Advisory Opinions - Voting Battles Head to Court

Episode Date: October 29, 2020

We’ve already seen record early turnout this election cycle. Our hosts have three major takeaways from the surge: 1) It means the polls are more likely to be accurate (the registered voter number is likely to reflect the actual voter number), 2) It means that we’re going to see interesting shift in how both candidates’ spend time on the campaign trail before Tuesday, 3) It means we have a record number of absentee ballots, which will lead to a concomitant surge in election litigation. In the hopper for the rest of today’s podcast: judicial oaths of office, turnout in swing states, and election litigation galore (with a close look at Wisconsin and Pennsylvania!) Show Notes: -Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here! -Marquette Law poll on voters’ optimism that their preferred candidate will win, Wednesday’s Morning Dispatch: “Election Litigationpalooza,” a statement on the Pennsylvania ballot deadline litigation from Justices Alito, Gorsuch, and Thomas. Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode is brought to you by New Balance Running. New Balance believes if you run, you're a runner. Whether you're going for your first ever run around the park or going for your personal best in a marathon. Speed, strength, stamina. Whatever goal you're working toward, New Balance has the running shoes, clothes, and accessories to push your run further and help you run your way.

Find yours at newbalance.ca slash running. New Balance. Run your way. Find yours at NewBalance.ca slash running. New Balance. Run your way. What happens when 20 extremely athletic Canadians who thrive on competition and won't settle for less than number one find themselves on a team? Taking on jaw-dropping obstacles all across Canada is one thing.

Working together on a team with some pretty big personalities is another. It's a new season of Canada's Ultimate Challenge. And sparks are gonna fly. New episode Sundays. Watch free on CBC Gem. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And this is not the last podcast before the election that will occur Monday. And Monday, Sarah, we're going to have to give

our definitive predictions. That's a terrible idea. We can only be wrong. It's a tremendous idea. It's tremendous because there's a chance we could be right. You got to look at it. You're like that guy with the draft kings fantasy football he had won a million dollars and then they like recalled one of the plays in the bears game and said it was what a incomplete instead of a fumble or something and then he lost a million dollars now how am I like that guy? I don't know. You just are. No, like you make a prediction, like there's some very exceedingly small chance you could hit it all right. But the much more likely is that you'll get it wrong. Well, I mean, obviously I'll get the precise. I think that what we're talking about is, okay, generally a matter of scale. So is it, you know, so if I have a,

an electoral college map that is something like say the 96 scale victory that the Democrats had over the Republicans, even if I get say Arizona wrong, I'm going to be mostly right. Whereas, or, you know, if you predict a 2016 style Trump victory, even if you might get Wisconsin wrong, you're still going to be mostly right. So this is where close matters. This is like horseshoes and hand grenades. So last on Monday, you said that turnout was at 65 million and you wanted to predict turnout today. I predicted 70, You predicted 85. Yes, I went high. And we're at exactly a tie.

Slight edge to David maybe, but it's at 78.1. Oh, and the numbers were just updated, 78.5. Okay, then I think it's leaning pretty heavily toward you because our pod just started. So congrats. Well, thank you. Thank you. Is this an accomplishment or is this an accident? Oh, definitely an accident. Oh my goodness. So how many accidental accomplishments can I have before they're legitimate accomplishments?

Yeah, they have to be repeated, repeatable. Oh, okay. Well, all right. be repeated repeatable oh okay well all right yeah uh so speaking of turnout though i for me the turnout has three important things that it means to me one and maybe most relevant to listeners is that it means the polls are actually more likely to be accurate a problem in polling has always explained yeah so a problem in polling has always been that they don't know exactly who's going to turn out to vote. And so when they poll registered voters, that of course, it only has like an 80 to 90% chance that registered voters are going to turn out to vote. When they poll likely voters, they're having to put their own thumb on the scale of who's a likely voter, even if they use voter rolls, even if they ask people, like

that's not perfect. But this time around with extremely high turnout, the registered voter number is most likely to be very similar to the actual voter number. And that means that polls of registered voters are much more likely to be accurate than in any previous cycle we've seen. Well, and the registered voter number is easier, isn't, and correct me if I could be totally wrong, the registered voter number is easier to wait because the demographics of registered voters are relatively known? Correct. It's all known because the voter rolls are public. So it's much easier to call registered voters. It's much easier to wait from registered voters. The whole thing just becomes a lot easier if turnout is very, very

high, like it's expected to be this time. Now, asterisk David, early vote turnout has been extremely high. We may see a big drop in people who turn out on election day. Yeah, and that's important to emphasize how high this has been. So we're nationally at 57% of the total votes that were counted in the 2016 general election, general election, 57%. And I would say if other states,

if all states had as liberal early voting rules as many of the high percentage states, we'd probably be well above that 57% right now. But here are the notables. Texas, Sarah, your homeland, 94.1% of the 2016 turnout has already voted in Texas. 94%. What's interesting about that is that Texas has always had, not always, but in recent years, had early voting. So that part's not new. But what is new is that Texas has been told

for the last two weeks that they're a swing state for the first time since, what, the 70s, early 80s? Right. And so you would expect to see a bigger increase in turnout in a state like that than you would in a state like Florida that has known this whole time that their votes, in theory, matter. So I'm not surprised that we're seeing an increase over 2016, but even so, the amount of increase is wild. It is. It's crazy. And so let's walk through some of our favorite states to walk through. Just briefly, just touch on them. And then we're going to talk about election law and election litigation,

because it is getting intense already. It's getting quite intense. But let's talk Florida. So Florida is at 77% of 2016 total turnout already. And look, it's easy to over interpret these kinds of voter registration number, like who's voted by what party registration, et cetera. But it's looking like Florida's going to be close again. Newsflash so far right now of the 7,380,000 who voted 40.5% are registered as Democrats, 37.7% registered as Republicans, and 20.4% no party affiliation. And so it doesn't look like the Democrats, unless the no party affiliation has really moved in their direction, are banking much of a lead for election day. No, and in fact, that's actually good news for Republicans, given the delta in the party registration in previous cycles. That is a smaller delta between Democrats and Republicans than you'd expect to see. It's, again, almost 80%. Let's see. Nope, more.

81.1% of the 2016 turnout so far. And there it looks like that the Democrats are banking a pretty big lead. 38.6% to 31.2% with almost 30% no party affiliation. But when you have almost 30% no party affiliation, can you draw too many conclusions at all? Nope. Well, there you go. And that also doesn't take into account the election day versus early voting and everything else. If I were Democrats, I would want to see a larger lead than that going into election day voting, which we at least believe from polls will skew much more heavily republican and we'll do the last of the our little swing

state run through is uh the great state of arizona where that was where um that was where donald trump was yesterday correct so here here we go with our irresponsible speculation based on Arizona's numbers. It looks here, again, the no party affiliation number is pretty high, but it's 39.7% Democrat of return ballots, 35.6% Republican, 24.7% no party affiliation. So again, there seems to be Democrats banking a lead, but as far as what that lead is, you know, how significant is that lead? How real is it given that the high number of no party affiliation who voted? All you can do is just look at it and wonder. So David, let me tell you about my second point of what record early turnout means to me.

Yes. It means that you're going to see more interesting decisions in how these campaigns decide to spend their candidates' time this weekend. So when you had most of your votes coming on election day, rallies in theory mattered a lot to campaigns because they thought they were actually ginning up turnout for election day. But what happens when there's record turnout and there's going to be fewer and diminishing numbers of voters on election day. What are these rallies doing?

What do they mean? And to me, what I'll be looking for is basically a really easy glimpse at what their internal polling numbers say. So for instance, going back to 2016, I, like everyone else, said that Hillary Clinton was going to win. But on that Saturday morning, they announced that she was going to Dearborn. Sorry, Grand Rapids. And that made no sense that she would be going to Michigan when all the public polling said she was up six. And of course, she wasn't up six. And that rally, I even said, I was like, if you're sending your candidate to Michigan three days before the election, your internal polling has her down by one because there's just no way otherwise. So look for those type of things this weekend.

And we're already seeing some of them, right? Biden and Harris had booked trips to Texas and Georgia, whereas the president was just in Nebraska's second district. Nebraska's second, remember, Nebraska has two electoral votes that go to the winner of the state as a whole, and then three congressional districts, and the winner of each congressional district gets a vote. So Nebraska's second district was won by Trump by two points in 2016. This time around, Biden is showing that he's ahead by a bit. It's worth one electoral vote. So the fact that the president booked an entire trip just to go to Nebraska's second district for one electoral vote

means they think this is a squeaker and that their only path to victory could lie through Nebraska's second congressional district. Wow. Yeah, that's fascinating. That's fascinating. Now, with the Democrats, there's just such a lighter schedule. Much lighter. Yeah, it's harder. Are we drawing conclusions from the lighter schedule? Is this the prevent defense? Is this, you know, they're in the nickel package or they're in the dime package and they're just sort of going to let Trump throw underneath until the clock runs out? I mean, what's this lighter or is it just coronavirus? Well, so Joe Biden had an event in Georgia, as I mentioned, and he had his largest turnout to date. It was 771 people.

Wow. To give you some comparison, the president was in North Carolina and he had over 20,000 people at his rally. Now, there's a few reasons for this. One, Joe Biden does sort of drive-in movie theater style. So it was actually 375 cars with roughly 771 people in them. So they're doing a totally different style. Their campaign has said they don't think these rallies are making a particular difference. Then you're like, well, why are you doing them? But they have some data to back that up. I don't know how many campaign

operatives trust sort of a professor running regression analysis compared to their own gut instinct that rallies are important. And what else are you doing with your candidates time up till the end? But it seems that they believe that maintaining their narrative over the virus is more important than these massive campaign rallies. And given where things are, given what the polls show, given that we think the polls are more likely to be correct this year, they're probably making a good bet on that. Yeah. Well, it would just be a completely inconsistent message if your message has been the president is irresponsible and he's just hosting a series of super spreader

events, leaving a trail of illness in his trek across the United States of America to then do the same thing yourself. He sort of boxed him into this hyper careful, cautious sort of public appearance strategy. And remember, these rallies aren't convincing undecided voters. They are preaching to the converted. And what you're hoping is that on top of your true diehard fans who support you no matter what and are going to vote for you no matter what, there is some percentage of folks who support you no matter what, but maybe weren't going to vote. And it creates a stickiness and attachment to the candidate that increases turnout among those. The question is, who are those people who couldn't be bothered to go vote for their preferred candidate, but are willing to show up

to a rally? That's always been a bit of a question to me but uh presumably there are some people so david can i tell you about my third reason that high turnout matters yes please third reason the record high turnout will matter this year is because it is it it means that we have a record number of absentee ballots coming in the door it means there will be a record number of mail-in ballots, and that's what leads to litigation. That's how elections end up in court. So 550,000 ballots were rejected in the primaries this year. Over 23,000 were rejected in Wisconsin alone during the primary. That is more than Trump's margin of victory in 2016.

So the ballots that are rejected are almost exclusively these mail-in ballots. They're rejected for, like, we know the reasons they're rejected. They didn't get in in time, the person didn't sign their name, or they somehow screwed up the envelope situation, depending on the state. And those are all things that wind up in court because those 23,000 ballots are capped and they could have changed in 2016, certainly, the margin of victory. And so that also is more likely to have errors in first-time voters. So if it's your first time using an absentee ballot, you are more likely to have errors in first time voters. So if it's your first time using an absentee ballot, you are more likely to have your ballot rejected.

Therefore, in an election with record high turnout, with record high absentee ballot usage, that means we have a lot of first time voters using an absentee ballot for the first time. And that takes us to the Supreme Court. Yes, but before we get there, I have two things. Yes.

Okay. Number one, we get a lot of questions about what if the polls were wrong? What if the polls were wrong? What if they are as wrong as 2016? And you and I have referenced, and I just want to point readers to a resource. You and I have referenced the Battle

of the Nates before, Nate Silver versus 538 versus Nate Cohn of New York Times. And in general, we give the edge of the Battle of the Nates to Nate Silver and the data at 538. But Nate Cohn has a resource I've not seen. And we've also complained about the navigability of the 538 website, but Nate Cohn has a what-if-the-polls-were-wrong analysis, in addition to a what-if-the-polls-are-right analysis. And he has a what-if-the-polls-were-as-wrong-as-they-were-in-2016, in the same way, in that sort of pro-Trump direction, or pro-Republican direction? And what if they're as wrong as 2012?

And the 2012 polls, if folks remember, were in a pro-Democratic direction. And the answer is pretty interesting. So if the polls were as wrong as they were in 2016, who do you think will win the presidential election, Sarah? Oh, still Joe Biden. Yes. And it's not that close. So if the polls are as wrong today as they were in 2016, Biden gets 335 electoral votes and Trump gets 203. If the polling leads are exactly correct,

like if everything's exactly correct, and I love Nick Cohn has a parenthetical where it says, electoral votes, if polling leads translate perfectly to results, parenthetical, they won't.

Then it's Biden 357 to 181. If it's electoral votes counting only states where a candidate leads by three points or more it's biden 326 trump 163 with that sort of um hazy few other electoral votes unknown so right now that that sort of gives you a scale of the lead now it doesn't mean that joe biden is definitely going to win and trump is definitely going to lose

but it illustrates that a lot of people are saying, oh, this is just like 2016. This is 2016 deja vu. That's not correct. If Biden loses, it will be a bigger shock, maybe not emotionally, but from sort of a polling standpoint than the Hillary Clinton loss would be. Do you want to know some fun facts about electoral college victories for Democrats? Yes. So the highest one in the last hundred years, do you want to guess? Highest one in 100 years. 100. So that takes us back to 1920. Oh, goodness.

So you're talking FDR territory. You know what? I'll actually expand it. Highest one in 200 years. Highest one in 240 years for Democrats. So the highest one ever. Yeah. I don't know. I'm going to say something really super counterintuitive. Bill Clinton,

1992. Oh, you're actually very close. It was 1936, Franklin Delano Roosevelt, who got 523 electoral college votes. I'm so close. So close. But actually, 1992, Bill Clinton got 370. 1996, he got 379. And that is certainly the highest of recent history. Barack Obama in 2008 got 365. So we will see if Joe Biden wins, where he falls on that, and whether that factors into his mandate at all.

Yeah. And there's one other thing before we get to the litigation, and you tweeted this out yesterday. And this was information from polling in Wisconsin that said 80% of Biden voters believe that Biden is going to win. 80% of Trump voters expect him to win. 11% think Biden will win. 80% of Biden voters expect him to win. And 6% expect Trump to win. And you just, I have a theory about this that dovetails with my book, actually. But you tweeted, this does not end well. Now, some of this, as people pointed out,

every cycle people expect their candidate to win to varying degrees. The difference is this time, I think, it's beyond just expecting their candidate to win. It's a disbelief that the other candidate could win. Right, right. And the overwhelming numbers also suggest to me, it's really funny. So I have always lived, Sarah,

in a deep red or a deep blue neighborhood and state, always. So I've never been in a swing neighborhood, much less a swing state. And it's funny how that messes with your sort of your psychology of the race so um what you do is you find out that because everyone around you is sort of going one direction it has this really interesting pull on your perception of empirical data that says that everyone around you might be in a minority. I remember in 04, the polling was pretty decent for George W. Bush. I mean, pretty decent. It was always a really, a pretty darn tight race. But psychologically, I found it extraordinarily difficult to believe that Bush was going to win in 04, in part because I was completely surrounded by

Democratic voters. I lived in Center City, Philly, near 90% Democratic voters in that neighborhood. And so I'm surrounded by Kerry activism. It had this sort of psychological pull. And what I wonder is if this sort of natural optimism you have about your candidate is being enhanced by our sort of our big sort that people are living predominantly around like-minded people now and so they have this their candidate preference and that candidate preference is being reinforced by a day-to-day reality that is overwhelmingly favorable to their preference i don't know if that's right, but it sounds like a good theory to me. Let's head to the courts. Yes. So, a lot going on. Dispatch members, I strongly suggest that you look at our morning dispatch from not today, but two days ago,

that was a roundup of all of the key pieces of election litigation happening right now. But Sarah, you wanted to focus on a few specific states. I do. Now, perhaps we can start on a lighter note. Amy Coney Barrett has joined the court officially since we last potted. And we were getting a lot of email questions about this

oath situation and why Clarence Thomas was delivering the oath at the White House, etc. So I thought I'd do a little bit of oath history for the Supreme Court. Yeah, go for it. So Supreme Court justices take two different oaths. There's the constitutional oath that you have all heard before. Any member, frankly, of the government more or less takes the exact same oath. I do solemnly swear, affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which

I'm about to enter, so help me God. David, I believe you've taken that oath. Yeah, so I mean, I don't know if it's identical to the military officer's oath. It's not, may or may not be. I can't remember. I've taken the oath a couple times as a judicial clerk and as a member of the executive branch, but judges take a second oath. I do solemnly swear or affirm that I will administer justice without respect to persons and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as, fill in the blank, under the Constitution and laws of the United States, so help me God.

That actually was slightly changed in 1990, by the way. The phrase, according to the best of my abilities and understanding, agreeably to the Constitution, was changed to under the Constitution. So justices take both of these oaths. What happened this time is that Clarence Thomas administered that constitutional oath, the first one that I read at the White House, to Amy Coney Barrett. She was not a justice after that oath. The next day, she went to the Supreme Court and Chief Justice Roberts administered the second oath, that judicial oath. After that oath, she was officially a member of the court. This has been going on for quite some time. The Judiciary Act of 1789 did not specify the manner of administration of the oaths.

And around and around we went, it evolved. FDR was the first one to have the ceremony at the White House. Then it fell back out of practice. And then Ronald Reagan brought it back and had the constitutional oath ceremony at the White House for Antonin Scalia. Funny enough, Antonin Scalia then becomes the only justice to take oaths from two different chief justices on the same day because Chief Justice Berger administered the judicial oath to Rehnquist and Chief Justice Rehnquist in turn administered the judicial oath to Scalia. And so that's how they did that order of operation. So Rehnquist as a justice did his constitutional oath and then Berger did the chief justice oath to Rehnquist and then Rehnquist did the judicial oath to Scalia

as Chief Justice. So there you go. Fun fact. Interesting. Yeah. Yeah. Yeah. So now we have a nine-person court. And boy, things have gotten fun already, although Justice Barrett did not participate in either of the two major cases we're going to talk about today, Pennsylvania and Wisconsin. Yes. So let's go Pennsylvania first. Tell the folks what happened in Pennsylvania. Whew. So.

I like, you know, we should just begin every bit of contentious election commentary with that exact sigh. I mean, it's true, though, because Pennsylvania, I've been following what's been going on in their state government now through the summer, through the fall. And it's just actually a really good example of the political process's messiness and why judges are always so tempted to step in and try to, you know, help the children share their toys. So, you know, this pandemic's been going on for quite some time, and yet the Republican legislature and the Democratic governor all agreed at the beginning that they needed to start counting, for instance, absentee ballots early. Pennsylvania, Wisconsin, and Michigan, as you know, don't start even counting absentee ballots until polls open on election day, as opposed to all the sane states, including but not limited to Florida, North Carolina, and Arizona. But anyway, Pennsylvania

was going to change this. They were going to fix all this. And around and around these folks went, the Republicans amongst themselves had infighting and changed their minds, basically. And then the Democratic governor was like, well, you don't get to change your mind. Then poison pills were added on both sides, blah, blah, blah. The ballots aren't going to be counted early. That's actually not what's at issue today, but it's such a good example of something that they all agreed upon in the spring and nothing got done. The issue here is on what happens to an absentee ballot that is mailed before election day, but not received until after election day. Pennsylvania law currently says that it has to be received by Election Day. But the Pennsylvania Supreme Court stepped in and said, no, there's a lot of reasons

why this year is different and why it would violate the Pennsylvania state constitution if we didn't accept these ballots that arrived after election day as long as they had been postmarked before election day or oddly if there's no postmark at all fine so this gets to the supreme court for a stay when the court was 4-4 and the court splits four, four. So that didn't do anyone any good. Pennsylvania Supreme Court decision stands at that point. So then Justice Barrett joins the court and they decide instead of just going back up for another stay application, which I think would have been seen as particularly manipulative or cynical or something. They go back up on a writ of certiorari with expedited review. And that is actually denied as well.

Justice Barrett took no part in it. What that means, they didn't even have four votes for the writ, David, because as we know, that can be granted with four. So the four justices that would have voted on the stay don't even accept the writ for expedited review, but justices Alito, Thomas, and Gorsuch have an additional opinion. And their additional opinion basically says, look, this is different than the Wisconsin case, which we'll get to in a minute, because it's a state court ruling on state law. But there is no rule that the Pennsylvania

Constitution controls over the federal Constitution. And so we expect these ballots that arrive after Election Day with a postmark or no postmark to be kept separate. And we will review this writ not expedited, but nevertheless, basically, if it matters. David, what do you think about the if it matters jurisprudence when it comes to elections? matters jurisprudence when it comes to elections. Oh, man, it is what a it's essentially saying the Supreme Court is this the Supreme Court is essentially saying if this thing is really close, expect it will at least three members of the court expect us to step in, expect us to step in or at least those. Because at that point, you do have a Bush v. Gore, Bush v. Palm Beach County canvassing board problem where votes, different votes are getting counted differently.

And it doesn't matter what the Pennsylvania Constitution says. The federal constitution doesn't allow that. Right. I mean, well, the when I say expect us to step in, I mean, of course, you're going to have to grant or deny cert or grant or deny review uh or for affirm or vacate an injunction those that kind of that kind of intervention is just inevitable any time you file litigation in this context courts have to grant or deny your requests but in this circumstance to say okay here is a known issue it is a known issue. It is a known issue. And we are not going to issue, prior to the counting of the votes, any ruling on it.

And the best guidance we're going to give you is from a dissent that's from a minority of the court that is just sort of placing a marker providing guidance. See, there's no legally binding guidance of any kind here. None. Yeah, it's actually a little bit puzzling to me.

You know, their point is you have Act 77 passed by the Pennsylvania legislature, which says that all ballots must be received by 8 p.m. to be counted. There's no ambiguity. It's not a close call. And then you have the Pennsylvania Supreme Court basically saying, but pandemic law and allowing these ballots to come in later. And what you have is some Supreme Court justices who would normally, it's clear, side with the legislature, but are just really hoping that this doesn't matter. Yeah.

There's like a lot of fingers crossed. But laying down a marker that if it does, yeah, but laying down a marker, if it does, then watch out. So the messiness with this is, of course, that afterward we'll kind of know where the chips lie. Whereas before, we kind of don't. Now, on the one hand,

we have polling that suggests that those who are mailing in ballots are more likely to be voting for Joe Biden. But on the other hand, we also have polling that suggests that, you know, Joe Biden sort of wins this thing running away. And if it's close, it's Donald Trump who's going to want to get more ballots in there to see whether he can find any for him and that Joe Biden's going to be the one that says this thing's over. Let's shut it down because in theory, Joe Biden should be the one going into this ahead. So it will be hilarious and yet entirely expected if forget even the presidency, the Senate races, et cetera. If there's a close one, I expect that the Democrat will enter a recount ahead on the count

and that it will be everyone flipping positions here. And it will be the Democrats saying that we're not going to count the absentee ballots that arrived after election day. And it will be the Republican saying, oh, no, we absolutely must disenfranchisement. And I will the my eyes will roll so far back in my head, David, at that moment. I know that's what lawyers have to do. But nevertheless, it will be particularly disingenuous this time. Now. I do not disagree with anything that you just said. Unless, you know, the only way, the only way, well, I just, I can't see a situation

where the tacticians and lawyers on the ground who have a lead under the existing rules at the end of counting would then say more counting, and how someone who is behind under the existing rules with some ballots that are laying around outside of the existing rules would say less counting, because that's a concession of defeat. That would arguably be malpractice, and I actually mean that in the term of art sense. That would arguably be malpractice. And I actually mean that in the term of art sense. Yeah. If you're a lawyer representing a client there, it is absolutely in your client's best interest to not concede the election. So compare this to Wisconsin. Wisconsin comes out the opposite. Similar set of facts, similar question.

The main difference, and the relevant one for our purposes, is that instead of the Pennsylvania Supreme Court saying that we're going to continue counting ballots that were received after Election Day, it was a federal district court in Wisconsin that said that they must continue counting ballots after

Election Day. The Seventh Circuit then stayed that, and then it goes to the Supreme Court. Now, remember we talked about Purcell, David? Purcell was this idea that federal courts don't step in and mess with election rules close to an election. And so both sides hilariously argued Purcell in Wisconsin. The Republicans said that the district court had argued Purcell in Wisconsin. The Republicans said that the district court

had violated Purcell because that was a federal district court stepping in and changing the election rules. But then the Democrats argued that the circuit court had violated Purcell by undoing the district court's rule even closer to the election. Right. And then, of course, you have the argument that nobody violated Purcell because counting ballots does not actually affect any voters, and Purcell is meant to protect voters

from having flippy-floppy rules messing about. There's some disagreement over that of whether it also applies to election officials, in which case, which ballots you're counting absolutely would confuse election officials. But nevertheless, Purcell got bandied about. David, very important at this moment that I

mention that my husband is the attorney for the Wisconsin legislature. And while I do not help him one bit with any of his cases, nor did I read any of his filings because I am a bad wife. Nevertheless, I have a pecuniary interest in theory in this case and should mention it to our listeners. Yeah. So this is where we're going to get into. So if you are somebody who's looking at this and you're just a normal and you're a normal human being you're not a lawyer you're not a legal nerd and you're not an advisory opinions listener then you're going to look at the Pennsylvania case and the Wisconsin case and you're going to say what wait hold on hold on wait a minute. Let me put some cert in it. Unexpected.

Is that an actual song or did you just make that up? Oh my God, David. Obviously that's an actual song. No, I was going to be super impressed if you just made up that. What song is that? Wow. Let me put some cert in it. Is it an actual song in the song no i changed the lyrics to fit the situation okay it's like a cheer oh well i'm impressed you should have just said no i made that on up on the fly that was like a

freestyle rap listeners someone back me up here That's definitely like a cheerleading cheer, right? But let's say you are just a normal person and you're going, wait a minute, the Supreme Court says it's okay for ballots to be counted after Election Day in Pennsylvania, and it's not okay for ballots to be counted after Election Day in Wisconsin. and it's not okay for balance to be counted after Election Day in Wisconsin? And what is going on? Is there favoritism towards Pennsylvania voters versus Wisconsin? Let me break this into some different chunks. So segment number one are different legal postures.

It seems pretty clear, Sarah, and you tell me if you disagree, that if the Supreme Court is interpreting a state law that is passed by a legislature and signed by a governor, regulating ballot access, timing, et cetera, et cetera, that absent sort of an egregious violation of federal voting rights, that is going to be upheld. A state law passed by a state legislature. So, for example, if Pennsylvania had passed a law this spring that extended the voting deadline and it had not been the Supreme Court that had done it by interpreting the Pennsylvania Constitution,

but a law had been passed allowing for vote counting past election day, I would expect it to be either unanimous or near unanimous that the Supreme Court would have held that, would have ruled in favor of that Pennsylvania law. That's one bucket, which are cases that are not going to be as common coming to the court. Another bucket is state authorities, coming to the court. Another bucket is state authorities, often state courts or boards of election or perhaps governors, have invoked the pandemic to change state standards. Again, this is state authorities changing state standards, invoking the pandemic. The one thing that seems like is you have about a 4-4 split there on the court permitting that with it not coming up through the legislature and the government, you know, a law, a state law signed by the governor enacted by the legislature. And then the other one is a federal judge altering state standards, applying federal constitutional principles.

And right there, that implicates Purcell. And it seems like you have the majority of the court saying no. Is that a pretty good basic rough breakdown, you think? I think that's right. The only thing that's missing is that, like the rest of America, hurtling into this election, you have eight members on this court who also live in this country, read the news, etc.

And it was 35 pages worth of opinions. on this court who also live in this country, read the news, et cetera. And it was 35 pages worth of opinions. And, you know, it was contentious, David. You have Kavanaugh writing in what got certainly the most attention. You have the chief writing. You have Gorsuch writing, and you have Kagan writing. Fun little side note, by the way, David, we have a revised Kavanaugh opinion because

Vermont hilariously wrote in and said there was an error in the Kavanaugh opinion. So they were upset because initially the Kavanaugh opinion said other states such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election day deadline for the receipt of absentee ballots. And Vermont wrote in and said, but yes, we have changed our election rules we've extended early voting we sent ballots to everyone in our state and so the supreme court reissued the opinion and now it says other states such as vermont by contrast have decided not to make changes to their ordinary election deadline rules including to the election day deadline for the receipt of absentee ballots

thank you vermont for weighing in on that important sentence. It has been corrected. Well, and Justice Kagan, I would say, shall we transfer the spicy mantle from Justice Alito to Justice Kagan? Per usual, her writing was fantastic. And there's a great footnote where she says, note as well that nothing rides on the exactness of the district court's estimate of how many ballots would be thrown out in this case. The district court estimated that 100,000 ballots could be thrown

out. She continues, suppose that without the ballot receipt extension only, parentheses, only question mark mark half as many votes would be discarded as the district court thought uh the court's decision would have remained the same and so too everything i say here but as for the concurrence who can know justice kavanaugh does not reveal how many uncounted votes he thinks would violate the constitution nor does he suggest how many votes short of that level will be discarded because of the court's decision today. Yes. And Justice Kavanaugh's point for what it's worth is, you know, you've extended this by three days. Why not 10? Why not

three hours? Like all of this is arbitrary and judges in general should not be in the arbitrary decision-making business. I wrote about this and some readers were a little bit confused because it's confusing, Sarah, but I wrote about this. I had a problem with Justice Kavanaugh's opinion and it was a problem that some other people did not have, but I had it. And it's this. I think it was entirely, it is a prudential judicial question whether or not the Purcell principle, which is, and again, a Purcell principle is essentially that changes made close to an election day by federal judges are frowned upon, as Justice Kagan called it, a caution, not a rule, but are frowned upon. And that it's, I think, entirely defensible to say we have a Purcell principle here.

That Purcell principle applies, end of question. I don't think it's a lay down hand, so to speak, but I think it's a very defensible judicial ruling. What I had a problem with was Justice Kavanaugh basically applying what I've called pandemic law, and which we've already referenced as pandemic law, is to sort of say, well, and also, you know, look, we have a pandemic going on, and the state authorities have rendered their verdict on the law, and who are we to question it? This is, you know, this is going back to the dramatic deference shown to state laws and regulations going all the way back to early pandemic mid pandemic and i don't know if you wouldn't call this late pandemic because we

don't have any idea if we're in late pandemic but later mid pandemic and the question i have is when we're talking about constitutional rights this far into the pandemic, how long are we just going to flat out defer to state authorities on the exercise of core constitutional liberties? And my argument is that time has come and gone. The time in which we should defer so dramatically to state authorities when it comes to the exercise of core constitutional liberties should be over. And what disturbed me about the Kavanaugh opinion is it seems to say it's continuing. And if you think that that only applies to voting rights, which is a core constitutional liberty that sadly fewer folks in the GOP seem to be prioritizing protecting right

now, if you continue to carry that over into things like oh i don't know free speech freedom of association religious liberty some of these other topics that we've carried talked about it it concerns me that a key justice is still flat out applying pandemic law this late in the game so that was one thing i spent a a whole newsletter on it. And you know how you can tell when you have not written with exact clarity, Sarah? How? When a whole lot of smart readers say, I'm still confused.

So interestingly, I think I understood what you were writing. And I certainly, I think, understand what you're saying here. I just disagree. Sarah. It's different than being confused. So justice Kavanaugh makes three points in his opinion. The first is Purcell that you just can't screw around with this stuff this close to an election. And it doesn't matter whether it affects voters. It does matter that it affects election officials. And we would, as a court, be wise to clarify Purcell perhaps, but nevertheless, it applies here.

Two, and relevant to your point here, is he is making the point, and I'll quote here, the court has consistently stated that the constitution principally entrusts politically accountable state legislatures not unelected federal judges with the responsibility to address the health and safety of the people during the covid19 pandemic so i think where you and i disagree is that you think that the emphasis of that sentence is the pandemic and i think the emphasis of that sentence is the constitution principally entrust politically accountable state legislatures, not unelected federal judges over anything. Like that to me is sort of a fundamental federalist society. It is the role of the

judge to say what the law is, not what the law should be. And so, yes, in this time, it's in the context of the pandemic that the politically accountable branch is making a decision but he would write this second part no matter what because it is the role of the judge to say what the law is and the law is what the wisconsin legislature said it is but he would not have imposed this this statement would not flat out exist in in the absence of the pandemic as well as multiple court case multiple case outcomes um during the course of this pandemic for example the calvary chapel case that i refer to i'm not saying you don't have other examples i'm saying that this isn't a good one because legislatures

get to set the rules for their elections that's why we have 50 different elections in this country wisconsin decided not to change this rule and he goes through that that like they had the opportunity to do so they didn't do so the dissent says because they made no changes in it that means that you don't have this question over what the legislator meant, that if they had changed only some of it, then you could infer that they very intentionally didn't change this part. That to me is just fundamental deferring to the politically accountable branches. By the way, his number three point, well, we can go back to this pandemic law issue, but the number three point is that, um, uh, Anderson Burdick. So this is called the Anderson Burdick test. It's based on two different cases, one called Anderson, one called Burdick, and it's over the right to vote.

And the Supreme court's test for this is if there is a severe burden on the right to vote, then strict scrutiny applies. And we've talked about strict scrutiny in the right to vote, then strict scrutiny applies. And we've talked about strict scrutiny in the past, but the short version is strict in theory, fatal in fact. So basically, you can't have a severe burden on the right to vote. And if it's not a severe burden, then a lower level balancing test applies,

in which case the state almost always wins. So basically, it's this balancing test to determine which level of scrutiny applies. But frankly, that's just an added step to decide whether they're going to keep it or not. So his point on Anderson Burdick is that it's always been held that a deadline for an election, like a deadline for registering to vote, a deadline for requesting absentee ballots, a deadline for voting because we have an election day set by the Constitution. None of those meet the standard for a severe burden on the right to vote. And this is where I think Kavanaugh and Kagan have the most daylight between them. Right. Is that she's saying because of the pandemic,

it is a severe burden this time. Of course, it's not always a severe burden, but this is different. We have an enormous number of people trying to vote by mail. They're trying to figure this out. A lot of them are first-time absentee mail voters. And you have a mail system that's getting overwhelmed

and you had a finding of fact by the district court that mail in Wisconsin is taking up to two weeks to be dealt with. That is insane, by the way, David. That's a crazy factual... I would love to see the evidentiary record on that. Because that is wild. And Kavanaugh's basically saying,

well, look, you have to have some deadline. You're just setting it three days after the election, but you could have set it 10, you could have set it two weeks and finality in elections is important. If I were to critique this opinion, David, from a comms perspective, because Kavanaugh has been getting a lot of gruff.

Is that the right word? What's the right? A lot of stuff. He's been getting a lot of criticism, but like lots of people have beef with him. Lots with him. Let's just go with beef. Okay. And I think that perhaps instead of writing 18 pages, he may have just wanted to agree with the chief justice on the distinction between Pennsylvania and Wisconsin with the chief put in approximately one paragraph and leave it at that. Because getting into this now, ahead of the election, when everyone's feelings are running so hot, And just like Pennsylvania, it might not matter. Right.

I thought that perhaps it wasn't that illuminating compared to aggravating. Well, and it was a lot of... You know, the interesting thing is you have... In one sense, Kagan had an advantage in that she was dealing with findings of fact from the lower court

that were pretty compelling. Now findings of fact from the lower court that were pretty compelling. Now, the fact that the lower court had these findings of fact does not mean that, you know, if you and I went back and we looked at the actual evidence brought into the lower court and that the lower court reached these findings, we might find the findings of fact less compelling if we examined the evidentiary record, but the findings of fact are the findings of fact by the time they get to the supreme court so she had an advantage advantage of looking at some pretty compelling findings of fact including an up to 100 000 vote loss from people who had done everything diligently and still couldn't vote um and and so that that gate you know in that finding a fact

which i feel like um is you know this is a i think this is where those people who are really critical of the republican voting strategy i mean the republican voting litigation strategy have a really good point. And that is, the existence of a burden is an evidentiary question as well as a legal question. And if the evidence indicates in this present election the existence of a substantial burden, then we need to apply standard judicial scrutiny to that. And this is where I get to my problem to circle back on the pandemic law principle. In my view, Kavanaugh should have either done just joined with the chief and left it at that paragraph, or just done points one and two. I mean, points one and three, and not even have a point two. Because what is point two implied was that there is a extra special level of deference right now to the state.

But he says it quite clearly. He says it quite clearly. Because if he says the Constitution principally addressed politically accountable state legislatures, not unelected federal judges, and therefore our legal doctrine is what you just said on point three. Yeah, but we absolutely have a different standard that's been applied by the court to these pandemic cases. Jacobson v. Massachusetts, which is, you know, a case law dealing with smallpox epidemic in like 1905, a case that predates the development of all of our modern First Amendment jurisprudence, all of our modern voting rights jurisprudence. And they've sort of said, OK, for a while now, for some unspecified period of time, we're living in Jacobson land. And I just think that's a flawed way of looking at the Constitution. So let me ask a question that I think we will agree on.

Okay. The headlines coming out of this Kavanaugh opinion were Kavanaugh laying framework to hand election to Trump. Agree or disagree that that is an accurate summary of Kavanaugh's opinion. Oh, disagree and disagree for the reasons why we just, that we just discussed a few minutes earlier,

which is if the voting ends in Wisconsin and Biden is narrowly ahead. Kavanaugh has just created the framework for Biden to win. Exactly. I actually think to my point earlier about everyone is getting ready to switch sides here. I think that Kavanaugh's frustration that I can sense in his opinion is actually coming from the opposite direction. in his opinion is actually coming from the opposite direction that he's frustrated because he knows they need to lay a marker for stopping this election afterward for the opposite reason. And he doesn't understand why Kagan at all won't join him in laying that marker down. Yeah. Yeah. That's very interesting. That's very interesting. But yeah, I think that framing is exactly wrong because that framing completely depends on who's winning.

Right. Right. And everyone is stuck in the idea that what's going to happen is that Trump will end election day slightly winning and then here comes the blue shift. And that thinking might be completely outdated and outstripped by the polling trends of the last 30, 40 days. With that, David, you mind if I end on a listener email that I found particularly delightful? Only if you allow me to follow that with a listener email that's even more delightful. Not true. My listener email is going to beat a listener email that's even more delightful. Not true.

My listener email is going to beat your listener email. Okay, go ahead with yours. By the way, it'll be funny if it's the same listener email. Yes. This person has been enjoying the podcast. His wife, on the other hand, I'm not sure if she's enjoying the podcast. When they've been sitting down to dinner, her first question to him is, so did you hear anything

interesting on advisory opinions today? Now he's telling us that and says that she says it with a grin. I wonder whether she says it with sort of a sarcastic grin. I've got questions for you on this. a sarcastic grin. I've got questions for you on this. But he says that this sends them off on their dinnertime conversation and that he appreciates it. And so does she. Although, again, I'd rather hear from her that. But most importantly, he says that I love board games and my copy of Pandemic Season Zero just arrived. I pre-ordered it within an hour or so of hearing your interview with Rob Daviou. My wife and I played Pandemic Classic on our honeymoon and consider our play through Season One a true romantic story.

I kid you not, we embraced at the end. Oh man. First of all, thank you, Jeff. Second of all, that's a honeymoon. Interesting. Third of all, I kid you not, we embraced at the end. I'm hoping that's like the PG version and that like maybe they had more fun

than just a like hug at the end of Pandemic Season 1. You know, like at the end of one of those like crazy movies where they've been fighting off the aliens and finally at the end of the movie, our hero and our heroine kiss in a long, passionate way and then it just like all of a sudden cuts to like them having three kids.

Like that's what I'm hoping happened at the end of Pandemic Season 1 for our lovely listeners. That is a truly delightful email, but this one is more delightful for reasons you will quickly discern. David, I've learned much from you and appreciate your writing very much. However, potentially the most important thing I've learned from you is to try chicken tetrazzini. You have blessed my life. Then the next one. Also, this is also delightful.

Sarah is incorrect. Closest to the pin is indeed quite an accomplishment. It's only an accomplishment if you could do it again. Like if you were someone who had the top 10 closest to the pins out of your last 30 hits or whatever you call it, great, that would be an accomplishment because then you're really good at getting close to the pins out of your last 30 hits or whatever you call it, great. That would be an accomplishment because then you're really good at getting close to the pins. The fact that you accidentally did something is not an accomplishment, even if they give you money for it. Okay. Wait a minute. Can we go to definitions? Okay. Accident. I'm just going to do this. I'm

going to type this in right now what how does this is by the way while you're typing that in this is something that carly fiorina really beat into my soul and i believe it to this day that activities are not accomplishments bragging that you've you know worked really hard at something is good and it is it is its own thing that we should reward but it is different than an accomplishment, which is the achievement of the thing you were working hard toward. Okay. Activities are not accomplishments. Noun. Accidents are not accomplishments. Accident, noun, an unfortunate incident. So we're already out of it because it was a not

unfortunate that happens unexpectedly or unintentionally, typically resulting in Accident noun, an unfortunate incident. So we're already out of it because it was not unfortunate. That happens unexpectedly or unintentionally, typically resulting in damaging or injury. Now, this was a fortunate incident. That's clearly not the definition of accident because we all know there are happy accidents. And then the next one is an event that happens by chance or that is without apparent or deliberate cause. My accomplishment was the result of deliberate action. No, no, it wasn't deliberate. That's my point. That's my point.

It wasn't deliberate because it's not repeatable. You come back to this pod within one month of today. You have one month to get another. I only play golf once a year. You have. We have to wait till next October. You have one month to get another closest to the pin and then david i will herald this as the most impressive accomplishment i have ever heard in the world of amateur golf but until then i i rest on the definition that what happened was the result

of a deliberate intentional effort that achieved its intended purpose. Okay, yes, so let's go. Well, I'm just going to rest on that, Sarah. I intended to get closest to the pin. I took the physical actions necessary to get closest to the pin. I achieved closest to the pin. Achievement.

And Cole backs me 100%. And so you're not just messing with me. You are messing with Cole. And everyone knows you do not mess with Cole. Team Jeff all the way. All right, David, wrap us up. Let's get to Monday. Let's do this thing.

Yes. So Monday, we're going to have predictions. Predictions. We're just going to put our money. Well, no, actually no money. But we're going to figuratively put our money where our mouth is with some predictions. And I bet you, Sarah, we're going to have some court controversy to tackle between now and then. It would shock me if we didn't.

But until then, please go to Apple Podcasts, subscribe to Advisory Opinions, and please rate us on Apple Podcasts. Five stars only, please. And also, I neglected to promote our post-election event. Producer Caleb, what's our website? What'sNextEvent.com. Caleb, what's our website? What'sNextEvent.com. Yes. Okay. Thanks, Producer Caleb. What'sNextEvent.com.

No apostrophe. W-H-A-T-S NextEvent.com. November 9th and 10th. We've got a great lineup of folks who are going to walk us through what we just experienced or might still be experiencing what it all means. So What'sNextevent.com. Thanks for listening to the Advisory Opinions Podcast.