Lawrence Lessig, Matthew Seligman & Robin Marty

Women's Center, Robin Marty. Welcome back to Fast Politics, Robin Marty, thank.

none of the doctors will work with us. They have all said no. So what happens is we provide prenatal care for a patient, and we do this because we let people in immediately, we verify their pregnancy, which is what they need to do in order to get onto insurance or Medicaid. We see these patients until the point that they get their insurance and we see them for free, and then the point that they get insured, they can start to look for another doctor because no doctor will

see them until they have insurance. But doctors don't want to see Medicaid patients, they don't want to see uninsured patients, and so we can't get these patients in anywhere. So often we're finding that our patients can't get doctors. Will go into the hospital in what is known as an unattached patient and so what that means is they show up,

they can't pre register for the hospital. They can't do anything like if they need non stress tests, which is something that you do once a week, were diabetic.

we can't do any of these things. All we can do is after every appointment, we give the patient her paperwork so that she can take that file with her and then she is allowed to show up in the hospital when she's in the labor And one of the things that were really terrified by is they're going in there with no ally, nobody to help make sure the doctor is listening to them, and we don't know how

the doctors treat them. Because we know how the doctor is treating our staff and saying that we are no good, right, not great, we don't know answers over to the patients. And we also know that this hospital is not kind to black women, and almost all of our patients are black. So now we have been able to hire a doula onto staff, which is such a huge blessing and something that I've been trying to do, trying to get the money together for over a year now, and we finally

were able to get it. She'll be starting next year and we will be able to offer adula every patient who stays with us, and she will be able to accompany them into the hospital.

Here we are with no legal abortion, with the rising maternal mortality issues, and you still cannot access contraception in the state of Alabama if you don't have insurance or if you are on Medicaid unless you go to a county health department. These are people who do not have primary care physicians, so they cannot get it that way. There is one Planned Parenthood clinic left in the entire state.

The others have closed, and so there's Planned Parenthood and there's US and we are the places where a person can go to be able to get this free or no cost birth control. And so when you are not allowing people to be able to access contraception, one of the reasons being, of course, that Medicaid has not been expanded yet. But there are a myridate of other ways that they could make this accessible. They could provide grants to different cities. They could tap individual doctors and ask

them to do it. There are all these ways that they could expand Title ten. But instead our state still has the rule that says Title ten funding, the millions of dollars that we get from the federal government can only be dispersed via a county health department, even though the county health departments are understaffed, often closed, and so the weight is many months.

still waiting to go through the courts. It was supposed to have a hearing end of October and it got postponed and we haven't heard anything since. So at this point, basically me and my staff were still gagged from providing any literally like public information, but people are not coming in as much. I will say that in Tuscaloosa, we are seeing a definite uptick in the number of pregnant patients that we're seeing.

that has lacked healthcare, that is preventive healthcare. They lack basic quality issues, safe housing, and good food, all of the things that a person needs in order to be healthy. And because of that, I do not know what the rates of miscarriage is and what is induced miscarriage, or whether that is just people having miscarriages, because that's what happens when you have unhealthy bodies and they're made pregnant.

I do think that that is increasing. I don't have numbers that I can point to yet that show that. But you're not seeing healthy patients, I will put it that way, and we are likely seeing patients. I can say that we are seeing patients that we've already seen who are pregnant before, who are not pregnant now, who are pregnant again, and so they don't always tell us that they had a miscarriage or if they went and

had an abortion. But I will say that the amount of people giving birth is going up, but that it's not as much as I think it should be.

the easy, the earlier you do it. And also, nobody wants to be pregnant with when they don't want to be Like, nobody wants to carry around a child that they know is never going to result in a live birth if they are pregnant and wanted to be pregnant. I know personally when I had a miss miscarritage during my second pregnancy, the moment I found out that there was a non viable fetus inside of me, all I could think every moment was get it out, get it out, get it out, get it out. How fast could I

do it? How quickly could I get it done? I could not imagine going through what Kikoks went through in order to try to get permission and to do this lawsuit in order to stay home.

had no exceptions. They leave out fetal y and they say it's because doctors can be wrong, and so what do we do with politicians and a legal system that do not believe in medicine? Honestly, if people ever get outraged, and God, I hope like regular people finally get outraged at some point about what anti abortion activism has done to this nation.

We can't trust our patients because we don't know if they are actually seeking an abortion or trying to gather evidence against us for a lawsuit like the way that they have destroyed any ability for medicine to be practiced in an open and helpful and patient centered way is just horrifying Jesus.

is what happens. I was thinking a lot yesterday about the idea that we know that especially out here, doctors are primarily white obgin's even primarily white, primarily male, and the patriarchal and racism that goes with being an OBGYN in the South, And I started thinking a lot about we talk about all the different things that could impact that, About how abortion bands are driving people away from wanting to practice down here, about how abortion bands are ending

training so that people are able to get the training that they need to be able to provide abortions or miscarriage management. But one of the things that I never really thought about that really popped into my head yesterday was the idea of how our lack of sexual education is laying enough foundation that is going to make it so that nobody wants to practice gynecology down here, because we don't talk about sex, we don't talk about body parts.

Nobody thinks about, oh hey, this is something that I might want to go into at some point, because sex is this taboo, nasty thing out here that nobody in polite society would even discuss. How is that impacting a child who is going up through elementary school, who's going into high school. How is this impacting people who might decide to go to medical school because this is not something then that everybody is going to think is accessible

and acceptable and something that they should do. And so I think that we are looking at essentially a multiple generational loss of having providers, and especially providers who are in communities and no communities and are of the people that they will be serving and treating.

and he changed his vote and voted for Jefferson. Nonetheless, when the Twelfth Amendment came along, which was the only major amendment of the electoral College process. They didn't change that process, giving electors their freedom to vote as they wanted. So throughout history you've had an electors deciding to vote

contrary to how they were pledged. In twenty sixteen, this became quite a serious issue because a bunch of electors, after seeing that Donald Trump had not won the popular vote even though he had won the electoral college vote, decided to get together and try to persuade enough Republican electors to vote for somebody other than Donald Trump, so it could go to the House of Representatives and the

House side to vote however they wanted. They could vote for Donald Trump, they could vote for another Republican, they couldn't principal vote have voted for Hillary Clinton. But that obviously was not going to happen, so they tried to rally people. They failed to rally enough Republicans. They rallied a couple and then after the ELEC action, a couple

of them were fined. And I actually took the case to the Supreme Court to decide whether this tradition that had existed since the founding of electors being allowed to exercise their judgment was actually constitutionally protected or whether states could overturn it. That was pretty clear it was constitutionally protected. But nine zips the Court went the other way.

So there's a bunch of states still where the electors are free to vote however they want, and so on principle, you could imagine candidates persuading electors to switch their vote. It's never happened for an illegitimate reason in the history of the Republic. You know, there's been legitimate reasons. You could agree or just agree with them, but that's still

an open question right now. But the second more dangerous issue, which the Supreme Court case created is that you can imagine a legislature after an election deciding it didn't like the results of the election or didn't have confidence in the results of the election. What they can't do at that point is pick a new slate of electors. But what they can do, we argue, under the reasoning of the Supreme Court case, is basically tell their electors how

they must vote. So the electors could have been elected to vote for Joe Biden, and then the legislature passes the law that says, we actually think the real winner in our state was Donald Trump, so we direct you to vote for Donald Trump. And the Supreme Court upheld the procedure that said that if they don't vote the way they've been directed, they can be removed and replaced

with somebody who will. So this is a huge hole in the electoral system that's been created, and there's no obvious way to fill it unless the Supreme Court finds a way to reach out and clarify or restrict the scope of their decision.

election seemed to go for Richard Nixon. Then there was a recount ordered, and that recount and certification didn't occur or didn't complete until after the electors had to vote. So what the Democratic electors did as well as the Republican electors is they both met on the day electors were supposed to vote and cast their ballots, the Democratics for Kennedy, the Republicans for Nixon. And then when the election was finally resolved, the slate of electors for Kennedy

was urgently sent to the capital. Nixon ones had already been sent and Nixon was the vice president, and Nixon said, well, it's kind of an odd situation, but not setting any president, I'm going to recommend we count the votes for Kennedy, and Kennedy's votes were counted. That Trump electors and the lawyers for Trump, Ken Chesboro most directly everyone's favorite, so

they knew of this president, this president. Chesboro was urgently writing memos to states around the country, saying that if you want your electoral votes to count, they've got to be cast on elector Day. Now, in some states that was completely bogus, Like New Mexico, the Trump campaign filed a lawsuit fifteen minutes before the electors were supposed to vote to somehow create cover for Republican electors to vote, even though the state had been decided by more than

ten points for Biden. In other states, it was more open. The state of Wisconsin had an ongoing state court proceeding which was resolved only fifteen minutes before or the electors were supposed to vote. At least a vote to the state Supreme Court was resolved then, but they still hadn't filed their motion for rehearings, so plausibly, they had an ongoing chance that their votes would count, so they also met and cast their ballots. Now, all of these electors

are called fake electors. I think I believe, and I think Matt agrees with me, that it's not fair to call all of them fake electors. If you genuinely believe the election is undecided, the only way your votes could ever count is if you gather and vote on elector Day. It's just a flaw system. So if they genuinely, in good faith believed it was an unresolved election, then it's a good thing they gather and vote, because if they didn't,

their votes couldn't count. This is one of the lessons that Ken Chesbro learned because he worked for al Gore in two thousand and the lawyers for al Gore made the incredibly stupid mistake of conceding that everything had to be resolved by what's called the safe Harbor Day, which was days before the electors were supposed to vote. So the Gore electors actually never voted on Elector's Day. They

never cast their ballots. Even if somehow the whole system had converted and recounted happened and Gore had won, there wouldn't have been any electoral votes to be counted on January six. So that's why Ken Chasburrow was so keen to make sure the same thing didn't happen with Donald Trump. But obviously More's claims for legitimate recount were stronger than Donald Trump's.

presidence of the Senate in the House of Representatives, and then the votes shall be counted. And it says that in the passive voice, and as a result of that hassive voice, it doesn't say exactly who does the counting. John Eastman and others, including Ken Chesbro, advanced the theory that, well, actually the vice president is the one who does the counting of electoral votes, and as a result of that, the vice president is the one who gets to resolve

any disputes about electoral votes. So if there's more example, multiple submissions of certificates from different slates of electors, Eastman advanced the theory that well, it was actually Vice President Mike Pence who got to make the final decision about that. Now, the text doesn't fully resolve that issue one way or another.

And so Eastman made a claim about history. He said that actually, the original understanding of the Constitution, going all the way back to the seventeen nineties, was that the vice president resolved disputes about this, and that was the basis of this fateful advice that he gave in a dramatical office meeting with President Trump and Vice President Mike Pence, where he was imploring Vice President Pence to exercise some

unilateral constitutional authority to change the results of the election. Now, Vice President Pence ended up rejecting that theory, and he very dramatically, right before the electoral count started and the violence came to the Capitol, he released this public letter saying that he didn't believe that that was the right interpretation of the Constitution. And in this case, Vice President Mike Pence was right, and President Trump and his lawyers

Eastman and chest Row were wrong. And so the way that Eastman ended up in a disbarment proceeding isn't just that he gave incorrect legal advice. It is that he gave legal advice that had no historical basis whatsoever. So Eastman based his theory on the idea that in seventeen ninety seven and eighteen oh one there were vice presidents John Adams and then Thomas Jefferson who presided over electoral

counts in which they themselves were then elected president. And according to eu mean those vice presidents Adams and Jefferson actually resolved disputes unilaterally about electoral votes, about the validity of electoral votes. In seventeen ninety seven it was about Vermont, in eighteen oh one, it was about George And according

to Eastman, well that's historical president. That shows that the way the founders imagined the Constitution and how this would work, is that the vice president then not Congress, would have the authority to resolve these sorts of disputes. Now, Eastman's history was flat out wrong, and so if you go back and read the records, it's absolutely clear that neither John Adams nor Thomas Jefferson resolved any disputes about this. Nobody ever suggested at the time that the vice president

had this authority. And the way the process works from seventeen ninety one until today, Congress appoints these members of Congress as tellers, and the tellers do the counting, and

this is still true. But John Eastman used this misunderstanding of history to say that Vice President Pennce had this extraordinary Power's stepping back for a second to imagine how radical that view would be, not just because it defies history, but also because it would create a system where the vice president would get to decide whether he won reelection. We sometimes gloss over the fact that John Eastman's advice to Mike Pence wasn't just that he could decide that

President Trump would be reelected as president. He was saying that Mike Pence could decide whether Mike Pence was re elected as vice president. And that violates a pretty fundamental principle of the rule of law that no man can be a judge in his own case. But that's exactly the theory that they advanced, and it's just completely unsupported

by the history. And you know, it's really difficult to imagine that that Eastman, that Trump would sit here today and say that Vice President Kamala Harris has the authority to decide the election on January sixth of twenty twenty five. And so I think that illustrates that perhaps they don't have the courage of their convictions.

the opposing political party complained at all. And that's like saying that, well, if Mike Pence counted Trump and Pence as reelected in twenty twenty one, that there would be absolutely nobody, not a newspaper column, not an opposing politician, not the losing candidate, Zero people would have complained about it.

And that's just completely implausible. And when there actually were disputes about electoral votes, which happened about a half dozen times in the nineteenth century, the first time was in eighteen seventeen, then eighteen twenty one, eighteen thirty seven, eighteen fifty seven, and then eighteen seventy seven, which was the

most serious one. In every single one of those cases, it is absolutely one hundred percent clear that Congress resolved a dispute and the Vice President played no role whatsoever.

that this just is not allowed to happen. So that would be my first vote, Matt, what's your second vote?

catastrophically vulnerable to manipulation. A single governor defining, you know, the outcome of the results in his or her state could potentially flip an election, and there was nothing that anybody could do about it. And so Congress did this extraordinary thing in December of twenty twenty two that almost went unnoticed given how significant it is by closing a lot of those loopholes. But many loopholes remain, and so you know, there's still time for Congress to step in.

I'm not overly optimistic that that's going to happen. So I think that we need to be prepared for the possibility that these residual loopholes in the Electoral count reformat can be exploited. And how do we organize against that. Well, I think there are two things. The first thing that we do is that we start preparing the legal arguments

that we're going to have to make in court. The twenty election didn't go to the Supreme Court, but you know, as Larry indicated, you know, there's I think a serious risk that there are going to be legal issues that do end up becoming so severe and potentially outcome determinive. So it goes to the Supreme Court. So we need to be prepared to do that. But stepping back from that, there's something that we election lawyers call the margin of litigation.

And so the reason why Bush vy Gore was such an intensely disputed election where you know, the election in New Mexico in twenty twenty where Biden had won by ten points wasn't is because the difference was so big in New Mexico. And so we election lawyers talk about the margin of litigation as if it's not close enough that there are plausible or at least plausible sounding allegations

of fraud or misconduct or illegality. If the margin is just really, really big, then these disputes and these legal questions don't have enough purchase to create real risks. The most important thing that people can do is vote and make it so that the margin is outside the margin

of litigation. And now in our new world where election just speeds go beyond courts and they go to state legislatures, and they go to Congress, and they go wherever they can possibly go, making sure that that margin is large enough that no state legislature would dare do the things

that we are talking about. If Biden has declared the winner in let's say Georgia by one hundred votes, then the state legislature may feel emboldened enough to say, oh, we think there was there were legal votes, and so we're going to direct the electors to vote for Trump

instead of Biden. But if the margin is fifty thousand, then it's much less likely that there's going to be the political will, the political verb, the political shamelessness to take that step that would undermine the rule of law in our democracy.