Latest / rationally BASED / Episode 44 | Midterm Mayhem

Transcript

Episode 44 | Midterm Mayhem · rationally BASED

0:00
SPEAKER_02: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:04
SPEAKER_02: I'm Elon Warman, a law professor at the University of Minnesota Law School.
0:07
SPEAKER_01: And I'm Josh Kleinfeld, Rouse Professor of Law at Scalia Law School.
0:11
SPEAKER_00: And I'm Catherine Johnson with Center of the American Experiment.
0:14
SPEAKER_02: Catherine, what's on deck?
0:16
SPEAKER_02: Some midterm mayhem.
0:18
SPEAKER_00: A special midterm episode for everyone.
0:21
SPEAKER_00: Except first, we are going to uh head over to Brazil and look at what's going on with their elections because it's shocking, frankly.
0:29
SPEAKER_00: And the legal implications um have a lot of parallels in the US.
0:33
SPEAKER_00: So we'll start there and then we'll move uh on to Alaska and see what exactly can be done when the left runs a fake candidate to try and confuse voters.
0:42
SPEAKER_00: Third, can the federal government force California to actually look into whether it's letting non-citizens vote when it seems like clearly they are?
0:51
SPEAKER_00: Fourth, we'll talk about the polls.
0:53
SPEAKER_00: Recently, there have been revelations of totally fake polls floating around, but even the real polls can be manipulated.
1:00
SPEAKER_00: What should we make of the midterm polls and how much stock should we put in them?
1:04
SPEAKER_02: Make sure to stay to the end.
1:05
SPEAKER_02: Let's dive in.
1:19
SPEAKER_02: All right, as always, please hit that like and subscribe button.
1:23
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1:34
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1:35
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1:37
SPEAKER_02: We would love it if you guys gave us this early support.
1:41
SPEAKER_02: Okay, so before we get to the midterm mayhem that I wanted to talk about, um, there is one piece of news out of the U.S.
1:48
SPEAKER_02: Court of Appeals for the Fifth Circuit that I just wanted to highlight, okay, because it's one zero, you know, uh Elon versus Josh on this, though we really ultimately agree, so it's not like that big of a deal.
1:58
SPEAKER_02: But remember, we've talked a lot on this podcast about mandatory detention under 8 USC section 1225, the Trump administration's interpretation of that and whether they require detention of all aliens who came illegally, no matter how long they have been here.
2:12
SPEAKER_02: We've mentioned that the Supreme Court has granted Sir Shirai in this case, so they will be addressing that.
2:17
SPEAKER_02: But there was a separate question, which is even if the statute requires mandatory detention, is that unconstitutional because it violates due process?
2:25
SPEAKER_02: And if you listen to episode, what was it, 34, I think?
2:28
SPEAKER_02: Uh one of our actually most watched episodes, and listen to episodes, Josh and I were sort of debating whether it was substantive due process versus procedural due process.
2:36
SPEAKER_02: We ultimately agreed uh that it was uh the that there was no real due process concern.
2:41
SPEAKER_02: I think we agreed on that, right, Josh?
2:42
SPEAKER_02: Maybe not.
2:43
SPEAKER_02: I think I can't, but yeah, yeah.
2:44
SPEAKER_02: So that either way that the challenger should lose.
2:46
SPEAKER_02: Uh and uh the Fifth Circuit took it on Bonk and the full court uh said it is indeed a substantive due process challenge.
2:53
SPEAKER_02: Uh and so I would be, you know, aside from just you know enjoying that the most based circuit, the Fifth Circuit, uh, has agreed with me on that small quirk.
3:01
SPEAKER_02: Um I just wanted to flag that this might go up for Sersi Rorai soon as well, in line of the Fifth Circuit decision.
3:07
SPEAKER_02: And in fact, it would make sense, I think, for the Supreme Court to decide both the statutory question and the constitutional question together.
3:12
SPEAKER_02: Otherwise, the issue is just gonna recur.
3:14
SPEAKER_02: And so that is the latest development out of the Fifth Circuit.
3:18
SPEAKER_02: Okay.
3:19
SPEAKER_02: Assuming no comment from Josh.
3:21
SPEAKER_01: I I guess I would just say um, congrats, round one to Elon.
3:25
SPEAKER_01: I just want to be a good sport about this.
3:27
SPEAKER_01: So you won first round.
3:29
SPEAKER_01: You know, I think my perspective was it's procedural due process as a matter of sort of conceptual classification.
3:34
SPEAKER_01: And um and and I thought that the uh claim of procedural due process had some merit, though I'd ultimately decide against it.
3:42
SPEAKER_01: And I think you were stronger against it and and on the substantive due process side.
3:46
SPEAKER_01: So we will see what the what the Supreme Court says if it grants cert.
3:51
SPEAKER_02: Okay, great.
3:52
SPEAKER_02: I appreciate your being a good sport.
3:53
SPEAKER_02: I will not be such a good sport if I lose this uh at the Supreme Court.
3:57
SPEAKER_02: No, no, of course, of course I will be a very good sport.
3:59
SPEAKER_02: Okay, topic one, I wanted to kick us off because I was so passionate about this.
4:04
SPEAKER_02: Um Brazil.
4:05
SPEAKER_02: This is all about elections and the left shenanigans and legal implications.
4:10
SPEAKER_02: And I just had to talk about what's going on in Brazil for the uninitiated um Bolsonaro, the candidate Flavio Bolsonaro, has fled to the United States.
4:21
SPEAKER_02: It was apparently extracted uh by uh secret US agents operating in Brazil because after losing by a razor-thin margin, um, and after uh actual some election shenanigans, uh his passport was ordered seized um seven minutes after uh the election uh was called uh or was ordered to be uh seized, um uh relinquished, surrendered, uh, and he ended up fleeing to the United States because that is totally healthy uh for uh a democracy to do.
4:50
SPEAKER_02: Let me I just wanted to highlight a few things that I've wanted to talk about, uh, and this is the excuse uh to do it.
4:55
SPEAKER_02: So here I go.
4:57
SPEAKER_02: Let's talk about the 2022 election.
4:59
SPEAKER_02: Okay, this was very close.
5:01
SPEAKER_02: It was a thin margin, again, separated the conservative, Yair Bolsonaro, I don't know how to pronounce his name, um, but uh the father of the current presidential candidate.
5:10
SPEAKER_02: And again, the the the uh opponent is Lula da Silva, who is a communist, hands-down communist, leftist, Marxist uh guy.
5:18
SPEAKER_02: Um, and so Bolsonaro didn't accept the results.
5:21
SPEAKER_02: And like, look, this is again Yair Bolsonaro in 2022.
5:25
SPEAKER_02: Uh there wasn't much evidence of actual fraud, but the complaint was there are no paper trail, there are no paper ballots, it's all electronic, which of course does undermine the confidence in election, right?
5:34
SPEAKER_02: And how easy is it to manipulate it?
5:36
SPEAKER_02: And again, we don't know because it's so hard to detect fraud with that kind of thing if there's no paper trail, right?
5:41
SPEAKER_02: But the point is maybe Bolsonaro cynically took advantage of that.
5:44
SPEAKER_02: We don't know.
5:44
SPEAKER_02: That's really not the point.
5:45
SPEAKER_02: After he conceded in 2022, as a thank you, right, and he transferred power because um I think uh his party had been in charge.
5:52
SPEAKER_02: I don't know if he had been in charge, but he his party at least had been in charge.
5:55
SPEAKER_02: So I think he was had been the president and was running again.
5:58
SPEAKER_02: He transferred power, and then Lula da Silva uh turned around and said, Thank you, you're under arrest, and we are going to try you for um uh attempting a coup.
6:08
SPEAKER_02: And look, uh uh they sentenced him, the Supreme Court of Brazil sentenced him to 27 years in prison where he is currently there rotting.
6:17
SPEAKER_02: Now, really, what was his crime?
6:19
SPEAKER_02: All he did was challenge the results of the election and question the integrity of the election.
6:24
SPEAKER_02: There was some evidence that some military leaders had made some proposals, unclear how serious, about how the right wing po party could stay in power, right?
6:34
SPEAKER_02: And apparently it included like one kakamami theory that some general would assassinate, you know, uh Lula da Silva or whatever, which is not crazy for Latin America.
6:42
SPEAKER_02: Like, this is how politics worked for the last half century, right?
6:45
SPEAKER_02: So it's like would not be surprising in some respects.
6:48
SPEAKER_02: But there was really zero uh credible evidence tying this to Bolsonaro himself.
6:52
SPEAKER_02: It's really unclear how um serious these um proposals, ridiculous proposals were.
6:58
SPEAKER_02: Um wouldn't surprise me if they actually planted uh the generals to say these things so they could tie it, you know, to yeah, you're Bolsonaro, but whatever.
7:06
SPEAKER_02: Here's what I really want to talk about.
7:08
SPEAKER_02: September 11, 2025, the New York Times ran this story.
7:12
SPEAKER_02: Bolsonaro sentenced to 27 years in prison for plotting a coup in Brazil.
7:17
SPEAKER_02: And they explained that four of the five justices of the Brazilian Supreme Court convicted him.
7:21
SPEAKER_02: Now, I want to ask who are these justices?
7:23
SPEAKER_02: I want to quote from the New York Times piece.
7:26
SPEAKER_02: Here it is.
7:26
SPEAKER_02: Mr.
7:27
SPEAKER_02: Bolsonaro's conviction was widely expected, a view reinforced by the makeup of the five-member panel of Supreme Court justices judging the case.
7:35
SPEAKER_02: In addition to Justice Mora Alexander Moreas, right, whom Mr.
7:39
SPEAKER_02: Bolsonaro has attacked openly, this is the judge whom Elon Musk has been fighting, right, on X.
7:44
SPEAKER_02: He wants to suppress X, he wants he banished X, he wants to suppress all opposition to him.
7:50
SPEAKER_02: Um he's also the judge who ordered the passport to be seized of the son, right?
7:53
SPEAKER_02: This guy clear Marxist totalitarian, insane judge, okay, who has basically assumed all sorts of power for himself.
8:01
SPEAKER_02: Okay, so he was on the panel.
8:02
SPEAKER_02: Who else was on the panel?
8:04
SPEAKER_02: I quote a justice who is Mr.
8:06
SPEAKER_02: Lula's former personal lawyer, and another who's Mr.
8:10
SPEAKER_02: Lula's former justice minister, a close ally.
8:13
SPEAKER_02: So three of the four people who voted to convict on this five-person panel, a majority of this panel, had close personal ties to the uh opposition, Lula da Silva, to the guy who's prosecuting, okay, Bolsonaro.
8:27
SPEAKER_02: The New York Times says this word for word and doesn't bat an eye.
8:31
SPEAKER_02: No one's like, uh, under the American system, they would be recused.
8:35
SPEAKER_02: Like this seems like a conflict of interest.
8:37
SPEAKER_02: Hmm, maybe this is politically motivated.
8:39
SPEAKER_02: Maybe you should have like a neutral panel of judges.
8:41
SPEAKER_02: No, it doesn't matter.
8:42
SPEAKER_02: This is like, this is how you know you beat authoritarians.
8:45
SPEAKER_02: This is how you beat totalitarians by literally stacking your court with allies and imprisoning your opponents.
8:50
SPEAKER_02: Like, are you flipping?
8:52
SPEAKER_02: If this weren't a family-friendly podcast, I would say the other word.
8:54
SPEAKER_02: But are you flipping?
8:56
SPEAKER_02: You're kidding me.
8:56
SPEAKER_02: Like, this is utterly insane.
8:58
SPEAKER_02: It's straight out of 1984 and the USSR playbook, which brings us to 2026.
9:02
SPEAKER_02: And I know uh Catherine, we had some uh data on the recent elections, and then um we'll get Josh's thoughts and then we'll move to America.
9:09
SPEAKER_00: Yeah, what is it about the media that has like an endless amount of sympathy for anything going on anywhere not in America?
9:15
SPEAKER_00: And then in America, when we have literal election shenanigans, as you described, what's going on in Brazil happening in Alaska, they're like, no, it's fine, it's fine.
9:24
SPEAKER_00: But okay, let's bring us to 2026.
9:27
SPEAKER_00: Um, in the elections on October 4th of this year, just a few weeks ago, four members of the Bolsonaro family won elections.
9:34
SPEAKER_00: There's uh Michelle Bolsonaro, the wife and former first lady.
9:38
SPEAKER_00: She was elected a senator for the federal district with the highest vote total there.
9:44
SPEAKER_00: First time a former first lady has won such a seat.
9:47
SPEAKER_00: We also have Carlos, the son, he was elected senator for uh Santa Catarina with 1.9 million votes about or 25%.
9:56
SPEAKER_00: Jair Bolsonaro, as you said, the youngest son, he was elected federal deputy for Santa Catarina, and Renato Bolsonaro, uh that's his brother.
10:04
SPEAKER_00: He was elected federal deputy for Sao Paulo.
10:08
SPEAKER_00: Okay, and then there was a fifth family member, Flavio Bolsonaro, eldest son of Jair, already a senator.
10:14
SPEAKER_00: He won 48.2% of the vote compared to Lula's 45% of the vote.
10:21
SPEAKER_00: Now, Bolsonaro's party won 121 seats in what I'm calling the equivalent of the House of Representatives, basically.
10:29
SPEAKER_00: Lula's only won 70.
10:31
SPEAKER_00: So the right wing parties overall have about 300 seats out of a total of 513.
10:37
SPEAKER_00: Otherwise, like it's overwhelming majorities.
10:40
SPEAKER_00: In the Senate, it was 29 members of Bolsonaro's party to only nine from Lula's party.
10:46
SPEAKER_00: The total right wing parties have about 50 seats out of 81.
10:50
SPEAKER_00: They're again overwhelming majorities.
10:52
SPEAKER_00: Despite all of this, somehow Lula's percent of the vote went up from 45% to almost 52% in the runoff, which is an increase of like 11 million votes.
11:04
SPEAKER_00: But moreover, even though there is a supreme electoral court with authority over election matters, a single justice of the ordinary Supreme Court with no authority in law whatsoever, I believe, ordered polling to remain open for two hours after polling had already closed.
11:20
SPEAKER_00: And we have no idea if the machines were already locked down or where there was more voting happening, but the request was made by Lula and the justice, which as you said, is his former personal defense attorney agreement.
11:34
SPEAKER_02: Okay, this is so obviously insanely outrageous.
11:37
SPEAKER_02: First of all, the whole thing is they found 11 million extra votes.
11:40
SPEAKER_02: Like, okay, okay, they didn't need to do these extra shenanigans, right?
11:45
SPEAKER_02: What the Supreme Court justice basically did reminds me of what Adrian Fontez did, who was their Maricopa County recorder in 2018, where he opened during the midterms there after Trump first got elected in 2016.
11:55
SPEAKER_02: This was the first midterms after that, and it was a contested race in Arizona.
11:58
SPEAKER_02: He opened up the weekend before the elect the election, because during the early voting period, emergency vote centers only in densely populated democratic areas.
12:06
SPEAKER_02: You know, it's like this is exactly the kind of thing that they do, right?
12:09
SPEAKER_02: I mean, this is not a healthy democracy.
12:11
SPEAKER_02: This is why we have election laws, right?
12:13
SPEAKER_02: Because everyone wants to understand what the rules are in advance.
12:15
SPEAKER_02: And when you manipulate them at the last minute, uh, then, you know, it's just rife for unfair advantage, rife for fraud.
12:22
SPEAKER_02: It's like, again, when Democrats in Pennsylvania and Wisconsin said, well, because of COVID, you know, we change a bunch of rules at the last minute.
12:28
SPEAKER_02: It's like, well, that's a problem.
12:30
SPEAKER_02: We're not saying dead people voted.
12:31
SPEAKER_02: We're not saying there's fraud.
12:33
SPEAKER_02: But what we are saying is election laws exist for a reason.
12:35
SPEAKER_02: They exist to deter opportunities for fraud.
12:38
SPEAKER_02: They exist so everyone understands the rules of the game before it's played.
12:41
SPEAKER_02: And then it undermines confidence and creates opportunities for fraud when you change them at the last uh at the last minute, which is also, by the way, why the Purcell doctrine, which we talked about, right, would never have let a federal judge interfere with you know state election procedures just before the election, right?
12:55
SPEAKER_02: All this out the window in in Brazil.
12:59
SPEAKER_02: And uh again, I just want to emphasize what Catherine just told us.
13:03
SPEAKER_02: This is the equivalent of Trump winning in a landslide, right?
13:06
SPEAKER_02: After they go after him politically.
13:07
SPEAKER_02: Five members of the family basically get elected to all these things or proceed to this runoff.
13:12
SPEAKER_02: They absolutely wipe out the other side in the uh congressional elections.
13:16
SPEAKER_02: They have overwhelming 60, 70% majorities, and yet somehow they find 11 million new votes.
13:21
SPEAKER_02: Like I like, I don't, you know, maybe it was fair, maybe it was legitimate.
13:25
SPEAKER_02: I have no idea.
13:26
SPEAKER_02: But then what do they do after, by the way?
13:28
SPEAKER_02: Is of course they seize, they they seek to seize his passport and prosecute him immediately after the election.
13:34
SPEAKER_02: Uh he concedes the election.
13:35
SPEAKER_02: And now he's fled to the United States.
13:37
SPEAKER_02: And you've got, as Catherine said, the left just celebrating like this is how you beat author authoritarians and tyrants.
13:43
SPEAKER_02: Like you're literally the authoritarians.
13:45
SPEAKER_02: You are literally the authoritarians, right?
13:47
SPEAKER_02: And this will be a theme of mine anyway today.
13:50
SPEAKER_02: When you look, you know, if you can imagine a world in which literally everything is as fair and open, and you really get um people to vote based on their genuine interests and belief.
14:01
SPEAKER_02: And if the right would win in that election, if you give that world one possibility is that world.
14:07
SPEAKER_02: And the other possibility is here are 10 advantages that you Democrats could have that will nudge the election in your favor, that distorts what the will of the people actually is, but it'll ensure you you narrowly gain power.
14:18
SPEAKER_02: Which would you like?
14:19
SPEAKER_02: The actual genuine democratic version that actually reflects the will of the people, or you know, this version where you nudge people uh uh in in a way and distort the process so that you ultimately get power.
14:29
SPEAKER_02: They will choose the non-democratic version every time.
14:32
SPEAKER_02: They will choose power every time.
14:33
SPEAKER_02: Sorry, I'm so fired up about this.
14:35
SPEAKER_02: Josh, what do you think about Brazil?
14:36
SPEAKER_02: And then I know we want to go to your home state of Alaska.
14:41
SPEAKER_02: And Josh, you know, we're we're doing this, uh, he's at he's uh not in his home studio today.
14:46
SPEAKER_02: So he has to, he's not in his studio today, so he has to unmute himself because he's at his home studio.
14:50
SPEAKER_02: Go ahead, Josh.
14:51
SPEAKER_01: Right, so you might hear a bird chirping or a dog barking or something like that, because I'm at home right now.
14:56
SPEAKER_01: But um, you know, my heart's still in Alaska.
14:58
SPEAKER_01: I'm eager to go to Alaska in every sense, including conversationally, but but why are we talking about Brazil here?
15:04
SPEAKER_01: You know, why is this relevant to America?
15:06
SPEAKER_01: And and I want to just bring home a thought.
15:09
SPEAKER_01: And it's it's that we are often so America-centric and so sort of uninformed or indifferent in American politics and American law to what's going on in other parts of the world.
15:23
SPEAKER_01: But lots of things in American politics become much more clear when seen in a global context.
15:30
SPEAKER_01: So think about 2016, for example.
15:32
SPEAKER_01: Trump wins in the USA over Hillary Clinton.
15:35
SPEAKER_01: Big surprise.
15:35
SPEAKER_01: Like, oh my gosh, what's happening?
15:37
SPEAKER_01: You know, people are shocked.
15:38
SPEAKER_01: Guess what else was a surprise?
15:40
SPEAKER_01: Duterte won in the Philippines that same year.
15:43
SPEAKER_01: You know, Bolsonaro, the father Bolsonaro, who was also imprisoned by Lula de Silva.
15:48
SPEAKER_01: They were trying to imprison both father and son.
15:50
SPEAKER_01: Uh, Bolsonaro the father wins in Brazil.
15:54
SPEAKER_01: Brexit wins in Britain.
15:56
SPEAKER_01: Almost at the same time, Netanyahu wins in Israel, Modi wins in India, right?
16:01
SPEAKER_01: So there is a larger pattern happening here, and we can see our own politics much more clearly when we're informed about it.
16:08
SPEAKER_01: Basically, my take on it, I'm trying to write about this now, is there's a toxic combination throughout the world of elite control with progressive politics, an elite progressive consensus.
16:20
SPEAKER_01: And what happens is in country after country, you have elections, but the elections are largely ornamental or pretextual.
16:28
SPEAKER_01: Real power is being exercised in ways that are not subject to the election, or the election itself is manipulated.
16:35
SPEAKER_01: Uh, and you get um uh power being exercised by an elite class in a very left-wing direction, and naturally that leads to a conservative popular rebellion, which gets labeled conservative populism.
16:49
SPEAKER_01: So um that's the kind of phenomenon that drove Netanyahu to power, uh Modi to power, uh, Brexit in Britain, Trump to power.
17:00
SPEAKER_01: It's the same Marie Le Pen in France, who almost made it.
17:04
SPEAKER_01: And you also see the same problems everywhere.
17:07
SPEAKER_01: So, like mass immigration has emerged as a major problem throughout the Western world.
17:12
SPEAKER_01: And also the same weapons are used by the left against the people complaining about it.
17:17
SPEAKER_01: So here we say uh racist.
17:20
SPEAKER_01: The left says racist to kind of uh Catherine looks like she's hey Catherine, you okay there?
17:25
SPEAKER_02: I don't want to keep my We're all having all sorts of trouble today, but you know, in the spirit of one of our favorite podcasts, the Ruthless Podcast, we just go.
17:35
SPEAKER_02: We just go that out.
17:36
SPEAKER_02: We just go.
17:37
SPEAKER_00: I'm sorry, just like a casually choking.
17:39
SPEAKER_00: Keep going.
17:41
SPEAKER_01: Well, the ruthless guys are awesome.
17:43
SPEAKER_01: Um so the same problems everywhere, mass immigration and the same weapons deployed by the left.
17:49
SPEAKER_01: What do they call people who complain about it in the United States racist?
17:53
SPEAKER_01: They lose, use the instruments made available in our culture for moral condemnation to exercise power, to control the discourse.
18:00
SPEAKER_01: What do they say in Europe?
18:01
SPEAKER_01: They say Islamophobia or nationalism, right?
18:04
SPEAKER_01: But it's the same tool.
18:05
SPEAKER_01: Let's see if we can kind of destroy your moral reputation if you bring up a completely uh particular complaint about the situation.
18:12
SPEAKER_02: So big picture, the left And of course, Josh, they also try to arrest them.
18:16
SPEAKER_02: Didn't they try to arrest Marin Le Pen?
18:18
SPEAKER_02: Um for some like ridiculously clear.
18:20
SPEAKER_01: Well, and I was about to get into that.
18:22
SPEAKER_01: If I was about to get into that.
18:23
SPEAKER_01: So let me give some examples of what's happening with Bolsonaro happening elsewhere.
18:27
SPEAKER_01: So, big picture, the left has always been an international movement.
18:31
SPEAKER_01: It was an international movement in 1789, right?
18:35
SPEAKER_01: When the French Revolution took place and gave birth to the ideological phenomenon we know as the left.
18:41
SPEAKER_01: It was certainly an uh uh international institution when Trump was conquering, excuse me, Trump, that's kind of a uh uh Furgyan slip right there, when Napoleon was conquering Europe and uh it was an international movement explicitly in 1848 when the communists were trying to spread their ideology everywhere.
19:01
SPEAKER_01: So the left has always been an international movement.
19:04
SPEAKER_01: In a sense, the right has become international too, because popular self-government married to anti-leftism is a worldwide phenomenon.
19:13
SPEAKER_01: It's a response to structures of power that ensure elite control in the service of progressive ends.
19:19
SPEAKER_01: So Brazil is a particularly vivid illustration of this, a particularly vivid case in point.
19:26
SPEAKER_01: You have a popular elected leader on the conservative side, namely Bolsonaro the father.
19:32
SPEAKER_01: Opponents use left-wing courts to imprison him.
19:36
SPEAKER_01: The courts is just critical because courts are traditionally the primary instrument of left-wing anti-elected power.
19:44
SPEAKER_01: That's the worldwide pattern.
19:46
SPEAKER_01: Um then you have Bolsonaro the son uh also being threatened by the same courts in Brazil.
19:56
SPEAKER_01: And what are they trying to do?
19:57
SPEAKER_01: Take him off the ballot, right?
19:59
SPEAKER_01: And ultimately imprison him.
20:01
SPEAKER_01: Okay, and that's what they did to Bolsonaro the father.
20:03
SPEAKER_01: They took him off the ballot by imprisoning him.
20:05
SPEAKER_01: Does that ring any bells?
20:08
SPEAKER_01: How about Marie Le Pen in France?
20:10
SPEAKER_01: How about the Section 3 argument against Trump?
20:14
SPEAKER_01: How about the plethora of criminal and civil cases brought against Trump by a panoply, a phalanx of um uh leftist uh uh DAs and other officials who are trying to get him off the ballot any way they can?
20:31
SPEAKER_01: Or how about Israel?
20:32
SPEAKER_01: The case against Netanyahu.
20:34
SPEAKER_01: You know, it may surprise people to learn that Prime Minister of Israel, Netanyahu, over the last three years of wartime, has been in court almost every day, ordered to personally appear, not just appear through his lawyers, personally appear in court almost every day by courts that are trying to destroy him and prosecutors that are going after him uh uh on criminal charges, among other things.
20:58
SPEAKER_01: And as I don't fully understand those charges, they're my impression is they are um just as unreasonable as the charges against Trump.
21:06
SPEAKER_01: So here's what we're seeing: courts everywhere, everywhere except maybe the United States sometimes, being an expression of elite power in ways that are not democratically accountable, and trying to prosecute or take off the ballot at a minimum the conservative uh people who are running for public office, and we just saw it again in Brazil.
21:29
SPEAKER_01: That's why Elon's point is so important.
21:32
SPEAKER_01: And I just want to mention one more thing, because I'm fired up about this too.
21:35
SPEAKER_01: I just want to mention one more thing about this.
21:38
SPEAKER_01: The amazing thing about it is the big lie phenomenon, right?
21:41
SPEAKER_01: Big lie is where you don't just deny an allegation, you assert the opposite.
21:47
SPEAKER_01: You accuse your opponent of whatever is true of you.
21:50
SPEAKER_01: So we see these profoundly gaslighting is the modern term for it.
21:55
SPEAKER_01: Um, Freud called it projective.
22:00
SPEAKER_01: Projection, right?
22:01
SPEAKER_01: And he said it was a psychological phenomenon.
22:04
SPEAKER_01: I think there's a lot about Freud that is empirically unverified and mistaken.
22:09
SPEAKER_01: But I think projection is a real phenomenon.
22:11
SPEAKER_01: At some level, people know what is true of themselves.
22:15
SPEAKER_01: And because they can't live with the cognitive dissonance of what's true of themselves, the bad things that are true of themselves, they immediately accuse their opponent of it.
22:23
SPEAKER_01: And Freud saw this in like personal relationships, right?
22:26
SPEAKER_01: It's true in politics too.
22:28
SPEAKER_01: There is a giant game of gaslighting or the big lie or simply psychological projection where progressives say, we're for democracy.
22:37
SPEAKER_01: We're for defeating the anti-democratic force.
22:40
SPEAKER_01: They say that in Israel while they try to what?
22:43
SPEAKER_01: Prosecute Netanyahu, who won an election, right?
22:47
SPEAKER_02: Or for equality, but not actually.
22:50
SPEAKER_01: Yeah, well, I just want to stay focused on the democracy thing.
22:53
SPEAKER_01: Because the democracy thing is fundamentally about who wins elections.
22:56
SPEAKER_01: What do they try to do?
22:57
SPEAKER_01: Jail political opponents in Brazil.
23:00
SPEAKER_01: Take people off the ballots or jail them in Israel.
23:02
SPEAKER_01: Take people off the ballot or jail them in the United States with Trump, right?
23:06
SPEAKER_01: So these are the least democratic things you can possibly do.
23:10
SPEAKER_01: And what do we have?
23:11
SPEAKER_01: We have signs on the street saying pro-democracy, no kings, all that kind of stuff.
23:15
SPEAKER_01: It's a giant game of the big lie gaslighting projection.
23:20
SPEAKER_02: Josh, that is based.
23:22
SPEAKER_02: Catherine, should we however I got I love having you on this podcast.
23:26
SPEAKER_02: I'm so glad we're all in this together.
23:28
SPEAKER_02: That was such fire, fire to our listeners.
23:31
SPEAKER_02: That was fire.
23:32
SPEAKER_02: Leave us a rating on Apple and Spotify just because of what Josh has just said in that monologue.
23:36
SPEAKER_02: That was just absolute fire.
23:38
SPEAKER_02: Okay, Catherine, any concluding thoughts there?
23:40
SPEAKER_02: And or should we move on to Alaska?
23:42
SPEAKER_00: Let's move on to Alaska, but I do find it interesting that again, you would talk about these election shenanigans happening in other countries.
23:48
SPEAKER_00: And okay, maybe we don't rise to the level of Brazil here in America.
23:52
SPEAKER_00: But these are some serious shenanigans.
23:55
SPEAKER_00: I mean, in Alaska, Senator Dan S.
23:58
SPEAKER_00: Sullivan is running for re-election against Democrat Mary Peltola.
24:03
SPEAKER_00: And the Democrats, conveniently, have found another man named Dan Sullivan to put on the ballot and try and confuse voters, it seems, completely intentionally.
24:14
SPEAKER_00: So, I mean, we're not here.
24:16
SPEAKER_00: I mean, we can't really be celebrating that much in the US, I think, because we clearly have problems of our own.
24:21
SPEAKER_00: This is insane to me.
24:22
SPEAKER_01: Well, before we get there, before you turn to the Alaska situation, uh, and this applies to what we're saying now and to the rest of the episode, I just want to be clear about a few things on behalf of all three of us.
24:33
SPEAKER_01: Uh, and this may be obvious to everyone listening.
24:36
SPEAKER_01: It should be obvious, but just indulge me as a former, you know, acting general counsel trying to be cautious, right?
24:42
SPEAKER_01: We three hosts are right now speaking in our personal capacities.
24:46
SPEAKER_01: We are not endorsing or opposing any candidate for office or any political party.
24:51
SPEAKER_01: Our purpose is to analyze legal issues and discuss larger questions of politics, culture, and election integrity, but not to support or oppose any candidate or party.
25:00
SPEAKER_01: And nothing here should be understood as supporting or opposing any candidate or party.
25:05
SPEAKER_01: Why do I say all that?
25:06
SPEAKER_01: Because there are legal rules that govern nonprofits.
25:08
SPEAKER_01: We are not actually a nonprofit here at Rationally Base, but we do have some support from nonprofits and we're associated with them, like uh I'm a university professor as Izzy Lan.
25:18
SPEAKER_01: So it's just sort of smart to say that at the outset, and we mean it.
25:23
SPEAKER_02: Yeah, so you look like you're being held hostage over there.
25:26
SPEAKER_02: Are you okay?
25:27
SPEAKER_02: Do you need do you need help?
25:28
SPEAKER_02: Do you need us to send aid and support?
25:30
SPEAKER_02: Okay.
25:30
SPEAKER_02: All right, Catherine, continue.
25:32
SPEAKER_01: I was gonna say every once in a while, the part of me that was uh, you know, um a lawyer for the Trump administration kicks in, and I stop being a philosopher, and I'm like, ooh, that could be dangerous.
25:44
SPEAKER_01: Let's watch that.
25:45
SPEAKER_00: Lawyers always know how to make things fun, you know?
25:47
SPEAKER_00: All right, back to Alaska.
25:49
SPEAKER_00: Uh, Republicans have been calling him decoy Dan, which I love because he literally is a decoy Dan Sullivan.
25:56
SPEAKER_00: His actual name is Daniel J.
25:58
SPEAKER_00: Sullivan.
25:59
SPEAKER_00: And it's very obvious as of now that he's running to confuse people to vote for the actual who are trying to vote for the actual Republican senator who's the incumbent.
26:10
SPEAKER_00: And now there's an FEC complaint that is alleging that decoy Dan's campaign got off the ground in part with help from a Democrat consultant who works for an organization, I believe it's an independent expenditure, running attack ads on the real Dan Sullivan.
26:25
SPEAKER_00: So according to the FEC complaint, Decoy Dan initially filed using the incumbent's middle initial S instead of his own J.
26:32
SPEAKER_00: Suspicious.
26:33
SPEAKER_00: Uh Decoy Dan is also using campaign graphics that allegedly look extremely similar to the real Dan's.
26:39
SPEAKER_00: Like if you put up their website side by side, it's it's eerie.
26:43
SPEAKER_00: Like there's obviously something going on here.
26:46
SPEAKER_00: And apparently the people who are constantly lecturing us about our democracy and preserving democracy have discovered a cool new campaign strategy, which is make the ballot a guessing game.
26:57
SPEAKER_00: Make it a little bit harder to figure out which Dan Sullivan you're voting for.
27:01
SPEAKER_02: Josh, before you chime in there, so one other thing.
27:03
SPEAKER_02: Josh, one other thing about I just the New York Times, okay, just dropped an article just now, okay, as we are recording this.
27:13
SPEAKER_02: And um, so this will come out tomorrow, Thursday, but it's Wednesday.
27:17
SPEAKER_02: And uh this article, uh, which I had open, and now I'm just give me a quick second.
27:23
SPEAKER_00: Well, they basically claim to have reviewed the New York Times, claims to have reviewed lots of messages, texts, emails, things like that that indicate that um the campaign for Peltola and Alaska the Democrat actually went looking.
27:37
SPEAKER_00: They sent a staffer to find everyone in Alaska named Dan Sullivan, and they went hunting down the right Dan Sullivan who would be willing to run and pull votes from the real Dan Sullivan over to this fake Dan Sullivan.
27:51
SPEAKER_00: They ended up finding him in this teacher that lives in a really rural part of Alaska, but they interviewed a bunch of different Dan Sullivan.
27:57
SPEAKER_00: So it was fine the right guy.
27:58
SPEAKER_02: It wasn't just that consultant, right?
28:00
SPEAKER_02: It was so the article is called Inside Democrats Secret Effort to Stack Alaska's ballot.
28:05
SPEAKER_02: This is so unsavory.
28:06
SPEAKER_02: Even the New York Times could not ignore this.
28:08
SPEAKER_02: So it wasn't just these campaign operatives or these Democrat operatives.
28:11
SPEAKER_02: It was actually his leading opponent who went out of the way, sending their staff to look for under registered voters who are named Dan Sullivan.
28:18
SPEAKER_02: One other, and so this is active coordination to again undermine our democracy, as Catherine says.
28:23
SPEAKER_02: One other thing, this Dan Sullivan that's on the ballot, decoy Dan, he's a Democrat.
28:28
SPEAKER_02: He's voted Democrat in every single election, and he registered as a Republican for this purpose, as a Republican candidate, right?
28:35
SPEAKER_02: So like Josh.
28:36
SPEAKER_02: And don't forget, changed his middle name.
28:38
SPEAKER_02: Yeah.
28:39
SPEAKER_02: Josh, your state.
28:41
SPEAKER_02: What's what what's what's going on going on?
28:43
SPEAKER_02: What's your take?
28:45
SPEAKER_01: Okay, I need to take a deep breath here because I love Alaska.
28:49
SPEAKER_01: You know, I I there's no law school in Alaska.
28:51
SPEAKER_01: I'm a law school professor, so I couldn't live there.
28:53
SPEAKER_01: I actually thought about trying to found a law school in Alaska at some point in my career, but uh haven't done it.
28:59
SPEAKER_01: Um haven't done it yet.
29:00
SPEAKER_01: Uh and so I can't live there if I'm gonna be a law professor, but my heart is still in Alaska.
29:06
SPEAKER_01: And I've actually known Senator Dan Sullivan since I was in high school.
29:10
SPEAKER_01: And uh I just can't believe this is happening in my childhood home, my state, uh, that I still love so much.
29:18
SPEAKER_01: And also I love my country.
29:19
SPEAKER_01: I love the United States.
29:21
SPEAKER_01: And um this just shouldn't be happening in our country.
29:25
SPEAKER_01: I cannot believe this is happening in our country.
29:27
SPEAKER_01: So let's be clear about what's going on here, folks.
29:31
SPEAKER_01: Dan Sullivan, decoy Dan, as he's called, is a total fake.
29:35
SPEAKER_01: The dude has no business in politics.
29:37
SPEAKER_01: This is not a serious candidacy.
29:39
SPEAKER_01: No one could say with a straight face that this is someone who's seriously trying to become a senator who happens to also be named Dan Sullivan.
29:46
SPEAKER_01: That's silly, it's outrageous, it's um uh it's it's like looking at a clown at a children's birthday party and saying, well, maybe that's just how he wears his makeup all the time.
29:57
SPEAKER_01: That's just like that's just how he looks.
29:59
SPEAKER_01: It's like ridiculous, of course not.
30:01
SPEAKER_01: We're we're sensible people here, right?
30:03
SPEAKER_01: So this is a guy who went by Daniel, changed it to Dan, like the senator.
30:09
SPEAKER_01: Was Daniel J.
30:10
SPEAKER_01: Sullivan changed his middle initial to S, was a Democrat who changed his registration to Republican, and who uh who copied all of the real Dan Sullivan, Senator Dan Sullivan's uh material.
30:25
SPEAKER_01: I mean, this is just like there's no plausible argument that this is not just a complete fraud.
30:30
SPEAKER_01: And it turns out it was engineered by the opposition candidate to confuse voters to steal the election.
30:38
SPEAKER_01: Okay, so we were talking about global parallels before.
30:41
SPEAKER_01: Here's one that I find very disturbing because it's so apt.
30:46
SPEAKER_01: Uh, in 2021, in St.
30:48
SPEAKER_01: Petersburg, Russia, there was an opposition politician to Putin.
30:53
SPEAKER_01: Putin is a dictator, right?
30:55
SPEAKER_01: We can all agree about that.
30:56
SPEAKER_01: Putin is a dictator, Russia rigs its elections.
30:59
SPEAKER_01: There's an opposition candidate to Putin named Boris Vizhnevsky.
31:04
SPEAKER_01: Vyznevsky.
31:06
SPEAKER_01: And he was garnering some support.
31:08
SPEAKER_01: So guess what the Putin people did?
31:10
SPEAKER_01: They found two other look-alikes to Boris Vyznevsky.
31:14
SPEAKER_01: They had him officially change, those two people changed their names to Boris Vyznevsky, and the two people changed their clothes and their beards and their hair to look like Boris Vyznky so that voters couldn't tell who was who and had no idea who they were voting for.
31:29
SPEAKER_01: Okay, that's how Putin does it in corrupt Russia and Dictator Russia.
31:34
SPEAKER_01: It's a tactic unworthy of the United States, but it's exactly what we're seeing in the state I love and the country I love.
31:42
SPEAKER_01: It's disgraceful, it's disgusting, it's kind of funny.
31:46
SPEAKER_01: I don't deny that it's kind of funny, but it's funny the way terrible things are funny, right?
31:51
SPEAKER_01: Like uh uh it's like this is something um that is uh a cheap, kind of vile, immoral, unjust attempt to undermine something sacred to America, which is our elections, our democracy.
32:06
SPEAKER_01: And uh just the fact that it's like it's it's you know, I guess it's kind of funny when Putin has people who are look-alikes change their name uh and their appearance to mock or imitate to become faux candidates to confuse voters, doesn't mean it's good, right?
32:26
SPEAKER_01: So, and it's just outrageous that it's coming from the people who say we're defending democracy, from the anti-democratic Republican Party, the anti-democratic Trump forces.
32:37
SPEAKER_01: Again, if it's sincere, it's an exercise in the most profound Freudian projection.
32:43
SPEAKER_01: And if it's insincere, it's gaslighting or the big lie.
32:46
SPEAKER_01: Uh, deliberately deceiving voters about the identity of the person they're trying to vote for is an actual threat to democracy.
32:56
SPEAKER_00: And just to, you know, be clear, uh Decoy Dan denies being a democratic plant.
33:01
SPEAKER_00: He says running to the idea.
33:04
SPEAKER_02: Save it for court, Buster.
33:05
SPEAKER_02: Like that's what I would tell him.
33:07
SPEAKER_02: Like, anyway, go ahead.
33:08
SPEAKER_00: Alaska election officials actually tried to remove him, but the courts restored him to the ballot.
33:15
SPEAKER_00: But okay, saying like my name is really Dan Sullivan doesn't explain the fact that he did originally file using the other guy's middle initial before he had changed his name to now match the middle initial of the real guy.
33:29
SPEAKER_00: So that's still weird.
33:30
SPEAKER_00: And I hear a lot of people on the left saying, well, I don't think this matters, like, not that many people will be tricked by this because for whatever reason, you know, I think it says incumbent next to um the real Dan Sullivan's name.
33:42
SPEAKER_00: But in their primary, okay, decoy Dan pulled in 2.5% of the vote.
33:49
SPEAKER_00: And Teltola is currently running ahead of the real Dan Sullivan and the RCP average by only 1.2%.
33:57
SPEAKER_00: Okay.
33:58
SPEAKER_00: So even if he pulls in 2.5% of the vote, this is a super close race in Alaska.
34:04
SPEAKER_00: It could make all the difference.
34:05
SPEAKER_00: So it does matter, even if he's only trick only tricking a couple people, which somehow they think makes it better.
34:12
SPEAKER_00: Uh apparently, apparently, Russian election interference, as you say, Josh, is less troubling when we just do it here in America ourselves.
34:21
SPEAKER_00: But let's get into the law.
34:22
SPEAKER_00: Elon, is this fraud?
34:24
SPEAKER_00: There's gotta be something wrong here, right?
34:26
SPEAKER_00: What does the law say?
34:28
SPEAKER_02: By the way, on the point of like the small margin, like that's like the margin in Brazil, you know, 2% or whatever that was, right?
34:34
SPEAKER_02: It's like saying, you know, well, you know, don't speed.
34:37
SPEAKER_02: It only saves you a couple of minutes.
34:39
SPEAKER_02: Well, yeah, like you need a couple of minutes of sometimes.
34:41
SPEAKER_02: You know, that's between being late and not being late.
34:44
SPEAKER_02: Don't speed, it's not worth it.
34:45
SPEAKER_02: Just be late, okay?
34:46
SPEAKER_02: But that's the point.
34:47
SPEAKER_02: Like, that's the margins we're talking about for these things.
34:49
SPEAKER_02: So it's ridiculous.
34:50
SPEAKER_02: Now, I want to tie this back to in our previous episode on civic terrorism.
34:54
SPEAKER_02: And as Josh said, and on previous episodes before that, on Tit for Tat, there must be legal consequences for these shenanigans.
35:00
SPEAKER_02: They get, you know, they if they win and decoy Dan siphons off 1% and this Mary Lady, whatever, wins, like that's huge.
35:07
SPEAKER_02: As Josh said, it's like conquering new territory, okay?
35:10
SPEAKER_02: In war.
35:11
SPEAKER_02: And that's permanent.
35:12
SPEAKER_02: And if uh they don't, you know, nothing happened.
35:15
SPEAKER_02: If they don't, decoy Dan doesn't, you know, siphon off enough votes and they lose, okay, great, but they haven't lost anything, nothing happens to them, right?
35:22
SPEAKER_02: This is clear, but this is one of those examples, okay.
35:24
SPEAKER_02: I'm sorry, again, I'm fired up in this episode.
35:26
SPEAKER_02: I gave you those two possible worlds, right?
35:29
SPEAKER_02: Where everybody is is genuinely uh gets to vote, their thoughts, there are no distortions to the to the vote, to the electoral marketplace.
35:36
SPEAKER_02: And if the Republicans would win in a fair and open election like that, uh in an alternative universe, the Democrats would prefer doing all of these things that actually distort what the will of the people actually is if it means that they would get power.
35:49
SPEAKER_02: Here is one example of that, right?
35:50
SPEAKER_02: They're willing to distort, to dupe, to deceive a small percentage of voters just because they don't actually believe in democracy.
35:58
SPEAKER_02: What they care about is power.
35:59
SPEAKER_02: Okay, so there has to be consequences for interfering in this way, okay?
36:04
SPEAKER_02: And let me just highlight Mr.
36:06
SPEAKER_02: Dan Sullivan.
36:07
SPEAKER_02: I'm not suggesting you should get a lawyer, but there are possible I don't know what the Democrats told you, okay, when they signed you up for this you know duty, okay?
36:17
SPEAKER_02: The Federal Election Campaign Act makes it a crime.
36:21
SPEAKER_02: Makes it a crime for a candidate or his agents to quote fraudulently misrepresent himself as speaking or writing or otherwise acting for or on behalf of any other candidate on a matter which is damaging to such another candidate.
36:35
SPEAKER_02: 52 USC section 30124.
36:40
SPEAKER_02: So if someone could prove that fake Dan, Dekoy Dan, is deliberately impersonating Senator Sullivan, then that seems to be a breach of the statute.
36:49
SPEAKER_02: And to be honest, I don't think it would be that hard to prove.
36:52
SPEAKER_02: Okay, and so this will take somebody with the this is a family-friendly podcast, the guts, the gumption, sorry, to go ahead and actually prosecute this and have you know there should be consequences for this, right?
37:04
SPEAKER_02: You want to prosecute Trump for you know, um undermining confidence in the election and chat like, okay, what is this doing?
37:11
SPEAKER_02: What is this doing?
37:12
SPEAKER_02: Literally undermining confidence in the electoral process.
37:15
SPEAKER_02: You want to go after Trump for having you know paid hush money uh to a porn star after the election, by the way?
37:23
SPEAKER_02: So that's all super weird.
37:24
SPEAKER_02: Okay, well, someone should prosecute this again.
37:27
SPEAKER_02: There must be consequences.
37:28
SPEAKER_02: Josh, what do you think?
37:30
SPEAKER_01: I mean, investigate it.
37:32
SPEAKER_01: Investigate this.
37:33
SPEAKER_01: And and federal officials have the courage to investigate this and see if charges are uh warranted on the law.
37:44
SPEAKER_01: Uh, you know, who came up with this candidacy?
37:46
SPEAKER_01: Who prepared the documents?
37:47
SPEAKER_01: Why did the wrong middle initial appear?
37:50
SPEAKER_01: Who designed the campaign materials?
37:52
SPEAKER_01: These are answerable questions.
37:53
SPEAKER_01: You get the emails, you get the messages through legal process, and you find out what happened.
37:58
SPEAKER_01: The New York Times story that apparently dropped today uh seems to be an important element where you know that there were campaign officials uh from the opposition, the real opposition candidate, uh involved.
38:10
SPEAKER_01: There is, by the way, not just not just the individual in question, the fake Dan Sullivan, the decoy Dan, um who might be guilty of a crime under this statute, uh there's also criminal conspiracy.
38:24
SPEAKER_01: So a little background about the law.
38:25
SPEAKER_01: A criminal conspiracy is an agreement to commit a crime.
38:31
SPEAKER_01: The agreement to commit a crime is itself a crime.
38:35
SPEAKER_01: So if, like, if I said in all sincerity to Catherine right now, hey, let's take over the drug business in Minnesota, um, and she said, I'm in, let's do it, then we have committed a crime even before we start dealing drugs, of conspiracy to deal drugs.
38:54
SPEAKER_01: This this ploy to that apparently, I mean, it undoubtedly involved a lot of people and apparently involved some people from the campaign, sounds to me like a criminal conspiracy to commit fraud, in this case, a criminal conspiracy to commit election fraud.
39:10
SPEAKER_01: Now, I don't want to prejudge this.
39:11
SPEAKER_01: I don't know all the facts, and I haven't, on this particular issue in Alaska law or in federal law, investigated the precise legal implications of the facts.
39:21
SPEAKER_01: Uh, but I think, as I said in our last episode, the right has a terrible habit of discovering something outrageous that's taken place, something really wrongful, complaining about it for a few days, and then just moving on.
39:37
SPEAKER_01: Right?
39:37
SPEAKER_01: So what are we?
39:38
SPEAKER_01: We're the party of whining.
39:39
SPEAKER_01: We're the party of bloviating, right?
39:42
SPEAKER_01: That is not if the reason that's not acceptable, there is a it's it's not acceptable, but the reason it's not acceptable is quite precise.
39:51
SPEAKER_01: If we are the party of whining, complaining, and bloviating without action, we will inevitably lose.
39:57
SPEAKER_01: Because what happens?
39:59
SPEAKER_01: They try to steal an election with a fake candidate.
40:02
SPEAKER_01: We whine and complain.
40:03
SPEAKER_01: Maybe it works, maybe it doesn't.
40:05
SPEAKER_01: If it works, they have a profound victory.
40:09
SPEAKER_01: Maybe they take the whole Senate for years to come.
40:12
SPEAKER_01: If it doesn't work, there's no consequences.
40:15
SPEAKER_01: So they might as well try again the next time, either the same ploy or some similar ploy, because there are no consequences to losing.
40:21
SPEAKER_01: So we just can't have a society like that.
40:25
SPEAKER_01: There have to be consequences.
40:26
SPEAKER_01: Now, in saying all this, I want to be sensitive to something.
40:29
SPEAKER_01: We just commented on how in Brazil and Israel and the United States itself, uh, there were legal operations designed to get people off the ballot uh uh by progressives, by the left, that we thought were so offensive to democracy.
40:48
SPEAKER_01: Are we doing the same thing?
40:49
SPEAKER_01: Are we being hypocrites by saying, you know, use the operation of law to deal with the fake Dan Sullivan?
40:55
SPEAKER_01: I say no, we are not doing the same thing.
40:58
SPEAKER_01: I am sensitive to the criticism.
40:59
SPEAKER_01: I don't want to be a hypocrite, but the difference is that in those cases, they're taking people who are have huge majority support, may well win.
41:09
SPEAKER_01: Bolsonaro had won, Trump had won in 2016, Netanyahu won.
41:14
SPEAKER_01: Marie Le Pen looked likely to win.
41:16
SPEAKER_01: She had a real shot.
41:17
SPEAKER_01: They're trying to take people with genuine support who are genuinely running off the ballot.
41:22
SPEAKER_01: What we're talking about is someone who is obviously a decoy, transparently a decoy, just meant to confuse voters.
41:28
SPEAKER_01: That does that does not mean we're doing the same thing as the left.
41:32
SPEAKER_02: Josh, um, can we coin a term since that was we do on this podcast, you know, civic terrorism and so on, uh, for these whining Republicans?
41:39
SPEAKER_02: Can we call them whinos?
41:40
SPEAKER_02: Or is does that work?
41:43
SPEAKER_00: Whinos! That's funny.
41:44
SPEAKER_00: That's that's kind of a wine mom thing, though.
41:47
SPEAKER_00: Like that is kind of a thing already.
41:48
SPEAKER_02: Exactly.
41:49
SPEAKER_02: No, it's like they are what they are whiners, they are rhinos, and you commit combine it together, they're whinos.
41:56
SPEAKER_02: So anytime someone Republican says, Oh, this is so terrible, and then they don't do anything, we say you're a whino.
42:02
SPEAKER_02: Okay.
42:02
SPEAKER_02: I like it.
42:03
SPEAKER_02: Can we do it?
42:03
SPEAKER_02: Thank you.
42:04
SPEAKER_02: I took you a second, both of you deadpanned a little bit, and I was just uh a little worried that this uh was gonna fall into it.
42:09
SPEAKER_01: I'm in, I'm in.
42:10
SPEAKER_01: Okay, I I I have a real problem with winos.
42:14
SPEAKER_01: Why no, that sounds ridiculous, though, because it sounds like I'm talking about actual alcoholics.
42:18
SPEAKER_01: Yeah, I have a real problem with whino Republicans, and the reason why is not just that I find their lack of courage distasteful.
42:27
SPEAKER_01: Um, I do, but the reason why is the game theory I've been trying to highlight in this episode and even more in the prior episode that we did on civic terrorism.
42:38
SPEAKER_01: We just, if if you if you whine and complain and don't act and don't create consequences, you lose slowly, but you lose inevitably for reasons that we know from the very idea of tit for tat in game theory.
42:53
SPEAKER_02: Okay, so we only have about 20 more minutes uh in this episode, maybe 25, we'll see.
42:59
SPEAKER_02: So there are two other things we want to talk about with Alaska, two other possibilities.
43:03
SPEAKER_02: One is the uh complaint was filed by Americans for Public Trust with the Federal Election Uh Commission.
43:08
SPEAKER_02: And so maybe there's some campaign finance issues, and then the DOJ filed for an injunction to stop the certification of the Alaska election if decoy Dan siphons enough votes, and this has been criticized.
43:19
SPEAKER_02: So let's talk about both of those, Catherine.
43:20
SPEAKER_02: Do you want to set up the FEC possibility for us?
43:24
SPEAKER_00: Yeah, basically, um they the Americans for Public Trust they filed with the FEC and they did a lot of digging here.
43:29
SPEAKER_00: They put together a very detailed complaint tracing the personnel connections, campaign filings, and advertising expenditures behind the whole operation.
43:37
SPEAKER_00: And basically, they allege that a consultant named Amber Lee helped launch Decoy Dan's campaign.
43:42
SPEAKER_00: His campaign reported owing her firm$4,380 for website services and campaign and digital consulting.
43:51
SPEAKER_00: But at the same time, she was director and secretary of the 907 initiative.
43:55
SPEAKER_00: Uh, funny enough, the 907 initiative has spent half a million dollars running.
44:00
SPEAKER_00: Attack ads against the real senator Dan Sullivan.
44:03
SPEAKER_00: So Americans for Public Trust is basically alleging that the outside group and decoy Dan coordinated, which would violate campaign finance laws because as an independent expenditure, you can't uh coordinate with any sort of campaigns.
44:15
SPEAKER_02: Yeah, I just wanted to emphasize that's the that would be the claim, right?
44:19
SPEAKER_02: So I already suggested a way in which this decoy Dan might be criminally liable.
44:23
SPEAKER_02: Another way, if you are a genuine candidate, which how again did the Alaska Supreme Court actually come up with that, but whatever.
44:29
SPEAKER_02: If you are a genuine candidate and you coordinated with this outside group, that counts toward campaign finance limits, and you guys are in trouble.
44:37
SPEAKER_02: You guys are in trouble if there was that coordination, which obviously it seems that there was, I don't want to prejudge it, but that is another ground and really credit to these guys um at the uh uh that really prepared uh did all this digging, the Americans Republic Trust, and read this this petition complaint that they filed with the Federal Election Commission.
44:53
SPEAKER_02: Good for them for digging into this.
44:55
SPEAKER_02: They are not Why No Republicans.
44:57
SPEAKER_02: They are I don't even know if they're Republicans, but I'm gonna assume they are real, they're patriots.
45:02
SPEAKER_02: That's who those are.
45:03
SPEAKER_02: Josh, what do you think about all that?
45:06
SPEAKER_02: Or to be honest, should we just move on to the DOJ?
45:09
SPEAKER_02: What do you guys think?
45:10
SPEAKER_01: I I honestly I think I've said what I really want to say about Alaska and uh um uh let me bring up the DOJ.
45:19
SPEAKER_00: Yeah, okay, go ahead.
45:20
SPEAKER_02: No, no, Catherine, bring us home then with the DOJ thing because I'm gonna do that.
45:29
SPEAKER_00: To delay certification if Senator Sullivan loses, and would have won if the other Sullivan's votes had gone to him instead.
45:38
SPEAKER_00: So it's kind of like what I was talking about earlier.
45:40
SPEAKER_00: If the margin is 1.5% that Patola wins by, and the fake Dan Sullivan siphons off 2.5% of the votes say, then in that case, uh they think it should delay certification.
45:54
SPEAKER_00: So I kind of like your thoughts on that.
45:55
SPEAKER_00: But I also wanted to read a couple of the ways that the mainstream media is highlighting this case because I mean it's just a it's a good laugh.
46:04
SPEAKER_00: So CBS News ran a headline that says Trump admin sues to block Alaska Senate certification if Senator Dan Sullivan loses.
46:13
SPEAKER_00: Okay.
46:14
SPEAKER_00: Reuters ran the headline, US Justice Department sues to block possible Alaska election of Democrat to Senate.
46:21
SPEAKER_00: Okay.
46:22
SPEAKER_00: Roll call ran a headline, DOJ sues to prevent Sullivan loss in Alaska.
46:27
SPEAKER_00: Like, okay, it's an often-made point about the media.
46:31
SPEAKER_00: Uh but you'd think that the DOJ filed a complaint based on these headlines that says, like, Your Honor, we would just like the Republicans to win, please, you know?
46:39
SPEAKER_00: And it's not the situation at all.
46:41
SPEAKER_00: Like, this is a nuts story.
46:43
SPEAKER_00: This is a truly insane story about the Democrats trying to subvert democracy quite literally.
46:49
SPEAKER_00: And yet the media is like, the Republicans are at fault.
46:53
SPEAKER_00: So I'd love to hear from both of you on the one, the certification argument that the DOJ went with, and then also how this is being reported on in the media.
47:05
SPEAKER_02: Let me take this one first, and then Josh, maybe you could sort of bring us um home.
47:10
SPEAKER_02: Okay.
47:11
SPEAKER_02: I hate this hypocrisy from the left.
47:13
SPEAKER_02: The Democrats here are such hypocrites.
47:15
SPEAKER_02: What do they say about Trump, right?
47:17
SPEAKER_02: Oh, we have to hold him accountable through lawsuits, criminal and civil prosecutions.
47:23
SPEAKER_02: Well, Decoy Dan is literally undermining the confidence in our election.
47:27
SPEAKER_02: And they literally might siphon off to distort the actual result of the will of the people here, right?
47:32
SPEAKER_02: Why not hold him accountable?
47:34
SPEAKER_02: But no, now it's going after your political enemies, and now it's suing to distort the political process.
47:38
SPEAKER_02: No, no, that's what you guys are doing.
47:40
SPEAKER_02: We are trying, we, the DOJ, is trying to restore sort of the political process here.
47:45
SPEAKER_02: Look, the the legal theory that they used to file this lawsuit has been rightly ridiculed.
47:52
SPEAKER_02: It's not really good, uh it's not really a good theory.
47:54
SPEAKER_02: Okay.
47:55
SPEAKER_02: I think um uh our friends on the other podcast, uh, including David French, may have said that this is borderline rule 11 sanctionable.
48:03
SPEAKER_02: I don't know about that, okay?
48:05
SPEAKER_02: I really don't know about that.
48:06
SPEAKER_02: But they're relying on the National Voter Registration Act, and it's true, you know, like they want to enforce the stated purpose of the National Voter Registration Act, which is to ensure integrity of elections and so on.
48:16
SPEAKER_02: But the problem is the National Voter Registration Act is all about how you register people to vote.
48:19
SPEAKER_02: It's not about candidates on ballots, so they're kind of just taking this part of the statute from its purpose and enforcing it.
48:26
SPEAKER_02: But I've got a better theory, so so it's not a great theory, but I've got a better theory, and I want to run it by you guys and then Josh bring it home.
48:32
SPEAKER_02: There's a case called Enray Debs, okay, from 1895.
48:37
SPEAKER_02: I think Inray Debs is wrong.
48:39
SPEAKER_02: I criticize it in my book.
48:40
SPEAKER_02: Did you know I have a book, Catherine?
48:42
SPEAKER_02: It's behind me.
48:43
SPEAKER_02: So I criticize it in my book.
48:44
SPEAKER_02: But Inray Debs basically held that the United States government as a whole, without congressional authorization, has inherent authority to seek injunctions in federal courts to stop interferences with the mails and to stop interference with interstate commerce.
48:58
SPEAKER_02: This was the big Pullman strikes that were stopping the railroads from going, and Debs, the communist, violated the injunction and ended up being imprisoned for violating the court order and so on.
49:08
SPEAKER_02: But if there is inherent authority to, without congressional authorization, to sue for an injunction, to prevent a strike that interferes with the mail delivery, that interferes with the commerce of the United States, isn't there inherent authority to sue for an injunction to prevent interference with a federal election?
49:28
SPEAKER_01: Josh.
49:29
SPEAKER_01: Really interesting, uh, Elon, as a legal theory.
49:31
SPEAKER_01: I I um, you know, I think the DOJ suit in Alaska, um, relying as it does on the purpose provision of the statute, well, I think purpose provision should be taken much more seriously than they are.
49:45
SPEAKER_01: I mean, often in litigation, we just ignore them.
49:48
SPEAKER_01: I do think they can inform statutory interpretation in a variety of respects.
49:52
SPEAKER_01: Like you can interpret the commands of the statute in light of the purpose of the statute.
49:57
SPEAKER_01: Nonetheless, I think the DOJ lawsuit uh is rather strained.
50:02
SPEAKER_01: That said, I want to comment on our frankly rival podcast advisory opinions.
50:08
SPEAKER_01: Uh, you know, this is classic Why No Republican stuff.
50:12
SPEAKER_01: What do we see from them?
50:13
SPEAKER_01: Well Why no?
50:14
SPEAKER_01: Why no Republican?
50:16
SPEAKER_01: Why no Republican stuff.
50:17
SPEAKER_01: So they first say uh David French says uh that um these are shenanigans.
50:25
SPEAKER_01: This is gamesmanship, right?
50:28
SPEAKER_01: That's the strongest condemnation.
50:30
SPEAKER_01: He's not for this kind of thing in Alaska.
50:32
SPEAKER_01: But then he says, oh, but this lawsuit from the DOJ, this is Rule 11 sanctionable, or to cover his tracks, borderline Rule 11 sanctionable.
50:41
SPEAKER_01: And then Sarah Isger says this is borderline frivolous.
50:45
SPEAKER_01: Well, Republicans and the Republican DOJ should be able to bring a creative legal action which is not frivolous, which is by no means Rule 11 sanctionable, without fearing for their future careers because they're worried about being held in contempt of court or getting Rule 11 sanctions, which are sanctions on a lawyer, by the way, for bringing a wrongful lawsuit.
51:07
SPEAKER_01: Like we should have enough sort of sense of using the legal tools available to us creatively that we don't the structure of what they were saying on advisory opinions is to say, well, uh scold the left, scold the left.
51:24
SPEAKER_01: This was very bad.
51:25
SPEAKER_01: You shouldn't have fired the fake Dan Sullivan, but the actual attempt to do something about it via the DOJ, sanction those lawyers.
51:33
SPEAKER_01: Sanction those lawyers.
51:34
SPEAKER_01: They can't bring you can't do anything about this via the DOJ.
51:38
SPEAKER_01: Right?
51:38
SPEAKER_01: So that is classic positional stuff where you say, um, uh, I want to be the Republican who minimally displeases the people on the other side.
51:50
SPEAKER_01: I want to make sure they give me a pat on the head.
51:52
SPEAKER_01: So while I say school, school, school for this fake candidate, I also say that the Trump lawyers ought to be sanctioned.
51:58
SPEAKER_01: I think there are enough people trying to sanction Trump lawyers on frivolous grounds, frankly, that we don't need advisory opinions to join the crowd.
52:08
SPEAKER_00: What about, well, both of you just think about really quick the argument that this is like a forward-looking, I'm not sure how to say this exactly, but the DOJ wants something to happen only if Dan Sullivan loses.
52:20
SPEAKER_00: Yeah.
52:20
SPEAKER_01: Patrick, can I speak to that?
52:22
SPEAKER_01: Yeah, it's perfectly fine.
52:23
SPEAKER_01: We do that all the time in lawsuits, where you if a harm, like typically, if someone does something wrongful, but it doesn't result in harm to me, I have no lawsuit against them.
52:37
SPEAKER_01: So this is just totally conventional.
52:39
SPEAKER_01: It's not a heads I win, tails you lose.
52:42
SPEAKER_01: That's not true.
52:43
SPEAKER_00: But you get damages, right?
52:44
SPEAKER_00: I know that much.
52:45
SPEAKER_01: Yeah, exactly.
52:46
SPEAKER_01: You get damages if you are injured, not just because they did a wrong, right?
52:50
SPEAKER_01: So this is a totally conventional sort of like if this in fact has a negative effect on the election outcome, here's our legal claim against it.
53:00
SPEAKER_01: If it doesn't, there's no reason to waste the court's time uh challenging an election that that did not where the illegality did not affect the outcome.
53:09
SPEAKER_01: That's perfectly reasonable and legitimate.
53:12
SPEAKER_01: It's being portrayed in a way that makes it look unusual or atypical.
53:16
SPEAKER_01: It isn't really.
53:18
SPEAKER_02: And of course, if they filed after it was a done deal, well, it's a done deal.
53:21
SPEAKER_02: How do you undo something?
53:23
SPEAKER_02: This is a lot of the Trump lawsuits in 2020.
53:25
SPEAKER_02: They said, well, it's premature if you file early, and then you file after, oh, it's too late.
53:30
SPEAKER_02: Like, which is it?
53:31
SPEAKER_02: The DOJ was doing exactly the right thing.
53:33
SPEAKER_02: Okay, we do want to get to the illegal voting potential in California, in Los Angeles.
53:39
SPEAKER_02: There was a Ninth Circuit ruling yet two days ago.
53:42
SPEAKER_02: There might be one tomorrow because the district court, it's back in its court.
53:46
SPEAKER_02: I can explain all that, but Catherine, set it up for us.
53:49
SPEAKER_00: All right.
53:49
SPEAKER_00: So in California, a state that is notoriously the worst in the nation at counting ballots.
53:53
SPEAKER_00: Uh, two weeks ago, the federal government told California that according to its analysis, there are 20,000 non-citizens that received a vote by mail ballot, or I guess potential non-citizens.
54:05
SPEAKER_00: It gave California the names of these individuals and asked the state if they would help investigate the matter.
54:11
SPEAKER_00: Uh, they refused, of course.
54:13
SPEAKER_00: I guess I'm unsurprised.
54:14
SPEAKER_00: They would not confirm the citizenship status of the people on that list or work quickly with the federal government to do so.
54:20
SPEAKER_00: So the federal government went to court and asked for a temporary restraining order that would require California to separate out those ballots so that they wouldn't be counted until the citizenship status of those voters could be confirmed.
54:34
SPEAKER_00: On Sunday, the Ninth Circuit heard oral arguments in this case, and on Monday they ruled two to one rejecting the DOJ position.
54:44
SPEAKER_00: But Judge Patrick Boomate dissented, who I believe is actually a friend of the pod and had a good thing.
54:50
SPEAKER_02: I'd call him a friend of the pod.
54:52
SPEAKER_02: Um so let's just skip all the stuff about how the you know this is basically the emergency docket on the Ninth Circuit.
54:57
SPEAKER_02: Good for them for moving fast uh on this.
55:00
SPEAKER_02: Though in the two-to-one decision, they basically said too fast, give the district court a chance to rule.
55:05
SPEAKER_02: We don't have jurisdiction.
55:06
SPEAKER_02: Patrick Boumate dissented, saying, of course there's jurisdiction over this.
55:09
SPEAKER_02: It was constructively denied.
55:10
SPEAKER_02: Time is of the essence, right?
55:12
SPEAKER_02: But let me explain.
55:13
SPEAKER_02: So a lot of people are criticizing the merits of this.
55:15
SPEAKER_02: But Boumate makes a decent argument uh here.
55:18
SPEAKER_02: Uh, as an initial matter, California's you know, position is like, wait a minute, the National Voter Registration Act, which we talked about earlier today, and we've talked about on a prior episode, actually prohibits us on the federal forum, right, from from getting proof of citizenship, right?
55:32
SPEAKER_02: We've talked about this, and that's crazy.
55:34
SPEAKER_02: And that's crazy that the National Voter Registration Act did it.
55:37
SPEAKER_02: Watch that episode from a few months ago that we did.
55:39
SPEAKER_02: It was basically the Democrats trying to shore up uh Bill Clinton support uh and and likelihood.
55:44
SPEAKER_02: Again, nudging, nudging a little bit to make sure their candidate wins, right?
55:48
SPEAKER_02: This is sort of uh a theme here.
55:50
SPEAKER_02: And so it's it's that's a difficult ground here.
55:53
SPEAKER_02: So the DOJ's theory and Judge Buente's theory is that, well, federal law makes it a crime to vote uh if you're illegally here, if you're a non-citizen, actually, not even illegally, just if you're a non-citizen.
56:03
SPEAKER_02: And by the way, California law also does that.
56:05
SPEAKER_02: And so what he says is by not letting so basically by not giving the DOJ these uh ballots, which once they are cast, you're done.
56:15
SPEAKER_02: They're they're mixed in, they're intermingled.
56:17
SPEAKER_02: You are effectively uh uh interfering with their ability to enforce this law about non-uh citizens voting.
56:25
SPEAKER_02: It's called what's called you know obstacle uh preemption.
56:27
SPEAKER_02: Basically, you're creating an obstacle to the government's enforcement of this law prohibiting non-citizens voting.
56:34
SPEAKER_02: Now it's tricky because of course, if one of them votes, the government still could figure that out and go after them, right?
56:41
SPEAKER_02: And so the re and so I don't know how strong this argument is.
56:44
SPEAKER_02: It's a good argument, but I don't know if it gets us all the way there.
56:46
SPEAKER_02: So we'll see what it's like on the merits.
56:48
SPEAKER_02: I think what Judge Boomate and the DOJ are saying is that by not segregating the ballots, you're actually allowing the counting of illegal ballots.
56:55
SPEAKER_02: But that's a separate problem than the act of illegal voting, which is what the federal law actually prohibits.
57:01
SPEAKER_02: So again, creative argument, good for the DOJ for bringing this sort of creative lawsuit.
57:06
SPEAKER_02: I I think Judge Boomate made the best argument you can on its behalf.
57:10
SPEAKER_02: I don't know if it works for the reason I just uh said, but we'll see what happens uh with the district court uh when it's having a hearing today on it.
57:19
SPEAKER_02: And uh I'm sorry, it's expecting to rule today.
57:21
SPEAKER_02: It had it had a hearing earlier.
57:23
SPEAKER_02: Uh and so we'll know um maybe soon uh on the merits uh more on this.
57:29
SPEAKER_02: But um yeah, what do you think?
57:33
SPEAKER_01: Well, the federal government is claiming authority under a criminal statute that prevents non-citizens from voting.
57:39
SPEAKER_01: The state is effectively stopping this federal law from being enforced faithfully.
57:43
SPEAKER_01: So the federal government is saying that this federal law should preempt California's local election law.
57:47
SPEAKER_01: You basically have a state law that's frustrating any effort to enforce federal law.
57:53
SPEAKER_01: It's it's an but it's an interesting structure because the claim is that California is counting or potentially counting hundreds, even thousands of illegal ballots.
58:03
SPEAKER_01: And once those votes are counted, there's no putting the genie back in the bottle.
58:07
SPEAKER_01: They can't trace back to the ballot that went into the envelope and see if it came from someone who never had the right to vote in the first place.
58:14
SPEAKER_01: So there is a clear interest in getting this settled fast and by the highest court they can get to.
58:19
SPEAKER_01: Um I agree with Elon that there is a separateness to the criminal act of voting illegally and the separate act of counting those um illegal votes.
58:33
SPEAKER_01: And uh I'm not sure the authority to prosecute the crime extends to the authority to take the votes off the ballot.
58:41
SPEAKER_01: So, you know, creative and interesting, and I'm not sure how this will turn out.
58:46
SPEAKER_00: Well, I'd once again like to um like ring my bell or repeat my refrain that the lawyers make everything like so much more difficult than it needs to be.
58:54
SPEAKER_00: There are just possibly illegal aliens voting in our elections.
58:59
SPEAKER_00: That's wrong, obviously.
59:01
SPEAKER_00: And it was also revealed in one of these filings recently, like just how much work went into determining these questionable voters.
59:08
SPEAKER_00: Uh, they were checked through many different databases, and in fact, it sounds like each possible non-citizen voter was reviewed by hand and checked individually.
59:17
SPEAKER_00: It's a huge amount of effort that has gone into this research, and I think that adds validity to the government's claims.
59:24
SPEAKER_00: Uh you can just see how this is gonna go, right?
59:26
SPEAKER_00: Because California is going to take weeks to count up its votes, and then whatever happens, now people are going to have questions.
59:34
SPEAKER_00: Did illegal immigrants decide the outcome of the race?
59:38
SPEAKER_00: And the people would be very valid for asking that now that we know all this effort that has gone into determining these 20,000 people who are maybe not citizens, but California refuses to do anything to uh dispel voters of that very valid concern.
59:53
SPEAKER_02: Yeah, the last thing I'll say about this is I mean, nothing prevents California from doing this, right?
59:58
SPEAKER_02: As far as I understand, right?
59:59
SPEAKER_02: Even if DOJ can't force them to do it because the legal claim is somewhat weak.
1:00:03
SPEAKER_02: Like nothing's preventing California, I think, from on its own initiative saying, you know what, that is a problem.
1:00:09
SPEAKER_02: So we will segregate them, right?
1:00:10
SPEAKER_02: May I think they maybe they do have some argument about that, but it strikes me as that'd probably be implausible, but I should wait and see the statute.
1:00:17
SPEAKER_02: Anyway, listen, this all goes to show, once again, like between those two universes that I described, totally fair, free marketplace of idea, non-distorted will of the people, in which Republicans win over a slight edge with a slight edge versus a world in which Democrats will do things to nudge in a certain direction, um, they would rather distort uh in service of power.
1:00:36
SPEAKER_02: And I think all of the discussion today illustrates that.
1:00:39
SPEAKER_02: Josh, we have five minutes left.
1:00:41
SPEAKER_02: Do you want to talk about polling?
1:00:43
SPEAKER_01: I do, because I'm so passionate about this.
1:00:45
SPEAKER_01: It turns out we were, we were talking, uh Catherine and Elon and I about polling and the um how close the polls are and what it means for these elections and some of the polling misses of recent days.
1:00:57
SPEAKER_01: And it turned out I was like conspiracy Josh.
1:00:59
SPEAKER_01: And they were, you know, they were like, well, you know, the polls are pretty accurate.
1:01:03
SPEAKER_01: And I'm like, I don't believe them a bit.
1:01:04
SPEAKER_01: So um I'm not saying I think Republicans are gonna win this election.
1:01:09
SPEAKER_01: Uh I'm say these midterm elections.
1:01:11
SPEAKER_01: I'm saying that the polling really isn't reliable.
1:01:13
SPEAKER_01: So I want to make the case and just invite Catherine and Elon to respond.
1:01:17
SPEAKER_01: Okay, so so what's the case?
1:01:20
SPEAKER_01: Um the first part of it is um just a series of examples.
1:01:29
SPEAKER_01: And uh, you know, thank you to Matthew Continentti of the sometimes of the commentary podcast for bringing these to light.
1:01:37
SPEAKER_01: Uh I found them quite striking.
1:01:39
SPEAKER_01: So let's go back a little bit.
1:01:40
SPEAKER_01: 2014, the Iowa Senate is called a toss-up by the pollsters.
1:01:45
SPEAKER_01: Final polling showed Ernst up by two points, she won by nine points, a seven-point miss.
1:01:50
SPEAKER_01: 2014, Kansas is called a toss-up.
1:01:53
SPEAKER_01: Final poll polling showed Orman leading by one point, Roberts wins by 11 points.
1:01:59
SPEAKER_01: These are all, by the way, the polling error was always in a pro-Democrat direction.
1:02:04
SPEAKER_01: 2016, Wisconsin is called a toss-up.
1:02:07
SPEAKER_01: Final polling showed Feingold favored by three to four points.
1:02:11
SPEAKER_01: Ron Johnson won by 3.5 points.
1:02:13
SPEAKER_01: 2016, Pennsylvania called a toss-up.
1:02:16
SPEAKER_01: Final polling showed McGuinty favored by two points.
1:02:19
SPEAKER_01: Patume won by 1.4 points.
1:02:22
SPEAKER_01: Uh 2020, Maine has called a toss-up.
1:02:24
SPEAKER_01: Final polling showed Gideon five to six points ahead.
1:02:28
SPEAKER_01: Collins wins by nine points.
1:02:30
SPEAKER_01: So that's a 14-point miss.
1:02:33
SPEAKER_01: 2020, South Carolina has called a toss-up.
1:02:35
SPEAKER_01: Final polling shows Graham three points ahead.
1:02:38
SPEAKER_01: He won by 10 points.
1:02:41
SPEAKER_01: In 2024, Pennsylvania has called a toss-up.
1:02:44
SPEAKER_01: Final polling showed Casey ahead by two points.
1:02:46
SPEAKER_01: McCormick wins nearly.
1:02:48
SPEAKER_01: 2024, Ohio called a toss-up.
1:02:51
SPEAKER_01: Final polling showed Merino leading by two points.
1:02:54
SPEAKER_01: He won by four points.
1:02:56
SPEAKER_01: Don't forget both of the Trump elections where polling showed him way behind and then he won in 2016, and polling showed neck and neck in 2024 and then he won.
1:03:07
SPEAKER_01: And then, of course, most recently, 2026, the El Said primary polling had him up by 16 points.
1:03:15
SPEAKER_01: At that point, people who are on the other side just stay home because they think it's hopeless to vote.
1:03:22
SPEAKER_01: He's going to win.
1:03:23
SPEAKER_01: He won by one point.
1:03:26
SPEAKER_01: So there was an analysis, a kind of global analysis of the average rate of misses in polls.
1:03:34
SPEAKER_01: It looked at thousands and thousands of races from 2018 to 24.
1:03:38
SPEAKER_01: Um, and it found that there was an average, on average, a 3.7 point democratic overstatement occurring in 73% of polls.
1:03:47
SPEAKER_01: 3.7%, uh 3.7 point rather democratic overstatement.
1:03:52
SPEAKER_01: But when I dug a little further in using AI, I will acknowledge, um, I asked it to focus on high-stakes elections, elections that might actually swing the nation.
1:04:03
SPEAKER_01: The 3.7 point average democratic overstatement um increases in the high-stakes elections to more like an average miss of uh 6.2 points in 93% of the races that are high stakes.
1:04:22
SPEAKER_01: Now, am I being conspiracy josh here?
1:04:26
SPEAKER_01: It what you conventionally hear from the experts in statistics and polling and so on is it's very hard to model the electorate.
1:04:35
SPEAKER_01: Inevitably, they're asking one group of people uh by phone, usually, who will you vote for, how likely are you to vote, and then they create a model of the overall turnout.
1:04:44
SPEAKER_01: But the um uh I guess, listen, I have it's possible there's just errors in the model, and they're always errors in the same direction, and they're especially large errors when the stakes really, really matter, and sometimes they're shockingly large errors, like 16-point errors or something like that, when it favors the far-left progressive candidate.
1:05:07
SPEAKER_01: Color me skeptical.
1:05:08
SPEAKER_01: I have spent my entire adult life in expert communities, communities that claim themselves to be possessed of expert knowledge who manipulate it for political ends, right?
1:05:19
SPEAKER_01: I am an academic and I am a lawyer, right?
1:05:21
SPEAKER_01: So that puts me into what you see in the law just routinely, sadly, with judges a lot of the time, is the manipulation of legal technical expertise to advance political ends.
1:05:35
SPEAKER_01: Like, what do we see from so many like district courts and so on as really, really unfair decisions that don't make sense under the law, but but wielding this authority of expertise.
1:05:46
SPEAKER_01: Same thing we saw in COVID, right?
1:05:48
SPEAKER_01: And I've spent my entire life in this academic expert community seeing far, far too many people, not all, but far too many people manipulate their expertise, including quantitative expertise.
1:06:00
SPEAKER_01: Advance political ends.
1:06:01
SPEAKER_01: And one more thing about this, and then I'll stop because I don't want to go on forever and I know we're out of time.
1:06:06
SPEAKER_01: But I just want to go on the most recent reveal is that I believe four separate polling organizations just admitted released totally fraudulent polls.
1:06:17
SPEAKER_01: Like, like not like a modeling error.
1:06:19
SPEAKER_01: They were just made up.
1:06:20
SPEAKER_01: They said they did it as like comedy, um, satire, uh, performance art or something like that.
1:06:27
SPEAKER_01: But one of them actually greatly favored El Sayed, quite possibly uh encouraging a rival to withdraw from the race through pure, pure falsehood.
1:06:41
SPEAKER_01: Like they don't even claim that it was um good faith misstatement.
1:06:46
SPEAKER_01: They admitted that it was just a totally fake piece of data that they put out there.
1:06:52
SPEAKER_01: Media didn't vet it at all.
1:06:53
SPEAKER_01: It goes out into the media sphere as like one more poll showing a DSA candidate, another progressive candidate's way ahead.
1:07:01
SPEAKER_01: So, you know, forgive me for being skeptical.
1:07:03
SPEAKER_01: Now, again, I don't have any crystal ball.
1:07:06
SPEAKER_01: I don't know what's going to happen uh in next week's elections, and it's there's a lot of um headwinds that might uh prevent Republicans from winning.
1:07:14
SPEAKER_01: That's not my point.
1:07:16
SPEAKER_01: My point is there is a long record of inaccurate polls, and we have to maintain the kind of skepticism to polling that we have towards media.
1:07:26
SPEAKER_01: You know, people who are Republicans, people who are right-leaning have a deep ingrained skepticism of claims from the media because they know about media bias.
1:07:35
SPEAKER_01: They have a deep ingrained skepticism from academia because they know about academic bias.
1:07:40
SPEAKER_01: Ultimately, I would like to see a society where the media lives up to its mission and academia lives up to its mission, and people on both of both parties can trust them and do trust them because they're trustworthy.
1:07:53
SPEAKER_01: But in the real world, we're very far from that.
1:07:55
SPEAKER_01: And I'm just suggesting we extend that skepticism to polling.
1:07:59
SPEAKER_00: Josh, I have one kind of counterpoint, and I would just say, first of all, I'm sorry I gave the impression that I think polls are real.
1:08:05
SPEAKER_00: I think they're all fake.
1:08:06
SPEAKER_00: I know I cited one earlier, but I think they're mostly fake.
1:08:08
SPEAKER_00: But I think it's because they're a junk science.
1:08:10
SPEAKER_00: I don't think it's necessarily people are um trying to skew their results, even though the pollster can skew the results however they want with their own turnout models that are never really based in fact, but mostly just based in their own vibes.
1:08:23
SPEAKER_00: Um, but look at like 2022, I believe it was, when we all thought there was for sure gonna be a red wave.
1:08:29
SPEAKER_00: Okay.
1:08:29
SPEAKER_00: We were really all thinking the polls show it red wave, and then we didn't get it.
1:08:33
SPEAKER_00: We didn't get it at all.
1:08:34
SPEAKER_00: It was totally wrong.
1:08:35
SPEAKER_00: And so my theory about polls tends to be that these are like fake scientists type of people who think they're doing something super scientific, but really they're just dialing up 300 landlines and talking to people like me or my mom who always answer with fake answers because like F off, you know, stop calling me and we think it's funny.
1:08:55
SPEAKER_00: So I don't know if I agree that it's necessarily the pollsters that are trying to do something skeevy, but maybe.
1:09:02
SPEAKER_00: I mean, I they're not above it.
1:09:04
SPEAKER_01: So there, there, I I actually do that's interesting, Catherine, because I actually do disagree.
1:09:09
SPEAKER_01: I I um, you know, my experience in academia is that the actual bodies of knowledge, say legal knowledge or public health knowledge or statistical modeling knowledge, are valid bodies of knowledge.
1:09:23
SPEAKER_01: They are just misused by the practitioners for ideological ends.
1:09:27
SPEAKER_01: That's been my experience.
1:09:28
SPEAKER_01: Again, I'm not a poster.
1:09:30
SPEAKER_01: I suspect it's a valid science.
1:09:32
SPEAKER_00: I'm fine with being the science denier on this show.
1:09:34
SPEAKER_00: I can totally take the role of science denier on this one.
1:09:38
SPEAKER_02: I love it.
1:09:39
SPEAKER_02: Let me just say uh in concluding thoughts uh on this episode, which was long and wide-ranging.
1:09:44
SPEAKER_02: So thank you to our audience for sticking with us on this really important issue, uh, elections, midterm, the global communist, Marxist, leftist march against democracy, uh, and so on.
1:09:53
SPEAKER_02: It would not surprise me if the polls were manipulable and in fact manipulated for this purpose.
1:09:58
SPEAKER_02: I tend to agree with Catherine that it's probably just incompetence.
1:10:01
SPEAKER_02: It's probably the science is not actually that rigorous.
1:10:04
SPEAKER_02: Having said that, if Democrats are willing to do things like decoy Dan, if they're willing to do things like open up emergency vote centers to, you know, uh nudge the vote in their direction, to extend polling, you know, just in areas favorable to one candidate or another, if they're willing to do all of those things to actually distort the expression of the will of the people, then of course they would plant fake polls in order to do this psyop against you know people.
1:10:26
SPEAKER_02: Uh uh I'll give you one more final example and then and then I'll close out the episode.
1:10:31
SPEAKER_02: I just saw today on X, you know, I stro I scroll, I shouldn't, for like five minutes in the morning when I'm first sipping my coffee.
1:10:37
SPEAKER_02: Oh what do I see?
1:10:38
SPEAKER_02: Someone posting an account on X with tens of thousands of likes and engagements saying, I just voted for this Democratic candidate for these reasons, and you should too.
1:10:48
SPEAKER_02: This person has nine different posts with in nine different states voting for the Democrats in those states, which is illegal, but of course you're not a real person.
1:10:58
SPEAKER_02: You're not a real person.
1:11:00
SPEAKER_02: And it's always the Democrats.
1:11:01
SPEAKER_02: I don't see any Republicans doing this.
1:11:03
SPEAKER_02: There was a New York Times article recently about how Democrats paid TikTok influencers to promote their candidacy, and the TikTok influencers do not have to disclose that they were paid by the candidates.
1:11:15
SPEAKER_02: This is the kind of tactic that distorts what people actually believe.
1:11:18
SPEAKER_02: It distorts the expression of democracy, all in service of left-wing power.
1:11:23
SPEAKER_02: And then, as Josh says, it's all projection.
1:11:26
SPEAKER_02: Then they will claim that we are doing, you know, precisely what it is that they are doing.
1:11:30
SPEAKER_02: Like the right is doing precisely what the left is doing, which is somehow undermining democracy.
1:11:34
SPEAKER_02: Anyway, I wouldn't fire it up.
1:11:36
SPEAKER_02: Thank you for listening to this episode.
1:11:37
SPEAKER_02: We went a bit long.
1:11:38
SPEAKER_02: Thank you to our audience.
1:11:40
SPEAKER_02: I think this was a great episode.
1:11:41
SPEAKER_02: Hit that like and subscribe button.