Advisory Opinions - No More Pre-Mortem (Almost)

Episode Date: November 8, 2022

On today's combative pod, David and Sarah revisit the Stacey Abrams lawsuits and check in on the state of election laws. They then turn to the question of expressive activity and whether a state can force a beauty pageant to include transgender contestants. They conclude with an examination of Washington state's approach to "unconscious bias" in trials. Plus: the duo offers a few pronunciation meae culpae. Show Notes: -David on Stacey Abrams’ election challenges -Green v. Miss United States of America -Henderson v. Thompson -Scientific American on the problems with “implicit bias” 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. I'm David French with Sarah Isker. And we've got a lot of stuff today. We've got some SCOTUS stuff, some quick notes on SCOTUS cases, some notes on potential cases arising out of the midterms, a free speech case out of the Ninth Circuit involving a collision between a beauty pageant and a transgender contestant, and then some wildness out of the state of Washington regarding race and civil trials. So yeah, this Washington case is fascinating is one word to describe it. Sarah, but let's not get there yet. Let's not get there. You've got some stuff from SCOTUS. Well, we spent so much time, of course, on the Harvard and North Carolina affirmative action

cases. We didn't really even discuss the fact that of course there were other cases being argued last week three others two of which merit quick mention on this pod uh in case the decisions come out in some fun interesting way and we want to come back i want to be able to say oh obviously we talked about these when they were argued um the first one which i do not expect a particularly interesting opinion on based on the oral argument, is called Cruz v. Arizona. Now, here you have a guy who was sentenced to death. And during the course of that, the jurors were not told that he could receive life without the possibility of parole. And actually, in 1994, in a Supreme Court case called Simmons v. South Carolina, the Supreme Court held that jurors must receive

such information to rebut an inference that the defendant poses a future danger to their community. Arizona basically just declined to ever apply Simmons. And so in 2016, the Supreme Court decided a case called Lynch v. Arizona that just was like, yeah, Arizona, this applies to you, too. Welcome to the club that's been here for a while. So Mr. Cruz would like to revisit his death sentence in light of that. would like to revisit his death sentence in light of that. But you're running into Arizona State Procedural Rule 32.1G, which requires a significant change in the law for post-conviction review. So that's what this is going to turn around. And you had Justice Thomas with what was perhaps a telling question. Is there even a federal interest here? Like, why are we here?

Which you can chalk up to being just Justice Thomas and his ornery questioning nature. But unfortunately for Team Cruz, the chief justice also jumped in, said Arizona basically wasn't acting with any hostility at applying this rule and suggested that perhaps Arizona was just limiting post conviction review, which was perfectly within the state's purview. So, David, I'm expecting this, in fact, to be upheld. It will have no particular bearing on anyone outside of the state of Arizona, really, and not even on the Simmons or Lynch rule, but just, in fact, to be upheld, it will have no particular bearing on anyone outside of the state of Arizona, really, and not even on the Simmons or Lynch rule, but just in fact, on sort of the state's ability to limit post-conviction review, which I think they will say is pretty broad. Next up, had a

case called Jones v. Hendricks. Now, this one I sort of thought was a little bit interesting because we've talked about some of the underlying parts of this case as well. And again, we're going to have a criminal case here where it's not actually going to be on the facts, which are like the really fun criminal cases, David, like, you know, the opening your garage door and running in curtilage case. Here, Mr. Jones was convicted at trial of being a felon in possession of a firearm under 18 U.S.C. 922G. He was sentenced to 27 years. He's more than 20 years in when the Supreme Court decides Rahaf be United States, which we talked about briefly, David, and this was where the felon in possession

requires the government to prove that the defendant knew he was prohibited from possessing a firearm. Of course, because this was all decided before the Rahoff case, the prosecutor didn't present any evidence that Jones actually knew he wasn't allowed to own a firearm because he was a felon. knew he wasn't allowed to own a firearm because he was a felon. And Jones now argues that he didn't in fact know, even though he had 11 prior felony convictions, he says he thought they were all expunged. So I will just note from the outset here that you've got not great facts for the criminal defendant, i.e. it's not really plausible that he actually would have fallen under this Rahoff burden of proof standard. But the question here is what vehicle allows him to appeal?

He's already exhausted his post-conviction appeals federally, but there is a savings clause which basically just says that prisoners can pursue a traditional habeas corpus petition if their imprisonment to vacate was due to, quote, inadequate or sorry, that their original appeals were inadequate or ineffective to test the legality of their detention, which David would make some sense here, right? The Rahoff case wasn't there at the time. And so his previous appeals pre-Rahoff were inadequate or ineffective to test the legality of his detention potentially. But there's of course the Anti-Terrorism and Effective Death Penalty Act known as EDPA. And that also very much limits when you can appeal afterwards,

the Eighth Circuit held that EDPA controls here, the savings clause doesn't matter. And, you know, the only real cases where you would get that other appeal are actual innocence or a new rule of constitutional law that the Supreme Court has made retroactive, which of course is not the case here. And so I'm interested in that one. I think you could have some good criminal law coming out of this because EDPA limits it to constitutional rules. It doesn't say statutory rules. And so a lot of the questions at oral argument turned around, well, did they not say statutory rules because they kind of meant to include it or they assumed it was included? Or did they very much know that they weren't including

statutory rules when they passed EDPA? And round and round we went. So David, as I said, you know, when these come out, they may get another quick mention depending on how they turn out. I will predict that there will be no longer than we just mentioned them today. I think so. And David, can I do a few fact checks? Yeah, please. Before Justice Barrett or after Justice Barrett? Whichever you want. We'll just do a quick Justice Barrett. She has once again turned away a challenge to the student loan forgiveness plan. This one, the Pacific legal case that we have discussed previously. One line, one sentence order.

One line, one sentence order. So as of right now, once again, she has, this is I believe the second time that she has rejected emergency relief. So not much more to say about that. Now, fact checks. These are all fact checks on me. And let's just start, you know, this is, have you ever seen that SNL skit where they do the fact checks at the end of Fox and Friends? This is going to read a little bit like that. First, I called it Berkeley University. What was I thinking?

It's UC Berkeley. I didn't even notice you doing that. I know. I suggested that, you know, Harvard was probably Methodist or something at its founding. No, it was like maybe Congregationalist, but that just wasn't right. I also asked the question of whether BYU was a state school. And boy, did I hear from a lot of people about that one. At first, in fairness to me, I said BYU was not a state school. I said it was a religious school. And then I second-guessed myself, but I second-guessed myself out loud, which was a mistake. And I'll never do it again.

BYU is definitely not a state school. And finally, David, we kept referring to the famous affirmative action case decided in 2006 as grutter, like putter. But in fact, if you go back to the oral argument at the time, it was gruder. Gruder. And I knew that at the time, and I'm sure that sounds familiar to you now, but I don't know. We just fell into a grutter place in our lives and so we kept saying grutter it is gruder we believe based on that um and again like that was if if the bakey case is roe the gruder case is casey when it comes to affirmative action and uh this will all be about whether they overturned Grutter. So we probably should be pronouncing it correctly. So I must have absolutely blacked out

because I had no recollection of you even inquiring as to whether BYU was a state school. And I went and I looked at the comments. It's like, what's all this talk about BYU? But yeah, definitely private school. We got it. We got it. We know.

Yep, my bad. Should we talk about the midterms and some cases that might arise out of the midterms before we get to the Ninth Circuit and Compelled Speech and Freedom of Association and beauty pageants? Absolutely. Just before we actually have election night, I just thought it'd be worth running through what you're going to see on election night legally, what you'll kind of see in the aftermath and then the way aftermath. So, yep, we have three different buckets to bring here. And by way of expertise, this is actually what I did

as a lawyer. I ran election day operations in 2012 for Mitt Romney, which mostly involved preparing for recounts that never happened, but also was sort of preparing each state and their legal teams for potential litigation. So, you know, we'd have a binder in every state of who was the on-duty clerk? What was the chain of custody for the ballots? How do you file an emergency motion? And which court do you file it in? And like, literally, what's the address? Who would go do that? You sort of do these, you know, dry runs. And you have to have, obviously, a litigator who is licensed to practice in that court, all those things. So what does that all look like in practice tomorrow? First of all, as we know well at this point, if you are in line when the polls

close, you get to vote no matter how long that line is, no matter how long everyone has to stay. But what can also happen is that a machine will go down at a polling place or some delay maybe in opening the polls that morning. And one side or the other will want the polls themselves to stay open later to allow more people to get in line post, let's say, 8 p.m. And so you will file in court to actually ask that the polls stay open later. That's sort of bucket one. That's these emergency, something that is having to do with events on the ground. You know, like I said, a machine breaks or the staff didn't show up because they had the flu or something. They all had the flu. That'll get filed on election day itself. David, we also have pre-election lawsuits and those haven't gotten a lot of attention, but for instance, the RNC, and this was actually a week

ago, as of a week ago, had filed 73 lawsuits in 20 states. The one that's gotten the most attention, of course, is back in Pennsylvania on those absentee ballots and whether you have to date them correctly. Pennsylvania Supreme Court holding, yes, if your ballot is not dated correctly. For instance, if you write 2021 instead of 2022 on your ballot, or you write July, you write a seven instead of a 10, that ballot's not gonna count.

So those are the type of pre-election, you know, litigating over those election rules for the counting of ballots, which in some states, of course, happens already. In other states, you can't start counting until after the polls close. That'll be a whole different mess. And then, David, you have the really big bucket number three, which is post-election. That will be something that could not have come up pre-election. Now, of course, if you think back to 2020, they filed plenty of post-election lawsuits about rules that had very much been in place and they could have sued about beforehand, which was part of the problem. You can't wait to see how the results turn out to decide whether

you liked the rules you were playing by. Right. But there can be other post-election lawsuits that are meaningful. You know, the chain of custody was broken or ballots were misfed or any, I mean, truly any number of things. But the one that's going to get the most attention, David, will be the voter fraud slash voter suppression type of post-election lawsuits. The one that we've certainly paid the most attention to and that I think deserves the most attention is that Stacey Abrams post-election voter suppression lawsuit where, and I mean, you wrote about this so well, David, we should put it in the show notes again, 21 day trial, 50 witnesses, an Obama appointed judge who happens to have the last name Totenberg, which you may recognize, related of course, to the famous legal reporter, Nina Totenberg for NPR. And David, do you want to just walk us through again what that lawsuit

looked like and how long it took to go through? Yeah. So this was a 288 page opinion that was challenging a variety of Georgia measures. So you're talking about everything from exact match signatures. You're talking about challenging. Oh, gosh, it was a frontal attack essentially on all of the Georgia election measures that were sort of in the Stacey Abrams list of complaints against Georgia. So this was a case where Abrams lost by about 54,000 votes, which is a margin about five times larger than Trump's 11,000 vote loss in Georgia. Trump's 11,000 vote loss in Georgia. And what was interesting about this case is that it was challenging poll worker training, exact match requirements. It was challenging alleged mismanagement of the state's voter rolls. And what the judge did is he did a couple of things. One said, look, this is not a perfect system. No election system

is perfect. But all of the challenged legal provisions, all of the challenged elements of Georgia law were in fact lawful. OK, so everything that was challenged, the exact match requirements, et cetera, et cetera, they were all lawful. They did not violate the constitution. The other thing that was really, I thought, incredibly valuable was that the court took a look at, were there voters who wanted to vote who are not able to vote? Which is a really big question if you're claiming voter suppression and there's a 54,000 vote difference. So could you come forward? Could the plaintiff come forward with individuals who said, I tried to vote, but I was not able to vote? That would seem to be a pretty important aspect of a voter suppression lawsuit, that there would be dozens, hundreds, thousands of people

who tried to vote and were unable to vote. Couldn't come up with that um as the court said there was no direct evidence of a voter who was unable to vote experienced longer wait times was or was confused about voter registration status because of you know uh id id requirements etc or experienced heightened scrutiny at the polls. OK, that was one bucket. And another bucket when they're talking about in-person absentee ballot cancellations, all this got very much in the weeds. So they came forward with seven voters who they said experienced difficulty with what were called in-person absentee ballot cancellations.

But six of the voters actually voted. And the one who couldn't vote was mainly stopped by a scheduling issue with their nursing facility and not by Georgia law. So again, you had two components here. One, the Georgia election law did not violate the constitution. The Georgia election law was upheld and Abrams' team could not come forward with voters who were unable to vote. So without that direct evidence, even of a single voter who was not able to vote due to Georgia law and due to the challenge provisions of Georgia law, makes it very, very difficult to demonstrate voter suppression. And so what ends up happening, Sarah, is a lot of voter suppression arguments depend on sort of unprovable assertions like, I know turnout was way up and turnout was way up in Georgia. I mean, way up from previous years. way up in Georgia. I mean, way up from previous years. So for example, in the previous gubernatorial election, the Republican Nathan Deal won the election with 1.3 million votes. That was the

amount that he won the election with. In November of 2018, Abrams lost with 1.9 million votes. Abrams lost with 1.9 million votes. So she got 600,000 more votes than the winning Republican in the previous cycle. There were 2.5 million total votes cast in 2014. In 2018, there were 3.9 million. And someone who says there's still voter suppression would say, well, but there could have been maybe 4 million cast or 4.1 million cast absent the suppression. But again, if you're not able to come forward with individuals who are not able to vote, the voter suppression argument becomes almost entirely theoretical. And that's really a difficult, very, very difficult argument to make. a difficult, very, very difficult argument to make. Similarly, flip it around as we have seen in a lot of the absentee ballot challenges, the claim is and the justification for trying to crack down on absentee ballots is based on claims of that absentee ballot fraud is rife or rampant.

Again, it becomes when you actually drill down and you try to find how many proven cases of absentee ballot fraud, it's very, very small. It's very, very small. And so both on the voter suppression side and on the vote fraud side, the provable reality of both of them is very, very marginal if it exists. But the concern of vote fraud on the right and vote suppression on the left is through the roof. So the concern is through the roof, but the provable claims tend to be very difficult to find. And that might've been more than you were asking for sarah because i just i just went on a filibuster i we have a problem because if enough people buy into the idea of voter suppression or voter fraud it does undermine faith in our elections which is a big problem and so on the one hand i think it's good to litigate some of these.

For instance, David, you're right that legally, in order to win a voter suppression claim, you need to show that someone was unable to vote. But what if it was just really hard to vote? Not unable, like instead of waiting the normal 10 minutes to vote, you had to wait seven hours. Is that not a type of voter suppression? But is it a legally cognizable one? As in, you don't have a right to only wait 15 minutes to vote. Now, if you can show that in some neighborhoods, it's 15 minutes and in other

neighborhoods, it's seven hours and that there was some intentionality behind that, I think that could be a legally, of course, that could be a legally cognizable claim. Although, of course, the Supreme Court has made that a little harder after the Brnovich case in Arizona. You'd have to really show a significant difference in where those wait times were. On the voter fraud side, again, as someone who did this for a long time, I've said this over and over again. It is really, really, really, really hard to commit voter fraud at all. And I cannot come up with a way to commit voter fraud that would affect a statewide election. The sort of most effective ways to commit voter fraud, because this is now a do crime podcast, is to mess with the absentee

ballots. And so either you go harvest a bunch of absentee ballots from your opponent's strongest area, tell people that you're just doing a friendly service to help them, and that way they don't have to drop it off or even walk it out to their mailbox. And you go pick up all those absentee ballots, and then you throw them in the trash. Okay, you might be able to even pick up, I don't know, David, a few hundred, maybe, before someone's going to call in and say, hey, someone's walking around and offering this. And certainly if you had at scale, 50 people going around and picking up a bunch of absentee ballots at some point, you're going to get busted. The other thing to do is to steam open absentee ballots that have been sent and change

them or fill them out. Things like that. Um, a, a person who claimed to have done this in the state of New Jersey said that it took him five minutes per ballot. You're going to have to do that at scale because absentee ballots aren't out there that long. First of all, you're going to have to go find them and again, harvest them out of mailboxes. That is also going to be difficult because it's not like everyone knows which mailboxes have absentee ballots in them and all of that. And when they're going to be there, high risk of getting caught.

Also, a reporter tried to do it and mimic the way to do it. Couldn't do it. Couldn't even get one open after 30 minutes of trying. So, you know, this is where those anti-harvesting laws, I think, are helpful. North Carolina had one. That's what allowed them to criminally charge that Republican consultant in North Carolina. They redid the congressional race. They actually never found that he committed fraud or that he did anything with the absentee ballots, but they found that he was harvesting those ballots illegally. And so that's why he was charged. There are some other fraud things that I, you know, for instance, in almost every polling place that I'm aware of, you're allowed to have

poll watchers from each political party there just to be able to say that they were watching, they're on team R, team D, and there was nothing for them to object to. And if there is something for them to object to, they can immediately call back to headquarters. They get lawyers there. Again, my job was to man that hotline or oversee the hotline. It now does seem to be so partisan that certain state officials will try to prevent poll watchers from being close enough so that they can actually see what's happening or letting them in the building, or they think they're disruptive. And so you end up with some injunctions around that. Look, a few things here. One, just let the poll watchers in. I get it. I know it's unpleasant to be watched doing your job. I don't want to be watched doing my job. I don't. But the law says so. And it won't actually affect the vote. So let that happen because it will. Transparency is good in this process from the poll watcher side. That's why it's in the law.

this idea that somehow low turnout helps Republicans and high turnout helps Democrats. Can we be done with that and quit filing lawsuits, frankly, from either side that try to prevent people from voting or make sure more people get to vote after the time, regardless of whether they need to or not, because 2020 should have blown that out of the water. And frankly, 2018 and 2016. And there's been academic studies about it. High turnout does not have any partisan advantage. Voter ID does not affect either party. So both your quote unquote restrictive voting measures don't help Republicans or hurt Democrats. Also, your extremely high turnout vote by mail doesn't help Democrats. And it doesn't particularly hurt Republicans either. There's just no evidence for it. It's like this gut feeling. And frankly, these pretty insulting stereotypes

about each party, which by the way, now that the parties have kind of realigned, which by the way, now that the parties have kind of realigned, even if those insulting stereotypes had any merit to them, they don't count anymore because now that the parties are far more aligned around education, for instance, it's no longer the case that all the non-college educated voters, for instance, are voting Democrat and they're too dumb to fill out their absentee ballots correctly. And so if we make really stringent absentee ballot rules, they won't know how to jump through that hoop. And therefore Republicans suddenly win and vice versa that like when it rains, it'll keep those low propensity voters at home. And those are all Democrats. So pray for rain. If you're a Republican, nope. The parties have shifted enough in the last 30 years from when

that used to be the stereotype that you need to drop the stereotype because it's not helping your side, whichever stereotype you belong to at this point. And so I'm expecting to see lawsuits that actually will not help the party filing the lawsuit. And I'm pumped about that. Oh, man. So this is a perfect segue into something that I wanted to talk about, about the Stacey Abrams case. But quick, quick fact check. The judge who ruled against Abrams, well, Abrams organization was Steve Jones, Obama appointee. You thought of Amy Totenberg. Yeah, I did. Why did I think it was Amy Totenberg? She was involved in a different case. Oh. I think it was Amy Totenberg. She was involved in a different case. Oh. Involving, now this is,

this is really interesting because if you remember before the stop the steal, the quote-unquote, air quote, stop the steal effort, the effort to overturn the 2020 election, if you go back prior to Republican conspiracy theories about voting machines, the Venezuelans, the Italian military satellites on all of that. Do you remember there were Democratic conspiracy theories about voting machines? Do you pronounce it Diebold, Diebold? Yeah, yeah. Going back in the 04 presidential election. Well, anyway, there was a case. One of the reasons why there were long lines in some precincts in Georgia in 2018

is because there was a lawsuit filed alleging that a number of voting machines were vulnerable to tampering or hacking. Okay. This was filed by Democratic activists. So this is before 2018. So this is, there are about 1,050 voting machines in Cobb precincts, but about 550 were sequestered. Okay. So the county could have deployed about 1,400 or more voting machines. And then another 700 voting machines were out of service in Fulton and 585 in DeKalb County. Why were all of these hundreds of voting machines out of service? The machines were set aside because an order by U.S. District Judge Amy Totenberg that called for the preservation of evidence

in a lawsuit seeking to move Georgia from electronic voting machines to paper ballots. So she had denied a motion to throw out the state's voting machines, but the lawsuit was underway. So this is going back a ways, but there were Democrats who filed challenges to the voting machines in use and hundreds and hundreds of them were set aside.

And this is an example of how sort of the way in which there's been paranoia about voting can absolutely shoot yourself in the foot. And so that was, you know, a fascinating sort of footnote to all of this was that. And that's why I'm sure one of the reasons why you're thinking about Judge Totenberg, because Judge Totenberg was, in fact, quite relevant in Georgia in 2018. Yes. And because that became also then super relevant in 2020. That's why the opinion stuck in my head. You know, David, the one area where there is now a huge partisan disparity in voting is around early voting and absentee voting, where Democrats are far more likely to vote by mail early.

We're seeing that in Georgia already and a lot of other states around the country. Not surprising after the 2020 election. But I don't like any partisan difference in voting because you end up incentivizing one side or the other to change the voting rules to help their partisan interests. And at the same time, overall, we are seeing a lot more people early vote in person, for instance, because it's incredibly convenient. But I'm curious, David, Jonah has strong opinions about early voting and that we've overdone it. There's too much early voting. You need to vote on election day. Do you have opinions on this? Yeah. You know, I have always been a little bit,

I've always given extended early votings a side eye because of the phenomenon of people breaking late breaking news of new information coming out about candidates. And sometimes information comes out before or after you voted and it's done. You voted. So I've not been in love with early voting. I don't have a real problem with it either. It's just not one of those issues that gets me up in the morning to write or talk about. There have been times, and on this podcast, there have been times when I've said, I've thrown that old side eye towards early voting. eye towards early voting, but it's not, if you're doing an issue polling of me, Sarah, early voting is way down there. I have, I have less strong opinions about early voting than I do about like the shift moving later, the DC move superhero movie schedule. Like, so yeah, that's the sort of, I'm a low intensity voter about early voting. So I think there is a wide variety. The Biden legislation that he introduced earlier in the year called for 14 days of early voting.

That seems very reasonable to me. I don't think there's a whole lot of late breaking news two weeks in that's going to change people's minds over early voting. And if you're worried there could be, just don't go early vote. If you think something could change your mind, just wait till election day. Georgia has 17 days on sort of that outer band. Massachusetts only has 11 days.

New York only has nine days. Anyway, it's just sort of all over the place. I think it's really interesting. I think the next big fight, of course, though, will be over no excuse absentee voting because of that partisan distinction, which annoys me. The way I would put it is I would have interesting discussions about early voting back when we still believed in election outcomes and we're just sort of fine tuning the system a bit. Now, the question about early voting, whether you have 14 days or 17 days or nine days, strikes me as virtually irrelevant compared to do we trust the results of these elections, right? And that's what I'm-

Georgia also has automatic voter registration. A state like Minnesota doesn't. And in Georgia, you don't need an excuse to vote by mail, absentee. But in Massachusetts, New York, Connecticut, and Delaware, you do. Anyway, I just think that's... But now, on the flip side of that, you don't need an excuse to vote by mail in Georgia, but you do need to include the number from a state issued ID, something we talked about in 2020 around Texas, for instance. as it turns out, are making the difference one way or the other. Everyone is turning out to vote. My Jonah, of course, has the theory that people are turning out to vote since 2016 because they think that the country is in such crisis. They need to make sure that they're voting to prevent the end of America. I have a different theory that the polls were wrong in 2016.

And so and then they were wrong in 2018. And then they were wrong again in 2020. And as people trust the polls less, all of a sudden they think their vote matters more. The polls say it's a plus five race. So I don't need to bother to vote, said 2014 voter. But now the polls say it's a plus five race. It's probably neck and neck. This could come down to my vote, says the 2022 voter.

And I think that equally explains high voter turnout, or maybe it's a combination. So one thing that the polling uncertainty has done is it's just destroyed the premortem business, which was a big part of punditry. And I was going to say back in the day, but back in the day is like in recent times where it was, there was just a lot of ink spilled about why this result you believed was inevitable was happening.

And now there's, you're still seeing premortems. You're still seeing a lot of stuff that's sort of based on this idea that the Democrats are alienating Hispanic voters, for example, Hispanic voters, for example, which there's some data, a lot of data, even pre-existing 2022 to support that, but you're just not seeing quite as much. And I think that's really healthy. There's an awful lot of people who've pressed pause on a lot of takes that are virtually pre-written right now, but they're not sharing them until this thing is done. Ain't that the truth? So here's a funny, a funny pre-mortem that has already come out.

So Third Way, whose honorary co-chairs include Gene Shaheen, Gary Peters, Joe Manchin, Kristen Sinema, Tom Carper, Chris Coons, Sherry Berry bustos so they put out a memo that said if democrats manage to hold on to the house and senate it will be in spite of the party brand not because of it despite a roster of gop candidates who are extreme by any standards voters see democrats as just as extreme as well as far less concerned about the issues that worry most of them. I mean, look, James Carville has been saying this. Bernie Sanders has been saying this.

This message that abortion is an economic message is not credible. The vast majority of women and mothers are not going to be seeking an abortion, but all of them are going to the grocery store this week. Right. And all of them are filling up their cars with gas. So, you know, the argument is like, well, if you get pregnant, you have to go to the doctor and you have to, you know, think about how that's going to affect the economy of your home. Like, yes, but come on, you're not using this as an economic message. That hasn't been how you've been talking about it. Well, let's continue the pre-morteming after we just said, it's great that there's no pre-morteming. So one quick thing about that, and then we'll

move on to the Ninth Circuit and Washington state. There's a couple of things I think that the Democrats really have forgotten when they're in their abortion messaging. And this might age very poorly if the polls turn out differently. So I fully know that this might age very poorly. There's two things about abortion I think that the Democrats have it fully absorbed. One is because of the incredible decline in the abortion rate in the United States of America since Roe, since like a couple of years after Roe, when it peaked in 80, 81. Abortion is much less common, and that means it's much more downstream from most people's lives. As you were saying, there's a minority of women who've received an abortion, 100% of women experiencing inflation. So it's much more

downstream from people's lives than it was when the abortion rate is 2x of what it is now or 2.5x of what it is now. The other thing is that nobody likes it. So you're taught, you know, I've used this study before, Tricia Bruce, University at Notre Dame, who interviewed hundreds of people from across demographically representative sampling. And it's the best abortion research I've seen, because rather than asking these standard polling questions that are often really bad, she and her team just sat down and talked to people about abortion rights. And what she found is that there was, of course, wide divergence as to whether people thought it should be legal in all circumstances, illegal in all or most circumstances, but there was unanimity, unanimity on one point that not one person surveyed would characterize abortion as a desirable thing. And so if you're talking about a right to engage, to do something that people who even do it often

don't like it, and it's much less common than circling a whole bunch of your messaging around this thing, or the majority of your messaging just strikes me as missing it, as absolutely missing it. But that's, man, we just pre-mortemed. Last couple of quotes from this Democratic memo, by the way, David. Democrats are underwater on issues voters name as their highest priorities, including the economy, immigration, and crime. While Democrats maintain a lead on handling certain issues like abortion and climate change, voters also rank these issues as lower priorities. And this one was interesting to me, David. Voters question whether the party shares essential values like patriotism and the importance of hard work. Only 43% of voters say Democrats value hard work

compared to 58% for Republicans. This is something they are flagging as a problem with the Democratic brand. So I do expect a lot of post-mortems. And remember, in the post-2012 election, the RNC put out something called the autopsy. They didn't call it the autopsy, but everyone else, including those of us who worked at the RNC at that point called it the autopsy. I'm expecting some autopsy stuff from the democratic party. The problem is that the progressive wing of the democratic party is going to reject the results of that autopsy, which we've seen in the past, by the way, from both parties basis saying, no, no, it's because you didn't double down hard enough. We didn't have enough progressive candidates or enough, you know, more conservative candidates. So anyway, we'll have plenty to talk about on Wednesday, both with lawsuits and outcomes and everything related to that. But David, we have more cases. We do. We do. So do we, So let's hear a little bit about the Miss United States of America pageant.

So this is a beauty pageant that faced a litigation from a potential transgender contestant. And so the Miss United States of America pageant is a pageant that places a big emphasis on patriotism, has a few simple rules of eligibility. One is you cannot have posed nude anywhere before the pageant. You have age requirements that, you know, you can't be too young. You can't be too old. And then you have to be a yeah, you have to be between 18 and 29. Never pose nude in film or print media. Not be married or have given birth. Interesting.

And finally, the contestants should be a natural born female, according to the pageant. according to the pageant. Now, lawsuit was filed by the transgender, by the potential transgender contestant. And this was a collision between the First Amendment rights of the pageant owner or the pageant itself and the public accommodation statute and the public accommodation statute, Oregon public accommodation statute, which, uh, prohibited, uh, prohibited discrimination on the basis of sexual orientation, uh,

did not at that time explicitly cover gender identity, but neither party disputed that the statutory definition of sexual orientation extended to include the transgender contestant's claim. So Sarah, the Ninth Circuit, just to cut to the chase, ruled two to one on free speech grounds, free speech grounds, that requiring participation by a transgender contestant would be a form of compelled speech because the beauty pageant was expressive activity. This was, they were, the beauty pageant was organized around the purpose of engaging in that expressive activity. It was defining the terms of its expressive activity. And because the transgender contestant

did not meet and was not engaging with that And because the transgender contestant did not meet and was not engaging with that, including the transgender contestant would change the nature of the expression that the transgender contestant would not be able to participate. In other words, that the beauty pageants rules were upheld. I found this case interesting. The outcome, I found this case interesting. The outcome, not at all surprising. Interesting. It's sort of a preview of the 303 creative case that is going to be heard at the Supreme Court this term that in the 303 creative case, if you remember, this was a website designer does not design websites for same-sex marriage ceremonies to celebrate same-sex marriage ceremonies. And again, you had a conflict between expressive activity and public accommodation and non-discrimination laws.

And Sarah, I think that what we're going to see at the Supreme Court is what we saw at the Ninth Circuit, at the Supreme Court is what we saw at the Ninth Circuit, which is if your organization, whether it is for-profit or non-profit, for-profit or non-profit, but if your organization, your company, whatever, is truly engaged in expressive activity, as opposed to a pure commercial enterprise like serving hamburgers, barbecue sandwiches, et cetera, expressive activity that non-discrimination statutes are not going to overcome the First Amendment interest of the organization. We'll put the case in the show notes, but did you have any thoughts? I think that line's going to get pretty messy at some point.

You know, what if your hamburgers, what if it's Chick-fil-A and they're arguing their entire business model is an expressive activity. They are modeling their faith through their company. Now Chick-fil-A does not discriminate. Absolutely not, but they're closed on Sundays. And so they do model their faith through their business decisions, including when to be open. their faith through their business decisions, including when to be open. Well, yeah, there are going to be, that's one of the reasons why the Masterpiece Cake Shop case was a much messier case than 303 Creative. Because if you remember Masterpiece Cake Shop,

one of the core questions at issue in Masterpiece Cake Shop was, wait a minute, is baking a custom designed cake, isn't that just making food or is it making art? And Oral Argument had a lot of really interesting questions about what is the line between just providing a service, you're making a food. And the reason why I use barbecue sandwiches, for example, is because the Piggy Park case that we've talked about before, where religious liberty interests couldn't withstand public accommodation laws. There was no religious liberty interest in refusing to serve black customers barbecue sandwiches. And so what is this line between expressive activity and providing a service? And I 100% agree with you, Sarah,

it's going to get messy. And I think it's the, one of the principal reasons why Masterpiece Cake Shop was decided on much more narrow grounds, but 303 Creative and Miss United States of America, that's pretty far on the side of the, of expression and not close to that line. I agree. I do agree with that. But if you're the Supreme Court, you have to start making rules that cover the line, not cover the easy ones. Yeah. No, it's that line is going to get very interesting. going to get very interesting. Let's just say I've never heard anyone come forward with a hard and fast rule that's going to be easily applicable across a variety of different forms of businesses. So it's going to be very interesting. And we'll take a quick break to hear from our sponsor today,

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Yes. Okay. So Sarah, you sent me this, um, really interesting reference to a rule in the of jurors and the Washington rule, which is not just a rule that appears to be, um, it, it contains a principle that is not just related to jury challenges, but related to the courts of trials writ large, tries to take into account the role of implicit bias. Okay. Implicit bias. Now, for those who don't know what implicit bias is or unconscious bias, unconscious bias is just exactly what it says. It's sort of this idea that says that I have prejudice or, or have, I have, yeah, I have prejudices and biases that I'm not aware of.

In other words, I might think a certain way about individuals, women, people of different races, and I might have prejudices against them that I just don't even know about. And so the rule in Washington is this. If the court determines that an objective observer could view race or ethnicity as a factor in the use of a preemptory challenge, then the preemptory challenge shall be denied. For purposes of this rule, an objective observer is aware that implicit institutional and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington state. Now, why did I say this has been extended beyond this general principle is extended beyond preemptory challenges? Well, there's a case and I'm just going to go ahead and apologize in advance. We're talking about Washington state law. I'm certain we have Washington lawyers in our audience. So please feel free to liberally sprinkle corrections throughout the comment section. Was there implicit bias or purposeful bias or unconscious bias exhibited in a particular case?

This is a plaintiff's case involving a motor vehicle collision. So a white woman rear ended a black woman named Janelle Henderson. woman named Janelle Henderson. The white woman, Alicia Thompson, admitted fault in the case, made no offer to compensate the Henderson, Janelle Henderson, for damages. And then Henderson sued. So all normal, normal kind of litigation. And so what ended up happening, however, is the jury actually returned a verdict for Henderson, but it was only for nine thousand two hundred dollars. And the case was appealed on a discovery ground that the defendant didn't provide information about an investigator that had hired or sufficient information about an investigator that had hired. And maybe that they're missing videos, missing reports or notes from this investigator. That's an interesting case for the plaintiff and the defendant, not interesting to us,

kind of a normal thing. But here is what gets really interesting. The court sent this back to the trial court because it claimed that there was evidence of bias in the court arguments made by the defense attorney. And what is this evidence of bias? So I'm going to read some things from the actual opinion. First, defense counsel characterized Henderson, the plaintiff, as quote, confrontational and combative in her manner of testimony. In describing her cross-examination of Henderson, defense counsel said Henderson was confrontational with me and called one of her answers Ms. Henderson's challenge. Later, she characterized Henderson as combative and not credible. Defense counsel also contrasted her description of Henderson's demeanor with Thompson's by using similarly charged terms. By comparison, my client took the stand, obviously feeling,

I think, intimidated and emotional about the process, and rightly so, and provided you a genuine and authentic testimony. Second, defense counsel suggested the only reason for the trial was Henderson's desire for a financial windfall. She said, it's just a simple car accident. It's a simple rear end. Why are we going through this exercise? And it seems pretty evident that the reason we're going through the exercise is because the ask is for three and a half million dollars. She also said that the testimony of Henderson's friends and families was potentially a sign of collusion. Here's the plaintiff's attorney, I thought, or defense attorney, I thought it was interesting also that all three of those witnesses used the exact same phrase when describing Ms. Henderson before the accident. Life of the party, almost like someone had told them to say that.

implicit racial bias, Sarah. And that this evidence was prima facie evidence of at least implicit or unconscious bias. And it was sent back for hearing where the defendant would bear the burden of proving that none of that was racially biased. I'm very eager to hear your thoughts on this yeah i think this is a big big problem if you can argue that certain words are racially charged which again i think people in the normal population would not believe them to be so for For instance, I'm a combative person. And the more you sort of make me feel like I'm cornered, the more combative I get. And it can be very unsympathetic. So for instance, even though I know this about myself, even though I know it's unsympathetic

to people watching, I am in front of a bunch of people and I feel like I'm being attacked. I will be unpleasant and it's unhelpful. It's like the more sympathetic people can feel for you, the better. And yet I cannot help myself. And so the idea that the word combative means that you have to throw out a trial result isn't great because all sorts of words can have racial overtones or gender overtones or height overtones. I mean, there's all sorts of immutable characteristics, some of which I grant you are protected and some of which aren't, but this seems like a really straightforward trial. And it seems like that's why we have juries. And I think jury selection is really important.

And making sure that the jury selection process is free from racial bias. Actually, we should be bending over backwards on that. But once we're in the trial, that's why we have juries. And if you're using language that the jury finds to have whatever overtones, whether they're racial or just insulting, or I mean, that's how you run your trial. It's just as likely to backfire on you as not. And to say that we no longer will honor jury verdicts, if you use words like combative or that the plaintiff wants a windfall, those are pretty standard arguments in small-ish dollar civil jury trials. Yeah. And so the reasoning, so the combative,

the language that she was combative was deemed to be racially problematic because it played into the angry black woman stereotype. was deemed to be racially problematic because it played into the angry black woman stereotype. The reason why the argument that the plaintiff was just seeking millions of dollars was mainly was in this case because she wanted to get rich was playing into the quote unquote welfare queen stereotype. Yeah, but isn't it a problem that you're allowed to make certain arguments like that the plaintiff is trying to soak you for money if the plaintiff is white? But if the plaintiff isn't white, you can't make that argument. Right. Well, and then the other one was, well, then the fact that the witnesses used the same language to describe the plaintiff was

that, well, playing into the stereotype that black people were kind of conspiring with each other. that black people were kind of conspiring with each other. But if you think about that, each one of those allegations is taking off the table extremely common defense arguments. Really common. But only for one race. But only for one race.

So this idea that you can't judge the demeanor of a witness in certain terms if they're black, or you can't raise the very common defense argument that the plaintiff is here because they want to get wealthy because they're black, or you can't use the fact that witnesses use the exact same phrase. Now, it's just a normal phrase, life of the party. It was, you know, that would be a kind of a common phrase that people might use to describe somebody who is the life of the party. But the idea that you can't even cast aspersions on the fact that multiple witnesses use the same phrase, if the witnesses are black, is a real problem here.

And what was really disturbing is that then in the court opinion, the court went back and framed all of that in the context of other cases where the racial bias was blindingly clear. But I kept reading it and reading these other references to other cases where the racial bias was incredibly clear and going, wait a minute, one of these things is not like the other. And then if you're bearing the burden of proving that your allegation of combativeness was supported by the evidence and not based on race or bearing the burden of proving that, how can you do that if you're trying to bear the burden of proving your way out of unconscious bias? And there's another issue about this unconscious bias concept or this implicit bias concept.

It is extremely contentious in the scientific literature as to whether this is a concept that actually has bearing on behavior. literature as to whether this is a concept that actually has bearing on behavior. Because if something is unconscious, it is not something that you're aware of, how much is it bearing on behavior? And there's, we'll put some of the literature in the show notes, but it's extremely controversial. The idea that, for example, implicit association tests and implicit bias training doesn't appear to have any impact on human behavior at all. And so what are we talking about here? Are we talking about saying to people that they have unconscious bias, but then when you point out there's unconscious bias, there's because it's unconscious, what are you going to do about it? It's a very strange concept. I could see some real constitutional issues popping up here.

Again, yes. The idea that you're allowed to make some arguments at trial, some very common ones, but only based on the race of the plaintiff or defendant or of the witnesses, yeah, that feels right up the alley of the Constitution. Yeah. I mean, I read the news reports about the case and then I thought, okay, it's because it's always fun to read news reports first, then read the case. Yes. To see what really important stuff was missed because in the news reports, they describe some of the evidence of racism. And I was thinking, is that what? Wait, hold on. And then I go in and I read the case and yep, the news report accurately characterized it. It was, there was not in fact any smoking gun at all. And to the contrary, these were the most normal plaintiffs. I mean, defense style arguments you can imagine. If you remove from the, if you remove from defense attorneys, the ability to say that black plaintiffs and

black plaintiffs only are motivated by a desire to get rich as opposed to seek actual justice. Yeah. As I said, there's, there's some constitutional issues there. Well, we'll see if anything comes of that case, but I have a feeling that won't be the last we've heard of it. I would agree, Sarah. I would agree. All right, one day we're going to talk about music, right? I guess, yeah.

Someday, way out there. I know. We got sidetracked by a premortem right after we condemned premortems. Did I tell you what Nate's favorite song is right now? Like there's temper tantrums in my house over this song when I won't play it on repeat or fast enough that I don't like, I can't figure out repeat on Spotify right now. So I just have to like replay it each time. It's Sonny and Cher's I Got You, Babe. Seriously. I am dead serious. And like his previous favorite song was an In Excess song.

I mean, these are super random. It's not like I'm playing all these songs all the time. I certainly don't listen to a lot of Sonny and Cher, I'll admit. But he's really, really into it. And there's like dance moves that go with it. Now, which NXS song? So which NXS song?

I'm blanking on the name, but it's the one that goes, da, da, da, da-na-na-na-na-na-na. You're one of my kind. Yes. He likes the da-na-na-na-na-na-na-nas. And that's a song from like my era. Yep. So that was his

previous favorite song Sonny and Cher have overtaken that so we are going backward time-wise um I

and like he likes these so much more than kids songs and by the way when I tried to move from Sonny and Cher I was like

maybe it's the era I was like how about some great Simon and Garfunkel screaming crying banging on the floor. Babe, no mommy, play babe.

I got you, babe. Okay, got it. That is fantastic. Well, I don't know if I've told you, but my granddaughter Lila's phase right now is that she has discovered Frozen as basically everybody does, right? And she has determined that she loves Elsa more than anything else. However, there's a twist here, Sarah. Elsa is not Elsa. She calls Olaf Elsa.

And we discovered that when she was pointing at Olaf and said Elsa. And then we pointed at Elsa and said, who is this? And she said, a baby. So Olaf is Elsa. Elsa is just a baby. And Anna is Anna. And we had some drama, though, when we got her an Olaf costume for Halloween. And she put on, she absolutely flatly refused to put on the Olaf costume for Halloween. And she put on,

she absolutely flatly refused to put on the Olaf costume. She was terrified by it. And the nearest we could tell is the reason is that she thought it was like dead Olaf. It's like dead Olaf skinned. And she was putting on Olaf skin. That is really creepy. I've seen Silence of the Lambs.

That's the bad guy. You don't want to be in the skin suit. Yeah. Did I tell you? So we were watching, Nate was very into rockets and rocket ships and astronauts. So we were watching the How Not to Land a Rocket Booster video. And it's amazing. And I thought I was like winning mom of the year

because we watched it over and over again. And every time that the rocket falls over, I'd say, Oh, try again, try again. And you know, it was going to teach him resilience and persistence and all of these really good qualities because at the very end of the video, they get it. And, you know, it's this two and a half minute video and we're watching it over and over. And then at the end we yelled together, they did it. And I'm like, yes, this is amazing. It's screen time with a purpose. And then after maybe the, like, I don't know, eighth time, 15th time watching this video, Nate starts narrating the video more than just my try again. And it becomes clear that he believes that there are people in the rocket

and that every time it crashes, all of the people are hurt and burst into flames. Oh no. So I was not teaching my son persistence. Instead, he was basically watching a horror film about astronauts dying over and over again.'ve stopped watching that video yeah a little bit older before he understands that's unmanned unmanned and so like i start screaming unmanned unmanned and that of course doesn't mean anything to him so um toddlers they're complicated what are you gonna do and and fun complicated fun and fun absolutely Alrighty. Well, eventually we'll get to the music conversation, but we always spend more time. We just love the law too much, Sarah. Okay. David assignment for you though. Top 10 songs and you can define what top means. Like,

is it just the playlist you're most likely to listen to or the ones that move you emotionally? Ooh, top 10 songs ever. Yep. Yep. Oh, that's a fun assignment. Yep. Okay. I'm on it. Okay. I am on it. Absolutely. Okay. Fantastic.

Alrighty. Well, listeners, thank you so much for tuning in. Please rate us, please subscribe, and please check out thedispatch.com.