OA5: Bush v. Gore and the 2000 Election, Part 4

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello, and welcome to Opening Arguments. This is episode 5, and this is the final part of Bush v. Gore. Now, if you didn't like the fact that we had to break this up into four parts, feel free to go to patreon.com/law and pledge today. There's a goal that we're pretty close to where we'll do an hour per episode rather than a half hour, and that will allow us to get further in the story each week. But in the meantime, let's get to the final of Bush V. Gore! So where did we leave off, Andrew?

0:01:48 Andrew: So now you're Al Gore's campaign manager again. You had a nice hiatus, but You're stuck here in Florida. What do you, you think you can do now that the Secretary of State has said you've lost by 537 votes and you know that your major county, Miami-Dade County, did not certify any extra votes for you because they couldn't get the whole recount done in time?

0:01:53 Thomas: Oh, okay.

0:02:14 Thomas: I don't know. I mean, I just don't have the background knowledge for that. I would assume, are we going to, are we going to go to the Supreme Court? Let's take this thing all the way as high as it goes.

0:02:21 Andrew: Well, we are going to try, but interestingly enough, your first remedy is not to the Supreme Court. It's not to a federal court. It is to a state court. It is, in fact, to Leon County, in which your complaint will be heard immediately after the state trial court hears a case about a traffic accident. So I'm not making this up. And the reason is, it goes all the way to the Constitution, which says Article 2, Section 1, that states can decide how to allocate electors for the presidency. And in fact, that Article 2 Section 1 does not have a requirement that that even be allocated on a democratic process. And so you might remember, we talked about numbering of amendments, but the 17th amendment that was passed in 1913 was the first time that states, that we went from senators being selected by state legislatures. And this was a mixed format. Some states did have elections, but there was no federal requirement that the U.S. Senate be elected.

0:02:34 Thomas: Okay? Yeah.

0:03:32 Andrew: And many states just had their state legislatures would vote amongst themselves and send somebody to the Senate. Senate. And the same thing is true now. A state could say our state Senate is going to determine how our electoral votes are allocated. It is why when you look at maps, Maine and Nebraska allocate their electoral votes proportionately. And you will see Donald Trump is trying to win one electoral vote in one congressional district in Maine.

And Hillary Clinton is trying to win one electoral vote in, I think it's the second district of Nebraska, outside of Omaha, which is, you know, more liberal than the rest of Nebraska. But no other states have that proportional allocation. And the reason is because the Constitution says the states can pick electors really however they want. And we have had, yes, all but two have said, now we're going to have elections and whoever wins the state, it's going to be winner take all. But they could change. And in fact, numerous states have considered over the years, I think Colorado fairly recently considered a bill that would allocate their electoral votes proportionately, which would strongly favor Republicans states were to allocate their election votes proportionally.

0:04:19 Thomas: And only two have decided to do it that way. Hmm.

0:04:44 Thomas: Interesting.

0:04:44 Andrew: And that's because of congressional districts are, again, you have sort of the geographical dispersion. You tend to have 80% Democratic congressional districts in major cities, right? And then more, the remainder of the districts throughout the state could be Republican plus five, Republican plus seven, and you have a Democrat plus 40 in the inner city. So you would get, even if the population is 50-50 between Democrats and Republicans, because of how the voters are allocated, because of where they reside, and because of of how the districts are drawn, you could have four congressional districts and have three of them go Republican and one go Democrat because there are huge margins in the inner city and not elsewhere in the suburbs.

0:05:36 Andrew: And so there have been some federal legislation, the Voting Rights Act, which was essentially gutted a couple of years ago by a Supreme Court decision. There was the 15th Amendment, which gave newly freed slaves the right to vote. But by and large, states can do what they want in tabulating votes on a presidential election. So you have no remedy. That was the whole point of this discussion was, you might think, right, this is the presidency in the balance. I'm Al Gore. I have 267 electoral votes. Surely I can go to the Supreme Court. And the the answer is no. Not only can you not go to the Supreme Court, you can't go to federal court at all. You've got to go to Leon County in front of county a judge. And I appear in plenty of

0:06:14 Thomas: Yeah.

0:06:25 Thomas: Does Gore have to represent himself? He has to stand there.

0:06:28 Andrew: Fortunately, yeah, no, fortunately, he had an ex-professor of mine named Lawrence Tribe, as well as David Boyce, who's one of the greatest trial lawyers in the the world. So he had a pretty good legal team him. But like I said, I think they made some tactical errors, which we're going to talk about. But he had awfully smart people representing him. He's in a local county court, and that Leon County trial court said that they They were going to just defer to the certification that was made by the election board, right? And we talked a little bit about administrative hearings, but basically they said, look, we're not recounting everything. We're not experts in that. There's been a board. They've certified the results, and unless you can prove that those results are wrong, we're going to go with what they've done.

0:07:21 Andrew: So here's what the lower court said. They said, "Plaintiff Gore must show that, but for the irregularity or inaccuracy claimed, the result of the election would have been different and he would have ben the winner. It is not enough to show that a reasonable possibility that results could have been altered by irregularities, such as the undervoting, or inaccuracies but rather a reasonable probability that the results of the election would have been changed must be shown." Okay, so the trial court says, don't, I don't deal in speculation, right? This is, it's not enough to say there are tens of thousands of undervotes and when we started counting them, uh, they came in overwhelmingly in my favor, and it's rat

0:08:03 Thomas: Well, then what would what would work then? They would have had to do an entire recount and that's the only way they would have been able to.

0:08:04 Andrew: Yeah. Yeah. Yeah, that's exactly the argument that Al Gore made in his appeal to the Florida Supreme Court, right? Because now, and ordinarily you would go to an intermediate appellate court, but every state allows for, in Maryland, we call it bypass certiorari. Every state allows you to expedite certain critical cases up to the state Supreme Court. So this is, and shockingly enough, This case is one where the state Supreme Court said, yeah, we're going to take the, you know, that Leon County. We're not going to let the traffic stop guy come up here, but we're gonna, we're gonna let maybe the next, you know, whoever's going to be the next president of the United States come up to us, you know, the next day. But mind you, we are in December right now. Okay, this is, is the first week of December, and so Al Gore appeals to the Florida Supreme Court. They are briefing these cases and turning them around, you know, literally within a day. It is, you know, because time is of maximum essence. The Florida Supreme Court rules in Gore's favor, essentially. It overturns the district court finding. It says, there

0:08:40 Thomas: Yeah, OK. Really? Wow. Oh,

0:09:16 Andrew: Is no reason to defer to the canvassing board opinion as an administrative body because of precisely the catch-22 that you've identified. It says the law that is controlling is the one that I had read to you earlier, which was that no vote shall be disregarded, so it is a mandatory provision, if there's clear indication of the intent and that there hasn't been an effort made to do that. And so what the Florida Supreme Court does is it says it remands back down to lower court and it gives instructions to County to its recount. Count, and it orders the state election board to count the Miami-Dade votes that have already been recounted, and certain votes that came in from Palm Beach County. It's not important to go through the history.

So this is a Gore win. This is December 8th, and the state has now said said, Gore gets 168 votes from Miami-Dade County. It orders them to complete the recount, and it says you also get these votes from Palm Beach County. So now, so Al Gore is elected president. Now, as you might remember, there's one more recourse, and that is if you have a state court decision, even if it's interpreting state law, if it touches on constitutional issues, you can appeal that state Supreme Court decision up to the Supreme Court. And the Supreme court says, yeah, and the Supreme courtroom is a certiorari court, which means they can choose which cases they want to take or not. And shockingly, they decide that they want take this case.

So it is December 8th. Miami-Dade County is recounting its ballots. And Supreme Court says, we want to take a look at this case. And that the arguments that are being made by both sides, Bush's argument is that the legal vote must be in accordance with the instructions on the ballot.

0:10:34 Thomas: So Gore is elected president.

0:11:28 Andrew: And, that in any event, it is timely, right, that we've got deadlines coming up. And so, they are seeking an injunction. And they say, Supreme Court, we want you to issue an injunction and tell the Florida Supreme Court and the election board that they can't do what they're doing. We want you to stop the recount. So now the positions are reversed, right? Now Al Gore has won the recount, if this happens, it is almost certain that Al Gore will be declared the winner in Florida and and declared president. And Bush has to stop. Bush is on the defensive. He's got to stop the weekend. So what's working in George W. Bush's favor is that there are five conservative justices on the Supreme Court.

0:11:34 Thomas: OK. Yeah yeah. I was thinking that from before.

0:12:17 Andrew: And what you have in the Bush versus Gore opinion, which anybody can download. It's 531 U.S. 98. You can get it off of Google Scholar. It is a per curiam opinion. And a per curiam opinion is an unsigned opinion. They are supposed to be short. They're supposed to not have dissents. So you are not supposed to be able to figure out who authored them. And typically, the reason a court, a federal court will issue a per curiam opinion is because uh it is on a ministerial subject upon which it does not want uh future you know it doesn't want you to cite this case for anything

0:12:57 Thomas: Oh, you talked about this on Atheistically Speaking, right? Yeah, this is how he got into that, I think.

0:12:58 Andrew: Yeah exactly right um And the Bush v. Gore opinion, true to its name uh it has uh and true to to its its per curiam status um has been cited a bunch of times by other courts, but has not been discussed and has only been cited in one Supreme Court opinion, and that was in a dissent by Clarence Thomas. So it is not, in other words, if you want to find a Supreme Court case that virtually nobody thinks means anything other than and adjudicating the result in its case, you have Bush v. Gore.

0:13:03 Thomas: Okay. Yeah.

0:13:41 Andrew: And what happened in Bush v Gore is per the curiam, which turned out to be a 5-4 majority, you're not supposed to be able to figure these out, but given that four justices wrote dissents and cross-signed on to each other's dissents, you can kind of figure it out. The per Curiam opinion said they issued the injunction. And this was December 12th. And they gave three reasons for issuing the injunction. Okay. The first was 3 U.S.C. 5. And that we, I'd mentioned that earlier, that is the federal law that said state's electors were first scheduled to meet on December 12. It is called the Safe Harbor provision, and basically is sort of the first date, it says that it's presumptively valid if a state's electors get together to cast their vote, to report back to Congress uh by a certain date, and it's it's mentioned as like, you know, the the second Tuesday after the election in December, whatever, on this it turns out to be December 12th, and

0:13:52 Thomas: Yeah. Pretty easy deductive work.

0:14:45 Thomas: Okay.

0:14:45 Andrew: That's when That's when Bush v. Gore comes down, so their first argument, the first basis for decision, uh, by the majority is it would violate 3 U.S.C. 5, because today is December 12th, and any relief that we would craft would involve a recount going past today, and they wouldn't be able to meet the Safe Harbor deadline. Their second argument, or their second basis for decision, was that the evidence demonstrated that different counties were conducting their recounts differently, Okay. And that there were differing standards. So in one county, let's say Miami-Dade, they would look at a dimpled chad and count it as a vote for whoever the dimple was cast. But in another county, they will require at least some, know, evidence of penetration, right, at least sub. I was trying to find a way to word that, but I can't in any other way. And

0:14:46 Thomas: Right. Yeah, yeah. Unfortunately.

0:15:40 Andrew: I wonder what, you know, David Boies did in Oral Argument, because that would definitely keep me up late at night before trying to find a way to mention, you know, right, perforation of the orifice. Yeah, you can't do it. But anyway, some counties said yes to the dimples. Some counties said no to the Dimples. And the majority said you can't have recounts in different counties where some standards work this way, where it would be recounted in one but not in another. And then their third basis was that the Gore team did not seek a recount of the overvotes. So you were really only giving relief to, you know, some of them anyway, and without counting the over votes, we're not getting a true total. So let me take a pause and ask, how did those three reasons strike you as a basis for ordering an injunction and telling the state to stop the recount?

0:15:46 Thomas: Trying to say it that's not going to be funny. Yeah.

0:16:35 Thomas: Well, man, I don't know. No, it's such a specific thing. I don't know how you would apply these principles in this one case when I have no other examples to work with. But I mean, the state thing, so explain that deadline. So that was the deadline that the state has to have their votes in by was December 12th? They have to be done?

0:16:59 Andrew: Well, again, and I'm not trying to trip you up when I, when I ask you to come in and and do that, I'm sort of trying to calibrate, because sometimes arguments that seem good to lawyers, you know, don't seem good, uh, when, you know, to to non-lawyers and vice versa. Uh, but but yet again, I think you've seized on kind of the key issue here, which is, um, I did not say, and neither did the Supreme Court, that 3 U.S.C. 5 requires a state to submit its electors on December 12th, because the law doesn't say that, okay?

0:17:02 Thomas: Uh-huh. Yeah, I know. Right. Ah, really? Really?

0:17:33 Andrew: What the majority did was construe, no, no. The law says that there's a safe harbor provision, and if the state has a process for selecting electors and reporting results in place by December 12, then its electors will be considered presumptively valid, okay. That's a a little bit different. And that legalese is important. And in fact, the same law, remember this law starts, it's the third article of the U.S. Code. It starts at Section 1. Section 5 is the safe harbor provision. Section 7 says it's mandatory meeting of every elector in every state by December 18th. So that's six days away.

0:18:10 Thomas: Yeah.

0:18:11 Andrew: Go on. Section 12 says by December 27th that if Congress does not receive the electoral votes from a state, they can, they shall request that the Secretary of State of that state send a certified electoral vote return immediately, right?

0:18:28 Thomas: Well, there you go. I mean, that seems pretty clear to me anyway, with my limited knowledge of what you're telling me here. That doesn't sound like the December 12th was a deadline that the state had to have everything figured out. It seems a little, to quote our intro, the defense's case is wrong.

0:18:47 Andrew: And, and let me add, and this may not matter to you, but I think we'll be persuasive if we have have any lawyers listening, no court has ever held that 3 U.S.C. 5 conveys any kind of deadline, establishes a deadline, or conveys a right, or is the basis for suing anything. And in fact, the only case to cite 3 U.S.C. 5 prior to Bush v. Gore, now courts have looked at it, but the only place to do so before Bush v Gore was a district court decision in 1976 in New York that was challenging the electoral vote results in the state of New York. And that court came to the opposite result. And basically that was the Ford versus Jimmy Carter.

0:19:35 Andrew: And Jimmy Carter won 297 to 241 electoral votes. If New York had flipped, right, because New York was, you know, yeah, 40, let's see, 256. So 297 minus 256 is 41 electoral votes. If New York had flipped, it would have swung the election to Ford. And they argued that, and Carter won New York by about 4.5 points, 52 to 47.5, 300,000 votes out of 6.5 million, uh, but Ford backers Oh Yeah Yeah Five Five points Yeah, four and a half, five points, but they argued that there were all these, you know, there was massive voter fraud in New York, and, you know, I'm not one to pass on whether there is, uh, but but the court looked at Three USC5 and said, you know, even if, and they declined, obviously, because we had President Carter and we did not have, uh, Gerald Ford re-elected in 1976, you know how that one came out, um.

The court said, you know what, uh, we are not, and mind you this, it was different from Bush v. Gore, because it was not an uncertainty, right? Carter was president, uh, and what they were trying to do, was get the remedy they wanted was a new election in New York.

0:19:43 Thomas: It's a pretty big state.

0:19:56 Thomas: Wow. Yeah.

0:20:08 Thomas: So far more comfortable than than this one. Yeah.

0:20:50 Thomas: Wow.

0:20:50 Andrew: Right, and this was still in the time period in between, I mean, Carter had been declared president, I shouldn't say he was president, he was declared, declared president, the court was looking at it in that interregnum period. But it was not like the Bush v. Gore, where there was no, you know, sort of public or official, you know, declaration. And they considered seriously the possibility of whether they should order a new election in New York. And one of the things they looked at was, if we ordered a new election, could we do so in a time that would allow the electoral votes to get in?

And that's where they cite 3 U.S.C. 5. They say, no, it wouldn't be presumptively valid because we've missed the safe harbor deadline. And then the court said, but you know what? Like it would be better to miss the safe Harbor. If they're right, it would be better than this, the safe Harvard deadline. And then, and then the question would be, um, what would count as, uh, the electoral votes among electors appointed by their States. Uh, and so, and, and the reason that that comes up is if you take away the 41 electoral votes, then you have Carter with 256 from New York. You have Carter at 256 and Ford with 241, right? And neither of those are 270,

0:21:04 Thomas: Yeah, wow.

0:21:21 Thomas: Got it.

0:22:02 Thomas: 270.

0:22:03 Andrew: Right. Neither of those were a majority of total electoral votes. But if the New York electors are not considered appointed by their states because they missed the deadline, does Carter or become president with 256 electoral votes, or does it go through the process whereby no candidate wins a majority, which is the super confusing process in the House of Representatives.

0:22:03 Thomas: Yeah. But

0:22:27 Andrew: Didn't

0:22:26 Thomas: That's interesting because So it's so it's like you're deciding, well, do those electoral votes for New York just not count And therefore the Majority would be a different number, rather than 270.

0:22:32 Andrew: Right, right. Or do they count as if they had voted for a third party candidate, for example, right? Do they count as part of the denominator? And the state court didn't haveto reach that result. So they didn't. They were just like, well, here's kind of a neat hypothetical, sort of like what we do here. But the important part is, no court had ever said 3 U.S.C. 5 meant what Bush v. Gore said it meant. And then as for the other arguments, I mean, I think fact that you didn't find them very persuasive is illustrative. I didn't find them persuasive when I read them. The unequal standards in different counties counties can be resolved sort of in two ways. Number one, you could do what Justice Breyer suggested in dissent, which is to say, hey, look, we're the Supreme Court. We can just say every county in Florida has to use the same standard, right?

0:22:38 Thomas: Right, right. Yeah I don't even get how that's an argument against anything. I mean if they're doing if they're doing a recount, what, I mean, how is an argument against a recount is saying, oh, they're doing it differently. Like how does that, I don't even understand how that functions as an argument.

0:23:23 Andrew: Right, right.

0:23:37 Andrew: Well, to be fair, if you wanted to, because remember that the original Florida Supreme Court order was for Miami-Dade County to continue their recount, So they've already done 2,000 of the 11,000 undervotes. So if you impose a new standard, right, they have to start over rather than just picking up that ballot number 2001. Make sense?

0:23:51 Thomas: Okay. Right.

0:24:05 Thomas: I guess, but how long did that take? I don't know. Is it 2000?

0:24:07 Andrew: Well, that took a while. And so and remember all of these.

0:24:12 Thomas: I feel like I could do that in a day.

0:24:14 Andrew: Well, remember, you not only do you have to look at it, but there are both Republican and Democratic monitors in the room with you and their lawyers and, you know, all of them wearing belts. I mean, it's just it's a mess. Right. It's a mass to

0:24:21 Thomas: Yeah. How many belted lawyers does it take to count a ballot? Yeah.

0:24:31 Andrew: Hang a Chad. Right, this is great. We are now the only source for hanging Chad jokes in the past 16 years. This is fantastic. That should be a tagline.

0:24:34 Thomas: Yeah. Well, we'll say the past 14 years or so, because there's a good two years of nothing but hanging shad and dimpled shad. But yeah, recount, all that.

0:24:43 Andrew: Yeah, 15-15. If you go into your heavy Norm Macdonald voice, that would make it even better. So, okay, so suppose you're convinced, though, Breyer says, this would be really easy to solve, we'll just, I'll just... we're the Supreme Court. We could just tell the state what to do, right?

0:24:55 Thomas: Oh, yeah. Yeah, we've got that special gavel, right? We could probably bring out the special special gavel. There, we tell you what to do. That's how it works, right?

0:25:08 Andrew: Yeah. Right, right. Even if you're convinced that's going to take too much time, the Ruth Bader Ginsburg dissent puts it, I think, better than I could, so I'm going to quote it. She says, I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount kept. And I really liked how terse that was.

0:25:34 Thomas: Yeah.

0:25:34 Andrew: But basically, you sort of have a double hurdle here, because remember, you're talking about a conservative majority overturning the state court's interpretation of its own election laws, right? They're saying, Florida, your Supreme Court, the highest authority on how to interpret Florida laws, has screwed up how to interpret Florida laws and you have to do it this way. And Ginsburg says, "Look, you're really saying you think that submitting a total that everybody in Miami-Dade County knows is false because they've done two-fifths of a recount, right? They know that the initial total that they've certified is false, but they have nothing else to do because they haven't finished the the recount, you're honestly saying it's better to submit a knowingly false number than to go through a process that the state Supreme Court thinks is sufficient to qualify."

0:25:55 Thomas: Yeah.

0:26:28 Thomas: It's fine. Yeah.

0:26:29 Andrew: Right. And there's some great, I mean, if you are an RBG fan, and I know we have listeners who are notorious RBG fans, go back and read her dissent in Bush versus Gore, because it is, I think, the beginning of her developing that reputation. She has some great lines. And I thought that was one of them, that you are really crying crocodile tears when you say, it's so unfair to recount differently in Volusia County versus Palm Beach County versus Miami-Dade, so nobody gets to recount anything at all, right? I mean, that's the kids arguing in the backseat approach of jurisprudence.

0:27:04 Thomas: Take away the toy from everybody. You can't just... Yeah, exactly. And what was the third one? I can't... Now I can remember.

0:27:07 Andrew: Right. Right. Right. Third one was that you and you didn't ask for a recount on overvotes. And and again, I think there's not really.

0:27:14 Thomas: Oh, it falls into the same kind of category, right, if the state already decided what it wants to do so why still

0:27:19 Andrew: Yeah. And yeah. And Breyer addressed Breyer, addressed that in his dissent as well. And and both of them. Again, I thank both the Breyer approach of, well, if you know, if this is really an issue, then we could just tell the state to count the overvote. Or, alternatively, you know, it might be less than ideal that the state is not counting the overvotes, but that's still better than doing nothing. Right. This. What happens?

0:27:44 Thomas: Better yeah well Okay.

0:27:47 Andrew: This decision comes out December 12th, which is the 3 U.S.C. 5 safe harbor provision line. It stops the recount. That is a mandatory injunction. So even though those counties want to continue recounting votes, they are prohibited by law from doing so. So they stop. The electors meet under 3 U.S.C. 5. They certify Bush the winner of Florida's 25 electoral votes, and George W. Bush becomes president.

0:28:16 Thomas: Yeah.

0:28:17 Andrew: So what are some interesting aspects? After the election, a number of organizations went back and said, if Gore got what he wanted, right, which is the hand recount using the standards in practice at the time in those four counties, would he have won? And those results are somewhat ambiguous. There was a a very well publicized study, uh, immediately after, you know, like, I like, like two months later, it was a Washington Post study that said it wouldn't have been enough to overturn, uh, the 537 vote margin, so he still won.

0:28:58 Thomas: Interesting.

0:28:58 Andrew: Other studies, again, it depends on how much money you invest and where you go. Other studies have suggested with those recounts that Gore would have won. But the real punchline is if Gore had asked for a uniform statewide recount of all the votes from the beginning, he would have clearly won, and won by, I think, 10,000 votes, right?

0:29:23 Thomas: Really?

0:29:24 Andrew: It was. Yeah, um, and and

0:29:26 Thomas: How did they figure that out?

0:29:27 Andrew: Um, There were, um, a lot of resources. We can link to, I've got some of these articles, but, uh, but basically a bunch of newspapers, uh, got together, uh, went through, they used some statistical models, they, They looked at some of the existing results and partial recounts that were done. And it was, and that's sort of the basis for their, their studies. And there's some, there's at least one American Political studies that went through that. And I think that, if so, that the the challenge that the Gore team was facing was Bush, the Bush team is trying to run out the clock. Right. They're trying to sit on their lead. And even after you've won December 8th, a partial recount from Florida, from the Florida Supreme Court, you know that there is this safe harbor that the electors are planning to get together in four days.

0:30:24 Andrew: And you know the recount's not going to take place in those four days. And so they were trying to balance between wanting to craft a request for relief that would benefit them, right, obviously, but also mindful of the more you ask for, the more requirements that are in it, the longer the time period. And so I think they came up with the idea of let's stick to the limited relief that we're already talking about from the Florida Supreme Court. And I think that that went into why they only sought the limited release from the Supreme Court, because they were sort of mindful of the clock running out. And at the same time, they were mindful of, boy, these are, you know, it doesn't do us any good to ask for a hand recount of votes in the panhandle, because those votes in The Panhandle that are mispunched are going to be Bush votes anyway.

0:31:16 Andrew: Anyway, and and I think that the degree so so that was the decision that they made. There's a there's a strategic aspect, but I think the fact that they were not able to go to the Supreme Court, what I would want to do were I representing Al Gore at the time. And again, let me be very, very clear. The people representing Al Gor were much smarter than I am and much more experienced arguing before the Supreme court tonight.

0:31:40 Thomas: Oh, can I, can we, can I get them on the show or is there a way to do a, yeah.

0:31:42 Andrew: Yes, exactly. Yeah, the David Boies podcast, I think he charges $2,000 an hour, so we will have to build up.

0:31:47 Thomas: Yeah, oh, that's high Patreon goal.

0:31:52 Andrew: Yeah, if you want David Bowie's on the show, donate at the $2.000 per episode level, with that caveat in place, as somebody who has argued in, I've argued in my state Supreme Court, which is called the Maryland Court of Appeals, I have argued before the D.C. Court of Appeal, which has the highest state court in the District of Columbia, and in numerous federal appellate courts, I would like to be in there with a clear and consistent story. And I would have liked to have gone in and said, as my introduction and as my answer for every difficult question, you may it please the court, what we seek is the true count that reflects, as best as human beings are able to do, the actual number of people that voted for my candidate and for the opposing candidate.

0:31:52 Thomas: Very high Patreon go. Yeah well

0:32:47 Andrew: And we don't know what that number is. And if it turns out that that number favors George W. Bush, so be it. We'll walk away. We're wish him well. We appear at the inauguration. But if that number favours Al Gore, you've got to let the people decide. You have to let that count be counted. You Have to figure that out. And I don't think that that would have changed the result, because I think Bush v. Gore was coming out the way it was no matter what. I think it was a 5-4 decision. It was a clearly political decision.

0:33:20 Thomas: Of the 5-4 Supreme Court. Well, if what you said about the asking for a full recount, if that were true, that eliminates two and three, right?

0:33:33 Andrew: It Does. It does. But I think that you would still have the three USC five argument. And I should point out that in his dissent, David Souter, I think, he did he call it? Oh, he didn't call it nonsense. He said it was, quote, "not a serious argument." Argument, um, Yeah, The The the safe harbor deadline. And, you know, I should point out, um, outside of, uh, of Antonin Scalia, who was known to be very, very sarcastic, particularly in his dissents, David Suitor was not known as a particularly sarcastic Supreme Court he was not, he did not, you know, line them up for laughs at the chuckle hut like he's he was a straight-laced guy. And to call something not serious is about as strong a

0:33:49 Thomas: The number one thing. Yeah.

0:34:22 Thomas: Yeah

0:34:22 Andrew: Condemnation As it really Is Yeah, Exactly.

0:34:23 Thomas: That's a lawyer smackdown that's a whoa whoa

0:34:25 Andrew: That is That Is taking the glove off and Yeah, Exactly, um, and I and look, he's right. I mean, it's it's why I pitched the argument the way I did to you in as in as favorable of terms as I I possibly could, know, and you sort of picked up on that ambiguity right away, because it's, because no court has ever held before or since that 3 U.S.C. 5 creates a mandatory deadline that affects how a state can interpret its own election laws. Everything, I mean, it's just sort of clear from I shouldn't say it's clear from the the face of it, because it's incredibly it's worded in an incredibly convoluted way. But when you piece through it, and when you look at what other courts have done, and when you look at the other laws around it, right? I mean, it doesn't make sense to say your count has to be done by December 12th.

0:34:26 Thomas: There that's a walk-off yeah

0:35:18 Andrew: If there's a provision for 15 days later, Congress can knock on the door and be like, Like, what's the count, guys? We still don't have your numbers, right? In my view, that's the last word on that. I do think got it wrong. And it's, I mean, it sort of brings us full circle to the beginning of episode one. But, you know, it's why I have a hard time when people who, you know, even among folks who are saying, you know, well, I live in Oregon, so it's okay for me to vote for a third party, and I want to achieve X and Y, and like, you know, this is going to happen. I mean, nobody could have predicted what was going to happened in Bush v. Gore.

Nobody could have predicted that Al Gore was going to lose his home state, that he was going to lose Bill Clinton's home state that he was going going to lose West Virginia that, you know, Michael Dukakis, you know, I'm a card carrying member of the ACLU won West Virginia. And so, you know, trying to say, well, I can vote strategically. You know, I don't know. I mean, if you, you

0:35:33 Thomas: Yeah yeah

0:36:17 Andrew: Live in California, right? I mean. You know. You probably vote strategically in California. You know? You probably float strategically here in Maryland. So maybe we're not the best examples of picking up this cause, but there aren't too many other states where I think you you could say, I know how this is going to turn out.

0:36:35 Thomas: Cautionary tale everybody cautionary tale so So, anything thanks for listening. Anything, closing thoughts from you?

0:36:42 Andrew: No, thanks for listening, and we'll see you next time on Opening Archivists.

0:36:46 Thomas: There

0:36:53 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.