Brian Lehrer: Brian Lehrer on WNYC. Twitter and Facebook, a caller mentioned Twitter and Facebook a moment ago and their role in spreading disinformation as she experienced it while canvassing in Pennsylvania, but Twitter and Facebook have been posting content warnings for disinformation on some of the President's post-election tweets and posts claiming for example, fraud with no evidence of fraud and claiming that he won Pennsylvania.

No one has been declared the winner in Pennsylvania. In Arizona, pro-Trump and anti-Trump protestors both show up at Maricopa County vote counting station that Trump supporters chant.

Supporters: Count the votes. Count the votes. Count the votes.

Brian: Count the votes. Count the votes. In Michigan pro-Trump and anti-Trump protesters show up at a Detroit vote counting station and the Trump supporters chant.

Supporters: Stop the count. Stop the vote.

Brian: Stop the count or stop the vote. They now hope to stop or invalidate some of the counts in court in States where they want to stop the count. Then there are the States like Arizona, where they want the count to continue.

With us now, Brooklyn and Queens Congressman Hakeem Jeffries, who is also the chairman of the House Democratic caucus and a member of the house Judiciary and Budget committees. We'll talk about the vote counting lawsuits, Democratic Party losses in the House and more. Congressman, always a pleasure. Welcome back to WNYC.

Congressman Hakeem Jeffries: Good morning, Brian. Great to be with you.

Brian: You tweeted a couple of hours ago. It's a bright and sunny morning here in Brooklyn and a new day in America is on the horizon. Are you counting your chickens a little too soon?

Congressman Jeffries: Not at all. Democrats are going to hold the House of Representatives. We still have a pathway, albeit a narrow one in terms of the Senate, but most importantly the grifter-in-chief, the birther-in-chief, the corrupter-in-chief is on his way out of 1600 Pennsylvania Avenue. That I'm confident of when all of the votes have been counted.

Joe Biden of course will win with more popular votes than any other presidential candidate in American history and most importantly, will win the electoral college and he can help us turn the page on a very divisive moment in American history.

Brian: The new day on the horizon in the House seems to be not so sunny for the Democratic Party. Last I saw you lost about a dozen seats around the country to Republicans. You'll still have the majority, as you say, which is the most important thing there, but it's not the bright and sunny morning you're forecasting for the White House. What happened?

Congressman Jeffries: Actually, I think that this was a question of mismanaged expectations and to some degree, irrational exuberance bolstered by some polling that probably turned out to be inaccurate. For instance, the Cook Political Report was suggesting that we were going to win five seats and then it was five to 10 and then it was between 10 and 15.

I don't believe that ever was the case Brian, because we're running on Tea Party drawn, heavily gerrymandered districts, dealing with incredible voter suppression with Donald Trump back at the top of the ticket, having to defend 30 seats that were won by Donald Trump in 2016, that we flipped in 2018. 30. I think at the end of the day. it's going to be more like six to eight seats that we will have lost as a net.

There were two members in Michigan who seemed to be in trouble on election night, Elissa Slotkin and Haley Stevens. They've both won. There were two members in Virginia, rural Virginia, Abigail Spanberger and Elaine Luria, who seemed to be in trouble on election night. They've both won.

There were four members in Pennsylvania who were down on election night because of course not every vote had been counted, Chrissy Houlahan in the collar counties around Philadelphia, Susan Wild in the Lehigh Valley, Matt Cartwright in the Scranton area, Northeast Pennsylvania, and then of course, Conor Lamb in Western Pennsylvania. They've all won.

What looked like a bit of an unexpected disaster on election night was just the outcome of the fact that not every vote had been counted. When the dust settles, yes, our majority won't be what it was at the start of this current Congress, but it should never have been expected to be that way because of the fact that we had to defend 30 seats in districts that Donald Trump won in 2016 with him back at the top of the ticket and his supporters energized. I'm very happy with the outcome that we have.

Brian: Congressman Hakeem Jeffries with us, the Trump lawsuits. There's a version of the same thing, I guess you could say in Pennsylvania and Michigan and Nevada, that all have to do with access for poll watchers to see close up the counting of ballots, without which they're saying, it's just a matter of trust that there's no fraud taking place. What's response in general terms?

Congressman Jeffries: These are frivolous lawsuits and the Trump operation doesn't really have a palpable theory. If we go back to 2000 in the aftermath of the Bush/Gore situation in Florida, remember it was the Republicans who criticized Al Gore because in certain counties, Miami-Dade and Palm Beach County, he wanted the votes to continue to be counted and wanted a recount, and then in other counties where he thought he didn't necessarily do that well, he didn't want any recount and so he was criticized for the inconsistency.

That's exactly what we're seeing right now, as you pointed out Brian, from Donald Trump. In certain States, he wants the count stopped like in Georgia, for instance or in Pennsylvania and other States like Nevada and Arizona, he wants to count continued. He's all over the place because he's got no real viable legal theory. This is all about raw politics and trying to really alter the will of the voters. We're not going to let it happen.

Brian: Is that a political argument merely or is it also a legal argument? If you really want to get in the weeds on Bush versus Gore, as I know you know, it was because within one state, different counties were going to do recounts in different ways and that's what the Supreme court threw out as not treating all voters equally.

If you're looking at different claims for different States, if they're only looking to stop the count in particular States, but those whole States, because the poll watchers don't have access, does that hold up legally? Would you make that case in court?

Congressman Jeffries: When it comes to electoral litigation, there's something called the political question doctrine which you're familiar with and generally courts are reluctant. This is why they violated this and Bush v Gore and that was very problematic to get involved in political questions.

First off, I'd say that it's important to make sure that public sentiment is on the side of counting every single vote and that's the consistent position of the Biden campaign under the rules that currently exist in these various States.

There is no counting that is taking place outside of the boundaries of the laws that exist in Arizona or Nevada or Georgia, Wisconsin, Michigan and Pennsylvania. I think when there's no evidence of illegality consistent with the laws that currently exist, the Supreme Court or other courts are generally reluctant to get involved in what becomes a political question.

I think that's why the notion of making it clear that the Trump campaign is really making a political argument, not an argument based on state statute is a legal theory as to why the courts shouldn't even bother hearing these frivolous lawsuits.

Brian: If they're going to go beyond state statutes, then they're going to have to make a constitutional case, if they're going to the Supreme Court for example, or any federal court that somehow the application of state law violates the US constitution, but here's a clip of a Republican poll watcher in Philadelphia named Jeremy Mercer in an appearance with Trump attorney, Rudy Giuliani yesterday. Mercer was describing how far away he was from being able to see details of the ballots.

Jeremy Mercer: At least a 100 feet away from open ballots that go back out of our sight, we can't see them. We don't know what's happening to them. It's just-- There's no way for us to meaningfully observe the process from where they have us.

Rudy Giuliani: Could you tell us how many ballots approximately went through that process that you had no chance to observe.

Jeremy: Based on the accounts we've heard, it's about 125,000, maybe more.

Rudy: Well, so that should be deducted from the count. Those were ballots that were counted in violation of the law without an observation.

Brian: Trump attorney, Rudy Giuliani with Philadelphia poll watcher, Jeremy Mercer. Congressman, if what he describes is true, wouldn't you be concerned if your candidate was losing the election?

Congressman Jeffries: No, because I have no reason to believe that what has actually been described is true. This is sad, Brian. This is very sad. We've gone from James Baker, former secretary of state, and Warren Christopher, former secretary of state to Rudolph Giuliani, a failed mayor, a failed Presidential--

Brian: You're talking about the 2000 count. It was James Baker who was a respected statesman as well as a lawyer representing Bush and Bush versus Gore, but James Baker played hardball politics. There was--

Congressman Jeffries: James Baker played hardball politics without question. He probably was a little stronger in terms of his presentation and his approach than Warren Christopher, but they will both respected as you pointed out Brian, States members, Rudolph Giuliani is far from that. Failed mayor, failed presidential candidate, failed lawyer.

He's under criminal investigation right now, as far as we know in the Southern District of New York, and may have been operating as an asset, perhaps unwittingly of the Kremlin. This is the only person that [crosstalk].

Brian: You still have to address the poll watchers claim.

Congressman Jeffries: That's a singular poll watcher. Listen, everybody should be heard so we can get to the truth in terms of what's taking place. We know that the President has articulated baseless allegations of fraud for four years.

Now, this is part of his challenge Brian, because when you've not produced any evidence of fraud for four years, yet you've continued to perpetuate that lie to the American people and in fact, you even had a commission to investigate voter fraud led by a sycophant, Chris Kobeck from Kansas, who is an extreme right-wing conservative and even he couldn't come to the conclusion that there was any fraud and that commission was disbanded.

A lot of people forgot about that because it feels like it was 20 years ago, because we're dealing with time in a different way during the Trump administration. It's hard now for us to take you seriously when you try to out some random poll watcher whose credibility is being vouched for by Rudolph Giuliani. I'm just being as straight as I possibly can with you Brian.

Brian: Go ahead. Finish the thought.

Congressman Jeffries: We'll see what's presented in the public domain. A court of law will ultimately decide, but there's no reason that I think anyone in the Biden campaign is concerned or take these allegations seriously.

Brian: I'm going to follow up on this one more time because it's not just one random poll worker. I don't think here's one more soundbite. This is Steven Blan, a chaplain for the Detroit democratic poll watchers, as I have it standing outside a pole counting site that was having drama yesterday in Detroit about the limited number of ballot challengers allowed inside due to COVID there.

Steven Blan: We are in the process of wanting to get all the votes counted. The road to victory of any side is going to come through Michigan and through Detroit.

Brian: That was where the Trump people were chanting, stop the votes, but apparently that clip came from someone at least as I have it from my producer was a Democrat. What's a fair standard in your opinion, for access to have both parties view up-close every paper ballot? What's the standard?

Congressman Jeffries: Well, I think I've been impressed by what I've seen in Fulton County, Georgia, where there's a mechanism in place, where they have outside observers from both campaigns and that when there are contested ballots, there's a process put in place where you've got some independent arbiter and a combination of partisans all having to evaluate the claims ballot by ballot.

Now, because of our system of federalism that exists, different States have different approaches to how these ballots are counted, and that's part of the system that we have, and maybe there's an argument to be made that we need to make it more uniform.

That involves a broader question of state independence in the context of being the custodians of our elections pursuant to the United States constitution and our understanding of our democracy as it's evolved over the last 240 years, but I think as long as there are the capacity to observe, but most importantly that partisanship has been taken out of the process and there's independent determinations that are being made, the American people can feel comfortable that this election is being conducted fairly.

I've got to say that when you have record turnout, I've been pleasantly surprised at how smoothly it's all gone in all of these states. We should be proud of ourselves as a country and as a democracy, particularly given the fact that we know foreign actors led by Vladimir Putin and Russia have been working as hard as they can to destabilize our democracy and the American people have not allowed it to happen.

Brian: With Congressman Hakeem Jeffries from Brooklyn and Queens 646-435-7280. Tony in Brooklyn, you're on WNYC with the Congressman, hi.

Tony: Good morning Brian, how you doing. Tony.

Brian: Thanks for calling.

Tony: I'm from Brooklyn, Clinton Hill. I look at the whole process it's really a calamity. In this age of our technology and everything we have Microsoft, Apple, everything, all we have to do is do a fingerprint imaging voting. If you've worked with the federal government, you've been fingerprinted. If you worked for the city government, you've been fingerprinted, you've adopted a baby, you've been fingerprinted.

I'd say half of this country has already been fingerprinted. If we did this, nobody would have any voter fraud. It would be immediate results. I could be in Alaska and I have to cast my vote in Brooklyn. I put my finger down on the device after it was swiped with Lysol say, "Okay, this is you Tony. You live over here in Brooklyn and you're going to vote in your district." Pop it in, press it done. I'm out.

Brian: What would you do with mail-in ballots? Have you thought it through to that degree?

Tony: Well, you know what Brian? I'm going to tell you, they just recently did a census throughout this country. They had everybody walking up to door-to-door with a tablet. If they could do that for census I think the election was a lot more important than that, and they could take these tablets to nursing homes where people can't access anything, get everybody registered with their finger and you wouldn't have a problem when a baby's born, they take the footprint, take a [sound cut].

Brian: Take a fingerprint. Tony, thank you very much. Congressman I'm feeling you don't like that one.

Congressman Jeffries: Well, I appreciate Tony's suggestion and I do agree that we should evaluate how we can deploy technology moving forward in a more precise way. With respect to fingerprint technology, my suspicion is that there will be people understandably on the left, progressives myself included who would have a real problem with the mandatory deployment of fingerprint technology.

There will be people on the right, the libertarians, the Rand Paul/Mike Lee wing of the party, who would have a real problem with the mandatory deployment of fingerprint technology because of the understandable concerns of government overreach.

I mean, think about this, Brian, we're in the middle of a pandemic. People don't want to wear masks in many parts of the country, even though that could save the lives of themselves and their families because of their feelings about liberty, which runs through the American narrative and experience for century after century after century.

There is no way we can mandate fingerprint technology to be deployed for hundreds of millions of Americans, but I get the suggestion that we should explore ways to deploy technology that strikes the right balance between our Liberty, and the efficiency of the electoral process moving forward.

Brian: Claire in Brooklyn, you're on WNYC with Congressman Hakeem Jeffries. Hi Claire.

Claire: Oh, it's such an honor to speak to you, Brian and Congressman Jeffries. Thank you so much for taking my call. I wanted to say that I think that what the Trump team are doing here is not dissimilar to what they did with the Mueller report. Having Bill Barr do-- Release his version of it ahead of time, and what it does is fix the narrative in place.

No surprise, but someone who is terrible at leadership would be terrible at losing as well and the stakes are very, very high for him. I think what we're looking at now is someone who was a huge-- Who is basically the mouthpiece of birtherism is now engaging in ballotism.

Brian: By doing what? What are you think of exactly that he's done?

Claire: By questioning the legitimacy of ballots. He's questioning the legitimacy of democracy. I just think by declaring victory and all these other things and casting into incredible doubt the legitimacy of the process, what he is doing is what Barr did to undermine the conclusion of the Mueller report and now is not the time to fall asleep at the wheel.

The Democratic Party really needs to hustle around this before this fixes in place in the public mind. He's been talking about election illegitimacy for four years. The problem in this country is people don't vote enough. [chuckles] Thank goodness for the turnout that we've had in this election [crosstalk].

Brian: Right, and then to try to discredit the elections. Claire, thank you so much. Congressman for you as someone who was one of the house impeachment managers, what do you think about the parallel that Claire is drawing?

Congressman Jeffries: Certainly, the President has a Master's degree in manipulation and a PhD in deception. We've seen the fact that he's told 20,000 plus documented lies during his Presidency. I actually think that that's one of the things that undermines his effort at this moment in time to try to shape the narrative because he's told so many provable lies.

We know that there will be Trump fanatics who will believe anything that he says. We should just accept that as reality. The American people have spoken and the integrity of our democracy is anchored in the principle of government of the people by the people and for the people.

Which means that we have to count every vote cast by the people. One person, one vote in every state, and once that process is done, the will of the people will have been understood and I believe Joe Biden will be the next president of the United States of America.

I think that Joe Biden has struck the right tone of being forward looking, optimistic, but unifying both when he spoke on election night, but particularly in his remarks yesterday. I expect that you'll continue to see that as we move forward and that a majority of the American people will strongly accept the legitimacy of Joe Biden's Presidency particularly when he starts to govern and lead and do so in a unifying fashion.

Brian: I know you got to go in two minutes, but one of the tweets that Twitter flagged as misleading from the President said, "We are up big, but they are trying to steal the election." That's misleading because Trump wasn't up big, but even more importantly, there was no evidence of anyone trying to steal the election when he tweeted that.

You tweeted last week, two Supreme Court seats have been stolen, we cannot let them steal the Presidency. What version of stealing the election were you suggesting was possible and how different is that from the President and what he tweeted?

Congressman Jeffries: I think it's beyond question pursuant to their own standard in terms of stealing the Merrick Garland seat and then stealing the Ruth Bader Ginsburg seat, may she forever rest in peace and we're so thankful for the life and legacy of the notorious RBG from Brooklyn.

Part of why that was being done, according to Trump's own words, is that he wanted to throw this election to the Supreme Court and get some version of Bush v Gore to go in his favor, if he's able to create enough uncertainty around the results of the election.

It's not speculation, Trump has publicly been signaling that he had one of two strategies that he wants to either throw this election to the Supreme Court and steal it or throw this election to the House of Representatives by trying to undermine the legitimacy of some of the electoral college victories that Joe Biden won in states where there are Republican governors which is probably why he was on the phone with the governor of Arizona and a governor of Georgia screaming at them yesterday.

God knows what else he said. I just think Trump often says what's on his mind and in that case, he did with respect to his intentions. I just wanted to make it clear that the people are going to decide this election, Supreme Court is not going to decide this election, Congress is not going to decide this election, the people are going to decide this election by counting every vote. When that happens, Joe Biden is the next President of the United States of America.

Brian: Congressman Hakeem Jeffries, we always appreciate it. Thank you so much.

Congressman Jeffries: Thank you so much, Brian.

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.