Interview Only w/ Molly Roberts - The Blueprint For How To Steal An Election

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4:09Well, one of the questions I get a lot is from family, friends, concerned listeners. And it's is, can the midterms be fixed? Can they be rigged? Fixed not like a corrected fixed like rigged? Can they be stolen? And as many of you know, I always call myself vigilant, but not an alarmist on these things. I think there's certain aspirational things that politicians say that can't be implemented. But then there is the, you know, there are mechanisms that I think when I say you got to be vigilant is you got to pay attention when you see people messing around with those mechanisms. Well, Molly Roberts, who's my guest today is the senior editor at LaFaire. Those of you may be familiar with LaFaire and its founder Ben Wittis. They do some terrific work.

5:09Doing what it just is sort of the politicizing of the rule of law. I mean, if there's, there's a North Star, I think, and Molly, if you want to chime in here and correct me. There is a North Star to LaFaire's editorial focus. I think it is that where the rule of law and politics intersect. Is that the, is that the fairest way to describe LaFaire? Yeah, I mean, I think, you know, when LaFaire started, it was really national security focused. And you wouldn't have had someone like me writing for it probably because I don't have a background in national security, anything. But how law fairs really changed in recent, recent issues is that it's become clear that democracy and rule of law is a national security issue in a way. And so the stuff that I write about, which recently has had to do with elections, but also has had to do with politicization of the Justice Department is motivated by that idea that it's just as important to national security for the laws to actually mean something as it is for, you know, I don't know.

6:15I think it's a good idea to have an a U of F. We're engaging it up or in that point. So let's talk about how you went about this and I, you know, I felt. I felt like you went about it the way I would, which is like, how, if someone were trying to do it, how would it be done? Is that fair to say? Is that the prison you used? That what the administration is doing on elections across a variety of vectors. So everything from this executive order having to do with mail-in voting that's before the Supreme Court. Now the administration has just appealed to judges and junctions to the Supreme Court to the question of can you lawfully deploy troops or federal agents at polling places. Recently, I started tracking this kind of more technical, more specific question of regardless of what actually happens when votes are cast.

7:15Is there something kind of sneaky might be the word that could happen in Congress that might remind you a little bit of President Trump saying do the right thing Mike Pence on January 6th. So this is to me the important, you know, and I've, like I said, I at the my little mini intro there when I brought you in, I'm not somebody that looks around every corner and thinks that there's, there's another conspiracy to steal the election. But I do think our bid the vulnerabilities in our system are always most exposed when the results aren't decisive. Right, the 2000 election is a terrific example of this right we basically, you know, you got to a point where it wasn't going to be decided by ballot boxes. It was going to be decided in courtrooms. It is very possible that if we are looking at a house majority that is under five in either direction, but in the, you know, there is power that the house has up until January 2nd.

8:172027 January 3rd is the day that the new Congress is supposed to be sworn in and that's the, you know, that's the that's our period of vulnerability. If you talked to experts about America when we're the most vulnerable, we're the most vulnerable during a transition presidential transition when there is, there isn't clarity of who's in charge and things like that. Well, you could arguably say the same thing about the midterms right that our vulnerable period is in between election day and the swearing into the new Congress right. Yeah, absolutely. I think that's true on two fronts. One of the fronts is certification right so after the election, the first you have the truly local officials going and they're can be saying and they're making sure there are no regularities and they're resolving any apparent discrepancies and then they're certifying the election. Then that goes to the states and then they do the same thing and of course what we saw in 2020 and we saw in 2024 was some weirdness is on the local level where local officials said they didn't want to certify the elections that often came from an election denialist kind of big lie sort of place, but it didn't work out in the end because for you to successfully as a local official not certify an election and for that to go all the way up to what credentials end up getting.

9:37Turned into Congress, you really need compliance up and down all of the food chain and from the courts. There's a lot of people that I got to participate in that conspiracy. It's not just one or two people right. Yeah, exactly exactly and again it's not just you know it's certainly not just the local officials and then even when you get to the state level, you have to have, you know, the official who's in charge ultimately of the certification there, the governor, the secretary of state, some local board, you have to have them on board. Then you also have to have nobody who's willing to challenge it in court or a court that says yeah, this is fine go ahead and legally that's just not something courts. It seems are going to stand for there's a lot of a lot of doctrine federal due process doctrine around the idea that if the state law says this is how the elections work, there's a duty to certify you can put someone in place to certify someone else refuses. So that but it's a vulnerable period and that's why a lot of people who do research on this the Brennan centers particularly good resources on certification, but why they said after 2020 hey states, you might really want to lock down this process, you might want to tighten up the timelines and you might want to make clear who has what duties and what happens if someone is trying not to comply with those duties.

10:57The good news is a lot of states have done that so things are looking better on that score than they have in previous elections, but then the second front on which the. Let me let me let me go let's stay with the first front let's stay with the states because I have a couple of questions on specific states before we get to your second part. I there's no doubt in the bad presidential battleground states that it feels as if those are hard to manipulate there's been there's been enough. So essentially purging of election deniers at the secretary of state level things like that. Well what about in these midterm states take a state of Texas. If we have a super close election. How is the certification process in Texas bullet proof for now? You know, I don't want to tell you that anything is bullet proof. I don't want to be that person is that that something was bullet. Sure. So and I don't know the exact kind of weaknesses in every individual state. I think I would just emphasize the idea that you need everybody on board in 2020.

12:02You know, you saw obviously a Republican official Brad Raffin's burger in Georgia not beyond board. So you need not only those people on board, but again, you need also the courts and you need that to be the case as you escalate through the courts. Yeah. To me, what I would worry about a lot more than a court ultimately allowing a wrongful certification to go through would be a certification delay. It would be the idea that if you have enough people on board, you can kind of push this litigation process on and on and on. And if you push it on past January 3rd, that's where you get to that second front. I was mentioning. So, you know, that's interesting. You know, one of my what ifs about the 2000 election is over certification. And in this case, Florida certified before the count was done. If Florida, you know, it goes back to why I always said every election counts back then Florida elected at Secretary of State. Two years earlier, had there been a Democrat in that office, which actually due to a series of bizarre circumstances.

13:02There should have been. It's just, you know, sort of a happen stand up for public and primary politics back in the day. And it doesn't get certified. Well, then the Supreme Court has no there's nothing to send to the Supreme Court. And it stays a Florida issue. And if anything, we may have a do you may not even have. You know, to certify or not certify depending on what you want from the courts. You want state courts involved or federal courts involved. That is also a strategy correct. Yeah, no, no, no, and that's that's definitely an interesting point. I mean, again, delay can be useful in some cases. And in some cases delay would be mandated. If you don't it depending on state law, right? So certifying faster maybe before provisional ballots get counted and things like that. Also, I mean, either way certification is a is a full crop. Yes, yes, right. Certification is a full crop 100% and kind of the key area vulnerability that I've been looking at is this question of when the house is an organization when it doesn't.

14:04Now let's go to that. Yeah, yeah. So, okay, but you're right about certification being a full group. And I do I do want to say that sometimes state law. Yeah, explicitly makes sure that someone isn't seated until certification has happened. And so like a good example of that would be the Al Franken race for a long time. Nobody was seated because no official certificate had been signed and the law there said you can't sign the certificate while it's being litigated. So as long as you had litigation happening, you wouldn't get a certification, but you can make an argument for why you might want a certification while it's being litigated. And you know that might can get to that now we can get to January 3rd and sort of what happens on that very strange day. Well, I want to go to that because there's different rules that govern house races than these other races because what people are always surprised to learn if they don't know it already is that the House of Representatives is the ultimate arbiter of house selections. Yes, exactly. And that's what makes a very narrow majority.

15:08I think vulnerable if it's a flip to shenanigans. Yeah, so there's this kind of strange situation in the House specifically. So a lot of people who are worried about a January 6th on January 3rd, which is the key date here. That's the date where the House and the Senate. It's a constitution. Yes, the 20th Amendment. That is a that is in that that is not a you know, it's not something they can. That they can't delay, I believe, right January 3rd. Yep, 20th Amendment says January 3rd. Yeah, exactly. January 3rd at noon. That is the key date and the key time. So a lot of people have said I'm worried that if the Republicans lose the elections, Mike Johnson and the current Republican majority are going to refuse to see the Democratic winners. And that's actually as scary as it sounds sort of nonsense based on how the House works because at January 3rd at noon. The old House dissolves the House isn't a continuing body and that might sound like something out of science fiction.

16:12It's actually a parliamentary practice thing, right? It's entire membership turns over from one election to the next, unlike the Senate. And so there's this strange liminal period of time during which functionally formally there is no House. Mike Johnson isn't the speaker. It came to freeze isn't the minority leader. There is no Republican majority regardless of who won the most seats. Yeah, friend of mine who is an expert at this stuff says it you start literally with a blank piece of paper. And the House can organize itself anyway, it wants to organize itself like it has this. It's a uniquely, it's a unique period. Where you can create different rules on how the House works and you can create different committees and conferences. It in some ways it's a blank canvas. Yeah, it's all happening by custom by custom. It's creating according to parliamentary procedure and according to the old rules package. But again, that is by custom and election law lawyer. I spoke to Ned Foley at Ohio State University called this period the barrier between law and non law. And it is and it's weird and it's concerning and it's particularly concerning because you know, you might think now, I'm reassured.

17:20There's no speaker Mike Johnson. There's no current Republican majority. But there's no anything except there's this one individual, the clerk of the House, who's authority does carry over from one session to the next. He's not a member of Congress. Right. So a lot of people have worried about this particular possibility of the quote unquote rogue clerk who during this key period of organization is responsible for making up the role of members who vote for speaker. Once they voted for speaker, you have a speaker. The speaker starts wearing in the house. You have a house. But during this key period, it's the clerk who's sort of sitting there in the chair, running things with a lot of authority for someone who's not even an elected official. So let me paint a scenario that is I think more viable now because of a court ruling. The state of Missouri has been told it cannot use these new congressional districts.

18:21It states the Supreme Court ruled last week. They held primaries based on the new congressional lines. And now they're told they have to hold the general election based on the old congressional lines. I think the likelihood that the entire election get the primary season gets thrown out what they do here. I think there's still having to. I think voter disenfranchisement lawsuits are going to get filed as they should. It's you should this is wrong right now. The state messed up. Maybe purposely right they tried to jam the courts. No, no, no, we're going to hold the primaries. Even though we don't we don't have the ruling for sure yet, but we're going to hold the primaries assuming we're going to get the ruling we want while they didn't. So now we're in this weird situation. And I think the likelihood of a revote is high and it's possible the revot is in after November. Maybe it doesn't take place until January. Suddenly we have a scenario where there are there's an entire state's delegation. I believe Missouri is at eight from that mistake and I think it's a congressional districts.

19:26Probably would be a seven one under the old map. Maybe a six to. And if that is the difference between a party getting 218 and not 218. Then suddenly we're in a no man situation, no man's land situation. So what could happen in December in the lame duck. Right. That would that could possibly sort of change the numerator frankly in the house come January. What could happen in December. I mean, I think what you have to worry about with this situation like that is the question of what the clerk is obligated to do on January 3rd. If you don't have a certified election in Missouri in any of these districts, right. So the clerk there's a statute that governs what the clerk does. And the clerk has to put on the role according to the statute. Essentially the people who are certified in accordance with state law. But he's arguably when you read this statute, obligated to leave vacant any seats where there is no certified winner.

20:35So if you get to the situation where you know of the certified winners on January 3rd, then the clerk theoretically shouldn't see anyone. And then you get to weird math, right, because you have to figure out who's voting for speaker and who gets to win the vote for speaker. And the way that it works is that you have to have a majority of the people voting, either yes or no, it's not that you have to have a majority of the 335 people who should be voting. If you're sorry for 35 people who should be voting if you actually had everybody certified and nothing in dispute. So they can see to make it essentially so that for the chamber to flip, you'd have to like 2x the number of you know say you're a road clerk, right. So here a road clerk and an election yields a 220 to 15 split in favor of the Democrats. If you're just replacing the Democrats on the role with Republicans for the purposes of the speaker vote, you get 218 to 17.

21:38The Republicans are in the majority. They can elect their speaker. But if you just remove those 3 Democrats, you leave 3 seats vacant and you have a 217 to 15 split and the Democrats are still in the majority of that split. So you haven't accomplished anything. You'd need to leave 6 seats vacant to be able to change the balance. So what you're saying about Missouri, I mean, it totally depends on the numbers, but it could theoretically flip the control. Right. We don't know. Right. Right. We just don't know. And so I think that there is a good argument that as a matter of positive law, the clerk would be obligated to leave those seats that you're describing vacant. But that's that's the kind of a disaster, right. Because what it does flip it. And then the they elect a speaker. And so what should that speaker do? I mean, you know, the speaker probably should not see anyone. This episode of the Chuck Todd cast is brought to you by chapter. Now almost everything you hear about Medicare is somebody quietly trying to steer you somewhere.

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27:09Enjoy fresh and delicious savings for every meal. Hurry in. These deals won't last. Visit vans or Albertsons.com for more deals and ways to save. I mean, we sort of had a test run of this in Pennsylvania. I want to say a couple of the last couple of cycles. Wait, their state house assembly. Forget what they call it there in there and they're coming well was really close. I think somebody. I want to say that like somebody died after election before swearing in. And it literally changed the number. But as soon as the special election was going to get killed, it was going to change it back. So then it was sort of like who was going to be in the majority for a brief period of time was one party than the other. And I can't remember what they ended up doing. I mean, I think they just held multiple leadership elections in a couple cases. So we've seen this in state legislatures and they essentially have. On Shin Doke right there hasn't been a in attempt to sort of outright theft. I don't think right right. I mean like what you should do is you should leave those seats vacant.

28:17The strangeness would be if you leave them vacant and then ultimately the election happens. The certifications come in and the certifications show that the actual winners flip the control of the chamber. And then you have the question of okay. So at that point is the house obligated to see those people if they properly left them vacant. The speaker could see the wrong people and it's possible for an interview. No, I mean, and there's a there's precedent for that. There's a famous infamous dispute called the bloody eights Indian as eighth congressional district. This is a dispute. I think it was the 86 midterms. Maybe it was 84. It took two years to litigate. I can't remember 84. He six, but he said, actually, the recount showed the Republican winning and the Democratic majority sat the Democrat anyway. And everybody's like, well, how can that be the house is the ultimate certifier of elections? Correct.

29:17Yeah, exactly. And that's exactly what happened on the bloody eighth, the Frank McCloskey, the incumbent Democrat was challenged by Rick McIntyre Republican. And initially so McIntyre was certified by the Secretary of State. And then McCloskey wanted to block McIntyre from assuming office. The house decided, okay, we're going to keep the seat vacant. Well, the administration committee evaluates this election. But the House administration committee because the Democrats were in the majority had a Democratic majority. It was two one. And they basically the Republican said the recount that you guys are doing isn't in conformity with Indiana law. And you're counting non conforming absentee ballots. And it didn't matter. The majority of the task force prevailed over the minority and the Democrat who wasn't the one who was certified was seated. And I mean, I think that really what that shows. I mean, by the way, that incident is so important because I could argue it created new Congress that newt gingriches political power came from that moment where he was trying to galvanize a Republican party that

30:25did not want to be a that kind of party. Any galvanized them to become that kind of party. Yeah, yeah, and Republicans tried to get it overturned in federal court. And the court, I think Scalia wrote the opinion on this was before he was on the on the stream court, but he wrote the opinion as a federal judge. And he said that the claims weren't just as well because it was a political question. And so that's the issue you get into at the point where you have a speaker and a majority. The courts are going to say this is a I mean, are almost certainly going to say this is a political question. The house is the judge of the returns of its own members. We're not going to do anything. The kind of tricky part and and sort of an interesting argument in the road clerk theory area is if the clerk is, you know, doing something nefarious. Will the court still say it's a political question or because he's not a member of the house and because of that moment the house doesn't exist. And because there's a statute might they be willing to intervene to tell him that he has to comply with what's his ministerial duty to put the correct person on the roll.

31:32I think that that's kind of a live argument and I couldn't tell you my guess is that it would judge right kind of what they wanted to do. But I think a judge could write a decent opinion and either in either direction on the question of what they have to do depending on whether there's only one set of credentials. Now clear state law is on what credentials are valid whether there's a dueling set whether there's a certification delay. I think courts possibly would intervene at that weird time during organization with regard to what the clerk did, but at the moment that you get the speaker you get the majority. Courts are almost certainly going to bow out there's there's one possible caveat. There is a case Powell versus McCormick in which the Supreme Court ruled that the house is not going to be a court. That the house did have to so basically it was a qualifications case. It wasn't it wasn't a certification case. So it's a little different, but essentially the Supreme Court ruled that the house couldn't exclude a properly credentialed member elect. So, you know, the understanding there would be.

32:41It was the great all the case where they kept they kept delaying. It was a special election they kept delaying the swearing in of a member. This is this is the house voting not to see a New York representative Adam Clayton Powell was his name junior. This goes way back. Okay. He was accused of misappropriating federal funds so they didn't want to see him. And what the court said was well, you can expel him for his misconduct by a two thirds vote, but you can't just exclude him by a simple majority vote from membership in the first place if he's duly elected. And so I think some people would argue that if the house tried to exclude someone with the proper credentials and the qualifications, the certificate, then the courts wouldn't intervene, but I think you could also argue they wouldn't because there wasn't any dispute about who'd won the race. There was no one saying, oh, well, you know, powled in win someone else one. It was the courts basically said, well, he has the constitutional qualifications.

33:41I think the moment that there is like a colorable claim that someone else has won sort of a live dispute about who won that different people in the house are on different sides of that's likely the moment the courts bow out. They say that's a political question. They don't do anything. So that's part of why it's such an important period organization. That's the only moment at which it's really reasonable to imagine courts intervening at all. And so if a majority gets flipped by a rogue clerk or by a clerk who's complying with his duty to leave seats vacant in the event of a certification delay, then you've crossed this Rubicon where you might have a majority that's an improper majority. And you run into the question of even if the certifications come in later, even if the result is different. Does the house does the speaker really have any obligation to see the lawful winners or you know, does it have any obligation that courts would ever enforce and the answer is probably not. All right, let's talk about the clerk.

34:41How does who decides who's the clerk of the house? Yeah, so the I'll tell you who the current clerk is, which I think is helpful. His name is Kevin McComber. He was appointed by Kevin McCarthy, but he served in the clerk's office under Nancy Pelosi to he's generally understood to be a serious person has bipartisan Bonafide's. So you look at Kevin McComber and you think maybe not that much to worry about. But the speaker of the house can fire the clerk unilaterally. So when people say, you know, oh, current speaker Mike Johnson turning the election. This is where current speaker Mike Johnson has power because he can fire the clerk unilaterally the moment that he sees that there's an issue and that it might be convenient to have a compliant clerk in place. He can do that in December when you're asking fire, but can you hire a clerk? You cannot need a majority to install permanent replacement, but it's sort of cold comfort because the speaker can also unilaterally appoint an acting clerk who temporarily is supposed to fulfill all the statutory duties of the clerk, including the making up of the role.

35:49And in fact, McComber himself was an acting clerk for about a year and a half when he started his term. So I don't think that the majority to install a permanent replacement thing is as comforting as it seems. I think that you know, sure it's it's you if you're arguing. The clerk is in charge here. Everybody should obey the clerk. You have more of a leg to stand on if the clerk is the properly installed clerk, but yeah, you need the majority to install him presumably that is. I mean, I don't want to do so Johnson Johnson can appoint an acting. Is there an expiration on the acting title before the before the whole house gets to vote on on whether this person should be the clerk. I don't think there's an expiration. I I would want to go back and check it and I don't want to say something that I'm going to be wrong about, but McComber was an acting clerk for a year and a half and that didn't expire. Boy, that is really problematic. That is a huge vulnerability. It seems like a vulnerability to me. Yes, I mean, I think again, the issue is so I don't think it's that difficult to put the compliant clerk in place. What I think is difficult for.

37:00What I think is difficult is for the rogue clerk, even if the clerk goes rogue to actually successfully pull off this sort of coup that people are describing. That what so give give the we've identified the vulnerability give the now you're you're giving a little bit of comfort that might have a little teeny tiny bit. Yeah, so I think there are two axes on which to think about it. One of them is legal viability and one of them is practical possibility. So we talked already a little bit about the legal question. And so that's where it seems like as a matter of positive law. The clerk has a duty what's known as a ministerial duty and that goes all the way back to Marbury versus Madison, by the way, most people remember that is the case that in trans judicial review, but to get there. So what's important was that Madison, the secretary of state had a ministerial duty to deliver a Marbury who'd been appointed as a justice of the piece is commission and the court said, yeah, it's up to us then to hand down a rid of mandamus.

38:08So what courts do is they say, if is there a ministerial duty that we can enforce and to do that, they ask whether there's any room for discretion in the statute. So in this case, you look at the clerk's duty to make a role of the representatives elect and place there on the names of those persons and such persons only whose credentials show that they were elected in accordance with the law. And you ask, is there any discretion there? And you know, you tell me, I think you could argue that there's not at least in the case where there is someone who comes in with a certificate. And the person who comes in with the certificate and state law is clear on who the lawfully certified elected member is and state law is clearer and clearer, as I mentioned earlier. So I think there's a good argument that the clerk does have a ministerial duty to put the certified winner on the role if there's a certified winner.

39:08So I think that there is a decent argument to make that at least some courts would be willing to enforce that ministerial duty with a rid of mandamus if the clerk refused to do it and install, install someone else to do it for him, which they can do. And say it's not a political question because of what I mentioned earlier about the fact that the house isn't in session and the clerk isn't a member of the house. I think it's a little trickier where there are dueling sets of credentials. I think the fact that state law is better on that mitigates that issue. And I think the problem again is the delayed certification where you could argue that the clerk in fact has a ministerial duty to leave the seat vacant. So that's the legal side of it. So it's interesting it it feels as if then that the clerk that that this isn't the vulnerability the real vulnerability of certification itself and not having certified elections, not having certified and I'm like trying to I'm going through I think the biggest vulnerability is the state of Texas.

40:09And let me let me walk you through it. It's an all republican controlled state at the moment. It's going to be it looks like we're on a knife's edge. This looks like it's going to be extraordinarily close elections. I could identify three to five seats in Texas alone that might you could argue the Democrats win that if you took them away, it could put them below the majority right like where suddenly they went from. I mean, in theory, I was I think what what you're describing if we're assuming that everybody's going to behave as a partisan. Then it is the states where the certification is is is being controlled by the Republicans where Democrats could make games. And that's why I look at the state of Texas and I guess to a lesser extent Ohio though Mike DeWine is just doesn't roll that way. So I'm not concerned about a Mike DeWine. Greg Abbott's on the ballot. Greg Abbott himself may be fighting certification right and you have an entire slate right where there's going to be pressure and motive and all sorts of things.

41:16So painting that picture right I already painted a Missouri picture for you that is a different scenario that is frankly legitimate for the clerk to say, Hey, I can't see these folks. There's real questions here. Texas seems to be and I'm still not clear here, Molly, that just because the state certifies a house election that the house can't over can't just sort of ignore that I thought the house had that power. Yeah, so okay, I guess two things one. If you accept my argument that the clerk has a ministerial duty to put the lawfully certified person on the role, which and that that goes to your last question. You're saying that the house doesn't have to do it. The argument is that the clerk does have to do it. The clerk isn't a member of the house. The clerk doesn't have this sort of article one protection for many judicial interference, but you're right that if you accept that, which I think some people wouldn't accept. I think it's possible that a clerk that that a court wouldn't buy that right so I'm not going to tell you that a court necessarily will I'm more telling you that if a court wanted to not let this happen, I think a court could that that would be a viable to take and it's a solid legal argument.

42:29But if so if you accept that argument that some people might not accept, then you are 100% correct that it means that the role making process is only robust only as involved liberal interference as the certification processes. You're totally right. It hinges on whether you can first of all certify someone who shouldn't be certified, which I think is quite difficult. And second of all, whether you can affect a delay that gets past that Jan 3rd period, which I think is easier to do. So that I think that is that is a totally accurate assessment of like the logical implication of that argument. The argument might make feel a little better, but it shouldn't necessarily resolve all your concerns about what can happen, but that gets you to the practical possibility point, I think like what. So if if there's a certification delay, how likely is it that the house actually gets flipped? And I think that one point is this thing I was saying about the math and the two X thing right you need a you need a you need a razor thin margin like to me if it's an even split all bets are off like I'm not going to tell you to feel good about things if it's an even.

43:37No, I mean look, I think that's always the less of two of 2000 elections close enough at this point, it's who's got better lawyers. I mean, that's what we learned in Minnesota Senate in 2008. It's what we learned in the presidency in 2000. Yeah, yeah. So I mean again, if it's that narrow, then you have a certification delay and I think you can run into real trouble. If it is a wider margin than to have a certification delay flip control. You would need to have a lot of seats and a lot of a lot of people following this conspiracy like a lot of people have to get together. So you would need a lot of people to get together to do this in all the right places. You would need a lot of people in the correct place or multiple correct places to make that actually yield the math that you wanted. So I think that it's quite difficult to do and I think that when the margin is wider than I mean, I think that kind of no matter what you do get a situation of chaos like so let's say that the clerk says all right, I'm going to leave these seats vacant.

44:51Well, we've seen that happen. We've seen a clerk leave seats vacant. So I'm taking you all the way back to 1838 1839 in what's known as the broad seal war, which is essentially a certification dispute. It's not a delay. It's a dispute. You have dueling certificates, but it teaches basically the same lesson. And there New Jersey elected. It had six federal representatives. Five of those seats were in dispute and partisan control of the chamber hinged on who the Wigs or the Democrats won those seats. So the governor who was a wig certified the wig winners and he gave them the official broad seal of the state. That's why it's called the broad seal war. So they came in with these fancy certificates with the broad seal on them. But a few towns returns had been left out. And if the returns had come in properly, they would have shown that the Democrats won all five of those seats. So the secretary of state, who was a Democrat certified quote unquote the Democrats, but he didn't have the broad seal. He had his kind of makeshift dodgy looking certificates.

45:53So everyone shows up to work at the US Capitol. It wasn't January 3rd back then. It was some time in December, but they all show up to work with their dueling certificates, some of which have the broad seal and some of which don't. And so the clerk at the time his name was Hugh Garland. He'd been appointed by the outgoing Democrats who knew the election would be tight. They hoped he'd be compliant. And what he ended up doing was he said, I'm just going to skip New Jersey. They would have wanted him to just put the Democrats on the role. He actually didn't do that. He said, I'm going to skip New Jersey. And going to leave those seats vacant. But he's part way. Seems like a reasonable decision. That's what he said. That's the way to give no party advantage. He said, you know, of course, the WIG said, well, the way you have to give no party advantage would be to properly install the WIGS who have this nice broad seal on their certificates. But he said that that was the thing to do to leave the seats vacant. And there wasn't this statute at the time, telling him to do that. But that would be if the statute had been there, that would be what the statute requires.

46:53But he'd already started calling the role when he did this. So it interrupted the calling of the role. There wasn't a quorum yet. He said, there can't be any business done until there's a quorum, but there can't be a quorum until I call the role. Until we've addressed all these objections or until all the objections are gone. So it was this impasse. And what happened in the end, actually, was that John Quincy Adams came to the rescue took the chair. There wasn't really an official mechanism for this. But as we were talking about earlier, it's sort of all by custom. He just said, all right, clerk, move aside. I'm taking the chair. And everybody kind of wanted to avoid anarchy. So even the Democrats let this happen. John Quincy Adams was a wig. And he put to a vote whether to seat the WIGS with the certificates. And again, even if he hadn't done this, the clerk could have said, and I think it's reasonable to imagine the clerk saying, let's vote on whether to see the WIGS with certificates. Because like, if you have a situation where there are dual and certificates, or there's a delay, you're almost certainly going to have an objection to whatever role the clerk makes up.

47:55From the party that role disfavors. And so then there's a question of what should the clerk do and they vote on that because they're operating according to parliamentary procedure. They can motion to make votes. They can vote. But who gets to vote on whether to on on whom to seat who gets to vote on whether to see the WIGS with certificates to the WIGS with certificates get to vote on whether to seat themselves. Do the Democrats get to vote on whether to see the people who have the broad seal certificates when they have their certificates. So there becomes this whole series of votes on who can vote. There's like this parliamentary vortex of voting on who can vote. And at one point in fact, it is so meta all the claimants at one point vote the WIGS with the broad seal certificates, the Democrats with the made up certificates, which is insane. Right. Because no matter who won these disputes, some of them obviously are not entitled to vote here. And yet they all get to vote because that's just what happens at the time in the chaos. Ultimately, the WIGS with the broad seal certificates do get seated. But then Congress thinks it over realizes, oh, you know what? It's actually true that these towns returns were left out. Those returns would have let the Democrats win. And they seat the Democrats in the end.

49:10So the WIGS, the WIGS get put on the role. They get seated. And ultimately they they change the seating. And it's sort of interesting because I don't think you'd see that part of it happening now. And it's like I said, I think at the point that you get to, I mean, it's like the bloody eighth right the bloody eighth is the opposite of that. You're not going to see the person who rightfully won if you're in control when you don't have to do it. Why would you do that? But I think that what it teaches you about the clerk is in the process is that no matter what the clerk does, if the clerk does something that isn't, you know, in accordance with the regular order of things where the person who appears to have won the election gets seated, you're going to have an objection. You're going to have votes on who can vote and you are going to have some degree of chaos and how that gets resolved is no longer a legal question. It's wholly a political question. Right. And maybe there'll be some deal making this episode of the Chuck Todd cast is brought to you by soul. So if you love that end of the day, unwind, but hate that hangover, souls out of office is for you. These sparkling THC drinks and gummies give you the same relaxed social feeling without the alcohol, without the calories and without the crash.

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54:57There's a point where it becomes either a legal or a test of wills inside that chamber. But either way, that's that's one vulnerable. The certification process is a vulnerability. Anything else we're leaving out here? I think as far as the January 3rd vulnerabilities, I think that those are the key things. I think that the Senate's not really the Senate's kind of immune to this because it is as you know, it's a continuous body. Yeah, the Senate is a continuing body. And so you don't run into a situation where you have this period of organization where there's any one official who could go rogue. That doesn't mean that Senate elections can't get a little ugly. That doesn't mean that there can't be a dispute over whether somebody should be seated. But you know, it's going to depend on the people who are seated in the Senate and how they decide to resolve that. You know, you'd have all the undisputed people sworn in and then they would decide what to do.

55:59I guess that brings me to kind of a second question in the house, which was you asked if there are any remaining vulnerabilities. And I don't really think so. But some people would tell you that even at the point where the speaker has been elected. So let's say Hakeem Jeffries becomes the speaker that Republicans could say, well, you're starting to swear people in. We dispute some of these seats. And there is this custom. It's mostly been custom in the modern age, although it's not clear that it has been followed uniformly in very recent years, but there's this custom. What's known as the stand the side principle where if a seat is disputed instead of having the certified people who are on the role who elected the speaker, take their oath. They're supposed to stand aside and wait until everybody else has taken their oath. And then those people can decide whether they feel that they should be seated. And so the argument is that while still Republicans could challenge just enough seats and just enough people to stand aside so that then when everybody was sworn in, they'd have a majority.

57:04But Hakeem Jeffries could also just say, I don't want to do things that way. At that point, you have a house. They can change the rules. So I don't think it's a real vulnerability. The other part of this and it goes back to and it's something you keep you keep coming back to and I'm glad you do, which is, look, in theory, there's a lot of things that could happen that would be quote unquote, undemocratic. But for them to happen, you have to have a lot of people go along with it. You know, I mean, what we're describing here, you have to assume every member of the House Republican conference will go along with some of this stuff. And I think it's pretty clear we've already seen this is not a very functioning House Republican conference. They have plenty of factional disputes among themselves. So it is, it is certainly a theoretical vulnerability. And I think we have correctly described how, again, I go back to every close election creates vulnerability. And I think that's the, that's probably the ultimate lesson to take away from all of this. But you do need a lot of people participating in the conspiracy for it to work. Yep, you need a lot of people participating in the conspiracy in the States to create a certification delay or a wrongful certification. And then you need a lot of people participating in the House. You need them in lockstep.

58:15We talked about the difficult math, particularly if it's a delay, say that you've cleverly done your math to leave just the right number of seats vacant, but then you have one defector, then you've math doesn't matter anymore. So, yeah. And I mean, I think, you know, another I'll try to be briefer with this episode from history, but around the time the Civil War, there was a clerk who actually decided to go rogue and to try to do a coup, not to just throw up his hands and leave the seats vacant. And this was sort of a complicated time already the Democrats in the border states, sorry, the Republicans in the border states had made it difficult for Democrats to take control of the House. The clerk was this man Emerson et thridge, he had been pro union and pro Republican and the Republicans had appointed him. They actually created the statute that defines the clerk duties now in appointing him. They thought it gave him some broad powers to exclude people. And they figured that he would exclude Democrats if need be, but he actually switched allegiances to favor the Democrats between when he was appointed just changed his mind.

59:20And he did what was expected of him and excluded 16 credentialed claimants from the role, but he excluded the Republicans instead. So the Republicans panicked, they thought, all right, they're stealing the election now. And it turned out a few things. One, the Democrats had these 16 people excluded. And he they were replaced. And even then when they went to vote on the speaker, they didn't have enough votes to put the wrong speaker in place. People, people, they came, they'd all fell out of order. It was disorganized. They just they couldn't, they couldn't do it. They thought they'd done the math and it didn't work and it didn't work because et thridge was willing to hear the objection of the Republicans rather than rule it out of order and then they lost the vote. So then you say what would have happened if he hadn't been willing to hear the objection and then you get to a little more chaos, right? The Republicans were thinking, what are we going to do? They thought maybe we'll pull a John Quincy Adams. We'll have our most senior member take the chair or maybe we will forcibly remove the clerk from the floor and Abraham Lincoln apparently considered that seriously and said he said, let him be carried out on a chip if he undertakes revolutionary proceedings.

1:00:31And he said he'd have troops ready. So I mean on the one hand reassuring teaches you that you do need people in lockstep things tend to be disorganized. They're also tends to be deals made. So someone you might have thought was going to vote with you might get promised something doesn't work out on the other hand. There's no answer to what happens if the deals don't get made what happens if the coup is coming close to success. Would anybody try to take would more dramatic action will you end up with dueling legislatures, you know, one across the street that's happened in states in history, but obviously hasn't happened in Congress yet. You know, it's funny. All of these little anecdotes, Molly are both reassuring on some level, but also a reminder that most of the things that we take bride and as America that makes us quote unquote different or all kind of 52, 48 decisions. There's a lot of like a lot of norms and customs that we've embedded in thanks to 52, 48 advantages, not these are never 80, 20 advantages.

1:01:33No, and I don't know how that makes you feel about democracy doesn't make you feel good or bad, right? I mean the majority, it's the worst form of government except for all the others, right? Like is it that why yeah, is it that why that cliche is a cliche in the first place because you do you sit there and go, huh, the tyranny of the majority could always rear its head here, can it, you know, which is always a scary part of democracy. Molly, this was, I'm so glad you wrote this piece and I'm so glad you did, you did the history. What do you tell your friends and family when they ask you? Are can the, can the mid are the midterm is going to be rigged? What say you now? Oh my gosh, I'm pausing for so long because it's a conversation I argue with my husband like every night over because he's an absolute doomer and he thinks that everything is going to be terrible. I think it is very, very very, very, very important.

1:02:33So we start this before it goes completely black. That was the old John McCain mouth closed. Yeah, no, it's terribly reassuring. Yeah, I think it's really, really hard to steal an election. And so I'm not going to say that there isn't going to be mouthies and attempted. In various points, but I think that the combination of a federalist system banned, you know, the likelihood of the layers. I mean, this makes our, you know, this is a reminder why you don't ever want to federalize our elections, isn't it? That in some ways the cold comfort, I think you and I are taking from this and it's cold comfort is simply. You have to you have to rig too many apparatacies. And if you centralized everything, well, then you wouldn't have to rig multiple apparatacies. You don't have to rig one. Yeah, too big to rig. In other ways. So yeah, I think I would say too big to rig and I think I would also say that I don't want to concede the point that there is one weird trick to stealing democracy.

1:03:35I think it's better to be in the position of that can't happen and to be in that, you know, take that stance both rhetorically and legally. Look, the fact is we can't sort of pervert our system unless you get a majority to go along with it. And then we would ask the question, is the system perverted or did democracy work? Again, I don't know what the next thing feels better. Exactly. Yeah, as Moudall once said, the voters have spoken the bastards. So, you know, you never know. Hey, Molly, this was terrific. I appreciate the time. Yeah, thank you so much for that. Before I let you go, plug LaFera. I just I love what you guys do. It is, you know, you don't do it for free, but because none of this work can be done for free, but let people know where to find your work. Yeah, you can find my work and my colleagues great work about elections, the litigation going on with the Trump administration, good old fashioned national security issues like surveillance issues. I'm obsessed with privacy. You guys and we have none of it anymore and and in many ways you guys do a lot of that coverage as well.

1:04:45Absolutely. And it is all at lawfairmedia.org and there is no paywall on anything. Awesome. Well, there you go. Molly, thanks a lot. Thank you so much. This is an I Heart Podcast. Guaranteed Human.