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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good Monday morning, everyone. Today, we'll hear a short excerpt from the gracious concession speech in the presidential election, the 2008 presidential election. John McCain's former chief of staff, Mark Salter will join us. He wrote McCain's 2008 concession and he wants to tell the story of how a good concession speech comes to be. Also today Moderna becomes the second company to announce a 90% effectiveness rate in its vaccine trials. We will compare it to Pfizer's and explain the logistics and the politics of who will have access first and those decisions are now upon us.

If you're a parent of a New York City public school student you already know that the schools remain open today as the city's average coronavirus positivity rate for the last week remain below 3%, but the mayor and chancellor are having a news conference. I think it's right now. At some time during our show this morning and our education reporter, Jessica Gould will be on when it's over to tell us if the rules are changing yet again, but here's where we start the week.

What the disconnect there is right now between the actual news people are getting from the post-election lawsuits filed by the Trump campaign and the messages from the campaign itself. On the lawsuit front as The Washington Post reports, not a single vote has been invalidated in any state. Some breaking news on that front last night, according to The Post, the Trump campaign withdrew one of its most aggressive legal claims that 680,000 votes should be thrown out in Pennsylvania because election observers couldn't see the ballots up close enough. The campaign reserves the right to file that claim. Again, The Post tells us, but for now, it's been scrapped and maybe permanently.

That would be huge because the election observers issue was the only claim big enough to change the outcome in Pennsylvania. That's with 680,000 votes, that's such a large number of votes that it could have actually made a difference. Now, the Pennsylvania outcome is typical of how it's going so far. Forgive me while I flip through my notes here because there's a Washington Post article that I want to refer to, that I will find in a minute, but that basically goes state by state. It goes state by state and shows how badly these are going.

Yet at the same time, I'm also watching the Trump campaign's mailing list. From Saturday morning through this morning, they sent out 27 fundraising emails. For example, this one. Subject line, "Rigged". Inside there was no claim of how the election was rigged, just a picture of the President and the words, "It's time to fight back. Can president Trump count on you?" Then it has dollar amounts you can click on to donate.

Another one: Subject line, "I'm not going anywhere". Inside, something that reads like a Borat parody of a dictator. It says, "One thing has become clear these last few days, I am the American people's all-time favorite president." It actually says that. Followed by, They rigged the election," and another ask for money. 27 of those to the list that I'm on since Saturday morning.

Even if the lawsuits don't show any proof of fraud, even if not one vote is invalidated in any state, there is something the campaign is still aiming for as a strategy to overturn the counted results. The Washington Post framed it as a question the other day, basically, "Can the Trump campaign steal the election through state legislatures?" The path to flipping the result that way got narrower over the weekend as Georgia and Arizona both got called for Biden by the networks that had seen them as too close to call, maybe you missed that. It would take flipping multiple state legislatures, at least three, to overturn the election in that way.

That extreme politicization of the electoral college that raid on the electors is the biggest remaining threat to the actual outcome becoming the certified outcome. The writer of that article, Washington Post correspondent Amber Phillips joins us now. She also writes The Post's daily email newsletter, The 5-Minute Fix. Amber, always great to have you welcome back to WNYC.

Amber Phillips: Hi, Brian, thanks for having me.

Brian: Let's start on the news that people may have missed because it broke late in the day on Friday, the final uncalled states got called by The Associated Press and the networks, North Carolina for Trump after being too close to call all the time leading up to that, Arizona and Georgia for Biden. Does that mean barring lawsuits or a state legislature tricks that there is now a final electoral vote count?

Amber: That's right. Yes, it does. It means Joe Biden gets this exact same number of electoral votes that President Trump won in 2016, 306, which the president at the time rightly claimed was a really big electoral college margin over here. Like Clinton, Biden has now completely flipped that and he's done it by flipping three states that Democrats wanted back in their column really badly, Michigan, Wisconsin, Pennsylvania, and then Arizona and Georgia, two states the Democrats have been trying recently especially to turn blue and Joe Biden did it for them.

Brian: Same as Trump won with in 2016, 306 to 232. We note that Biden took back all three so-called blue wall states that were the focus in 2016, of so much angst on the democratic side, Michigan, Wisconsin, and Pennsylvania. Plus he took the historically red states of Arizona and Georgia. It turns out to be a pretty impressive win, having flipped five major states, all of them high population states, that went for Trump the last time around.

Amber: Yes, that's right. Democrats feel he did it by expanding his coalition and the party's coalition. You look in Georgia, a lot of BLack voters came out for Biden, just the same way they helped him win his primary earlier this year in another neighboring state of South Carolina. You look in Arizona, there were specific groups of Native American and Hispanic and Latino voters who came out for Biden in big ways, young voters as well. Then up in the North, you had more white blue-collar voters who supported Biden at least in higher numbers than they did for Hillary Clinton.

Brian: Trump has to rely on the courts or on the state legislatures and that extreme scenario, if he's going to try to flip the election results as he still insists, he is trying to do. Now I found that Washington Post article that I misplaced a minute ago. I'm going to read from this as it's pretty interesting and in some parts entertaining, from your colleagues, David Fahrenthold, Emma Brown and Hannah Knowles and the headline was Trump lost at the ballot box. His legal challenges aren't going any better.

It says, "Rather than revealing widespread, or even isolated fraud, the effort by Trump's legal team in five key states has so far done the opposite. It's affirmed the integrity of the election that Trump lost. Again, not a single vote has been overturned. Here are a couple of examples. It says, "Some moments veered into the absurd, as the president’s lawyers tried — and failed — to use Trump’s reality-bending logic on baffled, unbending judges. "Are your observers in the counting room?" Judge Paul Diamond asked Trump’s lawyers in Pennsylvania at one point, in a case where Trump was seeking to stop the vote count in Philadelphia.

In that case, Trump’s suit depended on the answer being "No. the observers are not in the counting room." The logic for stopping the vote count was that GOP observers were not being allowed to watch it. But the actual answer was "yes." The observers were there. So Trump's lawyer tried an answer that wasn't yes or no. "There's a nonzero number of people in the room," he responded. That did not work."

Then it says, "The mismatch between Trump's rhetoric about voter fraud, and his ability to prove it, was particularly stark in Georgia." I love this story. "There, Trump's campaign said this week that it had found the clearest possible evidence of fraud, a dead man had voted. "Someone used the identity of James Blalock of Covington, Georgia to cast a ballot in last week's selection, even though Blalock died in 2006," the campaign posted on its website, along with a screenshot of Blalock's obituary.

It added, "These victims of voter fraud deserve justice."

Trump's campaign had one thing right. James Blaylock is dead. But he wasn't the one who voted. It was Mrs. James Blalock, his 96-year-old widow. Mrs. Blalock, whose first name is Agnes, had chosen to be listed on the voter rolls under her husband's name. That is Mrs. James Blalock, which is now an uncommon practice. but is legal." It goes on from there to other absurdities and the count of something like 20 lawsuits, which have all already failed. There are, however, a couple still active but that's quite a record in court, Amber, and those are quite a few little stories there.

Amber: Yes, that's right. My colleagues point out, as you did at the top of your show, Brian, all these legal challenges in addition to fizzling very quickly under the initial scrutiny of a judge, have yet to overturn a single vote being cast. I think it's increasingly clear to Republicans supporting the President, yes, I say Republican officials, but not necessarily their present space, that these aren't going anywhere. The President does not have an avenue to overturn this election results to the courts. There wasn't any widespread fraud enough to change it by tens of thousands of thousands of votes in several states.

Brian: Let's look at this last-ditch effort aimed at state legislatures. You remind us in your article that the constitution says it is states that get to decide how to allocate their electors. I'm going to read the exact language for people who haven't heard it. From article two, section one, clause two of my pocket constitution. It says, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress"

I'm going to read the first part of that again because it's a key part, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Amber, that says nothing about the popular vote directing the number of electors. It says each state shall appoint that number in such a matter as the legislature may direct. How much leeway does the Republican legislature have to just seize that power and ignore the popular vote if it went for the Democrat?

Amber: Yes. The state can give electoral votes to a candidate based on the number of cows on the side of the road if they wanted to agree on that, that's like an extreme reading of what the constitution says about state powers, but I use it to emphasize what you just did. States can decide how to set up the election, but to answer your question more directly, a wide range of legal experts I've talked to are part of election crisis task force say they have no power legally to give electors to a different candidate based on something other than the popular vote after the election.

Before the election, Republican legislatures in states like Wisconsin and Michigan and Pennsylvania wanted to say President Trump gets our electors, no matter what and they managed to get that passed into law, which there are Democratic governors there so that would be an issue, but let's say they did that. Okay. Then, President Trump gets those state's electors, no matter what.

After the election, you can't change things. The expectation of voters going to the polls was, this was going to be based on the popular vote in that state and so legal experts I've spoke to say this-- if a legislature were to suddenly change this, and they are getting pressure in those three states specifically, by the President has mentioned this, sitting Republican governor in Florida talked about this, this weekend, there are grassroots pressuring these states, from Republican County chairs for legislators to consider this.

f they were to do it and just say, "Okay there's a lot of chaos. We're not really sure who won. We have the authority to change the votes or the electoral votes and we say, they go to Trump, " that would almost certainly face immediate legal challenges is my understanding.

Brian: At very least legal challenges, and probably a popular revolt at a level that it's hard to imagine at this moment how far it would go, but you can imagine theoretically how far it would go. Here's the mathematical bar. You referred to three states just now. Now that Biden has 306 electoral votes, it would take probably three states at least to pull off this gimmick in order to make it work. Pennsylvania has 20 electoral votes, that would bring it down to 286, Georgia and Michigan each have 16.

Either of those would still leave Biden with the necessary 270. It would take a third state. Arizona has 11, Wisconsin has 10, or Nevada with its 6 to actually pull this off. That's how high a bar this last-ditch effort would have to cross. Why did the Trump campaign send out 27 fundraising emails since Saturday claiming the election was rigged and they can still win reelection?

Amber: Well, it gets his base going. I live in Washington D.C. and this weekend there was a big crowd, not near a million, like Trump's spokeswoman, Kayleigh McEnany tried to claim on Twitter, but a big crowd here, claiming they support the President and that the election was stolen and there's a significant portion of his base that is willing to believe this, despite the facts and so talking about this, ramping it up, falsely claiming all this stuff gets his base going and keeps Trump in the center of the political universe, even as he's leaving or is supposed to leave in the next couple of weeks.

Brian: That particular story from last night about Pennsylvania. I don't know if you're in the weeds on this enough to have a take on it, but The Washington Post article that was filed after 11 o'clock last night referred to the withdrawal, of what is really the biggest claim in any of these suits, that because the election observers allegedly can't see the ballots up close in places in Pennsylvania, that more than 600,000 votes should just be invalidated.

That, of course, would make the election result inconclusive and the state legislature in Pennsylvania would be on slightly more solid ground, but the Trump campaign withdrew that claim last night even though it's technically still in the introduction to the lawsuit, they withdrew the part that actually makes the argument that since the electors weren't close enough allegedly, that 600,000 plus votes should be thrown out. They did reserve the right to put it back in. There's supposed to be a hearing in this case in court in Pennsylvania tomorrow. I don't know if this is more confusing than clarifying folks, but Amber, can you put any more clarity on it than that?

Amber: Yes, I can. This was the central stilt by which the President himself was tweeting about this numerous times, including literally a day before the Trump campaign dropped this fraud lawsuit. This was the central stilt that they had lifted up all of their voter fraud claims on. It was specifically focused on Pennsylvania, the biggest electoral prize of these swing States and like you said, Brian, it was, it was a leap of logic to say, "We weren't allowed to watch the counting of the votes. Therefore, the votes are fraudulent. There was Democratic machinations, Maybe they all got counted for Biden. We don't know, we weren't in the room we don't know."

Brian: Couldn't be determined.

Amber: Yes, couldn't be determined so throw them out. Trump actually tweeted, "Therefore I won the great state of Pennsylvania." I think it was Friday or Saturday night. These massive leaps of logic that when it came time to put that into legal [unintelligible 00:17:55] and for lawyers to stand before a court and argue this, they couldn't do it. They realized they had to take it out.

That's in part, because these Republican observers were in the room, as you had just outlined. They weren't as close as they would like and there's been-- The top Republican election official in Philadelphia has said, "Yes, we had to boot, I think it was Corey Lewandowski, a big Trump ally, one of his first campaign managers, out of the room because he wasn't following COVID requirements." It's just something out of nothing, is what we're seeing this boil down to and it's a massive problem for the Trump campaign, because this specific instance of claiming that Republican officials were kept out of the watching Philly vote-counting was literally what they were hoisting their flag of voter fraud on.

Brian: Why did they withdraw the claim rather than throw it against the wall and see what sticks and let a judge throw it out, or maybe the judge would accept it?

Amber: I'm not sure the incident. That's a very good question, especially since you have the President and his top lawyer, Rudy Giuliani, pushing this over and over and over again, but their claims are false. My understanding would be, they couldn't argue this with a straight face in front of judges. It's hard to tell, but maybe this is some attempt to try to save this lawsuit, which I think is boiling down to the last major push that they're going to be able to make in the courts.

Brian: Listeners, we can take a few phone calls. If you have questions for Washington Post correspondent, Amber Phillips, who also writes the daily email newsletter called "The 5-Minute Fix" on politics for their politics site, The Fix. 646-435-7280, 646-435-7280. As we talked about the latest electoral vote count based on the final states having been called since Friday show and the resistance to it in court, in state legislatures, these last-stage efforts that the Trump campaign is still pursuing. 646-435-7280, 646-435-7280.

I guess this sliver of doubt about whether the state legislators might actually pull this off, what your headline calls "stealing the election." It is so ironic, they're trying to steal the election with a false claim that the election was stolen by the other side. I think that's a statement of fact, not opinion. The sliver of doubt comes from comments such as this in The Atlantic by Pennsylvania State Senate majority leader, Republican Jake Corman, who said, "We don't want to go down that road, but we understand where the law takes us, we'll follow the law." How worried are your Democratic sources that these swing state legislators in Republican hands could be so brazen as to try that?

Amber: They're nervous, for sure. Especially, like I said, when this idea is getting repeated at the highest levels of Republican politics. My White House colleagues have reported the President Trump throws this out to his advisors, "Well, could the state legislators change that for me?" Then you have a sitting Republican governor in Florida this weekend, Ron DeSantis opening up as a possibility.

They're nervous. It's really tough to read exactly what might be going on in the minds of these Republican leaders in these big states. Because in Michigan and Pennsylvania, specifically, they've said, we are not going to do that, we're not going to change how electoral votes get assigned after the election. But there's been little cracks of openings for them to perhaps leave it a little bit more open than Democrats would like.

Specifically, for example, like that comment in The Atlantic, you just read, which is before the election happened, but afterward, it was Pennsylvania lawmakers who actually wrote an op-ed and said, "We're not going to do this." They held a press conference as well, and they said, "Under normal circumstances, we have absolutely no opening to try to do this." A lot of Democrats ears perked up when they heard, "Under normal circumstances? Here you guys are, your Party are trying to create this swirl of extremely abnormal circumstances around an election. It's not proving to be true at all, but you're trying to create the swirl. Is that an opening you could use?"

It's hard to say what is going on in the minds of these Republican state lawmakers. I think it would be just a historically massive undermining of American votes if they were to take this on. That being said, they definitely are getting pressure from the grassroots and from the top to consider it.

Brian: Right, and it's a long shot. It's an extreme scenario as both of us have been saying, but whoever thought the majority of the Republicans in the US Senate, and the majority of Republicans in the land would back Trump on every authoritarian leaning play the way they have, so who knows what politics might allow? Did you see the Morning Consult poll last week that found 70% of Republicans do not think the election was free and fair?

Amber: Wow, I've seen similar polls that, like 8 in 10 of Trump supporters feel like the election was stolen. We heard from Republican strategists at The Washington Post who said, "This is why the Senate is doing what they're doing." Which I agree with you, Brian it's just jaw-dropping, to back the President on this. They said, "Our voters believe it, and we have two Senate races in Georgia. We got to win a couple of weeks, and we cannot not back the President on this."

Brian: Keep everybody fired up. There's no evidence that it wasn't free and fair, as established in about 20 court cases so far since Election Day as we've been detailing, but because of the extreme politics of the country at this time, and the political willingness to do almost anything, well, that's why we're keeping an eye on it just in case. Alexander in Queens, you're on w NYC with Amber Phillips from The Washington Post. Hi, Alexander?

Alexander: Good morning. Thank you for having me. I just have a question for you and your guest. I wonder if given the baselessness of these claims, why Democrats, including President-elect Biden, aren't pushing harder in the court of public opinion to make the case that the real effort to steal the election is being made now retroactively by Trump and his allies. I'm sure there's a reason for that, but I'd like to hear what it is. Thank you very much.

Brian: Thank you very much. I have a thought about Biden, and you're closer to it than I am, Amber. Obviously, we want to hear yours. My thought is that Biden is playing this just right and that some other Democrats are getting too exercised publicly about it. The President has the right to go to court. Any candidate who lost an election has the right to challenge the results in court until the certification date, which in this case is December 8th, and so, he has that rate.

I think that Biden would risk sounding like, "You doth protest too much." Why are you trying to tamp down these lawsuits? That's his legal right. If they're as unfounded as you say, as they're so far proving to be, then let them play out. You said be patient in the first place because all the votes would not be finalized on election night. We only have to be patient a little bit more, a couple of weeks, and then this will [unintelligible 00:26:19] out in court of its own lack of merit, and then there it will be. If you jump up and say, "Stop going to court. Stop asking for recounts," all this stuff, then it sounds like you have something to hide when it doesn't look like they really do.

Amber: Yes, I think that's right. Our reporting has been that Biden doesn't want to get down in the mud on this. Some of his advisors are looking at legal challenges to challenge these legal challenges, to say, "Just stop, we won the election, guys." Biden has said or indicated that he's not supportive of that, and just is trying to act like president. That being said, to your point, Brian, about a split in the Democratic Party about how hard to attack Republicans on this, I think there's a difference between the president-elect and his team, and Senate Democrats who are desperately trying to fight to have essentially what would be a one-vote majority in the Senate if they win these two Georgia special elections on January 5th.

These are turnout elections. Just the same way Republicans can't risk ditching Trump supporters or having them not excited about going out to the election. They can't say Trump lost. Democrats really want to talk about the egregiousness of this, of the president trying to steal an election.

Brian: Julie in Manhatten wants to ask about all of these Trump campaign fundraising emails that are going out claiming that he won the election and the election was rigged. I mentioned at the top of the show, 27 of them to the list that I'm on obviously, as a journalist, I'm not on any campaign's list of supporters as a supporter. That would be against our news department's professional standards, obviously, but I sign up for various ones so that I see what the supporters are getting.

This list that I'm on has sent 27 Trump campaign fundraising emails between Saturday morning, and about an hour ago. Julie in Manhattan has a thought about this. Julie, you're on WNYC, hello?

Julie: Hi, good morning. Back in 2016, when I was canvassing for Hillary Clinton in Bethlehem, I wanted to learn the talking points that are of the other side. I donated a penny to the Trump campaign, and they took $1 out of my bank account, which was a good sign of what was to come. They've been texting me ever since. I'm just curious over four years of receiving text, and they just exponentially multiplied in the past few weeks, and they're all about fundraising and the mob and, increasingly inflammatory language.

Of course, as you've noted, when you go to the link, it talks about 60% goes to retire campaign debt, some of it goes to the RNC, some of it goes to PAC. I imagine a lot of these lawsuits are really about just buying time to rake in more and more money. I'm curious if there's ever any oversight about what the texts say from the campaign in terms of it incrementally went up from donate money to 100% match, 200% match, and like a week before election day got to 1,000% match. Does anybody check to see that that happens? Does anybody check to see that the trips they offer if you donate money happen? Does anybody ever try to tamp down on this propaganda that they send out?

Brian: It's a good question. I even was wondering, Julie, if some of these claims might be illegal in some way. If they're sending out claims and fundraising emails that say that Trump really won or that the election was rigged which has not been shown in any court case to have been and they're trying to raise money on false premises. Is there a law against that? Amber, to her question or to mine, do you have any idea?

Amber: Julie, I don't. I don't know the answer to that. I'm trying to compare it to how we have a mechanism in the federal government to police against false ads. "This toothpaste will whiten your teeth 1000% with one toothbrush." You can't say that it's not true. I don't know that and I haven't heard of one but I'm also not a campaign finance reporter of a mechanism to police that hyperbole in fundraising.

Brian: Julie, thank you. Some of the claims-- It's interesting to me that some of them go out, in fact, I didn't even count these in my 27 because I didn't search it that way, some of them come from the name of Mike Pence and those are a little bit subtler. Let's see, I have one of the Pence one's here. Subject line, "This isn't over." This isn't over at least is accurate as far as it goes because the lawsuits are in progress. That's not the same as saying "Rigged."

I don't know, maybe there's a Pence strategy here that's got to be separate from the Trump strategy a little bit because Trump has nothing left to lose politically and it fires up his base to help him start whatever his next business will be or even run again in 2024. Pence also wants to run in 2024 and he probably wants to run as, "I agree with a lot of Trump's policies but I'm not that guy."

Amber: These two remarkable news conferences the President had at the White House over the election week where he claimed the election was stolen without any evidence and didn't take any questions and Pence wasn't there. Which is very notable.

Brian: Mike in Rockaway, you're on WNYC with Amber Philips from The Washington Post. Hi, Mike.

Mike: Hey, Brian, thanks for taking my call. I have a question about how we proceed in terms of getting to December and those critical dates. What happens? Take me through the process. Legally, what happens to this whole thing?

Brian: That's a great question. Let's end on this, Amber, because there are some dates they call it December 8th, the Safe Harbor date for the electors to be certified. What does Safe Harbor date mean?

Amber: Yes, it means if there are any disputes over the slate of the electors like Republicans in Pennsylvania say, "No, they go to Trump", they got to be resolved from within the states. That would mean the Democratic governor and Republican state legislature have to fight over that. Then, if there's any controversy about it, we'd go to Congress where legal experts tell me it is just a mess, for what the law says, which is written more than 100 years ago, Congress needs to do to decide. It would likely essentially come down to the governor's certifying results. Many of these states that are in question it a Democratic governor.

Anyways, so by December 8th, the states have to certify the slate of electors. By December 8th, we'll know whether Pennsylvania, Michigan, or Wisconsin Republicans do try to what I would say is steal the election and the electors from Joe Biden. Then on December 14th, the electors meet in their states and they vote. The Supreme court has said that "Yes, you can as an elector be what's called a faithless elector. You can vote for Joe Biden, even though you're from Montana and your state electors should go to President Trump but your state can punish you for it." That being said, there aren't a ton of punishments especially not harsh ones at seats set up. It's mostly on the honor system.

Then by December 23rd, all the votes for those electoral colleges which meet in their specific states, I'm not sure how that's going to get done in a pandemic, go to Congress. Congress certifies them, which they do at every election but we don't normally need to think or hear about that because it's just like a totally normal thing. Then if there's still any issue about a slate of electors coming up, I'm not quite sure how it would come up after that Safe Harbor deadline, but legal experts say like, "Okay, maybe just watch for if there's still any issues. Congress would not really know what to do. It could be a disaster by that January 6th date for Congress to certify results." Then January 20th is Inauguration.

Brian: By the way, a little conversation has broken out on our Twitter feed where one person wrote, "Wouldn't Trump emails be subject to the federal trade commission false advertising claims?" Then another listener saw that and posted, "I'm pretty sure that the FTC false ad regs don't apply to political campaign ads." That little piece unresolved but a lot hopefully clarified by our clarifier and chief this morning Amber Phillips from The Washington Post, who also writes their daily politics email newsletter called The 5-Minute Fix. Amber, we always appreciate it. Thanks a lot.

Amber: Thank you.

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