Advisory Opinions - Will This Be a Legal Disaster?

Episode Date: October 22, 2024

Sarah and David preview how the 2024 election might play out in the courts. But first, the two revisit their conversation with Leon Neyfakh. The Agenda: —Electoral Count Reform Act —Guardrails to prevent partisan manipulation —Ballot harvesting —File them lawsuits! —History of the Electoral College —Increasing the size of the House —David: I Don’t Want to Live in a Monoculture Show Notes: —Report on University of Michigan DEI programs Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Music Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David and I are in the same room together. Which is exciting for us, though you guys can't tell. Well, by telling them it's exciting, they can now tell it's exciting. They can feel the excitement. They can feel the energy, yes.

So I think we've got a fun little podcast today. I wanted to follow up on a couple Bush v. Gore points. And then we have the Purcell principle for those who have followed this podcast in previous election cycles. That's going to be the federal law principle, not rule, related to some of these election cases you may see popping up. And I've never asked David about the electoral college. And last, David wrote a thing on DEI, free speech, censorship, all that, so got some questions about that too. David, let's start with Bush v. Gore,

because I felt like I didn't necessarily do a great job actually explaining the breakdown of the decision. I described it as seven, two on the equal protection point, and then three justices on the Supreme Court can't do this. And then the four justices on the remedy in dissent. And I just want to clarify a little bit. Yeah. Because we have six opinions in this case.

So first of all, you have the per curiam opinion. Now, of course, that's not signed by anyone, but we know it has to have at least five votes. And indeed, since there's going to be four dissents, we know who the five votes are. They're Rehnquist, Scalia, O'Connor, Thomas, and Kennedy. And this is five-four. It's an equal protection violation and there's not enough time to remedy it. Election over. Right.

Then you're going to have the Rehnquist concurrence that I talked about with Rehnquist, Scalia, and Thomas saying, yeah, equal protection is interesting, I guess, but actually we think this is just that the Florida Supreme Court was stepping outside its bounds, but we don't have five votes for that. So we just wanted to raise our hands and note that. That of course is going to be the issue in the Moore case. And we did talk about that. Then you've got the Stevens descent, the Souter descent, the Ginsburg descent, and the

Breyer descent. And so what you're going to see discussed a lot after Bush v. Gore and still to this day as people revisit it is, was it 7-2 or was it 5-4? Right. And actually, I kind of regret saying it was 7-2 because this podcast really should be precise. And I think it is more accurate to actually just describe that it was 5-4 because the only question was the remedy. Right. And that two of the justices in dissent would have found that there was an equal protection violation but had a different remedy. Right. And that two of the justices in dissent would have found that there was

an equal protection violation but had a different remedy. So that's why you have really four different dissents. So then you get the question that I just thought was interesting to raise in this podcast. Do dissents matter? As in, if two people in dissent agree with some part of the majority, can you say that they were part of the majority for that purpose? No, because that's called concurring in part and dissenting in part. And that's not what these opinions were. They were full dissents. And so you have someone like Breyer saying basically, you know, I don't even need to reach whether this equal protection violation

rises to the level of a constitutional violation or whether it's just like makes me squeamish because I'm in dissent. So they actually lay out the fact that their views of the equal protection violation don't really matter. They're not signing on to what the majority saying about the equal protection violation. So I shouldn't have said it was seven two. Although that is the conventional way that people describe it. 7-2 on equal protection, 5-4 on remedy. But I mean, as a purely technical matter, you're correct. I mean, these are not concurring in part and dissenting in part.

They're just dissenting full stop. Yeah. I mean, I've always in my mind thought the 7-2 element of this was just kind of you're making it sound better. That's right. kind of you're making it sound better. That's right. Yeah, you're making it sound better. When the bottom line was everyone knew that for bottom line brass tacks, it was 5-4. Well, and there's this line in the per curiam, which like, again, per curiam means we don't

know who wrote it, but cough, cough, Justice Kennedy. And he talks about how, in fact I'll read this line, seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. Citing, suitor dissenting, briar dissenting. The only disagreement is as to the remedy. So really it's the per curiam majority opinion that sets up that it's seven two. But again, in any other way, I think we would say a descent doesn't count even if they agree. So that's there's a reason why we say it's seven two. And I think there's a pretty compelling reason

why that's not as accurate as it could be. Yeah. And I just wanted to run through the timeline as to the remedy issue in particular because and I'll just I'll throw dates out at you from 2000. Okay, so David, the election is on November 7th. The first deadline set by Florida law is November 14th. That's the first date that the Florida Supreme Court then extends by 12 days to November 26. They're trying to let those four counties get their manual recounts in from the Gore recount. That's Broward, Palm Beach, Miami Dade, and Volusia. So they don't meet the November 14th deadline. The Florida Supreme Court says not only may Harris accept them, by November 26 she must accept them.

So that's the first extension. That's where you get the first Bush v Palm Beach County case. That happens on December 4th. That's going to be important, right? Because the November 26th deadline has already passed by the time the Supreme Court makes its decision. And remember, two of the counties got their counts in, and it wasn't enough to make a difference. And the other two counties, Miami-Dade gave up and Palm Beach didn't make it. Yeah. So by December 4th, when the US Supreme Court is like,

hey, Florida, we don't understand your opinion or where you got the authority for this, try again. On the one hand, you can say they're sort of punting, but clearly they just like want this to be over and it's moot. Right. So we're done, right? But no, because then the Florida Supreme Court

ignores Bush v Palm Beach County from the Supreme Court. And then on December 8th, so four days later, that's when they have their new decision, it's 4-3, they extend from again This decisions on December 8th to say that you now have until December 12th to do a statewide Manual recount of all the under votes. So four days on December 9th The US Supreme Court halts that manual recount right and then December 12th. They issue their opinion this is why the remedy part is going to be really important because they lost basically

the whole time to do the state manual recount in December 12th as an important date. It's the safe harbor date that under Florida law, Florida says they will meet. Right. Federal safe harbor law to get to have their electors chosen, Though technically the electors don't meet until December 18th. So this is the fight between the five and the four. The five say Florida law says December 12th, that's federal law that they're trying to comply with. And the four say, look, that's just a safe harbor provision.

You actually have four more days. If they want to try to do it in four days, let them try. Actually, I think it's four days, let them try. Actually, I think it's a pretty interesting fight. Yeah. And I don't think one side is like so obviously more right than the other, but I did want to walk through that timeline

of why the five thought the time was done. Well, you missed a day in there. It was on the night that this is when the recall in the 11th, my son is born and I conduct the prompt to legal seminar in the hospital on that day. While the oral arguments going on. While oral arguments are going on, evaluating oral arguments.

Oh yeah, absolutely, absolutely. Okay, so I run through that timeline because I think it'll also be helpful if there is something similar that were to happen after this election. These are the types of dates that become really important. So, for instance, the stuff that I'm going to be looking for ahead of time to sort of have my own little spreadsheet for each of these states.

I mean, for those who want to just build one of these at home, the poll hours, what types of machines and ballots are used, the absentee rules, the deadline for receipt, when they can start counting, because we'll get to this in a second, that's going to be a big problem in Pennsylvania and Wisconsin. Man, okay, don't get me started. I can't believe we're doing this again, by the way. We're doing this again. Provisional ballots.

Remember, if you show up to your polling place and they're like, you're at the wrong polling place, you can cast a provisional ballot. And then under state law, you'll have some amount of time to come cure your ballot, to have it count. So what are the rules for provisional ballots? Cause all the campaigns are gonna rush to go find out who cast a provisional ballot

and literally like, you know, formaldehyde them and drag them back to the polling place to cure whatever was wrong when they showed up. The recount triggers. States are gonna have automatic recount triggers that basically are done under state law, but there's also gonna be, you know, when you can request a recount. If you're outside of a certain margin, you can't even request one. Right.

And oftentimes it's automatic. You can request one, but you don't even have to pay for it because it's so close. And then it's you can request it, but you're paying for it. Right. Now at the presidential level, that doesn't matter. They're happy to pay for a recount if they think it's possible. Major deadlines. And that's what really Bush v. Gore turned on is each of these deadlines that was set

by state law. Were those flexible or were they hardcore? That safe harbor deadline when the electors actually meet and of course the congressional certification. Those are all dates that we will have handy when the time comes. Any new rules since 2020, any major ongoing litigation and you may want to know the party of the governor, the state legislature, the secretary of state, and the justices on that Supreme Court and how they're appointed. So David, that brings us to two interesting pieces. One written by Neil Katyal in the New York Times.

Yes. And it says in case of an election crisis, this is what you need to know. And he paints this dire picture of how this could all go to crap easily and catastrophically. And then comes along Rick Pildes in Lawfare, basically just answering Neil Cotellan and says, there are guardrails in place to avert partisan manipulation of the election outcome. So David, did you find one more persuasive than the other that you would like to break down? Yeah. So I found the, I actually found the guardrails piece more persuasive. Same. You know, there, cause it got very practical and it also reconnected us with a long time advisory

opinions listeners favorite law, the Electoral Count Reform Act. Yes. And so let's deal with the practical first. On the practical side of it, I thought that Pildes did a really good job of saying, hold on, hold on. Let's look who's running these states with the exception of Nevada

where you have an untested Republican governor, untested in the sense of untested in the white hot heat of an electoral count. Listeners, I know you want me to correct him and say it's Nevada. Just footnote. I get it. Fine. Sorry.

Is it Colorado or Colorado? Oh, that's a good one. That probably depends on where you live, like Missouri and Missouri. But Nevada does not depend on where you live. It's always Nevada. It's always Nevada. Okay. All right.

I stand corrected. So aside from your untested Republican in Nevada, let's just presume for the moment that we're not worried about a massive electoral challenge slash riots out of the Democrats, that we're worried about it out of the Republicans. In that circumstance, your governor of Pennsylvania is a Democrat, your governor of Michigan is a Democrat, your governor of Wisconsin is a Democrat, your governor of Georgia and your secretary of state have been through this fire already and staked out their ground. And so just as a practical matter, the leadership of these states is not going to be a problem. So that's number one.

Number two was already courts are intervening, for example, in Georgia to block problems for their emergency. And so you're already seeing some court work that is blocking some of the worst case scenarios. And then hovering out there, we have the Electoral Count Reform Act. And the Electoral Count Reform Act really limits the circumstances under which state officials can mess with the electoral count. It's going to move it into federal courts very quickly. And then at the federal level, what the Electoral Count Reform Act does is it limits a lot of the

shenanigans we saw in 2020, because no longer does it just take one member of the House and one member of the Senate to gum up the works. You got to get significantly more people. The way in which you can challenge the results has been significantly narrowed. So, you know, this is one of those circumstances where, guess what? We've actually learned some things from 2020. We have made some legal reforms.

After 2020, there are more guardrails in place than used to be in place. That's not to say that a person couldn't create a lot of problems, but I think the real problems we're talking about Sarah are less legal and more in the streets. That's where I would be more concerned. I think there have been a lot of legal guardrails. It's also gonna be interesting after we've seen all of these defamation settlements.

Is right-wing media going to be just as eager to jump on some of these lies? That's an open question, but I think we're a little bit better off. Now, again, all this could be totally moot. I mean, Trump could win clearly, and this is all completely moot. But as a general matter, I feel like we've actually done some productive things since 2020. Not everything productive, as we'll get into when we talk about Pennsylvania and Wisconsin counting absentee ballots or counting mail in ballots, but we've

done some productive things. Yeah. So I just wanted to also read a piece of this and we'll put it in the show notes because I found it incredibly persuasive. And I think if you go back and read Katyal's piece in the New York Times, you realize how gauzy it is. It's a little bit like yada, yada, yada. This could be bad. Yeah.

Whereas Pildes is going to really get into it. By the way, Pildes is not some right wing apologists. No, no, no, no. He's a law professor at NYU and considered one of the top experts on election law and these sort of this is a serious dude. Yeah. Also, he's posted some lawfare, not a right wing website. Right. Right. So next, Katyal worries about county and local election officials. Indeed, though, the courts in Georgia, a state Katyal worries about have already held that certification is a mandatory obligation of state and local officials.

State courts will issue orders requiring certification with criminal or civil penalties for noncompliance. If county officials still refuse to certify accurately, most state courts have the power to direct another official to carry out the court's orders, and some states governors also have the power to replace county officials who fail to comply with their obligations. David, there was an interesting case about this when it dealt with same-sex marriage in Kentucky. Remember a local official was refusing to issue those marriage certificates even though it was mandatory. Right. And so that was it. Like you just have someone else do it and you face criminal and civil penalties if you don't. So we've dealt with recalcitrant local officials and other contacts.

And I'm not saying it's great, but we have a process for that that actually is pretty quick. Third, he says, Katyal worries about the state legislatures. His concern is that they might make baseless allegations to flip the election to the losing candidate. But this would be both unconstitutional and a violation of multiple federal laws. If state legislatures in effect change the rules of the election after people have voted, that would violate due process. Federal courts have ruled that changing election rules after the election in the guise of,

quote, interpreting state election laws violate due process. This is the three in Bush v. Gore. That's their argument of what the state Supreme Court was doing that the legislature we know couldn't interpret state law in a new way. So why could the state Supreme Court? So yes, we've actually had plenty of litigation over this through the years.

And I liked this smaller point he made. Katyal is incorrect when he writes that state legislatures might make baseless allegations of fraud and interfere to get a different slate of electors appointed to the electoral college, as happened in 2020." No legislature interfered in the 2020 election to get a different slate of electors appointed. Some individual legislators tried, but that is a far cry from getting an actual legislature to do so.

David, that was such a big deal when we were watching this unfold in late November and early December of 2020 because there was a concern that maybe you could have some legislature actually vote on it, but none did. And for Katyal to get that wrong, frankly, I think actually is fear-mongering and some revisionist history there. And then of course, there's the Electoral Count Act. But I really like that Pildes is willing to get into some of the nitty gritty of right now, not hypothetically, not theoretically, these governors, this state legislature, these federal courts. But I also think that Katyal is right,

that there will be plenty of people, regardless of who wins this election, trying to undermine faith in the election results. Yes. Not legally. Yeah. But vibes and narrative, and that that can have catastrophic consequences

that aren't legal and don't affect who becomes president. Yes. No, that's what I'm more worried about. I'm more worried about non-legal self-help remedies designed to engineer chaos, create chaos, create confusion, try to take, you know, on January 6th, they tried to take over the process by main force. I mean, that is something that I'm concerned about. Although I also think that we've learned something since 2020 in that regard as well, that that we won't have a Capitol building as lightly guarded. If there is going to be. I don't think we'll have anything as lightly guarded.

I think states are taking this seriously. DC definitely is. But if those who have played around on 270 to win, want to play along right now, I was just on 270 to win. You know what? I literally had trouble falling asleep last night because I was trying to do the map in my head without waking up husband of the pod. And I was like, F it. And so I just like, got 270 to win out because I was like, ah, what if I'm wrong? You know, you can't like you fixate when you're kind of tired, but not for sure. Yeah. So I was fixating.

So Wisconsin and Pennsylvania by state law are not allowed to start counting their absentee ballots until the day of the election. Which is crazy that that is the law. That is, I mean, and this is let's just be clear. I mean, these are the Republican legislatures of these states that do not want this counting to take place. And it is grossly irresponsible. Like Florida, no one would accuse Florida being a squish red state these days, right? I mean, nobody's accusing Florida of squishy redness, but it counts its

ballots. Like Florida, after everything we walked through with the year 2000, Florida is now the SEAL Team Six of close elections. Like they've got this down. They've had some very, very, very close elections. And one of the things they do is they count. They count. And so you're going to have another situation. Because right now, if you look at the numbers, and these numbers are not helpful, in my view, and Sarah, you're much more professional on this than I am. A lot of these early numbers you see from Pennsylvania, they showed this big Democratic am. A lot of these early numbers you see from Pennsylvania, they showed this big Democratic firewall. Yeah. Unless you actually have the spreadsheet that the political team on the campaign in that state and really in that precinct is working off

of. Yeah. Those early vote numbers mean nothing to you. Yeah. You want to know which precinct they're coming from and what the overall margin of that precinct is before it would tell you whether that's unexpected or exactly what you'd expect. And they have all those numbers. You don't. Yeah. So but the one thing you that is true is as expected as expected, the Democrats are banking votes right now. That's as expected. Does not mean they're going to win. Everything I'm seeing says that Pennsylvania is a toss-up, but what it does mean is if the Democrats are banking votes

in the mail-in ballots, you're gonna get a very similar dynamic that you had last year, or last election cycle, which was Republicans do really well in the in-person, then the mail-in ballots start being counted, and those mail-in ballots take a wild account. So that's where you had some of these conspiracy theories are, were like, I was, when I went to bed, Donald Trump was winning Pennsylvania. And then when I woke up, Donald Trump was losing Pennsylvania.

What happened overnight? Nobody was voting overnight. Well, they were counting all those abs, all those mail in ballots. And so it's just grossly irresponsible. It's grossly irresponsible. And let me tell you again on the map of all the states to be this grossly irresponsible. I don't think I could pick to maybe if Arizona did it, maybe that would be worse than Wisconsin, but not by much.

Yeah. That basically, unless it's sort of a rising tide lifts all states type election, where it's largely, you know, tight elections in each state, but an electoral count route for one candidate or the other, there is no path without Pennsylvania. So for instance, assume Trump wins Georgia and North Carolina and Harris wins Michigan, Nevada and Arizona. We don't know anything until we have Wisconsin and Pennsylvania.

And if Trump were to win Arizona instead of Harris in that scenario, but she still wins Michigan and Nevada, he now wins Arizona, Georgia and North Carolina. If she wins Wisconsin, we're still waiting on Pennsylvania. Yeah. And again, you're right. That's really exactly what happened last time. Except, of course, because Trump lost Georgia and Arizona, Pennsylvania didn't matter as much. Yeah. But I just really don't know that that's going to happen this time. So I was I was looking at a an interesting chart that says, OK, let's look at all the current polling averages and presume a 2020 polling miss.

That was when in Trump's favor. Well, he wins all of the states, all of the swing states. Now you run the same exercise with the 2022 polling miss. And in that one Harris wins all of the states with the exception I think of Georgia. And so it's entirely possible Sarah that you have a close election that turns out to not be a close election. Close in the sense that all of the swing states break in the same way in a relatively close vote.

So you might have an average of a two point to three point margin, but they all break one way or the other, which is very, very possible here. Very possible. Speaking of which, we've got a unanimous opinion out of the Fifth Circuit. It has Judges Ho, Wilson, and Ramirez on it, so a nice little mixed partisan appointment panel of the Fifth Circuit there. And this involves the Texas Election Protection and Integrity Act of 2001.

So obviously it was passed in 2000. Sorry, 2021. I can't read. Okay, so I'm now reading. Among other provisions, SB1 restricts paid vote harvesting services defined as interaction with one or more voters in the physical presence of an official ballot or a ballot voted by mail intended to deliver votes for a specific candidate or measure. The theory of this provision is simple. Just as the state can protect the privacy of citizens who vote in person by prohibiting other individuals

from contacting them at the voting booth, SB1 protects the privacy of citizens who choose instead to vote by mail. So David, this is a vote harvesting law. Ballot harvesting, however you want to talk about it. And we've talked about these laws in the past because, boy, there's like some partisan lens on how you view this. This is actually what caused the 2018 North Carolina congressional race to be redone,

something that really doesn't happen very often, to redo an election. Interesting note on that, by the way, because I was asked this by a listener this weekend, what is the standard of proof needed to redo an election? And I said, well, that's funny because there's actually two different standards courts use, and it's not totally clear when you use one versus the other. One standard, as you can imagine, is there was enough fraud that would have made a difference. There's sort of a harmless error review. Okay, so you proved two ballots were fraudulent, but the election was won by a thousand votes.

We're not redoing the election because you didn't prove that enough ballots were affected by whatever the bad thing was. But there's another standard, which is basically this thing's so rotten, you can't trust the results. That's what happened in North Carolina. They didn't actually prove anything, really. This was a ballot harvesting operation by the Republican side, though there's some contention over who knew what, when, and all of that. But he was harvesting ballots in parts of the congressional district that were going to go against the Republican, Democratic parts of the congressional district. So the Republican is harvesting these votes and then pocketing them.

Yeah, throwing them away, basically. Right. Which I've said is actually the only real way I can think of to steal an election. And I've written on this of all the different ways people have come up within their heads of how to do this. This is the only one. And again, you'd have to do it at a relatively small level, like a congressional district. You'd have to know where the bad votes are. You have to actually have people take them from you. They never proved that he threw them away or anything else. But North Carolina

had a ballot harvesting ban. So that's what he was charged with and that's what they overturned the election based on. So before people get all partisan worked up about ballot harvesting good bad, this is why it's important because otherwise you have to prove what happened to those ballots and everything else instead of just proving that someone violated the law by quote unquote harvesting them. And of course there's all sorts of stories you hear of going to a nursing home and tricking old people into giving you their ballot for instance, filling it out for them, maybe serving as a witness or intimidating them into voting a certain

way, suggesting how they vote, ordering absentee ballots to people's homes, and then basically being there when it arrives in the mailbox and taking it to their door, same idea. That's why ballot harvesting may not be a great idea. Right. I look askance at ballot harvesting. I look askance at ballot harvesting.

It is the one part of mail-in voting that to me has real vulnerability to it. And it's the vulnerability you identified. It's the harvesting of the ballots and then not actually casting the vote, grabbing the ballots and not casting the vote. Now, that's not the way, you know, sort of the 2020 story of ballot harvesting went. But that to me is the vulnerability or the danger of ballot harvesting. So you have this Texas anti-ballot harvesting law that is not challenged. It's passed in 2021, or at least this challenge does not occur until. Well, they challenge it in August 2021. That's when the lawsuits filed.

So they challenge it right away. But the judge does not enjoin the law until September 28th, 2024, three weeks before voting begins in Texas. So the judge sat on it for just over three years before issuing an injunction three weeks before voting starts. And so you have a unanimous panel saying cough, cough, Purcell principle. Are you kidding me? Na, dog. Yeah, the the the delay on ruling on this is just unbelievable. It's egregious. My goodness. And so you have this ruling in September 28th, 2024. And the Purcell principle, which, if it me and, 2024, and the Purcell principle, which if it me

and just a brief review on the Purcell principle is basically don't make judicial changes in voting laws close to the election. That's all it is. Quote, close to an election, end quote. And you as a federal judge are supposed to use your judgment to know what is too close to an election to make judicially mandated changes to the election rules. You know what's definitely close to an election, David? Late September.

Three freaking weeks. Yeah. Yeah. I mean, like if you're close to an election, if you're arguing July, I'm going to be, nah, nah, dog. That's not too close. September 28th, 2024 is really, really close. September 28th, 2024 is really, really close. So to me, this was just a layup for the Fifth Circuit. Of course, look, there's given the joints on the Purcell principle.

I mean, it's not an absolute principle right off the top. You know, it's there are ways you can overcome it, but none of them apply here, including the one of them has to be that the underlying merits are entirely clear cut in favor of plaintiff. And it is not clear cut that there's a constitutional right to ballot harvesting. That is not clear cut. And indeed, many states have laws prohibiting it, like North Carolina that we just mentioned. Yeah. So you're going to hear, you've already heard, of course, a lot about the Department of Justice's

rules on making public criminal announcements close to an election. And I've talked about when those apply and when they don't and people can disagree with me and all of that. But the Purcell principle is the next one we're going to learn about right now, which is asking a judge to step in really close to an election day to change some rule. Nope, we're done with that now. If you didn't file your suit and get a ruling a long time ago, now a long time ago,

you're not getting one now, we're done. Yeah. And so, you know, the Republicans right now have 90 lawsuits pending across the country dealing with election laws. Now, some are defending, some are offensive, but there's 90. And state law is different than federal law, David. So that's why you're still seeing some of these rulings coming out of Georgia, enjoining things, staying things, when county officials will have to certify.

And that by the way is a little different because what election officials must do is slightly distinct from changing the rules of what voters must do. And there's a little bit of a gap to know what Purcell in terms of federal judges, what that applies to. Now I think basically if it's a line election official, Purcell probably applies. If it's the person responsible for certifying the votes, like the secretary of state or

something, Purcell probably doesn't apply because it's not really changing the mechanics of an election at that point. But I'm sure we'll be revisiting Purcell. Oh, I'm sure we will. And you know, it is interesting that some of the lessons of 2020, again, a theme here, some lessons are being learned. And one of the lessons is file them lawsuits before the voting. And that's been done. But if you can't make the federal judge rule. I know. Yeah. And we talked about before, that there's the every six month list

where you have a federal judge gets, it's public too, of like, you basically get shamed in front of your colleagues of whatever you have outstanding. And so you'll see this rush of rulings right before the federal six month list comes out. What in the world? This was just sitting there on so many lists for so long. Yeah, I was looking at the opinion.

Does it say when the motion was filed? I think August 2021. August, okay. So that's not just a lawsuit, the actual motion itself. Okay. Wow, that's- Pretty egregious. That's very egregious.

And again, if I would have not stayed and would have found the law lawful, especially because it has that little side provision that I don't know if you noticed David about defined as interaction with one or more voters in the physical presence of an official ballot intended to deliver votes for a specific candidate or measure. So that actually makes it a more narrow ballot harvesting law. In theory, if you're just a good Samaritan, you can go to the nursing home and help the

old people. You know, if you're a Boy Scout or something, that's your Eagle Scout project. Help the old vote. Yeah, yeah. Then you haven't run a foul of this law because you don't care. You're not doing it to help one candidate or another. Though most ballot harvesting operations. Well, it's a cleverly drafted law.

How many times have we said that? Not that often, but it's a cleverly drafted law in the sense that it is actually protecting that sort of what I would consider to be the closest thing you would have to an actual sort of First Amendment interest in ballot harvesting as sort of a good citizen effort. But even that.

Well, like there are certainly cases where, you know, a neighbor goes and picks up their neighbor's ballot to put it in the mail for them or something. If you have a traditional ballot harvesting ban, that would be unlawful. You're not going to get prosecuted for it, but you're kind of counting on the prosecutor's diligence, if you will. Here they've written it into the law. Great. Yeah.

So there actually is a mens rea element to this. You have to have some mental state to intend to deliver votes for a specific candidate. So David, this brings me to, as we looked at our 270 to win chart, elections in America are a little weird to explain to people. They feel a bit like the rules of cricket

when it gets down to the electoral college. Now, the electoral college is based on population in the sense that our congressional representation is based on population. So it's a state's votes in the House of Representatives plus two, right? So it's your votes in the House plus your votes in the Senate so that states have a vote, if you will, two votes. And that would make smaller states slightly overrepresented in terms of electoral votes per voters than the big states. Not hugely, because if you're a super small state, you're still only getting three votes. One House

vote, two Senate votes, versus Texas and California, which, you know, have a gazillion. And by a gazillion, I mean 40 for Texas and 54 for California, 30 for Florida, yada yada. Okay. But David, the history of, like, why we have an electoral college should bother people, in the sense that it's one of those compromises that was made to get the Southern states to agree

to ratify the constitution. Now, put on your history time machine, go back. You win the Revolutionary War against the British. You've set up the Articles of Confederation where each state is basically its own sovereign and it just comes together in almost a NATO style thing to do some things together, but not much. They can't raise revenue, no one's turning in their money. Actually, it sounds a lot like NATO style thing to do some things together, but not much. They can't raise revenue, no one's turning in their money.

Actually, it sounds a lot like NATO. Yeah. So then you have the constitutional convention where you're gonna give up a lot of your state sovereignty. Not as much as you're gonna give up in 1868. Yeah, it's true. But you're gonna give up a lot of it. And the Southern states are like, but our population

of voters isn't as big, but our population of humans is much bigger. And so this is why the three-fifths compromise is going to matter. Because the reason for the three-fifths compromise that because the reason for the three-fifths compromise that enslaved Americans only counted as three-fifths of a person for the purpose of congressional representation. So they couldn't vote, but they would still count the number of seats in Congress that you got. Therefore, it also affected the electoral college votes that you got for president. Now, we can go back to like the original sin of this. If you don't have that, you're not going to have a constitution. And so those states are going to remain sort of independent sovereigns. Who knows how long they keep slavery for at that point, because you're also not going to have a civil war.

So are you willing to have the three-fifths compromise? Are you willing to have that then infect the electoral college and why we have an electoral college? Because of what you then get down the road? I mean, this is like a great history debate that you can have on all of those first dates that I know you AO listeners, as you're meeting up on the apps are

doing. But fast forward to now, David, and we still have this electoral college, and we don't really need it because the states post 1868, as I mentioned, really have lost lots and lots of their sovereignty. People don't really think of themselves as first being from their state. The states already got rid of their true representation in the Senate through the 17th Amendment. Senators are directly elected, so it's not even like states have direct representation in Congress anymore, they give up on that.

Of course, unless you're from Texas, in which case, we very much feel that we are from our state. So with all that intro, David, would you get rid of the electoral college? So I would adopt the expand the house approach. So the expand the house approach would mean to the house, the number of legislators that we currently have in the House of Representatives, that's partially allocated based on population and we have not increased the number of members of the

House as the population has increased. For 100 years. For 100 years. And so remember the Electoral College is number of members of Congress plus your two senators. So if you increase the House, the number of members of the House, you will diminish the anti-democratic influence of the House, you will diminish the anti-democratic influence of the Electoral College. And so I feel like that's the best of both worlds in this sense, because I think that if you increase the number of

members of the House, you've got a more representative House, as was originally kind of understood the sort of the level of grassroots engagement that the House had and could have again with smaller number of constituents, you diminish the anti-democratic nature of the electoral college while preserving its very important sort of anti-fraud elements. Now, this is not what was intended, but there's a interesting argument about a popular vote. So what happens if you have a national popular vote and you have a 70,000 gap in the national popular vote or a 100,000 gap in the national popular vote or a hundred thousand gap in the national popular vote.

Very small gap, very, very small gap. The actual mechanics of with all of these different states, all of these different voting machines, all of these different ways in which people cast ballots, the actual process of going back and doing a recount in that circumstance would make Florida 2000 look like a recount of your local middle school, like your middle school class president. I mean, it would be almost impossibly complicated. And so my thought is diminish the anti-democratic elements by increasing the size of the house, preserve the electoral college.

But there's another thing. I'm less hospitable to just keeping things the way they are in part because there's one element of the electoral college here that this was actually supposed to be a check on popular will, but not the check that we have. Okay. The check that we have is basically, well, smaller states get a bit more say. That's the check that we have. But part of the check on the popular will for the electoral colleges, we're we're selecting these wise people and the wise people will actually select the president. Not that the wise that not that we're just

selecting people from our state who will go and cast a vote according to how the state voted. And this is, by the way, that Bush v Gore paragraph I read last time. State legislatures, in theory, can just choose the members of the electoral college themselves. We don't have to have popular voting at all. Absolutely. But not only do we now have popular voting in every state, also about half the states have bound their members of the Electoral College to the vote, meaning it doesn't matter

if they're wise or not. They have no discretion. No discretion. So this is not, you know, if people are saying, well, I don't want to depart from the original intent of the constitution, we departed from that. That train left the station a long, long time ago. The Electoral College system we have is not, and I think that's really important for people to understand,

this is not the system the founders envisioned. It's a system that has been maintained by inertia that has some other values, one of which I talked about just now as far as the, makes our elections really hard to, just now as far as the makes our elections really hard to it makes it's very very hard very hard to abruptly steal an American presidential election and one of the reasons why it's very very hardest it's 50 state elections and so I think you can preserve that by maintaining an electoral college system

but expand the House substantially, and you would not have the same outcomes that we've had in the last several years. Because I do think, and the one last thing I'll say on this, I do think if you have a democratic country and you frequently, not rarely, but you move into a world where you frequently

have a person that a majority of the voters don't want to be president, elected president, there are negative consequences to that. And I know that a lot of conservatives, because they temporarily benefited from this sort of new electoral college math, are just sort of like, we'll eat that, Libs, who cares? Over the long term, if this keeps happening, it's destabilizing. So a few things. One, just to run through those five elections. In 1824, that's the first election that the person who won the presidency was not the person who won the plurality of the popular vote. That was Jackson and Adams. And that was though, like, it was messy. Jackson got 42%, Adams got 31%, Clay got 13%,

Crawford got 13%. So that was really a pretty spread out election, not a one versus one. I'm not as bothered if the popular vote and the electoral college don't match up. That's sort of the purpose of the electoral college, which was still acting in its original capacity, if you will, in 1824. So I kind of want to chalk that one out as a not counting. Now we move on to 1876. This is the election that is the closest to 2000, except if you didn't like the outcome in 2000 or the process in 2000, let me tell you about 1876. This is Tilden versus Hayes. Tilden's going to win the popular vote. Instead, they're going to make a deal to make Hayes president, the Republican. And the short version of this story is it's going to come down to Florida and the deal that they're going to make as it gets thrown to the House, the Republicans in the House

will agree to stop Reconstruction. Yeah. And to pull out federal enforcement in the South in exchange for having a Republican president, a disaster of a compromise. If you want to read about the electoral shenanigans though, I mean, and there are, it's shenanigans. Yeah. William Rehnquist book is my favorite Centennial crisis. And he writes it in the wake in 2004 right after Bush v. Gore. That's 1876. 1888, it happens again, David. So just barely 10 years later, it's Cleveland versus Harrison. And it's a tight election. It's 48.6% versus 47.8%, but Harrison again, the Republican, is actually going to be seated as president. Then we go to 2000 Bush V Gore.

Then we go to 2016 Clinton and Trump. So, you know, I know people are fond of saying that, you know, we've had two elections just in the last quarter century where the person was seated who didn't win the popular vote. And I'm like, yeah, but that same thing happened again within 15 years before. and then it didn't happen again for 120 ish years. So I don't know. I'm willing to give it a little more time on that. But I do find it interesting, David, in those four that I think count.

The Republican is the one that benefited every time, even though the Republican Party itself had undergone massive shifts. That is wild. I had not really realized that until you said that. That's crazy. Yeah, 1876, 1888, 2000, 2016. All Republicans benefited. That's fascinating.

Even though I think I've said, I think the electoral college advantage that Republicans had in 2000 and 2016 has actually been shrinking pretty dramatically. I agree. There's a lot of smart people who are saying that as well because of the shift of the college educated vote. Now, can I give you my idea, David, to fix the electoral college? Because I think yours is hard to do because it involves changing the House of Representatives as well. I'm actually for it. I've it took me a long time. It's been a slow burn for

me, but I am on board with increasing the size of the house Jonah's won me over if it's gonna be useless now Let's make it let's try right. It's not like it's working so well You know This isn't the Chesterton's fence like the fence has broken down and has holes in it The sheep are traveling through it at a rapid pace. Yeah. Okay, but here's my idea, which is really easy asterisk.

Move to the Nebraska-Maine system and don't make the state's winner take all. So the two votes per state would be for the winner of the popular vote in the state, but the congressional district votes would be by congressional district, which is the same way that Maine and Nebraska do it. It makes every state competitive and proportional. And one of my

reasons to keep the electoral college, it's funny, I feel like this somehow fits our personality. Yours is all about afterwards and and calming national crisis. Yeah. Mine, of course, is from the eyes of a campaign operative. And that if we move to a pure national popular vote, I don't think you'd like the presidential campaigns that I don't think you'd like the presidential campaigns that people run because you'd run them nationally. You would concentrate on the highest density voter blocks and swing states change a lot

and frequently more frequently than I think people realize in Texas and California were swing states in my lifetime. Yep. Ohio was a swing state for the majority of my voting life. Now it's not. Georgia obviously wasn't anyone's radar 10 years ago and now look at Georgia, bell of the ball. Exactly.

So I actually think it makes presidential candidates and campaigns more responsive to changes in America and that if you moved away from that, you would have, I fear, parts of America that the presidents run to win, and then whole parts of America that not only don't get attention, because lots of states don't get attention right now,

but they're never going to get attention. And that will cause, I think, unrest in a way that, for instance, having presidential candidates that only need to campaign in one half the country versus another half the country caused political unrest. That was a bad idea. So I'm against the national popular vote pretty strongly for that reason. I think having proportional non-winner take all elections per state would deal with a lot of it. And I'd be curious. I haven't actually gone and run back 2000 or 2016 if I've been proportional. I was going to ask if you've done that. Yeah, we should do that.

Because it messes up everything, right? California has Republican congressional districts in it, obviously. Texas has Democratic one. So I'm sure someone's done this. And I'm sure it's going to be people in the comments section are going to go crazy. Oh, yeah, yeah. No, commenters do this for us, please. But you're right about the national popular vote as changing the dynamic in an interesting ways. Like, for example, if you look at California, California went for Biden by five million plus votes. So that's the largest, that's the largest popular vote chunk for the Democrats right there is California. 11 million 110 thousand to 6 million 6 thousand. And they got all 55 electoral college votes. Now it's very interesting if you run this

Sarah because the largest vote getter for the Republicans is Texas. But the gap in Texas was about 600,000 votes. And so they got all 38 electoral college votes with a 600,000 vote win. Very interesting. And what happens if you're a Democrat? Are you pouring money into California to see if you can get that 5 million gap a little bit higher? Are you pouring money into California to see if you can get that 5 million gap a little

bit higher? Are you pouring money into New York to get that gap a little bit higher? I think you would end up doing that and then you would have the rural parts of America, if you think they're forgotten now, wait until we're in a national popular vote. So I think that either your solution or my solution, I think retains some of the remaining decent elements of the popular vote without going, without retaining the elements that are proving to be pretty, could be potentially dangerous.

Now, the interesting thing that's also distorting all of this is you have one party of the two that has somehow lost the ability to win a national popular vote. Now I know that neither one are running for it. So no one's running for the national popular vote. But the Republicans have only gotten one popular vote since 1988.

Yeah, but it really matters, David, a lot to me. Like, again, as someone who did this, you're not running for the national popular vote since 1988. Yeah, but it really matters, David, a lot to me. Like, again, someone who did this, you're not running for the national popular vote. I know you said that. But like that that's silly in some ways. Like look at right now, Harris isn't running for the national popular vote. If she happens to win it, that doesn't mean it was strategic. That just means that a whole bunch of people in California voted for no reason, basically. Like why is that rewarded?

Yeah, but that's really sad that we can actually say a bunch of people in California voted for no reason. Yeah, I don't like that. But like all candidates, both candidates are focusing on these six and a half account. Nevada is a half state on these six and a half states. That's the game. The national popular vote does not matter. I don't care, except to the extent that we actually think it represents

where most Americans are and that the electoral college is skewing it. But just looking at the national popular vote doesn't tell me that. I would be with you if it had been once or twice. But the fact that it's been since 88, that one party has not won a popular vote. But that doesn't, but they lost the whole election on several of those. That's how you're going to go back to 88. They won more than, they won two of the three

without the popular vote. Wait, I'm confused. Bush won in 2004. With popular vote, that's the only one. Yeah, yeah. So Bush won in 2000 without it. You're saying 88 they won 2004 with popular vote. That's the only one. Yeah. Yeah, so Bush won in 2000 without it You're saying 88 they won with the popular vote 92 and 96 they lost the whole election with that with they lost popular vote 92 96 2000 Popular vote doesn't matter. No, no, I know but I'm saying the sheer

The sheer number of elections in which the Republicans best popular vote outcome is a, what was it, a two percentage point win in 04? It's telling you something about the popularity of the Republican Party. Now, any given election, I'm with you. They're not going for it. They're not trying for it. But when you have a large sample size of 92, 96, 2000, 2004, 2008, 2012, 16, 20, you've got eight elections and one popular vote win and three presidential wins of the eight. I think that to me, that situation, I don't know that we've had a similar, a similar level

of drought in American history. Nothing has matched that, that I'm aware of in American history. Right, back to 1876 and 1888, Republicans were winning all of those in between as well, and they were winning the popular vote in those interim elections from the Civil War on. Okay, David, fun convo. I bet we revisit it. I bet we do. You wrote a piece called I Don't Want to Live in a Monoculture and Neither Do You. Do you want to summarize it for us?

Yeah. So I wrote this piece really off of another longer report by my colleague, which is I'm actually much more interested in talking about that than my piece. So Nicholas, oh gosh, Nick, I'm going to apologize. Confessori. Confessori. Okay, yes. Confessori. Nicholas Confessori wrote a deeply reported piece, just deeply reported on the failure

of DEI in Michigan. And when we say failure, we're talking about after massive expenditures, I believe the number was well north of $200 million spent, hiring scores of DEI administrators, implementation of extremely expensive DEI programs. And at the end of it all, you still had only about 4 to 5% of Michigan's student population was black. After spending a couple hundred million dollars, also found that there was a lot of evidence

that the campus was just a much more contentious place. That there were complaints that were made, some of them, many of them frivolous against teachers who didn't use highly specific kinds of DEI mandated language. It was just the most voluminous, comprehensive look at one big school's experience with going all in on DEI. And there were a couple of things that stood out to me about it, one of which is I wrote.

And that is the whole darn thing was doomed to fail because it was completely encapsulated within a far, far left ideological cocoon. So it wasn't that, and this is the thing that when we're talking about diversity, equity, and inclusion, it wasn't that this was, hey, let's get the brightest minds that we can think of or we can find to advance these three interests. It was, let's find really bright people within this highly bespoke far left ideology who are going to try to help us accomplish these goals. If you've brushed up against DEI bureaucracies, this is something I was so glad that Nick

highlighted, if you brush up against these DEI bureaucracies, as I have over my entire career, it is they define ideological monoculture. They are so far left in a very bespoke level of far left that it's almost hard to fathom. And so I wanted to highlight just the mere fact that the monoculture is going to put them in a difficult, because you don't take an extremely difficult problem nationally and then say, well, only the tiniest slice of the American left

is qualified to fix this. No, you're doomed to fail. And then the other thing that I thought was interesting that I did not highlight in my piece because I've highlighted it in previous pieces is just how illiberal it was. So it's a monoculture and it's so illiberal, coercive. As monocultures tend to become.

As they tend to become. When you get people of like mind, they become more extreme. And so it was just interesting to me because I feel like I've not seen long, closely reported analyses of DEI that have really nailed it. They've really nailed it. When someone is upset about DEI, they're not upset at diversity. They're not upset, well, some people are. They're not upset at equity. They're not upset at inclusion. They're upset at an extraordinarily illiberal movement that uses the language of diversity,

equity, and inclusion, often in ways that contradict all of those values. So I- Yeah, and I thought your piece, but I mean, yeah, all credit to Nick here. Yeah, yeah. And we'll put that longer one in the show notes. The parts that I think most resonated with me was as you said, their stated purpose

might've been diversity, equity and inclusion, but it wasn't. Right. It was to enforce the monoculture. And so it became more and more liberal. Then it became more and more toxic. Yeah. To the point that you weren't allowed to say things that would actually be diverse or to express any opinion diverse from the monoculture. And it wasn't about inclusion. It was actually about exclusion.

Yeah. Because part of what makes any monoculture really the fuel for it is having an in-crowd and an out-crowd. Yes. And so you constantly have to read keep redefining the in-crowd further and further to the extreme because otherwise there's not enough out-crowd. And as you keep enforcing it and incentivizing or making it painful to be part of the out crowd, people are like, fine, I'm in the in crowd. Well, nope, that doesn't work for them either. And so that's how you get language just quickly evolving so that things that were fine to say 10

years ago within the DEI subculture aren't okay to say anymore. And they keep redefining those new words because people have to keep trying to crawl to the top of the monoculture. So that was number one. And number two, of course, and I'll just read from yours here, David. Those ineffective policies were promulgated and enforced in part through a campus culture that was remarkably intolerant. Confessori's report is replete with examples of professors who faced frivolous complaints of race or gender bias. And after Hamas's terrorist attack on October 7th, when the university's commitments to pluralism

were put to their toughest test, Michigan couldn't meet even its most basic legal obligations. In a June news release announcing the resolution of two civil rights complaints against the university for anti-Semitism, the U.S. Department of Education said that it, quote, found no evidence that the university complied with its Title VII requirements to assess whether incidents, individually or cumulatively, created a hostile environment for students, faculty, or staff. End quote, the school also did not, quote, take steps reasonably calculated to end the hostile environment,

remedy its effects, and prevent its reoccurrence. End quote. So if the whole point is inclusion, Yeah. and you have a legal obligation of a floor, if you will, on inclusion. Floor, this is the bottom, this is the lowest bar.

Do not have a pervasive and hostile climate for students based only on a few characteristics, their race, their gender, their religion. They couldn't even meet that floor, really the first time it's tested. And this goes straight to, I didn't put it in this piece, but this goes straight to back to this ideological monoculture because in this ideological monoculture,

the oppressed cannot be oppressors. And so if you've got Students for Justice for Palestine or you've got pro-Palestinian protestors, they are in this, again, highly radicalized, settler-colonial, bespoke ideology, they by definition cannot be oppressors. Yes, but of course, words have meaning. And diversity, equity, and inclusion,

inclusion has a meaning. And that is that you're including everyone in your culture on your campus, diversity of everything, of religion, of thoughts. And again, that's a great goal to have, but we do have a legal floor for it as well. So even as you're trying to aspire to a ceiling of, no ceiling, to have everyone just feel as

included and diverse and all thoughts and ideas and nothing's out of bounds. And actually that sounds like what universities are supposed to be. But just in case we have this legal floor, legal floor, legal floor below in Michigan, this, you know, place that has poured millions and tens of millions of dollars into this utopia. Ten hundred plus million dollars couldn't even meet its Title VI obligations. And that's sort of the ballgame. That's the ballgame. And again, this is ideological.

This is ideological. The well was poisoned way before. And the other interesting thing about this to me was, again, so this is DEI, the D in DEI's diversity. And one of the issues is that the DEI, that essentially diversity of ideas not on their radar screen at all. And not only is DEI, I mean diversity of ideas not on the radar screen at all. When the university tried to take measures emphasizing that you're going to be exposed to uncomfortable ideas,

guess who pushed back on that? The DEI bureaucracy. So they're actually pushing back on one of the most critical elements of diversity at the entire university, which is ideological diversity. It's also interesting because of course, they say that the purpose, if you ask like, okay, what's diversity? Oh, racial diversity, let's say. Okay, what's the purpose though of racial diversity? At the end of all of the like, okay, but what's the purpose?

But what's the purpose? But why is that important? What you should get down to is diversity of thought. Yeah. Because of your diversity of experience. Okay. Because of your diversity of experience. Okay, but why is diversity of experience important? Well, because people are going to have different ideas on how to fix problems, on how to address confrontation or whatever else because of their experience and that experience is because

of their race and that, you know, all the way up. If diversity of thought is where you end up on any sort of diversity conversation, they don't want diversity of thought, then they're not actually for diversity. They're for something else. And David, the point of your piece, the point of Nick's piece is to do great reporting on the failures of DEI after 200 plus million dollars at the University of Michigan. But the purpose of your piece, I thought, that was important and worth talking about here, is the failure of a monoculture, no matter what the stated purpose is.

Because a monoculture will always enforce mono. A smelly little orthodoxy. That's right, no matter what your stated purpose is. And so whatever group you belong to, friends, religion, anything else, beware of monoculture because you can throw stones at DEI all you want and it's easy to throw them. And I think there's more invidious discrimination because of it at places that, again, we have a legal floor for that. So this is not to say that all things are equal, but be aware of monoculture in your own life.

100%. And the more difficult and challenging the issue, the more you need different ideas. Um, this idea that you're going to take. So for example, between, you know, 19, 1904, we had 355 years of legally-enforced, violently-enforced immigration in the United States. How do you unwind from all of that? It's hard.

That's really, really, really, really hard. And the idea that this small community of ultra far left activists and administrators have figured out the secret sauce and don't need to hear from anybody else and anybody else who disagrees with them as part of the problem is just fantastical, Sarah. It's fantastical. But this is exactly what happens when you create the monoculture. The monoculture gets high on its own supply. It starts to see itself as the only source of truth. It starts to see other cultures and communities as threats to its dominance. And apparently this is the way Michigan is reacting to these stories.

Well, with that David, I'll see you in a couple days. Thanks everyone!