The Battle Over Ballots | Ep. 60

Today, an emergency appeal was filed in the U.S. Supreme Court challenging the election results in Pennsylvania. This appeal raises serious legal issues, and I believe the court should hear the case on an expedited basis. I do believe that, but I did not write those words. Those words come from our intrepid co-host, Senator Cruz, as we continue this election mess. I'm Michael Knowles. This is Verdict with Ted Cruz. Welcome back to Verdict with Ted Cruz. It is excellent to be here, Senator, with you in person in Washington, D.C. We haven't done this because, what, we had to spend some time with our families or something? It has been too long, and we should apologize to all the great listeners of Verdict, but last week I was home with my family and my kids, and we were eating turkey and relaxing, and so it's good to be back. It is good to be back. We want to thank all of the subscribers who have stuck with us through some of those virtual shows, and thank you to everybody who has listened in. If you haven't subscribed already, please do so on Apple Podcasts, on Spotify, on Google Play, on YouTube. We're still on those platforms for now, although I suppose a little bit later we'll get to the threats that we might face. Senator, first, the election is still dragging on. Some people are saying the president should concede immediately. Some people are saying we should let the legal process play out. Some people are saying Joe Biden is the president-elect. Some people are saying the electors won't vote until December 14th. What is the state of the race and the legal challenges? Well, it's not resolved right now. There are multiple lawsuits all across the country, and those lawsuits need to be resolved. And until then, you know, I have to say the media kind of stamping their feet and insisting it's over now because we say it's over, that's a little weird. We're going to have a clear and definitive result any time you have an election, and the election is contested. You wait until the results of that contest are over. You know, you remember, think back to the Minnesota Senate race between Norm Coleman and Al Franken, where Al Franken litigated, fought, and by hook or by crook managed to get enough votes to beat Norm Coleman. Good choice of words there. You know, when Democrats are filing the lawsuits, everything's hunky-dory that they can challenge it. But in this instance, because it's President Trump and his legal team that's challenging it, the media is treating it like it is the most unimaginable thing we've ever seen for a legal team to bring cases and to try to litigate their claims. And now I know there have been a lot of claims of fraud. There's been some evidence of irregularities, of poll watchers not being able to see the vote count. And this has gone on in various states. We've heard about Arizona. We've heard about Georgia. We've heard about Michigan. I want to focus on Pennsylvania because it just seems as though there are so many narratives going on about fraud or how now it's being stolen in the other direction or whatever. What is the deal in Pennsylvania and what's the status of that claim? Well, let me say two things on this. One, just speaking more broadly, it is 100% clear there was fraud this election cycle. And there's been fraud in prior election cycles. Election fraud is a challenge we deal with and it occurs. The question that we don't know the answer to is whether or not the Trump team is going to be able to present sufficient evidence of fraud to change the outcome. And that's really a question. That's why we have a judicial system. We have a system to resolve those claims. They don't get resolved by wild allegations on Twitter. They don't get resolved by TV pundits screaming at the camera. They get resolved by evidence and witnesses and expert witnesses and facts and the judicial process exists to determine what can be proven and what can't. That hasn't happened yet. I very much hope we see a different outcome in the presidential than we have right now. It's a tough road. I'm sorry to say it is an uphill road to get there because there are multiple states where the outcome needs to flip. And so the president's legal team to change the ultimate outcome needs to prevail not just in one state but in several. That's hard. It's not an easy thing. But he is absolutely entitled to litigate it and I think it is important to get to the bottom of what happened. Now you asked about Pennsylvania in particular. Pennsylvania is the biggest of the states whose outcome is in dispute. And there are serious legal issues at the core of Pennsylvania. One of the problems you've got in Pennsylvania. You've got a Supreme Court that consists of partisan Democrats. Democrats have a 5-2 advantage on the Supreme Court. The Supreme Court of Pennsylvania. Of Pennsylvania. Yes. And they have not been good actors. They have behaved in a nakedly partisan way. So we saw before the election, the Pennsylvania Supreme Court ruled that ballots that were received after Election Day, even potentially ballots that were mailed after Election Day, could be counted. And it was a decision, it was a partisan decision. They were rewriting state election law because they thought it benefited the Democrats. And actually the U.S. Supreme Court, Justice Sam Alito wrote an opinion, he was joined by Justice Thomas and Justice Gorsuch, where he said that the decision of the Supreme Court very likely violated the U.S. Constitution. That was before the election. The U.S. Supreme Court declined to resolve that issue before the election, which they should have. Yeah. Okay. So fast forward to now. The statement you read at the opening of the pod, I wrote yesterday. And I wrote it because I read the Supreme Court pleading that was filed in Pennsylvania. So they've asked the U.S. Supreme Court to take the case. The central claim in this case is a little bit different from the one the Pennsylvania Supreme Court decided before the election. The state of Pennsylvania, the state legislature in March of this year, changed the election law pretty dramatically in Pennsylvania to allow universal mail-in ballot. With no excuse, no basis, anyone can mail in ballots. And so this is distinct from the traditional system of absentee, which is you go, you request, you say, I've got this reason that I need an absentee ballot. This is a new system that they instituted, which is you just get mailed a ballot. Yes. And they did so. Now, what's interesting is the Pennsylvania state constitution explicitly lays out the circumstances in which you can have absentee ballot. And the Pennsylvania state constitution is pretty strict on it. As a general matter, the Pennsylvania constitution requires in-person voting. And then there are a handful of exceptions that are specified, things like military service, things like if you're sick or have a serious disability. And those are written into the constitution. And there's actually a long history in Pennsylvania where the legislature has, multiple times previously, passed laws expanding absentee ballot. And the Pennsylvania Supreme Court struck them down over and over again and said, no, the Pennsylvania constitution says you can't do that. So what happened here? Here, the Pennsylvania legislature rewrote the law in direct contradiction to the Pennsylvania constitution. So this claim that is at the center of this case is arguing that the universal mail-in law that Pennsylvania passed contradicts the constitution of Pennsylvania. Now, a district judge in Pennsylvania agreed with that claim. Okay. It seems clear, doesn't it? And there are two different Pennsylvania Supreme Court cases from decades past clearly holding that, explicitly holding that. The text of the constitution explicitly says that. And so a Pennsylvania district judge said, you're likely to prevail on this claim, that what the legislature did is contrary to the constitution. Pennsylvania Supreme Court rejected that claim. And they rejected it under a legal doctrine called latches. Now, what the heck is latches? Latches is a very common doctrine, and it essentially means you slept on your rights. Another way of putting it is you waited too long. And the Pennsylvania Supreme Court said, look, you guys waited till after the election to bring this case. You should have brought it earlier, so now you can't bring it. You missed your chance. So yesterday morning, I printed out and read the Supreme Court pleading, and I was actually, it was, it raises some very serious legal issues. One of the points they made is they said, look, Pennsylvania Supreme Court said, threw our case out based on latches. But they also have ruled that a candidate lacks standing to challenge an election law before the election. So they put us in a catch-22 where we can't challenge it before the election because we don't have standing, and we can't challenge it after the election because they say we waited too long. It can't be the case that you can never challenge a law that's facially unconstitutional. Right. Now, that's a pretty damn good argument. Yeah. I mean, you read it and you're like, okay, wait a second. That's pretty strong. When the Pennsylvania legislature changed their election law, they also put on the ballot a referendum to amend the constitution in Pennsylvania to allow universal mail-in voting. So that's going to be on the ballot. Here's one of the weird things. When it's on the ballot, whether or not to allow universal mail-in voting, Pennsylvania is going to have it voted on using universal mail-in voting. So I mean, it really is. That's actually a footnote in the Supreme Court pleading that just, I laughed out loud and said, this is frigging nuts. So I wrote a statement and the statement you read, it's about a page long. By the way, on most press releases that I put out, I've got a team, a staff, a very talented staff. You're telling me you don't write every single word of every single press release? That one I did. That one I sat down and hammered it out on the keyboard and tried to explain, look, these issues are serious and the U.S. Supreme Court, I believe, should hear it. Now, there's a very good chance they say no. They declined to hear it. Frankly, if you're a Supreme Court justice and you're trying to protect your own backside, the natural instinct is not to take the case. But the reason I wrote that statement was to say to them, I think the U.S. Supreme Court has a responsibility, the degree of distrust in this election. You actually give the number in the statement. According to Reuters and Ipsos polling, 39 percent of Americans believe, quote, the election was rigged. Almost 40 percent of Americans. That is, the next sentence I think I say in that is, that is not healthy for our democracy. That is. Now I know you really did write the statement. But part of the reason I urged the court to take the case is I think the Supreme Court has a responsibility to try to ensure we're following the law and the Constitution and to take a step to calm the acrimony and the division. Having so many Americans distrust our entire system as rigged, as fake, as bogus, that ain't good. Well, you know, it's funny because your reaction was the same as mine, which is if I were on the court, I sure wouldn't want to take the case. I don't want to be accused of politicizing anything. But it does seem that there is an irony where the court that's so reticent to be seen as political actually seems very, very political. You know, if they if they were to take the case, first of all, it very likely would not change the outcome of the presidential election. But at least for goodness sakes, it would restore some confidence that we're not just all playing partisan politics, that we actually will follow the state constitutions and the law. Well, and and look, let me be candid. The Pennsylvania case, there are challenges also. So there's number one, there is a jurisdictional doctrine at the U.S. Supreme Court, which is the U.S. Supreme Court cannot take an appeal if there is what is called an adequate and independent state grant. In other words, on a question of Pennsylvania state law, the Pennsylvania Supreme Court is the final arbiter. The U.S. Supreme Court doesn't decide issues of state law. And so if a state Supreme Court has decided a case on an issue of state law and that's sufficient, the U.S. Supreme Court can't take it. And so a tough question in this case is what is the federal question that gives the U.S. Supreme Court jurisdiction? Well, you know, actually, from your own state, I think we'd mentioned this in a prior podcast. There was a Senate race in 1948 when Lyndon Johnson stole an election and it went all the way up to the Supreme Court. And the Supreme Court said, we don't have jurisdiction here. We don't want to settle. We don't want to interfere in the state election. And that was it. And they gave they gave Johnson the seat. Now, look, there are obvious counterpoints, Bush versus Gore. And as you know, I was part of the legal team litigating that. We've talked on the podcast before about my book, One Vote Away, where I talk at great length about Bush versus Gore, about the inside strategy there. Likewise, the Florida Supreme Court twice issued rulings. That was also a partisan Democratic court. They were lawless rulings. And the U.S. Supreme Court and Bush versus Gore stepped in and ultimately resolved the case and they did the right thing. A challenge here is even if the Trump team wins in Pennsylvania, that alone is not enough to switch the outcome. And so that that may well that will certainly be a basis that encourages the justices not to take the case is is either way the outcome's the same. It's why I wrote what I did that listen, this dynamic of so many Americans not having faith in the integrity of our democratic system, that that's a real problem. And I think the Supreme Court has a responsibility to take care of the claims and decide them pursuant to the law. Well, there are other issues in other states. And we do have to touch on not just the presidential race, but and not just Pennsylvania, but Georgia and specifically the Georgia Senate races, because whatever happens with the presidential race there, you've got these runoff races. This will decide who controls the Senate. You laid out the Democrats plan for if they do take control of the Senate and the White House. It's pretty radical stuff. It could end the Republican Party in many ways as a national party. What is the state of play there? It's David Perdue and Kelly Loeffler are the Republicans and the incumbents. You sit next to David Perdue in the Senate. So you've got a very close view of all of this. How do things stand in Georgia? So where we are right now in the Senate is Republicans have a 52-48 majority. But two of those seats, the Georgia seats, there's a runoff on January 5th. If we lose them both, the Senate becomes 50-50. If we win them both, we stay at 52-48. And 50-50, by the way, if if Joe Biden does ascend to the presidency, the tiebreaker then is Kamala Harris. So the Democrats have it. So it means if we lose them both and Joe Biden is president, it means Chuck Schumer is the majority. And I got to say, in our lifetimes, I don't believe there has been a Senate race as consequential as the Georgia Senate race on January 5th because the two outcomes are radically different. World number one, the Democrats win. If we have a Biden-Schumer-Pelosi government, there's no check on the radicals in the Democratic Party. Here's what I believe will happen with a Biden-Schumer-Pelosi government. I think they'll end the filibuster, which means there is no ability of the minority to stop the most radical policy proposals they put forward. I think they will pass a massive tax increase, not just repealing the Trump tax cut, but massively increasing taxes. I think they will pass all or major components of the Green New Deal, which will be absolutely crushing the small businesses and jobs. I think they will grant amnesty to every single illegal alien in America and try to make them voters as quickly as possible. But Biden has more or less said that already. And I think they will add two new states to the union. They will add the District of Columbia and Puerto Rico because they believe they'll elect four Democratic senators immediately, which means we could start January with 50 Democratic senators and end the year with 54. And this is all about power. This is about locking in their power. And I believe if we lose these two Georgia seats, I believe that the Democrats will pack the U.S. Supreme Court. They'll put on four radical judicial actions. So you think that the remain—there's really only one even sort of quasi-moderate Democrat left, Joe Manchin from West Virginia. When Joe Manchin says, I'm going to vote against all the radical stuff, I'm going to be the stop against AOC, you think that's just a lot of talk? I don't believe him. I think what Joe is doing is politicking in Georgia. He's trying to convince Georgians, vote for the Democrats. Listen, Joe is someone I've served with for eight years now. Joe is a very—Manchin is a very nice guy. He's a very affable guy. Nobody dislikes Joe. It's hard to dislike him. He's got—he keeps a boat on the Potomac and he invites senators to go out, you know, go out on like a sunset cruise in the Potomac, which is fun to do. See, look, I've gone out with him and hung out with him. Joe, when I was first elected to the Senate, one of my colleagues said to me, he said, Joe is like a purple unicorn. He will always, always be with you right up until the moment you need him. And I can tell you in eight years in the Senate, I cannot think of a single issue where Joe Manchin was the deciding vote. He will occasionally vote with Republicans when his vote doesn't matter. But when push comes to shove, I don't believe he will stand up to Chuck Schumer. Now, what I could see him doing, I think he'll vote with Schumer to end the filibuster. And he'll vote with Schumer to add D.C. and Puerto Rico. And then if they have 54 Democrats, maybe he votes against packing the court. After ensuring that they can win. And they lock in this majority. And it's worth pointing out, too, the opponents here are pretty radical people. You have John Ossoff, who, if that name is familiar to any of the listeners, it's because Hollywood propped him up to run for Congress just a few years ago. And he lost that race. But he was he was a sort of Hollywood darling. He's just come out and said, we need to basically empower the bureaucracy to make all of the decisions for us and basically have government by experts so much for we the people. And then the other candidate in this race, Raphael Warnock, is as radical as they come. He is openly embraced socialism. He's said that one cannot serve God and be in the United States military, for goodness sakes. This guy is forget we talk about AOC or whoever. This guy is maybe the most radical politician I've seen in our in our national discourse. He is quite radical. He is a preacher in the mold of Jeremiah Wright. And in fact, his former church welcomed and embraced Fidel Castro. The Democratic Party, particularly in Georgia, has decided to go far, far left. But to be honest, I actually don't think even though these candidates are extreme, in some ways it doesn't even matter. The Democrats are disciplined. Look, they're collectivists. They believe in statism. They believe in party line. Some of them are Marxist. They obey orders. Yeah, that's I was talking with talking today with Lamar Alexander. Lamar Alexander is retiring. He gave his farewell speech today. And so I was talking with Lamar on the Senate floor and we were talking about the challenge that that the Democrats, they always have message discipline. They're always together on the Republican side for good or for ill. We've got a bunch of individualists. We've got a party with Rand Paul. And Susan Collins. That's a lot of diversity. And we're running all sorts of different crazy directions. I mean, it's it's we don't follow orders, right? There are virtues to that. But on the Democratic side, if they get a majority. Chuck Schumer, Pelosi will dictate the agenda in Congress, which means AOC and Elizabeth Warren and Bernie Sanders will dictate the agenda. In particular, because Schumer will be terrified of being primaried from the left by AOC. Yeah, right. I think this is a good you remember you had warned about this point a while ago. Yeah. And I sort of thought, oh, no, I don't know. He'll stand up. No, there's no incentive for him to you know, if this is a unified government, the left is going to be calling the shots. Well, and Schumer is a political animal through and through. That's just who he is. He lives for politics. And he's seen Democrat after Democrat beaten from the left in primaries. I don't think there will be any appetite to stand up to the demands of the far left. Now, with a Republican majority, if we win in Georgia. It's not all going to be, you know, honey and roses. If we win, we will have a narrow Republican majority. If we have a Biden presidency. Look, there will be some bad things that Republicans join with Democrats to pass that I will fight hard against. Yeah. And we'll have podcasts with me raving about it. But the reason majority matters so much. Is ball control. So in the majority, you're the you're the chairman of every committee. And you can control what bills are voted on and what are not. So I can tell you with a 100 percent certainty that if there's a Republican majority in the Senate, we will not see a massive tax increase. I can tell you with a 100 percent certainty, D.C. will not become a state. I can tell you with a 100 percent certainty, the U.S. Supreme Court will not be packed. All of those. If we have the majority, they ain't happening. Will there be some other bad things? Will there be some trillion dollar spending bills that are horrific and drive up the debt? Yes. Will there be some terrible immigration deal? Probably. I'll fight hard against those. But you know what? I'd rather be in those fights where I'm trying to fight against policies that are bad versus fundamental permanent structural taking the U.S. Supreme Court from nine justices to 13. That does damage to the Constitution, not just for a year, but but forever. Right. Or increasing the number of senators or the makeup. Absolutely. It shows you what's on the ballot in Georgia. I know that there are some people who feel a bit demoralized by the election and by people not taking certain examples of fraud seriously. I get that. I actually understand the demoralization. But one thing that you've done that I've been so pleased to see is keeping up the fight and keeping up the fight in a lot of different realms. You know, going to the Supreme Court and saying, you've got to hear this Pennsylvania case. And also, while you're doing that, make sure the Republicans win in Georgia. President Trump has said that also. He said, got to go out there and vote for for Loeffler and for Perdue. It's a very important battle. There's not just one phase. There's not just one stage of this battle. It's on many fronts. And we could look up. And if we lost the Senate, we're in a very bad situation. Now, that's exactly right. So Georgia, I'm going to be going to Georgia. I'm going to be campaigning on the ground in December and campaigning on the ground in January. I'm working with the Club for Growth that has launched a plan to knock on one million doors in Georgia. It's entirely a turnout election, getting conservatives. We're going to do a bus tour where the plan is to hit all of the biggest counties in Georgia where the population is. And I'm going to be there campaigning on the ground to say, you've got to come out and you've got to show up. And I'm all in because the damage that comes from a Schumer majority, I don't want to see what comes from that. Right. Before we go, we've got to get to a mailbag question. Want to thank, as always, the subscribers who send these in. Some of them, all of them, excellent questions. Some of them pretty funny as well. Let's take a look at Daniel. I think this actually ties in very well to what we're talking about. Dear Senator and Michael, what is the best way to counter accusations of conspiracy theorism when discussing the ongoing lawsuits and the associated indicia of voting irregularity and election impropriety? Because the media won't cover them. They seem fringe and made up ideas to Democrats and liberals and leftists. Hashtag verdict. We hear this all the time. Anytime you contradict the media, they call you a conspiracy theorist. Well, that's because there are 12 media guys who are planning a conspiracy and they control the world. It is. By the way, that's a joke for whoever. They're going to play that game. I know. We're now conspiracy theorists. Look, they're going to say that. And by the way, I read Twitter. I read all of the accusations. I don't know what's true and what's not. I mean, some of them sound pretty far out. Others sound quite plausible. Others are somewhere in the middle. I think the best answer is, you know what? In the United States, we have a system to resolve those claims. So the answer is not going to be which claim got the most retweets. It's not decided by likes. We've got courts that hear evidence. The only thing that is going to impact the outcome of these elections is whether the Trump campaign can present sufficient evidence to build a factual case and convince a court. Some of the more far-reaching theories, I don't know if there's a factual basis for them or not. I hope the lawyers present them. I hope they present it effectively. I hope they convince the court. We were litigating Bush versus Gore. We couldn't just assert things. We had to go and prevail in court. And so saying that the system should work, saying that our legal system should operate the way the Constitution designed it, that's not a conspiracy theory. That's actually believing in rule of law. And we'll get a determination as to what the evidence shows. Are those determinations perfect? No. There are things that go on in the world for which there isn't evidence. But it's the best system. It reminds me of what Churchill said about democracy. It's the worst form of government except for every other. Our judicial system has challenges, but by and large, it's a pretty effective vehicle for determining the facts and weighing and considering evidence. That is not a conspiracy theory. That is a constitutional theory. And I think probably the people who are attacking us for following the process, they probably hate the constitutional theories much more than the conspiracy ones. I will have to leave it there, but we will address even more of those excellent questions as this process is certainly not going to be resolved today. We'll do it next time. I'm Michael Knowles. This is Verdict with Ted Cruz.