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.
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.
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.
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.
(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.
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.
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.
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?
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.
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.
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.
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.
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.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END