OA460: Did the Courts Really "Refuse to Hear Trump's Evidence" of Voter Fraud? (No.)

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 460 and, you know, we're a hundred better than Anderson Cooper. You know, he's got that 360 show, but we go the full 460, which is hard to precisely do, but we do it.

0:01:30 Andrew: On my longboard, I can pull a wicked 460, let me tell you. An aerial double stop half pipe 460. It's 100% better, yeah.

0:01:41 Thomas: That's the kind of deep dives. Yeah. Well, I'm going to try to work out the fraction. That's like 33 percent something. But anyway, 30 percent better. All right. I am so excited for today's episode. I'm Thomas. That's Andrew. How are you doing, Andrew?

0:01:56 Andrew: I am fantastic, Thomas. How are you?

0:01:58 Thomas: Great. I Am so excited to cover that. You've done the deepest of deep dives on something that I'm sure here. I'll just tease it right now. Now, I'm sure a lot of you, if you've interacted with people on the right at all, you've heard this claim about because they're still trying to pretend that the election was stolen, that whatever, you know, and the claim is, well, not a single one of the, you know, however, 80 court cases about election fraud were allowed to show evidence. They were all dismissed on standing, which, you know, you even hear people like otherwise would have been serious people back in, I don't know, the 90s before the Republican Party.

0:02:40 Thomas: Otherwise, here's people saying that's just a way for a judge to say, I Don't even want to look at it. And so it's so frustrating because we and by we, I always mean, Andrew, work so hard on the show to make sure these things are explained and deep dives are deepened. And so to have all of the work that Andrew has done breaking these cases down to be summarized as, ah, just dismissed on standing. Ah, they never got to look at it. So that does it. We're putting our foots down here on Thomas and Andrew 460. We are breaking down why this is such a bogus claim. And if you have anybody out there making that claim that all that, that they never really looked at the evidence, they're all dismissed on standing, send them to the show for the breakdown because we've had it with that claim.

0:02:54 Andrew: You Yeah.

0:03:31 Andrew: And I really, really think that if, if you have an Uncle Frank and you've been waiting for the opportunity to kind of walk him step by step through the people you're retweeting are lying to you, uh, this is, this is a really good opportunity. There's a, with a number of like great gotchas, so, uh, so stay tuned for that. Oh.

0:03:55 Thomas: All right. Hey, before we do that, what's going on over on aisle 45 this week, Andrew?

0:04:00 Andrew: Uh, so Thomas, we, we had a great show. Um, we had uh, journalist David Rothkopf on, and we were talking about unity versus accountability, kind of a common theme, and little, little bit of a follow up to Samoa stuff on pardons. So, tune in, I will tell you the thing that our listeners will find most shocking is that AG attempts to do a lightning round in the C segment. And you can, you can tune in and see how that goes.

0:04:25 Thomas: I I am, in problem, we're gonna, I'm gonna have to talk to AG because she did seem to have a method of getting you to stay a little quicker than, than my method. So we might have to compare notes. I don't know if there's a shock collar involved or I don't, what's going on over there, but well, but yeah.

0:04:44 Andrew: That, at Her Method, her methods are her, what's, um, what's up with, uh, latest, uh, SIO Thomas, really?

0:04:49 Thomas: Oh, well my podcast series inquiries only, I just had a Lindsay Osterman on to explain. There was a, a, an article that made the rounds that the Dunning-Kruger effect might not be real. And it might actually be like a data artifact or the, or, you something that you would expect with just random data. And there's a it kind of made the rounds on our on our science circles on Twitter and so forth. And so I was genuinely agnostic about the question and I was curious about it. So I had serious inquiries only science splainer Lindsay on to to do the deep dive on it. So if you want to know if that's really a real effect or else if it's just a data artifact, go check out serious inquires only. Yeah my

0:05:00 Andrew: I Really, I've really, really want to know, so yeah. Very.

0:05:31 Thomas: Lips are sealed

0:05:32 Andrew: Cool, well, I, I was gonna say I was gonna call for an edit point, but I guess, I guess not, that's not gonna happen, so there we go.

0:05:39 Thomas: All And one more quick announcement, Andrew, we have our monthly Patreon Q&A coming up, and that's going to be on Tuesday, the 2nd of February, and that's at 3 my time, 6 east time, so 3 pacific, 6pm eastern, that's always a lot of fun, as a reminder, only patrons get to ask questions for this one, but everybody can come watch on YouTube, everybody can can come and we interact with the chat on YouTube. It's all kinds of fun. So come hang out, ask questions. But again, on that Patreon thread on patreon.com/law, which Andrew will post, that's where you can ask questions. You can heart the questions that you want to hear answered. And that actually helps me a lot as I'm going through to pick the questions to see, to kind of gauge the level of interest.

So make sure you do that, patrons, and you have a good chance of getting your question answered if you ask it and if you vote on there. So once again, we'll see you. Go Go to our YouTube channel, Opening Arguments, and you'll get a notification when we go live and all that. That is, once again, February 2nd, Tuesday at 3 p.m. Pacific, 6 p.м. Eastern.

0:06:02 Andrew: Everybody Can Come. Yeah.

0:06:44 Andrew: Very

0:06:44 Thomas: We'll

0:06:44 Andrew: Excited about that one. And, and one last thing, um, I, I just want to talk to our listeners for a minute, um, in connection with the GameStop, um, we, we have run ads for Robinhood before, uh, we, we, we may have had one scheduled for the upcoming weeks, um, and, and, uh, have pulled that, um, we're, we're not going to be running that ad until we figure out, right? Like, that's not, it is not to say that, you know, we have definitely prejudged that something's going on. You know, AOC has said, hey, I just want to, you know, I want more information. I want to figure out why it looks like Robinhood is allowing hedge funds to trade GameStop, but not allowing their individual investors who are now, you you know, maybe stuck with something that's, you know in a bubble in their portfolio. And if that's the case, you Know, we'll we'll take a stand on that. We do try very hard for ethical monitoring of our ads over here at opening arguments. So we're aware that we looked at it and and we may have made changes.

0:07:17 Thomas: Yeah.

0:07:47 Thomas: Paused We Hit pause on

0:07:50 Andrew: Hit pause. That's that's the right way to say that. And and as As always, if if you want the show ad free or, you know, you want to express your gratitude for that. Patreon.com/law. You get the show totally ad free for for literally one American dollar. So hard to do better than that.

0:07:50 Thomas: That, yeah.

0:08:08 Thomas: And early on Sundays, and by the way, I haven't said this in a while, I edit the patron episode so that the patron shout outs are at, they're the last thing, they're after the T3B Just another, another little thing we do for patrons, because, uh, you know, makes it easier if you, if you are somebody who likes to skip the shout outs, makes it a little easier for you. So all that is on patreon.com/law. That's how every episode goes out to our fine patrons. Okay, at long last, Andrew, let's get to it. Oh.

0:08:19 Andrew: Hmm. All right.

0:08:37 Clip: Joe Biden will become the 46th president of the United States. This election is not over. It's over, beast. This is a major fraud in our nation. If you count the legal votes, I easily win. You lose. It's Over Beast.

0:09:02 Thomas: It's over, I'm doing, it's over, beast, one more time. Yeah, ah, so we just heard it's over beast one last, hopefully last, sweet, sweet time. Tell us why, Andrew. It's really over, beast, and this claim is nonsense. Why don't you take us through it?

0:09:13 Andrew: Yeah. I am going to be fisking an article from the Gateway Pundit, which is a huge right-wing garbage

0:09:23 Thomas: What an otherwise reputable source. I would have never thought.

0:09:24 Andrew: Yeah. And A, uh, a, a total, uh, clown horn named Joe Hoft, H-O-F-T, so if you must, must read the article, that's how you can find it. I am going to read word for word everything that's on this post, so there's no need for you to click there. But But if you want, and you want to back it up, and you're sitting here with Uncle Frank. Hi, Uncle Frank, my name is Andrew, I'm a real lawyer, and I'm going to tell you the real truth about lawsuits, as opposed to Joe Hoft, who, uh, made stuff up. All right, so we begin with the 2020 election will go down as arguably the greatest fraud in world history. Now, I, I love the use of the word arguably That, right? Like, I'm, I'm stating Nonsense.

0:09:44 Thomas: Good call.

0:10:10 Thomas: Yeah. Hedging a little.

0:10:13 Andrew: Yeah. Let me Let me put in arguable there, but Anyway, all right. Yeah.

0:10:13 Thomas: Yeah, like perhaps Enron was more of

0:10:17 Andrew: Maybe

0:10:18 Thomas: A fraud or or something. I don't know.

0:10:18 Andrew: Right. The tremendously popular incumbent candidate president Trump, can we take a slight break there, Where Donald Trump had a 41% approval rating Throughout His Entire term.

0:10:25 Thomas: Come on. Yeah. Give me a break. Even, even for their standards, that's a laughable claim. Like, come on, that's some North Korea crap right there.

0:10:33 Andrew: Yeah, yeah, yeah. Was easily winning the race on election night in a landslide. That's in italics from them. And then suddenly multiple states took a break, quit counting. And by the end of the week, the election was flipped to Joe Biden. Then as the president and his team attempted to address the fraud and alleged abnormalities, The courts, this is key, refused in any case evidence to be brought before a court of law. Now, notwithstanding the questionable grammar of that sentence, key argument here is that no evidence was permitted. Right. And this is this continues when we look through to the underlying chart that this is based on

0:11:18 Thomas: Well, I wanted to poke in just to say that this is not, you know, by the language of this article, this sounds like, oh this is crackpot stuff. Like we don't need a word. This is basically word for word without a few of the North Korea claims. What what Rand Paul said on the Sunday shows a mere five, six days ago, whatever day it is. This is his arguments.

0:11:37 Andrew: Yeah. Yeah. Yep.

0:11:39 Thomas: Word for word are they never, you know, it's just standing. It's just the way. So this is mainstream Republican belief right now. Trump or belief right now. So, this is very ubiquitous. It is not just, you know, we did not just pick on one random article.

0:11:52 Andrew: No, that is right. And they are all getting this argument from the same single source of data. It is on Scribd. And I'm going to link that in the show notes. And it is an Excel sheet of 2020 election court cases. And I'm going to show you that this spreadsheet is complete and utter nonsense as we work through it. Right. So the claims here are there are 81 court cases to date based on the 2020 election. In 45, Trump was the plaintiff. In 72 of those cases, illegal voting is alleged. But in zero of those cases, has evidence been allowed to be presented? Again, I want I want to tell you I am.

0:12:38 Andrew: That is a direct quote. Right. Zero of those case is, quote, has evidenced been allowed to be presented, end of quote. That claim is entirely false. Then 30 cases remain active. Right? So think about what the implication is. Right, the implication is no court has yet heard any evidence of voter fraud. But Trump is still fighting in 30 of those cases. Right. And then the obvious implication is, so look like it's not over beast. Right? Like we can, we, as soon as a court, you know, actually hears one of these cases and doesn't like dismiss on some crazy ass technicality, we're going to overturn this election and then Joe Biden will be in trouble.

Trouble. None of that is true. Allow me to walk you through that. So first of those 46 cases where Trump was the plaintiff, the spreadsheet lists 15 as active. Well, actually it says 16, but I don't know how there's a counting error in Excel. Like I went through it every like there are only 15 that are tagged with the active line. Right. So so we're going to look at those those 15 active cases, right? Like it doesn't make sense to talk about the 31 that are closed, right? The, you know, case closed, right. There's nothing more you can do about that.

0:13:12 Thomas: Yeah.

0:13:59 Andrew: Right. We're going to go through all 15 spoiler alert of those 15 that are allegedly active. Only one is active and well, two sort of technically, and we don't know why and we'll We'll get, we'll get there.

0:14:12 Thomas: Boy, that better be a big case. It better Better be like better cover like several states and and the remedy will be Trump is put in the White House immediately. Right.

0:14:15 Andrew: Yeah.

0:14:24 Andrew: It's not quite, we're good. We'll we'll, there the first thing you notice. And to be honest, I almost put this in an a segment and, and, and just like dusted my hands and was like case closed. But then I really thought that this was a way of, of reaching out to, to uncle Frank. And I appreciate your patience here. I want you to to click on the Scribd document link. I want you to scroll. You do not have to be you don't have to sign up on Scribbd. It will show you a preview.

0:14:25 Thomas: OK.

0:14:51 Andrew: And I want you to roll down to the bottom of this chart and at the bottom of the chart under the legend, because the columns will say illegal voting alleged question mark and then evidence argued argued question mark. And there's little asterisks, right? And so at the bottom, the asterisk define what that means, right. So you go down the first little aesterisk says illegal voting alleged includes a voter improprieties, e.g. non-citizens voting, non-registered citizens voting, deceased parties voting, registered voters voting twice, Stanford healthy elections tracker, et cetera. Okay. And or B process illegalities, officials correcting correcting ballot errors and or see voting machine irregularities. OK, that's that's a fair definition of illegal voting from their perspective.

0:15:42 Andrew: But then we get to the asterisks, the double asterisk. And I'm going to read you again. This is word for word. Uncle Frank, click on the link, go to the bottom of the Scribd document. This is not me describing it. This is their description of the single piece of evidence that is at the source of all of these claims. Quote, evidence argued means that, A, the plaintiff was able to present capital A-L-L all of their empirical evidence related to voter malfeasance, voting malfeasons, impropriety, etc. And this is the best part. B, the judge authorized an independent investigation to verify the accuracy of the claimed voting malfeeasance impropriete, etc.. Um, now you're muffled.

0:16:29 Andrew: What the hell there is entirely correct. Because if you're thinking, gosh, Andrew, um, no, that's not remotely how that works. In no case in zero of these 81 cases, did the plaintiffs ask for the judge to authorize independent investigation to verify the accuracy of the claim voting malfeasance? And courts do not. They're not just like, you know, the court at the beginning of Superman, too, that like sentences Zod to the Phantom Zone like they can only award the relief you ask for.

0:16:34 Thomas: Is that how that works?

0:16:56 Thomas: Yeah. Yeah. They're not like CSI, you know, or something. They're going to send their team out to check all your evidence every Time you make some bogus claim. Yeah.

0:17:03 Andrew: Right. Right. It. Yeah. So. So right off the bat. Right. In 80 of 80, you know, in all 81 cases, it could be the case by this definition that Donald Trump presented literally every piece of evidence. But the judge just didn't authorize the commission because that was beyond the power of the court to do so. Right? Or it could be the case that Trump presented all of their evidence. One one person was excluded on a motion in lemonade because they were a crazy person like Terpsichore or whatever.

0:17:41 Thomas: Right.

0:17:41 Andrew: And we still had the commission and it would still not qualify.

0:17:43 Thomas: It would still say because not all not capital all.

0:17:44 Andrew: Right. Right, right. Because not capital A-L-L all. Right? And so I thought, OK, all right, fine. Now you've just seen, right, that you've seen Uncle Frank in equivocation fallacy. Right! Right. Evidence argued is defined in the document as I get everything plus the relief I want. That useof the term is not present in in the text of the article by Joe. Right. Like the articles say we didn't get to put in any evidence at all.

0:17:46 Thomas: Yeah. Yeah. Oh.

0:18:13 Andrew: Not we didn'T get to PUT in every last piece of our evidence. Right. Right. But but then I thought I sort of put on my my I played devil's, you know, Uncle Frank's advocate here. And it was like, OK, but but how did how did it really break down? How much evidence did they get to present? How many of these cases are still open? What what's the reality? And let's go through each of these 15 cases. Some will go quicker than others. The first case on the list is Trump versus Bookvar. 20, case number 20-00966, which is a federal court in the Western District of Pennsylvania. It's listed on the chart as illegal voting alleged yes, evidence argued no, disposition dismissed for lack of standing, and status active.

0:19:05 Andrew: I want to tell you, of those four things, three of them are direct lies, and one is highly misleading.

0:19:14 Thomas: We're gonna play like two truths and a liar, two lies and a truth. Yeah, you have met the Queen.

0:19:15 Andrew: Yeah. Yeah. Exactly. We're gonna play FMK. Yeah.

0:19:20 Thomas: But you have Yeah, well.

0:19:20 Andrew: Right. Bobby. Okay, this case was filed on June 29th, so immediately you're thinking, "Uh, June 28th 2020, um, probably doesn't allege illegal voting," and you would be correct. Um, this, uh, you can see, and I will link the opinion, uh, in the show notes, from page two of the ultimate opinion, uh, disposing of this case, um, the Trump campaign made three arguments. Those three arguments were, one, that drop boxes are unconstitutional due to the lack of security or guidelines. Two, that the Secretary Buchvar's order instructing local vote counters not to signature match was unconstitutional, right?

0:20:10 Andrew: Not to throw out any vote in which the signature on the outside of the envelope didn't match the signature-on-record, right. And we've talked a lot about why that's a terrible standard. But number three, a prospective order that that the requirement that poll watchers be residents of the county in which they are watching the polls was itself unconstitutional. So that's what this lawsuit was about. It was not about any allegations of any actual illegal vote whatsoever. It was about, hey, they're setting up drop boxes. We don't think they can do that. And the court said, yes, they can. They're telling us that we can't throw out votes where the signatures look a little different. Well, yes, they can. And we don't like the fact that we can't bring in like mega hat wearing people from outside of the county to shout at people watching the polls that that poll watchers have to be residents of the country in which they are counting the vote.

0:21:09 Andrew: So on the question of was illegal voting alleged, I think it's fair to say not in this case, not at all. Then?

0:21:18 Thomas: So would they try to say like the signature matching part is that because

0:21:22 Andrew: Yeah. They would say, "Well, this was a procedure that we think was likely to lead to illegal votes down the line."

0:21:27 Thomas: We Know that if you, if God, it's so dumb, like they have traded off illegal voting means somebody's signature could have been a little off, that's what they think illegal voting means, so

0:21:38 Andrew: I is zero. There are zero allegations in this lawsuit that anybody voted illegally. Right. And and that's again, remember, I get that we did the little definitional trickery. Right? Right. But but this says that Joe Hoff writes the election was a fraud. Multiple states took a break, quick, quick counting and flip the election to Joe Biden. And we're here in court to present fraud and alleged abnormalities. The court refused to hear that evidence. The first case on his list, number one. So this doesn't bode well, does not allege fraud or abnormalities relating to the vote count. It says we don't like the way they set up the rules back in June. OK.

0:22:22 Thomas: In June, yeah. Okay. OK. And remind me, sorry, what state is this for? Pennsylvania.

0:22:22 Andrew: Yeah. This is Pennsylvania.

0:22:27 Thomas: Pennsylvania.

0:22:27 Andrew: Yeah. Next, did Trump get to present his evidence? Right. I want to explain how galling it is in this case. And again, Uncle Frank, take a look. This istage two of the opinion of the court in this decision. Page two says, in order to present these claims to the court on a complete record, the parties engaged in extensive fact and expert discovery and have filed cross motions for summary judgment. Now, let me take a tiny rabbit trail to explain what cross motions per summary judgment means. A motion for summary judgement says we've completed discovery, that is, we've exchanged all the information and we're done. Right. We don't need to go to a jury to determine the facts because the facts are not in dispute. We agree on the facts.

0:22:27 Thomas: OK. Mm hmm.

0:23:16 Andrew: Right. In the law, we call that there is no genuine dispute of material fact. And so you don't eat a jury till I hear testimony. You just need the judge to apply the facts we agree to the law at hand. So let's not have a trial and put it in the hands of, you know, some jury, because who knows, they could be crazy. Right? Right. And and I will tell you, in about 20 percent of cases, one right, of the parties will file a motion for summary judgment and those get granted about half the time. Right. So this is a major part of practice is what I do on a daily basis as a litigator. There are two ways when the other side moves for summary judgement. There are two way ways that you can respond to to that as a party. You could say, oh, oh yes, we absolutely do dispute the facts, right?

0:24:01 Thomas: Mm-hmm.

0:24:02 Andrew: And then you just list, you file an opposition brief and you say, here are the facts that are disputed. So we should go to trial. We should have a jury. They should be able to determine what facts are, right? Then that's the job of the jury is to be the fact finder, right. Or you can say, well, you know, we actually, we do agree. There are no facts in dispute, but we think the law favors us, right? If you do that latter one, then it becomes a cross motion for summary judgment, right? Because both parties have filed summary judgment motions against each other. So think about what just this simple sentence means in this case. It means that the Trump campaign decided that they had enough evidence, that enough evidence was introduced in this place, that it was brought before the court.

0:24:51 Andrew: Now, they could have said, oh, no, no. We still need more discovery. Right. They could have said, we want witness testimony. We want to try. All of those are valid things for you to plead as a plaintiff. Right. But they didn't. They said, yeah, we totally agree. We're done. We've gotten all the evidence there is to get. We're cross moving for summary judgment. They just lost. Right? Like it is. So in terms of was evidence argued in this case, Evidence was argued to the satisfaction of the Trump campaign. And you can see that on page two of the court's order.

0:25:25 Thomas: Yeah. Agree. OK, so this was like they agreed on the evidence. Then one side said, OK, we agree. You know, the the the what the state, the secretary of state, whoever the plaintiff would be. They say, yeah, OK, well, Trump.

0:25:37 Andrew: Yep. This Trump was the plaintiff here. Right. So, yeah,

0:25:41 Thomas: Yeah, we disagree on those things. And And then they said, yep, we agree. And they're like, OK, well, then, judge, you should decide this because there's no facts in dispute. And then the other side, the Trump side, says, yeah, you know what? You should decide that. Because it's are no facts and dispute. We think it's going to go our way.

0:25:56 Andrew: Exactly.

0:25:57 Thomas: Is that a summary? OK.

0:25:58 Andrew: That is exactly right.

0:25:59 Thomas: So nowhere in there would be room to say, but I didn't get to present my secret top secret evidence that I have. Nowhere within that is there room for that.

0:25:59 Andrew: OK. And you see that. Nope. No. And look, you could write again. All you have to do is not move for summary judgment. You just have to say we we believe there are disputed material facts. Right. And you could do it in the alternative. Right. You could say we think we think the facts are undisputed in our favor. But, you know, to the extent the court considers X, then like, you knows, we would. But but they didn't do any of that. They just cross moved. All right. So now we're 0 for 2 in claims against this lawsuit.

0:26:13 Thomas: You could have. Yeah.

0:26:37 Thomas: Mm-hmm. I was going to say two down or one down. Oh, no, we're still on the same lawsuit. Oh, all

0:26:40 Andrew: Yeah. Oh, we're still on lawsuit number one. Believe me, the others will go more quickly. Right? But hey, hey, you wanted a deep dive.

0:26:43 Thomas: Right. 780 hour podcast. Here we go. I did

0:26:49 Andrew: You're getting a deep dove, my friend.

0:26:49 Thomas: Call AG.

0:26:52 Andrew: Next, it's it said,

0:26:55 Clip: YOU BETRAYED THE LAW!

0:26:56 Thomas: Andrew, I've got such an exciting announcement that I know our listeners are going to love. We're going to be going live for essentially a third opening arguments every week, Andrew. How are we pulling that off? We're not. There's

0:27:08 Andrew: Not. There's No, there's no way I did I I

0:27:10 Thomas: No way. No, stop Stop that, naysayer. We are pulling it off. We are going to be on the Stereo app every single Wednesday at 5 p.m. Pacific, 8 p.м. Eastern. And the Stero app is going to allow us to take all listener questions and interact with us. I am so excited. I cannot believe that we are giving you even more opening arguments on the stereo app.

0:27:33 Andrew: That's ridiculous. I did not, I did not sign up for this. I'm not. There's There's I Oh I Did I did sign up for this, um,

0:27:37 Thomas: I got your signature right here, buddy. Sorry, you're in. Each monthly Q&A, we have so many questions we don't even get to. So being able to do this once a week is going to be incredible. And I'm thinking, Andrew, here's what I'm saying. This is going be every Wednesday, right? And you and I record on Thursdays. So I think if we get really good questions, which I know we will because our listeners are amazing and they're smart.

0:27:59 Thomas: They're so great. We're going to get really good question. I bet you have a good chance of turning into a deep dive for that week's show.

0:27:58 Andrew: Are Amazing Yeah, You Sure, because I don't need to sleep between Wednesday and Thursday. Why, why Why would I do that at All? No,

0:28:09 Thomas: Exactly. Now, I'm glad we understand each other.

0:28:12 Andrew: Oh, Good, all right.

0:28:14 Thomas: Okay. I think everybody's wondering how to get in on this. And here's what you need to do. You need to get the Stereo app. Step one, go get the stereo app on your phone, whatever the phone you have, it's there. Go search for Stereо. Spelled normal, spelled like stereo. Go find it. And then step two is you got to find us on there. So I am, my username is SeriousPod, spelled normally, all one word. And Andrew is just Torres. He got in on that T-O-R-R E-Z, in on the ground floor there. Find us or just search opening arguments and you'll see probably our event that'll be scheduled. And you

0:28:14 Andrew: Well, Not This Yep.

0:28:46 Thomas: Can RSVP for that event. And that'll be, you know, the Q&A that's coming at you soonest. So you, and that'll allow you to join us every Wednesday, as I said, and you get to be essentially a part of the show and you will be able to interact with us and ask us questions

0:28:58 Andrew: Yeah. So what you actually do is you come and can talk to us live over the stereo.

0:29:05 Thomas: No.

0:29:05 Andrew: Like it's it's super cool. If you

0:29:07 Thomas: I, here's the thing, Andrew, you know how many times we get emails or messages saying like, I was shouting through my phone at you, because people wanted to say, we get that a lot, and uh, you can actually do it on Stereo.

0:29:13 Andrew: We Do Yeah, Don't, interactive, it's a lot of fun. We think you'll enjoy it over on the Stereo app.

0:29:22 Thomas: Get the Stereo app, find us there. You can search Opening Arguments. You can follow us, SeriousPod and Torres are our usernames. Find us, should be easy as can be. And we will see you every Wednesday at 5 Pacific, 8 Eastern for a bonus Opening Arguments every week. I can't even believe this, Andrew. This is incredible. This is going to huge news for everybody, buddy.

0:29:42 Andrew: Except, except for my mattress.

0:29:45 Thomas: We are working on cloning Andrew to cope with this.

0:29:49 Andrew: No, I'm very, I think everybody knows I love doing the show, I love talking to our listeners, I love answering questions, and this is another great vehicle to do that

0:29:57 Thomas: So we'll see you there Wednesday, 5 p.m. Pacific, 8 p.м. Eastern on that stereo app. Come join us.

0:30:05 Andrew: Said, "Oh, the lawsuit was just dismissed for lack of standing." This one is technically correct, but not the best kind of correct. Right. Because the implication, as you said at the very beginning of the show, is, yeah, dismissed for lack of standing means you get a one paragraph order that says, sorry, we're not going to hear anything. You know, go away.

0:30:23 Thomas: Yeah, I don't feel like it. I'm a I'm deep state judge. Don't want to hear it. Is that what lack of sin?

0:30:25 Andrew: Yeah. Yeah, the court didn't interact with Your arguments. This

0:30:30 Thomas: Yeah. And

0:30:30 Andrew: Opinion Is 138 pages long, okay, and not because it's in like 11 billion point font or something, right? Like, it and because this is how most courts rule when they dismiss something on standing, they will say, oh, um, we're going to dismiss this for lack of standing because standing is a threshold question. If you don't have standing, there isn't a live case or controversy, so the the court's done. So if the court thinks you're wrong, but also thinks you lack standing, it will dismiss on lack of standing because that's a prior question. But the court will say in that hypothetical case, hey, we're dismissing for lack ofstanding. But even if we thought you had standing, your claims are terrible. Right. And as it turns out, that is exactly what the Western District of Pennsylvania said here.

0:31:20 Andrew: Right? This is page three of the like, look, Look, You you don't need to read súper far into the case to note that Joe Hoeft is lying to you, because let's Let's look a page three quote. Even if plaintiffs had standing, their claims fail on the merits. Plaintiffs essentially ask this court to second guess the judgment of the Pennsylvania General Assembly, who are experts in creating and implementing an election plan. Perhaps plaintiffs are right that guards should be placed near drop boxes, signature analyst experts should examine every mail-in ballot, poll watchers should be able to man any poll regardless of location, and other security improvements should be made. But the job of an unelected federal judge isn't to suggest election improvements, especially especially when those improvements contradict the reason judgments of democratically elected officials. Now, that is as narrow and, dare I say, small C conservative, right, as you as you possibly can.

0:32:12 Andrew: Right. The court continues. But differently, federal judges can have a lot of power, especially when it's issuing injunctions. And sometimes we might even have a good idea or two. But the Constitution sets our sphere of decision making, and that sphere does not extend to second guessing and interfering with the state's reasonable non-discriminatory election rules. As discussed below, the court finds that the election regulations put in place by the General Assembly do not significantly burden any right to vote. They are rational. They further important state interests. They align with the Commonwealth's elaborate election security measures. They do not run afoul of the United States Constitution. They will not otherwise be second guessed by this court. And then after that are 133 pages, I'm not making this up, analyzing the evidence, saying,

0:33:01 Thomas: We're going to read through all of it right now. OK, no.

0:33:02 Andrew: No. No, We're done, right?

0:33:07 Thomas: We're done.

0:33:07 Andrew: So, So, The claim, oh yeah, yeah, this was just tossed out on standing. Think of how misleading that is When you're talking about 138 page opinion of which which 99 percent is devoted to analyzing the facts as Alleged.

0:33:08 Thomas: OK. Yeah.

0:33:22 Thomas: I mean, the judge is practically like, lest anybody think that this is just a standing issue, let's go through all of this BS and why it's stupid. And also you're dismissed on standing.

0:33:28 Andrew: Yeah. Yeah. Yes. That is that is 100 percent what happened.

0:33:34 Thomas: Wow. See. And so also, like, don't they get an appeal? Couldn't, even under the theory that like, you know, know, these deep state Democrat judges are out to get Trump or something, wouldn't they have been able to hypothetically appeal some of these things up?

0:33:35 Andrew: OK, I I'm glad you asked that, Thomas. This this case, the order was issued on October 10th and Donald Trump did not file an appeal. He had every right to appeal to the Third Circuit. They decided. Yep. Yep.

0:33:58 Thomas: Wait a minute, October 10th. So we're talking about, okay. I just want to, and I know I, my goal on this show is to kind of represent the, the every man here. I think that Uncle Frank's, if I'm being, you know, somewhat charitable to them, I'm not charitable to people who know better, but like, if you are, you're sitting there thinking we had this election there's bags and bags of of evidence of of fake votes or whatever and they tried to, you know, hat in hand, they took it to the court and said, "We got just vans full of evidence," and the court said, "No, I will not hear it." But really, this was what, what these cases are, and I know there's a lot of them, so we can't, you know, you kind of give me the indication of how many of this them or this, this is, they don't quite like exactly how the rules were formed, that they should have fought in June for the election, which had not even happened yet. So October, you'll notice, is before November.

0:34:08 Andrew: Yeah.

0:34:54 Andrew: November, it is indeed.

0:34:55 Thomas: Phoebe taught me that because she has a whole song for the months. These are the months of January, February, March, you know, and she taught me. So this is before the election. So this has not bags and bags of evidence that false votes were paused. You know, the vote counting was paused on election night. This is we think some of these rules about how votes will be counted. We don't we don't like them. And the judges are saying, well, yeah, you had your chance to do anything about that back in June.

0:34:59 Andrew: Oh, yeah, that is exactly correct. And so the final point, right, where this is and again, this is line one. I didn't start with this. I agree. It's not the greatest fit. I didn'T start with THIS because I was picking out their worst case. I started with THIS cause THIS is line 1 on THEIR spreadsheet, right? Right. And the last column you can look at, Uncle Frank, right now in bold text says active. I again, I've uploaded the docket. Right. This case was closed on October 10th and Donald Trump did not appeal. It is not an active case. It is Not About Voter Fraud.

0:35:48 Thomas: Wow. They didn't even bother to appeal. I didn't catch that. Oh, my gosh.

0:35:57 Andrew: Yeah, they got they got to present all the evidence they could have possibly wanted. And the judge went through in a one hundred and thirty eight page opinion before and said these claims are nonsense. Sense, right? I read you all of that. Everything they said about this case is false. And so I'm going to go through the remaining 14. But Uncle Frank, are you a little bit disturbed? Okay, maybe they just screwed one up, right. Maybe the other 14 are knocked down good. Let's look at them. The next one on their list that is identified as an open case is called Trump versus Way. And it is case 20 dash 10753 in the District of New Jersey. And this is another I'm just going to do this one really quickly. This is another pre-election lawsuit. The opinion was entered on October 22nd. The case was terminated on October 23rd. There was no Trump appeal. There There was no voter fraud alleged because October 23rd is still before November.

0:36:10 Thomas: Wow. On to line two.

0:37:05 Andrew: The case ruled on the merits and Trump just lost. That's it. That's their item number two. Again, I'm going to upload the opinion. You'll be able to click on it off of the show notes. Cases three and four are state court cases. They are in ray canvassing observation number 7003. Um, this took a little, this was a little harder to find because state courts are not organized as nicely as federal court cases. Um, and it's super weird that this is listed twice, right? As, uh, items three and four with with two two different captions.

0:37:45 Thomas: Are they trying to puff up the total a little bit?

0:37:47 Andrew: I the old adage of, you know, never attribute to malice what can adequately be explained by stupidity. No, they clearly do not recognize this is going to be a common feature that when you appeal a case, it gets assigned a different case number in the new court. So, yeah, this is the same case on appeal from the Pennsylvania Court of Common Pleas to Pennsylvania Commonwealth Court, it gets assigned a different case number. And because the people putting together this list are idiots, they don't understand that this is the same case with a different number on appeal. The other thing they don't understand is this is the only case they want, right? This is the "we can sneeze on you" case, right. And again, going to link it in the the show notes in Ray

0:37:50 Thomas: Yeah. Never assume.

0:38:37 Andrew: Canvassing observation they said, um, some of our canvassers are being instructed to stand 25 feet back because, you know, they're not wearing masks and that they're screaming at people and we don't want their spittle flecked COVID containing germs all over our election workers, um, and uh, and the Pennsylvania Commonwealth Court said, um, no, uh, we're going to to reverse. We're going to remand for a trial order that says all candidates, watchers or candidate representatives be permitted to be present for the canvassing process and be permitted to observe all aspects of the canvassing process within six feet while adhering to all COVID-19 protocols, including wearing masks and maintaining social distancing, is listed. So, A, again, not a voter fraud case, not a case where they didn't get to present their evidence, a case where they flip and won obviously yeah

0:39:23 Thomas: Yeah. The one case where they won, by the way. The only one fine

0:39:32 Andrew: And obviously the only one literally the only one and one by the way that we said yeah you probably should win this case yeah yeah like I'm sad that poll workers have to get sneezed on but fine right it's obviously not an open case because they're not counting the ballots anymore right I I what what relief would you want this is listed as open on two separate lines.

0:39:37 Thomas: Yeah yeah this is listed as open oh wow this is not a good spreadsheet Andrew bad

0:39:55 Andrew: Right. Yeah. Next. No, it's not a good spreadsheet. So that's one, two, three and four. The fifth case that's listed is Trump versus Boockvar. So, again, we know it's Pennsylvania. That's the secretary of state. Twenty dash zero to zero seventy from the Middle District of Pennsylvania. And and and Thomas, we've hit a milestone because this is the first case in which they actually did allege voter fraud.

0:39:59 Thomas: Spreadsheet wow

0:40:22 Andrew: This opinion, we actually read part of it on the air. This was issued November 21st. We read part of it on the air because it was hilarious. And the court said plaintiffs asked this court to disenfranchise almost seven million voters. This court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election in terms of the sheer volume of votes asked to be invalidated.

One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this court would have no option but to regrettably grant the proposed injunctive relief, despite the impact it would have on such a large group of citizens. That has not happened. Instead, this court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populous state.

Our people, laws and institutions demand more. So, yes, this contained all the crazy voter suppression cases. But this court ruled again, this is a 37 page ruling. This court followed the exact same process as the previous book of our case we talked about in line one, right, they said, yeah, you lack standing, Trump campaign, but, quote, even if plaintiffs had standing they still fail to state an equal protection claim, end of quote, that's on page 26 of the opinion, um, it and again goes through, so plaintiffs, the Trump campaign, had every opportunity to present all the evidence, the court considered it, the court said, we don't

0:40:22 Thomas: Okay

0:42:04 Andrew: Think these claims make a lot of sense, they're a tortuous strain of inferences, they seek relief that we can't grant, but, you know what, even if you did have standing, these are not sensible claims, what you're arguing does not add up to the relief that you want. And again, um, for the first time, uh, the Trump campaign actually did appeal this ruling, they appealed it up yeah yeah they appealled it up to Third Circuit and they lost on November 27th, um, I want you to have put a pin in that Third Circuit loss, uh, but but now I want to tell you, we're five cases, we're a third of the way through, and literally none of the cases that are listed as active on this spreadsheet are actually active, every single one of them has been terminated either because the Trump campaign decided not to appeal yes

0:42:27 Thomas: That was gonna be my question wow are yeah are they trying to say that like there's still time for them to appeal is that why they

0:42:58 Andrew: Yeah they're trying to say, oh, this the courts have only ruled on the injunctive part, right? Like, and so, yeah, we didn't, we didn't stop it, but like, boy, when they consider that evidence, we're going to win.

0:42:59 Thomas: Yeah boy we're this close just just as soon as we put the stamp on the filing. I don't know.

0:43:08 Andrew: Yeah. Yeah, we'll win this close. Yeah oh, you're more prescient than you know on that one. So, so, so put a pin in, we will pull it out in a little bit. Let's go down to, but again, we got two thirds of these left. Maybe, maybe Maybe the next two thirds will be better than the first one. Line item six is in ray canvas of absentee and mail in ballots of November 3rd. It's another state court, but I found it right. This and the next five all have the same caption, right? Because all of those cases were consolidated on appeal. They all made it all the way up to the Pennsylvania Supreme Court. And again, these idiots don't realize that cases that get a different case number on appeal. These But were various challenges in various counties in Pennsylvania about how votes should be counted.

0:44:03 Andrew: So, again, I'm going to quote directly from the Pennsylvania Supreme Court, right. Quote: "These appeals present the question of whether the election code requires a county board of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot's outer envelope, but did not handwrite their name, their address, and or a date." And again, I'm reading you from the Supreme Court opinion, quote, "Where no fraud or irregularity has been alleged." End of quote. Right.

0:44:40 Thomas: Doesn't that sound like no fraud or irregularity has been alleged?

0:44:44 Andrew: It kind of does. But but in case.

0:44:46 Thomas: I'm not a lawyer. I'm just parsing the language. Sort of sounds like that.

0:44:47 Andrew: Yeah. In case you're in case you're not clear, the Supreme Court's, the Pennsylvania Supreme Court says it three more times between pages two and four. I want to read this to you. Right. Guided by principles and for the reasons discussed at length in this opinion, we conclude that the election, the election code does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration but did not handwrite their name, their address and or date where no fraud or irregularity has been alleged. OK, so this is very clearly not a voter fraud case. What, what is it? And here again, bottom of page three, beginning of page four. In these consolidated appeals, petitioner Donald J. Trump for president, the campaign challenges the decision of the Philadelphia Board of Elections to count eight thousand three hundred and twenty nine absentee and mail in ballots.

0:45:44 Andrew: Ballots. The campaign does not contest that these ballots were timely received by the board prior to 8 p.m. on Election Day. It does not contest that they were cast and signed by qualified electors. And, and this is time number three, there is no evidence of fraud associated with their casting. The campaign instead contends that these votes should not be counted because the voters who submitted them failed to handwrite their name, street address, or the date, or some combination nation of the three on the ballot return outer envelope.

0:46:14 Thomas: So on the outer envelope, they might have messed something up.

0:46:17 Andrew: They didn't put the date or, yeah, right,

0:46:19 Thomas: Which, as we all know, a massive conspiracy to steal the election would include forgetting to put the date or something. Which wouldn't make a difference.

0:46:26 Andrew: And this is 8,000 ballots and again which doesn't make a remote bit of difference in Pennsylvania. And again, I, I, I want to, I want to point out, I didn't pick this, this is their spreadsheet, their sixth case that they say is active, this is a 34 and a half page opinion. So, so Trump didn't allege fraud, presented all their evidence, went all the way to the state Supreme Court and lost. And the case, by the way, closed dead. It's an ex parte. Right. Like it. It. It, again.

0:47:00 Thomas: It's an ex parte? What?

0:47:02 Andrew: Oh, yes. I was thinking the Monty Python parrot sketch. Right? Like, you know, it's it's bleeding to my eyes.

0:47:05 Thomas: Oh, okay. I literally was like, is this a legal term that we haven't defined?

0:47:08 Andrew: Yeah. No, no, no.

0:47:11 Thomas: Okay.

0:47:11 Andrew: No.

0:47:11 Thomas: Yeah. Re-experit. You know, nevermind.

0:47:13 Andrew: Yeah, yeah. Sorry, I didn't mean to do a Monty Python deep cut there. That's not, that's a shallow cut.

0:47:18 Thomas: No, that's okay to do Monty Python. It's just, it sounded like it. Cause there's always the ex, you know, like what's that other legal term? Yeah.

0:47:20 Andrew: Yeah. Yeah. No. Ex parte. Yeah.

0:47:26 Thomas: Ex parte. Yeah. It was like it's like ex parte, but ex perit. Okay.

0:47:27 Andrew: Yeah. Yeah. Yeah. This case is an ex parte, right? Okay. Now let's talk about cases seven and eight on the list. So that was, that was number six, right. In rate canvas of absentee and mail-in ballots. It was five different cases, went all the way up to the Supreme Court and they lost. Because the argument wasn't a fraud argument. It was you should disqualify these 8000 ballots on a technicality. And the Pennsylvania Supreme Court was like, no, we're not going to do that. Not open, not fraud. Got to present all your claims. You just lost. Lost. Cases seven and eight are Trump versus Boockvar, 20-3371. I do not know why this is listed on two separate lines. And again, because they're idiots, this is the appeal up to the Third Circuit of the Boockvar case that we talked about at number five, right? Um, it was the Third Circuit affirmed the judgment of the lower court on November 27th. Uh, again, that's in the show notes. You can click on it, Uncle Frank.

0:47:30 Thomas: Okay.

0:48:27 Andrew: And then a weird thing happened and I don't know what's going on. And a court did a thing that I have never seen a court do before. And it's worth mentioning here. This is the pin I want you to pull out from before. This is entry number 107 on the docket. And by the way, just a just a sidebar on this. The the first case we discussed, the first book of our case from from from June had five hundred and seventy four docket entries in in four months. And again, a docket entry is every time you file a document with the court. Right. You file a motion to dismiss. That's a dovet entry. You follow a reply brief. That'S doket entry. The court issues an order. That' a doquet entry to go through. I have active cases right now that are 20 that that are twenty and thirty docket entries that are three years old. Right. Like that's the typical pace of litigation to go through. Five hundred and seventy four docket injuries in four months means that you litigated the ever loving hell out of

0:48:39 Thomas: Okay. Wow. Yeah. No

0:49:27 Andrew: This case.

0:49:27 Thomas: Kidding.

0:49:28 Andrew: Right? Yeah. Yeah. So this this case.

0:49:28 Thomas: Is that Rudy trying to earn his 20K a day?

0:49:32 Andrew: Yeah. For which he was described by Donald Trump as pro bono. So I love that. Yeah, this one entry number one hundred and seven on the Third Circuit docket, which is again, is it just a staggering amount in an appellate case? Right. And some doofus named Brian C. Caffrey and Brian C. Caffrey, or his friends or family, if you're listening, feel free to sue us. Opening arguments, opening arguments. Media LLC is a Maryland limited liability company with its primary place of business in Towson, Maryland. Anyway, so some doofus named Ryan Caffery filed a notice of appearance on behalf of Donald Trump in January. And the court was like, dude, this case is closed. Like, what the hell are you doing?

0:49:58 Thomas: Well, I saw it on a spreadsheet. It said it.

0:50:18 Andrew: It says it's open. That's right. This spreadsheet says it open. And so the Third Circuit had to do this. OK. And again, I just want to illustrate I have only been practicing law for what is now my 24th year as an adult. Right. Right. I have never seen a court do this.

0:50:19 Thomas: Yeah, yeah.

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0:52:18 Andrew: The Third Circuit, quote, ordered that the above captioned case is hereby dismissed for failure to timely prosecute insofar as appellants have failed to file the required case opening forms. That was issued on January 7th after the doofus tried to file his notice of appearance. So let me translate that into into English out of legalese. That is the court going, why are you noting your appearance in a closed case? You know what? What we're just gonna administratively say, whatever you're trying to do, it's not appropriate, right? You would have to open a case for us to take a look at this notice of appearance. And you definitely haven't done that within the time that's required by law, because you know we closed this case on November 27th, so we don't know what you're up to, Trump and Trump's idiot lawyers.

Uh, but no, this case is closed, dead, go away, go home, here's a special order just for you, does not look real. So now we're halfway through this. Does, does not look great, right? But But let's slog through. Last couple, um, Trump v. Biden, uh, this has got another case number 2020 CV 007092, it's another state court decision, this again was not a voter fraud case, this was, you might recall, we covered it on the show, uh, the Trump administration's challenged to the recount in Milwaukee. It was closed and then consolidated with an actual voter fraud case, and then on appeal as their number 10, which is Trump v. Biden, number 2020 AP 2038, went all the way up to the Wisconsin Supreme Court. This was an effort to invalidate 220,000 votes in Dane and Milwaukee Counties, that is, the cities of Madison and Milwaukee, respectively.

0:53:21 Thomas: No.

0:54:10 Andrew: That's where Biden votes are in Milwaukee, right? This is an 82-page opinion by the Wisconsin Supreme Court, and I am going to read the conclusion, right. The Trump campaign focuses its objections on four different categories of ballots, each applying only to voters in Dene County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25th, 2020. Second, it argues that a form used for in-person absentee voting is not a written application, and therefore all in- person absentees ballots should be struck. And then third and fourth, it challenges the use of those ballots in other places where the application was handed out.

0:54:55 Andrew: Again, quoting the Supreme Court, we conclude the campaign is not entitled to the relief it seeks. The challenge to the indefinitely confined voter ballots is meritless on its face. And the other three categories of ballots challenged fall under, fail under the doctrine of latches. So let me very, very quickly explain for Uncle Frank what's going on with that. On the indefinitely confined issue, Wisconsin, the Dane and Milwaukee County clerks went on Facebook in March. OK. And this wasn't a great idea, but they said the Wisconsin law says that voters can declare themselves indefinitely confined, and then you don't have to provide photo ID to get an absentee ballot. Right. Because you're stuck in your house. Right. And so the law is about like elderly shut ins. Right?

0:55:48 Andrew: Right. So you you you're stuck in the house. You don't have to show a photo ID. You can just get an absentee ballot by by declaring I am indefinitely confined. The Dane and Milwaukee County clerk said, well, that seems like anybody who's stuck at home during a pandemic. You ought to declare yourself.

0:55:42 Thomas: Right. Mm hmm. Yeah that seems completely reasonable to me.

0:56:08 Andrew: It does. But remember how corrupt Wisconsin is. So that went all the way up to the Wisconsin Supreme Court. And the Wisconsin Supreme Court said that guidance provides the clarification on the prop of the purpose and proper use of the indefinitely confined status that is required and said no election boards in Dane and Milwaukee County. You have to rescind that advice. You cannot tell people that they can use the indefinitely confined status to avoid giving a photo ID. Right. So, again, victory for your side, Uncle Frank. Right. Voters in Wisconsin had had to show photo ID in order to get an absentee ballot during a pandemic. Kudos to you. Right, but but notice now in this lawsuit, the clerks.

0:56:12 Thomas: Oh yeah.

0:57:00 Andrew: And again, I'm quoting from the Wisconsin Supreme Court, immediately updated their advice in accordance with our opinion on March 31st. And now we go back to what the Trump campaign actually did. And this is you'll note the recurring pattern again and again and Again, quote, the campaign does not challenge the ballots of individual voters. Rather, the campaign argues that all voters claiming indefinitely confined status since March 31st, right, since the date of the erroneous Facebook advice, should have their votes invalidated whether they are actually indefinitely defined or not. Up. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the campaign asked us to apply this blanket invalidation of indefinitely confined voters to only to ballots cast in Dane and Milwaukee counties, a total exceeding 28,000 votes.

0:57:52 Andrew: The campaign's request to strike indefinitely defined voters as a class without regard to whether any individual voter was in fact indefinitely confine has no basis in reason or law. It is wholly without merit. So, yeah, what they said was, oh, look, an official once said a thing that the Supreme Court said was bad. And now we want everybody who ever touched that. But only in Democratic counties. We want their votes thrown out. I, I don't, I mean, I, I find it hard to believe that Uncle Frank is still listening at this point, right? Like, he's has to have gotten up in a huff and walked out, but like it, it's just crazy.

And then the latches, it seems like kind of a weird procedural thingy, right? But latches just means you can't sleep on your rights. And it was another way of saying that all of a sudden the Trump campaign wanted to throw out everybody that used this form EL-122 to get an absentee ballot. Again, only in Democratic counties. And the court was like, uh, EL-1202 was, quote, created in 2010 in an effort to streamline paperwork following the 2008 election and has been available and in use ever since. And then rather dryly notes, regardless of the practice used, the Trump campaign would like to apply its challenge to E.L.

0:58:26 Thomas: Yeah wow.

0:59:15 Andrew: 122 to strike one hundred and seventy thousand one hundred and forty votes in just two counties, despite the forms used in municipalities throughout the state. Waiting until after an election to challenge the sufficiency of a form in use statewide for a decade is plainly unreasonable. Reasonable. So now, yeah, we are 10 cases in. And what we see over and over again is that the Trump campaign presented all the evidence it could possibly want in all of these cases. Right. This, this is an 82 page opinion. Right? Even when there are procedural rulings, they're not procedural rulings in the sense of like, we didn't listen to you. It was we listened to you and boy, you are crazy and your arguments suck and none of these cases are open and and and I'm just going to list the last five, uh, because I

0:59:34 Thomas: Wow well

1:00:09 Andrew: Think

1:00:10 Thomas: That I don't don't know if I care. You know, obviously that, you know, it's it's valid to point out that the spreadsheet is inaccurate and all that. But I think the Rand Paul, you Know, claim of like they were all dismissed on standing technicalities that doesn't really rely on any of them still being open. Happen.

1:00:10 Andrew: Yeah Okay, um, interestingly enough, we, we decided to do this right as we got to the only case that's that that is potentially still open. But I want to tell you why, because it's so funny. This is Trump versus Toulouse Oliver, and it is a New Mexico case. Maggie Toulous Oliver is the Secretary of State of New Mexico. And, um, this, uh, again, uh, utter lie, like the, the first amended complaint presents all their Dominion voting stuff. Check it out, I've uploaded it, you can click on it from the website. Um, paragraphs 12 to 19 talk about the injection of votes, blah, blah. And this was about trying to get an injunction to stop New Mexico from certifying its electors. And obviously, they didn't get the injunction because New Mexico certified its electores.

1:01:13 Andrew: But the case is still open, right? Because, you know, you lost on the injunctive relief, but you could still get a declaratory judgment that the election was, was, you know, a bad election thingy, right? Um, the only reason that this case is still open is because the court has not yet ruled on the Trump campaign's voluntary motion to dismiss. I want to read you paragraph seven and eight of that, and again, it's uploaded, you can click on it, it's in the show notes, that's an actual court document, quote, based on events that have transpired since the inception of this lawsuit, plaintiff has concluded that it does, plaintiff, that means the Trump campaign, has concluded that it desires to voluntarily dismiss its motion against the defendant without prejudice. And then paragraph eight, the next one says, defendant and intervener defendant.

1:02:01 Andrew: That's the DNC opposed dismissing this case without prejudice, but are not opposed to dismissal with prejudice. Right. So again, nobody wants to litigate this case. Trump wants months to dismiss it without prejudice.

1:02:12 Thomas: So Trump is like quitting, like tapping out. And the court, the only reason this still listed as open is because the court is like, we're considering whether or not to allow you to tap out and just get out of here.

1:02:14 Andrew: Yeah. Yeah, right. Right. That's exactly right. Yeah, and then the final four cases, right, three of them are Trump versus Boockvar with a bunch of different captions, and again because they're idiots and they don't realize it. And then the 15th, the very last one, is Trump versus Biden, number 20-882. And all four of these are about that Donald Trump has petitioned for certiorari in some of the previous cases that we've talked about to here, right? So they have petitioned fortiorari cases three, four and six involving Pennsylvania, and they petitionedfortiorari case number 10 from Wisconsin.

All of these cert petitions were filed on January 4th, right, as a Hail Mary in the Supreme Court to say, well, hey, maybe Amy Coney Barrett and the Howler Monkey contingent will intervene before certification on January 6th. Well, they didn't. And not only did they not, but Trump moved to expedite consideration, right, to say, OK, you should decide on this right away. You should stay. And at minimum, you know, we should get a ruling before inauguration. All of these cert petitions were denied in a one sentence minute order on January 11th. Right. And when I say minute order, that means without explanation.

1:02:26 Thomas: Okay.

1:03:51 Andrew: Right. Without any dissenting votes, without any just the Supreme Court gun. No, we're not. We're not going to expedite the consideration. You want to file an appeal, a cert petition. You wanna, you wanna say the Supreme court should consider your case. Okay. We'll consider that. We will distribute that for conference in February and decide then to vote on whether to grant cert in these cases. Um, I, I don't make a lot of predictions on the show. Actually, I make a ton of predictions on the shows. Who am I kidding? Um, uh, I feel reasonably safe in saying that the Supreme Court in February is not going to take any of these cases on appeal, right? It is long since, you know, past the point where, uh. Uh, where anybody would, uh, uh, you know, would care. Um, but, but again, think of the ridiculousness of listing this on your list of cases, right? Yeah, we got a cert petition. Go, wait, you sure do, right? Good Yeah. Like, yeah, I it anybody can file a cert partition, yeah, um, and that

1:04:33 Thomas: Yeah. Yeah, so do I. So do I in my T3BE case. Yeah? Oh, you don't think I have. You don't think I have Torres. I know what you did to the T3B. I don't know what you did.

1:05:01 Andrew: Yep and and that's it of the cases that meet those criteria and say, yeah, could we go in and talk about some of the closed cases. They fit the same pattern, Uncle Frank, right? All of these are cases in which even though the final rulings may have had, you know, legal sounding procedural jargon, we're talking about a comprehensive evaluation of all of your claims by the Trump administration. And in every single one of them, minus the sneezing case, right, that the court said, even if you had standing, this case is nonsense. So, yeah,

1:05:39 Thomas: Can I, okay. Uh, I know, God, we're so out of time. It sucks. Cause it would be fun to do another hour on this, but there's just no way we could get it out today. If Um, let's pretend in a hypothetical world, there was a real case. Like let's say in, I donno, Georgia, Pennsylvania, pick a state that it would have mattered. Let's say there, there, there was something like when when you talked about Lyndon Johnson stealing that one seat that one time, let's say there was something like that. Just hypothetically. I know there isn't. Hypothetically, let'S say there was a massive fraud. How would that go? How would, how would a real actual fraud case of some kind have gone that that was meritorious?

1:06:03 Andrew: That's love that question. So here's here's what you would have done. And this is why the focus has been on Trump's failure to present evidence at the outset of these cases. Right. Because Uncle Frank, if he's still listening, might might be saying, well, you know, look like you bring a lawsuit. Lawsuit, you make claims. And then we go and we get into discovery, and that's where you figure out if the evidence matches up with your claims. You just have to state a plausible ground for relief at the outset of a lawsuit. You don't have to have everything lined up. What if they're hiding some of the stuff? Fair point. But in order to get the kind of relief that you would have needed, what you would've needed was injunctive relief.

1:07:05 Andrew: Something that said, hey, we're going to to shut this whole thing down right now. Right. We're going to stop counting or we're going to start counting again. Right, right. It was inconsistent based on which state they were in. But if you had it, suppose, you know, Thomas, in California, you're running for public office. You have really good evidence that like they're stealing your votes. The votes are counted, you're three points down, but you think you've got good evidence that they've hidden your votes. You would go to court, you would seek injunctive relief. And then the standard for getting an injunction, the two major conditions are you've gotta show substantial likelihood of success on the merits and you have to show irreparable harm.

Well, the irreparable harm is really easy. Right. Was if there were widespread theft like like the Trump campaign has alleged. Right yeah You would you would put that forward and then the court would look at it and go, is this evidence sufficient to justify the relief that you want, knowing that that the relief that they could award, you know, they could say like, oh, well, this does seem to be weird, The fact that no court issued any kind of relief of any sort gives you an indication. I mean, again, we went through it.

1:07:48 Thomas: Yeah.

1:08:31 Thomas: And part of it might just be that in this day and age, like, it's, I don't really, with how elections are set up, I don't really think you could do this kind of thing. It's one thing to talk about Lyndon Johnson. But, you know, part of the reason is like, yeah, if somebody tried to pull out a suitcase full of fake ballots, I mean, I'm pretty sure that would, a, they're not going to do that, and be, even if somehow someone went through the trouble of becoming an election county, know, worker to just to do that, someone would catch it, wouldn't they?

1:09:00 Andrew: Yeah. And again, remember, despite all of this, right, like that, let's think about the Pennsylvania poll workers case. The allegation was never that Trump people were not in the room. Right? Right. The allegation was never that Republican poll watchers were not allowed to observe the process. The allegration was, oh, well, you know, but we wanted to bring in our exact people and we wanted them to stand two feet away from you. And, right, the entirety of the election was conducted under conditions that have obtained for the last half dozen elections, reflections, right.

1:09:37 Thomas: Yeah.

1:09:37 Andrew: In the, it's just, um, it's a situation, and again, all of it boils down to, as I've, as I'm read through these cases and I've read on, you know, garbage right-wing sites that are trying to summarize it, the argument boils down, I can't believe that Trump lost to this guy, guy. And I look as somebody who, you know, as a young kid, I licked envelopes for Dukakis. Like I can believe my guy lost to George W. George H.W. Bush either. Right. I get it. But I can't believe I'm losing to this guy is not really a great standard for a legal case. And and all of the arguments about Dominion, all of them amount to boy, there seem to be times when large groups Groups of votes come in.

And There's a perfectly valid explanation for that, which is big cities have large concentrations of people that overwhelmingly vote Democrat. Oh, and by the way, one of the reasons for that is Republican gerrymandering. Right. Which means that we no longer have, like, like, cities are packed into the same kind of priest, as opposed to being sort of spread out over a particular area. I'm not taking a stance on whether, you know, if you divided out Philadelphia into like five districts that included, you know, a fifth of it went into each of five districts, that included some of the suburbs, right? It might make it worse. I don't know. I haven't looked at that data yet, but the fact that these

1:09:57 Thomas: Yeah. Yeah.

1:11:15 Andrew: Cities tend to all be in the same congressional district and thus all, all tend to report at about the same time, is an artifact of Republican gerrymandering. So, yeah, big cities report all at once. Those that vote tends to be 80 plus percent Democratic. These are not things that we have not been aware of for which we have not been away for decades. And, and that's all it amounts to is, oh, this is clearly an infusion of votes into the process. Well, if by infusion you mean counting. Yes.

1:11:49 Thomas: Yeah. Yeah.

1:11:50 Andrew: But that's it.

1:11:51 Thomas: And at every step, there were people of both parties in the room, right? There had to be.

1:11:56 Andrew: And think about right. The challenge. So, yes, is the answer to that. Right. But think about the challenge. Right on the on the Wisconsin claims. Right? Like what they looked for was anything that looked weird retrospectively. Right, they were like, oh, well, yeah, yeah.

1:12:13 Thomas: Yeah. Which is easy to find.

1:12:16 Andrew: Yeah, well, look at look at all of these all of these mail-in ballots came in. Well, that must mean that the application for the mail-In ballots is easily circumvented. Why have you not challenged it for the past 10 years? Well, because because Trump won in 2016, right? Like that, that's the answer, right, is because we don't like the result we got. So now we're going to go back and claim that things that were perfectly fine to use. Right. And by the way, things I've yet to hear any election truth or answer why uh their congressman gets to take his seat right the entire House of Representatives was elected under the same conditions that you say constitute fraud

1:12:32 Thomas: Yeah. Mm-hmm. Yeah, yep. Democrats lost seats. Democrats lost seats in the House.

1:12:57 Andrew: Yeah yeah you want to go back to the 2018 rules, I'll go back to the 2018 rule, right, like it, we'd, we'd be, we'd have 30 more seats in in Congress, um, it, it, it is, and I hope Uncle Frank is stuck with us to the end. I know where we've lapsed into, you know, where he's dismissing us as impossibly partisan. I think you have to admit Joe Hoft is a bad source. I think you need admit this spreadsheet is deliberately misleading and that the things using it that have used these hyperbolic quotes, right, that have gone all the way to Rand Paul going on George Stephanopoulos, right? That they're just repeating things that either they, they know are false or they haven't done the research that we did on our little podcast. So there's no excuse anymore.

1:13:47 Thomas: All right. Well, we are catastrophically over time. How much can one editor edit in a day?

1:13:50 Andrew: We sure are. Yeah.

1:13:54 Thomas: We'll find out.

1:13:56 Andrew: So I had great stuff to talk about that happened this week that I guess we'll talk about next week. I do want to plug our our buddy Liz Weeks works over at in the law department at Wizards of Coast. And so if if you're somebody who likes magic, which I know you are, Thomas, and and

1:14:14 Thomas: I know. I'm trying to transfer my T3B B scores over to them right now and see if I qualify. I don't know.

1:14:20 Andrew: You're a third year law student. Well, let me just read what they wrote. Wizards of the Coast is looking for a legal intern. This person would be in their third year of law school and interested in topics ranging from intellectual property and contract negotiation to advertising and e-sports. Immediate familiarity with the Wizards franchises is not required, but curiosity and willingness to learn is, so, um, uh, yeah, if if that fits, you give it a ply, yeah, yeah, there, there, you go.

1:14:46 Thomas: Hey, Liz, if you're listening, I mean, free advertising for your position, but I'm a huge MTG fan. Let me know if they want to advertise with us. I'd be happy to. I'll be proud to advertise that product. I love Wizards of the Coast. You know, hey, hit us up.

1:15:02 Andrew: Yeah, absolutely. So everything else, uh, the Mitch McConnell's epic loss, uh, the, the fact that Joe Biden lifted the trans ban in the military, I guess, I guess it's gonna have to wait till Tuesday, man.

1:15:03 Thomas: Yeah. Yeah, yeah. All

1:15:15 Clip: And thank you, Let's go!

1:15:17 Thomas: And now it's time to thank our new patrons at patreon.com/law. You are getting so many wonderful things. By the way, Q&A coming at you very soon. And Oh, our new patrons are Chris Catalano, I don't know what that is. Some nonsense characters. Katy Stuck.

1:15:17 Andrew: Uh,

1:15:39 Thomas: Trump's ineptitude likely killed the voters he needed to win. That is true. True. Zack Bloom, Veronica Cervantes, Michael Rozofsky, Paul Berge, I'm not sure. Carrie munro, Ercia Katlovich and Nichi Morton. Your turn, Andrew.

1:15:56 Andrew: Thank you, too. I voted from Italy, WTF is your excuse? I love that. Drew Williams, brokenspoke, I listened to lawyers all day at work, somehow you got me to pay to do it in my free time, that's the best I changed, I changed this just for OA. Well, thank you, Tori Brletich, Jamie Michael, Kate Whitney, Sleepy Magpie, Robert Martin, Nate V., Some Canadian, Max Zener, hopefully of the Zener card fame, uh, Daito, and Daniel Dawson. Thank you all so much for supporting the show over at patreon.com/law.

1:16:10 Thomas: That's a high compliment. And that's

1:16:33 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:16:39 Thomas: And now it's time for T3BE. The test is is porked. I do have pending litigation over this latest iteration, but I'll go through that. I haven't been able to get a preliminary injunction on the, on the pork test. So I have to still go through with it, but we'll see if we can throw out these, uh, impossible questions. So that's this status of my litigation. We'll, we'll follow up on it, but let's go through with it. Uh, what's question for this week?

1:17:03 Andrew: All right, this is a commercial lease, so you know you get a good chance on this one. I think a landlord commercially leased his building to a woman who intended to open an ice cream shop. The woman installed an extensive amount of equipment in the building, which was permitted by the lease agreement, and began making ice cream. She stored her ice cream in a freezer. However, the building's cooling system broke and her ice creme all melted. She asked the landlord to fix the cooling system, but he refused. She had to temporarily close her store while searching for a mechanic to fix her cooling system. While the building was unusable for the purpose of storing ice cream, the woman remained on the premises to work on new marketing projects. Angry at the landlord for not fixing the cooling system, which has still not been fixed, the woman refused to make the

1:17:09 Thomas: Yeah, I'm sure it'll be easy stuff. Yeah. Yeah.

1:17:56 Thomas: Hmm.

1:17:56 Andrew: Next rent payment. The landlord began eviction proceedings, and in response, the women sued the landlord for breach. Assuming the lease is silent on the matter, which would not be the case, who will prevail? A, the landlord, because the woman had no legal reason for withholding rent payments. B, the landlord, because the woman surrendered the property when she did not pay rent. C, the woman, because the landlord breached the implied warranty of habitability. Or D, the woman, because the landlord breached the covenant of quiet enjoyment by constructively evicting her prior to the withholding of rent.

1:18:15 Thomas: Okay. What the heck? Oh my God. This is a joke. Anyway, further evidence in my Supreme Court petition. Commercially leased his building to a woman who intended to open an ice cream shop. Okay. Extensive amount of equipment, which was permitted. So the problem is like the building cooling system is broken and the landlord refused to fix it. That doesn't seem right. I mean, building cooling. I don't really get why the freezer is dependent on the building's cooling system. I don'T really get that. I feel like a freezer would still operate under those conditions. But let's say it's so hot that even a freezer can't work. It's possible. Uh, temporary closer store there. They do throw in the thing that the woman stayed in there working on new marketing projects, which is interesting.

1:19:27 Thomas: That could be like, well, she's still getting some use out of the building. Um, but it's unusable and it is a commercial lease to open an ice cream shop. So it seems reasonable that she should be able to operate an ice scream shop, but we all know this latest test is not reasonable. It's impossible. But anyway, I'm going to still, I mean, I going along with my old methodology because I think when I get these thrown out, It will be better if I have gone along with my method. And then I can appeal to the judge and be like, look at how I did at the previous 200 questions and then look at this monstrosity. OK, assuming the lease agreement is silent, who will prevail? So it's like she doesn't, she refuses to make the next rent payment, is interesting. That's the next rate rent payment. I don't even know. Does that mean she's not currently?

Currently, that almost sounds like she's still currently fine, but she's not going to pay the next rent payment. So the landlord begins eviction proceedings. And then in response, the woman sues the landlord for breach. So who will prevail? The landlord, because the woman had no legal reason for withholding rent payments. I mean, that's a plausible answer. So that's like, you know, she's Still working on marketing projects, maybe like that kind of theory.

1:19:49 Andrew: All

1:20:38 Thomas: I don't know. It really feels like if the building cooling system broke, and the landlord refuses to fix it, I feel like she should be okay, but we'll see. B, the landlord because the woman surrendered the property when she did not pay rent. That doesn't even make sense because she refuses to make the next rent payment. So that B just doesn't sound like it applies. If that's what it is, then that's really tricky. C, the woman because the landlord breached the implied warranty of habitability. That's tempting. Tempting, habitability sounds, yeah, I mean, that, that, that's a tempting answer. I think the cooling system, it's interesting, because like absent the ice cream shop, it's still like habitable, she still seems to remain on the premises to work on new stuff, so that, you know, that's hard to say it's not habitable, but, but under a commercial lease, is it like commercially, not habitably, I'm not sure. Sure.

1:21:32 Thomas: I'm not, uh, maybe D, the woman, because the landlord breached the covenant of quiet enjoyment by constructively evicting or prior to the withholding of rent. So that's interesting, because that is kind of what happened. The landlord breached the covenant of quiet enjoyment by constructively evicting her prior to withholding of rent? So that is along the theory that like just the, not fixing the cooling system is kind of that. Honestly, I, it's going to be between C and D, and it will just be impossible to know which thing this falls under, because this is an impossible test. I think it'll be like, well, is it habitability? Is it the implied warranty of habitability, or does that not quite fit? And really it's the covenant of quiet enjoyment by constructively evicting her prior to the withholding of rent.

1:22:21 Thomas: And honestly, I'm kind of leaning toward D because habitability, I think you would say the woman remained on the premises and she's working on other stuff. So it's still habitable. Whereas D is more like the covenant of quiet enjoyment. You know, you've, you even that doesn't fit. I don't know by constructively evicting her. So that's the language of D fits a little better. Like he's making it so that she can't operate her, her ice cream shop. So that'S effectively evicting HER prior to withholding rent. I'm going with D. That's my final answer. Done. D. D. answer. D.

1:22:56 Andrew: And if you want to play along with Thomas, you know how to do that, just share it, this episode, on social media, include the hashtag T3BE, include your guests, your reasons therefore, we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortune not guaranteed.

1:23:09 Thomas: Andrew, one more time, I know it's been a long episode, but we just gotta remind people one more time, Wednesday, every Wednesday, so starting Wednesday, we will be on Stereo! Go get that Stereo app right now, search for Opening Arguments, follow at Torres on Stереo, follow at SeriousPod on Stereo, and we will see you all, we are so excited for that Q&A on Wednesday, that's gonna be a ton of fun, and every Wednesday thereafter, so come join us on Stereo, one more reminder, go do it!

1:23:19 Andrew: Yeah, I can't wait, we are launching live every, every Wednesday at 8 p.m. Eastern, 5 p.m. Pacific.

1:23:46 Thomas: Our show. Wow. Thanks so much for listening. Of, I, the, just want to let you guys know we really care about you, and we thought this was such a good topic to cover. If you see anyone making this claim that Trump's lawsuits were dismissed all on standing and technicalities, please refer them to this show, please, because I think Andrew did a fantastic job explaining that. And we have so much more good stuff coming at you on Tuesday, Sunday, if you're a patron. We'll see you then.

1:24:11 Clip: He's not even a lawyer and he's kicking your ass.

1:24:44 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah 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.