The USPS Ballot Scheme Was Even Worse Than You Thought

Transcript

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

0:00:03 Jenessa: If the state gives us a whole bunch of ballots and there's any error at all, all of them are going back and the state has to fix it.

0:00:18 Jenessa: Kavanaugh is not licking Trump's boots. He's licking somebody's boots, I just can't figure out whose.

0:00:33 Thomas: Hello and welcome to Opening Arguments. This is episode 1298. I'm Thomas. That over there is real life voting rights related attorney, Jenessa. How are you doing?

0:00:42 Jenessa: I'm doing great. Ugh, a weight has lifted from my shoulders.

0:00:50 Thomas: Are you talking about the recent Supreme Court voting rights decision?

0:00:54 Jenessa: Yeah, yeah, things just got a hell of a lot easier over at the office, so, um, doing good. Doing good. Mail-in ballots are in fact going to operate this year so that's nice. Yeah

0:01:05 Thomas: Yeah, it seems like it should have never been in doubt.

0:01:08 Jenessa: Gave me a scare for a little while there

0:01:10 Thomas: Don't know what the point of that whole thing was. As I said, told Matt on Friday, like, what were we doing here? Why did we do all this? Why bother? Just let the lower court stand. They could have just left it alone.

0:01:17 Jenessa: Yeah Just A little heart attack for like a hot minute no worries no real reason could have just done that absolutely could have Just Left It Alone there was literally no reason for any of that but it's okay now it's all okay like finally slept solidly that night. Right. So nice.

0:01:36 Thomas: So you were all braced for impact then? Right.

0:01:44 Jenessa: Oh, yeah. As we talked about, I was fairly certain that what happened is what was going to happen. They did not let this go through. But if it happened, it was going to be so bad. Everybody who works on the ground in elections was like, you know, that scene in SpongeBob when there's like all the filing cabinets are on fire and he's like running around like a maniac trying to find things.

0:02:09 Jenessa: It was that. I mean, everybody was mobilizing to get ready for this possibility because if it happened we had to be ready you know if there's one thing you can walk away with it's how many people you're never going to meet whose names you're ever going to know who were ready to drop everything to make sure you could vote it's truly inspiring the work that goes into first of all getting to where we did get which is this isn't even going to happen anyway. And second of all, the efforts that were put in to prepare and to potentially mitigate the damage.

0:02:48 Jenessa: There are so many people who believe in your sacred right to vote. And you're never going to know about it because it's not even going to happen anyways, so it's all okay.

0:02:59 Thomas: I know two people who don't believe in your sacred right to vote.

0:03:03 Jenessa: Thomas, I gave myself the best present in the world. I didn't read it. I'm not reading that goddamn thing. I am not reading Alito's stupid dissent. I'm just not doing it. Maybe I'll do it someday in the future. I'M JUST NOT. I'M NOT GONNA DO IT. That decision came out at like 8 p.m. on a Monday. I saw the like one paragraph. I saw Kavanaugh's stupid one paragraph and then I saw eight pages from Alito and I started to skim it and then it was like whoa what am I doing? I'm in such a good mood right now? Why would I read this? It's not the law.

0:03:36 Thomas: Fair.

0:03:37 Jenessa: It doesn't control anything. He couldn't get more than one person to agree with him. Why would I read this it doesn't matter so I'm just I'm not

0:03:47 Thomas: I think that's fair. Good decision.

0:03:49 Jenessa: Doing it why would I do it probably someday it might matter eventually not right now

0:03:53 Thomas: Sometimes it's fun to read when you know he's a loser and you get to read about him having sour grapes and all that, but yeah, no, fair enough.

0:03:58 Jenessa: A little temper tantrum he's throwing I just didn't feel like it so maybe eventually we'll

0:04:01 Thomas: Yeah. So what are we going to talk about then? We're not doing that, I guess. Hmm.

0:04:09 Jenessa: Do a little bit about less what they literally wrote down because it's literally a paragraph and more about the actual implications here. What do we know now about what's going to happen in this election? I want to talk a little bit about the D.C. Circuit decision that dropped like a few hours beforehand and got like no attention because of that. Not D.C. Circuit. The D .S. trial court talked a little bit about what to do with this decision forthcoming. What's going to happen? We don't know. It's actually pretty helpful. I want to talk about some of the whistleblower reports that have come out. Those are pretty important. All of the things that led up to why I'm not worried about things being a total disaster in this election. I'm sure there will be people. There will be the Kim Davis of ballots who's going to try to do something. But overall, why I think we're in good shape. And then with whatever time we have oh boy Missouri redistricting what a mess is going on over there it's like it was written by my civ pro professor for an exam it's pretty wild over there

0:05:17 Thomas: Awesome. Well, I'm excited to talk about all that, but it seems like kind of good news. It's also, you know, the polling's looking good. You never know. If we could squeeze a Texas victory out of something, you never know, you just never know we'll we'll yeah, we'll, we're, we get to all of it. Why don't we take a quick break here? Patreon.com slash law, by the way, as you're hearing this, it's possible that lot awful movies coyote V V Acme might be out right now.

0:05:30 Jenessa: My God oh my dreams oh

0:05:47 Thomas: We've definitely will have recorded it by the time you hear this. So get on that, get on a lot awful movies all right see you in a minute all

0:05:56 Ad: [Ad break 1 — ad music]

0:05:56 Thomas: Right, where do you want to

0:05:57 Jenessa: All Right, interesting. I don't know what to call this intrigue court intrigue confusion I asked Matt to confer on this and he also doesn't know what to make of this okay the stay decision we talked about there was that whole thing where it was like oh it's per curiam so we have the dissents from the liberals and we don't know like hypothetically, technically it could be 6-3. It could be 5-4. Like maybe, yes,

0:06:28 Thomas: Start you're talking about the first one where it was like the dc circuit I believe had stayed it done a bunch of work yeah first circuit gotcha and uh the supreme court was like it's not ripe yet that one

0:06:33 Jenessa: First Circuit, the Massachusetts trial court. But yes, yes. That one. Somebody wrote, and it says in all caps, the words per curiam. So we don't know technically. Somebody. Wrote. It's just not ripe yet because they haven't written the rule yet. So how do you know if the rule is unconstitutional? Yeah.

0:07:02 Thomas: Because they're like we're gonna write an unconstitutional rule it's my answer that but that's okay

0:07:07 Jenessa: Cause there's an executive order that is already written, so that should have been enough.

0:07:12 Thomas: That says please do use the following unconstitional

0:07:16 Jenessa: Sotomayor wrote a dissent, joined by Kagan. Jackson wrote a descent. So it's somewhere in the realm of 6 -3, or hypothetically, theoretically possible, that it's 5 -3 -1 temper tantrum in the hallway. Disagreed, but didn't bother to sign any of the dissents or write their own dissent. Just just silently didn't say anything. It's possible.

0:07:30 Thomas: Rule hmm I mean I could see that being possible like a a right wing judge not wanting to sign on to the liberal dissents, right?

0:07:42 Jenessa: Also not wanting to write their own. Percurium is a great opportunity to not put my name on anything .It's hypothetically possible.

0:07:50 Thomas: Well, and keep me in mind, correct me if I'm wrong. I just want to make sure I have this right.

0:07:54 Thomas: This is shadow docket crap, right. So it's completely normal to get nothing.

0:07:57 Jenessa: It is. Absolutely. You could just get a no reasoning or yeah, exactly. It'S hypothetically POSSIBLE. That was five, four, but the fourth was like, I decline to comment. ItS totally possible. We know you had to have at least five in order to win this one we've got the words per curiam do not appear but the one paragraph that just says y 'all are gonna lose on the merits this is dumb that's not signed cavanaugh writes his little one paragraph concurrence and then alito writes eight pages joined by thomas I don't know if it means anything that the words procurium did not appear.

0:08:00 Thomas: So there's no baseline expectation that we're definitely going to get an explanation from anyone. Yeah. Yep. Hmm. Hmm,

0:08:45 Jenessa: Does that mean we're not announcing who wrote this? It's two whole sentences. Does it matter who wrote it?

0:08:51 Thomas: Yeah.

0:08:52 Jenessa: We're not annoucing who wrote those two sentences with their three brain cells that it took to write it, but it's six of us and then one Kavanaugh and then two Thomas Alito. Or is it hypothetically four people, Kavanaagh makes five, Thomas and Alito wrote a dissent, and then two people chose to not vote with anybody or say anything I don't know it could be that tight it is oh

0:09:18 Thomas: That is most curium. What is, okay, now I'm forgetting. What does per curium again? Is that separate from, can you have a shadow docket that's not percurium? Yeah. What does that mean again?

0:09:30 Jenessa: Yes and you can have regular decisions that are the word per curiam it's a latin like by the court as a whole so like sometimes when there's really serious

0:09:40 Thomas: Oh, it means basically don't ask.

0:09:44 Jenessa: Stuff yes we're not even telling you who we we all wrote it all this is I am Spartacus yes we wrote this together so is it possible they didn't write that because we do not affirm that we said this at one voice we said this during a fist fight but here's our one paragraph

0:09:49 Thomas: Yes. I'm Spartacus. Yeah. But percurum doesn't have to be like a unanimous decision. What the hell?

0:10:09 Jenessa: Also no no because the other one says Whereas per curiam, here's five to six people.

0:10:14 Thomas: Yeah, exactly. That's what I was thinking. Pretty weird to be like percurim with the court. We all announce. Anyway, here's everyone who disagrees.

0:10:23 Jenessa: Right, right. Did they just not write the words per curium because they're like, this was very not per curia. This was very fought. Or did they not write that because it's four, one, two, and then two non -speaking members. I don't know if it means anything that they didn't write that. I can't make sense of it. It's hypothetically possible Kavanaugh was the swing fifth vote and chose to write the silliest nonsense.

0:10:53 Thomas: We don't know.

0:10:54 Jenessa: I don'T think that's true. I DON'T think it's true that he was like, I shall decide in favor of the people, but I have to say something. Like, come on. He could have said nothing.

0:11:05 Thomas: Yeah, I don't know, but he likes saying dumb stuff.

0:11:08 Jenessa: Oh my god, he loves... When saying nothing is free, he will still say something every single time. I don't know. I keep trying to figure out... I was like, the amount of times and ways I tried to Google different versions of what does it mean when they don't say who wrote it. Normally, if they don't say per curiam, they do say who wrote it. What does it mean when you don't do either? What's happening? I don't know.

0:11:33 Jenessa: I don' know. And I can't make sense of it. So it's anywhere from four plus one to six plus one in favor of don't -do -the -stupidest -possible -thing. The most illegal possible thing.

0:11:49 Thomas: Wow, I didn't realize it was that slim. I just saw the two.

0:11:52 Jenessa: It could hypothetically be you saw the two and then the Cavanaugh concurrence so you would think it's seven two it could be only four for the first paragraph and Cav is the swing I don't think so I don' t know I don'' t know what these words mean so yeah yeah

0:12:07 Thomas: Yeah well that makes me feel worse, but that's okay.

0:12:11 Jenessa: I don '' t know it's weird we'll see I don'T they're not gonna there's no way they're gonna win this on the merits and here's the deal When it comes back for 2028 to fully decide this on the merits, can he do this? In the worst case scenario where they say, yeah, go ahead, we're going to have two years to prepare. And I can't even tell you how great the efforts were to prepare when we thought we had two months.

0:12:18 Thomas: No, yeah, there's no way.

0:12:41 Jenessa: They're not taking us down. We're goingto figure this out. Obviously, it would be better to not do the most illegal, most ridiculous thing to restrict mail -in voting. That would be better for sure.

0:12:47 Thomas: That would be better. That would be more optimal.

0:12:53 Jenessa: I could mention here briefly a little bit about what Kavanaugh said, like the statutory rule he cited too, but it sounds like maybe you and Matt covered that.

0:13:02 Thomas: I'll be honest. It was so dumb. I don'T remember much. I know we touched on it, but I couldn't his stuff is so stupid. I couldn'T really tell you what it was. I think I joked that it it was likely, you know, the Congress probably could do something if something or something, because that's what he did last time.

0:13:12 Jenessa: It's so painful. Yeah, Matt, I think very appropriately analogized this to the election law version of birthright citizenship. There's no way this was ever going to go the other way, but if it did it would have been that ridiculous and that revealing of how far gone this court is always worth mentioning that thomas and alito not the trump appointees they're so far down the rabbit hole it's unbelievable I don't know man something's wrong with the two of them like it's so far beyond just they're really

0:13:40 Thomas: Yeah, I did mention that. It is very weird.

0:13:53 Thomas: On one hand, it does make sense because they're the demographic of all of our families that we know are the most far gone. But there's plenty of young Nazis out there. It's surprising that Trump's own Trump's picks aren't the worst. It ist really surprising.

0:13:58 Jenessa: Conservative it's true also true yeah it's very very true you would think Thomas and Alito were his picks.

0:14:15 Thomas: Yeah! It's not that the the other picks are good is that they're so bad it's crazy yeah

0:14:20 Jenessa: Right, right. Absolutely. His picks are reliably extremely conservative. They're not like reliably MAGA and like Fox News brained in a way that Alito and Thomas really are. They are like down the internet deep end, like something's not right.

0:14:41 Thomas: They have been for a while

0:14:42 Jenessa: They have. So yikes on all of that. But we're OK.

0:14:46 Thomas: So you say okay we'll take your word for it

0:14:49 Jenessa: Similar to birthright citizenship, Kavanaugh had to say something weird instead of just yes or no. He had to give us the maybe. I just want to bring us back to remember how he's like literally the person who coined the whole idea of a major questions doctrine. Yeah.

0:15:07 Thomas: Yeah based on your deep dive

0:15:10 Jenessa: Is this not a major question, whether or not the post office can, like, override a state's ability to regulate its own elections?

0:15:17 Thomas: It seems a smidge major

0:15:20 Jenessa: It does, does it not? The administration practically conceded how many people would be disenfranchised by this. If you let them implement it, even with plenty of time, that's kind of still going to be true. And he cited, too, well, they might have statutory authority because under 39 U .S .C. Section 401, Subsection 2, the general powers of the Postal Service, they have the power to adopt, amend, and repeal such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions under this title and such other functions as may may be assigned to the Postal Service under any provision of law outside of this title. That might authorize them to force you to design your ballots a certain way and your ballot envelopes and also give us a list of all your voters and also we will batch reject them and you can't mail ballots unless you do this.

0:16:16 Thomas: Yeah like take control of something that is not their effing job because of a catch -all provision like in the

0:16:21 Jenessa: And somehow, yeah, when Congress gave that general author, literally general powers, that general vague authorization, that could be applied to this extremely specific thing. But that doesn't fall under, well, clearly that's a major question. If Congress meant to give you this very specific and huge power, they would have been more

0:16:45 Thomas: Bottom yeah maybe would have said something about

0:16:47 Jenessa: Clear when they did it. Maybe they would've been more specific when they said it.

0:16:51 Thomas: It yeah that's stupid wow wouldn't you know know it they're idiots and hypocritical idiots made mainly Kavanaugh but a

0:16:57 Jenessa: Wouldn't you know, that rule only applies when they care. Yeah. So anyway, that's dumb and ridiculous. He did say it might be a thing they're allowed to do. He didn't say definitely. He just cited that one thing and then he was like, well, but trying to implement it right now would obviously be a problem because there's no time. And he's not wrong. I don't know how much you caught about the whistleblower report that came Yeah, it's really bad. This is clearly somebody relatively high up in development over at the Postal Service because they talk a lot about things that are being withheld to protect this person's identity. Like if we tell you too much of what they told us, there's an agency that's helping this person get the information out. Now, yeah, if we tell you too much of what they told us, you're going to know who they are.

0:17:25 Thomas: Little bit wow

0:17:52 Jenessa: We're going temper some of this, but basically in an attempt to get this all working technologically, the ability for a state to give the Postal Service its list of voters and then to give it a ballot design and have that checked. And then we're going to scan the ballots and check that what's on the envelope matches what's in our system that you gave us. That's not going to be people with checkboxes and a piece of paper. That's going to Be a computer. It's really bad. So first of all, nobody was willing to write any of it down the entire time. They were just being given oral instructions of what to do.

0:17:51 Thomas: Yeah always a good

0:18:37 Jenessa: Yeah, yeah, it's not great. They were like, can you like ever write any of this down? Like just some bullets on a whiteboard would be like really great. They kept being told, no, what we're asking you to do is so simple. Why would we have to write it down? And they were like. Well, if it's so simple, then it would be really simple to write it.

0:18:54 Jenessa: Wouldn't that back and forth just kept being like who's on first? It never ended with, OK, we'll write it down. The biggest issue is that they were told the tolerance in the system was going to be a 0 % failure rate. If the state gives us a whole bunch of ballots and we scan them and there's any error at all, there's any mismatch, there'S any flag, all of them are going back and the state has to fix it.

0:18:54 Thomas: Sign well

0:19:23 Jenessa: Yeah. So the problem is the state is often turning over like 10 ,000 ballots at a time. So if one doesn't match or if one barcode gets scanned wrong because computers aren't perfect, and printers aren't perfect the whole batch goes back and the state has to cure it and if the problem is there's nothing wrong with the batch there's something wrong with your computer the state isn't even going to figure that out they're just going to like feel like they're being gaslit while they go through their list 45 times and go there's Nothing Wrong With These Envelopes There's Nothing wrong with these I can't figure it out There's nothing Wrong With The Envelops And there's no built -in mechanism for them to like solemnly swear, I promise you these are all real voters, just please take the goddamn ballots. That's impossible. I think what might have happened, it's a totally normal software development thing, an IT thing to say, what's the acceptable failure rate on X? No system is perfect. It's impossible. What is the tolerance level? How good do you want this machine to be? Because that affects cost. That affects redundancies. You know, if system A is allowed to have some error rate, then fine. But if it fails, I need maybe I need system B to be able to catch errors that go through system A, you know, whatever. I think what might have happened is somebody said, what's the acceptable failure rate? And somebody else heard how many illegal immigrants are allowed to vote.

0:20:14 Thomas: Stupid yeah right yeah of

0:20:59 Jenessa: And they were like, zero, zero percent failure. What ended up happening is just essentially every part of the system has zero tolerance. So like, Florida tried to voluntarily participate and sent their ballot design over to the Postal Service. And the rule was when you're outside of the envelope has like a return address, the spacing between the lines had to be a quarter inch, so 0 .25. And it was 0 .236. And they rejected it.

0:21:15 Thomas: Course they did that's

0:21:32 Jenessa: Yeah. So 0 .014 inches was a problem. And they had to like appeal to get their ballot envelope accepted because a guy who worked there in Florida was like, hi, I can't reprint all of these. It's too late. I won't be able to print them all in time to then mail them by our mailing deadline, which is in the law. So you have to accept these. So I think that might be what happened is they just got told like absolutely everything has to be zero tolerance, absolutely perfect. And it was like, do you mean literally everything? Like the barcode can't ever be, you know, it's black on a white background. Well, what's black? What's white? What's the percent of ink printed on that? No, just everything's zero tolerance. So it was just falling apart.

0:21:31 Thomas: An illegal right there do you think that wasn't intentional you're you're kind of saying that there could have been an accident or something

0:22:25 Jenessa: I think it's a little bit of both. When you underfund things and you don't communicate clearly, this was inevitable.

0:22:32 Thomas: I just am wondering is this your speculation or is this

0:22:35 Jenessa: What's definitely written explicitly in the whistleblower report is that they were told 0 % failure rate, and what that resulted in is batch rejection of ballots for a single problem anywhere from a mismatch to a misscanned barcode. Any problem ever was going to result in complete rejection of everything. I am speculating about how I think somebody came to the conclusion that everything had to be zero tolerance, where that miscommunication might have happened, because they can't possibly have meant to say to Florida, the spacing on your envelopes has to be 0 .25, not 0 .236.

0:23:19 Thomas: I don't know man man. I don't know. If you're in a secret post office cabal that says don't write anything down, maybe.

0:23:25 Jenessa: And there's definitely some people whose motive was to never allow a single ballot and to destroy everything at some point the distinction between malice and incompetence becomes just a singularity there's nothing there's no distinction anymore they talked about like team a and team b were working on different things that obviously these two pieces of the system had to work together but they would like come together in a meeting and discover each other Like, oh, you're working on that? I'm working on this. Oh, no. Our code has to work together. What are we to do? I didn't design my thing to interface with your thing. It's pretty bad. People should read it. This person's a hero. They spoke up, and I think it had a drastic impact on people realizing it was not feasible to implement this in time. This system was not going to launch. The reason I lean towards at least partly incompetence is if this system didn't launch, you couldn't stop the ballot being mailed. If the state board showed up with ballots and there was no system to scan them, any Postal Service employee could be like, I'm just going to mail these. Screw it.

0:24:38 Thomas: Sick.

0:24:38 Jenessa: No one's going to know because there's no system to check.

0:24:45 Ad: [Ad break 2 — ad music]

0:24:45 Jenessa: We also got a decision out of the district court for the District of Columbia. They had originally said, we're not going to put an injunction in because it's it's not ripe, like almost identical to what the Supreme Court said. And the D .C. Circuit had upheld that. The judge in the trial court came back and said, OK, the final rule is here. I will rule on it now and I will give you an injunction. And not only that, I'm going to say no state can voluntarily participate in this either.

0:25:18 Jenessa: Even if one state is like, no, I don't want to. And And the Supreme Court does or doesn't say that's OK. In the meanwhile, while all of this is going on, we can't have some states choosing to participate and other states fighting it. Like, it's just going to be too chaotic. This is a Trump appointee from 2019 and a former clerk of Clarence Thomas writing, you guys are going to lose on the merits. The Postal Service does not have the authority to do something this broad. Odd. This is all Travera's. And you can't have some people doing it anyway. It's just going to be too much of a mess. Put all of that together. And especially based on what we saw from the whistleblower, what I am far, far, less concerned about now is the idea that somebody is going to try to illegally implement this.

0:26:12 Thomas: Yeah, no, that one.

0:26:13 Jenessa: I was worried at some point that like, are they going to have a functioning system and like just do it anyway. And if it was like a really good functioning piece of software that was going to be implemented at a distribution center, just like as part of scanning envelopes, hypothetically, that could be a problem. But this is like something where they're not going to scan every piece of mail and be like ballot that is good, ballot that is bad, not a ballot. Don't even put it through the check. That's not happening. It would would literally take somebody choosing to see that these are ballots and put them through a system that isn't even working. The human factor of I don't want to break the law and the fact that the system doesn't even freaking work in the first place, we're going to be all right. My remaining concern is mail delays.

0:27:05 Jenessa: The mail delays are still getting worse and worse. Could any one individual interfere with your mail? That was always true. What I would say to our very savvy audience is anything you go to do, you should do it as early as humanly possible. Vote early, request a mail -in ballot early, mail it back early, all of that. Track your ballot.

0:27:26 Thomas: Is an attack on people with ADHD. I'm being disenfranchised. How dare you? Oh, and also do it early in the morning, like wake up on time.

0:27:36 Jenessa: Yes. Okay, you don't have to do that one. If it's possible for you to vote in person, I would recommend it because the mail delays are concerning to me. If, God forbid, something really bad happened, taking the burden off your local officials who are trying to correct problems with the mail. The fewer people they have to do that for, the better. To the less savvy audience or the low propensity voter, if you are communicating information to people, anyone you go talk to about voting, mail -in voting is going to be safe and secure. Like always, mail that damn ballot. Because the last thing I want anyone to hear is, uh -oh, there were problems. I might as well not even bother. If I mail that ballot, it might not even make it anyway. Who gives a shit? And you you know there are people who are that uninterested.

0:28:01 Thomas: Time. Hey, idiots, if you're listening. Yeah.

0:28:26 Jenessa: It only takes the smallest barrier before they don't bother. For our savvy audience, move early, track that ballot, be paying attention to what's going on. Maybe try to vote in person if you can. To everybody else, it's going to be fine. Mail your damn ballot. It's fine. Everything's fine." The audience really matters depending on the level of detail of information you want to communicate here. It''s good. I can breathe easy. I think we're going to be okay. There is a second whistleblower that came out that's also concerning.

0:28:58 Thomas: Geez, I hope they wiped that whistle off.

0:29:00 Jenessa: There's some amazing organizations working on this too. The whistleblauer for the post office, the organization that helped them is called Whistleblower Aid, and their letterhead says, report government and corporate law breaking without breaking the law. Everything you need to know about how to report this stuff without getting yourself in trouble. Really great that these organizations exist.

0:29:23 Thomas: Kidding.

0:29:23 Jenessa: This one's out of the U .S. Customs and Immigration Services, their Fraud Detection and National Security Directorate Headquarters, which they have abbreviated in this document as USCIS -FDNS -HQ. At some point, the acronym is not helping anybody, actually.

0:29:45 Thomas: You can pry the acronym from a government worker's cold dead hands, Jenessa. That's just how it is.

0:29:52 Jenessa: The number of acronyms I have had to learn since, like, joining government work, I can't deal with it. They mean nothing. Thing. They help no one. It's so inaccessible to like anybody. You start talking and they're like, wait, what?

0:30:05 Thomas: In defense, I used to complain about this when Lydia worked for the state and would tell me about her job, even though I also worked there. I would complain about that. I'd be like, what are you talking about? I don't know what all these things are. But it is, it just comes from them having to say it a billion times a day for them.

0:30:25 Thomas: It's not, it's not anything for the public. It's like, they just have to say these things so many times that, like, eventually you just have to use the shorthand.

0:30:32 Jenessa: Yeah, it's when you first start, you're like this could be anything. The one thing I will never drop. I don't care how many times you've written it for any document that could ever be seen by an external person. The first time you use that acronym. You have to spell it out first or else people... I'm like googling SAVE and I'm like, this could be anything. This could be a hundred things.

0:30:59 Jenessa: My God. It turns out SAVE is the Systematic Alien Verification Entitlements Program. That took me forever, but I got there eventually. They started an unlawful voter initiative, unbeknownst to everybody until until this came out, they were basically having DHS employees try to figure out who's unlawfully voting, which bears repeating for the millionth time, the answer is no one. It's not happening. Not a real thing.

0:31:29 Thomas: I mean, there was that, what, New Jersey thing where they found, like. A few hundred. No, no, it was, it Was, remember, they, they made hay out of it. There was some system problem where it led to a few hundred or something.

0:31:33 Jenessa: Oh my god, that one guy ever. Holy shit.

0:31:44 Jenessa: Oh, but those are always like they put somebody on the voter roll on accident, not that that person necessarily voted.

0:31:50 Thomas: The New Jersey one, it was 66 ,000 records were registered, but then 400 voters actually ended up voting illegally because of that. That was like the worst one ever, honestly, that I know of. That's like the most people voting illegally that I've ever heard of. And that is 0 .009 % of the total votes cast in 2024 in New Jersey in that election.

0:32:16 Jenessa: The thing to always least keep in mind is there is no central database of every voter because why would there be? The states are taking care of it. There's no federal database, right? That's why there's all these lawsuits where they're trying to get the voter rolls from each state. They're losing every single time because they don't have a right to it. Some states, the public voter roll, the thing anybody can access is just like first and last names not much info at all some states it's a ton of information it's like your name and your address and what party you're registered to and you last voted in this year and it'll never say who you voted for obviously because that's anonymous but um oh you voted by absentee and then you voted in person and then whatever your vote was challenged like all of that could be public there's always going to be a second private set of voter rolls that has like your social security or your DMV ID, whatever they used to verify your identity. That's the thing the government's trying to get a hold of, the federal government, because there could be two Thomas Smiths living in the same apartment building and one is eligible to vote and one has not. So they can't be sure from the public information if that Thomas Smith really really voted illegally. The state already is sure because they check and

0:33:40 Jenessa: They have the information that's completely unnecessary.

0:33:40 Thomas: So what you're saying is they need a thing they shouldn't have in order to do something that isn't their job?

0:33:47 Jenessa: Yeah, it's completely necessary and nonsense. Yeah.

0:33:50 Thomas: Gotcha.

0:33:50 Jenessa: They started trying because they can't get the states to involuntarily turn it over. And that's a lot of states are refusing. They're trying to cobble it together as best they can from like 10 different systems. And they just started pulling it together and then telling people who work for them like, hey, just go into the state database. You know, you can go look up voter information. But some of the states, because that stuff's not supposed to be public, they make you click a box affirming like, I solemnly swear I am the voter checking my own personal registration.

0:34:24 Thomas: I'm not a jackbooted thug fascist trying to steal an election.

0:34:28 Jenessa: And when people said, hey, I think that's breaking the law, they just said to them, don't worry about it. You'll be fine. Well, you're legally protected. And at no point explained in what way are you legally protected yeah exactly like you are absolutely not legally protected the worst part was and I swear to god there was a transcript of a training video oh yeah this is it's like 40 pages it is absolutely worth checking out once again some hero really putting themselves on the line here at one point in the training video there was an expressed recognition of these flaws. The video tells DHS employees that certain information that is not included in the source data will be, quote, brought in through supplemental magic, end quote. Magic is not a recognized form

0:34:40 Thomas: Yeah. What they meant was Trump will pardon you maybe. Oh, wow. Really? Supplemental. Magic.

0:35:23 Jenessa: Of record keeping under state or federal law. I think what they mean is just they're going to ask the fancy AI computer machine to do it and they believe in magic.

0:35:34 Thomas: Yeah, I think they don't want to say what it is, or it could be more sinister. And it's working with one of the many corporations that has our Elon or whoever has our freaking information, you know, and they just didn't want us to say that.

0:35:43 Jenessa: The biggest problem is any inaccuracy in this, which is inevitable. You're supposed to do five people an hour, 40 a day. So that's like 12 minutes a person. Here's a person, go check. It's very specifically focused on naturalized citizens. They want to check if they voted before they were naturalized. And if there is any error anywhere in the data, are you mixing them up with with a different person? Are you mixing up the exact date they were naturalized and the exact date they voted? You would be creating a criminal record for referral that is inaccurate. And they know the source data is crap.

0:36:28 Jenessa: They're just supposed to, within 12 minutes, just do it and move on. Another whistleblower just letting us know that it's not good and they're just accessing these systems. Unbelievable.

0:36:37 Thomas: I mean, the effort they're putting into this is just alarming.

0:36:42 Jenessa: It's such high effort, but also it isn't because they're like like not trying at all. And it's a mess and never going to work. They'll get a referral and then it'll just be dismissed. They're a naturalized citizen who's eligible to vote. It won't be that hard to prove I was naturalized on this day. I voted on this Day. You're talking about a different guy. I mean, I don't want to dismiss how serious that would be for a person to go through, but will it even get to that level? If you have a single competent DA, they're going to be like, like, I'm not prosecuting that. You made that up. You pulled that data from a private corporate database. They named some private corporate databases they're using.

0:37:21 Thomas: Oh, there you go. That's what I said.

0:37:23 Jenessa: It's not usable. Yeah, but that's like, they name that and then also talk about when that fails, we will also use supplemental magic. Yeah. Baffling. That's a mess and people should know about it. Please check that out.

0:37:28 Thomas: Oh. Okay. Use magic. And well done, whistleblowers.

0:37:40 Jenessa: Yes. And a lot of senators making sure these whistleblowers are getting attention. So that's nice my

0:37:45 Thomas: Imagine how much better it will be if we could control control the Senator of the house or both. And then when they are really getting a lot of attention. Yeah.

0:37:52 Jenessa: Dreams vote please vote my god if people put in this much work so you can vote and then you don't bother I'm gonna lose my mind please

0:38:02 Thomas: And if people put in that much work to try to make you not vote again, there's a reason, there's reason why they're doing that.

0:38:06 Jenessa: I wonder why yeah it's almost like it matters what happens in the next election my

0:38:15 Thomas: I get this. There's a certain group of people that's like, all right, you don't believe me that voting's important, but what about the evil bad guys who have won everything in charge? They're in charge and they're taking a whole lot of effort. They're undertaking a lot of effort to stop us from voting. Believe them, maybe?

0:38:22 Jenessa: God seriously the amount of time and money and attention that has been poured into this is unbelievable. Go vote. Ask your neighbor what is their plan to vote. Do they need a ride to the polls? Do not ask if they're planning to vote speak with the language of presumption that of course we're all voting. When are you voting? Where? Do you need help? Not do you want to? No everybody of course wants to. That little bit of presumption and language can actually be super helpful in getting people to be like uh yeah Yeah. Yeah. I'll take a ride. Effective strategies.

0:39:10 Ad: [Ad break 3 — ad music]

0:39:10 Jenessa: So with our remaining time, we should talk about Missouri. I don't know how much you saw about chaos over there with their maps.

0:39:17 Thomas: It's been a number of different iterations, right? It has gone back and forth. They used a bad map, then it got overturned. I'm excited to hear the full breakdown.

0:39:25 Jenessa: Yeah, okay. 2020, we do the census. So 2022, they get a new map. This is normal. It's not like that map was amazing and wonderful or anything. I'm sure I have heard that it was gerrymandered to an extent the expected breakdown on average you know this is quite the year would have been six republicans two democrats I didn't realize missouri was that small what happened was they tried to redistrict it to swing it by a seat and they were doing like so many states they were doing the mid

0:40:01 Thomas: Yeah, that's like the new normal.

0:40:03 Jenessa: -decade redistricting yeah I guess it gets through the house the state house the state senate it gets signed by the governor while they're like waiting on a signature from the The governor, this group of people, not politicians, submits to the secretary of state for Missouri the signatures to put a referendum on the ballot to keep the old map. And he rejects that because the governor hasn't signed the bill yet. As soon as the governor signs the bill, they show up with a new pile of signatures. And they also sue because they say, I should be able to submit this early. What are you talking about?

0:40:32 Thomas: Where have I seen this before? Not quite ready. Not quite time.

0:40:36 Jenessa: There's always a reason, right? So there's like a bunch of lawsuits back and forth with that. That was all in 2025. March 24th of 2026, the Missouri Supreme Court says mid -decade redistricting not necessarily unconstitutional. So they're in the middle of, you know, trying to figure this all out. May 12th, 2026. They say if the referendum is supposed to be on the ballot, HB1 never went into effect. This is a very specific thing about Missouri state law. If you get a referendum on the ballot then a law cannot take effect like essentially the people are allowed to override laws in that way if the secretary of state determines that there weren't enough signatures or you know you can go through and dispute every signature they probably have to be registered voters or like whatever you go through them that's not a real person whatever If he says this isn't legally sufficient, then the bill is passed, like your referendum isn't real. So the bill ist passed and signed and HB1, the map that they made up mid -district, would go into effect. They tell us that on May 12th, 2026. If your ballot referendum should be on the ballot, then... The law never went into effect, the maps never went in effect, it's not even real, you have to use the 2022 map. If there's some good reason to not verify this referendum, then the new map can be used. The problem is that's not like an injunction telling them what to do. It's saying you have to figure out this referendum situation first and the deadline hasn't come up yet. And then it's August 4th, 2026, and they hold the primaries using this HB1 new map. And then the secretary of state declares he thinks the referendum is constitutionally invalid. He gives up on this issue about like the signatures should have been collected after the governor signed it. And he says the signatures are fine. August 17th, a trial court, which had originally said, well, the whole thing could be moot about whether the signatures were before the governor. You got signatures after the governor, meh, mehh, mehhh. He still bothers to rule on the merits about the secretary of state does have the right to hold this unconstitutional and he doesn't moot it out and everything. Thing and on september 3rd the missouri supreme court says you should have mooted it out the signature thing was moot and also everything he's saying about the referendum is unconstitutional that's not true the referendum needs to go on the ballot and the hb1 map is illegal it's not real it never existed because the people overrode it until the referendum has passed or not passed the people haven't voted so the law is not real oh

0:43:33 Thomas: Maybe lawyers were a mistake.

0:43:35 Jenessa: My god, it's such chaos because here's the problem because they didn't

0:43:38 Thomas: I was trying so hard to follow. And now I'm like, I don't, I do. I want the referendum or no, I don't remember.

0:43:45 Jenessa: So the problem is there was never an injunction so they held the primaries using the mid-decade redistricting more gerrymandered map but now the supreme court of missouri says that map never existed you have to go back to the 2022 map what the hell are we supposed to do. Yeah.

0:44:05 Thomas: Yeah. You already had the primaries, but

0:44:08 Jenessa: Which like hypothetically, I guess there's not technically anything wrong with that. It's not great for election administration, but like some people voted in a primary thinking they were in one district and now in the general election, they're going to vote in a different district. Like, I mean, I don't know. I don' know. It's like, I know it's not like the end of the world.

0:44:25 Thomas: You wouldn't like rerun the prime. No, I guess it doesn't. Yeah, you wouldn't like rerun the primaries or something.

0:44:30 Jenessa: Hypothetically, you could have, it's a little late. It's September. The biggest thing they say is like the whole idea of like, like, it's too late. We already held the primaries. They're like, you did that. You, Secretary of State, incorrectly, illegally refused to validate this referendum and therefore you chose to use an illegal map. You can't come to me and say it's Too Late to Use the Good Map because I illegally used the bad map you were the guy who decided like what are you doing okay we're gonna use the old slightly better map well on september 4th some republican congressmen sue in federal court they asked for an emergency appeal from both the district court and from all the way straight to the supreme court we need help cavanaugh is the one who oversees that circuit so So it goes to him. And, you know, that whole thing where like it goes to you and you can when it's an emergency order, you could refer to the court or not. Yeah.

0:45:37 Thomas: Hmm, or I think they can like pull it from you if there's enough people who want to change it or something yeah,

0:45:42 Jenessa: If enough people think you're out of line, they could take it from you. Kavanaugh just says he doesn't even bother asking the rest of the court. He is just like appeal denied. You're doing what the Missouri State Supreme Court says to do.

0:45:55 Thomas: Which is like pretty surprising to me, I guess or should I not be surprised?

0:45:59 Jenessa: On the one hand, like he could have done the very Republican thing and be like, give me more Republicans in Congress. On the other hand, like we talked about, that's probably what Thomas and Alito would have wanted to do. Kavanaugh is not licking Trump's boots. He's licking somebody's boots, I just can't figure out who's.

0:46:13 Thomas: I think he's pretty into Trump. He's pretty into Trump.

0:46:20 Jenessa: Somebody at the Federalist Society. He is pretty into Trump, but like, yes, he's got all lines somewhere.

0:46:23 Thomas: Just has lines that, again, they're not great. Thomas and Alito are so bad. We have to agree on the curve of like, everything is so bad, like unconstitutional or whatever that like, it's, you know, it should be, they're picking the obvious right answer, you know?

0:46:39 Jenessa: Yeah, it truly is. So, okay, he says that, I'm not helping you. Minutes later, I'm talking like I follow all these election law people so I can like keep track of things. And it was like everything exploded because it was like, oh, Kavanaugh denies appeal. Missouri is going to use this map. Just kidding. The federal district court goes temporary restraining order under the equal protection clause. Some of the people voted in the one map and then some people voted on the other. Then they're going to vote in the other map. And this creates different groups, different classes of people who are going to be treated differently. I know.

0:47:14 Thomas: Okay. What the F are we supposed to do? Like, what's the perfect solution to that? It's already, either way you did it, it would be wrong there.

0:47:20 Jenessa: I know. There's no right map. September 8th, this day when this is happening, is the deadline for Missouri to finalize their ballot.

0:47:30 Thomas: I think Missouri doesn't get to be a state anymore. More. I think a lot. We prove there's no map of Missouri. It's actually. And if you've proven that there's no map, that means the space isn't even there. So therefore, wow,

0:47:40 Jenessa: My god, the Eighth Circuit upholds that on the ninth which really surprised people and then it goes back to Kavanaugh and the Supreme Court and they stay that order on the 10th and they say no, I'm serious do what the Missouri Supreme Court told you to do it's on hold technically they still have to for real decide it on the merits the temporary restraining order is gone the only order currently controlling is the missouri state supreme court who said use the old map they're litigating it in the federal court but they have to mail ballots on the 19th we are recording on the 17th and on the 16th this guy for the people who want to change the map is arguing that deadline is our deadline to mail it to overseas and military voters you could always waive that deadline and give us more time to litigate this no you

0:48:34 Thomas: Quit it.

0:48:35 Jenessa: No you can't we're done here you're not gonna win it's not gonna go through the trial court and the eighth circuit and then back to the supreme court and they're finally gonna agree like it's not happening for like one seat it's

0:48:46 Thomas: Could be. Yeah, it could be pretty important.

0:48:49 Jenessa: Not guaranteed this is the house

0:48:52 Thomas: I hear you. But this man, I think they see how bad things are going right now for Trump. And they're like, even more desperate.

0:48:57 Jenessa: They're super desperate but like realistically they're not going to lose the house by one seat they're going to lose the house by a frickin a lot of seats. It's going to be bad, provided something absolutely wild doesn't happen.

0:49:05 Thomas: Well, I hope so. I mean, I don't know. I don' I think it's going to be pretty close. They've mandered jerryed a lot of manders you know they've they've effed with a lot all right

0:49:14 Jenessa: Maps that are taking that into account are putting them at somewhere between down 20 to 40.

0:49:21 Jenessa: It is looking like a bloodbath out there. So we will see what happens. A map where we potentially take the Senate is a map where they get screwed in the House. So, we shall see. In the meanwhile, while because they for like 12 whole seconds had a good holding in the federal district court the secretary of state like ran and tried to finalize the ballots and like tell everybody we're using the new more gerrymandered map so the missouri supreme court held a contempt hearing and they were like hey you didn't follow our order on the surface this sounds so simple supremacy clause. The federal court said one thing, you said another, I did what they said. It's actually not simple at all. You picked up on it immediately. Now you're telling me none of the maps are good. The Federal Court did not say, use the map you used in the primary. They put a temporary restraining order and said, using a different map from the one you used in the primary could create an equal protection clause problem. They did not say the one you used in the primary is a good legal map. They just said the old map now is a problem because of the other thing. Maybe I'm one guy the Supreme Court just overrode me. Critically what they were challenging a brand new group of plaintiffs was challenging a brand-new issue. The decision they put out where they said HB1 never went into effect. It never had any legal power behind it. Nobody challenged that. So this is really important legally, no matter how much it seems like, well, of course, as an A equals B, B equals C kind of logical chain, that must mean that decision is moot. Nobody challenged it and nobody said that. So you're still violating our order. That decision in Maggard v. Missouri that was never mooted it was always in place you must agree you were violating our order you could have complied with all of the orders by doing literally nothing until a decision was made about what's the right map to use and you ran and violated our order I'm going to link to the hearing about this where you get to see this man's lawyer try to thread the needle. That was the holding as to state law. And they're like, I need a concrete answer. What are you telling election officials to do? And he's like, we are considering all of our options. And they're like, what options? There are no options. You have to do what I told you to do. The whole hearing ends with them saying, tell your client not to venture far from our office oh man it's bad where we're at right now is almost certainly Missouri is going to use the 2022 map which is different from the one in the primaries

0:52:29 Jenessa: Which is wild but it's still being litigated and they're trying to get them to waive the deadline the federal deadline to mail out ballots to overseas voters so that they can still try to change the map it's all over the place. Probably they're not going to win by the fundamental issue that the secretary of state managed to get them to use the gerrymandered map in the primaries by himself refusing to certify a referendum illegally. Legally. That's not going to be a way for you to get around this with, well, now we have to because we did it. They're like, no. Pretty wild to have Kavanaugh, like four minutes later, he issues that decision. And then a district court judge is like, just kidding. Do what I said. Pretty chaotic. But I think we have finally settled in. It's not changing now. Hooray, Missouri.

0:53:25 Thomas: What a journey sorry I thought I was gonna get a clip or

0:53:28 Jenessa: We're a little short on time, but if you want to, I've got a couple of, I'm going to send you the link 1909 you can hear somebody talk about what you guys have been

0:53:36 Clip: Counselor, I'm less than perfectly comfortable with your response that you were going to evaluate options going forward. I don't see any options that you didn't have the day we handed down Van Glam, and the Secretary promptly complied with the injunction and told the local election authorities to use the 2022 map. So I don' see what's different today than was the state of play on that day. Would you enlighten me? What else is there to be considered other than the fact that our injunction, which has never not been in effect, is still fully in effect? Yes, Judge Wilson, obviously we're past the statutory deadline. Would you agree that we complied with that deadline, that we did all we had to do before the September 8 deadline? Certainly, Judge Wilson. Yes, yes. This court very much complied with the deadline and did so expeditiously. Of course, the individual plaintiffs were not parties to the litigation that was in this court. They were not bound by its judgment, and so then they chose to bring their own action in federal court as a federal cause of action. I don't want to wake up tomorrow and read that the position of the Secretary is he can do nothing because the September 8 deadline has passed. The obligation to act occurred when we handed down von Glahn, and it's never not been the Would you agree that the September 9 deadline will not prevent the Secretary from complying Judge Wilson, I agree that the injunction issued in Von Glahn does control the situation right now, and the Secretary will be looking to implement this Court's injunction. And again, how that technically happens, that's what's being evaluated right now.

0:55:43 Jenessa: Doing this will go on and on we're

0:55:47 Thomas: Something because he knows he's gonna be

0:55:56 Jenessa: Evaluate we yes we he's always got to stop and ever so slightly rephrase it yeah he just talked to his client five minutes ago who told him probably what he really wants to do and you can't say that he's going to do something that you know he isn't going to do so you're trying to get this guy out of trouble. I don't envy this lawyer but uh oh boy they ended up for this instance they said he was in contempt but he purged the contempt when he ordered the use of the 2022 map in a press conference during this hearing so um he got himself out of trouble for the moment but I highly recommend listening to this because the court's not happy and they do a really good job of breaking down procedurally like the difference between a potential conflicting federal order versus actually overturning explicitly what we told you to do there is a huge meaningful difference when you decide what action to take like hey talk to your lawyer before you do stuff that's my general advice to everybody yeah Yeah, pretty wild.

0:57:00 Thomas: Lying yeah oh good times that was fun all right Jenessa thanks for the breakdown uh lots of I think pretty much all good voting news there. I mean, feeling a lot better. You guys should take vacation.

0:57:15 Jenessa: Oh my god, I'm actually sort of sleeping now. It's gonna be okay. Follow some state cases. Some are not so good, but there's like a lot of good stuff happening on the state and on the federal level, but litigating like what's gonna happen in this particular state. Your states are fighting really hard to protect your rights and quite a few are winning.

0:57:37 Thomas: Yeah, this post office thing was so bad that Republican voting administrators essentially were complaining about this.

0:57:44 Thomas: Because they're like, this just doesn't, we just won't be able to vote. Like, nobody will be able to vote, you idiots. You know, so, like, that's how bad this was. All right, well, thanks, as always, Jenessa. And we'll see you next time, everybody.

0:57:51 Jenessa: It was. Good talking to you.

0:58:31 Thomas: That is most curium.

0:58:35 Jenessa: This will go on and on.

0:58:38 Thomas: Hey, idiots, if you're listening.