Checks and Balances Podcast - Episode 8

Paul Rosenzweig: Hello, and welcome to Checks & Balances: Threats to this American Election.

This weekly podcast is sponsored by Checks & Balances, a group of conservative and libertarian lawyers dedicated to bolstering the rule of law and opposing the degradation of American legal norms.

My name is Paul Rosenzweig, and I'm your host.

Joining me today as my guests on the podcast are Richard Bernstein and Trevor Potter.

Our topic today is most timely.

We'll discuss election law and litigation regarding the elections.

From our perspective, fostering free and fair elections is not a partisan issue, not a right left issue, not a conservative or libertarian or liberal or progressive issue.

It's an American issue.

And so, this podcast.

We aspire to offer accurate information that captures the ground truth about our electoral process.

We'll speak about what the law entails and how to make sure that every legal vote is counted.

We'll talk about what is at stake in the election and why elections have consequences.

Joining me today, as I said, are Richard Bernstein and Trevor Potter.

Richard Bernstein is a lawyer in California and a former law clerk for Justice Antonin Scalia, who has turned his interest in textualism to election law issues.

Recently he represented a number of Checks & Balances lawyers in an Amicus brief to the Supreme Court regarding the Pennsylvania election law.

Trevor Potter is a lawyer, former Commissioner and Chairman of the United States Federal Election Commission.

He is the Founder and President of the Campaign Legal Center, a nonprofit organization which works in the area of campaign finance and elections, political communication, and government ethics.

Gentlemen, welcome to the podcast.

The big news the past week was the continued engagement by the U.S. Supreme Court in election year mechanics.

We'll get to the big Pennsylvania case in a few minutes, but I'd like to set that aside for a second and look at one of the other big cases from last week which was in, of all places, Alabama.

A federal district court judge had ordered Alabama to accept curbside voting, from his perspective, so that those with disabilities would not have to stand in long lines.

By 5-3 vote, the Supreme court vacated that order and vacated the stay of that order and allowed Alabama to return to its previous rules that did not require curbside voting.

So Richard, tell us a little bit more about the case and the issues that were at stake and your assessment of why the court ruled the way that it did.

Richard Bernstein: So the issues that were at stake related to the Americans with Disabilities Act and whether curbside voting was necessary so that they would have "the opportunity to participate" in voting.

But I don't think that was what the case was really about, and the court ruled 5-3 to impose a stay.

The lower federal courts had ordered curbside voting, which Alabama law, for curbside voting for people with disabilities, which Alabama law did not itself provide.

And the federal secretary took the position that the regulations also did not require curbside voting.

What I think has really been at stake, there are sort of two main types and this case illustrates one of them, of the election litigation so far, and one of the main types is plaintiffs who wanted to expand voting, go to federal court, not state court, and say some aspect of the pandemic is making it harder to vote.

I think in the Supreme Court those cases had been uniformly unsuccessful when the state officials have opposed the relief being sought.

And I think, although the court didn't, right, in this case, I think the general rationale is the pandemic has been going on for seven months.

Things about elections should be decided by state and local officials.

If they want to make adjustments they've had time to do them.

We, the federal courts, are not going to order those adjustments and by and large there have been five votes for that position in that type of case down the line.

There's a case right now pending in the Supreme Court where the seventh circuit basically said the same thing with respect to Wisconsin voting.

And I would expect the Wisconsin case to come out the same way in the Supreme Court although there has not been a ruling yet.

And honestly, I'm not troubled by these kinds of cases, because while I may take a different view of due process, or the Americans with Disabilities Act or some other theory for federal relief, I think the conservatives are actually being true.

The conservatives on the court are actually being true to their core beliefs that elections are primarily a matter of state law, and adjustments to elections or other aspects of our life based on the pandemic should come from state and local officials not from the federal courts.

Paul Rosenzweig: So Trevor, let me broaden the lens a bit and ask more widely what role is the Supreme Court going to play in the elections this year?

What role should it play?

I mean, is what Rich described an appropriate form of engagement for the court or is it being intrusive in some way?

And let me broaden that even further and ask about the lower federal courts as well.

Trevor Potter: Well, Paul, I respect Rich's view obviously that the federal courts are being sort of classically conservative here, and that when I say the federal courts, I really mean the Supreme Court, because we've had lots of Federal District Court Decisions this year that have then been overturned either in the circuits or upheld in the circuits and overturned in the Supreme Court.

The, and I think Rich is absolutely right that the leaf motif in these is the view of the majority on the Supreme Court, that the federal courts should stay out of cases involving election procedure wherever possible.

I actually find that troublesome.

I think you can be a principled conservative and adhere to the constitution and feel that there is a role for federal courts here, because of course the supremacy clause in the constitution that says that states shall regulate elections also says unless the federal government steps in to regulate time, place, and manner of elections.

And starting with the Civil War amendments that amended the constitution itself to ensure that former enslaved Americans could vote and then the women could vote and that 18-year olds could vote and so forth there have been constitutional amendments.

There have also been federal statutes passed like the Voting Rights Act or the Motor Voter Law or laws to ensure that military and Americans overseas can vote by mail.

There have been a number of instances where Congress has stepped in to specifically secure the voting rights in specific, in certain circumstances.

And the, I am not an expert on the Americans with Disability Act, but that would seem to me entirely plausible that that act would require some sort of accommodation for people with disabilities who are literally deathly afraid of going into a crowded polling place on election day.

And so I won't get into the back and forth over whether the facts in Alabama were rightly or wrongly decided, but I think both Rich and I would agree that what that case reflects is a view by the majority of the Supreme court, that absent extraordinary circumstances, it's not the federal courts role to protect the right to vote.

And the majority doesn't much appear concerned about threats to the right to vote in the sense that their view is that's not our problem that should be left to the states.

And so I look at these cases and say, the federal court heard evidence the federal judge's decision was, certainly in Alabama, but we have seen this in many places in the country, there is a real harm to would be voters this year because of the extraordinary circumstances of the pandemic that balanced against that must be the difficulty of the remedy.

The proposed remedy.

How difficult is it for the state to do what is being asked to enable people to exercise their right to vote?

And in Alabama it's, I mean to me it was shocking because what the proposed remedy was that those counties who wished to could offer curbside voting to disabled Americans to ensure they could vote.

So it wasn't an imposition of a requirement that they do something that might be difficult to do where you don't have enough personnel to go to the curb, et cetera.

It was merely allowing people to accommodate voters, and I think that reflects this broader Supreme Court view that it isn't much concerned about the rights of voters.

And that I, given my background in elections, I just think is an unfortunate position for the federal courts to take, because in the states, there are many reasons political, personality, sometimes partisan, that steps are not being taken to make it easier for people to vote.

And if there is a good argument under federal law, that the Congress has actually preempted that and required such steps I think the federal courts ought to be more open to it.

Richard Bernstein: Yeah.

Let me just clarify.

What I said before was my analytical position.

Sort of, if a client asks me, why is the court doing what it's doing?

That's what I said before.

Personally I think we should have as much voting as possible and whoever wins, wins.

And, however, what I think is more... well to me, there are two forms of potential problems here.

One is people who want to vote not being allowed to vote.

And certainly my sympathies are entirely with those people.

The second issue, however, is are the courts going to take a major hit to their institutional integrity because judges are doing things that may be legally reasonable, but are entirely out of character for those particular judges and their judicial philosophy?

And therefore raise the issue of whether they are following their judicial philosophy or they are following their tribe.

If I could just, I think the classic example of this was Bush v. Gore.

I think Bush v. Gore was a perfectly reasonable interpretation of the equal protection clause.

However, it was an interpretation of the equal protection clause that the five justices who formed the majority, or at least three of them, never took of the equal protection clause in any other case, therefore leading to the question, were they being motivated by their judicial philosophy or were they being motivated by their tribal political affiliation?

Even if subconsciously, and even the appearance of that question, I think is harmful to the vital role that the federal courts, institutional role, that the  federal courts play in our country of being the decision maker that the people can defer to and say, well, I may agree with it. I may disagree with it, but I think they were trying to do their best.

Paul Rosenzweig: So let me pick up on that Rich and stay with you before I come back to Trevor.

Just the other day, the Pennsylvania Supreme Court issued a unanimous decision interpreting Pennsylvania election law in a way that essentially favors the idea of counting mail in ballots that arrive after the day of election provided they're postmarked timely.

So this was a state law determination of a state court determination of a state law issue.

So would your view be that if they were true to their principles, all eight justices or nine, if Barrett's on by then, should uphold that as an exercise of state authority?

Richard Bernstein: Absolutely and the fact that four voted to stay is very troubling.

If you'd like, I can describe for you the major issue in the case which is particularly narrow and let me disclose I wrote a brief in that case, which you and 11 others joined including Governor Tom Ridge of Pennsylvania and Carter Phillips and Peter Keisler leading Supreme Court advocates  and Stu Carson who liked Peter is a former acting Attorney General under a Republican president.

And so the issue in that case is the Pennsylvania Supreme Court relied, at least in part on its constitution.

It has a provision in its constitution that is specifically about elections and specifically about voting.

It is unlike any provision in the federal constitution and they relied on that provision that basically says no civil power can do anything to interfere with voting.

And they relied on that provision to say, look in the context of the pandemic not allowing some extra days for votes that are cast by November 3rd, because everybody agrees that as long as you mail your ballot by November 3rd, that's legal, there's no federal law or state law that prevents that from being counted.

Now, of course, mail doesn't arrive the same day at sense.

So the question is how many extra days?

And some States say none.

After election day, should you allow four ballots to arrive?

And then the second question is, and what if they're unpostmarked to give an easy example, if a ballot arrived on November 4th and through no fault of the voter, because whether or not there's a postmark is entirely up to the postal service and its machines, the ballot doesn't have postmark on it.

Well, of course it was mailed by November 3rd who gets mail the same day it's sent?

And why would a voter who was motivated enough to send the ballot send it the day after election day rather than on election day?

So in any event, the Pennsylvania Supreme Court used its constitution and it said, we're going to go out to November 6th, with receipts of ballots.

It's illegal to vote after November 3rd, nobody should vote after November 3rd.

The deadline for receiving balance is November 6th.

If they're dated November 4th, 5th or 6th, they're not going to count, but they're gonna count if they're postmarked November 3rd earlier, or if they don't have a postmark.

And that vote was 4-3 and they based it in part on their constitution.

Now, and there's something special about the Pennsylvania constitutional provision, unlike a lot of federal constitutional provisions the Pennsylvania constitution provision was actually approved by the state legislature.

Long ago in 1967 and in 1872, but the Pennsylvania state legislature forbid any amendment to the clause I'm talking about.

So we argued all the constitution requires, even in the most conservative interpretation, is that the state legislature approve the election law.

This is an election law.

It was approved by the legislature.

It was also approved by a constitutional convention and approved by the voters, but it was approved by the legislature.

There's no reason to treat it differently than if it were in a statute rather than a constitutional provision.

And I was extremely disappointed.

It's possible that they ruled on the grounds, but that every conservative justice, except for Chief Justice Roberts voted to impose a stay in that case.

Now they might've done it based on a principle called Purcell, which is that courts should not change election rules close to the election, but even that would be troubling because it's one thing for the Supreme Court to tell the lower federal courts not the act close to the election, but if state law applies, the Supreme court should have no business telling me state courts.

So telling state courts how close to the election they can make a decision.

So at least for the four, there is a Bush v. Gore feeling.

Now to be fair, they didn't write an opinion.

They may have a justification, which is more consistent with their judicial philosophies.

They may take a position that the legislature can act through a constitutional provision.

Cause a constitutional provision is too hard to change, who knows?

But at least at first glance it's troubling, and I know you're going to get to it, but the North Carolina case may be more troubling still.

Paul Rosenzweig: Let's save that for a bit.

Let me come to you now, Trevor and ask you two questions.

The first is the problematic nature of what looks like a secret justice.

We know Steve Latech has called this the Supreme Court's hidden docket where consequential decisions are being made without any written opinion or explanation.

And so we really are left, as Rich has just done, to guess into the meaning.

So talk about how that erodes the credibility of the court and our confidence in their electoral decisions and then, secondly, let me also broaden the lens a bit and take advantage of your former FEC work and ask you to talk more generally about common practice in mail-in balloting.

And whether or not what the Pennsylvania court did is a divergence and how we should view President Trump's broad claim that mail-in balloting is a fraud.

Trevor Potter: I think it is the problem when the court publishes a vote like this and we have to guess what the thoughts were of those four justices

It's not helpful.

Particularly because there were a lot of arguments made in that Pennsylvania case and it's very hard to know which ones they might be tempted by.

Was it indeed the principle that says federal courts shouldn't intervene in the last days of an election?

Was it the constitutional question that the plaintiff's raised that said that a state supreme court, cannot opine on or issue on election law matters, only the legislature may do so under the federal constitution.

I think Rich has pointed out that the facts of that case were that the legislature had done so in the Supreme Court was only interpreting what they'd done, but that's not how the plaintiffs presented it.

So there are some dangers lurking there that we can't fully understand or evaluate when we get a vote like that without any explanation, at least in highlights of what they were worried about.

On the absentee ballot question, which is very much a Pennsylvania question, so continuing the Pennsylvania discussion, Pennsylvania is one of the States that has historically not had a lot of absentee ballots.

They appear to be having a large number of requests this year because of the pandemic.

It is a state that under state law says that those ballots may not be processed until election day.

And let me just briefly explain what that means and why it matters.

When ballots come in in other States like Arizona and Florida and North Carolina, they are in fact processed on arrival, which means three weeks before the election, when ballots are coming in, the envelopes are being checked.

The signature is verified.

Questions about signatures adjudicated.

Voters are told they have an opportunity to claim their signature if there is an issue, et cetera.

Then the ballots are being taken out.

They're being flattened.

They're being read by machines.

All of that is secret.

No one knows the totals, but it's being done, which means, in advance, which means on election night, when the totals from the in-person voting on machines in those states are being tallied and announced.

They are also able, simultaneously, to tally the machine votes for the absentee ballots.

And so in those states, we will have a pretty good idea late on election night of how that state voted pending, how many ballots are still out and, as Rich explained may be arriving after the election, but voted before the election.

So that's an efficient way to do things.

Paul Rosenzweig: What possible reason is there for doing it any other way?

I mean, why wait?

I really am curious about this.

What is the official justification in Pennsylvania for not processing them beforehand?

Trevor Potter: Well, first, it looked as if there was a consensus in the Pennsylvania legislature to change the law and the lao pre-processing.

And there were proposals that split the Republicans and Democrats, one wanted six days in advance to start one wanted at nine.

The really sorry reality is that the Pennsylvania legislature is so dysfunctional and the partisan split so great that they could not agree on, or compromise, and they did not change the law at all.

Now the original justification I think was we don't want anyone to do anything until election day because we don't want any news to leak out about who is ahead.

I mean to me, as a former election official, that just is a silly justification for two reasons.

One all these other States do it and they haven't had a problem.

Secondly, we already know a lot because who requests absentees ballots and what their party registration is already public.

So you see press reports all the time that more Democrats than Republicans are voting absentee in many of these States.

And thus, presumably, that's how they're voting when their votes are counted.

But Pennsylvania didn't change it.

We are stuck with the fact that are going to begin processing on election day.

And the point you made, and the point Rich made is it doesn't matter whether these are cast in person on election day or cast by voters at home before the election, they are all equally valid ballots.

So the argument that President Trump and the RNC have been making is that somehow mail-in ballots are more open to fraud than in-person voting.

And that therefore, as a class of balance, they should be considered fraudulent and less reliable.

And effectively the argument that Trump made in 2018 as Florida was counting ballots that were arriving after the election is none of these should be counted.

They're all fraudulent.

Without any proof of any kind that any one of them was fraudulent, nevermind the whole class.

The argument seems to be because the class is somehow thought to be susceptible, without much specificity, to fraud, therefore, no balance from that class should be considered as valid.

That's a huge problem as a legal argument.

It has been thrown out by courts across the country.

The RNC made that argument in Montana, arguing that they shouldn't allow absentee balloting and the federal judge said give me your proof that there is any problem with any absentee ballot in Montana.

In the absence of any such proof, and there was none offered, the judge said, there's no argument here.

You'd have to present proof that there's something wrong with a ballot for me to say you couldn't accept it.

And that is not being offered with specificity.

But what we, I think, face in Pennsylvania, if the election is close, if the electoral college is close, if it comes down to Pennsylvania would be an argument by the Trump campaign that absentee ballots should not be counted.

And given that the polling shows Democrats are relying more on absentee ballots than Republicans, that would be an attempt to prevent the counting to throw out votes that are thought to skew Democratic on the basis of a just broad allegation that there is somehow something inferior about absentee balloting.

And that would obviously be a problem in Pennsylvania if the stage is trying to count and the Trump campaign is in court trying to prevent counting.

And if a Republican observers are objecting to absentee ballots solely because they are absentee ballots, because under Pennsylvania law observers can object to ballots, and that has to then be adjudicated, which would slow the counting process down in Pennsylvania.

Paul Rosenzweig: I mean, I hate to keep picking on Pennsylvania, which seems like, you know, but it seems like a pinata that you just keep hammering at.

So let me go back to you Richard, with another court case out of Pennsylvania.

Just last Friday, the Pennsylvania Supreme Court ruled.

So we just finished with Trevor talking about Pennsylvania, and now I'm going to come to you, Richard, with another question also about Pennsylvania, which is the oddity, as Trevor put it, of a federal court telling a state court that a state court may not change the rules because the Constitution gives the time, place, and manner control of elections to state legislatures instead.

Now I realize there's an oddity in Pennsylvania in particular but speak more broadly to the idea of federal courts, overruling state court interpretations in favor of state legislative interpretation.

Richard Bernstein: Well.

Five years ago, in a case called Arizona Redistricting, a 5-4 majority of the Supreme court ruled that states can use their constitutional provisions to regulate matters of federal elections even if the legislature, the denominated legislature has not approved the law because, in essence, the voters had approved the law through the state constitutional process and the voters, the majority said we're exercising the legislative power.

There was a very vigorous dissent written by Chief Justice Roberts.

If the current Supreme court followed that majority opinion, the Pennsylvania case would be an easy case, even without the key fact in Pennsylvania, that there the state legislature has approved the constitutional provision.

Even if you took that aside again, it is very troubling from an institutional  standpoint that four justice, if four justices are ready to overrule a five-year-old Supreme Court precedent, simply because, Justice Ginsburg and Justice Kennedy have been replaced by two other justices and Justice Scalia has been replaced by Justice Gorsuch, but he was part of the dissent.

If simply the change in the personnel and the court is going to lead the overruling of a five-year-old Supreme Court precedent in the midst of the election, the Supreme Court faces severe institutional problems.

And so that's also at stake in the Pennsylvania case.

If I could make one other comment on what Trevor said, I'm hopeful that after the election, particularly if the Democrats control the presidency, the Senate, and the house that federal statutes will be amended and I think Congress has power to do this because Congress has power over the timing of both the election and the process by which the election, leads to the naming of electors.

Congress will come in and legislate on matters of timing and I think Congress has the power, for example, to say, every state should start counting absentee ballots, X number of days, and mail-in ballots X number of days, three weeks, whatever it is, and not release the results, but X number of days before election day.

The notion that we are courting disaster by deliberately delaying counting mail-in ballots is just foolish.

Paul Rosenzweig: Well, I think that certainly seems to be the case.

So Trevor, is the level of litigation this year unusual?

I mean, you've said it elsewhere, that there are more than 350 lawsuits that have been filed in respect of this election.

Is that normal or is that the new normal?

Trevor Potter: Well, I hope it's not the new normal.

It's extraordinary.

It is unprecedented.

There's been sort of exponential growth I think for two reasons.

One the pandemic, which really sort of scrambled everyone's views of how to vote, how to get voters out, and presented the possibility of having people vote safely from home by mail without realizing either that would turn into a very partisan issue or that we would then have an ongoing crisis at the post office that would threaten timely delivery.

So that's one reason for all this litigation and there are permutations of that, because there is the, if you vote at home, many states require one or even two witnesses or a notary public on the ballot.

Well, if you're at home sheltering because of the pandemic, you probably don't have a closet full of witnesses or a notary public in the basement.

So those have led to litigation over those sorts of requirements.

So that's, one is pandemic related and the other is I think a sense that it is better, bless all the lawyers involved, it is better to litigate this stuff well in advance of election.

So we started seeing suits in March and April and May and June.

And then the fall, the group I'm involved with the Campaign Legal Center, had just filed suit in Arizona because there was no early voting place on a Native American reservation.

There had been one, the city closed it.

That would not have been allowed under the voting rights act before section five was declared unconstitutional by the Supreme Court.

But now the state could close it.

And the tribal plaintiffs have to say you know, the nearest polling place is two hours away.

If we want to early vote, that seems to violate the voting rights law.

So you're seeing litigation over the conditions of voting by both sides of the Democrats have aggressively been trying to expand the ability to vote and vote easily and from home.

And the Republicans have been suing when election officials and States do so.

The Republicans actually sued saying it violated the law to count ballots that were received after the election because Congress had said election day was November three so that ballots couldn't be counted on November four or five.

I think that was a fairly absurd argument, but that was a case and had to be ruled on by the courts.

That was part of the Pennsylvania case.

So, I don't think it ought to be the new normal, but we have seen a lot of things this year.

The points being made about states not processing ballots before election day, et cetera, that I hope post-election, we will take a good look at and say, you know, there are some fairly standard practices that ought to be adopted across the country as a minimum, the way after Florida on 2000, we said you shouldn't use machines that produce hanging CHADS and the federal government will give you money to buy new machines.

I think there's some things here, absentee ballot processing in advanced being one of them, but there are others that ought to be looked at in the Congress ought to say our minimum standards for elections that are primarily run by states, but which after all do federal office holders, and none of us want to go through a post-election crisis that could have been avoided because things have been done inefficiently.

Paul Rosenzweig: We could probably go on for forever, but we've probably gone on a fairly long.

Rich, let me come to you with one last one for a short description.

You mentioned earlier a big case in North Carolina that was just decided by the on bank fourth circuit and it's probably going to the Supreme Court.

Tell us briefly about that and why it's important, how you think it should come out.

Richard Bernstein: Well, the North Carolina case is sort of the Jarndyce versus Jarndyce of election litigation albeit over a more compressed period.

There's a case going on in federal court.

There's a case going on in state court.

The case going on in state court is now before the North Carolina Supreme Court. And they both raised the same issue, which is extending the date for receipt of postmark ballots, that have to be postmarked by November 3rd, there was a statute that said it had to be received by the election officials by November 6th.

State election officials agreed to move this to November 12th based on another statute, which gives emergency powers in some circumstances, here's, what's particularly dangerous about this case.

So it went on monk in the fourth circuit and three judges of the fourth circuit, it was not a complete Democrat, Republican split, there are six Republican appointed judges on the fourth circuit, three went with the majority but three wrote an apoplectic descend on the notion that what the state officials had done was clearly wrong under these North Carolina statutes.

So there's no issue of the North Carolina constitution this is just purely an issue of interpreting North Carolina statutes and they took the position well, federal courts, when it's clear, should decide, because of the reference to legislature and in the federal constitution, what state law means.

If this gets a majority of the Supreme Court, Katy bar the door, because in this election and in the post-election and in future elections everyone who does it like their States and it so happens that the North Carolina Supreme court has a majority of Democrats, is going to run to the federal courts and say you interpret state law without even giving a chance to the state courts to interpret state law.

Without even waiting, even though there's a pending gaze in the state Supreme Court.

We'll see.

We will see if the same four or perhaps more conservative judges on the Supreme Court are essentially willing to license every federal district court in the country to do what three justices in Bush versus score were willing to do and only three justices.

And that is substitute their own interpretation of state law for the interpretation of the Supreme Court of that state.

And even worse than Bush versus Gore in the fourth circuit case, which is now in the Supreme Court, they didn't even wait for the state Supreme court to issue a decision.

At least in Bush versus Gore, and in the Pennsylvania case, the state Supreme Court has had an opportunity to weigh in on state law.

So I consider the North Carolina case the most dangerous of all the cases that have been brought so far.

Both the voting rights and to the Supreme court, the federal Supreme court as an...

Paul Rosenzweig: So Trevor, I'm going to give you the last word and pick up on that last point of Richards, which is, it seems to me that there's two things going on here.

One is the outcome of the election a week from tomorrow and the federal court's role in that.

And then the second of them seems to me to be the, I don't want to say bigger question, but certainly the different question about whether or not federal courts will have a role in that election that plays into it in a way that damages their credibility to the long-term detriment of the judicial system and its reliability.

So which of those is the greater danger?

Do you think the courts engagement in this election will help or hurt how Americans see its legitimacy and the elections legitimacy going forward?

Trevor Potter: Oh, I think there's a huge danger here.

I'm hoping we avoid it, but I think it's here.

I thought it was odd, that both President Trump in the debates, and then Lindsay Graham, who certainly should know better, said they expected this election to be decided in the Supreme Court.

It doesn't take a long reading of the constitution to see the Supreme Court is not mentioned in the process of choosing presidents.

The Congress is.

The electoral college is.

Congress has passed an electoral college act so the Florida intervention in 2000 was historic, partly because it was so out of keeping with presidential elections and the way they are normally conducted.

I think it's safe to say there the Supreme court thought they were doing the country a favor by avoiding having this turn into a constitutional dispute and be dumped into Congress's lap.

But given the eminent arrival of a new justice after a highly contentious a hundred percent partisan process of rapid consideration and voting by the Senate.

I think it would be really unfortunate if that new justice then participated in cases that decided the election.

When the President has said the reason he wants her there is to enable her to participate in those cases.

And when, if she were to vote, in favor of the position taken by the Trump campaign, there would certainly be claims that was a conflict of interest.

So I think her arrival makes it all the more important that the court tried to stay out of post-election disputes if they are the sorts of questions that should be left to the electoral college and then to Congress is counting on the electoral college.

Paul Rosenzweig: On that cheery note I'm going to actually end this with some good news as I try to do every week.

And today it's actually good news that is directly on point it's about judges doing judging instead of voting for their team as it were.

This case came out of the eighth circuit.

The details are all sort of convoluted, but in a hotly contested congressional race in Minnesota, a third-party candidate for, and I kid you not, the marijuana party, who was on the ballot died the after the ballots were printed, but obviously before election day.

The Republican candidate argued that that meant that the election had to be postponed until February, which seemed to be consistent with Minnesota state law.

I guess he thought having a third-party candidate on the ballot might help him.

The Democrat said that federal law preempted the state law and required that federal elections go forward on November 3rd.

That was clearly right as a matter of good interpretation, both of the statute and of the role of federal law and state law here.

And the good news is that a three judge panel of the eighth circuit consisting only of Republican appointed judges agreed with the Democratic candidate and ordered that the election for this congressional district go forward on November 3rd is planned and it's really always good news for the rule of law and for at least my heart when judges follow the law and are seen not as mere ciphers for their own party's victory.

So that's the end of our podcast today.

It's a wrap for the show.

Thanks for joining us.

We release a new show on Mondays, but we're going to take a break next week to watch the election play out.

Nobody's going to listen to a podcast on the day before an election I think.

This episode and all of our other episodes are available on Apple, Spotify, Stitcher, and anywhere else you can download podcasts.

We hope you'll subscribe, and we'll also archive this podcast@checks-and-balances.org, if you want to find it.

So thanks again to Richard Bernstein and Trevor Potter for joining me today on the podcast.

I'm Paul Rosenzweig, your host.

I will leave you finally with this admonition from Thomas Jefferson, who 200 years ago said:

"We do not have government by the majority. We have government by the majority who participate."

So with that admonition and warning, go out and vote for whoever you want to.

Every vote matters and that's how we're going to have an election in eight days.

I wish you all very well and I thank you for joining me.