Ep 260 — The State of the Senate 2026 (feat. Joe Dye)

Law and Chaos

This episode of Law and Chaos examines the legal battle over Trump's executive order attempting to centralize control over mail-in ballots t

Key takeaways

• Trump's executive order to block mail-in ballots via the USPS is deemed legally unsound and practically unfeasible, relying on a dubious 'unmailable' category not recognized by Congress.
• Judge Indira Talwani is using the major questions doctrine to challenge the scope of presidential authority in this case, potentially shielding her ruling from Supreme Court reversal.

Main topics

• Trump's mail-in ballot executive order
• Legal challenges to federal election interference

Notable quotes

"The government was forced to argue that cremated remains and replica explosives are the only two examples of things we can refuse to deliver. That is the elephant."

"Congress does not hide elephants in mouse holes."

Conclusion

With legal challenges mounting and election outcomes hanging in the balance, this episode underscores

Transcript preview

Speaker 6 (0:00) Also, the GOP has just gone so off the rails for what the public wants there. There's a lot of the proverbial people who work at Lowe's or work at Bank of America or in Atlanta work at Coca-Cola who just really don't feel welcome in the Republican Party anymore. And I think with the Republicans nominating two election deniers against strong Democrats as is, it's really probably not the ideal thing to be doing. for them to be doing. And so I think that's probably it. Speaker 1 (0:42) Welcome to Law and Chaos, where the midterms are two months away. Trump is trying to ram through his mail-in ballot cancellation scheme, and Maria Bartiromo has left the building. We've got a lot to cover, so let's get after it. Speaker 1 (0:59) Happy Friday, Chaos Monkeys. I'm Liz Dye, and with me as always is Andrew Torres. Andrew, how are you? Speaker 5 (1:04) Hey, Liz. I am great. I will have to pour one out for the money, honey. How are you doing? Speaker 1 (1:12) I'm good. I'm looking forward to the weekend. I have a ton of things to do, work, social, family. I'm very much looking forward to it. Are you good? Speaker 5 (1:21) Yeah, I'm good. Speaker 1 (1:22) All right. Well, as we hinted on our last show, most of today will be a discussion of the upcoming midterms with our election law guru, Joe Dye, a.k.a. my son. I will not be on this interview because he's my kid. And I'm super proud of him. And I probably would just every other sentence say, oh, my God, you're so clever. It should be Speaker 5 (1:43) weird Speaker 1 (1:43) and Speaker 5 (1:43) unprofessional. No nepotism on this show, though. It's great. And we had a terrific interview. Well, Speaker 1 (1:48) Andrew and Joe recorded before Tuesday's blowout in Massachusetts, where Seth Moulton lost to incumbent Senator Ed Markey by almost 30. Yeah, in that Speaker 5 (1:57) Democratic primary. And as the parent of a queer kid, can I just say, don't let the doorknob hit you where the good Lord split you, Seth. Like, that guy ran an entire campaign based on kicking trans people who are already facing an existential danger from the Trump administration. So I, for one, could not be gladder to see him disappear from the national stage, hopefully forever. Speaker 1 (2:20) Hear, hear. Okay, so obviously, the big legal news story of today is a question of whether Trump is going to be able to give the post office the power to throw out mail-in ballots. President Trump issued an executive order telling the Department of Homeland Security to create a federal list of supposedly eligible voters and the U.S. Postal Service to develop an online portal where states were supposed to submit their mail-in voter lists. And then the post office will cross-check these results against the DHS list. And if there's not a match, the post office is... instructed to refuse to deliver those mail-in ballots. Speaker 5 (2:53) Which is crazily illegal. I want to emphasize eight states and the District of Columbia conduct what are essentially all mail-in elections. And those states are California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington State. You may also notice a certain political alignment to those jurisdictions. But that is... tens of millions of ballots. So in our last episode, 259, we talked about how this rule was not just crazily illegal, but totally impractical. Speaker 4 (3:25) And Speaker 5 (3:26) so there is a case. It is captioned League of Women Voters v. Trump. That is in the U.S. District Court for the District of Massachusetts. And in that case, a couple of months ago, Judge Indira Talwani enjoined the USPS from implementing that executive order and developing any kind of guidelines to throw out mail-in ballots. There's a lot of history in this case. We don't need to get into that right now. We discussed that in Episode 259. Go back and listen to that if you haven't. But for our purposes, the issue now. Essentially, is whether the Trump administration is going to be able to impose these totally impractical new requirements 60 days before an election, right when mail in ballots are supposed to be going out. And Judge Talwani has already blocked this thing twice. The only question, Liz, I think that you and I have after. Today's hearing is whether she's going to be able to do it in such a way that the Supreme Court's six conservative justices do not take their big Trump loving Sharpie to it and cross out everything that she's done. Speaker 1 (4:23) Yeah. So on Thursday, as we were recording this show, Judge Telwani held a hearing and you can see her in real time grappling with how to. Supreme Court proof this ruling. And so she's, you know, it looks like she's reaching towards something called the major questions doctrine, which is what the Supreme Court relied on to invalidate Trump's original AIPA tariffs. Speaker 5 (4:48) Right. The major questions doctrine was invented a few years ago by Chief Justice John Roberts as a means to ensure that no Democratic president was able to get anything done. So if... President Joe Biden wanted to, for example, forgive a bunch of student loans using his authority over the Department of Education. The conservative justices could say, no, no, that is too big a lift. It is a major question of economic and political significance. And in those major questions, if Congress did not explicitly say using the exact words, the president has the power to cancel student loans, then he can't do. Speaker 1 (5:25) Yes. So the classic aphorism comes from former Supreme Court Justice Antonin Scalia, who said that Congress does not hide elephants in mouse holes. So here the government is saying, well, 39 U.S.C. Section 404 lets the post office develop rules to provide for the disposition of undeliverable mail. And an ineligible ballot is a kind of undeliverable package, which is a pretty tiny mouse hole to pull out this elephant that will allow the government to refuse to deliver potentially tens of millions of ballots. Particularly Speaker 5 (5:55) since Speaker 1 (5:55) Congress has Speaker 5 (5:57) specifically defined what non-mailable matter means, right? And it includes things like hazardous materials, certain kinds of plants, master keys for cars, perfume samples. Batteries. Right, stuff like that. And obviously, votes are not. hazardous materials. They're not potentially destructive or, you know, they're not going to make an entire batch of letters smell weird. Right. Right. So the government was actually forced to argue that that no, no, we're not saying that these ballots that might go out are non mailable matters. Right. There's this legal distinction between non mailable that is governed by statute and does not cover ballots. They conceded that. And this thing they invented called. unmailable, which is whatever the executive branch, in this case, Donald Trump, says it is. And so the only two examples that the government to date in its briefing and that oral argument has been able to come up with to support this distinction are post office regulations that prohibit mailing cremated human and animal remains and regulations that prohibit mailing replica explosives. That is. fake bombs, right? So their argument is fake bombs aren't covered by the express congressional delegation because they're not actually hazardous. They don't really blow up. And we have this regulation and no one's ever challenged it. So therefore, it's kind of like a law ipso fatso. That means Congress must have intended to delegate to the USPS the right to refuse to deliver anything the president tells them not to. And that's the elephant. Speaker 1 (7:35) Yeah, I mean, and it's really silly elephant, right? Obviously, if you have something that looks like a bomb and things are going to get x-rayed, you know, it has the potential to cause a massive amount of destruction because they're going to like blow it up. They're going to get the bomb sniffing dogs in there, right? If they think it's in there. So this is, this is again, a terrible. But that's their argument, right? Aside from that, though, as we said, there's this issue of infeasibility because in the meantime, there was this whistleblower report earlier in the week that said the entire project, the back end of this, is basically cobbled together with duct tape and chat GPT. And no one from the post office or indeed the red states who are predictably yipping like trained seals to demand that, you know, Trump. force them to jump through this ridiculous hoop. Nobody can say in the defendant's side whether this ballot verification portal is even ready to go live tomorrow, September 4th, as you are listening to the show is when they hope to make it. So an hour after the hearing ended, the USPS belatedly submitted this three-page affidavit that said, we continue to make refinements to the portal, including consideration of changes needed in light of the TRO, the temporary restraining order. We anticipate being in a position to make the portal available to users for voluntary use sometime next week. So we think it's going to be ready. Speaker 5 (8:58) Judge Tawani said at the conclusion of oral argument that she was not going to rule from the bench. And that's because she would be issuing a preliminary injunction. Preliminary injunctions are immediately appealable. And obviously, the government is going to appeal it. So, Liz, I think it's fair to say that what we think that means is that she is. As we speak, writing an incredibly thorough written opinion that carefully goes through the law, the facts, dots every I, crosses every T, and forces the Supreme, you know, puts it to the choice, right, that says, are you going to swallow this enormous elephant about Congress having secretly delegated to the United States Postal Service and. to a future Democratic president, these massive powers that are nowhere in the statute or not? Are you going to hold the line? So we will see. Speaker 1 (9:50) Right. And whatever she says is going to be immediately, I suspect they'll even try and skip the First Circuit and go directly to the Supreme Court. They said as much in the hearing. And I guess in the future, probably by the time we are back for Tuesday's show, we will know how the Supreme Court. has reacted to this. Okay, we have a few other docket alerts we want to flag. First, some developments in the case of Christian Castro, the ICE agent who shot Minnesota man Julio Cesar Sosa Salis in January and then falsely claimed to have been attacked by Sosa Salis and another immigrant. The state of Minnesota recently charged Castro with assault and making a false police report because none of those things were true at all. And they issued this extradition warrant for Castro in Texas, where ICE had moved him to. Texas originally picked up Castro and held him in custody for 90 days. But Governor Greg Abbott refused to sign the extradition warrant. And so Castro was released last week. And there was a lot of concern that this guy would simply walk across the bridge to Mexico and Brownsville and never come back. It's not clear where he is right now. But ProPublica broke the news today that the feds have actually charged Castro with making false statements. Yeah. Speaker 5 (11:03) And my first thought when I saw the headline come across was that this was an attempt to head off the much more serious state charges, right, to seize federal control of the investigation. Then I read the ProPublica article. I'm not sure. I don't think that's right. The article says that Matthew Evans, who is the assistant U.S. attorney in Minnesota in charge of this case, sent a letter to Sosa Salisa's lawyers, that was the victim, that he had pressed very hard for a civil rights charge. That would be likely deprivation of rights under color of law, had gotten overruled by his superiors. I should say that. As of when we're recording this, the charges have not been unsealed, so we don't know. But in the meantime, the Associated Press has reported that Evans was fired and is now under investigation for obstruction of a grand jury probe, presumably because of this letter that leaked to ProPublica. Speaker 1 (11:57) Yeah, well, that'll do wonders for retention at the U.S. Attorney's Office in Minnesota, which has been basically denuded of staff. Speaker 5 (12:03) Right. Speaker 1 (12:04) I think I mean, the interesting thing to me here is that we had worried that Castro would just leave the country and the state of Minnesota is not capable of extraditing him to face charges. But the feds are right. And if they do have pending charges, I mean, this is quite interesting to me because we have not seen them charge any. of their own. They clearly refused to file a civil rights charge against him, but they charged him with something which actually kind of surprises me. And it's consonant with reports that there were investigations into Gregory Ravino. Remember, he called himself the like Lord Grand Puba High Commander, whatever the hell, Viceroy, whatever he called himself, who ran. Customs and Border Patrol in some of the most violent days of the immigration dragnet, which, you know, the dragnet is still upon us. It's just less violent and less out of control. Speaker 5 (12:57) And Bovino has been taken out. And Bovino has been taken Speaker 1 (12:59) out. There is reporting that he was under investigation for making false statements and courts have found that he made false statements. So I do wonder if this is going to be. You know, that the government will charge people for a relatively minor crime, but let them get away with visiting violence on the population instead, which would be amazing. Yeah. Speaker 5 (13:25) And I will say. A 1001 false statements charge for a first time offender carries zero to six months in prison. They are almost always non-custodial sentences. You get probation the first time around. But the fact that this isn't an overlap with the shooting charge makes it more difficult to obstruct the state's investigation. So we don't know and we will continue to monitor. Right on cue as we are recording this, Liz, the administration has filed an emergency request with the Supreme Court to block. the temporary restraining order issued by Judge Talwani. So I think your anticipation that they're going to run directly to the Supreme Court as soon as her preliminary injunction comes down is borne out by their past behavior. Speaker 1 (14:19) Right. They care not at all about procedure and they have no respect for the appellate process. Okay. And now for the law and chaos, doofus of the day, Maria Bartiromo. You Speaker 3 (14:29) doofus! Speaker 1 (14:31) So Fox Business put out a statement saying, effective today, Maria Bartiromo is no longer with Fox News Media. We thank Maria for her work over the last 12 and a half years and wish her all the best on her next chapter. Speaker 5 (14:43) Oh, no. Now I'll have to go back to never watching Fox Business. Yeah, Speaker 1 (14:49) I'm sure by the time you guys are listening to this, someone will have at least part of the inside story. Or maybe not. I mean, on the one hand. Speaker 5 (14:57) If you cost the network $787 million to settle a defamation suit because you, Maria Bartiromo, put Sidney Powell on the air to talk about Dominion voting systems stealing the election, and you knew damn well that Sidney Powell's source is a loon who thinks she's receiving tips from the universe when she hears wind in the trees. True statement from her affidavit, right? And also claims to have been murdered twice. Look, whatever you did to get fired. After that has got to be real bad. On the other hand, when Rupert Murdoch fired Tucker Carlson, people went looking for the, you know, one big thing that caused his firing. And eventually it turned out to just be years of annoyances. And one day Murdoch said, I had enough of that guy. Cut him loose. Yeah. Speaker 1 (15:46) The reporter who really. kind of got to the bottom of that was Brian Stelter. And I remember in Stelter's book, he compared his own termination from CNN to Carlson's firing from Fox. And he said, essentially, my bosses let me say goodbye on the air because they trusted me not to blow shit up. Again, I mean, obviously, it's a paraphrase. But Carlson did his show on a Friday or whatever. He went home for the weekend and he never came back because no one at Fox trusted him not to use his last broadcast to torch the network on his own airwaves. Right. And because there was that trust between them, Stelter said he was able to say goodbye. And then he was able to come back and work at the network again. He's the current chief media analyst. Bartiromo did her show this morning and then apparently right after it. they cut her loose. Within hours, she was out because clearly they did not trust her to do the last show and say goodbye appropriately any more than they trusted Carlson. Can you blame them? But I Speaker 5 (16:49) do still wonder, what Speaker 1 (16:52) was the Speaker 5 (16:52) straw that broke the camel's back? I mean, I know that multiple Fox hosts, including Bartiromo, had to read an on-air clarification after they had that jackass Kevin O'Leary on, and he stated, as fact that opposition to data centers was funded by the Chinese Communist Party. I Speaker 1 (17:09) mean, that could have been, you know, the straw. Who can even tell? But I do think there is a not insignificant possibility that we will see some litigation on this front. And, Speaker 2 (17:22) you know, what don't we all deserve it don't Speaker 1 (17:24) we Speaker 2 (17:24) deserve Speaker 1 (17:24) some pure litigation joy after the after lively versus baldoni settled before going to trial right we have you know elon musk suing open ai and open ai suing elon musk and those things are fun but i think that trial kind of petered out i mean Speaker 5 (17:43) Give us something. Speaker 1 (17:44) Give us Maria Bartiromo versus Rupert Murdoch. Just give me something. I Speaker 5 (17:50) want that as much as you do, but I am not entitling the segment Maria Bartiromo teaches a civil procedure. Speaker 1 (17:57) That's Speaker 5 (17:58) all Speaker 1 (17:58) I have to say on that. All right. Well, with that, let us go to the interview with Joe Dye after this brief ad break. Unless you are a subscriber at patreon.com slash lawnchaospod or lawnchaospod.com. In which case, no ads for you. Not today. Not Speaker 3 (18:12) ever. Speaker 5 (18:30) And to discuss the state of the Senate, we welcome back our polling expert, the chairman, founder of the Joe Dye Group, our man in Florida, Joe Dye. Joe, welcome back to the show. The Speaker 6 (18:41) chairman. That's quite an introduction. Speaker 5 (18:44) Are you not? Are you reporting to somebody else these days? I think the title. Speaker 6 (18:47) Well, I report to a lot of people, but I think the title is principal now. OK. Speaker 5 (18:51) All right. Chastisement taken. But we are here today to talk about the state of the Senate. I want to kind of run some framing stuff by you because you are. Much more enmeshed with the numbers and the nitty gritty on that. I think kind of the conventional wisdom is that the Democrats have a very good chance of retaking the House of Representatives somewhere in the 80 plus percent range. I see you nodding at me. I'm right there. If the Democrats retake the House of Representatives, that will give them, among other things, the ability to conduct oversight without President Trump's approval and possibly other things. Obviously, there is no situation under which Democrats will be able to pass legislation over the veto of President Trump. But retaking the Senate, I think, is really, really important because of. Judiciary appointments in particular, also, you know, confirming crazy any PAS office that requires the advice and consent of the Senate to be appointed. And, you know, if there is a Supreme Court vacancy in the next two years, I would very, very much like to have Democrats control the Senate and do to