Bill Moyers talks with David Berg and Daryl Bristow about Trump's Laws... (1)
ANNOUNCER: Welcome to Moyers on Democracy. President Trump still will not admit he lost. He tweets and repeats the lie that the election was a fraud, the vote rigged, the election stolen. There are fewer than ten weeks before he must leave office, but he refuses to cooperate with Joe Biden in the transfer of power, denying the man who beat him by over five million votes the resources usually provided to a president-elect. Trump has flooded the courts with lawsuits contesting the results, seeking recounts, trying to stop the certification of ballots in battle ground states. Washington grows more paralyzed, the country more polarized, the rule of law in limbo. Here to assess what's going on are two of the country's most experienced lawyers in election litigation. Daryl Bristow is the former senior partner of the multinational law firm Baker Botts LLP, based in Houston. A graduate of the University of Oklahoma and Harvard Law School, he worked for George W. Bush's legal team on two Florida lawsuits regarding balloting for the 2000 presidential election. David Berg founded the firm Berg & Androphy, with offices in Houston and New York City. He has recently taken Trump and others to court over their efforts to use the Postal Service to discredit and dismiss mail-in ballots. He's written two acclaimed books — the memoir RUN BROTHER RUN, and THE TRIAL LAWYER: WHAT IT TAKES TO WIN. Here to talk with Daryl Bristow and David Berg is Bill Moyers.
BILL MOYERS: David Berg and Daryl Bristow, thank you for joining me.
DARYL BRISTOW: Happy to be here.
BILL MOYERS: One headline after another in the last few days has described Washington in a state of chaos. Does it appear to you to be that bad there?
DARYL BRISTOW: The first thing I think about is the tense time we live in, because politics has gotten to be almost a religion. And it's turned people into a religious fervor. Friends, close friends, people that I have long-standing relationships with– there's a strain now when we even think about talking about politics because their views are extreme. And they're extreme in an atmosphere of mendacity; lies and liars. It seems like that's acceptable as long as you achieve the bottom line on the lawsuit, although, frankly, I don't see much to the lawsuits.
DAVID BERG: On the issue of these lawsuits, they're terrifying people. I've gotten emails the last few days asking if Trump's lawsuits are going to upset the results of the election. And, as Daryl and I both can tell you, the lawsuits are specious. The one that's gotten the most attention is the one filed in Pennsylvania where the lawyers are attempting to shut down the certification of the Pennsylvania vote, which I can tell you right now, for a number of reasons, that's never going to happen.
BILL MOYERS: Have the Trump lawyers won any of these many suits they are scattering across the country?
DAVID BERG: They've won a modest order out of the Supreme Court. Justice Alito agreed to refer the question of whether or not, in Pennsylvania, the ballots that were received after Election Day were segregated from those received before Election Day. But it's absurd because they were segregated. And the election was decided on votes received by November 3rd. So, it's absurd. If your listeners want to, go to the website of Democracy Docket and you will see that, of all the cases that have been filed– the case where they're asking to shut down the certification in Pennsylvania, one of the things that you'll find is that they drew a judge who was appointed by Barack Obama and he's got an excellent, scholarly past. And I disagree with Justice Roberts. There are Trump judges and there are Obama judges. So, we've got a hell of a shot at seeing that knocked out quickly.
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DARYL BRISTOW: You know, David, I will say this. No question, you have judges who've been appointed and they have allegiances. But at least my experience in 2000 was that those judges did the right thing. we had concerns about some of the judges in a situation as serious as the one we were in. They did the right thing. So, I believe, in the end, although there's going to be a lotta speculation and a lotta fear, I think the system will work. And—
DAVID BERG: To your point, Daryl, I have what I call the Andy Hanen rule. Judge Hanen is a very conservative judge. And about a week ago, a couple of very right-wing plaintiffs filed suit in his court seeking to disqualify 127,000 votes that had been cast around Houston in Harris County at drive-through ballot boxes. And Judge Hanen's response was, first of all, the Supreme Court had approved establishing these ballot boxes where you could just drive through. But he said, you've come to me at the last minute, he was obviously perturbed with that, trying to change the rules. Secondly, he said, I have questions about the legality of these drive-through ballot boxes. It has to do with what's called legislative deference, that the local officials in Houston who set up these ballot boxes had no right to make that change. But he said, even if I found it illegal, I would still count those votes. And one of Daryl's points that he's made repeatedly that it's absolutely true, you have these innocent voters who rely on officials, for instance, in Pennsylvania on the Supreme Court, saying if your vote is postmarked timely and comes in after the election it'll be counted.
BILL MOYERS: Daryl, you mentioned your experience. The fight you were in, what was that, briefly?
DARYL BRISTOW: I represented Bush and Cheney. In 2000, we had three election contests — the Bush v. Gore case, which we all know well, and then two mail-in ballot cases, Seminole County and Martin County, where the Democratic people, were essentially attempting to invalidate 25,000 ballots because the ballot request forms had incorrect voter registration numbers. And the Republican representatives had gone in and corrected those numbers; a violation of Florida law. So, there was a technical violation. And the contention was that because the law had been violated with regard to process, that voter's ballot should be discounted. And if they won those cases, Bush would've lost the presidency. Our position was you cannot set up a system, have a supervisor of elections send out the ballot forms, have the voter actually cast the ballot– all of that, admittedly, the voter had attempted to cast the ballot, had casted the ballot and the Florida Supreme Court confirmed what was state, federal and constitutional law. And that is, you don't invalidate, you don't disenfranchise a voter after the fact when they have relied on the system in order to cast their vote.
BILL MOYERS: Does that experience connect in any relevant way to what's happening right now with all these suits that the Trump team has filed?
DARYL BRISTOW: Well, you know, think about the fact that the Bush campaign, back then, was defending the voting system, was defending the integrity of the ballot. The Trump administration basically is trying to dismantle the integrity of the ballot, disenfranchise voters who innocently cast their ballots. That experience was where the system was tested in one state where there was a few hundred votes' difference. Here, we're talking about five states and a huge amount of ballot difference, and over 5 million votes in the popular vote; a very different situation. A lot less room to stand up and question the election.
BILL MOYERS: David, the last time you and I talked you had just filed a suit against the Postal Service. Where does it stand?
DAVID BERG: We actually filed a suit against Trump, the Postmaster General DeJoy, and against the Postal Service. The object of the exercise was to reverse certain practices that DeJoy triggered. When DeJoy came on board at the Postal Service, DeJoy instituted policies that were, in fact, detrimental to the to on-time delivery of mail-in and absentee ballots. And he froze any more hiring at the Postal Service when thousands upon thousands of postal workers had been felled by the coronavirus or fear of going back to work because of it. Not just Judge Sullivan, the district judge in the district court of D.C. where we filed our suit along with three other suits, but three or four other federal judges issued preliminary injunctions. And by the way, there are eight preliminary injunctions telling the Postal Service, stop doing what you're doing. Reinstitute late delivery, extra trips, hire personnel. Stop this hiring freeze. And, in our case it told them, you've got to reverse these policies. You've got to hire the personnel to get these ballots, these mail-in ballots and absentee ballots delivered on time. This led to a lot of issues, Bill. In Judge Sullivan's case, we had hearings every day for two weeks or more, Saturdays and Sundays included, during which the Postal Service was required to produce evidence of the delivery rates of mail-in ballots and also absentee ballots.
BILL MOYERS: Right.
DAVID BERG: And what's astonishing to all of us is that after these injunctions were sent to the United States Postal Service, the testimony was– from high-ranking officials, executive vice presidents who reported directly to DeJoy, a very critical factor– nothing happens there now without his approval. What we learned was that they treated the injunctions as suggestions. They did nothing different. And instead of improving on-time performance, instead of making sure these mail-in and absentee ballots were delivered on time, the performance rates deteriorated, degenerated badly. Now Judge Sullivan stayed very much on top of this. And he issued orders making sure that the various post offices were swept. In only about seven or eight jurisdictions, one example was Atlanta, where they had very sub-standard delivery of absentee and mail-in ballots. Houston, Detroit, astonishing low delivery rates. If I were of a conspiratorial mind, I would say that it's very suspicious. And this was the basis of our lawsuit. Those three are Democratic strongholds. All three of them, Detroit, Atlanta, Houston had sub-standard delivery. There were some other areas like central Pennsylvania that had sub-standard delivery. But that was the exception. And that's a Republican area. So, where does it stand now? We had this discussion with a court the other day. Are we now mooted? Biden has been elected. The ballots have been cast. No, it's not over. That's just one example. And this was my grave concern. We have a runoff in Georgia that could, as the judge pointed out, that could tip the scale of power in the Senate. I mean, it's a point that all of us know. And we cannot give the DeJoy-led Postal Service free reign over delivery of mail-in ballots. So, the case continues. And I think it will end in a consent decree in which the just the Postal Service, through its lawyers at the Justice Department agree that they will never institute the kind of destructive policy, the termination of extra trips by the Postal Service, of late trips, of hiring the personnel they need. That they never again will do that during an election season.
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BILL MOYERS: You're looking to the future as well as to the recent election.
DAVID BERG: Absolutely. We want to not only put an end to what they've been doing that impedes the delivery of mail-in and absentee ballots. But we want to stop it from now on in every election year. We can never have this kind of interference.
