Ep 205 — Happy (All But One) Presidents Day!

Osterreicher went on to describe four additional holding rooms on the ninth floor of 26 Federal Plaza, which has never before been publicly acknowledged by ICE officials. He said people are generally held there for less than 12 hours and are often shifted back to the 10th floor as space becomes available. It is not my sense that it is overcrowded, Osterreicher said, adding that even though ICE didn't believe Kaplan's order applied there, many of the provisions of it were in place on that floor, like providing adequate food. food i you hear my there you go like that is all the things welcome to law and chaos where a judge spent president's day reading trump for filth over president's house in philadelphia and the house passed a law that would cut the motor voter bill and courts are getting pretty damn tired of having to tell the Department of Homeland Security that it has to abide by the Fifth Amendment, even when those ICE guys really don't want to. We've got a lot to cover, so let's get after it. Hey guys, I'm Liz Dian. With me as always is Andrew Torres. Andrew, how are you? I'm good, Liz. Happy every president but one day. Yeah. Which president are you referring to? I don't know. Did you have a nice weekend? I had a lovely weekend. It was a nice Valentine's Day. How about you? Me too. All right. Well, we have a really interesting show today. Courts were not open. So for once, we did not feel like we were getting punched in the throat by the news. But that did not stop one judge in Pennsylvania from telling Donald Trump to keep George Washington's name out of his filthy whore mouth. Is that a direct quote? I mean, more or less. We've got two stories about temporary immigration detention. Both of these are good rulings. We will also break down Trump's vow to impose national voter ID for the midterms. Yeah. Spoiler alert. No. No. And for subscribers, we've got a discussion of a rule barring ICE from making warrantless arrests inside churches. But first, talking alerts. Okay. Let us celebrate President's Day with some naked corruption. I just like our president. Indeed. The IP law firm Gerben Parrott, PLLC, noticed some funny trademark applications filed Friday for President Donald J. Trump International Airport, also for Donald J. Trump International Airport and DJT. And what a surprise. The Florida House and Senate both have bills pending to rename Palm Beach International Airport to Donald J. Trump International Airport. And shout out to Florida politics blogger Jason Garcia at Seeking Rents for catching the allocation in the Senate and House bills. Trump previously tried to get Chuck Schumer to agree to rename Dulles Airport and also Penn Station in New York for him, for Trump. He's been holding up transportation money for New York, and he said he'd release it if Schumer would just agree to rename everything for the emperor god king. But no dice. Weird place for Chuck Schumer to draw the line in the sand. But OK, look, I guess the lesson is no matter how corrupt and stupid you think things are, they can always get worse. Aha. So Gerben says that the U.S. government would have to pay to license the name from Trump's LLC if the airport was in fact renamed. The $10 billion in taxes. Moving on to something nicer. On Friday, Denver District Court Judge Sarah Wallace ruled that Colorado's policy of coercing prisoners to work with threats of putting them in solitary confinement violates the state's constitutional ban on involuntary servitude. So let's unpack that a little bit. In 2018, Colorado amended its state constitution. Previously, it said there shall never be in the state either slavery or involuntary servitude except as a punishment for a crime, whereof the party shall have been duly convicted. And that language tracks it directly mirrors the language of the 13th Amendment to the U.S. Constitution. But Amendment A removed that second clause, the exception allowing for slavery or involuntary servitude as punishment for a crime. It is honestly so astonishing to me that we allow forced labor in prisons. It's so disgusting. I strong agree. Well, Colorado took the position that threatening to ticket prisoners for failure to work and by ticket, they mean shackle them and put them in solitary confinement, that that did not amount to coercion. Honestly, the results in the right direction. This opinion was not great. Judge Wallace said that the Bureau of Prisons obligatory work regulations were not facially illegal and that it was not coercion to withhold, quote, privileges like visits with family from prisoners who refuse to work. But Judge Wallace allowed an as applied challenge to go forward, right, that the way in which this policy was being put into practice wound up being discriminatory. So you had to have two strikes essentially to be sent into solitary confinement. And the guards, in practice, were using the policies in a way that wound up being coercive of inmates who chose not to work. So if a prisoner refused to work, they would double count that. You get a demerit for not working and also for refusing a lawful order from the guards. Or if two different prisoners each refused to work, even if they weren't talking to each other, both of them would get written up for advocating or creating a facility disruption in addition to the not working. And then the two penalties would get them sent to the hole. That is the only part of how the policy was put into practice that Judge Wallace said amounted to involuntary servitude. But at least it's something. I mean, it's a start. OK, the next one is a rage maker. Unlike the rest of our usual cheery fair here at Longcast. Yeah. So this one involves the house where George Washington and John Adams conducted official business in Philadelphia. It's known as President's House. Appropriately, this decision came out on President's Day. And, you know, I did not know much about this place until I read the ruling. But George Washington lived there with nine enslaved people. And those nine people rotated in and out because Pennsylvania allowed slaves who were in the state for more than six months to petition for their freedom. So these people were forced to go back to Mount Vernon periodically to ensure that they remained enslaved. Two of these people actually did escape eventually, Hercules Posey and Oney Judge. And look, so much of our debate about how this country was going to be governed revolved around slavery and what to do about this, you know, the peculiar institution, this peculiar institution. So in 2002, there was this huge debate in the city about how to acknowledge the glaring contradiction between our ideals and our real history. And so the museum constructed this additional exhibit on what were essentially the slave quarters. The exhibit commemorated the enslaved people who lived there and talked about their experience and acknowledged the moral failure inherent in our first president owning slaves. Yeah. But on January 22nd, the National Park Service removed that exhibit on the enslaved people, along with almost every reference to slavery. It was pursuant to one of Trump's really vile executive orders instructing his flying monkeys to remove any reference to America as anything other than a shining city on the hill. Yeah. The city of Philadelphia sued. For the past two decades, the city has run the project collaboratively with the Park Service. They have a joint agreement to run, to operate and maintain the exhibit. And the city said that unilaterally ripping out the exhibit violated that agreement as well as the Administrative Procedure Act. The case got assigned to Judge Cynthia Roof, who is a George W. Bush appointee. I think she qualifies as an old bull. Well, she certainly gored the Park Service. This opinion is furious, and rightfully so. It literally begins with a George Orwell quote about history as a palimpsest, scraped clean and reinscribed exactly as often as was necessary. She compares the Trump administration to the Ministry of Truth. I mean, and she's not wrong. Yeah. Substantively, Judge Rufi or Judge Rufi ruled that the city has a statutory right and expectation to mutual agreement on any changes or alterations to the park, including the president's house, to written agreement for placement of any monument or memorial and to consultation on all matters of importance to the park. Removal of the president's house displays invaded this legally protected interest. And so she ordered the Trump administration to put the exhibit back as it was immediately. And look, it was a really moving order. It's this President's Day and we're all feeling a lot about the fate of the republic. Andrew, do you want to read the concluding paragraphs? Yes, I do. She says, the city has established that the government's actions to remove displays from the president's house are likely contrary to law. And, as courts recognize, there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations. Further, with the parties accepting the displays as historically accurate, there is a public interest in the preservation and exhibition of that history. Defendants, for their part, raise only one argument for why an injunction would be inequitable. They argue that there's a public interest in upholding the federal government's right to convey its preferred speech, i.e. its Orwellian rewriting. She continues. Restoration of the president's house does not infringe upon the government's free speech, nor is the government prevented from conveying whatever message it wants to send by wiping away the history of the greatest founding father's management of persons he held in bondage. President Washington's House would not merit designation as a historic site if he had not commanded the army that won the Revolutionary War, whose presence presiding over the Constitutional Convention graced it with the gravitas and the spirit necessary to the creation of our government's foundational document, and his restraint and modesty radiated strength and wisdom that defines the ideal chief executive to this day. The government can convey a different message without restraint elsewhere if it so pleases, but it cannot do so to the president's house until it follows the law and consults with the city. Yeah. Okay. Let's take a little break. And we're back. Okay, it is Tuesday, and we are so grateful to all our new subscribers. Let's thank them now on Substack at LongChaosPod.com. Thank you to Chris, Douglas, Kalai, Connor McFarland, Jeff Bowen, Glizzy. Thank you to Aaron M. and Mitch the Fish, or maybe it's Mick the Fish. I'm not sure. Mish the Fish. Mish the Fish. Could be that. 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It's a whole thing. Okay, let's talk about two recent decisions regarding so-called temporary detention facilities. We've all read that ICE is taking the $75 billion allocated to it under the One Big Beautiful Bill Act, a.k.a. Abba the Hut, and using it to buy up a bunch of abandoned warehouses for a nationwide network of concentration camps And yes I have seen Jake Tapper complaining about people calling them concentration camps And I do not intend to stop calling that because never again is right now Jake. Amen to that. So those warehouses have not come online as detention facilities yet. And so instead, Homeland Security is jailing people in what are euphemistically referred to as temporary facilities, particularly in places where they have done these immigration surges. So some of these temporary facilities are these vast, tense cities in places like Texas, but others are just repurposed office buildings. They're basements. These are facilities that were never meant to house more than a few people at a time, and not for more than 12 hours. And people have been stacked in these facilities for days or even weeks without beds, without windows, and courts have had to come in and order the government to provide basic hygiene, food, water, medical care because Homeland Security is essentially torturing these people as a tool to force them to agree to be deported. Yeah. So let's start in Minnesota, where Judge Nancy Brazel signed a temporary restraining order Thursday, ensuring that detainees at the Whipple building in Minneapolis get access to counsel commensurate with the guarantees provided by the Fifth Amendment. Whipple is one of those DHS office buildings. It is a temporary holding facility for processing immigrants, and that's been converted to basically medium-term detention without adequate upgrades. Yeah, this is a really interesting order, both for what it does and for what it says about the way that courts perceive the Department of Homeland Security and the Department of Justice. The top line is that Judge Brazel barred ICE from transferring anyone out of the state of Minnesota for the first 72 hours of detention. That is critical since the government is disappearing people into those aforementioned tent gulags in Texas as quickly as possible. And even if a judge orders someone released, ICE often just ignores that order for weeks. So the purpose of the TRO is to ensure that immigrants have time to file a habeas petition in Minnesota before being essentially kidnapped to the Fifth Circuit. These guys are never, ever going to beat that slave catcher analogy. So the TRO says that within an hour of their detention, ICE must provide detainees with their A numbers. That's the ID that allows their counsel to track them in the detainee lookup system. They also have to be provided with a list of legal services providers and free private phone calls with counsel and enough time on the phone that they can reach their families to say where they are. Detainees must be told where they're being transferred to and given time before that transfer to call their families. and the government must provide private rooms for counsel to meet with clients at Whipple during normal business hours and for four hours on weekends and holidays. Yeah, there are a couple of things in this order that really jumped out at me because they seem emblematic of where we are. The first is that Judge Brazel really dragged the government for saying that it would be too hard and too expensive to abide by the Constitution. So she says in the order, defendants allocated substantial resources to sending thousands of agents, meaning ICE and CBP agents, to Minnesota, detaining thousands of people and housing them in their facilities. Defendants cannot suddenly lack resources when it comes to protecting detainees' constitutional rights. Your failure to plan is not the court's emergency. Right. And more than that, I think this is the court saying that the emergency is entirely manufactured by DHS as an excuse to violate these immigrants' civil rights in ways that are so unpleasant that they'll agree to either, you know, what they euphemistically call self-deport or be deported simply to get out of these horrible illegal facilities. ICE is sitting on a $75 billion slush fund. It can afford to do anything it likes, including provide detainees with access to counsel. If it finds it that administratively difficult, then maybe it should detain fewer people. Or, as Judge Brazel puts it a bit more diplomatically than I would, the government suggests, with minimal explanation and even less evidence, that doing so, that is, providing due process, would result in chaos. The Constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights. Yeah, what really jumped out at me was this footnote. Judge Brazel said the court had anticipated a potential knowledge gap between counsel and its client and for that reason ordered someone from ICE with authority to bind operations in Minnesota to be present for the mediation preceding the hearing and for the hearing itself. Taria Rich, Deputy Field Officer Director for ICE in St. Paul, attended, but her presence did not appear to assist counsel in their ability to respond to the complaint and the motion. Man, where do you start? Yeah, so potential knowledge between counsel and its client. Okay, to be clear, counsel is the Justice Department and the client is the Department of Homeland Security. In the before times, both of those agencies at least claimed to be trying to follow the law. The DOJ would relay judicial orders to the appropriate agency. And those orders were filed. I mean, look, not all the time, you know, but most of the time. And if a lawyer for the government represented something to the court, that something was probably true. Even in civil cases where the DOJ was defending an agency action, they didn't just like say shit in court. And to be clear, we have talked about some of the most egregious political appointees at Maine Justice lying to judges faces, in particular, Drew Ensign. But I take your point. Most of the line prosecutors are not willing to look a judge in the eye and lie to their face. They just can't get true information from their client because their client is Donald Trump and his handpicked goons who have zero commitment to saying things that are factually correct, which has the effect of putting Department of Justice lawyers in the position of repeating their clients lies in court. And on top of that, the lawyers are the ones most closely at hand to discipline when court orders get ignored. Right. We've talked about Chief Judge Schiltz in the District of Minnesota listing that 96 times in January alone when the government ignored court orders in that district. Almost all of those were in habeas cases, by the way. That is, immigrants snatched out of the community and then stashed at Whipple until DHS could disappear them to Texas. We didn't cover that immigration court lawyer who'd been seconded to the U.S. attorney's office in Minnesota and then had this crash out in open court because she couldn't get DHS to follow court orders. That hearing was actually a show cause hearing as to why the government shouldn't be held in contempt for its failure to comply with all the habeas orders. Or if the court was going to hold somebody in contempt, who should that somebody be? Because clearly the lawyers, at least the line attorneys, are doing their best. The judge said basically like, whose fault is it that when we say let somebody out of detention and bring them back to Minnesota, it doesn't happen? And the answer to that is that DHS doesn't care about following the law or court orders. It's just happy to ignore DOJ and let the prosecutors deal with it in court, eventually act as a pain sponge with the judges. I think that's why Judge Brazel ordered, quote, someone from ICE with authority to bind operations in Minnesota to be present for the mediation preceding the hearing and for the hearing itself. What she's trying to do is short circuit that process that you just described and force Homeland Security to state on the record what it intends to do rather than sending in the Department of Justice with incomplete knowledge to put its own credibility on the line. And I have to say, that didn't work. Yeah. They sent Taria Rich, the deputy field office director for ICE in St. Paul, Minnesota. They showed up and simply said, no, we're not going to provide immigrants with access to counsel. That would be too hard. So screw you, Judge Brazel. Yeah. That's, I mean, that's not so far off of what she said. She said it would cause chaos to force DHS, to force ICE to allow immigrants at Whipple to meet with their counsel in private rooms. And like, you know, so what? Right. Your chaos does not override the U.S. Constitution, which is how you get a TRO and eventually a preliminary injunction, which is what happened. Yeah. OK, we will be back with our second case out of New York after this brief ad break. And we're back. OK, so our second case about the temporary, and you can hear the scare quotes, temporary detention is in New York. The case is captioned, Barco Mercado v. Nome, and it has to do with this temporary facility on the 10th floor at 26 Federal Plaza, often referred to as 26 FAT. So on September 17th, Judge Lewis Kaplan issued a preliminary injunction ordering DHS to provide basic safety and hygiene requirements for the detainees, institute maximum occupancy and medical care and access to counsel. And then on November 25th, the plaintiffs filed a motion for contempt and sanctions because they said DHS had made minor changes that fell far short of compliance with the TRO. There were still no toothbrushes or changes of clothes. There was not enough blankets. There was insufficient food and wholly inadequate access to counsel. Lawyers were calling and trying to speak to clients and being told that the next available slot to meet with their client was a week out. And often the client was deported by then. Yeah. The ask here is really interesting because the plaintiffs are clearly trying to leverage the government's obvious and defiant noncompliance into greater visibility into what's happening inside that building. They want Homeland Security to provide weekly logs saying exactly who is inside these holding rooms, including their A numbers, how long they've been there, plus a tally of how many attorney phone calls went out. They want someone from DHS to swear under oath every week that the government is complying with Judge Kaplan's order. And they want the right to inspect and photograph the facility, which I am all for it. But that's that's a big ask. Right. Right. DHS is fighting tooth and nail to keep out members of Congress. And they're not letting them take photographs in there either. So I think civilian access with photographs is, well, it will be a lot. They also want monetary sanctions, which I expect that one they're not going to get. But I totally agree with you that they're dragging this process out to maximize discovery because they want access to the facility. The more they know about what's going in there, the stronger the position they're going to be in. And, you know, it raises public awareness. So the parties here have jointly agreed to delay a hearing. But I must say, the signs for the government are not good. Let me read a little bit from one of Judge Lewis Kaplan's opinions. He says, It is well known that defendants have been extremely resistant to allowing outsiders access to the holdrooms at 26 Fed, even excluding members of Congress from conducting oversight visits, Putting to one side whether defendants resistance to such efforts suggests a desire to prevent their treatment of detainees from becoming public cough, cough, and the court does not at this juncture draw such an inference cough, cough. The inescapable fact is that defendants resistance to any public oversight leaves plaintiff with few means of getting hard evidence save discovery. Third, it bears mention that defendants, in responding to plaintiff's motion for a preliminary injunction, fell short of a full, complete, and candid disclosure of the relevant facts. Whether advertently or not, their factual submissions were incomplete and, in significant respects, misleading. Wow. This is a judge who trusts the government not at all, not the Department of Justice and certainly not the Department of Homeland Security. Wait for it. Oh. So this is from a local New York outlet called The City. It says, on Monday, Heather Gregorio, an attorney for Wang Hecker LLP, which is working with Make the Road New York, described a recent deposition of William Joyce, the deputy field office director of ICE's New York office. In it Joyce admitted that immigrants are being held on another floor at 26 Fed where ICE is not abiding by the judge rules During the deposition Joyce acknowledged that immigrants are being held on other floors of the building and that the judge preliminary injunction did not apply to the other floors in the agency interpretation Gregorio told Judge Kaplan. Judge Kaplan quickly turned to Jeffrey Osterreicher, the chief of the Civil Division for the U.S. Attorney's Office for the Southern District of New York, who was representing the Trump administration. Are they being held on other floors, Kaplan asked him. The short answer is yes, Yes, Osterreicher replied. Osterreicher went on to describe four additional holding rooms on the ninth floor of 26 Federal Plaza, which has never before been publicly acknowledged by ICE officials. He said people are generally held there for less than 12 hours and are often shifted back to the 10th floor as space becomes available. It is not my sense that it is overcrowded, Osterreicher said, adding that even though ICE didn't believe Kaplan's order applied there, many of the provisions of it were in place on that floor, like providing adequate food. You hear my. There you go. Like that is all the things. Right. That is Homeland Security defying quarter. You cannot say, oh, we thought this order only applied on the 10th floor and not in the secret space we've maintained on the ninth floor. Right. It is the hyper-technical parsing of laws and orders in a way that is absurd and, of course, in the government's favor while broadly ignoring the Constitution for everyone else. And, as you were highlighting, it is the Department of Justice having to face the judges, right? I do not envy Osterreicher here while, you know, Homeland Security just gets to craft these policies in a vacuum. I also have to say that notwithstanding that, I would not try any of that in front of Judge Kaplan. He has been on the bench since the late Cretaceous of 1994. I mean, squarely in old bull territory. Maybe shading into cantankerous old goat territory, if we're being honest. He is not, if you're listening, Judge Kaplan, not someone I would make mad if I could possibly avoid it. I mean, I think he's pretty clearly mad now. Agreed. OK, so for our final story, let's talk about all the ways that the Trump administration wants to interfere with the 2026 midterms to try and stave off what should be the crushing defeat that they ought to suffer. If we just ask people in a democracy, hey, do you like what the government is doing? The answer is overwhelmingly no, not at all. Yeah, let's talk about the kind of founding myth of this bullshit, which is that there are thousands or maybe millions of illegal aliens voting in U.S. elections. After Trump won the Electoral College vote in 2016 and lost the popular vote, Trump claimed that he actually won it if you deduct the millions of people who voted illegally. He said he won California, which is amazing. So Trump's number is off by millions of people. And as far as we can tell, the actual number of noncitizens who vote in federal elections is zero. Forty states have certified that. The Heritage Foundation, the OG kind of conservative sane washer, went looking for vote fraud. They compiled a database of election crimes over 20 years. They found 23 total cases of noncitizens voting in any election at any level. Republican Governor Brad Raffensperger in Georgia commissioned a study that found as many as 1,634 non-citizens attempted to register to vote, but literally every single one of them were flagged by the system. None made it through. So there are no illegal non-citizen voters. It's ridiculous. It is kind of amazing that this entire theory rests on millions of non-citizens risking jail time and deportation to do something that, you know, half the eligible Americans can't even be bothered to do. To be clear, non-citizens voting is a crime. 18 U.S.C. Section 611. It is punishable by up to a year in jail. And it is similarly illegal to claim to be a U.S. citizen when you're not, to lie on your voter registration application. And, of course, commission of any of those crimes, if you are not a citizen, is the basis for immediately beginning removal proceedings to deport you. Right. So people are not going to jail for that. Right. People are not getting deported. Non-citizen voting is not a thing. What is a thing is pretending that non-citizen voting means we need to safeguard our elections in ways that just so happen to disproportionately burden millions of people who would otherwise vote in ways that this administration would not like. Right. So last Wednesday, the House of Representatives voted 218 to 213 to pass S. 1383, the Save America Act. That was strictly party lines with just one defection Democrat, Henry Cuellar of Texas, the indicted and now pardoned felon. Although he didn't switch parties. So that was a good troll, sir. All right. We're going to break all of this down for you after our last ad break. unless you are a subscriber at patreon.com slash lawandchaospod or lawandchaospod.com, in which case you will not be having an ad break. Not today and not ever. And we're back. Okay. I don't want to be overly alarmist. I mean, there's a lot to be alarmed about. The Save America Act is almost certainly going to die in the Senate. A similar but less egregious version of the bill was introduced in 2025, and it didn't pass the Senate. So that's a good thing. But I think it's important to talk about the provisions in these bills to highlight the multiple fronts on which this administration is trying to undermine our democracy, really, at every stage of the process, right? Republicans want to make it harder to register to vote. They want to make it harder to carry out the active voting after you've registered. They're also trying to suppress the vote by intimidating state and local elections officials into trimming legitimate voters off their voter rolls and just in general by flooding the zone with misinformation. So it is a sustained assault on democracy from start to finish. OK, so let's start with voter registration, because most of our audience is from the United States. And so having to register to vote doesn't seem weird to you, but it is right. I mean, look, if you're a U.S. citizen, before you can vote, you have to opt in to this system and become a registered voter. And otherwise, you can't vote. And if you don't vote for several election cycles, states will purge you from the eligible voter registration rolls and force you to go through the process all over again if you want to vote in the future. If you show up at the wrong polling place, they don't let you vote or maybe they let you cast a provisional ballot. And the federal government does nothing to try and identify non-registered voters and sign them up. In fact, one of the reasons that Trump said that the 2020 election was stolen was because there was all of this concerted voter outreach. And he said, well, you know, allowing people to register to vote in the park introduces an element of fraud. So, you know, it doesn't count, which is crazy. No other democracy does it like that. Every other country takes an opt out approach. Right. You are registered to vote automatically. In fact, in several countries, universal voting is compulsory. Non-voting is a crime, sort of. I mean, not really one that's enforced. Yeah. But I think the larger point is that the baseline result of these structural choices that are already built into the system is that, as we see statistically, far fewer people vote in the United States in our elections than in other democracies. That makes our process much more susceptible to capture by, say, a political party that doesn't actually have the broad support of the people. For a long time, both of our political parties at least gave lip service to the idea that that that was a bad thing, that that higher voter turnout rates would be good. So in the early 1990s, as voter participation rates plummeted to their lowest in our nation's history, about half the eligible population for presidential elections and about a quarter for off-cycle non-presidential elections, Congress got together in bipartisan fashion and they passed the National Voter Registration Act of 1993. It was signed into law by President Clinton. And that's commonly known as the motor voter bill. Yeah. We talked about it on the show before. The whole point was obviously to make it easier for people to register to vote because you have to go to the DMV to get your driver's license and, you know, you're holding all of your documents there. So fine. The first major thing the law did was require every state to offer voter registration wherever they issue driver's licenses. That's 52 U.S.C. 20504. The second thing the bill did was provide a uniform mechanism for voter registration by mail, which has now been expanded to include online. That's 52 U.S.C. 20508. It creates a standard voter registration application form. All states are required to accept it. And it is very narrow. Yeah. And we should say the motor voter law worked. It still works today. Overall, voter registration rates are up 10 percent since its passage. Most people today register to vote either online using the 20508 form or at their local DMV. And that's all thanks to the motor voter law. That's where all three of my children I took to get their driver's licenses and they registered to vote originally. Yeah. And that brings us back to the SAVE Act. The first 26 pages of it are an effort to undermine both of those provisions in the motor voter law by requiring you to provide proof of citizenship in person to register to vote. And that proof of citizenship is defined particularly narrowly. It has to be either a Real ID compliant driver's license, which all states are now complying with it, but lots of older driver's licenses are not Real ID compliant. A passport, which less than half of Americans have, or your birth certificate. Yeah. And to be clear, real ID is a kind of a requirement imposed by the federal government because they said if you didn't have a real ID, you couldn't fly. Yeah. And they had to push it back. It was related to this. It was making it harder to get your driver's license because they wanted to push back on states who allow non-citizens to get driver's licenses. Right. Obviously, if you are getting your driver's license, you don't have a driver's license. I mean, at least the first time. And less than half of Americans have a passport. So I, like many Americans, my birth certificate and my driver's license do not match. So under this scheme, I guess I would have to bring my marriage license with me to vote. I mean, look, I have a real ID. I'm not stupid. But this is going to present specifically problems for American women who tend to take their husband's name. I can't imagine how a trans person who changed their name and gender ID marker is going to make this work. I mean, look, or I suppose if I were a trans person or a person who changed my name in some other non-marriage way, I could bring my documents. But I think that this is going to be, look, it's abusive to force people to out themselves if they want to vote. And it's going to be subject to abuse by bigoted registrars. And I think we should emphasize just how far this will. The League of Conservation Voters estimates that over 70 million people do not have a birth certificate that matches their ID. Most of them are in your category, Liz. But that's OK. The SAVE Act has you covered because it says that the states can accept your maiden name for voter registration if you also present with your voter application documentation that would constitute documentary proof of United States citizenship. i.e. your birth certificate, and you provide, and here I just want to quote from the bill directly, through a process established by the state, right? That means in the future, additional documentation as necessary to establish that the name on the documentation is a previous name of the applicant. So yeah, what that means is this bill passes, states have to invent a thing, and then you have to show up with your marriage license and whatever else the states ask for, or you don't get to register to vote. Yeah, it's interesting to me. I've had, I believe it was with the state bar, but it could have been for a passport renewal. They needed an original copy of my marriage license for which I had to go to the courthouse in Baltimore City and pay an extra $10 or whatever it was to get a certified copy of it. I think now I'm thinking about it. It was my passport. And it such a surtax on women which look for me I lived in the same city my whole life so it wasn that big a deal for me to go to the Baltimore City Courthouse and get my marriage license For a lot of people, though, who have moved around, that's not going to be so easy. Yeah. So the SAVE Act, in addition to all of those provisions, would also gut the register by mail provision of the motor voter law. So that current model form, 20508, that you talked about, Liz, that's the one that the federal government created. It requires you to attest that you are a citizen under penalty of perjury and subject to the criminal provisions that we've talked about. The SAVE Act says that affidavit isn't good enough. No state would be permitted to accept that model registration form without also requiring each voter to include a photocopy of or present that documentary proof of citizenship, right? A copy of that either real ID or their birth certificate. It's just designed to make that register by mail provision impossible. Right. And it's designed to make it harder to register to vote. Because when people do register to vote, Republicans lose. That's why they were so pissed about all of this voter outreach in 2020 and said that it invalidated the election result. But the SAVE Act doesn't stop there. Once you have registered to vote, the law will require you to provide and show ID whenever you show up to pass your vote, which is not legal right now. And if you want to vote by mail, subsection 303A2 says that the state or local official may not accept any ballot for any federal office unless you submit a copy of your ID or this complicated procedure states are supposed to develop where you sign an affidavit that you can't get a copy of your ID and you provide the last four digits of your social security number plus an affidavit from a whatever, you know, something TBD. That sounds suspiciously like the Pennsylvania law, which always, every cycle, winds up getting thousands of votes tossed because people forget to sign it in the right place or they don't date it or whatever, that they screw it up in ways that have nothing to do with the validity of their ballots. Yeah, I think that's an excellent comparison. And we're not done because the SAVE Act also requires states to purge non-citizens from its voter rolls. And that sounds bad, but I have to tell you this particular subsection is even more pernicious than the usual efforts, right? So what would become 52 U.S.C. Section 20507 subsection J4 requires every state to submit its voter rolls to the Department of Homeland Security through this completely borked system that is also confusingly called SAVE because I guess they only thought of like three acronyms. Anyway, the SAVE system is supposed to detect non-citizens. Its error rates are off the charts. Right. But look, even if it were 100 percent accurate and it is not close, the federal government cannot force states to turn over its voter rolls. Right. It's lost in court at every single turn when it's tried to do that. Right. And we've talked about all of that litigation, right? The Civil Rights Division under Harmeet Dillon is suing unsuccessfully all of these states to force them to turn over their unredacted voter rolls, including driver's license and social security numbers. And the courts have said, hell no. And here, this law would force the states to do just that. Yeah. OK. So those things that we've talked about, a lot of news sites have picked up on sounded the alarm on on some or all of these provisions. I want to flag another part of the Save Act that I think has not gotten a lot of attention. And I think this one is going to show up in future efforts to change the law. So the motor voter law has a provision that applies if a state doesn't let you register to vote at the DMV. That section is 52 U.S.C. section 20510. It's near the end. And so what happens is you bring your complaint to the attention of the chief election official of the state. Now, that's usually the secretary of state. Whoever runs is in charge of voting in the state. And then if the secretary of state doesn't fix the problem, let you register to vote within 90 days. Or if you are obstructed at all within 30 days of an election, you don't have to ask the secretary of state first. You can go immediately, sue the state and force them to let you register. So this provision is called a private right of action. It says, hey, if you're getting stonewalled by state officials, you can go into a court and vindicate your rights. It's a really, really good thing. And there's a really important provision in subsection C, which says that if you win, you can recover your reasonable attorney's fees, including your litigation expenses and the costs of bringing that lawsuit. That's not typical in the American system. Ordinarily in America, each side pays their own legal fees and costs. But that provision is there to incentivize lawyers to represent poor people who are denied the right to register to vote. Yeah, right. And maybe you can see where this is going. The SAVE Act would amend that Section 20510 to add, quote, including the act of an election official who registers an applicant to vote in an election for federal office who fails to present documentary proof of United States citizenship. So in other words, if this passes or a similar provision passes, then any person will be able to sue a state and get their attorney's fees paid for for the tort of registering someone to vote without the narrow documents that the law requires. And look, in practice, we know what that means. It means that Jacob Wohl and Project Veritas and that guy who faked that secret video supposedly showing all the Somali fraud in Minnesota, right? Like all of these right wing trolls are going to be incentivized to film poll workers, get in their face and threaten them with lawsuits if they register people to vote, which that turns the motor voter law completely on its head. Right. I mean, we've talked about this on the show. In fact, I think it was after the midterms in Georgia. They were so deluged, the registrars were so deluged with abusive information requests that they couldn't do anything else. They just spent all of their time responding to these requests. So if it's if you could just file a lawsuit against anybody, you can file a voter challenge against anybody. It will kind of allow bad actors to inject a lot of sludge into the system and slow it down. Yeah. And as we said, this act would require the state to submit their entire unredacted voter roll to the State Department so it could run it through this safe provision and kick out voters. Right. So, I mean, we have we've we haven't talked about it in a while, but there are all of these lawsuits about Doge aggregating all of the information data sets in in the federal government's possession with complete disregard for the Privacy Act and other statutory firewalls. firewalls. And what the SAVE Act envisions is feeding voter data into it and generating lists of voters to kick off the rolls, to disenfranchise. Incidentally, Alabama tried this with the similar program to what they're going to do, and it got enjoined because the error rate was fantastically high, right? It said all of these people that it flagged were non-citizens had become citizens in the interim and were still flagged as non-citizens and booted off. So Alabama tried this in 2024 and got enjoined. OK, so I don't think that this law is going to pass. But Donald Trump, because he just likes to say shit, said on social media this weekend, there will be voter ID for the midterm elections, whether approved by Congress or not. So what he's saying is, I don't care if you guys pass it. I'm going to magic it up now. OK, the president says a lot of shit and we mostly ignore it. I mean, he talked about shutting down bridges to Canada and he talked about capping interest rates and 50 year mortgages. And everybody's like, uh-huh, grandpa. OK, but this is kind of scary because we are talking about a person who did try and mount a coup when he lost. Yeah. And the act of having people think who may have family members who are particularly vulnerable. Oh, my gosh, I can't show up to vote. Like, that's the point, right? The misinformation is the deterrence. I guess we should say, although it should be straightforward, that that is not the law. The president cannot just unilaterally declare by fiat that there will be voter ID for the midterm elections. Article 1, Section 4 of the Constitution says that the times, places, and manner of holding elections for federal office shall be prescribed in each state. And then it adds a codicil that says Congress may at any time by law make or alter such regulations. So, in other words, the states set the baseline rules for who gets to vote in the federal elections. Congress and only Congress can override those state regulations to establish uniform rules for federal elections. And historically, Congress is at a very light touch in making those kinds of laws, right, because voting is up to the states, right? So the paradigmatic example, really the only one that I can come up with across history, is setting a national election day, right, saying every state is going to hold their elections on the same day. But otherwise, Congress has basically left running elections to the states. The important thing, though, however far Congress's power might extend, the president has no role in federal elections whatsoever. None. So no, Trump can't mandate voter ID for the midterms. but maybe he can make people think that he can do that and you know as we've said that that has its own suppression effect so we need to counteract that disinformation right and you've got steve bannon out there saying we're going to have ice around the polls come november and we're not going to sit here and allow you to steal the country again and like well that's some projection um sending ice or the military or federalized national guard units to the polls is flatly illegal. 18 U.S.C. Section 592 makes it a crime to send armed forces or federal law enforcement to any place where a general or special election is held unless such force be necessary to repel armed enemies of the United States. Section 593 prohibits interference in any election by the armed forces. And Section 594 makes it a crime to intimidate, threaten, or coerce any voter. Yeah. Those laws are very, very clear. And look, we don't want to be naive here, right? Like Trump and his cronies are going to try and intimidate voters. We are going to have to be vigilant across the board. That is at an individual level, engaging in protests. And that means structurally bringing lawsuits. And funding organizations. Yeah. Bring lawsuits. Absolutely donating to those organizations, donating time, donating money. I think we can protect the right to vote in the midterms, but we're going to have to fight for it. And it certainly does start by understanding what they're trying to cram through in the legislature, understanding just how terrible things like the SAVE Act are. Okay. That is going to do it for us today, unless you are a subscriber on our sub stack at LawnChaosPod.com or on Patreon at Patreon.com slash LawnChaosPod, in which case you will get an extended discussion of a district court injunction which prevents ICE from conducting raids in churches. And actually, Andrew, you seem to have a different take on this. I am for anything that obstructs ICE in any way whatsoever. But I got to tell you, I think the legal reasoning in this opinion is pretty sketchy. And, well, you know, you just have to listen. And while you're at that, you should check out Andrew's post that he wrote yesterday about the Brian Flores' lawsuit against the NFL, which the Second Circuit kicked back and said, we will not be throwing this into arbitration so the NFL doesn't get to do racist shit behind closed doors. They're going to have to litigate this or maybe they'll figure out a way to get out of it. I don't know, but they definitely got smacked down hard by the Second Circuit. Yeah, we get to see it. All right. For subscribers, we'll talk to you in a hot second. And for everyone else, that is going to do it for us. Thank you so much for hanging out. And we will be back Thursday with written content and on Friday with another podcast. Talk to you guys then. Law and Chaos Podcast is a production of Raise Upton Media, LLC. Is intended solely as entertainment, does not constitute legal advice, and does not form an attorney-client relationship. This show is researched and written by Liz Dye and produced by Bryce Blankenengel. Law and Chaos Podcast. Copyright Raise Upton Media, LLC. All rights reserved.