No Lie with Brian Tyler Cohen - Rep. Raskin on whether Trump can challenge mail ballots in the Supreme Court

Episode Date: September 27, 2020

Trump has refused to commit to a peaceful transfer of power if he loses, and the story he used to justify that decision crumbled immediately. Brian interviews Congressman Jamie Raskin, who �� as a former constitutional law professor – talks about the legality of Trump’s promises to litigate the results of the election in front of the Supreme Court.Written by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CAhttps://www.briantylercohen.com/podcast/See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about Trump's refusal to commit to a peaceful transfer of power if he loses, and how the story he used to justify that decision crumbled immediately. And my interview with Congressman Jamie Raskin, who, as a constitutional law professor, has a ton of insight into the legality of Trump's promises to litigate the results of the election in front of the Supreme Court. I'm Brian Tyler Cohen, and you're listening to No Lie. One housekeeping point before we begin, and that's that I'll be live streaming the debate on my YouTube channel and doing some real-time analysis. So if you plan on watching the debate,

check it out on my channel, Brian Tyler Cohen, on YouTube. The first one's Tuesday, September 29th, but I'll be doing live streams for all of them. Okay, so where else would we start this week other than with the fact that Trump was asked by a reporter, Brian Karam, the senior White House reporter for Playboy, whether he'd respect the peaceful transfer of power in the event that he loses, and this is what he said.

When lose or drawl in this election, will you commit here today for a peaceful, transferral of power after the election. There has been rioting in Louisville. There's been rioting in many cities across this country. Red and your so-called red and blue states, will you commit to making sure that there is a peaceful transferral of power after the election?

Well, we're going to have to see what happens. You know that I've been complaining very strongly about the ballots, and the ballots are a disaster. I understand that, but people are rioting. Do you commit to making sure that there's a peaceful transferal of power? want to have get rid of the ballots and you'll have a very peaceful, there won't be a transfer, frankly, there'll be a continuation. The ballots are at a control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else. He literally says

we want to get rid of the ballots and follows up with there won't be a transfer. There will be a continuation. Meaning, if you throw the ballots away, he will win. I mean, yeah, if you don't count votes, then the election won't work. He's right. that respect. What the guy is saying here is that he doesn't think votes should be counted because he pulled out of thin air that mail and ballots are illegitimate. Now, in reality, let's think about why Trump would want to discredit mail ballots. There are two reasons. First, think about what he's groomed his supporters to do over the last six months. Vote in person, right? He spent every day and night telling people to go to the polls, that mail and ballots

are rig, that China is forging the ballots. He installed DeJoy at USPS, who basically broke the Postal Service, again hurting the credibility of mail-in ballots. Everything he's done has had the consequence of discrediting mail-in ballots. And polling shows that too. A survey by the Democracy Fund and UCLA Nationcape Project found that 48% of voters who plan to vote for Joe Biden said they're likely to vote by mail, while 23% of Trump voters plan to vote by mail. So if you're Trump and you know that mail-in voting overwhelmingly favors your opponent, then of course your focus is going to be on discrediting vote by mail. And the second reason he'd want to discredit the mail and ballots is more insidious still.

It's that he wants to cast doubt on the validity of the entire process, right? The point is the chaos. The point is casting doubt on whether it's safe to vote and whether you can vote by mail or drop boxes or in person. And even if you do, whether they'll get lost or stolen or forged and whether litigation's going to render them invalid. The point is the confusion and the uncertainty and the, and the, disillusionment with the whole process.

So if it feels like you don't know what the hell to do, that's by design. That is the feature of Trump's strategy. So with that said, clearly he's got a vested interest in continuing these attacks on mail-in voting. And he seized on one story in particular to drive this point home, which is that reportedly there had been a handful of ballots that were thrown away. You have to be very careful with the ballots. The ballots, that's a whole big scam.

You know, they found, I understand eight ballots in a... waste paper basket in some location. They found it was reported in one of the newspapers that they found a lot of ballots in a river. They throw them out if they have the name Trump on it, I guess, but they had ballots. No names on that they. Okay, well, they still found him in a river, whether they had a name on it or not. But the other ones had the Trump name on it, and they were thrown into a waste paper basket. We want to make sure the election is honest, and I'm not sure that it can be. I don't know that it can be with this whole situation. Unsolicited ballots. They're unsolicited

millions being sent to everybody and we'll see. And before we start, I love how he just adds bullshit to his story as he speaks to pump it up. So he said that ballots were found in a river and that his name was on them and then he was called out in real time by a reporter that there was no name on the ballots and he literally says, okay, well, they still found him in a river. Okay, fine. I'm lying about that, but you should still believe everything else. So what happened was that an election worker threw out nine military ballots in Luzerne

County in Pennsylvania. It was discovered by the Luzerne County Elections Director. The election worker, who was on their third day on the job, was fired, and an investigation was opened immediately. Okay, fine. But next, the U.S. attorney overseeing the case, David Freed, a Republican, came out with a statement saying, quote, all nine ballots were cast for President Donald Trump. And Trump seized on this and repeated the claim in an individual.

interview on Fox News Radio and pointed to this as evidence of widespread fraud with mail-in voting, and so the election results won't be valid, unless, of course, he wins. Now, a statement like this is not only highly unusual, but it actually violated DOJ guidelines. The DOJ's 2017 guidelines for federal prosecution of election offenses says, quote, because the federal prosecutor's function in the area of election fraud is not primarily preventative, any criminal investigation by the department must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election. And I'm just going to go out in a limb, but validating the Trump campaign's constant claims that

mail-in ballots are ripe for fraud and naming who the ballots were for does exactly that. But hang on, because immediately thereafter, the U.S. attorney then went back and amended his statement that it wasn't nine ballots, it was seven ballots with Trump's name on them. And then Freed announces that it may just have been administrative error. David Freed said, quote, our investigation has revealed that all or nearly all envelopes received in the elections office were opened as a matter of course. It was explained to investigators the envelopes used for official overseas, military, absentee, and mail-in ballot requests are so similar that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests. Meaning simply enough that these ballots looked like ballot requests, and so they had to be opened. So not only did Freed violate DOJ protocol, not only did he allow for his own announcement to become a factor in the very election he's supposed to be protecting, but the information he prematurely announced wasn't even accurate.

And yet still this Republican U.S. attorney gave the Trump campaign everything it needed. How many people who heard the initial claim that nine out of nine ballots for Donald J. Trump ended up in a dumpster? And then how many people stuck around for the revised statement that not all the ballots were for Trump? and, in fact, it was likely due to administrative error because of a poorly trained new employee. Yeah, something tells me the Trump campaign probably didn't blast out that follow-up information as gleefully as the first round, right? But it gets better because then we find out by Politico's chief political correspondent that these ballots weren't in the secrecy envelopes that all Pennsylvania ballots need to be placed inside,

meaning that even if they weren't opened and spoiled, they wouldn't have been counted anyway. And the only reason that these secrecy envelopes are even required is because Trump and the GOP fought in the Pennsylvania Supreme Court for it. They argued successfully that ballots in Pennsylvania need to first be inserted in a secrecy envelope and then inside of an outer envelope. And that any ballots that are simply inserted into the outer envelope first, which are called naked ballots, aren't valid. So Trump and Republicans are complaining about something that they themselves fought for in court. But let's keep going, because then we find out that it was the Department of Justice that identified the discarded ballots as being for Trump, not local Pennsylvania officials. Political reported that, yes, a temporary employee incorrectly discarded a handful of ballots, but county officials were unaware of who the ballots were cast for until the Department of Justice identified the voters as supporters of Donald Trump. So that were clear, this is Bill Barr's DOJ that identified the ballots, the same DOJ that just opted to intervene on

Trump's behalf for a defamation lawsuit brought forward by a woman that Trump is accused of raping, meaning U.S. taxpayers are now paying to defend Donald Trump in that case. The same DOJ that helped block the release of Trump's tax returns. The same DOJ that threw out charges against Michael Flynn after he pleaded guilty. The same DOJ that asked foreign governments to discredit the Mueller report. So I guess what I'm saying is you should totally take Bill Barr's Justice Department of face value. Yeah.

Not like they've ever aligned themselves with Donald Trump before. And then, because of course it never ends, we then find out that it was Bill Barr himself who actually fed this information to Donald Trump before a radio interview with Fox News. So Trump says it on Fox and then Fox reports it. And then Trump points back to that and says, look, it's right there on Fox, so it must be real. And that is how the conservative media feedback loop works. That is why having outright propaganda networks that don't fact check but instead just spew White House talking points is dangerous.

Consider, too, not only was what Bill Barr told Trump factually baseless, but the guy is supposed to be overseeing an independent branch of government, and instead he's feeding Trump campaign fodder. And not just any campaign fodder, the very talking points that Trump was looking for to discredit the results of the election. You have the Attorney General, the highest law enforcement official in the United States of America, who is actively working to undermine faith in our elections. and he's doing it with some bullshit stories about ballots and rivers that are literal fake news. But he was just so excited to be able to leverage the DOJ to help Trump that it didn't matter to him that what he was saying was fake because everything he does is to help Donald Trump. The fact is, we don't know if there was foul play with these nine ballots

or if it was administrative error, but having this insane conversation where we are guessing is exactly why the DOJ doesn't issue statements about ongoing investigations in the first place. But while they get their story straight, here are the facts. There is a 0.000, 0.006% rate of fraud with mail-in ballots. Do you know what you can swing with that rate of fraud? Literally nothing. So look, just remember, Trump's point here isn't the truth.

It is sowing doubt and confusion and discouraging you from voting and distrusting the system as a whole. That's the point of this. Do nine ballots in Pennsylvania mean the election results can't be trusted? Absolutely not. and the administration knows this, but they're not operating in good faith. So I'll say this, and I know I repeat this a lot, but if you take one thing from listening today, let it be this. Do not give Trump the satisfaction of discouraging you.

Don't validate his strategy. He wants you to give up. He wants you to feel hopeless. You know why? Because he can't win on the merits. He hasn't expanded his coalition. He can't. He's incapable.

He only knows how to be a divisive racist, period. So his only hope, then, isn't to, uh, To appeal to new voters, it's to peel other voters away from Biden and to depress turnout. It's to make you believe the system is broken. It's to make you believe your vote won't count. But it's not broken, and all you have to do is keep your eye on the ball here. You go and vote. If you can vote safely, then go in person to the polls, especially if you can go early.

And if you can't go safely, and you've requested a mail ballot, then bring it to a drop box. Bring it to the elections office. Put it in the mail immediately. And in most states, you can track your ballot. Take advantage of that. The point is not to focus. focus on the distractions because that's what Trump wants. You can vote and your vote will be counted.

And states will certify the election results. And Trump will stop his feet the entire time. He will throw temper tantrums and issue threats and light things on fire. But it's only because you have the power, not him. And that drives him nuts. So don't waste it. Next up is my interview with Congressman Jamie Raskin. He's not only one of the smartest people I've ever spoken to,

But constitutional law is his area of expertise, which is especially useful now that we need to figure out the legality of what promises to be this country's most litigious election. All right. Today we have Congressman Jamie Raskin. Thanks so much for coming on. So I'd be with you. And now, Congressman, you were a constitutional law professor at American University before being elected to Congress. I can think of, oh, I don't know, one or two impending crises where a constitutional law professor might prove valuable, don't you think? Yeah, there's not a lot of precedent for the things that are happening right now.

Yeah, that's fair. Well, let's dive in. So Trump has been threatening to litigate mail-in ballots. Now, these threats are based on completely unfounded premises that mail-in ballots are rigged. They're not. States have said they're not, but he's clearly setting this battle up. So my first question, is there any way that Trump could actually challenge the legality of mail-in ballots? Well, this is America. Anybody can challenge anything. I mean, let's be clear about that. It's not hard to sue. People sue all the time.

And the president, particularly sues all the time. I think he's had more than 5,000 cases that he's been involved in one way or another. And lots of times he's the defendant, like when he sexually assaults someone. But other times he's the plaintiff and he just sues people if he gets mad or he sues for power and advantage. And that's kind of the situation where he's emitting a huge fog of propaganda about chaos. he's trying to create the chaos and then under the cover of all the chaos there's a method in the madness and he is pursuing a few very clear lines of attack on the election and is just waiting

to pounce on the inevitable problem in this state or that state about something because life just isn't perfect but then he will try to blow it up into an epic controversy and use it try to discredit the entire result. Okay. How can the power to certify election results not belong exclusively to the states? Well, it does. And, you know, under our system, it does unless, you know, the state were to engage in something that violates federal law. If there's corruption in the process, if they're selling votes or, you know, stuffing the ballot box or what have you, you know, there, there, is a provision in the Constitution which allows Congress to regulate elections, but the core power

over elections is in the states. You know, the Trump administration is going to try to have it both ways. On the one hand, they're going to try to get federal courts in the Supreme Court to intervene on stuff like, you know, a postmark from abroad, from a military ballot. Does it show up a night? Is it, that'll be like the new hanging chat, right? So they'll try to get that to become a federal issue, but at the same time, at a certain point, they're going to say the state legislatures in swing states that have gone for Biden, and here I'm predicting Wisconsin, Pennsylvania, maybe North Carolina, which are Republican legislatures can just throw out the result and rewrite the state law to appoint electors for Trump or to say it's too

confusing. We're not going to send any electors at all. And they will say that power is absolute and unreviewable by courts, and then the election would go directly to the House of Representatives for a so-called contingent election. Can you speak about that a little bit? Because it's not, you know, when we hear that the election would go to the House of Representatives, most people would think, like, okay, well, Democrats have a majority in the House, but that's not exactly the case in this instance. Well, no, the 12th Amendment sets out a number of different scenarios in which there's a failure for a majority to form in the Electoral College. And if nobody gets to 270, then it is kicked in the House of Representatives. The House votes, but we don't vote

one member one vote. We vote one state one vote. So California gets a vote, Montana gets a vote. New York gets a vote. Idaho gets a vote. And this way of doing it obviously favors and inflates the power of smaller states, which tend to be more Republican. And right now, there are 26 state delegations that are controlled by Republicans, which means there would be 26 votes for Republicans. There are 22 controlled by Democrats, which would mean we would have 22 votes. And there are two states which have a tie, like Pennsylvania is 9 to 9. So it's the new Congress. It's not this Congress, which will be involved in a contingent election if we have. one, which just means that these House elections are extremely important.

And now, just to clarify, that's only in the situation where it's 269 to 269, for example. Well, it doesn't have to be a tie. It's just if nobody gets 270 in the Electoral College, if there's no majority, then under the force of the 12th Amendment, the House of Representatives, which will just have read the electors, will move immediately into. to a presidential election by state within the House of Representatives. So this is why Democrats are focusing very hard on Pennsylvania, which is a Thai state,

Michigan, which is a Thai state. And then states like Montana and Alaska, which just have one representative. And if we can win that representative, then we're taking a vote away from the Republicans. And there are a number of states that we also need to hold in that contest too. So you've got to think

of it as kind of multiple games going on at once. There's the fight for the popular vote. There's the fight for 270 in the electoral college vote. There's the fight to get to 26 state delegations in the House of Representatives. And then there's the fight to defend our victories in any of these three in federal court. Right. Okay. So let's talk about the court system. Now, Trump has said outright that he wants to quickly appoint another Supreme Court justice so that there's going to be a conservative majority when he does inevitably cry foul over mail-in ballots. So is this something that could eventually get in front of the Supreme Court? Well, of course it could. We saw that in Bush v. Gore in 2000 where a five-justice conservative majority essentially decided the election for George

W. Bush. They ordered the termination of all manual counting of ballots in Florida. about 170,000 ballots were left on the table because the majority said that there might be different methods of counting ballots in different counties, which, of course, if true, would have applied to the election before, but they just wanted to freeze it for George W. Bush. And in any event, if there were disagreements as to particular ballots, the solution for that is to come up with the right standard, not to just throw all of those ballots away. So that was an outrageous and scandalous decision. And unfortunately, a kind of precedent for what Trump wants to happen here.

I mean, it's almost comical that he says, I'm trying to get this justice in in time to rule on the election. Number one, it presumes that it's going to court. There's no reason it should go to court. I mean, Bush v. Gore is the aberration. It's the exception. But, of course, Trump is determined to get it there. Why? Because he knows he's going to lose.

I mean, if he thought he were 10 points ahead instead of 10 points behind, he wouldn't be whining. about the fraud and, you know, so on. But the other thing that's absurd about it is that he's also implying quite directly that he's going to get his person on the court to decide the case, the imaginary case, in his direction, in his way. And so it's almost as if, you know, he corrupts everything he touches. And the conservative justices that he's counting on to hand him in the election should think about their legacies because this will overshadow every,

everything else that they've done in their entire careers and their entire lives. If they give this election to the popular vote loser in the electoral college vote loser who happens to be somebody named Donald Trump. Right. Well, I mean, that being said at the same time, you know, that I think trying to appeal to Republicans, whether they're, you know, in the legislature or on the court, appeal to their sense of shame is a little bit of a fool's errand at the same time because it hasn't stopped them at any point over the last four years or before that. I mean, going all the way back to Bush v. Gore. Yeah. Well, most justices like to think they're somehow above the tawdry spectacle of partisan politics.

And I have a suspicion, but it's just a suspicion that Chief Justice Roberts finds Trump's performance in office pretty appalling. I mean, as right-wing and conservative as he is about pretty much everything else. I mean, Trump really is a deranged, a fascistic madman. Let's say that the Trump campaign decides to litigate this in the courts and they lose because, you know, the premise of their suit is fundamentally flawed, as we all know. They appeal and they lose. And they appealed again to get to the Supreme Court. And the Supreme Court is six three conservative with, you know, a hardline Republican activist judges, basically, almost a majority of whom were appointed by Trump himself, who can rule in his favor. So is there anything stopping an illegitimate suit from just getting to the Supreme Court where Trump clearly wants it to go?

Well, all of that depends on the people in the sense that if we have a landslide election, as we should have, where Biden wins by 25 million votes. And he and Trump basically needs to nullify the electoral college vote somehow, say, in five swing states in Florida, North Carolina, Wisconsin, Pennsylvania, Ohio. It's going to be extremely difficult, both in terms of the moral atmospherics of it. but also just in terms of the legality of it for the Supreme Court to figure out a way to overturn the result in that many states. Now, if it does come down to one state and there's one issue, one category of ballots that Trump is trying to discredit, like the Pennsylvania Supreme Court just ruled that absentee ballots that are cast before November 3rd can be accepted if they're received within five days after November 3rd. Of course, if you mailed it on the second, especially with all of the Lewis DeGroi, this billionaire Republican, they made Postmaster General, with all these Lewis DeJoy engineered slowdowns, people's ballots could arrive a couple of days late. So that's standard commonplace stuff. Well, the Republicans lost that in the Florida Supreme Court. They said, you know, yeah, you can count for five days ballots that are still arriving if they were cast before November 3rd.

Well, the Trump people are saying, that's outrageous, blah, blah, blah, and they're petitioning to the Supreme Court. They're going to try to get the Supreme Court to say that the Pennsylvania State Supreme Court usurped the authority of the Pennsylvania legislature with this interpretation, which really amended the state law. And the Pennsylvania legislature has the exclusive plenary power under Article 2 to define presidential election laws. Well, that decision would essentially mean that any country.

court decision interpreting any state election law or any state gubernatorial executive order or administrative regulation could be struck down by the Supreme Court. It would literally subject hundreds or thousands of state election rules and procedures to chaos, you know, if they did that. But that's precisely where Trump wants to go. I don't know if the court is going to entertain that invitation. But their whole thing is to basically say, if we don't like the way the state law affects us, then the state legislature can override it. Right. So this is a good segue into the future of the Supreme Court. So let's operate under the assumption that Trump's able to appoint another justice. The process will have played out against the precedent that

Republican said, which is that a Supreme Court nominee can't be appointed an election year. So that prevented Merrick Garland from taking the court. But now under a Republican president, they're suddenly able to appoint one. So, which means that that was never a real rule, right? It was, it was an underhanded tactic to prevent a Democratic president from performing his constitutional afforded power. So with that said, would you support expanding the court if Democrats pick power in January? Sure, as one possible, you know, the avenue to explore. I mean, we haven't really studied it and had hearings and so on. Sure, but, you know, by any means necessary of restoring some semblance of real justice to the Supreme Court and the federal judiciary. I mean, I would look at anything.

I would look at the possibility of just putting term limits on Supreme Court justices. I mean, America, I don't know if it's unique, but it's very rare in terms of, you know, most of the world of just letting justices serve forever. Yeah. I mean, you know, the Constitution was written at a time when life expectancy was late 60s, early 70s. These people live in a 98 or 100 years old, you know. So there are lots of different things that we can look at and that we should look at. What are other options that have been floated or that you would consider? Well, you know, the judges who go on the Supreme Court are guaranteed life tenure, but that doesn't necessarily mean on the Supreme Court. So after a period of years,

they could be rotated off the Supreme Court and they could go to one of the appeals courts or to the one of the federal district courts and they could rotate with other justices. I like, like that. I mean, the term limits would allow, you know, as with the U.S. Senate, a constant turnover, a kind of staged turnover. And you would, rather than have these terrible fights, you could just say each president is guaranteed two appointments over the course of his or her term. Do you think that deferring to something like term limits would, in a way, be a bit of a capitulation to Republicans who are, you know, I mean, the time that we're living in right now, we have these crises that need to be dealt with immediately.

You know, we have existential crises with climate change. We have, you know, an absolute need for reform with voting rights. I mean, a lot of these things have to be litigated or reformed right now and can't necessarily wait until like, okay, we're going to implement term limits for the Supreme Court and, you know, 12 years from now, they'll take effect for the first person or whatever, you know? Yeah, I'm with you. You know, I just don't want to commit as to what particular solution now.

I mean, there's nothing sacrosanct about the number nine in the Supreme Court. It's not in the Constitution. The size in the composition of the court has changed, I think, nine or ten times. It's gotten bigger. It's gotten smaller. You know, it's not written in the Bible or anything. There's got to be nine justices. But, you know, I just don't want that to become, like, the big campaign issue as opposed to this, you know, outrageous ploy of Mitch McConnell who demonstrated his hypocrisy.

I guess that's no news, but also his fundamental injustice and unfairness. You know, he kept Merritt Garland, even from having a hearing, much less a vote, from February of 2016. This is September of 2020. There are 40 days left. We don't even know who their nominee is, and they've already got a whole schedule of how they're going to ram this through Congress. And the Republican Party senators are acting like members of a religious cult. I fully expect them to see, expect to see this. selling flowers or incense at the airport, you know. Well, you know, the irony of what you just

said, and that is, you know, when you're talking about the number of Supreme Court justices and you said how they've changed over the years, most recently, that number was changed to eight because Republicans held out on filling the vacancy left off by Antonin Scalia. So that was one more time where it changed, and it was at the hands of Republicans who will then turn around and pretend that, you know, the number nine is sacrosanct. But, you know, what's interesting is everybody immediately saw the hypocrisy of it and deplored the hypocrisy of it, but nobody really, that doesn't move people anymore. People understand their hypocrites, they're liars, they operate on deceit and sabotage and so on.

The real issue is the cruelty of why they're doing it. I mean, they want to get somebody on the court so they can wipe out the Affordable Care Act, throw tens of millions of people off their health insurance, destroy pre-existing condition coverage, wipe out the Medicaid expansion, and then target. reproductive freedom and, you know, decapitate Roe v. Wade, Planned Parenthood versus Casey, and so on. I mean, they're coming for, you know, whatever remnants there are of civil rights and civil liberty landmark decisions from the Warren Court. The Supreme Court has returned to its historical baseline of being an extremely reactionary institution in our history. For most of our history,

It's been extremely reactionary on the side of white supremacy and power and property against the people. And waged war on the New Deal, did nothing to impair slavery. In fact, in the Dred Scott decision, said that the African-American has no rights the white man is bound to respect. And even after the Civil War and the 13th, 14th, and 15th Amendment still constitutionalized apartheid in America in Plessy v. Ferguson in 1896. So there's that brief period of the Warren Court with Brown v. Board and Roe versus Wade and Miranda versus Arizona, a handful of cases which gave the court a kind of halo around it. But basically it's a right-wing institution. And, you know, Justice Ginsburg spent most of her very distinguished career in dissent on the Supreme Court. So I think that's a good point, what you said in terms of,

you know, using what they're doing to highlight the unpopularity of this decision. And you look at Roe v. Wade, 70% of Americans agree with keeping Roe. The ACA, the popularity of the ACA is in the 60th percentile. So, I mean, these are, you know, I know that we talk about expanding the courts and all these other tertiary issues around it. But at the, at the core of this is that if there's a 6.3 conservative majority on the court, that is a death now for not only some of the most popular programs and rulings in this country, but issues that led Democrats to massive victories just in the last midterm election cycle. I mean, you look at, you look at Democrats took 41 seats in the House. It was the biggest midterm margin in American history, and that was predicated on

protecting the ACA and health care. Right. Well, you know, I'm sorry to break the news to you, but this process has already started. I mean, Shelby County versus Holder in 2013, um, effectively destroyed the voting rights act. I mean, the heart of the Voting Rights Act was the preclearance requirement before a jurisdiction with a history of discrimination could just make changes by closing polling places or imposing a photo IT requirement or whatever it is. They had to go to court or go to the Department of Justice to get it approved. And the Supreme Court destroyed the coverage formula saying that, oh, this is discrimination against southern states or whatever. And that has created this open season on voting rights all over the country and

made Republican operatives really excited that they can go back to all of these bare-knuckle tactics of trying to keep members of minority groups and young people and the Democrats from voting. And so that's where we are, but that process is underway. I mean, it will be a horrible thing when they install Justice Ginsburg's replacement, whichever of these right-wing federalist society hacks they decide to pick. But it's a process that's already well underway in terms of the undercutting the Civil Rights Act, the Voting Rights Act, the attacks on health care and you know, contraceptive coverage, what have you. It's all going on. And this is the court that has basically sacralized and deified the corporation with Citizens United, transforming every

corporate treasury in America into a political slush fund. So in the event that Democrats win the White House and both chambers of Congress in the next election cycle, if we're looking at something like the Voting Rights Act, if we do have a 6-3 court, what are the avenues that we have in order to codify the changes that we want to see? I mean, is it basically a constitutional amendment? And would the Supreme Court have any say in? If we control the House and the Senate, we can do it by statute, but it's not safe. I mean, we live in an age of intense right-wing judicial activism.

The right-wing are the judicial activists. They're the ones that want to strike down progressive laws, however they can. So the safe way is to try to put it in the Constitution, but that doesn't make it safe necessarily either. As we saw, you know, in the case of Plessy v. Ferguson, the equal protection was put in the Constitution, and the Supreme Court interpreted equal protection to allow for Jim Crow laws. Yeah. So, you know, the language doesn't define itself. There's an interpreter involved. And so it all comes down to who's the interpreter. And, you know, these right wing federal society judges are the biggest postmodernists of them all, post-structuralist, just finger painting all over the Constitution. Well, let me ask this. I mean, is there a way to, I mean, and this is getting a little bit in the weeds, but if a constitutional amendment is written, and it's written in such a way that takes into account any possible or impending right-wing distortion to write it in such a way that it basically protects against that. I don't know. I mean, it always comes down to who's the last

person who's got the word as to what it means. If what you were saying were true, there would be one religion on earth and everybody would be reading from the Bible exactly the same way. But you've got thousands, thousands of religions because people look at the exact same text and give it a different meaning. The bottom line is we've got to get people into the judiciary and on the court who understand that this is a constitutional democracy and it's the civilizing movements of our history, the women's movement, the civil rights movement, the LGBTQ movement, the human rights movement, the environmental movement that have defined the trajectory of the American experiment and the character of our constitutionalism. It's got to be about the rights and the liberties, the

welfare, the common good of the people. Okay, well, Congressman, thank you so much for taking the time. I really appreciate it. That was, you know, a wealth of information and, you know, especially, you know, how we're so mired in all of these legal issues right now, I think it definitely helps to have clarified a lot of these positions. Well, I appreciate that. It was great thing with you.

I'd love to come back sometime. There's a lot to talk about. Thanks again to Congressman Raskin. A couple notes before I go. First, if you're voting by mail in Pennsylvania, you must put your ballot in the secrecy envelope first and then inside the outer envelope. That is the only way that your vote will count. Second, if you haven't yet registered, go to votesafeamerica.com slash register.

And even if you are registered, you can verify your registration at votesaveamerica.com slash verify. It takes less than a minute. So please check the website. I'll put the link in the episode notes. Finally, to repeat what I've been saying for weeks, as you prepare to vote, find someone who didn't vote in 2016. Find one person.

one person and get them all set to vote. It may not feel like a lot, but remember, Trump won Michigan by 10,000 votes in 2016. Everything helps, so please do your part. Okay, thanks everyone. Talk to you next time. You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California.

If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review and check out Briantylercoen.com for links to all of my other channels.