SIO248: Can Trump Steal the Election? with Andrew Torrez

Transcript

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

0:00:29 Thomas: Hello, and welcome to Serious Inquiries Only, this is episode 248, I'm Thomas Smith, and okay, here's the deal with this episode and the next episode, my idea was to have Andrew Torrez, of course, of Opening Arguments, famed lawyer, Andrew Torrez on to talk about the possibility of Trump trying to stay in office, this something that a lot of, I don't know, I guess I'll say us, but a lot, a lot people are really scared about, what could he do? It feels like there are no rules anymore. Could he find some way to not leave office? And as always with Andrew, we got going so long that it really turned into two episodes. So just wanted to give a heads up that the next two episodes are going to be this, but they're kind of distinct categories.

0:01:14 Thomas: So the first episode is about voter suppression and ways that Trump might cheat in order, and is, by the way, attempting to cheat in other ways, to win in the first place. And then the second episode is what could he do, uh, and running all the wildest theories by Andrew as to what Trump might be able to do, may or may not be able to, to stay in office if he loses.

So they're kind of two distinct things there, and those are the, uh, the next two episodes. I want to say that I will get the episode out early for patrons, so episode two of this. I know I don't do a lot of for patrons on the show, I should do more, but if you're a patron at patreon.com/seriouspod, you can get part two right away, uh, or at least within, you know, a day or whenever I can get it edited and up, and, uh, everybody else will have to wait the week or whatever, but either way, the next two episodes are that. So why don't we get right over to it with Andrew Torrez. And joining me, weirdly, for this show, is Andrew Torrez. How's it going, Andrew?

0:02:22 Andrew: Hey, Thomas, it's going fantastically well, always fun to return to the mothership, so,

0:02:31 Thomas: Uh, thanks so much for coming on, I really appreciate it, I know, uh, it's never a not-busy time for you, but, particularly, I-I'm sure it was a very busy time to come do an extra show, and I- I really appreciated it, so thanks for doing this.

0:02:46 Andrew: Well, you knew where to find me, so that,

0:02:47 Thomas: That's true, that's true, you can't really effectively hide from my request. I'm, so this is something that came up, I mean it's come up in a lot of places, but for me anyway, I kind of had a few interactions on Twitter where, oh, I remember what it was, I made a prediction that I actually kind of half maybe think is true, I'd love to get your opinion on that.

I think there's a tiny chance, maybe not tiny, I think there's a decent chance that if Trump loses, now setting aside a lot of things we're going to talk about today, but let's say Trump just, you know, unambiguously loses in November, I think he might just move out of the White House. Like a lot of people are talking about how he's going to claw his way in, he's gonna steal, he will refuse to leave, he'll barricade himself.

And my reaction has kind of been the opposite, that he does not care. He, he is only in it. I, this is one reason I would never read that book that just came out, is I don't personally, I don't feel like I'm missing information on Donald Trump and what makes Donald Trump tick.

0:03:46 Thomas: I think I've got it now. You know, I think I've had it for quite some time. Uh, he's a narcissist. He's a, he's a, uh, I think I mixed up. I was about to say pathological narcissist. I don't know if that's such a thing. He's a Narcissist.

0:03:58 Andrew: That too, if there is such a thing, it applies to Donald Trump, so

0:03:59 Thomas: Yeah. All he is interested in is him and being president, having the, what, what he thinks he gets out of that, which is some recognition stuff, which ultimately is all hollow because he can never get the people that he wants to respect him to respect them. They never will, anyone, it's that old quote, anyone who's, uh, dumb enough to like Trump is somebody that I don't think Trump cares that likes him, kind of thing. Um, and so I, he, he's not some zealot of a cause of Trumpism, of conservatism, of anything like that. He'll go along with a lot of stuff, but I, I, I actually kind of think, part of me thinks that if he loses and there's no, you know, no like Bush v. Gore, weird, ambiguous thing that we're going to talk about here, if it's just kind of unambiguous that he lost in November, he might just move back to New York or to Mar-a-Lago, and he'll just, he'll golf the rest of the time, and then he'll be gone and he won't. Okay.

0:04:52 Andrew: I, I think that is a not implausible scenario for, for a couple of reasons. And first, I don't know if the book you were talking about, if you were talking about Mary Trump or if you were talking about John Bolton, but I'm going to talk about John Bolton for a second, right? Because one of the things that, to me, actually was an instructive takeaway, was something I didn't quite expect, was Bolton said, we quoted it on OA, right, that Donald Trump made no decisions during during John Bolton's tenure as national security advisor that were not undertaken with his reelection prospects in mind. And and that surprised me, to be honest, because

0:05:03 Thomas: Either one. Yeah.

0:05:29 Thomas: Right. Really? Okay.

0:05:34 Andrew: Yet. No, no, no. Here's why it surprised me. Right. Because I expected Bolton to say he took no, he undertook no decision without thinking about how he could profit in Right, like, like that's what I would have expected, because that's consistent with Trump's behavior. Right, like, yeah, let's let Let's let Jared Kushner run the government. Let's make sure that everybody stays at Trump resorts. Let's talk to diplomats and make sure they put international stuff at Trump resorts. Those are the things that, from a public-facing perspective, seem to have guided the Trump presidency. The idea that he's focused on his reelection is staggeringly difficult for me to believe for somebody who's done such an amazingly incompetent job of it. Right. Like, if you or I were advising Donald Trump when the whole pandemic thing hit, you would have been like, "Oh, this is this beautiful," right?

0:06:27 Andrew: Right. Like the country rallies around the flag. And so all you have to do is like show strong leadership and come out and like dare Democrats to, you know, to criticize you. And they'll look like petty partisan bickering. You can squash this. You know, just follow the George W. Bush post 9-11 playbook and, you knows, bada bing, bata boom, we sail to reelection. Right. Like that was a real possibility. And like Trump is so beholden to QAnon conspiracy theorists and nut jobs and so surrounded by sycophants and idiots that like I mean, how could you possibly think having a 39 percent approval rating right now is like the best for your reelection strategy? Right.

0:07:12 Andrew: So so put all that together. It's possible. Like, I believe it. Right. Like I certainly think Bolton is is he has no reason to have misrepresented anything. He is plenty critical of Trump. And if he meant something else, he would have said it. So that means that, like, this is what Donald Trump thinks is his best shot at reelection. That seems kind of staggering to me.

0:07:38 Thomas: Oh, yeah. I mean, there's definitely incompetence. I don't think that he has any deep understanding of why he got elected beyond, you know, he has a good sense of what his base likes. I think he has a very, very keen sense of, particularly in rallies, what his base is going to like. But I think it's not, I don't know if there's a disagreement there. I think It's not a mystery that he's doing only things that will matter for his re-election, but also stuff that personally he would profit from. I mean, he is still doing that. Maybe Bolton didn't want to say that or didn't, I Don't know, but he's definitely doing both.

But what I was Going to say is he's also incredibly lazy. He wants, and he, and he thinks that he can bend reality to be what it, what he wants it to be. And so, put all those things together, and when it comes to COVID, while you or I might think, "Okay, the this, this could be, we could turn this around to a positive, we're gonna, you know, address it, we're gonna make it, it's an emergency," and try to be like a FDR, almost a wartime president, he tried to say that he was that. But that's,

0:07:56 Andrew: Yeah. Yeah. Right. Yeah, that's possible. Yeah. Yeah. Yeah.

0:08:43 Thomas: That's as much as he can muster, as muchas he can master, is to, to say, say like, "Well, I'm going to say on that." And also, if we pretend it doesn't exist, and if we, if we don't test, then I can just make it look like we did all that and whatever. Um, so I, I think that kind of marries all that together, but, um, so setting that prediction aside that, uh, sure.

0:09:02 Andrew: So. Oh, But can I, can I say, so, would I, would add to that that, like, right, Donald Trump, for all the talk of "you'll get so sick of winning" that, you know, whatever, like, Donald Trump has lost over and over again throughout his professional career, right? Like, and He, he absolutely knows when to like cut and run in a business context, right? Like, oh yeah, all right, well, the casino's not making any money, declare bankruptcy and get out, right? Uh, USFL, oh, all right, we, uh, we pressed our lawsuit, uh, we won one dollar, all right, well, that was a dumb strategy, time to bail, right? Like, it, it, one of the, I mean, sort of ironically, is this irony, I, I don't know. Anyway, like, for, for all of the talk of like, yeah,

0:09:20 Thomas: Yeah.

0:09:46 Thomas: After Alanis Morissette, I just don't know anymore. I actually couldn't tell you. Yeah.

0:09:48 Andrew: I don' even know anymore, man. You're being sarcastic. It the one aspect of Trump being a businessman is, yeah. I could I could certainly see like in October. Right. If if the polls are still where they are right now. Right? Like with Biden with a nine to 13 point lead. Right then I could see him checking out. Yeah, absolutely. And certainly in the lame duck session, I could see that being a battle between, you know, the the Bill Barr sort of evil sycophant types who are trying to cram through as much as possible. And Trump, who's like, oh, I don't give a shit anymore. Like, I'm out of here. So, yeah, that's a super long winded Andrew way of saying I agree with you.

0:10:33 Thomas: Wouldn't have it any other way.

0:10:35 Andrew: Yeah, you did invite me on the show.

0:10:36 Thomas: Yeah. I mean, what I think what I was trying to get out with that and something that I've never been able to put into the right words is the gulf between, you know, just the huge chasm between how much Trump supporters passionately care about Trump and what he's doing and working themselves up in this frenzy and how little he actually cares. I really do not think he cares whatsoever about most anything. I mean, occasionally you've seen like, you know, he really cares about getting the tax rates down or trade, maybe, like, or something, I don't know, certain things, but he just doesn't care.

And I think I was trying to illustrate that with, I think you would like the business examples, is a is a great example. I mean, we've seen that with time after time, he tries to put his name and on something and hawk it and it doesn't work and he just drops it and he doesn't get it, has no pride in the work. But anyway, so so that that brought up someone saying, like, you know, hey, look at this article and look at, you know, there are people saying such and such that they're worried that he's not going to give up power. He's going to stay in power. And I ultimately, I don't think I quite agree, but I but I think it's worth talking about.

And I wanted to have you on because we have talked a little bit about this on OA, which is this question of, like, can can Trump just refuse to leave? I mean, we've kind of answered it, but I wanted to maybe really take the chance to throw some scenarios at you, throw some of the theories and the worries people have at you and, you know, see if either, you know, you can talk us all off a ledge or we'll talk you onto a ledge. It'll be fun.

0:10:57 Andrew: Yeah. Yep. All right.

0:12:07 Thomas: You can come join us on this ledge. Edge. So let's talk first about, and and, uh, you know, admittedly, this is this is, uh, once again, another thing we're doing before the thing. But before we talk about what happens if in he loses or how he might hang on to power if he loses, I wanted to to sidebar. And And before that, we should talk about the range of things he might do to essentially cheat and technically win, but by cheating, which I think is kind of a different category because, whatever. So talking about voter suppression, uh, people are worried, how can he, uh, do this? And some theories, I'll throw them, uh, to you, and you can say as much or as little as you want, but messing with mail, you know, uh, cutting the post office, whatever it is, cutting vote by mail, doing whatever he can there. What are the dangers? What do you think?

0:12:07 Andrew: Well, bring it on.

0:12:36 Andrew: Yeah, I want to talk specifically about about mail. But but first, I want want to answer sort of the the preamble that you've described, because in terms of will there be large scale Republican voter suppression efforts? Yes. Right. I'm on the ledge with you on that. Right? We know that that's the case. We know that Republicans in internal documents, right, like I've read the Hofeller docs, right, have basically said our party is a white suburban suburban party. And as demographic trends continue, we will be a permanent minority starting now. So in order to make sure we don't become a political minority, we have to find ways to make sure that 46 percent of the vote can somehow get you elected. And they have been laying the infrastructure for that for a long, long time. Right. Like this is a fundamental difference between Democrats and Republicans. When Democrats got their asses kicked in the 1970s and 1980s, they erroneously, in my opinion, but like they went back and formed the Democratic Leadership Council and they were like, OK, well, three out of the last four Democratic nominees have been crushed in historic landslides.

0:13:15 Thomas: Yeah.

0:14:12 Andrew: And the only one who won, won after a Republican president who committed crimes that pre-Trump seemed unimaginable levels of crimes, right? Like, so maybe there's a, and like, the Democrats' approach was, well, maybe there is a problem with our party, right? Like, maybe we should change some of our policies to be more popular to the American electorate because it sure seems like we're getting wiped out. Republicans' approach was to say, okay, well, our policies are unpopular, xenophobic, racist, and out of touch with anybody who's not 65 and white. So how do we make sure that only the votes of people who are 65 and white count? So, yes, there will be voter suppression. And it is why, you know, we repeat the Mueller-Shearer dictum on the show all the time. Like, it's why it's critical to vote in numbers too big for them to manipulate.

0:14:21 Thomas: Yeah, exactly. Right, right.

0:15:02 Andrew: We know what that looks like, right? That looks like 2008 and 2012, right. It just means the Obama Democratic Coalition being mobilized enough to go to the polls. And 2012 is sufficient, right? Like enough time for liberals to be like by 2012, like, yeah, man, like Obama wasn't nearly as great as I thought he was going to be. Right. Like the Affordable Care Act was not what was promised in the 2008 campaign. Campaign. You know, he's got like a ton of this drone use, right? Like he's getting killed on Rachel Maddow every night. Like there's a lot of stuff not to like about Obama. But you know what? Wait, like we took stock of the situation and we're like, well, we could repudiate that and vote for the billionaire hedge fund guy. And Democrats were like, no, maybe we should stick with what we got.

0:15:02 Thomas: I

0:15:50 Andrew: Right. And that's all you need to do in 2020 is mobilize that coalition, get Joe Biden out there and, you know, win 300 plus electoral votes.

0:16:01 Thomas: Don't know if we should spend too much time on this, but I don'T think it's maybe the best idea to think in terms of the Obama coalition. I think that's kind of gone. I think the demographic shift and how demographically things have polarized, it's just going to be a different, slightly different, Maybe some overlap, obviously, because it's not as though the entire coalition has changed sides or something. But like demographically, there's been a massive shift in white voters.

0:16:31 Andrew: Yes, agree.

0:16:33 Thomas: OK, but you're just saying that amount of that, those kind of numbers. Gotcha.

0:16:36 Andrew: Right. I'm saying, yeah, those those kinds of numbers which we know are doable are sufficient. So when you ask about voter suppression techniques, everything you read about that is almost certainly going to be the case, right? That is, in Southern states, poll watchers harassing voters of color. That means in some cases dirty trickery and throwing out votes. Again, not, not on a scale big enough to, to overcome, you know, a multiple percentage point swing, but on a, a scale big enough to to swing a very, very close race, right, um,

0:16:43 Thomas: Side note there, I've seen some amount of work that suggests that voter suppression doesn't actually work because of a backlash effect. So it's interesting. I mean, if you want a cause for optimism, I can't remember if it's 538 or who it is, but they've looked at the numbers and oftentimes it kind of evens out. Like, sure, obviously they suppress some votes, but also people get so outraged about that. And we've seen that in some of these elections under COVID with the courts just being horrendous. People will be so upset by having their rights deprived that they will line up around the block and try to get it done. And and statistically, it may even out doesn't mean it's OK or anything. I'm just saying, like, if you're looking for optimism out there, statistically speaking, it may have kind of a backlash effect if you try to suppress votes.

0:17:17 Andrew: Yeah. Yep.

0:18:00 Andrew: I That's, I, I haven't seen that research, but, uh, that, A, like I'm glad to have optimism, and B, right, like, everything I have seen that is, um, quantitative, uh, poli sci research, uh, indicates that that effect is, and I'm using this as a precise statistical term, marginal, right? Like, and again, I don't mean that to dismiss it. I mean, like it has an effect at the margins, but not in, You know, dispositive reasons. So, yeah, so all of that as preliminary, like, yes, it is important to stay mobilized. Yes, it is important to vote. It is important to register people to vote. It is important, like, not to get demoralized, uh, because remember that two things are coming in the next couple of months.

Donald Trump has already raised a billion dollars, okay, for his re-election campaign and Donald Trump has zero interest in persuading you or I to vote for Donald Trump, right? Like, it, everybody's opinion about Donald Tump is already made up. All he's going to, like, literally, this is, this is going to be, be a fascinating and terrifying political season for poli sci students, and I'd love if we were like disembodied historical voices watching this, right? Like, I guess voices, why, but anyway, like, if it, if our country didn't hang on this result, you're going to see a billion dollars worth of negative campaign ads, um, and you are going to see those negative campaign ads amplified by Fox News and right wing media and amplified through full on right wing Russian troll farms that are amplifying those voices.

0:18:30 Thomas: Hmm. Right. Yeah.

0:19:56 Andrew: Like we have documented evidence of the kinds of groups that were put together in 2016 that had a much bigger reach than anybody anticipated. Right. The Senate Intelligence Committee report documented, like, the hundreds of thousands of people who went on to the, like, Blacks for Trump page. I'm probably getting the name wrong, but, like, right, and it was 100, like, we, like, the Republican Senate Intelligence Committee was like, oh, yeah, well, Blacks for Trump was run out of a troll farm in Kiev, in, uh, St. Petersburg, um, so, uh, yeah, like, that's coming, uh, and, like, that will be demoralizing, right, like, there's plenty of bad stuff that, like, like, you can say about Joe Biden to which, you know, us as Democrats are going to have to be like, yep, that's the case.

0:20:48 Andrew: Uh, and you need to not get demoralized by that. You need to not participate by sharing out Fox news and, you Know, garbage sites that are designed to bring what should be a blowout election down to the margins so that they can steal it. It

0:21:05 Thomas: Yeah. Can you tell us about the poll watcher stuff? What's what's the that should be illegal? But but is it a state by state thing? How how does that exist?

0:21:16 Andrew: Is going to be a recurring theme through, throughout this episode, and that is, um, in general the federal courts are reluctant to infringe upon how states administer their elections. If you think that seems really, really stupid, uh, congratulations, like, you're right, but when the, the Voting Rights Act, it made it very, very clear that unless you have specific statutory guidance passed by the Congress and signed into law by the President, which needs to be on the agenda for 2021, that you are not going to get relief from the federal courts.

0:22:05 Andrew: And look, in a lot of these. Right. It's it follows sort of the rule of, you know, it's better to ask forgiveness than permission. Right? Like if if local. So let me give you a classic dirty trick.

0:22:11 Thomas: Yeah. Because Like, yeah, what's Even the relief if some people go out and, unmark, you know, pretend to be some sort of poll watchers, intimidate people, you The only relief is maybe they get punished later somehow, That doesn't Fix, they can't change the results, yeah.

0:22:23 Andrew: Yeah. Right, yeah. It is not a do over for the election. That is exactly right. Right there. The number of times in history there, there have been like two cases in state elections. One was in Pennsylvania. I don't know where the other one was in which a court has actually required a do over election. Yeah. But the fact that I know about those cases tells you that they are the edge case. Right. Like you, you, You don't get a do-over. You certainly don't Get a doover because right. Right. The conditions were bad. And as we saw, like we saw the preview with this during the primaries, right, like in states that required in-person voting, you know, back in March, April and May, that those tactics will continue. And I'm using that as a segue to to sort of talk about the voting by mail stuff.

0:22:31 Thomas: Is

0:23:19 Andrew: But but yeah, like the Let me give you an example of a dirty tactic that both political parties use so that, you know, I can I can try and steal me like this Is not, the steel manning, Republicans, is is is generally not my job and is not going to happen on the show. But, but my best effort here is, in neighborhoods that are gerrymandered such that they are predominantly one party or the other, it is very, very common to target via mail people who are members of the, the opposite party with exhortations to get out and vote that contain the wrong date, or that contain a different polling place or stuff like that, right, um, so and, and there will be examples, I'm sure of it, on both sides in this election, right, like in, you know, the suburbs of Philadelphia, uh, you know, there'll be a

0:23:30 Thomas: That

0:24:18 Andrew: Mailer to, you know, these predominantly white neighborhoods saying, uh, you know, that, oh, you're polling places here when it's not, uh, and then in inner city Philadelphia the same thing, right? So, um, that kind of trickery has gone on for a very, very long time. Uh, both parties do it, but Um, it And And It is, right, but But again, it's, it's, what's the practical remedy, right, you Don't, you don't get a do-over for the election for people you persuade not to vote. So, so all that stuff is going to happen. And all of that is, you know, the underlying theme of, stay motivated, go out, vote, vote numbers too big for them to manipulate. Now, vote by mail, this is actually something that, that you should feel pretty good about, right? I have exhaustively gone through where every state stands on voting by mail, and I will tell you right now, um, there are four states, uh, that are really trying to crack down on voting by mail, um, and the only one that matters, matters at the, at, again,

0:24:38 Thomas: Illegal And they just do It or Okay Yeah Right

0:25:32 Andrew: At the margin, like is not likely to be a tipping point state. And that is Texas, right? So there are models right now that have Texas competitive. Uh, there, there even a couple of polls that I think have Biden ahead there. I believe Texas is a potential battleground state. And so as a result, right, Texas is one of only four states that have explicitly rejected relaxing the standards to vote by mail due to COVID-19, right? Right. The other three are Missouri, Mississippi and Tennessee. Right. And I don't know, maybe like I've been to I've been to 270 to win in a while, but like maybe.

0:25:38 Thomas: We're Not getting those, yeah.

0:26:14 Andrew: Yeah. Right. Like Missouri is going to be the closest to that. So I don'T know. You want to add Missouri to the list as well? Maybe. But like Missouri doesn't have an influence, you know, an influx of young Hispanic voters. So I'm guessing it's probably a tougher one to turn. Um, outside of those four states, right? The other 46 states have some version of that, that makes it easier to vote by mail. And this covers by definition, all of the battleground states. So let me break them down as, as best as I can for you. Seven states are vote by by mail entirely or almost entirely. Right. Only problem is most of those states, all of those states are kind of safely one way or the other.

0:26:14 Thomas: Yeah.

0:27:08 Andrew: Right? So California, Colorado, Hawaii, Montana, Oregon, Utah, and Washington. Now, again, good to know that nothing is going to interfere with with Joe Biden getting 53 electoral votes out of California. Right. So, you know, that's a good thing.

0:27:24 Thomas: Well And also, side note, again, we are talking on, uh, politically, and about election outcomes. Of course, morally, every state in a fucking Pandemic should be allowing everybody to vote by mail easily, obviously.

0:27:33 Andrew: Yeah. Yes. And so if you're doing the math right, we we we talked about four states are actively fighting against voting by mail. Seven are all are almost entirely all by mail, right? That leaves thirty nine states in the middle, which includes all the battleground states. And of those, they break heavily in favor of states that have gone to, I should say, as a legal background. And again, I'm oversimplifying because state statutes are written differently. But essentially, in those 39 states, you may have in-person voting. Voting by mail will not be automatic, as they are in the seven states that we talked about. You may not get the ballot sent to you by mail by default, but you will be able to request an absentee ballot.

0:27:40 Thomas: Yep.

0:28:30 Andrew: And typically, if you think about like the way absentees ballots used to work, right, it used to be that you had an obligation to show up at the polling place unless you had a good excuse. Right. Like I'm in the military, right? Like I am. I'm stationed at a base overseas, so I can't get to my polling place. And then you would get an absentee ballot and you would be able to vote by mail when you had that excuse. Right. So of the thirty nine states that are in this middle, twenty seven of them have now said that you don't have to have a justification to vote absenteed ballot. In other words, voting by mail is presumptively just as good as voting in person. And that includes basically all of the swing slash toss up states. Right. It includes Arizona, Georgia, Iowa, Michigan, North Carolina, Nevada, Pennsylvania, and Wisconsin.

0:28:45 Thomas: Yeah.

0:29:36 Andrew: Right, so pretty much all of them. And those, and again, not saying that there aren't going to be efforts to try and prevent you from doing so, but the state laws say a mail-in vote is as good as an in-person vote. Again, the way Republicans are going to tweak that is by not mailing it out to you, by removing people from the voter roll, Right, you know, all the standard tactics, and we have to, to be vigilant, we have to fight, but we can at least fight against that, right? Like, what you can't fight against is when somebody disqualifies your vote, because, you, they're a government bureaucrat, they do so in a non-transparent way, right, but these states are not going to do that. Then about a third of the states, 12 of them, require you to provide a justification for your absentee ballot, but they have enacted some kind of legislation or some kind of rulemaking that says fear of COVID-19 is a valid justification for Voting absentees.

0:30:00 Thomas: Yeah.

0:30:37 Thomas: Because Obviously it is, what

0:30:39 Andrew: Because obviously it is, right? And again, these are mostly states that are not play. The two that come to mind in this group are New Hampshire and South Carolina, right? So put all of that together. And again, subject to the overarching rule, like, I'm feeling reasonably good that you are not going to have a wave of states refusing or throwing out absentee ballots, voting by mail. I think we're going to have largely a vote by mail election. So that, and the infrastructure supports that.

0:31:21 Thomas: Did I see So you Mentioned Texas, I thought I saw there was some sort of court decision recently that, that didn't allow COVID as an excuse, Or something, what, and The

0:31:28 Andrew: It. So that is the Fifth Circuit and it involves a challenge in Texas and it fits in exactly the pattern that I've described, right, which is to say that tremendous deference is given to state and local officials for how to administer their elections. So this was the Texas Democratic Party. Gilberto Hinojosa is the lead named plaintiff versus Greg Abbott, Ruth Hughes, Ken Paxton. So if you saw a Texas Democratic party or Hinojo versus Abbott by the Fifth Circuit, that's the case that you're thinking of. And so let me explain the structure in that case. In that case, what happened was the Democratic Party went to Greg Abbott and said, hey, man, you've got to follow the lead of every other state in the union, but you in Mississippi and allow COVID-19 as a valid excuse for voting absentee.

0:32:26 Andrew: And Greg Abbott was like, yeah, now I'd rather not. Right. And so then they sued under the Equal Protection Clause to force the governor to to to permit voting by mail with COVID-19 as the excuse. And the district court granted the injunction. And then the Fifth Circuit overturned that injunction, right? Right. So the case is now back at the district court level, will be litigated on the merits. And again, it's not hard to predict what's going to happen there. Right. Like the the Texas Democratic Party is going to win at the District Court level. And then the Fifth Circuit is going in enjoin that decision from going into into effect and reverse it. And and again, look like the Supreme Court won't grant cert. There won't be a reason to. Right? Right.

0:33:12 Thomas: Supreme Court Won't grant cert, probably, yeah. Is

0:33:16 Andrew: And again, equal protection argument is a good argument, right? Obviously, I am with the TDP here. I would like to see that

0:33:25 Thomas: That the Idea That Like people are more at risk, maybe elderly or whatever, like, it, it's, it's unfairly depriving one group of people, uh, from safely voting, is that kind of Okay But It's, I'm glad you, you broke this down, because I guess I hadn't really fully thought this through, but it's not as though, um, if people are very scared of something bad happening, it's not as though the Supreme Court is going to come down and say, hey, states, you can't even allow blah blah blah, it's that the, the governor, yeah, what is, the governor of Texas was trying to, was not doing something, and then Democrats said, no, you need to do this thing, and then the Fifth Circuit, because they suck, is like, nah, sorry, you can't make the

0:33:34 Andrew: Is exactly right.

0:34:04 Andrew: Yeah.

0:34:05 Thomas: Governor do Do Something, right.

0:34:05 Andrew: And and again, I want to say this as carefully as possible. If we lived in an era in which I had confidence that the Fifth Circuit was not full of political hacks that know exactly what their decision does. We're not, because we covered the June Medical Services versus McGee case, in which they had binding Supreme Court precedent, but decided to go the other way anyway. Right. Like, so Fifth Circuit, not exactly where I would go for fair and impartial legal analysis in alternate universe in which there are not staffed by Trump loving judges, judges, argument isn't crazy, right? Like, the plaintiffs concede that the Equal Protection Clause review is rational basis review, right, like, that's the fogged mirror test.

And they said, look, like, you know, you can't even fog a mirror with, you know, when somebody's wheezing because of COVID-19, probably mixing my metaphors there, but right, they said we meet rational basis review. And the Fifth Circuit was like, no, you really don't. We're going to defer. And And again, I want to be clear how narrow I'm saying this. Like, that's not a crazy argument in the abstract, right? We shouldn't pretend that this is anything other than a political decision. It obviously is. But the argument is not, you know, manufactured out of whole cloth. The argument is, yeah, we defer to how states

0:34:59 Thomas: Right. Yeah.

0:35:28 Andrew: Decide to run elections. If you don't want to have Republicans disenfranchising people, then don't vote for Republicans. Now, you know, we could we could go into the remedy.

0:35:37 Thomas: We've gone down that that rabbit hole we got it for time purposes, but But this is encouraging, though, because, it as you've covered, you know, Texas is maybe the most, um, I don't know, swingy of the states that were, where it might make a difference, and that that does suck, but it's not as though there are a bunch of like, uh, swing states or blue, safely blue states that are going to be thrown to Trump because of some massive mail-in voting thing that they're not going to allow. That's not likely.

0:35:38 Andrew: Yeah, yeah, yeah. Right. Yeah.

0:36:06 Thomas: Okay, cool. And also a final note on this for two seconds. This is all under the theory that stopping mail-In voting helps Trump, which is actually not even clear.

0:36:05 Andrew: Right, that's right.

0:36:17 Thomas: It's entirely possible that stopping male-in voting and discouraging male-in-voting, you know, or whatever, however you want to put it, um, would help Democrats, uh, because Republicans are older, that's

0:36:27 Andrew: It is, okay, no, it's so, so two things with respect to that. The Texas, it provides me opportunity to talk a little bit more about the Fifth Circuit opinion. One of the arguments raised on the Equal Protection Challenge is that Texas, of course, has a – has an exception to the mail-in requirement if you're 65 or older. So, yeah.

0:36:55 Thomas: Convenient, yeah.

0:36:56 Andrew: Yeah, no, it is. Right. It's almost as if they understand, understand. Uh But, again, look, like, you know, I could, you could make a, a, you could, you can steal me in the argument and say, uh, you had some idea that mail-in voting was a bad idea, I could see how you would want to have an exception for old people, right? Um, now, where you come up with the idea that male in voting is a bad ideia, right, I, you know, I can't even steal man an excuse on on that, yeah.

0:37:21 Thomas: Q anon I don't know, Trump just deciding it, yeah, so Um, let's see, is there any other way, now we're still just talking about voter suppression, anything else you're worried about there? Um, when it comes to poll watchers, is the, is the only thing to say just, you know, if you're out there and you're trying to vote, do not be intimidated by these clowns or like what, what is the thing, I don't listen to them if they tell you like, oh, you're actually not, they try to do all these tricks to like turn people away, what's answer there?

0:37:23 Andrew: I I don't know, yep.

0:37:41 Andrew: Turn turn Turn on your camera, turn on your cell phone, uh, turn on the video, record it, go out onto social media, uh, promote it. Um, if you are fortunate enough, um, and and we always, uh, highlight these projects as we get closer to to election time, um, the, uh, the Democratic Party will host voter suppression clinics, particularly if you're a law student.

I know we did this during the 2018 midterms, where lawyers and law students would get training to go out and would get contact information for state level precinct chairs to be able to say, like, hey, this is a, a, this is a violation, this is out there, so, um, there are real things you can do to help in your community, and if you are somebody who is being marginalized or pushed around, like, you know, use social media to your advantage, like we're seeing, that's been hugely, I don't want to say successful, because, you know, Portland is Portland, but, like, one of the things that makes Portland different this time is the vivid graphic images that are shared all over social media, so, uh, do that, turn, turn the cameras on them.

0:37:49 Thomas: Oh, Yeah, all

0:39:01 Andrew: Don't, you know, let them, let them give whatever their spiel is, but take it, record it, share it far and wide.

0:39:16 Thomas: Right, that's it for the first episode with Andrew. Tune in next time to find out what Trump might do to stay in office and what we can do and what seems realistic. It's either, like I've said, it's either going to be Andrew talking us off a ledge or us talking Andrew onto a ledge, but that'll be available again on Patreon a little early, patreon.com slash series pod. Everybody else, we'll see you next week.

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