Advisory Opinions - The Church of Voter Fraud

Episode Date: November 5, 2020

Twitter is brewing with wildly unsubstantiated claims of voter fraud as election officials in battleground states continue to count ballots. For today’s myth busters edition of the podcast, David and Sarah discuss the nitty gritty details surrounding ballot-counting processes and whether the conspiratorial claims surrounding voter fraud allegations have any merit. “If voter fraud is a religion for you,” Sarah warns, “go find yourself another pod today.” They wrap things up with a conversation about exit polls and some Supreme Court punditry. Show Notes: -The Sweep: “Your 2020 Election Night Guide,” Employment Division v. Smith. -Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here! Learn more about your ad choices. Visit megaphone.fm/adchoices

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It's through their Uber Teen account. It's an Uber account that allows your teen to request a ride under your supervision with live trip tracking and highly rated drivers. Add your teen to your Uber account today. You ready? I was born ready. Welcome to an election post, post, post election day advisory opinions podcast. Is that correct? In the military, you have D-Day and then you have like D plus one, D plus two, D plus three. I think this is D plus two. Okay. I've lost track of all sense of time and place due to the pandemic, 2020 in general,

now this election, and a baby who won't sleep. So welcome to a D plus two edition of the Advisory Opinions Podcast. sleep. So welcome to a D plus two edition of the advisory opinions podcast. The race is still undecided. There was a big oral argument in the Supreme Court yesterday. Wait a minute. I'm just going to go ahead and preview. There was a small oral argument in the Supreme Court yesterday that I thought could have been a big oral argument, but we'll explain that later. But we're going to open by talking about, yep, you guessed it, the election. So I just want to start, you know, under the motto of this podcast, Sarah, is give the people what they want. And the people want to hear from former presidential campaign managers' thoughts on what is happening in this moment. So I just want to know, top of mind,

in an atmosphere of absolute free speech, away from the constraints of the dispatch pod, the artificial, the chains of the dispatch pod, now in the free environment of advisory opinions. Sarah Isger, what are you thinking? You want my sleep-deprived, cranky pants thoughts? As long as it doesn't give us an explicit rating. Oh, okay. Then let me change one word. Get the F off Twitter, everyone. There you go. O-M-F-G. There. I good? Look, here's the deal with this pod today guys if you simply believe in voter fraud like it's a religion and there's nothing I can do to convince you that there is no possibility of the

type of widespread fraud that could change the outcome of a state that is in the 20,000 plus range don't listen to the rest of this podcast you're not going to like it because I'm going to be talking about you know how things work reality. That's not what religions are about. And I would never challenge the beliefs in someone's religion. So if voter fraud is a religion for you, go find yourself another pod today. This pod will, will be mocking your religion. Okay. So Sarah, before we get into the actual reasons for mocking the religion, who is the god of voter fraud? I don't know. Newt Gingrich today appears to be one of the Buddhas.

So, if you're lighting a candle to an icon or an image of the god of voter fraud, today it's Newt? Yeah, I think so. Yeah. Yeah, I think so. Yeah. I have seen some pretty voices who should know better spreading some really wildly unsubstantiated false crap, garbage. So you're correct. This is not, this is not,

if you've got the candle burning right now to the over under the poster of Newt, just hit pause on the iPhone, come back for the next podcast when we'll spend more time on Baby Yoda. Yeah, so here's some important things to caveat. One, of course, it's not that I'm saying that there have never been cases of fraud.

Quite the opposite, actually. There's lots of cases of fraud. For instance, that North Carolina congressional race that got overturned, they redid the whole race in 2019 over illegal mail ballot harvesting plenty of individual examples of fraud of people who shouldn't have been allowed to vote or voted under the wrong name etc there's people who have admitted to harvesting ballots and tossing them there's people who have admitted to pressuring voters into how they vote. All of that's true. No question. But that's not what people seem to

think is happening. They seem to think that 20,000 ballots were like brought in a mail truck to downtown somewhere. I don't know. Because if you know how elections work, none of these theories make sense. So first of all, David, let's back up for a second. What's happening right now in these states is that we are still counting the ballots. So for instance, in Ohio, for those who were with us on election night, Ohio looked really bad for Trump and everyone was like, what? How is this possible? And then over the course of the night, Trump won the state by seven. Now, why did it happen in that order? Because they had counted their early votes first that were heavily Democrat. And then they

counted their election day votes. They swung wildly for Trump. And then we got the result in the end. That happened with North Carolina, Florida, Arizona. Why, you ask? Because all of them counted their absentee ballots before election day. What's the difference with Pennsylvania, Michigan, and Wisconsin? I don't know why no one seems to be listening to me because I've been screaming about this since August. They don't count their absentee ballots in advance. They're just counting them now. It's infuriating, but please take it up with the state legislatures there. Mostly Republican state legislatures, by the way, who blocked them counting these ballots in advance so that they could make

this exact argument. It is infuriating to no end that this is being rewarded. Okay. So can I just interrupt one for one quick second? Yes. This is why, as a general matter, you speak with regret and not outrage, so that when you really are outraged- I am so outraged today. Everybody knows it. Everybody knows it. I'm outraged. So continue.

Okay. So that's the reason why this is happening the way that it is and why the states that were for Trump are now shifting so heavily toward the Democrats and why I've seen some people say like, well, all the states that are still counting suddenly moving towards the Democrats. No, that was baked into the formula here. Now, the other thing I've seen people say is this is really different than in previous elections.

This isn't what used to happen. Ah, that is correct. Why? Because Donald Trump told his voters not to vote by mail. In past elections, they divided by about 2% partisan-wise in any given state on the difference of who voted by mail and who didn't. Not this time. Donald Trump told his voters to go on election day. So for the first time, what we have is a huge partisan divide on the absentee ballots. So they are not unexpectedly going six to one, sometimes higher for Biden than for Trump. Again, similar to the states, the Republican state legislatures that chose not to allow absentee ballots to be open and counted before election day and are now complaining that it's taking too long and they're

counting these votes that are all going for Biden. And then for the president who said, please don't vote by mail to then be stunned when all the people voting by mail didn't vote for him, all of his voters came and voted in person because that's what he told them to do. Okay, so that's like the foundational issue we're walking into here, why it's a little different than previous elections and some of the ways in which it's not any different than previous elections.

Okay, that's the foundation, David. Are you ready for how counts happen? Yeah, before I get that, so what you're saying is, and not to quote Emperor Palpatine from the Star Wars saga, all is unfolding

as we have foreseen. You know, the one thing that's not unfolding as I thought is that for some reason the number of mail-in ballots being rejected is significantly lower than it,

I would think, should be. We'll get back to that. That is odd. I'll be interested to see whether the percentage that had been rejected in previous elections is within the margin that it would make any difference in these states. If so, it could make for an interesting podcast of why the rejection rate went lower the first time that we know the partisan outcome of the ballots. But generally speaking right now, it does not look like that margin would be big enough. Yeah, I mean, before we move on, I just want to say everybody was talking about this beforehand. Everybody was talking about this beforehand, that there were red states that allowed for earlier counting of mail-in ballots. And what they said is there was going to be a blue mirage early in those states, followed by a red shift.

That's exactly what happened in Ohio. To some extent, it's what happened in Florida, to some extent. extent it's what happened in florida to some extent but and then in the states that did not permit counting you are going to have the red mirage followed by the blue shift all of this stuff was talked about and we you know what you also talked about we also talked about that everyone's going to freak out about it in real time when it happens so it's so much worse than I thought it would be, David. Yeah. Oh, I mean, you have this. Totally invalid, like you should know better takes. The president saying stop the count when he's, if we stop the count nationwide right now, he would lose. What? Why? Why do you want to stop the count? You're down. Then you have an actual Fox anchor tweeting this. 4 a.m. dump, Wisconsin, 65,000 votes, 100% for Biden.

4 a.m. dump, Michigan, 138,499 votes, 100% Biden. Arizona poll workers forcing voters to use Sharpies and invalidating ballots. Trump leading in Georgia, North Carolina, Pennsylvania, Wisconsin, Michigan, a stop counting before the vote fairy visits overnight. Oh, and by the way, when they're not counting overnight, then they're upset that they're like lazy and not counting the votes.

That's the other funny part. But I mean, truly, nope. It is a religion if no matter which way something happens, it confirms your priors. That's my new definition of religion, by the way. Yeah, it really is remarkable. And people that I followed for years, they're just using terms like irregularities. When they're not spreading actual misinformation, there's terms like irregularities. What do you mean by irregularities?

Well, it is, in fact, irregular that a president tells his followers not to vote using a certain method. That's irregular, and that distorts the system. It does. It is imprudent when the legislature says, don't count ballots before election day. That's imprudent, and it results in an irregular process, but not a nefariously irregular process, but a process... Let me give another example of an unnecessary screw-up that we're all now paying the price for,

and that's Nevada. Nevada decided that it would be wise in a pandemic to send every voter in the state a ballot. Okay, I have no particular problem with that, although plenty of people at the time said, hey, we hear you, but it's not a great idea to change

your whole system of voting right before an election because the states that do mail voting, for instance, have been practicing this. They put in a lot of infrastructure and time to get this right, and you're just sort of one-offing it. It's like trying to do one of those great gymnastics routines from the Olympics. Actually, let me switch to diving. One of those amazing backflip, quadruple, whatever pikes, except you've never practiced it before. And what's going to happen

is that you're going to hit the water at a high rate of speed in an uncomfortable position. So Nevada did it anyway. So they sent mail ballots to every voter and then you could choose. You could use that mail ballot or you could show up in person. Here's the problem. Hilarious. Nevada didn't have a way to cross-reference who had already voted by mail and who had shown up in person. You have a funny version of, you have a funny definition of hilarious. It's hilarious. So now, before they release the results, they're having to go through and cross-reference all of this.

So it's taking a lot of time. Yeah. Cool plan, guys. Yeah. Okay, so your next, that was venting session one. Shall we move on? That's just the foundational side of this. Yeah, we haven't even gotten So your next, that was, that was, uh, venting session one. Shall we move on? That's just the foundational side of this.

Yeah. We haven't even gotten to like election day operations. So, uh, I, again, once again, see a lot of election day operations, uh, experts on Twitter. I'm sure that they have worked as many cycles as I have and are well aware of what is normal and what is not normal. So let's just go through it for them. There's the count. That's what we're doing right now. Absentee ballots that were received on or before election day, you just got to count those. And if the legislature says you

can't open them until 7 a.m. on election day and there's 2 million of them, it's going to take a while to open them all and put them through the machines. It just, it takes a long time. So that's the count. There's the canvas. Now, this is where you just do the math again. What happens a lot of the time, and spoiler alert, David, we just saw this happen in Michigan. they will report 81 ballots for Biden and 71 ballots for Trump. And it will turn out that they flipped it, that it was 71 for Biden and 81 for Trump. That's one version. Or they will

transpose them, that it's 18 for Biden and 71 for Trump. So they switch the eight and the one. Those are the two biggest types of errors. I know those sound dumb, but people are tired. that it's 18 for Biden and 71 for Trump. So they switched the eight and the one. Those are the two biggest types of errors. I know those sound dumb, but people are tired. They're doing the best they can to go as quickly as they can. And these errors, whatever you want to call them, typographical, anything else, they happen all the time. And so every time there's a count, there's then a canvas. That's not automatic, you know, like requested, whatever. You have to do a canvas. They just recheck all the math. They always find errors.

Now, because you turn in these numbers and these counts in batches, the errors will shift the vote count by a few thousand usually, but it won't shift the vote count by 20,000. So, sorry. Then, and only then, do we get to the possibility of a recount. So recounts are where we actually haggle over which ballots should be counted. So for instance, when the Supreme Court refused to hear that Pennsylvania case about whether ballots received absentee ballots received after Election Day, but postmarked before election day or having no postmark. They declined to hear that, but they said, keep those ballots segregated.

Now in a recount is where we'll haggle over those ballots. If those ballots could determine the margin of the race, of course, if that's the only thing we're talking about and it wouldn't matter if every single one of those ballots went for Trump, then we're not going to deal with those ballots at all. Okay, let's run through some states and their recount rules. Arizona, a tenth of a point margin, automatic recount. They also don't have requested recounts by the candidates, but a voter can challenge the results if they have evidence of fraud or some problem with the results, and a candidate can intervene in that case. Georgia, less than 1% a candidate can request a recount.

Pennsylvania, half a point automatic recount. Michigan, 2,000 votes or less is an automatic recount. That feels incredibly narrow. recount. That feels incredibly narrow. Or a candidate can request it if a recount would give them a, quote, reasonable chance of winning the election. Michigan, thanks for making that the messiest recount statute I've seen. Good job. Wisconsin, less than a percentage, a candidate can request a recount. So, you know, less than one point is actually pretty narrow. And I'm not sure when all is said and done how many of these states are going to be within a point where a candidate can request a recount. Well, in the case, so in Wisconsin, the winner has been declared and an estimated 100% of votes have been counted. So that means not 100%.

It means they haven't done the canvas, by the way. So the gap there is 20,534 votes. That's the gap, which is 0.6%. Okay. So then Trump can request a recount. Michigan is much more grim for him. The margin there is 50.6% to 47.8%, an estimated 100% of votes have been counted. And so that margin is about 149,000 votes. Not reasonable chance of overturning that.

Right. Nevada has been a subject of intense speculation it is right now it is at about a 12 000 or a little about 11 500 vote gap which is 0.9 in favor of joe biden uh arizona is 2.4 for joe b with a 69 or 68,500 or so vote difference. So that's where we are now. And that's without getting to Pennsylvania, which Trump still leads as of this moment by about 114,000 votes. Georgia, his lead is now down to less than 13 or less than 14,000 votes. to less than 14,000 votes.

Georgia seems to be headed, Sarah, to just an absolute eyelash difference between the two. Yeah, the good news on that is there's a pretty good chance Georgia won't matter. Right, right. If Pennsylvania, we keep waiting for the final count in Pennsylvania. If that flips, then the whole thing's over. If Nevada and Arizona stay blue, then the whole thing's over. But yeah, we're getting close. We

just have to be patient. And you know what helps patience, Sarah? Not being on Twitter. So this is the problem. There's just a lot of rampant speculation and things that turn out later to just have not been based in fact at all, or there's a really good explanation. I just saw two reporters, one tweeting that the Pennsylvania Supreme Court had ruled that the Allegheny County could remove Trump observers. And then another reporter say, no, the Pennsylvania Supreme Court has no pending cases and has not done so. I mean, if the reporters can't get what the Pennsylvania Supreme Court has done right, just be very careful believing anything you're seeing right now.

You know, that thing about the 138,000 ballots in Michigan turned out to be one of the typographical errors that I mentioned. They added a zero where they shouldn't have. All things that it's, you know, then people on Twitter were like, well, but they would have gotten away with it if we hadn't made a thing of it on Twitter. Like, no, actually the canvas would have caught that most likely.

So it also won't make a difference, it turns out. Just deep breath, everyone. Deep breath. And what's frustrating, I think, is I do understand why people think this looks shady. And that's why it's all the more infuriating that we could have had all of these counted ahead of time if the Republican-controlled state legislature in Pennsylvania, for instance, had simply agreed to start counting the ballots three weeks earlier, which is what the governor requested. But they got into a sort of a political tiff. And they just never reached an impasse. And so nothing happened. And then the whole country is

sitting here, maybe questioning the results of a presidential election. And that makes me really angry because it was people putting their own petty political niche issues ahead of the interests of the country. It is. And Sarah, I don't think that can be emphasized enough because if you had had responsible decision-making before this election, the whole narrative is quite a bit different. The narrative then becomes, wow, look how we handled things in a pandemic. Like we had the institutional capacity to do it. And in fact, we probably, probably, not certainly, probably have a much better sense of how this thing was going to actually come out. And we would have had that sense as early as like midnight on election night. Yeah. Yeah. I mean, think of

all the other states. We had Ohio. We had Florida. We had a really good sense of North Carolina. You know, and that's where things are, unfortunately. And Georgia is slow, but Georgia is going to be super, super, super, super close. That's kind of understandable,

although I do think they've been a little bit too slow. Agreed. But yeah, I mean, this was completely, and people should remember this, this rage, this meltdown, there was just this tweet in all caps from Mark Levin that Trump family members are promoting that reminder to Republican state legislatures, you have the final say over the choosing the electors, not any board of elections, secretary of state, governor, or even court. You have the final say, article two of the federal constitution.

So get ready to do your constitutional duty. This is an artifact. This kind of rage tweeting is an artifact of these political choices made before this election. And it's, you know, look, thankfully, as you have pointed out and you have tweeted, ironically, you've tweeted the irrelevance of Twitter. I have. Thankfully, as you have pointed out repeatedly, there are not a whole lot of people on Twitter relative to the voting public. But sadly, unfortunately, a lot of people who have

very large audiences are taking their cues from it, are amplifying what they see on Twitter. And that's making this moment far more contentious, skyrocketing distrust in already distrusted institutions. skyrocketing distrust in already distrusted institutions. Also, David, what if after 2016, when Donald Trump won Michigan by 11,000 votes, if Hillary Clinton had just told the Democratic-controlled Michigan legislature, you know, I see that.

You're telling me there's not some chance that those 11,000 votes were funny business? Russia-related? you know, Russia was rooting for him. There was misinformation on Facebook. You should just pick my electors instead. Oh, I know. Can you imagine the meltdown? It would have been from us, by the way, like justifiably, justifiably. And to be clear, these meltdowns are occurring with margins that are either matching the margins, for example, in Wisconsin, that were the Trump margins in 2016, that everyone was saying, well, now we need to really, this has shown how to reach the Midwest. And it flips around and people aren't saying, well, Joe Biden has shown how to reach the Midwest. They're going, fraud, fraud. And Michigan is a big, like Michigan isn't close, y'all. That is, I mean, it's close in the sense

of, you know, 2.8% is, you know, if you're going to look at it, you would say, man, you know, maybe next time we can make it up. It's not close in the sense of we were robbed close. And I don't know where Pennsylvania is going to end up. And I just I'm not even going to repeat all of the various tweets that I've seen speculating about it. I don't know. I don't know. I'll just watch. Well, and don't forget now it appears that Republicans will not have certain control of the Senate. The Georgia Senate race that was not a special election. So the special election, of course, was always going to be in January. But the regular Senate election between David Perdue and John Ossoff looks like David Perdue has fallen below 50 percent. So that will now

go to a runoff. And that's really bad news for David Perdue. But it also means all of that Republican celebration heading into really Thursday or Wednesday was a little premature. You know, Tillis hasn't been called yet. Perdue has to get above 50% in Georgia, and that would very much be the ballgame if they won the White House and both of those Georgia seats in the runoff. Yeah. You know what? I was watching that same thing because

at this very moment with, again, the best... Well, I'm just not going to repeat the back and forth I've just seen over Twitter between whether there's 30,000 votes left in Georgia or 50,000 or 60,000, because I don't know how to adjudicate that. But there are some votes left. And right now, Donald Trump is at 2,436,027. And Joe Biden's at 2,422,493. 2,422,493. And David Perdue is at 2,436,975. Now that's fascinating. As of this moment, David Perdue has gotten exactly 958 more votes, 48, 948 more votes than Donald Trump in Georgia. That's a fascinating't get above that 50 percent, it's going to be all. Can you imagine how much money is going to be spent in the Georgia runoffs? Hope Georgians like television ads about politics. Somebody just we should buy all the network time and just do. And save them.

Like have some nice music playing in the background. Oh, here's how whoever does this wins. Okay, are you ready for my idea, Sarah? I don't know why I'm not a political consultant. Hard to imagine some days. Wait. I'm just going to choose to take that as a compliment. So here's my, tell me, tell me I'm wrong. All right. Probably what? $200 million will pour into the coffers.

So if I'm say John Ossoff or David Perdue, I say, okay, I'm going to take all $200 million. I'm going to buy all of the commercial time between now and the runoff. And all I'm going to do is I'm going to say, I, David Perdue, am asking for your vote and I'm also not going to run a, there will not be another political ad. And I made this happen. Thank you.

Yes. Okay you. Yes. Okay. Good plan. Hey, can we go through some of the mailbox things that listeners have sent and try to knock these out? After we do that, remind me I need to trigger you on exit polls. Oh, yeah. That will trigger me.

Yeah. Okay. Here's one. Is it crazy to think that Arizona, Nevada, and Georgia are slow walking their counts on purpose because none of them want to be the state that puts Biden over the top and then have to bear the full force of MAGA and Trump legal team? Yes, that is crazy. That is totally crazy. So the reason that I read this question is actually because I think there is this belief that there's sort of these like Wizard of Oz, Grand Poobahs behind a curtain doing these votes when in fact it's more like an ant colony, like leaf cutter ants,

like everyone's bringing leaves into the colony. And so that conspiracy would have to be shared across thousands of precinct captains who are calling in their votes and counting these ballots. And then, of course, across three different states. So, yep, that one's crazy. That's easy to dispose of. Next. Next. next. I'm reasonably jaded about human moral frailty, but I just can't see how Democrats could produce that magnitude of forged ballots before they could even know which voters had or

had not cast legitimate mail-in ballots. And without leaving evidence that would be found in a recount, bringing in so many conspirators, someone would spill the beans. But do my Trump was robbed friends have a point? Is there any chance this was stolen? Was there anything actually suspicious about how the vote count played out? What exactly does the vote counting process look like anyway? Yeah, I mean, we've addressed most of this, but he raises some really good points about how would you forge tens of thousands of ballots and then place them in around all the precincts so that not a single precinct, of course,

could just have 20,000 extra ballots because if the turnout doesn't match what it should, that would raise suspicions, obviously. And then the number of people you'd have to have in on the conspiracy would be really large. This is sort of why I don't believe there are aliens out there. I just think too many people

would have to know about it. Sorry, why I don't think the government knows there are aliens out there. There are very well maybe aliens out there, I suppose. So yeah, the conspiracy would have to be far too big. And I continue this challenge to folks. I understand voter fraud. I understand it pretty well. Done three presidential cycles, two of which my only job was on Election Day operations. a voter fraud theory, not something in practice, not something anyone's been convicted of, a theory for how you would boost 20,000 to 30,000 ballots, let's say.

So I continue that challenge of someone to tell me how to do that. Yeah, I, you know, just pause on this for a minute because I know this doesn't work to debunk a conspiracy theory to somebody who's already in the tank for the theory. Because if somebody's already in the tank, even the act of arguing against it is sort of proof that you're in on it. that extremely tepid conspiracy theory bathwater. One of the good ways to deal with it is to try to war game out how it could happen. Like, how do you do this? How do you actually have, who is Maria Bartiromo?

Who is the vote fairy? And how did the vote fairy do their nefarious deed so that the election observers and the poll watchers and the analysts and all just couldn't, didn't notice it, didn't see it, but only you saw it. You saw it on Twitter. Well, and this gets to the, I tweeted last night.

And you know what? My tweet wasn't very clear. As I said, I'm very tired. So I'm going to be more clear on the pod. A Wall Street Journal opinion writer named Kimberly Strassel tweeted that the turnout in Wisconsin had been 89%, which was not feasible. That was way, way too high because election turnout in the United States has generally been between 60 and 65%. So all of a sudden, Election turnout in the United States has generally been between 60 and 65%. So all of a sudden, Wisconsin's at 89%. That is, if not proof, certainly some smoke of fraud.

And I tweeted, I am bewildered by this. Now, I didn't mean I was bewildered by the 89% turnout. I'm bewildered by her bewilderment at the 89% turnout, because what she is referring to is the turnout of registered voters. And in 2016, the turnout of registered voters, where Donald Trump won, was 88%. There were 138 million votes. There were 157 million registered voters in the country. Like, what? Now Now that 60 to 65% is the number of votes compared to the number of eligible voters. That's people who could register to vote if they chose to. They're over the age of 18, they're US citizens, yada, yada, yada. They meet all of

their state's requirements. Only about 60 to 65% of eligible voters in the United States choose to vote, but nearly 90% of registered voters vote. So yeah, that like people are just tweeting these things and it's Googleable, David. I don't understand why, why someone with like that many millions of followers would tweet something that like a Google search could check. And maybe more upsetting is why nobody who retweeted her did the Google search to check. It just like made it around the internet and everyone was like, yeah, 89%. That's crazy. And no one went back and looked at 2016. Yeah. I had, I had very smart people that I really like asking me about that Twitter thread. And, you know, this is another thing where you're sort of trying to find fraud by looking at data that you don't fully understand.

the Federalist that contained, was noting the gap between Republican support for House members and Republican support for Trump, and that there were Republicans who had apparently voted for House members, but that did not vote for Trump. And the gap was larger than people realized. And this was part of a long sort of, look at all these weird things happening. It would be mystifying if Republicans won more seats in the House, retained the Senate, and picked up state legislative seats, all while the same voters voted against Trump. Mystifying, Sarah. It's almost as if millions of gallons of ink haven't been spilled around the concept of a trump a republican supporter a republican who doesn't support trump i know it's it's amazing i mean

it has well and here comes the problem with twitter right so the original guy who tweeted this um you know he's a blue check mark he's on he lists himself as being on Fox News, CNN, BBC, etc. And as an advisory board member to the president's campaign. So he tweeted this 89% turnout. Okay, sure. So I responded, voter turnout registered voters in 2016 was 88%, 138 million votes, 157 million registered voters. His tweet got 11,000 retweets and 30,000 likes. My response debunking this got 84 likes. Yeah. And that's just how Twitter works. It's not, you know, I don't expect it to get that many likes, my response. But the point is like people, salacious things on Twitter move very, very quickly and get just accepted.

And be like, well, actually, here's the data with the census.gov link to it. Don't get as much attention. Oh, yeah. And right now, that's a big, big problem. It's always bad. But right now, it is so bad. And the misinformation. And it's not just Twitter.

It's social media. it's on television. The misinformation is so rampant because what's happening is what we have to do right now is we have to wait. We have to wait. There's going to be hours and hours at a time when there's no new information. And if nature abhors a vacuum, Twitter abhors it more than nature. TV news abhors it more than nature. So it fills information. It replaces information with speculation. And it's gotten to the point where I'm literally believing nothing I read right now. There was a viral tweet that, what was it, Allegheny County, that they're pausing vote until, completely pausing their vote until Friday and nobody knows why.

Pausing their vote, County. Yeah, but for that federal judge's order, that would have made a lot of people angry. Yeah, I mean, it's... They weren't allowed to count votes until Friday morning because of a judicial order. This was the county, of course, that due to their own negligence, one might argue, they sent out the wrong ballots to a bunch of people. So then they had to send out the correct ballots. And because of that, the whole thing ends up in federal court to determine how best to deal with this screw up where some voters filled out the wrong ballot,

sent it in, and then needed to go fill out this new ballot, blah, blah, blah. What the judge decided was you couldn't start dealing with any of this until Friday. So they said today, what they were working on was how to basically match up which voters sent in two ballots

and correctly sent in two ballots, by the way, because they were sent two ballots. They needed to perform that second one, even if they had already performed the first one. So yeah, they're not taking the day off. They're not taking naps. They're working to deal with how you do an automated count with tens of thousands of ballots like that. And the answer is you're going to have to mess with the machines quite a bit. of ballots like that. And the answer is you're going to have to mess with the machines quite a bit. Again, none of this is brand new. This happens in every election. The problem is that generally we know the outcome. Right. Right. Exactly. Exactly. And so this problem would matter a whole lot to a state rep race,

and that doesn't make national news. Right. Exactly. Okay. So now let's move on to something that I think is really important. And it's related to the polling stuff that we've already talked about, for example, in the Dispatch podcast and kind of talked a lot about it in the Dispatch podcast. There is going to be a huge amount after this is all over and we know who finally won the presidency, we know who controls the Senate, there is going to be a huge amount of curiosity about why did this happen and who voted for whom. And these are important questions to ask and important questions to answer because they matter a lot about, you know, where the country is going, answer because they matter a lot about, you know, where the country is going, what people believe,

what people want, matter a lot for, you know, what are sort of like all of the identity politics implications from the actions of different voting blocs. And what I have heard you say, and you're very kind to actually just say this in Slack and not respond to my use of exit poll data in a tweet. You have been adamant. Pay no attention to these exit polls that people talk about for years that break down the percentages of who voted for whom, what religious group voted for which person. percentages of who voted for whom, what religious group voted for which person, that you say garbage data.

Or maybe I'm putting words in your mouth. You say bad data. Oh, no, I called them garbage. Okay, okay. So explain, if I want to know, Sarah, I'm coming in and I'm the voice of the pundit crying in the wilderness. And I'm coming to you and I say, Sarah, I have hot takes to give. I have many takes to write. And I have to write them for four years, Sarah, about this election. And I want to know who voted.

How many evangelicals voted for Donald Trump? Sarah, I want to know who voted, how many evangelicals voted for Donald Trump. Sarah, I need to know that. I need to know how many African-American voters voted for Donald Trump and Joe Biden. I need to know if it was rich people that went disproportionately for Trump, or if there really is this revolution of the working class for the GOP. I need to know, Sarah, the takes, the takes that I must provide and they must be sourced. What do you have to say to me? Don't use the exit polls. Okay. So two reasons, two things you can do. One, Two things you can do. One, the exit polls do eventually get weighted by pollsters based on turnout and all the data that comes in

after elections of who voted. So they do get better over time. The exit polls that you're seeing now are absolute stinky garbage. Raccoons are turning away from these exit polls. What? No. I have very picky raccoons. I don't know about yours. They can get better over time. I would still tell you not to use the exit polls. And here's why, David. One, all polls have, not all, but most polls have about a 3% statistical margin of error

just based on how statistics work when you take a small group and extrapolate it to a large group. And then there's the survey bias margin of error. And that's what we just saw in all of the polls where we actually then got to compare them to a real outcome. saw in all of the polls where we actually then got to compare them to a real outcome. So I don't understand why anyone is talking to me about any polls. And then looking at the results in Ohio, Georgia, I mean, Michigan was eight, Wisconsin was eight. Um, and then you're saying, but the exit polls. Okay. Also the Also, the people who voted in person this year

obviously looked really different than previous years because of what we just said between mail ballots early in person and then election day in person. They skewed wildly compared to previous elections. That makes the exit polls this year especially stinky hot garbage. But some of the folks are actually doing real polls but calling them election or exit polls. I would just again point to the massive error in the polling, except this time you won't have anything to be plus 17 Biden is now giving you a quote unquote exit poll. It could be 17 points off, plus or minus the 3% of the statistical error. Is that significant? 17 points off? It feels significant. Okay, so then your question is, fine, I can't use the exit polls, what can I use? Okay, so then your question is, fine, I can't use the exit polls.

What can I use? Or are you saying I can eventually start to use them tentatively? Eventually, after they're reweighted? I mean, they could inform what you're seeing in the data. Okay. That's, though, what I guess I want to say is that operatives aren't using exit polls as some sort of gospel and then heading off into that direction. They're looking at the actual county by county data. So, you know, you look at Miami-Dade County, that's a majority Hispanic county that went much better for Trump than it had ever gone for a Republican. And clearly you can tell that he is doing well, not just with

Cubans, because that couldn't make up the difference, but in fact, with non-Cuban Hispanics in Miami-Dade. So then if you saw a weighted exit poll that gave you some insight into why that's happening, that matched with that county data that you're already seeing, okay, that would be interesting to me that you have a theory and the weighted exit polls are just a piece of your evidence for your theory. That's fine. You want to go look at those counties that I was pointing to in Wisconsin in the sweep. All of them stuck with Trump, every single pivot county. Again, take that data, look at who lives there, what their average income is per household, and then show me the exit polling that will back up a theory that you have that matches

that county data where the exit polling is simply one piece of your evidence. That's all to say, just coming to me with exit polling, even if it's weighted and saying, see, look, there was no gender gap and women voted for Donald Trump overwhelmingly. I need some other data that is making you think that. Exit polling alone will convince me of nothing. And what I keep seeing are people saying, this is super surprising because it doesn't match anything we've seen, but the exit poll says that it's true. That's exactly the stuff that you should set on fire and throw out the door. Right. And I guess what you're saying is to really know, you've got to do a lot more work. Yes. Yes. Things that people on Twitter don't

seem interested in doing. So if you have demographic data on a precinct, for example, and the precinct, you have an actual count. So the demographic data on the precinct is going to be probably pretty darn accurate. And then the count itself is pretty darn accurate. Then you can start to make some arguments about that. Like Kenosha, for instance,

is really interesting in Wisconsin because that went for Trump by 316 votes in 2016. And this time around, I don't have it right in front of me, but he won it more comfortably. He increased his lead in Kenosha. So if you then showed me an exit poll that said that Trump's law and order message

really resonated in places that had seen unrest. Well, that fits with what I'm seeing in Kenosha. On the other hand, if you showed me some exit polling that said Donald Trump's law and order message did nothing in those places, then I would say, okay, what else could explain Kenosha? And then I would start looking at income traits. Was this a particularly blue collar place? Well, no, not really. It's more suburban, you know, like you see what I'm saying? It's almost like a doctor trying to diagnose something like, well, you have a cough. Okay. Well, that doesn't mean you have pneumonia unless like I can find all this other stuff that backs up that you have pneumonia. A cough alone

could be a lot of things. Well, you know, and it's interesting as of now, as of now, Well, you know, and it's interesting, as of now, the exit polls indicate a slippage in evangelical vote for Trump. However, there's also evidence of slippage of support for Trump in southern suburbs of Georgia, or in suburbs of Georgia around Atlanta, which is even an evangelical Mecca. And so you might say, huh, why would we be seeing significant slippage in these sort of southern suburban areas? And then, oh, there's slippage there. You see in the exit polling for evangelicals. So then you would say, okay, could that be it? Or it would raise a question for you. free vengeance. So then you would say, okay, could that be it? Or it would raise a question for you. Yeah. And I'd want to see some of the gender gap numbers from 2016, 2018 to see whether it was just suburban women, for instance. I'd want to see college educated versus non-college educated demographics. Basically, you're looking to see all the different explanations that it could be.

And the exit polling can make you look at some things more and say like, ah, there's also this, potentially this religion issue. How many of those households identified that way? Yeah. Man, you're making one of my future pieces a lot harder. Sorry. Gosh. Hot takes are more fun

when they can just be hot out the oven. Yeah, man. I know. It's still worth doing though. The work is still worth doing. You want to talk a little bit about the Supreme Court? Yeah. And you know what? It's not going to be as much as I wanted to. Let me set the table for this. So if you're a regular advisory opinions listener, you know that the words, if the word exit poll is a trigger for Sarah, the case name Employment Division versus Smith is a trigger for me. This is the 1990 Scalia opinion that transformed First Amendment free exercise jurisprudence. It abandoned the test because is applied, how often it actually you know, strict in theory, fatal in fact, because it's a tough test for a government measure to overcome when it conflicts with the constitutional right. And so

previously, before 1990, the test that applied to free exercise claims was called the compelling, it was strict scrutiny, a compelling interest test. This was articulated in a case called Sherbert v. Verner. After Sherbert v. Verner was law for a couple of decades, almost three, Scalia repudiated that test in Employment Division v. Smith, and he essentially said that if I bring a free exercise claim and I'm challenging a neutral law of general applicability, and I'm challenging a neutral law of general applicability, then I'm going to lose. I'm going to lose. So that was a case involving the use of peyote. A person was fired for the use of peyote in a religious ceremony, and they said it wasn't a recreational drug use.

It was a religious drug use. I should have the right to use that. And the court said, no, a law prohibiting all drug use is neutral, generally applicable, you lose. And this is something that kind of launched the religious liberty bar in this country in an interesting way, because it was sort of a wake-up call for a lot of people that a part of the First Amendment had really been doctrinally devalued. had really been doctrinally devalued. And it's sort of at the genesis of a lot of the religious liberty conflicts we've seen. And smart lawyers have figured out a lot of clever ways around Employment Division v. Smith, such as, what if I phrase my free exercise claim

as a free speech claim? Yeah, and have one. But Employment Division v. Smith stands. So the court took a case, and it was argued yesterday, Fulton v. City of Philadelphia, where they actually said they were going to consider whether or not to revisit Smith. That was one of the questions presented. And the facts of the case were pretty interesting. This was a Catholic social services that was being excluded from the Philadelphia foster parenting program because it upholds Catholic teaching on sexual morality

and would not refer kids to same-sex couples or unmarried cohabiting couples. And so they blocked their participation. Case goes up to Supreme Court. I'm anticipating it because there's a big religious liberty winning streak. They took the case to re-examine Smith. I thought they were going to re-examine Smith. And I start reading the oral argument and right out of the gate, I think they're not

going to re-examine Smith. They're going to decide thisexamine Smith. They're going to decide this case under Smith. Why? Because the litigants said, hey, court, we don't think you have to revisit Smith. Am I missing something here, Sarah? Yeah. So the only thing I would note is that on the cert stage, when the folks representing the foster care, Catholic Charities Foster Service, made their case to the Supreme Court as to why they should take this case, they explicitly said, we're going to advocate that this is the case to overturn Smith. And so then the court granted cert. That took four votes, of course. And then at the merit stage they

just really backed off of it yeah and i think that um a the court does not like when you do that it feels like a bait and switch they took the case because you were going to make um the best legal arguments on both sides as to the continued validity of this major piece of precedent. And then you didn't. You just really wanted them to take the case. So I think that will hurt their credibility moving forward. It's one of these religious liberty groups. And I think that's a shame. Not quite sure why they did it. Second, the court also seemed very annoyed in a very Chief Justice Roberts kind of way, although he was not the only justice annoyed by this, that basically Philadelphia, the city of Philadelphia, had put them in this position. They said that because this could happen, they took all these actions, even though no homosexual

couple had been turned away, according to the Catholic services. And so several justices were like, so, you know, you didn't have to do this. This was overly litigious. You wanted to make this big splashy thing. The problem is that because of the posture of the case, they can't kick this on ripeness or mootness because the Catholic services are the ones that are in the losing position. So if they kicked it, it would simply stand and Philadelphia would win, even though they're the ones who sort of ginned up the controversy in theory in the first place by refusing to renew the contract with them. So there's a few just like procedural things that clearly are not good for this case. And that generally means you're not going to get

big law. You're going to get small law coming out of this. Yeah. So essentially, so the very opening of the case, the advocate for the Catholic Social Services says, the courts below made a simple error. They failed to understand where employment division versus Smith controls and where it doesn't. In other words, when there's a neutral law of general applicability and when there isn't. She said, Smith doesn't control when government uses a system of individualized exemptions or when it makes other exceptions that undermines its rules or when it changes the rules to prohibit a religious practice. Philadelphia made all three of those errors here.

So in other words, in plain English, she begins the oral argument by saying, you can rule for us without touching Smith. And here's an easy roadmap for doing it um but the problem is it's not easy because this case has such messy messy facts you know when um foster services used to be handled by private entities then the state came in and uh basically started to contract with individual entities. Well, now you have to contract to be a foster placement group. So does that mean you're a licensee or a contractor who's

basically a quasi-employee of the state? Those are really different things under the law. Letting someone do something is one thing, and I think then, um, the Catholic social services would win, but that's very different than I think the position that they're in, which is, is as a contractor of the state, basically the state is simply letting, um, someone else do this on the state's behalf. Uh, that's a big difference. Now, Amy Coney Barrett raised a great hypothetical at the end with Philadelphia's lawyer in which she asks, let me tee it up here. Let's imagine that the state takes over all hospitals and says, from now on, we're going to be responsible for hospitals, but we will contract with private entities to actually run them. And so there's a Catholic hospital that gets a contract

with the city to run it. And in fact, a Catholic hospital that gets a contract with the city to run it. And in fact, the Catholic hospital had been in existence before. And the contract with the state provides that you have to provide basically all medical procedures and there is no exception for abortion. And so they're saying this Catholic hospital has to provide abortion.

The Catholic hospital existed beforehand. And then the state moves in to the field. That's a really good example, actually. And I think that is exactly the problem that the court is facing and exactly how they will decide this. And it's teed up really nicely. Great first, not first oral argument, but first major oral argument for the new justice. oral argument, but first major oral argument for the new justice. But that, again, is not going to be getting to overturning Smith, David. That's going to get to this issue of a state moving into a private sector area and then taking it over and then having contracts. Yeah. And it's also messy because it's a state moving into a private sector area. And we talked in the Slack slash Zoom green room before this, comparing this to nationalizing an industry.

But that's not even the proper analogy because it's a state moving into an area, but then leaving the private entity as a private entity and saying, but to work in this area, you have to contract with us. Whereas a nationalization process would be, well, all hospitals are government hospitals now. No, and it's more, another example that they use in the oral argument was private prisons. Could you, running a private prison, say that you weren't going to take certain types of inmates or something like

that. And like, well, no, obviously that the state could choose not to contract with a private prison operating system that wouldn't take the prisoners type thing. So I think this is a much messier case than what the Supreme Court thought they were taking. I think they just thought they were going to take a nice little tee up on overturning Smith. I think this is going to get decided very narrowly on the facts. And even if Catholic Social Services happens to win this one, it won't be a real win. It will maybe be a very, very narrow, hey, go back. This one exception that Philadelphia has looks kind of shady to me when I was reading about it. It appears to apply, but then they say it doesn't apply. You know, I think the Supreme Court might regret taking this one now.

Well, I smell a Masterpiece Cake Shop style decision here. Not specifically doctrinally Masterpiece Cake Shop, but a case that presents a big issue that can be decided in a small way. And I could easily imagine one of these Kagan, Roberts, Kavanaugh sort of, and maybe even Amy Coney Barrett, because nothing about her questions indicated that she was chomping at the bit to overturn Smith. No, the only two justices that I saw that were firmly on Catholic social services were Thomas and Alito. Yeah, that was unequivocally clear, but, you know, Amy Coney Barrett played-

But Gorsuch, Kavanaugh, Roberts, and Barrett, you know, sympathetic, I'll say that, but not overly so. I could see 6372 on narrow grounds. So I'm going to make a tentative prediction. 6372 on narrow grounds, applying the existing doctrine, legal doctrine. Well, 6372 on narrow grounds with applying the existing legal doctrine in favor of Catholic social services, the existing legal doctrine in favor of Catholic social services, but a case that doesn't inform the larger issue very much, and then a couple of concurrences saying Smith needs to go, and that's that.

Yeah, I think it's going to turn around these exceptions, whether the exceptions are too broad so that they can't exclude catholic social services um but the catholic services are a contractor and that is different than a licensee issue so and the reason and just to give a before we move on from this just to give some broader context as to why this really matters is if, for example, the Democrats were able to capture both the presidency and the Senate, which, as we've said, is still apparently a live possibility, if they were able to capture the presidency and the Senate, then there are legal initiatives in play that could potentially overturn, at least in some context, the Religious Freedom Restoration Act, which the Religious Freedom Restoration Act was a law passed

after Smith with wide bipartisan support that at least as applied to federal actions, reinstates strict scrutiny. And so, for example, the Equality Act, which is designed to end employment discrimination against and other forms of discrimination against LGBT Americans, specifically has a provision that says the RFRA would not apply to the Equality Act, that RFRA does not govern the Equality Act. And however, if you get rid of Employment Division v. Smith and reinstate Sherbert v. Verner, then you have essentially RFRA at the federal and you have universally applicable RFRA back. And so a huge amount of the religious liberty sort of alarms about federal statutes, etc. would be eased if Smith is overturned. But as I said, as we both say, I don't think that's happening. Indeed. Well, don't forget, we won't have a podcast on Monday because of the what's next event.com that you should check out our post-election event. David and I will be there.

Jonah, Steve, David, who all are you interviewing? I am interviewing Russell Moore, head of the Southern Baptist Convention's Ethics and Religious Liberty Commission, which is sort of the religious liberty arm of the largest Protestant denomination in America. Russell Moore, Dr. Moore is a good friend of mine, great guy and really has his pulse on evangelical America. So we're gonna talk about what's next for evangelical America after 2020. Okay, if you reference the exit polls though, I will throw something at the virtual stage. I might do it just for that purpose. So I'm the virtual MC of this whole thing. So I can

just like shut off your Zoom, you know, like just close you out. I'm also interviewing Tim Scott, having a good conversation with Tim Scott. That'll be fun. And yeah, really looking forward to that. And we're going to get pretty wide ranging. And hopefully we'll have a presidential result by that time. So we can talk about that. We can talk. There is exit poll data indicating that Trump may have improved his standing with non-white voters. We may talk about that. We'll also talk about his police reform efforts.

So a lot going on. Sarah, what are you running aside from the whole thing? I'm talking to some of my Democratic operative friends, see what we learned about running political races, what worked, what didn't in a pandemic. Does that mean ground games are dead now if Biden won? Or does it actually mean that's why Trump was able to have such an impressive showing? Uh, so we'll go through all of that. And I'll also be talking to some Republican governors about what this means for the States. Of course, during the Obama years, it was the States that really led the charge, the Republican run States, uh, that led a bunch of litigation. So our AO listeners in particular should be jazzed up for that one because

I am. And there's just a lot of other... Liz Cheney's going to be there. Ben Sass. I mean, there's a good lineup, David. I'm excited. Yeah, it's a great lineup. Really looking forward to it. So what'snextevent.com.

We've already got a lot of people signing up, which is fantastic. And look, if you want to take your eyes off Twitter, you know it's a great place to put your eyes on the What's Next virtual, on whatsnext.com. That's a great place to put your eyes. I was really waiting to see where that sentence was going, to be honest. On what's next.com. That's a great place to put your eyes.

I was really waiting to see where that sentence was going, to be honest. Man, I'm feeling scorned. My idea of buying all the TV time and then saying, I bought all this time so you don't have to watch any more commercials has been mocked. The eye rolls. And then my pitch for what's next. Goodness. Yeah, my ability to regulate my facial expressions

is tied 100% to the amount of sleep that I've gotten. So David is getting like all my real facial expressions that I normally try to keep more contained. So I don't want to explore that too much because that's saying that I've been spared the eye rolls that you actually feel. I've learned. I mean, every woman out there knows the resting bitchy face stuff. a facial expression that actually shows the admiration and respect that I have for others even when I question some of their opinions.

Nice recovery. Nice recovery. And we'll just let that very short analysis of facial expression stand in for a robust cultural discussion, which we will have next podcast along with hopefully a lot more of real data to talk about and real results. So thanks

as always for listening. You've been great about rating us on Apple podcasts. Please go do that. If you haven't done it, please subscribe to this podcast if you haven't done it, please subscribe to this podcast if you haven't done it yet. And last admonition, don't read exit polls and don't read much Twitter. Okay. Hilariously, my husband just texted me a thing from Twitter that is incorrect about the vote counting. And I'm like, no, no, no.

It's breaking out all over. It's breaking out all over. It's breaking out all over. It's in my own house. Yeah, yeah. The call is coming from inside the house. Thank you all for listening and we will be back on Thursday. Bye.