The Rachel Maddow Show, Transcript 10/26/2016

Guests:
Harry Enten
Transcript:

Show: THE RACHEL MADDOW SHOW
Date: October 26, 2016
Guest: Harry Enten

RACHEL MADDOW, MSNBC ANCHOR: We`ve got news coming up on that exact
subject later on in my hour, including comments from Tim Kaine about how he
will vote on Merrick Garland is if he`s in the Senate and Garland`s
nomination is still standing and it comes up. We`ve got that later.

CHRIS HAYES, “ALL IN” HOST: Fascinating.

MADDOW: Thanks, my friend.

HAYES: All right.

MADDOW: And thanks to you at home for joining us in this hour.

We do have that story, including that exclusive content from Tim Kaine
talking about how he would vote in the Senate on Merrick Garland. That`s
coming up towards the end of the show tonight. But we start with something
that we`ve got – that I knew was coming. I did not know it was coming
this quickly.

And I`m not the kind of person who says, “I told you so,” but in this case,
I told you so. I just didn`t know it would happen so fast.

OK, here`s the story. This is a big deal. On Monday night, we reported
here on this show on a huge new problem that the Trump campaign seemed to
have cooked up for the national Republican Party.

Now, I mean, to be clear, in context, big picture, there`s a whole bunch of
problems that the Trump campaign has created for the Republican Party at
this point. There`s a new “A.P.” national poll that puts Donald Trump
nationwide 14 points behind Hillary Clinton. Fourteen points behind?

Now, that is not the only poll in the world, right? There`s another
national poll out also tonight from FOX News that says he`s only 3 points
behind Hillary Clinton.

We`re going to be talking later on in the show with an expert about how to
read the various polls right now. How to know what`s right, especially
when you`ve got results like these that are so disparate.

But in either case, whether he`s 14 points behind or 3 points behind,
depending on these two national polls that are just out tonight, he is
still behind. The headwinds seem very clear right now.

Tonight at fivethirtyeight.com, they`re reading those headwinds for the
presidential race. They`re looking at how they affect the Senate polls in
races across the country. FiveThirtyEight is currently giving the
Republican Party a 68 percent chance of losing control of the United States
Senate this year. So, that is just one of the problems that it appears the
Donald Trump candidacy has created for the Republican Party.

Here`s another new one that I think nobody`s been talking about thus far at
the national level but this could be really important. Today, the national
conference of state legislatures said that they`re watching for party
control to potentially flip this year in 11 state Senates and in 7 state
assemblies. In the vast majority of those they expect to flip they are
Republican controlled now, which means if they flip, they`re ready to flip
to Democrat, if the now expected blue wave comes in just at the right time
and just in the right way.

So, that`s another part of the bad news that the Republican Party I think
can largely blame on the presidential candidacy of Donald Trump. So I get
that in context, he`s made a lot of bad news for them. But what we
reported here on Monday night that has now all of a sudden come to fruition
as truly bad news for the Republican Party brought upon them by Donald
Trump, it`s a very specific thing. It`s something that leading Republicans
are tearing their hair about tonight. And it is having to do with this.

(BEGIN VIDEO CLIP)

REPORTER: Several of these signs were reported at polling places in
Newark`s North Ward. Republican poll watcher, some of them off-duty
policemen wearing guns and arm bands were also near the polls. It was all
part of the national ballot security task force set up by the Republican
national and state committees to guard against vote fraud. But Democrats
charge it was a scare campaign to intimidate voters primarily in minority
neighborhoods.

(END VIDEO CLIP)

MADDOW: OK. This was 1981, the New Jersey governor`s race that year. We
reported on this Monday night. This is the case where the national
Republican Party got involved in that gubernatorial election. They flew in
basically a goon squad of national operatives on Election Day and these
guys flooded into minority precincts as basically vigilante poll watchers.

Governor`s race in New Jersey was going to be close that year. This group
from the RNC decided they wanted to keep the vote down in Democratic
friendly minority areas. And so, in Trenton, and Camden, and Newark, they
put up these big warning, warning, warning signs telling people that these
voting locations would be patrolled by the ballot security task force. And
they brought in off-duty cops and off-duty sheriffs deputies who in many
cases wore guns on their hips, and these guys put on these hooptie ballot
security forces arm bands which made them look quasi-official, and then
they, in fact, physically patrolled the voting sites in dozens of precincts
that had mostly minority voters.

Incidentally, I should tell you, if you did call the phone number that was
listed on their big warning signs because you wanted to collect their
thousand dollar reward for voter fraud, the 1-800 number on those warning
signs reportedly went directly to the Republican National Committee
headquarters at the time. So, there was no obfuscating this. It was
straight up an RNC op. And it worked.

The Republican won the governor`s race that year in New Jersey by a tiny,
tiny fraction. Both parties at the time claimed that this ballot security
task force stunt is how they did it. These armed guys in semiofficial
looking arm bands stomping around minority neighborhoods. Both parties
claimed at the time that was probably enough to make a difference in that
race.

So for the short-term political calculation that op worked for the
Republican Party, but for the long-term that was a bad move because they`re
still living with the consequences of what they did there and the fact they
got caught for it, because the Democratic Party sued them over what they
did in New Jersey that year and the Democrats won.

And now, 35 years later, the Republican Party is still trying to get out
from under the legal restrictions that were placed on them because of them
getting caught and losing that case. And that is the problem that Donald
Trump has now gotten the national Republican Party into tonight. In that
news footage from that time in 1981, you saw those arm bands that the
ballot security task force wore, right?

Well, until last night, you could apparently go to a website called stop
the steel or another called vote protectors, both of them ended up
redirecting you to the same place. If you went to those websites until
tonight, you could use something called an ID badge generator. You enter
your details and print out effectively this year`s version of the
Republican Party`s ballot security task force, semiofficial looking arm
band from 1981.

This year in 2016, it`s a – look, this is the badge you get if you use
that thing online – a vote protector semiofficial looking ID badge.
That`s the picture there and the name of a reporter from “The Huffington
Post” on the left. She also added in Joe Schmoe, not a real person and a
picture of the Pepe the frog racist Trump caricature from online to show
that you can enter anybody`s photo, right, and anybody`s name and get one
of these badges. Makes you look quasi-legit, right?

Back in the day when they got in trouble for it in New Jersey, the
Republicans` ballot security task force, they targeted 75 different
minority heavy precincts. In Camden, in Trenton and Newark, New Jersey.
This year, the pro-Trump vigilante effort, the forces using the fake ID
badges, the folks doing these online tutorials teaching people how to
videotape and live stream video of voters at their polling places.

This year, they haven`t just picked just three minority heavy cities in one
state. This year, the effort is targeting minority heavy cities in swing
states, Cleveland, Ohio, Detroit, Michigan, Philly, Las Vegas, Milwaukee,
Ft. Lauderdale, Richmond, Virginia, Fayetteville and Charlotte, North
Carolina.

These are parallel efforts, right? What the Republicans got caught for in
1981 was organizing these supposed poll watching intimidation schemes,
specifically in minority-heavy areas. What`s that list look like to you
for 2016? Right? They only did it in New Jersey in 1981, now they`re all
over the map. But you see the theme there.

Also, a key element of the intimidation back in the day that they got
caught for was that they used off-duty law enforcement in that New Jersey
operation. That helped both in terms of – you know, these intimidating
ballot security task force personnel having firearms, right? They`re off-
duty cops, off-duty sheriff`s deputies, they`ve got guns. They`re
comfortable carrying them. That helped.

It also helped in terms of giving a quasi-official character to the
intimidation factor in these minority areas. I mean, yes, random citizens
can still be very intimidating on their own whether or not they`re armed.
But when you get law enforcement to do it, that`s like – that`s like the
gold standard.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: We have a lot of law enforcement
people working that day. We`re hiring a lot of people. We`re putting a
lot of law enforcement.

We`re going to watch Pennsylvania very quickly. We`re going to watch
Pennsylvania go down to certain areas and watch and study and make sure
other people don`t come in and vote five times.

Let me just tell you, I looked all over Pennsylvania. And I`m studying it.
And we have some great people here. Some great leaders here of the
Republican Party. They`re very concerned about that. And that`s the way
we can lose the state.

And we have to call up law enforcement and we have to have the sheriffs and
the police chiefs and everybody watching because if we get cheated out of
this election, if we get cheated out of a win in Pennsylvania, which is
such a vital state, especially when I know what`s happening here, folks. I
know.

She can`t beat what`s happening here. The only way they can beat it, in my
opinion – and I mean this 100 percent – if in certain sections of the
state they cheat. OK? So, I hope you people can sort of not just vote on
the 8th. Go around and look and watch other polling places.

(END VIDEO CLIP)

MADDOW: “You guys go make sure. You guys go watch. We have a lot of law
enforcement. Get out there, too. We have to call up law enforcement. We
have to have sheriffs and police chiefs and everybody watching.

We have a lot of law enforcement people working that day. We`re hiring a
lot of people. We`re putting out a lot of law enforcement.”

A lot of observers of this election, journalists and just regular citizens
have been a little ughed out by the Trump campaign and Donald Trump
himself. Not just saying the election is rigged, that the election is
being stolen, but telling his supporters to go out and do this vigilante
poll watching in swing state cities in particular.

(BEGIN VIDEO CLIP)

TRUMP: And when I say watch, you know what I`m talking about, right? You
know what I`m talking about. Take a look at Philadelphia, what`s been
going on. Take a look at Chicago, St. Louis.

(END VIDEO CLIP)

MADDOW: It`s not been a subtle thing. And I think – I do think a lot of
people have been ughed out about it when Trump has been calling for people,
you know what I mean, go out and watch in these cities.

But listen to what he`s saying there about the getting law enforcement out
there to do the watching. I mean, beyond the ick factor of what he`s been
doing, the fact that this just seems a little sketchy to a lot of people,
but beyond that, there is this now plainly observable fact and legally
important fact that what the Trump campaign seems to be ginning up for
election day this year is really a carbon copy of what the Republican Party
did back in 1981 with their arm bands and their off-duty cops and their
targeting minority districts, right?

That`s what they did in 1981 in New Jersey. That`s very clearly exactly
what they are trying to do now, targeting minority districts, having law –
off-duty law enforcement show up, right? Identifying themselves as semi-
official officials of some kind, right?

It`s an exact parallel to what they did in 1981 in New Jersey. That`s not
just an interesting parallel in history. It`s now a huge, huge legal
problem for the Republican Party. And don`t just take it from me. Take it
from the man who for many years was the top lawyer in the Republican Party.

(BEGIN VIDEO CLIP)

BEN GINSBERG, REPUBLICAN LAWYER: That`s a huge problem for the Republican
Party. The Republican National Committee is under a consent decree that
severely limits its Election Day activities because of some actions back in
the `80s. If the RNC prosecutes that the consent degree due to come off
next year will not come off.

The RNC is still under the consent decree. They`re very eager to have that
consent decree come off next year when it expires. And this activity, I
can promise you will cause the Democrats to go back into court to try to
extend it.

(END VIDEO CLIP)

MADDOW: Ding. That was Republican lawyer Ben Ginsberg warning after the
last debate that what the Trump campaign and Republicans were threatening
in terms of this poll watching effort that Trump keeps talking about out on
the stump, threatening – he was saying that is – that is a clear and
present danger to the Republican Party because when they got nailed for
doing that same thing in the New Jersey back in the 1980s, when they got in
trouble for that with the court, they ended up signing a consent degree
that prohibits them from doing any poll watching like this whatsoever
because of their terrible history with this stuff.

The Republican National Committee is banned from any Election Day poll
watching stuff at all that in any way targets minority districts. They`ve
been banned, legally banned from doing that stuff since the 1980s. And
it`s really important to them that they follow what they are legally bound
to follow here because that consent decree restricts what they`re allowed
to do and that consent decree is finally due to expire next year. The only
way it won`t expire is if the court finds the Republicans are violating it,
that they are doing racist poll watching again in defiance of the court in
which case that consent decree won`t expire next year, it will get extended
for another, oh, eight years or so.

Ben Ginsberg on our air sounded the alarm last week that the Trump campaign
was edging up against a legal line there. We reported on Monday that the
Trump campaign`s activities very much looked like they are violating this
order with the consent decree, with the way that Trump was asking for
people to go do poll watching. Then last night, “Huffington Post” reported
that the online training for Donald Trump poll watchers, for them to learn
how they can live-stream and videotape people while they were voting. And
here`s where you go online to download your fake, semiofficial looking
badge that defines you as a vote protector.

And now, tonight, it`s happened. The Democratic Party has just filed
papers in court in New Jersey asking that court to hold the RNC in
violation of that ancient consent decree to which they are still legally
bound. They`re asking the court to stop the RNC from helping the Trump
campaign organize these poll watch voter intimidation efforts in minority
areas around the country. They`re asking that the consent decree should be
extended since they say the Republican Party is in violation of this
consent decree, Democrats say it should be allowed to expire, should be
extended another eight years until 2025. So, those papers were filed in
federal court tonight.

I told you that Donald Trump was creating a big problem for the Republican
Party here. This is going to prove to be a fascinating new test of whether
or not the Republican Party thinks it is in its interests to officially try
to dump him in some way ahead of this election that he really looks like
he`s going to lose anyway.

We`re told by election law experts tonight including Rick Hazen from the
University of California Irvine, we`re told that this case, now that it`s
been filed, it may hinge on whether or not the Republican Party can tell
the court that they`re totally divorced from Donald Trump, that anything
highways happening by Trump supporters, that anything that Donald Trump is
asking him supporters to do, anything happening from the point of view of
the Trump/Pence campaign, that has nothing to do with the RNC. He`s not an
agent of the RNC. They can`t be judged by his behavior, held accountable
for it. That may be the only way the Republican Party can legally save
their skins on this.

We`re also told to expect that the court may act very fast on this case
given that the election is less than two weeks away. One of the things the
Democrats are asking for here is the federal court to immediately step in
and stop these poll watching efforts that Trump and Pence continue to try
to organize. We`re further told tonight that if the court does move on
this case quickly because of the timing, because of the stakes, this may
rocket quickly right to the United States Supreme Court.

As the Republican Party tries to stop Donald Trump from burying them once
again in a hole that they have spent 35 years trying to dig themselves out
of.

Now, I should tell you, we reached out to the RNC for comment on this
tonight after this filing went in. This is exactly what they told us.

They told us, quote, “The filing is completely meritless. Just as in all
prior elections in which the consent decree was in effect, the RNC strictly
abides by the consent decree and does not take part directly or indirectly
in any efforts to prevent or remedy vote fraud. Nor do we coordinate with
the Trump campaign or any other campaign or party organization in any
efforts they may make in this area. The RNC remains focus on getting out
the vote.”

Part of the reason Ben Ginsberg said in our coverage of the last debate
that he could guarantee the Democratic Party was going to file this motion
tonight in federal court is because the Trump campaign was bragging,
they`re bragging to reporters and bragging on the stump, bragging in
interviews that they were working with the RNC, working with the Republican
party up and down the ballot, working with the national Republican Party,
working with the state parties, working with the local parties on this
effort to protect the integrity of the vote.

Watch those polls. They`ve been bragging that they`re working with the RNC
on this. The RNC in this statement tonight telling us they do not
coordinate with the Trump campaign or any other campaign or party
organization in any efforts to prevent of remedy vote fraud. In order to
save the Republican Party on this, they`re going to have to divorce
themselves from Donald Trump. I wonder if they`ll think it`s worth it.

The candidacy of Donald Trump for president of the United States has not
been a gift to the Republican Party this year. But on a night like this,
with this much at stake for the party, this thing they`ve been trying to
defeat for 35 years and him plainly not caring about it at all, what does
he care if the Republican Party is still stuck – you know, he doesn`t
care. It`s not going to affect him after this.

The Republican Party`s got to be looking at these court filings and looking
at this guy thinking, what else can this guy do to us?

I don`t know what`s going to happen here, but watch this to move quickly in
federal court in New Jersey. Watch this space.

(COMMERCIAL BREAK)

MADDOW: You know, they say thanks to cable news that the news cycle is now
24 hours long, which is ridiculously short. You`re welcome.

Today, I would say, though, is a little different. Today, we got the news
cycle so tight and so fast it was more like whiplash than it was an actual
cycle. Particularly on the issue of polling and who is now winning the
presidential race. We`re going to need some expert help to figure out some
of what happened today. What of it makes sense, what of it`s important and
what of it you can disregard.

We`ve got that experts decoding help coming up tonight. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Twenty years ago exactly, 13 days out before the election that
year in 1996, Senator Bob Dole was not just losing in the polls, he was
getting eaten alive. In the three-way race between President Clinton,
Senator Dole and Ross Perot, Dole was behind Clinton by a margin of
something like 17 points at this point in the race.

And the Republican Party saw what was coming. The party leadership
basically gave up on dole altogether. They told their down-ballot
candidates to save themselves, feel free to distance yourself from the top
of the ticket.

And so, 20 years ago, 13 days before that election, just as we`re 13 days
before this one now, 20 years ago, Bob Dole hatched a plan. He did
something no one expected.

(BEGIN VIDEO CLIP)

TOM BROKAW, NBC NEWS ANCHOR: Good evening.

It appeared to be an act of desperation. Bob Dole way behind in the polls
sent an emissary to ask Ross Perot if he would get out of the race and
endorse him. Unfortunately, for Dole, it backfire. It gave Perot an
opportunity to belittle the Dole campaign.

When it got out that Dole sent his campaign manager to Perot and Perot
dismissed his request out of hand, it was one more bad piece – one for
piece of bad news for the Republican candidate.

NBC`s David Bloom is with him tonight as he`s been all during this
campaign.

David, Bob Dole not a happy man tonight.

DAVID BLOOM, NBC NEWS REPORTER: Tom, unhappy is putting it mildly. A top
Dole aide said this was a Hail Mary pass and when it failed and the story
quickly leaked, Dole was angry and it showed.

Spurned by Ross Perot and admittedly frustrated, Bob Dole lashed out today
at voters –

BOB DOLE, FORMER U.S. SENATOR: Wake up, America.

BLOOM: At President Clinton`s ethics.

DOLE: This is a disgrace.

BLOOM: And especially at the liberal media who dole blamed for trying to
engineer his defeat.

DOLE: We need the media to tell the American people the truth and the
truth is that Bill Clinton ought to be voted out of office in a landslide.

BLOOM: In Washington, Ross Perot called Dole`s maneuver weird and totally
inconsequential. Democrats called Dole desperate. And privately, several
top Dole aides admitted to being stunned and disappointed that Dole would
even try to court Perot.

But this afternoon in a huge rally in front of Alabama state capitol, Dole,
former Governor George Wallace looking on, focused instead on questions of
presidential character.

DOLE: Is there no honor in this administration or in this White House?
Don`t inflict this on America for four more years.

BLOOM: The problem for dole is that he`s having to spend much of this week
campaigning in what should be core Republican states already, Florida,
Texas and Alabama.

(END VIDEO CLIP)

MADDOW: That was the Bob Dole campaign 13 days out from the 1996
election. That Hail Mary overture to Ross Perot. And Ross Perot swatting
it down and leaking it.

And we are also now 13 days out from our presidential election this year.
It is – it is a fair point there at the end of that package from NBC that
to note that Bob Dole, one of the ways you can really tell he was in
trouble was the fact that he was having to campaign in deep red states like
Alabama.

I mean, Republican leaders were abandoning Bob Dole all over the country,
but he did go to Alabama in the waning days where he at least got former
segregationist George Wallace to rally with him. Really, Bob Dole? Why
did you do that?

This year, it`s not Alabama where Pence and Trump are campaigning. It`s
Utah. That`s where Republican vice presidential nominee Mike Pence held a
campaign rally tonight in Salt Lake City, Utah.

Tomorrow, Mike Pence is going to be in Nebraska. A second deep red state
that Republicans have not lost since 1964 and where they should never have
to campaign.

Now, I mean, in the parallels aren`t exactly the same. Luckily for the
Trump campaign, there is no Ross Perot to humiliate the Republican
candidate this year, right? I mean, the Trump campaign doesn`t stand the
risk of asking Mr. Perot to please drop out of the presidential race only
to have it backfire, have Perot call it weird and get, you know, ridiculed
for it.

The closest thing the Trump campaign has this year the a third party
challenger is not Ross Perot, it`s probably the libertarian ticket of Gary
Johnson and Bill Weld.

Well, today – well, now, Bill Weld has just endorsed in the other
direction, although he`s being a little coy about it. At a press
conference, Bill Weld released a statement saying if you`re deciding
between the two major party candidates don`t vote for Donald Trump.

This is what he said, “Not in my lifetime has there been a candidate for
president who actually makes me fear for the ultimate well-being of the
country, a candidate who might in fact put at risk the solid foundation of
America that allows us to endure even ill-advised policies and the normal
ebb and flow of politics. I would like to address myself to all those in
the electorate who remain torn between two so-called major party
candidates. I have come to believe if Donald Trump, if elected president,
he would not be able to stand up to pressure and criticism without becoming
unhinged and unable to perform competently the duties of his office.

Donald Trump is not stable. Donald Trump should not, cannot and must not
be elected president of the United States.”

But beyond that, no further guidance from the libertarian vice presidential
candidate Bill Weld. His advice is, if you`re choosing between two major
party candidates, don`t choose that one. Don`t choose Trump. But you can
do the math yourself to figure out what you should do instead. I`m not
endorsing Hillary Clinton, but you can figure it out.

That`s actually nicer than what Ross Perot did to Bob Dole in 1996. Trump
and Pence should maybe be happy with that.

(COMMERCIAL BREAK)

MADDOW: When you woke up this morning and checked your phone or whatever
it is you look at first thing to get your news, you probably saw a headline
like this one declaring that the polls are tightening between Hillary
Clinton and Donald Trump. We have seen some recent evidence of that. A
Bloomberg poll of Florida voters today showed Donald Trump actually up by
two points in Florida.

Most other Florida polls have shown Hillary Clinton very consistently ahead
in that state. We also have the NBC/”Wall Street Journal”/Marist poll
today showing Donald Trump tied with Hillary Clinton in Nevada. The early
voting numbers for Trump in Nevada have looked terrible, but they`re tied
in the latest poll out of that state.

Then, as I mentioned at the top of the show, there was no national polling.
There was this new “A.P.” national poll that`s out tonight that puts Donald
Trump nationwide, 14 points behind Hillary Clinton. Trump is only at 37
percent in this new national poll that just came out tonight from the
“A.P.”.

For a little perspective on that, go back to 1984 when Walter Mondale only
took one state in the whole election that year. If Donald Trump really is
at 37 percent right now, which is what he`s at in this new “A.P.” national
poll that just came out, if he`s really at 37 percent, then Donald Trump
right now is polling 4 points worse than Mondale did in this electoral
scenario.

Which is finito, right? But one poll is just one poll. And just as we
were digesting that mammoth new lead in that “A.P.” poll with Trump down by
14 points, just as we were digesting that, we got another poll from FOX
News.

And, FOX News, of course, editorially, is conservative but their polling is
for real. And tonight, the new FOX News says, yes, Hillary Clinton is
leading nationally by only by 3 points. And that`s in a poll with a 2 1/2-
point margin of error.

So, she`s winning nationwide by 14 points, she`s winning nationwide by 3
points. I mean, obviously, there isn`t a nationwide election. It all
comes down to individual states, but still I`m popping numbers from the
“A.P.” and FOX today and ones that don`t make much sense together.

How should we make sense of these numbers? Where exactly are we at right
now? We`ve got expert help on that, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: They are going crazy because they put out these phony polls and
then the real polls come out. So, today, Bloomberg has a poll, they`re
very disappointed. Trump is up in Florida by two points.

(END VIDEO CLIP)

MADDOW: They`re very disappointed. These crooked pollsters. Got their
thumb on this.

Joining us now is Harry Enten. He`s senior political writer for
fivethirtyeight.com. He`s a young man we`ve been increasingly turning to
for poll interpretation help.

Harry, thanks for being here.

HARRY ENTEN, FIVETHIRTYEIGHT.COM SENIOR WRITER: Pleasure.

MADDOW: What do you make of the “A.P.” national poll coming out tonight
showing Clinton with a 14-point lead right before FOX comes out with a
national poll showing her with a 3-point lead? How do we absorb that
information responsibly as humans?

ENTEN: Well, I would say what I always say and that`s average them, right?
We`re going to always average the polls. But you have to keep in mind
we`re getting 50, 60, 70 polls day now. Survey Monkey released all these
polls on the state level. So, you`re going to have outliers one way or
another. You have a center curve, right, normal curve, you`re going to
have some on the left part, some on the right part.

And this was the case where the FOX News poll was on the left part and you
had the “A.P.” poll from the right part. And they had a poll from ABC News
this morning which had her up about 9 points, which is right about in that
center part.

MADDOW: Just don`t believe anything that looks too much unlike the other
things you`re seeing?

ENTEN: Essentially that`s right. You know, if something seems too good to
be true, it probably is.

MADDOW: Or too bad to be true.

ENTEN: Depending on your angle.

MADDOW: Based on the way you look at the polls and the data that you look
at and your systems for absorbing it responsibly – do you feel like it`s
fair to say that the race is tightening a bit right now?

ENTEN: If it`s tightening, it`s barely tightening. The last model had
Hillary Clinton with, say, a 7-point lead and now, maybe, it`s like 6.3.
That`s tightening. But if Donald Trump continues to tighten the rice by
that much, with, you know, a little less than two weeks remaining, he`s
just never going to be able to catch Hillary Clinton.

MADDOW: Unless he tightens the race at a faster pace, there isn`t enough
time left.

ENTEN: That`s exactly right.

MADDOW: And part of that time calculation is how many votes have been cast
already. We`ve got well over 10 million votes cast already. Is there
anything that tells you that you`re watching in particular that`s
particularly prescriptive or illuminating in terms of the early vote?

ENTEN: Well, you know, you have to be very careful, but some states
changed the way the rules from early voting from year to year. But I`ll
tell you, in the state of Nevada for instance, John Ralston is a very good
reporter out there, will tell you that the trends look the same as in 2012
and that was a year when Hillary Clinton carried that state – sorry,
Barack Obama carried that state by seven percentage points. So, it looks
different for Hillary Clinton but overall, I`d be careful about reading too
much into the early vote.

MADDOW: Is there any one state you`re looking at, whether polling or early
voting numbers that you feel like you`re counting on as a barometer in
terms of how the race is going to overall?

ENTEN: I think there are two states. One is Florida and the other is
Pennsylvania. Donald Trump must win in Florida and Hillary Clinton must
win in the state of Pennsylvania. And while that Bloomberg poll did show
Donald Trump leading in the state of Florida, there were three other polls
today that had him down by three percentage points. And that`s where the
average has been. It`s very bad news for him in that state.

MADDOW: So, if you could only look at two states per day from here on out,
you`d look at Florida and Pennsylvania.

ENTEN: Right.

MADDOW: Harry Enten, senior political writer for FiveThirtyEight, thanks
for being here. I appreciate it.

ENTEN: Thank you.

MADDOW: All right. Much more ahead tonight. Stay with us.

(COMMERCIAL BREAK)

MADDOW: This year on the show, I have fallen in love with a place I have
never been. I`ve falling in love with Iceland. Started this summer with
their soccer announcer losing his mind so joyfully, it`s still ringing in
my ear.

And then it was the way that Iceland welcomed their soccer team home. With
a big Viking clap.

Tonight, more evidence that it is right and good to fall in love with
Iceland even if you`ve never been there. We`ve got new polling in
elections for the Icelandic parliament. We`re going to start from the
bottom.

It goes Bright Future, then Social Democrats, then Regeneration, then
Progressive, then Left Green, then Independents, then finally the Pirates.
The Pirate Party of hackers and anarchists whoever else just feels like
being a pirate, they`re on course to win next week in the parliamentary
elections in Iceland even over the parties named Bright Future and
Regeneration.

I`m not jealous exactly. I`m just thinking maybe we could aim a little
higher when naming our own parties there. OK?

More from our own partially pirated election, straight ahead.

(COMMERCIAL BREAK)

MADDOW: All right. The very first question in the last debate between
the two presidential candidates was an open-ended question about the
Supreme Court. Where do you want to see the Supreme Court take this
country?

And Hillary Clinton went first. She responded in a sort of tight direct
way. She said she wanted a Supreme Court that stood up for the people
against powerful interests that otherwise get their way. She said she
wants the court to uphold Roe V. Wade and uphold major equality. She said
she wants the court to overturn Citizens United to get dark money out of
politics. It was just tight, down the line, name check several decisions.
She was first.

And then the moderator turned the same question to Donald Trump. Where do
you want to see the court take the country? How in your view should the
Constitution be interpreted?

And Donald Trump`s answer was that there`s this one justice on the Supreme
Court who said a bad thing about me once and that was terrible. And if you
think I`m being hyperbolic, I understand, you think I`m being hyperbolic.
I`m not, though. That`s exactly where he went right off the bat in
response to an open-ended question about the Supreme Court.

(BEGIN VIDEO CLIP)

DEBATE MODERATOR: Secretary Clinton, thank you.

Mr. Trump, same question. Where do you want to see the court take the
country and how do you believe the Constitution should be interpreted?

TRUMP: Well, first of all, it`s great to be with you and thank you,
everybody.

The Supreme Court, it`s what it`s all about. Our country is so, so – it`s
just so imperative that we have the right justices. Something happened
recently where Justice Ginsburg made some very, very inappropriate
statements toward me and toward a tremendous number of people, many, many
millions of people that I represent. And she was forced to apologize and
apologize she did, but these were statements that never should have been
made.

(END VIDEO CLIP)

MADDOW: Donald Trump, what`s your view of the importance and the proper
role of the United States Supreme Court, thank you for being here, Justice
Ginsburg once said a mean thing about me, isn`t that terrible? But enough
about me, what do you think about me?

That was just a weird moment to start the very last debate. Right off the
top, first question, what`s important about the Supreme Court is something
one justice once said about Donald Trump.

On the one hand that was just a fantastic display of ignorant narcissism,
right? Hey, guess what, the Supreme Court isn`t about you.

But it`s also possible that it was more than that as well. Because Justice
Ruth Bader Ginsburg having once said a critical thing about Donald Trump
really isn`t the most important thing everybody needs to know about the
Supreme Court of the United States unless, unless the Supreme Court of the
United States on which she sits is going to be called on to decide the
presidential election between Hillary Clinton and Donald Trump.

Right now, there are only eight justices on the Supreme Court since Justice
Scalia died. Four of the remaining justices were appointed by Democrats,
four were appointed by Republicans. For more than seven months now,
Republicans in the Senate have refused to even consider President Obama`s
nominee for the ninth seat on the court. And so, it is 4-4 ideologically
speaking.

And if the Supreme Court deadlocks in a 4-4 tie, they can`t rule. I mean,
if hypothetically Clinton versus Trump goes through a contested recount
situation in one state like George W. Bush versus Al Gore did in 2000, and
if that happens and if the Supreme Court was narrowly divided like they
were in Bush versus Gore, we wouldn`t have the option this year of getting
a 5-4 ruling. If the justices broke on partisan lines, we would, in fact,
get a 4-4 ruling and that would mean they could not issue a ruling to
decide about the contested recount in whatever state was contested.

And so, some random lower court or some board of elections decree in some
backwater somewhere would be left to decide who was president of the United
States. And then hopefully, fingers crossed, hopefully we`d all decide
we`d go along with it, right, because some partisan elected state judge
somewhere said who the president should be, so the whole country and the
whole world would all salute and go along with it for four years,
hopefully?

Just a nightmare a nightmare scenario, right, for the country. A nightmare
scenario of the legitimacy of the presidency. A contested election and a
4-4 tie on the Supreme Court. That means it can`t be nationally resolved.

But you know what? Nobody ever said you needed to have five votes to have
a Supreme Court majority. Right now, it`s an even number on the court.
Eight justices with a 4-4 ideological split, which could conceivably lead
to a 4-4 tie.

But if one of the justices was pressured into recusing herself, then the
court would be 4-3, not 4-4. And 4-3 is not a tie. So, if one justice
could be persuaded to recuse from a case involving a contested presidential
election, then a closely divided Supreme Court could decide a contested
election. It would just be a 4-3 ruling.

And if Justice Ginsburg were the recusal, it would be a Republican majority
4-3 split, Donald Trump wins.

(BEGIN VIDEO CLIP)

TRUMP: Justice Ginsburg made some very, very inappropriate statements
toward me.

(END VIDEO CLIP)

MADDOW: When Donald Trump answered a question what is important about the
Supreme Court and he immediately answered by attacking Justice Ginsburg for
something critical she once said about him, I`m not saying that wasn`t a
shocking display of raw narcissistic self absorption in terms of what`s
important about the Supreme Court. But it also may have been him laying
the groundwork how he would contest the election if he can get it close
enough or wild enough of that the election results somehow winds up in the
courts.

He is already laying the groundwork for demanding Justice Ginsburg`s
recusal.

Meanwhile, President Obama`s nominee to fill the vacant seat on the court
has been weight 7 1/2 months since the president nominated him while
Republicans won`t give him so much as a single hearing. Will that nominee,
Merrick Garland, still be the nominee for the Supreme Court if Hillary
Clinton is elected in two weeks? Or will she pick her own nominee once she
is sworn in January?

If Clinton does win, will Republicans suddenly change their mind about
Merrick Garland and decide they want to confirm him after all, right after
the election, so they can fill that seat with a known quantity before the
new president Clinton has a chance to pick somebody new for the bench? And
in that instance, Clinton`s running mate, Vice President-elect Tim Kaine,
he would still be in the Senate and able to cast a vote.

How would he vote if that happened?

(BEGIN VIDEOTAPE)

MADDOW: If the Senate goes Democrat in November, and if you and Hillary
Clinton win on November 8th, the Republican-controlled Senate will have the
opportunity in the lame duck to change their mind about Merrick Garland –

SEN. TIM KAINE (D), VICE PRESIDENTIAL CANDIDATE: Yes.

MADDOW: – to try to approve him because they would worry that somebody
more liberal would come along.

KAINE: Or 20 years younger.

MADDOW: Yes.

KAINE: I mean, even if it was the same person 20 years younger, I don`t
know if I want that. So –

MADDOW: If that happen, and that`s not outside the realm of possibility,
President Obama would then have the opportunity to withdraw the nomination
in deference to President-elect Clinton. Do you think President-elect
Clinton at this point would want Merrick Garland to be the nominee? What
she pick somebody new? What would you want?

KAINE: Well, I haven`t talked to Hillary about it. So, I`ll just tell
you, this is in criminal of the Republicans. Mitch McConnell has been very
unequivocal. We`re not taking him up.

MADDOW: Yes.

KAINE: We`re not taking him up.

But the prospect of them seeing an election saying, boy, maybe we should,
they will make that call. If he comes up for a vote in the Senate, I`m
voting for him, you know, because he so clearly gets over the hurdle of the
fitness and character test that is supposed to be the test for advise and
consent.

But, you know, if the session ends and he is not approved, you know, then
Hillary should appoint the person that she thinks meets her criteria for
being on the Supreme Court. Should she consider Merrick Garland? Of
course. But that is who President Obama said this meets my criteria.

Hillary will be the president. It`s not Bill Clinton term 3, and it`s not
Barack Obama term 3. It`s Hillary Clinton term 1. And she should make the
decision what she thinks is her criteria for that vacancy.

(END VIDEOTAPE)

MADDOW: Tim Kaine speaking with me last night about whether or not Hillary
Clinton is going to renominate President Obama`s pick for the Supreme
Court, Merrick Garland if she is elected president in two weeks. No one,
including Clinton herself or Kaine here last night or anybody associated
with the Clinton campaign, nobody is clearly stating that she would pick
someone different than Merrick Garland if she is elected.

I think, just my take from the way they all talk about it, though, that
it`s fairly reasonable to expect now that she would pick somebody other
than Merrick Garland if she is elected. And that`s going to be really
interesting, because if that happens, President Obama is going to be in
this position after the election where the Republican-controlled Senate
really might all of the sudden be willing to approve Merrick Garland, his
Supreme Court nominee. And at that point President Obama will have to
consider whether he wants to have his nominee approved to sit on the
Supreme Court or whether he instead would withdraw that nomination so
Hillary Clinton would be free to pick her own choice when she is sworn in
January.

And I think I know what President Obama would do in that instance. But are
you sure?

The Supreme Court and the presidency are always intertwined. This year
it`s starting to feel less like that traditional intertwining. It`s
starting to feel more like they`re choking each other out.

(COMMERCIAL BREAK)

MADDOW: At the top of the show tonight, we broke the news that the
Democratic Party has filed motions in a federal court in New Jersey over
the sort of vigilante poll watching stuff that the Trump campaign has been
threatening for Election Day. Donald Trump, Mike Pence, and some of their
supporters have been talking about an effort to flood Trump supporters into
cities in swing states, particularly minority heavy swing states, cities in
various swing states to watch the vote in those places, to make sure that
the vote isn`t stolen.

It`s an inchoate effort. There has been some unusual stuff, including
Trump talking about including law enforcement to be part of that effort.
And until last night when “The Huffington Post” started asking pointed
questions about it, there was apparently an online effort to sign people up
for this vigilante approach of poll watching, an effort that included an
online forum where people could printout their own semi official looking
badge to make themselves look like they had a reason to be at poll watching
places while they videotaped people while they were voting. And reported
on whatever was happening there.

Tonight, we reported that the Democratic Party has filed papers in court in
federal court in New Jersey, saying that the Republican Party is in
violation of a on sent decree that they`ve been bound to, that they entered
into after they got caught doing some egregious racially-target poll
watching in the 1980s. The Republican Party is legally bound not to do
this kind of stuff anymore.

As of tonight in federal court in New Jersey, the Democratic Party says the
Republican Party is doing it again. They want the court to intervene to
stop them.

It`s pretty dramatic development in what has been a very edgy part of this
campaign. We`re going to have Republican lawyer Ben Ginsberg, who is
formally the general counsel for the RNC. He is going to be with us here
tomorrow night to try to understand what this means. He is probably the
leading expert in the country in terms of the Republican Party`s side of
this argument. That should be fascinating.

But that does it for us tonight. We will see you again tomorrow.

Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL.”

Good evening, Lawrence.


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BE UPDATED.
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