Monday, September 23, 2024

The View From Yale Law School

Before I went to law school, I worked as a legal assistant in a large Austin law firm (big fish, small pond, etc.) I learned everything about my job by the seat of my pants, including important little trial practices like “docket call.”

I won’t bore, except to say docket call was where you kept your hearing, or trial, on schedule. Very important, IOW. But not something they teach in law school. At least not in UT law school.

UT law is in Austin. (Well, the medical school isn’t. That’s in Galveston.) A lot of the firm’s interns were students there. They learned a lot about the idea of law, not much about its actual practice. I learned that one day when a clerk (law student) came looking for me to ask about docket call. He’d been told to go there, for a scheduled hearing. He had two questions: 1) where is the courthouse? 2) what do I do when I get there?

That was when I realized, before law school, that lawyers had a lot to learn after law school.

So comes now this Yale law grad who specialized in Constitutional law on elections (really? Lot of call for that, is there?) who sees the view from 30,000 feet but conveniently overlooks the 50 states each with laws on how the vote for POTUS is certified.

Let this be the first example:
That sheriff told his supporters to “write down” the names of people with Harris signs in their yards.
Now The Daily Beast reports that Zuchowski's department has been stripped of its election security duties after multiple residents expressed discomfort with giving him any oversight role in the upcoming presidential election. 
The move to boot Zuchowski and his department out of election security duties came Friday when the local Portage County elections board voted to remove it in a 3-1 vote.
Randi Clites, the county board of elections chair and a Democrat, said she believed that removing the department from overseeing the voting process was necessary to ensure no voter felt intimidated at the polls.
Democracy, in other words, works. I’m not sure that shows up in a Constitutional analysis, but it’s certainly consistent with the Constitution.

The Yale law student cites Georgia and its Board of Elections decision to hand count ballots. I suspect that decision is very unpopular, especially when it starts putting Georgia’s electoral college count in jeopardy.  Aside from that, there’s that question of state law. The Georgia AG has already told the Board their action violates state law. If the AG sues to enforce state law, will the Constitution protect the State Board?

Yeah, probably not.

There are a lot of moving parts in the Rube Goldbergian presidential election machinery in this country. Most of it works because the actions, up to the acceptance of the Electoral College slates in Congress, are ministerial acts. Meaning they are non-discretionary. Yes, some Representatives and Senators object every four years; but that’s because they know their objections are symbolic, not substantive. They don’t actually want to be responsible for throwing a monkey wrench in the machinery. But neither can they be legally restrained. State agencies charged with certifying the vote, however, can. And they are.

We didn’t just wake up to the possibility of shenanigans in our elections on January 6, 2021. It will take a lot more than the acts of three clowns in Georgia, or a sheriff on Facebook in Oregon, to start the clanking machinery of the 12th Amendment grinding. Even Trump, with the government behind him, couldn’t do that.

Honestly, these hot takes are just hot garbage. 🗑️ 
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