Election News Is Great! Election LAW News Is... Mixed.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:01 Thomas: Vote does matter. Trying to make it not matter a couple elections, and your vote might not matter. So, use your last few votes wisely.

0:00:17 Jenessa: 34 point swing is really hard to explain. It's just like a Republican stayed home and a Democrat showed up. You know, that's big.

0:00:28 Thomas: Hello and welcome to Opening Arguments. This is episode 1236. I'm Thomas. That over there is Jenessa. How are you doing?

0:00:35 Jenessa: Pretty good. I'm excited to talk about some positive news today. So that'll be nice.

0:00:41 Thomas: Yeah, I mean, when you said we were talking about election news, I definitely, or, you know, voting news, I definitely wasn't sure it was going to be like a positive one. That's encouraging.

0:00:51 Jenessa: Yeah, there's been, you know, definitely some things that are not great that are going to require a fight. But there's also some good laws getting passed. There are definitely some good election results coming out um court cases that are going well so yeah um optimistic yes yeah yeah

0:01:13 Thomas: This is your bread and butter. So glad to be talking about this.

0:01:17 Jenessa: I've been working in election law for three years now so this is um pretty comfortable for me

0:01:22 Thomas: Awesome. Well, Well, I'm excited to get to the potentially good news, so I guess we should get to it. Now, you said that pretty much you have infinite stuff, and we're just going to see how much we can get through and save the rest for later. So we'll see how that goes, I guess.

0:01:37 Jenessa: Yeah elections never stop happening so So.

0:01:41 Thomas: Yeah. All right. Well, we'll take our first break, and please support the show, patreon.com/law. You can get the lot of movies out now. That was a lot of fun. Kim Kardashian's insane new show. And it's not just Kim Kardashian. That's underselling it the actors that are in that it has like an all -star cast seriously and it is terrible it is so bad oh it's but it's bad in a fun way like it's just insanity you got it you gotta listen it's so much fun that is up as we speak and uh avoid the ads get all the goodies patreon.com/law all right after this break we'll dig into election news okay where's our our first stop on election update on the election updates here wow

0:02:27 Jenessa: Unequivocally good news is how have been going generally. And I've got a specific one for you recently. There's a Texas state Senate seat that recently went up for a special election. That seat has been held by a Republican since 1992 when the district was created. And the times when anybody has even bothered to contest it the gap has been 10 to 30 points towards Republicans in 2022 the gap was plus 20 towards Republicans the gap this time was plus 14 for the Democrat a 34 point swing this

0:03:11 Thomas: Wait this is for sure the same I thought they did redistricting this is the same old district though oh

0:03:18 Jenessa: Is for state senate seats the redistricting was the a federal house yeah so

0:03:20 Thomas: Those are different man wait that oh wow I didn't think about that right

0:03:28 Jenessa: Yeah so for your state legislature you'll usually have the same like bicameral you know a senate and assembly or something like that and they will have senate districts which are generally bigger than assembly districts and those are not the same districts as your federal house districts that's why you end up with like all these different people on your ballots and you're in like 15 different numbered districts that's what's going on there um

0:03:56 Thomas: Good point okay so that's quite a swing.

0:03:59 Jenessa: Um, not a weird one-off this is representative of what happened in the 2025 general election we saw this happening um red seats purple seats blue seats so it's It's not just like Democrats getting really excited. It's Republican areas swinging. It's, you know, it can be hard to tell sometimes how much that is people changing their mind, people staying home, whatever. But like in the 2025 general, we had really high turnout. So I think we're actually, this is representing people changing their mind.

0:04:35 Jenessa: A 34 point swing is really hard to explain. It's just like a Republican stayed home and a Democrat showed up. You know, that's big. And it's very similar to when I went through all the Virginia state seats in November 2025. It was similar gaps. So, of what's going on, run everywhere.

0:05:00 Thomas: I was just saying that to Matt. Yeah, need to run everywhere. Yeah. That's what Newt Gingrich did to us back in the 90s. We need to do it now and we need to be ready and willing to wield actual power by running everywhere. I really hope we do do this. I hope Democrats are up to the challenge.

0:05:22 Jenessa: Yeah. You don't need plus 14 for the Democrat to win. You need 50% plus one vote. Like, it out. Give it a shot. If there was ever a year to say, I want to try, this is the year to get out there. So, very encouraging. Just one more to put on the list of how well elections have been going. Opinion is swinging. We are winning that battle of public opinion. So yeah

0:05:53 Thomas: There have been a number of these too where it really seems to show that trend. Get to the midterms, I worry about, you know, who knows, attention fading. I mean, if Trump's able to convince people he's drawn down ice a little bit. Maybe that, that, uh, that could temper it a little bit. He hasn't so far. So, um, he hasn't actually drawn down ice, but he's pretended to, I think. But we'll see it. This is a really good trend and it's, it's what has to happen. Just absolutely has to happen.

0:06:21 Jenessa: And been the trend since November of 2024 so anything it's gotten stronger over the course of like a year and a half so only getting better and just gotta gotta make it less than a year to keep that energy up so

0:06:40 Thomas: And, and, you know, that isn't going to do like a ton, but it makes a huge difference. It will make a huge difference if we could get, yeah, if we can get the Senate to that'd be incredible but

0:06:46 Jenessa: Does Yes. Would be incredible if the House is not Republican. The right now the House sends bills to the Senate and we have to keep playing this game. Will they won't they about the filibuster? That would just be over. We're with that conversation. Conversation. Terrible, terrible bills are not going to leave the House. And who gives a shit what the Senate is up to? It's just, yeah, nothing will happen and whatever. We'll get, you know, budget fights will always be budget fights. But like everything else, yeah. I'm not going to worry about, for example, the SAVE Act, which we definitely have to talk about today, The House alone. Huge to do that. Also sends a message. That's a big deal also when you get uh new base going like people don't usually just run for president as their first thing that they do in politics they start as like your town council and work their way up so every one of these elections really really matters for the long game uh holding out hope for that to uh stick around I I'm very hopeful about that um redistricting we got pretty recently a ruling

0:07:58 Thomas: Can I complain about the effing the headlines where it's like supreme court paves the way for california redistricting and it's a minor thing it's not them paving the way they they just didn't do a really illegal thing You know, like they didn't make a really bad decision.

0:08:17 Jenessa: They out of the way yeah

0:08:18 Thomas: Yeah, exactly. And it's like that language is just infuriating to me because it's, like, enabling this idea that they had anything the F to say about that. They had nothing to say. There's no reason we voted on it. We voted. This wasn't. They make those false comparisons to the Texas thing that this is the citizens voted on. Like this is actually democracy.

0:08:40 Jenessa: Wanted to say we finally agree that partisan gerrymandering is wrong Oh, I will take it. Let me bring 400 lawsuits before November 2026 and redistrict every single state. They're not going to do that, like, get out of my way. This is Tangipa v. Newsom. I don't know if I'm saying that right. Right. Was the lawsuit to claim that that was racial gerrymandering.

0:09:07 Thomas: Racial. Yeah, which is the only claim remaining. It's funny, but I think that's just because that's the only claim remaining because the Supreme Court ruined it. Right.

0:09:15 Jenessa: Pretty much.

0:09:16 Thomas: There's no other real kind of gerrymander that they'll even recognize as anything. Anything well

0:09:20 Jenessa: If they wanted to complain about like California law around nonpartisan stuff, like

0:09:27 Thomas: I don't actually think that they can just dish that I think that that would end at the california court level right yeah

0:09:33 Jenessa: Correct. Exactly. It would have had to stay in California. So to try to get the federal court to do something. The extreme irony here is the opposing this tried to argue at the Supreme Court that is racial gerrymandering because it was obviously trying to offset perceived racial gerymandering in Texas. But Supreme Court just failed to stay the map in Texas because they said it's not obviously racial gerrymandering in Texas. So,

0:10:03 Thomas: Now they're wrong about that but but still that's that's kind of funny it's they are trying to have it every single which way right

0:10:15 Jenessa: This is the same nine people you're talking to a couple of months later. Like, at some point, this is not going to work out. So that was Abbott v. League of United Latin American Citizens. That was the Texas case where the circuit court said this is a racial gerrymander in Texas. And the Supreme Court, we haven't had the argument on the merits yet, but they said, for now, Texas, you can have your map. Map Alito wrote a concurrence to that emergency docket which is a little weird saying it's obviously not a racial gerrymander it's obviously just partisan gerrymandering whatever um

0:10:56 Thomas: He said so

0:10:57 Jenessa: Yeah there is a logic to why they had to decide this like now -ish um know it feels weird like November is so far away why do we have to pick the map um primaries are coming up and And the deadline to have candidate filing for the primary in Texas, it's come and gone. So the candidate filing deadline for primaries in Texas was December 8th because the primaries March 3rd. Texas must just be nonstop in election season. Like, God bless. What a mess. The lawsuit was filed November 21st. And on December 4th, the Supreme Court said, go ahead and keep the maps you just voted on. So they had four days for the candidates to then say, OK, this is the district I'm going to run in. Because it was important to figure out before December 8th, what are the maps going to be? Deal in California. The primary will be June 2nd. The certified list of candidates is created March 26th. So we does make sense that we had this emergency docket going on sooner rather than later. Um where we're at is the supreme court is just taking a very hands -off approach if states are going to gerrymander the just going to let you do it at least in the short term there they don't appear to be ready to emergency stay a gerrymandering um of the east coast states is in the middle of trying to also obviously partisan gerrymander. Will definitely sue and try to stop it. And I doubt this Supreme Court is going to stop anybody, Democrat or Republican, from doing it. So but this is the world we're living in. So news for California.

0:11:58 Thomas: No argument there yeah that needed to happen uh no been true for over a decade that the right thing to do for Democrats was gerrymander. It's been true for, we took, because the only way it will end is if they finally perceived to have some disadvantage, they'll be like, wait a minute, more of this.

0:13:05 Jenessa: You need the people who hate it to get power and pass laws against it. That's what has to happen. It's the only way. You can'T pass laws without a majority. So here Congress, they're up to some bullshit. Shit. What else is new? I good news is these laws are not going to make it through the Senate. The bad news is they're really bad. So SAVE Act is back in the House. Check out episode 1136 if you want a deep dive on everything that's going on there and why it's so terrible. Just as is a refresher. It is trying to make voter ID required for voter registration, and that is pretty sneaky. It makes it seem not so bad, but it's actually at risk of disenfranchising a ton of people, especially the way it was requiring ID risks, disenfrenchising anyone who's changed their name, like most who get married. Problems there. And most states do not offer a free ID, even if they do. Like a catch -22 of getting ID requires ID. If I don't have my birth certificate, how do I prove who I am? It's a huge problem. Probably going to pass the the house and it's dead on arrival in the senate there

0:13:17 Thomas: Knew? Yeah. We sure about that? Sure about that.

0:14:35 Jenessa: Definitely not going to get 60 votes, no way in hell would it get 60 votes, um has been some pressure do we get rid of the filibuster to try to pass this wildly unpopular bill with like the the The calculus of maybe it'll suppress so many voters that it doesn't matter that it's unpopular. But probably disproportionately disenfranchise poor people, which is disproportionately Democratic voters. But it will also probably disproportionately affect rural voters. Voters quite the math knowing

0:14:39 Thomas: Right. Yeah. Yeah, fair enough. Yeah yeah. Yeah Yeah.

0:15:15 Jenessa: Doesn't create a completely insurmountable barrier for people and people who are pissed will do what they have to do right so I don't know that it's a great calculus will they get rid of the filibuster to pass this and now they don't have the filibuster which is this thing it's great excuse for why oh I would have loved to vote yes on that bill that's controversial but you know what can you do um

0:15:39 Thomas: It or not, there's a lot of Senate Republicans who don't want to get rid of the filibuster? Like probably most of them.

0:15:44 Jenessa: Correct um it's a great excuse for why they didn't get on the record voting yes or no for something controversial it saves you um if they're not in power someday they want it so

0:15:58 Thomas: The save act is really real. I know you've covered it, but just as a refresher, it would be incredibly bad. Right. I mean, just very, very, Very, very bad. How many varies? That's what I need to know.

0:16:12 Jenessa: The top of my head. I'm remembering like double digit millions. I think it was like 21 million people do not have the documents required.

0:16:16 Thomas: 40 varies. Yeah. Jeez. And so it is really, I'm, I'M worried about this. Like they aren't going to kill the filibuster to do this. It doesn't, it seems like, but Here's what I'm worried about. With elections are going for us right now, these little special elections and everything, if it gets to the point where they see it as existential and they're like, well, nothing to lose because we're going to lose anyway, so gut the filibuster and do the Save Act, that could lock in fascism for an absurd amount of time. I'm like pretty worried about that. Hope that doesn't happen. I think as much as we are often we're really frustrated with the institutionalists on our side in the Senate. There's actually also a bunch of institutionalists in the senate on the Republican side,

0:16:30 Jenessa: And doubt it. -hmm. -huh.

0:17:05 Thomas: But they don't it doesn't affect a whole lot other than they haven't gutted the filibuster yet. Yet. I mean, that's the main way we've seen it not affect things, for but some reason, the Senate is just super out of touch. You know, I guess it's because of the nature of the institution. It's a, it'S on a time lag, which is, I GUESS it's kind of good in this instance. We'll give, we'll give a little, uh, we 'LL, weLL hand it to those, uh, founders for now for that one.

0:17:18 Jenessa: Of, yeah. Yep. I'm also kind of counting on people's self -interest that, you some Republican wants to be the only Republican who holds onto their seat and is like, hey, my buddy might be in trouble, but I don't want to do the most unpopular thing in the world.

0:17:40 Thomas: Yeah, that could be.

0:17:42 Jenessa: We're going to, as a party, lose a ton of seats, but maybe this party is about to not exist. So, you there's a lot of factors that'll go into this. States already strict voter ID or are passing things stricter so does not hurt to you put your own mask on first like track down your id make sure you're ready and help other people if you know anybody who might not have that stuff check in on people you know young people just getting registered part of the problem with making this part ofthe registration process is a lot of people think like oh I'm good but like Like, every time you move, change your address, or all kinds of things, you have to update your registration. And there was no provision in there that this is, like, a one -time only. Know, if you're somebody who doesn't own a home, it's every time you get a new apartment, you update your reservation, you a plan.

0:18:37 Thomas: Have a plan to vote be uh be ready uh have your paperwork in order so

0:18:42 Jenessa: If they don't do it on the federal level your state might so like get ready um sucks but a lot of times voter suppression efforts can backfire people get angry and they get ready so

0:18:54 Thomas: We have to hope for great

0:18:56 Jenessa: Holding out hope because even worse the make elections great again act act if we can get rid of this naming convention forever I would I'm

0:19:05 Thomas: Cannot wait to be done with this but we've been saying that for so long so I've realized that uh as I'm turning 40 this year trump has taken my entire 30s he's taken the whole 30s I

0:19:09 Jenessa: So over it I I have like three feet of hair and knowing that it grows like half an inch a year

0:19:23 Thomas: Know why that sounds so funny I have like three feet of I just don't typically hear. I like 10 gallons of hair, roughly.

0:19:32 Jenessa: The point is I was doing the math I'm like oh my god how old am I gonna be when I have my Trump hair is gone. The Trump administration has left my hair. It's going to be a while. I think I finally got rid of my grad school hair on my latest trim.

0:19:46 Thomas: The Trump administration has left my hair. That is funny.

0:19:53 Jenessa: It's going to be well. Good news on this bill. The effective date would be January 1st, 2027, so not affecting the midterms. Provisions had different effective dates, So it was a little harder to track down. But I think for the most part, this would if it passed, it's not going to pass. It's not gonna make it through the Senate filibuster. But this is terrible. This is the SAVE Act on steroids.

0:20:14 Thomas: I hope you're right.

0:20:15 Jenessa: And the SAVE Act was already like voter ID on steroids?

0:20:19 Thomas: Wait. Sorry. This is a different thing now? We're doing a... Oh, the MAGA one. Yeah, sorry.

0:20:21 Jenessa: This is another bill. Yeah.

0:20:25 Thomas: I got distracted with the existential crisis that I had for a moment there. So

0:20:29 Jenessa: Yeah this is like the save act but worse um it's going to require proof of citizenship to register, which is the same as the SAVE Act: Real ID passport, a military ID with your birthplace, federal, state, or tribal photo ID with your birthplace, or if you have federal, state, or tribal photo ID that does not have your birthplace, you also need a birth certificate or naturalization documents just to register. Going to add on to it voter ID when you vote. You're voting by mail, you're going have to attach a photocopy.

0:21:02 Thomas: Mail in your driver's license. Send in your Social Security card, yeah, which

0:21:09 Jenessa: Yeah, it's a photocopy. So they're like, oh, states, you are required now to provide photocopiers like all right thanks one little throwing me a bone here um state would have to share their database with the Social Security Administration and DHS so that they could do immigration enforcement if a non-citizen accidentally gets on the voter rolls. Basically, technically you would have to do it on purpose but Yeah.

0:21:39 Jenessa: It creates a private right of action to sue election officials who register somebody without requiring documentary proof of citizenship. Bans rank choice voting in the general election.

0:21:37 Thomas: Happens yeah what wow coming after that huh get

0:21:56 Jenessa: Bans universal vote by mail. So no more automatic sending you a ballot you have to request your ballot counting ballots received after the close of polls on election day so not even like if it shows up at 11 p .m that day like too bad um like

0:22:03 Thomas: Effed you pieces of crap because that makes sense so you got to know how long the post office takes I guess that doesn't make any sense the post date is what makes sense when it's when When you get it there, that's what makes sense.

0:22:27 Jenessa: It sets a voter registration deadline for 30 days before the election, which a lot of states have it earlier than that right now, requires that no less frequently than every 30 days your state has to verify the eligibility of every registrant in the database.

0:22:46 Thomas: That's like literally not possible. Am I misunderstanding something? Like they constantly have to be doing it.

0:22:53 Jenessa: don'T think they have to verify it like with you personally, but they have to like comb through the database and like double check everybody. Everybody is this is just like requiring that you hire a bunch of interns to work all day every day I don't know um might remember we've talked about before the like postcard thing that some states do where they'll be like oh you haven't voted in at least two federal elections we send you a postcard and if you don't send it back we're going to take you off the voter rolls this would require that that every state now that's the policy it's all the bad things it's terrible again like it would have to get through a senate filibuster but if it did like alaska couldn't do its rank choice voting anymore like why what

0:23:39 Thomas: We've long said those people who are like, hey, we need ranked voting, choice which I agree with. The way to get that is not to let Republicans be in power. They are literally trying to ban it.

0:23:50 Jenessa: Because it helps like moderates win and they don't like that. They're not fans.

0:23:56 Thomas: Basically, it's a good thing. So they hate it. I'm

0:23:59 Jenessa: Basically just everything kind and wonderful is illegal now. These are terrible. They'll probably pass the House performatively. They will not get through a Senate filibuster. Will the Senate nuke the filibuster to get rid of this? As of right now, absolutely not. Will they ever get desperate enough? I doubt it. Call your senator. Call your house rep. Make sure it is very clear to them how you feel about this. I think Republican senators are really going to be our wall on this. And, they get self -interested enough, I think that's what you really need is everybody else. Do you want me to vote for you? There you go. So those suck, but they don't seem like they're going to pass anytime soon, maybe ever. So be aware of them, call your reps, but we're probably okay. Ballot mailing deadlines. We got some cases going on and some stuff at the post post office. The a little bit of a problem and I think People are like mega reacting to it. So hopefully we can get some, some calm here.

0:25:13 Thomas: Not sure I know this. What is this?

0:25:15 Jenessa: Went on with the U .S. Postal Service where it's not a rule change it's a thing that was already happening and they just officially wrote it into the domestic mail manual and what it's making clear to everybody is the postmark gets applied to letters and that'll include your ballot when it gets to the sorting facility facility that's not necessarily the day you put it in the mailbox you knew that but it's also not necessarily the Day you gave it to your local post office the real problem is coming from the regional transportation optimization initiative it's the interaction of these two things that is the issue. Happened is USPS right now is run by people who think it should be a profitable business, which is bullshit. And they're like, oh, we got to cut inefficiencies. And one thing that's inefficient in rural areas is, well, we drive the truck out there in the morning to drop off letters. And then we drive there at night to pick up letters. What are we doing here? Year, why don't we just drive out there in the morning, drop off the letters that have to get delivered, and pick up the letters. It'll go to the sorting facility, cut the trips in half. What that means is you go, oh my God, I want my letter to get mailed. And you run to the post office at 4 p .m. to make sure you get it in on time. And it doesn't even get picked up until the the next morning anyway. Live outside a 50 -mile radius of a processing center, they will not pick up the mail at the end of the day every day. They pick it up in the morning to consolidate the trips. This impacts 71% of zip codes, which is 47% of the population. You get your ballot there and you just throw it in the slot and it's election day and you need a postmark on election day and they pick it up the next morning and take it to the processing facility and put the postmark you're screwed there's basically for 47 percent of the population there's now a one -day delay you give it to the post office it doesn't get the postmark until tomorrow because

0:27:35 Thomas: Would think this would affect more rural red voters, though, wouldn't it?

0:27:39 Jenessa: Does it absolutely does um do not mail your ballot on election day what are you waiting for I happen this could happen to somebody for reasons outside of their control if it is in your control what are your waiting for request that thing as early in advance as possible. Track your ballot. Only two states do not allow ballot tracking. It's, Wyoming and Missouri not have absentee ballot tracking every other state. You can track your ballot as it moves. The second you get that thing, fill it out and mail it, and this just won't be a problem.

0:27:41 Thomas: Interesting. Oh, yeah. Wow. Hmm.

0:28:19 Jenessa: Another option, if you do find yourself in the position of, oh, my God, it's election day, if you walk up to the counter and you say, hi, this is a ballot. I need you to postmark it right now in front of me, they will do that free of charge. And that's written into the USPS rules.

0:28:34 Thomas: I didn't know that. That's cool.

0:28:36 Jenessa: You have to mail something that is time sensitive, I would highly recommend go to the counter and say hi postmark right right now please thank you um free they will stamp it right then and there and that confirms they have it um if you're rural in particular there's a one day delay now and uh could mess with things just wait on it and go up to the the counter if you have to. Why

0:29:02 Thomas: Yeah. Now, when you say one day delay, that's only if you drop it off later in the day, right, or something? Or is it always going to be a one day delay?

0:29:10 Jenessa: Pretty much always because when they show up in the morning with the letters that have to go get delivered to everybody, that's when they pick up the letters for the next day.

0:29:19 Thomas: Okay. So you'd have to be like before that, which would be insanely early, I'm guessing.

0:29:23 Jenessa: Think so. I thinkthat stuff, like, based on my package tracking that I've seen before, Ithink that happens at like 5 a .m., You know, yeah.

0:29:30 Thomas: Sure. Okay, that makes sense. Yeah.

0:29:33 Jenessa: A lot of people think very nervous about this, looking at this as something very intentional. This really impacts rural voters by a day. You can always solve it by going to the counter and asking for the postmark. And it's really just codifying something that if you worked for the post office you already knew it doesn't usually get a postmark in the office it gets a post mark at the distribution facility it goes through a machine um it's kind of like letting you know that so wouldn't worry too too much about it, I would always strongly recommend to get that ballot in as fast as possible and you won't have to worry about this at all. Would you be mailing it on election day anyway? In almost every state, they have to receive it by election day or earlier. So this would be bad news to begin with. In 14 states, DC, Puerto Rico, Guam, and the Virgin Virgin Islands, you can mail it on election day or earlier. And if they receive it within a certain deadline, they'll still count it. The will give give you 14 days. Washington says any time before certification, which could be up to 21 days. Texas technically will count it if it shows up the next day by 5 p .m. That's the shortest window, so it's all over the place. But the vast majority of states are not affected by this anyway. Being said, there's a court case trying to get rid of this.

0:31:03 Thomas: To get rid of from which direction, like

0:31:05 Jenessa: To count ballots that were mailed on or before election day but received after election day

0:31:12 Thomas: Right. I'm saying, is it trying to get rid of the ability to even do that? Or is it trying to get rid of these restrictions on it? Oh, okay. Yeah. Just making sure. We can't have nice things.

0:31:21 Jenessa: We can't have nice things

0:31:22 Thomas: Gotcha. Confirmed. We just had to make sure.

0:31:22 Jenessa: These are bad for yes yeah I said it would only impact 14 states dc and three territories so most states, you're not allowed to do this anyway. For But the states that have this, you know, California allows it for seven days. Yeah, you guys have a ton of mail -in voting. So it makes sense, right? There's two cases going on. One of them got some confusing reporting because people don't understand the standing and the fact that there will be rulings from the Supreme Court that are not on the merits. Is Bost v. Illinois State Board of Elections. District court said, hey, candidate, person who is just like, oh, I'm a candidate and this is wrong and I'm mad and you shouldn't have this rule. You don't have standing here. And the Seventh Circuit affirmed. So standing, you have to have a concrete and particularized injury in fact, something that is, unique you to you. What they don't allow, like the classic would be taxpayer standing.

0:32:33 Thomas: Then you could challenge anything. Yeah?

0:32:35 Jenessa: If it spends my tax dollars, then I get to sue. That would be literally everybody. So it has to be something unique. What is it about you that makes you more important than just any old taxpayer? How are you affected uniquely. Supreme Court said he has standing and remanded.

0:32:55 Thomas: What?

0:32:55 Jenessa: I know, it's surprising for sure. Roberts wrote the majority, it was 7 -2. Wrote a concurrence that Kagan joined, and then KBG wrote a dissent that Sotomayor joined. Just says candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections yeah mm

0:32:57 Thomas: Way. Right. But if it's rules that should have no impact on like any one candidate, right? So that's why you shouldn't have like a particularized I feel like particularized would be the key there right am I wrong right

0:33:29 Jenessa: -hmm no what is the specific thing that's going to other than like but I could lose because I could get less votes okay that means you lost

0:33:38 Thomas: If it's arbitrary reasons then yeah you also could get more you also you know it's like that that affects candidates equally I guess is what I'm saying right

0:33:46 Jenessa: Exactly exactly like you're how are you proving to me that this somehow harms you as opposed to benefits you like tried to say at the oral argument like well if we try to force people to wait until after the election when they can like prove they lost because of ballots received after the selection which like how often does that really happen the the margin being that small.

0:34:09 Jenessa: Oh, if we force people to wait for that, now the court is in the position of changing the apparent winner. And I refer you back to Bush v. Gore? Like, you did that. And I yeah, you did that and you know that that was really ugly and nobody liked it.

0:34:19 Thomas: Yeah well that already how it works like Like you have certain challenges you can do legally.

0:34:28 Jenessa: Yeah. And then it kind of feels like the court picked a winner, which kind of feels shitty, but what are you going to do?

0:34:34 Thomas: And but that's kind of just how it has to be. If you're going to have this system, there might be sometimes when it happens. To go back to our ice skating episodes, sometimes there's a challenge and sometimes it's successful and then you change who won. Who cares?

0:34:48 Jenessa: Just not a good argument to me that like, well, if we force them to wait until they're actually harmed, then we look like assholes. And it's like, I don't know, maybe you are assholes, like, maybe that's part of your job.

0:35:00 Thomas: That's for sure. We all know that. They're definitely assholes.

0:35:06 Jenessa: Wrote a concurrence that tries to kind of split the difference where she said um is really bad to just generically say oh candidates have an interest in the outcome of elections like so does everybody else like said he could claim a pocketbook injury injury that's a traditional article three injury and he has to pay more people longer to monitor the counting of the votes and observe it which first of all no you don't you could just trust election officials but whatever um it costs more because that goes on longer and there you you go there's your actual particularized harm yeah

0:35:46 Thomas: People voted or something? You know, like, come on. Just a thing it's cost of doing business man spend

0:35:49 Jenessa: It's just no yeah and her dissent said the pocketbook theory would allow political candidates to spend their way past article three's injury in fact requirement despite our clear admonition that plaintiffs quote cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending that quote being from another case so that other case they held like you cannot look at some hypothetical future harm that might not even happen spend a bunch of money to prevent it and then say I spent money I was hurt like

0:36:28 Thomas: Way into standing that's interesting I that's an interesting phrase yeah yeah

0:36:32 Jenessa: Also said here that idea that candidates have some special interest that like distinguishes them from any old voter is exactly backward. A public office is a public trust and an election for that office is the ultimate expression of the will of the people, not a mere competition to be won or lost. Like, My interest in the election is more than your interest in winning. Like, absolutely not. Whatever. They said he has standing. They remanded it back to the district court. Who knows how long that's going to take to go back to district and back and to get back to Supreme Court on the merits. It's going be a while. Out. Other hand, Watson v. Republican National Committee oral arguments on the merits are going to happen March 23rd. It's the exact same arguments. The Fifth Circuit held that a Mississippi law allowing counting of ballots postmark on Election Day, received after Election Day, that this violates the Constitution.

0:36:53 Thomas: Sense to me can I go ahead and say no I'm gonna say no on that just so I'm not I'm non -expert you're the expert I'm top of my head no am I right did I get right right?

0:37:43 Jenessa: I agree if they said we'll take something postmarked after the election I would agree elections happen on a day and you can't just be like it later that's weird but if they postmark it on the day that means they voted on the day it's that's like that seems fine to me um entirely possible that at the supreme court they're going to have standing arguments the republican national committee is not a candidate so they're gonna have to talk about like standing

0:38:00 Thomas: Is the day. But could spend money to maybe evaluate and they'll find a way.

0:38:26 Jenessa: Based on what happened with the other case that they're They're going to find standing some way or another, but they're going to have to talk about it. The

0:38:35 Thomas: Is only when they want somebody to not be able to like, I don't know, not get executed. They want somebody to not be able to stop an execution or something, you know, it's only one way for The Maga on the court, it seems to me it's frequently a problem until it's all of a sudden not for mysterious reasons.

0:38:51 Jenessa: Your hypothetical wedding website is standing.

0:38:54 Thomas: That's the ultimate example. Once they did that, once they gave the hypothetical wedding website lady standing to challenge, God, the law that said you you have to, you know, not discriminate against gay people in your business or something like that. I forget exactly what it was.

0:39:01 Jenessa: It was all over. Yeah. Exactly. So if she did start a wedding website business, she hypothetically might have to make a website for a gay couple if they asked. And what they asked for could hypothetically require her to support something gay. You can't have that.

0:39:17 Thomas: Could have. Absolute joke. Unbelievable. So that's just, just give you an idea of what, what they do with standing everybody, in case you forgot that one.

0:39:40 Jenessa: So Neither of those cases on the merits at some point say that cannot count a ballot received after Election Day, that there's some constitutional violation or they're alleging a violation of federal, you know, the federal law says Election Day happens on this day and that's a violation. And I don't quite know why they would find that, except that they don't want people mail -in voting. Voting know I don'T KNOW THAT THIS COURT IS THAT COMMITTED TO ANTI -VOTING STUFF

0:40:13 Thomas: Mail. Yeah, especially when it seems like during the 2020 election, it might actually cost them because, because of so many people. Like I, I mean, it still is, I think, went back to, correct me if I'm wrong, I think more Democrats vote by mail, but it's not like, yeah, it's not like crazy. Yeah.

0:40:21 Jenessa: ON AVERAGE BUT NOT BY LIKE

0:40:30 Thomas: Plenty of older people are Republicans and they prefer to vote by mail.

0:40:31 Jenessa: THERE EXACTLY ESPECIALLY AS THEY AGE INTO DISABILITIES SO IT'S NOT LIKE SOME OBVIOUS THING WHERE IMPEEDING MAIL -IN VOTING will guarantee everybody a win across the board like it's gonna hurt some and help some

0:40:47 Thomas: If it did, they would. And that's, and it's already an indictment that that's what we're even talking about. Like that's the thing here is would this convey them enough of advantage? If so, yes, it will. The Supreme Court will be fine with it. But if not, it's like, maybe not worth the negative press. You know, like that's that's the analysis.

0:41:10 Jenessa: That's the really gross part is that unfortunately it really feels like even at the court it's starting to feel like it'S that simple and I hate that whatever it's where we're at right now but yeah I don't actually think it's that simple so the strict strict textualists. I don't know where they're going to get, you voted on election day. Why? It's not obvious.

0:41:32 Thomas: They will get it from their asses. There's no it's stupid, but OK, we'll see. We'll

0:41:39 Jenessa: So we'll see what happens. The Seventh Circuit said no standing and they have to reconsider. The Fifth Circuit said, you're totally right. This violates election law. And now that one's at the Supreme Court. So he got March 23rd. There will be oral arguments and we'll see how it goes.

0:41:56 Thomas: Yeah. That's gonna be a lot.

0:41:58 Jenessa: Affects 14 states and three territories and DC. Um. People don't have to worry about this, unfortunately, because your state is, um, being as kind about this.

0:42:10 Thomas: It's a cliche, but it's correct that if your vote didn't matter, they wouldn't try so freaking hard to make it harder for you to vote. That's true. It's absolutely true. It's your vote does matter. Matters even more than ever because they're trying to make It Not Matter and they could be another couple elections and your vote might not matter. So, you know, use your last few votes wisely.

0:42:34 Jenessa: Yeah, it's going to, they're not going to to in one fell swoop just make voting meaningless. We are not going to turn into North Korea where you get 108% of the vote. That's not going happen overnight.

0:42:46 Thomas: Yeah, but we're getting toward Russia. Russia, we're getting closer to how Russia, you know, like that's Yeah, it takes time. It's death by a thousand cuts. But like eventually that's the goal to where you have something that looks like an election. You can still say that you have elections, but they're meaningless and we're not there. But these little things could get us there and we need to stop it in its tracks. And voting is important.

0:43:07 Jenessa: If can stop it, and I strongly believe that we still can, we'll be okay. A lot of of bad stuff happening but like in the long run we can pull this off if we keep letting it death by a thousand cuts like yeah that is that is the aim is to get to the point where only some people can vote and we can just make shit up and we're not there yet and they're fighting this hard because we're Not there yet. They wouldn't they wouldn't bother with all this bullshit if they they could just make shit up. They can't. To hit one other thing that is like, like, let's all take a deep breath. This is a good news one, even though it's not going to sound like it at first. Trump is like out there saying, oh, Republicans should nationalize elections. Like we all know what that means, right? He's wants to manipulate elections. He would pick himself as dictator if he could. We all know that. Isn't he just saying I will nationalize elections? Why is he saying Republicans should? He can't. And that's not, oh, he can, it's illegal. That it's like physically, it possible. Not a thing you can just snap your fingers and do. Like, if he just said like, oh Canada did their elections wrong, like I'm going to make them vote for a new prime minister. I think we'd all understand that like, what? You are you going to invade Canada? Like we'd have bigger problems.

0:44:30 Thomas: I'm just kidding famous last words

0:44:34 Jenessa: Don't give them any ideas. Yeah. One, like you don't need to be any sort of legal expert to understand that he can't make Canada do a new election. This is like on the same level. Like don't have a federal board of elections. Say we had one and And Trump appoints who's in charge of it, and they had access to the voter rolls, and they could add and subtract people, and they had access to the ballots, and they certify the elections. Yeah, I'd be freaking out right now. That doesn't exist. The closest federal thing for elections is the Election Assistance Commission. They're an independent agency. They put out the federal voter registration form. They collect data on elections but like they do that by a voluntary survey to states to be like hi how many ballots did you cure how many bullets did got rejected how many absentees were there and had times where they have to put a note where they were like for some reason this state filled it out weird and we don't know what their answers meant so couldn't delete you off the voter rolls if they wanted to because they don't have access to the system they can't reject a ballot if they want to do because they don't have access to the ballot so

0:45:52 Jenessa: I actually have stuff on the georgia one um I I had that written up but I was like that's gonna yeah

0:45:51 Thomas: That to georgia separate story yeah no but point taken I mean this is a huge infrastructure you can't just Just be like, all right, we'll do it.

0:46:00 Jenessa: It's you can't and senate republicans when he proposed this on dan bongino's podcast he's like um senate republicans immediately including john thune the majority leader was like that's unconstitutional so no we will not be whatever he's even implying we do obviously did not put forth a policy proposal proposal um we will not be nationalizing the elections that's not a thing so all know he talks out his ass all the time like it's not something that is possible for the federal government to just start doing because only way to do it would be to hack into the database illegally which we've talked extensively about there are so many security measures to prevent this there are measures to detect it if it ever happened we're gonna be okay he is not going to control the elect just like ignore him ignore him don't even give it energy in the algorithm like

0:46:45 Thomas: I'm just kidding. Yeah. Don't take the bait on that one.

0:47:06 Jenessa: He had a federal board of elections I'd be very worried the agency doesn't exist and that is gonna save us so gonna be okay yeah

0:47:14 Thomas: Right. So that's nice. Little bit of good news there.

0:47:17 Jenessa: Scary that he says it and it's not okay that he would ever say something like that um it's state board of elections is not like oh my god what are we gonna do it's gonna do their job is what they're going to do it'S FINE yeah

0:47:29 Thomas: Right, well, nice to go out on a positive story. There's still plenty of election news to talk about, but I know you'll be keeping track of it because it's literally your job. So sure you'll let us know. But I guess overall, top line is very, serious threats, of course, and some cases that sound like complete bullshit that we'll keep an eye on. Election results looking fantastic so far we need to compete everywhere let's see what other top lines do we have uh can't just nationalize elections it's not gonna happen oh yeah everybody gerrymander everybody personally gerrymandered as much as you can support

0:47:37 Jenessa: Pretty much and the hell out of your state because no one's gonna stop you apparently. I'm

0:48:08 Thomas: Gerrymundering yeah yeah they started it we'll finish it like that one politician said or somebody said said that. I can't, I think it was a politician actually. And I was like, yeah, good. You're finally getting it.

0:48:09 Jenessa: Gonna gerrymander my apartment. Someday.

0:48:22 Thomas: To, hey, you control everything, Republicans. You want to end gerrymandering tonight? Do it. All for it.

0:48:28 Thomas: That would be great. End it everywhere. No more gerryandering. Or shut the hell up. We're going to out gerrymander you. Challenge accepted.

0:48:31 Jenessa: It. Love it. Yeah want a fair fight everywhere but unfortunately right now that's not what is allowed so

0:48:42 Thomas: Nope. The unilateral disarmament doesn't get us anywhere. And And I'm glad that it seems like we've mostly learned that lesson way too late. All right. Well, that was a great update. Thanks so much, as always. We'll see you next week.

0:48:50 Jenessa: I think so so Sounds good.

0:49:04 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com.