Amicus With Dahlia Lithwick | "Testing the Election" (October 3, 2020) – Detailed Summary

Overview

In this urgent "pop-up" episode of Amicus, Dahlia Lithwick convenes a high-stakes conversation about the legal, political, and historical tumult swirling around the 2020 U.S. presidential election. With President Trump and key officials testing positive for COVID-19 just weeks before Election Day, and ongoing fears about voter suppression, misinformation, and the potential undermining of democratic norms, Lithwick welcomes election law expert Professor Rick Hasen (UC Irvine) and historian Professor Carol Anderson (Emory University) to dissect the unprecedented moment. The episode delivers sweeping legal analysis, chilling warnings about white supremacy and voter intimidation, and ultimately, a call to hope, resilience, and action.

Key Discussion Points & Insights

1. Legal Uncertainty in a Pandemic Election

• Trump’s COVID Diagnosis and the Election Process

  • Dahlia opens with context: President Trump, the First Lady, and several officials have COVID; questions swirl on the impact for the ongoing election, with millions already voting (02:00-03:25).

  • Rick Hasen explains that with ballots printed and over 2 million votes cast, there is no clear process if a candidate is incapacitated at this stage. Trump’s name would remain on the ballot, and the “murky” constitutional mechanisms for replacement shift responsibility to electors, Congress, or courts (03:37-05:41).

    "The bottom line is that there are no certain answers here ... It probably comes down to Congress and could even come down to that weird provision in the Constitution ... every House delegation, each state, gets one vote." — Rick Hasen (05:25)

• Disinformation & Misinformation Dangers

  • Hasen highlights the heightened risk of false rumors (e.g., a candidate’s death), amplified by COVID, that could manipulate voters and destabilize faith in results (05:53-07:08).

    "Imagine there's false information saying a candidate has died ... domestic and foreign actors engaging in the kinds of dirty tricks ... I thought couldn't get any crazier, but in fact is just off the rails." — Rick Hasen (06:33)

• Voter Suppression in Texas: Drop Box Closures

  • With Texas limiting ballot drop boxes, Hasen argues this is a clear case of suppression with little plausible justification: "It's not an issue of security ... it looks pretty bad for Governor Abbott." (07:31-08:43).

2. What Has Changed Since “Election Meltdown”?

• The Unprecedented Challenge of COVID Elections

  • Hasen reflects on what his 2020 book Election Meltdown “failed to flag:” the extent to which coronavirus has upended voting logistics, forcing rapid, difficult expansion of vote-by-mail systems nationwide (11:53-13:56).

    "To ramp up the scale of mail-in balloting is just really, really tough to do ... It takes years to roll it out." — Rick Hasen (12:21)

• Trump’s Rhetoric and Undermining of Democracy

  • Both Hasen and Anderson decry Trump’s baseless allegations of voter fraud and his refusal to commit to a peaceful transfer of power; Anderson ties this to a deliberate strategy rooted in white supremacy and administrative sabotage (13:56-17:53).

    "He kneecapped the post office, knowing that mail-in ballots would be absolutely crucial in the midst of a pandemic..." — Carol Anderson (14:21)

    "He puts a kilo of pure, uncut white supremacy on the table and has his minions just snort it up... while everything around them is being destroyed." — Carol Anderson (15:37)

3. Dissecting Mail-In Voting and Trump’s Messaging

• Absentee vs. Mail-In Ballots: Trump’s Incoherent Distinctions

  • Hasen breaks down the systems (universal mail ballots vs. absentee on request), debunking Trump’s selective criticism and highlighting partisan efforts to sow confusion and skepticism (18:44-21:25).

    "I think he’s objecting to mail-in ballots that are sent in by people who don’t vote for him." — Rick Hasen (18:44)

• Creating Confusion and Illegitimacy

  • Anderson: The GOP targets their base with tailored messages stoking fear of “stolen” elections to delegitimize any adverse results, while Trump campaigns both for and against mail ballots depending on the audience (21:25-24:01).

    "A key element of voter suppression is voter depression ... confusion and a sense that the whole system is rigged ... is targeted at key communities to again, lower the voter turnout rate." — Carol Anderson (24:01)

4. The Playbook: Suppress, Confuse, and Discredit (with Debate Clips)

• “This is going to be a fraud like you’ve never seen.”

  • The hosts and guests break down Trump debate quotes (26:41–27:23), illustrating a coordinated plan to:

    • Sow doubt about mail-in ballots
    • Predict endless litigation/chaos
    • Mobilize poll watchers, intimidating voters
    • Assert futility and fraud to depress turnout

    "Pollute the water, sow doubt, sow confusion, depress voters from having any confidence. That’s the totality of the playbook, right?" — Dahlia Lithwick (27:23)

• Potential Outcomes: Excuse-Making or Subversion

  • Hasen outlines two scenarios:

    • Trump uses fraud claims as an excuse post-loss
    • If close, he could leverage state legislatures, courts, or Congress to overturn results:

    “The less benign potential … happens only if we have a close enough election ... that could lead to someone other than voters being the ultimate deciders of who gets those electoral college votes.” — Rick Hasen (28:33)

5. Historic and Modern Voter Intimidation

• Poll Watchers, Consent Decree, and a Legacy of Suppression

  • Anderson connects present “poll watcher” mobilizations to a history beginning with Reconstruction violence and running through Jim Crow and modern GOP tactics. The end of an RNC consent decree (against voter suppression) creates a “no rules” moment of legal vulnerability (32:13-35:49).

    "The use of physical violence and domestic terrorism to tamp down, to dissuade, to block African Americans from voting is as American as slavery." — Carol Anderson (33:06)

  • Hasen notes the blurred lines between official and freelance intimidation, warning of groups like the Proud Boys (35:57-37:46).

    "I'm much more worried about the Proud Boys and others taking matters into their own hands ... That's what Trump was inviting in the debate." — Rick Hasen (36:38)

6. DOJ Participation in Suppression and Disinformation

• How Bill Barr Undermines Election Integrity

  • The hosts and Hasen describe an alarming shift: rather than upholding voting rights, DOJ under Barr has become a barrier, amplifying baseless fraud allegations and likely to intervene in post-election litigation (44:44-46:43).

    "I've testified before Jeff Sessions ... but I do think he was a fundamentally decent person. The sense I get from Bill Barr is that he will say or do anything to protect this president ... What Barr is doing is downright dangerous." — Rick Hasen (44:55–46:43)

  • Anderson: Recent DOJ interventions (e.g., publicizing discarded Pennsylvania ballots) were attempts to stoke a false narrative of fraud (46:43–47:50).

7. Post-Election Scenarios and Advice

• Legal and Political Chaos May Follow Election Night

  • Hasen warns listeners that if the election is close, all tools—legal and extra-legal—may be used to contest the outcome, especially focusing on Pennsylvania, which has a history of election administration challenges (47:50-51:06).

  • Advice: Vote early, check status, avoid Election Day lines if possible—bank votes to shield results from chaos.

    "The more people that can bank their votes now that’s like an insurance policy against all of this post-election mayhem that's possible." — Rick Hasen (50:34)

8. Hope, Resilience, and Direct Community Encouragement

• A Letter from a Dispirited Voter

  • Lithwick shares a moving letter from a listener who is overwhelmed and nearly paralyzed into not voting due to pandemic hardship (51:06-53:24).

• Carol Anderson's Profound Reply (and Rallying Cry)

  • Anderson draws on the Black American historical struggle for the franchise, urging hope, strength, and persistence despite adversity.

    "Imagine being enslaved and having virtually no control over your life ... but you say, son, you don't know my name. ... Hope is powerful. It is without hope that the abusers win. ... We get the America we deserve. We get the democracy we deserve." — Carol Anderson (53:24-57:28)

• Rick Hasen’s Closing Affirmation

  • Hasen calls Anderson’s words a source of strength and emphasizes “no alternative” to pushing through for democracy (57:33-57:57).

Notable Quotes & Memorable Moments

• On White Supremacy and Strategy:
  “He puts a kilo of pure, uncut white supremacy on the table and has his minions just snort it up ... while everything around them is being destroyed.” — Carol Anderson (15:37)

• On Trump’s Election Rhetoric:
  “I think he’s objecting to mail-in ballots that are sent in by people who don’t vote for him.” — Rick Hasen (18:44)

• On Voter Suppression Tactics:
  “A key element of voter suppression is voter depression.” — Carol Anderson (24:01)

• On the DOJ:
  “What Barr is doing is downright dangerous ... the Department of Justice [is] one of the great impediments to voting rights.” — Rick Hasen (46:08)

• On Hope and Democracy:
  “Hope is powerful. It is without hope that the abusers win. ... We get the America we deserve. We get the democracy we deserve." — Carol Anderson (55:16, 57:00)

Timeline of Key Segments

• COVID Update and Legal Implications – 00:02-09:52
• Election Meltdown: Then vs. Now – 11:26-13:56
• Trump, Ballot Types, and Disinformation – 17:53-21:25
• Voter Suppression: Confusion & Depression – 21:25-25:22
• Debate Clips & Playbook Analysis – 26:38-27:23
• State Legislature, Courts, and the ‘Five Alarm Fire’ – 27:41-31:11
• Poll Watchers, Consent Decree, Vigilantism – 32:13-38:32
• Weaponization of DOJ – 44:44-46:43
• Advice for Voters, Post-Election Scenarios – 47:50-51:06
• Letter from Listener, Anderson’s Encouragement – 51:06-57:28
• Closing Thoughts & Affirmations – 57:29-58:32

Tone and Takeaways

The episode balances alarm at ongoing and potential threats to American democracy with deeply rooted hope and a call for action, particularly recognizing the historic resilience of marginalized communities. There is intellectual rigor, moments of despair, flashes of mordant humor (“Grifters, tramps and thieves” – 37:46), and finally, a fervent insistence that hope, community, and persistent action can overcome manipulation and abuse.

For Listeners

This episode is essential listening for anyone wondering how race, law, COVID, and misinformation collide in the 2020 election, and how individuals can respond. The legal explanations are clear for a lay audience, while Carol Anderson’s history-informed perspective and Rick Hasen’s legal insights together provide both a warning and a roadmap for those fighting for democracy in a time of crisis.