Trump Attacks SCOTUS after Federal Election Takeover is Blocked

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0:45Michael Popok:Welcome to a special edition of Legal AF. There just seems to be a bombardment of United States Supreme Court decisions here as we enter the 4th of July weekend. Fireworks have started early, emanating from the U.S. Supreme Court. Many of the decisions we know are and can be categorized as bad. Bad for democracy, bad for voting rights, bad for immigration rights. Some of the decisions are good. So we're going to divide the cases up into bad and good, particularly around voting, about money in campaigns, dark money especially. If you hated Citizens United, you're going to hate what the United States Supreme Court just did in another case.

1:32Michael Popok:And I can't think of a better organization or person to sort of tie all this together when it comes to mail-in ballots and the fact that they're now going to survive the way that we've always known them and about dark money in politics than my next guest, who's David Fox, a litigation partner at the Elias Law Group. You know the Elias Law Group because you know Mark Elias and his democracy docket. He's been on the show. I've been on his show. He's been on my show. But when I heard that David was available to kind of make sense of it all, I said, let's get him on the show. Let's bring him on. Hi, David.

2:08Michael Popok:Hi. How are you doing today? I'm doing great. So I'm a senior partner type. Mark Elias and I are almost law school classmates. And I know that for every great first chair litigation partner that signs the briefs, there's somebody that's behind them, the brains of the operation, who are really writing a lot of the legal work and briefs and should get a tremendous amount of credit for what happens at the United States Supreme Court. You happen to be one of those people with Mark, right? That's right. It's been really a privilege to work with Mark on a lot of our Supreme Court cases this year, including the two cases that we just got this week.

2:45Michael Popok:Right. So let's talk about the two that came out. You've got the mail-in ballot case known as Watson, which was written by Amy Coney Barrett. No real shock there, given some of the comments she made during oral argument. And then you've got the decision related to the Supreme Court revisiting, once again, money in politics. And I guess they thought, well, corporations are people too, and they can pray a First Amendment rights to donate unlimitedly. And for all this time, we had this little kind of fiction about a lack of coordination between parties and political action committees. Let's be honest.

3:24Michael Popok:They were coordinating more than anybody gave them credit for. We certainly knew it. But now the barriers are gone. And Brett Kavanaugh wrote that decision. And you were on the briefs, I believe, on both. And certainly Mark Elias' law group was there front and center. Let's start with the good news. We got a great decision about mail-in ballots as we know them. Why don't you tell our audience what was the issue at stake? And not only what happened, because they sort of know what happened, but why did it happen? That's the insider stuff my audience comes for. So it was a huge victory for voters in Watson.

3:59For hundreds of years, federal law has set a particular day in November and said that is the day for the election for federal officers. And then in 2020 or thereabouts, the Republicans suddenly decided that that meant that every ballot anyone submitted in those elections had to be not just completed and not just mailed, but received by election officials by the end of the day on that day, even though those statutes don't say anything about it. And they've been litigating it in state after state ever since for all those times. And they lost and they lost and they lost. And then in the Fifth Circuit, shortly before the 2024 election, they won one.

4:37And the Fifth Circuit said, yes, every ballot needs to be received by Election Day or else it can't be counted. Now, it doesn't need to be counted before Election Day. They said for some reason it's received is the key to the election. They all need to be received by Election Day. And the Supreme Court just reversed that. they held for us that voters need to complete their ballots by election day, but that's it. As long as they're completed and mailed by election day, it's perfectly fine under federal law for them to be counted if they're received afterwards. So this is hundreds of thousands of voters have voted in that way in recent elections, and this means they can keep doing it going forward.

5:09Michael Popok:Even millions. I mean, California, 13 out of 16 million people voted by mail-in ballot. I don't know if they all took advantage of the seven-day grace period, but they certainly should be able to. And just to put a finer point on it, more than 30 states, this isn't just a red and blue issue, 30 states, especially after COVID, gave a grace period and recognized that voting, the act of voting, the word election is not standing around in a line with a cup of Dunkins, you know, waiting to go vote somewhere. The election happens when you mark your ballot. That's your election. And the fact that you have to then logistically put it in an envelope and have it mailed to get there before postmarked the date of the election.

5:53Michael Popok:That's not what the government argued. The government argued something else completely about what an election is, right? That's right. I mean, the government wanted basically to say because people didn't vote that way before the Civil War, when the first of these statutes were passed, that they can't vote that way now because the word election imports at least part of the practices that were used for voting back when these statutes were first enacted in the lead up to the Civil War. And, you know, they never had any good explanation for why you would have to receive all ballots by Election Day, but you wouldn't have to, for example, vote by announcing your vote publicly, which is the way most states voted before the Civil War, why you could have a secret ballot, which I believe no states had before the Civil War.

6:37And so it was just this picking and choosing of the historical approach that they wanted to focus really on this receipt. And there was never any good explanation for why that would be the one thing that these statutes require to state.

6:48Michael Popok:And Amy Coney Barrett in her decision where she joined the liberal or the moderate wing on the court as well. And did Roberts join her on that one? So you had Roberts, Amy Coney Barrett and the liberal wing in that in a five to four decision. She also said, and I saw it and you were you in the room for the oral argument? You're at the table. OK. So, and I played this clip before of her in oral argument where she's just like, I just want, she plays a great Columbo. I just want to understand something. You're not arguing against absentee ballots. And you're not arguing against the use of the postal service.

7:31Michael Popok:And you're not arguing against military ballots coming in late, postmarked by a certain time. But you are arguing against mail-in ballots. was that like the moment that that sort of intellectual dishonesty that of course and who was who was arguing john sour uh you know it was sour uh i believe are you i you know i don't remember who argued for the government i think most of her questions were actually for scott who was arguing on our side for mississippi although maybe a little half-heartedly but i mean as a matter of the federal law it just seems to me that your definition has to be consistent And it sounds like you're changing it for the earlier absentee ballots and saying finality has some kind of different force for the later received absentee ballots.

8:15Right.

8:16Michael Popok:Well, I think a state has to do whatever it would need to do to guarantee that on Election Day, all ballots, every cast vote is final and cannot be recalled. But it doesn't have to be final at the time it's sent. But it's OK to recall it if you send it two weeks in advance and you change your mind. That's not a problem. I withdraw. Yeah, I guess I'm having trouble seeing how the federal election day statute itself would necessarily. Well, it's about your definition of election. It's about your definition of what it means to cast a vote. But let's put that aside. But when she was on the government side, was that the moment when you guys in the room thought you certainly have Amy Coney Barrett's vote because there seems to be an intellectual dishonesty and slipperiness about their arguments about why all votes have to be received and counted.

9:07Michael Popok:Donald Trump's goal was to have all mail ballots show up on election day and be tabulated millions of ballots in one overnight so he doesn't have to be embarrassed when he gets beat by mail in ballots. Yeah, I mean, that's right. And, you know, even the RNC in bringing these cases never argued that the ballots all had to be counted by election day because like it's ridiculous. It obviously cannot be done in every state. It's just not possible. But it's absolutely true that the arguments they were making, they had no way to distinguish why you would need to receive the ballot but not count them.

9:40And yeah, I think it was clear watching that argument that Justice Barrett was on our side. I think some of the press accounts of the argument got a little bit confused. I think she was a little frustrated with some of the arguments being made by Mississippi and that got translated maybe in some of the press accounts into worry about the way she was going to come out. But I thought it was fairly clear she was trying to help him and that she was on our side.

10:03Michael Popok:Not a legal AF. I knew she was getting annoyed. She gets annoyed universally if she's not getting her question answered properly. But I definitely thought that she was with you at that time. I'm surprised it was actually five to four. But, you know, and to point to the Fifth Circuit for a minute, because I'm talking a lot on my other shows and my other videos, about the tryouts for the United States Supreme Court, right? Somebody jumped the gun about Samuel Alito's retirement. I've been saying for the last three months that he was definitely going to resign by the end of the summer. And when I saw Alito, Alito, Alito, Alito, Alito, I saw on every decision, many decisions, especially about immigration, I thought that was his swan song.

10:48Michael Popok:And then today NPR puts it up and takes it down. My gut is, and I'm not asking you to comment on this, but my gut is somebody saw a resignation letter and they didn't want to do it before the 4th of July weekend and it leaked out. And now he's walking it back because he wants to do it on his own time. Be that as it may. Did you observe anything when you're in the court for these hearings about Sam Alito? That was interesting. You know, I mean, he and the other conservative justices who voted against us really just wanted to talk about, is it a good idea? Is it a good idea to let these ballots come in later?

11:26Doesn't it cause all this doubt? Because the argument from the Republicans on this has gone from this enables fraud to more people think it enables fraud. Yeah, the appearance of fraud. Exactly. Because they keep saying it enables fraud. And that's why people think it enables fraud. But there's no evidence that it enables fraud. It has nothing to do with fraud. But so, you know, they really wanted to talk about is this good policy? And then they wanted to talk about things that just have nothing to do with what was going on in this case, like who can return the ballots? And is it just the post office or is it party officials or is it this person or is it that person?

11:57I think Justice Gorsuch asked about like roommates or none of that had anything to do with this case. And I think you see a lot of that in the dissent in this decision as well. That's just very focused on whether this is a good idea or a bad idea, which just is not the question.

12:11Michael Popok:The drinking habits of our predecessors seems to be on the mind of this court a lot. Between the marijuana gun case talking about our ancestors were drunks, and you can too, and this case where Amy Coney Barrett spent a considerable amount of time talking about the revelry and celebration and public drinking around voting. And that was a good thing because you got to vote in front of your friends and neighbors, and so it kept it honest. I'm like, what is going on with this? They've talked more about the drinking habits of our past than like in any other court term. Yeah, it really is something.

12:48And I, you know, I think this is a court that's more and more focused on history as they see it. And we just get odder and odder slices of history as they get narrower and narrower.

12:56Michael Popok:We call it the drunken history. It's like, there's like, it's like that show where the actors get drunk and they do, and they perform history. They're going to do that with Supreme Court justices. So you've got, And then, you know, she tried to narrow it, you know, to get her votes. And she said, this is about a statute. This is about statutes about the day of election. This isn't about the Constitution. But she did have language. I want to see how you guys feel about this language, because I was encouraged. On page 19 of the decision, where she, I'm paraphrasing, where she says, fraud is bad.

13:29Michael Popok:Voter fraud is bad. The integrity of the election is something that we should be concerned about. But it's an issue for legislatures, not for the court. And I thought by implication and not for the executive branch and not the president. I think you can make a lot out of that observation about the role of legislators, state and federal. I mean, she says at the top of her decision, the time, place, and manner of elections and the logistics around mail-in balloting, for instance, is primarily an issue for the states and then ultimately an issue for Congress. It starts with them, but Congress, of course, can make the changes on it.

14:14Michael Popok:How did you read? Were you guys encouraged by that particular observation about the role and the sole role of legislatures about voter integrity and voting rights? Yeah, I think it's absolutely critical. I mean, elections are an area where Congress has power and the states have power, and the president really is not supposed to have anything to do with it. And as this administration tries to federalize via executive order, via lawsuit, in a whole bunch of ways, just different aspects of the election system, it is just absolutely critical to see this statement from a majority of the Supreme Court that is reminding everyone it's primarily a state matter, first of all.

14:52And to the extent anyone in the federal government has anything to say about it, it's Congress and only Congress. And we look at what Congress has said, and we focus on the text of what they've said, and we apply the text of what they've said. And so that has enormous implications, for example, in the administration's 30-some lawsuits that they have pending against states across the country trying to exercise supervisory authority over the voting rolls, which is something that Congress has never said they should do and has never before been tried. And the president's just trying to do it with executive power.

15:22Michael Popok:Yeah, I'm going to make up a T-shirt for merch on our show. 0 in 10, we are.

15:30Michael Popok:That's right. territory, except in reverse. That's right. They're going to be 0 and 30 if Mark of the Elias Law Group and you have anything to say about it. So let's switch gears from that. So I was glad to hear, I'm encouraged to hear that you also thought that the way that she focused on the legislatures and excluded the presidency. I just, to just bottom line it, I just don't think Donald Trump has five votes to do any of his federal takeover, whether it's the SAVE, well, The SAVE Act passed, but it's never going to pass a filibuster in the Senate. But any of this like, oh, let's make a citizens database.

16:04Michael Popok:Let's use the Postal Service to decide who gets a mail-in ballot or not. I don't think any of this is going to fly with the United States Supreme Court. Not five of them anyway. Yeah. I mean, I think certainly this case is a helpful sign and a hopeful sign that they are not going to do that. And then, you know, they giveth and they taketh away. You know, like the day they drop the birthright citizenship, good. They're like, well, transgender people have absolutely no rights in society. Bad. And we're going to allow, if you thought the fire hose of dark money into politics was bad from 20 years ago, you're going to hate what we're about to do today.

16:43Michael Popok:And you guys, I mean, listen, you got to take these cases. You pour your heart out into them. You guys are amazing advocates with a great track record, but look what you're up against. So why don't you describe what happened with Justice Kavanaugh and the six to three decision about dark money in politics? Yeah. So this was a situation where the court resolved this question in 2001 in a case called Colorado, too, where they upheld the law that the court has now just struck down. And what they upheld was a restriction on how much money the party committees can spend in coordination with individual candidates.

17:18And so if the RNC during a presidential year wants to run advertisements in support of the Republican candidate, how much money can the RNC spend after talking to the Republican candidate about what kind of ads they're going to run? And in practice, this really means that the candidate designs the ad and then they go to the party and say, hey, can you pay for this ad? I'd like to pay for this ad because the parties usually have more money than the candidates. And there's a limit in federal law that sharply limits how much money the parties can spend. And the Supreme Court now has struck it down.

17:48We got involved in this case after the Trump administration changed its position and stopped defending the law, even though it's been upheld by the Supreme Court. And for decades, it had been defended by departments of justice from presidents who are Republican and presidents who are Democrat. But the administration decided they weren't going to defend it. And now Justice Kavanaugh, with a six to three decision, has overturned that decision from 2001 and said parties can spend as much money as they want in coordination with candidates. And, you know, it sounds like sort of a technical thing. But as a practical matter, what it means is that parties and large donors to national parties can just subsidize candidates who have no grassroots support, have no ability to raise money on their own.

18:32And so it is a really substantial change for the campaign finance laws. And it, you know, foreshadows, I think, more change for the campaign finance laws. This is a court that has not upheld a campaign finance statute since I think 2005. It just keeps hacking away at it and hacking away at it. And apparently they look around and they say, the problem is we don't have enough money in politics. And so they keep finding ways to let more money in. And we have an increasingly incoherent system as they hack off this arm and they hack off this leg. And before you know it, you don't have much left.

19:02Michael Popok:Yeah, I mean, for Kavanaugh to say, the audacity for Kavanaugh to say, this is a good decision. This is going to strengthen American parties. And the weakening of the problem with American parties is there's not enough money. There's not enough dark money into American parties. So I'm going to fix it. Yeah, I mean, I don't know that anyone really looks at our political system and thinks that's the primary problem. And, you know, I mean, there's this idea, well, the parties need help against the super PACs. But, you know, the parties still, for now, have limits on how much money that can be contributed to the parties.

19:35So we're still going to have super PACs. This decision is not going to eliminate the super PAC problem. And in fact, I think pretty soon we'll see super PACs in court saying, well, if the parties can coordinate with candidates, on what basis can you keep us from coordinating with candidates? And what in the first amendment says you can privilege us over them? And so that's an argument we already saw in amicus briefs in this case, and I'm sure it's going to be in front of the court soon.

19:55Michael Popok:Absolutely. That'll be a next term item and all of that. But the decisions that we're talking about today, you and me, are going to impact the outcome of the midterms, just as the congressional maps that you guys have fought so hard on the front lines of will impact representation of the Southern states. And for those that don't, why don't you just do a little bit of a plug for the Elias Law Group, the kind of cases that you work on and the ways that our audience can follow what you do. I guess maybe it's through Democracy Docket, but you can talk about it. Yeah, I think Democracy Docket's the best way to track all of our work and all of the work in these important areas.

20:33And, you know, we're all over almost all of this. So we were involved in almost all of these redistricting fights. We've been involved in, I believe we're involved in all of the lawsuits against states by the Trump administration were involved in, you know, a huge amount of these fights over campaign finance and all of that. And, you know, look, we win some and we don't win them all, but we got to fight every case as hard as we can. And every case we can win makes a big difference. And we've had quite a lot of success, even in a pretty adverse judicial environment.

21:01Michael Popok:David Fox from the Elias Law Group joining us here on Legal AF. First time on the show, so you don't get a jacket, but we'll have you back because I think it was great. Our audience definitely loves the exclusive briefing that you're able to do there. And we'll have you back as these cases develop. And when there's more filings and more wins for the Elias Law Group, won't you come back and talk to our audience about it? Sounds great. Thank you so much. Pleasure to be here. Thank you very much. You're on Legal AF. And if you want to help us grow this pro-democracy channel, just hit the free subscribe button.