Speaker 1: Hi, I'm Molly John Fast and this is Fast Politics,
Speaker 1: where we discussed the top political headlines with some of
Speaker 1: today's best minds. We're on vacation, but that doesn't mean
Speaker 1: we don't have an amazing show for you Today. Professor
Speaker 1: Lawrence Lessig and Matthew Seligman stop by to talk their
Speaker 1: new book, How to Steal a Presidential Election. But first
Speaker 1: we have the author of the new handbook for a
Speaker 1: post row America, an executive director of the West Alabama
Speaker 1: Women's Center, Robin Marty. Welcome back to Fast Politics, Robin Marty, thank.
Speaker 2: You so much for having me back. It's always so
Speaker 2: much fun.
Speaker 1: I want to talk to you whenever I am thinking
Speaker 1: about how women have lost a right they had for
Speaker 1: fifty years and we were told.
Speaker 3: It was not a big deal. So you're in Alabama,
Speaker 3: used to have an.
Speaker 1: Abortion clinic, you now have an STD clinic.
Speaker 2: Right, I'm just going to say, right now, I have
Speaker 2: the most amazing clinic, and I'm so excited about it.
Speaker 2: I'm actually really excited about twenty twenty four. And I
Speaker 2: don't know when this is going to run exactly. So
Speaker 2: I'm going to tell you a secret, which is he
Speaker 2: just hired a doula.
Speaker 4: Yes, we already do prenatal care.
Speaker 2: We do STI testing and in treatment, we do annual exams,
Speaker 2: we do contraception. All of our stuff is free in
Speaker 2: sliding scale. One of the things that has really frustrated
Speaker 2: us about the work that we do is that there's
Speaker 2: only one hospital in Tuscaloosa, and obviously there's only two
Speaker 2: hospitals in western.
Speaker 4: Alabama in general.
Speaker 2: And our doctor is not allowed to deliver at our
Speaker 2: hospital because she used to do abortions.
Speaker 3: Say that one more time.
Speaker 2: Yeah, our doctor is not allowed to deliver at the
Speaker 2: hospital deliver babies.
Speaker 4: Yes.
Speaker 2: I don't know if they think she's just like suddenly
Speaker 2: going to in the middle of it, go oh oops,
Speaker 2: what do I do with this one?
Speaker 3: Or what I'm here to kill everyone.
Speaker 2: They have literally told us that there's no point in
Speaker 2: her applying for a transfer agreement or very agreement or
Speaker 2: anything like that because they're not going to grant it.
Speaker 2: And they suggested that we maybe use a hospital that's
Speaker 2: like almost an hour away, which these are patients who
Speaker 2: are low income, often uninsured or on Medicaid. It is
Speaker 2: difficult for them to travel and often they have complications.
Speaker 2: We want them to be able to use the hospital
Speaker 2: that is in their city, but so can't deliver, and
Speaker 2: none of the doctors will work with us. They have
Speaker 2: all said no. So what happens is we provide prenatal
Speaker 2: care for a patient, and we do this because we
Speaker 2: let people in immediately, we verify their pregnancy, which is
Speaker 2: what they need to do in order to get onto
Speaker 2: insurance or Medicaid. We see these patients until the point
Speaker 2: that they get their insurance and we see them for free,
Speaker 2: and then the point that they get insured, they can
Speaker 2: start to look for another doctor because no doctor will
Speaker 2: see them until they have insurance. But doctors don't want
Speaker 2: to see Medicaid patients, they don't want to see uninsured patients,
Speaker 2: and so we can't get these patients in anywhere. So
Speaker 2: often we're finding that our patients can't get doctors. Will
Speaker 2: go into the hospital in what is known as an
Speaker 2: unattached patient and so what that means is they show up,
Speaker 2: they can't pre register for the hospital. They can't do
Speaker 2: anything like if they need non stress tests, which is
Speaker 2: something that you do once a week, were diabetic.
Speaker 3: And a lot of these women may be diabetic.
Speaker 2: Yeah, we can't order a labor induction if somebody is
Speaker 2: superpast due and we think that it's time for that,
Speaker 2: we can't do any of these things. All we can
Speaker 2: do is after every appointment, we give the patient her
Speaker 2: paperwork so that she can take that file with her
Speaker 2: and then she is allowed to show up in the
Speaker 2: hospital when she's in the labor And one of the
Speaker 2: things that were really terrified by is they're going in
Speaker 2: there with no ally, nobody to help make sure the
Speaker 2: doctor is listening to them, and we don't know how
Speaker 2: the doctors treat them. Because we know how the doctor
Speaker 2: is treating our staff and saying that we are no good, right,
Speaker 2: not great, we don't know answers over to the patients.
Speaker 2: And we also know that this hospital is not kind
Speaker 2: to black women, and almost all of our patients are black.
Speaker 2: So now we have been able to hire a doula
Speaker 2: onto staff, which is such a huge blessing and something
Speaker 2: that I've been trying to do, trying to get the
Speaker 2: money together for over a year now, and we finally
Speaker 2: were able to get it. She'll be starting next year
Speaker 2: and we will be able to offer adula every patient
Speaker 2: who stays with us, and she will be able to
Speaker 2: accompany them into the hospital.
Speaker 1: When I'm listening to I'm hearing the incredible racism that
Speaker 1: these women face. And you'll remember that maternal fetal mortality
Speaker 1: is i think, many multitudes higher for black women than
Speaker 1: it is for white women.
Speaker 2: Not only is it many multitudes higher right now in Alabama,
Speaker 2: which is in Alabama, every one in one hundred black
Speaker 2: women is likely to die in birth. That's how bad
Speaker 2: it is. The highest patient is.
Speaker 1: If you're a black woman, you go into the hospital
Speaker 1: with a one percent chance of dying in childbirth.
Speaker 3: In the year twenty twenty three.
Speaker 2: Yes, exactly, And we just had the latest statistics for
Speaker 2: infant mortality and in Alabama, infant mortality actually did decrease
Speaker 2: this year.
Speaker 4: Which it is unlike any of the other states.
Speaker 2: However, it decreased for white babies, and it decreased a
Speaker 2: lot for white babies, but it's still increased for black babies.
Speaker 3: Wait say that one more time.
Speaker 2: If you were having a white baby, that baby is
Speaker 2: less likely to die this year than it was last year. However,
Speaker 2: if you are having a black baby, that baby is
Speaker 2: more likely to die than last year. And so our
Speaker 2: state was praising the fact that our infant mortality rate
Speaker 2: went down, but it was entirely just for the white population.
Speaker 1: There's so many levels of injustice here. I just can't
Speaker 1: even break it down. This is what the Republicans want.
Speaker 1: These are people having babies. These are people not having
Speaker 1: abortions because they can't get abortions.
Speaker 3: Talk to me about what it is like. I mean,
Speaker 3: so you have a baby, you have more likely to die.
Speaker 3: I mean, it's just incredible.
Speaker 1: But they're forcing you to have the babies because it's
Speaker 1: all about life, right.
Speaker 2: Well, and it's more than forcing someone to have a baby,
Speaker 2: they are forcing people to become pregnant. In my opinion,
Speaker 2: there is has been no push in any way, shape
Speaker 2: or form, no financial incentive, no nothing to make sure
Speaker 2: that contraception is getting to people who do not have
Speaker 2: the ability to pay for it. It is just not there.
Speaker 2: Here we are with no legal abortion, with the rising
Speaker 2: maternal mortality issues, and you still cannot access contraception in
Speaker 2: the state of Alabama if you don't have insurance or
Speaker 2: if you are on Medicaid unless you go to a
Speaker 2: county health department. These are people who do not have
Speaker 2: primary care physicians, so they cannot get it that way.
Speaker 2: There is one Planned Parenthood clinic left in the entire state.
Speaker 2: The others have closed, and so there's Planned Parenthood and
Speaker 2: there's US and we are the places where a person
Speaker 2: can go to be able to get this free or
Speaker 2: no cost birth control. And so when you are not
Speaker 2: allowing people to be able to access contraception, one of
Speaker 2: the reasons being, of course, that Medicaid has not been
Speaker 2: expanded yet. But there are a myridate of other ways
Speaker 2: that they could make this accessible. They could provide grants
Speaker 2: to different cities. They could tap individual doctors and ask
Speaker 2: them to do it. There are all these ways that
Speaker 2: they could expand Title ten. But instead our state still
Speaker 2: has the rule that says Title ten funding, the millions
Speaker 2: of dollars that we get from the federal government can
Speaker 2: only be dispersed via a county health department, even though
Speaker 2: the county health departments are understaffed, often closed, and so
Speaker 2: the weight is many months.
Speaker 1: Jesus, I'm not surprised because every time I talk to you,
Speaker 1: why I love to talk to you, besides the fact
Speaker 1: that you're smart and you're right, and you're a good
Speaker 1: person and you're just doing the real work on the ground.
Speaker 3: One of the reasons why I love to talk to you.
Speaker 1: Is because you are really seeing what's happening in Alabama
Speaker 1: in a way that people in government or even who
Speaker 1: are in media are not necessarily seeing it. So I'm
Speaker 1: hoping you could talk to me about are people still
Speaker 1: getting abortions in Alabama?
Speaker 3: I mean, what does it look like, what's happening.
Speaker 4: I'm not sure.
Speaker 2: We know that there's already been an uptick in pregnancies
Speaker 2: and childbirths in that six month period that was in
Speaker 2: twenty twenty two. We did see that number go up
Speaker 2: that has been qualified in statistics. So definitely there are
Speaker 2: less people getting abortions.
Speaker 4: We know that much.
Speaker 2: We are not, I will say, we are seeing less
Speaker 2: people coming in asking about abortion, which in some ways
Speaker 2: is really good because we can't say anything still because
Speaker 2: of this horrible lawsuit that we're running against the Attorney General.
Speaker 2: The Attorney General says that if we provide them with
Speaker 2: any information about an abortion, even if it's a legal
Speaker 2: abortion in a legal state, we could be held as
Speaker 2: part of a criminal conspiracy. So that's something that we're
Speaker 2: still waiting to go through the courts. It was supposed
Speaker 2: to have a hearing end of October and it got
Speaker 2: postponed and we haven't heard anything since. So at this point,
Speaker 2: basically me and my staff were still gagged from providing
Speaker 2: any literally like public information, but people are not coming
Speaker 2: in as much. I will say that in Tuscaloosa, we
Speaker 2: are seeing a definite uptick in the number of pregnant
Speaker 2: patients that we're seeing.
Speaker 4: We used to.
Speaker 2: See maybe three or four new pregnancies come in a week.
Speaker 2: Now we're seeing probably at least fifteen people who come
Speaker 2: in for pregnancy verification and paperwork, and of them, like
Speaker 2: probably half of them stay with us at least for
Speaker 2: a few months to get their prenatal care. So it's
Speaker 2: definitely difficult for people to go get abortions. I don't
Speaker 2: think as many people are trying to get abortions. Our
Speaker 2: abortion fund is still not able to provide any sort
Speaker 2: of funding for abortions. But also, this is a community
Speaker 2: that has lacked healthcare, that is preventive healthcare. They lack
Speaker 2: basic quality issues, safe housing, and good food, all of
Speaker 2: the things that a person needs in order to be healthy.
Speaker 2: And because of that, I do not know what the
Speaker 2: rates of miscarriage is and what is induced miscarriage, or
Speaker 2: whether that is just people having miscarriages, because that's what
Speaker 2: happens when you have unhealthy bodies and they're made pregnant.
Speaker 2: I do think that that is increasing. I don't have
Speaker 2: numbers that I can point to yet that show that.
Speaker 2: But you're not seeing healthy patients, I will put it
Speaker 2: that way, and we are likely seeing patients. I can
Speaker 2: say that we are seeing patients that we've already seen
Speaker 2: who are pregnant before, who are not pregnant now, who
Speaker 2: are pregnant again, and so they don't always tell us
Speaker 2: that they had a miscarriage or if they went and
Speaker 2: had an abortion. But I will say that the amount
Speaker 2: of people giving birth is going up, but that it's
Speaker 2: not as much as I think it should be.
Speaker 3: Right, So it might be people taking medication.
Speaker 2: Abortion, yeah, it might be, but it all might just
Speaker 2: be people who are having miscarriages, which, honestly, that worries
Speaker 2: me because miscarriages are I don't know what I would
Speaker 2: to say. It's expensive because if you go to a hospital,
Speaker 2: that is a huge hospital bill, especially for people who
Speaker 2: were uninsured. Miscarrien that have a lot of potential danger
Speaker 2: to them if they aren't followed up on. Honestly, I'm
Speaker 2: just really extremely worried about our community in general.
Speaker 1: So we have two women in the news right now,
Speaker 1: Kcox and Britney Watts, and I feel like these cases
Speaker 1: are in my mind, revably liked because they are two
Speaker 1: women who So I want.
Speaker 3: To talk first to you about Kcox.
Speaker 1: Yes, the most attractive white person you've ever seen in
Speaker 1: your life. Yeah, she is the world's greatest plaintiff.
Speaker 2: Right's aster child of the justified abortion?
Speaker 4: Yes, for sure, exactly.
Speaker 1: She's got two kids, she wants a more kids, She's
Speaker 1: had sections, she's worried about it.
Speaker 3: I mean, it just is like, it's not a baby.
Speaker 3: It's twenty one weeks.
Speaker 1: It has a zero point zero chance of surviving.
Speaker 3: If it survives, it does in her arms.
Speaker 1: Okay, So when they were lying about the abortion exception,
Speaker 1: this was the lie that they that they were shopping right,
Speaker 1: it was a lie, and she exposed that. Why do
Speaker 1: you think My question about Kacox is more like, why
Speaker 1: aren't we seeing more plaintiffs like this?
Speaker 2: Because the type of people who are likely to have
Speaker 2: wanted pregnancies that go wrong are the type of people
Speaker 2: who have the most resources to leave, and they're not
Speaker 2: put themselves through this. The reality is that when it
Speaker 2: comes to abortion, abortion, while not dangerous, it is always safer,
Speaker 2: the easy, the earlier you do it. And also, nobody
Speaker 2: wants to be pregnant with when they don't want to
Speaker 2: be Like, nobody wants to carry around a child that
Speaker 2: they know is never going to result in a live
Speaker 2: birth if they are pregnant and wanted to be pregnant.
Speaker 2: I know personally when I had a miss miscarritage during
Speaker 2: my second pregnancy, the moment I found out that there
Speaker 2: was a non viable fetus inside of me, all I
Speaker 2: could think every moment was get it out, get it out,
Speaker 2: get it out, get it out. How fast could I
Speaker 2: do it? How quickly could I get it done? I
Speaker 2: could not imagine going through what Kikoks went through in
Speaker 2: order to try to get permission and to do this
Speaker 2: lawsuit in order to stay home.
Speaker 4: Honestly, she's a hero just for that.
Speaker 3: Yeah, she really is a hero just for that. And
Speaker 3: she's put herself through how.
Speaker 2: And I mean honestly, the idea of a court coming
Speaker 2: back and saying I'm sorry, but your life is not
Speaker 2: worth it. There is no justifiable reason for you to
Speaker 2: have an abortion if you die, So be it that's
Speaker 2: a risk that you run for being pregnant, because that's
Speaker 2: what I think. The other side of this is just
Speaker 2: I don't know how much inherent belief I used to
Speaker 2: trap all the time as a reporter, the idea that
Speaker 2: they were leaving exceptions, like the original Texas Tony mcphn
Speaker 2: had no exceptions. They leave out fetal y and they
Speaker 2: say it's because doctors can be wrong, and so what
Speaker 2: do we do with politicians and a legal system that
Speaker 2: do not believe in medicine? Honestly, if people ever get outraged,
Speaker 2: and God, I hope like regular people finally get outraged
Speaker 2: at some point about what anti abortion activism has done
Speaker 2: to this nation.
Speaker 4: It is about how utterly.
Speaker 2: Destroyed doctor patient relationships in every sort of form. People
Speaker 2: can't trust doctors anymore because politicians say that they don't
Speaker 2: actually know things, or that God can step in a
Speaker 2: mega miracle. Our patients can't trust us because we can't
Speaker 2: necessarily give them all of the information that they should
Speaker 2: be allowed to add about their pregnancy and their choices.
Speaker 2: We can't trust our patients because we don't know if
Speaker 2: they are actually seeking an abortion or trying to gather
Speaker 2: evidence against us for a lawsuit like the way that
Speaker 2: they have destroyed any ability for medicine to be practiced
Speaker 2: in an open and helpful and patient centered way is
Speaker 2: just horrifying Jesus.
Speaker 3: So okay, so Kecox. We talked about that, Brittany Watts.
Speaker 2: That is an example of how any person can be
Speaker 2: accused of an abortion, and that we told people would happen.
Speaker 2: We told people it doesn't matter if they write these
Speaker 2: laws that say, oh, but the person who is having
Speaker 2: an abortion is exempt.
Speaker 3: Let me just explain.
Speaker 1: Brindany Watts, black woman in Ohio has a miscarriage. She
Speaker 1: knows something is wrong. She goes to the hospital twice.
Speaker 1: Two times. The doctor send her home and tell her
Speaker 1: she's okay. She has a miscarriage twenty one weeks in
Speaker 1: the toilet. It's not a baby, fleshes the whatever that
Speaker 1: fetal tissue or blood down the toilet. It gets stuck.
Speaker 1: She plunges the toilet. She's now being charged with corpse mango,
Speaker 1: some kind of weird.
Speaker 4: Deification of a corpse.
Speaker 3: Yes, defecation of a corpse.
Speaker 1: The medical examiner said the fetus was dead before it
Speaker 1: was expelled. She is a juryous deciding whether or not
Speaker 1: she should stand trial.
Speaker 2: She is every patient in all honesty, If I had
Speaker 2: a dollar for every patient that has told us that
Speaker 2: they went to the hospital because they thought they were
Speaker 2: miscarrying and have been so at home our point, it
Speaker 2: would be funded.
Speaker 4: That is what happens.
Speaker 2: We've already seen, like the New York Times article that
Speaker 2: came out Tuesday about how doctors with their inherent racial
Speaker 2: bias will often ignore what a patient is telling them
Speaker 2: when something is wrong when it's a black woman. That
Speaker 2: is what happens. I was thinking a lot yesterday about
Speaker 2: the idea that we know that especially out here, doctors
Speaker 2: are primarily white obgin's even primarily white, primarily male, and
Speaker 2: the patriarchal and racism that goes with being an OBGYN
Speaker 2: in the South, And I started thinking a lot about
Speaker 2: we talk about all the different things that could impact that,
Speaker 2: About how abortion bands are driving people away from wanting
Speaker 2: to practice down here, about how abortion bands are ending
Speaker 2: training so that people are able to get the training
Speaker 2: that they need to be able to provide abortions or
Speaker 2: miscarriage management. But one of the things that I never
Speaker 2: really thought about that really popped into my head yesterday
Speaker 2: was the idea of how our lack of sexual education
Speaker 2: is laying enough foundation that is going to make it
Speaker 2: so that nobody wants to practice gynecology down here, because
Speaker 2: we don't talk about sex, we don't talk about body parts.
Speaker 2: Nobody thinks about, oh hey, this is something that I
Speaker 2: might want to go into at some point, because sex
Speaker 2: is this taboo, nasty thing out here that nobody in
Speaker 2: polite society would even discuss. How is that impacting a
Speaker 2: child who is going up through elementary school, who's going
Speaker 2: into high school. How is this impacting people who might
Speaker 2: decide to go to medical school because this is not
Speaker 2: something then that everybody is going to think is accessible
Speaker 2: and acceptable and something that they should do. And so
Speaker 2: I think that we are looking at essentially a multiple
Speaker 2: generational loss of having providers, and especially providers who are
Speaker 2: in communities and no communities and are of the people
Speaker 2: that they will be serving and treating.
Speaker 3: Yeah, that's right, Jesus.
Speaker 1: Thank you so much, Rob, And I hope you'll come
Speaker 1: back anytime.
Speaker 2: I hate I say it's fun, but I love being
Speaker 2: unrestantly knew what's.
Speaker 1: Going on here. Lawrence Lessig is a professor at Harvard
Speaker 1: University and Matthew Seligman is a fellow at the Constitutional
Speaker 1: Law Center at Stanford University. They are both authors of
Speaker 1: How to Steal a Presidential Election, which is available for
Speaker 1: pre order now.
Speaker 5: Welcome Matthew, Hi, nice to be here, and welcome Larie.
Speaker 2: Great to be here.
Speaker 3: So the book is how to Steal an Election.
Speaker 1: First, we're going to talk about these faithless electors. So
Speaker 1: talk to me about what that is and what it
Speaker 1: means in the process of stealing elections.
Speaker 6: Yeah, So, since the beginning of the Republic, there have
Speaker 6: been electors who've been chosen and then decided to vote
Speaker 6: in a way contrary to how people expect it. The
Speaker 6: very first one of these was in seventeen ninety six
Speaker 6: with a guy named Sam Miles who has chosen to
Speaker 6: support Adams in Pennsylvania, but when the votes came in,
Speaker 6: it seemed like Jefferson actually had one Pennsylvania, so he
Speaker 6: decided to vote for Jefferson, and that infuriated people because
Speaker 6: he was selected for the purpose of voting for Adams,
Speaker 6: and he changed his vote and voted for Jefferson. Nonetheless,
Speaker 6: when the Twelfth Amendment came along, which was the only
Speaker 6: major amendment of the electoral College process. They didn't change
Speaker 6: that process, giving electors their freedom to vote as they wanted.
Speaker 6: So throughout history you've had an electors deciding to vote
Speaker 6: contrary to how they were pledged. In twenty sixteen, this
Speaker 6: became quite a serious issue because a bunch of electors,
Speaker 6: after seeing that Donald Trump had not won the popular
Speaker 6: vote even though he had won the electoral college vote,
Speaker 6: decided to get together and try to persuade enough Republican
Speaker 6: electors to vote for somebody other than Donald Trump, so
Speaker 6: it could go to the House of Representatives and the
Speaker 6: House side to vote however they wanted. They could vote
Speaker 6: for Donald Trump, they could vote for another Republican, they
Speaker 6: couldn't principal vote have voted for Hillary Clinton. But that
Speaker 6: obviously was not going to happen, so they tried to
Speaker 6: rally people. They failed to rally enough Republicans. They rallied
Speaker 6: a couple and then after the ELEC action, a couple
Speaker 6: of them were fined. And I actually took the case
Speaker 6: to the Supreme Court to decide whether this tradition that
Speaker 6: had existed since the founding of electors being allowed to
Speaker 6: exercise their judgment was actually constitutionally protected or whether states
Speaker 6: could overturn it. That was pretty clear it was constitutionally protected.
Speaker 6: But nine zips the Court went the other way.
Speaker 1: So that's so interesting to me because I thought it
Speaker 1: was constitutionally protected.
Speaker 6: Yeah, so did I. In twenty twenty, I guess it
Speaker 6: was July of twenty twenty, the Supreme Court decided nine
Speaker 6: to zero that in fact, the states could control how
Speaker 6: electors could vote. So this creates two real problems in
Speaker 6: the upcoming election. One problem it creates is just that
Speaker 6: not all states actually control how the electors can vote.
Speaker 6: So there's a bunch of states still where the electors
Speaker 6: are free to vote however they want, and so on principle,
Speaker 6: you could imagine candidates persuading electors to switch their vote.
Speaker 6: It's never happened for an illegitimate reason in the history
Speaker 6: of the Republic. You know, there's been legitimate reasons. You
Speaker 6: could agree or just agree with them, but that's still
Speaker 6: an open question right now. But the second more dangerous issue,
Speaker 6: which the Supreme Court case created is that you can
Speaker 6: imagine a legislature after an election deciding it didn't like
Speaker 6: the results of the election or didn't have confidence in
Speaker 6: the results of the election. What they can't do at
Speaker 6: that point is pick a new slate of electors. But
Speaker 6: what they can do, we argue, under the reasoning of
Speaker 6: the Supreme Court case, is basically tell their electors how
Speaker 6: they must vote. So the electors could have been elected
Speaker 6: to vote for Joe Biden, and then the legislature passes
Speaker 6: the law that says, we actually think the real winner
Speaker 6: in our state was Donald Trump, so we direct you
Speaker 6: to vote for Donald Trump. And the Supreme Court upheld
Speaker 6: the procedure that said that if they don't vote the
Speaker 6: way they've been directed, they can be removed and replaced
Speaker 6: with somebody who will. So this is a huge hole
Speaker 6: in the electoral system that's been created, and there's no
Speaker 6: obvious way to fill it unless the Supreme Court finds
Speaker 6: a way to reach out and clarify or restrict the
Speaker 6: scope of their decision.
Speaker 1: So this is different than what happened with Trump and
Speaker 1: his slates of fake electors.
Speaker 3: Can you talk a little bit about that.
Speaker 6: In the lead up into the twenty twenty election, Trump
Speaker 6: obviously was fighting in every single court he could to
Speaker 6: get the results in key swing states reversed. And it's
Speaker 6: just an unfortunate feature of our electoral college system that
Speaker 6: the electors have to vote on a particular day, and
Speaker 6: that day might actually be before the results in a
Speaker 6: state are decided. So in nineteen sixty in Hawaii, the
Speaker 6: election seemed to go for Richard Nixon. Then there was
Speaker 6: a recount ordered, and that recount and certification didn't occur
Speaker 6: or didn't complete until after the electors had to vote.
Speaker 6: So what the Democratic electors did as well as the
Speaker 6: Republican electors is they both met on the day electors
Speaker 6: were supposed to vote and cast their ballots, the Democratics
Speaker 6: for Kennedy, the Republicans for Nixon. And then when the
Speaker 6: election was finally resolved, the slate of electors for Kennedy
Speaker 6: was urgently sent to the capital. Nixon ones had already
Speaker 6: been sent and Nixon was the vice president, and Nixon said, well,
Speaker 6: it's kind of an odd situation, but not setting any president,
Speaker 6: I'm going to recommend we count the votes for Kennedy,
Speaker 6: and Kennedy's votes were counted. That Trump electors and the
Speaker 6: lawyers for Trump, Ken Chesboro most directly everyone's favorite, so
Speaker 6: they knew of this president, this president. Chesboro was urgently
Speaker 6: writing memos to states around the country, saying that if
Speaker 6: you want your electoral votes to count, they've got to
Speaker 6: be cast on elector Day. Now, in some states that
Speaker 6: was completely bogus, Like New Mexico, the Trump campaign filed
Speaker 6: a lawsuit fifteen minutes before the electors were supposed to
Speaker 6: vote to somehow create cover for Republican electors to vote,
Speaker 6: even though the state had been decided by more than
Speaker 6: ten points for Biden. In other states, it was more open.
Speaker 6: The state of Wisconsin had an ongoing state court proceeding
Speaker 6: which was resolved only fifteen minutes before or the electors
Speaker 6: were supposed to vote. At least a vote to the
Speaker 6: state Supreme Court was resolved then, but they still hadn't
Speaker 6: filed their motion for rehearings, so plausibly, they had an
Speaker 6: ongoing chance that their votes would count, so they also
Speaker 6: met and cast their ballots. Now, all of these electors
Speaker 6: are called fake electors. I think I believe, and I
Speaker 6: think Matt agrees with me, that it's not fair to
Speaker 6: call all of them fake electors. If you genuinely believe
Speaker 6: the election is undecided, the only way your votes could
Speaker 6: ever count is if you gather and vote on elector Day.
Speaker 6: It's just a flaw system. So if they genuinely, in
Speaker 6: good faith believed it was an unresolved election, then it's
Speaker 6: a good thing they gather and vote, because if they didn't,
Speaker 6: their votes couldn't count. This is one of the lessons
Speaker 6: that Ken Chesbro learned because he worked for al Gore
Speaker 6: in two thousand and the lawyers for al Gore made
Speaker 6: the incredibly stupid mistake of conceding that everything had to
Speaker 6: be resolved by what's called the safe Harbor Day, which
Speaker 6: was days before the electors were supposed to vote. So
Speaker 6: the Gore electors actually never voted on Elector's Day. They
Speaker 6: never cast their ballots. Even if somehow the whole system
Speaker 6: had converted and recounted happened and Gore had won, there
Speaker 6: wouldn't have been any electoral votes to be counted on
Speaker 6: January six. So that's why Ken Chasburrow was so keen
Speaker 6: to make sure the same thing didn't happen with Donald Trump.
Speaker 6: But obviously More's claims for legitimate recount were stronger than
Speaker 6: Donald Trump's.
Speaker 1: So Matthew, I think we need to talk about John Eastman.
Speaker 3: You were a witness in that case. Can we talk
Speaker 3: about that?
Speaker 6: Sure?
Speaker 5: So that's right. I was the expert witness for the
Speaker 5: State Bar of California in John Eastman's dispartment proceeding earlier
Speaker 5: this year, and so the principal issue that I testified
Speaker 5: about is the powers were, to be more precise, the
Speaker 5: lack of powers that the vice president has in the
Speaker 5: electoral count The twelfth Amendment, which is what governs our
Speaker 5: electoral college, says that the President of the Senate, who
Speaker 5: is the Vice President, shall open the certificates in the
Speaker 5: presidence of the Senate in the House of Representatives, and
Speaker 5: then the votes shall be counted. And it says that
Speaker 5: in the passive voice, and as a result of that
Speaker 5: hassive voice, it doesn't say exactly who does the counting.
Speaker 5: John Eastman and others, including Ken Chesbro, advanced the theory that, well,
Speaker 5: actually the vice president is the one who does the
Speaker 5: counting of electoral votes, and as a result of that,
Speaker 5: the vice president is the one who gets to resolve
Speaker 5: any disputes about electoral votes. So if there's more example,
Speaker 5: multiple submissions of certificates from different slates of electors, Eastman
Speaker 5: advanced the theory that well, it was actually Vice President
Speaker 5: Mike Pence who got to make the final decision about that. Now,
Speaker 5: the text doesn't fully resolve that issue one way or another.
Speaker 5: And so Eastman made a claim about history. He said
Speaker 5: that actually, the original understanding of the Constitution, going all
Speaker 5: the way back to the seventeen nineties, was that the
Speaker 5: vice president resolved disputes about this, and that was the
Speaker 5: basis of this fateful advice that he gave in a
Speaker 5: dramatical office meeting with President Trump and Vice President Mike Pence,
Speaker 5: where he was imploring Vice President Pence to exercise some
Speaker 5: unilateral constitutional authority to change the results of the election. Now,
Speaker 5: Vice President Pence ended up rejecting that theory, and he
Speaker 5: very dramatically, right before the electoral count started and the
Speaker 5: violence came to the Capitol, he released this public letter
Speaker 5: saying that he didn't believe that that was the right
Speaker 5: interpretation of the Constitution. And in this case, Vice President
Speaker 5: Mike Pence was right, and President Trump and his lawyers
Speaker 5: Eastman and chest Row were wrong. And so the way
Speaker 5: that Eastman ended up in a disbarment proceeding isn't just
Speaker 5: that he gave incorrect legal advice. It is that he
Speaker 5: gave legal advice that had no historical basis whatsoever. So
Speaker 5: Eastman based his theory on the idea that in seventeen
Speaker 5: ninety seven and eighteen oh one there were vice presidents
Speaker 5: John Adams and then Thomas Jefferson who presided over electoral
Speaker 5: counts in which they themselves were then elected president. And
Speaker 5: according to eu mean those vice presidents Adams and Jefferson
Speaker 5: actually resolved disputes unilaterally about electoral votes, about the validity
Speaker 5: of electoral votes. In seventeen ninety seven it was about Vermont,
Speaker 5: in eighteen oh one, it was about George And according
Speaker 5: to Eastman, well that's historical president. That shows that the
Speaker 5: way the founders imagined the Constitution and how this would work,
Speaker 5: is that the vice president then not Congress, would have
Speaker 5: the authority to resolve these sorts of disputes. Now, Eastman's
Speaker 5: history was flat out wrong, and so if you go
Speaker 5: back and read the records, it's absolutely clear that neither
Speaker 5: John Adams nor Thomas Jefferson resolved any disputes about this.
Speaker 5: Nobody ever suggested at the time that the vice president
Speaker 5: had this authority. And the way the process works from
Speaker 5: seventeen ninety one until today, Congress appoints these members of
Speaker 5: Congress as tellers, and the tellers do the counting, and
Speaker 5: this is still true. But John Eastman used this misunderstanding
Speaker 5: of history to say that Vice President Pennce had this
Speaker 5: extraordinary Power's stepping back for a second to imagine how
Speaker 5: radical that view would be, not just because it defies history,
Speaker 5: but also because it would create a system where the
Speaker 5: vice president would get to decide whether he won reelection.
Speaker 5: We sometimes gloss over the fact that John Eastman's advice
Speaker 5: to Mike Pence wasn't just that he could decide that
Speaker 5: President Trump would be reelected as president. He was saying
Speaker 5: that Mike Pence could decide whether Mike Pence was re
Speaker 5: elected as vice president. And that violates a pretty fundamental
Speaker 5: principle of the rule of law that no man can
Speaker 5: be a judge in his own case. But that's exactly
Speaker 5: the theory that they advanced, and it's just completely unsupported
Speaker 5: by the history. And you know, it's really difficult to
Speaker 5: imagine that that Eastman, that Trump would sit here today
Speaker 5: and say that Vice President Kamala Harris has the authority
Speaker 5: to decide the election on January sixth of twenty twenty five.
Speaker 5: And so I think that illustrates that perhaps they don't
Speaker 5: have the courage of their convictions.
Speaker 1: So there is no there there when it comes to
Speaker 1: Mike Pence changing the vote.
Speaker 5: Huh, that's absolutely right. There is no evidence at all.
Speaker 5: So there was no dispute about electoral votes that reached
Speaker 5: Congress during the electoral count in seventeen ninety seven or
Speaker 5: eighteen oh one, and so there was no dispute to resolve.
Speaker 5: And after each of those electoral counts, exactly zero people
Speaker 5: said anything. And so, according to Sman's theory, John Adams
Speaker 5: and Thomas Jefferson each unilaterally decided that they would be
Speaker 5: elected presidents, and after that nobody said anything. Nobody in
Speaker 5: the opposing political party complained at all. And that's like
Speaker 5: saying that, well, if Mike Pence counted Trump and Pence
Speaker 5: as reelected in twenty twenty one, that there would be
Speaker 5: absolutely nobody, not a newspaper column, not an opposing politician,
Speaker 5: not the losing candidate, Zero people would have complained about it.
Speaker 5: And that's just completely implausible. And when there actually were
Speaker 5: disputes about electoral votes, which happened about a half dozen
Speaker 5: times in the nineteenth century, the first time was in
Speaker 5: eighteen seventeen, then eighteen twenty one, eighteen thirty seven, eighteen
Speaker 5: fifty seven, and then eighteen seventy seven, which was the
Speaker 5: most serious one. In every single one of those cases,
Speaker 5: it is absolutely one hundred percent clear that Congress resolved
Speaker 5: a dispute and the Vice President played no role whatsoever.
Speaker 1: What should be done to keep whoever wants to though
Speaker 1: I assume it'll be Trump from stealing this twenty twenty
Speaker 1: four election.
Speaker 6: The most important thing to address is the problem with electors,
Speaker 6: I think, because if the electors can be told to
Speaker 6: vote differently from how they were elected to vote, then
Speaker 6: that's an obvious simple way for these brogue state legislatures
Speaker 6: to reverse the results. So it's pretty hard to imagine
Speaker 6: the Supreme Court addressing that question. I think one big
Speaker 6: thing to do is to begin to build out the
Speaker 6: understanding that this is possible, and we've got a resolve
Speaker 6: that this just is not allowed to happen. So that
Speaker 6: would be my first vote, Matt, what's your second vote?
Speaker 5: My second vote is that the residual ambiguities and weaknesses
Speaker 5: in the Electoral count Reform Act. So Congress did an
Speaker 5: extraordinary thing, actually passed election reform, a reform of the
Speaker 5: Electoral Count Act. And so prior to the Electoral count
Speaker 5: Reform Act, the old ECA, the one that we had
Speaker 5: in place on January sixth of twenty twenty one, was
Speaker 5: catastrophically vulnerable to manipulation. A single governor defining, you know,
Speaker 5: the outcome of the results in his or her state
Speaker 5: could potentially flip an election, and there was nothing that
Speaker 5: anybody could do about it. And so Congress did this
Speaker 5: extraordinary thing in December of twenty twenty two that almost
Speaker 5: went unnoticed given how significant it is by closing a
Speaker 5: lot of those loopholes. But many loopholes remain, and so
Speaker 5: you know, there's still time for Congress to step in.
Speaker 5: I'm not overly optimistic that that's going to happen. So
Speaker 5: I think that we need to be prepared for the
Speaker 5: possibility that these residual loopholes in the Electoral count reformat
Speaker 5: can be exploited. And how do we organize against that. Well,
Speaker 5: I think there are two things. The first thing that
Speaker 5: we do is that we start preparing the legal arguments
Speaker 5: that we're going to have to make in court. The
Speaker 5: twenty election didn't go to the Supreme Court, but you know,
Speaker 5: as Larry indicated, you know, there's I think a serious
Speaker 5: risk that there are going to be legal issues that
Speaker 5: do end up becoming so severe and potentially outcome determinive.
Speaker 5: So it goes to the Supreme Court. So we need
Speaker 5: to be prepared to do that. But stepping back from that,
Speaker 5: there's something that we election lawyers call the margin of litigation.
Speaker 5: And so the reason why Bush vy Gore was such
Speaker 5: an intensely disputed election where you know, the election in
Speaker 5: New Mexico in twenty twenty where Biden had won by
Speaker 5: ten points wasn't is because the difference was so big
Speaker 5: in New Mexico. And so we election lawyers talk about
Speaker 5: the margin of litigation as if it's not close enough
Speaker 5: that there are plausible or at least plausible sounding allegations
Speaker 5: of fraud or misconduct or illegality. If the margin is
Speaker 5: just really, really big, then these disputes and these legal
Speaker 5: questions don't have enough purchase to create real risks. The
Speaker 5: most important thing that people can do is vote and
Speaker 5: make it so that the margin is outside the margin
Speaker 5: of litigation. And now in our new world where election
Speaker 5: just speeds go beyond courts and they go to state legislatures,
Speaker 5: and they go to Congress, and they go wherever they
Speaker 5: can possibly go, making sure that that margin is large
Speaker 5: enough that no state legislature would dare do the things
Speaker 5: that we are talking about. If Biden has declared the
Speaker 5: winner in let's say Georgia by one hundred votes, then
Speaker 5: the state legislature may feel emboldened enough to say, oh,
Speaker 5: we think there was there were legal votes, and so
Speaker 5: we're going to direct the electors to vote for Trump
Speaker 5: instead of Biden. But if the margin is fifty thousand,
Speaker 5: then it's much less likely that there's going to be
Speaker 5: the political will, the political verb, the political shamelessness to
Speaker 5: take that step that would undermine the rule of law
Speaker 5: in our democracy.
Speaker 3: Thank you both so much. I hope you guys will come.
Speaker 6: Back every time you ask.
Speaker 4: Thanks so much, Molly.
Speaker 1: That's it for this episode of Fast Politics. Tune in
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