Category: reason

Mandatory Voting Will Build Resentment, Not Democracy

American democracy—or, at least, the California simulation of it—requires that even disinterested and actively hostile non-voters mark a ballot so government officials can gin up participation numbers, says Assemblyman Marc Levine (D-San Rafael). Levine has introduced a bill that would make voting compulsory, with civil penalties for the non-compliant. It’s a proposal that seems guaranteed to make disaffected non-voters become even less impressed with a sketchy political process.

If passed, the measure would “require a person who qualifies and is registered to vote to cast a ballot, marked or unmarked in whole or in part, at every election held within the territory within which the person resides and the election is held. The bill would require the Secretary of State to enforce this requirement,” according to the summary.

In defending the bill, Levine points to the 20-plus supposedly healthier democracies around the world that have some sort of compulsory ballot-marking on their law books. The number is a bit vague, since several countries have experimented with mandatory voting, then dropped it, while others implement it only regionally, and still others have it on the books but don’t bother with enforcement.

“Can a country be considered to practice compulsory voting if the mandatory voting laws are ignored and irrelevant to the voting habits of the electorate?” asks the Stockholm-based International Institute for Democracy and Electoral Assistance. “Is a country practicing compulsory voting if there are no penalties for not voting? What if there are penalties for failing to vote but they are never or are scarcely enforced? Or if the penalty is negligible?”

Belgium and Singapore, for example, threaten to punish non-voters by, ummm, not letting them vote in subsequent elections.

Apparently, that all sounds awesome to Assemblyman Levine.

“Democracy is not a spectator sport – it requires the active participation of all its citizens,” huffed Levine in a press release. “California is a national leader on expanding voting rights to its citizens. Those rights come with a responsibility by registered voters to cast their ballot and make sure that their voice is heard by their government.”

“Heard by their government?” But doesn’t refusing to vote say something loud and clear in and of itself? As a form of speech, refusing to cast a ballot would seem to be an expression of disinterest in or opposition to the political system—certainly clearer than scribbling on a ballot just so you don’t have to pay a fine.

That actually happens a lot in Australia, the one country fans of mandatory voting keep citing because it’s a more-or-less functioning democracy with consistently high (over 90 percent) voter turnout and enforced financial penalties for scofflaws. Voter guides in Australia instruct people on the right way to express their disgust and disinterest on their ballots.

“If you leave the ballot paper blank, or fill it out incorrectly, or draw a dick and balls on the page instead of numbering the boxes, then that’s an informal vote. It doesn’t count,” advises the Australian radio current affairs program Hack. “If you number each box in the order that the candidates appear, that’s a donkey vote—and it definitely counts in the overall tally.”

That guide advises grudging voters on the proper way to cast a thoughtless, low-effort donkey vote because Australia offers something that California doesn’t: ranked voting among numerous competing parties and candidates. If your first choice doesn’t make the cut-off, your vote passes to your second choice, and so on, down the line.

California, by contrast, has a top-two primary system, which often results in a general election ballot featuring “rival” candidates from the same party—usually Democrats, given the state’s current political tilt.

“Millions of California voters saw same-party races on November’s ballot and left the space blank,” the Los Angeles Times reported in 2018. Among those races was the U.S. Senate contest between Democrat Dianne Feinstein and Democrat Kevin De Leon.

“This is the system that helped Levine keep his seat in 2018: He defeated another Democrat, Dan Monte,” Scott Shackford pointed out last month.

These kinds of contests, The New York Times insightfully notes, raise “a high school civics class question: should voters have a choice of two different philosophies?”

Nah, says Assemblyman Levine. Make ’em vote, because … because …

Why?

“The bigger the voter pool, the stronger the contract is between citizens and leaders,” insisted economist Dambisa Moyo in an October 2019 New York Times op-ed calling for mandatory voting.

Are we really supposed to believe that the social contract is strengthened by threatening people with fines unless they mail in a sheet of paper with “a dick and balls on the page”?

Levine’s bill says you’re off the hook if you “cast a ballot, marked or unmarked in whole or in part.” He seems content so long as he can to point to a stack of envelopes and crow, “That’s participation! Ain’t democracy grand?”

Rather than reinforce some mythical contract between voters and politicians, mandatory voting would seem more likely to further erode connections and build resentment. “Participate in our bogus process or else” seems designed to sour people on voting and politics, not build enthusiasm.

There may be more to it. Popular belief has it that non-voters lean left, so if you could get them to the polls, you could tilt American elections to Democrats like Levine (economist Moyo alludes to this in her piece). But survey results are iffy on this point.

In the U.S., non-voters generally do prefer Democrats—but not in battleground states, where they lean Republican. And voters are generally split on presidential preferences for the 2020 election: were they to vote, 33 percent say they would support the eventual Democratic nominee, 30 percent would vote for Trump, and 18 percent for somebody else, according to The Knight Foundation’s “The 100 Million Project.”

And what, exactly, would be the advantage in California, where the ballot is already thoroughly rigged? Levine would force more voters to the polls so they could choose between him and clone-him, just to avoid paying a fine.

Mandatory voting isn’t likely to build respect for democracy or make sure that anybody’s voice is heard by the government. But fining non-voters will do an effective job of demonstrating that government is all about forcing people to do things just to make politicians happy.

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Mandatory Voting Will Build Resentment, Not Democracy

American democracy—or, at least, the California simulation of it—requires that even disinterested and actively hostile non-voters mark a ballot so government officials can gin up participation numbers, says Assemblyman Marc Levine (D-San Rafael). Levine has introduced a bill that would make voting compulsory, with civil penalties for the non-compliant. It’s a proposal that seems guaranteed to make disaffected non-voters become even less impressed with a sketchy political process.

If passed, the measure would “require a person who qualifies and is registered to vote to cast a ballot, marked or unmarked in whole or in part, at every election held within the territory within which the person resides and the election is held. The bill would require the Secretary of State to enforce this requirement,” according to the summary.

In defending the bill, Levine points to the 20-plus supposedly healthier democracies around the world that have some sort of compulsory ballot-marking on their law books. The number is a bit vague, since several countries have experimented with mandatory voting, then dropped it, while others implement it only regionally, and still others have it on the books but don’t bother with enforcement.

“Can a country be considered to practice compulsory voting if the mandatory voting laws are ignored and irrelevant to the voting habits of the electorate?” asks the Stockholm-based International Institute for Democracy and Electoral Assistance. “Is a country practicing compulsory voting if there are no penalties for not voting? What if there are penalties for failing to vote but they are never or are scarcely enforced? Or if the penalty is negligible?”

Belgium and Singapore, for example, threaten to punish non-voters by, ummm, not letting them vote in subsequent elections.

Apparently, that all sounds awesome to Assemblyman Levine.

“Democracy is not a spectator sport – it requires the active participation of all its citizens,” huffed Levine in a press release. “California is a national leader on expanding voting rights to its citizens. Those rights come with a responsibility by registered voters to cast their ballot and make sure that their voice is heard by their government.”

“Heard by their government?” But doesn’t refusing to vote say something loud and clear in and of itself? As a form of speech, refusing to cast a ballot would seem to be an expression of disinterest in or opposition to the political system—certainly clearer than scribbling on a ballot just so you don’t have to pay a fine.

That actually happens a lot in Australia, the one country fans of mandatory voting keep citing because it’s a more-or-less functioning democracy with consistently high (over 90 percent) voter turnout and enforced financial penalties for scofflaws. Voter guides in Australia instruct people on the right way to express their disgust and disinterest on their ballots.

“If you leave the ballot paper blank, or fill it out incorrectly, or draw a dick and balls on the page instead of numbering the boxes, then that’s an informal vote. It doesn’t count,” advises the Australian radio current affairs program Hack. “If you number each box in the order that the candidates appear, that’s a donkey vote—and it definitely counts in the overall tally.”

That guide advises grudging voters on the proper way to cast a thoughtless, low-effort donkey vote because Australia offers something that California doesn’t: ranked voting among numerous competing parties and candidates. If your first choice doesn’t make the cut-off, your vote passes to your second choice, and so on, down the line.

California, by contrast, has a top-two primary system, which often results in a general election ballot featuring “rival” candidates from the same party—usually Democrats, given the state’s current political tilt.

“Millions of California voters saw same-party races on November’s ballot and left the space blank,” the Los Angeles Times reported in 2018. Among those races was the U.S. Senate contest between Democrat Dianne Feinstein and Democrat Kevin De Leon.

“This is the system that helped Levine keep his seat in 2018: He defeated another Democrat, Dan Monte,” Scott Shackford pointed out last month.

These kinds of contests, The New York Times insightfully notes, raise “a high school civics class question: should voters have a choice of two different philosophies?”

Nah, says Assemblyman Levine. Make ’em vote, because … because …

Why?

“The bigger the voter pool, the stronger the contract is between citizens and leaders,” insisted economist Dambisa Moyo in an October 2019 New York Times op-ed calling for mandatory voting.

Are we really supposed to believe that the social contract is strengthened by threatening people with fines unless they mail in a sheet of paper with “a dick and balls on the page”?

Levine’s bill says you’re off the hook if you “cast a ballot, marked or unmarked in whole or in part.” He seems content so long as he can to point to a stack of envelopes and crow, “That’s participation! Ain’t democracy grand?”

Rather than reinforce some mythical contract between voters and politicians, mandatory voting would seem more likely to further erode connections and build resentment. “Participate in our bogus process or else” seems designed to sour people on voting and politics, not build enthusiasm.

There may be more to it. Popular belief has it that non-voters lean left, so if you could get them to the polls, you could tilt American elections to Democrats like Levine (economist Moyo alludes to this in her piece). But survey results are iffy on this point.

In the U.S., non-voters generally do prefer Democrats—but not in battleground states, where they lean Republican. And voters are generally split on presidential preferences for the 2020 election: were they to vote, 33 percent say they would support the eventual Democratic nominee, 30 percent would vote for Trump, and 18 percent for somebody else, according to The Knight Foundation’s “The 100 Million Project.”

And what, exactly, would be the advantage in California, where the ballot is already thoroughly rigged? Levine would force more voters to the polls so they could choose between him and clone-him, just to avoid paying a fine.

Mandatory voting isn’t likely to build respect for democracy or make sure that anybody’s voice is heard by the government. But fining non-voters will do an effective job of demonstrating that government is all about forcing people to do things just to make politicians happy.

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Oregon Tried To Silence This Engineer’s Red Light Camera Research. Now Experts Say He Was Right All Along.

More than five years after Mats Järlström was threatened with fines for presenting data that challenged Oregon’s red light camera program, his research has changed the way traffic engineers will calculate the timing of yellow lights.

The Institute of Traffic Engineers (ITE), an international group that publishes guidelines and best practices with an eye towards safety and mobility, published an update to its guidance for traffic signal timing last week. The new standard takes into account a wide variety of factors, including vehicle approach speeds, deceleration rates, intersection width, vehicle length, and more, according to an ITE statement announcing the changes. But Järlström’s research—specifically, his “extended kinematic equation“—is cited as playing a key role in the ITE’s updated yellow light timing formula.

That research never would have seen the light of day if the Oregon Board of Examiners for Engineering and Land Surveying had its way.

Järlström got on the board’s bad side because he tried to challenge a traffic ticket given to his wife by a red light camera in Beaverton, Oregon, in 2013. He challenged the ticket by questioning the timing of the yellow lights at intersections where the cameras had been installed, using knowledge from his degree in electrical engineering and his experience working the Swedish Air Force and various technical jobs since immigrating to the United States in 1992. His research landed him in the media spotlight—in 2014, he presented his evidence on an episode of 60 Minutes—and earned him an invitation to present his findings to the ITE.

But the Oregon board said Järlström’s research amounted to practicing engineering without a license. In a 2014 letter, the board told Järlström that even calling himself an “electronics engineer” and the use of the phrase “I am an engineer” were enough to “create violations” that could result in a $500 fine.

Järlström fought back. With the help of the Institute for Justice, a libertarian law firm that often challenges ridiculous licensing laws, Järlström took his case to federal court. The trial was a disaster for the licensing board, which was forced to concede that its attempt to silence Järlström “was not narrowly tailored to any compelling state interests.” The board refunded the $500 fine, was prohibited from targeting Järlström again “for his speech about traffic lights and his description of himself as an engineer except in the context of professional or commercial speech,” and got a public dressing-down from Judge Stacie F. Beckerman.

Beckerman’s ruling ordered the Oregon board to restrict its policing of licensing issues exclusively to individuals who are working as professional engineers—that is, being hired to do engineering work—rather than simply practicing engineering skills. That seems like a necessary restriction, considering the board’s history of investigating everyone from amateur engineers like Järlström to political candidates who promised to “engineer solutions” and even a Portland magazine that credited a local leader for being the engineer, metaphorically, of a new bridge project in the city.

Free to work without overzealous licensing boards breathing down his neck, Järlström has now made an important change to how traffic light timing will work. Specifically, his formula takes into account the time required for drivers to slow down if they are turning at an intersection. It has the potential to improve safety and to cut down on erroneous tickets at intersections with automated red light cameras like the one that nabbed Järlström’s wife in 2013.

“It didn’t take an engineering license to realize that the formula for traffic light timing was flawed,” Järlström said in an Institute for Justice press release. “Hopefully this change will give everyone a little more time to get through an intersection safely.”

So the next time you narrowly skip through an intersection before the light turns red, you can thank Järlström—and the attorneys and judges who stood up for his right to do math without a license.

“The First Amendment protects Americans’ right to speak regardless of whether they are right or wrong,” Sam Gedge, an Institute for Justice attorney, said in the press release. “In Mats’s case, the ITE committee’s decision suggests that he not only has a right to speak, but also, that he was right all along.”

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Oregon Tried To Silence This Engineer’s Red Light Camera Research. Now Experts Say He Was Right All Along.

More than five years after Mats Järlström was threatened with fines for presenting data that challenged Oregon’s red light camera program, his research has changed the way traffic engineers will calculate the timing of yellow lights.

The Institute of Traffic Engineers (ITE), an international group that publishes guidelines and best practices with an eye towards safety and mobility, published an update to its guidance for traffic signal timing last week. The new standard takes into account a wide variety of factors, including vehicle approach speeds, deceleration rates, intersection width, vehicle length, and more, according to an ITE statement announcing the changes. But Järlström’s research—specifically, his “extended kinematic equation“—is cited as playing a key role in the ITE’s updated yellow light timing formula.

That research never would have seen the light of day if the Oregon Board of Examiners for Engineering and Land Surveying had its way.

Järlström got on the board’s bad side because he tried to challenge a traffic ticket given to his wife by a red light camera in Beaverton, Oregon, in 2013. He challenged the ticket by questioning the timing of the yellow lights at intersections where the cameras had been installed, using knowledge from his degree in electrical engineering and his experience working the Swedish Air Force and various technical jobs since immigrating to the United States in 1992. His research landed him in the media spotlight—in 2014, he presented his evidence on an episode of 60 Minutes—and earned him an invitation to present his findings to the ITE.

But the Oregon board said Järlström’s research amounted to practicing engineering without a license. In a 2014 letter, the board told Järlström that even calling himself an “electronics engineer” and the use of the phrase “I am an engineer” were enough to “create violations” that could result in a $500 fine.

Järlström fought back. With the help of the Institute for Justice, a libertarian law firm that often challenges ridiculous licensing laws, Järlström took his case to federal court. The trial was a disaster for the licensing board, which was forced to concede that its attempt to silence Järlström “was not narrowly tailored to any compelling state interests.” The board refunded the $500 fine, was prohibited from targeting Järlström again “for his speech about traffic lights and his description of himself as an engineer except in the context of professional or commercial speech,” and got a public dressing-down from Judge Stacie F. Beckerman.

Beckerman’s ruling ordered the Oregon board to restrict its policing of licensing issues exclusively to individuals who are working as professional engineers—that is, being hired to do engineering work—rather than simply practicing engineering skills. That seems like a necessary restriction, considering the board’s history of investigating everyone from amateur engineers like Järlström to political candidates who promised to “engineer solutions” and even a Portland magazine that credited a local leader for being the engineer, metaphorically, of a new bridge project in the city.

Free to work without overzealous licensing boards breathing down his neck, Järlström has now made an important change to how traffic light timing will work. Specifically, his formula takes into account the time required for drivers to slow down if they are turning at an intersection. It has the potential to improve safety and to cut down on erroneous tickets at intersections with automated red light cameras like the one that nabbed Järlström’s wife in 2013.

“It didn’t take an engineering license to realize that the formula for traffic light timing was flawed,” Järlström said in an Institute for Justice press release. “Hopefully this change will give everyone a little more time to get through an intersection safely.”

So the next time you narrowly skip through an intersection before the light turns red, you can thank Järlström—and the attorneys and judges who stood up for his right to do math without a license.

“The First Amendment protects Americans’ right to speak regardless of whether they are right or wrong,” Sam Gedge, an Institute for Justice attorney, said in the press release. “In Mats’s case, the ITE committee’s decision suggests that he not only has a right to speak, but also, that he was right all along.”

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Gloria Alvarez Is Fighting Socialism in Latin America

Gloria Álvarez became one of the best-known libertarian personalities in Latin America in 2014, after she gave a talk arguing against populism on both left and right and pointing out the absurdity of admiring the socialist dictatorships in Venezuela and Cuba.

The 35-year-old granddaughter of Cuban and Hungarian refugees is the host of the program Liber Viernes, or Free Fridays, on the Guatemalan radio station Libertopolis, and she’s the author of several books, including The Populist Deception, How To Talk to a Progressive, and How To Talk to a Conservative.

Nick Gillespie sat down with Álvarez at a Reason Foundation conference in Guatemala to talk about the resurgence of socialism in Latin America, reaching young people with libertarian ideas, and why she believes that political, cultural, economic, and sexual freedom are all intertwined and non-negotiable.

Interview by Nick Gillespie. Edited by Ian Keyser. Intro by Lex Villena. Cameras by Jim Epstein and Pablo Gordillo.

‘Modum’ by Kai Engel is licensed under CC BY 4.0

Photo credit Zuma/Newscom

Related links:

Gloria Álvarez on Instagram.

Gloria Álvarez on Twitter.

Gloria Álvarez at Libertopolis.

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Gloria Alvarez Is Fighting Socialism in Latin America

Gloria Álvarez became one of the best-known libertarian personalities in Latin America in 2014, after she gave a talk arguing against populism on both left and right and pointing out the absurdity of admiring the socialist dictatorships in Venezuela and Cuba.

The 35-year-old granddaughter of Cuban and Hungarian refugees is the host of the program Liber Viernes, or Free Fridays, on the Guatemalan radio station Libertopolis, and she’s the author of several books, including The Populist Deception, How To Talk to a Progressive, and How To Talk to a Conservative.

Nick Gillespie sat down with Álvarez at a Reason Foundation conference in Guatemala to talk about the resurgence of socialism in Latin America, reaching young people with libertarian ideas, and why she believes that political, cultural, economic, and sexual freedom are all intertwined and non-negotiable.

Interview by Nick Gillespie. Edited by Ian Keyser. Intro by Lex Villena. Cameras by Jim Epstein and Pablo Gordillo.

‘Modum’ by Kai Engel is licensed under CC BY 4.0

Photo credit Zuma/Newscom

Related links:

Gloria Álvarez on Instagram.

Gloria Álvarez on Twitter.

Gloria Álvarez at Libertopolis.

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Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak)

This morning, the Supreme Court granted certiorari in Texas v. United States, the ambitious red state lawsuit trying to tear down the entire Affordable Care Act because Congress zeroed out the tax penalty for failing to purchase qualifying insurance. As Josh notes below, the case will be heard on the Fall (though whether before or after the election remains to be determined).

The reason for the cert grant is understandable: A lower federal court invalidated a provision of federal law, with potentially significant implications. This is often reason enough to grant certiorari. Of note, the Court accepted both the petition filed by the blue states challenging the Fifth Circuit’s decision, as well as the cross-petition filed by the red states seeking to ensure that severability is among the questions presented to the Court.

As readers know, I believe this is a dog of a case. The case plaintiffs have standing is quite weak, and the ultimate severability arguments are unmoored from existing doctrine as well as the original understanding of the Article III judicial power.

I critiqued the Fifth Circuit’s opinion here. Most of my other prior posts on this case are listed in this post (except for this one).

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Red State Challenge to Affordable Care Act Goes to SCOTUS (But the Arguments Remain Incredibly Weak)

This morning, the Supreme Court granted certiorari in Texas v. United States, the ambitious red state lawsuit trying to tear down the entire Affordable Care Act because Congress zeroed out the tax penalty for failing to purchase qualifying insurance. As Josh notes below, the case will be heard on the Fall (though whether before or after the election remains to be determined).

The reason for the cert grant is understandable: A lower federal court invalidated a provision of federal law, with potentially significant implications. This is often reason enough to grant certiorari. Of note, the Court accepted both the petition filed by the blue states challenging the Fifth Circuit’s decision, as well as the cross-petition filed by the red states seeking to ensure that severability is among the questions presented to the Court.

As readers know, I believe this is a dog of a case. The case plaintiffs have standing is quite weak, and the ultimate severability arguments are unmoored from existing doctrine as well as the original understanding of the Article III judicial power.

I critiqued the Fifth Circuit’s opinion here. Most of my other prior posts on this case are listed in this post (except for this one).

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Will the Supreme Court hear the Obamacare cases before or after the 2020 Election?

This morning the Supreme Court granted certiorari in the Obamacare cases from Texas. Will the case be argued before or after November 3, 2020, the date of the Presidential election? According to the Supreme Court’s calendar for the October 2020 Term, there are six possible oral argument dates prior to election day: October 5, 6, 7, 13, 14, and November 2. Assuming each case is one hour long, the Court can hear twelve hours of argument time before the election.

So far, the Supreme Court has already granted five petitions (including consolidated cases) that have not been scheduled for OT 2019, and will presumably be granted for OT 2020. (Let me know if I am missing any). I’ve sorted them by date of grant:

The Supreme Court does not always schedule cases based on the order in which the petitions for certiorari were granted. That is, there is no guarantee that Salinas is argued on the first Monday in October.

If the ACA case is scheduled on October 5, 6, 7, 13, or 14, I am fairly confident that the oral argument audio will be used in political advertisements against President Trump. (If the case is argued on Monday, November 2, the audio would not be released until Friday, November 6, after the election.)

The Supreme Court already has some experience with its oral Obamacare oral arguments being used in political ads. Indeed, in 2012, the RNC doctored audio from Solicitor General Verrilli’s oral argument in Florida v. HHS oral argument. NPR offered this report:

The ad has been criticized for doctoring the audio at the start of Solicitor General Donald Verilli Jr.’s argument at which he paused, took a sip of water and cleared his throat.

Verilli’s hesitation was brief, just a few seconds. But the ad makes it appear that Verilli was completely at a loss by lengthening the pause and repeating the sound of the ice clinking in his glass and repeating Verilli saying “Excuse me” to the justices.

The ad ends with the text “ObamaCare: It’s a tough sell.” Bloomberg News’ Julie Hirshfeld Davis and Greg Stohr offers one of the more comprehensive stories about the ad.

I offered this account in Unprecedented:

The Drudge Report blasted a picture of Verrilli with the headline “Obama’s Lawyer Chokes Again.” Within hours a. er the audio of the arguments was released, the Republican National Committee released a YouTube advertisement attacking Verrilli’s performance. The advertisement took the audio of Verrilli choking at the podium and doctored it to make the awkward silence last longer than it actually did. Over a stark picture of the Supreme Court, the headline “ObamaCare: It’s a Tough Sell” appeared. The import was clear—not even the government could justify this law. The Obama administration rallied to defend Verrilli. Obama’s deputy campaign manager, Stephanie Cutter, said that the attack on Verrilli was a “low blow” and that he was “one of the most talented attorneys in this country. He made a very forceful argument and we knew these arguments were going to be tough.”

Tom Goldstein, a frequent Supreme Court litigant and the founder of SCOTUSBlog, described the advertisement as “the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it.”

I agree with Goldstein. And this decision went a long way to keep cameras out of the Supreme Court chamber.

I fully expect similar ads to be created if the Supreme Court schedules oral arguments on October 5, 6, 7, 13, or 14. Indeed, I worry that one or more Justices will ask questions that, out of context, seem far more accusatory in a sliced-and-diced advertisement.

If the Court schedules the case after the election, it will be painted as political. If it schedules the case before the election, and arguments seem favorable to President Trump, the Court will be painted as political. Damned if you do, damned if you don’t. The upshot of the former option, is that these political attacks will be kept out of the election spotlight.

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Will the Supreme Court hear the Obamacare cases before or after the 2020 Election?

This morning the Supreme Court granted certiorari in the Obamacare cases from Texas. Will the case be argued before or after November 3, 2020, the date of the Presidential election? According to the Supreme Court’s calendar for the October 2020 Term, there are six possible oral argument dates prior to election day: October 5, 6, 7, 13, 14, and November 2. Assuming each case is one hour long, the Court can hear twelve hours of argument time before the election.

So far, the Supreme Court has already granted five petitions (including consolidated cases) that have not been scheduled for OT 2019, and will presumably be granted for OT 2020. (Let me know if I am missing any). I’ve sorted them by date of grant:

The Supreme Court does not always schedule cases based on the order in which the petitions for certiorari were granted. That is, there is no guarantee that Salinas is argued on the first Monday in October.

If the ACA case is scheduled on October 5, 6, 7, 13, or 14, I am fairly confident that the oral argument audio will be used in political advertisements against President Trump. (If the case is argued on Monday, November 2, the audio would not be released until Friday, November 6, after the election.)

The Supreme Court already has some experience with its oral Obamacare oral arguments being used in political ads. Indeed, in 2012, the RNC doctored audio from Solicitor General Verrilli’s oral argument in Florida v. HHS oral argument. NPR offered this report:

The ad has been criticized for doctoring the audio at the start of Solicitor General Donald Verilli Jr.’s argument at which he paused, took a sip of water and cleared his throat.

Verilli’s hesitation was brief, just a few seconds. But the ad makes it appear that Verilli was completely at a loss by lengthening the pause and repeating the sound of the ice clinking in his glass and repeating Verilli saying “Excuse me” to the justices.

The ad ends with the text “ObamaCare: It’s a tough sell.” Bloomberg News’ Julie Hirshfeld Davis and Greg Stohr offers one of the more comprehensive stories about the ad.

I offered this account in Unprecedented:

The Drudge Report blasted a picture of Verrilli with the headline “Obama’s Lawyer Chokes Again.” Within hours a. er the audio of the arguments was released, the Republican National Committee released a YouTube advertisement attacking Verrilli’s performance. The advertisement took the audio of Verrilli choking at the podium and doctored it to make the awkward silence last longer than it actually did. Over a stark picture of the Supreme Court, the headline “ObamaCare: It’s a Tough Sell” appeared. The import was clear—not even the government could justify this law. The Obama administration rallied to defend Verrilli. Obama’s deputy campaign manager, Stephanie Cutter, said that the attack on Verrilli was a “low blow” and that he was “one of the most talented attorneys in this country. He made a very forceful argument and we knew these arguments were going to be tough.”

Tom Goldstein, a frequent Supreme Court litigant and the founder of SCOTUSBlog, described the advertisement as “the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it.”

I agree with Goldstein. And this decision went a long way to keep cameras out of the Supreme Court chamber.

I fully expect similar ads to be created if the Supreme Court schedules oral arguments on October 5, 6, 7, 13, or 14. Indeed, I worry that one or more Justices will ask questions that, out of context, seem far more accusatory in a sliced-and-diced advertisement.

If the Court schedules the case after the election, it will be painted as political. If it schedules the case before the election, and arguments seem favorable to President Trump, the Court will be painted as political. Damned if you do, damned if you don’t. The upshot of the former option, is that these political attacks will be kept out of the election spotlight.

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