OA425: 'The Election That Could Break America' ???

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 425, you know what that means, next episode, new intro quotes, can't wait, I think you'll like them, anyway, I'm Thomas, that's Andrew, how you doing Andrew?

0:01:30 Andrew: Again, within the parameters of the universe. Fantastic. Thomas, how are you?

0:01:33 Thomas: Hmm, I don't think that restricts it very much, the parameters of the universe? Anyway, yeah, it's the same as always, but we've got a lot to cover today, I am very interested in your take on this Atlantic story, story, um, so I'm, I'm intrigued, but before we do that, I know there's a couple little items you want to mention.

0:01:57 Andrew: Yeah, so a bunch of things we didn't get to cover last week. The anarchist jurisdiction stuff is all nonsense. You have to take my word for that. But our very own Morgan Stringer did some amazing research that's wound up on the cutting room floor. And maybe we'll come back and talk about that in a future episode, um, also I, I, I'm going to include in the show notes, um, because I think it's really useful in a number of ways, but, um, there, uh, has been a, uh, a lawsuit filed, um, an individual, uh, lawsuit, uh, filed against Kyle Rittenhouse, against the Boogaloo Boys, and against Facebook and some other groups in connection with the Kenosha shooting.

0:02:45 Andrew: This is, I think, really, really instructive. And we may break it down on the show. The primary allegation against Facebook is an argument in negligence, right? And so then the question is whether you You have a duty of care when it's foreseeable that your, in this case, your omission, that is not shutting down people talking about in and inflicting violence in defense of property, may cause harm to someone. It's also a really well-written lawsuit. It says things like, we have an army. We do not need people playing army, particularly when their targets are engaged in the expression of fundamental rights.

0:03:33 Andrew: So it's a really good timeline of everything that happened. And again, it's it's A complaint, but but Good, good timeline if you're sort of trying to piece together all of the bits of evidence. And I think the question, right, we've talked about how is our legal system prepared with respect to dealing with technology issues, this is a question that major social media networks are going to have to face in the future, right? Right. Like, are they doing something that, are they engaged in an omission where there is a positive act that that could stop extreme harm? And are there courts that are willing to say that that's negligence? Right. Like, it's it's an, it's interesting question.

0:03:40 Thomas: No.

0:04:26 Andrew: And, you know, like ISPs and content providers have, you know, they've, they've typically kind of use the we're like a library or we're like a bookstore defense. Right. And and, Facebook is not like a bookstore. So super interesting case. Don't have time to break it down on this episode. But but, you Know, as homework, I assign it to our listeners to read.

0:04:39 Thomas: Oh. Yeah, get on it everybody, I don't have to do it, right? Oh. Thank god.

0:04:51 Andrew: No. Yeah, you're good.

0:04:52 Thomas: Okay, yeah, get on everybody, okay.

0:04:57 Clip: The law breaking down

0:05:04 Thomas: Uh, so main segment, um, this Atlantic story, The Electoral Apocalypse, uh, I think it's actually called The Election That Might Break America, right?

0:05:14 Andrew: Yeah. What if what if Trump refuses to concede? So, so me say a couple of things as kind of a top line issue. I guess the first thing I want to say is I have treated a lot of versions of this story as not a legal question. Right. Look, here's a thing that I'm aware of that, you know, Trump just doubled down on again. Right. In 2016, as people were talking about, well, Trump is obviously going to lose. But, you know, are his protesters going to engage in, you know, mass destruction of private property? And are they going to make nuisances of themselves? Right. Right. Donald Trump went on the campaign trail and said, I just want to set things straight.

0:05:18 Thomas: Yeah.

0:06:05 Andrew: I am prepared to accept the results of the election. And then he smiled that little I'm trolling the libs smirk of his and said, if I win. Right. And his, you know, dipshit supporters ate that up. And and this strongly influences. Right. My refusal to engage with this question. Right. Because I think on some level, it's part of what Trump supporters want us to do. Right. They're they're they're trying to own the libs. So Trump, Trump just did an interview in which he was asked straightforwardly by a reporter, win, lose, or draw, in this election, will you commit here today for a peaceful transfer of power after the election? And Trump's response was, well, we're gonna have to see what happens, right? So this is how Donald Trump talks, and I don't want to get caught up in

0:06:59 Thomas: Know, well, you know what sucks about this is sometimes if Biden were asked this question, I actually kind of would want that answer, weirdly, you know, because, like, Trump is going to cheat, and so I almost would want Biden to be like, like, well, we're going to make sure it was a fair election before I just like concede, you know? But like, that's only because Trump is doing what he's doing. So then is it a double standard of like, well I'd want my guy to answer them that way, but then their guy can't answer that way. I don't know.

0:07:16 Andrew: Yeah. Yeah.

0:07:28 Andrew: Yeah. No, I see that. I think that's a, I think that's fair point. Right. So much of this is just engaging with bad faith actors. And it's why I've just punted on the question. Right?

And I've said, look, if, if Trump refuses to accept the results of the election, then, you know, that is a mobilize the guys with guns to remove somebody who's illegally squatting in the White House, with that being said, this story, right, and we talked on, on Friday, about how Barton Gellman, three-time winner of the Pulitzer Prize, his story is based on legitimate academic research that I am going to discuss, there is a real legal dimension, and as, as one of the authors has, has stated, one of the ways to combat this is by talking about it out in the open, among liberal circles, right, among our listenership, so it's why I think it is important for us to discuss, and for me to say to everybody who said, you know, well, what if Trump just doesn't accept the results of the, the election, for me to say, maybe I should, maybe I should have, uh, engaged with this question earlier, and I'm sorry, and so I do owe you that discussion, I'm going to give it to you, I, I do want to cover very quickly some things that I have seen that remain in the conspiracy theory camp, just so that everybody is fully informed, right.

0:08:55 Thomas: Just so we can do a future episode on how they're actually happening and they're not a conspiracy. Okay. No, that's fine. I

0:08:56 Andrew: So So, yeah, that's fine. Uh, so the first that I see circulating a lot, uh, and it is, um, often in replies to the Atlantic's Twitter account and other accounts that have shared up the story is right. Trump is going to steal the election with PEDS, P-E-A-D-S, Presidential Emergency Action Documents. Um, no, no he is not.

0:09:25 Thomas: Don't even know what that is.

0:09:27 Andrew: Yeah, I'm about to explain what it is. I had to learn what it is. OA 370 can Trump cancel the election? It still applies, right? Other than we're going to talk about a very narrow thing here. It is worth talking about. It is a real story. There is a piece, as I said last Friday, that I think Gelman is missing. But this is a true story. It deserves real discussion. That being said, everything we've said about how Trump can't put off the election, that's still 100% clear, right? Clearer than Kushner.

0:09:28 Thomas: Yeah. Yeah.

0:10:02 Andrew: Um, what are PEDs? PEDS are secret presidential emergency action documents, um, and they are not declassified. The way in which we know about them is because we have seen otherwise declassify documents that mention them, including page page 625 of the 2017 appropriations bill. So this is a weird story and I'm going to share it with you. The appropriations Bill is the bill that funds the government. Right. And so the Office of Legal counsel asked for and received $8 million in fiscal year 2017.

0:10:48 Andrew: That was for 26 attorneys, 32 total employees working at OLC. And in explaining why they needed $8 billion, OLC said, "Well, look, we're responding to a ton of FOIA requests regarding PEDs." And, uh, and here's what they said, so I'm quoting directly from page 625 of the appropriations bill, quote, "Beginning in fiscal year 2012," that's Barack Obama, "OLC has been," if this says "was" been working on but I think they mean "has been," "working on and updating a series of PEDs first prepared in 1989," that is President George H.W. Bush, "and updated pursuant to a presidential directive in 2008." That is the waning days of the George W.

0:11:37 Andrew: Bush administration. "PEDs are pre-coordinated legal documents designed to implement a presidential decision or transmit a presidential request when an emergency disrupts normal governmental or legislative processes. A PED may take the form of a proclamation, executive order, or message to Congress. The PEDE portfolio," that's capital P on both of those, as "as an entirety is classified secret. However, after signature by the president, individual PEDEs are unclassified. In coordination with the Office of Counsel to the President and the National Security Council staff, and under presidential direction, OLC has begun a legal review of PEDs to ensure that each of the approximately 56 documents reflects current law and adequately addresses the emergencies for which it was prepared."

0:12:23 Andrew: "OLC's detailed PED review involves original legal research, review of other agencies' legal work, and a substantial amount of legal writing and editing." Right. So that's the discussion, right? And then they also talk about responding to FOIA requests. I'm not going to read that out loud. But, but, hey, we're doing a lot of work on these PEDs and that's why we need the money. What that paragraph tells you is, again, this is not a Trump invention, right? This is a thing that is bipartisan, that all presidents have used to set up emergency contingencies in the event of, say, a terrorist attack on the United States that disrupts vital infrastructure. Structure. Is it terrifying that Donald Trump has the levers? Of course it is, right? We have a criminally insane game show host as president, and the kinds of things he wants to do via executive order are terrifying and scary because he's terrifying and scary.

0:13:13 Andrew: But they do not extend to canceling the election or announcing that he's going to continue indefinitely in office. They do not supersede the analysis we gave you in 08 370. You don't have to be worried about super secret memos that are classified secret that that are going to cancel the election. OK, that again, that's not to say that like if we get a chance to read these, I'm I'm Sure the stuff. Trump has written is terrible because everything Trump does is terrible, but it's not end of the election that's not what this is. OK, so that's the first thing that's not. The second thing is our our buddy A.G. tweeted out this article and said, isn't this covered by the Supreme Court's faithless elector decision? I want you to put a pin in that.

0:14:02 Thomas: Sorry. Isn't what covered?

0:14:04 Andrew: Isn't isn't the scenario described in The Atlantic already covered and prohibited by the supreme court's faitheless elector decision, which was called Chiafalo versus Washington. And the answer to that is no, this does not, that decision from the last term said that states can implement faithless elector laws and can in fact change a, if a faithless elector is, you know, supposed to be going in and voting for Biden and they vote for someone else instead, that they can invalidate that vote and replace him with somebody who votes for Biden. So that's good thing. More states need to, in the next 40 days, get faithless elector laws up and running because although 33 states have them, only 14 and the District of Columbia provide for replacement mechanisms, right?

0:14:04 Thomas: Remind Me. Right.

0:14:59 Andrew: Right. The others will say, like, oh, well, we'll we'll fine you if you're a faithless elector, which is totally stupid. And a bunch of them have no laws, no penalty, no cancellation of the invalid electoral vote. So I don't know why you have those laws. And yes, many of those states with no laws. No penalty, No cancellation are precisely the kind of toss up states we're worried about here. Pennsylvania, Florida, Georgia, New Mexico, Ohio, South Carolina, Texas, Virginia and Wisconsin. Even if the Supreme Court decision applied, there are no laws in those states to which it would apply. And it doesn't apply because we're talking about different slates of electors, which is something that we'll get to. So, no, Chiafalo doesn't does not help you. So when we say here, let me describe what I'm talking about.

0:15:47 Andrew: And and and and I want to talk about not just the Atlantic piece, which, again, written by a Pulitzer Prize-winning journalist, Barton Gellman, draws upon research from legal scholars. Neil H. Buchanan, who is a law professor at the University of Florida, he wrote two pieces for Justia back in June, one on June 24th that was called Trump's Upcoming Refusal to to leave office, the good news. And one on June 25th, which was Trump's upcoming refusal to leave office, The Very Bad News. Was drawing upon research by Lawrence Douglas at the University of Amherst, who wrote a book called Will He Go? Trump and the Looming Election Meltdown in 2020.

0:16:34 Andrew: That was, in addition to the book, which I have read and which I recommend, he was interviewed on Vox. I'll include that link in the show notes. And both of them are relying on underlying research by a law professor named Ed Foley about a phenomenon called blue shifting. Okay. He's a law Professor at Ohio state. So we're going to talk about all of that, but let me set up kind of the background. And here, first I want to quote from, from Buchanan. Because I think this covers as well as anyone can my feelings. Here's what Buchanan says. Some writers, maybe even including me, and I would add parenthetically, definitely including me might have said at one point or another that Trump will simply refuse to leave office or words to that effect.

0:17:30 Andrew: But that does not mean we are imagining a situation in which Trump stews in the West Wing until January 20th and then simply announces that he is not going anywhere. And that's really the kind of scenario that was presented to me that I sort of dismissed, right? Buchanan continues, What we know is that Trump is willing to fire prosecutors, mobilize military troops, abuse the court, and claim that everything that happens to him is corrupt. Indeed, one of the things that Trump and his supporters have been doing for years now is to co-opt the word coup as a preemptive move to drain it of all meaning. They now use that word to describe any situation in which Trump is opposed via legal means, so the Muller report was an attempted coup, Trump's impeachment an attempted coup, and and pretty much everything is a plot to take away Trump's landslide victory in 2016 Yeah.

0:17:44 Thomas: Yeah. Yeah.

0:18:19 Thomas: By the deep state A Deep state coup, yep.

0:18:22 Andrew: This is the sentence, coup in their mind means Trump not being president anymore. So, Trump has already degraded the language by using against his enemies the very word that best describes Ives, what he is doing. And when I read that, I was taken aback because think about fake news, right? Fake news was coined to describe what Trump does and now is pretty much entirely used by the right wing to dismiss actual news.

0:18:29 Thomas: Yeah.

0:18:41 Thomas: Everything Else, yeah.

0:18:51 Andrew: Adds, and this, I'm going to repeat this twice on the show because it's really, really important. It's why we're doing it. The only real way to avoid the nightmare scenario is to make sure we don't enter into this scenario. And the best way to do that is to ensure that he loses decisively in November. That's the best guarantee. That's The Best Way We Can Secure the Future of a Healthy Constitutional Democracy.

0:19:08 Thomas: Yep. Fun. On it's not by not voting and sending a message, that's not gonna Oh.

0:19:20 Andrew: No. No.

0:19:20 Thomas: Okay, so they won't get my message if I don't vote. Yeah.

0:19:24 Andrew: Correct. Correct. It kind of adds, it's very important that Trump have as few avenues as possible to steal the election. You can't just win. You have to win big. That's a sad commentary on where we are today. But it's true nonetheless. Right. So let's talk about what the scenario is. I'm going to link here. I am a little surprised that the Atlantic piece does not link the the Ed Foley Law Review article. Um, you should read it.

Uh, it will make you sad because it was written in 2019. And so it assumes that the Democratic nominee would be Liz Warren. So it's talking about like Pennsylvania certifies its vote for Warren. And I was just like, I'm so sad. Um, that being said, here's what it says. Um, it talks about the phenomenon of of blue shifting, and I'm gonna quote liberally from Foley here that is the canvas after election night that tallies late reporting precincts, unprocessed absentee votes, and provisional ballots cast by voters who whose eligibility needed to be confirmed. Notes, for most of american American history, this overtime count produced no predictable partisan effect in any given election year. Some states shifted red after the canvas after election day and others shifted blue, but they were seldom large enough to matter consistently in any one direction. Things began to change about 20 years ago. Overtime count got bigger and it trended more and more blue. And as this was being studied, they could not explain why the shift favors. So, some hypotheses

0:20:57 Andrew: Were, right, urban returns take longer to process. Most provisional ballots are counted, are cast by young, low income or mobile voters who lean Democratic. But it's real. So in 2012, Obama strengthened his margins overnight in swing states. Um, the blue shift completely, and you may remember because I was in Australia when when we did this, um, election night it looked like Martha McSally won in Arizona. Um, and then the blue shift was 71,000 votes for

0:20:57 Thomas: That's A lot

0:21:32 Andrew: The Democrat Kristin Cinema, that's right, and it went from from plus 15,000 to Martha McSally to minus 55,000 in favor of Kyrsten Sinema overnight.

0:21:32 Thomas: Of votes It's Probably all the boxes of fake ballots the Democrats hold On to and then release, but I I think this is the origin or sort of the the oranges of that theory, isn't It, yeah.

0:21:47 Andrew: Right. It is. And and illustrative. Trump didn't say anything about Arizona, but Trump did talk about Florida. And what happened in Florida was polls showed consistent narrow leads for Democrat Andrew Gillum over Republican Ron DeSantis. They showed mixed results in the Senate race, right, with Rick Scott versus incumbent Bill Nelson. But in any event, on election night, DeSantis was up by 50,000 votes. That's still less than 1% in Florida. That fell to 30,000 after the blue shift. Rick Scott was up by 30,000, and that fell to 10,000. That is less than one-eighth of 1%. That's a teeny tiny minority. So Democrats gained about 20,000 votes overnight. So Florida took about a week to confirm its results.

0:22:02 Thomas: Wow.

0:22:49 Andrew: And on November 12th, Trump took to Twitter, because of course he did, and said, the Florida election should be called in favor of Rick Scott and Ron DeSantis on the large numbers of new ballots that showed up out of nowhere and many ballots are missing or forged. An honest vote count is no longer possible. Ballots massively infected must go with election night. Yeah. Slightly.

0:23:08 Thomas: Infected, huh. It's A ballot Virus. We

0:23:11 Andrew: Yes. Slight, slightly prescient there. So you see the scenario now, right. Oh, by the way, like in talking about blue shift, yes, it was there for for Democrats in 2018, 18. Um, I I'm not confident that it will, that the that the shift will be blue in Florida in 2020, given the large number of valid, presumptively valid mail-in ballots from uh older people in state of Florida, right. Like, um, but but nevertheless, right, the fact that the the counts will be different after election day from mail-on ballot, it's going to be exploded by a by an order of magnitude, right, given given Covet 19, right. So here's the scenario, right, narrow election on election night, Trump leads with in-person counts, but we know Democrats are going to make that up, right, like we, like the Steve Kornacki gets on and says zero percent of the votes have been counted in Philadelphia and Trump has a 6,000 vote lead in Pennsylvania, that means Democrats have won Pennsylvania and they probably won it by five points. Right. But Trump says, stop counting now and certify that I'm the winner.

0:24:26 Thomas: Went through a lot of these scenarios on SIO, right? Dred.

0:24:29 Andrew: The. Yeah. So so that's the doomsday scenario. And there are a couple of ways to get there. One of the things that we talked about on SIO was, can the state legislature just put that to a stop, right? And that would require unified party control over the state, which there just isn't in the states that are most likely to be the swing states in the 2020 election, right. So where there is unified Republican legislature, Republican governor, Florida, Georgia, Texas, Arizona, Ohio. It is unlikely in a maybe Arizona, but it is unlikely in a close election that any of those states will be the decisive Biden state.

0:25:21 Andrew: And so in thinking, oh, can can we stop it? It would, you know, it would it would have to hinge on that. Right. I said you have a split lit, right? You prevented a coordinated response by the state. And those states tend to be the ones that we think of as the true swing states, right, Wisconsin, Minnesota, Michigan, Pennsylvania, New Hampshire, North Carolina. So, okay, we're safe, article presents a couple of possibilities of how might we not be safe. And and I want to evaluate those. I want to reassure you in some ways and then the counter argument, and then reassure you again with the worst Supreme Court case in the nation's history on our side. So let's close.

0:26:17 Andrew: So so so that's how we're going to work through this. So the first, first is the first possibility that is put out by the Atlantic article is the possibility that the states will take back their right to appoint electors from the popular vote and just seize it for themselves. And you might be thinking that seems.

0:26:14 Thomas: Scott, I don't Know what that means. I'm sorry, oh.

0:26:44 Andrew: Yeah. How could that. No, no, no. That's great. Here's what that's misreading. OK. It is misreading an 1892 case called McPherson versus Blacker. Stands for the principle, you could imagine, quoted out of context, bad this looks. But this is true, right? This is stated in Bush v. Gore, relying on McPherson versus Blacker, and it is a true statement. And the statement is this. The individual citizen has has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

0:27:32 Andrew: Let's unpack that. Under the 12th Amendment and under or the structure of the Constitution, the right to appoint electors is left to each individual state. Now, for the nation's history, right, for two centuries, the way in which that's been implemented is each state has said, we will appoint our electors as in accordance with the popular vote, right? Right. So that's the way that that power gets implemented. But the power does not rest with the people. When you vote in California, you are not exercising a federal constitutional right to vote for president. You are not exercising a federal constitutional right to vote for the presidency.

0:28:23 Andrew: California could, if they pass a law, change the law and say, you know what? The state legislature of California is just going to allocate our electoral votes for from here on out. They could do that. So let me let me read again. This is now quoting from an 1874 Congress as quoted in Bush v. Gore. The state, of course, after granting the franchise in the special context of Article two. Right. And Article two is the election of the president can take back the power to appoint electors. End of quote. See McPherson v. Blacker, 146 U.S. at 35 from 1892, itself quoting an 1874 Congress saying, there is no doubt that the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.

0:29:17 Andrew: So, all right, I'm terrifying you a little bit here. Take states away the requirement that their electors be administered in accordance with the popular vote. And they could just say, yeah, that's it. We're going to have state legislature is going to announce who the electors from this state are. Possibility is then explicitly raised by Gelman. But what Gelman is missing here is that the method each and every state has chosen to administer its electoral votes is in accordance with the popular vote in that state. Right. And then in Nebraska and Maine, in accordance with the popular vote in each district. Right. That's why those states have the potential for split electoral votes. Yeah.

0:30:07 Thomas: They Have it, yeah. Gotcha. But

0:30:10 Andrew: Those are laws. The state legislature can't invalidate a law without passing a new law. Now, look, you could do that. Right? Right. So California, They

0:30:12 Thomas: They'd Have to do it ahead of time, you're saying then

0:30:21 Andrew: Would have to do it before the election and they would it would have to be an explicit law passed by the state legislature and signed into law by the governor. Right. So this goes back to SIO in states that have a Republican legislature, no matter how corrupt that Republican legislature is. But Democratic governors, right, Pennsylvania, Wisconsin, North Carolina, they cannot replace, they cannot change the law to take back the appointment of electors. So what's the worry? And again, look, Gelman's a smart guy, Buchanan's a smart guy, Foley's a smart guy. They all know that. So what are they worried about in states with split rule?

0:31:09 Andrew: They are worried about 3 U.S.C. Section 2, which says, and this is part of the Elections Act of 1791, right, whenever any state has held an election for the purpose of choosing electors and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct. Well, you read that and you're like, holy clown horn, that that sounds like exactly talking about. Yeah, that just yeah, that Just the Legislature could certify a new slate of electors and say, oh, yeah, sorry, you failed to make a choice on the day prescribed by law. Law. I understand why it says that. But let me tell you I'm confident. So so now so now let's put all that together in states that have split government. Right. That we've talked about Wisconsin. We know the Wisconsin state legislature is a corrupt extension

0:31:42 Thomas: Just the legislature involved and not the governor yeah Dumpster

0:32:17 Andrew: Of the Donald Trump. Yeah, yeah, it is a dumpster fire. It is a corrupt extension of the Donald J. Trump for President campaign. So they get together and they certify a brand new slate of all Trump electors and submit that to the Senate. Um, do we know, uh, by the way, the 12th Amendment and the Electoral Count Act of 1887, uh, specify that the person who gets to do the counting is the President of the Senate, which, until January 21, remember the Senate sits before the new president is sworn in, so that

0:32:18 Thomas: Fire yeah But

0:32:58 Andrew: Will be Mike Pence. Right. So what they say is Mike Pence gets these two different slates and he says, oh, yeah, OK, well, I'm going to read the Wisconsin one from the legislature that says it's for Trump and not the one from from the governor that says it's for Biden, or we're just going to throw them both out and say none of these electoral votes count. So, you know, we're going to through out all of the Biden wins in contested states until we get down to where Trump is a majority of electoral the votes cast. Don't think Pence can do that. And I think the reason Pence can't do that comes from our friend Bush v. Gore.

0:33:46 Andrew: Here's what Bush v Gore says. OK. And again, we discussed Bush v Gore in depth in opening arguments episodes one through four as again. Right. Maybe you're maybe be right on Plessy v. Ferguson and Dred Scott. But but but as one of the least defensible Supreme Court decisions of all time it

0:34:05 Thomas: But I also remember from that that it was a per curiam opinion, and I thought that meant that it doesn't, does it still have precedential value or whatever? Hey.

0:34:14 Andrew: 100 percent still has precedential value. Now, part of what limits that is that Bush v. Gore in its own text, and this is what I think you're what I I think you are remembering. It says, well, you know, this this case is highly idiosyncratic and should be confined to its instant context. But but and and that is the case, right? Like Bush v. Gore is not cited in other election cases, right, because it is sort of a naked admission that we We kind of made up this presidential election result to have our guy win. But you cannot disclaim the presidential value in adjudicating and interpreting the Presidential Election Act.

0:35:03 Andrew: Right. Like for presidents. Right. Like this is the exact same situation. Right? It is it is dispositive on the meaning of the various provisions of three USC one at sec. And one of those is 3 U.S.C. Section 5. And again, we go back and listen to OA Episodes 1 through 4, in which we explain what Section 5 was meant to be. So Section 5, 3 U.S.C. 5, is the safe harbor provision. And it says this. If any state shall have provided by laws enacted prior to the day fixed for the appointment of the electors for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such state, right?

0:35:55 Andrew: And that this year is December 14th, right? By judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the selectors. So count back, that makes it December 8th.

Such determination made pursuit to such law so existing on said day and and made at least six days prior to said time of meeting of the electors shall be conclusive and shall govern in the counting of the vote of the electoral votes as provided in the Constitution and hereinafter regulated so far as the ascertainment of the selectors appointed by such state is concerned. Now, that's a whole bunch of 18th century, 19th century gobbledygook language. What does that mean?

Means in this scenario that I talked about, right, that states can choose any method to adjudicate their presidential electors that they want. That right belongs to the state. Every state so far has chosen to allocate them in accordance with the popular votes, and two of them have chosen to allocate themselves to popular vote by congressional district. Right, if a state chooses a method, and it has done so by law prior to the election, and that method produces electors a week, six days, before the electors must be chosen by the Constitution and by the laws of Congress, then quote, shall be conclusive and shall govern the counting, end of quote. So that means that it's meant, this provision was written to stop exactly what Gelman is talking about.

0:37:37 Andrew: Right. Which is a state saying, hey, we're going to allocate our electoral vote by the popular vote. And then the popular vote comes in and they're like, oh, man, that's going to result in Biden winning. That's terrible. Let's pass a new law that says since it's our electoral votes, let's pass a new law saying, yeah, the hell with that popular vote thing. We're going to allocate them according to, I don't know, what the legislature wants. Give them to Trump. Right. This says if you have a procedure in place and it's before the election and it was validly enacted and it gives you an electoral vote count on or before December 8, then that count wins, wins. And when we turn to the Electoral Count Act of 1887, it says, right, it specifically applies.

0:38:29 Andrew: And I agree. By the way, Foley and Larry Diamond have written another law review article, which they say that the Ele Electoral Count Act 1887 is, quote, almost unintelligible. And they say we defy anyone to read its operative section, a morass of contorted syntax, and profess to truly understand its meaning with respect to the circumstance where it would matter most: if Congress were to receive more than one submission of electoral votes from the same state, the Senate and the House disagreed on which submission to accept is valid.

0:39:00 Thomas: Morass massive contorted syntax. Good name for Trump.

0:39:02 Andrew: Yes. Yeah, I agree. I I get to the electoral vote count, the Electoral Count Act of 1887, let me explain how Bush v. Gore transformed the safe harbor provision. So I explained how the safe harbor was intended to operate. It It was to say that when a state chose a method, so long as that method produced a result in a reasonable amount of time, that it couldn't do a takesies-backsies because it didn't like what that method produced. Those votes are determinative. They shall count. In Bush v. Gore, that was turned from a benefit to the states to some kind of offensive cause of action.

How it does so is almost incomprehensible, but it is nevertheless the law of the land. And here's what Bush v. Gore says. The Supreme Court of Florida has said that the legislature intended the state's electors to participate fully in the federal election process as provided in 3 U.S.C. 5. That statute, statute, in turn requires that any controversy that is designed to lead to a conclusive selection of electors be completed by, and what was then December 12, it's December 8 this year because obviously it's the whole first Monday after the first Thursday after the first full moon and which whatever, right, but uh it was december12 in 2000. It's December 8 this year. That date is upon us.

It was December 12th when they decided, and there's no recount procedure in place under the state supreme court's order that comports with minimal constitutional standards because it is evident that any recount seeking to meet the December 12 date will be unconstitutional, we reverse the judgment of the Supreme Court of Florida ordering a recount.

0:40:42 Andrew: Section 5 provides that the state's selection of electors shall be conclusive and shall govern in the counting of electoral votes if the electors are chosen under laws enacted prior to election day and if the selection process is completed six days prior to the meeting of the electoral college. That's crystal clear, right?

So now we apply that to how it counts if there are multiple slates, quote, case there shall arise the question of of which of two or more of such state authorities determining what electors have been appointed, it is the lawful tribunal of such state, the votes regularly given of those electors, and those only of such states, shall be counted whose title is electors the two houses acting separately shall concurrently decide is supported by the decision of such state so authorized by its law, and in such case of more than one returner paper purporting to be returned from a state, if there have been no such determination the question of the state of force said, then those votes and those only shall be counted which the twohouses shall concurrentally decide were cast by lawful electors appointed in in accordance with the laws of the State state. It gets better, this is all still one sentence.

0:41:56 Thomas: Yeah, I've tuned out. I don't know what this is. Explain to me what it means afterward.

0:41:56 Andrew: Yep. Unless the two houses acting separately shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such state, end of actual real quote. So, yes, right, when they say an almost unintelligible morass of contorted syntax, that's what Foley and Diamond mean, right? But I didn't read what I think is the governing provision here, which is, and again there's a little bit, I, I, I want to say I'm out on a little bit of a limb here, when it says such state authorities, comma, as mentioned in Section five of this title, end comma, now that is ordinarily just a throwaway line, but the Supreme Supreme Court in Bush v.

0:42:48 Andrew: Gore has said that that Section 5 of this title, that is 3 U.S.C. 5, creates an affirmative right for a state to, quote, fully participate in the federal electoral process, end of quote, and that that right is justiciable and enforceable by the Supreme Court. So the way in which that all gets put together, in my mind, is as follows. In the event that there are multiple submissions, Joe Biden will be able to go to the courts, and it will be clear that the submission that governs is the one that was administered in accordance with the electoral procedures set up in that state and decided in advance. And all of those, I

0:43:38 Thomas: And this is where I say, yes, and Justice Amy Coney Barrett is going to definitely uphold that ruling, right?

0:43:48 Andrew: So what will Justice Amy Coney Barrett do? She may not be seated at the at the time that the vote goes through. We don't know. She

0:43:57 Thomas: You don't think she'll be seated by the time the review process would have gotten to this point? And

0:44:03 Andrew: So, so here's the issue, right? Of these laws require that the decision as to how to appoint electors be made in advance. So the minute that somebody gets together to start appointing alternative electors, then you can get that injunction on November 4th. So do I think that Amy Coney Barrett will be appointed on November 4th? I do not think she will be appointed by November 4th, um, Think, yeah,

0:44:31 Thomas: Okay, Set that aside. They still have a 5-3 majority, David.

0:44:34 Andrew: There Is no way. It, again, I don't want to put too much on John Roberts. I definitely don't want to put too much on Neil Gorsuch. I do not see John Roberts taking the plain language of these respective statutes and the plain and clear controlling precedent of Bush v. Gore and saying, "No, actually, all that stuff we said about the safe harbor provision, protecting the rights of states to participate in federal elections, we were lying about all of that. And as it turns out, like just the legislature, not by bill in contravention to state law, can absolutely submit a competing slate of electors."

0:45:23 Andrew: I can, look, I can envision Clarence Thomas and Samuel Alito signing on to that. I have a hard time. I can vision Amy Coney Barrett signing on that. I can in vision. Yeah, that's about it, right? It is, it is very, very difficult for, for me to see a situation in which something that is, it's, it's obvious what they're doing, and it's crystal clear, what the results should be, going the other way. Again, we talk about this in OA 1 through 4. What hurt Al Gore, there were two things that hurt Al Gore in 2000, right? The first was that his presentation to the Supreme Court, David Boies, right, was, yes.

0:46:14 Thomas: Bowie's, sorry, It's just, like, like, David Bowie's presentation to the scene. David Boys.

0:46:15 Andrew: Yes. Boys. B-O-I-E-S.

0:46:20 Thomas: Is that one? Okay.

0:46:21 Andrew: Yes, not, not David Bowie, not, you know, the amazing former singer and star of Labyrinth.

0:46:27 Thomas: I'm say if That was his big, I didn't know the 2000 election came down to, he hired David Bowie.

0:46:28 Andrew: Yeah, down, to what, David Bowie. Did.

0:46:32 Thomas: He's like, "Look, I don't want to hire a lawyer. David Boy, he'll put on a show, he'll get in there, he'll make his case." Yeah.

0:46:39 Andrew: Yeah. Look, Gore argued in favor of specialized recounts in three counties. He won that at the Florida Supreme Court, but it crippled his argument in front of the U.S. Supreme Court to say, "Look, like, all I want is a straightforward recount of the entire state." And against that, Ted Olson, defending George W. Bush, said, "No, we have a result. The Electoral College meets today. They should meet today with the result that we have, and not with a prospective later result that would involve having separate recounts in just these particular counties, Volusia, Palm Beach, and I forget the third."

0:47:28 Andrew: Joe Biden will have, will be in the George W. Bush position in 2020, in the event that it's close. Right. His position will be, "We followed state law. Here are the official results pursuant to state law that have been certified by the governors of these particular states. What you have are renegade state legislatures trying to seat an alternate slate of electors, not in compliance with state laws, based on their determination that the first slate is invalid, but not as signed by the governor, not in any way overturning the state law." And this Supreme Court has said that those state laws represent an affirmative right, a protection to the states guaranteed by the Constitution and implemented by 3 U.S.C.

0:48:23 Andrew: 5. That's a much better legal argument. Now, again, we're talking about this. And the reason we're talking about this is because I don't want to suggest that the the risk is zero, right? I want to say several things, right? Again, all like Neil Buchanan has said, the entire thrust, I didn't get a chance to read it. We're running kind of late now. But like, the entirely higher thrust of his Trump's upcoming refusal to leave office. The good news is the more people talk about this, the more we can delegitimate it in advance. Right. The more we can say, look, come on. We know that that's not the way this election is supposed to go. Right? The more we can combat Trump's usurpation of the word coup to describe, you know, just results that aren't consistent with what he likes, the more we can just say, like, nope, we're just following the law.

0:49:20 Andrew: We're following Bush v. Gore, for God's sake. So, number one, I think it's worth talking about. And number two, right, you win big enough in multiple states, we can't, there's nothing they can do with respect to this, right? There are additional reforms that are out there. And Diamond and Foley point out, God help me, Marco Rubio has advanced a bill that would give states presumptively three and a half extra weeks to count the popular vote and resolve their disputes, right? Why would Marco Rubio do this? Because, you know, go back to the pen, pull that back out, because Florida may go more Republican over those three and half weeks, right. It is entirely possible that Joe Biden could win the in-person Florida vote on election night and, and Donald Trump could win after all mail-in ballots are cast.

0:50:17 Andrew: And you know what? If that happens, I mean, shame on you, Florida, but like that's the way it should be, right? Like let's pass Marco Rubio's bill, right. I know it's an unlikely scenario, that would also amend 3 U.S.C. 5 and it would extend the deadline from December 8th to January 1st. We should obviously do that in COVID, right?

0:50:46 Andrew: There's no question that resources are going to be strained. That would be an exceptional solution. And God help me, I want want to pass a Marco Rubio bill.

0:50:45 Thomas: We

0:50:58 Andrew: Diamond and Foley also talk about establishing a bipartisan commission. And again, I think that that would be an excellent idea, if only because what you want to do is you want to pin down in advance before people know. And, again, look, people have a pretty good idea what's going to happen. But like Rubio, you don't exactly know. We've never had an election during a pandemic before. We don't know if the blue shift effect is going to be blue nationwide, right? What we do know is those votes should count. If you win big enough, they can't put the strategy into effect.

0:51:44 Andrew: If you are vigilant in advance about bringing declaratory judgment lawsuits. We can stop these kinds of, you know, potential rogue state legislatures that that again, it's plausible, right? Like there's nothing the Wisconsin state legislature won't do. We saw that they stripped powers away from the incoming governor. There is nothing the Florida legislature won't do. But we can get courts to stop them. And I will say, I think I've come around to this as sort of the bottom line. If you are healthy, And you practice safe social distancing. I think you probably ought to vote in person in 2020. Yeah, it's I know that's a big ask. But I I think that's where I am.

0:52:31 Thomas: Do, hold on, I mean, I know it's California, so it likely doesn't matter, but we usually do the, fill out the mail-in ballot and then we go drop it off. Is that the same thing? What does that equal?

0:52:40 Andrew: Yeah, That, that, that's a subsequent count. Um, yeah. That's it, that's, uh, that's, that's part of the blue shift, if you, yeah.

0:52:44 Thomas: Subsequent count, that's Not, even though I go to the place where you vote in person and put it in a box there, it somehow counted differently than the ones, yeah.

0:52:57 Andrew: Because what they do is that the very first count is, and again, I, I should, I should hold off on boldly pronouncing that, I know exactly what happens at the precinct level at, in, in every state. But I think as a general principle that that counts are reported from voting machines first. Right. And then you start opening up the vote by mail, the absentee, everything else. It's possible. I and I believe in.

0:53:08 Thomas: In every state yeah Gotcha. We just like to go get a sticker.

0:53:31 Andrew: Yeah, I, everyone likes stickers. It is possible that states have implemented procedures where if you drop it off at the, at the ballot box, that it counts as in person. I would say find that out in your state, right? Like call your elections official and say, "Hey, if I drop this off, will this be counted as an in-person vote, or will this be counted as, as an absentee ballot, or as a provisional ballot? Now,

0:53:31 Thomas: So this SOB, POS, in, the, the White House is making it so that in a pandemic we have to go vote in person. We just can't risk it. What kind of level of fascist, evil piece of garbage. Is that, yeah,

0:54:07 Andrew: I think particularly if you, yeah, this is, and maybe this can help us end on an optimistical, you know, a more optimistic, I started to say optimistic, but then I realized I needed to qualify that. That's how I invented the non-word, optimistical. A semi-optimistic note, and that is these are the death throes of a party that is led by somebody who has 40% support and is a member of a body that has 45% support nationally. It's a party that is fading towards irrelevance. And it, it 100 percent sucks that we have enabled them through inaction and slow responses to their sleight of hand to risk steal power.

0:55:04 Andrew: Right. To steal power by the judiciary and by packing it with 30-year-old Justins and Corys, and to steal power through gerrymandering, through red map, that enables them to consistently win majorities in states where they are the minority party. Party, um, we got a lot of work to do to, to sort of like root them out, um, but the underlying conditions, the reason they're doing, you don't do this if you can win national majorities, right? Republican party didn't have to do this in 1984, um, they, they yeah, it

0:55:38 Thomas: I know, all this is cold comfort, though, when they have a 6-3 fundamentalist majority and can strike down Roe and all that stuff, so yeah, all

0:55:43 Andrew: And and that that, that is, that dovetails with our Friday episode. It is the second optimistic-ish note, and that is the more they do this, the more we call it out in advance, the easier that is to persuade the average person of the urgent need for reforms, for drastic reforms in 2021. Look, it's going to be a huge fight to sell eliminating the filibuster, right? Republicans are going to take to the streets and go, "The Democrats want to get rid of a provision that has been in the Senate for 230 years since our nation's inception. Don't let them radically remake this country." And that argument will fall, right? Like that argument has plausibility with a number, you know, with a broad swath of America.

0:56:37 Andrew: And we need to have the response of, are you kidding? Did you see what they tried to do in 2020? We need to make sure they never do that again. And unless we take drastic steps, they will. So,

0:56:48 Thomas: Right. Well, on that note, you know, I did want to actually real quickly say, just today, as we're recording, which obviously we record ahead of time, recording on Thursday, you know, I follow Jamel Bowie on Twitter, and he tweeted out the Mitch McConnell tweet, you know, because Mitch McConnell is allegedly saying there will be a smooth transition of power or whatever, and he pointed something out that I can't help think he's totally right about. So McConnell said, "The winner of the November 3rd election will be inaugurated on January 20th. There will be an orderly transition, just as there has been every four years since 1792." Jamal Bowie is saying, "Yeah, am I paranoid, or is that really specific?" You know, setting up this idea that, like, the November 3rd election, the November 2nd election, they all seem to be using that language now. I've seen a couple of other statements to the November third election as a way to cut off, like, any of the late blue shift stuff and just say it's not valid because it's not on election day kind of thing.

0:57:34 Andrew: Yeah, yeah.

0:57:50 Andrew: Yeah, That's, that how I read, as as somebody who has been burned by Republicans an awful lot over the last four years, that is how I read, with a cynical eye, the the the view of those statements. Right. I think shifting the focus to having them repeat over and over again the November 3rd election is designed to throw shade at subsequent calculations because it's counterintuitive. And what we need to be doing is pointing out the Republicans that have won by late calculations, right? The fact that that this has been a permanent fixture of our electoral landscape since at least 2000, and that, you know, it is not a, you know, Democratic coup or, you know, whatever nonsense that the Trump supporters are going to put out.

0:57:50 Thomas: No,

0:58:45 Andrew: And that's why we're discussing this article in September, right? It's, I agree with Neil Buchanan. I've reversed my previous position. I still think that these are are unlikely scenarios, but I think part of what we can do is talk about them out in the open and deprive them of their ability to, you know, slip in a well, hey, we've all agreed it was election night itself and nothing else, you know. Look, that would mean, look, if that were the case, right, um, it would mean that that John Kerry would have been president in 2004, right? The Ohio results did.

0:59:24 Thomas: I know. We know it's, we we all know it is nonsense, Andrew.

0:59:24 Andrew: Yeah. Yeah. No, I know, I know, you know it's not, but I'm equipping people with with actual evidence. In 2004, if you invalidate the results in Ohio, right, if you say, "Oh, nope, Ohio's electoral votes don't count," then John Kerry's president. Okay, the fact that John Kerry is not president is strong evidence that it's like, "Oh, I'm sorry, uh, midnight, Cinderella's coach turns back into a pumpkin," can the horse turn into mice, and you elect whoever's ahead at the time? Like, that's crazy, and we need to set the landscape now of, like, yeah, um, lots of people voting by mail because it's a clown horning pandemic, uh, sorry, I'm trying to keep this episode clean, but I'm angry, um, uh, and and we do need to talk about it. And and I am, I am thankful for the discussion of the scenarios. I think that we are on firm legal grounds. And I think the two things that help are if we voted in numbers too big for them to manipulate, and if we've developed the legal infrastructure in advance that prevent them from engaging in this chicanery.

0:59:29 Thomas: Yeah.

0:59:53 Thomas: All, right,

1:00:43 Andrew: That's the best protection. That's the best way to just illustrate, hey, this is not normal. This is not just, there are two different ways to do this. We know what they're doing. They've lost, and they're trying to steal the election. That's where I come out.

1:00:58 Thomas: Well, thanks for the breakdown, uh, we appreciate it, as always, Andrew, we'll try to be as optimistic as you are.

1:01:04 Clip: And thank you, Let's go!

1:01:06 Andrew: I

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1:04:42 Andrew: That's Just That's The classic Song Yeah I Think chundering, right? Because I, I seem, seem to recall this from uh, Crocodile no It's It's From Crocodile Dundee, it isn't chundering, it's Either like when you drink till you puke, it's because it's one Of those things Yeah, yeah Thank

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1:08:58 Thomas: Yeah. Oh.

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1:10:12 Thomas: Thank you, patrons, that was a lot Of fun, it's

1:10:15 Andrew: Conrad Michaels

1:10:15 Thomas: Always a Yeah. It always cheers us up. All

1:10:16 Andrew: Yeah.

1:10:18 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:24 Thomas: Now it's time for T3B Answer Time. All right, Andrew, do I need to make a thingy? Let's find out. Oh,

1:10:29 Andrew: Right. So, this was a fantastic, multi-faceted question about the dangers of dynamite. Mining company operated a mine, uh kept its dynamite in a storage facility in the jurisdiction. The storage of dynamite was deemed abnormally dangerous and abnormally dangerous activity. Uh, but the facility was, you know, designed and operated in conformity with state-of-the-art safety standards. Sure enough, uh inspector is there and And the dynamite goes off and then he brings an action in strict liability against the mining company. What's the mining companies best defense? You initially eliminated a which I would agree, which says the mine was in a remote location.

And I totally agree with you that that that is by far their worst defense. Fence. So, yeah, well, and that's because remoteness of location. So all of these contain elements of stuff that if you were cramming for the bar exam, you're like, oh, I remember that phrase, right? That's what they're designed to trip you up. So what does remote location have to do? Let me first describe the operative legal principle here. And that is an abnormally dangerous activity is one that imposes strict liability on the defendant, right? And that is to say the defendant is responsible for the consequences of their actions, regardless regardless of whether their actions were reasonable, regardless,

1:11:21 Thomas: Yeah, there's One thing I did right. Let's see. Yeah.

1:11:36 Thomas: Man.

1:12:05 Thomas: It's C, isn't

1:12:05 Andrew: Right?

1:12:06 Thomas: It, damn. It, I should have guessed C. I, uh,

1:12:11 Andrew: It is. Yeah, so let's Unpack it. So you got it wrong, it's C. Let's unpack all these answers. You eliminated A, remoteness of the location is relevant when you are determining, uh, when it's not clear that an activity is abnormally dangerous, right? So one of the things that, like, becomes abnormally dangerously, I think I'm remembering this correctly, uh, is like the stampeding of wild animals, right?

1:12:13 Thomas: Yeah. Yeah.

1:12:41 Andrew: Um, but so if you have a farm, right, and you say, I look, like my farm's out in the middle of nowhere, and yeah, like the, the cows, you know, stampede all the time and they trample stuff, but like you've got to come all the way out to Wyoming and you've gotta cross six fences and what, right? Like you would say, okay, um, we're not, if I sneak onto your property, I'm not strictly liable when I get trampled, uh, by your herd of cattle, because it was not abnormally dangerous in the context of being in this remote Wyoming ranch. On the other hand, would be if I loaded all the cattle onto a truck and set them loose in New York City, right? But because we have a predetermined decision that storage of dynamite is abnormally dangerous, it doesn't matter if you store it remotely or in New York City.

1:13:28 Andrew: It's abnormally dangerously either way. So you eliminated C, which was the correct answer that the employee assumed the risk of injury. I'm going to get to that in a second. And then you were choosing between B and D. And the problem is that D, which was your ultimate answer, is the storage facility conformed to state-of-the-art safety standards. The safety standards are relevant in an ordinary negligence action, right? Because it says, oh, look, I didn't violate my duty of care. I acted in accordance with the state-o-theart safety. I did as good as anybody could do.

1:14:06 Thomas: It Doesn't Matter Because Strict Liability

1:14:07 Andrew: Yep. So D doesn't matter.

1:14:08 Thomas: Right. Yeah. I Gosh. I Should've gotten this right, I blew it. I mean, because really, it the bnd it's just nothing. Like, it doesn's, what threw me off was, you know, what's the best defense, it's hard. I think this is the second time, maybe, this has happened in the whatever, 200 something questions we've done, where it's like, it's not that that necessarily is going to work, but there's no other options that will work, you know, like B doesn't matter because it's about the, it's the fact that they're storing it is the deemed The abnormally dangerous activity, so therefore that's why, you know, it doesn't really matter if

1:14:10 Andrew: Yep. Right. Who

1:14:43 Thomas: They manufacture It Um, And the D, we've already covered that, yeah, I should have just taken an extra second, I should realize it, so it's like C is the only thing that has a chance. I still don't think so, C still, still doesn't make sense, because it's like, yeah, they didn't really assume the risk of being blown up, did they? But it's just, that's the only thing that has any chance of working.

1:14:44 Andrew: Manufactured it or not? Exactly right.

1:15:03 Andrew: It assumption of risk is an affirmative defense and it's an affirmative defense, even in strict liability action. So you, you are correct. It's the, it's the only thing that has a chance.

1:15:03 Thomas: Right. Okay. It's The least Bad Option Yeah. Should have known it. You know what, Andrew, you've equipped me with the knowledge that I should have been able to get this, and I apologize to you personally for failing you. This is, uh, you deserve better, I Had this One, I Knew it.

1:15:14 Andrew: Yeah. Right.

1:15:25 Andrew: Well, I, I hurt along

1:15:27 Thomas: You're A good teacher, and I blew it. But, but, uh, maybe I threw the question so that I would have to make the following sad music.

1:15:28 Andrew: With you. So

1:15:36 Clip: Wrong! Hide my head, I wanna drown my sorrow. No tomorrow, no tomorrow. You lose!

1:15:50 Thomas: Okay, well, I got it wrong, but uh, why don't you hop in your time machine and give me the correct week's answer of who wins this week's T3VE inside joke for patrons of last week's show.

1:17:57 Thomas: All right, that's our show. Thanks. Thanks so much for listening. Vote early, vote in person. And let's put an end to this madness, please. Dear God. Okay. See you next time.

1:18:05 Andrew: There you go it's all that

1:18:08 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:18:42 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.