OA573: Harvard Law Review Publishes Dubious Note on Election Law

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 573. I'm Thomas, not a lawyer, and that's Andrew Torrez, lawyer extraordinaire. How you doing, Andrew?

0:01:27 Andrew: I'm all right, Thomas. How are you?

0:01:29 Thomas: Doing well. Well, let's see, where are we in the timeline? We'll say in the future, I don't know. I don't know. Is it World War III or are things slightly better? I'm not sure.

0:01:32 Andrew: Yeah, right. Well, it will definitely be one of those things and my mood will reflect either better or worse.

0:01:43 Thomas: Yeah. Well, but I'm excited for today's show. We've got some really good stuff to talk about. Madison Cawthorn update, Kraken sanctions. I think a bit of good news there. And segment on Harvard Law Review on elections. But in We'll the meantime, got to remind you that we have a Q&A coming up. And that is March 1st. That's Tuesday. So as you're hearing this, probably like soon.

0:01:50 Andrew: Yeah, tonight.

0:02:09 Thomas: So make sure to hop on over to the YouTube. Well, if you're patron, you've got all the time in the world. You can laze on over there. Just slowly meander over to YouTube. If you're Normie, you may have to hurry a little bit. Anyway, that's Tuesday, March 1, 4 p.m. Pacific, 7 p.m. Eastern. That's on YouTube. Everybody's invited. However, only our fine, fine patrons get to ask the questions and vote on each other's questions. And make sure to do that vote so I know which ones you want to hear. It really does help me, uh, it's a democracy, somewhat. And that'll be a lot of fun. And also a Law'd Awful Movies, it may already be out, uh, that was a lot of fun. Once again, that was Presumed Innocent, a Harrison Ford movie. Who doesn't love Harrison Ford?

0:02:15 Andrew: Oh, that's right. Right.

0:02:57 Thomas: Especially 90s Harrison Ford.

0:02:57 Andrew: And and Raul. Julia. We oh he's so good.

0:02:59 Thomas: Oh, gosh. So good. So make sure to catch that. Watch the movie. Don't watch the movie either way, but listen to a lot off of movies. It's a ton of fun, patreon.com/law. All right, on to the show.

0:03:02 Andrew: Uh uh

0:03:13 Clip: Down the law, down the law.

0:03:17 Thomas: So what's our Madison Cawthorn update. Did we win? Did we get him?

0:03:21 Andrew: So here's what's going on. I, right, had a whole bunch of updates prepped on this that may or may not wind up being significant in light of, uh, the letter that was sent literally like an hour before we started recording the show.

0:03:35 Thomas: No.

0:03:35 Andrew: So what you need to know, since we discussed this on Episode 568, I have maintained this is a thing that is being taken very, very seriously. Right. So the complaining witnesses moved to intervene in the case. Cawthorn opposed that. Cawthorn moved to consolidate an expedite. The board opposed that. The new North Carolina Republican Party filed an amicus brief. It's terrible, by the way. I'm not going to go through it. But all of this is, you know, an awful lot of activity if you're of the belief that the board was just, you know, going to kind of going to come to some, well, you know, we can't really say one way or the other. You know, if the fix were in, this is a hell of a lot of effort. But the, the preliminary injunction hearing has already taken place.

0:04:21 Andrew: It took place yesterday, as of the time that you're hearing this, so Monday, February 28. And you might recall that all of the proceedings were stayed pending the resolution of legal challenges to gerrymandered districts in North Carolina. Well, those challenges have now been resolved by court of competent jurisdiction. And means that stay is lifted and that has direct implications for what's happening here. So let me tell you a little bit about the court order. It approved the remedial state Senate and House plans, the state House. And again, this is at kind of a top level. The state Senate plan seems bad, right?

0:05:06 Andrew: Right. Like the revised plan that passed the Congress still looks like it pretty strongly favors Republicans. The state house plan looks a little better in five or six areas. It is considerably more favorable to the Democratic Party than than to Republicans. So Buncombe County was one Republican, two Democrats. It's now three Democratic leaning districts. Bunch of other districts gained Democratic seats or competitive districts. And so looks like that was improvement in the right direction. But the significant news was that the court rejected the remedial congressional districts plan that was drawn up by the heavily Republican state legislature. And so that means that they will be using the plan developed by the independent special masters.

0:05:56 Andrew: And that plan will take North Carolina's 14 congressional districts. There will be seven Republican seats, six Democratic seats, and one toss up seat. And by the way, that probably should accord with our intuitions. North right Carolina seems like a, slightly pink tinged uh, competitive state. And so, uh, that seems to pass the straight face test. Now, there are still questions about it, but here's what that means in terms of the ongoing litigation. Madison Cawthorn's district, the 13th, in which he has filed, has been redrawn.

0:06:36 Thomas: Okay.

0:06:36 Andrew: Yeah, it's a different district.

0:06:37 Thomas: I've been waiting to ask you.

0:06:39 Andrew: And so the filing deadline, right, this is the end of this week, okay? The filing deadline is March the 4th. So as you're hearing this, Madison Coffin will have a couple more days. He may decide in the interim between when we, we record this and when this goes live, uh, whether he wants to run in the 13th district, uh, or not, whether he want to run somewhere else. I will tell you this, North Carolina has a very, very, very, very weird rule, and that weird, weird rule is this. Although the congressional candidate need not reside in the district in which he is running, in Madison Cawthorn's case, the voters challenging that candidate's eligibility must reside in that district, okay?

0:07:25 Thomas: What?

0:07:25 Andrew: So yeah, um, so what that means is the existing voters are no longer eligible challengers under North Carolina general statute 163-127.1. "They are not any qualified voter registered in the same district as the office for which the candidate has filed or petitioned," end of quote. Because, yeah,

0:07:45 Thomas: Can you do a clean swap? Can You do a, you know, like Indiana the Jones, you know, just swap in different voters, a bag of them.

0:07:52 Andrew: We will ascertain this on yesterday's hearing. I suspect you will be able to do that, right? Right. So, so the state board, as of today, as of us recording this show Thursday, February 24th, has announced that on the slate of existing voters, they will not refer this matter on to be resolved because they are no longer eligible challengers. I think that it is incredibly likely that the court will give the board the opportunity to to allow it, or the intervenors, to amend the complaint to add in new complainants from within the district. Remember, there are only five of these to begin with, right? Like, it's not like you need to amass tens of thousands of signatures. You just have to find somebody who lives in the district and there will be somebody who thinks that

0:08:41 Thomas: Yeah. And who doesn't want Madison Cawthorn to be on the ballot? That should be pretty easy.

0:08:48 Andrew: Madison Cawthorn is an insurrectionist because he is. That shouldn't be hard.

0:08:52 Thomas: It could be you, listener. You you know, check in.

0:08:54 Andrew: Yeah, absolutely. Check out where that new district is. And if you're if you're within those lines, contact the North Carolina Board of, Board of Elections. Get your name out there. So I said, deadline is March 4th, you know, if this were dismissed, it would be dismissed without prejudice and you could just refile. So long as it is a timely filing, and we will know which district Cawthorn is in by March 4th, would, would be valid to, to refile that. If Cawthorn does nothing, he will presumptively stay a challenger in the 13th district, right, because that's what he filed for before the redistricting. And North Carolina law says if we redistrict after you filed, you are presumed to stay in the district for which you initially filed, even if the geographic boundaries change, right? So if he does nothing, thing-

0:08:59 Thomas: Ooh, be

0:09:46 Andrew: He'll stay there. Yep. So,

0:09:46 Thomas: Was that rule about, you don't have to live in the district? Was that just when this kind of thing happens, or can you truly just run for any district in North Carolina if you live in a state?

0:09:55 Andrew: I have only read it in the context of redistricting, so I don't- I don't fully know the answer to that question, uh, but it's definitely the case in redistricting, so it- would be weird- if it were- the rule overall, but, but, states, you- we're going to get to this in the Harvard Law segment, like, states have wide latitude to ascertain, uh, and impose qualifications on voters.

0:10:00 Thomas: Okay. Which is fair enough.

0:10:18 Andrew: So, it's- it's going forward, it's- I think it's good news in that, uh, North Carolina is not using a partisan, uh, created gerrymandered map. They are using, uh, the independent special master's plan for congressional districts, and, um, that will, that will provide, uh, pickup opportunities for Democrats in the state of North Carolina in 2022.

0:10:18 Thomas: All right. So that's our update. It's not really, it sounds like it's not a really good or bad news. It was kind Kind of. Yeah. Hmm.

0:10:43 Thomas: I want to be a special master. How does that person introduce themselves? Hi, I'm a special man. What do you do for a living? I'm not special Master. They sound like a nine-year-old making up a job.

0:10:50 Andrew: So, Yeah, you- could- you-

0:10:55 Clip: Arrest a husband and wife for the same crime. Yeah, I don't think that that's true, Dad. Not that we're still...

0:11:04 Thomas: Kraken update. Oh, it's been too long since we've had a good Kraken update. How they doing those Kraken?

0:11:10 Andrew: As I have described on social media, every court, uh, in which Sydney Powell or Howard Kleinhandler has appeared, uh, has described their litigation techniques in words like this. So, for example, cutting to the chase, this is, uh, page three. The end of this order filed by the Sixth Circuit says the attorney's assertion, and that means Powell and Kleinhandler, that it was prudent to delay seeking a stay until they filed their principal belief is inexplicable. So yeah, this is yet another, other court that's like, you, you people are bad, you don't know how to practice law, you should feel bad. And I'm gonna break down because it is delightful. So this is the sanctioned order that was awarded by Judge Parker that we covered in great, uh, and hilarious depth on this show involving the Kraken lawyers in the state of Michigan, and Judge Parker's had absolutely none, none of their nonsense.

0:12:04 Thomas: Mm-hmm. To be fair. We've covered a lot of you know, Sidney Powell is like that horrible creature in the first Star Wars, where she's like, I've been sanctioned in 12 systems. It's hard to keep track of which sanctions, which state, which thing.

0:12:05 Andrew: Yeah, and she had, you know, 11 parsecs that she had to pay here in this one. So Greg Rule, Brandon Johnson, Howard Kleinhandler, Sidney Powell, Julia Haller, and Scott Hagerstrom appealed from the district court's imposition of monetary and non-monetary sanctions against them for engaging in what the court below described as abusive litigation practices. And on February 14th, we talked about it. The attorneys moved to stay the non-monetary portion of the district court's sanctions award. And you might recall the non-monetary component was requiring them to complete certain training courses.

0:12:57 Andrew: Right. And And sending a copy of the order to their state bars to begin the disciplinary process.

0:12:57 Thomas: I think they have to take Thomas Tries to Be Ethical exam. I'm pretty sure that's part of their homework.

0:13:10 Andrew: Yeah, They had to take the grand total of 12 hours of continuing legal education offered by a nonpartisan organization. So not, you know, like Sidney Powell couldn't be like, "Oh, Defending the Republic runs a course in legal ethics." No, uh, on the subject of pleading standards and election law, which is just that is so insulting, right? Like, did did you ever, uh, plead down a traffic ticket as a young adult and then have the court say, "Yeah, we're gonna we're going to impose the traffic class."

0:13:38 Thomas: Yeah. Traffic school. Yeah.

0:13:42 Andrew: Yeah, and you're like, "Man, I'm 26."

0:13:44 Thomas: The wheel turns The car, the button in the center goes beep beep, and you're like, "Oh my God, this has nothing to do with the fact that I rolled a stop sign because nobody was there and I was in a hurry."

0:13:44 Andrew: Yeah. Yep. So It sent Cindy Powell back to a traffic school, which, uh, you know, good God bless, Judge Parker She Does

0:14:01 Thomas: But she actually needs it. She'd be like, "Oh, the horn does that? What?"

0:14:06 Andrew: And and of course, significantly, uh, to, uh, send a copy of the order to the appropriate state disciplinary authorities. February 14th pleading was itself filed in error; it failed to comply with the standards required by the Sixth Circuit in terms of how it cited the record below. It was just a giant joke of a proceeding. The Sixth Circuit was like, "All right, guys, we're gonna, we're going to let you refile this.

You have four days." If you can fix your, you know, pleading that's written on a napkin, we will evaluate it. And so they did. And now the Sixth Circuit I may have spoiled the conclusion that they come to has allowed them to, you know, clean up their napkin and is ruling on the merits of whether that court order should be stayed, pending the adjudication on the merit of their appeal of the merits of Judge Parker's order, right? And, and remember, um, the court already and this is crucial to the ruling Judge Parker voluntarily, sua sponte, that is on its own motion, stayed the monetary portion of the sanctions award? Recognized, "Hey, look, you're going to appeal this, um, we're not going to require you to pay the money yet," um,

0:15:21 Andrew: Because uh, you know, the appellate court might lower that and we don't want to have to go claw back the money that "It's fine, you guys, you probably are good for it, we're going to withhold, uh, we're gonna stay the effect of that decision on the monetary award, uh, pending appellate review, uh, but we're not staying the imposition of the non-monetary sanctions, right? That's not going to change on appeal." And, and we're going forward with that. And so they did appeal, right? That the Kraken lawyers did appeal up to the Sixth Circuit. And, uh, and the very first question that the, uh, Sixth Circuit asked, uh, rhetorically, was, um, "Award was issued in August of 2021, it's February of 2022 why didn't you ask the district court to stay the non-monetary effect, right? Like, if you were going to appeal, if you think you've got rights, um, why are you asking us, you know, seven months later? Like, come on."

0:15:20 Thomas: Okay, I see, yeah

0:16:18 Andrew: Um, and the Kraken lawyer's answer to that was, "Well, you know, we weren't going to get a fair shake below." And, and, and the Sixth Circuit was like, "Get out of here with that." So so here's here's the they

0:16:29 Thomas: What's the real answer? Do they just not know how anything works, or what

0:16:34 Andrew: Are they're idiots who are bad at their job in addition to being Insurrectionists. Yes. So the Sixth Circuit says a motion to stay should first be sought in the district court unless the movant can, quote, "show that moving first in the district court would be impracticable." The attorneys acknowledged that they did not move the district court for a stay, asserting that it was not possible to fully brief a motion to stay in both the district court and this court before the February 25th deadline because the district court did not enter its final judgment until December 2nd, that the district court's to a stay of the monetary portion of the judgment when it entered the judgment established that it would have been futile to seek a stayof the non-monetary portion, and it was prudent to seek a stay only after fully fleshing out their arguments in their principal brief. And then the court, rather dryly, says, "We rather

0:16:35 Thomas: Okay, that's what I thought, yeah.

0:17:20 Thomas: Disagree."

0:17:20 Andrew: Like the coin disagree. Then citing from authority, it says, contrary to the attorney's assertions, there was ample time for them to seek a stay in the district court before the judgment issued under that court's standard motions practice. The district court was best positioned to consider whether a stay of the non-monetary sanctions was appropriate in the first place, given its familiarity with the record. And your unsupported speculation that Judge Parker hates you, the attorney's unsupportive speculation that the district court would not exercise its authority in good faith is unfounded, particularly considering the district court's painstaking analysis in support of its sanctions order, her, remember, that was 127 pages long and its sua sponte recognition that a stay of the monetary portion of the judgment was appropriate, right?

So, yeah, that's the Sixth Circuit going, "Yeah, you may think this judge hates you, but if the judge hated you, like, she would not have written a carefully well-reasoned opinion and then said you don't have to pay the money part, right? She would have said, 'Yeah, you owe a million billion dollars and I hate you, go to hell,' right? And that didn't happen." So, So and that really is the standard. There's a site to a

0:17:22 Thomas: Yeah. Yeah. Yeah.

0:18:29 Andrew: Fifth Circuit opinion.

0:18:28 Thomas: I imagine that doesn't come up that much.

0:18:31 Andrew: It really doesn't. Yeah. When a party appears to apply a presumption of bad faith on the part of the district court where the appropriate presumption is, of course, just the opposite. And then and then the court says, by the way, there was ample time for this court to consider a motion to stay in the normal course. The attorney's assertion that it was prudent to delay seeking a stay until they filed their major, their principal appellate brief is inexplicable. Citation back to the case, preference and impracticability are not synonyms, which that's a great like twisting of the knife.

0:18:32 Thomas: Wow.

0:19:06 Thomas: So I get that these people are the worst, to quote the great Arrested Development, the worst effing attorneys. But if I were them, if I were Sidney Powell et al, wouldn't you just hire like a 2L or a 3L, you know, Like anybody, just somebody to advise you secretly. Like, here's how it works. No, you got to put this page on that thing and you got to turn this in there because it just, the incompetence is staggering.

0:19:33 Andrew: It, it, is. Remember that that's what they did at the hearing before Judge Parker? They hired the foremost ethics lawyer, sanctions lawyer in the state of Michigan to represent them, and, uh, you know, he, he did everything he could, but the problem is when you represent lunatics and they lose, who's right, they blame you for not being on board, right? So they're representing themselves on appeal. It is Sydney Powell and Howard Kleinhandler, uh, who are handling this on appeal. And if you're sitting there thinking, like, maybe we shouldn't put our appeal in the hands of the lawyers who screwed this up in the first place, you're not thinking like the Kraken lawyers, right? That they're, that the only thing that matters is in-group recognition.

I don't see why everybody else can't see the obvious conspiracy all around us, you know, and then you go hire a, a lawyer who is willing to take the case, uh, and then they're like, yeah, man, you lost because, like, your case sucks. Like, I'm the best there is, and, you know, I got you not the death penalty, um, and I mean that literally, right? Like, uh, and so, you know, you should be thrilled and enthused, and instead they fired him. So, yeah, it

0:19:54 Thomas: Yeah. Yeah. Wow.

0:20:48 Andrew: Is, this is the problem when you're an idiot.

0:20:50 Thomas: If you need something done terribly, just do it yourself, Sidney Powell.

0:20:52 Andrew: The Piece of information that is incredibly useful is the last, uh, two sentences here, which says the district court clerk has already referred the matter to the attorney's relevant disciplinary authorities. That is the first confirmation we have gotten, uh, that that actually did take place. And then it says, you know, "Now, when the district court entered its judgment, it had no reason to consider whether to stay its non-monetary sanctions imposed more than, more than three months prior." So if you're wondering, are the wheels in motion in terms of disbarring all of these idiots, the wheels are in motion. And I, for one, cannot wait.

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0:23:34 Thomas: So Andrew, I got a question for you. What the hell is going on with Harvard Law Review because they seem to be, big lie adjacent or something. I don't know what's going on here. Is there some benign explanation for this note they released on elections?

0:23:38 Andrew: So, I believe that there is, um, but I understand why, why folks are really agitated about this, and I disagree strongly with almost all of this note, right? So let's break this down. This is a February 10th, 2022 note entitled, "As the Legislature Has Prescribed," that is a quote from Bush v. Gore, by the way, "Removing Presidential Elections from the Anderson-Burdick Framework." And if you're thinking, gosh, that sounds exactly like how lawyers would title an...

0:24:18 Thomas: Yeah. Well, you say it's a note. What is a note?

0:24:21 Andrew: Well, great question. It's not actually lawyers who write the note. The note is written by, no, a note is, uh, written by a student or multiple student members of the law review. It is unsigned, right? So much of what gets published in the Harvard law review in other legal journals, uh are articles that are written by practitioners or law professors, right. Those Those are the two major sources of people who write law review articles. I've written law review particles. But also, when you're on the law review, you can write a student article.

0:24:26 Thomas: Oh, Did they fold it up like in grade school and then they write the thing on it and they throw it to you like that kind of note? Hmm.

0:25:04 Thomas: Yeah.

0:25:04 Andrew: And that student article is called a note and is very often, at least on the Harvard Law Review, unsigned. So think of it as kind of like, I don't know, it's probably not fair to call it a per curiam opinion. Right. But but it is a way for—and remember, if you're on Harvard Law Review, chances are pretty good you're pretty full of yourself. Right. And, you know, how do I mean that? I mean that with all due respect and love for my brothers, sisters, siblings out there on Harvard Law Review. Uh, but you're, you know, you're you're thinking I got into the best law school in the country and then I got in to, I added on to the most prestigious thing at the best law school. I like, okay, I'm really super smart.

Um, and, and you are, uh, but, but you're not, one thing you are not is a practicing lawyer. Um, and this article is, uh in my view, it has an awful lot of things that are wrong with it. So let's talk generally about that framework and the efforts to sort of characterize the conclusions. And by the way, the conclusion is that of how presidential electors are chosen should either be viewed as non-justiciable political questions, right?

0:25:18 Thomas: Yeah. Yeah.

0:26:21 Andrew: That is nothing the court can can do about it, or that we should, nevertheless, the Supreme Court should overrule its two primary cases that serve as precedent on voter qualification, Anderson and Burdick, right? That's why the Anderson-Burdick test. So, right, this is a pretty radical article. It is kind of shocking to see it come from the Harvard Law Review, because, again, it feels, I think you're not wrong to say, uh it feels big lie adjacent, um, and I think it is the result of, uh, the author feeling overly clever. Um, I I really really hope that there is not just a non-zero, um, there is, I think, a pretty significant chance that the author or some of their friends might listen into the show. So we'd love to talk to you.

0:26:55 Thomas: Right.

0:27:18 Andrew: Send an email to openarguments at gmail.com. Going to mention some things that I think may be motivations for wanting to write this, but let's kind of start out with where it starts out, which is a little bit of a sleight of hand. And typically you do this when you're reaching one political outcome here, a conservative political outcome, and imply you that it also is a good thing for folks who are on the other political side. And so here they begin with a discussion of California Senate Bill 27. Might not remember that. That was a 2019 piece of legislation that said that candidates for president and governor wishing to appear on the state's ballot had to file the candidate's five most recent income tax returns with the California Secretary of State, who would then publish redacted versions in order to appear on the ballot.

0:28:09 Thomas: We Did A whole thing on that, didn't we? Yeah.

0:28:12 Andrew: Right. Yeah. And obviously, uh, that, was in response to Donald Trump. Ultimately, uh, that qualification was rejected, uh, by the California Supreme Court as violating the California Constitution. Okay, not not violating, that was a case called Griffin. And was decided by the California Supreme Court in 2019 that said that, but the legislation was incompatible with existing protections under California state law. So it does not apply. Now, it was also appealed up in the federal courts to the Ninth Circuit. And there were opinions of sort of, there was an injunction initially granted at the trial court level in the Eastern District of California on the Anderson Burdick, the federal test.

0:29:04 Andrew: But at the end of the day, this is not an example of where federal law prohibited California from imposing those requirements. It was state law. Right. So, yeah, there's a little bit of sleight of hand here. They do admit the issue was resolved without any definitive decision as to whether California's law violated the federal Constitution. But it's only a matter of time before the question comes up again. Out that in 2011, racist governor of Arizona, then governor of Arizona Jan Brewer, wanted a birther bill that would require that candidates have to disclose their birth certificate and proof of citizenship to appear on the, the, you know, just, uh, okay.

0:29:39 Thomas: Hmm. Well, that would have been fine because Obama was born in Hawaii, so it's really weird that they um, but, you know, my understanding from all this, uh, from you know, a lot of coverage of 2020, and all that is that states do have pretty wide latitude on this. Even think we've talked about it with the electoral count reform, all that stuff. States can, if they wanted to, ahead of time, come up with all kinds of ways to allocate their electors and do all kinds of things like that. So this idea that there's going to be this inevitable clash between state election rules and the Constitution, is that right?

0:29:49 Andrew: Yeah. Shocker. It was. I think Your analysis is correct, states do have wide latitude, and as a result, the test that has developed from the two cases that I've alluded to, the first case is a case called Anderson versus Celebrezze, it's from 1983, and the second is from Burdick versus Takushi, which is a case from 1992. So the first one involved a law in Ohio, and the second one involved an absolute prohibition on write-in candidates in Hawaii.

0:30:59 Thomas: Hmm.

0:30:59 Andrew: OK, so let's talk about Anderson first. It concerned presidential candidate John Anderson. The candidacy of John Anderson is sort of interesting. He wore white suits in Congress. He was sort of widely recognized as kind of a moderate Republican. Right. And so the reason that he declared was the Republican challenger at the time, Ronald Reagan, was viewed as extremely conservative, possibly unelectable. Got. Yeah.

0:31:30 Thomas: Ah, would that were true?

0:31:31 Andrew: Well, would, would, if that were true. The Democratic candidate was incumbent president Jimmy Carter, uh, one of the genuinely right, like if there are saints, if there, uh, truly good people on this earth, Jimmy Carter is like, he's like 105 and in Haiti right now physically building a house, right. On his worst day he's a better human being than I will ever be, but, right, uh, objectively speaking, not a great president. I, in fairness, a lot of the decisions, a lot of what happened, uh, during the Carter presidency, uh, it was not great. So, right, John Anderson thought, uh, sensibly at the time, like, look, um, you got an incumbent president, uh, who's having a rough time of it. I mean, this was, I will tell you, I was obviously very, very young child in the 1980 presidential election.

0:32:21 Andrew: But I remember that on TV that, you know, you had three networks at the time and the networks would run a counter in the lower right hand corner of how long American hostages had been held, like every single day. Like, just imagine that. And again, very, very complicated story. They were, released you the day that Carter got out of office. You could just imagine the toll that that would take on a presidency, right? You know, no matter how strongly you were concerned about the incoming Ronald Reagan, or, you know, how partisan a Democrat you were, that's wearying. So enter John Anderson.

0:33:07 Andrew: He got six and a half percent, 6.6% of the national popular vote, but zero electoral votes, didn't, didn't meet the threshold in any of the states. So, uh, he was initially kept off the ballot in Ohio because he didn't file in time. There was a March 20th filing deadline, and you might be thinking March seems kind of early. Because, you know, uh, there's still primaries going on and everything, yep, that was just, Just the Ohio rule was that if you're a third party candidate, if you're independent candidate, you got to file by March, even though if you were a candidate from the Democratic or Republican parties, if you WERE nominated by a major political party, you DIDN'T have to file BY MARCH.

0:33:29 Thomas: Yeah. Oh, interesting.

0:33:53 Thomas: So they didn'T make every single like primary candidate file just in case ahead of time.

0:33:53 Andrew: Nope. Different standards. And that was the basis for Anderson's lawsuit, right? It was a 14th Amendment claim that said, you're treating me differently on the basis that I am an independent candidate, a third party candidate, as opposed to if I was a candidate in one of the two state national parties. And the Supreme Court was like, yep, we certainly are, and and it kind of left open—Supreme Court held 5-4 that that restriction was arbitrary. Right. So they weighed the burden of the Ohio law, which is you can't rely on what everybody else is doing against the state's asserted interests in, you know, policing the ballot, making sure everybody wasn't on it, and was like, well, okay, but it's hard to imagine why your need to keep, you know, 50 novelty candidates off the ballot, why that's served by by having an earlier filing deadline, right?

0:34:04 Thomas: Yeah, yeah? Oh, Hmm. Yeah.

0:34:57 Andrew: That decision struck down the state law but didn't really give states enough guidance as to like, all right, well, well, what, what constitutes, you know, a compelling state interest here? What constitutes a burden that that goes too far? Unsurprisingly, you also have a court that is moving to the right. And so you have, in my view, a far more restrictive statute in 1992. 92. That was Hawaii, which had, I believe still has, and so do a number of states, a law that prevents the state from counting write-in votes. So plaintiffs said, yeah, I want to vote for a write-on candidate, and the law does not allow me to do that. So I am suing, again, First Amendment grounds, association, 14th Amendment grounds. Why should we treat write in candidates differently than uh candidates of uh, know, third and independent parties?

The Supreme Court said, well, you know, I, I know we have that Anderson case, I know you thought you were gonna win on that, um, but that if, uh, that seemed like it was going to apply strict scrutiny under equal protection clause of the 14th Amendment to every single state election restriction, well, uh, we made a mistake on that, um, we, we, we meant to say that strict scrutiny applies only to quote severe restrictions on the

0:36:15 Andrew: Right to vote to each individual and that quote reasonable non-discriminatory restrictions are subject to a rational basis test, a lower standard such that the state's regulatory interests are generally sufficient to to justify them.

0:36:29 Thomas: How do you know if it's like too restrictive before you apply scrutiny or not? Is that like a two-step process? First, you figure out how restrictive it is, and then you can apply strict scrutiny or rational basis or whatever.

0:36:44 Andrew: Exactly right. Yeah. The court will look at it. If your argument is when the legislature is voting right up or down, how do we know if a restriction is going to prove to be severe or going to proof to be incidental? I think that's sort of part of the criticism of these lines of cases, right, which is strikes you as severe might not strike me as severe and vice versa. So, right. I, I think inclination is is probably correct. But nevertheless, right. Like, I think the counter argument to that is, look, a lot of Supreme Court balancing tests are, you know, kind of similarly vague. Right? Right. And the idea is if it infringes on a significant chunk of your right to vote, then we're going to require that that be narrowly tailored to achieve a compelling governmental interest.

If it incidentally burdens your right-to-vote, then, you, we're almost certainly going to uphold it on a rational basis. And, you now, the hard cases kind of come in the middle, come whether, right, your restriction triggers that filter or not. So I thought, for example, it seems to me to be a pretty significant burden on your right to vote to say you can't write in a candidate at all, what Hawaii said.

0:36:45 Thomas: Okay. Yeah.

0:37:55 Andrew: We just throw your ballot away if you've written in a a candidate, or we've stricken that line, effectively you, we've thrown away your vote for that office if you write in a candidate. However, that is essentially endorsing the electoral theory that we continue to articulate here at opening arguments which is it's not about yeah, it's not about, like, the the reason that that is an incidental burden on your right is because your right in Canada wasn't going to win, and this is not about you getting to make some kind. It's about you getting to affect the outcome of an election and, the state can rationally preserve a two-party system or at least a major candidate system, system, and um, the two interests asserted by Hawaii were preventing unrestrained factionalism, right, that is having 50 candidates on the ballot, or

0:38:09 Thomas: Yeah, I was going to say, it is a throwaway.

0:38:45 Thomas: Yeah.

0:38:45 Andrew: Literally an infinite number of candidates if you allow right in, and and voter rating, right. And so the idea there is, uh, you convince somebody who would otherwise have voted for a major party candidate to vote for your write-in or your nonsense candidate instead. Another thing that maybe we've talked about on the show, um, so, uh, that second Burdick case clarified the Anderson rule. Now we have a test in place, as you point out, um, what constitutes severity now becomes really the key issue. And so, you know, here's an example where where we might disagree, um, Indiana's voter identification law standard voter ID. You have to show a state issued a driver's license or state issued ID in order to vote, Nope, most states you do not. Most states you have to confirm that You were on the election rules, So the you Go up and you stand in line and they say, "Who are you?" And I say, "I'm Philip Andrew Torrez." And they say, "Oh, where do you live?" Or something else that that confirms what's on their voter roll, and I say, "You know, I live," and I give my address. And

0:39:23 Thomas: Remind me what that is.

0:39:39 Thomas: Oh, I see.

0:39:53 Andrew: They match it without me having to physically hand over a document and prove, right? The reason that that works in most states is because, right, voter fraud isn't a thing.

0:39:53 Thomas: Yeah.

0:40:03 Thomas: Your master plan is to pose as somebody else to vote one meaningless vote, and the penalty you face for doing so if you're caught is like imprisonment, all for one more meaningless vote.

0:40:13 Andrew: Yeah. Right, yeah. That is not how any kind of, and it, by the way, is not how the fraud that the Kraken lawyers allege in connection with the 2020 election, right? Like, like the things they allege are not things that would be solved by voter ID laws. Nevertheless, they're in favor of voter ID law is because they deter individuals who are otherwise deterred from seeking identification. Right. Valid voters who don't have the money, don't Have a car. Right. Like, you know, it's and therefore tend to vote Democratic. So the question then was, is this case was called Crawford versus Marion County Election Board. The question was, Is? Is a voter ID? Is that a severe? Is That a law that severely restricts the right to vote?

0:40:29 Thomas: Oh, yeah. Hmm.

0:41:01 Andrew: Or is it a non severe non discriminatory restriction? Right. That's that's kind of how that got clarified. That case was sort of a mess in terms of there there were a bunch of different concurring opinions. But ultimately, right, the court said, yeah, voter ID laws are OK, even motivations, you could nevertheless justify the actual implementation through nonpartisan means, right? Right. Yeah. Yeah, it

0:41:29 Thomas: So the court like came up with an excuse for them yeah

0:41:33 Andrew: Did. Right. It said, look, because, you know, Indiana said, right, our legitimate state interest is preventing voter fraud. The Democratic Party of Indiana said no. Here's testimony from Republican state legislators that it will help them and hurt us. And the Supreme Court was like, well, yeah, probably. But, you know, if they had meant to do this thing, that would be a valid interest. So therefore, we're going to uphold the law on the basis of the Anderson verdict test. And then, you you had a Justice Scalia concurrence that was like, yeah, I don't see why we would care. This is not a huge infringement on your right to vote.

So it's fine. It doesn't really matter how strong or how weak the motivation of preventing voter fraud is because this is a non-severe, non-discriminatory restriction. Restriction. So kind of put all of that together, and and I have tried to sort of lead you down the path that I think the Harvard Law Review wants to lead you out, right, which is Burdick doesn't seem great as a rule for adjudicating how states can restrict the qualification of voters. So their argument, and again, this is very, very typical in a law review article, is, um, okay, well, well, let's get rid of Anderson Burdick.

0:41:48 Thomas: Yeah wow

0:43:01 Andrew: That's where I think it kind of runs off the rails, right?

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0:47:21 Andrew: So, you this is the very, very worst part of the argument, It begins with repeating the language from Bush versus Gore that that says state legislatures have the power to forego elections altogether and just appoint presidential electors. Want to say this because we've not tackled this argument on the show. That is stated as as though it were a fact in Bush v. Gore. It is just dicta in Bush V. Gore, Bush V Gore, as we've done from all the way back in episode one of the podcast. Bush v. Gore is an unsigned per curiam opinion that is expressly limited to the facts of that case and of dubious precedential value. The courts Right. Have said that I, for one, and we should do this in a deep dive Tuesday in the future.

0:48:10 Andrew: I would be prepared to argue in court that it is no longer the case that state legislatures could reclaim the right to appoint presidential electors. I will need time to develop that argument. I want to concede that it would not be a majority argument. It's I'd have to make the argument and are arguments to the contrary. But I think any fair lawyer would concede that I could make that argument in good faith, that I can write a law review article that says, says, can't, given where we are right now, and given the case law that has developed, you cannot rescind that right.

I don't care what the Supreme Court said in Bush v. Gore, in dicta, they got that wrong. So they begin with that principle, and then they make what is a truly terrible argument. I'm going to read it directly. Recognizing the authority of states, states, that is to do whatever they want in terms of setting limitations on ballot access, would reflect the basic interpretive rule that the greater includes the lesser. For instance, Congress has the power not to create the lower federal courts, and that power implies the ability to create courts of less than maximum jurisdiction. The application of that proposition to presidential elections is straightforward because states need not hold popular elections.

They may therefore therefore hold those elections in a limited way. Just as that power includes the ability to hold presidential elections based on geographic divisions, it could also include the ability to hold elections without certain candidates or with stringent voting requirements. In addition to its logical force, this principle allows for compromise.

0:48:23 Thomas: Yeah.

0:49:47 Andrew: For example, imagine a state so concerned about voter fraud that it believed conducting an honest presidential election would be impossible under rules that would survive Anderson Burdick. Giving that state a freer hand would discouraging it from choosing not to hold an election at all. A lot of bad arguments packed into that paragraph, so yeah

0:50:05 Thomas: That last one sounded particularly stupid to me, yeah

0:50:08 Andrew: So let's, so let's try and and unpack that. The first is, um, it is true that one of the canons of statutory interpretation is that the greater includes the lesser. Um, it is also true that that is of particularly limited force when you were talking about allocating basic rights. So, for example, let's give an obvious counter example, uh, states could decide not to hold presidential elections for their presidential electors, so totally okay if they restrict restrict the right to vote to white people, right?

0:50:39 Thomas: Yeah.

0:50:39 Andrew: Now, I would not survive constitutional scrutiny.

0:50:41 Thomas: Because that group of people is less is That What it's Saying, like, it's lesser Than the

0:50:44 Andrew: Yeah, the greater power includes the lesser, right, so yeah, and again, that's a very simplistic argument. The article itself notes that as a caveat, later right on, so I don't mean to suggest that the author of this note has not considered that argument. I do mean to suggest that principle, in my view, of the greater includes the lesser is of highly limited utility because it's Very easy to envision a lesser standard, right, that is way worse than just not having it at all? It's easiest to envision how those standards would suck when they are on the basis of protected classes. But me let give something that, for example, would not necessarily run afoul of the 15th Amendment, prohibiting access explicitly on the base of race.

Race, um, but let's have, like, supercharged poll taxes, right, let's say for presidential elections, uh, the state of, um, and I'm just picking the stateof Ohio, says it's going to be one dollar, one vote, right, and what we're going to do is we're gonna have a fund, uh, the fund will go to, to fund public schools, uh, well, everybody gets to vote, and you get an every, you know, for every, every dollar you donate here, you get one ballot.

0:50:46 Thomas: Yeah Yeah Right

0:51:55 Andrew: Under this article's framework, I think that would be fine, right, under this justification of, like, well, come on, you'd rather have only people paying for votes than have a system with no votes whatsoever, right, that's the last sentence. Giving that state a freer hand would discourage it from choosing, choosing not to hold an election at All right, the, the idea is it's Better

0:52:17 Thomas: We Gotta let Them get Away with whatever they want because this hypothetical is worse, yeah

0:52:20 Andrew: Yeah And, the hypothetical before that is a state so concerned about voter fraud it believed conducting an honest presidential election would be impossible under rules that would survive Anderson Burdick. Let's unpack what that means. That means having dipshits, QAnon level conspiracy theorists, take over a state legislature, like in, say, Arizona, and say, OK, well, we got to have, these levels of scrutiny before we can consider votes to be legitimate. And that level of scrutiny would not survive Anderson Burdick because it would be a major restriction on your right to vote. That's the kind of vote that this article wants to protect. And I just reject that argument outright.

0:53:09 Andrew: If right? A state is going to craft restrictions that rise to the level of being. And again, remember, the Supreme Court's term here is severe restriction on your right to vote. Then, no, that's not preferable to not having a vote.

0:53:18 Thomas: Yeah Yeah What's preferable is just being like, nah, don't Do that, we're Not letting You Do that

0:53:24 Andrew: Yeah. What would be preferable would be would recognizing the right to vot. Vote. And again, I realize that I have to articulate the argument as to why that is inherent in the Constitution today. Delightfully out of touch of thing that could only be written in a note in the Harvard Law Review. Another value underpinning the Electoral College is, put bluntly, elitism. In extolling the virtues issues of the Electoral College, Alexander Hamilton note that it would place the selection of the president in the hands of a small number of persons selected by their fellow citizens from the general mass.

Indeed, because electors cannot be federal officials, one original purpose of the Electoral College may have been to ensure that the power to select the president was vested in a group independent of both the government and the broader population. While less common than arguments about federalism, the idea that electors should exercise their own discretion in choosing the president has not vanished from popular discourse. That's irrelevant. The Supreme Court has declined to recognize the rights of electors to make their own decisions independently of the states that have selected them. We talked about that with Lawrence Lessig. That's the Baca versus Colorado decision. That is fatal to this argument, right? That deserves more than just kind of an aside here. Uh,

0:53:45 Thomas: Yeah Uh Could I ask you to explain that, I'm not tribe, yeah

0:54:40 Andrew: Sure. Um, if you are saying one of the reasons to think that states should have plenary power has to do with the structure of the Electoral College, the fact that the Supreme Court and that decision wound up being titled a Chiafalo versus Washington. But again, those were the faithless elector cases that Lawrence Lessig was behind. We had him on the show to discuss that the Supreme Court said, yes, it is perfectly reasonable for states to impose penalties that basically require electors to be faithful to the popular vote. Vote, right? That say, no, I don't care when you get in the, you know, when you get there, you really think, you know, some other candidate is your preferred choice for president. If your state voted for Biden and you are a Biden elector, you are required by law to vote for Biden.

0:55:29 Andrew: That principle was upheld in the Ciafalo decision, right. So the Supreme Court said, yes, states can require their electors to be faithful, to not exercise their independent view. So any argument about notion the of electors being this kind of Athenian body that could check against the whims of the majority by getting together and just voting for the person that they want as opposed to the person and that the majority wants has been explicitly rejected by this Supreme Court, by the Roberts Supreme Court.

0:56:03 Andrew: Yeah, exactly. So to to bury that in the middle of a paragraph and conclude with, but the conclusion still allows electoral votes to be awarded based on the wishes of the state political elite, seems to me to not sufficiently engage with the Chiafalo decision. Decision. I will not get into the argument that this reaches other than to say it offers kind of a two-step process. It says, look, either we should say that selection of electors is a non-justiciable political question. OAA listeners, you know what that means, that right means the court is powerless to award relief at all if there's a question about a state law that governs how presidential electors are appointed. Let me give you the most horrific example of that. That would be, suppose Donald Trump had had lost by only one state in 2020, have lost by, let's say, Georgia. And then he had called up the Georgia governor and and said, I

0:56:01 Thomas: Which is saying something like hmm

0:57:07 Andrew: Need you to pass a law that says, nope, retroactively, the 2020 Georgia's presidential electors from 2020 will be awarded to Donald J. Trump. Right. Imagine as corrupt, ridiculous, monstrous, horrible as you could possibly imagine. That would be it. You right? Lose Georgia. You loose the popular vote. You call them up. Georgia has a Republican governor and a Republican state legislature. And after an election has taken place, they say, OK, yeah, guess what? But we're going to rewrite the rules and we're just going to say our electors go to the vote of the state legislature and that the state legislator votes for Donald Trump. There you go. If this article were taken seriously, if it were a non-justiciable political question, you would have no remedy in the federal courts for that law. That cannot be the law.

0:57:13 Thomas: Yeah

0:57:59 Andrew: It absolutely does not pass the straight face test and would be the law. I think, implicitly recognizes that and says, okay, well, look, if you're not convinced that it should be a non-justiciable political question, at least we can get rid of this Anderson-Burdick test and instead give substantial deference to what states want to do in terms of restricting ballot access and in terms of how they allocate their electoral votes. Now, that's, again, think, subject to the same kinds of lack of precision arguments that underlie Anderson Burdick. Right. Like, I don't I don't see how that solves the vagueness problem.

But I guess we will have to wait for my omnibus article on why states do not have the power to rescind having. This is often called the one-way ratchet, but I would argue, you know, once you open up presidential electors to a popular vote, you can't then take that away. That's going to have to wait. But yes, unbelievably, meant to be overly clever, meant to spark popular conversation. So we oblige them, We oblige right? The Harvard Law Review here, but I would love it, man. If you wrote this article, if you know who wrote this, have them write into us.

0:58:49 Thomas: Yeah yeah so you think it's as simple as that, it's clickbait, it's Harvard Law Review clickbait, I mean, because look, Harvard, let's be real, hasn't been sending their best, uh, present company excluded, is it a future Rudy Giuliani? Is it a feature, here's Ted Cruz who's writing this law review note, or do you think it's someone who's mentally who's masturbating, and we all have to read it for some reason.

0:59:41 Andrew: They let me give one thought as to why it may be a well-meaning but misguided opening arguments listener, right? And that is Section 4, which is entitled Remaining Limits, that says essentially, look, if you take this away from the federal courts, right, it doesn't mean it's a free-for-all. You could still have state limits, interpreted charitably, you would then say, look, like, you are sure that you trust Amy Coney Barrett with adjudicating these decisions? Maybe if we had

1:00:11 Thomas: Well, yeah, but doesn't the same logic apply to Roe v. Wade? Look, we just want to hand it to the states, Andrew.

1:00:12 Andrew: No. I'm doing my best here.

1:00:18 Thomas: Well, your best isn't good enough on this one. Stop defending this person. Unless they're a listener to the show, then you're great. Right in.

1:00:20 Andrew: I. Yep. Unless there are. It's Conrad Michaels who wrote the article, at which point we Will be rescinding this episode. No, but look, if what you're thinking about is how do we limit federal court jurisdiction so as to avoid the onslaught of right-wing activism that we're five years in and maybe 35 years to go, I get that. But but again, the the problem is that you don't have to limit federal court jurisdiction for state court to sit on top of that. It right. Is already a part of existing federal precedent that, again, ignored in Bush versus Gore, but that federal courts should defer by and large to state courts in terms of how they interpret their own electoral rules. And if you had a state court, if you had a State Constitutional provision that went above and beyond.

1:00:27 Thomas: Yeah, that's true. That's the one person.

1:01:18 Andrew: And by the way, if you're in a blue state, we should be passing these laws yesterday. If you're in a state that does not have a constitutional protection of the right to vote in every election, including presidential elections, to we need to get those on the ballot. If that becomes a part of the State Constitution, then there's nothing that the right that that's an additional protection that the federal constitution doesn't offer. And there's Nothing Amy Coney Barrett can do to take that away from you. So I do not find the reasoning persuasive. But you know, that's that my best effort to say maybe it is a well meaning Oh, a listener who just happens to get it wrong.

1:01:54 Thomas: Well, I suppose we'll find out in the email inbox. Box and

1:01:57 Clip: And thank you, Let's go!

1:01:59 Thomas: And now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. And we are on, you ready to sing it with me, Andrew? We are on the final quartile. Here we go. That final quartile, I'll start us off. Snowmobiles are less edible than you think. Huh? I didn't think they were any edible, but okay. Absion, new year, new Patreon name, same great karaoke legend.

1:02:08 Andrew: Final quartile

1:02:26 Thomas: Jonathan, give to modestneeds.org, then visit deepfakestop.com. Chris Waltrip, Milo Meadsong takes full and sole credit for the retirement of Stephen Breyer. There you go. Yeah, was that the retire, wishes you a happy retire now? Yeah, you did it. Wow, I think you can take full credit. Join your labor union. Together we bargain, alone we beg. Two fab light bringers make names with in-jokes from two podcasts. Oh, okay, cool, well done. Felony trial for Sergeant Javier Escueda in retaliation for whistleblowing police misconduct begins in July. Lie. But is it okay to take podcast advice from a law-talking guy? Yeah, I think so. WordOrigins.org has a new book, From Barflies to Bitcoin, How Words Map Our Modern Era, available on Amazon.

1:02:18 Andrew: Oh nice yeah oh that sounds interesting

1:03:14 Thomas: Not that, Chris Wallace. My witty names aren't original. My original names aren't witty. False Anonymous. I know that's your favorite, Andy. Love the False One Anonymous. RIP, Notorious RBG Dude, Derrick Liz, Puffy Coats Are Violence, W Malcolm the Dragon, the Precious Variant, Big Easy Blasphemy, Don't Read This on the Pod, We Don't Need to Call Out, Thanks for What You Do, Sorry I, My Job Is to Read the Names I Read the Name, Wish You Weren't Here, the Anti-Social Pink Floyd Tribute Fan, that's good, nice, uh, and Ronda the dork.com Your turn, Andrew.

1:03:52 Andrew: I've been I've reading some of uh ronda the dork.com anyway uh Thank you to, to A String of Unpronounceable Characters, to Malika Chandler, to They Said I Could Be Anything, So I Became Two Princes Who Adore You. I got to tell you, sticking around with this in the final quartile, I'm going to put Spin the Doctors, Two Prinaces, I'm gonna play that song today just for you, Patron. Soggy Pants, Therese Chan, Adopt a Homeless Pet in a Postie, Clang an Ear Docking, Date Jury Belly at Packy's at Last, Baby, Heather L., Matthew Vernon, Jeremiah's Fancy Microwave Emporium, In an Alley, Danny Rosari, Butterscotch the Cat, Eli Bosnick Gets to Change His Patron Name Because Patreon Gave Up on His Blog Too, Adam Costa, Theresa Gomez Without a, without a name boy, wow, if we've, if we lost Theresa Gomez, I'm worried about what we're doing here, Thomas. Uh, David in

1:03:52 Thomas: Hmm. That's

1:04:43 Andrew: Brooklyn, Sam Denow, Mitchell, Blorco Number Five. Blorico. All right.

1:04:49 Thomas: Uh, yeah, philosophers in space reference there, uh,

1:04:52 Andrew: Michael Rops. I agree with that 100 percent. Sam Buck. And of course, our all time great editor in chief of the Harvard Law Review, Conrad Michaels.

1:05:04 Thomas: If Conrad, if that is you, I'm sincerely sorry. I will do an entire apology podcast for it, and

1:05:08 Andrew: That will be such a great show.

1:05:11 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:05:17 Thomas: Now it's time for T3BE, Thomas Tries to Be Ethical, answer time. Let's see, dude, does the streak continue? Uh, perfect on this exam, uh, we'll see though, could I've gotten this wrong?

1:05:28 Andrew: Yeah, this is a mandatory reporting question. So this is an attorney, five person, five lawyer law law firm, learned that one of her partners defrauded a client, charged personal expenses to a client fraudulently represented that the expenses were related to the client's representation. After being confronted with evidence of the fraud, that partner resigned.

The attorney then told the client, made them whole, refunded the money and said, hey, man, do you want me to report this lawyer who defraud you to the ethics, you know, to the to the state bar commission? And the client was like, you do whatever you want. Client Right. Did not object to the disclosure, but left the decision to the attorney. Must. Right. Is the attorney required to report the partner's conduct to the disciplinary authority? You went with yes.

You went would be yes, because the conduct raises a substantial question as to the partner. Honesty, trustworthiness, or fitness as a lawyer. Thomas, you are seven for seven on ethics questions. Nailed it. I was hoping this, because this is, I bet that we get a number of lawyers who go with a no answer here, because in practice, I will tell you that lawyers do not comply with with this provision. This rule is rule 8.3,

1:06:32 Thomas: Interesting.

1:06:42 Thomas: For example. The Harvard Law Review hasn't reported whatever asshole wrote that stupid article. Well.

1:06:48 Andrew: Oh, now that's mean. They're going to write to us.

1:06:51 Thomas: You know what, you're right, I rescind that, because maybe they did report them, I don't know.

1:06:55 Andrew: I love you, Thomas. So rule 8 point three of the Model Rules of Professional Conduct sets out mandatory reporting and reporting professional misconduct, subsection A. This is under maintaining the integrity of the profession, and you've heard me talk about, about that, it is a thing I take seriously, I think a lot of lawyers take seriously, but, but here's how broad the rule is, it says a, a lawyer who knows that another lawyer has committed a violation of the rules of professional conduct, okay, that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority, right, mandatory reporting, so you know they violated the rules, and, and here you, now, charging personal expenses to a client is a per se violation of the rules. And if it raises a substantial question as to honesty, trustworthiness, or fitness to practice law, you have to report it.

1:06:58 Thomas: Hey,

1:07:49 Andrew: Would, I dare say, day-to-day life, most lawyers have a threshold that is somewhat higher than that in terms of mandatory reporting, that right, you look, you see, you say, man, that that really feels like somebody who has flouted the ethics rules, but I don't, I don't know that it rises to the level of my filing a, an attorney grievance complaint against them.

Maybe I'm wrong on that, but, but certainly that is my perception from being in, being in practice for a very, very long time. Uh, know I've, I have never had, uh, a case that has, that come to me that I thought clearly met rule 8.3, um, uh, and where I've, and I've never filed a bar, a grievance complaint against another lawyer, I've thought about it in a few cases, uh, but, uh, but in the end, you know, I've sort of erred on the side of, of, uh, of not reporting, um, maybe I'm wrong, but, uh, I think I, lawyers probably apply a somewhat higher standard in their mind. Not because any violation, you know, it's hard for me to imagine a violation of the rules that doesn't raise a question about your honesty. Right? You know, an accident, I suppose. But

1:08:57 Thomas: I had the, the, you stole a pen, you know, one. That was my reasoning. Like they're just something kind of minor that, could be looked at as, you know remedied it. It wasn't something that spoke to your character. It was just kind of a mistake sort of thing.

1:08:57 Andrew: Yeah, you yeah, Yeah, you can.

1:09:12 Andrew: Yeah, could see that. But doubt it.

1:09:16 Thomas: What do you, you doubt what, what do you mean? I got the answer, right? Didn't I? So did I get it right for the wrong reason or what?

1:09:17 Andrew: Well, I know you got it absolutely right for for the right reasons. Sorry, when I say I doubted, I mean that I think that there are more cases than just, you know, inadvertent, "I stole the pen, I didn't really mean right," yeah, I think that that in real practice lawyers probably have a higher standard

1:09:34 Thomas: Oh, okay. Well, I'm just too ethical, Andrew. The world can't handle it. Let's find out if somebody is equally ethical or if this question tripped anybody up. We'll see.

1:09:48 Andrew: And Well, Thomas, this week's winner is Katrin on Twitter, who writes, "There was a limerick, then a sonnet, try a haiku," and then gives us, "Answer be it is, when it comes to money, you must always report." Well, how could I pass up a haikus? I think this is technically a senryu, right? I'm sure I'm getting the pronunciation wrong, but the subcategory or relation to haiku that doesn't involve an allusion to nature, unless you think money is, you know, natural. So, uh, either way, congratulations to Katrin on being this week's winner. Everyone, let's give them a follow, they are at Katrin67 on Twitter, that is at K-A-E-T-R-I-N-6-7. Congratulations, Katrin, for being this week's poetic winner of T3BE.

1:10:38 Thomas: That's Our show. Thanks so much for listening. One more reminder to catch our q a it's probably like now, you know, it's very close, Tuesday, March 1st, at 4 p.m. Pacific, 7 Eastern. We'll see you then, see our smiling faces, uh, if not we'll you on Friday.

1:10:38 Andrew: Yeah.

1:10:53 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.

1:11:27 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.