The Rachel Maddow Show, Transcript 11/06/14

Guests: Jack Jacobs, Joe Gerth

RACHEL MADDOW, HOST: We`ve had a 2016 no-talk ban written on the white board in my office. (inaudible). Today, I tried to erase it. It`s been up there for so long, it`s now permanent. So thanks for breaking the ice now. CHRIS HAYES, MSNBC ANCHOR: That would be hilarious if you just obeyed that through 2016. MADDOW: Until I can find some nail polish remover. Thank you. And thanks to you at home for joining us tonight. Funny thing just happens in one of the most conservative places in the country and I mean that in the technical sense. The American Political Science Review recently published a study that ranks the most conservative and most liberal cities in the country. You might have seen this when it came out. It got some buzz. The top ten lists for most liberal cities and most conservative cities were kind of what you would expect, right? There were some surprises. For example, the ranking for the most conservative city in the whole country went to Mesa, Arizona, of all places. Here`s Mesa, Arizona. It is part of what the sprawl of Phoenix turns into as you head east from Phoenix. It`s the sprawl basically between Phoenix proper and the Phoenix Airport. They`re all right there in the same vague, suburban sprawl east of Phoenix and apparently that is as conservative as you can get in the whole country. That region of the country, their congressman is Republican Matt Salmon. Matt Salmon has a 100 percent perfect rating from the American Conservative Union. He is the congressman who made news not that long ago when his own son came out as gay. And Matt Salmon said in response that that would not change his views at all on opposing his own sons to get married and his own views that gay people including his son should be banned from adopting children, wouldn`t change his views one bit. In the elections this week in this part of the country, these were the local election result headlines and they are voting for Congress and they are voting for state senators and they are voting for state legislators. They`re just Republican, Republican, Republican, all down the line. But check this out. Something funny just happened in this part of the country. Last week, the school board in Gilbert, Arizona made some news when they decided they were going to rip pages out of the biology textbooks in the local public high schools. The section of the Honor`s Biology textbooks that mentioned contraception and abortion, a local school board decided they were going to cut those pages out of the textbooks. They cited an Arizona law signed two years ago by Republican Governor Jan Brewer, which mandates that instruction in public schools in Arizona be explicitly anti-abortion. And, based on that law, they decided in Gilbert, Arizona, that the page of the biology textbook that explains that there is such a thing as abortion, they decided to cut that out. That was last week. That was a 3- 2 vote on the local school board. The sort of Tea Party majority on that local school board cast the deciding votes that those textbooks should be redacted, that those pages should be cut out. A crusading religious group called "The Alliance Defending Freedom," they came and gave a presentation to that school board encouraging them to do it. The Senate president from the Arizona state legislature and two other Republican state senators came to the school board meeting and encouraged that school board to vote to cut those pages out of the biology textbooks. And they took that vote last week and it passed. They say they`re now gathering volunteers from the community. People who want to volunteer to help rip out pages from the school textbooks. Now, two things have happened since that news. The first things is that Gilbert, Arizona this week has an election just like everybody else. Gilbert, Arizona voters went out and voted this just like the rest of the country did on Tuesday night. Voters in that area, as I said, they voted back in. They are really, really conservative congressman and their conservative Republican state senators and conservative Republican state legislatures. It was a conservative, Republican romp there, just like it always is except on the school board. That specific, local body that just voted to tear out the pages from the biology textbook, they just lost their Tea Party majority. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: Meantime, in Gilbert, the controversial school board most recently in the news was ordering some pages removed from a biology text will be losing its conservative majority. Voters soundly rejected two conservative candidates for two open seats instead they reelected an opponent of the conservatives and elected a former high school principal to the board. (END VIDEO CLIP) MADDOW: So the people who voted against censoring the biology textbooks, they will all be returning to the local school board, plus there will be one new member who agrees with them on the issue. So that will be the new majority. And that happened this week even as other every other election in that very far right part of the country went very far right. Apparently, the biology textbook thing was a bridge too far. So that specific part of the election went the other way. In the run- up to the election, teachers at the local high school were reportedly painting the names of their anti-Tea Party candidates on their car windows to try to get local parents to support a school board that wouldn`t tear up the books. People sent out mailers letting parents know about the plan to cut the pages out of the textbooks. I don`t know exactly what worked in that small scale campaign against the Tea Partiers on that school board, but it worked. The new school board without the Tea Party majority will be sworn in in January. So what happens in the meantime? Because the page-tearing parties, they are apparently already planned. The board members who voted to take the pages out of the textbook, they said, as soon as they got that vote, that vote, quote, "The cheapest, least disruptive way to solve the problem is to remove the page." Remove the page. So do they go ahead with it now? If the kids in the high schools in Gilbert, Arizona hide their biology textbooks until January when the new school board gets sworn in and the Tea Party folks have to leave, will that save their textbooks? Save their school books from getting cut up? That`s one thing that`s happened. The election had a very interesting result there. Here`s the other thing that`s happened though. When that news first broke in Arizona that they were going to start cutting pages out of the Honors Biology textbook, we got a copy of that page that they wanted to cut out. And we posted it online at a web address we bought especially for this occasion in order to cover the story properly and convey this information adequately, I felt like you should be able to see what they had decided to sensor in Arizona. So we bought If you go to, if you go there, you can see what`s so offended this Tea Party folks on the local school board that they decided they would have to rip that page out of the books. That said, if you`ve ever read a book, you`ll know that the way books are printed. You can`t actually just tear out one side of a page, right? If you tear a page out of a book, there`s something on the other side of that page, too. We have been wondering ever since we first started covering the story, what else they were going to be tearing out of that book because it just happened to be on the flipside of that page that had the dreaded mention of abortion. It has taken us a few days to find it, but we did finally get what`s on the backside of that page. It turns out it`s the page on sperm, a whole page about sperm and how sperms work. I had no idea. Well, we`ve got that page, now, too. And in so doing, we have apparently saved the sperm for Arizona. How ironic? At, you can now see both the page that mentions abortion, which is the reason they want to tear that page out of the textbooks. And you can also see the innocent standard sperm page that was just getting cut out of the textbook by virtue of being on the other side of the page from the mention of the dreaded word abortion. Arizona Honors Biology students, if you get to Section 27.8 of your bio textbook and you find that you`re a state senator and your school board have succeeded in getting the pages ripped out there, those pages are now accessible safe and sound online. So like when you get to the AP test and it has a question about what sperm do, you don`t have to make it up from stuff you heard around the locker room. You can actually read the page, Now, here`s the latest. Now that the Tea Party majority was just voted off of the school board in this incredibly conservative part of the country, now that there`s all this uncertainty as to whether that means the textbooks are going to be safe in the next couple of months before the new school board gets sworn in. Today, we heard from the Gilbert Arizona School District and they told us, basically, that the ante is being upped. According to the Gilbert Arizona School District, today, it is no longer just this book, just the Honors Biology textbook used at four local high schools in that district that is going to have the pages torn out, now they are also planning to quote, "redact" these four other biology textbooks as well. Some of these other textbooks are used in other Honors Biology classed in the district. Some of them are used in the school`s AP classes, advanced placement biology classes for which you are supposed to be able to get college credit. All right, none of these textbooks advocate abortion or get anywhere near to advocating abortion. They are boring, regular, middle-of-the-road textbooks. All they have is political information, accurate information, about human reproduction and how it works. The lawyer for the State Board of Education in Arizona has told the local school board that there`s nothing in these textbooks that violates any laws. They don`t have to rip anything up. But, in Gilbert, Arizona, at least under the old majority of the school board, they have decided to go for it anyway. We just have an election in this country in which the Republican Party got even more conservative than it already is. And it got even more power than it already had. In state legislatures, among governors, in the House of Representatives, and of course, in the U.S. Senate where they just took over for the first time in eight years. All right, they not only got more power, they became a more conservative party as they took power. The part of the country that, by some measures, is more conservative than any other part of the country. Took full part in electing the kind of really, really conservative Republicans that part of the country has favored for a long time now. But, even there, this is too much. Arizona Republicans really did passed a law mandating that public school`s overtly teach anti-abortion messages. But when that mean tearing the pages out of textbooks and the sperm page thereby gets torn out, too? What did sperm ever do wrong to Gilbert, Arizona to deserve being collateral damage like this? When it comes down to actually seeing laws like this in action, not just ideologically debated on TV, or not just batted around as a campaign issue. When you actually see these laws in action in your kid`s school, apparently the most conservative place in the country has had enough. What happens next year is that the existing board, which is still controlled by the Tea Party folks until January. They are supposed to hear from school administrators within the next couple of weeks as to exactly they ought to proceed with the censorship and the tearing up of the books. So I guess, we`ll see if the schools can hold them off long enough or if the kids, I guess, can hide all the books, safeguard the books until the new school board get stated in January. In the meantime, though, there`s for everybody`s use and reference. We will keep you posted. There are lots more ahead tonight. Stay with us. (COMMERCIAL BREAK) MADDOW: Operation Eagle Claw, that was the official name of the top secret joint operation of the U.S. Army, Navy and Air Force. They were all supposed to work together on the night of April 24th, 1980 to do something that, on paper, looked like it was going to be impossible. Their mission was to fly into Iran and rescue American hostages who were being held there. Get the hostages out alive, get themselves out alive. Get in and out of Iran, in and out of hostile Iran on a top secret, very difficult rescue mission. That was the plan, 1980. It did not work. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: Good morning, everyone. This is Friday and this is a special edition of the "Today" program that will continue now. We began more two and a half hours ago. We`re reporting to you on the extraordinary developments that we`ve been learning about throughout the night here in New York, in Washington and in the Middle East. Briefly to summarize for you, President Carter went before the nation at 7:00 a.m. today Eastern Time to report on the failed effort of the United States rescue team to get the hostages out of Tehran. FORMER U.S. PRESIDENT JIMMY CARTER: Late yesterday, I canceled a carefully planned operation, which was underway in Iran to position our rescue team for a later withdrawal of American hostages who have been held captive there since November 4th. Equipment failure in the rescue helicopters made it necessary to end the mission. As our team was withdrawing after my order to do so, two of our American aircraft collided on the ground following a refueling operation in a remote desert location in Iran. (END VIDEO CLIP) MADDOW: Eight members of the Armed Forces were killed in that operation that went so disastrously wrong in 1980 trying to free those hostages in Iran. And beyond the enormity of the tragedy of those eight deaths and of those 52 Americans who were still being held hostage in Iran because of the failure of that mission. It was also just a very sobering realization about newly-learned limits of what we can do, right. This was supposed to be the United States of America doing this top secret thing, rescuing its citizens. No one was supposed to know about it until the ad succeeded. It did not succeed. Instead, what happened, it was the United States of America aborting its plan, and, in the process of its plan, suffering this accident resulting in those eight deaths and then having to tell the whole world about what happened. It was just a disaster. And as disasters often do, it resulted in a lot of people and, ultimately, a lot of change. That mission and what went wrong about that mission resulted in the United States changing, in some ways, the very structure of the U.S. military. Changing the structure so that our Armed Forces could successfully plan for and executive a near impossible complex high-level secret mission like "Operation Eagle Claw" in the future. One of the things they did was create organizations that were highly focused on the most difficult and important and secret missions that the military might ever be asked to do. And one of the organizations that was created is called SEAL Team 6. They`re not really called that officially. They`re called the Development Group under the auspices of the Naval Special Warfare Command. But they are famous as SEAL Team 6. They`re really famous as SEAL Team Six. They are a household name, right. They are what we use as shorthand for elite special operations forces. We think of them, especially as civilians who know only of them what we`re told, right. We think of them as almost super-human. Frankly, they are assigned tasks repeatedly by our country that almost assumed that they are super- human. In our culture, the word SEAL Team Six evoke a deep feeling of, wow, those are the guys that can do anything. And the guys who can do anything and will never talk about it, right. And we feel that way about them because they really do, do stuff that no one else can do. In April, 2009, just to take a very recent example, almost three decades after that failed recovery effort in Iran, an American ship, container ship, called the Maersk Alabama was attacked by pirates off the coast of Somalia. The captain of that ship, Captain Richard Phillips was taken hostage. The Somali pirates are demanding a huge ransom. They were threatening to kill him. The United States has a policy of not paying ransom and the U.S. government, in this case, decided to mount a rescue operation, instead. The standoff lasted four days before SEAL Team Six saved that captain. (BEGIN VIDEO CLIP) UNIDENTIFIED FEMALE: Just hours after four pirates took Captain Richard Phillips hostage aboard the lifeboat, two separate teams of Navy SEALs were air dropped at night into the water and taken aboard the U.S. destroyer Bane Bridge. Over the next four days, the Navy kept up constant surveillance from the water and above with a scan eagle, an unmanned drone. But there was no clear shot at taking down the pirates without risking Captain Phillips` life until Sunday. As the seas turned rough, the Navy convinced three remaining pirates to allow the Bane Bridge to tow the lifeboat to calmer waters. With Navy SEALs in firing position, they would see one pirate in the pilot house holding a gun on Captain Phillips who was tied up. Suddenly, the other two were in sight. In an instant, all three SEALs fired a single shot at the same time killing the three pirates. (END VIDEO CLIP) MADDOW: That rescue. That it technically very difficult rescue, was one of the more high profile operations that Navy SEALs have carried out in the last few years. It`s not the most high profile mission they`ve had in recent years, though. Everybody knows what that one was. (BEGIN VIDEO CLIP) BARACK OBAMA, PRESIDENT OF THE UNITED STATES OF AMERICA: Tonight, I can report to the American people and to the world. The United States has conducted an operation that killed Osama Bin Laden, the leader of al Qaeda and a terrorist who`s responsible for the murder of thousands of innocent men, women and children. (END VIDEO CLIP) MADDOW: Landmark moment in our country`s history. A moment a lot of the people will never forget, President Obama announcing that Osama Bin Laden was dead. At the time that announcement was made, we were told that was a team of 23 Navy SEALs. It was a team that had 23 SEALs, a translator, a combat dog. We were told that those basic details about who was there on the ground conducting that incredibly difficult, dangerous mission. There`s never really any expectation that we would ever know who exactly those people were, right? They operate in secret. But in the years since that raid, two of the people who were in on that raid have made themselves publicly known. It started in 2012 when one of the members of that SEAL team wrote a book about the raid and about his own rule in killing Osama Bin Laden. He wrote the book and then he gave a national TV interview explaining how the raid happened and his role in it. He initially used a pen name, both for the book and for the interviews, but he has since started using his real name. The following year, last year, a different member of that SEAL Team gave an interview to a national magazine saying that actually he was the one who killed Bin Laden. It was him, not the guy who had written the book the previous year. That second Navy SEAL team member, the one saying that he fired the fatal shot, he did not reveal his name in that "Esquire" magazine interview that was published last year. He apparently was planning on doing that, revealing his identity. Next week, on the Fox News Channel, Fox has been announcing for a week now that they will reveal the identity of the man who killed Bin Laden. Meanwhile, journalists who have written about that raid on Bin Laden`s compound including Peter Bergen at CNN has sources telling him it was neither of these guys. Quote, "The point man who fired the shot that likely mortally wounded Bin Laden would never in a million years be publicly about his role." Therefore, it was not either guy who has publicly spoken about his role. You know, most of us were not Navy SEALs or special operations forces. Among we who have not deployed a dozen times to a half dozen different war zones in the past ten years and done all these things with these incredibly elite forces have done. Among us, are you really less-impressed with the Navy SEALs who are on the ground in that Pakistani compound, that night in May, but who didn`t fire the shot that killed Bin Laden, right? Are we any less impressed with the accomplishments or the capabilities of some SEAL Team Six members depending on which one of them fired which bullet in which order causing which injury or death? I don`t think any of us expected to ever know any of the details, the personal details of who did what on that specific raid. But that is now what`s being fought about out in the open. And what are we supposed to make of it? The head of the Naval Special Warfare Command, his name is Rear Admiral Brian Lowsey. He took a remarkable step a few days ago and published this open letter to all Navy SEALs. I will quote from part of it, quote, "At Naval Special Warfare`s core is the SEAL ethos. A critical tenant of our ethos is I do not advertise the nature of my work nor seek recognition for my actions. Our Ethos is a lifelong commitment and obligation, both in and out of the service. Violators of our ethos are neither teammates in good standing, nor teammates who represent Naval special warfare. We do not abide willful or selfish disregard for our core values in return for public notoriety and financial gain, which only diminishes otherwise honorable service, courage and sacrifice." A letter from the commanding officer of the part of the Navy that means the SEALs to all the SEALs in the country, a publicly release. There`s so much deserved respect for who these elite forces are, who these guys are. Not just what they have accomplished, but who they are. And what it took to become that elite as a member of the United States Armed Forces, right. There are so much respect for who they are and the way they operate in the world of special operations. For us to now see them fighting with each other publicly over stuff that we are not supposed to know about at all as civilians, what are we civilians supposed to make of this? Has this sort of thing happened before? Honestly, it feels to me like I don`t know how to feel about it. Joining us now is MSNBC military analyst, Retired U.S. Army Col. Jack Jacobs. Colonel Jacobs, thank you for being here. It`s nice to have you here. COL. JACK JACOBS, U.S. ARMY (RETIRED): Thanks for having me. MADDOW: First of all, let me ask you just in terms of what I said there in terms of what we expected to know and the fact that, I think that we as civilians never expected to have a name attached to a trigger puller for that individual raid? Is that fair? JACOBS: Yes, I think it is fair. There are a lot of things that have to take place which are best to take place behind closed doors is too much of a cliche. What`s really important is not how it`s done, but the fact that it is done. If we say anything else, as the admiral said, we diminish the efforts of all of those who participated. One of the interesting things about a SEAL team indeed any military team is the notion of team. Yes, there are a lot of individual heroics and there is a lot of individual effort. But at the end of the day, we do achieve to fight the mission and all of that. We fight to defend the republic, but we fight as a team for each other and self (inaudible) doesn`t go very far in the circumstance like that. It does in fact diminish us all. MADDOW: There has been some discussion as far as I can tell, the first place that the name of -- the guy who is identified as the shooter in "Esquire," who is going to be identified apparently on Fox next week. The first place that his name was openly reported was on a web site that is maintained by retired SEALs. That is maintained by people who are in this community and it appears to have been posted essentially as a protest to the fact that this man was going to make himself known as an individual. Is there a case to be made that these guys ought to identify themselves once they`re out of the service? Because essentially the service profits from their exploits like the military has been marketing what the SEALs can do. Literally, they made a movie about special operations capabilities and what the SEALs can do specifically. That essentially uses what these folks do in a way that aggrandizes the services and hopefully brings recruits and resources with the service. Should they be able to (inaudible)? JACOBS: Well, intentions mean a great deal in almost every human endeavor and there are two levels to look at this. The first is whether or not releasing a name, an action or, indeed, anything else, is going to have a deleterious effect on our ability to conduct operations in the future or on the safety of individuals who are still in the business. Our second level -- or on another level, is the notion that we don`t have an official secrets act like they do in Great Britain where you are sworn to secrecy. You`re not allowed to say anything ever. And you sign it. By the way, maybe some of the fallouts from this would be a move to do something like this in the United States among service people. If you want to be a member of a special operations unit, you`re going to have to sign a non-disclosure agreement and you`re going to be prosecuted if you violate it. We have a different view of military service in this country. We had the different view of the first amendment in this country than anybody else does, anywhere. This is the first amendment country and to the extent that you are not hurting anybody or ruining anything. You can actually say anything you damn well please unlike other countries, including in Great Britain where slander is very easily proved. Where libel is very easily proved and in this country, you could say just about anything about anybody and very nearly get away with it, unless you can show intent and damages and all the rest of that stuff. So, the whole notion of being in a country where we have the First Amendment where we can say anything is at odds with our notion about what people who serve this country ought to be doing with themselves, even if they`re no longer in service to this country. I remember many years ago when I was decorated, I was at a dinner, and one of the guys there was Jimmy Doolittle, the guy who commanded the raid right after Pearl Harbor on Tokyo. Medal of Honor recipient, I was actually in the room with Jimmy Doolittle. And he came up after the dinner and he put his arm around me, took me in the corner. He said, let me tell you something, son. He says, you`re no longer Jack Jacobs. You`re Jack Jacobs, Medal of Honor recipient. And you`re going to have accordingly, you have to act accordingly. You can`t be the same person you were before. And there`s an argument that says once you`re a SEAL you`re always a SEAL, and you can`t act any differently for the rest of your life. MADDOW: Seeing the commanding officer of the SEALs make this public statement, both talking to SEALs and saying it publicly, this is our culture. This is the cultural norm here and we will enforce it, essentially, within our community is a message to us about the seals as much as it is a sort of rebuke of anything going on in that community. JACOBS: Well, it`s a rebuke of our desire always to know absolutely everything, and it`s not that we shouldn`t know as much as we can possibly know. But in some juncture, it diminishes us all. MADDOW: Retired U.S. Army Colonel Jack Jacobs, recipient of the Medal of Honor, our nation`s highest military award -- thank you for being here, sir. JACOBS: Thanks for having me. MADDOW: Good to have you here. All right. Ahead, while we were still trying to figure out how Tuesday`s elections will change the way we do politics, one particular politician is already hard at work trying to change the way his state does elections. Stay with us. (COMMERCIAL BREAK) MADDOW: Still to come tonight, we`ve had some late-breaking news tonight from the federal courts. This is a decision that was not widely predicted. It seems to have landed as a big surprise. But that news is just ahead. Stay with us. (COMMERCIAL BREAK) MADDOW: Funny thing about election night in Kentucky this week. Kentucky Senator Mitch McConnell, of course, won re-election and his party got control of the United States Senate. So, he gets to run the Senate now. It`s a big change for the country. It must be a very exciting time of life if you are Mitch McConnell. Senator McConnell gave a very rousing, very pleasant nine-minute speech after he won, standing on the stage with his wife. But that speech, funny thing, that was not the only action on stage in Kentucky on Tuesday night. About half an hour before Mitch McConnell came out to address his supporters, McConnell campaign headquarters became Rand Paul campaign headquarters. Rand Paul took the stage half an hour before Mitch McConnell did ostensibly to get the crowd hyped up about Mitch McConnell. But Rand Paul being Rand Paul, he barely even mentioned Mitch McConnell in his speech. Instead, he just gave a version of his own Rand Paul stump speech. (BEGIN VIDEO CLIP) SEN. RAND PAUL (R), KENTUCKY: Tonight, we begin to rebuild America by freeing up American ingenuity, freeing up all forms of energy. Tonight, we say to the president, yes, we did build that. We say to Hillary Clinton, yes, businesses do create jobs. (END VIDEO CLIP) MADDOW: And to be clear, this was not Rand Paul re-election night. He wasn`t running this year. This was Mitch McConnell re-election night. But in case Rand Paul didn`t put too fine a point on it there by railing against Hillary Clinton in his speech, he finally just got right to the point about what exactly he was doing there. (BEGIN VIDEO CLIP) PAUL: If the president rejects the will of the people, if the president insists on vetoing bill after bill, then in 2016, the people will rise up and reclaim our heritage and elect a lover of liberty, who will restore the values of our Founding Fathers. UNIDENTIFIED MALE: Rand Paul! (CHEERS) (END VIDEO CLIP) MADDOW: Who, me? Me? Stop. Rand Paul, even though he was not on the ballot this year, he had a lot personally riding on what happened in Kentucky this year, because Rand Paul, obviously, really, really wants to be president. And Rand Paul has a significant, technical problem in Kentucky if he does want to make a run for president, because there is a pesky Kentucky state law which says you cannot run for two federal offices at the same time. Rand Paul is first elected to the Senate in 2010. That means his Senate seat after six years will be up in 2016. 2016 is also the year that he wants to run for president. A Kentucky state law says, you can`t run for both. Pick one. You can`t run for two federal offices at the same time. Republicans in Kentucky have been trying to fix this for Rand Paul for a while now. Earlier this year, in Kentucky State Senate, which is controlled by Republicans, they passed a bill to run for president and Senate at the same time. But Republicans only controlled the Senate. Kentucky Democrats controlled the House. And the Democrats have said that they have no intention of changing state law just to give Rand Paul job security in the Senate while he simultaneously runs for president. Republicans and Rand Paul thought they could solve this problem this year by flipping the Kentucky House on Tuesday night to Republican control. But that did not happen. Republicans didn`t take the House. Democrats hung onto control of the Kentucky House on Tuesday night. And so, problem, right? This is a problem. Well, tonight, there is an amazing new development about how they`re going to try to finagle this thing for Rand Paul. While Rand Paul was at that Mitch McConnell victory rally on Tuesday night, he reportedly huddled in private for about 30 minutes with the chairman of the Republican Party in Kentucky. According to reporting in, the two discussed the idea that would allow Rand Paul to run for president and Senate at the same time in the same year, even though state law says you can`t do that. Basically the idea is this, if you can`t be on the ballot for running for Senate and running for president, the new idea is that they won`t be doing a ballot for running for president in Kentucky. They`ll get rid of the Kentucky presidential primary. Seriously. That`s the idea. Again, Kentucky state law says your name cannot appear on the ballot for more than one office, because Rand Paul would have to appear on the same primary ballot for Senate and for president. The solution is to get rid of the ballot for president. Quote, "One new under consideration is to change Kentucky`s May primary into a caucus system, instead, since most caucuses do not vote by paper ballot, Rand Paul could theoretically avoid that restriction in the law." See? The law is about putting your name on the ballot. If you got rid of the ballots, then. They`re apparently not kidding with this. The chairman of the Kentucky Republican Party confirms to Politico that they are in fact thinking about abolishing the state`s presidential primary because doing so would help Rand Paul get around Kentucky state law. He told "Politico", quote, "He`s got as many questions about it as I do. He`s just curious about how it would work." How would it work? Is this actually a thing that Kentucky Republicans can do? How psyched will Kentucky be to abolish its means of choosing presidential candidates specifically so they can help one of those candidates who apparently is planning on running but losing, because he wants to have a back-up job for when he loses? How psyche is Kentucky going to be about that/ Joining us now is Joe Gerth. He`s a political reporter for "The Courier-Journal" in Louisville, Kentucky. Mr. Gerth, thanks very much for being with us. Pleasure to have you here. JOE GERTH, THE COURIER-JOURNAL: Thank you, Rachel. MADDOW: So, how would this work, exactly? Would Republicans just be changing the presidential nomination system for themselves? Or would they be changing it for the whole state? GERTH: Well, I`m not sure if it can work, to be perfectly honest with you. MADDOW: OK. GERTH: Just a little bit before I came on the air here, I looked up the state law. And the state law says that political parties shall select all their candidates by primary. So, it`s a little bit unclear to me at this point exactly how they would plan to go about doing this unilaterally without the help the Kentucky House and Kentucky Senate. MADDOW: Is it -- it may be that they`re spit balling, but they`re spit balling in such a way that it`s getting into the national political press who`s writing every day, sort of with increasing frequency about Rand Paul`s political prospects. Does it seem like to you that this is a technical matter, that they will be able to find some way around it? Or, this is substantive problem for him. GERTH: You know, it is a problem, but, at the same time, there may be some work-arounds. This has been some top of him just not running for president in the primary in Kentucky. MADDOW: Oh, wow. GERTH: That would allow him to be on the ballot for the U.S. Senate. Kentucky`s primary is very late in the year, one of the last. Rarely, if ever, figures into the presidential nominating process. If he were to do that, then he could run for Senate, he could run for president and he wouldn`t be harmed if he lost. The problem with that is Kentucky also has a law that says unless you`re dead or somehow disabled, incapacitated and can`t finish out the election, then if you drop off the election, or off the ballot, your party can`t replace you. So, that could -- if you were to do that, find out too late to drop off the ballot, that he was not -- that he was going to be the presidential nominee, then at that point, if he dropped off, the Republicans kind of stuck high and dry and unable to replace him on the ballot, turning that seat over to the Democrats potentially. MADDOW: That`s amazing. And just the prospect, even if it worked, the prospect that you have to run for president without running at home because home won`t let you -- I mean, it`s been interesting to see the public`s reaction of this. A poll conducted earlier this year by your newspaper on the subject, I saw, showed that 66 percent of Kentucky voters would oppose changing the state law to allow Rand Paul to run for both offices. GERTH: Right. MADDOW: Is -- I mean, that -- is that the ground conversation in Kentucky about this? Are people talking about it yet? Or is still a trivia at this point? GERTH: I think it`s more trivia at this point. Also, Paul talked to people about challenging I believe it was a Supreme Court case out of Nebraska, maybe that ruled that the states could not put term limits on federal candidates or federal officeholders. They believe that that law says, that ruling basically says that they cannot, in fact, put additional restrictions on a candidate in Kentucky and, therefore, limiting ballot access is illegal. MADDOW: Wow, that would take some gymnastic lawyering, but I bet they do it if they have to. Joe Gerth, political reporter for "The Courier-Journal" in Louisville, Kentucky, thanks for helping us understand this tonight. I really appreciate you being here. GERTH: Sure, happy to do it, Rachel. MADDOW: I should note that we originally had commitments tonight from two of the top Democrats in the Kentucky to appear on the show to discuss this issue tonight. But, then, mysteriously, just a few hours before the show, suddenly, neither of them were available any longer. A sudden and unforeseen scheduling issue arose, they said. I don`t buy it at all, but I don`t know what happened yet and I`m trying to find out. I will let you know if I do. (COMMERCIAL BREAK) MADDOW: Surprising development today from the federal courts. In the federal court system at the first level, there are trial courts, federal district courts all over the country where federal judges hear trials. They hear from witnesses. There`s a jury. Everything you expect from a normal trial. One level above that are courts that just hear appeals. At the circuit court level, they don`t oversee trials like they do in the lower courts. They just hear appeals from other court decisions. But then one level above the appeals court, that`s the Supremes. Not those Supremes, sorry. The Supreme Court. They are the top appeals court in the country. And that means that one of the important things they do is when the appeals court below them disagree on something, it is the Supreme, the Supreme Court has to settle the disagreement. There`s lots of different ways that constitutional law gets made, but a big part of it is just that there is this hierarchy of the courts. And somebody has got to be Diana Ross. Somebody`s got to be Supreme. And over the last year or so, there have been rulings from a whole bunch of those circuit courts, the courts in the middle, right? A whole bunch of rulings that all said that same-sex marriage cannot be banned by the states. The fourth circuit, the seventh circuit, the ninth circuit, the tenth circuit court, they all said the same thing about gay marriage. Well, tonight for the first time, a circuit court has said the opposite. It`s the sixth circuit court that has jurisdiction over Kentucky, Michigan, Ohio and Tennessee. Today, that appeals court there, that circuit court said that those states can ban gay marriage. So, now, because of the hierarchy of the court system, now that means that the Supreme Court may have to weigh in here directly, because for the first time, there is a split in the courts that are just one level beneath them. And there`s only one Constitution, and a right either has to be a constitutional right or it`s not. And the Supreme Court has been desperate to not have to decide this matter for the whole country. But now, with what happened tonight, they`re probably going to have to -- unless they can weasel out of it somehow. Watch this space. (COMMERCIAL BREAK) MADDOW: All right. Chart imitates life. Are you ready? 2010, the last time the Republicans had a huge mid-term year. They take more seats in the state legislatures than anytime since 1928. How many times have we said that in terms of explaining what`s going on in the states for the last four years. They just ran the table in terms of taking over the states. Well, Tuesday this week, Republicans increased their control over state governments. They took another, oh, 310 seats in state legislatures. So, look at what that means in terms of overall control in the states. Right now, when it comes to total control of state legislatures, one party having majority in the whole state legislature. There are eight states now under complete Democratic control -- Oregon, California, Hawaii, Illinois, Vermont, Rhode Island, Connecticut, Delaware. They all have legislatures that are all blue, eight of them, as opposed to 29 of them that are totally red. As of the close of the polls on election night, the Republican Party had control of state legislatures in 29 states, 29 out of 50 states. You know what? Then today, let`s make it an even 30. Overnight last night, a state senator in West Virginia, a Democrat, left the Democratic Party and flipped his registration to Republican. In West Virginia, the State Senate had been a tie between the two parties, but him switching flips control of the Senate there to the Republicans. Republicans also got control of the state house in West Virginia on Tuesday night for the first time in 83 years. So, with the House going, and that one party-switching state senator, his name is Daniel Hall (ph), with that decision, he made West Virginia the 30th state in the country where Republicans now control both houses of the legislature. Complete Republican legislative control in 30 states. And we`ve only got 50 states. Elections, consequences. Democrats, do you guys have a catch-up plan for the states here or what? Because the trend here is obliterating. That does it for us tonight. We will see you again tomorrow. Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL". THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END