Advisory Opinions

With the GOP’s Senate majority hanging by a thread, all eyes are on the Peach State and whether Republican Sens. David Perdue and Kelly Loeffler can hold onto their seats in their January runoffs. But could all of these election conspiracy theories that are being circulated by conservative pundits and politicians ironically end up depressing turnout among GOP voters in these races? “Over last night and this morning,” David explains on today’s podcast, “there was suddenly a lot of people who were sowing unfounded accusations of voter fraud, realizing that they may be reaping the loss of the Senate.” Today’s jam-packed episode also features a breakdown of several religious liberty cases, the White House’s alleged pay-for-pardon scheme, the U.S. census case, Attorney General Bill Barr’s special counsel appointment, and HBO’s The Undoing. Show Notes: -Donald Trump v. New York oral arguments transcript -Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census -Franklin v. Massachusetts -General powers of special counsel CFR -October 19 memo from Attorney General Bill Barr -9th Circuit Harvest Rock Church case -Supreme Court order on Harvest Rock case Learn more about your ad choices. Visit megaphone.fm/adchoices

Over Thanksgiving break, the Supreme Court struck down New York Gov. Andrew Cuomo’s strict coronavirus related occupancy limits to 10 or 25 worshipers in churches and synagogues located in orange and red zones in the state. In a 5-4 per curiam decision, the majority sided with Roman Catholic Diocese of Brooklyn and Agudath Israel, who argued that Cuomo’s COVID-19 regulations treated houses of worship differently from comparable secular institutions, especially considering the religious plaintiffs in question went above and beyond in preventing COVID-19 outbreaks within their doors. “From the standpoint of the plaintiffs,” David argues, “it’s sort of a double whammy of good facts. One, expressions of animus from public officials and hypocrisy from public officials. And two, they’re coming to the court with clean hands.” Later in the episode, David and Sarah also dive into a host of abortion related lawsuits and the U.S. census case before ending with some thoughts on election litigation. Show Notes: -Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, Jacobson v. Massachusetts, South Bay United Pentecostal Church v. Newsom. Learn more about your ad choices. Visit megaphone.fm/adchoices

In Monday’s emergency episode of the podcast, David and Sarah bring us up to speed on the Trump legal team’s latest litigation drama, which has become nothing short of a clown show. One of the most puzzling aspects about all of this is the striking gap between the Trump campaign’s public rhetoric about widespread voter fraud during press conferences and its much more modest—albeit still meritless—legal arguments in the courtroom. No matter how you slice it, the president’s legacy is on the line here. In Sarah’s words: “This is what he’s going to be remembered by.” Our hosts discuss the Trump campaign’s failed Pennsylvania election lawsuit and Thursday’s rather unconventional press conference given by Sidney Powell, Rudy Giuliani, and Jenna Ellis. Then Sarah’s husband, Scott Keller joins the podcast to spar with David about nationwide injunctions. Show Notes: -U.S. District Court Judge Matthew Brann’s opinion throwing out Trump’s Pennsylvania lawsuit. -“Nationwide Injunctions Will Be a Vital Check if Biden Overreaches” by Scott Keller in the Wall Street Journal. Learn more about your ad choices. Visit megaphone.fm/adchoices

Rudy Giuliani has come out of retirement for the first time in 28 years to litigate on behalf of the Trump campaign. To say his gears were a little rusty would be the understatement of the century: Giuliani walked into court this week and couldn’t remember the name of the judge, couldn’t remember the name of his opposing counsel, couldn’t remember the meaning of “opacity,” and couldn’t argue the proper standard of review in the case. As our podcast hosts remind us, effective lawyers not only know how to make a constructive argument, but also tailor their advocacy to the humanity of the judge. Giuliani did neither of these things. After catching up on the latest election litigation disputes, David and Sarah discuss imminent lawless action in the context of the First Amendment and two of their favorite television shows. Show Notes: -Morse v. Frederick. Learn more about your ad choices. Visit megaphone.fm/adchoices

A segment of the right-wing public has morphed into a conspiracy theory machine that is—in David’s words—propagating baseless voter fraud allegations at “a geometric rate that [bears] increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating.” Why are people on the right and the left so susceptible to electoral conspiracy theories? After David and Sarah play catchup on the latest developments involving election litigation, they dive into a 1st Circuit race-based admissions case at Harvard, the latest updates on DACA, and The Mandalorian. Show Notes: -Andrew Fleischman thread on election lawsuits -Harvard affirmative action case, DACA decision, history of discrimination with SAT and Jewish applicants Learn more about your ad choices. Visit megaphone.fm/adchoices

The Trump campaign is swinging for the fences in most of its litigation efforts in hopes that at least some of its legal arguments will be successful. But as our podcast hosts remind us, most of the president’s post-election lawsuits are unlikely to change the outcome even if the Trump campaign scores a few victories along the way. “The Trump administration could win, dunk on the opposition, hang on the rim, taunt its opponents, and nothing changes,” David explains. On today’s podcast, David and Sarah explain the overall legal context surrounding the president’s ongoing election litigation efforts and give us the lowdown on the latest voter fraud conspiracy theories. Plus, David and Sarah break down Supreme Court oral arguments for the Affordable Care Act case and discuss a race-based admissions lawsuit at Harvard. Show Notes: -“Fact Check: Debunking the Hammer and Scorecard Conspiracy Theory” by Khaya Himmelman in The Dispatch. -“Fact Check: Explaining the False Allegations About Dominion Voting Systems” by Alec Dent in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

Twitter is brewing with wildly unsubstantiated claims of voter fraud as election officials in battleground states continue to count ballots. For today’s myth busters edition of the podcast, David and Sarah discuss the nitty gritty details surrounding ballot-counting processes and whether the conspiratorial claims surrounding voter fraud allegations have any merit. “If voter fraud is a religion for you,” Sarah warns, “go find yourself another pod today.” They wrap things up with a conversation about exit polls and some Supreme Court punditry. Show Notes: -The Sweep: “Your 2020 Election Night Guide,” Employment Division v. Smith. -Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here! Learn more about your ad choices. Visit megaphone.fm/adchoices

It’s Election Day eve and our podcast hosts have their presidential race forecasting models at the ready. After a helpful breakdown on pivot counties in swing states, David and Sarah give us some punditry on the 15 Senate races they’re watching closely this cycle. “Generally speaking, the Senate and presidential numbers are getting closer together over the last few cycles, not farther apart,” Sarah says on today’s podcast. Check out this prediction heavy episode of Advisory Opinions, in which our hosts give us a state of play on the presidential race and offer their thoughts on a controversial election lawsuit in the Lone Star state. Show Notes: -David’s latest French Press, “I’m Here To Remind You That Trump Can Still Win” by Nate Silver in FiveThirtyEight, FiveThirtyEight’s presidential polling average in Pennsylvania, Texas election lawsuit. Learn more about your ad choices. Visit megaphone.fm/adchoices

We’ve already seen record early turnout this election cycle. Our hosts have three major takeaways from the surge: 1) It means the polls are more likely to be accurate (the registered voter number is likely to reflect the actual voter number), 2) It means that we’re going to see interesting shift in how both candidates’ spend time on the campaign trail before Tuesday, 3) It means we have a record number of absentee ballots, which will lead to a concomitant surge in election litigation. In the hopper for the rest of today’s podcast: judicial oaths of office, turnout in swing states, and election litigation galore (with a close look at Wisconsin and Pennsylvania!) Show Notes: -Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here! -Marquette Law poll on voters’ optimism that their preferred candidate will win, Wednesday’s Morning Dispatch: “Election Litigationpalooza,” a statement on the Pennsylvania ballot deadline litigation from Justices Alito, Gorsuch, and Thomas. Learn more about your ad choices. Visit megaphone.fm/adchoices

Echelon Insights predicts that we will see record turnout this election cycle. How might a surge in, say, 2o million new voters this year affect the presidential race in battleground states? “If we’re talking the day after the election about why the polls were wrong,” Sarah warns on today’s episode, “it will be because of the extraordinary turnout, and [pollsters] were unable to figure out where those turnout increases were coming from.” Tune in to today’s episode to hear David and Sarah’s take on early voting in swing states, the importance of political rallies, and the DoJ’s antitrust lawsuit against Google. Show Notes: -Join The Dispatch for a post-election gathering featuring congressional leadership, top policy and political experts November 9-10: Sign up here! -Most popular websites since 1993 ranked, Google’s statement against the DoJ lawsuit, and “For Trump Superfans, Huge Rallies Can't Resume Soon Enough,” by Andrew Egger in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices