OA552: Will Joe Manchin Save Democracy? No, Really! ... Stop Laughing...

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 552. I'm Thomas. That's Andrew. How you doing, sir?

0:01:23 Andrew: I will tell you it's been a rough day, but I listened to the intro quotes on the new ones. Yeah, and man, are they just the chef's kiss.

0:01:26 Thomas: Yeah. Ooh, bag of money.

0:01:33 Andrew: They're so good. So, I'm back up to being Mr. Fantastic.

0:01:39 Thomas: Aww. Well, that's nice. I am glad we could do that for you. That is awesome.

0:01:43 Andrew: Yeah, you did a great job on those.

0:01:44 Thomas: It is always fun. Patrons do a great job of suggesting them. And after I do them, I end up hearing from a bunch of people who are like, oh, do this one. And it is like, well, sorry, too late. But, you know, everybody, make sure sure to submit it next time and uh vote on the ones you like. It's a super fun thing. If anything, we should probably change them more often so we get to do that more, but that's okay. In other news, Andrew, we've got a Law'd Awful Movies I want to mention here at the outset. It, um, is a long edit. It went very long. I'm surprised the movie is physical evidence yeah we can at least we tease it I'll get it edited and out within, uh, you a few days I hope. Um, but if you want to watch it first, it's it's a delightful terrible watch physical

0:01:54 Andrew: Yeah. Yeah.

0:02:08 Andrew: The movie is nothing. Yeah, it's it's you don't you don't you don't want to watch it first. It's free. It's Free on Amazon Prime. And yeah, that is that is indeed price to move. Yeah, I'd say it's a Burt Reynolds, Teresa Russell movie.

0:02:28 Thomas: Evidence it's the right price. Yeah, I mean it's still not a great deal at that

0:02:38 Andrew: Movie

0:02:38 Thomas: Price but it's, you know, it's Burt Reynolds, uh and it's an hour and 39 minutes or something like that, and we did a two hour and 39 minute LAMB about it that I will hopefully edit down, uh, so look forward to that, uh, patrons, it's a lot of fun. We're back to our old Law'd Awful Movies hijinks, uh, for this month. Can't wait, yeah

0:02:38 Andrew: Oh it is Burt Reynolds, so there you go yep yep yes we did that was that was a lot of fun. I will, I will tell you we had a good time, uh, doing that one. Little bit more on the, uh, on the pre-show news. Um, obviously we have listeners, uh, who are in Kentucky, who are potentially subject to the, uh, I don't know why they keep calling them the quad state tornadoes. I think it's hit like six different states.

But, um, know if you've, if you've been subject to the severe weather, um, uh, you know, obviously, uh, our hearts go out to you. Make sure, uh, that you know you're safe. You let us know that you're save. Um, uh, that's pretty serious stuff. Um, uh, and related to that, right, this is going to come out on the 17th. This is when, when people are making their holiday travel plans and visitation plans, and we've got the Omicron variant. Like I, you, you cannot be too safe.

And if there was something that feels like, well, you know, like Uncle Frank really hasn't seen the kids and, like, knows, you be, be smart, be safe, travel smart.

0:03:47 Thomas: Uncle Frank's away from your kids, everybody that's my, that's just me don't take family advice from a Thomas, need

0:03:49 Andrew: Yeah, that's, it is it's tough, and it's super tough at the holidays, that's when you get the most pressure. But if a gathering feels weird, you don't do it. So I don't, I don't to be a downer, but, we do owe it to our listeners to say travel safe and gather safe. Um, and I want to end on a high note. Last kind of pre-show note. Again, I have to be a little bit oblique about these things, but I spoke this morning to another member of Congress, and we may be moving towards draft legislation on Christian health share ministries.

0:04:25 Thomas: Any help, with that, or it, you got got it.

0:04:27 Andrew: I will bring you in.

0:04:28 Thomas: Okay. Well, I'm here. I'm just letting you know, my pen is available.

0:04:32 Andrew: Good, good, good, again, I just want to say, if you were a listener, if you sent in stories, my gosh, the listeners who sent in actual documents, like, it, you helped make this happen. So if you get potential legislation, and there are a bunch of options that are being considered, um, know that you, uh, that you played a part in that. I'm so proud of, uh, of the show and our community and our listeners, and, uh, and thank, thank you all.

0:04:55 Clip: It's been an honor serving with you all. Autobots, roll out!

0:05:00 Andrew: As we're recording this, news came out this morning that, uh, the Biden administration is going to, uh, shelve efforts to pass, uh, the Build Back Better Act. We described all of the very good things that are in that act. Um, to pivot to passing voting rights legislation. And I want to unpack all of that. But first, I want to say this, right, this goes against every bit of political conventional wisdom that there is. Right.

And I want to articulate what that is, you know, somebody with an undergraduate degree in political communications, conventional, right? Wisdom, wisdom, what a traditional politician would do, who is at 43 percent in the polls right now, which is where the polling average of Joe Biden is now, that, that's ridiculous. But, but nevertheless that's where it is, and right, that is on the back of fickle voters in the center, right, the kind of people who are like, well, you know, gas prices are high, and they said inflation, and he hasn't done anything in a couple of months. And so, you know, I'm unhappy. And the conventional wisdom is you pump up those numbers by getting something popular done.

And that then gives you the political capital to do something that is more niche, that is harder to understand. That was the plan with Build Back Better. By punting on that, Joe Biden is doing, if you are a critic to the left of Joe Biden, like this show, doing what you want him to do. Right. He is giving up on a package that is potentially broadly popular with the center and with mainstream, just Democrats, but independents in favor of something that is much more important, but is an incredibly niche issue. And right. I know it. I mean, Thomas, I love it when you sort of, you will encounter, right,

0:05:44 Thomas: Yep yeah

0:06:43 Andrew: Things in the political sphere that that just sort of remind us of just how inside baseball the show is. Right. Like like 80 percent of America cannot define what the filibuster is. When Right. You talk about voting rights, that is not a pandering issue. That is a base issue.

0:07:01 Thomas: I don't even know if it's anything that, I mean, I guess it's an issue kind of to rally people, but it also is more just like giving those people the ability to vote for you, you know, it's something that you may not even need to tell anybody about necessarily to still have a good effect on your, uh, chances are

0:07:01 Andrew: Yeah. Yeah. Yeah. No, that that's right. And so the act that will be up. That Right. Is sort of the tip of the spear here is Senate Bill 2747, the Freedom to Vote Act. Among its co-sponsors are one Joe Manchin from West Virginia. It is easy and therefore we do to hate on Joe Manchin. But as I as I go through and describe this bill, I will tell you, you cut know, to the chase. Like we wrung our hands about Joe Manchen and the like, you knows, well, the spending's got to be less and this and that. And Joe Manchin, you absolutely should describe him as a centrist, as center right on spending issues. He is a mainstream left on voting issues. The bill that he has co-sponsored, as I go through, there is nothing that I find objectionable about this bill.

0:08:09 Andrew: If you want to pull stuff out, you can pull out the, like, you know, there's got to be paper ballot trails and stuff like that, as responding to imaginary concerns. Right. That's true. But again, I don't have a problem with better accountability with our electronic voting systems, even if it is not, you know, even if the, you know, big lie is a manufactured big lie in 2020. That's the only thing that you could criticize. Otherwise, this bill falls into three key areas that are everything that would want to be on your wish list as left member of the Democratic Party.

0:08:47 Andrew: They include about voting, provisions about redistricting, and provisions about campaign finance. There's a bunch bunch of other stuff in there, too. But those are the three main areas. So so you want to talk gerrymandering? Let's go to that one first.

0:08:45 Thomas: They, ending gerrymandering

0:09:01 Andrew: Let's Go to redistricting.

0:09:01 Thomas: Do want to talk gerrymander

0:09:02 Andrew: Yes, So do I. So this is Title five of the legislation of S twenty seven forty seven. Again, we'll link it in show notes. It does a lot of things about gerryandering. But the biggest comes from section 5003c subsections one and two, and I'm gonna start reading that to you. 5003 c1 says prohibition: a state may not use a redistricting plan to conduct an election that, when considered on a statewide basis, has been drawn with the intent or has the effect of materially favoring or disfavoring any political party, um,

0:09:02 Thomas: That's pretty plain

0:09:48 Andrew: That's Pretty plain, pretty great language as far as I'm concerned.

0:09:48 Thomas: Language there, as a textualist, I think that will mean you can't gerrymandering, right, even Neil Gorsuch will have to say yeah

0:09:58 Andrew: It, that's that is yeah And and so then you might say, okay, what's the point behind that? Drawn with the intent or has the effect of materially disfavored, right

0:10:08 Thomas: I was wondering why not just the effect of, gotcha

0:10:10 Andrew: Yep. So, uh, the first is that, um, it, has to do with the kind of evidence that the, that the court will consider. Right. So if you just say "has the effect of" then being able to introduce evidence of like, you know, dipshit Republican state representative like, well, you know, this is going to help advantage, wink wink, non-Hispanic whites, all of a sudden now you can introduce that, that evidence in and the court can consider it. And Then materially favoring or disfavoring any political party, what does that mean? Well, that is then defined in the next section of the legislation.

It says determination of effect, the determination of whether a redistricting plan has the effect of materially favoring or disfavoring a political party shall be based on an evaluation of the totality of the circumstances, which at minimum shall involve consideration of each of the the following factors. And then there are four factors that they set forth. So, a computer modeling based on relevant statewide general elections for federal office held over the eight years preceding the adoption of the redistricting plan, setting forth the probable electoral outcomes for the plan under a range of reasonably foreseeable conditions. Okay, this is taken directly from

0:10:38 Thomas: Yeah

0:11:29 Andrew: Plaintiffs' experts in litigation challenging gerrymandered districts over the past five years. We, right, have finally caught up. We've talked about the Red Map, and you can just kind of plug in the numbers. And so our experts on the side of breaking that down have then, for example, one of the things that came up in the Wisconsin legislation was, uh, plaintiffs' expert ran, you know, a hundred thousand Monte Carlo simulations and was like, well, in 99,999 of these the Republicans had less power than the plan that you've adopted.

0:11:37 Thomas: Yeah.

0:12:03 Thomas: We've We've got some Dr. Strange level stuff there. I've seen 14 million futures of districting, and uh, there's only one that is, uh, as unfair for Democrats as this one. Oh.

0:12:15 Andrew: That's that's exactly right, and so, uh, so this specifically would say by law, yeah, use that kind of analysis. You look at the last eight years of history.

0:12:23 Thomas: Wow. We have to use Dr.

0:12:24 Andrew: Yeah.

0:12:24 Thomas: Strength, oh geez, okay. He's not even American, we're gonna, all right well okay, if that were, if that's what we need to do, Andrew, I think we should do that, Benedict Cumberbatch, you got a new full-time job with this terrible American accent No gerrymandering, everybody here, so

0:12:35 Andrew: So we I, uh, I'm sorry to tell Benedict Cumberbatch that that, uh, he's going to be enlisted for for these purposes. B, an analysis of whether the redistricting plan is statistically likely to result in partisan advantage or disadvantage on a statewide basis, the degree of such advantage or disadvantage, and whether such advantageor disadvantage is likely to be present under a range of reasonably foreseeable electoral conditions. OK, that's the kind of standard numerical analysis.

0:13:10 Andrew: C, this, I'm going to read you the really, really important part, right? A comparison of the modeled electoral outcomes for the redistricting plan to the modeled electoral outcomes for alternative plans that comply with this section, in order to determine whether reasonable alternatives exist that would result in materially lower levels of partisan advantage or disadvantage on a statewide basis. And then this is the key language, for purposes of this subparagraph, alternative plans considered may include both actual plans proposed during the redistricting process and other plans prepared for purposes of comparison. So again, again, taken.

0:13:47 Thomas: We can make them, we can be like, look, this one would be way more fair.

0:13:48 Andrew: Yes. Yeah. Taken from the way in which these cases have been litigated and the kinds of evidence that That has been shockingly persuasive, except, you know, not to the Supreme Court. Then D, any other relevant information, including how broad support was for the redistricting plan among members of the entity responsible for developing and adopting the plan, and whether the processes leading to the development and adoption of the plan were transparent and equally open to all members of the entity and to the public. So, yes, that means all the Republicans got together and in a room and like sprung this on the legislature and Democrats weren't invited, which is how these plans get crammed through Republican state legislatures, would then be evidence that the plan has been drawn with the intent of advantaging the Republican Party.

0:13:57 Thomas: Yeah.

0:14:42 Andrew: Does it not sound good? But let me add one more really, really good thing. And that is In the procedural section, right, how this, this gets implemented, there is both. It permits the attorney general to bring a civil action for relief, right, to say, oh, hey, I've just looked at what's going on in Pennsylvania and I'm going to sue them, or it allows any citizen of a state who is aggrieved by the failure of the state to meet the requirements of the constitution or federal law, including this law, with respect to their redistricting, may bring a civil action in the United States District Court for the applicable venue for such relief as may be appropriate to remedy the failure to do so. Okay, so in other words, if I'm a voter and I live in the district, I can bring a lawsuit challenging that redistricting. And the procedures expedite consideration of the case.

0:14:42 Thomas: That all sounds really good, okay. Huh.

0:15:40 Andrew: Case in the U.S. District Court for the District of Columbia, if I think it's going to be a more favorable forum. And it mandates that I love. Again, you know, you want to talk about a little bit of hardball. This is Section 5006A6. It says a final decision by the district court shall be reviewable on appeal by the United States Court of Appeals for the District of Columbia Circuit. There shall be no right of appeal in such proceedings to any other court of appeals. Such appeals should be taken within 10 days. A final decision of the Court of Appeals may be reviewed by the Supreme Court by writ of certiorari.

0:16:20 Thomas: I thought it was writing out the Supreme Court, but then the last thing, yeah.

0:16:23 Andrew: No. There are other areas that are silent as to whether they're they're writing out the Supreme Court. I don't think you want to try and put jurisdiction stripping in here as well. But think about what this does. What this means is that in states that have a history of gerrymandering, particularly for racial or for partisan advantage, you now are not going to the conservative courts of appeal that sit above those states. Right. This will not be reviewed by the Fifth Circuit or the 11th Circuit. It will be reviewed on appeal by the D.C. Circuit. And that's huge. Negatron might want to say, OK, but what's to stop the Supreme Court from just coming in and overturning everything? The answer is there are too many of these cases. Right. It would it would be too much. Could they jump in and overturn, you one or two by putting them on the. They could do that.

0:16:33 Thomas: What?

0:17:16 Thomas: So someone challenges a gerrymandered thingy, they, they win, and then it goes to the Supreme court and and they just reverse on a naked power grab that would, know, because there's no possible justification, right?

0:17:19 Andrew: Right and then could the Supreme court reverse it? Yeah, not

0:17:28 Thomas: I mean, this is ironclad language. Well, first off, uh, we obviously will have to talk about the filibuster and all that. I'll leave that aside for now and say let's say, uh, and we do get this bill, uh, passed, uh, that wouldbe amazing, would it be in time for the midterms? Would that, that, though, it's cutting it a little close, the great Dr.

0:17:29 Andrew: Not a legal one. Yeah, no. Right.

0:17:43 Andrew: Yes, it would be in time for the midterms.

0:17:51 Thomas: Venkman says in Ghostbusters 2. Cutting it a Little Close. Would that be justification for the Supreme Court to be like, you know what? Sure, the law is great. We get it. You know, great law. Good job. But a little too close for this midterm. So we're going to say you can't, you don't have to do it for this upcoming election. Is that a possibility?

0:17:51 Andrew: So Could they enjoin the entire law from going into effect prior to the midterms, they could? But I will tell you that this law is written with severability clauses and contains enough discrete matter cases that that strikes me as, as unlikely. Likely, right. Even with this hyper partisan Supreme Court. Now, you know, is there a bar so low Amy Coney Barrett cannot crawl under it? I mean, you don't want to. Yeah, but will see this expressly reiterates 60 times that it applies to the 2022 elections, elections, so, um, Yeah.

0:18:37 Thomas: Yeah. We'll see.

0:18:50 Thomas: Really? Okay. Okay.

0:18:51 Andrew: So, uh, it is, meant to to take effect, um, and as we talk about, you know, some of the things it is also very clearly meant to supersede, you things like the Georgia voter disenfranchisement law. Right, so well let's let's start, so, so we talked about one major, which was redistricting. A second major area that this addresses is access to voting.

0:19:03 Thomas: Yeah. Did they actually call it that? Sorry.

0:19:15 Andrew: And I want to talk about five specific things that it does, which, again, comprise pretty much the entirety of my wish list. So, number one, every state must have automatic voter registration, including over the Internet and same day voter registration. Right.

0:19:15 Thomas: Oh

0:19:32 Andrew: So number two, every State must have universal vote by mail. Right? This is Section D311A1. If an individual in a state is eligible to cast a vote in an election for federal office. Right, so not have that right rescinded by being a felon, right, an ex-felon. Now, we should fix that, but you know, one thing at a time.

0:19:32 Thomas: My God. Wow. That's awesome.

0:19:52 Thomas: I'm not looking at gift mansion in the mouth.

0:19:54 Andrew: Yeah, Right. If an individual in a state is eligible to cast a vote, the state may not impose any additional conditions or requirement on the eligibility of the individual to cast the vote in such election by absentee ballot by mail, period. End of sentence.

0:20:10 Thomas: I never knew I could have this kind of reaction to proposed legislation, Andrew. This is, I'm getting a little flushed. I gotta, I'm going to, I're going to mute for a minute.

0:20:11 Andrew: Yeah, I think you should. While Thomas is mute, I'm going to add to that. The state can't require you to show ID or have a valid driver's license in order to vote by mail.

0:20:24 Thomas: Oh, so whoops. Sorry. Okay. Okay. The, the McMahon meme or whatever.

0:20:32 Andrew: Right. If the way in which they throw out mail-in votes is by signature matching. This legislation says if they use signature matching, they must have a due process in which you are informed as soon as possible, but within one day that you are. So I guess same day, they could also inform you as soon as possible, but within one day that your signature has been unmatched and you have the opportunity to come in and cure that deficiency. If they don't provide those procedures, they cannot throw out ballots on the on the the, you know, well, we looked at this, signature doesn't look exactly like the one on your driver's license from 1989, right? Um, they they can't do that trick anymore.

0:20:50 Thomas: Wow.

0:21:16 Andrew: I- I've got more. Universal early voting of at least 15 days in every state, with the polls open at least 10 hours a day, and election day is a federal holiday.

0:21:15 Thomas: This sounds too good to be true. Wait, sorry, did I hear that right? Election day is a federal holiday. Wow. I was actually going to ask that earlier, but I thought it was too good to be truth. So I didn't.

0:21:35 Andrew: More. But wait, there's more. Outlawing what I would call voter suppression dirty tricks. So one of them are like, this process is called voter caging, right? Uh, this is what Ohio did, um, but other states have followed suit. Uh, that is, um, a a government agency will like send out a card, right, and be like, "Hey, you've got to send this card back in in 11 days." And if you don't send in the card, then you get put on a list, and the list says, well, you know, they didn't.

0:21:38 Thomas: Right. Yeah. We assume you hate voting and we'll never do it again. All

0:22:05 Andrew: Right, then they use that to cage to, right, voters as being ineligible. Um, you can't uh do that from any other government agency, right? So you can still have, um, and believe me, like whatever is left here, Republicans will, you know, you know, seep like water to fill those gaps. Um, you can can still test to see that the the state election commission can test to see if you live somewhere, but they cannot rely on other state agencies to create a list of ineligible voters, okay. Has been the practice of of voter caging, also when it comes to purging voters off the rolls. It expressly directs. It says, yeah, if somebody doesn't live in a district anymore, they may be purged. But purposes of purging, after you send out a notice, the following factors or any combination thereof shall not be treated as objective and reliable evidence of a registrant's inability to vote.

0:23:03 Andrew: A, the failure of the registrant to vote in any election, be the failure of the registrant to respond to any election mail unless the election mail has been returned as undeliverable, and see the failure of the register to take any other action with respect to voting in any election or with respect to the registrant's status as a registrant, right? And so again, I don't underestimate the the power of Republican scumbags to come through, but what this says is if you're going to declare somebody ineligible, they have receiving their mail at the address where you try and contact them, right? Cannot just say, well, they they didn't return these six cards or they didn't register in the last election, so they probably don't care about ever voting again, right? These are not valid reasons for purging somebody from the from the voter rolls, um.

0:23:49 Thomas: Right. Well, I'm going to go ahead and declare this as a fantastic bill. I know I'm sure there's more amazing stuff, but I think maybe we need to take the time to talk about how this could possibly happen, right?

0:24:01 Andrew: That so, we should before and we do that, I just just want to say the fifth category includes uh prohibiting denying food to people in line, among other things of voter intimidation. So when you say this was crafted

0:24:08 Thomas: Well, yeah. I hope the language is like, can't believe we need to write this down.

0:24:13 Andrew: It it, it kind of does. Um, there is Subtitle Eight, preventing restrictions on food and beverages at polling stations. Um, and it says allowing volunteers to donate food and water to all people waiting in line, regardless of their political preference and without engaging in electioneering activities, helps ensure Americans who face long lines at their polling place can still exercise their constitutional right to vote without risk of dehydration, inadequate food, discomfort, and risks to health. So yeah, um, so it's clear where this is taking aim. Um, with respect to your question, how does this pass, this this passes, uh, with the same kind of procedure, uh, however specifically narrowly tailored, uh, that you would use in, uh, blowing up the filibuster, right? Which is they're one of two options, uh, you can move to suspend the rules, or you can appeal to the decision of the chair with respect to, uh, the amount of time left to debate and, uh, in both cases, um, you would need exactly 50 votes plus the vote of the Vice President. Yeah.

0:24:23 Thomas: Wow.

0:25:19 Thomas: I should have clarified. I know that a hypothetical body of 50 people who wanted to do this could do it. We have to play by Manchin's, try not to curse, family show. We had to play by Mansion's conceptions of what is OK. And is there a way to pass this that you think, in your opinion, I guess, will be OK with him? Because it's one thing to say he sponsors it. Great. Awesome. He's cool.

0:25:30 Andrew: Yeah, it's this is his bill, so

0:25:48 Thomas: But but, you we've seen this before. I mean, we're seeing things where it's like, OK, imagine go get your Republicans are going to vote for you. And in the past, from my memory, it's Like those don't go anywhere. Yes, he supports it. But if if he can't get Republicans to vote for it, which he absolutely will not be able to on this. What's your prediction on what he will do?

0:26:07 Andrew: My prediction on what he will do is, um, I'm gonna, I'm going to go out on a limb here, and I am going to be, I'm going to on the mantle of Optimist Prime. And I think that you would have to be incompetent at a level that I do not think you could attribute to Joe Biden. I will tell you there is some very weird procedural weirdness in terms of the last time this bill came up for a cloture vote. And cloture is the vote that is to shut off debate that requires 60 votes. It was fifty one forty nine. And and forty nine Democrats, 50 Republicans, and and one Democrat. And if I asked you, which Democrat do you think voted against cloture to keep this open? Knowing,

0:26:19 Thomas: Wow. Huh? Well,

0:27:05 Andrew: By the way, right, it's obviously not Manchin.

0:27:05 Thomas: I, I, yeah, you've, you set me up. Sounds

0:27:08 Andrew: It's obviously Not Cinema, because

0:27:08 Thomas: Like not mansion. And while I wouldn't have said, obviously not cinema, but okay. God, wait, wait. When was this?

0:27:12 Andrew: That would have been that would've made this too easy for you. This vote was taken October 20th. So just about two months ago.

0:27:20 Thomas: I can't come up with, yeah. I don't know. I can' t come up with like what, what this would be based on if it's not those two people. Tester. I don't know.

0:27:22 Andrew: Yeah. Yep. So you like literally I think you could get through the entire Senate without coming up with Chuck Schumer. So when I say procedural weirdness, this is, hey, we intend to revisit this.

0:27:33 Thomas: Wow. Wow! So is it a way to keep it alive or something? Or keep,

0:27:40 Andrew: Right. It When you vote no on cloture, what that means is you want to keep the legislation open uh so that we can continue to debate it and that's what uh Schumer's vote did.

0:27:56 Thomas: Guess I I don't understand because I thought you said it needed 60 votes anyway.

0:27:59 Andrew: It does, right, so it, so by by by doing that, right, it certainly could could have been 50-50, that's not three-fifths, that fails. Right. I

0:28:08 Thomas: Right. But it's just protecting in case the Republicans do shenanigans or something or.

0:28:12 Andrew: Am not an expert on Senate parliamentary procedure, uh, but that is what I would infer, right. That, that, in other words, right, like we know Chuck Schumer wants this bill passed, we Did we know he supports it? Um, we know that there's not a problem for support for the bill from Cinema and Mansion, and now the question is, uh, is Joe Mansion willing to carve out the narrowest possible exception to the filibuster, right, to say, Okay, when it comes to this particular bill, uh, we will appeal to the decision of the chair, right, like maybe this is part of how you set that up. As Chuck Schumer says, oh, I, I made a mistake, I voted on the wrong side, and by the way, I want to, um, ask the question, if I switch, right, this isn't one of those Those three 50 things, is it? And then the chair will say, yes, this is a three 50 thing. And then you can say, OK, motion to appeal to the decision of the chair, say, oh, as it turns out, after all, this isn't one of those three 50.

0:28:19 Thomas: OK. Yeah.

0:29:11 Andrew: See, that's a bit of a hypothetical, but I don't think that Joe Biden would publicly announce this is what we're going to do without having about and talked about and got some reassurances from Joe Manchin that, this is something not just that he would vote for in the abstract, really, but move, and allow us to pass all

0:29:22 Thomas: Some sort of plan. Yeah.

0:29:35 Thomas: Don't you get my hopes up. Don't your dad get my hope. Andrew, this would be huge. I mean, this would be. This bill is the first thing I've heard that sounds like it's truly meeting the moment. I'm not saying that this, that they, that the Democrats haven't done other great things, they have, they've done other good things. This feels like we're finally doing something, to maybe, if we pass this, to combat the descent into fascism, doesn't it?

0:29:38 Andrew: Right, well this it it absolutely feels that way, and, uh, again, you want to label me as cautiously optimistic and ready to be smacked down in two weeks, um, think that's, I think that's the position I want to take.

0:30:12 Thomas: It only take two weeks? Is that the schedule they're setting for themselves? Themselves.

0:30:15 Andrew: It again, uh, this is within the context of, you the self-imposed deadline for Build Back Better was end of the year. It would surprise me if the Democrats went the entirety of this session with nothing legislatively to show for anything. Right.

0:30:33 Thomas: Not impossible.

0:30:33 Andrew: I guess you hear that in my voice. There's lots of ways in which this could go badly. Um, but again, the bottom line is this, right? If you are a left-wing critic of Joe Biden, this is the thing that you said he hasn't been doing, it

0:30:48 Thomas: And it's maybe the most, one of the most important. I mean, arguably could be the most port.

0:30:50 Andrew: Absolutely is is is crucial, um, And so, you know, maybe there is the combination of, you he's listening to us and also recognizes, like, hey, um, I've got to go all in here, right? Like I, I have to make a risky play

0:30:53 Thomas: Yeah.

0:31:04 Thomas: Don't, I think it might merely just be based on the mansion math, right? I mean, it sounds like we're, again, we're hostages to these a-holes, Mansion, Cinema. And if this is something that perhaps Biden has gotten some assurances from Mansion that could happen, maybe that's why the, the change of plan, you

0:31:06 Andrew: Yeah yeah it that seems very, very plausible to me, again, seems implausible that you would spring this on Joe Manchin. Right. Like, oh, oh. Hey, he's a

0:31:33 Thomas: This point, I hope we will have learned to not spring anything on Joe, Manchin, he's not afraid to shoot it down easily, yeah.

0:31:38 Andrew: Yeah. Yeah. He's an old he's an Old White dude with a gun. Like, let's let's not scare him.

0:31:44 Thomas: Gosh, so, but just, I just want to clarify, because it's a complex issue, it but just to make sure we all are on the same page here, there is no one weird trick around the filibuster. And by that, I mean, like, you can't pass this any other way but doing some sort of filibuster carve out, right? Okay. No budget wreck.

0:31:45 Andrew: Hmm. Correct. There is no it is both the strength and the weakness. Right. This is not a budget reconciliation thing, which would then expire within a a maximum of 10 years. Right. This is this is a change to the law for all time. Right? Does it fix everything? No. Like, for example, we have the John Lewis Voting Rights Act, which the Democratic Senate should also take up, which would restore Section 5 of the Voting Rights Act of 1965 and require preclearance before Southern states start imposing restrictions on voting again, um, there are lots more things to do, uh, but we went through and I didn't talk about the political campaign stuff, um, it's a more complex subject anyway, and I will tell you, not as important, even if all that stuff, uh, not enough, it's interesting the way the bill approaches it, it's good stuff, but even without any of that, I mean, you heard what I read to you, uh, this is a great bill and

0:32:06 Thomas: Yeah. And so, yeah, it really is. Yeah.

0:32:54 Andrew: If we get it passed, uh, it will be a signature legislative accomplishment it'd

0:32:58 Thomas: If it had nothing other than just the gerrymandering stuff, it would be a massive deal.

0:33:02 Andrew: Be great universal vote by if it was just a universal vote by mail bill it would be great yeah, it, it's, it's fantastic, so, so there you go, and let's wait and again, uh, gonna hear sneak peek for Tuesday's show, right, like, we're not not afraid to call out Joe Biden when he's done something terrible, and, um, he's done, you know, a terrible thing with the SCOTUS commission, we're going to tear that apart on next Tuesday's show, uh, if this turns out to just sort of founder and go nowhere, um, you know, we'll, we will be the first on the front lines to say this is kind of dumb

0:33:04 Thomas: Yeah. Right? Yeah. Yeah.

0:33:30 Thomas: Will be pointless. It doesn't matter. Matter. What's the point in criticizing? It doesn't matter. If we don't do this, we don'T get to have democracy for much longer. So, I don't. Okay. Oh, I'll yell at Biden. That'll fix it. I don't know. Yeah. I'm just sitting here waiting to see if the people in charge are going to let us have more democracy or not. I don't know what can do about it. They have to pass this, we have time for some news on the one six commission. This is, you've been tweeting a lot about this. I cannot wait to

0:33:31 Andrew: Yeah right yeah Yeah, right. Yeah, think I that's right.

0:33:53 Clip: WOAH-

0:34:04 Andrew: Yeah.

0:34:04 Thomas: Hear the full breakdown, Andrew. What's going on?

0:34:05 Andrew: Uh, John Eastman uh has sued the one six commission, but really uh what he is trying to do is block uh a one six committee subpoena to Verizon for uh his cell phone records. Um,

0:34:21 Thomas: Question. Can you sue a commission? I didn't even think about that. Okay. Just wondering. So Didn't know they could be the named party in a lawsuit.

0:34:31 Andrew: We, It names Benny Thompson as chairman of the committee. It names John Wood and his official capacity is investigative counsel for the minority members of the House Select Committee to investigate the January 6th attack. So, yeah, it seeks declaratory and injunctive relief. The declaratory relief is that, you know, the one six commission is invalid. The injunctive relief is a temporary restraining order and preliminary injunction, followed by a permanent injunction in joining Verizon from complying with the subpoena to turn over John Eastman's cell phone records, which include his texts. I'm going to first, I'm gonna cut to the punchline, which is of the stupidity involved by John Eastman and his lawyers, they may not have gotten any relief here. It is entirely possible that Verizon has already turned over those records.

0:35:21 Andrew: And that would just be delightful, you hoisted by their own petard. Let's break down this complaint very, very quickly. Um, and again, we're going to read it the Opening Arguments way. So first, right, we look at the caption, and I just have to say, like, this is when you first file a complaint, uh, you have a longer caption, right, in which you list uh the addresses of the people that you're suing, right? And so you have to list that for the plaintiff as well, and it lists John Eastman care of his lawyers. Right. Like, you know, like he's in the goddamn witness protection program or something.

Can do that, if you have somebody who needs to not disclose where they live, because again, they're in the witness protection protection program. There was no explanation. When it comes to the party section, you would say then in the party session, right, plaintiff John Eastman is identified as residing at, you know, can be contacted uh via his attorneys because he reasonably fears for his life, blah blah blah, there's none of that. It just says plaintiff Jon C. Eastman, Dr. Eastman, as a law professor and attorney. Why don't you tell us where he lives then, lawyers? Uh, I don't know, so

0:35:55 Thomas: Weird.

0:36:20 Thomas: Yeah.

0:36:29 Thomas: Okay. That's

0:36:29 Andrew: So that's it, yeah, that's weird. Weird, right? Then we go, so that's the caption. Then we scroll back all the way down to the bottom, and this is submitted by Charles Burnham of Burnham and Gorakov PLLC in Washington, D.C. So, went to Burnham Gorakov dot com and found out that Burnham and Gorakov is a white collar criminal defense boutique firm. Apparently, they're good at it, especially Gorakov has got a lot of positive testimonials. If when you go to their website, uh, and you search for Eastman, it pulls up zero hits despite

0:36:30 Thomas: Weird. I wow

0:37:04 Andrew: The fact that they have an active blog, and that as a boutique firm you, right, would think branching out into a thing you don't do is something you would market, right? You'd be like, hey, we also do a constitutional law and, you know, responses to congressional subpoena, right? That's how, that's you bring in new clients. Um, unless, of course, you're embarrassed about your client and the arguments that you're making in court, at which point you assiduously scrub any mention of his name from your website. Oh, also, did I mention they blog like every day? Yeah. Anyway, so they hide the fact that they're representing John Eastman. This guy, Charles Burnham, does not do civil litigation. And it kind of shows because they filed this complaint seeking emergency injunctive relief on December 14th. On December 15th, on the docket, the court filed two notices of error, which says the PDF file you docketed contained errors. One, it's missing summonses for the government. When naming a government agent or agency as a defendant, you must supply a summons for each defendant and two additional summons is for the U.S. attorney and the U.S. Attorney General. Please.

0:37:34 Thomas: So Is this Clippy telling them what this is?

0:38:12 Andrew: Yeah, it kind of is right. Please submit using the event request for summons to issue. Number two, case assignment and nature of suit was not selected on the civil cover sheet. Section four, please refile using the event civil cover sheet. And a civil cover cheat is literally like it's a a it's checkbox, right? It's, you know, it's it's page front and back. You got to check like is the amount over $75,000? What's the nature of the suit? Right? It the kind of boring stuff you do.

If you're a civil litigator, you don't have to file them. It's a civil cover sheet, you don't have to file them in criminal cases. So apparently they're just not used to filing these sorts of things. And then the third error, right, docketed separately, is that your for injunctive relief was filed as an attachment and not as a separate entry. Their entry, that that's again kind of a basic error, because you can, you easily imagine a court denying an emergency request for an injunction but saying, I'm still going to listen to your complaint, right, but you, the TRO request is denied, right?

And so, in order to do that, if, if it's Exhibit A, and this is what it was, it was Exhibit number four to the complaint, you attach it to the complaint, then the docket will say denied or motion granted with respect to docket number one, which would then be super confusing, because it would look like they were just denying your right to file the complaint or granting your right to file a complaint, which makes no sense. Now, want to be clear about this, I make errors, lawyers make errors all the time in electronic filing. Right.

0:39:45 Andrew: You right? Type in the wrong number. You, you know, fail to attach the data. This is not an error of with electronic filing. This is right

0:39:57 Thomas: Not you sent the email, here's here's the lawsuit, and then the next email, and here's with it actually attached. It's not that

0:40:04 Andrew: Right. I do that all the time. I have I have a case right now that it took like, yeah, it

0:40:07 Thomas: Everyone has done that, it's it's impossible to not have done that if you worked at any kind of job like that.

0:40:11 Andrew: Yeah, sometimes, you know, I have have a case that is consolidated, so there's two separate numbers, and I filed under the latest number and then the judge, like three months later, called me up and was like, hey, can you file under the original? Because I consolidated it into the first filed number, and I didn't see this pleading that you filed. And I said, yes, your honor, I can do that. Right, so, so look, I'm, this is not not a glass houses thing. This is the kind of mistake about procedurally what you do when you file civil complaints that you're likely to make if this is not what you'd do. And this is not what he does. Right.

0:40:20 Thomas: Oh okay so I was gonna say, this is is not cracking lawyers, right?

0:40:54 Andrew: No, I mean, the arguments are bad, but but, and I want to get into the quote merits of the argument super briefly. Um, but no, this is, you know, this is just where you are, uh, when you were insurrectionist John C. Eastman, uh, that I don't know if this guy Charles Burnham owed him a favor or whatever. But like, um, this is not, I would not represent a white collar criminal defendant. Charles Burnham should not be representing somebody who is the subject of a congressional subpoena, right? He should get a professional lawyer who does that sort of thing. And his failure to do so, by the way, that was all docketed yesterday, two days ago by the time you hear this, Wednesday, December 15th, and it said, compliance deadline is by close of business today. This case will not proceed any further until all errors are satisfied. And that's in bold text. Right. So, and got emailed to to Charles Charles Burnham of, the date of this recording, right, when we started, 7 p.m. East Coast time on the next day, December 16th, there was no correction made to the record.

0:40:57 Thomas: Yeah yeah

0:42:02 Andrew: There was no effort to come into compliance. And I think I know why, because in this complaint, it says that Verizon told them originally, the the Verizon subpoena was due at the beginning of December, December 2nd. And then Verizon said, OK, hey, we're going to hold off on complying with the subpoena until December 15th, and if you can give us a court order that says are not to comply with the subpoena, then we'll, you know, follow that court order, otherwise on December 15th we're going to turn over these records. Um, and that, by the way, as of this recording was yesterday, so I think the slapdash nature of, you hiring the white collar crime guy to throw together your lawsuit that you filed on December 14th, which, you know, again, maybe have a little more urgency. Like, like, if I know the hard deadline for Verizon turning over my documents is the 15th of December, like, maybe file on

0:42:59 Thomas: They're really uh playing it close to the line there, that yeah late, even for me, like, I would, I think I would have finished it by the 13th.

0:43:06 Andrew: The 10th. That's right. Yeah. Yeah. So they filed on the 14th. They had errors. They went uncorrected. The court told them to correct it. They didn't do it in time. It is entirely possible the one six committee has the Eastman text messages. Now, what were the arguments? The primary argument raised in the stupid complaint is the January 6th committee is not a valid congressional committee. It's it's just out there to discover criminal information and criminal information is not the kind of thing that Congress is allowed, empowered to establish a subcommittee to discover. Cover. This is the argument Trump has been making and losing at every level of the federal court for years. It's not, it would not avail John Eastman here. There is no doubt that the January 6th committee is a valid committee with legitimate legislative powers.

0:44:02 Andrew: That is to try and make sure that January 6th never happens again. They do not have to show, we know this from from the Mazars subpoenas, they do not have to show existing pending legislation. They just have to show this is a thing that Congress is empowered to look at. And by the way, they are allowed to refer matters out to the Department of Justice where they discover criminal activity, right?

And so, you know, there's an ostensible smoking gun where they quote Adam Kinzinger, to ostensibly show that, uh, uh, the committee has an impact improper purpose, saying, representative Kinzinger stated in his opening remarks, our mission is very simple, to ensure the trust and ensure accountability. Congress was not prepared on January 6th. We weren't prepared because we never imagined this could happen, an attack by our own people, fostered and encouraged by those granted power through the very system they sought to overturn. Um, I don't know why he thinks that's a smoking gun. That is a valid legislative purpose. Uh, and it is clear uh that this is going nowhere. I suspect this uh lawsuit will be withdrawn in the next couple of days uh as moot, because I imagine that the January 6th committee probably has those documents.

In the event that it isn't, uh, the lawsuit is a joke. Um, there is, if you uh if you get my show notes, uh, if you uh are a a patron at that tier, you can look at the case that I break down that's hilarious that they cite, it's called Yell In Vus, and I guess now, you know, any of our listeners could go

0:45:33 Andrew: Look at it. This is bad law and bad lawyering, and it couldn't happen to a better person. Um.

0:45:38 Thomas: Right, well, just squeeze in one more little update here on Activision, what what happened there?

0:45:43 Andrew: Yep. Um, December the 13th. There is no written order yet, but at oral arguments on DFEH's motion to intervene in the federal case, that judge denied the motion to intervene. We will do a deeper breakdown on why he's just upset. And I'm not surprised at all by this. Right. Like this is what we discussed that like when you have two government agencies bickering with each other, a federal judge is very likely to just sort of throw up his hands and be like, you guys figure this the hell out. Because, you it's not up to me to decide whether I'm going to side with the Equal Employment Opportunity Commission or, you know, the Department of Fair Employment and Housing. I just I don't know. And and that appears to be what's going on. It does not mean that the court will enter the federal consent decree. They still have to hear, for example, from the union objections. Right. And there's still supplemental briefing with respect to that. And it does not mean, even if that consent decree were entered, that DEFA is unable to bring and maintain its lawsuit.

0:45:44 Thomas: Huh. Yeah.

0:46:45 Andrew: And in fact, on December 9th, DFEH represented in its state lawsuit that it would proceed even if it were not allowed to intervene in the federal case and even if the EEOC consent decree was entered. So we're continuing to follow. You will see that in the news. Probably wanted to see DFEH permitted to intervene, but it's not surprising that they weren't. It does not necessarily mean that settlement will be entered. We will continue to watch.

0:47:19 Andrew: Don't panic yet. We'll tell you when is a perfectly good time to panic.

0:47:18 Thomas: So. Don't panic yet, it Was A perfect Time

0:47:22 Andrew: Thank

0:47:22 Thomas: To panic. Okay, all right, well, squeezed a lot in here, uh, nice work, and

0:47:26 Andrew: You

0:47:27 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:47:33 Thomas: Now it's time for T3BE. Thomas takes the bar exam. Each and every week, I attempt to answer a question using nothing but the knowledge I've learned listening this podcast over the years. Uh, let's hear it, here we go. Coming off of one where I really just kind of tripped over the finish line, so I need to uh build myself back up here.

0:47:52 Andrew: Thomas, a man sued his boss in state court alleging claims For non-payment Of wages Under Both state and federal law. The man's friend, who was an attorney, advised the man to remove the case to federal court on the basis of federal question jurisdiction, because he thought the federal court would be more sympathetic to the man's claim. The man thereafter promptly removed the case to federal court. The man's boss made a timely motion to remand the case back to state court. How Will The federal court proceed? A It will hear the federal claims but not the state claims. B, it will here the entire case because it was timely removed and involves a federal question. C, it will remand a case unless unless the amount in controversy exceeds $75,000. Or D, it will remand the case to state court.

0:47:56 Thomas: Love It Love It, what The Hmm What The, oh my God, I don't know, okay. Boy, this is interesting. I don't know what to think about this. So let's make sure we got the facts right. We got a man suing his boss in state court, alleging claims for nonpayment of wages. And it says under both state and federal law. Interesting. Then, okay, friendly attorney here. I'm going to just, hopefully, I'll just assume this attorney knows what he's doing, so maybe that'll be how I answer. No. We don't know whether or not this was a good idea, I guess, but removes the case to federal court on the basis of federal question jurisdiction. So, federal question jurisdiction seems a little different than maybe what we've talked about in the past, and I'm thinking about that $75,000, I actually, as of now, I think already that's an attractive distractor.

0:49:32 Thomas: I don't know if that matters, but I could be wrong because, because we don't have like the divert, this isn't diversity jurisdiction because I think that's, I think that diversity jurisdiction, which is you need complete diversity and an amount in controversy above $75K. I think. And so I think C, I'm already ruling out C, I'm pretty sure. So, it's federal question jurisdiction because he thought the federal court would be more sympathetic. The man thereafter promptly removed the case to federal court. Okay. Removed it to federal Court. The Man's Boss made a timely motion to remand the case to state court. How will the federal court proceed? So, this is probably going to be impossible. There's probably some rules here that I've never heard of about what it shall do here.

0:50:20 Thomas: Let's see if we can puzzle it out and just get lucky. So, A, it will hear the federal claims, but not the state claims. Okay. That seems plausible to me. Like, I think that's like, okay, there is federal law in question. The man has timely removed it to federal court, essentially. So, they will hearthe federal claims. I think A is is certainly plausible. B, it will hear the entire case because it was timely removed and involves a federal case. Question. Okay. All right. I think I see the issue here. So, like a question of what does the federal court want to do when you've got both state and federal questions? You know, we can assume that the man, because I know that you are the, say, you're the master of your own complaint or something, or you get to decide.

0:51:08 Thomas: So I think it's okay that the man has the decision to file it in either court. And I think because he removed it to federal court, I think that's okay. I'm pretty sure you can do that, believe. And the attorney in the question agrees with me that you can remove to federal So I think that seems okay. But the question is, when you allege claims for both state and federal law and you're in federal court, what does the federal court do? Do they answer both questions? I thinkthat's the difference between A and B. A would say, all right, we'll take your case, but we're only looking at the federal law. B would say we'll hear the entire case because it was timely removed. I might be leaning more toward B and I'll say why in a minute, it.

0:51:54 Thomas: I think, let's see, see, uh, I, I think that a mountain controversy is a red herring, but God, I could be wrong on that. It will remand it and let, no, cause I think it's a federal question. I think we're going, I am sticking to my guns. I don't think 75,000 matters. D it will reman the case to state court. Now that D would be under the idea that there is, you can't, I don'T know know what, like the federal court won't look at the federal question for some reason. Being the answer and Andrew will tell me that it's like, well, you see courts are overworked. And so if there's a possibility of the state court to answer the, do it, you know, then the state cort does. I don't know though. I think you're allowed to do this.

0:52:40 Thomas: I'm leaning leaning away from D. I'm going to do the bold thing that Andrew likes me to do. I don't know why. It doesn't seem like it helps me or anything or is good, but I'm between A and B. I think D is certainly a possibility. C is right out. No, but D, I don't like D. Well, I guess the other logic of D would be that the man's boss makes the motion to remand a state court, and for some reason the person you're suing, like, you know, gets the final say, but that's not right. I think we know it's not that. It's the opposite of that, I believe. I'm between A and B. So, will the federal court hear the federal claims, but not the state claims? Or will it hear the entire case because it was timely removed and involves a federal question? I think I'm going to answer B. We're there anyway.

0:53:26 Thomas: We're already here, you Know, and the federal courts, as I think I've experienced in other questions, do have the ability to rule on state stuff, you know, like different states laws. I think we've talked about that. I think they have to when it's a diversity jurisdiction thing, because we're only talking about state law in that case, right? So they have theability. I think the principle would be like, if you're here anyway, you're not going to have to do a separate suit and all that for state. So I'm going to go with B. Not much confidence in this one, but we'll see. We'll see B final answer.

0:53:58 Andrew: All right. And if you'd like to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T three B E include your guests, your reasons. Therefore we will pick a winner and shower that winner with never ending fame and fortune, fame and fortune. Not guaranteed.

0:54:11 Clip: And thank you, Let's go!

0:54:13 Thomas: Now it's time to thank our new patrons on patreon.com/law. Enjoying, by the way, that Law'd Awful Movies coming at you very soon, as soon as I can, boy, I have a lot of editing to do, as soon as I could finish it, but I'm on it, don't worry, I'm working on it, uh, and of course add free episodes each and every episode, all the goodies, why don't you thank our New Patrons, uh, start us off, Andrew.

0:54:34 Andrew: Yeah. Thank you to SadPanda, Brian H, Damian Doherty, Teddy Siegel, Willard Wonka and the Policy Factory, love that, and Mike Bloom. Thomas, take it away.

0:54:47 Thomas: Thank you to Bren Sheenan, Michael Grosnicklaus, Flashy Amoeba, Matt Leonberger, Elijah Luna, and Rizvi. Thank you so much, new patrons. We hope you enjoy the perks, and we really appreciate your support. It's how we do the show, so thank you so much. And that's our show, Andrew. Wow, you've got me cautiously optimistic on this Voting Rights Act. I mean, that would be so huge. You know, I'll be honest, I've been a little down on what I think the future of country is, but that would really do a lot. So I hope the optimistic Optimist Prime over here is correct on this one. Right, we'll see you next time.

0:55:26 Andrew: Me too

0:55:29 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.

0:56:03 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.