Advisory Opinions - The Purge

Episode Date: October 31, 2024

Today’s all about election law. That’s it. Get ready. Pennsylvania, Virginia, Nevada, Michigan, and Mississippi. The Agenda: —We can’t fix stupid, but we can give it a court date —Submit your best lawyer jokes —Subpoena-colada! —Apostrophe-gate —Did the Pennsylvania Supreme Court get it wrong? —Virginia purging voter rolls —RFK Jr. on Michigan ballot —Nevada Supreme Court and postmarks —History of absentee ballots —The Washington Post fiasco —January 6 cases Show Notes: —Supreme Court on purging voter rolls —Caperton v. Massey —Jeff Bezos’ letter 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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Visit wealthsimple.com slash possibilities. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgar. That's David French. David, we've got some election law work to do today, as well as I thought we would do that January 6th case that I mentioned from the D.C. Circuit. And if we have some extra time, I want to do the Second Circuit,

Second Amendment follow-on case to Bruin that was sent back down after Rahimi. So a true Rahimi case coming out of the Second Circuit that was 246 pages long, David. Oh, gosh. Come on, Second Circuit. Let's get it together. Actually, Sarah, I feel like we can talk about it based on one sentence or two sentences. Yeah, I know. Yeah.

But before we get started, David, I was over at the US Chamber of Commerce Litigation Center and I got a mug and I'm so tickled pink by this mug, I had to read it to you. It says, we can't fix stupid, but we can give it a court date. I like that. And it just occurred to me that here

in the final home stretch before a massive US election, perhaps we should encourage people in the comment section. And if you're a member of the dispatch, you can comment anytime you like on an episode of the podcast to put in their best lawyer jokes, because I think we could use some humor here. And I will accept all form of lower lawyer jokes. I like just, you know, stories that are funny and quirky. I also like knock knock jokes. I love puns. You know, what is a lawyer order on the beach? A subpoena colada. So I have a better one.

What's brown and black and looks good on a lawyer? Oh no. Doberman Pinscher. I have another one. A lawyer gets into a car accident. He's injured. When he comes to in the hospital, he says, what happened? And the doctor says, you totaled your car and he yells out, my BMW, my BMW.

And then the doctor says, well, that's not all. You lost your arm. And then the lawyer yells out, my Rolex, my Rolex. I actually had heard that one and I think it's really funny. This is not a joke, but I found it funny anyway. Perhaps some of you are already aware of this, but John Jay was our first Chief Justice and he got into a bit of controversy with the Jay Treaty. This was to try to stop impressing our sailors from the British. It's going to put off at least the War of 1812 for another 30 years or so. Anyway, they really, really did not like John Jay through all of this. It just shows you,

by the way, that people can get worked up and partisan about things that history will be like, really? The Jay Treaty actually probably was a pretty good thing. But in the moment, people were real mad. So one angry insomniac in Boston chalked an emphatic message on the fence and closing the estate of Robert Treat Payne, a distinguished federalist drudge and declaration signer. This description, by the way, is coming from Akilah Mars, the words that made us. Here's what the chalking was, and it's long. Damn John Jay. Damn everyone that won't damn John Jay. Damn everyone that won't put lights in his windows and sit up all night damning John Jay. So lawyers have inspired strong feelings from the beginning really, David?

Well at least, Sarah, that's strong feelings over something consequential like an international treaty avoiding war as opposed to who is garbage exactly? Is it the island of Puerto Rico or is it Trump supporters or some subset thereof? You know, that's the really important stuff for... Yeah, apostrophe gate. Apostrophe gate made me happy. And for those of you who don't know about apostrophe gate, God bless you, you are in a happier place.

Turn off this podcast now. But the question from the Biden video is whether he said the only garbage out there are Trump supporters. There's a long pause and then he talks about something else. He's like, his, his blah, blah, blah. It goes on. In the White House transcript, it said Trump's supporter, apostrophe S. So like he was going to finish his sentence by saying Trump's supporters comments about

Puerto Rico, for instance. But I have to say, David, when you watch the video, I heard no apostrophe. I'll say that. Well, as a general matter, apostrophes are silent. However, I will say that if you watch the video, the apostrophe was generous, shall we say. And I think it's very, you know who else probably understood immediately that the apostrophe was not going to clear this up? It was Joe Biden because he immediately goes back on and tweets, not exactly a mea culpa, but like all I meant to say was tweet. Also David, you say Joe Biden tweeted that. Someone tweeted it.

Oh, well, did you not see him grab his phone shortly? All right. The Joe Biden account tweeted it. Yeah. This is a legal podcast and we have plenty of election law stuff to cover. We've got legal cases from Pennsylvania, Virginia, Nevada, Michigan, and Mississippi, and we're going to have to tick through all of them. First up, we've got an appeal from the Pennsylvania Supreme Court. This was a 4-3 decision by the Pennsylvania Supreme Court. This is now a request for the U.S. Supreme Court to intervene. Okay, so Pennsylvania law, I'm going to read from this petition to the Supreme Court for

a stay application. A provisional ballot shall not be counted if the elector's mail ballot is timely received by a county board of elections. But, for three, the Pennsylvania Supreme Court majority held that election officials must count a provisional ballot cast by an individual whose mail ballot was timely received but could not be counted because it violated a mandatory rule such as lacking a signature, the date, or the secrecy envelope. This from the state application,

this holding effectively creates a cure process for mail ballot errors, a process everyone agrees the General Assembly has deliberately chosen not to create. All right, so David, to explain this, you've got provisional ballots and mail-in ballots. So provisional ballots are, you know, if you showed up at the wrong polling place, for instance, they're not going to let you vote, but they'll let you fill out a ballot and

then they'll put it in the provisional pile, basically. And if you can come back later and prove that you were at the right polling place or that you didn't vote at the wrong polling place, things like that, there's all sorts of ways to cure a provisional ballot so that it's then counted. This argument is over whether to count a provisional ballot if the mail ballot is received but is not going to be counted. Again, 4-3, the Pennsylvania Supreme Court said, yes, count the provisional ballot.

If the mail ballot can't be counted, that's when the provisional ballot comes in. mail ballot can't be counted, that's when the provisional ballot comes in. But again, the election code says a provisional ballot shall not be counted if the elector's mail ballot is timely received by a county board of elections. It doesn't say counted by a county board of elections. That's the question, David. What do you think? Okay. So I think two things at the same time. One is, I think the Supreme Court got, the Pennsylvania Supreme Court got this wrong because we look at this.

So for example, in Pennsylvania law, if you show up and you don't have your ID, you can count, you can cast a provisional ballot and it can be counted later even though you did not have your ID. So there's a cure possibility of the provisional ballot when you show up in person, but there's nothing like that replicated in Pennsylvania statutes for mail-in ballots. So to me, that 4-3 Pennsylvania decision is incorrect if I'm sitting on the Pennsylvania Supreme Court. However, after Mor v. Harper, the question isn't, is the Pennsylvania Supreme Court correct? The question is essentially, is it so incorrect that it is an absolute raging dumpster fire of incorrectness that can be seen from space? I don't think that's the exact quote from Morvey Harper,

but it's the substance of the thing. And so it is, that's, it's very interesting, Sarah. You can tell when you read the cert petition that they know they've got a problem here because of Morvey Harper saying hands off of the state Supreme Court decisions unless it's horribly bad. So what they have been doing through it, what they do throughout the cert petition is say things again and again, like the clear and unmistakable language, the absolutely crystal clear. And so they're obviously trying to sort of put this into the category of dumpster fire

seen from space bad that would allow the Supreme Court to intervene. And I just don't think it gets there. Because again, remember the Morvey-Harper decision is not that state Supreme Courts get to do anything whatsoever that they want to do to interpret state law without intervention from the Supreme Court. But it is, they get pretty close to be able to do. They have a broad range of discretion to issue state rulings interpreting state legal provisions

in light of state constitutions, et cetera. And so where I am, Sarah, is in this really unsatisfying space that says the Pennsylvania Supreme Court got it wrong, but in light of Morphe Harper, this does not rise to the level of the kind of extraordinary violation of voting regulation or extraordinarily extreme interpretation of voting regulations and rules that would allow or permit for Supreme Court involvement? I 100% agree with you, which upsets me greatly, that I think the Pennsylvania Supreme Court got this wrong. There's a reason it's 4-3.

I would have been with the 3 in dissent, and the Supreme Court is not granting this. So bye. Right. Yeah. All right. Okay. Next case. Next case. We're going to solve this. Yeah. Yeah. All right. Okay. Next case. Next case. Case. We're going to solve this. Virginia. So I'll read from this application for a stay

of the Fourth Circuit's stay of the district courts. So anyway, it stays all the way down. In short, we talked about this before about the National Voter Registration Act and not systematically being able to remove or, you know, purge voter rolls within 90 days of an election. But that, in fact, Virginia matching new registrants, for instance, to see if they're eligible to vote, seemed to us to be okay. This had been a law that had been in effect since 2006 in Virginia, was passed under a Democratic governor. The Department of Justice had pre-cleared it under Section 5 of the Voting Rights Act, though the NVRA is a different statute, of course. The Fourth Circuit, since we talked about it, gnaw-dogged it hard and said, no, you must return 1600 people who had self identified

as non citizens at the DMV or in another way, you must return them to the voter rolls. So here is the application for stay by, you know, full disclosure, Chuck Cooper did this and I worked at Cooper Kirk back in the day. And also I mentioned that because I can hear him in my voice. I mean my head as I read this. It's a weird feeling. So anyway, the district court entered a burdensome mandatory injunction on the eve of an election. The injunction is based on a misinterpretation of the National Voter Registration Act, which does not prohibit Virginia from removing non-citizens from its voter rolls. Plaintiffs will not suffer any irreparable injury absent the injunction.

Virginia's process removed non-citizens who are ineligible to vote. To the extent any individuals misidentified themselves as non-citizens to the Department of Motor Vehicles and then failed to attest to their citizenship upon the registrar's request, any such individual can still vote by using Virginia's same-day registration process and attesting to their citizenship, including on Election Day. Both plaintiffs unduly delayed bringing suit, Virginia's law creating its non-citizen role removal process has been in place since 2006, and plaintiffs waited until 60 days into the 90-day quiet period, less than a month before the election, before bringing suit.

The mandatory injunction will also impose significant cost confusion and hardship upon Virginia, creating a massive influx of work for its registrars in the critical weeks before the election and likely confusing non-citizens into believing that they are eligible to vote. So David, I was going to turn this one over to you except moments before we started the podcast. Moments. The Supreme Court actually issued an order granting the stay. It was 6-3 as far as we know.

Sotomayor Kagan and Justice Jackson noted their dissent. They would have denied the application. But not hard because we were going to tape this podcast, we were already on when this order came through. I was going to say, I think the Supreme Court actually does take this one and grant the stay because of the Purcell rule. You had the District Court and the Fourth Circuit jumping in here, which is funny because there's the 90-day quiet period of the National Voter Registration Act and roughly, you know, the Purcell period, which 60 days, 90 days,

whatever you want to call it, kind of in conflict, right? If you do something within the 90 days, you're supposed to be able to be stopped from doing that. But also, the federal court isn't supposed to stop you from doing it. I get the tension there. But nevertheless, I thought this was a persuasive case as we talked about it before. They're same day registration. So even if you don't get the letter from the registrar saying, hey, we're going to remove you in 14 days if you don't provide proof of citizenship because you checked a box on your license application that said you're not a citizen, maybe you did it accidentally. Or as they showed in at least one case, yes, when the person got their license, they weren't a citizen.

Now they are, since they got their license. So, but let's say you didn't get that letter. When you show up to vote and they're like, oh, hey, sorry, you can't vote. You're not on our voter rolls. Then you just say, great, I'd like to register to vote. Like where's the, where's the Like where's the irreparable harm? Yeah, yeah. No, Sarah, two things.

First, we should not in any way apologize for commenting on this right after the Supreme Court is ruled because we are acknowledged as the two-person review board of the Supreme Court. That's right. So, I think we enthusiastically grant our blessing to the Supreme Court ruling, because here is a rule, as you said, it has passed preclearance. And for those who forget what preclearance was, this was a process set in place where the DOJ reviewed election rules in states and jurisdictions that had historic problems with protecting voting rights. And so this was a heightened level of scrutiny that was applied to voting rules in these

states. And so if this voting rule, these rules had already passed, a heightened level of scrutiny had been in place for a very long time. And then there's just the sort of the basic sort of equities of the case, you know, bad facts make bad love like it you know these people had self attested that they're probably not citizens and some idea that they're belong on the voter rolls when they've already said yeah you know. Not a u.s. citizen what are we doing here so. I mean, what are we doing here? So to me, it just seems to plainly correct. This is also, by the way, unlike Pennsylvania,

where you have the litigants in the Pennsylvania case are asking the Supreme Court to intervene in a matter of state law. This is federal law all the way up and down. This is a federal case up and down, that this is a federal case up and down, and dealing with National Voter Registration Act, and this is clearly... It just strikes me this one was a layup, and it's such a layup, it's kind of surprising to be talking about it because advisory opinions doesn't talk about too many layup cases, to

be honest. It does seem like plainly the correct result to me. It seems so plainly correct that I've got these warnings synapses firing. So listener, if you think we're wrong that this isn't the layup we think it is, you can come from behind like LeBron and try to block us. I think this is obviously right. Next up, let's go to Michigan. So this is the RFK being on the Michigan ballot issue that was percolating through the Sixth Circuit. Let me read you the facts as related by Judge Thapar.

And fun thing here, we're going to have dissents from Judge Thapar, Judge Radler, and Judge McKeague, all friends of the pod from the Sixth Circuit. So I think you already know how we might come out on this one. But maybe not. We'll see. Okay. So RFK Jr. ran for president as the natural law party's candidate in Michigan, but in August, he withdrew from the presidential race, so he sought to have his name removed from Michigan's

ballot. He made his request August 23rd, before the September 6th deadline for the Secretary of States delivered the list of presidential candidates to the county clerk, but the Secretary denied his request. So, he went to the Michigan Court of Appeals. The court issued a writ of mandamus ordering the secretary to remove Kennedy's name from the ballot. But then the Michigan Supreme Court found that mandamus relief wasn't available. Like, we're not going to get into the legal process stuff here. But basically the Michigan Supreme Court was like mandimos was the wrong way to do this. But the Michigan Supreme Court did not order his name back

on the ballot or anything or talk about the merits whatsoever. But the Secretary of State put Kennedy's name back on September 9th anyway. So by putting it back on, that was like a choice, and putting it on after the September 6th deadline, probably violated Michigan law, that was three days after the statutory deadline. So he then went to the Sixth Circuit and said, you know, please take my name off. It's really interesting. So I'll read again from the pars, descent from denial of rehearing on bonk, descental.

I know some of you hate that term, but that's what it is. This case presents a question of exceptional importance. Does forcing a person onto the ballot compel his speech in violation of the First Amendment? The repercussions of that question are enormous. If a candidate can't stop his name from appearing on the ballot, could battleground states put President Joe Biden back on their ballots? Could states put anyone they wanted on their ballots in violation of their own election laws? So obviously, the Sixth Circuit did not take this en banc. They went up, RFK went up to the US Supreme Court on Tuesday of this week. The US Supreme Court denied the application, as in RFK's name will stay on the ballot in

Michigan. Justice Gorsuch dissenting. Respectfully, I dissent for substantially the reasons given by Judge the Parr, Radler, and McKeek. So yeah, I say I'm going to take the dissent-telers. Descent-telers? Descent-telers? Descent-telers. I'm going to take the... Descent-telites. The descent-telites. I like that. Yeah. I'm going to take the descent-telites side here as a matter of the Sixth Circuit because as the par laid

it out, she put his name back on in violation of Michigan law. This is all very weird. However, I'm not sure I'm going to disagree with the Supreme Court's decision not to grant the stay. This is an issue of Michigan law. It was decided by the Michigan Supreme Court. I don't see an overwhelming federal interest or that the Michigan Supreme Court. I don't see an overwhelming federal interest or that the Michigan Supreme Court, for instance, got this so, so wrong. So David, this comes out to me, the same as the Pennsylvania case that we talked about,

where you just don't have the more V. Harper need for intervention from the Supreme Court. Yeah. Because remember federal, and the difference by the way between this and Virginia, in Virginia, it was a federal court that intervened in the first place. Here in Pennsylvania and in Michigan, it's a state court issue. And the question is whether the federal court should intervene.

I think that answer is going to be no. I have the very, you know, you were very unhappy to agree with me earlier. I'm very unhappy to agree with you now. Damn it. I know, I know. What can we do about this? Maybe when we get to this January 6th case, I don't know. But I think again, you're plainly correct.

And if you're a listener who is saying, wait, wait, twice you guys have said a state Supreme Court or a state decision is just wrong, and you're also saying it's wrong for the Supreme Court to correct it. Guys, this is our federal system. It really is our federal system. Frequently state Supreme Courts interpret state law in ways that I think are weird, nonsensical, strange.

And that's that because they're the final arbiter of state law. And you might say, well, Wade, what about that little more V. Harper dumpster fire from space loophole you talked about? Well, I would interpret that. I'd be very curious, Sarah, as to what would rise to the level of the federal courts, the Supreme Court intervening. And I honestly don't think we have an answer to that. It almost seems as if it's like the old standard of obscenity. You'll know it

when you see it, but it's got to be really, really, really bad. And I think that's where we are. But the bottom line is for the time being, it's effectively a bar. Morvey-Harper is for all practical purposes a bar, and they left a little tiny loophole just because they don't want to say that a state Supreme Court can do anything it ever wants to let them know that Big Brother is still out there somewhere, hovering in the shadows and the wings so that you don't get sort of completely high on your own supply. But as of now, it's effectively

a bar to rethinking a state Supreme Court's interpretation of the state's laws. You know what it actually reminds me of, David, in terms of legal doctrine, a little bit of Caperton v. Massey, the 2009 case about whether the West Virginia Supreme Court justice needed to recuse himself and whether that rose to a due process violation of the 14th Amendment. It's got to be extreme facts, as they said in Caperton v. Massey, creating a probability of bias in that case. And I almost wonder if that would be a similar standard. That it's not just that they got it wrong.

It has to be extreme facts showing sort of a wanton disregard for the law in order to favor maybe a specific outcome or some other bias issue when it came to the election, for instance. Yeah. All right. Next up, this one is not in federal court yet. This is the Nevada Supreme Court. Okay, I'm going to read you from Nevada law first. If a mail ballot is received by mail,

not later than 5pm on the third day following the election and the date of the postmark cannot be determined, the mail ballot shall be deemed to have been postmarked on or before the date of the election." So the question here is it when the date of the postmark cannot be determined, i.e. there is a postmark and you just can't read the date, you know, maybe it's illegible or it's smudged, or is it that the date cannot be determined because it's not there, because there is no postmark? So which is it? The Nevada Supreme Court in this case said that no postmark was okay. So if the ballot is received by the third day following the election and does not have a postmark, Nevada will be counting it in this election, David. Whoa. Okay, so I have a question about this. So

I'm with you on whoa. I'm with you on whoa. But at the same time, I'm kind of stopped. It comes in the mail. So it's received. Yes. Okay. And there's not a postmark at all. Correct. So here's the problem. It's not up to that.

This is where I am a little bit sympathetic from an equity standpoint. Yeah, yeah, yeah. The voter doesn't get to postmark their ballot. Right. That's what I, that's what office has to. And sometimes, not not often but it does happen. They simply don't do it. They just forget and it still gets delivered. It's just like that's you know you've got five steps to do when you get this piece of mail and that one step

doesn't get done even though the other four do and so it just goes on to where it's going without the postmark. So basically like do you punish the voter for that? No, I don't wanna punish the voter for that. But at the same time, I'd feel really differently if it was received on or by election day and didn't have a postmark, no problem. But being received three days later without a postmark makes me feel a little squeamish. And this is gonna be one of these cases where I think the Nevada Supreme Court. Did I say that?

Nevada? You did not. Is it Nevada? Yeah. Do I have to change my entire like framing of my mouth that I've been for 55 years? Okay. So the Nevada, that doesn't sound right. That's very similar to when I say try to say pen instead of pen.

Like we're talking about the Ivy League school. Yeah. Okay. instead of pin, like we're talking about the Ivy League school. But yeah, okay, again, this is one of those situations that it feels like the state Supreme Court just got this wrong because although I am sympathetic with the voter who says, wait, I did everything I was supposed to do. I went by election day, I put it in the mailbox by election day. I did everything I'm supposed to do. It's not on me that the post office didn't postmark it. Now, again, guys, we're talking about something super rare here. Like this is super rare, but it's not on me. However, that lack of a postmark does raise and the combination of three days. So I don't know, Sarah, how the it's been a while since I've been mailing a lot of stuff, to

be honest. But that three days does make me worry because I have the typical thing is when I mail something locally, it gets there the next day. And so, if it's three days, not always, but typically. So, what this does is it creates a situation in which somebody could drop something in the mail after election day. Say they drop it in the mail on the 6th instead of the 5th, and it arrives on the 7th, and it would be counted. And I think it's reasonable for the Nevada legislature to say there's enough of a risk of a problem there that we're just in this vanishingly rare case, we're just going to have to say sorry. We know there might be some inequity here, but there's also the slight possibility of

fraud or just mistake. But again, this will be one of those things that Morvey Harper's US Supreme Court is going to be hands off on it. Interestingly, by the way, this was five of the seven justices signed on to this order from the Nevada Supreme Court, although one of them was simply on an irreparable harm showing, but also believed that you, like the postmark issue, went the other way. So it's, you know, five to two on the remedy, but only four to three on the actual underlying merits of that statutory interpretation question. All right, now we're going to do the exact same question.

Well, not actually, but a similar question coming out of Mississippi. Okay, this was now at the Fifth Circuit. It made a lot of news in the moment. But I just want to start out by noting this decision is actually not going to be effective in the 2024 election. This is a decision about Mississippi law post 2024 election. The actual Fifth Circuit opinion says it's up to the district court to decide whether it's effective.

We're not doing remedy here, but it's not going to be. Okay. So during the COVID-19 pandemic, Mississippi amended its election laws to accept absentee ballots, quote, postmarked on or before the date of the election and received by the registrar no more than five business days after the election. So this is what's going to be different than Nevada. These are all postmarked.

And it shows that they were put in the mail before the election or on election day, but they're not received until up to five days after the election. So we don't have a postmark problem here. The only problem here is going to be that they don't get received until after the election. David, this is a pretty short opinion, and I actually think it would be fun for people to read, especially if you're going to disagree with the outcome here, because it is a pure

text history and tradition opinion if I ever saw one. It's written by Judge Oldham. It's joined by Judges Duncan and Ho. And by the way, if you'd like to hear from Judge Ho, I will be having a conversation with him at the post-election dispatch event on November 12th in Washington, D.C. So sign up for that. So first of all, David, I did not know the history of absentee balloting, but it includes this wonderful history from the Civil War is when absentee balloting started because before that you'd actually have to, you know, show up in person,

which makes some sense. But in the Civil War, of course, it all of a sudden becomes clear to people that like, wait, these guys who are actually fighting out there for the preservation of the Union don't get to vote about who they think should lead the Union. And then they could vote in the field. Election officials brought ballot boxes to the battlefield where soldiers could cast their ballots. In such cases, the voter's connection with his vote ended when he put it in the box,

precisely as it would have ended if he had put it into the box at home. The other way was by proxy. Allowed soldiers to prepare ballots in the field and send them to a proxy for deposit in the ballot box of the soldier's home precinct. When proxy voting occurred, the voter's connection with his ballot did not end until it was cast into the ballot box at the home precinct, and therefore the soldier really did vote not in the field, but in his precinct at home.

The voter voted when the vote was received by election officials that had to happen by election day. So from that text history and tradition on the history part of absentee ballots, they're saying you had to vote by election day. On text, they go through federal law describing election day, you know, as the singular day, the second Tuesday in November, first Tuesday in November, sorry. And then tradition, they walk through the post-Civil War history and then how we got to the current moment of accepting ballots that were received after Election Day. In January 2020, only 14 states and the District of Columbia accepted ballots postmarked by Election Day, with the 36 others requiring receipt on or before Election Day.

As of November 2022, post-pandemic, it was then 18 states and the District of Columbia permitting post-Election Day receipt. So if you're ever looking for an outline of how to do a text history and tradition opinion, this is your one. But let me read you what I thought was the the money part, David. This is not to say that all the ballots must be counted on election day. Even if the ballots have not been counted, the result is fixed when all the ballots are received and the proverbial ballot box is closed. The selections are done and final. By contrast, while election officials are still receiving ballots, the election is ongoing.

The result is not yet fixed because live ballots are still being received. Although a single voter has made his final selection upon marking his ballot, the entire polity must do so for the overall election to conclude. So the election concludes when the final ballots are received and the electorate,

not the individual selector, has chosen. In other words, so long as the state continued to receive ballots, the election was ongoing and had not been consummated. Thus, the election is consummated when the last ballot is received and the ballot box is closed. Of course, it can take additional time to tabulate the election, citing Bush v. Gore by the the way, has become a routine practice for election officials to count or recount ballots after Election Day. The election is nonetheless consummated because officials know that there are X ballots to count and they know there are X ballots to count because the proverbial ballot box is closed. In short, counting ballots

is one of the various post-election administrative actions that can and do occur after election day. Receipt of the last ballot, by contrast, constitutes consummation of the election and it must occur on election day. You found that persuasive? I did! Yep, I did. The headlines did not persuade me and then when I read the opinion and those two paragraphs I was like, oh my gosh, you're right. I mean, I read it and I thought I thought of the Big Lebowski.

It's like, yeah, that's like your opinion, dude. What? All right, David, go for it. Wait a minute. OK, if I'm a voter, I'm casting my ballot, right? I'm casting a vote when I have indicated my choice and it leaves my custody and it's in the hands of government officials, right? He seems to be saying, no, no, no, it's only cast when it leaves my hands and it's in the hands then of very specific government officials, the ones that I will define not in the statute, not in the statute, but by what? By reference to what I think is the proper government official to receive it. And then the text history and tradition analysis on voting rights. This

gets into, do we want to do the text history and tradition again? Be super careful about text history and tradition when it comes to voting. When it comes to voting. I mean, you know, text history and tradition in the US is, you know, secret ballot, relatively new, right? The ability of all of us to vote, relatively new. The ability of us to vote without being subjective to punitive taxes or tests relatively new. But the whole thing I read, I thought, well, that's a reasonable legislative judgment coming from that opinion.

It did not strike me as anything in the statute implies that after that, that it is my requirement as a voter to make sure that I cast and the proper election officials receive, again, not in my power or authority as a voter, by the way, that I cast and the proper election officials receive. And who are the proper election officials? Not defined, not defined. But if you think about casting in-person votes, the counting of those votes occurs in lots of different places, lots of different times, and those votes are then received by lots of different election officials before they're actually counted, as we learned during all the 2020 stuff. Sometimes ballots are brought to a particular place by a precinct into a central counting area, area okay that sounds a lot like what i did is i cast my vote and then there's a mail delivery process to get the.

The in person cast to the actual person counting so now is the rule that if i cast my vote to the place where they're actually counting it because that's where they're closing the ballot box. It struck me as just a pure policy determination by the judge. Like there's nothing in the text history and tradition that indicates, now, when I say pure policy judgment, it's not unreasonable. I mean, not like I listen to it and I don't think, man, you know, what a monstrous thing to think. I think very fascinating extra statutory comments there.

And so that's my beef with it. It's not that that statement is unreasonable standing alone in much the same way like I think of some other cases that I disagree with, that it's not unreasonable standing alone, but to me there's nothing about the statute that compels that outcome. And so that's my beef with the case. So look at that listeners, we finally, after winding our way through, we disagree. It's a relief. Okay. So I thought everything you said was total crap, except the one thing that I did find very persuasive is that the voter has given their ballot to a government official as laid out by the state statute and that the courts don't get to determine

which government official has the ballot for the purpose of closing the ballot box. David, I'm conceding to you that I find that pretty persuasive. The rest of it. Circle the calendar. No, just stop right there. Let's go to January 6 case. We're running out of time. I don't like, for instance, your thing about like, well, they might move the ballots

somewhere else to start counting them or they might start counting them the next day. Yeah, but the point is you've got the ballots. There's no more ballots coming in. That's why I don't find that persuasive. Yeah, but the point is you've got the ballots. There's no more ballots coming in. That's why I don't find that persuasive. I hear you on, for instance, looking at the history of voting. I do. But here, you know, we're talking about how absentee voting started and what its purpose

was. I actually think that the I just found that part interesting, not that it was. Yeah, that's very interesting. Absolutely that part interesting, not that it was very interesting. Absolutely. Super interesting. Not at all relevant. I don't find it particularly relevant, unless the opposite would have been relevant. For instance, that if you were fighting in the Civil War, your ballot could come in late from the battlefield that I would find very relevant. But the reverse I don't find relevant. It's sort of actually judge a previous point about the second amendment, text history and tradition.

Like what if they just didn't legislate to their fullest power? So sometimes when you see the lack of a history affirming, it doesn't actually provide evidence of the negative, if that makes sense. Anyway- This is text history and tradition as the engine of judicial, this is living originalism.

Well, what I was going to say is that the tradition aspect, you know, post-ratification, if you will, of absentee voting in the Civil War, really is a coin flip, right? Roughly half the states allow the receipt of ballots after election day and half the states don't. I've always found that to be a weird thing to like pick a poll of the states.

And, you know, unless it's 49 to one, you know, 10 states is usually enough for me to say like, well, this is relatively common. Other places have come down on the same idea that this makes for an efficient ballot process. So as I said, this is not going to be in practice for this election. Most, most, most likely that has not been fully decided yet. If I'm wrong about that, we will absolutely update you. So this will run through the normal, maybe it goes on bonk to the fifth circuit. It certainly will have a cert petition

up to the Supreme Court. David, it's interesting because I am persuaded by the panel opinion and believe that the Supreme Court will agree with you. Yeah, I suspect that it will. I suspect that it will. But like you said, this will be something that will be handled in the regular course of business. This is not going to be something that's going to

impact this election coming in a few days. So everyone can chill out about it. And it will be a fun thing to talk about as it winds its way through the system. And we'll be able to talk about it free from the looming thought of, oh, no, does this outcome mean that Kamala Harris or Donald Trump is going to be president of the United States? So I think that this is going to ultimately be a demonstration, I hope, knock on wood, of how we should resolve these election disputes way in advance of the election so that everyone knows. Yes.

Yeah. Sort of like deciding not to do editorials way in advance of an election. If you're going to change your editorial policy, might I suggest you do it in December of this year? I think that would be a good time. Can we just put a pause on that because I'm so glad you brought that up? Let's just do a little digression. Okay.

Just super short. Someone asked me a friend who's very, very critical and of the media and really despises the media and was super happy to see the Washington Post make this decision, went in and sent me the Bezos letter and said, do you have a problem with this letter? And I said, in many ways, I found it really compelling and interesting and thoughtful.

And if it was written six months ago, or a year ago, or right after 2020. But then when you write it, after the Harris endorsement has been pinned, and after there was a Blue Origin Donald Trump meeting, and you kill the endorsement, and then you say, trust me, I'm a principled man. Um, I mean, literally the part of the letter where he gets to, okay, I acknowledged that my CEO of blue origin met with Donald Trump and that was total coincidence. That's like nine geese flying overhead at the time. I mean, that's total coincidence.

At some point you're just like, okay, even if it is a total coincidence, even if it is, guy, do you not know the concept of appearance of impropriety, and then you are then asking us to just trust you? Just trust me, guys. This is, there was nothing improper going on. That's a big, heavy lift. That's a big, heavy lift.

That's a big, heavy lift in my view. Well, what's sort of funny is the whole thing is about how the reason for not doing the editorial is because newspapers and media have lost trust. So like, you know you don't have the trust and now you're saying, trust me. That being said, David, cause I'm a sucker, I guess,

I found it totally plausible that there was sort of bureaucratic institutional dropping of the ball in terms of announcing the editorial policy. I absolutely believe it had nothing to do with the Blue Origin meeting, all of that. I just find it an egregious bureaucratic snafu when the whole point is to regain trust, then you weren't going to regain trust this way. No. Like you have to do it not just by not having editorials, but by explaining the process in and at a time that also restores trust.

It's the process and the thing. The merits and the process both have to be trustworthy. I mean, it's not that different from law, David. Thank you, Sarah. That was beautifully stated. It's not just outcome that builds trust. And in fact, outcome is often antithetical to building trust unless the process has been deemed to be transparent

and fair and unbiased. And so I think it's entirely legitimate for a newspaper to say, hey, wait a minute, weighing on balance, a lot of people don't understand the difference between use and opinion. They don't understand. It makes no difference. Nobody changes their vote in a presidential election because of an endorsement. Now, I will say in primaries potentially or in down ballot races, I think it can absolutely make a huge difference. So I'm not poo-pooing all endorsements.

But presidential endorsements, give me a break. They only undermine trust in the reporters at the institution completely unfairly. Well, I don't see anything wrong with newspapers endorsing in their editorial opinion voices. I don't see anything wrong with newspapers endorsing in their editorial opinion voices. I don't see anything wrong with it. I also completely am fine with a newspaper saying, we're not going to do this. I think it is a prudential judgment call that institutions can make.

At the same time, I also think if you're going to make the call, this sounds again right back to our legal discussions. Do it in advance, transparently, in a way that's explanatory. And then also, gives you plenty of time as a subscriber, as a reader to read, absorb, agree, disagree, react accordingly, etc. But yeah, this was, this would be, hey, this should be like a journalism school class project and how not to build trust in the quest to build trust. That's true. All right, let's go to a January 6th case. Interestingly, there were two January 6th cases out of the 11th

Circuit that I thought our friends over at the Short Circuit newsletter just write up little one paragraph descriptions of a bunch of Circuit cases. And I thought their description on these were pretty funny. Defendant, the criminal case against me for trying to overturn the 2020 election results should be removed to federal court because I used to be a federal official. 11th Circuit. Used to be doesn't cut it. So back to state court you go.

Concurrence. Also, overturning election results wasn't exactly in your federal job description, buddy. That was the Jeff Clark one. 11th Circuit again. And that goes double for people who only used to be nominated as presidential electors. Concurrence again. Also, you guys weren't even real electors in the first place. You were pretend electors and you can't pretend your way into federal court. Okay, so that was fun relating to some of those Georgia indictments.

Okay, so moving over to the DC Circuit, David, this is an interesting one. You're gonna have Judge McFadden, who's a Trump appointee, conservative guy at the district court. Then you're gonna go up to the DC Circuit Court where Judge Katzis is going to be the lone dissenter, obviously, because it's a three-judge panel,

and he's going to disagree. Judge Katz is also a Trump appointee, very conservative judge, so I like the conservative on conservative disagreement here. The panel, obviously the two judges on the panel are going to uphold McFadden. So here we go. 18 USC 1752 A1 prohibits knowingly entering or remaining in any restricted building or grounds without lawful authority to do so. Restricted building or grounds refers to a limited number of posted cordoned off or otherwise restricted areas

that A, sorry, A of the White House or its grounds or the vice president's official residence or its grounds, B, of a building or grounds where the president or other person protected by the Secret Service is or will be temporarily visiting, or C, of a building or grounds so restricted in conjunction with an event designated as a special event of national significance.

So, on January 6th, the vice president was in the Capitol. And the question is about that mens rea, what the person had to know. So again, knowingly entering or remaining in any restricted building or grounds without lawful authority to do so. Did you need to just know that the area was restricted? Or did you need to know the reason for the restriction, that part B, as in you knowingly entered a restricted building or grounds without lawful authority to do so, or you knowingly entered a restricted building knowing that the building or grounds were

where the president or other person protected by the Secret Service is or will be temporarily visiting? All right. So, quoting here, the parties dispute the extent of knowledge a defendant must have about the restricted building or grounds to be properly convicted under Section 1752. They agree the defendant must know that the area satisfies the first element

of the statutory definition. He must know that the area was posted, cordoned off, or otherwise restricted. According to Griffin, the defendant also must know that the restricted area satisfies the second element of the definition. Here, inoned off, or otherwise restricted. According to Griffin, the defendant also must know that the restricted area satisfies the second element of the definition. Here, in other words, Griffin had to know

that the restricted area was one where the vice president who was protected by the Secret Service was or would be temporarily visiting. So if you have to know it's restricted, and restricted is defined as posted, cordoned off, or otherwise restricted, building or grounds where the president or other person protected by the Secret Service is or temporarily be visiting. What does the knowingly apply to? McFadden and the majority of the DC Circuit panel said, nope, you just have to know

that it was otherwise restricted. Judge Katz is in dissent saying, no, you got to know all of it. It's knowingly cordoned off and knowingly that the president or another protectee is there, which would kind of have a little bit of bonkers outcomes, David, that you have to tell them that there's a Secret Service Protectee in there, as potentially that person is already trespassing to go do something they're not supposed to do. Yeah, I found this really, I'm glad you used the bonkers thing. I was thinking that I was going to use bonkers adjacent. But here's the here's a funny part of this case to me.

Griffin raises two arguments on appeal. He first asserts that because waves of rioters ahead of him trampled by the fencing since i'm still living in the relevant areas perimeter it was no longer posted in cordon offer otherwise restricted which is. Hey an amusing argument that if i'm in the tail end of the writing invading army that is engaged in active combat with the cordon, you know, with the restricted area, that I don't have the mens rea anymore. It was just a... I'm pretty sympathetic to that. It proved at trial, right? Like the whole point is you have to prove knowingly.

If you can really show me that you, like there was no signage and it didn't occur to you that this was maybe restricted, I'm willing, like as a juror, I'm very open to that argument. And the fact like it's not, it's that there were no signs, there was no fence anymore. How was I supposed to know where things were were blocked off? Like where exactly does the restriction begin? Yeah, I don't know where exactly this guy went. It's in the opinion. I just don't remember at this point. He's actually one of the less, you

know, obvious cases in a lot of cases. He's the only convicted right on this one count because they couldn't really show anything else. So on the knowingly thing, he may well win on that actually. I mean, he was convicted, but. Yeah, yeah, okay, right. So the jury heard it and was like, nah, dog.

Yeah, I'm not saying don't make the argument to the jury. I mean, you can make that argument, but I just thought that was an amusing line. But I'm with you, Sarah. I think there's, if you take the argument that you have to post, don't enter, and then post the reason why you should not enter. And yell at people, don't go past me,

the vice president's in there. I mean, to me that you're actually elevating risk for the protectee. You're broadcasting high value target in the region, high value target. And so I don't see that requirement of knowing who the target is. And let me give you the reverse, because the reverse is also a bit of a problem. You know, there's something cordoned off and it just says like, don't go here. But you have no

reason to know that the vice president happens to be breaking a tie breaking vote in the Senate that day and happens to be in the building, right? So it's not January 6. It's just a random day. And you know, the Capitol is always gonna say like, I don't know, restricted area. But if you entered the restricted area on a day the vice president wasn't there, you would not have violated 1752, right? It's a normal day in Congress

and the sign says restricted area. You can't be tried under this statute. But if the vice president is there, just happens to be there as president of the Senate breaking a tie, then you can be convicted under this and there's no way for you possibly to know whether the vice president's there, whether there's any Secret Service protecting there. That actually is a problem. But I don't know how you fix it because otherwise you have to put up a sign that says high value target inside. You don't have to say vice president, but you would have to say the president or another

person protected by the Secret Service is or will be temporarily visiting. I don't see how that's going to work, but I also do have a problem with prosecuting someone who had no possible way of knowing that the vice president or someone else could be in the building because most of the time they're not. Let's take it out of the Capitol, for instance. Just make it a random museum. And it says restricted outside and you're like, okay, but I go to this museum every day.

It's a Smithsonian, it's just open. So you walk in, oh no, it turns out there's a secret service protectee and now you're being convicted under 1752. You must see some problem with that mens rea requirement, right? If I am transgressing on a place that is posted, do not transgress. You're just open to being, you might only be convicted for trespass,

or you might be convicted for 18 USC 1752. I'm kind of of the view that if it's posted do not trespass then I when I'm walking up to a sign that says do not trespass I'm not necessarily for that to be an enforceable penalizable act I don't have to always know exactly why it's posted and the degree of penalty attached to the trespass but I will say this I the posting to me is so key. You got to have the posting and why is the posting so key? So I started when I was initially reading this, it took me back to an interesting moment in my first presidential encounter

of my life, Sarah. I'm driving into downtown Nashville. I'm working as a first-year lawyer, pull into my parking garage and I get out and I kind of come out the parking garage the way I always did through a very small back alley in Nashville. So I walk out the parking garage into the back alley onto one of the main streets in Nashville. And it was weird. It was like the zombie apocalypse that occurred. Nobody was on the street. It was rush hour and there was not a soul. There was not a car.

There was not a person. And it was deeply confusing to me. So I stood there on the street corner and a black car goes by in a motorcade. And six feet from me, I look and there's Bill Clinton, President Clinton, and I'm standing there looking and we make eye contact and I was like, am I hallucinating or was I just the only person standing on the street when the President of the United States passed? That is in fact what happened and what had happened is they had not cordoned off the alley.

Everything had been cordoned off all around. But for some reason, somebody had dropped the ball and there's this little alley that had not been cordoned off. And so I didn't transgress across any line. The Secret Service or whoever was sort of cordoning off of that area just didn't either know the geography enough or somebody dropped the ball. And there was no way, nothing there for me to indicate that I shouldn't cross this line. And there I am, six feet from the President of the United States. It was a very, very, very bizarre moment. the knowledge that I am not supposed to be here,

absolutely, absolutely critical. But the posting of the reason why I'm not supposed to be there, I think on balance when you're talking about the security risk, the security concern, et cetera, I'm siding with the majority on this one. I doubt the Supreme Court weighs in on this one, but we'll see.

Last up, David, I just thought we'd spend a couple seconds on that Second Circuit case. So remember, Bruin had the May issue, and you have to be like a good person or whatever. The Supreme Court strikes that down and says, no, you have to have objective criteria that someone can meet. You don't have to show that you're a special person who specifically needs protection, for instance, that that's not what the right to keep and bear arms means.

Then you have Rahimi, which upholds 922G8. I forget which one now, 388. Anyway, so here comes New York. They pass a new statute. And this time, to get a concealed carry license, you must attend an in-person meeting with licensing officials and disclose to the officer the one, names and contact information of the applicant's current spouse, domestic partner, any other adults in the house, including adult children, whether they're minors residing. Two, names and contact information of four character references who can attest the applicant's good moral character. Three, a list of all former and current social media accounts from the preceding three years.

And four, such other information as the licensing officer may require that is reasonably necessary and related to the review of the licensing application. There was also the certain buildings and areas could be gun free, et cetera. So David, in a 246 page opinion, the Second Circuit, I thought very interestingly, found that the list of former and current social media accounts from the preceding three years, under the text history and tradition standard, no, absolutely not. They were like, Publius would have to have said that they were Publius in order to get a concealed carry permit?

No. No. No. What do you think? But that I agree with that. That I mean, like to me, that's it's just about one of the easiest First Amendment, you know, one of the easiest First Amendment conclusions you can draw. So that I'm 100% in agreement. Number two, 246 page opinion. We cannot maintain our high standards of the advisory opinions and imply that I have studied all 246 pages before this podcast. But I will say this part

really stood out to me as soon as I started reading. So this is in the summary of the case, the summary of the decision. So it talks about the procedural history. And then it says on June 21, 2024, the Supreme Court decided US versus Rahimi, upholding the constitutionality of 18 USC, section 922 G8. In the wake of Rahimi, the Supreme Court granted certiorari, summarily vacated our judgment in the case and remanded the case to this court for further consideration in light of Rahimi, as it did with all other Second Amendment cases then pending before it. This is the key language. Having reconsidered the prior decision in light of Rahimi and the party's supplemental

briefing regarding the effect of that decision on our reasoning in this case, we now issue a revised opinion. And I was like, ooh, okay, Rahimi is making an impact. Next sentence, we reached the same conclusions that we reached in our prior consolidated opinion. Now, the reason that made me chuckle is not because remanding in light of Rahimi would compel a different outcome in this case.

It's just that Rahimi, as vague as it was and sort of as intermediate scrutiny-ish as its text history and tradition test had become, I thought, well, of course you entered into the same conclusion that you had before because Rahimi actually gave you lots of discretion. And this is sort of an example of that. But on the First Amendment point, Rahimi might grant you lots of discretion, but you know what the First Amendment does not do? It does not grant you lots of discretion. And that I've got to disclose all of my anonymous social media speak? No, no, no, no, no, no, no way. So to exercise one constitutional right, the state gets to violate another constitutional right?

No, that's not how this works. All right. With that, our next episode will come out on election day. Election days, actually, if you're a campaign operative, by the way, are often the most boring day of the entire election. You have got some people out there trying to do some final get out the vote efforts. The candidates probably somewhere, for instance, shaking hands or something outside of a polling place.

The lawyers, however, are pretty busy that day. They're manning hotlines, trying to triage any problems happening. A machine went down and now the lines are getting longer. Do we need to keep that polling place open? Do we have the application for an injunction to keep the polling place open? Who's going to file it? Who's got privileges in that courtroom? Who's the judge?

All of that. So to all of you campaign operatives out there, enjoy a little nap that day. You won't nap, I know. And to the lawyers, good luck, get busy. You know, the one thing I would say is it's really hard to prepare in advance to address the legal issues that will arise out of this,

because a lot of the legal issues that will arise out of this because a lot of the legal arguments from prior to 20 a lot of the legal arguments that were used in 2020 just won't work again in 2024 it's just not those avenues have been closed off so it will be interesting to see and now this is assuming the election is as close as the polling indicates, who the heck knows. But we will see new and creative legal theories. My favorite thing about this, David, is that with the realignment of voters, it's sort of what we talked about with administrative law, that it seems often that the judges and justices are sort of stuck in the previous binary of who thinks what about administrative

law and presidential power. Similar here, it seems to me that a lot of lawyers are stuck in a pre-realignment legal strategy where they think that their voters will be helped by X, Y, or Z when in fact, a lot of these voters have shifted. And so be careful on which thing you think is gonna help your team. And even when there isn't a realignment going on, remember Bush v. Gore,

just because you think it's helping your team, you may be making the opposite argument that would hurt your team, you never know. So you should be making the arguments from first principles, which is of course what we try to do here at advisory opinions. Don't try to game out how it's going to help your team or hurt your team. You just don't know. All right. Happy Election Day, everyone. Go vote. You