John Tsarpalas: Today on Commonwealthy, I talk with long time friend John Fogarty, an election law attorney who is actually based in Chicago. Can you image that? His job is keep elections fair and honest in Chicago. Now he is doing a pretty good job despite the overwhelming odds.
I have known John a long time. He is just a good man. So we are going to talk about a lot of things today. We’ve got a few war stories in there. And quite frankly, it is just always good to talk to John. This is Commonwealthy #57, Practical Election Law Insights for the Candidate.
This morning I am joined by John Fogarty, friend and election law attorney. John and I have had some fun out there in the world of Illinois politics.
John Fogarty: And the haustings.
John Tsarpalas: That’s for sure. I thought I would start out with a big, broad question.
John Fogarty: Sure.
John Tsarpalas: What does an election law attorney usually do for its clients?
John Fogarty: My sort of range of services consists primarily of ballot access. That is what most people come to me for. How to get on the ballot, how many signatures you need, where to file them, how to file them, etc. Trying to kick another guy off the ballot.
John Tsarpalas: Right. And we are going to talk about that because you and I have done a lot of that together.
John Fogarty: Yes, which is not fun. Campaign finance.
John Tsarpalas: You can say that, but I am always happy when it happens and I win.
John Fogarty: Campaign finance I do a lot of on the state and federal levels. So we advise in that way. PACs, corporations, not-for-profits. Basically anybody who wants to participate in the electoral process here in Illinois unfortunately needs counsel. The laws are such that they affect almost everything that you do or you might want to do and counsel is necessary.
John Tsarpalas: Right. And you are a licensed Illinois attorney. I know this podcast is nationwide.
John Fogarty: That’s right.
John Tsarpalas: However, you also do federal candidates.
John Fogarty: Yes, I do.
John Tsarpalas: And handle BICRA, which is a nightmare in my book.
John Fogarty: It is a nightmare. In addition, I represent most of our congressional delegation here in Illinois in various ways. And for some of them, I advise on their federal campaign finance. In addition, I am the Illinois state party’s general council where you and I met so many years ago.
John Tsarpalas: Where we met.
John Fogarty: As you know, the federal laws that apply to state party fundraising is difficult to navigate. So I do a lot with that also.
John Tsarpalas: Yeah, there is that whole segregation of keeping the federal money separate from the state money.
John Fogarty: That’s right.
John Tsarpalas: And there’s different levels. And state parties are allowed different amounts.
John Fogarty: Yeah, yeah, yeah.
John Tsarpalas: Let’s jump in to the local candidate.
John Fogarty: You got it.
John Tsarpalas: They get themselves on the ballot. We are going to start there. Well, maybe we won’t start there. They file their petitions. Now not every state has that, but here in Illinois we have the petition process. And I know I mentioned in previous podcasts, but I have not gone into real detail, that I will look at petitions as a campaign manager or coach or whatever to a candidate.
I will look for the following and that is: there is a lot of scribbling and I can’t read it. What we do is we sit down and usually find some volunteers. We usually pull all the petitions and then we try looking up to see if they are registered in district. Often, because the districts are so gerrymandered, people don’t know if they are in district or not. You often find a lot of people who sign a petition for a district that they are not living in.
John Fogarty: Absolutely.
John Tsarpalas: And they don’t really know; it’s not their fault. But that disqualifies that signature if you go through the process.
John Fogarty: That’s right.
John Tsarpalas: So that’s number one. Number two, I’ve seen petitions where it looked like somebody signed them all.
John Fogarty: Yes.
John Tsarpalas: You get into the handwriting analysis there.
John Fogarty: Oh, yeah.
John Tsarpalas: Okay. So what I do is take, and say somebody needs five hundred valid signatures and they have six hundred or eight hundred. I go through and I try to figure out how many I think are invalid or might have a problem. I indicate them. I mark up copies of it. And then I call you.
John Fogarty: That’s right.
John Tsarpalas: We turn it over to you. What happens at that point?
John Fogarty: Actually I think you and I talk even before you engage in all of that because you would want to make sure that you were looking for all of the things that were deposited facts.
John Tsarpalas: Right.
John Fogarty: I create a sheet for you and you do it.
John Tsarpalas: Tell me a few more possibilities, too.
John Fogarty: You’ve named-
John Tsarpalas: The big ones.
John Fogarty: – the big ones, the major ones. What you’d also do is (and this is pertinent to Illinois probably more than other states) take a look at all of the circulators. You might divide up the petitions by circulators and look at the dates of notarization for all of those circulators. That might tell you something as well.
A couple of cycles ago I had a case where we were contesting a statewide candidate. We took a look at all of this gentleman’s circulators. We divided them up and looked. It appeared, based on the dates of the notarizations of the circulars affidavit, that one particular gentleman was collecting hundreds of signatures from Quincy to Taylorville to Romeoville, which are different corners of the state, almost simultaneously based on the dates.
John Tsarpalas: The same guy? Same circulator?
John Fogarty: Yeah.
John Tsarpalas: Yeah, how can you drive that far?
John Fogarty: Exactly. So it became clear that he was not the true circulator of those petitions, which is part of the law in Illinois. Once we got underneath that fact, we were able to disqualify all of the petitions he submitted. That was over four thousand.
John Tsarpalas: Wow.
John Fogarty: So there are different things you can look at if you’ve been doing it as long as you and I have.
John Tsarpalas: Well, it is just logical. You just think about it.
John Fogarty: Yeah. That’s right.
John Tsarpalas: You think about it logically and you pick it apart.
John Fogarty: That’s exactly right.
John Tsarpalas: You look at it from a bunch of different angles.
John Fogarty: It helps if you’ve done it many times yourself also.
John Tsarpalas: Right.
John Fogarty: If you’d had a lot of practice getting people on the ballot, you kind of know what makes sense and what doesn’t.
John Tsarpalas: Right. So you get a bunch of volunteers together and you have them help look things up for you, to look at each name and see if they can read it, figure out if the address is valid, etc. So then you go the board of elections. You file. And then people sit down with someone from the board. Someone shows up from each candidate.
John Fogarty: That’s right.
John Tsarpalas: And they look at each signature one at a time and see if it is good or not.
John Fogarty: That’s right.
John Tsarpalas: And if it looks fine, then fine; they move on and that is a signature. If not, they register a protest on that signature.
John Fogarty: That’s right. Illinois has a situation whereby you file an objection, as you mentioned, which is akin to filling a complaint in any other type of a legal setting. But then the contents of the objection are litigated piece by piece. That includes every signature where you’ve said, ‘This signature is not genuine” or “This person’s not registered.” The board of election does vet whether or not that allegation has merit or not.
But in that vetting, each side (the candidate and the objector) has the opportunity to have watchers or volunteers who can object to the board of election’s call on whether it is a good signature or not. That takes you to another level where you can provide evidence.
John Tsarpalas: Right. They can go out and get affidavits from the person that signed the petition, etc. I have been down that chasing those myself.
John Fogarty: That’s right. So it is quite an involved process.
John Tsarpalas: Right. And it comes down to the end that there is finally a ruling by the board of elections. And then there is some final wrap up paperwork that you handle that I have never been involved in. Thank goodness you are doing that because that’s not my thing! And then either they are on the ballot or they are not.
John Fogarty: That is it. Right. That is it. After all of the issues that made have been alleged or litigated out, the person either has enough signatures or not enough signatures. Or there is some other type of validity question. It might be the objections are a residency case, which can happen. You would litigate this person’s residency. Do they live where they say that they live? That can hairy.
John Tsarpalas: Yeah, that gets hairy in Illinois. We won’t get into our mayor.
John Fogarty: Yeah, our mayor’s office is two blocks from here. Our advice here in Illinois: always keep a wedding dress if your basement.
John Tsarpalas: There you go. That tells you where you live. That is how they decided that one.
John Fogarty: So the electoral board makes their decision. That is akin to an administrative finding, dealable to a circuit court, state court, and then up through the appellate court after that.
John Tsarpalas: Okay. So then everyone is on the ballot and they are off to the races.
John Fogarty: Yes.
John Tsarpalas: You probably help the treasurer get set up on filing the proper paperwork, that kind of thing, a little bit. Maybe not. Most of that is pretty self-explanatory on board of elections website.
John Fogarty: That’s right. It is, but often we advise on that.
John Tsarpalas: Okay. And does anything usually pop up along the way during the course of campaigns?
John Fogarty: It sort of depends on the type of campaigns. Always I get questions on conduct at polling places. These people are passing out fliers.
John Tsarpalas: Yeah, on Election Day.
John Fogarty: And now with early voting, it is even earlier. But those are kind of run of the mill. The more sort of high level, highly contested campaigns I will also approve mail, radio, and TV, looking for proper disclaimers for starters. And then secondly, avoiding any possibility of my client getting sued for deformation.
And in some cases, we will offensively try to get ads yanked from TV or radio because they do contain assertions that –
John Tsarpalas: Are untrue.
John Fogarty: Yeah.
John Tsarpalas: Okay.
John Fogarty: Defamatory, yeah.
John Tsarpalas: Yeah, I do remember with the state party that all of our mail before it went out how to go before the attorney.
John Fogarty: Right.
John Tsarpalas: It was a long process of people signing off. And then everyone is in a hurry to get it out. Gosh, I don’t miss that. So I understand. So here is something I’ve never been clear on.
John Fogarty: Alright.
John Tsarpalas: Election night in a close election, but you are losing. Does a concession speech mean you have given up and you’ve thrown in the towel? Or does it actually matter what the vote is?
John Fogarty: It matters what the vote is. And I think the idea of whether you give a concession speech or not is a political question. You can give a concession speech-
John Tsarpalas: And still win?
John Fogarty: Yeah.
John Tsarpalas: Okay. So you haven’t messed up when it looks like you are losing and you make the concession call and speech. And then the next morning it is, “Oh, they found all of these votes for me. Wow!”
John Fogarty: That’s right. With so much absentee balloting occurring now and with same day registration occurring, I think-
John Tsarpalas: You can lose track of what your vote is going to be.
John Fogarty: Yeah. You have to be really careful about conceding because there is so much that is still out there on Election Night. Pat Quinn, former governor of Illinois, took some heat in 2014 after he lost to Governor Rauner obviously. But he did not concede on that night. He said, “I want to wait for the ballots to be counted.”
A lot of people were crowing and saying, “Oh, you will never catch up.” And while that is true, there were so many ballots out still. Even as the opposing party’s attorney, I couldn’t fault him for that at all.
John Tsarpalas: Okay. Yeah, that makes sense.
John Fogarty: Yeah.
John Tsarpalas: So then, you are in a very close race. How do you decide the recount situation? Is it just a matter of how close it is and what you think might have gone wrong?
John Fogarty: Yeah.
John Tsarpalas: And ballots that still be outstanding in the mail and overseas ballots and all of that kind of stuff.
John Fogarty: Yeah, all of that stuff. You know, or your campaign should keep track of who has requested an absentee ballot in your area. On election night, depending on the efficiency of your county clerk or the election authority, you should know how many people have registered to vote on that day and have cast their ballots.
You should know if there are enough ballots sort of outstanding on election night to put you within striking distance of winning. You’d have to file a recount obviously or petition for recount. But first it is just numerically. You’ll make certain considerations.
Building up to election night, if you have the luxury of bat and money, you have precincts who are poll watchers. They are observing. If you are highly organized, you will have networked with the election judges in your district.
So you will have an idea of the sorts of things that went wrong on election day and always goes wrong on election day. And whether or not those errors were enough to result in ballots that were mistakenly cast or people were mistakenly turned away to flip the election.
Recounts are much, much less likely to get recounts now because so much is electronic. So much is the optical scan.
John Tsarpalas: So the count isn’t wrong usually.
John Fogarty: Rarely. No more hanging chads.
John Tsarpalas: Right.
John Fogarty: And in addition, let’s say you are behind by a hundred votes on election night and there let’s say a thousand absentee ballots that are out on election night. As those come in, you are going to see them come in almost always with votes that are the same proportion as the votes voted on election day.
John Tsarpalas: That is interesting.
John Fogarty: So you are watching. The margin isn’t narrowing. It does depend also. If you are talking about a statewide race and all of the ballots that are out are from Chicago, if you are Republican, that doesn’t sound like good news.
John Tsarpalas: Right.
John Fogarty: So it does sort of depend where they are from.
John Tsarpalas: Okay. I think everyone needs to have a relationship with an election law attorney when you are running. Early on, have them review your paperwork, review your petition before you start circulating it, and help you get filed.
And then, in most cases in smaller races, you are not going to need an attorney. Who knows? You might not need them again. But you have a relationship. You have someone to call when, “Oh my gosh, I lost by ten votes. I want a recount!” You’ve got someone you can pick up the phone who is going to talk to you.
So let’s talk a little bit about that relationship. Should they sort of check in periodically throughout a campaign with you? How does that best work? Best work! And then how can you afford work?
John Fogarty: So often in my experience, the relationship I’d say fifty percent ends after I get the person on the ballot or I remove their opponent. The better relationships, the longer term folks, always call with different questions.
John Tsarpalas: There is always campaign finance law questions that you need an answer on.
John Fogarty: Yup. There is always that. And there are election day operations also.
John Tsarpalas: Yeah.
John Fogarty: Voting, at least in Illinois, is really complex.
John Tsarpalas: Complex is a good word. I like to say out of control. Because you have it coming at you with the same day registration.
John Fogarty: And that is only in counties of over a hundred thousand.
John Tsarpalas: Right.
John Fogarty: It’s crazy. It really is. Forty days of early voting. Forty days?!? Didn’t Moses wander the desert for forty days?
John Tsarpalas: Yeah. And he came back with some wisdom. I’m still lost.
John Fogarty: That is where the stories diverge.
John Tsarpalas: Exactly.
John Fogarty: So there are a lot of questions about that. And in addition, having done this as long as I have now, I have relationships with the election authorities. So that is useful as well. Something is going odd in Chicago-
John Tsarpalas: You know the board and who to talk to. Okay. What can candidates do in the area prevention of fraud? I think it is about election judges, polling watchers, and having people there. I talked about that in a previous podcast that I did called election judges and poll watchers.
John Fogarty: Oh, wow. Okay.
John Tsarpalas: And I’ve also done one called just vote fraud, where I talk about nursing home voting. And you and I have been down that road together. So let’s talk a little bit about your nursing home horror stories.
John Fogarty: Oh, my goodness. It is hard to know where to begin. The ounce of prevention is really having enough volunteers to be your eyes and ears. A lot of goes wrong on election day in the various types of voting we have. Some of it is intentional; some of it is not. Some of it is just incompetence, a rank in incompetence that you wouldn’t believe.
But if you have people who are observing, you are far less likely to suffer the intentional stuff. As for nursing homes, that is unfortunately where we see some of the most egregious types of vote fraud frankly. It is perpetrated by people who are in incentivized to turn out votes for a certain candidate or a certain party. These folks run precincts where nursing homes exist or are the nursing home workers. They flat out take advantage of people who are not with it.
John Tsarpalas: Right.
John Fogarty: They’ve been in a nursing home. They think, “Eisenhower is running again.” And it is sad frankly.
John Tsarpalas: But they do have a vote and they have a right to an honest vote.
John Fogarty: They do. You are exactly right. So it is a very, very fine line. I don’t mean to say that folks in nursing homes should not vote. And I don’t mean to cast all nursing homes in the same light. But I do mean to say that these situations present unique opportunities for wholesale fraud.
I’ll give you at least one of my examples. This occurred years ago, I think back in the 2010 cycle. I was watching a nursing home that was to vote on the Saturday morning before the Tuesday general election.
John Tsarpalas: Right.
John Fogarty: This was a small nursing home on the south side of Chicago. Not a nice neighborhood at all. It was a poor neighborhood. As a result, this nursing home itself was quite run down. You know, no signage. You wouldn’t know it as a nursing home facility driving by.
The voting was to begin at 9 am. I arrived at 9:08. I remember that because of the events that followed. I knock on the door to get into the polling place. The door is locked. So I thought, ‘Okay, that is unusual.”
I call in and I say, “Hey, I am a poll watcher for a [it was a Republican gubernatorial candidate].” And they were like, “Wow, we’ve never had one of those before.” I said, “Well, okay, here I am.” So I walk in. The election workers are just wrapping up.
John Tsarpalas: They are done already.
John Fogarty: They are done in eight minutes.
John Tsarpalas: Eight minutes afterwards.
John Fogarty: Fifteen ballots. A person of average or even high capabilities is not going to get through a ballot like that. So they simply came, they set up shop, they voted for everybody in the precinct, and then they were wrapping up.
These folks in this nursing home, one of them came and spoke with me. Bless her heart; she could barely speak. She was just not there capability wise. These folks who had just voted all of these fifteen ballots, I challenged them. I said, “There is no way you ran fifteen people through here. It is only 9:08.” They said, “Look, the staff here really knows their residents.” Yeah, right.
John Tsarpalas: As I roll my eyes.
John Fogarty: Exactly. Exactly. It got chipper from there. That is the sort of thing that can occur. And so the moral of the story, be there to watch. Be there on time.
John Tsarpalas: Yes. I didn’t want to point that out.
John Fogarty: Exactly!
John Tsarpalas: Be there early. I suggest beforehand.
John Fogarty: Yeah, be there early. And in fairness to myself-
John Tsarpalas: You probably were lost trying to find it.
John Fogarty: Well, no. I drove past it twice.
John Tsarpalas: You couldn’t see it.
John Fogarty: Yeah. I called to ask like, “Is this the right?” I thought it was an error. Then finally I did see the two little cones outside that election workers put up.
John Tsarpalas: Oh, wow.
John Fogarty: So, at any rate.
John Tsarpalas: There you go.
John Fogarty: But be early
John Tsarpalas: Be early. Any advice for nonpartisan races? Because 2017 is coming at that is all nonpartisan.
John Fogarty: It is.
John Tsarpalas: And this podcast is for people with local elections. There are a lot of nonpartisan happening out of there. I still think fraud happens, especially here where nonpartisan still doesn’t mean you aren’t a Democrat or a Republican. But it does happen.
John Fogarty: Yeah, I do think it happens.
John Tsarpalas: And I also am worried and I am seeing this with friends in other states, referendums. There is a lot of fraud for referendums that are putting a cap on taxes or things like that, where it is going to hurt someone’s pocketbook. There is a lot of fraud happening.
John Fogarty: Yeah.
John Tsarpalas: So I like to think about if it is any different or if it is still the same concepts. You still have to get poll watchers. You still have to get judges. You have to prevent and be out there.
John Fogarty: Yeah, same concepts.
John Tsarpalas: Right.
John Fogarty: For both ways, yeah. And some municipalities have a rich history of voter fraud or intimidation.
John Tsarpalas: Yeah, we live in one of those, don’t we?
John Fogarty: Yeah. We are here in the city of Chicago.
John Tsarpalas: Where even the dead vote twice. That’s the old saying and it does happen.
John Fogarty: That’s right.
John Tsarpalas: Wow. And I would also like to make a plea for people to step up to be election judges and to go into some of those areas where we have no balance. Here in Chicago, there are many precincts that go without a Republican judge.
John Fogarty: That is right.
John Tsarpalas: They are just not used to it. And it can prevent a lot.
John Fogarty: Oh, without a doubt.
John Tsarpalas: I mean, years ago there were precincts in Chicago (I don’t know if this is still happening) that would have more than one hundred percent turnout. That is because no one was there to watch it, to balance it.
John Fogarty: You are exactly right. A big focus of what we did with state party and Rauner’s gubernatorial campaign was to focus on election judges in Chicago because you are right. The fact is in many of these precincts, there are not sort of bonafide Republicans who will be the other half of the ballots.
And when everybody is on the same team, you are going to see problems. I can tell you in 2012 there were two precincts in sort of the East St. Louis area and one in Chicago that voted a hundred percent turnout.
John Tsarpalas: That’s not right.
John Fogarty: So right.
John Tsarpalas: How does that happen?
John Fogarty: Well, and that happens because (and the only way that it can happen) at the end of the night, there are ballots left unvoted and they voted them. Really, reasonably it doesn’t happen any other way. But there were many precincts that turned out ninety-five plus percent.
John Tsarpalas: That’s still crazy.
John Fogarty: Yeah. That is just outside of what the human experience is. And so in a lot of those places, that is where you want to have poll watchers if you can’t have election judges. The election authorizes have a lot of leeway over how they assign election judges generally.
The statue does require for there to be a split between the two leading parties. But how assignments are actually doled out, how information is actually doled out, is the election authority really a lot of leverage in how they portion election judges around the city. So it is a logistical I won’t say nightmare, but it is pretty darn close.
John Tsarpalas: I don’t know how… You can’t do it all and you try to hit the worst spots and cover as much as possible. But it is a logistical nightmare.
John Fogarty: Yeah, it is.
John Tsarpalas: This state is huge. If you are not familiar with Illinois, it is eight hours from one end of the state to the other.
John Fogarty: That’s right. And the city of Chicago has 2.7 million.
John Tsarpalas: Right. And its own separate board of elections than the county.
John Fogarty: Yeah. And it is bigger than many states. It is really tough.
John Tsarpalas: Yeah. It is fraught with lots of possibilities.
John Fogarty: Yes indeed.
John Tsarpalas: Any last minute thoughts or advice?
John Fogarty: Well, from election lawyers perspective, I think what you mentioned earlier in the podcast is very good advice. At least have a relationship with an election lawyer preferably, or at least a lawyer perhaps.
John Tsarpalas: I think someone who knows election law. It is a different field. It is a whole set of laws. It is a giant book in itself. And if they are not familiar, they have to do a lot of homework. But if you’ve got a volunteer, that’s great. If it is a small campaign and you know an attorney and they are willing to do look into the laws for you, that’s great.
John Fogarty: Yeah, that’s great.
John Tsarpalas: Because it is hard. We need more people doing election law.
John Fogarty: Oh yeah. Yeah. But you are right. When you have at least a start of a relationship, when you really need it at the very end, it is there.
John Tsarpalas: Yeah. And I think what you would do is you call that attorney just a week before the election and get their cell phone. Say, “Will you be on call for me on election day?”
John Fogarty: Absolutely.
John Tsarpalas: Because you never know what is going to happen.
John Fogarty: You don’t.
John Tsarpalas: That is what is so fun about it and it is so maddening on the other hand. It is like, “We are so close and they are stealing it! I see them doing it right in front of me.”
John Fogarty: Yeah, yeah. Right on.
John Tsarpalas: Well, thank you, John. Thank you very much.
John Fogarty: Thank you very much.
John Tsarpalas: How would someone get a hold of you if they need your services?
John Fogarty: Probably my website would be the best.
John Tsarpalas: Perfect. And that is?
John Fogarty: FogartyLawOffice.com.
John Tsarpalas: Very good. I will have a link to that on the Commonwealthy website as well in our show notes. If I can get a bio and a photo of you, I will put that on there as well.
John Fogarty: You got it.
John Tsarpalas: And just thanks, John. This was fun.
John Fogarty: Thank you. It was very fun. We should do it again.
John Tsarpalas: We will. So a couple of thoughts. First of all, I have never been in a petition challenge that I have lost. However, I have thought about them and not filed. When you are looking at petitions and you are analyzing should you go for this or not, you have to figure out if you have a reasonable chance. You’ve got to see enough mistakes or situations where you think signature are invalid and that there are enough invalid signatures that you can throw out.
And if you don’t or it is just too close, it is not worth doing. You are going to have to pay an attorney. Usually this three to five thousand dollars or more, depending on how extensive it is and what is going on. If you have a lot of volunteers to help, that helps cut the cost down on that.
So I wanted to advise that if you are in a state where there are petitions involved and signatures, you need to consider the situation before you try to do a petition challenge and really think it through and have the money to do it.
Now, it is a lot cheaper to take someone out in a petition challenge than it is run to a primary campaign against them. However, I like a good primary. A primary gets your name out early. It gets you motivated. It gets your teams moving. It gets excitement and energy in the air. And it also, when you win the primary, plants into people’s mind that you are winner.
So you also have to try to consider do you want to try to take the person out on a petition challenge or not. And if they are a decent candidate, they are going to have good signatures, you are not going to be able to take them out, and you going to have run in a good race in the primary to defeat them.
And that is a good thing for both of you because it helps you to get ready for the general election, which in some areas is easy and in some areas it is very, very difficult and you are the underdog.
As always, we will have show notes and a transcript of today’s podcast at Commonwealthy.com. If you’ve got questions, you can reach me at john@commonwealthy.com. I am happy to answer your email questions.
And if you need more help with your campaign, I am a candidate coach. What makes me different than a consultant? Well, I help you to formulate your plans. I can review your plans for you. I can help you with public speaking, fundraising, and Get Out the Vote. I coach you.
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My first half hour of consultation is free. Often it runs a little longer than that. I don’t mind. I’ll let you know how I can help if you want to use my coaching beyond that point. But it is really helpful to most people to talk to me because I come up with some ideas and get them on track in their first half hour.
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