The Safe Harbor Deadline

U.S. federal law’s “safe harbor deadline” means that most presidential election law cases will be ...

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U.S. federal law’s “safe harbor deadline” means that most presidential election law cases will be resolved by tomorrow, December 8. Today, David and Sarah discuss what’s next for Trump loyalists who have an unshakable belief that the election was stolen. Stay tuned for a conversation about changes to the citizenship test, a 9th Circuit transgender bathroom case where cert was denied, parental and student rights in public education, and why so many conservative lawyers don’t buy the Trump campaign’s legal strategy.

Show Notes:

-U.S. code on meeting and voting of electors, determination of controversy as to appointment of electors, and counting electoral votes in Congress.

-“Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management” by Edward Foley in the Loyola University Chicago Law Journal.

-“The ‘Safe Harbor’ Deadline Is upon Us” by Jim Geraghty in National Review.

–Parents for Privacy v. Barr.

-“Why Do So Many Americans Think the Election Was Stolen?” by Ross Douthat in the New York Times.

–Brown v. Hot, Sexy and Safer Productions, Inc.

-“Coronavirus: When a High-Trust Response Is Required in a Low-Trust Time” by David French in The Dispatch.

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  1. Avatar photo
    Larry Seltzer

    You left out my favorite part of 3 USC, that the states are instructed to send their certified electoral votes using US Mail (specifically registered mail). Maybe there's still time for Trump to sabotage the USPS!
    https://www.law.cornell.edu/uscode/text/3/11

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  2. Mathew A

    I just wanted to say how much I'm enjoying these podcasts. Bring on the legal nerdery. When they are released they jump to the top of my to listen to list.

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  3. Rick Osial

    Listening to these podcasts, I am convinced that I would have to spend 6 years in law schools because I listened to The Remnant w/Sarah and Jonah first and then listened to this podcast. I sorta now understand.

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  4. Avatar photo
    Ethan Cordray

    I'd be really interested in a larger discussion of where the legal powers of public schools over their students originated, and how they became so (in my perspective) overwhemingly excessive and authoritarian in their scope.

    The manner in which public schools are permitted to police and control the behavior of students seems wildly different from the manner in which almost any other institution in American life is permitted to control people. It's in many cases not unreasonable to compare the methods of school discipline to prison conditions.

    Is this just a throwback to the early-20th century era, when there was a wider push for increased control of putatively "dangerous" populations such as immigrants, ethnic minorities, and industrial workers? If so, why has public schooling remained such a bastion of authoritarian structure when so many other expressions of that tendency have loosened up?

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  5. Ellen

    Re. transgender/bathroom issue, would the Supreme Court hear a case in which the bathroom is used by adults and children? Our family had an issue in New York City, in a parks department locker room that involved a group of girls, age 7-16, showering and changing clothes in the same room as a person who looked to the girls as a man. The city had very clear signs on the doors of each locker room stating that no one could complain "under penalty of law." There was nothing parents could do.

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  6. Frank Pepp

    It looks like we can add the Texas AG to political lawsuits, undercutting the narrative lawyers have stayed out of this and have been the good group of conservatives?

    Though it looks like it is the lawsuit razing real issues you two point out, namely unequal treatment of voters, especially with regard to mail in ballots and fraud protections. Also voting practices not meeting state laws or constitutional requirements.

    It still looks frivolous at this point, and seems like a dangerous rode to go down for Republicans. If I were a judge and accepted these arguments (I wouldn't based on my understanding of Federalism), I'd likely instead require Texas be more lax with voters giving them the most favorable treatment to ensure turnout. That's assuming evidence remains as it is: that voter fraud is vanishingly rare, and voter suppression is very real. I'd force the best practices of the state with the best turnout, assuming it can't be shown to have significantly higher rates of fraud.

    https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/SCOTUSFiling.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

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  7. Avatar photo
    David V

    You didn't tell us that it was the Chelmsford PTO that invited (go into David's smooth, somewhat odd voice used for the company name the last few times he said it) Hot, Sexy, and Safer to come to the school! That was unexpected. Also, I approve of said company in that at least they used the Oxford comma.

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  8. Avatar photo
    WKDawson

    I was mulling over the discussion toward the end about Ross Douthat's article in NYT. I guess elections have disappointments, and they can even be amplified when we meet disappointments about the leaders later in the course of things. So, for example, the 2000 election. That really was close. Gore won the popular vote, but Florida decided the election. There was the complaint that ballots were thrown out because they were not marked correctly. On that one, I felt that, surely, if people don't bother to read the directions, they shouldn't be surprised. Anyway, the difference was pretty narrow, I think I've heard even less than a thousand votes.

    I also recall that Michael Moore came out with the film "Fahrenheit 911". There were some theaters here that showed it and I did watch it. It was very much a conspiracy theory work. I don't remember a lot about it, but in some roundabout way, it also claimed the election was stolen. I think it was mostly saying that Gore won the popular vote, but Bush won Florida, so the facts were true, but it sort of implied that it wasn't fair. The other thing was 9/11. There was a 9/11 commission, but I don't really know what they actually came up with. Nevertheless, I think David's default of "incompetence" probably would make the best sense frankly. None of us really would imagine people coming to the US, interacting with people here, and then flying a plane into a building. Most of the time, people want to come to the US for a chance.

    It is difficult to say how Gore would have come out. Almost surely, 9/11 would have happened much the same because it was part of Bin Laden's cynism of the West that was long in the works. I'm not sure what the response would be. It seems Bush largely made the right decision to give Bin Laden a good pounding, but he didn't carry through. Gore probably would not have been as foolhardy to do an escapade into Iraq and created that foreign policy mess, but heaven only knows what messes might have been ignored, missed, or made.

    Anyway, Ross has a point that it would be a hard disappointment for some people who really thought Trump was great. I most assuredly didn't feel that way. Nevertheless, I can understand how some waves of bad feelings will ebb and tide over time, depending on how the Biden presidency turns out. At least the noise coming out of the Oval Office will be a little less.

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    BrandonAlleman

    A lot of fire lookouts in the PNW were repurposed during WW2 (including being repainted and manned by military) to watch for Japanese floating bombs in addition to normal fire lookout activities.

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  10. CAProf

    How would you know if a member of Congress represented a particular group of people or not (e.g. children or green card holders)? What would the difference be? The only difference I can imagine would be the person’s own actions, which I suspect would be most influenced by the voters—I.e., not even all the citizens.

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    1. Avatar photo
      Ethan Cordray

      The question of what constitutes "representation" is an interesting one, philosophically. I would actually tend to agree with the new test answer, that a representative represents "citizens" and not non-citizens. This is because "representation," formally considered, is the method by which the collective entity of the People of the United States of America perform their role as the sovereign authority in the federal republic. And the People of the United States comprises only citizens, not non-citizens -- by definition, this is what citizenship is: membership in the People.

      One certainly hopes that members of Congress do their best to promote the best interests of every person who lives within their particular territory of representation, citizen and non-citizen alike (and indeed they are obligated to do so, as the Constitution grants rights to non-citizens, in turn obligating the sovereign -- that is, the People as represented by their representatives -- to defend the rights of non-citizens). But formally, they only "represent" their territory's citizens, as only their citizens are formal members of the collective sovereign.

      In short, "Representation" is a formal term expressing the mechanism by which the sovereign People of the United States enact their self-sovereignty by creating a Republic. It's very different from the informal question of who a congressperson should be "working for" as they do their job.

      That all being said, it's certainly dumb to require such precision in the citizenship test, since it would make that question a whole heck of a lot harder than most of the others.

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