Advisory Opinions - The Safe Harbor Deadline

Episode Date: December 7, 2020

U.S. federal law’s “safe harbor deadline” means that most presidential election law cases will be resolved by tomorrow, December 8. Today, David and Sarah discuss what’s next for Trump loyalists who have an unshakable belief that the election was stolen. Stay tuned for a conversation about changes to the citizenship test, a 9th Circuit transgender bathroom case where cert was denied, parental and student rights in public education, and why so many conservative lawyers don’t buy the Trump campaign’s legal strategy. Show Notes: -U.S. code on meeting and voting of electors, determination of controversy as to appointment of electors, and counting electoral votes in Congress. -“Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management” by Edward Foley in the Loyola University Chicago Law Journal. -“The ‘Safe Harbor’ Deadline Is upon Us” by Jim Geraghty in National Review. -Parents for Privacy v. Barr. -“Why Do So Many Americans Think the Election Was Stolen?” by Ross Douthat in the New York Times. -Brown v. Hot, Sexy and Safer Productions, Inc. -“Coronavirus: When a High-Trust Response Is Required in a Low-Trust Time” by David French in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

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We work with animal care experts and work towards a sustainable future. That's Dairy Farming Forward. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, David French with Sarah Isker. And we're going to be covering, of course, of course, we've now finished month one of election 2020, Sarah, and it's almost over. And we're going to explain what we mean by almost over. We're going to talk about changes to the citizenship test that the Trump administration is making. And it's a more interesting discussion than you might imagine. We're also going to talk about, I don't know, let's go real controversial, a bit about transgender bathrooms. There was a,

or transgender access to bathrooms of the person's choice. There was actually a Supreme Court case or a Ninth Circuit case where cert was denied. And that's going to lead us to a conversation, a little walk down memory lane and a discussion of parental rights and student rights in public education. And we're going to wind up by talking about an interesting question, a couple of interesting questions. And we're going to try to give some time to this. a couple of interesting questions, and we're going to try to give some time to this. And that is, why is it that people are believing a lot of these really crazy conspiracy theories about the election? And why is it that a particular branch of the conservative movement seems to have rejected them very decisively and very distinctly from all of the other branches. And that's all

I'm going to say, Sarah, because I want people to hang in there and listen to this whole podcast before that mystery is resolved. Which branch of the conservative movement is distinguishing themselves in this moment and why? Yeah. So anyway, so we're recording this on December 7th, 2020. Happy Pearl Harbor Day. Is that how you say that? No, probably not. I'm sorry. I don't think so. So we're recording this on Pearl Harbor Day. And tomorrow is notable. And tomorrow is notable. Tomorrow is very notable and quite relevant for the presidential election. We're coming up on these deadline days. And so tomorrow is the safe harbor deadline. Sarah, do you want to tell the folks what the safe harbor deadline is? Oh, David, I'm so glad you asked. So this all comes about because there's been a lot of news headlines-ish thing

in the last 12 or so hours that Samuel Alito, the Supreme Court justice who oversees the Third Circuit, and fun fact, David, as you know, each of the justices are assigned to a circuit. It's like a fun thing they get to do. I'm sure they love it. They do because each circuit has like hosts them and like feeds them their local cuisine or whatever at the circuit conference. Good times had by all.

So a lot of them have their home circuit, including Samuel Alito. He has the third circuit. So this Pennsylvania case that we have talked about before that we will talk about again in a minute, appealed to the Supreme Court. They wanted expedited review. And Alito initially set the briefing deadline for Wednesday. David, I bet you already know the problem with Wednesday. The Wednesday is after the safe harbor deadline. That's right. So then last night, all of a sudden, Alito moved up the briefing deadline to Tuesday at 9 a.m. within the safe harbor deadline.

So everyone's like, wait a second. Does this matter? What is the safe harbor deadline? And I am so excited to tell you all about it, David. Let's take a little trip down memory lane. In your memory, not so much mine, because you're old and I'm not. In the election of 1876, as you know. I remember it well.

Yeah. Yes. This was between two guys. I'm sure they were friends of yours, Rutherford B. Hayes and Samuel Tilden. They were not. Can I just interject here and say they were not friends of mine? Cause in fact, that was the first time Bill Crystal tried to recruit me to run. That would make sense because it was a really contested election. In fact, there's a wonderful book about it called Centennial Crisis. And

do you know who wrote this wonderful book? No. Chief Justice William Rehnquist. After the 2000 Florida recount, he wrote this small little book. Nobody seems to know about it. It's one of my favorites called Centennial Crisis, the election of 1876, because it comes down to Florida. Get the joke? Yeah. Yes. Okay. So in 1876, a really tight vote, lots of fraud, lots of intimidation, lots of violence, bad things happened all around. But perhaps the worst thing that happened was that four states each sent two slates of electors to Congress. Now, all the 12th Amendment says is presidential electors shall meet in their respective states and vote by ballot for president and vice president. And then they send their votes to the president of the Senate.

That's it. So when two slates got sent to Congress from four different states, Louisiana, South Carolina, Florida, and Oregon, that was, in the terms of the day, a hot mess. All right. So fast forward to 1887, so we're about a decade later, and Congress passes the Electoral Count Act. By the way, I mean, I have some questions of why it took 10 years to resolve something that was so obviously a mess, but I have a bigger question because the way in which they resolved it, it's still a mess, David. Okay. It's a really big, big mess. Okay. But one of the parts that they did was create this safe harbor provision. So all of this is now codified in three USC one through 16 or so. So three USC five, uh, really fun. I'm sure that everyone listening has it memorized. We say it together.

Um, I'm going to skip to the important part, but it basically says if a state follows their own law that they have already passed, so the law is already on the books, and they make a decision as to their slate of electors, at least six days prior to the time of the meeting of the electors, that decision, quote, shall be conclusive and shall govern in the counting of the electoral votes as provided in the Constitution. Cool. By the way, you skip right on ahead to Section 7, and it says that elections are going, the presidential electors make their decisions on the first Monday after the second Wednesday in December. So that's December 14th this year. Six days before that is the 8th. That is tomorrow. All right. So whoever sends in their stuff by today, you're good, shall be conclusive. So what does this actually do? And does it matter for Pennsylvania and so many other

questions, right? Right. You're so enthusiastic. I am. I'm really into this. I mean, you know how I love 19th century, late 19th century, especially presidential history. And this is just, This is just, ugh, this is so great. Okay, so this was meant to fix the 1876 problem. So the idea is that if you send in your stuff before the safe harbor, six days before the electors meet, you're golden. Congress has to accept that slate.

But David, you may ask, does that really- I may ask myself, but David. David. But David, okay. Sarah, David may ask me, how does that really solve anything? Because if you send in two slates of electors,

a la 1876, but they just both do it six days ahead of time, aren't we back in the same problem? Yes, we are. Yes, we are. Or what if neither one sends it in before the safe harbor? Similar. So that's where you go to this lovely section 15. And this is where I start having some real questions because they took 10 years to solve this. And the way that they solved that problem is the most gobbledygooky. It's not like it's lawyerly. It's like it was written with a wheel and the wheel has a lot of vans, such as, as is.

And they just all fit in there all over the place. And you don't know which one modifies which. So I'm going to give you the two theories on this, David, that are law review articled up. OK. And it will be in my newsletter tomorrow. There will be links. We'll put links in the show notes as well. All right.

If they send in two, so the Georgia governor sends in one slate for Biden and the Georgia state legislature sends in another slate for Trump and they both send them in tomorrow. What happens? According to this, again, not particularly written in English, it looks like the house and Senate have to agree on which one to count or it says that neither one counts. So then we would just toss georgia just wouldn't be included in the final electoral count on the numerator or the denominator cool fun if neither one makes it tomorrow but they both send them in on thursday let's say then what this says is that uh if both houses can agree on which one to count, great. But if they can't, then it looks like whichever one was sent in by the governor counts. There's just like a tiebreaker

and the governor wins. The controversy is that this governor tiebreaker thing is actually just the last line in section 15. And so it's not totally clear whether it applies to both scenarios or whether it just applies to where neither meet the safe harbor, because it'd be weird to say that if both meet the safe harbor, both houses can agree on one. That works. Or if they can't agree, then neither counts. But then the governor is a tiebreaker. Like, why would neither ever count then? I guess if neither was sent in by the governor, there's an argument for that. I'm including the law review article

that makes that case on a textual basis. The Congressional Research Service has argued, you know, that's not binding on anyone, but it's, you know, a bunch of nerds sitting in a room and we do like nerds and rely on them often. The Congressional Research Service believes that the governor tiebreaker only applies if both slates are sent in after the safe harbor provision. So David, you can see why the safe harbor provision

is important, because if one sends in before the safe harbor and one doesn't, the one that's sent in counts and it's done. We're done. And then the safe harbor provision, of course, controls that if both are sent in before, both are sent after in terms of how we're going to read Section 15. This has never been litigated. The closest we've ever come is in 2000. Florida, of course, asked for all this expedition in 2000 because they wanted to meet the safe harbor provision. They argue the case on December 11th. It is decided on December 12th.

And I bet you can guess what December 12th was in 2000, David. Safe harbor deadline. It was safe harbor day. Yes. What? Yeah. So that's the safe harbor provision. I would suggest, Sarah,

that if anyone wants a perfect example of how not to engage in legal writing, I would Google 3 U.S. Code Section 15. And the fact that you don't understand it, listeners, for those of you who don't have a law degree, for instance, is not because you don't have a law degree. It's because you speak English and the people who wrote this did not. It's really a remarkable, considering the magnitude and also considering the absolute mess of 1876. I mean, there was a real concern

you could have a flare up of the Civil War again. Yeah. And they took 10 years to write this. Amazing. Amazing. And we don't know what they meant. It reminds me of one of my favorite cases I ever had where we were representing a county in Kentucky

and there was a challenge to its pension plan for firefighters and police officers. And the challenge was that there was an improper interpretation that they were putting too little money into the pension plan based on an improper interpretation of the statute that governed. And when both sides looked at the statute that governed, it was so poorly drafted, applying conventional rules of grammar, it was not capable of being understood.

Those things happen from time to time. You just hope they don't happen when it comes to picking the president of the United States in a hotly contested election, which is the only time this section would ever become relevant. But I think the bottom line is, and I would be shocked if anything is different from this, if you're just sort of thinking about what is the significance of tomorrow, by tomorrow, I believe all 50 states will have, their electors will be certified and identified by tomorrow. That is happening unless there is an extraordinarily,

well, I don't know, unless there's like some sort of alien body snatch of all of the justices of the Supreme Court. Well, David, this is 2020. So let's not get too far ahead of ourselves. It is 2020. We cannot rule out either a zombie apocalypse shutting down the entire process,

or we can't rule out some sort of alien direct intervention into the synapses of SCOTUS. So barring that, the safe harbor exception is going to lock in, the slates are going to be identified, and then on the 14th, you're going to have a vote of the electoral college. So this brings us back to the Pennsylvania case, right? He's asked for briefing by 9 a.m. tomorrow. The safe harbor provision presumably lapses at midnight tomorrow. We don't have time zones. Don't ask me, but roughly, let's say.

So why? What's happening with this? So this is the case in which they have argued that the Act 77, which created mail-in voting in Pennsylvania, had to amend the Pennsylvania Constitution, and it didn't do so correctly. That's a state claim. And the Pennsylvania Supreme Court, David, of course, has said no. They've said latches. Yeah. And latches is this doctrine by which you're just too late and it's not fair, and you're silly and you did this on purpose. Is that fair?

Yeah. Bad faith delay. Bad faith delay. So it was passed in October 2019. They had all that time to do it. They even waited not just until election day. They waited until all the votes had been counted to file this lawsuit. They didn't file on November 4th.

They filed several days later. And so the Pennsylvania Supreme Court said, sorry, you waited to see who the winner was to then decide whether you wanted to say the entire election was invalid. Nuh-uh. That's still a state law matter. They've gotten this little federal hook based on a concurrence in Bush v. Gore, which kind of sort of says that because the U.S. Constitution says that the power to legislate the manner of elections is based on the state legislature, that kind of guarantees you this federal right that the state legislatures will follow their own law. Kind of messy. There

aren't five votes on that in Bush v. Gore. This isn't binding precedent. So A, even if the supreme court wants to take this they could kick this by saying there is no federal hook b if they took it they could say that um the uh state legislature did follow their own law that they defer entirely to the state supreme court which says that they did and that there's no problem here. Three, they could, in theory, take the case, reverse all of Pennsylvania's election and validate it, all of that just on the briefing materials. That's not likely. Or four, they could ask for briefing, meaning no one would reach safe harbor in Pennsylvania because the safe harbor provision does anticipate ongoing litigation of this kind. But I think the fact that he originally set the briefing for Wednesday, then it was like, ooh, I see why people are upset about that because it looks like I'm already saying that I'm not doing anything about this case and set it for Tuesday

at 9 a.m. certainly means that we're not going to have oral argument, that they will decide this on the briefs. They will either not take it or they will take it and kick it on jurisdiction and say that there is no federal jurisdiction. That's unlikely because that itself is a decision that's kind of monumental, David, to say whether the federal government kind of guarantees your state legislature will follow its own laws. I think they'll wait for a different vehicle for that. So most likely, based on all of that, I would say no cert tomorrow. And the safe harbor will go on happily.

Yep. I would agree with you. I agree with you 100%. I think no cert, no relief, everything rolls forward. And we're actually seeing some reporting that maybe perhaps there's going to be some of these election election challenges that some folks are seeing the handwriting on the wall. And also considering the fact that the lead attorney for the Trump campaign is now in the hospital with COVID. So we need to, you know, we wish Rudy well and a speedy recovery. But that's not good for your legal team when your lead counsel is in the hospital. And, you know, I wonder about the rest of the legal team. Are they going to have to be quarantining? I mean, maybe. I would suppose if they do what

they're supposed to do. But yeah, Sarah, that's a great explanation of the safe harbor, why it's important, why the fact that we didn't have it almost caused Civil War Part 2, why the fact that we didn't have it almost caused Civil War Part 2 and why it's going to, for all practical purposes, sort of shut this thing down this week. Where are we off to next? Are we doing the citizenship test

or are we doing transgender bathroom? Why don't we hit the citizenship test real fast and then we'll do transgender bathrooms? Well, so the Trump administration on December 1, U.S. Citizenship and Immigration Services began administering a new naturalization test to those hoping to become U.S. citizens. You have 128 potential questions that you can get asked, and those are all on the website. You need to answer 20 of those questions at random with a passing score of 12.

So when the test was released, some people are noting some changes. And David, one of the changes was highly relevant to our podcast. David. Yes. Who does a U.s senator represent who does a u.s senator represent he represents his state uh who does a member of the house of representatives represent the members of his district

the what of his district. The what of his district? What did I say wrong? The people in his district. The people in his district. So this is not a multiple choice test. This is administered by a person and it is up to that person to decide, David, whether you got both of those questions wrong

or both of those questions wrong or both of those questions right. But according to the website, the correct answer to both of those questions on who does a U.S. senator represent would be citizens of their state. Who does a member of the House of Representatives represent? Citizens in their district. Now, we just talked about how there is a current Supreme Court case that was just argued last week about whether for apportionment purposes the president can exclude

non-legal aliens from the count. But there is no case that I'm aware of where the president is arguing that he may only count citizens for that count, by the way. There's no discussion over whether he can exclude green card holders, for instance, from the apportionment or from redistricting. Yeah. Now, here's a question. I'm going to ask you a question now, Sarah. Yeah? When did all men get the right to vote?

All men? All men. The 15th Amendment? The answer to that would be never. Oh, okay. All. But, as in like, yeah, eight-year-old men can't vote and like some felons can't vote? Right.

Some states deny substantial categories of mentally ill people, many convicted felons. They affect, that's a lot of people. Same question was all women get the right to vote. So, you know, look, you can be nitpicky. I mean, you know the intent of the question I mean, you know the intent of the question. Yeah. You know the intent of the question, but just ask it correctly.

Yeah, these feel not quite right. Like, you know, who does a member of the House of Representatives represent? I thought the way that you phrased it was fine, right. Like, you know, who does a member of the House of Representatives represent? I thought the way that you phrased it was fine, David. The people in his or her district. Right. But to say that they only represent citizens of their district is at least a controversial opinion.

What about green card holders? You know, and then what about illegal aliens? That part, at least, is in a court case. But green card holders aren't in a court case. And I think that most members of the U.S. House of Representatives would say that they do very much represent the green card holders in their district,

regardless of whether those people can vote for them, for instance, the same way that they represent the children of their district, even though the children can't vote for them. So we know it's not just voters of their district. Right. Well, exactly. Exactly. Now, here's another one. One of the questions asked the respondents to name a power that is only for

the states, only for the states. And then the correct answers, correct answers included provide schooling and education, provide protection, police, and improves zoning and land use. We all know, as Ilya Soman points out in Reason, federal government has a big role in all those areas. I like that someone might answer federal, I mean, zoning and land use. Like I'm sitting here and I'm like, well, I mean, there's zoning.

I mean, you know, gosh. Which of course, how many zoning cases have gone to the Supreme Court, David, on federal grounds? And anyone ever heard of the Religious Land Use and Institutionalized Persons Act? One of the most important religious liberty acts ever signed by Congress, which directly overrides, that allows people to use a federal law to directly attack local zoning decisions and land use decisions. Okay, then there's one that's just incorrect. okay then there's one that's just incorrect uh name one document uh that influenced the u.s constitution and they list as one of the correct answers well they list for instance the declaration

of independence obviously articles of confederation certainly influenced it uh virginia declaration of rights for sure mayflower compact Iroquois Great Law of Peace. That's pretty cool. But it also lists the Federalist Papers and the Anti-Federalist Papers. David? Why is that wrong? Oh, Federalist Papers drafted after the Constitution. Right. Now, you can read this maybe question differently. Many documents influence our interpretation of the U.S. Constitution. No question. The Federalist Papers and the Anti-Federalist Papers influence that. That's why we all read them. But influence the drafting of the U.S. Constitution? No, they did not. Yeah. Now, you could argue that the Federalist Papers maybe influenced the adoption of the Bill of Rights shortly after the adoption of the U.S. Constitution, in which case that does influence the U.S. Constitution. Maybe.

Maybe I'm getting there. Yeah. Anyway, we're spending a lot of time on this. It's just it's just one of these things. OK, look, should we have a citizenship test? I'm fine with that. I'm absolutely fine with that. The citizenship test, should it be somewhat difficult? I mean, the fact of the matter is the old citizenship test, I think most actual citizens couldn't pass it.

One of my favorite statistics from a few years ago was back when American Idol was really a thing, more people knew that Randy Jackson was a judge on American Idol than knew that John Roberts was chief justice of the Supreme Court. And it's not like Randy Jackson was the famous one. No, no, he was not the famous. I don't know, dog. I don't know, dog. But yeah, And it's just kind of, it's like, can we please at least have the test ask questions correctly? Or at least questions that don't have ambiguity. Like, for instance, what are the rights listed in the First Amendment is actually much more clear than what are three rights of everyone living in the United States when then the answers that the proctor is given, there's only six. Well, I don't even need to tell you what the six are, David. Obviously, there's more than six rights for everyone living in the United States. Right. Right. Exactly. Exactly. So ask precise questions, give precise answers.

I mean, David, I'm not sure you and I would pass some of this because we would be like, well, rah, rah, rah. And they'd be like, well, that's not one of the six answers. I know, exactly. Yeah, I definitely, one thing I know for sure is, well, rah, rah, rah is not one of the six answers. Well, like on the three rights of everyone living in the United States, it lists the five in the First Amendment and the Second Amendment, but it doesn't list the Eighth Amendment or actually any of the other amendments. So, like, if you said to be free from cruel and unusual punishment, that would be wrong. That would be wrong.

What about right to be free from unreasonable search and seizure? That's not on there. Sorry. Oh, man. Only the first two amendments. I think part of the reason why this was somewhat controversial is it just sort of feels a kind of combination of incompetent and spiteful. I think the thing on the representation,

there's a reason that I started with that one because that one to me is political, whereas some of these are, maybe they're sloppy, maybe they're imprecise. Maybe some of them I'm being a little gotcha-y on, but there's no question that they changed from the previous test. Who does a US Senator represent? Who does a Congressman represent? They changed it to make it citizens for a reason. It used to be all people of the state or all people of the district.

Now, fine, maybe we can have an argument over they represent all people, but changing it to citizens is clearly not correct. Right. Let's thank our sponsor, Gabby Insurance. You know you're probably overpaying

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average. I bet that'd be nice to have in your pocket every year. If they can't find you savings, they'll let you know so you can relax knowing you have the best rate out there and they'll never sell your info. So no annoying spam or robocalls. You're probably overpaying on car and home insurance. See how much gabby can save you it's totally free to check and there's no obligation go to gabby.com advisory that's g-a-b-i.com advisory gabby.com advisory okay so shall we move on to something even more hot-button, transgender bathrooms? So earlier today, David, the Supreme Court rejected the cert petition from the Ninth Circuit case about, you know, out of Oregon, about these parents on the transgender bathroom issue. Now, this was a school district where it started with one transgender student, and they said that that student could use the bathroom

that that student wanted to use. But then it expanded so that all students could use any bathroom that the student wanted to use, regardless of how they identified. This caused some problems for the students. They circulated a petition saying that they didn't like this, that they wanted to go back to the way they were. And the school shut down the petition and said that there would be disciplinary action brought against any student that circulated such a petition and that any further efforts to undermine this new policy would, the case is a little ambiguous on this, the cert petition at least, sort of would be labeled as bigoted. Right.

So they brought this case. They argued several things. One was Title IX, hostile environment, right, David, for gender. Right. One was religious exercise. And then two dealt with sort of the rights of parents and the rights of students when at school. Sort of that, you know, in loco parentis idea.

Right. And so you and I were chit-chattering as we do about things pre-pod. And you said, this reminds me of a case from the 90s. And I thought, that's weird. What could have happened in the 90s that could possibly be like this case? And then, just tell me the name of the case again, David. The case, and this is one that I, as a law student, did some volunteer research during motion practice at the district court level, and here is the case. Ronald C. Brown et al. plaintiff's appellants. That's not very interesting.

Versus Hot, Sexy, and Safer Productions Incorporated. That's a, I mean, okay. Now, to be clear, I did clarify this was for high school, right? Yes. Yes. Okay. So you at least had to be a teenager. Yes. So this was a high school. So, and let me back up before I dive into some, because this is a family podcast, some of the facts of Brown versus Hot, Sexy, and Safer productions. Why am I talking about a case from 1995 that involves some early, it was a 1992 school assembly? I have a theory, Sarah, that a lot of sort of the decline narrative that we have about American culture right now is a product of

not so much that bad things, that things are getting worse. We just know about all bad things because, you know, for example, on a political intimidation, if you know, it used to be in the late sixties, early seventies, that there was more than a bomb a day, a domestic bombing a day. And a lot of people just didn't know about it because if there was a mail bomb in Des Moines, you weren't reading about it in Lexington, Kentucky, the Lexington Herald-Leader. But now thanks to Twitter, Facebook, etc., if a kid gets his MAGA hat knocked off his head in Burger King in Des Moines, you know about it immediately. Hey, David, speaking of that, by the way, did you know about that?

Because it's Pearl Harbor Day, I'm going to bring this up. Did you know that the Japanese actually bombed the contiguous United States during World War II many times? I did indeed. They were floating bombs over the United States that would drop mostly on the West Coast, mind you. Some of them detonated,

and one of them killed five people in, I believe it's Blythe, Oregon. And that's crazy. But to your point, in some part, nobody knew about it because there was U.S. government censorship. But even then post World War II, there's like, what, 900 bombs that they think got dropped in the United States, only some of which have ever been found. And nobody really knows about it. And it's Pearl Harbor day. And I think it's appropriate to mention that the Japanese bombed us long after Pearl Harbor. Heck, a Japanese submarine shelled part of greater Los Angeles after Pearl Harbor. I feel like we don't talk enough about that. Yeah. But with Twitter, man, can you imagine?

With Twitter, there would be no U.S. government censorship available because people would just be talking about it themselves. It'd be whack-a-mole for the U.S. government, or they'd have to shut down Twitter. Exactly. So anyway, a lot of people don't believe me. A lot of people don't believe me when I say this, but I say a lot of the things that you are really,

you have your hair on fire about right now were worse 20, 30 years ago. And so the facts of this case are really, this is the hot, sexy, and safer case. So the plaintiffs were ordered to attend a school-wide assembly at Chelmsford High School in Massachusetts. It was an AIDS education, at Chelmsford High School in Massachusetts. It was an AIDS education, AIDS awareness program. And let me just go through some of the things that the students were subjected to. They were told they were going to have a, quote, group sexual experience with audience participation.

There was a huge amount of, of course, very graphic language used to describe body parts, etc. very graphic language used to describe body parts, et cetera, et cetera. Um, the, the, uh, instructors advocated, advocated for approved oral sex, masturbation, homosexual sexual activity, condom use during promiscuous premarital sex, simulated masturbation. Um, I won't say some of the other stuff. One of the, yada, yada, yada, yada, yada, yada, yada, lobster fist. Yada, yada, yada. Had a male miner lick an oversized condom with the presenter. After which she had a female miner pull it over the male miner's entire head and blow it up.

Yeah. I have questions of why you had to blow it up. Is that something that I don't... Okay, I don't know. I have no idea. And then several more yada, yada. Maybe I needed to attend this class. Jeez. Several more yada, yada, yadas. I mean, it was way over the top.

And so these parents and students sued saying that this was sexual harassment. They sued and they said there were procedural due process claims, substantive due process claims, religious liberty claims that they were essentially subjected to this program that blatantly advocated activity that was immoral

under their religious beliefs. And they won, right, Sarah? So I asked you this assuming that they'd won. No. They did not. They lost. Which is crazy.

I mean, the harassment stuff alone, like telling a student he has a good butt, that's just like, is harassment. Oh my God. Yeah. So I have two, there's two aspects about this case that I think are interesting. So going back to hot, sexy and safer, the 95 case, one is I'm not so sure it would come out the same today

on the sexual harassment point, on the sexual harassment point. I think the law of sexual harassment has changed a bit compared to where it was in the early 1990s. So I'm not sure that it would come out the same way on the sexual harassment point. But what is relevant here and what is relevant for the transgender bathroom case is that once you deliver your children to school as a parent, your ability to continue to reach into that school to determine what they will see and what they will be exposed to is very limited.

Very limited. Now, schools will often grant parents more power than maybe they're specifically required to grant them under law, permission slips, etc., etc., and those are political decisions that are often made after parental outcry. So one of the things, you know, about like the hot, sexy, and safer situation, even though they lost the case, there was some outcry as a result of this. And it's been a long time since all this happened, but cases like this, this hot, sexy, and safer case caused school boards to say, wait a minute, we don't want to be doing this. But that wasn't a legal reaction. It was a political reaction. And so the cert denial

in this Ninth Circuit case on the transgender bathrooms says two things to me. One, argument that I've made before about the court with Amy Coney Barrett on it, it's going to be evolutionary, not revolutionary. This is a cert denial that you would expect. And by the way, to be clear, they obviously lost at the Ninth Circuit. So this means that right now with the cert denial, they have exhausted their remedies and this school will mandate that every student

be able to use the bathroom of his or her choice and that students cannot protest it or circulate petitions against it or speak out against it. And that is,

and mind you, I'm accepting the facts as stated in the cert petition by the people who lost. So maybe it's a little more interesting than that. But by denying CERT, that's over. That school district now will be able to do that moving forward. Yeah, exactly. And so one of the, and in fact, it's sort of, if you go back to early 1990s and hot, sexy, and safer. You just have to stop saying that. I can't. I'm so sorry.

I know. I know. You say it so matter-of-factly. Hot Sexy and Safer Productions Incorporated. We'll just say HSS. Okay. So you go back to cases like this. Things like this were the impetus, were part of the impetus for the school choice movement, for charter schools, for homeschooling, for increased private schooling, vouchers. I'm handing my kids over to this school, and then once I'm handing my kids over to this public school, there is a judicial sort of like wall of separation that is then locking down, separating me from parenting my child while they're at this school,

and that the school is going to have a big and loco parentis role. So some time ago, I did an article in response to, a long article in National Review in response to all these people, Sarah, who say, what has conservatism conserved before Donald Trump? As if the history of the conservative movement in America was just loss after loss after loss after loss until Donald Trump came around and helped us win. Well, the growth of homeschool, I mean, of private schooling, homeschooling, charter schooling is from the early 90s. When this is sort of, you got this sort of, it locks in, wait a minute, we don't control our students' education in these public schools.

The first charter school opened in 1992. Whoa. Yeah. Half a million students are enrolled in first. Okay. 1992. First charter school. By turn of the century, 400,000 students in charter schools.

By 2015, 2.8 million. Yeah. Last year, a half million students were in private school choice programs homeschooling in 1990 there were 275 000 students homeschooled by 2016 2.3 million and in 2020 it's all of them but i-dum-chung. Right. There you go. Wow. So this is how cultures respond to laws they don't like. It's not just, I'm not saying that that case was the, it was that case and cases like it and incidents like this multiplied across the United States of America.

And by my count, so you're talking about right there, you're talking about 6 million people a year in homeschool, charter school, or private school choice programs. And that's not even including the people who are in private schools that are not in school choice programs. And so people voted with their feet and they're still voting with their feet. So David, here's my question to you. Are you surprised that the court didn't take this case? And if you're not surprised, do you think there's another case a la this case that is more likely to get four votes? I'm not surprised they didn't take this case, um, because this came to the court through,

uh, through a, uh, you know, essentially a parental rights kind of challenge. Um, the other kind of case that they might take is a sort of a cleaner, does Title IX require the transgender bathroom at, you know, the sort of the access of people according to their gender identity rather than their biological sex um i think that's the kind of case that they may take as to whether or not trans title nine requires a school to accommodate gender identity rather than biological sex and bathroom access not one where where a school chooses to open access on the basis of gender identity and not biological sex. Does that make sense? Yeah, it does. I wonder also, we've talked about sort of these in-school bathroom issues, but the sports issues seem

a lot more interesting to me. Yeah. Whether and how we deal with that when there's, you know, money on the line, college scholarships on the line, things like that. Uh, the injury seems more concrete to me in that case.

And it makes for a cleaner vehicle. Yeah. You know, for instance, the folks in opposition to this case that we're talking about are saying like, you know, this case presents an abstract disagreement, not a concrete case or controversy. No student who used or could have used a restroom or locker room at the same time as student A has ever been a party to this lawsuit. At this point, no individual students

remain in the case, you know, so they're dealing with sort of these justiciability issues, these injury issues. Lujan versus Defenders of Wildlife coming up several times. The concrete and particularized actual or imminent injury. But if you have one of these sports issues, it will meet all of that really easily. easily. And after Bostock, where Justice Gorsuch, writing for the majority, said that Title VII covers transgender, I do think it's a matter of time. I don't think they're just going to keep chucking these, but they're looking for the right vehicle. And the conservative folks, Alito and Thomas, people who you'd think would vote for this, for instance, they're able to count to five also, not just four. So they don't want to take a messy case that the chief, for instance, you lose right off the bat because he's going to kick it on injury.

Yeah. Yeah. Because if you look at it, even if you take even with Amy Coney Barrett on the court and Ruth Bader Ginsburg not on the court, it's still a 5-4 Bostock majority. So, no, so this does not surprise me at all. But I do think there might be a Title IX case in the future saying, does Title IX require school districts to do what the school district did? And the sports thing, that's going to be very interesting, Sarah. That's going to be very interesting because I think a part of this is self-limiting in the sense that I just don't think there's going to be,

in the day-to-day basis, it's going to be pretty rare for people to see a biological male competing in women's sports. It's just not going to be pretty rare for people to see a biological male competing in women's sports. It's just not going to be something that people will see very much. But to the extent that it happens, and it happens in sports that are more contact type sports, we're one, and I hate to say this, we're one bad injury away from a monumental lawsuit. I mean, you know, people are not going to sit there and say, oh man, you know, I can't believe how horribly hurt my daughter was by this other competitor.

Them's the brakes. Right. They're going to sue the school district, not the student who's going to be judgment proof, basically. Right. Right. They're going to sue the heck out of the school district, not the student who's going to be judgment-proof, basically. Right, right. They're going to sue the heck out of the school district. Just sue the heck out of the school district. And so I think some of this is, and you hate to say this, I think some of this is going to be self-limited just by the reality of parental responses to competitive imbalances. Interesting. I think it'll be a scholarship case.

Interesting. Not an actual, but so-and-so won the wrestling state championship. Because of that, they received XY wrestling scholarship. The student who came in second received a lesser scholarship.

There's your concrete injury and you're off to the races. Yeah. No a lesser scholarship there's your concrete injury and you're off to the races yep no i think there's many there's many ways this this could play out but yeah i think that's certainly one of them as well um but yeah the so the the ninth circuit the key language from the ninth circuit decision which echoes back to hot sexy and safer productions uh the 14th amendment does not provide a fundamental parental right to determine the bathroom policies of public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it.

So this is, again, when you walk through the schoolhouse doors, a lot of your inherent parental authority falls away. It just falls away. And that's a reality that parents ability to do so vote with their feet. And one of the reasons why one of the most successful aspects of the conservative movement has been the school choice movement because it connects with our sense of equity and our love for our kids. Love for the kids, you want to direct their education as best you see fit.

And sense of equity, why should that be confined to parents with financial means? Shouldn't all parents have those same rights? And I've said this before, David, but I really think 2020 is going to be so interesting because so many people treated public schools like the default. And because of the choices of, frankly, a lot of the teachers unions in shutting down these public schools, you know, All schools shut down in March and April and most in May. But coming back in the fall, a lot of the public sector unions said no, and a lot of the other schools said yes. And so you had a lot of parents then being like, okay, the public school no longer even exists as far as we're concerned because my five-year-old

can't do Zoom kindergarten. So we're looking at private schools, charter schools, homeschooling, pods, et cetera. And all of a sudden when public schools aren't the default, we're having a very interesting social experiment in the country. And while I imagine a lot of students will go back to public school next fall when we've all had the vaccine, I bet there'll be significant drop-off. Some of the numbers are just so interesting. I mean, tens of thousands of students per state are not going to public school right now. And those parents are now like, oh, well, some of them are going to be like, you know what? I can't afford this private school, or I didn't like the pod, et cetera. They'll go back to the public school. But some of them are going to say, I never would have tried this otherwise,

but actually this is much better for my individual child. And that's just going to be an interesting side note because public school funding is per child. It is not per school. And so if they lose matriculated students, they lose funding. Yeah. And then you have things like the Chicago Teachers Union tweeting and then deleting a little bit later after they got, oh, some pushback. They tweeted, the push to reopen schools is rooted in sexism, racism, and misogyny. Hmm. Interesting. David, I have a question for you.

Yes. What's the difference between sexism and misogynism? You know what? I was going to ask you that question, and I was expecting a long answer rooted in the distinctions between first and third wave feminism. I'm going to give it some thought. I haven't thought about it before this moment. And clearly in some contexts, there would be a lot of distinction. But in this context, I'm not sure I follow what the distinction is they're referring to, but okay. Yeah. I mean, and when you're talking about an urban school district that is going to be disproportionately minority students, where people are trying to get an education for them, that is not racism. That is not sexism. That is not misogyny. I know. I'm still upset that, for instance, in the school district we're in, and obviously,

the brisket is far too young to be going to school. I mean, he's weeks away, David, from being able to read. So we've got some time. I'm kidding, obviously. But the public schools are still shut down. And then they sent out a letter to all the parents, basically just saying, we're disappointed in you for having these private pods because this is only available to wealthy parents who can hire a tutor. And then they're putting, you know, five or six students together in one of the parents house. The tutor comes over and teaches those five or six students. So it's basically school. I was stunned because obviously sending that letter is going to do nothing except virtue signal on behalf of the school district at best. No parent is going to say, oh, well, I got a tsk-tsk letter from the school district, so we'll stop doing the pod.

When instead the value add that all those administrators and teachers who aren't going into school could work from home, the value add that they could have done was to create a spreadsheet, if you will. And the spreadsheet would be all the parents who want to volunteer that they are running a pod right now with, you know, let's say five students and can accept seven, you know, two more students make a seven student pod and all the students who would like to join a pod, but who can't afford one or don't have a parent who can organize that. That would have been a value add because then we could have taken a lot of lower income kids who are not benefiting from the pods and all of the wealth that that takes and the

parental attention, but also can't go to their public school and aren't doing well in Zoom classes. Maybe they have ADHD. Maybe they just don't learn that way like me. I could not possibly learn on Zoom, David. Not even an option. No, I know. And so we could have gotten so many of those students into these pods, but instead the school district just decided

to like tis-tis the parents, accomplishing nothing. Yeah. You know, I keep going back to this and I'm going to keep going back to this. And that is, look, there are a lot of decisions that were made in March and April that were very understandable and defensible because there was so,

so much we didn't know. There was so much we didn't know. I, I mean, I'll never forget as long as I live driving with my two college age kids to a deserted University of Tennessee campus and by appointment moving my son out of his dorm room. And I didn't feel an ounce of resentment about that. It was sad. I hated it that his freshman year of college was ending like this and everyone was Zooming, but we just didn't know what we were dealing with. We know a ton more now. We know a

lot more. And our policies are not often reacting to our knowledge. And one of the things we know, and Fauci has said this, is that the transmission in schools, especially amongst kids, that's not one of our big concerns. And in all of these trade-offs, and there's a lot of trade-offs, you're not causing a toll in human life when schools are being opened. But when you are closing schools, you're causing a real toll for the kids. There are other things that we know spread the virus far worse and in a far more deadly way than schools. And we're still not, in some jurisdictions, not all, schools are open where I live, in some jurisdictions and not all, we're acting as if it's still March or battling over whether it's still March or April. And I think that these are the kinds of things

that cause people to lose confidence in their leaders when, you know, one of the pieces I wrote back in the early stages of the pandemic is, this is a virus that requires a high trust response and a low trust time. And there's an awful lot of public figures who've done nothing to build trust during this time. And it's sad and it's costing lives

and it's costing people's education. Very frustrating. See yourself buying a home one day? Do future you a favor? Open a Questrade first home savings account and help that future come faster. The FHSA is a tax-free account where all your investment gains are yours to keep and put towards your first home. With Questrade, you can open an FHSA online. No bank appointment needed. It's easy and only takes a few minutes.

The sooner you get started, the more time your down payment has to grow. Open an account today at questrade.com. Speaking of frustrating, Ross Douthat wrote an op-ed that's making its way around the interwebs this weekend. It was entitled, Why Do So Many Americans Think the Election Was Stolen? I mean, it's a good title. Tells you exactly what it's about. Yeah. Yeah. I love a good non-clickbaity title. Right? So subhead, looking for the reasons behind a seemingly unreasonable belief. And David, you have spent a lot of time thinking about this as well. I open the floor to you. So yeah, I'm going to talk about his op-ed and then we're going to spin it off

into the mystery conservative segment that has by and large rejected this. I thought it was a really good and it was very charitable. I think you can read it and say it was very charitable. And he kind of broke people down into specific groups. One, he says, is the conspiracy-curious normie.

And he makes a point that I think is really a very good point. Conspiracy theorizing in America has a... There's a long history of this, where millions and millions and millions of people sort of live with, I wouldn't call it sort of like an animating belief in various conspiracies, but with sort of what you might call a passive belief. Like you might be a nine 11 truther, but it's not the most important thing in your life. You know, you know, we talked about this the other day when I said, there's the, there's a bucket of Republicans who are like, yeah, election was stolen. What was the Alabama score? Yeah, I mean, I have this background cynicism about political leaders and I have sort of this background skepticism about everything and maybe even a background belief that they lied about the Kennedy assassination and they lied about 9-11 and there's more to the Russian hacking, you know, whatever.

But it's not like the dominating fact of life. And his point is, you know, this is, you know, this is something that's just going to be there. And maybe it's worse as a result of pandemic and cocooning, but this is just kind of a background fact of American life.

But we've gone beyond sort of the conspiracy normie. And then he talks about the outsider intellectual. And there's kind of this group of people and mainly online, they're really smart. And their brand is they're going to basically disbelieve everything they're told. It's like the opposite of standing on the shoulders of giants. It's punching giants in the face and trying to figure it out yourself.

Exactly. Exactly. So they're just going to disbelieve. And sometimes disbelieving is right. You know, sometimes it's right. So, you know, if you're going to be inherent in, for example, being inherently skeptical of, say, the stories you're hearing about the coronavirus in China, pretty, pretty rational. But a lot of times what the outsider intellectual is like, they get a reflexive oppositionalism. Reflexive oppositionalism.

And it's such a reflexive oppositionalism that they have determined the outcome of their inquiry before they even launch their inquiry. Because they are essentially saying, whatever you say, I'm going to take the opposite of it and then I'm going to prove it. And then he also talks about sort of the recently radicalized that people who are extremely skeptical about lockdowns, very angry then about the summer uprisings. everything this in 2020 has been a as uh uh douthat describes it as stage managed pre-arranged escalation of the establishment's battle against trump impeachment lockdowns that were unnecessary

in their view um uprising where everyone then joined in these these protests even though they just told everyone to lock down and now the vote so that's those are his his various categories uh what what are your thoughts on on ross's diagnosis i think they're interesting categories within the conservative movement and maybe just within the american voter base in general like instead of defining people as right or left, maybe that's a more interesting way to talk about voters sometimes. Because I think that one thing that I feel quite confident of in the last four years is that policy doesn't matter. And so if it's really a team sport and that's all that's determining who does what, and I think that's a little simplistic, then we should come up with new ways to group voters, and maybe that's a new spectrum that we could use.

You didn't mention the moon landing, and I am really curious whether the U.S. government had a plan in case it didn't work. It's not that I don't believe we landed on the moon necessarily. It's that it seems like we would have said we landed on the moon even if we didn't. At the time, right, we really needed to have landed on the moon. That was very important to our national security, really. So I think we did land on the moon and that turned out to be a good bet. But if we hadn't, surely there was a plan to fake the moon landing,

and that's the plan I want to see. So all of a sudden, Sarah has outed herself as a conspiracy curious. But you're not a normie. You're not a normie. Okay, but back to the groups. So yeah, I think that we're also treating those as all equal groups, and they're not.

And I don't mean equal morally. I mean equal size-wise. Right. I think that the vast, vast majority, vast majority of people who even fall into these categories say, you know, there's a lot of questions, a lot of shenanigans. But, you know, that's the way it is usually. And they move on. So I guess that's the first group, my moon landing group.

I think there's actually- Your moon landing people. My moon landing people. Rise with me, moon landers. We didn't have microwave ovens, David. You got to be kidding me. We didn't have T89 calculators like I had in high school.

Big discussion between the T85s and the T89s, by the way. And 86s, I guess. You had calculators? We had abacuses? Abacai? I don't know. Slide rules.

We had slide rules. But standing on the shoulders of giants or punching shoulders, punching giants, sorry, punching giants people, I think are clearly the smallest group. They're very on Twitter. They like hearing their voices heard a lot.

And they get a lot of credibility on Twitter because they are smart people who can make sort of these intellectual sounding arguments. But I think there's very few people who can make sort of these intellectual sounding arguments. But I think there's very few people who fall into that category. And then there's the like full on, full on.

I think some of those people are doing it for entertainment as well. So while I think that group may be slightly bigger than the all experts are stupid group or let me rephrase what I'm characterizing that group as. It's not that they think all experts are stupid. It's that they are immediately in opposition to experts unless and until they have developed that expertise themselves on Google, basically.

Yeah. I'm not being more charitable, just differently less charitable. Yeah. And I find it really frustrating because there was, of course, epidemiology Twitter six months ago where all of a sudden everyone could all of a sudden just get a PhD in epidemiology in a few hours on Twitter. And then now there's a post-election Twitter where everyone now is an election lawyer who's done a bunch of recounts, I guess, and knows whether ballots should be in suitcases. How else do you think we move ballots around, David?

Where do the ballots fly? Do they have wings? Are they centipedes? Are they walking? They're in boxes. They're in suitcases. That's how you move them. So all of a sudden, I'm one of those people where everyone's like,

oh, expertise doesn't matter. And I'm like, but why did I do all this then? So I think they're interesting categories. I think that it's helpful for Ross to write that in the New York Times so that people will stop thinking that all these people who don't agree with them are stupid. Because you'll notice none of those categories are stupid people. Right. Right.

No, that's exactly right. No, I think so. And I also think that what's happening is we're in a and it seems like at some point and nobody can avoid this distortion field we've seen it happen on the right we've seen it happen on the left oh i do find it funny by the way that nobody is nobody who's currently saying that all these people are stupid is saying that all the people who believed that you know muller was going to indict donald trump or something or other, but they were stupid. Like there's just no recognition. And by the way, no recognition on the right for all these people believing in this conspiracy theory, that this is the exact same thing the left did. And to the

extent there is that recognition, they think it's like turnabout fair play. Right, right. Oh, look, you did it to us. We're going to do it to you. And then also no recognition. Which basically acknowledges that it's false, right? Exactly. That's weird. It's just a tactic. It's just punching people. And then what you often don't have on the right is a recognition that when the president of the United States is driving this bus rather than Rachel Maddow, that's worse. Okay. That's worse. It is not the same thing when you have some people writing and say, I don't know, The Nation or an Alt Weekly

or publishing some paper somewhere about Diebold in 04 in Ohio. Okay, that's bad. And there should not have been progressives who granted any credence to the Diebold theory in 04 in Ohio. But you know who wasn't pressing that at the top of his lungs all the time?

John Kerry. And there's a difference. There is a difference. When the president is pressing this, it makes it worse. And why can't people just acknowledge that? And not just from a power standpoint, although definitely from a power standpoint,

but also from a bully pulpit standpoint. Exactly. Exactly. It's powerful. Not just does he have power as the president of the United States. Yes, he does. But that bully pulpit you're talking about has cultural power. And so, yeah, but the mistake I think a lot of politicians are making right now is that, and it's the same mistake politicians make all the time, there's a difference between sort of intellectual knowledge that says, hey, I know that a majority of people, even if they kind of don't believe the election was on the up and up, this isn't the main thing motivating them. main thing motivating them. But when the people who care, who take the time to tweet, to call, to email, are almost uniformly of the belief that this is a stolen election, that has an outsized influence on people. And they will recoil from inflaming the group that's the loudest. Yeah, because those people definitely vote. Yes.

The other people probably vote, mostly vote, kind of vote. This is why they always say to write or call your congressman. It may seem like a waste of time and that that's crazy, but they all pay attention to it. And they usually keep little scorecards of, you know, 122 calls for, six calls against today. And the Congressman usually asked for those at the end of the day or the end of the week, ask any poor staff assistant who's worked on the Hill answering phones. And they'll tell you like

they have to log all that. So it does make a difference. And this is the like now Twitter version of that. Um, but David, you said that one group had acquitted themselves. Well. Yes. Yeah. So this is interesting. The conservative legal movement, the conservative legal movement

has been an outlier in the post-election period, both by omission and commission. So these trump election challenges have become come before judges that have been uh were republican judges and democrat republican nominated judges and democratic nominated judges in the state level it's come before republican judges and democratic judges you with, through when we know their partisan affiliation through, through judicial elections. And they've all been rejected. And some of the most stinging opinions have been written by conservative judges against these Trump election claims. So that's the commission that universally these more conservative judges have rejected the Trump claims.

And then there's the omission. It is very interesting to me, Sarah, and I wonder if it's interesting to you, that the lawyers who are leading the charge at overturning this election are not the cream of the crop of the conservative legal movement. And make no mistake, it's not like there aren't hundreds of really good lawyers in the conservative legal movement who are in private practice, who are not Trump judges. Hundreds and hundreds, hundreds. They're at conservative nonprofits. They're in their own law firms. They're part of other bigger law firms. And you know what they're not doing? Participating in this. Well, there's sort of an interesting fourth group, David, and that is

the very, very small group of experts in their area of expertise. So I would assume that there was a whole bunch of epidemiologists in roughly April who were all talking amongst each other and saying like, ooh, this, this, and stuff, and whatever epidemiologists say. So here we have the equivalent of a whole bunch of really experienced lawyers who have done post-election litigation, who amongst themselves are looking at everything as experts in their field of expertise and saying, there's not anything here. Yeah. And there's also different systems of accountability in the law than there is in politics or conservative infotainment. You know, one of the things about being a, and I've been a, you know, I've been a law firm lawyer, I've been a public interest lawyer. And one of the things that is very, very, very precious to you

is your reputation in front of the judiciary. That is very precious to you. And you want to be taken seriously from the moment you walk in the door. You want the judge to know your arguments are good, they're well-reasoned, they're persuasive, they're based on facts, they're based on evidence. Your reputation is at a premium if you want to have a long-lasting state or federal court career. confronting the best arguments of the other side. If you are an attorney of any proficiency in your field, you are used to confronting very good opposing arguments all the time. And so you're safeguarding your reputation, you're used to having to overcome really tough arguments,

and you're also used to trying to win over people who might not necessarily be predisposed to you. All of that implies a level of rigor and selectivity in the kinds of cases you're going to take. And all of that says, stay away from these election challenges. It's like a giant red flashing sign, warning, caution, stay away, do not go near this. And I think it's very interesting that almost as a whole, the conservative legal movement has stayed away. Yeah, I'm actually surprised, believe it or not i'm surprised yeah i am a little surprised uh because and i think we know the reason which is internal to the trump campaign there was disarray and there was a power vacuum that allowed one sort of wing to take control and that pushed out everyone else who might have brought a less

aggressive but also more credible set of challenges so what last i checked mark elias's website he said there were 41 active cases um you know let's say that three of those aren't going to win, but they are non-risible claims. Right. You could imagine a lawyer, a top-tier lawyer, being willing to bring those, really flesh them out, make the best possible argument for them, even if they think that they are probably losing claims. I'm thinking first and foremost that claim about whether Act 77 was constitutionally passed in Pennsylvania. Yeah, there's some procedural problems with it, namely that they brought it after all the votes had been counted, but it's not a crazy claim that that wasn't passed correctly. You could imagine without all of the other

crazy, crazy stuff that some good lawyers would want to get on that. The problem is it's not just that then they're like, well, I'll bring the one good claim and just let the crazies bring all those other claims.

Very smartly, I think everyone knows that you'll get colored with all the crazy regardless of if yours happens to be the one okay one. Yeah. And so you needed a world in which there were only three cases,

but the three cases were actually pretty smart. And instead they brought 41 cases, three of which might be smart, but no one can tell because, and I know that, I know this is small, but the typos are real, David,

and they're a problem because some of the typos are whether the plaintiff has agreed to be on it. Some of the typos, you know, are, go to the care in which the lawsuit was crafted. And the other thing is, even for some of these cases that it's not crazy to say that the Pennsylvania law violates the Pennsylvania Constitution. That's not crazy. But filing after the election, seeking to invalidate the election, that's like your record scratch noise. You know, like, what? So in almost every one of these cases, what you might do is, okay, here's a non-crazy claim from Pennsylvania. It is not crazy to say it's a problem when voters were given an opportunity to cure defects in their ballots in one county and not given an opportunity to cure defects of their ballot in another county. That is a completely non-crazy claim. That is a worthwhile case to press. To then say, and therefore the election should be overturned in Pennsylvania? Again, what? So even in the non-crazy claims, what you end up to meet the demands of sort of the Trump campaign and Trump

himself, you have to push into the red zone and past the red zone. Now, the distinction is that a lot of politicians are willing to do this, you know, and a lot of infotainment personalities on Fox or in talk radio, they're willing to do this. I mean, there were dozens of Pennsylvania state legislators who signed a letter urging the Pennsylvania congressional delegation to not recognize Pennsylvania's electoral college votes. Dozens of state legislators. So what we see is that there are a lot of politicians and conservative personalities willing to go past that red line. What we're not seeing is the conservative legal movement, by and large, willing to go past that red line. What we're not seeing is the conservative legal movement, by and large, willing to go past that red line. And in fact, what we

are seeing is some of the leading lights of it throwing the cases out. And that's a really interesting difference. And I also think part of it, honestly, Sarah, goes back to, and I'm going to praise this organization that I was a part of when I was in law school, the Federalist Society. The Federalist Society, by and large, is now a lot of it, there are people who are now very careerist who are sort of entering into the Federalist Society because you kind of got to have that bullet point on your resume now in conservative legal circles. But when I was coming up in the Federalist Society, A, it was not fashionable to be in the Federalist Society in law school. B, it built its presence in law schools

through debate. In other words, take a con law professor on the left and a constitutional lawyer on the right and have a respectful debate in an academic setting. And then number three, there was a coherent legal philosophy of originalism and textualism. You take all of those things together and you had kind of a combined commitment to excellence pursuant to a particular legal philosophy. And that paradigm is incompatible with the lawsuits. That philosophy is incompatible with these lawsuits that are spewing, you know, coming up into federal court.

And of course a federalist society judge is going to reject that stuff. Of course he is. And he or she is, they're going to reject that stuff. If they're true to what they spent their entire career building. And with that, David. And with that, David. And with that, we shall conclude. Well, this has been an all over the place kind of pod.

I like those. Me saying the word sexy more in one concentrated span of time than I ever have in my entire life. Let's keep it that way. Okay. We will not mention that case again, but we will be back. We will be back on Thursday. And again, I'm going to ask you guys to please go rate us on iTunes, Apple Podcasts. I'm sorry. Subscribe on Apple Podcasts and we will see you next time.

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