OA54: Gerrymandering

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode number 54. I'm your host, Thomas Smith, and that over there is your other host, Andrew Torrez. How you doing, Andrew?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:29 Thomas: I'm doing great. Excited for another OA.

0:01:32 Andrew: Yeah, me too.

0:01:33 Thomas: Yeah, every single one is so much learning for me, so I'm always excited about it. So, with that in mind, why don't we get to our first question of the day?

0:01:45 Clip: He who questions training, only trains himself at asking questions. What?

0:01:53 Thomas: So, Greg Botcher, maybe, and Adrian Borschoff both ask maybe a basic question, but I think I'm not the only one who is confused about this, so here goes. What is the difference between a jail and a prison, or is there a difference? Difference, I will attempt an answer, which is that prisons, uh, are, aren't they usually state run, and then a jail is like county or city run, uh. Jails, I think, are more temporary holding, and then the prison is where you go when you're sentenced, uh, am I, am I close? I should hope so, but, but if I'm wrong, I'm gonna be embarrassed. Oh.

0:02:27 Andrew: No, you are pretty much entirely correct. There are both state and federal prisons. But the distinction runs the other direction. There There are no federal jails.

0:02:35 Thomas: Yeah, of course. Of course. Yeah. Right.

0:02:40 Andrew: All jails are either state or county municipal run. Generally, although, you know, colloquially they mean the same thing, generally jails house folks who are either in pretrial detention. And the way in which pretrial detection works is that if you are arrested for a particular crime, while you are awaiting trial, you may be released on your own recognizance. That is just sort of free to go. You may be held pending bail. And if you can't post the bail or if you are held without bail, because you are a danger to the community and or a flight risk, you can be incarcerated. You will be put in a jail while you are awaiting trial.

0:03:30 Andrew: Jails also typically, in most states, if you are sentenced to a misdemeanor offense and are serving less than one year, you will be sent to the jail as opposed to prison. Prison is also, if If you've heard the word penitentiary, prison and penitentiary mean the same thing. So those are your distinctions. You've got it correct. We tend to use them interchangeably, but as a practical matter, jail, security, state state or locality run, uh, pre-trial detention or misdemeanor offenses.

0:04:14 Thomas: Hey, so that was so quickly. I'm hoping we have time for another listener question. Listener Lydia S sent this one in, and I think you might have missed it in the email, and I'm probably in trouble because it's been a little while, but I'm going to make sure that Lydia S, whoever that is, gets her question answered. And by the way, if anyone else who is married to me wants to get a question answered, that's a good way to get your question answered is be married. So I think that that should apply to some people, some, some number of people. But anyway, Lydia had a great question the other week when all this news was coming out about how much we are spending to secure Trump Tower and to, you know, Trump security and all this bullshit because of the ways that he is operating that are not the norm for presidents.

0:05:07 Thomas: And I wanted to know, and she wanted to know, actually, is there, do we have any recourse for that? Like, is, do the American people or Congress or whoever, do we have any way of limiting that, of saying, hey, well, this is unreasonable, the amount that we're spending on Trump security for all his, you know, for his building and for his Mar-a-Lago and all this stuff? Or are we just stuck with whatever it takes to secure him in however he wants to operate?

0:05:36 Andrew: First, uh I'm really, really pleased that Lydia S is a listener to the show.

0:05:42 Thomas: She's a big fan. Let

0:05:43 Andrew: Thank the best that I can think of with respect to, uh, recourse is we, we talked about, we had our episode, uh.

0:05:53 Thomas: Me venture a guess, I'll give you some stalling time. I'm going to guess, my guess was going to be that based on the answers we've gotten in the past, that the recourse would all be hypothetically, uh, political. It would all be, this is something that the Secret Service's job is going to begin to secure whatever they have to, and if it's exorbitant and if it's crazy, it would be something another president could campaign on, uh, running in 2020 or something, thing, you know, so that was going to be my guess, but

0:05:53 Andrew: Yeah, I think that's right. Kind of in broad outline, but in terms of, uh what specific constitutional or statutory remedies are out there, uh we did our two-part episode with Seth Barrett Tillman on the foreign an emoluments clause. But one of the things that we discussed kind of only tangentially is that there is a second emoliments clause in the Constitution.

0:06:44 Thomas: Real Trump.

0:06:45 Andrew: In Article II, and it explicitly prohibits the president, names him by name, so there's no Tillman argument about uh, yeah. The founding fathers were really prescient when when forsooth in 240 years when a uh you know

0:06:53 Thomas: Oh. No, it's yeah when a president who has a tower becomes president yeah, president Sauron

0:07:03 Andrew: Right um no it, it, it specifically applies, that's, that's fantastic, that's a shout out to a bunch of folks out there who are Tolkien fans, um, so, uh, when, when, sorry, I was distracted by Sauron.

0:07:21 Thomas: Yeah, you wouldn't be the first, so it's very reasonable, uh-huh.

0:07:26 Andrew: So it specifically applies to the president and not just officials, right? The Like Tellman argument. And it prohibits the president from receiving, in addition to the salary, which we all know that, you know, our president has bravely foregone the $400,000 a year salary that comes with being president. But he's prohibited from receiving, quote, any other emolument from the United States or any of them. Right. So from any level of government. Right? And I certainly think you could make the argument that the kind of behaviors that were rampant during the Trump campaign, right, which were using Mar-a-Lago and then charging his campaign the highest possible rates to stay at Mar-a-Lago.

I mean, it was just it was blatant that the Trump campaign was profiteering off of running for president. And look, previous candidates, non-serious candidates, have used our broken political process to essentially profiteer and run for president, Newt Gingrich, I think, was never. I mean, I think he would like to be president, but he conducted his campaign at the same time that he had books to sell. So did Herman Cain. So, you know, it there's a level of profiteering. But what Trump did, I thought, was egregious, kind of even by, Know, modern sort of profitering

0:07:30 Thomas: Yeah yeah yeah

0:08:50 Andrew: Standards. Um, if he's engaged in the same type of behaviors, that is forcing the Secret Service to pick up the tab on, uh, Trump properties, I think you have a very, very good argument. Uh, again, um, there not a lot of precedent on this. There's not a lot of historical information. But this, I mean, we don't have the time to sort of go through Zephyr Teachout's article that we talked about and that we linked, the anti-corruption principle, back in our Seth Barrett Tillman episodes, to the show notes and read that. It's pretty clear to me from reading the history that using the government to prop up your business is precisely the kind of emolument that this clause was meant to prohibit. Unlike the foreign emoluments clause, it is very, very clear that there was meant to be.

0:09:41 Andrew: And again, we've come out that way on the foreign. But I don't know. There's no one making an argument, and there is no linguistic argument to be made, because it specifies the president by name, this clause doesn't apply. So I would add that to the pile. So that's, that's my. So in terms of, can we bring a civil suit and get the money back? Probably not. Can we add it to the file of stuff that this president has done that eventually one can only hope will get him out of office? I sure hope so. So great question.

0:10:07 Thomas: Yeah, all right, yep, good question, and as usual, semi-disappointing answer, but no, it's, it is just a little interesting. It might be interesting to look at more in detail at some point about what the, there's got to be some regulations on that, because I, I'm sure the, the Secret Service is, uh, committed to a level of security for the president, no matter what. And it's like, I, I, it's hard to imagine that there's ever been a situation where it's been such a pain in the ass for them, but who knows? It might be something worth look, taking a deeper dive into maybe on, maybe I'll do it on my show or something, but yeah.

0:10:34 Andrew: Yeah, I think that'd be a lot of fun. I would warn the other way that, you one of the things that I would not like to see happen, and you saw Trump sort of float this proposal to replace Air Force One with his private jet, right? Like, I would not want the net result of that kind of inquiry for Trump to be like, oh, well, that's OK, I'll maintain my own private security force. Um, that would be, uh, considerably more terrifying, uh, in, in my view, so, you know, uh, be, be careful where you kick over stones, I, I guess I would say. Yeah.

0:11:16 Thomas: Right, for our main segment for the day, I'm very excited, we are finally going to talk about gerrymandering. We've got, this is a, would you say this has got to be one of our most requested topics, actually? I've, I think we've gotten a, yeah, yeah, a lot of requests for this, uh, so I'm glad we finally get Andrew's expert opinion. There have been some cases in the news about this, and I, I even saw one of the graphics shared, shared, uh, that was an illustration of like, is this, uh, is this a fair district, and, and the line was just absurd, like it was all the way over, the circle, it wasn't even close to a circle, it was a very odd shape, it was like a Dr. Seuss type shape, uh, of a district, to sort of illustrate how badly some of these areas have been gerrymandered. So we're going to talk about that today. So how about it, Andrew.

0:11:27 Andrew: Absolutely. Yeah And, and let me start by saying that I think gerrymandering is the political problem with our legislature. People, uh, will, uh, tweet at me or ask me questions, uh, all the time, like, you know, what do I think about term limits, what do I think about abolishing the electoral college, all of that sort of stuff. And in my view, I answer those all the same way. Well, I make fun of people who are pro term limits, but answer those all mostly the same way, which is to say, first, let's fix gerrymandering, because until that happens, all of the, the rest of the proposals, in my, my view, are kind of subsidiary. And in particular, one of the proposals to abolish the Electoral College would just award electoral votes by congressional district. And that would be a disaster if implemented right now because of the status of how our congressional districts have been drawn.

0:12:55 Thomas: Hmm. And you've also, I want to add, you've also been pretty fair, I think, in describing the fact that it's a bipartisan problem. So it's not, from what you've said in the past anyway, it doesn't sound like this is oh, this is something evil Republicans are doing and Democrats aren't. Seems like it's, both sides do this. Is that right?

0:13:17 Andrew: So, Yeah, Absolutely. And, in fact, I live in Maryland, which is one of of the three states that has pending legislation on gerrymandering. So here's the theoretical problem, the way to think about it. And then we can talk about the specific implementation in a variety of states. So imagine that you had a state with 10 congressional seats, uh, and two million each of uh Democrats and Republicans, right, and just, just, you know, for hypothetical, so nobody of any other party, right, you could then very easily engineer uh one congressional district in which you put 400,000 Republicans, right, and then took those remaining 1.6 million Republicans and spread them out that, that would give you just under 180,000 in every other district.

0:14:12 Andrew: Then what you would do is put zero Democrats into that first district and take the remaining two million Democrats among those nine remaining congressional districts, which would give you just over 220,000, right? So you'd have a 40 plus thousand vote majority for the Democrats in nine out of 10 districts. That translates to 11% advantage and one majority Republican district, right, so you're, your state would then be would then have nine safe Democratic seats and one safe Republican seat and no toss up seats, despite the fact that your state is 50 50. Right now, well,

0:14:38 Thomas: Yeah. Yeah. Yeah. And, you know what? It even gets, it's, I think, more complicated when you think of the fact that that's a, I think that's a really basic, good illustration of how bad it can be. But what about if you're in like a fifty to forty eight situation, you can actually still gerrymander by having every district be fifty to fifty eight and then ten out of ten districts would be Democrat or Republican or whichever you're gerrymandering for, even though it's, it's a very close proportion of voters. And I think that's an interesting problem. It's interesting that every district could represent the overall state percentage, but it could still be really unfair to one party or the other if 10 out of 10 districts in a 52-48 state go one way.

0:15:38 Andrew: You know, that's it's really incredibly prescient that you talk about that, because that's one of the biggest issues that the courts have faced in tackling the problem of gerrymandering from a constitutional perspective. Right. Because something seems a little wrong of if you have a state that's 50-50 having nine out of 10 congressional districts be of one political party, or if a state is 52-48 having 10 out of ten be of of one one political party. But The counter-argument on the 52-48 is every district represents the proportion of the statewide population and a four point swing is enough to make all of these competitive districts. And so what it means is that in any given year, any candidate has a shot in all of the districts. In fact, a scheme that would take a 52-49 state and give you 10 then 52, 48 seats, uh, would certainly be upheld. Um, so that's a, that's ein bit of a preview. We're going to get into the law. Um.

0:15:53 Thomas: Yeah, yeah, right, right. Okay,

0:16:43 Andrew: But so, but uniquely the problem that, that I have described, uh. Is, um. Referred to in shorthand in, in two ways, right? It is packing that is taking the 400,000 Republicans and sticking them into a district that is now 100% Republican.

0:16:43 Thomas: Yeah. Yeah. Yeah. And let me just amend a little bit what I was saying, because a big difference between what I said and what you said is those 10 districts wouldn't all be safe one way or the other. Like you described the packing thing where you throw all the Republicans or Democrats into one district that makes the other nine way safer seats. And that is more problematic. So, so that's an interesting angle on it. That, that does make it slightly different because hypothetically you could swing all 10 districts pretty easily.

0:16:58 Andrew: Yep. Yeah. Right. Yeah.

0:17:27 Thomas: So, but anyway, yeah, just to amend what I was saying,

0:17:28 Andrew: Yeah. No, that's right. Yeah. So packing is sticking all the Republicans in one district, and then cracking is taking the remaining Republicans and spreading them out so that they are a distinct minority in all the remaining districts. And in fact, in my research, I may have missed some states, but there are states that seem particularly egregious in using this packing and cracking method. One of them is my home state of Maryland, which has is an overwhelmingly Democratic state. Uh, nevertheless, we have eight congressional districts, we have seven safe Democratic seats and one safe Republican seat, right?

0:18:08 Andrew: It is, it is a a textbook example of what I'm talking about. Uh, Illinois is the same way. Um, if you look at congressional districts, they're these tiny slices of uh Cook County and Chicago that get uh dispersed into a lot of different uh, districts in order to get, in order to bring up Democratic representation, uh that then includes, you know, they're sort of, they're shaped kind of like word balloons in comics, right? Um, and, uh, they, they include huge swaths of rural uh, lightly populated rural areas and then, uh, huge numbers of, uh, Chicago residents who were sort of, ah, crammed into those uh districts in order to to get the Democratic representation up. Those the two Democratic states that that are that are aggressively uh gerrymandered right now. Um, there are six states that are aggressively gerrymandered to

0:18:07 Thomas: Those

0:18:57 Andrew: Favor Republicans, and those are, and if you listen you'll you'll quickly see why there's a problem. North Carolina, Pennsylvania, Ohio, Michigan, Virginia, and Wisconsin. Uh, and you will notice that those are blue to purple states Yeah, exactly. And And nevertheless, the boundaries are drawn in such a way that overwhelmingly favor Republicans and favor Republicans into very, very safe districts. Right.

0:19:10 Thomas: Very swing statey. Yeah, man, take it back. This is a Republican problem. It's more of a Republican probably.

0:19:25 Andrew: Well, look, here's why. Here's why it's a Republican problem. In 2010, the Republicans developed a piece of computer software. It is called REDMAP, all in caps. And REDMAP is exactly what it purports to. It is you feed in the data and it spits out the best way to gerrymander the districts. And most states, is a notable exception, most states the legislature gets to draw the districts And so, yeah,

0:19:39 Thomas: That's not a giveaway.

0:19:58 Thomas: I was going to say, let's, Let's, uh, take a step back and, and I want to ask you a basic question, which is how often do they get to do this? And what would, because if it were so easy to gerrymander, it would seem like the minute you had a majority of one party or the other, they would just be like, "All right, rewriting the districts. Here we go." It's going to be, and that would just lock it in for the rest of time. Is this something that can only be done every so often, every, you know, with a census or something? Uh, what's the process of writing these district lines? Yeah.

0:20:33 Andrew: And the answer is that under the Constitution, the authority to draw districts is delegated to the states. But the Constitution, kind of uniquely at the time, I mean, we've talked about the incorporation doctrine and, you know, the sort of general sense at the time of the ratification of the Constitution that the states could sort of do whatever the hell they wanted, the Constitution uniquely gives the federal government a check on egregious state line drawing in terms of their districts. So the ordinary process is indeed tied to the census. Every 10 years when there is a national census, we reallocate at the federal level congressional districts. And so, you know, you will say, because of population shifts, you know, the state of Ohio has lost two congressional districts, and Florida and Texas have each gained one, or what, you know, whatever, based on the fact that fewer people live in Ohio and more people live in Florida since the last 10 years.

0:21:31 Andrew: And then it's up to the state, like if you've lost a congressional district, obviously, you have to redraw your districts, right? If you've gained a congressional district, you got to redrawn your district. And by and large, There's tremendous discretion given to the states. Now, interestingly enough, most recent Supreme Court decision on gerrymandering is a case called League of United Latin American Citizens versus Perry. That is our good friend Rick Perry. So, you know, this is a Texas case. 548 U.S. 399. What happened in Texas, just to give you just a brief overview on the facts, Texas has been trending red for a long time. In the 1990s, Democrats gerrymandered and redrew districts to hang on to congressional seats in Texas despite the fact that Texas was becoming overwhelmingly Republican.

0:22:25 Andrew: When Republicans finally got undivided control over the governor of the governor's mansion and both houses of the Texas state legislature, they implemented a mid, a session, it was like 2003 or 2004, redistricting to undo what they thought of as the unfair Democratic gerrymandering, and, of course, engineered unfair Republican gerryandering. And the argument that was made and rejected before the Supreme Court was we should treat any redistricting between the census years as presumptively invalid. There was some support for that, but there were not five votes for that at the Supreme Court level.

0:23:10 Andrew: So the Supreme Court has has rejected that rule that think I comports with your intuition. Right. That says, yeah, we get it. Every 10 years you've got to redistrict. But if you start redistricting in 2004, we know that's because you just want to take away some Democratic seats and put in some Republican ones or vice versa. Um, so what's the problem, the problem right? As best described in a constitutional sense is, um. Can be illustrated with the results of the last couple of congressional elections, for example, where Democrats statewide and nationwide, because you add up all of these gerrymandered districts, receive more votes, but nevertheless, they get fewer seats in Congress, right?

0:23:56 Andrew: And the reason that happens is because the RedMap software is really, really good at what I said, which is to say maximizing the number of safe seats for the party doing the redistricting, in this case the Republicans. So you want to do a couple of things. Like when you were gerrymandering, you don't want to create—if you have a 52-48 state, you Don't Want to Create 10 52-to-48 districts because all of those are going to be competitive races. I mean, four points is nothing, right? It is considered a non-competitive race if it's outside of 10 points. So that's why in my hypothetical, I made it 11 points, right.

0:24:29 Thomas: Okay. Yeah. Yeah.

0:24:36 Andrew: And so the idea is you basically are trying to get as many non-competitive seats of the party in power as possible. In order to do that, you then wind up creating non-competitive seats for your opponent as well. And there is, I'm going to link the video in the show notes. There's a terrific video from former California Governor Arnold Schwarzenegger, whom many think is preparing to run for the Senate in 2018, who has made gerrymandering kind of his signature issue. And got clips from The Running Man and other Schwarzenegger movies. It's pretty funny on top of everything else. So I will link it in there.

0:25:22 Andrew: But he touts the plan that was put into effect in California that basically took redistricting away from the legislature and put it in the hands of an independent commission. And another proposal that's been offered by Princeton professor Sam Wang, who I have recommended to folks before, is to take act of drawing districts away from the legislature and put it in the hands of the judiciary, right, have the courts redraw. Now, neither of those is foolproof, right? If you have a very, very political state Supreme Court or, you know, this political redistricting commission, corrupt that as well. But it certainly seems to be a better step in the process in terms of trying to avoid the kind of classic dilemma of both parties look at it and go, "Oh, yeah, well, when the Democrats were in charge, they drew these districts all in their favor."

0:26:20 Andrew: So by God, we're going to draw this all in our favor, right? And, you know, it's difficult to reach a neutral, right, neither side wants to be the first to be neutral about that, right. You always want to extract vengeance for what's happened. Um, now we've talked about that as a political solution. What's the potential legal solution? What, what is pending? So there are cases pending, uh, in Texas. Uh, this case is Perez versus Abbott. Uh, there is a case pending in Wisconsin that, due to a weird statute that I'm not going to have time to explain, is actually going to be appealed directly from the district court in Wisconsin to the Supreme Court, will probably be there by, and the Supreme Court has to take it. It's one of the few, uh, non-cert cases. Um, so

0:26:33 Thomas: I Didn't

0:27:11 Andrew: That will, yeah, there's some cases the Supreme court has to take by and large, they get a discretion on everything else. Um, and, uh. And so that Will probably be in the fall 2017, uh Supreme court term. Uh, and there is a case in Maryland that is working its way up through the fourth circuit. So those three cases are designed to try and address a fundamental area of uncertainty at the Supreme Court level, which is, do you have a constitutional right to sue if you live in a gerrymandered district? Right. And the and the principle of that seems pretty straightforward. Right. Like if you live in a gerrymandered district such that the outcome is a foregone conclusion, isn't that interfering with kind of the bedrock principle of of one person, one vote? Right.

0:27:12 Thomas: Know The Supreme Court had to take anything? Interesting.

0:28:06 Thomas: Really?

0:28:06 Andrew: And and in fact, this was first articulated by the Supreme Court in 1986 in a case called Davis versus Bandemer 478 U.S. And there the operative holding was in these sorts of cases, we, the Supreme Court, have repeatedly stated that districting that would, quote, operate to minimize or cancel out the voting strength of racial or political elements of the voting population would raise a constitutional question under the Equal Protection Clause. OK, so court says in this Davis versus Bandemer case, yes, if you're in a gerrymandered district, that's a justiciable constitutional question.

0:28:52 Andrew: You have the right to come to us seeking relief. However, the flip side is the Supreme Court has never adequately defined when the relief kicks in and how to administer it. They just haven't been given the kind of test that appeals to them to answer the question. Because, you know, think about, right, when you gave the 52-48 example, you can make a good counter argument with respect to, you know, the 52 48, right? Which is so long as the state reflects the rough population of the voting and you've created these, you know, competitive districts, that's not that doesn't seem to be classical gerrymandering. Even if the outcome is, you 10 Republican seats out of 10 in a state that's only 52, 48 Republican.

0:29:40 Andrew: So in the earliest stages, right, this was first brought 1986. Well, you know, we know what kind of computers we had in 1986, the kind I used to record the show on.

0:29:51 Andrew: But, you Know, I mean, you're talking about 48 K of RAM and a 6502, right? I mean You know, it was it it the sorts of evidence that were brought before the Supreme Court were based evidence of look, you know, Democrats are, 65% of the population of this this particular geographical area, but they won under 30% of the seats or things like that, right? They were just outcome. And the counter argument was a, you know, look, you can't judge solely by the outcome here because, you know, things are fluid, the arguments we've went through. Now that we have parsed the data more carefully, think there is some reason to think we may be successful in going before the Supreme Court and saying, look.

0:30:38 Andrew: Look, the measure by which we can judge how gerrymandered a district is, is the gross percentage of the additional votes, the margin that are necessary in order to reflect the will of the people. So, for example, Democrats won, I believe, three million more congressional votes than Republicans in 2016. Every House seat was up. Yeah. And nevertheless, Republicans maintained a fairly sizable majority in the House. This is all based on the red map redistricting. So we've talked about what would it take for the Democrats to win back the House of Representatives.

0:31:05 Thomas: 1986.

0:31:25 Andrew: Well, it should take, on the generic congressional ballot, a 50.1 to 49.9 Democratic majority. And, you know, OK, fine. If that doesn't quite get you to, you know, 218 to 217, if they're, you know, you can have rounding errors. But certainly if the Democrats win by a percent, you would expect them to have 220 out of 200 out of 435 seats. If they won by 3%, you'd expect them to have 230 or 240 seats and so on. In reality, to make up for the way in which districts are drawn, to stay even, Democrats have to win by about four points. And overcome, to affect a net change, they have to to win bei seven or eight points, right? So to take back, it's why we've said politically, in terms of, the you question on impeachment, 2018 would have to be a wave election would have be a Democratic plus eight plus nine plus 10 for the Democrats to take back the House and the Senate.

0:32:23 Andrew: And that's because there's not a direct correlation between the voting margin and the voting results. So now that we have the computers that can assess that, that's a pretty good argument. And it's pretty hard to sort of argue to the contrary. If I told you that there was a 2004 case that tried to argue to, to the contrary, that, so that first case, remember, uh, I said the first case is 1986, Davis versus Bandemer. There's a 2004 case that wants to say, "No, no, no, totally forget about Davis versus Bandemer, no, there's no such thing as justiciable constitutional question for," uh, gerrymandering, uh, "that's just not part of the Equal Protection Clause." Uh, who would you say, who would you guess wrote that opinion in 2004? Yeah, it,

0:32:47 Thomas: Boy.

0:33:09 Thomas: I wonder, it would, it be somebody with integrity who net, who forgets everything about politics and just does what he believes the founders wanted? Could it be somebody like that?

0:33:22 Andrew: Was Antonin Scalia.

0:33:22 Thomas: What do you know?

0:33:22 Andrew: Shockingly enough, so, um, this case was a Vieth, V-I-E-T-H, versus, uh, Jubelirer, uh, it involved redistricting in Pennsylvania, uh, Scalia Was Not Able

0:33:30 Thomas: Let me guess. The districts were cruel, but they weren't unusual. Oh my God.

0:33:36 Andrew: Um, fortunately, and in it Alito says, uh, "We should hold that Bandemer was wrongly decided," and uh, fortunately, um, that case was only able to draw, uh, a for justice plurality, um, and so, so Bandemer remains good law, fact, the swing concurrence in Vieth was written by Anthony Kennedy, who basically said, is good law, it's still a justiciable controversy, but I'm voting with the majority—I'm voting for justice plurality to uphold the districting in this case because I'm not convinced of method. And then the League of Latin American Citizens v. Perry, that's a 2005 case. By 2005, the Supreme Court basically said, and there were two new appointees, Roberts and Alito, Supreme Court basically said, "Yeah, we are not going down the path of Vieth."

0:34:31 Andrew: We a justiciable controversy, but we are sort of adopting the Anthony Kennedy position of we just don't have a good method for diagnosing and fixing the problem. And in fact, the opinion written by Scalia that says, hey, I want to go back to Vieth. There's no justiciable controversy here. You do not have an equal protection clause right to bring these kinds of lawsuits. That part of the opinion was only joined by Clarence Thomas, was not joined by Roberts, was not joined by Alito. So very, very interesting. As we know, Scalia is dead. And even though it looks likely that he will be reincarnated, possibly in in worse form by Neil Gorsuch. That's only two votes for Vieth, right?

That's only two votes for "you don't have a political right against gerrymandering," uh, and it is, uh, what looks like, uh, five to seven votes, uh, for, "Yeah, this is an Equal Protection Clause violation if, if someone can give us a justiciable standard." Um, and I, I really, I'm going to link them in the show notes, uh, obviously, uh, I don't, don't have the time to go through sort of the mathematics of the proposed methodology, but there are several proposals that are potentially pending before the Supreme Court, it—that that are directly based on implementing the model that I've talked about, right? A sort of surplus votes model of looking, "Well, okay, if Democrats win by 4% but"

0:35:16 Thomas: Yeah.

0:36:01 Andrew: Are losing seats in the Congress, that tells us that we have a problem, right? That tells usthat we havea prima facie violation and gives you some methods to try and solve it. But like I said, I think that the judicial judicial committee or independent committee, those aren't perfect, but they will at least they at least have some opportunity to stop kind of the most naked of partisanship on both sides. So so I'm going to be watching the Wisconsin case in the fall term very, very closely. I think it's really, really interesting, and I think it's possible we might get something. It strikes me as possible. Look, like everybody knows. I attended a lecture a couple of weeks ago given by the Maryland State Bar Association in which the speaker said wistfully, like, you oh, you Know, well, we did this.

0:36:08 Thomas: Yeah, yeah,

0:36:59 Andrew: There would be a solution. I mean, of course, that was back when you could pass laws. And everybody in the room kind of laughed. It's a room full of lawyers, right? Everybody in the room laughed. Look, there's a reason why all of the activity in the Trump administration has been focused on executive order. It is clear that the legislative system now and for the past eight, nine years looks pretty broken. And I can see a Supreme Court being very, very receptive to that. And to sort of bring it back full circle, I think turning congressional districts into competitive races, making sure that it reflects. And even, you know, look, like, my side isn't going to win elections every time, right? Like, you know, we lose.

Making the Congress reflective of the general will of the American public again strikes me as, you know, not only sort of consistent with our founding, but the best way to kind of uh prevent you know what we see now, which is, I mean, we see uh the most egregious examples are obviously to me the ones that are on the other side, uh, but you can do it in both parties, right, people who are just sort of tone deaf and don't care, and you know, I don't, somebody asked me on Twitter the other day, they were going to a Senator Joni Ernst uh town hall, and said, what, what should I ask her? And I said, ask her, what, if any, level of institutional corruption of efforts to benefit Donald Trump and his family personally would you find troubling, right?

0:37:07 Thomas: Yeah. Yeah yeah.

0:38:39 Andrew: Just an open-ended way, right, because we know she doesn't find Jared Kushner troubling, right? We know she does find Jeff Sessions troubling, like it is just, there's just a a total disconnect because uh, you know, we're doing this sort of shirts and skins, like, oh, you know, it all that matters is that I root for my team, and and making people responsive to the will of the voters rather than the will of their team is in my view the key way. Yeah.

0:39:03 Thomas: I want to ask what is the difference though between this and the Electoral College. If you have an argument for a case to be made, if you've been wronged by gerrymandering, do you not have the same kind of complaint when the Ele doctoral College gives somebody in some random state way more voting power than I have in California? I'm going to guess that it just has to do with the way that these things are established and the fact that, you well, I won't even guess. What is the difference there? If there's a case to be made in gerrymandering, then does the same case apply to the electoral college?

0:39:46 Andrew: You you were right on it, and I think a little nervous of of saying it because it sounds a little silly. Um, a provision in the Constitution by definition cannot be unconstitutional, right? So the Electoral College is spelled out in detail in the Constitution. Uh, it violates the principle of of one person, one boat. Uh, but that principle is derived from the equal protection clause, uh, and you know, applies to sort of everything that is implementing, but um, but but cannot apply to the the provisions of the Constitution itself, you would need um the sort of the de facto system, right, like you, you, if every state uh passed a law, and and there is a project underway to do this, whereby um the states, states pass a law that says if either 38 or 50 states pass similar laws, then this state will award its electoral votes in proportion to its congressional districts.

Right. So you could, through that sort of de facto repeal of the Electoral College, by having all 50 states passed similar legislation. Now, mind you, if you could get all 50 states to pass that kind of legislation, you could probably get them to pass the constitutional amendment as well. But there, so be it. There's a little bit of an impediment with respect to that. Right. Because right now, I certainly would not want, I would not not want for winner-take-all large Democratic states to start awarding by congressional district when,

0:39:53 Thomas: Yeah, true.

0:40:15 Thomas: Don't have that remedy. You would still need an amendment to get rid of the electoral college. Oh, I see.

0:41:19 Andrew: You know, in the absence of large winner-Take-All Republican states doing the same thing and the essence of solving the gerrymandering problem, right? Right now, it would make that problem worse, go by electoral district if—I mean, could you imagine the situation where you don't even have the Electoral College and yet you still have a massive three million vote majority for the losing candidate? It um, and we have talked, obviously we've talked about the Electoral College before, both, you know, for for good and for ill, um, but sorry.

0:41:28 Thomas: Yeah, yeah, yeah. Well, yeah, I had a feeling there was nothing to that argument, but I just wanted to ask it just in case anyone else was thinking it. But yeah, okay, gerrymandering, I'm convinced, huge problem. I hope that there's some, so there's, and you said you're going to be keeping an eye on this. When should we find out again the results of these cases?

0:42:14 Andrew: Expect I that it will be docketed on the fall Supreme Court term, which runs over, um, meaning that we're unlikely to get an opinion about this time next year.

0:42:20 Thomas: All right, well, we'll keep an eye out for that. We'll keep our eye on that, as well as all the other things we're keeping an eyes on. I love it, we've got numerous things we've been tracking on the show. And uh thanks for taking us through that all

0:42:31 Andrew: And we have our listeners uh do a pretty good job of keeping us honest, and you know, reminding us of predictions, both uh positive and negative. But I feel like we're doing a good job on that. I'm pretty proud of what we've done so far. Excellent.

0:42:47 Thomas: Right onward to the rest of the show

0:42:50 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:42:59 Thomas: Ooh, here's one, a segment we haven't done in a little while. Closed arguments. I love this one case So there's a really, uh kind of funny case that happened in the UK and we'll all have to remember Remember, for those who are in the U.S. like like us, that the laws are quite different on both of the considerations that we're going to talk about with someone named Katie Hopkins. Now, I haven't really been familiar with this person, but you tell you mentioned she's kind of like an Ann Coulter of the UK. Is that accurate?

0:43:29 Andrew: Yeah. Or Michelle Malkin, right. Like she's a, she works for the Mail Online, line and um, in addition to writing her column, she's kind of a a professional Twitter troll with people, um, so

0:43:40 Thomas: So something interesting happened where she accused somebody of something and she had gotten the wrong person. Uh, so she, she essentially made a false accusation, uh, about something online and in the UK that's, that's not quite as easy to get away with. And so, uh why don't you talk about what happened and the sort of how it illustrates the differences between US and UK law. Yeah,

0:43:42 Andrew: Yeah so there is a um a food blogger and an activist for uh hunger campaigns, uh, in the UK, his name is Jack Monroe. He wrote a column that um Katie Hopkins disagreed with, and so, in fine sort of Twitter troll fashion, rather than uh engage with him on the argument, she wrote back, scrawled on any war memorials recently vandalized the memory of those who fought for your freedom? Grandma got any more medals?

And um, and what she had done was confused um Hopkins uh with another columnist with whom she had a long-running feud, uh, named Laurie Penny, and Laurrie uh Penny had said uh that she uh was sort of defending people who had vandalized a a World War II uh monument that, with which, read, um, "F Tory scum," uh, and so she'd gotten the person wrong, uh, and in kind of fine winning the Twitter war fashion, um, Monroe, the food blogger, wrote back, "Dear Katie Hopkins, public apology plus five thousand pounds to migrant rescue, and I won't sue you. It'll be cheaper for you and very satisfying for me." Now, you know, in Twitter speak, so there was some abbreviation there, um, Topkins said no, uh, then Monroe sued her for libel and won, uh, and and the the the justice, in awarding twenty four thousand pounds in damages, wrote, "This case could easily have been resolved at an early stage."

0:45:42 Andrew: There was an open offer to settle for five thousand pounds. It a reasonable offer. And instead, court awarded 24,000 pounds in damages to Jack Monroe. And this is crucial, required Hopkins to pay attorney's fees because the loser pays in those cases in Britain. Um, so this really illustrates, um, a couple of things. I mean, number one, it's pretty funny. Um, number two, uh, and, and let me kind of drill down on number two which is sort of the difference between the New York Times standard and, uh. The lesser standard in the UK.

0:46:19 Thomas: Well, let me frame the question. If this happened in the U.S. where somebody made a mistake like this, like confused the person, would you be able to apply the pressure of saying, apologize or else I'm going to sue you? And then second question, would there be a substantial likelihood of success in that suit?

0:46:20 Andrew: Yeah, sure.

0:46:43 Andrew: Yeah. And in that case, almost certainly not, right? Like the standard under New York Times v. Sullivan for defaming a public figure is actual malice, which is either knowing falsity or reckless disregard for the truth. We've talked about this with all sorts of potential libel cases, but it seems to me that one person with whom you have a Twitter fight for another is sort of ordinary negligence, right? Like it's not – I've done that before while fighting with multiple people on Twitter. It is not something –

0:47:11 Thomas: Yeah. Yeah. The line in the U.S. it allows for making a mistake. Right. Like, yeah. But, but, do you have to account for it or make it right, or like if you make a mistake and then you refuse to correct it, would, would that be then more of a willful?

0:47:23 Andrew: Yeah, yeah, yes.

0:47:36 Andrew: Yeah, if you continued to repeat the falsehood, then that second publication would be knowing falsity, right. Right. Like once You've been corrected and, you know, oh, gosh, I, I picked the fight with the wrong person on Twitter. Right. But that doesn't, far as I know, and I've, I've read a fair number of cases on this, it doesn't create a retroactive duty to go back and retract your statement. Right. And that's, that's really sort of what's the issue here is, you know, did she have to give this public apology? And you, you read the court's opinion. I mean, I don't want to take the side of this, you know, sort of odious, hateful person. But when somebody tweets at you, "send five thousand bucks to charity or I'm going to sue you," as a U.S. lawyer, I don't interpret that as an offer to compromise. I interpret that a sort of the kind of banging on your chest that I sometimes do on Twitter when somebody has said something monstrously stupid, and you're like, "you've just said something monsterously stupid."

0:47:40 Thomas: OK. OK.

0:48:42 Andrew: You do know that, right? Right. And, and, you know, look, this is an example of where, you know, I continue to be homer and patriot for my country, and I think that our system is better.

I'd rather have, the would I, would I, would rather not have a system in which people are nervous about going after individuals in positions of public prominence uh for their opinions, right, like it seems to me that that's the core of what the First Amendment is meant to protect, and even if it's just, you know, saying stupid things on Twitter, um, the principle behind the First Amendment is, uh, we want people to have sort of the maximal amount of freedom of expression that, that, that they can, you know, with we've talked, talked about some of the constraints, um, and then the second thing is sort of the clear implications of the effects of fee shifting, right, like this would not be, if both sides had to maintain their own costs, uh, this would not have proceeded to trial, um, so, you know, that, that you get to judge that, uh, based on whether you think certain cases ought to go to trial or not, uh, but, um, certainly, certainly, knowing that, even a meritorious party has to bare their own cost is an incentive to resolve things outside of litigation.

That can be good, it can be bad. Like we talked about the Stephen Novella case, case where, you know, you had a blogger, podcaster, who, you know, is not, don't know, maybe he's making a ton of money, if so, we're doing this wrong.

0:50:13 Andrew: But, you know, had to rely on donations to really able to effectively maintain his lawsuit. And, you know, we could talk about other examples where the threat or the existence of actual lawsuits has sort of pushed people to settle in ways that, that they wouldn't have had to have settled if costs were not an object. So, you know, it's their costs on both sides of that, of which is not to say that Katie Hopkins is not odious and hateful and says horrible stuff. I just want to be on record for that.

0:50:45 Thomas: Yeah. But it's interesting to, uh. To look at the differences in systems there, because it's, it's something that would totally not be a big deal here, but apparently can cost you quite a bit of money in the UK. If you make a mistake like that. Now is the time when we need to thank our top patrons our hall of famers over on patreon.com/law and they are andrew take it away And

0:51:00 Andrew: Yep Yeah. Yeah, Thank you to Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Steve Sigmund. Thank you to Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, LaBibliotecatrice, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page Hall. Thank you, too, our good friend Heath Enwright, to Jeffrey Maynor, The Wayward Willis, Detective Matthew Maxson, Zena, Dave Lovely. And thank you to Danny Baker at Combat Nonsense. Yeah.

0:51:43 Thomas: Thank you so much to Charone Frankel, Squick Thinger, Ian Ryan, Matthew Hillier, Aaron Graddy, YouAreHere, Aiden McCool, Brandon Smith, TVIsMyGirlfriend, NukesLion, C6Sara, John Bodley Esquire, Hunter Ashe, Kaylee Reiser, Jeff S., Sakashite Fukasumi, Philip Stromberg, Michael Schaefer, Michaela, TheElectronicFrontierFoundation at EFF.org, The Inciting Incident Podcast, podcast. Marissa, Alexa McCool, and her fabulous snarky publishing stuff. The NetSec, Heathen, Frederick, Alsamer, Sammy, Revan, Donald J. Trump, Super Genius, Conrad, Michaels, and Zabby. Thank you guys so much. I'd like to point out that we are inching ever closer to our 1750 goal of having an extra segment of Q&A every month, which I think will be really cool.

0:52:34 Thomas: That will be for patrons only, by the way. And in addition, I wanted to bring this up actually. When we hit our $2,000 goal, we will do a live show. I am itching to do a Live Show. And I don't think I've ever said one of my ideas for this Live Show, which I'm really excited for, which would be to do a special extended TTTBE and do like several questions, you know, and also get listeners listeners to chime in, audience members to chime in with their answers kind of in real time and then we can pick a winner and do all that. I really hope we do a live show to be able to do a segment like that. That'll be really fun.

0:53:13 Andrew: That sounds awesome.

0:53:14 Thomas: There's a lot we can do for a live shows that will be really exciting. This show I think will be great for that format and that's a long term goal that I'm really looking forward to. So if you'd like to contribute to making that happen, go to patreon.com/law and make a pledge. You

0:53:33 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:53:39 Thomas: All right, it is time for TTT TT, let's see, it's 3 ttt be and I, I believe this is question 16, and I believe that I am currently 8 for 15. Now, here's, I'm, I in an act of I don't know what, as to motivate myself, I think, think I'm going to drop the Esquire from my name if I go below 50%. So it's a big step, but I'm no longer going to be Thomas Smith EsquIRE. If I stay at 50%, I think maybe I'll give myself that little bit of room there. But if I drop below 50, I'm losing the EsqIRE. So big stakes here for every question. So let's hear it.

0:53:41 Andrew: Wow. Okay.

0:54:23 Andrew: Um, a business person sent his employee, an administrative assistant, to represent him at a conference where business deals are often negotiated. The principal gave the assistant all of the materials to set up a table with the principal's cards, brochures, promotional materials materials, price lists, and even some order forms with his logo on them. In addition, the assistant represented the third parties that she was there officially representing the principal and that she was authorized to execute contracts on his behalf. It's kind of a sexist question. Anyway, administrative assistant doesn't have to be a she. I'll rewrite this one next time we do it.

0:55:00 Thomas: Yeah.

0:55:00 Andrew: The assistant negotiated a deal for the business person with a third party, which the businessperson refused to honor because Cause he did not like the terms that were negotiated. Will the third party likely prevail in enforcing the contract against the principal? Okay. So totally straightforward question. A principal sends out his administrative assistant to represent him at a conference. She's got all of the promotional materials, priceless, everything else. She negotiates a contract, third party signs it. And then the principal says, nah, Nah, I'm not a big fan of that. Is the third party likely to prevail in enforcing the contract against the business person? A, yes, because the furnishing of the indicia of authority to act to the employee was sufficient proof to bind the principal.

0:55:51 Andrew: B, yes, because the principal is bound to the employees' actions whenever he sends an employee to attend a convention on his behalf. C. No, because people dealing with an assistant at a convention have a duty to determine whether that person is in fact an authorized agent. Or D. No, because the technological revolution makes it easy these days for a potential customer to first confirm the existence of actual authority. And I did not give anything away, uh, with answer number D, but Uh, but I Will, uh, I Will take your laughter, uh, to, uh, to indicate that you're not impressed with answer D.

0:56:22 Thomas: Yeah, I initiated the laugh there. Yeah? Yeah. Answer D final answer. No. Uh,

0:56:33 Andrew: All

0:56:33 Thomas: Yeah. Okay. I was worried a little bit about this one, but then when I heard the answers, I'm going to give a confident answer A on this. Uh, wouldn't have been surprised if there was some way in which the answer could be no. Um, listening to the question, my, my instinct was going to be a yes answer, answer, because it seems like they're a representative of the business and it seems like it's the authority is there. But I was like, well, maybe there's some way in which contract law will screw me over and there will be some specific, you know, reason that this person can't act as any sort of agent. But those no answers sound really bad to me. So unless this is a case of the bar really trying to trick me, which could be, I'm going to go with A, which seems, seems like the most straightforward.

0:57:19 Thomas: Uh, it's, it seems correct to me. So I'm, I'm rolling the dice. My, my Esquire is on the line. I'm going to go with a, is that a car? Is there a car that's named it? Yeah. It almost sounds like I was betting my, my, My pink slip for my, uh, Ford EsquIRE.

0:57:27 Andrew: Right. And if you would like to put your Esquire on the line, you can play along. Yeah.

0:57:39 Andrew: I I, I Believe I have told you this story, uh, in private, but this is the first time I've ever told it on the air. I I had a friend, uh, in law school, uh, who was, uh, approached, uh, by a would-be prostitute on Massachusetts Avenue who leaned over and said, "Hey, baby, you want a date?" And, uh, and he leaned back and said, uh, "No, but I want to commend you on the singularly appropriate choice of automobile," uh, because, uh, she was in fact driving a Ford Escort, uh, which I remember to this day. So, Michael Martin, if you're out there listening to the show, uh, it's a shout out for you, buddy. Um, utterly unrelated to the question.

0:57:40 Thomas: No. Oh yeah.

0:58:18 Thomas: I Think it's very related. Uh, so yeah. Put your Esquires On the, the Line, everybody, and Submit Your Answers

0:58:23 Andrew: Yep. S Squares on The line Here's How you Play along on Twitter. Uh, we announce the show at our account, which is at Open Args. You should be following us on Twitter. It's a lot of fun. And when we announce the show, retweet and quote out that announcement and include in that your answer as well as your reasons. You can include a little graphic that includes a lengthy answer if you want. Sometimes those win. Sometimes very, very pithy answers wins. All the time, very funny answers win. Uh, so, uh, that's how you play along. Hashtag TTTBE, uh, tweet us out, send us your answers, play along, have fun.

0:58:25 Thomas: Yeah. All

0:59:05 Andrew: You yep.

0:59:05 Thomas: And Of course, if you want to answer on Facebook, hit that share, dot, dot, dot, on our post, type in your answer, make it funny, make it all the things that Andrew just said, uh, and actually everybody should just tweet and Facebook the wrong answers so I can feel better about myself. That would be my, this is not an official Opening Arguments opinion, this is me, me, Thomas Smith, speaking as a private citizen, please everybody get the wrong answer so I can feel a little better about how badly I'm doing. But that's just a personal request. So as you've seen in past weeks, Andrew will pick an answer from either Facebook or Twitter, and it'll have characteristics that really speak to Andrew as to why it's the winning answer. So do that. It's a chance to get a shout out on the show. It's always fun to have participation. And that being said, I think that's all for today, right, Andrew?

0:59:51 Thomas: So thank you for joining us, thank you for another great week of Opening Arguments, and we'll see what BS we have to talk about that Trump did next week.

0:59:59 Andrew: Yeah.

1:00:09 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.