Air Date: 4/14/2026

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#1784 Full Episode

JAY - HOST, BEST OF THE LEFT: [00:00:00] Welcome to this episode of the award-winning Best of the Left podcast.

Today we examine the legal battles shaking the foundations of American citizenship and voting rights as Trump's legal team uses the courts as a weapon against democratic participation — and how advocates are fighting back. We'll hear about the three-D playbook of deceive, disrupt, and deny used by authoritarians and being deployed by Trump ahead of the midterms, and what ordinary people can do right now to protect their votes before your podcasts. For those looking for a quick overview, the sources providing our Top Takes in about 50 minutes today include

The NPR Politics Podcast

Strict Scrutiny

Democracy Now!

Legal AF

The BradCast

and Stay Tuned with Preet

Then, in the additional, Deeper Dives half of the show, there'll be more in 3 sections;

Section A, Birthright Citizenship

Section B, Election Interference

Section C, Mail-in Voting

But first, a reminder to check out our new show, SOLVED! [00:01:00] on the Best of the Left YouTube channel! We're really proud of the show we're making, and think you'll get real value out of it. Plus, you checking it out will help us find new viewers on YouTube so thanks in advance for your all your views, likes, subscribes and comments. That's all on the Best of the Left YouTube channel, linked in the show notes.

And now, on to the show.

DOMEN: For more than two hours. The Supreme Court discussed if all babies born in the United States, regardless of their parents' status are automatically granted citizenship. US Solicitor General D John Soer began by laying out the thrust of his argument, 

clip: Mr. Chief Justice, and may it please the court, the citizenship clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children whose allegiance to the United States had been established by generations of domicile Here.

It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance. 

MILES: Through. Throughout the arguments though, justices [00:02:00] returned to that concept again and again with skepticism. Justice Neal Gorsuch pressed the matter in exchange with sour 

clip: whose domicile matters.

I mean, not the child, obviously it's your, it's the parents you'd have us focus on. And you know, what if, is it the husband? Is it the wife? What if they're unmarried? Who, who's domicile? Well, in, in the executive order, it draws a distinc between the mother and the father, and it's really the mother's domicile.

I think that would matter. Well, 1868 matters You're telling us. So what's, what's, what's the answer? The 1868, sources talk about parental, I'm not aware of them, drugging a secret between mother or father, but they say the domicile of the child follows the domicile of the parent. 

MILES: In her argument, Cecilia Wong, the National legal Director for the ACL U, said, the Trump administration's interpretation would upend the constitution and the lives of millions of people.

clip: The executive order fails on all those counts. Swaths of American laws would be rendered senseless. Thousands of American babies will immediately lose their citizenship, and if you [00:03:00] credit the government's theory, the citizenship of millions of Americans past, present, and future could be called into question.

All of this tells us the government's theory is wrong. 

MILES: One of the biggest moments came when Chief Justice John Roberts directly rebuked the government's argument. 

clip: We're, we're in a new world now, as Justice Alito pointed out, to where 8 billion people are one plane ride away from having a, a child who's a US citizen.

Well, it's a new world. It's the same constitution. 

MILES: I wanna bring in now NPR Supreme Court correspondent Carrie Johnson, senior political Editor and correspondent Dominico Montero. And joining us from the Supreme Court is NPR Legal Affairs correspondent Nina Totenberg. Hi to you all. 

clip: Hi 

KERRY: there. 

MILES: Hi. Hey, so let's start with the main takeaways.

Nina, let's start with you. 

KERRY: Well, you know, the, the, with the president of the United States for the first time ever, as far as we know in the courtroom, and sitting in the audience, I thought the court actually went out of its way to. It, it [00:04:00] not beat the crap out of any of the council and the to ask very probing questions without completely tipping their hands.

At the same time you heard this constant refrain of this is pretty clearly what the Constitution says. I know it may has problems today, policy problems, but it is what the Constitution says and that is sort of. The way the court, because this is a very originalist court, it doesn't think it's a living constitution.

And in the same way it believes, for example, that there are. St quite restrict, severe restrictions on, on what kinds of regulations there can be of firearms, uh, of guns. And that's the second amendment to the Constitution. But it's also an amendment to the Constitution, much like the 14th Amendment was a.

An amendment to the Constitution. 

MILES: Tell me a little bit more, [00:05:00] one of the most unprecedented aspects of these arguments is the fact that the president was actually there. Can you tell me a little bit more, about his reaction throughout all of this or how that impacted things? 

KERRY: Well, I have to tell you, in truth that sitting in the press section, I don't think any of us, except maybe one or two people on the far end could see the president at all.

And, the White House had. Imposed a new restriction on, on how we cover the court, which is they told us to sit down before the court started. The proceedings started, the, the guards told us to sit down and I very clearly said, you know, this is our job is to look and see what's going on in this courtroom, at least before, the proceedings begin.

And they said, well, I'm sorry. This isn't our decision. This is a new rule that the White House imposed on us. So I didn't see. Anything of the president, but part of that is of course, also that I'm short. 

MILES: Okay. Well, getting into the arguments, Carrie, I want to go back to what we heard from the Chief Justice, this moment where [00:06:00] he says it's a new world, but it's the same constitution.

That was a moment where I found myself, my eyebrows raised when I heard it. What was your reaction to that? 

KERRY: Yeah, a number of the justices at the center of the court from the Chief Justice John Roberts, to Neil Gorsuch and another Trump, a Trump appointee to Elena Kagan. An Obama appointee raised some questions about the Trump administration's case.

Roberts said, they, their arguments in some ways were quirky and idiosyncratic. Kagan called them esoteric. Gorsuch talked about how the, solicitor General John Sauer was reaching to sources in Roman Law to make his argument that the 14th Amendment didn't mean what it says. And, I think all of those things were significant Also, you know, the Trump administration has been advancing this argument that people are coming to the US people from Russia and China to have babies here, and that could pose some kind of national security threat or a threat to allegiance to the United States.

Roberts basically said. And, you [00:07:00] know, we may have a new social problem here in that, but we don't have a new constitution. And that's an issue that other justices came back to as well. Justice Kagan in particular basically said, I understand the policy considerations this, that this administration, is putting forth, but

it's not maybe enough or we would need a tremendous magnitude of evidence and argument to turn away from birthright citizenship, which this country has basically understood to mean something for 160 years or so. 

MILES: Yeah. Let's listen to a little bit more of Chief Chief Justice Roberts talking about the skepticism of sours argument.

You obviously put a lot of weight on subject to the jurisdiction thereof. But the examples you give to support that strike me as very, quirky, you know, children, of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to, the whole class of, illegal aliens are, [00:08:00] are here in the country.

I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples. 

MILES: Dominica, what did you make of how the justices received the solicitor general's argument? 

IAN: Yeah, I thought it was interesting that you had a, a, a majority of the Supreme Court's justices peppering, the solicitor General John d de Jon Auer, with really skeptical questions about the Trump administration's.

Position about birthright citizenship? I mean, I'm gonna be watching some of these justices for what they think specifically, you know, what their interpretation winds up being specifically on things like, bloodline versus, born in the country soil. Justice, Amy Coney Barrett specifically was saying, well, why didn't.

The Justice, why didn't the framers, you know, make it more so that it was about parental dissent as opposed to being born on the soil of the United States? Justice Kavanaugh, for example, also asked about the language differences between the 1866 Civil Rights Act. And the [00:09:00] 1868 14th amendment, which is really what's at issue in this case, talking about the language that, in the 1866, act, saying that they didn't want people to be citizens who are, quote, not subject to any foreign power.

Right? So that difference, the, the Alus attorney, Cecilia Wong noted was because of, the exceptions to, to the, to the birthright citizenship, which is traditionally thought to be things like, uh, ambassadors in the country and not having those babies born given citizenship, which they're not allowed to.

Right. And Kavanaugh seemed to acknowledge in the second round of questioning to Wong when he was pressing her on this, that, 'cause she said that the intent was the same for the 1866 laws, the 1868 law. That, well, if the language was different then history might be different. 

KATE: can you talk about how dramatic a break with existing law, you view the Trump's administration's arguments here to be 

GUEST 2: the Trump administration's arguments are.

Radical and wild. Yeah. The Trump administration's arguments are [00:10:00] completely at odds with the text of the 14th Amendment, the history of the 14th Amendment Supreme Court precedent, statutes, and decades of executive branch practice. The 14th Amendment's birthright citizenship clause is clear that all persons born in the United States are citizens, subject to certain very minor exceptions, and there is.

More than a century of uniform Supreme Court precedent on this point, starting with Wong Kim Ark from 1898. There is also legislation both from 1940 and 1952 that codifies birthright citizenship into US federal law. There are decades of executive branch practice, and then there are the reliance interests of generations of Americans who have come to believe based on our nation's.

Foundational principles after the ratification of the 14th Amendment that all babies born in the [00:11:00] United States are US citizens. It's part of the history and tradition of this country. 

KATE: Yeah, and I'm glad you used the term radical because there has been this, I think, concerted effort to sort of generate a rushed body of scholarship, um, that is designed to kind of create the impression that there is sort of a reasonable debate about both the history and the kind of original understanding of the first sentence of the 14th amendment.

And I just think that it's wildly dangerous to seed that ground. There is a very recent and manufactured debate against this very long backdrop of settled understanding and the sort of the break that the administration is seeking would be a truly radical one. So you mentioned Wong Kim Ark, um, which I think is an enormous problem for the administration, you might say, an insurmountable obstacle.

And look, of course, lawyers argue about the meaning of cases, the grounds for decision, right? The kind of how to read particular phrases and, and lines of reasoning in Supreme Court opinions. But it does feel to me like a [00:12:00] pretty audacious, and you know, I'll just say frivolous argument that the administration is making that Wong Kim Ark is not only kind of an insuperable obstacle to their arguments, but actually supports them.

So can you talk about why that argument that they're, I think with the straight face offering to the Supreme Court is just so wrong. 

GUEST 2: Kay, I agree with you. This argument that the Trump administration about Wong Kim Arc is fringe. It's radical. It's frivolous. It makes no sense. So what the Trump administration is trying to argue is that the Wong Kim arc holding was premised on.

Wong Kim Arks parents being domiciled residents of the United States. And this is a sentence from the administration's brief that I'm quoting. They're arguing that children of aliens lawfully domiciled in the United States fall within the citizenship clause because their parents owe primary allegiance to the United States, not a foreign power end quote.

So the [00:13:00] children born to those who are not what they call lawfully domiciled. So what they would say are people who are temporarily in the United States or here without documentation, their children should not be born as US citizens. And that is just not the correct understanding of Wong Kim Arc Wong Kim Arc is very clear.

That the citizenship clause should be interpreted to include all children of foreign nationals without regard to parental domicile with certain ex, extremely minor exceptions, and those minor exceptions are for. Children born to foreign sovereigns ambassadors, children born on warships and occupying armies.

But everyone else born on us soil is a US citizen. 

KATE: Okay. I'm glad that you offered that rejoinder. And I, you know, we'll see exactly how the justices kind of talk about one kmar in the, argument. I wanna maybe take you to something else that you [00:14:00] mentioned. The kind of litany of reasons that the administration is so wrong here, is that there's not only the kind of constitutional obstacle, but there's also.

The statutes that Congress has enacted. And those statutes I think are important for kind of a couple of independent reasons. One, they're just additional evidence, like the kind of executive branch practice that you're talking about that we have all always understood really since the 14th Amendment was added to the Constitution, that birthright citizenship was the law of the land, but they're also just independent legal commands, those statutes from the forties and the fifties.

So this is not the primary argument that the respondents, right, the individuals challenging the executive order are making or relying upon. But I think it's actually a really good and important independent argument, which is that maybe sort of, you could put to one side kind of resolving in an kind of ultimate way what the Constitution means.

But you have these statutes enacted in 1940 and 1952, and the clear meaning and understandings of those statutes preclude this executive order even if you didn't have a first sentence of the 14th amendment. So can you talk a little bit about [00:15:00] that argument? And I'm curious if you have a, a theory about why it's not more foregrounded in the briefing in the case.

GUEST 2: Sure. Kate, I agree with you. I think the statutory arguments are extremely important, and it's worth noting that in the legislative history for both the 1940 and 1952 statutes, the drafters of those statutes expressly rejected any domicile requirement by the Executive Branch committee that drafted those bills and then testified in its support before Congress.

So the very arguments that the Trump administration is now making about Wong Kim arc have been rejected in Congress and via these statutes. You know, I think that this is not. The primary argument that is being made by the individuals in this litigation because the constitutional question is so core to who we are as a nation.

And if the Supreme Court decides this case based on statutory grounds [00:16:00] alone, that gives Congress the opportunity to rewrite the 1940 and 1952 statutes, and that might be disastrous for the future of our country. So it is, I think, better strategically to make the argument on constitutional grounds, which are so clear, and it's shocking that this is in dispute and before the Supreme Court right now.

KATE: So as the two Kavanaugh clips that I played a couple minutes ago make I think quite clear, the court is uneven in its articulated concern for the consequences of its rulings, but I think it's important that people appreciate what it would mean on the ground for Trump to win here.

This is something I've heard you talk about before, but like I think it can't be emphasized enough. So what would that look like 

GUEST 2: if this executive order goes into effect? It would affect. Every person giving [00:17:00] birth in the United States, every family giving birth in the United States and every newborn in the United States, every time a person is in the hospital giving birth, the mother, the father, the parents would have to prove whether they are lawfully present in the United States, whether they're US citizens, whether they're lawful permanent residents, or whether they have some other kind of immigration status or no status at all.

Hospitals are not equipped in the delivery room to be checking people's passports, to be checking people's birth certificates, to be checking people's immigration paperwork. These are not easy, straightforward questions. It is complicated to figure out what a person's status is. 

KATE: Yeah, so that I just. It really drives home that this is not a ruling that will be sort of cordoned off to kind of affecting a subset of the population.

If you give birth, if you have family members who give birth, if you know people who give birth, if you have [00:18:00] any professional or other dealings with hospitals, this could be absolutely to kind of return to the idea of radical, a radically transformative kind of intervention in ways that I think people don't fully appreciate.

Just a lot kind of rests on our settled understanding of birthright citizenship and sort of, not only do hospitals not have the kind of processing capability that you were just alluding to, but you know, that's. Assuming people even have with them the paperwork that would be required to even set in motion some kind of verification process.

And a lot of the time they won't.

Democrats and voting advocacy groups have filed three separate lawsuits against President Trump's sweeping new executive order to limit mail-in and absentee voting ahead of this year's midterm elections.

Trump's order directs the Department of Homeland Security to create a state citizenship list. It also directs the US Postal Service to mail ballots only to. Verified, quote unquote, voters [00:19:00] voting rights experts have decried the executive order as an unconstitutional attempt by Trump to seize control of election administration from the states and Congress.

Plaintiffs who on a lawsuit said, quote, attempts to end voting by mail are part of the Trump administration's larger strategy to undermine elections and subvert the will of the people. Trump's attack on mail-in voting comes just days after he. Fended, his decision to recently vote by mail in Florida.

You know what? Because I'm president of the United States and because of the fact that I'm president of the United States, I did a mailin ballot for elections that took place in Florida because I felt I should be here instead of being, in the beautiful sunshine taking. But you were in Palm Beach served the last few weekends.

That's right. And I, yeah, and I decided that I was going to vote by mail-in ballot because I couldn't be there because I had a lot of different things. We're joined now by Arizona's Democratic Secretary of State, Adrian Fontes, whose blasted Trump's [00:20:00] executive order is disgusting overreach from the federal government.

Arizona's among several states. The Trump administration sued in order to access sensitive voter data. The state was also at the center of Trump's false claims of election fraud in 2020. Secretary of State, Adrian FTAs. Welcome back to Democracy. Now, why do you Sri describe the President's actions as disgusting and explain Arizona's mail-in vote system?

Well, thank you for having me first, and I call it disgusting because it is first and foremost. Article one, section four re reserves the power to establish the time, place, and manner of elections to the states alone and gives Congress a role. Now, the president has previously issued an executive order that he got shot down on the rule of law now in the country is he doesn't have a role in administering our elections, and yet he tried again.

This is a lawless. President, and that's why this is a [00:21:00] disgusting overreach. He's already been told by the courts, this is not his business, and yet he's trying to do it again. One of the other reasons that I called it that is because this is clearly an attempt for the president to pick his own voters.

He doesn't really care about the, the real voice, of American voters. Which would mean that he would expand the franchise. He would ask more and more ways, to, to find more voters, to be voting, qualified as they are, but to make sure that everybody had access, to make sure that all voters had convenient ways of casting their ballots so that, the governed could give their consent to the government.

That's the rule that we have been established by. So, but for both of those reasons, I think it's discussing now. Mail-in voting in Arizona is, what's kind of classified as a no excuse absentee system. You don't need an excuse to vote by mail. It was created by Republicans in the early 1990s. It has been promoted, by them and kept them in power here in Arizona for quite some time.

[00:22:00] And it's convenient. And what's also very important, lemme give you an example. My own 80 something year old mom. Does not need to stand in line and be kinda pressured to fill out a two page long ballot in some elections with up to 85 different elections on that two page ballot, which we have seen in Maricopa County, Arizona.

She doesn't have to feel rushed. She can do it at the convenience of her home, at her kitchen table, on her couch. Look up the propositions. You know, do research on the judges. Our no excuse absentee system. Our mail-in voting system in Arizona is robust. It is secure, and not only in 2016, but in 2024, it elected Donald Trump as president.

So what we're we have here is I think, some confusion on the part of the president about what's effective, what's secure. And, and, and really I think the maliciousness behind this, is, is, is, is been sh has been shown bare, on its face. He's trying to pick his own voters. And, [00:23:00] secretary of State fontes, you mentioned that, the, the, the mail-in voting system in Arizona dates back to the 1990s.

Had there ever been complaints, previously about the system, before the Trump era? Well, the one complaint we had about the system was that it, it used to be where, the registrar, voter, the county recorders, would mail a postcard to every voter, every single election, and the voters would say, yes, I want a ballot by mail and send it back.

Then they would send the ballot. So that ended up getting stopped and we had what was called a permanent early vote list. So you would sign onto it and that increased the vote by mail numbers year in and year out, without exception until these election conspiracy theories and lies about vote by mail started.

The list is no longer permanent, because of the prior governor and legislature, made it so that it is now called an active early vote list, and it's easier to get dropped off that list, although you're still [00:24:00] registered and you can still vote. So the complaints have only really started, under when, Donald Trump was the president.

And he spread his lies either, before an election, just in case he lost, he'd have an excuse. Or after an election because he felt like he should have won unanimously or some nonsense like that. I'm not even sure about how that works. Now, earlier this year you introduced statewide legislation, the Voters First Act.

What does that do and how are you trying to safeguard the integrity of the 2026 midterms in Arizona? Well, the F Voters first act had 10 different components in it, and unfortunately under the Republican leadership and the legislature, it no longer, I think is gonna see the light of day. But it really made a whole bunch of different spaces in our elections, much more secure.

It gave us. Funding for the E system. It made vote centers a part of the law, which means any voter in any county can vote anywhere in their county no [00:25:00] longer, allowing for precinct based voting only, which has shown to increase provisional ballots, which isn't always great. And it, it did a variety of other things that helped access, it helped convenience, it helped voters and it put a good chunk of money into, the election budgets for our counties, which, because Arizona is a bottom upstate, the counties really do a lot of the work.

I'm more of like a commissioner in a major sports league. We establish the rules. We certify the officials, we certify the equipment. It's the counties that do a lot of the work. So we were trying to bolster what they could do and really make it, better for the voters, because that's really kind of where the rubber meets the road.

HOST 2: Let's read from the petition page seven and eight, and I'll post it here on Legal af Substack, for paid members to read themselves.

This case presents an unprecedented constitutional emergency that demands swift action from this court. Article five of the of California's charter provides the attorney general with [00:26:00] authority to exercise direct supervision over every sheriff in all matters. Concerning their duties. That constitutional power is reinforced by the Attorney General's statutory authority to direct the activities of any sheriff relative to the investigation or detection of a crime.

But in the last month, the petition continues. Riverside County Sheriff Chad Bianco and the Riverside County Sheriff's Office have claimed the authority to disregard. The Attorney General's directives fundamentally altering the constitutional allocation of power between the state's chief law officer.

That would be Attorney General Banta, and its subordinate. Law enforcement officers in the sheriff's view the power to direct and take charge of investigations now belongs exclusively to him and not the attorney general, but that is incompatible with the state's constitutional and statutory structure that then goes on to describe what he did on page eight.

The importance of the dispute is only magnified [00:27:00] in this case because the sheriff rejects the Attorney general supervision to pursue an unprecedented investigation into purported election fraud. He has seized hundreds of thousands of ballots. I think the number is 650,000, which by law should have never been taken.

From the custody of the elections official, the integrity of those ballots is now at risk. And because the sheriff's misguided investigation is, is, is pre predicated on baseless claims of election irregularities, the sheriff's actions threatened to jeopardize public confidence in the upcoming primary.

That would be midterm and general election elections around the state. Effectively, Bianco just refuses to, to comply with his constitutional, he took an oath, constitutional requirements and statutory requirements. In fact, here's Chad Lo, Bianco, basically, inviting the California Supreme Court to find him in contempt to play the clip.

Good morning, California, [00:28:00] Riverside County Sheriff Chad Bianco. I am in Sacramento. Today, we are fighting some, some horrific public safety bills and trying to get some other good ones through. Our public safety committee as a side note, is not really a public safety committee. It is anti-public safety committee.

But that's a whole nother story. The real reason why I'm here today is to talk about the elections case, technically. We are very happy with the ruling. This morning from the California Supreme Court that they're going to take this case. They are, siding with us in what we have done so far, and we will have arguments presented to them, for the merits of our case and for them to basically, eventually what we are very confident they will allow us to continue this investigation despite the Attorney General's attempts to cover it up.

So, unfortunately we are status quo. We are still at the hold of a court, so we are not allowed to progress with the counting of the ballots. And, we'll just continue fighting for this for you, and we'll make sure that a investigation, like any investigation is completed and not swept under the rug [00:29:00] like our attorney general would like to happen.

So, stay tuned. We'll keep you posted. So what they're looking for. First they started in, procedurally in a couple of other courts. One court told the attorney General, this is the wrong court, file it in an appellate court. They filed it in an appellate court. The appellate court, had scheduled a hearing on it, but in the meantime, they skipped a step and filed it and lodged it with a direct appeal, a direct petition to the California Supreme Court under some, provisions there.

That give direct, jurisdiction to the Supreme Court in, in certain unique matters. Certainly this one, when you have an out of control sheriff who's not listening to the Attorney General, who is his boss, you need a mandamus in order to protect the public interest, and that's what we have here. The good news is that after.

This has been kicking around since the beginning of March, where finally the Attorney General has a clear line of sight to a [00:30:00] resolution in his favor, and with the California Supreme Court, not only taking it seriously, but deciding that they're going to decide this case, this petition and ordering Sheriff Bianco.

S recent posting, notwithstanding not to destroy anything in his possession as they get their arms and jurisprudential minds around this case. What I like about. Reporting about this case is to show you, 'cause I get questioned a lot by our audience. Are the attorneys general ready for the worst things that could happen, uh, concerning their vote?

I think voting is one of the major concerns of our audience. What happens to their vote? Making sure their vote is protected and who's out there to protect them? Who are the firemen to run or the fire people to run into the burning building? But Rob Banta, the other 23 Democratic Attorneys General, the American Civil Liberties Union, democracy Forward, and groups like the naacp, they are [00:31:00] immediately running into court and getting stay orders.

Blocks, temporary injunctions. And yes, they are doing tabletop exercises of what is the worst thing that they can imagine, even beyond their wildest imagination, Donald Trump and maggot to do about voting, about funding, about civil rights, about, you know, a federal takeover of states. And they are ready.

They have many of these. Petitions in draft, ready to go at a moment's notice. That's why they get into court so quickly. Even I who have handled emergency hearings in my own career, I'm even impressed by the velocity at which these organizations are getting into court and getting great results.

Sometimes we focus too much. On the United States Supreme Court and the handful of decisions, as devastating as they are to our way of life, to our constitution, they are, they are [00:32:00] important. I'm not minimizing them, but we have to focus on the thousands of other cases and the success rate of up to 90%.

That the, that the, these groups are having, including Rob Bonta, attorney General. I mean, we're gonna have a monsoon. I'll give him a major pat on the back. He is, these are hall of fame numbers 90% of the time, winning percentage. And that's where justice gets done primarily in America, at the lower court level, at the federal district court level.

At the first level of appeal, not even getting to the United States Supreme Court, at the state Supreme Court level, at the state appellate court level. I mean, if you add up the total amount of cases that a Supreme Court will decide in a year. You know, actually on, on the merits or procedurally, you're talking about a low hundreds, maybe a hundred with the emergency docket, right?

Thousands and tens of thousands of cases are going on right now about the Trump administration's actions or those who are adjacent to [00:33:00] them. Every day there's a judge somewhere, federal or state appellate or trial that is dealing with a Trump or Trump related constitutional or statutory breach. We are prevailing.

That's why I'm so glad to be here to support people like Attorney General Rob Bonta and the Democratic Attorneys General. I promise you I'm working this week to get Attorney General Bonta on to speak to you directly in the meantime for follow ups on this case, and it's a fast moving case. 

Can we just set the context here, which is that Mississippi is one of about 20 states that have provisions like that which permit ballots, that are casted and postmarked by election day. Put in the mail, but then received in the case of Mississippi up to five days later, it permits the state to count those votes.

And among the people who make the most use of this sort of a safe harbor provision, some states have separate laws that that govern this [00:34:00] are members of the military serving away from home. So it seemed almost unthinkable to me. This, sort of law would not pass muster, but, and look, and maybe we can talk about it.

The chief justice certainly played his cards close to the vest yesterday. Yep, yep. It was hard to get an accurate vote count beyond, you know, the three conservative justices, Thomas Alito and Gorsuch, who seemed to not have a lot of use for this statute. And of course the progressive justices who seem to believe that the law means what it says and, and that it worked well.

Who knew? I know, right. Well, let's talk about it. Let's talk about your impressions first. 

IAN: Just two quick points. So the first is, it's interesting because service members actually have their own statute. There's a statute called UO Ova, the Uniformed and Overseas Citizens Absentee Voting Act. And you know, Joyce, it's possible that you could split the difference between U Ova, [00:35:00] which is a federal statute, and therefore would not run the same preemption concerns that Mississippi's law would versus a state saying, we will take any late arriving mail-in ballot if they're postmarking times.

So, you know, I think it's possible if a bit cynical that the court could find a way. To block Mississippi's law without messing with foreign service member overseas vote and overseas voting. What I found so galling about the arguments, Joyce, and especially, I mean you mentioned Thomas Alito and Gorsuch, these are, you know, supposed textualists and so much of the oral argument was like a parade of fake horribles.

That one would only really have a sense of if one spent all their time consuming right-wing media. You know, sort of concerns about election fraud and concerns about just, I mean, justice Kavanaugh at one point talked about the blue shift. 

clip: Professor Pildes and others have said that late arriving ballots open up risk of white might [00:36:00] destabilize the election results.

If the apparent winner the morning after the election ends up losing due to late arriving ballots, charges of a rigged election could explode the longer after election day. Any significant changes in vote totals take place. The greater the risk that the losing side will cry, that the election has been stolen.

End quote. And my question is, my questions one, is that a real concern? Two, does that factor into how we think about how to resolve the scant text and the maybe conflicting or evolving history here? 

IAN: It's like that's 

PREET: not, has you ever watched a baseball game? Sometimes a team, right? It's bad. Is leading. In the early innings and takes over the leader, 

IAN: but it's pretty, it's worse.

It's worse than that. Yeah. I mean like that, that's the, that is the, I think most superficially obvious analogy, it's worse than that because there is, it's not like we vote one inning at a time. Like the order in which ballots are counted doesn't change the [00:37:00] fact that as long as they're all cast by a date certain, they're all valid.

PREET: So, can I ask a question? 'cause it's sort of legal slash. Philosophical slash sort of metaphysical question was, when does one consider a ballot to have been cast? Right? Is it when you fill out the thing? Is it when it is received? Is it when you pull the lever? Is it when you know, could someone take a photograph of your filled out ballot at home before you mail it?

And could that suffice talk about why that was an issue, what was important about it, and what the conclusions were? Because it seems to be. Kind of a little bit, you know, how many angels dancing on the head of a pin? Was it that or something more, more substantive? 

IAN: A little bit of both. Preet. I mean, I think the, the best you can do for a textual argument in support of the fifth Circuit's position is that a ballot is cast when it is received.

And that receipt in this context can mean different things. So when those of us who vote in [00:38:00] person go to the polls and we press the button, and we put the little piece of paper into the machine. That is, I think, the obvious moment at which we have cast our vote because we have given it to the election officials.

They have received it. Obviously, mail-in voting increases the, the real and metaphorical space between the voter and the voting official. And you know, I think the question is, is it fair to say the vote isn't actually cast until it's in the hands of the state? In which case, maybe you are making an argument that even a postmarked, you know, by election day ballot is still coming in late.

I guess it just, it seems to me that that's inconsistent one with how we think about the post office, right? It's inconsistent with what in contract law is known as the mailbox rule. And it's inconsistent with what I think voters would think, which is I think a voter would think that they've cast their vote, not when someone they've never met opens an envelope, but when they've taken the last act over [00:39:00] which they have control to submit their ballot.

PREET: Tax day is coming up. Tax day is coming up. Just to use that analogy. Yeah. For a moment. 

IAN: Yeah. 

PREET: Quickly. I mean, people file their taxes electronically mostly now, but am I right that that mailbox rule applies to your taxes? Sure does. Which are very, very important. Yep. You don't have, it does not have to be received by April 15th, just postmark by April 15th.

Right. 

IAN: It's also how the Supreme Court operates just to, you know, just to take one potentially relevant example, right? A, a brief is timely filed in the Supreme Court if it is postmarked on the day it is due, not if it's received by the day it was due. And you know, that is because all of these rules recognized in different ways, but for the same reason that it would be unfair to the person who is compliant with a deadline to lose control over when their compliance takes place.

HOST 2: Justice Gorsuch has an argument though. He says to Mississippi's solicitor General. Well, I've read your law and your law. [00:40:00] Would permit someone to pull their ballot back out of the mails. Right. And so it's actually not received until it's been opened and stamped and they're about to count it. And Mississippi's solicitor, general protests, no, no, no.

Justice. That's not how our law works. And Justice Gorsuch reads the statute to him. 

clip: You could admit, my hypothetical could happen, but you say it can't happen in Mississippi because recall's not allowed. I couldn't find that anywhere in Mississippi law. In fact, what I did see was a statute that says, that you, you, that the Secretary of State can promulgate rules and regulations.

That's 23 15, 637 3. And then I went and looked at the regulations and rule 2.1. Says that an absentee ballot is the final vote of a voter when the ballot is marked accepted. That doesn't preclude recall, [00:41:00] and in fact, that allows recall. I, I, I don't, I respectfully don't agree with that, your Honor. I mean, what, where, where does it say recall's not permitted?

I couldn't find that Anywhere in your statutes or the rule. And I think by providing the ballots are final when cast under our statute. No, it doesn't. It says they're, they're final when marked accepted. That's the regulation, your Honor. Yeah. Yeah. And it's your regulation. Yeah. And, and it allows, recall. It does.

I respectfully, it does not allow Recall, your Honor, the ballot. Show me. Where would you read to me the provision that precludes it? 

HOST 2: Do you think that that argument, that Justice Gorsuch tried to make there this sort of bizarre, textual reliance on something that doesn't make any sense using a wild hypothetical and he, he does.

He comes out with, well, what if a candidate, what if it comes out the day after the election that he committed sexual impropriety and his opponent tells people to go and. Claw their, their ballots back from the post office and they do. And it swings the election, right? I mean, we are in crazy [00:42:00] town. But do you think this argument might get some traction with Five Justices 

IAN: choice?

Maybe. But you know, even if that is an argument against traction, my understanding is it's pretty specific to Mississippi. And so, you know, then you might have the Supreme Court saying there's a problem with Mississippi's law. Only because it allows for that claw back, which is where, you know, whereas states that don't, don't have that problem.

And that gets back to the point, which is, you know, to what extent are the justices actually trying to solve a real problem here? 

PREET: Yes. 

IAN: And to what extent are they, you know, sort of playing political conspiracy theory just because they want to? I mean, you know, o obviously the court had to take this case once the Fifth Circuit said the Mississippi law was preempted.

I guess I just don't understand why the court thinks this is something it ought to be doing, you know, and why it's something it should be spending capital on 

MARK: one reason why so many states have these laws is that military and overseas voters yes, have long [00:43:00] struggled. To get their ballots in by election day, understandably. Right. Have you ever tried to ship something abroad?

It's not easy. Mm-hmm. If you're stationed on a military base, if you're living abroad, there are all kinds of logistical difficulties in getting these ballots back. So there are a lot of states that actually enacted these laws specifically to help military and overseas voters. Mm-hmm. And when Congress came in a a few decades ago.

Issued these new rules about, milit military and overseas voters. It specifically deferred to the state's ballot deadlines. So Congress knew at the time that some states were allowing these ballots to come in late, as long as they were sent by election day, and Congress deferred to those laws in those statutes.

And yet now we have, you know, these Republican politicians, these republican lawyers. Claiming that Congress somehow wanted to ban states from counting late arriving ballots. The opposite is true to the extent that there is any federal law on this. It's Congress saying, yes, states, you can [00:44:00] count these late arriving ballots.

We're deferring to your ballot deadlines. So this is, in addition to a completely absurd fantastical legal theory just flying in the face of support our troops. Because what this. Theory would do in practice is ensure that a whole lot of service members who are serving in un uniform abroad would not be able to have their votes counted in elections.

BRAD: I'm, I'm old enough to remember Republicans making a whole lot of noise about that. Back in 2000 when the, when the presidential race was ultimately decided in Florida. 537 votes, and Republicans were attacking Democrats for not allowing, late arriving mail ballots, from the military to show up.

Yep. Now, we should note Democrats actually did allow for late arriving military ballots to be included in the final totals. The fight was actually in that case about ballots. I think, that were not postmarked that could have been sent at any time. Even after the election, but the Democrats allowed it to, you know, [00:45:00] allowed those to be counted as well at the time as Republicans insisted, would an adverse ruling here in Watson, VRNC actually block those late military votes from being counted?

As well. 

MARK: Yeah, absolutely. And Justice Sotomayer brought this up. She said we might have had a different president if this rule had been in effect in 2000 because of the issue of late arriving mail ballots from overseas from military voters, which Republicans fought tooth and nail to count during Bush v Gore.

Because they suspected they would be disproportionately democratic. You didn't hear them say back then that Congress had secretly banned late arriving ballots. Like this is a very novel theory that was concocted only after Donald Trump's campaign against mail voting created a partisan split. In mail voting that ensured that these ballots would be more likely to be cast by Democrats, meaning that any attack on mail voting would disproportionately hurt democratic politicians.

BRAD: I, I gotta tell you, I mean this whole case and, the arguments [00:46:00] that we heard seems just like a no brainer. I mean, it seems incredibly stupid to the question of, of why this is even being heard before the, before the high court did the, the solicitor general, the Mississippi Solicitor General, as noted a Republican do an effective job in no rebutting these things.

MARK: So this solicitor General Scott Stewart has appeared once before the Supreme Court, before these arguments, and that was to defend Mississippi's abortion ban in Dobbs. This is a very conservative Republican who probably hated being put in the position of having to defend this law, and my sense was that his heart really was not in it and that he, I don't think he threw the case, like I don't think that he lost it on purpose, and I don't know that he lost it at all.

But he didn't raise the most robust or forceful defenses of the law that he could have. And by the way, there was a lot of reporting on these arguments that said, oh, it looks like Mississippi's gonna [00:47:00] lose, and all these, these, state laws are gonna be thrown out. I don't necessarily agree with that. I think that impression was created because the Mississippi Solicitor General did such a terrible job.

Mm-hmm. And the justices were really beating him up, and he didn't have a particularly good response to Gorsuch's question. It took him a while to get to the point where he just said. By the way, recalling your ballot in Mississippi is illegal. You can't do it. And no one has ever done it before. He didn't have the right kind of responses to keep the arguments moving in his direction.

And so I think that frustrated the justices and when that happens, they tend to all kind of gang up as as occurred here. Mm-hmm. But I think there's still a chance that Mississippi could prevail and that these laws could survive because you know, the early voting issue is paramount and there is no.

Defensible way to separate out late ballots from early ballots. And if the Supreme Court is going to crack down on early voting too, I mean, it's going to disrupt voting in every single state, 150 days before the midterm elections. That seems like an unwise move now. The [00:48:00] court has made unwise moves before.

BRAD: Yeah, 

MARK: but even for this scotus, I think it's a bridge too far. 

BRAD: Well, I'm glad to hear you say that because I wasn't able to watch the, the hearings. The, the oral argument live or listen to it when it happened, I started seeing a lot of headlines about, you know, court seems inclined to, to overturn late mail-in ballots from a lot of outlets.

I'm glad to hear that you, you are at least not, quite as certain about that. Let me, well, I'll get to that in a moment, but just a few more points here. If this were to be overturned, mark. It would also mean that postal workers, if they wanted to, I guess, could purposely affect elections by slowing down delivery of mail.

There was a recent case that it was, decided that you could not sue a, a postal worker specifically for, trying to delay your ballot. And I, I don't believe that postal workers at all would do this as a whole, but if I had a, but they've 

MARK: done it before, 

BRAD: but they've done it [00:49:00] before and. If I have fears about them doing that, mark, isn't that enough to, to do something about it?

Just my fears alone. 

MARK: Yes, it should be. It's an excellent point. I mean, I, you know, I have story, 

BRAD: do we respect story, do need to go on Fox News and, and, and promulgate this fear so that people have it so that then we can get a, a decision from the Supreme Court on it? 

MARK: I think so. I, I think that's a great move, because surely the Supreme Court will be justice as solicitous.

Of, of progressives concerns about mail voting as, as, yes. Re Republicans concerns, you know, I respect our mail carriers, but the reality is that it only takes a few bad apples to seriously wreck bail voting for entire communities. Yep. You know, think about how many parcels and pieces of Mail one carrier delivers.

There have been instances in just the last few years in which individual postal workers have destroyed or delayed, or refused to deliver hundreds of mail ballots. Mm-hmm. Which in a close election could be 537 votes. How about that? Could make all the difference. And I think this was like the [00:50:00] worst possible time for the Supreme Court to take away our ability to sue the postal service for damages when this occurs, because the, the postal service needs to be on alert.

It needs to have incentive to guard against this. It needs to know there will be serious consequences. If postal workers do this, and the Supreme Court just put a shield around the postal service and made it impossible for anyone to sue for damages when their ballot is illegally withheld or destroyed, that is bad news, and it's part of a much broader assault on mail voting that we're seeing from the conservative justices at this moment.

Speaker: We've just heard clips starting with

The NPR Politics Podcast reporting on a skeptical Supreme Court grilling the Solicitor General over Trump's executive order ending birthright citizenship

Strict Scrutiny laid out why the Trump administration's birthright citizenship arguments are "radical and frivolous," contradicting the 14th Amendment, Wong Kim Ark from 1898, and statutes from [00:51:00] 1940 and 1952

Democracy Now! spotlighted the Arizona Secretary of State blasting Trump's mail-in voting restrictions as an attempt to "pick his own voters,"

Legal AF walked through the California Supreme Court's decision to take up Bonta's petition against Sheriff Bianco, who illegally seized 650,000 ballots under the pretense of investigating election fraud

The BradCast traced the Republican reversal on late military ballots from 2000's Bush v. Gore fight to today's Watson v. RNC case, calling the new theory a partisan invention tied to Trump's war on mail voting.

And Stay Tuned with Preet examined the Supreme Court's oral arguments over Mississippi's law allowing mail-in ballots postmarked by Election Day to be counted up to five days late

And those were just the top takes, there's lots more in the deeper dives sections,

But first, a reminder that this show is produced with the support of our members who get this show ad-free as well as early and ad-free access to our other [00:52:00] show, SOLVED! Including a members-only backstage segment, all via podcast. We've also launched SOLVED! on the Best of the Left YouTube channel but episodes are delayed there.

The show features our team of producers discussing a carefully curated selection of articles and ideas to then SOLVE! some of the biggest issues of our day.

It's important to remind you that each episode of Best of the Left takes about 25 hours of human labor to produce and, SOLVED! isn't too far behind.

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or you can simply email me to [email protected]

As for today's topic, I like to start with a story.

In December 2019, a woman identified in court documents as C.M. got into an argument with her boyfriend, Zackey Rahimi, in a parking lot in Arlington, Texas. When she tried to leave, he grabbed her, threw her to the ground, dragged her to his car, and shoved her inside so hard [00:54:00] her head hit the dashboard. When he noticed a bystander watching, he pulled out a gun and fired at them. Then he called C.M. and told her if she reported any of it, he'd shoot her.

A Texas court granted her a protective order. It found Rahimi had committed family violence and was likely to do it again. The order explicitly prohibited him from possessing a firearm. He kept his guns anyway. Over the next year, he threatened another woman at gunpoint, and then between December 2020 and January 2021, he was involved in five separate shootings. He fired into someone's house after a drug deal. He shot at another driver after a car accident. He fired a gun into the air in a residential neighborhood. He shot at a car on a highway. He shot up the parking lot of a Whataburger because his friend's credit card got declined.

Police searched his home, found a rifle, a pistol, and a copy of the restraining order that said he couldn't have any of it. He was convicted under a federal law [00:55:00] that bars people under domestic violence protective orders from owning guns, a law that had been on the books for decades, upheld repeatedly, and never seriously questioned.

Then the Supreme Court changed the rules. In 2022, Justice Clarence Thomas wrote the majority opinion in a case called New York State Rifle and Pistol Association v. Bruen, which said that for any gun regulation to be constitutional, the government has to prove it's consistent with the historical tradition of firearm regulation in this country. Not whether the regulation makes sense. Not whether it protects people. Whether there's something like it from 1791.

So the Fifth Circuit Court of Appeals took another look at Rahimi's conviction and threw it out. Their reasoning was straightforward: in 1791, there were no domestic violence restraining orders. There were no domestic violence laws at all. Wife-beating wasn't a crime in any American [00:56:00] state until 1850. Women couldn't vote, couldn't own property in most states, and had essentially no legal personhood independent of their husbands. So there was no historical analogue for a law protecting C.M. from a man who beat her and shot at people, because the men who wrote the Constitution did not consider C.M.'s safety a question worth asking.

The Supreme Court eventually reversed that decision, eight to one. But the fact that it was a question at all, that a federal appeals court looked at a man who assaulted his girlfriend, threatened to kill her, and then went on a shooting spree and said the Constitution protects his right to keep his guns, that's not a glitch in originalism. That's originalism working exactly as designed.

And the same logic is running through everything right now. The question in the birthright citizenship case before the Supreme Court is who gets to be a citizen. The Fourteenth Amendment's text is about as [00:57:00] clear as constitutional text gets: all persons born in the United States and subject to the jurisdiction thereof are citizens. The Supreme Court affirmed that in 1898 in United States v. Wong Kim Ark. Lincoln's own Attorney General wrote an opinion supporting it during the Civil War. And yet the Trump administration issued an executive order challenging it, and justices on the Supreme Court entertained the argument. In the mail-in voting case, the question is who gets to participate in elections. The Constitution says Congress sets election day. It does not say states can't count ballots that arrive after that day, and for over a century nobody read it that way. But now conservative litigants are arguing that the word "day" means something it never meant before, and some justices seem interested.

Every one of these cases is ultimately asking the same thing: who is a legitimate member of civil society? Who's [00:58:00] protected? Who gets a voice? Who counts? And in every case, the answer is being filtered through a methodology that defaults to the judgment of people who excluded most of the population from membership.

That methodology is called originalism. And here's what doesn't get said enough: it's not an ancient legal tradition. It's a forty-year-old political project.

In July 1985, Attorney General Edwin Meese stood up at the American Bar Association's annual convention and announced that the Reagan administration would pursue what he called a Jurisprudence of Original Intention. Before that speech, originalism as a formal legal theory barely existed. Steven Calabresi and Gary Lawson, who co-founded the Federalist Society and worked in Meese's Justice Department, wrote in their 2024 book The Meese Revolution that someone in 1983 looking for a theoretically sophisticated defense of originalism would have [00:59:00] found, in their words, literally nothing.

The Federalist Society, founded in 1982 as a conservative student club at a few law schools, became the distribution network. They identified promising young lawyers, mentored them, credentialed them, and built a pipeline that fed directly into judicial appointments. Within forty years, at least five current Supreme Court justices are current or former members. Chief Justice Roberts served on the steering committee of the D.C. chapter. By 2010, even liberal Justice Elena Kagan felt the need to say at her confirmation hearing that we are all originalists now.

That's not a philosophical breakthrough. That's a marketing triumph. And the product being sold is the idea that these enormously consequential questions about who belongs and who's protected are really just neutral questions about what words meant in 1791. But they're not and they never [01:00:00] were.

Aziz Rana, a law professor at Boston College, published a book in 2024 called The Constitutional Bind that traces how Americans came to worship the Constitution in the first place. And his central finding is that this worship is itself a relatively recent invention. For most of American history, the Constitution was treated as a practical framework, not a sacred text. Populists, labor organizers, socialists, even a young Woodrow Wilson openly called it a hobble on democracy. The reverence we take for granted, the idea that the Constitution is the embodiment of American identity and the ultimate source of justice, that consolidated in the twentieth century, partly as a way to justify American empire abroad and partly as Cold War branding against Soviet totalitarianism.

The reason that matters is that originalism could only succeed in a culture that already worshipped the document. [01:01:00] Liberals built the altar. They championed the Warren Court, celebrated the civil rights amendments, treated the Constitution as a story of freedom unfolding over time. And then conservatives showed up and said: if this document is sacred, then its original meaning is the only meaning that counts. The left had no answer to that, because they'd already conceded the premise. They'd made the Constitution into a creed, and originalism was just the more disciplined version of that creed.

And this is where we should be honest about what originalism actually is versus what it claims to be. It claims to be a constraint on judicial power. The idea is that judges shouldn't impose their personal views; they should follow what the text meant when it was adopted. That sounds reasonable until you watch it in practice. When the original meaning supports the outcome conservatives want, they invoke it faithfully. When it doesn't, they get [01:02:00] creative or ignore it entirely. The Fourteenth Amendment's birthright citizenship clause is textually unambiguous, historically documented, affirmed by the Supreme Court over a century ago, and conservative justices still entertained a challenge to it. In Trump v. United States, the conservative majority invented sweeping presidential immunity from criminal prosecution, a protection that has zero basis in constitutional text or history. Justice Sotomayor's dissent made that plain. On voting rights, justices who insist on the plain meaning of words suddenly find ambiguity in the word "day" that nobody found for a hundred and fifty years.

As the Constitutional Accountability Center wrote after reviewing the 2024 term, this is a court that is transparently selective in its application of text and history. Originalism isn't a constraint. It's a costume. And it consistently answers the question of [01:03:00] who belongs, who's protected, who counts, in the narrowest way possible, because the historical record it draws from was written by and for the narrowest possible slice of the population.

Now, to be fair, originalist reasoning has occasionally produced outcomes progressives like. And the left's problem isn't just that the right has a methodology and they don't, it's what Rana identifies as the deeper trap: as long as you treat the Constitution as sacred, you're playing on a field that’s perpetually tilted toward the past.

So, as a counterpoint, maybe we should live by the idea that the living should not be governed by the dead. That a document written when wife-beating was legal and most of the population couldn't vote shouldn't be the final word on questions its authors never asked. Not because the Constitution is worthless but because treating any document as sacred means someone gets to be the priest, and the question of who gets to [01:04:00] interpret the text is always a question about power.

That brings us back to where we started. The question running through the birthright cases, the voting cases, the gun cases, every fight in front of this court, is who gets to decide who belongs. For most of American history, that question was answered by the powerful on behalf of everyone else. Originalism just gave that arrangement a scholarly vocabulary and a veneer of neutrality. The alternative is straightforward but genuinely radical: let the living decide. Let the people who are actually here, who actually have to live with the consequences, answer the question of who's protected and who counts. Not because the founders were irrelevant, but because they were human beings with human limitations who built a framework, not a gospel.

C.M. needed protection from a violent man. The Constitution's framers had nothing to say about that, because they [01:05:00] didn't consider her a full participant in the society they were building. Two hundred and thirty-five years later, a federal appeals court agreed with them. That's not fidelity to the Constitution. That's fidelity to the limitations of the men who wrote it, and calling it principle.

Note that we've begun putting my commentaries on YouTube so if you find them insightful, check out our channel and share them! Link in the show notes.

And now we'll continue to dive deeper on three topics today. First up, section A, birthright citizenship followed by Section B, election interference and section C mail-In voting I.

HOST 2: the chief argument that has been made against birthright citizenship was made, by Randy Barnett and Ellen Worman. Barnett is a law professor at Georgetown and Worman is a law professor at the University of of. Minnesota and they cited Edward Bates, who was Lincoln's Attorney General who, and they quote from Bates and they say, quote, the [01:06:00] Constitution uses the word citizen only to express the political quality of the individual in his relations to the nation, to declare these, a member of the body politic and bound to it by reciprocal obligation of allegiance on the one side, the protection of the other.

So all they cite. From what Bates writes, and they cite that as their originalist basis for opposing ci birthright citizenship. This is a ized version of what Bates wrote, that, falsies its meaning. As well as its historical context, in my forthcoming volume four. Wait for it for, you might have to wait more than a year and a half.

I've dealt with this at length in terms of dealing with the, development of the Emancipation Proclamation. Wonderful. So the Bates respon, writes this [01:07:00] as, Akhil you note in your amicus brief on November 29th, 1862. This is a very important date. It's about a month before the final Emancipation Proclamation is issued in January 1st, 1863.

So it's, and Bates is very much part of this discussion that's going on about it. So it is organically part of the development of the, of Emancipation Proclamation and Salmon Chase, who's an original abolitionist, is Secretary of the Treasury, and he asks a question of Bates, which triggers this, about a revenue cutter in New Jersey that's detained be, because it's captained by.

Quote, a colored man, 

GUEST 2: right? 

HOST 2: And is the per, and the question is, is he a citizen of the United States? And that's the question. Yep. And Bates responds that the people born in a country do constitute the nation. And as individuals are natural members of the [01:08:00] body politic. If this be a true principle, and I do not doubt it, it follows that every person born in the country is at the moment of birth.

Prima faci, a citizen, and he goes on and on like this. And he also says in his decision that birthright citizenship, which is what we call it, also belonged to quote. Bates aliens or quote, foreign born, through naturalization, making them quote like the former. So this is all established in Bates and it is inferred, it is implicit.

Emancipation Proclamation. And then it is expl explicit in the 14th Amendment. So this whole matter is as Steve Loick of Georgetown Law has written today in his newsletter, a, a real question of bad faith. As [01:09:00] well as, bad and distorted originalism, and this is the most, solid basis. For the Trump argument, and it is bogus.

GUEST 2: So we, we, we are Sears scholars. We three historians. We want people to read books, but we want people and the special ed students to just read the primary sources for yourself. Bates writes two things. He writes a, a memo to Seward. Okay, in a passport context, and he writes a response to Chase. They're online.

The internet is amazing. They're not that long. You can read them for yourself, decide whether mirror making stuff up or they're making stuff up. So just look at these sources. I want you to know one of the thing audience members, especially in the memo to Seward. He cites a very important case. It's a northern, state court case called Lynch v Clark.

That's, and it's actually, cited as very authoritative. Chancellor Kent, you [01:10:00] know, who is a very great commentator, relies on this, and Lynch v Clark. On its facts is all about a child of foreign sojourners, you know, people who are just traveling through, and it goes all the way back in certain ways to English law, common law, because in England, going all the way back to Calvin's case under, my, my Lord Coke, CO 

Oh, 

HOST 2: Edward Coke.

Yeah, 

GUEST 2: sorry. Edward Coke. The idea is. Even if you're, you know, French people traveling through the realm of, of England, we didn't quite have Britain yet. If you pop out a kid, that kid is an English subject by birth. Now subject is different than citizen and it was lifelong. And Britain, it was more futile system.

But when America comes and Republicans, all of that, they're building on. Coke and Calvin's case and Lynch v Clark comes along and says, even if your parents are foreign sojourners, you're a birthright [01:11:00] citizen. And Bates quotes all of that in talking to. So, because Seward needs to know when he is dealing with foreign countries, you know, whether they're, foreigners traveling in America, whether those kids are Americans or not.

So Bates two different things that you could read from Bates and Seward and. Salmon P. Chase, and they're all as one. And they're talking not just about children of slaves. And Dred Scott, they're talking about foreign travelers as well and their children. And the biggest point is I'm not the same as my parents.

And by the way, if I were. What happens if my mommy is one thing and my daddy is another? Okay. If it had been about your mommy and daddy, they would've had to specify which one. There are mixed marriages. Oh, they would've had to talk about foundlings. What happens if we don't know who the kid is? Right.

Oliver Twist Moses, you know, Tom Jones. And they didn't say any of that. 

The Supreme Court hears arguments on birthright citizenship. Later this week, a Trump administration executive order says the children of migrants born in the US are not [01:12:00] automatically citizens changing what was thought to be long settled law. So far, that move has been blocked by lower courts. Nearly 60 religious groups have weighed in supporting birthright citizenship.

Joining us to talk about those arguments is NPR Religion Correspondent Jason DeRose. Jason, good morning. Good morning. So let's start with the brief from the US Conference of Catholic Bishops. What did they say? Well, Michelle, the bishops make historical, legal and religious arguments to support birthright citizenship.

They quote the 14th amendment, which says, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. And they say the idea of birthright citizenship has its origins dating back to both Roman law. English common law, but what are the bishop's religious arguments?

Well, they write that birthright citizenship is consistent with Catholic church teaching. That every human has inherent dignity, and they say the church teaches that public authorities, in order to be legitimate, must affirm and [01:13:00] protect that human dignity. The bishops also say that the government should help smaller, more immediate communities, particularly the family and denying citizenship to.

Children born in the US strips parents of the right to secure their children's place in society. That increases the chance that children will become stateless, meaning they're neither citizens of the US nor their parents' home countries and Michelle. So many rights derive from people being citizens of somewhere.

But Jason, you were telling us that there's actually been some pushback against the bishops, right? Some say the bishops should not be making religious arguments to the Supreme Court. Among them is Michael Fragoso at the Ethics and Public Policy Center, which is a conservative religious think tank. Those questions of Catholic theology and Catholic philosophy do not necessarily have the same applicability in the courts.

I think there's a misconception that everything that happens in the courts is really just. Policy with legalese thrown on top of it. Fragoso points out [01:14:00] that the bishops cite the Bible and theologians such as Aquinas and Augustine, far more than legal cases or the US Constitution. In their brief, and some others have argued that what might be going on is that the bishops are writing specifically to the six Catholic justices appealing to their religious beliefs rather than legal arguments.

And other religious groups have weighed in on this case as well. What have they said? Well, a broad coalition of 57 religious organizations, Catholics, Protestants, Jews, Muslims, Hindus, and others also filed a friend of the court brief. Their argument revolves around what they call the universal value of welcoming the stranger.

They cite the Torah, the New Testament, the Quran, the Vedas, other religious texts, and they argue America has long been a haven for those seeking to practice their religion freely. Many of the people who migrated here, Michelle, during the colonial era, Catholics, Quakers. Puritans did so to escape religious oppression back in Europe, and they cite recent data from the Department of Homeland [01:15:00] Security that shows one of the top reasons people migrate to the US is that they're being religiously persecuted elsewhere.

So this brief ties the idea of birthright citizenship in the 14th Amendment to the idea of religious liberty found in the First Amendment. 

JAMELLE: You might say the case Trump v. United States really is revisiting of the Supreme Court's holding and Wong Kim Ark in 1898. Court held first after doing a comprehensive review.

Of birthright citizenship in the Anglo-American common law tradition. And after unpacking the relevant phrase of the citizenship clause, subject to the jurisdiction thereof, which the court found in this common law tradition to refer to everyone who was obligated to follow the laws, which was everyone other than the children of diplomats or diplomats, and invading soldiers for obvious reasons, the court held that, look, we have this.[01:16:00] 

Tradition. The citizenship clause of the 14th Amendment codifies to this tradition into the constitution. The drafters of that amendment were very explicit that they did not view it as limited by race or nationality or really anything. The drafters of the amendment even contemplated the prospect of the clause bestowing citizenship on immigrants, and they didn't have a problem with it.

So the court says it's very straightforward, the words. Mean and what they say. We can go through all this history. We can go through all this legislative record, which mind you, this is 1898 and so the legislative record is just 30 years prior. A bunch of the justices almost certainly knew the people involved, right?

The court says the sum total of all of this is that Wong Kim Ark is a citizen. He was born here. It's that straightforward, I should say that the chief descent. In this case argued that [01:17:00] US citizenship was based on a consensual relationship. The existing citizens had to agree that the prospective citizens could be here, and that because through legislation they had said that they did not want the Chinese in the country.

The Chinese could not be citizens. The majority responds to this by saying, basically, yeah, we know they passed this law, but the constitution supersedes law. But the other thing I would add, and this notably, is an aspect of the Trump administration's case against birthright citizenship, this consensual view of citizenship.

I would add additionally that that consensual view is essentially the view expressed by Roger Taney and Dred Scott. And one thing we know for certain that is incontrovertible is that the 14th amendment was meant, or the citizenship clause was meant to repudiate Dred Scott. And so one way to look at this is how I look at it, is your interpretation doesn't repudiate Dred Scott.

It doesn't work. It might be logically plausible. [01:18:00] You might be able to play a, a fun word game, fun language game to make the word say what you want them to mean. But if it doesn't do that, it doesn't work. Now I'm writing about all of this to be able to read it and the New York Times on a Wednesday, but the big reason I wanted to make this video is to make an observation, and the observation is this.

So Wong Kim Ark is decided in 1898. If you know your Supreme Court case history that year should sound significant or sound like a significant year, and that is because in 1896, the court decided Plessy v Ferguson, the same court, this exact same court decided Plessy v Ferguson. And Plessy, as you might know, is the case which sanctioned Jim Crow segregation.

Which turned the 14th Amendment on its hedge, the 14th Amendment has this equal protection clause. All persons shall [01:19:00] have the equal protection of the laws. And Plessy v Ferguson says, listen, equal protection of the laws does not mean the Constitution has anything to say about social hierarchies. Some people might belong to a subordinate race, and if they belong to a subordinate race, there's nothing against equal protection that prevents states from recognizing that in their law.

And besides, yes. The laws say that blacks cannot be in the same train cars as whites, but it says whites can't be in the same train, train cars as blacks, and that's equal. That's fair. Now, I think this is specious and idiotic, and plainly subversive of the meaning of the 14th amendment, which was meant to instantiate equal citizenship.

And if you're allowing states to designate subordinate races, you are by definition not in instant equal citizenship. But the Plessy court didn't agree. I bring up Plessy because it's striking right, that the same court that validated Jim Crow [01:20:00] segregation also held that the citizenship clause did not permit the country or states to create a subordinate class of people without citizenship.

There is no love lost for Chinese Americans among the members of this court. But even they couldn't massage the citizenship clause into meaning something that it simply didn't say. That everything, the history, the record, the plain meaning of the words pointed to the same answer, that if you were born on American soil, then it doesn't matter who your parents were.

You are an American unless you are the child of a diplomat, you are a child. Produced on territory captured by an invading army or until the 1920s do you belong to certain native tribes? So words they, they mean what they say.

And even the court that said Jim Crow segregation was akay. [01:21:00] Even the court that looked at state laws actively subverting the purpose of the 14th Amendment and saying, it doesn't look like anything to us. Even that court. Agreed that the words said what they mean. And so when you're looking at, this current case, at this current Supreme Court, one question you have to ask is, is this current Supreme Court less scrupulous, more partisan, less committed to the text of the Constitution than the court that affirmed Jim Crow segregation?

Unfortunately, I don't have an answer to that. I think it could go either way. But all of this is a reminder that the outcome of this case isn't really about the law. It isn't really about a question in the law. The holding in Wong Kim Ark held for the next 127 years. There was no dispute about this. And during those 127 years, it's not as if the United some paradise for [01:22:00] for immigrants.

26 years after the Supreme Court decided Wong Kim Ark. Congress passed the Johnson Reed Act of 1924, which was, or is one of the most nativist laws ever produced by an American legislature. It put harsh restrictions on immigration for basically everyone except those from Northern Europe and especially work to exclude people from Southern Europe, from Eastern Europe exclude Jewish people.

Exclude Asians, exclude Africans, certainly exclude Africans. It was just an amazingly harsh piece of legislation. And even in the midst of all of that, what was actually a nativist panic. No court disagreed with Wong Kim Ark. The 14th Amendment said what it meant. I'm sure there are people who wish it didn't, who wish they could redefine it, but it just, the words say what they mean.

This case is about politics and it's [01:23:00] about power. It's, I think about whether the justices believe that Trump is some kind of avatar of the American people, that Trump does represent some essence of the United States, and that his commands as wills is decrees, ought to be written into the Constitution as a kind of sovereign act.

If the court has that view, which will never be said explicitly, but I think it's sort of implicit in the way that it's treated Trump and the way that it's treated his claims to executive authority, then he wins on this. If the court has at least a little fidelity to the text of the Constitution, then I don't think he does.

And all of this is why it is important to engage. An active political contestation of this administration, including mass protest. Mass protests show that the public is not with Trump, that his claims to representing or embodying the public are bunk or nonsense, [01:24:00] and that the court should probably think twice before it goes and allows him to invalidate a critical piece of our constitutional heritage.

I don't think I look, but some people think I do. This is Norman Wong. He's a retired carpenter based outside of San Francisco. I'm wearing this Bruce Lee shirt. He's the great grandson of this guy Wong Kim Ark Wong. Kim. Mark, what do you think I look like in. They say, look at this amount.

And I said, okay, whatever. And this guy is a big reason why you're unequivocally a US citizen if you were born in the United States. But on April 1st, the Supreme Court takes up a case based on a Trump executive order that could fundamentally change birthright citizenship as we know it, hundreds of thousands of people are pouring into our country under birthright citizenship, and it wasn't meant for that reason.

Trump wants to redefine our 14th amendment on birthright citizenship, such that unless you have one [01:25:00] parent that is a proven US citizen or a lawful permanent resident, you are not a US citizen, even if born on US soil. So I wanted to talk to Norman about his family history because Norman's family has lived both sides of what's at stake here.

The fight to claim their constitutional right to citizenship and the reality of watching it fail. Let's start with Norman's dad's side. My father was born in China. Norman's father was born in China. His grandfather was born in China, but his great-grandfather Wong Kim Ark, was born in San Francisco to Chinese parents living in the us.

In adulthood, he went to China and upon returning to the US he was denied entry. They wouldn't let him in. They basically said, you're not a citizen because you're of Chinese descent, and we're going to apply the Chinese exclusion act to you, nor we're not gonna let you back in. And they detained him for month.

He was a, a, a cook of very limited means financially. This is Alicia Ponzi. She's a former Navy nurse turned professional sculptor of over 20 years based in San Francisco. She's making a [01:26:00] bust of Wong Kim Ark. The citizens of Chinatown got together. They hired lawyers, very well respected lawyers to fight this case for him.

His case went all the way to the Supreme Court where his lawyers argued that Wong was a citizen under the 14th Amendment, which had been ratified just a few decades earlier in 1868 in order to grant citizenship to formerly enslaved people. So the citizenship Clause says All persons born or naturalized in the United States and subject to this jurisdiction thereof are citizens of the United.

States and the state in which they reside. It's really straightforward. You know, jurisdiction means you are subject to our laws, and so the only way to sort of muddy the waters and complicate this is to suggest that jurisdiction doesn't mean jurisdiction. Those illegal aliens are not subject to the jurisdiction of the United States.

In Wong Kim Ark case, the fundamental question at stake was this. Are children born in the US to alien parents, US citizens, are [01:27:00] they subject to the jurisdiction of the United States? Or not because their parents not being citizens are subject to a foreign power. And the Supreme Court said, no, it doesn't matter that his parents were subject to China.

He was born here. He's a citizen. He stood up for his rights as American. He wouldn't let his citizenship be denied. With Wong Kim Ark, the 14th Amendment was clarified. Anyone born in the US is a US citizen with the very small. Exception of if your parents are ambassadors. His victory in the Supreme Court was really a victory for the citizens of Chinatown.

And I wanted to create, a tangible sort of reminder symbol of this story of Wong Kim Ark. For his hometown here in in San Francisco's Chinatown, and even with this historic win, he faced issues with his citizenship. Not only was he detained years later by officials accusing him of being an illegal immigrant, his son born in China, was unable to move to the US despite having [01:28:00] citizenship through his father.

He tried to come to America around 1910 and was denied. Wong Kim Ark still wanted his grandson, Norman's dad to come to the us, but his son refused to try again. So Wong Kim Ark did it, and made my father a paper son. Basically, this man who helped legally enshrined citizenship for millions of Americans in their descendants had to fabricate papers for his own grandson.

I never knew Wong Kim Ark, my father, never talked about him. I think that those paperwork discrepancies that made them quiet. Now time has passed and I have citizenship through my mother. But not everybody, may get the same immunity, so to speak. Norman's mother was also born a US citizen. Wong Kim Ark's made sure of that.

And it still wasn't enough. My mother was born here. She's Japanese American. She's [01:29:00] part of the Nisei, generation per generation. Went to the, internment camps. This was during World War II when President Franklin Roosevelt issued executive order 9066, which forcibly relocated and incarcerated about 120,000 people of Japanese descent, over half of whom were American citizens in concentration camps.

When they rounded up all the Japanese in 1942, the Japanese were forced to abandon or sell their property for nothing, and they lost it. Japanese Americans were US citizens on paper, but not in practice. That part of the family didn't talk about their experience in the camps. As much as my father didn't talk about his experience growing up in America when he was young, the government has actually gone through a shameful period of citizenship stripping in the past, and there's nothing to say it wouldn't do it again.

So the ability of millions of people to [01:30:00] live here, work here, vote here beyond juries. It would become destabilized and over time you would have a growing population ultimately reaching millions of people that constituted a permanent underclass, a, a permanent class of people without the benefits of citizenship.

And that is so not only cruel, but destabilizing. To a society, dateless children have absolutely no rights. They won't have any paperwork. They won't be able to go to schools. There'll be a a a hundred percent under class for Norman's family. This isn't an abstract legal debate, citizenship and the rights that come with it is something his family has experienced as hard won and easily violated.

I don't think Wong Kim Ark did that. So he could elevate himself. All he wanted was what was his, I'm going to think back to when I was small and I was growing up as an American, we believed that [01:31:00] you could rise that, that every everybody had a fair shake. I think that is in jeopardy more than ever.

Jane: So besides Justice Alito, what were the key takeaways of the debate on Wednesday? 

ANTHONY: Well, so one thing that stood out was it seemed that at least some of the justices were just a little shellshocked at having to even parse this question and. Yeah, same relatable content, because I too was surprised that in the year of our Lord 2026, we were literally debating whether we were going to strip citizenship from people whose parents were from another country in this nation of immigrants.

So Justice Sotomayor, for example, just seemed. A little put out that we were even talking about this and, and [01:32:00] again, the text of the 14th Amendment is so clear. The history of the 14th Amendment is so clear. This argument that the Trump administration is offering is so fringe. I mean, it was off the wall five years ago.

And through careful stewardship, they've managed to make it happen. I mean, it's a little bit like jeggings, like, you know, like we never would've thought about it five years ago, but you just keep wearing them and eventually you wear it down and. All of a sudden, you know, jeggings, they're happening. Mm-hmm.

That's what kind of happened here. They just kept pushing it and pushing it and, you know, now it's in the US Supreme Court. So that was one thing that really stood out to me. It seemed that the justices on the main were quite skeptical of the administrations. Position. I think Justice Alito was wide open and a little receptive, justice Thomas May have gone either way.

Some of his questions indicated that he might be receptive to the administration's faux originalist argument. Justice Kavanaugh was also a little hard to read, but, I, I took [01:33:00] great pleasure and I. You might have as well, when Justice Gorsuch seemed to literally struggle with the fact that John Sauer, the solicitor general, was making inane arguments and couldn't seem to understand how his argument would relate to the children of Native Americans in the United States at this moment.

Jane: Yeah, I, I was really struck by that moment because. No one on the court cares as much about how the law can impact Native Americans as Neil Gorsuch. That's his sweet spot. It, I, it always has been. 

ANTHONY: I mean, it is literally like going to the Supreme Court and arguing before Cookie Monster and being shocked when he's like, do you have a cookie?

Jane: Yes. Like, and then to have the solicitor general not know how to respond to would Native Americans be citizens? I was like, dude. Did, what are we doing 

ANTHONY: here? Sorry. Yeah, exactly. I mean, like, and like, you know, to be clear, they just don't roll into court, or at least to my knowledge, they don't just roll into court.

Maybe this administration is doing a different thing. You know, there are serious moots and practice sessions where they think about every [01:34:00] question that might come up, and so to my mind it was just incomprehensible that no one thought to ask this question that seemed obvious that he would ask. 

Jane: This term, the president's apparent strategy has been to use the Supreme Court as a free pass to do whatever he wants, but the Jos, even the ones he appointed and then screams at more recently, have shown a willingness to disagree with him sometimes.

How will this ruling either for or against the executive order impact the president's relationship with the Supreme Court, which seems he seems to think it really is a mafioso. You know, nice court, you've got shame if something happened to it, kind of agreement. 

ANTHONY: So I don't know how it'll affect his relationship with the court.

I think it's very likely that he will lose before the court, in part because the argument is so outlandish and the text and history is so obvious. But with that in mind. I think it needs to be made clear to listeners that when [01:35:00] the court rules against the president on this issue, we should not be big uping this court because.

This will not be, I think, a unanimous decision. I think there likely will be some defectors from common sense here, and that will be a travesty because this is such a straightforward, obvious question. There is precedent on the books. There are acts of Congress that are consistent with this understanding of birthright citizenship.

This is the way we have always done it, and the history bears that out, so this should be unanimous. The fact that it won't be is a travesty, and you should remember that when. All of the other media are talking about how great this court is for standing up to Donald Trump. Like this was amazing. Like they did this.

They stood up to him and they dealt him a loss. Of course, they dealt him a loss. This was the easiest question in the world. The second easiest question was tariffs, and they gave him a loss there too. And while we're talking about all. The losses that they've given him two big ones. We aren't talking about all of the wins that they've given him, the wins that have literally facilitated [01:36:00] him as he's dismantled the Department of Education as he's encroached upon Congress's prerogative to disperse funds for federal programs as he's dismantled the administrative state.

That's the stuff we should be thinking about. The winner here. Is this court, this court that gets to burnish this patina of independence that is undeserved that we will all talk about surely, but is totally undeserved given the way they have literally midwife this administration into dismantling our government.

Jane: Next up is Section B election interference.

If they kill your vote, they kill your wage, your healthcare and your future, turn on your local billionaire funded right wing media. It's ubiquitous after all, pretty much any day of the week. And you'll hear a similar rant uttered with the same grinning certainty. Ice is gonna surround the poles this November, and there's nothing you can do about it.

They're not floating it as an idea or something up for debate. They're not raising it as a question of [01:37:00] legality or even practicality. They're promising it, celebrating it, and daring those of us who believe in democracy to try to stop them. Steve Bannon says it nearly every broadcast. Hatemonger Jesse Waters applauds it on Fox News, so-called news in primetime.

Professional victim, Ben Shapiro calls it reasonable Newsmax owned by two billionaires in Shake salt and binge Ja Alani hosts commentators who treat it like a done deal. They've decided in the open and on camera with a swaggering confidence that no Republican will dare stand against them. That armed masked thugs will stand at the entrance to your neighborhood polling place this fall, just like the Klan did in our great grandparents generation in the south.

Especially if you live in a neighborhood with a lot of black and Hispanic voters, and if you or some of your neighbors are frightened enough to turn around and avoid the building or even simply stay home. Well, that's precisely the point of this awful echo of some of the [01:38:00] worst of America's history. The 150 plus billionaires who bankrolled Donald Trump's return to the White House now own the Supreme Court, the Senate, the House, and enough of our nation's media to make their threat feel like it's simply inevitable.

As I've pointed out before, they've spent decades and billions of dollars building a media and think tank infrastructure to keep working people confused, divided, and willing to believe whatever bullshit they're fed. But what these wannabe fascists don't own yet, at least not completely, is your right to vote.

And looking at the prospect of a blue tsunami. That's exactly what hard right Republicans are working to fix before November. You're damn right, we're gonna have ice around the polls come November. Bannon announced on his podcast back in February and he is been repeating it in variations ever since Fox so-called news as Jesse Waters thinks it's a splendid idea.

Ben Shapiro is fully on board. News Mag hosts, [01:39:00] Newsmax hosts have been cheerleading it for weeks. Deputy Attorney General Todd Blanche, formerly Trump's criminal attorney, stood at CPAC and asked with feigned innocence, why would anyone object to armed masked goons, menacing people by standing outside polling places?

You know, just like in the 1920s and the 1840s in the deep south. They've wrapped the whole scheme and the claim of election integrity, which is the same language every authoritarian in history has used. When he decided the wrong people were voting too easily, it was the underlying logic and rationalization for Jim Crow in previous generations.

The real target of the obscene scheme isn't some mythical army of illegal voters. As the Heritage Foundation discovered. They literally don't exist in any meaningful way. Their real target is you, particularly if you're not a straight white man, and the tool tool they're planning to use is raw, naked fear.[01:40:00] 

And it's not like they don't know exactly what they're doing. The Heritage Foundation's own voter fraud database assembled by people who have every political incentive to find a crisis has documented exactly 68 cases of non-citizen voting. Going back to the 1980s, 68 cases across four decades in a country of 330 million people having cast billions of votes.

And when Trump's own Department of Homeland Security conducted an internal review specifically to build a legal and political case for this emergency, they came back with the same answer. There is no evidence of widespread fraud. None. The crisis Republicans have been using to justify making it hard to vote since the 1960s is entirely fictional.

The emergency was cynically manufactured by right-wing operatives, including William Renquist and proclaimed in 1980 by Heritage Foundation, co-founder Paul Weyrich. But the armed thugs they wanna plant at [01:41:00] your polling place will be very, very real. And their effect on who decides to show up and vote will be very, very real too.

What they're proposing is also not incidentally, a federal felony. Title 18 of the United States Code Section 5 92. A law written in the aftermath of the Civil War by horrified legislators who'd personally watched armed and officially deputized members of the Klan threaten black voters with nooses and at gunpoint makes it a crime punishable by up to five years in prison to deploy armed federal personnel to any polling location anywhere in America, whoever being an officer of the Army or Navy or other person in the civil, military, or naval service of the United States.

Orders, brings, keeps, or has under his authority or control any troops or armed member at any place where a general or special election is held. Unless such force is necessary to repel armed enemies of the United States shall be fined under this title or [01:42:00] imprisoned, not more than five years or both. And disqualified from holding any Office of honor, profit, or trust under the United States.

That law has been on the books for more than a century because the people who wrote it understood that the moment we let the government sanction terror of voting locations, we no longer have a real democracy, which of course is exactly the point of these right wing fascists. The cruelty of the scheme becomes even clearer when we consider how closely what ICE has been doing resembles previous generation's experience of the Klan.

A 2025 Supreme Court Shadow Docket ruling written by Pillsbury Doughboy Imitator, Brett Kavanaugh in Nome versus Vasquez. Perdomo says ICE can profile Americans based on how dark their skin is, where they work, or how they talk. The so-called Kavanaugh stops and what's followed has been a wave of well-documented harassment of brown skinned US citizens.

A 20-year-old American citizen named Moshe Khali [01:43:00] Hussein, for example, was stopped by masked ice agents from walking. While walking from work to lunch in Minneapolis, shackled and violently dragged off to a federal building, as he repeatedly protested that he was a US citizen and carried in his pocket, the proof of it before being threatened, humiliated, and ultimately released.

He repeated, I'm a citizen. I'm a citizen the entire time, but the agents hungry for their bonuses and high on functional vice president Stephen Miller's racism. Didn't care. A ProPublica investigation found more than 170 cases of US citizens detained at raids in protests, and that's probably just the tip of a very large, very deep iceberg.

According to the Cato Institute, 73% of people booked into ice detention since October 20, 25, had no criminal convictions whatsoever. You don't need a scientific study to know what happens to Latino voter turnout when an ice thug is the first thing you see when you walk up to [01:44:00] cast your ballot. The Brookings Institution found around 75% of Latinos across the country can speak Spanish well enough to be flagged under ICE's Kavanaugh Stop profiling criteria.

Making enormous numbers of Latino citizens vulnerable to harassment and detention based on nothing more than how they sound. Not to mention that Brett Kavanaugh's dicta allows for harassment and arrest based on the color of their skin and they know it. That suppression of the vote isn't an in incidental side effect of this geo pan p plan.

It is the plan.

KATE: Arizona voters notched sweeping back to back victories. Friday after the state Supreme Court declined to hear three separate challenges backed by Republicans and right wing groups. In three orders issued Friday, the conservative leaning court refused to take up appeals. In cases that sought to restrict how mail-in ballots are verified.

Allow counties [01:45:00] to hand count ballots and weaken rules governing early voting and election certification. One case was a challenge from the Arizona Free Enterprise Club targeting how the state verifies signatures on mail-in ballots. Under Arizona law, election officials can compare the signature on a ballot to ones already on file to confirm identity.

The plaintiffs argued officials should only be allowed to compare signatures to a voter's original registration record. A second case brought by Mojave County supervisor Ron Gould, attempted to upend how ballots are counted altogether. Gould argued counties should be allowed to abandon voting machines and conduct full hand counts of ballots.

A process election experts widely agree is slower, less accurate, and more vulnerable to human error. The third case was a sweeping challenge led by Arizona Senate President Warren Peterson, and former house speaker Ben Toma, targeting the [01:46:00] state's 2023 election procedures manual. Taken together the high court's rejections mark a significant victory for voting rights in a battleground state that has been at the center of repeated efforts to reshape election rules since 2020.

ANTHONY: There's a couple things to unpack here. The, the bill you're talking about is, is called the Save America Act, which is, election law reforms that Republicans want to pass. And some key provisions of this are a, a nationwide mandate, for ID in order to cast a ballot and also.

A requirement that whenever you register to vote in this country, you have to prove your citizenship either with a birth certificate or a passport. It bans voting by mail, except in certain specific cases like military, overseas or illness, it also. Prevents you from registering outside of a a, a voting office, a a government office.

So, you know, you, you see these [01:47:00] voter registration drives on college campuses where people, register voters who are walking between classes or at malls. All of that would end. 

JUSTIN: That's very clear. That's what, Trump wants. Why is it that the Democrats feel so strongly about this? Why is it that they can't come to some kind of a deal?

What is it that they feel is so important about the act, not par? 

ANTHONY: I, I think they view it as, a bar to people voting. I mean, you would have to get a driver's license, you have to pay for that or get a passport, a hundred and something dollars to get a passport just to register to vote. There's also concerns that, people whose names do not match up with their birth certificate, could have problems.

Registering women who, changed their names when they got married would have to take an extra step, essentially to, to prove that they are who. Their birth certificate says they are. And, and this is all just adding on to kind of the onerous, owner's kind of, requirements to, to, to be able [01:48:00] to exercise a constitutional right, which is to vote now, now to get back, the reason why they're blocking this Homeland Security bill in the first place is that they want greater regulation, greater oversight.

Of immigration enforcement officials, they want things like a mandate that if a immigration official, comes to, to try to interview someone or to detain someone, they have to have a warrant to enter the premises. They want body cameras for, immigration enforcement officials. They don't want them to be able to wear masks.

They want 'em to have IDs on them. That's why they block this Homeland Security bill. What Donald Trump has said is that. Well just to pass the bill now, not only do you have to vote for funding ice, you also have to vote for this, election regulation law. Well, and in addition, he's tacking on, a requirement that there's a ban on, transgender surgery for children, and a ban on any transgender athletes, in college sports.

So he is kind of bundling a bunch of things in [01:49:00] here into this one bill, and demanding that. No negotiation. Democrats have to sign off on this, or the Republicans have to find a way to pass it without any kind of a democratic support, which would require playing with the parliamentary procedures in the Senate in a way that hasn't happened in decades.

clip: I'm suggesting strongly to the Republican party, don't make any deal on anything.

The most important thing we can have is what's called the Save America Act. Don't make any deal on anything unless you include voter id and you have to be a citizen to vote. You have to show citizenship to vote. Very easy to do. The Democrats are fully to blame with the struggle of the great. American public is going through at the airports.

They're going through a big struggle right now, and we just put ice in charge and they're helping TSA, the agents and, they're working together so far very well. 

JUSTIN: One of the things Democrats say, isn't it, is that, that it'll affect minorities [01:50:00] in particular and and disenfranchise whole groups of people, to which the White House would say, really? Why do you assume that some people are less capable of getting access to government?

Id. Than others. I mean, it's available to everyone who is a US citizen. And it's fair to say, isn't it, that, I mean, there's a division, isn't there? I'm not sure this act is particularly well supported when, in, when people are specifically asked about the act, but the idea that people show some sort of ID to vote actually is quite popular, isn't it?

ANTHONY: Yeah. If you, if you see polling, I mean polls add, you know, 60, 70, 80% public approval, because as you mentioned. Americans, most Americans need their ID to do a lot of thing. I'm gonna have to show an ID in order to get on a plane, later today. So it's not that that big a deal actually in a lot of states do require identification, to cast a ballot Virginia by.

My home state right now, I have to show an ID to cast a ballot. Now, mind you, there are ways of getting around that. If you don't have an [01:51:00] id, you have to sign an affidavit, that sort of thing. But there are cases on the margins where people just don't have IDs. People don't have a driver's license.

People don't have a passport. Only like 50% of Americans have passports right now. I mean, I can think of my, my 88-year-old mother, she doesn't. Drive anymore. Her pa her driver's license is expired, her passport is expired. Someone would have to help her get to, A-A-D-M-V, a Department of Motor Vehicles to get a new picture ID made in order to be able to, to comply with this law.

And there are other people, the elderly, the infirm, the people who, just don't drive 'cause they don't have a car. I mean, that's, those are all obstacles, right? To, to being able to exercise. What is a fundamental. Constitutional right. And I think that's the democratic criticism here, is that it shouldn't be harder for some Americans to cast a ballot than it is for others.

And as soon as you start putting these requirements up, it gets more and more so that certain people, [01:52:00] are pushed to the margins and are made less likely to be able to, to cast their ballots. 

JUSTIN: It's a really interesting one, isn't it, Anthony? It just seems to me that it could be, that it puts out of business in the ability to vote some elderly people who might well be minded to vote Republican.

It also has an impact on people who just can't be bothered, actually. Just think, oh, what the heck? And who do those people tend to vote for in, in recent, recent years, it tended to vote for Donald Trump. It's he's, he's got people out of their shacks and into the voting. Booths in a way that people never managed to do before.

And I just wonder, obviously there are minority groups that there Democrats have traditionally depended on, particularly black voters who they feel will be impacted. And that then goes to the heart of, of that question the, that actually the Democrats think it probably will be their people. But I think, I think it's entirely right actually to suggest, Anthony, you can't know, can you, [01:53:00] how this will play out?

ANTHONY: We have seen Donald Trump's done really well with low propensity voters, in recent elections. So, and this could adversely affect Republicans as well as Democrats. There's no guarantee that this will red redo to the benefit of, of Trump unless, there, you know, is this massive group of undocumented illegal aliens who.

Who have been casting ballots, which Trump may seems to, to believe. But like I said, there hasn't been real evidence. And I think the State of Utah did an audit of all of the ballots cast, recently, and found only a handful of cases. I think maybe only one or two that had. As someone who was not a US citizen voting.

So, you know, we're talking about, what is probably a relatively small number, of undocumented people who, who might be restricted by this, but a much larger number, of people who, you know, we don't know what their, their partisan affiliations are. And you know, it almost makes me think, Justin, that.

Donald Trump, you know, maybe this is cynical, but you know, doesn't care [01:54:00] so much about getting this passed, as finding a way of saying, well, there's fraud and that's why the Republicans aren't gonna do as well in November. I mean, we saw when he lost in 2020. We saw when he won in 2016, but didn't win the popular vote.

He said, he blamed voter fraud for those results. He blamed undocumented migrants voting for those results. So in theory, this could be another effort to set up, that sort of, of an explanation if the Republicans take it on the chin in November. 

Research from the Economic Policy Institute documents how the states with the most aggressive voter suppression are also the states with the lowest wages, the weakest worker, labor protections, and the highest rates of poverty. Red states with aggressive voter suppression have in fact the highest rates in the nation of spousal abuse, obesity, smoking, teen pregnancies, sexually transmitted diseases, abortion.

At least before Dobbs. Now, it would be called [01:55:00] forced births. Bankruptcies in poverty, homicide and suicide. Infant mortality, maternal mortality, forcible rape, robbery, and aggravated assault, dropouts from high school, divorce, contaminated air and water, opiate addiction and deaths, unskilled workers, parasitic infections, income and wealth inequality.

COVID deaths, unvaccinated people. Federal subsidies to states the so-called red state welfare, people on poverty, child poverty, homelessness, spousal murder, unemployment, deaths from auto accidents, people living on disability and gun deaths. That's not a coincidence. And for social scientists, it's not a mystery.

When working, people can't vote. Union rights evaporates. So corporate bosses don't have to negotiate with their workers. When working, people can't vote. The minimum wage stays frozen. Healthcare gets stripped, unions get busted, and social services are cut to pay for tax cuts. So the morbidly rich keep all the money they've made from the labor of the people at the bottom.

Research from Equitable [01:56:00] Growth has gone even farther, showing a direct causal link between higher voting rates and higher minimum wages. More generous state support programs and lower income inequality overall, which is why blue states consistently have the highest standards of living in the country.

The Voting Rights Act of 1965 by breaking down barriers that kept black workers from the polls actually reduced the black white rage wage gap. When five corrupt racist Republicans on the Supreme Court gutted key provisions of that act in, in 2013, the racial wage gap got worse. Again, the ballot box isn't just a civil civic ritual for working people.

It's the democratic lever that moves everything else. It's how you get a raise. Keep your healthcare, and make the people who write the rules answer to the people who must live under them. That's why what Bannon and his billionaire backers are doing is so nakedly corrupt. They know that if black, latino and young voters along with hourly workers and people in the [01:57:00] community's ISIS currently terrorizing all show up in November, the geo people experience an electoral blood bath when their congressional allies lose their majority.

The billionaires in Trump crime families looting gets interrupted. Two years of ruin his tariffs. Medicaid cuts tax giveaways to the morbidly rich and the demolition of every federal agency designed to protect workers rather than owners. All face a reckoning. Trump's Lick Spittles, including his Attorney General Face Prison, just like over 40 of Nixon's a and his attorney General did.

That's what they're afraid of. That's what armed masked thugs at the polling place are designed to prevent. I've spent enough time studying the history of authoritarianism, both in literature and in countries I've visited or worked in. To recognize what this moment represents every Putin, Orban and Trump style strongman who's converted a democracy into an authoritarian state started by making certain people afraid to participate.

Today's Republicans aren't even [01:58:00] original and they're obscene threats of implied violence at the polling places for almost a century. After the Civil War, this was completely normal in the previously Confederate South. And as the Klan taught previous generations of Americans, intimidation doesn't, also doesn't need to be legal to work.

The chilling effect lands the same way. Whether or not the statute books say it's permissible, which is exactly why they're planning this in open defiance of federal law and exactly why we have to name it for what it is. An attack on our constitutional right to determine our own leaders, thus our nation's future.

Call your member of Congress at 2 0 2 2 2 4 31 21 and demand that they go on record opposing any deployment of ice or other armed Trump goons to polling places. Let them know it's a federal crime that should be enforced, and any federal official, including the president who pushes it, must quote, be disqualified from Henny, from holding any office and lose their job.

Check your voter [01:59:00] registration right [email protected] and make sure nothing has changed since the last time you looked. Particularly if you live in a red state, then bring every person you know to the polls this November because the people trying to scare us away from the ballot aren't just doing it for fun.

Like previous generations in the South, they well understood the vote's power better than most of the people who take it for granted. It's well time, past time the rest of us caught up.

Jane: And finally, section C mail-in voting.

ANDREW: So right now, I think a lot of people who are listening to this are thinking. I have early voting in my state, and I can go and I can either cast my vote in person beforehand, or I can send an absentee ballot beforehand, but they also are thinking I can send an absentee ballot. And as long as it's postmarked by election day, meaning the sort of final day by which you have to have cast your vote, as long as it's postmarked [02:00:00] by, then it can be received afterwards within a certain limit.

So there's that spectrum of ways to vote. Mary, what did Mississippi do and what's the federal law on this? 

MARY: Yeah, so I'm gonna do these in reverse order. Okay. The federal law, we start with the Constitution, and the Constitution has a role for Congress in a couple of ways. Even though elections are largely administered by the states, there is the electors clause, right, which is a clause that allows for.

The states to appoint in a manner that they decide the number of electors, right? Electors. These are in presidential elections. This is what becomes the electoral ballot. The electoral college ballots, right? This was what was such a big issue in 2020 when we had alternate slates of electors. So the states can determine how they're gonna appoint electors, but Congress has the power under Article two.

Section one to determine the time of choosing the electors and the day on which they shall give their votes. Now, that day, the electoral college day is not [02:01:00] the date of the election that the rest of us vote in, but that's relevant, and I'll tell you why in a minute. There's another section of the Constitution in Article one, section four that says, the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, which sounds like a state can decide.

What day is the election? Right? But the Congress may at any time, by law, make or alter such regulations accept as to the places of choosing senators. In the early years, the states did choose different dates, but then over time, Congress decided it would exercise its authority to choose the election day.

So first came in 1845. Congress instructed that the electors of president and vice president shall be appointed in each state on the Tuesday next after the first Monday in the month of November. Right? That was the first statement of election day. 

comm: Right? 

MARY: And that is a date that the electors are appointed.

[02:02:00] It's not the day that they then meet to cast their electoral college votes. That's a different day. But that's the day that they like become the electors. And we all know that that's how it works, because. When we go vote, we're actually voting for the electors in our state, not directly for president.

It's kind of a weird fiction, but it's not a fiction. 

ANDREW: That's our system. 

MARY: And we know the popular vote does not always win the electoral college vote, 

ANDREW: right? 

MARY: All right, so that was the first time Congress fixed that date, but that date was just for the choosing of electors for president and vice president, and after the Civil War in 1872.

Congress extended the rule to the House of Representatives setting the same date, right? The first Tuesday after the first Monday in the month of November. So now we have 18 45, 18 72, 19 14. 

ANDREW: Can I just say, so one of the things you can imagine why Congress would be interested in setting some uniform dates when it comes to something like President is so that you don't have, well, Mississippi's gonna choose.

People on X date, but New [02:03:00] York's gonna choose them on Y date and New Hampshire's going to choose it on Z date and they can all see what's happening in other states. 

MARY: And it could influence the election. Right, 

ANDREW: exactly. And so it's sort of like everyone has to vote together. 

MARY: That's right. And that last dot on the map is 1914 when they extended the election day to also the elections for senators.

Right. So we have Congress three times saying, here's election day. All right. That's just the beginning of the issue though, because the question here was what does election day mean and the delta between the parties, and this is the state of Mississippi through their solicitor general. Defending their statute, right, which says if your ballots are postmarked or delivered to an election official, it could be through the mail, but they're postmarked or given to a common carrier, FedEx, whatever.

By election day, they can still be counted even if they are not received by the election officials until up to five business days after the [02:04:00] election. As we indicated at the top, there are 30 states that allow mail-in ballots. Many states have different numbers of days after the election day that they will still count the ballots so long as they were postmarked or the decision made by election day.

So it's all came down to. Does election day mean the date that you make your decision as a voter and cast that ballot, or does it mean the date that it is received by officials? That's what the entire argument was about, and it came down to, did Congress in those three statutes I mentioned 18 45, 18 72, and 1914, by setting an election day, did that mean they have preempted states?

From counting ballots received after election day, even if the choice was made by election day. 

ANDREW: And so here, that backdrop is so important for people to understand because, and I hope you agree with me. This is where I thought Justice Jackson just [02:05:00] put her finger directly on the issue, and I thought your history points to the same thing, which is.

You've got the Constitution saying, the states get to do what they want and get to decide this. Absent Congress saying you cannot, and preempting the field. So it alls a question of. We know what the states are doing. We know what here, it's a question of Mississippi, but the court asked lots of questions about other states and other state practices.

So we know there's all these different state practices. But the question is, was that somehow preempted by Congress? Did Congress say anything that this is not allowed? That they directly said, no, we are preempting this and not allowing the states. To have votes counted after the election date if even though submitted as required [02:06:00] by the state in whatever fashion it is.

By election day, but they're not received, or as many of the justices focused on the issue of voting ahead of time, and there were a lot of justices saying, well, if we're gonna go down this route of reading all this stuff into this imagined congressional statute that doesn't say anything about this issue specifically, and we're gonna start reading stuff in.

Where do we stop? This issue is really one of, let's look at the congressional statute, and if the congressional statute isn't barring what the states say, then we've got a Constitution to follow. And as everyone knows, the constitution is the top law and Congress is less than that. They can't override the Constitution.

The default is the states get to do it. Absent Congress having said no, you cannot.

BRAD: you, you argue in your peace at Slate last night, that quote, what makes all of this even more disturbing is the fact that [02:07:00] so many justices proved, eager to embrace a legal theory that is incoherent, dishonest, and rooted in paranoid hostility toward mail voting.

Alright, I'll bite. What is that legal theory and how did they embrace it? Mark? 

MARK: The legal theory is that Congress somehow prohibited states from counting these late arriving mail ballots when it sets the federal date of elections. So just to be clear. At no point has Congress ever passed a law that says that states cannot count late arriving ballots.

Actually, there are very few laws that even govern mail voting. All that Congress has ever done is said that the first Tuesday, after the first Monday is election day. And the legal theory in this case, I'm not joking, is that the words election day. Contains some kind of implicit prohibition on states counting [02:08:00] ballots that are mailed by election day that arrive shortly thereafter.

That's the plaintiff's theory. They've got nothing better than that, and yet here we are talking about arguments, which obviously went very well for them. An indication that this court is, as we've discussed, as you know, better than most. Extremely eager to interfere with free and fair elections, extremely hostile toward mail voting, and very, very, I think, sympathetic to Donald Trump's persistent claims that our voting system is rife with fraud.

BRAD: So, is is that why this notion that, that congress, I guess 150 years ago or whenever it was, declared that the first. Tuesday after the first Monday in November would be election day. That was election day. Is that why Alito was arguing? That election day as defined by Congress could only be on this one single day and everything else therefore is not election day.

So ballots may not be cast or counted, on any other day when. When, Alito [02:09:00] said, and I quote, we have lots of phrases that involve two words. The second day of which is Day, labor Day, Memorial Day, George Washington's birthday. That's three days. But, three words, but okay. Independence Day. Birthday.

That one got two mentions, I guess, and election day. He said they are all particular days. So if we start with that, if I have nothing more to look at than the phrase election day, I think this is the day in which everything is going to place. Did I read that quote correctly, mark? Is that the argument that he's actually making?

Because it has the word day in it. That's the day. Therefore, nothing else can happen on any other day. 

MARK: So look, you articulated the argument correctly. I, I think that you're leading to just by stating it all the reasons it's wrong. And if I could just get a head start there. Of course the reality is that we do not all vote on election day [02:10:00] and our ballots are not all counted on election day, and that has been the case.

For a very long time. So if the plaintiff's theory is correct, and if Alito is correct, that the day is the day that there is this 24 hour period where everything has to happen, then early voting is illegal, right? Mail voting is, is illegal, and no ballots can be counted after midnight on election day because it's the day and you know, if it's not your birthday after midnight.

It can't be election day after midnight, and there has to be a timer that goes off and every ballot that hasn't been counted just needs to be set on fire because the day is over. That's the implication of his theory, 

BRAD: right? I, I mean, it, it seems like it would, it would kill early voting and, any kind of vote by mail, because obviously that has to be done.

Prior to the election in advance. Yeah, exactly. So I mean, did, did that come up as, an argument was that an effective rebuttal to this claim? Because that claim about election day seems to be at the heart of this case. It was as [02:11:00] it was originally decided, I guess by the, the far right, fifth Circuit Court back in 2024 when they, initially blocked Mississippi's Law on this, on these grace periods.

MARK: That is correct. I mean, the problem for the plaintiffs was so obvious that it came up over and over again, and remarkably, to my mind, they didn't really have a very good argument against it. So even Chief Justice John Roberts, who I think is like a major swing vote in this case. He kept asking, well, if your theory is that it all has to happen on the day, then how could you possibly think early voting is okay?

And the answer given by Paul Clement who was attacking the Mississippi law was basically that early voting is just different. It just is. It's different because, it is, and the chief made fun of him. I mean, the chief made fun of the solicitor general too. John Sauer, who is. On behalf of the Trump administration also attacking mail voting and, and basically said, you don't have an argument.

It's completely circular. You're just [02:12:00] saying that, you know, early voting is different and, and late arriving ballots are, are different, but you don't have a reason why. And I think Justice Amy Coney Barrett was, to her credit, concerned about this as well. I mean, if you take these theory seriously, it means that the way that we have conducted elections in this country.

For, for a very long time. I mean, actually going back to the Civil War Yeah. Which we can talk about, has been unlawful and nobody knew it until now. Congress secretly smuggled in this ban on early voting, and nobody figured it out until the geniuses on the Fifth Circuit did in 2024. 

BRAD: It, it's just, I mean, I guess by, by that notion, Donald Trump, I think on Monday, violated the law by, voting by mail.

Correct. In, in Florida. So, somebody really needs to, to round him up for voter fraud. I guess this argument mark, about the, the threat of. Appearance of fraud. Concern about that, that being just as dangerous as actual fraud, as [02:13:00] absurd as that may sound, which was another argument that made its return in these, in these arguments.

This has actually been around for a long time this, from this right wing court, specifically to argue that though there was. Virtually zero evidence of polling place impersonation fraud. The fact that people feared that it might happen, believed that it could, believed that it did, because folks on Fox News and on the right claim that it does that.

That alone, that fear. Of it actually happening was good enough to allow states to mandate strict voter id, restrictions at the polling place, even though millions of Americans might lose their vote. That's an old argument, but it came back. It's an oldie but goodie mark it, it worked before. So why not now?

Is that a sort of, how they treaded this thing out again? 

MARK: That's it. And, and of course, you know, it cannot be said enough. There's no evidence of, of voter fraud on any mass scale in this country. [02:14:00] It, it, it's random incidents that are often actually committed by Republicans. This is not, to the extent it occurs, which is like once in a blue moon.

Mm-hmm. Something that Democrats seem to be doing to try to swing elections. But there. Is a circular logic here as well, which is that Republican politicians can claim there's voter fraud. There isn't, they can't prove it. But then they use the fears that they have whipped up about this phantom fraud, right?

To justify cracking down on the franchise and to justify new measures to suppress the vote. And that's what Justice Alito was doing. That's what Justice Kavanaugh was doing. They were saying, don't you think we should take into account fears of, of voter fraud, the appearance of fraud. Use it to justify striking down Mississippi's law.

And I, I guess I just wanna take a step back and say that this is not, and barely pretends to be a legal argument, right? Because this is not like a, a legislative body deciding whether it's [02:15:00] wise. For states to count ballots that are postmarked on election day, but arrive shortly thereafter, 30 states and the District of Columbia have in some way, shape, or form enacted these laws.

Okay? It's not the Supreme Court's job to decide whether there're wise. It's the Supreme Court's job to decide whether Congress. Quietly prohibited these laws. When it used the words election day and day of the election in federal statutes enacted in the 19th century before there was widespread mail voting or early voting.

And the answer of course, obviously is no. So what are these questions about voter fraud doing in these oral arguments? I, I mean, all I can really say is that it seems like these guys have forgotten what their jobs are. And they've been watching too much Fox News. Mm-hmm. And they are trying to impose Donald Trump's anti-bot agenda on the country in the guise of judicial review.

I mean, look, there is a bill, the Republican support, it's part of this sort of save act suite of bills. Mm-hmm. [02:16:00] That would prohibit states from counting these later arriving ballots. But it hasn't passed and it's probably not going to pass because it can't survive the filibuster. And this case is just an effort to smuggle that in to law.

Make Donald Trump very, very, very happy and disproportionately disenfranchised democratic voters because we know Democrats at this stage are more likely to vote by mail than Republicans. So that is what's going on here. There's very little law 

KATE: if the danger, as we've been talking about, of this case is at least in part that it reveals and kind of might further baseless narratives around early voting and fraud. It also clearly connects to broader themes regarding the upcoming midterm election. And as I mentioned, upfront protect democracy just came out with a pretty alarming, but I think really important report on that.

So can you just talk about that for a little bit, Ian? 

IAN: Yeah. I mean, look, we're living in an era, a moment where authoritarianism is on the rise around the world. Obviously we're experiencing it here at home. And what you see is a very clear pattern across the world where [02:17:00] autocrats do seven things everywhere to dismantle democracies, right?

They politicize independent institutions, they spread disinformation. They aggrandized power in the hands of the executive. They quashed assent, they scapegoat vulnerable populations. They stoke violence. And then of course they corrupt elections, right? They hold elections, but they tilt the playing fields that elections are no longer free and fair.

And they basically guarantee a predetermined outcome of entrenching, the autocrats in power. And we've obviously seen attempts at that here in the United States, right? January 6th, 2021, where Trump refused to accept the results of an election and cited a violent insect insurrection on the capitol.

And there's a pattern here to how Trump, does this. And I think we should anticipate that that is gonna play out here. And that pattern is to invoke Sesame Street. In the letter of the D, the letter of the day. The letter of the day is D. Okay? There's three D's here. It's deceive, disrupt, and deny. And that is the president's playbook.

And you know, we saw in January. And we saw in 2020 was when the [02:18:00] president lost that election. He tried to deceive people with the big lie into thinking that the election was stolen, right? That they were, they were stealing the election in Philadelphia and Milwaukee and Detroit. He had a shut down vote counting, but he actually only persuaded.

About 28 to 32% of the population with his big lie immediately when he said it, according to snap polls taken at the time. Now, on the one hand, that's actually an large, really large number of people, but on the other hand it wasn't enough because in our decentralized system where there's no national election authority, a president can't steal an election on their own.

Thanks to the, you know, the founder's vision. We have thousands of elections around the country, and if the president wants to steal an election, the president needs accomplices throughout the system. The president needs secretaries of state governors, members of Congress, judges, county election clerks.

And after 2020, when the president claimed the election was stolen, tried to deceive people into thinking that, and reached out to all these accomplices, Brad Ensberg or the Republican leaders of the state assemblies in, you know, the blue wall states, the federal courts. [02:19:00] All of them, with the exception of 147 Republican members of Congress said, yeah, no, yeah, there's no, we're not gonna do that.

Mm-hmm. And so the president understands that he's gotta up that number of people who think that there's something corrupt going on in order to get accomplices willing to actually join him and try to steal the election. So he's gonna engage in deception. He is gonna try to convince people that there's something wildly un toward you.

He's gonna, you know, they're seizing ballots in Fulton County. They're gonna come out like the sixth sense and see, we see dead people on the rolls. You're gonna see Nicholas Maduro cop some plea saying Venezuelan interfered. You're gonna see all, you know, releasing of, you know, tulsi Gabbard conspiracy theories saying, you know, there's, there's dead Chinese voters on the rolls.

All this stuff that's gonna be to convince people there's something wrong. So you can enter the disrupt phase, which is where the president's gonna try to get these accomplices to change rules, to tilt the playing field. He's trying to do that. With the RNC in the case we just talked about, they're trying to do it by getting the Senate to pass the save act.

He's gonna lean on states around the country to [02:20:00] change their voter role and voting practices. That's the disrupt. And if that doesn't work and the election still turns out the way the president doesn't like, then the deny phase happens where the president is gonna basically try to deny the results. So that's the three Ds.

Deceive, disrupt, deny. We should expect that to play out over the next couple months, but there's a fourth D and this is the good news. The fourth fee is defeated it, which is what we're gonna do because we've done it before, right? The president tried this in 2020. We defeated it. There was a, a microcosm of this, as you may recall, in North Carolina in 2024 where there was a state Supreme court race.

The sitting Justice Alison Riggs won by about 725 votes. And the loser, Jefferson Griffin tried to say, yeah, that's not the result. He actually said the ru the rules that were in place that we all agreed on were actually not the right rules. We should change them. It's, I, I coached like six little league teams and three different sports of like five-year-olds and nine-year-olds, and not once as a kid on one of those teams at the end of a game that we lost [02:21:00] said.

Actually the rules were wrong. We should go back and change the rules. If we changed the rules, we would've won because even a five-year-old knows that you can't do that. Yeah. But Griffin tried to do it and we defeated it there too. So the president's gonna try to deceive, disrupt, and deny, and we all are going to defeat him.

KATE: Okay. So then I'm gonna ask you one final question. You know, there was a, obviously a note of optimism and I wanna ask you to kind of elaborate on that and take a sort of broad view for our listeners of kind of where you think we stand 14 months into this administration in the fight between democracy and, you know, call it autocracy or authoritarianism.

IAN: Yeah. I mean, look, here's the thing. In order for an autocrat to take over a democracy, particularly one as robust as the United States is, they have to consolidate power before they become unpopular, right? Because with our division of powers, the separation of powers at the federal level, the federalist separation between the states and the federal government, a president can't just take total control like that because the founders.

Built a system that was designed to check exactly that form of tyranny. So the president needs to co-opt all of these other branches, [02:22:00] all of these other actors as part of his project. And you know, the president had a real opportunity to do that after the 2024 election, even though he won a very, very narrow victory.

You could feel it in the air in early 2025, that the general direction was, oh my God, this guy is all powerful. The country's going that direction. And you saw all these institutions basically just hand him the keys and say, we will do whatever you want. And he had this opportunity to consolidate power and I think he fundamentally squandered it.

He basically. Interpreted a victory that was not even a majority of voters in 2024, he, he would've lost the election, but for 230 votes in three states. And he acted as if he had a 60% majority mandate. And he just did things that were wildly unpopular. And he actually became unpopular before he had finished consolidating power.

And as we said earlier, according to that Wild Fox News poll, he's wildly unpopular. And so you are now starting to see the institutions say, yeah, we're not gonna go along with it. I mean, the Senate right now is refusing [02:23:00] his demand to pass the Save Act. At the time that we're recording this, the Senate has basically funded all of DHS except for ICE and CBP.

They're just no long. The institutions are no longer doing on mass what the president wants. He has become unpopular before he consolidated power. And that is the death. No, I think for NCA trying to take over. So fundamentally, I think. We, and by we, I mean the forces of democracy and freedom. We are gonna win.

We are gonna win this battle for democracy in this country. I fundamentally believe that we're gonna win it because we're right. We're gonna win it because the facts and law on our side, we're gonna win it because freedom is a natural human condition that people want and we're gonna win it because the autocrat here is pretty incompetent and made the mistake of becoming unpopular before he consolidated power.

But you can track this. You're gonna wanna know if this is true tomorrow we just put something up on our Protect Democracy website, the Authoritarian Action Watch, which is like kind of the weather app. If you wake up in the morning, you're like, what's the weather today? It's a new, it's a new thing on the site where you can check like, what's the [02:24:00] weather today in terms of weather, democracy, or authoritarianism is ascendant.

So go on the protect democracy.org website and book market. And if you wanna get even nerdier about it, and I know all of our strict scrutiny listeners wanna do that, you can subscribe to our newsletter if you can keep it.org, where our team is updating you on this battle between democracy and authoritarianism on a regular basis.

And you can hold me to my word. We're gonna win. 

DAHLIA: That's, gonna put an enormous amount of weight on this question that I wanna return to, which is, that means it cannot be a close election.

If this is a close election, it gets a lot harder and I want you to. Kind of go back to your executive override report, which as you noted it, it, it focuses a lot on a very simple playbook and the threats to the election. But it ends on this note that I think is really important for listeners to hear, which is, what should we be doing to make sure that this election, isn't, a squeaker and what [02:25:00] should we be doing?

Not starting the first week of November, 2026, but starting like. Let's say today. 

ANTHONY: Well, it, you know, and the reports got good advice for sort of every different kind of sector of society, right? So on the deceive front, we need everyone with a platform and voice to call out these lies, right? Our elections fundamentally have been remarkably resilient over a long period of time.

They've never been perfect. We have had all sorts of horribly corrupt problems in this country. Voter suppression, Jim Crow. We, we've lived through electoral autocracy in the United States, the American South, for much of our history. And yet in recent years, elections have been remarkably resilient. And every, you know, really independent, honest assessment of whether there are wild amounts of people voting illegal in this country is found That's not true.

I mean, look at Utah. Conservative state of Utah just looked at whether non-citizens were voting in their election. Found, you know, I think single digits. It might have been Montana recently had a report. I think it [02:26:00] found 23 people who, 23 Now, Montana's a small state, but it's not that small. Right. 23 would, these elections are not being changed by people unlawfully voting.

And by the way. When you'd find those, like eight people in Utah, or 23 people in Montana, it turns out oftentimes it was like, oh, it was like the chief of staff to the president. It was like Mark Meadows. It was like, you know, so you need to talk about that. You gotta get that out there. Two, for those people who are gonna come under pressure to disrupt the election, which are gonna be the accomplices out there, oftentimes they're gonna be Republican electeds in states, secretaries of state, legislative leaders, county clerks.

What we've found over the last couple of years is that there's just strength in bringing people together, collectivity, right? That the more people feel like they're not alone, the easier it is to stand up to this pressure. And so for communities around the country, get the backs of your local clerks.

They're doing incredible work. They're being incredibly brave. Now they're facing a lot of threats. Show them support, show them they're not alone. [02:27:00] Go volunteer to work with them or just send them a letter or a note saying thank you. That actually makes a huge difference in people's willingness to stand up and do the right thing because they feel like the people have got their backs.

But yes, power, the polls.org. You can volunteer to be a poll worker. What a wonderful way to serve your country in this moment of crisis, to go and help people vote. And then when it comes to the deny phase, this is where, at the end of the day, if there is, to your point, Dahlia, a close election. If the elections a blowout, the president may still try to deny the results.

He won't succeed. If the election is close, then the president will try to deny the results, and then it's a little bit dicier. And in that moment, yes, there will be legal cases, but now here's a place where the courts won't save us. This will come down to where all the political power and leverage is when the Congress is seated on January 3rd, 2027.

And the historical analogy I think of for that moment is the haze, Tilden. Election of the late 19th century. This [02:28:00] was a presidential election, which three southern states living under reconstruction Union Army down there trying to enforce reconstruction, make it unclear who the electoral college ballots for those states has been cast in favor of the Republican Rutherford Hayes, the Democrat, Sam Tilden.

And there's a real question as to who's won the election, and it ultimately is a brokered solution based on where the leverage lies. And it's a very tragic outcome as you know where the deal is. The Republicans get their president from the North Rutherford Hayes in exchange for withdrawing the union troops ending reconstruction and subjecting the south of Jim Crow for the next half century.

And that was a brokered solution based on who held political leverage at the time. And so if we end up in a situation where it's a close election, the president tries to deny it. There's a fight over what should happen, it's gonna be who holds the leverage. And here, I think. Our North star, our touchstone, our model is what the people of Minnesota recently did because the people of Minnesota basically came out in a moment in [02:29:00] which the president was trying to assert authoritarian control and said, no, we will not accept this.

We will not allow this to happen. It started with the bravery of people like Alex Pretty and Renee Goode, who modeled what it looks like to stare down fear in the face and to not be afraid and made the incredible sacrifice for this country to show other people that if they could do it, other people could come out and get their backs.

And the people of of Minnesota did that. So amazingly, 70,000 people coming out in negative 14 degree weather, hundreds and thousands of families taking their kids outta school businesses closing down the entire state, shut down and said, we will not allow this to proceed. And they forced the president to withdraw and to retreat.

And that is the model we need to follow. And so this is the last piece that I think we should leave everybody with, which is the greatest protection of the elections. Number one, participate. Overwhelming participation. And number two, people need to be organizing now to be able to insist [02:30:00] that the actual truthful, lawful real results are honored.

People need to come out and begin modeling now what it looks like to show up for our democracy. And Dahlia, as we sit here, people are going out today across the country in the millions for the no Kings marches. If you're not out there, get out there. If you're out there, thank you for being out there. This is the practice run because if it comes down to an autocrat trying to overturn the election, it is ultimately gonna be the final backstop, the first three words of the Constitution.

We, the people who say no, just like the people of Minnesota did not on our watch. And if that political leverage is there, then the Congress will have no choice but to sit the actual lawful and rightful winners. And, and you know, I think it's kind of fitting and poetic that for all the protections in the constitution, for all the checks and balances and all the division of Powers and Federalist system, and it is indeed quite brilliant and it really has worked to this point as a check against tyranny, which was fundamentally what the founders were trying to do.

At the [02:31:00] end of all of that, the final backstop protecting democracy is exactly where they started. It's we, the people, it's ultimately up to us and we have been able to do it for 250 years. We've overcome so many imperfections, challenges, tragedies, corruptions to get here. And I think, you know, as we approach the 250th, I'm actually, to get back to the beginning, I am quite hopeful that we will see to the next two 50 that we are being tested.

We will come through this challenge. We will be stronger for it. Every crisis is an opportunity. On the other side of this, as we've talked about before, I think is actually something even better. We've had, you know, political historians talk about having had three foundings in this country, right? That we had our first founding that the Revolution produced, the Union and the Constitution.

We had our second founding after the Civil War, the three reconstruction amendments to the Constitution. We really had our third founding after the Great Depression, two World Wars. We had the new Deal, we had the civil rights movement. But each of those [02:32:00] foundings came through a crucible of crisis and conflict before them.

And I think this is following that pattern. We're going through an incredible crisis now. And on the other side is the fourth founding where we build a democracy that is more inclusive, it is more resilient, it is more equitable, it is more perfect, for the next 250 years we're being tested. But I, I fundamentally believe that we will pass this test.

And so to those who are out there on the streets today, you're modeling that. Thank you and look forward to seeing everybody celebrating the two 50th and delivering this country into the next great era of our democracy. 

JAY - HOST, BEST OF THE LEFT: That's going to be it for today.

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Thanks to everyone for listening, thanks to Deon and Erin for their production work for the show and co-starring in SOLVED!, thanks to Amanda for all of her work behind the scenes including her co-starring on SOLVED!, thanks to our editors and and thanks to those who already support the show by becoming a member or purchasing gift memberships

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