The Courts Can't Save Him

The hosts look back at the week-long presidential election, which Joe Biden won. They discuss the challenges mounted by the Trump campaign in various states and explain why none of them is likely to change the outcome of the election. They also reflect on some state-level initiatives and put forth their strategy for how President Biden should deal with a split Senate, especially on matters pertaining to the Supreme Court.

A podcast 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


00:03 Speaker 1: Hey, everyone. This is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael look back at the results of last week's election.

00:13 Speaker 2: The people of this nation have spoken. They've delivered us a clear victory.

00:20 S1: They scrutinize the complaints of voting irregularities that the Trump campaign has attempted to bring forward since November 3rd.

00:26 Speaker 3: Millions and millions of people voted for us tonight and a very sad group of people is trying to disenfranchise that group of people.

00:38 S1: 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.

00:54 Peter: 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.

01:11 Rhiannon: Hi, good morning, Sunday morning.

01:13 Peter: And Michael.


01:14 Michael: Hey, everybody.

01:17 Peter: Oh man. This is a special episode. The election was a few days ago, it has now been called by every major media organization for Joseph Robinette Biden.

01:31 Rhiannon: Robinette.

01:32 Peter: And I think I speak for everyone when I say, this was a weird one.

01:36 Rhiannon: Yeah.

01:36 Michael: Yeah, yes.

01:37 Peter: We're a Supreme Court podcast, we're gonna 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.

01:53 Rhiannon: Right. Florida being on the East Coast really fucked the vibe of the whole thing because that was coming in early and I just thought we were fucked.

01:58 Peter: Yeah.

02:00 Michael: Yeah, it really did.

02:03 Peter: Right. Even once the results started looking a little better, Biden winning is moderately good news, Trump losing, fantastic news.

02:10 Rhiannon: Yes.

02:11 Peter: 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 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 gonna block everything. No real hope of substantial progressive legislation. And the Dems maybe at high 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 animists to drive turnout.

02:43 Michael: Right.

02:44 Peter: 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.


03:01 Michael: Yes, it's hilarious.

03:03 Rhiannon: So many dirty diapers.

03:06 Peter: All these fucking morons who spent the past four years openly gloating, and wearing the hats, and flying their fucking Trump flags on their 10-year payment plan boats, these people are now 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 mwaah, just fucking incredible. Go fuck yourselves, go fuck yourselves you fucking losers.

03:43 Rhiannon: Yeah, either way, I love this song, I'm jamming, too. [laughter]

03:46 Peter: Yeah, it's good.

03:47 Michael: Yeah, it's fantastic. It's fantastic.

03:50 Peter: 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. Barring something really unprecedented, at some point in the next three months, he has to admit to himself that he's gotta pack up his shit and leave.

04:14 Michael: Right. World leaders around the globe are just congratulating President-elect Biden. At some point you can't ignore that, it's happening whether or not you want it to.

04:24 Rhiannon: Yeah. I heard stuff about the Secret Service, and US marshals and other sort of federal law enforcement.

04:30 Michael: Just going about the normal thing?

04:32 Rhiannon: 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.

04:42 Peter: Yeah.

04:42 Michael: Oh, really? Awesome.


04:45 Peter: 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.

04:52 Rhiannon: Right, those are the rules. [laughter]

04:54 Michael: Those are the rules.

04:55 Peter: I don't make them.

04:56 Rhiannon: How's that for a little procedure, bitch?


05:02 Michael: I'm gonna call into the FBI with a hot tip about a plot against the president.


05:06 Rhiannon: There's a plot against the president, and it's coming from inside the House. [laughter]

05:14 Michael: In terms of the election week, the real monkey's paw where we talked about how cool it would be to have an election week and then we had an election week and it was truly awful. I'm kind of a data nerd, I taught math at one point in time in my life, in a past life. And so I felt very comfortable about this Tuesday night, when the AP called Arizona, and then certainly Wednesday morning, I was feeling very good. So for this whole week, I think there was this very frustrating divide between me and a lot of my family who were freaking out and who did not have this 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 de-legitimizing mail ballots that while the vote was changing several days after the election, this would be a chance for them to make a case for throwing out mail ballots.

06:31 Michael: 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 saying like, "We haven't called it, but it's pretty much over." Kornacki is sitting there begging the Decision Desk on air, to finally just fucking call Pennsylvania...

06:54 Rhiannon: Right. So he could go to sleep.

06:55 Michael: Yeah, and it was irresponsible. It was a disservice to its viewers. It's a disservice to the public, and it dragged out this period much longer than it needed to. The explanation was like, "We'll let the conspiracy theorists say that the votes aren't getting counted." And all this shit. The conspiracy theorists are gonna say whatever they want. What we saw happen... It was inevitably what happened once they called it, which is an outpouring of support in normalization of President Elect Biden, from world leaders, from other institutions, things that would normalize the loss and start moving...

07:27 Rhiannon: From the streets, yeah.

07:29 Michael: Yeah. Start moving us to the next phase. And they delayed that at least 24 hours, probably 36.

07:36 Peter: But I'm glad they waited for like a Saturday afternoon, 'cause it was just good vibes.

07:40 Michael: Yeah.

07:40 Rhiannon: 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... Certain eventualities. You guys know. I was checking in with you, because I would be like, "Michael, can you calm me down? Michael, what's gonna happen again? Can you please remind me that it's okay?"


08:04 Rhiannon: And yeah, I put a lot of that on the media. I don't understand why... I do understand, 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, 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.

08:31 Peter: Right, right.

08:32 Michael: Right.

08:33 Peter: It's not like an actual foot race.

08:33 Rhiannon: Right. We're not watching people race right now. The votes are done.


08:37 S1: Yeah, Right.

08:37 S1: Right.

08:40 S1: There's no more coming in...

08:40 Michael: Right. We're just [08:40] ____ it.

08:40 S1: There's a total and we're counting them.

08:42 Peter: 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 stressing out for a week and then the next Sunday CNN's like, "Trump wins." And you're like, "Oh, fuck."


09:00 Peter: And it all hits you a once. I don't want that.


09:07 Rhiannon: To be honest, my emotions were so up and down that right now, the memory of this past week isn't even super there, and I wonder in years to come, if I'm trying to recall this awful week, if I'm just gonna black it out because it's too stressful and wild.

09:25 Michael: It's very surreal.

09:26 Rhiannon: Yeah, yeah.

09:27 Michael: It was.

09:28 Peter: Yeah. So we don't wanna get too deep into the politics, but to me, politically, the real lesson of this election was that we are in a new era of politics and political engagement. Even to a greater extent than everyone understood. A lot of key assumptions about politics appear to be 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 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 inevitable. The more people you get out, the larger the margin becomes. But I think that the 2018 mid-terms, and Biden's under performance, make it clear that's not inherently true. Right-wing engagement with politics has reached a point where it's at a perpetual fever pitch and is capable of 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."


10:37 Peter: That's even more clearly wrong now than it was when he said it, because as many people have observed, this is in a lot of ways, a victory for Trumpism, 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. 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. We all knew that to some degree, politics had changed with Trump, but it was still assumed that things that really impact people's material reality, like the economy tanking, would hurt a sitting president badly. But, I think that this 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 re-framed as anger and grievance and redirected at pre-defined out groups. And that perseverance of that 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.

12:03 Rhiannon: Right.

12:03 Michael: Right. And so something I've been thinking about, and it's like, I'm reticent to do too much in-depth analysis right now when we don't even have complete vote counts and demographic data, what the elector 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. Like Michigan, Minnesota, Pennsylvania. Those states generally, they're sort of akin, they move together. And the question is, Why is it much closer than Pennsylvania is going to be and Michigan was, and there's one explanation that sticks out, which is that it had an awful COVID outbreak in October. The worst in the country since New York.

12:53 Michael: And going into this, you would have thought that would have benefited Biden. How do you even reconcile the idea that having an awful COVID outbreak in fucking October helped Trump and the Republicans? What do you even do with that information? I don't wanna say this is definitely what happened, I think it's too early to state that with certainty, but it's concerning, it's 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. That's something that requires a lot of soul searching and a lot of reflection on who you can reach and how you can reach them. That was one big thought I've had, another is that it's very hard to disentangle Biden's performance from the Democrats performance. Democrats did worse than Biden. When all is said and done, it seems like he's gonna have a result that if you told me a year ago Democrats would win by five points nationally and get 300 electoral votes, you'd be like, "All right, great. That's a successful campaign."

13:54 Michael: But what do you do with that when they lose ground in the house and they only pick up one seat in the Senate? They could still pick up two more, I don't wanna write off Georgia just yet. I think for sure, Warnock could win that race, Ossoff has a harder challenge. But 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 those answers are gonna be hard to come by. And there's a lot of uncertainty, like Peter said, about what this is gonna 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.

14:38 Peter: Yeah.

14:39 Rhiannon: Yeah, and I think a lot hinges on what kind of role Trump takes after this. People talking about him leaving the public space and not being a public figure anymore, this man isn't gonna give up the attention, 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. 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 the next day they up and they're like, "Okay... "

15:26 Peter: It's also not how cults work.

15:28 Rhiannon: Right, exactly. That's not how...

15:29 Michael: It's not.

15:29 Rhiannon: In particular, Trump's base works. 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 actually grew his base, got more people to vote for him. Michael, I think you're right, that 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.

16:09 Michael: Absolutely.

16:10 Rhiannon: 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."

16:24 Michael: They're all crooks.

16:25 Rhiannon: Right, exactly. "They're all crooks, and so I have to choose the crook that speaks to me the best."

16:32 Peter: Yeah, and they're living on a diet of fucking Facebook posts.

16:35 Rhiannon: Right, exactly.

16:38 Peter: It's a completely different type of media consumer than we've seen in political history.

16:43 Rhiannon: Right.

16:43 Michael: Yeah. When I worked on campaigns, we often had vote targets, educated guesses about 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 hit their vote targets. Biden basically matched Hillary's turn out in Miami-Dade County, which was 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. Now I'm coming out and I'm voting for the President."

17:19 Rhiannon: "I want more of this, baby."

17:20 Peter: They were mad about LeBron supporting Biden. This all makes sense.

17:25 Michael: Yeah that's right. So it's like...

17:26 Rhiannon: But I think, at the same time, it's really important... It's a little early to bring it into the conversation, but in Florida, a referendum on the minimum wage, raising the minimum wage to $15 an hour, passed in Florida with over 60% support.

17:41 Peter: Yeah.

17:41 Michael: Which was a policy supported by Joe Biden, it was on his platform. I believe he even cut ads about it.

17:46 Rhiannon: Yeah, these are the same people voting for Trump on the one hand, and also to raise the minimum wage to $15.

17:55 Peter: Fucking crazy.

17:56 Rhiannon: So, that's what I'm talking about. There's a disconnect there.

17:58 Michael: Right.

17:58 Peter: A massive failure of the Democratic Party. If the distance between the policy that is on their platform...

18:04 Rhiannon: Yes, yeah.

18:05 S1: And the votes garnered by the actual candidate, if there's a, whatever, 15 point gap almost, that is just a massive political failure.

18:14 Rhiannon: Exactly.

18:15 Peter: The one thing, before we start talking about the legal shit going on, I wanna 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.

18:31 Rhiannon: Yes.

18:32 Peter: If Trump refuses to concede in any meaningful way and the GOP tries to move on, you can see 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 mid-terms they'd be fucked.

19:01 Michael: Right.

19:01 Peter: Alright, let's talk about the law.

19:04 Rhiannon: Sure.

19:05 Peter: Obviously, the major concern that we voiced, going into this, was that 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 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 Quinnipiac 2%.


19:45 Rhiannon: Right. At the end of this, can you guys explain to me like why polls are so wrong?

19:49 Peter: 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."


20:01 Rhiannon: Okay. So it's like in the outreach, they're not reaching people.

20:03 Peter: Yeah. A buddy of mine on Twitter was like, "It's obviously they're under-counting. Polls are under-counting 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 like, "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.


20:29 Peter: 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 gonna 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 color-able legal hook here. And that's mostly because the margins are just too big.

21:06 Rhiannon: Yeah.

21:07 S1: Yeah.

21:07 Peter: 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.

21:29 Rhiannon: Yeah, your poor brain.

21:29 Peter: Most of it is just sort of almost conceptual. They have a general sense that some fraud was occurring. They have no exact idea as to what that entails or how it's done and of course they can't articulate how they know that it's happening.

21:42 Michael: But they know that this can't be right.

21:43 Rhiannon: Right.

21:45 Peter: Yeah. That's it. They just parrot the Trump line that mail-in ballots are shady. And then they latch on to every sort of error or singular instance of fraud that they can as evidence that something is afoot even though they have no real idea what that is. And some as always, just the biggest fucking bunch of morons on the planet.


22:07 Rhiannon: No. That's it. And that tracks with this idea of a general sort of skepticism. You can tell me whatever the numbers are but I just don't think it's right. That's how the Trump base reacts when you talk to them about policy. Whatever it is you're telling me, I just think that's wrong.

22:23 Peter: Yeah. I think it would be useful though to just go state by state and touch on some of the legal challenges and explain why they're all pretty much just dumb bullshit.

22:31 Rhiannon: 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 the state or people who died and they have not up to this point provided any real evidence of fraud except [chuckle] 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.

23:36 Peter: Yeah. 100%.

23:37 Michael: See that old lady.

23:37 Peter: The only reason that this has any teeth... So first of all they are challenging batches of ballots and that's important. It's definitely not gonna be enough at this point to flip Nevada but that was 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?

23:55 Rhiannon: Sure.

23:55 Peter: People leave the state and if they... Especially if they want their vote to matter in a swing state. It's never gonna flip Nevada. They're never gonna be able to actually track this stuff down.

24:04 Michael: They're walking into a PR issue too because there was a thing that leaked that they had called out specific geographic tags or whatever, it turns out they were for Armed Services posted in Europe and Asia and stuff. And so they're gonna sit here and start saying that the military can't vote. The collateral damage here, if they start trying to challenge everyone who voted out of state is gonna be not pretty for them.

24:26 Rhiannon: Right. Exactly. This 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 won altogether, it just doesn't matter. The numbers are not there. It's not gonna change the result.

24:52 Peter: Yeah.

24:52 Michael: Right.

24:52 Peter: Right. Okay, there's no pertinent legal challenge in Wisconsin. The bottom line there is there's gonna be a recount. The Trump campaign has requested a recount, although Wisconsin law requires that they pay for the recount which cost $3,000,000 and there are rumors that they have not ponied up.


25:09 Rhiannon: Broke-ass, sorry-ass, punk-ass, dumbass bitches.

25:13 Michael: Right. Tell 'em.

25:14 Peter: Also it was a 20,000 vote margin. A recount changing that would be unprecedented just completely bizarre.

25:21 Rhiannon: Right. Right.

25:21 Michael: Yeah. Florida is a much bigger state their recount changed like 1000 votes I think.

25:26 Rhiannon: Right. Right.

25:26 Michael: And there was a recount recently in Wisconsin for Scott Walker and it only changed a few hundred votes.

25:31 Rhiannon: 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.

25:38 Peter: 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 over 150,000 votes right now.

25:51 Michael: Yeah. It's comfortable.

25:53 Peter: Yeah. 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 engage 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.

26:28 Rhiannon: Love that.

26:28 Peter: Yeah. At some point, the GOP strategy openly shifted to challenging literally every single ballot, so 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 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 still being talked about, in right-wing circles as evidence that some fraud is occurring. And I think this brings us to Pennsylvania, which is where most of the drama is, currently. Most of the substantive issues in Pennsylvania unfolded before the election, which we've talked about...

27:16 Rhiannon: That's right, yeah.

27:18 Peter: When the GOP challenged late arriving ballots, as a result... Well, 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.

27:43 Michael: Right. And I think this highlights that Trump's legal operation writ large, prior to the election, was really effective, and it was everywhere, it was in a bunch of different states, literally hundreds of lawsuits, they racked up a ton of wins, very hack-ish 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.

28:09 Rhiannon: Right. You could see it was a concerted effort, right? They were organized.

28:13 Michael: 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 the situation, like in Pennsylvania, where 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, 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 work...

29:01 Rhiannon: Yeah, yeah, totally.

29:03 Michael: To make this seem not legit, but instead, what they've done is helped Pennsylvania do this in a way, where the results are unassailable.

29:11 Rhiannon: Yeah, yeah, so their over-litigiousness, pre-election, fucked them for all of these challenges in the past week, after the votes were in.

29:19 Peter: Right, they did their best to cheat. But what are you gonna do, when you're cheating and your opponent's beating you?

29:23 Rhiannon: Right, right.

29:23 Peter: "Well, that was that."

29:27 Michael: Right.


29:27 Rhiannon: We gave it the good college try, y'all.

29:31 Michael: And so I do think who deserve some praise are one, all the people involved in the actual administration of these elections.

29:38 Peter: Yeah.

29:39 Michael: And I think, Democratic party made a real big effort in the last few months, to educate voters about...

29:42 Peter: I think that's right, yeah.

29:44 Michael: The best ways to vote, and when to do it. As a result, there are very few ballots even in the segregated population in Pennsylvania, 'cause most people voted on time, or if their mail ballots were late, they went and cast provisionals in person instead and people got it right. And then the states did their part to count right. And as a result, Trump has nowhere to go.

30:05 Peter: Yeah.

30:06 Michael: The courts aren't gonna be very receptive to their arguments.

30:08 Peter: 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.


30:27 Michael: Yeah, exactly. They didn't have nothing, they're literally like, "They're not letting us in." "Well, are they really not letting... "

30:33 Peter: Right.

30:33 Michael: "Well, they're letting us in."

30:36 Peter: Yeah, right.

30:37 Michael: "I got to admit."

30:37 Peter: There are some developments in Pennsylvania... 'Cause again, I'm deep in 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 back date 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. 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 her grieving husband or something, cast a vote on her behalf, after she died, which is illegal, but that's not gonna give Trump Pennsylvania.

31:23 Rhiannon: Right, what I love about this is, "Okay, minus one, Biden." What do you want? Okay. That doesn't do anything, bro. [laughter]

31:32 Michael: Yeah.

31:32 Peter: It has long been the republican position... This is no joke, they think that Democrats are just rounding up the names of dead people and having them vote, in bulk.

31:42 Rhiannon: Right, right, yeah.

31:43 Peter: 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 my genuine best guess is that they saw a dude named Joe Frazier had voted and they were like, "Joe Frazier, the boxer? That guy's dead." My best example of how far right media is handling this, like the Breitbart's 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...

32:15 Rhiannon: Oh, right.

32:16 Peter: 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.

32:25 Rhiannon: Right, he was on the highway.

32:25 Peter: 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 every right wing website was like, "USPS worker caught bringing the ballots across the border... "

32:40 Rhiannon: Right, right, yeah.

32:42 Peter: And it's like, "Are you fucking kidding me dude?"

32:42 Michael: Three ballots.

32:44 Peter: This shit is important to some to read, because what they're implicitly accusing Democrats of, is a fraud scheme on par with the greatest crimes in history, in its complexity.

32:55 Rhiannon: Right, right.

32:55 Peter: And what they have as evidence are these just little bullshit instances, of what maybe constitutes voter fraud. Not to mention that democrats didn't win the Pennsylvania state legislature, for example.

33:10 Rhiannon: Right, right.

33:10 Michael: Right.

33:11 Peter: Meaning that if there were hundreds of thousands of faked ballots, many of them would have had to have votes for Republicans on them. It doesn't seem like that would have been the move.


33:20 Rhiannon: Right, right.

33:20 Michael: No. I would have gone big, especially given the polling, you have all this pulling information and all this expectations, Democrats that they could win 53, 54 senate seats.

33:30 Rhiannon: Right, yeah, yeah.

33:31 Michael: Instead, we're praying that they could, by the skin of their teeth, get to 50.

33:36 Rhiannon: Don't you think we would have given ourselves a landslide? Why...

33:39 Peter: Right, right.

33:40 Michael: I do think people have trouble with orders of magnitude, the difference between three ballots and 100,000 is like the difference between zero and 100,000, they're just not even in the same universe and people have trouble even comprehending what 100,000 ballots would look like and what it would take to falsify that.

33:58 Rhiannon: I completely, embarrassingly relate, because I don't understand the difference between a million and a billion.

34:04 Peter: But that's like a human thing. You don't have to be embarrassed. That's like a normal human...

34:07 Michael: Yeah, that's normal.

34:08 Peter: You're not supposed to be able to comprehend...

34:10 Rhiannon: Okay, well, this part is embarrassing, which is that for a long time, many years, I thought Justin Bieber was a billionaire.


34:15 Peter: You moron, he's only worth $300 million. Georgia's currently about a 10,000 vote race, tightest of the outstanding states, and as such, seems like a plausible target for litigation. But elsewhere, so far, the GOP has been able to do nothing but stir up rumors about technical glitches that they found suspicious.

34:41 Rhiannon: Yeah.

34:42 Michael: Yeah.

34:42 Peter: Worth noting that just yesterday, the 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.

34:52 Rhiannon: Amazing.

34:54 Peter: 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 a 10,000 ballot gap that now exists between the candidates.

35:18 Michael: The Georgia lawsuit, that was the one where the evidence was somebody who's like, "Oh, those came in late." And then when they had to swear that at oath, they were like, "Well, I think that... "

35:27 Peter: Yeah, yeah.

35:28 Rhiannon: Right, "I'm actually not sure if those came in late."

35:31 Michael: They had an aura, a late ballot aura.

35:33 Peter: Right. Right, right.

35:34 Rhiannon: Now that I read that this says under penalty of perjury, I'm not so sure that I really know when they came in.

35:40 Peter: "Your Honor, 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 speak up in conservative media, like, "I have witnessed this wrong doing." So the lawyers descend on them and they're like, "Will you swear to that?" And they're like, "Oh. Well, maybe."


36:07 Rhiannon: "When you put it that way."

36:08 Peter: Right.

36:08 Michael: Yeah, Trump is... 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." And there's like 53 ballots, it wasn't even that many.

36:21 Peter: 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 less scrutiny than in-person votes, and that's unconstitutional and 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.

37:11 Michael: Right.

37:13 Rhiannon: Right.

37:14 Peter: They're never gonna get that, but this is 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 gonna 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.

37:39 Michael: Right.

37:39 Rhiannon: Exactly.

37:40 Peter: Alright, before we keep going, let's go to an Ad. One thing we should address... We did an episode, a few weeks back, about an electoral college coup, "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 gonna get there. What would be the basis for really rejecting it? They would need the full support of the full Republican delegation, across these states. That would be very difficult.

38:46 Michael: I think this stuff has been in the air a little bit, Newt Gingrich mentioned it on Fox News, other politicians have talked about it, and clearly, early on, in election week from hell, 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 the head of the delegation in the Pennsylvania House, I think, has said that they're not gonna do it. Which is, I think, basically sort of being like. At the end of the day, they counted the votes in a way that people generally believe the results, and we can't even pretend in a plausible way.

39:39 Peter: So let's move in to some sort of interesting down ballot stuff. You could tune in to some nerd ass podcasts, for senate and house stuff, but I feel like there are some actually genuinely good news, in the DA election space. Rhia, are you up on this stuff?

39:53 Rhiannon: Yeah, most importantly, really big one is that in Los Angeles County, progressive prosecutor candidate, George Gascon, or Gascon...

40:02 Peter: I don't think it's Gascon, that's the beauty and the beast guy.

40:05 Rhiannon: Well, it has the accent.

40:07 Michael: Gascon?


40:09 Rhiannon: In Los Angeles County, the progressive prosecutor candidate, George Gascon won. This race was by the New York Times called, "The most important district attorney race in the country." Gascon is now the district attorney in a jurisdiction over 10 million people, so this is a really big win in sort of the decarceral... 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.

40:54 Peter: Yeah, also, does anyone know what a one bedroom goes for, over there?


41:01 Rhiannon: 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 in saying that, as somebody who lives in Texas. Arizona, Montana, New Jersey, South Dakota, way to go. Texas, get your shit together.

41:42 Michael: Did we mention, I think DC decriminalized shrooms, as well.

41:46 Rhiannon: Oh, right. Yeah.

41:47 Michael: Things gonna get weird, in the next legislative session. [chuckle] Control of the Michigan State Supreme Court changed, from Republicans to Democrats.

41:58 Rhiannon: That's huge.

42:00 Michael: That'll be good, because 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.

42:10 Rhiannon: Yeah.

42:11 Michael: Absolutely.

42:12 Peter: A bunch of other stuff happened, there was some good news in 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, is just replaced now, with the words, "The white race is the superior race," so small step forward in Louisiana.


42:36 Michael: Mississippi got rid of their weird electoral college that they had for state-wide office.

42:41 Rhiannon: Oh, yeah.

42:42 Michael: Which is good. Which is a real... A legacy of Jim Crow and a step in the right direction, for having more representatives and fair elections at the state level.

42:49 Rhiannon: Right.

42:50 Peter: Yeah, both Utah and Nebraska modified their constitutions, to remove slavery as a punishment...

42:56 Michael: For crimes, yeah.

43:01 Peter: For crimes. Congrats.

43:01 Rhiannon: Thanks.


43:01 Michael: Way to keep up with the times.

43:03 Peter: That's a joke about how behind the times Utah and Nebraska are. But that puts them ahead of the United States Constitution...

43:11 Rhiannon: Agreed.

43:12 Peter: Which still allows for slavery as a punishment.

43:12 Rhiannon: That's what the 13th Amendment says.

43:15 Michael: Yes.

43:15 Peter: 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.

43:25 Rhiannon: Just beautiful content. Yeah.

43:27 S3: Obviously, we're not quite there, but we should talk about what this election means for the court, moving forward. Obviously, the 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. 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. 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. It feels like wasting ammunition, to say, "Alright, we're gonna ignore the Supreme Court," when you can't even get 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 gonna just be passing executive orders and shit.

44:34 Michael: But this does highlight the importance of the Georgia run-offs.

44:37 Peter: Yeah.

44:39 Michael: Even if Ossoff 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 run off races.

45:14 Peter: I am sort of mentally and emotionally preparing myself for the Democrats to score an own goal here, by passing Ro Khanna's forward-looking, term limits bill, so that the term limits only apply to Biden's appointees.

45:28 Rhiannon: Right. Yeah, right. [laughter]

45:30 Michael: Right.

45:30 Peter: Alright, we should talk about 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.

45:43 Rhiannon: Yeah, he's eating...

45:43 Michael: He could.

45:44 Rhiannon: A lot of cheeseburgers still.

45:45 Peter: 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.

45:57 Michael: Yeah. And Alito and Thomas are both dumb enough right-wing nuts that I could see them at mask-free, indoor parties or whatever.

46:06 Rhiannon: Oh, good point. Yeah. Oh, definitely.

46:07 Michael: In two months, when it's 500,000 Coronavirus cases a day, in the middle of this awful surge, they could definitely get sick.

46:17 Peter: Yeah. If you're coming home every night, and sharing a bed with Ginni Thomas, you're never safe.


46:27 Michael: Yeah, and I do think if we assume that Democrats can only win one or none of the Georgia run-offs 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 Brier 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 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 gonna be around for 15 years.

47:10 Peter: A bluff that I think Biden should call because the optics of the Republicans...

47:14 Michael: I agree.

47:14 Peter: Holding back on a black female candidate... Which was Biden's promise, would be disastrous I think, for them.

47:21 Michael: Absolutely. And after all their shit from Merrick Garland and Coney Barrett, if then in the first year of his term, they're still not giving his nominee a hearing or they're voting them down on party lines, like, fucking do it. I agree, I think the Biden position here has to be sort of picking fights with the Supreme Court and with the Senate on this stuff and 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.

47:55 Peter: I think there really is an open question about whether McConnell continues the Obama era strategy of just stone-walling on lower courts.

48:03 Michael: I think that's a tougher... They don't have a huge majority, they can only handle losing one or two votes basically. And Biden has long relationships with a lot of key senators, with Grassley, with Graham. Look, I don't wanna buy into this bullshit that they're gonna snap out of it 'cause they're not, they're gonna 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 reduce the temperature on this. 'Cause they've already won, they have control of major circuits. They control the Fifth Circuit, they control the Eleventh 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 a lot of the sources... 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 the ruling they want heading into the Supreme Court where then they have a six vote majority. So why keep it a battle ground if they can make it seem A political again, that might be in their interests.

49:21 Peter: 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...

49:29 Michael: I agree.

49:29 Peter: Pass meaningful legislation, what else do you have to do?

49:31 Michael: Yeah.

49:31 Rhiannon: Right.

49:31 Peter: Besides fight over this stuff.

49:32 Rhiannon: Exactly.


49:40 Peter: Alright, next week we're actually doing a case. Arizona Free Enterprise v Bennett case about campaign financing, 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. [laughter] The depths of which we cannot possibly prepare you for. [laughter] Follow us on Twitter @fivefourpod. Enjoy the victory, enjoy watching Donald Trump have what I can only imagine is going to be a sustained and lengthy bitch fit over the course of the next week or two.

50:35 Rhiannon: I'm gonna very much enjoy that and I'm gonna enjoy screaming at Joe Biden and his administration for the next four years.

50:43 S1: Fivefour's presented by Westwood One and Prologue Projects. This episode was produced by Kacha Kamkoba with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

51:06 Speaker 7: From The Westwood One Podcast Network.