No More Pre-Mortem (Almost)

It's going to get messy.

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On today’s combative pod, David and Sarah revisit the Stacey Abrams lawsuits and check in on the state of election laws. They then turn to the question of expressive activity and whether a state can force beauty pageants to include transgender contestants. They conclude with an examination of Washington state’s approach to “unconscious bias” in trials.

Plus: the duo offers a few pronunciation meae culpae.

Show Notes:

–David on Stacey Abrams’ election challenges

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  1. Deleted Comment

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    Dguaspari

    What David and Sarah left out about voting:

    Their discussion about early voting, drop boxes, etc. sounded as if the primary concerns of an election system were efficiency and convenience -- as if the criteria for a good one would be the same as those for a secure McDonald's drive-through.

    What's left out: voting is not just some task to be gotten out of the way but participation in a ceremony, the sacred ceremony that legitimizes a democracy. Last Tuesday I walked down the block on election day to stand in line with fellow citizens. A thought balloon over my head would have characterized them as a bunch of leftist loonies eager to despoil me of my rights and property in pursuit of what could charitably called pie-in-the-sky nonsense. (I live in a college town.) But we were all smiling, cheerful, pleased to see one another, because our being there was testimony to an important thing we could agree on, a commitment to the process we were engaged in.

    A ceremony has to be ceremonious. One sign of a real commitment is that it requires some degree of sacrifice, unlike going to amazon and clicking on "Buy Again." An election system designed by me would require that voters without a good excuse must present themselves in-person on one day, election day -- which would be an official holiday. (And there would be a dress code.)

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  3. Dujmovich

    I think you're going to find that abortion did matter in this election and I think your analysis of how people parse it is wrong. Yes, no one likes abortion and it's not directly relevant to the large majority of people. What is relevant is taking away a right that women have fought for (I know not all women, but bear with me) around the world. It's about bodily autonomy and not letting men, the state, the church, etc. make decisions for you. First it's abortion and then what? A lot of women will not go back.

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    Bjmckenz

    Arrrrtgh!

    I was happy to hear that you were going to fact-check yourself. "Yes" I thought. "She will be lovingly corrected on her pronunciation!"

    Except no.

    Heck with "Gruht-er" vs "Grooter"....

    Fix the big one! It's "Bockey" and not "Baykey".

    This was an important case that I kept hearing about as a kid. On the news all the time. Hearing it wrong is super jarring.

    Otherwise you are my flagship!

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    Charles

    Sarah! Nate is quickly approaching the age when my son got entirely addicted to the soundtrack for Les Mis.

    If you’re looking for ways to have meaningful conversations with a young child while stretching your adult brain to its limits, I thoroughly enjoyed all of my attempts to explain the plot and nuances in ways that a 4-year-old can understand while still keeping the content age appropriate. It really shatters the whole “good guy/bad guy” dynamic and it’s a blast to help them wrestle through that.

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  6. Francislyo

    I’m a recent TD fan, new enough that I’m still binge listening and reading. I especially appreciate David’s evidence-based reporting and perspective coming from a Christian heart. HOWEVER, I was shocked when you (David) claimed that “there were Democratic conspiracy theories about voting machines … Diebold, going back to the ‘04 presidential elections”.

    My doctoral degree is in computer science (CS). While I was a grad student, electronic voting machines were a big issue among CS professors and grad students across the nation from ~2004-2006 – whereas for Democratic and Republican leaders and their rank and file, not so much.

    Numerous computer security checks during this time by experts in academia and government found egregious threats to electoral integrity in Diebold machines. CS professors and researchers from a number of top universities demonstrated that votes could easily be changed in Diebold machines. (See Wikipedia summary and primary source publications). In 2006 Michael I. Shamos, a professor of computer science at Carnegie Mellon, also the examiner of electronic voting systems for Pennsylvania, stated "It's the most severe security flaw ever discovered in a voting system." The big push from CS, including IEEE (not your average conspiracy-mongering group) was to remove the touch screen machines in favor of optical scan machines that would include a voter-verifiable audit trail. Basic good engineering and testing was also key, as it was found that Diebold AccuVote-OS optical scan voting terminals had egregious vulnerabilities that could be exploited to alter votes at scale. The authoritative sources and adjudication on these issues do not support claims that this was conspiracy theory, rather, this was an electoral integrity problem that needed to be solved.

    Note that these complaints and suggestions for shoring up our elections began shortly after the machines came out, and before they were in widespread use in a major election. The professors did not claim after the fact that a key election had been stolen. Democratic leaders in ’04 did not employ caustic demonizing rhetoric that Republicans had nefariously hijacked our democracy.

    This is NOT a conspiracy theory.

    Fast forward 15-20 years: AFTER losing the presidency, a large number of Republican LEADERS concocted conspiracy theories to blame their loss on the Evil Democrats.

    The Republicans running the Dept of Justice investigated each of the many Stop the Steal conspiracy theories and found them all to be baseless. The authoritative sources, including Bill Barr, agreed. Yet, vast swaths of the Republican *leadership* continue 2 years later to promote this lie and destroy belief that we can safely choose our leaders by the ballot box. A violent attack on the capital was party to this, followed by the majority of Republicans in the House voting that the election was not free and fair.

    This IS a conspiracy theory.

    These two are in no way equivalent. The research done to expose the vulnerabilities in the Diebold machines was good science by patriots in the service of our democracy, which resulted in a (necessary) change in voting machines to include voter-verifiable audit trail in US electronic voting. This work was to *prevent* widespread loss of confidence in our democracy that would surely have resulted had these easily-hacked machines stayed in widespread use with their problems intact.

    In contrast, Stop the Steal was an attempt to overturn the election in search of a theory to justify extreme means including violence. No factual information that would stand up in court has been offered. Even so, a vast swath of Republican leaders did and do employ caustic demonizing rhetoric that Democrats have nefariously hijacked our democracy. The difference is huge: one supports democracy, the other drags it down for partisan gain.

    That said, to borrow the words of Michael M: I find you and Sarah to be among the finest legal analysts.
    Please take this into consideration and keep up the good work.

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    1. Karin

      Further proof, if any is needed, that advisory opinions has the best listeners!

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    George.Skinner

    In the Washington case, I’d bet one could do an analysis of transcripts of civil trials looking for those terms and correlate them to the racial identity of the people they’re directed at. Absent some statistical evidence that certain language is applied in an racially biased manner, the whole argument of implicit bias is just pseudoscientific conjecture.

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  8. Anand Dharan

    Around the 33-34 minute mark, Sarah’s facts on early voting and vote-by-mail in Massachusetts are out of date. The VOTES Act, passed earlier this year, codified many of the pandemic-era changes to voting in the Commonwealth. We now have universal no-excuse vote-by-mail (in fact, everyone in the Commonwealth receives an application for a mail-in ballot), more early voting days, a later pre-election deadline to register, and expanded options for same-day registration. Additionally, even prior to the VOTES Act, many local governments had already adopted many of these measures; they just weren’t mandated for the entire Commonwealth (they are now, except for certain circumstances in which local governments may opt out of some of these measures for local elections). For example, the City of Boston had fairly generous allowances for vote-by-mail even prior to the pandemic.

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  9. P Satter

    Sarah, quirky upbeat 60's songs might be more Nate's thing than the somber tones of Simon and Garfunkel. If so, you have a lot to choose from. A group like Manfred Mann ("The Mighty Quinn" or "Do-Wa-Diddy") might be more his speed. Then again, he might just be a Sonny and Cher fan.

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    1. Karin

      “Jeremiah had a bullfrog“ a.k.a. joy to the world by three dog night is the best toddler bath song!

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  10. Jason S

    I hate to pile on the pronunciation train, but, Sarah, I think your pronunciation of Rehaif is wrong, although now I'm not so sure what the right answer is. I've always heard it pronounced Ruh-HAYF. But at the oral argument, CJR said Ruh-HEEF. And at the opinion announcement, he said Ruh-HAIF. So who knows?

    However, one thing I am sure about is your description of the case was not entirely correct. Sarah, you said that Rehaif held that the Government must prove that a prohibited person knew that they were not allowed to own a gun. That is not so. Ignorance of the law is not a defense. Rather, the Government must prove that the prohibited person knew that they were in the relevant category of prohibited persons. That is, a felon must knew he's a felon, but it doesn't matter whether he knew that that status prevented him from owning a gun. This line can get very, very thin, as the First Circuit proved in a case in April involving the category of those convicted of a misdemeanor crime of domestic violence (US v. Minor). But it remains an important one. Big fan of the show!

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