What A Day - Trial and Error

Episode Date: November 13, 2020

Joe Biden’s lead has only grown since major networks projected him to win the presidential election last weekend, and despite that, Trump has continued to baselessly claim that he is the true winner and delay Biden’s transition process. To better understand the nuances of Trump’s lawsuits and whether we have anything at all to worry about, we spoke to Risk Hasen, a law professor at UC Irvine who specializes in election law and campaign finance. And in headlines: over 700,000 people file for unemployment, wolves as a first line of defense against chronic wasting disease, and YouTube Rewind is cancelled for this year.

it's friday november 13th i'm akilah hughes and i'm gideon resnick and this is what the day where we are developing the first ever news game for ps5 yeah it's a lot like spider-man but he just works at the daily bugle yeah it's jk shimmons screaming at you a lot like in a motivational way supposed to inspire something. On today's show, a conversation about the current legal strategy or lack thereof from the Trump campaign, then some headlines. All right. So it's been nearly a week since major networks and media outlets projected Joe Biden to win the presidential election. Since then, his lead in Pennsylvania, the state which put him over the top, has only grown. And at this moment, he leads in enough states to give him 306 electoral college votes. Even his ballots continue to be counted in Arizona

and Georgia is heading to a recount. Despite all of that, Trump has continued to baselessly tweet in all caps that he is the true winner of the election, claimed fraud, refused to concede, dragged Republican Party leadership with him, and delayed Biden's official transition process. But yesterday, we started to see some cracks among Republicans who said that Biden should at least get access to the president's daily brief for national security reasons. How generous of them. And as the days have stretched on, Trump's evidence-free lies about fraud and corruption in the election have continued to run face-first into brick walls. Just yesterday, Trump's own Department of Homeland Security called the recent election, quote, the most secure in American history. In Arizona, audits have found

no evidence of anything untoward, and the Republican attorney general of that state said that Trump would not win it. In Michigan, Trump's claims of, quote, shocking evidence of misconduct have amounted to affidavits, like one poll watcher saying it was weird that some military ballots went for Biden. And then yesterday, there was an instance where Trump lawyers appeared to file a lawsuit in the actual wrong court. It's just so embarrassing. It's like, how can they keep inventing new ways to be stupid? Well, we wanted to put all of this in perspective with an expert. So we called up Rick Hasson. He's a professor of law and political science at UC Irvine. He also writes extensively on election

law, and he's been following all the lawsuits filed since election day and leading up to it. So here's our conversation. Professor Hasson, thank you so much for speaking with us. It's great to be with you. All right. So we've been reporting all week on these lawsuits and how they aren't backed by any evidence, really. But before we get into any of them in particular, you know, I wonder if you could just characterize the lawsuits overall. Are they frivolous? Are they theater? Are they, you know, the equivalent of a triple Hail Mary pass? Like, how would you describe what is actually going on here? Well, so ordinarily, when there's a very close election, or there's a major

problem in an election, there's the possibility of filing a lawsuit. So for example, back 20 years ago in Bush versus Gore, the whole election came down to the state of Florida, and it came down to about 1,000 or so votes. Later, that was whittled down to 537 votes. And there were a lot of problems with how Florida ran its elections, so there were a number of lawsuits. That's not what we're seeing now. What we're seeing now is an election that's not particularly close in either the electoral college or in any particular state that is part of the majority. So, you know, there are some states that are maybe 15,000 votes apart, 12,000 votes apart, as we're recording this. There hasn't been a recount that has moved more than a little over

1,000 votes. The average recount moves around 500 votes, so a recount is not going to do it. So really, you've got to point to some kind of massive fraud or systemic problem with how the election was run. And so far, the Trump lawsuits in places like Michigan and Georgia and Pennsylvania have raised claims that are either really weak factually, really weak in terms of their legal arguments, or both. So that's kind of the general lay of the land.

And have they had any actual victories of any kind so far in any of these states with any of these various attempts at the challenges you're describing? Yeah, there have been a few small ones. So I think it was a day or so after the election, there was a suit that was brought claiming that the observers who were looking at polling in Philadelphia were not able to get close enough. And the judge had the parties confer and they brought in some more observers. And then there was a lawsuit that came out on Thursday, an appeals ruling, that said that for a small number of ballots in Pennsylvania, which have not been included in the

vote totals that have been reported, the Secretary of State should not have allowed for the correction of mistakes that people made in submitting their ballots. Again, this doesn't affect the existing totals. As we're recording, Biden's ahead by over 50,000 votes in Pennsylvania. And so these are not included. So this is not going to make a difference. There are other lawsuits that could potentially succeed, including a lawsuit that's trying to exclude all the mail ballots that came into Pennsylvania between the end of November 3rd and the end of business on November 6th under a kind of untested legal theory that's already gone

to the Supreme Court twice. Even if that happened, it wouldn't affect the outcome of Pennsylvania. And even if it affected the outcome of Pennsylvania. And even if it affected the outcome of Pennsylvania, because Biden has 36 more electoral college votes that he needs, that still would not flip the election to Trump. Right. I mean, brass tacks, you know, like, are there any of these cases at this point that you can see that have a chance of going to the Supreme Court and making any real move in the way the election's been called? So the one case that could go to the Supreme Court that's going to the Supreme Court and making any real move in the way the election's been called? So the one case that could go to the Supreme Court that's been to the Supreme Court twice is the case over those late ballots. But because those late ballots don't affect the

outcome in Pennsylvania and therefore don't affect the outcome in the presidential election, even if the court takes the case, and I'd worry if the court took the case, because I think they may make some bad law, which is going to affect voting reform and election reform in the future. It's not going to affect the outcome of this election. Something really dramatic would have to happen across multiple states to imagine a legal path to trying to reverse this election. Any self-respecting election lawyer has got to be advising the president if the president asks that this is a hopeless cause. So then that makes me think this is not a legal strategy at all, but a political strategy to try to do something like mess with the electoral college or uh try and get states to put in a different slate of electors you know repairing all of these

nightmare scenarios and people are freaking out and i feel like every day all day i'm walking people off the ledge that's literally the name of our show is walk people off the ledge. On that point, the, you know, stepping back from the ledge, there is that paranoia, like you mentioned, among some people that, you know, you could have state legislatures in Republican states miraculously step in and appoint electors that would go against the vote in their state, the nightmare scenario as you're describing it. Is this technically something that could happen? And if you are walking us and everyone else back from the ledge, what would you say is the reason to not worry about that scenario? Okay, so the Constitution said, now we're getting into the

weeds, but it's unavoidable. The Constitution says that state legislatures get to set the manner for choosing presidential elections. Well, they've set the manner. The manner is a popular vote. In every state, it's winner take all, except for Maine and Nebraska, where they do some by congressional district. So the manner has been set. So a state legislature can't come in and say, oh, we changed our mind. So how could they try to choose electors? Well, there's a provision in a federal statute called the Electoral Count Act, which was passed after the disputed election of 1876. Wow. I told you we're getting in the way.

Deep cuts. Let's go. 3 U.S.C. Section 2. It says that when a state fails to make a choice for president, the state legislature can come in and choose a slate of electors. Well, the states have all made a choice. Yeah, it's pretty clear, it looks like. So it would be essentially lawless. We'd be out of the realm of law and into the realm of politics.

And to say that there would be massive social unrest if state legislatures tried to take away the voters' power to choose electors is an understatement. And it would be calling into question the very election that put those legislators in office anyway, right? Those legislators ran in the same election. Are they saying the election was so marred with fraud and irregularities that it has to be overcome? It would be a profoundly anti-democratic, small d, anti-democratic action that would provoke a general strike, I mean, it would, the United States would no longer be a democracy if that happened. I don't expect it's going to happen. That's right. And it would have to happen in three states, right? Yeah.

Not just one state. So, you know, we're really in a place where, you know, maybe this is being done to assuage the president's ego. Maybe it's helping him to raise some money. It's not going to get him a legal outcome that's going to be favorable. And I think that you alluded to this before, but when you look at all the legal cases before and after Election Day this year, do any of them have a long-term impact on voting rights beyond 2020? Yes. First of all, I think that we got a lot of bad law because I think that Democrats and voting rights attorneys, once they got to the appeals courts and the Supreme Court, they got some hostile judges who are voting rights. And so i think they've made some bad law generally so i've been somewhat critical of some of the litigation choices that have been made because this stuff will have legs but the biggest uh lawsuit that i think had the greatest impact

it has nothing to do with covid uh it has to do with felon disenfranchisement in florida and it was the fact that the 11th Circuit came in and let the Florida legislature essentially kill this provision that re-enfranchised felons in Florida, up to a million people. It was passed by a voter initiative by a bipartisan, Republicans, Democrats, everybody supported it. And then the Republican legislature came in with a rule that you actually know you can't be re-enfranchised until you've paid all your fines. But guess what? Democrats, everybody supported it. And then the Republican legislature came in with a rule that you actually know you can't be re-enfranchised until you've paid all your fines. But guess what?

We're not going to tell you how much you owe. And if you sign in and say, sign up and say you, you paid all your fines, you didn't, well, you could be committing a new felony. I mean, it's quite a Kafka-esque deterrent. So that lawsuit, I think, is, you know, what the 11th Circuit did in that case is one of the worst opinions we've seen in a while. But I expect there'll be more bad ones to come as the conservative courts continue to show increasing hostility towards voting rights.

Yeah. Yeah, that appears to be the end game because the other end game does not seem to be panning out, you know, finding some sort of victory for the president. Well, Professor Hassan, thank you so much again for joining us today. We really appreciate you taking the time. It was my pleasure. That was Rick Hassan, and you can read more of his work at electionlawblog.org or catch him on CNN to help you, you know, walk back from the ledge. And that's the latest. It's Friday, WOD Squad, and today we're talking about a very special pair of pants. MSNBC's Steve Kornacki captured our hearts and minds with his seemingly endless shift on the touchscreen election map starting November 3rd. But he gave a lot of people fashion inspiration, too. The light brown khakis Kornacki wore for days have become a top seller for their manufacturer, The Gap.

One Gap spokesperson said sales of the pants have increased by 90 online after election day so giddy we'd all love to have this kind of influence if you were to start a nationwide clothing trend based on your fits what would that trend be i mean the only thing i'm like consistently wearing now is like masks i guess like i guess if i it's a good trend it sounds it sounds like i'm not wearing anything no i mean i guess like if uh guess if I, it's a good trend. It sounds like I'm not wearing anything. No, I mean, I guess like if, if, if, yeah, if there was something interesting about the masks that I was wearing, or if they were very norm core in the way that I think Steve's core khakis

are, excuse me, I'm just trademarking that right now. Then that would maybe be it. Or like ratty dad baseball caps. One of the one of those two, I think would be the the options for me. I mean, I feel like everything you're saying is already very trendy. Like I feel like you're very on trend for fall. I like to think so. I mean, I'm on trend for, you know, trying to keep myself safe from a raging pandemic. So that's, that's good enough. I, I, I'll take that. Yeah, I just need to, I need to find like something that, you know,

captures the nation's attention mask wise in the way that these, these lovely khakis have done at the gap. But what trend are you thinking about here, Akilah? When you see Steve leading the nation in trends like this, what's going through your mind? You know, I mean, the first thing is, are we sure that they're the core khakis that are like that's the reason why they're selling out? Or is it because of the white supremacists who like khakis? You know, we don't know for sure. I would hope that these are the core khaki, you know, khaki wearers and not the

other tiki torch khaki wearers. But, you know, I think that if I could start a fashion trend based on what I literally wear every day, it seems like giant sweatshirts and like tights, but that's never out of style. That seems like what everyone wears all the time in my, in my reality. Maybe it's because I haven't seen anyone else. I think that everyone dresses like me maybe people aren't doing it also like not wearing socks ever like it would keep me warm if I just wore socks but I just don't like doing it I paint my nails really pretty I feel like that my feet don't sweat there's no point in having the socks so even when I take my walks you know it's just barefoot right in there. Just slide them on in. You're oh, you're you're wearing shoes. You're not walking outside. Right. Yeah. No, I mean, I'm not like sliding my feet into the sidewalk and sliding into the shoes.

I was going to say I was being misled very briefly. Judge. I'm with you. I'm with you on on sweaters for sure. But I think that like you're kind of driving at a point that I'm having difficulty with understanding is like what would be a trend think that, like, you're kind of driving at a point that I'm having difficulty with understanding. It's like, what would be a trend when we're all sort of just kind of loafing, you know, and just, like, adapting to the fact that we are not really responding to trends anymore because we're responding to public health at most? It's a good question. Yeah, you know, fashion, the last bastion of American pop culture in these tough times. Well, just like that, we have checked our temps. Stay safe, stay on trend, and we'll be back after some ads.

Let's wrap up with some headlines. Headlines. the unemployment rate and maybe even some improvement in the labor market, but with many caveats. Unemployment numbers are still higher than they've ever been outside of the pandemic, and the 723,000 number doesn't include the nearly 300,000 people who applied for a different emergency program made for freelancers and part-time workers, which will expire at the end of this year. This all underscores the urgent need for a relief bill, but Republicans and Democrats in Congress remain far apart on those negotiations. Mitch McConnell said yesterday that the state of the economy calls for a targeted bill costing around $500 billion, while Chuck Schumer and Nancy Pelosi are holding firm to a broader $2.4 trillion bill. So exactly where we left off. Yeah, big wheels keep on turning. Well, companies that make cheating detection software are facing criticism from students and teachers who've been forced to use their systems in online school.

These programs typically monitor students at their computers during tests and flag behaviors that they consider suspicious, like switching tabs, clicking too much or excessively moving one's eyes. So now a test can be part multiple choice and part staring contest. Students reported feeling far more stressed under the pressure of these programs, with some cases of people peeing at their desks because they're afraid to move. Critics also accused these programs of being biased against students of color, students with learning disabilities,

and students in low-income households. The backlash against cheating detection software has opened the discussion about why schools are investing in these programs over ones that could enhance the learning experience. Student governments at universities like Miami U and Colorado Springs are pressuring their administrations to throw these programs out. Yeah, good. After our experience with COVID, we've decided to take our public health direction from wolves. Preliminary research from Yellowstone

National Park shows that wolves could help fight off chronic wasting disease, which now infects deer but could one day make the jump to humans. Leaders in this effort will obviously be Dr. Halchi, Dr. Bark, and a task force led by Wolf Vice President, My Paws. Thank you very much. I absolutely murdered that one. Chronic wasting disease is a neurological disease caused by abnormal prion proteins, which are very resilient and therefore very scary. They also cause mad cow disease. And in deer, chronic wasting disease can lead to listlessness, drooling, staggering, and eventually death. Please, deer, wear a mask and don't gather in forests that are indoors, for the love of God. Symptoms of chronic wasting disease make deer easy targets

for wolves, aka feral epidemiologists of the crescent moon. Yellowstone researchers describe the pattern of wolves taking out sick deer as predator cleansing, and they think it has potential for disease management. A more traditional method is for states to allow more hunting in places where the disease is growing. Personally, I have never in my life bet against wolves, and I am not going to start now. Yeah, cosign. Bad news for anyone who is asleep all year and wants to know what they missed. YouTube Rewind, an annual montage of popular trends and creators from the past 12 months, is canceled per an announcement from the company yesterday. YouTube said that given what we've all gone through this year, it, quote,

doesn't feel right to make the video, which probably would have consisted of COVID misinformation from van life couples, hot ones filmed over Zoom, and an in-memoriam section for QAnon people who got their accounts taken away. Overall, YouTube fans weren't too bothered by this news since YouTube rewinds have become pretty unpopular, with 2018's post setting the record for the most dislikes of any video on the platform. Wow. Although maybe, you know, YouTube released the most hated video on purpose to take the pressure off everybody else on the website. It's an inside job for sure. And those are the headlines. Okay, one last thing before we go.

The 2020 election proved Georgia is winnable for Democrats. If you didn't know, while the race hasn't officially been called yet, Joe Biden and Kamala Harris were able to win more votes from Georgia voters than Donald Trump did. And so many voters turned out on both sides that neither candidate in Georgia's two Senate races finished with over 50% of the vote, which is why we're headed to two Senate races finished with over 50% of the vote, which is why we're headed to two Senate runoff elections in January. Yeah, control of the Senate is riding on these two races, and they're tight. But Democrats John Ossoff and Reverend Raphael Warnock have a shot to win and flip the Senate. That's why Votes of America is back with Adopt-A-State, Georgia edition. Sign up to AdoptGeorgia at votesofamerica.com slash Georgia and

keep an eye on your email for the best ways to help organizers on the ground. They flipped the state for Biden and Harris. Let's help them finish it out. That's all for today. If you like the show, make sure you subscribe, leave a review, support public health wolves, and tell your friends to listen. And if you're into reading and not just all the different pant colors available on Gap.com like me, What A Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Akilah Hughes. I'm Gideon Resnick.

And stay tuned for WOD Rewind. It's just us talking about hot sauce but not eating any wings. That's right. Ow, so hot. I'm crying. This is definitely not just ranch dressing that I'm eating. Definitely not a lot of milk at all.

What a Day is a production of Crooked Media. It's recorded and mixed by Charlotte Landis. Sonia Tan is our assistant producer. Our head writer is John Milstein, and our executive producers are Katie Long, Akilah Hughes, and me. Our theme music is by Colin Gilliard and Kashaka.