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Nov. 5, 2020 - Dennis Prager Show
08:29
John Yoo: Are Pennsylvania's Bizarre Voting Rules Constitutional?
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All right, everybody, you're listening to The Dennis Prager Show.
Professor of Constitutional Law at UC Berkeley is John Yu.
And John Yu, I'd just like to note, has a new book, Defender in Chief, Donald Trump's Fight for Presidential Power.
By the way, I think I always ask you this, so I'll ask you again.
Are you...
Sort of on the outs at Berkeley.
I mean, you know, when you walk into a room, do they stand up and cheer?
That would be an unusual experience I've never had before.
To be on the outs, I think you had to be on the ends at some point.
Uh-huh, uh-huh.
I'm not sure.
No, you could be permanently on.
You could start on the outs.
Okay, so I think you answered my question.
Fair enough.
So, I really, I love clarity, so I really want to get this for me and my listeners.
The Supreme Court...
Okay, the people...
I'll start at the beginning.
The people who make the rules on how a state votes is the legislature of that state.
Is that correct?
Yes.
However, you threw in something I was not aware of, which is a little monkey wrench in my brain now, but the U.S. Congress can also intervene.
Yes.
Has it ever done so?
So when you read about laws like Congress giving out money for election security, trying to encourage people to secure their systems, that's the extent of it.
Actually, Congress has been very reluctant to use this power.
They generally defer to the states.
That's why, as you've pointed out, the states basically run the election systems.
Push that down to the county level, and it's really the counties that are running the election.
Okay, so then I'm back to my earlier question.
I don't understand, well, I guess I don't understand who passed the law with regard to fudgy, smudgy postmarks.
Wasn't it the Pennsylvania legislature?
No, see, this is why you put your finger on the constitutional problem.
It was the Pennsylvania Supreme Court that did it, not the legislature.
And so if you're Justice Alito, you look at that and say, where did the Pennsylvania Supreme Court get any right at all?
Yes, yes, right.
That's the question that's gone to the Supreme Court of the United States.
Okay, that's a perfectly, unbelievably legitimate question, but why does the U.S. Supreme Court have a say in that?
Because they have to defend the right of the Pennsylvania legislature under the U.S. Constitution.
It's the U.S. Constitution.
That says it's the Pennsylvania legislature that decides.
Oh!
Then I am stunned that four justices did not take the case.
Well, there are four.
They need a fifth.
I know.
No, no.
I'm well aware of that.
And they may now have a fifth.
But I have to say, prima facie, I just don't understand.
I just threw that in because you're a lawyer.
But on the face of it, isn't it obvious?
The Supreme Court of Pennsylvania has as much right to determine electoral law in Pennsylvania as I do.
Yes, that's about right.
According to the way these justices are reading it, you rarely see justices say this.
But Justice Alito, with these other justices joining me, he said, I already think the Pennsylvania Supreme Court has violated our Constitution.
Right.
And this is a nationally important case, and we should intervene.
And what was the argument of the other four?
They didn't say anything, but Justice Roberts later said, well, it sort of plays on your initial instinct on this.
Man, if the state courts are interpreting Pennsylvania law, we don't have a role.
And that's why Justice Alito said...
But that's wrong because it's actually the U.S. Constitution that says the legislature's decided.
This is not under Pennsylvania law.
Right.
Okay, then there's the non-judicial question of how many envelopes came in with smudgy postmarks in Pennsylvania.
In other words, is it a fight over principle rather than over effect?
There's two kinds of cases that are going to come out of Pennsylvania.
One is, was it legitimate to change the date from November 3rd to November 6th?
That's pending at the Supreme Court now.
The other case, the other issue, which is going to have to be litigating, it's not at the Supreme Court.
You're going to have to see cases filed right now at the trial level, which is, are the state officials, city, county officials who are in charge of counting the votes right now, are they doing it in a I
mean, I'm asking you for a prognosis, which is not entirely fair, but it's an educated prognosis.
Could you see the Supreme Court of the United States having to rule on this year?
Interesting.
So it depends whether Pennsylvania is crucial to the outcome of the election.
Suppose Trump doesn't win Nevada and Arizona and Biden clinches without regard to how Pennsylvania goes.
Biden doesn't need Pennsylvania.
Then I could see the Supreme Court stepping back and saying, we don't need to decide this.
It doesn't make any difference.
Why get involved in the middle of this political fight when the Electoral College has already picked Biden?
But if Pennsylvania becomes the state that determines the election, just like Florida 20 years ago, then I think the Supreme Court will decide that first issue, November 3rd date, being switched to November 6th without authority by the Pennsylvania Supreme Court.
Especially if those votes that came in in those three days were determinative.
I actually think that it would be important and easier to take the Pennsylvania case or any other if it didn't determine the results nationally.
Then they can't be accused of putting their thumb on the scale of the elections.
I agree.
That would be good for the country, that we have these rules set up.
Yes, I have that on the idiosyncrasy, I think.
What's good for the country?
But I don't think Chief Justice Roberts is thinking that way.
I think he just wants the Supreme Court to be as small a political target as possible.
Right, that's right.
No matter what.
Yeah.
Well, all right, my friend.
You're a clarifier of issues.
So, by the way, are you having classes now?
What's your story at Berkeley?
Well, we are having classes by Zoom.
I'm actually surprised more students, and more particularly, their parents are not filing for refunds.
I'm stunned.
This is a sad statement I'm going to make, but the supine nature of the American people...
Over lockdown laws and over tuition at colleges has actually saddened me.
I think maybe the one good thing to come out of this is that people are going to now realize how much fat there was in the system.
They're paying for a lot of things they don't need.
You're my hero.
John Yoo as book Defender-in-Chief.
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