Nevada Recall

Civil Rights Practice Group

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A current lawsuit in federal court in Nevada is endeavoring to stop a recall election for several Nevada Senators.  The lawsuit argues that recall elections necessarily violate Section 2 of the Voting Rights Act because racial and language minority Americans pay less attention to public issues and have a harder time participating in a second election, and therefore recall elections have a disparate statistical impact on racial and ethnic minorities. The Public Interest Legal Foundation joined the defendants to help Nevada and is arguing that the language minority provisions of the Voting Rights Act go impermissibly beyond Congressional powers to protect against racial discrimination in the 15th Amendment, and that the Voting Rights Act does not allow for a disparate impact analysis to establish liability.  

 

Featuring:

Christian Adams, General Counsel, Public Interest Legal Foundation, Election Law Center 

 

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Event Transcript

Automated:                       Welcome to the Federalist Society's Practice Group Podcast. The following podcast, hosted by the Federalist Society's Civil Rights Practice Group, was recorded on Monday, January 8th, 2018, during a live teleforum conference call, held exclusively for Federal Society members.

Wesley Hodges:                Welcome to the Federalist Society's Teleforum conference call. This afternoon's topic will be on the Nevada Recall Election lawsuit. My name is Wesley Hodges and I'm the Associate Director of Practice Groups at the Federal Society. As always, please note that all expressions of opinion are those of the expert on today's call. Today, we are fortunate to have with us Christian Adams, who is President and General Council at the Public Interest Legal Foundation. Uh, Christian will give his remarks right now and then we'll eventually move to an audience Q&A. Thank you for joining us, Christian. The floor is now yours.

Christian Adams:              Thank you for having me and thanks everybody for joining the teleforum, uh, involving, uh, a, a relatively fascinating issue out of what might seemingly be a, a quirky local issue and what we're talking about is the case of Luna v Cegavske, and apologies if I mispronounce that, but Secretary of State of Nevada, uh, even campaigns on, uh, uh, her name being just Barbara because of its difficult pronunciation. But nonetheless, this is an election law case ... (clears throat) And it is a challenge to Nevada's recall elections and what the context that led to this case is is a challenge to three ... Initially, three state senators. Control in the Nevada state senate is very, very close and ultimately the outcome of these recall elections would have the potential to flip control of the Nevada Senate from democrat to republican.

                                                So, recall, uh, efforts were made in Nevada, targeting three particular Senate districts. Under the Nevada constitution, uh, state law specifically authorizes a recall of any public officer if you file a notice of intent to recall, along with a petition signed by 25% of the voters who voted in the preceding election. So, in other words, if, if you want to recall any public official in Nevada, uh, the state law allows you to do that by filing, uh, first a notice and then getting a quarter of the people who voted in the previous election to sign on to it. So, it's a fairly, um, shall we say, uh, uh ... It encourages recalls, you might say. Nonetheless, it is the Nevada law and, uh, it's the law at issue in this case.

                                                So ... (clears throat) Uh, the notice of intent to recall was filed and, currently, there's a state proceeding involving the adequacy and sufficiency and eligibility of the signatures involved and we're not gonna talk about the state proceeding to say, uh, today, except to mention that it is occurring. What, what this teleforum is about is the federal case that has been filed, Luna v. C- Cegavske, in an effort to block the recall and the reason that the case is important is because it makes a variety of, of federal statutory claims that, uh, in my view, are rather novel, but more importantly, they're noticed because they implicate election laws nationwide, and what we have, uh, by, uh, the plaintiffs in this case, who are a number of voters from each of these Senate districts, in the case which is brought by the law firm of Perkins Coie, uh, which, uh, has brought a number of similar cases around the country.

                                                So, this is, this is not an isolated, uh, juris prudential strategy. This is taking place ... The same arguments are being made against voter identification laws, uh, against a variety of other election process laws around the country by the same law firm, and so far, these, these, uh, efforts have not met with a great deal of success, but h- Here we are in Nevada. What are the unique and novel claims being made? (clears throat) The plaintiff in this case, in Nevada, is arguing that the existence of a recall, a law that allows you to have a recall election, in this case, is a violation of the Voting Rights Act because having a recall election is racially discriminatory and where they get to this conclusion is largely, uh, in- It's in the complaint, but you can, you can read in the complaint where they say things such as, uh, 'the informational costs of learning the details of a special election, the time each voter must spend to protect their already cast vote, the economic burden of needing to be excused from work or school, the need to obtain transportation to the polling place, the need to stay on top of the issues in a recall election' ... All of these things have a racially discriminatory impact on minority voters.

                                                So, if ... (clears throat) If a, uh, similarly situation white voter and a similarly situated black voter are forced to go to, uh, vote twice, that they didn't expect to do when they voted in November, then it has a racially disparate impact on the minority voters. And so, they allege that the recall election procedures, uh, are a violation of the Federal Voting Rights Act, under section two. Now ... (clears throat) This, as far as I can tell, is the first time that a recall election, a state recall election, has been subject to this sort of challenge. Normally, these fights are in the area of signature challenges and, and so forth, but this is part of a larger nationwide litigation strategy to use arguments that a given, uh, election procedure that one party doesn't like is somehow racially discriminatory, uh, largely through a statistical analysis, disparate impacts, uh, you know, no claim, by the way, that, that minorities or [inaudible 00:06:30] minorities cannot vote in a recall election, but rather that it's just more difficult for them to vote because of socioeconomic conditions.

                                                For example, here's from the, uh, here's from the complain, paragraph 40. It says, "The costs of voting are already substantially higher for low income voters who are less likely to own homes and more frequently move from one residence to another." So, this sort of, uh, legal philosophy can be found throughout the complaint. Other allegations, like in paragraph 42, that say, "Disparities in educational attainment make it more difficult for minority voters to overcome the hyphened informational barriers to voting in an off-cycle special election, which garners less public attention for which they me- There may be more limited resources for voter outreach than in general elections." So, what the plaintiff is essentially arguing, that the unique nature of the recall violates federal civil rights statutes.

                                                Um, the posture of the case, as it stands right now, is there is essentially a stay of sorts, uh, where the, uh ... Frankly, it, it almost is a rightness argument that hasn't been made. Uh, there's a stay of sorts waiting for the outcome of the state certification procedures. In other words, let's sit back, uh, is the federal court's attitude, and see if, in fact, uh, the, the signatures are adequate and sufficient to move forward with the election. Uh, my organization, the Public Interest Legal Foundation, intervened successfully right now in the case to act as defendant interveners to assist the state of Nevada in developing a number of arguments that the state of Nevada is not making as a defense.

                                                Uh, among them are the fact ... Uh, or is the argument that, uh, the plaintiffs reliance on the language minority provisions of the Voting Rights Act, under section two, uh, is unconstitutional in this instance. In other words, uh, section two of the Voting Rights Act has a language minority provision. Not just race, but protects language minorities. This was passed in 1975 as an amendment to the 1965 Voting Rights Act and the defense that we're raising is that, uh, the language minority provisions cannot be extended to strike down a state recall election and adhere to constitutional limits, uh, under the Fifteenth Amendment, the enforcement power of the Fifteenth Amendment, that if a court were to do that, they would be going beyond the constitutional enforcement power of, of the Fifteenth Amendment and utilizing language minority provisions to strike down a state constitutional ... A state recall election.

                                                We're also alleging in our defense, again, a defense that the state is not making, that, uh, that the language minority provisions of the 1975 amendments are facially unconstitutional, that Congress has the power to, uh, legislate against racial discrimination, but whether or not you can speak English is not within the scope of the Fifteenth Amendment's, uh, bundle of protection, so that is not race. That is something else. Uh, it is not within Congress' power to upset the federalist balance, uh, regarding, uh, election control based on language minority status.

                                                Now, when I refer to the federalist balance, what am I referring to? I'm talking about the fact that states ... States are given power, under the Constitution, to run their own elections. This is the presumption of the Constitution that states have power over their own elections, absent a number of enumerated exceptions such as, of course, the Fifteenth Amendment's prohibition on racial discrimination, but whether or not, uh, a state recall election can be invalidated, uh, because it violates the language minority provisions of the s- Of section two, uh, we're arguing in our, uh, intervention defense that that is a facially unconstitutional provision. Um ... Because in 1975, Congress succeeded its authority, uh, to enforce the Fifteenth Amendment when it extended a two year ability to speak English or not, as opposed to racial discrimination.

                                                Um, lastly, and before we open it up for questions, the ... Of course, the plaintiffs make some other arguments. They claim that it's an undue burden under the Anderson Burdick test, the Fourteenth Amendment. They s- Claim that it violates the First Amendment, to have to, uh, require people to essentially vote twice. Uh, so you can see that ... Rather than being a quirky, uh, little, uh, Nevada election law dispute, that this lawsuit, uh, which, by the way, I have a number for you here. It's ca- In Nevada, it's case #2:17-2666. Uh, the- This case is actually an effort to constitutionalize, if you will, uh, what some would say are partisan efforts to both, uh, invalidate an election, but also to, to, uh ... To, to oppose that invalidation. In other words, that, that, um ... That partisan interest have, have utilized constitutional arguments to affect the political outcome and whether or not the Voting Rights Act was meant to be extended in that way is an open question, I think, for courts.

                                                It's a question that came up in the North Carolina, uh, voter ID and, and election integrity litigation. It came up in the Virginia voter ID litigation. The same batter of attempting to constitutionalize and turn basic election process issues into civil rights and, and racial discrimination issues is one that's not just taking place in Nevada, but is taking place across the country, and it has profound implications because it would allow federal courts, if successful, to really upset the balance that the founders envisioned for who should control their own elections. Uh, the founders wanted the states to control their own elections. In 1868, obviously, uh, there was a, a, a new, uh, provision of the Constitution that made an exception to that general rule if it involved racial discrimination. There's been some other ones. Presidential, uh, elections for 18 year olds and so forth, and for women. Uh, gender discrimination in elections for president and so forth.

                                                But, the balance and the presumptions remain intact. The states are still presumed to run their own elections, and so you have one side that's attempting to extend federal power and the state of Nevada, our group, other groups in this area, are attempting to oppose this expansion of federal power over state elections. So, with that, I will, uh, I will turn it over to any questions. Uh, I appreciate all the time, uh, that you have devoted to listening to me, uh, and I, uh, am opening up for questions now.

Wesley Hodges:                Thank you, Christian. Let's go ahead and move to audience questions. In a moment, you'll hear a prompt indication that the floor mode has been turned on. After that, to request the floor, enter the * key and then the # key on your telephone.

                                                While we wait for audience queue to build, um, Christian, you had already touched on this in your remarks, but uh, would you mind commenting for the audience just on, while this is, um ... This is a case happening in Nevada, what exac- What, um ... Where are we seeing this around the nation?

Christian Adams:              Right. Um, it- I think it was most obvious in the Virginia voter ID case. The same law firm, Perkins Coie, uh, which for those of you who don't know the firm, this is ... Some call it 'Hillary's law firm'. Um, but Marc Elias is a very, uh, good election lawyer who represents Hillary Clinton's campaign and other democratic, uh, party campaigns. Uh, and he has essentially developed this theory that, uh, section two of the Voting Rights Act can be used to invalidate state election laws, which have a, in his view, a detrimental impact on his partisan clients and ... Uh, so we saw it starkly in the Virginia voter ID case, but the, the court in the, in the district court opinion and was upheld by the fourth circuit. I think Judge Shedd wrote the opinion, which for those of you who know the fourth circuit should tell you what the opinion looks like, which ... Uh, has largely rejected, at least in the Virginia voter ID case, this effort to, uh, turn section two of the Voting Rights Act into a partisan weapon.

                                                I actually have a Law Review, uh, but I don't have it front of me, but it's called 'Transformation: Turning Section Two of the Voting Rights Act Into Something It Is Not', uh, that discusses this in far greater detail, uh, for those of you looking for, um, really down in the weeds analysis.

Wesley Hodges:                Thank you, Christian. Looks like we do have one question in the queue. Um, if you'd like to ask a question, enter the * key, then the # key on your telephone. Let's move to our first audience question.

Roger Clegg:                       Hi, Christian. Uh, this is Roger Clegg with The Center for Equal Opportunity and, uh, thank you very much for that great, uh, presentation and for the, the good work you're doing in Nevada and, uh, and elsewhere. Um ... I wanted to ask you to elaborate a little bit on, uh, on section two. I ... I, I heard you just, just say that you didn't want to get into the weeds too much, uh, but, um ... I- I'm gonna try to drag you in just, uh ...

Christian Adams:              (laughs) Thanks, Roger.

Roger Clegg:                       Just a little bit. Um ... For, you know, those, uh, who may be, you know, new to this area, um ... Everybody, you know, recognizes that section two, uh, at least makes it illegal to engage in intentional racial discrimination, as, as does the ... The, uh, the Constitution itself. Um, but ... When the Supreme Court ruled in, um, 1980 that the, the old version of section two, uh, was coextensive with the Constitution, that is that it didn't make anything illegal, um, that wasn't, um, also unconstitutional and that, therefore, you had to show, you know, intentional discrimination in order to, to show, uh, a section two violation. Congress overturned that, uh, with the, with the new language in section two. Um, the problem is that it's very hard to figure out exactly what Congress meant to do in section two. Uh, as you say, it, it seems unlikely that it simply intended to enact a straight disparate impact ban. Uh, there's just simply too many things that inevitably are going to have a disproportionate racial effects, but on the other hand, uh, it does seem pretty clear, uh, that they intended to make some things illegal, uh, under section two that are not always- That are not also, uh, unconstitutional.

                                                So ... Could you elaborate on, you know, where you think the, the line should be drawn, uh, between, uh, the, uh ... You know, in- B- Between acts that are, that are, uh, violations of, of, of section two ... You know, what, what does section two make illegal that, uh, that the Constitution doesn't?

Christian Adams:              Right, and, and Roger, this is, this is one ... You're right. This, this is a complicated question, but let me, let me sum up real quick. I think real world causality is the, is the touchstone that I use. In other words, a state election practice must have real world causality in impairing, uh, minority voting rights. Now, that doesn't mean vote denial necessarily. There could still be dilution with real world causality, and I talked about this in a large article, which is called 'Transformation', and that is, um ... Let's take, let's take voter ID. Is there real world causality that prevents minorities from going to the polls, uh, even if it is not, uh, the, the cau- You know, not, not, um ... Not the exact re- It's not a vote denial claim, but can they go get IDs or real world causality, real world causality? I think ...

                                                And the reason I say this is because if you look at the, the Supreme Court opinion Jingles, which is really the first and most important decision relating to section two from the Supreme Court, is Jingles three ... Again, this is getting in the weeds, but Jingles three focuses on real world causality, or minorities losing elections, largely at large elections in the context of Jingles, uh, in the context of districting, I should say. A- Are minorities losing elections because Jingles one satisfied, Jingles two satisfied, and the Senate factors that they discuss are basically met? Are they actually losing because you have at large districts as opposed to, uh, uh ... Uh, single member districts? And Jingles three laser focuses in on doing a statistical analysis of real world causality. And so, I think you have to have ...

                                                And, and ... Real world ca- Real world causality, where minorities are losing or, or somehow being im- Impaired in their interest in, in, in a real way is what bridges the gap between, uh, the pre-1982 world and the post-1982 world and allows you to not make section two a disparate impact law. So, in the case of Nevada that we talked about, uh, nobody's really being impaired from voting. I mean, that's the real problem the plaintiffs had, just like they have the same problem in the voter ID cases, that it's almost impossible to find somebody who can't get voter ID. Uh, but, you know, it's not always impossible to find people who lose at large elections, and I've done it in, in ... When we've had the Georgetown County case, the school board case there, Lake Park, Florida ... There are candidates who are losing at large elections, in large measure because of their race, and so I, I think that, uh ... I think that that's probably how you bridge the very complicated gap between the two.

Roger Clegg:                       Thank you very much, Christian, and you know, thanks again for your, your good work, uh, in Nevada and elsewhere and, uh, I- I'm gonna make a plug, also, for a paper that, uh, our mutual friend, Hans von Spakovsky, and I did, uh, for Heritage, the Heritage Foundation, on the issue of, of section two and disparate impact and ... And, uh, people can, can look that up as well and, um ... Um, I, I think, you know, your, your quite right to say that, you know, there, there simply has to be some limiting principle here. Um ...

Christian Adams:              I ...

Roger Clegg:                       Otherwise, uh, section two is, is gonna be used as ... Simply as a partisan weapon.

Christian Adams:              And let me plug that paper you just mention, and I'll tell you why it's so important and, and folks need to understand this. Re- Jingles two involves polarization coefficients. How much does one race vote one way and one race vote the other? Do they split their votes or do they act like a, a herd, a block? And Jingles two addresses that issue. Why is that important? Because black cohesion coefficients in the last ten years have skyrocketed. They're up around 95/94/96/97 percent, both in national and local elections, and as soon as voting behavior among African Americans reaches those levels of, of cohesion, the Voting Rights Act essentially becomes a partisan weapon if you accept the principle of disparate impact theory, and that's the danger is ... And that's, of course, what the plaintiffs are trying to do. So, if, if cohesion levels are that high and the law is a disparate impacts law, the Voting Rights Act of 1965 is no longer being used to protect ra- Against racial discrimination, but rather being used to advance democratic party interest.

Wesley Hodges:                Thank you, Roger, for your question. Let's move to the next audience question.

David Berge:                      Uh, this is David Berge in Atlanta, Georgia. Uh, I'm sitting here in what used to be a section five state and, given that that section is at least tabled for the time being, I'm wondering if some of these theories that you're talking about are a ... A- Are trying to be developed for potential challenges to the redistricting that we will have coming up in the next two to three years, uh, and to have some of these redistricting challenged under section two instead of under section five, which is what we in the South are used to.

Christian Adams:              David, I'm so glad you brought up section five because I probably neglected to do it in my presentation. Um, you are spot on. If you, if you ... If you were listening and you heard the description of the disparate impact theory, that any, you know, disparate harm against a particular lang- Uh, ra- Racial minority group triggers section two liability, you probably recognized the terminology, and the terminology was essentially borrowed from section five, which is, uh, you know, the pre-clearance provisions that affected 16 states until Shelby v Holder, and it basically is a hair trigger. It's a, you know, uh, there's an ever so slight of an impact against racial minorities and, therefore, the law's unco- You know, invalid.

                                                Now, the difference is the burden shift. There's no burden shift, at least not yet. Maybe that'll be the next complaint, but the, the ... There's no burden shift. In other words, defendants don't have to prove their innocence. Rather, plaintiffs, under section two, must prove their liability. Uh, so you're exactly right and, and if you read the Law Review article that I talked about, 'Transformation, um, Turning Section Two Of the Voting Rights Act Into Something It Is Not', I get into the origins of this insofar as the justice department, when I was there, had a very, um, shall we say, closed-door and relatively secretive ... I explain how secretive it was, to the extent that the Voting Section Chief didn't even know about it. Um, developing a post-Shelby strategy and I, I suggest, and so does a, a source in my article that I quote at length, suggests that this new theory of section two emerged out of, "What are we gonna do if the Supreme Court strikes down the pre-clearance obligations in Shelby v Holder?"

                                                And no sooner had they done that, that the Supreme Court had done that, that these cases start- Started getting filed around the country, trying to essentially turn section two into section five. Hence, the title of my Law Review article, 'Transformation'. Uh, and that's exactly what I think is happening, David, so it's a great question and thanks for asking it.

Wesley Hodges:                Thank you. Let's move to our next audience question.

Jack Park:                            Hey, Christian. Uh, it's Jack Park and, uh, thank you. Uh, I echo, uh, Roger and David's, um, thanks. Um, you referred to the Senate factors in your discussion and those come from a 1982, um, congressional hearing or congressional, uh, legislative report and they were, um, incorporated into Thornburg v Gingles in 1986 and were 30 years after the fact. How long are we gonna have to put up with, um, those factors, uh, given that y- Uh, one would think that we're making progress on a lot of things? Will we ever make enough progress to get- To jettison that whole inquiry?

Christian Adams:              Jack, that's a great question and it- It's even worse than you suggest because these things kinda just got grafted into the law that ... And you know, they were never passed by Congress, but yet they have become ... I mean, look at any of the complaints that get filed in section two, um, regarding redistricting, and every single one of them, you know, will, will fight this, and one thing I want to point out, for those of you who are defending these sorts of cases, one of the things I like to evangelize is use the Senate factors in your favor. In other words, develop countervailing, uh, evidence, uh, uh, of, of, like, responsiveness and, you know, official discrimination. Well, look, there's been ... We go out of our way to not officially discriminate and that's, that's something that I think defendants have not, in the past, at least in cases where I was a plaintiff, uh, have not been really even thinking about.

                                                So, you're right, Jack. The- This is a strange thing and if you haven't seen the Senate factors, check them out. Like, things like slating. If you have slating, it can weight against the defendant, and it's not even the defendant's slating. It's just slating as it exists in the natural environment. My favorite is racial appeals. Uh, racial appeals, uh, in campaigns. Well, you know, it's not the defendant making the racial appeal, but if the racial appeal exists that contributes to polarization and, and therefore, it's something that sort of aggravates the situation and, and makes it easier for a plaintiff to win a case. Look, I don't think Congress is ever gonna touch these things, certainly not this Congress. I almost don't want them to, in a way, because, um, you know, this is such a weird niche area that, you know, try to explain how to deal with the Senate factors.

                                                But, I think you have a great point, that, uh, socioeconomic conditions ... Look at what's happening around the country to, uh, a growing black middle class since the Senate factors were, were, uh, passed. Look at the internet! I mean, you know, educational limits. Everybody's walking around with a phone. I mean, information's at your fingertips. So, I think there's a lot of cultural and societal changes that have taken place since 1986 that really, uh, you know, call into the question the viability of the Senate factors as they were constituted 20 years ago, but more importantly, maybe some defendants will start to, uh, press the argument that they aren't quite as important as they were when they were decided to be relevant in 1986.

Jack Park:                            Thanks, Christian.

Wesley Hodges:                Thank you, Jack. It looks like we do have a couple more questions in the queue. Uh, if it's okay with you, Christian, we'll [inaudible 00:29:40].

Christian Adams:              Alrighty.

Speaker 6:                           Christian, this is, uh, a little bit off topic, but still related, and that's the- With respect to the recent dissolution of the voter registration panel. I just wondered if you have any thoughts on, on that, why it happened and, and, uh, how it was that the states got away with, uh, not responding to the request for public information about registration, um, of, of voters.

Christian Adams:              Well, uh ... Indeed, I ... I'm not sure what to say. I mean, I have a statement that, uh, is posted at, at Election Law Center. I have an article that I'm working on with somebody that should be in the newspaper tomorrow about this. Um, it's unfortunate. Uh, it's also not surprising, considering the commission had people on it who were dedicated to sabotaging the work of the commission, but again, that's a big far field from our, uh, discussion of Nevada, so I- I'd direct you to the, uh, Washington Examiner in the next couple days.

Speaker 6:                           Thank you.

Wesley Hodges:                Thank you for your question. Let's move to another audience question.

Linda:                                    Hi, Christian. This is Linda [inaudible 00:30:44] from Philadelphia.

Christian Adams:              Philadelphia, Pennsylvania?

Linda:                                    Yes. Christian, um, I'm wondering if, uh ... Any of the organizations that [inaudible 00:30:52] represent minorities and the disadvantaged have picked up on the fact that these plaintiffs are being portrayed in a way that is offensive and patronizing and insulting and really as second-class citizens completely incapable of making their own voting decisions, and I'm asking this especially in light of what you just said about, um ... You know, that now we have the widespread dissemination of information via cell phones and it's really, um, available to everybody.

Christian Adams:              You know, you would think that the answer to that would be 'yes', the, the, the, uh ... The civil rights groups and so forth, the usual folks, are very offended by this, but I will tell you, Linda, if- All you need to do is look at the North Carolina voter ID litigation. (laughs) I think it was Charles Stewart from MIT ... I might be wrong about that, but I think it was him ... He wrote an [inaudible 00:31:36] report and provided testimony that the plaintiffs put [inaudible 00:31:39], right? The civil rights groups themselves hired an expert that said black voters were, quote, 'less sophisticated' ... That's literally his terminology. Uh, I think it was Charles Stewart. I, I reserve the right to be wrong about that. I wrote an article about it when it happened. Uh, that black voters are less sophisticated, therefore, they don't know how to get voter ID, and it might've been the Texas case also, where you had similar, uh, expert testimony from civil rights groups, experts, saying that, that minorities were not capable of navigating the normal, uh, procedures of life. I mean, there's even been some briefs that go so far as to, uh, argue that it's more difficult, uh, for them to go and, and vote. I mean, that they just somehow don't have these capabilities like, like Caucasians do.

                                                So, I agree with you. It's condescending. Uh, it is, uh, a, a very unfortunate, uh, strategy in court. Unfortunately, it's a strategy that is fueled by a whole infrastructure of academics and other, you know, interest groups who, who, you know, have pushed this orthodoxy. So, I, I think it's one that unfortunately works, uh, and is ... Has a receptive audience. So, no, there's no hip- There's no shame, uh, or reluctance to employ these, uh, tactics, I don't think.

Linda:                                    Okay, thanks.

Wesley Hodges:                Thank you for your question, Linda. Christian, are there any closing remarks you'd like to make before we finish the call today?

Christian Adams:              No, I ... Uh, thanks for all the questions. Uh, extremely good ones. I, I, I ... In just sitting here, the Senate factors issue, I would just note that, look, the Senate factors can be a defendant's friend. Uh, a plaintiff can't win on Jingles alone. Uh, he needs, uh, uh ... Or she needs more than just Jingles. So, don't forget, while the Senate factors are a headache, they can be your friend. Um, so with that, I thank everybody for listening and, and, uh, thanks for paying attention to these issues.

Wesley Hodges:                Well, on behalf of The Federalist Society, I'd like to thank our speaker for the benefit of his valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us today. This call is now adjourned.

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