← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Testing the Election
00:59:18
Votes are already being cast. Will chaos be the winner?
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- [00:03]
Rick Hasen
It would be best for the country to have President Trump make a full and complete recovery and this election go forward. Final segment, election integrity.
- [00:16]
Carol Anderson
This again is the white supremacy coursing through this language of massive voter fraud. And they're going to steal the election.
- [00:25]
Donald Trump
This is going to be a fraud like you've never seen.
- [00:28]
Rick Hasen
Vote, vote, vote.
- [00:32]
Dahlia Lithwick
Hi, and welcome back to Amicus. This is Slate's podcast about the law, the courts, the rule of law, the Supreme Court. I'm Dahlia Lithwick. I write about many of those things and I'm a senior editor at Slate. So we decided to pop up with this off week episode. We taped it all the way on Thursday after the debate, and the episode is about the election. It was gonna update our analysis with Professor Rick Hassan of UC Irvine. You'll rem remember he was my co conspirator on our Election Meltdown series that we brought to you back in January and February of 2020. That series was based in large part on Rick's book, Election Meltdown. And after Tuesday's disastrous presidential debate, when it became clearer than ever that Donald Trump was going to have this closing argument to the American people that the entire election is a sham and he's running against it, we decided to call on Rick and on Professor Carol Anders of Emory University to kind of get the band back together again. Carol, you may recall, joined us for one of the most clarifying conversations we had on the Election Meltdown series. And she brought that same clarity and wisdom and just vast, sweeping historical context to the conversation again this week. And then in the early hours of Friday morning, Donald Trump confirmed on Twitter that he and the first lady had tested positive for the coronavirus. We're gonna stop and wish them both good health. NBC is also reporting that Joe Biden has tested negative, although that can obviously change in the coming days. Judge Amy Coney Barrett has reportedly tested negative, but she met with Senator Mike Lee this week, and he is now positive for coronavirus. This is all contact tracing. Meet life on Capitol Hill. There are a lot of implications to everything that has happened, and they raise a lot of legal questions. But today, right now, with a month to go before Election Day, millions of Americans are already voting, and they have questions about what all of these new developments may mean for the election itself. So in a few moments, we will turn to the wonderful conversation that we taped on Thursday about the facts of the election and challenges to ballots. None of that has changed. But first, we thought we'd take an opportunity to have a quick update with Rick Hassan, about the things that have changed since Donald Trump has announced that he is COVID positive. Rick has just posted about this in slate.com so I would urge you to read his piece as well. But, Rick, welcome back.
- [03:26]
Rick Hasen
Happy to be back with you, Rick.
- [03:29]
Dahlia Lithwick
What does the law say about what happens if a candidate is incapacitated or worse? Voting has already begun. Please.
- [03:37]
Rick Hasen
Right. So we are in kind of a pickle because the. If this had happened a month ago and it was serious enough, and I should start by saying I wish the president and the first lady and everyone who suffers from this terrible disease a full and complete recovery, but we do have to talk about the political implications of all of this. And so if this happened a month ago, they would have just replaced Trump's name on the ballot. You know, if he was incapacitated or passed away and voting would go on. If this happened after voting took place, well, then there's all kinds of rules in terms of dealing with the electors, the Electoral College, this situation. Now, we have had over 2 million people cast ballots. Ballots are printed. Unless Congress were to take the unprecedented step of passing a law that delays the election, something I don't expect to happen. What we will instead see is Trump's name would remain on the ballot even if he withdraws or dies and can't continue as the candidate. And then it becomes a question of what do the electors do? That is, we vote for electors rather than voting for the presidential candidate directly. What does the Republican Party do that would be in a position to pick a replacement nominee? Or what does Congress do and what do the courts do? And I spell it all out in the slate piece. But the bottom line is that there are no certain answers here. If there's a Biden victory, you know, it's a resounding Biden victory. I think these problems pretty much go away unless we see legislatures do something really funky and try and take away the power of the voters to pick the electors directly. But if there are lots of votes for Trump, then it becomes really murky as to what happens. And ultimately it probably comes down to Congress and could even come down to that weird provision in the Constitution, Constitution that says that if nobody gets a majority in the Electoral College, every House delegation, that is each state, gets one vote in the House of Representatives to choose the next president. So President Romney, here we come.
- [05:42]
Dahlia Lithwick
I guess I want to know if this increases the probabilities of an election that is not, in fact, decided by the voters, or is the answer we just don't know?
- [05:53]
Rick Hasen
Well, I Think you can imagine cross cutting things. First of all, Biden as of right now, the polling shows he's in the lead. He could have a larger lead because people might not want to vote for a candidate who is sick. Maybe Trump does better because he gets a sympathy vote. I mean, I don't know electorally how that plays, but I think it does raise these questions about not just the kind of rogue activities of state legislatures, but also raises the issue of disinformation. Imagine a false information. And this is one of the things I think Danielle Citron mentioned when we had our live event in Washington, D.C. where we had our rug of despair out in front of us that we all enjoyed commiserating about is, you know, what if there's false information saying a candidate has died? I mean, now it would seem much more plausible, you know, and that could affect voting. You know, disinformation, claims of a cover up, all kinds of conspiracy theories. So I really worry about domestic and foreign actors engaging in the kinds of dirty tricks that we talked about in connection with this election that I thought couldn't get any crazier, but in fact is just off the rails. Writer's room. Go. And you're drunk. Go to sleep. Come back tomorrow.
- [07:08]
Dahlia Lithwick
Can we get 30 seconds, Rick, on the goings on in Texas since we taped on Thursday because it seems like maybe having, I don't know, a population of millions of voters who only have one Dropbox would be a form of vote suppression that you've been warning us about for years.
- [07:32]
Rick Hasen
Well, just before we taped, I posted a complaint that has been filed by LULAC and the League of Women Voters saying, hey, you know, Governor Abbott, you said in a recent filing in another case, you don't want confusion changing rules just before the election. Why are you closing 13 or 14 drop boxes for dropping off absentee ballots? Yes, of course, it's vote suppression when a party is trying to make it harder for people to vote when they're afraid of voting. I mean, I think that just tells you they don't want to have a contest where people can cast their ballots and there's just no plausible reason to do this. We know that dropboxes are secure. They're used in lots of places. They're kind of bomb proof these things are made. They're not just like a regular post office box. Talk about security. This is not an issue of security. This is an issue of we don't want to make it easy for people to vote. Now the good news in Texas is so few people can Vote by mail. Because the state's already got such a terrible record and they refused to expand. Vote by mail. They're one of the five states that or five or six states that have not expanded vote by mail during the pandemic. So maybe this doesn't have a huge effect. But, you know, it sure looks pretty bad for Governor Abbott.
- [08:44]
Dahlia Lithwick
And we're gonna turn now to the conversation as promised with Rick Hassan and Carol Anderson. But, Rick, I would just ask you, what are you gonna watch for in the next couple of days to figure out whether you're leaning into being a little more sanguine or a little bit more freaked out, because wherever you lean, I will follow.
- [09:05]
Rick Hasen
It would be best for the country to have President Trump make a full and complete recovery and this election go forward. Certainly the campaigns are going to be different. I don't know if Pence and Harris, for example, next week, if they're going to debate in person. I mean, there could be all kinds of questions about that. I don't know what's going to happen with the Supreme Court nomination, if that was a super spreader event at the announcements. And, and I don't know how that affects the presidential election. So there are a lot of political unknowns. But if you're talking about legally, I think the cleanest thing is for the president to make a complete recovery, for the election to go forward, and for us to just watch and see and hope and say the election Administrator's Prayer. Lord, let this election not be close and just let the people decide.
- [09:52]
Dahlia Lithwick
Thanks, Rick.
- [09:54]
Rick Hasen
Thank you.
- [09:55]
Dahlia Lithwick
And because this is a special extra off week episode of the podcast Slate plus, the listeners are not going to be getting their coveted visit behind the VIP velvet rope. That segment where Mark Joseph Stern and I weighed into the issues that may not have made it into the main show, but I promise Mark will be back next week and you can be sure that we will be talking about the Arizona case the Supreme Court just agreed to take up that has serious implications for what is left of the Voting Rights Act. In the meantime, you might want to make sure you're a Slate plus member so you don't miss that. Slate plus members get access to bonus content from a whole bunch of Slate shows. They also get ad free access to all of our shows. And Slate plus members support the vital work that we do here at Slate now more than ever. You can find details and join us@slate.com amicus+ and we thank you for supporting our work. And now, as promised, our conversation with Rick Hassan and Carol Anderson on the still urgent question of Donald Trump and his ability to challenge all the ballots, thus invalidating in the courts the results of the 2020 election. Rick Hassan teaches elections law at UC Irvine. Carol Anderson is the Charles Howard Candler professor of African American Studies at Emory University. Her research focuses on public policy with regard to race, justice and equal quality. Welcome to you both.
- [11:27]
Carol Anderson
Thank you for having us.
- [11:28]
Dahlia Lithwick
And, Rick, starting with you, Election Meltdown was the title you chose for your book, published February 4th. That was a million years ago. What did your elections crystal ball fail to flag that has arisen since then? What is melting down today more intensely than anything you even anticipated?
- [11:53]
Rick Hasen
Number one, coronavirus, which even in the best of times would have made holding a successful election in the United States a challenge. It's much more expensive to run elections in a pandemic, both in person and vote by mail. And one of the early things we talked about in our series was pockets of election administrator incompetence. Well, we're full of pockets now because to ramp up the scale of mail in balloting is just really, really tough to do in the best of circumstances. It takes years to roll it out. And, you know, we had voters in New York who were disenfranchised because they closed their ballot with a piece of Scotch tape, because they weren't educated that a piece of Scotch tape would disenfranchise you. I mean, that's the kind of thing we're talking about. The other thing that's changed is that as Donald Trump has been flailing in the polls, he's been ramping up his attacks on voting. Remember, this is a guy who claimed there was massive voter fraud in the election he won back in 2016 when he said that 3 to 5 million noncitizens voted in the election, all for his opponent, Hillary Clinton, somehow erasing the popular vote loss that he had. I mean, just ridiculous unsupported statements. But now much of it is targeted at the, the use of mail in balloting. But it's not only that. He's talking about sending poll watchers to places, you know, we talked about this in 2016, did the same thing, you know, go watch them. And, you know, when he says that in a debate, at the same time he's talking about the proud boys standing by, it's very worrisome. And where he won't commit to a peaceful transition of power. I mean, I think we're still in a situation where the election's gonna have to be very close for any of this to matter. But in terms of the statements that Trump is making that undermine democratic elections and the rule of law, I think we're kind of off the charts. It's hard to imagine any US Presidential candidate or president from a major political party making the kinds of incendiary, unsupported statements undermining our election process, like Donald Trump has done.
- [13:57]
Carol Anderson
Carol, Trump has never really been about democracy. And that's one of the fundamental foundational pieces we need to understand. And we see, see that in terms of the way that he kneecapped the post office, knowing that mail in ballots would be absolutely crucial in the midst of a pandemic, so that people did not have to choose between their right to vote and their right to health, the right to be safe. And so mail in ballots were a way to do that, because what that would also do is that in this historic election, it would reduce the number of people who are going to the polls on election day. So you could get something close to social distancing if you have adequate mail in ballots happening. So, and he bragged about it, about withholding funding from the post office, because then that way they won't be able to process all of those mail in ballots. You see with Lewis DeJoy, who, who went in and gave the order as Postmaster General to dismantle sorting machines. And so the moment you start dismantling these sorting machines and you see where they, the cities where they have removed them, over 670 of these machines, you begin to see that this is a way to create massive administrative backlog. And then you add to that the, the judge who released the RNC from that consent decree on poll watchers. And then, you know, you, you add to that the incendiary refusal basically, to say that white supremacists are bad. I mean, so you're mixing all of this together, and what you have is this toxic stew. I have said it before, now I'm getting ready to mix metaphors. What Trump does is that he puts a kilo of pure, uncut white supremacy on the table and he has his minions just snorted up, and it empowers them. It makes them feel strong, it makes them feel invincible while everything around them is being destroyed. Because that's what happens with addicts. And the more that he gets in trouble, the more kilos he puts on the table. And so we have got to be prepared for this. We have got to know that the RNC is also challenging in the courts, states that are trying to put in drop boxes, more drop boxes for the mail in ballot. So you See these states trying to figure out how do we conduct this massive election in the midst of a pandemic and not get our folks killed? Well, you have some states, you have other states are like, yeah, go out there. Yeah, if you really want an absentee ballot, go get a notary. Yeah. And, and go get a couple of witnesses too. Yeah, heck with that social distancing thing. So you've got this very bifurcated system happening here in the United States. Those who care about elections and are trying to figure out how to hold it in the middle of a pandemic that Trump let wild. And those who are like, echoing Paul Weyrich, the co founder of the Heritage Foundation, I don't want everybody to vote because frankly, our leverage goes up as the voting populace goes down. And that's what we're seeing as the election strategy coming out of Trump and the Republicans.
- [17:54]
Dahlia Lithwick
So, Rick, can I ask you just a point of information because from the beginning, Donald Trump has drawn some kind of distinction between absentee ballots, mail in balloting, solicited mail in balloting, unsolicited mail in balloting. He seems to be saying, I want you to vote like they vote in Florida, but not like they vote in all those other states that vote exactly like Florida. Can you please, to the extent that you can, clarify, and I know it's a fool's errand I'm sending you on, because I don't think there is, in fact an immutable line about what he accepts and doesn't. But can you, to the best of your abilities, explain to me what is the thing that he says other than, I guess we can't count any votes that come in after November 3rd. But what kind of mail in ballots he is objecting to?
- [18:44]
Rick Hasen
I think he's objecting to mail in ballots that are sent in by people who don't vote for him. So, you know, there are debates in terms of just terminology when you call something a mail in ballot, an absentee ballot. But I think we can say there are just a few systems. Number one, everyone's mailed a ballot. There are five states that do that and conduct their elections all by mail. There are four states that are joining them this time around, only including California, which is a state that is already 60 to 70% absentee balloting. So one system is everybody's mailed a ballot. And that seems to be what he complains about the most. He's claiming these ballots will be floating out there and they'll be stolen or in a ditch, he said, or Voted by somebody else or the mailman, the.
- [19:31]
Dahlia Lithwick
Mailman'S gonna sell it.
- [19:33]
Rick Hasen
I mean, one of the craziest things is subject to fraud, a foreign country is gonna manufacture thousands of these ballots. To be able to do that on a scale, we can get into the details, but it's basically impossible. Then there are places where you can vote by mail without an excuse. That includes Florida. That includes now Pennsylvania and Michigan. Those are states that used to not have no excuse abstitute balloting. But before COVID they decided to switch over. And there are all kinds of concerns about them being able to count them, but that's a different question. And then there are places where you have to have an excuse. And in this election, I think we're down to five or six places, most the largest being Texas, where you can't vote by male unless you're over a certain age or have an excuse. It was litigation. Went all the way to the Supreme Court to try and get that knocked out, and it hasn't. Trump suggests that the problem is the places where the ballots are sent automatically, unsolicited. But when he criticizes where mail in balloting is taking place, his criticisms could apply to any state. And Florida does a pretty good job in terms of quickly counting absentee ballots. The other states are gonna take a long time. He's complained about the amount of time it might take to get results. And I think that presents a very dangerous period where Trump might try to prematurely declare himself the winner if he's ahead. And the early counting, the in person counting, as his supporters don't use vote by mail as much. But it's really trying to make sense of what Donald Trump is saying about any topic is challenging trying to make sense in this area. It just makes no sense because not only does Trump and his allies, not only do they regularly vote by mail, they're out there. I have a friend in Georgia who got four absentee ballot notices from the Trump campaign. Hey, you should apply for absentee ballot. It's time to vote. They're really pushing absentee balloting hard among their own supporters.
- [21:25]
Carol Anderson
And I've got to say, somehow I ended up on the National Republican Committee something other list. And it says, we hear you're one of our staunchest supporters and we really need you because the Democrats are going to try to steal this election with mail in ballots. And so this is the message that's going out there. And what it's designed to do is to create confusion. It is designed to cast an air of illegitimacy on this, on the election results. And this is why we also hear Trump say that, you know, he's going to win the election on election day and then the Democrats are going to steal it with mail in ballots because of the time that it takes to count those ballots. And so that, that time between when the networks love to do their horse race thing, you know, 37% of the vote in, we're going to call this for da, da, da. So he's counting on that. And because many states have a rule that you can't start counting the mail in ballots until election day, that means that the time frame, particularly with the exponential growth in the use of mail in ballots for this pandemic election, it just means it's going to take more time to count all the votes. And again, remember Paul Weyrich, I don't want everybody to vote. Our leverage goes up as the voting populace goes down. So if you can narrow who you're counting, whose votes you're counting, that is about power. It's not about democracy.
- [23:10]
Dahlia Lithwick
And Carol, I think it's really important for you to point out the thing you pointed out last time, the thing I know you've been pointing out for a long time, which is that it is quite enough in poor communities, in minority communities, certainly in the black community that has fought tooth and nail even to get to this place, that it is often enough to just depress confidence. I mean, sending people out to be, quote, unquote, poll watchers, as Rick says, you know, or as you said, that consent decree from 1981 is gone. That's its own thing to terrorize minority and vulnerable communities. But I think your point is deeper and it's really worth pulling on, sending out the message that your vote is not going to count. So don't even bother. That's a very storied tradition in this country as well.
- [24:02]
Carol Anderson
A key element of voter suppression is voter depression. So we have these suppressive techniques, voter id, poll closures, massive voter roll purges, eliminating early voting days, all of those things that just make voting harder. But what it begins to do when you begin to see these five hour lines, and the research is clear on this, it is designed to make folks think this is just too much and the word goes out into the community and the voter turnout goes down. But also what we know is that confusion and a sense that the whole system is rigged and my vote won't count and it doesn't matter what I do, all of that is targeted at key communities to again, lower the voter turnout. Rate. And I know I'm going to sound like a broken record here, because frankly, our leverage goes up as the voting populace goes down. If we understand that that's the frame, then all of this craziness, all of this mess, all of these lies that get spewed out there on a consistent stream begin to make sense.
- [25:22]
Dahlia Lithwick
And, Carol, I think it's worth drawing attention to the fact that it's not just about terrorizing black communities and Latino communities and poor communities in their polling places. It doesn't have to be armed poll watchers. There's also a long, illustrious tradition in this country of just telling voters not to show up, of telling them it's futile. And I just wanna point to the UK's Channel 4 News reporting this week that in 2016, the Trump campaign targeted three and a half million black Americans with negative ads about Hillary Clinton just to try to keep them at home, to keep them from voting. And I think it matters when we say, oh, you know, voters just weren't excited about Hillary Clinton, they weren't excited about Joe Biden. That if you are targeting those voters with messages saying, don't be excited, they suck, that too, is a form of election manipulation. And, Rick, I want to again hesitate to do this to you. I feel like you're getting all the garbage assignments on this week's show. But I do want to play, if I may, a little audio from Donald Trump's debate performance.
- [26:38]
Donald Trump
As far as the ballots are concerned, it's a disaster.
- [26:41]
Dahlia Lithwick
This is the plan, right? All mail in ballots are going to be hopelessly tainted. We've talked about that.
- [26:46]
Donald Trump
This is going to be a fraud like you've never seen.
- [26:48]
Dahlia Lithwick
Democrats want this count to go on for months and years and there's going to be no resolution.
- [26:54]
Rick Hasen
We won't know.
- [26:55]
Donald Trump
We might not know for months because these ballots are going to be all over.
- [26:59]
Dahlia Lithwick
As Carol noted, Democrats are going to cheat.
- [27:01]
Rick Hasen
They cheat.
- [27:02]
Donald Trump
Hey, they found ballots in a wastepaper basket three days ago.
- [27:07]
Dahlia Lithwick
So poll watchers are going to need to watch them carefully.
- [27:10]
Donald Trump
I'm urging my supporters to go into the polls and watch very carefully.
- [27:14]
Dahlia Lithwick
And as we just discussed, this whole project is essentially futile, so why bother?
- [27:19]
Donald Trump
It's a fraud and it's a shame.
- [27:22]
Rick Hasen
President Trump, it's a rigged election.
- [27:24]
Dahlia Lithwick
That's it. Seems to me those are the components, right? Pollute the water, sow doubt, sow confusion, depress voters from having any confidence. That's the totality of the playbook, right? I think we've got it there in four elegant points.
- [27:42]
Rick Hasen
So, yes, I think that certainly the idea is to scare people away from voting in person and by mail and cast doubts over the legitimacy of the election if Trump doesn't win. To what end, I think is what we have to ask. There's the benign story, which is not benign, and the scary story, the one that caused me to write that Slate piece saying we have a five alarm fire. The benign explanation is Trump knows he's likely to lose. He's reading the polls like everyone else and it doesn't look good for him. And so he's trying to have an excuse for explaining why he lost. Fake news was against him. They put in that fake story about his taxes and the election was stolen by Democrats and then he goes off, starts Trump tv, starts his government in exile. Whatever it is he does, I don't think he goes quietly, but he goes away. The less benign potential here happens only if we have a close enough election that it comes down to a state or two in the Electoral College. And in those states, there's something that could be pointed to as evidence of fraud or chaos that could lead to someone other than voters being the ultimate deciders of who gets those electoral college votes from that state. There are three actors besides the voters who might have a say here. Number one, Republican legislatures trying to exercise their powers to choose presidential electors in the event that no choice has been made. And we can get into the details of how that might work. Number two, the Supreme Court, you know, and the plays. I need Justice Barrett on the Court to be my deciding vote. Really shows you have confidence in your election outcome when you're hanging on the courts to hand you the election. And number three, Republicans in the Senate trying to not accept certain electoral college votes and that leading to some kind of political fight. So I think the idea is that all of this meant to discourage voting. If it doesn't work to discourage voting, but it makes it close enough, then there are lawsuits and political maneuvers that are possible to try to take this election away from the voters themselves.
- [29:46]
Dahlia Lithwick
And that's some of the Bart Gelman Atlantic piece last week that got everybody very alarmed. And I think I did want to ask both of you, it was a really interesting, well reported piece. But in some sense he was picking on this one thread, Rick, which is the state Republican controlled state legislators are going to pick the electors. And that's one of a hundred things that could happen if you just don't believe that you should be constrained by law. Right.
- [30:15]
Rick Hasen
I think Bart's story was, you know, it was a well reported story, but he put too much emphasis on that one possibility. And I think it's very unlikely. I mean, imagine what would happen to the Republican legislators who take the vote away from the people after the people have voted. I think they would face a huge political backlash, and that would be so delegitimizing that it would be a huge risk to do that. And, and if Trump has nothing to stand on, that's not gonna happen. If it's very close, then it is possible. And we've already seen moves by the Pennsylvania House to try to establish a commission with subpoena power to be able to go after an election investigation. But that's just one possibility of the way things can go. And this litigation is another possibility. And there's case pending now before the US Supreme Court, a petition challenging something the Pennsylvania Supreme Court did. And we should have a sense, I'd say, within the next week or so as to where the Supreme Court stands on these issues about the question of legislative power.
- [31:12]
Dahlia Lithwick
We'll be right back. And now let's return to our conversation with UC Irvine's Professor Rick Hassan and Professor Carol Anderson of Emory University. Carol, I don't want to leave this issue of poll watchers and intimidation without asking you because it's a separate. You mentioned the consent decree. Now, that is not operative. We have an election in which I guess, you know, it's Calvin Ball, there's no rules. And I wonder if you can just give us a little bit of context going back about what it means when one side is told. And this is, again, we think this started in the 80s. This did not start in the 80s. We think this started in the 60s. Oh, no, this did not. Can you walk us through just the historic move that it takes to say the other side is all in on cheating. It is on you as individuals to suit up and quote, unquote, watch the polls.
- [32:13]
Carol Anderson
This goes back to Reconstruction. And when the Reconstruction act of 1867 provided the right to vote for black men, the response was enormous, incredible violence at the polls to stop black men from voting. It was the way to send the signal. It was terrorism, the domestic terrorism that was so intense that it led to the law dealing with trying to take hold of the KKK and to break the KKK from killing black people for voting. This continues to go through, through the rise of Jim Crow. We have entire towns wiped out because somebody decided to vote, a black person decided to vote. We have World War II veterans killed because they cast a ballot. The, the use of physical violence and Domestic terrorism to tamp down, to dissuade, to block African Americans from voting is as American as slavery. But one of the things that also joins this thing that I think we ought to note is that what the Republicans did in New Jersey that led to the consent decree was to hire cops to be poll watchers. Now, we already know of the tense relationship between the black community and law enforcement. And so when you put cops at the polls, you are sending a powerful, nasty signal. And for this consent decree to now be lifted in the midst of a regime that says that Nazis are very fine people, in the midst of a regime where we have had a rise in hate crimes, in the midst of a regime where its racism is palpable. I've said before, all Trump had, he was not a successful businessman. And frankly, the new report coming in on his taxes really lays that out. So if six bankruptcies weren't enough, here it is in detail. Not a successful businessman, had no governing policy experience. What he did have was, was birtherism. He made his political mark on racism. And you see that then in the ways that he talked about. Remember in the 2016 election when he was down in Pennsylvania and he was encouraging his followers to go up there to Philadelphia and watch the polls to make sure they're not going to steal the election. This, again, is the white supremacy coursing through this language of massive voter fraud. And they're going to steal the election. That's who Trump is. And that, unfortunately, has been embraced by the silence and by the acquiescence of the Republican Party.
- [35:50]
Dahlia Lithwick
And, Rick, it's worth noting, just as a purely technical matter, that consent decree bound the Republican Party, not Donald Trump.
- [35:58]
Rick Hasen
Right. And if you go back and you look at the reason why the judge let this consent decree finally expire, it's been in effect since 1982, and it's been expanded and continued because of continued actions of the RNC and people working with the rnc. The judge said, well, the RNC wasn't involved in any of this stuff. And the case went up to the Third Circuit on appeal, and the Third Circuit affirmed and said, yeah, the consent decree should go away. And they dropped a footnote saying, yeah, Donald Trump engaged in a lot of voter suppression in 2016, but he's not the RNC. But today he is the RNC. He's taken over the RNC. I have to say I'm somewhat less worried about the RNC sending poll watchers. I mean, there's been these bluffs. I don't know if you Remember, either of you remember this? Back in 2004, Republicans threatened to send 35,000 poll watchers to polling places in Ohio, to Democratic areas in Ohio, and Democrats tried to block it. And the case went all the way to the Supreme Court. And Justice Stevens, at about 3 o' clock in the morning, just before the polls were gonna open, issued an opinion saying, I'm not gonna enjoy this, but everybody should behave. And no poll watchers showed up. The whole thing was a bluff to try to scare people away. I'm much more worried about the Proud Boys and others taking matters into their own hands. The kind of freelancing that can take place, the kind of voter intimidation acts of rogue people or groups, because that's what Trump was inviting in the debate. I think that the main reason he asked for poll watchers to sign up for the so called army for Trump on the websites is to collect signatures so they can spam their people more with election ads to get more money out of them. I think that's the end game. And that's a hopeful story, right? It's only a con. It's not really an effort to organize, you know, massive voter intimidation activities.
- [37:46]
Carol Anderson
Okay, so I'm thinking of a takeoff on Cher. On that one. Grifters, tramps and thieves.
- [37:57]
Dahlia Lithwick
It's only a con. That could be like the title of the last four years. No, no. You think it's malevolent, it's just a grift.
- [38:05]
Rick Hasen
Well, I've heard a lot of people who follow Trump say things like, you know, he doesn't really mean it when he says he's not going to accept a peaceful transition of power. That's just Trump being Trump. The point is none of us can get in his head, but we know what he says. You know, I'm not going to pull out the Maya Angelou quote that everybody pulls out. But what I am going to say is the messages are received by people as messages of suppressing the vote, whether that's his intention or not.
- [38:31]
Dahlia Lithwick
Go ahead, Carol.
- [38:32]
Carol Anderson
And you think about those messages. The man who in the Trump van mobile who sent the pipe bombs to the enemies of Trump, right? Cnn, the Clintons. I mean, just you think about the shooter in El Paso who has a Trump manifesto about the invasion because he's hearing the language coming out of Trump's mouth about this invasion just taking over America and he's going to stop it. Right? And the fact that the Proud Boys changed their emblems to reflect what Trump had said during the debate, you know, stand by it tells you they're hearing them because what he needs. And I know, Dalia, you've. You've heard me say this before. You know, he needs the violence. He needs the chaos. He is an abuser. You know, we. He's got these multiple pieces, but he isn't abusive. And. And. And that abusive behavior is to wear you down. It is to make you doubt yourself, to make you doubt your. Your instincts, to. To whittle away at your confidence, to break you down until you're nothing but what he says you are. When you stand up and say, no, son, you got to get out of my house, that moment when he realizes that you are done, that's when the abusers become the most dangerous. And that's where. The moment that we're entering now. But what we also know from these abusers is that if you capitulate, if you stay, you may not survive. You get him out of your house.
- [40:21]
Dahlia Lithwick
Who.
- [40:22]
Carol Anderson
You're like Tina Turner. I mean, it's going to be good. So this is where we are in this election. We are kicking this abuser out of our house. I think that the high voter turnout rates that we saw in the primaries are an indication. I think that the record, you know, then the 2018 midterms, which was a referendum on Trump, where we had the highest voter turnout since 1914. Wow. Where he's never gotten above 50% approval rating. All of that is saying to him, son, you getting out of my house. And all of that is leading him to. To letting this pandemic really run wild. You know, when. When Kushner's like, oh, those are. That's. In those Democratic states. We can just let it go. It's telling you so much about.
- [41:22]
Dahlia Lithwick
The.
- [41:23]
Carol Anderson
Depth of the malevolence that this regime is willing to rain down on the American people in order to stay in the White House. I've heard people say, I will crawl through broken glass. When you think about the ruling in Wisconsin, where the Supreme Court on April 6 is saying, you've got to have your. Your mail, your absentee ballot postmarked by election day, April 7, in order for it to count. And tens of thousands of those ballots had not yet even been received. And so people just stood in line. They were willing to face a coronavirus firing squad to cast their ballots. And so as much as he's debasing and degrading and threatening, my hope still is in the people. I'm seeing a people hungry for democracy. People who heard that debate, heard that mess coming through out of Trump, and were just appalled and know that we can't go on like this. And that's what we're seeing with the lawsuit saying, let my people vote. I mean, this is where we are right now.
- [42:43]
Dahlia Lithwick
I have so many things I want to say, Carol, but chief among them is thank you. I said to you before we even started. I often replay your little five minutes from election meltdown when I'm losing heart and you are like, this is how black people have voted forever. You get on the line, you have your battery pack, you have a snack. And I listen to that more than is healthy, probably. But I love what you're saying. And I would just note that is essentially what Joe Biden said in my view in the last few minutes of the debate.
- [43:14]
Rick Hasen
Show up and vote. You will determine the outcome of this election. Vote, vote, vote.
- [43:20]
Dahlia Lithwick
It's going to be hard. Covid's changed it. Someone might challenge it. It's not going to go easy. I heard him saying what you said, which is vote. The way black people have been largely voting in this country for most of their lives. It's just not easy anymore. And Rick, I want to talk about post election with you, but I want to frame it this way because I think you and I have both written about this. It matters that the Justice Department is on board with this. It is a non trivial thing that the Attorney General of the United States is saying the same stuff about thousands of illegal ballots and Nevada's going to be carried by fraud and we should not even, you know, we should start from the presumption that Nevada's cheating and it's not nothing that the Attorney General is on board. And I asked Don Eyre on this show a few weeks ago, you tell me what it means when the machinery of the Justice Department is in with the plan to suppress votes and to throw out votes. And he wouldn't answer. So I'm wondering, can you just talk a little bit about what is going to happen post election? And I think there's a disinformation piece I want to hear you about, but I also really want to hear you tell me if and how the DOJ itself steps into this mess, as Carol calls it, what does that mean when the DOJ has a thumb on the scale?
- [44:44]
Rick Hasen
Well, first let me say how much I miss Jeff Sessions right now. I'm not kidding.
- [44:49]
Carol Anderson
I know. Isn't that something? Because there was an ounce of integrity there, right? There is none in.
- [44:55]
Rick Hasen
You know, I've testified before Jeff Sessions about the Voting Rights Act. We're not on the same page, but I do think he was a fundamentally decent person. And the sense I get from Bill Barr is that he will say or do anything to protect this president and to protect the imperial presidency. And, you know, going on a show and saying it's bullshitting crap to claim that Trump might want to stay in office and that that's really what the leftists want in its projection, and then saying that in Nevada they're magically going to find 100,000 ballots for Biden and then repeatedly making these claims about fraud. He went on CNN in an interview and said, hey, there was a case of 1700 fraudulent ballots and turned out that there was not that case. And they blamed it on a briefing error. So either the guy is not very smart and I think he's quite smart, or he's being disingenuous. I think that's what's going on. Bill Barr is not going to stand up for justice. Whether the Justice Department itself is going to file. If there's a Trump versus Biden that looks like a Bush versus Gore, you can bet that there's going to be something that Bill Barr is going to file to try to support the President. I mean, we've gone from the place where the Department of Justice was sending observers down to Southern states, sending to Mississippi and Alabama and Louisiana and letting people vote, to now where one of the great impediments to voting rights is the Department of Justice. It is tragic, but what Barr is doing is downright dangerous because he is trying to use the machinery of the Department of Justice to try and help a president win election when even though it's part of the executive branch, the tradition of the Department of Justice is that it's not the President's personal or it's an impartial law enforcement agency there to back the rule of law. And it's exactly the opposite of what we're seeing.
- [46:43]
Carol Anderson
And think about the way that the DOJ issued this report on the tossed away ballots in Pennsylvania, and as they opened them, they saw that those that were in the trash can were for Trump. I mean, and this was just such a BS story that the folks in Pennsylvania are going, wait a minute. One, what is the DOJ doing? And why is it even talking about who the votes were cast for? And so this looked like a PR stunt to continue to gin up the narrative of voter fraud. And when the folks in Pennsylvania began to parse through this, it was a temporary employee who threw it away. The machinery worked the way it was supposed to. No harm, no foul, it got handled. But in the hands of Bill Barr, it becomes part of this nefarious scheme to undermine Trump's election. I mean, that's what's happening here. It is disgusting.
- [47:50]
Dahlia Lithwick
What Carol's saying is really important. What we are seeing in Pennsylvania, both with the privacy sleeve and throwing out those ballots and the claim that that massive amounts of fraud is gonna happen and that ballots are being tossed for Trump, that's all just ceding the challenge, right? That's the. Bush v. Gore is just saying. We're going to just keep saying this thing is happening and try to amass evidence of a thing that is not happening. We're building a case. But can you just talk post election for a minute? Because I feel like we have this fantasy that all this gets resolved on.
- [48:26]
Rick Hasen
November 3rd or 4th, you know, I mean, or 7th, even in the best of times, you know, it may take a little bit of time. If it's a very close election, I think Pennsylvania is the play. Maybe Nevada is the backup play. And the idea is why? Because if Trump is close to winning, Pennsylvania is likely to be the tipping state. Pennsylvania has a history of lousy election administration. Pennsylvania just had a quarter of its election officials quit because they can't deal with the stress and the problems. The top election officials in counties post election, if it's really close, we're going to see massive disinformation campaigns, both domestic and foreign. Like we've seen this Project Veritas trying to put voter fraud onto Representative Omar. I mean, it's shameless. And it'll just be the President's operatives using Pennsylvania to paint a picture of massive fraud and if not win leg. Although there'll be a legal attempt, it will be politically to make the case that the election was thrown in Pennsylvania and Trump really won. Even though the votes show that Biden has won. I mean, I think that is much more of a plausible nightmare scenario than kind of some of the stuff we talked about, like the cyber attack on the power grid in Detroit, which is still a possibility. You know, like all the things we worried about, these things could still happen. But, you know, that's the realistic worry. I think that's why you heard Biden, in the end, in response to the peaceful transition of power, say stuff like this is all about voting. And his message was not worry about Trump. His message was this clown, I think he called him a clown, will be escorted out of the Oval Office. Don't worry about that. You need to vote, vote, vote. And I think now's the time to pivot and say the most important thing to do right now is is make sure you're registered to vote. If you're listening to this podcast, it may already be too late. Depending on where you live, make sure you're registered to vote. Vote as early as you can and if in person voting is something that makes sense for you early, you go ahead and do that. I think your last choice is voting on election day in person because I think that is when there may be the biggest problems. If you are voting by mail, make sure that you check that your ballot has been received. In a lot of states you can track your ballot. Not true everywhere. 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. My fervent hope is that in early 2024 we'll start this series again and talk about how nothing has changed. But at least we didn't lose our country in 2020.
- [51:06]
Dahlia Lithwick
Carol before we wrap, I want to talk about something that we don't talk about nearly enough. And I certainly don't talk about nearly enough. And I want to do that by way of reading to you from an anonymous letter that I got from a reader this week. This is what they said. I have voted in every national election since 1992. I voted absentee from abroad. I used to be one of those people who cheerfully wore an I voted sticker. Advertising having done my part, voting has always been a responsibility and a privilege I took seriously. This year my vote is at risk of being lost because with all that I have been dealing with, I haven't had the wherewithal to register or to get an absentee ballot. I might still be registered where I lived in 2016. I don't know. I know that I don't have an absentee ballot or any way of returning to my last polling station, probably ever. The writer goes on to say, I wasn't always this person. Within most of my circles, I try to maintain the facade of being a successful professional, of being a person with a permanent residence. I try to maintain that facade with myself too. Every day I tell myself I'm going to go get my ballot. I have to. I can't not vote in this election. Every day I fail. And then they conclude this letter by saying, today it hit me that this might be a larger phenomenon. This year's equivalent of driving an old lady to the polls might be calling your friend whose life has fallen apart and holding their hand while they navigate navigate voter registration websites. And I I think I just Want to ask you because I assume Somehow knowing that 200,000 people have died because of COVID and innumerable people, including people who listen to this show, have lost their jobs, are struggling with childcare, are struggling to take care of parents, that people just aren't where they were in 2016. And that for some of this, the drumbeat of hoops to jump through and the paralysis around just getting through the day is overwhelming. And I wonder if you would be so kind as to answer this letter writer who I should note, by the way, Carol wrote back to me just two days ago to say they got themselves registered.
- [53:25]
Carol Anderson
This is hard. Again, this is an abusive relationship. But I guess, let me put it in the. In the terms of African American history. Imagine being enslaved and having virtually no control over your life, your family, your labor, your body. But you know, and it's designed to break you. So much in that system was designed to break you. Imagine the strength that you pull upon in the midst of a system designed to break you, where you say, son, you don't know my name. And that vision, that fight in the midst of, of everything that degrades and debases you. You find you pull upon community, you pull upon cultural power, you pull upon your spirituality, and you pull upon hope. Hope is powerful. It is without hope that the abusers win. It is with hope that you find the transformation in this system. This is why we don't have chattel slavery, because the enslaved refused to be enslaved. This is how Jim Crow broke. Because those who were deemed as second class citizens or, or lower said, son, you don't know my name. And where we are right now, we are being told that we are nothing. And all of those people who are out in the streets, all of those people who are phone banking, all of those people who in the midst of a pandemic where we have had over 7 million people contract the disease, over 200,000 die. Said, Son, you don't know my name because I have a vision of a much better America. I have a vision where we have, wow, we trust the scientists and the data that can bring this thing under control, where all of the enormous resources of this incredible nation are used to empower and support the people. That vision, where we have a real justice system, that vision is based on hope. And that hope is based on work. And the work that we're doing now is to reclaim this democracy. It can be done. It will be done. We saw that in 2018 as the first step. And the, the ways that we're seeing in that election up in Wisconsin. Wow. That move that they voted in, a Democratic judge on the Supreme Court, we're seeing that with a massive voter turnout. We're seeing with people banging on the doors in Louisville, let me in so I can vote. We're seeing it in the people in the five hour lines here in Atlanta in the midst of a pandemic where Georgia's in the top 10 in COVID 19 saying I will be heard. That's what we pull upon. We pull upon that history and that strength and we get the America we deserve. We get the democracy we deserve.
- [57:28]
Dahlia Lithwick
Rick, do you have anything you want to add? No, no, I'm just going to sit here.
- [57:34]
Rick Hasen
I will just say as the last time that we had Carol on, I find her tenacity and her wisdom to be a source of strength. And we just need to take a deep breath and put our heads down and push through because there's no alternative to doing that if we want to keep our country as a functioning democracy.
- [57:58]
Dahlia Lithwick
Rick Hassan teaches elections law at UC Irvine. Carol Anderson is the Charles Howard Candler professor of African American Studies at Emory University. My goodness, the two of you, this has been a ride. Thank you for the last conversations and for this one. And take care. Thank you.
- [58:20]
Rick Hasen
Thank you for keeping a spotlight on this. So thank you.
- [58:25]
Carol Anderson
Thank you. Thank you, Dahlia. Thank you, Rick.
- [58:32]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so very much for listening and thank you so much for your letters and your questions and your notes and your thoughts. You can always keep in touch@amicuslate.com you can also find us@facebook.com Amicus Podcast. We love hearing from you. Today's show was produced by by Sarah Burningham with research help from Daniel Maloof. Gabriel Roth is our editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus next week. Until then, hang on in there and please vote.