OA618: The Case That Could Allow Republicans to Steal 2024

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 618. I'm Thomas. That's Andrew. How you doing?

0:01:22 Andrew: Hi, I'm fantastic Thomas. How are you?

0:01:24 Thomas: Well, I'm just going to assume that by the time people are hearing this, I am negative. I am great. Totally cured. Kids are going back to school, I bet. It's all fine. So I'm great. I'am fantastic.

0:01:28 Andrew: Yeah. Birds are singing. They're double rainbow in the sky. Yeah.

0:01:37 Thomas: And I'm also excited for today's show. And one more quick reminder of our YouTube Q&A. Probably as you're hearing this you have just enough time to hop on over to YouTube. YouTube. You'll see the links in our social. We'll post about it. Reminder, everybody is invited to come watch us, to come interact with us. By the way, Morgan Stringer usually comes along, hangs out in the chat. That's always fun. She's hilarious.

0:01:57 Andrew: Yeah, absolutely.

0:01:59 Thomas: We get her quips along the way and we interact in the chat a little bit. Patrons, of course, are the only ones who get to ask the questions and that's on the Patreon thread that Andrew drew up already. And just another reminder to vote on the questions you want to hear Andrew answer. That's the best way to get the best show out for you, I think. A little bit democratic. Not 100%.

0:02:20 Andrew: No.

0:02:20 Thomas: There is the Thomas Electoral College. You know, I get to, I'm a little bit of an electoral college.

0:02:24 Andrew: We're, we're a republic here at Opening Arguments, not a, not constitutional monarchy.

0:02:27 Thomas: Yeah. So we will you on Tuesday, Tuesday Aug 2, which might be like right now at 5 p.m. Pacific, 8 p.m. Eastern. All right, on with the show.

0:02:37 Clip: Andrew Torres is wrong, wrong, wrong.

0:02:41 Thomas: So we got Andrew's wrong. Yeah, this is an interesting one. Actually, there were enough emails and comments and stuff that I saw this too. And Andrew, talking about the Secret Service texts. We did get a number of tech people who were like, nah, this actually seems like it could just be an accident. What did you think about this?

0:02:59 Andrew: Yeah I, I thought long-standing patron Chris Kaiser, who I think is in the field, put it this way, and I'm going to read it despite beginning with, hey, guys, Andrew was wrong, which is, you know, is the best way into my heart. Andrew is wrong to treat the probability of unintentional data loss as negligible in 0A615. Okay, so if that's the claim, on board with hearing it, Chris says. It says, TLDR, Andrew's substantive point is already well supported without the sufficient but unnecessary support of poorly developed technical evidence. I certainly agree with that. In Right. Other words, I was drawing an inference based on the rather suspicious timing of the event. And Chris's point is, okay, well, you don't need, if you're going to draw that inference, you don't have to also have a discussion about the likelihood of a technical failure because that's already the null hypothesis.

0:03:53 Andrew: So I agree with him on that. Andrew is correct if he is describing the probability of an end user accidentally erasing data with a backup. And I think that was kind of my mindset, right? This is somebody who, the viewpoint of someone who doesn't work in IT. And uh, and I agree with that, right, the probability that the end user erased that data is zero. If the end user wanted to intentionally erase that data, then there would be an increased probability that they successfully erase the data proportionate to their level of access to the backup drives. Okay, however, erasing data is about preventing recovering of any usable data intended for erasure. Because of the massive scale and complexity of the U.S. government's backup operation, data loss from accidental deletion won't happen, but incidental loss of the data will still happen.

0:04:41 Andrew: Data can still be lost due to corruption, drive failures, network errors, etc. Those can result in isolated losses where only some of the data is rendered totally useless in terms of the Secret Service texts, assuming they're all government phones. The probability that the relevant text would be lost incidentally is very low, likely a small fraction of a percent. That small chance is only negligible if the effect of bias is also negligible. We have to consider how likely it would be that any significant document relevant to 1.6 would have been lost incidentally. We also have to considering extenuating circumstances on that day that may have increased the probability of incidental data loss for that medium. That's really, that is a strong point, None of this is to say that Andrew is substantively wrong about the text being intentionally destroyed or hidden, but the technical support for the argument is a lot harder to develop than Andrew implies.

0:05:28 Andrew: I can endorse that. I think that's good. Ultimately, we know the probability of incidental loss could be extremely high, but that probability is independent of the probability of someone attempting to erase those records. The technical argument may be sufficient in itself to support Andrew's argument, but his argument is supported by a lot already from what we know of Trump's past behavior, obstructing and hiding information. And I think that that division is correct, right? Like if you're thinking about it in a Bayesian sense, like, yeah, what is the prior probability that criminals who have spent an entire presidential administration covering up crimes, tried to cover up this crime. Hi, but that doesn't have anything to do with the technical stuff, right? That's independent of, you boy, could it be the case that a server was kicked over by a dude wearing goat leggings on January 6th? Yep, absolutely. So that I think fairly summarizes. We had a couple of emails on those.

0:06:06 Thomas: Yeah, it was certainly the most complicated way of putting it. I just saw some that, you know, are like, no, actually, there's plenty of ways that this could have been accidental deletion. And as That email points out, though, and I think this is consistent with what I was saying based on my very limited experiences, it's not the end. It's not an individual Secret Service agent, like, deleting something or throwing his phone away because that doesn't do it. There's backups and all that. But there could be, you some sort of like, oh, there was an update in a server, blah, blah. You know, something like, some combination of things. So I don't know. How do you feel about – how does this – very complicated email and Bayesian, what's its – how does that update your Bayesian prize? What's your percentage on accident versus intentional? Yeah.

0:06:20 Andrew: And yeah, and I love it. Yep. Right.

0:07:07 Andrew: Yeah, I think you can restore that there was a in other words, I interpret Chris's argument as this. If you took the entire modern history of White House record keeping. Right. Let's say that stems back to the George W. Bush administration, right. 2001 to the present and said, what is the likelihood that there is a day or two days or, you know, a a reasonable gap of time in which all the records in which which all of a relevant subset of records have been lost, but for non nefarious reasons I can get on board with, Oh, Hey, that's a much bigger probability than you thought. Right. And, and so then what you do is you just weigh that prop, that prior probability with the question of now, what is the likelihood that that crazy random happenstance happens to be the day of the insurrection?

0:08:04 Andrew: Insurrection, and you have to discount for that the point that Chris makes in the middle, which is the events of the insurrection may be a confounding factor, right? It may be that the people responsible for running the backups were a little otherwise occupied that day, right? Like there are lots of, so not knowing that, that's not information any of us have access to at the moment, um, so we, to set that aside, now we just have to compare, right? Well, what's the likelihood that this, just that that date happened to coincide with January four, five, six versus, uh, the prior probability of we're dealing with bad actors, which hasn't changed. Like, we, right, we know we're still dealing with bad actors. So, uh, that's how I think Chris comes to his conclusion of, hey, you should adjust upward the likelihood that this could have been an accident a lot. But now that just places a tremendous value on the, the timing, okay, right, sure, but it seems awfully suspicious, right?

0:09:04 Thomas: You haven't answered my question. What's yours? What is?

0:09:07 Andrew: Well. I this.

0:09:07 Thomas: Your percentage? What do you think?

0:09:09 Andrew: Still seems very suspicious to me. I I have moved upwards, you the possibility that, that, uh, it is unlikely, but, you to me, it's now a sort of like, if if I were to subpoena records, uh, from a party and they said, oh man, I'm sorry, like our basement flooded, right? Like, okay, basements flood, but like.

0:09:27 Thomas: Permission.

0:09:27 Andrew: You know what's the likelihood that it flooded only at this particular time and, uh, exclusively at that particular time such as to, to deny us all access to those records? But not but that's not disclaiming, the, you probability that, that basements do flood. So that's how I think about it now.

0:09:44 Thomas: To treat the witness is hostile, will you please just give me a percent?

0:09:48 Andrew: Do.

0:09:48 Thomas: Andrew, are you a hundred?

0:09:49 Andrew: I.

0:09:49 Thomas: Percent?

0:09:49 Andrew: Have to. Fine.

0:09:49 Thomas: Are. You 80?

0:09:50 Andrew: I'm. I'm 99. How about? That.

0:09:52 Thomas: You're. Oh. Wow. Wow, well that's useful. I really didn't know, like, what, because I, I from the, the comments I saw, you know, it gave me more doubt than I think you have. I, I was like, oh, maybe, maybe I'm like 50-50 accident versus, uh, intentional now. So that's, okay, interesting, interesting, I'm glad you put a percentage to.

0:09:52 Andrew: Yeah.

0:10:08 Andrew: 90.

0:10:08 Thomas: It finally all.

0:10:10 Andrew: 95, I don't know, high. Nine.

0:10:12 Thomas: Right. That.

0:10:12 Andrew: Beyond a reasonable doubt, which I, I say with. No.

0:10:15 Thomas: It's. Nefarious.

0:10:15 Andrew: Yeah. Yeah. Yeah.

0:10:15 Thomas: Really? Oh. Wow. Okay, all. Right, well. We'll. Get more emails all.

0:10:18 Andrew: That's. My. Yeah. I can't wait, yeah.

0:10:21 Clip: Down the law, down the law.

0:10:25 Thomas: All right, Andrew, it's time for the OA breakdown. Of a case that I think has been scaring a lot of people, this is something. That the Supreme Court granted cert on. The case is More v. Harper, and this is the kind of case that's really going to test whether or not states can, I don't know, steal the elections on a presidential level. So, so let's have the breakdown.

0:10:28 Andrew: Uh-huh. Yeah.

0:10:46 Andrew: You are hearing this in the context of stealing the 2024 election, which there, there going to explain that, I, I want to tell you that although that's a risk, I can't believe I'm going to say this, um, it's not the biggest risk of this decision, like. This. Decision could. Be worse than that, so if you're asking, you know, if want to play the Simpsons like, which says the good time to, uh, panic, yes, I would, can't, like, would you say there's a good time to crack open each other's skulls and drink the delicious goo inside? Yes, I wouldn't, can't, right, like, this is really, really, really bad. And I'm going to explain the argument that, or what passes for argument in Federalist society circles.

0:11:01 Thomas: Oh, wow. So there's no chance that they granted CERT to actually do a good thing? Like, hey, no, we better give a firm answer to this. Dang it.

0:11:27 Andrew: Yeah. No. There is none, because this case is an exceptionally bad procedural vehicle. Now, I will tell you, the argument is so terrible that it is possible. Right. My kind of calibration for when is the Supreme Court going to surprise us? Right. Baseline condition is it you have to shame John Roberts that gets you to four votes and then you have to find a legal issue that Brett Kavanaugh or Neil Gorsuch cares about. And so, you know for example with tribal sovereignty, we almost had that for a fleeting moment and it wasn't enough to embarrass John Roberts anymore. And so then you had, you know, Gorsuch joining the liberals. It's a super high idiotic bar. It is possible if you are looking for a sliver of hope, it is possible that this argument is so terrible that it loses either Gorsuche or Kavanaugh.

0:11:41 Thomas: I

0:12:27 Andrew: Um, Alito, Thomas, and Barrett are just, you they do not care, they no longer pretend to care, uh, and Alito has already signed on to this theory in the dumbest way possible, so, uh, so there are already three votes for it, and there likely are at least two more, but, but let's walk through it. Here is, from where the arguments, I'm going to read to you, Article One, Section Four of the Constitution of the United States, and then I'm going to ask you a simple question, and because you're not a crazy person.

Yeah, So, Thomas, noting that it says right, times, place, and manners of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. Now, do you interpret, so suppose the legislature says, Okay, uh, we're all going to vote, uh, and uh, black people can vote for years, two, from 1 a.m. to 3 a. m on Sunday, November 5, and white people can vote for three weeks from the end of October through Election Day. Would you read this clause, for, for federal offices, right, for the election to the U.S. House of Representatives and to the U. S. Senate? Would you, reading this section as saying that plaintiffs would

0:12:55 Thomas: Love simple questions.

0:13:35 Andrew: Have no cause of action to challenge that law?

0:13:38 Thomas: Like Just that one, like, little clause would be, well, it says MOOPS, so therefore there's nothing you can do about, no matter how outrageous the legislature might be, nothing anyone can do is that, that's the softball you're teeing up for me so I'm gonna say no, that's not how I read it, Andrew. Yeah,

0:13:49 Andrew: Yeah, correct. Yes, that is my that is the softball that I am placing so what you're saying is when you see "in each state by the legislature thereof", you view that as the ordinary way in which human beings have used to describe how laws get passed, and not as implicitly implying with no review by anyone, ever, for any reason, so help you God, that

0:14:06 Thomas: Forever Yeah, is there anything? Anything at all, ever, in any of the texts of our country, of our laws, of anything that you would read that way?

0:14:23 Andrew: Is an awesome question that I want you to put a pin in, okay, because that is at the core of this. OK, so we will get back. But, but yes. So, so now I've just established for, for our listeners, the common sense of the Thomas-takes-the-bar-exam approach of, you read, yeah, the rules get to be passed in the state by the legislature. That is subject to all the ordinary constraints on the state legislature that we have, because that's how language works. Right. And suppose you are a Federalist Society, but but but a Federalists Society member who has a teeny tiny particle of conscience remaining in your head. And you say, OK, but I'm concerned if this is consistent with what the framers thought. Right. When they were. So, you know, really, what would John Adams have interpreted that to mean? I can answer that for you because we

0:14:26 Thomas: I will.

0:14:46 Thomas: Right.

0:15:14 Andrew: We we shouldn't we

0:15:15 Thomas: We have him. We got him on the, all right, John Adams, Skype him in.

0:15:16 Andrew: Shouldn' t we shouldn'' we should' n't have to. But remember, we have, you non-conservative originalist theorist like Akhil Reed Amar at Yale Law School, the most prominent, you know, sort of quirky originalist who, you know, I would describe as a kind of center-left, a brilliant mind. But again, prior to the Supreme Court being taken over by fringe elements, I was opposed to his scholarship. Now it's useful because now you have to speak crazy when you are answering a cert petition, right? Right. So, OK, now we have to speak crazy. We have to know in 1789, what did guys in powdered wigs who thought that women shouldn't be able to own property, what did they think of a state legislature meant? And as it turns out, they thought the same thing we think right now. Right. Which is I'm going to read you directly from Mckay Lamar's law review article, quote, "The public meaning of state legislature was clear and well accepted.

A state legislature was an entity created and constrained by its state constitution," end of quote. Okay, so now, normal people, judicial history, the almighty framers, everybody agrees that prescribed in each state by the state legislature means, yeah, the state legislator gets to make the- Can they make any rule they want?

0:15:42 Thomas: Yeah.

0:16:29 Andrew: Of course not. Unless you subscribe to the independent state legislature doctrine, which has at least one public member, which is Samuel Alito in denying the motion in his dissent from the Supreme Court's denial of a stay in this case said, well, they specifically use the word legislature here. They don't just say state. So we have to accord that special weight because the founders wouldn't have said legislature if they had just meant the state itself. Okay. Now, if you're asking this, again, as a normal person, that argument is cited, by the way, in the cert petition only to Alito's dissent from the denial of estate because nobody before Samuel Alito has ever made that argument before.

0:17:24 Andrew: But the Supreme Court does not care. This is why this case is so significant. And I want to expand it out in this particular way. Yes, this could lead to hijacking the 2024 presidential election in a way, by the way, that the petitioners explicitly tee up because otherwise Clarence and Ginny Thomas are not that bright.

0:17:48 Andrew: And hey, this is how we steal the election in 2024. Leaving that aside, I want you to think about the role between the U.S. Supreme Court and state Supreme Courts, right? So we have the Dobbs decision. It's terrible. It's awful. One of the things that we can say is, Okay, the howler monkeys on this Supreme Court are free to say that abortion is no longer found in the First, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution, but that cannot stop a state Supreme Court from ruling that yes it does. And and even if the state constitutional language is identical, in pari materia, uh, with the U.S. Constitution, right, they can say, "Oh yeah, well-" Well, guess what? We are.

0:18:34 Andrew: And we covered this in Episode 276. The state of Kansas looked at the state's equivalent of the 14th Amendment and said, you know what? Notwithstanding whatever the Supreme Court does. And gosh, why would we think that two years from now the Supreme court is going to overrule Roe v. Wade? You know, who could possibly see that coming, Susan Collins, the state of Kansas can say a state Supreme Court interpreting the language of the state Supreme court constitution. We are sovereign and we have decided that the State Supreme Court language means that, yes, it does include protection for the right to an abortion for reproductive health freedom.

0:19:10 Thomas: We have decided we're going to interpret laws not as idiots. Weird approach, but, you know, we're Kansas. We get to do it.

0:19:12 Andrew: Right. Yes, even if, and and that can be in the text of the opinion, and basically, it is in these cases that depart from reading in party materia with federal courts, it will say in the language that we don't think that decision was well reasoned, that is a long-standing state power. Let me give you a perfect example. Suppose two different states pass an identical gun control statute, right? Maryland and and Pennsylvania, right? They're neighboring states. The Maryland statute could be worded identical to the Pennsylvania statute, and the two Supreme Courts could interpret those statutes differently, and right, be free to say, well, notwithstanding the fact that our sister state in Pennsylvania interprets it X way, we think the better reading is Y, and you could not go to the Supreme Court and say, we want to force Maryland to adopt Pennsylvania's ruling.

0:19:30 Thomas: Yeah. Yeah.

0:20:05 Thomas: You can't even be, even if you try to take like some, I don't know, sympathetic way of saying like, okay, I think it's unfair that like two people who are equal in every way, but they happen to live across this imaginary line, get the law applied differently to them. Doesn't matter.

0:20:21 Andrew: Because it's not the same law being applied differently. You could, if there were a an equal protection challenge, right, a 14th Amendment equal protection challenge, but it's two different laws, right? It doesn't matter that the two different law laws are phrased the exact same way. The the founders' intent, right, the framers' intent would be, yeah, well, if you don't like it, don't go to Pennsylvania. No one's forcing you to go to Pennsylvania. You go to to Pennsylvania, you avail yourself of Pennsylvania's laws. You go to Maryland, you avail yourself Maryland laws.

And therefore, right, with respect to the interpretation of state statutes and state constitutions, the state Supreme Court has the last word. Could you imagine the contrary, right? Something where the state Supreme Court could rule, hey, we think our state supreme, our state constitution protects the right to an abortion. And then the U.S. Supreme Court could take up that case and be like, no, Kansas, no it doesn't anymore, right?

That that truly is the level of, you know, okay, well, now it's time to start thinking about, you know, leaving the country, right? Is you are now no longer free to do the thing

0:20:25 Thomas: Yeah.

0:21:22 Andrew: That we've always said backstops. What if Trump wins in 2024? Well, you, I love our our folks who are, you in purple states, in red states, and fighting the good fight, I couldn't blame you if you, you're a woman, if you're trans, uh, in one of those jurisdictions saying, gosh, I guess I guess it's time for me to move out, but right now imagine if moving out isn't isn't a cure, if every time California passes a law, or amends their their state constitution, the Supreme Court could strike it it down.

0:21:53 Thomas: Yeah, you wouldn't even have a state constitution then. Like what would it, but

0:21:55 Andrew: Yeah, you would have it insofar as this activist Supreme Court does not want to disturb it, but you would not have it beyond that.

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0:25:34 Andrew: And if you think that I'm being hyperbolic with respect to that, now I want to tell you about the facts of the case, about what everyone agrees happened, and how that's played out. And so the question that is in front of the Supreme Court right now, And it has to do with North Carolina redistricting and gerrymandering. So November 4th, 2021, the North Carolina legislature enacted new redistricting plans for the state legislature in Congress. Right. Days later, there was a case filed consistent with North Carolina law, with a law passed by the legislature. That is North Carolina General Statute 1-267.1a, which is actions challenging the validity of any act that apportions or redistricts state legislative or congressional districts to be filed in the Superior Court of Wake County and to be heard and determined by a three-judge panel.

0:26:30 Andrew: So that's what the law says. Says, if you don't like the redistricting, you go to this court and you get to, you go before a special three judge panel. And that's how you file your complaint that says this redistricting violates the Constitution, the state Constitution. So it happened. A three judge panel was appointed. There was a week long trial. And that three judge panel, bipartisan, by the way, designated by the chief justice, Republican, of the North Carolina Supreme Court, and two Republicans, one Democrat on that three judge panel, okay, so not, uh, not hackery, you know, not democratic hackery at least, right, found that the maps were, quote, "the product of intentional pro-Republican partisan redistricting," that they were extreme partisan outliers, that the congressional map was more advantageous to Republicans. And we actually went through this case on on OA.

0:27:18 Andrew: If the facts are seeming familiar than 99.999% of neutral maps.

0:27:24 Thomas: In fairness, I mean, there's, there's Not just one Time That Republican look at gerrymander like this, yeah.

0:27:25 Andrew: Yeah. This happens. A Lot, yeah. Right.

0:27:29 Thomas: Face

0:27:30 Andrew: And so the maps the panel found were systematically designed to prevent Democrats from gaining a fair or majority of seats even if their candidates won a significant majority of actual votes, but that that three judge panel said there was not a remedy that they could craft. So that got appealed to intermediate appellate court and taken up by the state Supreme Court. And the state Supreme Court of North Carolina said, no, we agree with the factual findings. This is ridiculous, extremely gerrymandered. And we think we do have relief, belief, and in particular, we think that the decision, that we've covered here at great length, the 2021 U.S. Supreme Court decision in Rucho versus Common Cause, which basically said, yeah, don't come to us with your problems, right, you go, you solve that through the political process, go to your states, we're out on this, right? That's what the Supreme Court said in Rujo. Don't bring partisan gerrymandering claims to the United States, uh, don't file them in federal court, we're not going, going to listen to them.

0:28:25 Andrew: It's not a justiciable controversy. Well, the reverse part of that is provisions, quote, quoting from Rucho, which was then quoted by the North Carolina Supreme Court, "provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply." And then the court went on to hold which particular provisions of the North Carolina Constitution and which statutes did apply to thus render the gerrymandering claim justiciable under North Carolina law and the North Carolina Constitution.

And it issued an order on February 4th, enjoined the use of the gerrymandered map, and then followed up with a full written opinion February 14th, 2022. So this is a uniquely state constitutional right, it is found in the language of the statutes and the Constitution of the state of North Carolina. The court, in particular the court, started with, uh, the state constitution's free elections clause, which was added to the Constitution in 1969. Right, so, again, no question about like, what did Plato or Copernicus or John Locke think about this, right? 1969. We can dig those people up. Some of them are still alive. This clause, quote, "has no analog in the federal constitution.

It is one of the provisions that makes the state constitution more detailed and specific in the protection of the rights of its citizens." And it was derived from a clause in the English Bill of Rights of 1689. I know we thought we were going to keep the 17th century out of it, but nevertheless, which was adopted in response to the king's efforts to manipulate parliamentary elections by diluting the vote to attain electoral advantage. The court concluded that this clause protects the people's right to fair and equal representation in the governance of their affairs. So should be the end of it.

0:30:12 Andrew: The North Carolina Supreme Court says North Carolina law, as understood and administered and interpreted by us, the Supreme Court of North Carolina, yep, Says we have a claim for partisan gerrymandering, this is partisan gerymandering, go back and fix this. So remanded back down to the three judge panel with instructions for the legislature to come up with something different. Well, the legislature came up with some different stuff for the state races that that met, met with bipartisan approval. But when it came to the federal congressional districts, did not want to give up their advantage. And so they came up with another gerrymandered map that was designed to keep North Carolina red despite fact that Democrats could win at a statewide level. And that went back to the courts. And the trial court looked at that and was like, come on, guys, you didn't even try, like, the state Supreme Court said your last effort was gerrymandered and you, like, you know, change these six people, knock it off.

0:30:11 Thomas: Closed, it's In the name of

0:31:11 Andrew: And the legislature was like, yeah, no, well, we stand by our map, right? And so the trial court did a thing that, that again, this is going to be misconstrued by the Supreme Court, but the trial court did a thing that was the most deferential to the legislature. It said, I am not going to accept, we are not going to accept the counter maps proposed by the plaintiffs here because they're beginning from a different starting point. We're going to start with the map that the legislature provided. We're gonna do our very best to honor their intent, but we're gonna have that be modified by our court-appointed neutral experts to comply with the Supreme Court's decision to not gerrymander for partisan advantage. So that's what they did.

0:31:57 Andrew: They worked with these special masters and the experts, and they drew up an interim plan for the 2022 congressional elections. All of this explicitly permitted by North Carolina law. Again, more deferential to the legislature than what the plaintiffs wanted, right, which was, look, judge, judges, you gave these guys multiple bites at the apple. They've thumbed their nose at the Supreme Court, the state Supreme Court. They're clearly not going to draw a fair district. Let us draw the districts. And following North Carolina law, the the 2-1 Republican panel was like, no, no. We're not going let you guys draw the district. We're going to still stick with the biased Republican North Carolina legislature, But we're going to fix it as best as we can by relying on experts. And that was then appealed back up to the North Carolina Supreme Court.

0:32:43 Andrew: North Carolina's Supreme Court signed off on that. That is the plan that will be used for this 2022 election. OK, so a, a much more fair plan and opportunity, again, in an environment that's probably pretty bad for Democrats. At least the thumb is off the scale for two congressional districts in, in North Carolina. So that's a good thing. That is what led to the filing of this cert petition. The argument that is being made is the state Supreme Court had no power to intervene with what the legislature created because of that idiotic reading that no one could possibly have of Article One, Section Four of the, the Constitution, um, and, if you think I'm being hyperbolic here, I'm going to read to you from the memorandum filed by the National Republican Redistricting Trust. Okay, so this is Republicans in charge of redistricting telling you what they would like to do in connection with the cert petition for this case. Quote, "State and federal judicial bodies occasionally take liberties and move from applying election regulations to modifying them or creating new ones.

Doing so, however, amounts to unconstitutional usurpation of the legislative power from the legislatures. Article One, Section Four exists to stop those encroachments in their tracks." Now, never minding, right, that the judicial usurpations here from the legislature are where they have specifically been designated by the legislature, that, you know, these are subsequent laws they are arguing.

0:34:20 Andrew: And again, this is how this plays out. They are arguing that the U.S. Supreme Court should come in and tell the North Carolina Supreme Court that it may not issue a binding opinion on North Carolina law and the North Carolina Constitution that applies to the North Carolina legislature. That is a power grab on a level that again, I cannot tell you how radically that upsets the balance of federalism in this country. It's Right. Why I went through all of the stuff about who gets to appeal, what to wear and when you stop. It is something that every first year law student learns. And if you're thinking, OK, well, you know, maybe it's just going to be in redistricting cases.

0:35:08 Andrew: The example that Republicans give, or in fact, you haven't seen my notes, if you were the most evil, pernicious person, what example would you accidentally use in your cert petition, or maybe intentionally use, right, to tell your buddies on the Supreme Court who now no longer give a shit about the law? Uh, oh, hey, by the way, this is how to get the right outcome.

0:35:36 Andrew: Good, good, good, but close, but no. How about the 2020 election? So

0:35:35 Thomas: The Civil Rights Act Okay, mine more evil or less evil, I'm actually, I want to calibrate my evil level for these things, I might, did I go too far evil, or not evil enough?

0:35:51 Andrew: You went parallel evil. I don't know, here's Here's what they said in the, say, know, the saying, the quiet part loud. Here's what they said. This, right, this unfair encroachment was seen when concerns about the covet 19 pandemic affected the 2020 election. For example, in Republican Party versus De Graffenried, the Pennsylvania legislature established an unambiguous deadline for receiving mail-in ballots, uh, and that quotation is cited to Clarence Thomas dissent from a denial of cert, because, again, it's not true. All

0:35:53 Thomas: Okay A Dissent from a denial of cert is that even, even anything? What is, what is the status of that? Dicta? Is is it it more or less law than a tweet?

0:36:29 Andrew: Yeah. Yeah. Doesn't, it, It's, it is an indication of what Clarence Thomas thinks. That's it, it, and is exactly to answer your question, and, and not be glib about it, it is, it has exactly as much legal force as a Clarence Thomas tweet if Clarence Thomas were to tweet.

0:36:42 Thomas: Okay. Okay. Gotcha.

0:36:52 Andrew: Yeah. Yeah. So, quote, Moore Thomas dissatisfied, the Pennsylvania Supreme Court extended the deadline by three days, end of quote. Now, and again, it is the citation there, which again means Clarence Thomas's opinion and no one else's. Now, the reality is, as with all of these, that that these were cases in which executive branch agencies were delegated the authority to craft reasonable regulations. Legislations and or there were governmental uh there were pronouncements by the governor in the context of a goddamn pandemic as to how to properly implement rules when the baseline conditions involve you know people standing a hell of a lot closer than six feet from one another and right so yeah uh did they craft specific rule of course they did because we were in

0:36:53 Thomas: Is

0:37:39 Andrew: The middle of a pandemic, and they were expressly delegated that ability to do so by the legislature and power of the governor to enact reasonable restrictions during a pandemic to protect the general health, safety, and welfare of her citizens. So that, by the way, that's what the Supreme Court of Pennsylvania actually said, right? Not what Clarence Thomas thought they said. Back to the cert petition. "Petition in so doing, the Pennsylvania Supreme Court usurped legislative power away from the Pennsylvania legislature and rewrote the state's election rules, see also Republican Party versus Bukvar." By the way, that's a kraken case. 141 Supreme Court one, comma, two, Alito concurring.

0:38:21 Andrew: A right similar solution occurred in Wisconsin. Where a federal court election law in Wisconsin and extended the deadline to return absentee ballots. And again, the citation there is to a Neil Gorsuch concurrence in the denial of the application to vacate the stay. Day, so, uh, yeah, this is again, as you read through this cert petition, with the exception of the argument I'm going to piece together for you, uh, all of these citations are citations to, and generally not even opinions from the past five years, um, dissents, concurrences, things that the howleriest of howler monkeys have written on their most howling days, right?

0:38:21 Thomas: Is There a Bit of a Parallel to the whole, "Hey, since you paused the Electoral Count Act while there was a, you know, coup, a riot, a violent thing happening, that means that it doesn't actually matter and you don't have to go through the thing." Is it sort of a parallel there to, like, well, because these people made slight modifications to how voting worked when there's a pandemic, therefore, that, that's some massive violation of that power.

0:39:03 Andrew: I, I think, I, the logic is the same, because, or the logic is similar. Let me not, let me not go too far out on the bridge. I think you are perceptive in finding a similar logic that is a rough cousin of our sovereign citizen friends, right? The, like, no, the important thing is exactly what it says in the text when interpreted in this. So that, you know, if it says that deliberation is to last only two hours, I'm sorry, that means deliberation is to last only 2 hours. And if you've got a 6-hour gap in which you've been escorted to a statehouse, well, too bad. That just means the law doesn't apply anymore. That is nonsense to a thinking person. But I think to a sovereign citizen, they're like, "Well, yeah, of course, that makes total sense."

0:40:19 Andrew: And I think that you are sort of exposing that folks who, who are crafting this are not beginning from the same ordinary principles of jurisprudence as, you know, a fairly well-educated comedian who's been answering bar questions for five years would do. So yeah, what they want to invalidate, right?

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0:42:05 Andrew: Here's how this could play out in 2024. The regulations say say the Pennsylvania Board of Elections shall reasonably open, know, shall open any mail-in ballot that reasonably bears an indication that was intended by the voter, right? They then promulgate the Pennsylvania board of elections says, okay, what that means is it does not have to have a signature, but so long as it has any marking on the back, we're going to count that ballot. They then go to the Supreme Court. The Supreme Court says, yep, that's a totally reasonable regulation.

0:42:37 Thomas: Which Supreme Court, the state Supreme, gotcha.

0:42:38 Andrew: The state Supreme Court, good

0:42:39 Thomas: Yep, well,

0:42:40 Andrew: To ask, goes all way up the Pennsylvania State Supreme Court, which is, yes, that is a reasonable application, rulemaking of the authority that was delegated to you, the Pennsylvania State Board of Electors. And that means we're going, going to count these votes, and that means, you know, Joe Biden wins the state of Pennsylvania, that they want for the U.S. Supreme Court to be able to invalidate that decision, declare that the true winner in Pennsylvania was Donald Trump, send the case back to the Pennsylvanian courts with instructions to proceed consistent with that finding. And, and that's why people are terrified, that they should be, they have a right to be terrified. But again, there is so much more than just election decisions that are, that are on the line. And I know, like, that's a horrible situation in and of itself.

0:43:32 Thomas: Just, so, I, I understand, was this an actual ask that this they're making in this case, or was this an example? Okay, because you set it up of like, oh, this is something they cited as an example. Are they actually really asking to change the 2020 election? Okay.

0:43:47 Andrew: Are not asking to change the 2020 election. They are asking to set up conditions that would make it possible for this Supreme Court to, after the fact, decide the 2024 election by just having enough Supreme Court decisions, even if they lose, even even if they crack and lose, right, to tee up because that's what they're citing.

0:44:10 Thomas: That Is How have we not coined that before? Crack and lose, that's it, that's what Alex Jones is doing in his trial right now. That's okay good good, good, new, uh, word there and

0:44:16 Andrew: Yeah, there you go. Added to the lexicon. Yeah. Here's how the question is presented. The question is represented, whether a state's judicial branch, that is the state Supreme Court, may nullify the regulations governing the manner of holding elections for senators and representatives prescribed by the legislature thereof, quoting Article one, Section four of the Constitution, and replace them with regulations of the state court's own devising, based, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a fair or free election. Now, admittedly, that's an incredibly stupidly written question.

One of the things that the Supreme Court can and will do is rewrite the question presented, but that's the one they granted cert on, right, that's one that four members of this court looked at and were like, "Yep, totally want to answer that question." Um, so that's the ask, the ask is constrain the power of state supreme courts to review actions by the state legislature, which is outrageous, right, that's the function of a state supreme court. And I guess where I would like to sort of end, right, is, I, I, want to explain that not only is this a radical departure, not only is this horrible and terrible in every way, but that the legal theory is, even for this supreme court,

0:45:44 Thomas: That is saying something.

0:45:46 Andrew: Yeah, and this will go back to the question that you raised, um, so, I, I told you to put a pin in it, uh, we will pull that pin out in about 60 seconds. Um, the legal theory and, and God help me on this, um, stems from dicta from the Rehnquist concurrence in Bush versus Gore. Now, you may recall that we devoted, voted, episodes one to four of this podcast to the fact that Bush v. Gore essentially didn't count and was the Supreme Court admitting that It didn't count that Bush v. Gore is virtually never cited, that that has changed since 2016 because the most extreme conservatives now believe that they can make hay out of a particular clause in the beginning of part two of the concurrence of an unsigned opinion that every, okay, let me read you what Justice Rehnquist said, and again, I could ask the same question I asked at the beginning of the segment.

So that begins, "The individual citizen has no federal constitutional right to vote for electors for President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College, Article 2, Section 1." That's true, that statement is correct, however, what comes next is what comes next.

0:45:53 Thomas: Oh. Yeah. Not

0:47:09 Andrew: This is the source for the statement, "In McPherson versus Blacker, 1892, that the state legislature's power to select the manner for appointing electors is plenary. It may, if it so chooses, select the electors itself, which was indeed the manner used by state legislatures in several states for many years after the framing of our Constitution, see id." That's that Blacker decision from 1892, at 28 to 33. And now you remember what your pin was, okay.

0:47:39 Thomas: Is there any other places where the law is written this, where you interpret things this way, where, yeah. Hold

0:47:45 Andrew: And That is the word plenary. Plenary means without limitation, and and I will, will tell you as a lawyer, I I So

0:47:52 Thomas: On Though Plenary means without limitation, as in no court, not a single other court in the Earth can challenge what you're doing.

0:48:02 Andrew: So So seized on, I struggled with this for a little bit until I came up with the right analogy. Plenary Is used in legal writing the same way that literally is used in public writing, right? It's mostly analogistically, right, like if I say I am literally peeing My pants with rage.

0:48:02 Thomas: Oh Can't Wait to hear it.

0:48:22 Andrew: Right, like Yeah I mean, I'm not, I mean, yeah, you should, I'm so mad, right, like, but I'm not, yeah.

0:48:21 Thomas: Yeah It's Like the Opposite, now, yeah. Literally Means not literally fucking.

0:48:30 Andrew: Yeah. That's right, and and and courts have sort of struggled with that, you know, with cases in which people have said, yeah, I literally want to murder Thomas Smith, well, you know, that means I'm really angry with you.

Similarly, right, like when, when you think of legislature meets for a plenary session, well, right, a plenary session means they can consider more than just the bill that they just passed, right, like, you know, when they're in closed session, are debating only a specific proposition, when you're in a plenary section, all the business is on the table, but that doesn't mean there's no limitation on what they can do, right, like it's, it means, yeah, it's kind of like that but not, you know, and every example that I looked for in legal writing, um, of of the use of plenary power is consistent with that kind Of, like, well, we mean, but we don't mean, we don't mean, we don't mean nothing, right, we don't mean zero constraints, the only thing I can find in which there is actual plenary power, right, that is a thing gets done and there's not a goddamn thing you can do about it, is the

0:49:38 Andrew: Well This Supreme Court, but like even the Supreme Court, like there are things that you could do about their decisions, right, you can go to your state Supreme Court, for now, you can go to your state Supreme Court and, you know, pass a state, right, like it's like nothing is plenary except the presidential pardon power, right, the Presidential partner, as far as I can, can tell, is is plenary or damn near plenary, right, like, that if it's a valid exercise, but you still have to go to court to determine if it's a valid exercise, there's nothing where you would say, "Nope, I'm sorry, the state legislature said it, therefore that's it," therefore plenary means there's no further inquiry, no, right, back to the court, and to prove that that reading is is not historical, I went back to McPherson versus Blacker. MacPherson verses Blacker, that 1892 case, is actually the state legislature appointing electors versus holding statewide elections. So here's that section talking about whether the power is plenary or not.

0:49:37 Thomas: Supreme Court Oh Right, yeah.

0:50:43 Andrew: And it says, "This power, meaning to decide presidential electors, is conferred upon the legislatures of the state by the Constitution and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States." States, whatever provisions may be made by statute or by the state constitution to choose electors for the people, there is no doubt the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.

Now that does not say you have zero recourse, right, that does Not say that the state laws allowing popular election of your senators are all of a sudden void, that that's just not remotely the case, but now we have the following language from this review, again, remember this is the Supreme Court, 1892, "From this review, in which we have been assisted by the laborious research of counsel and which might, might have been greatly expanded, it is seen that from the formation of the government until now, the practical construction of the clause has conceded plenary power to the state legislatures in the matter of appointment of electors." But I'm gonna, I'm not just gonna dust my hands and say, okay, case closed, for the Federalist Society, I'm actually going to read the next two sentences.

0:51:22 Thomas: Yeah

0:52:09 Andrew: "Even in the heated controversy of 1876, you know that, uh, the electoral vote of Colorado cast by electors chosen by the legislature passed unchallenged, and our attention has not been drawn to any previous attempt to submit to the courts the determination of the constitution," the determination of the constitutionality of state action, and here's the critical sentence, "In short, the appointment and mode of appointment of electors belong exclusively to the states under the Constitution of the United States." End of quote. So belonging to the states is what what Akhil Amar said at our very bit, right, that is very, very different than what is being argued now, which is belonging only to the state legislature, with no provision for the state legislator or the state Supreme Court to impose any restrictions on it.

0:52:55 Andrew: Nobody has ever accepted that argument. And again, if we lived in a sane universe, you would just say, oh, Andrew, is there binding Supreme Court precedent from 90 years ago to the contrary? Of course, there's binding Supreme Court precedent from 90 years ago to the express contrary. That's case called Smiley versus Holm. It is a 1932 case involving a Minnesota law that allowed the governor to veto redistricting efforts. So again, if the independent state legislature theory is correct, that has to be unconstitutional, right? Because how can you give the governor the power to veto something That you can never take away from the state legislature? And guess what, the Supreme Court said that's totally fine, right, quote, "It clearly follows that there is nothing in Article one, Section four, which precludes a state from providing that legislative action in districting the state for congressional elections shall be subject to the veto power of the government, as in other cases of the exercise of the lawmaking power." End of quote.

I don't see how you could get any more clear than that, you use the ordinary legislative process, and what else is a part of the ordinary legislative process, that people get to appeal that ordinary legislative progress to the state Supreme Court, which is the last goddamn word, not the federal Supreme Court, not the Federalist Society, your state Supreme, and that's what they want to take away.

0:53:27 Thomas: Yeah Oh

0:54:27 Andrew: And by the way, I would point out that you would under this doctrine still get state Supreme Court review of your state offices, just not for federal offices, prophecies. So it is just mind-boggling, indefensible, clearly outcome driven, uh, and so if if you're, if you've been, you know, sort of outraged about this by, like, memes that you've seen, it's way worse than what you think, so there you go, yeah.

0:55:02 Andrew: I'm sorry, this Is there's no Silver Lining There's know this there's No that

0:54:40 Thomas: Boy Cool No That's Wow Hey It's Almost Like we need to elect 50 senators who want to get rid filibuster of the and expand the court, and that's the only thing we can really do, and

0:55:06 Andrew: Yeah That would be real great right about now.

0:55:14 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:55:20 Thomas: Now it's time for T3BE, I guess, once again, you know, trying to answer these questions as though the law matters, we have to just pretend that the last year of jurisprudence didn't happen in order to answer these.

0:55:33 Andrew: So, Thomas, this was a civil battery case that actually is potentially relevant in which the plaintiff was suing the defendant after the defendant allegedly tripped while she was walking down the stairs. Plaintiff calls a witness to testify on her behalf. The witness corroborates the plaintive story. On cross examination counsel for the defendant asks, isn't it true you cheated on your CPA exam by attempting to look at your notes during the test. Plaintiff's counsel objects. How should the court rule on the the objection? You said, after thinking about this a lot, you said C, it should be overruled because the question regards the credibility of the witness, differentiating that, uh, I think you pretty clearly stated, from offering character evidence. And Thomas, 100% correct. There's some good news in this episode whatsoever. This is a tough question, right?

0:55:51 Thomas: Yes. Wow. I really battled on this one. That was a lot of deliberation.

0:56:22 Andrew: Yeah, Because there is a baseline rule that everyone is familiar with, that every lawyer is familiar with, Rule 404. This is the carjacker Willy rule, right? This is evidence of a person's character or character trait is not admissible to prove that on a particular occasion, that person acted in accordance with the character or trait. So, right, I can't show you're a carjcker Willy to prove that you acted in accordance with a trait of being a carjacker. But as, as you correctly deciphered here, you ask the question, why are they trying to introduce this, this evidence? They're not trying to introduced evidence that, uh, this witness is a serial cheater on exams.

0:56:33 Thomas: Yep. Yeah.

0:57:04 Thomas: But they suck yeah Right.

0:57:06 Andrew: Right, they're trying to say this is not the kind of witness that you should believe. And not the of witness is an attack on the credibility of a witness, which is always valid. It, so despite the fact that I think the question is, is worded in such a way to get your sympathies and your kind of common sense first take, that, you know, this seems, this seems really far-fetched, you're gonna introduce, like, didn't you cheat on this test. And in order, you absolutely can ask the question. And if you want to think about it a step further, the fact that that would be such a dumb question to ask, uh, is, I think, that the reason the rule is the way it is, right? Because

0:57:11 Thomas: Yeah. Right. Right. You let the jury

0:57:49 Andrew: Because the jury is going to roll their eyes and be like, really, the worst that you could say about that was that, you know, she, oh yeah, didn't you once drive 67 in a 60, yeah, all right, fine, right, and if the worst thing they could do is, you know, you, you admit to cheating on a a test from 20 years ago, uh, then, you know, I would think I would certainly include that in my closing statement of

0:57:50 Thomas: Evaluate if that's a dumb question. Yeah. Yeah that's pathetic. I mean, that would still apply to lots of other things that wouldn't be allowed, loud, though, that same logic, like, because, you aren't allowed, did I remember correctly that you aren't allowed to just attack the character of a defendant unless they try to put forth the positive? Was that, was I remembering that thing correct

0:58:11 Andrew: Yeah, that is that is absolutely correct for character evidence, yes. So

0:58:25 Thomas: Right? Okay, but if I said but Andrew, I'm only saying that, uh, the they cheated on their CPA exam and that's pathetic and so the jury could evaluate that, it'd be like, no, sorry, I still can't do that because it's not allowed. Well, I nailed it, it, that's amazing. I'm so happy about that. I was really worried, I just couldn't quite, yeah, yeah, wow, thank

0:58:39 Andrew: Yep, that is exactly right. It's a hard question so I, uh, I'm very proud of you and

0:58:50 Thomas: You, I feel great. All right, well, let's celebrate with also a winner that can be just as happy as I am right now. Who's our big winner for this week's T3B and

0:58:59 Andrew: Well, Thomas, I can tell you a lot of people got this one wrong. A lot of people wanted to guess B and did, in fact, guess B. But somebody who did not get it wrong is Mad Political Scientist on Twitter, who writes, "It's C, we're impeaching the witness. If Alex Jones is the only witness, I guess you're basically in international waters." Well, congratulations on getting it right, on having a nice timely Alex Jones dig. Everyone, let's give the Mad Political Scientist to follow, that is at N Jordan 79, at N-J-O-R-D-A-N-7-9 on Twitter, and congratulations, Mad Political Scientist, on being this week's winner.

0:59:41 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:59:49 Thomas: Now it's time to thank our hall of famers, our all-time greats on patreon.com/law, uh, the, these, these are the big dogs. And we're in the final. Oh, that means you just heard the music.

1:00:08 Thomas: We're in The Final, and I think it was Quartiles this month, wasn't it? The Final Quartile. We're jamming out to that. All right, why don't you start us off?

1:00:07 Andrew: I think that's right, yeah, sure, big thank you to, now that the top patron status is not as sacrosanct as was previously claimed, consider one more minor violation and thank me, that is, maybe the best patron name we've ever had, congratulations, uh, the Patreon mobile app is unbelievably bad, seriously, they must be taking the piss, I'm, I'm sorry, Return of the Karaoke Legend, now playing at your local sweaty dive bar, I'm there, Jonathan, seriously, the live show in Minneapolis, Abseon Milo Mead song wishes all meteors a happy crash into justice, Thomas's stupid little RV, perfectly legal for all of us to say, Medicon 7, join your local labor union, together we bargain, alone we beg, Sergeant Javier Squeda is still awaiting trial and retaliation for whistleblowing the death of a subject in police custody, the most important vote a man can cast is the next one, Word Origins.org has a new book, From Barflies to Bitcoin, How Words Map Our Modern Era, available on Amazon, this user was

1:00:26 Thomas: That is really good. Yeah, that's a very good one.

1:01:15 Andrew: Traded for a patron to be named later, two fabulous bonus episodes, false, anonymous, give to modestneeds.org, then visit, deepfakestop.com, I'm motioning lemonade Derrick, not that Chris Wallace, big easy blasphemy dude, Ronda the Dork.com, Thomas, take it away.

1:01:21 Thomas: Yeah. Thank Thank you to Too Much Levin, the All Orthodox Jewish BGS Tribute Band, I a string of unpronounceable characters, Malcolm the Dragon, the precious variant, Maleka Chandler, tricycular manslaughter, Liz, Puffy Coats Are Violence, Soggy W, Pants, Chris Waltrip, Dejury, Belly at Patchy, Set Last, Baby, Heather L, Matthew Vernon, Ian and Allie, Danny Rosari, Eli Bosnick gets to change his patron name because Patreon gave up on his blog too, Teresa Chan, Teresa Gomez, Adam Costa, David in Brooklyn, Sam Denow, Mitchell Ice Cube or Ice Tea, I'm not sure, Michael Ropps, I agree with that 100%, and sitting in the Conrad Michaels chair for excellence in patronage, top hall of famer, all-time, Sam Buck.

1:01:42 Andrew: I we love you sam

1:02:25 Thomas: That's our show, thanks so much for listening, uh, maybe there's still just enough time to catch us over on our live q a on YouTube, YouTube, that's Tuesday the 2nd at 5 p.m. Pacific, 8 p.m. Eastern. Hop on over there right now. If not, we'll see you for a Rapid Response Friday.

1:02:41 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.

1:03:15 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.