Advisory Opinions - Is Elon Musk's Million Dollar Raffle Legal?

Episode Date: October 24, 2024

Sarah and David discuss the latest voting trends and break down recent cases related to election law. They overview the legal nuances and explore the implications of potential rulings for the upcoming election. The Agenda: —Anti-absentee voting? —The legality of Elon Musk’s “raffle” —Virginia lawsuit —Texas death penalty case —Electoral College and slavery —Filibuster impact 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

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and hey, guess what? The Dispatch is having a post-election summit on November 12th at the National Press Club in Washington DC and I will be having a conversation with Judge James Ho of the Fifth Circuit but if you're interested in coming to this little dispatch summit it's the dispatch.com slash summit and you can sign up to join us on November 12th. David despite him being great friend of the pod, he's actually not been on the pod before. I know, I know.

So, you know, Sarah, can we say great friend of the pod if he's not been on the pod before? I mean, Judge, if you're listening, the phrase great friend of the pod has a limited shelf life for people who have not been on the pod, but absolutely, he is a friend of the pod has a limited shelf life for people who have not been on the pod, but absolutely, he is a friend of the pod and that'll be a great conversation. And you know, Judge Ho has been mentioned

on many a short list. If Trump, for example, were to win this upcoming election, which by the way, David, is less than two weeks away now. Amazing. This election season has flown by. So I have a funny contradiction in my beliefs on this, which is that I am against early voting from like a theoretical perspective,

but also from a campaign operative perspective, early voting is super important and you wanna get all your voters to early vote. And I feel like this isn't contradictory to me because from a theoretical standpoint, I think election day should be a federal holiday and we should really have all Americans voting on the same day.

There's a reason we have these campaigns and if you were to learn something, a couple of days before the election or whatever else, be a real shame if you voted to learn something, you know, a couple days before the election or whatever else, like, be a real shame if you voted six weeks earlier, like in Virginia, at the same time. And by the way, so in my, it's a federal election holiday, and there's still, you know, excused absentee voting. If you're not able to vote on election day, like, that's why we have absentee ballots.

And 20 years ago, that actually used to be much closer to reality. If you would check a box, like, I'm going to be out of town, I'm too sick to leave my house, something to that effect and you could get your absentee ballot. That's just kind of what I want to return to. But from an operative standpoint, if you can bank votes before election day, of course you want to do that. It would be malpractice not to. And something that we're seeing, David, that looks pretty interesting compared to 2020, pre 2020, Republicans were actually slightly more likely to vote absentee. In 2020, obviously that switched dramatically. Democrats far more likely to vote by mail

than Republicans. This caused a lot of the angst in the 2020 election outcome. We're seeing a little bit of a return to normalcy, if you will, David, this time. It looks like when it comes to early and even absentee voting. So that's probably good for our election system. Yeah, that's absolutely. And I don't see anything inconsistent with you saying,

I don't love all the mail-in voting and early voting, but by golly, if I'm an operative, we're banking mail-in voting and early voting. It's just like saying, if I'm a basketball coach, I don't like the three point line. I wish we didn't have the three point line, but while we got it, guess what we're doing? We're shooting a ton of threes

because three is greater than two. There's nothing inconsistent with that. You can think the rules should change, but while the rules are what they are, you can, you play by those rules. Which was always one of the- It a little bit goes back to the electoral college versus national popular vote.

You may want it to be a national popular vote, but you'd be pretty dumb if you don't try to get votes in these swing states that have electoral college votes that matter. Yeah, exactly, exactly. Yeah, no, exactly. Yeah, no, there is no inconsistency there. It is absolutely the rational response.

I mean, I would doubt anybody says, hey, the current election rules are exactly just right. That's exactly what they need to be. No, everybody has some degree of beef. All right, well, I thought we would run through just a few cases in the news right now, a couple of election law cases, a death penalty case, and then go through some mailbags from our listeners.

So David, to start off, Elon Musk, he's doing a thing. So he has a pack, and it's like this, you know, sign on to the constitution pack. And if you sign up for that, you must be a registered voter to sign his pledge for his pack. If you sign the pledge for the pack, you are automatically entered into this raffle and one voter in seven battleground states is pulled each day to win a million dollars.

So let's start with the fact that this is an earned media stunt and it's worked because we're talking about it. So this has come up a lot in the like Trump McDonald's thing. They're like, it's a stunt. And I'm like, yes it is, but it worked. That's what stunts are. Both sides try to do stunts. Campaigns are stunts from start to finish.

That's right. Are you telling me that these folks ordinarily just go to all the state fairs and eat all of the food at the state fairs? I mean, that's, or that they're constantly going to donut shops and they're constantly going to diners. No, it's stunts from start to finish. That's right.

And they're like, well, the McDonald's was closed. Those weren't even real customers. And I'm like, yes. Usually a stunt isn't quite what it seems on its face. I mean, when you do, what was the the undercover boss show? Like, yeah, that probably wasn't quite what it seemed to be either. Anyway, stunts or stunts.

Greatest undercover boss episode, Kylo Ren, Sith Lord undercover boss, Saturday Night Live. So good every time. I do remember that. Adam Driver's got a good sense of humor. Oh, he really does. Okay, so Musk is giving away a million dollars a day to a registered voter in a battleground state who signs up, signs his pledge for his super PAC. And the question is,

is this legal? Because you are not allowed to pay people to register to vote and you're not allowed to pay people to vote either. And I have seen now several stories quoting all sorts of election law experts that say this is crazy illegal. I definitely fall on the other side of this. Do I think it's pushing that line? Like for sure. I don't think there's much question about that. But let me give other examples of things that are definitely legal and that the FEC, for instance, has said are legal. So if you donate money at a campaign event and you're entered automatically into a raffle, that's fine. And in fact, there's pages. You can go on the FEC's website and see all the rules that you have to do for a raffle of that sort. In Georgia, and we talked about

this, David, at some point, because I said it was one of the most effective new get out the vote efforts I had heard of in the last many, many years, in Georgia in 2022, the Democratic Party paid low propensity voters to text or contact their other low propensity voter friends and encourage them to vote. So they weren't technically paying voters to vote. But obviously they were only contacting people who were registered to vote. You had to be registered to vote to be eligible for this program. And then you weren't a frequent voter and they were paying you to encourage other people to vote.

And by the way, they touched about 160,000 people through this program, it was a pilot program. And they found that voter turnout increased about 3.6% among this group compared to the control group that they were basing it on. 3.6% voter turnout increase is huge for a get out the vote effort. That's a really big deal. So again, it was highly effective. But I can't imagine why that would be legal, but this wouldn't be. That actually seems far closer

to the line and still legal to me than this, where you just have to be a registered voter and you're actually entering people into a raffle for signing a petition. What do you think David? Yeah, okay, let's read a little law. So 52 USC section 10307, that was very awkwardly stated. 10307C, whoever knowingly and willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility

to register vote or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years. Okay, so the obvious question is, is this a payment or offer to pay or accepting payment for registration to vote? And so the DOJ elections crime manual says,

the bribe may be anything having monetary value, including cash, liquor, lottery chances, and welfare benefits such as food stamps. Okay, and for it to be a lottery chance, it must have been intended to induce or reward the voter for engaging in one or more of the acts necessary to cast a ballot, which would of course include registration.

So if you look at that, it seems, okay, this is a lottery chance, right? You're giving people a lottery chance in exchange for registration. Or is it that? Because are you actually giving them a lottery chance for signing the petition? That's right. And the other thing I'd point out on that, David, is that I would think this was a very different thing if you had to show that you were a new registrant. Right. Like, oh, if you're a new voter and sign this petition,

that's much closer. It does look like you're inducing people who were not otherwise going to register to vote to register to vote, but here you could be registered for 50 years. And as long as you now sign this petition, you're entered into the raffle. Right, so the way I read it is if the actual inducement that Elon was doing was, you get

a chance for a million dollars if you register to vote. Register to vote, you get the chance to a million dollars. Now, this is sign my petition and you get a chance to a million dollars. Who can sign my petition only registered voters in a certain state. You might say distinction without a difference, but as you were talking, Sarah, when you're talking about these other similar schemes or these other similar programs, there were very fine distinctions that created a big difference. So in this circumstance, when you're talking about criminal penalties, let's also remember lenity, for example.

So criminal penalties here, I think that very fine distinction that says, wait, it's for signers of the petition, and you can sign the petition even if you've been registered to vote in that state for 25, 30, 40, 50 years, I think that takes it out of criminality. And we're not the only people who think that as well. Brad Smith has said that the exact same thing, that the signing of the petition is the inducement here, not registration, registering to vote. And even though again, this is a very fine distinction,

those kinds of distinctions make a difference. All right. So next up, David, is this Virginia lawsuit. Okay, so starting with the law here, the National Voter Registration Act has a 90 day quiet period where you are not allowed to systematically remove voters from the voter rolls. All right. So on August 7th, exactly 90 days before the election, Governor Youngkin of Virginia signed Executive Order

Number 35 authorizing daily updates to Virginia's voter rolls, including comparing the Virginia Department of Motor Vehicles list of individuals identified as non-citizens to the list of registered voters. Local registrars were then required to notify voters whose citizenship status was challenged, informing them that their registration would be canceled unless they confirmed their citizenship within 14 days. The Department of Justice a we can half ago, filed a lawsuit to prevent this. They're arguing this violates the quiet period because all of these daily checks

have to happen within the 90-day quiet period. Now, Youngkin has responded to say, first of all, this has been on our books since, I'm forgetting which governor, it was a Democratic governor signed it in 2003 or something like that. Long time. This is just an executive order sort of reaffirming what Virginia's election plan is going to be. Second, he says, 25 days before the election you filed this, that seems way shadier in terms of trying to interfere with a state's election process. I have some facts missing from this case, David, in order to have a strong legal opinion about it. But I thought it was at least worth talking about what facts I think are relevant. So, for instance, we know that during that 90-day period, you can't then do your purge removing inactive voters, for instance.

So a month before the election, you can't go through and say, anyone who hasn't voted in the last two elections, we're removing you 30 days beforehand, and you've got seven days to cure that to stay registered. And by the way, the registration period has passed. But this I'm a little unclear on because if it is simply that if new registrants then have their voter registration checked against the DMV records and what happens is when you get a license you say whether you are a citizen or not a citizen and if you checked the no box you're put on the presumptively not citizen list. So they're checking the new registrations against that presumptive no list

each day that new registrations come in. That is not a systematic purging of voter rolls. No. And that would not violate the quiet period because it's individualized. If they're simply using this time period to each day go through the voter list for every precinct this time period to each day go through the voter list for every precinct and now check it against the DMV records, that to me would look more like removing inactive voters. You didn't need to do it in this 90-day period. You're not just looking at new registrants. You could have done it six months ago, but you didn't.

So David, what do you think of just that part before I add in more details. Yeah, I'm with you on when you're talking about routine-ized checks to essentially confirm eligibility to vote, that doesn't strike me as the kind of thing that is encompassed within this quiet rule meaning. So I'm with you on if this is routine-ized system systematized checking for validity and verification, I don't see how that is an election law violation or I don't see that as legally problematic. So let me add a new wrinkle here, David. Virginia has same-day registration as of this, well, 2022 was the first time they were doing it. So you can walk in on election day and register to vote.

This seems relevant to me because if you were removed for any reason that was inaccurate, you could just come in and re-register on election day as I see it. Now again, maybe I'm gonna get Virginia election law wrong here that somehow you would be flagged because you had been removed before, but assuming that's not accurate,

you have this 14 day cure period in the executive order, but you really don't need the 14 day cure period if you have same day registration. The whole purpose of this 90 day quiet period was that at the time, same day registration, you know, in 1993 when this law was passed, same day registration basically didn't exist. Right.

I'm not sure what the 90-day quiet period is really doing if when you go in and they're like, oh, you're not registered to vote, you were removed from the voter rolls. And you're like, what? I wasn't an inactive voter or a non-citizen or for whatever other reason that you were purged from the voter rolls.

They're like, normally the reason we passed this law is because you'd be turned away at that point. But if instead they just hand you a form and they're like, just re-register and then you can vote, I'm not sure I quite see the problem here. You know, this is, there's a category of lawsuits and legal dispute over voting that is much sound and fury signifying nothing.

And, you know, this is one of those. And this is one of those areas, this is one of those categories where it feels to me like it's the kind of thing that if you don't know how the system really works, on first blush when this is all described, it sounds like, oh, wait, what's going on here? But then when you walk through the actual process as you just did, Sarah, then you realize, okay, wait a minute,

what's the brass tacks here? How many people are actually being removed without recourse? Then it starts to sort of disappear and this illegal significance starts to diminish. And prior to 2020, this was kind of the dominant way we fought over voting rights, was over changes to voting roles in ways where you would throw around numbers that sounded really significant,

like 50,000 people removed from voting roles, until you realize, well, this stuff just happens all the time because people move, people pass away. And a lot of our dispute was over these kinds of numbers or these kinds of registration requirements that if you don't know the process, sound consequential, but when you actually know the process, aren't that consequential at all.

And this is how this case seems to me. Now I'm very open to listeners telling me otherwise, very open to that, would be pleased to read pushback on that point, but that's where it stands for me. Also, interestingly, when this law was first signed by the governor, again, I think it was 2003, they actually had to go through pre-clearance under the Voting Rights Act, if you remember, section five preclearance, anytime a state that had previously had, was bound to have had discriminatory voting laws would have to get changes to its voting laws

precleared by the Department of Justice. So this went through the preclearance process. Now, DOJ is saying the Voting Rights Act pre-clearance is a different standard than the Voter Registration Act of 1993. Yeah, except I would think that if you were pre-cleared under the Voting Rights Act, it's sort of like which one is the floor and which one's the ceiling type thing. But I would have thought that the Voting Rights Act was a more onerous standard to meet than the Voter Registration Act. Yeah, it strikes me as-

Not that they're the same. I get DOJ's argument here. They're like, well, we pre-cleared you under the VRA, but now 20 years later, we're suing you under a different law because, you know, okay, I see how they're different laws. I think their better argument is we pre-cleared you to do this in general, not within the 90 days. Right, well, yeah, I think I get that, but it does seem a little weird to say, well, we pre-cleared you,

but it violated otherwise applicable law. Wait, wait, why is that, why is it eligible for pre-clearance then? What's? Yeah, since then, of course, preclearance was struck down by the Supreme Court because Congress had not updated the list of states. And so it was sort of this odd list of states from, I guess it was in the early 80s that the preclearance list had last been updated. So preclearance is no more. Um, but nevertheless.

So, all right, David, that's the Virginia lawsuit. Again, I'm not even sure how this is really going to get resolved at this point, but there we are. Hi, I'm Chris Stierwald and I have devoted my vocational life for decades to my fascination with politics. I love it. But I don't think you should have to in order to be a good citizen of this great republic. That's why every week I publish Steyer Walt on politics, my newsletter at the dispatch

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I have a death penalty case I wanted to tell you about, which it's in Texas, a little interesting. Robert Robertson was convicted in 2003 of murdering his two-year-old daughter. The state argued that he had abused her based on injuries to the little girl's head and face, and that her injuries were consistent with shaken baby syndrome. Since then, shaken baby syndrome has been largely debunked, but he was sentenced to death and all of his appeals failed. The day or so before the execution was to be carried out, a committee in the Texas House, which consists of seven members of both parties, issued a subpoena to Roberson to have him

testify before the committee. Then just a few hours before the execution, the committee went to a civil judge in Austin to request a temporary restraining order based on the subpoena to stop the execution. The state then filed a writ of mandamus to the Court of Criminal Appeals, which has jurisdiction over criminal cases and executions. They vacated the temporary restraining order, as in the execution was back on. Then the committee went to the Texas Supreme Court and requested an emergency stay of the execution, which was then granted execution back off. And in Texas, David, just worth a little primer for folks, the Texas Supreme Court and the

Texas Court of Criminal Appeals are equal. They are both the Supreme Courts of Texas. One does civil and one does criminal. So this is already a little weird that we have dueling Supreme Court opinions. This seems like a mess to me, David, in terms of the precedent that it sets. So a single committee of legislatures can issue a subpoena to stop an execution in the state. What about another state? What about if a prosecutor from a different county

issues a subpoena? Like, if subpoenas can stop executions and could have stopped executions this whole time, I don't know that we're gonna have a lot of executions moving forward basically. And again, you may like that as an outcome, but this is no way to run a railroad as far as I'm concerned. Well, no way to run a railroad, Sarah,

kind of sums up a lot of our death penalty process, to be honest. Yeah, I can see the slippery slope problems here when you're talking about, is just a subpoena sufficient? At the same time, I can also see a state Supreme Court saying, wait a minute, you actually have a House committee who's wanting to hold a hearing on a law

that is very specifically applicable to this case. Okay, we have some separation of powers issues here, etc. I can see how this happens and I can see why a stay could be appropriate in this circumstance. But I think, Sarah, really the main event here is the issue regarding the execution itself, is the shaken baby syndrome element of this case. And it's worth, I think, explaining a bit of the facts here. So basically when he rushes his young daughter to the hospital, his young daughter has the triad of symptoms. Okay, this was when shaken baby syndrome was first developed, it essentially

said there was a triad of symptoms, unexplained bleeding on the brain, bleeding behind the retinas and brain swelling. So the theory in essence was unless you had a readily definable reason why these things occurred together, that this presumption was they could only occur through sort of the shaken baby process. And then also you combine the triad was present, also this individual, Mr. Robertson, didn't display what the nurses and doctors at the time thought was proper emotion when his daughter was brought in and she later passed away. Now the defense says, wait, that's ridiculous,

he's autistic, one of the symptoms of autism is that your emotional responses are not always matching the moment in the way that it does with other people. And they said at the same time, we have an explanation for these symptoms, for the bleeding on the brain, for the bleeding behind the retinas, for the brain swelling. And the explanation is these symptoms, for the bleeding on the brain, for the bleeding behind the retinas, for the brain swelling.

And the explanation is she fell, according to his testimony, fell out of bed when she was very, very sick with pneumonia. And so what actually happened to her, she was very sick with undiagnosed pneumonia. She was running extremely high fevers. She had extremely high readings of Finnergan. She had been prescribed

Finnergan, an anti-nausea medication that's now no longer prescribed for children of that age. So she had a high dose of this anti-nausea medication. She had undiagnosed pneumonia. She fell out of bed onto a hard floor. There was evidence of a bump on her head from that. And besides, if you're going to have the core critique of shaken baby syndrome was that, wait, wait, wait, to actually create the kind of symptoms that bleeding and all of that brain swelling, et cetera, you would have to shake the baby so hard that there would be neck injuries and neck damage

and damage maybe to the spinal cord. And none of that is present here. And so, essentially, the argument, it's so similar, Sarah, we've been talking about these other death penalty cases, which is, wait, you know, it's not that we have the proof of innocence, it's that development since the trial have really raised a ton of questions about innocence and what do we do in that circumstance? And here, Texas, interestingly, and this is one little side point, before the current era, Texas was actually known,

the current political era, MAGA political era, Texas is actually known as an innovator in criminal justice reform. Texas was one of the more interesting states in innovator in criminal justice reform. Texas was one of the more interesting states in the union on criminal justice reform, and they very interestingly have what I think is just an excellent state law that allows for essentially a junk science writ. In other words, if there was a change in science to the point where a scientific field has evolved to an extent that the testimony that convicted you has been discredited and the

experts have changed their understanding of scientific knowledge or there's new forensic testing techniques, you can file a writ under this law seeking review of your case. And this has been related to things like bite mark testimony which has been held to be junk science to some extent. And there have been other ways this would apply to DNA testing, this would apply maybe to things like recovered memory,

which was used to convict people. So there's a lot going on here, Sarah, but the core, the reason why there's all of this contention is that a lot of people are very uncomfortable with putting a man to death under the shaken baby theory. And again, I don't have any expert knowledge about the evidence in this case or anything beyond what you said,

except jury convicted him, all of his appeals failed. What I don't think should be another round of appeals is a hearing at the legislature that could have happened at any time in the last 20 years, but instead was scheduled to happen just after his execution. Don't think we want that. I don't think there's any doubt at real reason.

I don't think there's any doubt that this was a ploy to try to, this was a tactic to try to get his execution stayed. I think that's the fundamental reality here is that this was a last ditch attempt to get his execution stayed. I think that's the fundamental reality here is that this was a last-ditch attempt to get his execution stayed because for all of the reasons that I just talked about, once again, we're looking at a looming execution where there have been quite a few new developments since the trial. They're not the kind of developments that absolutely establish innocence, but they're also developments that make you wonder,

would a jury have been in a million years, sentenced them to death under these circumstances, under these facts? That's why we have a legal process. This isn't the legal process. This is something else entirely, that the governor can commute his sentence, the governor can pardon him.

That's where the legislature should be putting their pressure, but the idea that a legislature can step in and override a judicial process, I think, is a really, really bad precedent. Yeah, well, it's interesting. We're going to see how this goes over. Right now, we have a temporary stay. So this has not been his death penalty. His death sentence still exists.

It is still set to be imposed on him. So this is all temporary stuff right now. So we will see how this unfolds. All right, now let's go to some mailbag questions, David. So first up, lots of people had thoughts about our suggestions for tweaking our presidential elections. People did not like my suggestion of moving to a

proportional non-winner-take-all Nebraska-Maine system. And many of them pointed out one big downside or unintended consequences. Redistricting would become a mess under my system where every district now could decide a presidential election. You thought redistricting fights were bad now when they were just deciding one out of 435 members of the House? Fair enough. That is a downside. I'm not looking to make redistricting more painful than it already is. But, you know, right now we've also had this incentive to push these districts,

you know, basically to have these very safe districts for members of the House. There could also be a counter pressure. You would want as many potential districts as possible for your future presidential candidate. Right now, that's not actually how the parties see the redistricting process. They might be okay giving one to the other guys if an incumbent can be safe, because the incumbent's the one who votes on this, and they like it when they're really safe. So, I don't know. Who knows what the unintended consequences of this would be on redistricting. It would clearly become much more politicized, but it might actually make for more competitive districts and fewer of these plus 15 districts on either side. Yeah, after that we recorded the podcast

and I started to read through the comments, I realized that your plan and the role of gerrymandering in your plan, because more states are controlled by Republicans than are controlled by Democrats and there's been a lot of gerrymandering to keep that to to to help preserve that Republican advantage to such an extent it was fascinating there have actually been folks who have done the analysis who would have won under your plan and

by how much, and at least through 2016. And the interesting answer to that, Sarah, is your plan really helps Republicans, at least over the last 20 years, and not to change the outcome of any election, except 2012. And 2012 would have come out for Mitt Romney.

Maybe that's why in my heart I loved it all along. That's right, that's right. It's your campaign that would have turned around. Yeah, exactly. No, I thought some of that analysis was really interesting, but the role of gerrymandering, that's why I think if you combine my plan and your plan, now we're cooking with diesel

because you've got many more districts. There's quite a few more districts. The gerrymandering task is much less easily manipulable. And then you combine it with your proportionate representation. Now we're onto something. All right. We also got some pushback on my history of the electoral college being tied to slavery. Maybe I was too quick to explain my point on this. It was the three-fifths compromise is what allowed the Constitution to be created in the first place.

The Southern states wouldn't have joined without the three-fifths compromise because so much of their population was enslaved. Their voting population would not have given them the representation in Congress. So that was already baked in to their congressional representation that they got a lot more than their voting age population. Sorry, they got a lot more

than their eligible voter population. So it is true that when you get to the debates on the electoral college itself, yeah, of course, it's the smaller states that want that plus up, you know, the plus two for their Senate representation. There were other proposals about maybe Congress just picking the president, et cetera. So I do want to clarify the debate over the electoral college portion was not over slavery. But my point is, without the three-fifths compromise that

had already been baked into representation in Congress, no, they weren't agreeing to the electoral college. And the popular vote wouldn't have worked either. So I did want to read what one very well-informed listener had sent in. There was no need to create the Electoral College to get the southern slave states more power. That was already included in the Congressional Appointment Plan. A fair critique of this, the Electoral College was acceptable to the southern slave states because it incorporated the Three-Fifths Clause and thus retained the power of the south slave

states in the appointment process. This may have been the view expressed by John Dickinson. It was primarily, though, Northern and anti-slavery delegates who proposed, supported, and defended using electors, while it was Southern slave states delegates who opposed electors, instead favoring congressional appointment. The first version of the electoral college

adopted in July had only three no votes, Georgia, North Carolina, and South Carolina. The final version had only two no votes, North Carolina North Carolina, and South Carolina. The final version had only two no votes, North Carolina and South Carolina, which is the opposite of what you'd expect at the electoral college where some sort of pro-slavery ploy or a sweetheart deal for the South. I think that's exactly right. My point was his parenthetical that like, it's a non-starter if you don't already have the three-fifths compromise baked into it. So yeah, I don't like that about the Electoral College.

But yes, it helps the small states. That's who also needed it. It gets to my larger point, which is whatever the problems and the disproportionality of the Electoral College, it's what allowed the ratification of the Constitution, as well as the three-fifths compromise and a whole bunch of other compromises that were made to make small states, big states, southern states, slave states. Everyone had to agree to give up a lot of

their sovereignty to sign on to this Constitution. Remember, of course, two states actually didn't sign on until after the nine states required had ratified it already, so they were going to get left out in the dark. So the question is, are you willing to make compromises to have the United States exist? I think I am. You can never play history the other way of like, all the states end up going off on their own. Then maybe the Northern states form one sort of union and the Southern states form a NATO-esque alliance

like the Articles of Confederation. Maybe then Britain does come back, the War of 1812, a version of it still happens, but this time Britain wins and now it takes over the Southern NATO-esque confederation. I mean, who knows? Maybe, you know, you don't have a civil war, but if Britain now has those states, maybe slavery is banned earlier,

but maybe they don't win, and maybe slavery isn't banned until much later. Again, play this out all you want, but. Or we just live in the largest country in the world called Canada. And, but the, you know, I do think in, in discussing the electoral college, here's another question, Sarah. Does the Electoral College happen if it is the way we do it now?

In other words, the proposition in the Constitutional Convention is they say, well, we don't want a popular vote for president. And you say, well, what about a popular vote for electors for president? I don't think they would have gone for that at that point because the purpose of the electoral college at that point was a firewall against democratic rule. It was, and so. But it was the more democratic option than just having Congress pick the president, which was one of the other plans on the table. But yeah, I mean, it was a choice between the like, far removed, you know, you can pick your members of Congress

and your members of Congress pick the president, sort of like how senators were getting picked. You vote for your state legislator and your state legislator votes on who your senator is going to be. The electors was the more populist option of two very unpopulist options. I mean, let's put it this way,

we are light years in the current system. Right now in the current system, we are light years from what you would call original public meaning. It's just so far removed from it. And so- Well, not the meaning. The meaning is still what they said. That is what they meant.

No, the original public meaning was, they meant for this to be a deliberative body. That's not what original public meaning means. Meaning is about the text, what the text means. We haven't violated the constitution. Original public intent is what you're talking about. Yeah, well, this is one of those where, no, what did it mean when they created,

so under, there is a technical, I think you're right, there is a technical matter, there is're right. There is a technical matter. There is an electoral college that meets and cast votes. Yeah, that is true. And it's absolutely true that the intent was them for them to meet and deliberate. That's absolutely true. So was the meaning of this different

from the intent of this? By the way, David, you'll be pleased to know I did go to vote yesterday, I early voted, against my own preference. And the ballot was not, like where you draw in the little circle for your Scantron, did not say Donald Trump or Kamala Harris. It said Democratic Party electors

and Republican Party electors. And then it listed their names underneath it, which I hadn't seen before and honestly I found a bit confusing. Yeah, that is a little bit confusing. Like it's in all caps and bold for Democratic Party electors and then under it indented and not in all caps

and in multiple languages basically are the candidates names. Does it say Democratic electors for president at least? Yes. Yeah. Okay. Okay. Yeah, I believe so. Okay. Yeah, that is. It's a Democratic Party or something. It was weird actually. It was weird. Huh. That's fascinating.

Democratic Party was first. That's why I keep using that one. And then Republican Party was second on my ballot. So it took me a second. I was like, wait, what? Because when I used to vote in Texas, there was a party line voting where you could just circle one at the top and you could vote all Republican or all Democrat.

And that's what I initially thought it was. But it was not. All right, next question, David. This is a long one. I was thinking about the filibuster. On the show, you often talk about how, by eliminating the filibuster for most judicial appointments, read,

and by eliminating it for SCOTUS too, McConnell, the Senate changed the incentives for ambitious judges. They no longer have to worry about getting bipartisan support. The strategy is to create a paper trail that one political party will like, and then cruise through the confirmation process on a party line vote. You've talked about how this change may result in judges who are more partisan or extreme

and less likely to seek consensus. But then I was thinking about Robert Bork. He was nominated to SCOTUS and criticized as an extremist by Kennedy and other Democrats. The Senate declined to confirm him with 52 Democrats and six Republicans voting against him. Never mind the filibuster, he didn't even get a majority. Some conservatives view the sinking of Bork as a disgrace, an ideological mugging, the attack that launched the current war over SCOTUS.

But it seems contradictory to lament both the end of the judicial filibuster and the treatment of Bork. The whole argument for a filibuster was the judicial nominees ought to be able to comment, sorry, command at least some bipartisan support. Either we think it's good for the minority party to be able to reject an allegedly extreme judge, or we don't, right? Obviously, the parties will generally disagree

about who is and isn't extreme. So which is it? Were Democrats wrong to rally a movement to block Bork, or was the Senate wrong to eliminate the filibuster? It can't be both, can it? To which I say, yes, we can. David, can you be both upset at Bork and upset about the end of the filibuster,

considering that Bork was blocked by a majority? Yeah. It didn't come down to the filibuster at all. Yeah, I can be in favor of the filibuster and still believe that a majority should not have treated Robert Bork that way. Absolutely. So I think I see those as two separate questions.

Question number one is, what is the threshold for voting someone into the Supreme Court? And question number two is, how should we evaluate people when we are deciding whether to vote them into the Supreme Court or not, regardless of the voting threshold? So the argument about a BORC would be, regardless of the voting threshold, in particular the Ted Kennedy attack on BORC was way, way hyperbolic, way over the line, regardless of the voting threshold necessary. So that's the argument about Bork is that no matter the number of votes he needed, he was just mistreated.

I think my take is also that each one caused our current system for different reasons, as he notes. But Bork was the first nominee that was blocked for ideological reasons. That was different than Abe Fortas, who was maybe blocked for being a Jew, maybe blocked for some shadiness on the side. And previous nominees had been blocked for being too close to the president, things like that, of the very, very few who had ever been blocked. But Bork was blocked because he was seen as too conservative. I actually, you know, if you want to block a nominee for being too conservative now, so be it, I guess. What happened though with Bork is that that then became the new test.

Are you too conservative? Are you too liberal? If we're doing this on ideological grounds, it opened the door to do it on ideological grounds. So it politicized the confirmation process in a way that previously it was just a question of qualifications with, again, some bigotry along the way. Not saying that was great. But once you politicized the process with Bork, you couldn't put that toothpaste back in the tube. Then with that newly politicized process, you needed the filibuster because you wanted that sort of bipartisan consensus. When you got rid of that, you now have the politicization of the judiciary plus no bipartisan consensus, and that's your recipe. So they're two different ingredients to me to making the sort of nasty cocktail we have now.

Well, let me just read, this is one of the reasons why people, why the Bork nomination sticks in the craw of so many. It's one thing to sort of say, I think so and so is too conservative. I think so, I disagree with somebody's legal philosophy. It is another thing to say, Robert Bork's America is a land in which women would be forced into back alley abortions. Blacks would sit at segregated lunch counters. Rogue police could break down

citizens' doors in midnight raids. School children could not be taught about evolution. Writers and artists would be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of individual rights that are the heart of our democracy." Wow. Wow. That was the concern here. It was not, oh, Robert Bork's too conservative and I disagree with originalism. It was, he will bring hell on earth. It was that incredible hyperbolic attack on him that was the heart of the anger at his treatment. That is what we're talking about when we talk about Borking. Borking was not, I disagree with your legal philosophy, esteemed judge. I respect you, but your legal philosophy

is not appropriate for the court. It is, you will send us back to the dark ages. That was the, that is what borking was. It was not just a disagreement over judicial philosophy. Not that our political rhetoric has gotten much better. The put y'all back in chains certainly had echoes of Ted Kennedy. Don't forget, of course, Joe Biden was the chairman of the Judiciary Committee at that point and running for president.

It's easy to forget this, but he was leading in fundraising at that point. Before then, of course, he had to drop out a little bit later. But this was sort of a perfect mix as Democrats had just taken over the Senate of Joe Biden's political ambitions and Ted Kennedy, who now of course is no longer going to be president, but wants to now solidify a new role for himself as the conscience of the Senate, the elder statesman, etc. He wants to find relevance as well. So there's a lot of politics going on that has nothing to do with Robert Bork or the judiciary or Supreme Court nominations at all. What a mess.

What a mess. Okay, next question. What if someone who met the eligibility criteria to be in Congress was elected speaker, and then some cataclysmic event happened and they ended up as president via succession without being eligible? The most plausible one would be a speaker who was a citizen but not born in the US, and a piece of falling space debris killed POTUS and V POTUS at an outdoor event. I'm not sure that's the most plausible scenario, but sure.

You could also simply have a speaker, David, who's 27 years old. You only have to be 25 to be in Congress, we have to be 35 to be president. So let's pick an easy one. There's a 27 year old speaker, fine, a 34 year old speaker, that's maybe more realistic. And POTUS and V POTUS, yeah,

the space debris kills them at an outdoor event. Can the speaker now be president by virtue of the line of succession, even though they're not constitutionally eligible to be president? I say no, you just skip over to the next, because the speaker is next in line of succession, but they still have to meet the qualifications for the presidency, which have to meet the qualifications for the presidency, which are not dependent on succession rules. They're absolute minimum requirements. So I would think you would then skip over to the next eligible person in the line of succession, which president pro tem of the Senate is usually not a young whippersnapper. By definition, really.

The line of succession is statutory, and so the Constitution trumps. So even if David's wrong that like, it's sort of assumed that you would just skip over, supremacy of the laws, right? So you would look and say, ah, the statute says that this person becomes president. And then we'd look to the Constitution and say,

but that would be unconstitutional, and therefore we just go to the next person. I don't think, David, that you would say that the entire Line of Succession Act is unconstitutional. I think it would just be a pretty easy skip. Here's an interesting trivia question, which I did not know the answer to until I just Googled this instant.

Uh-oh. Who's the president pro tem of the Senate? Whose number? Currently? Currently. Grassley? Nope, nope, he's Republican. It's a Democratic Senate. Oh, right.

Who's the oldest Senator? It was Dianne Feinstein, right? Don't know. It's Patty Murray. Patty Murray, congrats Patty Murray. Patty Murray is president pro-Tim. She is, what would you call that? Second in line for the presidency?

What do you mean? So- No, third. Wait, okay, so first, okay, yes, yes. So VP first. Okay, yeah, I was doing my, third in line, yes. All right, by the way, there's interesting lines of succession within each department as well.

So at the Department of Justice, for instance, there's lines of succession that each attorney general actually designates if they're incapacitated or unable to execute some part of the office. It's actually it's like a thing that you have to do when you become attorney general in those first few hours is designate your line of succession. Fun, all right. Next up, David, I really liked this one.

I'm only being a pedant because it's actually more fun to pronounce properly. Derived from Greek, so not octopodes, but octopodes. No. Yep. Octopodes. It's like how Hercules isn't pronounced Hercules, but Hercules. Those last two chunks of letters don't get the English pronunciation rule of the E making the preceding vowel long, but are both pronounced as their own syllables. Octopodes! Even more fun to say than octopi and more appropriate.

I love that. Octopodes. That actually has a really cool ring to it. The second I read it, I was like, oh, that's clearly right. The only problem with octopodes is that nobody knows what you're talking about because it doesn't sound enough like octopus. So if I'm like just out of nowhere, like we're at the aquarium or something

and I'm like, let's go look at the octopodes. I think everyone's gonna look at me and not even know from the context of being at an aquarium that I mean, I really wanna see an octopus. Yeah, I love that email. I love how, I can't remember the last time we had a topic that we discussed on advisory opinions No matter how obscure That we didn't have a listener who had subject matter expertise in that area. It's fantastic

I think my favorite was when we talked about a Supreme Court case dealing with like lost or stolen lost property And state how states deal with lost property. Oh yeah. And one of our listeners- The achievement, achievement law. Yes, yeah. And one of our listeners ran that entire program for what, the state of Colorado, Colorado,

however we wanna pronounce it. And that was fascinating. Thank you for joining us for another episode of Advisory Opinions. And don't forget, if you want to see me and Judge Ho live and in person, go to thedispatch.com slash summit, and you can sign up to join us on November 12th at the National Press Club in downtown Washington, DC.

And David, I'll see you next week!