OA286: The Census and Disenfranchisement

Transcript

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

[0:00:03] So I hold myself in contempt if you try to pull me up here to court with that attorney. [0:00:19] I'll ask the questions here, carjacker Willie. Objection! I'm going to allow it. It characterizes the defendant as a carjacker. [0:00:30] You didn't kill Thompson, but you did, Mr. Wells. Yes! Yes, I killed Ned Thompson! I killed him! I killed him! I killed him! I killed him! [0:00:45] You're out of order! You're out of order! The whole trial is out of order! You're out of order! [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez LLC for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast. [0:01:17] Hello and welcome to Opening Arguments, episode 286. I feel like that was one of the old computer with 486, 80286, 16 bit Intel processor. There you go. Well, that's the theme. Change all your plans, Andrew, because that's the theme for today's show. No, not really. Deep dive into 1985 computing technology. We are still beautiful San Francisco, on location, where all the law is happening. That's why we're here. It's not a vacation. Don't who told you that? I didn't. Nobody said vacation. I didn't say vacation. You're the puppet. No puppet. No bubbit. No bubbit. Uh, how's it going, Andrew Torrez? It is going [0:01:57] fantastically well. Uh, tell me a quick question first. Legal question: what legal remedies do I have, uh, against you for taking the last beer out of the fridge? I think I have standing. You do? You have, you have suffered injury in fact, in that you do not have a beer. But I also didn't buy any of the beer, so I feel like like, that could be a standing issue. But did you buy any of the beers? I actually, in fact. Oh, you bought the beers. Okay, so I have no standing. I think we've discovered I have no standing. That's okay. Hey, that's what, sometimes we get an easy one. This could be, you know, intentional infliction of emotional distress. True. It could be fraud [0:02:37] if you, like, promised me one and then got me to donate to you. My conduct here is extreme and outrageous in drinking this beer in front of you. [0:02:45] Okay, good. So that's a good starter question. Question two, tell us about, there was just, as we were going to press here, like in between episodes, there was another Flynn document. This is like breaking, breaking for us. Obviously won't be so breaking for other people because, you know, that's how time works. But breaking news, lay it on us. Yeah. So in Friday's episode, we talked about the Michael Flynn sentencing and how he fired Covington and Burling. So they filed a motion to withdraw. In addition to filing that document at at at or around the same time, a [0:03:26] document is filed just under notice, parenthesis, other. Other, okay. Um, the power to otherwise, as we yeah, it I have never look, this is the reason in which that happens is because when you are on the federal CM/ECF, which is the electronic filing system, um, you have to select from drop down boxes the things that you do, right? And so, this is a thing one of them is like, "I may have committed some light treason." Yeah, right, "light treason" is not in the box, not one of them. So this is [0:04:06] just marked as notice, other. And And what makes it strange is, usually when you submit a document, that document is accompanied by even if, even if you're just like submitting a piece of paper, you would write something with the caption on it and you would call it a line or something else, right? You would say, "Hey, just giving this to the court, attaching this document." What this is, is this is a one of the 302 investigation reports, been redacted, from Mueller, Mueller's team interview conducted by Peter Strzok and name redacted [0:04:46] with Michael Flynn concerning his contacts with Russia. And so we talked about this at the end of the show last time, and I'm going to upload it to the OA, to openargs.com, to our directory, and I'm going to leave this 302 out there for folks to read. It, I think, confirms sort of what we said, which is this one at least strongly seems to minimize Lynn's role in the Trump administration and his contacts with Russia. And so, you know, I'm going to dig into [0:05:27] it. It's a 10 page. It's two separate documents. I'm going to dig into it in some more detail. But between now and then, you can read the documents and take a look. No, that's a teaser and a half. Uh, I believe you've got other stuff to tease though. I am really, really excited about doing this case. It got bumped because, uh, you'll see when we get to the B segment, but the Supreme Court just issued an opinion in Mont versus United States, M-O-N-T, and you know, you get these kind of silly New York Times puff pieces about like, does John Roberts vote with the liberals? And, and again, the answer, that's been no, no [0:06:07] right, this is a case in which the five justice majority are four conservative justices and Ruth Bader Ginsburg. Oh, yikes. And, and the four justice dissent is written by Sotomayor and joined by Gorsuch. So, the hell is happening? Yeah, it's a a it's a truly clown horn voting dot Supreme Court. Yeah, so really, really interesting alignment, and it's neat to kind of go through and break down, you know, how folks that that otherwise, you know, you might otherwise think, I know I can predict politically where they're going to wind up, um, you [0:06:47] know, how did the conservative majority my prediction is this isn't going to be one of those political like, it'll be a more obscure case, but that's my prediction, I could be wrong. Thomas, could could be wrong. Well, and we are going to tackle this in the next couple of minutes. Vito, please answer the question: does the defense's case hold water? No. Andrew is wrong. Are you sure? I'm positive. All right, enough about stuff we're not talking about, let's talk about what we are we are going to talk about, uh, step one: Andrew was wrong, uh, back when we were talking about the Pension Protection Act and that whole mess. Not [0:07:27] G. Zachary Terwilliger, but [0:07:30] Gordo Hardogensis, whatever. Gordo Hardogensis. Yeah, I was describing the Pension Protection Act of 2006. I mentioned that 2006 was a wave election year. That's a stupid thing for me to have said, because obviously the elections were in November of 2006, and the Pension Protection Act was passed in August of 2006, so that yeah, it, it, that was coming off of Bush re-election coattails. The Senate in 2006, at the time that this was passed, was 55 45 Republican, uh, and the House was 233 to 202 Republican, um, so was in fact [0:08:10] a wave year. Democrats picked up six seats in the Senate and 31 in the House, uh, but, um, there was no liberal sort of influence there. I mean, you know, who knows, it was a it was a bad, bad election cycle for, for Republicans. So maybe there was impetus to, to get stuff done, uh, in a bipartisan way. But, um, but no, there was no Democratic pressure. It was not as part of a Democratic wave year. I was just wrong on that. Okay, fair enough. Minor, minor details. That's okay. Well, I'm not, I want, I was hoping that would be more embarrassing for you, but it really, it really wasn't. So I guess we can move on, unless there's any, okay. [0:08:49] So I didn't get to gloat quite as much as normal on that, no big deal. All right, well, we were promised the deepest of deep dives by one P. Andrew Torrez, Esquire, and uh, here we go. We're going to talk about the citizenship case, the uh, the citizenship question, and how, how, what a bizarre turn of events. I don't know what the answer will be because I haven't listened to the Opening Arguments yet, because I'm in it. Right, when will then be now? Uh, but, but it is just knowing, you know, some of the background of what happened. I mean, I hope that this ends up being consequential because it'll make a good story. But, so it has all this intrigue, I mean, long-time Republican, like, [0:09:29] strategist guy Thomas Hoffeller died, and then his like estranged daughter, who, by the way, found out he died by I just, he, she happened to Google his name, that's how she found out he died, but went to go like check, "Did he save some things for me that I'd asked him to put aside?" So she goes, checks out all his stuff, and finds this isn't just like, oh, a file on the computer labeled, uh, "Republican evil stuff," uh, dot, you know, folder. Um, it was like a bag of like hard drives and thumb drives. And, and it's weird that you would need all that. I think people should just use, I [0:10:10] don't know, Google Drive, Dropbox or something. But I guess when you're doing covert operations, I don't know. So she found all that. And one way or the other, it ended up that there's information there about a study that he did to try to see is basically research how Republicans can be even more evil in terms of their effective gerrymandering strategy, like, could we gerrymander even better uh using this citizenship question? So I'm curious if this will actually have any sort of impact on the case. You know, does this lend any information to the, like, the motivation that, you know, a lot of times with these cases, uh, it's like we used Trump's Twitter [0:10:50] account to say, "Yes, this is a Muslim ban," you know, like, that will it be that kind of thing where the stated reason if I remember right is, oh, we want to uphold the 1965 Civil Rights Act, or whatever it is, the, the Voting Rights Act, uh, that's why we're doing all this stuff, because, you know, us Republicans, we're all about civil rights and that kind of thing, so we're just, we're just helping you out with that. So let's get the Andrew deep dive and find out what's going on here. Yeah, uh, that was an excellent summary. Um, remember, we covered this case, uh, which is captioned Department of Commerce versus New York, uh, back in episode 232, um, so go back there for a [0:11:30] For a little bit of a refresher, this has to do with the Trump Department of Commerce attempting to add a question on citizenship status to the 2020 census with out of the goodness of their hearts, right? Yeah. And And the allegation is that that question is being added so as to deter people from answering the the question who are either not legal citizens of the United States or who are adjacent to not legal citizens of the United States, and everything that is designed to reduce representation is designed like that, that that we know statistically that [0:12:10] favors Republicans and disadvantages Democrats. So I want, before we kind of get into the new stuff, I also want to make clear, because there's so much terrible reporting on this, that I want to make sure everybody in our audience is armed with this. Point one, if you receive a census questionnaire, you are subject to the penalties of perjury. You must answer those questions honestly. Point two, the census is not a count of U.S. citizens, right? It is, uh, and and it was initially governed by, uh, the Constitution, section two, right, of of [0:12:50] the Constitution, right? So So section one says, you know, the the legislature, Article One, Section One, says, you know, the the legislative power is vested in the Congress, and then it says here's how we get a Congress, right? And this was was the famous three-fifths compromise, right? Yeah, yeah. So representatives and direct taxes shall be apportioned among the several states, uh, which, um, are to be included in this union according to their respective capital N numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, uh, and excluding Indians not taxed, three-fifths of all other persons. [0:13:30] Right, so slaves were not citizens, but nevertheless they were counted, but they were counted as three-fifths of a person for persons, for purposes of apportionment. Obviously, the three-fifths clause was superseded by the 14th Amendment, um, but the language just then replaced that indicates what they were doing, right? They were counting people living in this country, not citizens living in this country. It was a crucial, crucial aspect of, you know, for, again, for you originalists out there, it was a crucial aspect to how the Constitution got passed. The three-fifths compromise, you learn about it when you're in elementary school, and then again in middle school, and then again in high school. So after that preamble, [0:14:10] right, is the actual enumeration shall be made within three years of the first meeting of the Congress of the United States and within every subsequent term of 10 years in such manner as they shall by law direct, right? So that is the constitutional mandate that the Congress needs to conduct a census every three years to determine the capital N numbers of the actual capital E enumeration of people living within the United States. Pretty clear, case closed, case should be closed, right? So there is, you can, you can Google this, you can look it up on Lexus, says there is case citation that says this [0:14:50] enumeration must count all residents regardless of citizenship status. Right. The enumeration affects the apportionment of representative to Congress among the state, the allocation of electors to the Electoral College, the division of congressional districts, the apportionment of state and local legislative seats, and the distribution of, quote, hundreds of billions of dollars of federal funding. And so this is a big, and the lawsuit is about the Commerce Department's transparent efforts to make that count less accurate so as to underrepresent Democrats. And that's been the goal since day one. [0:15:31] And the lawsuit currently pending before the Supreme Court is a challenge. Right. Because there really is. So there are three findings at the district court level. By the way, we talked about this in 232. But just as a reminder, this was one where the district court enjoined the use of the question. And then the Trump administration petitioned for certiorari before judgment. Right. So skipped over the appellate court and went straight to the Supreme Court. Um, uh, petitions, the cert petition was filed in January, uh, and then granted in February. Oral arguments have already been heard on [0:16:11] this case, which is going to play a role, and the government has requested that the Supreme Court issue its ruling by the end of June, so within three and a half weeks. So already I'm wondering, everything else being equal, timing wise, dude, could these documents even come into play? Forgetting everything, like even if they're the smokiest of smoking guns, could they still even come? Yeah, yeah, and and that's what that, yeah, we're gonna, we're gonna break that. Sure, so the the district court essentially made three findings, right? So first they, they went through, as we teased in in our intro segment, right, first they determined that there was actual injury, right, um, that that [0:16:51] plaintiffs had standing to sue on the idea that they would be prejudiced by being undercounted in the census. Second, that that was, that there was causation, that that injury would be as a result of adding this question to the census. And then the third and most crucial part of the district court's finding is essentially that adding that question is done for no legitimate purpose, us, right? Because that's the standard of the Administrative Procedure Act, right? We just read the provision of the Constitution, right? The provision of the Constitution says Congress gets to tell you how they're going to conduct the census. Congress delegated that authority to the Department of [0:17:31] Commerce, right? And it says, as they shall by law direct, right? There are no constraints on that. Yikes. Well, that seems like the bad people are going to get away with it. It does. So the district court's finding, I thought, was incredibly well-reasoned. And it is this, right, that that undertaking was arbitrary and capricious because it ran counter to the evidence in the administrative record, failed to consider important aspects of the problem, and contravened established agency procedures without a rational justification. Okay, and then the court gives six different ways in which this was irrational, right? But what that means is, and I [0:18:11] want to be really, really clear on this, all the Supreme Court has to determine is no, there there was a rational reason. Yes, right, if there's one. And and a rational reason doesn't even mean a good one, right? Yeah, a non-idiotic one, right, a non-discriminatory. There's really no protection against bad faith here, like they can just say, oh no, there's a reason. And then it's, even though the reason was totally because the one thing we, um, you know, non-evil Republicans had on their side in this is when you're trying to do something like this that's clearly only for one evil purpose, it's actually kind of hard to think of a real justification for it that would pass any kind of scrutiny. But when you have a Supreme [0:18:51] Court filled with people who may not, may or may not decide they care about that, I suppose that that could be the challenge. Yeah. And and whitewashing the history of this question is central to this case, already before the discovery of the Hofeller document we're going to talk about. So in March of 2018, Wilbur Ross, Secretary of Commerce, announced that he had decided to add a citizenship question to the 2020 census questionnaire. This decision, as the respondents note, the victorious plaintiffs below, contravened the the bureau's long-held opposition to such a question, disregarded [0:19:32] the extensive evidence to the contrary presented to the secretary, including the conclusions of the Commerce Bureau's chief scientist, right, that adding the question would harm the quality of the census count by reducing the response rate, right, and would reduce, and would produce less accurate citizenship. And they have, all I've heard a bit of a deep dive on how this works, it's really interesting, because they have, they have so many models and everything where they're trying to get, because you don't, the data is, you know, obviously can be horrible in different places, and they have all these ways of trying to balance out, like if we, you know, if we got this much response from here, you know, it's it's like, a it's like a massive 538 dot com. But for the census, and something like this throws a complete [0:20:12] wrench in all of that Yeah, and and the the crucial part up until a couple of days ago was that Ross said, we added in the May, in the March 2018 memo, said, "Oh, following receipt of a 2017, December 2017 letter from the Department of Justice." That letter said, "Hey, we need citizenship data so that we can enforce section two of the Voting Rights Act of 1965, right. So can you please look, this is just crucial for us to defend the the rights of historically trampled minorities." This is how the the respondents [0:20:52] put it in their uh opposition brief. They say the secretary, number one, reiterated that narrative in his testimony before Congress. These descriptions of the secretary's decision-making were misleadingly incomplete. Wow. As the secretary later admitted, in June of 2018, after this lawsuit began, the secretary acknowledged in a supplemental memorandum that the DOJ's letter had not initiated the assessment. Right. Right. Rather, the secretary and his staff had engaged in an extensive deliberative process about about whether to add the citizenship question soon after he became Secretary of Commerce in February 2017, right. [0:21:33] That's a week into the Trump administration. Yeah, so they came in with an, with an agenda. They came in with an agenda doing it, right? And then we're like, oh, oh, they made us do it later on after the fact to try to justify, right? This is, and again, this is undisputed. On the record, on the record. It's worse than that. DOJ did not submit the December 2017 letter on its own initiative, right? But but rather, Secretary Ross called up the Department of Justice and said, quote, "We request that you include a citizenship question in your request letter to us." Yeah, right, yeah. So that is like a [0:22:13] listener, Thomas S. Yeah, right, I mean, it's it's that level of of uh, of deception. It is. Oh, by the way, I got a question here, uh, that just just came in, uh, they're asking why is Thomas so good looking? Could Andrew talk about that for a while? Huh, okay, well, I I first, I'm hearing about it. First, I'm hearing about it. But you know, the rules are the rules, so, yeah, um, no, that, look, that's exactly right. So this is all in the record and the, we could evaluate what role this would play in the Supreme Court's decision making. I I would say, I I [0:22:53] would be very skeptical. A week ago, if you said, how do I think John Roberts is going to rule on this? Because that's really, that's all we are. Every Supreme, every political Supreme Court question right now, you have to ask yourself, is the backlash on this in history textbooks going to be so egregious that John Roberts will swallow his desire to enact conservative Republican outcomes and side on the forces of correctness and fairness out of a desire to preserve the institution, legacy of the Supreme Court? Because this isn't going to be like that, what you teased in the beginning of the episode where Ginsburg is, or anything like that. Like, this is going to be a straight up, yeah, this is going to be a straight [0:23:33] up partisan vote. But now, two days ago, we got the Hofeller document. And the way in which these come about is, um, remember that the Supreme Court granted certiorari before judgment, um, to the District Court of the Southern District of New York, um, but as a complicated matter of, uh, of jurisdiction, one weird trick. Yeah, this one weird, the that court, because that case never finished. Yeah, exactly. Yeah, so the court still has jurisdiction over these supplemental [0:24:14] aspects, and so what the plaintiff's lawyers did was move for sanctions, right, to say, yeah, you put on witnesses who have testified fraudulently. Oh, because they didn't reveal, right, this existed. They said, they said the opposite, right? They said, uh, and and we're going to talk about what they say, um, but they said there's definitely not a dead guy with files and thumbs drives everywhere. Yeah, 20 thumb drives. Well, and and so let's do that now. Let's let's talk about what the allegations are. Okay, says we're moving for sanctions, uh, because we now have gotten new evidence [0:24:54] that contradicts sworn testimony given under oath of, number one, uh, Secretary Ross's expert advisor, A. Mark Newman, and senior DOJ official who was acting assistant attorney general at the time, John Gore, as well as other, as well as other representations made by defendants to the court. The new evidence concealed by defendants strongly underscores the pretextual basis for their decision to add a citizenship question to the 2020 census. Although the appeal of this court's judgment is pending, this court retains jurisdiction over collateral matters related to the case. So the district court, the [0:25:34] trial court that issued the injunction in the first place, now gets to determine, okay, are sanctions warranted? Did you introduce lying testimony, testimony, and that letter? You are required, uh, by by law to inform the Supreme Court. Oh, hey, we sent a letter to the district court because the Supreme Court has jurisdiction over the the case in the main, while the trial court has jurisdiction over the, this is why I hope this all works out, because it's going to be a cool story. It really is, um, but it's not going to work out, so never mind. So, so, Thomas Hofeller. Quick negatron struck in the recording there. Hofeller is one of the [0:26:14] key architects of RedMap. Yeah, we've talked about him. We've talked about RedMap a lot. We've probably mentioned Hofeller by name. He is described somewhat euphemistically as a long-time Republican redistricting specialist in this internal memorandum. He says that's like describing Thanos as a long-time resource management specialist. Really? Like, that, yeah, I'm trying to, resource management consultant, consultant. Yeah, I'm trying to up my nerd cred. No, that's, that was excellent, that was good, that was good. You said, in his own words, on a bullet point on a slide, he says, uh, Hofeller says adding a citizenship [0:26:54] question would advantage, quote, "Republicans and non-Hispanic whites." Oh my God. Yeah, so, um, again. Again, more pieces of evidence for the, you know, nobody's the villain in their own strategy. I did want to ask you about what was actually found in all the thumb drives. I'm sure there's a lot we're not privy to that was found, but the stuff we are privy to, because there was some argument, and it might've just been, you know, the, the, the Trumpy people given the Trumpy argument, but like that, this wasn't really that much evidence of, of this grand conspiracy. It was like a study that he did in 2015, I want to say. Um, so do you know much about those details of what was on the, I know all [0:27:34] of those details, because these are submitted to the court. All right, um, August of 2015, the Washington Free Beacon, right, yeah, which is the newspaper you turn to when the Washington Times and the Washington right wing garbage monster and the right way and the Washington Examine, when they all say, come on, there are a little lizard people, right, in the Illuminati, I mean, I know, yeah, you go to the Washington Free Beacon, the last refuge for the conspiracy-minded extreme right. The Washington Freedom Eagle Locker Up, Beacon. So Washington Free Beacon commissioned Dr. Hofeller to, quote, [0:28:14] study the practicality and political and demographic effects of using citizen voting age population in lieu of total population in redistricting, right. So this is the foundational research, hey, if if we only look at citizens, what would the effect of that be on redrawing districts? It's like trying to gerrymander even more precisely. Yes, right, because this is the guy, right, this is the guy that was first asked, hey, how can Republicans use existing laws about drawing congressional districts to maximize their advantage, right, and he was like, sure, I'll tell you exactly how to do that. And he did, [0:28:54] and he wrote a computer software program that did that. Well, wait, hold on, yeah, did, Hoff, Hofeller, Hofeller was the, the red, that was red, I don't know that he wrote it, okay, I'm sorry, that that, but but he engineered, he he was part of the feasibility study, right? So that's what this document is, this is a feasibility study on changing how congressional districts are apportioned by, instead of looking at total population, which the Constitution of the United States requires you to do, look only at citizen voting age population. First Hofeller writes, um, "You can't use citizen voting age population," quote, [0:29:35] without a question on citizenship being included in the 2020 decennial census, quote: "Flaming gun, flaming gun, flaming gun, smoking gun, flaming gun smoking." I think I went for one step higher than smoking gun is a gun that's actually on fire because you just, you're, you are anticipating the next thing. Okay, this is literally the next sentence: "Even if a majority on the U.S. Supreme Court was sympathetic to the use of citizen voting age population for redistricting or reapportionment, the court is unlikely to permit such usage based on citizenship data from the ACS and would require instead an actual full enumeration on the 220 census." [0:30:16] 2020 census, census. Then Hofeller says, however, if a citizenship question were added to the 2020 census, the results, and again, quote, "Would be advantageous to Republicans and non-Hispanic whites," end quote. I'm going to quote from another section, quote, "Would clearly be a disadvantage for the Democrats," end quote, and third section, quote, "Provoke a high degree of resistance from Democrats and of the major minority groups in this nation," end of quote. So it's quote, "When we do the evil thought we've done." [0:30:56] study of the evil that we're going to do, we're going to need the Supreme Court to be evil, might work, uh, and we're going to need a rationale to include this question for evil doing purposes. Hope no one finds this, lol, see you at the next evil meaning. Is that, that's not, I mean, like I, I did not want to editorialize because leave it to me. Yeah, because look, the their words are that bad. Um, yeah, now at trial, remember we talked, this affects the testimony directly of Newman and Gore. So first the, uh, Ross's expert Newman testified in in a deposition that, and [0:31:36] then there's redacted stuff. Because again, there's potential for ongoing criminal harm. Newman testified that he did not rely on Dr. Hofeller for expertise on the Voting Rights Act, and that Dr. Hofeller did not appear to me to be an advisor to the administration at all. When asked about the substance of his conversations with Dr. Hofeller, quote, about the citizenship question in 2017, he testified that Dr. Hofeller said, quote, Mark, you need to make sure that we take a good census, that the administration doesn't skimp on the budget, end quote. Gore, meanwhile, testified that he, quote, drafted the initial draft of the letter to request the citizenship question [0:32:16] sometimes around the end of October, early November 2017, and did not name either Newman or Hofeller as people who provided input on the initial draft. All of this testimony, as the petitioners, as the respondents point out, is either misleading or directly false. In a congressional interview after final judgment, in this case, Gore disclosed for the first time that in October of 2017, Newman gave Gore a draft letter as to how to frame this response. Right. Then neither Newman nor Gore disclosed that Hofeller ghost wrote a substantial part [0:32:57] of that letter. And that letter, you want to guess the punchline? Uh, that letter, that's the punchline, of what, I don't know. That letter was the first time that the Department of Justice said, oh, well, you know, we need this in order to enforce the Voting Rights Act. So in other words, the Voting Rights Act excuse was created by Hofeller. That is also present in this document. Geez, um, so Hofeller's right, because we just went through and Hofeller says, hey look, uh, yeah, it would be fantastic if we could use citizenship instead of actual voting, but that never gonna happen. Even [0:33:37] if we had a sympathetic Supreme Court, we would need to change the underlying data. Now, one way to change the underlying data would be to ask this question, and one good pretextual question, pretextual reason for changing this question would be pretending that we care about the Voting Rights Act. This is the beginning of Austin Powers when, and it's like, it's not my bag, baby. You know, he's got the penis and larger. And yes, it definitely is my bag, baby. It's that, basically. That's the document we found. Yes, Hofeller, using the Texas State House of Representatives as a case study, detailed how a switch from total population to citizen voting [0:34:17] age population would cause districts with large Latino populations and or Democratic incumbents to disproportionately lose population with the largest effects in South Texas, El Paso and the Rio Grande Valley. Hence, Dr. Hofeller wrote, a switch to CVAP would reduce the number of districts in these regions and enable Republican mapmakers, of which he is the primary expert in the universe, to pack more Democrats and Latinos into each remaining district. He then explained, Quote, Democratic districts could geographically expand to absorb additional high Democrat precincts from adjacent Republican districts, strengthening [0:34:57] the adjacent, adjacent Republican more in the packing and cracking business. This is more, more packing. Yeah, right, this strategy could be employed to particularly great effect in heavily Latino areas, because, and again, quote, "Considerable population would have to be added to a majority of the Latino districts to bring their populations up to acceptable levels." Case closed, it's over, we won, everybody, we got it. Fortunately, this guy's dead, I'm glad he's dead, and now we got all the evidence, so they're, case closed. Yeah, so the, the bottom line on this, as the respondents say, those who constructed the VRA, [0:35:38] the Voting Rights Act rationale, knew that adding a citizenship question would not benefit Latino voters, but would facilitate significantly reducing their political power. That's the whole point. He used minority voting as a case study of how to help pack additional Democrats into already strong Democratic districts. That's the evidence that has come out. I will link it, of course, in the show notes. Government's response was to say, nope. Yeah. We don't know. We don't know. We have half fell. We've never heard of this guy. [0:36:16] Yesterday, sorry, at the time of recording this, so Thursday, June 5th, the district court had a hearing. The district court held that there was sufficient evidence to go forward on a motion for sanctions against the two government witnesses. Oh, I was going to ask if that, that was my next question, is, yeah, we, so we know these guys lied and maybe we'll get this evidence because of that. But is there also consequences for these liars? So yeah, there will be consequences for these liars if, if the, uh, plaintiffs prevail on their petition, that can be, uh, those sanctions can be anything the court ordered, because you can force [0:36:56] them to turn over money, uh, it can hold them in civil contempt, um, there, there, there will be consequences, uh, at minimum at the district court level. Now, here's the part that I don't know, that requires speculation, and this will either be a genius move by the district court or a terrible move. Oh, and maybe having a super high variance move is, is what you want. Yeah, I don't know, but emptying the net, pulling the goal. Yeah, that's right, that this is, that, that is, that is a perfect analogy. So the order entered Thursday, right, [0:37:37] was, uh, and I'm just gonna, I'm gonna upload it to the show notes, but I'm gonna quote it from its entirety because it's nice and short. "As discussed on the record at the conference held this afternoon, plaintiffs shall file any motion for sanctions or other relief, including any request for discovery." Right, because let me take kind of a sidebar here. Right, now they've got this smoking gun, but there's still more stuff, right? Like it doesn't, you know, they pile of them some, right? Exactly, so they can request additional information, right, additional discovery to support moving for sanctions. Right, now the evil people are like, "Does anybody else have any estranged daughters that are," you, yeah, just [0:38:17] check, uh, "and serve it on any party against whom relief is sought by July 12th, 2019." So July 12th, five weeks from today, "whether by defendants or any non-party against whom relief is sought," uh, "that opposition, uh, must be filed by July 26th, with a reply filed by August 2nd. At the time any reply is served, plaintiff shall deliver," blah, blah, blah. Um, you may recall the Supreme Court recesses at the end of June. Yeah, yeah, I recall that, and the government has requested, and the Supreme Court will do this, that it [0:38:57] deliver its opinion by the end of June. Okay, um, so right now, I, I can tell you as a, as a former state supreme court clerk, um, what has happened. Oral arguments were end of April. The court has already voted on this? Really? Yeah, and now that's not binding, right? You can switch back and forth. Okay, um, but there is a tentative division of labor, there is somebody writing the majority opinion. Yeah, they gotta start writing a bunch of stuff, I guess that takes time. Yeah, and, and, and that is due in three weeks from today, right, and so the question is, would it have [0:39:37] been better for the district court to grant sanctions on an incomplete record, right, or would it have been better for them to postpone whether they're going to grant sanctions until the end of July? And the question there is not a political question, right? Because the political answer is super easy. This story popped up, whatever, but district court award sanctions would be a much bigger story, this has kind of flown under the radar a little bit, that's not what the Supreme Court cares about. The Supreme Court cares a lot about what this district court judge thinks, and by waiting, [0:40:18] again, by, by proceeding prudently and cautiously and permitting discovery, knowing that this could produce embarrassing revelations, if this forces the Supreme Court to hold off on issuing its ruling, ruling, if this says causes John Roberts to go, "Yeah, I know I voted with you guys, but I'm not, I'm not comfortable signing on to that opinion at this time with this being up in the air." Yeah, this is one of the few instances, because the injunction is in place, this is one of the, yeah, the census has got to go out, it's got to get printed, it's got to go out. If the Supreme Court does not issue [0:40:58] relief by the end of June, they can't add the question. Really? Yeah, they can't do it. And so it's a high risk, it's pulling the goalie. Um, so I, I think I get it, but I'm not totally sure I understand. I get the reward part there, but what's, what's the bad outcome, that, you know, the other team, the bad outcome is an empty netter, that that the Supreme Court issues use its relief in June, the citizenship question gets added, and then in August, right, we get a huge bombshell of, uh, you know, it's even worse than that, right, like, here's the paper. Yeah, I mean, you [0:41:38] know it's sort of tough to imagine even worse evidence than what we already have. Nothing we can do can get that evidence out faster. So you're just saying the other side, the other the other option would have, would have been to say that this is enough? Would say, "Yes, you have produced enough evidence for us to say that this is sanctionable conduct," and I think the judge said, "Boy, I'm I don't know that that's going to be enough if I just rule on sanctions right now." I think the judge's thought process was that that that is too easy to dismiss as being improvident. Is there a possible interpretation that the judge is just like, "Well, we need to, this is how it should go," yeah, like, "Forget the Supreme Court, [0:42:18] we should see more evidence before we do sanctions"? And, and, and I I wanted you to get right, I wasn't trying to prime the pump on you on that, like I I wanted you to get to that point. This is what a a good judge who doesn't care about the political implications of this should want to do. Yeah, this is, this is what you would do in the ordinary course. Um, but I can't imagine that that this judge is not aware. I mean, the Supreme Court granted certiorari before judgment, right? Like, I mean you know, he knows this is a big, important case, and it's a high risk it's a high risk strategy. Yeah, wow, what a, what a one weird trick, kind of, sort of. Yeah, but yeah, I did that [0:42:58] because that census has to get printed. There They are running out of time. There's the one thing that we have on our side is that they are enjoined from putting that question on the on the thingy. I just have to hope that, you know, I'm not usually the optimist prime, in fact I'm the negatron, but there's part of me that thinks this is so bad that Roberts, because this is a history book entry, this is a, "Okay, remember that time when they tried to just like, just nakedly, openly discriminate against," like, you have all the phrases that you, "non-Latino white," what was it, "non-Hispanic," non-Hispanic whites, like, it's just so obvious, so this could, [0:43:38] I mean, again, I don't hope for much in this world, but I could almost see this being too much for, uh, for Roberts, maybe. And look, let's couple this, right, so you're, you're being an optimist prime there, I'm going to be a negatron. Great. Yeah, let's, let's couple this with the fact that in the next three weeks an opinion is coming, a five-four opinion that Roberts signs on to that says, "Yeah, political gerrymandering is just fine," right? We've talked, that one was already, well, it hasn't come, right, but he's, he's signaled that that's coming, so, so I think the the what goes along with what you've just said is it may be a bridge too far for Roberts to [0:44:18] say, "Yeah, gerrymander as much as you want, and also rig the data collection to make it easier for you to gerrymander." That that may be a bridge too far. We may find out. Oh, wow, what a mess, what a, what an evil mess. Yeah, so I just can't believe all the smoking, I mean, smocking guns, that is, just a person, these files that were recovered are just smocking guns, smoking guns, I mean, it just really is like, sometimes you think, "Oh, people really aren't that evil," or, "They're not trying to do," this is just the guy saying all the evil things they're trying to do, and, uh, just right out in plain sight now. And does, will it matter, will it affect anything? We'll see. [0:44:59] Yeah, this is a gun. A gun made of other guns that shoot guns that those guns themselves are smoking. Yeah. And it is time to thank our new patrons at Patreon.com/law. And we begin with Peter Graham, On Heart, Noel, John, Corey Floyd, Martin, Bill Garthright, Danny Wheeler, and they pledge, so I have to say it, "Poop on a Confederate grave." Okay, you you got that, you got your dollars worth. Your turn. And thank you to, uh, Devos, Amash, and Sears, [0:45:39] walk into a bar. Nice, nice setup there. Jonas E Vincent, Omnia, Kevin Calhoun, Colleen Wilson, "AOC, why won't you date me?" I mean, "Debate me, stop with the, stop calling," and just respect to people's preferences, and Chris Taylor. Thank you all so much for supporting the show. If If you'd like a shout-out, head on over to Patreon.com/law. Give us as little as a buck, and we will give you a shout-out as awesome as this. Oh, no associate of this firm has ever failed the bar exam. No kidding. All right, now it's time for TTTBE, the answer. [0:46:18] Oh, not confident in this, but I'm very interested to hear, maybe I'm going to learn something. Here we go. This was a super fun question. This was a torts question about an automobile accident. Accident, and, um, it involved a child, uh, who was pushed, suing their own parents. Yeah, well, and I'm gonna explain that part too. It involved a child who was, uh, pushed by a playmate out into the street, was struck by a car, and then at trial, uh, the jury determined that the total damages were a hundred thousand, and they split the fault three ways. They split it fifty percent to the driver, thirty percent to the parents of the child [0:46:58] himself, and 20% to the parents of the other kid who pushed him out into the street. And then it notes, and this is the crucial part of the question, that the court in this jurisdiction has adopted two important rules. Number one, the comparative negligence doctrine, and number two, joint and several liability, in that says, in in place of common law rules, there's also a bit about intra-family liability, that's a total red herring, it is doesn't have anything to do with anything. Um, now, Thomas, before we get into the the answers, you, you ask why [0:47:39] would he sue his own parents, and the answer, as the, um, which is in the predicate of the question, is that this lawsuit is brought by the parents' legal representative, and the parents, and and that legal representative represents only the interest of the child. The interest there is to find everybody who might be at fault, you name everybody in a lawsuit, uh, and so if his parents were at fault, it's in the the child's best interest to sue the parents. So the, the, yeah, the representative has an obligation to do whatever, it's not like the parents get a lawyer for the kid, right? Though, how does that work? So that, what, what happens is the court will say, "We appoint [0:48:19] uh, so and so as a lawyer to be the official representative, uh, for to act on behalf of the kid," uh, and then the parents do pay for the lawyer, right, but the lawyer has to take, uh, has to answer to his client, and here his client will then be represented by a truly neutral third party. So this is not that uncommon, uh, of an okay. Now, um, your answers were 30,000, 50, was how the question, was how much can the child's representative recover from the driver of the car, maximum amount, maximum amount, if anything? Yep. So, so the options were A, 30,000, [0:48:59] B, 50,000, C, 100,000, D, nothing. Thomas's second chance bar exam, you eliminated A right off the bat. 30,000. There's no way to get to 30,000. I didn't think so. And I will tell you, patrons will get to see... Patrons always get not only the full text of the bar exam, but they get the answer key. I think the answer key screws up this question. What? Yeah. The answer key. I'm going to read it to you. It says... A, incorrect. This might be correct under a pro rata allocation of damages, but it's not correct under comparative negligence with joint and several liability. That's not true at all. We're going to talk about the two concepts [0:49:39] that are tested here, but a pro rata allocation to the parents would not get you to 30,000, right? Because the parents aren't 30% responsible. Well, the parents are actually, I'm sorry, um, the driver, it would not get you to 30,000 for the driver, right? Yeah, um, so, so we're going to talk about that in a minute, but, uh, you eliminated A, is a very, very good elimination, can't possibly be 30,000. Yeah, you also eliminated D, nothing, um, which is a really, really good elimination, and it gets to this, question was designed to test your knowledge of two legal principles. Number one is the difference between comparative and contributory negligence, and number two is the difference between pro rata and [0:50:20] Joint and several liability. So nothing would be the rule under a contributory negligence doctrine. In contributory negligence, if you as the plaintiff are contributorily negligent to your own injuries, then you get nothing. Specifies we're not dealing with contributory, we're dealing with comparative negligence, so D is also a good elimination. So then the question is 50,000 or 100,000, and I'm gonna, I'm gonna skip the suspense building, you got this question exactly right. I think I got slightly lucky though, now that I analyze it, because it's the joint several liabilities, exactly, it's 50 because they [0:51:00] were found 50 at fault, but because of the joint and several liability, the maximum amount, it's possible to get to the whole 100 000 Now, when would that If the other people have no money? Yeah. So joint and several liability means that we prioritize making the plaintiff whole. And then we require the defendant. So the plaintiff can recover the whole sum from any of the defendants. And then the driver could sue the- Exactly right. I will admit I lucked into it a little bit. I lucked into it a little bit, but I think I was most of the way there. Yeah, yeah. And so that's right. Right. So here, even though the allocated sum to be allocated to [0:51:41] the driver under a comparative negligence doctrine is $50,000, the plaintiffs can recover the full $100,000 and then force the driver to sue the other two for contribution. I got lucky. It's funny though, this happens often and it makes me mad. Right when we've sat for a bit and then we come back to this, right when you start reading the question, I usually know somehow more about it. Like right when you said the joint several, I was like, like, oh, that's why. I knew it right when you started reading the question. And then, but, you know, fortunately, I got lucky and still got it right. But that's a fun one. Yeah. Great question. And we're going to have to, but I mean, most of all, I won, but we're going to also have to hop in the time machine and [0:52:21] find out who else won, who's going to be awarded fame and fortune, just untold amounts of fame and fortune. I can't even told you about it. Who are they? Hop in that Meanwhile, at the Hall of Justice, the winner of this week's TTTBE question is Heath Enwright. And people are going to have to listen to the patron bonus to find out why Heath won. You can follow Heath at his house, because I don't think he tweets, or by visiting his website, latercheese.com. All right, and I think we may have a little bonus for our patrons only. And if whoever's listening thus far, [0:53:02] get excited. [0:53:04] We are going to have some special guests answering that bar question. Maybe others will see noted luminaries such as Eli Bosnick, No Illusions, Heath Enwright of the Puzzle and the Thunderstorm group. They are in the house with us. We're going to see if we can get them on for a little bonus content. It'll be fun. It'll be hilarious. It'll be law content as well. Something for everybody, so that's another patron benefit, and I'm sure we'll push it even more at later times, but catch that on the Patreon feed, and that's all for now. What do you think? Sounds good. All right, we will see you Friday. We've already teased some stuff. I'm looking forward [0:53:45] to that. See you then. You betray the law. [0:53:52] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to 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 our page on Facebook and follow us on Twitter at OpenArgs. Until next time. [0:54:41] This podcast is a production of Opening Arguments Media, LLC. All rights reserved. [0:54:49] Opening Arguments is produced with the assistance of our editor, Brian Ziegenhagen, Our production assistant, Ashley Smith, and our researcher, Debra Smith. Special thanks to Teresa Gomez and the entire OA Wiki team. Follow them at at OA Wiki. And a big thank you to our Facebook group moderators, Alicia Cook, Natalie Newell, Emily Waters, Eric Brewer, and Brian. Check out the Opening Arguments Facebook community. And finally, thanks to Thomas Smith for creating the show's theme song, which is used with permission. [0:55:16] There's literally an a** driving by the house in some sort of crotch rocket type thing, back and forth. Just back and forth it's right outside our Airbnb right outside the window cool where was I