Latest / rationally BASED / Episode 36 | Can States Check Voters' Citizenship?

Transcript

Episode 36 | Can States Check Voters' Citizenship? · rationally BASED

• 0:00
  SPEAKER_01: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:04
  SPEAKER_01: I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.
• 0:08
  SPEAKER_00: I'm Catherine Johnson with Center of the American Experiment.
• 0:12
  SPEAKER_02: And I'm Josh Kleinfeld, Rouse Professor of Law at the Scalia School of Law.
• 0:16
  SPEAKER_01: Josh, I love your outfit.
• 0:17
  SPEAKER_01: Catherine, what's on deck?
• 0:19
  SPEAKER_00: Well, another Supreme Court preview episode today, but we are focused on election integrity.
• 0:25
  SPEAKER_00: First, the Supreme Court will be hearing a case about whether federal law preempts Arizona's attempt to require voter ID on its state registration forms.
• 0:34
  SPEAKER_00: Second, can a previous consent decree and disable a future Arizona legislature from tackling this problem?
• 0:40
  SPEAKER_00: And third, can Arizona remove non-citizens from the roles just before an election?
• 0:45
  SPEAKER_00: The answer seems obvious to me, but let's hear what the lawyers have to say.
• 0:49
  SPEAKER_01: Let's dive in.
• 1:04
  SPEAKER_01: Okay, Catherine, where should we start?
• 1:06
  SPEAKER_00: Well, let's start with RNC V Mi Familia Vota, which is the Supreme Court, uh, the case the Supreme Court is hearing early in this upcoming term.
• 1:16
  SPEAKER_00: It's a case about non-citizen voting.
• 1:19
  SPEAKER_00: And it's one of those like insane cases where the answer should be obvious, but uh lawyers have gotten involved and like complicated this whole thing, and then the courts have gotten involved and uh done it wrong.
• 1:32
  SPEAKER_00: So, with that preface, um Arizona passed a law that required verification of citizenship when someone registers to vote.
• 1:39
  SPEAKER_00: Smart.
• 1:40
  SPEAKER_00: Of course, it's already illegal to vote if you're not a citizen.
• 1:43
  SPEAKER_00: But to enforce that, obviously, someone has to check.
• 1:46
  SPEAKER_00: So the law says when you register to vote, you also have to prove your citizenship.
• 1:51
  SPEAKER_00: Somehow, an activist organization sued saying that checking citizenship violates federal law, even though you have to be a citizen to vote.
• 2:01
  SPEAKER_00: Okay, and then the Ninth Circuit agreed again, somehow.
• 2:06
  SPEAKER_00: So apparently, my take is that we have a law on the books, citizens can't vote in our elections, that no one is allowed to enforce somehow.
• 2:16
  SPEAKER_00: I don't know, Josh.
• 2:17
  SPEAKER_00: What do you make of this?
• 2:19
  SPEAKER_02: I mean, I Catherine, you're right.
• 2:22
  SPEAKER_02: And it's crazy, and I agree that it's crazy, and I think its craziness needs to be part of what we're discussing today.
• 2:29
  SPEAKER_02: So we're gonna discuss all the legalistic twists and turns in this case, but before getting into those twists and turns, I think it's important to keep some common sense issues front and center.
• 2:42
  SPEAKER_02: Because what I think we're seeing in this case is basically complexity for the sake of power.
• 2:47
  SPEAKER_02: It's like a wrongful complexity.
• 2:48
  SPEAKER_02: It's complexity that's not justified by the subject matter.
• 2:52
  SPEAKER_02: Um, so you know, sometimes there is complexity because, like, you're talking about fluid dynamics in physics, and it's just intrinsically complex.
• 3:00
  SPEAKER_02: This is not one of those cases.
• 3:02
  SPEAKER_02: Here, one side lost a political argument and generated an intricate legal argument uh as a substitute.
• 3:11
  SPEAKER_02: And to what end?
• 3:12
  SPEAKER_02: Well, the point of this is to move it into courts and hopefully get sympathetic judges to uh override the country's clear political decision.
• 3:20
  SPEAKER_02: So I think of this as a kind of misuse of the legal system and indeed a misuse of intellectual capacity or intellectual talent, like what our minds are for, what intelligence is for, is to illuminate things, not make them complex for the sake of power.
• 3:37
  SPEAKER_02: Um, and you know, by way of indicating that, the Ninth Circuit opinion in this case is 156 pages long.
• 3:46
  SPEAKER_02: And the opening on the second page, it says the following.
• 3:49
  SPEAKER_02: I'm gonna quote it.
• 3:50
  SPEAKER_02: The challenges raised in the briefing can be grouped into six general categories.
• 3:56
  SPEAKER_02: There are 14 specific issues.
• 3:58
  SPEAKER_02: So 156 pages in six categories addressing six issues.
• 4:03
  SPEAKER_02: Folks, this is not fluid dynamics.
• 4:06
  SPEAKER_02: If you're feeling suspicious, you're right.
• 4:09
  SPEAKER_02: The antidote is to use common sense and keep your eye on some big picture concepts.
• 4:14
  SPEAKER_02: So, what's going on really in this case?
• 4:16
  SPEAKER_02: Well, there's a rule.
• 4:17
  SPEAKER_02: The rule is only citizens can vote in federal and state elections.
• 4:21
  SPEAKER_02: That is not a controversial rule, at least as a legal matter or as a public political matter, right?
• 4:27
  SPEAKER_02: So it's the rule in all 50 states and it is the rule under federal law.
• 4:31
  SPEAKER_02: There's no public controversy about it because, first of all, it's legally settled.
• 4:36
  SPEAKER_02: And second of all, it makes sense on first principles.
• 4:39
  SPEAKER_02: You can't have a democracy unless you have a demos, a political community that is deciding things together as a we the people.
• 4:45
  SPEAKER_02: That's the very idea of democracy.
• 4:48
  SPEAKER_02: And in order to do that, you have to decide who is in the political community as part of the demos.
• 4:53
  SPEAKER_02: And the word for that is citizen.
• 4:56
  SPEAKER_02: Anyone who is a citizen is inside the political community.
• 4:58
  SPEAKER_02: So it just makes sense on first principles, and therefore the vast majority of Americans agree with it.
• 5:03
  SPEAKER_02: Now, I'm sure many on the left disagree with the principle.
• 5:08
  SPEAKER_02: And I suspect many just sort of pragmatic political operatives on the Democratic side see it as an obstacle to winning elections.
• 5:16
  SPEAKER_02: But disputing it directly is a political and legal non-starter.
• 5:21
  SPEAKER_02: So the game is to dispute the mechanism for enforcing it, right?
• 5:26
  SPEAKER_02: Can't dispute that citizenship is required to vote.
• 5:29
  SPEAKER_02: You can dispute the requirement of checking citizenship before voting.
• 5:34
  SPEAKER_02: So the way it works is um uh uh the progressives try to say you can't demand a license or a passport or a birth certificate or a piece of mail or any idea whatsoever to verify that you are in fact a citizen who's entitled to vote.
• 5:54
  SPEAKER_02: It's like saying um you can't drink unless you're 21, but no bar or alcohol store is allowed to check.
• 6:01
  SPEAKER_02: And the arguments for this are that it's unnecessary to check because there's never fraud anyway.
• 6:07
  SPEAKER_02: That's one that we see in the press a great deal, and that that checking will discourage the downtrodden from registering to vote because uh they have more difficulty producing the relevant documents.
• 6:18
  SPEAKER_02: And that's all familiar.
• 6:19
  SPEAKER_02: We know those arguments from politics.
• 6:22
  SPEAKER_02: The key thing to know about this case is it's a tecked up legal version of that basic issue.
• 6:28
  SPEAKER_02: So there's a law, both federal and state, which says you must be a citizen to vote.
• 6:32
  SPEAKER_02: That law is not under dispute in this case.
• 6:34
  SPEAKER_02: There's a federal form for registry to vote that says, are you a citizen?
• 6:39
  SPEAKER_02: And it requires you to check a box under penalty of perjury.
• 6:43
  SPEAKER_02: That's also not disputed.
• 6:44
  SPEAKER_02: There's no dispute about the check the box.
• 6:47
  SPEAKER_02: Arizona wants to have people prove it.
• 6:49
  SPEAKER_02: If they check the box, it wants to say, give us a document proving it.
• 6:53
  SPEAKER_02: That is what is challenged.
• 6:55
  SPEAKER_02: Plaintiffs are claiming that for intricate legal reasons, which we'll get into, Arizona is not allowed to check.
• 7:01
  SPEAKER_02: So, Elon, Catherine, before we get into the details, I just want to ask you about this big picture.
• 7:08
  SPEAKER_02: Um, this position that the plaintiffs are taking, which is that you can ask if someone is a citizen, but you can't check to see if they're telling the truth, because checking will discourage the poor and isn't necessary.
• 7:20
  SPEAKER_02: Is that anything but a pretext?
• 7:22
  SPEAKER_02: Is there an argument that's serious on that side?
• 7:25
  SPEAKER_02: And if not, is the goal here under the surface simply to get non-citizens to vote in order to swing elections, or is there some more defensible goal at stake?
• 7:37
  SPEAKER_02: I see your expressions.
• 7:39
  SPEAKER_02: I have a feeling you think there is nothing but pretext here, and the goal is for non-citizens to vote in contravention of the law.
• 7:46
  SPEAKER_00: It has to be, right?
• 7:47
  SPEAKER_00: I mean, it's it's interesting how you use that 21 plus example of the ID, because one of the main things they say on the other side is that no one who is not a citizen is voting in our elections because the repercussions are too large.
• 8:02
  SPEAKER_00: If you are found to be voting fraudulently, um, you know, there are severe penalties.
• 8:07
  SPEAKER_00: There are also pretty severe penalties if you drink underage.
• 8:11
  SPEAKER_00: And yet we know that um most young people drink before they turn 21.
• 8:16
  SPEAKER_00: I don't know the stats on that.
• 8:18
  SPEAKER_00: But so I think that that points out, you know, the silliness of this argument on two fronts.
• 8:23
  SPEAKER_00: They also try and claim that there are all kinds of people out there who can't get ID, right?
• 8:27
  SPEAKER_00: Like this was the whole argument from people on the left that, well, take me, I am too dumb to figure out how to get new documents that prove my citizenship with my married last name on it.
• 8:39
  SPEAKER_00: That was too much of a barrier for women, and somehow this would disenfranchise women from voting.
• 8:43
  SPEAKER_00: That's absurd.
• 8:44
  SPEAKER_00: Uh, to get on the airplane, I had to go through all of that kind of reggae.
• 8:49
  SPEAKER_00: And there is regamar roll to get your new documents and things like that.
• 8:52
  SPEAKER_00: But I had to do that to go fly on an airplane.
• 8:54
  SPEAKER_00: Why shouldn't I have to do that to vote in our elections?
• 8:57
  SPEAKER_00: So, yes, I think this is all just an excuse to try and keep people who shouldn't be voting in our elections voting in our elections.
• 9:05
  SPEAKER_01: So, of course, as usual, I pretty much agree with Catherine, but um uh it wouldn't be fun if I just stopped there.
• 9:12
  SPEAKER_01: So let me say one other thing.
• 9:13
  SPEAKER_01: I mean, we had an episode, this was a bit before you joined Josh, uh, where we talked to someone who the organization investigates this.
• 9:21
  SPEAKER_01: And the Nevada Secretary of State like admitted that some 6,000 um non-immigrants voted.
• 9:28
  SPEAKER_01: And the question is why?
• 9:29
  SPEAKER_01: It's because the automatic registration from the DMV, and it's the kind of thing where and you're allowed to get a license if you're here even illegally, and uh they don't know that they're actually not supposed to vote.
• 9:42
  SPEAKER_01: Nobody tells them that you are not supposed to vote unless you're a citizen.
• 9:46
  SPEAKER_01: And so I actually think it's much harder to detect, or it's it's much harder to punish and criminalize because if you commit it's not fraud if you literally didn't know you weren't allowed to do it.
• 9:57
  SPEAKER_01: And so it's in a way this automatic registration, and then like it's your mail and your mail ballot shows up at your house.
• 10:04
  SPEAKER_01: Like, why would you think you're not supposed to vote?
• 10:06
  SPEAKER_01: And so, in a way, it's to get people to vote who who can't vote, but who don't know they can't vote.
• 10:11
  SPEAKER_01: And so you actually can't really punish them for that because you need this mensrea.
• 10:15
  SPEAKER_01: But I don't know, look, ultimately, I agree that you need IDs for everything, and so it's kind of weird to say that you don't need uh documentation to prove citizenship because citizenship matters, right?
• 10:25
  SPEAKER_01: You should be able to prove citizenship.
• 10:27
  SPEAKER_01: And so I guess my question back to you, Josh, is let's presume that there is a number of people who will be denied the right to vote, who are genuinely citizens, genuinely have a right to vote but can't prove their citizenship.
• 10:38
  SPEAKER_01: How do you weigh the harm to those individuals as opposed to the harm to the polity of having some people vote who uh other who shouldn't be voting and who would otherwise be caught and stopped if you had in place this mechanism that also prevented some genuine citizens from voting?
• 10:57
  SPEAKER_01: How do you measure that harm?
• 10:59
  SPEAKER_01: They almost seem incommensurable.
• 11:00
  SPEAKER_01: Like obviously to the person who didn't vote, that's like a big deal.
• 11:03
  SPEAKER_01: But to me, it's it's like making sure that the only citizens vote for the polity is extremely important for the polity for all sorts of political philosophy reasons, because it defines what a polity is, because of confidence in elections.
• 11:15
  SPEAKER_01: And it kind of reminds me of the debate over the death penalty, right?
• 11:18
  SPEAKER_01: Like, okay, yeah, maybe a few innocent people might be executed, and that's tragic and awful and should be prevented.
• 11:25
  SPEAKER_01: Does it follow that you should abolish the death penalty, or is there actually good to the polity that comes from having the death penalty?
• 11:30
  SPEAKER_01: And I don't know, they just seem quite incommensurate.
• 11:34
  SPEAKER_02: Yeah, that's a really interesting way of putting it.
• 11:38
  SPEAKER_02: Um I or framing the issue, because I I think I agree with you that there's probably no way in real life of setting up any sort of verification system for who can vote uh without um having some like false negatives and some false positives.
• 11:57
  SPEAKER_02: So, like, what's a false negative?
• 11:58
  SPEAKER_02: A false negative in this context would be someone is a lawful voter and they don't get a chance to vote.
• 12:03
  SPEAKER_02: And what's a false positive?
• 12:04
  SPEAKER_02: Well, that would be someone is an illegal voter and they do get a chance to vote.
• 12:08
  SPEAKER_02: And that could be citizenship, it could be felony status, it could be mental incapacity.
• 12:12
  SPEAKER_02: Mental incapacity is kind of an interesting case, right?
• 12:14
  SPEAKER_02: Like if you have pretty vigorous tests to make sure that someone doesn't have like advanced cognitive decline and is there are rules, right?
• 12:22
  SPEAKER_02: Like if you have mental incapacity, if you've been a judge by a court to have mental incapacity, in many states you are denied the right to vote.
• 12:30
  SPEAKER_02: You lose your right to vote.
• 12:31
  SPEAKER_02: But that means you have to make judgments about who's got advanced mental decline.
• 12:36
  SPEAKER_02: And if you make them um uh too stringent, you're gonna have a lot of people who um should be allowed to vote who can't.
• 12:46
  SPEAKER_02: And if you make them too loose, you have the opposite problem.
• 12:49
  SPEAKER_02: I don't know if there's a way of avoiding it.
• 12:51
  SPEAKER_02: It seems to me you make a good faith effort as a political community to get it right.
• 12:56
  SPEAKER_02: What about the argument that um uh that people who are at the margins of society have a really hard time getting appropriate documents?
• 13:06
  SPEAKER_02: This sort of argument for sympathy for the downdrawn.
• 13:09
  SPEAKER_02: So um the thought here would be that, like, okay, um, we have passports because we travel internationally.
• 13:17
  SPEAKER_02: We have birth certificates because our parents maintain them in some safe place from the time we were born.
• 13:22
  SPEAKER_02: We have social security cards.
• 13:24
  SPEAKER_02: But if you live in a more hard scrabble way, maybe none of those things are available to you.
• 13:29
  SPEAKER_02: And it's actually quite hard to prove where you were born and when.
• 13:33
  SPEAKER_02: Is that a reasonable argument?
• 13:34
  SPEAKER_02: I I honestly don't know what the truth is about this.
• 13:38
  SPEAKER_02: I don't know what it's like to go to the DMV and try to get a license.
• 13:42
  SPEAKER_02: It seems like the core identification document in American society is your license.
• 13:47
  SPEAKER_02: I imagine that even people who are on the very margins of society and are getting like public services, like food stamps or welfare, they still have to prove their identity to get the services.
• 13:58
  SPEAKER_00: Yeah, and also even getting a birth certificate, you know, my lovely parents did not preserve mine in a safe place, or at least couldn't find it at the moment.
• 14:05
  SPEAKER_00: I needed it.
• 14:06
  SPEAKER_00: And you can just go to the county you were born in and get your birth certificate.
• 14:11
  SPEAKER_00: Now, you know, there might be a very small amount of people who never were registered as born, maybe.
• 14:17
  SPEAKER_00: I have to imagine that's an extremely small number.
• 14:20
  SPEAKER_00: Um, but you're right, it is maybe still a problem that we could address, but it doesn't seem worthy of the national debate that we're having right now over this law.
• 14:29
  SPEAKER_02: It comes back to Elon's point.
• 14:31
  SPEAKER_02: There are some people who are going to have a hard time, and we could try to set up legal and bureaucratic systems for making sure that they can get documents to prove the reality of their situation, which is they are citizens.
• 14:42
  SPEAKER_02: But we have potentially a very large problem with very large numbers of non-citizens who could vote, and we have to deal with that as the primary problem.
• 14:51
  SPEAKER_00: Exactly.
• 14:54
  SPEAKER_00: I agree.
• 14:54
  SPEAKER_00: Well, do you want to move on onto some of the now that we've established that this whole thing is kind of absurd, we can, I guess, maybe take some of the legal arguments relatively seriously in this.
• 15:05
  SPEAKER_02: This whole episode will have that structure.
• 15:07
  SPEAKER_02: We're gonna take, we're gonna start off with Catherine saying it's absurd, me agreeing with it, unpacking the legal arguments and then coming back to the absurdity.
• 15:17
  SPEAKER_02: Because I think that's what this is really about is this fundamental absurdity.
• 15:20
  SPEAKER_02: But but go ahead, Catherine, uh, tee us up for the legal issues.
• 15:24
  SPEAKER_00: Well, the law that was enacted um in Arizona happened after the 2020 elections.
• 15:30
  SPEAKER_00: And this is basically this is what the court case is based on.
• 15:33
  SPEAKER_00: Two things are at issue.
• 15:34
  SPEAKER_00: One, whether Arizona can require proof of citizenship when someone tries to register on a state election form.
• 15:41
  SPEAKER_00: And then two, whether within 90 days of an election the state can seek to remove non-citizens from the voter rules.
• 15:49
  SPEAKER_00: And again, somehow the Ninth Circuit uh two to one held that both provisions were unlawful, which again seems insane.
• 15:58
  SPEAKER_00: If you catch a non-citizen or citizen registering to vote a month before the election, there's simply nothing you can do about it because it's in this 90-day window.
• 16:08
  SPEAKER_00: But okay, let's start with the first one.
• 16:10
  SPEAKER_00: Uh the proof of citizenship requirement.
• 16:13
  SPEAKER_00: Josh Nilon, can you explain the legal issues there?
• 16:16
  SPEAKER_02: Well, I think it's helpful to start with the constitutional setup, the constitutional framework, and then get into the National Voter Registration Act, which of course is a statute, and then get into the Ninth Circuit opinion.
• 16:26
  SPEAKER_02: So just to start with the constitutional perspective.
• 16:29
  SPEAKER_02: It comes as a surprise to many people, but the founder's vision was that decisions about voting, even in federal elections, are mostly up to the states.
• 16:39
  SPEAKER_02: Uh uh, like, should property uh be required for someone to be eligible to vote?
• 16:45
  SPEAKER_02: Well, states uh started getting rid of property requirements in the early 1800s.
• 16:50
  SPEAKER_02: You know, should women be allowed to vote?
• 16:52
  SPEAKER_02: We had a constitutional amendment about that in 1920, but New Jersey as a state allowed women to vote as early as 1776 and then abolished it in 1807.
• 17:05
  SPEAKER_02: Uh should non-citizen voters.
• 17:07
  SPEAKER_02: It wasn't working out.
• 17:08
  SPEAKER_02: Yeah, it wasn't working out.
• 17:09
  SPEAKER_02: I don't know the history of that.
• 17:10
  SPEAKER_02: I'm curious.
• 17:11
  SPEAKER_02: I still am curious.
• 17:12
  SPEAKER_02: Uh, non-citizen voters, some states allowed non-citizens to vote in the 19th century.
• 17:17
  SPEAKER_02: So mostly isn't everything.
• 17:18
  SPEAKER_02: The founders left voting mostly to the states, but there is a provision, uh, Article 1, section four, which says, quote, the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the place of choosing senators.
• 17:42
  SPEAKER_02: So that is to say, you know, default authority is with the state, but uh Congress can override it.
• 17:48
  SPEAKER_02: There's also a provision in Article II the Congress may determine the time of choosing the electors and the date on which they shall give their votes, which day shall be the same throughout the United States.
• 17:58
  SPEAKER_02: So again, and that's for presidential elections.
• 18:02
  SPEAKER_01: And this will become important because if you'll notice, actually gives Congress less power.
• 18:07
  SPEAKER_01: And there's a provision we'll get back to that makes it very clear states get to choose how to appoint electors.
• 18:12
  SPEAKER_01: And so we'll get back to the presidential angle in a moment.
• 18:15
  SPEAKER_02: So over time, federal authority over this has grown.
• 18:18
  SPEAKER_02: In the 14th Amendment, we got the Equal Protection Clause, and that's led to a whole body of case law on equal voting rights.
• 18:25
  SPEAKER_02: The 15th Amendment, uh, no denying the right to vote based on race or color or previous condition of servitude.
• 18:32
  SPEAKER_02: The 19th Amendment, no denying the vote to women, the 26th Amendment, no denying the vote to people 18 or over.
• 18:39
  SPEAKER_02: And then we've gotten statutes that enforce these various uh uh laws like the Voting Rights Act of 1965, or what we'll be talking about today, the National Voting Registration Act of 1993.
• 18:51
  SPEAKER_02: So the big picture here is that state authority has been whittled away at over the centuries, but still voting is mostly a state matter, and it's meant by the Constitution to be mostly a state matter.
• 19:04
  SPEAKER_02: Elon, you want to take it away with the National Voter Registration Act?
• 19:08
  SPEAKER_01: Yeah, so mostly as Josh said, it's state matter, but Congress may by law alter right the time, place, and manners of how elections are held, right?
• 19:19
  SPEAKER_01: That's uh under at least congressional elections, slightly narrower presidential power, but we've glossed over that.
• 19:25
  SPEAKER_01: The federal Congress has glossed over that as well in the National Voter Registration Act.
• 19:29
  SPEAKER_01: So the question here is whether the National Voter Registration Act, enacted in 1993 or maybe four, uh, preempts the state law requirement for proof of citizenship.
• 19:39
  SPEAKER_01: So remember, for you've been with us from the beginning, there's the supremacy clause, federal law within the national government's enumerated powers is supreme over contrary state law.
• 19:47
  SPEAKER_01: So the question here is if um Arizona's requirement that if you register on a state form, which applies also to federal elections, so it's an important point that we'll come back to, um, whether uh the proof of citizenship requirement is preempted by the National Voter Registration Act.
• 20:02
  SPEAKER_01: Before I get there, I just wanted to say I did look up why we have the National Voter Registration Act, and uh it's kind of interesting.
• 20:10
  SPEAKER_01: This was hugely, hugely contested in the early 1990s.
• 20:14
  SPEAKER_01: George H.
• 20:15
  SPEAKER_01: W.
• 20:15
  SPEAKER_01: Bush actually vetoed it, and then of course Clinton, the next president, signed it.
• 20:19
  SPEAKER_01: Now, the theory that the problem they were trying to solve was the problem of low voter turnout.
• 20:24
  SPEAKER_01: So apparently voter turnout dropped below 50% in 1980.
• 20:29
  SPEAKER_01: It's like that doesn't seem crazy, or um uh, but in any event, in 1992, it went back up to historic norms.
• 20:36
  SPEAKER_01: It went back up to the it was the highest it had been in you know two, two, three decades.
• 20:41
  SPEAKER_01: Um, but so the argument was that people were being left out of the process by being unable to register to vote, right?
• 20:49
  SPEAKER_01: So it was like a turnout problem.
• 20:51
  SPEAKER_01: Uh now, of course, this the data turned out not to bear it out.
• 20:54
  SPEAKER_01: It turns out people who didn't register to vote are generally low propensity voters, voters who did not actually want to vote.
• 21:00
  SPEAKER_01: It turns out that registering to vote was really never a barrier to those who actually did want to vote.
• 21:06
  SPEAKER_01: So it turns out no um voter turnout increased as a result of the National Voter Registration Act.
• 21:12
  SPEAKER_01: But what it did do, and why George H.W.
• 21:14
  SPEAKER_01: Bush vetoed it, is it made it easier to commit fraud.
• 21:16
  SPEAKER_01: There's literally an administration statement of policy where he said, and I pulled this out because it's so great.
• 21:21
  SPEAKER_01: Um, let me find it.
• 21:22
  SPEAKER_01: It said, this is a George H.W.
• 21:24
  SPEAKER_01: Bush administration policy, why they opposed the bill.
• 21:27
  SPEAKER_01: It would increase the potential for corruption and vote fraud because it limits the state's ability to confirm independently the information contained in voter registration applications and severely restricts the state's ability to remove ineligible voters from the role, a problem compounded by inadequate penalties in current federal criminal law for electoral crimes and other forms of public corruption.
• 21:45
  SPEAKER_01: In fact, they said the whole thing gives it away because the the National Voter Registration Act exempts states that have same day voter registration.
• 21:54
  SPEAKER_01: The like the the the whole point is is to make it easy for people who can't prove that they're citizens to vote.
• 21:59
  SPEAKER_01: And that's literally what.
• 22:00
  SPEAKER_01: Uh it wasn't vetoed.
• 22:01
  SPEAKER_01: Yeah, go ahead.
• 22:03
  SPEAKER_02: Well, was that the okay, so um that blows my mind because it's like it this this game of like um where the reality is Democrats want non-citizens to vote, and the pretext is that they're trying to make sure that people without documents uh uh who are citizens can vote.
• 22:26
  SPEAKER_02: And of course, the accusation is a pre- the Democrats accuse Republicans of a pretext, too.
• 22:33
  SPEAKER_02: They say, you're claiming that you're trying to make sure citizens are voting, but actually that's a non-prom.
• 22:38
  SPEAKER_02: You're just trying to make sure that minorities and and other people uh who are poor don't get an opportunity to vote.
• 22:45
  SPEAKER_02: Like both sides accuse the other of pretext.
• 22:49
  SPEAKER_02: But underneath it, we're hypothesizing that it's all about non-citizens.
• 22:53
  SPEAKER_02: It's all about, you know, an effort to have fraudulent non, you know, voting by non-citizens.
• 22:58
  SPEAKER_02: Was that in place in 1993?
• 23:00
  SPEAKER_02: Like that whole structure of politics.
• 23:02
  SPEAKER_02: Have we been living with this for, you know, however long, 32 years or something, 33 years?
• 23:08
  SPEAKER_01: I I will say that the legislation was justified under Article I, Section Four, what you were reading, Congress's authority to alter the holding of elections.
• 23:17
  SPEAKER_01: If race was really it was a justification, right?
• 23:20
  SPEAKER_01: That was actually the underlying motivation.
• 23:22
  SPEAKER_01: But they relied on Article I, Section Four, because if they wanted to rely on the 14th or 15th Amendment, equal protection, abridging on you know, voting on the basis of race, they'd have to prove intentional discrimination or this disparate impact analysis, uh, which is certainly no longer probably not good law.
• 23:39
  SPEAKER_01: And back then it really wasn't good law either.
• 23:42
  SPEAKER_01: So just because it has a disproportionate effect doesn't mean it violates the 14th or 15th Amendment.
• 23:46
  SPEAKER_01: You know, it would have to be so disproportionate that it it raises this intentional discrimination idea that it must be a guise or pretext for intentional discrimination, which nobody could show.
• 23:57
  SPEAKER_01: Nobody could actually show based on the voter registration uh data.
• 24:01
  SPEAKER_01: And so uh it and it it turned out um that now all of this, I'm not an expert on this, it's just based on my reading.
• 24:08
  SPEAKER_01: One of the arguments for why they thought that this was discriminatory is because the percentage of the Hispanic voting age population that voted was low, was very low.
• 24:18
  SPEAKER_01: Well, it turns out because a lot of them weren't citizens, they were not calculating Hispanic citizens of voting age, they were calculating the Hispanic um voting age population, not whether they were also citizens.
• 24:29
  SPEAKER_01: So, like all of this was just a big ruse to do something.
• 24:33
  SPEAKER_01: To do something.
• 24:34
  SPEAKER_01: What?
• 24:34
  SPEAKER_01: I I guess that's what we started with.
• 24:36
  SPEAKER_01: That's sort of the big question.
• 24:38
  SPEAKER_01: But okay, let me go to the oh, go ahead.
• 24:40
  SPEAKER_02: Yeah, oh, I I was just gonna say it's interesting.
• 24:42
  SPEAKER_02: You know, so many of our contemporary politics that we think started in the 2000s, in fact, started in the 1990s.
• 24:49
  SPEAKER_02: Um, and uh this might be yet another instance of it.
• 24:53
  SPEAKER_02: But go ahead, let's get into the technical aspect of what I call them ridiculous, and Catherine agrees with me or vice versa.
• 24:59
  SPEAKER_01: Okay, uh so to our audience, now we get to the law technical legal part.
• 25:03
  SPEAKER_01: So again, the question is preemption.
• 25:05
  SPEAKER_01: Does federal law preempt the uh what Arizona tries to do here?
• 25:08
  SPEAKER_01: So what does federal law say?
• 25:10
  SPEAKER_01: It says that the states um must accept what are called federal forms.
• 25:15
  SPEAKER_01: So the NVRA, the National Voter Registration Act, for voting in federal elections has a specific federal form, and no proof of citizenship is allowed.
• 25:24
  SPEAKER_01: Okay, and so voters who fill this form, including in Arizona, can vote in federal elections, okay?
• 25:31
  SPEAKER_01: But they can't necessarily vote in state elections.
• 25:34
  SPEAKER_01: All right.
• 25:35
  SPEAKER_01: So there's no question that the actual federal form for federal-only elections, you can't do proof of citizenship.
• 25:41
  SPEAKER_01: Arizona did try, okay, uh 15 years ago to do this.
• 25:45
  SPEAKER_01: And the Supreme Court struck.
• 25:47
  SPEAKER_00: Sorry, really quick, Elon, you keep saying form.
• 25:50
  SPEAKER_00: In Minnesota, you just show up and you say, I agree that I am a citizen.
• 25:54
  SPEAKER_00: I I don't, I didn't even fill out a form the first time I went.
• 25:57
  SPEAKER_00: It's so loose, you just show up on the day of voting, same day registration.
• 26:01
  SPEAKER_00: So when you say, I mean, the standards must be really low, right?
• 26:04
  SPEAKER_01: Right.
• 26:05
  SPEAKER_01: So you probably um filled out what was called a state form.
• 26:09
  SPEAKER_01: Now, the state form could be even looser than the federal form.
• 26:13
  SPEAKER_01: As so it, so okay, in other words, there are three possible forms here.
• 26:17
  SPEAKER_01: Okay.
• 26:17
  SPEAKER_01: Form number one is a federal-only form.
• 26:20
  SPEAKER_01: You cannot have voter ID uh on that, on that form.
• 26:23
  SPEAKER_01: You cannot establish proof of citizenship.
• 26:25
  SPEAKER_01: Arizona tried.
• 26:26
  SPEAKER_01: The Supreme Court, Justice Scalia, struck it down.
• 26:29
  SPEAKER_01: Good for Justice Scalia.
• 26:30
  SPEAKER_01: Okay, there's really law there.
• 26:32
  SPEAKER_01: The NVRA is stupid, should never have been uh enacted without the proof of citizenship.
• 26:37
  SPEAKER_01: Arizona tried to do it, it was clearly preempted.
• 26:40
  SPEAKER_01: Now there are two other possible forms.
• 26:42
  SPEAKER_01: One is a state-only form, okay?
• 26:44
  SPEAKER_01: And the states can do whatever they want.
• 26:45
  SPEAKER_01: State-only elections are ruled by states, right?
• 26:48
  SPEAKER_01: Barring equal protection or something like that.
• 26:51
  SPEAKER_01: The problem is no one wants to do a state-only form.
• 26:54
  SPEAKER_01: Why?
• 26:54
  SPEAKER_01: Because then literally every citizen in your state would have to register on two different forms, a state form and a federal form.
• 27:00
  SPEAKER_01: Nobody wants to do that.
• 27:01
  SPEAKER_01: So what's at issue in this case is a state form that can also serve for federal election purposes, a single unified form that works for both.
• 27:11
  SPEAKER_01: And the question is: can Arizona require proof of citizenship on its state form that also will then authorize someone to vote in federal elections?
• 27:20
  SPEAKER_01: That's the question.
• 27:21
  SPEAKER_02: Yeah.
• 27:22
  SPEAKER_02: Okay, I just want to intervene here to clarify something that I think shows how crazy this case is.
• 27:27
  SPEAKER_02: So, okay, back to basics.
• 27:30
  SPEAKER_02: Non-citizens cannot vote in every state.
• 27:34
  SPEAKER_02: The National Voter Registration Act is a federal law meant to help people register to vote.
• 27:40
  SPEAKER_02: And the federal form does not like deny the federal form, it does not allow non-citizens to vote.
• 27:48
  SPEAKER_02: That would be illegal.
• 27:49
  SPEAKER_02: The federal form also does not um say that citizenship is irrelevant or fail to ask about it.
• 27:56
  SPEAKER_02: What the federal form does is it says check the box if you are a U.S.
• 28:00
  SPEAKER_02: citizen.
• 28:01
  SPEAKER_02: It's a check the box form.
• 28:02
  SPEAKER_02: And you have to sign it and you sign under penalty of perjury.
• 28:05
  SPEAKER_02: I am indeed a U.S.
• 28:06
  SPEAKER_02: citizen, but the federal form does not ask for proof.
• 28:11
  SPEAKER_02: Now, the form is good for federal elections, not for state elections.
• 28:15
  SPEAKER_02: That's what Elon was just saying.
• 28:17
  SPEAKER_02: Arizona made a form for both that does require proof of citizenship.
• 28:22
  SPEAKER_02: And the claim of the plaintiffs is because the federal form is sufficient, Arizona isn't allowed to ask for this additional proof of citizenship.
• 28:31
  SPEAKER_02: Arizona is not allowed to go beyond the federal standard of just check the box under penalty of perjury, don't ask to CID.
• 28:39
  SPEAKER_02: So this whole litigation is over a form.
• 28:43
  SPEAKER_02: No one denies the requirement of citizenship.
• 28:47
  SPEAKER_02: The question is whether Arizona's form can ask for proof when the federal form only asks for check the box.
• 28:53
  SPEAKER_02: And I just want to channel Catherine and say, this is stupid.
• 28:58
  SPEAKER_02: And as a law professor, I am already bored.
• 29:00
  SPEAKER_02: This whole thing makes me angry at my profession.
• 29:03
  SPEAKER_02: I mean, can I follow these arguments?
• 29:05
  SPEAKER_02: Of course I can follow these arguments.
• 29:07
  SPEAKER_02: Do I respect the very fact that my profession invents these arguments?
• 29:12
  SPEAKER_02: No, I think it's ridiculous.
• 29:14
  SPEAKER_00: And another one of the arguments that they have for this whole thing is that, like, you know, these numbers are so small.
• 29:20
  SPEAKER_00: We're talking about hardly any non-citizens voting in the election.
• 29:24
  SPEAKER_00: And they'll say, you know, when we bring up numbers like in Arizona, so to this day, okay, 19,000 Arizonans, more than the difference of the 2020 election, are only eligible to vote in federal elections because their citizenship could not be verified.
• 29:41
  SPEAKER_00: And they'll bring up on the left, you know, oh, this isn't that big, that's not that many people in the scheme of however many people live in Arizona.
• 29:47
  SPEAKER_00: It's a small amount.
• 29:49
  SPEAKER_00: Well, Biden won Arizona in 2020 by 10,457 votes.
• 29:54
  SPEAKER_00: Not to mention, here in Minnesota, there was a place where the entire legislature was decided by 300-sum votes.
• 30:02
  SPEAKER_00: And that is something that brought in things like a trans refuge state, a sanctuary state, all of these insane left-wing policies.
• 30:08
  SPEAKER_00: So when they tell you, you know, oh, these few votes don't matter, well, 350-ish votes in Minnesota mattered a hell of a lot.
• 30:16
  SPEAKER_00: So I hate, I hate that argument.
• 30:18
  SPEAKER_01: That's it, goes back to the question about, and again, the 19,000 people, as you said, Catherine, there there might be citizens.
• 30:26
  SPEAKER_01: Maybe every single one is citizen, but not one of them could prove that they're citizens, which goes back to the question of the harm to the polity.
• 30:34
  SPEAKER_01: You know, do you have confidence in the elections?
• 30:36
  SPEAKER_01: Are they in fact reserved to citizens of the United States when 19,000 voters in Arizona couldn't prove their citizenship, right?
• 30:44
  SPEAKER_01: And only and and the difference was 10,000 four, five, seven or whatever, right?
• 30:48
  SPEAKER_01: You said about 10,000.
• 30:49
  SPEAKER_01: So that's that's super crazy.
• 30:50
  SPEAKER_01: But okay, you two are both being very based.
• 30:52
  SPEAKER_01: Let me just wrap up the legal argument for a second, especially because I want to invoke the dissenter in the Ninth Circuit, who I'm gonna call a friend uh of the Rationally Based podcast, uh, Judge Patrick Boomate.
• 31:04
  SPEAKER_01: I say he's based.
• 31:05
  SPEAKER_01: Um, I'm actually friends, very friendly with him.
• 31:08
  SPEAKER_01: And he literally is based.
• 31:09
  SPEAKER_01: I mean, he's like one of the most based judges out there, uh, especially on the Ninth Circuit, though.
• 31:13
  SPEAKER_02: He is and a brilliant jurist, and a brilliant jurist.
• 31:16
  SPEAKER_02: I love Patrick Boomate.
• 31:17
  SPEAKER_02: Admire him.
• 31:18
  SPEAKER_01: That's what I meant by based.
• 31:20
  SPEAKER_01: Uh well he brilliantly shows why the answer is usually the based one.
• 31:25
  SPEAKER_01: Uh, and just to be clear, it's it's all law, as you'll see in a moment.
• 31:29
  SPEAKER_01: Okay, so if I may go technical, what is the argument here?
• 31:33
  SPEAKER_01: The argument is that the National Voter Registration Act says that the state forms must be equivalent to the federal forms.
• 31:42
  SPEAKER_01: But this is kind of okay, like I get it, I get it.
• 31:44
  SPEAKER_01: Normally equivalent if you didn't know anything else about the statute, which is gonna be a theme, right?
• 31:49
  SPEAKER_01: Means like equal, the same, identical, right?
• 31:51
  SPEAKER_01: On the other hand, the Supreme Court has said, and the NVRA clearly allows for individual state forms, right?
• 31:58
  SPEAKER_01: If they had to be identical to the federal form, why wouldn't you just supersede all state forms, right?
• 32:04
  SPEAKER_01: Now it's tricky, they could say, well, you could vary with respect to state stuff.
• 32:08
  SPEAKER_01: I mean, so you have to be able to vary the form somehow, as long as you are equivalent uh to the federal form.
• 32:14
  SPEAKER_01: Okay, it's not a terrible argument from Ma Familia Voda, but the response, I think, is something Josh hinted at before, which is the form is equivalent, right?
• 32:24
  SPEAKER_01: The eligibility is equivalent.
• 32:25
  SPEAKER_01: Both the federal government and the state governments do not allow citizens to vote.
• 32:30
  SPEAKER_01: They are equivalent in that respect.
• 32:32
  SPEAKER_01: The federal form says you can't require proof of citizenship, but you know, is requiring proof of citizenship on the state form, you know, inconsistent if all it is is proving an eligibility requirement.
• 32:46
  SPEAKER_01: So they are equivalent sort of in that respect.
• 32:48
  SPEAKER_01: Look, I don't know, actually pretty tricky.
• 32:52
  SPEAKER_01: It it's it it quite what does equivalent mean?
• 32:54
  SPEAKER_01: I I get it, it's kind of tricky.
• 32:56
  SPEAKER_01: They're gonna have to do some statutory interpretation here.
• 32:59
  SPEAKER_01: What's the purpose of the state form if they can't vary uh at all?
• 33:02
  SPEAKER_01: I actually think it's a hard question.
• 33:03
  SPEAKER_01: But when it's a hard question, all of us being equal, like do the rational thing, do the non-crazy thing, do the thing that allows the state, because again, remember, remember the implication here.
• 33:14
  SPEAKER_01: If they can't put this on the state form, it also means they can't prove eligibility for state elections, unless unless they have two separate forms, a state-only form and a federal only form.
• 33:25
  SPEAKER_01: And nobody wants to do that, right?
• 33:26
  SPEAKER_01: So it also disables the state from proving citizens for their own sort of election.
• 33:30
  SPEAKER_01: So again, does what does equivalent mean?
• 33:32
  SPEAKER_01: That's the issue technical, I guess, but that's what the statute says.
• 33:36
  SPEAKER_01: Do the base rational thing, I suppose.
• 33:39
  SPEAKER_01: Yeah, I I okay, so notice, folks, viewers, notice that somehow this question of like, can you by the way, was that was that F-O-L-X the way you said it, folks?
• 33:56
  SPEAKER_01: Just we're saying no, I'm sorry, I'm just become woke.
• 34:00
  SPEAKER_01: I'm sorry, I'm just I'm just kidding.
• 34:03
  SPEAKER_01: We're we're saying folks.
• 34:04
  SPEAKER_02: Notice viewers and listeners of our podcast, that somehow the question, which should be relatively straightforward of okay, you're allowed legally to um ask if someone is a citizen because they have to be a citizen.
• 34:17
  SPEAKER_02: Are you allowed to check their ID?
• 34:19
  SPEAKER_02: Somehow that has become a question about like what is the metaphysical nature of equivalence, right?
• 34:25
  SPEAKER_02: Somehow we're asking about like, in what sense is one form equivalent to another form?
• 34:31
  SPEAKER_02: And suddenly we're in, we're playing the game.
• 34:33
  SPEAKER_02: We're playing the game of lawfare instead of it instead of focusing on what should be the relevant question.
• 34:40
  SPEAKER_02: But okay, if I accept that we're playing the game of what is the nature of equivalence, what what do you think of this argument, Elon?
• 34:46
  SPEAKER_02: I just I want to test it out with you.
• 34:49
  SPEAKER_02: Um uh the constitutional structure here is that elections are by and large supposed to be determined by state law, right?
• 34:58
  SPEAKER_02: That's like an anchor we can revert to.
• 35:00
  SPEAKER_02: Unless there's clear federal preemption, you revert to state law on these matters.
• 35:06
  SPEAKER_02: Um, and in this case, we don't have a clear federal override of state law.
• 35:11
  SPEAKER_02: It's not as though uh federal law says affirmatively, thou shalt not, Arizona, thou shalt not states um ask for documentation of citizenship.
• 35:21
  SPEAKER_02: Instead, it simply doesn't require it on the form, and a side effect of that form is this argument about equivalence and this potential block to.
• 35:31
  SPEAKER_02: So here's my thought.
• 35:33
  SPEAKER_02: When the constitutional structure is such as to make state law the default, um, we should require more for federal preemption than a simple side effect of a form.
• 35:44
  SPEAKER_02: We should require something more like a clear statement by Congress that would show explicitly or implicitly its intent to preempt to contrary state law.
• 35:53
  SPEAKER_02: What do you think of that argument?
• 35:55
  SPEAKER_02: It's basically a clear statement rule for preemption.
• 35:59
  SPEAKER_01: So there actually are cases that say that.
• 36:01
  SPEAKER_01: Um, not only is there generally a presumption against preemption, which itself is sort of a clear statement rule, but specifically in the election context.
• 36:08
  SPEAKER_01: And the way I know this, Josh, is because that is what Mississippi relied on in the election day case.
• 36:14
  SPEAKER_01: So the RNC was arguing that election day requires that all the votes be received, right, by the registrar, voters, or whatever, not the registrar, but the counter, the the counters, the election board or whatever.
• 36:26
  SPEAKER_01: And Mississippi said, no, um, the fact that election day is on a specific day doesn't specifically address you know the state's power to allow mail-in voters to be votes to be received in later.
• 36:39
  SPEAKER_01: And therefore, under this presumption against displacing state law, um, that was precisely the argument that Mississippi made.
• 36:46
  SPEAKER_01: So it's a it's a it's a very good one.
• 36:47
  SPEAKER_01: And in fact, one at the Supreme Court, though, you know, the Republicans didn't love it in that case.
• 36:52
  SPEAKER_02: It would be another way of getting at the conclusion that you were gesturing to, right?
• 36:56
  SPEAKER_02: So instead of saying, well, the question of equivalence is close, let's go with the based rational conclusion.
• 37:03
  SPEAKER_02: It's saying the question of equivalence is close, let's require a clear statement on the part of the federal government, giving the underlying uh constitutional uh structure.
• 37:13
  SPEAKER_01: I love it.
• 37:13
  SPEAKER_01: And that might actually be what the law is, but I'm gonna go more based than you, and I'm gonna say, because both in the election day, you know, it's a little bit ambiguous.
• 37:22
  SPEAKER_01: What does election day mean?
• 37:24
  SPEAKER_01: Um, does it actually preempt this or not?
• 37:25
  SPEAKER_01: It's not specific, it's not clear.
• 37:27
  SPEAKER_01: And similarly, here, what does equivalent mean?
• 37:30
  SPEAKER_01: It's not clear, not specific.
• 37:31
  SPEAKER_01: In both cases, I would do the option that gives confidence in elections.
• 37:36
  SPEAKER_01: And in this case, it would be giving states the power to uh allow voters.
• 37:40
  SPEAKER_01: And in the other case, it would be uh election day should all the ballots should be received to again, you know, reduce the opportunities for fraud.
• 37:47
  SPEAKER_01: So I I know we started on a rocky start in this podcast, people thinking you two are more base than I am, but now I have taken the base crown, if that's okay.
• 37:56
  SPEAKER_00: Defer to what is going to uh ensure that people are confident in the results of our elections.
• 38:03
  SPEAKER_00: Is that what you're saying?
• 38:04
  SPEAKER_01: Exactly.
• 38:04
  SPEAKER_01: And I and I'm not just being flippant about it.
• 38:06
  SPEAKER_01: I mean, I guess I was joking a little too much with the baseness thing.
• 38:09
  SPEAKER_01: But it's like that's what it should laws that are ambiguous should be sensibly interpreted.
• 38:15
  SPEAKER_01: Um, and uh this I think is uh the sensible answer in both cases.
• 38:20
  SPEAKER_02: So I think you had a different idea, right?
• 38:23
  SPEAKER_01: When we were talking about this, you had which I really liked about um uh uh is this really about holding elections or is it about something else?
• 38:31
  SPEAKER_02: Is it yeah, so I thought of a second argument.
• 38:34
  SPEAKER_02: Um and uh the the way the way it's supposed to work is state law dominates as to who can vote.
• 38:40
  SPEAKER_02: That's why New Jersey could enfranchise women in 1776, right?
• 38:44
  SPEAKER_02: Or all the states could enfranchise individuals who don't own property uh in the early 1800s, right?
• 38:52
  SPEAKER_02: So states decide who votes.
• 38:55
  SPEAKER_02: The federal Congress has an override with respect to the time, place, and manner of elections, but not with respect to who votes.
• 39:03
  SPEAKER_02: So my thought is this isn't time, place, and manner.
• 39:07
  SPEAKER_02: This is checking non-citizens, checking to see if someone is a citizen or a non-citizen.
• 39:12
  SPEAKER_02: That's a who votes question.
• 39:14
  SPEAKER_02: It's a qualifications to vote question.
• 39:16
  SPEAKER_02: So maybe the NVRA doesn't fall within uh Congress's authority in that respect at all.
• 39:24
  SPEAKER_02: It actually exceeds Congress's authority because it intrudes on the state's exclusive constitutional authority to decide who votes.
• 39:32
  SPEAKER_02: So I looked it up and I um intertribal council actually addressed this argument.
• 39:37
  SPEAKER_02: Uh, this is the 2000, was it 13 or 14?
• 39:40
  SPEAKER_02: It was like 15 years ago, um, this uh decision from the Supreme Court.
• 39:45
  SPEAKER_02: Arizona argued that it as a state has the constitutional authority to establish the qualifications for voting.
• 39:52
  SPEAKER_02: Uh, and Scalia in the majority said, it's true that the elections clause empowers Congress to regulate how federal elections are held, but not who may vote in them.
• 40:03
  SPEAKER_02: So he agrees with the premise.
• 40:05
  SPEAKER_02: Scalia then went on to what struck me as a very, very strange argument to the effect that Arizona has an alternative means of vindicating its constitutional authority.
• 40:18
  SPEAKER_02: If it thinks that the NVRA has intruded on its authority to determine who votes, its proper recourse is to go to the Federal Elections Assistance Commission, demand that they alter the vote, the form rather, and sue them if they don't.
• 40:32
  SPEAKER_02: And that seems just crazy to me.
• 40:34
  SPEAKER_02: And Thompson and Alito agreed, and they both dissented, and they both argued that this is fundamentally a who votes question.
• 40:41
  SPEAKER_02: So I'm wondering if that was the path we should have gone down all along, that uh the better argument here is um determining citizenship as who votes, and the federal authority, the federal government has no authority over it whatsoever.
• 40:54
  SPEAKER_01: I like it.
• 40:55
  SPEAKER_01: I like it.
• 40:56
  SPEAKER_01: I mean, a lot of the NVRA is time, place, and manner, like register voters, and we should have voter registration and you should update them and so on uh in certain ways.
• 41:07
  SPEAKER_01: But I agree that this transgresses the boundary and becomes less about holding elections.
• 41:11
  SPEAKER_01: And if you're if you're preventing a state, disabling a state from proving that you're actually eligible, you're actually altering the body of the people who can participate.
• 41:19
  SPEAKER_01: And that is not holding election.
• 41:21
  SPEAKER_01: That is the mode of appointment, which the states expressly have under the Presidential Elector Clause, by the way.
• 41:27
  SPEAKER_01: And by implication, in terms in terms of you know, with respect to what Congress can't regulate, because what based on what it is given to regulate, right?
• 41:34
  SPEAKER_01: The manner of holding uh holding elections, um, the people have the power to determine who participates in the election, both congressional and presidential.
• 41:44
  SPEAKER_01: Uh, I I like it.
• 41:45
  SPEAKER_01: I like it.
• 41:46
  SPEAKER_01: I forgot about that part in the of the Scalia opinion that does strike me as um, you know, because initially I was favorable to Scalia, right?
• 41:52
  SPEAKER_01: I said, look, equivalent is equivalent, yeah, or not equivalent, I'm sorry, but the federal form is very specific.
• 41:56
  SPEAKER_01: But so was it like a ripeness question or like administrative remedies question?
• 42:01
  SPEAKER_01: I mean, that's what I'm saying.
• 42:02
  SPEAKER_02: No, ordinarily Scalia's agree or disagree, ordinarily Scalia's drafting is so clear.
• 42:08
  SPEAKER_02: He's such a wonderful legal craftsman.
• 42:11
  SPEAKER_02: But in this case, I thought his argument was sort of unclear and in substance just very, very strange.
• 42:16
  SPEAKER_02: What he seemed to be saying was that um uh the federal form on its ordinary meaning would be taken to preempt contrary state law.
• 42:29
  SPEAKER_02: And under those circumstances where ordinary meaning would favor preemption, um the state should have to seek recourse for its constitutional authority by an alternative means than striking down the form, the federal form.
• 42:44
  SPEAKER_02: So I thought that was a very strange argument, normally sympathetic to Scalia.
• 42:48
  SPEAKER_02: In that case, I thought he really messed it up.
• 42:51
  SPEAKER_00: Well, let's move on to another aspect of this uh case, an interesting wrinkle here.
• 42:57
  SPEAKER_00: There was a sue and settle component, um, uh one of our favorite things to talk about on this podcast.
• 43:02
  SPEAKER_00: Apparently, in 2018, the Secretary of State in Arizona, who was a Republican and the Maricopa County recorder, a Democrat, settled with the uh League of United Latin American Citizens of Arizona and they entered into consent decree not to enforce similar proof of citizenship requirements.
• 43:23
  SPEAKER_00: They agreed instead that the Secretary of State would try to verify citizenship independently, even if proof of citizenship wasn't provided.
• 43:30
  SPEAKER_00: And if they could establish citizenship, they would go ahead and register the voter.
• 43:35
  SPEAKER_00: So the question here seems to be whether a consent decree between a county and a state official in 2018 can somehow prevent a future legislature from passing a law that contradicts that settlement?
• 43:50
  SPEAKER_00: How is that a question?
• 43:52
  SPEAKER_01: Another crazy part of the Ninth Circuit, right?
• 43:54
  SPEAKER_01: The Ninth Circuit held that it was binding today, just doesn't make uh any sense for two reasons.
• 43:59
  SPEAKER_01: One is Is it is black letter law.
• 44:02
  SPEAKER_01: It is black letter natural law.
• 44:05
  SPEAKER_01: Okay.
• 44:05
  SPEAKER_01: There is so few black letter natural law principles.
• 44:08
  SPEAKER_01: And I kind of joke a little black letter, but like, you know, self-defense and self-preservation.
• 44:13
  SPEAKER_01: That's I think a black letter, you know, natural law principle.
• 44:15
  SPEAKER_01: One legislature cannot alienate the powers of a future equivalent legislature.
• 44:20
  SPEAKER_01: Okay, so the Congress today can't pass a law, say no future Congress shall repeal this law.
• 44:25
  SPEAKER_01: You can't do that.
• 44:27
  SPEAKER_01: You need a higher legal authority to do that.
• 44:29
  SPEAKER_01: And yet here they say a consent decree between two officials who are no longer in office and Lulak, who by the way is a repeat player in election law cases and voting rights cases, that alienates the legislative power of the state.
• 44:40
  SPEAKER_01: It is totally preposterous.
• 44:42
  SPEAKER_01: This this should be overturned just because there's no reason this um should should bother people in the future.
• 44:48
  SPEAKER_02: This totally broke my brain.
• 44:49
  SPEAKER_02: It broke my brain.
• 44:50
  SPEAKER_02: It would be it would be like if I um entered into a consent decree with the Department of Justice um not to um, you know, I don't know, regulate my um healthcare business or regulate my bank or something like that.
• 45:08
  SPEAKER_02: And that was taken to permanently obviate Congress's power to regulate interstate commerce.
• 45:13
  SPEAKER_02: Like, no, the system doesn't work that way.
• 45:16
  SPEAKER_01: Yeah, and in this case, don't forget injunctions, like the the Secretary of State and the recorder are no longer in office.
• 45:21
  SPEAKER_01: They are different secretaries of state.
• 45:23
  SPEAKER_01: An injunction runs to the office holder, not to the office, actually.
• 45:28
  SPEAKER_01: So I who is it, Lee maybe and uh Adrian Fontes?
• 45:32
  SPEAKER_01: I can't remember who the Secretary of State was, but Adrian Fontes was the recorder.
• 45:35
  SPEAKER_01: The injunction and the settlement was with them.
• 45:37
  SPEAKER_01: They're not in office anymore, right?
• 45:39
  SPEAKER_01: So it's a new secretary of state and it's a new law, and it's a new law.
• 45:43
  SPEAKER_01: So the consent decree is totally irrelevant.
• 45:45
  SPEAKER_01: That was crazy.
• 45:46
  SPEAKER_01: But okay, Catherine, removal of non-citizens.
• 45:48
  SPEAKER_01: That's the second part of this case.
• 45:49
  SPEAKER_01: I promise to our listeners, third part of the case.
• 45:52
  SPEAKER_01: Third part of the case, right?
• 45:53
  SPEAKER_01: Because the consent decree was the second part of the case.
• 45:55
  SPEAKER_01: Third part of the case, removal of non-citizens from the voter rolls.
• 45:58
  SPEAKER_01: I promise we have 20 more minutes.
• 45:59
  SPEAKER_01: We will get to everything we wanted to talk about today and stay stick around.
• 46:03
  SPEAKER_01: Okay, you will not want to miss it.
• 46:04
  SPEAKER_01: Catherine, set us up.
• 46:05
  SPEAKER_00: Okay, so this is that second part I mentioned earlier, but we added a third.
• 46:10
  SPEAKER_00: Uh, can they remove within 90 days of an election non-voters from the voter rolls?
• 46:15
  SPEAKER_00: I say within 90 days because the National Voter Registration Act says, quote, a state shall complete not later than 90 days prior to the date of a primary or general election for federal office any program, the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.
• 46:35
  SPEAKER_00: And so the Ninth Circuit ruled that, well, non-citizens are ineligible voters, and therefore the state cannot remove ineligible voters within 90 days of the election.
• 46:47
  SPEAKER_00: This whole thing is very confusing to me.
• 46:49
  SPEAKER_00: I don't really understand why this was a law in the first place, what this serves, what purpose this serves.
• 46:54
  SPEAKER_00: Um, like so people weren't, I don't know if the voters are ineligible.
• 46:57
  SPEAKER_00: Why does it matter if you're getting rid of them from the voter rolls within 90 days of the election?
• 47:02
  SPEAKER_01: Yeah, this is another, as Josh said, the structure of this conversation.
• 47:06
  SPEAKER_01: I will tell you the legal stuff.
• 47:07
  SPEAKER_01: And it's like, this is just obvious.
• 47:09
  SPEAKER_01: Okay, so as an initial matter, as Catherine said, the National Voter Registration Act, which requires registration and so on, says you can't clean up the roles effectively, right, within 90 days of an election.
• 47:18
  SPEAKER_01: And the theory is, you know, this will make it difficult for voters who are believed to have moved or not voted for a while or with criminal convictions to assert their right to vote if the state is mistaken about that.
• 47:29
  SPEAKER_01: Sort of that's that's the theory here.
• 47:31
  SPEAKER_01: But it was applied to people who aren't eligible in the first place, to totally ineligible uh uh to alien aliens who are not to non-citizens, right?
• 47:40
  SPEAKER_01: Um, who are not allowed to vote.
• 47:41
  SPEAKER_01: So the argument uh against this or in favor of uh the challengers, again, is plausible, okay, based on the language you just read, Catherine.
• 47:50
  SPEAKER_01: But it's only plausible if you know literally nothing else about the statute, okay?
• 47:56
  SPEAKER_01: The statute says that the state must register eligible applicants, okay?
• 48:02
  SPEAKER_01: So a state has no power to ever have registered non-eligible voters, namely illegal aliens or non-citizens, even could be perfectly lawfully here, right?
• 48:13
  SPEAKER_01: And so what the statute does is it says the state must register eligible voters.
• 48:18
  SPEAKER_01: And then if for some reason they become ineligible, because they moved to another state.
• 48:23
  SPEAKER_01: Okay.
• 48:23
  SPEAKER_01: And so they're ineligible now to vote in your state, even though they otherwise were eligible, or they have a criminal conviction, or historically, if they didn't vote for several elections and might be dead, right?
• 48:34
  SPEAKER_01: The state could, in other words, a previously eligible citizen voter could become ineligible.
• 48:40
  SPEAKER_01: And the purpose of the law was to say you can't make those changes within 90 days of an election.
• 48:45
  SPEAKER_01: And but as Judge Boomate in dissent explained, this has nothing to do with voters who were never eligible in the first place because they were non-citizens.
• 48:55
  SPEAKER_01: So he would interpret the statute holistically and say it was never the intent or purpose of this to prevent a state from removing from the roles a non-citizen who was never eligible to register in the first place, because they never should have been registered under the statute, whereas everyone else could have been registered and was properly registered, but became ineligible.
• 49:14
  SPEAKER_01: I think this is a dynamite argument for the RNC.
• 49:16
  SPEAKER_01: I think Judge Boomate's logic is totally impeccable.
• 49:19
  SPEAKER_01: And I think this will be uh the Supreme Court will go with Boomate here.
• 49:22
  SPEAKER_01: But again, the answer seems obvious, doesn't it?
• 49:26
  SPEAKER_00: Mm-hmm.
• 49:27
  SPEAKER_00: Yeah, now my brain's a little broken too.
• 49:29
  SPEAKER_00: But yeah, I think so.
• 49:31
  SPEAKER_00: Uh I mean, I don't know.
• 49:32
  SPEAKER_00: This is all a little swampy for me, but maybe we should move on to the last issue because there is one more thing I want to talk about when it comes to this.
• 49:38
  SPEAKER_00: I mean, there's lots of other issues involved in this case, but those petitions haven't uh been granted yet.
• 49:43
  SPEAKER_00: One that I found particularly interesting was that Arizona's law specifically required proof of citizenship to vote in presidential elections, which introduces a constitutional complication.
• 49:55
  SPEAKER_00: Um, that's because although the NVRA does require the use of federal forms for federal elections, and the NVRA does include presidential elections within its scope, the constitution does not seem to give Congress the power to tell states how to run their presidential elections.
• 50:12
  SPEAKER_00: So, from what I understand, the clause you mentioned earlier, where the states can regulate the time, place, and manner of elections, but Congress can alter those regulations applies to the House and Senate races.
• 50:24
  SPEAKER_00: It applies to congressional races, it does not apply to presidential races.
• 50:29
  SPEAKER_00: I'd never really thought of this distinction before, but I guess it makes sense.
• 50:32
  SPEAKER_00: Instead, presidential races are governed by Article II of the Constitution, which provides that each state shall appoint in such manner as the legislature thereof may direct a number of electors.
• 50:44
  SPEAKER_00: And then it says the Congress may determine the time of choosing the electors and the day on which they shall give their votes.
• 50:50
  SPEAKER_00: So states get total control except as to timing and day.
• 50:56
  SPEAKER_00: Okay, so I suppose the question here is if the NVRA really did preempt Arizona's voter ID law in this respect, wouldn't it be unconstitutional anyway?
• 51:07
  SPEAKER_01: So it turns out that this is Josh's first theory or second theory.
• 51:12
  SPEAKER_01: I don't remember which theory it was, right?
• 51:13
  SPEAKER_01: The this argument that the NVRA, if it really does this thing, actually goes beyond Congress's power to regulate elections.
• 51:20
  SPEAKER_01: Now it's even clearer in the presidential context, right?
• 51:25
  SPEAKER_01: Because Congress's power is even narrower, and the states explicitly are given the path the manner of appointment of electors.
• 51:32
  SPEAKER_01: And basically, um, what uh Judge Boumate, I think, explains um is so so the majority in the Ninth Circuit, the best argument on their side is to say uh this has nothing to do with the manner of the appointment of electors.
• 51:48
  SPEAKER_01: Um voter eligibility or proof of eligibility doesn't have anything to do um with appointment.
• 51:54
  SPEAKER_01: Appointment is um selection, right?
• 51:57
  SPEAKER_01: The Ninth Circuit accepts this.
• 51:58
  SPEAKER_01: Does the legislature appoint presidential electors?
• 52:01
  SPEAKER_01: Do you do it by popular vote?
• 52:03
  SPEAKER_01: Do you do it through, you know, um male property owners?
• 52:06
  SPEAKER_01: That is the mode of appointing.
• 52:08
  SPEAKER_01: But Judge Boomate actually channeled Josh earlier in this podcast, right?
• 52:13
  SPEAKER_01: Judge Boomate basically said, no, this is actually regulating the mode of appointment because if you prevent them from uh determining eligibility to vote, uh, then you are affecting who basically gets to vote for president, right?
• 52:25
  SPEAKER_01: He said if the state is allowed to have the legislature appoint presidential electors, if it's allowed to have a popular vote, it's allowed to do anything in between.
• 52:33
  SPEAKER_01: It could let only a certain proportion of the population vote for president.
• 52:37
  SPEAKER_01: And uh therefore it should be able to prove uh and establish eligibility or proof requirements uh for presidential uh election.
• 52:45
  SPEAKER_01: So it's actually kind of like Josh's argument.
• 52:48
  SPEAKER_01: Josh would take it further, and Josh would apply it also to congressional and elections, I guess, right?
• 52:54
  SPEAKER_01: Um, but Bumate uh argued that this petition has not, however, been granted.
• 52:59
  SPEAKER_01: Uh and so we don't know if the Supreme Court uh will take it.
• 53:02
  SPEAKER_01: Uh but uh I think it's uh pretty clear that states have broad power to regulate presidential elections and determine who appoints, and therefore should be able to limit it to citizens and prove that, I think.
• 53:13
  SPEAKER_01: Josh, what's your big takeaway on this case?
• 53:15
  SPEAKER_02: Yeah, I want to try presenting a thought which is kind of uh more philosophical.
• 53:21
  SPEAKER_02: It's what I think is really the meaning of this case for larger thinking about politics.
• 53:26
  SPEAKER_02: Um it's about complexity and political power.
• 53:31
  SPEAKER_02: So, as I've indicated, as Catherine has indicated several times, there's something ridiculous about this case.
• 53:37
  SPEAKER_02: Uh, the substantive legal issue is perfectly clear.
• 53:41
  SPEAKER_02: And then some maddening complexity, uh, again, 156 pages, six categories of issues, 14 separate issues, all comes down to, you know, a check the box form and the significance of like check the box forms.
• 53:56
  SPEAKER_02: Can you, can you, uh, can a state insist that you prove the thing that you're checking the box for?
• 54:01
  SPEAKER_02: And it just seems crazy, right?
• 54:03
  SPEAKER_02: I don't think that's coincidence.
• 54:06
  SPEAKER_02: There's a group of people who have an interest, a political party, and the lawyers on their side who have an interest in creating that complexity in order to seize political power.
• 54:17
  SPEAKER_02: So American law just tends to create these kinds of games.
• 54:21
  SPEAKER_02: And even if you think the game is ridiculous, you have to play it and take up the arguments and try to be the more skillful player.
• 54:28
  SPEAKER_02: And if you want to step out of the game, somehow it seems impossible.
• 54:31
  SPEAKER_02: Somehow you find yourself inside the arguments, arguing about like the nature of equivalence between two kinds of forms or something like that.
• 54:39
  SPEAKER_02: So I want to distinguish two kinds of complexity here.
• 54:43
  SPEAKER_02: I alluded to this earlier.
• 54:44
  SPEAKER_02: There's complexity which is warranted by the subject matter, right?
• 54:48
  SPEAKER_02: Fluid dynamics is complex because fluid dynamics really are complex.
• 54:53
  SPEAKER_02: Uh, there's another kind of complexity that is used as a technique of political power.
• 54:59
  SPEAKER_02: Uh, and it's a method by which intellectuals and experts and specialists uh try to pull an issue out of the democratic political realm where people are naturally using the language of common sense and pull it into their zone of expertise where they can start to exert power over it.
• 55:19
  SPEAKER_02: And this is an extremely effective technique of politics in our culture, in our political culture, because America is poised on this precipice between democracy and governance by experts.
• 55:33
  SPEAKER_02: So take gender medicine, right?
• 55:35
  SPEAKER_02: Pediatric gender medicine.
• 55:37
  SPEAKER_02: Um, common sense says, well, we're dealing here with a confused kid or a depressed kid or something like that.
• 55:44
  SPEAKER_02: Ah, no, say the medical experts.
• 55:46
  SPEAKER_02: This is gender dysphoria.
• 55:48
  SPEAKER_02: And you have to review our studies, and you have to uh be fluent in our mode of discourse in order to dispute the medical judgment that we're dealing with gender dysphoria.
• 55:59
  SPEAKER_02: Uh, it happens the same thing happens all the time with economics issues, tariffs or minimum wage or uh any number of other uh um regulatory issues.
• 56:09
  SPEAKER_02: And of course, lawyers do it too.
• 56:10
  SPEAKER_02: Maybe lawyers do it best.
• 56:12
  SPEAKER_02: Lawyers are experts at taking political issues where they have lost, right?
• 56:16
  SPEAKER_02: Lawyers on either side take a political, it's a game.
• 56:19
  SPEAKER_02: You take a political issue that you've lost.
• 56:22
  SPEAKER_02: There should be clear-cut political action at that point, but what do you do?
• 56:27
  SPEAKER_02: Uh you complexify it, right?
• 56:30
  SPEAKER_02: I guess the technical word would be the ordinary term would be complicate, but complexify feels like it has the malicious intent that I mean here.
• 56:39
  SPEAKER_02: What you do is you deliberately make it as complicated as possible and legalistically complicated in order to move it into the new space of decision where the sp where the decision maker is a court, and now you're searching for a political judge and giving that judge, that sympathetic judge, cover to take your position.
• 56:59
  SPEAKER_02: So this is a misuse of the legal system, but more deeply, it's a misuse of intellectualism itself.
• 57:06
  SPEAKER_02: Um, instead of illuminating and dispelling complexity and replacing it with clarity, it's a process of people with high IQs using their intellects to create complexity in order to take political power.
• 57:21
  SPEAKER_02: And so I'm trying to sound some populist themes here.
• 57:24
  SPEAKER_02: There's a long tradition of anti-intellectual populism, and I have some sympathy for it.
• 57:29
  SPEAKER_02: Uh, I'm not fundamentally against intellectualism, real intellectualism, real scholarly expertise.
• 57:36
  SPEAKER_02: I mean, it's a beautiful thing, it brings light to a dark world.
• 57:41
  SPEAKER_02: But there's a kind of corruption of it, which is about creating complexity for the sake of political power.
• 57:48
  SPEAKER_02: And I think what we need to do on the right is be vigilantly aware of that tendency and insistent on distinguishing, you know, sort of good uses of the intellectual capacity from bad ones.
• 58:01
  SPEAKER_02: And my best, you know, my my best antidote to this political process is keep common sense front and center.
• 58:12
  SPEAKER_02: Don't be seduced by this unwarranted complexity.
• 58:15
  SPEAKER_02: But I don't know, can we do better than that?
• 58:17
  SPEAKER_02: Is that is there a better way out of the legal gamesmanship?
• 58:22
  SPEAKER_01: I just wanted to amplify, uh, not complexify, amplify the point that you just made, Josh, because it strikes me that this is what historians do when they try, academic historians, when they try to say lawyers shouldn't be able to do history and uh history should be relevant to originalism.
• 58:38
  SPEAKER_01: Say, well, a proper historian will understand all the complexities of history and the complexities of the archive and the silent voices and the methodological problems.
• 58:47
  SPEAKER_01: And it's like, yeah, all those things are useful to know, but it doesn't mean historical knowledge is impossible to obtain and that it's useless.
• 58:53
  SPEAKER_01: I mean, if that was true, nobody would use history for anything.
• 58:56
  SPEAKER_01: And of course, as we all learned in grade school, if you don't know history, you're doomed to repeat it.
• 59:00
  SPEAKER_01: But I guess what the academic historian would say is history is so complex, only we understand it.
• 59:05
  SPEAKER_01: The masses are nevertheless doomed to repeat history.
• 59:07
  SPEAKER_01: Like it's preposterous.
• 59:09
  SPEAKER_01: They make it so complex that only they, that you have to uh, you know, that only they and their views and their spins on it are valid.
• 59:17
  SPEAKER_01: And so I I totally, I totally get it.
• 59:19
  SPEAKER_01: I totally agree.
• 59:20
  SPEAKER_01: And um, whether that's happening here, I don't know.
• 59:24
  SPEAKER_01: I mean, they're clearly trying, I do think there's pretext.
• 59:27
  SPEAKER_01: I don't know how many people believed in 1994 or 1993 that they were actually solving a problem.
• 59:34
  SPEAKER_01: Certainly the problem that they said that they were gonna solve.
• 59:36
  SPEAKER_01: I certainly don't think I don't know how many people who accuse Republicans of trying to suppress voters actually believe that.
• 59:44
  SPEAKER_01: Um, you know, so that they're so trying to suppress they they are trying to suppress non-eligible voters.
• 59:50
  SPEAKER_01: I mean, that's that's true, right?
• 59:52
  SPEAKER_01: I don't know if they actually believe that they're trying to suppress eligible voters because they think people without IDs are more likely to vote for Democrats.
• 59:59
  SPEAKER_01: I like, why is that actually true, right?
• 1:00:02
  SPEAKER_01: I mean, to go back to Catherine's point about like who doesn't have a birth certificate?
• 1:00:06
  SPEAKER_01: It's the person born in the trailer in Appalachia.
• 1:00:08
  SPEAKER_01: They're not voting for Democrats.
• 1:00:09
  SPEAKER_01: Like, you know, give me a break.
• 1:00:11
  SPEAKER_01: Anyway, super, super thoughtful.
• 1:00:13
  SPEAKER_01: Um, yeah, Josh.
• 1:00:15
  SPEAKER_02: Yeah, I just want to respond to that real quick.
• 1:00:17
  SPEAKER_02: Okay, I think that many, many people uh who are progressive or liberal or or on the left in any respect quite genuinely and sincerely believe that Republicans are trying in the in the voting voter ID context, what Republicans are trying to do, they think, is suppress the votes of the poor and the minority.
• 1:00:38
  SPEAKER_02: And I think many Republicans, conservatives, people broadly on the right, think that what the left is trying to do in reality is um allow non-citizens to vote because they think non-citizens would tend to vote for Democrats, right?
• 1:00:54
  SPEAKER_02: So both sides sincerely believe whatever is worst about the other side, right?
• 1:01:01
  SPEAKER_02: And you know what?
• 1:01:02
  SPEAKER_02: I think that's a great political debate to have, and we should have it out in the open.
• 1:01:07
  SPEAKER_02: The part of this that seems ridiculous to me is having it by means of an argument about the National Voter Registration Act and the federal form and whether the federal form preempts state ID checking.
• 1:01:20
  SPEAKER_01: I couldn't agree more.
• 1:01:22
  SPEAKER_00: Josh, I think you won.
• 1:01:24
  SPEAKER_00: Were there a competition on this episode of who was most based?
• 1:01:27
  SPEAKER_00: I think you won hands down.
• 1:01:29
  SPEAKER_00: I think you're 100% right.
• 1:01:31
  SPEAKER_00: And I think the only thing I would say to add to that is the optimistic outlook that now more than ever, thank you, President Trump, I think, first and foremost, people are not buying into the trusty experts.
• 1:01:41
  SPEAKER_00: They're not playing the game.
• 1:01:43
  SPEAKER_00: They are understanding that their common sense and what they know to be true about in the example you gave men and women is simply true.
• 1:01:51
  SPEAKER_00: And you don't need to buy into calling it gender-affirming care to have that conversation.
• 1:01:55
  SPEAKER_00: It's just a way to keep people who they disagree with, they being the experts, out of the conversation.
• 1:02:01
  SPEAKER_01: So I love that they basically expertized, they expertized common knowledge.
• 1:02:06
  SPEAKER_01: And so finally the people were able to catch on to what they were doing.
• 1:02:10
  SPEAKER_01: What a lovely point to end on.
• 1:02:11
  SPEAKER_01: That is all the time we have uh today.
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