WEBVTT - Will There be Mini Bush v. Gore Suits Post-Election? 0:00:00.480 --> 0:00:05.720 You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:06.559 --> 0:00:10.640 If the avalanche of lawsuits over voting by mail seems overwhelming, 0:00:10.720 --> 0:00:13.320 now just wait for the lawyers to get to work 0:00:13.360 --> 0:00:17.560 on election day. President Trump has been repeating unproven claims 0:00:17.600 --> 0:00:21.160 about mail in ballots for months now. Democrats are trying 0:00:21.200 --> 0:00:24.360 to reach the election. Left wing judges and governors are 0:00:24.440 --> 0:00:27.400 changing the rules just weeks before the election. These ballots 0:00:27.440 --> 0:00:31.400 are a disaster. They are a total, complete disaster. So, 0:00:31.480 --> 0:00:35.520 barring a landslide, many legal experts expect a second wave 0:00:35.560 --> 0:00:38.960 of lawsuits after the election. Joining me is Rebecca Green, 0:00:39.080 --> 0:00:41.479 a professor at William and Mary Law School and co 0:00:41.640 --> 0:00:45.839 director of the Election Law Program. There are an unprecedented 0:00:45.960 --> 0:00:51.040 number of election cases before the election. Will most of 0:00:51.080 --> 0:00:54.520 those be resolved by election day or will they still 0:00:54.560 --> 0:00:58.560 be litigated? So it's a great question and first point 0:00:58.600 --> 0:01:01.360 to make about the volume of election litigation that we've 0:01:01.400 --> 0:01:04.640 seen so far is number one, that's unprecedented. UM, We've 0:01:04.640 --> 0:01:07.480 definitely never seen as high of a volume of litigation 0:01:08.080 --> 0:01:10.920 between the primary and general election. UM. But that's not 0:01:11.120 --> 0:01:14.720 terribly surprising given that we're in a sort of once 0:01:14.760 --> 0:01:17.120 in a hundred year pandemic. UM. And most of that 0:01:17.240 --> 0:01:22.760 litigation has involved accommodating voters and election officials because of 0:01:22.800 --> 0:01:26.600 the pandemic. So UM, I think, you know, the first 0:01:26.600 --> 0:01:28.680 thing to say is that it's unprecedented. The second thing 0:01:28.720 --> 0:01:31.919 to say is that it's not a bug of our system. 0:01:31.959 --> 0:01:35.800 It's actually a future And it's really, in some sense 0:01:36.040 --> 0:01:39.319 a good thing that so much litigation has occurred, in 0:01:39.360 --> 0:01:42.679 the sense that it's evidence that our system is working 0:01:42.880 --> 0:01:45.120 and that when problems are confronted, we have to be 0:01:45.240 --> 0:01:48.920 resolution processes to address them. So in other words, UM, 0:01:48.920 --> 0:01:50.680 it's not a it's not a problem, it's actually just 0:01:50.760 --> 0:01:53.240 the function that the system working as it should. And 0:01:53.280 --> 0:01:56.120 I guess the third thing to say is that, um, 0:01:56.200 --> 0:01:59.840 we should feel very lucky uh that um, we are 0:01:59.880 --> 0:02:02.560 not being hit with the pandemic to the degree that 0:02:02.600 --> 0:02:05.600 we were, um, just prior to the primaries in our 0:02:05.640 --> 0:02:08.960 general election, UM, where many many more people vote and 0:02:08.960 --> 0:02:12.640 obviously UM, you know, more as at stake. So that 0:02:12.800 --> 0:02:14.720 is to say that all of the litigation that we've 0:02:14.720 --> 0:02:17.000 seen so far has ironed out a lot of the 0:02:17.080 --> 0:02:20.520 kinks and resolved a lot of the problems of running elections. 0:02:20.639 --> 0:02:23.480 During the pandemic. Uh, And so we should be sort 0:02:23.520 --> 0:02:27.360 of in that sense grateful that, UM, that we've gotten 0:02:27.440 --> 0:02:30.640 so many of these issues, We've gotten clarity on many 0:02:30.639 --> 0:02:34.120 of these issues prior to the election. So I think, UM, 0:02:34.120 --> 0:02:36.880 In sort of more directly answering your question, UM, I 0:02:36.880 --> 0:02:39.160 think most of this litigation will be resolved in the 0:02:39.120 --> 0:02:41.520 advance of the election, and certainly courts have a mandate 0:02:41.600 --> 0:02:44.120 to do so, you know, to make sure that the 0:02:44.240 --> 0:02:46.480 rules are in place as far in advance of elections 0:02:46.480 --> 0:02:50.440 as they can. UM. And so I think, UM, I 0:02:50.480 --> 0:02:54.040 think most of the litigation that we're seeing raising around 0:02:54.040 --> 0:02:55.760 the country and what we've seen over the last few 0:02:55.800 --> 0:02:58.040 months will affect to be resolved. UM. But that's not 0:02:58.120 --> 0:03:01.919 to say, of course that there won't be continuing litigation, UM, 0:03:01.960 --> 0:03:04.720 as we approach election day, that there won't be election 0:03:04.800 --> 0:03:07.120 day litigation. And then certainly of course that there will 0:03:07.200 --> 0:03:10.800 most certainly be post election litigation as well. That was 0:03:10.840 --> 0:03:13.400 my next question, the fact that we have all this 0:03:13.480 --> 0:03:17.440 litigation now and as you mentioned, the pandemic, do you 0:03:17.520 --> 0:03:23.760 expect to have an unprecedented amount of post election lawsuits. Well, 0:03:23.800 --> 0:03:27.120 it's hard to say about unprecedented. I do think that 0:03:27.320 --> 0:03:30.520 pressures on the system. So where you typically see a 0:03:30.520 --> 0:03:35.040 lot of post election litigation involved U two categories of ballots. First, 0:03:35.280 --> 0:03:39.119 provisional ballots. Those are ballots that people cast when they 0:03:39.240 --> 0:03:41.240 are told that for one reason or another, they're not 0:03:41.280 --> 0:03:42.680 on the rolls, or they are you know, in the 0:03:42.720 --> 0:03:45.120 wrong precinct, or or there's a disagreement about whether the 0:03:45.160 --> 0:03:49.000 person is eligible to vote. Federal law requires that those 0:03:49.040 --> 0:03:53.600 people be handed a provisional ballot and UM. Then they have, 0:03:53.840 --> 0:03:56.160 you know, a certain amount of time to sort of 0:03:56.200 --> 0:03:58.920 prove that they were in fact eligible UM, and the 0:03:59.280 --> 0:04:01.840 state has to kind of go through a post election 0:04:01.880 --> 0:04:05.720 process and administrative process to decide whether to count or 0:04:05.720 --> 0:04:08.240 not count those provisional ballots. And so there's an administrative 0:04:08.240 --> 0:04:11.839 process for that, and just like there's an an administrative 0:04:11.880 --> 0:04:14.880 process for ABS and T ballots. So when you state 0:04:14.920 --> 0:04:17.080 receives the ABS and ballot, there's a process that they 0:04:17.160 --> 0:04:20.839 go through to verify that it's UM from the person 0:04:20.839 --> 0:04:23.000 who sent it in and that that all those sort 0:04:23.000 --> 0:04:25.560 of boxes are checked UM. In other words, that do 0:04:25.640 --> 0:04:27.479 they have their address on their did they sign it 0:04:27.520 --> 0:04:29.640 properly if they needed a witness signature? Is that on 0:04:29.680 --> 0:04:32.520 there those kinds of things. So there's these administrative processes, 0:04:32.920 --> 0:04:38.159 and often when elections are close, UM, election litigators look 0:04:38.240 --> 0:04:42.040 to provisional and absent tee ballots to determine, you know, 0:04:42.040 --> 0:04:45.119 whether or not they can find UM ones that should 0:04:45.120 --> 0:04:47.800 have been counted that weren't or ones that were counted 0:04:47.800 --> 0:04:50.400 that shouldn't have been counted, and so UM that tends 0:04:50.440 --> 0:04:53.200 to drive a lot of post election litigation when elections 0:04:53.200 --> 0:04:57.480 are closed. So because of the nature of running an 0:04:57.480 --> 0:05:00.400 election during a pandemic and all of them issues that 0:05:00.440 --> 0:05:03.479 have arisen, especially with the dramatic increase that's expected in 0:05:03.600 --> 0:05:06.680 absentee balloting. UM, I think it's fair to say that 0:05:06.880 --> 0:05:10.479 that it's likely that there will be more post election litigation. 0:05:10.800 --> 0:05:13.560 But I guess the caveat there is that typically there 0:05:13.640 --> 0:05:17.600 isn't election litigation when there is what's referred to as 0:05:17.800 --> 0:05:19.920 no margin of litigation. That is to say, if it's 0:05:19.920 --> 0:05:23.279 not close, um, you know it's it's it's it's less 0:05:23.320 --> 0:05:27.080 likely that litigation will occur if it's a blowout, for example. 0:05:27.360 --> 0:05:29.280 So I think a lot of people are looking at 0:05:29.320 --> 0:05:31.760 that that question and sort of you know, the closer 0:05:31.839 --> 0:05:34.320 it is, the more litigation you can expect can we 0:05:34.360 --> 0:05:39.560 expect litigation in any event from President Trump in light 0:05:39.640 --> 0:05:43.760 of the things that he's been saying about malin balloting 0:05:44.240 --> 0:05:47.800 causing massive fraud and that if he doesn't win, he 0:05:47.839 --> 0:05:50.920 doesn't know if he can trust the outcome. So can 0:05:51.040 --> 0:05:55.520 we expect? Well? I think, UM, it's important to UM 0:05:55.800 --> 0:06:01.000 remember that it courts and we've seen this already in litigation. UM. 0:06:01.440 --> 0:06:05.600 You know, in this sort of pre election litigation already, M, 0:06:05.640 --> 0:06:09.640 which is that courts are very consistent in requiring provable 0:06:09.720 --> 0:06:12.760 facts and evidence to show that there's been a statutory 0:06:12.800 --> 0:06:16.520 or constitutional violation of state or federal law before they're 0:06:16.560 --> 0:06:20.000 willing to entertain a case. And so UM, you know, 0:06:20.040 --> 0:06:23.600 if if if President Trump UM and his attorneys are 0:06:23.640 --> 0:06:28.120 able to point to evidence of fraud or problems in 0:06:28.160 --> 0:06:32.480 the absentee voting context, for example, UM, then you know 0:06:32.560 --> 0:06:35.360 that that is absolutely something that should be litigated and 0:06:35.400 --> 0:06:37.719 that evidence should be examined. And you know that that 0:06:37.720 --> 0:06:40.320 that is how our system works. UM. But if if 0:06:40.320 --> 0:06:43.039 the facts aren't there, if the evidence isn't there, you 0:06:43.080 --> 0:06:47.120 know a court will not entertain that UM allegation. UM. 0:06:47.160 --> 0:06:49.600 You know again, if evidence doesn't exist, So I think 0:06:49.640 --> 0:06:51.359 that's going to be the real question is whether or 0:06:51.360 --> 0:06:54.440 not you know, he's he's certainly been suggesting that there 0:06:54.480 --> 0:06:58.280 are lots of problems with absent voting and that there 0:06:58.279 --> 0:07:01.040 will be fraud. But um, in a lotus seeking Marshal's 0:07:01.080 --> 0:07:03.800 evidence to show that that's actually happened. Um, I don't 0:07:03.800 --> 0:07:07.080 think he'll get far in court. And any attack President 0:07:07.120 --> 0:07:10.200 Trump makes on the election that would have to be 0:07:10.240 --> 0:07:15.720 a state by state case or attack, correct. So so yeah, 0:07:15.920 --> 0:07:18.160 it's kind of hard to get your head around. But 0:07:18.200 --> 0:07:21.520 you know, America doesn't have a single presidential elections that 0:07:22.120 --> 0:07:26.280 we have elections in every state, um, and so so yeah, 0:07:26.320 --> 0:07:28.320 you wouldn't be able to sort of challenge that presidential 0:07:28.360 --> 0:07:31.160 election national. You'd have to bring that litigation in states. 0:07:31.200 --> 0:07:34.280 And those states would be following in some cases federal 0:07:34.360 --> 0:07:35.920 law and the sense that they have to comply with 0:07:36.200 --> 0:07:40.600 federal requirements. But the vast majority of requirements in elections 0:07:40.680 --> 0:07:43.760 in this country comes from state law. So in those 0:07:43.800 --> 0:07:46.920 state laws are you know, they have their own ecosystems 0:07:47.040 --> 0:07:51.400 and very distinct from one another. So usually what happens is, um, 0:07:51.440 --> 0:07:55.040 you know, election experts in the states. So the litigators 0:07:55.040 --> 0:07:57.280 who are experts on the state's election law will pick 0:07:57.400 --> 0:08:01.400 up cases at the state level because because the laws 0:08:01.400 --> 0:08:04.600 so arcane in this field. Bush Gore is the case 0:08:04.720 --> 0:08:08.240 that's mentioned over and over again because anyone who went 0:08:08.280 --> 0:08:12.080 through it you remember just hanging on every chad, so 0:08:12.160 --> 0:08:15.480 to speak. So is there any likely that there will 0:08:15.480 --> 0:08:19.640 be another Bush v. Gore? So, you know, the reason 0:08:19.680 --> 0:08:24.480 why Bush versus Gore was such an extraordinary case is 0:08:24.520 --> 0:08:30.080 that the tally came down to vote, which is extraordinary that, 0:08:30.240 --> 0:08:33.600 you know, the deciding state from an electoral vote count 0:08:33.800 --> 0:08:36.240 matter came down to a state where the vote was 0:08:36.280 --> 0:08:40.680 that close. So that is a pretty extraordinary circumstance. And 0:08:40.880 --> 0:08:43.520 it's always the case that there are close elections. Um, 0:08:43.559 --> 0:08:46.040 you know, I'm speaking to you from Virginia, where we 0:08:46.080 --> 0:08:48.120 had an election that was so close that that victor 0:08:48.240 --> 0:08:51.360 had to be drawn from a hat. So it's not 0:08:51.440 --> 0:08:55.600 rare to have close elections, but to have the series 0:08:55.600 --> 0:09:00.319 of circumstances that aligned to produce Bush versus Score occur 0:09:00.400 --> 0:09:03.600 again would be quite extraordinary. So, you know, never say never, 0:09:03.640 --> 0:09:07.280 but it's only going to be that kind of Bush 0:09:07.320 --> 0:09:11.280 bee core level scenario if in fact, um we're talking 0:09:11.320 --> 0:09:13.679 about a state where it's as close and where that 0:09:13.840 --> 0:09:17.439 state is um, you know, pivotal to the outcome. The 0:09:17.559 --> 0:09:24.000 possible scenario for there being no election lawsuits after the 0:09:24.080 --> 0:09:28.080 election would be an overwhelming vote for one candidate or 0:09:28.120 --> 0:09:31.319 the other. Yeah, so, I mean usually the way this 0:09:31.360 --> 0:09:36.600 works is, you know, candidates won't bring claims uh, you know, 0:09:36.640 --> 0:09:40.040 and expend resources. And indeed, in some cases, in most cases, 0:09:40.040 --> 0:09:43.480 state law won't allow um a recount that if the 0:09:43.559 --> 0:09:46.880 outcome isn't you know close, you know. So for example, 0:09:46.960 --> 0:09:49.240 some states have laws that say there can be no 0:09:49.320 --> 0:09:52.320 recount unless there is the vote is closed by x 0:09:52.360 --> 0:09:56.040 percent one percent, for example. And so it is the 0:09:56.120 --> 0:10:00.880 case that UM, if the candidate believes a political party 0:10:00.960 --> 0:10:04.640 believes that the number of votes that are contested, So 0:10:04.720 --> 0:10:07.400 for example, UM, you know, let's say that a vote 0:10:07.440 --> 0:10:09.920 was um, you know, a hundred thousand votes. You know, 0:10:10.280 --> 0:10:12.840 the candidate won by a hundred thousand votes. If the 0:10:12.920 --> 0:10:15.920 candidate who lost by a hundred thousand votes believes that 0:10:16.000 --> 0:10:19.760 there are, for example, you know, two hundred thousand fraudulent votes, 0:10:20.120 --> 0:10:23.520 then that candidate could contest the results saying, you know 0:10:23.640 --> 0:10:26.360 that that the outcome would change had it not been 0:10:26.400 --> 0:10:28.679 for these fraudulent votes. But they're not going to get 0:10:28.720 --> 0:10:33.200 anywhere in litigation unless they can produce evidence that supports, 0:10:33.640 --> 0:10:35.720 you know, a finding that there has been in fact 0:10:36.080 --> 0:10:38.960 um that much thought. So, in other words, unless you 0:10:38.960 --> 0:10:41.280 have the evidence to prove that you have an outcome 0:10:41.320 --> 0:10:45.760 determinative number of problems UM in terms of the ballots 0:10:45.800 --> 0:10:48.960 that have encountered, then you're going to not get foreign litigation, 0:10:49.000 --> 0:10:50.440 if that makes sense. And I think it's fair to 0:10:50.440 --> 0:10:54.440 say also that UM in a blowout situation without that 0:10:54.520 --> 0:10:56.839 kind of evidence, I don't think anyone would. I don't 0:10:56.880 --> 0:10:59.439 think any court would entertain the losses that where there 0:10:59.440 --> 0:11:02.000 just wasn't the proof needed to show that the outcome 0:11:02.040 --> 0:11:06.800 was incorrect. Still do the president's statements make it hard 0:11:06.880 --> 0:11:11.000 to predict whether there will be litigation because he's used 0:11:11.000 --> 0:11:14.080 the courts as refuge time and time again to drag 0:11:14.200 --> 0:11:18.480 things out. So even if you don't have a verifiable 0:11:18.520 --> 0:11:22.800 claim acclaim with proof, you could still slow down the process, 0:11:22.920 --> 0:11:26.120 can't you. Yeah, I mean there's no doubt that you 0:11:26.160 --> 0:11:29.920 know that the a judicatory process for determining whether um, 0:11:30.040 --> 0:11:32.640 you know, weighing evidence and determining whether it's you know, 0:11:32.920 --> 0:11:36.600 provable facts exist that can't take time, and that does 0:11:36.679 --> 0:11:40.559 require courts and fact finders, you know, and administrative processes 0:11:40.600 --> 0:11:42.520 for that matter, to kind of go through carefully to 0:11:42.559 --> 0:11:44.240 make sure that things are right. And so I think 0:11:44.720 --> 0:11:47.400 very likely that there will be you know, this has 0:11:47.440 --> 0:11:49.760 been a headline for for weeks now. You know that 0:11:49.840 --> 0:11:52.800 we we shouldn't necessarily expect a decision um or an 0:11:52.800 --> 0:11:56.000 outcome on election night. You know, administrative and potentially judicial 0:11:56.000 --> 0:11:59.120 process you may take time, but again, if there is 0:11:59.360 --> 0:12:02.400 evidence that there's been a problem, courts will take that 0:12:02.440 --> 0:12:05.680 seriously and take their time in you know, addressing that issue, 0:12:05.760 --> 0:12:08.439 like happened in Florida for example, where it wasn't a 0:12:08.520 --> 0:12:11.440 question about fraud. It was this question obviously right with 0:12:11.480 --> 0:12:14.199 the butterfly ballot and ballot design, but the idea was 0:12:14.280 --> 0:12:16.200 that it took along time to kind of sort through 0:12:16.520 --> 0:12:19.080 the counting process or the recounting process in that case. 0:12:19.280 --> 0:12:21.920 So it's very possible that there could be administrative for 0:12:22.160 --> 0:12:26.560 judicial delays sort of as a result of whatever happens um. 0:12:26.600 --> 0:12:29.400 But in a presidential election, of course, there are hard 0:12:29.400 --> 0:12:32.600 and fast deadlines that are set by federal law and 0:12:32.640 --> 0:12:36.319 so um courts we are cognizant of those deadlines and 0:12:36.800 --> 0:12:40.040 try to ensure that their processes fall within those deadlines. 0:12:40.640 --> 0:12:44.200 In other words, that courts require provable facts, um they 0:12:44.240 --> 0:12:47.000 require evidence, and unless that evidence exists, there's not going 0:12:47.040 --> 0:12:49.600 to be There's going to be no there there. Thanks 0:12:49.600 --> 0:12:52.439 for being on the Boomberg Launchow, Rebecca. That's Professor Rebecca 0:12:52.520 --> 0:12:55.160 Green of William and Mary Law School, co director of 0:12:55.160 --> 0:12:58.720 the Election Law Program. That the Supreme Court agreed to 0:12:58.720 --> 0:13:02.280 hear two appeals from US and Trump's administration over immigration 0:13:02.360 --> 0:13:05.520 related policies. The new cases come on top of one 0:13:05.559 --> 0:13:08.640 that Justice is accepted on Friday to determine whether the 0:13:08.640 --> 0:13:13.439 Trump can exclude undocumented immigrants from the census counts, joining 0:13:13.480 --> 0:13:17.080 Eas Leon Fresco a partnered Hollandon Night. So the court 0:13:17.200 --> 0:13:23.680 has taken now three big immigration related cases. What's your take, Well, 0:13:23.679 --> 0:13:26.560 what's interesting about the three cases is the timing of 0:13:26.640 --> 0:13:30.760 the cases, which is that none of these cases potentially 0:13:30.880 --> 0:13:36.520 could survive a Biden administration, and Biden is elective, and 0:13:36.720 --> 0:13:41.080 so what will be fascinating is either these cases will 0:13:41.120 --> 0:13:45.520 sort of solidify a fee change in immigration law moving 0:13:45.559 --> 0:13:48.560 forward under a President Trump and a six to three 0:13:48.640 --> 0:13:52.760 card or they'll just feed are out and these policies 0:13:52.800 --> 0:13:56.160 won't be implemented, and they will be at no moment. 0:13:56.240 --> 0:13:59.120 And so that's what's fascinating about the timing of these 0:13:59.120 --> 0:14:02.200 cases is that they really set up either one of 0:14:02.200 --> 0:14:06.720 those two outcomes. Let's start with the census case. What 0:14:06.840 --> 0:14:10.520 does President Trump want to do? So President Trump had 0:14:10.640 --> 0:14:13.320 two goals with regard to the census. The first and 0:14:13.400 --> 0:14:16.440 his most important goal was he was trying to not 0:14:16.800 --> 0:14:22.840 count people with unlawful status or quasi immigration status is 0:14:23.000 --> 0:14:27.600 in the census because he believed that by counting those individuals, 0:14:28.080 --> 0:14:33.280 certain states that were more advantageous to Democrats would get 0:14:33.480 --> 0:14:38.480 more representation than states that were more advantageous Republican. So 0:14:38.600 --> 0:14:41.840 that was his first goal. And then the second goal 0:14:42.520 --> 0:14:45.760 was to speed up the accounts of the census because 0:14:45.800 --> 0:14:49.520 some of the states lagging behind had been states that 0:14:49.600 --> 0:14:54.120 were more traditionally represented by Democrats than some of the 0:14:54.160 --> 0:14:57.520 states who had not been lagging behind. So because of that, 0:14:57.720 --> 0:15:01.480 he had tried to shorten the time from which he 0:15:01.560 --> 0:15:05.200 had agreed he would collect census data, which was supposed 0:15:05.200 --> 0:15:08.360 to be until October thirty one, and he wanted to 0:15:08.400 --> 0:15:11.520 shorten that time until the end of September and what 0:15:11.640 --> 0:15:14.280 ended up happening. It ended up going through mid months 0:15:14.280 --> 0:15:18.000 of October because of the various litigation that happened. Tell 0:15:18.080 --> 0:15:21.400 us what the three judge panel based its decision on. 0:15:21.480 --> 0:15:24.880 The three judge panels said that the Trump administration couldn't 0:15:24.920 --> 0:15:28.360 do this. The three judge panel decided that it was 0:15:28.480 --> 0:15:33.760 unlawful for the President to exclude undocumented immigrants from the 0:15:33.800 --> 0:15:37.680 census because the way that the Constitution is written, it's 0:15:37.720 --> 0:15:41.520 written as persons, and when the Constitution wants to count 0:15:41.520 --> 0:15:44.880 citizens or something else, if it's talking about citizens, it 0:15:44.960 --> 0:15:48.640 refers to citizens. And when it refers to person, it 0:15:48.760 --> 0:15:52.400 refers to person. And so no matter what interpretation you're 0:15:52.400 --> 0:15:56.640 gonna use about what the original enumeration clause meant in 0:15:56.680 --> 0:16:00.080 the Constitution, it meant counting every human being was in 0:16:00.160 --> 0:16:04.040 the United States. And the judges also said that it 0:16:04.080 --> 0:16:07.920 would violate a separate requirement that the Commerce Secretary send 0:16:07.960 --> 0:16:12.600 the President a single set of numbers derived from the census. Yes, 0:16:12.680 --> 0:16:15.400 that's correct as well, which is that at the end 0:16:15.440 --> 0:16:20.160 of the day, the the Commerce Secretary. The problem is 0:16:20.280 --> 0:16:23.280 there's sort of this feeling that there's this black box 0:16:23.560 --> 0:16:26.200 of how this is going to get calculated, and they're 0:16:26.400 --> 0:16:30.800 the Justice Department was not willing to provide a clear 0:16:30.880 --> 0:16:33.640 answer as to how they were going to get to 0:16:33.720 --> 0:16:38.160 the count that excluded undocumented individuals. And so because there 0:16:38.280 --> 0:16:42.720 is a provision that requires the Sensive Bureau to provide 0:16:43.240 --> 0:16:46.560 one count to the President, that also would be violated. 0:16:46.560 --> 0:16:49.400 You're correct about referencing that. Let's talk about the timmy 0:16:49.520 --> 0:16:53.800 because the argument is scheduled for November. Obviously, the decision 0:16:53.840 --> 0:16:56.640 comes after that, and the Commerce Secretary has to send 0:16:56.680 --> 0:17:00.400 the numbers in by December thirty one, So how can 0:17:00.440 --> 0:17:03.680 they accomplish that unless you are they starting to figure 0:17:03.720 --> 0:17:08.320 out the undocumented immigrant numbers already. Well, so what's fascinating 0:17:08.359 --> 0:17:10.760 about this is this was an issue that was in 0:17:10.840 --> 0:17:13.719 dispute in the other census case, which is that the 0:17:13.800 --> 0:17:18.119 Census Administration had already said that they had no chance 0:17:18.160 --> 0:17:20.840 of being able to meet the December thirty one deadline, 0:17:21.160 --> 0:17:24.400 and that had been said repeatedly and on numerous occasions, 0:17:25.040 --> 0:17:28.000 and now the Department of Justice had changed its mind 0:17:28.000 --> 0:17:30.280 and said, no, give us a chance at least to 0:17:30.400 --> 0:17:33.640 meet the December thirty one deadline. So nobody knows if 0:17:33.640 --> 0:17:36.600 this deadline will be mad or not mad, and nobody 0:17:36.640 --> 0:17:38.840 knows how that number is going to be derived of 0:17:38.960 --> 0:17:42.359 who's undocumented. The only things that have been discussed so 0:17:42.520 --> 0:17:45.600 far are counting the amount of people that are in 0:17:45.680 --> 0:17:49.560 ice facilities and at least the new things that But 0:17:49.640 --> 0:17:52.400 if that's literally what we're talking about, we're talking about 0:17:52.440 --> 0:17:55.959 maybe twenty thirty thousand people, and so that's not going 0:17:56.000 --> 0:17:58.560 to make a difference of anything. And that seems to 0:17:58.600 --> 0:18:01.920 be a lot of way some resources for no good reason. 0:18:02.480 --> 0:18:06.359 And so the question is really what other modes of 0:18:06.400 --> 0:18:09.720 operations are they going to try to do to discount 0:18:09.760 --> 0:18:13.480 undocumented people. And really there's this other question of who 0:18:13.600 --> 0:18:17.879 is undocumented, because are you undocumented on a specific day, 0:18:18.000 --> 0:18:20.440 because a lot of people are in between status is 0:18:20.800 --> 0:18:24.040 their status has expired, but they're applying for a renewal 0:18:24.119 --> 0:18:26.320 of their status with U s c i S and 0:18:26.440 --> 0:18:28.680 that can take months, and a lot of people are 0:18:28.720 --> 0:18:32.399 waiting to fix their status the marriage applications, and so 0:18:32.520 --> 0:18:35.520 this question is not a simple question at all as 0:18:35.520 --> 0:18:38.520 to what it actually means to be undocumented. The court 0:18:38.600 --> 0:18:40.720 is likely going to be different when this is heard, 0:18:40.840 --> 0:18:44.639 because any Coney Barrett will most likely be on the court. 0:18:45.160 --> 0:18:49.480 Can we read anything into the courts October thirteenth order 0:18:49.680 --> 0:18:53.800 that left the Trump administration and the census count more 0:18:53.840 --> 0:18:58.879 than two weeks early. Well, I think the the Court 0:18:59.040 --> 0:19:03.359 is inclined to give broad deference to the president here 0:19:04.000 --> 0:19:08.439 on how the president operates the census. And so I 0:19:08.480 --> 0:19:11.000 think from that standpoint, even though there was the case 0:19:11.080 --> 0:19:13.639 that Justice Roberts had been a part of at that 0:19:13.840 --> 0:19:18.840 time too uh not allow the citizenship questions to be 0:19:18.880 --> 0:19:22.000 asked on the census, that's a different question than the 0:19:22.080 --> 0:19:27.000 operation of when the census was going to be actually completed, 0:19:27.560 --> 0:19:30.640 and that sort of the sensatory scheme there does give 0:19:31.040 --> 0:19:35.720 very very broad uh difference. And in fact, the thing 0:19:35.840 --> 0:19:38.760 is that the case ended up going. The census count 0:19:38.840 --> 0:19:41.880 ended up going much longer than it was originally supposed 0:19:41.920 --> 0:19:44.800 to go. It was extended because of COVID, and the 0:19:44.840 --> 0:19:48.359 other thing that had changed slightly was that the count 0:19:48.640 --> 0:19:51.840 by mid October when this decision had come out, were 0:19:51.840 --> 0:19:54.399 in the very high nineties in terms of count. It 0:19:54.560 --> 0:19:58.240 was it was very unclear how much more juice was 0:19:58.280 --> 0:20:00.920 going to be left into squeeze these out of these 0:20:00.960 --> 0:20:04.920 additional days. Because we were talking high nineties in all 0:20:05.040 --> 0:20:07.280 the parts of the United States, and so I think 0:20:07.320 --> 0:20:10.520 for those reasons is why the Court lifts in the state. 0:20:10.600 --> 0:20:13.280 So I don't know that that gets us anywhere with 0:20:13.320 --> 0:20:16.400 regards to the ultimate question as to who gets counted 0:20:16.480 --> 0:20:19.520 as part of the census. I'm wondering if the originalists 0:20:19.600 --> 0:20:22.320 on the Court, if they're going to be looking at 0:20:22.400 --> 0:20:27.399 the words in the Constitution, whether that may make a 0:20:27.560 --> 0:20:31.400 good argument against what the Trump administration wants to do. 0:20:32.520 --> 0:20:36.959 Right absolutely, when this executive order first came out, pretty 0:20:37.040 --> 0:20:41.280 much every legal expert from all walks of life, conservative 0:20:41.280 --> 0:20:44.720 and liberal, thought that this case would be very flimsy. 0:20:45.200 --> 0:20:47.440 So it is a bit surprising that we are here 0:20:47.480 --> 0:20:50.920 at the Supreme Court. But it also happens because when 0:20:50.960 --> 0:20:54.120 the federal government asked the Supreme Court to review something, 0:20:54.640 --> 0:20:57.000 there is a lot of difference that's given there. If 0:20:57.040 --> 0:20:59.160 it doesn't happen all the time, but it happens most 0:20:59.200 --> 0:21:02.320 of the time, And so we are where we are 0:21:02.440 --> 0:21:06.040 where this might end up being reviewed. Although, of course 0:21:06.160 --> 0:21:10.520 I think if if the Vice President Biden wins in November, 0:21:11.040 --> 0:21:14.960 then maybe that November oral argument uh takes a lot 0:21:15.040 --> 0:21:18.119 less importance. Or get three schedules or something else. So 0:21:18.280 --> 0:21:23.280 we'll we'll see the court takes cases because they want 0:21:23.280 --> 0:21:27.960 to overrule they don't want in place the federal Appellate 0:21:27.960 --> 0:21:30.600 Court decision. So in this case, that would mean the 0:21:30.680 --> 0:21:34.600 court took the case to overrule the three judge panel 0:21:34.680 --> 0:21:37.840 which voted against the Trump administration. Yes, that is the 0:21:37.880 --> 0:21:41.600 conventional wisdom that that's what would occur in a normal 0:21:41.640 --> 0:21:44.320 case like this, which is that the only reason is 0:21:44.359 --> 0:21:46.560 that the only reason that the case would have been 0:21:46.600 --> 0:21:51.600 taken would have been to overturn the Second Circuit decision. 0:21:52.080 --> 0:21:54.639 But here that might not be the case, because this 0:21:54.680 --> 0:21:58.199 issue is such a case of national importance that the 0:21:58.240 --> 0:22:01.040 court might just have taken it because the federal government 0:22:01.080 --> 0:22:03.879 wanted then to take it, and that this might be 0:22:03.920 --> 0:22:06.479 an issue that would come up in other decades as well, 0:22:06.920 --> 0:22:09.960 and so they would take it. But at the end 0:22:10.040 --> 0:22:14.159 of the day, I just I just don't know why 0:22:14.320 --> 0:22:16.240 that the Free Court would have taken it if they 0:22:16.240 --> 0:22:19.760 thought it was a completely frivolous argument. So for anyone 0:22:19.800 --> 0:22:22.879 to say it's likely that the Trump administration will lose, 0:22:23.400 --> 0:22:26.240 I think is maybe getting too far ahead of them. 0:22:26.240 --> 0:22:29.560 So if Biden does win, the count is in by 0:22:29.560 --> 0:22:33.880 December thirty one. He's not in office until January. So 0:22:34.400 --> 0:22:36.560 what difference does it make if Biden wins if the 0:22:36.640 --> 0:22:40.640 count is already in Well, that's a good question, and 0:22:40.720 --> 0:22:42.840 I think it will just depend on a do they 0:22:42.840 --> 0:22:46.160 get the count in in time? Be are there legal 0:22:46.240 --> 0:22:49.520 challenges which I think would happen to that count, and 0:22:49.560 --> 0:22:53.399 then see could then as a result of those legal challenges, 0:22:53.880 --> 0:22:59.159 a settlement be reached where the Biden administration actually performs 0:22:59.160 --> 0:23:04.880 account that doesn't include, uh, this reduction in undocumented individuals, 0:23:04.880 --> 0:23:08.119 If that makes sense. So that's how I think it would. 0:23:08.400 --> 0:23:11.119