OA523: Is the CA Recall Unconstitutional?

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 523. I'm Thomas. That's Andrew. How are doing, my friend?

0:01:24 Andrew: Still angry. How about you?

0:01:26 Thomas: Yeah, still mad.

0:01:27 Andrew: Good. Good.

0:01:29 Thomas: For you, us, we just recorded the last one. So perhaps that's not impressive as it sounds. But I bet you by the time you're listening to this in real time, I will still be mad. So it's, so yes, I'm mad because we just record the last episode. But also I'm still mad about it even now in real time. I think that's, that covers it.

0:01:45 Andrew: Think that's that's exactly the right way to put it. And yeah, the the message from 522 is going to be the same message in 523. Stay active. Stay involved. Remember that despair and disengagement is what the other side wants. That is the only way that they can stay in power. They have tried through through, you outright skullduggery, removing voters from the rules. They do not want you to vote. They don't care, right, the reasons why you stay home or, you know, if you throw your vote away on some third party lunatic or what, like that, all of that is designed to make sure. Yeah, exactly. So if you would like not to deliver the party that you hate, the party that is behind everything that has been, you you know, everything negative that is making you feel disempowered, if you don't want to give them what they want, then stay active, stay involved, vote for the Democratic candidate. That's all I can say.

0:01:45 Thomas: Yeah.

0:02:04 Thomas: Skull Duggery. Nice. Yep. Is A win For them Absolutely And, you know, it is a doom loop and it, we have to break the loop. We have the doom loop is they do this, they get us, as you're, as you're saying, they get us to disengage, they get us to think that we can't do anything about it, they get us to feel powerless. This, uh, and it will work. It will work if we let it they will be able to find more and more ways to have minority rule over us. If we don't break the cycle, if we don't break that doom loop. And the way we do that is by fighting back, by staying engaged. Do, which is, we vote for Democrats over Republicans. Um, that's the system we're in. That's the cycle we're, and that's what has to happen. It's the only way.

0:03:21 Andrew: Yeah.

0:03:21 Thomas: It is the only way it's not like Andrew and I are huge fans of that. I would, I would love a different system. You know, the only, the we're going to get a different system is first by getting Republicans out of office. You know the only only way to do that? Voting for Democrats. I mean, it's as simple as that.

0:03:25 Andrew: No, it

0:03:36 Thomas: It just really is. Okay. Well, surely this is a much happier show, right? About puppies and rainbows and yeah, right.

0:03:36 Andrew: Really is. All right. Yeah, something like

0:03:44 Thomas: What are we talking about today?

0:03:44 Andrew: That. Yeah we're going to, we are going to talk in large about the California recall. Again, it's going to follow the same kind of message. In fact, let, here's the bottom line: in California, in connection with the recall, to the best of my ability in terms of looking at the polling data, and we're going to get into that in a specific story, it looks like Democrats largely, right, are mostly OK with keeping Gavin Newsom as their governor, but they're not highly motivated one way or the other.

0:04:14 Thomas: Right.

0:04:20 Andrew: Republicans very, very much want to get rid of Gavin Newsom, and they're much more highly motivated. Now, there are more Democrats, there way more Democrats than Republicans in California. But if you start to do the math on that, you wind up with something that is very, very close to an actual 50-50 proposition. Now, all the polling over the last month, I guess we kind of dig into the segment here. All of the polling in the last month has improved. You might add SurveyUSA to the list of companies that maybe have somebody listening to Opening Arguments. So I want to talk about the latest SurveyUSA Poll, right, because you might recall on episode 515, we broke down their poll. Poll, uh, The

0:04:40 Thomas: Yeah. And it was porked. The poll was pork.

0:05:09 Andrew: The poll was was totally porked. It showed Recall leading 51-40, but it showed YouTuber Kevin Paffrath leading the field with 27 and becoming the next governor of California. And, um, is not going to happen. That, I, cut, cut, cut to the chase, uh, we went through, we discovered that the primary fault with the methodology was that, uh, they were listing seven or eight Republicans and one Democrat in their questionnaire. And so everybody who was a Democrat said, "Yeah, I'm definitely voting for Paffrath." And, you know, somebody who was polling at one percent wound up getting all of the protest votes. So as a result, SurveyUSA changed their methodology. But before we get there, I want to tell you, almost nobody else has.

0:05:55 Andrew: And it's still Still, like like slight tweaks nevertheless show that this is just an artifact of bad polling. So, for example, the Trafalgar Group did a poll and it shows Larry Elder leading twenty nine, twenty two. Again, same methodology lists six Republican candidates, one Democrat. And that's still not enough. Right. Get, to get Paffrath over Elder. Elder, uh, Gov CBS, uh, added 10 candidates. They added a Libertarian who got one percent, someone else who got 20, and not sure slash undecided who got 25, and that brings Path numbers down to 13, uh, but still shows Elder leading the field with 23. Um, and uh, when the the Change Research Group, I had heard of them previously as a polling outfit, included just five Democrats on their list, right? So not the full, there's like 11 or 12 Democrats that are running. It included the five sort of largest fringe Democrats, and that drops Pafrath all the way down to 6%, okay?

0:06:20 Thomas: Yeah.

0:07:06 Andrew: OK, so it is very, very clear. Paffrath support is a function of how many Democrats are asked about when you poll, when you do. And what SurveyUSA decided to do for their follow up survey was just list all 46 candidates. Yep. And again, Paffrath is first on the ballot. So he wound up with six percent, but he dropped from 27 to six in the same poll.

0:07:23 Thomas: Yep.

0:07:32 Thomas: Wait, really? Because normally you would randomize the order for different people when you poll.

0:07:35 Andrew: Yeah, you can't randomize the order with the 40. Right. Like that would be.

0:07:38 Thomas: Why not?

0:07:40 Andrew: I think it

0:07:41 Thomas: Well, when you do polling, you, I mean, you want to do that. You don't want to show people the same for this very reason. Like people will, will tire after looking at like four names.

0:07:47 Andrew: It I think that's correct. But I will tell you, I looked up their methodology to discover that. And it says SurveyUSA displayed to respondents the names, party identifications and ballot designations of all 46 exactly as they appear on the official list of certified candidates provided by the California secretary of state.

0:07:54 Thomas: Huh? Okay. So is that how our ballot is going to look then? Interesting. What determined that? Cause that, that's a major this, okay. So this whole process as we've discussed multiple times is the dumbest effing thing in the world. This should not exist.

0:08:08 Andrew: Mm-hmm. So suspect it's

0:08:22 Thomas: So what would be the criteria for how the, you California Secretary of State or whatever is making the ballot? Are they really going to take something that is a just a collection of 40 whatever candidates? And was it first come first serve? Was it what? Because like where you put them on the order in the ballot is going to make a big difference.

0:08:21 Andrew: Sure it sure it is. It sure does. And I have to tell you, I do not know what governs those precise procedures. Almost all of the laws and the best practices respecting polling are not designed to deal with 46 options. Right. Like so I imagine. Right. You know, you say, why didn't SurveyUSA randomize the order of the 46 people? And I guess that it's because because a a statistic, this is an 815 person survey. Right.

0:08:47 Thomas: Okay. Yeah. Yeah, good point.

0:09:08 Thomas: Right?

0:09:08 Andrew: That's a statistically valid sample size. But if you randomize right now, you know, that is 20 people will each see one order.

0:09:20 Thomas: No, that's sorry. You're just mathematically automatically blowing it here. The combinations of 43 people are infinite. That's, yeah.

0:09:20 Andrew: Right? OK. All right. Well, yeah. Well then. Right, so then there you go. So you could not.

0:09:32 Thomas: Well, no, but you can still just randomize it for each one. For each respondent, it's not that hard to randomize options.

0:09:36 Andrew: Yeah, but yeah, I don't know. I don't know how.

0:09:40 Thomas: No, I think you're right that they did it that way specifically because maybe the ballot's going to be that way or like, you know, they're reproducing what California is going to do.

0:09:48 Andrew: Think Yeah that's right. I think all I know is that I dug into their methodology. I like

0:09:53 Thomas: Did You know, here's factoid, similarly, uh, related, stats wise every time someone shuffles a deck of cards, it's likely that they're the first person to ever have cards in that order if they actually shuffle it properly. That's how many combinations of 52 things there are. Yeah.

0:10:09 Andrew: It. Well, this is 46. It's basically a deck of cards.

0:10:10 Thomas: Exactly. So That's What I'm saying.

0:10:11 Andrew: There you go.

0:10:11 Thomas: It's Very, it's it's large numbers of combinations, affirmations.

0:10:15 Andrew: Yep. Yep. So the revised SurveyUSA also flip flopped. You might recall if they had yes leading 51 to 40 on August 4th, as as of The Poll released last week, August 31st, that has keep leading 51 To 43. But before you get too excited on that, SurveyUSA also, quote, changed the language it used to identify a likely voter. In previous polling, voters were asked how certain they were to vote or not vote in the recall election to remove the governor, wording which may have led some respondents opposed to the recall to misidentify themselves as being unlikely to vote. Quote, in today's release, voters are instead asked how certain they are to vote or not vote, quote, in the recall election, end of quote.

0:11:01 Andrew: So in other words, right, last time it was recall election to remove the governor. This time it's been described as in the recal election. Now, which one of those is more likely to reflect reality? I don't know. Like your guess is as good as mine. My view, it continues to show that the major question is enthusiasm. Right. Who's going to go out? Who's gonna vote? To be active? And it's I get it. It's really, really hard to go out and go. I am super excited about voting to retain a governor. I'm lukewarm about and then picking a Democratic candidate. And you might as well vote for Paffrath. Right. Right. Like, I mean, you know, but but basically, you know, picking a YouTuber out of a hat for the B question, this is this is not great.

0:11:52 Andrew: I get that. If you don't, if you stay home, the next governor of California will be Trump supporting talk show host Larry Elder. And I'm pretty sure you don't want that. Also noted in polling is that California began mailing ballots to all active registered voters on August 16th. So I don't know. I mean, you should have your ballot, right?

0:12:15 Thomas: Yeah, we do. We do have our ballots. I haven't turned them in yet, but yeah, I'll be voting no.

0:12:18 Andrew: Well, yeah, there you go. The important things there are, I think SurveyUSA listens to the show. They redesigned the poll question.

0:12:29 Thomas: Or they realize very obviously

0:12:30 Andrew: They realized, yeah that maybe, but they didn't realize it. They didn't point that out in their entire analysis of their poll.

0:12:31 Thomas: That their poll was porked. Yeah. One thing, one thing or the other. Yeah

0:12:37 Andrew: They were just like, yeah, man, this this Paffrath guy came out of nowhere.

0:12:38 Thomas: Yeah. That path graph is so hot right now.

0:12:42 Andrew: Yeah. Most other polling companies are using a similar flawed methodology. So when you see Paffrath with 8, 10, 20, 25 percent support, he does not have that. And sadly, the opposite is true. Right. Like so Democrats are not going to effectively collaborate and collapse around Paffrath. Elder is going to consolidate that Republican support. I suspect he will be over 30 percent on the election day. Right? Because Republicans do vote strategically and the party will kind of say, OK, like, let's get in line. There isn't a Republican challenger who's reasonably close to elder. So if you're going to vote no on the recall, this is where your vote should go. And it's going to be like, you know, we're going to be biting our nails down, you know, down to the cuticles, down to the down to the skin because this is this is not a slam dunk. So so stay active, stay involved. And if you're wondering, hey, is this all going to get thrown out by the courts?

0:13:51 Thomas: No.

0:13:51 Andrew: I have a B segment for you.

0:13:52 Thomas: Yeah Oh wow, really? Okay. Is it about a bees? No.

0:13:57 Andrew: It's about Bieber.

0:13:58 Thomas: What, all right, this is getting very interesting, okay. Let's Uh, we better get to this bee segment, all right, what the heck. Well,

0:14:03 Andrew: There you go. Yeah. On August 14th, 2021, R.J. Bieber, B.A.B.E.R., and A.W. Clark filed a notice of motion and motion for declaratory relief and preliminary injunction declaring the unconstitutionality of California Constitution Article two, section 15 C. And in joining the September 14th, 2021 California recall election based on the said unconstitutionality, didn't cover it that the day it was filed. It has since had an opposition, and the court has ruled on that opposition, and that has been appealed all the way up to the Ninth Circuit. So, so let's talk about this lawsuit, or lack thereof.

0:14:55 Andrew: Is plausible to state a claim that is notwithstanding, you know, we we joked about a little bit of asking a court to declare a provision of the Constitution unconstitutional. But you can do that. You can. If there is a provision of your state constitution that violates federal constitutional rights, you can have that declared unconstitutional. Pretty high bar, as you might imagine.

0:15:22 Thomas: I think we just have to say that some bounty hunters are gonna enforce them. No. Or is it the opposite? I don't Even know. Yeah.

0:15:26 Andrew: Yeah, yeah. I don't even know anymore. Yeah.

0:15:32 Thomas: Yeah. No, I got it. Here's the plan. We say we Democrats in California are like we're banning the recall. And the way we're enforcing that is bounty hunters are going to sue anybody who votes.

0:15:32 Andrew: Um, yeah. Who, conducts a recall, or who votes. Oh, yeah.

0:15:46 Thomas: Yeah. Yeah. And then they're like, oh, that's that can't be right. Oh, too bad. Apparently that that means you can't enjoin it. Case closed. Solved it.

0:15:55 Andrew: Um, instead, I, I, I want you to, I want to, I wanna walk you through the argument being made here, because, so there's... there's a lot with which to agree. But I think this sort of illustrates the difference between a lawsuit that is filed for public attention versus a lawsuit that is fired for to achieve particular results. So let's talk about it. Start off at the beginning of the argument, which is, what, what's the constitutional right that's at issue? Well, quote, undeniably, the Constitution of the United States protects the right of all qualified citizens to vote in state elections. Ok, that, that seems right. All qualified voters have a constitutionally protected right to vote. And that right to vot means, quote, the right to voted freely for the candidate of one's choice, which is of the essence in a democratic society.

0:15:56 Thomas: Oh,

0:16:47 Andrew: Any restrictions on that right strike at the heart of representative government, and the right of suffrage can be denied by debasement or dilution of the weight of a citizen's vote, just as effectively as by wholly prohibiting the free exercise of the franchise. Okay, we're getting a little better. So what's the argument? The argument is plaintiffs are prevented from voting freely for the candidate of their choice because their right to vote is denied by dilution. So that they are prohibited and prevented from the free exercise of their franchise. Plaintiffs get to vote only once, while all voters who vote in favor of recall, should they prevail on question one, will get two votes. This cannot stand. What do you think of that argument?

0:17:31 Thomas: That's interesting. So the logic is, like, this isn't fair, man, I want to agree with this because the system is incredibly stupid. I don't know if it's unconstitutionally stupid, but the argument seems to be, you know, because people, people are saying no, essentially just get to say, no, yes, we can still vote for a replacement. But, you know, is that going to be the failure there? It's not really true that you don't get to vote for the governor if you vote no. I mean, you can still say no and then vote for a governor, right? Isn't that going be the counter?

0:17:31 Andrew: Yeah although uh let me buttress the plaintiff's argument they they don't quite make it this way. They would say, right, but I can't. And there is a weird write in, but it like it basically doesn't count. It gets thrown away. I can't say Gavin Newsom in answer to question two.

0:18:03 Thomas: Okay. Right. Yeah. Yeah, that is weird. Weird. But wouldn't

0:18:18 Andrew: So what do you what do YOU think of the argument?

0:18:19 Thomas: But wouldn't the logic be that, you a no is just a vote for Gavin Newsom? And like there's it wouldn't really make any sense to say he could have. Well, guess. So the key. OK, the key thing happening is there is no opportunity for Gavin Newsom to win with a plurality. There is an opportunity for anyone else not named Gavin Newsom. To win with the plurality, and that is why the system well, one of many reasons the the system is so terrible. And I don't know if this lawsuit is capturing exactly the problem there. Like, is that unconstitutional because of this? But that is, don't you think that's the key issue? Gavin Newsom can't win on a plurality. So yeah. Okay. So if there were the ability to say no and Gavin Newsom, then Gavin Newsom could still be governor with 30% of the vote if that's more than the next person. Right. So, okay.

0:19:07 Andrew: I do. OK. Good. Good.

0:19:09 Thomas: So maybe I agree with these these plaintiffs.

0:19:10 Andrew: I good. I wanted to steal man and I wanted TO go through. So now I want to give you the counter argument. Right. And this is the argument being presented by the California, by the Democratic California secretary of state. Right? So, you know, in other words, somebody who I think has a reasonable interest in not wanting the recall to go forward, but nevertheless also has a requirement to defend California law in federal court. So argument goes something something like this. And it says, you know, the recall election burden your right to vote in the abstract, but only minimally. Plaintiffs say that it's unconstitutional because it gives voters who vote to recall the governor two votes, one to remove him and one to select a successor, while limiting to only one vote the franchise of those who retain him and And insists that he not be recalled.

0:19:16 Thomas: Yeah.

0:20:05 Andrew: By the way, parenthetically, I think your argument of the plurality argument, which they sort of address on the court sort of addresses, is a much better framing device. Right. Like, I think the plaintiffs would have been better served by Thomas's second chance law firm here than by the firm that actually represents them, Yagman and Reichman. Anyway, the state's argument is that's incorrect.

All registered voters in California have the option of casting one vote on either issue, on the recall election ballot, on both issues, or on neither issue. Right. You can, you could choose to leave it blank. You could choose to vote yes and vote for a replacement candidate. You could choose to vote no and vote for a replacement candidate. Your vote gets counted the same either way. It's not really a one vote, two vote thing.

Then it says the recall election may be viewed as presenting two separate and distinct questions to be voted on, whether a particular officer should be removed from office, and then who should be elected as the successor if the recall is approved, which are governed by different rules and potentially involve different considerations. This, I think, gets to your plurality argument. Argument here is, in fact, we can read it directly. While plaintiffs may not like the fact that they cannot vote for the governor to replace himself in the event that the recall succeeds, there is no absolute right to vote for any particular candidate in any particular election. The candidate must be legally qualified to run for the office. A limited restriction on the ability of an official who is the target of a recall election to be a replacement candidate

0:21:37 Andrew: In the successor election does not severely burden voting rights. To the contrary, it promotes the purpose of the right to recall.

0:21:36 Thomas: Yeah, yeah. I think this captures that I didn't agree with the plaintiffs that this was an unconstitutional burden on voters or something like that. It's just a huge failure of the system, and I'm not sure that it's a failure that's so bad it's unconstitional.

0:22:05 Thomas: I should be is it should be two elections. It should be, is the governor recalled? Bam. You know what? It should be just like we did our Hall of Fame, Still doing our Hall of Fame, patron. It should be one question, recall or no recall. After that, even if you want to still ban Newsom from running, that's fine. Then if Newsom is recalled, do a separate election where the Democrat, or whoever, whoever's in power, by the way, this, this just is something that is a huge disadvantage to who, the party that's currently in power, whichever party, can then coalesce around a candidate and then you can have an actual election for the replacement governor, that's, that's the key, but the thing is, I don't know that I, I appreciate what the plaintiffs are trying to do here, but, like, I don't think it's an unconstitutional thingy, as you say. I mean, it, no, no, as you're breaking it down, I think I agree with, with this breakdown where it's like no individual

0:22:12 Andrew: Think

0:22:58 Thomas: Component of that is an an unconstitutional thingy. It's just a terrible system. Is that, what do you think?

0:23:05 Andrew: That, No, I think that's right. I think that's the right way to look at it. And I would add that part of the analysis that both California and then the judge ultimately upon which they rely is something that I think, think, also fits into that category. And that is whether to uphold term limits. Right. And again, I think, believe me, I understand folks who get behind term limits. Term limits are terrible and they don't work. And just take a look at the state of Virginia if you're, if you're thinking that that they do. But, but nevertheless, right, like, term limits, particularly for state offices, offices are quite clearly constitutional.

So what they do is that puts a restriction on what qualifies a candidate to be on the ballot, and it puts a different kind of restriction than the other restrictions, which you might call sort of purely procedural, right? Like, so, you know, yeah, your name doesn't appear on the bullet if you can't get a hundred thousand signatures. Well, that, that's not, that doesn't go to the heart of somebody's choice, that sort of more goes to the, the practicality of, yeah, you know, if you can't get 100,000 signatures, you're probably not likely to win 50 million votes,

0:23:26 Thomas: Hmm. Yeah.

0:24:21 Andrew: Right? But term limits actually impose a substantive restriction. They say, yeah. You get 50 million signatures, but if somebody is term limited out, they cannot appear on that ballot, no matter how many people want them to.

0:24:36 Thomas: Well, by the way, all of that would apply to age limits too.

0:24:39 Andrew: No. Yeah, absolutely. So the court evaluating whether to grant injunctive relief, you know, the first prong likelihood of success of the merits. The court describes this as plaintiff has no likelihood of access to on the merits that's harsh and and And kind of goes. Yeah, it goes through the analysis. At first it says, you know, you quote from Reynolds versus Sims, and you say, you know, one person, one vote. And it's kind of stirring language. And that was the part that I I quoted you. Nobody should have their right diluted. But you should know that that Supreme Court decision was about Alabama's attempt to assign one state senator to each county. Right now, Alabama does not have a lot of large cities in it, but again, you can see quickly, like, you know, the Republican plan of, you know, let's make sure land outweighs people. Like, they they actually tried to put that into practice in the 1960s. Uh, to wonder why. Uh, to say, uh, yeah, no, it's it's all about where you live. So we want each county to get their own state senator. And people sued.

0:24:52 Thomas: Oh, wow. That's not good. Yeah, no likelihood.

0:25:48 Andrew: And the Supreme Court in Reynolds versus Sims said that the one person, one vote doctrine would would dilute your vote if legislative districts are not equal in population or relatively equal in population. So all of that broad soaring language really applies to your vote by making your vote for the same office different across various legislative districts. Now, you might ask, isn't that a good argument against the Senate? It's absolutely a great argument against the Senate. But, you know, you can't declare the Senate unconstitutional because, you you know, the Senate's in the Constitution.

0:26:28 Andrew: But but certainly if if we could, me and Larry Lessig would be filing that lawsuit. And so then the court is really I thought it was interesting that even the state of California, they didn't like bend over backwards to say we think this recall is a great thing. The court says, look, the ban in its Section 15C of the law that if you are the one being recalled, you cannot be qualified as a replacement candidate, does not get subjected to strict scrutiny because it's not unduly burdening your rights. Gets subject to a rational basis. And the reason that it gets subject to a rational basis is when you think about what the recall statute is meant to do. Well, again, here, let's let's quote directly from the opinion.

0:26:27 Thomas: Yeah, would that we could, could amend it. Yeah huh.

0:27:20 Andrew: Section 15C meets the Supreme Court's test and verdict by preventing the anomalous result that an officer recalled by a majority would be immediately returned to office by a slim plurality. That limitation makes sense. Hence, plaintiffs argument ignores that a majority of the voters must first vote to remove the governor before votes for the replacement candidates mean anything. So, yeah. And and and I think the way you've put it is kind of exactly where I would come down, which is I think California recall system needs to be changed via constitutional amendment. Amendment. That's something that's relatively easy. I'm, you know, relatively put an asterisk by it, requires coordinated effort. But interest groups absolutely could could put that on the ballot as a ballot initiative in California to change the way recall works. And and I like the way you would write, which is split it up into two elections. Right.

0:27:34 Thomas: Yeah yep obviously

0:28:13 Andrew: Recall is just a straight Up, down, yes, no. And then, you know, then you have six weeks to do a primary or whatever. You know, I don't care how you do it. But but put it in a system, have ranked choice voting and, you know, effectively require the the person who wins to be over 50 percent. Yeah.

0:28:14 Thomas: Yep mm-hmm.

0:28:33 Thomas: Well, Look, it right in that language of, we can't have a majority say they don't want Newsome, but then he could get back in by a plurality. Well, okay, but why is it that another person is allowed to get in by plurality? That doesn't, if if it counter to the will of the people to have Newsome be back in via plurality, why is not counter to will of people to anyone else get in via plurality? I think the problem is governors should not be elected by pluralities, especially when they could be so infinitesimally small because of the wide candidate field.

0:29:06 Andrew: That argument was actually raised. And here's what the court says to that. Tell me what you think. Plaintiff plainly feels disgruntled that a replacement candidate with a small plurality might replace a sitting governor who, based on a robust no vote, might well have beaten that same replacement candidate in a general election. And and by the way, 100 percent true. Right. You run Larry Elder against Gavin Newsom.

0:29:08 Thomas: Ah, yeah. Right.

0:29:26 Thomas: No, I know. This is, again, I just want to clarify. I'm not saying that this case should win. I'm just saying this is why the system is. So if they just had to clear a rational basis, I agree that that's a rational basis, but it, you know, this is just a contradiction within that.

0:29:28 Andrew: Yeah. Yeah, yeah. Oh, no, no. No, I know you're not. Yeah no. That's why that's why we're going through. Yeah yeah. And that's what I want. But but I want you to see how the the court at least the court doesn't just say it's rational basis. You know, go F yourself. I'm not going to talk to the you know that the court deals with these issues. And I'm curious from the perspective Of somebody who's sympathetic, how you feel with this, with this. Answer. So, first, um, Governor Robust no might well have beaten that replacement candidate, and that is undoubtedly the case, right? You run Gavin Newsom against Larry Elder, that's a 70-30 victory for news. Right. As that may be, such disgruntlement raises no federal constitutional issues, does not give the federal judiciary the right to halt the mammoth undertaking of this gubernatorial recall. No one suggests that a state constitutional mechanism for recall is in itself unconstitutional. Right. No doubt, it would be cheaper and simpler to replace a sitting governor with the lieutenant governor.

0:29:52 Thomas: Yeah. All right.

0:30:07 Thomas: Absolutely. Yep.

0:30:36 Andrew: But for over 100 years, California has chosen a different procedure. The United States Constitution does not prevent that. California voters who are dubious of a plurality lottery among the 46 replacement candidates have the opportunity to vote no. Know.

0:30:39 Thomas: Yep, yep.

0:30:49 Thomas: And we just need to amend this, this procedure or get rid of it. I think that's right. That's, I wish this, uh, I wished this had merit, but I don't think it does. And I, we just have to fix this. We have to, A, we have to vote no and get through this. And then subsequently we need to get rid of this entire procedure or, or at least significantly amend it.

0:30:53 Andrew: Yeah, I I agree.

0:31:13 Thomas: Show is brought to you by Talkspace. We all talk to friends when we're experiencing issues, but they don't always give the advice we need. And I think this is a tricky thing because you want to talk to your friends about things that are important, things that matter. But oftentimes for me, I also feel like I don't want to be burdening them, you what are the effects that I'm having on them? You if I'm offloading onto my friends, for example, and that's why I just truly believe in therapy. I think it's really critical to have someone to talk to who, you know, you're not in a friend relationship with so that you're not worried about the burden you might be putting on them or how they're going to be perceiving you at all the time. That's why I also highly recommend Talkspace, whether you're a parent, a student, millennial, or just someone having a hard day.

0:31:58 Thomas: I'm, uh, most of those, some of those things, Talkspace can provide the support to help you feel better with a single message. Talkspace offers individual and couples therapy. In addition to medication prescription services, they You can set goals with your therapist and they can help make sure you're really progressing. Talkspace therapists help you develop tools to cope in difficult times. And this is the best part, Talkspace works around your schedule at your convenience. In this day and age, especially when a lot of us are working from home, our schedules are kind of, they're not set, you know, like often you're working at weird times or I know I am. And so having the ability to work around your scheduled is really critical with Talkspace. You can send and receive unlimited messages with your dedicated therapist in the app, and you can schedule live video sessions with your licensed therapist from anywhere.

0:32:45 Thomas: So start feeling better with a single message. Match with a licensed therapist when you go to Talkspace.com and get $100 off your first month with the promo code OPENING. That's $100 OFF when you use the code OPening at Talkspace dot com. This episode is brought to you by WordTune. Folks, every year, U.S. businesses waste over $400 billion because bad writing causes confusion, misses the mark, or just takes too long to get to the point. On the flip side, better writing also helps enhance brand perception, improve internal communication, and strengthen relationships with critical partners. Better, faster writing means better business, which is why your team needs WordTune for teams.

0:33:30 Thomas: Going way beyond simple spelling and grammar correction, WordTune is the only AI-powered writing tool that writing suggestions that help anyone achieve clear and compelling writing. It is the ultimate writing tool to elevate your entire team's writing instantly. I was wondering how a writing tool could possibly do this, so I gave it a try. Right. I have WordTune on in my browser. It's integrated into Chrome for me, which is super cool. And anytime I'm writing anything, could be show notes for the episode, could be a post on social media, whatever it is. An email, by the way, it helps respond to emails a little faster. It feels like having a real life editor sitting next to you whenever you need it, which is fantastic for me because I need a little help with my writing. WordTune helps me to be more efficient in my writing and publish better work.

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0:35:01 Andrew: We have I've been sitting on there's a there's a listener who strongly disagrees and would like to ask you a couple of questions. What you want to tackle some Of those. All right. Yeah. Let's give him a shot here. So this is Vincent Diamante, who says, I'm writing to respectfully disagree with the stances you took in your most recent episode regarding recall elections and provide a defense of those elections from the left. Democracy available in Western states and would hate to see them become less democratic. With our government being so prone to regulatory capture and minority rule to begin with, I'm uncomfortable with the idea of stripping away one of the few tools available to voters to hold politicians accountable before the end of their term. So let's start with that one for a minute. Hold politicians accountable accountable before the end of their term. What do think of that as an argument?

0:35:11 Thomas: Sure.

0:35:43 Thomas: No. Yeah. First off, I mean, yes, but also this is explicitly the opposite of what this person is saying. This is a way for minority rule to come into play. So you can't justify this on the grounds that like, oh, there's too many opportunities for minoritarian rule. Yeah, this is that. Having Larry Elder be able to win with 20 something percent of the vote is minoritarian rule if there is any such concept, that is what it is. Uh, in terms of ways to hold them to account, um, is this the only thing? Do we have impeachment? I mean, is this, do We this California has Yeah, okay, that's that. Um, and by the way, even if impeachment weren't enough for you, and and btw, this, this is the opposite. The minority rule thing really bothers me because these are all ways for a minority to rule. Like, this is actually preserving the ability for a small group of heavily disgruntled clams to, uh, subvert the broader will of the people.

That's all this is, um, because while you may be able to get, you know, 50 or, you know, 15, whatever, it's slightly over 50 percent of people to agree that Newsom should should be recalled. The replacement part is the biggest problem here. And if you wanted to keep the ability for the people to recall the governor, I'm actually okay with that. You just need it to either be a bigger threshold, I think, in this day and age, know, of slim margin of polarized

0:36:18 Andrew: No, yeah, we have impeachment. Yeah.

0:37:12 Thomas: Society here, having, you a person be able to get into the governor's seat by getting 50.1 and then be kicked out by losing 0.2 percentage points, it doesn't seem sustainable to me. That just doesn't make sense. But let's say you wanted to keep that. Okay, at least amend the system so that it's two waves, as we've said, so that you recall somebody and then you hold a new election for the replacement. Or, by the way, it just goes to lieutenant governor. I think it doesn'T do that in other states, if I remember right.

0:37:41 Thomas: So, again, there is no justification for the system as is. There may be some justification for some sort of recall, but having impeachment means we do have some way to keep the, abuse in check.

0:37:40 Andrew: Yes. Yeah, it does in other states.

0:37:54 Andrew: I find I find your faith in state impeachments interesting, you know, given our recent federal experience. But but OK, next next part of the question. And this is one where I yeah, I have a strong opinion on, I'm curious if you do. I simply don't believe that a politician, politician who has lost the support of the public, should be able to remain in office on the basis of an arbitrary election schedule, but rather that politicians should serve at the pleasure of the public that gave them a democratic mandate. So I would think that would support, you know, something like, you know, the the English vote of no confidence,

0:37:59 Thomas: Yeah. Well, we're in California, so, you Know, okay.

0:38:29 Thomas: Right.

0:38:30 Andrew: Right? Yeah. What do you think about that argument?

0:38:30 Thomas: Right. Well, you said you have strong opinion. Why don't we just let you go first?

0:38:36 Andrew: All right.

0:38:36 Thomas: I'm sure that people would rather hear your opinion.

0:38:37 Andrew: Well, I don't know. This was aimed at you. Again, But Again, you know, we're philosophizing. So, your opinion is no less valid than mine. But I agree with that one. And And this is something that, you know, every member of Congress has a stock representative versus leadership theory speech that they haul out when they give speeches before civic organizations. And that stock speech is basically, you how much of my job is to represent what my constituents want and how much is it to exercise my independent judgment about what's in their best interests, regardless of of how that polls at that particular moment? I'm going to give you a really, really good counterexample where where where you run the risk of bandwagoning turning what is an unpopular political stance into a pariah stance. Right. And so so just think about like the the handful of legislators in the U.S. House and Senate who voted against the Iraq war in 2002.

0:38:58 Thomas: Yeah. Yeah. Yeah. I bet. You are, yeah. Yeah. Yeah.

0:39:42 Thomas: Truly. A handful, yeah.

0:39:44 Andrew: Yeah. And there were state legislature votes. Right. Like the totally meaningless, symbolic flag waving votes.

0:39:44 Thomas: Yeah. Uh, talk about, yeah, yeah, talk about virtue signaling. Virtue signaling votes.

0:39:54 Andrew: Yeah. And and look and look, Obama cast one of those virtue signaling votes, right, said, hey, you know, while a member of the Illinois state legislature in Springfield said, I am opposed to the Iraq war. And that, yeah, And that catapulted him to the forefront of the, you know, along with, you know, his 2004 floor speech and obvious gifts and institutional strength. But that was a major factor in his 2008 campaign. I worry. I saw what happened when in the 90s, the Democratic Party, for matters of convenience stopped politically opposing expansion of the death penalty, right? And the death felony went from a 55-45, 60-40 issue to a 75-25 issue almost overnight, it right? Took the good work of people at the Innocence Project, and it took Republican Republican governors to say, hey, we're going to have a moratorium on executions while we sort through DNA evidence to really begin to have any kind of swing backwards with respect to that.

0:39:56 Thomas: Yeah.

0:40:06 Thomas: To Illinois, I guess, going to war,

0:41:08 Andrew: So, look, I want to and I get it. And it's why I led with the with the speech that elected officials give. But I want to incentivize members of Congress to to cast hard votes. Right. And and to take brave stances. Now, you know, how far does that get out of line? I, you know, I'm not, I'm not saying, you know, how far does that get on a line, but I don't think I agree with the proposition that, you know, sort of the moment you're underwater, it's time to recall you.

0:41:21 Thomas: Yeah. Well, Absolutely. I couldn't agree with you more, and I couldn't disagree with the premise of this question more. I don't think that it's an arbitrary election schedule. It's arbitrary in the sense that, yeah, humans are making it. It's not like we didn't derive it from the laws of physics, but it's not really arbitrary to be like, here's your term of service. You will serve this term. And then there's an election at the end of that to see if you stay in. That's not, that's not really arbitrary, don't you think? I mean, that's like, let's see what you do within this term. You have this opportunity to serve the people, and short of something extreme, you finish that out.

It shouldn't be, if at any point during that term, you drop to 49.9% support, you're out. I just think that's a terrible way to run a government. I really do. I think that, as you say, the handful of dissenters to the Iraq war, and again, truly a handful, not very many, would have turned to even fewer if we had this mindset where it It would incentivize. And by the way, this would make fake consensuses happen, you know, because let's say previously something would have been 60% popular. Well, now if you run the risk of at any time, if you do something unpopular, you're out of office, things that were only 60% popular will turn to weirdly like 90% popular or higher because of this incentive structure.

0:42:14 Andrew: I

0:43:00 Thomas: And I think that, as we saw with the Iraq war, that could lead to terrible outcomes, something that was maybe not popular, being artificially inflated in popularity due to this mindset. I feel like that's a little bit of Brexit, you know, like that's part of that problem. I think, I'm not an expert, but, but I think having this vote of no confidence all the time, because you have something that just isn't very popular, in Brexit, like no matter which way you cut it, uh, and then especially when they were trying to work out how it would actually work, it becomes less and less popular, and so they churned through a few, you know, PMs that way. Um, so I don't know, what do you think about all that? I I just don't think this is a good way of running a government.

0:43:41 Andrew: I think you actually put that much better than I did with my capital punishment example, right, that is that the point of having a turn. Yeah, it's arbitrary in the sense that, you know, speed limit 65 is arbitrary, could it be 70, could it be, sure, right, like, but you have to pick a number, and the idea was we we picked a certain number, and that that number is, yeah, you get, you get that period of time and let's see what you can do, yep.

0:43:54 Thomas: Yeah. Yeah. And right And I, I think it's, you brought up the example when we first started talking about the recall of having to do something like the COVID precautions, which, which aren't going to be popular, you need that ability to do that. And, and it's just the way people work, by the way, like if there's, this system would short-term thinking, you know, because if something is a great long-term idea, but in the short term might get down to 49% support, well, Well, guess what? You're not going to do it. Why would you ever do it as a representative? Why would you put that legislation forward? Why Would you take that action? Because it doesn't pay off.

You're not going to have people agree with you until long after you're voted out of office under this theory. So having a term is not arbitrary, per se. I mean, it's arbitrary in one sense, but I think it's actually important to be able to say, well, I have a bill that I think will, on its surface, look a little unpopular. Let's say it raises taxes. And this couldn't be more more of a real example.

Let's say it raises taxes a little bit, but I believe that once people see the benefit of this bill, once they see that road being built, once I see that bridge, once I see whatever, they might change their minds and say, you know what?

0:44:20 Andrew: I

0:45:14 Thomas: I don't care that I pay a little bit out of my paycheck for this. This system would make that impossible. This couldn't be a worse idea. I'm going to come at you with a flaming hot take. Andrew, are you ready for this flaming hot take?

0:45:25 Andrew: Can't wait, whoo-hoo-hoo.

0:45:26 Thomas: I actually think the way impeachment is drawn up in the constitution is good. I think the problem is, hold on. The problem is the Senate. I think if we had a Senate, and I could be wrong, but I just came up with this now, so please feel free to give me feedback on this, this hot take. If the Senate were actually representative of the people, that I think it's, I think it's good that you need, here's, here's the fundamental principle I'm getting at. I think you need a, there should be a mechanism to get someone out of office. Absolutely.

But it should be a higher threshold than 50-50. That's just not practical. I think that is a terrible system to have a way to get someone out of office once they dip to forty nine point nine. I think it should be, so, so if you had more breathing room, if it's 60, if it's sixty six point seven, whatever, that gives you the ability to take someone out if they do something extremely terrible.

But it also gives you the wiggle room if they do something that's not terrible, but is, you know, COVID restriction, something that, or or something that looks bad in the beginning, but maybe is a long term good.

0:45:33 Andrew: I

0:46:26 Thomas: You know, that gives you that breathing room. The problem is the Senate in impeachment. I actually think if, you know, maybe I would say it should be 60-40 instead of 67 or whatever. But like, roughly speaking, this is the hot take, lava hot take here. Impeachment, good. Senate, bad. What do you think?

0:46:41 Andrew: I need some, some time to process that, but I like where you're going. I think, hopefully, we've given Vincent some things to think about. There's sort of two more points. Maybe I'll get to the second one in a future episode. Think if you go back and listen to our episodes when he says, I was disappointed by the fact that the podcast seemed to gloss over what I see is the biggest problem with California recall elections, and a major issue in most U.S. elections as a hall, which is first past the post. I don't know how you got that from us, we've been huge.

0:47:11 Andrew: Yeah. We yeah Exactly, so we, we all agree it's the plurality that's the problem, uh, we've all been for ranked choice voting, uh, so I think that's just, um, listener error, if I may be so bold as to suggest that.

0:47:09 Thomas: Yeah, that's exactly the problem here.

0:47:24 Thomas: Yeah.

0:47:24 Andrew: Uh, but I think we've given you, uh, a lot to think about, these are, these are great issues, I thought that was a good set of questions, we're not afraid to to you know, respond when when folks

0:47:31 Thomas: Yeah, oh, very much appreciate the question, even though I vehemently disagree, but I really appreciate the chance to think about that. It made me think about some things. So very much. Thank you for the feedback.

0:47:34 Andrew: Yep. Yeah. Absolutely. And we got Thomas's hot take, so

0:47:43 Thomas: Yeah, I know. Honestly, like I just thought of that now. Like, I do think that is the issue. The issue is the Senate, not necessarily the idea that you need a high threshold to clear for impeachment. I actually think you should have a higher than 50. I think I'd put it. And honestly, that kind of depends on the facts on the ground. It kind of depends on polarization in a weird way. I know you could probably never drop a constitution that way, but but like it really depends.

I mean, I a 50-50 society, you know, with strong polarization and and by the way, like constant hardball, you just cannot have a recall that requires only 50.001 percent of it. Just I just I think that's unsustainable. It's my opinion. But I think That's very dependent on where we are now.

Now, like maybe in a different era, that actually would be fine because people would be more willing to say, OK, I didn't vote for Newsom, but I'm not going to just, you know, get rid of him because he had dinner at which, by the way, was terrible, obviously, but because he went to a dinner at French Laundry like that, that seems extreme.

0:47:43 Andrew: Can't yeah

0:48:42 Thomas: We don't have those people anymore. We basically just have, oh, what? It's the other guy. Yeah, get ready. Get him. Don't care how, any means necessary. And that will go both ways, by the way, honestly. And let's say there was a Republican governor who we were recalling. I still wouldn't want it to be this way. Yes, I imagine I would want the ability to recall the governor. I wouldn't want the winner to be somebody who got 21 percent, but there are 180 candidates. That's not how it should work.

0:49:08 Andrew: I agree entirely.

0:49:09 Thomas: All right. Well, again, thanks for the question. A lot of fun to think about. Uh hopefully uh maybe we change their mind who knows 2008, the residents of the Valley View apartment complex in Redmond, Washington, held a Halloween party. Dozens of people in costume mingled, drank, and danced, but before the night was over, one of them was murdered. The police had a suspect. His story kept changing, but his DNA was at the crime scene. When he finally came in for questioning, the detectives felt like they were a breath away from a confession, but it didn't happen. And so the police focused their attention on another man, a man with a criminal record whose DNA was also found at the crime scene. And he just so happened to be the only black man at the party. Suspect is a new true crime miniseries about cutting edge forensic science and mislaid justice, about race and policing, and ultimately the kinds of weighty decisions that cops and prosecutors make every day.

0:50:04 Thomas: Decisions that once made change lives forever and are almost impossible to reverse. And I gotta say, I love podcasts that will further drive home the fact that maybe the criminal justice system isn't perfect. Maybe a lot of it is based on, you know, happening to only be the one black man at a party, at a place. I love that about Suspect. And if you are a fan of true crime and if you're a fan of criminal justice reform, forum, you should check out the Suspect podcast from Wondery. Spoilers on the show. You'll have to listen for yourself and find out more about that. But safe to say, if you like true crime, if your interested in the and maybe, who knows, the virtues of the justice system, check out Suspect from Wundery.

0:50:50 Thomas: Follow Suspect on Apple Podcasts, Amazon Music, or you can binge all nine episodes ad-free by subscribing to Wondery Plus in Apple Podcasts or on the Wondery app. So you can binge all nine. They're already out. Go check it out. Suspect from Wondry.

0:51:06 Clip: And thank you, let's go!

0:51:07 Thomas: And now it's time to thank our Hall of Famers, our all-time greats. And unlike California, we're doing this the right way. We're, we are close to resolving the recall of the Hall of Fame section. We just got to agree on a new methodology. It's not plurality. No, no, it's, we'RE actually holding enough, uh, referenda to, to really figure it out. So we're still doing it.

0:51:27 Andrew: Thank you to Amy Stevens, your friendly neighborhood letter carrier, to Salty Seattle driver on YouTube, shows you where your turn signals and headlights are, to leftist, that again, leftists own guns to support root canal mitigation, not ineffective private insurance. I love that. Dr. Faustus, too. Has you or a loved one been hurt by shady seafood? Call the law offices of Habeas Porpoise today. To Matt Dunlap, now listening from Kazakhstan, Atomic Penguin at AtomicPenguin7 on Twitter, Joseph Vigiano, statehood for D.C. and Puerto Rico now, DrScoopLittle, Heather T., now 50, still fantastic. Well, congratulations. Now here's something we hope you'll really like, just just waiting for my university census date so they can kick us all back online, comedian Aaron Trahan at Comedian AET, formerly AKA at Game Jumper X, ooh, so he's going from game jumping to full-time.

I'm comedianing. Nice. Good luck. Hand woven, machine washable, natural fibers at kellywoveit.com. Yeah, I checked them out. It looks good. Trains are the most fuel efficient way to move cargo in the world. That thing in the attic. The fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star canteen. Republicans promised me court packing if Biden got elected. Where is my packed court? Yeah. Liberals own guns to support root cause mitigation, not ineffective gun control. I'm Matt and I get no welcome on cog diss. Well, see, you get it here. Sean McGovern, Agnew the Ancillarian, pernicious love, that Ateo support decarcerate, working to end mass incarceration in Arkansas, that is decarcerear.org, d-e-c-a-r-c-e-r-a-t-e-a-r dot o-r-g.

0:51:45 Thomas: Nice.

0:52:21 Thomas: Got a new thingy. Nice.

0:53:10 Andrew: Why is everyone obsessed with how long the Patreon Hall of Fame is? Girth is more important than length. Social justice alchemy, I agree with that, 69%, nice, Andrew and Thomas can read your name in 15 minutes or less while supplies last, tell Morgan, get Tom's son, Zach Bloom, Ray Pizza School, the corgi is in state A, his treats are in state B, and his human is in state C, on vacation in what court should he file, live baseball scorecards.com, legal is so handsome, California employment work accident or litigation questions, call or text attorney David Nitka, 310-776-5879, again, that is 310-776-5879, the Smiths, praise Bianna Hamilton, do take DNS advice from our live streams wisely, move to Florida in the teeth of the pandemic's fourth wave, please don't elect an right horse one, Gaifa, Icelandic boss mayor runs the pasture and tolerates no dissent, percent sweet as pie to people, oh, I thought at first that that might be like a magic

0:53:33 Thomas: Love it.

0:54:16 Thomas: Yeah.

0:54:16 Andrew: Card but then they were maybe

0:54:16 Thomas: Yeah. Were they trying to do a magic card thing? But I don't think it could be horse one. Like, OK. Anyway.

0:54:22 Andrew: It means their first horse. Well, you know, I'm on horse zero, so rest in peace, Brandon Bernard, we must abolish the death penalty, budget botanist, maybe last weekly plant, oh, that well, you know, depending on what we do, uh, Wolfia, yeah, yeah, absolutely, we want budget botanists to do some weekly plants, all right, a type of, it's Wolfia, a type of duckweed and has the smallest flower in the world, I have often wanted to give somebody the smallest flower in the world, so PSA, contact your financial advisor if the duration of your Patreon list reading lasts longer than four hours, Sparkle Donkey Tequila, the world's best tequila in the world, see the history at sparkledonkey.com, and I haven't plugged this in a while, they sent us tequila. It's good. It really, really, I'm not just saying that because they're patrons. It's good f-ing tequila. All right. New book, The Greatest Gift of All, A Logical Path from Religion to Humanism, by Mark McLean. Out now. I thought about making my name shorter so it wouldn't take up as

0:54:25 Thomas: Yeah. Oh, no. You can opt opt in one way or the other. Yeah, it

0:55:19 Andrew: Much of your time, but then I didn't. A gender fluid, multi-class, dual wielding, blade lock fighter. All right. Just get the clown horning vaccine, you clown horning clown horns. 75% of Tulare County DAs have less than two years of experience, and they're doing felonies, some are only provisionally licensed, I like my pork streaks paired with at Casa Agria and at Emperor's Brewery beer, as a Texan, I don't have a joke this week, just a hearty F Texas and F SCOTUS, yeah, we're with you, Adam Borschoff, Lee Sharp, GDT says we've been trying to reach you about your car's extended warranty, Thomas Kleberg, Ben Gazi and the buttery males, buddy freaking Guyerson, storm the fort, teaser for Hall of Fame shout outs, Supreme Court justices, SIS should have 18-year term limits, and so should Conrad Michaels, uh, no coin if this firm has ever failed the bar exam, Brian K., just read a quarter of the names every Monday, we'll still get the show once a month, and you can tell us the deadline to update that was in cap.

0:55:50 Thomas: Might

0:56:15 Andrew: So we would do that if we do that. Ledu, Lesbian, Fabulo. Edgy Veggie, Pop, Newhouse, Sassy Italy Tours. Doesn't know if touring is ever going to be a thing again, but we banned MTG.

0:56:15 Thomas: Be. That might be what we do. We'll see. Yeah.

0:56:28 Andrew: Marjorie Taylor Greene, just in case. Jennifer Tchaikovsky, D&D minus, cameo question mark. We have legal advice. If ye have coin, do not take legal advice from a coin. Mutually supported communities are harder to oppress. Join or create a local mutual aid group. Mike Hall, E.V. Huntington, Harvard alum, no hood. I would also like to congratulate Angus the Quirky. Ooh, I watched him win in 2019 and cheered on his 2021 title defense. All right. I enjoy mocking people who mispronounce adopted French words that mean a peculiar ability. I guess I am a forte teaser. Teaser, fourth teaser, Torsten Peel, and and a goat asks, "Would that, wouldst thou like to live deliciously?" Elect Thomas Smith president. American Honky-Tonk Bar Association. Support your local Peruvian restaurant. Alpha Kenny Body. Angry Mac Face. Penelope is

0:56:27 Thomas: Good

0:57:14 Andrew: Glad Sydney got sanctioned for Terpsichore. The Books That Burn podcast, reviewing fictional depictions of trauma since 2019. Support africapartnersmedical.org, providing volunteer U.S. MDRNs to bring the latest science, science-based practice to African MDs and RNs. This is not the greatest patron name in the world. No, this is just a tribute. April Poff, yay. Don't call me a mofo. I will have you know I'm an ex-mofo. I was a mofos for show, but I am a mofu no mo. Murray Gregerson, over 50 lawed awful movies and still haven't done A Few Good Men. Yeah, that's true. Well, well, well. If it isn't the consequences of my own actions. Actually, we can stop reading Patreon names anytime we want. It's not a contract and consideration is ongoing. Crowd sponsor of Defense Against Any Crowd Health Lawsuit. Thank you. Learned Handjob. That always makes me giggle. Put your boss on a performance improvement plan. Pass the PRO Act. The patron names will continue until morale improves. Jake, Chris Waltrip, and Seattle Pete. Take it away, Thomas.

0:57:49 Thomas: Point. All Employer evilly added an MBA clause after years of unemployment under threat of termination. Huh. Sorry, I don't totally understand that, but that, that's too bad. Christopher Brown, Sam Cedar, Philly live show 2022, I'll bring the cheesesteaks to the fully stocked basement bar. Platinum Night. Lawful Copter says, "Andrew, Thomas, from the bottom of my heart, thank you for everything you guys do." Uh, Mr. The Coin is rigging T3BE with a Chinese thermostat controlled by an Italian satellite. Odin is starting his first paid law job fighting for incarcerated people's civil rights. Crimer, no criming. Andrew has asked to be sent Transformers porn. Listeners with 3D printer access and erotic imagination, now's your time. Robert M. Canada has precedent saying Martians can't sue people in Ontario.

0:59:04 Thomas: Jolly V. Pelletier, I think, 1999. Okay, I envy them. We better look that up. Lou, now that Andrew has mentioned scrums and rugby, OA is my favorite rugby analysis podcast. Brevity, Nikomo Koska, famed soldier of fortune at your service. Black Canyon of the Gunnison live show. Polly Hernandez, "These are just simple farmers, people of the land, the common clay of the new West, you know, morons." Emily Rainbow Spence, in times when freedom seems lost, great souls arise to reclaim it. Six, one, four, plus two, red, to cast what. Okay, uh, I don't, I don't know, "The Deckbook at Halifax.com," I don't know if that's like a flavor text and you're trying to get me to get that because I, I have no idea. Darth Mandy Pants, one fabulous book thrower. Jason Copas, Ian Hamilton, another Minneapolitan waiting for our live show in Minneapolis. Hey, Arizona, support, support Aaron Lieberman for governor.

1:00:00 Thomas: Spent my charity budget for the year. Help. Need everyone to roast the coin on Vulgarity for Charity. Medicon 7 pins beans now shorter for your benefit. Stop calling him Uncle Frank. Nate Drex has to call him Dad. How much law could a law crack in practice if a law cracking could practice law? 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 Gelbach, CivilPoliticsRadio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. Jennifer Kratch, I talked to Andrew and we're going to keep reading only Mike Hudson's name and any lesbian related name. My stepdaughter is a fabulous lesbian and all I got was this Patreon name. John Bilderbeck, my friend's cousin, mixed coke with cop rocks and he died.

1:00:47 Thomas: Stephen Balticate Sandoval, Nirvana foresaw Republican anti-vaxxers. "I feel stupid and contagious. Here we are now, entertain us." Yeah, there you go, that's right. Philip Kizer, Andrea the Arbitrary and Capricious, give to mosneeds.org, give to most needs.org. Guyer Surgith, all these people are Gare Surgith, sorry, all these people taking horse dewormer are just trying to remain in a stable condition, not that. Chris Wallace, Absyon, sorry for making you use that last one, so long, it was dumb. Anyway, Jonathan, Lord Kimbote, "No, your honor, I am not a cat, nor am I a potted plant, but I am a karaoke legend, if that helps." Dude, edit Wikipedia. Yes, you too can contribute to the world's foremost source of free knowledge and maybe get sued by a quack.

1:01:33 Thomas: Milo Meadsong wishes all Stephen Breyers a happy retire now. Join your labor union. Together we bargain. Alone we beg. Peter Piper bequeathed pickled peppers, producing pickled pepper perpetuities. The swordfish has no natural enemies except except for the even Mightier Penfish. Alfred Wallace. Andrew is always fantastic because Thomas's theme music holds the rights to fabulous. False. WordOrigins.org, your source for word and phrase origins. Anonymous. My witty names aren't original and my original names aren't witty. Schadenfreude from Republicans get their consequences for evil is totally my kink. RIP Notorious RBG. Nerd Gnostic. They They said I could be anything, so I became two fabulous lesbians. Derek, reigning champion of Yodel Mountain Fantasy Football League. Oh yeah, shoot, are we doing that? Maybe I'll get that started again.

1:02:22 Thomas: Big Easy Blasphemy. Please don't read this on the pod. We don't need a call-out. Thanks for what you do. Well, I had to read it on the podcast. A string of unpronounceable characters. RhondaTheDork.com. Do not take medication advice from your veterinarian patron. Do not take ivermectin, you idiots. Malika Chandler. They said I could be anything, so I became Two Princes Who Adore You. Soggy Pants. Support public transit, bikeable and walkable cities to undo the destruction of the growth Ponzi scheme. Hmm. Sakashite Fukasumi dropping out of Hall of Fame due to sudden drop in income. I'll be back. Oh, man. End of an era. That's too bad. That's, I mean, you've been here from the beginning.

1:02:20 Andrew: We'll have to, yeah, we're down to the wire.

1:02:59 Thomas: I'm so sorry to hear that.

1:03:00 Andrew: I know. We'll hold your place in line for you. You know, take care of you and yours, buddy.

1:03:02 Thomas: Yeah, yeah. Absolutely. Adopt a homeless pet and oppose declawing and ear docking.

1:03:21 Thomas: I agree with that 100%. Thank you so much, Hall of Famers. I do tend to think the best idea is going to just be divided up and do everybody once in the month, you know? That way we still get everybody, we still get through it. The opt-in is an idea, but the opt-In is a bit of a pain, plus if everybody opts in, then it's still too long of a segment. Maybe that monthly thing is the way to go. We'll see what the polling results say.

1:03:53 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:04:00 Thomas: Now it's time for T3BE, new set of questions, answer time. This is, you know, really get gonna be

1:04:05 Andrew: Leading off with real property, as always.

1:04:07 Thomas: Yeah. I gotta get a sense of where we're going with this question set. Yeah.

1:04:09 Andrew: Yeah. Uh, So this was super complicated fact pattern, um, it was bartender owns black acre which, I, that's it, that's like a 13th century Saxony way of like referring to piece of property. I don't know. Yeah.

1:04:25 Thomas: I liked it, it was quaint. Yeah.

1:04:28 Andrew: Undeveloped piece of property next to his bar. On March 1, he conveys it to an investor who paid value, wanted to build an apartment complex, but the investor did not immediately record his interest. On April 1, still undeveloped Blackacre is sold again by the bartender to his son. The son did not know about the previous conveyance to the investor. The sun then immediately went out and recorded the deed because he's not a moron, right?

1:04:55 Thomas: Yeah.

1:04:55 Andrew: May 1, the investor finally goes about recording the deed and hires a construction company to come digging on the site. Then on June 1, The Sun turns around and sells Black Acre to his friend. Then on July 1, the bartender dies and his will probably, and again, this seems the stupidest part of the actual, actual, uh, but but it actually isn't because people update their wills incredibly infrequently. Right.

1:05:18 Thomas: Yeah. Good point.

1:05:25 Andrew: So, what you imagine is his will which you know was written 20 years ago left Blackacre to his brother and then the brother is like oh hey great I always I always wanted Blackacre, I'm gonna go record that. Then August one, the friend who bought from the son records the deed, and then. Then the jurisdiction has a race notice recording statute, which in an action to quiet title. Quiet title means to establish who has the superior rights to the property.

1:05:25 Thomas: In the, the '80s, Yeah, mm-hmm. Up better record that Yeah. Yeah.

1:05:48 Thomas: Here we go right? But I do love the idea that that came from like the county recorder. Yeah. Just feeling, I'm tired, I don't want to hear any more claims to this deed. Quiet. Well,

1:05:57 Andrew: Right. Yeah, yep. That's exactly right. Who will have the property rights to Blackacre, figure you, which is A, the investor, B, the son, C, the friend, or D, the brother. So obviously the first question is, what's a race notice recording statute? And the answer is century Saxony common law rule is first in time, first in right, right? Yeah, exactly. But a race notice recording statute is designed to protect later purchasers who take without notice and then become the first to record. And the idea is if the first person hasn't recorded it, then you, when you buy the property, have no way of knowing that you didn't buy a valid property that

1:06:21 Thomas: Yeah. Okay. Stitching time saves Black Acre. All right.

1:06:49 Thomas: Huh. Yeah,

1:07:01 Andrew: Was unencumbered by somebody else's ownership because they didn't do anything to record it. So nothing you could have done. Right. So think about the son here. Nothing the son could have done at the time when he buys Blackacre from his bartender father would have revealed the existence of the investor. Right? So it's not recorded. He didn't know about it. So therefore, a race notice recording statute says we want to protect the son as an innocent purchaser. So you picked the sun.

1:07:18 Thomas: Right.

1:07:34 Thomas: By the way, this was my same logic when the guy was too lost mentally to sign a contract. I thought, thought, well, why don't you protect the person who didn't know that and still did it? Didn't apply there. This is why the law is hard.

1:07:49 Andrew: That's true. So, uh, and it's about to get harder, so I've just said the whole purchase of this, the whole purpose of the statute is to protect the sun. You picked the sun b as the answer. You and the coin both, but you're wrong, right?

1:07:52 Thomas: Yeah. Yeah, but he sold it. Yeah yeah.

1:08:01 Andrew: And the reason why you're wrong is because the sun sold the property to his friend and then the question is does the The

1:08:09 Thomas: So the issue is the friend took too long. It took that same amount of time to record, which is what I identified and probably effed myself, but nobody with a valid claim tried to record in the interim. Is that that the problem?

1:08:23 Andrew: No, it is that the level of analysis is who owns the property in order to convey it. Once we decide that the son properly owns the the the property, then it doesn't matter when the investor goes to record it. It doesn't mater.

1:08:36 Thomas: No. Yeah, but the bartender, the the next step there, the brother, yeah, yeah,

1:08:44 Andrew: Right, right, right. Right. Right. It doesn't matter that anybody further down the line. Right. Because now the son validly owns the property. The only question. Right. That's relevant from the fact pattern is that now there's construction equipment on the site. And you might look at that and go, wait a minute, shouldn't that count as some kind of notice to the friend, right, that maybe you shouldn't buy this piece of property? And the answer to that is that the race recording notice statute has a shelter rule in it. Right. That says any grantee, in this case, the friend that takes possession of property from somebody who is protected by the recording statute is protected, even though they themselves might not have been because of subsequent failures to record or whatever. So so nothing else after that matters. It's a ridiculous technicality. It is almost impossible to figure out unless you think about the law from a top down perspective and you say, oh, what this is trying to do is validate the son's rights. And what does the son want to do? The son wants to sell the property over to his friend. So that

1:09:27 Thomas: Okay.

1:10:02 Thomas: Well, yes, yes, but fact that the friend took also a long time to record the deed, and somebody else recorded the deed in the interim, seems tricky, at the, to say the least. Confused.

1:10:15 Andrew: It seems tricky. But the person who recorded in the interim, their chain of getting there was invalid.

1:10:22 Thomas: Okay. So that's, that is what I said a minute ago. And, and you, okay. You disagreed with That's me. Why I was confused. Took the same out of time, but in the interim, there was no, like the deed that was recorded, didn't actually have a legitimate claim. So it'd be like, okay, here's a way to clarify. If instead of just the bartender dying and leaving it to somebody, instead of that happening, if the son had died and left it to somebody, then I guess that might make sense.

1:10:26 Andrew: Oh, exactly right.

1:10:48 Andrew: Then that's exactly right.

1:10:50 Thomas: Okay. Gotcha.

1:10:51 Andrew: Then the question would be and that puts the proper level of inquiry back where it belongs, because the the the race notice recording statute here is not protecting the friend's interest. He doesn't win.

1:10:56 Thomas: Yeah. It's the son.

1:11:05 Andrew: He's not the right answer. Right. It's protecting the son's interest, and so if the friend takes forever to record it and the son is like, all right, well, this is effing stupid. Stupid. I'm going to I'm going to convey it to somebody else and then conveys it to somebody else. And that other person beats the friend to recording it. Then that other person would properly have title.

1:11:05 Thomas: Yeah, yeah. Well, well, hold on, yeah, It's protecting Then it still would be protecting, you somebody that other than the sun, but it would just be protecting the person who actually bought it and recorded it promptly, okay. Yeah, That was, uh, boy, I actually could have gotten this one if I hadn't, uh, gone that extra step. I, I would have actually answered that it was, uh, the friend, but uh, yeah, instead of took a gamble that it was, instead of like who does it first, I took the gamble that it was some sort of time limit. Yeah.

1:11:25 Andrew: Yeah, exactly right. Exactly right. Yeah, I know.

1:11:54 Andrew: I know I really liked your analysis on going through.

1:11:55 Thomas: It was I mean, it was

1:11:58 Andrew: It's the same time period.

1:11:58 Thomas: A toss-up. I could have

1:11:59 Andrew: But yeah, well,

1:11:59 Thomas: Gone either way, but I was like, well, maybe if it's a, if it, because of the way they did the timing so similarly, I thought, like, maybe the race notice recording statute will be based on something like that, like a 30-day thing, because of that fact that, you know, that the times kept being consistently like, like two months or one month. So that's, that's the gamble I took and I lost.

1:12:20 Andrew: At least the coin lost with you.

1:12:22 Thomas: Yeah, it's true. Stupid coin. What a dummy. All right. Well, that was, uh, uh... an auspicious beginning to the next question set, Andrew. Mean, I'm in for doozies. This could be another maximum porkage. We'll see. But who saw through the maximum pork age and actually got this question right.

1:12:25 Andrew: Yeah.

1:12:42 Andrew: Well, Thomas, this week's winner is Craig K. Bryant, who writes, C, the sun's friend, but I will stupidly say too much in that I think the answer is C under any standard. The son won both the race to the courthouse and had no notice of the prior sale. So race notice and race slash notice all covered. Craig, great answer, and congratulations on being this week'S winner. Everyone, let's give them a follow. That is at Craig K. Bryant on Twitter, C-R-A-I-G-K-B-R‑Y-A‑N-T. And congratulations on being this week's winner.

1:13:16 Thomas: Alright, that's our show. Thanks so much for listening. Again, stay motivated. I was going to say mad, and maybe that's not healthy for everybody, but at least stay motivated Because, boy, between this recall and Texas, I mean, oh, there's a lot we got to stay engaged about. So please do. All right. We will see you for Rapid Response Friday. See you then.

1:13:34 Andrew: Yep, absolutely.

1:13:38 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:14:12 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.