Episode 10 | Election Day, Election Integrity

Our hosts, law professor Ilan Wurman and Kathryn Johnson, devote their episode to election integrity and the meaning of "election day." Does a federal "election day" preempt state laws providing that ballots can still be received days after the election? Is someone "elected" once the final selection is made by the voters, or when those selections are transmitted to election officials? Or perhaps it's only when the count is done? Our hosts penetrate this thicket of possibilities, and discuss the surprising history of the uniform election day -- voter fraud! Our hosts explore the "great frauds" that were committed in the Election of 1840, how Congress responded, and how many election laws exist to prevent opportunities for fraud. Our hosts also break down some recent legal immigration news -- including what it means to "arrive in" the United States for purposes of seeking asylum -- before tying the topics together with their guest, Mateo Forero from the Federation for American Immigration Reform, who talks about FAIR's blockbuster report on the connection between illegal immigration policies and proven instances of voter fraud. 

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Transcript

SPEAKER_02 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck?

SPEAKER_01 0:05

Well, first the Supreme Court heard oral arguments on what election day really means and how long that day can last. Then, some major developments in immigration law. According to the Eighth Circuit, illegal immigrants must be detained. Finally, we'll tie these topics together with a guest from FAIR who's written a report on how anti-border states are harming election integrity.

SPEAKER_02 0:23

Let's dive in. I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.

SPEAKER_01 0:41

And I'm Catherine Johnson from Center of the American Experiment.

SPEAKER_02 0:44

First, we just wanted to thank everybody again for following us on Substack and on YouTube. Please like, rate us, send us some comments. The early support is always so tremendous and appreciated. So thank you all for uh having done that. Again, if you're not following us on Substack, that's a way for us to get in touch with you directly. It's just rationallybased.substack.com. You can also communicate with us that way, and we can answer your questions. And speaking of questions, we do have a question from a listener.

SPEAKER_01 1:10

Yes, we do. We have a question from a listener.

SPEAKER_02 1:15

Not everybody was convinced by my birthright citizenship deep dive. And I guess this uh reader or listener was was not convinced. But the but but he or she has some really good questions. Uh and so we are going to answer two of them.

SPEAKER_01 1:28

Aaron Powell Yeah. Let's start by so they they started by saying your point about Congress's naturalization power is well taken. But what was your point again?

SPEAKER_02 1:36

Catherine, it was just last week. Okay, so the point about the naturalization power. So so a lot of the arguments that people make on the other side of the birthright citizenship issue is that think of all the chaos that will ensue if the Trump administration is right, especially if it's retroactive. What do you do if you can't prove your citizenship? Do you have to have your paperwork at the hospital? What about people who are here for generations perhaps? And I just made the sensible point that Congress has the power to naturalize. Congress has the power to make legislative solutions to a lot of these problems. So I'm not moved by the practical problems that the other side has raised. Okay, so the reader was convinced, I guess, about the naturalization PowerPoint, but not entirely. Trevor Burrus, Jr.

SPEAKER_01 2:15

Okay. So Congress could do all kinds of things if they weren't um on vacation in Disney World right now, if you're following that saga.

SPEAKER_02 2:20

Are they really?

SPEAKER_01 2:21

Um one in particular, Lindsey Graham, is at Disney World.

SPEAKER_00 2:24

Oh.

SPEAKER_01 2:25

And no one's totally clear on why. Well well, they're on break because um they did such good work funding our government.

SPEAKER_02 2:30

Aaron Powell Have they enacted the Save America Act yet?

SPEAKER_01 2:32

No, no, and they're on just a just a nice break. So he went to Disney World.

SPEAKER_02 2:35

Okay, well Lindsey Graham isn't gonna be deploying the natural any type shoot. But anyway, what's the question? What's the point of the thing?

SPEAKER_01 2:41

However, on the other side of the ledger, aren't there reliance interests for millions of people and didn't originalists like Scalia take reliance into account when deciding cases like this? If retroactivity is on the table, doesn't that basically mean the court should adopt the conventional view since it's at least plausible and non-demonstrably erroneous reading of the citizenship clause, even if your view is plausible as well, in order to preserve that reliance rather than just punting it to an ineffectual Congress?

SPEAKER_02 3:06

Okay. Point we'll take it on the ineffectual Congress. We I think agree uh on that point. So this is this is a really fair point. Um what do you do when reliance interests have arisen or emerged over a particular issue? Now this usually comes into play when it comes to the question of whether the Supreme Court will overturn a prior precedent. And so suppose the justices think a prior precedent is wrong. Well, before they overturn it, they'll consider any reliance interests that have arisen around that prior precedent. And that's, you know, that's people can disagree over exactly when judges should overturn precedent, but that at least right now is what the court does. But this is a little bit different because there isn't actually a prior precedent. There's the Won Kemark case, but as we argued on our deep dive, the Wan Kim Arc case involved lawful domiciled parents. It doesn't actually address this question. So what this listener actually is suggesting is even though the Supreme Court's decision isn't exactly on point, and even and the Supreme Court today wouldn't have to reverse that decision, since the 1930s, 40s, and 50s, people have misinterpreted the Supreme Court's decision. And so what do you do when there are reliance interests on a misinterpretation of the Supreme Court's decision or where a misinterpretation of the 14th Amendment has emerged from other sources? And it's a really good question, but I just don't think the courts care about it outside the context of overturning their own precedent. I mean, we have cases from the very beginning of the Republic into the modern era where the court says, you know, even a long-standing interpretation of the laws or of the constitution, by say, the executive branch, doesn't prevent the court from deciding what the law is in a case that comes before the court. Now eventually, you know, people can reasonably disagree over constitutional questions, and it would be unfair to open up a question that has been settled in some way. But the fact that, you know, people have just been under some illusion or misconception, I don't think settles a constitutional question. It needs to be debated. Congress needs to tell us what it thinks about it, the president needs to tell us what it thinks about it, the courts need to tell us what it thinks about it. And you know, if I'm right about all this, then nobody has really thought through the constitutional question and made any formal decisions about temporary visitors or unlawfully present aliens. And so it's a really good point. It would go into the precedent question of returning precedent, but I just don't think that's what we have here.

SPEAKER_01 5:21

Aaron Powell Yeah, I think maybe it's similar to what I heard on another podcast, which was they were very concerned about kind of the logistical aspect of what happens after, you know, say birthright citizenship is is redecided.

SPEAKER_02 5:32

Um what other podcasts do you listen to? I thought you only listened to our podcast.

SPEAKER_01 5:36

Thou shalt not be named. No, seriously. Oh man.

SPEAKER_02 5:39

One of our competitor pods, but but not advisory opinions. No, no, no. On the left. Trevor Burrus, Jr. And if you you know what we're talking about, listeners, if you've been around. Um there's a progressive law professor podcast uh that I guess we're not naming.

SPEAKER_01 5:50

Is that No, I don't want to give them any of our of our great publicity or airspace. Okay.

SPEAKER_02 5:56

Fair enough. So what did you hear on the podcast? Sorry.

SPEAKER_01 5:58

They were so concerned about the logistics, like uh a mom getting to a hospital, and they really made it out to be like she's giving birth and now they're asking for her papers, and it's just chaos. And I I thought that was an interesting point because it doesn't seem to me that the court should be at all concerned about it. But it seems like you're saying we should be a little concerned.

SPEAKER_02 6:16

Well that's what the Brits do, right? I mean, the UK, ironically enough, does not have birthright citizenship anymore. And so it is a little ironic that we have supposedly constitutionalized a rule based on the common law, though I've argued that the common misc conception of the common law is actually incorrect, when the UK has actually moved away from the rule that we supposedly took from them and constitutionalized it. But I'm I met a student once when I was speaking at Vanderbilt who um uh his parents were American, but then they moved to the UK. And his siblings uh had been born in the UK while his parents were not domiciled permanent residents in the UK, and they had to naturalize, right? They had to go through the naturalization process. Whereas this student was born, was the third child, and his parents were lawful permanent residents by then. And so he was a birthright citizen of the UK. So it turns out that like most countries like know things about who's in the country, and they know things about their population and whether they're citizens or visitors or what their immigration status is. So I just I guess I'm just not moved by it either. Trevor Burrus, Jr.

SPEAKER_01 7:18

To me, it's way more insane that we're just handing out birth certificates to people like crazy in the hospital, apparently. Like no mat anyone who shows up, you automatically you get a birth certificate. Isn't that like a little more crazy? I don't know.

SPEAKER_02 7:29

In other words, more than one side can play the practical consequences game, right? You want to talk about practical consequences? Well, let's let's tell you about Saipan, which we're not gonna do now because you listened on the deep dive. So if you uh didn't hear that part of the deep dive, go back to that. But okay, they had one more question.

SPEAKER_01 7:43

Okay. So uh he says here was the listener's second question. Is it really fair to characterize Amanda Frost's argument about retroactive effects as a purely consequence-based one? Part of her argument was that other provisions of the INA only.

SPEAKER_02 7:56

Which is the statute, right? The Immigration Nationality Act.

SPEAKER_01 7:59

Okay, yeah, only work if you assume the broader view of birthright citizenship. For example, the INA doesn't provide for visas of the children born to people in America who are here legally on visas other than green cards, meaning that we can read the statute to either say Congress saw those children as illegals or as birthright citizens.

SPEAKER_02 8:16

Okay, this is a super interesting question. And it goes to the statutory question, not the constitutional question. Also to the listener, your question was um shortened uh for clarity. That this question was two paragraphs, so we did shorten it a bit. And it's absolutely true as that as a general matter, you want to interpret the statutes coherently. So if the Immigration and Nationality Act for some reason presumes that the child born, even of foreigners or temporary visitors, is somehow a birthright citizen, then that is evidence that that's what the statute means, right? But I don't actually see that presumption there because the thing you you've mentioned here in the question about, well, what do what with the immigration laws don't really talk about the children born to temporary visitors, right? And so so one implication is, oh, they must be birthright citizens, but the other implicate possible implication is actually their status just follows the status of their parents, which is how international law works, for example. A child doesn't have a domicile independent of the parents' domicile. So if the parents are temporary visitors, the children are temporary visitors because the children's domicile, their place of residence, follows the parents. This is just like natural law, natural relationship of the parent over the child. So I do so if it your points are well taken, your questions were excellent, um, but I you know I I certainly stand by, I guess, everything I said in the episode on birthright. But um now we should talk about something else. Election day and election integrity, unless you anything else about birthright that I missed that you want to say.

SPEAKER_01 9:35

No, but if people have other questions, I think um where do they send them or Substack? Is that the best place?

SPEAKER_02 9:39

So so I think we will give priority to people who follow us on Substack because we want to encourage that. So again, rationally based.substack.com. We do also have an email. Uh is it rationally basedpod at gmail?

SPEAKER_01 9:51

I think so. Yes. We will drop it. We will drop it. Rationally basedpod at gmail.com.

SPEAKER_02 9:55

We'll drop it in the notes. Uh so please ask us questions. Please engage, and please ask questions and put comments on YouTube and elsewhere. Again, we will we love the engagement. So thank you.

SPEAKER_01 10:03

Unless they're about me being shrill, then you can leave those to yourself.

SPEAKER_02 10:06

Oh yeah, that guy was a moron. Uh but anyway.

SPEAKER_01 10:09

Thank you. He has a point, if I'm being honest. But in any event, we have to talk about the Supreme Court oral arguments that happened um just last week, I believe.

SPEAKER_02 10:18

What is election day?

SPEAKER_01 10:19

What is election day? So is there really election day? Um, if the election can spill over for weeks or months. We saw this during COVID in particular, where um in this specific case anyway, it was in Mississippi, they enacted a law where the ballots could be received by mail up to five days after election day, as long as they were postmarked by election day. So the question in this case is whether or not that ballot is still valid if they get it five days after election day. Or is it the case that the the ballot has to be received on election day? Um what do you think?

SPEAKER_02 10:57

Aaron Ross Powell So why is this even a lawsuit, right? Why why is this even at the Supreme Court of the United States? What do they care what election day it is?

SPEAKER_01 11:05

Aaron Powell Well, you know who argued that? Kintaji Brown.

unknown 11:08

Trevor Burrus, Jr.

SPEAKER_02 11:09

Did she? What did you say?

SPEAKER_01 11:10

Yes, she said she didn't think it should be before the court. I heard that on the other podcast. Right?

SPEAKER_02 11:15

Um You know, I listened to 80 percent of the oral argument, and I don't recall that.

SPEAKER_01 11:18

Aaron Ross Powell Uh Well, maybe I'm misremembering. We'll double check. But I think she made that argument that it shouldn't be before the Supreme Court at all. It's something that should be completely left up to the states.

SPEAKER_02 11:26

Aaron Powell Ah, okay. So that's a legitimate argument that is being made here. So um the issue is both the states and the federal government have responsibility over elections. Why is that? Uh well, Article II of the Constitution about presidential power says that Congress sets the time and place of choosing electors for president and vice president, right, for purposes of the Electoral College. And then Article I, Section 4, dealing with Congress, says actually the states have power as to the time, place, and manner of holding elections, but Congress may override those regulations if Congress wants. Except as to the place of choosing senators, by the way, which is archaic. That was when the state legislatures would appoint senators. They didn't want Congress telling the state legislatures how and when to appoint senators pursuant to that process. But anyway, so the point is the states have responsibility, but the federal government has a power to override that. So has the federal government in some way overridden or superseded Mississippi's five-day after election receipt law, right? That you could as long as it's postmarked by election day, it can be received five days after. And so this case sort of pits Republican against Republican, because the Mississippi laws is defended by the Republican Solicitor General of Mississippi, and the RNC is suing over Mississippi's law. And the RNC claims that the federal election day statutes override Mississippi's five-day receipt law. So there are statutes declaring election day to be a particular day, the you know, first Tuesday after the first Monday in November, right, every two years or four years. And the statutes say that members of Congress and the Senate must be elected on that day. And so there's a question of what does it mean to be elected on that particular day? And the presidential appointment statute says the electors must be appointed on that day. And so there's a super interesting question. But before we even get that, um do you know why there is even a single uniform National Election Day? It didn't used to be that way. There used to be election month in the 1800s. Month? Yeah. They would the Congress.

SPEAKER_01 13:35

So Congress left it up to the states to decide what day they wanted to hold elections.

SPEAKER_02 13:39

Well, what Congress said was you must do your election before this day when the electors are to meet and to select the president in the electoral college.

SPEAKER_01 13:48

Okay, no, why did they make it one?

SPEAKER_02 13:50

And so voter fraud?

SPEAKER_01 13:52

Are you serious?

SPEAKER_02 13:53

Yes. So uh as I was reading up on this case, um I found it absolutely bewildering and astonishing that our very first, I would say, national election law, making maybe it wasn't exactly the first, but one of our earliest national election laws, making a uniform national election day was because there was an election month preceding the meeting of the Electoral College. States sometimes had multiple days of voting, and they sometimes had elections on different days. And so what would happen? What would you do if you were, I don't know, a Democratic machine operative? Or a Republican, I don't know, machine operative? Are there Republican machine operatives?

SPEAKER_01 14:31

No, we were never very good at that, I feel like.

SPEAKER_02 14:32

Well, because you need, you know, big city control and so on. But there were so so what would you do?

SPEAKER_01 14:36

I don't know. Would I bounce between states maybe and go vote like in one place and then go vote somewhere else?

SPEAKER_02 14:41

You would literally bust people. Okay, not bussing. I guess you'd carriage them. Is that a carriage them? Uh and so in the election of 1840, apparently both sides were doing this. There were great frauds uh according to uh the public conception. What? Yeah, where you would vote in one state, but the other state wouldn't have their election until a week later. So you'd be imported by the political machines to go vote. Trevor Burrus, Jr.

SPEAKER_01 15:04

And it was such a problem that they decided this all has to happen on one day.

SPEAKER_02 15:08

Aaron Ross Powell Exactly. Um Wow.

SPEAKER_01 15:10

Okay, see, because I've been reliably informed, I was a political science major in college. You know, all of my classes really the professors insisted we've there's no voter fraud. We have no evidence of voter fraud. It's just a made-up thing on the right. Those other podcasts I talked about, they call it the big lie, and they say it's this recent thing that Trump came up with, and it's this new idea, voter fraud. But what I'm hearing is heck no, it goes back to the beginning of our country. Trevor Burrus, Jr.

SPEAKER_02 15:36

Yeah, so this I guess will give me an opportunity to get something off my chest that I've been thinking about since 2020, but I couldn't say because I didn't have tenure. But now that I have tenure, exciting I could state obvious truths, which is I think, you know, both I I think both sides kind of get the election fraud thing um a bit wrong, but the Democrats for sure are gaslighting us. Now, I want to be very clear, okay? I'm not saying that, oh, I can prove 2020 was stolen or there was election fraud. That's not my point. My point is fraud has always occurred. I do think it's gotten harder, largely in part because of the election laws, largely because of the election laws that were enacted as a result of the frauds that people used to commit, right? Yeah. And so just saying, oh, voter fraud doesn't happen, voter frauds were how do you know that actually, right? Even in 1845, when they enacted this statute, right, there were allegations of voter fraud. The public believed that there was great voter fraud on both sides. But it's very difficult to prove, especially back then, you know, uh where communication and technology wasn't what it was. How do you prove that you voted in some other state and then also voted in another state? The point is voter fraud can be very hard to detect and prove, but it's always occurred. And so that's why we passed laws. We passed election laws that target particular acts of voter fraud.

SPEAKER_01 16:57

So I think it's a bit obvious, too, that the amount of time you have to conduct the election allows more room for voter fraud. Like I think that's just obvious. If you make it so that it's one day you have to show up in person for the most part, on this day, it's gonna be harder to commit fraud just logistically than if you have a whole month to do it or five days, or even now there's like 21 days in some states. Aaron Ross Powell Yeah.

SPEAKER_02 17:20

I think Washington allows ballot receipt up to 21 days after. Does it it might not even have to be postmarked? So yeah, like that would be crazy, right? Because that creates opportunities for fraud. At least here in Mississippi, it had to be postmarked. But no, that's exactly right. And that's what they said about the 1845 statute making a uniform election day for presidential elections. So in the briefing, they quote a book. Um it's actually called A Book About American Politics. I should that should be the title of my book. A book about the Constitution. That's fascinating.

SPEAKER_00 17:48

Isn't yours just called like the Constitution?

SPEAKER_02 17:50

Aaron Powell Yes, my forthcoming book, The Constitution of 1789, a new introduction.

SPEAKER_00 17:54

Oh wow.

SPEAKER_02 17:55

Um you can get it pre-ordered right now on Cambridge. Um by George Simpson, they said election frauds where the parties were accused of sending gangs of voters across state line to vote for presidential electors several times created popular demand for a uniform national election day. So again, there was there was fraud, which is or at least the perception of fraud, because again, fraud can be hard to detect, though obviously it's occurred throughout history. And that's why we had election laws. Trevor Burrus, Jr.

SPEAKER_01 18:22

And it matters that there's a perception of fraud. Like it it is also incredibly serious if people just think there's a lot of fraud or the potential for fraud. And I found it interesting because um Justice Alito actually pointed this out during the oral arguments, and I wrote down his question here. He said, Do you think it's legitimate for us to take into account Congress's passage of the election day statutes for the purpose of combating fraud or the appearance of fraud? Some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election at on the end of the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election.

SPEAKER_02 19:01

What do you think?

SPEAKER_01 19:02

Yes, of course. And look, I understand that there maybe there's a a legitimate as in like it's legal for them to do this where they collect these ballots afterward and then dump them in. But that appearance of fraud certainly matters. We need people to believe in our elections. I think that's like core to democracy is people trusting the process. You know, not just that there's a process, but that people trust it. Trevor Burrus, Jr.

SPEAKER_02 19:24

And this is similar to the Save America Act argument, right? Which is look, even if for whatever reason it's true that non-citizens voting is actually rare, um, which I actually just don't know. I don't know it to be true, right? Um the the that people would their confidence in elections would be gr greatly increased if proof of citizenship were required for registration. And if you cleaned up the voter rolls, by the way, like remove dead people from the voter rolls, remove people who have registered in different states, remove people who are not citizens, and so on. How much that actually affects elections is a bit unclear because again, these things are quite hard to detect. Um but again, like the point is like why do we have registration laws? Without registration laws, it's gonna be much more easy to commit fraud, because you could pretend to be someone who you're not. If the voter rolls say, you know, have people who are dead on the voter rolls, well, it's so much easier to go in and vote and pretend to be somebody who's already registered to vote, even if they're dead, than it is to create a fake registration. Right? So again, these are all things that actually would deter fraud, whatever the extent of fraud is hard to know, which is why we have these things. And certainly they would increase confidence in the election. And so would this, whether again, it it actually I don't know how it would cut. Um would it help Republicans? Would it help Democrats? I actually don't know. But clearly it would increase confidence. And isn't that important for a republic to survive? Um, I think so. So can I say one more thing about Democrats gaslighting?

SPEAKER_01 20:52

Please do. It's your favorite topic. It's my favorite topic I seriously, this whole this topic is the is so.

SPEAKER_02 20:57

Wait, so what did they tell you in political science class when you were a political science major?

SPEAKER_01 21:00

Well, there was no evidence of fraud ever. Like they would just dismiss it outright and say, you know, sometimes there are these claims, and every once in a while, you know, someone will go to jail for voter fraud. They'll catch someone, and it's the examples they use will be like, you know, they voted twice, and it was this one person who voted twice and they caught them, and that's it. That's all we can find. The rest of these claims are completely unfounded.

SPEAKER_02 21:23

Trevor Burrus, Jr.: It's like going back to the 1600s or something. There's no proof that the Earth revolves around the sun. Well, I I mean, how do you know that? Like maybe, like, have you investigated the question? Have you done the research?

SPEAKER_01 21:34

Trevor Burrus, Jr.: And it was like this weird kind of like elitist thing where they thought, you know, uh, well, you're I'm just smart. I'm so smart, I know that there's no election fraud and these these plebes, they just they think there's this fraud and they just don't know, they don't know. And it's like, what is just common sense? Like, think about it. In Minnesota, we have these like vouching claws, you know, where you can just show up on the day of the election if you're unregistered, and your friend or your mom or whatever can say, yeah, she lives here, and then you vote immediately.

SPEAKER_02 22:00

Again, like the point isn't that this proves that there is fraud and that people who aren't ineligible are voting. What it does suggest is that there are some election systems that create the opportunity for fraud, and we shouldn't have election systems that create opportunities for fraud. And we should have election laws that deter opportunities for fraud and foreclose opportunities for fraud, whether or not fraud occurs in sufficient numbers to swing elections. It's like it's the kind of thing that it's very hard to prove, it's very hard to know. But again, here, election law, our very first Nat National Uniform Election Day, was created because of fraud. And can I just say some you know other things about this? Have you ever read Tip O'Neill's memoirs? Do you know who Tip O'Neill, um Speaker of the House, remember? Yeah, during Reagan? During Reagan. So Tip O'Neill was this Boston Democrat um who was Speaker of the House when Reagan was president, and he wrote these memoirs uh in 1980. And I remember in the 1980s, and I remember reading the memoirs and thinking, this is astonishing. Every other page, he's like, oh yeah, we stole that election. Oh yeah, the Democrats stole that election. I mean, now, okay, it's not necessarily stealing in the sense of like dead people voting, although there was some of that. Uh it wasn't stealing as in like buying votes, which there was some of that. It was the kind of thing where you bust immigrants to the polls and you hand them out a pre-field ballot.

SPEAKER_01 23:13

You know, so uh and things like that still do happen right now.

SPEAKER_02 23:17

Things like that um still happen. Another example uh in the the memoir, which was kind of fascinating, this was kind of shocking to me. Uh he was talking to a member of Congress from Illinois, and apparently Richard Daly, you know, the mayor of Chicago, controls the Democratic machine there, called him and wanted him on some other committee, and some member of Congress said, No, don't please don't make me go under that committee. I've been on this other committee for 10 years, I'm finally gonna have some power. And Tip O'Neill was like, Why why are you letting the mayor of Chicago butt bust you around? And he told Tip O'Neill, you have to understand, I'm the most popular guy in my district, I have the biggest catering company, I win elections by landslides every time. But Richard Daly controls the election committee. And it's like, what does that mean? Okay, so he's not on the election board, but we also know that that Daly controlled the election board through patronage and things. It's unmistakable, you know, that like you control the election apparatus, you can control the outcome of the election. But there are other more concrete things, like 1984, this was in Tip O'Neill's memoirs, but there was like a uh a Brooklyn grand jury found that there had been a 10-year ring, a 10-year conspiracy where people faked registrations and went from precinct to precinct to vote in democratic primaries to sway the elections. What? Wait, what year? 1984.

SPEAKER_00 24:30

Oh damn, that was not that long ago.

SPEAKER_02 24:32

No, it wasn't. It was before both of us were born, but uh which means it was not that long ago. Because, you know uh, so the point is like this point is this isn't old ancient history.

SPEAKER_00 24:43

I need to go back to my political science professors and give them this information.

SPEAKER_02 24:46

Aaron Powell So stop gaslighting us, right? And it's like, look, again, the Republicans I think had the wrong message in 2020. It's not like, oh, the election was stolen, oh, there was fraud, right? The problem is these election laws exist to deter opportunities for fraud because fraud uh is hard to detect. And it's indisputable that many states change their election laws at the last minute. They do all of these things like mail-in ballots and drop boxes that create huge opportunities for fraud, but without any experience actually running those things. And and then and anybody who says, oh, that's a you you know, that's a ridiculous concern. You have no proof of fraud, like stop it. Stop gaslighting us. It's obviously true fraud has always existed. And so what we want to do is create systems that deter opportunities for fraud, like a uniform national election day, which maybe is my signal to we should get back to law uh here. But yeah, I don't know. We could talk about elected fraud a little bit.

SPEAKER_01 25:36

No, I think it's really important. I mean, it's one of the main things that I think uh Democrats and people on the left really go after conservatives for caring about. And it's i i it's a big deal, I'm sorry. Um I also wanted to point out this one thing because you mentioned Chicago and there was a really funny moment um in the oral arguments where um Paul Clement, he was arguing for the RNC. He he said this thing that apparently there's like a post office box in Chicago that's open 24-7. Um and he joked, now I'm not going to pretend here that there's fraud in Chicago. And people laughed. Like there you could hear the the laughter in the gallery.

SPEAKER_02 26:11

Aaron Powell Some people just know. Some people just know.

SPEAKER_01 26:15

It's just a j- people know. It's so obvious, and people know it happens, and they just gaslight us.

SPEAKER_02 26:20

Trevor Burrus, Jr. Isn't it pretty well accepted uh that Richard Daly threw the election in Chicago for John F. Kennedy over Richard Nixon? I mean, I don't think it means Kennedy would have uh would necessarily that was the clincher because I think he needed Illinois and I think Texas or State, I forget.

SPEAKER_01 26:36

But like people don't really dispute the claim that it helped throw Illinois. Like it just it didn't quite help him. He didn't need it to win, I guess. So that makes it a myth they're busting.

SPEAKER_02 26:46

But so the question here, back to the law then, even though thank you, listeners, for letting me get something off my chest. And obviously something that Catherine wanted to talk about since her political science professors really did her astray, uh did her no favors uh in class. So the question here is what is election day? And I think our conclusion is certainly to the extent you can deter opportunities for fraud, if the Supreme Court rules in favor of the RNC here and all the ballots have to be received, great. That would be good for the confidence in the election to go to the Alito thing that you stated. But what's the actual qu what is the legal argument here? So what is election day? What does it mean to be election day? Now there are three possibilities, I think. Okay. Possibility one is the voters must make a final selection. That's it. But it can be received later and counted later. That I think is Mississippi. That's Mississippi's argument. Okay. Option two is the votes must be uh the voters must make a final selection and the ballots must be received by election officials. So it's selection and receipt. That's option two, that's the R and C view. Option three, though, which no one seems to take, is that the voters make a cho final selection, the ballots are received by state election officials, and they're counted. So that you know that you are elected or appointed on that day.

SPEAKER_01 28:02

Wait, I like that one. I like that.

SPEAKER_02 28:03

Okay. Yeah, you you would, but it's kind of impractical. I mean, lots of states count, right? And so even the RNC was like, no, we you know they count, the canvas is separate from the election. But why, actually? But why? Trevor Burrus, Jr.

SPEAKER_01 28:15

Yeah, because what's the difference between being um getting all of the ballots and then counting them all on the day? Like what is it that actually makes it election day? It's an interesting question.

SPEAKER_02 28:24

Yeah, well, exactly. So the problem with the RNC position, okay, is if it's uh it's it it's enough that you just um um give the ballot, you s you select you select the candidates of choice and they're they're received by election day. That's the election. Okay, but but actually, but why if you don't if you don't know who's elected until it's counted, why are you separating out the count? And if the point is, well, the the election is closed, so you have been elected, you just don't know it yet? Is that the argument? But if that's true, why does it have to be received? Why can't you say, well, it's postmarked in the mail on time, so you've been elected, and it's just gonna be five days until we figure that out. So the RNC position seems illogical. But before you accuse me of not being base and being Lily livered liberal or whatever they call them, I don't even know what that means, but I've heard that somewhere. Um anyway, the the Mississippi argument is also problematic because even Mississippi seems to recognize that some sort of deposit of the ballots is required. Because if final voter selection were sufficient, and there were lots of questions and oral argument about this, then why couldn't a voter come five days after the election with a ballot and certify a tested, notarized, witnessed, I filled this out before election day? I'm five days late turning it in, but the final selection was there. Could Mississippi allow not just postmarks, but anybody to come in or any proxy? Can you deposit it with your neighbor? Could you deposit it with yourself and just hold it and say, but I voted on the final day? So even Mississippi recognizes that some sort of receipt is recognized, uh it is necessary, but then why the post office instead of election officials? And if you allow the post office, why not your neighbor? Or why not just let people walk in themselves five days late? So both of these positions have problems. So what's the answer? What's what what's your sense? Well, I know what you would do.

SPEAKER_01 30:17

Well, is it I would in person. No, no other body. You have to show up, you have to be there, you have to physically fill in the circle. Like I that me. And then some old lady looks at it, another old lady looks at it, no computers. No, I'm just kidding.

SPEAKER_02 30:29

Well, I mean you know, there were some benefits to that system. So I so let me just propose two things on the legal argument. The first is the following, and I and I can't pretend that everybody well, the the the history point they did talk about. So the first is as Oliver Wendell Holmes said in a totally different context, a page of history is worth a volume of logic. I I love this quote because you could logically think through all these possibilities, and it's difficult, right? What is Election Day? But they did this in the Civil War, and that was near in time to when so the previous the presidential election elector day statute was 1845, the congressional was 1872. And so what do you do with Civil War battlefield voting? So the states gave created two options when it's voting by proxy, where you could fill it out as a soldier and you would give it to somebody who literally had to hand it to election officials at your polling place on election day. Or they basically um commandeered or deputized the army command to actually be election officials, so the so they would create polling places in the field. And so they would conduct the election in the field, and then all that was left is to do the count later. And so again, this shows that they thought the election had to be conducted, even if the final count could be done later, on election day. So I think the history is gonna be in favor of the RNC here. Uh and then the final thing I would say, now maybe I'm just making stuff up, but I have a thought experiment. You tell me if this is percentage. For election day to be election day, shouldn't it be theoretically possible for the count to be done on that day? In other words, I'm not saying you have to do the count on that day, like maybe there are too many ballots and it spills into the next day, but it must be theoretically possible to count all the ballots and to know who the winner is that day to announce it. But by allowing receipt of ballots five days later, it is actually literally, theoretically, practically, empirically, whatever adjective you want to choose, impossible. It is impossible to know uh who won on election day. Whereas at least if they are received by the election officials, it is theoretically possible to complete the whole count so that you know you are appointed or elected on that day. And if that's not possible based on your election system, then it isn't election day. I mean, this seems pretty good logic.

SPEAKER_01 32:42

I do think that makes sense. I also just wonder why there's not more um regulation around how long you have to count and when these things are announced. Because another thing you see is certain states take way longer. Like um oh Florida, for example, they always right away, you know, they fixed their they fixed their stuff and now they're way better. They go right away, you know what happened in Florida, great. But then something else, you know, you look at Arizona or whatever, and they're taking forever, and you think, well, it just it makes you think, you know, what's going on there? And why are there no why are there not more regulations about how long you have to count these votes? Because it doesn't seem like it seems like they can do whatever they want.

SPEAKER_02 33:17

Trevor Burrus, Jr. So there is a law in Arizona that says that the registrar cannot count ballots that come in by mail, of which there are like a millions that come in by mail before Election Day, they cannot count them until Election Day.

SPEAKER_00 33:33

Oh, interesting.

SPEAKER_02 33:34

And in a way that makes sense because you know you don't want it to get out how the ballots are trending before Election Day. But the problem is if you wait until Election Day to do the count, then all of a sudden, if all of them are by mail, well you have to signature match in Arizona, right? Arizona actually has done this for three decades, so they're actually pretty locked down how they do it. And the reason it takes so long to count is because they want to make sure every voter is valid and the signatures match, and they're not allowed to start until Election Day. So Arizona, I know that that the President Trump, and here like we're not all pro-Trump, everything he does, and says, at least I'm not, in this case. The stuff about Arizona, like, that was the wrong state to pick on. You know, I mean, Arizona's been doing this for three decades, four decades. They really knew what they were doing in terms of election administration. The problem was people doing drop boxes and vote by mail who just set up the system days before the election because of COVID, never had any experience with it. Um, but Arizona should pass a law that allows some kind of counting of these ballots before, right?

SPEAKER_01 34:31

Otherwise, maybe I'm on Arizona's side now. No, I'm not sure. I mean, I just think there should be something standard in place. But it's again this interesting question of how much uh the state can how much the federal government can do and regulate the states when it comes to voting. Because another thing we see here in Minnesota is what's happened a lot of places, which our government is refusing to give up our voter rolls. The federal government wants them, wants to make sure there's not a bunch of dead people on our voter rolls. And the state's like, no way, you know, it's that's not your your right because it's mostly up to the states, but then Congress can do time, place, and manner, right?

SPEAKER_02 35:06

Trevor Burrus, Jr.: Yeah, with the Save America Act, does it cover anything about voter rolls? I mean, I think it does, right? It requires both citizenship and but I think because the debate over whether the states can give up the voter rolls now, I don't think there is a law that'll that directs the states to do it. Right. But if Congress enacted a law, I think they would have to do it. Trevor Burrus, Jr.

SPEAKER_01 35:23

I think so, yeah.

SPEAKER_02 35:24

So but yeah, but the point about now that you're on the other side on the Arizona thing, I love, you know, like we could debate different arguments and we could be persuaded. The the solution one solution, of course, is just in-person voting. And that would solve this problem. But mail-in voting is very popular, especially in Arizona, where they've done it for three and four decades. And so there's sort of a trade-off, right? Because if you want to do mail-in voting, but you want it to be secure and you want signature matches and you want everybody to be verified, then it's going to take time to count the ballots, which is why it takes Arizona so long.

SPEAKER_01 35:51

So and I know that's a that's a complaint on the other side, too, is that you know, if if this uh case, if they decide that Mississippi is incorrect um here and they really drill down on this election day concept, does that mean mail-in ballots and pre-voting and all those kind of things are going to eventually be disqualified too, which of course people on the left love. They want as much time as possible. That's interesting.

SPEAKER_02 36:16

So early voting, if you could vote early, does that mean election day, you you're voting on not election day, and therefore the election is not on election day? It's an interesting question. I think the RNC's position, which I think is right, is well, no, just the final vote must be in on the day. And then the election is done. So the election must be completed on election day. Um and but look, I could see arguments both ways, but certainly no one's challenging the other.

SPEAKER_01 36:41

What if the person's vote would have changed, if they found out, you know, or people drop out or whatever, and they voted for someone who's now dropped out. Well, sucks to be you, you know, you can't go change your vote. So I think I don't know.

SPEAKER_02 36:52

Well, I know we have a guest soon who's joining us to talk about election integrity and immigration, but before we get there then, we did have some immigration uh developments. One was remember our habeas corpus episode.

SPEAKER_01 37:03

Habeas corpus chaos.

SPEAKER_02 37:05

One of our most highly uh watched uh video was about whether illegal aliens who evaded inspection at entry and who've lived in the country um had to be detained uh if they were caught by ice. And because you had these district judges that have been releasing them in bond under habeas proceedings, and the fifth circuit ruled that they had to be detained, right?

SPEAKER_01 37:25

But the eighth circuit, yeah. They said that they had to be detained. Trevor Burrus, Jr.

SPEAKER_02 37:27

And now the Eighth Circuit comes in and agrees with the Fifth Circuit. So remember we had the whole episode defending the Fifth Circuit, everybody was outraged, the Fifth Circuit is you know ignoring long-established executive branch practice, and this is illegal and not consistent with the statute. Well now the Eighth Circuit. Now the Fifth look, the Fifth Circuit, bless them, are far to the right of the Supreme Court.

SPEAKER_00 37:46

Oh, cool.

SPEAKER_02 37:47

Yeah, I think Seriously? They are the most based circuit. There's no question about it. But they're so based, so to speak, they're so to the right that the Supreme Court actually routinely reverses the Fifth Circuit now. But the wonderful thing about the Eighth Circuit, in which we are actually physically present here in Minnesota, is that you know they're like George W. Bush type Republican appointees. So like small c much more traditional, judicial. More palatable, perhaps. Well, to whom? Is that the last circuit? That's the question. Right. Uh so the Eighth Circuit, which is really, you know, full of these more traditional small c conservatives, um, uh ruled in favor of the Fifth Circuit. They agreed with the Fifth Circuit. Um and again, the issue here is the statute remember there are two kinds of aliens. There are those who are arriving um at the border who don't evade inspection, um, so they're caught, or they just present themselves, right, for inspection. And those who are who evade inspection and may have been in the country, they're present in the country for decades, perhaps. And the immigration, illegal immigration reform and immigrant responsibility act, remember IRERA? Yeah. IRERA, that's it. Yeah. Uh basically try to diminish the differences between these two categories by defining both to be applicants for admission.

SPEAKER_00 39:02

Yeah.

SPEAKER_02 39:02

So if you're present without um you know inspection, or if you're arriving at the border and and you're being inspected, you are declared to be an applicant for admission. And it says if you the statute says an applicant for admission who is seeking admission and is not clearly entitled to be admitted shall be detained. And so the question in this case is, okay, is in is someone seeking admi are all applicants for admission also seeking admission? Or are those seeking admission like a narrower class of applicants for admission? And so a lot of people say, well, if you've evaded inspection, if you've come illegally, you're not seeking admission. You know, and so you've evaded this requirement of mandatory detention. It benefits them. We talked about the moral hazard um on this episode. And what the Eighth Circuit basically agrees with the Fifth Circuit, it says, look, seek applicants for admission are necessarily seeking admission. And there was one point that they made that I really liked and was really the only thing I wanted to highlight, where, okay, literally they're not seeking admission, right? They're they they just snuck in.

SPEAKER_01 40:00

Yeah, they're not caring.

SPEAKER_02 40:01

So literally exactly. You put it much better. So they're they're literally not seeking admission. And the Eighth Circuit was like, look, but they're technically not applicants for admission either. They're not applying for admission, but the statute defines them as applicants. So the statute uses a term of art and describes them, therefore, as both applicants and seeking admission, and therefore they have to be detained. But as you know, none of this is actually going to happen because the district courts are ignoring the Fifth Circuit anyway, and they'll ignore the Eighth Circuit anyway on due process arguments, which we've talked a little bit about before, but that is sort of an interesting um development. Anything else I missed on the Eighth Circuit um that you wanted to talk about?

SPEAKER_01 40:37

I don't know. I don't think so. I I just I think what happens now, I guess, is my question because um yeah, people are ignoring them. Does this go to the Supreme Court still?

SPEAKER_02 40:45

Uh this will absolutely go to the Supreme Court. It's only a matter of time.

SPEAKER_01 40:48

Aaron Powell But don't they have to wait a year?

SPEAKER_02 40:50

Aaron Ross Powell Oh, well, because the session's over. Right. Doesn't it end soon? Yeah. Yeah. So the session's over. But I mean, so if this goes up to the Supreme Court, either the Fifth Circuit or the Eighth Circuit, it would be argued probably in October.

SPEAKER_01 41:00

Oh, okay. Um, it just seems like there's like so much um in Minnesota here who we had all these habeas petitions filed. It was like a huge deal.

SPEAKER_02 41:08

You know, we had a lawyer for the federal government crying about how she hated her job because I think that's and then you had contempt proceedings for our friend Dan Rosen, the United States attorney, for violating these court orders for not bringing a shoelace?

SPEAKER_01 41:20

Uh-huh. Yes, someone lost a shoelace, and so then that was I guess enough to put Dan Rosen in contempt of court in theory. But well, it just seems like a pressing issue, you know. So what does the Supreme Court do when there's a really pressing issue? Can they just kind of pick things up a little bit? Trevor Burrus, Jr.

SPEAKER_02 41:34

It can. It could do things on the emergency docket. But here it doesn't have to, because as long as the Eighth Circuit and the Fifth Circuit rulings stand, then actually you don't have to deal with these habeas proceedings. So actually the government is in a good position now because um i if the eighth circuit and fifth circuit had ruled against the government here such that they couldn't detain these individuals, then you'd have all these issues with the contempt proceedings and so on. But but we don't have that now because the government won in these cases. So there's there's no rush from their perspective, but for the fact that district court judges are still going to be ignoring uh on the due process. Why can they just ignore Because they make up some other due process argument um about the you know that they say, okay, if the statute means this, then it violates the Constitution. Um and so that will also probably go up to the Supreme Court.

SPEAKER_01 42:20

Aaron Powell Okay, there is one more bit of immigration legal news. The Supreme Court last week also heard oral argument in a case involving what it means to arrive in the United States. So the law provides that the U.S. must process asylum applications for an alien physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival. And I think that what they were really focusing on is that physically present in the United States aspect, right? Because the Obama administration started this policy of what they called metering, which Trump ended up continuing. Basically, if the detention facilities or processing facilities were full, uh the border guards would stop the migrants before they could even reach the U.S. border, so they didn't have to even deal with an application for asylum. Because the theory is if they haven't arrived in the U.S., then they can't apply for asylum. Trevor Burrus, Jr.

SPEAKER_02 43:13

Yeah, the evil Obama administration. How dare they?

SPEAKER_01 43:16

Trevor Burrus, Jr.: Well, and I think this happened because of the influx of people from Haiti under the Obama administration, where they had so many applications for asylum, and the they didn't have the means to process them all. So they were like, we have to do something about it. So they really just kept people from reaching the border. Aaron Powell Yeah.

SPEAKER_02 43:32

I think it was all over Central America, too. And so you'd have these caravans, right? I think that was also under Biden, but also some under Obama. And so even the Obama administration had to do something about this because there they couldn't process all these asylum applications given the flood of migrants that were coming at the border. And so the Obama administration, how evil of them, you know, said, you know what, we're gonna stop you a foot before you get to the US border, or a mile before you get to the U.S. border, you know, with in consultation with Mexico and so on. And so you actually haven't arrived in the United States. And we're not going to let you come to the United States for a day or two days or a week, so that we could you know at least a meter process people. And so the Trump administration was like, wait, we love this. We can just stop anybody from applying for asylum if you just stopped them before. And they aren't arriving in the United States.

SPEAKER_01 44:21

Put up a wall, maybe, and just make sure they can't get there. Trevor Burrus, Jr.

SPEAKER_02 44:24

Apparently you didn't even need a wall. You just needed to enforce the laws. Which I guess is what they started doing sort of on day one. But this is this is the theory. Now there's a argument that the case is moot because there's no more influx of migrants. So actually this is this is irrelevant. But the Trump administration is saying, well, we still want you to rule on this because we reserve the right to use it in the event that there is an influx of migrants. Trevor Burrus, Jr.

SPEAKER_01 44:47

Which I think is kind of smart. Because then maybe people who are a little uh more lax in the future presidents were a little more lax when it comes to immigration, maybe they'll they'll have this as a tool that they can use to just at least slow things down a little bit. Trevor Burrus, Jr.

SPEAKER_02 44:58

That's right. So so ruling here would give assurance to a future administration that you are allowed uh to do the thing in question. Um so like two small points about this. This is not the same as Remain in Mexico for our listeners who might be able to do that. Oh yeah.

SPEAKER_01 45:10

I was wondering that because uh we heard that a lot, I think. Oh gosh, uh uh uh during Obama's term, or was it Trump's first term?

SPEAKER_02 45:15

I think it was the Oh yeah, it's Trump's first term. Trump's first term it was, yeah. Right, because the Biden administration So so the Remain in Mexico policy. Okay. So this metering policy is before you even get to the United States, before you're even processed. The Remain in Mexico policy was you've arrived, we process you, and then where do you wait as we process your asylum?

SPEAKER_00 45:35

Okay.

SPEAKER_02 45:35

So the Trump administration said, well, we should you should remain in Mexico, and the Biden administration said, welcome to the United States.

SPEAKER_00 45:40

Yes, just go.

SPEAKER_02 45:41

And we hope you show up to your hearing. And they would never didn't. And so this is before they even get to the United States. And so the legal question here is what does it mean to arrive in the United States? It sounds obvious. You have not arrived in the United States, unless you're in the United States. But the argument on the other side is well, the law already says physically present, and so if you literally had to physically be arriving in the United States, you'd be physically present. And so then the law is redundant. But like look, there's obviously a reason that they said physically present or arriving, which is just to say there are these two categories of aliens, those who are present, who evaded inspection, who entered illegally, and the law wants to make clear that they also can apply for asylum within the year time frame. So that's all it's saying. This applies to arriving aliens who are inspected at the border, or people who invaded inspection but are caught in the interior. That's why they said it. Is it technically a bit redundant? Sure, but who cares, right? Redundancy happens for various reasons.

SPEAKER_01 46:35

Because the people who write our laws are not necessarily always the brightest.

SPEAKER_02 46:38

Okay. Well in this case, in this case, I don't think they were dumb. I just think it's because they wanted to clarify that even if you've evaded entr uh inspection and entry, you were eligible for this. So this is an easy case, this is a slam dunk. I I I think this is gonna be a ruling in favor of the Trump administration on this one. Unless they say it's moot. But I just don't know if if they're gonna go that route.

SPEAKER_01 46:58

So Well, I mean I think I think that segues perfectly into um our next topic because it's a guest who's gonna help us look at both immigration and election law and how these two things intersect. All right, so our final topic today combines these two issues, immigration and election integrity. FAIR, the Federation for American Immigration Reform, published a really awesome report about the potential for election fraud in several states that they identified. Um, to break that down for us, we have Mateo Ferrero joining us today. Mateo is the director of investigations at FAIR, and that means he spends most of his time uncovering abuses of power, waste, fraud, and corruption in the immigration system. Mateo, welcome to Rationally Based.

SPEAKER_03 47:41

Thank you, Catherine. Thank you, Professor Warman, for having me.

SPEAKER_01 47:45

Well, why don't we start by having you?

SPEAKER_02 47:47

I just wanted on the record. I love it when people call me Professor Wardman on this podcast. I know you never do, but no, you can never do that.

SPEAKER_01 47:54

No. Mateo, why don't we start by having you just tell the audience a little bit about your report and what you guys have found?

SPEAKER_03 48:01

Absolutely. So we uh wanted to take a deep dive into the constitutional obligation that states have to administer elections under the elections clause. Um that's a solemn duty uh that the constitution imposes on the states and for a long time that's been taken seriously. But um, unfortunately, there's an anti-borders agenda that has overtaken certain jurisdictions. Um, and um states driven by that agenda have implemented a variety of policies that you know are have been passed under the guise of uh you know making voting um easier, more accessible. But what in reality they're doing is they're harming election integrity by um allowing non-citizens to get on the voter rolls and then to actually cast ballots, which um is you know uh illegal under federal law. So we took a deep dive into that. Um we we wanted to focus our study particularly on kind of the worst offender states, um, and that's eight jurisdictions that have three policies that we call the dangerous trifecta. So that's um they have automatic voter registration, they also issue licenses to illegal aliens, and third, they have universal mail-in voting. What these three policies do in confluence is they create an easy pipeline for individuals who are not citizens to be able to register to vote and then actually cast ballots without any meaningful safeguards. So that's kind of the top line 30,000-foot view of our report.

SPEAKER_02 49:40

Can you can you explain to me the connection between the automatic voter registration and the driver's license? Is it that you are automatically registered to vote if you have a driver's license, or you're automatically registered to vote if you turn 18? What is the connection between illegal aliens getting driver's license and the registration process?

SPEAKER_03 49:56

Sure, yeah. So under the National Voter Registration Act, uh, also commonly known as the motor voter law, uh, state DMVs, when you go to the DMV to uh, for example, get a driver's license, um, they will uh ask you, um, you know, now that you're here and are uh performing this transaction, you know, do you want to register to vote? And so that's you know, jurisdictions that have automatic voter registration, uh, many of them will actually, when you perform that transaction, they will say, uh, we are we are now going to register you on the voter rolls unless you affirmatively opt out and tell us that, hey, I am not a citizen. Um and uh a lot of times these uh when this occurs, um, states are just relying on self-attestation. They're relying on the actual person to tell the DMV, hey, yes, I'm a citizen and I'm eligible to register, or no, I am not a citizen and should not be registered. So um it's it's a very uh flawed system that doesn't really have a lot of safeguards in place.

SPEAKER_01 51:03

But Mateo, Democrats tell us all the time that there is just no evidence that non-citizens vote in our elections. I think we know that this probably isn't true, but can you tell us about the evidence we do have that non-citizens are voting in our elections? Because you mentioned a case in your brief in Nevada recently that actually really blew my mind.

SPEAKER_03 51:26

Yeah, absolutely. In our report, we documented all the publicly reported incidents where uh where you know non-citizens are on the voter rolls and in certain cases also actually cast ballots. You're absolutely right. The Nevada uh example was crazy. Uh, you know, over 6,000 individuals who were non-citizens were found to be on the voter rolls. And then of that number, over 4,000 actually cast ballots in the state, um, which is, you know, um under federal lie, it's illegal. So uh yeah, very, very alarming case out of Nevada. And there are others. For example, um Colorado also comes to mind. The Secretary of State recently admitted that they had erroneously sent out notices to 30,000 non-citizens encouraging them to register to vote. Um and so uh, you know, that's just you know kind of uh an example of how how pervasive uh this problem is.

SPEAKER_02 52:21

So a comment and a question, but going back to the registration stuff, I find that actually super interesting because by simply reversing the inertia, that creates a big problem, especially if you're here illegally. Aren't isn't the whole argument of not including a citizenship question on the census is that people are going to be afraid to declare their citizenship one way or another if if they're here illegally? And now all of a sudden we require them to not register to vote to affirmatively tell us they're not a citizen, right? And so it's totally backward. So so the the logic of the census issue would c compel the conclusion that this encourages voter registration for those who are here illegally because they don't want to say that they're not a citizen and therefore they automatically become registered voters, which I never thought about before, but that is totally, utterly insane. On the Nevada example, just you know, the lawyer in me wants to do a cross-examination. Can you just tell us the uh the how do you know the 4,000 ballots were cast? Like what is the election process? Are the ballots kept? How do you trace it back to the individuals? Like, what was the process for figuring out that those 4,000 uh ballots uh were cast by those who were um unlawfully registered or registered, notwithstanding their uh not having U.S. citizenship?

SPEAKER_03 53:31

Sure. So in a lot of the cases that we highlighted in our report, um it was actually audits performed by the state election officials, the Secretary of State, uh, you know, using federal databases like the SAFE program, uh, which is administered through uh the Department of Homeland Security. Um this database has actually been made available widely to the states um since President Trump issued an executive order last year, uh, you know, encouraging jurisdictions to take advantage of that and cross-check their voter rolls against federal immigration um data. And so several states uh did that. Uh Texas was one prominent example. They used the SAFE uh database to suss out hundreds of um non-citizens that were on their voter rolls. Alabama did it as well. Um we detail all of that in our report. But uh, you know, similarly in in Nevada, um it was, you know, kind of this auditing process that that revealed um all these all these um non-citizens who were on the voter rolls there. So it was the state itself.

SPEAKER_01 54:33

Yeah, it's up to the state, they have to self-audit and then they can find it.

SPEAKER_02 54:38

But that's great. You know, you know, if if this was just fair doing the investigation, I'm sure there'll be lots of reasons you know, people might will want to cast doubt on it. But it's like actually it's official election sources. That that's super interesting.

SPEAKER_01 54:48

Here in Minnesota, they would never do this on it, I'm sure.

SPEAKER_02 54:51

So, you know, you're you're you're gonna have to get on the ground and actually do some, you know, uh uh investigation yourselves in Minnesota because the state is not gonna do it.

SPEAKER_03 55:00

Right, and actually, you know, that's uh that's a very good point because um actually uh the Department of Justice, the Civil Rights Division, has taken on an aggressive campaign to actually go to these states that that are you know sticking their head in the sand and refusing to perform any kind of audits and actually bringing um suit and and you know, bring enforcement actions under the Civil Rights Act of 1960 and the NVRA to actually force them to you know to clean up their voter rolls. I believe uh DOJ has filed 29 separate suits um you know along these lines over the past year. So that's that's at least encouraging that there's kind of a federal enforcement backstop to try to bring everyone into compliance.

SPEAKER_02 55:42

I have a very mischievous thought. When people discuss it. When people say it's already illegal to vote if you're not a citizen, what's actually the crime? Is it illegal to knowingly vote and uh uh as a non-citizen? Or in other words, to n to vote knowing you are not a citizen, or or voting knowing that you are not eligible to vote? Is that the crime? Because this strikes me as a big conspiracy, possibly. And I know I'm not usually conspiratorial oriented, but this whole triple, this trifecta that you mentioned strikes me as creating the conditions in which someone who's here unlawfully and who doesn't know that they're actually ineligible to vote will receive a ballot, and then 4,000 of them in Nevada will fill the ballot because they don't actually know that they're not allowed, because they were told, you know, they were given the opportunity to register. It was sent automatically to their ballot. And so you can't actually could you actually convict them of a crime if they didn't know they weren't allowed to vote?

SPEAKER_03 56:41

Yeah, I mean, I'd I I'd have to, I'd have to look uh more closely at the particular federal statute. Uh, but but I mean, this is a this is not a hypothetical. I mean, even recently in the last month, we saw the case out of Philadelphia. There was a Mauritanian foreign national who uh was indicted for having illegally voted in six separate federal elections over the course of the last, I think, 15 years. Um, and so uh, you know, there's there's clear evidence that people are are are knowingly doing this and intentionally registering and actually casting ballots. And so, yeah, that that that was an alarming case and you know, part of the reason for the deep dive that we wanted to take. Um, and so part of an important part of the investigation we launched is we submitted uh Freedom of Information Act public records requests to these eight worst offender jurisdictions, you know, asking them, okay, you've got these three policies, you know, kind of working together. What kind of safeguards do you have to make sure that you're segregating the data streams of citizens versus non-citizens who are coming to your DMV and you know, register uh you know, getting an ID and not registering to vote? And unfortunately, um, rather than get any straightforward answers or data or policies, uh, we got a lot of stonewalling. Uh, I'll give you uh the craziest example that we got was um the Colorado Secretary of State responded to our FOIA requests saying that it was going to take them 180,000 man hours to process our request. And it would cost FAIR, mind you, a 501c3 nonprofit organization,$6.2 million to process the request, which is obviously absurd.

SPEAKER_02 58:21

So uh, it's not implausible to think that Colorado election officials or Colorado state government officials are particularly lazy and inefficient and only show up to work, you know, like an hour a day. And then so you know, maybe that's not okay. I'm obviously being a little facetious, but that is somewhat crazy, isn't it?

SPEAKER_01 58:38

Well, what was it what's the ask there when you do the those FOIA requests? What are you looking for? I mean, it's not like you can just obtain the voter rolls, right? So what did you ask for in those situations?

SPEAKER_03 58:47

Correct. Yeah, we we did not ask for any kind of you know information that would be, you know, personally identifying, because obviously that would be exempt from public disclosure, but we asked for departmental policies, commute interagency communications, you know, any kind of studies that, you know, the Secretary of State or the DMV performed, you know, you know, to make sure that their processes were were compliant with federal law and with state law. Uh, you know, those those are the kinds of records that we that we asked for. And we were incredibly specific uh, you know, about the time frame and the types of records we were we were looking for. We provided search terms and everything. So, you know, we gave them everything they needed to to hand over um you know public records, which is you know a right of the public to have access to. So um you know, it's not like we go ahead.

SPEAKER_01 59:38

No, no, you you finished. I was just gonna say you you had some policy recommendations to try and solve this at the end because this does seem to be a problem where there aren't safeguards in place. They have these these policies, and then there are no checks to make sure, well, did um illegal immigrants vote or not? So what do you recommend that states do do to try and have those safeguards in place?

SPEAKER_03 59:59

Sure, yeah. So the first thing states can do, and we kind of touched on it, is right now, states can actually perform audits of their voter rolls, cross-check them against the federal safe program database, um, and you know, cleanse their voter rolls ahead of you know the next uh the midterm elections uh this November. That's something they can do right now. Uh there's several states that are also considering state-level legislation uh that that would require uh you know people who show up to register to vote or to actually vote, you know, to provide ID and to provide proof of citizenship. Kind of similar, mirroring what what Congress is trying to do uh right now in debating the Save America Act, which would be the federal mandate um equivalent of the state legislation that I just mentioned. So those are kind of the legislative fixes. We also talked about DOJ's continued push to force those audits to occur. Um and then, of course, uh there's also uh, you know, kind of outside uh groups and um candidates who who are harmed by these types of policies can't can bring suit. Um and the Supreme Court recently ruled that that candidates have standing to uh to sue over um these types of election administration rules that that end up uh harming election integrity. And so we encourage in our report um you know candidates to to take advantage of of that opportunity to kind of hold these states accountable.

SPEAKER_01 1:01:32

Well, if our listeners want to read the report in full or learn more about your work at FAIR, where should they go?

SPEAKER_03 1:01:39

They can go to fairUS.org and we have a whole investigations page where they'll be able to access the report.

SPEAKER_01 1:01:47

Awesome. Thank you so much, Mateo. We really appreciate you coming on Rationally Based and giving our listeners this insight.

SPEAKER_03 1:01:53

Thanks. Thank you, Catherine. Thank you, Professor Warren.

SPEAKER_01 1:01:56

Thank you all so much for listening to Rationally Based. A quick reminder to head over to our Substack and subscribe. Also, if you wouldn't mind, go on Apple Podcasts and give us five stars. We have a couple libs in there giving us one star. We gotta fight them back, okay, guys? Come on. So five stars, if you would, Spotify as well. It would mean the world to us. Um thank you so much for listening, and we will see you next week.