OA515: Who Governs the Governors?

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 515, I am Thomas, that's Andrew, how are you doing sir?

0:01:24 Andrew: I'm fantastic, Thomas. How are you?

0:01:27 Thomas: Doing well, we have too much to talk about today, as usual. I am excited for this topic, I think it's going to be very informative. We've got some gubernatorial misconduct and other things, it's basically a governor show and a how do you get rid of governors or not get ridof governors, etc., because that's in the news lately and it's incredibly important, I know the recall in California is, I'm, I'm a little nervous you know, and the thing is yeah And thing is, I don't love Gavin Newsom, not a big fan, but uh, you know, it's it's not a good thing to do when you're not a big fan. And there's a lot of negatives. Let me rephrase. You know what is a bad thing to do when you are not a big fan of a Democrat, Andrew?

0:01:54 Andrew: You should be.

0:02:12 Andrew: What would be a bad thing to do when you're not a fan?

0:02:13 Thomas: Allow a Trumpist Republican to take over because you're slightly mad at a Democrat. That would be not the way to solve that, don't you think?

0:02:20 Andrew: So so what you were saying, I mean, I just want to make sure that I understand, right, because, you know, this is an informative program that if, say, a large percentage of the state were outraged at what what seemed to be a moment of genuinely poor judgment during lockdown, during a pandemic, that maybe electing somebody that thinks the entirety of COVID is a hoax would be a bit of an overreaction to that.

0:02:25 Thomas: Mm-hmm. Sure. Mm-huh. Oh, the word I was... Right out of my mouth. And overreact. That would be doing a little too much. That would be going a little too far. Maybe not the best way to handle that. So yeah, but why I'm immensely concerned, and we'll get to it, is, you know, that very well could happen. We could have, if things don't go well, if we don't keep on it, if we don't keep active and we don't vote, you know I'm speaking for Californians, of course, in this recall, we could have a Trumpist Republican in charge of California, and that would devastating. So I think we need to find out why, how, all the stuff. And A. Torres over there has the signature deep dive for us. So let's get to it.

0:02:53 Andrew: All right, I

0:03:26 Clip: Down the law, down the law.

0:03:30 Thomas: So first up is though, Andrew Cuomo, who, okay, I genuinely want him gone. Like genuinely, genuinely, genuinely. I still, I don't know what you're going to tell me about how this works, but it sounds really bad and he seems like a real creep. So what's going on there?

0:03:45 Andrew: Yeah, Let's talk about Andrew Cuomo, he is reportedly the subject of an FBI investigation, as well as two separate state investigations. The against Andrew Cuomo include reports that his administration mishandled or hid data regarding COVID-19 deaths at New York nursing homes. FBI allegation, and again, that has not been made public, so we have to go by reporting on that, focused on allegations that the Cuomo administration provided false information on those nursing home deaths to the Justice Department. And then State Attorney General Tish James, rock star, conducted an investigation that resulted that in a public report that was released last week and that concluded I

0:04:32 Thomas: Jeez. Also Tish James, does she have a Patreon I can subscribe? Would she give me bonus content? Like, oh, here's some extra indictments that the only for patrons.

0:04:36 Andrew: Can think of A few, yeah. I can't think of a few that should be only for patrons. That report, which got a lot of the public attention, concluded that that Cuomo had sexually harassed 11 women at, at standards that violate federal and state law, right? So we're not, yeah, exactly.

0:05:00 Thomas: So not just and again, not any saying any of this is acceptable. None of this isn't acceptable, but it's saying even something further to say this violates the law.

0:05:02 Andrew: None of us are downplaying, yeah. Yeah. Yes.

0:05:10 Thomas: I mean, that's that's significant when you hear the right wingers or whoever overreacting like, oh you can't even compliment someone anymore. It's like, no, that's not this. I'm pretty sure compliments aren't against the law, Andrew, unless I missed being passed. Yeah, so this is a very serious thing.

0:05:24 Andrew: They are not. They are not, yes. In the wake of that state attorney general's investigation, Joe Biden has called upon Andrew Cuomo to resign. Most prominent Democrats have called upon him him to resign. And so far, as of this recording, he has refused to do so, sort of huddled together and with other members of his family. We do not have time to go down the rabbit trail that is Chris Cuomo and CNN. Yeah.

0:05:52 Thomas: Hey, by the way, I know, And apologies for the interrupting, let's not skip lightly over the president of the United States calling on a member of his party who's a governor to step down due to this misconduct. That's a major, major step. And don't you think that's a sign that the times are changing? And at least, by the way, at least if you're a Democrat, if you were a Republican, Trump would have, you know, nominated you for Supreme Court justice or something.

0:06:07 Andrew: Yeah, it absolutely is. Yeah to the to the Supreme Court.

0:06:17 Thomas: Yeah. But was very impressed by that and proud to be a Democrat in that moment.

0:06:18 Andrew: Absolutely. Absolutely. Agree 100 percent. A number of folks emailed and asked us, OK, so, you know they're recalling Governor Gavin Newsom in California. If Andrew Cuomo decides to remain obstructionist, can we recall him in New York? And the answer is no. No, you can't. The U.S. Constitution does not provide for a right of recall to American citizens. Interestingly, as I was doing this deep dive, that option was considered during the drafting of the Constitution in 1787.

0:06:39 Thomas: Hmm. Really?

0:06:55 Andrew: Yeah, there were versions of the proposed post-constitution that were circulated that had a recall provision in it uh that as you uh for

0:07:03 Thomas: For whom, though? I mean, for like, okay, gotcha.

0:07:06 Andrew: For the president and members of congress yeah oh

0:07:09 Thomas: But that still wouldn't have necessarily affected.

0:07:09 Andrew: Boy supreme court would sure be nice wouldn't it

0:07:12 Thomas: Yeah. But also that necessarily wouldn'thave necessarily affected the states because it seems like they were pretty strongly federalist back then. They wouldn't been like, you can also recall your governor because of the Constitution. That wouldn't happen.

0:07:14 Andrew: Correct correct yeah that would have been impossible to imagine uh the the newly formed reformed, relatively weak central government of the United States, being able to recall a state governor. I will add, as kind of a flash forward, that part of the reason I'm emphasizing this is that virtually every state that allows recalls, like California, does not allow you to recall your statewide federal, it does not allow you to recall federal officials, right?

0:07:27 Thomas: Right. Oh, interesting.

0:07:55 Andrew: The members of Congress or the Senate. And so, yeah, we cannot recall Dianne Feinstein in California. Recall is not, put a little bit of an asterisk by this. This. Recall is not generally available for most or all state officials in most states. Let me break down what I mean by that. Only 11 states prohibit or have no laws that speak to recalls whatsoever. New York is one of those, right? Of the other 39, most of the states that that are listed as not prohibiting recalls have provisions that allow like you to recall your county commissioner or, you know, your local assistant dog catcher or what have

0:07:55 Thomas: Okay. Okay. So no Feinstein. I hope there's some old-timey ones that are like, if you get together and run them out on a rail, they are officially hereby. You know, I want to ask a question though. What's the difference between recall and impeachment? And why do we have these two different concepts? Like why isn't the California law just an impeachment law of a governor?

0:09:01 Andrew: It's, that's an excellent question. I want you to put a pin in it.

0:09:04 Thomas: Okay. Pin put.

0:09:06 Andrew: Pin put. Got 39 states that have some kind of recall, but of those, 22 are really kind of, as you point out, these sort of old-timey provisions that allow you to remove a local elected official. And those 39 states, most of them are procedures that allow some kind of recall of some kind of local official for malfeasance. And I imagine, I started looking at this and it was just impossible to get systematic data.

I imagine at least until the era of Trump, that this is probably like bipartisan removing a local corrupt official or somebody for incompetence, right? That seems to be the pattern. Now, 17 states do have robust recall statutes where all or nearly all, right, some states like California exempt Supreme Court judges who are elected, it, But right? Some states do allow you to recall elected judicial officials. But in these 17 states, you have a robust recall and some require cause, like California, but some do not. And in some states, like Carolina, that cause can just be, I don't like their policies, right. So, So, you know, this is not a huge, you know, steep hill to climb. Those states that allow recall are Alaska, Arizona, California, Colorado, Georgia, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, North Dakota, New Jersey, Nevada, Oregon, Washington, and Wisconsin. So a pretty interesting mix of states, right?

0:10:47 Andrew: Like not just blue, some, you you know, deep blue California, purple Arizona, you know purple Wisconsin.

0:10:56 Thomas: Yeah. It doesn't strike me as an inherently partisan thing one way or the other.

0:10:58 Andrew: Yeah, yeah. I don't think that it is. Those are your states in which recall subjected to the will of the voters is the remedy. You asked, it's time to pull the pin. The difference, yeah, the difference between between recall and impeachment for removing officials is that impeachment is out of the hands of the public, right?

0:11:12 Thomas: Oh, okay. I remembered this one this time. I have it right here.

0:11:23 Andrew: Yeah.

0:11:22 Thomas: You're right. Okay. That's, yeah.

0:11:24 Andrew: And so, no, it's a great, it is an absolutely great question. And, you know, look, there is, this would make an excellent philosophers in space debate as to whether, you know, an elected official should continue in office having temporarily lost the mandate of the folks who put him there in the first place, or whether an elected official ought to be removed only by their fellow elected officials, Thus, right? Arguably, increasingly, you raising the bar with respect to that. So I don't know, I right? Can certainly see arguments either way. What's available here is impeachment. And what is really interesting is, right,

0:11:24 Thomas: It's kind of what I figured, but I just want to ask the question.

0:12:09 Thomas: Sorry.

0:12:09 Andrew: We know here

0:12:10 Thomas: When you say here now we're talking about cuomo just

0:12:12 Andrew: In New York with respect TO Andrew Cuomo. Yep. No, no, no. That's a great qualification, right. This is Section 24 of the New York State Constitution. And I'm going to read it to you because of what is interesting are the areas of overlap, left, but also the areas that are missing. So here we go. The assembly shall have the power of impeachment by a vote of a majority of all the members elected thereto. So that is the resolution of impeachment begins with a majority vote in the New York State Assembly, the equivalent of their of the House of Representatives, just like a real impeachment, a real impeachment, just like

0:12:13 Thomas: Making sure okay

0:12:49 Andrew: In a federal impeachment of a president.

0:12:51 Thomas: It's just like an impeachment for grown-ups like at the big big boy table the big yeah

0:12:54 Andrew: Yeah. Yeah, like Donald Trump. That's a a great comparison. All right. Next, the court for the trial of impeachments shall be composed of the president of the Senate, the senators, or the major part of them, and the judges of the Court of Appeals, that's New York State Supreme Court, or The Major Part of Them. Side note, what does or the Major Part Of Them mean? Nobody knows.

0:12:56 Thomas: Yeah really so it's not just like a quorum or some crap oh

0:13:19 Andrew: Yeah. Well, yeah, it means that there must be a quorum, but does it mean, yeah, that some people can opt out? It seems to mean that some people can op out. As far as I can tell, no one has ever opted out of participating in what used to be called the Court for the Trial of Impeachment and the Correction of Errors. And if you imagine that every other word in that sentence is capitalized because it was established in 1777, pre, yeah, predating

0:13:25 Thomas: Geez major part yeah 60 66 yeah and some f's or s's and some yeah oh

0:13:56 Andrew: The U.S. Constitution by a decade, by the comprise. Way, So it's not just the Senate. It is the Senate plus the state Supreme Court, which is kind of a weird twist, but okay, there you go. Okay. Then it says, on the trial of an impeachment against the governor or lieutenant governor, governor, neither the lieutenant governor nor the temporary president of the Senate shall act as a member of the court. That makes sense. You're the next person in line, right? We don't want you in there going like, yes, absolutely, get that person out. That would make me, it would make me governor? Really? I had no idea, right, so they take away your vote. Then it says, no judicial officer shall exercise his or her office after articles of impeachment against him shall have have been proffered to the, shall have been preferred to the Senate until he or she shall have been acquitted. Okay. So that's really, really interesting, right? Like that's not a provision that is in federal impeachment,

0:14:06 Thomas: It is weird yeah

0:14:51 Andrew: Right.

0:14:51 Thomas: So it's like you you stopped doing your job interesting

0:14:51 Andrew: Yeah, you, so in other words, right, if you were to bring articles of impeachment against a member of the New York court of appeals, they would have have to refrain from voting until acquitted by the court for the trial of impeachments. Sure would have been interesting at the federal level. Yeah. And again, you know, is that a thing?

0:15:14 Thomas: Yeah that would be right for abuse though

0:15:18 Andrew: Of course, it's a thing that would be right for abuse. You And, know, and again, it is only limited to a judicial officer, right? Even in the New York State Constitution, even in the 18th century, they were like, well, we can't have this be against the governor, right? Yeah. Okay. Then it says, "Before the trial of an impeachment, the members of the court shall take an truly and impartially to try the impeachment according to the evidence, and no person shall be convicted without the concurrence of two-thirds of the members present.

Judgment in cases of impeachment shall not extend further than to removal from office or removal from officer and disqualification to hold and enjoy any public office of honor, trust, or profit under the state, but the party impeached shall be liable to indictment and punishment according to law." Notice, by the way, that is the exact same language that is in the federal constitution 10 years later, right?

So we might have an interesting discussion back and forth with our good friend Seth Barrett Tillman about the the definition of "public office of honor, trust, or profit under this state, because it clearly means governor in New York. And I

0:15:18 Thomas: Yeah okay yeah yeah

0:16:27 Andrew: Think that's another good piece of evidence that contemporaneously it would have meant president when applied in the U.S. Constitution. But that's a topic for another day. So do you notice what was missing in Section 24?

0:16:27 Thomas: Probably

0:16:40 Andrew: What was missing was any standard, like high crimes and misdemeanors. Yeah. So

0:16:40 Thomas: Not yes right right right Right, which it seems like they cut to the chase of, like, yeah, that is whatever they decided is already, like, I don't, you know, I was, I was going, gonna mention it a minute ago when you said they don't have to have cause or whatever, the cause can just be, and my first thought was, what does it matter if it says you have to have cause? Like, in the end, what seems to decide these things is the people deciding it, so does it add even anything to a law, to a constitution, to whatever, to say "for high crimes and misdemeanors" if the same people who are alleging them are also deciding if they are high crimes or misdemenas, you know, know.

0:17:19 Andrew: What look, the answer to that is an asterisk, right? And here's why. Because you, Thomas, have come at the law from a very, very realist perspective, right? A 1930s kind approach to the law that says, yeah, you know what? Let's not pretend that these high-minded theories carry the day. The law is ultimately whatever the lawmakers and those who interpret that say that it is. If you're asking, does it provide additional substantive protections? I think the answer is no, for the reason that you've described. Does

0:17:24 Thomas: Well Yeah.

0:18:00 Andrew: It change the technical procedures? It It certainly does. Right. And could you argue then that that may have an effect in terms of the difference between signing on to, are there hypothetical?

0:18:15 Thomas: Yeah. And you're right. I suppose you're Right. It also sets a norm kind kind of like from the beginning, you know, like, okay, this is kind of what we intend by allowing this impeachment ability. And that does, well, I guess once we hit 2020 or 2018, I was eventually might fall apart, but like for the time being, this Is the norm we're setting.

0:18:16 Andrew: Yeah. Yeah.

0:18:33 Andrew: That's exactly right. So here's how you impeach Andrew Cuomo in New York. And let's talk about procedurally how that will take place. I told you it would be before the court for the trial of impeachment and the correction of errors. That court for the correction of errors was abolished by the state constitution in 1846. And so that jurisdiction, just think it's amazing that initially this impeachment court that consists of the senators plus the Supreme Court initially did two things. They presided over impeachments and they served as the highest appellate court in which you could challenge various New York Court, which were their state trial court opinions. That seems insane. And in 1846, New Yorkers got together, amended their state constitution, took out the correction of errors, and created the New York Court of Appeals.

Um, but initially, right, the senators of the state of New York for 70 years uh also were the state's highest judicial body. That seems bizarre to me. Anyway, um, but now what you have is you have left over is the court for the trial of impeachments, and since 1847 uh that is the lieutenant governor, although not in this case because the governor is subject to being impeached, the chief judge of the New York Court of Appeals, the associate judges of that court, and the members of the state senate. So procedurally, how does that work? First, you get a resolution coming out of the assembly, the New Yorke State Assembly. That is 150 measures. That only has to pass by one vote, right? So, right, 76 to 74, or 75 to 74 if somebody sits out, right.

That is the equivalent of the House of Representatives passing a resolution of impeachment. That would mean Andrew Cuomo is impeached, and he would go to that high court impeachment. Um, did the math and if everybody sits who is allowed to sit, that would be 69 people, The senators and judges.

0:18:52 Thomas: Hmm.

0:20:36 Andrew: And of those 69, you would need two thirds or 46 to convict um if convicted lieutenant governor Kathy Hochul um who has run with Cuomo twice and I I that she seems fine so let's you know um Kathy Hochul would would uh succeed uh to the governorship, and she would have the power to appoint a new lieutenant governor. So you might recall that that happened when David Paterson succeeded Eliot Spitzer in 2008, when Eliot Spitzer resigned. Of course, also is on the table for Cuomo, but so far he's ruled that out. As we read, the punishment of impeachment would bar Cuomo from holding any office of profit or trust under the state of New York, That right? Is interpreted as a statewide political office. But he could run for non-statewide office

0:20:42 Thomas: For 20. Oh, dang.

0:20:52 Thomas: Hopefully not sexually harassed.

0:21:40 Thomas: Sure.

0:21:40 Andrew: Again, including including running for the New York State Assembly. Has happened. The last time, in fact, that a New York governor was impeached, he turned around and ran for the State Assembly and won that seat. So it would prohibit Cuomo from ever serving statewide again, would not prohibit from running for Congress, running for the House or the Senate or for the state legislature or for any local office. But he couldn't be attorney general or, you lieutenant governor or governor again. So that's what's in deck for Andrew Cuomo in New York.

0:22:20 Thomas: Couple of thoughts. For one, I, you know, I hope he's he needs to be impeached or I think maybe he would eventually resign, possibly, although he's certainly not shown any indication that he wants to. But I what are you predicting is happening here?

0:22:20 Andrew: Yeah, yeah. Yeah.

0:22:35 Andrew: I share your predictions, right? Like, I think, I think that is right now, considerable energy being devoted behind the scenes to tell Governor Cuomo, look, you know, you've got to resign. Otherwise, we numbers to proceed to impeach you. Um, yeah.

0:22:53 Thomas: Yeah. Okay, final thoughts. This guy's a creep, and he sucks, and also he harassed the victims into not coming forward. You know, there's a lot coming out. We haven't gone into in-depth on it, but he sucks. My vote is for impeachment if I get a vote. I didn't hear if I did in the rules, but I also didn't hearing you tell me I don't get a vote in the impeachment, so maybe I do, who live in California, yeah. Yeah.

0:23:13 Andrew: Yeah. Prominent podcasters. I mean, if this were being written, yeah,

0:23:17 Thomas: And in 1740. Okay. Well then let's move on to California.

0:23:17 Andrew: In, uh, in I think this is a great kind of bookended precautionary tale, because if you're sitting here thinking like, well, if the state legislature is bought and paid for by the Cuomo machine in New York, right. And that's, and maybe I should have have taken that up as the, you know, as a devil's advocate position, That says, right? Look, you know, the Cuomo family is incredibly politically powerful in New York. Maybe they can intimidate the state legislature into silence and maybe nothing happens. And if that's the case, people will be very, very mad. And rightfully so. You and I will be mad at that. And New York has on on three separate occasions in a bipartisan way, moved to add a recall measure to its state constitution. And since New York, I think demographically, in terms of being a deep blue large state, draw some lessons from California,

0:23:28 Thomas: I'm

0:24:21 Andrew: Maybe we should look to see what recall has done done in California, as kind of a blueprint for would this be a good idea in New York, 1911, voters approved the California Constitution and Section 2, which has seven 11 subsections that are devoted to recall elections. Since 1913, the first recall attempt was in 1913. It was successful. Since then, there have been 179 recall attempts, 55 governor, 50 at the state senate, 50 in the state assembly, and then a smattering of others. 11 collected enough signatures to qualify for the ballot.

0:25:10 Andrew: And of those 11, the official was recalled in six instances, right? So batting a little over random chance right now, six out of 11.

0:25:19 Thomas: Yeah. How many signatures are required? Because this is a key portion of what I'm mad about. You're going to do it. Okay, yep.

0:25:20 Andrew: Yeah. I'm about to get there. Yep. So what we have are historically two successful recall attempts from 1913 and 1914. So Senator Marshall Black, a Republican progressive, was recalled and was replaced by a Democrat prohibitionist, Herbert C. Jones. The next year, Edwin Grant was recalled and replaced by Edwin L. Wolfe, and those were both senators. And then there were no efforts to recall anybody that qualified for the ballot statewide for 80 years. So we went from 1914 to 1994, where there were efforts to recall a couple of different members of the assembly, Assembly, the lower house in California, too successful.

0:26:23 Andrew: And interestingly, both were Republicans, Doris Allen and Paul Horcher. They were both replaced with other Republicans, Gary Miller and Scott Baugh. Then put a pin in Governor Gray Davis in 2003, because we're going to talk about that at some length. Then a couple of other efforts until to 2018, in which State Senator Josh Newman, a Democrat representing the 29th Senate District, which covers L.A. County as well as parts of Orange and San Bernardino, was successfully recalled and replaced by a Republican, Ling Chang. So throughout history, and Gray Davis, by the way, was successfully recalled, that was the election that Arnold Schwarzenegger won. Right? So Democrat replaced by Republican. That tends to be the case, right, of the six successful recall efforts. Four of them involved switching parties. Three involved switching from a Democrat to a Republican. So does it work? You begin by filing a notice of intent to recall petition. That has to be signed by 65 people. That's not a hard thing to do.

0:27:33 Andrew: Yeah. You then file that with the Secretary of State.

0:27:33 Thomas: Yeah, I guess that's just like the first barrier. So it's like, all right, some, asshole that, you know, it's just like, you know a sovereign citizen somewhere because they there's no way they have 64 friends so way

0:27:42 Andrew: Right, Right. Yeah, no, that's right. But we could pretty much generate a recall petition, you know, from the folks staying at the Puzzle and a thunderstorm house here, right? Like, 65, not a high barrier then, um, to actually get onto the ballot. Signatures have to do two things. The first is they have to equal a percentage of the total number of votes most recently cast for that office. So executive officials, like the governor, it's got to be 12% of the total number of votes.

0:28:22 Andrew: For state legislators and judges, it's got to be 20%. Addition, I and know you recall when we did the insane decision in Mississippi in which having lost a congressional district, it was now impossible for a statewide ballot question, uh, to qualify in in Mississippi. Um, California's recall also has that um distribution requirement, and this is Section 14, and the way that it's written is that the petition must include signatures from each of at least five counties, so it's got to be got to b5 no matter what, equal in number to 1% of the last vote for that office in that county. So that's not a huge diversity requirement, but basically says, you know, you can't

0:28:20 Thomas: Too low way too slow yeah just, five

0:29:15 Andrew: Just, just five counties. Right.

0:29:16 Thomas: Counties california has like 800 counties

0:29:20 Andrew: I, yep.

0:29:20 Thomas: We have a zillion of them I can't remember the number but it's at least 50 something this is not enough counties in that when when we talked about the Republican one, it's like, well, there's three counties and California is a little different.

0:29:22 Andrew: Yep. Yeah. Yeah, right. Yep, go into, you know, sort of greater depth on some of the local requirements, again, I think the theme that comes through here is putting the question, yeah, putting the question on the ballot is not a high barrier. So then the Secretary of State determines whether you have sufficient signatures to hold a recall election.

0:29:43 Thomas: 58, by the way. That was, yeah. Okay.

0:30:02 Andrew: I

0:30:01 Thomas: Sorry, but just think about that. You need 12% of the signatures or essentially signatures equaling 12% of the last voted thing, which I would argue is way too low. But do the percentage math on the counties, five out of 58, that's even less, what that needs to be updated. I don't know when the counties were created or if this, you know, was different back then, but like you should need it out of at least like 10 counties, don't you think?

0:30:31 Andrew: Don't I agree entirely that these proceedings make it way too easy, especially when we talk about what happens once the question gets to the ballot, right, which we're we're almost at right so no

0:30:42 Thomas: I know I keep interrupting you but the main the main anger of this As a Californian, has been this law, this mechanism is outdated with today's environment. You know, like, maybe it would have made sense in 1913 or something, but in today's polarized internet environment, this is way too low a requirement. Uh, and the biggest thing is this is costing millions and millions and billions of dollars that it automatically because some, you a whole anti-COVID masking requirement, people can get enough people to sign a piece of paper, it costs the state millions of dollars and uh goes through all this. So sorry about that, I'm a little little

0:30:45 Andrew: No no these are great questions yep Oh, Oh,

0:31:22 Thomas: Peeved at all this

0:31:23 Andrew: Wait till you hear what what happens, you'll get even angrier. So when you file that notice of intent, remember, California is a cause state. You have to say, we are recalling Governor Gavin Newsom because of the following reasons, right? And then within seven days of receiving that notice of intent the elected official gets to write a 200 word reply, an answer, a statement of defense. And both the statement of intent and the statement of defense are published on the ballot, right?

0:31:24 Thomas: Okay oh wow

0:32:00 Andrew: So every sample voter gets to see we are recalling the governor because X and the governor's response is Y, right. So, you when I answered that question with an asterisk of does it really matter, right, here's how procedurally it does matter. It shows up on the ballot.

0:32:00 Thomas: Sure yeah yeah that makes sense I like that yeah

0:32:16 Andrew: Yeah. Then Secretary of State looks at the total number of signatures that you have and determines which one of these are valid. And if you've ever signed a petition for anything, right, you know, petition gatherers will stand, you know, in public areas and, you drunken idiots will sign up in the name of, you know, Daffy Duck or Sven Horstborgen or, you know, whatever. And if it's not a real person, or more critically, and this is why it goes to the Secretary of State, if the person is not a registered voter in the jurisdiction of the official against whom the recall attempt is being pursued, then that signature will not be counted, right? So, right, all you have to be is a registered vote in California. But if you're not registered to vote, right?

I don't care how many red MAGA hats you have, your signature, not valid. So what that means is you overdetermine the number of signatures you sent, right? And in this recall, know, they you sent 1.7 million signatures, like 400,000 were rejected. Oh, no, I'm sorry. That was in the Gray-Davis recall. They gathered 1.6 million signatures. Signatures, 1.35 million were certified as valid. Um, so, you that gives you an indication of, you

0:32:17 Thomas: Yeah mm-hmm okay

0:33:34 Andrew: Know, yeah,

0:33:34 Thomas: It's a higher batting average than I would think actually yeah

0:33:36 Andrew: I, I bet there's more scrutiny now they batted at what about 90% in that one. And, um, and I bet they're 75% now. So that you have enough signatures now. Now, that means under the state procedures, you schedule an election at that point in time. And Right. The election candidates and you have to in order to be considered, you have to file your statement of intent to be a candidate at least 59 days before the date of the recall call election. Then the ballot's prepared and sent out. And the ballot has two questions. These, again, are mandated by California election law. It cannot vary in any way. The ballot, the first question says, shall Gavin Newsom, right, shall the name of the officer sought to be recalled, be recalled parenthesis removed from the office of governor of California or title of whatever the office is.

0:34:35 Andrew: That's a yes, no question. And if the answer to that question is no, then nothing happens, right? If the answer is yes, then under that, the ballot will have a list of the candidates that successfully placed their name on the ballot. And hilariously, an empty space for a write in, but no write in votes are allowed to be counted under California law. Yeah, no. And yeah.

0:35:01 Thomas: What weird probably not time to go into that one yeah

0:35:05 Andrew: And here's the thing. And I know you lived through Arnold Schwarzenegger in 2003. the answer to do we recall is yes, the person with the plurality of votes, the highest number, need not be a majority, wins. That's it. There's no runoff. There's nothing. It is, oh, highest ranking person of this huge list, which includes, right, Democrats, Republicans, Green Party, Independents, Libertarians, people who wrote no party preference, right?

0:35:26 Thomas: Yeah right the rent is too damn high guy uh oh

0:35:44 Andrew: Yep. Lunatics. On this ballot, there are 46 candidates, okay?

0:35:51 Thomas: Ah, jeez. This is the worst system in the world.

0:35:54 Andrew: It is as bad a system as I can possibly imagine, But you right? Can, and we will list it included in the show notes. It runs just over two pages, and people are identified like this. Sam L. Gallucci the left, then Republican on the right, that's the party, and then under it, you get a one-line description of who you are, and this says pastor slash CEO slash consultant.

0:35:57 Thomas: It's designed for bad outcomes.

0:36:24 Thomas: Nope.

0:36:24 Andrew: So not a lot of information. Information.

0:36:28 Thomas: That's a no on that guy. Opening arguments is brought to you by Cuts Clothing, they are celebrating, this is super cool, they're celebrating their fifth anniversary, congrats, Cuts clothing, I, those are so fun, those milestones and anniversaries, I was just realizing, reminiscing that last summer, 2020, I hit my 10-year podcasting anniversary, because I started in May of 2010, and then just in thinking about it, I I was like, oh, I already passed 11 years because that last year went by a little fast, went by little quickly in a weird way and also is kind of a haze.

Now I've passed my 11th year anniversary of podcasting. But while you're getting nothing from me for my anniversary from CUTS, guess what, to mark five years of creating clothing that can be dressed up or down for anything, CUTS is having a month-long anniversary celebration. Get ready ready, and stay ready for any occasion with clothes that combine classic designs, universally flattering fits, and next-level textile technology. GQ Magazine calls the Classic PYCA Pro TriBlend T the only shirt worth wearing. Those are bold words, but they live up to it, so check it out.

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0:38:46 Andrew: Hey everybody, this is an ad for blueblocks.com slash OA. Look, you know I sit at my computer all day. You know I work deep in the night. You know I don't sleep very well. So, you also know that we research and vet each and every one of our ads, and a couple of listeners wrote in to ask us about the science behind blue blocking glasses. Here's the summary of the science. Light exposure can tamp down melatonin, that's the sleep hormone production in the brain. Blue light wavelengths in particular seem to have the most drastic dampening effects. So, if you're working late at night, put on some blue light glasses in the evening, a couple of hours before you go to bed, or switch your devices over to night mode. This setting lowers blue light in favor of less disruptive red and orange hues. That's the science.

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0:40:17 Andrew: Since I've been wearing the Blue Blocks glasses, I am sleeping longer. I do feel more refreshed the next morning. Here's how you can get in on it if you do. Go to blueblocks, B-L-U-B-L O-X.com slash OA, and you use the coupon code OA to save 15%. So blueblocks.com slash OA. You'll see my smiling face. And then you use The Coupon Code OA to Save 15%. Blueblocks. They ship worldwide in record time. They have easy returns and exchanges on the product. I had to do that. And again, all you have to do is head on over to blueblocks, B-L-U-B-L O-X dot com slash O-A. Use the coupon code O-W-A to save 15 percent. That's the information you get. So 46 candidates.

0:41:03 Thomas: This is so dumb.

0:41:04 Andrew: And Yep. Now I think this is a really, really good time to pivot to the Gray Davis recall in 2003, which, by the way, was successful. Gray Davis was was accused of mismanaging the state's electricity during a series of rolling blackouts.

0:41:22 Thomas: Right. Which we later learned was basically Enron's fault.

0:41:26 Andrew: Yep. But didn't matter. That on Gray Davis's shoulders. And the voters, 55-45 in California voted to remove Gray Davis. And the Democrats really struggled to put together a strategy here, right? Like it's really, really hard to message, definitely vote to keep our guy in office. But if you're voting to kick our guy out of office, vote for this guy, right. And it it was Lieutenant Governor Cruz Bustamante, uh, who organized, and I remember his ads were, he, he was a terrible candidate and his ads Were terrible. Uh, he's probably show listener. Hi, Cruz. But Um, you know, he will be, we're going to get it. We're going get an email from Cruz next week. Look, I have some sympathy. He's in a real, real tough spot. Uh. But his message was vote no on the recall, but yes on Bustamante. Did not work. I said 46 candidates on this ballot, 135 candidates on the 2003 Gray Davis recall ballot.

0:41:52 Thomas: Yeah. Yep. Yep, yep. Yeah. Yeah, exactly. Exactly is it any mystery that the guy who's been in the bunch of action movies with the name recognition won you a dumb system,

0:42:33 Andrew: Yeah, but I do want to go through that, right? Because the perception was, oh, this is going to be a weak and fractured field. Arnold Schwarzenegger had been talking about running in a general election, this is really a perfect time to get in because you could win with 20 some odd percent, right. Bunch of other folks jumped in sort of with with what they thought were name recognition, right? Ariana Huffington ran. Gary Coleman, if you remember him, ran. Larry Flint ran. They did not do very well.

0:43:06 Thomas: It it's a bad sign for your system if it basically turns into a reality show that's not a good the founders should rethink what they're doing that's not good jeez

0:43:17 Andrew: Yeah, that is correct. But I will say this. The result, like I said, was 55-45. Just about 4,976,274 votes To recall Gray Davis, just over 4 million against. So 5 million to 4 million was the outcome. Arnold Schwarzenegger got 4.2 million votes in the second part of the ballot. It was almost, it was 48.6 percent, 48.58 percent. So, you there certainly was the perception.

0:43:45 Thomas: He did a good job

0:43:49 Andrew: He did a fantastic, he really, really did. Cruz Bustamante, Democrat around whom everyone coalesced, 2.7 million votes or just over 30 percent. The only other finisher in double digits was an establishment Republican named Tom McClintock, who got 1.1 million votes or 13 percent. So if you put that together, that right, is five million votes to recall Gray Davis and five five million, three hundred and sixty seven thousand votes for the top two Republican candidates. In other words, a significant slice. And you have to think those are all keep Gray Davis, but maybe Schwarzenegger, 400,000 people voted to keep Gray Davis, but for one of the Republican candidates to succeed Gray Davis. This. That seems like a weird result. I think the kind of crazy fractured system produces those kinds of results. We're about to find out because this election is set for September 14th?

0:43:49 Thomas: In campaigning you know he oh yeah I remember mcclintock it's

0:44:57 Andrew: It is five weeks away. And again, statutorily must follow the model We just talked about. Shall Gavin Newsom be recalled, removed from the office? Yeah. And polling right now is all over the place. As you alluded to in the beginning, Democrats, having learned their lesson from 2003, they do not have a Cruz Bustamante. Day.

0:45:06 Thomas: So bad yeah yeah

0:45:24 Andrew: The Democrats have said, nope, get in, vote no. Don't vote, don't start thinking about another person.

0:45:24 Thomas: Yep that's that's the that's the smart thing to do don't

0:45:31 Andrew: I think that's right. But as a result, very, very hard to figure out who's going to win. Number one, the recall question itself is bouncing all over the place. Um, some seem to show significant support for the recall. Some show modest opposition to the recall, we just don't know. I am looking at right now, and cannot I stress highly enough how insane these two comparing results are. I will link both polls, not just the press releases, but the polls, the underlying data, I have torn through them in the show notes. It's, let's start with the most bizarre one. Survey USA from two days ago, which says leader on question two, which candidate should replace Newsom if he loses question one, is self-identified Democrat and YouTuber Kevin Paffrath. If you say, who the hell is Kevin Kevin Paffrath?

0:46:27 Andrew: Yeah, me neither. He's a motivational speaker on YouTube. He is listed on the ballot as Kevin Paffrath financial educator slash analyst. That's it. That is how he is designated. He is at 27% in this poll. The person who has consistently led every other poll is ultra-conservative pro-Trump radio host Larry Elder at 23%.

0:46:26 Thomas: Know who that is yeah oh

0:46:56 Andrew: The only other person to be in double digits is John Cox, institutional Republican candidate, the guy who lost to at Gavin Newsom in the last election, right? So you look at that and you go, okay, seems weird, right, and then others, former San Diego Mayor Kevin Faulconer, F-A-U-L-C-O-N-E-R, Caitlyn Jenner, and former Republican Representative Doug Ose, O-S-E, all had about four or five percent, you know, okay all right, well maybe this Paffrath guy, like I don't know that we've We've done great with, you know, YouTubers. I'd vote for our YouTuber buddy, Legal Eagle. But, you Know, he should

0:46:54 Thomas: My god yeah is he on the ballot is he in california he's a californian right I think so

0:47:37 Andrew: Get on the ballot, but it's too late. Match that up against is an Emerson College poll from two days earlier. Okay. The latest Emerson college next star poll, the California gubernatorial week call election finds voters remain split with 46% in favor and 48% against, right? So that's, you know, minus two. Hey, minus two is one of the better results, right, that we have had lately since July, right. Are a bunch of polls from, you March, April, May that showed double-digit opposition to the research. But that survey USA showed an 11 point in favor of the recall, 51 to 40. So when I say all over the place, I mean all overtheplace. These kinds of races are super hard to pull. This shows recall failing by two. But then when you look at the second question, which candidate would you vote for to replace Governor Gavin Newsom if he's recalled, we have undecided it at 40 percent. Larry Elder at 23 percent. That's the exact same number he's got in the SurveyUSA poll.

0:47:38 Thomas: Yeah god yeah

0:48:46 Andrew: Then next, John Cox and Caitlyn Jenner, each with 7 percent. And you're saying, hey, wait a minute. What about Kevin Paffrath?

0:48:54 Thomas: So he just crashed one poll as users or something must

0:48:56 Andrew: One percent in this poll. Now, again, I am not statistician. I do not know. I am not suggesting that the SurveyUSA poll was hacked. I'm saying it is

0:49:07 Thomas: Have been yeah or maybe not hacked, but with something, thing, yeah.

0:49:11 Andrew: Almost impossible for me to imagine that data collected from July 30th to August 1st and published on August 2nd would show someone at 1%, whereas data collected August 2nd through August 4th and published on August 5th, which is the Survey USA, would show him at 27, you that does not happen, it cannot happen, uh, and I suspected, uh, from my informal polling of Thomas Smith here, when I said Kevin Paffrath, you didn't say like, "Oh yeah, that dude's over all the papers yeah yeah uh the fact that you're like yeah I've never heard of that guy either, uh, suggest that the 27 happened ahead a bunch of his listeners.

0:49:44 Thomas: He's huge in california yeah no that's bs we're yeah we're I just I'm so scared now that the numbers are that bad well

0:49:56 Andrew: The numbers are bad. And the only poll that has Democrats coalescing behind any candidate is behind a black box YouTube guy.

0:50:04 Thomas: I don't care about the candidate you know like it's just that first number's got to be above 50 at least

0:50:05 Andrew: Yeah, right. Yep. Yep, I agree. I And, will tell you when when you go to RCP, there is one poll since March, it's a Berkeley LA Times, that has do not remove at 50. Everything else is below. So it's just a simple majority.

0:50:09 Thomas: Jeez and it's just a simple majority right so that that's fundamentally the wrong way to do it I mean in today's Partisan environment, polarized environment. If you win by a simple majority and then we do a recall, is an extreme, extreme thing, hypothetically, because the signatures part is so weak, you could get any, like, I think you could always get the signatures, like, in no matter what's happening, no matter who's the governor, no matterwhat I know COVID, it probably contributed, but I don't know. I feel like you could, it's a giant state. You just need Republicans who are obviously, in this day and age, are going to be so anti the Democrat that they'll sign the thingy no matter what. None of them's going to be like, "Well, but has he done anything that really?" No, they'll send the thing. And so, therefore, that means if you win with, like, you know, let's say hypothetically 51% of the popular vote, and you basically could could get recalled by, by losing that support down to, like, 49.8.

0:50:30 Andrew: That's right. It is.

0:51:27 Thomas: You know, that means that that's, we're doing this extreme, extreme measure of taking you out of office because you've lost 1.2 percentage points of your support. I mean, does that, does dat make any effing sense?

0:51:39 Andrew: And and I want to pile on to that, we want to incentivize lawmakers to be willing to make decisions that are unpopular in the short term, but but work out in the medium term likes

0:51:52 Thomas: Mm-hmm. Yeah. Yeah, the way, perfect example, maybe at mask mandates, maybe Maybe strict COVID measures might have been unpopular. And then maybe in the long run, and I'm talking California, so among a basically liberal audience, but still, it's not like it's, yeah, nobody likes it. So, like, yeah. That's exactly the case you're talking about. And this Is, we got to get, you know, it is topic for another show. Here is the thing. Andrew, if you, I know it is my state. It is one state. But, however, it probably is our biggest audience of any state because it is the biggest state.

So if if in this is attractive to you as a follow up episode closer to the recall election, I would love if we could to do a topic of a the minor topic would be how the F do we get rid of this provision? Vision? Do we have to do a ballot signature measure thingy to get rid of it? Does the state thingy have to pass a thingy? Whatever.

And then also the next topic, again, for another show would be what are all the ways that within this year, by the way, this is the thing we haven't even talked about. Newsom is up for reelection in a year, right? Yeah.

0:52:09 Andrew: It yeah I agree right yep yeah in 2022

0:52:59 Thomas: One year he's up for reelection. So in that year, what can a Trumpist Republican ruin in The state? And that would be uh I think we need to do like a scared straight kind of thing of like do not uh if you are Californian please I'm not a big fan of Gavin Newsom I'm really not like I would vote uh if he gets primaried in 2022 I will strongly be considering whoever the primary opponent is but this please please get the uh interest up talk to your friends and family about it if you're in in California, talk to strangers about it. This is something that really matters because if the other side is more energized, we will have a Trumpist Republican as the leader of our state for a year at least. And it's going to be devastating.

0:53:00 Andrew: Yep until I agree with that 100%. Yes, and as we get closer to the the finish line we will do a uh a scared straight but but this is I hope this is scaring you straight and the reason I wanted to juxtapose these two that you and I both wanted to Juxtapos these two stories is um people are rightfully mad at Andrew Cuomo in new york he should resign he should be impeached um But let's not export this terribly broken system, easily exploitable, easily hackable system. Let's not import that to New York or anywhere.

0:54:03 Thomas: Course.

0:54:19 Thomas: Simple modification Torres even if we don't do the signature whatever I don't you know I think that should be upped I think the county should be up but realistically in this day and age you're gonna find enough people who hate Democratic the governor you're going to or vice versa you know simple fix make it a super majority vote if if somebody has done something so bad sad that a super majority, like, I think just purely talking about the mechanism, like forget all the parties, maybe if it was the other way around, you know, and it was a Republican or whatever. I think the bear, similar to impeachment, you know, impeachment of the president has to be a supermajority. Why in the world would recall be a simple majority? Like, sure, leave the mechanism in place, you now, maybe we need it for something, but make it so that if 60, 66.6%, something, thing.

0:55:06 Thomas: One of those numbers votes them out, then they're recalled. Why? Why would you make it a simple majority? And why would you same ballot to choose the next governor by a plurality? That is, it's so bad. This is so poorly designed.

0:55:21 Andrew: I couldn't agree more with that. I

0:55:22 Thomas: Oh, this could be catastrophic. All right. Well, again, seriously, I'm terrified of this. If you're a Californian, well, everybody, everybody should be. And if you are a Californian, if you know any Californians, you know, do what you can. And it sucks that we have to be, you don't know, throwing our weight behind a governor who's, you definitely done some bad things. He's also done some great things, by the way. But even if you were not enthused about Gavin Newsom, this is a disaster if we let him be recalled. It just is quite simply a disaster. But And now it's time to thank our Hall of Famers, our all time greats on Patreon.com/law. Your turn to start first.

0:55:50 Clip: And thank you!

0:55:58 Andrew: And I will start it off. All hail Saints Jan Kubis and Joseph Gabchick. Atomic Penguin, at Atomic Penguin seven on Twitter. Oh, cool. Still want Wilkie, Wendell Wilkie, all right. Joseph Vigiano, Ghost Dog, Statehood for DC and Puerto Rico Now, Dr. Scoop Little. Hey, welcome back, Dr. Scoop Little. Now, here's something we hope you'll really like. Alex, drop table, patron shout outs, kind of coding thing. Comedian Aaron Trahan, a.k.a. Game Jumper X, hand woven, machine washable, natural fibers at Kelly Wove It dot com. I went, I checked that out. Her stuff looks really, really cool, made on a loom, and anyway, it's super cool, kellywoveit.com, no railway pun this time, just thanks to Thomas, Andrew, the Piat team, and our audio uncles for helping me through one of what I think is the hardest times, uh, that thing in the attic, the fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star cantina. Republicans promised me court packing if Biden got elected, where is my pack court. If Thomas can't pork the streak, he can at at least streak the pork.

Liberals own guns to support root cause mitigation, not an effective gun control, that guy. Check out Gems of Truth and Beauty, a creative guided journal for personal growth by Hope Wallace Gentilis. Brief is worse than that time Travis Wester cited to a judge's dissent in support of his First Amendment argument. Oh, uh, A-T-E-O 100, Thomas deserves way more credit for his role in making the left-wing non-crappy atheist podcast a sphere.

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Yeah, I get a raise, you get a rise. Well, great work, Crazy Dog Horse Goat Chicken Lady loves the shout outs and hopes you keep them. I upgraded to the Hall of Fame for this. All rest in piece Brandon Bernard, we must abolish the death penalty. Budget Botanist is on vacation so no Fiverr plant help, but does have a plant law episode idea. Uh, seconding Raleigh live show. PSA, studies have shown listening to Patreon names linked with increases to productivity, happiness, and libido. Yes, so that is really, really perceptive, you are 100 correct, and I can't stress this enough, sparkle

0:57:44 Thomas: Yeah oh

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0:59:06 Thomas: Man rogue rouge it does say rouge so that's not you but uh it's rogue yeah I can't remember, I know it, I can remember, um, also I've, for a second I thought you meant the main one, uh, Cascade one, that's the uh the black uh red one, and I also can't remember that, I have a condition, I can't remember proper nouns, but I know that creature, great card, fun stuff.

0:59:28 Andrew: Card says boops I missed y'all last month, and I once listened to the song Bell on loop for more than an hour, just get the clown horning vaccine, you clown horny clown. Horns, Adam Borchov, I like my pork streaks paired with at Casa Agria and at Emperor's Brewery beer, 75% of Tulare County district attorneys have less than two years experience and they're doing felonies, some are only provisionally licensed, help, I'm trapped in the Patreon servers and can only change one username a year, Lee Sharp GDT says Australia's vaccine rollout has been a train wreck, only 16 vaccinated so far, you know, yeah, it's almost like this is hard, anyway, Thomas Kleberg, Ben Gazi, and the buttery males, Brian K Buddy Freaking Guyerson, followed Morgan on Twitter, now seeing different side of the platform, uh, Supreme Court justices should have 18 year term limits, and so should Connrad Michael, no, uh, no Coin at this firm has ever failed the bar.

0:59:56 Thomas: Yes.

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1:05:02 Thomas: Definitely not an MSNBC spy, my fully stocked basement bar is your fully stock basement bar for a Philly Live Show platinum event, you pick what's on tap, Jeff Galback, Jennifer Kratch, the butt of Andrew Torrez, civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio, laughing my ass off because Thomas knows more about the law than a coin does. John Builderback, my friend's cousin mixed coke with cop rocks and he died. Stephen Balticate, Sandoval, my patron name is a petition and thus cannot be subject to Rule 11 sanctions. Give to my needs.org, give to my needs org, Philip Kizer, Andrew the arbitrary and capricious, not that Chris Wallace Covid showed me, I'm the kind of guy that wants a little prick. If you ask a cop if they're a cop, they actually can't tell you because of HIPAA. That's good. Absion.

1:05:47 Thomas: Sorry for making you use the last one for so long. It was dumb anyway. Dude. Jonathan. Lord Kimbote. No, your honor, I'm not a cat nor am I a potted plant, but I am a karaoke legend if that helps. Uncle Frank is just pissed because Auntie Fa left him. Milo Meadsong wishes all Stephen Breyers a happy retire now. Join your labor union, together we bargain, alone we beg. Never tell the taint team to put a pin in, in it. Alfred Wallace, we are disclosing a suit by the Institute to get clowned by Tucker Carlson. I mooned my friends just to be cheeky. I feel targeted because Patreon keeps rejecting my patron names out of hand. False Anonymous Word Origins.org, your source for word and phrase origins. My witty names aren't original and my original names aren't witty. A series of bar suspensions, each more suspendy than the last. R.I.P. Notorious RBG. Nerd Gnostic sells art on society, Society6, they said I could be anything, so I became two fabulous lesbians.

1:06:42 Thomas: Derek, former undisclosed red state senior executive branch official, now figuring out next gig. Big Easy Blasphemy, it's kind of nice having a competent federal government again. SummitCheffleboard.com, please be kind to your veterinarian. We are overwhelmed and doing the best we can. A string of unpronounceable characters. Malika Chandler, they say I could do anything, so I become two princes who adore you. Soggy Pants, fewer cars, more bikes.

1:07:18 Thomas: The only Krakens this country needs are the ones that will be beating the Sharks next season. How dare you? I think the Shanks may be able to take the Kraken. We'll see. Teresa Gomez, David in Brooklyn, Sam Denao, Mitchell, I'm sympathetic to this patron name. Does anyone else smell Indian food? Oh, hi, Noah. I agree with that 100%. Natasha Cruncher, I want you to support the Justice Policy Institute, Sam Buck, and Connrad Michael. Thank you so much, Hall of Famers. I will tell you, I think I've personally, I'm drawing a line in the sand on this. This patron, thanks. Look for a future poll on Patreon, top patrons, because this is getting out of hand. I love it, but we'll see if we may put it to a vote. We'll see si if we want to amend this at all, or maybe we won't. But either way, we'll do it with the consent of our employers over on Patreon.com, so look for that. All right. Tough Uh, T3BE. I really have no idea. Let'S find out how I did.

1:08:08 Andrew: Until

1:08:10 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:08:21 Andrew: Okay. So Thomas, this was, a wholesaler brought a federal diversity action against a large pharmaceutical company for breach of contract. During jury selection, election, one potential juror stated that five years earlier he had been an employee of the company and still owned several hundred shares of its stock. In response to questioning from the judge, the potential jurors stated that he could fairly consider the evidence in the case. The wholesaler's attorney has asked the judge to strike the potential jury for cause. And the question is, should the judge strike the potencial juror for cause? Is. And what I love about this, I always love it when you exclude all of one set of answer. Yeah, right.

1:09:01 Thomas: Yeah bold. You love me for my bold old choices oh

1:09:05 Andrew: So I love you for your boldness, Thomas Smith. So you said, let's get rid of both of the no answers. Now, this should be a strike for cause. So A was no, because the potential juror said that he could fairly consider the evidence of the case. Really good strike, right? This is a really interesting question because usually I will say, well, let's go to the federal rules of evidence here, right? And here, federal laws, in this case, the Federal Rules of Civil Procedure, Rule 47 just says the following, A, the court may permit the parties or their attorneys to examine prospective jurors or may itself do so, right. So there are cases in which the court is permitted to arrogate that power to itself rather than to allow either side's lawyers.

1:09:51 Andrew: I've never seen that. So it is possible that no court does that. But I love that Rule 47 leaves that as an option. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper. B, the court must allow the number of peremptory challenges provided by 28 U.S.C. Section 1870. That's by law, and that's now three. And then it says, excusing during trial or deliberation, the court may excuse a juror for good cause. So if you're sitting there going, well, that seems super vague, congratulations, congratulations. The law is super vague here, right? The question on striking for cause is the court may strike a juror for good cause.

1:10:41 Andrew: Yeah. So, A, no, because the potential juror said that he could fairly consider the evidence in this case. Not enough, right. That

1:10:32 Thomas: Wow okay yeah and my reasoning was like, okay, what if it was like, I don't know, your brother or something? You're like, no, I could be fair. I feel like the judge should be like, nah.

1:10:58 Andrew: Is correct. And so whenever you have a general principle like what constitutes cause, right, you have a body of case law, stare decisis built up that's like, yeah, okay, cause has to mean at least, you know, being the defendant's brother, right? So, uh, yeah, right, not everything is subject to, do you pinky swear promise you're gonna tell the truth, right? Then you also excluded B. No, because the wholesaler's attorney could use a peremptory challenge to strike the potential juror. Um, it's certainly true that they could, uh, but as we've said on the show, as I just read you from the statute, you only get three, right, and you want to save your three for, man, just something in my gut tells me this juror is terrible, right.

1:11:06 Thomas: Yeah yeah, yeah again I, eliminated this on

1:11:45 Andrew: I

1:11:45 Thomas: A game theory-esque feeling like that would be weird if it's like, well, first up is they make you use your peremptory challenges on things that are obviously conflicts. That would be a weird way for the game to be designed. Well, it's, like, wow, we blew through our perempts right away because they make you use those first. So, now we get to, like... That doesn't make any sense by a game design kind of thing. So that's why I eliminated that.

1:12:09 Andrew: Well and it turns out procedurally you are correct um

1:12:13 Thomas: Thomas's second chance, that's solid.

1:12:16 Andrew: Yep. So assigned the coin to, well, the coin assigned itself to yes, because other potential jurors still remain available to the jury panel. And you took D, yes, because the potential juror has presumed, is presumed to be biased because of his relationship to the company. You're like, is it me? Is it just that straightforward? Even though this seems right. And Thomas, I'm pleased to tell you, you are correct. It is just that straightforward. Think about it this way. If you own stock in a company, any adverse judgment against that company is going to decrease its stock value.

1:12:20 Thomas: Yeah. All

1:12:48 Andrew: And so you have a direct financial incentive to say, yeah, okay, definitely going to vote to acquit. And that just the the law is crystal clear that financial entanglements are, per se removal for cause. The coins option, the only thing that I can figure out is that maybe it is sort of an inversion of the Batson versus Kentucky rule, right? Like Batson was the 1986 Supreme Court case that says you can't use your peremptories to strike all of the black jurors from a jury, And Right. So, you know, a counterfactual there is you certainly can use a peremptory challenge to strike a member of, you ethnic or racial minority from the panel. But, you Know, if there is other, you Know, If there are other potential black jurors, it would not violate the Batson rule. That's the only thing I could think of. It's not a great answer. And I'm glad the coin had it and not you. You.

1:12:40 Thomas: Right. Yeah, yeah, yeah.

1:13:47 Thomas: All right. Well, I win finally back on the saddle. Let'S find out which listener is the big winner this week. And I get to be here for this one. Can't wait to hear it.

1:13:55 Andrew: Yeah. And because of that, we're going to do something. We don't usually do this, but this was so well stated by patron Andrew Drake in the patron thread who says, hashtag T3BE, my answer is D. The dude is obviously unable to serve on a jury. Even if we ignore a preexisting relationship with the defendant, he owns a significant amount of stock in the company. That's a big financial interest in the outcome of the trial. If that isn't cause to kick him out of the jury box, I can't think of anything that is.

1:14:22 Thomas: Good call.

1:14:23 Andrew: The peremptory challenge thing makes no sense. Those exist to allow lawyers to remove people from the jury because they have hooligan hair.

1:14:31 Andrew: Or another reason that doesn't qualify as cause. You're not required to burn through all of them before you can get people off the jury with a good reason. Just absolutely perfect. Great answer.

1:14:35 Thomas: Exactly. But you're You're lucky we did this one time because normally you need to tweet out the show, include the hashtag, you know, but well done, patron. You know, you were so good that we we sort of broke the rules for you. So I hope you appreciate it.

1:14:45 Andrew: Yeah. Yeah well done andrew drake yeah you better enjoy your never-ending fame and fortune in order to follow andrew Drake you're gonna have to become a patron of the show over patreon.com slash law look for andrew drink he has a a cute little uh kitty cat uh default icon there

1:14:59 Thomas: Oh, there you go. Oh, All right, that's our show. Thanks so much for listening. Definitely vote against the recall of Gavin Newsom if you are in California, and we'll see you next time.

1:15:16 Andrew: Then

1:15:16 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-talkin' guy.

1:15:27 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it would be a big help if you leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to 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 And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.