The Courts Can’t Save Him

Hey everyone, this is Leon from Fiasco and Slowburn.

On today's episode of 5-4, Peter, Rhiannon, and Michael look back at the results of last week's election.

The people of this nation have spoken,

they've delivered us a clear victory.

They scrutinize the complaints of voting irregularities that the Trump campaign has attempted to bring forward since November 3rd.

Millions and millions of people voted for us tonight,

and

a very sad group of people is trying to disenfranchise that group of people.

They also discuss the state of play in the Senate and what the Democrats' failure to achieve a majority means for the prospect of court reform.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4,

where we dissect and analyze the Supreme Court cases that have left America flailing and helpless, like an outgoing president who is emotionally incapable of admitting defeat.

I am Peter.

I'm here with Rhiannon.

Hi.

Good morning, Sunday morning.

And Michael.

Hey, everybody.

Oh, man.

This is a special episode, you know?

Woo!

The election was a few days ago.

It has now been called by every major media organization for Joseph Robinette Biden.

Robinette.

And I think I speak for everyone when I say this was like a weird one.

Yeah.

Yeah.

We're a Supreme Court podcast.

We're going to get to the implications for the court and courts generally in just a few.

But first, general reactions.

I think for me, in the beginning, this felt like a loss.

A, the initial results looked bad.

He lost Florida immediately.

Right.

Florida being on the east coast really fucked the vibe of the whole thing because that was coming coming in early and I just thought we were fucked.

Right.

Even once the results started looking a little better, Biden winning is moderately good news.

Trump losing, fantastic news.

But I think having it be this close, losing seats in the House, not winning the Senate, all of which is very embarrassing.

Together, it kind of adds up to what I think is generally speaking bad news for the Democrats and maybe even worse news for the American left.

Without the Senate, McConnell's going to block everything, no real hope of substantial progressive legislation.

And the Dems may be at higher risk of getting wiped out in 2022 and 2024 because they won't have any accomplishments to hang their hat on and they won't have anti-Trump animus to drive turnout.

And that was sort of dragging me down.

But as the days have passed, I've been feeling better, mostly because we've all gotten to bear witness to the pathetic whining of Donald Trump and his cronies, who have never sounded more like losers than they have in the past few days.

Yes.

It's glorious.

Many dirty diapers.

All these fucking morons who spent the past four years like openly gloating and wearing the hats and flying their fucking Trump flags on their 10-year payment plan boats, these people are now like exclusively in two camps.

Most of them are screaming about widespread fraud without anything really resembling solid evidence.

And the rest are sort of shifting to a very somber Gore Lieberman 2000 style, like calls for counting all the votes, which is just

fucking incredible.

Go fuck yourselves.

Go fuck yourselves, you fucking losers.

Yeah, either way, I love this song.

I'm jamming.

Yeah, it's good.

It's fantastic.

It's fantastic.

I really feel like this is one of the first times, if not the first time, in his political career, that Trump's bullshit has really run up against reality in a meaningful way.

He can still bullshit.

He's still tweeting that he won, but he can't bullshit his way out of it.

Right.

Barring something really unprecedented.

At some point in the next three months, he has to admit to himself that he's got to pack up his shit and leave.

Right.

Like world leaders around the globe are just like congratulating President-elect.

Right.

At some point, you can't ignore that.

Like it's happening whether or not you want to.

Yeah.

I heard stuff about the Secret Service and U.S.

Marshals and other sort of federal law enforcement.

Just going about the normal thing.

Right, going about the normal thing, doing what they usually do in preparation for a presidential transition, but in addition, maybe prepping themselves also to do a little eviction.

Yeah.

Oh, really?

Yeah.

If Trump refuses to leave the Oval Office, that's a direct threat to Joe Biden, and the Secret Service has to kill him.

That's how it goes.

Those are the rules.

I don't make them.

I'm not for a little procedure, bitch.

I'm going to call into the FBI with a hot tip about a plot against the president.

There's a plot against the president, and it's coming from inside the house.

In terms of like the election week,

the real monkeys Paul, where we talked about how cool it would be to have an election week, and then we had an election weekend.

Right.

It's really awful.

You know, I'm kind of a data nerd.

Like, I taught math at one point in time in my life, in a past life.

And so, like, I felt very comfortable about this Tuesday night when the AP called Arizona.

And I certainly Wednesday morning, I was feeling very good.

So, for this whole week, I think there was this very frustrating divide between me and like a lot of my family who were freaking out and who did not have this sort of sense of calm and peace that I did about where this was going inevitably, because things seemed very uncertain.

And the people to blame for that are, obviously, the Republican Party in Pennsylvania, in Michigan, in Wisconsin, who rebuffed efforts to start pre-canvassing mail-in ballots because they thought they would benefit from this period of uncertainty, because they thought that that would create the conditions for legal challenges and delegitimizing mail ballots.

That while the vote was changing several days after the election, this would be a chance for them to like make a case for throwing out mail ballots.

And we had to live through that stress.

And also later on, it was some bullshit from the networks.

And I think they should take some heat for that.

They sat on this for a long time, well past the point where their own people on air were basically like saying, like, we haven't called it, but it's pretty much over.

Cornaki is sitting there like begging the decision desk on air to like.

finally just fucking call Pennsylvania.

So he could go to sleep.

Yeah.

And it was irresponsible.

It was a disservice to its viewers.

It was a disservice to the public.

Yeah.

And it dragged out this period much longer than it needed to.

The explanation was like, it will let the conspiracy theorists say that the votes aren't getting counted and all this shit.

The conspiracy theorists are going to say whatever they want.

What we saw happen, it was what inevitably would happen once they called it, which is an outpouring of support and normalization of President-elect Biden from world leaders, from other institutions, things that will normalize the loss and start from the streets.

Yeah.

Start moving us to the next phase, right?

And they delayed that at least 24 hours, probably 36.

But I'm glad they waited for like a Saturday afternoon because it was just good vibes.

Yeah, that way we could really get lit.

Yeah, no, I spent the week absolutely way more stressed out than I needed to be, even though I knew those objective realities and objective, like certain eventualities, right?

I mean, you guys know I was checking in with you, right?

Because I would be like, Michael, can you calm me down?

Yeah.

Michael, what's going to happen happen again?

Can you please remind me?

Like, can you please remind me that it's okay?

And yeah, I put a lot of that on the media.

I don't understand why, I mean, I do understand, right?

Because it's for ratings.

It's for making it look like it's close.

It's for making it look stressful.

But in terms of the media talking about it, like, oh, Trump has gained on Biden in this state, or, you know, Biden just lost a lead in Florida, in whatever, in Arizona, in Georgia, when that's not, there's a total number of votes.

It's already there.

Right.

Right.

It's not like an actual foot race.

Right.

We're not watching people race right now.

The votes are done.

Right.

Right.

There's no more coming in.

There's a total, and we're counting them.

Yeah, but you have to imagine, I sort of agree in a vacuum that it does seem like the horse race ongoing coverage of the election is awful.

But I need you to envision the alternative, which is that you're just stressing out for a week and then, like, the next Sunday, CNN's like, Trump wins.

And you're like, oh, fuck.

It all hits you at once.

You know, I don't want that.

To be honest, my emotions were so up and down that, like, right now, the memory of this past week isn't even super there.

And I wonder in years to come, like, if I, if I'm trying to recall this awful week, if I'm just going to black it out because it's too stressful and wild.

It's very surreal.

It was.

Yeah.

So, you know, we don't want to get too deep into the politics, but to me, politically, the real lesson of this election was that we are in like a new era of politics and political engagement, even to a greater extent than everyone sort of understood.

A lot of key assumptions about politics appear to be just like plainly untrue at this stage in history.

And a big one that's long been held on the left is that most people lean left on key issues, but are not like politically engaged.

And that if you could just engage them, the left would win a lot more.

And we've even talked about that here in the context of this election, that if you really drove turnout, Trump's loss would be sort of inevitable.

The more people you get out, the larger the margin becomes.

But I think that the 2018 midterms and Biden's underperformance make it clear that that's not inherently true.

Right-wing engagement with politics has reached a point where it's at a sort of perpetual fever pitch and is capable of like rising to meet the effective get-out-the-vote efforts of the left.

Last year, Biden said that Republicans would, quote, snap out of it once Trump was gone.

That's like even more clearly wrong now than it was when he said it, because as many people have observed, this was in a lot of ways a victory for Trump-ism, a narrow loss in a year with a global pandemic, tanked economy, racial tensions, and riots.

Every single person's lived experience of this year was miserable, and they barely lost.

Barely.

Right.

I think there's only one way to explain that.

The right wing's engagement in politics is driven by a vast and deep network of propaganda that consists in large part of outright misinformation.

Yeah.

We all knew that to some degree politics had changed with Trump, but it was still assumed that like things that really impact people's material reality, like the economy tanking, would hurt a sitting president badly.

But I think that this sort of deeply entrenched propaganda network has in a lot of ways changed people's like their day-to-day experience of reality.

It colors their perception so deeply that their own literal suffering is reframed as anger and grievance and redirected at predefined outgroups.

And the perseverance of that sort of manufactured reality in the face of real and tangible failures of the state is a victory for Trump's brand of reactionary politics.

And I think the only lingering long-term question to me is whether that politics can survive without Trump himself.

Right.

Right.

And so something I've been thinking about, and it's like I'm reticent to do like too much in-depth analysis right now when we don't even have complete vote counts and

demographic data, what the electorate looked like, and all that stuff.

But at a preliminary glance, at least, Wisconsin seems to have been much closer than you'd expect given its demographically similar states, right?

Like Michigan, Minnesota, Pennsylvania.

Those states generally, like they're sort of akin.

They sort of move together.

And the question is, why is it like much closer than Pennsylvania is going to be and Michigan was?

And there's one explanation that sort of sticks out, which is that it had like an awful COVID outbreak in October, like the worst in the country since New York.

And going into this, you would have thought that would have benefited Biden.

But like, how do you even reconcile the idea that like having an awful COVID outbreak in fucking October helped Trump and the Republicans?

Like, what do you even do with that information?

I don't want to say this is definitely what happened.

I think it's like too early to state that with certainty, but it's concerning.

It's like something that's been on my mind a lot the last few days.

I don't even know how your politics goes forward in light of that.

Like, that's something that requires a lot of soul searching and a lot of like reflection on who you can reach and how you can reach them.

Yeah.

That was like one big thought I've had.

Another is that like it's very hard to like disentangle Biden's performance from the Democrats' performance.

Democrats did worse than Biden.

Biden, when all is said and done, it seems like he's going to have a result that if he told me a year ago, Democrats would win by like five points nationally and get three interelectoral votes, you'd be like, all right, great.

That's a successful campaign.

But what do you do with that when they lose ground in the House and they only like pick up one seat in the Senate, right?

They could still pick up two more.

Like I don't want to write off Georgia just yet.

I think for sure Warnock could win that race.

Ossoff has a harder challenge.

But you know,

in these conditions too,

anybody who has claims they have answers right now about where to go, who's to blame, what to do next, I think is full of shit.

But I'm concerned that like those answers are going to be hard to come by.

And there's a lot of uncertainty, like Peter said, about what this is going to look like when Trump is no longer a public figure, whether crazy QAnon freaks are still turning out, but Democrats are not, or vice versa, or what.

It's just a period of a lot of uncertainty.

Yeah.

Yeah.

And I think a lot hinges on what kind of role Trump takes after this, right?

Like people talking about him, you know, leaving the public space and not being a public figure anymore.

This man isn't going to give up like the attention, right?

Which is what drives him, the attention and the power.

So as a media figure, starting his own channel, whatever that is, he's still going to be around.

And I think that it will depend a lot on what he builds his role as.

You know, Peter made the point about Biden saying last year that Republicans would just snap out of it if somebody else wins.

Look, nobody snapped out of it after eight years of George W.

Bush and then Obama.

That's not how people's politics works.

Just, you know, the next day they wake up and they're like, okay.

It's also not how cults work.

Right, exactly.

That's not how, in particular, Trump's base works.

You know, I was watching especially the early results come back, seeing that this race was going to be closer than any of the polls indicated, all of that stuff.

I think it's shocking to a lot of us that Trump, you know, actually grew his base, got more people to vote for him.

Michael, I think you're right that like there isn't a lot of clarity about what to do to address that growing base.

But I think you have to start with the understanding that these people in their politics approach politics, approach government from a completely different premise.

Absolutely.

We're not talking about Joe Biden will do better on this policy than Trump has been able to deliver for you.

They're not at that level of engagement with politics.

Where they're at is all of this is corrupt.

I reject all of it.

They're all crooks.

Right, exactly.

They're all crooks.

And so I have to choose the crook that speaks to me the best.

Yeah.

And they're living on a diet of fucking Facebook posts.

Right, exactly.

It's a completely different type of media consumer than we've seen in political history.

Right.

Yeah.

You know, when I worked in campaigns, like we often had like vote targets, like educated guesses about like what we need in a specific precinct or a specific county to win.

And I would not be surprised if a lot of these losing Democratic campaigns like hit their vote targets.

Right.

Biden basically matched Hillary's turnout in Miami-Dade County, which was like his big loser county in Florida.

But Trump got 200,000 more votes there.

There are 200,000 people in Miami-Dade who spent four years living in Trump's America and were like, fuck yeah, now I'm ready to vote.

Now I'm coming out and I'm voting for the president.

I want more of this, baby.

They were mad about LeBron supporting Biden.

It all makes sense.

But I think at the same time, it's really important.

You know, it's a little early to bring it into the conversation, but in Florida, you know, a referendum on the minimum wage, raising the minimum wage to $15 an hour, passed in Florida with over 60% support, right?

Yeah, which is a policy supported by Joe Biden.

It was on his platform.

I believe he even cut ads about it.

Yeah.

These are the same people voting for, you know, Trump on the one hand and also to raise the minimum wage to $15.

Fucking crazy.

If that's what I'm talking about, there's a disconnect there.

Right.

A massive failure of the Democratic Party.

If the distance between the policy that is on their platform

and the votes garnered by the actual candidate, if there's a whatever, 15-point gap almost,

that is just a massive political failure.

Exactly.

The one thing before we start talking about the legal shit going on, I want to end on a slightly optimistic note.

Initially, I was very

pessimistic about the future, but you can already sort of see that there's a potential rift in the GOP between Trump and non-Trump.

Yes.

If Trump refuses to concede in any meaningful way and the GOP tries to move on, you can see like a real material divide forming where the GOP is sort of split between these party loyalists and Trump loyalists.

Trump probably has the upper hand in that fight, frankly, but hard to imagine that a real political split in the GOP wouldn't be a disaster for them.

If they don't sort it out by the midterms, they'd be fucked.

Right.

All right.

Let's talk about the law.

Sure.

Obviously, the major concern that we voiced going into this was that, like, maybe

it's about to be Bush v.

Gore 2.0.

We've talked about that extensively.

And legal challenges are ongoing.

And so the question that we keep getting asked is:

is there a chance that Trump can wriggle his way out of this through the courts?

And I think, to be flatly honest, the answer is almost certainly no.

I think that there is less than a like 2% chance that you even see a really meaningful challenge get to the Supreme Court, let alone that he wins one.

And that's a real 2%, not like a quinnipiac 2%.

Right.

At the end of this, can you guys explain to me like why polls are so wrong?

Yeah, we can talk about polls being wrong.

I think the real answer is that the current system for polling is just like, well, what if we sent everyone a fax and they fax back their preferred president?

So it's like in the outreach, like they're not reaching people.

A buddy of mine on Twitter was like, it's obviously they're undercounting, polls are undercounting Republicans.

He was like, what they should do is add the polling questions to telemarketing scams.

So it's like those Indian guys that call you claiming that they're Tom from Microsoft.

And then they throw in, and who are you voting for?

And those people will be like, Trump, but what is wrong with my computer?

I think that will work.

Yeah.

So look, the reason that we can be so confident that the courts aren't a realistic avenue for Trump is that there's only really two ways to use courts to win an election.

One is, like in Bush v.

Gore, sue to stop the vote counting.

That's not going to work here because Biden is ahead across all of the relevant swing states.

The other option is to find a basis for challenging batches of ballots in the hopes that they are thrown out.

That is still technically on the table, but the GOP just has not found a colorable legal hook here.

And that's mostly because the margins are just too big.

The states appear to have just generally done a good job running the elections.

And as a result, Trump's team has been litigious to some degree, but it's been really sort of ticky-tack shit that won't really get them anywhere.

Most of the Republican complaints about this stuff, and I've been, by the way, digging very deep into Republican media, as you guys know, for the past few days, just to see what they're saying.

Most of it is just sort of like almost conceptual.

They have a general sense that some fraud was occurring.

Right.

Like they have no exact idea as to what that entails or how it's done.

Right.

And of course, they can't articulate how they know that it's happening.

But they know that this can't be right.

Yeah, that's it.

They sort of just parrot the Trump line that mail-in ballots are shady, and then they latch onto every sort of error or like singular instance of fraud that they can as evidence that something is afoot, even though they have no real idea what that is.

In some, as always, just the biggest fucking bunch of morons on the planet.

No, that's it.

And that tracks with this idea of a general sort of skepticism.

Like, you can tell me whatever the numbers are, but I just don't think it's right.

That's how the Trump base like reacts when you talk to them about policy, right?

Like, whatever it is you're telling me, I just think that's wrong.

Yeah.

I think it would be useful, though, to just sort of go state by state and touch on some of the legal challenges and explain why they're all pretty much just dumb bullshit.

Yeah, yeah.

So, the most substantive lawsuit out of the Trump campaign so far,

probably the one in Nevada.

So, the Trump campaign there have alleged that thousands of ballots cast in Nevada were cast by people who are no longer living in this state or people who died.

And they have not, like up to this point, provided any real evidence of fraud, except

for one

78-year-old woman who claims that she showed up at the polls on Tuesday on election day, but she was told that her vote had already been cast by mail.

And she was told that the signature on the mail-in, it matched her signature.

She was offered the opportunity to challenge the ballot, and she declined doing that.

So, if you're following the only specific instance of alleged fraud in Nevada that they have is definitely just some lady who forgot that she voted by mail.

100%.

The only reason that this has any sort of teeth.

So, first of all, they are challenging batches of ballots, and that's like sort of important.

It's definitely not going to be enough at this point to flip Nevada, but that was sort of like what made it a departure from the other states.

The other thing is, people do vote from out-of-state when they shouldn't.

That happens all the time, right?

People leave a state, and especially if they wanted their vote to matter in a swing state, that's never going to flip Nevada.

They're never gonna be able to actually track this stuff down.

They're walking into like a PR issue, too, right?

Because, like, there was a thing that leaked that they had like called out specific geographic tags or whatever.

That turns out they were for like armed services posted in Europe and Asia and stuff.

And so they're gonna sit here and like start saying that the military can't vote.

The collateral damage here, right?

If they start trying to challenge everyone who voted out of state, is gonna be not pretty for them.

Right, exactly.

The thing I think to keep in mind when we're talking about all of these legal challenges is

two things.

One is that they are dog shit stupid and the Trump campaign is getting dunked on in court, left and right.

That's great.

But number two, the other thing is no one of these lawsuits or even if they like won altogether, it just doesn't matter.

The numbers are not there.

It's not going to change the result.

Right.

Okay.

So there's no pertinent legal challenge in Wisconsin, right?

The bottom line there is there's going to be a recount.

The Trump campaign has requested a a recount, although Wisconsin law requires that they pay for the recount, which costs $3 million.

And the rumor is that they have not ponied up.

Broke ass, sorry ass, punk ass, dumbass bitches.

Right.

Hello.

Also, it was a 20,000 vote margin.

A recount changing that would be unprecedented, just completely.

I mean, Florida is a much bigger state.

Their recount changed like a thousand votes.

Right.

Right.

And there was a recount recently in Wisconsin for Scott Walker, and it only changed a few hundred votes.

Right, right.

To get into the five-digit range on a recount in terms of the margin of error, it's unheard of.

It just doesn't happen.

So Michigan is a done deal.

It's interesting because I think a lot of people think that Michigan was close just because of the way the Trump campaign and the news media played it.

The margin in Michigan is like over 150,000 votes right now.

Yeah, it's comfortable.

Yeah.

You know, there was some drama there, essentially when Michigan began to swing to Biden.

This is when Republicans started freaking out.

And there were calls for Republican poll workers to converge on the Detroit polling locations to watch the count.

Trump sued, claiming that his poll watchers weren't being granted access, which the judge quickly surmised was bullshit and threw out.

The GOP poll watchers then engaged in a number of bad faith attempts to challenge ballots, including at least one request that a ballot be thrown out because it looks sticky by some poll watcher.

I love that.

Yeah.

At some point, the GOP GOP strategy openly shifted to challenging literally every single ballot.

So, like, poll watchers would be like, I challenge that one.

I challenge that one.

And they would all have to be reviewed.

All of this slowed down the count, but did nothing to change the outcome.

Michigan was also the location of a reporting glitch that, like, briefly showed Biden getting over 100,000 votes without Trump getting any, which was quickly corrected.

But of course, corrections mean nothing in the right-wing media world.

And that is like still being talked about in right-wing circles as like evidence that some fraud is occurring.

And I think this brings us to Pennsylvania, which is where most of the drama is currently.

You know, most of the substantive issues in Pennsylvania unfolded before the election, which we've talked about

when the GOP challenged late-arriving ballots.

As a result, while the Supreme Court didn't rule one way or another on whether they would toss out the late-arriving ballots, they did request that the state set aside those ballots in case a later ruling on their validity was necessary.

But the gap in Pennsylvania is too big for those ballots to matter, so it's sort of moot.

And despite a whole lot of whining about unfairness, Trump's campaign hasn't really found another substantial legal hook in the state.

Right.

And I think this kind of highlights that like Trump's legal operation writ large prior to the election was really effective.

And it was, you know, everywhere.

It was in a bunch of different states, literally hundreds of lawsuits.

They racked up a ton of wins.

very hackish job by a lot of Republican judges coming down on the side of the GOP, time and time again, on the side of the Trump campaign.

Right.

You could see it was a concerted effort, right?

Like they were organized.

Right.

But the flip side of that has been that they essentially put everybody on notice about what they were planning to do after the election.

And as a result, this has been one of the best run elections in memory, leaving them almost nothing to challenge.

And two,

left a situation like in Pennsylvania, where like the best ballots for them to challenge have been segregated.

If all those late-arriving ballots had been mixed in and counted with the rest of the mail ballots, you know, the GOP could now be arguing, hey, those shouldn't be counted.

And we could have a big debate about, oh, you should have said this months ago, weeks ago, whatever, and that should be barred.

And that we know how many arrived and it wouldn't have made a difference.

But that would all be hypothetical.

You could see how this would

make this seem not legit.

But instead, what they've done is helped Pennsylvania do this in a way where the results are unassailable.

Yeah, yeah.

So, their over-litigiousness pre-election fucked them for all of these challenges in the past week after the votes were in.

Right.

You know, they did their best to cheat, but what are you going to do when you're cheating and your opponent's beating you?

Right, well, right.

That was that.

We gave it the good college try.

I do think who deserves some praise are, one, all the people involved in the actual administration of these elections.

And I think the Democratic Party made like a real big effort in the last few months to educate voters about

the place to vote and when to do it.

As a result, there are very few ballots even in the segregated population in Pennsylvania because most people voted on time.

Or if their mail ballots were late, they went and the cast provisionals in person instead.

And like, people got it right.

And then the states did their part to like count right.

And as a result, Trump has nowhere to go.

Yeah.

You know, the courts aren't going to be very receptive to their arguments.

Yeah.

The campaign also publicly claimed that their poll watchers were not being given access to the counting in Philly.

Unfortunately, that blew up when a federal judge asked their lawyers straight up if it was true, and they had to admit that it was not.

Yeah, exactly.

They have nothing.

They're like, literally, like, they're not letting us in.

Well, are they really?

Well, they're letting us in.

I got to admit.

There are some developments in Pennsylvania because, again, I'm deep in like the Breitbart world right now.

The current move is that they have a supposed whistleblower who works for USPS who is claiming that he overheard someone planning to backdate mail-in ballots that arrived late, which of course would be against the law.

They also stated in their press conference at a landscaping company off of I-95

that they have identified a few dead people who voted.

Like, one lady apparently died on October 22nd and

then applied for and cast a ballot after that date, which, if true, is probably evidence that like

her grieving husband or something like cast a vote on her behalf after she died, which is illegal, but like that's not going to give Trump Pennsylvania.

Right.

What I love about this is like,

okay, minus one Biden.

Right, right.

What do you want?

Okay.

that doesn't do anything, bro.

It has long been the Republican position.

This is like no joke.

They think that Democrats are just like rounding up the names of dead people and having them vote, like in bulk.

Right.

They have no real basis for believing that, but every little story like this adds to that narrative.

They also claim that Joe Frazier, the famous boxer who died in 2011, voted this year.

And like, my genuine best guess is that they saw a dude named Joe Frazier had voted, and they were like, Joe Frazier, the boxer?

That's gotta be that guy's dead.

My best example of how far-right media is handling this, like the bright parts of the world, is that there's a story about a, I told you guys about this, a Pennsylvania mailman got caught on the other side of the Canadian border with mail, which is against the law.

That's against their rules.

You can't take mail to another country, I guess.

And he claims that he just took a wrong exit.

But one way or another, he had 800 pieces of mail.

Among those 800 pieces of mail, there were three absentee ballots.

So the headline on like every right-wing website was like, USPS worker caught bringing ballots across the border.

And it's like, are you fucking kidding me, dude?

Three ballots.

This shit is important to some degree because what they're implicitly accusing Democrats of is a fraud scheme on par with like the greatest crimes in history in its complexity.

And what they have as evidence are these just like little bullshit instances of what maybe constitutes voter fraud.

Not to mention that like Democrats didn't win the Pennsylvania state legislature, for example.

Right.

Meaning that if there were hundreds of thousands of faked ballots, many of them would have had to have votes for Republicans on them.

Right.

Yeah.

It doesn't seem like that would have been the move.

Right.

No.

I would have gone big, especially given the polling.

Yeah.

Right.

You had like all this polling information and all this like expectations.

Democrats thought they could win 53, 54 Senate Senate seats.

Yeah.

Yeah.

Instead, we're like praying that they can like by the skin of their teeth get to 50.

Don't you think we would have given ourselves a landslide?

Like why?

I do think people have trouble with orders of magnitude.

The difference between like three ballots and 100,000 is like the difference between zero and 100,000, right?

Like they're just not even in the same universe and people have trouble like even comprehending what 100,000 ballots would look like and what it would take to falsify that.

I completely embarrassingly relate because I don't understand the difference between a million and a billion.

But that's like a human thing.

You don't have to be embarrassed.

That's like a normal human.

Yeah, that's normal.

You're not supposed to be able to come to the bottom.

Well, this part is embarrassing, which is that for a long time, many years, I thought Justin Bieber was a billionaire.

You moron, he's only worth $300 million.

So Georgia.

Georgia is currently about a 10,000 vote race, tightest of the outstanding states, and as such, seems seems like a plausible target for litigation.

But like elsewhere, so far, the GOP has been able to do nothing but stir up rumors about like technical glitches that they found suspicious.

Yeah.

Worth noting that just yesterday, right-wing media went nuts about a reporting glitch in Georgia, and then they fixed the glitch, and it turned out the glitch actually helped Trump, and now Biden is up by even more.

The Trump campaign filed a lawsuit about ballots that arrived after the election deadline being counted.

That was dismissed pretty quickly when multiple election officials testified that they had actually been received on time.

There's stuff being fought about in Georgia.

I haven't seen any legal action that would be enough to challenge the legitimacy or validity of the 10,000 ballot gap that now exists between the candidates.

The Georgia lawsuit, that was the one where the evidence was like somebody who was like, oh, those came in late.

And then when they had to swear that after the other, they were like, well, I think that you know, yeah.

I'm actually not sure if those came in late.

They had an aura, a late ballot aura about it.

You know, now that I read that this says under penalty of perjury, I'm not so sure that it's a very important thing.

When you say penalty of perjury, can you be more specific about the penalty?

Yeah, this is a part of a trend in these lawsuits where someone will like speak up in conservative media.

Like, I have witnessed this wrongdoing.

So the lawyers descend on them and they're like, will you swear to that?

And they're like, Oh,

um,

well,

maybe, uh, you know, when you put it that way, right?

Yeah, like Trump is like, they're desperate for anything to get into court right now, but that's what happens.

They're like, okay, let's fucking go.

And then they're like, well, I don't know.

I mean, and it was like 53 ballots.

Yeah.

It wasn't even that many.

I mean, there's just nothing here.

And I think that is the story across these states.

They've just been finding these tiny little things, but they are not going to set the legal groundwork to find a hook to investigate tens of thousands or hundreds of thousands of ballots across these states, let alone to change the outcome by that sort of margin.

It's just not really possible.

There is one case in Pennsylvania that just popped up Monday night that does seem to be a little bit broader in scope than some of the more ticky-tack cases that Trump has brought thus far.

And the case is basically saying that mail-in votes are subject to sort sort of less scrutiny than in-person votes, and that's unconstitutional in violation of the Equal Protection Clause and the Electors Clause.

And what they're looking for is a holding that mail-in voting is unconstitutional.

They're never going to get that.

But this is sort of the first lawsuit that is broad enough in scope that it feels like it would be at least theoretically challenging the validity of tens of thousands or hundreds of thousands of ballots.

I don't think they're going to get there.

I think it's incredibly frivolous bullshit.

But it is sort of a lawsuit of the size you would need to start turning around an election that Trump clearly lost.

Right.

Exactly.

All right, let's, before we keep going, let's go to Ann Ed.

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One thing we should address, so we did an episode a few weeks back about an electoral college coup.

You know, could Trump take advantage of the electoral college rules to somehow get enough electoral votes?

I think the answer to that is just sort of technically yes.

There are a bunch of avenues, but the only real realistic one is that Republican state legislatures in, say, Pennsylvania could just reject the outcome, calling it illegitimate, and propose a slate of their own electors.

That's going to run into problems.

Pennsylvania, for example, has a Democratic governor who would probably propose his own set of electors under the rules.

The Supreme Court probably would just defer to the state legislature.

So, in a lot of ways, this is just a political question more than a legal one.

Are the state legislatures ballsy enough to do this or stupid enough to do this?

My instinct is that they're probably not going to get there, right?

What would be the basis for really rejecting it?

They would need the full support of like the full Republican delegation across these states.

states, that would be very difficult.

I think this stuff has been in the air a little bit, right?

Like Newt Gingrich mentioned it on Fox News.

Other politicians have talked about it.

And like clearly early on in election week from hell, you know, there were Republican legislatures talking about the vote tallying being illegitimate and this outcome maybe being on the table, the electoral college coup.

And

I just think politically it didn't play out in a way where they feel comfortable doing it.

I think they've surveyed the scene at this point and been like, they don't think they could get away with it or they don't think that it would fly one way or another,

which is why like the head of the delegation in the Pennsylvania House, I think, has said that they're not going to do it.

Which is, I think, basically sort of being like, you know, at the end of the day, they counted the votes in a way that like people generally believe the results.

Right.

And we can't even like pretend in a plausible way.

Right.

So let's move into some sort of interesting down ballot stuff.

You could tune into some

nerd-ass podcasts for Senate and House stuff, but I feel like there is some like actually genuinely good news in like the DA election space.

Rhea, are you up on this stuff?

Yeah, I mean, most importantly, really big one is that in Los Angeles County, progressive prosecutor candidate George Gaskin or Gascon.

I don't think it's Gascon.

That's the...

Beauty and the Beast guy.

Well, it has that accent.

Gascon.

In Los Angeles County, the progressive prosecutor candidate, George Gaskin, won.

This race was by the New York Times called the most important district attorney race in the country.

Gaskin is now, you know, the district attorney in a jurisdiction over 10 million people.

So this is a really big win in sort of the decarceral, you know, getting rid of cash bail, those kinds of movements and the progressive prosecutor movement across the country in general.

Another huge thing in terms of applying sort of decarceral logic, Oregon is the first state in the country now to decriminalize personal possession of all drugs, including heroin, cocaine, meth.

So that's really, really huge for Oregon.

Yeah, also, does anyone know what One Bedroom goes for over there?

Congrats to Oregon, the coolest state in the country.

And decriminalization of drugs, not just marijuana, is really important in terms of criminal justice reform because personal possession of drugs ends up being the sort of mechanism that drives mass incarceration.

So that's great.

And then marijuana legalized or medical marijuana use decriminalized in a bunch of states.

Arizona, what up?

I'm just excited and saying that as somebody who lives in Texas, Arizona, Montana, New Jersey, South Dakota, way to go.

Texas, get your shit together.

Did we mention, I think, DC decriminalized shrooms.

Oh, right.

Yeah.

Things are going to get weird.

Right.

In the next legislative session.

Control of the Michigan state Supreme Court changed from Republicans to Democrats.

That'll be good because, you know, Michigan is gerrymandered.

Michigan should be.

a fairer state electorally going forward than it has been in the last decade.

And that's a good thing.

Yeah.

Absolutely.

A bunch of other stuff happened.

There was some good news in like wage laws.

We mentioned that Florida passed the $15 minimum wage.

Paid family leave was expanded in Colorado.

Louisiana got rid of the Confederate flag that is on its flag.

It's just replaced now with the words, the white race is the superior race.

So small step forward in Louisiana.

Mississippi got rid of their weird electoral college that they had for like statewide office, which is good, which is a real legacy of Jim Crow and a step in the right direction for like having more representative and fair elections at the state level.

Yeah, both both Utah and Nebraska modified their constitutions to remove slavery as a punishment.

For crimes, yeah.

For crimes.

Congrats.

Saints.

Good way to keep up with the times.

That's a joke about how behind the times Utah and Nebraska are, but that puts them ahead of the United States Constitution, which still allows for slavery as a punishment.

That's what the 13th Amendment says.

Yes.

So let us talk a bit about the Supreme Court.

Obviously, we were banking on this going to the Supreme Court, which would have been bad for America, but just gangbusters for the podcast.

Just beautiful content.

Obviously, we're not quite there, but we should talk about what this election means for the court.

Moving forward, obviously, the sort of like clear implication of not winning the Senate, or at least probably not winning the Senate, is that court reform through legislation is effectively off the table here.

It would be hard to get court reform through even a nominally Democratic Senate, let alone a GOP-controlled one.

That does leave one option on the table, which we've discussed, which is ignoring the court, right?

What if Joe Biden's administration simply treats the court's rulings as non-binding?

It's an interesting possibility.

You can listen more to our court reform episode to hear us talk about it.

You know, we've talked about the trade-offs, and the big one is that it might result in Republican state governments also ignoring federal courts.

And it's hard to see that trade-off being worth it if we don't control the Senate and can't pass meaningful progressive legislation, right?

It feels like wasting ammunition to say, all right, we're going to ignore the Supreme Court when you can't even get like meaningful progressive legislation passed.

It's not like Biden can use this to save a Green New Deal or something that would actually be worth it.

He's going to just be passing executive orders and shit.

Trevor Burrus, Jr.: But this does sort of highlight the importance of the Georgia runoffs.

Even if Osoff or Warnock or both don't really excite you, they're probably worth your time or your money or something because the Supreme Court's not getting reformed with a 50-vote quote-unquote majority with Vice President Kamala Harris providing the tie-breaking vote.

But the lower courts might get expanded, and the caliber of justice or judge that Joe Biden can nominate and get through the Senate, it would be much higher in this scenario.

The Supreme Court and courts in general and the judicial system in general would be much healthier if they win those runoff races.

Trevor Burrus, Jr.: I am sort of mentally and emotionally preparing myself for the Democrats to score an own goal here by passing Rokana's forward-looking term limits bill so that like the term limits only apply to Biden's appointees.

Right.

All right, we should talk about like the composition of the court.

There's a solid six.

The oldest conservatives are Alito and Thomas, who are, I think, both 71.

Thomas looks like shit, though.

He could die.

Yeah, he's eaten a lot of cheeseburgers still.

He's been on the court for so fucking long.

One of the really good things about Biden winning from a court perspective is that if he hadn't, I think there's a really good shot that Thomas retired at the end of Trump's second term.

Yeah.

And Alito and Thomas are both like dumb enough right-wing nuts that I could see them at like mask-free indoor.

Oh, good point, yeah.

Right.

Oh, definitely.

Like in two months, when it's like 500,000 coronavirus cases a day in the middle of like this awful surge, they could definitely get sick.

Yeah, if you're coming home every night and sharing a bed with Ginny Thomas, you're never safe.

Yeah.

And I do think, like, if we assume that Democrats can only win one or none of the Georgia runoffs and Republicans control the Senate, it's worth wondering what that looks like for Joe Biden placing judges and justices.

I wouldn't be surprised if McConnell lets him have a Briar replacement on the Supreme Court.

It would have to be somebody moderate.

I think they would take that as a way that they could prove that they're being bipartisan and good and like things are quote-unquote returning to normal while they fend off a young black progressive woman and instead end up with Merrick Garland or some other milquetoast white dude who's only going to be around for 15 years.

A bluff that I think Biden should call because the optics of the Republicans agree back on a black female candidate, which was Biden's promise, would be disastrous, I think, for them.

Absolutely.

And after all their shit from Merrick Garland and Cony Barrett, if then they, in like the first year of his term, they're still not giving his nominee a hearing or they're like voting them down on party lines, like fucking do it.

I agree.

I think.

The Biden position here has to be sort of a picking fights with the Supreme Court and with the Senate on this stuff and like highlighting how political it is and keeping it relevant as an issue for the base and not seeming like it's something that they're walking away from.

I mean, I think there really is an open question about whether McConnell continues the Obama-era strategy of just stonewalling on lower courts.

I think that's a tougher,

they don't have like a huge majority, right?

They can only handle like losing like one or two votes, basically.

And, you know, Biden has long relationships with a lot of key senators, with Grassley, with Graham.

Look, I don't want to like buy into this bullshit that they're going to snap out of it because they're not.

They're going to do what's best for them.

But they might think that what's best for them is for a few years to just say, okay, if Biden is nominating moderates.

And that might be what we see for the next couple of years is them trying to like reduce the temperature on this because they've already won.

Like they have control of major circuits.

They control the Fifth Circuit.

They control the 11th Circuit.

They control the Supreme Court.

They've dulled the Democrats' hold on the Ninth Circuit considerably.

These are major circuits that cover Texas and Florida and California and like a lot of the sources of a ton of litigation.

So that gives them avenues to make any legal inroads they want.

They can just bring cases in Texas pretty much whenever they want and get like the ruling they want heading into the Supreme Court, where then they have a six-vote majority.

So, why keep it like a battleground if they can make it seem apolitical again?

That might be in their interests.

And I think all the more reason for the Democrats to say fuck that and not nominate moderates and turn it into a fight.

If you don't have Congress and you can't pass meaningful legislation, what else do you have to do?

Yeah, right.

Besides, fight over this stuff.

Exactly.

All right, next week, we're actually doing a case:

Arizona Free Enterprise v.

Bennett, a case about campaign finance and the lengths that the Supreme Court has gone to ensure

the power of big money in politics.

And that should just about round out our election-themed episodes as we move, thank God, out of election season into

some sort of lame duck session hell,

the depths of which we cannot possibly prepare you for.

Follow us on Twitter at 54Pod.

Enjoy the victory.

Enjoy watching Donald Trump have what I can only imagine is going to be a sustained and lengthy bitch vit over the course of the next week or two.

I'm going to very much enjoy that, and I'm going to enjoy screaming at Joe Biden and his administration for the next four years.

54 is presented presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kunkova with editorial oversight by Leon Nafok and Andrew Parsons.

Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

From the Westwood One Podcast Network.