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Speaker 1: Buskin. Good morning, Welcome to Axios today. I'm Nila Boodoo

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Speaker 1: and we've made it to election day. Unless you've been

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Speaker 1: under a rock, you should know. It's Tuesday, November three,

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Speaker 1: and here's how we're going to make you smarter, not

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Speaker 1: just this morning, but for the next twenty four hours.

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Speaker 1: Starting this afternoon, we'll be here with you every few

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Speaker 1: hours for special mini episodes of the podcast answering the

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Speaker 1: urgent questions about this election. It's going to be a

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Speaker 1: long night, but we will be there with you, so

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Speaker 1: make sure you subscribe to our podcast so you don't

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Speaker 1: miss out. We get things started this morning with why

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Speaker 1: voting is a sacred right, plus how the election could

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Speaker 1: all come down to Pennsylvania. But first, Joe Biden's election

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Speaker 1: plan is today's one big thing. Yesterday we talked about

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Speaker 1: Jonathan swan scoop that President Trump might declare a preemptive

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Speaker 1: victory even well before all the ballots are counted. Axio says,

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Speaker 1: Margaret Talive and Mike Allen are just a few of

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Speaker 1: the people in the newsroom who are preparing for other scenarios,

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Speaker 1: and they're here with us now. First of the two

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Speaker 1: of you teamed up for a story that's about what

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Speaker 1: lessons Joe Biden has learned from the disastrous election night

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Speaker 1: back in two thousand. To remind everyone, George Bush declared

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Speaker 1: victory early, Al Gore conceded, and then he took back

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Speaker 1: his concession. Biden obviously does not want to repeat of that.

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Speaker 1: So how is that affecting his plans for tonight? No, Nile,

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Speaker 1: You're exactly right, I think from Joe Biden, if it

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Speaker 1: starts to look like mathematically he's the president elect, I

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Speaker 1: think that you will see him being asserted. I think

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Speaker 1: that you will see him starting to talk to the

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Speaker 1: nation as the president. Alight, now, he's not going to

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Speaker 1: jump the gun. This is only after it's clear. But

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Speaker 1: I think that you will hear the Biden campaign say

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Speaker 1: we are beginning our transition and start to talk about

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Speaker 1: healing the country. So that's one scenario we might see, Margaret.

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Speaker 1: Another is this idea of a red mirage that we

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Speaker 1: first heard of back in August, where Republicans may look

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Speaker 1: like they have a solid lead on election night before

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Speaker 1: all the votes are counted, but what are the updated

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Speaker 1: models showing now on that front. This is the notion

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Speaker 1: that we first heard about from a democratic analytics firm

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Speaker 1: that's funded by Mike Bloomberg called Hawkfish, and they have

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Speaker 1: updated that modeling based on some changes. And those changes

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Speaker 1: include the fact that actually more Republicans did end up

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Speaker 1: early voting in some places than they initially expected. They're

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Speaker 1: holding by their prediction that there is going to be

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Speaker 1: a red mirage at the same time saying that that

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Speaker 1: mirage might look smaller than initially expected. Mike, do you

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Speaker 1: anticipate a blue mirage? Well, now, what we could have

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Speaker 1: that because in some states you will see that mail

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Speaker 1: in and absentee vote coming in first, so that could

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Speaker 1: look a little bit like a blue whereas some states

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Speaker 1: they will instantly have both votes available and some states

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Speaker 1: will be just the in person vote at first. So

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Speaker 1: the Axios advice to you is be patient. This is history,

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Speaker 1: soak it in. Stick to trustworthy information that is from

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Speaker 1: reliable sources, and those sources are going to be super cautious,

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Speaker 1: super careful. As one editor said to me, there's no

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Speaker 1: point in being the first one to be wrang Margaret, Mike,

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Speaker 1: thank you. You guys are going to be back with us.

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Speaker 1: We're gonna be around all day and night. Thank you.

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Speaker 1: Nila have the best election day. We'll be back in

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Speaker 1: fifteen seconds with how litigation over Pennsylvania's vote could decide

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Speaker 1: the election. Welcome back to Axios today. We've been talking

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Speaker 1: for months about how both sides are preparing for potential

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Speaker 1: lawsuits and court battles. We've also been talking about how

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Speaker 1: President Trump made a clear victory before all the votes

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Speaker 1: are counted. Noah Feldman is a constitutional law professor at Harvard.

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Speaker 1: He also hosts the Deep Background podcast from our partners

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Speaker 1: at Pushkin Industries. Hey, Noah, thanks for taking the time

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Speaker 1: with us this morning. Thanks for having me. I wanted

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Speaker 1: to start by asking about something you've been writing, which

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Speaker 1: is that President Trump can't claim reelection victory if the

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Speaker 1: votes haven't been counted without significant help. What did you

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Speaker 1: mean by that. I think what we need to really

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Speaker 1: do is distinguish between stuff that Donald Trump can say

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Speaker 1: and stuff that he can actually do to actually attempt

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Speaker 1: to hold onto the reins of power. That wouldn't be

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Speaker 1: simply a violation of the unwritten norm that you don't

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Speaker 1: claim to be elected if you're not elected. That would

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Speaker 1: be a violation of some actual laws that say it's

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Speaker 1: not up to the president to decide who wins the presidency.

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Speaker 1: One of the places where this could get messy is

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Speaker 1: in Pennsylvania. So how much of the outcome could hinge

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Speaker 1: on that state? Right now, it's the consensus of Supreme

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Speaker 1: Court watchers and election watchers that the most probable location

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Speaker 1: of a disastrous Bush figure kind of scenario is Pennsylvania.

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Speaker 1: So for that to happen, first of all, the election

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Speaker 1: has to basically come down to Pennsylvania. Second of all,

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Speaker 1: what would then have to happen is there have to

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Speaker 1: be a lot of ballots still coming in after eight

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Speaker 1: pm on election day. Now, what's happened in terms of

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Speaker 1: the current state of play can be summarized relatively simply.

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Speaker 1: The state law says you've got to get your ballot

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Speaker 1: in by eight o'clock on election day. The state Supreme

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Speaker 1: Court interpreted the Pennsylvania constitution to say, it's COVID, we're

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Speaker 1: giving a three day extension. The US Supreme Court declined

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Speaker 1: to reverse their decision, but some of the justices basically

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Speaker 1: said to Trump's lawyers, come back to us after the

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Speaker 1: election is over and try again. And among other things,

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Speaker 1: there's been a request by Trump's lawyers that the Pennsylvania

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Speaker 1: election authorities separate out or segregate out all the ballots

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Speaker 1: that are received after eight pm on election day, so

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Speaker 1: that if the issue goes back to the Supreme Court,

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Speaker 1: those ballots could then be discounted. Well, we'd be talking

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Speaker 1: about here, would be actually stopping the ballots from ever

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Speaker 1: being counted in the first place, directly blocking people who

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Speaker 1: voted from having their ballots counted, and maybe design their

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Speaker 1: presidency on that basis. How are you feeling about all

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Speaker 1: of this? What are you thinking? My brain is like

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Speaker 1: a split screen on this. On the one hand, I'm

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Speaker 1: trying to calmly, rationally lay out each of the steps

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Speaker 1: so that I can understand what's going on, which is

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Speaker 1: my first job, and then try to explain it to people,

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Speaker 1: which is my second job, and so I can figure

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Speaker 1: out what I think about it, which is my third job.

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Speaker 1: The other part of my brain is in full on

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Speaker 1: fantasy mode. You know, if only we could get a

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Speaker 1: definitive win, I would prefer it to be for Joe Biden,

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Speaker 1: but even a definitive win for Donald Trump would be

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Speaker 1: better than a major national crisis over this. Noah Feldman

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Speaker 1: is a constitutional law professor at Harvard and he's also host.

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Speaker 1: As he said of the Deep Background podcast, Hey Noah,

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Speaker 1: thanks for taking the time to speak with us, to

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Speaker 1: appreciate it. Thank you for having me. I think the

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Speaker 1: irony of this election is that while so many people

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Speaker 1: are voting, we're just talking about the result, and it's

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Speaker 1: easy to overlook how important actually voting is and how

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Speaker 1: many Americans didn't have the right to do this just

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Speaker 1: a few decades ago. The Reverend doctor Otis Moss the

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Speaker 1: Third is the grandson of Otis Moss Senior, who in

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Speaker 1: nineteen sixty four set out to exercise his right to vote.

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Speaker 1: Dressed in his Sunday best, he walked six miles to

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Speaker 1: the closest polling site in Georgia. He was turned away,

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Speaker 1: so he walked miles to the next and was turned

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Speaker 1: away again. When he walked to the third place, he

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Speaker 1: was told they were closed. His grandson thinks about that

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Speaker 1: story every time he casts a ballot. The first time

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Speaker 1: I had the opportunity to vote was in nineteen eighty eight.

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Speaker 1: Reverend Moss is the pastor of Chicago's Trinity United Church

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Speaker 1: of Christ. My father took me to Mercer Elementary School

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Speaker 1: in Shaker Heights, Ohio. It was a very emotional moment

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Speaker 1: as I realized that my grandfather was spiritually with me.

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Speaker 1: But when I came out of the booth, there was

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Speaker 1: my father, which is about tears in his eyes. My

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Speaker 1: grandfather's footsteps could be heard, as my father would say,

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Speaker 1: in the voting booth, and it's a story he tells

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Speaker 1: over and over again. It's not as a story of

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Speaker 1: African Americans. This is an American story. Everybody has their

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Speaker 1: right in the band to bring something unique to the table,

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Speaker 1: and we have to fight to ensure that every community,

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Speaker 1: in every voice is heard. Reverend Doctor Otis Moss the

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Speaker 1: Third is the pastor of Chicago's Trinity United Church of Christ.

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Speaker 1: Thank you for taking the time to speak with us.

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Speaker 1: Thank you so much. Reverend Doctor Otis Moss the Third

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Speaker 1: has turned this into a film called Otis's Dream, and

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Speaker 1: stay tuned to hear the rest of his story and

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Speaker 1: a bonus episode we'll have for you later this week.

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Speaker 1: And don't forget to subscribe to us to get not

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Speaker 1: just that, but all of our special mini episodes. The

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Speaker 1: start this afternoon. I'm Nila Boodoo. Thanks for listening, Stay

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Speaker 1: safe and we'll see you back in just a few

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Speaker 1: hours for axio selection twenty twenty