? Yeah, four out of five. That's right. Fifth dentist, you know? Yeah, four out of five.

That's right. So let's go from the polling regarding Amy Coney Barrett, which I think this was extremely predictable polling result. And I think that it's not ultimately going to matter very much at all that the Supreme Court nomination fight is not going to matter very much at all one way or the other come November. But what is your perspective right now on the race itself? I mean, you have been preaching that this is stable, stable, stable.

It's looking stable, stable, stable. Are you seeing anything at all to contradict that sort of narrative of stability? No. The one thing that is interesting is that if the state polls are not getting Trump voters quite right, and I'm going to say this

because I think by saying it out loud, I am un-jinxing us. Boy, the tie scenario is really likely compared to past ones where like, yes, you could sit there on 270 to win and make the tie work. But if you consider the polling as a snake map where you put the states as a snake map, where you put the states in the order of how close the polls are,

you have Florida, then North Carolina, then Arizona, and then Wisconsin. I'm going to draw a little break, break in our snake there. Then you have Pennsylvania, Michigan, Minnesota, like all those other states. If the break, break, if Donald Trump wins Wisconsin and all of the other states that are closer than Wisconsin, North Carolina, Arizona, and Florida, it is 269 to 269. Yeah. Yeah. So I've said that Florida is his firewall state, and I still believe that because I think if you lose Florida, again, on that snake map, I don't understand why you would lose Florida, but then somehow win Wisconsin. I understand it's mathematically possible,

but just in terms of practical political reality, it would be very difficult. Well, you know, as I look at it... Yeah. I'm sorry, I didn't finish your thought. There's some argument that Wisconsin should actually be considered the firewall for Democrats because if they can take Wisconsin from the snake, then there's no path to victory,

even if he wins Florida. Right. You know, as I'm looking at the state-by-state polling, what's interesting to me is sort of seeing how Florida and Arizona, which seem to be much more, even a month ago or so, seem to be much more low-hanging fruit for Biden,

although Biden still is leading by a very small amount in Florida and Arizona in the polling averages, they seem to be re-reading a bit, which is not that surprising at all. But the interesting thing is polling averages in Pennsylvania, Michigan, and Wisconsin are at this point right now that if Trump wins those states, there's going to be yet another conversation about a big polling swing and miss. Because right now the RCP, or not RCP, the 538 average in Wisconsin is 6.9.

Yeah. It would be a big miss. It would be a big miss. That would be a big miss. The RCP average, again, I keep saying RCP out of old habit, 538 in Michigan, 6.9. And the 538 in Pennsylvania is 4.9.

And so just looking at your old 270 to win that is a biden 279 trump 256 um victory uh and and so it appears if you believe these polling averages that that mid what used to be the midwest blue wall before 2016 appears to be reverting to type. And if that's the case, then Trump is just done. But if that's not the case, Sarah, when is somebody going to figure out how to poll the Midwest? So that's exactly what I was going to say. If for some reason Trump wins Wisconsin

despite those polling averages, and for instance, the polling averages don't change in the next five weeks, then pollsters have a big problem because it means that they're just not getting Trump supporters to pick up the phone anymore and that Trump supporters are less likely to pick up the phone, which has not been the case partisanshiply wise ahead of 2020. Yeah. that's that is i mean that that will be i mean that would strike me as okay one year 2016 where you sort of have this black swan candidate um with a reversal in electoral fortunes from decades uh well not I mean, decades in some cases for some of these states, for Republicans, you can kind of say, OK, y'all, you get that one. You get a freebie. But after the entire United States has been freaking out about getting polling correct, if there's another swing and miss. Which is I don't think there will be for what it's worth. I think the polls are going to be, you know, within two points.

I agree with that. I think if you're walking, it's going to just be very interesting to see because we have the debate tomorrow. It's going to be very interesting to see as each day passes and the opportunity for something big to happen to sway the tiny number of people who say they're undecided all decisively in one direction. It's each day that diminishes. You's going to be very interesting. I agree with you. I think if you're walking into an election day with Trump down five in Pennsylvania, down seven in Wisconsin and Michigan, I'm going to be, I'll fall out of my chair in shock if Trump wins that. But if he's walking into election day with it three or even four, nothing's going to surprise me. But even four, I'd start to get, I'd raise a single eyebrow, kind of like the rock in the people's eyebrow. Speaking of which, The Rock has endorsed.

Did you see that? Yeah, I mean, the whole election's over now. The Rock has endorsed Joe Biden and we can all go home. We don't even need to have the election. I mean, when the people, I can't remember the last time

the people's champion spoke out like that. Huge. And delivered the people's elbow to the Trump campaign. Yeah. Yeah. So, anyway,

somebody sent me a text and said, could that be the only celebrity in America who can move votes? I think it's really, I think, you know, he's, he has dabbled, not even stuck a toe in the water, like a toenail in the water about running for president. Honestly, I think he'd do quite well. Yeah. I think he'd do well. Also, i think he'd do well also i did one of my favorite national review stories i did ever did is i did a cover story on the rock um which uh the rock liked very much thank you very much and what was interesting to me about it is how much like there are a lot of celebrities who weigh into public stuff,

but how much he had avoid wading into public controversy in favor of constantly wading into sort of like public affirmation. And if he ran for office, he couldn't do that anymore, Sarah. He'd have to take a position. You say that, but Joe Biden, talk about an interesting strategy that is working, by the way. Every question of what would you do if you were president, he is not answering. It's true. And I have to say, I'm like, well, if you can get away with it, he's right. If you answer any of those questions, you let the story move to what would Joe Biden do? If you just refuse to answer it and take some lumps on Joe Biden refuses to answer a question, the story remains on Trump. So, you know, Joe Biden, would you support packing the court if

Republicans fill the Supreme Court seat? I'm not going to answer that question because that's what Donald Trump wants me to do. OK, Joe Biden, do you support passing the Green New Deal? Oh, not going to answer that question because that will shift the story to me and we want to keep this focused on Donald Trump. Joe Biden, are you currently running for president? Ooh, yeah. I'm going to take a pass on that one.

And reporters are just kind of like shrugging. They're like, I don't know what to do. He won't answer the question. And he's telling us why. It's not like he's being cute about it or coy or pivoting. He's just saying, oh yeah, no, I'm not answering questions about what I'm going to do as president. Because honestly, the people who are voting for me don't care. They just don't want to vote for Donald Trump.

So yeah, I'm going to keep not answering those. Thank you. It is fascinating. It is remarkably transparent. I've never seen anything quite like it. And what's going to keep not answering those. Thank you. It's fascinating. It is remarkably transparent. I've never seen anything quite like it. What's going to happen at the debate? Oh, I know. I mean, I think he's going to find a way.

If the last few weeks have been any guide, what he's going to do is try to find a way to pivot every single question back to Donald Trump's record on that quite specific issue. pivot every single question back to Donald Trump's record on that quite specific issue. And he'll say, because he has this phrase that he uses, we got to stay, keep our focus, keep our focus. And you're thinking, well, wait a minute, isn't like what you'll do as president? It's a little relevant. I guess that in 2020, it's not, but shouldn't it be? I'm just a country lawyer, Sarah, but I tend to think that I'd like to know what a presidential candidate would do as president. A great SNL skit that we have not discussed, despite this being a Leo podcast,

is Caveman Lawyer. Caveman Lawyer. Oh, man. What a fantastic. I just learned how to make fire, but don't you think that... My client is entitled to between one and 1.5 million in compensatory damages. So good. That was Phil Hartman, right? Yes. Yes, absolutely. RIP. Okay. So let's move on. So we've talked about stability.

R.I.P. Okay. So let's move on. So we've talked about stability. We've talked about the stability of polling leads, stability of people's attitudes. And that leads us straight into the giant scoop that broke out last night. Set Twitter aflame. I just dipped my toe into it until this morning because I had things to do

like watch Sunday Night Football and binge Cobra Kai. My fantasy team crushed last night. At the last minute, I picked up Burkhead. Uh-huh. 27.8 points. Nice. So delicious. It just tasted so good.

So, Sarah. Yes. How many federal judges are in your fantasy league? None. Oh, I don't believe you. None. None. This is a politico league.

Oh, it's a politico league. You're not in the Steve Hayes, Chuck Todd league, are you? No. No, I don't get invited to such frat star high-minded political leagues. I was on Chuck's podcast promoting my book and talking about polarization last week. And I almost told him he doesn't have a real fantasy league with real football expertise unless I'm in the league. But then you're like, oh, no, I'm going to have to join their like, oh no, I'm going to have to join their fantasy league. I thought I'm going to have to join their league. So anyway.

This story comes out last night and my jaw dropped that like, here we are in late September and lo and behold. Yes. So here came the news of the trump uh taxes and so the best guess is and almost you know one of the more um that it appears that new york times somebody broke the law and uh got the new york times a bunch of trump's tax returns from the last 18 years or so. I think it's an interesting clue, by the way, that they don't have the tax returns from 2018 or 2019. And enlighten us, Sarah. It means that you basically know when that person left whatever position gave them access to the tax returns yes right right so no rank speculation but as to who it could be but it does narrow

down to decide determine who had access correct it's probably not someone who is currently had that who currently has access to his tax returns. Right. And the basic, you know, the top line is that he paid very little in taxes for the last year that they had. The first year of his pregnancy, almost said pregnancy, presidency, presidency um 750 dollars uh total paid 750 dollars maybe the year before and basically there's this really helpful chart that the new york times has constructed that shows that trump brings in a lot of money uh on any given year um between i think the the low that he has is a little, between 20 and 40 million in 2000, to a high of, when The Apprentice was really giving him money, of a little more than 140 million in 2005. And then, but then come the losses.

And so beginning in about 2009, 2010, he just starts losing some serious money. DJT Holdings loses a ton of money, and it looks like Trump National Doral is an absolute giant money pit. giant money pit. And so he ends up with large net losses. And one of the legal realities of taxes is that when you lose money, even if a whole bunch is coming in, you're not paying taxes. So the fact that Trump, who might have 80, 100 million coming in in a specific year, doesn't pay any taxes is not surprising when you learn in that same year, he might have had about 120 million. So he might have had 80 million in income offset by 120 million in losses in various businesses that he runs. You're not going to pay taxes then. And so there's been year after year after year where his losses have far overwhelmed his income and he hasn't paid taxes. And none of that is illegal. It's not even particularly controversial except for the

thing I'll talk about next. But what was your first blush thought when you saw all this? I wondered how the White House would respond. And last night they said, well, in the story itself, they say that the information is false. That they do not have the correct tax returns is what is implied. But this morning, the president, of course, contradicted his own people. But this is a little confusing per usual. his own people. But this is a little confusing per usual.

The fake news media, just like election time, 2016 is bringing up my taxes and all sorts of other nonsense with illegally obtained information and only bad intent. So wait, is it fake or is it illegally obtained? Cause if it's illegally obtained, they're your tax returns. If it's fake,

then they're not your tax returns. Right. So I'm going to, they're your tax returns. If it's fake, then they're not your tax returns. Right. So I'm going to assume they are your tax returns. Yeah. If you're saying they're illegally obtained. And if they're not his tax returns, it's a grade A plus journalistic scandal. Correct. That is splashed all over the New York Times.

He says, I paid millions of dollars in taxes, but was entitled like everyone else to depreciation and tax credits. And look, you had talked to Trump voters about whether they're going to care about this, David. And they're going to say that, which is our tax system is totally broken. And someone said something very smart to me. A Trump supporter said this, David. A healthy country doesn't elect Donald Trump, and Trump's supporters know that.

As in, like, they're not saying that this is good, but Donald Trump is the vehicle that they need right now, and so they're voting for him. But, you know, I think that's a smart take. A healthy country doesn't elect Donald Trump. Yeah. Said by someone who elected Donald Trump. Yeah.

And so, yes, this doesn't matter to them because to them, the tax system is broken. So, yes, people like Donald Trump don't pay taxes and good for him because the Trump voters wouldn't pay taxes if they could avoid it too. Yeah. So, I have a slightly... And I don't think this is going to alter anything right now.

I mean, I think if you took... We've talked a lot about stability. Let's just say, talk about strength of support and opposition as different metals, okay? Yes. So a very soft metal is lead. A very hard metal is titanium. And metallurgists on the podcast, please don't... Are very upset with us already. Yes. Please don't say, well, actually, there's a different... You also have to consider brittleness of the metal because a metal can be quite hard but brittle. But no, no, I'm just going like, you know, sort of like comic book level thoughts of like, would you want lead armor or titanium armor? Okay. And I think you'd rather have titanium. of attitudes with Trump has moved rather quickly in the primary process from lead to like iron or steel. And then once he received the nomination and he got the, you know, and all of the factors

of negative partisanship locked into place, like we were just talking about how you have to read everything through this negative partisanship. Then it goes from iron or steel to like, you know, I don't know, starting to move towards titanium because you have, as we've seen, these approval ratings for President Trump have been more stable in good times and bad than any president in the modern era. And then the closer we're getting to the actual election, we're hardening into stuff like adamantium, like the metal that's in the superhero Logan's skeletal system. And this is not going to dent that adamantium. But I think there's two areas where this matters.

And there's a woulda and a maybe part where it matters. And you tell me if I'm wrong. The woulda is in the primaries. If this kind of information that shows that far from being sort of like this iconoclastic, spectacularly successful businessman, that negative polarization had not locked in yet, only a plurality of Republican voters supported him, that he was awash in almost a decade of extraordinary losses, and that he was, you know, that he was in a down, arguably, the picture that's painted is not one of apex predator business success,

but somebody who is looking for a way to boost his income. And that punctures a little bit of that apprentice-created, Donald Trump marketing genius-created image of himself. And I think it could have made a difference. Except, except all of the candidates in the primary were hitting him on the bankruptcies and he had a good slash whatever it worked answer, which was, yep, because bankruptcy lets you discharge debt and then I could start over. So why not? Yeah, but a lot of those bankruptcies were old news. Like in the 90s. Yeah. You know, if you're hitting him

on bankruptcies that are a quarter century old and he still seems to be this sort of business colossus, I think, I don't know, maybe it could have mattered.

I think this shows there are good reasons why he didn't release them. It would have been, it wasn't going to be, it just wasn't going to be good for him to release those tax returns so I think there's some part of this it's a woulda coulda shoulda now here's the other part let's assume just for the sake of argument although we'll say it a million times you know

there he has a chance at a comeback but let's assume there's the stability that we see and he does lose and if he loses decisively there will be a people who will jump off the trump train and there will be lots of people who will jump off the trump train and they'll look for things that will have rationalized their presence on it for so long. And you will start to see things like, well, you know, you'll start to see insider stories come out and you'll hear things like, well, if I knew that, or you'll start to, you know, you'll get the information about maybe the tax returns and in New York Times, very prominently stated, more stuff is going to be coming. Well, if I knew that, and I just think that, you know, you're going to have this, this sort of, not for everybody, you're going to have

the hardcore Trump folks, but you're going to have some folks who are sort of positioning themselves for phase two, uh, or the next phase of the GOP civil war. And they're going to, they're going to be looking for reasons why, in spite of the fact that Trump sort of contradicts a huge amount of what they've always been, why they kind of hung in with him. And I think this is one of those things where they get to say, I voted for him, but I knew by the time the tax returns were released that this guy just, he had problems. So that's my cynical future take on it. The only thing I disagree with is the primary stuff really it was it and i think this is where like being on the ground for that i'm telling you there was nothing

there was nothing that would have mattered so so oh let's explore this because you're saying casick dropping out after new hampshire, no, no, no. I mean, information about Donald Trump. Oh, okay. Okay. He was bulletproof with that segment of voters, and there was nothing you could have done to peel a single voter off of him. Got it. Okay. But is there a counterfactual scenario you have for 2016 where he would have? Okay. What's, what's your counterfactual? I want, I'd love to hear it. Um, the, there's some like, uh, let's see, we've, we've annoyed the, the mineral people. annoyed the mineral people,

so the metallurgist people. So now let me annoy the virologists or microbiologists, regardless. Anyway, we're about to do some pseudoscience here. That's right. If you have an infection, if you introduce bacteria to an organism, you have sort of this window where antibiotics can be really effective very

quickly where you wouldn't even know that you had the bacteria because there's so few bacteria, you just smother it right off the bat and you're done. But if you wait a week and you let the bacteria multiply and run wild, maybe the antibiotics will still work, but it's going to take a really long time. And like, you have to stick with the antibiotics you have to make sure all the bacteria is dead and all this stuff by the time you get to march no i actually am one of the people who does not believe that casick actually did make a difference right didn't annoy me to to worlds that i cannot describe yes it did because it was worth a shot. But in my heart of hearts, I don't think it mattered because by that point, the bacteria

had run wild through the system and it had multiplied and people had fallen in love with Donald Trump and they become very attached to him. The time to administer the antibiotics when they would have been most effective was in June at the very beginning of him running. That's when you needed him to never be taken seriously and to never take off and to never get that real introduction to voters. And so, you know, the two things that would have mattered are a smaller field where the frontrunner the clear front runner, was never in trouble. And so Donald Trump never takes off. And B, a media that wasn't craving covering him. Yeah. Yes. Oh, my gosh.

I mean, breaking into normal programming for the rally, he gets free airtime every time he picks up the phone to call. So we get crackly, you know, one of the reasons why people wanted it on there. But frankly, a lot of people just thought it was hilarious watching the GOP go down this route. And just sort of felt like it was a freebie. Like they were giving a freebie to the Democrats for three consecutive presidential terms. for three consecutive presidential terms. And it was remarkable the extent to which, and I remember saying to folks in the summer when, I remember the Saturday Night Live skit that maybe it was after the third debate

where there was a question asked to fake Hillary, Kate McKinnon playing Hillary, anything else you have to say? And she goes, I'm going to be president. Yes. And that was just so, so, so locked in. And I will never forget sitting at a lunch table with the provost of my college that I attended and one of my favorite professors. We were having lunch and my phone buzzed and I saw the news that Comey

had reopened the investigation. And I just had this immediate feeling that said, that's really important that that just happened. And then I began to doubt myself in the days that followed, you know. But at that moment, I just had this deep sense of my gut that the fact that that happened was really important. And do you know what's interesting, David? Yeah. I saw that news. Didn't think twice about it. Didn't think it mattered at all. Couldn't imagine that anyone

cared. Yep. Was like, well, why would that? Nothing. And obviously, like 24 hours later, I realized what was happening. But when I first saw it hit my inbox, I scrolled right past it. Yeah. Yeah. But so anyway, I think a lot of Democrats are now sort of they've got they've been burned once. And now they're just at the point where they're like, 7.2 election lead right now? Should we panic? I know, it is. No, it's not even should we panic, it's how much should we panic?

I mean, people are white-knuckling a 7.2 national lead and they're white-knuckling these five and six and seven-point leads in swing states as if it's just all about to fall apart and i have to say sarah i am looking at it and i'm saying is this real you know is this i've got that is this real in the back of my head i'm going to confess let's take a moment and thank our sponsor gabby insurance when you've had the same car insurance or homeowner's insurance for years, you get kind of trapped into paying your premiums and not thinking about it.

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So I just want to do a check-in with you, David. Yes, please. On what is happening. There's a Supreme Court rule, I mean a case, right, called Purcell. It's Purcell versus Gonzalez, 2006. It was a PC, a per curiam opinion. No dissents, although Justice Stevens wrote a concurring paragraph, three sentences.

So a per curiam means we don't know who wrote it. And they're generally considered non-precedential, although hilariously, we now call this the Purcell standard. So it's like the opposite of that. So this case came about in 2004 when Arizona voters approved Proposition 200. To quote the case, this measure sought to combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day. So basically the Ninth Circuit stays this really close to the election in October. And what the Supreme Court says is this is not about the disposition and whether something's right or not, but we're simply not going to change the election rules that close to an election. And that's been the way things have been since 2006. Now, what is close to an election,

2006. Now, what is close to an election, David, you ask? Yeah, that's the problem. But what we know is certainly close to an election is when the election is ongoing, current, happening right now, as it was in Purcell. It was October, and we are now in October ourselves. Yes. So while there is Purcell gray area, we ain't in the Purcell gray area and anymore we're in the heart of Purcell. Yeah. With that information, I want to look at Pennsylvania, Wisconsin and Arizona. And I,

I need to tell you something, David and all of our listeners, my husband represents the Wisconsin legislature in one of these cases. So just bear that in mind as I'm talking about it. You know, like, yep, it is what it is. I can't undo that. I'm not going to talk about who's right and who's wrong, really. Nor would you want to because a lawyer's got to make a living, Sarah.

That's right. I'm so sorry, listeners. My husband is employed at the elite level of litigation in this country. My bad. And it actually provided one of the cooler moments of our marriage because he was the first person to file at the Supreme Court during the pandemic. And it was related to this Wisconsin litigation. So I have a little picture of him. He had to do it in person because they hadn't changed the rules. So I have this little picture of him, he had to do it in person because they hadn't changed the rules. So I had this little picture of him like wearing a mask when there's no cars on the road in post-apocalyptic DC, holding his little brief, heading into the court. So, but let's start with Pennsylvania.

You've heard a lot about naked ballots, I hope, David. These ballots are not wearing their pants. So what are naked ballots? Pennsylvania decided that when you return an absentee ballot, you put it in an envelope, literally, to mail it back. But then there's going to be an envelope within that envelope that is called the secrecy envelope. And so the question about naked ballots is whether if you forget to put it in the secrecy envelope, but still put it in the voting envelope, can we count your ballot? And currently the answer would be no. And so the Pennsylvania Supreme Court kind of gave this like mostly win to the Democrats when they wanted all this other stuff.

Like, postmarked ballots that were received within three days of the election, that were postmarked by election day, will be accepted, even though the law says that they, in fact,

need to be received by Election Day. The Supreme Court said, no, three days after is fine. They also said, though, that if it has no legible postmark, it can still be received within three days after the Election Day. There was some stuff about drop boxes.

They knocked the Green Party presidential candidate off the ballot um uh there was uh ballot harvesting they rejected the democrats wanted to do community collection where you can go pick up everyone's absentee ballot so they lost that part and then no one really noticed the naked ballot thing so So now Pennsylvania is just in shambles. Democrats are upset that they can't do ballot harvesting, community collection, and that all of these ballots that get turned in without the secrecy envelope, the naked ballots are going to get rejected. Republicans are upset because of this postmark issue. That basically if you have no legible postmark and all of a sudden the ballot shows up three days later, that the Supreme Court, the Pennsylvania Supreme Court says you need to accept that. Litigation aplenty. So the

Republicans have intervened and asked for the Supreme Court, the Pennsylvania Supreme Court, to stay its order so that they can take it to the U.S. Supreme Court to apply the Purcell rule and say, look, you can change the rules of the election for the next election and the Pennsylvania Supreme Court can do that, but you cannot do it in mid-September as the election is ongoing. Because there's also, you know, you want to defer to the Pennsylvania Supreme Court about their own rules and laws. And you want all these states to have, you know, 50 laboratories of experiment when it comes to pandemic law, if you will. But the Republicans are arguing that basically, you know, the pandemic, as we have discussed, we're no longer in the period where it's like, oh, my gosh, what do we do? They had six months. They blew it. It's now mid-September. Them's the rules. If the law says it has to be postmarked and received by election day, you can't change that in mid-September. It's getting too difficult for

voters. But David, here's the problem with the Purcell rule, I think. What about if voters in mid-September, now they just don't know what the rules are. Is it that you have to post-market? You don't have to post-market? I don't know. And so what's going to end up happening is no matter what the rules are going to change now in October, because either this is going to be in effect

or it's not going to be in effect, and we're not going to know still for probably another week or two. Yeah. I mean, confusion is, it strikes me, inevitable at this two. Yeah. I mean, confusion is, it strikes me inevitable at this point. Correct. And, you know, it's going to be interesting

to see what the Supreme Court does because I wrote up, I wrote an essay or a newsletter several days ago called, that said the time for pandemic law should be over. And what I did not mean was the time for special pandemic-related restrictions should be over. And what I did not mean was the time for special pandemic-related restrictions should be over.

No, the time for absolute judicial deference to pandemic-related legal measures should be over. In other words, we went through a period, and you and I talked about this at length, that when you're in the period of maximum uncertainty regarding a pandemic, that's the period of maximum discretion of state public health officials. They're the ones who are tasked constitutionally by our system of government with responding to public health emergencies. But the longer we live with the particular, and the more that we know about the particular virus at issue or the public health challenge at issue, then the more regular constitutional order should begin to lock in, that there's going to be less judicial deference to pandemic-related restrictions. Again,

that does not, so to make it really, really concrete, right now, I think even under normal judicial review, a masking restriction imposed on churches should be upheld. It meets normal constitutional tests. But if you're going to say you can hold a political convention, that would be struck down under a normal judicial review standard. Or to take the case that's most controversial, how the Supreme Court upheld Nevada's rule that restricted churches but allowed for... Nevada! Sorry, Nevada's rule that restricted churches but allowed for a lot more leeway for casinos. I think that should have been struck down by the Supreme Court, but they were still operating in the zone of pandemic law. Are they still going to be now?

And are they going to have this consideration because they're human beings that says, wait a minute, if we were operating in pandemic law until just right now right before the election and we rule in favor of say the pennsylvania republicans what you know there are all these human considerations in there as well so it's going to be interesting wisconsin is very similar a slightly different procedural posture but they have five issues in their case, some of which are exceedingly uninteresting. But the Democrats wanted to extend the deadline to register to vote, extend the deadline to receive absentee ballots.

There was some weird thing about faxing absentee ballots and then emailing back ballots. Let's skip that one. What's faxing, Sarah? I'm not then emailing back ballots. Let's skip that one. What's faxing, Sarah? I'm not familiar with that term. I know, right? Meh, meh, meh. Yeah.

Information, getting information out to voters, and then the residency requirement for election officials. So if you've noticed headlines about Wisconsin, it's all been about the absentee ballot, receiving those after the date of the election. Current Wisconsin law would say that they have to be received by 8 p.m. on election day, which is when the polls closed. The initial court opinion was that that could be

extended for quite a while. But then the Seventh Circuit has now stayed that. And, you know, it is a mess. On the one hand, I don't think there's any voters who are intentionally trying to get their ballots in after the deadline. Right. But at the same time,

maybe we should be telling voters, vote early, real early. Mail it early. Don't send it in the day before the election. It's not going to make it in time. So that has been stayed by the seventh circuit as they're considering it pretty likely to go to the Supreme court as well.

And again, we're running out of time here, David, the Supreme court's going to end up getting these in mid October and definitely going to purcell them. They're going to purcell the crap out of this because they're not going to wade into this world, but it's going to turn a

lot on these absentee ballots and here's another big problem that is let's call it purcell adjacent there's just like a practical reality purcell is a very practical rule to me it's not a constitutional rule it's just practical um and that is the absentee ballot processing in a lot of these states. So Pennsylvania, you cannot start processing an absentee ballot until 7 a.m. on election day. Wisconsin, you cannot start processing them until, quote, the polls open on election day. And so the problem, I mean, that's a huge problem regardless. Like that's a dumb, dumb law. Like as Scalia would say, stupid, but constitutional. Yeah. And so you're going to have people frantically trying to count all these absentee ballots so that we can have some idea

of the election result in any reasonable timeframe. But if you allow absentee ballots to show up six days after the polls close, and you can't start counting them, that is creating a mess that goes beyond just the Purcell rule for the voters' sake, but in fact to sort of the country's sake. Yeah. That is, to me, separate from the rights of individual voters to have their votes counted. We as a country also have a right to know the results of the election. And if we're getting ballots in six days later, three days later, that is a problem in Wisconsin and Pennsylvania of all places. Look, if this

were West Virginia, we wouldn't care. Well, you know, California, as a lot of folks know, takes forever to count votes, like forever. It's really ludicrous actually how long it takes california to count votes but nobody doubts the outcome i mean they call the state the instant the polls close but you know we could end up because this is 2020 here is an incredibly foreseeable result an incredibly foreseeable result in Pennsylvania and Wisconsin is that the vote that comes in and that's known by election day or right around election day favors Biden, but the Democrats, and there is a push to call the states, call the states. But because the Democrats have wanted to extend the count, then Republicans will flip around and say, don't you dare call the

state until every last vote is counted, at which point you'll start to have huge, you'll start to have volleys of litigation about the way in which it's being counted, how people are being disqualified. And you could end up with a situation where the Democrats could be denied that clear cut win by their own legislation. And well, and we're going to that gets us actually pretty close to Arizona. But before we get to Arizona, do you know what state has done the most beautiful job, big, beautiful job counting their ballots? Oh, you know, whenever I'm saying what's the best state and I don't have any clues to the answer, I'm just saying, of course, it's Tennessee. No, it's Florida. The state that screws up their elections the most is actually really good at

this. So they start counting their absentee ballots 22 days in advance of election day, starting at 7 a.m. And that's why on election day, we may have all sorts of other problems with Florida ballots. But the one problem we don't have is those absentee ballot counts. They're done. And it's great. And other states should do this, not because they have to, not because it's mandated by the Constitution, but because it's great. And other states should do this, not because they have to, not because it's mandated by the Constitution, but because it's smart. Yeah. You know, at this point,

Florida is like a battle-hardened infantry battalion. They're tired of being made fun of. They've got this grim look in their eyes, like we've seen things. But they now, at this point, they know their business. They know this, this dirty business and they, they've got a more, a greater handle on it than most States. Cause Holy smoke,

have they been through the electoral wars? In two weeks, Florida starts counting their absentee ballots. Uh, Pennsylvania, by the way, tried to start counting their ballots earlier this year, but, and I'll get these numbers slightly wrong, the governor wanted them to start counting three weeks in advance, but the Republicans only wanted them to start counting three days in advance, and they couldn't compromise, and now no votes are getting counted. Cool, guys. Real good plan there. Love the outcome. So last state, Arizona, and I mentioned Arizona because it's very different than Wisconsin and Pennsylvania, Arizona voters or governor, anyway, they passed

a ballot harvesting law, anti-ballot harvesting, which I believe about 18 other states have. Oh, disclosure, by the way, a husband also has an amicus brief in that case. Gotcha. So sorry, listeners. So 18 other states or so have anti-ballot harvesting. This is where someone not related to you can just go around and like pick up people's absentee ballots. Some people see that as really helpful. You know, you go around to a nursing home and take all their ballots for them and mail them for them or turn them into the election office. It's a very nice thing to do, like helping a little old lady cross the street. Other people see that as a recipe for fraud. You can take those ballots and steam them open or change them or throw them in the trash if

you think that, you know, all of those people voted for not your candidate. So Republicans passed that anti-ballot harvesting law. Democrats have sued. It is up on a cert petition to the Supreme Court. And the Supreme Court, I believe, is looking at it at their first conference. And you know what, David, it's going to get decided after the election and everyone's fine with that because that's how we should do election laws well in advance. Right. And so, yeah, the merit stage of that won't happen for quite a while.

What I find funny about that case, by the way, and to your point about, you don't know which laws are going to help you or hurt you when the time comes. Yeah. The most famous and recent case of a voting fraud prosecution and an election that was actually overturned and the election had to be redone was over an anti-ballot harvesting. That's how they use,

that's what they use to prosecute these guys. Yep. In North Carolina, and it was the Republicans. Exactly. Like that's the most prominent, most famous recent, like fraudulent election

was a Republican in North Carolina. Yep. And they needed that anti-ballot harvesting because they actually never proved that he committed fraud per se what they proved was that he violated the law by collecting all these ballots and there's some evidence that he like threw in the trash the ballots that didn't vote for his right candidate um but that's not what they had to prove at court because they could prove the thing before that which is why you have these anti-ballot

harvesting, because it's much easier to prove that someone took a bunch of ballots. It's much harder to prove then that they did something nefarious with them. Right. So if you're expecting either side to stay principled on which things they favor, oh, we should count absentee ballots that arrive after the election day. No, that will not be principled. It will be pure who's in the lead and who's not. It's all power now. I mean, I'm constantly reminded of the moment in Tyrion Lannister's trial in the Red Keep where Tyrion looks at the assembled nobles of Westeros

and as he's about to be railroaded into being executed for a crime he didn't commit. And he says, if you're looking for justice, you've come to the wrong place. And I think if you're looking for principles, you've come to the wrong country for right now. Anyway. Certainly not in 2020. Yep. Not in 2020. Shall we talk a little bit of Silicon Valley, social media, social dilemma, followed by your... So this is a documentary, the genre of documentary that I don't watch because they are not historical. They are sort of current feelings documentaries.

And I tend not to care about people's current feelings about events. But David, it does seem relevant to your book. So what was, what tracked with what you were saying and what did not track? Was there anything in the documentary that you were like, nah, dog, you got that wrong? So the documentary, just to back up, it's called The Social Dilemma. It's on Netflix. I would recommend that you watch it. And it sort of has three strands running through it,

two of which I largely agree with and one of which I think is a little overblown. So the three strands are these devices. Your phone combined with social media have an extraordinary hold on your kids. And the algorithms are designed very intelligently to hold their interest in specific ways, to prod their interest

if they've abandoned the phone for a while, to do all kinds of things to sort of just like keep you there, okay? To keep you looking at the product and to keep you engaged in the product and or keep you engaged in the in the uh you know in the phone and they make this you know this this uh statement that if you're not the if you're not paying for it you are the product in other words what is happening is you are being sold to advertisers. And I think that's all pretty conventional wisdom, a lot of it at this point, but they did a very clever thing where

they did this sort of, and some people have rolled their eyes at this, but I thought it was pretty clever. They showed how the algorithms work, but they personified the algorithms as if there's like three people at a control room, like saying, Johnny hasn't looked at his phone in 90 minutes. Whoa, his ex-girlfriend just posted a picture. Let's ping that, you know? And so it does that, which is all, it's, you know, all just the function of algorithms pinging you when people you have a high degree of interaction or past interest with do something new.

But it really showed how the operation of the technology grabs and holds you. Then the other thing that it did I thought that was pretty effective was it did show how, and correlation isn't causation, but it did show that there is, with the rise of social media, but it did show that there is, with the rise of social media, especially amongst young people, we've seen a real high rise in anxiety, depression, and some of these maladies where kids are just sad and insecure. And then also showed a lot of the data that I had actually in my book about the rise of polarization. Now, I'm less convinced about that because the rise of polarization, you can really track back to well before the rise of social media. So this was all happening before social media, but there does seem to be some evidence that it's accelerated since social media, but it was happening before.

I thought, honestly, the main value of it was for parents. Oh, and I forgot the third strand of it was sort of how these companies are trying to future cast your behavior. And a lot of that just struck me as Silicon Valley acts like any other company, which is trying to maximize your attention on its product. It's just that it's really good at it. It's not that it's different in kind from any other company. They're just good at it. Companies want you to be, quote unquote, addicted to their product. And addiction is not the correct word to use, but want you to be, uh, focused on their product. They all do. Silicon Valley is just good at it. But, um, so yeah, I thought as a parent,

it was probably most useful as a political observer. It was useful. Um, and as a sort of these companies are like profit maximizing greed factories. I was like, uh, in other words, they're, they're corporations. Um, they're, they're trying to monetize what they do. Uh, and so, yeah, I thought it, I thought it was very, very much worth watching, but mainly for the parental piece of it. That's interesting. So I'm not on Facebook anymore.

I was on facebook from roughly 2004 to when did i get off um you know probably 2016 and a lot of it was that that like i could feel myself continuing to scroll down past when i actually wanted to and that it was making me less happy as I continued to scroll. Right. And so I was like, yeah, but that's like some real frontal lobe control that teenagers do not have. Yeah. Yeah. Well, it was interesting.

They said they talked to the inventor of the like button and it was classic study of unintended consequences. He said, we meant this to be sharing joy. And instead, what ended up happening is it's a massive source of anxiety, especially if you're engaging the more visual mediums, like you're posting a picture on Instagram and it's not getting enough likes. I thought that was fascinating. You hear about all these teenagers,

and I don't know this, but it seems true, that if you don't get enough likes within an hour, you just take down the photo because that would be embarrassing to leave up a photo that's not getting a ton of likes. Speaking of which, I should check Instagram because I posted a picture yesterday of the brisket watching me on ABC.

Did people like it i hope i liked it i like it thank you oh yes oh good i've gotten some i've gotten yeah i've got 332 likes i feel good about that that makes me feel good and my aunt my aunt says her mom saw me good um good aunt-in-law so that we'll call that a successful post triggering what is it the dopamine rush yeah i feel it oh a teenager a teenager liked it who like i'm friends with so that's nice she says you are the coolest she left a comment i like that yeah um you know what we will never do live or live on the podcast is we will never open up one of my tweets that goes viral and read down the thing. It is. It is. Yeah. I mean, I have a documentary that we're going to watch together this week, David, whether we talk about it on Thursday or

Monday, I'll leave to you. But in the near term, this is the documentary that I think, to my point about like historical figures that need more in-depth treatment to really let us understand American history at various points, culturally, politically, everything. And it is. David, we're watching the Paris Hilton documentary this week. Yes, yes. But you know what? I can see what you're saying.

I can see what you're saying. I can see what you're saying. I'm not wrong. There will be historians who will say to me, I'm sure, and please email me, but she introduced the modern era, because I'm not going to presume to know all of American history, the modern era of being famous for being famous and turning your fame into an independent industry that's about your fame. I mean, Kim Kardashian owes her like some royalties. Oh my gosh. Yeah.

Yeah. She's like, if you could say who was like sort of the precursor basketball player to Michael Jordan, maybe Dr. J. Like Dr. J had incredible athleticism. If Dr. J was in town, you were going to go see him. But then here comes Michael Jordan, and Michael Jordan sort of takes the Dr. J-ness

to the next level. This could be the documentary about how Dr. J made Michael Jordan possible. David, do you want to hear something really sort of depressing? Yes, always. Paris Hilton turns 40 in just a couple months. You're kidding. 40 years old. Now, why is that depressing? Because it might be differently depressing for us.

Now, why is that depressing? Because it might be differently depressing for us. I mean, it should be depressing because that means that you are that much older. Because if you remember Paris Hilton and you thought she was really young and now she's 40, that makes you 70. A little. you a little a slight but it also is you know she's still young i 40 is young and it also shows like how fast fame goes because she was better than most people at being famous for being famous and staying famous for a while and now you, you know, I don't know. I don't read page six, but I can't imagine that page six has tracked her all that much.

And she's got a lot of life left. I mean, 40, you're in your prime, Sarah. I mean, you're in your prime. The prime is getting older. Let me just say that. Like 51 is the prime. And I have a feeling by January of next year say that. Like 51 is the prime. And I have a feeling by January of next year, 52 is going to be the prime. I have that feeling as well.

Well, Brittany and Paris and I are cohorts. And so we are all heading to that great abyss together. It's not an abyss. Come on in, Sarah. The water's fine. it's not an abyss come on in sarah the water's fine on that note aging me uh we shall end the podcast unless sarah you have any anything else to add i'll see you tomorrow night for dispatch live post debate yes thank you so yes please tomorrow night post debate we are going to do something it'll be non-hot takey hot takes.

That's right. On the debate. So that'll be you and me and Jonah and Steve, the Dispatch Podcast crew. And we will go live right after the podcast end. No need to watch all the spin at all on ABC, NBC, CBS, CNN, Fox, MSNBC. Watch us instead. And so that will be an expected email and you'll get one if we haven't gotten one already. And please join us if you're a Dispatch member. If you're not a member yet, there's time to join. We are still in the closing days of our

30 days free free trial. And you can go to that by dispatch.com slash 30 days free again that's dispatch.com slash 30 days free and uh if you're not sure go to the dispatch.com we've got the stuff on the website a lot of it is from out from behind the paywall so you can check us out and see if you want the stuff that's in the paywall. And again, that's dispatch.com, 30 days free. And we will see a lot of you guys tomorrow night. And until then, we'll be back on Thursday. Spring is here, and Brandt has the deals you need to get your operation up to speed. Roll into Brandt for 10% off construction and forestry parts, discounts on inspections, and exclusive deals on trackpad swaps.

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